A generally reasonable -- and potentially quite significant -- bill was jointly introduced last night by Senators Arlen Specter and Dianne Feinstein. The essence of the bill is to mandate that any and all eavesdropping on U.S. persons on U.S. soil fully comply with FISA (which is really another way of saying that the Bush administration is required to comply with the existing law called FISA), and it also bars the use of any federal funds for any eavesdropping programs which do not fully comply with FISA.
A detailed summary of the bill from Sen. Feinstein's office is here. These are three of the principal provisions:
• Re-state that FISA is the exclusive means by which our government can conduct electronic surveillance of U.S. persons on U.S. soil for foreign intelligence purposes;
• Prohibit the use of federal funds for any future domestic electronic surveillance that does not fully comply with the law; and
• Expressly state that there is no such thing as an “implied” repeal of FISA laws. In other words, no future bill can be interpreted as authorizing an exemption from FISA unless it expressly makes an exception.
Although there is a link to a .pdf of the actual bill on Feinstein's site, it doesn't work, so I have not yet been able to review the bill itself. But I should have a copy shortly (see UPDATE below).
The principal benefit of the bill is that it (a) eliminates the ludicrous claim that the AUMF implicitly authorized the administration to eavesdrop in violation of FISA and (b) expressly bars any future claim that Congress "implicitly" provided an exemption from FISA. The bill also liberalizes FISA's procedures to rectify the allegedly cumbersome warrant procedures -- including by expanding the warrantless window period from 72 hours to 7 days, streamlining the paperwork procedures, and easing the emergency eavesdropping requirements. These changes are designed to remove the excuses made by the administration as to why FISA is inadequate or excessively burdensome. The bill also requires that the full Senate Intelligence Committee be briefed on all eavesdropping programs.
A few observations about this bill:
(1) For better or worse, Feinstein and Specter carry significant influence with regard to these issues. Feinstein is viewed as a moderate, at least, on intelligence and defense issues, and Specter is a Republican. The fact that they have jointly sponsored a bill prohibiting eavesdropping outside of FISA and blocking the AUMF claim is going to be a serious obstacle in the effort to resolve the NSA lawbreaking scandal.
(2) The fact that Specter has now actually sponsored legislation to cut off funding for the warrantless eavesdropping program -- as he vowed a couple of weeks ago he would do -- is plainly significant.
(3) It goes without saying that the administration believes it has the right to violate this law. In terms of the president's theories of lawbreaking, this bill is no different than FISA -- given the premise that he has the power to eavesdrop on Americans however he wants, he will claim the power to break this law every bit as much as he claims he has the power to violate FISA. But if this bill were to pass, it would remove one of the two legal justifications the administration has -- namely, that the AUMF implicitly authorizes warrantless eavesdropping -- and force them to rely solely on their lawbreaking theories. It would also force them to find a way to fund any non-FISA eavesdropping activities notwithstanding a Congressional ban on such funding.
(4) The largest unresolved question is how this legislation would interact with the other proposed, still-pending FISA amendments sponsored by Sen. Specter, Sen. DeWine and others. This latest Feinstein/Specter bill merely requires that eavesdropping comply with FISA, whatever FISA might allow. It does not ban warrantless eavesdropping. Thus, if Sen. DeWine's legislation were enacted, and warrantless eavesdropping were expressly allowed by FISA, this Feinstein/Specter legislation would not actually block the warrantless eavesdropping program in any way.
It is impossible to get a real read on where Specter is at the moment with all of these issues. I don't think he knows. But this morning's Congressional Quarterly (subscription req'd) details just how far away the Congress is from agreeing to a legislative solution:
The new approach is at odds with Specter's earlier legislation that would require the administration to seek approval from the special court for the entire surveillance program, rather than case-by-case surveillance.
Specter, R-Pa., has been haggling with the other Republicans on the Judiciary Committee over changes to his earlier bill, which the committee plans to mark up Thursday.
The other Republicans, particularly Jon Kyl of Arizona, want Specter to strip out language requiring the administration to seek the FISA court's approval for the program. They also want to delete several provisions of the 1978 law, including language that mandated it to be the "exclusive means" to conduct surveillance for foreign intelligence purposes. They also want to make the deletions retroactive to when the 1978 law was enacted.
Specter has circulated several draft substitutes to his earlier bill along those lines, but it's unclear at best whether he will agree to the changes demanded by other Republicans to move his legislation out of committee.
The panel has two other NSA-related bills on its schedule. One measure (S 2455), by Mike DeWine, R-Ohio, would subject the NSA program to more congressional oversight and give the administration the option of seeking approval from the secret court for surveillance of particular targets. The other bill (S 2468), by Charles E. Schumer, D-N.Y., would allow people who believe they could be targets of NSA surveillance to go to federal court to stop it.
Meanwhile, Senate Intelligence Chairman Pat Roberts, R-Kan., is busy working on his own measure regarding the surveillance program. Roberts intends to claim his
committee's jurisdiction over any measure that Specter's committee produces. Roberts has said Majority Leader Bill Frist, R-Tenn., wants Roberts and Specter
to work out any differences over their bills themselves.
Ultimately, Specter and Feinstein agreed to this bill not knowing what the new FISA -- if there is one -- would ultimately permit. So, its real purpose seems to be to force a showdown with the administration over the president's obligations to obey the law, whatever the law might mandate. It does that by removing the administration's excuse that Congress allowed it to violate the law (with the AUMF), and by exercising the Congress' undisputed constitutional authority to cut off funding for any program that exists outside of FISA. It therefore forces the administration's hand by making it much, much more difficult for the administration to eavesdrop in violation of the law. The bill, at its core, is really an assertion of Congressional power to regulate eavesdropping on American citizens on U.S. soil, combined with a strategic effort to block the administration from ignoring the law in the future by removing most of its defenses for doing so, and by banning any funding of non-FISA eavesdropping.
To the extent that this bill brings us closer to the necessary (and, in my view, inevitable) showdown over the Bush administration's refusal to obey the law, I think it is a step -- perhaps a significant step -- in the right direction. And the bill clearly signals that we are still very far away from any sort of resolution of the NSA scandal, which, by itself, is cause for optimism. Despite the disappointing and baffling events of yesterday with regard to Gen. Hayden, I do think that the beaten down, humiliated Congress smells a little blood over at the White House, and this step, tentative and modest though it is, could signal an increased willingness on the part of the Congress finally to demand that it once again play some actual role in how our government functions.
UPDATE: Thanks to Rachel Perrone of the ACLU, who has e-mailed me a .pdf version of the actual bill. The summary on Sen. Feinstein's site is quite accurate and comprehensive, but the bill itself seems even stronger than the summary suggests. The very first provision emphasizes that FISA shall be the exclusive means for eavesdropping -- one of the provisions which Bush's most loyal Senate allies are most devoted to eliminating. It also requires fairly thorough briefing on all eavesdropping activities to the full Intelligence Committees of both the Senate and the House.
Additionally, the bill specifically contemplates a warrant procedure, i.e., that eavesdropping require the approval of the FISA court, so it would be very hard to reconcile this bill with, for instance, Sen. DeWine's bill allowing warrantless eavesdropping. This bill seems to signal that Sen. Specter is committed to prohibiting any eavesdropping without the approval of a FISA judge.
UPDATE II: Sen. Specter's statement regarding the bill is here. Characteristically, he includes a provision speculating that his own bill might be unconstitutional for daring to regulate the eavesdropping activities of the President. Sen. Specter is never going to change his behavior; it is too deeply engrained in his character. But the fact that this is a very positive development does not rely upon the strength of Sen. Specter's convictions, but upon the fact that there is serious resistance in the Congress to allowing the White House to force an easy resolution of this scandal which shields them from accountability for their past lawbreaking.
UPDATE III: An online .pdf of the Feinstein/Specter bill is here (h/t EJ).
This sounds to me like a GREAT idea! Thanks for giving it some light.
ReplyDeleteRe: Democrats are afraid to challenge the President due to their fear -- always due to their fear -- that they will be depicted as mean, obstructionist and weak on national security.
ReplyDeleteOne has to allow for the possibility that they (some) are doing it because of their fear of fear, and that they are not indeed in disagreement on the "policies" involved.
Off the top of my head, this sounds like a good idea. Did anybody else reading this immediately think of the Bolland Amendment?
