What Specter's Op-Ed actually does is provide a powerful reflection of the extent to which the Congress has been reduced to an empty, symbolic vessel which is permitted to act only to the extent it retroactively endorses the President's conduct. The outright debasement of the Congress by the administration is additionally reflected by the fact that Specter is actually expressing gratitude for the President's willingness to allow courts to adjudicate the constitutionality of his conduct, as though that is something the President has the power to prohibit. Here is Specter explaining what he considers to be the grand concession he won from the White House:
President Bush's record of seeking to expand Article II power has been a hallmark of his administration. The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush's personal commitment to submit his program to FISC is therefore a major breakthrough.
This is as incoherent as it is alarming. With the Specter legislation, Bush has not agreed to allow the FISA court, or any other court, to adjudicate the legality of his eavesdropping program (meaning whether he has been violating the law for the last five years by ordering warrantless eavesdropping). To the contrary, the Specter bill would all but kill pending litigations around the country which allege that the President acted criminally by violating FISA. Nor would the Specter bill require the President to submit eavesdropping requests to courts for approval. To the contrary, the bill expressly allows the President to eavesdrop on Americans with no judicial oversight.
The sole question which a court will decide under this claimed oral agreement between Specter and the President is whether warrantless eavesdropping violates the Fourth Amendment. Thus, what Specter is celebrating here is that the President courteously agreed to "allow" a federal court to decide whether the eavesdropping he has ordered on Americans violates the Constitution's prohibition on searches and seizures in the absence of probable cause warrants. Since when does a President have the option to prohibit judicial determinations as to whether his conduct violates the Constitutional rights of American citizens? In what conceivable way can it be said to be a "concession" that George Bush has deigned to permit a federal court to rule on the constitutionality of the eavesdropping he ordered?
The Bush administration, as is well known by now, believes that the President has the power to violate laws enacted by Congress. But not even George Bush, Dick Cheney or John Yoo have argued that he can override specific constitutional protections guaranteed by the Bill of Rights. All Bush has "agreed to" is to conditionally "allow" a court to decide if his eavesdropping violates the 4th Amendment. Expressing gratitude for that or acting as though it is some sort of concession is to now vest the President not merely with the power to violate Congressional law, but also the Bill of Rights.
Worse still, Specter endorses a theory of radical presidential power which (a) has been rejected for 50 years in this country (since Youngstown); (b) the Supreme Court just again emphatically rejected in Hamdan; and (c) even Alberto Gonzales acknowledges is simply wrong. Specifically, Specter argues as follows:
Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. . . . If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist.
Specter here echoes the central myth which the President's most disingenuous followers have been disseminating ever since the NSA scandal began -- that because the President has the "inherent authority" under the Constitution to eavesdrop, Congress cannot restrict, regulate or limit that power in any way. That is just plainly wrong. The whole point of our system of Government is that the three branches share power in all areas. That is what "checks and balances" means. Congress has every right to regulate even those powers which the President possesses. That is beyond dispute at this point.
The Supreme Court in Hamdan just ruled not more than three weeks ago that even though the President has the Constitutional power to create military tribunals for war detainees (just as he has the Constitutional power to eavesdrop), he is required to do so in accordance with the laws enacted by Congress. That was the whole point of Hamdan -- that the President is required to abide by the law even with regard to the exercise of his Constitutional powers. And just to make certain that this point was not lost on the Arlen Specters of the world, the Court (f. 23; emphasis added) explained :
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. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring).
Justice Kennedy, in his Concurring Opinion, emphasized that this has been the law since at least Youngstown, which he quotes to make that point (emphasis added): "If the President has exceeded these [Congressional] limits, this becomes a case of conflict between Presidential and congressional action . . . And '[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.'"
Most amazingly, when Alberto Gonzales testified before Specter's own Judiciary Committee, had told Specter that it is false to claim -- as Specter just did -- that Congress lacks the power to regulate or restrict "inherent Constitutional powers" of the President:
GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war. And so if we're talking about competing constitutional interests, that's when you get into, sort of, the third part of the Jackson analysis.
The whole premise of Specter's defense of the President and his bill is just indisputably false. It has been unambiguously rejected by Youngstown, Hamdan, and even Alberto Gonzales. Both Marty Lederman and Anonymous Liberal add their astonishment that Specter could articulate such a plainly false legal argument. And it is not some obscure legal error, but a principle that lays at the core of how our system of government works. The President does not have the power to operate outside of the laws of our country, and that's particularly true when it comes to actions he takes against American citizens on U.S. soil.
This is what we have been reduced to. A Senator actually celebrates as some sort of victory or "concession" the fact that the President will allow the constitutionality of his actions to be decided by a court. And we are told that although the President has been breaking the law for the last five years, that is all perfectly "understandable" and we should just all be grateful that the President is allowing us to pass a law which makes that conduct legal.
Specter is like an abused spouse. He screams while he's being abused, then defends the abuser after a day or two.
ReplyDeleteSpector is after all, the guy who helped cover-up the Kennedy assassination. He's a career whitewasher for govt thugs.
ReplyDeleteJustice Kennedy, in his Concurring opinion, emphasized that this has been the law since at least Youngstown,
ReplyDeleteThe President's power to conduct national security policy has been limited by Congress' authority since almost the beginning of the Republic. The first major case to hold as much was Little v. Bareme, 6 US (2 Cranch) 170 (1804), in an opinion by Chief Justice John Marshall.
Somehow, I think the Great Chief Justice knew a little more about the Constitution than Arlen Specter.
Hi Glenn,
ReplyDeleteNot sure whether you've seen these. The ABA during the weekend has weighed in on the Administration's signing statements. And Michael Greco of the ABA seems to not be too in love with Specter's proposed blank check/bill.
http://www.abanet.org/media/releases/news072406.html
http://www.abanet.org/media/releases/news071906_2.html
It's simple. Specter, like Hoekstra, puts himself in the spotlight by complaining about the President's bypassing Congress. All he wants is a bribe from King George, "whose urine is the wine of his subjects."
ReplyDeleteThe sole question which a court will decide under this claimed oral agreement between Specter and the President is whether warrantless eavesdropping violates the Fourth Amendment.
ReplyDeleteOne thing I don't understand is how insisting that the judicial review be conducted by this particular court is consistent with the right of judicial review in general.
What has the administration got on Specter?
ReplyDeleteWhy the "roll-over-and-put-the-4 paws-in-the-air" act?
I got the same dark feeling when Fitzgerald rolled over for Rove. These things give me the shivers. We've got a bunch of lawless thugs in the highest offices of this country.
The evidence is in.
Why is Specter so eager to please a term-limited, sub 40% President? Even other congressional lapdogs have made some efforts to token "stand up" to the administration now that their grip on congress is at stake, so why would Specter take the opposite approach, and become even more obsequious?
ReplyDeleteI thought he might be afraid to lose his chairmanship, but it's increasingly likely the Dems will do that anyway by winning back the senate regardless if he keeps the fascist wing of the Republican party happy.
shoes of peace:
ReplyDeleteFitz didn't roll over for Rove. Rove saved himself by dumping on Cheney and his people right from the start, well before they could dump on him. (I'm betting he squealed right after Novak did.) The deal with Rove is that Cheney's people 's testimony contradicted his at several points, hence his being brought back five times to testify. And Fitzy is being very helpful with the civil lawsuit being pressed by Valerie Plame; he's working with her legal team to ensure neither side messes up the other's case.
(screw Specter)The following linked article, by Andrew Greeley, is very interesting, and quite an honest analysis coming from the msm:
ReplyDeleteCheney behind turn toward dictatorship
A couple of excerpts:
The United States is currently caught up in a new campaign for a military dictatorship rule by a military chief with absolute power. The White House, inspired by Vice President Dick Cheney, has argued that in time of great danger, the President has unlimited powers. If he cites national security, he can do whatever he wants -- ignore Congress, disobey laws, disregard the courts, override the Constitution's Bill of Rights, -- without being subject to any review. Separation of powers no longer exists under this view. The President need not consult Congress or the courts, only the vice president, the attorney general and God.
The Supreme Court, in its ruling about a Guantanamo detainee last week, was a sharp rebuke to Chenyism (fascism, American style). It dealt with only one case and left the President wiggle room. He could consult with Congress about new legislation that would provide more rights for the detainees in a military trial. But that violates Mr. Cheney's first principle that the commander in chief doesn't have to consult with anyone on matters of national security. If the President was consistent with the Cheney theory and the memos from Alberto Gonzales, first the White House lawyer and now the attorney general, he should defy the Supreme Court and insist that he has the right to establish whatever judicial process he deems proper for these potentially dangerous people without any interference from anyone. He may still do that.
Mr. Cheney is a vile, indeed evil, influence in American political life. He is a very dangerous person who would if he could destroy American freedom about which he and his mentor prate hypocritically. His long years in Washington have caused him to lose faith in the legislative and judicial processes of the government. The country, he believes, requires a much stronger executive. Such concentrated power would have been necessary even if the Sept. 11 attacks had not occurred. Mr. Cheney uses the fear of terrorists as a pretext to advance his agenda of an all powerful president, a military dictator.
So long, of course, as he is a Republican.
Eric in Ottawa said..
ReplyDeleteI just don't get Spector.
I mean is someone blackmailing him? Why would he do this when he's so clearly in error?
It would go a long to to explain my the Congress has been going to such great lengths to return us to a monarchy.
Fitz didn't roll over for Rove. Rove saved himself by dumping on Cheney and his people right from the start, well before they could dump on him. (I'm betting he squealed right after Novak did.) The deal with Rove is that Cheney's people 's testimony contradicted his at several points, hence his being brought back five times to testify. And Fitzy is being very helpful with the civil lawsuit being pressed by Valerie Plame; he's working with her legal team to ensure neither side messes up the other's case.
ReplyDeleteEither way, Karl Rove is a very bad man and I'm tired of these games.
As long as we're wondering about blackmail, what have they got on Voinovich?
ReplyDeleteQuoting Andrew Greeley:
ReplyDelete"Mr. Cheney uses the fear of terrorists as a pretext to advance his agenda of an all powerful president, a military dictator.
So long, of course, as he is a Republican."
Of course. It's always about whose ox is being gored. The liberal position during the War on Poverty was for stronger Presidential power to enact great changes for the good of the country. Ten years later, during the Nixon Administration, it was the conservatives who were for stronger Presidential power.
