The Associated Press is reporting that Sen. Arlen Specter has reached agreement with the White House on a bill acceptable to both of them to render legal the currently illegal warrantless eavesdropping program. I am writing something today on a deadline -- actually past a deadline -- which I promised would be done today, so I may not have time to post on this (or the Hamdan developments from yesterday) until tomorrow. But I am certain that many people will have things to say about this in Comments, so I am posting this to enable that discussion. If I can post more later, I will.
I haven't seen the legislation, but based on the reports of it I've read, the biggest question, in my view, is whether it contains the amnesty -- the retroactive shield from prosecution -- which Specter's last proposed FISA-related bill (.pdf) provided (the existence of which he dishonestly denied on national television). If anyone has a link to the bill itself, please post it in comments (or e-mail it).
UPDATE: The Specter bill is here and here (the first link is the bill he proposed several weeks ago, and the second link contains the amendments to that bill as of July 11) (h/t la'ikoa). From my preliminary read, the bill as it exists today would not only legalize warrantless eavesdropping going forward, but would also purport to retroactively legalize the administration's warrantless eavesdropping back through 1978 - meaning that the criminal behavior which the administration has engaged in for the last five years would suddenly and magically become legal.
I say this because the provisions of the Specter bill which, as I explained here, provide such retroactive de-criminalization (Section 801), are not changed in any meaningful way through the July 11 amendments. If that is the case, enactment of this bill into law would be a travesty of unparalleled proportions, for reasons I explained here:
The idea that the President's allies in Congress would enact legislation which expressly shields government officials, including the President, from criminal liability for past lawbreaking is so reprehensible that it is difficult to describe. To my knowledge, none of the other proposed bills -- including those from the most loyal Bush followers in the Senate -- contained this protective provision. And without knowing anywhere near as much as I would need to know in order to form a definitive opinion, the legality of this provision seems questionable at best. It's really the equivalent of a pardon, a power which the Constitutional preserves for the President. Can Congress act as a court and simply exonerate citizens from criminal conduct?
The Supreme Court in Hamdan just made clear that the President's legal defenses for eavesdropping on Americans in violation of FISA are baseless. That means that the President has been violating the criminal law, and continues to do so. What possible rationale is there for Congress to immunize him from liability by retroactively rendering legal his criminal conduct? If political officials can violate the law, and then have their Congressional allies enact new laws to magically turn their crimes into legal acts, then the rule of law, by definition, does not exist.
UPDATE II: As always with these proposed bills, there is now some confusion as to exactly what the latest version does provide.
The July 11 amendments which I linked to above do not alter the retroactive legalization provisions from Specter's last version -- which would mean this bill does provide amnesty. But the ACLU just e-mailed me what they are calling the "Final Specter bill" -- meaning the bill described by news reports today -- and the version they sent to me (which is not yet available online) does not contain the retroactive provision. It does amend the penalty provisions of FISA so that it would now be permissible -- going forward -- to eavesdrop either under FISA or "under the constitutional authority of the executive." But at least from what I can tell, it does not contain that pernicious provision making that amendment retroactive to the 1978 enactment of FISA, the way the prior Specter bill did.
Nonetheless, the ACLU has issued a letter (also not yet available online) in which they say this (emphasis in original):
For the following primary reasons, the ACLU urges all Senators to vote against the substitute for S. 2453 and speak out against it:
Congress Should Not Pardon the President for Violating Criminal Laws against Government Wiretapping without a Court Order.
The bill would amend section 109 of FISA, 50 USC § 1809, which imposes a criminal penalty of up to five years in jail and a $10,000 fine for wiretapping Americans without a court order. It would accomplish this by allowing wiretapping at the direction of the president outside of FISA, accepting the theory that the president has inherent constitutional authority to wiretap without judicial oversight. It would also amend the criminal code, 18 USC §§ 2711(2)(e) and (f), to make it legal to
wiretap outside of FISA at the direction of the president.
In so doing, Senator Specter’s bill would expressly create a retroactive exception to criminal liability when warrantless wiretapping is done at the president’s discretion, acquiescing to the president’s claim of inherent constitutional power, unless and until a court intervenes. Little could be more damaging to the rule of law than effectively pardoning President Bush and his aides, and in the process returning our nation to the dark days before Watergate when President Nixon spied at will on journalists, government employees, and ordinary Americans.
Although the ACLU accuses the Specter bill of providing a "pardon" for the President's prior criminal conduct -- and also of "expressly create(ing) a retroactive exception to criminal liability when warrantless wiretapping is done at the president’s discretion" -- it seems they are criticizing the bill's recognition of the President's inherent authority to eavesdrop going forward. There is no reference to any express provision providing for retroactive de-criminalization of past violations of FISA, which leads me to believe that it is not, in fact, in this bill, or else the ACLU would emphasize it in their opposition.
I know this is all less than clear, but between figuring out which version of the bill is the current one, and which provisions it contains, the matter itself is unclear. But it seems to me now that although there is a (weak) argument to make that this bill provides retroactive legalization, it does not do so in the explicit sense that the prior Specter bill did. Instead, it merely enables the administration to claim that Congress is now recognizing the administration's inherent authority to eavesdrop -- a point which, even if true, would not (as Hamdan and Youngstown made clear) excuse the administration's exercise of that power in the face of a Congressional statute which imposes limitations on the power.
Patterico is an enema bag.
ReplyDeleteThis comment has been removed by a blog administrator.
ReplyDeleteI agree with Glenn... I find that whole "Fitz" or "First" or whatever thing juvenile and irritating.
ReplyDeleteRegarding the post...
If Bush's people so strongly beleive what they are doing is legal (and moral), then why do they need to 'cut a deal' in order to justify/legalize it?
Glenn: I am wondering if you are going to address what the responsibilities of those people -- specifically those doing the actual "spying" -- at the NSA have given the court's decision. Should they not immediately stop? If not, should they not be charged criminally?
ReplyDeleteI suppose that it would too much for his bill to leave out the language supporting the unitary executive theory.
ReplyDeleteI have another question.
ReplyDeleteCan the legislature retroactively authorize unlawful acts in this fashion? Suppose a D took over the White House in '08 and wanted to prosecute the most blatant abusers. It's one thing to change the law prospectively; quite another to retroactively pardon those who have committed prior crimes.
(The reality is that no one-even a new white house occupant--will enforce FISA against NSA employees if Specter's bill passes, so perhaps the issue will never be ripe). It just seems to be too much to ask that this government follow its laws.
I understand the outrage at any sort of retroactive amnesty for this administration's lawbreaking, but practically I don't think it's a substantive point.
ReplyDeleteBush could (and presumably would) grant pardons. The only thing we lose if Specter's bill does grant amnesty is the polical price Bush would have to pay if pushed to actually use a pardon.
I personally wouldn't mind seeing him pay that cost, but realize that the game was fixed from its inception - no way will anyone ever be held legally accountable for this misconduct because of Bush's trump card.
I actually would prefer to use the "capital" elsewhere - if Specter got a concession from Bush for doing him such a favor - then that would be admirable.
If only there were evidence for such a concession ... if only Specter were trustworthy.
Is it too early to start applying pressure for a filibuster of any amnesty proposals?
ReplyDeleteI could only see some form of amnesty possible if Bush and his admin. confess to the nefarious and deceptive machinations they have used to justify these programs. I
ReplyDeleten particular, there should be some way to highlight the cabal-like activities of Cheney/Rumsfeld, as described by Col. Wilkerson.
Per Specter's office... officehttp://thomas.loc.gov/cgi-bin/thomas
ReplyDeleteS-2369
World Cup fever got the best of me. Comment deleted.
ReplyDeleteThanks, Michael - I apprecate it.
JAO - Rather, the central constitutional question about the surveillance to me has always been about exective power, and Bush's assertion that he had power to override congressional acts. Not only would that question not be tested in Specter's form of judicial review, Congress by legislation would have ceded the question to the President.
But if there is no amensty (and what makes you think there is?), then courts can - and likely will - resolve the question of whether the President had the authority to violate FISA prior to this change. If there is amnesty and it's found to be legally valid, the courts won't ever adjudicate that question.
That's why I think amnesty is so critical - even if, going forward, the President has the authority to eavesdrop without warrants, there should still be an adjudication as to whether he was authorized in the past to break the law. Aside from the need to hold political officials accountable when they engage in criminal behavior, it's also important to have that adjudicated because if Congress has the authority to limit the President in this area, then Congress could always re-enact FISA.
Ok, so no one will be held accountable, but are these not career government employees? How do they live with themselves? I can understand Bush and a "small" group of his followers, but ALL of the FBI/CIA/NSA are proto-fascists? Are all these low-level employees just doing what they are told to -- without thought as to what it means to monitor Americans?
