For those expecting the first day of the NSA hearings to be the culmination of this scandal or to produce made-for-TV smoking guns, Monday was anti-climactic. Alberto Gonzales diligently displayed his principal, defining attribute – a willingness to advocate each and every pro-Bush defense with a degree of blind loyalty that is staggering and, even for Washington, truly rare in its slavish purity. The Justice Department had previously issued multiple, lengthy documents setting forth the Administration’s legal defenses of Bush’s NSA program, and Gonzales did little more than monotonously recite those scripted points. In response to questions calling for him to deviate from the script, he either refused to answer or claimed he was unable to do so.
Although lacking in grand drama, Gonzales’ testimony marks the beginning, not the end, of this scandal. How this scandal will be resolved is very much still to be determined, and its resolution depends exclusively on the course of action chosen by Bush opponents. Gonzales' defense of George Bush creates several potent opportunities to ensure that the Administration is held accountable for its repeated and deliberate acts of law-breaking.
Discussions among Bush opponents about what the next steps ought to be have centered around procedural events such as appointment of a Special Prosecutor or the issuance of subpoenas for additional witnesses to be called before the Judiciary Committee. But none of those procedural steps, either standing alone or even aggregated together, is anywhere near sufficient to further this scandal or even to sustain public interest in it.
Absent some sort of smoking gun discovery that there has been a clear and deliberate pattern of abuse of these eavesdropping powers (either as part of this program or some other as-yet-undisclosed program), we now have most if not all of the truly relevant information that exists with regard to this specific NSA eavesdropping program.
Thus, to compel the Administration to face real consequences for their unlawful actions, Bush opponents must do something they virtually never do -- agree on a limited set of clear, focused and principled points, and then activate every instrument of public persuasion which exists, and invent new ones which do not exist, to convey the formulated argument in a coordinated fashion. If that is done, Americans can be convinced that the actions of the Administration and the theories of presidential power they have embraced are deceitful and dangerous, and that these actions constitute a profound assault on the political values on which America was founded and which has made our country both unique and great for the last 225 years.
The war over this scandal is not going to be won in the comfort of courtroom arguments as part of some litigation, nor is it going to be won because some Republican Senators decide – for the first time in five years – that their loyalty to the law or to the country outweighs their loyalty to George Bush. The Administration will be held accountable for its illegal conduct here if and only if Americans becomes convinced that the Administration’s actions were wrongful and deserve punishment. And that, in turn, will happen only if Bush opponents formulate an effective and coordinated strategy for making this case directly to Americans, and then articulate those principles aggressively and passionately.
The case that ought to be made need not and should not depend upon the types of overly calculating and manipulative message manufacturing in which our political consulting class so relentlessly (and unsuccessfully) traffics. This scandal resonates so passionately with so many people because it implicates our most basic political principles. For that reason, any campaign to persuade Americans of the seriousness of this scandal must, in my view, be rooted in that passion and adhere unapologetically to those principles. Following are a few of the types of arguments and approaches which I believe could be powerful and effective:
(1) The President is now claiming, and is aggressively exercising, the right to use any and all war powers against American citizens even within the United States, and he insists that neither Congress nor the courts can do anything to stop him or even restrict him.
It is true, as many have been pointing out, that this scandal, at its core, is about the rule of law -- about whether the President has the right to break the law. But it will not suffice to rely upon that slogan because Gonzales has now articulated a clear response to it: namely, he has claimed that they did not break the law because there are legal authorities and legal theories that allowed them to do what they did.
They then parade around lawyers such as Gonzales and others to spout esoteric legalisms and, as intended, the impression is created that this is nothing more than a mind-numbingly complex lawyer dispute to be resolved with legal briefs in court. If all we say is "the President broke the law" and they say "no, we adhered to the law," nobody will be persuaded either way.
It is undeniably true that Gonzales, in his testimony, articulated a clear and coherent legal theory to defend Bush’s violations of the law. But that legal defense is so radical, so dangerous, and so contrary to our most basic political values, that the first priority, in my view, is to make Americans aware of exactly what powers the Administration claims it has the right to use -- not just against Al Qaeda, but against American citizens, within the United States.
The Administration’s position as articulated by Gonzales is not that the Administration has the power under the AUMF or under precepts of Article II "inherent authority" to engage in warrantless eavesdropping against Americans. Their argument is much, much broader -- and much more radical -- than that. Gonzales' argument is that they have the right to use all war powers – of which warrantless eavesdropping is but one of many examples – against American citizens within the country. And not only do they have the right to use those war powers against us, they have the right to use them even if Congress makes it a crime to do so or the courts rule that doing so is illegal.
Put another way, the Administration has now baldly stated that whatever it is allowed to do against our enemies in a war, it is equally entitled to exercise all of the same powers against American citizens on American soil. In a Press Release issued on January 27, the DoJ summarized its position on the legality of its actions this way:
In its Hamdi decision, the Supreme Court ruled that the AUMF also authorizes the "fundamental incident(s) of waging war." The history of warfare makes clear that electronic surveillance of the enemy is a fundamental incident to the use of military force.
Gonzales took that argument even one step further on Monday by claiming that even in the absence of the AUMF, Article II of the Constitution gives the President the right to employ all "incidents of war" both internationally and domestically – which means that even if Congress repealed the AUMF tomorrow, the Administration, by this view, would still have the absolute and unchecked right (under Article II) to use all war powers against American citizens. Indeed, it claims that it would have those war powers even if Congress passed a law prohibiting the exercise of those powers against Americans.
The "war powers" which a President can use in war against our enemies are virtually limitless -- they include indefinite detention in prison with no charges or access to lawyers, limitless eavesdropping, interrogation by means up to and perhaps including torture, and even killing. The reason the Administration claims it can engage in warrantless eavesdropping against Americans is because it has the general right to use all of these war powers against Americans on American soil, of which eavesdropping is but one example. Without hyperbole, it is hard to imagine a theory more dangerous or contrary to our nation’s principles than a theory that vests the President -- not just Bush but all future Presidents -- limitless authority to use war powers against American citizens within this country.
Critically, these claimed powers are not purely theoretical or, as Gonzales claimed in response to questions from Sen. Feinstein, "hypothetical." Quite the contrary. Not only has the Administration claimed these powers, they have exercised them aggressively -- not just against Al Qaeda, but against American citizens.
In my view, the single most significant and staggering action of the Bush Administration – and there is an intense competition for that title, with many worthy entries – is the fact that the Administration already has detained an American citizen on American soil (Jose Padilla), threw him into a military prison indefinitely, refused to charge him with any crime, and refused even to allow him access to a lawyer, and then kept him there for several years. Then, the Administration argued that federal courts are powerless even to review, let alone limit or restrict, the Government’s detention of American citizens with no due process.
And to justify this truly authoritarian nightmare – being detained and locked away with no due process by your own Government – the Administration relied upon precisely the same theory which Gonzales advocated on Monday to justify the Administration’s warrantless eavesdropping on Americans. Like warrantless eavesdropping, indefinite detention is a "war power," and the Administration therefore claims that it has the right even to detain American citizens with no charges, and nothing can limit or stop that power.
If the American people decide through the Congress that we do not want the Government to be able to use those war powers against us -- as, for instance, we did in 1978 when we, through our representatives, enacted FISA, or when we enacted legislation last December banning the use of torture -- do we really have a system of Government where the President can literally ignore that, violate the laws that we enact, and then use those war powers against American citizens in the face of laws prohibiting it?
Under the Bush Administration, that is the country we have become. Alberto Gonzales spent 8 hours on national television the other day justifying why we must be a country which lives under a system which operates in that manner. That is a system of government wholly foreign to how Americans understand their nation and how our nation has always functioned. There is no more important priority than making as clear as possible to Americans just how broad and truly radical are the powers claimed by this President.
(2) This scandal is not about liberalism or conservatism, but is about core American political values.
There are scores of prominent conservatives and conservative organizations vigorously opposed to the Administration’s actions, and every public event and campaign should include them in order to prevent this scandal from being (falsely) depicted as the by-product of liberal softness on terrorism or personal hostility towards the President. There are multiple ways to achieve this and several reasons why doing so is vitally important.
Having Bob Barr introduce Al Gore’s passionate anti-tyranny speech, sponsored by a libertarian group, is a perfect illustration of how this can and should be done. Former Reagan Justice Department official and hard-core conservative Bruce Fein wrote an Op-Ed in The Washington Times urging that Bush be impeached if the Administration did not immediately cease its illegal eavesdropping. The media is starting to become aware of this trend, and bloggers can and should demand retractions from any journalist who falsely characterizes opposition to the Administration’s law-breaking as "Democratic" or "liberal."
This approach is not a cynical tactic designed to create a false appearance of bipartisanship -- such as when Bush defenders parade Joe Lieberman around as "proof" that the "serious Democrats" support the Administration’s terrorism policies. Conservative opposition to the Administration on these issues is not merely comprised of a handful of token or conflicted conservatives. Opposition to the Administration’s law-breaking among conservatives is substantial and it is growing. And it is easy to understand why this is so – the Administration’s theories of presidential power are repugnant to many core principles of true conservatism, from the supremacy of the rule of law to the importance of restraining the powers of the Federal Government (as the Founders intended), particularly when it comes to those powers which can be wielded by the Government against American citizens.
Importantly, this is not a case where liberals and conservatives arrive coincidentally at the same place despite beginning from radically different premises -- the way, say, Pat Buchanan’s isolationist theories just coincidentally lead him to the same anti-war views as certain pacifists on the Left. Here, the basis for opposition to the Administration’s action among liberals, conservatives and everyone in between comes from exactly the same set of principles and beliefs -- namely, that what is at stake in this scandal is whether America will continue to live under the principles of law and the system of government on which our country was founded and which has kept us both strong and free.
For that reason, the extremist theories adopted by the Administration present a unique opportunity to forge powerful alliances in the fight against the naked lawlessness which is being foisted upon us – a lawlessness which transcends, and is not a part of, any mainstream American political ideology. The Administration’s actions here do not contravene liberal principles or conservative principles per se, but really, more than anything else, are simply un-American, and that is why there is such a diverse and broad-based revulsion to their actions.
Contrary to the central deceit manufactured by Bush followers over the last five years, patriotism is not defined by loyalty to a particular elected official. Indeed, excess loyalty to a single individual is the very antithesis of patriotism, as it places fealty to that individual over allegiance to the country, its interests and its values. Patriotism is measured by the extent to which one believes in, and is willing to fight for and defend, the defining values and core principles of our country.
Americans will understand this appeal if it is made forcefully and clearly -- with conviction -- because these values are neither esoteric nor abstract. They are instilled within all of us by virtue of growing up and/or living here. That is the language we need to use to speak about this scandal. This scandal is not about George Bush or eavesdropping. It really is about who we are as a nation and whether we want to preserve our core political values.
We should not only be willing, but eager, to seek out conservative, libertarian and independent allies in this fight. Doing so will destroy the deceit that this scandal arises out of liberal opposition to Bush or aggressive counter-terrorism measures. But much more importantly than that, these nonpartisan efforts will highlight the true threats to our nation posed by the Administration’s conduct.
(3) Do we want to radically change the way our Government works for the next several decades all because of Al Qaeda?
America is a country that has faced numerous, grave external threats in its history – including several which threatened the very existence of our nation. The strength and genius of our country is that we defeated each of those threats without ever needing to abandon our founding principles by vesting the type of unchecked and overriding authority in a President which George Bush has now seized. Indeed, FISA itself, which Bush claims he has the right to violate on account of Al Qaeda, was enacted by Congress and signed into law by the President in 1978 -- at the height of the Cold War, when we faced a threatening and powerful Soviet Union.
Are we really now a country that is going to discard American political principles -- all for Al Qaeda? Bush opponents can and ought to emphasize that the greatness of America has always been that we adhere to the principles on which our nation is based even while we confront and defeat external threats. We have never needed to vest the type of unlimited power in a President which George Bush is demanding, nor have we ever needed to relinquish the basic constitutional principles of our country in order to defeat our enemies.
We remain a strong country -- and we become stronger -- not by allowing Al Qaeda to force us to abandon the defining principles and values of our country, but by defeating Al Qaeda and any other threats while insisting that our Government abide by the constitutional structure and principles on which our country is based.
The foregoing are merely proposals for how the seriousness of this crisis can be conveyed to Americans. There are other important points as well (such as the fact that the Administration always expressly recognized the validity and constitutionality of FISA -- indeed, Bush even requested and then signed into law amendments to FISA -- and they only suddenly began claiming that FISA was unconstitutional once they got caught violating it and needed a defense for their law-breaking).
But whatever arguments are selected, what matters is that there be a coordinated, comprehensive, and full-fledged campaign to persuade the public of the importance of this scandal – not by relying on legal processes or the standard media machinations, but by implementing a campaign designed to allow Bush opponents to control our own message and communicate directly to Americans. In my view, whether this can be accomplished will, far more than any other factor, determine whether the Administration is held accountable for their law-breaking or whether this scandal will join the countless others which meekly and inconsequentially fade away into the attention-deficit media whirlpool.
Mr. Greenwald -
ReplyDeleteYou are extraordinary, both in your writing and in the visibility that you have achieved.
Inspiring.
I'd like to add an observation: the defenders of this program, with very few exceptions, have no first-hand knowledge of what the program actually does.
ReplyDeleteThat is, anyone who characterizes the program should be asked, as a first question, how they know that their characterization is correct.
I personally am sure that this program does not simply target calls from Al Qaeda members to the US; something that limited would never have resulted in the number of leaks from NSA that appear to have occurred.
Glenn,
ReplyDeleteThis is the most coherently articulated statement of what is most troubling about this situation that I have seen yet. Every visitor to this site should tattoo it on their forehead. I'm a Brit living in Canada and you can be sure the rest of the world is watching very carefully how the US deals with this issue. American politics has reached a defining moment.
Incidentally, I also caught your C-SPAN appearance and thought you did a mighty job.
I agree that your arguments and logic are intact and persuasive but will remain unused on the shelf unless the everyday person gets it. America seems to have a strong case of Stockholm syndrome. Jon Stewart captured the problem on last night's show with Torie Clark when he explored how this admin is demanding more and more transparency from its citizens while declining transparency for itself. Americans will relate to this problem when they see it hit home, thus a reminder to them of the data bases that have been created: Pentagon, E-voting, National Herd (now that one's a lulu), NSA, etc. and how the triggers for everyday Americans to be "Watched" don't pass the laugh test. Left Coaster has a post up from LATimes on the very definition of a Terrorist. We're fighting bumper sticker simplicity from a Rove defense with too lengthy an argument. Sorry to say, many Americans simply have too short an attention span. But if the argument points out that this admin is ALREADY listening, watching, reading, overseeing your life and substituting what you thought was your life for the one they'll allow you to have ... well let's see where that one takes us.
ReplyDeleteExcellent summation of the situation, as usual.
ReplyDeleteI think, though, we need a better word than 'scandal' to describe it. Suggestions?
The claims of unchecked executive power this administration asserts are antithetical to the most basic prinicples upon which our gov't was founded. Surely we can get this across to the public.
ReplyDeleteThe Founders were men of reflection who wrote extensively on political matters and the need to disperse power so as to avoid abuses of it.
For example, I found this passage in Washington's Farewell Address which seems to speak to the Yoo theory of an unchecked executive.
It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of that love of power, and proneness to abuse it, which predominates in the human heart, is sufficient to satisfy us of the truth of this position. The necessity of reciprocal checks in the exercise of political power, by dividing and distributing it into different depositaries, and constituting each the guardian of the public weal against invasions by the others, has been evinced by experiments ancient and modern; some of them in our country and under our own eyes. To preserve them must be as necessary as to institute them. If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit, which the use can at any time yield.
Outstanding, as usual.
ReplyDeleteI believe that Senator Feingold has gotten off to a very good start on this with his speech on the floor of the Senate yesterday. Unfortunately (but not surprisingly) it has gotten little coverage in the media.
ReplyDeleteKudos to you, Mr. Greenwald, for both your committment to the truth and your eloquence when speaking of this issue (I caught you on C-span).
ReplyDeleteBush will continue to avoid accountability for his and his administration's actions re: the NSA wiretapping as long as he remains in his familiar and comfortable groove of "protector". But I believe a term that may better describe Bush's actions is that of "vigilante".
Vigilantism, although often understood by many in a given situation, has never been condoned, much less applauded, by our government nor the majority of its citizenry. Remember Bernard Goetz?
Protection, yes; vigilantism, no. Every effort must be made to remind people of what is at stake here. I'll be keeping an eye on your blog and will soon be sending a Letter to the Editor to my local paper.
I admire your pluckiness!
I will try to internalize this excellent strategy and spread as best I can.
ReplyDeleteTiny quibble: wasn't Gonzales's "hypothetical" dialogue with Sen. Feingold?
Glenn, excellent work as always. What we have to do now is distil everything you just wrote into a few simple and cogent soundbites that opponents of this lawlessness can repeat over and over again until it seeps into the public consciousness.
ReplyDeleteHere's my attempt to do that with respect to your first point:
-Under the Administration's radical legal theory, the only thing preventing the imposition of full-scale marshall law here in the United States (for as long as al Qaeda exists) is the discretion of the President.
-Do you trust that all future presidents will use that awesome power wisely?
The 14 Defining Characteristics Of Fascism
ReplyDeleteDr. Lawrence Britt has examined the fascist regimes of Hitler (Germany), Mussolini (Italy), Franco (Spain), Suharto (Indonesia) and several Latin American regimes. Britt found 14 defining characteristics common to each:
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.
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.
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.
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.
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. Divorce, abortion and homosexuality are suppressed and the state is represented as the ultimate guardian of the family institution.
6. Controlled Mass Media - Sometimes to (sic) 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.
7. Obsession with National Security - Fear is used as a motivational tool by the government over the masses.
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.
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.
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.
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 and letters is openly attacked.
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.
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.
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.
Look Familiar!
Excellent, Glenn.
ReplyDeleteThere was a letter in the New York Times today that said :
Congress could easily resolve the issue of competing laws, if it really cared to, by simply revoking the 2001 joint resolution that authorized the president "to use all necessary and appropriate force." Both it and the resolution that authorized the war in Iraq should be revoked and replaced with a single, more fully considered and carefully written resolution.
You blew that argument away completely by saying that no matter what Congress does, it can’t resolve this issue because
even if Congress repealed the AUMF tomorrow, the Administration, by this view, would still have the absolute and unchecked right (under Article II) to use all war powers against American citizens. Indeed, it claims that it would have those war powers even if Congress passed a law prohibiting the exercise of those powers against Americans.
This point demonstrates completely just how radical, extreme and dangerous the administration’s arguments are.
I think this point needs to be emphasized first and foremost before we even begin to talk about any “punishment” that the administration deserves.
"War?" What "war?" This has been bothering me for some time -- is the United States officially in a state of "war?" If so, doesn't that require a formal declaration of same? And doesn't it require a formal, identifiable enemy of some kind? Some nation state?
ReplyDeleteClarification? Anyone? Anyone? Bueller?
Surely we can get this across to the public.
ReplyDeleteThe Founders were men of reflection who wrote extensively on political matters and the need to disperse power so as to avoid abuses of it.
For example, I found this passage in Washington's Farewell Address which seems to speak to the Yoo theory of an unchecked executive.
That's another good one, hume's ghost. But on this blog we've been quoting the Federalist papers, the Constitution, SCOTUS decisions, the United States Code, Thomas Jefferson, etc., etc. over and over. Yet we still get the "Dog", the "fly", bart, and their ilk ignoring all that in order to repeat what Powerline told them. Granted, some of these people are not as stupid as they appear; they are willful collaborators in the destruction of our system of government, all because "their side" gets to "win". But still, I'm getting pessimistic about any principled arguments making it out. Mr. Barr, Mr. Fein, Mr. Sessions and their fellows are well-informed on these issues, and genuinely put conservative principles ahead of Party. But they're not in power. Instead we have "principled" men such as Senators Specter, Graham, or McCain, who will express "reservations" while rolling over and complying with every single thing this administration does. After all, the President is of the same party as they are. Gad, and I thought it was disgusting that Jefferson orchestrated smears about President Washington being senile. Yet vicious partisanship hadn't seen anything yet. And at least Jefferson wasn't trying to destroy our form of government and install an elective despot. 'Cause, you know, the President is the nation's Commander-in-Chief in peacetime as well as wartime, as part of his enumerated powers that are nowhere in the Constitution.
I just hope Senator Feingold's "pre-1776 mindset" approach, coupled with Patrick Henry, can somehow break through the mush.
--mds
I agree with everyone that whatever points we choose have to be distilled into a summary and TV-friendly fashion. I believe all of these points can be.
ReplyDeleteMy intent here was not to provide that user-friendly package, but first to lay the arguments out in their full form in order to convince the doubters and fearful, cautious ones (of which there are many on "our" side) that these arguments are true, compelling and can be articulated clearly and forcefully -- and without looking weak on terrorism, anti-American, overly partisan, etc.
Other than the fact that George Bush did it (which, by itself, ensures that a substantial portion of the population (but nowhere near a majority) will support it), there really is nothing partisan or ideological about this law-breaking or these theories.
Glenn a question....
ReplyDeleteI read your article...excellent work but there is something that's puzzling me.
You state:
"(1) The President is now claiming, and is aggressively exercising, the right to use any and all war powers against American citizens even within the United States, and he insists that neither Congress nor the courts can do anything to stop him or even restrict him."
You narrow the discussion on this point and state:
"Gonzales' argument is that they have the right to use all war powers – of which warrantless eavesdropping is but one of many examples – against American citizens within the country. "
Further: "Gonzales took that argument even one step further on Tuesday by claiming that even in the absence of the AUMF, Article II of the Constitution gives the President the right to employ all "incidents of war" both internationally and domestically – which means that even if Congress repealed the AUMF tomorrow, the Administration, by this view, would still have the absolute and unchecked right (under Article II) to use all war powers against American citizens. Indeed, it claims that it would have those war powers even if Congress passed a law prohibiting the exercise of those powers against Americans."
