Some significant NSA scandal developments and issues of note:
(1) Democratic Senators, such as Feinstein and Murray, continue to issue statements claiming that they cannot decide their position on the Censure Resolution until an investigation (which isn't occurring) is complete. Along the same lines, Jon Henke at QandO, who has expressed opposition to the illegality of the warrantless eavesdropping program in the past, agrees with what I said yesterday in my post about the fact that it is inexcusable that Republicans have blocked any meaningful investigation into the NSA program, but Jon also said that it was "ridiculous" for me to argue that no investigation was needed in order to decide whether censure was appropriate.
As I made clear, I am not arguing against an investigation. To the contrary, I spent three weeks before all of the Republicans on the Intelligence Committee voted against an investigation urging that one be conducted and trying to do everything possible to induce one of the Committee Republicans to vote in favor of holding hearings. But none did, and so the reality is that no investigation is occurring. My argument is not that we shouldn't have an investigation, but that none is needed to know that the President broke the law, because all relevant facts on that question are already known.
Thus, anyone who claims that an investigation is needed before being able to take a position on the Censure Resolution (or, even more irrationally, those who claim that no Senator can take a position unless they were fully briefed on the program), should have to answer this question:
Specifically, what facts remain to be discovered that are relevant to the question of whether the President broke the law when ordering warrantless eavesdropping on Americans?
Nobody who claims that we need an "investigation" before being able to know if the President broke the law ever specifies which relevant facts remain to be discovered. As I indicated yesterday, there are numerous unanswered questions as to the extent and scope of the warrantless eavesdropping, but no unanswered questions that are relevant to the question of whether the program is illegal.
Can someone -- anyone -- who thinks otherwise -- who believes that some sort of investigation or a secret briefing is needed before one can take a position on censure -- please identify exactly which facts are unknown that need to be known before being able to determine the legality or illegality of the NSA program?
(2) Law Professor Glenn "Instapundit" Reynolds' posts become more mindlessly partisan and bereft of logic by the day, which is really saying something since they didn't exactly begin at a particularly lofty or scholarly place. Yesterday, Instapundit referenced a movement to "censure" Jimmy Carter due to political activism in which Carter has engaged in the foreign policy area, and Instanpundit issued this judgment:
Well, it's no dumber than Russ Feingold's.
Instapundit sees no material difference between: (a) a resolution to censure a sitting President for repeated, deliberate and ongoing violations of the law and (b) a resolution to censure a private citizen for views he expresses on foreign policy matters. But he wants to you know that he's an Independent, not a Republican, and always remains far above partisan impulses (h/t Insta-monitor Zack).
(3) Another prong of the NSA scandal -- another one that can't be killed off by Pat Roberts and Bill Frist -- has emerged:
The company that publishes the Oregonian newspaper in Portland has filed a motion in U.S. District Court in Oregon to unseal documents in a pending case that alleges the Bush administration illegally intercepted international phone conversations between the codirector of an Islamic charity and his two lawyers in the United States.
In a motion filed Friday, lawyers for the Oregonian Publishing Co. argued that it is in the public interest to know the contents of documents that could prove the existence of a potentially illegal domestic spying program.
"This appears to be the first case in which documents have been filed with the court demonstrating the National Security Agency's practice of wiretapping private conversations," said Charles F. Hinkle, a lawyer for the publishing company. "We are not interested in the content of the attorney-client communications. We are interested in what the government did" . . . .
Hinkle says the Oregonian and the public deserve full disclosure.
"If the government carried out an illegal and unconstitutional program," he said, "then we think it's very important that the public know about that. "
Despite the best and most corrupt efforts of the White House and their Republican Congressional servants, we are going to find out, one way or the other, whether the Government eavesdropped on Americans who have nothing to do with terrorists and/or on their purely domestic communications. It doesn't matter how many Committee investigations are squelched or how many Nixonian laws are passed to render legal the President's illegal conduct. There are too many mechanisms for this information to emerge for it to remain concealed. Congratulations to The Oregonian for acting like a newspaper should.
(4) Arlen Specter issued a somewhat cantankerous statement which at least sounds like he isn't anywhere near ready to call off the Judiciary Committee's ongoing inquriy into the legality of the NSA program:
A vocal Republican critic of the Bush administration's eavesdropping program will preside over Senate efforts to write the program into law, but he was pessimistic Wednesday that the White House wanted to listen.
"They want to do just as they please, for as long as they can get away with it," Senate Judiciary Chairman Arlen Specter, R-Pa., said in an interview with The Associated Press. "I think what is going on now without congressional intervention or judicial intervention is just plain wrong."
But, Specter said, the committees haven't gotten full briefings on the program, instead choosing to create small subcommittees for the work. . .
"The intelligence committees ought to exercise their statutory authority on oversight, but they aren't," Specter said. "The Judiciary Committee has acted. We brought in the attorney general. We had a second hearing with a series of experts, and we are deeply involved in it."
And he re-iterated his opposition to the Dewine Nixon Law designed to render legal the Administration's lawbreaking:
DeWine, however, wants to give the administration as much as 45 days to operate without a court warrant. If at any point the attorney general has enough information to go to the intelligence court, he must.
Under that approach, Specter said the administration can still "roam and roam and roam, and not find anything, and keep roaming. ... I think that's wrong."
Specter said he hopes there will be a vote sometime in May on all of the pending legislative proposals relating to the NSA scandal, which includes the Censure Resolution. Someone may want to tell Democratic Senators that they're going to have to take a position sooner or later on these matters without being able to wait for the non-existent investigation that they say they are waiting for. Isn't it quite obviously better to advocate for the Resolution now in order to build public support for it? Speaking of which . . .
(5) Even Joe Lockhart, the former Clinton press secretary, recognizes that Republicans are transparently bluffing when they claim they want this scandal to persist. As The New York Observer reports:
[Lockhart] sees no political downside to Senator Feingold’s proposal—and likewise sees much desperation in the Republican spin that it would be another self-inflicted Democratic wound that would haunt the minority party in the fall elections. All the G.O.P. bluster about an early vote on the Feingold proposal to smoke out weak-sister Democrats for elimination in November, Mr. Lockhart said, “is complete nonsense.”
He said: “One simple rule of politics is that the more ferociously you’re pushing your talking points, the less you believe in them. The Republicans jumping so hard on this tells you that they believe they’re in a really vulnerable position—that this issue is not the winner they thought it was.”
Similarly, former DNC press secretary Terry Michael describes exactly the problem Democrats face:
“The fear factor inside the Democratic Party is appalling,” he added. “You’ve got these small-minded Democratic-consultant-driven political leaders, and then you’ve got real neocons who refuse to listen to the base of the party …. You have these voices of unbridled ambition—Hillary Clinton first among them—who are asking the base to nominate them, when they’re not even listening to the base when it comes to the most important issue in American politics today.”
H/t here to Greg Sargent, who adds his own excellent analysis that is highly worth reading in full:
More and more Dem strategists are arguing that Dems need to stop tripping over their own caution every single time the GOP says they've got a winner on their hands -- after all, the Republicans can always be counted on to say that, regardless of whether they even believe it -- but it's especially refreshing to hear a Clintonite saying so.
This could be significant. If even former Clintonites, known for their caution and political calculations, recognize that the NSA scandal is a serious political threat to Republicans and that their bravado to the contrary is just bluffing, this recognition may be gaining traction.
UPDATE: I wish I had time to comment extensively on this post from conservative-libertarian John Cole -- in which he explains why his "20 year affair with the Republican party is coming to an end" -- but since I don't, I will instead urge you to read it. Cole is not some fringe theory-libertarian or doctrainaire Goldwater conservative whose numbers are quite small. Instead, he represents a type which makes up a big bulk of the Republican Party. He's a common sense conservative who basically believes that the Government should, when possible, stay out of our lives and that we should err on the side of restrained Federal Government intervention.
As the NSA scandal among many other things illustrates (and, from what I can tell, the real wake-up call for Cole was the Schiavo travesty), the Bush Administration has been operating for many years from the opposite premise, and conservatives like Cole are feeling extremely alienated from the comprehensively non-conservative Republican Party.
Glenn, do you feel like you are dealing with four-year-olds, or just totally dishonest, corrupt shills? It is some kind of combination of laughable and homicidal-rage-inducing that you need to explain this over and over again.
ReplyDeleteMaybe your posts are just too long. Maybe just say:
We know the President broke the FISA law.
He admits he broke the FISA law.
End of stroy.
It is some kind of combination of laughable and homicidal-rage-inducing that you need to explain this over and over again.
ReplyDeleteI think Republicans, Democrats and the media have been working in tandem from the beginning -- for different reasons -- to avoid what, in reality, is a painfully clear and straightforward fact. The law makes it a criminal offense to eavesdrop on Americans without judicial approval and George Bush did exactly that. He broke the law.
Republicans want to protect their Leader. Democrats want to be relieved of the responsibility of standing up to the President on this issue because, as many people quoted in the post recognize, they are scared. And the press likes George Bush and has been giving him the benefit of every doubt for 5 years now, and the last thing they want to believe about him is that he committed a criminal offense.
So we all pretend that this is a difficult issue or that there is some murkiness about what we ought to do. There's hypocrisy in every corner, but particularly from the Republicans who spent 2 years in 1997 and 1998 subjecting us to lectures about how Bill Clinton -- the Commander-in-Chief with troops in harm's way -- had to be impeached because nothing - just nothing -- is more important than the rule of law.
Did you see Feingold on Jon Stewart last night? If not, get the clip at Crooks and Liars. The directness and simplicity of the case was the most refreshing bit of political theatre I've seen in a very long time. He makes the case directly, sincerely, and without equiviocation or spin.
ReplyDeleteI cannot imagine a better spokesman on this issue.
This isn't going away, not just because of Feingold, but also, as Glenn says, because th3e president breaking the law and violating the fourth amendment has so many ramifications that there are tendrils everywhere. But I'm still glad that Feingold has the lead on this issue, because he gets it, he speaks forthrightly, and he, apparently, isn't afraid.
The best part of the Oregon story is how they found out about the NSA wiretapping in the first place. The conversation went something like this:
ReplyDeleteLawyer: "Hey, can I see the evidence against my client?"
FBI: "Sure, here you go."
Lawyer: "Uh... this is a transcript of my private phone conversations."
FBI: "Oops"
The FBI: It makes FEMA look competent.
Dave
Democrats want to be relieved of the responsibility of standing up to the President on this issue because, as many people quoted in the post recognize, they are scared.
ReplyDeleteI'm starting to reassess the "scared" business. I'm working my way into the they've got their seats, they've got their donors and they don't want to make waves camp. If they're not running for president, like Biden or Hilary, they're taking money from people who are very happy with how this administration operates.
It's hard to explain why a guy like Schumer would not step up to support the resolution. He has nothing to be afraid of.