ReplyDeleteCan a president pardon someone who has not yet been charged with a crime? As would happen if blanket retroactive amnesty, achieved by a law legalizing previously criminal activity, is NOT passed before Bush leaves the WH?
ReplyDeleteAnd if it IS made legal enough for a Repug Congress, so that Bush does not feel the need to pardon, then . . .
My head hurts. Let's just say that any pardon would be an outright admission of a crime.
This just in:
ReplyDeleteEx-CIA operative Valerie Plame sues Vice President Cheney, his former aide, Scooter Libby, and presidential adviser Karl Rove.
If Bush's people so strongly beleive what they are doing is legal (and moral), then why do they need to 'cut a deal' in order to justify/legalize it?
ReplyDeleteWell, there is an issue with the "case or controversy" clause in Article III of the Constitution. Just because there is a political dispute over the administration's NSA surveillance policy, that doesn't mean that there is an actual dispute between adverse parties that the administration and the federal courts are willing to recognize as having standing. Without such a case or controversy, the federal courts wouldn't have jurisdiction. However, if the Congress uses its Article I authority to grant jurisdiction to the FISC, then that court can decide the issue.
Apparently, Specter says the bill is unchanged. So presumably that means the amnesty provision is still in there:
ReplyDeleteI [Specter] am authorized to say that if the bill is not changed, the president will submit the terrorist surveillance program to the Foreign Intelligence Surveillance Court.
source:
http://thinkprogress.org/2006/07/13/specter-compromise/
Persuming the WaPo article is correct in this particular detail, this is my favorite part of the "bill":
ReplyDelete_Create a new offense if government officials misuse information.
hahaha - What's the point?
This bit concerns me (from the NYT article):
ReplyDelete"Asked whether the review by the court would be continuing or a one-time affair, the senator said it would be the latter, unless the eavesdropping program is changed. “What we’re looking for is the existing program to be submitted to the F.I.S.A. Court on a one-time review; they make a decision, that’s it,” Mr. Specter said. He declined to speculate on whether the court would announce its decision."
Who's to say what consititutes a "change" in the program? Couldn't the Executive branch justify any new surveillance activities, by saying that it didn't constitute a "change" from activities that had already been authorized, and therefore didn't require review?
I got an e-mail from Feinstein yesterday that says she was co-sponsoring the bill to bring it under the FISA law.
ReplyDeleteThe first thing I thought was, "Is there an amnesty provision?" Of course, the e-mail contained no mention of that.
Knowing DiFi and Specter's history. DiFi espeically. I highly doubt that the provision was left out.
Milktoast and spineless would never come close to fully describing those two.
I'd like a close look at that bill's provisions for oversight. If it just stamps congressional approval on the existing program, it is STILL lawless because it does not have judicial review.
Then those who have been arguing for the program's legality will declare victory. Like the president's authoritarian followers and certain trolls of particular blogs. *cough*
Here are links to the bill and amendments to the bill as of July 11, 2006.
ReplyDeleteBill S.2453
Amendments dated 07/11/06
Compliments of Electronic Frontier Foundation.
haydesigner in SD said...
ReplyDeleteI agree with Glenn... I find that whole "Fitz" or "First" or whatever thing juvenile and irritating.
I feel the same way about the territorial imperative, dominance hierarchies and proprietary rights, capitalism etc.
It doesn't strike me as in any way constitutional for congress to pass a law granting amnesty to past law-breakers, however the mere existance of such a provision will give a lot of cover to the administration.
ReplyDeleteWhat Federal Prosecutor will lay charges, knowing that law is there?
Finally, if will give cover to bush to issue pardons all around, to which he can point to how congress agrees with him.
Amnesty is bad, and I'm not that confident of the Supreme court striking it down.
Question: What happens in general when a legal restriction is lifted, to people who were previously breaking that law? I suspect if they are before the courts, their matters proceed under the law at the time of offence.
The reporting on this newest of Specter's bills is more than a little confusing and reporting on his past bills have been wrong in the past, so we might want to wait until we see the actual bill.
ReplyDeleteHowever, it sounds like this new deal will have Congress ratify the President's Article II authority to conduct the NSA surveillance and amend FISA to eliminate ongoing review by the FISA court except for a one time only FISA review to see whether the entire program is constitutional.
If this is correct, no wonder the WH is delighted and opponents are calling it a "sham judicial review."
In sum, it looks like Justice will bring its arguments for the constitutionality of the program including a ratification of its authority from Congress and then ask the Court to give it an advisory opinion. There will be no actual defendant to provide facts to support a claim that he or she was injured in breach of some provision of the Constitution. Given how one sided this process is and the lack of any factual record demonstrating actual injury, I am having a hard time seeing how the FISA court could find any part of the program to be unconstitutional.
This is not only a sham, but I do not see how the FISA court could Constitutionally render the advisory opinion which Specter is seeking.
However, it appears to be a largely harmless sham.
Don't tell me - its another "magic bullet" that twists logic and reason to create a justification and "definitive answer" the our "great decider" is always right and can do no wrong.
ReplyDeleteOnce a tool of the power-elite, always a tool.
Repugs hated the line item veto when it was granted to Clinton. The took it to the SC and had it reversed as unconstitutional. Dems could do the same with such a blatant ex-post facto legalization of illegal acts. Am I wrong Glenn?
ReplyDeleteI have doubts that the amendments made public on July 11 cover the deal made public today on July 13. There are probably more amendments to come.
ReplyDeleteSettle down, Ka-bar. The part of Specter's proposal that grants jurisdiction to the FISA Court of Review is wholly distinct and separable from the part that grants amnesty to the law-breakers. There is nothing particularly objectionable in Specter's effort to clearly resolve the questions of standing and jurisdiction; and it is probably even worth it if the several pending cases against the NSA surveillance program (in each of which standing is an unresolved dispute) are conceded to be rolled into a single review by the FISA Court of Review.
ReplyDeleteOn the separate issue of amnesty, however -- rant on!
Speaking of lawbreakers, can anyone offer some INFORMED speculation as to why Fitzgerald won't seek to indict Rove?
ReplyDeleteGlenn:
ReplyDeleteThe idea that the President's allies in Congress would enact legislation which expressly shields government officials, including the President, from criminal liability for past lawbreaking is so reprehensible that it is difficult to describe.
Yeah, but these are the same a$$hats who passed that absurd "Save Terry Schiavo" bill. Not to mention the FBA and the "no gay marriages" amendments. They have no shame, no idea of what laws should be, and a profound distaste for the Constitution. For them, the only rule is "win at any cost, by any means necessary".
Cheers,
It makes me wish the USSR were still around.
ReplyDeleteIt is......
Actually the question I have is this. Will the content of the bill allow us to say with confidence that the program they've implemented is actually the program they SAY they've implemented.
The whole purpose of having a court supervise the proceedings it to guarantee that the spying is actually on suspects as opposed to political foes. Does this bill address that issue? If not then it's inadequate.
Can a president pardon someone who has not yet been charged with a crime?
ReplyDeleteI believe that Richard Nixon hadn't been charged with a crime when he received a "blanket pardon" from President Ford.
Would the review be moot if for instance, as Spectre aluded to today, the NSA is spying on everyone all the time, and so can't be under FISA since they couldn't possibly get warrants for everyone?
ReplyDeleteAnd as Steven Bradbury said yesterday, he believes presidential powers are at their zenith since he claims Congressional approval for what the president is doing.
Having skimmed the pdf, it doesn't appear that any of the July 11 amendments to the Specter bill refer to the major elements of the deal announced today.
ReplyDeleteNeed to keep looking...
wg said,
ReplyDeleteI don't know whether Specter is hopelessly naive or cleverly cunning judging by his recent proposals. Your take.
I have my money on cleverly cunning.
a) are they going to create a mechanism for authorizing spying on US citizens w/o having courts issue a specific individualized (particularized?) warrant? That is, are they going to authorize spying on anybody in US based on some generic FISC approved surveillance program.
We won't know for sure until we see the final bill, but every bill so far has included such a provision.
Or will collection of any "meta data" will be subject to something similar to what presumably governs "pen and trace" collection now.
Previous bills have language that separates "data" from "identifying information" and excludes the latter from any FISA oversight. Which, presumably, would give the President the ability to dispense with that hardcore check and balance called a "National Security Letter."
- make appointment of FISA judges subject to Senate approval (in closed meetings if required).
The last draft removed any limit to the number of FISC judges and gives the chief justice the power to appoint new judges when and where they see fit.
jao said,
From what I surmise is in this bill, I believe no bill at all would be preferable. Let the civil plaintiffs proceed as best they can under existing law, and keep trying to raise the political heat.
No bill would be much better. I am thinking it might actually be better if we cryogenically froze congress, let Bush run wild, and wake them up when this whole thing is over. The lawsuit consolidation provision may be more important than amnesty.