(Sorry for the long quotes)
Given what you wrote, I'm confused about how the Adminstration is providing a legal reason for their position based on Article II. Now maybe I'm just being dense, but what is the Adminstration's rationale for using these "War Powers"?
To put it another way let me ask some questions:
1) If the administration maintains that it can use these "War Powers" in any situation against Americans based on Article II, doesn't this mean that we have to be "at war"?
2) If we aren't at war, then there is no rationale, correct?
3) Or is the Administration saying that, regardless of being "at war" or Congress passing laws, or the courts ruling against us, we can use war powers based on Article II?
The reason I ask all this if to resolve my connfusion about what their justification is. Also, if they are claiming ultimately that they can exercise these "War Powers" regardless of the country's situation, then we can frame this whole issue in even simpler terms:
The President claims that he can use these extraordinary powers in spite of what the Constitution says, and has used them in direct contravention of the Constitution. This means the President violated his Oath of Office that he swore before God.
- SoulCatcher
ReplyDelete(2) This scandal is not about liberalism or conservatism, but is about core American political values.
Glenn, that was just so beautiful, it actually choked me up, not unlike the reaction I have when reading Publius, or about the Founders, or singing the National Anthem. I'm just a true blue, total patriot who worships the founding principles of the United States, and your post today elegantly taps into all of that.
But your point number (2) most resonates with me. This issue is far, far too important to allow the perception that it is just some cynical, anti-Bush contrived controversy. It is also too important for those of us who are not left-of-center to permit Bushite notions of patriotism and the rule of law to prevail among the non-left. We who oppose Bush's monarchical legal theories from other than a left-wing perspective exist, and I want that loudly heralded.
I've watched in actual shock to see several hardcore Bush supporters actually argue that Bush's "war-time" decisions are not only unreachable by Congress, but also by the courts. One friend of mine -- a good man and a smart one -- actually told me that even if Bush is violating the law, Bush answers to a "higher law" than Congress.
This is sheer madness. It must be stopped.
If Bush gets away with this illegal spying on Americans...then he can get away with anything. You have perfectly crystalized the issue: do we want a president with unlimited power to spy on, arrrest, imprison, torture and kill American citizens on American soil?
ReplyDeleteI would very much like to see Orrin Hatch and other nominal conservatives forced to answer that question in public.
Glenn,
ReplyDeleteAs always you have clearly outlined what is at risk in the policies of this administration.
It would be helpful to compile a list of all Republican organizations and or blogs that are against this policy. If we could all join forces on this issue, we would have a more powerful voice.
What might be beneficial is an all out letter, e-mail and phone campaign to all political entities about how we consider all it the first priority of every government official to protect our Constitutial rights and maintain the rule of law.
The lefty bloggers have been doing a bangup job raising funds for opposition candidates; maybe they could be encouraged to get the word out to people to raise funds for a campaign to shout the Bush machine down. Also, there could be a blog like the "Open Letters" or a central Web site where people can go for information on what these maniacs are doing. I'm not good at that sort of thing, but I do like working on boiling issues down for busy or uninterested people to grasp (it's sort of my job). If I can come up with anything I think would be effective, I will let you know (or go to wherever you would think best). What kind of timeline are we working with before the ability to stop this insanity is gone forever?
ReplyDeleteGlenn,
ReplyDeleteYOU have laid out the themes the Democrats need to use when discussing this issue.
Loved the analysis. Now, two things need to happen:
1-this analysis has to be delivered as a major policy address by some high profile person with the gravitas to sell the ideas.
2- these ideas must be distributed to ALL the dems in talking points format and they have to hit the talk shows.
This morning I had C-span on. It was covering the Senate during the morning addresses. Dems got up an delivered a variety of remarks on Asbestos legislation, science education, you name it.
Republicans got up, one after the other and delivered the same message "NSA domestic spying is really terrorist interdiction, it is legal and we need it."
They all had different angles on the theme, but were all singing in the same choir.
It's great that you put this wonderful information out here in greater blogastan, but now the challenge for you, and all the bloggers in the reality based world, is to find a way to break through to the mass population by harnessing the name recognition of some well known Dems (or honest others).
You are wasting the frustration of the Jimmy Carters, George Mcoverns and even the Mary Jo White's of this world(she was the US Attorney in NY who's office uncovered Al Quaida and who prevented the millenium bomb plot and the plot by Shiek Abdel Rachman (sic?) to blow up the Holland Tunnel).
There are people with the chops and the frustration to be the spokeperson for this issue. Don't leave it to likely presidential candidates--they are in the thrall of their consultants. We should find spokespersons who can deliver our message. Get the message out there, if it has legs the candidates will follow--like the sheep they have already shown themselves to be.
Given what you wrote, I'm confused about how the Adminstration is providing a legal reason for their position based on Article II. Now maybe I'm just being dense, but what is the Adminstration's rationale for using these "War Powers"?
ReplyDeleteYou shouldn't assume that if a Bush Administration position doesn't make sense to you, it's because you're missing something. Sometimes, what they say really doesn't make sense - and they don't actually care, because we haven't found a way to impose consequences for that.
The Administration's theory does NOT depend upon there being a declaration of war. Indeed, the Administration itself recognizes and acknowledges that the AUMF is NOT a declaration of war (they argue that the AUMF gives them even more power than a declaration of war does, believe it or not, but they do agree they have no declaration of war).
This all stems from the arguments back in the Yoo Memorandum (which have been around since Reagan). They argue that the President has the right and obligation to defend the nation against external threats under Article II of the Constitution. Neither Congress nor the courts do anything to limit or take away that power because it is bequeathed to the President by the Constitution.
Thus, under Article II, Bush is constitutionally empowered (and obligated) to take all steps necessary to protect our national security - including threats emanating by American citizens on U.S. soil -- and, since this is a power given by the Constitution, nobody and nothing (short of a Constitutional amendment) can limit that power. If the courts said he didn't have those powers, there is an argument to make (and they've certainly hinted at it) that they would not have to abide by it, since the judicial "interference" would itself be unconstitutional.
It is clear and concise language like Glenn has presented here that makes me think we have a chance to stop this naked power grab, but considering their willingness to do / say anything its not going to be easy.
ReplyDeletethanks
bad
I don't seem to be alone (C.C. 3:55PM, SoulCatcher 4:22 PM) in my confusion surrounding the Administration's contention that because we are at war the President can use all "incidents of war".
ReplyDeleteI'll admit a good I'm no legal eagle, but I don't remember a decalration of war, just an authorization to use military force. So help me someone, is an AUMF substantially the same as a declaration of war?
Jeff
Ooops, Glenn answered my question as I was asking it. Thanks!
ReplyDeleteJeff
Thank you so much.
ReplyDeleteIt seems to me that the value of maintaining diversity within a society is that there will always be available a reservoir of differing points of view - ready to rise to the occasion should conditions change or they are needed.
I think the Democracy we enjoy is in crisis and want to thank you for standing up and saying what is needed.
If I could give you a medal I would.
RR
Great post. Required reading.
ReplyDeleteA small criticism. You write:
"...its resolution depends exclusively on the course of action chosen by Bush opponents"
"Discussions among Bush opponents about what the next steps ought to be..."
"Bush opponents must do something they virtually never do..."
"Bush opponents can and ought to emphasize that the greatness of America has always been . . ."
I think you undermine your Point #2 by making repeated references to what "Bush opponents" can and should do.
Can I make some alternate suggestions?
"Illegal wiretap opponents"
"Constitution supporters"
"Rule-of-law supporters"
"Bill Of Rights Lovers"
"Non-robotic Bush apologists"
"Patriots"
etc.
One of the most effective strategies I've seen is to take the Bush legal arguments and bring them to their logical conclusion.
ReplyDeleteFor example, I was struck by some of the questions put to Gonzales along the lines of:
"If, as you claim, the President can do this, then what legally prevents him from [incarcerating all Arab-Americans, etc.]"
Except, rather than asking that of the Administration (who will just dodge and weave), we have to simply point out to the American people the "list of horribles" which the Bush position allows. Then we ask people to envision those powers in the hands of President Hillary Clinton.
Yeah, it's fearmongering a little bit, but that seems to resonate with people on the right.
Glenn's post and comment above about fascism hits close to home. That being said, I suspect that in the not too distant future, many of us will be "disappeared" for, among other things, violation of "Godwin's law." AG Gonzalez will argue that it is an "inherent law" and that violation of it requires the commander in chief to secretly exercise his inherent powers on those pesky violators.
ReplyDeleteIn my dreamland America - with fewer bedwetting ninnies running around crying for big daddy Bush to protect them, "Greenwald's law" would say that anyone who relies on 9/11 or terrorists as the reason for their unconstitutional behavior be ridiculed and prevented from holding office.
Great post, as always. Glenn, since you've been on the front lines with this, I was wondering why more folks discussing this have not invoked the Fourth Amendment? I've heard conservatives such as Hindraker selectively refer to it, claiming it allows for "reasonable searches" while ignoring the rest of the Amendment's language about "probable cause" and requiring a warrant! Many folks have spoken insightfully about FISA, but it seems the Fourth Amendment is central to this entire issue. Perhaps the counterargument would become that Article II trumps the Fourth Amendment, but I'm not sure how many Constitutional scholars would buy that... and I'm not sure many Americans would either, if the conflict was laid out plainly. Perhaps the Fourth Amendment might serve as the basis for one of the rallying points/talking points needed. Your take on this, as always, is appreciated...
ReplyDelete>Now we need to distill this message in 25 words or less.<
ReplyDeleteI nominate
The Administration claims that whatever it is allowed to do against our enemies in a war, it is equally entitled to do to American citizens.
23,24,25...perfect.
Glenn,
ReplyDeletecan you not stay in the US for a while so you are closer to action and perhaps the so-called 'heavyweights' can consult with you more easily and effectively?
Altan
Bush's argument is based on essentially 'War measures' when no formal declaration of War has been delivered by the legislature.
ReplyDeleteQuestion: Cannot a Senator, oh say a Russ Feingold, not unilaterally approach the Senate for confirmation of this basis and seek a formal Declaration of War against Al Qaeda?
This happened in 1941 following Japan's attack on Pearl Harbour.
A formal Declaration of War against Al Qaeda would require confirmation of their culpability for 9/11, a debate that should take place in the Senate and should call upon expert witnesses, new testimony and analysis of the events of that day, notwithstanding the official report.
Truth is obliged to speak to power or it will forever perish.
Glen, another excellent statement and a must read for all Americans.
ReplyDeleteI would reemphasize a major point in a slightly different way: You state that “. . . this scandal, at its core, is about the rule of law -- about whether the President has the right to break the law.” I agree, but the President’s men claim they are following the law, as they unilaterally define it. That’s the key. So a different way to describe the problem is that the President and his men are claiming the unilateral right to define what is, and is not, the law, without regard to Congressional statutes and without regard to what the Courts say the President can or cannot do.
The notion that the President can unilaterally define what the law is, when it applies, to whom it applies and how it applies, without having to follow Congressional statutes or be subject to judicial review is fundamentally unlawful under our Constitution. The Constitution is based on the bedrock principles of separation of powers: Congress makes the laws, the Executive executes the laws, and the Courts enforce and interpret the laws. Bush claims he can unilaterally do all three, and that claim is a direct assault on the Constitution.
It is true that the current focus is on the President’s “war powers.” I think you give away too much here, because under the Constitution, even the war powers can be prescribed or limited by Congress and the Courts. But more importantly, in an ill-defined, potentially endless war, such as the misnamed “global war on terror,” the Bush anti-constitutional doctrine permits no check on the power of the President to decide unilaterally when we are at war, who the enemy is, what constitutes unlawful behavior by that enemy, who “sympathizers” are and what actions the military (not the law enforcement or judicial system) can do with any suspect or detainee. Under Bush's theory, anything can be declared unlawful by the President – any speech, any action, any opinion – and there is no check from anyone other than the President.
So the simple message to the American people should be: Bush claims that he can replace the Congress and the Courts, and he can unilaterally define his own powers without any Constitutional limits from Congress or Courts. It’s one-man rule. This is the theory of dictatorships, not constitutional democracies.
This simple message to the American people goes to the heart of the Bush arguments, and it avoids the illusion that this is about the President protecting us from al Qaeda. This message also explains why all thinking Americans, liberal, conservative or whatever, are horrified by this view.
John Chandley
(scarecrow)
I wondered how the Bush-supporters would react if we accused them of being fascists? I assume that they would not like it. Can they defend persuasively? Would they learn from trying to defend?
ReplyDeleteAnd to demonstrate Glenn's very accurate point that concern about the illegal, warrantless NSA surveillance crosses party and ideological lines, see neo-libertarian Jon Henke's latest at QandO
ReplyDeleteI'm sure you have already seen it, but Dan Eggen in today's Washington Post raised a point that I've been asking: If the administration thinks it is acting lawfully but continues to say the only calls involved are international ones, shouldn't they also be arguing for the power to tap domestic-to-domestic calls without a warrant if possible terrorists are on both ends? Doesn't the fact they aren't arguing this indicate that they might admit privately the thin legal ice they are on?
ReplyDeletehttp://www.washingtonpost.com/wp-dyn/content/article/2006/02/07/AR2006020701745.html
Thanks for all your work. I think it essential that Congress strongly request testimony from the FISA court itself, presumably the chief judge and one or two senior judges. (1)MOST US citizens still believe that most federal judges are less partisan than DC politicians, so it would lend credibility to the process. (2) This is a constitutional crisis pitting the executive branch against both the judiciary and the legislature, and the notion of "checks and balances," hence it is appropriate that both of the latter be involved. (3) The FISA judges have extremely valuable experience and insight to lend.
ReplyDeletePreferably this would be in open session, insofar as possible. For citizens to see that it's not just "partisan" fighting among DC politicians."
Glenn, this is exactly right.
ReplyDeleteAs an additional souce, I suggest Harry Frankfurt's "On Bullshit." Your strategy cuts to the heart of the matter, which is that we will not succeed by logically slapping down their arguments because they aren't making arguments, they're BS-ing. They don't care whether what they're saying is true, they don't care whether it's logical or contradictory, they only care if it works, if it convinces people.
We need to have the facts as to why their statements are false, but those facts aren't the strategy. BS is like the tar baby in the Brer Rabbit stories, fighting it directly is always a losing strategy because it's so much less effort to come up with more BS than to come up with counterarguments.
So don't argue with the details and lies (which will change tomorrow if they stop working), argue the core principles. Make them meet our argument. Truth is at a disadvantage when attacking BS, but an advantage when defending against it.
Here's my attempt at an "elevator conversation" that incorporates the three points:
"Bush is claiming he has unlimited use of war powers within the United States, and so does every future president. He says he will only use them against enemies, but can be no rules or laws to ensure that beyond "trust me." This is deeply un-American, and goes against everything our forefathers intended. The only justification given is that al-Qaeda is an unprecedented threat, and there is no other way to fight it. I think those of us who lived through the Cold War, those of us who fought in World War II would disagree. We have faced greater threats, and brave, patriotic Americans should not surrender the things that make our country great in the face of fear."
Okay, that's way more than 25 words, but it's a start.
And to demonstrate Glenn's very accurate point that concern about the illegal, warrantless NSA surveillance crosses party and ideological lines, see neo-libertarian Jon Henke's latest at QandO
ReplyDeleteAnd yet, in the comments to that post, the same mindless Bush-worship, liberally interspersed with the usual invocations of Cass Sunstein and Jamie Gorelick. And someone who attempts, from a conservative perspective, to point out how this is turning into a Cult of the Executive, is labeled a troll. Try harder, Mr. Henke.
See, that's what gradually came to depress me, as someone who cheered at the Congressional election results of 1994. It really has become all about being on a winning "team" and not at all about embracing the ideals of a constitutional democratic republic. So of course they're not worried about what a future Democratic President would do with these powers; there will be no future Democratic Presidents, because perpetual single-party rule under an elective despot is the ultimate victory. "Well, we had an accountability moment, and that's called the 2004 election."
--mds
Mr. Greenwald--
ReplyDeleteThanks tremendously for everything you are doing. I'm as appalled as most people (especially according to the polls) by the Bush administration's actions in these matters.
One small point. You mention in this post that "they only suddenly began claiming that FISA was unconstitutional once they got caught violating it and needed a defense for their law-breaking".
However you mentioned on C-SPAN that the administration never claimed FISA was unconstitutional. I've read some of the legal rebuttals to the DOJ memos supporting the program but I'm not enough to a law scholar to parse them effectively.
Did the administration claim FISA is unconstitutional or not?
Also, I have to admit that, if I were on the fence about this issue, some of the points Professor Turner made on C-SPAN might have seemed fairly convincing. He, like Gonzales, kept referring to the "fact" that previous Presidents from Washington to Wilson and so on engaged in warrantless surveillance.
Is the argument against this simply that they were all acting before FISA?
Also, what of Professor Turner's claims that "every court" has upheld the idea that the President has this kind of power. He seemed to be indicating that the FISA Court gave opinions that said "The President doesn't need FISA because he has the power to act inherently without this oversight". Did the FISA Court really render itself obsolete?
I have a feeling that he was being slippery with the meaning of these facts, but I have to admit the feeling that you never nailed him down on the subject or proved him wrong.
Thanks again, for doing great work, producing a great blog and helping keep us informed.
Jeff Coleman
For what it's worth, AG General Gonzo is going to be on Charlie Rose tonight. He is the only listed guest, so I don't know if there will be anybody else on to counter what he has to say, unless Charlie will step up to the plate.
ReplyDeleteMr. Greenwald:
ReplyDeleteYou repeatedly accuse the President of violating the law and then reject the use of the legal justice system to to bring Mr. Bush to justice. Is this because that you recognize as a lawyer that you do not have a legal leg to stand upon?
If you intend instead to resort to hyperbole, let us examine your primary rhetorical argument - Mr. Bush is exercising his presidential war powers against not only al Qaeda, but also American citizens living in the United States.
This argument makes the false implication that American citizens living in the United States cannot also be members, agents or supporters of al Qeada and, therefore, enemy combatants legally subject to the President's war powers.
As you noted in this blog, there has yet to be any evidence offered that the President has engaged in a "clear and deliberate patter of abuse of these eavesdropping powers." By that, I presume that you are recognizing that there is no evidence that the President is abusing this particular war power against innocent Americans with no relationship with al Qaeda.
In the face of this absence of evidence, you instead refer to the detention of Jose Padilla as an enemy combatant. This detention has nothing at all to do with the NSA data mining program at issue and is in fact a red herring meant to distract from your lack of evidence of any abuse of the NSA program.
Indeed, this comparison undermines your argument that Mr. Bush is somehow targeting his war powers on innocent Americans. Mr. Padilla is no innocent. The evidence of which we are aware shows that he is either a member or agent of al Qaeda and is, therefore, an enemy combatant.
Your subsequent argument is that Mr. Bush's NSA data mining program is somehow a radical change in the way our government works. Your evidence for this claim is that Congress enacted FISA and the NSA program may violate that statute.
How again does this 28 year old statute represent the way our government has been working for the past two centuries? In fact, this statute may be the first attempt Congress ever made to limit or eliminate the President's constitutional intelligence gathering powers.
You imply that FISA was a minimalist response by Congress to protect personal privacy during the Cold War, when a more powerful Soviet Union was the enemy. In actuality, FISA was one of a series of Congressional enactments meant to restrict the power of the executive after Watergate and was signed by arguably the weakest President of the 20th Century, who thought so little of the threat presented by the USSR that he scolded the American people to get over their inordinate fear of communism.
In short, it is much more likely that the enactment of FISA was an ahistorical overreach of Congressional power than the NSA program is an overreach of traditional Presidential power.
However, as a Republican hawk, I welcome the debate which you are proposing. I am sure in the legal and moral foundation of my arguments. However, without any evidence of actual abuse nevertheless illegality, I believe that the Democrats do not have the stomach to advance your arguments.
Jeff - With limited TV time, there are only so many points you can make. I preferred to use my time to articulate what I believe are the most important issues rather than correcting every one of Professor's misleading statements about relatively arcane areas of the law, which most people don't care much about. But to answer your questions:
ReplyDelete(1) Presidents did engage in warrantless eavesdropping before FISA was encated precisely because doing so wasn't against the law (I think I did make that point). We enacted FISA to put a stop to that. That makes all the difference in the world.
(2) All the court cases he referenced saying that the President has inherent authority to eavesdrop were pre-FISA - NONE ever held that he can engage in warrantless eavesdropping even in the face of a criminal statute making such eavesdropping a crime (come to think of it, I think I made that point, too). One lower court decision (from the applllate FISA court) said in dicta that IF the President has power which the constitution grants, the Congress can't take that away. That's just basic Constitutional law 101, but tells us nothing about whether Congress has the right to regulate how Americans are eavesdropped on.
(3) When I said that the Administration never claimed that FISA was unconstitutional, I was referring to the 5 years they were in office BEFORE they got caught breaking the law. If they really believed it was unconstitutional, why didn't they ever say so (as they do all the time with other laws that they think are unconstitutional)? Not only did they never say that, they constantly affirmed the validity of FISA by endorsing it and even asking for amendments to it. They only began claiming it was unconstitutional once they got caught violating it and needed a defense.
Glenn,
ReplyDeleteWell said. I had some other thoughts on the issues and questions facing the country: Criteria to evaluate inter alia :
- 1. Whether a president is or is not fit for office, or should be removed; and
- 2. Whether Congress is or is not timely asserting the rule of law/their oaths to compel this President to assent to the rule of law.
