I have a post up today at C&L this morning regarding the impact of Hamdan on the administration's warrantless eavesdropping program. Following up on Anonymous Liberal's excellent point that no Justice Department lawyer could now certify the legality of the program in light of Hamdan (certification which the program supposedly requires every 45 days), it is clear that the administration would be engaged in a whole new level of lawlessness if it continues to eavesdrop in violation of FISA even now that its only two legal justifications for doing so have been squarely rejected by the Supreme Court.
Beyond the legal implications, there ought to be clear political implications as well. As I document in the C&L post, the principal excuse invoked by Democratic Senators (such as Barack Obama) for refusing to support Sen. Feingold's Censure Resolution was that the President at least had a good faith basis (i.e., the advice of administration lawyers) for violating FISA. Therefore, they argued, even if the President has been breaking the law, there was at least a plausible (albeit wrong) legal "justification" for his doing so, thus rendering censure inappropriate.
But in the aftermath of Hamdan, that cannot possibly be maintained any longer. Post-Hamdan warrantless eavesdropping on the part of the administration requires a brazen defiance of the law -- even more brazen than before -- which not only has obvious implications in the realm of the criminal law, but also removes the Democrats' primary excuse for failing to stand with Sen. Feingold in support of the rule of law. Assuming that warrantless eavesdropping continues even in the wake of Hamdan, inaction on the part of the Senate now would be to endorse the President's power not only to violate Congressional law, but to act in defiance of the Supreme Court as well.
UPDATE: Mike Stark e-mailed me a recording of my debate with David Horowitz on Friday night's Alan Colmes Show. (SEE BELOW - UPDATE III).
UPDATE II: Until now, I hadn't had time to really examine this potentially interesting report from the NYT that Republican House Intelligence Committee Chairman Pete Hoekstra wrote an ostensibly scathing letter to President Bush complaining "that the administration might have violated the law by failing to inform Congress of some secret intelligence programs and risked losing Republican support on national security matters."
When I first read the article, it struck me as very odd, because Hoekstra is essentially the House version of Pat Roberts -- someone who, with unseemly eagerness, wants to rubber-stamp everything the administration does and is an ardent opponent of meaningful Congressional oversight. There had to be something else going on besides a sudden and quite uncharacteristic desire on the part of Hoekstra to force the administration to comply with their legal obligations to brief Congress on intelligence matters. After all, Hoekstra has been one of the leading defenders of the administration's illegal programs, including warrantless eavesdropping.
This analysis from Marcy Wheeler explains what is really going on here and is highly worth reading. As suspected, this outburst of feigned independence from Hoekstra has nothing to do with a sudden awakening on his part that Congress is supposed to play a role in our government and that the President is required to abide by the law. Like most of his colleagues, he could not care any less about such matters. Hokestra's letter to the President is here (.pdf).
UPDATE III: My debate with David Horowitz on Friday's Alan Colmes Show can be heard here. The tape is imperfect because it begins about 30 seconds into the segment, cuts off the last two minutes or so, and contains commercials (through which you can easily fast foward), but the bulk of it is there.
Horowitz lost control of his emotions very early on -- literally. As a result, he was unable to speak coherently or even stop speaking at all -- both when it was his turn and mine, and his contributions were typically composed of screaming "LIAR!" and "LEFTIST!" over and over with a shriek so hysterical it has to be heard to be believed. As a result, part of the debate, especially as it progresses, has a crass Jerry Springer feel to it, but I am satisfied that between myself and Colmes, the points that needed to be made were made. Horowitz -- like most of the tough guy neoconservatives do when confronted -- backed down, at one point saying that he was wrong to promote publication of the NYT photographer's home address, but then insisting that others at the NYT are waging "war" and are thus "fair game."
So what. I'm so sick of this. Every day I read stories about more blatant law breaking by this administration and NOTHING happens. This is outrageous. I blame the democrates. There should be a steady drumbeat of the need for investigations and charges, yet we have nothing. How is this possible? If the situation was reversed the republicans would have had a democrat president out is seconds. Why is nothing happening? Seriously! I have lawbreaking and do nothing about it fatigue! I know this sounds like a rant but I am serious. WTF? Anyone? Glenn?
ReplyDeleteWhen are the moderate Republicans going to acknowledge Bush has set them aside as well as the Dems, and of course, the Constitution?
ReplyDeleteThe administration’s theories to justify the President’s lawbreaking have always been frivolous. But for those pretending not to recognize that fact, the Supreme Court has so ruled.
ReplyDeleteI’m afraid that now they are just going to pretend that the Supreme Court has not so ruled. Indeed, Bush went so far as to claim the Court actually supported “his decision” because it did not rule Gitmo "illegal."
So, we can’t really expect this administration to change its behavior, and the real question is: can we expect Congress to stop acting as a rubber stamp for this administration and finally stand up for the law?
At this point, I really don’t know the answer to that question. But what this fight is about is becoming clearer, and that’s to this administration's disadvantage. As the New York Times put it today:
The division here is not between people who want to win the war on terror and those who for some unfathomable reason do not. It is between an executive branch that seems bent on proving that the president has unlimited power and those who believe that the Constitution and the rule of law did not crumble along with the World Trade Center.
It’s time to make this point clearly and repeatedly to overcome the fog of legal obfuscations that will be forthcoming to confuse people, and to counter the irresponsible “war on terror” rhetoric used to intimidate them.
To paraphrase Sen. Graham, we don’t need to scrap the Constitution in order to fight terrorism. To the contrary, upholding it and not being reduced to the level of the terrorists is one of our strongest weapons.
I'll lay odds that 45 days from the Hamdan decision, no changes in the NSA wiretapping occurs. A criminal knows he's breaking the law, a court decision reaffirming he's breaking the law never stopped his criminality.
ReplyDeleteglenn - will take this post with us to senator kennedy's office when we (roots-ma) meet with an aide this week.
ReplyDeletefor whatever good it will do. but, the court has no enforcement mechanism - that's left to congress with it's power of the purse... now's the time for them to step up and assume their responsibilities.
every single senator ought to support censure (at least) - that they don't is an outrage.
Therefore, they argued, even if the President has been breaking the law, there was at least a plausible (albeit wrong) legal "justification" for his doing so, thus rendering censure inappropriate.
ReplyDeleteBut in the aftermath of Hamdan, that cannot possibly be maintained any longer.
Why not? Unless the public is overwhelmingly convinced of this there is nothing to compel the congress to acknowledge it. Unless the congress is willing to go through with impeachment, the only real lever it has, there is nothing to compel the administration to comply or even admit they are not in compliance.
So what. I'm so sick of this. Every day I read stories about more blatant law breaking by this administration and NOTHING happens.
ReplyDeleteIt took two years after the Watergate break-in for Richard Nixon to be forced from office. Presidents don't get hauled off to prison overnight. It takes work and time to make the case. Stopming your feet and demanding that things happen more quickly doesn't achieve anything other than venting (which, admittedly, can have its value).
More and more people are becoming aware of this lawlessness. The Supreme Court just ruled that their theories have no legal basis. The President continues to be one of the least popular presidents in history. There is clear progress. But those who continue to screetch that nothing is being done and it's all hopeless and everything is hopelessly corrupt actually do nothing but feed the defeatism and sense of resignation that is the Bush administration's best friend.
I'm afraid it's up to we the people to heap censure upon our (currently) elected congressmen.
ReplyDeleteSo who's got the clock?
ReplyDeleteWhen was the last 45 day reauthorization? Shouldn't there be a countdown going on?
Glenn, I bought your book the other day so if your counting thats...um...1 more. Go out and buy yourself something nice:)
ReplyDeleteGreat strategy - post it over there and then have the circle of links link to it. Create the lie that you are an expert a-la FDL.
ReplyDeleteGreat strategy, brilliantly excuted. Way to manipulate the left and steal the proud heritage of "liberalism."
I'm not doubting you at all Glenn, but could you cite the exact language in the opinion which makes the NSA spying illegal? Perhaps you have already done so, in which case I am sorry I missed it.
ReplyDeleteAlso, could these Justice Dept. lawyers/WH counsel be disbarred for continuing to assert the legality of the program after Hamdan? Does the will exist to put something like that forward, and what would the consequences be to the admin.?
Thanks
Sonya
From shooter242 at 4:46pm:
ReplyDeleteI believe that Glenn and his fellows are on record as in favor of eavesdropping, while also being on record against it.... at least as a matter of law.
In favor of legal surveillance with proper warrants? Yes.
In favor of illegal surveillance WITHOUT ANY WARRANTS WHATSOEVER? No.
Is that really that difficult to understand, shooter? Do you expect the rest of us to think you are really that stupid you can't understand a so simple a distinction?
I'm not doubting you at all Glenn, but could you cite the exact language in the opinion which makes the NSA spying illegal? Perhaps you have already done so, in which case I am sorry I missed it.
ReplyDeleteI provided the citations in the post at C&L (where I indicated that I elaborated on the reasons why Hamdan precludes the administration's legal defenses in the FISA context).
Apparently it has escalated to threatening children. No matter what idiocy the right can come up with, the left always excels at excess.
ReplyDeleteThe difference should be obvious to anyone no matter their abilities. David Horowitz, StopTheACLU, Michelle Malkin, etc. are right-wing opinion leaders who are well-known as such.
Deb Fisch is someone nobody ever heard of until yesterday, when right-wing bloggers tried pretending that she was some sort of important towering figure on the Left in order to claim that liberals have an obligation to chastise her.
People come and make reprehensible comments like hers all the time in Comment sections on blogs. When LGF linked to a post of mine on Friday, I had all sorts of people expressing sentiments like that, including one person who told me that I should do the world a favor and commit an honor suicide the way that my Al Qaeda friends would.
Why haven't you condemned that? Why haven't right-wing bloggers? The idea that people have an obligation to condemn any random person they've never heard of who comes along and says something grotesque (a la Ward Churchill) is inane on its face. There is a pretty fundamental difference between right-wing leaders and random persons nobody has ever heard of before.
shooter: No matter what idiocy the right can come up with...
ReplyDeleteThis seems to be some ethical threshold that you have passed Shooter. At least you are willing to admit the Right is iditoic.
About the academic: she's apologized and has voluntarily stepped down from her position at the university in AZ.
OTOH, I do not believe that the Rightists that Glenn exposed have 1) apologized for their calls to kill NYT journalists, 2) recanted, nor 3) resigned their positions. Indeed, they continue to rationalize their hatred.
Do you expect the rest of us to think you are really that stupid you can't understand a so simple a distinction?
ReplyDeleteGiven the number of times he's taken things I've posted and taken them to mean the opposite of what I said, I'm afraid the answer is yes.....
So Hamden weakened the AUMF argument but saying it is decimated is bloviating to the nth degree.
ReplyDeleteDid the Supremes close Gitmo? No.
Why not? That is a unitary president decision. Did they tell Bush he cannot gather enemy combatants? No. That is a unitary president decision.
They didn't come close to even breathing on the president's inherent powers.
To try to stretch this to the NSA issue is beyond laughable.
Since Bush is still using the FISA courts there is still the gray area of where Congress infringes on his power.
From phd9 at 5:15pm:
ReplyDeleteGiven the number of times he's taken things I've posted and taken them to mean the opposite of what I said, I'm afraid the answer is yes.....
Okay, fair point. Still, it would be nice if he'd just admit it for once.
This comment has been removed by a blog administrator.
ReplyDeleteanon@5:19pm: To try to stretch this to the NSA issue is beyond laughable.
ReplyDeleteYou are laughable. Replace the kool-aid in your enemea, read the following, and weep. It comes from a constituional law professor.
All this is rank hypocrisy designed to intimidate the press and rally the party faithful, at no small cost to our democracy. The decision of the Times to reveal the secret NSA spy program may have embarrassed the President, but it was a great service to the nation. Any doubt there might have been about the illegality of the NSA program was effectively put to rest by the recent decision of the Supreme Court in the Hamdan case. The administration’s only plausible argument that the NSA surveillance program is lawful, even though it plainly violates the 1978 Foreign Intelligence Surveillance Act, is that FISA unconstitutionally limits the authority of the President as “commander in chief of the Army and Navy.” Even before Hamdan, this claim was weak, at best. After the Court’s five-to-three decision in Hamdan, that claim is frivolous. In declaring unlawful Bush’s military commissions, the Court in Hamdan reiterated what it said plainly two years ago in Hamdi – even a state of war does not grant the President a “blank check” to run roughshod over the law.
I love how you armchair lawyers get your marching orders from who knows where (God?) and then parade your ignorance for all to see like some Jerry Springer side-show freak.
[Added link]
For anyone in search of a reason for this "lawlessness" look no further than your fellows.
ReplyDeleteWhat? Glenn and his "fellows" somehow forced Bush to break the law?
So Hamden weakened the AUMF argument but saying it is decimated is bloviating to the nth degree.
ReplyDeleteLike most arguments, that's very easy to spit out as a conclusion, but much harder to back up with reasoning:
By what conceivable rationale could the AUMF NOT authorize military commissions in violation of prior statutes governing those commissions (as the Supreme Court held), but still somehow authorize eavedropping in violation of prior statute governing surveillence?
There is no way to distinguish the AUMF holding as it applies to commissions from application of that same argument to surveillance. If you think there is such a way, I'd really really love to hear it.
They didn't come close to even breathing on the president's inherent powers
The only way to believe that Hamdan did not strongly undermine, if not outright kill, the Yoo theory on which the administration has relied is to not read the decision.
I cited the specific passages in the posts linked to by the C&L post. How do those not decimate the Administration's Article II claim for the President's right to violate the law?
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ReplyDeleteFrom shooter242 at 5:49pm:
ReplyDeleteSorry yank, I thought saying "as a matter of law" conveyed that the law was against it; and Glenn, being an officer of the court, was necessarily against it as well.
To Glenn -
Do you want to try to explain this to him first?
This is an interesting discussion. http://www.youtube.com/watch?v=lJ1GTXO0U14
ReplyDeleteDo you want to try to explain this to him first?
ReplyDeleteActually, no - I would feel very bad depriving you of the great privilege.
Glenn.
ReplyDeleteMr. Amato would probably love to host your verbal sparring with David Horowitz at C&L. Why not ask him?
Why doesn't the court take one of the many lawsuits that have been filed about the NSA scandal on orginal jurisdiction instead of having all this pussy footing around on the lower court levels?
