I wasn't able to live-blog as much of the hearings as I intended because Blogspot had some periodic problems and I did several radio interviews during the hearings. But the Comments section was certainly vibrant and full of excellent analysis.
I thought that when I debated Professor Turner this morning, I had confronted the most extreme end of the pro-Bush fantacism. But I was mistaken. Tomorrow at 2:10 p.m. EST, I'll be on NPR's To the Point to discuss the NSA hearings with Powerline's John Hinderaker. John is confused that there are any hearings at all, because there is nothing to discuss; it's so clear that the President had the right to eavesdrop outside of FISA that there's no issue at all. I'm looking forward to that discussion.
I'm working on a post regarding my view of today's hearings and where I think we go from here, which I'll have posted somewhat later. I thought today was most notable for its lack of surprises. The Democrats did better than they did at Alito but not great. The Republicans did not fail to display their fundamental Bush loyalty. And Gonzales recited his script quite faithfully, with a few exceptions. The Administration has baldly stated its view that the President has the power to exercise all incidents of war - including against Americans within the U.S. - without any interference from the courts or congress. That view is now out in the open for all to see.
Thus, in the absence of the emergence of smoking gun evidence reflecting abuse, where this scandal goes from here will, I believe, depend on what the media does with it and what the public is tolerates and demands.
Typo in last sentence. I think it should be 'will tolerate'.
ReplyDeleteProcedural question - What are the possible avenues from here? What can this committee realistically do or recommend?
Keep up the great work.
Whoops. Ignore my questions, which are what you clearly stated you were already working on in the post.
ReplyDelete...Hilary having the same extraordinary (read monarchial) powers that they so readily embrace in the case of St. George?
ReplyDeleteIt's pretty obvious that, when one party makes lasting changes in the fundamental understanding of law in a politiy that must redound to their advantage when they next return to opposition, that party has no intention of ever returning to the opposition again.
Thanks for keeping me updated on the hearings.
ReplyDeleteWithout the media being honest about the lawbreaking and powergrabbing that this all is, what chance do we have? Without any responsible Republicans willing to stand up to this, what do we do? We do not have enough votes to stop any of this at present. Should the party be blasted out of it's sleep and told that if they do not put more into 2006 elections than they did in 2004 they might as well forget about the future? The public conciousness needs to be raised. If infomercials can be on endless why cannot the democratic party put edufomercials on?
ReplyDeleteDude, you did a great job on C-SPAN.
ReplyDeleteOkay, sorry about that "dude," but I just watched it and I was all excited.
Glenn --
ReplyDeleteWhile Feinstein touched on it, what is the explanation of the Administration for the clause in FISA allowing the President warrantless wiretapping for 15 days after Congress declares war? According to Gonzalez, FISA is Constitutional, he just doesn't think it applies in time of war. So what was the point of that clause? According to him, wouldn't that clause be unconstitutional because it appears to limit Presidential powers in wartime? These might be questions for Hindrocket tomorrow...
Gonzo in fifty words or less? Specter isn't going to swear me in, but you can swear as much as you want. . .
ReplyDeleteAnd that was the high point.
Just listened to your clip on C&L, Glenn. You were a handful of aces!
ReplyDeleteGlenn - I just watched the clip of you posted on Crooks and Liars when a very confused woman called in and spouted some of the GOP talking points. You were wonderful, and made the points that needed to be made. If only there were some hope that the irresponsible, reckless party in power would listen and understand this is not about one party winning and another losing. This is about the basic rights that all U.S. citizens have taken for granted that are being violated. Maybe you needed to reduce it to a sound bite as one of the other comments suggested:Illegal spying = BAD Following the law = GOOD. It seems to me that someone needs to hold Bush/Cheney's feet to the fire - make them prove that thousands of lives have been saved, and have this administration prove that anything of any value has been gained from illegal spying THAT WAS NOT AVAILABLE FROM OTHER SOURCES. They won't be able to do that, all they do is cloud the issue with name calling and dividing the country further. Thanks again for standing up for all of us!
ReplyDeleteRe: posting later, fyi, Blogger's announced a planned outage @ 7pm PST (in about 20 minutes)
ReplyDeleteDell, Why do you believe that the current administration will give up its grip on power come January 22, 2009? If the President's CiC powers grant him the prerogative to excercise whatever authority he wants, who's to say that he won't suspend elections and remain in power until the end of the "War" on "Terror"?
ReplyDeleteRemember, Cheney keeps stating that their administration is the only one that will keep Americans safe. A dictatorship may be the only way--as long as they control the hearts and minds the majority of our military.
Glenn,
ReplyDeleteYou're doing great work, thanks.
Seems like the administration is basing its claim to unrestricted executive privilege on the notion that we are "at war."
Are we? Has Congress officially declared a state of war? If not, does the rationale for what the Bushniks are doing evaporate?
The administration is preparing to start a PR campaign to paint this matter as the fault of the media for distorting the nature of the program. I expect this will work, as usual.
ReplyDeleteGlenn,
ReplyDeleteI'm not a lawyer, so I apologize if this is incorrect, but isn't there some sort of rule that a narrowly defined law should be interpreted narrowly? Specifically, the Attorney General argued that the AUMF acted as an implicit trigger for FISA's 'unless authorized by statute' statement.
Ignoring all of the other issues with this argument, since the AUMF explicitly does act as such a trigger in reference to the War Powers Act (another law the administration considers illegal) doesn't that mean that it should not be implicitly read to act as a trigger for any other statute? i.e. Congress is being specific, so they mean to be specific.
FISA is specifically decoupled from the War Powers Act as it makes no exceptions for war time (except for another explicit 15 day exception) so it can't be 'rolled into' the trigger for the WPA.
(BTW, yes, I know I'm being naive in expecting a legitimate argument from the AG)
John Hinderaker, Powerline, today:
ReplyDelete"I'll be on NPR's "To the Point" tomorrow, talking about the NSA's international terrorist surveillance program. I think my segment will start around 1:20 central time. The emphasis, I think, will be on the multiple reasons why the program is legal, in addition to being a good idea. Every once in a while--on relatively rare occasions--it actually comes in handy to be a lawyer." (He did not mention Glenn)
I love that last sentence. I really, really do. I'll be listening, Glenn, popcorn in hand.
Turner bloviated a ton of smoke and mirrors this morning and you did a good job of deflection it by pointing out that all of his court ruling supporting Presidential authority for warrantless wiretaps - predate FISA. Additionally, it seemed that Turner randomly shifted from foreign to domestic intelligence issues. D-Day is not the same as spying on all U.S. communications.
ReplyDeleteThese guys talk fast, throw a tun a spagetti at the wall and expect at least some of it to stick. Their main Achilles heel is Hamdi. Even turner claimed that the Hamdi decision upheld Article II Presidential powers - but as usual they neglect to mention that the Supreme Count found in that case that Judicial Review Was Required before a U.S. citizen could be treated as a Foreign Agent/Enemy Combantant.
Vyan
If the President's CiC powers grant him the prerogative to excercise whatever authority he wants, who's to say that he won't suspend elections and remain in power until the end of the "War" on "Terror"?
ReplyDeleteWith this bunch anything's possible, but I suspect a more likely scenario is that Bush unilaterally suspends the 22d Amendment and runs for a third term. He'll use the tried and true methods that won him the elections of 2000 and 2004 and when he wins (probably with 52% of the vote -- he wouldn't want the election to look too much like the ones Saddam used to run in Iraq), he'll state that the American people have spoken and that therefore his assumption of Caesar-like powers has the approval of the Nation. And that'll be that.
It was a nice Republic while it lasted. All hail C-Plus Augustus!
-- Basharov
This is going to the Supreme Court.
ReplyDeleteThey will be told to fuck off by our esteemed Mr. Gonzales.
Then, possibly the stupidest Preznit we've ever had will have caused the most damage to our democracy by one man ever imaginable.
sad, really.
Did someone say transcript?
ReplyDeleteSomebody did say transcript. Read transcript. Be dismayed. Do something about it. Just an idea. Express yourself to your friends, anyone who will listen. Anyone who won't.
ReplyDeleteGood luck keeping your head from exploding as you (1) formulate your rejoinders to some of the most disingenuous talking points in Christendom while (2) simultaneously juggling that you're on the air with a fellow member of the Bar.
ReplyDeleteBut I was mistaken. Tomorrow at 2:10 p.m. EST, I'll be on NPR's To the Point to discuss the NSA hearings with Powerline's John Hinderaker.
ReplyDeleteSounds like the nice folks at 'To the Point' did you a favor by finding a nice, ripe wingnut to vanquish. That guy still, apparently, hasn't figured out that he has the most homo-ridiculous name on the Internets. Jeez. I'll have to see if I can't get the pod-cast for that. Should be highly amusing.
After seeing Dick Durbin dismiss a Powerliner with a smirk and a wave of his hand today, it has become clearer to me that most members of the 101st Keyboard Brigade melt into sticky puddles when exposed to the hard cold light outside their mommy's basement.
Give em hell!!
Glenn,
ReplyDeleteGreat job on Washington Journal. I hope that NPR reaches an even larger audience.
You touched upon an important point that I have not heard often enough: no one knows who have been the targets of the unauthorized eavesdropping.
My corollary question is why was FISA bypassed. Is it a question of volume? I heard the court handled 19,000 requests over its 27 year history and over 1700 requests last year. So I don't think that volume would be the issue. And if it was a volume issue, that could be remedied by adding more capacity (more judges). If it is not a question of volume, then it must be because of a fear on the part of the president that the requests wouldn't clear even the low FISA bar. (only 4 or 6 warrants turned down, I believe).
Sorry, but Durbin got dismissed when the wingnut informed him that Dan Rather knew about them.
ReplyDeleteVery well done, Glenn, you made us all proud! Well prepared, logical, clearly stated and obviously correct, everything that every liberal talking head on television isn't. Maybe you could offer a school for unprepared TV liberals.
ReplyDeleteExcellent job on Washington Journal today, Glenn. I thought two points you raised were particularly strong: the country's decision to adopt FISA during the Cold War (when we confronted a threat arguably bigger than what we face now); and the potential for the unrestrained presidential powers under discussion lasting for the rest of our lives.
ReplyDeleteI have now made two passes through the hearing testimony. I think a very important point is made during the first round of Schumer's questioning. When asked about the internal dissention within the Justice Department regarding the concept of presidential authority derived from the AUMF Gonzales says:
ReplyDeleteThose disagreements did not arise over the "program the president has confirmed"
I did not pick this up the first time through. It came out in the second round questions where the same term of art was applied to questions regarding the opening of first class mail, bag jobs, etc.
The importance of this is that Gonzales is implicitly admitting that the NSA had other programs outside the scope of congressional authorization that have yet to be revealed, and that those who left the DOJ did so because of their disagreement with those programs.
I hope that I'm not in need of a tinfoil hat, but as a trial lawyer of over 30 years, I'm hearing Gonzales admit to additional, not yet revealed NSA programs that are even more egregious than the currently exposed program.
Glenn, you should take a serious look at this.
If I could find an email I'd shoot this directly to you.
Alaska Lawyer
While DC played their normal games, Vermont Citizens have taken action on impeachment. [ Details: Vermont has started the process; Details on the Approach. ]
ReplyDeleteThis will shortly hit for a vote, and there's nothing DC can do to stop this. This approach has been successfully tested in 1903, is consistent with the House rules, and the proclamation cannot be buried in the RNC-controlled committee.
There are many benefits to forcing this to a House floor vote: Namely it gives the voters a chance to see who is with or against the rule of law; and we have nine [9] months to then evaluate which new leadership we need in the state and federal positions. [Overview: Nine months]
There is nothing the RNC can do to stop this. The public will have nine [ 9] months to digest what happens, or gets in the way – what voters learn from this day forth will impact the November 2006 elections. The public will get to see at the local, state, and federal level who is with the Constitution or with this President’s rebellion against the Constitution.
Let your friends know that you can get this on your local community agendas, and get your leadership to comment and debate the issue. Here's a guide to explain how you can do this, with discussion questions and links. Click: Scroll down to the yellow boxes for discussion questions.