Nowadays, with the Cheney/Rove Administration trying to undo everything the liberals have done since 1776, they are trying to reinstate the Divine Right of Kings, and establish the Bush Dynasty.
It has happened here. Glad you continue to remind us Glenn.
ReplyDeleteSpecter has turned into the most willing and enabling of Dear Leader's Lapdogs
ReplyDeleteI'm predicting that before the 2008 Presidential elections, the GOP starts trying to roll back some of President Bush Jr's clearly illegal power grabs, lest they get the same treatment courtesy of a Dem President
Not that electing the Dems will likely change anything
The Dems are still staying quiet-with notable exceptions such as Russ Feingold, Colnyers, Murtha, Durbin, Leahy, etc-even though the President's own party is starting to abandon him to his political fates
W's power grabs could NOT have been successful with a more than willing acquiescence from both the Congress and Senate
As was pointed out in the thread put up yesterday, we're not close to being a completely fascist state, but every day that goes by without more political opposition to W's Unitary Executive blather, we move a bit closer
You should see the hoops that the Chilean Supreme Court jumped through and the tortured (no pun intended) reasonings they used to legalize Pinochet's egregious actions. (I'd posted a link here once or twice a while ago but I'm too lazy to look it up again.) Par for the course.
ReplyDeleteIn today's bizarre Washington Post op-ed ("Surveillance We Can Live With") pitching his ill-conceived NSA eavesdropping compromise, Senate Judiciary Committee Chairman Arlen Specter (R-PA) shows all of the hallmarks of a man in the throes of severe cognitive dissonance. While essentially pronouncing the illegality of George Bush's illegal domestic surveillance program, he cannot bring himself to harm his President or his party.
ReplyDeleteFor the details, see:
"Specter's Op-Ed: Cowardice He Can Live With."
Spector needs to resign his post as Judiciary Chairman. In fact he should not be on the committee at all. The comment made earlier by anonymous about "being like an abused spouse to Bush" is such a perfect description. The only reason Spector is there is to make sure nothing EVER gets investigated to the extent it needs to be. Sure he postures himself in grandiose style, to seem like he's actually being open minded, but he always sticks with Bush and his ilk in the end.
ReplyDeleteSpecter: "The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review."
ReplyDeleteBut the preznit has not "vociferously argued that the administration had the authority for the program" to any court.
Mr. Preznit: Tell it to the judge!
Curious people want to know whether you are violating the laws, rather than seeing they "be faithfully executed".
Cheers,
When this nightmare finally ends and the history is written,Spector will be remembered in the US with the same reverence that Vidkun Quisling recieves in Norway.
ReplyDeleteI'm still waiting for the widespread abuses that you folks keep prediction and seem to almost want to happen (you know - more ammunition in your war against Bush) as opposed to say, the myriad of terrorist cells that have been shut down or are at least being kept track of as a result of this program.
ReplyDeleteCourse I guess I'm preaching to the the wrong audience - the war on Bush is the only war folks around here can even contemplate.
Bush is the 'real' terrorist and all that stuff.
Cheers,
and let the rest of the Americans be thankful that while the liberal teenagers are wining about the driving in the back seat, we have a responsible adult driving the car.
the myriad of terrorist cells that have been shut down or are at least being kept track of as a result of this program.
ReplyDeleteWhat a joke.
and let the rest of the Americans be thankful that while the liberal teenagers are wining about the driving in the back seat, we have a responsible adult driving the car.
Would you make GWB the ownder your business and therefore you and your family's income for 8 solid years?
anonymous:
ReplyDeleteBlue clickies fer ya (and others):
Blue-Ribbon Task Force Finds President Bush's Signing Statements
Undermine Separation Of Powers"
and
ABA Backs LISTEN Act In Testimony Before House Intelligence Committee
Cheers,
Biff:
ReplyDeleteWhat is like to be a dead-ender and a 30-percenter for Bush?
When this scandal first broke, I assumed the Administration was using the NSA to spy on political opponents--meaning Democrats. Now I'm beginning to think the point was to keep their own in line. This isn't the first time a Republican congresscritter or ex-staffer has been cowed into submission. Remember Paul O'Neill? Guess they've got the goods on everyone--enough to scare the wits out of would-be critics.
ReplyDeleteWe have a good idea of what the Bush WH has on Lugar and Graham.
ReplyDeleteFor Voinovich, I suspect he's worried about (economic) retaliation against his family.
Spector is harder to figure out. At this point, you would think he would be considering his legacy for posterity. There was that case of alleged corruption with his staff (obviously leaked by Karl) that he seemed to brush off. Perhaps Rove has more serious stuff on him. Perhaps we have to go back to the "magic bullet" theory he invented, and conclude that at heart he is just by nature a whore.
Biff is thinking of that terrifying group in Florida who thought they were going to get uniforms from Al Qaida.
ReplyDeleteHey Biff
ReplyDeleteJust why don't you fill us in on all those "myriad of terrorist cells that have been shut down or are at least being kept track of as a result of this program."
Real names, real groups, real proof that these wrrantless spying programs were any kind of reason for stopping any such groups-should they ACTUALLY exist
You know, independently verifiable facts which exist outside of W's blather of "Just trust us"
I know, for a W supporter, "independently verifiable facts" are always the kiss of death for whatever power grab nonsense the W lemmings try and cast about, but give it a shot anyways
Tom: Nowadays, with the Cheney/Rove Administration trying to undo everything the liberals have done since 1776, they are trying to reinstate the Divine Right of Kings, and establish the Bush Dynasty.
ReplyDeleteA fine bit of snark, that -- I enjoyed it. The best part is that it focuses attention on the principal disagreement between liberals and conservatives: Which uses of federal power are legitimate, and which are not?
For example, even as someone with no training in the law, I can see that a great deal of tinkering has been done in the past with the Commerce Clause. Innovative, certainly, but constitutional? Well, I don't know the answer, but I think one can argue that some of the tinkering was essential to the healthy development of the country.
What probably made me a liberal, and at the same time a supporter of strong central government, was the civil rights issue. I think most people forget that without it, segregation and Jim Crow might well have lasted forever in the South. States' rights advocates argued that a call for devolution was simply a call for greater democracy, but the practical effect -- indeed the intended effect -- was to preserve a particularly nasty form of legalized injustice. Federal intervention was surely the lesser evil in this situation.
Is it always? Probably not. Liberals object to laws against abortion, conservatives object to laws restricting the use of federal land, especially in the West, where there's a lot of it, etc., etc. Libertarians seem to object to both.
I view Glenn's opposition to any sanctification of the Cheney interpretation of a President's Article II powers -- which I share -- as fundamentally more important than most arguments over the powers of the federal government. Why? Because I think that giving the President the power to declare war as well as to direct the armed forces in a time of a war is less a concession to efficiency in fighting faceless and persistent enemies, than an invitation to tyranny, especially when coupled with virtually unlimited surveillance powers.
Conservatives once felt similarly about Roosevelt's court-packing innovations. Had I been around at the time, I would probably have been in sympathy with what he was trying to accomplish, but deeply distrustful of his methods.
In any event, I don't see anything sinister in liberals and conservatives swapping poles every so often, like the earth's magnetic field. Issues that people feel strongly about are hard to contain within an agreed framework of government, even one as beautifully flexible as ours. While I can probably tolerate stretching it a little, smashing it into pieces is just not acceptable.
The ongoing question, why is it that Specter's op-ed piece is not matched toe to toe with an op-ed piece from a Dem leader?
ReplyDeleteThis is as incoherent as it is alarming.
ReplyDeleteSo was the "single bullet theory" but we warmed up to that, too.
biff said:
ReplyDeleteI'm still waiting for the widespread abuses that you folks keep prediction and seem to almost want to happen (you know - more ammunition in your war against Bush) as opposed to say, the myriad of terrorist cells that have been shut down or are at least being kept track of as a result of this program.
Ummm, haven't heard about any "myriad of terrorist cells that have been shut down" due to this. Care to enlighten us?
As for evidence of warrantless snooping, Commander Codpiece has admitted it. Guess you missed that photo op....
Course I guess I'm preaching to the the wrong audience - the war on Bush is the only war folks around here can even contemplate.
Bush is the 'real' terrorist and all that stuff.
Nope. Dubya is the real threat to our freedoms. You know, "he hates us for our freedom"....
Cheers,
and let the rest of the Americans be thankful that while the liberal teenagers are wining about the driving in the back seat, we have a responsible adult driving the car.
Here. And here. And here.
Yep, things are looking up (as we descend the cliff face).
Oh, and another thing that ought to brighten your morning....
Cheers,
BIFF!! BAM!! POW!!
ReplyDeleteExactly when is this clown up for re-election?
ReplyDeleteSpector needs to resign his post as Judiciary Chairman. In fact he should not be on the committee at all. The comment made earlier by anonymous about "being like an abused spouse to Bush" is such a perfect description. The only reason Spector is there is to make sure nothing EVER gets investigated to the extent it needs to be. Sure he postures himself in grandiose style, to seem like he's actually being open minded, but he always sticks with Bush and his ilk in the end.
ReplyDeleteQuestion: Is it the abused spouse that gets thrown out, or the abuser?
Glenn said, re Specter's comments on Dubya's Article II grab:
ReplyDeleteSpecter: "President Bush's record of seeking to expand Article II power has been a hallmark of his administration. The president and vice president have vociferously argued that the administration had the authority for the program without any judicial review. Bush's personal commitment to submit his program to FISC is therefore a major breakthrough."
This is as incoherent as it is alarming.
You want incoherent? Try this gibberish:
Specter: "The president understandably rejected a statutory mandate to submit his program to FISC, on the grounds that such a mandate could weaken the presidency institutionally by binding his successors. Indeed, such a mandate might not withstand a future president's contention that it unconstitutionally limited his Article II powers to conduct surveillance without court approval."
Anyone have any idea what Specter (or Dubya) is talking about here?
Cheers,
There is a call to action - well, a phone call to action - but a call to action none-the-less over at FDL.
ReplyDeleteIf you still care about the Constitution of the United States perhaps you could take some time out of your day today to do some Dialing for Spines.