ReplyDeleteThey have the power but don't use it and I can't understand why.
From Glenn Greenwald at 5:58pm:
ReplyDeleteActually, no - I would feel very bad depriving you of the great privilege.
Feel free to correct me if I'm off here:
To shooter242 -
Your claim at 4:46pm that Being in favor of eavesdropping would require working to change the law to conform to Hamdan. betrays your lack of understanding of the underlying issue.
"Being in favor of eavesdropping" doesn't require a change in existing law, merely that the Bush Administration actually follow the laws on the books, ie FISA. At the moment, they reportedly ignore the provisions of the authorizing statute, using the AUMF passed shortly after 9/11 as an excuse to do so.
The Hamdan decision effectively rendered that excuse null and void. Given there has been no challenge to either the constitutionality of FISA, nor any demonstrated evidence against its efficacy with respect to current intelligence-gathering operations, the Statute remains pre-eminent and controlling.
To summarize: no new law is needed, as FISA remains intact and in force, and the Administration has no excuse now to continue to ignore its authority.
This comment has been removed by a blog administrator.
ReplyDeleteblueperiod: Glenn and his "fellows" somehow forced Bush to break the law?
ReplyDeleteOf course they did! That's how these Bush fantasists work: it's all "they" made me do it; "they're" responsible for me doing bad things.
It's called narcissism, where the world revolves around the Bushies but they're never responsible for anything bad--only the good stuff, which has been--at least in Iraq--slow in coming.
Edited: typos
keith said... So what. I'm so sick of this. Every day I read stories about more blatant law breaking by this administration and NOTHING happens.
ReplyDeleteAnd Glenn gave you a fine response.
More and more people are becoming aware of this lawlessness. The Supreme Court just ruled that their theories have no legal basis. The President continues to be one of the least popular presidents in history. There is clear progress. But those who continue to screetch that nothing is being done and it's all hopeless and everything is hopelessly corrupt actually do nothing but feed the defeatism and sense of resignation that is the Bush administration's best friend.
And Nixon was pardoned by Ford, but slapping the cuffs on these people isn't as important as stomping on the brakes of this train that's headed for Extremistville and putting it in reverse. There is also the "minor" matter of a Republican majority in both the House and Senate (maybe Kos ain't so crazy after all, or at least crazy like a fox) and ultra-conservative activists on the bench. I blame people like you, frankly. And to be fair, myself, because we probably were not interested much in politics until recently. These activist extremists who have taken over our government have been planning and working towards this moment for over 30 years. Don't hold your breath, (or stomp your feet). We haven't even begun to fight, and we have a long way to go.
"To summarize: no new law is needed, as FISA remains intact and in force, and the Administration has no excuse now to continue to ignore its authority."
ReplyDeleteI love how you selectively pick your laws.
There was a law that gave the Supreme Court no jurisdiction to hear the Hamden case. They heard it anyway.
There are laws that the NY Times broke in outing the SWIFT banking anti-terrorist programs.
Back in March of 2006 from the Wash Post:
The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order."
Even if AUMF was weakened, Hamden case in no way shape or form addressed the question of whether the President of the United States has inherent powers or not.
Just because FISA is passed by Congress does NOT mean Bush must follow it if he feels it violates his inherent powers.
The Supreme Court brushed aside the Detainee Act like it didn't exist.
Nowhere in the Hamden decision is this issure remotely addressed except in the dreams of this blog.
Weakening the AUMF does not obliterate the inherent powers argument. Show me where it says the president is void of wartime powers. Show me where FISA or NSA is mentioned.
Well, there is one other way to believe that Hamdan does not kill or even undermine the Yoo/Addington theories, and that is to become such a pedantic literalist that you end up refusing to recognize the precedential force of this or any other decision.
ReplyDeleteIn other words, to say, yes, sure, this is the state of the law with respect to these facts and this complainant. No one disputes that. But change a single fact, and I'll claim you have to prove its applicability all over again.
And they'll keep making you prove it over and over and over again, in the hopes that the composition of the Court will change, and one day they'll be "right." Either until that day, or until it becomes the next administration's problem, anyway.
Oh please. I went to LGF, looked up the reference to you and got bored after reading the first 38 comments.
ReplyDeleteI was referring to a comment made here, not there. I couldn't care less about that comment, but it's not much different than the one to Jeff Goldstein or thousands of others made in the blogosphere everyday.
The idea that bloggers have some moral obligation to condemn every comment made by anyone who comes along is absurd. And if that is the standard, the people who are advocating it this weekend have a lot of work to do.
She was a college professor. Theoretically one would think that to be a responsible individual, but not in this case.
She was an adjunct professor, a part-time staff member, and nothing more. And what does she have to do with any blogger who never even heard of her before?
David Horowitz is much more than a college professor, and he just urged that the blogosphere publish the names, home addresses and SECURITY SYSTEM DETAILS of all NYT editors and reporters, and then linked to his associate who did just that, including the directions to Pinch Sulzberger's home and links to ariel photographs of that home.
The comments to Jeff Goldstein were reprehensible, but comments can't get anyone killed. The actions by Horowitz can, and are intended to. And in that case, it wasn't just some random commenter but a prominent leader of the conservative movement. And yet virtually no right-wing blogs -- including the ones milking this whole "Deb Fisch" matter for all it's worth - condemend him for that (or StopTheACLU for doing the same thing).
That tells you all you need to know about the seriousness of this "controversy."
Glenn,
ReplyDeleteI appreciate the response. I think that while looking at watergate in comparison is somewhat helpfull in terms of timeline, it is very diferent than what we are dealing with today. Nixon wiretaped, Bush has wiretaped, lied us into war, outed covert CIA agents, the list goes on. And he has fear on his side. At some point one has to admit that for the level and number of obviously illegal events taking place there is little going on in response. This, as you have said, is a direct threat to our constitution, our way of life and this country! At what point do we stop saying "we are making progress. More people know about it now." How bad does it get before someone other than people like you (like our representitives!) start calling this threat for what it is loudly and publicly? I feel that we have passed that point already and this is the root of my frustration. If Bush is ignoring congress rendering our system of goveernment meaningless, why don't the dems shut it down? If the threat is as dire as you say it is why hasn't that happened yet? I don't expect an overnite response but this is getting rediculous.
Anaymous:
"I blame people like you, frankly. And to be fair, myself, because we probably were not interested much in politics until recently."
I have been involved since 2000, informing myself, talking to others, calling congress and doing what I can. I called during the judical confirmation hearings of Roberts and Alito. I'm doing what I can. I am getting tired. Seriously, does Bush need to declare martial law and void the constitution before the Dems do something serious? My god, every day new revalations of Bush's blatant lawbreaking and the compliant Republican response and the have not shut down congress yet? What more is actually going to happen to spur the dems into action? What more do they need? Bush is at 30%! Most rational people and experts agree that he is breaking the law! Something should have hapened long ago.
Cynic, shooter has proven your point. It is liberals that are to blame for bad things written on free republic.
ReplyDeleteBut the DOJ lawyers -- wearing their advocate hats rather than their legal adviser hats -- will differentiate the NSA surveillance matter, calling it "signals intelligence" and convincing themselves that Hamdan does not really settle anything.
ReplyDeleteYou may be right, JaO, but I don't think it will be as easy for the DOJ to sign off on the program as you think. First, there was clearly a mini-revolt within the DOJ back in 2004, a revolt that, for a time, prevented the program from being reauthorized. I suspect that increased emphasis on the AUMF argument is what allowed the DOJ to get comfortable with signing off on the program. With that argument severely compromised by Hamdan, some lawyers may well balk when asked to reauthorize the program now.
Also, notice that no one was willing to sign his/her name to the DOJ white paper. That may be an indication that the lawyers in the DOJ didn't want to be associated with these arguments, and that was pre-Hamdan.
The lawyers at the OLC are young, talented, and ambitious. And they have legal (not political) careers to worry about. I wonder how willing they will be to sign their names to obviously frivolous arguments. At some point the shit will hit the fan on this issue, and I wonder if any of these lawyers really want to forever be remembered as the person that signed off on the post-Hamdan memo authorizing violation of FISA.
From anonymous at 6:30pm:
ReplyDeleteJust because FISA is passed by Congress does NOT mean Bush must follow it if he feels it violates his inherent powers.
Oh, dear gods, not this again.
Look, nameless: the President has neither legal power nor moral authority to simply decide which statutes are or aren't constitutional. He is a US citizen, like the rest of us, and as such bound by the same laws as the rest of us; even moreso, as his elected position is the highest in the land, and as such carries a greater moral weight.
The entire issue of "inherent powers" will likely never be settled, given the inevitable shifts of cultural perspectives and circumstances that occur over time. The Hamdan case addressed only a small element of it, not the entire issue.
Your other 'examples' (NY Times, the Detainee Act, the five judges testimony) are too laughable to be taken seriously, so I won't bother.
Keep in mind I'm only addressing a single question here. If you want a larger debate, say so.
The Nation -- On July 5 the US Army brought charges against First Lieut. Ehren Watada, an infantry officer stationed at Fort Lewis, Washington, who has refused to deploy to Iraq with his unit because he believes the war there is illegal. Watada faces up to eight years in jail and a dishonorable discharge. But in trying the 28-year-old officer, the Army is really putting itself, the Iraq War and the Bush Administration on trial.
ReplyDeleteADVERTISEMENT
At the June 7 press conference announcing his decision, Watada argued that the Administration's invasion and occupation of Iraq was "manifestly illegal" because it "violates our democratic system of checks and balances. It usurps international treaties and conventions that by virtue of the Constitution become American law. Watada also said, "As the order to take part in an illegal act is ultimately unlawful as well, I must as an officer of honor and integrity refuse that order."
His refusal to deploy was an act of courage. It was also the product of profound reflection on taking personal responsibility for halting the US government's careening course toward authoritarianism and criminality--and of the legal justification for such acts of responsibility.
Watada's most crucial legal claims were corroborated June 29 by the US Supreme Court, in what Duke University law professor Walter Dellinger calls "the most important decision on presidential power ever."
In Hamdan v. Rumsfeld, the Court rebuked the Bush Administration not only for the Guantánamo tribunals but also for the entire view of executive power the Administration used to justify them. In a 5-to-3 decision, the Court ruled that the President cannot act contrary to "limitations that Congress has, in proper exercise of its own war powers, placed on his powers." That's just what Watada said about Bush's policy two weeks before: "It violates the Constitution and the War Powers Act that limits the President in his role as Commander in Chief from using the armed forces in any way he sees fit."
The ruling also supports Watada's claim that the Administration is breaking international law. It found the President's conduct illegal because it violated international treaties--specifically, the Common Article 3 of the Geneva Conventions. This has ramifications far beyond Guantánamo: It means the government must obey the provisions of the Geneva Conventions--such as the ban on cruel and degrading treatment and the obligation of an occupying power to protect civilians. And it solidifies the incorporation of other treaties--notably, the UN Charter, with its ban on military aggression--into US law. (For a more extended discussion of the implications of the Hamdan decision for the Watada case, see our essay, Hamdan and Watada, on WarCrimesWatch.com.
The Bush Administration has begun a massive effort to pass legislation that would nullify the Hamdan decision--enabled by Republican senators like Lindsey Graham, who told Fox News that "Congress can rein it in, and I think we should."
Citizen Resistance
The Supreme Court has no police under its command. So the question is, How will the limits Hamdan v. Rumsfeld has set on executive power be implemented?
One possible lesson lies in the Supreme Court's 1954 Brown v. Board of Education decision, in which the court ruled that "separate but equal" education was inherently unequal. In the face of this ruling, Southern states turned to what they dubbed "massive resistance," an effort to use every possible avenue to defeat the intent of the Supreme Court. Southern states convened special legislative sessions and passed laws to seize and close schools that had integrated; provided tuition grants and tax credits for segregated private schools; and repealed compulsory school-attendance laws. Mainstream civil rights organizations such as the NAACP were harassed and sometimes outlawed throughout the Deep South.
Ironically, this wholesale resistance to a Supreme Court ruling was the midwife to the nonviolent mass mobilization strategy of the civil rights movement. In a context where governments flouted the law, the Constitution and the Supreme Court with impunity, advocates of equality turned to citizen enforcement: bus boycotts, sit-ins, freedom rides, voter registration drives and civil disobedience. Over the next decade the movement created the conditions for the Civil Rights Act, the Voting Rights Act, the registration of millions of African-American voters and the ending of lynch law throughout the South. The lesson here is that when the government fails to enforce the law, it's possible for the people to organize to do so. Lieutenant Watada and his supporters are hoping his action will encourage them to do so.
Gulf War resister Jeff Paterson, who is helping to orchestrate Watada's sophisticated, web-based media campaign, said that when he talked to Watada before the lieutenant came to a decision, "The only thing he worried about is: Would it matter? Would anybody notice?" History suggests that the impact of actions like Watada's, using nonviolent civil disobedience to enforce national and international law, can be significant.
A trickle of resistance in the French military, based on refusal to participate in war crimes in Algeria, helped start a movement that in a few years brought half a million protesters to the streets of Paris in 1962 and helped end the Algerian War. Allegations of US war crimes in 1967 sparked a "call to resist illegitimate authority," led by pediatrician Dr. Benjamin Spock and others. Military physician Howard Levy's refusal in 1965 to train Green Berets for Vietnam and the Vietnam Veterans Against the War's Winter Soldier Investigation of war crimes in 1971 also played significant roles in the development of the movement against the Vietnam War.
Watada's argument bridges the concerns of those who are horrified by the Iraq War and its conduct with those who are disturbed by the Bush Administration's abuse of the Constitution and the rule of law. It addresses the soft underbelly of the Bush project--the subversion of US government in the name of the "war on terror." Watada's action is perfectly positioned to galvanize a movement that, like the civil rights movement, answers official "massive resistance" to law and justice with a resolute insistence that no one is above the law.
Restoring the Rule of Law
Friends and Family of Lieutenant Watada, a dedicated band that includes his immediate family, West Coast activists, and peace and veterans organizations, are mobilizing support for Watada's legal and moral arguments against the war. They believe his case offers a historic opportunity to challenge and end the illegal war and occupation of Iraq. On June 27, the day Watada's unit shipped to Iraq without him, demonstrations took place in more than thirty cities. Now supporters are launching a campaign to educate the public on his stand. They hope to organize a major event to coincide with his court-martial, which is expected in October. In the context of plummeting support for the war and cascading evidence of officially concealed criminal acts by US forces, such an event has the potential to focus public attention on possible US war crimes, just as the Winter Soldier Investigation did during the Vietnam War.