Americans just took back the Constitution and our Country.
Welcome back home!
Alaska Lawyer -- bingo
ReplyDeleteA tidbit in a federal magazine mentioned how the NSA had built a "huge (data) storage facility in Colorado, capable of "storing the library of congress every two days" (IE 20TB/Day)... that's enough for over 1,000,000 hrs of audio *every day*.. .
I think they've built a "time machine". Not only can they tap anyone and everyone (thanks telcos) but they can "travel back in time" and listen to everything said for years (4) back...
And then their's TIA. Never went away. Just went black.
The FISA flap is just the very tip of the iceberg. The rest will come out... too many people worked on it...
(Note: the above is all personal speculation, I have no inside knowledge).
Glenn,
ReplyDeleteCrooks and Liars had the clip with you responding to wingnut Turner and the huge wingnut caller from upstate NY who thought the ACLU should have been in the Twin Towers.
Your response was brilliant and courageous. You nailed these foolish, dangerous and mean-spirited people.
It's amazing that the so-called "Powerline" person could be even worse.
I have concluded that these people would be screaming Stalinists in another lifetime in their obedience to cant and their aggressive and sometimes violent rhetoric.
I thought two points you raised were particularly strong: the country's decision to adopt FISA during the Cold War (when we confronted a threat arguably bigger than what we face now); and the potential for the unrestrained presidential powers under discussion lasting for the rest of our lives.
ReplyDeleteThat last point needs to be stressed even more strongly. The dimmer bulbs (and--lets just say it--consciously ill-intentioned scum) seeking to defend this administration inevitably pull past war-time precedents out of their hats, such as the abuses of power during the World Wars or the Civil War (abuses, it's worth noting, that are looked upon by history as shameful). The U.S. is in no such "war" now. The only "war" it presently faces is one that exists solely in the rhetoric of the Bush administration (which has laughably transparent ulterior motives for using such rhetoric), Islamist reactionary terrorists (tiny gangs of criminals who fancy the idea that they're important enough for the U.S. government to declare "war" on), and whatever simple souls either side can convince to play along. There is no nation against which the U.S. is at war. There are no grounds for victory. Bush has offered, as a "goal" of his little "war" everything from the elimination of terrorists of global reach (which can never occur as long as aircraft fly the skies, ships sail the seas, and there's still air to put in bicycle tires) to the elimination of despotic regimes (many of them generously financed U.S. client states, and not likely to go away in the forseeable future) to nothing less than the destruction of evil! Bush's thugs have, indeed, said this is a "war" that will continue into the forseeable future, but merely pointing that out too violently understates the case.
I read the CNN article on the hearings twice. Earlier today, it was almost all about Gonzales's side. (Does CNN scrub their articles? I couldn't find the first version. Maybe I just imagined it all.) Read it now. It's all about the bipartisan opposition to Gonzales's testimony. The GOP talking-pointers get a couple of paragraphs near the end. The videos are of Gonzales being grilled.
ReplyDeleteMore to the point, the Democrats stood on principle for the Constitution and the American people today. No matter what else happens, I hope they know how great it was that they did that. They had integrity. They were strong. They knew what they believed in. They were right. They represented us.
It would be good to take time to thank the Democrats and Republicans on the committee who actually questioned Gonzales, or to unthank the ones who didn't. I wrote Orrin Hatch, unthanking him, and you can write your Senator too. It seems to me that this kind of positive feedback is important when they get it right.
I don't know how much better we could've expected. I don't know if I agree with Glenn that "The Democrats did better than they did at Alito but not great." Kennedy was incomprehensible, but the others were credible and pithy. There was bipartisan opposition to the Administration (all the Democrats and almost half the Republicans on the committee, two-thirds of the members in all). Sure, there was no Perry Mason moment, but there was some great video and the story doesn't have to die.
Like Glenn said, the program is exposed now for what it is: a power grab whose defense strains logic and the plain intentions of Congress. And Leahy and the others all put out on the table that they suspect the domestic surveillance goes far beyond what we've seen already.
Now, if we can only see the rest of the iceberg that is the President's surveillance programs...
Glen, you were great on Washington Journal. Congrats! I disagree completely, however, that the hearing was uneventful, as a HUGE thing happened that was totally unexpected: Gonzales revealed that the warrantless eavesdropping program that was leaked to the NYTimes about which everyone has been talking is only the tip of the iceberg, and there are other, domestic to domestic programs, no doubt FAR more invasive, that exist but about which he refused to comment. Everyone interested should go to The Volokh Conspiracy website and read Orin Kerr's two posts about the hearings and the comments to those posts to see this point addressed. I can't believe, Glen, that you do not think that is very big news, much bigger news than I think anyone thought would come out at these hearings.
ReplyDeleteAlaska Lawyer, no you are not imagining things. You picked up on the biggest thing to come out of AG's testimony. Moreover, there was a shift in AG's testimony. He first started using bland phrases like "this program" and "the program we are talking about", but later, apparently deliberately, changed his message and came right out and said thing like "the program that the President has confirmed", which made clear that there are other programs. If Glen concentrates on anything other than this point, I think he is completely missing the boat. I suggest, Alaska Lawyer, since you picked that up, as did others posting comments on this site but apparently not Glen yet, that you read the threads on the hearings at Volokh Conspiracy to see what others who concluded the same thing you did are saying about it.
ReplyDeletejustme said...
ReplyDeleteDoes anyone know where I can find a printable transcript of todays hearing?
Here:
http://www.washingtonpost.com/wp-dyn/content/article/2006/02/06/AR2006020600931.html
Glenn,
ReplyDeleteGood showing on C-SPAN! All too often, we end up with ill-prepared people who get trounced by mere GOP talking points.
UNITED STATES v. UNITED STATES DISTRICT COURT
ReplyDelete407 U.S. 297 (1972)
(b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate. Pp. 316-318.
Glenn, your coverage and your representation of 'We the People' is worthy of great praise and our gratitude and should cause embarassment for the Senator's who seem to have forgotten who they work for and what they swore to uphold and defend.
ReplyDeleteWe need to translate the fantastic coverage and comprehensive breakdown that you and the gang over at FDL as well as so many others provide and turn it into some common everyday outrage on the street. We need to put it in a context that every person of every culture and socio-economic station can understand and relate to.
It's the conundrum I'm facing while I build out my own medium. There are so many insightful people here and so many great blogs I'm following and I wonder, can we boil this down to 'that which can be felt by all'? Any thoughts? Anyone?
Nate
Over at The Corner, Andy McCarthy is arguing against Specter's admonition that the NSA warrantless surveillance issue should be submitted to the FIS Court for a judicial determination as to the program's legality. How odd; he and others have been insisting that the FIS Court has already declared that the President has the authority to conduct warrantless surveillance.
ReplyDeleteOn Jan 29, Powerline posted this, refering to the FIS Court's In Re Sealed Case:
It's not hard to figure out why the Times editorialists pretend that Sealed Case No 02-001 doesn't exist. It conclusively refutes their legal position:
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... 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.
Now, conservative law prof Orin Kerr has dismissed that language as inscrutable, confused dicta. But if McCarthy and Powerline are so sure it "conclusively refutes" opponents of warrantless surveillance of US persons, why not just march into the FIS Court and have it say what they insist they are sure it has held?
No, instead, McCarthy is actually implying that the Court might rule against Bush, and that the court lacks the authority to do that. Here is McCarthy:
Thus, if the FISA Court reviews the NSA program and opine against it, what is the President supposed to do? Discontinue a program that provides an early warning system against what could be a devastating attack? That is a call we elected him to make – the FISA court has no place making such judgments. ... The fact that the program might not pass muster under FISA in the view of the FISA court judges would in no way mean the program is improper or justify its termination.
By reasonable extension of that logic, the Supreme Court of the United States also cannot bind Bush. McCarthy suggests that Bush should just ignore any adverse ruling and with that, he has tosses Marbury v. Madison and judicial review right out the window. Folks, that is radical.
Bush unilaterally suspends the 22d Amendment and runs for a third term.
ReplyDeleteThere is zero risk of this. Bush is too lazy.
What bothers me is that the people who chose Bush as their spokesmodel will go soldiering on...
Jared doesn't own Subway™.
Under a divine-right monarchy, the King is never dead.
So Bush qua Bush is not the problem. He needs to be removed, but the people whose creature he is need to be removed as well.
We didn't do that with Nixon's gang in '74, and now they're back running the country again.
Could someone please explain why Gonzales continually made statements such as "the program we are discussing today" or "I can only talk about the program the president has confirmed". In listening to his testimony it struck me and others (see dkos diary "important development in Gonzales hearing" that this was implying that there are other eavesdropping programs that might not be limited as the one that was described i.e. international calls etc.
ReplyDelete"I don't think we can avoid a tough constitutional crisis by ignoring the plain words of the statute. ... That just defies logic and plain English!"
ReplyDeleteI think getting this quote made it a good day. If you want to keep Specter honest to it you have to repeat it over and over so he can't forget it.
I have to wonder if it isn't a warning, is the Administration going to provoke a constitutional crisis in the middle of a war?
With the NYT and the WaPo printing articles about how ineffective the program is, then why all this fuss defending it? Where there's smoke.....
Schumer was on Blitzer and at first the Beard tried to ping-pong him a bit on the spying, but Chuck got tip-toed on his soapbox and said it wasn't about spying, it was about how we spied and the Beard let him roll right on through the end of it.
He framed the issue pretty well so it's not the Administration framing it anymore.
I couldn't help but wonder how Martin Luther Kings's civil rights were violated and how having FISA in place would have stop it from being so?
Glenn,
ReplyDeleteI watched you on C-SPAN like many others have claimed, yet I failed to see where you feel you put Professor Turner in his place. In addition, I too watched yesterday's NSA hearings and once again we the American people received nothing more than a joke of a hearing about who doesn't have the balls to confront the inherent power of a president! I wish you luck in your cause, but I fail to see what you or any other blogger posting on this site has to offer the public in view of the terrible record of the Democratic party. Maybe while on NPR today, you can actually voice a position of where you think this country ought to head since you all feel so vehemently threatened by the conservative mind-lings of just ONE ADMINISTRATION! As a veteran of the military for over 22 years, it nauseates me to think I sacrificed so much of my life defending the narrow minded views of a bunch of do nothing, know nothing, amount to nothing politicians like Dick Durbin, Ed Kennedy, Joe Biden, and the rest of the spineless democrats in today's congress! TY and GOD BLESS AMERICA!
In a letter to the Boston Globe this morning, Harvey Silverglate offers this interpretation:
ReplyDeleteThe precedent that Bush seeks to establish by outright defiance of congressional limits on electronic snooping is but a gateway to far more radical defiance of Congress in areas where Bush cannot count on the legislature's slavish willingness to accommodate the executive's whims.
It's an intentional step in advancing the theory of the imperial, er, unitary presidency. If this one gets a pass, there's a lot more coming.
That "Yucca Mountain" data storage facility planned for CO needs more publicity. No question that even now, every citizen's electronic and phone conversations are monitored by the Big Brother computer filter--how else could they separate the bad guys from the good guys.
Russ Feingold is looking for people to sign a petition objecting to unwarranted snooping at
http://www.progressivepatriotsfund.com/page/petition/nsa0206
I know this is late. On the issue of questioning. I think it is time someone questions competency or makes it an issue. It seems to be just laying there for the dems to score political talking points. There seems to be a problem with the committee's ability to get the witness beyond the answer of “hypothetical”. Even Gramham had a problem getting Gonzo to answer a simple “caught between a rock and a hard place” question of what does a solider do when the law says X and the President says Y which is counter to X.
ReplyDeleteIf they are going to keep avoiding answering by saying “that's hypothetical”, then it is time to ask them if they thought about it. Sort of like this:
1. Do you consider yourself to be competent at your job? Is your staff? Is the administration? The answer has to be yes.
2. Then I and we the committee can assume that you and your staff and the administration have considered and assessed these “hypotheticals” as you call them? (Like thinking about the slippery slope questions).