Arne Langsetmo said...
Yeah, but these are the same a$$hats who passed that absurd "Save Terry Schiavo" bill. Not to mention the FBA and the "no gay marriages" amendments.
I have a very bad feeling this bill is not going to pass on a strictly party line vote.
Carter granted amnesty to Vietnam-era draft dodgers.
ReplyDeleteCarter had the constitutional authority to pardon. Specter and the Congress do not.
Anonymous said...
ReplyDeleteSettle down, Ka-bar. The part of Specter's proposal that grants jurisdiction to the FISA Court of Review...
You settle down. I am no longer willing to listen to this bullshit. Grants jurisdiction to the FISA court my ass. They are supposed to already have jurisdiction...
Jesus, WTF is the point? I am done with this. I am out. You people keep fiddling away.
Good luck all - you are going to need it.
ka-bar
I have an idea. Congress should pass a law that retroactively makes everything in Watergate legal.
ReplyDeleteWe missed you, shooter242.
ReplyDeleteBut you misspelled "collusive."
ka-bar said,
ReplyDeleteJesus, WTF is the point? I am done with this. I am out. You people keep fiddling away. Good luck all - you are going to need it.
It is sometimes very hard to walk the line that separates enough anger to want to change things, and enough anger to just give up. The only advice I can give is "music and medicine." I wish you would stay. We need more pissed off people.
EVERYONE - Please read my Update II. I think Bart is right - those July 11 amendments are not the latest version that is being described by today's media reports as the Specter-WH agreement.
ReplyDeleteThe ACLU e-mailed me what they say is the Final Specter bill - the one that does contain the agreement - and it does seem different than those amendments.
Specifically, I do NOT think retroactive legalization is in the bill. But obviously, things are unclear- if anyone has more clarity, please post it or email me.
If political officials can violate the law, and then have their Congressional allies enact new laws to magically turn their crimes into legal acts, then the rule of law, by definition, does not exist.
ReplyDeleteYup. Why do you think everyone has been writing about Kafka? We weren't just whistling Dixie.
PS. Why have a FISA court? It's obsolete if this bill is passed, which it will be. No laws=no procedures=no neccessity for niceties as pretense.
All I can say is:
One. No assembly.
Meanwhile the Plame/Wilson lawsuit?
23 pages?
Hmmmmmmmm. DOA.
That's not bad enough. It's intentionally DOA.
But it'll serve its purpose: grist for FDL and HuffPo and another distraction as the you know what keeps chucking along. What's that I hear? Sounds like muffled silence. Maybe the dogs were all sent to Abu Graib to help terrorize the detainees.
baldie eagle:
ReplyDeleteCan a president pardon someone who has not yet been charged with a crime?
Yes. Example: Ford -> Nixon.
Then there was the flurry of Iran/Contra pardons (at the end of the Bush I administration, IIRC).
Cheers,
Jesus Christ. You have to all go read cynic's link: Wilkerson:Cheney's Office Cultivated a Pro-Torture Environment
ReplyDeleteCol. Lawrence Wilkerson, who served General Colin Powell in various capacities as a close aide for 16 years -- most recently as Powell's Chief of Staff at the Department of States, has written a short, matter of fact assessment of the torture proclivities during the Bush administration and the Vice President's central role in promoting a "pro-torture" national security/military environment....
I shouldn't have said all the dogs were gone. Wilkerson has been amazing these past few years.
the criminal behavior which the administration has engaged in for the last five years would suddenly and magically become legal
ReplyDeleteOr rather, they will maintain that it was already legal, but somehow needs to be made super-duper legal now.
.
OK. Hold the Kafka. But it does show how we've become so desensitized to utter insanity that nothing fails to shock anymore.
ReplyDeleteAs for "L'etat c'est moi" don't forget that's usually accompanied by a mentality of "Apres-moi le deluge."
Guess who gets to live in the deluge? Us.
Is every law subject to judicial review?
ReplyDeletebart, when you're faxing them back and forth, could you ask them at what price we should start shorting gold futures?
ReplyDeleteTime to get practical...
How willing is the Supreme Court going to be in finding Bush administration culpability during "a time of war" when congress eventually legalized the President's actions going forward.
ReplyDeleteIt could be argued that any grace period has long expired, but is the court going to blame Bush for the slow action of congress?
Technically there may be a point but realistically, amnesty or not, if congress incorporates Bush's program into FISA, I have serious doubts that there will be any non-civil judicial sanction for Bush's prior actions.
I apologize for my imperfect question. I mean to ask, is every law potentially subject to judicial review?
ReplyDeleteGrants jurisdiction to the FISA court my ass. They are supposed to already have jurisdiction...
ReplyDeleteNope. The FISC does not currently have authority to offer an advisory opinion on the constitutionality of FISA.
FISA currently grants that court authority to issue or deny surveillance orders, but that is a different issue from adjudicating the constitutionality of FISA itself without a case or controversy being brought before the court that raises the issue of constitutionality.
Glenn:
ReplyDeleteBut the ACLU just e-mailed me what they are calling the "Final Specter bill" -- meaning the bill described by news reports today -- and the version they sent to me (which is not yet available online) does not contain the retroactive provision. It does amend the penalty provisions of FISA so that it would now be permissible -- going forward -- to eavesdrop either under FISA or "under the constitutional authority of the executive." But at least from what I can tell, it does not contain that pernicious provision making that amendment retroactive to the 1978 enactment of FISA, the way the prior Specter bill did.
I am similarly confused how ACLU can consider Congress' recognition of the President's Article II power to direct and conduct intelligence gathering "retroactive" in any way.
These Article II powers to gather intelligence have existed since the Constitution was ratified. The only question was whether Congress did or did not have the Article I authority to limit those Article II powers through the FISA statute.
If Congress did have this alleged Article I power, then the proposed amendment of the FISA statute to remove restrictions on the President's Article II powers should not have any retroactive effect for acts committed while the old version of FISA was in effect.
If Congress does not have this Article I power, then FISA was unconstitutional as applied to the President's intelligence gathering from the outset.
What ACLU is afraid of is that their myriad of civil suits will get dismissed if the courts view Congress' recognition of the President's Article II powers as an admission that these powers always allowed the President to conduct the NSA program and they had to fix FISA to recognize that fact.
Such a fear seems well grounded.
On a more practical note, the courts will not want to get involved in a balance of powers argument between the elected branches once the branches have resolved their dispute in favor of the branch being sued by the ACLU. They will consider the matter moot.
[[If political officials can violate the law, and then have their Congressional allies enact new laws to magically turn their crimes into legal acts, then the rule of law, by definition, does not exist.]]
ReplyDeleteDidn't we enter this state once Congress understood that FISA was being violated and refused to do anything about it? For that matter, once Congress understood that there were no WMDs and refused to do anything about it. I mean, at this point, we're just haggling over price, as the saying goes.
Grand Moff Texan said...
ReplyDeletethe criminal behavior which the administration has engaged in for the last five years would suddenly and magically become legal
Or rather, they will maintain that it was already legal, but somehow needs to be made super-duper legal now.
All because of those damn liberals.
ka-bar...This is why honest, average people despise lawyers.
ReplyDeleteThis depends entirely on the lawyer and the type of practice he has. Conservatives have cut funding across the board for legal aid and other non-profit public interest law groups and capped liabilities and judgements against corporations and in malpractice suits. Ambulance chasers? My ass! Although personal injury lawyers are in it for the money. Non-profit and public interest lawyers are not. Some of the finest people I have known have been lawyers. Some of the scummiest people I have encountered have been lawyers. It's the same with any profession, including the oldest profession. The SFPD ran a sting op back in the 80's to stop a rash of thefts perpetrated by hookers against convention attendees and other tourists. They put a Japanese UC officer in a motel room wired for video to try and catch the perps in the act. What they got in just under 50% of the cases was the proverbial hooker with the heart of gold warning the guy not to be so careless with his gold watch and cash and credit cards. I bet you would find the same level of integrity and honesty among any other group, except politicians. 99% corrupt and crooked.
What ACLU is afraid of is that their myriad of civil suits will get dismissed if the courts view Congress' recognition of the President's Article II powers as an admission that these powers always allowed the President to conduct the NSA program and they had to fix FISA to recognize that fact.
ReplyDeleteSuch a fear seems well grounded.
I agree with you that that probably is their fear, but not that it is well-grounded. I don't see how a 2006 Congress can purport to adjudicate the conflict between a 1978 law and the President's violation of it. That is plainly an Article III question which only a court can resolve.
JAO - Does the "final" version you got from the ACLU retain this provision from Specter's previous committee substitute?