Under military law, soldiers have the right to refuse to carry out illegal orders; in fact, they have a duty not to commit war crimes. According to Article 32 of the Uniform Code of Military Justice, Watada retains the right to a preliminary hearing to "present anything he may desire in his own behalf, either in defense or mitigation." Under Article 46 defendants are allowed at trial to "compel witnesses to appear and testify and to compel the production of other evidence."
On its face the statute appears to allow a war crimes defense. In practice, however, defenses under international law are often denied, based on the military's "fundamental necessity for obedience," a principle affirmed by the Supreme Court in 1974. (Watada maintains he owes obedience to the Constitution--not to officials who are abusing it.)
There are precedents for raising war crimes issues in courts martial. Howard Levy was given a day to present a war crimes defense in 1967. He called three witnesses and provided 4,000 exhibits describing war crimes in Vietnam, but he was ultimately found guilty and sentenced to three years in prison. When Petty Officer Pablo Paredes was court-martialed for refusing to go to Iraq, he was allowed to call an expert witness to make the case that the war was illegal. The military judge who found him guilty gave him a mild sentence with no jail time and astonishingly declared, "Any seaman recruit has a reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."
Anyone who believes in justice should demand that Watada's court-martial provide him reasonable opportunity to prove the case for US war crimes in Iraq, including the right to subpoena witnesses and government documents. Without such rights, the court-martial will be nothing but a kangaroo court, violating the very national and international norms the Hamdan decision requires the government to respect. The many retired military officers and government officials who have questioned the legality of Bush Administration policies regarding torture and other criminal acts should feel a personal responsibility to lend their support to this officer's courageous defense of national and international law.
When Ehren Watada refused to deploy to Iraq, he struck a blow against the Iraq War. Bolstered by Hamdan v. Rumsfeld, his case could become a focal point in the effort to restore the rule of law in America, rein in executive power and spark a popular movement to end an unjust and illegal war.
Keith...I have been involved since 2000, informing myself, talking to others, calling congress and doing what I can. I called during the judical confirmation hearings of Roberts and Alito. I'm doing what I can. I am getting tired. Seriously, does Bush need to declare martial law and void the constitution before the Dems do something serious? My god, every day new revalations of Bush's blatant lawbreaking and the compliant Republican response and the have not shut down congress yet? What more is actually going to happen to spur the dems into action? What more do they need? Bush is at 30%! Most rational people and experts agree that he is breaking the law! Something should have hapened long ago.
ReplyDeleteI did that for shock value. I also said "people like you" and not you personally, and included myself. You are doing what you can. I understand your "political comabt fatique". Don't look to the majority of current incumbent Democrats to solve our problems. You need to be patient and understand these matter grind themselves out very slowly. Very rapid changes, like the fall of Saddam... you see my point? If you think it's bad here, would you want to be in Iraq? I can post some bits from e-mails from my friends over there, civilian and military. Take a deep breath, sit back and relax. It's Sunday. Tomorrow, get up and go back to work doing what we are all doing in our own ways. Try to get those who are not yet involved to become involved. Nothing is going to happen overnight, and if it did, it could even be uglier. I doubt that will happen. No one wants that. Bad for business. There is no reason to give up. We are actually making progress. Most of my friends went to Iraq staunch conservatives. They having to re-examine their views now. That's one positive effect of this damn war. Give it time.
From shooter242 at 7:07pm:
ReplyDeleteOh, I get it. It's not that you folks are against eavesdropping, it's that you want to make it so difficult to do that it isn't feasible.
"Isn't feasible"? Upon what exactly do you base such a novel assertion?
Hmmm. That's why Moussaoui's laptop remained closed and the "flying lessons to nowhere" info was squelched. 9/11 and all that.
I believe it was you, on more than one occasion, who pointed out that evidence wasn't viewed with greater speed and dispatch due to the bureaucratic inertia within the FBI, not due to any inadequacy with FISA.
And here I was thinking that you wanted to make the WOT more efficient. Silly me. I guess you ARE soft on terrorists after all.
Says the one hiding under his bed across the river. Do keep in mind which of us was and is under greater hazard, both on 9/11 (when I would have been in the Twin Towers myself that morning) and since, before accusing anyone of being "soft".
But then you ARE a desperate partisan apologist for a failed President pursuing a failed policy.
JaO writes:My own opinion is that it is even more of a stretch to contend that the AUMF trumps FISA, for two reasons: 1) FISA is much more clear in its sphere than the UCMJ is in the field of military commissions; 2) domestic surveillance of U.S. citizens is even further removed from the facts and holding in Hamdi precedent (concering detention of prisoners seized in a foreign theater of war) than are the facts and holding of Hamdan (concerning trial of such prisoners).
ReplyDeleteI agree w/ that, as well as with all else that JaO stated on the matter of how Hamdan will be "handled" by the OLC and the Bush DoJ. Who is going to "make them" abide by the clear implications of Hamdan? The Bush Administration made sure that the arm of the DoJ that is supposed to ensure its lawyers act ethically and within the law -- The Office of Professional Responsibility -- has been denied a security clearance to probe whether the NSA and its lawyers are complying with the law. Neat trick, that.
So, to further riff on JaO, who's gonna make Bush do anything different, just because of Hamdan? Congress?
I'm not one of the "nattering nabobs of negativity" on this whole NSA scandal issue, and I do observe enormous progress, but I just don't foresee a post-Hamdan Road-to-Damascus like change of behavior in the DoJ/NSA. There is no one presently situated to enforce the law, or discipline lawyers who act outside of it, and Hamdan doesn't change that.
But I'd certainly like to be persuaded that the DoJ attorneys who sign off on these every-45-day approvals should now be fearful of repercussions if they continue to do so, but I don't see from whence such repercussions would come?
Yankeependragon to shooter... Says the one hiding under his bed across the river. Do keep in mind which of us was and is under greater hazard, both on 9/11 (when I would have been in the Twin Towers myself that morning) and since, before accusing anyone of being "soft".
ReplyDeleteBut then you ARE a desperate partisan apologist for a failed President pursuing a failed policy.
I was born in NYC. I have family there. I have friends over in Iraq, but in Shooter's deluded mind Yankee and I want the "terrists" to win and hit us again. My problem is a bit different than Keith's, but I understand his angst. I'm suffering from the "political combat fatigue" of fighting a two front war with the "terrists" abroad and the "alarmists" at home who both hate us saner people for "our freedoms". The truth is that it's only the alarmists at home that hate us, and themselves, for our freedoms. I commend you, Yankee, but I wonder why you bother with shooter.
But I'd certainly like to be persuaded that the DoJ attorneys who sign off on these every-45-day approvals should now be fearful of repercussions if they continue to do so, but I don't see from whence such repercussions would come?
ReplyDeleteYou and Jao are undoubtedly right that Hamdan hardly means that the NSA program ends. But A.L. makes an excellent point. Numerous reports indicated that the highest-level DoJ lawyers - not career types but highly conservative political appointees, including even Ashcroft -- were unwilling to sign off on the legality of the NSA program in 2004. It was because of that reluctance that the AUMF argument (which never previously existed) was developed - at least that gave them an argument that the statute was NOT being violated (as opposed to the only argument they had before - that it was being violated but the President has the constitutional right to violate it).
As I've indicated before, a lawyer in the wake of Hamdan could probably argue in good faith (barely) that the Yoo theory survives to justify the NSA program, but I really don't see how it could be argued that the AUMF argument (as applied to FISA) survives Hamdan. Thus, it is not that hard to see - given the career motivations outlined by A.L. in his Comment here - that they are now back in the world (the one they were in pre-AUMF) where DoJ lawyers are highly uncomfortable signing off.
As A.L. said, most DoJ lawyers see themselves as lawyers with legal careers ahead of them, not as politicians, and they therefore think more like lawyers and are likely to have a lawyer's caution/reluctance to sign off on an argument that has just been rendered frivolous by a lankmark decision of the U.S. Supreme Court.
Anony....When Ehren Watada refused to deploy to Iraq, he struck a blow against the Iraq War. Bolstered by Hamdan v. Rumsfeld, his case could become a focal point in the effort to restore the rule of law in America, rein in executive power and spark a popular movement to end an unjust and illegal war.
ReplyDeleteYou will see alot more of this. Not so much fragging, as Ann Coulter suggested, and not of the Jack Murtha's. There aren't that many left in the command structure that don't know this is all a giant clusterfuck. There is a reason Bart won't re-up. He'd get fragged in a week. Shooter couldn't last a week in basic.
Fragging and combat refusals in Vietnam
ReplyDeleteAs I said, there won't be much of this in Iraq. No need. As of now, only the Marines are active in the west. Everyone else is hunkered down except for specific ops based on precise intel. Most of them know this war was lost in 2004. Odd that you don't hear this from most pols and pundits alike. Just "another six months" every six months. The check's in the mail, too. Care to add anything, Bart? I'm sure you get daily CentCom briefings, right?
Glenn:
ReplyDeleteTo arrive at its decision, the Court emphatically rejected the administration’s radical theories of executive power, and in doing so, rendered entirely discredited the administration’s only defenses for eavesdropping on Americans without the warrants required by law...Despite its length (42 single-spaced pages), the Justice Department advanced only two arguments to justify the President’s law-breaking — (1) that Congress implicitly authorized the President to eavesdrop in violation of FISA when it enacted a resolution in September, 2001 authorizing the use of military force in Afghanistan and against Al Qaeda; and (2) that the President is constitutionally empowered to act as the "sole organ" with regard to national security, and nothing — not the Congress, nor the courts, nor the law — can limit or regulate those powers.
Let's stop here for a moment and correct this misrepresentation of the DOJ arguments.
The DOJ white paper never anything like "the President is constitutionally empowered to act as the "sole organ" with regard to national security, and nothing — not the Congress, nor the courts, nor the law — can limit or regulate those powers."
You know this and you intentionally misrepresented the argument anyway.
The two arguments made by Justice in their own words are:
I. THE PRESIDENT HAS INHERENT CONSTITUTIONAL AUTHORITY TO ORDER WARRANTLESS FOREIGN INTELLIGENCE SURVEILLANCE
II. THE AUMF CONFIRMS AND SUPPLEMENTS THE PRESIDENT’S INHERENT POWER TO USE WARRANTLESS SURVEILLANCE AGAINST THE ENEMY IN THE CURRENT ARMED CONFLICT
Moreover, Justice did not coin the term "sole organ" for this particular President. Rather the DOJ paper noted: "As the Supreme Court has explained, “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319 (1936)."
Glenn continues: Both of these defenses — the only ones which the adminstration has to justify the President’s violations of FISA — were decimated by the Supreme Court in Hamdan — argument (1) so clearly rejected that no lawyer could continue to advocate it in good faith, and argument (2) almost certainly as discredited.
Wow, strong stuff. I then scrolled through the last half dozen paragraphs in your C&L post and AL's post and could not find a single quote from the Hamden opinion backing up your claims.
Care to provide us with the actual words of the Court which support this claim?
To make your job easier, I agree that the Hamden majority made the AUMF argument much more difficult to make. You can skip that.
Let us concentrate instead on what parts of the Hamden opinion you claim make the DOJ arguments concerning FISA and Article II untenable.
If you even bother to provide the applicable sections of the Hamden opinion, try to make an actual legal argument supporting your point. I have read the applicable provisions of the decision concerning the application of the Youngstown decision to the UCMJ and they are so easily distinguished from FISA that a first year law student could do it.
Give it your best shot...if you have the guts to answer yet another of my challenges to back up your polemics with law.
I figure you won't.
"Fair game."
ReplyDeleteHm. I've heard that before.
First, guess the quote. Seriously, try to guess before you look it up.
Such people should be taken from the society as rapidly as possible and uniformly institutionalized; for here is the level of the contagion of immorality, and the destruction of ethics; here is the fodder which secret police organizations use for their filthy operations. One of the most effective measures of security that a nation threatened by war could take would be rounding up and placing in a cantonment, away from society, any [such] individual who might be connected with government, the military, or essential industry; since here are people who, regardless of any record of their family's loyalty, are potential traitors, the very mode of operation of their insanity being betrayal. In this level is the slime of society, the sex criminals, the political subversives, the people whose apparently rational activities are yet but the devious writhings of secret hate.
Then see here for the answer.
For those ever-hopeful Bush apologists like, oh, Bart, who think the Article II theory of Executive power remains robust, here is Orin Kerr (who clerked for Kennedy) on how Kennedy addresses that argument in Hamdan.
ReplyDeleteKerr also finds Kennedy sending a negative message about the Administration's theories of Executive power -- which Kerr speculates could be read to speak to matters like the NSA warrantless surveillance program -- in the Oregon assisted-suicide case.
No one should be surprised to hear such militant talk from Horowitz. He announced his intentions to do such to the Republican party back In The art of Political War:
ReplyDeleteYou cannot cripple an opponent by outwitting him in a political debate. You can do it only by following Lenin's injunction: "In political conflicts, the goal is not to refute your opponent's argument, but to wipe him from the face of the earth."
I haven't read the book, so I have no idea what the context is around taht quote, however.
Humes Ghost: I guessed the source correctly, and actually was about to do my own google on Hubbard, Scientology and their vicious doctrine of "fair game," which Horowitz's use of the term brought to my mind (as it also did for you; GMTA). Scientologists have destroyed many people by declaring them to be "fair game" and attacking them in breathtakingly evil (and sometimes illegal) fashions. Ironically, their "fair game" doctrine has been most aggressively employed to try to destroy journalists who write critically about their church. (Scroll down a bit on that last one.)
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteI’m not sure if anyone has mentioned this, but one thing I found fascinating about spittle-flecked-out-of-control Horowitz is the words he uses to describe nothing more than “criticism” of Bush policies – invariably they take on a military “war-like” connotation.
ReplyDeleteDisagreement with Bush, becomes “an assault” against the U.S. and “a critique” becomes “guerilla war” against the country. These sort of terms are an attempt to de-legitimize the freedom to speak out against this administration, implying that those who do so are “at war” against us – hence they are “the enemy” that we are fighting against.