Now, if he says yes, then the next question has to be: And what was your assessment and conclusion? If he answers “they are hypothetical”, or they had no conclusion then you have your opening to accuse them of incompetence for not considering the ramifications of their actions.
If he says no, they did not assess the hypothetical, then they are further still incompetent.
Sure, some will take issue with suggesting this implies incompetence. However, it does show that they did not do a complete job. And that to the nation is the political point.
Legal can be difficult in this dumbed down news system. However, everyone can understand when the person did not do a complete or thorough job. Once the issue of answering “that's hypothetical” has been tied to suggesting incompetence, the simple comeback to the answer is: So your saying your incompetent?
The White House line is that we don't spy on loyal Americans and we have every right to do so.
ReplyDeleteThis morning my hometown newspaper, a tweeter in the Republican noise machine, has an editorial claiming that yesterday "Senator Patrick Leahy of Vermont raised the ridiculous specter of 'Quakers being spied upon'." They publish this stuff in spite of the fact that googling on "NSA" and "Quaker" leads directly to NSA-furnished photocopies of surveillance reports on a Quaker-affiliated peace group in Baltimore.
It's not about the law goddamnit, it's about public opinion. And most Americans don't get it. Sorry, they don't. So play the game.
ReplyDeleteHere's what you do.
Democratic Senator: "Mr. AG, even though you don't have to, will you volunteer to testify under oath?"
AG: blah blah blah No.
Democrat Senator: "What do you have to hide?"
Game over. It's stupid, it makes no sense but it is EXACTLY how this American public sees this argument.
How can a sitting Senator sell out the Constitution in one breath for political gain and turn around and scream "9\11" and "Support the Troops" in another? Oath of Office be damned.
ReplyDeleteAll these bastards need to go and not nicely either. Tarred Feathered and run out on a rail, tonight, I'll bring the tar.
One of the most surprising admissions from Gonzales in the hearings yesterday was that they are not monitoring Al Qaeda calls within the U.S. Huh? Why not.
ReplyDeleteThat’s exactly what Spector said:
"I suspect there are some in America who are saying, 'Well, why aren't you? If you've got reason to believe that you've got two members of Al Qaeda talking to each other in America, by God, why aren't you listening to their conversations?' " the attorney general said. "Again, this was a judgment made that this was the right balance between the security of our country and protecting the private interests of Americans."
I'd like to hear the "Pajamaline" tool defend that on NPR today.
Exactly what is the "scandal" to which you are referring? Every senator of both parties have conceded that this program is necessary and does not violate the Constitution.
ReplyDeleteOnce you get past the grandstanding and political cheap shots about honesty, the entire hearing is boiling down to the committee begging the Administration to allow Congress to save face and amend FISA to cover the current program.
Thankfully, the WH is not taking the path of compromise here.
The courts have unanimously held that the President has the inherent and plenary constitutional authority to gather this kind of foreign intelligence. Furthermore, the FISA review court has noted that FISA would not limit this authority.
Why exactly would Mr. Bush voluntarily cede his own constitutional authority to Congress?
Remember, when Hindraker tells you that he wishes more liberals were in the WTC to reply that it would have been better if his and Bush's parents were there so they both would take the terrorist threat seriously rather than continual play it for political advantage.
ReplyDeleteI am confused on the opinions on this page.
ReplyDeleteWould it be acceptable if congress passed a law granting the president the legal status of inherent authority and the spying to continue? This way no law is violated.
Or to expand FISA to everything which would provide judicial review but would likely still mean domestic/international eavesdropping would continue?
Or would you like the inherent power and FISA dissolved because they all are against the 4th amendment?
I disagree completely, however, that the hearing was uneventful, as a HUGE thing happened that was totally unexpected: Gonzales revealed that the warrantless eavesdropping program that was leaked to the NYTimes about which everyone has been talking is only the tip of the iceberg, and there are other, domestic to domestic programs, no doubt FAR more invasive, that exist but about which he refused to comment.
ReplyDeleteI think you accurately describe what Gonzales said on this issue, but the only reason I didn't think that it was such surprising news was because -- as I and others have noted -- Gonzales and the DoJ have been continuously limiting their assurances that the Administration is eavesdropping only on people with an Al Qaeda connection to "the program described by the President."
That exact formulation appeared in numerous documents and interviews, so it was clear that it was intentional, and the most obvious meaning is that while the warrantless NSA program disclosed by the NYT may not include eavesdropping on anyone other than those with Al Qaeda links, other eavesdropping programs - i.e., those not "described by the President - are doing exactly that.
We won't know for certain what other types of eavesdropping are being conducted until the Intelligence Committee conducts its investigation (and maybe not even then, because much of it will be in closed session), but it certainly does appear highly likely that there are other eavesdropping programs being conducted outside the purview of the FISA court besides the program revealed by the NYT. It's just that this seemed highly likely to be the case before yesterday.
hypatia, thanks for disturbing us with Mr. McCarthy's twisted worldview. This is what all who believe in checks and balances and Constitutional government are up against. Quoting your McCarthy excerpt:
ReplyDeleteDiscontinue a program that provides an early warning system against what could be a devastating attack?
We already have an early warning system in place that the FIS court has no problem with; it's called FISA. Jeebus, these people can call me "moonbat" for the rest of their lives, if they will just stop lying about a law explicitly created to allow legal wiretapping.
And unfortunately, Mr. McCarthy's nullification of Marbury v. Madison is just following the lead of Mr. Bush's signing statement on the McCain Amendment, which made clear that the judicial branch can't make him follow the law he just signed.
Alas, anonymous right above perpetuates the false dichotomy:
Or to expand FISA to everything which would provide judicial review but would likely still mean domestic/international eavesdropping would continue?
FISA already covers domestic/international eavesdropping. It's already legal to wiretap US persons with a warrant. There's already a mechanism for judicial review; it's called a warrant from the FIS court. This is all dealt with in a law that explicitly covers the totality of such surveillance, passed by Congress, signed by President Carter, and never overturned by the Supreme Court. Now that this administration has been caught breaking it, and declaring that they will continue to break it, suddenly it's unconstitutional, and even though the law states that it shall be the exclusive mechanism for such surveillance, it doesn't really mean it.
The courts have unanimously held that the President has the inherent and plenary constitutional authority to gather this kind of foreign intelligence.
Give me one passage from one relevant case, decided post-FISA and referring to the state of law post-FISA. For that matter, point out the portions of Article II that trump Article I, Section 8.
Furthermore, the FISA review court has noted that FISA would not limit this authority.
So, if the President has unlimited authority to conduct domestic wiretaps on US persons without following the law that explicitly covers such wiretaps, what the hell is FISA or the FIS court (which gave no such opinion) for, bart? Just filling an unsightly shelf gap in the United States Code?
--mds
Did anyone else notice the careful phrasing Gonzales kept using yesterday?
ReplyDeleteHe qualified numerous answers by saying his remarks only related "to the program I am here to talk about today" or "the program the President has confirmed."
I was able to watch almost all of the hearings yesterday on C-Span, and I was struck by how many times I heard Gonzales say this. And he kept repeating these phrases verbatim, like maybe he could convince himself he wasn't lying, exactly, through the use of these qualifiers.
Certainly sounds to me like there are other programs out there and Gonzales was trying to keep his answers nice and narrow. Maybe it depends on the meaning of "confirmed."
Seriously, I see red flags.
No, instead, McCarthy is actually implying that the Court might rule against Bush, and that the court lacks the authority to do that. Here is McCarthy:
ReplyDeleteOn his radio show this AM, Bill Bennett said that is the spying case goes to the Supreme Court and the Court rules against Bush, Bush should ignore the Court.
Um, that IF
ReplyDeleteOne of the Anonymi says: I wish you luck in your cause, but I fail to see what you or any other blogger posting on this site has to offer the public in view of the terrible record of the Democratic party
ReplyDeleteI'll settle for 'not breaking the law'.
It's a start
Why are the committee Repubs being so timid? Maybe it's the sword of Damocles over their heads, aka Karl Rove's blacklist:
ReplyDeletehttp://www.insightmag.com/Media/MediaManager/Rove2.htm
For anyone interested in a semi-technical description of the surveillance data mining program behind all this, a dKos diary today is a must-read:
http://www.dailykos.com/story/2006/2/6/202558/0532
Guaranteed to scare your pants off.
So, now that I've had a chance to read other comments, I see I'm actually late on this discussion (on the artful phrasing used by Gonzales).
ReplyDeleteSorry to be duplicative. . . But I had not seen any other commentary on this, so I think it's interesting that even an "ordinary" person could pick up on it.
On his radio show this AM, Bill Bennett said that is the spying case goes to the Supreme Court and the Court rules against Bush, Bush should ignore the Court.
ReplyDeleteThe former "Drug Czar" and pontificator on virtue is authoritarian to his core. I'm not surprised that he, McCarthy, and others think such things; what does scare me is that they feel it is safe to publicly articulate these truly radical notions.
These people must be stopped, but I don't know how to overcome the constant invocation of the threat the terrorists pose. At this point, I can only hope that right-wingers like Barr, Fein and others get angry enough to demand an end to the madness. Sort of an "only Nixon could go to China" situation.
This memo from the Clinton administration needs to be discussed:
ReplyDeletehttp://www.usdoj.gov/olc/nonexcut.htm
PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE
UNCONSTITUTIONAL STATUTES
This memorandum discusses the President's constitutional authority to decline to execute unconstitutional statutes.
November 2, 1994
MEMORANDUM FOR THE HONORABLE ABNER J. MIKVA
COUNSEL TO THE PRESIDENT
I have reflected further on the difficult questions surrounding a President's decision to decline to execute statutory provisions that the President believes are unconstitutional, and I have a few thoughts to share with you. Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.
Anonymous said...
ReplyDeleteWe already have an early warning system in place that the FIS court has no problem with; it's called FISA....FISA already covers domestic/international eavesdropping. It's already legal to wiretap US persons with a warrant.
There is a rather large problem in gaining warrants for the data mining program leaked by the NYT. As I understand this program, the NSA monitors call coming from and going to telephone numbers discovered in captures al Qeada computers and documents on the assumption that these numbers may be al Qeada connected. However, an educated guess does not rise to probable cause to believe that the captured telephone number is actually al Qaeda in order to get a FISA warrant.
There's already a mechanism for judicial review; it's called a warrant from the FIS court.
Unless NSA actually violates the rights of an American citizen through this program and creates a case in controversy, the judiciary has no authority to review the executive's gathering of intelligence.
Courts may not issue "advisory opinions." There has to be a case in controversy. This is the reason why Specter's call for the FISA review court to look at this is puzzling. Congress has no standing to bring a case and can't ask for an advisory opinion.
Give me one passage from one relevant case, decided post-FISA and referring to the state of law post-FISA.
To start, this is irrelevant. The pre-FISA courts held that the President's authority derives from his plenary constitutional powers over foreign relations and as commander in chief.
Congress has no more authority to tell the President how to conduct foreign intelligence gathering by passing FISA than the President has to enact spending bills by executive order.
Recently, in In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002), the FISA review court stated: “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information...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.”
For that matter, point out the portions of Article II that trump Article I, Section 8.
Trump which provision of Article I, Section 8? Nothing in this section gives Congress power over foreign affairs apart from declaring war. The President's power to gather intelligence is not limited to time of war.
So, if the President has unlimited authority to conduct domestic wiretaps on US persons without following the law that explicitly covers such wiretaps, what the hell is FISA or the FIS court (which gave no such opinion) for, bart? Just filling an unsightly shelf gap in the United States Code?
The President does not have unlimited authority to conduct warrantless domestic wiretaps of US persons. However, he or she does have the authority to gather intelligence on foreign groups and their agents, whether native born or alien.
Congress has no more authority to tell the President how to conduct foreign intelligence gathering by passing FISA than the President has to enact spending bills by executive order.