ReplyDeleteMy recollection from John Dean's WORSE THAN WATERGATE, is that because the Constitution explicitly give the power of the purse strings to Congress, the president ignoring their rulings in these matters is a directly unconstitutional (and imminently impeachable) act.
ReplyDeleteKnowing Specter and Feinstein, I suspect this bill will not go through without being highly watered down. As such, there is good reason it constitutes threat, not promise.
ReplyDeleteSenator Specter's statement introducing the new bill is here.
ReplyDeleteThe Unitary Executive would just issue a signing statement exempting the Executive office from following the law.
ReplyDeleteRe: It would also force them to find a way to fund any non-FISA eavesdropping activities notwithstanding a Congressional ban on such funding.
ReplyDeleteWhat can congress do to prevent them from using "any" funds for it? There is a lot of fuzz in all budgets, and many of them are actually classified etc. I don't understand how the "funding" issue will be any hindrance to Bush & Co.
Isn't this how we got in this mess in the first place?
ReplyDeleteThere was a time in recent memory when FISA defined the outer (and reasonably debatable) limits of government snooping.
The Bush administration decided that FISA was a law that it needed to break, and it offered a series of ludicrous justifications once word got out on some of what it has been up to.
Now two craven pols, in a display of incestuous bipartisanship, offer what will one day be recognized as a Republican compromise: Start with a law. Break it, and steak out a position on the fascist fringe. Wait for the legislature to cede half the territory that you have claimed. Accept the compromise. Repeat.
FISA was evidently clear and adequate for anyone conscientious enough to respect it. It also allowed the government, abetted by notoriously pliant judges, to be very intrusive with minimal justification.
Absent the reckless lawbreaking by the administration, where is the compelling argument for liberalizing FISA?
I'll be interested to see if the announcement that the FBI wants to interview Congressional members as part of their ongoing search for the leakers in the wiretapping issue, will add a personal outrage element to this issue. After watching the Rep outrage over the Jefferson office searches, who knows, the Rep members might have a light bulb moment.
ReplyDeleteNobody is suggesting that this bill is some panacea that will solve all of the world's problems, or even the specific problem of the Bush administration's lawlessness. We're all aware of the fact that the administration continues to claim the power to break the law, and would claim that power with regard to this law. I specifically discussed that in my post.
ReplyDeleteIt is nonetheless helpful for these reasons:
(1) It takes away the Bush administration's legal defense that the AUMF granted it permission and continues to grant it permission to eavesdrop outside of FISA.
(2) It adds the very significant legal barrier to the administration's claimed right to eavesdrop outside of the law - namely, it bans funding for any such programs, a power which even the administration doesn't deny Congress has, because the Constitution expressly says that Congress has that power.
(3) It further splits the Republicans in the Senate, signals that an important Committee Chairman (Specter) is far, far away from agreeing to the plans of the pro-Bush Senators, and keeps this scandal alive for a lot longer.
These are all tangible benefits. Nobody suggests that this is perfect. Nobody is under the impression that this is going to put an end to the Bush administration's lawlessness. But it makes it more difficult for them to win the legal arguments, and it creates additional political difficulties. Therefore, it is a step forward.
As I've noted before in comments here, even John Yoo seems to admit that Congress can cut off funds, thus crippling a program:
ReplyDeleteSuppose Congress passed a law making it a crime for any soldier to use a nuclear weapon, even if ordered to do so by the president, because its use violates international human rights law. I think this would violate the president's Commander-in-Chief power, if a case arises in which the president in good-faith believes that he must use nuclear weapons to protect the security of the nation... Congress could always cut funds off for nuclear weapons, and it could order them destroyed....
Here's what I think Congress should do, though. Instead of (or in addition to) cutting off funding for spying, they should cut off funding for all sorts of things so long as the spying continues. Since Bush clearly isn't impressed with the fact that this eavesdropping makes him a felon, maybe he'll be concerned when it kills his faith-based initiatives, subsidies for the oil industry, and his own salary.
If we pick the targets carefully, I think this could be pretty spectacular.
hI do think this is a good idea, off the top of my head. Also off the top of my head? They will just shift some money out of the copious "black budget" in order to continue the dirty deeds. After all, it's so productive to know what your political enemies are doing and saying.
ReplyDeleteGlenn said: "These are all tangible benefits. Nobody suggests that this is perfect. Nobody is under the impression that this is going to put an end to the Bush administration's lawlessness. But it makes it more difficult for them to win the legal arguments, and it creates additional political difficulties. Therefore, it is a step forward."
ReplyDeleteThe tactical reasons are understandable, but wouldn't other measures make as much (or more) sense?
When a law is repeatedly broken, it may be appropriate to question whether it is interfering with some public benefit. If it is, it could make sense to liberalize it. If it is protecting the citizenry from harm, it would make sense to enforce it. If the perpetrator(s) insist that there are ambiguities that permit harmful behavior, it makes sense to make the law more stringent.
So what is happening here? Does FISA stand in the way of benefit to us, or does it protect us? Specter and Feinstein are skipping the debate.
it bans funding for any such programs, a power which even the administration doesn't deny Congress has
ReplyDeleteBut then again, the Bush administration has set records for spending money that doesn't actually exist so I suppose they'll find some convenient orifice, er I mean, secret defense appropriation to pull some from.
Glenn: I agree with your comment that this bill is a good thing, even if it isn't the best thing. Thanks for the great writing and I hope to pick up your book soon.
ReplyDeleteI find myself asking:
What about the recent stories of data mining by the NSA and the telcos? When are we going to see a bill on that, or, at the least, an investigation? It's fine if we're able to get the above bill passed with little watering down, but what about our personal communications info? I loved Hayden's convenient dodge of "I'd be happy to discuss that in a closed session..." knowing full well it won't happen...
"It's Déjà Vu all over again.
ReplyDeleteYogi Berra"
The Church Committee is the common term referring to the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, a U.S. Senate committee chaired by Senator Frank Church (D-ID) in 1975. A precursor to the U.S. Senate Select Committee on Intelligence, the committee investigated intelligence gathering for illegality by the CIA and FBI after certain activities had been revealed by the Watergate affair.
By the early years of the 1970s, the unpopularity of the Vietnam war and the unfolding Watergate scandal brought the era of minimal oversight to a screeching halt. The Congress was determined to rein in the Nixon administration and to ascertain the extent to which the nation's intelligence agencies had been involved in questionable, if not outright illegal, activities.
A series of troubling revelations started to appear in the press concerning intelligence activities. First came the revelations of Christopher Pyle in January 1970 of the U.S. Army's spying on the civilian population [1] and Sam Ervin's Senate investigations that resulted. The dam broke on 22 December 1974, when The New York Times published a lengthy article by Seymour Hersh detailing operations engaged in by the CIA over the years that had been dubbed the "family jewels." Covert action programs involving assassination attempts against foreign leaders and covert attempts to subvert foreign governments were reported for the first time. In addition, the article discussed efforts by intelligence agencies to collect information on the political activities of US citizens.
These revelations convinced many Senators and Representatives that the Congress itself had been too lax, trusting, and naive in carrying out its oversight responsibilities. (Many of the so-called family jewels had been briefed to some members on the existing oversight panels, but in the highly charged atmosphere of the Watergate period they tended to opt for selective amnesia when asked if they had known about these activities.)[2]
In 1975 and 1976, the Church Committee published fourteen reports on the formation of U.S. intelligence agencies, their operations, and the alleged abuses of law and of power that they had committed, together with recommendations for reform, some of which were put in place.
Among the matters investigated were attempts to assassinate foreign leaders, including Patrice Lumumba of the Congo, Rafael Trujillo of the Dominican Republic, the Diem brothers of Vietnam, Gen. Rene Schneider of Chile and President John F. Kennedy's plan to use the mafia to kill Fidel Castro of Cuba.
Under recommendations and pressure by this committee, President Gerald Ford issued Executive Order 11905 (ultimately replaced in 1981 by President Reagan's Executive Order 12333) to ban US sanctioned assassinations of foreign leaders, reducing United States options in cases where diplomacy has failed.
Together, the Church Committee's reports have been said to constitute the most extensive review of intelligence activities ever made available to the public. Much of the contents were classified, but more than 50,000 pages have since been declassified under the 1992 JFK Assassination Records Collection Act.