When you hear this deranged creature use words of violence and war to describe “the left” as our enemy, it is not to hard to imagine what might happen to those he considers “fair game.”
Yes,
ReplyDeleteThat is true. At one time no journalist would say a bad word CoS for fear of finding a poisonous snake in his or her mailbox. Synanon pulled that too, if I'm not mistaken. Cults. On the bright side, those days seem to be over. Everyone ridicules Tom Cruise and writes hit pieces about CoS and Hubbard today. Let's hope the press follows the same arc with Horowitz' and Malkin's flying monkey hit squads.
I find it interesting that if the Detainee Act of 2005 was the Detainee Act of 2001 the whole
ReplyDeleteHamdan case would never have happened.
Going forward, how will the Detainee Act affect lawsuits involving Gitmo prisoners?
Glenn, could you tell me why when confronting people like Horowitz, why nobody every brings up Novak's exposure of a CIA agent working on WMD? I would LOVE to see how they rationalize that.
ReplyDeleteOops I wrote too soon. Novak was brought up I just hadn't listened that far.
ReplyDeleteAs I expected, just total denial of the facts ensued.
Glenn, War and Piece is reporting more on Hoekstra's issue with the WH. W&P thinks something's in the air.
ReplyDeleteW&P comments on Hoekstra's Fox News appearance:
But what is the "major" "significant" intelligence activity that Hoekstra says he has learned about from whistleblowers, not from the White House? Under what authority was the head of the House intelligence committee not briefed of a major intelligence activity undertaken by the administration? And where are Hoekstra's Senate intel committee counterparts? Jane Harman? Were they briefed? And why is Hoekstra making sure his concerns are coming to light now in the Post, the NYT and Fox? Is something about to break?
Fixed Link Intro
Well Bart you have lost all credibility with this last statement:
ReplyDeleteLet's stop here for a moment and correct this misrepresentation of the DOJ arguments.
The DOJ white paper never anything like "the President is constitutionally empowered to act as the "sole organ" with regard to national security, and nothing — not the Congress, nor the courts, nor the law — can limit or regulate those powers."
You know this and you intentionally misrepresented the argument anyway.
ON THE SECOND PAGE OF THE WHITE PAPER IT SAYS THIS:
The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility. The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States. (Page two of this document) (This pdf. Is found at http://www.fas.org/irp/nsa/doj011906
I believe it says the president is the SOLE ORGAN for the naiton in forgien affiars.
You accuse Glenn of misrepresentation at the same time that you are clearly mistating what the white paper says. AS IT'S OPENING ARGUMENT.
You disgust me.
Horowitz lost control of his emotions very early on -- literally. As a result, he was unable to speak coherently or even stop speaking at all -- both when it was his turn and mine, and his contributions were typically composed of screaming "LIAR!" and "LEFTIST!" over and over with a shriek so hysterical it has to be heard to be believed.
ReplyDeleteToo funny. What a great description! Completely accurate but still, one can't keep from laughing when Glenn puts it like that...
Yup, someone was off his meds alright.
I was reminded of how bullies act when they know they are up against a strong, rational, formidable opponent. The usual tactics they use when confronting weak, intimidated opponents just don't work so they dissolve into hysterical temper tantrums and land up just providing grist for the humor mill.
Reminds me of the line from the poem "If":
IF you can keep your head when all about you
Are losing theirs and blaming it on you...
Chalk one up for Glenn. I'll have to listen to it a few more times. I love that kind of humor.
Actually, Glenn's on a roll:
Do you want to try to explain this to him first?
Glenn: Actually, no - I would feel very bad depriving you of the great privilege.
Professor Sunstein is making an assumption for the opposing AUMF argument which cannot be sustained. Sunstein opined at his post:
ReplyDeleteThere's a plausible argument that FISA (i) overcomes the AUMF, because it's more specific and (ii) is constitutional, because it doesn't intrude on any authority that the President has under Article II.
I posted the following in response:
The second plank of this argument fails.
The Courts have unanimously held to date that the President pursuant to multiple provisions of Article II has the general constitutional authority to conduct warrantless surveillance for the primary purpose of intelligence gathering against foreign powers and their agents in the United States. The NSA Program as reported falls under this power.
If FISA applies to the NSA Program and requires warrants to conduct surveillance, then this is a clear limitation or elimination of the President's Article II power.
The Hamdan decision (like the prior Youngstown decision cited by Kennedy) involved a balancing test where Congress had a specific Article I power which conflicted with the President's general Article II power over the military and foreign policy. In such cases, the Congress prevails when it legislates in the area of conflict.
In Hamdan, the Steven's opinion listed multiple express provisions of Article I which allowed Congress to legislate in the area of the treatment of Captures. The Congress used those powers to enact the UCMJ and its articles applying to military commissions. These express Article I provisions trump the President's general power to create military commissions and establish their procedures.
However, there is no Article I provision which expressly empowers Congress to direct or conduct intelligence gathering and therefore no provision which would authorize Congress to enact FISA to limit or eliminate the President's Article II power to conduct warrantless intelligence gathering.
In short, we do not even have to arrive at an analysis of whether the AUMF amends FISA because FISA may not constitutionally limit the President's Article II authority over intelligence gathering.
Reminds me of a guy I know that maintained 100 email address and identities at his Web -- wanted to create the impression that there were LOTS of people that made his site important.
ReplyDeleteJust like this faux "advertise liberally" circle of links.
"are we going to hear about the latest effort from another lefty academic gone wild, or will it be swept under the rug?"
ReplyDeleteWho the heck is Deb Fisch?
I mean, ok, by now I've found out, but honestly - nobody knew who she was. What she apparently said (I add 'apparently' only because of the whole DOS attacks situation) is gross and entirely inappropriate. No argument there. But you've gotta admit, internet/influence-wise, she's a very tiny face in a very bog crowd. Nobody supports her, nobody excuses her. As Glenn points out, this is pretty much always the case with the literal handful of lefty nutjobs the right's managed to dredge up. With the exception of Churchill, who actually had tenure, they're unknown adjunct professors (for people who don't know, that's a position not too far from being an academic temp worker) with a teeny blog that almost nobody links to - or something similar. The contrast is very interesting.
And y'know any denial of this contrast is, in a way, kinda like the whole situation with the folks who insisted they couldn't see any difference between an article mentioning the location of the VP and SecDef's vacation homes - which have excellent security, and are easily available public knowledge, yadda yadda yadda - and putting the poor photographer's personal contact info online. On one side we have countless influential figures approving, spreading, and contributing to this sort of crap (and much more beyond), and on the other some nobody nobody's heard of. But of course it's all entirely equivalent.
Here's Barbara on this subject.
Shooter... Apparently it has escalated to threatening children. No matter what idiocy the right can come up with, the left always excels at excess.
ReplyDeleteI had never heard of D. Frisch before this and I am pretty familiar with the left blogosphere. I have read her comments and they are not threats, quite disgusting and bizarre, but not threats. Perhaps if Goldstein hadn't threatened Thersites and NYMary and their child first, and then outed them to the whole world, his Karma would be cleaner. The response to that affair from the right was "muted". I do not condone D. Frisch's behavior but what goes around comes around. I feel sorry for NYMary and Thersites and their child. I feel Jeff's wife and kid. I even feel some pity for D. Frisch. But Goldstein is no one to point the accusatory finger at anyone. I have no pity for him whatsoever. He brings this on himself and laughs all the way to the bank while the flock on the right gather and cluck like chickens in a barnyard.
shooter242 is clueless as ever:
ReplyDeleteI believe that Glenn and his fellows are on record as in favor of eavesdropping, while also being on record against it.... at least as a matter of law.
Glenn has said that FISA provides the tools to eavesdrop ... and to do so legally. He has no problem with legal eavesdropping.
Being in favor of eavesdropping would require working to change the law to conform to Hamdan.
Huh? How about just getting a freakin' warrant. It's not like these applications get turned down....
Cheers,
More bloviating from HWSNBN:
ReplyDeleteIf you even bother to provide the applicable sections of the Hamden opinion, try to make an actual legal argument supporting your point. I have read the applicable provisions of the decision concerning the application of the Youngstown decision to the UCMJ and they are so easily distinguished from FISA that a first year law student could do it....
Yet, in true form, while asking for Glennt to provide a legal argument, HWSNBN doesn't even do what a 1L could do. And a word of warning: HWSNBN's cites (when he allegedly provides such) are so rotten you have to check each and every one of them not only to make sure that they say what he claims they say, but furthermore that they even exist....
Cheers,
Lord knows the Democrats aren't perfect (I'm one, so how could they be?), but really, how can anybody blame the party that has no institutional control whatsoever in Washington for not aving hearings? Even when Democrats argue for hearings, they have a hard time getting any coverage in the press about it at all; once, a few months ago, when the Democrats held their own hearing on Iraq (at least as nearly as I recall, it was Iraq), there was a big story in the Washington Post that mocked them for trying to do anything about it.
ReplyDeleteNo, the blame for what's happening in this country falls more squarely on the Republican party, which brought us one catastrophic screwup after another, and the press, which has rolled over obiediently whenever the administration asked it to for the last 5 or 6 years.
Yes, yes, the Democrats could be better. But now, in 2006, we have the best shot in 12 years of taking back Congress, and we should, I believe, rally behind the Democratic party with all our strength. If we do win in the fall, we'll have to ride herd on Congressional Democrats to be feisty, combative and stubborn in unearthing all that's gone wrong since 2000. If they try to wimp out, we'll have every duty to jump all over them. But let's not start that now. The Republicans have put us all in this mess; let's keep pounding them for now, not the Democrats.
Just to keep the record straight, Sunstein is well known as a "liberal" law professor.
ReplyDeleteBy whom? The same people who "know" that Fox is a serious news channel?
“As I have already observed, the left has become so intellectually lazy from years of talking to itself (and “at” everyone else) that it has lost the ability to conduct an intellectual argument with its opponents.” – David Horowitz (about Michael Berube, one of his 101 Most Dangerous Academics in America)
ReplyDeleteThere is either good money in being a wingnut, or something is really seriously wrong with Da Ho.
“I found all that information in about 5 minutes of research”
ReplyDelete“One of the things it's (America's) about is a free press.”
-Greenwald
“paranoid projection and distortion by a leftist”
“thanks to the left and people like Greenwald”
-Da Ho
You know, I listened to your show with Horowitz and I have mixed feelings about it: at its most obvious, it's just funny. The guy is just all kinds of sad. I sure as hell hope he isn't married because I don't want to have to think about the excuse for a life his poor wife would be leading.
ReplyDeleteBut in a wider way, it isn't funny at all, it's horrifying. It's horrifying because Horowitz and those like him (Limbaugh, Coulter, Malkin, Hannity, Bush, Cheney, DeLay, free republic, powertools, Santorum--the list goes on, all the way down to the bottom, where you find quasi-nobodies like Michael Barone and John Leo, and real nobodies, like the Poor Man's favorite Kaye Grogan) just flat out make shit up. (I think some of our less illustrious commenters here, like Bart, Shooter and The Major just don't know any better and believe what they spew; that might even apply to some of the bottom dwellers from the list above, too, like Grogan.) I mean, they'll look at somebody's yard and tell you the grass is pink; they'll look at Iraq and tell you the biggest problem we have over there is that the press and we liberals aren't cheering loudly enough back here.
These people are good at lying; they've learned to make a living at lying, and they've built a powerful political machine on lying.
That's all they really have, when you get to it, the lying.
But they're awfully good at it. They don't even care when they get caught in a lie; they'll lie right to your face. Because they don't care. They know that while you might know they're lying or I might know they're lying, a lot of the, shall we say, less sophisticated among their readers or listeners either won't know any better, or very well might not even care.
And that's what makes them so dangerous: because most normal, unbiased people, when they hear or read 2 people claiming 2 such diametrically opposed things as you and Horowitz did, will behave normally, that is, they'll mull over both claims, and most likely decide that--all things being equal and both speakers or writers are faily sane--the truth lies somewhere in between. You (and the truth) were lucky because Horowitz just lost it, and showed himself up as the loser nutball that he is, but we can't count on that happening often. These people are professional liars, after all, and they're good at it.
Have you given any thought to how to best these people at their game, even when they don't start frothing at the mouth and give themselves away? I humbly suggest that as a topic for you to mull over and write a post about...
BART said:
ReplyDeleteThe DOJ white paper never anything like "the President is constitutionally empowered to act as the "sole organ" with regard to national security, and nothing — not the Congress, nor the courts, nor the law — can limit or regulate those powers."
And at the end of your post you challenged Glenn:
"Give it your best shot...if you have the guts to answer yet another of my challenges to back up your polemics with law.
I figure you won't."
"Politically Lost" pointed out that the
second page of the White Paper states:
"The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility. The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States. (Page two of this document) (This pdf. Is found at http://www.fas.org/irp/nsa/doj011906"
Perhaps you weren't given the chance to respond? Care to explain your definition of the the word "never"? (Ironically you left out the word "said" but your meaning is clear). I figure you won't.
"Huh? How about just getting a freakin' warrant. It's not like these applications get turned down...."
ReplyDeleteIs this some kind of joke? The administration had to go to court to get the FISA judges to stop turning down the warrants.
Where do you think Re: In Sealed Case came from?
The whole system is archaic and possible unconstitutional since the judicial branch has higher authority than the executive branch to monitor foreign surveillance.
A monitoring system needs to be in place that does not involve warrants.
Anonymous said...
ReplyDeleteI love how you selectively pick your laws.
. . . .
There are laws that the NY Times broke in outing the SWIFT banking anti-terrorist programs.
Which laws, O brave anonymous freeper? Outside own your head, I mean. Lay them out so we can "selectively pick."
Back in March of 2006 from the Wash Post:
The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order."
6:30 PM
I've been reading this blog for about 3 months and posting for about 1. I am no lawyer. But even I can see the flaw here.
NO ONE IS ARGUING THAT THE PRESIDENT DOES NOT HAVE THE POWER AND CONSTITUTIONAL AUTHORITY TO SPY ON SUSPECTED INTERNATIONAL AGENTS.
Like your buddies, you have mastered the art of pretending to miss the point. Well done! You get a gold straw man to take home and stick to your fridge.
Shooter 242: "In the end balance is everything"
ReplyDeleteI think that's the point.
"Excuse me, but this was not "every" comment . . . Blowing this off is pretty partisan."