The whole point of our system of Government is that the three branches share power in all areas. That is what "checks and balances" means. Congress has every right to regulate even those powers which the President possesses. That is beyond dispute at this point.
ReplyDeleteThat is simply wrong, Glenn. The Constitution does not demand that all three branches share power in all areas. On the contrary, each branch clearly has some powers which are reserved to it alone (e.g., declaration of war to the Congress, veto to the President, appelate review to the Court, etc.) Furthermore, the Congress does not have any right to regulate those powers which the President does not share with the Congress. That much should be beyond dispute. What is in dispute is whether the Congress has some share in the authority to conduct intelligence gathering (particularly that intelligence gathering that the Executive claims to be conducted for foreign policy or military reasons) and, if it does have some authority in this area, what are the limits of its authority to restrict Executive actions (particularly, does FISA prior to Specter's gutting fall within those limits.)
Of course, Specter doesn't address those questions. Instead he concedes to the Executive all authority over the regulation and conduct of foreign intelligence surveillance that does not exceed Fourth Amendment bounds, while publicly posturing that it is the Executive that is making concessions.
Reposted from a previous thread:
ReplyDeleteWhere's Bart?
Hey Bart, I am sure someone has found you under your rock to tell you this already but just in case not - it looks like it is time to turn in your ABA card or secret decoder ring or whatever it is you lawyers get for passing the bar.
You wouldn't want to belong to a traitorous association that hates America and is aiding the "Islamofacistsists" enemy would you?
You despicable authoritarian moron.
ARNE - Anyone have any idea what Specter (or Dubya) is talking about here?
ReplyDeleteI had a paragraph about this paragraph in my post originally, but deleted it because it was so unclear what Specter meant. I think he's referring to questions as to why this "agreement" for Bush to submit the program to the FISA court isn't mandated by the bill itself, but instead relies upon a highly contingent, side oral deal he claims to have.
He's justifying that by claiming that the President - "understandably," of course - does not want it madated that the program be reviewed constitutionally by the FISA court because - somehow or other - that would bind his successors.
It's ludicrous for so many reasons, but Specter went to even more abusrd lengths than that in order to defend the Leader.
That is simply wrong, Glenn. The Constitution does not demand that all three branches share power in all areas.
You're only raising a semantic point that depends on how you define "areas", not a substantive one. The President and he alone, for instance, has the power to execute the laws. The Congress, and it alone, has the right to declare war. If you want to define those as "areas," you could assert that they have those powers without sharing.
By "areas", I mean categories of powers - such as war powers. The Yoo theory is that in that area, the President has the power to act alone. Hamdan said the opposite.
Specter's claim - that any inherent powers of the President are, by definition, beyond the reach of the Congress - is precisely the theory rejected by Hamdan (and before that by Youngstown). That's becuase establishing that the President has power to do X does not prove that Congress has no power to regulate in that area or to restrict how Power X is exercised. That is what it means to say that we have three co-equal branches which check one another.
anonymous:
ReplyDeleteThe Constitution does not demand that all three branches share power in all areas. On the contrary, each branch clearly has some powers which are reserved to it alone (e.g., declaration of war to the Congress, veto to the President, appelate review to the Court, etc.)
Declaration of war: Then you think that AUMFs (particularly those of 2001 and 2003) are unconstitutional violations of nondelegability?
Veto: On a higher level, surely an example of "checks and balances", rather than an example of a plenary power. The preznit may veto, but Congress may over-ride. Back and forth....
Appellate review: So you think that Article III says what it says (taken as a whole), and that initiatives the Republicans have suggested to go "stripping" the courts of authority to hear certain types of cases cannot stand. Right?
Furthermore, the Congress does not have any right to regulate those powers which the President does not share with the Congress.
Depends what you mean by "regulate". As is obvious from all of Title 10 and Title 18, Congress may indeed twiddle with the operation of the executive. In fact, I can see no power of the executive that is not subject to Congressional "interference" outside of pardons (the closest would be appointments, but even some of those require confirmation). And you'd be hard pressed to find any executive power not subject to court review under the appropriate circumstances. That's what "checks and balances" is all about. Dubya's "I'm a war president" is all about giving the finger to the co-ordinate branches, and removing any meaningful checks for certain things.
Cheers,
arne said:
ReplyDeleteThen you think that AUMFs (particularly those of 2001 and 2003)...
Should be 2001 and 2002... Sorry.
After fierce negotiations, I have agreed to stop at red lights.
ReplyDeleteI remember overhearing adult conversations about the Korean War when I was a kid which, in essence, expressed shock that Truman would dare conduct this police action without a Congressional Declaration of War.
ReplyDeleteAs I recall, no one doubted the necessity for the war, but everyone thought Truman had done something sneaky by starting it himself.
Now, after I forget how many wars since 1950, nobody even bats an eye. Well, okay, if ICBMs only give you thirty minutes to respond, maybe we do need to adjust things a little, but Panama, Grenada, Iraq? What's up with that, eh?
Glenn again makes the fundamental constitutional point: That's becuase establishing that the President has power to do X does not prove that Congress has no power to regulate in that area or to restrict how Power X is exercised. That is what it means to say that we have three co-equal branches which check one another.
ReplyDeleteWhy do so many otherwise intelligent people have such difficulty grasping this uncomplicated facet of the American political system bequeathed us by the Founders? One can only suspect the existence of willful blindness.
Declaration of war: Then you think that AUMFs (particularly those of 2001 and 2003) are unconstitutional violations of nondelegability?
ReplyDeleteVeto: On a higher level, surely an example of "checks and balances", rather than an example of a plenary power. The preznit may veto, but Congress may over-ride. Back and forth....
Appellate review: So you think that Article III says what it says (taken as a whole), and that initiatives the Republicans have suggested to go "stripping" the courts of authority to hear certain types of cases cannot stand. Right?
I'm not interested in diluting the discussion any further, arne, so I won't comment on your questions any further than to restate my prior point: The Congress clearly does not have the Constitutional authority to restrict any and all Executive actions. However you wish to view it at a higher level, the President's veto power cannot be restricted or modified by the Congress -- they can't tell him which bills he can or cannot veto, that he must perform some other action if he vetos a particular bill, etc. You seem willing to concede that the President's pardon power is a similar illustration of the basic point.
One of the core questions in the NSA surveillance affair is whether the Executive authority to engage in warrantless surveillance for foreign intelligence purposes similarly lies outside of any Congressional authority to restrict or modify that surveillance activity. For whatever little weight it is worth, I personally don't believe that the Congress exceeded its constitutional authority in enacting FISA, and that the Executive is bound by that law.
Specter, on the other hand, doesn't even address that core question or those arising from Youngstown and Hamdan if the Congress was acting within its authority in passing FISA. Instead, he gives away all of Congress' authority by invoking the bogus claim that inherent Executive power supercedes any Congressional effort to restrict or modify the employment of that power. That fundamental error in Specter's analysis Glenn, Lederman, and Anonymous Liberal each address very well.
Glenn again makes the fundamental constitutional point: That's becuase establishing that the President has power to do X does not prove that Congress has no power to regulate in that area or to restrict how Power X is exercised. That is what it means to say that we have three co-equal branches which check one another.
ReplyDeleteWhy do so many otherwise intelligent people have such difficulty grasping this uncomplicated facet of the American political system bequeathed us by the Founders? One can only suspect the existence of willful blindness.
Glenn, I hope you are sending in a letter to the editor in response to Specter's odious op-ed. Thanks for all you are doing. I'm continuing to give your book to people, including a Congressman.
ReplyDeleteMmm...it occurs to me after letting the last comment escape my grasp, that someone might bring up the Tonkin Gulf Resolution, or the AUMF.
ReplyDeleteWell, okay, there's more than one way to get the Congress on board, but when we keep finding out afterwards that the President -- how shall I say it -- shaded the truth when presenting the Congress with justifications for his military actions, why wouldn't we be concerned about this whole issue of war powers, and who gets to do what to whom?
isn't it time to call the administration's spying what it should be called? Ratf*cking
ReplyDeleteGlenn, you're still one of my #1's but I just wanted to share a site I just found. There's truth, relevance, application to the discussion of why-o-why can't our democrats do what we want them to do (...much less the republicans...), and it's very funny, too. The first post I read is from issue #74. It's called SuperWhores. It's telling that the date on this particular post is from May of last year. Warning: These guys are very hard on our democrats. And on US, for that matter.
ReplyDeleteAs I say, I'm still investigating the site but, so far, so good. Here's an excerpt from Super Whores:
The whole thing is a perfect microcosm of our national politics. On the front pages, the Democrats feud with the Republicans like pit bulls over a bunch of idiotic and mostly irrelevant social issues, usually involving Jesus—Terri Schiavo, judicial nominations, the bankruptcy claims of anti-abortion terrorists. Whenever the cameras are on, they trot out a shrill hag like Nancy Pelosi—a personage very proficient at being loud, but suspiciously ineffective at instilling party discipline—to hysterically denounce the Republicans as the spawn of Satan. But once the lights are off, they hand the party reins to a few dozen whores who make sure the money votes go the right way.
They do this every time, yet we still buy their Capra act.
Are we really all that stupid?
Hope this doesn't muddy your pure, clear waters, Glenn.
I suspect that you will not have time to attend to yet ANOTHER site but I thought that maybe some other commenters would enjoy it.
I'll give it a shot
ReplyDeleteArne Asked:
"You want incoherent? Try this gibberish:
Specter: "The president understandably rejected a statutory mandate to submit his program to FISC, on the grounds that such a mandate could weaken the presidency institutionally by binding his successors. Indeed, such a mandate might not withstand a future president's contention that it unconstitutionally limited his Article II powers to conduct surveillance without court approval."
"Anyone have any idea what Specter (or Dubya) is talking about here?"
Arlen's telling us that W's not actually worried about any legal oversight for his own power grabs, but is instead worried that such oversight might be binding on his successors
That's our W, always the altruist, concerned for his successors unfairly being held to his own high standards
You're only raising a semantic point that depends on how you define "areas", not a substantive one.