It DOES contain that provision, but it doesn't have the language about how that applies back to the date FISA was enacted. And without that retroactivity clause, all it is saying is that - going forward - nothing will restrict that authority. While you are right that it means there are really no more limits on presidential eavesdropping, it doesn't mean that the President is off the hook for violating the law in the past (which I know you care less about than what happens going forward).
If you want, e-mail me and I will forward you the version sent to me by the ACLU.
JAO - Does the "final" version you got from the ACLU retain this provision from Specter's previous committee substitute?
ReplyDeleteI don't know why, but this got posted twice - see my response above.
Did y'all hear about the new Milton Bradly version of Monopoly for Republicans.
ReplyDeleteAll of the cards say "Get out of Jail Free"
:-))
Given that the United States Constitution cannot be amended by congressional legislation, I'm somewhat amused at the proposed, what, statutory speculation?, that the Executive is vested with this "inherent authority" where warrantless searches are concerned. To whatever extent the Executive may be so vested vis-a-vis the 4th Am (an unsettled area of law), a statute can neither create nor vitiate such authority. And Hamdan makes clear that it doesn't exist (absent the very limited in time and scope exceptions a Youngstown Category III scenario would permit) in contravention of law.
ReplyDeleteSo just exactly what does that verbiage purport to be establishing?
This comment has been removed by a blog administrator.
ReplyDeleteNow it seems to be a good time to point out that what is happening here. People are actually reading the bill, trying to understand it, trying to decide rationally if it is good thing and discussing it with people of differing viewpoints.
ReplyDeleteAnyone who suggests that the only object of the game is to trash the President, has a serious problem with projection.
Hypatia said:
ReplyDeleteSo just exactly what does that verbiage purport to be establishing?
I had the same thought. Short of amending the Constitution to add powers to Article II, Congress can't just give the President extra-Constitutional powers. This legislation would be, at best, meaningless and, at worst, unconstitutional. If this was possible, what would stop the Congress from, for example, passing a statute that said they no longer had to abide by the First Amendment and could shut down all the country's newspapers based on the commerce clause or the power to "suppress insurrections"? Doesn't it go without saying that the Bill of Rights modifies the powers of the three branches and can't be summarily and willfully abrogated based on those powers? If not, why would the Bill of Rights even exist?
Of course, the Bushbots believe that the Constitutution DOES give the President virtually unlimited powers in a "time of Authorization of Military Force." But, then, I don't see why they'd be supportive of this legislation if it's so "clear" to them that the Constitution (in a few words) guarantees the President the power to violate the 4th amendment if he chooses.
PhD9 said...
ReplyDelete"Now it seems to be a good time to point out that what is happening here. People are actually reading the bill, trying to understand it, trying to decide rationally if it is good thing and discussing it with people of differing viewpoints.
Anyone who suggest that the only object of the game is to trash the President, has a serious problem with projection."
Yeah but I can kinda understand why the Republicans are so bitter. I would be too if I thought having sex would mean impeachment, and if I was taught that creation consisted of me having to have an operation to have have a rib removed. :-))
First question: Bush may be able to pardon the others in his administration, but he can't pardon himself, can he? I know he could resign and get President Ford to pardon him, but first he would have to resign. Would a Democratic president pardon him if he were prosecuted after 2008?
ReplyDeleteSecond question: When people hear that the President will authorize the illegal wiretaps, aren't they comfortable with that because they think that Bush is doing it personally on a case-by-case basis, and he is "such a wonderful person that we know he wouldn't wiretap anyone who shouldn't be tapped"? The reality is, or at least I think the reality is, that someone in the White House will be given the job of approving the wiretaps, but it won't be the President himself. Even if you trusted W 1000%, can you trust everyone that he works for?
The Watergate Scandal prompted the enactment of three statutory pillars to prevent a recurrence of the executive criminality of the Nixon administration: Campaign finance reform, the independent special prosecutor and FISA. We lost the independent special prosecutor in the wake of Ken Starr's malfeasance, when Sen. Fred Thompson declined to attempt to renew the legislation.
ReplyDeleteNow, when we are faced with another incarnation of nation-destroying criminality from the White House, the response of Congress--Specter and Feinstein[!] is to propose elimination of FISA. At the moment, Ka-bar is speaking for me.
Now, when we are faced with another incarnation of nation-destroying criminality from the White House, the response of Congress
ReplyDeleteI know that sometimes it hurts to care. But outrage, like any other avalanche, begins with a single snowflake.
I'm with Ka-bar and Reichstag burnning. It's time for action. The dems could make life very hard for the republicans. They went into special session and the Republicans threw a fit. No other usual bussiness until the presidents lawbreaking gets investigated!
ReplyDeleteGlenn I know you cannot respond to all that ask you questions but seriously, if you call this a constitutional cricis why not advocate more drastic measures? The dems can throw up procedural roadblocks and launch a media assult. I'm not saying we should stop informing and getting the word out so more people are aware but is it not time for action as well? At some point it will be too late. Some of us think we are getting close/already there.
Glenn Greenwald said...
ReplyDeleteWhat ACLU is afraid of is that their myriad of civil suits will get dismissed if the courts view Congress' recognition of the President's Article II powers as an admission that these powers always allowed the President to conduct the NSA program and they had to fix FISA to recognize that fact.
Such a fear seems well grounded.
I agree with you that that probably is their fear, but not that it is well-grounded. I don't see how a 2006 Congress can purport to adjudicate the conflict between a 1978 law and the President's violation of it. That is plainly an Article III question which only a court can resolve.
I agree that the Congress can not adjudicate anything.
However, courts do not like to get in the middle of balance of power disputes between the elected branches, especially when there are no identifiable citizens with a cause of action.
Additionally, the courts will not be eager to allow the ACLU to go on fishing expeditions through top secret materials in order to pursue speculative past damages claims for which they have no current evidence.
If Congress concedes the point on the President's Article II authority, a non activist court is likely to take the opportunity to punt on having to enter a ruling on the constitutional balance of power issue by granting a motion to dismiss on mootness because there is no prospective claim on which to grant an injunction and on claims for past damages because there simply is no evidence of actual past damages.
As to any criminal charges, Congress on either side of the aisle is hardly eager to impeach the President over spying in the enemy.
However, if fantasizing about such a possibility gives you a reason to live, by all means carry on.
Suppose we were talking about a different situation. Suppose we were talking about stop lights. The law says everyone must stop when the light is red, even if there is no one else there. However, ambulances and police cars can run the lights if they put their sirens and lights on to warn us.
ReplyDelete(Spying on Americans by their government is illegal unless they get a warrant from the FISA court, then it is allowed.)
The Bush administration wants the right to run the lights at any time without notifying anybody.
Congress is fixin' to make this legal.
Does this make sense?
Just tell Bush to stop at the red lights and in emergencies put the sirens on.
bart said...
ReplyDelete"As to any criminal charges, Congress on either side of the aisle is hardly eager to impeach the President over spying in the enemy.
However, if fantasizing about such a possibility gives you a reason to live, by all means carry on."
A bit of mis-direction there Bart. Spying on the enemy is not an impeachable offense, and I don't think that anyone here has claimed that it is.
However if investigation reveals that Bush has been spying on American citizens without evidence that they are in cahoots with the enemy that is a completely different matter.
My investments in Quantum Encryption are going to reward richly!
ReplyDeleteAnd think of all the back doors EVERYWHERE.
If there are no laws for government they become fair game.
Glenn, I sure hope someone in power is strongly considering your words.
This is not a road that America can survive going down.
Even though I am a pacifist, I really relate to ka-bar's posts also.
ReplyDeleteBut isn't there some other way except violence?
What about the Martin Luther King approach of peaceful civil disobedience and huge organized protests?
Futile? They worked once. Is that no longer possible?
Paul Rosenberg? What's your advice?
Shouldn't we be deluging our Congressmen, newspapers, and any other outlet we can find with protests, urging the defeat of this bill?
ReplyDeleteJaO writes: Crime Control and Safe Streets Act of 1968, Congress enacted the nation's primary wiretap statute, often called Title III, which outlawed electronic surveillance except by authorities with proper criminal search warrants. Congress carved out from that law any regulation of surveillance for foreign-intelligence purposes; in fact the 1968 statute included a provision that explicitly deferred to inherent executive power in that field.
ReplyDeleteJao, yes, that 1968 Act was what I had in mind when I made my inquiries. Justice Powell in UNITED STATES v. UNITED STATES DISTRICT COURT interpreted this language from that Act:
"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.
...as being nothing more than some sort of affirmation, or neutral statement leaving presidential power exactly where Congress found it. And then Powell (for the Court) proceeded to rule against the govt on the issue of warrantless surveillance in the domestic security context. It seems to me he was politely saying the language was a waste of ink.
