(1) This article by Sheryl Gay Stolberg in today's New York Times details what appears to be, at least for the moment, substantive conflict between the White House and its normally reliable Congressional servant Pat Roberts. According to Stolberg, Roberts opposes the DeWine proposal to simply exempt the whole warrantless NSA program from the requirements of FISA (what David Shaughnessy refers to as the "Nixon law," predicated, as it is, on the noxious premise that the law should always conform to the President's conduct so as to render legal whatever it is that he does).
One of the brilliant insights of the Founders was their recognition that human begins think and act tribally, almost on an inextinguishably instinctive level. For that reason, institutional pride and personal dignity will eventually come to outweigh ideology or partisan allegiance, such that judges will fight for judicial power, those in Congress will fight for Congressional power, and the President will fight for Executive power. This self-interested, tripartite struggle will lead to ever-shifting power centers but will always maintain some semblance of a balance of power in our government.
That balance-maintaining system has broken down over the last several years because the 9/11 attacks created a war climate in this country which the Bush Administration deftly and cynically exploited in order to install theories of unchecked Executive power which long pre-dated 9/11. And the fact that the Congress was controlled for most of that time by the President's own party -- and the media was scared into uncritical support for the Protector-President -- created a situation where there was little, if any, resistance to those power-grabbing schemes.
But people can be publicly emasculated and humiliated only for so long. Even the most obsequious mice among us, such as Pat Roberts, at some point want to at least appear to have some minimal amounts of personal autonomy. I don't think that Pat Roberts will ultimately act with any integrity. He won't. But the fact that he's bucking and kicking just a little bit demonstrates, again, that this scandal implicates so many profound and central questions for our political system that it is not something that can be or will be swept neatly under the rug. According to the Times:
The chairman of the Senate Intelligence Committee said Friday that he wanted the Bush administration's domestic eavesdropping program brought under the authority of a special intelligence court, a move President Bush has argued is not necessary. . . .
Mr. Roberts also said he did not believe that exempting the program from the purview of the court created by the Foreign Intelligence Surveillance Act "would be met with much support" on Capitol Hill. Yet that is exactly the approach the Bush administration is pursuing.
"I think it should come before the FISA court, but I don't know how it works," Mr. Roberts said. "You don't want to have a situation where you have capability that doesn't work well with the FISA court, in terms of speed and agility and hot pursuit. So we have to solve that problem."
This is not an easy-to-resolve problem. The White House is not going to accept a framework where all of their eavesdropping activities have to stay within the oversight of the FISA court. After all, they bypassed FISA in the first place precisely because -- for whatever reasons -- they wanted to eavesdrop on Americans with no oversight. And yet, it is difficult to imagine that even this Congress, having caught the Administration eavesdropping in flagrant and defiant violation of their law, will simply give them legal sanction to continue to do so. Arlen Specter and Roberts have now both said they oppose such a measure.
None of this by itself portends an apocalypse for the Administration. But it is another small fire that has broken out. And if even Pat Roberts is starting fires now on this issue, it's hard to imagine more compelling evidence that this scandal is still in the growth process, not in the process of being killed off quietly. And Bush opponents should do what they can to exacerbate these tensions and add fuel to these fires.
(2) I have to give credit where it's due. In response to my post yesterday pointing out the glaring error made by Captain Ed in claiming that FISA was intended to regulate only peacetime surveillance (even though the statute contains an express provision regulating eavesdropping during wartime), the Captain added an update to his post containing a commendably clear admission of error:
UPDATE: Glenn Greenwald rebuts me, and rather effectively at least on the text of FISA. No doubt Congress did intend to stake out territory in wartime surveillance.
However, it's telling that even the Democratic administrations of Carter and Bill Clinton didn't think it applied (Jamie Gorelick argued that international surveillance did not fall under FISA either), and courts have ruled in that direction. But Glenn's right in that Congress clearly intended this to apply to wartime as well.
The bit about how the Carter and Clinton administrations "didn't think it applied" is rather incoherent (I have no idea what that means), and the notion that "courts have ruled in that direction" is simply wrong, but he did acknowledge that the statute, contrary to his original claim, was clearly intended to regulate surveillance on Americans both during peacetime and during war. If more people were willing to simply acknowledge analytical and factual mistakes that way, political dialogue would be much more constructive.
I think Pat Roberts heard the talk about how he was bullied like a little bitch into cancelling the hearings he promised by Big Bad Dick Cheney's commands. Nobody likes to be depicted that way, and I think you're right that this caused him to oppose the DeWine nonsense.
ReplyDeleteHe's now on record as opposing eavesdropping without judicial approval. So is Specter. The WH will never accepted judicial oversight. Let's see if they can fix this skirmish.
Glenn Greenwald writes:
ReplyDeleteThis is not an easy-to-resolve problem. The White House is not going to accept a framework where all of their eavesdropping activities have to stay within the oversight of the FISA court. After all, they bypassed FISA in the first place precisely because -- for whatever reasons -- they wanted to eavesdrop on Americans with no oversight.
Interesting question. Why do you believe the Bush Administration decided the FISA statute did not apply in cases where telecommunications took place between al Qaeda suspects overseas and their American correspondents? Do you believe it took place simply because president Bush is mad for power? Because he wants to destroy the constitution?
You've spent a couple weeks and countless words blaring the trumpet of alarm over this issue without actually eludicating exactly why you believe Bush authorized these actions. You've implied he's done so out of some as-yet-undefined (but venal) motives, but as yet we haven't heard what they are.
Why, exactly, do you think Bush is exercising his presidential authority to conduct warrantless monitoring of communications between al Qaeda operatives overseas and their American-base correspondents?
I really need someone with legal background to respond to Alex in this post.
ReplyDeletePlease help if you can.
http://www.progressiveu.org/175545-samuel-alito-on-the-bench-whose-influence-will-he-surround-himself-with
Hope you don't mind, Glenn. I changed my pants from green to blue today.
ReplyDeleteKeep the faith, buddy. Keep spittin' truth to power.
Why did Bush choose to break the law? Figuring out his motives is a difficult task requiring long research, but from what we know now, his explanations lack merit.
ReplyDeleteSo we're left to speculate. And based on Bush's modus operandi, I think he did it because he simply wanted to, and thought he could do.
Bush has long appeared to steer an independent course, but his behaviors mirror those of a rich kid used to getting his way without regard to anything but his own whim.
So he didn't need to run illegal wiretaps. He simply wanted to.
In response to Gedaliya who wrote:
ReplyDelete"You've implied he's done so out of some as-yet-undefined (but venal) motives, but as yet we haven't heard what they are."
I don't "think" the members of Congress or Mr. Greenwald are actually questioning the motivation (certainly not in the terms of "venal") of the executive branch, rather they are questioning the legality of their approach. Please read the American Bar Association's letter to members of the executive branch (http://www.abanet.org/op/greco/memos/aba_domsurv_ltr_whthouse-0206.pdf) and their six-part recommendations (http://www.abanews.org/docs/domsurvrecommendationfinal.pdf)
Another great post, however I must take exception to one presumption:
ReplyDelete...and the media was scared into uncritical support for the Protector-President -- created a situation where there was little, if any, resistance to those power-grabbing schemes.
If the media is indeed scared, it was not 9/11 that scared them but rather fear of retaliation from a psychopathic Rove who is without ethics or morals. I believe the whole purpose of this domestic spying program is to gather information on Republicans, Democrats, and media persons so as to extort them into compliance with whatever BushCo wants. Didn't I read somewhere that this program has been going on since before 9/11? James Risen's book maybe?
Gedaliya,
ReplyDelete"Why, exactly, do you think Bush is exercising his presidential authority to conduct warrantless monitoring of communications between al Qaeda operatives overseas and their American-base correspondents?"
You are too cute by half. Nobody is talking about calls between KNOWN Al Qaeda operatives overseas and their American-based correspondents, all 0 to 100 of those calls per year, and yet you keep positing that only such calls are in question. It's the spying on the other 200+ million Americans which concerns us.
Please remember, dear, when you write these silly things, that if NSA has not secured warrants for all phone calls made or received by KNOWN Al Queda operatives, then Bush should be held accountable for recklessly threatening our national security so blatantly.
But if we DON'T know that is a number belonging to a KNOWN Al Queda operative, or do not have probable cause to think so, why exactly are we monitoring that number, with or without a warrant?
Logic, dear, logic.
As to motivation, it is in Bush's interest to promote the Unitary Executive concept, specifically to advance the claim that Article II powers extend to nullifying acts, checks and balances of the Congress and courts in times of "war", and allowing him alone to decide the constitutionality of anything he does. The FISA issue is a test case that, if his view prevails, certifies the highly questionable assertion of the UE. So, indeed, we have a constitutional crisis, and that is a big deal in my opinion.
ReplyDeleteI like how the Captain admits when he's factually wrong about one thing - and then proceeds to be factually wrong about something else.
ReplyDeleteInteresting question. Why do you believe the Bush Administration decided the FISA statute did not apply in cases where telecommunications took place between al Qaeda suspects overseas and their American correspondents? Do you believe it took place simply because president Bush is mad for power? Because he wants to destroy the constitution?
ReplyDeleteThe whole point is that they have no way of knowing if the conversations they are eavesdropping on actually involve Al Qaeda members and their allies. If they knew that, they could easily get FISA warrants for that eavesdropping. And the fact that they aren't arresting the thousands of Americans they've been eavesdropping on is pretty compelling evidence that those people aren't allies of Al Qaeda.
I don't think motives really matter. When someone breaks the law, the first issue is to convict them of violating the law. Motives come into play, if at all, only at the punishment stage (and here, once they got caught breaking the law (and it is a criminal offense in this country to eavesdrop on Americans without judicial oversight), they vowed to continue to break the law and are continuing to break it, thus negating any leniency that might otherwise be warranted by "good motives").
Having said that, I see only two potential motives for their decision to eavesdrop outside of FISA (and, concurrently, failing to seek legislative changes to FISA if they thought, contrary to their public statements, that FISA was inadequate):
(1) They wanted to eavesdrop on people whom the law would not allow them to eavesdrop on (because they could not demonstrate the existence of probable cause, which could be due to several different reasons), and they therefore could not go to the FISA judges to get permission because even the rubber-stamping FISA court would not give it; and/or,
(2) They embraced and wanted to install the Yoo Theory of Executive Power that neither the Congress nor the courts can interfere with what the President decides to do -- even when it involves applying government power to American citizens on U.S. soil - and so they just refused to comply with Congressional law and refused to seek the judicial approval which that law requires because they just don't think they should have to.
Either way, they broke the law. The question of why they did so may be interesting to speculate about, but ultimately, it's irrelevant. We are a nation of laws and our political officials don't have any greater right to break those laws than any other citizen, no matter how justified they think they are in doing so.
"Conservatives" claimed to believe in those principles when it came to Clinton's lies about the sex he had with Monica Lewinsky.
Glenn
ReplyDeleteOf topic I'm sorry. Some folks at firdoglake are thinking of doing a little researchand writing and trying to put togther a testimony plan for when Comey and (may even Ashcroft) testify before the Judicairy committee.
The idea being that if we come up with something we think is really good, we send it to all/most of the committee members in the hope that they will use it.
The goal being to have the committee members ASK THE RIGHT QUESTIONS. Comey and AShcroft are both bound ad nearly gagged by the assorted priviledges and secrecy obligations they have undertaken, yet carefully crafted questions may be able to navigate over, through and around the coral reefs without ripping the bottom out of the boat.
Mrs. K8 thought you might like to participate and so I'm here to invite you.
Either way, they broke the law. The question of why they did so may be interesting to speculate about, but ultimately, it's irrelevant.
ReplyDeleteAnd, either way, no matter what their reasons, it is repugnant to basic American values which demand a) some sort of check on executive branch power and b) freedom from “unreasonable” intrusion of the government into private lives of Americans – if it wasn’t “unreasonable” then FISA would have approved it.
Either way, it’s troubling.
Glenn Greenwald writes:
ReplyDeleteAnd the fact that they aren't arresting the thousands of Americans they've been eavesdropping on is pretty compelling evidence that those people aren't allies of Al Qaeda.
If I interpret this remark correctly, you are implying that the NSA eavesdropping program is not designed to monitor al Qaeda communications at all, but in fact has some other purpose. What would that purpose be?
I don't think motives really matter. When someone breaks the law, the first issue is to convict them of violating the law.
You are an experienced litigator. How often are criminal suspects convicted without a jury being presented with a plausible motive? I suspect it happens in certain cases, but I bet not too often.
Even so, we are not just debating a technical matter of criminal law here, but a significant political controversy, and in this case the question of motive is paramount to a meaningful debate.
They wanted to eavesdrop on people whom the law would not allow them to eavesdrop on (because they could not demonstrate the existence of probable cause...
For what purpose?
They embraced and wanted to install the Yoo Theory of Executive Power that neither the Congress nor the courts can interfere with what the President decides to do...
But why? Why would the president bring into motion an entire federal agency (the NSA) to conduct a secret operation, brief the congressional leadership about it, and (presumably) act on the information it finds by carrying out military operations? Can you seriously believe that this was done simply as a game of oneupmanship with the Congress and the federal courts?