Donald Rumsfield and the Church Committee
"Another major issue for Rumsfeld was the effort by members of the Church Committee in the Senate and the Pike Committee in the House to curtail the power of U.S. intelligence agencies: "They were very specific about their effort to destroy American intelligence [capabilities]," remembers Robert Ellsworth. "It was Senator Church who said our intelligence agencies were 'rogue elephants.' They were supposedly out there assassinating people and playing dirty tricks and so forth...Well, that just wasn't true." Rumsfeld and Ellsworth prevent the committees from dismantling the CIA and other intelligence organizations."[1]
I don't think we're going to see a showdown with the White House over the lawbreaking powers it seized. The Administration always backs away when it comes time for a real adjudication of the issue. And Congress will let them do that because it's easier on everyone to let things be. They all calculate that they have too much to lose.
ReplyDelete(2) It adds the very significant legal barrier to the administration's claimed right to eavesdrop outside of the law - namely, it bans funding for any such programs, a power which even the administration doesn't deny Congress has, because the Constitution expressly says that Congress has that power.
ReplyDeleteI smell Boland amendment; with experienced members of the Iran/Contra scandal firmly emplaced within the current administration, this probably doesn't intimidate them too much.
If they get caught, it's prez. pardons for everyone.
One of the things I thought of while reading this post was: didn't the prez issue a signing statement that gave him the authority to re-direct money to any program that he thought appropriate, even if congress said otherwise?
ReplyDeleteI don't actually see DiFi and Specter to actually develop a spine but this is a positive move on their part.
The huge mystery is the jellyfish like positions that they hold. She votes for Hayden, then sponsors this legislation. He promises to investigate and never does such a thing.
Frustrating and spineless. DiFi will NOT get my primary vote in two weeks.
Let me get this straight--sorry, IANAL. Apparently, there is no Congressional rule that requires that funds be spent in accordance with the law? Which is to say, when Congress passes a law, there is no presumption that funds will be spent in accordance with that law, unless Congress specifically directs it?
ReplyDeleteSo they are proposing to pass a new law (let's call it FISA 2) saying, "The only way to carry out surveillance is to do so in accordance with the law."
Soon we will find ourselves having to pass FISA 3 saying, "The only way to conduct surveillance is in accordance with the law that requires that surveillance is done in accordance with the law."
I'm too tired of this to even type FISA 4.
Perhaps by then both Specter and Feinstein will have retired.
I want to agree with Glenn's earlier comment that while this move won't solve the primary problem (the Administration's tendency to ignore or run roughshod over the law), it does have some potentially tangible benefits.
ReplyDeleteHowever, can we necessarily trust either Senator to actually follow through with this, never mind hope to actually see a vote on it?
Come to that, several commentators since then have pointed out the Administration might still have avenues by which it can continue to fund the program even if the law is passed and signed into law (it would be rather amusing to see the President sign his little pet project away, wouldn't it?).
Any one else?
Glenn:
ReplyDeleteThe principal benefit of the bill is that it (a) eliminates the ludicrous claim that the AUMF implicitly authorized the administration to eavesdrop in violation of FISA and (b) expressly bars any future claim that Congress "implicitly" provided an exemption from FISA.
Feinstein obviously does not believe that this legal defense is meritless or she would not have amended FISA to preclude implied waiver.
It goes without saying that the administration believes it has the right to violate this law. In terms of the president's theories of lawbreaking, this bill is no different than FISA -- given the premise that he has the power to eavesdrop on Americans however he wants, he will claim the power to break this law every bit as much as he claims he has the power to violate FISA. But if this bill were to pass, it would remove one of the two legal justifications the administration has -- namely, that the AUMF implicitly authorizes warrantless eavesdropping -- and force them to rely solely on their lawbreaking theories. It would also force them to find a way to fund any non-FISA eavesdropping activities notwithstanding a Congressional ban on such funding.
That claim is nonsense. How exactly will the President fund the NSA Program without Congress, a bake sale?
This is the only constitutional action by Congress to limit this program which has been offered to date.
Why did these two Senators vote for Hayden if they are so concerned about the wiretapping program? Clearly, they're not, or they would have had strong objections to the man who created it.
ReplyDeleteBart, you still ignore the necessary and proper clause of Article One Section Eight cited in the majority opinion of the Supreme Court in the Youngstown decision.
ReplyDeleteThirds, if we let GOP pass it, and take credit for "fixing" the wiretap problem, we (A) give them a leg up in the election, where they have little else going for them, and (B) put up roadblocks for further hearings
ReplyDeleteSorry, but I happen to think that its far more important, that Congress assert its authority then it is for Democrats to get credit. What's at stake here, the ability of the executive to hold himself above the law, is a critical issue no matter which party the executive belongs to. That's why its so hypocritical that the Republicans aren't the ones leading the charge. They after all are the ones who are supposed to be in favor of limitted government.
You are right that Bush, following his "unitary executive" approach, would just say that he can ignore the spending restrictions in this bill. But if he does then the problem becomes where does he get the money to fund the program? He'd have to transfer money from some other part of the budget.
ReplyDeleteThat's part of what got the Reagan administration in trouble during Iran-Contra.
georgelo said...
ReplyDeleteBart, you still ignore the necessary and proper clause of Article One Section Eight cited in the majority opinion of the Supreme Court in the Youngstown decision.
How so?
Before you start, this provision does not mean that Congress may enact any statute which it believes to be necessary and proper. Rather, this provision merely allows Congress to enact statutes which are necessary and proper to enable and enforce other powers granted by the Constitution.
The Congress has no power to enact a statute transferring the President's Article II power to the FISA court.
However, Congress would appear to have the power to deny funding to agencies carrying out the President's Article II powers. I am reviewing the proposed bill to see what it actually says.
If the Specter/Feingold legislation were to pass, is it possible that the Bush admin would try to stack the FISA court with judges who follow their take on this issue?
ReplyDeleteConsider the fact that it's the Supreme Court Chief Justice--Bush's man Roberts--that apppoints these judges. (via Defense Tech) According to Secrecy News:
District Judge Roger Vinson of the Northern District of Florida this month became the newest member of the Foreign Intelligence Surveillance Act (FISA) Court.
Judge Vinson was named by the Chief Justice of the United States to a seven year term on the FISA Court, effective May 4. He replaces Judge Michael J. Davis, whose term on the Court expired this month.
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ReplyDeleteRead the bold part again bart. It
ReplyDeleterefers to "The Government of The United States" not just "Congress"
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof
But then again, its not your first misrepresentation. Just your most recent.
From Bart at 1:12PM:
ReplyDelete"That claim is nonsense. How exactly will the President fund the NSA Program without Congress, a bake sale?"
The same way any number of covert operations are funded: block appropriations under the rubric of 'national security' whose specifics are tightly compartmentalized.
You want us to believe you're really this naive, Bart?
yankee: {S]everal commentators since then have pointed out the Administration might still have avenues by which it can continue to fund the program even if the law is passed and signed into law...
ReplyDeleteIndeed. Bureaucrats are adept at hiding programs within other programs. If my recollection is correct, didn't Reagan and Ollie North bury the Iran-Contra stuff in black ops budgets?
Don't worry about it. Bush just gave a free pass to corps from having to report anything if it is deemed secret for the state. So, privatize surveillance (ChoicePoint) and bingo, FISA is out.
ReplyDeleteI agree with professor foland. Bush et al are playing like the children they are: catch me if you can. The law is not the problem. The people involved are the problem. Those who are not following the law ( and we have laws for that) and those who are not enforcing the law (guess they are not following the law either). You can't stop this game with new rules. Have you ever tried to stop a child with just rules?
Sen. Specter is never going to change his behavior; it is too deeply engrained in his character.
ReplyDeleteThat's a diplomatic statement -- guess need to try and appreciate that.
IMHO, the man that created the "magic bullet" theory to cover up the greatest crime of the previos century is not going to be part of solving the great crimes in this century.
I am not sure its about "behavior" as much as it is about "integrity." Not only does sphincter have have very little of that, he is actually one of the lying liars that have enabled the agenda behind our chimperor/great decider.
When I see his hands on this, I cannot be optimistic that we will see anything positive but I do trust Feinstein so I will try to be open-minded.
What's going to stop the Bushinistas from claiming this as just another law they can ignore?
ReplyDeleteBINGO!!!!!
And Spincter will shoot another "magic bullet" out his butt by grandstanding that he is providing "responsible oversight."
He will make a lot of noise until a day when there are enough distractions that he can quietly cave in to the administration's "signing statement" that the law does not apply to the administration of chimpy mcflightsuit.
