(1) The Senate Judiciary Committee is holding hearings again today on the NSA scandal. One can watch them live on C-SPAN here. The morning panel is composed of four federal judges. From the bits and pieces I've subjected myself to thus far, it appears that their purpose is to heap praise on Sen. Specter's "new legislation" and drone on about how the Constitution clearly allows Congress to grant the President broad eavesdropping powers for foreign intelligence purposes without having to bother with case-specific probable cause showings.
The afternoon panel ought to be much more instructive and interesting. It includes Morton Halperin, currently with the Center for American Progress and formerly with the ACLU, whose telephones were tapped under the Nixon Administration, something which was discovered only by the Church Committee.
The other panelist is David Kris, formerly with the Bush Justice Department (and now with Time Warner). Kris testified in front of the Judiciary Committee in 2002 regarding FISA and made what appear to be false statements about the Administration's eavesdropping activities, likely because he was not advised of the illegal eavesdropping the President had ordered. He also, as Marty Lederman recently discussed, authored very strong memoranda which were highly critical of the Administration's "legal justifications" for eavesdropping in violation of FISA.
(2) It is still early in the year, but I am quite confident that these statements from Sen. Carl Levin, which he made this weekend on FOX with Chris Wallace, will end up at the very top of the list of Most Infuriating Statements of the Year once we are at the end of 2006:
WALLACE: Well, let me ask you, just to press this a little bit further, one of your colleagues on this subcommittee, a Democratic colleague, Senator Diane Feinstein, came out afterwards and said that she thought it was a very impressive program and didn't have a contrary word to say about it.
LEVIN: Well, she has, obviously — she feels comfortable saying what she wants to say about her briefing. I don't want to say anything about the way this program operates or reach any conclusion until my briefings are concluded.
But then again, I hope to be able to find a way that I can either look people in the eye and say this program is one where there is probable cause of the precise type that the president assured the nation.
That to me is critical. Then if there is probable cause to believe that these people who are engaged in these conversations are Al Qaeda-connected agents or members, then the question is is it legal, or do you have to modify the law in order to make it legal.
WALLACE: But there's a political reality in this, too, as I don't have to tell you. Do Democrats want to be in the position of investigating the president for possible censure, a president in the middle of wartime, over a program that, at least according to some people who have been briefed on it, including a Democrat, does a good job in protecting the American people?
LEVIN: No, I think it's premature to reach any conclusion about censure, and I would first put the inquiries before you reach any conclusion.
WALLACE: Do you think it was helpful to even raise the idea?
LEVIN: No, I think to say that you should censure the president before you have had the inquiries is premature, so I don't think it's helpful to reach that conclusion at this point.
The whole interview is like that. I just picked the worst of it. Carl Levin obviously believes that it is perfectly acceptable for the President to break the law just as long as it turns out that his illegal conduct is driven by good intentions. To Sen. Levin, this is what the NSA scandal is about:
the question is is it legal, or do you have to modify the law in order to make it legal.
If it turns out that they were not abusing the eavesdropping power, then it is perfectly fine with Sen. Levin if the President broke the law. If the President broke the law, then the duty of the Senate is to "modify the law in order to make it legal" because, after all, the President broke the law for the "right reasons." As Daniel Webster warned: "Good intentions will always be pleaded for every assumption of authority. It is hardly too strong to say that the Constitution was made to guard the people against the dangers of good intentions."
It is truly astonishing to watch politician after politician -- Republican and Democrat alike - parade forward and expressly say that there may be nothing wrong with the President having eavesdropped on Americans in violation of the law.
Really - what American can grow up in this country and think that way? If it had been the case that the President merely broke the law on, say, September 13, 2001 for a few days as an emergency measure until the law could be quickly changed, that would be one thing. The lawbreaking would be wrong, but it would be a different matter altogether. Here, the President has been breaking the law for four years, deliberately and consciously. And Sen. Levin thinks that when that gets revealed, the solution is to figure out how to make the President's illegal conduct become legal.
So much for the rule of law. In the world of Sen. Levin, the new principle is: "If you think you're doing good, feel free to break the law." That isn't hyperbole or interpretation. That is really what he's saying.
(3) The Judiciary Committee, as you probably already know, is holding hearings on Friday on Sen. Feingold's censure resolution. Christy at FDL is coordinating blogosphere action for Friday.
Really - what American can grow up in this country and think that way?
ReplyDeleteDon't know why you ask that question. Anyone who supports a Judge who ignores the plain language of the Fourth Amendment, and anyone who supports a person who supports such a Judge, would seem like good candidates for "what American."
It's not that big a leap from there.
I'll remember this when I'm pulled over for speeding.
ReplyDelete"but officer, I meant well, and I don't think this law is constitutional in the first place, so it is my duty to break it"
Republicans are crooks.
Glenn, this is a great example of "conservative fatigue". People are truly tired of this bunch of oligarchs who apparently believe themselves to be the arbiters of right and wrong, good and bad, and legal versus illegal in this country. And I believe it boils down to a resistance on the part of Congress, Republicans and Democrats alike to do any closer inspection of the actions that have been taken on the part of the US government since 9/11. Congress wants to "move on" and the press would like to help them but the American people see this strategy for what it is: Massive Coverup Attempt.
ReplyDeleteThese are the same people who want to "stay the course" in Iraq. Now think about this so-called "War in Iraq". A hundred thousand dead, more than four times that number wounded, hundreds of thousands permanently displaced, anti-American sentiment at an all time high, to say nothing of the fact that for the first time in our history, Amesty International, the International Committee of the Red Cross, and the United Nations have asked that we close a detention facility as violative of basic human rights. What Congress/the media hope to hide is self-evident. This war has been a boon to defense contrators, security companies, and has saved Haliburton from bankrupcy. These folks are riding high on war profits, but American prestige, long-term American economic stability and America's constitutionally grounded democratic republic has paid the price for this disaster.
The NSA wiretapping scandal is simply another profiteering scheme (remember Wade and Duke Cunningham) to be covered up on the way to the bank with political contributions in hand curtesy of the corporatists.
Oh, but wait. We did rid the world of a petty tyrant whom we put in power in the first place.
Really - what American can grow up in this country and think that way?
ReplyDeleteI repeat here what I have written before in the context of death squads and militias backed by US troops in Iraq: What is at stake here is the idea that there's something called basic American decency that's been corrupted by this war...
I also noted that this apparent American decency was perhaps destroyed by Graham Greene in his work, The Quiet American. Still, I am not ordinarily disposed to the notion that Americans can carry out acts that are breathtaking in their undemocratic sweep.
This war, along with its supporting rationale and propaganda, is undermining my trust that America always does the "right thing." Of course, if you're a black American or from a country surreptitiously toppled for greater American strategic aims, such a naive has appeared to be a lie for some time. Greene, at least, understood this back in the 60s.
Amendment IV
ReplyDeleteThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Greene, at least, understood this back in the 60s.
ReplyDeleteGreene published The Quiet American in 1955.
anon: thanks for the correction... my bad.
ReplyDeleteGlenn:
ReplyDeleteSo glad you are watching this closely and providing analysis so a regular joe like me can follow. Your reluctance to ban trolls is also good becuse guys like Bart are addressed directly by you and shown the vacuity of their arguments, if not accepted by them, it helps guys like me.
OT to eyes wide open.
I posted a response awhile back about my blog title. Your reference to calling me a "monster" is understood re: your subsequent comment about Frist and his animal mutilation history. I think you missed my explanation so I put it in my blog header. I'm sure you weren't the only one who felt that way about me, so thank you for pointing this out.
Does anyone know yet if that arrogant, cynical, totalitarian bully recused himself? Hardly likely. What possible interest could he have in the "intergrity of the court" when he himself has no human decency?
ReplyDeleteIsn't this basically the Oliver North defense? They thought the law was wrong, thought what they were doing was right (righteous, even), so they felt justified the break the law whenever they felt they needed. So they could "do good".
ReplyDeleteWe used to call this the "Blue's Brothers defense" ("we're on a mission from God") until Ollie came along and adopted it. And, of course, a great many people on the right thought his defense was perfectly fine. I'm really disappointed to hear Sen. Levin adopting the same line.
There seem to be innumerable ways in which these politicians can turn the law and the Constitution into Silly Putty. Why have a committee hearing that simply contorts, conspires, and complies to provide legal shelter to an executive branch that already has broken the law? This committee would be better served to lay out the legal grounds for impeachment, and cease their complicity, after the fact, in an extant crime of such enormous proportions.