He certainly ruled as if it were meaningless when it came to determining anything wrt what the President's constitutional authority actually is, and in any event, and as I'm sure you know, it was repealed with FISA. I do not understand what purpose is achieved in Congress's reverting to such kind of language.
But you are far more on top of this subject than I am, so it is entirely possible I am missing something.
This comment has been removed by a blog administrator.
ReplyDeleteOne of the quandaries we face is that vast tracts of the voting public do not think about these issues on a regular basis. Republicans like to take advantage of this fact, exploiting the general ignorance and attacking any intelligent and/or nuance driven thinking about defense as being "soft". It was a tactic developed in the 80's and it allowed vast quantities of pork to go to military contracters because anyone who opposed the spending could be characterized as "weak on defense" in campaign ads even if the spending in question was a collosal waste of money. Today the dynamic is slightly different but the results are the same. We spend vast sums for cruise missles and smart bombs but neglect armor for Humvee's or language/culture training for our soldiers. We invade Iraq, when the actual enemy we face operates freely in Pakistan. We make wrong choices on a continuous basis but because, for half of Americans it's their guy in charge and they don't really want to think that hard and the other half just wishes that their representatives had some balls to fight, but that's not going to happen either because point a: If you vote against it your "soft".
ReplyDeletePhd9 has it. The zombie like average American is our biggest problem. At least 50% of the American population is ignorant/uninformed and more concerned with their day to day lives than the constitution. And they scare easily. I have faith in the people though. Hell, 70% think he blowing it. If the spineless dems would grow some balls, stop being scared of what republicans will call them and tell the American people like it is, they would get it. So the Dems are our biggest problem.
ReplyDeleteGris Lobo said...
ReplyDeletebart said... "As to any criminal charges, Congress on either side of the aisle is hardly eager to impeach the President over spying in the enemy.
However, if fantasizing about such a possibility gives you a reason to live, by all means carry on."
A bit of mis-direction there Bart. Spying on the enemy is not an impeachable offense, and I don't think that anyone here has claimed that it is.
Sure you have. You have been claiming that Mr. Bush is a lawbreaker for not using FISA. FISA does not distinguish between citizens and non-citizens, enemy or friendly. Indeed, the only parties with possible claims concerning FISA are convicted al Qaeda supporters.
However if investigation reveals that Bush has been spying on American citizens without evidence that they are in cahoots with the enemy that is a completely different matter.
I am glad you brought that up.
Since you don't trust the members of the intelligence committees when they tell you that the NSA Program is not targeting innocent Americans, perhaps you will listen to the FISA court when it reviews the program.
There never was a scrap of evidence that the program ever targeted innocent Americans. This is another chance to put the lie to Glenn's favorite slander.
Yeah,
ReplyDeleteQuakers are violent terrorist suporters. I'm glad we're keping an eye on them.
There never was a scrap of evidence that the program ever targeted innocent Americans. This is another chance to put the lie to Glenn's favorite slander.
ReplyDeleteWe agree that this is the question of the hour. If you trust the administration then there is no problem. If you don't trust the administration then there is a big problem. I came of age during the Nixon administration. You already know where I stand.
Independent of the legal questions involved, there is the broader question of what direction do we want our country to move toward. You vote belligerent. I vote peaceful. I am deeply thankful that we're both allowed to express our views freely.
But as soon as my ability to express my opinion freely is threatened, then there should be hell to pay. And I see our country headed in that direction and I see you cheering it on.
: )
ReplyDeleteURGENT!
ReplyDeleteEven as the administration exploited this Official Story (or "Official Conspiracy Theory") as the pretext to launch new wars long in the making, independent researchers began to accumulate a vast body of evidence suggesting a different narrative for 9/11: that of the Inside Job.
The 9/11 events and the anomalies in the official story raised Unanswered Questions about:
- the unprecedented failure of the US air defense system on the morning of the attacks;
- the AWOL military chain of command during the actual attacks, including the inexplicable behavior of the presidential entourage;
- the seeming impossibility of official claims with regard to Flight 77;
- the evidence that Flight 93 was shot down;
- contradictions and dubious evidence in the official claims about the alleged hijackers and masterminds, and doubts about their real identities;
- signs that the alleged hijackers enjoyed high-level protection against discovery by honest investigators;
- evidence that the alleged hijackers were financed by states allied with US intelligence;
- suspicious and massive international financial trades suggesting foreknowledge of the attacks;
- widespread signs of official foreknowledge and, in fact, advance preparation for the 9/11 attack scenario;
- the long-running links between Islamist fundamentalist terror cells and US covert operations, dating back to CIA support for the anti-Soviet mujahedeen and Osama Bin Ladin himself;
- the demolition-like collapse of the Twin Towers and of a third skyscraper, WTC 7;
- and questions concerning who could have logically expected to derive benefit in the aftermath of a massive attack on the United States.
The suspicions received further confirmation a few weeks after September 11th, with the arrival of anthrax letters targeted only at opposition politicians and media figures, and timed to coincide with the introduction of the USA PATRIOT Act.
Google: 9/11 inside job
KILL BILL
ReplyDeleteor
THIS NIGHT...
We wrote a winter song...
I have a proposal.
I understand that I am not the best person to be offering Glenn advice. I also realize that any chips I may have saved during my time here have been spent rather quickly since the "Townhouse" affair, but I think this might work. It is at least worth talking about.
Marshal the "Advertise Liberally" crew to defeat this bill.
The advantages of this as a single issue to rally around
- This is a simple yes or no issue that can easily be framed as a bill that legalizes spying on US citizen without a warrant. The defenders of this bill are left with the task of trying to argue the terse technical and legal details.
- We are right up against an election. Citizen power is maximized during this period.
- This is the one aspect of all of Bush's "extralegal" activities that can directly apply to the citizenry. People see gitmo and secret prisons as not applying to them.
The advantages to the "Advertise Liberally" network
- Potential of increased traffic/revenue/influence provided by the flash fire possibility this issue brings.
- Potential of direct interaction with legislators.
- No long term commitment. This issue is going to be resolved on way or another in a short time frame.
- Demonstrate the ability to kill legislation thus bringing increased power and prestige.
- Doesn't require mass citizen participation only the fear of losing an election.
The advantages to Glenn and the crew here
- Killing the bill.
- Increases public awareness of NSA spying and potentially other issues.
- Force dead tree publishers to cover the issue.
- Tangible fight in which to channel frustration/despair/hope.
- Chance to see if the "children of This day" are worth a damn.
The advantages to Glenn's blog/book
- TONS of free PR. (the best kind)
- Increased traffic and book sales.
- Potential for increased power and prestige.
- Interview talking point and call to action. ("Go to glenngreenwald.blogspot.com to get involved!")
Disadvantages
- Bill gets passed anyway
- Pissed off institutional democrats
I would love anyone to add bullet points wherever they see fit.
What do you think Glenn? A couple strategy emails to the right people with the right sales pitch. Win/Win for almost everyone, hard to say no....
KILLTHISBILL.COM is available. I am in for an initial $500. Hard to say no...
----
To the west there is an ocean...
There's a mountain on the right...
Now will you walk away
or take the blame for the unfortunately-named
children of This day... Children of This Night...
I think I touched on the issue of whether the Administration's Yoo-Power-Fantasies hold any water in light of the Fourth Amendment. I maintained then, as I do now, that the Fourth Amendment modifies the state of affairs between both Congress and the Executive.
ReplyDeleteThe new bill still fails (assuming it passes) to correct the illegality as regards the Fourth Amendment.
The President, and his cronies, are safe from prosecution and civil suit. The President is given absolute immunity in Article II against civil and criminal liability for acts performed while in office. Qualified immunity extends to his agents, e.g., the NSA operatives actually running the program. The only constitutional means I can see of pursuing the inquiry would be impeachment. (The question of criminal prosecution may be open as a constitutional question, but it's not likely to be decided against this, or any other, president.)
I have to wonder whether the bill would prevent the President during an impeachment. The President would no doubt invoke the law as his defense, which raises the question as to constitutionality. Congress seems to lack the power to issue a pardon for crimes already committed. Moreover, by signing the the bill into law, wouldn't the President simply be issuing himself a pardon, which he is expressly prohibited from doing by the Constitution...
If I perceive the issue correctly, then, it appears that this bill is really just political fluff and does little more than provide political cover for the President and his neo-con cronies. If the Dems seize control of the House, it may be of little real use to him.
HWSNBN is an eedjit. Not for believing the following, but for being so stoopid that he thinks that we'll swallow it:
ReplyDeleteSure you have. You have been claiming that Mr. Bush is a lawbreaker for not using FISA. FISA does not distinguish between citizens and non-citizens, enemy or friendly....
50 USC § 1801:
(f) "Electronic surveillance" means -
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
...