We will see absolutely no backbone then, but spincter can keep this out of the news cycle until there is appropriate "cover" for his flip-flop.
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ReplyDeleteOOOOPS!!! I don't trust FEINSTEIN, keep getting confused with FEINGOLD.
ReplyDeleteWe are going to get screwed on this one, gang.
georgelo said... Bart, you still ignore the necessary and proper clause of Article One Section Eight cited in the majority opinion of the Supreme Court in the Youngstown decision.
ReplyDeleteBart: How so?
Before you start, this provision does not mean that Congress may enact any statute which it believes to be necessary and proper. Rather, this provision merely allows Congress to enact statutes which are necessary and proper to enable and enforce other powers granted by the Constitution.
PhD9 said...
Read the bold part again bart. It refers to "The Government of The United States" not just "Congress"
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof
But then again, its not your first misrepresentation. Just your most recent.
Try reading for content before you accuse others of misrepresentation. Exactly where in my post above did I limit the necessary and proper clause to "just Congress."
This is not your first misrepresentation of one of my posts, just the most recent.
It is self evident that Congress would have to pass enabling legislation creating departments like the NSA before the President could exercise his Article II powers to gather intelligence.
Former NSA analyst, Ira Winkler, writes that NSA domestic spying hurts US national security:
ReplyDeleteThe government claims that it got the information legally since it was given the data or bought it from the telecom companies. Perhaps, but USA Today reports that at least one company (Qwest) received threats from the U.S. government for not cooperating. That’s extortion -- another crime.
Congress is not exercising any backbone at all, and neither are its constituents -- a.k.a., you. Every time we receive new information about the NSA domestic spying program, it gets exponentially worse, and it's clear that we still have no clue as to the full extent of the program. More importantly, the courts and Congress do not appear to have a clue as to the full extent of the program, and those bodies are constitutionally required to exercise checks and balances over the NSA. The actions taken by the executive branch after 9/11 aren't protecting our freedom. They are usurping it.
So, besides knowing that it's illegal, that is provides useless information, that it takes law enforcement agents away from investigating and preventing crimes actually being committed, and that it erodes civil liberties, we have no clue how bad it really is. The arguments I hear for it are that 1) I have nothing to worry about so I don’t care if they investigate me, 2) we need to do everything we can to protect ourselves, or 3) the NSA isn't listening to the content of the calls, so there's no harm.
Addressing the first point, people who did nothing wrong have been investigated and jailed in this country and others over the years. Additionally, I believe that Saddam Hussein would cheerfully agree with the tired allegation that if you did nothing wrong, you shouldn’t mind the government looking at your calls. I think Lenin, Stalin, Hitler and the Chinese government would also agree with that line of thought. Is this the company we consent to keep in the name of safety?
To doing everything we can to protect ourselves, we have, again, pulled law enforcement agents away from real ongoing crimes to investigate poor and scattered "intelligence." This definition of "protection," again, leaves us watching for dragons while very real snakes multiply freely in our midst.
And so what if the NSA isn't listening to the calls themselves? An intelligence agency doesn’t need to hear your chatter to invade your privacy. By simply tying numbers together -- an intelligence discipline of traffic analysis -- I assure you I can put together a portrait of your life. I'll know your friends, your hobbies, where your children go to school, if you’re having an affair, whether you plan to take a trip and even when you're awake or asleep. Give me a list of whom you’re calling and I can tell most of the critical things I need to know about you.
I thought spending bills had to originate in the House.
ReplyDeleteDon't be silly, constitution is just a "damn piece of paper" and now we are ruled by a "great decider" that has crweated a "unified" exective.
Do you think he will issue a statement in 2008 that the "decider" has decided to decree himself chimperor for life?
yankeependragon said...
ReplyDeleteFrom Bart at 1:12PM:
"That claim is nonsense. How exactly will the President fund the NSA Program without Congress, a bake sale?"
The same way any number of covert operations are funded: block appropriations under the rubric of 'national security' whose specifics are tightly compartmentalized.
You want us to believe you're really this naive, Bart?
If this proposed bill does constitutionally deny finding for the NSA Program if it is not submitted to the FISA court, then it takes precedent as a specific funding provision over any other general provisions. This is a basic tenet of statutory construction.
Anyone have any idea what the framers' thoughts were regarding 'implied' powers?
ReplyDeleteI love how 'conservatives' love to go on about being strict constructionists and/or originalists, then completely ignore the fact that the framers were crystal clear that only those power specifically enumerated were granted. There is no possible way that one can read Article II and claim any enumerated power for the Executive to violate the 4th Amendment's unreasonable search clause. Besides, the 4th Amendment AMENDED the Constitution anyway, which means that it takes precedent.
I sure as hell don't count on Feinstein for anything, any more than Specter. She has some solicitude for her own perogatives and dignity, but not as far as I can tell for any restraints on executive power. I say this having experienced her as mayor.
ReplyDeleteYes -- it is a Boland Amendment -- useful as something to fight for along the way, not any real remedy for power gone rogue.
Apart from his vast share of responsibility for the conduct of our foreign relations, the embracing function of the President is that "he shall take Care that the Laws be faithfully executed . . . ." Art. II, 3. The nature of that authority has for me been comprehensively indicated by Mr. Justice Holmes. "The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power."
ReplyDeleteLink
Divorced one like Bush said...
ReplyDeleteI agree with professor foland. Bush et al are playing like the children they are: catch me if you can. The law is not the problem. The people involved are the problem. Those who are not following the law ( and we have laws for that) and those who are not enforcing the law (guess they are not following the law either). You can't stop this game with new rules. Have you ever tried to stop a child with just rules?
Good comment, good analogy. If a kid is a cheater, it won't do any good to make a new rule that says "no cheating". Any kid that is willing to cheat to win will break that rule too.
If I steal a car I'll go to jail. Congress won't pass a bill making it illegal to break the law that makes it illegal to steal a car.
THROW THE BUMS OUT!
Glen,
ReplyDeleteYou should title this post. "A Snowball's Chance In Hell" which is what this bill has a chance of ever getting out of committee or to see a floor vote that passes it to a Presidential Veto.
You and the lefties here will destroy how many trees in the rain forest with writings about this that are fruitless and meaningless to the majority of the American people.
Yawn....
Says the "Dog"
I'm glad to see that my suspicion that Bush is too stupid to take over the world is panning out. Now that the administration is pissing off Congress with their intimidation tactics (have the FBI raid offices and interview top House leaders to see if they leaked the NSA wiretapping), there's actually a chance (probably a small one) this bill might go through.
ReplyDeleteDavidByron said...
ReplyDelete[You and the lefties here will destroy how many trees in the rain forest with writings about this]
I don't have the heart to tell him.
Anyone...?
3:49 PM
[sigh] Ok, I'll bite...
Dog: How many trees does it take to write an email?
+1 to David Byron. If it's already illegal, which seems clear to you and me both, then passing a law that says "that thing you were doing is illegal" implies it was previously legal. We have laws on the books right now that any reasonable person can see forbid what the Bush administration is doing. Passing this bill implies that it was ok pre-bill, which it is not. It gives them a defense for the crimes they have committed, which does not serve the nation's interest.
ReplyDeleteA tangent from the part of the bill that says the 15 days of warrantless surveillance under FISA after a declaration of war would also become applicable to an authorization for the use of military force... What meaning does a declaration of war have that distinguishes it from an AUMF? As far as I know, the United States hasn't declared war on anyone since 1941, but we've been seriously involved in at least 4 wars (depending on how you count) since the conclusion of WWII.
These are all tangible benefits.
ReplyDeleteGood points, glenn, but only if spincter doesn't actually undermine the whole thing at some point in the process.
Given his "performance" on other issues, going all the way back to JFK, not likely he is going to be a savior here.
But we will see, you present a compelling case.
When a law is repeatedly broken, it may be appropriate to question whether it is interfering with some public benefit.
ReplyDeleteYou mean like when the "great decider" decides that the US Constitution is just a "damn piece of paper" and refuses to follow the rules of laws?
Are you saying that if the "great decider" decides its a "public benefit", then we are no longer a constitutional democracy with three branches of Government?
uuuuuuuuuuuuuuuummmmmmmmmmmmmmmmmmm
yeah... sure, whatever...
But then again, the Bush administration has set records for spending money that doesn't actually exist...