When I read the observer article early this morning, the last two paragraphs started my day out right:
ReplyDeleteBy contrast, Mr. Michael said, the reigning mentality among Democratic leaders is that “if we take a stand, we risk defeat. That’s a chicken-shit refusal to have a real debate …. The Democratic establishment and the press establishment won’t let that debate happen.”
Senator Feingold seems placidly determined to ignore all that. “Guess what? They’re out of touch,” he said. “That story is finally emerging, now that polls are showing popular support for a censure. It just shows that people in that town are only talking to each other. You can publish that. That’s on the record.”
Feingold is giving his fellow Democrats a well-deserved kick in the ass, and maybe, just maybe, they’ll catch on and jump on this express as it leaves the station, with or without them..
I'm starting to reassess the "scared" business. I'm working my way into the they've got their seats, they've got their donors and they don't want to make waves camp.
ReplyDeleteThat's the conclusion Walter Karp argued in Indispisable Enemies.
I haven't read that book so I can't comment on how convincing a case Karp makes.
Glenn,
ReplyDeleteGreat analysis. Thanks.
Hopefully the Whimpocrats will soon come out of their stupor, see the errors in their ways and take the tiger by the tail. One can only hope. As time goes on, Feingold's resolution, on a number of different levels, is looking like it was a brilliant move.
I'm working my way into the they've got their seats, they've got their donors and they don't want to make waves camp.
ReplyDeleteI agree - I don't think it's mutually exclusive with the fear explanation. It's a form of fear. This is what I wrote in a C&L post a couple weeks ago about the refusal of national Democrats to have anything to do with the blogosphere (i.e., with citizens engaged in the political process and wanting to work within it):
Despite their glaring need for new strategies, so many of these national Democrats are completely closed off to new ways of working because, it seems to me, so many of them are, at bottom, personally satisfied with their chronically defeated, minority status. They prefer to protect the safety of their own individual political positions than to try to find ways to end the string of victories by the Bush Administration.
People like Jay Rockefeller, for instance, want to keep their Senate seat, not fight the Administration. They will choose their own personal interests every time, which are often in conflict with the people whom they are supposedly representing.
There is no question in my mind that Rockefeller would choose to walk away from a fight with the Administration if he could keep his minority seat by doing so. How many times has he, and so many like him, proven that?
Glenn,
ReplyDeleteCertainly, the lack of investigation or a clear ruling does not prevent Senators from voting on a censure. They can vote on anything they like. They could censure John McCain for being on TV too much, Ted Kennedy for insufficient attention to his diet, or Hillary Clinton for saying "jesus" in a sentence. There's really not a limit to what they can vote on here.
The problem you have is that, as clear as the case may be to the prosecutor, it's not that clear to the jury. Unless and until you get a fairly dispositive investigation or judicial ruling, that's the way it look to stay. Merely asserting that it's an open and shut case is not going to sway the jury pool.
You may not need an investigation to make up your mind, but Congressmen are looking for some concrete way to pick through all the legal arguments being made here by both the administration and its critics, and banging the table with the prosecutions case is obviously not sufficient.
To paraphrase what some Senator said to one of the Powerline flacks: well, that's the case being made against the administration. You're merely repeating it.
______________
On the Carter angle, I think you've mistaken the argument being made for the censure of Carter. I take no position on the idea, but they're not arguing that he should be censured for mere "private opinion". The argument is that he should be censured for his foreign policy free-lancing. He's actively attempted to derail the foreign policy of not just this administration, but also of the Clinton and Bush 41 administrations, but going directly to foreign leaders and attempting to, as Slate once put it, "undermine the foreign policy of America's democratically elected president" with his "shadow foreign policy campaign".
This is a fairly well-known problem. One "Clinton Cabinet member referred to Carter as a "treasonous prick" for his behavior."
I don't necessarily agree with the notion of a censure, but Carter is clearly skirting the edges of the Logan Act here. It's much more than a citizen simply speaking freely.
Glenn:
ReplyDeleteThe way I read the sections of FISA you quote, FISA prohibits ENGAGING in electronic surveillance without a warrant. But on one reasonable or fairly reasonable interpretation of the word "engage" President Bush didn't engage in any surveillance at all, personnel in the NSA did.
I haven't read all of FISA, so I don't know whether it also prohibits "ordering" or "authorizing" surveillance, and I don't know whether George Bush actually conducted any of the surveillance himself, in which case he would be in violation of FISA proper, but on any fairly strict reading of the language from FISA you've cited, Bush has not admitted that he broke the law. He admitted that he ordered or authorized OTHERS to break the law. That's equally an impeachable offense, in my opinion, but it's not one that violates FISA, at least not given the language you've quoted.
You might not agree with my interpretation of what it is to "engage" in surveillance. Perhaps engaging in surveillance covers all sorts of activities that are not actually part of conducting the surveillance itself. That's not an unreasonable interpretation. But it certainly isn't clear, without looking more closely at any relevant caselaw and knowing exactly what the president did, whether he violated FISA. (It might be, for instance, that the proper interpretation of "engaging in surveillance" would include a president who ordered surveillance but not one who authorized it. In that case, we would need to know whether Bush authorized or ordered the NSA to conduct this surveillance.)
Like I said, I think this is impeachable conduct either way. In my opinion, ordering or authorizing the violation of a law is an impeachable offense, even if it isn't technically illegal.
Glenn, in your post you stated
ReplyDeleteAnd he re-iterated his opposition to the Dewine Nixon Law designed to render legal the Administration's lawbreaking:
There was a question on another blog about whether DeWine's bill would be unconstitutional based on the Section 9. Here is the comment:
How about Section 9?
I'll ask this question hoping an expert in constitutional law will answer: Wouldn't DeWine be unconstitutional under Section 9 of the US Constitution?
"No Bill of Attainder or ex post facto Law shall be passed."
No one answered this question so I'm posing it to you.
I still don't get it. There's a law that the White House broke and admits to have broken - FISA. They argue they have the right to break it. Congress need a hearing on that? They're open to arguments that the President can break laws when he feels like it?
ReplyDeleteThe analogy is clear:
ReplyDeleteIn a civil suit, there is often a legal finding of liability, before any factual inquiry on the issue of damages.
With the president's admissions, there are no issues of material fact remaining on the legal issue of whether the NSA program violates the law. The censure is just a finding of such violation. Censure him, and then move on to investigate the scope of the violation.
"No Bill of Attainder or ex post facto Law shall be passed."
ReplyDeleteNo one answered this question so I'm posing it to you.
There is nothing in the DeWine legislation which purports to render the prior conduct legal. It simply creates a wireless eavesdropping framework for going forward. Contrary to popular belief, there is nothing in it which expressly protects the Administration from punishment for prior lawbreaking. The practical or political effect of that bill might be that (or it might not be), but substantively, it does not seek to achieve retroactive legalizing of the President's conduct.
Like I said, I think this is impeachable conduct either way. In my opinion, ordering or authorizing the violation of a law is an impeachable offense, even if it isn't technically illegal.
Ordering a subordinate over whom one has control to engage in illegal conduct is always, by definition, itself illegal. A person who orders illegal eavesdropping is, by definition, "engaging" in illegal eavesdropping, and for that reason, the Administration has not ever raised the claim that Bush didn't violate the law because he personally didn't do the actual eavesdropping.
Hendrik Hertzberg at the NYer (first of the Talk of the Town pieces in the 3/27 issue) just jumped in to defend the Democrats'decision to run far and fast from censure saying (get this) they are doing it because independents narrowly oppose censure and "The mid-term election will be decided in places where no Democratic candidate can prevail without overwhelming independent support. Tactical calculations like these are never pleasant. But they are not always sordid, amd sometimes they are necessary."
ReplyDeleteLike it never occurs to him that it's just possible that a display of unity by the Democrats around the issue of censure might actually pick up independent support simply by showing that the Dem can agree on something and show some resolve. That's a "tactical calculation" the Democrats might have wanted to consider.
Calling for an investigation needn't be a dodge. Properly phrased and emphasized, it could be a more moderate-friendly way of raising the same issues that Feingold is raising. So the two approaches aren't mutually exclusive. But the investigation needs to be insisted upon, not just invoked to distance oneself from the Feingold resolution.
ReplyDeleteThis is a good point, in theory. But what makes me extra irritated by this "we-need-an-investigation" excuse for avoiding a position on the Censure Resolution is that so few of these Senators were saying anything at all about investigations - either before the Senate Intelligence Committee voted on whether to hold hearings or after they voted to kill the investigation. Very few of them urged the Intelligence Committee to hold hearings or protested the Committee's party line vote to kill the hearings.
They suddenly discovered their alleged belief in the need for investigations only once they needed an excuse to avoid taking a stance on the Resolution. So while you are right that a call for investigations could be principled and geared towards getting to the bottom of the NSA scandal, the circumstances here leave little doubt that most of them are calling for an investigation only to avoid taking a position on censure.
So it's your contention that the POTUS has absolutely no powers that are not enumerated in the Constitution? That unless it's specifically mentioned, it does not exist and has never been recognized?
ReplyDeleteI love how Bush apologists start sounding like advocates of Roe v. Wade with their new claims that Bush has secret powers in the Constitution which aren't expressly stated. Glenn wrote a post about this before and asked: where are these powers lurking? Behind some emanations or penumbras?
shorter tomaig: Bush can do anything, and I can fantasize about his right to do it. As long as it isn't get a blowjob.
ReplyDeleteTell the truth, tomaig -- you are Instapundit, right? Same level of legal analysis...
I must admit, though, I'm being swayed by the "put it off until there is a full investigation."
ReplyDeleteLook at it this way: the Republicans have done NO investigations of ANYTHING and have stonewalled / rationalized / ignored EVERYTHING. So they are due for a real investigation?
Right? Right? Beuller?
It's hard to explain why a guy like Schumer would not step up to support the resolution. He has nothing to be afraid of.
ReplyDeleteI think you miss the most obvious possible reason: the illegal domestic spying, which goes well beyond the NSA criminality and includes the Pentagon CIFA crap spying on mere political opponents, has captured a lot of embarrassing, even ruinous information on many Senators and Reps.
Schumer, Feinstein, etc, etc, are either terrified of their secrets, acquired illegally by the Bush Admin, will come out, or are simply part of the establishment that gains from business as usual. There is likely to be bits of both involved. Perhaps some of the cowardly Dems have secrets they don't want made public (but that BushCo knows of due to illegal spying) that involves business as usual, ie, perks and money obtained via unethical and illegal (lobbyist) means.
They are terrified because they are cowardly AND dirty. The dirt is known and can/will come out if they really stand against BushCo.
I want the lot of the Cowards Caucus in the Dem party to be flushed down the toilet with the entire rest of the GOP turds in Congress. The limb is thick with gangrene and cannot be saved. The whole thing has to go.