ReplyDeleteNo, there's more substance than you suggest. Even if you want your usage of "areas" to indicate broader categories, you're still faced with at least two issues. First, some of Bush's defenders make the claim that foreign intelligence gathering is an area distinct from the war powers area. While the Court may have recognized Congressional authority in the shared war powers area, they'll claim that foreign intelligence gathering still remains outside of the Congress' reach. Second, even a recognition of shared authority in a broadly defined area does not grant the Congress authority over everything that falls within that area. Bright lines are notoriously lacking when it comes to resolving many specific questions of Legislative authority in shared areas. For example, does the Congress have the authority to legislate a military attack by particular U.S. forces on a particular target at a particular time, or are such tactical issues solely the province of the Commander in Chief despite the fact that they fall within the broader war powers area? If the Congress can't legislate military tactics then where does the line fall as to what else within the war powers area is outside of its reach? Of course, the Bush supporters will claim that both military tactics and foreign intelligence surveillance (regardless of which area it falls into) are not within the legislative reach of the Congress.
Once again, the overarching matter remains that Specter avoids all of these issues by giving away whatever authority the Congress has if the President has any in this area.
Speaking of abused "spouses",
ReplyDeletehere's a site speaking very plainly about such things. Thank God for Amnesty International.
They have a lot to say regarding the issue of torture, as well. Of course that's nothing to worry about because President Bush says that we don't DO torture. And Tommy Franks doesn't DO body counts.
According to Amnesty International, Jordan is the central "hub" for the U.S. torture renditions...and other countries, as well.
I think Senator Specter needs to re-read the oath of office all Senators take:
ReplyDeleteA U.S. Senator's Oath of Office:
I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.
I am ashamed of him. What an unpatriotic coward he is.
Have we come to the point where it is necessary to amend the Constitution to explicitly delineate the concept of ‘checks and balances,’ and head off future attempts by the Executive to hijack unlimited power?
ReplyDeleteForget flag-burning and outlawing Gay marriage – this is an amendment that I could whole-heartedly support!
It's over people, the fat lady IS singing.
ReplyDeletePerhaps, but I must take my comfort in the fact that Bush is a miserable failure and couldn't even succeed at being Daddy's (very expensive) chimperor.
The sad news is that more life will be destroyed at his hands before it's all said and done.
I used to live in Pennsylvania, and remember Spector debating some right wing candidate who was vying for Spector's seat, about 15-20 years ago.
ReplyDeleteSpector came across as very intelligent, moderate and reasonable at the time, which I appreciated then.
I don't know what's happened, or if this is a side to his character he's always had. He clearly has been compromised.
Anon @ 11:59:
ReplyDeleteThis is as incoherent as it is alarming.
So was the "single bullet theory" but we warmed up to that, too.
I keep seeing this post every time we talk about Specter. If you and Oliver Stone would look at the pictures and diagrams of the plaza, building and the car, you would see that the shot to Kennedy's back lines up with Connally's wound to his side.
I dislike wingnuts of any political belief.
"...three federal appeals court decisions suggest the president may be right."
ReplyDeleteAnybody know what he was refering to here? Link?
You know, I wonder if Specter really understands what his legislation does. I think the WH may have put one over on him.
ReplyDeletewith the entirety of the IOKIYAR apologists, i'm just wondering if in specter's case is it "fear" or "favor"
ReplyDeletei'm guessing fear, 'cus no favor could be paid to be the person who allowed this country to turn into the authoritarian theocracy the cheney / rumsfeld maladministration is turning this country into
The reason that the Democrats have done their best to allow the extra-legal NSA warrantless surveillance issue to be swept under the rug is that the program took its current form in the late 1990's.
ReplyDeleteThis will come out at some point.
Also, those wishing to find the key to the Arlen Specter mystery will find a very good lead by looking into the Ira Einhorn case.
"...three federal appeals court decisions suggest the president may be right."
ReplyDeleteAnybody know what he was refering to here? Link?
He's almost certainly referring to three appellate court decisions which held that the President has the inherent constitutional authority to engage in warrantless eavesdropping. These are the cases cited endlessly by Bush followers who either don't understand the distinction discussed in my post or who understand it but purposely ignore it.
All of those cases were pre-FISA. They simply held that in the absence of any Congressional statute, the President has authority to eavesdrop. But because that was pre-FISA, these cases say nothing more other than that the President has this power, NOT whether he can exercise that power in violation of a statute enacted by Congress which limits the power. On that question - which is the relevant question - both Youngstown and Hamdan make clear that the President is required to abide by the law.
Aren't we all such very LUCKY people?
ReplyDeleteMoral outrage at the President's illegal actions is only for Democrats. If you're a Republican, you save your moral outrage for the Democrats who would dare countenance oversight.
ReplyDeleteI feel the only bigger obstructionist in the Senate than Specter - or at least, the only more dangerous one - is Pat Roberts. (But that's debatable, and Frist of course must always be in contention. But those are my top three).
I think what puzzles me is why those who curry the favor of the administration, and why the vocal royalists, think that ultimately the monarchy is in their best interests?
ReplyDeleteHow many times in history have those who voluably and intractably supported the monarchy (or subsitute any appropriate authoritarian regime) discovered later that the monarchy, in fact, did not have their best interests at heart, and were, in fact, seeking to persecute them for their various "infractions" against the reign?
It's the same with the Islamic and Christian fundamentalists: what happens when all the "undesirables" have finally been expunged from the world? Eventually, the fundamentalists start to find "undesirables" within the remaining faithful.
Luke / Moustapha: "I am concerned whether Edwin / Abdullah is a true follower of the faith?"
Todd / Ibrahim: "Really? He has been one of the faith's most ardent supporters!"
Moustapha / Luke: "Has he, indeed? I'm not so sure. Look at the way he holds his mug of tea. That is suspiciously like a non-believer!"
Ibrahim / Todd: "He has always held his mug of tea that way! There is no proscription in the faith against holding a mug of tea a certain way!"
Luke / Moustapha: "Careful how you speak, Todd / Ibrahim. Those sound dangerously like the words of a non-believer!"
There's an old tale that appears, in variations, among several cultures:
A woman arrives at a river bank and encounters a rattlesnake. The rattlesnake says, "Take me across the river, for I cannot swim." The woman replies, "No, you are a rattlesnake, and if I carry you, you will bite me." The rattlesnake speaks, "No, I promise I will not, for if I bite you, what will it serve me, who needs to cross the river and can't, without your help." The woman eventually agrees, after much persuasion in this manner. As she reaches the far shore, the rattlesnake bites her, and she collapses, dying. "But I helped you!" she cries. The rattlesnake says, "Ah, but you knew all along I was a rattlesnake . . . ."
Why a king? (I guess my little catchphrase seems to have been answered by John Dean's book)
Rob
desert son:
ReplyDeleteIdeological purity police are everywhere, even here on this blog, and bad faith seems to be epidemic. Say something that violates the presumptive canon, and someone will certainly read you out of the party in a very public way, even when the party in question exists only in his/her own mind.
There are also plenty of believers in the power of sophistry, or in its modern manifestation, propaganda, or its armed auxiliary, Leninism.
They invariably convince themselves that they're smarter and stronger than anyone else, and they spend a lot of time plotting a way to force reality to manifest their deepest desires, or compiling their little lists. This one is in, that one is out, and -- just as you suggest -- the whole mess is not only vapid and noisy, but self-devouring to a fault.
The founders of our republic didn't lack in sophistication, and they weren't strangers to the psychology of manipulation or -- to put it plainly -- evil.
But read the Federalist Papers and what you hear is the echo of honest men, determined not to let irony, or nasty little dreams of advantage, get in the way of accomplishing something lasting. You hear the very same openness in Thucydides, or Montaigne, or Shakespeare, except that given their experiences, it's comes out as tragedy rather than enthusiasm.
Why, oh why, do we equate intelligence, or wisdom with duplicity? If we could figure that out, I have the feeling that our political problems would seem pretty trivial.
Specter instructs us to be grateful to the President
ReplyDeleteAnd I instruct Specter to be greatful to all American citizens that we have not yet mounted an effort to have him tried for treason.
From what I have read from certain military commenters on this site, when you enter the armed forces you have to take an oath to defend the Constitution of the United States and anyone who tries to subvert it is guilty of treason. (Is this true?)
The sole question which a court will decide under this claimed oral agreement between Specter and the President is whether warrantless eavesdropping violates the Fourth Amendment.
Well, our boy Orin Kerr already co-opted that debate when he definitely said it does not. And as OK goes, so goes the conservative block on the SC. Which means we are one frigging SC appointment away from declaring the Fourth Amendment null and void and Kennedy himself also looks somewhat suspicious around the edges.
Specter wants to turn over the entire reins in this country to a person who is getting his instuctions from God. And GWB "knows" God's heart just like he knows everything else.
What kind of man is George Bush. I'll interview Justin Raimondo:
Me: Justin, can the government now nuke Iran?
Justin: Yes, they can, and it's due, in large degree, to one man's vanity.
Me: What's this? You think GWB is a tad too vain?
Justin: In George W. Bush's case, this is one of his most striking characteristics, which, entwined with his arrogance and stubbornness, seems to define his personality. He doesn't want to go down in history as George the Clueless: he dreams of being George the Conqueror, the man who had the vision to defy the experts, the media, and the American public, and "liberate" not only Iraq but the entire Middle East.
Me: Is he deranged like some relgious fanatics we have read about in history? You know, like some of those Islamofascist extremists The Volokh Conspiracy keeps educating us about?
Justin: George W. Bush bears all the ominous hallmarks of a True Believer. Here is a president who, in his last inaugural address, proclaimed "the ultimate goal of ending tyranny in our world."
Me: Seems pretty grandiose to me. I saw that years ago in people I knew who were in the late stages of cocaine addiction.
Justin: Grandiosity doesn't even begin to describe the presidential mindset – it is more like megalomania – and the abundant danger of such ambition on the part of such a man is all too apparent.
Me: Megalomania? You mean like Hitler? Napoleon? Attila the Hun? The despots throughout history who had tens of millions of people slaughtered in their vainglorious quest for ultimate power?
Just had left the room and could not answer me.
PS. In the interests of historical accuracy and not to be another Ben D., I lifted Justin's responses from Danger!Alert! which is Justin's new article on antiwar.com.
The questions were compiled by moiself.
Barry said...
ReplyDeleteAnon @ 11:59:
This is as incoherent as it is alarming.
So was the "single bullet theory" but we warmed up to that, too.