ReplyDeleteJust a trick he learned from his best-buddy and largest campaign contributor, KEN LAY
You and the lefties here will destroy how many trees in the rain forest with writings about this
ReplyDeleteThis is proof that our trolls just copy and paste talking points from other sources...
Guess this one was meant for memos and letters, but not like they actually read the tripe they copy and paste anyhow.
ALL OF OUR TROLLS WORK THIS WAY, PLEASE DON'T ENCOURAGE THEM BY TRYING TO REFUTE THE TALKING POINTS THEY JUST DUMP INTO THE THREADS!
The power of the purse may be the only way to fight the administration. Between Signing Statements, secrecy, and willful ignorance, Congress (even if it wanted to) has little recourse.
ReplyDeleteBravo to both of you. I think a couple months ago Glenn had the same attitude. Not sure how all the dodging in congress made Glenn willing to play along, (I assume he'd say he's just being pragmatic,) but playing along with congress seems to undercut the strength of the original contention that Bush is breaking the law.
ReplyDeleteThere is nothing in that bill which suggests, implies, or denotes that anything the Bush administration did previously was legal, nor does it remotely imply that any defenses they've raised were valid. It's illogical to suggest otherwise.
The Bush administration has two excuses for violating FISA - "A" and "B". A is the statutory defense - "the AUMF implied that we could." B is the Constitutional claim - "the Constitution gives up the power to do so."
This bill removes "A" from the arsenal, therefore making it much harder for the administration to defend its conduct before a court. It also would make it virtually impossible for the administration to claim, even under "B", that is has the ongoing right to violate the law, since it cuts off funding for any future lawbeaking.
I'm against any law that would simply re-state that FISA has to be complied with. This bill does much more than that. It takes away a major defense of the administration and makes it much more difficult for them to violate the law in the future. It forces their lawbreaking theory out into the open. And it makes it far less likely that this matter will be resolved any time soon in the Senate, thus ensuring that this scandal continues.
It'd be great if the Police would march into the White House tomorrow and arrest everyone as lawbreakers and bring them to teh Hague. I know that would satisfy a lot of people here. But that's a pipe dream. That isn't going to happen. So protesting everything short of that seems very self-indulgent to me.
The qusetion is - what steps can be taken to increase the likelihood that the administration will be held accountable for its lawbreaking? For the reasons that I described, this bill does that in several ways. If you think this bill doesn't do that, perhaps it would be constructive to suggest a course of action that would.
Screaming how the Chimpy is a criminal who will break the law no matter what - so everything is just hopeless - doesn't actually achieve anything, other than relieving one of the responsibility of trying to find ways to actually make something real happen.
I'm not convinced that cutting off Congressional funding will accomplish all that much:
ReplyDeletehttp://feeds.dailykos.com/dailykos/index?m=3931
"President George W. Bush has bestowed on his intelligence czar, John Negroponte, broad authority, in the name of national security, to excuse publicly traded companies from their usual accounting and securities-disclosure obligations. Notice of the development came in a brief entry in the Federal Register, dated May 5, 2006, that was opaque to the untrained eye.
Unbeknownst to almost all of Washington and the financial world, Bush and every other President since Jimmy Carter have had the authority to exempt companies working on certain top-secret defense projects from portions of the 1934 Securities Exchange Act. Administration officials told BusinessWeek that they believe this is the first time a President has ever delegated the authority to someone outside the Oval Office. It couldn't be immediately determined whether any company has received a waiver under this provision."
1 Anonymous to another:
ReplyDeleteWhen a law is repeatedly broken, it may be appropriate to question whether it is interfering with some public benefit.
You mean like when the "great decider" decides that the US Constitution is just a "damn piece of paper" and refuses to follow the rules of laws?
Are you saying that if the "great decider" decides its a "public benefit", then we are no longer a constitutional democracy with three branches of Government?
*****
To clarify: If the Decider refuses to follow the law, he can question whether it is interfering with some public benefit. This discussion should take place as part of his futile defense aganist conviction for breaking the law. If someone had the nerve to call him to account, we might hear him proposing that FISA prevents him from protecting the population. And the appropriate answer to that question is also well documented: Bullshit.
But suppose someone other than the Decider refuses to follow, say, some law that denies some folks the vote or a law that confines dissent to areas where it can't be heard. Violation of such a law could open up a discussion that might turn out differently.
Glenn Greenwald said...
ReplyDeleteThere is nothing in that bill which suggests, implies, or denotes that anything the Bush administration did previously was legal, nor does it remotely imply that any defenses they've raised were valid. It's illogical to suggest otherwise.
Ummm... The rest of your post suggests just that.
The Bush administration has two excuses for violating FISA - "A" and "B". A is the statutory defense - "the AUMF implied that we could." B is the Constitutional claim - "the Constitution gives up the power to do so."
This bill removes "A" from the arsenal, therefore making it much harder for the administration to defend its conduct before a court.
If Congress felt the need to require specific waiver of FISA in the future, it means that they have serious concerns that the AUMF did in fact waive FISA for the purposes of the conflict against al Qaeda and its allies.
It also would make it virtually impossible for the administration to claim, even under "B", that is has the ongoing right to violate the law, since it cuts off funding for any future lawbeaking.
The fact that Congress is seeking to cut off funding for programs which do not comply with FISA makes it pretty obvious that Congress recognizes that they have no other Article I power with which to enforce FISA against a President.
This bill is an attempt to amend FISA to get around the President's legal defenses and therefore an admission to the legal sufficiency of those defenses.
DavidByron said...
ReplyDeleteThank you bart for showing how easy it is for the dittoheads to get behind an argument that this new bill validates the exact position it supposedly seeks to repudiate. Glenn, your mistake is thinking rationally. These people don't do that and neither does the media.
Huh?
If Mr. Bush's legal positions had no merit, there would be no need to amend FISA to get around those positions. Instead, all Congress would need to do is vote on Articles of Impeachment for violating the original version of FISA.
The bill specifically addresses the argument that the AUMF gave Bush authority. Indeed that it does so is the main reason you like it. So how can you turn around and deny that it addresses that argument? The very existence of a law to respond to Bush's argument tends to validate the argument.
ReplyDeleteIt ADDRESSES the argument by rejecting it. To address an argument is not to acknowledge its validity. That's like saying that because I have addressed the administration's AUMF claim, I have acknowledged its validity.
When the President of the U.S. makes a legal claim about what Congress intends, and has a team of lawyers aruging it, that claim is out there. You can either ignore it or address it. These Senators want to foreclose that claim for good - rather than ignore it - by making clear that it is not valid.
It is baffling that someone would say that because they have "addressed" an rgument, it means they have acknowledged its validity.
I SAID: This bill removes [AUMF argument] from the arsenal, therefore making it much harder for the administration to defend its conduct before a court.
YOU SAID: Who cares? Their strategy is to make sure it never gets to court. Why? because any court would throw out their godawful argument. So-called argument. It's just a stand in for a legal argument. It's spin. Propaganda.
You ceratinly are confident in what the Supreme Court -- currently composed of a majority of Scalia, Thomas, Roberts, Alito & Kennedy - will say about the AUMF argument. I agree the argument is frivolous. But many frivolous arguments have been accepted by the Supreme Court before. I'd prefer that there be no AUMF argument so that that option is eliminated - - both for the Court and for the administration. Why would you prefer that Congress do nothing about it and allow the administraiton to keep arguing it?
It's as if you think Bush will be too embarassed to continue to push his ridiculous argument any more if this bill passes.
Nobody would claim that Congress intends the AUMF or any other bill to implicitly repeal FISA when a new law says exactyl the opposite. The fact is that there are all kinds of frivolous legal defenses floating around - but the Administration hasn't adopted most of them. Why haven't they? It's because they care about how their arguments look politically, and they care about whether their positions are tenable to a court, and tenable to their supporters.
The basic difference here is that some people on the Left think that George Bush is Lex Luthor - that he goes to his underground cave at night and cackles with Omnipotent Evil Laughter and that nothing can stop him. I really don't understand why those who think that even bother to do anything, since that view means that everthing (short of arresting him and bringing him to the Hague) is worthless because He Will Always Win with his Great Evil.
I don't think that way. I don't think they're invulnerable. The more untenable arguments they have to make, the more support slowly slips away, the more allies they lose, the worse they look. It's a gradual process. It doesn't provide immediate gratification. But as your Comments here reveal, those unwilling to engage in that process never have anything to offer other than constant proclamataions that nothing will work.