I focused on how a state proclamation would force the country to wrestle with these criteria/issues; and give the voters nine [9] months to evaluate who is for or against the Constitution. Bluntly, the problem is the mechanism to remove the President is also in rebellion against the Constitution. The State proclamations calling for impeachment would force the government to show its hand, and give the voters plenty of time to watch more of the NSA-hearing-like non-sense of excuses and baloney – then make a decision to find new leaders who assert their oaths, not their excuses.
Your version is succinct. Thanks!
If I understand the Administration's argument correctly, they are basically saying that they can spy on anyone during a time of war. If that is too broad, they would say that they can spy on anyone suspected of being an enemy.
ReplyDeleteThen Nixon did nothing wrong. We was spying on people accused of being communists (the enemies at the time). By this logic, Joseph McCarthy was a hero, not a national disgrace.
(2) All the court cases he referenced saying that the President has inherent authority to eavesdrop were pre-FISA - NONE ever held that he can engage in warrantless eavesdropping even in the face of a criminal statute making such eavesdropping a crime (come to think of it, I think I made that point, too). One lower court decision (from the applllate FISA court) said in dicta that IF the President has power which the constitution grants, the Congress can't take that away. That's just basic Constitutional law 101, but tells us nothing about whether Congress has the right to regulate how Americans are eavesdropped on.
ReplyDeleteHuh?
You appear to be conceding that the Congress does not have the constitutional power to enact statutes which limit or eliminate the President's constitutional power to conduct warrantless surveillance of foreign groups and their agents in America.
FISA pretty clearly requires the President to obtain warrants to perform nearly all surveillance of foreign groups and their agents in America including the surveillance being conducted by the NSA.
This being the case, how exactly is FISA not an unconstitutional infringement on the President's power to conduct warrantless searches?
"rhizome said...
ReplyDeleteIt's my understanding that Congress would not be able to declare war against Al Qaeda because Al Qaeda is not a legal "state" that could be identified as a target for war. It is effectively equivalent to the concepts of poverty and drugs that "wars" have been waged against.
6:38 PM "
Al Qaeda is no more ephemeral than the Bush's administration's legal arguments used to justify their transgressions.
The legal question is: 'Is statelessness of an enemy a statutory or constitutional limitation on a formal Declaration of War?'
Bush maintains he knows the enemy and needs the wiretaps to find them, so why not formally limit the enemy to Al Qaeda and associates before their are no limits on the term 'enemy'.
If you recall his speech post 9/11: 'You are either with the terrorists or against us' or alternately, 'You are either with us or you are a terrorist'. The enemy needs to be formally defined.
Anon @ 5:33 PM
Great work.
ReplyDeleteI think the powers Bush is claiming can be simply articulated as "martial law." That's what it really amounts to. We're suspending some or all of the Constitution because we're "at war." And, like most autocracies that use martial law to govern with unchecked power despite nominally be constitutional republics, the "war" is one that will not end so long as the same interests hold onto power.
Another part of the "martial law" argument is that Bush has begun to claim that he is now the commander-in-chief of all Americans, not just the armed forces.
But that's what this amounts to: we're now under martial law, in so many words.
Bart the “Republican Hawk” and apparent advocate for an autocratic chief executive says:
ReplyDeleteHowever, without any evidence of actual abuse nevertheless illegality, I believe that the Democrats do not have the stomach to advance your arguments.
In other words, since we don’t have any evidence that Bush has abused his power, then we must trust him not to abuse his power in the future.
Nice try, Bart, but this isn’t about what Bush did or didn’t do. It’s about whether any President must obey laws passed by Congress and the Courts.
You don’t believe he does.
Do Republicans have the stomach to advance that argument?
We see a few getting squeamish already.
This isn’t about wire-tapping, it isn’t about Osama – it’s about the rule of law – something you apparently are willing to abandon.
Thanks so much for your efforts on this. You are making the ramifications of this brazen power grab so clear even a blindman should be able to see them. One aspect of this whole debate (not to mention the whole Iraq-Al Quaeda mess) has puzzled me, however: the acceptance & use of the word "war" to describe the status quo & as the underpinning for all of the administration's actions. I know the dictionary definition of "war" makes the term applicable, but I've always thought that the elephant in the room (as it were) was the constitutional meaning of "war" which is really what's at play in the administration's rhetoric. Yet I have never seen any real discussion of this in the MSM. Maybe it's too "inside baseball, " but I feel it's a crucial point which has been overlooked. Are we truly at war in any constitutional or legal sense or is this yet more Room 101 rhetoric from Rovebots ??? Would the administration prevail if this underpinning for all it does were challenged in court ? And if a state of war in the legal or constitutional sense does not exist, wouldn't there be absolutely no justification for anything they are doing ? Just wondering......
ReplyDeleteThis being the case, how exactly is FISA not an unconstitutional infringement on the President's power to conduct warrantless searches?
ReplyDeleteThere are all sorts of areas where both Congress and the Executive have constitutional authority to act. That is the whole point of the Youngstown decision. Under our system of Government, where the Congress has authority to act and so, too, does the President, the President does not have the right to act contrary to the law.
Just because the President has power to act in an area doesn't mean that Congress can't regulate that power. The whole point of our Constitution is to give the branches shared and interdependent powers. The central power of Congress is to make the law, and unless they regulate in an area where they are not permitted to regulate, everyone - including the President - has to abide by it.
Let me ask you this - if FISA is unconstitutional and can't regulate the President's eavesdropping activities, why didn't the Administration ever say so? Why did they go to Congress and ask for amendments to FISA after 9/11 in order to expand eavesdropping powers? Why did Bush sign FISA amendments into law if it was unconstitutional? Why did Bush praise Congress for giving him additional eavesdropping powers through FISA amendments if he has all the unlimited eavesdropping power possible regardless of what FISA does? Why did the Administration support further amendments to FISA in 2002 and 2003 on the ground that it wanted to expand its eavesdropping power? Why didn't the Administration ever once say to Congress - "no need to amend FISA because it can't restrict us."
Do you think maybe they only decided to say that FISA was unconstitutional once they got caught breaking that law and needed a legal defense for doing so?
What is the ultimate solution, then? Bush will not relinguish the powers he claims. Is regaining the House and impeachment the only way to deal with this administration?
ReplyDeleteI would like to see Al Gore carry the message, when it is distilled, forward. How can we secure the air time on television that will be necessary to reach the public? This will need to be a concerted effort, with the message being delivered repeatedly. Bush catapults the propaganda, we must catapult the truth.
It's a bit longer than 25 words but it's reasonably close and easy to remember.
ReplyDelete1) The purpose of FISA was to make it as easy and fast as possible to conduct surveillance on terrorists (i.e., threats to U.S.)
2) FISA was updated in 2001 to make it even easier, faster, and permissive.
3) The other important purpose of FISA was to protect against the immoral use of government surveillance for purely political or financial reasons against opponents and critics.
Thus, if you're trying to get around FISA, it's probably not because of its first primary purpose of keeping an eye on terrorists (everyone agrees with that purpose). Thus, it's likely because you want to get around the legitimate protections it provides citizens from the unlawful intrusions of government into their private lives and the use of those intrusions to gain power, extort money, and silence dissent.
Oops.
ReplyDeleteIt should have been,
'Either you are with us, or you are with the terrorists'
It's getting hard to keep straight who the terrorists are these days...
Anon @6:57
I guess it doesn't matter that Congress has not actually declared war. But, shouldn't it?
ReplyDeletessdZack said...
ReplyDeleteBart the “Republican Hawk” and apparent advocate for an autocratic chief executive says:
However, without any evidence of actual abuse nevertheless illegality, I believe that the Democrats do not have the stomach to advance your arguments.
In other words, since we don’t have any evidence that Bush has abused his power, then we must trust him not to abuse his power in the future.
Not at all.
If you do not have any evidence of abuse, you should not claim that it has occurred.
However, you never trust the government on anything.
While it does not have the power to legislate away executive constitutional powers, Congress has the power and the duty to perform oversight of the executive. The President has had his officers repeatedly brief Congressional leaders of both parties on this program. If Congress wanted more information, they could have asked. If the executive was not forthcoming, Congress could have dragged the relevant officers in by subpoena if necessary.
Nice try, Bart, but this isn’t about what Bush did or didn’t do.
No, it is completely about whether Mr. Bush violated the law. I spent several hours posting the legal basis for this program back at the "Follow-up to the hearings" blog. I am a criminal defense lawyer who works occasionally on constitutional law questions and this case is pretty easy legally. That is why Glen is not demanding that this be brought before a court of law.
It’s about whether any President must obey laws passed by Congress and the Courts. You don’t believe he does.
Nonsense.
The President is bound by constitutional statutes and the rulings of law handed down by the federal courts.
The case law is entirely on the President's side in this argument.
Do Republicans have the stomach to advance that argument?
Unless you have been in a cave, that is exactly what the WH has been doing for months now.
We see a few getting squeamish already.
There are some Republicans in Congress who want to preserve congressional power over foreign policy. This is natural. However, none want to end this program. Instead, they want to revise FISA to accommodate the program.
This isn’t about wire-tapping, it isn’t about Osama – it’s about the rule of law – something you apparently are willing to abandon.
The basic rule of law which applies here is that you are presumed to be innocent of any crime until evidence is presented which proves your guilt beyond a reasonable doubt.
This comment has been removed by a blog administrator.
ReplyDeleteGlenn,
ReplyDeleteI also thought you were great on TV, but you might try some reverse Grecian formula for gravitas:)
On a serious note, I'd like the answer to a question I'm sure you've thought of: Under the powers the administration is assigning to the President, what is to stop him from canceling elections in 2008, if he so chooses?
The answer, obviously, is that nothing stops him, but I wondered if any statements from the administration are at all explicit about this authority.
How about instead of calling it a 'scandal', we call it a 'crisis'.
ReplyDeleteGlenn,
ReplyDeleteYou should send an edited-down version of this to the Washington Post op-ed page.
On another note, with all the talk about FISA, the 4th Amendment seems to have been downplayed. Can you address the relevance of the 4th Amendment here? I don't see how the "warrant" clause of the amendment doesn't make clear that the president cannot order warrantless searches of US persons, even though he can do this against wartime enemies who are not US persons. (On a side note, the 3rd Amendment makes clear that the framers explicitly contemplated whether wartime allowed for emergency suspension of core liberties, and decided against it, whereas the habeus clause specifies when it can be suspended--therefore, where the constitution does not specify wartime conditions for suspending liberties, one should presume they cannot be suspended, no?)
Can you explain? It seems prima facie that the president's program violates the 4th Amendment, not just FISA, especially since the phrasing of the amendment seems clearly to presume that "reasonableness" includes not only a warrant (taken as a given in the syntax of the amendment), but in fact and more scrupulously, a particular kind of warrant, namely one that issues "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." What argument can be made that warrantless surveillance or searching of US persons is constitutional under the 4th Amendment, when it does not even fulfill the basic warrant requirement, much less the particularities of probably cause, oath or affirmation, and specific description?
I think this is all quite masterfully said. Glenn's post and all the comments here are spot on. The Democrats can finally show they are willing to be tough on something, and maybe by acting tough on this they can convince the rest of the country that Democrats can be tough on America's foreign enemies.
ReplyDeleteDemocrats need to carefully explain to the American people why it is that when the government wiretaps without warrants or a court review of any kind telephone calls and emails from drug dealers to their cohort American citizen partners in crime that our country is NOT at risk of falling apart, becoming a Monarchy, becoming a fascist state, etc.
As compared to when the government wiretaps without warrants or court approval the telephone calls and emails of a foreign enemy, who seeks NOT profit like the drug dealers but the death of millions of Americans and the complete destruction of our country, that such behavior IS the downfall of the democracy, institution of a King George Monarch, and the beginning of brown shirt patrols in all neighborhoods.
Surely, once the country as a whole is enlightened by the clear superior thinking and minds of the left as to the very serious qualitative differences between warrantless wiretaps of drug dealers (which is perfectly OK) versus the warrantless wiretaps of foreign enemies and the traitors in our midst (which is akin to a resurrection of Hitler) the sooner the Whitehouse will be surrounded by a million unwashed hippies who will drag the President out of the Whitehouse personally.
Democrats must demand that these differences be explained and action taken. Glen is correct that you must use every means at your disposal to pressure every democrat politician running for public office to publicly commit to the only democrat idea of the last 11 years (i.e. "Impeach Bush" and then let's see what happens").
Finally I agree with those who say the democrat position must be explained clearly, precisely, and in a very short encapsulation, so that those who aren't intellectual equals of the genius democrat crowd can understand the message. So I would suggest the following:
Warrantless Surveillance of Drug Czars OK; but if Osama is calling then we must DELAY.
Protecting our liberty the democrat way; means trading some lives for political hay.
Says the "Dog"
Glenn, your speech is very frightening.
ReplyDeleteBut now that I’m scared, what to do? Do we target the leadership or the population? Is the ruin of the civilization inevitable or can we correct the course? Germany and Japan teetered on the brink and came back – maybe that’s the comparison we should be making. We either have to change now, or suffer muuuuuuchh more before we reclaim what we’ve lost.
So this is what it was like in Germany when Hitler won his election. My biggest fear is, and I’ve been afraid of this for a few weeks now, Bush and Cheney aren’t going to leave quietly. I can easily see them suspending elections in 2008 as part of their war powers. They are a cancer, and they are metastasizing as we watch. I feel that we don’t have a lot of time left.
I’m scared. And I don't know what to do. Glenn, can you think of things ordinary people can DO?
The case law is entirely on the President's side in this argument.
ReplyDeleteYou point me towards the ruling that allows the president to unilaterally assume war powers on individual American citizens instead of states, and then point me towards the one that gives him the discretion and perogative to determine who is an "enemy combatant" and who isn't.
I am a criminal defense lawyer who works occasionally on constitutional law questions and this case is pretty easy legally.
If you applied this reasoning in a defense case, I wonder if the prosecuter would then be required at all.
Glenn, your is very frightening.
ReplyDeleteBut now that I’m scared, what to do? Do we target the leadership or the population? Is the ruin of the civilization inevitable or can we correct the course? I guess Germany and Japan teetered on the brink and came back – maybe that’s the comparison we should be making. We either have to change now, or suffer muuuuuuchh more before we reclaim what we’ve lost.
So this is what it was like in Germany when Hitler won his election. My biggest fear is, and I’ve been afraid of this for a few weeks now, Bush and Cheney aren’t going to leave quietly. I can easily see them suspending elections in 2008 as part of their war powers. They are a cancer, and they are metastasizing as we watch. I feel that we don’t have a lot of time left.
I’m scared. Glenn, do you have ideas as to what ordinary people should do?
Z said...
ReplyDeleteOn another note, with all the talk about FISA, the 4th Amendment seems to have been downplayed. Can you address the relevance of the 4th Amendment here? I don't see how the "warrant" clause of the amendment doesn't make clear that the president cannot order warrantless searches of US persons, even though he can do this against wartime enemies who are not US persons.
At least three federal courts of appeal have held that the 4th Amendment does not apply to gathering electronic intelligence against foreign groups or their agents, whether they be American citizens or aliens. The Supreme Court has declined to hear any of the appeals from these cases.
This is why the arguments of those who oppose this program always come back to FISA.
However, these courts have not resolved whether evidence gathered during this warrantless surveillance can be used against the targeted individuals in a civilian criminal court. I would guess that such evidence would fall under the exclusionary rule.
It appears that the United States is using the NSA data mining program to identify probable enemy agents and then is requesting FISA warrants in their investigations of these agents to make criminal cases.
Bart,
ReplyDeleteYou are quite the suck-up to power for being a defense attorney. And, um, how the hell would somebody establish standing to bring this before a court of law?
Bart said:
ReplyDeleteThere are some Republicans in Congress who want to preserve congressional power over foreign policy. This is natural. However, none want to end this program. Instead, they want to revise FISA to accommodate the program.
But why bother to revise FISA? Isn’t it completely irrelevant?
After all, Cheney says “we have all the legal authority we need.”
If Congress revised FISA to accommodate this program, but put restraints or oversight on the executive branch that they didn’t want - is the administration then free to ignore any revised law that Congress passes because of the President’s ‘inherent authority’?
Isn’t that the power that they claim to have?
Why should Congress bother passing such laws if the administration is not bound by them?
Doesn’t sound like the rule of law to me.
Fantastic analysis and proposal for, basically, a PR campaign. And I couldn't agree more.
ReplyDeleteMany yrs ago I worked for a progressive PR firm, Fenton Communications. They work for a lot of non-profits and issue campaigns. I wonder if they are working with any clients on this (ie a human rights or civil rights group). Could a coalition of bloggers and other progressives hire such a firm to launch such a campaign? If it was to be successful it would probably need to include office holders and get them on message. Which would be the tallest of orders. Anyway, just a thought. Thank you for all the work you put into this blog, it is excellent and much appreciated. And kudos for your excellent TV commentary the past few days.
Dick Durata said...
ReplyDeleteHow about instead of calling it a 'scandal', we call it a 'crisis'.
Perfect. This IS a Constitutional Crisis.
We all need to write our senators.
Thank you Glenn. I'm using bits and pieces from your post and sending another letter to both my Repub senators.
Let's do a repeat of our Alito filibuster call and swamp them with letters!
http://www.congress.org/congressorg/home/
-jen - occupied ohio
JTN said...
ReplyDeleteBart,
You are quite the suck-up to power for being a defense attorney. And, um, how the hell would somebody establish standing to bring this before a court of law?
Very good question. That is where congressional oversight comes into play...
FISA was enacted partly because people like Nixon and Bobby Kennedy were using CIA and FBI to eavesdrop on political opponents and agitators.
If you have proper oversight, it will be awfully hard to hide something like that. If congressional hearings don't reveal illegal surveillance, then these committees are avenues for whistleblowers to reveal illegality without compromising national security.
If Congress finds that the executive has conducted illegal surveillance on someone like MLK, then they can make that public and there will be no shortage of law firms willing to represent that person for free in a law suit.
Congress can also proceed with impeachment in the case of true abuse of power like what Nixon did.
Glenn -- fanastic stuff. Those 3 points are superb. I would suggest that there is a fourth point that is even more important than the other 3 -- one that needs to be repeated ad nauseum:
ReplyDeleteCongress passed the FISA to prevent the President from spying on Americans without court approval.
The idea here is to use one of the Republicans' most succesful techniques against them. Usually we are the ones arguing nuance while Republicans hammer away at a few big-picture points. If every Democrat who gets on the air makes the point above, it won't really matter public opinion-wise whether the Republicans claim that the program is legal, because to do so they will be forced to talk in "legalisms." (Unless, of course they are willing to openly acknowledge the Constitutional argument that is covered in your first point, but if they do this they are IMHO sunk).
I know the point may seem a bit "see spot run," but there's a reason that the Administration has made an incredibly concerted effort to distract from the original intent of FISA. Their purpose has been to make it seem as though Congress empowered the President with FISA, which legitimizes the argument that Bush has merely stretched powers that he was already given. That, in turn, allows the administration from showing their true Constitutional position -- i.e. that Congress cannot pass a law restricting the President's ability to wiretap domestically.
Bart said: Congress can also proceed with impeachment in the case of true abuse of power like what Nixon did.
ReplyDeleteWhat kind of abuse is it when the president claims to have powers he does not (or should not) have? Abuse of the constitution maybe?
exceptionally cogent, glenn; thanks.
ReplyDeletewas wondering if anyone else out there had the same chilled response as i did to AG's repeated deflection of questions concerning 'how many americans caught in this,' etc., by stating something like 'with respect to the program under question here today....'
to my ear, that signaled that there are clearly 'other' programs that have not been exposed and that likely to precisely what we all fear.
Zack said...
ReplyDeleteBart said:
There are some Republicans in Congress who want to preserve congressional power over foreign policy. This is natural. However, none want to end this program. Instead, they want to revise FISA to accommodate the program.
But why bother to revise FISA? Isn’t it completely irrelevant?
I agree.
As I understand it from the leaks published in the NYT and WP, the NSA data mining computer program monitors suspect numbers for month on end to get a single hit where someone on the line is discussing landmarks or using jihadist language.
In order to put this kind of program under FISA, there would have to be a provision for retroactive warrants after several months of monitoring rather than the 72 hours currently allowed. In that case, what is the use.
If Congress revised FISA to accommodate this program, but put restraints or oversight on the executive branch that they didn’t want - is the administration then free to ignore any revised law that Congress passes because of the President’s ‘inherent authority’?
The President's inherent authority is pretty narrow. Again, the courts have only allowed surveillance of foreign groups and their agents. So far as we know, this program is monitoring a few hundred to a few thousand telephone numbers in the US or overseas which have been discovered in captured al Qaeda documents or databases. The program is further narrowed to international calls from or to the US.
In effect, the NSA program is monitoring international calls from a tiny fraction of the hundred million or so possible numbers.
This inherent authority does not extend to barring Congress from exercising oversight authority over the program to ensure that it doesn't overreach into illegality. Indeed, the WH came to congress with this program, not the other way around.
Why should Congress bother passing such laws if the administration is not bound by them?
Judge Richard Posner came up with the only viable way of enhancing the law to provide additional oversight that I have heard. He suggested that an ongoing oversight committee be formed consisting of the head of Homeland Security, the heads of the intelligence agencies and some retired judges to keep tabs on the programs in place.
This makes a great deal of sense to me. I want to be able to use every tool at our disposal to spy on a very elusive terrorist enemy seeking to attack us in the United States while being assured that a President Hillary Clinton is not moving on from illegally reviewing FBI files on political opponents to using the NSA to monitor their phones.
Altan said...
ReplyDeleteBart said: Congress can also proceed with impeachment in the case of true abuse of power like what Nixon did.
What kind of abuse is it when the president claims to have powers he does not (or should not) have? Abuse of the constitution maybe?