ReplyDeleteChairman Specter just admitted that it doesn't really matter what is decided in this committee; he referenced the "torture bill", then thought out loud about Bush's signing statement, said that hearings would ensue in regards to said "signing statements", then admitted that, essentially, none of this really matters (because this administration is going to do as they please anyway).
ReplyDeleteThis points out a real basic question.
ReplyDeleteDoes the law really even matter anymore? Any law?
You know Mr. Greenwald, this is getting really silly. What part of “Protect America first, then worry about obeying the law” don’t you understand? You are running in traffic yelling at people that they must do something about starving children. Your political motives are unsubtle and even the choir is brushing past you to get to the hors’d’hourves. You are the equivalent of a sparkler on the 5th of July.
ReplyDeleteBy all means continue to press your concerns. Who knows, maybe a venal use of the surveillance will be discovered. Barring that, what you have is some doctored polls and a great deal of venom for the current Administration. People have real issues to deal with. There are only so many ways to decry the actions of the Administration and you must be getting to the bottom of the barrel. Time for Plan B.
Yes, it was a great idea to try to harness the power of the NSA program to overturn the Administration. It is heartening to see that you recognize that the results so far are pitiful.. Where is that damned whistleblower when you really need him?
Geez, I just caught the last few minutes of the hearing. Spector is still visibly upset that Feingold didn't stick around to debate him last week after he (Feingold) "berated" the President for 25 minutes on the floor.
ReplyDeleteFolks, democracy, as we knew it, is in a meltdown.
What part of “Protect America first, then worry about obeying the law” don’t you understand?
ReplyDeleteThe part where we lose our privacy, our freedom and our rights to satisfy an nefarious administration's deeper global, economic and religious agenda.
Security, indeed!
EWO feverishly asks:Does anyone know yet if that arrogant, cynical, totalitarian bully recused himself? Hardly likely. What possible interest could he have in the "intergrity of the court" when he himself has no human decency?
ReplyDeleteYes, yes, EWO. Sam Alito is the anti-Christ and I am his devoted acolyte, whom Glenn and all true Americans should cast into the darkness. Problem is, you simply do not know what you are talking about. If Sam Alito is in the mold of Scalia and Thomas, the 4th Am is pretty safe with them.
One of the most important 4th Am cases decided recently, KYLLO V. UNITED STATES , was (of course) a drug trafficking case, and it involved the use of technology to invade homes and secure information. The government insisted that was not a search, and they needed no warrants.
Guess who disagreed? Antonin Scalia (who wrote a superb Opinion for the 5-4 majority). Ditto Clarence Thomas, who joined Scalia. Know who dissented? The liberal, Stevens.
Totalitarian thug Scalia wrote:
We have said that the Fourth Amendment draws “a firm line at the entrance to the house,” Payton, 445 U.S., at 590. That line, we think, must be not only firm but also bright–which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.
“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v. United States, 267 U.S. 132, 149 (1925).
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.
oh boy -- the know-it-alls at FDL are going to "save us" again.
ReplyDeleteThat group of morons couldn't build a coalition of support for milk and cookies in a preschool.
Just gotta love the circle of links that thinks they are our saviors...
Maybe it is all about creating a "brand" and fashion statement.
anon: Just gotta love the circle of links that thinks they are our saviors...
ReplyDeleteI think talk about saviors is more appropriate to the current group in power. They're the ones who ran a savior type; just see their propaganda film, Faith in the White House.
I captured the hearing and will be putting up some snippets on CanOFun. First up is Kris of Time Warner who strongly made the argument that he believes Bush's program is not legal nor sanctioned by the AUMF. Others to follow.
ReplyDeleteTo notherbob2 -
ReplyDeleteI'd like to ask a ridiculously obvious question:
Exactly how does the deliberate ignoring of US statutes by the current Administration, specifically those intended and designed to prevent abuse of the government's powers, in any way shape or form 'protect' us as either a country or society even as it contracts out such things as airport and seaport security, underfunds its own Department of Homeland Security, and mis-allocates billions of dollars for useless weapon systems and short-changes our troops while they're still in the field?
More to the point, exactly *what* are they protecting us from with this law-breaking? A comparatively small, very loose, nearly untracable network of religious extremists who are likely located primarily overseas?
No talking points about 'Islamofascists' (they are technically 'theocrats' and have more in common with Christian Reconstructionists in terms of worldview and agenda than the Nazis of 1930s Germany) or Baathist dead-enders, please; if you can't offer a more reasoned and intelligible explanation than the current strips of "Doonesbury" offer, please just say so.
What part of “Protect America first, then worry about obeying the law” don’t you understand?
ReplyDeleteBecause life really is just like a cross between 24 and a Steven Segal movie where as long as you're the good guy you get to do whatever you want or else the world will blow up.
Plus it's good to be so afraid of the terrorists that you give up essential constitutional principles if only Dear Leader will just protect you please please please please pleeeeeeeeease.
"I'd like to ask a ridiculously obvious question:..."
ReplyDeleteAnswer:
A comparatively small, very loose, nearly untracable network of religious extremists who are likely located primarily overseas.
11:05am, 3/28/06... Just called Senator Feinstein's D.C. office, and spoke to her aide, Brian Hughes, who identified himself as serving in "Feinstein Judiciary".
ReplyDeleteReminded Brian that I had spoken with him last week, and that I had asked if the 3 Democrats on the Intelligence subcommittee, upon which the Senator sits, had subpoena power, and the ability to compel testimony. Reminded him that he did not, at that point, have the answer to that question, but that he promised to ask the Senator and invited me to call back for the answer. Was told by Brian that the answer is no, the 3 Democrats on the subcommittee do not have the power to issue subpoenas and compel testimony, but that the subcommittee, as a whole, does have said powers.
Asked Brian if that means that the Democrats on the subcommittee upon which the Senator sits would need a Republican (or Republicans) to join them in order to compel a witness to testify. Was told that that is correct, a Republican (or Republicans) in the subcommittee upon which the Senator sits would have to be persuaded to force a witness to testify.
Asked Brian if the Senator believed that such an investigation, given the minority party's inability to compel testimony, would prove meaningful, and would yield useful information. Was told that the Senator hopes that the subcommittee's investigation would be fruitful.
Told Brian that I did not ask what the Senator hopes. Asked Brian, again, if the Senator is of the belief that such an investigation, given the minority party's inability to compel testimony, would prove meaningful, and would yield useful information. Was, again, told that the Senator hopes that the subcommittee's investigation would be fruitful.
Informed Brian, once again, that I did not ask what the Senator hopes. Asked Brian, for the third time, if the Senator is of the belief that such an investigation, given the minority party's inability to compel testimony, would prove meaningful, and would yield useful information. Was told, by Brian, that he did not have that information.
Asked Brian if there was someone in the office I could talk to who would have such information. Or, failing that, if Brian could please ask the Senator for the answer to the above question, and if I could call back for the answer. Was told that the Senator keeps her own counsel on certain matters.
Asked Brian if the Senator believed that a constituent such as myself was not entitled to the answer to the above question. Was told that, no, he would not characterize it as such. Rather, Brian said, the Senator truthfully is not currently certain as to whether or not the intelligence subcommittee, as currently structured, is likely to prove meaningful, and would yield useful information.
Asked Brian if, in light of the above, it would be fair to say that the Senator is withholding support for Feingold's censure motion in favor of an Intelligence subcommittee investigation that the Senator, herself, is not convinced will be meaningful. Was told that the Senator considers Feingold's censure motion premature.
Told Brian that I did not ask whether or not the Senator considers Feingold's censure motion premature. Asked, again, if it would be fair to say that the Senator is withholding support for Feingold's censure motion in favor of an Intelligence subcommittee investigation that the Senator, herself, is not convinced will be meaningful. Was told that, yes, that would be fair to say.
Thanked Brian for his time and ended the call.
Patrick Meighan
Venice, CA
*sigh*
ReplyDeleteA few days ago I wrote both of my Senators asking them to do their job of representing the American people and protecting the rule of law by supporting Senator Feingold's censure resolution since it was obvious to anyone paying attention that the President had broken the law of the land. Below are some excerpts from a response letter I received today from one of my Senators (Dem).