I keep seeing this post every time we talk about Specter. If you and Oliver Stone would look at the pictures and diagrams of the plaza, building and the car, you would see that the shot to Kennedy's back lines up with Connally's wound to his side.
I dislike wingnuts of any political belief.
Hey asshole, Jupiter aligns with Mars. That don't mean shite, either, unless you are Nixon or Ronald Reagan, or some brain dead asshole named Barry who didn't even witness the event.
The single bullet theory (also known as the magic bullet theory by the majority of critics and conspiracy theorists) is the crucial element of the Warren Commission theory that only one assassin shot during the assassination of President John F. Kennedy.
The theory, generally credited to by Warren Commission staffer Arlen Specter (now a US Senator), posits that a single bullet, known as "Warren Commission Exhibit 399" (also known as "CE399"), caused all of the non-fatal wounds in both President John F. Kennedy and Governor John Connally. It is an important theory because its plausibility has been a popular point of contention. The 1979 House Select Committee on Assassinations Report agreed with the theory, but differed on the time frame.
As long as we are all in disagreement...
New Documented Information on CE399 and its Provenance (April, 2005)
The Magic Bullet: Even More Magical Than We Knew?
Would it be impolite to bring up the subject of I.Q.?
ReplyDeleteHarris Poll: Despite News Reports, More Americans Believe Iraq Had WMD
By Jim Kouri, CPP
Jul 23, 2006, 08:34
Despite being widely reported in the mainstream news media that the US and other countries have not found any weapons of mass destruction in Iraq, as well as Democrat talking points that Bush lied about WMD, more Americans (50%) think that Iraq had such weapons when the US-led coalition invaded Iraq.
This is a 14 percent increase from February 2005, when only 36 percent thought Iraq had WMD. This may be attributed to the recent discovery of an intelligence report describing over 500 shells containing WMD being found by US military forces in Iraq.
Also: eric in ottawa writes:
I just don't get Spector.
I mean is someone blackmailing him?
Glenn:
ReplyDeleteSpecter here echoes the central myth which the President's most disingenuous followers have been disseminating ever since the NSA scandal began -- that because the President has the "inherent authority" under the Constitution to eavesdrop, Congress cannot restrict, regulate or limit that power in any way. That is just plainly wrong. The whole point of our system of Government is that the three branches share power in all areas.
Are you sure you took civics, nevertheless Con Law in law school?
Each branch has plenary powers which are not shared by the other branches. Its a bedrock constitutional principle known as the separation of powers.
You are the first one I know of to claim that each branch shares all the other branches powers.
The Congress may not limit the President's Article II power to gather intelligence any more than the President may enact his own legislation to create the NSA and to fund the NSA Program. Executive actions are reserved to the President and legislative enactments are reserved to Congress. They do not share one another's powers.
That is what "checks and balances" means.
It most certainly does not.
Congress' checks and balances in this instance are the power to eliminate the NSA, defund the NSA or impeach the President if he has committed a high crime or misdemeanor.
Congress' enumerated Article I powers do not include any executive power nor do they in any instance allow the limitation of the President's power to direct intelligence gathering.
The Supreme Court in Hamdan just ruled not more than three weeks ago that even though the President has the Constitutional power to create military tribunals for war detainees (just as he has the Constitutional power to eavesdrop), he is required to do so in accordance with the laws enacted by Congress...
...pursuant to multiple Article I provisions expressly cited to by the Court. In the Hamdan case, the Court quoted the provisions of Article I which expressly gives Congress the power to set rules for Captures and to create the UCMJ which included the rules for Captures.
You intentionally and repeatedly ignore the fact that the Court in Hamdan, Youngstown and Dame cited to recognized Article I powers of Congress because you know damn well that there are no Article I provision and no interpreting case law which empowers Congress to direct intelligence gathering or to limit the President's Article II power to do the same. None.
By citing to Hamdan and Youngstown, you are the only one being disingenuous here.
Barry... I keep seeing this post every time we talk about Specter. If you and Oliver Stone would look at the pictures and diagrams of the plaza, building and the car, you would see that the shot to Kennedy's back lines up with Connally's wound to his side.
ReplyDeleteI dislike wingnuts of any political belief.
Barry,
You probably don't even shoot.
Sniping is a science and an art. One man with a mail order rifle, off the shelf ammunition, a totally undeformed bullet that caused seven wounds in the short time alloted with no spotter while shooting at moving target? Only a wingnut would believe in the single bullet theory.
"Congress has every right to regulate even those powers which the President possesses. That is beyond dispute at this point."
ReplyDeleteYeah, Glenn, you're overstating your case here. Congress can't just regulate *however it wants*. It can regulate--in certain areas, and there are rules that govern how it can regulate in those area. Congress might need to assert its authority here, but let's not get carried away.
Gee glenn, not to long ago you were trumpeting that "even a republican" said this was wrong.
ReplyDeleteMost could see that it was a sham then, but you blogged on and on and on and on...
And now you want to blog about this on and on and on and on...
Come-on - he was never nothing but a shill. We know it after his shameful participation in the warren commision and his made-up magic bullet theory.
Even dumbass jerry ford says they "got that one wrong" which by necessity - brings down the entire lone assassin theory.
Mr. sphincter was never your white knight.
Glenn..
ReplyDeleteWhere ha' joo bean? My hands eez esore from making all those esock poopets for joo.
Joo promised to buy me somezing pretty fo all hard work.
Call me.
Glenn: The whole point of our system of Government is that the three branches share power in all areas.
ReplyDeleteBart: Are you sure you took civics, nevertheless Con Law in law school?
Each branch has plenary powers which are not shared by the other branches. Its a bedrock constitutional principle known as the separation of powers.
You are the first one I know of to claim that each branch shares all the other branches powers.
The separation of powers refers to the kind of power, executive, legislative, or judicial. It does not refer to the area in which that power is used.
The legislative branch (Congress) makes up the rules.
The executive branch (the president and his administration) puts those rules in practice.
The judicial branch ensures that the executive branch and everyone else follows the rules.
This is what that bedrock constitutional principle means: the three branches have to work together to work effectively.
Congress' enumerated Article I powers do not [...] in any instance allow the limitation of the President's power to direct intelligence gathering.
Sure they do. It's their (Congress')job to make up the rules. It's their job to set the boundaries within which the executive branch can operate.
From Bart at 6:26pm:
ReplyDeleteYou are the first one I know of to claim that each branch shares all the other branches powers.
Amusing as this feigned outrage is, Bart does make a rather clear-headed point. To whit, as a matter of strict interpretation of the text of the Constitution each branch of the United States Government does indeed have a (reasonably clearly) defined sphere of authority and influence.
Then, unfortunately, Bartholomew goes off the rails once again and foolishly insists that there are no provisions or case law whereby Congress can "direct intelligence gathering" nor limit the President's (highly, highly nebulous) powers under Article II.
Articles I.8.10 and I.8.14 both speak to the former point in this case, given we're talking about the conduct of branches and agencies with the United States Army. If Congress were so inclined, it could easily impose the most stringent, micromanaging regulations upon the armed services under both provisions; the fact it has (quite rightly) not done so to date beyond formulating the UCMJ does not automatically negate either clause within Article I!
As to the second claim, while Bartholomew is indeed correct that Youngstown and Hamdan (I confess I'm unfamiliar with Dane) don't directly address the whole issue of "intelligence gathering", they do indicate there are limits to what the Executive Branch, and more specifically the Office of the President, can get away with or enact absent specific grants of authority by Congress or the Constitution. We may be fast approaching the point where another Youngstown-like decision will be handed down on this issue...or not. Who can tell at this point?
Bart closes with
By citing to Hamdan and Youngstown, you are the only one being disingenuous here.
I by contrast would argue he's ahead of the curse, and certainly ahead of the contrarians here who can't seem to think beyond their noses. Both cases set the groundwork for what is likely to come, and hopefully actually put the brakes on this disaster we call Bush 43.
I meant "ahead of the curve."
ReplyDeleteBART!! Job opportunity!!!
ReplyDeleteBush advised to ‘lawyer up.’ With November’s elections appearing “ominous,” “one presidential adviser wants Bush to beef up his counsel’s office for the tangle of investigations that a Democrat-controlled House might pursue,” Time reports.
You can probably help him out the next time he rides his mountain bike drunk.
Just a heads up that a parody of Glenn was actually linked to from fark.com (wuzzadem?).
ReplyDeleteThey really are going all out to smear his character!
Please keep up the good work. It must be pretty satisfying to see the extent they are going to discredit and smear, rather than substantially address your points.
Just a few more weeks, Bart. Then you really will be a victim. Poor bulemic conservatives. Binge and purge. Binge and purge.
ReplyDeleteHWSNBN sez to Glenn, condescendingly:
ReplyDeleteAre you sure you took civics, nevertheless Con Law in law school?
Well, can we all at least agree that HWSNBN didn't take English?
Cheers,
From dipshite at 7:33pm:
ReplyDeleteYour farkification demonstrates pretty darned well that you have indeed become the laughingstock of the blogosphere.
Only to those how can't think for themselves.
Now go hump the leader of the hive, there's a good little drone.
Gandalf said...
ReplyDeleteGlenn: The whole point of our system of Government is that the three branches share power in all areas.
Bart: Are you sure you took civics, nevertheless Con Law in law school?
Each branch has plenary powers which are not shared by the other branches. Its a bedrock constitutional principle known as the separation of powers.
You are the first one I know of to claim that each branch shares all the other branches powers.
Gandalf: The separation of powers refers to the kind of power, executive, legislative, or judicial. It does not refer to the area in which that power is used.
Articles I and II expressly enumerate the subject matter areas in which each branch is empowered to act.
In Hamden, the Court cited to the provision of Article I which expressly empowered Congress to enact rules for Captures. There is no similar provision which empowers Congress to decide which groups may be targeted for intelligence gathering.
The Court has never held that Congress may enact statutes to regulate any subject matter area which they please.
Think about this for a second. If Congress may enact statutes to limit or eliminate the constitutional powers of the other two branches in any and all subject matter areas, then the other two branches are nullities and we have an imperial congress.
Yeah, I'm really worried about an imperial Congress right now, Bart. But I fear even more the rising power of Canada, the "sleeping giant."