That is correct. I believe that part of the Articles of Impeachment against Nixon included abusing his authority as commander in chief to order the intelligence community to spy on political opponents.
If you have genuine evidence that Mr. Bush was spying on Hillary Clinton or the like, I would be leading the parade calling for impeachment.
However, I am not willing to give up the best intelligence gathering tool since the ENIGMA program in WWII our of baseless fears and speculations.
In this crucial election year, Republicans are eagerly anticipating the Democrats' attempt to limit the president's authority to monitor communications between al Qaeda operatives overseas and their supporters here in the U.S.
ReplyDeleteAmericans will decisively reject this attempt and I predict the result will be a very unusual outcome, i.e., a gain in Republican strength in both the House and Senate in the mid-term election cycle of a president's second term.
In this regard we will be ever grateful to the Glenn Greenwalds of the world for putting lipstick on the pig of giving aid and comfort to our enemies during a time of war. This action will draw Democrats to what is ultimately a losing strategy, and strengthen the already prevalent notion that Democrats are hopelessly weak on national security and cannot be trusted to protect us from our mortal enemies.
RevMudd beat me to it with his response to your point 1 - MARTIAL LAW is what the broad public will understand Gonzales to have articulated.
ReplyDeleteThe President must either declare martial law or obey the law - he can't have it both ways. There's your framing.
I am not willing to give up the best intelligence gathering tool since the ENIGMA program in WWII our of baseless fears and speculations.
ReplyDelete...grepping through email records and automated phone transcriptions is the best intelligence tool since ENIGMA? You've gotta be kidding.
Why the hell wouldn't real terrists use encryption? Or better yet, take a cue from drug dealers and mafia, and just do everything in person.
This program depends on fatal incomptence on the part of any supposed terrorists.
Americans will decisively reject this attempt and I predict the result will be a very unusual outcome, i.e., a gain in Republican strength in both the House and Senate in the mid-term election cycle of a president's second term.
I predict a Republican gain by vote fraud. I wouldn't be surpised if such was considered as a "wartime power" by the likes of Yoo and Gonzales. If they think torturing children is acceptable in some cases, they'll have no issue with fudging numbers.
Glenn,
ReplyDeleteThanks for clearing up my questions. Now that you mention it, I do remember that you addressed those points, but approaching the question as a layman it's often hard to see through the "truthiness" that Professor Turner and Bush's supporters are so fond of.
And I agree completely that one of the most basic questions that Bush's supporters cannot answer is "Why didn't he say FISA was unconstitutional until he got caught?"
You definitely addressed that on C-SPAN, and Bush's April 2004 comment about wiretaps and court orders must be deliberately misinterpreted to read it as ambiguous.
Thanks again,
Jeff
A couple of points bart--
ReplyDelete"It appears that the United States is using the NSA data mining program to identify probable enemy agents and then is requesting FISA warrants in their investigations of these agents to make criminal cases."
Interesting--if true, this would strengthen the Admin's case, I think.
However, I think that this is specifically about FISA--so you're right, it's about FISA, but I'm not sure the situation has been presented completely accurately.
FISA in fact releases the executive from the warrant requirement in a number of cases (even most cases, perhaps). There seem to be various things required from the AG, but a warrant isn't among them. I think maybe the main reason this problem has legs is because of the ambiguous legal nature of a terrorist organization.
Instead, FISA seems to be in part a claim by Congress for authority to determine whether or not certain kinds of surveillance can be performed by the executive--among them, surveillance of U.S. conspirators with terrorist organizations. The three cases (Truong, Butenko, and Brown, I assume) don't seem to provide a good answer to that issue--and so the fact that they were all pre-FISA is relevant.
I've previously granted that it might be somewhat improper for Congress to establish a "court" for determining the legal status of such surveillance, but in principle, I think FISA might be a proper oversight of and limitation on the executive's power of foreign surveillance. It's a claim that when that surveillance is of a U.S. person communicating with a terrorist organization, then the executive needs to prove to Congress (via a "court", or whatever--again, I'd be willing to agree that FISA could be amended to provide for a committee instead, or something like that) that the surveillance is truly in the interests of gathering foreign intelligence.
Of course, I could be wrong.
Bart said...
ReplyDeleteAt least three federal courts of appeal have held that the 4th Amendment does not apply to gathering electronic intelligence against foreign groups or their agents, whether they be American citizens or aliens. The Supreme Court has declined to hear any of the appeals from these cases.
Perhaps. I don't know the cases. But even assuming your argument is correct--and I'd love to hear Glenn weigh in on the other side--it still leaves us with this key question:
How do we know the president is only spying on foreign groups or their agents? How can we be sure? The president has claimed the right to declare any American citizen an enemy combatant, to label him an enemy agent and thus to eavesdrop without a warrant, and he refuses to acknowledge any authority vested in any other branch to review or approve these decisions. For such claims was King Charles I executed, and because of such claims did the founders write the Constitution they did.
prunes said...
ReplyDeleteI am not willing to give up the best intelligence gathering tool since the ENIGMA program in WWII our of baseless fears and speculations.
...grepping through email records and automated phone transcriptions is the best intelligence tool since ENIGMA? You've gotta be kidding.
Most definitely not! Think about this for a moment...
The terrorists uses telephone and email communications extensively.
Most of the world's telecommunications are funneled through the US.
The terrorists can't sweep for bugs on their landlines and computers to keep their communications private. We are intercepting them enroute.
Furthermore, the computer voice and data recognition system is so good that we don't have to dedicate the tens of thousands of people it would take to monitor and transcribe these communications. Instead, we can cover much more ground with one super computer.
Why the hell wouldn't real terrists use encryption?
Ask them. Probably a lack of training and money to buy the gear. These guys are not that sophisticated and many of their best people have been captured and killed.
Anyway, the point is that they were operating in the open on the telephone and data lines and had no frigging idea they were being intercepted until that amazing A**HOLES over at the NYT blew this program when they knew what was at stake.
This is the same kind of system that the Able Danger program was using over at the Pentagon when they found Atta's 9/11 cell before the attack. But DoD lawyers fearing charges of "domestic spying" blocked a referral to FBI.
Or better yet, take a cue from drug dealers and mafia, and just do everything in person.
Huh? The FBI and DEA have literally thousands of miles of audio tape of Mafiosi and other similar scum on the telephone.
Late afternoon Specter came to the Floor and gave a NSA rundown and requested Senate to refer the NSA issue to the FISA court for a ruling, similar to what he brought up at the Monday hearing. Interesting to see how that plays out - gets the issue out of the public eye (they hope) but does submit the program to a judicial ruling. Good thing this isn't a complicated legal issue, eh Bart?
ReplyDeleteThis "scandal" or "crisis" or whatever-you-want-to-call-it will soon disappear completely from the public eye when the Democrats come to their senses and realize that it is poison to their hopes for gains in the mid-term elections.
ReplyDeletebart said, re: why terrorists wouldn't use encryption:
ReplyDeleteAsk them. Probably a lack of training and money to buy the gear. These guys are not that sophisticated and many of their best people have been captured and killed.
???
It can be done quite easily for free, particularly text.
I gather from your comment that you are not quite up to speed on the state of computer security today.
If you are interested, I highly recommend you check out the most respected security writer around, Bruce Schneier. He has some very interesting things to say about the legality and effectiveness of this program.
Hmmm. White House discloses new details on eavesdropping
ReplyDeletez asks bart: "How do we know the president is only spying on foreign groups or their agents? How can we be sure? The president has claimed the right to declare any American citizen an enemy combatant, to label him an enemy agent and thus to eavesdrop without a warrant, and he refuses to acknowledge any authority vested in any other branch to review or approve these decisions."
ReplyDeleteI've asked bart this very question multiple times. He still hasn't answered. I'm waiting, eagerly... *begging*... for an answer to that question.
Please, bart. Please. Answer that question.
How can we be sure the president is only spying on foreign groups or their agents?
Great stuff Glenn. I am in as anonymous because I can't figure out how to sign in otherwise without a log link - which I don't have.
ReplyDeleteAnyway, my very great problem with the manner is which the debate has been framed is the reliance on Youngstown and the "both Congress and the President may act" approach which, IMO, is a terrific red herring by an large.
The issue is the President's war powers and how those power affect, not Congress, but the People's rights under the Constitution and the Bill of Rights. Do the requirements of the 4th Amendment still hold in the face of a challenge by the President of the United States (or even a JOINT challenge of the President and Congress, acting together in agreement)that war powers allow for the President to supercede some of the provisions of the Bill of Rights?
We already have case law on this. Since the Administration is so fond of citing to the Civil War, THE case is Ex Parte Milligan. If you look at Hamdi, Milligan is the case that all the Justices struggled with (and for those who call this a "liberal v. conservative" issue - look who chewed the Administration a new one in Hamdi- Scalia. For once, I'm sad he couldn't whip some folks into shape *g*
Milligan says very clearly that, as long as U.S. courts are open and operating, a U.S. citizen on U.S. soil has full protections of the BIll of Rights, even at war and even in an area where martial law has been declared. That's pretty black letter. They specifically say they don't have to go looking under rocks for the sources of, and laws regarding, a President's "inherent" or unenumerated war powers, because his "war powers" don't mean diddly twat to a US citizen on US soil who is not in the military.
IF our courts are open, the Milligan is the law of the land that the President, and even the President and COngress acting jointly, cannot override the Bill of Rights.
So next we have the issues of electronic surveillance. Is it "covered" by the FOurth? Why yes it is - anecdotal tails of Lincoln in the civil war notwithstanding, tell me what would happen if, with both Katz and the Keith case, some DOJ lawyer tried to stand before the SUpreme Court and tell them that the "relevant authority" for electronic surveillance is what Lincoln did during the war? And failed to reveal to the tribunal eachof the "next century" cases that deal specifically with electronic surveillance? Where I be from - you be looking at sanctions, tongue lashings or worse. Why they can lie to the Public on C-span is then beyond me.
But in any event and contrary to what Bart represents, both of those Supreme Court cases, Katz dealing with law enforcement and the Keith case dealing with domestic surveillance, both held that being reasonable was not good enough. THey specifically found that the government had acted reasonably, but that did not fulfill the warrant clause in the 4th.
Now - apparently a part of the problem may be that someone, perhaps under the old paper reduction act????, in DOJ and at NSA has been using a "Short Form" Fourth Amendment that deletes everything after the words unreasonable searches and seizures. Short Forms are nice, but like Cliff Notes, sometimes you miss the important parts.
One important part is that you do not change the Constitution by Executive Branch Fiat, aka the AG's Sharpie doing a strike through on the warrant clause.
In BOTH surveillance cases, the court held that they will NOT allow the Executive branch to decide for itself what is reasonable. Instead, the 4th requires that an impartial magistrate looks at the request and determine that there is probable cause to believe that there is probable cause to believe that the information sought is going to be reasonably needed for an Executive Branch function - be that law enforcement, national security, intelligence gathering, administrative functions, whatever.
So - Milligan = Bill of RIghts trumps any claim of Presidential war powers with respect to US citizens on US soil whoare not members of themilitary.
When Bart argues: " This argument makes the false implication that American citizens living in the United States cannot also be members, agents or supporters of al Qeada and, therefore, enemy combatants legally subject to the President's war powers." he is plain wrong.
It is not the false implication that they cannot also be members of or supporters of al-Qaeda. Milligan was all about a guy who was claimed to be a Confederate traitor. OF COURSE US citizens can be bad guys. BUT - US Citizens are entitled to having the due process provided by the Constitution in determining that they are bad guys, at least, if they are on US soil, our courts are open and operating, and our govt is the one trying to treat them like bad guys.
That is not a difficult concept. I had to laugh at the AG's and Republicans approach that because they could take Hamdi, a guy captured on a foreign battlefield and with a foreign armed force, into detention then, OF COURSE they could listen in on everyone's phone calls because it is "less intrusive". Uh, guys, we capture criminals in the act of commiting a crime all the time here, and just because we are then authorized to arrest and hold them --- it doesn't mean that bc we can arrest and hold criminals captured en flagrante that ALL American citizens can be wiretapped. Who thinks up these arguments? Gosh - I can shoot someone breaking the threshold at my home and trying to kill me --- so, since I could shoot someone in that circumstance, I can wiretap all my neighbors bc that is less intrusive? Yikes.
I also notice that Bart wants to keep referring to a data mining program, whereas Hayden has said that it is NOT a data mining program, and Gonzales has said there are "other programs" about which he cannot comment, but the one on which he can comment, he can't comment as to whether it is targeted or data mining. Of course, part of the problem is that we do not know -- but see, IF the President were following the law, that would be ok (for us not to know) bc a court would know.
The only thing that makes this an issue of trying to force information from the lips of the Executive branch is not some desire of everyone to back seat quarterback national security decisions, it is that the PResident is not going to the branch of government to whom he is REQUIRED to turn --- not Congress, the Judiciary.
If he doesn't - he is breaking the ultimate law of the land. Even Congressional approval cannot give him the ability to write the Judiciary out of the 4th Amendment - neither he, Congress, nor both.
Now - moving on to "foreign terrorist surveillance" as opposed to domestic surveillance. Piffle. If I am an American citizen on American soil being spied upon by an American Agency, my rights stand alone under the Constitution and do not become greater or lesser by virtue of the nationality or rights of anyone with whom I am speaking.
WHile I would be interested in the 3 Court of Appeals cases Bart refernces, they do not supercede existing Supreme Court holdings as to domestic surveillance. Plus - I am hoping that Truong (sp) and In re Sealed Case are not part of what he relies upon. Because if so, he is far less than correct to say that they hold "that the 4th Amendment does not apply to gathering electronic intelligence against foreign groups or their agents, whether they be American citizens or aliens."
In re Sealed Case simply referred in dicta to a PResident's power to engage in foreign intelligence surveillance and NEVER spoke to how that would be impacted by one of the parties being a US Citizen and even if it had spoken to that (which it did not) it was not the case before it so anything said was dicta. I am also pretty daggone sure that Truong was a Vietnamese national, not a US citizen, so again, that case could not have "decided" anything about US citizens.
Let me say this again - as directly as I can. It is not "foreign" surveillance to surveill me, a citizen, in the United States, an use a US agencey to accomplish that. My 4th amendment rights do not go "poof" because I might talk to someone foreign, just as Milligan's 4th Amendment rights did not go "poof" based upon the fact that his correspondence involved what were, in essence, foreigner - members of the Confederate States. If I talk to a group that includes foreigners - my 1st amendment rights do not go poof. If my refrigerator has Canadian bacon, English Muffins, and my bedroom has Egyptian sheets, I do not suddenly loose my search and seizure protections as long as the Govt only take "furrin" things. I do not lose my rights to due process if I hire a foreign expert.
MY RIGHTS ARE MINE AND ARE DETERMINED BY REFERENCE TO ME AND NOT TO THIRD PARTIES.
Of course you CAN surveil US Citizens, but you need a warrant and the FISA court provides and extremly easy process for that warrant. But without regard to the battles over whether the Administration needs FISA changed to more efficiently and effectively do its job, the fact remains that NO REVISION TO FISA can delete the warrant requirement for US citizens in the US.
The main issue under FISA vis a vis the PResident's power is one on which it appears Congress has already caved and I don't really care much one way or the other. The issue as to what the President's rights are with respect to "foreign to foreign" eavesdropping are a question mark. FISA provides for the AG to be able to do that without a warrant, but to make reports to the Intelligence Committee (not gang of 8, the COMMITTEE). That is the "issue" for FISA, Congress, and the President.
Does the President have the independent right to engage in foreign to foreign surveillance without reporting to Congress.
WHEW.
Sorry to be so long winded, but IMO it is all the misdirection away from the 4th Amendment that makes this so hard for people. If you stick to the 4th Amendment, we have existing case law that says the President's war powers have no effect on the BIll of RIghts. Habeas - yeah, Bill of Rights -- no.
ANd BTW Glenn, I agree both that Padilla is the worst example of what the Govt is doing and that it is directly on point, bc it also deals with overriding the Bill of RIghts for an American Citizen on American soil
Padilla is, I am sure, a bad guy, but anyone who is less than horrified at the case is not a true American. To take an American Citizen and claim that they can be taken, on just an Executive Branch say so, into secret military detention, without habeas or notice to anyone, there held subject to secret interrogation including all DOJ approved interrogation methods for enemy combatants (all still without ANYONE ever having had to PROVE that someone WAS and enemy combatant - based just on a "say so" by "some guy" - is really frightening. Add that they are saying they can do this to anyone, anytime, and that once the military has you, you can be subjected to any treatement or punishment, including, per the Govt. torture and other memos, torture and killing, all still with just the "some guy say so" basis - what true American buys into that? If Padilla had not been in the Grand Jury process, with a lawyer, prior to being carted off, we would never have known anything about him. Actually, under the govt's rationale of the extent of their war powers, anyone who is "missing" could be held, or have been killed during interrogation,etc., on the government's "say so".
Yep - that's why the States demanded the Bill of Rights - so we could have cases like Padilla *insert bitter sarcasm*
In particular, it is interesting to note that even Judge Luttig - who went along with this argument initially, based in large part on his "you can trust the government" theory, found out that - even in a high profile case involving in-court representations made to the Fourth Circuit - you can't actually "trust" the Federal Govt.
He was SMOKING hot when he sent up his denial of transfer to civilian court and the DOJ's slight fear of what the Sup. Ct might have to do when faced with Padilla is clearly why they pulled it into civil court - at least until Roberts and Alito could be installed under their all encompassing Executive Power approaches.
But once again - dont' make this Conservative v. Liberal. If Hamdi is any precursor, the same Justice Scalia who was apoplectic about "transmorgifying" Habeas by allowing the govt to hold an American citizen at all without charges, will probably have a few words to say.
I'm sure the Justices were so hand-selected that we don't have much hope left though.
Congrats Bart - you guys just found a way to get rid of Constitutonal Amendments you don't like without having the people of the United States get a vote.
Be proud, but don't call yourself a Republican, bc Barry Goldwater will haunt you.
And he is much tougher than any neo-hawk.
OVERSEEING SURVEILLANCE (PBS Newshour 2/8/06)
ReplyDeleteIn a position reversal, the Bush administration announced it would brief all members of the House and Senate Committees on the NSA wiretapping program. Rep. Jane Harman and Sen. Lindsey Graham discuss the announcement.
GWEN IFILL: For weeks, the Bush administration has presented a unified argument in defense of its warrantless surveillance program. Secrets, they argued, should remain secret even from members of Congress. Vice President Dick Cheney made just that case last night to Jim Lehrer.
VICE PRESIDENT DICK CHENEY: If we end up destroying the effectiveness of the program by broadcasting far and wide operational details that would allow our enemies to, in effect, negate it or neutralize its effectiveness, that's not in anybody's interest. That clearly is not in the national interest.
GWEN IFILL: In Senate testimony earlier this week, Attorney General Alberto Gonzales said telling Congress too much could undermine an effective program.
[snip]
SEN. HERB KOHL: Mr. Attorney General, if applying to the secret FISA court is too burdensome, then would you agree to after-the-fact review by the FISA court and by Congress of the wiretaps used specifically in this program?
ALBERTO GONZALES: Sir, obviously, we want to ensure that there are no abuses. The president has said we're happy to listen to your ideas about legislation.
GWEN IFILL: Only eight members of Congress-- the majority and minority leaders of both Houses and the chairmen and ranking members of the Intelligence Committees -- were briefed on the previously secret surveillance effort. The vice president said those who were informed supported it.
But in July 2003, one of them, West Virginia Democrat Jay Rockefeller, sent this handwritten note to the vice president. It read in part: "Given the security restrictions associated with this information, I feel unable to fully evaluate, much less endorse, these activities."
The vice president responded last night.
VICE PRESIDENT DICK CHENEY: Wrote a letter three years ago and never raised any concerns after that, sat through numerous briefings, never had any questions that weren't answered. [sounds suspiciously like Glenn: "Let me ask you this - if FISA is unconstitutional and can't regulate the President's eavesdropping activities, why didn't the Administration ever say so?"]
JIM LEHRER: And nobody else of those eight -- none of those other eight did either?
VICE PRESIDENT DICK CHENEY: Correct.
GWEN IFILL: Rockefeller has argued that the circle of those "in the know" should be expanded.
SEN. JAY ROCKEFELLER: I have heard that hundreds, if not thousands, of people at NSA-- the White House, the Department of Justice and the CIA -- have a working knowledge of the NSA domestic surveillance program. And yet the White House position is that sharing the details about the program is carried out -- if that it is carried out with 40 members of the Senate and the House Intelligence Committees, that that's an unacceptable risk. I'm sorry -- I can't buy into that.
VICE PRESIDENT DICK CHENEY: If we had briefed all of the members of the Intelligence Committee, both Houses, as some have suggested, we would have had to brief 70 members of Congress into this program, because that's how many people have served on those two committees over the intervening four years.
JIM LEHRER: That would have been wrong?
VICE PRESIDENT DICK CHENEY: That's not a good way to keep a secret.
[snip]
GWEN IFILL: Vice President Cheney had an extended opportunity to make his case last night.
Tonight we're joined by two members of Congress who have expressed misgivings about the surveillance effort: Sen. Lindsey Graham, a South Carolina Republican, is a member of the Judiciary Committee; and Rep. Jane Harman, a California Democrat, is one of the eight members of Congress briefed on the program.
We understand, Congresswoman Harman that that briefing actually expanded this afternoon and you may have gotten a few of your questions answered. What can you tell us?
REP. JANE HARMAN: Yes, I did.
Well, after hearing the vice president last night on your show, he must have had second thoughts overnight and today things are somewhat different, and I am encouraged.