(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8),...
... Indeed, the only parties with possible claims concerning FISA are convicted al Qaeda supporters.
HWSNBN is in complete Loony-Land here. But he persists in trying to tell us that black is white. We're haven't been buying the last fifty-seven times, and we aren't now.
[Gris Lobo]: However if investigation reveals that Bush has been spying on American citizens without evidence that they are in cahoots with the enemy that is a completely different matter.
Of course, without courts looking at the evidence supporting specific surveillances, we wouldn't know, would we? But HWSNBN doesn't want the courts to do this task that they've done for the last 200 plus years....
I am glad you brought that up.
Since you don't trust the members of the intelligence committees when they tell you that the NSA Program is not targeting innocent Americans, perhaps you will listen to the FISA court when it reviews the program.
HWSNBN gives no cites or quotes to support this assertion, but since no one is showing Congress the actual evidence on all specific surveillances, there's no way they would know. We just have to take the maladministration's word for it. And seeing as the maladministration is the biggest pack'o'liars in Warshington, that's a sucker bet.
There never was a scrap of evidence that the program ever targeted innocent Americans....
No, we just had the gummint surveilling Quakers!...
... This is another chance to put the lie to Glenn's favorite slander.
Only if we have open hearings and testimony under oath from the maladministration.
Cheers,
in fact the 1968 statute included a provision that explicitly deferred to inherent executive power in that field.
ReplyDeleteWell, not exactly. The statute explicitly did not decrease whatever inherent executive power existed to engage in surveillance for foreign intelligence purposes. That leaves unaddressed the question of what power the executive had before (and after) the statute.
Hypatia:
ReplyDelete... as I'm sure you know, it was repealed with FISA. I do not understand what purpose is achieved in Congress's reverting to such kind of language.
C'mon, Hypatia. The answer's right there in your sentence.
<polka music *boom*bah*boom*bah>
"Dirty tricks are here again,
let's tap the phones, not beer, again...."
Cheers,
FISA does not distinguish between citizens and non-citizens, enemy or friendly.
ReplyDeleteFalse.
Bart,
ReplyDeleteIn light of the USA Today story, I think you need to expand the wording of this quote in order for it to be accurate.
There never was a scrap of evidence that the program ever targeted innocent Americans. This is another chance to put the lie to Glenn's favorite slander.
If a president has the inherent authority to violate FISA, doesn't he also have the inherent authority to anything he damn well pleases including (say) boiling his enemies? Isn't that the basic definition of tyranny?
ReplyDeleteBrian Boru
These endless debates on the constitutionality of FISA may become moot if Specter's bill passes, but is hasn't passed yet. Arne Lagsetmo urged me not to give Bart any quotes till he give us quotes, but the debate on the subject is getting so redundant, I think it is time to inject some new material. (Granting, of course, that Specter has already made a head start on that).
ReplyDeleteSo here are your quotes. From Megahey. This case was heard in the District Court by Judge Sifton and involved gunrunning to the IRA:
"The Act merely directs judges to make findings regarding the time, persons, and places a which the surveillance is directed and regarding governmental compliance with the procedures of the Act, in accordance with the Act itself. The determinations to be made are not unlike detemrinations of fact and law made throught the judicial process in a wide variety of other contexts." The judge apparently does not agree with Bart that the judiciary is incompetent to police foreign intelligence surveillance if Congress give adequate directions on how to do so.
Duggan is actually an appeal of Megahey, in which the Court of Appeals upheld the District Judge's rulings. It further held:
"If the target of the requested surveillance is a United State person, the judge must merely find that the certification is not 'clearly erroneous' on the basis of statements made in the application [statutory cite]; and if the target is not a United States person, the judge need only find that the application contains all statements and certifications required by [statutory cite]. We agree with Judge Sifton that such limited review by the FISA Court does not unduly inject the courts into the making of foreign policy."
This certainly implies, if it does not state outright, that the courts are not unduly infringing on executive prerogative. Feel free to visit my blog for more discussion of these cases (no links though, I'm afraid).
Bart will now set out to demolish these quotes. But Arne is right. Give us quotes to demolish, or I will consider you outlawyered by an enlightened layperson.
Arne Langsetmo said...
ReplyDeleteHWSNBN is an eedjit. Not for believing the following, but for being so stoopid that he thinks that we'll swallow it:
Bart: Sure you have. You have been claiming that Mr. Bush is a lawbreaker for not using FISA. FISA does not distinguish between citizens and non-citizens, enemy or friendly....
50 USC § 1801:
(f) "Electronic surveillance" means -
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
...
(i) "United States person" means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101(a)(20) of title 8),...
Did you even read my post and then the portion of the statute which you posted?
It states exactly what I stated it did.
The statute requires a warrant for US persons.
US Persons include citizens and non-citizens and makes no distinction in the definition concerning the enemy.
Bart:... Indeed, the only parties with possible claims concerning FISA are convicted al Qaeda supporters.
HWSNBN is in complete Loony-Land here. But he persists in trying to tell us that black is white. We're haven't been buying the last fifty-seven times, and we aren't now.
Hero, the only named first parties who have made claims are convicted terrorists supporters hoping to have some evidence thrown out.
ACLU and the other ilk are making civil class action claims on behalf of unknown persons and have not a whit of evidence of any direct damages.
Bart: Since you don't trust the members of the intelligence committees when they tell you that the NSA Program is not targeting innocent Americans, perhaps you will listen to the FISA court when it reviews the program.
HWSNBN gives no cites or quotes to support this assertion, but since no one is showing Congress the actual evidence on all specific surveillances, there's no way they would know. We just have to take the maladministration's word for it. And seeing as the maladministration is the biggest pack'o'liars in Warshington, that's a sucker bet.
I have posted quotes from the Donkey co chair of the House Intel Committee and others...as you well know.
The intel committee members have been briefed at NSA and seen the program in action on real numbers...you know this as well so you are lying again.
Feel free to post a single quote from anyone actually briefed on the program that they even suspect that innocent Americans are being targeted. Otherwise, admit that you are full of crap.
There never was a scrap of evidence that the program ever targeted innocent Americans. This is another chance to put the lie to Glenn's favorite slander.
If you have evidence otherwise, present it. Otherwise, slink away as the lying sh!t stirrer you are.
Did we ever get the story on why one of the "guest" bloggers last month used a handle that paid homage to the largest maker of sewerage pipes in the world - HUMES
ReplyDeleteEnlightened Layperson said...
ReplyDeleteSo here are your quotes. From Megahey. This case was heard in the District Court by Judge Sifton and involved gunrunning to the IRA:
"The Act merely directs judges to make findings regarding the time, persons, and places a which the surveillance is directed and regarding governmental compliance with the procedures of the Act, in accordance with the Act itself. The determinations to be made are not unlike detemrinations of fact and law made throught the judicial process in a wide variety of other contexts."
The judge apparently does not agree with Bart that the judiciary is incompetent to police foreign intelligence surveillance if Congress give adequate directions on how to do so.
The Courts which considered whether the 4th Amendment applied to intelligence gathering specifically distinguished between judicial competence in deciding whether criminal evidence collection was reasonable and whether intelligence gathering was reasonable.
In United States v. Butenko, 494 F.2d 593 (3d Cir. 1974), the Court noted that while the “Constitution contains no express provision authorizing the President to conduct surveillance . . . it would appear that such power is . . . implied from his duty to conduct the nation’s foreign affairs.” Id. at 603. In reaffirming the legality of warrantless foreign
intelligence electronic surveillance, the Butenko court further noted:
[F]oreign intelligence gathering is a clandestine and highly unstructured activity, and the need for electronic surveillance often cannot be anticipated in advance. Certainly occasions arise when officers, acting under the President’s authority, are seeking
foreign intelligence information, where exigent circumstances would excuse a warrant. To demand that such officers be so sensitive to the nuances of complex situations that they must interrupt their activities and rush to the nearest available magistrate to seek a warrant would seriously fetter the Executive in the performance of his foreign affairs duties. Id. at 605 (emphasis added).
In United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), the court observed:
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, [United States v. U.S. Dist. Ct., 407 U.S. 297 (1972)] “unduly
frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy. A [uniform] warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, [and] in
some cases delay executive response to foreign intelligence threats. . . .
Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs . . . . Just as the separation of powers in Keith forced the
executive to recognize a judicial role when the President conducts domestic surveillance, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign
intelligence surveillance.
Duggan is actually an appeal of Megahey, in which the Court of Appeals upheld the District Judge's rulings. It further held:
"If the target of the requested surveillance is a United State person, the judge must merely find that the certification is not 'clearly erroneous' on the basis of statements made in the application [statutory cite]; and if the target is not a United States person, the judge need only find that the application contains all statements and certifications required by [statutory cite]. We agree with Judge Sifton that such limited review by the FISA Court does not unduly inject the courts into the making of foreign policy."