ReplyDeleteDo you know that a tank could drive from Toronto to Buffalo in a matter of days? Do you know that Canada and our old enemy Britain form part of an international entity called "the Commonwealth"? That this entity has featured prominently in many noted spy movies, and 2 world wars?
And by the way---I've been to that so-called "border" with our neighbor to the north, and let me tell you, our defenses there are a joke. It's only a matter of time.
Spread the word!
But Arne L., you weren't supposed to say that! Without that identifying word, how are we to be sure that it's really Bart?
ReplyDeletelee said...
ReplyDeleteBart: "There is no similar provision which empowers Congress to decide which groups may be targeted for intelligence gathering."
Which is why it should be regulated by the 4th Amendment.
The courts of appeal have already unanimously held that the 4th Amendment does not require warrants to conduct intelligence gathering (not criminal evidence gathering) against foreign groups and their agents in the United States (citizen or no). A much more liberal Berger Supreme Court denied review in all of these cases.
"If Congress may enact statutes to limit or eliminate the constitutional powers of the other two branches in any and all subject matter areas, then the other two branches are nullities and we have an imperial congress."
Excellent, that means that the current bills to regulate what and where the judicial branch can hear should be unconstitutional.
The Constitution expressly grants Congress several powers to establish the jurisdiction of federal courts.
And that Specter's bill to void the 4th Amendment should also be unconstitutional....right?
Where does the Specter bill "void the 4th Amendment?"
Congress has clear Constitutional authority.
ReplyDeletetake one part:
"To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"
add
"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
and you get Congressional authority to legislate wiretaps. you dont even need the 4th amendment.
I think the much weaker argument in Article 2. I mean, wiretaps have nothing to do with running an army and it isnt "executing" the laws of Congrees. ( It is in direct contravention.) the crazed ideas of "inherent" authority is with-out foundation in this republic.
also, I would suppose that 20+ years of executive compliance of FISA would also point to the constitutionality of Congress' authority to legislate in that area.
ReplyDeleteIIRC, in one of the old National Bank cases, the SC used the historical acceptance of the Bank as a factor which weighs on the side of the Constitutional ability of Congress to pass such legislation.
and we havent even got to Congress' concurrent war powers.
ReplyDeleteBart's overall theory of the Constitution is that Congress is limited to narrow and specific powers set forth in Article I whereas the President has almost unlimited implied powers the Constitution never so much as mentions. The fact that such powers are never mentioned is, in itself, proof that they are beyond Congressional control. I myself think that the President's powers most entitled to deference and most beyond the control of Congress are the ones expressly granted, such as the powers of veto and pardon.
ReplyDelete"The Congress may not limit the President's Article II power to gather intelligence..."
ReplyDeleteSez exactly what court case that followed the 1979 passage of FISA (which limited the President's Article II power to gather intelligence)? No court case, that's what. And yet you state this as though it was established fact.
bart, given your apparent confidence in this flatly-stated assertion of yours, you'd certainly think the administration would be eager as heck to see this tested in front of the Supreme Court ASAP, and finally have confirmation of such a self-evident truth. And yet the administration repeatedly challenges standings and invokes state secrets privilidge for the sole purpose of ensuring that no such test takes place. Strange, that, eh, bart?
As jao says, "Mr. President, tell it to the judge."
"...any more than the President may enact his own legislation to create the NSA and to fund the NSA Program."
Um, hate to tell you this, Bart, but that's almost exactly what the president did.
From the National Journal (2/23/06):
"A controversial counter-terrorism program, which lawmakers halted more than two years ago amid outcries from privacy advocates, was stopped in name only and has quietly continued within the intelligence agency now fending off charges that it has violated the privacy of U.S. citizens.
Research under the Defense Department's Total Information Awareness program -- which developed technologies to predict terrorist attacks by mining government databases and the personal records of people in the United States -- was moved from the Pentagon's research-and-development agency to another group, which builds technologies primarily for the National Security Agency, according to documents obtained by National Journal and to intelligence sources familiar with the move. The names of key projects were changed, apparently to conceal their identities, but their funding remained intact, often under the same contracts."
http://nationaljournal.com/about/njweekly/stories/2006/0223nj1.htm
See you out on the barricades, bart, joining me in protesting this illegal and inappropriate executive overreach.
Patrick Meighan
Venice, CA
And since the lawyer types are back to debating the extent of the President's "inherent authority" to wiretap, can any of you tell me how the Cold War rules will apply now? Inherent authority to surveil the Soviet embassy and Soviet diplomats seems a lot less menacing than inherent authority to undertake massive date mining projects to look for terrorists. And Bart has several times emphasized the distinction between intelligence gathering and prosecution. A distinction like that made sense when dealing with embassies and diplomats from hostile powers. How can it be made to work with terrorists?
ReplyDeleteThe thing that always amazes me about authoritarian cultists like bart (I was gonna add "right-wing" but realized it was redundent...) is when the previous administration was in power, that president (un-named) was considered by them to have had almost no legitimate power to do anything. Anything that was done was questioned as a potential violation of the constitution.
ReplyDeleteBut when the shoe is on the other (cloven) hoof, the prez was actually intended to be maximum dictator for life, right?
I wonder when they'll figure out that Worst President Ever is not bound by the 22nd amendment...
enlightened layperson:
ReplyDeleteI think the real issue is that bush acted contrary to explicit Congressional law when bush abrogated FISA.
your question is interesting. I dont think anyone would argue that the president (or more specific the NSA) does not have the right to spy on non-citizens outside of the USA. Non citizens inside the USA I'm not clear on. Spying on citizens falls into FISA and the 4th amendment. Which it should, as Congress has clear authority to legislate there. But even there, as long a NSA gets a warrant - no problem. (This means that the espionage satisfies the 4th amendment.)
What in the hell is " / * and why do I see it everywhere anytime I look at the comments in here? Is there a blogger setting I need to fix or something?
ReplyDeleteAnonymous Coward said...
ReplyDeleteThe President has absolute authority to protect the nation against all enemies foreign and DOMESTIC. The American people wouldn't want it any other way, no matter what you losers think.
geeez. i looked but i cant find that in the constitution.
From anonymous at 9:51 p.m.: " The President has absolute authority to protect the nation against all enemies foreign and DOMESTIC."
ReplyDeleteDoes The President also get to determine who exactly are the enemies, foreign and domestic? If so, does that power extend to all Presidents, or just this President? If just this President, can you point to the statute, Constitutional language, binding legal document, or other similar authoritative text that explicity ascribes such power to this President?
If the President (or this President) is the final arbiter of who is an enemy, foreign and domestic, is there any recourse for individuals, groups, or institutions, to appeal their "enemy" status should they be so ascribed?
Is there any condition under which the President (or this President) no longer needs to categorize enemies foreign and domestic? If so, does the President (or this President) determine when that time occurs? If so, can you please cite the relevant documentation as per above?
In order to more fully defend the United States from enemies foreign and domestic, does the President (or this President) have the ability to cancel elections, suspend or disband Congress or the Judiciary? If so, do such powers have a period of cessation, and if so, who determines that period? If there is a period of cessation on such powers, how is cessation of such powers enforced in light of a suspended/disbanded Congress and Judiciary?
Thanks.
Also, why a king?
Rob
euphronius said...
ReplyDeleteCongress has clear Constitutional authority.
"To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;"
add
"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."
and you get Congressional authority to legislate wiretaps.
OK, take your argument on its next step - Exactly how do top secret wiretaps conceivably affect interstate commerce?
Even if you assume communications are commerce, wiretaps are not communications nor do secret wiretaps change the behavior of those who are engaged in communications.
You are the second to use the commerce clause argument. The first could not answer the above question.
I think the much weaker argument in Article 2. I mean, wiretaps have nothing to do with running an army and it isnt "executing" the laws of Congrees. ( It is in direct contravention.) the crazed ideas of "inherent" authority is with-out foundation in this republic.
These "crazy ideas" are well established court precedent. No one challenging this program claims that Article II does not give the President these powers. Rather, they claim that Congress somehow has the authority to limit this established Article II power.
That is how we always get back to the question of what provision of Article I grants Congress the power to direct intelligence gathering? The entire issues starts and ends with this question.
yankeependragon said...
ReplyDeleteI meant "ahead of the curve."
Read as such, but "ahead of the curse" is pretty good, too. It's a great place to be.
Anonymous said...
ReplyDeleteThe President has absolute authority to protect the nation against all enemies foreign and DOMESTIC. The American people wouldn't want it any other way, no matter what you losers think.
You are correct. I wouldn't want it any other way. He should protect us all from our greatest domestic enemy and choke on another pretzel. He would be doing his country a great service.
Patrick Meighan said...
ReplyDelete"The Congress may not limit the President's Article II power to gather intelligence..."
Sez exactly what court case that followed the 1979 passage of FISA (which limited the President's Article II power to gather intelligence)? No court case, that's what. And yet you state this as though it was established fact.
I am relying upon unanimous court precedent which holds that the President has the Article II power to direct warrantless intelligence gathering.
In response, you claim that Congress can limit that power through FISA. In order to prove this claim, you have to show where Congress has a superior constitutional power to the President's established Article II power.
I do not have to provide any precedent to prove the negative to your assertion. Rather, you have to support your assertion.
So, go and support your argument.
bart, given your apparent confidence in this flatly-stated assertion of yours, you'd certainly think the administration would be eager as heck to see this tested in front of the Supreme Court ASAP, and finally have confirmation of such a self-evident truth.
The President can already point to provisions of the Constitution and several cases which establish his authority. He need not establish a thing.
If you can find a single person harmed by this program, it is up to them to establish Congress' authority.
"I am relying upon unanimous court precedent which holds that the President has the Article II power to direct warrantless intelligence gathering."
ReplyDeleteI do not dispute that, bart. But that statement is a long way from your original statement, which is this:
"The Congress may not limit the President's Article II power to gather intelligence..."
You made that assertion, bart. They're your own words, and no one else's. And it is that specific assertion, bart, the one that you made, that I have challenged you to support with evidence. So, please, Bart DePalma, Esq., either now support the thus-far unsupported assertion that you have made ("The Congress may not limit the President's Article II power to gather intelligence"), and do so with evidence, or simply concede that you, Bart DePalma, Esq., were simply talking out of your butthole, and we can all go on with our lives.
I'm waiting, bart. And waiting... and waiting... and waiting...