Thank you for contacting me regarding Senate Resolution 398, the resolution introduced by Senator Russ Feingold that would censure the President for authorizing the National Security Agency (NSA) to conduct a warrantless wiretapping program of American citizens. I appreciate hearing from you on this important issue.
Protecting both the security and the freedom of the American people is among my greatest concerns. I share an obligation with my fellow Senators to ensure that the federal government protects and defends the people of the United States while preserving the civil liberties that have helped make our country the greatest and most enduring democracy in the world.
When the President and the Administration order actions such as the surveillance of American citizens, these actions must be conducted in a
manner consistent with the rule of law and the Constitution's commitment to civil liberties.
[snip]
The current Congress has failed to conduct the kind of oversight that should be applied to the actions of any President who has been accused of breaking the law. Because this Congress has not adequately investigated the fact that the President's domestic wiretapping program does not appear to follow the procedures outlined in FISA, Senator Feingold introduced his resolution seeking to censure the President. Senator Feingold's resolution could serve as a catalyst for that scrutiny. The Chairman of the Senate Judiciary Committee, Arlen Specter, has indicated that he does not believe there is a constitutional basis for the program...
[snip]
Senator Specter also agreed that the operational details and legal underpinnings for this program are not clear and need to be investigated further in order for Congress to exercise appropriate oversight.
Senator Feingold's resolution has helped draw more attention to the warrantless wiretapping program and the legal rationales the Administration has put forth to justify it. What is needed now is the full investigation that will clarify the nature of this surveillance. That investigation should guide us to the appropriate response as well as to efforts to ensure that any future government surveillance is conducted in a manner consistent with our Constitution and laws.
Thanks again for your message. Feel free to keep in touch.
[emphasis mine]
I am not sure what you all think but my assessment of this response is that 1) The "needs more investigation" talking points appear to be all the satisfaction we will ever get and 2) that the Dems are hanging their hat with Specter.
I am not sure what to say except that I am extremely disappointed. Not surprised but still disappointed. The way I read it they aren't going to back Feingold.
More to the point, exactly *what* are they protecting us from with this law-breaking? A comparatively small, very loose, nearly untracable network of religious extremists who are likely located primarily overseas?
ReplyDeleteAh, truth rears its ugly head. Dangerous waters ahead. Next thing you know, we might actually asks ourselves what policies and practices of the global/corporate/military industrial complex would incite an attack on the "World Trade Center" and the "Pentagon". The first a worldwide symbol of global trade and commerce and the second a symbol of the military industrial complex itself.
Better to content ourselves with understanding that the arms dealers, mercenaries, and oilmen are doing very nicely as a result of the "War on Terror". Wall Street loves it.
"Good intentions" is not a very workable legal standard (particularly when the person that is going to judge this is the person under consideration themselves).
ReplyDeleteI'm quite sure that the folks that came up with the torture plans had perfectly "good intentions": They were just going to have Jack find the nuke before the end of the show. "All for the greater good", you know.... See Harlan Ellison's chilling "Daniel White For The Greater Good" for an interesting perspective on this; and a clue as to how we can all be seduced ... IF we allow ourselves this one pass.
Cheers,
I think everyone is disappointed in Congress. They refuse to take their heads out of the sand, hear our pleas, take any kind of action to rein in King George.
ReplyDeleteIf the Democrats think this hiding is going to get them elected, they are wrong. Hiding, when your job is to stand up, will get you fired. If the Republicans think it's a boon to them to see the Dems run and hide, I suggest that a one party system is likely to collapse sooner rather than later. A little opposition might be a very good thing. The sad truth is that they all work for one massive employer, the American Corporation. When the PACS say jump, they will jump and not before. Surprised that Congress hasn't resisted Georgie Porgie? Ask the bosses what they think. Ask the Corporatists. They still love Georgie. He takes care of the rich, and the rich rule us with money.
notherbob2:
ReplyDeleteWhat part of “Protect America first, then worry about obeying the law” don’t you understand?
Oh, we understand. Better than you. Howzabout doing both, eh?
You seem to thing the only way this country can be "protected" is if its fundamental nature is dramatically altered; you seem to think sans evidence and rationality that "9/11 changed everything". That is absurd, of course, to anyone who has paid the least attention in history class.
"We had to destroy the village in order to save it...." Perhaps that phrase just doesn't ring a bell with you; but those who don't understand history are condemned to repeat it.
Cheers,
Jao said...
ReplyDeleteBut I also abhor the same argument turned on its head -- that disapproving such unlawful acts rules out policy changes going forward.
Making policy changes is just fine and dandy if they are needed. No one has ever explained why they are needed though. Why is FISA not sufficient?
Going forward from where? This is so ridiculous. As I said in so many words yesterday: What the hell does it matter? Why discuss policy changes when we do not know if they are even needed? Or even more to the point - Why discuss policy changes when the King will simply ignore any changes at his whim? BushCo didn't seek out changes to FISA... in fact they BLOCKED attempts to change it for them because they simply do not GIVE A FUCK ABOUT THE LAW. Bush will do it his way - everything else be damned.
You can discuss future policy changes all you like Jao... write them, submit them, get Congress to pass them... NONE OF IT WILL MATTER UNTIL THIS CRIMINAL IS OUSTED. What part of that do you not understand?
You keep harping on this issue Jao. I believe you are trying to avoid the bigger issue of holding this law breaking administration accountable for their actions. It does appear that Levin is saying that it doesn't matter if the law was broken as long as it is "done for the right reasons." This is unacceptable if for no other reason than it does not prevent King George from breaking the law again, and again and again on the basis of "doing it for the right reasons."
Just please stop with your "cart before the horse" obfuscation already.
Even a broken clock is right twice a day.
ReplyDeleteAnyone who cannot see the evil in Scalia is blind. That much I know.
So Hypatia, do tell, what did you think of Scalia's performance today?
mds states: Unless, of course, two equal members of a household disagree about whether to allow a warrantless search. Then the tie goes to the government by default. Or so a Roberts-Scalia-Thomas dissent to Georgia v. Randolph would have us believe. Can't you just feel the waves of Fourth Amendment absolutism emanating from Justice Scalia? He joined Justice Roberts in invoking the deliberate red herring of domestic violence,
ReplyDeleteOk, Hypatia has now moved beyond peeved, and into outrage.
Roberts’ opinion appears to have been drafted as if were writing for the majority, and as has been reported his references to domestic abuse scenarios were included to lure that premier fascist, Stephen Breyer, who first raised the concern during oral argument. The opinion ended up as a dissent, but it is reasonable.
I have already set forth in an earlier thread why it is reasonable, but the nutshell versions is that for both jurisprudential and practical reasons it is not depraved to believe that only one party holding authority over a premsies is necessary to consent to its search, regardless of objections coming from any other person holding the same authority. I’d have to be fully briefed, but that might well be my holding were I the justice.
Look, this nation has been awash in a frenzy of judge- and nominee-bashing from both left and right, and that is very harmful. Never in my born days did I see as vile an attack on the judiciary as that jihad led against Republican, Southern Baptist FL Judge George Greer during the “Save Terri!” hysteria. Then the ensuing rants about “activist” federal judges who didn’t apply the ”emergency” federal “Terri’s law” as the right thought it should have. Then there were Cornyn’s revolting remarks about violence and justices, all because Anthony Kennedy referred to foreign standards when considering what constitutes “cruel and unusual punishment.” The right blogosphere went insane with hatred over that one.
The left is not as bad, but bad enough. To hear some tell it, in Sam Alito’s America, gun smugglers sell machine guns to school children while cops invade their body cavities looking for drugs without warrants.
Alito’s machine gun opinion was correct. His view that police officers -- who mistakenly but in good faith believe they are authorized to search a child by the scope their warrant – should not be exposed to financial liability in a civil suit, is reasonable.
Enough.
The man now sits on our Supreme Court. Roberts, too. Demonizing them with absurd mischaracterizations of their judicial opinions – often uninformed by context of oral arguments and other matters involved in their deliberations – is to contribute to a pervasive view that our judiciary lacks legitimacy. If we expect the Executive to abide by the rule of law, well, that rule of law stands or falls by an independent judiciary that is perceived as legitimate.
In my emphatic opinion, anyone – left, right or other – who promotes ignorant and hysterical demonization of the judiciary is part of the problem this site is dedicated to resolving.
Patrick, aside from being a patriot, you are truly, truly priceless.