Besides Fisch not being by any stretch of the imagination even a mildly influential figure in the left blogsphere, let alone wider media or politics, one could also point out that she doesn't appear to be either an accurate representation or a creature of the left - her actions don't seem connected to either her politics or her (presumed) political community.
Everyone on the left discussing this matter would appear to be pretty clearly condemning her; especially given recent events, some pot/kettle commentary seems quite legitimate.
_________________
'Hamdan a powegrab that doesn't really mean anything' spin hitting the letter columns
-Dan S.
jao said
ReplyDelete"I don't think this constitutional issue will be settled until there is a case that forces the court to decide the question head-on -- and Bush's entire legal strategy is never to go there."
There is little wonder why Bush will never go there when you read UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)
"These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive [407 U.S. 297, 317] ﾊ Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."
Justice Powell also wrote:
"History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security.""
Which is what Horowitz and his ilk are all about, under the guise of "security" they try to squash dissent against their president.
Horowitz lost control of his emotions very early on -- literally.
ReplyDeleteHonestly, what do you expect from the right?
.
Speaking of idiosyncratic views, to understand EWO's better, use a Kaleidoscope while looking in a mirror.
ReplyDeletegrandmoff: Honestly, what do you expect from the right
ReplyDeleteWhat we expect is responsible and reflective response to crises that threaten the country. What we get is less noble and certainly more irresponsible.
The fact that they're emotional is okay as long as those emotions are put to resposnible use. What we find the Right exhibiting and trying to exploit is an irresponsible use of emotion.
bart said
ReplyDeleteThe two arguments made by Justice in their own words are:
I. THE PRESIDENT HAS INHERENT CONSTITUTIONAL AUTHORITY TO ORDER WARRANTLESS FOREIGN INTELLIGENCE SURVEILLANCE
II. THE AUMF CONFIRMS AND SUPPLEMENTS THE PRESIDENT’S INHERENT POWER TO USE WARRANTLESS SURVEILLANCE AGAINST THE ENEMY IN THE CURRENT ARMED CONFLICT
Now Bart's doing it! Listen closely, and you can hear the drum that keeps in order Bart, Shooter, Anonymous, and all the others who have drawn the assignment of distracting commenters on this blog.
George Lakoff is right. (See his latest book.) Those who oppose the march of fascism in this country should put less emphasis on facts (although yankeependragon's efforts in this area are invaluable) and more on rhetoric. We just need to figure out how to do this.
My best guess is that we need to be less logical in our response (leave that to the lawyers) and more emotional. It gets a response in return. The onlyreaction I've gotten to date was when I stated that I will be willing to kill fellow Americans in defense of my constitutional freedoms.
Such people are traitors who would steal our heritage, our voices, our culture. They would destroy what our parents left us and effectively remove the rights that I was born with—that we all were born with. Their sole motivations are greed and fear, and, cynically, place no value on anything we hold dear. They are the new barbarians.
baldie eagle: Those who oppose the march of fascism in this country should put less emphasis on facts (although yankeependragon's efforts in this area are invaluable) and more on rhetoric. We just need to figure out how to do this.
ReplyDeleteI agree with some of this, although your separation of reason and emotion leaves me a bit quizzical. Facts are facts but their interpretation often diverges in numerous ways. The problem is that those who wish to manipulate facts for their own gain or agenda refuse to engage in reasonable discussion about how to best interpret those facts.
Glenn's confrontation with the Right pertaining to their fast and loose use of facts is a start. This shows the good forensic lawyer that he is. But forensics deal with the past, not the way forward. That involves political will and legislation. After establishing the facts to everyone's reasonable expectation, we then need to responsibly address the issues of how to move forward.
At this juncture, it seems, many on Left and Right are simply unwilling to agree that interpretation of the facts can indeed involve varying degrees of interpretation. It's my way or the highway, as they say. Those who engage in political discussion must be willing to overcome their own preconceptions and assumptions so that a modicum of reasoned debate can take place.
With the questions about the fate of the country, its security, and its defense it's reasonable to expect the sides to explore extreme positions. But to maintain those extreme positions when advocating democratic processes seems foolhardy and counter-productive.
jao said...
ReplyDeletebart: In short, we do not even have to arrive at an analysis of whether the AUMF amends FISA because FISA may not constitutionally limit the President's Article II authority over intelligence gathering.
That part of your analysis is exactly backwards. A judge would consider the statutory question first, and take up the constitutional question only if it still obtained after the statutory issue was determined. (That is the method Thomas correctly applied in Hamdan, and the method Alito said he would apply to an examination of FISA.)
That depends on what the judge is attempting to achieve.
The base issue is always whether the statute is constitutional. Therefore, this is the logical place to start in a legal analysis.
However, if the Court is seeking to preserve the statute if at all possible by avoiding the constitutional question (doctrine of constitutional avoidance), then it may visit the AUMF question first. This is Justice's position because it uses FISA continuously and does not want an overzealous Court shutting down the entire system.
Also, conservatives like Alito and Thomas always seek to narrow their decisions as much as possible and prefer to let the democratic branches sort out balance of powers issues. Therefore, if the AUMF provides an easy out for this question, a conservative judge can avoid entering the balance of powers constitutional thicket.
However, I am not a judge and can take any approach I please. I never thought much of the AUMF waiver argument and believe that the Court should reestablish the limits of congressional power which were lost when the Supremes gutted the commerce clause to allow the New Deal.
In the context of the Youngstown framework, one must analyze the statutes first to determine which of Justice Jackson's three categories applies.
Since we apparently are in Youngstown Category 3 -- you concede that the AUMF argument fails and the NSA program violates FISA on its face -- the program is legal if and only if FISA is unconstitutional because Congress lacked authority to enact it.
I disagree. You cannot even start the Jackson balancing test until you have a situation where Congress is acting pursuant to its Article I powers.
Youngstown is predicted on Congress acting constitutionally pursuant to its power to regulate government land seizures.
In the Hamden case, the first point made by the portion of the Steven's opinion joined by Kennedy was to quote the multiple provisions of Article I which expressly grant Congress the power to establish rules for the treatment of Captures.
However, in the case of FISA, Congress has no Article I power to direct or conduct intelligence gathering. Therefore, we do not even get to the Jackson balancing test because there is no Article I power to balance with the President's recognized Article II powers over warrantless intelligence gathering.
But you clearly are wrong in asserting that Congress lacked that authority, for reasons we have covered here many, many times.
My challenge still stands for anyone to offer an Article I provision which refers to intelligence gathering or a court case which interprets an Article I provision to allow Congress to regulate intelligence gathering.
The best anyone has been able to come up with is an argument that a future court may rewrite the provision allowing Congress to regulate the conduct of the Army and Navy to also include directing intelligence gathering.
From shoot242 at 1:34am:
ReplyDeleteIn the end balance is everything.
Again, something we agree upon.
If you are in favor of more restrictions on oversight just say so, without hiding behind legal language and threats of prosecution. It's a matter of politics, not legalities.
If you are in favor of turning the country into lawless fascism, please just say so without hiding behind irrelevant arguments (the Gorelick memo btw didn't create this metaphorical "wall" and was concerned primarily about preventing abuse of FISA) or shadowy threats better left fiction.
I think we both agree government oversight is needed over its surveillance activities; I simply want the Administration to follow the letter of the law (or have it amended when circumstances, not partisan interests, require) in doing so and for Congress to be allowed to exercise proper oversight.
Fair enough?
From Bart at 12:30pm:
ReplyDeleteHowever, in the case of FISA, Congress has no Article I power to direct or conduct intelligence gathering.
Once more unto the breach:
In present circumstances, Congress has the authority to regulate the activities of the NSA under Article I.8.14.
Yes, it has previously limited its exercise of the authority that clause grants to formulating the UCMJ. Nevertheless, the authority is still there, and Congress still has the Constitutional authority to impose whatever regulations or limitations it sees fit or proper upon the branches of the armed forces; the fact they have not do so to date is immaterial.
You can argue Article I.8.14 applies only to the "uniformed" members of the Armed Forces; the clause itself makes no such distinction, and so Congress would still be within its rights to close down the NSA program under discussion by simply passing a statute to that effect.
Like it or not, Bart, anything the NSA does (as it is a branch of the US Army and falls under the aegis of the Defense Department) is subject to Congressional regulation as granted by Article I.8.14, be it "intelligence gathering" (either HUMIT or SIGNET or ELNET) or some other activity. The clause makes no distinction and imposes no limitation on Congress in this respect.
Simple enough?
jao posted at the Balkanization blog: But you clearly are wrong in asserting that Congress lacked that authority. You misstate what FISA does as a congressional attempt to "direct or conduct intelligence gathering." Rather, Congress acted generally to regulate surveillance of citizens' communications under the Intersate and Foreign Commerece clause, by the goverment or anyone else. Like the rest of the U.S. criminal code, this is authorized by the Necessary and Proper Clause, and to the extent such regulation impinges on military operations, it also is authorized under the Rules and Regulation clause.
ReplyDelete1) Commerce Clause: Congress never claimed FISA was enacted pursuant to the Commerce Clause. This is not surprising because it is difficult to see how secret surveillance which in no way affects the communications at issue somehow affects commerce. The Commerce Clause has been stretched beyond all recognition since the New Deal Court, but I do not see how it stretches that far.
2) Regulation of the Army and Navy: This provision is limited to regulation of the individual good order and discipline of the uniformed services and has never been interpreted to allow Congress to assume the power of regulating the direction of intelligence gathering.
3) Necessary and Proper Clause: The Necessary and Proper Clause does not create a substantive power allowing Congress to enact any legislation it feels necessary and proper. Rather, this is an enabling provision which allows Congress to enact legislation to perform the various powers described in the Constitution. For example, Congress arguably used the Necessary and Proper Clause to create the NSA so that the President could exercise his intelligence gathering powers. However, Article I does not provide Congress the power to direct and conduct intelligence gathering. Therefore, the Necessary and Proper Clause cannot enable the exercise of such a power by Congress.
Shooter 242 is a rather sad individual, posting inflammation that is not advancing any position, but rather is sniping at something with irrelevancies, and then proclaiming victory through denigrating statements caboosed by such phrases as "tsk" and "LOL."
ReplyDeleteI find it surprising that anyone takes him/her seriously and responds substantively to his/her posts. Any person with a modicum of intellect can see that Shooter 242 is a troller, and a rather unclever hamfisted one at that.
I'm sure Shooter 242 will have another equally insispid remark as a "response" this post.
yankeependragon said...
ReplyDeleteIn present circumstances, Congress has the authority to regulate the activities of the NSA under Article I.8.14.
As always, let's start with the text:
The Congress shall have Power...To make Rules for the Government and Regulation of the land and naval Forces...
Yes, it has previously limited its exercise of the authority that clause grants to formulating the UCMJ. Nevertheless, the authority is still there, and Congress still has the Constitutional authority to impose whatever regulations or limitations it sees fit or proper upon the branches of the armed forces; the fact they have not do so to date is immaterial.
The text of the provision only speaks of making "Rules for the Government and Regulation." The plain meaning of this text and how the courts have interpreted it is that Congress has the power to set rules for the individual good order and discipline of the military. There is nothing here about directing or limiting the direction of military intelligence.
You can argue Article I.8.14 applies only to the "uniformed" members of the Armed Forces; the clause itself makes no such distinction...
The provision by its own terms is limited to "the land and naval Forces." This plainly means the Army and the Navy, which are uniformed services. Most of the case law discussing this Article I provision rejects arguments that the UCMJ can be applied to civilians with some relationship to the military.
Glenn, do you care to give this a shot???
roflmao
ReplyDeletewhy would hoekstra switch ? maybe he found ount bush is spying on all of congress too?
hehehehe
that would be enough to offend him.
br3n
From Bart at 1:09pm:
ReplyDeleteThe text of the provision only speaks of making "Rules for the Government and Regulation."
Complete the quote: "...and Regulation of the land and naval Forces."
The plain meaning of this text and how the courts have interpreted it is that Congress has the power to set rules for the individual good order and discipline of the military. There is nothing here about directing or limiting the direction of military intelligence.
An equally plain reading of this text suggests Congress has the power to regulate any and all activity of the armed forces, not simply 'set rules for good order'(whatever that means).
Most of the case law discussing this Article I provision rejects arguments that the UCMJ can be applied to civilians with some relationship to the military.
Interesting point, but irrelevant.
Article I.8.14 grants Congress the authority to regulate the armed forces, the text itself making no distinction between those in uniform and those not. Civilian members of the military (a strange development of our modern times) may not be subject to the UCMJ, but I would argue their activity within the armed forces is subject to this provision and whatever controls, limits, or regulation Congress sees necessary and proper to place upon them by virtue of their employment by those same armed forces.
Again, the fact Congress has not exercised this authority to date beyond formulating the UCMJ in no way negates I.8.14 or the authority it grants.
Unless you can point to some case law that clearly and finally negates the clause in question, it can only be presumed it is still in force and can be utilized at any time to control any activity by the armed forces (whether 'uniformed' or otherwise).
the octillion said...
ReplyDeleteassigning belief to a random unknown individual is ultimately a guess. but based upon statistical probabilities, the chances that this person has pretended to miss the point is extremely low.
octillion, I take your point about there being very little useful or accessible public discussion of this distinction about legal vs illegal spying. However, what makes you think this "anonymous" is a "random" person? He probably linked here through LGF.
I compare him to Bart and Shooter because I, unlike some regulars here who are otherwise very smart people, can see the wheels and gears turning as these commenters turn the truth to its opposite. I have concluded that their strategy is simply to distract. Consider.
(1) They blatantly lie.
(2) They misrepresent everything, often contradicting themselves.
(3) They once started a discussion about apostrophes.
(4) Someone responds to them every time.
(5) They get the crap beaten out of them.
(6) They are still here.
(7) They always address and try to engage Glenn personally.
One can only conclude that they are trying to do exactly what they are succeeding in doing: distracting us.
The solution is neither to respond to them only with logic nor to simply ignore them. The key is for commenters here to engage with them and defeat them at every level: the legal level, the logical level, the emotional level, the rhetorical level. Glenn himself only emerges when he has a point to make, and that is proper—because otherwise the timewasters will have scored a hit. Mostly the response follows this pattern, but sometimes I am amazed at the crap people try to debunk.
That's what I'm pointing to.