ReplyDeleteOddly enough, bart, our system of checks and balances does not give the authority to declare laws unconstitutional to either you or the executive branch. The President is mandated to take care that the laws are faithfully executed. No exception in Article II for the ones he doesn't want to follow, and gets caught breaking. And the reason why I invoked Section 8 of Article I is precisely because the authority of Congress does not begin and end with declaring war. Congress also has the authority "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
The President does not have unlimited authority to conduct warrantless domestic wiretaps of US persons. However, he or she does have the authority to gather intelligence on foreign groups and their agents, whether native born or alien.
So if these agents are native born persons within the United States, he has unlimited authority to wiretap them. Thanks for, um, making that clear distinction.
And the references to Truong in In re Sealed Case cover foreign intelligence gathering. Otherwise, the FISC simply disbanded itself, because the President has the inherent authority to conduct warrantless wiretaps on US persons. As people less educated than you and Powerline put it:
Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA program falls within an exception to the warrant and probable cause requirement for reasonable searches that serve "special needs" above and beyond ordinary law enforcement. But the existence of "special needs" has never been found to permit warrantless wiretapping. "Special needs" generally excuse the warrant and individualized suspicion requirements only where those requirements are impracticable and the intrusion on privacy is minimal. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal intrusion on privacy, and the experience of FISA shows that foreign intelligence surveillance can be carried out through warrants based on individualized suspicion.
The court in Sealed Case upheld FISA itself, which requires warrants issued by Article III federal judges upon an individualized showing of probable cause that the subject is an "agent of a foreign power." The NSA domestic spying program, by contrast, includes none of these safeguards. It does not require individualized judicial approval, and it does not require a showing that the target is an "agent of a foreign power."
--On NSA Spying: a Letter to Congress (NY Review of Books 53:2)
William Sessions signed off on that analysis. But he's just a liberal al-Qaeda lover with no knowledge of the law or intelligence matters. Sheesh.
--mds
The President does not have unlimited authority to conduct warrantless domestic wiretaps of US persons. However, he or she does have the authority to gather intelligence on foreign groups and their agents, whether native born or alien.
ReplyDeleteThe question is not whether the President has authority to gather intelligence on foreign groups and their agents, but by what means he/she is allowed to do so. Torture? Warrantless fishing-expedition surveillance? Warrantless targeted surveillance where probable cause exists?
Bart your arguement boils down to "If George don't like the Law then George gets to ignore it."
ReplyDeleteAs Posted on DailyKos...
ReplyDeleteOn my second time calling in and speaking with Air America host Randi Rhodes, I had a chance to discuss a critical flaw in the Gonzales arguments defending the NSA program. Through all the various legal jousting, ducking and dodging - there is one issue on which Gonzales is completely, flatly wrong. It's an issue that sits like a lynchpin in their arguments, and once pulled causes the NSA program to collapse on itself like a house of cards.
That lynchpin is called Hamdi v Rumsfeld.
On Randi's show - I yanked on that lynchpin like lawnmower chain. All you need is two steps - two facts - and Gonzales goes down like a sack of potatoes.
...
Step One:
Under Hamdi the Supremes established that judicial review would be neccesary before the executive branch could override 18 USC 4001 and declare a U.S. Citizen as an enemy combatant.
Folks, this is simple - since you still need judicial review under Hamdi and the post 9-11 Authorization to Use Military Force, you still need judicial review for domestic signal intelligence and FISA is still applicable.
FISA is the Law, Stupid.
...
Step Two:
Article I Section 8 Paragraph 14 of the Constitution, which grants to the Congress the power...
"To make Rules for the Government and Regulation of the land and naval Forces;"
It may be true that foreign matters of state are the exclusive province of the executive, but this clause makes it clear that the Rules and Regulations regarding the armed forces - which would include FISA since the NSA are a part of the DoD - are under the province of Congress. For that matter so are the War Powers. Congress declares War, not the President. Congress establishes the rules of engagement for the armed forces, not the President. Congress has the option, during War, to suspend Habeas Corpus, not the President. Congress makes the laws and the President abides by them while executing his duties.
Urm...not this President.
One, Two - down for the Count.
http://www.dailykos.com/story/2006/2/7/115755/1163
Vyan
Anonymous said...
ReplyDeleteOddly enough, bart, our system of checks and balances does not give the authority to declare laws unconstitutional to either you or the executive branch. The President is mandated to take care that the laws are faithfully executed. No exception in Article II for the ones he doesn't want to follow, and gets caught breaking.
Two points here...
The courts have the final say as to whether a congressional statute is constitutional. While the courts have not ruled on FISA's constitutionality as applied to this particular NSA program, the prior precedent as to the President's constitutional authority indicates that FISA is not constitutional as it applies to this program.
However, let's say that the court had not ruled on the constitutionality of a particular statute. That does not mean that the President cannot make a judgement as to whether the statute is constitutional and whether to enforce it.
For example, let's say that Congress passed a statute making all registered Democrats the slaves owned by the local head of the Republican party. Obviously, the statute violates the 13th Amendment. Should the President enforce this statute until the Supreme Court rules on the issue in 2-3 years?
And the reason why I invoked Section 8 of Article I is precisely because the authority of Congress does not begin and end with declaring war. Congress also has the authority "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
Read that provision again. Congress may pass laws to execute its own enumerated powers. Since foreign affairs and command of the military are not among Congress' enumerated powers, they cannot constitutionally exercise such powers by passing laws in those areas.
The President does not have unlimited authority to conduct warrantless domestic wiretaps of US persons. However, he or she does have the authority to gather intelligence on foreign groups and their agents, whether native born or alien.
So if these agents are native born persons within the United States, he has unlimited authority to wiretap them.
Yes.
Otherwise, the FISC simply disbanded itself, because the President has the inherent authority to conduct warrantless wiretaps on US persons.
There is a very important distinction to make here. The case law which recognizes the power of the President to gather this kind of intelligence does not also say that evidence gathered this way can be introduced in a civilian criminal trial against this agent.
It is my understanding that the NSA data mining program is used to identify potential enemy agents and then the FBI seeks FISA warrants to put those agents under surveillance to gather criminal evidence.
FISA is a very useful tool for building criminal cases where you want to keep the warrants confidential. However, FISA and the 4th Amendment simply does not extend to normal foreign intelligence gathering.
The court in Sealed Case upheld FISA itself, which requires warrants issued by Article III federal judges upon an individualized showing of probable cause that the subject is an "agent of a foreign power." The NSA domestic spying program, by contrast, includes none of these safeguards. It does not require individualized judicial approval, and it does not require a showing that the target is an "agent of a foreign power."
--On NSA Spying: a Letter to Congress (NY Review of Books 53:2)
This is essentially correct and shows why FISA or the normal warrant process cannot be used in intelligence gathering.
The purpose of this NSA program is to gather evidence to identify probable enemy agents.
However, the warrant process requires this evidence before an warrant will issue.
As you can see, we get caught in a chicken and egg situation. In effect, applying the warrant process to this program will cripple it.
Great job on C-Span, Glenn. Keep it up.
ReplyDeleteBart:
ReplyDeletethe President's job is to enforce the laws, not to decide whether they are Constitutional or not. If he believes a given law is unconstitutional, he has the option of having the AG pursue the matter through the courts.
Your argument basically gives any President the license to ignore any law he chooses, as long as he "believes" that the law is unconstitutional. That makes about as much sense as having the Congress conduct wars, or the courts collect taxes.
What a liar.
ReplyDeleteThat you claim to be a registered Democrat is a bunch of horseshit. I've seen a few of you lately and there's nothing 'Democrat' about you. You're just out there trying to be a magnet for disaffected Democrats. There just aren't a whole lot of 'em right now. Better to try being a fake former Republican. Now THERE'S a support group!
I have to disagree Bart, my understanding is that is exactly what the 72 hour law is for.
ReplyDeleteAnd nevermind that if changes were necessary they could have been introduced, but instead we were told that FISA worked fine with some modification (modifications congress were happy to make, 4 times as I recall), until this new incident.
Hiding behind obfuscating wordage doesn't make it any less illegal either.
whispers said...
ReplyDeleteBart:
the President's job is to enforce the laws, not to decide whether they are Constitutional or not. If he believes a given law is unconstitutional, he has the option of having the AG pursue the matter through the courts.
Your argument basically gives any President the license to ignore any law he chooses, as long as he "believes" that the law is unconstitutional. That makes about as much sense as having the Congress conduct wars, or the courts collect taxes.
Until the courts rule, the President and Congress have to make the initial determination whether the other branch is acting unconstitutionally and abusing its authority.
Let's give a hypothetical where Congress is the decision maker.
The President had the FBI place surveillance cameras in the offices of all Democrat party officials without a court warrant.
Congress has every right to impeach the President for unconstitutional abuse of his executive power without waiting on the Supreme Court to rule on whether this program is unconstitutional.
Bart, are you saying that FISA judges can't be trusted? That seems to be your argument.
ReplyDeleteAnd please explain how having THREE WHOLE DAYS OF LEEWAY AFTER THE FACT before reporting a wiretapping is going to cripple our ability to nab terrorists.
In fact, performing the wholesale wiretapping of grandmas and Quakers is in fact hurting our ability to nab terrorists, by forcing the NSA to waste thousands upon thousands of man-hours on blanket surveillance that would have been more usefully spent doing other things.
When the WTC was attacked in 1993, Bill Clinton's Justice Department got the perps nabbed within weeks, and without violating FISA. Instead of taping our phone calls, Bush would do better to fire all his PNAC Platoon buddies, dump the PNAC-run Office of Special Plans, and pay attention to the CIA professionals who write things like the neglected August 2001 presidential briefing entitled "Bin Laden Determined To Attack US".
As I understand it, the authority of the Commander in Chief extends to the military forces of the United States. Despite what this administration may think, the Commander in Chief has no authority over civilians.
ReplyDeleteIf Bush wants to spy on me, he needs to rely on other powers of the Presidency. But, since the Constitution assigns the unenumerated powers to the people and the states, I don't see where he would have the right to spy on me unless he has my written permission.
For the time AWOl spends on vacation or out of town in Crawford, they can have Cheney signatore his directives instead.
ReplyDeleteSo Gonzales can parse that Bush's signed actions meet narrow requirement.
Since he continually mentions actions Bush signed he has brought into review all actions, signed or not.
The Fourth Amendment is against FISA in total for anyone on American soil. There is no caveat attached implying the rights of citizens. It is the rights of persons that shall not abridged without due process. The ninth amendment secures those rights to the people whether stated or reserved otherwise.
People are the final arbiters of their security and sovereignty(amendments II,IV,and IX).
-Mr.M
bart declares: "The President does not have unlimited authority to conduct warrantless domestic wiretaps of US persons. However, he or she does have the authority to gather intelligence on foreign groups and their agents, whether native born or alien."
ReplyDeletemds asks: "So if these agents are native born persons within the United States, he has unlimited authority to wiretap them."
bart responds: "Yes."
I ask bart: Given this analysis, who is to determine whether a native born person within the United States is a foreign agent or an innocent US person? The executive branch, right? And who is to provide oversight of the executive branch's determination? Other people in the executive branch, right? And so what is to stop the executive branch from wiretapping innocent politcal opponents, and simply declaring (to itself, of course) said political opponents to be foreign agents? Nothing, right?
We just have to hope that the President is a nice guy, who wouldn't do something untoward like wiretapping (under false pretenses) innocent citizens who just happen to be political opponents, right? We have to blindly trust the President? That's what your analysis comes down to, isn't it, bart?
Patrick Meighan
Venice, CA
<< Tomorrow at 2:10 p.m. EST, I'll be on NPR's To the Point to discuss the NSA hearings with Powerline's John Hinderaker. >>
ReplyDeletePreempted on Minnesota Public Radio by the King funeral
Wow, bart, that's some incredible ability to stop reading at a comma you've got there. Is it your superpower?
ReplyDeleteRead that provision again. Congress may pass laws to execute its own enumerated powers. Since foreign affairs and command of the military are not among Congress' enumerated powers, they cannot constitutionally exercise such powers by passing laws in those areas.