ReplyDeleteWhen your own book comes out, which should be read by every American who wants to know how he can participate in the political process from his own home,
I'll be waiting in line to buy it.
Keep dialing!
Thanks for the latest report. Unfortunately, I could have told you that Sen. Feinstein is not only a "water carrier" but a dangerous one, as she wears such a tailored, well designed disguise.
But it's always good to get evidence of that right out there, where it belongs.
You certainly have developed a fascinating style all your own.
EWO: I have not sufficiently followed the flap over Scalia's detainee comments to form a firm opinion as to whether he should recuse himself.
ReplyDeleteBut in my first guest post here I set forth how and why I believe Scalia has hypocritically departed from his purportedly federalist jurisprudential philosophy. He's sometimes egregiously wrong; but then, I feel that way about virtually all of them.
But what I do not do is run around calling justices "evil" and holding forth on supposed Catholic plots to create a police state. I value the rule of law, the sine qua non of which is a judiciary deemed legitmate by the public as well as the other two branches of govt.
I'm deeply disappointed in Levin, who I think has been corrupted by how close he is to becoming the chair of the Intel Committee if Dems retake the Senate this fall. He clearly wants to be seen as a team player by the rubber-stamp Republicans who runn the committee now. Or am I wrong, and Leahy is the ranking member? I hope so.
ReplyDeleteRegardless, Levin seems to have bought into the "leadership" Dem idea that it's political poison to attack the NSA program on security grounds. And/or his AIPAC donors (he leads all Senators in AIPAC contributions, if I recall correctly) have gotten to him.
I also blame him for caving and lending his name to the habeas-stripping amendment that makes the McCain anti-torture provisions unenforceable (and which Graham and Kyl are now claiming in an amicus brief makes Hamdan pointless -- see A.L.'s post just previous).
These Dems are worthless and unbelievable.
ReplyDeleteNo wisdom or even thoughts to add to that.
Hypatia said...
ReplyDeleteI’d have to be fully briefed, but that might well be my holding were I the justice.
I think Bush should nominate Hypatia for the clown court when Scalia is bounced for having his "Sicilian" friends whack that photographer for taking the picture of him flipping the "Italian bird".
She obviously has the temperament and arrogance necessary to sit on SCOTUS.
is to contribute to a pervasive view that our judiciary lacks legitimacy. If we expect the Executive to abide by the rule of law, well, that rule of law stands or falls by an independent judiciary that is perceived as legitimate.
As an aside... I must thank Hypatia for reminding me of this. I, a humble "non-lawyer" now understand that there is really no point in expecting the Executive to follow the rule of law as the SCOTUS bore him illegitimately in the first place. I believe I have hit upon something here! This is perhaps the best explanation yet as to why we should just accept King George's law breaking. At some point the children need to separate from the parents and venture forth on their own... making their own way and their own rules much as their parents did.
Seems I should just accept this.
Now time to rob a bank, kill the guy across the street and not pay my taxes. I might not be illegitimate but Hey!? Why should the bastards have all the fun?
This comment has been removed by a blog administrator.
ReplyDeleteJAO: I find this to be a distorted paraphrase of what Levin said. The senator did not advocate ratifying whatever the NSA happens to by doing today, but he did indicate that he is open to considering, as a policy matter amendments to FISA that would allow more flexible terms than it currently does.
ReplyDeleteI excerpted and placed in bold the part of Sen. Levin's answer where he said EXACTLY what you claim is a "distortion" - Here it is again:
Then if there is probable cause to believe that these people who are engaged in these conversations are Al Qaeda-connected agents or members, then the question is is it legal, or do you have to modify the law in order to make it legal.
You simply assert the conclusion that my description of what he said is a "distortion," but you provide no rationale at all for why that is so. His comment could not have been clearer - as long as the President didn't abuse the eavesdropping power, then what we need to do is figure out how to make what he did legal.
I have never taken the position that there are no amendments to FISA worth considering. Maybe it does need to be amended, although I have never heard a single convincing argument why it, in its current form, is inadequate to allow all legitimate eavesdropping.
And I don't criticize anyone for saying that FISA should be amended. I criticize them when they say - as Sen. Levin empthatically did -- that the solution to the President's lawbreaking is to change the law to render legal his illegal conduct.
Having said that, I agree with Pat Leahy (as posted by David) and George Will - it is an act of sheer idiocy to amend a law which the President is claiming he has the right to break. Who cares what FISA says or what its standards are as long as we have a President, as we do, who claims the right to eavesdrop however he wants regardless of what FISA says or doesn't say? (After writing this, I see that rh made the same point).
PATRICK - For both educative and entertainment purposes - in equal measure - you may want to think about recording those calls and uploading them - although you do just a thorough job of recounting them that it might not even be necessary. Poor Brian. But it's exactly the kind of accountability our public servants should be receiving from their constituents.
rh: Hear, hear! I love it when calm, rational people have finally had it, and speak out with passion!
ReplyDeleteHypatia writes: EWO feverishly asks:Does anyone know yet if that arrogant, cynical, totalitarian bully recused himself? Hardly likely. What possible interest could he have in the "intergrity of the court" when he himself has no human decency?
Correction, hypatia. I didn't write that "feverishly". I grappled with what I really wanted to say, then decided to restrain myself and go with something less heated.
Mo: great post.
jao and hypatia: your slips are showing.
No matter, there's a good seemstress over at confirmthem.com.
Glenn writes: Having said that, I agree with Pat Leahy (as posted by David) and George Will - it is an act of sheer idiocy to amend a law which the President is claiming he has the right to break. Who cares what FISA says or what its standards are as long as we have a President, as we do, who claims the right to eavesdrop however he wants regardless of what FISA says or doesn't say?
ReplyDeleteI agree with that. Having just watched a snippet of Kris's testimony, and his suggestions that FISA should be carefully and narrowly tailored and targeted at whatever this NSA program is -- except we don't know what it is so he wasn't sure how that could be done -- I had an overwhelming feeling of how totally futile and pointless the whole endeavor is. Including how stupid it was for him to have spent the weekend toying with Specter's proposed legislation. It does not matter what law they pass, Bush has said he has the authority to do whatever he damn well pleases. So why waste all that intellectual talent crafting and passing a mere "suggestion."
Kris said the NSA program violates FISA and is not authorized by the AUMF. He further said that he did not know enought facts to determine whether the president's inherent authority would render it legal. But he was clearly troubled by the argument and does not think it portends well for the future.
I thought Neal Katyal did a superb job presenting the Hamdan case today. I was very impressed with the questioning by David Souter and Stephen Breyer. They sound like Supreme Court justices, on guard for our Constitution. In comparison, Scalia (and Alito to some extent) sounds like a petulant advocate for a discredited political argument, rather than a judge.
ReplyDeleteAnd after watching both the Senate Judiciary Committee NSA Hearing and hearing the Ramdan arguments, Congress (or at least your staffers):
REFINE YOUR BILL LANGUAGE!! Hone it to a RAZOR'S EDGE. You KNOW now about the kind of disingenuous interpretations to which EVERYTHING in the law is now being subjected, as the Administration fixes a course of action and THEN goes looking for any sort of "legal" justification for it they can find by parsing language.
One glaring example from today's wasted 'NSA III' Senate Judiciary Committee hearing [wasted because the excellent witnesses - especially the second panel with Halperin and Kris (who barely spoke but did so without notes, and who seems to have a real handle on the issues at hand] - weren't used to enlighten and educate us with pointed questioning of these experts by the Senators, because almost all of the Senators ended up being absent from the hearing by that time - which seems absurd and downright disrespectful to the witnesses to me):
Morton Halperin told Arlen Specter that Specter's proposed bill, as Halperin reads it, is intended to, or at least in effect will, authorize the unknown NSA spying, while Specter protested that he meant no such thing, and he didn't think the language permits what Halperin reads it to mean.... Hello? Hone it, craft it, specify it, pin it down! Don't leave the Supreme Court, as today, 'wondering' if the Senate really meant to suspend the Writ of Habeas Corpus in their Detainee Treatment Act, but just somehow neglected to say so....