I am not presuaded you've given this matter very much thought. My guess is that you, and the bush-haters you represent, don't care a whit why the president made this decision, but only see an opportunity to use it against him politically. In my view this is wholly irresponsible conduct on your part, especially since you simply ignore what is quite obviously the true reason why we are listening to al Qaeda: it is in the national security interest of the United States to do so, and to not do so would represent an abrogration of the president's oath of office.
You're a smart guy, Glenn. It is too bad you cannot overcome this visceral bush-hatred that infects you so profoundly. If you bothered to think about it, I believe you'd realize that the policy debate about the NSA operation is meaningful not because it (briefly) gave the bush-haters a glimmer of hope that it would bring down his presidency, but because it might illuminate the threats we face from our mortal enemies and provide the means to debate how best to face that threat.
Unfortunately for all of us, you've decided to stay out of that debate and marginalize yourself as a cheerleader of the bush-hating left.
Glenn writes: Either way, they broke the law. The question of why they did so may be interesting to speculate about, but ultimately, it's irrelevant. We are a nation of laws and our political officials don't have any greater right to break those laws than any other citizen, no matter how justified they think they are in doing so.
ReplyDeleteExactly so. And it worthwhile to revisit Justice Jackson's Opinion in
Youngstown Sheet & Tube Co. v. Sawyer, keeping in mind, of course, that John Hinderaker at Powerline has at least twice dismissed it as "sloppy thinking" and more recently as "silly." (The justices in the Hamdi Court employed Jackson's analysis, and it was recently endorsed by Sam Alito -- none of these folks seem to have gotten John's "silly" memo.)
Jackson's Opinion in Youngstown controls Bush's claims in the NSA warrantless surveillance program (no doubt explaining John's antipathy for it), in violation of FISA. Jackson could not be more emphatic in his thoroughly patriotic reasons for holding the Executive, even during war, to the rule of law (all emphasis mine):
There are indications that the Constitution did not contemplate that the title Commander in Chief of the [p644] Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval Forces," by which it may, to some unknown extent, impinge upon even command functions.
That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.
....
His command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch [p646] is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role.
...
In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.
....
The essence of our free Government is "leave to live by no man's leave, underneath the law" -- to be governed by those impersonal forces which we call law. Our Government [p655] is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights. ...With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.
gedaliya says:
ReplyDeleteInteresting question. Why do you believe the Bush Administration decided the FISA statute did not apply in cases where telecommunications took place between al Qaeda suspects overseas and their American correspondents?
Without that talking point you have nothing, don't you? The fact that you go through such obvious girations to insert this "al Qaeda suspects and their American correspondents" sentence tells us that even you don't like this. It's a nice way for you to set up, in your own mind, a false dichotomy. But methinks you haven't been paying attention to what Glenn has been writing about.
Homework for you: go back and read Glenn's posts. Don't skim them and skip the parts you don't want to deal with.
Then come back and tell us where he addressed this point before.
Michaelgalien asks:Therefore I ask this question, hopefully somebody will answer it, are there more great blogs like this one, written or participated by lawyers / people who know about about American Law? If so, what are they?
ReplyDeleteThere are a good number of lawyers participating here, as well as intelligent non-lawyers. For a super site that is largely by and for attorneys (but open to all), check out The Volokh Conspiracy. Glenn links to it under his "Blogs I Read" blogroll.
gedalyia:
ReplyDeleteI think Glenn's point, which we all understand, is that it matters not the President's intentions. Heck, we could all accept that he is trying to protect America.
But this isn't 24 and the President isn't living in the fantasy land of Jack Bauer. We have laws and we are a nation of laws.
And let me remind you that absolute power corrupts absolutely. Can you point to any safeguards against abuse? Can you guarantee that the program isn't being used against political opponents (see Nixon)? The question of Bolton requesting identities of targets of NSA survaillance raises serious question about this.
The problem is that there are no rules. It's like CalvinBall.
Looks like Mr. Greenwald may have to back down from his references(yesterday) to "that incomparable White House shill Sen. Pat Roberts," or "the mewling, slavish and indescribably dishonest Pat Roberts."
ReplyDeleteMight be a better idea for Mr. Greenwald to take a less hysterical tone in the first instance.
Unfortunately for all of us, you've decided to stay out of that debate and marginalize yourself as a cheerleader of the bush-hating left.
ReplyDeleteAnd thus do you brand yourself as a cheerleader of the authoritarian-loving right.
Do you believe it took place simply because president Bush is mad for power? Because he wants to destroy the constitution?
Sounds about right, but if I were you I wouldnt type things like that too loud. That big comb-filter might automaticaly dump your name into the all encompassing no-fly watch list.
But definetly your first instinct was right. He does so enjoy wiping his ass with the constitution just because he can.
SnarkyShark
Celo writes:
ReplyDeleteHeck, we could all accept that he is trying to protect America.
Do you believe that?
And let me remind you that absolute power corrupts absolutely.
Well, yes, Lord Acton's point has merit, but you don't really believe that George Bush is striving for "absolute power," do you?
Can you guarantee that the program isn't being used against political opponents (see Nixon)?
Well, no, I can't "guarantee" that the program is not being used that way, but given its scope, the fact that the congressional leadership was briefed on its details, and the fact that no Democrat of any stature is calling for the program to end, the chances the program is being used for crass political purposes is remote, at best.
The question of Bolton requesting identities of targets of NSA survaillance raises serious question about this.
Oh? How so? Given his position as our ambassador to the United Nations, wouldn't it make sense for him to know the identities of targets in order to coordinate appropriate responses with our allies and friends?
The problem is that there are no rules.
This is not true. There are rules... you just don't like them.
Glenn said:
ReplyDeleteHaving said that, I see only two potential motives for their decision to eavesdrop outside of FISA (and, concurrently, failing to seek legislative changes to FISA if they thought, contrary to their public statements, that FISA was inadequate):
(1) They wanted to eavesdrop on people whom the law would not allow them to eavesdrop on (because they could not demonstrate the existence of probable cause, which could be due to several different reasons), and they therefore could not go to the FISA judges to get permission because even the rubber-stamping FISA court would not give it; and/or,
(2) They embraced and wanted to install the Yoo Theory of Executive Power that neither the Congress nor the courts can interfere with what the President decides to do -- even when it involves applying government power to American citizens on U.S. soil - and so they just refused to comply with Congressional law and refused to seek the judicial approval which that law requires because they just don't think they should have to.
Motive does indeed matter in addition to the illegal act itself because if Option One above is indeed true, then the reason for the illegal spying is not related to national security. What the FISA court, nor indeed any court would approve would be a simple search, domestically for dirt. Plain old fashioned dirt as in gutter politics dirt; sex, drugs, alcohol, extramarital activites, etc.
When all is said and done, I believe this will be the motive. Afterall, that's the Nixon pattern and these folks came out of the Nixon wing of the Republican Party.
Captain Ed was probably referring to warrantless physical searches as were made in the Aldrich Ames case. Note that a warrant was not required at that time for physical searches, but subsequent to Clinton administration/DOJ recommendation Congress amended FISA to require warrants for physical searches.
ReplyDeleteThe reason this falls under FISA and not regular crim pro is because the Predominant Purpose Test (U.S. v. Truong, and its progeny) imposes a different standard and meaning for "probable cause" when the government's predominant purpose for the investigation is anti-espionange or anti-terrorism rather than normal criminal activity.
Of course since no warrant was required, Captain Ed's implication is wrong. Surprised?
Michaelgalien
ReplyDeleteThanks for replying to my request. I'm only 18 and not a law student. This Alex clearly is. Furthermore, my understanding of Alito tells me that Alito is far extreme rightist and is anti-individual freedom and pro-business and anti-civil rights. I wanted to research legal cases to prove my point but I have no starting point.
Thanks for your comment though becuase you made it a little easier to understand what Alex was saying.
I still think I disagree. "A strict constitutionalist" seems to me has the power balanced in all the branches--yet Alito IS a person who favors executive power. And if you have the right to be safe and secure in your own home and own person, then why would he approve the strip search of the ten year old?
Can you please comment on my blog, because it's easier for me to see when you post back to me. (Plus, I'm a student with 13 credit hours and two jobs. I don't want to miss your comments or anyone elses!)
Thanks!
Also, would it be ok if I copied your comment over there and posted my reply too, so that others including alex can join the conversation? (or would you please go post it there.) Either way, it would be nice to include Alex and others in that discussion, and Alex being a law student, would probably appreciate the conversation as well.
ReplyDeleteHere's the link again because it doesn't look like it showed through my last post.
http://www.progressiveu.org/175545-samuel-alito-on-the-bench-whose-influence-will-he-surround-himself-with
Michaelgalian,
ReplyDeleteAlso, there's nashuaadvocate.blogspot.com though I haven't been there recently
gedalyia:
ReplyDeleteDo you believe that?
This isn't a forum on beliefs. Do you believe in Santa?
Well, yes, Lord Acton's point has merit, but you don't really believe that George Bush is striving for "absolute power," do you?
Is it so hard to fathom? Chaney has stated as much, and every abusive government in history has achieved the power necessary to oppress by convincing people they were defending their interests. It doesn't take much of an imagination to contemplate this. Unless you think that human nature is different in our country.
What keeps us from despotism isn't good intentions, is institutions and laws.
Well, no, I can't "guarantee" that the program is not being used that way, but given its scope, the fact that the congressional leadership was briefed on its details, and the fact that no Democrat of any stature is calling for the program to end, the chances the program is being used for crass political purposes is remote, at best.
So you admit you don't know. That is our point. We just want to know, or for someone impartial to know.
And Democrats are indeed calling for an investigation. It's the GOP that doesn't want to know. Ignorance is bliss in Congress, I guess.
Oh? How so? Given his position as our ambassador to the United Nations, wouldn't it make sense for him to know the identities of targets in order to coordinate appropriate responses with our allies and friends?
Actually, the Bolton problem happened before he was Ambassador. I suggest you do some checking on this before spouting off.
This is not true. There are rules... you just don't like them.
No. Like CalvinBall, the rules only exist to provide for loopholes:
Any player may declare a new rule at any point in the game. The player may do this audibly or silently depending on what zone the player is in.
You don't know what the program does. The handful of people who have been told the very basics have also been told not to tell anyone. There is no mechanism allowed for oversight. There is no mechanism allowed for challange.
Since you can't know what the program truly does, you can't guarantee anything about its legality. Since you've admitted as much, we'll simply agree that Glenn is right.
That is, unless you believe that Glenn doesn't want to defend our country...
ReplyDeletedo you believe he is against America??
ReplyDeleteI still think I disagree. "A strict constitutionalist" seems to me has the power balanced in all the branches--yet Alito IS a person who favors executive power. And if you have the right to be safe and secure in your own home and own person, then why would he approve the strip search of the ten year old?
(sigh) Sam Alito did not "approve" the strip search of a ten-yr-old girl. Those kinds of searches (unfortunately) do occur in the U.S., in the context of drug crime investigations, but may legally occur (usually) only with a valid warrant.
In the case Alito ruled on, the question was not whether such a search was good or bad policy, but only whether the police officers who really believed their warrant authorized that search, should be subject to liability in a civil lawsuit. Ordinarily, law enforcement is extended qualified immunity, and this is necessary and in the public interest, if the police, firemen/women and etc. are to feel free to do their jobs.
Alito felt the warrants in the case under discusison could be read to include a strip search of the ten-yr-old (which, again, does sometimes happen in drug crime investigations); for purposes of criminal prosecution, I would not agree. But when it is not disputed that the police really thought the warrants did cover such a search -- which searches, again, do go on in the U.S. with some frequency -- I have strong qualms about putting the officers in financial jeopardy.
As for the idea that Alito is some raging aurthoritarian maniac, right-of-center law professor Orin Kerr posting at The Volokh Conspiracy has written that he believes Alito would rule against Bush on this NSA warrantless surveillance matter. In my view, it is, indeed, entirely possible Bush would lose 9-0.
Celo, wrt your inquiry as to whether Glenn is against our country. Glenn, like many others -- left, right and center -- clearly understands what Justice Jackson set forth in his Youngstown Opinion, which to briefly quote again, was this:
ReplyDeleteWith all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.
Such institutions may be destined to pass away. But it is the duty of the Court to be last, not first, to give them up.
So, as I read Glenn, he understands that Exective law-breaking and rejection of the rule of law, constitute a "mortal enemy" to our institutions -- institutions which, as Justice Jackson feared, might be destined to pass away.
Celo writes:
ReplyDeleteThis isn't a forum on beliefs.
Hmmm. The question was whether you believe that the president's motives in undertaking the NSA program was to "protect America." Answering "yes" or "no" to this question will not render Glenn's blog a "forum on beliefs."
Why don't you answer the question?
Chaney has stated as much...
Please provide a source that supports this statement, i.e., that Chaney has stated he wants "absolute power."
So you admit you don't know.
That's not what I said. I said the possibility that the NSA program goes beyond its stated purpose is very remote. There are risks in every meaningful human endeavor. There are no "guarantees." I believe the benefits of the NSA program far outway its possible risks. Do you really want an ironclad "guarantee" before we engage in any kind of surveillance that to protect ourselves?
Actually, the Bolton problem happened before he was Ambassador.
Before he was ambassador he was a State Department official (Undersecretary of State for Arms Control and International Security Affairs). His very title indicates he had responsibilities that would make him a "need to know" individual in regard to the information being uncovered by the NSA program.