Let's continue with the section that you didn't place in bold:
"and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
Huh. Now why would you have stopped before that part, I wonder?
While the courts have not ruled on FISA's constitutionality as applied to this particular NSA program, the prior precedent as to the President's constitutional authority indicates that FISA is not constitutional as it applies to this program.
Since In re Sealed Case didn't actually support your argument, do you have any other citations to back up your "prior precedent" claim?
And if you think it would take 2-3 years for the Executive Branch to get a ruling from the Supreme Court on a law that directly contradicted the Constitution, I strongly suspect that the SCOTUS would grudgingly accept original jurisdiction (see, e.g., Wyoming v. Oklahoma). I guess we'll see, if Mr. Tancredo and his cohort push through a law that directly contradicts the Fourteenth Amendment, how long it takes to get it struck down. Assuming the Executive Branch displays similar concern for the constitutionality of federal laws that it isn't breaking, that is.
--mds
ReplyDeletePreempted on Minnesota Public Radio by the King funeral
And in Michigan, by a discussion with a Detroit imam about...you know what about.
If anyone finds any transcripts of Glenn/Fein/Hinderaker, please post. I can't get the live stream.
ReplyDeleteTo the point is starting right now at this link:
ReplyDeletehttp://kcrw.com/show/tp/?source=google
Glen should find a way for people who aren't bloggers and who don't have their own sites to post on this site using a chosen name, instead of everyone being called "anonymous." It's confusing.
ReplyDeleteAlso, the Dems have decided to go with two arguments: 1)it's not effective and fighting terrorism and 2) we would have authorized it if you'd asked.
I am not certain either is a winner. I think the voting public who cares most about this violation of our civil liberties are concerned with just that. Shouldn't have an outraged response concentrated on something else, as in "OK, you broke the law, established an imperial Presidency, and the REASON you did so was so that you could now operate outside of all the constraints that our country has relied on to protect its citizens since its inception, and the RESULT of what you did is to take the first step toward a total BIG BROTHER society instead of a constitutional democary.
If people are given a choice between what they perceive to be security vs.liberty, about half choose each. But if people are given a choice between BIG BROTHER and security, I would have to think almost everyone would not choose BIG BROTHER.
Also, let the legal arguments aside everyone. They don't matter. What was made clear is that whatever anyone argues or proves about the legal aspects of these questions, the administration's position is "we disagree." And they're in the driver's seat.
to the point also provides daily podcasts at KCRW and on itunes.
ReplyDeleteAnonymous said...
ReplyDeleteI have to disagree Bart, my understanding is that is exactly what the 72 hour law is for.
Think about this for a moment...
Under the 72 hour rule, within 72 hours after you start surveillance you have to develop the evidence, draft a warrant of several pages and then get the FISA court to rule on it all in just three days or you shut down the surveillance.
This is next to impossible to do.
Even if we had the 9/11 hijackers' cell phone number, they only called back overseas every few weeks.
However, the NSA data mining program is much more difficult that that. The computers are monitoring probably hundreds of numbers looking for key phrases. Even if the agent makes a call on the telephone, if he doesn't use one of the key phrases, the call is not intercepted.
If the recent WP article is correct, actually finding an al Qaeda agent through data mining of captured telephone numbers is like finding a needle in a stack of needles.
The AG claims that this monitoring often takes months to come up with something. Given the public information we have, this sounds very likely.
Fein: Bush appears to be breaking the law. If it's proven that he is, he should be impeached.
ReplyDeleteHinderaker: Bush is following the law, he has the authority, this is much ado about nothing, end of story.
Woman lawyer (apologies for not getting the name): Bush would appear to have the authority to do what he is doing based on a compelling need but after four years, that compelling need dissipates and at some point you have to go to congress and tell them we'd like to amend FISA.
Pollster (earlier in the show): The Democrats are having a heckuva time because they've got their base and the base is outraged but the folks who are not in their base don't mind having wiretaps without judicial review.
Isikoff (also earlier): Clearly, senators from both sides of the aisle--all Democrats and even some Republicans--are bothered both by Gonzalez' apparent disregard of FISA and perhaps even more so the obfuscating answers to what appear to be direct questions.
Anonymous said..
ReplyDelete.
bart declares: "The President does not have unlimited authority to conduct warrantless domestic wiretaps of US persons. However, he or she does have the authority to gather intelligence on foreign groups and their agents, whether native born or alien."
mds asks: "So if these agents are native born persons within the United States, he has unlimited authority to wiretap them."
bart responds: "Yes."
I ask bart: Given this analysis, who is to determine whether a native born person within the United States is a foreign agent or an innocent US person?
Good question.
It appears that this was the subject of intense debate at Justice, FISA and the NSA for the past couple years as the program was started, paused, tweaked and restarted.
They appear to be assuming that any number that is captured from al Qaeda is a potential agent, but they realize that many may not be.
The compromise they arrived at was to monitor these numbers and look only for key phrases and words which jihadis have used in the past or which describe likely high interest targets like the Brooklyn Bridge.
Only if one of these phrases pops up does the computer start monitoring the entire conversation on the telephone. It isn't like they have hundreds of agents listening to every word for months on end on these lines.
If the actual intercepted call appears to be innocent, they literally hang up.
On the other hand, if the call indicates that there is an agent on one end of the call, the appropriate agency starts an investigation and FISA is asked for warrants when necessary.
I don't see how you can do much more to ensure the privacy of an innocent party swept up in this system.
I would welcome your suggestions...
bart -
ReplyDeleteYou sound like Judge Alito in his confirmation hearings. And you have identified the exact question I wanted Alito to be forced to answer, but he managed to dodge it just enough, when Leahy and Feingold were closing in on it, but didn't/couldn't follow up with precision.
Namely: What DOES a President do, when a (previously-existing) U.S. law is "unConstitutional" in his opinion. [Noting that this must, in general, be a very rare occurrence, as a new law of that sort he would simply VETO, and likely it would stay vetoed.] Especially if, as you state, no Court can give advisory opinions, and someone who has standing must sue for an eventual Court ruling on the law somewhere down the line.
I know if I was President, unless enforcing the law in question would result in irreversible damage (execution of someone, for example), I would protest publicly, work with Congress, object in any way possible, while still technically upholding and carrying out the law until it was amended or ruled unConstitutional by the Judiciary. [Which, if a very bad law, would be that much quicker if it was in fact enforced, I imagine.] The VERY rare exceptions would require a violation of my oath of office for which I would have to be prepared to resign or be impeached, I would think (the stopping of an execution type of exceptions).
Therefore, I do not grant any President the "right" to be both the Executive and the Judiciary on a law that may be legally "debatable" [what law isn't with enough bad faith brought into play??] as the torture ban law, for example, and others affected by the Gonzales hairsplitting yesterday are now trying to be debated by those answering to George W. Bush.
It's gotten to the point, seemingly, where to justify the ends, clever political lawyers like Gonzales and Alito are analysing the composition of the INK used to pen the Constitution for "precision" before they will concur with the words that the ink formed... The President's oath to "faithfully execute" the laws by acknowledging, recognizing, and appreciating the Forest that makes up the component Trees of the various provisions of our Constitution and laws, is what is being purposely bypassed, worked around and ignored by the likes of Alberto Gonzales, in service to his political master Bush/Rove.
And Senator Lindsey Graham is the one who pointed to a glaring example of the "Forest" that Gonzales is pretending doesn't exist:
Congress passed and imposed the Uniform Code of Military Justice on the members of our Armed Forces (and the operation of the military is of course "executed" by civilians in the Executive Branch, in accordance with the law). That UCMJ is NOT "repealed," or inapplicable, or bypassed, in wartime... Quite the contrary -- it deals with critical wartime issues that are confronted in the heat of battle. Disobeying that UCMJ in wartime or peacetime results in courts martial of members of the Armed Services, and the potential for loss of liberty in jail if convicted. Square that with all the political rhetoric and spin Gonzales spewed yesterday, before you even begin to say that the FISA law can be (or must be) bypassed by the Executive in order to properly conduct the "Authorization For Use of Military Force Against Terrorism." [And I think knocienz in this thread makes an excellent point about the AUMF/FISA legal interpretations.]
We'd have the terrorists responsible for the attacks on our country rounded up and facing justice by now, if we'd spent a fraction of the cost of the Iraq Conflict on police work and enforcement, using INTERPOL, et al, and people of the caliber of Special Counsel Fitzgerald to do the work to prosecute them in our courts of law, in accordance with our supposed "ideals." But then, that isn't really the point or the objective of the games that the Bush/Cheney Administration are playing, is it?
Anonymous said...
ReplyDeleteLet's continue with the section that you didn't place in bold:
"and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
Huh. Now why would you have stopped before that part, I wonder?
Because its irrelevant. Do you have an argument to make concerning that latter clause which disproves my point?
Since In re Sealed Case didn't actually support your argument, do you have any other citations to back up your "prior precedent" claim?
How did In Re Sealed Case not support my argument?
In any case, here are three prior cases to which In Re Sealed Case is likely to be referring to: United
States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980); United States v. Butenko, 494 F.2d
593 (3d Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418 (5th Cir. 1973).
On many issues of law, there is conflicting precedent. However, on this issue, all of the rulings by the federal courts are the same.
MidnightRide said...
ReplyDeletebart -
You sound like Judge Alito in his confirmation hearings.
I am flattered. Justice Alito is a very sharp judge...
Namely: What DOES a President do, when a (previously-existing) U.S. law is "unConstitutional" in his opinion. [Noting that this must, in general, be a very rare occurrence, as a new law of that sort he would simply VETO, and likely it would stay vetoed.]
I agree that it is a pretty rare occurrence mostly because laws are debated thoroughly and often excessively in Congress. I also believe that Congress is generally made up of fairly reasonable people who have to face the voters on a regular basis. They can't go too far off the reservation...
However, when Congress does push past its constitutional limits, you can't depend on the President to necessarily veto an entire appropriations bill to stop one provision.
For example, I believe that the Boland Amendment of Iran Contra fame may very well have been an unconstitutional limit on the President's war making power. It was attached onto the defense spending bill which Reagan needed to pass, so he signed it.
I know if I was President, unless enforcing the law in question would result in irreversible damage (execution of someone, for example), I would protest publicly, work with Congress, object in any way possible, while still technically upholding and carrying out the law until it was amended or ruled unConstitutional by the Judiciary.
Presidents usually make these protests before the bill is enacted. We only seem to run into these problems on the rare occasion when the argument would compromise a secret operation like this NSA data mining program and the covert support for the Contras.
(Please let's not get diverted into Iran Contra, I am just using it as an example).
It's gotten to the point, seemingly, where to justify the ends, clever political lawyers like Gonzales and Alito are analysing the composition of the INK used to pen the Constitution for "precision" before they will concur with the words that the ink formed...
:::heh:::
I am an attorney who has both prosecuted and defended criminal cases. Parsing language is what we do for a living. This is price you pay if you want to be a government of laws and not men...
And Senator Lindsey Graham is the one who pointed to a glaring example of the "Forest" that Gonzales is pretending doesn't exist:
Congress passed and imposed the Uniform Code of Military Justice on the members of our Armed Forces (and the operation of the military is of course "executed" by civilians in the Executive Branch, in accordance with the law). That UCMJ is NOT "repealed," or inapplicable, or bypassed, in wartime... Quite the contrary -- it deals with critical wartime issues that are confronted in the heat of battle. Disobeying that UCMJ in wartime or peacetime results in courts martial of members of the Armed Services, and the potential for loss of liberty in jail if convicted. Square that with all the political rhetoric and spin Gonzales spewed yesterday, before you even begin to say that the FISA law can be (or must be) bypassed by the Executive in order to properly conduct the "Authorization For Use of Military Force Against Terrorism." [And I think knocienz in this thread makes an excellent point about the AUMF/FISA legal interpretations.]
With all due respect to Senator Graham, with whom I usually agree, UCMJ has to do with federal criminal law as it applies to soldiers, which is traditionally a legislative function.