[And the panel of former-FISA judges this morning was a merry-go-round. Senators who also happen to be on the Intelligence Committee (and therefore 'in the know') trying to ask coded questions about unspecified spying couldn't get a straight question out for the judges, who misinterpreted the question as a result, and ended up answering something else which the Senators then completely misunderstood in return, etc., etc. And most of the judges seemed to discount, or overlook, the pretty well reported fact that this new NSA spying is TARGETED on U.S. Persons on U.S. soil, without a warrant. They seemed to be addressing the issue as though the target of the spying was basically overseas... Almost as though they couldn't even get their minds around the possibility of another sort of program which would so obviously contravene clear FISA procedures... And as usual, obfuscation-loving Senators just went along with the flow, leaving the public as confused as when the hearing began..]
P.S. To Joe Biden: THANK YOU. Your powerfully expressed anger and frustration today during the Judiciary Committee hearing is what we need to hear from our Senators. Your idea of censuring the Senate Intelligence Committee is EXCELLENT. The fact that you, and Senator Kennedy, and others, were in Congress and participated in drafting FISA in the first place, gives you great moral authority and standing to decry the present process as compared to the original process of drafting FISA. Don't just express your contempt for the "retreat" of Congress on the foreign affairs front in Committee Hearings. Say it to the American public. TAKE CREDIT for the masterful job of legislating and bill crafting that FISA was and is. Give us some history lessons, and help LEAD the way out of this 'Constitutional moment' substantively, and politically.
[Partially reposted from the previous thread.]
She obviously has the temperament and arrogance necessary to sit on SCOTUS.
ReplyDeleteShe obviously has the temperament and arrogance necessary to sit on SCOTUS.
She obviously has the temperment and arrogance necessary to sin on SCOTUS.
Heh, heh. I can't be attacked for something someone else writes.
Heh, heh.
PS. Scalia's gesture is hardly one of mere "dismissiveness" Guess he gets his spin doctors from the White House pool.
The precise translation from Sicilian Italian is F--- Y--.
Yup, the arrogance and the temperment. Love that.
"Patrick... When your own book comes out..."
ReplyDeleteYou will be waiting a long, long, long time before seeing me come out with any book. Thanks, though. Everyone likes being liked.
If I could make a request, it'd be for you to take that $24.99 you won't be spending on my magnum opus that never will be, and instead donate it to Marcy Winograd, who's currently running to unseat Jane Harman, a key supporter of the president's warrantless spying program.
Here's her weblink:
www.winogradforcongress.com
Thanks,
Patrick Meighan
Venice, CA
Ha Ha. You go Israeli people! Lincoln was right. You can't fool all of the people all of the time.
ReplyDeletePatrick, you may have to bow to public demand when the time comes!
Meanwhile, I am donating to Marcy and Lamont, first two Democrats I ever supported in my life.
Now, off to read Scalia's comments of today. Too bad I don't have a Valium.
EWO said...
ReplyDeleteHeh, heh.
PS. Scalia's gesture is hardly one of mere "dismissiveness" Guess he gets his spin doctors from the White House pool.
The precise translation from Sicilian Italian is F--- Y--.
I tried to look back to see who said it was merely "dismissive" but failed in finding it. Either way I know precisely what it means. My Grandmother used to "use it" toward my Grandfather when his back was turned (most of the time in humor - most of the time).
In truth it really doesn't bother me that Scalia used that gesture. It is unbecoming for a member of the SCOTUS no doubt but, in a way, all it says about him is that he is human and capable of the gutter like most anyone else. My main wish is that, as a member of the SCOTUS, he had one single solitary humble bone in his body. But I realize that is not a quality that many cons posses... let alone ones sitting on the SCOTUS.
In the end he is just another rich, arrogant, powerful white dude that feels invincible - forgetting that if he were to make that gesture toward the wrong guy in the wrong place at the wrong time he would receive a beat down. He is supposedly quite adept at interpreting the law but I am pretty sure he has forgotten the law of the jungle for the most part.
Wow. Wolf Blitzer caption "Scalia comes unhinged." He's about to cover the story which is "causing lots and LOTS of reaction."
ReplyDeleteHypatia:
ReplyDelete...but the nutshell versions is that for both jurisprudential and practical reasons it is not depraved to believe that only one party holding authority over a premsies is necessary to consent to its search, regardless of objections coming from any other person holding the same authority.
Why do you say this, Hypatia? No one needs to give the gummint permission at all; it's not like this is something that should be the default condition unless everyone says "nay". Instead, I think it perfectly reasonable to say that the gummint doesn't have the requisite permission unless everyone gives their permission. How they go about determining that is up to them, but the gummint shouldn't assume any role as to who's going to make the decisions for each person. No permission, no searchee. Or get a warrant.
Cheers,
rh, I will find that quote. It was a spokeman as I recall who said that.
ReplyDeleteI agree the gesture itself might be human, but it's the QUESTION that elicted that gesture which is surprising. It wasn't a question that was at all emotive, and didn't refer to his speech in Sweden.
Also, I will post tomorrow about a particular sentence that CJ Roberts spoke in yesterday's case. I found it enormously curious.
Here you go, rh.
ReplyDeleteA Herald reporter outside the Cathedral of the Holy Cross had asked Scalia, 70, if he faces much questioning over impartiality when it comes to issues separating church and state. "You know what I say to those people?" Scalia replied, making the "obscene gesture, flicking his hand under his chin," the Herald reported. He explained, "That's Sicilian."
A photographer with The Pilot, the Archdiocese of Boston's newspaper, caught the moment. "Don't publish that," Scalia told the photographer, the Herald said.
The Herald today called it "conduct unbecoming a 20-year veteran of the country’s highest court - and just feet from the Mother Church’s altar."
Later Monday, however, the Associated Press reported that Scalia had merely used an Italian hand gesture. "It was a hand off the chin gesture that was meant to be dismissive," Supreme Court spokeswoman Kathy Arberg said.
Note how he thinks he can bully the photographer around.
Morton Halperin's comments on his appearance before the Senate Judiciary Committee can be found at democracyarsenal.org
ReplyDeleteArne L. writes: Instead, I think it perfectly reasonable to say that the gummint doesn't have the requisite permission unless everyone gives their permission.
ReplyDeleteCould be, but it is long-settled law that one party's consent is sufficient. Further, if the person who would object were he present isn't in fact there to object, one person's permission still is sufficient.
All this latest S. St. decision means is that if an objecting party isn't at work or sleeping, and someone else will consent, the cops can search without a warrant. So now they make sure the target is at work.
To say that decision is less important than Scalia's Kyllo holding prohibiting technology from vitiating the 4th, is like saying a hangnail is less serious than a broken limb.
Hypatia:
ReplyDeleteCould be, but it is long-settled law that one party's consent is sufficient. Further, if the person who would object were he present isn't in fact there to object, one person's permission still is sufficient.
All this latest S. St. decision means is that if an objecting party isn't at work or sleeping, and someone else will consent, the cops can search without a warrant. So now they make sure the target is at work.
To say that decision is less important than Scalia's Kyllo holding prohibiting technology from vitiating the 4th, is like saying a hangnail is less serious than a broken limb.
It's pretty easy, Hypatia: If the cops want to go looking, they should get a warrant. Then no argument, eh?
Cheers,
At that moment, before listening to any of Doe's outbound calls, do you think is there probable cause to believe that he is "knowingly" an agent of a foreign power?
ReplyDeleteThere is no question that every single FISA judge would grant a warrant under that circumstance. And they should. There are much better examples to construct if you want to demonstrate that FISA is problematic (none that are persuasive). But the one you presented is, respectfully, just absurd.
As of the time the President ordered eavesdropping outside of FISA, the FISA court had NEVER rejected a single application. I have never heard anyone disagree with the proposition that "if Al Qaeda is calling someone in this country, we should listen," and certainly no FISA judge would disagree (nor do I). We should be listening to every call we can of Al Qaeda members, including with U.S. citizens. That's just obvious.
As for what the public thinks, I'd have no doubt they would agree that we should be listening to such calls. But polls have continuously shown that people do NOT want eavesdropping on Americans without warrants. And if they are educated about what happened in the 1960s and 1970s when the Government could eavesdrop on them without warrants, I have no doubt that those numbers would increase.
Finally, please remember that the Administration claims it is using a "probable cause" standard as part of the President's warrantless NSA program. Therefore, one cannot argue for the superiority of that program over FISA by claiming that FISA's "probable cause" standard is too restrictive, since the Administration claims it conintues to use that same standard outside of FISA.
Jao said.... @ 6:48 pm.
ReplyDelete*Jesus* - you just don't get it.
Jao said...