I, like Cole, began to have serious fits with the GOP in the Schiavo matter. But I have to say, I'm just not upset by Robert's dissent in this "who can consent to search" case.
ReplyDeleteTons of courts have long held that only one person with authority over a living quarters need give consent to a search. All this latest decision means is now the cops will wait until their target -- the one likely to say no -- isn't home.
To my mind, as a pragmatic matter, either the target's permission should be necessary, or it is irrelevant. Not some endless permutation of scenarios to be forever litigated.
FWIW, here's my take on the "we need an investigation" argument, from An Overlong Dissertation on Courage, Strategy, Populism and Respecting the Base on March 17 on VichyDems:
ReplyDelete***
[T]he cowerers' claimed desire to "let the Intelligence Committee complete its investigation" before they can challenge Bush is, as Glenn Greenwald has explained to the point of exhaustion, either unmitigated bullshit or inexcusable ignorance: FISA clearly states that it is the ONLY method by which covert electronic surveillance may be conducted on American citizens; the Attorney General and President both admit that they have authorized covert electronic surveillance of American citizens without complying with FISA; their only defense is that the resolution authorizing war in Afghanistan, and/or the President’s Constitutional powers as Commander in Chief, allow him to spy on Americans without warrants in wartime. Gonzales explained the White House position this way:
[T]he Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.
Now, that -- one might argue, now, wait a minute, there's nothing in the authorization to use force that specifically mentions electronic surveillance. Let me take you back to a case that the Supreme Court reviewed this past -- in 2004....
I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity.... We believe that -- and those two authorities exist to allow, permit the United States government to engage in this kind of surveillance.
Setting aside the fact that those arguments can be easily rebutted by any second-year law student at a halfway decent school, it is irrefutable -- even Gonzales would agree -- that those are legal, not factual, defenses. To lawyers and judges -- which most Senators are, though they don't like to say so in public -- that is a critical and dispositive distinction. Matters of legal interpretation can be resolved on their face, as matters of law. Gonzales admits that the surveillance that's occurring -- whatever it entails, whoever it's of -- falls under the terms of the FISA statute. Thus endeth the factual inquiry: the Senate doesn't need an investigation to vote on censure if the only dispute is over the meanings of a law that Congress itself passed and a written Constitution that every Congressman swore to protect and defend.
Besides, the Intelligence Committee Republicans’ party-line vote not to hold hearings into the NSA program, and the pledge they extracted from the Democrats on the seven-member Intelligence Committee Whitewash Squad not to tell what they know to their peers means that there will be no investigation anyway: waiting for the Intelligence Committee to “complete its investigation” is like waiting for Abraham Lincoln to finish watching his play: it ain’t gonna happen, not ever.
***
I recommend that any commenter who really wants to know what is going on, click on the link “agrees” in Mr. Greenwald’s post and read the Jon Henke comment at QandO. Kudos to Mr. Greenwald for including it. In Jon’s post there is a link that answers the question of what the suit by the Oregonian is all about:
ReplyDeleteThe most logical way for a suit to enter federal district court would be if an individual who had been a target of a surveillance were to bring suit against the NSA or the President-- much as detainees like Padilla and Hamdi had standing to bring suit against those responsible for their detention. But such individual suit is highly unlikely. It would require that an individual discover that he or she was a target...
If The Oregonian can get the information it seeks, then someone will have standing to sue and we are off to the SCOTUS. Well, not directly.
"Specifically, what facts remain to be discovered that are relevant to the question of whether the President broke the law when ordering warrantless eavesdropping on Americans?"
ReplyDeleteI haven't been following the situation in Congress, but from the post I gather that an investigation may be unlikely. Nonetheless, I would support a full Congressional investigation. It would be interesting to learn what Congress and the Supreme court would have to say about these questions:
Whether or not the 2001 AUMF is applicable to the "unless otherwise authorized by statute or by Congress" provision of FISA discussed by Attorney General Gonzales.
Whether or not the 2001 AUMF independently authorizes warrant less surveillance of known terrorist agents discovered within the borders of the United States, whether or not they happen to be U.S. citizens, as an essential part of conducting the war authorized by Congress.
Whether or not the President as CiC of the armed forces has the independent inherent Constitutional power to authorize warrant less surveillance of known agents of a foreign enemy discovered within the borders of the United States, whether or not they happen to be U.S. citizens, on an emergency basis during a time of war (any war).
Whether or not FISA, to the extent that it is in conflict with the President's inherent Constitutional war powers as CiC of the armed forces, is unconstitutional.
Yes, I know Mr. Greenwald has already dismissed the administrations arguments, but regardless of who is wrong or right, isn't it up to the legislative and judicial branches of our government to come up with a final determination of all this and set the official record straight?
This is why I love the comments on this blog. I read Glenn's post and one of my first impressions was that we are up against something more insidious in congress' refusal to act on this scandal than their stated desire to have an investigation before they can know what to do. I don't buy their excuses, and my feeling is that we are dealing with something more entrenched, if rather vague, than their claims to need more info.
ReplyDeleteAfter reading the comments I see the folks here have already raised the point (Hume's Ghost), and made it more clear than I saw it.
It's not as vague as I thought. Hume raises exactly the problem. It's congress' willingness to toss aside their responsibilty to us, and concentrate their efforts on keeping their asses in their seats at the trough. Glenn also hits it on the head with his analysis of the various prejudices of the players involved--media, republicans, dems-- and their respective reasons for avoiding the issue of NSA lawbreaking.
I believe we have problems here that will take major overhauls to fix. Obviously I prefer to see republicans tossed out this November, but it might be just as important to make sure the Democrats feel the pressure to respond properly to public input or be replaced by someone willing to do her/his job.
Frankly I'm getting sick of the whole lot of them. The corruption that the lobbyist infiltration of govt represents is responsible for most of the unwillingness of memebers of either party to rock the boat. They are far more interested in maintaining their status as beneficiaries of corruption than they are in doing the job required of them by their constitutional role in the process of checks and balances. Everybody is aware of the corruption problem in American govt today, but i don't think it's been appreciated yet just how far down that road we've gone. Our govt has become almost completely disfunctional because of it. Until we all realize how endangered our democracy is we won't be able to even start to fix things.
The current debate about NSA spying and congress reasons for avoiding dealing with it hinge on the problems created by congress' loyalty to its own corrupt system of money/election politics. After seeing Patty Murray's response I finally realized what a battle we have on our hands. It will take more than explaining what common sense it is for them to do their jobs and check executive over-reaching. It will take them feeling threatened with losing their seat if they don't step away from the stranglehold of lobbyist money. Someone has to make it clear we're onto them and that we know the real reason why they won't rock the boat. And that we intend to make them pay for it if they continue with the staus quo.
This won't be easy. Its far worse than most have acknowledged. But we have to see how big the mountain is before we can summon the strength to climb it. Time to start putting one foot in front of the other.
It's frustrating that some commenters are still saying that investigations are a good idea. Yes, they are. But it's like saying you don't want to prosecute Al Capone until Al Capone finishes his investigation of Al Capone's illegal activities.
ReplyDeleteThe Senate Democrats do not have subpoena power. They can't do any investigations without Republican support, and the Republicans are refusing, on party lines, to participate in any investigations (other than the 7-member Senate Intelligence whitewash squad -- which is sworn to secrecy and can't even tell other Senators what it finds out).
***
A person who orders illegal eavesdropping is, by definition, "engaging" in illegal eavesdropping, and for that reason, the Administration has not ever raised the claim that Bush didn't violate the law because he personally didn't do the actual eavesdropping.
This is a historically interesting side issue, btw, because I think it's what Nixon really was talking about when he made his famous "if the President does it, it's legal" comment: I've always thought he was trying to say that his underlings couldn't be held responsible for what he ordered them to do under the auspices of national security, then became flustered when he realized the implications of that position (to-wit, that the criminal responsibility would then flow up to him).
But that's just an historical footnote. Nixon's analysis was wrong too, and Bush broke the law.
Give 'em hell, you guys. I find it disturbing thta this type of debate hasn't crossed outside of political blogging circles, but maybe the ripples here will spread to op-ed pages across the heartland....
ReplyDelete"But on one reasonable or fairly reasonable interpretation of the word "engage" President Bush didn't engage in any surveillance at all, personnel in the NSA did."
ReplyDeleteAs you said, it's equally impeachable, but that's because it's equally illegal. Ordering someone to violate FISA is violating FISA, the same way that hiring someone to kill your wife is killing your wife. You don't go in front of the judge and say "I didn't pull the trigger". The same way that would violate a law against murder, ordering the NSA to do this wiretapping violates FISA.
I don't think when people talk about Bush "engaging" in wiretapping that he's sitting in a van outside someone's house with headphones on. Ordering the action is engaging in it as well.
Ping The Film Diva: try this. My hopes are a little higher.
ReplyDeleteAs we saw in the coverup of the theft of 2000 election, the way chimpy exploited 9/11, Enron and Worldcom, the run-up to a war of conquest based on lies, TREASONGATE, a variety of war crimes and crimes against humanity, the coverup of chimpy's TANG AWOL, the swiftboaring of Kerry, the Social Security Bamboozle Tour, Abramhoff, and Katrina, NSA -- truth means little.
ReplyDeleteWhen the repugs and enablers of the chimpanzee cannot spin their way out, they just continue to shout lies until the next scandal erupts.
In reality, each NEW scandal is used to enable the PREVIOUS one by providing cover.
We can continue to expect this from the other side and probably need to continue to education the public, showing a great deal of tolerance and acceptance.
Building a coalition that will be large enough for change, given our non-verifiable elections, will mean we have to choose battles carefully.
All good points, Glenn, I am just questioning if addressing some of them are even necessary. I know your integrity is important, and I am grateful for that. Please keep up your intellegent analysis.
Your open-mindedness and avoidance of the "herd" mentality makes UNCLAIMED TERRITORY a unique breath of fresh are among the "so-called" liberal blogosphere
Oh, and about this spreading to "Op-Ed pages": letter to editors tool.
ReplyDeleteIt's interesting that Peter Daou puts Balloon Juice on the left side of his page. We really are on our way to the divide being between authoritarians, consitutionalists, and gutless incumbents.
ReplyDeleteThe wiretapping of attorneys in Portland demonstrates the reason Bushco will not disclose the activities of its surveillance program. They are listening to whomever they wish.
ReplyDeleteWhat can you do to protect yourself?
Keep your cell phone turned off when you are having a conversation with your attorney.
Cell phones are great listening devices and can be turned on to act as a microphone by the communications industry, without appearing to be active. Yes, your talking at lunch with your attorney, you both have cell phones on the table, and if the government is interested in you they have a listen device available to them. I know this and I am sharing this because I believe in the constitution.
Attorneys will be the ones to restore the rule of law and they need to know what the government is capable of.
Seemingly OT, but hardly.