Since you can't know what the program truly does, you can't guarantee anything about its legality.
As you'll soon see, any questions about the program's legality will be resolved by our political leadership. What won't happen (as you'll also see), is the elevation of this political controversy into the Glenn Greenwald-described "scandal" that the bush-haters so ardently desire.
do you believe he is against America??
No, I do not.
@gedaliya:
ReplyDelete> If I interpret this remark
> correctly, you are implying that
> the NSA eavesdropping program is
> not designed to monitor al Qaeda
> communications at all, but in fact
> has some other purpose. What
> would that purpose be?
You're creating a false dichotomy. It can very well be designed to monitor terrorit communications and at the same time make it easy and convenient to be used for lots of other (unlawful) purposes as well.
> How often are criminal suspects
> convicted without a jury being
> presented with a plausible motive?
> I suspect it happens in certain
> cases, but I bet not too often.
False analogy. In the cases you mention, it is often unclear _who_ is the responsible person, which is an absolute certainty in Bush's case. The question is not whether it was him, but rather if what he did violates laws/constition.
> in this case the question of
> motive is paramount to a
> meaningful debate.
Translation: Since there is hardly any wiggle-room when it comes to foging the facts, let's please shift the debate into an area where not the facts, but opinions and clouding o the issue wiegh more, in order to be able to at least score political points, even when we legally might be loose.
It's not surprising you see it that way...
>> They wanted to eavesdrop on
>> people whom the law would not
>> allow them to eavesdrop on
>> (because they could not
>> demonstrate the existence of
>> probable cause...
>
>
> For what purpose?
Because they can. That's often enugh reason. Digging up information on people that are critical to the administration is of very high value, when it comes to character assassinations of people that can't be silenced otherwise. It doesn't have to be illegal stuff, just stuff that makes people look bad. Come on, it's not like this is a brilliantly new or unique concept...
Is it true? Who knows, it's highly unlikely that something like that could be provable. But it is absolutely plausible (and this is not even specific to Bush, his people or the NSA).
> I am not presuaded you've given
> this matter very much thought.
Red herring. You're tring to shift the discussion into a place with no hard facts and lots of spin. Your motivation is obvious and little surprising. Nice try, but...
> My guess is that you, and the
> bush-haters you represent, don't
> care a whit why the president made
> this decision, but only see an
> opportunity to use it against him
> politically.
> In my view this is wholly
> irresponsible conduct on your
> part,
It is irresponsible upholding the rule of law and the consitution, if Bush could get hurt? Talk about odd stances...
> especially since you simply
> ignore what is quite obviously the
> true reason why we are listening
> to al Qaeda: it is in the national
> security interest of the United
> States to do so, and to not do so
> would represent an abrogration of
> the president's oath of office.
Totally unrelated to the topic at hand. Everybody wants that to happen. Again you're trying to cloud the issue with plenty of rhetoric...
> this visceral bush-hatred that
> infects you so profoundly.
Have you ever pondered the possibility that might be you, who's irrational emotional connections cloud logical thinking?
> If you bothered to think about it,
Yes, everbody thinks that if the other side would just think hard enough about thinks, they'd come to realize their side is ultimately right. But sometimes you gotta follow the facts, not your pre-conceived opinions, gedaliya. Think about it ;)
> but because it might illuminate
> the threats we face from our
> mortal enemies
We need to break laws to illuminate that? How is that any different from him simply saying: "Trust us. We really have definitve proof of WMD in Iraq. There's no need for anybod else to examine it".
> and provide the
> means to debate how best to face
> that threat.
It would have been a great thing if Bush had decided to debate the FISA law and agued for abolishing it. Then we could hav had the discussion without all the partisan issues it implies now.
Unfortunately it was BUSH who chose to lie about FISA and disregard it, instead of being open about his thoughts on the law.
> Unfortunately for all of us,
> you've decided to stay out of that
> debate and marginalize yourself
> as a cheerleader of the
> bush-hating left.
Namecalling - wow, now you've really impressed me. Not.
Jim Deloh
but only whether the police officers who really believed their warrant authorized that search
ReplyDeleteSince this hinges on divining the thoughts of the police officers in question, why did they really believe that their warrant authorized that search, when it was not included in the actual warrant the judge issued? They're not used to distinguishing between the "wish list" on their warrant application and the actual warrant itself? Why have a judicial warrant at all, if the police can simply determine "in good faith" what the warrant should read? Mr. Alito sided with police power and asserted that officers should not be held responsible for an illegal search if they really believed in their hearts at the time that it wasn't illegal. What a stringent Fourth Amendment standard.
Contra Mr. Alito, I also don't think adult women should be treated by the law as if they were children (see Planned Parenthood v. Casey). There's an awful lot of territory between "raging authoritarian maniac" and sound judicial reasoning.
But that's all water under the bridge now, and certainly much less relevant than willful violation of federal statute by the executive branch. On the Alito nomination, Vox Senatus Vox Bush.
Anyway, Hamdi v. Rumsfeld suggests to me that any NSA case that reaches the SCOTUS would be an 8-1 decision at most. Though I'd like to be wrong. Regardless, gedaliya and his ilk are fond of supporting the President's "right" to ignore the Supreme Court in carrying out his "inherent Article II powers", as the President made clear in his McCain Amendment signing statement. So such a case would be meaningless.
--mds
mds writes: Since this hinges on divining the thoughts of the police officers in question, why did they really believe that their warrant authorized that search, when it was not included in the actual warrant the judge issued?
ReplyDeleteRecalling from memory as best I can (I read the case when it was first raised to attack the Alito nomination), the cops through the DA filed affidavits specifically requesting the ability to search the child in question. For whatever reason, and with no discussion, the magistrate's actual order did not include specific authorization for that request, altho subsequent argument made was that the requests in the affidavits were incorportated by reference or some such into the warrant, and Alito thought that had some merit.
In any event, nothing I read in the case suggested that anyone -- even the opposing parties -- thought the cops were just cavalierly assuming power with no basis in good faith belief. It does not seem that the DA told them their requested search authority had in any way been denied (and it may also be that the magistrate thought s/he had authorized everything requested in the petition for the warrant), and the cops thought they'd been given the green light on everything they had asked for. And, it just is an unfortunate reality that in drug investigations sometimes searches of kids take place.
But whatever else is true, that case cannot be read to mean that Sam Alito thinks rogue police should run around strip-searching tots at will, contrary to how some of those who opposed his nomination sought to bork him on that issue.
What purpose would Greenwald's speculation on Bush's motives serve? I can think of none.
ReplyDeleteGlenn has already speculated on Bush's motives:
1. To eavesdrop on people they knew the FISA court would never approve.
2. To advance the "Yoo Theory of Presidential Power."
Both of the possible motives are, to say the least, unlikely, given the scope of the program and the fact its details are known to members of the opposition party. But Glenn knows this.
As I've stated before in this thread, it is my guess that Glenn cares not a whit about why the president promulgated the program. His interest is using the controversy to advance another agenda, i.e., to discredit the president at any cost, and (more importantly) to promote his blog as a gathering place for the Bush-hating left.
At least in the short term it would appear the latter goal, at least, is being realized.
The important thing about the continuing uncertainty and unease between the WH and Congress on the NSA issue is that IT'S A WEAKNESS WE CAN EXPLOIT. People ask: what can we do? Answer: STAY IN THE SADDLE.
ReplyDeleteIf you want to keep the pressure on at a CRITICAL time, when even a few emails or calls from concerned citizens can be incredibly effective, please use the resources at VichyDems. First post explains what and why; the linked Game Plan gives talking points and all the resources you need including email/webmail links, DC and local office phone numbers, etc.
The weekend is a GREAT time to call. Rates are down, and no one can ask you whether you live in the correct state; all comments will just be logged and reported on Monday morning.
questionmark writes:
ReplyDeleteLet me put it this way - it's the job of Bush's defenders or Bush himself to reach the level of base factuality in this debate so they may present some kind of plausible non-villainous motive for his lawbreaking.
No prominent Democrat has charged the president with "lawbreaking." This charge is confined to the fever swamps of the bush-hating left. This is a policy dispute. That is why there will be a political solution to the controversy in the form of a compromise.
hypatia said:
ReplyDelete"For whatever reason, and with no discussion, the magistrate's actual order did not include specific authorization for that request,"
um, perhaps because the judge didn't agree that the cops shoud strip search a 10 yr. old girl?
Any player may declare a new rule at any point in the game. The player may do this audibly or silently depending on what zone the player is in.
ReplyDeleteNow I get it -- THEY ARE JUST PLAYING CALVIN BALL!!!!!!!
mds: I know you are horrified by Thomas's dissent in Hamdi, but I do not read that Opinion as in any way predicting he would uphold the NSA warrantless spying program in direct violation of a law of Congress. Hamdi did not involve a conflict in which Bush wanted to do something that Congress had explicitly prohibited; Thomas is just saying the Court has no precedential basis for interfering, not that Congress may not. Thomas embraces Justice Jackson's Youngstown Opinion, and writes (my emphasis):
ReplyDeleteThe plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U.S. 319 (1976). I do not think that the Federal Government’s war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them.
...
Congress, to be sure, has a substantial and essential role in both foreign affairs and national security.
.....
For these institutional reasons and because “Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act,” it should come as no surprise that “[s]uch failure of Congress … does not, ‘especially … in the areas of foreign policy and national security,’ imply ‘congressional disapproval’ of action taken by the Executive.” Dames & Moore v. Regan, 453 U.S. 654, 678 (1981) (quoting Agee, 453 U.S., at 291). Rather, in these domains, the fact that Congress has provided the President with broad authorities does not imply–and the Judicial Branch should not infer–that Congress intended to deprive him of particular powers not specifically enumerated. See Dames & Moore, 453 U.S., at 678. As far as the courts are concerned, “the enactment of legislation closely related to the question of the President’s authority in a particular case which evinces legislative intent to accord the President broad discretion may be considered to ‘invite’ ‘measures on independent presidential responsibility.’ ” Ibid. (quoting Youngstown, 343 U.S., at 637 (Jackson, J., concurring)).
Absent a more specific statute prohibiting the detention of Hamdi after being captured in combat on foreign soil, it makes at least intellectual sense for Thomas to read the AUMF as he does -- but he does strongly suggest that Congress could legislate against the President in the area of national security, and heavily invokes the very Opinion (Jackson's in Youngstown) that establishes that.
I really believe Bush would lose 9-0.
Gedaliya-
ReplyDeleteCheney has been documented as wanting a stronger executive, and is the only person in perhaps the U.S. that thinks that branch has gotten weaker in the last 30 years.
Human behavior almost dictates that people will push the envelope of what is legal, whether it is lobbying monies, gambling, paying taxes, pronography, whatever.
I don't think it is a stretch for them to push to test the Constitution (like the 4th Amendment) because they can.
"But the fact that he's bucking and kicking just a little bit demonstrates...."
ReplyDeleteAre you sure? or does it just demonstrate the desire to make appearences that their if a semi-functional legislative branch, to keep us all half asleep and out of the streets rioting where we shold be by this point.
Gedaliya,
ReplyDeleteYou are hiding behind a shrinking number of very trivial facts.
Motives do not, in fact, matter one iota. The president is not above the law. You break the law, you get convicted of breaking the law. That's justice. Period.
I don't care if George Bush's intent was to protect America from terrorists. Protecting America from terrorists is not - and THIS is the subtext of the entire debate - a golden apple that allows one to do anything they want. For example, in response to this leak, George Bush could have ordered the FBI to raid the New York Times, incarerate all the officers, dynamite the building, and prosecute the company.
For that matter, since the program had been 'leaked' to members of congress, in order to satisfy that national security imperative of not letting classified information be transmitted to Al-Quieda, he could have ordered US Special Forces to storm the Congressional Building and incarcerate the Congress.
Sure, all of this is against the law. So what? The argument you're making gedaliya, is that laws don't matter when protecting terrorism is at stake.
Congress passed a law explicitly mandating no electronic surveillance of American citizens without a warrant and George Bush broke it. You are arguing that George Bush can break the law at his choosing. (All the Constititional Arguments, since no court declared FISA invalid, boil down to this).
You are arguing for the end of presidential accountability to the law.
You want this to be a political dispute, and there are indeed political consequences related to the matter. And, yes, politics and law are connected, since, as you may have noticed, politicians make the law. But when you claim that this is a policy dispute, you're really asserting your desire to make it a policy dispute, because this is a way for George Bush not to be convicted of breaking the law.
Congress is capable of turning this back into a political dispute by granting a law nullifying FISA, exempting Bush from it, or doing any one of a number of things, but until then, George Bush is a criminal.
Your argument is to use political methods to end the essentially legal nature of the matter and, in doing so, reward the breaking of law.
Maybe someday you'll be ashamed of yourself.
Furthermore:
ReplyDeleteIt doesn't matter what Democratic members of congress are saying, or what they did or did not passively fail to oppose earlier. Illegal action does not become legal when representatives of congress fail to speak out against it.
sunny writes: um, perhaps because the judge didn't agree that the cops shoud strip search a 10 yr. old girl?
ReplyDeleteThat would be rather unusual in the context of drug crime investigations. In any event, a local DA ofc knows its judges, and there was no evidence I saw to suggest that the DA communicated to the police that that aspect of the search request had been denied -- if the DA even thought it had been, and if the judge even intended to do that.