This certainly implies, if it does not state outright, that the courts are not unduly infringing on executive prerogative. Feel free to visit my blog for more discussion of these cases (no links though, I'm afraid).
Bart will now set out to demolish these quotes. But Arne is right. Give us quotes to demolish, or I will consider you outlawyered by an enlightened layperson.
Why would I demolish them? Judges have different opinions on their own competence in certain areas. I just gave you the opposing judicial opinion to which I was referring.
BTW, I appreciate the quotes as I did not have ready access to the cases.
Bart said:
ReplyDeleteA bit of mis-direction there Bart. Spying on the enemy is not an impeachable offense, and I don't think that anyone here has claimed that it is.
Sure you have. You have been claiming that Mr. Bush is a lawbreaker for not using FISA. FISA does not distinguish between citizens and non-citizens, enemy or friendly. Indeed, the only parties with possible claims concerning FISA are convicted al Qaeda supporters.
More attempted mis-direction Bart. you are trying to confuse the issue with the terms citizen, non-citizen when in fact a spy can or could be either. Just because a person is a citizen deosn't mean they can't be a spy. Aldrich Ames and Jonathon Pollard just to name a couple. Bush is a lawbreaker for not using FISA and has admitted doing so. Fisa is by law the determiing authority as to whether a warrant is issued against a suspected spy or is denied because the government cannot show a connection between the person they want to surveil and any illegal spying activity.
"Since you don't trust the members of the intelligence committees when they tell you that the NSA Program is not targeting innocent Americans, perhaps you will listen to the FISA court when it reviews the program."
The intelligence committees were not informed for five years about the program. Only the gang of eight who were gagged from making any statement at all. The same has applied to the subsequent subcommittee and finally the full intelligence committees only recently. So with out their having any knowledge and the subsequent gag orders how could they have made any statement as to the legality or non-legality of the program?
"There never was a scrap of evidence that the program ever targeted innocent Americans. This is another chance to put the lie to Glenn's favorite slander."
More bulls*t from the great defender:
Tuesday 14 February 2006
Washington - A former NSA employee said Tuesday there is another ongoing top-secret surveillance program that might have violated millions of Americans' Constitutional rights.
Russell D. Tice told the House Government Reform Subcommittee on National Security, Emerging Threats and International Relations he has concerns about a "special access" electronic surveillance program that he characterized as far more wide-ranging than the warrentless wiretapping recently exposed by the New York Times but he is forbidden from discussing the program with Congress.
By Barton Gellman, Dafna Linzer and Carol D. Leonnig
Washington Post Staff Writers
Sunday, February 5, 2006; A01
The Bush administration refuses to say -- in public or in closed session of Congress -- how many Americans in the past four years have had their conversations recorded or their e-mails read by intelligence analysts without court authority. Two knowledgeable sources placed that number in the thousands; one of them, more specific, said about 5,000.
Tuesday 16 May 2006
ABC News reported on Monday that a senior federal law enforcement had revealed that the government is now tracking phone calls made by journalists from the New York Times, Washington Post and ABC News. We speak with Brian Ross, chief investigative reporter at ABC News.
On Monday, ABC News reported the government is tracking the phone numbers dialed from major news organizations in an effort to root out confidential government sources that speak to reporters. The media groups include the New York Times, the Washington Post, and ABC News itself. Government leaks have led to front-page stories detailing the Bush administration’s spy program and the CIA’s network of secret prisons in Eastern Europe. The leaks have greatly angered Bush administration officials.
And then of course there are those dangerous Quakers and the Arizona grocer convicted in a baby food theft ring with the use of warrantless wiretaps.
If Bush's surveillance programs are indeed to be used to locate and prosecute terrorist's there would be no logical reason why the FISA court could not oversee the operation of said spying(any technical matters can be addressed.) But if the programs are being used for some less honorable purpose such as spying on political enemies (I.E Democrats), then it becomes obvious why the administration desires no oversight. Such a program would not only be immoral and wrong it would also be unAmerican (a longtime American buzzphrase has been "fairplay".) No American wishes for possible terrorists to go undetected. Those trying to suggest that citizens desiring oversight on government wish for the terrorists to operate unobserved and unopposed are being illogical and are perhaps engaging in dishonesty.
ReplyDeletebart: There never was a scrap of evidence that the program ever targeted innocent Americans. This is another chance to put the lie to Glenn's favorite slander.
ReplyDeleteIf Glenn made such an assertion, I have to admit I haven't seen it. What concerns me as a citizen about such a program is not so much what has been done with it as what can be done with it, absent any meaningful oversight, or any guarantees, legal or otherwise, that its victims can ever seek redress.
If the executive branch is, for national security reasons, not obliged to tell anyone who they're spying on, or why they're spying on them, or what they have done or will do with the information the spying provides them with, there's nothing preventing them for using it to -- for example -- intimidate political opponents, just as LBJ or Nixon did. (And I'm not making this part up. I have personal experience of it during the Vietnam era. I won't bore anyone with the details.)
The signal difference, for me, between what we face now, and what we've faced under earlier administrations. is that given what we already know about the present administration's sanctification of the practice of holding political prisoners incommunicado (even denying that they're being held), extraordinary rendition, secret prisons, torture, etc., someone falsely accused won't get his day in court. In fact, there's every possibility that he won't even know what he's been accused of, and no one else will necessarily know he's been accused.
Moreover, large-scale data mining, can be sorted all sort of ways to give an incumbent executive distinctly political advantages that have nothing to do with national security, and that no one else will even know it has acquired.
Not being a lawyer, as so many who comment here are, I'm not competent to discuss the legal and consitutional questions involved in detail, but as a citizen, I can say this:
If the Congress legalizes these practices, the United States will most definitely not remain an even imperfectly democratic country for long, not matter what you think the Constitution says.
HWSNBN picks at the lice infesting his cranial regions:
ReplyDeleteDid you even read my post and then the portion of the statute which you posted?
Yep.
It states exactly what I stated it did.
Nope.
The statute requires a warrant for US persons.
Yep. See below.
US Persons include citizens and non-citizens and makes no distinction in the definition concerning the enemy.
HWSNBN ignores the second section (50 USC § 1801(i)) that I quoted. "United States persons" are citizens and resident aliens. HWSNBN tries to pretend that non-citizens who are not resident aliens are treated the same under the law. They are not. HWSNBN is wrong. Any and all citizens are covered by (certain) FISA provisions, while only resident alien non-citizens are. That's a fact.
HWSNBN sees things that no one else can see:
[HWSNBN]:... Indeed, the only parties with possible claims concerning FISA are convicted al Qaeda supporters.
[Arne]: HWSNBN is in complete Loony-Land here. But he persists in trying to tell us that black is white. We're haven't been buying the last fifty-seven times, and we aren't now.
Hero, the only named first parties who have made claims are convicted terrorists supporters hoping to have some evidence thrown out.
Huh? Which "convicted al Qaeda supporters" have made any such claim? In particular, which have made such a claim "concerning FISA? HWSNBN doesn't just get to make shite up to "support" his whack "argument" du jour.... Not without being called on it.
But I'd note that there's a number of lawsuits have been filed on the non-FISA surveillances, and most of them by people who would sue HWSNBN's pants off if he insists on calling them "convicted al Qaeda supporters".
I'd also note that he seemed to be claiming that the only potential claimants "possible" (not those that had actually made such claims already) are "convicted al Qaeda supporters". That seems to have been his original claim here, and that claim is obviously false.
Words have meaning. We're not Humpty-Dumpty here; we're Alice, and think that HWSNBN's weaseling and eliding of his statements is total rot.
ACLU and the other ilk are making civil class action claims on behalf of unknown persons and have not a whit of evidence of any direct damages.
HWSNBN needs to get out and read a bit more. Maybe he thinks that the likes of Christopher Hitchens are "unknown" (which may be a thought...), but that's just HWSNBN's ignerrent mistake.
[HWSNBN]: Since you don't trust the members of the intelligence committees when they tell you that the NSA Program is not targeting innocent Americans, perhaps you will listen to the FISA court when it reviews the program.
[Arne]: HWSNBN gives no cites or quotes to support this assertion, but since no one is showing Congress the actual evidence on all specific surveillances, there's no way they would know. We just have to take the maladministration's word for it. And seeing as the maladministration is the biggest pack'o'liars in Warshington, that's a sucker bet.
I have posted quotes from the Donkey co chair of the House Intel Committee and others...as you well know.