ReplyDeleteFirst, let me say that I am feeling quite stupid this morning. I am chagrined by my willingness to be fooled about the contents of a book by its glossy, congenial, commerically slick cover. I vow to try to never do that again.
In what I consider to be one of the most important Supreme Court decisions ever to come down, both because of its majority opinion and its dissents, Chief Justice John Roberts, about whom I initially was skeptical but came to support fully during his hearings just proved me 100% wrong.
My bad.
I do thank him, however, for singlehandedly delivering the 2008 Democratic Presidential nomination to Russ Feingold, as well as the Presidency itself.
By the time 2008 rolls around, I expect that the full significance of yesterday's decision will have been made more than real to every American, even in those 20 second sound bites which Bart, in his infinite disdain for the intelligence of his fellow American citizens, seems to prefer.
The fact that CJ Roberts has pulled aside his robe enough now to reveal the fascist underpinnings which lurk beneath is one thing.
The sheer audacity with which he is willing to allow the fascist in him to trump his professed love for the Consitution is another.
That we all know precisely how Alito would have voted on this case is a third. Alito has already made his view known about this issue in some of his lower court dissents.
And the blinding stupidity of Robert's reasoning in his dissent is a fourth unto itself.
I expect that by the time 2008 rolls around, with all that is going to come out between now and then and all that is going to become evident to the "average American citizen", who just happens to be a patriot, he will by then fully understand what is really at stake now in this country.
And he will be ready, willing and able to act like a Patriot and take back this country from the rogue element which has so audaciously hijacked its government.
And I am not talking about the Republican party, which in some ways is the most tragic victim of this hijacking.
I am talking about the "rogue" element (in the Executive, the Congress and the Judicial) which has been trying to wrest control of this country away from "We the people" into the hands of "We the Brownshirts", as Paul Craig Roberts describes them.
Some writers have suggested that the important thing right now is to STOP President Bush from continuing his illegal programs and that is their motivating factor in supporting Feingold's motion for censure.
But it's possible that another Supreme Court vacancy will come up before 2008. If so, every last soldier will have to be re-deployed to that one battlefield, and some real American Generals will have to be appointed quickly, people like Glenn, to lead the troops into battle.
Stopping a President with three years left on his term from continuing to break the law is one thing. Stopping a rogue SC with lifetime appointments, subject to no review except by their fellow Justices, a SC which is one seat away from declariing that breaking the law and violating the Fourth Amendment is in fact consistent with the Constitution is another.
I do thank CJ Roberts, in his
shocking and monumentally stupidly reasoned dissent (who was his ghost writer, Glenn Reynolds?) for handing us such an easy to explain issue.
Abortion may be a divisive issue, because of the great divide that will also exist between religion and reason.
Affirmative action, quotas, social engineering, antitrust, rights of criminals, etc. can and are argued back and forth.
But there is one thing that every single true American outside of the rogue element understands in the very marrow of his bones.
In America, a man's home is his castle, and the Constitution allows him to hang a sign on it saying "Keep out, Fascists. Enter only with a warrant issued upon probable cause, signed by an impartial magistrate, and specific in its authorization. And if you are in a Jack Bauer moment where actions taken outside the law are necessary and proper because of the emergency circumstances, be prepared to take responsibility for operating outside the law. But do not use the emergency situation to justify passing a new law which is unconstitutional."
I wonder what jao and hypatia think about yesterday's Robert's dissent. And I wonder, if they will concede that Alito would have voted with the minority on this case, what they now think about their support for Alito.
Finally, I hope someone like Glenn will be writing in the not distant future about the real biologic parent of the "War on Terrorism", that parent being the "War on Drugs" which allowed most of the unconstitutional and strikingly unamerican police state tactics to take their first baby steps in this country.
Considering that there appears to be a certain small minority of the country whose brains have died but whose mouths keep yapping, I am glad this case got to the SC where the facts have to do with drugs and not "terrorists." That particular debate might have frayed the nerves beyond repair.
I myself will be writing a lot about what the "War on Drugs" is really about, and here's a hint: it's not about drugs.
I conclude by saying that I have not yet read a single word about this decision other than the NYTimes article which dicusses the majority and the dissent opinions, but I don't care what another human being in this world says about it, not Glenn Greenwald, not Paul Craig Roberts, not hypatia not jao, not anyone else.
I know what I think. And nothing will ever change my mind about this decision. Nothing.
Once you all have read the decision, I would be interested to read what you all think about it.
I hope The Oregonian has more luck...
ReplyDeleteGovernment won't have to say whether secret wiretaps used
BUFFALO, N.Y. -- The government doesn't have to tell three men accused of illegally sending $3.5 million to Yemen whether secret wiretaps were used to investigate them, a judge ruled.
Lawyers for Mohamed Albanna, Ali Elbaneh and Ali Albanna requested the information as they defend the men against charges of running an unlicensed business that delivered money from Yemeni-Americans in western New York to relatives overseas.
The defendants already know that investigators used at least six court-approved wiretaps to monitor their telephones, fax machines and cellular phones in 2002 and 2003. But attorneys sought information on whether investigators also eavesdropped on phone and e-mail conversations without a judge's permission following recent disclosures that President Bush allowed such searches in attempts to sniff out terrorist plots.
The Lackawanna men were charged in December 2002 following an investigation by the Joint Terrorism Task Force. None has been accused of having any involvement in terrorism.
U.S. District Judge William Skretny, in an order dated Tuesday, denied the defense request for information without explanation. In his one-page decision, Skretny said he had reviewed the government's classified response to the January request in private. ...
But Alito will save our civil liberties, according to the experts here, no? Here's a bit more evidence about how he might stand. The following quote is the last para of Ronald Dworkin's response to a letter, by Charles Fried, to the editors of the NRoB, April 6, 2006:
ReplyDeleteFinally, I should report, as an addendum to my article on Judge Alito, a disquieting decision he made soon after his confirmation. Justices commonly appoint as their law clerks very recent law school graduates with outstanding academic records and serve the justice for a year before beginning their own careers. Alito has appointed a thirty-seven-year-old high ranking lawyer at Time Warner, Adam Ciongoli, who was a senior aide to Attorney General John Ashcroft and helped design the Bush administrations's controversial antiterrorism legal strategy. Law clerks often advise justices and help write their opinions; Alito's choice of clerk with a strong partisan background and personal involvement in the political decisions that are very likely to be reviewed by the Court will not reassure those who fear that despite Alito's evasive performance at the Senate hearings he wll becom an extreme and unabashed right-wing member of the Court.
it is comforting to know that it took john cole as long as it did me to change his mind/open our eyes.
ReplyDeleteschiavo was my major turning point.i turned off fox news then.then this nsa spying really galvanized me more.
i wish that when people said if you dont have anything to hide you shouldnt have a problem with nsa spying,that we could make the point more point to where bush has advocated so much secrecy that our constitution is in dire danger.
ty glenn for your excellent coverage.
br3n
This story about the Oregonian going after the govt for its behavior in the case against the group in Ashland (who really have been responsible memebers of the community out here for a long time before the govt went after them) is just the first in what I imagine will be a long line of petitioners demanding the courts get involved in the govt abuses since 9/11.
ReplyDeleteAs I've said before, there are just too many systemic checks for the govt to get away with this for very long. Ultimately I believe it will be the courts that slap Bush down. I don't think we'll have the time to make the vast overhaul of congress necessary to get them to do their jobs before the courts have their say. Its a bummer on the one hand, but on the other we will see the American System kick in and deal with this blatantly illegal attempt to create a King out of the POTUS.
Ultimately I have faith in our system. I think we'll even see the torture scandal laid bare and Americans will come to their senses and we'll be properly stunned by what's been done in our name. Enough so to toss some of the real players in jail. Rumsfeld belongs right there with all the other justifiers of torture we've seen in the last century.
All of us were angry after 9/11, and a lot of people wanted to see someone pay, including me. But ultimately we don't torture people. We have a system of justice that's worked for over 2 centuries, and torture has always been absolutely forbidden.
I remember the pride I felt as a kid when I read about the difference between America and some of our enemies in how we treated our POWs, going all the way back to the Revolution. The stories about the Japanese who thought they'd be tortured but who instead became faithfil believers in Constitutional Democracy after their trip through our POW camps made me proud as a kid. The difference between people who torture and people who don't is something a kid can easily get his/her mind around as they learn about right and wrong/good people and bad people.
Rumsfeld's willingness to toss aside the Geneva conventions, with all the ramifications this has for our troops, shows how completely out of touch this he and the rest of this administartion are with American values. There are people who will jump to defend them, and who will claim they couldn't care less if our enemies get tortured, (or worse, would actually like to see it happen) but that just shows you how important it is for the anti-torture treaties to be followed, and to be firmly ingrained in our troops. Too many people lack the inner guidance to naturally abhor torture. This goes for all humans, both on our side and on our enemy's. Rememebr the psych trials that established that the vast majority of us will do as we are told, even if it means torturing someone, as long as an authority figure is there ordering it? There aren't enough people with the natural abilty to draw that line on their own to trust our troops' fates to the morals of whoevers' hands they fall captive to. If it weren't for these treaties the only hope for American POWs would be the slim cgance that they are captured by one of those rare individuals who won't torture them. Only the consequences faced by people who ignore these laws keep our troops safe. For those who think torture is OK for our enemeies, all I can say is, your the same kind of person you claim our enemies to be. If our troops fall into the hands of folks like you from the enemy camp, they will be tortured. Unless the laws are so strictly enforced that it makes folks like you think twice before you start burning out eyeballs.
Rumsfeld shouldn't be tortured either, but a good long stay in a federal prison would give him time to think about the damage he's done. He can answer to whichever God he prays to for the lives of those innocent people who were tortured to death because of his orders.
The Death of Dilawar
http://bodyandsoul.typepad.com/blog/2005/05/most_of_whats_i.html
(Sorry i can't get the link to work. i need another lesson i spose)
He should be surrounded in prison by their pictures all the while he's there.
EWO: I wonder what jao and hypatia think about yesterday's Robert's dissent. And I wonder, if they will concede that Alito would have voted with the minority on this case, what they now think about their support for Alito.
ReplyDeleteI reserve my outrage for outrageous things. Consent obviates the warrant requirement. It is long-settled caselaw that one party with joint authority (say, domestic partners) over a premises may consent to its search. If another party objects that has still been ok, as many, many lower federal courts and state courts have held -- these courts have not been "fascist."
Indeed, even with yesterday's SCOTUS ruling, only one party need consent -- and it need not be the target of the search who is likely to say no -- if the other is sleeping or not home, and thus in no position to object. As a practical matter, this just means cops will wait until the target isn't home to request consent to search.
I think Roberts' opinion as to why this is a goofy result is mostly
accurate. Most definitely I do not see it as an omen that Roberts-driven fascism is upon us.
anon writes: schiavo was my major turning point.i turned off fox news then.
ReplyDeleteSame thing here. That was revolting, repugnant, disgusting --beyond description.