I think that the more they are forced into making increasingly untenable arguments - and the more this confrontation is forced - the better.
Are you kidding me? Have you heard anything Bush's lawyers have said for the last five years? You know exactly what they will say. Executive priviledge. The constitution says the president has the right to defend the country. Bush will get on TV and say, "I don't need a permission slip from Congress to defend our country from terrorists!" In other words exactly what he has said all along. Why should he change? This bill changes nothing. It doesn't make his argument less sound because it was already completely unsound.
Right now, they can claim that Congress has no right to regulate eavesdropping becasue nothing in the Constitution explicitly says that Congress has that power. Therefore, you can confuse the Bart's of the world by making that claim.
That isn't true for the funding power. Even the most pro-Bush legal defenders acknowledge Congress has that power because the Constitution expressly says it does. Again, if Bush is Lex Luthor, he can argue that this spending power doesn't exist, because Lex Luthor is all-powerful and nothing can defeat him.
But in the real world, you can't run around arguing that Congress doesn't have the power to de-fund the program when the Constitution expressly says it does and anyone can read that in plain English.
The point is, as explained above by at least 4 people, that any congressional activity that doesn't slam Bush but is seen to deal with the issue will appear to be an endorsement. This bill in other respects already bends over backwards to endorse Bush with it's additional no-warrant period and so on. Hell's teeth, it's SPECTER. He never comes through on anything. You've remarked on that yourself.
I've explained as best as I can the reasons why this bill makes it harder for the White House to achieve what they want here and to get rid of this scandal. If you don't see those ways by now, nothing I can say will make you.
But since you find this course of action so unsatisfactory, why don't you share your alternative plan for making sure that the Bush administration will be held accountable for their lawbreaking? I'm sure you wouldn't be sitting there being so dismissive about every strategy unless you had one of your own that was better. So what is it?
Thank you bart for showing how easy it is for the dittoheads to get behind an argument that this new bill validates the exact position it supposedly seeks to repudiate. Glenn, your mistake is thinking rationally. These people don't do that and neither does the media.
ReplyDeleteYou can't base what you do on the Bart's of the world. The blind loyalty combined with the denseness will always put a certain group of people out of reach.
But the point now is to force a judicial adjudication of the president's lawbreaking and to get more and more Americans to see it. Anything that brings us closer to those goals is a good thing.
Glenn you shouldn't have to resort to these ad-hominem "arguments". You seem to be attacking my character and saying if I don't prove my character to your satisfaction then my argument cannot be true.
ReplyDeleteDavid, an "ad hominem" argument is an argument along the lines of - "You are X, therefore your argument is false." As in "You are a socialist and therefore your argument is false" or "You are stupid and therefore your argument is false."
I strongly dislike that form of argument and try diligently to avoid them. I'm human and so periodically something approximating it may seep into what I write, but I just re-read what I wrote to you and I really don't think anything can be fairly characterized as ad hominem.
Well wouldn't it be nice to live in a word where only good people could make good arguments. As it is your comment above is nothing but a distraction; you yourself have offered no alternative plan and why should you since neither one of us is a member of congress. It's not like we're dictating what Specter does. We're simply commenting on it and deciding what it means.
My point is that I am as familar as you are with the flaws in this approach. Like you, I know that this administration is lawless and makes frivolous legal arguments, and you know that I know that.
That's where we are. Now the question is - what do we do? I can see how this legislation can be used tactiaclly to undermine the administration and force them into a more difficult spot. As a result, I talked about why I thought this legislation could be a step forward.
You keep emphasizing that you don't think so but you never say what you think should be done instead. I think that's a very common but very serious flaw in political arguments. Virtually nothing in politics is perfect. Identifying flaws is easy. Figuring how realistic ways to effect change is hard. Most people are willing to do the former, but not the latter. When I see that, I point it out and encourage people to identify superior solutions instead of just picking apart other people's strategies.
Glenn Greenwald said...
ReplyDeletedavidbyron: Thank you bart for showing how easy it is for the dittoheads to get behind an argument that this new bill validates the exact position it supposedly seeks to repudiate. Glenn, your mistake is thinking rationally. These people don't do that and neither does the media.
You can't base what you do on the Bart's of the world. The blind loyalty combined with the denseness will always put a certain group of people out of reach.
Nice ad hominem non response to my point.
It is self evident that Congress would not waste the time attempting to amend FISA to get around the Administration's legal positions if those positions did not pose a genuine legal roadblock to imposing FISA on executive intelligence gathering.
Your argument that Congress is "repudiating" these legal positions has no meaning.
If the Administration's legal positions had no merit, Congress could just as easily "repudiate" them by voting on Articles of Impeachment.
HWSNBN sez cluelessly:
ReplyDelete[Glenn, to David Byron]: You can't base what you do on the Bart's of the world. The blind loyalty combined with the denseness will always put a certain group of people out of reach.
Nice ad hominem non response to my point.
Nah. It was just an observation. It wasn't offered as a rebuttal to any "point" of yours (in fact, it wasn't even addressed to you). "Just the facts, m'am, just the facts." And that's not an ad hominem.
Bart:
FWIW, you might claim (with some plausibility) that because I -- correctly, it seems -- point out that you're a resume-inflating blowhard and quite arguably a fraud (leaving aside for the moment that you're an eedjit as well), that I engage in ad hominem argument against you. Superficially, this may be true, but as you should know (from your vast experience as a litigating "criminal prosecutor", cornering all those perps in "Perry Mason" moments that leave entire courtrooms slack-jawed with awe), the veracity of one's testimony can be attacked indirectly by showing a propensity for dishonesty [see, e.g., FRE Rule 608(a)]... "ad hominem" it is, but play with the lawyer types and such and you need to play by their rules.
However -- and it is a big "however" -- the reason I needle you so mercilessly about your eedjitcy, your dishonesty, and your inflated self-image is that you need to get a proper sense of your self-importance and worth ... and perhaps above all a better idea of how others see you. Believe me, when you make that break-through, you'll be a happier man ... and you might just pipe down a bit with your outrageous prevarications, dissembling and outright fantasy here. It's for your own good. Really.
Cheers,
I found this link at The Left Coaster. It's an article from the National Journal about the DOJ Office of Professional Responsibility shutting down its investigation into the Justice Department's approval of NSA eavesdropping.
ReplyDeleteI haven't finished it all yet -- but it's worth the read, I think.
Glenn:
ReplyDeleteIt is baffling that someone would say that because they have "addressed" an [a]rgument, it means they have acknowledged its validity.
Indeed, a lawyer would be remiss if they did not address the points made by an opposing brief even if they think it's complete horsepuckey that should be obvious to a judge. They shouldn't (and generally don't) spend a lot of time refuting obviously frivolous arguments, but they should say quickly and concisely why they are wrong ... and move on.
That's what the bill is doing here, in essence: If passed, it no longer becomes tenable for the maladministration to argue any supposed implicit FISA repeal on the basis of the AUMF; this already specious claim is then easily and dispositively refuted by simply referring to the specific language of the bill and even the pathetic argumentum ad ignorantiam proffered by the maladministration becomes patently ridiculous ... and obviously moot as well.
Cheers,
You seem intent on getting people to acknowledge that America is the new "nazi" in the world, and that America is the most evil country in the world as well, but when I asked you what you want to see come from this, you didn't take my question seriously. I was serious.
ReplyDeleteAmerica could easily become the next fascist state, more like the Italians than the Nazis, but that's a difference between oranges and tangerines. That is more accurate. Intent on being the dominant military force and economic on the planet. Are we the most evil? Hardly, but the capacity for damage we can do is greater simply because we are in the position we are in. We have never been the "saints" some Americans are convinced we are. It's difficult to know if Byron is more anti-American or more anti-Capitalist. I suspect the latter.
We want empire. We don't do empire as well as the British, and even they gave it up last century because it's more trouble than it's worth, and they were experts at it.
ReplyDeleteNote to Senators Specter and Feinstein: You might want to rethink that whole troublesome "exclusive means" business.
ReplyDeleteOne fine day FISA is going to be declared unconstitutional by the supreme court anyway, what's the point of making it even more unconstitutional than it already is?
Various Anonymii, comented on the fact that writings on the internet don't use paper. However, if they could all read they would note that my post which they quoted back was not limited to just writings on the internet. Maybe they assume that Glen and the moonbats like him don't ever write anything on paper, but I suspect they burn up considerable amounts of virigin forest writing chimpy notes between themselves, newspapers, his entire book, etc.