Holding the President accountable for prior acts is one issue.
Jao - Prior? He has stopped breaking the law then? He will no longer break the law in the future? What assurances do we have that this is the case? Has someone - anyone - any "body" held him to account and gotten this assurance? Do you not understand that almost the entirety of your argument is predicated on the fact that we have an Executive that cares what the law is?Please back this up because it matters to your entire argument.
You know what, I take that back...don't even try. I am so tired of this. Jao - like I said before go ahead and you figure it out for us. You fashion a law or a way to hold an Executive, that refuses to be held accountable, accountable.
And as for this part...
While you blather in this echo chamber about impeachment, the other side will use your silly quote above to mobilize its electoral base. And while you oppose the framework of Specter's bill, which is exactly what White House lobbyists want you to do, the other side will pass DeWine's ratification bill and cut the courts out of the picture.
I say this with all sincerity Jao - I couldn't care less what the "other side" will think or do. The fact of the matter is there should be no "other side" on this matter. Further, if the "oversite" powers that be can not do the correct thing, the righteous thing, the American thing and hold this dictator wannabe accountable in a real fashion such as impeachment then I couldn't care less if the DeWine bill or any other sycophantic, tyranny enabling bill passes. I truly do not. If that happens then this is a culture and country I no longer care to worry about or express grief over. Let it all go to hell I say - and the quicker the better. The bottom line is I am not willing to sacrifice America's integrity one second longer.
You speak about our Presidents "prior bad acts" and how we might go about holding him accountable for them as "political decisions" as if his continuous lying and law breaking is not somehow real or detrimental. You chastise me or "us" who would call for impeachment and say our motivations are political and yet you worry about what Karl Rove might want or attempt. What the "white house lobbyists" want or will think. You sir are the one worried about the political ramifications of this whole thing - not I.
I am scared for a country I believe in. For a Constitution and Public that does not deserve the crimes being perpetrated against them.
You worry about how we can gerrymander our core beliefs and band-aide our national integrity so that we can live with ourselves in the future. It is my opinion, sir, that you are the one playing politics.
Arne L writes: It's pretty easy, Hypatia: If the cops want to go looking, they should get a warrant. Then no argument, eh?
ReplyDeleteWhat do you mean by "should"? It is Crim Law 101 that consent makes a search reasonable and thus no warrant is required.
It is also well-settled law that the consent of only one of two or more parties holding authority over a premises is sufficient. So if by "should" you mean you disagree with this body of case law, well fine. But it is the law.
Hypatia:
ReplyDeleteHaven't had time to read the opinions yet but....
Could be, but it is long-settled law that one party's consent is sufficient.
Ummm, didn't the SCOTUS just rule against this "long-settled law"?
Cheers,
Arne L. asks: Could be, but it is long-settled law that one party's consent is sufficient.
ReplyDeleteUmmm, didn't the SCOTUS just rule against this "long-settled law"?
No.
BTW, the case arose from a domestic violence call, you know, the issue that John Roberts introduced as a red herring, even tho it was also raised by Stephen Breyer first at oral argument.
With regard to the "probable cause" threshold required by the FISA Court to obtain a warrant:
ReplyDeleteIn today's hearing, one of the judges (Harold Baker from the Central District of Illinois I believe) went out of his way to emphasize that this threshold is 'not a high bar' - and is different from probable cause for a criminal court warrant.
The judge stated that for the purposes of electronic surveillance under FISA, "probable cause to believe that the target is a foreign power or an agent of a foreign power" suffices for purposes of obtaining a FISA warrant. He called it a practical, common sense approach to the level of evidence required. Under this standard, jao's Question #3 would be absolutely endorsed by a FISA judge as demonstrating probable cause for a warrant, in complete accord with FISA and its procedures. NOW, today, with no revisions or amendments to FISA necessary.
This is the sort of detail about current procedures we need to learn much more about, but again, the Judiciary Committee members dropped the ball today, and let the chance to question these witnesses go to waste, for the most part. [President Bush helped foil this opportunity, apparently, by summoning Russ Feingold and the rest of the Congressional delegation to Iraq to the White House for a debriefing about half an hour into the hearing proceedings. Feingold didn't resurface again before the end of the hearing, and didn't ask one question of a witness.] I don't know what Senators find more compelling as a primary focus of their time right now than this (except maybe Iraq), but the whole hearing just came across as pointless and futile, and basically rudderless. Why isn't at least ONE Democratic Senator, in Feingold's absence, honing in on the substance here and trying to get some facts and details out to the public, if not to their colleagues...? Screw lobbying "reform" on the Senate floor, and caucus lunches... Get your priorities straight, Congress!
P.S. I noted, in another sparsely attended Senate subcommittee hearing this morning, the utter DISGUST on the faces of the expert Stephen Flynn, Retired Coast Guard Commander, and Tom Kean of the 9/11 Commission, with regard to the lack of action and lack of PRIORITY given to our port security by the Congress and the Admnistration. Frank Lautenberg to his credit was drawing them out about this, but the expressions and words the witnesses were using (as they yet again pointed this negligence out) ought to shame every Member of the Congress.
Hypatia:
ReplyDeleteHaven't had time to read the opinions yet but....
Could be, but it is long-settled law that one party's consent is sufficient.
Ummm, didn't the SCOTUS just rule against this "long-settled law"?
Cheers,
midnightride said...
ReplyDeleteThe judge stated that for the purposes of electronic surveillance under FISA, "probable cause to believe that the target is a foreign power or an agent of a foreign power" suffices for purposes of obtaining a FISA warrant.
This point was reiterated by a few judges on the panel and is a very important point. The FISA court only makes a Judicial determination about whether a target is "foreign power or an agent of a foreign power."
There is not a determination about probable cause for a wiretap. The determination that a person or entity is an agent of a foreign power gives the President authority to treat them as if the were outside of the United States. The evidence threshold the President uses to determine whether to wiretap a "foreign power or an agent of a foreign power" is not reviewable by the FISA court.
Or, I could be wrong, but some of ex FISA judges sure gave that impression. I also got the impression that most of the evidence they use to make their determinations is not obtained with a warrant. Not necessarily collected in the US, but warrant-less still.
jao,
Thanks for the links. I owe you three back.
you said
But the relevant definition of such an agent is still fairly rigorous, and involves "knowingly" doing one or more specific things (50 USC 1801(b)(2):
If my guess, about the FISA court using warrant-less foreign intelligence collected outside of the United States to make their decisions, is correct, it might not be as hard as you think.
Well, maybe it's just as well, then, that these judges weren't really pressed into being FISA experts for the Senators to any great extent, jao... [I didn't hear that probable cause point being made by the judges, 'thelastnamechosen' -- these agents of foreign powers are those agents INSIDE the U.S. in general, under FISA. But I think you're right that overseas warrantless intelligence is (or was) informing a lot of the FISA warrant applications, as you indicate.] It did seem as though the judges often had different takes on specifics, to the point where maybe their testimony simply cancels itself out. [And to think that Feinstein is one of only three Democrats allowed to be 'in the loop' on this spying program. I wonder how computer literate she and Jay Rockefeller (and Carl Levin) are.]
ReplyDeleteBoth NSA spying bills are due to be discussed and maybe voted on Thursday in the Judiciary Committee. Specter says he wants them BOTH voted out to the floor. Then what? The DeWine/Cheney bill has apparently already been rubberstamped in advance right through the Congress and onto Bush's desk (or else...).
That leaves a filibuster as the only remaining option to stop it. And could Frist block the Specter bill from coming up for a vote? Etc. Biden said he'd be happy to work with Specter on getting the NSA program back into the confines of the FISA Court. Fine, if that's possible in concert with the House and over a possible Presidential veto (but the signs don't seem encouraging, even though a well-written Specter bill could provide for it). Meanwhile, Censure is both a principled statement and political pressure that is sorely needed, regardless of the future of the Specter legislation. I sincerely hope both Specter's bill (as carefully revised) and the Censure Resolution can come to fruition.
P.S. to Kovie: DHinMI is one of the disinformation specialists at Daily Kos. React to his intentional provocations accordingly.
In time of crises like this Americans are faced with two choices.
ReplyDeleteYou can believe in "facts" or you can believe in Our President. Lets face it, anybody can make an argument if they have enough "facts", but only The President can be Our President.
Joking aside, its time to prepare for the backlash. Will disgust with Bush results in support for a similarly authoirtarian and imperial "liberal"? If so we will have learned the wrong lesson.