I think Roberts' opinion as to why this is a goofy result is mostly accurate. Most definitely I do not see it as an omen that Roberts-driven fascism is upon us.
ReplyDeleteI think what it shows it that on every real issue of dispute regarding government power v. individual liberties, Roberts is going to side with the Government. That isn't a new revelation, but these kinds of decisions just confirm it. That is why he was chosen by a President who, more than anything else, cares about obliterating any limits on the powers of the federal government.
Given the "reasonableness" standard of the 4th Amendment, it's inevitable that there are going to have to be some case-by-case determinations. There is something unseemly about finding "consent" to search when one of the occupants is objecting, but the larger significance is the tone of the opinions.
Tempermentally, Roberts is a fan of expansive Government power at the expense of individual liberty and, at the moment at least, that is a very significant matter.
Here's a link to further information about yesterday's important Fourth Amendment ruling by the Supreme Court (or click above):
ReplyDeletehttp://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x2183095
An excellent NYTimes article by Linda Greenhouse is linked there, as is the full ruling in PDF form.
I agree with you, eyes wide open, on both the importance of this ruling, and on what it reveals about Chief Justice Roberts.
I APPLAUD the majority on the Court for their principled defense of the core spirit and letter of the Fourth Amendment to the Constitution. We, the People won a victory against the government's police powers yesterday, and I am grateful for it.
CJ Roberts, on the other hand, in what I thought was an almost shrill, but at least scoffing, tone energetically disagreed with the (5-3 with Alito uninvolved) majority opinion. His whole basis for this is an argument that two co-tenants in a dwelling, by the act of agreeing to co-tenant, inevitably RELINQUISH ("yield") some of their inherent Fourth Amendment right to privacy from the government, by virtue of sharing their dwelling with another. Thus CJ Roberts declares that when one co-tenant at the door asks the police to come in without a warrant to search, and another co-tenant at the door says do NOT come in without a warrant to search, the co-tenant who invites the police in has the right to do so, and the one who refuses has no right to object under the Fourth Amendment by virtue of having decided to live with another person. In short, if we do not live alone, our right to privacy under the Fourth Amendment is REDUCED rather than MULTIPLIED by the number of others with whom we live, says CJ Roberts.
He thinks this sort of warrantless intrusion is a "reasonable" practice under the letter and the spirit of the Fourth Amendment's BAN on unreasonable searches and seizures without a Judicial Branch warrant. [I think CJ Roberts also falsely equated the two-way street of inherent rights for co-tenants sharing a dwelling, with the one-way street of a person sharing private knowledge or documents with another who could then obviously choose to share them with the police without the first person's consent.]
Thankfully, the majority wisely disagreed and upheld the Georgia Supreme Court, thereby reinforcing our clearly enumerated Fourth Amendment rights, instead of allowing them to be frittered away.
I think the bloom is off the CJ Roberts rose for me.
Something fo a non-sequitur, but germane to the overall discussion vis-a-vis Dems vs. Reps.
ReplyDeleteIdea for an advertisemnt:
Text under intimidating, Big Brother graphic:
On February 6, 2006, the top prosecutor of the United States, Attorney General Alberto Gonzales, told Senators: There was not a war declaration, either in connection with Al Qaida or in Iraq. [Transcipt of testimony before the US Senate Judiciary Committee, in Washington Post, February 6]
[space]
Then why do President Bush and the Republican Congress want to take away your rights, listen to your phone calls, open your mail, and search your home without a warrant?
Worried? You should be. Call (608) 831-1308 [Feingold's office; he needs to get a national 1-800 or 1-888 phone number]
Someone with graphics abilities is free to use this.
Glenn: it may be "unseemly" for the police to search areas of common authority when one of two holding that authority objects, but in my opinion it is not unreasonable wrt 4th Am standards. The individual occupants still do, of course, maintain an expectation of privacy in locked boxes under their beds and such. But if you volunteer to share common quarters with someone, you give up your expectation of privacy as one that is individually held. To my mind, that is common sense. But if it isn't, then it should be held that no search can occur until the permission of all occuppants is obtained, absent a warrant.
ReplyDeleteAnyway, this post by Orin Kerr and his comments section approach this decision in a reasoned and reasonable manner.
Scalia was a Reagan appointee. Thomas, Bush 41. They both also dissented. Bush 43 isn't the first Republican president who made appointments who are deferential to police. I don't always think they are wrong; that every search undertaken by any cop anywhere should be deemed unreasonable. And sometimes, as with Scalia vis-a-vis high tech searches sans warrants (a no-no, he held), sometimes they come down exactly right.
Neither Democrats nor Repuplicans appoint the people I would most prefer to see on the High Court. Randy Barnett isn't on anybody's short list.
Glenn - have you seen that one of the candidates for NY AG is promising to file a Show Cause against the Fed Gov if elected?
ReplyDeletehttp://seanmaloney.com/Blog/
Justice Souter: "In the dissent's view, the centuries of special protection for the privacy of the home are over."
ReplyDeleteThe NY Times comments on:
.... Chief Justice Robert's reference in his opinion to Justice Breyer's having joined "what becomes the majority opinion", an odd prsent-tense locution suggesting that the outcome had once been otherwise."
Translation: Roberts is not really a Justice at all. He is a politician who does his bidding at the instruction of Albert Gonzales, John Yoo and Bushco.
He is saying "Please take note Bart, Glenn Reynolds and Andrew Hyman: We were almost cagey enough to hoodwink Breyer, and if someone, unfortunately, hadn't slapped some sense into him plus if Alito had voted, we would have had a majority. So make very certain that when the next vacancy appears, a Justice will be put on the court who will join the Opus Dei contingent and help them usher in the Police State."
EWO :Translation: Roberts is not really a Justice at all. He is a politician who does his bidding at the instruction of Albert Gonzales, John Yoo and Bushco.
ReplyDeleteHe is saying "Please take note Bart, Glenn Reynolds and Andrew Hyman: We were almost cagey enough to hoodwink Breyer, and if someone, unfortunately, hadn't slapped some sense into him plus if Alito had voted, we would have had a majority. So make very certain that when the next vacancy appears, a Justice will be put on the court who will join the Opus Dei contingent and help them usher in the Police State."
Wow.
I'm not on that bus.
On the Carter angle, I think you've mistaken the argument being made for the censure of Carter.
ReplyDeleteThe criticisms of Carter go back years, and all of them were trumpeted when he was up for the Nobel Prize in 2002, no one at the time mentioned censuring him. Why not? Hmmmm.
This is new and it is a response to Feingold. Moreover, it’s being pushed by World Net Daily, Move America Forward, and right-wing groups associated with “swift-boating” people. The purpose is to muddy the waters regarding the concept of “censure” and there will no doubt be calls to censure other politicians that actively oppose Bush.
It has already started with Feingold. Blogs for Bush has been beating that drum ever since Feingold proposed censure. And their reasoning is simply the smear campaign that will be waged against anyone who opposes Bush, including the entire Democratic Party.
While we all know the censure motion wasn't going anywhere, the enemy isn't that knowledgable and likely saw it as a real thing and a signal that America is about to cave in to them in the War on Terrorism. This tends to give heart to the enemy and keeps them fighting even though their military cause is quite hopeless.
The on-line petition to censure Feingold reads:
As a concerned citizen, I am expressing my disappointment and outrage at the actions of Senator Russ Feingold and his formal call for censure of President Bush. Such actions during a time of war are unfounded and irresponsible, and as such put our troops and our nation further at risk. I urge the Senate to reject Sen. Feingold’s call for censure. Also, I am calling on Senate leadership to formally censure Sen. Feingold for his actions. It is fully within the authority of the Senate to censure its own as a formal statement of disapproval of a Senator’s actions.
As Bush supporters are further backed into a corner, becoming increasingly desperate, we will see more of this. Are they going to censure all Democrats who sign it? Why not? Doesn’t the act of signing it “put our troops at risk” and our nation? This comes real close to saying that supporting censure is treason – it comes right out and says it helps the terrorists – Rove’s basic talking point.
Actually, this is a bluff, the Democrats know it’s a bluff, and they should welcome this – not run from it – it shows the extremism of Bush supporters. Sure go ahead, make my day, censure all the Democrats.
One movement for censure has bi-partisan support, with long-time conservatives and Republicans supporting it. The other is simply a smear campaign run by the dishonest slime that smear people for a living. The differences between the two are abundantly clear.
It's long been caselaw that one co-tenant can give permission to search in the absence of the other co-tenant. No problem there. What I'm not hearing from any of Roberts' defenders an answer to this question: cops knock on door. Both tenants answer. Cops ask to enter. One tenant says sure; other tenant simultaneously says, "hell, no!" Should cops have the right to enter? If so, why should your roommate have authority to waive your rights?
ReplyDeleteI'm asking for a serious anwer, from anyone who thinks the cops have that right in that circumstance.
anyone who opposes Bush, including the entire Democratic Party.
ReplyDeleteActually, this is pretty funny. Dem leadership: take no action, so we don't get attacked by the Republicans. Republican response: attack them anyway.
Reminds me of my little brother; he used to point a toy gun at me and say "hands up!" Then, when I'd raise my hands, he'd shoot me anyway. I never could get him to understand that those weren't the rules.
"I believe we have problems here that will take major overhauls to fix. Obviously I prefer to see republicans tossed out this November, but it might be just as important to make sure the Democrats feel the pressure to respond properly to public input or be replaced by someone willing to do her/his job."
ReplyDeleteAnyone who wants to do *precisely* this very thing should support the congressional candidacy of Marcy Winograd.
Marcy is running a primary challenge against Jane Harman, in my own district: CA's 36th. The 36th, FWIW, is a safe Democratic seat (Kerry carried the district in '04: 60%-40%). I don't even know if the GOP is gonna bother to run a candidate this year (two years ago, the GOP offered only token opposition: a school teacher who paid for his entire candidacy out of his own pocket). For better or worse, the winner of this Democratic primary WILL be the winner of the congressional seat.
The seat's current inhabitant, Jane Harman, is one of the key Democratic supporters of the president's illegal warrantless eavesdropping program. She was one of the four Democratic members of Congress briefed years ago on the nature of the program, and who chose to remain silent. And when the program was finally exposed, Jane Harman voiced her outrage... not at the administration for engaging in this program, but at the NYT for daring to speak of it.
Marcy Winograd, by contrast, is an outspoken opponent of this program, and will immediately vote to halt warrantless spying on all Americans. She estimates that 19,000 Democratic votes on primary election day (June 6, IIRC) will carry the day over Harman. That's 19,000 votes from the progressive communities of Venice, Mar Vista, West LA, Torrance, etc. This can be done.