It is so comical to see anyone assert that Article II gives the President 'implied' powers (contrary to every founding fathers' description of enumerated powers), yet Article I gives congress no 'implied' powers whatsoever. Tell you what, Bart, you provide the explicit power given the president in Article II that allows him/her to violate duly enacted laws passed by congress, and I'll show you the explicit power given congress in Article I that gives them the authority to enact said laws, okey doke?
ReplyDeleteYou've proven time and again that you're only goal is to excuse every abuse by Bush, regardless of how dishonest you have to be to do it (I notice you've ducked 2 challenges that proved beyond doubt that you are a liar on this very thread).
When President Hillary does this and uses these new powers (yes, they are new, invented by this administration), you had better not bitch about any of it. As a matter of fact, you'd better have your cheerleading outfit on and continue to lie to support her.
hypocrite
Cynic librarian—
ReplyDeleteI agree with your post. I am referring both to the many, many comments her to the effect that "we need to play dirty like they do," we need to stop arguing with them," etc. I cite George Lakoff because he is actually trying to do something about this problem by suggesting a way forward, or at least a means of constructing such a way forward.
The title of his book is Don't Think of an Elephant. he discusses ways of framing the debate to control it. I have not read the but am familiar with the rhetorical device(s) of framing. And i don't see any other way.
For example, he suggests framing Iraq as an occupation, not a war. That sounds obvious, but that's just where we fail, by assuming that others see it too. Frame it as an occupation, and its supporters will be forced to justify it.
bart:
ReplyDeleteUntil and unless a judge rules specifically on the question of whether FISA constitutes overreach, all your doing here is blowing smoke. In the meantime, every time Youngstown gets cited, your position gets weaker.
All of which is separate from the question as to whether unimpeded executive power is in fact desirable in this context. History STRONGLY indicates that it is not.
yankeependragon said...
ReplyDeleteFrom Bart at 1:09pm: The text of the provision only speaks of making "Rules for the Government and Regulation. The plain meaning of this text and how the courts have interpreted it is that Congress has the power to set rules for the individual good order and discipline of the military. There is nothing here about directing or limiting the direction of military intelligence.
An equally plain reading of this text suggests Congress has the power to regulate any and all activity of the armed forces, not simply 'set rules for good order'(whatever that means).
Interesting that no court or congress has ever read it that way.
However, let's take this novel theory to its logical conclusion. Essentially, you are saying that this provision enables Congress to assume command and direct or bar actions of the Armed Forces - determining where to invade, where to fight battles, where to send supplies and yes against whom to direct intelligence gathering.
Justice Department attorney David Kris wrote a memorandum critical of portions of the DOJ white paper which also explored the limits of congressional power to regulate the core Presidential power on pages 7-9. In doing so, he pretty much rejected the idea that Congress may direct the deployment of the military.
http://balkin.blogspot.com/kris.fisa.pdf
Anonymous said...
ReplyDeleteWhen President Hillary does this and uses these new powers (yes, they are new, invented by this administration), you had better not bitch about any of it. As a matter of fact, you'd better have your cheerleading outfit on and continue to lie to support her.
I have posted several times in that past that I have no problem with a President Clinton using these old and well established powers.
Indeed, I would call for he impeachment fro gross incomptence if she were not using all the tools of intelligence gathering against the enemy in a time of war.
actions of the Armed Forces - determining where to invade, where to fight battles, where to send supplies and yes against whom to direct intelligence gathering.
ReplyDeleteI know it seems bizarre in today's world, but it is pretty clear that that's what the framers had in mind.
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline
prescribed by Congress;
The above makes pretty clear that the Founders didn't anticipate that we would be in a permanent state of war and that the Army and Navy only exist at Congess's pleasure and of course there's all that silliness about "State militia's"
From Bart at 1:56pm:
ReplyDeleteHowever, let's take this novel theory to its logical conclusion. Essentially, you are saying that this provision enables Congress to assume command and direct or bar actions of the Armed Forces - determining where to invade, where to fight battles, where to send supplies and yes against whom to direct intelligence gathering.
Very good, although I expected you to raise this point some time ago.
And yes, that is a logical end to this line of reasoning; the fact Congress has not excised its authority in this way to date is, in my view, as much due to its self-restraint as its reading the clause in the same way as you. This is not to say some future session of Congress won't pass the most comprehensive, micro-managing set of regulations upon the Armed Forces, citing this clause of the Constitution as their authority to do so, all but paralyzing the services in the process.
Personally, I sincerely hope and pray they never take such a step.
As you note, no Court ruling nor Congressional statement has viewed this clause in this manner. But then, the Dredd Scott decision viewed blacks one way and Brown v. Board of Education viewed them another. Cultural and legal views invariably evolve over time and to accomodate new circumstances. Why should this be any different?
Justice Department attorney David Kris wrote a memorandum critical of portions of the DOJ white paper which also explored the limits of congressional power to regulate the core Presidential power on pages 7-9.
Again, interesting, but irrelevant. A DOJ white paper, no matter how well argued or cited, has no decisive power nor real bearing on questions of Constitutional authority. It is nothing more than an informed opinion, not a Court ruling.
Again, either cite me actual rulings by the Courts that clearly show Congress's authority under Article I.8.14 no longer exists, or simply acknowledge the clause is still in force and may (someday) be interpreted and utilized in the manner I suggest here.
Hi Glenn,
ReplyDeleteDid Horowitz spit on you? It sounded like you had to sit pretty far away to avoid it. The "angry left" has nothing on the angry right in the arena of drooling mania.
JaO said...
ReplyDeletebart: I disagree. You cannot even start the Jackson balancing test until you have a situation where Congress is acting pursuant to its Article I powers. Youngstown is predicted on Congress acting constitutionally pursuant to its power to regulate government land seizures.
What a crock. Jackson's Youngstown concurrence addresses the case of finding congressional action unconstitutional -- but only in the context of Category 3 analysis. In that situation, where the President violates congressional acts, Jackson said: "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject." In other words, the court would have to find the congressional act unconstitutional because Congress lacks the constitutional authority.
Thank you for demonstrating my point.
Jackson's "category three" applies to situations where Congress has enacted legislation You have quoted the key question to be decided under category three - whether Congress acted unconstitutionally in enacting the statute.
Exactly why then would the Supreme Court spend its usual dozens of pages discussing the application of FISA's statutory language to the NSA Program only to turn around in a single page to say: "Oh BTW, FISA is unconstitutional when applied to the NSA Program because no provision of Article I permits Congress to regulate intelligence gathering?"
To the contrary, the Court would simply find FISA unconstitutional when applied to intelligence gathering and dispose of the issue. Once that issue is decided, all others are moot.
No matter what order the Court wishes to address the issue, the end result and determinative holding is that Congress has no Article I power to enact FISA to regulate intelligence gathering.
The Hamdan plurality, citing Youngstown, applied that rule as follows: "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers." In other words, to find for the President, the court would have to find that FISA was not a proper excercise of congressional power...
My argument exactly.
The only part of your analysis that is correct is that if FISA is unconstitutional, the surveillance ultimately would be found to be lawful.
Finally! Thank you for admitting the obvious.
(Of course, that question has never been considered in court, let alone decided. No president -- notably including Geowrge W. Bush -- has ever made that claim in court.)
That is true. FISA has never been found constitutional by any court.
Bart constantly argues that nothing in Article I expressly empowers Congress to regulate intelligence gathering activities. Neither does anything in Article II expressly authorize the President to engage in intelligence gathering activities in the first place. Bart is very quick to find implied presidential powers by extremely narrow in his interpretation of Congressional powers. All right, Bart, if you interpret Congressional power so narrowly, what power under Article I authorizes Congress to create the NSA in the first place?
ReplyDeleteDid Rocco di Pippo ever turn up?
ReplyDeleteIn an email discussion of Hamdan between Cass Sunstein and Marty Lederman, Sandy Levinson makes the following statement:
ReplyDeleteSunstein also suggests that all of us must accept some reasonably strong version of the law/politics distinction. As Jack Balkin and I have argued, this may make sense if we are talking about "low politics," i.e., tailoring one's position precisely to fite the political interests of one's political preferences in the next election. But it makes very little sense if we are talking about "high politics," i.e., basic visionis [sic] of how best to structure the political order, especially with regard to an issue like the conflicts between natinal security, civil liberties, and basic issues of separation of powers. [my emphasis]
Does anyone know more about Levinson/Balkin's argument? Is there some place on the site that I might find a discussion of this?
bart said...
ReplyDeleteThe only part of your analysis that is correct is that if FISA is unconstitutional, the surveillance ultimately would be found to be lawful.
Finally! Thank you for admitting the obvious.
(Of course, that question has never been considered in court, let alone decided. No president -- notably including Geowrge W. Bush -- has ever made that claim in court.)
That is true. FISA has never been found constitutional by any court.
Bart, now you're just being childish. is this how law students taunt one another on the playground?
JaO said...
ReplyDeletebart: 1) Commerce Clause: Congress never claimed FISA was enacted pursuant to the Commerce Clause. This is not surprising because it is difficult to see how secret surveillance which in no way affects the communications at issue somehow affects commerce. The Commerce Clause has been stretched beyond all recognition since the New Deal Court, but I do not see how it stretches that far.
Congress has been regulating such matters since the original Federal Communications Act, and there is no serious question that interstate and foreign wire communications are regulated under this clause of the Constitution.
Interstate communications can be reasonable construed as commerce. Therefore, Congress may regulate the actions of those who are affecting commerce by communicating.
The NSA is neither engaged in commercial interstate communications nor does its surveillance in any way change commercial interstate communications. Surveillance is not a form of commerce nor does it affect commerce. Therefore, Congress may not regulate surveillance under the guise of regulating commerce generally or communications in particular.
bart: 2) Regulation of the Army and Navy: This provision is limited to regulation of the individual good order and discipline of the uniformed services and has never been interpreted to allow Congress to assume the power of regulating the direction of intelligence gathering.
CJ Roberts in his Senate testimony certainly described this clause as a very general power of Congress that could impinge on the President's command authority, and said that Justice Jackson's Youngstown framework was the proper way for the courts to analyze the split between executive and congressional war powers.
And CJ Roberts is completely correct. Before the UCMJ, the President delegated the power to convene courts martials to the military. Once Congress acted pursuant to that express provision of Article I to enact the UCMJ, they had the final word on setting rules for the good order and discipline of the military.
Besides, even within your narrow and imagined limitation the predecessor of the UCMJ, the Articles of War, explicitly required military personnel to be subject to general civilian law, which is what FISA is.
How is this possibly relevant? Either this provision of Article I provides the authority for the FISA court to decide whether the executive may engage in intelligence gathering or it does not. The fact that the UCMJ might incorporate FISA is irrelevant since the UCMJ by itself provides no constitutional authority to Congress concerning intelligence gathering.
bart: 3) Necessary and Proper Clause: The Necessary and Proper Clause does not create a substantive power allowing Congress to enact any legislation it feels necessary and proper.
Your silly and narrow interpretation of the Necessary and Proper clause was explictly rejected in the landmark case of McCullough v Maryland in 1819.
Please quote me the passage in McCullough v Maryland that holds that the N&P Clause creates a substantive power allowing Congress to enact any legislation it feels "necessary and proper."
BTW, you continue to misstate FISA as an attempt "to direct and conduct intelligence gathering." It does no such thing, but rather established rules for domestic surveillance that cover everyone. The President directs and conducts intelligence gathering, but he has to follow the codified rules.
Under your reading of FISA, the FISA Court must direct the president not to conduct electronic surveillance of any target which does not fulfill the requirements for a FISA Warrant. In short, the Congress through the FISA Court is directing what targets will be subject to intelligence gathering.
Direction can be either an affirmative or a negative order. In either case, it is a command function which the Constitution expressly reserves for the President.
anonymous said:
ReplyDelete[Arne]: "Huh? How about just getting a freakin' warrant. It's not like these applications get turned down...."
Is this some kind of joke? The administration had to go to court to get the FISA judges to stop turning down the warrants.
Where?!?!? You're making sh*te up.
Where do you think Re: In Sealed Case came from?
Ummm, they never turned down the warrant in In re: Sealed Case.
There was two questions presented: First, was the modified warrant that was issued proper (i.e., did the court have the authority to modify the order to prohibit LEAs directing the surveillance, etc.)? And second, was the warrant itself permissible under the Fourth Amendment? The gummint appealed the FISA judge on the first isssue; the ACLU and such filed amicus briefs on the second. Just a FYI for the factually deficient here, the gummint won on both issues, so claiming the FISA courts are some kind of hindrance based on this case is absurd.
Please try to stick to facts here. Thanks in advance.
Cheers,
anonymous:
ReplyDeleteThe whole system is archaic and possible unconstitutional since the judicial branch has higher authority than the executive branch to monitor foreign surveillance.
Bafflegab. Horse patooties. The judiciary doesn't "direct" the surveillances any more than does Congress in regulating it. The preznit still gets to choose who he'd like to spy on. All the judiciary does is make sure that the preznit's not spying willy-nilly (like Nixon, and sadly preznits before him to a lesser extent) did. Probable cause and all that.
A monitoring system needs to be in place that does not involve warrants.
Says the brown-shirt wannabe WATB. Here's a dollar. Buy a new pair of Depends.
Cheers,
I believe that Glenn and his fellows are on record as in favor of eavesdropping, while also being on record against it.... at least as a matter of law.
ReplyDeleteShooter242, I've never seen anyone complain even a tiny bit about eavesdropping when done in accordance with the law. The question is not "is there eavesdropping?" but "is there meaningful oversight to try to prevent mistakes and misuse?"
People think of warrants as "meaningless pieces of paper issued by courts", but what a warrant is, is a certification that there is justification for the activity.
People who investigate can easily get the bit in their teeth, and want to run wild; it's not that they're malicious, but once they get the scent, they sometimes keep pursuing it, sometimes to the detriment of efficiency (it's a waste of time to follow a false lead) and sometimes to the detriment of justice (out of context, some discussions can seem incriminating when they are, in fact, innocent).
And any government power that can be abused will be abused, eventually.
Warrants are protection against both problems. They're also specifically required by law.
The President can and should eavesdrop all he can, in compliance with the law. If there are inefficiencies in the process, well, he's got an MBA from Harvard Business School; he can figure out how to reduce those inefficiencies and submit a plan to Congress to get them fixed.
However, that wasn't done, and the law was violated in secret. Now, if you do something in secret that you should be doing with some level of oversight, call me crazy, but I suspect you're avoiding oversight because you have something to hide.