Again, for purposes of criminal prosecution, I do strongly believe it is essential to hold law enforcement to the four corners of a search warrant. But I would not subject them to severe financial penalty when they make a good faith mistake of that sort. And that was the situation in the case in which Sam Alito supposedly sang the praises of cops willy-nilly nabbing tikes and invading their body cavities.
glastnost says:
ReplyDeleteMotives do not, in fact, matter one iota. The president is not above the law. You break the law, you get convicted of breaking the law. That's justice. Period.
Motives matter a great deal in criminal law. "Intent," for instance, must be proved beyond a reasonable doubt in many criminal cases (see, for instance, the Intelligence Identities and Protection Act). More importantly, when political disputes are debated in the public square, the motives of the players in advancing their respective points-of-view are often dispositve in regard to the outcome of the debate.
Oh, and one other thing, "you break the law," and "you get convicted" are certainly not in one-to-one correspondence. If they were, criminal defense attorneys would not make a living.
I don't care if George Bush's intent was to protect America from terrorists.
Well, that puts you into the bush-hating fever swamp, unfortunately.
The argument you're making gedaliya, is that laws don't matter when protecting terrorism is at stake.
Some laws do not matter when terrorism is at stake. When is the last time you saw the warrant granting the TSA permission to search your luggage when you went to the airport?
Congress is capable of turning this back into a political dispute by granting a law nullifying FISA, exempting Bush from it, or doing any one of a number of things, but until then, George Bush is a criminal.
This may come as a shock to you, but you're not a "criminal" until you're convicted of a crime.
Your argument is to use political methods to end the essentially legal nature of the matter and, in doing so, reward the breaking of law.
I think you mean something else here, but yes, I believe that this dispute will be settled politically.
Glasnost,
ReplyDeleteWhat part of inherent powers do you not understand?
The executive branch makes the call on foreign/domestic warrantless surveillance.
If the legislative branch doesn't like it, they can dismantle the NSA.
As much as you want to whine and whine about the FISA laws, you cannot ignore the AUMF from a legal standpoint and inherent powers from a constitutional standpoint. If it went to court Bush would have a huge, huge advantage as you would have drastically reduce his inherent powers plus prove the vague AUMF didn't overrule FISA. You would lose, which is why the democrats are curling up in the fetal position right now.
There is a mistake here circulating that is common to laypeople, but which one is disabused of in Crim Law 101 in law school. Motive and intent are not coterminous at law. Glenn is right in what he has said about the lack of necessity to show Bush's motive is bad in his decision to break the law.
ReplyDeleteTo pick just one site that came up when I googled, and which reflects elementary criminal law doctrine, emphasis in original:
Intent and motive are not the same thing. In Criminal Law, motive is that which leads or tempts the mind to indulge in a criminal act, such as an impulse, incentive, or reason for commiting the crime. Intent is the mind being fully aware of the consequences. Many criminal statutes require intent as an element of the crime, but motive is never stated as an essential element of a crime in any criminal statute. Motive can be used to assist in establishing intent, but more likely, motive is introduced as a piece of evidence, often circumstantial, admitted along with evidence of opportunity, to impress the judge or jury.
gedaliya, you right-wingers have been bitching for decades about Big Gubment, now Bush comes along and says "trust me" and you roll over like a little puppy dog.
ReplyDeleteWho said if men were angels we wouldn't need laws?
I would trust NO president, either Republican or Democratic, who claimed such powers. Neither did our Founding Fathers.
The bit about how the Carter and Clinton administrations "didn't think it applied" is rather incoherent (I have no idea what that means)...
ReplyDeleteI think he's probably referring to some of the assertions made in this Washington Times article, which tries to argue that Griffin Bell and Jamie Gorelick believed FISA had no power to curtail the President's constitutional authority.
This is, of course, completely ridiculous, and a complete distortion of what Bell and Gorelick were saying. My reading of it is simply that Bell and Gorelick were saying they supported FISA because it doesn't take away the President's authority to perform surveillance.
If it went to court Bush would have a huge, huge advantage as you would have drastically reduce his inherent powers plus prove the vague AUMF didn't overrule FISA.
ReplyDeleteActually, Bush would lose, almost certainly. As has been discussed here and elsewhere, the AUMF did not repeal FISA. It is a fundamental principle of statutory construction that implied repeals are deeply frowned on, and a general statute will not be read to repeal a specific one.
This area of law vis-a-vis FISA and the AUMF is well addressed in the 2/2/06 Letter sent to Congress and signed by 14 former govt lawyers and/or Con Law professors. Among those signing were right-of center U of Chicago Con Law prof Richard Epstein, and Reagan-appointed Director of the FBI (and former federal judge), William Sessions. Glenn has linked to the letter somewhere below.
Do read it, please,
gay veteran writes:
ReplyDeleteI would trust NO president, either Republican or Democratic, who claimed such powers.
Not even Abraham Lincoln?
Hypatia, I'll confess you make a fairly convincing case on Justice Thomas. Yes, I'm horrified by Hamdi, but I'm willing to agree that openly disregarding federal statutes is more unequivocal. Perhaps Justice Thomas would also be more critical of the Executive in a putative Padilla v. Rumsfeld decision? I know gedaliya would consider criticism of indefinite military detention of a US citizen initially detained in the US by civilian authorities to be "leftist Bush hating," but I could give even Justice Thomas more benefit of the doubt.
ReplyDeleteNot even Abraham Lincoln?
Nope, not even Abraham Lincoln. I would side with the Supreme Court, as well as the Congress of 1863, in requiring that laws and the Constitution be obeyed on habeas matters. And that was even during a declared war of presumed definite duration, rather than a "clash of civilizations" that ends when "terrorism" is annihilated and we all get ponies.
--mds
gedalyia said...
ReplyDeleteBoth of the possible motives are, to say the least, unlikely, given the scope of the program and the fact its details are known to members of the opposition party.
gedalyia, what do you know about the scope of the program? Are you a member of the administration and knowledgeable about the details of the program? Do you work on this program at the NSA? Chances are you know absolutely nothing about the scope of this program, and that is bottom line, neither do we.
So how does a civil society ensure they know the scope of the program? They put institutions and laws into place to govern the conduct of participants in such programs so that we can insure the scope of the program is lawful and legitimate.
Congress did that, they passed the FISA. There is a secret court set up to oversee such a program to ensure the participants adhere to the stated scope of the program and don't violate the rights of American citizens.
The President ignored this law, and created a secret program that none of us know the scope of. If he is spying on the opposition party, or on unfriendly reporters, what makes you believe he is going to come out and tell them he is spying on them?
The law passed by congress requires the president obtain a warrant to spy on an American on American soil. The President has spied on Americans on American soil without a warrant. The President broke the law, his motivations for breaking the law are immaterial.
I would side with the Supreme Court, as well as the Congress of 1863, in requiring that laws and the Constitution be obeyed on habeas matters.
ReplyDeleteLincoln, of course, simply ignored Taney. The congress in 1863, as you know, did exactly what I predict this congress will do shortly, i.e., provide the president with the authority to do what he wants in regard to the NSA program being debated. This authority will be granted (I predict), with as great a margin as the recently renewed Patriot Act.
This is all you need to know about Gedalyia - here is what he said:
ReplyDeleteSome laws do not matter when terrorism is at stake.
Think about how sick and un-American that is. He is authortarian. Bush's authority outweighs the law.
He does not believe in America. America is a country that lives under the rule of law. No man is above the law.
Gedalyia opposes these basic values. He wants authortariaism where George Bush can break the law - he JUST SAID SO.
Based on his other comments, this is almost surely because he sits in his house watching TV, sees pictures of Arabs, gets really scared, and then with his pantiies full of pee-pee, wants Big Bush to protect him at all costs. Even it means breaking the law.
He is a coward. A weak, putrid coward. He is the opposite of what has made America great.
Hmmm. The question was whether you believe that the president's motives in undertaking the NSA program was to "protect America." Answering "yes" or "no" to this question will not render Glenn's blog a "forum on beliefs."
ReplyDeleteWhy don't you answer the question?
If you explain to me the relevance of the question, maybe I'll answer it.
Please provide a source that supports this statement, i.e., that Chaney has stated he wants "absolute power."
Clash Is Latest Chapter in Bush Effort to Widen Executive Power
Cheney and the Paradox of Executive Power
And on and on. Read up on Cheney's history, and that of those around him (Addington et al.). If you can't be bothered to understand those you are talking about, don't expect others to.
That's not what I said. I said the possibility that the NSA program goes beyond its stated purpose is very remote. There are risks in every meaningful human endeavor. There are no "guarantees." I believe the benefits of the NSA program far outway its possible risks.
Err...you admit again that you don't know. You may suspect, or believe, or hope, or guess that the possibility of abuse is remote, but you can't point to a single guarantee that it does anything that you hope it does. You don' t know about the program's details and limitations. You simply don't know if the program has any limits at all, which makes your statements about the remoteness of abuse remarkably close to religious belief.
Do you really want an ironclad "guarantee" before we engage in any kind of surveillance that to protect ourselves?
Yes. I want a law that regulates it. This isn't the Wild West anymore.
Before he was ambassador he was a State Department official (Undersecretary of State for Arms Control and International Security Affairs). His very title indicates he had responsibilities that would make him a "need to know" individual in regard to the information being uncovered by the NSA program.
For a republican, you seem to have an implicit trust on government , don't you? But since you obviously have no desire to research, I'll trhow you a bone. Try this quote for starters:
To ensure that systematic violations of the Foreign Intelligence Surveillance Act (FISA) and NSA's United States Signals Intelligence Directive 18 (USSID 18) in permitting electronic surveillance of U.S. persons on behalf of Bolton and Negroponte went unhindered, Hayden directed his Directorate of Security and Counterintelligence at NSA to browbeat any analyst or operator who showed the slightest tendency to question authority.
As you'll soon see, any questions about the program's legality will be resolved by our political leadership. What won't happen (as you'll also see), is the elevation of this political controversy into the Glenn Greenwald-described "scandal" that the bush-haters so ardently desire.
Yeah, they'll change the law to make it legal. But does it make it legal now?
Gedalyia is typical of the bedwetting right-wingers. As awful as 9/11 was it does not compare to a single day at Gettysburg.
ReplyDeleteThe American people KNOW something is wrong, that is why Bush-Nero's poll numbers are stuck at around 40% and why an overwhelming majority believe the nation is on the wrong track.
Bush is scared, so look out for an attack on Iran or another terrorist attack here.
The Idiocy of Gedaliya The Coward
ReplyDeletePerson X: "Bush got caught robbing a bank."
Gedaliya The Coward: "Why do you think he did that?"
Person X: "I have no idea. What difference does it make? He broke the law, he should go to jail."
The Coward: "But I'm sure he had a good reason for doing that. What do you think was his motive?"
Person X: "I don't know. I can only think of two possibilities: (1) he wanted the money for something or (2) he wanted the adventure."
The Coward: "What would he have done with the money?"
Person X: "I don't fucking know!! All I know is that he walked into a bank, stuck a gun in a teller's face and robbed the bank. That's against the law."
The Coward: "Well, that law was written so long ago, before there were ATM machines or drive through tellers."
Person X: "So what? It's still a law, and he has no right to break it. He should go to jail."
The Coward: "Well, I'm glad he robbed the bank. I'm sure he had a good reason and it will help make me safe."
THESE PEOPLE ARE FUCKING COWARDS WHO WANT A DADDY - WE SHOULD IGNORE THEM>
Republicans have to decide whether they are for or against the Constitution [ Click ]
ReplyDeleteIt has been suggested here that we draft a breakdown of the arguments for and against the proposition that the NSA program violates the law.
ReplyDeleteI suggested that the opponents of the NSA program draft an "indictment" of the Mr. Bush listing the alleged violations of law by this NSA Program and I would draft the defenses.
David Shaughnessy suggested the first count of this "indictment."
I would like to preface his count with the basic stipulated facts and then follow his count with a multiple part defense.
I have included a heading after each defense paragraph for the "prosecution" (that is you folks claiming a violation of law) to offer responses.
I look forward to building this summary of arguments with you...
STIPULATED FACTS:
1. Mr. Bush signed an executive order authorizing the NSA to conduct warrantless surveillance of international telephone calls between the United States and various overseas countries where one end of the telephone call consisted of a telephone number captured from al Qeada or related sources. (Hereinafter "the NSA Program").
2. Mr. Bush notified and briefed the chief judges of the FISA court of the NSA Program but did not seek warrants for the surveillance conducted under the program.
3. Mr. Bush notified and briefed the leaders of both parties in the House and Senate as well as the senior members of the House and Senate intelligence committees of the NSA Program, but did not seek any legislation from Congress to amend FISA or authorize the program.
COUNT I:
FISA makes it a criminal act to conduct domestic electronic surveillance unless it is approved by the FISA court. The Bush Administration has confessed that it has conducted domestic electronic surveillance without approval by the FISA court. Therefore, the Bush Administration has been, and is, committing criminal acts.
THE DEFENSES
A. The Constitution provides the President with the sole power to direct and conduct warrantless foreign intelligence gathering under the NSA Program.