Apart from the fact that UCMJ applies to soldiers, it has very little to do with the actual prosecution of a war. You will be hard pressed to find criminal justice addressed in any of the great treatises of military strategy. However, intelligence gathering is in all of them.
"Apart from the fact that UCMJ applies to soldiers, it has very little to do with the actual prosecution of a war."
ReplyDeleteI question this blanket statement, though I'm no expert on the UCMJ. To use just one example cited by Graham (with whom I usually disagree...) - an MP is not allowed to slap a prisoner's face. [Which Captain Fishback, for one, tried desperately to square with the open-ended torture-esque techniques which were/are being 'allowed' to be practiced on Iraqi prisoners by his and other units of our military in Iraq.] That has to do with at least the edges of the actual prosecution of a war, and I'm sure there are other, more pertinent examples that would mostly only be raised because of the actual conduct of a war. Note also the care that Gonzales took yesterday to point out that we are NOT in a declared War at this time. While also pointing out that an actual Declaration of War by the Congress brings our treaties and such into play -- something he apparently is concerned he couldn't find a way to wiggle around, however he "parsed" the language. I prefer language parsing in the service of clear, specific truth telling and open and honest communication, not in the service of truth obscuring. Here's hoping Alito ends up siding with the former, and not the latter, objective on the Supreme Court.
Also I would not say this debate about FISA is about military strategy, per se. It's about the fundamental balance of powers of which our government is composed. If this administration is unable to conduct their "Military Force" duties without violating the separation of powers, either they must be willing to suggest and work with Congress on legitimate amendments to existing law to help them conduct this "Military Force," or they must be reined in by impeachment if unwilling to recognize the line that they have apparently already crossed.
And just to restate, with more clarity:
The President's oath to "faithfully execute" the laws by acknowledging, recognizing, and appreciating the Forest that is made up of the component Trees of the various provisions of our Constitution and laws, is what is being purposely bypassed, worked around and ignored by the likes of Alberto Gonzales, in service to his political master Bush/Rove.
P.S. Don't know how common this is, but in this comment format, on my browser at least, italicized comments appear as "/* both when I type them, and when I read the comments posted by others. In other (haloscan) comment sites with that tag enabled, I see and can type italicized comments without any problem.
bart: "I don't see how you can do much more to ensure the privacy of an innocent party swept up in this system. I would welcome your suggestions..."
ReplyDeleteMy suggestion would be what we already have: secret courts, with judges appointed by the Chief Justice of the United States, with the authority to grant (or deny) the Executive Branch's request for a wiretapping warrant, based on whether or not there is probable cause to presume the wiretapping target to be a foreign agent.
If the only alternatives you can comprehend are either:
a) what we have (i.e., independent FISA courts), or:
b) an Executive Branch entrusted with unilateral, unfettered, unchecked power to declare any American citizen a foreign agent, and therefore eligible for unlimited wiretapping (which is precisely what you are offering)
...then yes, indeed, bart, I choose what we already have (or at least what I once thought we had): the rule of laws, not men.
Patrick Meighan
Venice, CA
Glen should find a way for people who aren't bloggers and who don't have their own sites to post on this site using a chosen name, instead of everyone being called "anonymous."
ReplyDeleteThere is a way. Just choose the "Other" radio button. This is how I post here all the time.
Anybody who can kick rightwing ass on TV is
ReplyDeletea jewel in the crown of our hope.
Bart says:
ReplyDeleteThe purpose of this NSA program is to gather evidence to identify probable enemy agents.
However, the warrant process requires this evidence before an warrant will issue.
As you can see, we get caught in a chicken and egg situation. In effect, applying the warrant process to this program will cripple it.
...
On the other hand, if the call indicates that there is an agent on one end of the call, the appropriate agency starts an investigation and FISA is asked for warrants when necessary.
I don't see how you can do much more to ensure the privacy of an innocent party swept up in this system.
I would welcome your suggestions...
When they couldn't wiretap, they couldn't get probable cause. When they didn't have probable cause, they couldn't wiretap.
When they wanted to spy, they had no evidence. When they had no evidence, they needed to spy.
When they wanted to do something illegal, they assumed it was in the Constitution. When they assumed it was in the Constitution, they couldn't be sure it was illegal. So they did it.
Catch-22 has nothing on you, bart.
You can't run a surveillance program that's illegally broad without undermining the privacy of innocents. We've all decided as a society that we need probable cause to deprive citizens of their rights, and we'll let murderers go free because the cops didn't obtain a proper warrant. We did that because we decided that the freedom of the innocent was more important than the restriction of the guilty.
You, on the other hand, are so concerned with ensuring that the program continues that you're willing to give one branch unchecked power to abuse civil rights on the strength of some incredibly tortured arguments about Constitutional avoidance and commander-in-chief powers. Even Specter called them illogical and ignoring the plain language of the FISA statute.
The president is not at war with the American people and he doesn't have the right to eavesdrop on them. Unless Bush has some fairy magicking away enacted statutes, he is constrained to obey FISA's exclusive template for domestic electronic surveillance, until the Supreme Court says otherwise.
If you want to explain where that fairy comes from, be my guest. But I DO NOT BELIEVE IN FAIRIES.
Clap louder!
MidnightRide said...
ReplyDelete"Apart from the fact that UCMJ applies to soldiers, it has very little to do with the actual prosecution of a war."
I question this blanket statement, though I'm no expert on the UCMJ. To use just one example cited by Graham (with whom I usually disagree...) - an MP is not allowed to slap a prisoner's face. [Which Captain Fishback, for one, tried desperately to square with the open-ended torture-esque techniques which were/are being 'allowed' to be practiced on Iraqi prisoners by his and other units of our military in Iraq.] That has to do with at least the edges of the actual prosecution of a war, and I'm sure there are other, more pertinent examples that would mostly only be raised because of the actual conduct of a war.
The comparison between slapping a prisoner and gathering electronic intelligence is pretty strained, don't you think?
If you really stretch the point, I assume you could argue that a statute prohibiting an MP from slapping a prisoner could be considered a regulation on intelligence collection. However, it can also be considered an enforcement of international torture conventions to which the President is subject.
Also I would not say this debate about FISA is about military strategy, per se. It's about the fundamental balance of powers of which our government is composed. If this administration is unable to conduct their "Military Force" duties without violating the separation of powers, either they must be willing to suggest and work with Congress on legitimate amendments to existing law to help them conduct this "Military Force," or they must be reined in by impeachment if unwilling to recognize the line that they have apparently already crossed.
Actually, this is a classic separation of powers case. The constitution authorizes each branch to exercise plenary or complete power over different functions of government.
For example, only congress can enact spending bills, only the courts can perform judicial review of laws and only the President conducts foreign affairs and commands the military.
As I posted before, Congress can no more legislate the conduct of foreign affairs than the President can sign executive orders to enact spending bills.
Anonymous said...
ReplyDeletebart: "I don't see how you can do much more to ensure the privacy of an innocent party swept up in this system. I would welcome your suggestions..."
My suggestion would be what we already have: secret courts, with judges appointed by the Chief Justice of the United States, with the authority to grant (or deny) the Executive Branch's request for a wiretapping warrant, based on whether or not there is probable cause to presume the wiretapping target to be a foreign agent.
I explained why enforcement of FISA would essentially end the NSA data mining program.
Presuming that you agree with every Democrat leader that the NSA program is vital and should continue, how would you suggest that the current privacy protections in the program be improved.
Unless you have allow retroactive warrants after several months of surveillance until NSA got a hit, using the FISA warrant process would not work. In that case, what is the use of the warrant process?
Dan Lewis said...
ReplyDeleteCatch-22 has nothing on you, bart.
You can't run a surveillance program that's illegally broad without undermining the privacy of innocents. We've all decided as a society that we need probable cause to deprive citizens of their rights, and we'll let murderers go free because the cops didn't obtain a proper warrant. We did that because we decided that the freedom of the innocent was more important than the restriction of the guilty.
When did "society" make this decision?
The government has been conducting warrantless intelligence gathering on foreign groups and their agents since the birth of the Republic.
The Courts have recognized this and universally held that the 4th Amendment doesn't apply to foreign intelligence gathering.
The Constitution is not amended by changes in popular belief. However, if you held a vote right now on the issue, warrantless intelligence gathering would win by about 2-1.
Even Specter called them illogical and ignoring the plain language of the FISA statute.
Actually, what most of the press reports neglected (intentionally) failed to include with those reports is that Senator Specter also acknowledged that FISA may be unconstitutional when applied to this program.
Unless Bush has some fairy magicking away enacted statutes, he is constrained to obey FISA's exclusive template for domestic electronic surveillance, until the Supreme Court says otherwise.
Actually, the Supremes have allowed the law on this issue to be set by the federal courts of appeal by denying review on appeal of these cases.
bart: "I explained why enforcement of FISA would essentially end the NSA data mining program. Presuming that you agree with every Democrat leader that the NSA program is vital and should continue, how would you suggest that the current privacy protections in the program be improved."
ReplyDeleteI don't agree with "every Democrat leader" that the NSA data mining program (at least as you describe it) is vital and should continue. I especially don't agree that the program is vital and should continue if it necessarily grants the Executive Branch unilateral, unfettered, unchecked power to declare any American citizen a foreign agent, and therefore eligible for unlimited, unsupervised wiretapping.
If the price I someday pay for that is a violent death from a terrorist's bomb, well, all I can say is that I'd rather die in a democratic republic than live in a totalitarian police state.
"The comparison between slapping a prisoner and gathering electronic intelligence is pretty strained, don't you think?"
ReplyDeleteIf we are making the comparison in order to reinforce the point that Congress DOES have, and has had, full power to "regulate" and legislate certain "foreign-affairs-related" conduct in wartime of those in the Executive Branch, no, I don't think this comparison is pretty strained at all. I think it goes straight to the point. This is one argument for why FISA, like the UCMJ, is fully Constitutional.
The Constitution gives Congress that power over certain specific foreign-affairs-related conduct of the Executive Branch, as evidenced by the longstanding UCMJ, and by rules of conduct on the battlefield toward enemy prisoners of war, etc. And if one is being fully faithful to the intent of the Nation's Founders, with regard to their abhorence of king-like powers in the Executive, one would recognize this restraining "leash" on the Executive as being fully in-line with the Founders' "construct" of the Constitution. Without any need to "trample" on the full and necessary powers of the President when he is acting as Commander in Chief of our military and its fighting strategy in wartime.
And unless and until we (or the full pertinent Congressional committees) know the true extent and operational details of the NSA eavesdropping, it's pretty difficult to discuss its pros and cons. But with $40 billion dollars spent on federal black-op intelligence budgets annually in this country, who knows what they are up to. One thing I doubt, though, is that they have their hands on very many "Al Qaeda laptops." If they did, they'd have their hands on "Al Qaeda" members themselves, which seems to be the exception, not the rule, for this administration.
This comment has been removed by a blog administrator.
ReplyDeleteMidnightRide said...
ReplyDelete"The comparison between slapping a prisoner and gathering electronic intelligence is pretty strained, don't you think?"
If we are making the comparison in order to reinforce the point that Congress DOES have, and has had, full power to "regulate" and legislate certain "foreign-affairs-related" conduct in wartime of those in the Executive Branch, no, I don't think this comparison is pretty strained at all. I think it goes straight to the point.
OK, let's explore this idea...
Some academics have recognized that the President may have inherent authority over what Justice is calling "the means and methods of engaging the enemy." However, they argue that Congress may trump that implied executive authority by enacting legislation like FISA pursuant to the Necessary and Proper Clause of the Constitution. Art. 1, Section 19.
Given that the necessary and proper clause does not refer to any particular enumerated power of the executive, if we take this argument to its logical conclusion, there is no activity of the executive which Congress could not outlaw or limit.
For example, If Congress got tired of the executive vetoing its legislation, it could pass other legislation abolishing the Veto.
Under this theory, let's see how the approach Congress took in enacting FISA could be applied to other foreign affairs and military command powers of the presidency.