Follow the Latinos. Revolt.
ReplyDeletemidnightride and jao,
ReplyDeleteThanks, I flubbed that line. First I must embarrassingly admit that prior to today, I was under the impression that the FISA court made the same sort of decisions a criminal court would make in issuing a wiretap order. They weighed evidence against probable cause and issued a specific wiretap order.
I always understood that the agent of a foreign power language applied in a FISA warrant, but I did not know it was the only criteria. Now if someone would just explain this to Senator Feinstein.
My "as if the were outside of the United States." line was a very poor restatement of "There is not a determination about probable cause for a wiretap." I do understand that the agents are in the US and if they weren't FISA wouldn't apply.
Once I figured out how the FISA court operates, the metaphor of a bubble of foreign soil that followed the footsteps of a specific person became appealing. The idea being that the president does have authority to eavesdrop outside of the United States. The FISA court can only create this bubble of foreign soil, they cannot rule on a specific eavesdrop, they can only apply minimization procedures.
I apologize for this and many future metaphors betrayed by alcohol.
I'd like to know whether the NSA program constitutes "eavesdropping" in the sense we are used to - actual humans listenting to or reading actual conversations or messages - or whether (as seems more likely) it entails the sifting of citizens' phone and email and phone traffic for patterns and "incriminating" connections which might then become the basis for more specific warrants. If this is true, would/should we be as outraged as we are? Do we think such activity is really as invasive as interception of actual exchanges, and/or would we tolerate a degree of background, "anonymous" interception if it were sufficiently legally defined? As much to the point, does anyone really think there's enough legal precedent or interest to definitively outlaw such "mechanized" surveillance?
ReplyDelete"the question is is it legal, or do you have to modify the law in order to make it legal"
ReplyDeleteUnbelievable. Where were these guys 8 years ago when Clinton was President. Oh yeah, calling for impeachment...
Useful meeting. The morning panel was kind if scary though. A collection of cold war judges, all former FISAs, hopeless fogies now mostly, that could terminally depress even the most battle hardened civil libertarians. Last people on earth to trust with your civil liberties imho. Keenan was the only one that had any sensible suggestions re future FISA.
ReplyDelete---------
Most people agree FISA needs improvements. Unfortunately Specter's bill does almost nothing to address them. Here is a partial list of those badly missing:
a) The court has been historically dominated by judges with strong military/security apparatus connections. Have them approved by the Senate in the future to ensure better balance before giving them more powers.
b) Currently FISA judges have no power to dispute government asserted "probable causes". Finding of a "plain error" is the only grounds on which a FISA court judge can deny the application.
This is ridiculous and it explain court's 99.9+ % approval rate.
Give them full powers to evaluate all government assertions.
c) blanket statutory prohibition against judges of this court meeting/deciding en banc was originally instituted to cripple this court further ("divide & conquer"). Time to get rid of it.
d) Give administration 7 days free run in emergency cases as opposed to the current three.
e) rewrite standards of minimization. At this point there is no requirement that no harm (job, family, reputation, health) to the target will results as a result of what the government does pursuant to court orders. (Common tactic of government agents these days).
etc. etc.
--------------------
They tried to get them to say something about the FSA scandal also w/o much success.
Parenthetically it appears Specter is trying to burry the whole NSA scandal in muddy confusion. But nothing could be clearer.
Bush and NSA broke the law. They only way out for them is to declare FISA unconstitutional. It's that simple.
Constitution says "No Bill of Attainder or ex post facto Law shall be passed. So if GOP-ers think FISA is unconstitutional let them get courts to say so. If they are unwilling to do that the only option will be congressional investigation, censure or preferably impeachment.
Personally I would prefer courts to pronounce on limits of presidential powers. We badly need it.
In the second session, ACLU counsel made a very important observation - the new law gives the government powers to engage in future electronic surveillance programs w/o any meaningful judicial overview. Under Specter, once the AG states what Specter's bill says he needs to say, the court has no choice, it has to approve. This is similar to current operation of the court - no substantive overview of government "probable causes". This is nonsense, it will virtually guarantee 99.99+ approval rate because it makes the court impotent. Specter has an illusion that he's giving the court full powers to evaluate government assertions. Couldn't be more wrong.
ReplyDeleteI just listened to the oral arguments of the Hamdan case. I am not a lawyer, so I would like rh or cynic or someone else to tell me if I am right, but it seems that one of the most immoral things that has ever happened in SC history was done with regard to this case.
ReplyDeleteCorrect me if I am wrong. Congress passed a certain statute. I don't know the specifics. What they passed was relevant to this case, as was the matter of Congressional intent when that statute was passed.
Briefs were filed with the court, and part of those briefs was the Congressional Record relating to Congress's deliberations before passing the statute.
Included in that CR was a conversation that never took place, but was specifically, and undeniably, phonied up to make it appear it had indeed been an oral argument that took place in front of Congress. When the Justices read the entire briefs, they had to consider what the intent of Congress was when they passed the statute. One of the ways they determined that was to look at the CR. They were led to believe that the Congress, having heard the oral debate that was alleged to have happened, took that debate into consideration before they passed the statute, which would shed light on what the Congressional intent was. For instance, if there were points made in that debate with which Congress disagreed, had they heard the arguments, they could have further debated those, or objected to them if they didn't agree, or clarified language in light of that oral argument to make the language more specific. But unbeknownst to the Justices, Congress never heard that debate.
When Clement argued his case today, and the statute Congress had passed came up, he used points in the oral debate which never happened to support his contentions about Congressional intent. It might even be that Clement himself may have fabricated that oral argument, tailoring it precisely to what he knew he would argue in front of the Court was Congress's intent.
If that is so, then that, to me, is one of the few most dishonest, unethical, despicable acts of cheating that I have ever heard of. It makes what Ben D. did look like nothing.
Furthermore, if the statute that the Justices were talking about which involved the issue of whether Congress had "inadvertantly" passed a statute which led to a certain position is the one passed which supposedly was preceded by this fictious oral agrument, then that would mean that the citizens of the United States and certain foreign detainees would be deprived of their rights if the SC ruled in the government's favor because of a criminal conspiracy on the part of Government
As one of the Justices pointed out, if Clement's argument prevailed then the President could declare anyone a "terrorist", even a Vegan, and have the person spirited away to Gitmo to be tortured and detained for years and then tried in front of this ad hoc kangaroo court where the accused would not even be allowed to be present at his own trial and would not be protected by the Geneva Conventions.
By the way, nothing made me more upset than Clement's assertion that there were subhumans in this world, people so lacking in rights that even the Geneva Convention, which apparently has been accepted by almost all countries, doesn't apply to them.
Wouldn't that make us the only major country whose President came right out and declared that the Geneva Convention doesn't always apply in wartime?
There is a website written by a lawyer in Colorado called something like Wash Park Project which discusses this issue of the phony oral argument and states that the two lawyers who submitted the brief with that argument should be disbarred, and Kyl and Graham should be brought up on charges, I forget what kind of charges, but they should be punished severely. I will find that and paste it tomorrow. I also think the DOJ and the SG should be made to testify under oath as to who fabricated that oral argument. Whoever did should also be disbarred, especially if it was the DOJ and Clement.
Or maybe it was Yoo, or Gonzales himself.
Even if it was a different statute that was the subject of the "inadvertent" Congressional action, it still makes my blood boil to think of the sneaky, hideously immoral manner in which Clement, who I personally think wrote his own obit today, "stacked the deck in his favor" if he knew about this, didn't follow the rules, and cheated in front of the Supreme Court of the United States.
This is a very serious situation and I hope I am not the only person in this country who refuses to let this just pass.
Also, I differ strenuously with certain lawyers who wrote on the scotusblog about their impression of today's argument. I may not be a lawyer, but I know double talk when I hear it, and although the attorney who represented Hamdan and all of the Justices who spoke could readily be understood and clearly made their points, I had no idea what the hell Clement was talking about, from start to finish, because he didn't directly answer the clear questions which the Justices, often repeatedly, asked him, he talked in circles, and his only tactic seemed to be to confuse the issues by citing a lot of irrelevant cases and blabbing endlessly about nothing.
In the end, his only argument seemed to be that the President is above the law, above the Geneva Conventions, could do anything he wanted by any means he chose, and that's because Clement thinks we have been invaded by some foreign nation.