So, in addition to being upset that President Bush violated the law, I'm extremely interested in knowing why. It could be relatively innocent... but until I know for sure, I can't help but figure it's likely that he's hiding stuff because he has stuff to hide.
Octillion:
ReplyDeleteit's true that GOP talking points do show up here (with regularity), as does the GOP strategy of desperate repetition. (The rest is mirroring and parroting.) And that's why I read these threads—because I learn about those positions, such as they are, and the arguments for and against them. I don't understand these people intellectually because I am not as scared as they are, nor as greedy or cynical, but I do understand fear and detachment on an emotional level. I hope to understand them intellectually too, but I can see that ain't gonna happen. I just don't see how destroying our country saves it.
Anyway, I hope i don't see another discussion of commas again. I'm an editor by profession, but I try to avoid confusing trees and forest and I hope others do as well.
I also hope Lakoff's ideas catch on a little and we start getting a little more practical. Does anybody think we are convincing anyone here? Can anyone tell me that Bart and Shooter come here every day to learn, or that they in turn hope to convince us? Horse hockey.
HWSNBN sez:
ReplyDeleteHowever, I am not a judge and can take any approach I please....
HWSNB doesn't take a lawyer's approach either (and FWIW, a lawyer's appoach ought to mirror that of judges if they expect to actually win any arguments in court). In fact, serious questions arise, given HWSNBN's performance here, as to whether he actually is a lawyer. Seeing as he's claimed to have been a "criminal prosecutor" when in fact all he did was student intern in the ODA office, I'd take any such claims with a large grain of salt.
... I never thought much of the AUMF waiver argument and believe that the Court should reestablish the limits of congressional power which were lost when the Supremes gutted the commerce clause to allow the New Deal.
HWSNBN argues here not for the lack of power of Congress in such matters as interstate commerce (you know, the consrevative animosity to Wickard v. Filburn), but rather in favour of the power of the preznit. He's no state's-rights champeen here; he's a protofascist. On his logic, Wickard was wrong because it is solely the power of the preznit to set wheat prices and quotas, to prevent national tragedy and downfall due to Al Kaheeda and his minions subverting the very nature of our Democracy by selling Wonder Bread at bargain-basement prices.
Everything HWSNBN says that Congress may not do, he says it's because the preznit can do it without so much as a law passed, in fact in spite of an actual law being passed.
Cheers,
This comment has been removed by a blog administrator.
ReplyDeletebaldie eagle: For example, he suggests framing Iraq as an occupation, not a war. That sounds obvious, but that's just where we fail, by assuming that others see it too. Frame it as an occupation, and its supporters will be forced to justify it.
ReplyDeleteNot having read Lakoff's book, I suggested something very similar a few months back on this very blog. I think it makes sense to frame it this since it brings into the open the question about who can declare war.
"Framing" the issues is indeed important. The question is, how do you do this when the major media for framing those issues is the press and those who frame the issues are very well paid communication professionals who make it their job to spin and manipulate the message for the highest bidder's agenda?
I have also dealt with this issue on this very blog, outlining the issue itself, the processes involved, and some tentative solutions to the problem. Of course, you should also consult the many times that Glenn, Paul Rosenberg, and others have discussed this issue here.
I know it is considered somewhat outre to point others to personal blogs on someone else's blog, but if you wish I have collected my contribution to this issue here. You might also wish to google this blog using keywords "glenn greenwald media" etc.
My apologies to those who consider this a breach of netiquette.
Jao: If George W. Bush wants to bring such a test case, alleging that after almost 30 years FISA is unconstitutional because Congress had no authority to enact it, he is free to do so. Yet he cowers from judicial review of that question. ... Mister President, tell it to the judge.
ReplyDeleteWhy should he when he can simply invoke national security as an excuse? According to RAWSTORY:
The Bush administration on Monday asked a federal judge to dismiss a lawsuit challenging the National Security Agency's domestic eavesdropping program, arguing that defending the four-year-old wiretapping program in open court would risk national security.
In arguments before U.S. District Judge Anna Diggs Taylor in Detroit, the American Civil Liberties Union on Monday renewed its call for a court order that would force the government to suspend its program of intercepting without a court order the international phone calls and e-mails of U.S. citizens.
But the U.S. Justice Department has asked federal judges in Detroit and New York to throw out the landmark challenges to the eavesdropping program.
In both cases, the Bush administration has invoked a legal doctrine known as the "state-secrets privilege" that it has used to head off other court action spy programs.
HWSNBN shoots himself in the foot (better that getting fragged in Iraq, though, I'd say):
ReplyDelete3) Necessary and Proper Clause: The Necessary and Proper Clause does not create a substantive power allowing Congress to enact any legislation it feels necessary and proper. Rather, this is an enabling provision which allows Congress to enact legislation to perform the various powers described in the Constitution. For example, Congress arguably used the Necessary and Proper Clause to create the NSA so that the President could exercise his intelligence gathering powers.
LOL. Bart just conceded that Congress has the power to create a NSA. I'm sure he'd have to concede they then have the power to abolish it. And it's hard then to claim that Congress can't regulate and/or specify what it is that this NSA (or any other agency) may do.
Cheers,
Thanks, cynic.
ReplyDeleteI recall your comments on the topic of framing the debate. I consider this thread to be a potential test of tactics that could be used in the world at large.
What if bart were challenged to defend Iraq as an occupation of a formerly sovereign nation? What if we all told him on a daily basis (in addition to the usual debunkings) that we are 10 times the patriots that he is because we believe in the Constitution? That we love our country and hate al Qaeda as much as he does, if not more (because we seek no advantage from it)? Not that that hasn't been said . . .
What would happen?
HWSNBN is missing cites:
ReplyDeleteThe text of the provision only speaks of making "Rules for the Government and Regulation." The plain meaning of this text and how the courts have interpreted it is that Congress has the power to set rules for the individual good order and discipline of the military.
Also missing the word "only". HTH.
Cheers,
HWSNBN:
ReplyDelete[yankeependragon]: You can argue Article I.8.14 applies only to the "uniformed" members of the Armed Forces; the clause itself makes no such distinction...
The provision by its own terms is limited to "the land and naval Forces." This plainly means the Army and the Navy, which are uniformed services.
The head of the NSA, by law, must be a uniformed serviceman.
Cheers,
This comment has been removed by a blog administrator.
ReplyDeleteIs that sufficiently interesting for you to comment on
ReplyDeleteShooter242 once again famously misses the point. Something like that COULD happen here. Fanatacism and violence can happen anywhere independent of what inspires it. That's why this "traitor" nonsense we keep hearing is so dangerous.
Also of note via shooter's link is that it's a story decribing government officials (in this case Police) failing to follow the law.....
ReplyDeleteHWSNBN ought to take a look at this:
ReplyDelete10 USC 193 (you know, part of the UCMJ):
Section 193. Combat support agencies: oversight
...
(d) Review of National Security Agency and National Geospatial-Intelligence Agency. - (1) Subsections (a), (b), and (c) shall apply to the National Security Agency and the National Geospatial-Intelligence Agency, but only with respect to combat support functions that the agencies perform for the Department of Defense.
...
Seems that NSA is a "combat support agency" within the DoD.
Cheers,
JaO said...
ReplyDeletebart: I challenge anyone to offer an Article I provision which refers to intelligence gathering or a court case which interprets an Article I provision to allow Congress to regulate intelligence gathering.
I challenge you to offer any Article II provision that refers to intelligence gathering or any case that holds that Congress may not regulate it. (Post-FISA, if you please.)
To start, are you claiming that FISA amended Article II of the Constitution? If not, what difference does FISA make to your question?
On to your challenge, the following provisions of Article II provide the authority for the President to direct and conduct warrantless intelligence gathering against foreign groups and their agents in the United States:
Article II, Section 1(1): "The Executive Power shall be vested in a President of the United States."
The Constitution only assigns executive power to the President, executive power is the authority to carry out acts of government and intelligence gathering is an act of government.
Article II, Section 1(8): The President's sworn duty is to "preserve, protect and defend the Constitution of the United States."
Once again, the Constitution assigns this duty only to the President and this duty includes the defense of the Constitution from foreign threats.
Article II, Section 2(1): "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states..
Intelligence gathering has been a key function of the military in our Republic since George Washington commanded the Continental Army.
The Supreme Court held that the President's foreign policy powers are plenary and only subject to limitations imposed by the Constitution itself.
In United States v. Curtiss-Wright Export, the Supreme Court observed: "[T]he delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations – a power which does not require as a basis for its exercise an act of Congress, but which, of course, like every other governmental power, must be exercised in subordination to the applicable provisions of the Constitution."
More specifically, every court to render an opinion on the matter has held that Article II grants the President the power to conduct warrantless intelligence gathering: See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982); United States v. Buck, 548 F.2d 871 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 916 (1974). Cf. In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).
Which, of course, brings me back to my challenge above for you to find the Article I provision which is necessary fro FISA to limit the President's plenary authority over foreign policy such as intelligence gathering.
Feel free to join in at any time Glenn...
Arne Langsetmo said...
ReplyDeleteLOL. Bart just conceded that Congress has the power to create a NSA. I'm sure he'd have to concede they then have the power to abolish it.
Sure they do. They also have to power to defund the agnecy. These are all enumerated legislative powers.
And it's hard then to claim that Congress can't regulate and/or specify what it is that this NSA (or any other agency) may do.
Quite the contrary, it is impossible to argue that Congress may direct the activities of any of these executive agencies. That is an executive function and the Constitution only grants executive power to the President.
HWSNBN swings and misses:
ReplyDeleteBefore the UCMJ, the President delegated the power to convene courts martials to the military.
Ummm, exactly who would "convene courts martial" if not the military?
Cheers,
Fortunatly, these issues will not be decided here. There are cases challenging the NSA program. They will eventually be heard.
ReplyDeleteHWSNBN is totally confused:
ReplyDeleteUnder your reading of FISA, the FISA Court must direct the president not to conduct electronic surveillance of any target which does not fulfill the requirements for a FISA Warrant. In short, the Congress through the FISA Court is directing what targets will be subject to intelligence gathering.
Under HWSNBN's perverse "theory" of "direction", the U.S. COngress can pass no laws prohibibiting murders, as these laws apply only that limited specific group of people who are murderers, and such is an illegal bill of attainder.
Cheers,
Arne Langsetmo said...HWSNBN ought to take a look at this:
ReplyDelete10 USC 193 (you know, part of the UCMJ):
Section 193. Combat support agencies: oversight
...
(d) Review of National Security Agency and National Geospatial-Intelligence Agency. - (1) Subsections (a), (b), and (c) shall apply to the National Security Agency and the National Geospatial-Intelligence Agency, but only with respect to combat support functions that the agencies perform for the Department of Defense.
...
Seems that NSA is a "combat support agency" within the DoD.
Actually, this provision of the UCMJ makes it clear combat support for the uniformed services is only one part of the function of the NSA and the only part of concern to the UCMJ
There is no evidence that the NSA provides any of the data or analysis derived from the surveillance of international telecommunications between the US and other countries to the military for "combat support."
Thanks for the assist in demonstrating that the Article I provision authorizing the UCMJ is limited to the activities of the uniformed military services.
HWSNBN is ignerrent:
ReplyDeleteInterstate communications can be reasonable construed as commerce. Therefore, Congress may regulate the actions of those who are affecting commerce by communicating.
IIRC, the Telecommunications Act (as does CALEA, etc.) regulates the circumstances under which telecommunications information may be obtained by the gummint.
Cheers,
From Bart at 4:39pm:
ReplyDeleteQuite the contrary, it is impossible to argue that Congress may direct the activities of any of these executive agencies.
Not to put too fine a point on it, but Congress could invoke Article I.8.14 and pass new regulations upon the NSA, limiting its powers or mandate, and do the same to any of the branches of the Armed Forces.
Similarly, it could just as easily pass a blanket ban on domestic target surveillance and the like; I grant this sounds a tad extreme, but I'm trying to illustrate that Congress is neither powerless nor that Executive Branch agencies are outside its reach.
HWSNBN is confused:
ReplyDeleteArticle II, Section 1(1): "The Executive Power shall be vested in a President of the United States."
The Constitution only assigns executive power to the President, executive power is the authority to carry out acts of government and intelligence gathering is an act of government.
No one is suggecting the Denny Hastert get out there on a telephone pole (and that's a good thing, IMNSHO).
Yes, the executive "acts". For instance, it arrests criminals and places them into custory. It runs prisons.
On HWSNBN's 'logic' here, as these are executive functions, the preznit may do so in whatever manner he sees fit, and because the "executive" function is his and his alone, no one may gainsay him if he chooses to have prisoners shot, deprives them of food, refuses to pay for piecework done, refuses parole hearings, commits 42 USC 1983 violations, etc. in his executive duties. How could Congress have the nerve to tell the preznit how to do his Article II duties? Oh, the horror, oh, the humanity.... Just let him do his job now, willya?
Cheers,
HWSNBN engages in "argument by repeated assertion" (otherwise known as argumentum ad nauseam):
ReplyDelete[Arne]: LOL. Bart just conceded that Congress has the power to create a NSA. I'm sure he'd have to concede they then have the power to abolish it.
[HWSNBN]: Sure they do. They also have to power to defund the agnecy. These are all enumerated legislative powers.
[Arne]: And it's hard then to claim that Congress can't regulate and/or specify what it is that this NSA (or any other agency) may do.
Quite the contrary, it is impossible to argue that Congress may direct the activities of any of these executive agencies. That is an executive function and the Constitution only grants executive power to the President.
Hey folks! Did any of you see an argument there? Best I can pull out of it is the "straw man" HWSNBN keeps putting up (ad nauseam) about "direct" when all we're talking about is general laws and regulations.....
Cheers,
HWSNBN completely misses the ball:
ReplyDelete[Arne]: Seems that NSA is a "combat support agency" within the DoD.
Actually, this provision of the UCMJ makes it clear combat support for the uniformed services is only one part of the function of the NSA and the only part of concern to the UCMJ.
Ummmm, methinks that HWSNBN has conceded here that the UCMJ applies to the NSA. Kind of shoots to hell HWSNBN's insane bloviatings about the "rules and regulations" only applying to rules for the "good conduct" of uniformed officers. Whatcha think, folks?
Cheers.