We had a three-and-a-half hour briefing this afternoon by Gen. Michael Hayden, who was head of NSA and is now the deputy director of national intelligence, and Attorney General Gonzales on some of the operational aspects of the program, as well as some of the legal underpinnings.
All Democrats on the committee were in attendance and most Republicans were. We had a chance to answer questions. And where we left it was they will be back and we are now holding -- or going to hold hearings in the House Intelligence Committee on FISA.
----------------
Move along. Nothing to see here.
"The Administration claims that whatever it is allowed to do against our enemies in a war, it is equally entitled to do to American citizens."
ReplyDeleteI like this but American citizens should be changed to YOU, as American citizens is still to distant. I think I remember reading about a poll in which most people (~60%)favored generic spying on people in America but this dropped to like 20% when asked about specifically spying on the individual being polled.
bart, bart, bart, you're so glib.
ReplyDeleteyou openly defend the unconstitutional indefinite detention of an american citizen, on the basis that he is a "bad guy."
and this is from . . . a so-called criminal defense attorney.
great! lets lock up all the supposed criminals indefinitely, and give them no access to the courts or counsel!
this will do wonders for your practice bart, keep advocating this.
revmudd and alandownunder have it right. W, in his lyin'-a** pansy way, has declared global, permanent martial law. Padilla was the test case. After all, the courts were open in Chicago and alleged conspiracy to explode a "dirty bomb" was a crime. But W signed a little paper and yanked Padilla out of the custody of a Federal Court.
ReplyDeleteHow? In the Cold War the ICBMs made the world a battlefield in the thinking of our National Security elite. The "declare war" clause war the first casualty. Still, there remained a distincton between our territory -- where peace and law prevailed -- and the frontiers where the cold war was hotter -- space and the Third World. Bush has erased this territorial distinction entirely. Now the battlefield and its attendant martial law is everywhere "terra" could potentially go. Like tax cuts, domestic law is tolerated to continue during the "war" -- except when and where W chooses otherwise. Martial law is not just for the battlefield anymore.
The maddening thing is that Bush supporters understand and accept this. They don't have the imagination to see how the zone of martial law could ever fall upon them, let alone the absurdity of claiming to be interested in exporting "freedom" under these circumstances.
prunes said...
ReplyDeletebart said, re: why terrorists wouldn't use encryption:
Ask them. Probably a lack of training and money to buy the gear. These guys are not that sophisticated and many of their best people have been captured and killed.
???
It can be done quite easily for free, particularly text. I gather from your comment that you are not quite up to speed on the state of computer security today.
I don't think I made myself very clear...
The point I was trying to make was that the enemy was communicating in the open by telephone and computer. They must have presumed they were not being monitored or otherwise they would have encrypted as you suggest.
The data mining program gave us an enormous strategic advantage because we could listen in on what they were saying just like we listened in on the Germans and Japanese with the WWII ENIGMA operation.
Can you imagine if a newspaper with a political agenda adverse to FDR found our about ENIGMA and decided to publish its details so the enemy knew that their codes had been broken and they were being overheard? Thousands of more men would have been killed as the enemy changed their means of communications and we could no longer discover their locations and plans.
Well, the NYT and WP have done just that by blowing the existence, means and methods of this NSA program. If they genuinely thought this program was being illegally misused, they should have gone to the heads of the congressional intelligence committees. If they had, these papers would have discovered that those committee heads were well aware of what was going on.
What they did in blowing this program was unforgivable and very likely a violation of the Espionage Act. If the enemy encrypts and goes underground as you suggest and then pulls off another 9/11 scale attack in secret, these SOBs have the blood of the victims on their hands.
Steve said...
ReplyDeleteIt's amazing how the NYT story, which contained no operational details whatsoever, somehow told the terrorists exactly what we are doing to spy on them. Funny thing is, you ask 10 people who believe the NYT gave away "exactly what we are doing," and they will give you 10 different versions of what they think we are doing.
All these SOBs needed to say to blow the program is that we had the capability to monitor their conversations by telephone and internet in and out of the United States and that this is how we stopped their Brooklyn Bridge operation and at least one other operation.
The allows al Qaeda to review the operations that were blown and tighten up their operational security to prevent similar monitoring in the future.
They also know now that we are probably not monitoring domestic conversations and that they can use these means with far less risk.
Glen has just written what I think will go down as THE DEFINITIVE ARTICLE on this whole matter. You are obviously incredibly brilliant, logical, intuitive about human nature, organized, and a superb stategist, Glen. Congratulations for such a brilliant article, and thanks for all the hard work that I know must have gone into writing it. I just discovered a man named Paul Craig Roberts. I urge everyone to immediately go read his writings on this issue. He's Reagen's former assistant of the Treasury, a Christian conservative, who has somehow landed up in the exact same corner as Glen. Maybe reason and true patriotism are what make them see eye to eye on this issue. I am hoping Paul Craig Roberts will quote large portions of Glen's post of today in his syndicated column. One thing that Paul Craig Roberts said is that he thought Gore's recent speech on this issue was the most important political speech of Paul's lifetime. Never a fan of Al Gore, I have to admit that I also was blown away by his speech, which, as Paul Craig Roberts pointed out, got very little press coverage. Perhaps Al Gore could be one of the vehicles through which some of Glen's stategy and viewpoint could get wide exposure. Maybe Glen could approach him. One can never trust a politician's words, but if there's even a chance Gore spoke from the heart and not just to advance a political agenda, then it would be worth pursuing getting your plan to him, Glen.
ReplyDeletePatrick Meighan said...
ReplyDeletez asks bart: "How do we know the president is only spying on foreign groups or their agents? How can we be sure?
You and I don't know personally. We don't know most of what goes on in the intelligence community. This is why Congress has oversight.
However, neither the self appointed whistleblowers nor the congressional leaders who received multiple briefings on this program have provided any evidence that any American citizen, nevertheless one without any connection to the enemy, has actually been surveilled. The only person identified by the self appointed whistleblowers as a target was the arab who was busted in the Brooklyn Bridge plot.
The president has claimed the right to declare any American citizen an enemy combatant, to label him an enemy agent and thus to eavesdrop without a warrant
Really? Feel free to provide that quote and a link.
I've asked bart this very question multiple times. He still hasn't answered. I'm waiting, eagerly... *begging*... for an answer to that question.
I have addressed this about a half dozen times over the past week on this blog.
Congrats Bart - you guys just found a way to get rid of Constitutonal Amendments you don't like without having the people of the United States get a vote.
ReplyDeleteBe proud, but don't call yourself a Republican, bc Barry Goldwater will haunt you.
And he is much tougher than any neo-hawk.
Which amendments were those?
they are willful collaborators in the destruction of our system of government, all because "their side" gets to "win".
ReplyDeleteAbsolutely. Some of the most voiciferous neo-monarchinsts aren't actually all that committed to monarchy. They're committed to winning, and the monarchists are winning.
Vince "Winning isn't everything -- it's the only thing" Lombardi is going to destroy this country from beyond the grave, something neither Marx, nor Lenin, nor Hitler, nor Stalin, nor Mao, nor for that matter Jeff Davis, could do when alive.
The Exalted said...
ReplyDeletebart, bart, bart, you're so glib.
you openly defend the unconstitutional indefinite detention of an american citizen, on the basis that he is a "bad guy."
When did I do this?
I told Glenn that his comparison between this detention and the NSA program was baseless and the comparison actually undermined his argument that the Administration had declared war on innocent Americans.
Since you asked, though, I agree with Scalia that American citizens should be tried under whatever criminal statute applies.
Good stuff.
ReplyDeleteI wonder if the Pentagon's domestic spying program TALON will be discussed in any hearings coming up. Here's more info http://www.msnbc.msn.com/id/10454316/
Under the current discussion in Washington re: NSA spying, 100% domestic spying on non-alQuada US citizens is out of bounds. We should demand that this program is investigated and terminated.
James Burnham once remarked that the end of Western Civilization will come about not by murder, but instead by suicide.
ReplyDeleteThis thread demonstrates how frighteningly accurate his prediction may turn out to be.
z asks bart: "How do we know the president is only spying on foreign groups or their agents? How can we be sure?
ReplyDeletebart responds: "You and I don't know personally. We don't know most of what goes on in the intelligence community. This is why Congress has oversight."
What oversight? The Executive has proclaimed the right to use any and all war powers against agents of foreign powers, and insists that neither Congress nor the courts has the constitutional right to stop or even restrict the Executive from exerting its war powers as it sees fit. Furthermore, as you've confirmed on another thread, the Executive, itself, has reserved the right to determine whether or not a U.S. citizen is an agent of a foreign power, and therefore an eligible target for the Executive's war powers (including unlimited wiretapping). And the Executive declares that Congress is outside of its powers to restrict the Executive in that particular exertion of power as well.
So what meaningful oversight is occurring at all? In fact, what "oversight" are you even referring to? The occaisional "Gang of Eight" briefings that are occurring from time to time? How can that count as oversight when the eight Congressmen briefed lack the power to impede or restrict, in any fashion, any Executive behavior (with regard to this NSA program) that they consider abusive? That's not oversight. That's not a check or a balance, bart. You must know that. It's a book report, and an ungraded one at that.
bart: "However, neither the self appointed whistleblowers nor the congressional leaders who received multiple briefings on this program have provided any evidence that any American citizen, nevertheless one without any connection to the enemy, has actually been surveilled."
A) The "congressional leaders who've received multiple briefings on this program" are forbidden by law from discussing it with anyone. Not fellow congresspeople, not their constituents, not journalists. No one. You know that, right bart? I mean, you must know that. So, given that, how are they supposed have provided evidence that any American citizen has been surveilled?
B) It's actually immaterial, at the moment, whether or not anyone has evidence that an American has been surveilled. What you've been asked, *repeatedly*, is this: Given the Executive's interpretation of its war powers, how can we be sure that the president is only spying on foreign groups or their agents? Who is to provide a meaningful check on the Executive's power, in this regard?
bart, you still--STILL--have failed to answer this question. It appears this is so, though, because there is no answer to this question, and you well know it. Given the administration's argument, NO ONE may provide a meaningful check on the Executive's power to declare *any* American citizen an enemy combatant, and therefore eligible to receive the full brunt of the Executive's war powers.
Doesn't this scare you, bart? Doesn't that much unchecked, uncheckable power in one man's hand scare you?
Doesn't that much unchecked, uncheckable power in one man's hand scare you?
ReplyDeleteBart's not scared because at the moment, the 'one man' in whose hands such power rests is on his team.
Bart's only core value is 'winning'.
Glenn,
ReplyDeleteThe House Judiciary Committee questions to the White House are non-sense. Here's a break down of the questions.
+Glen,
ReplyDeleteIn addition to your excellent framing of the issue, I suggest one additional point which, like the others you propose, should appeal across the political spectrum: trust. Our system of government was established in such a way that we do not have to blindly trust that the executive will not abuse its power. The government cannot act against a citizen in secret or without justifying its actions to the satisfaction of a court.
Under the theories advanced by the AG, anyone could be detained for years on end as long as the administration simply utters the words "national security" or "terrorist." And none of those words even have to be true because no proof or evidence would be required, and no court could grant relief. The president merely says "trust me." And since there is no formal declaration of war, the president can claim these powers for as long as the president feels this war-like state exists. Trust me. The administration has procedures in place to protect citizen's rights, but we can't tell you what they are, and they may change. Trust me.
As an American, no one should be put in the position of having to place so much trust in anyone. Under the AD's theories, a president's most vocal critics could be all locked away. The problem is, by the time that happens, the president is no longer asking us to trust him, but telling us we have no standing to challenge him.
No one knows who the president will be in 5 or 10 or 20 years. I trust know one I know with that kind of authority, much less someone I don't know.
will you take my con law exam for me?
ReplyDeleteI've lurked here for a while, reading everything, posts and comments. You, GG are a godsend. Thank you. Your voice is one that should have been heard loud and clear long before this point. Thank you for being here.
ReplyDeleteGlenn, you may have an important ally about to join the cause: hubris.
ReplyDeleteThere's a level of sheer arrogance after the wanton assertion of absolute power that is so maniacal in its dimensions that it borders on the insane. If this isn't an example that the hubris which brings all power mad delusional men down has set in, I don't know what is. The Huffington Post reports that:
" Indicted Rep. Tom DeLay, forced to step down as the No. 2 Republican in the House, scored a soft landing Wednesday as GOP leaders rewarded him with a coveted seat on the Appropriations Committee.
DeLay, R-Texas, also claimed a seat on the subcommittee overseeing the Justice Department, which is currently investigating an influence-peddling scandal involving disgraced lobbyist Jack Abramoff and his dealings with lawmakers. The subcommittee also has responsibility over
NASA — a top priority for DeLay, since the Johnson Space Center is located in his Houston-area district."
Delay appointed to the committee to oversee the Abramoff scandal? This so staggers the imagination that it is l-i-t-e-r-a-l-l-y unbelievable.
bart sez:
ReplyDeleteThese guys [al Qaeda] are not that sophisticated and many of their best people have been captured and killed.
Despite this, they do pose enough of a threat to the U.S. that we must allow our executive to undermine the founding principles of our nation and shred the Constitutional rights that thousands have died to protect.
War Is Peace
bart:
ReplyDeleteAll these SOBs needed to say to blow the program is that we had the capability to monitor their conversations by telephone and internet in and out of the United States and that this is how we stopped their Brooklyn Bridge operation and at least one other operation.
The allows al Qaeda to review the operations that were blown and tighten up their operational security to prevent similar monitoring in the future.
They also know now that we are probably not monitoring domestic conversations and that they can use these means with far less risk.
Let me get this straight. Gonzales was asked repeatedly if there was a domestic wiretap program. He said "No comment" repeatedly (in fact, he referred obliquely to other programs that he was not testifying about). And you think that now Al Qaeda members will believe we have no domestic wiretap program? And they'll charge in through the glaring loophole in our communications security by adding nationwide long distance? And you think that furthermore, the most paranoid executive branch since Nixon does not in fact wiretap domestic calls even though they have argued repeatedly that they have not one but two legal paths to pursue the war on terror in America by any means necessary? So the New York Times has harmed our national security by whistleblowing a program that even conservatarians like Fein and Norquist are calling illegal?
I hardly know which link in the chain of your righteous indignation is the weakest. You baffle me, bart. These are arguments written in sand.
Incidentally, the Brooklyn blowtorcher story is a Ken Mehlman fax. NYT reported January 17 that the NSA program did not play a significant role in his capture. So no, it's not true that "this is how we stopped their Brooklyn Bridge operation".
Thank you Mr. Greenwald for your vigilance. We should all hone your ideas down and get busy writing LTTEs.
ReplyDeleteFor the handful who claim the NYT exposed this secret program and hurt national security, I guess you missed an earlier post by Mr. Greenwald that addressed this issue. I will copy and paste what he discovered and look forward to your rebuttal.
George Bush, in 2004, telling terrorists that we are engaging in notice-less "sneak and peak" searches of their apartments - Hershey, Pennsylvania, April 19, 2004:
The Patriot Act authorizes what are called delayed notification search warrants. I'm not a lawyer, either. (Laughter.) These allow law enforcement personnel, with court approval, to carry out a lawful search without tipping off suspects and giving them a chance to flee or destroy evidence. It is an important part of conducting operations against organized groups.
George Bush, alerting terrorists to changes in our techniques for eavesdropping on their cell phone calls - Baltimore, Maryland, July 20, 2005:
Before the Patriot Act agents could use wire taps to investigate a person committing mail fraud, but not specifically to investigate a foreign terrorist carrying deadly weapons. Before the Patriot Act, investigators could follow the calls of mobsters who switched cell phones, but not terrorists who switched cell phones. That didn't make any sense. The Patriot Act ended all these double standards.
George Bush, alerting terrorists to the fact that we are eavesdropping on their telephone calls - Baltimore, Maryland, July 20, 2005:
The judicial branch has a strong oversight role in the application of the Patriot Act. Law enforcement officers need a federal judge's permission to wiretap a foreign terrorist's phone, or to track his calls, or to search his property.
George Bush, in 2004, telling terrorists that we monitor them by tracing their "money trails" - Hershey, Pennsylvania, April 19, 2004:
Before September the 11th, law enforcement could more easily obtain business and financial records of white-collar criminals than of suspected terrorists. See, part of the way to make sure that we catch terrorists is we chase money trails. And yet it was easier to chase a money trail with a white-collar criminal than it was a terrorist. The Patriot Act ended this double standard and it made it easier for investigators to catch suspected terrorists by following paper trails here in America.
George Bush, telling terrorists how the Government monitors their computer communications and obtains their e-mails - Columbus, Ohio, June 9, 2005:
Third, we need to renew the critical provisions of the Patriot Act that updated the law to meet high-tech threats like computer espionage and cyberterrorism. Before the Patriot Act, Internet providers who notified federal authorities about threatening e-mails ran the risk of getting sued. The Patriot Act modernized the law to protect Internet companies who voluntarily disclose information to save lives.
It's common sense reform, and it's delivered results. In April 2004, a man sent an e-mail to an Islamic center in El Paso, and threatened to burn the mosque to the ground in three days. Before the Patriot Act, the FBI could have spent a week or more waiting for the information they needed. Thanks to the Patriot Act, an Internet provider was able to provide the information quickly and without fear of a lawsuit -- and the FBI arrested the man before he could fulfill his -- fulfill his threat.
George Bush, detailing the threat priorities of the Homeland Security Department - Columbus, Ohio, July 20, 2005:
That's what Mike Chertoff recommended to me after the London bombings. In other words, he took a look at the situation and said, let's enhance our security and infrastructure points, and he raised the threat level.
We're widening the use of explosive detection teams and nearly doubling the number of rail security inspectors. We're targeting assets and resources to our infrastructure. We're accelerating the development and deployment of new technologies to rapidly detect biological, radiological and chemical attacks. That's what Mike announced last week. We're going to continue to make sure that we assess our weaknesses and strengthen our transportation systems.
George Bush, detailing security measures taken against threats to American seaports - Columbus, Ohio, July 20, 2005:
This is a gateway for foreign markets, which provides an opportunity and an important challenge for us. And we recognized that early. We've made dramatic advancements in port security since September the 11th. We've established strict new safety rules for both domestic and international shipping, and we have taken new steps to identify and inspect high-risk cargo. And that's important for our citizens to understand.
We launched what we call the Container Security Initiative, to screen American-bound containers at more than 35 foreign ports so we can identify dangerous cargo before it reaches our shore. Doesn't that make sense? It seems like it does to me. In other words, we're stationing Custom folks overseas and we're working with places that ship goods to us, to inspect cargo there so we don't burden our ports.
And, for good measure, here are the Editors of National Review -- before the Times ever breathed a word about the President's eavesdropping "program" -- damaging national security and helping Al Qaeda by telling terrorists that we monitor their phone calls, use roving wiretaps, examine their library records, use "sneak-and-peak" searches of their apartments, and read their e-mails. Doesn't President Bush and National Review realize that "discussing th(ese) program(s) is helping the enemy" because "the discussion about how we try to find them will enable them to adjust"?
(All links to the above quotes can be found in Mr. Greenwald's original post.)
http://glenngreenwald.blogspot.com/2005/12/why-is-bush-...
It seems pretty simple to me:
ReplyDelete1. The Bush administration has admitted to intercepting electronic communications between foreign terrorist suspects and persons located on US soil, without consulting the FISA court. (Correct me if I'm wrong, here.)
2. By federal statute, the interception of any electronic communication which a person on US soil is party to requires FISA court authorization. (The Executive is bound by this according to the Constitution, as it demands that Congress dictate the general rules of conduct for the military. It does not provide the Executive with the authority to contravene these rules.)
Therefore: The Bush administration has violated the law (and insists it will continue to do so). If this isn't grounds for impeachment and criminal prosecution, nothing is.
K.I.S.S.
I would add that it is important to point out that these powers could easily be misused by this or future Presidents. There is nothing to stop them from using these powers to spy on and blackmail political opponents, incarcerate opponents, or stifle dissent.
ReplyDeleteMany people say, "I don't care if they listen to my phone calls". How would they feel about the government listening in on the phone calls of a presidential candidate?
“But whatever arguments are selected, what matters is that there be a coordinated, comprehensive, and full-fledged campaign to persuade the public of the importance of this scandal ... by implementing a campaign designed to allow Bush opponents to control our own message and communicate directly to Americans. In my view, whether this can be accomplished will, far more than any other factor, determine whether the Administration is held accountable for their law-breaking or whether this scandal will join the countless others which meekly and inconsequentially fade away into the attention-deficit media whirlpool.”
ReplyDeleteGet ready. The frenzy has almost built to the point that the release will be offered. Something must be done! What can we do? Wait for it..... You can send money! Oh Glenn, just tell us where. We have to save America. Uh-huh.
The radical nature of the Bush position is this: As a "War President," Mr. Bush can disregard all constitutional and legal "impediments" (i.e. laws, FISA, etc.) that prevent him from "exercising all necessary and appropiate force."
ReplyDeleteThe adminsitration is contending that "all necessary and appropiate force" is anything the President decides is necessary and appropiate.
So far, this includes warrantless domestic electronic surveillance, detaining individuals indefinitely without due process, and sanctioning torture. What could be next? UAVs given free reign to conduct surveillance within our own borders; Creating watch lists based on citizens participating in wholly lawful activities such as: non-violent protesting and publicly objecting to administration policies; requiring all citizens to provide the governemnt biometric information for identification?
Superb post, which I'll most certainly be linking to tomorrow, when I'm awake.
ReplyDeleteMeanwhile, the latest revelation about the FISA court here, based on the latest WaPo piece. udge Colleen Kollar-Kotelly, Chief Judge of FISC, and her predecessor, Royce C. Lamberth, well, everyone should read the whole thing.
See also Hilzoy's excerpts of you and commentary.