ReplyDeleteSays the "Dog"
Feinstein's proposed bill requires the President to submit to the authority of the FISA court to decide whom will be the target of intelligence gathering as the price of spending money already appropriated for the NSA.
ReplyDeleteIt is well established that Congress may increase or decrease funding for or defund an executive department or individual program.
However, the Courts usually hold that Congress may not require the President to forego his Article II powers as a requirement to spend money Congress already appropriated for a department or program.
In Swaim v. United States, the Supreme Court instructed:
"Congress may increase the Army, or reduce the Army, or Abolish it altogether, but so long as we have a military force Congress cannot take away from the President the supreme command...Congress cannot in the disguise of "rules for the government" of the Army impair the authority of the President as commander in chief."
HWSNBN is wrong once again:
ReplyDeleteHowever, the Courts usually hold that Congress may not require the President to forego his Article II powers as a requirement to spend money Congress already appropriated for a department or program.
In Swaim v. United States, the Supreme Court instructed:
"Congress may increase the Army, or reduce the Army, or Abolish it altogether, but so long as we have a military force Congress cannot take away from the President the supreme command...Congress cannot in the disguise of "rules for the government" of the Army impair the authority of the President as commander in chief."
Just one teeeeennnsyy problem with counsellor "Bart"'s citation here:
It's not true!
You will look in vain to find that language here:
Swaim v. U.S., 165 U.S. 553 (1897). And that's the only hit you get for "Swaim" on the Findlaw U.S. Supreme Court case site (nor does any other "Swaim" show up on the SCOTUS official site).
FWIW, I did Google a bit and find the "quote" here, but that is not a court opinion, and is probably mistaken as well. Listed as "Swaim v. U.S.", no further cite given. Part of the Iran/Contra Senate Minority Report. Did Harold "Bart" DePalma help write this?
This is the kind of crapola that will get you in real trouble in court if the judges catch you doing it. Mr. DePalma's potential clients should take note.
Cheers,
armegednoutahere:
ReplyDeleteI hope some day Bart comes to appreciate the investment you've made in his education.
Well, I hope he does. I certainly don't. From the likes of the above (and elsewhere), it was money down the toilet.
You know, if I didn't see his web page, I'd think he was one of those "IANAL, I just play one on the Internet" types. But assuming his web page isn't a total fraud, it cheapens my overall opinion of the bar ... they'll let anybody in.
Cheers,
This comment has been removed by a blog administrator.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteFolks, this is a banner day. arne the liar actually caught me in a mistake.
ReplyDeleteI did take the alleged quote from Swaim v. US from the Iran Contra minority report and assumed it was from the Supreme Court.
In fact, the Supreme Court decision is dated 1897 and the case cited in the report was 1893 and probably comes from the court of claims decision which was appealed to the Supremes.
I stand corrected.
Good catch arne.
Blind squirrels do sometimes find acorns...
What you lie-brals fail to understand is that in a time of war, the President automatically assumes the Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.
ReplyDeleteBart, please show us where in Article II the Executive is given these enumerated powers.
ReplyDeleteJust once, I want a pseudo-conservative to point that out, or is the Constitution 'just a GD piece of paper'?
HWSNBN sez:
ReplyDeleteFolks, this is a banner day. arne the liar actually caught me in a mistake.
Ummm, hate to point it out, but the person here who was shown to be wrong was HWSNBN (which, to his credit, he admits, seeing as it's so freaking obvious that it's hard to dodge that conclusion). But hardly a banner day; I've been nailing the sucker pretty much every day now for quite some time. But I will have a beer: He admitted it.
Now do you think he's going to tell his clients that his "career" as a "criminal prosecutor" was as a student intern? Or, for that matter, that he thinks the "exclusionary rule" is a very carefully circumscribed and limited legal defence (you know, things that might be of some relevance to clients with a DUI arrest)? Or that he thinks that citing dicta as the "holding" of a case is good form? Dunno, folks, waddaya think....
Cheers,
For that matter, HWSNBN's 'admission' here reminds me of nothing other than Dubya's regret for his "Bring 'em on" talk (full press conference transcript here, and the full extent of the analysis I could manage before being overcome with nausea here).
ReplyDeleteCheers,
phoenician in a time of romans:
ReplyDeleteWhat you lie-brals fail to understand is that in a time of war, the President automatically assumes the Power To lay and collect Taxes, ...
You misspelled "pay", I think. Yep, fair is fair, and when he takes us to the party, he ought to pick up the tab....
Cheers,
continuing on with HWSNBN's humiliation and ridicule:
ReplyDeleteI did take the alleged quote from Swaim v. US from the Iran Contra minority report and assumed it was from the Supreme Court.
In fact, the Supreme Court decision is dated 1897 and the case cited in the report was 1893 and probably comes from the court of claims decision which was appealed to the Supremes.
So there we have it: the troll HWSNBN basically admits he's a "cut'n'paste" troll. But we've been saying that all along. Time to start Googling his miasmatic emanations, or actually, the ones that sound halfway coherent at least, and see if we get some hits. I suggested his kinship to Ben Dommenech a while back; little did I suspect that I had him nailed to rights....
Why don't we tell the troll how to put in a blue clicky, and then he can save himself lots of time and just point us to all the Freeperville/WhirledNutzDaily/maladministration /RNC crapola he thinks he should be thinking that day, and we can just ignore him as a sentient being.... What say you, folks?
Cheers,
I blogged about the issue of Congress using the power of the purse to rein in Bush earlier this month. I just wonder how this will now play out. As mal pointed out early on in these comments, if Bush were to ignore Congress's constitutional authority over budgetary matters, it would most certainly be considered an unconstitutional infringement of the Executive on the Legislative.
ReplyDeleteFeinstein can't have it both ways.
ReplyDeleteWhy write legislation to bolster FISA and then vote to confirm the nomination of a man who has repeatedly ignored it, doesn't know the 4th Amendment, and illegally (IMHO) circumvented that amendment by substituting 'reasonable belief' for 'probable cause'? (Hayden also contradicted himself during his testimony by asserting the wiretaps were done under probable cause.)
If you vote in crooks, you shouldn't be surprised when they break the law ... again.
Arne...Why don't we tell the troll how to put in a blue clicky, and then he can save himself lots of time and just point us to all the Freeperville/WhirledNutzDaily/maladministration /RNC crapola he thinks he should be thinking that day, and we can just ignore him as a sentient being.... What say you, folks?
ReplyDeleteI say we track down the names he posts under at Freep, Redbait.org and Little Queen Fucknozzles. I think a few of the folks at Sadly, No! still have people in deep cover at those sites. Another difference between us and them. Bart is still here, and none of us would last more than 30 seconds at those sites.
Nuf Said said...
ReplyDeleteBart's potential clients are drunk. Coincidence you say?
Spew! Coffee >>>>>>>> monitor!
I agree with those here who question the effectiveness of such legislation. It strikes me as just one more ineffective finger plugging a hole in a dike that's springing new leaks faster than we can address them.
ReplyDeletePassing any legislation, be it funding restrictions or otherwise, is all but useless until the executive branch is held to the rule of law. If any legislation can be ignored by the executive branch simply by attaching a signing statement to it, why bother with any legislation?
In fact, some kind of limited moratorium on specific types of legislation might be in order until the larger question is resolved. (I'm not suggesting we shoot ourselves in the foot here.)
Oh, just one more comment on HWSNBN's more fundamental dishonesty:
ReplyDelete[HWSNBN]: However, the Courts usually hold that Congress may not require the President to forego his Article II powers as a requirement to spend money Congress already appropriated for a department or program.
Great as an introductory statement. At this point, I'm sure that you, the amazed reader who didn't know any of this, are now waiting with bated breath for the litanty of cites to courts having held this to support HWSNBN's pet theory here. If you're real optimistic, you might hold out hope that HWSNBN will actually quote the opinion for a change so you can tell that HWSNBN just ain't making it up as he goes along. So, hang on and let's see, folks:
[HWSNBN]: In Swaim v. United States, the Supreme Court instructed:
Wow! Did they really? Well, the troll HWSNBN says it's true! The Supreme Court! And, oh, boy, did they "instruct"! Why, they almost got out their rulers and rapped the attorneys and their client Congressmen on the knuckles just to make sure they got the message....:
[The purported "Swaim" SCOTUS "instruc..." -- ooops, I mean "holding"]: "Congress may increase the Army, or reduce the Army, or Abolish it altogether, but so long as we have a military force Congress cannot take away from the President the supreme command...Congress cannot in the disguise of 'rules for the government' of the Army impair the authority of the President as commander in chief."