Patrick Meighan
Venice, CA
Personally, with all due respect as I think he is very smart and I read all the things he writes and understand he is an admirable person, I don't think Marty Lederman has cause to be astonished about anything.
ReplyDeleteThis is what happens when people who are in the public spotlight like Marty Lederman, people everyone in Washington reads and respects, fail to take the MOST STRIDENT position and one based also on moral questions and cry out at the first signs of trouble. There's no point ceding ownership of these issues to Opus Dei and then being astonished at what results from such a failure to RESIST THE BEGINNINGS forcefully enough.
That's just my own opinion. But it's pretty obvious, or should be, that the reason I most like Glenn and Justin and PCR is because they don't mince words and will call a moral outrage a moral outrage and a clear violation of the Fourth Amendment a CLEAR VIOLATION OF THE FOURTH AMENDMENT.
And you know what else? Now that I am getting mad about the rigor mortis status of the Constitution I also want to add that even if no other person in America cares, I for one am SICK of this little game going on between Orin Kerr and Marty Lederman of saying "I didn't really have time to read the blah blah blah but my initial opinion is blah blah blah."
Then the issues are never revisited and we get the Specter bill, a bill that imvho was probably enabled by people like the two I just referenced above.
TAKE THE TIME. What the heck are you working on? We are talking about the Constitution and the future of this country.
Then Glenn gets critized for writing long posts. Glenn takes the time and I for one, as someone who despises fascism, am very indebted to him for doing so.
That is how we always get back to the question of what provision of Article I grants Congress the power to direct intelligence gathering? The entire issues starts and ends with this question.
ReplyDeleteum, the same provision which lets Congress fund the NSA?
regardless, the prez does not have unlimited doemstic intelligence gathering powers where it conflicts with law. unless you are positing an emporer/sun king. the "times of war" or "times of insurrection" exceptions are all explicitly laid out in the text.
i forgot power of the purse. another trump of the prez. Ill get back to you re commerce clause. I want to find a cite for you. i need to find my lexis password.
bart:
ReplyDeletemy lexis password is at work. ill find a commerce clause cite tomorrow. I'll just go ahead and assume you'll be here.
Bart sezs:
ReplyDelete"If you can find a single person harmed by this program, it is up to them to establish Congress' authority."
Or is it constitutional right of Congress to set the guidelines so that no single citizen is harmed by this program?
Spying on someone means building a dossier. Some of the information collected during spying has no connection to the court case and that information must be destroyed. I would like to see some third party oversight on this because I don't trust the government in power to do it. Especially the one who cooks foreign intelligence data.
The last paragraph of Specter's article was interesting because he seemed to implying this is the best we can do so we had better do it. Having to write an Op-Ed piece about a piece of legislation generally means that there isn't very much ground support for it.
From Bart at 10:40pm:
ReplyDeleteIn response, you claim that Congress can limit that power through FISA. In order to prove this claim, you have to show where Congress has a superior constitutional power to the President's established Article II power.
I do not have to provide any precedent to prove the negative to your assertion. Rather, you have to support your assertion.
So, go and support your argument.
Exactly how many times does this have to be repeated? One more time:
Article I.8.14 grants Congress, quite explicitly, the authority "To make rules for the government and regulation of the land and naval forces". Read as simply as possible, this means Congress can pass any regulation it sees appropriate upon any government agency or any of the branches of the armed forces.
And before you start objecting it applies "only" to the "uniformed services", thus exempting "civilian personnel" of the NSA or the like, let's repeat the clause in question:
"To make rules for the government and regulation of the land and naval forces."
Nothing about applying only to specific elements of 'the land and naval forces'. Nothing limiting the scope or scale of the regulatory reach this Clause allows.
So, Bartholomew, any response? Any case law that addresses this? Ready to actually argue your position for a change?
Another argument!
ReplyDeleteAmendment XIV
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
No I know a Privilegs and Immunities argument is dead in the water. So what about a due process argument? is no spying on me a violation of my liberties with out due process? (the due process being the FISA mechanism.)? How can you say im NOT being spyed upon? isnt the "chilling effect" an infringement?
(mind you these are all secondary arguments)
Wingnuts/Trolls like Bart think they're going to benefit from the crumbs that will fall off the Great Dictator’s table (Stalin, Hitler, Mao, Marcos, Noriega, Hussein, etc.). Some of them even think they might rise through the ranks to become someone important. The most arrogant think they might get a cabinet position or something.
ReplyDeleteFortunately for the rest of us - who still have a moral compass - grasping, power obsessed, social/political climbers like Bart seldom gain anything more than a swift bullet to the skull during the next party purge. If they get past that, they may go on to a war crimes trial. Seldom does history have anything more to say about them.
(In Bart’s case, he will just switch allegiance over to the next guy that comes along claiming to be able to set the whole world right, if only he’s given enough power. Guys like Bart always float like scum on the surface of whatever sewage is polluting the world…)
Let’s face it, Bart, you’re a small man (mentally at least) whose life will never have any more meaning than it has now: a few nasty remarks made on a lefty blog, totally missing the essential point of any discussion, and by your very words proving every point that Glenn Greenwald brings to our attention…
I think Arnie said it best with FOAD…
Jao-
ReplyDeleteTo be fair to Bart (i know I know) the Commerce clause is in great flux these days and it is actually not a straight forward analysis, at least IMHO. I think it is clearly more "commercy" than school anti-gun zones. But I don't know.
Well, well, well..it looks like Greenwald is only the tip of the iceberg as wingnut sock puppeteers are concerned.
ReplyDeleteHis old buddy Jason Leopold of TruthNot just got busted too.
Was this a Clownhouse mandate from Don Kos of la Kosa Nostra?
From dipshite at 11:19pm:
ReplyDeleteWell, well, well..
You still here?
OMG.
ReplyDeleteHave you ever seen Jason Leopold and Glenn Greenwald in the same place together at the same time. I HAVENT EITHER.
Scandal!!!!
You know, "Dipshit", your name says all anyone would need to know about you. Thanks for making it easier...
ReplyDeleteyankeependragon said...
ReplyDeleteFrom dipshite at 11:19pm:
Well, well, well..
You still here?
11:22 PM
Nope..that was my sock puppet, Raoul my Brazilian manservant
OMG
ReplyDeleteJames Madison posts under the name Publius AND james madison1789.
james madison is thus discredited.
anonymous at 10:49 p.m. said, "Bart, you are a god-damned scourge. You and your kind are a malignancy that needs to be cut out before you kill us all."
ReplyDeleteI suspect this is the kind of comment that rewards the royalist posturing.
Don't get me wrong: when I'm not finding it baffling, or laughable, I find the royalist rhetoric infuriating, too. I just think that some of the royalists are trying to get a reaction, and I suspect that reacting spurs such royalists to continue.
I apologize for post-nannying/policing. I stand by the remark, but I understand if it comes across as presumptively critical instead of constructive, which is the spirit in which it was intended.
In the meantime, I wish you, and myself, peace and good mental and emotional equilibrium. I think I'll pour myself a shot of equilibrium right now.
Rob
Go check out Seixon's blog where he catches Leopold playing with sock puppets.
ReplyDeleteIt's kind of strange though, Leopold gets a bit threatening.
We should probably call his sock puppet Chuckie.
from euphronius: "unless you are positing an emporer/sun king."
ReplyDeleteI suspect that's exactly what the royalists/totalitarianists/
autocratists are positing. And proposing.
Why a king? Apres moi, le deluge seems a poor approach to policy and statehood.
(I'm afraid my formatting kung-fu is weak, and so I'm unable to properly place the accents on that quote.)
Rob
Bart: I am relying upon unanimous court precedent which holds that the President has the Article II power to direct warrantless intelligence gathering.
ReplyDeletePower, yes. Absolute, unlimited power, obviously not. That's where the checks and balances idea comes in.
In response, you claim that Congress can limit that power through FISA. In order to prove this claim, you have to show where Congress has a superior constitutional power to the President's established Article II power.
Not superior power. Different power.
Think about this for a second. If Congress may enact statutes to limit or eliminate the constitutional powers of the other two branches in any and all subject matter areas, then the other two branches are nullities and we have an imperial congress.
Surely you must see that the same argument can be applied, mutatis mutandis, to both other branches of government:
Think about this for a second. If the President may take any action that violates the constitutional powers of the other two branches in any and all subject matter areas [by flatly ignoring Congressional statutes and evading judicial review], then the other two branches are nullities and we have an imperial Presidency.
“Dipshit” calls his sock puppet "Charlene". Poor Charlene is getting smelly, splotchy, and kind of stiff.
ReplyDeleteMaybe you can ask you mom to wash “Charlene” for you...?
I know, I know, she’s gonna get all pissy, and try to lecture you about keeping your body and your mind clean, but what does she know? I mean, she’s not the one that has those Ann Coulter dreams, you know the ones, where Ann keeps commenting about “what a big man” you are, and how she doesn’t know if it’ll fit, and it might hurt, but she wants it so bad she can’t stop you… You know what I mean…
Maybe the next time you’re at WalMart, you can get a whole bag ‘o socks (the nice white athletic ones you like so well…?) and that way you can switch to another “Charlene” one the first one is too yucky to use. Good idea, huh?
What Bart calls his is just too much to imagine...
Gandalf: good post. That helped my thinking.
ReplyDeleteand the funny thing is, we arent even really discussing bush's claim to abrogate the bill of rights! regardless of whether Congress has the authority for FISA type legislations, bush still cant do what he want because he would abridge our constitutional rights. Unless we lost them when bush declared the forever war
jao said: "Your methods of argument are anti-intellectual, anti-constitutional, tactically foolish and just plain dumb. Cheney, Specter and even bart smile to themselves whenever emotional hyperbole from naive critics like you plays into their trap. After all, their position is that the Fourth Amendment is the one legal issue that really matters.
ReplyDeleteLegal and political arguments are not won by mistaking the Constitution for what makes you feel good; they certainly can be lost that way."
These are good points, and I suspect it applies to me, too, which is why I'm woefully unqualified to make legal argumentation, and probably won't (and generally don't) win political arguments. Unfortunately, for me, much of how I relate to these issues comes down to how I "feel." But as you note, that's not the way to win the fight!
I just wish I could help the fight in some way (I'm trying to educate myself on the issues, but damn, I'm a slow study heh).