So what meaningful oversight is occurring at all? In fact, what "oversight" are you even referring to? The occaisional "Gang of Eight" briefings that are occurring from time to time? How can that count as oversight when the eight Congressmen briefed lack the power to impede or restrict, in any fashion, any Executive behavior (with regard to this NSA program) that they consider abusive? That's not oversight. That's not a check or a balance, bart. You must know that. It's a book report, and an ungraded one at that.
ReplyDeletePatrick Meighan has very effectively dismissed Bart’s points about oversight on the Congressional level. It’s so strange that Bart is completely confident about what the administration did, when those in Congress with the duty of oversight don’t know what they did and are calling for an investigation.
Secondly, I noticed that Bart has not addressed any of Glenn’s questions as to why the administration supported amendments to FISA when it insists it is not bound by FISA at all.
Third, if this program is as innocuous as Bart insists, why would the judges (very conservative ones) be so wary of this program – to the point of declaring it “unconstitutional.”
“Both judges had insisted that no information obtained this way be used to gain warrants from their court, according to government sources, and both had been assured by administration officials it would never happen.
…the government's failure to share information about its spying program had rendered useless a federal screening system that the judges had insisted upon to shield the court from tainted information. He alerted Kollar-Kotelly, who complained to Justice, prompting a temporary suspension of the NSA spying program, the sources said.
Both judges expressed concern to senior officials that the president's program, if ever made public and challenged in court, ran a significant risk of being declared unconstitutional, according to sources familiar with their actions.
Finally, why are conservatives like Lindsey Graham so worried about this?
“I’ll be the first to say, when I voted for it, I never envisioned that I was giving to this president or any other president the ability to go around FISA carte blanche.”
“Taken to its logical conclusion,” he said, “it concerns me that it could basically neuter the Congress and weaken the courts.”
Those who have complete faith in Bush don’t seem to have the answers to any of these questions.
What they did in blowing this program was unforgivable and very likely a violation of the Espionage Act. If the enemy encrypts and goes underground as you suggest and then pulls off another 9/11 scale attack in secret, these SOBs have the blood of the victims on their hands.
ReplyDeleteHow about the manufacturers of encryption software? Are they equally culpable? I don't think your position has any internal consistency. I think the parallels you draw to ENIGMA are absurd. Please read some cryptographic or SIGINT history, you will find that the ENIGMA had balls-all to do with wiretapping American citizens without a warrant. It's a totally bullshit comparison. Had you bothered to read what I suggested, you would have read about Project Shamrock, the program that prompted the very institution of FISA!
Let me quote for you, since my faith in your capabilities is waning rapidly:
[...]If the resources of the NSA were ever used domestically, "no American would have any privacy left.... There would be no place to hide.... We must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is an abyss from which there is no return."
Bush's eavesdropping program was explicitly anticipated in 1978, and made illegal by FISA. There might not have been fax machines, or e-mail, or the Internet, but the NSA did the exact same thing with telegrams.
And you still don't have even a shadow of a reason why any American citizen should trust these proven liars to not trample on our rights in this context.
Did anyone see the Gonzales interview on Charlie Rose last night? Thankfully, Charlie had Lawrence Tribe of Harvard Law on afterwards to counterargue (it was about the last 15 min. of the show). Now there is a man with national recognition who can effectively and succinctly say in "plain English" exactly what is happening and what is at stake here. You are doing a great job, too, Glenn, and thanks for speaking out on this issue. Note: I think you can download the show from Google video for a nominal fee.
ReplyDeleteHypatia said:
ReplyDelete"I've watched in actual shock to see several hardcore Bush supporters actually argue that Bush's "war-time" decisions are not only unreachable by Congress, but also by the courts. One friend of mine -- a good man and a smart one -- actually told me that even if Bush is violating the law, Bush answers to a 'higher law' than Congress."
The statement that Bush's "war-time" decisions are not only unreachable by Congress, but also by the courts is in fact true, and the higher law would be Article II of the Constitution. Some war time decisions of course may be subject to review after the fact and Congress is "co-equal" with the executive and controls the purse, however under the Constitution war powers are indeed conferred exclusively to the president.
As Alexander Hamilton puts it "the exercise of power by a single hand" in describing executive war powers under the Constitution:
"Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority."
Alexander Hamilton, March 25, 1788, Federalist Papers No. 74
Liberals may not like to admit it, but surveillance is certainly part of conducting a war.
Adam said,
"Congress passed the FISA to prevent the President from spying on Americans without court approval."
This is certainly true. Nonetheless, most democrats favor surveillance of terrorists. Unfortunaely, there is a considerable gap in FISA as explained by Senator Cronyn of Texas, and Attorney General Gonzales in this exchange:
"CORNYN: Isn't it true that the problem that this program has tried to address, the gap in FISA that it tries to address, is that, in order in order to get a warrant under FISA, the government must have grounds to believe that the U.S. person it wishes to monitor is a foreign spy or terrorist?
And, even if a person is here on a student or tourist visa or no visa, the government can't get a warrant to find out whether they are a terrorist; they must already have reason to believe they are one?
GONZALES: Well, certainly, to obtain an order from the FISA Court, the court has to be satisfied that there's probable cause to believe that the target is either a foreign power or an agent of a foreign power and probable cause to believe that the facility being targeted is actually being used or about to be used by a foreign power or an agent of a foreign power.
CORNYN: Stated another way...
GONZALES: OK.
CORNYN: The problem with FISA, as written, is that the surveillance it authorizes is unusable to discover who is a terrorist, is distinct from eavesdropping on known terrorists."
Some democrats argue that the surveillance employed by the president is "illegal" under FISA, while at the same time agreeing that it is necessary and insisting that the president should not discontinue it. Go figure...
Secret Court's Judges Were Warned About NSA Spy Data
ReplyDelete"The two judges' discomfort with the NSA spying program was previously known. But this new account reveals the depth of their doubts about its legality and their behind-the-scenes efforts to protect the court from what they considered potentially tainted evidence. The new accounts also show the degree to which Baker, a top intelligence expert at Justice, shared their reservations and aided the judges."
Liberals may not like to admit it, but surveillance is certainly part of conducting a war.
ReplyDeleteRegardless of what liberals may think, us conservatives remember that we are NOT legally at war, and even if we were, the president's actions would still be in clear violation of the law.
Even if quisling anti-Constitution NeoRepublicans don't like to admit it.
Glenn makes the excellant point that outrage against the abuse of civil rights isn't just a "lefty" issue.
ReplyDeleteThis cannot be stressed enough, and I have a perfect example.
Pop quiz time. Who said the following:
"The Founders well understood the difficult tradeoff between safety and freedom...
The Founders warned us about the risk, and equipped us with a Constitution designed to deal with it....
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."
That, my friends, was Justice Antonin Scalia, less than two years ago, in his dissent in Hamdi v. Rumsfeld
The next time you are debating a Bush supporter, be sure to point this out.
Patrick Meighan said...
ReplyDeletez asks bart: "How do we know the president is only spying on foreign groups or their agents? How can we be sure?
bart responds: "You and I don't know personally. We don't know most of what goes on in the intelligence community. This is why Congress has oversight."
So what meaningful oversight is occurring at all? In fact, what "oversight" are you even referring to? The occaisional "Gang of Eight" briefings that are occurring from time to time? How can that count as oversight when the eight Congressmen briefed lack the power to impede or restrict, in any fashion, any Executive behavior (with regard to this NSA program) that they consider abusive?
That is incorrect.
1) Congress can and is currently calling anyone it wants to testify concerning this program. If the executive balks, it can subpoena and put under oath any witnesses under pain of arrest.
2) If Congress sees any genuine illegality, there is no law against making this information public. Indeed,it is my understanding that congress has personal immunity from most criminal acts performed within the scope of their duties as elected representatives.
3) Most importantly, congress holds the purse strings and can deny funding to illegal programs.
bart, you still--STILL--have failed to answer this question.
No, you just don't like the answers.
Let's post the definition of "quisling" for prunes.
ReplyDelete"A traitor who serves as the puppet of the enemy occupying his or her country."
Just to make clear, prunes, are you implying here that supporters of our president are traitors?
dan lewis said:
ReplyDeleteLet me get this straight. Gonzales was asked repeatedly if there was a domestic wiretap program. He said "No comment" repeatedly (in fact, he referred obliquely to other programs that he was not testifying about). And you think that now Al Qaeda members will believe we have no domestic wiretap program?
Good point.
You will have to ask the Senators why they asked questions about the scope of our most sensitive intelligence programs in open instead of closed session...
So the New York Times has harmed our national security by whistleblowing a program that even conservatarians like Fein and Norquist are calling illegal?
Yes, for the military reasons I gave above.
BTW, Fein and Norquist are not conservatives nor are they military experts, they are libertarians.
Incidentally, the Brooklyn blowtorcher story is a Ken Mehlman fax. NYT reported January 17 that the NSA program did not play a significant role in his capture. So no, it's not true that "this is how we stopped their Brooklyn Bridge operation".
The NYT story which blew the cover of this operation quoted an self proclaimed NSA "whistleblower" who stated that they found the Brooklyn Bridge suspect through this program.
Even the leftist media blog to which you linked only claims that "some" unnamed people involved in the case say that the lead provided by NSA wasn't the most important piece of evidence in the case.
Actually, there is no contradiction here. This NSA program is used to identify suspects. From that point on, the FBI has to develop an entire case independent of the NSA intercept whose evidence can be the basis for a search warrant and then a criminal trial. So, the NSA intelligence would not make up any of the case against the perp. However, they would not have known about the perp without it.
Just to make clear, prunes, are you implying here that supporters of our president are traitors?
ReplyDeleteI'll be clear as crystal: if you would side with the President even as he violates the Consitution and Bill of Rights, then you are a traitor. Who could possibly disagree with this?
My loyalty is to the Consitution of the United States, that Bush swore, on the Holy Bible, to uphold.
Some Americans seem to feel that the transient position of "president" is more important than the document that gives him any authority at all. He works for us.
Now, you may feel that the president has not yet violated the Bill of Rights or the Constitution. You are mistaken. That is OK. We all have been deceived by this administration. I certainly was, but "fool me twice..."
I have the utmost confidence in the American people and am certain that they will not stand for it.
How would they feel about the government listening in on the phone calls of a presidential candidate?
ReplyDeleteIt would depend on which presidential candidate. If it's their team's candidate, it's a gross Constitutional violation -- if not, not.
We're not seeing reasoned debate here -- we're seeing tribal ritual.
In discussions of the 'ticking bomb' hypotheticals, it's often suggested that the interrogator torture the suspect without legal permission, and then, if the information extracted really does help to find and defuse the bomb, the interrogator could throw himself on the mercy of the court.
ReplyDeleteIf the torture was really necessary, and the information was really essential to averting the threat, then no jury would convict.
Impeach Bush -- and try him.
If he's right, then the Senate won't convict, any more than the jury would in the hypothetical. And the issue then is closed. If the people don't like the verdict, that's why there are elections for Senate.
Jury nullification -- it's not just for trial juries any more.
Zack said...
ReplyDeleteI noticed that Bart has not addressed any of Glenn’s questions as to why the administration supported amendments to FISA when it insists it is not bound by FISA at all.
Where do you get this from?
1) Justice has bent over backwards not to get FISA declared unconstitutional by arguing that the AUMF created a narrow exception to the program so the courts don't have to address the constitutionality question.
http://news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf
2) The WP article to which you cite below describes in great detail how Justice is using the FISA court continuously to build criminal cases against terrorism suspects.
I am going to discuss the WP article in detail because it describes, albeit after playing the inuendo game about the legality of the program, how the FISA warrant process works in tandem with the NSA intelligence gathering.
prunes said...
ReplyDeleteJust to make clear, prunes, are you implying here that supporters of our president are traitors?
I'll be clear as crystal: if you would side with the President even as he violates the Consitution and Bill of Rights, then you are a traitor. Who could possibly disagree with this?
Misguided perhaps, but not traitors. Traitors give aid and comfort to an enemy of the nation.
In this controversy, it might be useful to think about who exactly is giving aid and comfort to al Qaeda...
DXM makes a good point,
ReplyDeleteHas Congress or the Supreme Court handed down a decision indicating that President Bush "broke the law", or somehow acted outside his constitutional authority?
I must have missed it...
I am glad to see the fly support my call for immediate impeachment of the president.
ReplyDeleteJustice has bent over backwards not to get FISA declared unconstitutional by arguing that the AUMF created a narrow exception to the program so the courts don't have to address the constitutionality question.
ReplyDeleteNarrow exception? Good grief, Bart, it was a total end run around FISA.
As Glenn pointed out in his post here (6:38) that they didn’t start invoking AUMF until they got caught violating FISA and needed a defense.
And that’s why Senator Spector has begun drafting legislation that would force the administration to go before FISA.
"If they say it is unconstitutional, then there ought to be a modification of it so that what the administration is doing is constitutional," Mr. Specter said of the court, in a statement on the Senate floor.
In other words, Spector isn’t buying this “narrow exception” at all precisely because it allows the administration to avoid FISA court – which is what they got caught doing.
Ahhhh...
ReplyDeleteNow that all the replies are posted, let's discuss the WP article which was published this morning, which gives us a great deal of useful detail about how the FISA court operates in tandem with the NSA data mining program. This is important stuff for those of you who a genuinely concerned about the checks and balances on this intelligence gathering.
> http://www.washingtonpost.com/wp-dyn/content/article/2006/02/08/AR2006020802511.html
Here are the pertinent portions of the article placed in chronological order for ease of understanding...
The two heads of the Foreign Intelligence Surveillance Court were the only judges in the country briefed by the administration on Bush's program. The president's secret order, issued sometime after the Sept. 11, 2001, attacks, allows the National Security Agency to monitor telephone calls and e-mails between people in the United States and contacts overseas.
Shortly after the warrantless eavesdropping program began, then-NSA Director Michael V. Hayden and Ashcroft made clear in private meetings that the president wanted to detect possible terrorist activity before another attack. They also made clear that, in such a broad hunt for suspicious patterns and activities, the government could never meet the FISA court's probable-cause requirement, government officials said.
So early in 2002, the wary court and government lawyers developed a compromise. Any case in which the government listened to someone's calls without a warrant, and later developed information to seek a FISA warrant for that same suspect, was to be carefully "tagged" as having involved some NSA information. Generally, there were fewer than 10 cases each year, the sources said.
According to government officials familiar with the program, the presiding FISA judges insisted that information obtained through NSA surveillance not form the basis for obtaining a warrant and that, instead, independently gathered information provide the justification for FISA monitoring in such cases. They also insisted that these cases be presented only to the presiding judge.
Lamberth and Kollar-Kotelly derived significant comfort from the trust they had in Baker, the government's liaison to the FISA court. He was a stickler-for-rules career lawyer steeped in foreign intelligence law, and had served as deputy director of the office before becoming the chief in 2001.
On Sept. 12, Bush asked new FBI Director Robert S. Mueller III in a Cabinet meeting whether it was safe for commercial air traffic to resume, according to senior government officials. Mueller had to acknowledge he could not give a reliable assessment.
Mueller and Justice officials went to Lamberth, who agreed that day to expedited procedures to issue FISA warrants for eavesdropping, a government official said.
The requirement for detailed paperwork was greatly eased, allowing the NSA to begin eavesdropping the next day on anyone suspected of a link to al Qaeda, every person who had ever been a member or supporter of militant Islamic groups, and everyone ever linked to a terrorist watch list in the United States or abroad, the official said.
In March 2002, the FBI and Pakistani police arrested Abu Zubaida, then the third-ranking al Qaeda operative, in Pakistan. When agents found Zubaida's laptop computer, a senior law enforcement source said, they discovered that the vast majority of people he had been communicating with were being monitored under FISA warrants or international spying efforts.
"Finally, we got some comfort" that surveillance efforts were working, said a government official familiar with Zubaida's arrest.
As I had speculated here a few days ago, the government did not believe it could get probable cause to prove that a person who spoke on a telephone number captured on al Qaeda documents or computers was necessarily an al Qaeda member or agent as required by FISA.
Contrary to what this article implies, the "reasonable suspicion" standard used to commence this surveillance (i.e. a captured telephone number) is a much lower standard of proof than the probable cause required to get a FISA warrant.
While the FISA court agreed to waive much of the paperwork requirements to request a warrant, they could not and should not have waived the probable cause requirement of both the 4th Amendment and the FISA statute.
The FISA court and government realized that you could not use evidence gained from a warrantless intelligence gathering search either as the basis for a FISA warrant or as evidence in a civilian criminal case. However, the prior case law does not keep you from identifying the identity of a criminal suspect through a warrantless search.
Therefore, the compromise at which the FISA court and Justice arrived was to require the government to submit all warrant affidavits to the judge who had been briefed on the program, to have an experienced and trusted Justice attorney well versed in the law present the affidavits, and to swear under oath that the evidence providing the probable cause for the warrant was derived from an investigation independent of the NSA intelligence gathering program.
In a nutshell, the NSA program is only used to identify probable al Qaeda members and agents and then the FBI performs a standard criminal investigation of the target to develop evidence for FISA warrants and criminal trial evidence.
The article also gives an idea of how targets are identified for NSA surveillance and how many are actually tagged for further investigation.
Apparently, the intelligence community keeps a data base of captured al Qeada phone numbers and confirms these numbers with each subsequent battlefield capture of intelligence.
Also, this program appears to generate about ten targets per year for which the FBI is able to develop probable cause to ask for a FISA warrant.
The WH is not willy nilly designating American citizens as enemy agents and the FBI and Justice are following the 4th Amendment to develop criminal cases as required by the law.
Zack said...
ReplyDeleteAs Glenn pointed out in his post here (6:38) that they didn’t start invoking AUMF until they got caught violating FISA and needed a defense.
That is a nonsensical argument...
This is a top secret need to know program. They didn't cite to anything or request any legislation for fear of exposing this program.
And that’s why Senator Spector has begun drafting legislation that would force the administration to go before FISA. In other words, Spector isn’t buying this “narrow exception” at all precisely because it allows the administration to avoid FISA court – which is what they got caught doing.
Given that the FISA review court has already tipped their hand by giving us dicta assuming that FISA does not apply to foreign intelligence gathering, do you think that maybe Mr. Specter is looking for an advisory opinion confirming the legality of the program?
anonymous said gave us the 15 second soundbite at the end of his 4:22pm comment on feb 8.
ReplyDeleteI too have not been able to understand the administrations legal defense of the domestic spying.
They claim Article II gives them the authority- then why even make the AUMF argument?
Keep up the good work Glenn.
Our congress,the president,and mainstream media have failed us.
Jerome J.Dougherty IV
jerrydougherty@hotmail.com
the fly:Has Congress or the Supreme Court handed down a decision indicating that President Bush "broke the law", or somehow acted outside his constitutional authority?
ReplyDeleteNot yet. They will, however, because it a plain fact.
bart:Misguided perhaps, but not traitors. Traitors give aid and comfort to an enemy of the nation.
In this controversy, it might be useful to think about who exactly is giving aid and comfort to al Qaeda...
Your inept innuendo makes me embarassed for you. If the president does indeed intend to subvert the Constitution, then he violating his oath and is an enemy of the nation.
What do you think about Project Shamrock, bart?
The WH is not willy nilly designating American citizens as enemy agents and the FBI and Justice are following the 4th Amendment to develop criminal cases as required by the law.
I don't see why anyone should believe this. It looks like just the contrary.
Nor do I see anywhere in the Constitution that gives the Executive the authority to determine who and who is not an "enemy agent" subject to war powers, which are in any case not in effect because we are not at war.
The administration does not have the authority to unilaterally strip citizens of their constitutional protections.
Is the administration spying on innocent American citizens?
ReplyDeleteLet's ask the Attorney General.
prunes--
ReplyDeleteYeah, we now see that this begins to slip into the other issue of the legal status of terrorist conspirators. Hamdi may be relevant to this problem in more ways than one.
bart--
You do have to admit, though, the AUMF is a bit of a red herring here. The administration doesn't think it technically needs an AUMF to engage in military action. It views things like the AUMF as just an agreement by Congress to go along with things for now. The fact that they asked for one was mostly just a politial move. (Imagine if an AUMF had not been passed. Based on the administration's arguments, they still would have found legal ground for performing this surveillance, not to mention going to war with Afghanistan--they don't think AUMFs have any real legal force. They just might have been more hesitant about the surveillance based on the political situation.) The reason why they're using the AUMF as a justification is due to the popular opinion that they are legally necessary for military action. So it's admittedly a little cynical on their part. I guess they're just trying to cover all the bases.
prunes--
ReplyDeleteMy last comment should have read "[i]accused[/i] terrorist conspirators". Specifically those who are U.S. citizens.
David Shaughnessy said...
ReplyDeleteBeing a lawyer myself (criminal appeals) I appreciate a good legal debate as much as the next guy. However, the debate over the illegality of the Administration's domestic spying is over: the conduct is illegal because it is in direct violation of FISA, a criminal statute.
As a criminal appeals lawyer, you should know better than that. I am sure you can name a series of cased where the courts have found criminal statutes to be unconstitutional and the prescribed conduct legal.
Though the legal justifications for the program propounded by the Administration are specious, lawyers can and will argue anything forever (Bart). That's why other branches of government, primarily the judiciary, must formally decide such matters.
OK.
I would note that the federal courts of appeal have already unanimously upheld the President's constitutional power to conduct this type of warrantless electronic intelligence gathering and the Supremes denied cert in every appeal from these decisions.
I have no problem with Senator Specter's bill to bring this issue before the FISA court of review, which has already indicated its position that FISA does not apply to intelligence gathering.
Indeed, the WP today reports that the FISA court told the Administration that the domestic spying program was illegal...
Feel free to cut and paste that quote. The heads of the FISA court informed of this program did not render any finding concerning the legality of the NSA program. Rather, they have been working with Justice to provide FISA warrants for targets identified under the NSA program.