Congress could enact a statute requiring the executive to provide probable cause to show that a military bombing plan would be successful and obtain a warrant from a judge before being permitted to implement that plan.
Congress could enact a statue requiring that the President get court approval plans to ship supplies to the troops.
Congress could enact a statute requiring the military to get court approval for promote and demote troops.
Exactly what are the limits of Congress' powers under this theory of the "necessary and proper clause?"
Once you cross the Rubicon and argue that the Necessary and Proper clause is not limited to Congress' enumerated powers and instead can be used to limit or eliminate some of the President's enumerated powers, there is no practical limit to Congress' authority. The President can be reduced to a figurehead...
The alternative is to read the Constitution as it was written. Each branch exercises its own enumerated powers - no more, no less.
Pertinent Excerpts from the Constitution:
ReplyDelete"Article I. - The Legislative Branch
Section 8 - Powers of Congress
...
[Clause 11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
[Clause 14] To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
...
[Your "Necessary and Proper Clause" (Article I, Section 8, Clause 18)]:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
"Article II. - The Executive Branch
...
Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint..."
___________________________________
I'd say that Article I, Section 8, Clause 18 is a pretty powerful statement any way you slice it. HOWEVER: it is referencing, based on, and about MAKING LAW.
It is not about removing powers provided elsewhere in the Constitution to the Executive and to the Judiciary. Nor is it about removing power from the Legislature. [Though I'm not so sure that a peacetime "figurehead" President isn't closer to what the Founders had in mind, than the CEO-wannabe version we have today.]
Be that as it may, I don't believe there's any need to go outside the boundaries of Article I, Section 8, Clauses 11 and 14 (bolded above) to provide authorization for FISA, reading the Constitution as it is written.
Old me:
ReplyDeleteCatch-22 has nothing on you, bart.
You can't run a surveillance program that's illegally broad without undermining the privacy of innocents. We've all decided as a society that we need probable cause to deprive citizens of their rights, and we'll let murderers go free because the cops didn't obtain a proper warrant. We did that because we decided that the freedom of the innocent was more important than the restriction of the guilty.
bart:
When did "society" make this decision?
When the people wrote the 4th Amendment. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
bart, for a lawyer, you need some reading comprehension. I said that we have held that probable cause is the necessary standard to violate the rights of citizens. Here's hoping your next argument is more responsive.
You also haven't said much about how to interpret the Articles given that they've been amended by the Bill of Rights. Please explain how Commander-in-chief powers amended by the 4th Amendment allow the President to perform searches and seizures without probable cause.
Dan Lewis said...
ReplyDeleteOld me:
Catch-22 has nothing on you, bart.
You can't run a surveillance program that's illegally broad without undermining the privacy of innocents. We've all decided as a society that we need probable cause to deprive citizens of their rights, and we'll let murderers go free because the cops didn't obtain a proper warrant. We did that because we decided that the freedom of the innocent was more important than the restriction of the guilty.
bart:
When did "society" make this decision?
When the people wrote the 4th Amendment. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
bart, for a lawyer, you need some reading comprehension. I said that we have held that probable cause is the necessary standard to violate the rights of citizens. Here's hoping your next argument is more responsive.
You are missing the operative language in the 4th Amendment, which I have bolded above. You only need a warrant under the 4th Amendment to conduct unreasonable searches. There are many types of searches which the courts have found to be reasonable and do not require a warrant.
The federal courts of appeal I have cited above have universally held that the 4th Amendment warrant requirement does not apply to searches of foreign governments and their agents in the United States because these searches are reasonable.
The 4th Amendment is not at issue here. The only issue is whether Congress has the power to limit or eliminate the President's enumerated powers under the Constitution.
You also haven't said much about how to interpret the Articles given that they've been amended by the Bill of Rights. Please explain how Commander-in-chief powers amended by the 4th Amendment allow the President to perform searches and seizures without probable cause.
The original ten amendments did not amend the body of the Constitution because they do not conflict and they were ratified by the states at the same time. Later amendments like the 14th have been construed as changing the original document.
MidnightRide said...
ReplyDeletePertinent Excerpts from the Constitution:
"Article I. - The Legislative Branch
Section 8 - Powers of Congress
...
[Clause 11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
[Clause 14] To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
...
[Your "Necessary and Proper Clause" (Article I, Section 8, Clause 18)]:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."
You have listed all of the pertinent enumerated powers of Congress which apply to the military or foreign affairs followed by the necessary and proper clause which enables Congress to enact legislation to exercise those enumerated powers.
BTW, as to our discussion of Congress' enactment of the UCMJ, that legislation was enacted pursuant to its enumerated power to regulate the conduct of the armed forces.
I'd say that Article I, Section 8, Clause 18 is a pretty powerful statement any way you slice it. HOWEVER: it is referencing, based on, and about MAKING LAW. It is not about removing powers provided elsewhere in the Constitution to the Executive and to the Judiciary.
I agree.
Be that as it may, I don't believe there's any need to go outside the boundaries of Article I, Section 8, Clauses 11 and 14 (bolded above) to provide authorization for FISA, reading the Constitution as it is written.
You can't have it both ways.
The Constitution names the President, not Congress, as Commander in Chief.
Collecting intelligence has always been held to be part of the duties of the CiC.
Nothing in Article I states or implies that this is an enumerated power of Congress.
If we agree that Congress does not have the power to limit or eliminate the President's enumerated powers, then FISA cannot limit or eliminate the President's enumerated power as CiC to collect foreign intelligence on the nation's enemies.
I take it, bart, that you consider the President to be acting as "Commander in Chief" at all times, whether we are at war, or whether we are at "peace."
ReplyDeleteI consider the President's role to be that of fulfilling a "duty" under the Constitution, or as his oath of office says, of faithfully executing the laws as enacted. And yes, he has a role to play in enacting those laws. Beyond that, his Commander in Chief duties come into play in the event that Congress declares and funds War. And if we in the meantime have an "active enemy" somewhere in the world, the Department of Defense and its NSA under his command are there to monitor such external threats -- thus the FISA law comes into play.
We do seem to be a country today that is in need of, and engaging in, "perpetual war" regardless of the size and seriousness, or reality, of any external threat [as a legacy of WWII and the subsequent Cold War]. Which of course conveniently plays into the hands of those who promote a non-stop "Commander in Chief" role for the President, overlooking the now-gigantic military apparatus under him which is actually engaged in the day to day operation of a peacetime military, the operation of which he is largely disengaged from when no (real) state of war exists. [Which I understand would not be the case at present.]
I think the following excerpt from the courageous speech made Tuesday on the Senate floor by Senator Russ Feingold probably reinforces my contention [that Congress has the power to pass laws like FISA that define how the President shall conduct certain aspects of War under his CiC powers, without negating his CiC powers under the Constitution] better than I can:
"...A recent letter from a group of law professors and former executive branch officials points out that “every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute.” The Senate reports issued when FISA was enacted confirm the understanding that FISA overrode any pre-existing inherent authority of the President. As the 1978 Senate Judiciary Committee report stated, FISA “recognizes no inherent power of the president in this area.” And “Congress has declared that this statute, not any claimed presidential power, controls.” Contrary to what the President told the country in the State of the Union, no court has ever approved warrantless surveillance in violation of FISA.
The President’s claims of inherent executive authority, and his assertions that the courts have approved this type of activity, are baseless..."
MidnightRide said...
ReplyDeleteI take it, bart, that you consider the President to be acting as "Commander in Chief" at all times, whether we are at war, or whether we are at "peace."
Of course. It is probably more vital to gain intelligence on the enemy and then prepare our defenses before a conflict starts and the enemy can land the first blow...
"...A recent letter from a group of law professors and former executive branch officials points out that “every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute.”
Here is the link to the letter drafted by these law professors to which Feingold was referring.
> http://balkin.blogspot.com/FISA.AUMF.ReplytoDOJ.pdf
This is the argument about unlimited Congressional power under the Necessary and Proper Clause to which I referred last night.
Interesting argument. However, I think it fails for the reasons I cited last night.
the President's enumerated power as CiC to collect foreign intelligence on the nation's enemies.
ReplyDeleteSo Congress lacks an enumerated power to regulate the armed forces or government agencies, even though they are explicitly granted such a power in the text of Article I, yet the President has an enumerated power to collect foreign intelligence without oversight that is to be found nowhere in Article II? Man, you'd better return that dictionary; the definition for "enumerated" is defective.
Oh, and the President is not Commander in Chief of the United States, whatever you or DoJ royalists think.
--mds
Have fun stomping Assrocket...
ReplyDeleteThe truly frightening thing about the Bush administration's defense is how it resembles religious dogma. They're putting forth the "executive authority" argument as an article of faith, as there is no rational justification to be found in the constitution. And to reinforce their authority, they're simply replacing the threat of eternal damnation with the threat of terrorist attack. If it wasn't obvious before, it certainly is now: they're trying to create a Cult of the Executive.
ReplyDeleteI’ve been reading all the comments made by and to whoever Bart is, and I think it’s important that the regulars on this blog recognize that he is a troll and that it is pointless to argue with him. These kind of people want you to waste all your energy arguing with them and you will go around in circles and never accomplish squat. I'm not a lawyer, but I'm sure there are countless legal arguments that the defenders of the Imperial President will make, however, I choose not to waste my time and energy on them because it is my opinion he broke the law and is playing CYA. I do respect Glenn Greenwald and have learned so much about the U.S. Constitution on this site for which I am extremely grateful. Glenn has a way of laying things out so that they are concise and understandable, and I admire his efforts to educate those of us less informed. I do not want the President of the United States to take on the powers of a dictator or a monarch. Of course I want members of Al Quaida identified and apprehended, but this program does not seem to be accomplishing much in that direction.
ReplyDeleteI believe the entire warrant less wiretapping situation has forced a Constitutional crisis in this country, and that we have reached a tipping point.
I am the 40-ish mother of five grown children, who made a career in the computer networking industry and even though I have nothing to hide, I am outraged and creeped out to think that a government agent may have listened to my phone calls or intercepted e-mails to a friend/former coworker of mine who returned to India after the tech bubble burst. In fact, my friend had a sister who worked for Morgan Stanley and was frantic on 9/11 when he couldn’t reach her – she was late for work that day and would otherwise have been in one of the towers when they went down. Another of my coworkers was on Flight 93 that went down in Pennsylvania which affected me deeply.
Most of the world was behind our President after that terrible day, and we all want to catch the people who murdered innocent Americans. I was laid off my job several months after that infamous day. I was hired by the Transportation Security Administration where I quickly learned that all the equipment and uniforms were for show. TSA still doesn’t have a clue what they are doing, and I quit in disgust after almost a year of service because they were telling us to confiscate rubbing alcohol and knitting needles from elderly women. I didn’t see how this was going to help apprehend any criminals.
But the events leading up to the slide in this president’s credibility were inexorable - there were the distortions and half-truths that led up to the bombing of Iraq - a nation that did not attack us, and was not a threat. How many Americans soldiers and innocent Iraqi citizens have died, and will die? Why didn’t we keep looking for Bin Laden instead of turning our attention to Saddam Hussein? Why is democracy in Iraq suddenly more important than democracy here? How many trillions of dollars is this going to end up costing us? And Bush has not attended a single funeral for any U.S. soldier.
Then there was the outing of a CIA operative to silence a critic of the Bush administration – on top of years of whispered smear campaigns that destroyed other Bush critics and opponents. An agent’s career was ruined and we may never know how much damage was done to the counter proliferation division, since that information is classified and sensitive -for the purpose of silencing Joe Wilson?
Next I was sickened by the photos from the Abu Garib scandal, and eventually the Bush administration was exposed as encouraging this kind of sick, inhumane, treatment of prisoners when Bush added his signing statement to the McCain ban on torture which shows a disturbig attitude about laws passed by Congress.