To join me and my family in volunteering your time, money and energy to the doable task of evicting Jane Harman from Congress, and replacing her with someone willing to provide, you know, Congressional oversight, please check out Marcy Winograd's campaign websites:
www.gomarcygo.com
www.winogradforcongress.com
Thanks,
Patrick Meighan
Venice, CA
thersites asks:It's long been caselaw that one co-tenant can give permission to search in the absence of the other co-tenant. No problem there. What I'm not hearing from any of Roberts' defenders an answer to this question: cops knock on door. Both tenants answer. Cops ask to enter. One tenant says sure; other tenant simultaneously says, "hell, no!" Should cops have the right to enter? If so, why should your roommate have authority to waive your rights?
ReplyDeleteAmanda and Julie are co-tenants. Amanda invites Jim over for dinner. Julie comes home -- she hates Jim, sees him eating in her kitchen and demands that he leave, or she is calling the cops and having him charged w/ trespass.
Amanda and Jim insist that he is staying and finishing their meal. Then they are going to watch TV in the common living room. Julie calls the police and they come to investigate the situation. Amanda tells the cops she wants Jim to stay, and Jim says he is staying. Julie again insists that he should leave, and that since he won't he should be arrested.
Should Jim be arrested?
Hypatia: As to your little thought-experiment. In Minnesota, at least, it depends on who owns the house.
ReplyDeletePinging Patrick Meighan: I'm asking the readers at my blog to sound off about the Harman/Winograd race. Please chime in, and ask others to do the same; I need knowledgeable input. Thanks.
ReplyDeleteHypatia: As to your little thought-experiment. In Minnesota, at least, it depends on who owns the house.
ReplyDeleteAssume Julie and Amanda are joint tenants on the deed, or co-tenants on an apartment lease.
How about this proposed filing from Sean Maloney, candidate for AG in New York, seeking declaratory and injunctive relief against the NSA for violation of NY state wiretapping laws?
ReplyDeleteRather than sit around while the Senators debate having an "investigation" Glenn rightly submits would be pointless, let's evaluate this maneuver that seeks to get straight to court with it.
Hypatia: Your scenario implies that there's nothing objectively wrong with Jim being there, and that Julie is being unreasonable. But the Constitution provides that citizens have every right to deny police entry into their homes absent probable cause -- i.e., that refusing a police officer entry is a reasonable option. Not necessarily the "best citizen" option in some people's book, but reasonable and proper nevertheless.
ReplyDeleteSo I'd revise your hypothetical a little: what if Jim hit Julie once, and she's afraid of him? Does Amanda have the right to let Jim into their shared home if it reasonably threatens Julie's safety? Because if, for example, I had a little hydroponic farm in my closet, I'd feel that a police officer coming into the house threatened my safety.
How about this proposed filing from Sean Maloney, candidate for AG in New York, seeking declaratory and injunctive relief against the NSA for violation of NY state wiretapping laws?
ReplyDeleteInjunctions that change the status quo are notoriously hard to get, and courts are reluctant to intervene in national security decisions, especially in the absence of an injured party standing right in front of them. (It's different when they're deciding whether or not evidence is admissible in a particular case -- for example, Miranda said courts won't consider admissions by defendants who weren't read their rights; it didn't order the police to read people their rights.)
So the chances of actually obtaining this injunction are extremely, extremely slim, and even if it's granted, the White House will tell the judge to go to hell under separation of powers (and probably would be correct in doing so, for a change).
On an earlier point and question: As I understand it, and speaking a little loosely, "bills of attainder" and "ex post facto laws" both involve making criminal persons or conduct that were not criminal before. A law that retroactively legalizes conduct that was criminal at the time it occurred is therefore neither a bill of attainder nor an ex post facto law - just the opposite, in fact.
ReplyDeleteHypatia said...
ReplyDeleteShould Jim be arrested?
Hypatia, I don't think so. Co-tenants each have a right to possess the whole property. In fact, Amanda could lease her interest in the property to Jim and Julie couldn't do a thing about it.
Actually, I don’t think it was Robert’s decision that caused John Cole to abandon the Republican Party, that was just today’s news.
ReplyDeleteHe has been teetering on the edge of leaving the GOP for quite a while, and yes the Schavio fiasco brought him to the edge, but it was Santorum (his Senator) which constantly provoked him into rage:
I understand that one of the necessities for majority status is coalition building, but I am almost to the point that I would be willing to let the entire Santorum wing of the party die off- even if it meant minority status for the next ten years. Although on many budgetary issues this is the wing that holds down spending more than the rest of the coalition (given the spending of the past few Republican congresses, that isn’t saying much), I am sick of their antics, I am sick of their culture wars and their pet wedge issues, I am sick of them ramming God down everyone’s damned throat, and I just want them to go away.
What happen, in short, is that the Republican Party for many years shifted farther to the extreme in order to satisfy the religious base and in the end, Rove was campaigning exclusively to that base, ignoring all the people like Cole who were uncomfortable with it.
But the religious base will never be satisfied - never – and that is a lesson that Rove (and the party) didn’t learn, they were too busy gleefully orchestrating pet wedge issues, and they’re doing it again this election with the new bogeyman being gay adoption.
Rove has been catering to the base and ignoring the middle for so long that he took “the coalition” for granted and just figured they would put up with a bit of forced religion as long as they got their tax cuts and defense-spending corporate-welfare hand-outs. He forgot about the “Main Street” part of the coalition who benefits from neither, and has been alarmed by both.
This provides the Democrats with a valuable opportunity to build a coalition that could hold up until the religious right is brought to heel within the Republican Party and less extreme candidates are more the norm.
If the Democrats could ever get their act together, a coalition based upon “efficient government” (after Katrina) and “limited government” in the private lives of people, combined with a return to the “rule of law” and an accountable chief executive, could be successful enough to get rid of the lawless monarchists who take for granted that they will assume the throne to continue Bush’s authoritarian legacy.
Once that’s accomplished (and the democratic process saved) we can go back to more traditional arguments and differences.
In the meantime, welcome John Cole.
dave said...
ReplyDeleteThe best part of the Oregon story is how they found out about the NSA wiretapping in the first place. The conversation went something like this:
Lawyer: "Hey, can I see the evidence against my client?"
FBI: "Sure, here you go."
Lawyer: "Uh... this is a transcript of my private phone conversations."
FBI: "Oops"
The FBI: It makes FEMA look competent.
You think so? You think the FBI is that stupid and incompetent?
Maybe. But always make sure never to accept anything at face value.
I've been on the other side of an FBI investigation of a major defense contractor. Sometimes brilliant, sometimes as human as anyone. It's definitely possible for them to accidentally overproduce documents.
ReplyDeleteThen, of course, there's the "I want to help save the Constitution from these nitwits but I don't want to ruin my career by whistleblowing" possibility...
"Hume's Ghost said...
ReplyDeleteI'm starting to reassess the "scared" business. I'm working my way into the they've got their seats, they've got their donors and they don't want to make waves camp."
Hi! See you near the canoes when you finally get here!
Your scenario implies that there's nothing objectively wrong with Jim being there, and that Julie is being unreasonable.
ReplyDeleteIt implies no such thing.
One owner has invited Jim to stay, they other has demanded that he leave. Should he be in legal jeopardy for staying?
Tomaig:
ReplyDeleteI'm going to take you at seeming face value and answer directly - I think you might likely just want to troll - but in case not:
1. As to the President's "inherent" rights. I can't say in the overall universe of all things that might be as to whether or not he has rights not otherwise based in direct Constitutional reference. However, with respect to the NSA program, I can say that he does not, on the basis of some claim to unspecified, unenumerated rights arising to his CIC status in a situation where we do not have a war declaration - have the right to violate FISA and to violate the 4th Amendment warrant requirements. BOth FISA and the Fourth are specific and enumerated and control.
Here is the best way I know how to explain the interplay of FISA and the Congress and the President to you. Congress is like the parents. The President is like a child. Let's say the child decides to start sneaking out at night or staying out all night. His parents have never given him a curfew. Does he have a "right" to do that? Well, maybe.
However, after a long period of time (think several administrations) someone catches the President sneaking out (Church COmmission, Katz, Judge Keith's case) and bring it to the Parent's attention. Let's say that someone is a policeman (kindo f like the courts in Katz and Keith case). They tell the Parents that everyone is about to get into big trouble bc there city has a curfew. So, Parent's react by also creating their own curfew that tracks the city's but also add on some requirements like phoning home, etc.
Now - once those things have happened, whatever claim the sneaking around President had to a) "not knowing" the city had a law and he was acting illegally, and b) thinking he had some inherent, unenumerated right to sneak out in the middle of the night bc his parents had never told him he couldn't, and c) thinking he didn't have to call home and check in ----
all those claims go away. IOW, the argument that the PResident's rights to act when there has not been case law on point or where there has not been a law telling him he couldn't --- fall.
The "President's power where there is no legislation v. President's power where there is legislation that prohibits him" is pretty much the kid and his parents argument and is the Youngstown case argument. Congress is, after all, supposed to make the laws and the President follow those laws. Now, there can be unconstituional laws that a President would not have to follow or enforce. However, there is no constitutional question raised by the mere fact that the President is included in the overall group of those bound by the law. IOW - the "rules are for others and not for me" approach is not a constitutionally based argument. Laws are for everyone, including the President, and what would be unconstitutional would be to have a law or series of laws that apply "only" to the "little people" and not to the President.
2. AUMF as an "out". It can't be. Period. Even if you were to completely accept that it is intended (and you know this is a laughable argument) to provide a statute to override FISA and provide for warrantless wiretaps of American Citizens on American Soil (which is what has been admitted to be included in "the program" but only bc they are "getting calls from or making calls to al-Qaeda - or so someone says but they won't let that be investigated), the AUMF won't work. Period.
Here's why. Under the Constitution, there is a specific provision that allows for the suspension of Habeas. Now, habeas is not mentioned in the Bill of RIghts bc it is ingrained in our psyche and everyone was completely certain it was guranteed via the 9th and 10th. HOwever, as recognized as Habeas was, it did get a Constitutional mention.
THat mention dealt with the fact that now and then there will be circumstances where Habeas needs to be suspended, temporarily, for certain security type reasons. Hamdi - relied upon by Gonzales - is a Habeas case. IMO (and one that, oddly enough, Justice Scalia shares with me) Hamdi has some crappy reasoning in some portions and it really is a conglomeration of pluralities on different points more than a decision on any point.
That aside, however, there is a Constitutional basis for something - a statute for example - to result in a temporary suspension of Habeas. However, there is NO CONSTITUTIONAL BASIS for the suspension of the Bill of Rights. As a matter of fact, the case law is very specific and says that as long as you are dealing with an American citizen on AMerican soil in an area where civil courts are open and operating and have not been overrun --- the Bill of Rights can not be suspended by a President even in wartime and even pursuant to declared martial law. This is not Youngstown - it is Ex Parte Milligan and it is the situation of the policeman with the errant kid saying: Whatever you parent do or don't do to rein in your kid (Congress and FISA) the City has a law (Constitution) passed by the people here and he's breaking it and about to get in big trouble.