HWSNBN is truly insane (or profoundly dishonest, take your pick):
ReplyDeleteThere is no evidence that the NSA provides any of the data or analysis derived from the surveillance of international telecommunications between the US and other countries to the military for "combat support."
Clueless. Truly clueless. Hasn't the slightest idea what a NSA "FLASH" is.... He ought to read Bamford's books ... but he's got his nose stuck too deeply in Freepervile and WhirledNutzDaily and other such sources of "news" ... or someplace else.
Cheers,
JaO said...
ReplyDeletebart: Interstate communications can be reasonable construed as commerce. Therefore, Congress may regulate the actions of those who are affecting commerce by communicating.
The NSA is neither engaged in commercial interstate communications nor does its surveillance in any way change commercial interstate communications. Surveillance is not a form of commerce nor does it affect commerce. Therefore, Congress may not regulate surveillance under the guise of regulating commerce generally or communications in particular.
Absolutely antedeluvian, and contravening decades of jurisprudence.
Really? Then you can point out the case law which holds that surveillance of communications my be regulated under the Commerce Clause.
Me: Besides, even within your narrow and imagined limitation the predecessor of the UCMJ, the Articles of War, explicitly required military personnel to be subject to general civilian law, which is what FISA is.
bart: How is this possibly relevant? ... The fact that the UCMJ might incorporate FISA is irrelevant since the UCMJ by itself provides no constitutional authority to Congress concerning intelligence gathering.
It is relevant as a precedent showing that even under your narrow view of what the Rules and Regulation clause means, it historically meant that Congress could require military persons to comply with civilian law in general. FISA is just such a law.
That is absurd. The UCMJ cannot make FISA constitutional merely by stating that civilian laws apply to the military.
bart: Please quote me the passage in McCullough v Maryland that holds that the N&P Clause creates a substantive power allowing Congress to enact any legislation it feels "necessary and proper."
Nice attempt at a strawman. I never made any such claim.
I made the statement that the N&P Clause did not allow Congress to enact anything they thought was necessary and proper, but you denied my statement and referred me to McCullough v Maryland.
Obviously, McCullough v Maryland does not interpret the N&P clause this way.
However, in McCullough (almost 200 years ago) the court rejected your assertion that the Necessary and Proper Clause provides no powers beyond the enumerated powers of Congress. That landmark case established the doctrine of implied powers.
The Doctrine of Implied Powers simply holds that the enumerated powers of Section 8 of Article I also imply the power to enact all usual and suitable means to exercise the enumerated powers.
In the case of McCullough, the Court held that the power to raise and spend revenue also implied the power to create a bank to assist in that endeavor.
Nowhere in McCullough or any subsequent case did the Court hold that any provision of Article I implied that Congress could direct executive intelligence gathering.
BTW, I'm still waiting for you to explain how you think the U.S. criminal and penal code is authorized in the Constitution, if not by the Necessary and Proper clause as McCullogh v Maryland said in its dicta explaining implied powers.
Why don't you tell me which implied power the Courts used to authorize the criminal code? This is your analogy, prove it.
bart: Direction can be either an affirmative or a negative order. In either case, it is a command function which the Constitution expressly reserves for the President.
I am still waiting for you to cite the constitutional language that "expressly" says so. There is none. Rather, the powers you claim for the president are only inherent -- that is, implied rather than explicit.
No, the powers granted the President are general (not implied) and all encompassing in their subject matter areas. ALL executive power is vested in the President. There is no need to list the hundreds of distinct authorities which are executive in nature. If the power is executive and not otherwise barred by another provision of the Constitution, it is plenary to the President.
And of those powers, Jackson said in Youngstown, "Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress."
My point exactly. The Jackson analysis applies when a Presidential constitutional power comes in conjunction or disjunction with a congressional constitutional power. Thus, we always come back to my challenge.
As the Hamdan plurality said two weeks ago in applying Jackson's framework: "Whether or not the President has independent power, absent congressional authorization ... he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers."
Once again, my argument exactly.
Sorry bart, the Supreme Court simply does not accept your imaginary view of the Constitution.
Which part of the exercise of Congress' powers did you not understand in the Youngstown and Hamden cases?
Glenn, care to lend your fans a hand here?
Bart:
ReplyDeleteThe UCMJ cannot make FISA constitutional merely by stating that civilian laws apply to the military.
It was already pointed out earlier that soldiers are no more or less subject to our laws than others. In that regard, civilian laws DO apply to the military.
Also Glenn was busy with a new post. You might care to move up a thread.
Ummmm, methinks that HWSNBN has conceded here that the UCMJ applies to the NSA. Kind of shoots to hell HWSNBN's insane bloviatings about the "rules and regulations" only applying to rules for the "good conduct" of uniformed officers. Whatcha think, folks?
ReplyDeleteNot really, Bush can simply write and execute an executive order to continue the NSA. Congress cannot do anything to the NSA except defund it.
Awwww ... poor little Bart ... Is Glenn ignoring you?
ReplyDeleteMaybe it's because you haven't said anything new in months, and everything you are saying has long since been refuted by Glenn (and others).
HWSNBN thinks the U.S. criminal code is null and void (at least for preznits, eh?):
ReplyDelete[jao]: BTW, I'm still waiting for you to explain how you think the U.S. criminal and penal code is authorized in the Constitution, if not by the Necessary and Proper clause as McCullogh v Maryland said in its dicta explaining implied powers.
Why don't you tell me which implied power the Courts used to authorize the criminal code? This is your analogy, prove it.
So there isn't any constitutional basis for the U.S. criminal code?
Cheers,
HWSNBN:
ReplyDeleteGlenn, care to lend your fans a hand here?
You're the one who's getting his a$$ waxed here, Bart. Why don't you ask pretty please if maybe Glenn, a real constitutional lawyer, might be kind enough to help you out ... or at least direct you on to the paths of righteousness....
Cheers,
anonymous:
ReplyDelete[Arne]: Ummmm, methinks that HWSNBN has conceded here that the UCMJ applies to the NSA. Kind of shoots to hell HWSNBN's insane bloviatings about the "rules and regulations" only applying to rules for the "good conduct" of uniformed officers. Whatcha think, folks?
Not really, Bush can simply write and execute an executive order to continue the NSA. Congress cannot do anything to the NSA except defund it.
Yeah. And he can order the Army to go lock up the whole Congress and the judiciary, lock, stock, and barrel. But as my ConLaw professor said when I pointed that out, "that's a differmt class ... over in the PoliSci department".
Got any other legal arguments?
Cheers,
me said...
ReplyDeleteAwwww ... poor little Bart ... Is Glenn ignoring you?
Don't you recognize taunting when you hear it?
Go watch Monty Python's Holy Grail again for a refresher...
French Soldier: You don't frighten us, English pig dogs. Go and boil your bottoms, you sons of a silly person. I blow my nose at you, so-called "Arthur King," you and all your silly English K-nig-hts.
Bart
ReplyDeleteUnder your theories of plenary executive powers, it would seem that the Senate and House Intelligence sub-committees are unconstitutional? I probably don't have the time to go back and find all of your quotes, but if you make me... But as I understand it, your opinion seems to be that the President, by virtue of having been granted plenary executive power within the constitution, cannot be limited in the exercise of such by the congress. Therefore, any congressional interference would be unconstitutional?
Also, there is a comment above that I thought deserved response: If the Prez is ultimately and solely responsible for the execution of executive responsibiilies and roles, and can't be limited by the legislative body in the performance of those roles, what are the constraints upon police or correctional officer behavior? are those laws, enacted by legislative bodies, also unconstitutional?
I personally find this viewpoint abhorrent, but I seem to think you are sincere in your belief that this is what the constitution said, that this is what the framers intended, and these are the principles of life and liberty upon which this country was founded.
I can't even see that this in question really. Congress passes the laws, the courts interpret them, the president enforces them. Where does the executive branch, by any stretch of the imagination, get extra-legal powers as policy?
While I was typing this JaO just added an AWESOME post rebutting some of your points, too.
From Bart at 7:02pm:
ReplyDeleteDon't you recognize taunting when you hear it?
I believe its been pointed out here, more than once, no-one here is obligated to acknowledge your posts, your arguments, or your presence.
The fact Glenn has stated he has no interest in engaging your (non)arguments in the first place should be a bit of a clue.
HWSNBN shows evidence of "culture" but still no evidence of sapience:
ReplyDelete[me]: Awwww ... poor little Bart ... Is Glenn ignoring you?
Don't you recognize taunting when you hear it?
Go watch Monty Python's Holy Grail again for a refresher...
Yes, indeed. Good analogy. HWSNBN's yelling after Glenn: "Come back and I'll bite your kneecaps ooooooofffffff....."
Fits perfetly.
Cheers,
Then we also have 10 USC § 802:
ReplyDelete§ 802. Art. 2. Persons subject to this chapter
(a) The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces,...
(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.
...
(10) In time of war, persons serving with or accompanying an armed force in the field.
(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
So the UCMJ is on its face not restricted to uniformed military servicemen.
You'd think HWSNBN might know this, but you'd be wrong.
Cheers,
More specifically, every court to render an opinion on the matter has held that Article II grants the President the power to conduct warrantless intelligence gathering: See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982); United States v. Buck, 548 F.2d 871 (9th Cir.), cert
ReplyDeletemaybe not as bad as shooter 242, but bart, you live in a delusional world. with respect to non americans, yes. or, before FISA was passed, perhaps, in limited specific instances,with a record for oversight (specific reasons why the action was understaken) perhaps even to american citizens.
does citing a long list of case that dont say what you say they say help you stay delusional?
if you really believe in totalitarianism, why not move to a totalitarian country, rather than try to turn this county into one?
jao:
ReplyDeleteCongress can codify its regulation of the armed forces under Title 50 (where both FISA and the UCMJ are, along with multiple other acts regulating the military and national security),...
UCMJ has been moved to Title 10, Chapter 47.
BTW, my bad above: I said that 10 USC § 193 is part of the UCMJ (10 USC § 801 et seq.). It is not. But it is part and parcel of Title 10 ("Armed Forces"), which has tons of stuff that show that mere regulation of the "good conduct" of "uniformed" servicemen is by no means the extent of the powers of Congress to regulate the military. My point remains. Congress can and does regulate the NSA, and does so through its powers of regulation of the armed forces.
Cheers.
HWSNBN trots out the same ol' lame list of cites:
ReplyDeleteMore specifically, every court to render an opinion on the matter has held that Article II grants the President the power to conduct warrantless intelligence gathering: See, e.g., United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1144 (1982); United States v. Buck, 548 F.2d 871 (9th Cir.), cert. denied, 434 U.S. 890 (1977); United States v. Butenko, 494 F.2d 593 (3d Cir. 1974) (en banc), cert. denied, 419 U.S. 881 (1974); United States v. Brown, 484 F.2d 418 (5th Cir. 1973), cert. denied, 415 U.S. 916 (1974). Cf. In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002).
Two things:
1). All but the last case are pre-FISA. And the last case, as has been repeatedly pointed out, held no such thing.
2). HWSNBN still refuses to quote from these opinions the parts where he claims they say what he us asserting.
IOW, it's all hand-waving by HWSNBN, and given his track record of misquoting opinions, and his well-demonstrated inability to distinguish dicta from holdings, his claim, despite the litany of cases he cribbed from somewhere or another, must be considered to be totally without basis.
Cheers,
jao:
ReplyDeleteAs I'm sure you agree, my mistake made no substantive difference. But better to fix it.
But of course! See my mea culpa above. We're all human .... except for HWSNBN, who continues his mis-cites even when others point out his errors -- with the expection of two cites so far where he was unarguably wrong and I called him on them. One of them was a clain that the courts made a holding, when in fact it was dicta (the Pentagon Papers case, where he first claimed a majority held that such actions could be prosecuted after the fact, and then backed down [uncharacteristicly] to admitting that it was dicta). But he's back to insisting that the FISA COurt of Appeals, in In re: Sealed Case, "held" that the preznit has such powers to engage in warrantless wiretaps. He's wrong.
Cheers,
jao:
ReplyDelete[Arne]: He's wrong.
He lies. When bart makes those misstatements of law repeatedly, having been corrected repeatedly not on opinion but on such misstatements of legal fact, that is unethical, malicious behaviour.
Enough for a MRPC Rule 8.4(c) complaint, ya think?
Cheers,
The Bart School of Constitutional Interpretation:
ReplyDeleteThe Congress shall have power to...make Rules for the Government and Regulation of the Land and Naval Forces.
Since this passage does not mention spies explicitly, Congress has no authority whatsoever over spies.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several states, when called into the actual Service of the United States
Since this passage does not mention spies explicitly, the President has unlimited and illimitable powers over all espionage, foreign and domestic.
He [the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors
The President is the sole organ of foreign policy.
he [the President] shall take Care that the Laws be faithfully executed
The President can ignore any law if he decides it is inconsistent with his own personal interpretation of the Constitution. (Where is the President empowered to judge constitutional claims? I couldn't find that passage. Maybe because it doesn't exist.)
In other news, black is white. Mind those zebra crossings.
P.S. Why does this comment area reject the perfectly valid and ordinarily well-behaved blockquote tag? It would make some posts considerably more readable.
chris:
ReplyDeleteP.S. Why does this comment area reject the perfectly valid and ordinarily well-behaved blockquote tag? It would make some posts considerably more readable.
Blogger "feature". Annoys me too ... it would make things a bit more readable.
Send 'em some rantmail.
Cheers,
Glenn writes Jeff Goldstein's blog, a venue which itself is devoted to some of the most vile, deranged and psychosexually disturbed commentary that can be found on the Internet.
ReplyDeleteIf Orin Kerr ever wrote even one sentence like that, I'd be tempted to forgive all of his deficiencies.
But he wouldn't.
Glenn is his ideas, so he's not afraid to speak his mind for fear of offending someone.
Orin keeps his "options open" and always seems to have one eye toward any possible paper trail.
That's my objection to Orin and one reason I find Glenn so refreshing.
Another is Glenn is so wickedly funny.
Did Goldstein try to ban Frisch's IP?
ReplyDeleteIt seems to me that at some point, unless he banned her IP and prevented her from trying to post, he wanted this to go on so he could look like a victim. If he banned her IP and she managed to get through it using a proxy or anonymizing software then she was indeed harassing him and should probably be brought up on some kind of petty stalking charges.