Prosecution Response:
1. The Constitution proves the President with all the executive power vested in the federal government including the powers to act as commander in chief, Art. II, Sec. 2, to act as the sole representative of the United States in foreign affairs, United States v. Curtis-Wright Export Corp., 299 U.S. 304, 319 (1936), to protect the United States from foreign attack, The Prize Cases, 67 U.S. (2 Black) 635, 668 (1863) and to protect national security information. Department of the Navy v. Egan, 484 U.S. 518, 527 (1988).
Prosecution Response:
2. Federal courts have unanimously held that the Constitution also grants the President, as commander in chief and sole representative of the United States in foreign affairs ,the implied power of directing and conducting warrantless intelligence gathering against foreign groups and their agents in the United States. (hereinafter “warrantless foreign intelligence gathering”). See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982); United States v. Buck, 548 F.2d 871 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 916 (1974). See also In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).
Prosecution Response:
3. The activities authorized by President Bush under the NSA Program easily fall under his constitutional power to conduct foreign intelligence gathering.
Prosecution Response:
B. The Constitution does not provide Congress with the power to limit or eliminate the President’s constitutional authority to direct and conduct warrantless foreign intelligence gathering by requiring the President to seek warrants from the FISA court to operate the NSA Program.
Prosecution Response:
1. The Constitution does not provide Congress with the power to amend the Constitution to limit or eliminate the President’s Article II powers (or the Courts’ Article III powers) merely by enacting a statute. The Constitution provides for only one method for changing the allocation of powers in the Constitution – the amendment process.
Prosecution Response:
2. Furthermore, Congress was not exercising a concurrent power with the President to direct and conduct foreign intelligence gathering when it enactment FISA. For this reason, the Jackson tripartite test set forth in Youngstown Sheet & Tube Co. v. Sawyer, does not apply to the NSA Program. 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring). Justice Jackson’s test only applies to situations like that in Congress has concurrent constitutional power with the President over a particular act. For example, in Youngstown Sheet & Tube Co., the President attempted to seize a steel plant under his authority as commander-in-chief when Congress had already exerted its constitutional power in the area of property seizures.
Prosecution Response:
3. FISA appears to be an attempt by Congress to enforce the 4th Amendment requirement to obtain warrants to conduct unreasonable searches. However, it is well established that the 4th Amendment does not require the President to obtain warrants to conduct foreign intelligence. See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 916 (1974). See also In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002); United States v. Buck, 548 F.2d 871 (9th Cir.), cert. denied, 434 U.S. 890 (1977). Therefore, the 4th Amendment cannot be a source of Congress’s authority to regulate foreign intelligence gathering.
Prosecution Response:
4. Article I of the Constitution does not enumerate a power for Congress to direct or conduct foreign intelligence gathering.
Prosecution Response:
5. Congress’ power “[t]o make Rules for the Government and Regulation of the land and naval Forces” pursuant to Art. I, Sec. 8(14) of the Constitution does not imply a power to direct or conduct foreign intelligence gathering. Designating the targets of foreign surveillance gathering is an incident of military command, which the Constitution grants only to the President as commander in chief. Congress’s power under Art. I, Sec. 8(14) is limited to enacting legislation like the Uniform Code of Military Justice to ensure the order and good conduct of service members.
Prosecution Response:
6. Finally, the Necessary and Proper Clause cannot provide Congress the power to direct or conduct foreign intelligence gathering.
Prosecution Response:
a. The Necessary and Proper Clause states that Congress has the power: “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Art. I, Sec. 8(18). (Emphasis added).
Prosecution Response:
b. The Necessary and Proper Clause is merely an enabling statute authorizing Congress to enact legislation which carry into execution other Powers granted under the Constitution. This provision does not grant to Congress any additional substantive powers such as either the authority to direct or conduct the gathering if foreign intelligence or the authority to deny the President his or her constitutional authority to do the same.
Prosecution Response:
c. In his Commentaries concerning the Constitution, St. George Tucker observed about the Necessary and Proper Clause: “The plain import of this clause is, that congress shall have all the incidental or instrumental powers, necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments, or officers thereof. It neither enlarges any power specifically granted, nor is it a grant of new powers to congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those otherwise granted, are included in the grant.” St. George Tucker, 1 Blackstone's Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia Appendix 286-90 (1803). (Emphasis added).
Prosecution Response:
d. The argument that the Necessary and Proper Clause is itself an enumerated power which gives Congress the power to enact statutes to limit to eliminate the President's Article II powers is simply untenable. The only means provided in the Constitution to change the document is the amendment process. To allow Congress enact statutes to limit or eliminate the President's Article II powers (or the Court's Article III powers) would essentially reduce the other branches of government to nullities and destroy the concept of separation of powers.
Prosecution Response:
C. Even if the Constitution did provide Congress with the power to enact FISA to regulate the President’s power to gather foreign intelligence, Congress waived FISA regulation of the NSA program by enacting the 2001 Authorization for Use of Military Force (AUMF) against al Qeada and its allies.
Prosecution Response:
1. In the preamble to the AUMF, Congress recognized that “the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States.”
Prosecution Response:
2. In Section 2(a) of the AUMF, Congress authorized the President “to use all necessary and appropriate force against those nations, organizations he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.”
Prosecution Response:
3. The expansive language of the AUMF clearly allows the President to use the fundamental incidents of military force, even if such incidents are not individually described by the AUMF. Hamadi v. Rumsfeld, 542 U.S. 507, 519 (2004)(holding that the AUMF authorized the President to hold enemy combatants).
Prosecution Response:
4. Warrantless gathering of intelligence on the nation’s enemies, foreign or domestic, has been a necessary and fundamental incident of the President’s use of military force since the dawn of the Republic. For a good summary of this history, see LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT, p. 14-17 (DOJ January 19, 2006), http://files.findlaw.com/news.findlaw.com/hdocs/docs/nsa/dojnsa11906wp.pdf.
Prosecution Response:
5. Therefore, the AUMF amended FISA to permit the President to direct and conduct foreign intelligence against al Qeada, its allies and agents under the NSA program.
Prosecution Response:
a. It is a basic tenet of resolving conflicts between statutes that the latter enacted statute generally controls the earlier enacted statutes. Thus, the AUMF’s authorization of the President to conduct warrantless foreign intelligence gathering would control over any FISA restrictions of that function.
Prosecution Response:
b. Congress intended FISA to be amended by later legislation. FISA prohibits any person from intentionally “engag[ing]…in electronic surveillance under color of law except as authorized by statute.” 50 U.S.C. § 1809(a)(1). AUMF is just such a statutory authorization.
Prosecution Response:
gay veteran says:
ReplyDeleteBush is scared, so look out for an attack on Iran or another terrorist attack here.
Hmmm. Do you believe George Bush staged 9/11?
Bart...
ReplyDeleteTerrific, fabulous work.
Let's see if anyone is up for the challenge.
The question was whether you believe that the president's motives in undertaking the NSA program was to "protect America."
ReplyDeleteI don't think the Iraq war was to protect America. Since Bush lied* to my face on that matter, why should I trust him on this?
He probably broke the law for some short-sighted, stupid political reason, like Nixon did. I don't think this administration is any smarter than Nixon's; in fact, it's a lot of the same crowd.
*Before you nitpick "lied", if a friend had used similar rhetoric and logic as Bush did to push the Iraq invasion, to convince me on some smaller matter, I certainly would have felt equally deceived. Whether or not it is a legal falsehood could be debated, but I was misled. How much more so when the lies amount to the ruination of the economy and the deaths of thousands.
There are some very clear patterns in the excuses not to investigate the NSA issues: None of them are compelling: [ Click ]
ReplyDeleteThe interesting thing to note is how the arguments have shifted from legal excuses/justifications to simple assertions that "we don't need to know."
How can a legal defense work if they have no facts?
prunes says:
ReplyDeleteHe probably broke the law for some short-sighted, stupid political reason, like Nixon did. I don't think this administration is any smarter than Nixon's; in fact, it's a lot of the same crowd.
He hasn't broken the law (see Bart's entry above). Moreover, I don't believe a single Bush Administration offical was in the Nixon Administration (I could be wrong here on one or two, of course), but in any case, your claim that "it's a lot of the same crowd" is an....exaggeration. (I wouldn't presume to call it a "lie").
George Bush did not "lie" about Iraq. The war was then, and remains now, a moral imperative for our nation. You don't agree about this, but neither you nor any Democrat has a proposal to do anything about it.
You hate George Bush, with a passion that is...abnormal, so please forgive me if I take your criticisms of his policies with a grain of salt.
Some potentially worthwhile defenses are outlined above by bart, among some rather less plausible arguments.
ReplyDeleteWhy, then, would the administration has advanced the radical Yoo philosophy, when there are a myriad of more legally plausible defenses against the accusations of misconduct?
It is clear they would like to set a precedent here, the precedent that Congress cannot restrict the Executive in any way. Or at least not during an eternally extended "wartime".
If the legality of the program was their sole concern, they would not have made these "inherent authority" arguments. They are either desperate (and I don't think they are just yet) or they are making a power-grab.
If they try the Yoo defense before the court, they will be shot down immediately.
“Actually, Bush would lose, almost certainly...9-0”
ReplyDeleteHypatia is being a good attorney for the side of this issue that he/she clearly represents. With the voluminous quotes of Judge Jackson, she has left out the one test on which this whole issue of the case turns. Why has she done that? It is as if she represents someone for running down a pedestrian and she quotes a judge’s ruling about the right of all Americans to own and operate motor vehicles so long as they obey all posted speed limits – and leaves out the part about blind pedestrians with white canes. Can we assume from this selective quote of the other case that the issue in her case is whether or not the pedestrian her client ran down had a white cane? Pretty easy, huh?
She quotes most of the Youngstown Steel case ruling and leaves out the test on the basis of which the case was decided! So if you have, being fair-minded, read all of her quotations, considered them and come to a conclusion, it can only be that Bush is wrong! 9-0!
That is why we have attorneys on both sides. In a real case, the prosecutor reads the case she cited and informs the judge that the prior judge ruled that when the pedestrian has a white cane, the driver must avoid them and justice is done.
Our case with Judge Jackson is not as black and white. However, had Hypatia cited the ruling correctly you would see that it is far from clear that Bush is wrong and much more likely that the ruling would be 5-4 if not 9-0 the other way. Shame on you Hypatia for attempting to mislead these nice folks.
"The war was then, and remains now, a moral imperative for our nation."
ReplyDeleteThis nonsense distills your proto-fascism perfectly.
You don't agree about this, but neither you nor any Democrat has a proposal to do anything about it.
ReplyDeleteBoy, am I sick of this. I've never voted for a Democrat for any office on the local, state, or federal levels.
I am a Republican who is outraged at the betrayal of the party's core values by this administration and this Congress.
And I do have a proposal: when you're in a hole, quit digging.
notherbob2 claims: She quotes most of the Youngstown Steel case ruling and leaves out the test on the basis of which the case was decided! So if you have, being fair-minded, read all of her quotations, considered them and come to a conclusion, it can only be that Bush is wrong! 9-0!
ReplyDeleteNot just my conclusion, but Orin Kerr's as well. My only difference w/ Prof Kerr is that he thinks Bush would lose 8-1, while I think even Thomas would rule against Bush, for reasons I have set forth and supported.
I've quoted Jackson's test language before, including here. And so has Glenn. Kerr has parsed it. We all know Bush would lose per that test.
That's why you see John Hinderaker ridiculing Jackson's Opinion, and is also why Andy McCarthy at NRO has declared the Courts cannot bind Bush on this issue. Some here too seem to be adopting that last position as well.
Jackson's Youngstown Opinion is fatal to Bush; Hinderaker and McCarthy know it, and so they want both it and the courts to be ignored.
Tell me, if the High Court were to rule as Kerr and I say it would, do you think Bush should ignore that ruling?
It's clear that the Congress isn't serious about the rule of law -- they're sweeping the NSA matter under the rug.
ReplyDeleteThe State proclamation efforts are picking up steam. Here is a link you can use to start discussions in the blogosphere, at your local government meetings, the media, and with state officials: [ Click ]
Here are sample successes: [ Click ]
And more detailed information on local efforts: [ Click ]
Keep reminding people:
A. The RNC cannot bury a state proclamation in committee;
B. It only takes one proclamation from one state to force a vote on impeachment.
. . .
State Proclamations trump the RNC.
The RNC asserts a flawed assumption: They want the RNC membership to believe the RNC -- because it controls Congress -- does not have to vote on impeachment; when the RNC leadership realizes they have to commit – up or down – you’ll see more defections to vote for impeachment.
The RNC members in Congress will know they have to vote to assert the rule of law, or they will have a major problem back home: Why despite the glaring problems/violations did they choose not to find facts?
The RNC voters will have nine months to digest facts and make adverse inferences about the current RNC members of Congress.
Motive is a tool to establish guilt. In this case ,by admission, we know that the President is spying on Americans.
ReplyDelete"Spying on Americans" is not a crime, so what, exactly, is this "guilt" you're speaking about?
Maybe gedaliya and the New Republicans are right. Socialism probably is the only defense our country has against terrorists.
ReplyDeleteI was raised to despise socialist politics, but maybe times really have changed.
I've read the bantering back and forth on the case law, and remain unconvinced that the Bush legal team has a clue.
ReplyDeleteHere's a sample case -- a single one -- that strikes down every argument they've made Click.
The case shows there's no such thing as "inherent authority"; and that the conduct has to be within the laws.