None of them has stated that they've been given the details on who is being surveilled and on what basis (in fact, the opposite). All they have to rely on is the words of a proven mendacious maladministration in rather limited briefings. I want quotes from Congressmen that say they've reviewed all the surveillances (as a FISA court would have to do) and can assure us themselves that no one has been targeted that is not an "innocent American[]". I'd note that the FBI has already complained that they've been given "leads" to run down, probably based on such non-FISA snoops, and are angry about having to waste resources having to run dowm mostly dead ends.
Feel free to post a single quote from anyone actually briefed on the program that they even suspect that innocent Americans are being targeted. Otherwise, admit that you are full of crap.
The fallacy of shifting the burden of proof, a favourite of HWSNBN. It was his implicit claim that they've been able to say from personal knowledge (by dint of their actual "oversight", not just the maladministration's word) that "the NSA Program is not targeting innocent Americans". HWSNBN was asked for a quote to support this. I don't have to prove a negative; the burden is on him.
HWSNBN finishes with a flourish:
[HWSNBN oddly quotes himself!]:
[HWSNBN, from a previous post]: There never was a scrap of evidence that the program ever targeted innocent Americans. This is another chance to put the lie to Glenn's favorite slander.
Then he replies to himself:
If you have evidence otherwise, present it. Otherwise, slink away as the lying sh!t stirrer you are.
Wow.
Slinking away is hardly my forte. It is HWSNBN that tucks his tail and moves on to the next thread when he's getting his a$$ waxed. Once again, though, I didn't make an assertion contrary to his claim. As such, it's he that remains with the burden of proof. I would call his attention to the FBI complaints, though, as being potential "evidence" that all is not as it should be (and then there's the Quakers....) But calling HWSNBN's attention to anything that he doesn't want to hear is like teaching a pig to sing; doomed to failure, and it only annoys the pig ... but then again, I guess I'll have to take what comfort I can from my efforts. ;-)
Cheers,
HWSNBN:
ReplyDeleteBTW, I appreciate the quotes as I did not have ready access to the cases.
DUIs are slow in Colorado Springs, so HWSNBN's had to cut back on non-essentials such as Lexis/Westlaw subscriptions.....
But this explains HWSNBN's reticence to actually quote from the holdings for his famous "six cases" that have upheld the preznit's inherent power to play snoopedy-snoop without adult supervision. He saw the list somewhere, never read the cases, and keeps parroting the "spin". Which, of course, is what he did in his misquote (lifted unattributed from the Watergate Minority Report). Any enterprising people might go check his "law review article" and see if the scholarship there was similarly shoddy. Wouldn't be surprised if there was enough plagiarism there to warrant an ethics complaint ... assuming he actually did get a law review article published.
Cheers,
shooter242,
ReplyDeleteAre you sure the police can arrest someone without first consulting a judge? This sound pretty radical.
If this list is true, then I must thank you. I, an American citizen, currently maintain a dock on my property which I was using to stash illicit copies of "It's a Wonderful Life" bound for sale in the Chinese DVD market. I was planning to make my deal at a public place, (Spenser's gifts--near the naughty games) before getting stoned and attending classes at the Learning Annex. (Lambada: Forbidden No More, Using Lotus Quattro, Intro to Flower Arrangement - very chick heavy)
Despite my constant fatty sparkage, I was obviously not nearly paranoid enough. Your warnings will be handsomely rewarded -- I will burn you a CD with more software than you could ever use. Wink Wink. Nudge Nudge. Say no more. I hope you don't get in trouble publishing this because it reads like a list of how not to get caught. If you got it from the NYT you should be fine.
YOU ROXORS
shooter242: Personally I'd be much more afraid of the IRS than a wiretap.
ReplyDeleteAnd why would that be? You have absolutely nothing to fear, unless you've been doing something wrong, at least that's what you and bart have been telling us all along, nu?
I was serious about my question, by the way. If every law is potentially subject to judicial review, then why the hell does anyone continue to repeat the tripe "inherent Article II" powers? If a bill says the President can't do something, and it becomes law, then the only way for a President to avoid breaking said law is to go through the courts and have the law invalidated (or have Congress repeal the law (a la Specter) and sign that bill, not assert some "inherent" baloney and continue breaking said law.
ReplyDeleteAm I wrong here? Why can't this argument die? And P.S. I don't care if the Clinton Administration argued otherwise, I'd say they'd be wrong, too.
shooter242:
ReplyDeleteAs a public service, and brief respite from watching lawyers debate how many angels can dance on the head of a pin, here is some information for the rest of us.
This is a good FISA faq from the senior counsel at EFF, and below is a list of instances currently where warrantless searches are legally SOP and have been for quite some time....
What makes this president think he can invade the privacy of Americans without a warrant?
I don't know. Could it be the powers, long recognized by federal law, to:
* Detain American citizens for investigative purposes without a warrant;...
I've tossed in my two cents on "exigent circumstanes" and other such exceptions to the Fourth Amendment. While I recognise that such exceptions do currently exist, I disagree with some of them (and I argue on that link that many exceptions have less to do with the "exigent circumstances" than they do with making police work just a little bit easier ... and more totalitarian). The "exceptions" end up swallowing the rule if you keep letting more and more of them sneak through.
OTOH, many of the examples McCarthy gives have nothing to do with the Fourth Amendment, and are thus irrelevant.
Cheers,
ha - from the blog don't go into the light
ReplyDelete"excellent and very thorough statutory analysis"?
Yes, Greenwald's at it again, showing us the sloppiness of thought that goes into his views of anything done by Republicans:
Marty Lederman has an excellent and very thorough statutory analysis of the whole travesty, explaining that Specter "introduces a bill, with Administration blessing, that gives the Administration everything it ever wanted, and much, much more."
But if you follow the link to this "thorough statutory analysis", you see that it's anything but, as Mr. Lederman freely admits:
The bill is difficult to follow, almost unreadable. I must confess that I've only given it a ten-minute once-over, which is probably more than it deserves.
Greenwald's post only makes sense if you replace the breathless hyperbole about "spying on Americans" and replace it with the truth - "spying on foreign powers and agents of foreign powers". Context reveals all.
Continuing:
ReplyDeleteThen there's these examples from McCarthy's NRO piece:
Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;
The "Terry" pat-down. Limited (and should be further limited) to checks for weapons.
Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;
Ummm, nope. Simply not true.
Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;
Spotting things that are in "plain view" is not a "search".
Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;
Dunno what McCarthy is alluding to here.
Then there's these:
Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;
The "automobile" exception. Inspired by the equally lame-brained Prohibition. Covered in my link briefly. The "War on Drugs" (including alcohol at one time) has perverted Fourth Amendment law as well as screwed up the entire judicial and penal system big-time.
Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car—regardless of whether there is probable cause to search the container itself;
More of the same.
Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;
If someone consents, there's no harm, no foul. There's disagreement as to what "consent" means, and who gets to "consent", though. Oftentimes, the judicial interpretation of "consent" is geared towards finding ways for the police to avoid a warrant requirement, rather than doing what it should: Trying to defend our Fourth Aemndment rights. In asking who gets to consent, they ought to ask whose rights are being violated.
Cheers,
I said:
ReplyDeleteIf someone consents, there's no harm, no foul. There's disagreement as to what "consent" means, and who gets to "consent", though. Oftentimes, the judicial interpretation of "consent" is geared towards finding ways for the police to avoid a warrant requirement, rather than doing what it should: Trying to defend our Fourth Aemndment rights. In asking who gets to consent, they ought to ask whose rights are being violated.
IOW, if there's two people, it doesn't make it any less a violation of one person's rights if the other has no privacy interest they want to protect. The first person can't speak for the second person's rights (or oughtn't be able to), and if the second person's rights would be violated, that should be determinative even if the first person has no objection to a search.
Cheers,
Putting aside the issue of retroactive amnesty (since it's not clear the bill does that), what is the rationale for Specter to create a bill that asks the FISA court to rule in secret about the constitutionality of a program, and then legalize the program going forward?
ReplyDeleteThe rationale could be simple. Specter knows the program is illegal. Bush and Cheney know it's illegal, and they know that they are at risk for prosecution. They want to delay or impede the publication and dissemination of this information to the American public
Isn't that known as conspiracy to obstruct justice?
I finally found another blog I like and this is it
ReplyDeleteWarning: commies, fascists, statists, socialists and especially authoritarians --don't go: you won't like it. Save your time.
But I really like this site. I intend to check it out every day from now on.
I guess we should follow the advice we give Israel....proportionate response..in fact that is what the Democrats do best...always a moderate response as opposed to a punishing response...and guess where we end up...on the road to fascism...the similarities are mind boggling...the great brains of the left...mired in political correctness and fear...and incapable of fighting for their ideals in a passionate and disproportionate way.
ReplyDeleteI can't imagine another ideal more fundamental to our constitution...and the Democrats and the proportional left can't get traction. I say that the left's failure to support Israel mirrors its response to right wing ideology...