So even if you accept the AUMF nonsense (and really - it was such nonsense even in Hamdi that Scalia basically said he wouldn't leash a dog under the AUMF - so I'm not just talking lefty partisanship) for Hamdi and habeas, it can NOT have any application for the fourth amendment.
3. Name the laws broken.
Ok - under FISA, which does require warrants for wiretaps on US Citizens in the US, Title 50, Chapter 36, Section 1804; there is both a criminal (Section 1809) and civil (Section 1810) liability. Those are one set of laws.
Also, the Constituiton of the United States is the supreme law of the land and the President has "broke" or disregarded the Fourth Amendment protection for Citizens.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
A violation of the Constitution, under color of law such as an illegal Executive Order, is a violation of 18 USC Section 242
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, ... shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
4. Legal opinions: Check out the pretty exhaustive ABA task force findings (links in this letter):
http://www.abanet.org/media/releases/news021006.html
Yoo's underlying authorization opinion didn't address Youngstown; later he tried to say that Youngstown might not be on point bc now "everywhere" is a battlefield (nonsense again - bc that was certainly also the case in the bad old days of the Anarchists and we have had US militia forces involved in terrorism here since at least Oklahoma City and we were within missile range of Russian Nukes forever) and when he did so he specifically failed to deal with Milligan - which said that Bill of RIghts still reins supreme, even in war, unless you have the kind of chaos situation where civil courts have been vanquished and are no longer operating.
I do have a feeling you didn't *really* want this, but rather a trolling fight.
Still, fwiw.
tomaig: No one serious, including no one here, has denied that the president is vested with some Article II, inherent authority. Inherent does not = exclusive or plenary.
ReplyDeletePlease read the inherent authority entries found at this site's Compendium of NSA Arguments.
Should he be in legal jeopardy for staying?
ReplyDeleteThe question of whether the visitor is in "legal jeopardy for staying" is meaningless; the issue isn't whether the police can get in trouble for entering a house, but whether they have the right to enter over an occupant's express objection and then use evidence they find there against the objecting occupant in court. Can you address the actual question?
The question of whether the visitor is in "legal jeopardy for staying" is meaningless;
ReplyDeleteNo, it is not. The visitor is not in jeopardy because he, in fact, is not trespassing. The reason he is not, is that no matter how much Julie insists that he leave, Amanda has invited him to stay. Only if both Julie and Amanda demanded that he leave, and he failed to do so, would he then be trespassing.
the issue isn't whether the police can get in trouble for entering a house, but whether they have the right to enter over an occupant's express objection and then use evidence they find there against the objecting occupant in court. Can you address the actual question?
Certainly. Co-tenants have joint rights over their common areas. They cannot unilaterally control them. If Amanda thinks it would be terrific to have the NYPD search her common living areas, and Julie hates the idea, I don't think it is a manifest outrage to believe the police have thereby contained sufficient consent -- from Amanda -- for the search. For the same reason that Julie has no right to have Jim arrested for trespass, to wit: she does not excercise exclusive authority over the common living area.
Too many people lack the inner guidance to naturally abhor torture.
ReplyDeleteWhen armagednoutahere wrote that sentence in his brilliant post in today's comment section, which I will cut and paste and keep forever, he touched upon the core issue which I think blinds out all others.
Reasonable people can disagree about a universe of ideas. But in the end, there are some people who will always arrive at the conclusions which are consistent with the type of inner guidance which to me reflects a noble morality.
In the never-ending battle between the individual and the collective, of which Governments are the most powerful type of collective, these people will, out of conscience and morality, always side with the individual when he is right.
Hypatia, I am sorry I praised you to the extent I did on prior threads.
I continue to think you are a brilliant thinker with an analytical mind, a flair for writing, and an enjoyable sense of humor.
But you have no soul, at least in my book.
The fact that you would cite Orin Kerr, a person who never comes up with any "reasonable" argument if so doing would interfere with his careerist agenda, is totally expected and predictable.
Maybe there are a few people in the Federalist Society who are moral according to my definition of same. Janice Rogers Brown is certainly one of those.
But in the end, it's very hard to pry the fascist out of the Federalist Society person who has been brainwashed (yes brainwashed, because nobody as bright as you would arrive at the conclusions you sometimes do if that person hadn't been brainwashed) into accepting the notion that Bork is any kind of person to admire or someone who should be trusted to be listened to in terms of what type of Justice should sit on the SC.
He's so stupid, in fact, that he doesn't even realize that Janice Rogers Brown, whose nomination he would have supported, is the first person who would dissent in these cases the Opus Dei faction most cares about.
I really think you would be more comfortable going to confirmthem.com or to the VC or to Orin Kerr's blog, so you can exchange ideas with those who most mirror your own soul, like acroso.
I speak for myself. I am sure Glenn and most if not all of the other posters here continue to think highly of you and value your input.
But as for me, you outrage me, yup, you do, and that's why I am speaking outlike this.
I now see, and I admit sometimes it takes me a while, and sometimes I am wrong at first, but I always get to the truth eventually, I now see you are not only one of those I consider an "enemy" but you are a particularly dangerous one, because you are smart enough to see the truth and to articulate your views eloquently, but you are
also exactly the type of person about whom armegednoutahere writes, a person with no inherent guidance when it comes to the most important issues.
When the count is done, you will always side with the Goliaths who want to obliterate the individual. I say when the count is down, because sometimes, on limited issues like the NSA spying matter, you see things extremely clearly.
You sicken me. You "coulda been a contenda" but you turned out to be a monster.
Your limited "outrage" is, to me precisely what I think is most wrong with this world. You are outraged when it suits your purposes. Apparently being outraged when MY rights are stripped away does not suit your purposes.
Until I take my last breath on this earth, I will be passionately, loudly, vehemently, and totally outraged by each and every instance of injustice which goes on in this world, and each and every new assault on the Freedom of the Individual.
I am so glad that Glenn Greenwald sees the real issue in yesterday's SC decision and in the language of the dissents.
But then, I actually knew he would :) Some things, fortunately, are predictable.
Hypatia, I am not buying any tickets for the "unfolding" of the universe that you are selling.
Tomorrow I will address myself to a different issue. How would a Patriot Act?
He would act like Patrick Meighnan. That's what I will write about.
Hypatia, I don't think so. Co-tenants each have a right to possess the whole property. In fact, Amanda could lease her interest in the property to Jim and Julie couldn't do a thing about it.
ReplyDeleteUnless Jim and Julie had entered into a binding legal argreement that neither can lease to someone else without the other's prior consent.
I have such an agreement. It's between me and the United States of America. It's called the Fourth Amendment.
EWO about, moi:You sicken me. You "coulda been a contenda" but you turned out to be a monster.
ReplyDeleteYou like Taylor Caldwell novels, don't you?
Hyapatia: I see two main flaws in your argument based on roommates letting a private citizen into their apartment:
ReplyDelete(1) When it comes to questions of governmental intrustion in private homes without probable cause, I'm inclined to err on the side of privacy. I'm surprised you choose to go the other way.
(2) Legally, a great deal of 4th Amendment law (and law school Socratic discourse, as some of us recall vividly!) centers on the extent of a citizen's "expectation of privacy": more in a car's trunk than in the passenger compartment, more in a closed room than in a glass phone booth, etc. The highest expectation of privacy is in one's home: if you're not private there, where are you private?
Roberts' position decreases the degree of sanctity and privacy given to a person's home, merely because that person shares part of that home with another person. You could argue that when you have a roommate your expectation of privacy goes down -- but it doesn't go down with regard to the government; vis a vis the government, do you really think that people with families or roommates have less of a privacy right, and less right to consider their home sacred, than single people do?
Anyway, we disagree. I'm glad to let you have the last word.
Roberts' position decreases the degree of sanctity and privacy given to a person's home, merely because that person shares part of that home with another person.
ReplyDeleteThersites, the SCOTUS has already effected that decreasing. If you are sleeping or at work, and not present to object, your spouse/roommate/co-tenant can consent to the search -- your "sanctity and privacy given to your home" mean squat. That is well-settled law. All that yesterday's ruling means is that if you happen by luck to be home and awake, your objection prevails. Souter yammered on about social conventions dictating this result, and Glenn thinks it would be "unseemly" to rule otherwise. But as a reason to go to the mat screaming that Roberts has opened up fascist territory, well, such overwrought ravings are just that.
Cops not being stupid (or no less so than others), they will now wait until the target isn't home. But they can still search without that target's permission or a warrant, as long as another member of the household consents.
Mona Says:
ReplyDeleteRemfin says: "I liked the part where Roberts brought up 'what about spousal abuse' and the majority basically says 'Roberts, you idiot, they would have probable cause anyway and wouldn’t be asking (or wouldn’t need it even if they were polite enough to ask and were declined) for permission."
The article I read —I believe the one John linked to—indicates that Roberts was appealling to Breyer and hoping with Breyer to form a majority; Breyer was the “idiot” who during oral argument in the case expressed concern about domestic abuse situations.
Look, I’m not the biggest John Roberts fan—I like Alito much better on states rights ands Commerce Clause matters. Roberts would have probably joined hypocrite Scalia in Raich. But Roberts’ dissent in this 4th Am case is just that big of a deal.
Hypatia, you are Mona? How quaint. Loving Alito because of commerce clause issues while ignoring the fact that he wants to help turn this country into a tinhorn dictatorship.
Seems that John Cole is a much smarter "libertarian/Republican" than you are.
Btw, what's your position on abortion rights, hypatia/mona?
Mona Says:
ReplyDeleteRemfin says: "I liked the part where Roberts brought up 'what about spousal abuse' and the majority basically says 'Roberts, you idiot, they would have probable cause anyway and wouldn’t be asking (or wouldn’t need it even if they were polite enough to ask and were declined) for permission."
The article I read —I believe the one John linked to—indicates that Roberts was appealling to Breyer and hoping with Breyer to form a majority; Breyer was the “idiot” who during oral argument in the case expressed concern about domestic abuse situations.
Look, I’m not the biggest John Roberts fan—I like Alito much better on states rights ands Commerce Clause matters. Roberts would have probably joined hypocrite Scalia in Raich. But Roberts’ dissent in this 4th Am case is just that big of a deal.
Hypatia, you are Mona? How quaint. Loving Alito because of commerce clause issues while ignoring the fact that he wants to help turn this country into a tinhorn dictatorship.
Seems that John Cole is a much smarter "libertarian/Republican" than you are.
Btw, what's your position on abortion rights, hypatia/mona?
EWO: Yes, I'm Mona. All I will say about that is Glenn has always known it (as well as my surname), and I had my reasons. We had agreed to my pseudonym, but now that you have discovered it (and I think notherbob2 did as well), no sense in continuing.