If that isn’t enough, here's the long list of cases cited to justify what was done -- and why they fail. [ Click ]
Then to completely turn things upside down, here's case law showing the White House staff and civilian leadership in DoD are liable for war crimes and could be prosecuted for the frauds committed over passing AUMF, and the unlawful invasion. Hitler had "good reasons" -- none of them legally valid, as is today. [ Click ]
The problem isn't simply that the President violated the law, but the very legal arguments and authorities he relies on -- the AUMF -- is unconstitutional. [ Click ]
Here's the bottom line: The RNC leadership, members, and legal-apologists need to decide: Are you for or against the Constitution? [ Click ] If you are for the Constitution, remove yourself from this ongoing rebellion against the Constitution.
Even the most naive voter can see that the RNC has no legal defense, or a credible argument to justify what is going on: Non-sense excuses to violate the law. [ Click ]
It's only been a few short weeks since the NSA article in the NYT, but we already know the JTTF and NSA knew the targeting was a waste: They were using couriers. [ Click]
Everything the legal community is saying is utter non-sense: Excuses why things do or do not apply. Face it: Your man has violated the law; has admitted so; and all you can do is spew forth legal non-sense. Your cause is lost. Let's move on and solve this problem with a new leadership crew that has as much interest in the law as you do.
"Do you believe George Bush staged 9/11?"
ReplyDeleteHardly. It took an evil GENIUS. I suspect Lex Luthor myself, and his buddies.
Don't you think some of the conspiracy theories might die down if some of the people SUSPECTED of being behind the plot were put on OPEN TRIAL; and, well, they'd have to be convicted as well...
But of course, that sort of thing - innocence until guilt is proven and so forth - only happens in your pre-9/11 world.
shorter Bart (and gedaliya): on 9/11 I wetted my pants but I'm too much of a yellow elephant to actually enlist, so when Bush says "trust me" then I do.
ReplyDelete"trust me"! yeah, like I'll do that after Iraq and Katrina.
Our Founding Fathers did not place UNchecked executive power in the hands of the president. Period.
Sorry for having a post-1776 mindset.
gedaliya: "Do you believe George Bush staged 9/11?"
ReplyDeleteIt indeed did take an evil genius, it also took a competent one. Gee, in view of Iraq and Katrina that certainly rules out the Bush-Nero regmine.
If you're going to advocate for UNchecked executive power at least make sure we have a competent executive.
ReplyDeleteSorry for having a post-1776 mindset.
I shall be shamelessly plagiarizing that.
Your last comment is a pretty good summation. It doesn’t, as we both know, matter what I think about that. I haven’t put in the time to have a valid opinion one way or the other. However, I can clearly see the flaw in your presentation here. I don’t wonder that you have quit quoting the test; when you do quote it a good portion of your target audience, who may entirely agree with the finding in the Youngstown case, will see the difference between that case and the current issue and go the other way. If the court found against something the President felt was necessary to protect the nation and based their ruling on “penumbras” and “emanations” then I think he should tell them to go to h*ll. Otherwise, he is bound to obey their ruling.
ReplyDeleteI don't believe a single Bush Administration offical was in the Nixon Administration [...]
ReplyDeleteGeez. Look it up yourself. You don't even know who you are making excuses for.
You will recognize more than just a couple names. Determine for yourself whether it is an exaggeration.
Bob Barr, patriot.
Ugh, Constance, if I were you, coming from where you apparently are, I would avoid the phrase "move on" in my comments.
ReplyDeletenotherbob2 puzzlingly insists: However, I can clearly see the flaw in your presentation here. I don’t wonder that you have quit quoting the test; when you do quote it a good portion of your target audience, who may entirely agree with the finding in the Youngstown case, will see the difference between that case and the current issue and go the other way.
ReplyDeleteOk, I really don't get it. I haven't "quit" quoting the test; it wasn't the most relevant language to the discussion in this thread, but I've certainly quoted it before.
But if you disagree, please quote the exact language from that test and elaborate as to how the language you choose would vindicate Bush's legal arguments.
Also, do you agree with John Hinderaker that Jackson's Opinion is "silly"?
As to this:If the court found against something the President felt was necessary to protect the nation and based their ruling on “penumbras” and “emanations” then I think he should tell them to go to h*ll. Otherwise, he is bound to obey their ruling.
So as long as the High Court did not use the words "penumbras" and "emanations," you believe Bush should obey it if it ruled against him? Do you find those terms in Justice Jackson's Youngstown Opinion? Are there any other words the Court could employ that would cause you to believe it need not be obeyed?
To paraphrase Marlon Brando in "The Wild Ones" "Whad words d'ya got?"
ReplyDeleteIf it isn't in the Constitution it isn't law and there are no "penumbras" or "emanations" in there. I have poked a hole in your argument, that is the best that I can do. If anyone cares to, they may find learned argument on the other side elsewhere. Merely from the fact that you keep pointing us in the direction of Mr. Hinderaker, I presume that his argument is very weak. I would, therefore, look elsewhere if I wanted such an opinion.
If it isn't in the Constitution it isn't law and there are no "penumbras" or "emanations" in there. I have poked a hole in your argument, that is the best that I can do.
ReplyDeleteWell, do you believe there is a fundamental right to travel? Do you believe that parents have a fundamental right to educate their children and so the state may not require that kids attend public -- and not private -- schools?
You are deluded if you think you have poked any holes in my arguments; you've done nothing but make assertions that you cannot back up with any actual language from Jackson's Opinion. Would that all those who poke holes in my arguments were so "effective."
l) Do NOT go to Volokh Conspiracy, Dutch Law Student, or anyone else. I know the site very well, having followed it daily for the last three months. It is a very pernicious site. Orin Kerr, a careerist with no guts, and a mouthpiece for the Federalist Society, attempts to keep libertarian readers on his site by pointing out, faintly, POSSIBLE arguments against the government's intrusive policies. These arguments are not persuasive to Orin himself, however, who supported Alito vigorously, and who refuses to actually criticize any of the policies he so disingenously makes mention of in his posts, trying to play both sides against the middle.
ReplyDeleteTo say "Orin Kerr" in the same breath as "Glenn Greenwald" is really a tremendous insult to Glenn, who is a true patriot who goes where the facts lead, regardless of consequences to his own political, or other, career, because he has a passionate concern for preserving the Rule of Law that made this country great.
Having lost legitimate readers because of the increasing dishonesty and inanity of the site (they link to gay sites threatening to out Republican closeted Senators and they are thrilled by frivolous sites like Wonkette and Underneath Their Robes), VC has been taken over by a bunch of silly, teenagers with some books by their side from which they lift quotes, and they debate back and forth endlessly arguing about how many angels can dance on the head of a pin. Junkyard Dog (So says The Dog), one of their frequent posters, is representative of what goes on there.
Everyone intelligent gets the "joke" but not Orin, who responds to them as if they were legitimate commenters.
Orin has yet to take a principled position on ANYTHING on that site. He is too concerned about preserving the possibility that he himself will be named to the Supreme Court, or advance in Conservative Republican circles, if these thugs remain in power indefinitely.
Moreover, although Orin Kerr was repeatedly requested by a number of commenters to link to Glenn's site, he has yet to do so. Now, it appears since this site has become such an instant success and VC has been reduced to five or ten commenters amidst the teenage pranksters, "someone" is coming over here setting up phony questions "Are there any other legal sites?", and yup, as I suspected the minute I read that trollish question, up pops VC, who refuses to even include this site on its long list of links.
Orin, a fan of John Yoo, was one of the very first people on the Internet to speak out when the NSA debate first surfaced, and his immediate conclusion was that it is not, in fact, unconstitutional, although he admitted it might be illegal.
2)"In the case Alito ruled on, the question was not whether such a search was good or bad policy"
This statement, which has been put forth vigrously and endlessly by Bushco and the lunatic far right fringe members of the religious Christian Conservative movement, is 100% wrong.
The case was, in fact, a narrow case having to do with whether the Fourth Amendment's requirement that the warrant itself, signed by an impartial Magistrate, should include the names of all who can be searched, as opposed to the accompanying affadavits supplied by the Police who want to do the search. Obviously, it should, as the majority decided, despite Alito's dissent.
However, in that dissent, Alito went far beyond that narrow topic. He stated that since a drug dealer might hide drugs on a child, it was, therefore, a SAD BUT INEVITABLE, and moral, and acceptable fact of life in Alito's America that children could be strip seached if the police were looking for drugs.
That includes children who are visiting the site who have no connection with the alleged drug dealer, etc. A girl scout selling cookies at the door who was invited inside, and was there when the Police entered, could be strip searched.
Alito MORALLY SANCTIONS the practice. He does not remain neutral on the practice, limiting himself in his dissent to addressing only whether the warrant was defective. HE GOES OUT OF HIS WAY TO APPROVE OF THIS PRACTICE AS A NECESSARY COMPONENT OF THE "War on Drugs." You know, those "Wars" which keep popping up and which obviate the Fourth Amendment and other crucial parts of the Constitution.
Hypatia, you seem predisposed to argue, yet you haven't quoted the test. Anxious readers want to know. What is the test? You obviously think that I don't know it. I do. Hint: "exceptional".
ReplyDeleteSo no gotcha on that one. Keep trying. I'm really very easy if you put your mind to it.
OK, so you are not so good on your feet or you are having a bad day. I give you back your last comment (or maybe I missed how it nailed me and you can elaborate on how it did that).
ReplyDeleteIt's fun to cross swords, but there is a serious issue here. Niver mind who is quicker, that is not important. We must be right in the long run. Correct?
michaelgallian,
ReplyDeleteThanks for your responses here and on the other blog. I appreciated them. I would be interested in having those pdf's. I suppose I can't think of a way to get you my email. So I'll type here: special_bulletin at hotmail.com (spammers! Don't waste your time spamming me, I have 3000 unread emails there and no intention of opening them!)
OK. The old "I have a life" response. Well, so do I. 'Till we meet again.
ReplyDeletegedaliya really is an ass...
ReplyDeleteDoesn't know what he is talking about, but really gave himself away with the misinformation about no one from chimpy's administration being a holdover from nixon.
"Go F#CK YOURSELF" cheney and rummy rumsfeld come to mind...
The wheels are coming off when your trolls can't even get basic facts straight
In response to Bart's post:
ReplyDeleteThe American Bar Association has provided a substantial response to this administration's defense of warrantless searches--including many of your points.
http://www.abanews.org/docs/domsurvrecommendationfinal.pdf
And by the way. What's next? Having our internet searches subpoenaed? Oh yeah, the DOJ has already started the process- albeit in regards to porn--but they're setting a precedent.
notherbob2: If you want to quote from and discuss Justice Jackson's test, do it. That's been done here already, but go for it. Do show me what I supposedly failed to disclose that would turn it all around for the readers. (But before wasting everyone's time, you might first search this site and read Glenn's several discussions of that Opinion, and you will find that he and I engaged in a rather lengthy dispute as to the exact meaning of Jackson's Category III test, tho we did not disagree as to what result would flow from it for Bush.)
ReplyDeleteI don't know what you mean with your "hint," so please quote from the Opinion and set forth an actual argument. Until you do, you are blowing smoke; I've supported my arguments with quotes from Youngstown and reliance on same in Thomas's Hamdi dissent. You have not so supported your arguments.
Anon going on about Volokh: You are seriously off-track. Among other things, Kerr has linked to Glenn, at least twice.
Kerr's position is that the the NSA program does not violate the 4th Am, and there is relatively strong case law support for that. He nevertheless concludes that the program is illegal, for violating FISA, and therefore per Youngstown says it would fall in the SCOTUS.
Are you confused by the above given and take; maybe you have missed the hidden message. The RNC's defenses and statements are absurd.
ReplyDeleteBut there's a way to analyze them. Here's how: [ Click ]
Here's a sample overview of the problem the NSA has: If they convince others to ignore the criminal conduct, what is to prevent the conduct from occurring in other areas? [ Click ]
All you have to do when interacting with the RNC is remember one thing: They are wrong.
I address Glenn, David Shaughnessy,constant, thersites, and those who identify in essence with their point of view on this NSA illegal domestic spying issue.
ReplyDeleteThere is a new class of "troll" which has appeared in the last few months on the blogs, and we have witness of three or four now on this site, including gedaliya and bart.
I bring this up because I think it would be a tragedy if Glenn lets these trolls subvert the purpose of this site and accomplish their sole, cleverly crafted goal.
They are not interested in what anyone has to say, nor do they really care if they convince anyone of their arguments, which they know they will not.
They work for various levels of this administration, and they are part of the propoganda machine: their instructions are to go to the best sites where it appears that lawyers and other informed, intelligent people are beginning to gather to form coalitions of committed, non partisan patriotic citizens in whose lives, for one reason or another, it has become a priority to fight to preserve the Constitution and the Rule of Law which are the foundation of our nation.
They have only one goal: to distract people from taking productive action by seducing them into wasting time addresssing the trolls' infuriatingly specious, and often transparently ridiculous arguments.
The more people debate them, the more empowered they become, because they realize they are succeeding in their only goal: to undermine, distract, and render ineffectual the growing pockets of effective resistance.
How many here have gone and signed the Feingold petition? How many have sent it out to their friends, and asked their friends to send it to their friends? This man is the only person who saw way back when the Patriot Act was first introduced what it would lead to. There isn't a person on this site, including the host, who was as prescient as Feingold was. Read his statements from that time. He outright said its passage would be the vehicle through which the attempt to start stripping people of their civil liberties would be acheived.