I’ve read about the corruption in this administration everyday in the newspapers – first Delay, Safavian, Cunningham and now Abramoff. I’ve seen how they use smear tactics to attack their critics like Jack Murtha instead of addressing the real problems that face our country. And then there was Katrina, when our federal government failed to come to the aid of the poorest of the poor in New Orleans, and so many people died needlessly. Today we hear that none of the aid Bush promised has been forthcoming, and the Gulf Coast is not being rebuilt. The poorest of the poor have been left with nothing, and must not try to put their lives back together without the help that was expected from FEMA.
Now we’ve got the Medicare crisis, where the most vulnerable among us are suffering because they can’t pay for their medications and don’t know where to turn. I have no doubt that there may be some deaths because of this mess, even though at least 20 states have granted emergency funds to ensure that their elderly and sick get their medications.
And let’s not forget the budget proposal just out this week where Bush says to poor and middle class Americans “Screw you!” while he rewards his friends and campaign contributors with the equivalent of corporate welfare.
Those are the mistakes we know about, how many more things are being covered up? And now there is the warrant less surveillance program, and we have a president who says he is above the law.
One of the earlier posts mentioned the 14 Defining Characteristics Of Fascism, which I’ve reposted below. I think this would be the most effective campaign to educate the public, by showing Hitler or Mussolini and how closely the actions of Bush and his cronies follow these guidelines, which are scary, because they are so close to what we are witnessing in our beloved country right now:
14 Points of fascism
In his original article, "Fascism Anyone?", Laurence Britt (interview) compared the regimes of Hitler, Mussolini, Franco, Suharto, and Pinochet and identified 14 characteristics common to those fascist regimes.
14 Points of fascism
In his original article, "Fascism Anyone?", Laurence Britt (interview) compared the regimes of Hitler, Mussolini, Franco, Suharto, and Pinochet and identified 14 characteristics common to those fascist regimes. This page is a collection of news articles dating from the start of the Bush presidency divided into topics relating to each of the 14 points of fascism. Further analysis of American Fascism done by the POAC can be read here.
1.) Powerful and Continuing Nationalism: Fascist regimes tend to make constant use of patriotic mottos, slogans, symbols, songs, and other paraphernalia. Flags are seen everywhere, as are flag symbols on clothing and in public displays.
and let's not forget the failed "Bring 'em on!"
Headstones of soldiers killed in Iraq and Afghanistan are inscribed with the Pentagons war-marketing slogans
September 11 = Party time with country superstar Clint Black! Bring your coolers and sparklers! All lovingly sponsored by the Department of Defense, Lockheed Martin, and Subway restaurant
2.) Disdain for the Recognition of Human Rights: Because of fear of enemies and the need for security, the people in fascist regimes are persuaded that human rights can be ignored in certain cases because of "need." The people tend to look the other way or even approve of torture, summary executions, assassinations, long incarcerations of prisoners, etc.
Bush threatens to veto $442b defense bill if Congress investigates detainee abuses.
Guantanamo Judge: “I don’t care about international law. I don’t want to hear the words ‘international law’ again. We are not concerned with international law.”
Rumsfeld to approve new guidelines that will formalize the administration's policy of imprisoning without the protections of the Geneva Conventions and enable the Pentagon to legally hold "ghost detainees,"
US 'preparing to detain terror suspects for life without trial'
U.S. o.k. evidence gained through torture
July 1, 2003: U.S. Suspends Military Aid to Nearly 50 Countries: because they have supported the International Criminal Court and failed to exempt Americans from possible prosecution.
US has at least 9000 prisoners in secret detention
3.) Identification of Enemies/Scapegoats as a Unifying Cause: The people are rallied into a unifying patriotic frenzy over the need to eliminate a perceived common threat or foe: racial, ethnic or religious minorities; liberals; communists; socialists, terrorists, etc.
Congressman: Muslims 'enemy amongst us'
SB 24, Ohio law to muzzle "liberals"
World history textbook used by seventh-graders at Scottsdale’s Mohave Middle School was pulled from classrooms mid-semester amid growing right criticism of the book’s unbiased portrayal of Islam
Rallies planned against 'Islamofacism': Event to 'unify all Americans behind common goal'
4.) Supremacy of the Military: Even when there are widespread domestic problems, the military is given a disproportionate amount of government funding, and the domestic agenda is neglected. Soldiers and military service are glamorized.
Bush’s Domestic Program Hit List.
Bush slashes domestic programs, boosts defense. Arlen Spector calls it "scandalous". Funding for job training, rural health care, low-income schools and help for people lacking health insurance would face big cuts under a bill passed Friday by the House. Pentagon to spend 75 billion for three new brigades.
5.) Rampant Sexism: The governments of fascist nations tend to be almost exclusively male-dominated. Under fascist regimes, traditional gender roles are made more rigid. Opposition to abortion is high, as is homophobia and anti-gay legislation and national policy.
It's legal again, to fire gov't workers for being gay. Bush calls for Constitutional ban on same-sex marriages. Bush refuses to sign U.N proposal on women's "sexual" rights. W. David Hager chairman of the FDA's Reproductive Health Drugs Advisory Committee does not prescribe contraceptives for single women, does not do abortions, will not prescribe RU-486 and will not insert IUDs.
6.) Controlled Mass Media: Sometimes the media is directly controlled by the government, but in other cases, the media is indirectly controlled by government regulation, or sympathetic media spokespeople and executives. Censorship, especially in war time, is very common.
Report shows U.S. government has been engaged in illegal propaganda aimed at its own citizens and the story gets only 41 mentions in the media. Free Press details recent governmental propaganda efforts, from faux-correspondent Jeff Gannon to paid-off pundit Armstrong Williams, and from the demise of FOIA to video news releases passed off as news.
7.) Obsession with National Security: Fear is used as a motivational tool by the government over the masses
Bush Aides ADMIT 'stoking fear' for political gain: Bush adviser said the president hopes to change the dynamics of the race. The strategy is aimed at stoking public fears about terrorism, raising new concerns about Kerry's ability to protect Americans and reinforcing Bush's image as the steady anti-terrorism candidate, aides said. The Bush administration periodically put the USA on high alert for terrorist attacks even though then-Homeland Security chief Tom Ridge argued there was only flimsy evidence to justify raising the threat level. Cheney warns that if Kerry is elected, the USA will suffer a "devastating attack"
Rove: GOP to Use Terror As Campaign Issue in 2006
8.) Religion and Government are Intertwined: Governments in fascist nations tend to use the most common religion in the nation as a tool to manipulate public opinion. Religious rhetoric and terminology is common from government leaders, even when the major tenets of the religion are diametrically opposed to the government's policies or actions.
Jerry Falwell cleared of charges that he broke federal election law by urging followers to vote for Bush. NC congressman proposes law making it ok to preach politics from the pulpit. Texas Governor Mobilizes Evangelicals. Family research council: Justice Sunday
Thou shalt be like Bush: What makes this recently established, right-wing Christian college unique are the increasingly close - critics say alarmingly close - links it has with the Bush administration and the Republican establishment. Park Service Continues to Push Creationist Theory at Grand Canyon and other nat'l parks
9.) Corporate Power is Protected: The industrial and business aristocracy of a fascist nation often are the ones who put the government leaders into power, creating a mutually beneficial business/government relationship and power elite.
The K Street Project is a project by the Republican party to pressure Washington lobbying firms to hire Republicans in top positions, and to reward loyal GOP lobbyists with access to influential officials. It was launched in 1995, by Republican strategist Grover Norquist and House majority leader Tom DeLay.
American Conservative Magazine: One U.S. contractor received $2 million in a duffel bag... and a U.S. official was given $7 million in cash in the waning days of the CPA and told to spend it “before the Iraqis take over.” There are 6 Congressional Committees investigating the Oil-for-Food (UN) scandal, yet not a single Republican Committee Chairman will call a hearing to investigate the whereabouts of 9 billion dollars missing in Iraq. Bush money network rooted in Florida, Texas: Since Mr. Bush took office in 2001, the federal government has awarded more than $3 billion in contracts to the President's elite 2004 Texas fund-raisers, their businesses, and lobbying clients
10.) Labor Power is Suppressed: Because the organizing power of labor is the only real threat to a fascist government, labor unions are either eliminated entirely, or are severely suppressed.
Labor Department warns unions against using their money politically. President Bush Attacks Organized Labor: Bush attacked organized labor Saturday, issuing orders effectively reducing how much money unions can spend for political activities and opening up government contracts to non-union bidding. March 2001: President Bush signed his name to four executive orders on organized labor last month, including one that cuts the money unions will have for political campaign spending. Congress and the Department of Labor are trying to change the rules on overtime pay, eliminating the 40 hour work week, taking eligibility for overtime pay away from millions of workers, and replacing time and a half pay with comp days.
11.) Disdain for Intellectuals and the Arts: Fascist nations tend to promote and tolerate open hostility to higher education, and academia. It is not uncommon for professors and other academics to be censored or even arrested. Free expression in the arts is openly attacked, and governments often refuse to fund the arts. Bush's new economic plan cuts funding for arts, education. Artists from all over the world are being refused entry to the US on security grounds. A group of more than 60 top U.S. scientists, including 20 Nobel laureates and several science advisers to past Republican presidents, on Wednesday accused the Bush administration of manipulating and censoring science for political purposes. Freedom of Repression: New ruling will allow censorship of campus publications
12.) Obsession with Crime and Punishment: Under fascist regimes, the police are given almost limitless power to enforce laws. The people are often willing to overlook police abuses and even forego civil liberties in the name of patriotism. There is often a national police force with virtually unlimited power in fascist nations
It's here: "There is hereby created and established a permanent police force, to be known as the 'United States Secret Service Uniformed Division.'"
America: secret jails, secret courts, secret arrests, and now secret laws. Snitch-or-Go-to-Jail bill will make pretty much anything short of reporting on everyone you see for doing just about anything a jailable offense. With minimum sentences, up to and including life without parole.
The problem with Gonzales is that he has been deeply involved in developing some of the most sweeping claims of near-dictatorial presidential power in our nation's history, allowing him to imprison and even (at least in theory) torture anyone in the world, at any time. Police officers don't have to give a reason at the time they arrest someone, the U.S. Supreme Court said in a ruling that shields officers from false-arrest lawsuits.
13.) Rampant Cronyism and Corruption: Fascist regimes almost always are governed by groups of friends and associates who appoint each other to government positions and use governmental power and authority to protect their friends from accountability. It is not uncommon in fascist regimes for national resources and even treasures to be appropriated or even outright stolen by government leaders.
Bush Cronyism: Foxes Guarding the henhouse. Making Sense of the Abramoff Scandal. If Bush's pick is confirmed, that will mean the five top appointees at Justice have zero prosecutorial experience among them. Iran-Contra Felons Get Good Jobs from Bush. Big Iraq Reconstruction Contracts Went To Big Donors. Bush Wars -- Crooks Get Contracts : The main companies that were awarded billions of dollars worth of contracts in Iraq have paid more than $300 million in fines since 2000, to resolve allegations of fraud, bid rigging, delivery of faulty military equipment, and environmental damage. US Coalition Provisional Authority (CPA) lost track of $9 billion. "Contracting in the aftermath of the hurricanes has been marked by waste, corruption and cronyism".
14. Fraudulent Elections: Sometimes elections in fascist nations are a complete sham. Other times elections are manipulated by smear campaigns against or even assassination of opposition candidates, use of legislation to control voting numbers or political district boundaries, and manipulation of the media. Fascist nations also typically use their judiciaries to manipulate or control elections.
Powerful Government Accounting Office report confirms key 2004 stolen election findings
Conyers hearing in which Clinton Curtis testifies that he was hired to create hackable voting machines. The Republican Party has quietly paid hundreds of thousands of dollars to provide private defense lawyers for a former Bush campaign official charged with conspiring to keep Democrats from voting in New Hampshire. No explanation for the machines in Mahoning County that recorded Kerry votes for Bush, the improper purging in Cuyahoga County, the lock down in Warren County, the 99% voter turnout in Miami County, the machine tampering in Hocking County. Less access than Kazakhstan. Fewer fail-safes than Venezuela. Not as simple Republic of Georgia. The 2004 Elections according to international observers.