ReplyDeleteBesides, I knew this was inevitable, since I link here from pro-Bush blogs all over, and my writing style and views are distinctive.
I appreciate the concerns of people over civil liberties and the abuse of authority, but ultimately I think you are missing the forest for the trees.
ReplyDeleteThe fact is that we have a once-in-a-lifetime opportunity here, but the liberals aren't exactly going to hand over the proof of their treason, and we can't find it if we are not allowed to look.
It doesn't take a genius to know that the liberals are working with the terorists - they both hate America & Freedom and "the enemy of my enemy is my friend".
We have a serious shot of cleaning this country of liberals - the commies, feminists, tree huggers, and assorted unChristians - all the riffraff keeping us from a being a morally healthy country. As long as we have this fifth column trying to undermine Democracy from within, there will always be a threat to our freedoms. True freedom in the long run means a temporary sacrifice now and true Americans, who aren't Cowards, will march to the tune of Our Dear Leader George W. Bush on this one.
P.S. - When A.G. A.G. said "the terrorists are listening" he was NOT refering to Al Queda - he was referring to the terrorists at places like the ACLU and Planned Parenthood who, until the NYT broke their story, really DIDN'T know they were being bugged. All those "smart" people who snickered at him when he said this should now know they weren't so "smart" afterall.
The problem with Robert's reasoning is that he conflates social interaction between two people with government policing interaction. They are not the same. They never will be, they can not be, because the policing interaction is one of power and not equality.
ReplyDeleteIt is the same type of arguing as with the NSA spying when one uses the question of "don't you want them to spy on the bad guy?" Or the "what if you could save the world by getting that one person to speak via torture?"
A is A, B is B and together they don't get you to C, they give you AB which means nothing (other than as used in slang or an abbreviation).
Robert's formulation of his decent is the very model of formulation that is being use by all those of the Bush et al group (those in congress and media too) in order to reconstruct this nation.
It is deceitful in the fullest meaning of the word.
nuf, you are correct. I was typing faster than I was thinking (I know, I know, as usual....)
ReplyDeleteIra Levin's book is "This Perfect Day." Its theme is similar to that of "Anthem."
jao, I will go to Lyle's link, and thanks for providing it. I don't agree with what you wrote. And if I were to keep an "open mind" on certain issues like torture and fundamental individual rights, I would no longer be me.
I knew at the back of my mind that there was something almost ominous in the way John Roberts kept talking about the Rule of Law.
I don't worship at that God.
I would have rather he talked more about what basic individual rights he thinks are protected by the Constitution.
Rule by laws written by a tyrannical majority is no better than living in a dictatorship.
That's why we have the Constitution, to protect us from the mob, whatever they call themselves these days.
I do not read Orin Kerr, a person who wouldn't take a normative position if a gun were held to his head for fear of compromising his "paper trail."
I leave him, and Alito, to you and hypatia.
At least 3 of John Cole's commenters have called him a traitor.
ReplyDeleteI never knew that dissenting with a political party made one a traitor.
I think they use a different dictionary or a different way of thinking than I do.
You like Taylor Caldwell novels, don't you?
ReplyDeleteSorry. Call me illiterate, but I never heard of him. I do like Elia Kazan, and it is from On the Waterfront that I got that quote.
Nuf said: Point well taken. Sorry. I'll try to be good from now on.
ReplyDeleteI do admit that whenever I think about those who are trying to "reconstruct this nation", as divorced said, into a fascist dictatorship, my blood starts to boil.
But I'll suck on an ice cube and try to contain myself. Thanks for the good advice.
By the way, although I rarely focus on religious organizations, the statement that was issued by this group upon the release of the hostages really moved me:
ReplyDeleteStatement By Christian Peacemaker Teams
“Our hearts are filled with joy today as we heard that Harmeet Singh Sooden, Jim Loney and Norman Kember have been safely released in Baghdad. Christian Peacemaker Teams rejoices with their families and friends at the expectation of their return to their loved ones and community.....
"We believe that the illegal occupation of Iraq by Multinational Forces is the root cause of the insecurity which led to this kidnapping and so much pain and suffering in Iraq. The occupation must end.....
“Throughout these difficult months, we have been heartened by messages of concern for our four colleagues from all over the world. We have been especially moved by the gracious outpouring of support from Muslim brothers and sisters in the Middle East, Europe, and North America.
"That support continues to come to us day after day....
“During these past months, we have tasted of the pain that has been the daily bread of hundreds of thousands of Iraqis. Why have our loved ones been taken? Where are they being held? Under what conditions? How are they? Will they be released? When?
In its own simple and compassionate way, it's a powerfully stirring argument for the Fourth Amendment, and why every civilized society must have a Constitution which protects the rights of its citizens.
I apologize to you, hypatia.
ReplyDeleteI was very upset with the SC dissent, which I fear augers a very bad trend, and I took it out on you.
That was terrible of me and I truly am sorry.
There is no particular reason to view the constitutional debate over the National Surveillance State as strongly partisan. For better and for worse, there may be no meaningful division between the Democratic and Republican parties with regard to the larger imperatives for and the broad outlines of the National Surveillance State, and indeed, the constitutional problems that these institutions present may cross cut existing party alliances. The difference between the two major parties will consist we think, in how new forms of governance are implemented, what kinds of accountability and transparency mechanisms are built into the new institutional framework, and how the balance between efficacy and civil liberties is struck. Even if some form of the National Surveillance State is in our future, a great deal turns on the details of what kind of state it becomes. And that is why it will matter a great deal who holds office and who is appointed to the federal courts in the next decade.
ReplyDeleteThat's Jack Balkin talking, in a post that concludes that the National Surveillance State is here, is inevitable, and now we must just fine tune the details of it.
What's this? That's what it's come to? There's no possibility of escape? We who want to turn things back to Constitutional America are purists and dreamers who have failed to recognize that technology and wars have necessarily ushered in a National Surveillance State in which the judciary will go along with the transfer of almost all power from the Congress to the Executive?
What's this? Glenn?
Glenn:
ReplyDeleteHelp me out here. Is the Dewine proposal constitutional? If the Constutution prohibits warrantless searches, what gives Congress the right to allow the President to conduct them? Wouldn't a Constitutional Amendment be necessary to revoke the prohibition on warrantless searches?
Can't someone bring suit immediately after passage of the Dewine bill to get it declared unconstituional? Who would have standing to bring that suit?
Good interview with Chalmers Johnson, wherein he states: I don't see the obvious way out of our problems. The political system has failed. You could elect the opposition party, but it can't bring the CIA under control; it can't bring the military-industrial complex under control; it can't reinvigorate the Congress. It would be just another holding operation as conditions got worse. [my emphasis]
ReplyDeleteJohnson thinks that the reason the Dems do not do anything in favor of disciplining the President is because they implicitly believe in what he's doing. The Dem insiders are simply trying to devise ways to jimmy power away from the Reps just enough that they can take over management of this war. That's why the Reps continue to ask the Dems for a plan: they know that any plan looks amazingly like the Rep plan--just with a different management philosophy and head CEO.
eyes wide: Is this type of state a conscious construct, ie are they in collusion, or is it a matter of the logic of the neocon world-view?
ReplyDeleteJust a quick recap: CW in the Beltway holds that we can't censure Bush's wiretapping until the investigation is completed, but we don't think he did anything illegal, so there's no point in conducting an investigation.
ReplyDeletePerhaps we need to ask a different question. Considering how poorly the Bush administration handled (choose 1: Katrina, capturing Osama bin Laden, Medicare prescription drug benefit, the budget ....), how can we be assured the Bush's incompetent wiretapping won't allow terrorists to go free? How do we know they're doing a good job of wiretapping the terrorists?
We don't want Bush to stop eavesdropping on terrorists, we just want to do the best possible wiretapping so that Al Qaeda gets caught and put away. I think the American public is ready for the competence card.
I wonder if something's being missed here...In 1998's Clinton v. New York, the SC took a pretty strict and straightforward view of the Presentment Clause. This is the clause that orders Congress to present bills to the executive, and for the executive to sign them if he approves, returning them to Congress if he does not. In that case, the SC ruled that the line-item veto was a no-no, and that if the president didn't wish to enact some part of a law, he had to return it to Congress (and, conversely, if he signed a law, then the entire law was in effect.)
ReplyDeleteThat's why these signing statements are suspect. They're not a line-item veto, but wouldn't one suspect that the same court that ruled against the line-item veto in Clinton v. New York would also rule against signing statements?
I guess the idea might be that in Clinton v. New York the SC ruled against line-item vetoes because they appeared to be unauthorized cancellations of part of a law. The president has no such authority--unless, that is, Congress explicitly authorizes him to. So, I suppose the signing statements could be an attempt to make it clear that the president is not enacting certain portions of the law at all--they can't be canceled, because he's only signing certain portions of the law to begin with. I'm rather skeptical this would hold up in court, but I suppose that's the reasoning.
But more importantly, now I think we see why the AUMF argument is so important. The administration believes that FISA is unconstitutional. But there's a problem: a president signed it into law. It would seem that that leaves the executive bound to carry it out until it's ruled unconstitutional by the SC. The only way out--and Clinton v. New York seems to be aware of this--is if Congress itself authorizes the executive to cancel some or all of a law. So, it turns out that the only claim the administration can make is that the AUMF was such an authorization. Like others, I'm skeptical that the SC, if it ever rules on this, would agree, but I guess we'll have to wait and see.
If the AUMF argument fails, then I guess they would have the signing statements to fall back on--but as I said, these are pretty dubious to begin with, and unfortunately for the administration President Carter seems to have issued no such statement when he signed FISA--or rather, he *did* issue a signing statement, but it merely emphasized that the law would indeed require "a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive’s authority to gather foreign intelligence by electronic surveillance in the United States." Gulp.
So the administration's case really stands and falls on the AUMF.
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ReplyDeleteAs you've noted the signing statements carry absolutley no weight legally unless the courts decide to us ethem for guidance. There is no place for them in the law making apparatus that the Constitution creates.
Quite simply it is just another pretense by the Administration to give themselves the aura of legality in their behavior. For an increasingly small number of the population this still seems to work.
What the hell is wrong with the Democrats? When censure first came up, they said that they would have to wait for the results of the investigation of the NSA wiretapping program(an investigation that was no longer taking place)to make a judgement about the president.
ReplyDeleteToday I watched Sen. Carl Levin talk with Chris Wallace on Fox News Sunday. Levin said that it is wrong for people to say that Bush should be censured before the Senate has concluded he should be censured. What kind of F'd up logic is that? They wouldn't even be debating censure if Feingold didn't believe Bush should be censured.
What is so hard to understand, or make a judgement about?
There is no question that Bush broke the FISA law.
There is no question that he continues to do so, and claims that he has the inherent authority to break other laws.
Either Sen. Levin is a moron and doesn't understand the basic issue here, or he is intentionally trying to confuse the public.