I am not a partisan Feingold supporter. His inability to understand why progressive taxation is harmful, not helpful, to the causes about which he cares, and other anti-capitalistic positions he has adopted during his career are antithetical to my belief system.
But right now, right here, in this present fight, he is a highly visible voice on the same side as we are, and he must be supported in those efforts if we are serious about wanting to become a powerful enough coalition that we dominate the debate and land up winning it.
I urge the host of this site, who appears to me to be unusually intelligent and insightful, as well as being capable of the subtlety of thinking necessary to plumb the psychological nuances behind the various actions of various individuals and groups, to give considered thought to what I am urging here, and to instruct his serious readers to scroll past the entries of these trolls without responding to them, so we can spend our joint time acting in a united fashion to do what we can to win this most important of all battles: the preservation of the Constitution.
If Glenn chooses not to do that, can he please explain how he, someone who has quickly emerged as a leader in this effort, believes that the time spent debating these trolls is in anyway advancing the cause that Glenn has now adopted as one of his primary focuses.
Leaders must lead. They have to be quick to detect when the enemy has infiltrated the barracks and is seeking to undermine and distract the troops. Leaders must deal with that threat swiftly, firmly and appropriately lest they let their efforts get hijacked by those who are against their ideas, values, principles, and convictions.
One last thought. Being a strategist, I understand the possible appeal of letting more and more posters appear on this site. The number of posts and the amount of activity are ways to announce that an important blog has appeared on the landscape, and to ensure that it gets more and more widely read, which is what we want, since Glenn is saying such critically important things.
If these were less important issues, and time was not of the essence, as it is regarding these critical matters, I could go along with that approach.
But it won't work here. The more the "trolls" are allowed to steer the debate, the more time they waste, the less respected the site will become and the more people will come to view it as just another tiresome back and forth between warring camps.
As that is their goal, why let them succeed?
"Anon going on about Volokh: You are seriously off-track. Among other things, Kerr has linked to Glenn, at least twice."
ReplyDeleteI am not seriously off-track. I am spot on. Kerr linked to Glenn when Glenn first appeared on the landscape, before he realized what an effective weapon Glenn would become in this fight against the current administration's policies.
After that, despite some staggeringly important posts that Glenn has written in the last week or so, Orin Kerr has chosen to ignore those.
Despite repeated requests by his own commmenters, who discovered Glenn's site, Orin has resisted putting Glenn's blog on his blog roll. Anyone can go look at the lists of blogs on Orin's site, including some decidedly frivolous blogs. Is Unclaimed Territory there? No.
The defense rests.
Orin Kerr is a closeted apologist for this Administration. He's dishonest, which is why I speak out against him. Hiding behind a cloak of non-partisanship, he is fact is anything but, yet he is too duplicitous to just come out and say so. And he can't stand the competition from a free thinker like Glenn Greenwald.
I almost fell off my chair at 3 PM today when I happened to turn on CNN to witness an hour long investigatory piece on CNN Presents called DEAD WRONG.
ReplyDeleteI thought I was dreaming. It was a brutal, fact-filled, forceful, scathingly critical analysis of how this country was deliberately deceived into supporting the invasion of Iraq.
This is the first time I have seen anything on the MSM that comes right out and says that the administration calulatingly and intentionally lied to the American people, cherry picked knowingly suspect information to build a case for a war they were determined to wage despite knowing that the WMD was a lie, and sent out their corrupt minions to take their knowingly fraudulent analysis to the American People.
Colin Powell and Condi are portrayed as corrupt, weak individuals who were not able to "speak truth to power", and were bamboozled into going along with all the lies to protect their careers.
George Tenant is portrayed as a corrupt, evil person who went along with the deceit. Later, in their typical gambit, the administration falsely leaked that there was a split between the Intelligence Community and the Administration, and Tenant resigned (the sight of Bush later decorating him with a Medal of Honor is really upsetting, sort of like paying off Judas for his betrayal). That was all a smoke screen. They were hand in hand in the plot to deceive Americans and, through Powell's UN speech, the rest of the world.
I hadn't even known that the entire case for weapons of mass destruction was based on the knowingly suspect data of a person called Curve Ball, so named because he was known to all to be a liar.
The person who analyzed the pipes and said they were being used to create weapons of mass destruction, instead of rockets, which turned out to be the reality, was someone with little expertise in the field, and nobody checked his sophomoric, and inaccurate, analysis.
It is an unbelievably scathing indictment, and indicates to me that CNN, despite Wolf Blitzer, is not going to be a mouthpiece for the adminsitration any longer. I believe they will become an ally in the battles we now face.
This program is to be repeated, I think, at 11 PM EST, and I urge Glenn and everyone else to either watch it, or get the transcript. It will knock your socks off.
From Glenn's post on Crooks and Liars:
ReplyDelete"Patrick Cockburn, Middle East Correspondent for the British newspaper The Independent:
Iraq is disintegrating. The first results from the parliamentary election last week show the country is dividing between Shia, Sunni and Kurdish regions. Religious fundamentalists now have the upper hand. The secular and nationalist candidate backed by the US and Britain was humiliatingly defeated. . . .
Islamic fundamentalist movements are ever more powerful in both the Sunni and Shia communities. Ghassan Attiyah, an Iraqi commentator, said: "In two and a half years Bush has succeeded in creating two new Talibans in Iraq." . . .
Iran will be pleased that the Shia religious parties which it has supported, have become the strongest political force. . . . "
And China gets 100 billion dollars worth of Iran oil.
It's not bad enough that the administration is made up of corrupt, cynical liars who have cost tens of thousands of lives in their evil, misguided adventures abroad and who now seek to strip us of our civil liberties at home,
but the fact that they are as bumbling in their efforts as the Keystone Cops is really more than one can bear.
If Cheney/Bush/Addington/Libby/
Condi/Rumsfeld,and the Goddess of Neocon Lunacy were working directly for Iran, they could not be doing a better job of promoting that country's interest.
Anon re: Volokh:
ReplyDeleteI could not disagree more. Glenn's most "staggeringly important" posts were not written in the past week. Those which were, Kerr linked to, namely, (a)the one demonstrating that Bush is not in compliance with FISA, contrary to early claims of Bush defenders, and (b) Glenn's scoop about the Dewine amendments to FISA that the Administration rejected.
This week Glenn posted about the federal court ruling that the DoJ must comply with a FOIA request from the Electronic Privacy Information Center; Kerr wrote about that independently.
If Orin Kerr is a shill for the Bush Administration, he is a deeply, deeply closeted one who does such outre things as opining that Bush's warrantless surveillance program would lose in the SCOTUS. Let me assure you, that opinion has caused discomfort among many Bush supporters.
Kerr is under no obligation to link to Glenn every week, notwithstanding a legion of Greenwald fans in comments demanding that he do so. If some sort of campaign is afoot in that regard, well, if it were me, that would make me NOT link even if I otherwise wanted to.
In any event, if you want to see lawyers shilling for Bush, go read Hewitt or Powerline. In the meantime, I will continue to read Volokh, and would bet Glenn will, too, since he sensibly has VC listed as a blog he reads.
So “annonymous” says that the “trolls” should be eliminated and this site should become “all propaganda all the time” . Well, since that is its purpose I can see how that would be a good thing. In fact, I have been surprised that “trolls” (other-than-fever-swamp-folks) have been allowed. Good idea to eliminate them. Then, like Kos, this site can generate the enthusiasm (hysteria) that will maximize the contributions to the cause.
ReplyDelete"If Orin Kerr is a shill for the Bush Administration, he is a deeply, deeply closeted one who does such outre things as opining that Bush's warrantless surveillance program would lose in the SCOTUS. Let me assure you, that opinion has caused discomfort among many Bush supporters."
ReplyDeleteFirst, I agree he is closeted. That was my point. Orin Kerr addresses the narrow point of NSA'a program being in violation of FISA as now written. If FISA is rewritten to authorize Bushco's present and prior policy of spying without warrants on American citizens, that would satisfy Kerr. He does not believe the program is unconstitutional, and therefore would not argue that the SC would so find.
Go ask Orin if he thinks the program is l)unconstitutional, 2) wrong, 3) a violation of civil liberties.
Go ask Orin if he thinks that we are headed toward dictatorship with this radical claim to limitless powers in time of "war" by the Executive Branch.
Go ask Orin if he condemns Yoo's advice to the President on the issue of torture.
Go ask Orin if he thinks the President has the right to continue with the program if FISA is amended. Ask him, but you won't get an answer, as Orin Kerr never addresses normative issues.
"In the meantime, I will continue to read Volokh, and would bet Glenn will, too, since he sensibly has VC listed as a blog he reads. "
Not only do you read VC, but you are one of those posters who writes incessently about meaningless issues of interest only to law students with excess time on their hands. I recognized you in your debut performance on this site.
The fact remains that this blog is not on the blog roll of VC, and I, for one, doubt that if Glenn, who probably doesn't have the time anyway, were to follow VC for a bit, he wouldn't read it anymore.
There's the BIG PICTURE, and the little picture, and VC evades the BIG PICTURE while wallowing in every little, insignificant picture that someone takes on his cell phone, so to speak.
Please stop using this site to promote VC. People would spend their time more productively on Crooks and Liars, Anonymous Liberal, and other serious, independent sites that are concerned with the same issues that Glenn addresses.
David Shaughnessy said...
ReplyDeleteHi Bart:
Not to begin quarrelsomely, but I must say that I cannot accept your stipulated facts. You claim the following as givens, but as my brief comments will demonstrate these "facts" are little more than speculation.
1. Mr. Bush signed an executive order authorizing the NSA to conduct warrantless surveillance of international telephone calls between the United States and various overseas countries where one end of the telephone call consisted of a telephone number captured from al Qeada or related sources. (Hereinafter "the NSA Program").
I have no idea what the warrantless domestic spying program entails, and, with apologies, neither do you. That's why an invesigation is needed.
This is what the press is reporting and what we have to work with.
However, the leakers probably have mislead the press to a certain extent...
After she was briefed on the program, the senior Dem on the House Intel Committee told the press that the program had nothing to do with "domestic spying."
BTW, if you don't know the facts, exactly how do you know that Mr. Bush has violated any law?
2. Mr. Bush notified and briefed the chief judges of the FISA court of the NSA Program but did not seek warrants for the surveillance conducted under the program.
I have no idea what the FISA briefings entailed, and, with due respect, neither do you. We do know that one of the FISA judges resigned upon learning of the warrantless domestic spying program. We also know that the FISA court has indicated that it will not accept evidence secured via warrantless domestic spying program. That's why an invesigation is needed.
How would any judge on the FISA panel be able to judge whether to accept the evidence or not unless they knew how the evidence was obtained?
3. Mr. Bush notified and briefed the leaders of both parties in the House and Senate as well as the senior members of the House and Senate intelligence committees of the NSA Program, but did not seek any legislation from Congress to amend FISA or authorize the program.
Once again, neither I nor you have any idea what the Congressional notifications entailed, other than that they were (improperly) limited to 8 people, and that all 8 were sworn to absolute secrecy. That's why an invesigation is needed.
There hasn't been a single member of the intel committees who have received briefings on the program who claim that they don't understand what the program entails.
Not as single one of these briefed members opposes this program.
The only thing the Dems have asked specifically to investigate are the internal deliberations of the Justice Department in order to identify some dissenting lawyers to play a childish game of gotchya.
Exactly what do you propose be investigating?
Turning to the legal arguments, you proffer two defenses to the Bush Administration's crimes: first, that FISA is unconstitutional; and, second, that the AUMF excludes the Bush Administration's warrantless domestic spying from FISA.
As for the constitutional argument, I won't address that since no one in the Bush Administration has even suggested that FISA is unconstitutional.
Try reading pages 28 through 36 of the Justice memo to which I linked. Justice argues the principle of constitutional avoidance requires that the courts should apply the AUMF to amend FISA in order to avoid finding that FISA unconstitutionally interferes with the President's powers.
Turning to the AUMF, my response is this: even the Republican Senators on the Judiciary Committe have openly skoffed at this argument. Perhaps you should first argue the point with them.
Who cares? Once again, the intent (or cluelessness) of individual legislators is utterly irrelevant. The only thing that matters is the text of the AUMF, which is as expansive as the Pacific.
You may have noticed that I reversed the Justice arguments. Being that I have no political interest in avoiding a fight with Congress, I went straight for the legal jugular and showed why FISA is an unconstitutional power grab by Congress to the extent that it applies to intelligence gathering on foreign groups and their agents. The case law is completely on my side in this argument and there is really no reason to rely on the AUMF. I only presented it as a fall back argument.
If you have time, I would enjoy reading a point by point rebuttal inserted by each of my defenses supported by any precedent you can find...if you can find any.
Anonymous said...
ReplyDeleteIn response to Bart's post:
The American Bar Association has provided a substantial response to this administration's defense of warrantless searches--including many of your points.
http://www.abanews.org/docs/domsurvrecommendation
What legal argument? Dude, this is a list of six demands which are mirror images of the DNC talking points. This BS is why I have never joined the ABA.
Anonymous said...
ReplyDeleteI address Glenn, David Shaughnessy,constant, thersites, and those who identify in essence with their point of view on this NSA illegal domestic spying issue.