There you have it from Professor DePalma, always so eager to school the likes of you and me ... he's even said he'll school me for free.
But as I said, small problem here: That wasn't the Supreme Court. And when confronted with this, HWSNBN has the good sense to admit the blindingly obvious, that he, 'Perfessor' DePalma, was wrong there. But how wrong was he? Let us count the ways:
1). HWSNBN said "Supreme Court". But not even the paper (note, not a decision) he "cut'n'pasted" the quote from said that; this is what it said in introducing the quote in question:
"To explain the way it works, it is easiest to begin with a quotation from the 1893 case of Swaim v. U.S.:..."
So the SCOTUS crapola is all 'Perfesser' DePalma's doing. But the assertion that this is a "holding" is also one of HWSNBN's invention. In fact, the Swaim v. U.S. case involved the court martial of Gen. Swaim, and his challenge to the legality of that court martial in a claim for lost pay as a result. Congress wasn't a party to the case, nor was any such Congressional action struck down as a result (in fact, pretty much the only law that it was claimed that the president might have disobeyed in Swain was the British mutiny act, and the Supreme Court in Swain pointed to a specific more recent Congressional law as allowing the presidential action, even were the British mutiny act to have once been law, and applied to the circumstances). So the quoted language was hardly a "holding" as HWSNBN asserts ('Perfesser' DePalma does seem to have a tab bit of difficulty with the concept here on more than one occasion).
2). This case (the 1893 one, apparently a Court of Claims one) seems to be the only (and thus by default, the most recent) case cited by the Iran/Contra minority report in support of this proposition. That's the best they can do? Doesn't look good for HWSNBN's claim that "courts usually hold...."
3). The paper that cites the Swaim opinion is in fact the minority report from the Congressional Iran/Contra hearings, the die-hard Republicans trying to white-wash the illegalities of that other maladministration, the Reagan one. The majority report, I think, does a better job with their authorities; just go look up the paper at the link above to see what the majority thought of the Boland amendment. Of course, one must consider that this is Congress, so they might have an opionion at odds with others on their powers, but to pretend as HWSNBN does here that the minority thinking (to the extent it even applies to the proposition that HWSNBN puts it up for) is the preponderant consensus on the issue is once again wrong.
In sum, it wasn't just the specifics of the court citation that was wrong. HWSNBN is wrong in so many ways.
"Cut'n'paste" of Republican "talking points". Mindless re-assertion of someone else's thoughts, mangled in the process. Confusion of dicta with holdings. That is what passes for "scholarship" from 'Perfesser' DePalma, who seeks to educate us on the intricacies of the law. I'd say that we should ask for our money back.
Cheers,
If Bart had any shame he would leave here never to return. It's a shame, but... he'll be back.
ReplyDeleteanonymous:
ReplyDeleteIf Bart had any shame he would leave here never to return. It's a shame, but... he'll be back.
But not here. You know: "I've moved on. Why can't you?" When he gets pasted, he cuts and runs off to the next thread ... where he starts the same ol' dance all over again.
Typical behaviour of the RW apologists; look at this thread for more such general instances of the RW "tactics"...
Cheers,
Glenn said:
ReplyDeleteBut since you find this course of action so unsatisfactory, why don't you share your alternative plan for making sure that the Bush administration will be held accountable for their lawbreaking?
The impeachment process is the explicitly defined path for this. As bart said, If the Administration's legal positions had no merit, Congress could just as easily "repudiate" them by voting on Articles of Impeachment. That it is not going to happen with this Congress is a fact known to me (see below).
More:
That's where we are. Now the question is - what do we do? I can see how this legislation can be used tactiaclly to undermine the administration and force them into a more difficult spot.
Yes, it could be used that way, but any provisions that have any effect of altering the Bush administration's behavior or punishing them for their actions will be removed from the bill before passage, assuming it even gets to the floor. The Republicans (and apparently the Democrats, somehow) don't think this warrants impeachment. Obviously. However, they have shown no interest in even symbolic measures to curb this law-breaking, like Feingold's censure resolution.
The (previously unstated) assumption of those of us who think this bill is worthless is that any teeth will be pulled from it. The bill will at most gain nothing, while potentially providing a shield for the administration's actions, a fig leaf to cover their crimes. That to me is a worsening from the status quo. It would make it less likely for some potential future Congress with spine or the judiciary to do The Right Thing.
Armagednoutahere said:
And since realistically we know there's no way this congress is going to impeach Bush, or even threaten to, then we have to take each bone they toss us for whatever meat it might have on it.
This isn't selling your house, where you take the best deal you can get and move on. These are fundamental issues of principle that we should not compromise on.
An aside:
If Bart had any shame he would leave here never to return. It's a shame, but... he'll be back.
Glenn's is the only political weblog I read. I can't stomach most of them. I may disagree with bart's positions and tactics, but I don't want an echo chamber. We need people like bart to get anything done because they're a substantial part of the population. We need to convince those who currently disagree with us, and being hostile will only reduce the likelihood of that happening.
ketan:
ReplyDeleteI agree with a lot of what you say (though I see Glenn's side as well), but:
[anonymous]: If Bart had any shame he would leave here never to return. It's a shame, but... he'll be back.
Glenn's is the only political weblog I read. I can't stomach most of them. I may disagree with bart's positions and tactics, but I don't want an echo chamber. We need people like bart to get anything done because they're a substantial part of the population.
You ain't getting "Bart" to come over. He's the ultimate RNC "talking points" tool, and will regurgitate anything they give him to defend his Fueh... -- umm, sorry, "preznit". He's part of the problem, and he'll never be part of the solution. Were he an honest conservative, he'd do his best to defend the maladministration with whatever is legitimate (albeit that's not much) ... but he doesn't. He's more than happy to serve up the most inane, the most contorted, the most illogical defences possible for his preznit (witness this "Article II" mumbo-jumbo, and his absurd claim that the only regulation possible on Dubya by the Congress is the UMCJ ... something that didn't even exist for over half the country's existence and certainly isn't mentioned in the Constitution). He'll take logically contradictory positions from day to day, depending on what the story of the day is (example: insisting now that FISA is only for criminal investigations). And he'll do it as dishonestly as necessary.
There just ain't a chance here; he'll defend the Doofus-In-Chief and Abu Gonzales to the end.
And do it through the well-known RNC technique of "argument by repeated assertion".
Why you would welcome that (except as an easy foil for practising your rhetorical tools), I don't know.
Cheers,
This is absolutely ridicolous. Let me see if I got this straight. The President uses bogus legal justifications (AUMF and "I'm the decider") to ratioanlize breaking a very specific law. Now that the Congress and public are interested in exactly what hes doing, he tries to change the law to allow the illegal activities yet he will face no legal action for breaking the law as it now stands?
ReplyDeletebut with this 'family' in charge, does anything the 'congress' does matter
ReplyDeletedid a couple million get diverted (illegally) from afghanistan to iraq before the war ??
wasn't there some îrân-guns-drugs-hostages-contra-tow missile activities going on despite a specific prohibition on just that ??
arlen, i'm still wondering, is it pressure or money ?? becuase i'd like to know what was done for you to allow fundamentalist police staters to allow fascism to come to our country on YOUR watch
Is someone running against Feinstein in the primary? I want to contribute to the campaign and volunteer to phone voters.
ReplyDeleteGlenn, I disagree with you here.
ReplyDeleteThe principal benefit of the bill is that it (a) eliminates the ludicrous claim that the AUMF implicitly authorized the administration to eavesdrop in violation of FISA and (b) expressly bars any future claim that Congress "implicitly" provided an exemption from FISA.
a) The bill does not eliminate the claim that the AUMF implicitly withdrew the provisions of FISA. It's wording is more like "OK, we'll accept your claim this time but don't you dare try it again.
b) And we'll surely have gotten our act together by then to stand up to you.
Passing this new bill, as if the bill(s) that once passed FISA really didn't pass FISA cause you were only kidding earlier, is as ludicrous as passing of that new bill that prohibited cruel and unusual punishment. It's like saying it's ok if you break the law until we pass it a second time.