Finally, I read that three dozen amicus briefs were filed against the government in this case, and only a few for the government. I read that this is unusual, and that the amicus briefs against the government were, uniquely, not written by staff lawyers and pro bono lawyers and lawyers who did it out of noblesse oblige, but by the top partners themselves of many of the biggest and most prestigious law firms in the country.
They did it because, as one said, this is the most important case to come before the SC in fifty years, and it has to do with nothing more or less than the Rule of Law itself.
The concept that Scalia, Thomas and Alito might rule in the government's favor after all the blah blah blah about their reverence for the Rule of Law shocks and awes my conscience so severely that I can hardly articulate it.
This is a case which touches upon the clash between the Executive and the Supreme Court. Who were those people who said that if such a case came before the SC, the vote would be 9-0 in favor of the Judciary?
I also noticed that Clement kept calling the other side "THEY" in an arrogant, dismissive way. I got the distinct impression that he does not consider Hamdan a human being. The lawyer who argued the case for Hamdan was very respectful throughout of everyone and I disagree that he also did not do a good job. I was very impressed by him.
BTW, I know a good many people who have chaffeurs, and the last person in the world with whom they discuss anything personal is the chaffeur. So just because Hamdan was Bin Ladedn's driver, it doesn't a priori mean he is guilty of conspiracy. To determine that, all the facts would have to be known. That's why people have trials.
As to who won? That can't even be a question. One lawyer spoke plainly, made powerful points about what this nation is all about, was thorougly familiar with American and certain important International Laws which have been ratified by our Congress, and spoke from the heart.
The other was like a slick, used car salesman who, with neither truth nor justice on his side, talked in circles and made no sense. Even Scalia did not, in my opinion, in any way save him, although he sure tried to. But I personally think privately even Scalia knew what a mess Clement was making of everything. But Scalia doesn't care, because he's made up his mind about all this, and certain human beings are beneath Scalia's contempt.
BTW, did anyone hear the whole Swedish talk of Scalia's? Weren't you shocked about what he said about homosexuality, about the French, and about how, if it were up to him, he would throw all the bearded, sandal wearing wretches who burned the flag in jail? Also, you didn't have to read between two many lines to get another point he was driving at. He appears to be petulant that in this country, unlike France, facts come out in the open and are debated, opening our elected officials up to criticism, and it was implicit in his comments that he resents that, although his actual words stated the opposite.
I think burning the American flag is a very reprehensible, tragic, and shocking thing to do, but didn't Jesus have a beard and wear sandals?
What part of “Protect America first, then worry about obeying the law” don’t you understand?
ReplyDeleteWell, there are a lot of issues here. First, the President took an oath of office to uphold the Constitution and the laws of the United States. He didn't take an oath to 'protect American first before worrying about obeying the law'.
That's a starter.
Then there's the question why the FISA law was inadequate for the wiretapping that Bush wanted. The FISA law has fairly reasonable standards. The government isn't even required to get a warrant before listening starts.
The reason the NSA program wasn't covered by FISA is because it's a fishing expedition. Or at least that's what they claim it is.
The Fourth Amendment protection against unreasonable search and seizrure exists for a reason. It protects citizens against a tyrannical government. Given that the Bush administration lied about the existence of the program for four years, and refuse to answer pointed questions about whether the "Terrorist Surveillance Program" is the only wiretapping going on, one suspects that they have taken a wide range of wiretapping options.
Given the past behavior of this administration, why should people in the opposition party assume that their political activities are not subject to wiretap? The current mindset with the White House crowd is to label any enemy of the administration a threat to America. And if they actually believe this? They could be wiretapping everybody.
And what if you're in the opposition party, and think that the administration's incompetence is a great part of the reason as to why the terrorists attacked on 9/11?
Let's make one thing perfectly clear:
surveillance of terrorists is already legal. Bush broke the law and has yet to give a satisfactory answer as to why.
People like Carl Levin will never get my vote or money again. I'm utterly repulsed.
Before this thread completely closes down (if it hasn't already), I'd like to ask the following:
ReplyDelete1. Is there any concrete argument to be made for this program existence and continued operation (*besides* 9/11, which from everything I've read and heard would *not* have been stopped by this program any more than it was impeded by surveillance procedures that were already in place)?
2. Based on the current Administration's track record of policies and their implementation, can one make a rational argument to give them the benefit of the doubt, ie. that this program is being carefully targeted and the surveillance is not going to be mis-used?
3. I realize it has been repeated ad nauseum that the Administration is in clear and deliberate violation of FISA (and possibly other federal statutes, but that hasn't been determined yet); from a purely legal standpoint however, does this rise to the level of "High Crimes and Misdemeanors" that would necessitate impeachment? I agree the Administration is morally reprehensible and incompetent, and I personally consider President Bush little more than a laughing stock and horrifically poor leader, but can the legal argument be made for his removal by the mechanisms in the Constitution?
[BTW, Morton Halperin is not with the ACLU, but I think he used to be.]
ReplyDeleteMorton Halperin was at one time the director of the Washington, D.C. office of the ACLU. According to Wikipedia, while holding that post he won a case defending the right of the Progressive magazine to publish plans on how to build an atomic bomb.
Dissenting Opinion Excerpt
ReplyDeleteJustice Stevens, along with the Chief Justice, Justice White and O'Connor wrote:
"...It is equally well settled that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker's freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition."
Justice Stevens concluded in his opinion that by destroying the symbol of freedom, the individual communicates a willingness to destroy those freedoms themselves:
"By burning the embodiment of America's collective commitment to freedom and equality, the flag burner charges that the majority has forsaken that commitment -- that continued respect for the flag is nothing more than hypocrisy. Such a charge may be made even if the flag burner loves the country and zealously pursues the ideals that the country claims to honor."
I agree with this dissent, and I also feel that burning the American flag is in certain ways similar to carrying another flag here, although of course there are also huge differences.
Our country is founded on the premise that to be a citizen, you cannot have dual allegiances. You have to choose.
Burning the flag should never be legal. There could come a time if a Dictatorship gets up and running which rules the country by force and completely trashes the Constitution and
betrays all of our ideals when burning the flag could be the right, although illegal, symbolic thing to do, but only as a way of showing that America has completely ceased to be the country it was created to be, so the flag has become a hollow symbol.
But that would be a last step, after all attempts at the type of peaceful revolt in which an every expanding army of true patriots are now engaged have utterly failed, and that's not going to happen if we all continue to fight for the truth to prevail.
It is interesting to me that Scalia, who voted to allow flag burning, but says he personally would love to throw all flag burners in jail, has not, in many of his most important decisions, voted to preserve those very ideals which define America.
His misguided, in my opinion, defense of freedom of expression operates simultaneously, in my opinion, with a committment to the type of policies which betray a much more important freedom, and in my opinion, that's because he really doesn't understand the underlying principles of this country. He says he does, but he doesn't.
He understands rule by force, while allowing the natives space to occasionally rumble when it doesn't interfere with the (approved by him) Ruling Class's primary modus operandi, but he doesn't understand the least thing about inividual fundamental liberties, which is what America is areally all about.
That's why his focus on how the Constitution doesn't speak to homosexual rights is so bizarre. Of course it does. It addresses it in its very bone marrow. The Constitution was written to insure that the individual, who is entitled to his life, his liberty and his pursuit of happiness, shall not have those inalienable rights taken away by Government. It wasn't written to enable a tyrannical majority who has trouble understanding the word "self-evident" to be able to take away an oppressed minority's inalienable rights.
http://www.washtimes.com/national/20060329-120346-1901r.htm
ReplyDeletePrez has constitutional authority apparently and didn't violate law. they're discussing giving him more legal latitude to include new technology.
Interesting timing.
Hypatia:
ReplyDeleteArne L. asks:
[Hypatia]: Could be, but it is long-settled law that one party's consent is sufficient.
Arne: Ummm, didn't the SCOTUS just rule against this "long-settled law"?
Hypatia: No.
Ummm, from your link, Hypatia:
The Supreme Court ruled 5-3 on Wednesday that it is unconstitutional for police without a warrant to search a home, if two occupants are present at the time and one consents but the other objects. The search may not go forward in the face of that objection, but the occupant must be present to have the objection count, the Court said in a decision written by Justice David H. Souter.
Sounds like they said that one person's consent was not sufficient. Am I misunderstanding you?
Cheers,