There is a new class of "troll" which has appeared in the last few months on the blogs, and we have witness of three or four now on this site, including gedaliya and bart.
:::heh:::
OK, I have been called a nazi, stooge and tool, but "troll" is a new one...
Sticks and stone, boys and girls.
I bring this up because I think it would be a tragedy if Glenn lets these trolls subvert the purpose of this site and accomplish their sole, cleverly crafted goal.
I thought this place welcomed reasoned debate? Maybe the self proclaimed defenders of free speech would prefer an echo chamber?
They are not interested in what anyone has to say, nor do they really care if they convince anyone of their arguments, which they know they will not.
I have politely spent hours ignoring your name calling while answering your challenges in an attempt to educate you on the law. Perhaps that effort was in vain. Whose fault would that be?
They work for various levels of this administration, and they are part of the propoganda machine: their instructions are to go to the best sites where it appears that lawyers and other informed, intelligent people are beginning to gather to form coalitions of committed, non partisan patriotic citizens in whose lives, for one reason or another, it has become a priority to fight to preserve the Constitution and the Rule of Law which are the foundation of our nation.
Please...
To quote a pretty good band:
Paranoia will Destroya!
Please stop using this site to promote VC. People would spend their time more productively on Crooks and Liars,
ReplyDeleteI would not spend a nanosecond at Crooks and Liars, short of the very few times I have gone there to read Greenwald. Like Orin Kerr, I am a libertarian, and there is too much at C&L which offends those sensibilities. Further, other than Glenn, the writing there impresses me not. (And in my view, Glenn dumbs down when he posts there.)
You are anonymous, but you claim to have read me since my "debut" here. Really? Who are you?
I don't care whether Orin Kerr addresses "normative" issues often enough to suit you; he's a sedate law profesor more than a political activist. But he linked to the Will column attacking Bush. He has linked to Glenn's best legal and political catches. He will do that again.
If you want pure political activism, fine. But it was requested that we recommend legal blogs where lawyers chat about the law. VC qualifies as that many times over; Glenn reads it himself; it is on Glenn's blog roll; VC has linked to Glenn.
Finis.
"I almost fell off my chair at 3 PM today when I happened to turn on CNN to witness an hour long investigatory piece on CNN Presents called DEAD WRONG."
ReplyDeleteHmmm, I tuned into the "repeat" (9 Mountain Standard Time) and it was a program about Katrina...
brambling: I know. I am sorry. The "info" in the guide didn't state what the subject matter was, and the early CNN report was called DEAD WRONG was about manufactured intelligence data to justify invading Iraq. I saw that the later show was a Katrina report. Too bad, as DEAD WRONG was a real departure from anything which has been on television thus far about the events leading up to the war.
ReplyDeleteA "troll" is an entirely different species than a person with a different point of view interested in debating the subject at hand and exchanging ideas. Most conversations are enriched by the weighing and exchange of various positions.
ReplyDeleteThat is not the raison d'etre of "trolls." They are strategists bent on disrupting and ruining sites which they, or their advisers, deem to be threats.
They ask a lot of questions, to make others waste their time composing pointless tutorials in the hope of persuading them. They never change their position based upon evidence submitted that refutes their arguments.
Their list of tactics is long, unvaried, and unimportant. The point is they have an agenda, and are not honest participants in a debate.
"Before he was ambassador he was a State Department official (Undersecretary of State for Arms Control and International Security Affairs). His very title indicates he had responsibilities that would make him a "need to know" individual in regard to the information being uncovered by the NSA program."
ReplyDeleteso who else is allowed access to this info that isnt allowed to be released to judges and courts.who else ,when senators and representatives arent even allowed to have info on this?
that is the fallacy that republicans are supporting is why i am now a democrat as of december 2005.
br3n
notherbob2 --
ReplyDeleteAdding to hypatia's response: You're making the claim that there's some kryptonite-like text in the Jackson opinion that will annihilate her reading of it. It's your claim, so it's up to you to support it. So far all we've seen are vague allusions and some triumphalist huffing and puffing. Surely you can do better.
anonymous strategist:
There are sites infested with trolls who consistently throw verbal stink-bombs and derail threads. This isn't one of those sites. (Try Political Animal.) True, there are some regular posters here whose counter-arguments are thin on evidence or logic; the same is true of some posters who support Glenn's position. But there are several thoughtful, well-informed regulars here willing to take the debate beyond "Bush Derangement Syndrome!" or "Islamofascist!" sloganeering. I've learned a great deal from these posters, Hypatia in particular. (Though her visceral loathing of Michael Moore baffles me; it's so uncharacteristically irrational. Perhaps in her girlhood she was bitten by a fat polemicist.) These debates aren't derails at all; they force me to think further about Glenn's positions, and mine. That's always valuable.
So while I agree with much of what you write, I think your concerns are misdirected here. I hope that continues to be true.
This site offers well-reasoned opinions. As a democratic socialist (or as I have been referred to: "pinko") I appreciate the fact that the arguments Greenwald presents are comprehensive and rational. It speaks to the alarming nature of our country when people so far across the political spectrum agree. As for some of the shrill or superfluous postings, the comments sections of excellent sites tend to be troll magnets. Thankfully one can scroll down and ignore.
ReplyDeleteI wouldn't be surprised if there are some paid disrupters here and in most other popular coffeeshops on the web. But it bothers me when people lightly accuse particular posters of being trolls, based on scanty evidence. It is particularly cowardly to post as "Anonymous" and attack someone who has given his name and student number! Not typical troll behavior! I think Anonymous, whoever the heck that is, owes our Dutch poster an apology.
ReplyDeleteBut on the larger point, Anonymous is right that we shouldn't waste too much time arguing with the barnyard types, whether they are on their own or seem to be part of a coordinated team - not everyone is equally articulate, but if a person can't at least attempt to debate in a civilized way, I learned long ago to simply not engage.
and for the dutch law student --
ReplyDeletehet blijkt dat wat in amerika kan starten qua bush-niveau politiek vaak over europa komt waaien. goed over nadenken wanneer jullie nederlanders gaan stemmen.
given the tendencies for american politics/policies to flow towards europe, watch out who you vote for...
If more people were willing to simply acknowledge analytical and factual mistakes that way, political dialogue would be much more constructive.
ReplyDeleteAnd if more people were willing to recognize and commend others who have acknowledged their mistakes, political dialogue would be even more constructive.
Thanks for being constructive, Glenn.
Well, that didn't take long- Senator Roberts has changed his mind and is now in lock-step with the administration. So much for independent thinking:
ReplyDeleteThink Progress
Gadaliya said:
ReplyDelete"I am not presuaded you've given this matter very much thought. My guess is that you, and the bush-haters you represent, don't care a whit why the president made this decision, but only see an opportunity to use it against him politically"
****
Ummmm...Glenn clearly has given it a lot of thought- so much so that he was asked to go to washington to share those thoughts with the Senate Judiciary Committee. Were you Gadaliya? Didn't think so.
And the "oh, you just are all a bunch of bush haters" meme is getting a bit old. Every issue cannot be reduced to this and quite frankly, it's a debate cop-out.
Glenn has clearly articulated why he is concerned about this presidential power-grab so maybe you ought to go peruse the archives instead of bloviating on and on about how everyone with an independent thought simply hates bush and couldn't POSSIBLY have a valid criticism.
And are the conservatives like Grover Norquist and Bob Barr (among many others) a bunch of bush-haters just trying to find a political issue to use against the administration?
And if this were a Clinton instead of a Bush, you undoubtedly would be harping about how no president is above the law.
FISA is quite clear and the President chose to ignore it- all your questions about WHY he chose to do so, are difficult to answer given that the administration wont release many details on the program or motives that might be damaging to it's case. That is hardly glenn's fault.
Some NSA experts have opined that the reason Bush undermined any Congressional or Judicial oversight is because the program involves vast data mining and is not limited to suspected AQ but is much more broad in scope and that raises obvious constitutional issues. In other words, they didn't go to FISA because they feared the court would rule such activities unconstitutional and not issue warrant. But it's hard to argue that case when the administration hides behind national security every chance it gets.
But some of Gonzales remarks during the hearings were quite telling and contradictory- he argued the AUMF gave the POTUS the authority to engate in this activity, but in the same breath argued that they declined to go to Congress to have FISA amended because they believed Congress would not allow such broad executive powers- not exactly a cogent legal argument.
I can't help but wonder how the Right would react if say, President Hillary Clinton did something like this?
Anyone want to venture a guess?
The RNC talking point enforced by the hireling stooge Gedaliya about motive is simply a technique to avoid accountability. One whose motives are pure should not be punished for his criminal activity. Well, that's what you get from Quislings.
ReplyDeleteThis is for you Vetiver: There is no question that Glenn has made a good case and referring any doubter of that fact to his prior arguments is exactly the correct thing to do. Does that mean that there can be no reasonable doubter among those who have read and understood his case? According to Hypatia, no.
ReplyDeleteThen Hypatia attempts a debater’s trick and invites me to prove that Bush is right. That, of course, is not my point at all. Am I allowed a point or must I only discuss the issues deemed pertinent by Hypatia in the manner she deems appropriate; or be a troll?
Let me try to make my point once more. It is not a minor point; it is the entire point. A famous example is “If the glove don’t fit, you must acquit.” Telling people who did not witness the glove demonstration that Cochrane proved beyond a shadow of a doubt that the glove did not fit is A-OK. Reasoning people can then ponder if such a demonstration proves beyond a reasonable doubt that the malefactor is guilty of the crime charged. Omitting any reference to the glove demonstration altogether and claiming that one has proven innocence beyond a reasonable doubt...”...and you can check the record and you will clearly see it.”...is quite another thing.
Returning to the issue at hand, is there a difference between there being a reasonable doubt whether or not Bush acted correctly in the NSA matter and there being no such doubt? Of course. Claiming that proof beyond any reasonable doubt has been demonstrated by Glenn makes anyone still supporting the administration (pick your term: an idiot, a fool, a partisan, a dupe, etc.) .
However, an APPROPRIATE description of Hypatia’s proof would be: “The issue of NSA will probably be determined under a ‘Jackson Category III’ analysis of Youngstown Steel. Per that analysis, and the holding of the case, Congress will trump the President in all but the most exceptional circumstances...” Glenn, and all the others that he cites, believe that the present stage of the GWOT is not an exceptional circumstance that allows the President to exercise unwarranted surveillance which includes an American citizen on American soil.”
This ACCURATE description of the issue allows a reasonable reader to see what the disagreement is about legally and realize that those who disagree are none of the above, but reasonable people. People who believe that circumstances are exceptional and that, therefore, a similar case reaching the SCOTUS just might have a different outcome from Youngstown Steel.
It is Hypatia’s option to frame the discussion so as to give it the appearance of a slam dunk (9-0) and deride those on the other side for being idiots with no reasonable foundation for their beliefs. It is done all the time. In fact, some people (politicians, advertisers, defense attorneys, mothers to name a few) are expected to do so and criticized if they don’t. However, if one does that they may expect to be called on it.
Hypatia damn well knows about the Jackson Category III analysis. For obvious reasons she has chosen to frame the discussion without mentioning it. Readers take note. No doubt it won’t be her last “mushroom treatment” attempt.
notherbob2 said...
ReplyDeleteUgh, Constance, if I were you, coming from where you apparently are, I would avoid the phrase "move on" in my comments.
Jump in a lake!
Move on, notherbob2 . . . your country sucks! [ Click ]
1930's Nazi Germany -- back in 2006. Enjoy your descent to fascism. Tell your President to eat worms! [ Click ]
Re: Constant. Sometimes misunderstandings lead to a better understanding!
ReplyDeleteRegarding the question of "why did Bush do things this way?" my guess is as follows:
ReplyDeleteHe's swallowed the idea that America is inherently good, and held back only by a bunch of namby-pamby rules that don't actually do anything. He thinks that bold action is all that's needed for victory.
This accounts for Guantanemo, torture, and the war in Iraq, as well as the NSA program. In each case, he chose bold action contrary to the expectations of the established rules, hoping that doing so would yield an advantage.
Sometimes the rules are in place for a reason... sometimes, to protect the bold, but not too bright.
I used to be pretty impressed with Gedaliya's comments on this blog, particularly given the hostility that most readers here would have for his/her opinion, but it's becoming readily apparent at this point that he/she is about out of substantive arguments. Could you imagine a scenario in which people could believe they're winning an argument by simply bandying around the slur that the opponent in question is just a "Bush lover?" While that would be more plausible than the converse, given Bush's anemic approval ratings, Gedaliya seems to believe that anyone who doesn't buy into George Bush's master plan for anything and everything, stated or implied, is a "leftist Bush-hater" and thus is incapable of producing any arguments of substance, apparently including Glenn himself.
ReplyDeleteGedaliya has been reduced to 1) contesting non-sequitirs in others' comments and when that fails, 2) pulling out the "leftist Bush-hater" trump card.
If Bush were a staggeringly popular president, with ratings in the 90% range, then this "Bush-hater" stigma would carry some semblance of validity. But given the fact that (as Glenn has repeatedly pointed out) Bush is and has been a tremendously unpopular president with whom a solid majority of Americans disagree on a wide variety of issues, unless Gedaliya is prepared to brand a majority of the country as "leftist Bush-haters," this is nothing more than ad-hominem invective.