Despite the cherry-picked briefing provided by the Administration...
What cherry picking is that?
...the presiding FISA court judges attempted to shield the FISA court from the contaminated evidence illegally secured by the NSA.
The courts for the past thirty years have made it clear that evidence gathered without a warrant is perfectly legal for intelligence gathering purposes, but not to support criminal search warrants and trials. The Administration has never held otherwise and worked with the FISA court to create a "chinese wall" between the two purposes.
The American body politic is strong, but this Adminsitration is a cancer, and it must be removed.
It appears that you objections have more to do with politics than the law...
prunes,
ReplyDeleteYou mention Project Shamrock. That was an international communications surveillance program employed by the military from 1945 to 1975, that remained in place unchallenged for 30 years through successive presidents including democrats.
Had that program remained in place instead of being abridged by FISA, we may have been able to learn of the 9/11 consipracy long before it actually took place.
If anything is unconstitutional, it would be FISA that ignores this prior precedent in it's attempt to abridge executive authority to use these types of programs.
It's legal, and constitutional for the president to authorize this type of surveillance for national defense. Nothing in the Constitution suggests that federal judges should be inserted into the executive's decision making process, making FISA unconstitutional.
The AUMF includes specific language authorizing the president to use all necessary and appropriate force against those he determines were involved in the 9/11 attacks, and to prevent additional attacks.
This comment has been removed by a blog administrator.
ReplyDeleteSome Guy said...
ReplyDeletebart--
You do have to admit, though, the AUMF is a bit of a red herring here.
Actually, it isn't.
When the Congress gave the President what reads as almost carte blanche authority to prosecute the war, the President would be a fool not to use that authority to the fullest extent possible.
If Congress didn't mean what it said and doesn't actually believe that the AUMF is a statute which modifies FISA, then all it has to do is vote to amend the AUMF.
One of the folks from the Powerline Blog ambushed Senator Durbin with that option at a press conference and Durbin ran away from that possibility as if a grenade had been tossed next to him...
the fly: the administration could have called FISA's constitutionality into question at any time in the courts. They chose not to do so, but they do not have the authority to simply ignore it.
ReplyDeleteYour suggestion that we could have prevented 9/11 with this program in place is laughable. This program WAS in place prior to 9/11.
It prevented nothing.
Anyone even halfway hip to the state-of-the-art in cryptography and large-scale text analysis knows that it will not prevent any such attack in the future.
You cannot possibly believe your own arguments. They are internally contradictory.
Linked and commented here, along with links and quotes from other related stories.
ReplyDeleteSee also here for related post, and here, and here, and here, and as interested. I also linked to you, Glenn, here. This is just a few posts from the past two days.
This comment has been removed by a blog administrator.
ReplyDeleteprunes said...
ReplyDeletethe fly: the administration could have called FISA's constitutionality into question at any time in the courts. They chose not to do so, but they do not have the authority to simply ignore it.
Your suggestion that we could have prevented 9/11 with this program in place is laughable. This program WAS in place prior to 9/11.
It prevented nothing.
Actually, the government started data mining back in the Clinton Administration with the Echelon and Able Danger programs.
In fact, the officers in charge of the Able Danger program have told the press that they identified the Atta 9/11 cell before the attack, but were prevented by DoD lawyers from referring this intelligence to the FBI for follow up because the DoD lawyers feared that the Able Danger program might be illegal "domestic spying."
Anyone even halfway hip to the state-of-the-art in cryptography and large-scale text analysis knows that it will not prevent any such attack in the future.
Apparently. many in al Qaeda are not "even halfway hip to the state-of-the-art in cryptography."
According to the NYT leaker who blew this program, at least two enemy ops have been prevented by this program.
According to the WP, at least ten suspected al Qaeda agents are identified each year by the NSA program and investigated by the FBI, who turns up enough evidence to seek FISA warrants to search these suspects.
ReplyDeleteActually, the government started data mining back in the Clinton Administration with the Echelon and Able Danger programs.
I am well aware of Echelon and Able Danger, which are separate concerns. (It is my understanding that Clinton exceeded his authority in this matter, but that doesn't concern us here.)
In fact, the officers in charge of the Able Danger program have told the press that they identified the Atta 9/11 cell before the attack, but were prevented by DoD lawyers from referring this intelligence to the FBI for follow up because the DoD lawyers feared that the Able Danger program might be illegal "domestic spying."
So, bart, what you are saying is that the administration failed to take measures (that were in the bounds of legality!) to prevent the 9/11 attacks because they were afraid it might look bad?
Excuse me if I don't believe it.
If it was legal, then they neglected their duty in acting on it. If it was illegal, then they should have put those misappropriated resources into some LEGAL program that might be worth a damn.
If they didn't have the authority to do anything with the info, why were they wasting taxpayer money and neglecting their real duties to gather it?
prunes,
ReplyDelete"This program WAS in place prior to 9/11"
No, the original program was not in place immediately prior to 9/11 because FISA imposed a number of impediments to surveillance from 1978 forward.
You are opining on and on here but the fact that the surveillance is military in nature seems to have escaped you. We are not talking about tracking down citizens with overdue library books.
Try reading the news occasionally. By the way, I like the BS link, very clever.
bart:
ReplyDeleteBTW, Fein and Norquist are not conservatives nor are they military experts, they are libertarians.
Give me a frigging break! Norquist was in the triumvirate with Reed and Abramoff, the money launderers who fueled DeLay's machine politics to ensure a permanent Republican majority. He's a movement conservative leader who broke with Bush on this program. In fact, the innocence with which you speak suggests to me that you aren't arguing in good faith.
As for Fein, let me say this: "'Conservative' is a magic word that applies to those who are in other conservatives' good graces. Until they aren't. At which point they are liberals." (Digby) Or libertarians, right, bart? Read more.
This WP article calls Fein a prominent conservative. It's from before the NSA story broke and Fein said Bush should be impeached. If you have evidence that Fein is not a conservative, link it.
More to the point, Fein is a constitutional scholar and lawyer. He investigated Iran-Contra in Reagan's DoJ. Norquist is well known for, among other things, trying to strengthen conservative ties to the American Muslim community. So maybe they do have some unique personal experience that means conservatives like you should listen to conservatives like them.
Even the leftist media blog to which you linked only claims that "some" unnamed people involved in the case say that the lead provided by NSA wasn't the most important piece of evidence in the case.
No, the media blog I linked to quoted Newsweek, which said "In the Brooklyn Bridge case, officials indicated that the questioning of a captured Al Qaeda leader had led to investigative breakthroughs in Ohio." At the link you'll find more information on how the NSA program did not help capture Faris (says his lawyer), nor did it help foil a fertilizer bomb plot in the UK (that was controversial PATRIOT Act provisions on library spying).
bart, you still haven't explained how the terrorists adding long distance harms our national security. You also haven't explained why you believe that the paranoids in the executive branch aren't in fact wiretapping domestically, even though they've said it's within their rights to do so. In fact, I don't see how a reasonable case can be made for either of these. You are basically arguing that we're not wiretapping and Al Qaeda is taking such advantage of it that it harms our national security. I call BS. So I don't believe your faux righteous indignation toward the NSA whistleblowers and the newspaper who published them.
You could use a good stretch reading that leftist media blog. It would enrich your understanding of rightist talking points immensely.
Until then, clap louder.
It is my understanding that the program was indeed in place, in violation of FISA.
ReplyDeleteI would appreciate being corrected with a supporting link if this is not so.
Whether the surveillance is "military" or not has no bearing on the subject of the program's legality.
Patrick Meighan: "What meaningful oversight is occurring at all? In fact, what "oversight" are you even referring to? The occaisional "Gang of Eight" briefings that are occurring from time to time? How can that count as oversight when the eight Congressmen briefed lack the power to impede or restrict, in any fashion, any Executive behavior (with regard to this NSA program) that they consider abusive?
ReplyDeletebart: "That is incorrect... Congress can and is currently calling anyone it wants to testify concerning this program. If the executive balks, it can subpoena and put under oath any witnesses under pain of arrest."
The current hearings to which you refer are not occurring because of Congressional oversight policies put into place with this NSA program. They are not occurring because the "Gang of Eight" heard something in those briefings it found troubling. You know that, bart. They're occurring only because some anonymous dude at the NSA blew the whistle to the NYT, revealing arguably-illegal features of the program that the Gang of Eight (or at least some members of it) was not informed of during these briefings you tout as "Congressional oversight." And, of course, that whistleblowing and resultant press coverage are things you've bemoaned repeatedly in other posts. Man, you're so intellectually dishonest, bart! You can't, in one post, berate a whistleblower's revelation (and the subsequent Congressional inquest) as a bug in the program, and then in another post, tout the whistleblower's revelation (and the subsequent Congressional inquest) as a comforting feature of the program!
If Congress sees any genuine illegality, there is no law against making this information public.
That's assuming Congress (or, more specifically, the hand-picked-by-the-administration's "Gang of Eight") is presented, by the Executive, with self-incriminating behavior, which:
a) the Executive has intentionally avoided doing heretofore, according to some members of the "Gang of Eight," who claim they read troubling details in the NYT story that were never presented to them during the Executive's briefings, which is not surprising, given that,
b) the Executive unilaterally decides what to present at these "briefings," the Executive considers these briefings non-compulsory and therefore can be discontinued at the Executive's discretion, and the Executive accepts no questions or cross-examination at these briefings.
That's not a check or a balance, bart. You can't claim, with a straight face, that it is.
Most importantly, congress holds the purse strings and can deny funding to illegal programs.
How does Congress go about denying funding to (what the Executive claims to be) an Executive's inherent power (that is: the right to exert any and all war powers on any American citizen that it unilaterally declares to be an agent of a foreign power)? Perhaps Congress can cut the NSA's budget, but the Executive can (and, presumably, will) carry out its self-proclaimed power through any number of Executive bureaus. Similarly, Congress can pass a law declaring that the Executive is barred from wiretapping Americans without going through certain legal channels, but it already tried that in 1978 with FISA, and we're now seeing the extent of the Executive's respect for Congress's will, in that regard.
Finally, bart, you keep defending (in many posts) this administration based on what it claims it's currently doing at the moment (as regards wiretapping in violation of FISA), and ignoring what the administration asserts is its inherent right... namely the right to exert any and all war powers (including unlimited wiretapping) on any American citizen that it unilaterally declares to be an agent of a foreign power, and that that power is utterly uncheckable by either of the two other branches of government, if the Executive at any time chooses to exert it. Your repeated response is, essentially, "Lookit' this speech... the president's saying he hasn't yet chosen to exert that uncheckable power that he happens to reserve for himself." But that doesn't answer my question of you, bart. My question to you was, and is: aren't you frightened to give one person that much uncheckable power? You still haven't answered.
prunes said...
ReplyDeletebart said: In fact, the officers in charge of the Able Danger program have told the press that they identified the Atta 9/11 cell before the attack, but were prevented by DoD lawyers from referring this intelligence to the FBI for follow up because the DoD lawyers feared that the Able Danger program might be illegal "domestic spying."
So, bart, what you are saying is that the administration failed to take measures (that were in the bounds of legality!) to prevent the 9/11 attacks because they were afraid it might look bad?
I have not seen any evidence that the results of this program were sent up the food chain to the Clinton Administration's attention, just like the FBI field reports on the air school training went nowhere.
However, from what has been made public, it looks like some DoD lawyers who were probably unaware of the program ahead of time torpedoed the results of that program out of fear of looking bad.
I'm glad you see the enormous cock-up this is, then. By engaging in such illegal surveillance, our security is greatly decreased and worthwhile investigations are impeded.
ReplyDeleteIllegal programs (or even those of merely dubious legality) can never improve security, because they immediately and unavoidably cause such conflicts.
Au contraire prunes,
ReplyDeleteAlthough the NSA may have "always existed" the president's authority over it was abridged in part by FISA. The NSA also claims it's own standing authority to conduct military surveillance for national security purposes under previous presidential NSDD's.
Everyone is screaming about President Bush as if he created the NSA, but some of the NSA surveillance in question may not have even been authorized by him.
"worthwhile investigations are impeded"
There you go again prunes,
It's military surveillance, not domestic law enforcement. If discovered here terrorists are considered enemy combatants, not criminals. Why should the government grant enemy agents the right to a civilian trial by jury?
I know the fly won't listen but...
ReplyDeleteEveryone is screaming about President Bush as if he created the NSA, but some of the NSA surveillance in question may not have even been authorized by him.
I know full well that the NSA was not created by Bush. His administration cannot simultaneously claim that these secret warrantless wiretaps are necessary and that they had no knowledge of the program.
Even they aren't that dumb, though. Only you are making that case.
Why should the government grant enemy agents the right to a civilian trial by jury?
If they are American citizens, they are guaranteed that right under the Constitution, regardless of whether or not the administration agrees. If the administration disagrees, the administration is mistaken.
If they are not citizens, they obviously receive no such protection.
Dan Lewis said...
ReplyDeletebart: BTW, Fein and Norquist are not conservatives nor are they military experts, they are libertarians.
Give me a frigging break! Norquist was in the triumvirate with Reed and Abramoff, the money launderers who fueled DeLay's machine politics to ensure a permanent Republican majority. He's a movement conservative leader who broke with Bush on this program. In fact, the innocence with which you speak suggests to me that you aren't arguing in good faith.
My friend, you don't know much about the alliance of groups who are lumped under the umbrella of the modern "conservative movement." Here is a short list of the groups, who often don't support one another's goals:
Religious conservatives - Social traditionalists, but often economic populists;
Small business, professionals and entrepreneurs - These are the guys who support libertarians like Norquist who cut taxes and Fein who oppose government regulation. However, they are often social liberals.
Soldiers, veterans and the pro military - After Vietnam, these folks migrated en masse to the Republicans. They are hawks and will support almost anything that will promote the military. They tend to be true traditionalist conservatives.
There are more groups. If you are interested, two lefty journalists from England wrote a superb book analyzing the movement called "Right Nation."
More to the point, Fein is a constitutional scholar and lawyer. He investigated Iran-Contra in Reagan's DoJ. Norquist is well known for, among other things, trying to strengthen conservative ties to the American Muslim community. So maybe they do have some unique personal experience that means conservatives like you should listen to conservatives like them
I am generally a big fan of Bruce Fein, and most libertarian ideas. However, I left the libertarian party to join the Elephants when I left college to join the military. Libertarians have a very naive view of national defense, believing that a militia is sufficient military defense and that we should extend civil liberties to foreign enemies. On this subject, Bruce and I disagree...
bart, you still haven't explained how the terrorists adding long distance harms our national security.
Huh?
You also haven't explained why you believe that the paranoids in the executive branch aren't in fact wiretapping domestically, even though they've said it's within their rights to do so.
I generally don't speculate, I deal in facts. While I enjoyed X-Files tremendously, I don't run around thinking up fascist fantasies...
If you have something concrete, I would enjoy discussing it with you.
Bart: Which amendments were those?
ReplyDeleteWell, as per Katz and the Keith case, which held that a US entity conducting electronic surveillance on a US Person in the US without a warrant violated the 4th Amendment, there's that one (The "foreign" part does not fly - the spying on a domestic person in the US by a domestic agency is domestic - the fact that the person they are spying on is making an international does not change anything - the "action" is the spying and it is domestic on the spyee and spyor ends. THere is nothing illegal about making international calls and there is much that is illegal about spying by a US agency on a US entity in the US without a warrant. Just like the fact that I may have Dijon mustard in the fridge doesn't mean that you can come into my home and seize it without a warrant bc it is "foreign" puh-leeze.)
Also, as per the Keith case - you've done a pretty good job on the First, although chilling and flash freezing are not the same.
With respect to Padilla, and as per the SUPREME COURT in Milligan, (which held that it would be Unconstitutional for a US President to require that a US alleged traitor be turned over to a military tribunal as long as they are in the US and US courts are open and operating) -- well, they specifically mention the 5th and 6th in addition to the 4th.
It's interesting that you haven't found those in your copy of the Constitution - just how short form is the ConstitutionEZ form you guys are using?
Also - now that you know the GOv fibbedto/misled Luttig; fibbedto/mislead FISA Court judges; and were warned by the FISA court judges that their program is unconstitutional and multiple members of the House and Senate intelligence committees have said that the Govt has fibbed when it said it informed "the Committees" - - and you STILL say "no one should be talking about it" well, as to who is or is not a traitor for supporting such efforts to undermine the Constitution, I won't pick a name, but several do come to mind.
And as to the hearings, despite your references to the being able to subpeona witnesses - as with Gonzales they are NOT providing information in those hearing (I can't answer ... on a loop). Interestingly - you leap whole heartedly to the defense and refer to it (as if you KNOW what they are doing) over and over as data mining - whereas Hayden has said it is NOT a data mining program.
Calling him a liar?
Misled?
Misinformed?
Misdirected?
Pick your poisen from above bart, but you are the blind man saying the elephant is not that big a deal bc you happen to be holding its tail and you think you know what you need to know.
Re: Al-Qaeda, what planet are you living on to think they do not know about their calls? What is being done with their calls has been openly discussed forever. Actually - the AG is saying that, under their *program* every interception would "qualify" for a FISA warrant (and the FISA statutes are public record fergoshsakes) but that we simply are not getting those warrants.
AG says paperwork is hard and it would take too much time - Hayden said paperwork had nothing to do with it and that no one minds doing paperwork --- otoh, Hayden also said there was no warrant clause or probable cause requirement AND Hayden testified to Congress at the Joint Inquiry that he was doing things just the way he had been before, so he kinda fibbed in his for the record statements to Congress, so I'm not sure about sourcing.
In any event, I'd be perfectly happy for the program to not be discussed in Congress all that much and you know what - it is really easy to keep it "secret".
That route is called "following the law and using the secret court to get secret warrants".
WOW - what a concept. But when your President chooses to break the law and violate his oath to uphold and violate the Constitution - then that is not really something I AM happy to have kept secret. If you like that concept, I'm sure there are plenty of places you can move that fully endorse it. It has not been the US in the past, but hey - you guys have sure managed to make this place more and more like what Milligan warned against.
Secret programs can be kept secret by following the rules.
Break the law and sure - that is and should be made public.
Al-Qaeda hasn't learned anything it didn't already know - heck, it already knew how willing our President is to break the law - it uses that info for recruiting.
WHat HAS happened is that the telecoms that have been cooperating with the AG are now going to be in a squeeze. They don't have a court order. They "may" have the Certifications from the AG that are a way in which they can avoid liability, except that theose Certifications have to include the representations that no warrant is required under the statute - hmmmm. With the revelations and even the FISA judges saying the program doesn't pass Constitutional muster, those Telecoms are going to get edgy that, if they have actual notice that the AG's certifcation may be incorrect, they may lose protection from suit --- IMO, that is and has become the issue.
Telecom nervousness about being lawbreakers and being open to suit - not worry that al-Qaeda is just realizing its calls might be monitored.
Patrick Meighan said...
ReplyDeletePatrick Meighan: "What meaningful oversight is occurring at all? In fact, what "oversight" are you even referring to? The occaisional "Gang of Eight" briefings that are occurring from time to time? How can that count as oversight when the eight Congressmen briefed lack the power to impede or restrict, in any fashion, any Executive behavior (with regard to this NSA program) that they consider abusive?
bart: "That is incorrect... Congress can and is currently calling anyone it wants to testify concerning this program. If the executive balks, it can subpoena and put under oath any witnesses under pain of arrest."
Patrick Meighan: The current hearings to which you refer are not occurring because of Congressional oversight policies put into place with this NSA program.
I agree. Congressional oversight is a constitutional power which long predated this program. The intelligence committees have been in place for decades just for this purpose.
They are not occurring because the "Gang of Eight" heard something in those briefings it found troubling. You know that, bart.
I completely agree. The heads of both houses and their respective intelligence committees didn't object to the legality or attempt to conduct any further investigation.
They're occurring only because some anonymous dude at the NSA blew the whistle to the NYT, revealing arguably-illegal features of the program that the Gang of Eight (or at least some members of it) was not informed of during these briefings you tout as "Congressional oversight."
What weren't the Gang of Eight told about the program which would have changed their views?
What caused the current hearings was dealing with the political fallout, primarily from the Democrat base.
And, of course, that whistleblowing and resultant press coverage are things you've bemoaned repeatedly in other posts. Man, you're so intellectually dishonest, bart! You can't, in one post, berate a whistleblower's revelation (and the subsequent Congressional inquest) as a bug in the program, and then in another post, tout the whistleblower's revelation (and the subsequent Congressional inquest) as a comforting feature of the program!
:::sigh:::
Let's try this one more time...
Is an employee of an intelligence agency actually believes that he or she has witnessed something illegal, they are supposed to go to the inspector general for their agency. If they are afraid of department retaliation, they can go to the Justice Department. If they are afraid of the entire executive branch, they can go to the congressional intelligence committees.
I fully encourage this. I don't trust the government to do the right thing in private.
However, what you do not do is blow the cover of a top secret program to the enemy targeted by that program by going public until you have at the very least gone through the other steps I discussed above.
In this case, the FIRST place this NSA leaker went was the NYT.
This applies equally to the press. If some intelligence agency member comes to them with something this sensitive, they better check with the WH, the agency and the Congressional committees and be damn sure it isn't being addressed there.
The Espionage Act was passed precisely to stop leaks of secret information for political reasons or for policy disagreements. Justice should be looking at prosecuting the NSA leaker as well as Risen and the NYT editors under this act. What they have done is reprehensible and incredibly damaging to our national security.
If Congress sees any genuine illegality, there is no law against making this information public.
That's assuming Congress (or, more specifically, the hand-picked-by-the-administration's "Gang of Eight") is presented, by the Executive, with self-incriminating behavior
In this case, we are having additional hearings because of this self described whistleblower. He could and should have gone directly to congress without compromising the program.
Most importantly, congress holds the purse strings and can deny funding to illegal programs.
How does Congress go about denying funding to (what the Executive claims to be) an Executive's inherent power (that is: the right to exert any and all war powers on any American citizen that it unilaterally declares to be an agent of a foreign power)?
C'mon now...
Congress can easily cut finding for this subprogram of the NSA through a line item.
As for this bilge about declaring war on innocent American citizens, provide one scintilla of actual evidence that this is the case and the Congress can impeach the President.
Stop claiming that I have defended anything of the sort.
prunes,
ReplyDeleteYou don't seem to get my point. I am not implying that President Bush was unaware of the NSA.
The point is that immediately following 9/11, and prior to the adminstration authorizing warrant less surveillance, the NSA itself, if it were doing it's job, should have commenced comprehensive domestic surveillance under it's own standing authority in an effort to catch the 9/11 conspirators.
Again, the NSA may have been acting justifiably under it's own standing authority in the weeks after 9/11.
"warned by the FISA court judges that their program is unconstitutional"
Anonymous, how about posting a link to back up this claim?
Anonymous said...
ReplyDeleteBart: Which amendments were those?
Well, as per Katz and the Keith case, which held that a US entity conducting electronic surveillance on a US Person in the US without a warrant violated the 4th Amendment
Those cases covered internal communications within the United States. The Supremes in Kieth expressly declined to rule on foreign communications. However, that same group of Supremes declined to review the appeals on any of the decisions by the courts of appeal holding that the 4th Amendment does not apply to electronic surveillance of foreign groups and their agents.
With respect to Padilla, and as per the SUPREME COURT in Milligan, (which held that it would be Unconstitutional for a US President to require that a US alleged traitor be turned over to a military tribunal as long as they are in the US and US courts are open and operating) -- well, they specifically mention the 5th and 6th in addition to the 4th.
We tried American citizens along side their German compatriots in a military tribunal during WWII.
The point is that immediately following 9/11, and prior to the adminstration authorizing warrant less surveillance, the NSA itself, if it were doing it's job, should have commenced comprehensive domestic surveillance under it's own standing authority in an effort to catch the 9/11 conspirators.
ReplyDeleteAgain, the NSA may have been acting justifiably under it's own standing authority in the weeks after 9/11.
Ok... let me see if I understand you...
The NSA might have been operating the program under their own authority prior to 9/11, but after the AUMF, the program came under the administration's jurisdiction?
And then the adminstration (ignoring the legality of this for the moment) tried to reform the program to a degree to avoid a similar situation?
Is that roughly your interpretation?
We tried American citizens along side their German compatriots in a military tribunal during WWII.
We also put Japanese American citizens into internment camps during WWII.
Mr. Greenwald,
ReplyDeleteWell presented argument. The American public needs to know the truth about the "war powers" assumed by the President. I submit the following: For over 200 years Americans have fought and died to protect and defend the Constitution. This President dishonors their memory by taking actions that are both illegal and unconstitutional. Like Nixon, he is not above the law.
bart--
ReplyDelete"When the Congress gave the President what reads as almost carte blanche authority to prosecute the war, the President would be a fool not to use that authority to the fullest extent possible."
Heh--alright, let's just say that the AUMF argument isn't one the administration believes in--they're only raising it because Congress thinks that such athorizations are necessary.
But I suppose it's possible such authorizations create a kind of legal middle ground, between a state of (undeclared) war with congressional oversight (no authorization), and a state of (still technically undeclared) war without one (authorized). Though my gut reaction to this is skepticism.
"If Congress didn't mean what it said and doesn't actually believe that the AUMF is a statute which modifies FISA, then all it has to do is vote to amend the AUMF."
Like I say, I don't think the argument that the AUMF modifies FISA is a good one--that is, it just begs the question: what _are_ the presidential war powers?
Bart, the Commander-in-Chief authority granted in Article II MUST be considered subordinate to the military oversight demanded of Congress in Article I, or the whole thing doesn't make any sense. The only way FISA could be found unconstitutional is if it substantially weakens 4th amendment rights, NOT if it constrains Executive authority. So, if FISA violates the 4th amendment, the Bush administration's actions most certainly do as well. It's a catch 22 for the administration, which is the real reason they chose not to risk a constitutional review of FISA.
ReplyDeleteAs for the AUMF, it does not explicitly contravene FISA, so FISA stands. You may as well argue that the AUMF supercedes the UCMJ, as well. (Or is the UCMJ unconstitutional, too? Hint: no, it isn't.)
And stop conflating gathered information with intercepted communication; they're not the same thing. The whole "information gathering" thing just begs for a closer examination for civil rights violations, anyway.
-----
And has anyone else noticed how Gonzalez more closely resembles a criminal defense attorney than the Attorney General of the United States?
uberpatriot said...
ReplyDeleteBart, the Commander-in-Chief authority granted in Article II MUST be considered subordinate to the military oversight demanded of Congress in Article I, or the whole thing doesn't make any sense.
Ummm... How do you figure?
If the drafters of the Constitution meant Congress' power to regulate the military to include the power to make command decisions, it would not have made the President Commander in Chief.
As for the AUMF, it does not explicitly contravene FISA, so FISA stands.
Why would it need to?
When Congress essentially gives the President permission to do virtually anything he wants to prosecute the war (read the text) and FISA expressly states that it can be modified by later statutes, how can FISA not be modified by the AUMF to the extent that FISA touches upon a recognized incident of war like gathering intelligence on the enemy?
I would never allow a client of my law practice to agree to contract language like what is in the AUMF. That language is about as expansive as its gets...
Once again, all Congress needs to do is pass an amendment to the AUMF if it actually did not mean to bypass FISA.
You may as well argue that the AUMF supercedes the UCMJ, as well. (Or is the UCMJ unconstitutional, too? Hint: no, it isn't.)
The UCMJ was enacted pursuant to Congress' power to regulate the military and is a prime example of what is meant by that clause. I don't believe Congress can give away its own constitutional authority by enacting the AUMF any more than they can limit or eliminate the President's authority by enacting FISA.
If the drafters of the Constitution meant Congress' power to regulate the military to include the power to make command decisions, it would not have made the President Commander in Chief.
ReplyDeleteThe Constitution grants Congress the authority to regulate the military. “Command decisions” may not contravene those regulations, lest they violate Congress’ constitutional authority. A Commander in Chief with supreme authority is antithetical to the principals of the Constitution.
When Congress essentially gives the President permission to do virtually anything he wants to prosecute the war (read the text) and FISA expressly states that it can be modified by later statutes, how can FISA not be modified by the AUMF to the extent that FISA touches upon a recognized incident of war like gathering intelligence on the enemy?
I would never allow a client of my law practice to agree to contract language like what is in the AUMF. That language is about as expansive as its gets...
The AUMF did not expressly modify any provision of FISA. The AUMF did not say the President could circumvent any prevailing law. Contracts are subject to prevailing law regardless of what is stated in the contract.
The UCMJ was enacted pursuant to Congress' power to regulate the military and is a prime example of what is meant by that clause. I don't believe Congress can give away its own constitutional authority by enacting the AUMF any more than they can limit or eliminate the President's authority by enacting FISA.
Both the UCMJ and FISA put constraints on the way the military can conduct itself (intelligence gathering must be considered a military endeavor, or else the President would have no authority over it). Both were enacted by Congress per its constitutional authority, and both are constitutional with regard to Presidential authority. The President’s authority must have limits, or we have not a democratic republic, but a dictatorship.
Despite being Commander in Chief, the President is first and foremost a citizen of the United States and as such is subject to the law. He was not given express legal authority to contravene FISA, and yet he did. He violated the law.
That should be principles of the Constituion in my first paragraph, not principals. Oops.
ReplyDeletebart sez: "If an employee of an intelligence agency actually believes that he or she has witnessed something illegal, they are supposed to go to the inspector general for their agency. If they are afraid of department retaliation, they can go to the Justice Department. If they are afraid of the entire executive branch, they can go to the congressional intelligence committees. I fully encourage this. I don't trust the government to do the right thing in private... As for this bilge about declaring war on innocent American citizens, provide one scintilla of actual evidence that this is the case and the Congress can impeach the President."
ReplyDeleteOkay, FINALLY you provide some sort of actual coherent plan for a check-and-balance to restrain the Executive from unilaterally declaring an innocent American to be an agent of a foreign power, eligible for unlimited wiretapping. If I understand, your check-and-balance goes like this:
Any employee of the Executive Branch who happens to feel that his employer (which is to say, the President) has targeted an innocent American for wiretapping (or worse) may feel free to provide Congress with evidence of such. And if Congress agrees with that disloyal employee of the Executive, it can then take the step of impeaching the President of the United States.
Okay. I understand the process, but I would say that a check-and-balance that depends upon the Executive Branch (or an employee of same) turning itself in to the Legislative Branch, accusing itself of high crimes against the nation is not a check-and-balance at all. Especially if the Legislative Branch itself has absolutely no ability to restrain the Executive from repeating the crime, short of enacting the nearly-unprecedented step of impeaching the President of the United States.
[Yes, the Congress can defund a specific program like the NSA, bart. But, no, Congress can't defund a war power the Executive claims as its inherent uncheckable prerogative, and can execute from any one of a number of different Executive departments: Justice, Defense, the Treasury, Homeland Security, to name four].
So, bart, what if the President is able to maintain loyalty from his employees within the Executive Branch? Where's your check-and-balance, then? In that case, we're all S.O.L., right?
It's amazing to me just how far out some of these comments are. The Constitution is not very difficult to understand, yet people manage to get completely off track.
ReplyDeleteTo begin with, Congress and the Judiciary are not part of the Executive branch. The Constitution does not contemplate having Congress appoint a panel of Federal Court Judges to review Executive decisions.
FISA is an unconstitutional attempt to tamper with the prescribed roles of the three branches of government. The framers would no doubt be very concerned with the meddling of Congress in this regard.
What does the Executive execute? The laws passed by Congress. The balance of power lies with Congress as proxy for the American people. The President is a civil servant beholden to the citizens of the United States, and sworn to uphold the Constitution. The framers of the Constitution would be very concerned indeed with the dictatorial power the current administration has reserved for itself, as they had just rebelled against a monarchy. The framers tried to ensure that no one branch of government had unchecked power – why would they invest any such power with the President? They wouldn’t. FISA is a regulation established by Congress per its constitutional authority, which governs an aspect of military operation. The Commander in Chief has the authority to command the military, but only within the confines of the law. Why is that so difficult for some people to understand?
ReplyDeleteuberpatriot said...
ReplyDeleteBart: If the drafters of the Constitution meant Congress' power to regulate the military to include the power to make command decisions, it would not have made the President Commander in Chief.
uber: The Constitution grants Congress the authority to regulate the military. “Command decisions” may not contravene those regulations, lest they violate Congress’ constitutional authority. A Commander in Chief with supreme authority is antithetical to the principals of the Constitution.
OK, let's think about the implications of that argument for a moment...
In a nutshell, you have said that Congress may eliminate take for itself the President's constitutional authority as Commander in Chief by passing a statute.
Let's apply the FISA format to other traditional roles of the CiC. Under your theory, Congress could enact a statute which requires the President to get court approval for operational plans, what targets to bomb, supply plans, the choice of units to deploy, what nations and groups to direct our intelligence assets against, what diplomatic strategies to deploy...
Are you seeing how unrealistic is this theory of absolute congressional supremacy?
anonymous says: So, bart, what if the President is able to maintain loyalty from his employees within the Executive Branch? Where's your check-and-balance, then? In that case, we're all S.O.L., right?
ReplyDeleteI might take this possibility seriously if you can show me a leak free presidency.
However, for the sake of argument, let's assume this absolute obedience....
In that case, how would FISA or any statute passed by Congress have any more affect than their actual oversight powers?
uberpatriot,
ReplyDeleteThe president's Oath of Office.
I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States.
Your narrow view that the president executes only the laws passed by Congress doesn't begin to reflect the power of the executive.
FISA, the Foreign Intelligence Surveillance Act, primarily deals with Foreign Intelligence. What about foreign affairs? Why is it that Congress doesn't attend summit meetings with Putin then?
Evidently you are not aware that Congress cannot enact laws without the presidents signature. How do you explain that? And what are you going to say if the Supreme Court strikes FISA down as unconstitutional?
FISA is an unconstitutional attempt to tamper with the prescribed roles of the three branches of government. The framers would no doubt be very concerned with the meddling of Congress in this regard.
ReplyDeleteIf that is indeed the case, the executive branch IS REQUIRED to first contest the legislation in court. They are not allowed to simply ignore it, which is the whole issue here.
The president MUST operate through the system of checks and balances defined in the constitution. He does not have the authority to determine which laws do and do not apply to him. That is the perogative of the Judicial branch.
Let's apply the FISA format to other traditional roles of the CiC. Under your theory, Congress could enact a statute which requires the President to get court approval for operational plans, what targets to bomb, supply plans, the choice of units to deploy, what nations and groups to direct our intelligence assets against, what diplomatic strategies to deploy...
Are you seeing how unrealistic is this theory of absolute congressional supremacy?
It is not unrealistic. It is the law.
If Congress passed such legislation, and the President signed it, he would clearly be constrained in that manner. If the President vetoed it, but it was pushed through by a supermajority in Congress, the President would be constrained in that manner. If the President took it to the Supreme Court and they found the law to be constitutional, the President would be constrained in that manner.
There is nothing special about the military that exempts it from being affected by the checks and balances enumerated in the Constitution.
And what are you going to say if the Supreme Court strikes FISA down as unconstitutional?
If that happens, then the President is free to ignore FISA. Until that happens the President is not free to ignore FISA.
Prunes,
ReplyDeleteI guess I should have made my comments more specific for you. FISA is in part constitutional, but only if you are applying it to surveillance of US persons during peacetime.
However, if you are applying FISA to NSA surveillance of agents of a foreign power during a time of war, then the warrant requirement is clearly unconstitutional.
Congress does not have constitutional authority to appoint federal judges to approve military surveillance decisions made under the president's war powers.
If Congress had such constitutional authority, what would stop them from appointing federal judges to review every executive decision before it's carried out?
With the present circumstance, while the administration can use FISA as a domestic law enforcement tool, national defense obviously requires more.
I don't disagree with the importance of privacy and warrants for domestic law enforcement mind you, but there are larger military concerns after an event such as Pearl Harbor or 9/11.
However, if you are applying FISA to NSA surveillance of agents of a foreign power during a time of war, then the warrant requirement is clearly unconstitutional.
ReplyDeleteThere is absolutely nothing in the Consitution that makes this so.
Even in wartime, the President MUST FIRST contest any such legislation in court. There is NOTHING in the Constitution that gives the President the authority to simply ignore such legislation.
If Congress had such constitutional authority, what would stop them from appointing federal judges to review every executive decision before it's carried out?
Absolutely nothing, if said law was signed by the President, or passed with a super-majority, and found legal by the Supreme Court. It would not even require a Consititutional amendment.
But of course, there is no such legislation on the table.
With the present circumstance, while the administration can use FISA as a domestic law enforcement tool, national defense obviously requires more.
I don't disagree with the importance of privacy and warrants for domestic law enforcement mind you, but there are larger military concerns after an event such as Pearl Harbor or 9/11.
There is no circumstance that allows the president to ignore the law. If the president believes a law to be unconstitutionally restricting his actions, he MUST FIRST challenge it in court.
Congress acted outside it's authority when it created FISA, and the president cannot be expected to sit on his hands waiting for a Supreme Court decision confirming his constitutional role.
ReplyDeleteChief Justice Marshall, 1803:
“a legislative act contrary to the constitution is not law.”
"'If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.' -- To declare otherwise, Chief Justice Marshall said, would be to permit a legislative body to pass at pleasure the limits imposed on its powers by the Constitution."
"Finally, the Chief Justice noticed the supremacy clause, which gave the Constitution precedence over laws and treaties and provided that only laws “which shall be made in pursuance of the constitution” are to be the supreme laws of the land."
Marbury v. Madison.
Every single quote you made has been greatly affected by later rulings, but, setting that aside, please note that Marbury v. Madison was a case brought before the Supreme Court to settle a Constitutional issue.
ReplyDeleteAnd that is exactly what the President must do. There is no precedent whatsoever for the President to determine which laws do or do not apply to him. That is the Judiciary's perogative.
Congress acted outside it's authority when it created FISA, and the president cannot be expected to sit on his hands waiting for a Supreme Court decision confirming his constitutional role.
He certainly can. In fact, he must. If you think otherwise, you are mistaken.
I know you don't like it, the fly, but there are reasons for these checks and balances.
the fly, also consider this:
ReplyDeleteOfficial actions taken that are contrary to the Constitution are unConstitutional.
There is nothing in the Constitution that allows the President to determine what is Constitutional.
Therefore, if the President officially interprets the Constitution as giving him the perogative to determine what is Constitutional and what is not, that in itself is an unConstitutional action.
"There is no precedent whatsoever for the President to determine which laws do or do not apply to him."
ReplyDeleteI don't know why this is so difficult, but the Constitution is the controlling law here, because we are talking about military surveillance, i.e. national defense.
The FISA court itself has already decided, based on prior Supreme Court precedence, that the president's constitutional war powers cannot be abridged by FISA.
prunes said: "Every single quote you made has been greatly affected by later rulings"
From the same website:
"The decision in Marbury v. Madison has never been disturbed, although it has been criticized and has had opponents throughout our history."
Cornell University comments (above) that this ruling has never been disturbed. Are they wrong? If so, what rulings contradict Chief Justice Marshall?
Jesus Christ. I didn't mean that Marbury v. Madison had been overturned, but that the excerpts you are trying to use as evidence cannot be interpreted in the way that you want.
ReplyDeleteThere is no point in pushing this any further with you.
I don't know why this is so difficult, but the Constitution is the controlling law here, because we are talking about military surveillance, i.e. national defense.
Yes, the Constitution is the controlling law, and the Constitution does not allow the President to make the determination of what is legal and not legal for him to do. That is why he must take it to court if he disagrees.
I can't put it into any smaller words than that.
"the Constitution does not allow the President to make the determination of what is legal and not legal for him to do"
ReplyDeleteI see, so even though the president has veto power over new legislation, he does not have the authority to interpret any existing law or the US Constitution in considering his own actions.
Sure, that makes sense.
I see, so even though the president has veto power over new legislation, he does not have the authority to interpret any existing law or the US Constitution in considering his own actions.
ReplyDeleteSure, that makes sense.
Indeed it does. He has the authority to veto legislation, but he does not have the authority to decide not to follow legislation that has already been passed.
I'm glad you are finally following the argument, I was beginning to worry.
If it helps, another way it could be put is that the President has veto power, but he does not have retroactive veto power.
ReplyDeleteHe cannot choose to ignore legislation passed by previous presidents.
Would you really want to live in a country where the Executive could murder with impunity, based on its private view of necessity, in a “war” on terrorism? That pretty much describes a South American junta, not the United States I thought I was living in.
ReplyDeleteWhether at peace or war, the Gonzales legal scenario is pretty horrific. That it is put forward as valid by the man who is THE U.S. ATTORNEY GENERAL is factually horrific, whether they’ve based actions on it, or otherwise.
Some of these “war on terror” guys are old South American hands, coincidentally. John Negroponte, Director of National Intelligence, for instance, who never knew anything about any death squads in Honduras, the whole time he was stationed there in the eighties.
By advancing such a legal reading before a Senate committee, does this not also suggest a pregnant need for a very broad cover? Given how shocking a theory it is, and how little we really know about the one specific program they were supposedly there to justify, they may well have much more serious ugliness hidden away elsewhere.
– After all, it’s not as though amending FISA to make reasonable accommodation for newer methodologies is somehow beyond the political pale. –
They may be scared enough at OTHER consequences to be searching for an out – “we were acting in GOOD FAITH. We thought it was LEGAL because we are AT WAR, and at war, EVERYTHING we do is legal.”
In which case, the most unconscionable thing the Congress or the Courts could do is let them have a free pass.
Or they may simply be drunk with their own imagined powers – with, or without, some yet-to-be-revealed atrocities lurking in the attic.
Let’s hope it’s the latter, and hope the Senate and House put the brakes on, before some of “these guys” work up the nerve to go native at home.
the fly--
ReplyDeleteYou said:
"FISA is in part constitutional, but only if you are applying it to surveillance of US persons during peacetime.
However, if you are applying FISA to NSA surveillance of agents of a foreign power during a time of war, then the warrant requirement is clearly unconstitutional."
I don't see why. This does appear to be Gonzales' argument. But why would FISA be constitutional during peacetime, yet suddenly no longer apply during wartime? What has changed? Has the president's authority to engage in surveillance for foreign intelligence purposes suddenly changed?
Regarding the approval of courts, I agree that if the warrants are supposed to somehow approve executive foreign intelligence gathering authority, it seems problematic, and possibly unconstitutional. However...I think there might be an out for Congress, if the warrants are viewed as tools for potentially gathering criminal evidence. If the surveillance is of a U.S. person, then U.S. laws may be relevant to the intelligence gathered. Congress has an interest in protecting Fourth Amendment rights and the rights of due process and so forth, and so a warrant (maybe) seems appropriate. That might be Congress' best defense here. For some reason FISA felt that conspiracy with terrorists merited more protection than conspiracy with foreign governments. Don't ask me why, but for better or worse, that's what it did.
3 places to go for excellent explications of why the President's NSA Surveillance actions are unlawful: www.volokh.com (any number of posts from Orin Kerr), a number of Glenn's posts here, and yesterday's Wall Street Journal opinion page. It's illegal, and there's a reason the Administration is avoiding having its legal arguments to the contrary tested in the courts: they don't believe them either.
ReplyDelete