In the meantime, I'm grateful Glenn and yourself and arne and william timberland and many others are fighting the good fight.
And now, I expect royalist derision for my clear sychophantry! :) You just can't win.
Good night, and thanks again for everyone's hard work.
Rob
anonymous: Read as such, but "ahead of the curse" is pretty good, too. It's a great place to be.
ReplyDeleteCan I get driving instructions from google? I've been behind the curse since 1980.
And if you drop by later, Arne, please note that it ain't me who's arguing with HWSNBN this evening.
As for the actual topic of discussion, I usually think that speculating about motives is pertinent in discussions about actions as perplexing as Specter's. With the usual caveats, of course, about psychoanalyzing adversaries, or contributing to a paranoid culture in politics. I admit that in this situation, though, I'm completely stumped. If I take Specter at his word today in the WaPo today, the end-to-end string of non-sequiturs simply shorts out all my analytical neurons. So...is he stupid, crazy, being blackmailed, or on drugs? Or is it me? Damned if I know, and damned is probably precisely the right word.
I'm astonished also that none of our friends from the right see any danger at all in an executive branch that can call up the entire history of your life on a flat-panel screen in the office of someone like Karl Rove, if not Karl Rove himself.
Is it really of no concern to them that if you then happen to piss Karl Rove off, what happened to Valerie Wilson or Jack Murtha is going to seem like child's play compared to what you'll be treated to?
And do they really think that if the President doesn't have to tell anybody in Congress what he's doing to "gather intelligence," or why, or how, or where, that he might not gather a bunch of it on people he feels to be inconvenient to running thisgs the way he thinks they should be run? Regardless of whether or not they're foreign or domestic?
I mean, Christ, if the right can be endlessly paranoid about Glenn's opinions, why would they not worry about someone who could actually do them immeasurable harm? Don't they read any history at all?
Can it really be as simple as "he's our guy, and you're not? Is this endless shoveling of sophistry, mendacity and just plain bullshit on everyone who points out the potential dangers justified by mere partisanship?
At this point the question isn't whose universe this is, it's what universe this is. Sadly, nothing I've seen here so far is much consolation.
"You are the second to use the commerce clause argument. The first could not answer the above question."
ReplyDeleteYikes--that wasn't me, was it?
"That is how we always get back to the question of what provision of Article I grants Congress the power to direct intelligence gathering? The entire issues starts and ends with this question."
Yes and no--I don't think the question is really whether Congress has the power to direct intelligence gathering (though I do think there is something to the argument that their power to regulate the "land forces" plausibly extends to intelligence services). Rather, it's a question of what Congress has the right to defend.
William Timberman & Arne - I know I’ve been feeding the trolls, but it’s been too much fun. Please forgive me…
ReplyDeleteI have to say, after what I’ve seen going on with the current administration, it’s a lot easier for me to imagine how a short, ugly dark-haired, cowardly, WWI corporal could convince an entire nation to become paranoid worshipers of a fictional race of tall, blond-haired, handsome, heroic, manly men. Those same people could then become so easily manipulated that many would happily lay down their lives for that short, ugly, miserable, paranoid, with a god complex. They would treat his every word, no matter how nonsensical, as revealed truth that must be obeyed…
We’re there folks…
NobodySpecial said...
ReplyDeleteBart: I am relying upon unanimous court precedent which holds that the President has the Article II power to direct warrantless intelligence gathering.
You forgot to add, 'against foreign powers and agents of foreign powers.'
Finally, someone finally gets the law!
I only had to repeat this for 5 months...
Of course, were you to DO that, then the President would have to positively show that his wiretaps ONLY act against such...
The President has done just this for Congress.
In all other cases, his wiretaps MUST be reviewed by the courts, which has not been so done.
Not true. The President is the most frequent user of the FISA court to gain warrants for criminal evidence collection in national security.
Not a single person convicted of national security crimes since 9/11 has been able to get evidence suppressed based on the lack of a warrant.
So now what is Specter doing?
ReplyDeleteWASHINGTON - A powerful Republican committee chairman who has led the fight against President Bush's signing statements said Monday he would have a bill ready by the end of the week allowing Congress to sue him in federal court.
Patrick Meighan said...
ReplyDeleteThe Congress may not limit the President's Article II power to gather intelligence..."
You made that assertion, bart. They're your own words, and no one else's. And it is that specific assertion, bart, the one that you made, that I have challenged you to support with evidence.
Fair enough. I will support the negative with the fact of a complete absence of legal authority for the positive assertion that Congress possesses this power.
Not a single provision of Article I refers to intelligence collection either generally as an executive or CiC act as does Article II or expressly the way it provides Congress with the power to set rules for Captures.
Not a single court case has ever read a penumbra to invent a holding that Article I provides Congress with the power to direct intelligence gathering.
Given that you did not offer any legal authority yourself, I take it that you agree with me.
yankeependragon said...
ReplyDeleteFrom Bart at 10:40pm: In response, you claim that Congress can limit that power through FISA. In order to prove this claim, you have to show where Congress has a superior constitutional power to the President's established Article II power.
I do not have to provide any precedent to prove the negative to your assertion. Rather, you have to support your assertion.
You have this in reverse.
You claim Congress has the power, which is a positive argument requiring proof.
I point out that Congress has no such power by pointing out your lack of proof.
I do not have to prove a negative, which is impossible,
Exactly how many times does this have to be repeated? One more time:
Article I.8.14 grants Congress, quite explicitly, the authority "To make rules for the government and regulation of the land and naval forces". Read as simply as possible, this means Congress can pass any regulation it sees appropriate upon any government agency or any of the branches of the armed forces.
Another positive argument and an extension of your older untenable argument.
And before you start objecting it applies "only" to the "uniformed services", thus exempting "civilian personnel" of the NSA or the like, let's repeat the clause in question:
"To make rules for the government and regulation of the land and naval forces."
Nothing about applying only to specific elements of 'the land and naval forces'.
Huh? Which part of "of the land and naval forces" did you not understand? This is a limiting clause. By definition, Congress does not have the authority to set rules for the Interior Department under this provision.
Once again, this is your argument, so prove it. Show me a single case over the past two centuries which applies this provision to civilians.
Nothing limiting the scope or scale of the regulatory reach this Clause allows.
This provision limits rules to those "for the government and regulation" of the uniformed services.
The plain meaning of government and regulation when applied to the military is the good order and discipline of its members or persons such as captures controlled by the military through the enactment rules such as the UCMJ.
Once again, this is your argument. Find me a single case where this provision has been applied to any regulations outside of the limits I just described.
I cannot cite to cases supporting a negative. It is up to you to provide the legal authority for your argument.
"I will support the negative with the fact of a complete absence of legal authority for the positive assertion that Congress possesses this power."
ReplyDeleteThere is a similar dearth of legal authority for the positive assertion (*your* assertion) that Congress may not limit the President's Article II power to gather intelligence. And yet you are the one who made this exact positive assertion, and an unqualified one at that: "The Congress may not limit the President's Article II power to gather intelligence". And you still have failed to provide actual evidence to support this claim, bart.
Please note, bart, a cite *actually* supporting your assertion would be an example of some evidence that proves its truthfulness. However, a lack of a known cite that contradicts your assertion is *not* an example of evidence that proves your statement's truthfulness. For you pretend that it is (as you do above) is to resort to Appeal to Ignorance, a logical fallacy. That may work in small claims court in Colorado, Bart DePalma Esq, but not so much, here.
"Not a single court case has ever read a penumbra to invent a holding that Article I provides Congress with the power to direct intelligence gathering."
Nor has a single court case ever held the opposite: that Congress may not limit the President's Article II power to gather intelligence. And yet that was your specific, unqualified assertion: "The Congress may not limit the President's Article II power to gather intelligence..." And so I'm still, STILL, waiting for for you to provide evidence (like, you know, a citation or two) to support your own assertion: "The Congress may not limit the President's Article II power to gather intelligence..."
So, again, bart, be a good DUI lawyer now and provide a cite to support your own very specific and very flatly-stated positive assertion, "The Congress may not limit the President's Article II power to gather intelligence".
Oh man, I can't wait to read that cite you're about to share with us all, Bart DePalma, Esq. It's gonna be so powerful and persuasive! So lay it on us!
Many thanks,
Patrick Meighan
Venice, CA
JaO said...
ReplyDeletebart: Exactly how do top secret wiretaps conceivably affect interstate commerce?
Even if you assume communications are commerce, wiretaps are not communications nor do secret wiretaps change the behavior of those who are engaged in communications.
What sophomoric, ignorant reasoning. It flies in the face of years of precedent. (I note that bart offers zero authority other than himself to support his own wild generalizations.)
Ah, the first person to raise the commerce clause argument...
Once again, I point to the utter lack of case law holding that intelligence gathering somehow constitutes commerce.
Findlaw, U.S. Constitution Article I Annotations:
Commerce .--The etymology of the word ''commerce'' carries the primary meaning of traffic, of transporting goods across state lines for sale....But, today, ''commerce'' in the constitutional sense, and hence ''interstate commerce,'' covers every species of movement of persons and things, whether for profit or not, across state lines, every species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise, every species of commercial negotiation which will involve sooner or later an act of transportation of persons or things, or the flow of services or power, across state lines. ...
The bolded claim that the CC somehow affects the transmission of intelligence caught my eye, so I looked at the cited cases...
[Footnote 586] E.g., United States v. Simpson, 252 U.S. 465 (1920); Caminetti v. United States, 242 U.S. 470 (1917).
These cases have nothing to do with the transmission of intelligence.
Simpson upheld a law concerning the possession of alcohol during Prohibition. Alcoholic beverages are obviously a product of commerce.
Caminetti upheld a law concerning the transportation of underage women across state lines. Once again, commerce.
I have no idea to what this author is referring when he claims that the CC applies to the transmission of intelligence. These cases have nothing to do with intelligence collection.
Care to try again?
Okay, bart, prove to us that the Commerce Clause does not apply to regulation of domestic wiretapping by you, me, the Rotary Club, government employees and everyone else?
I do not have to prove the negative. You are making the claim. Show us any case at all which claims that the Commerce Clause covers government intelligence gathering.
Do you also claim Title III is unconstitutional for the same reason? If not, under what authority does Congress regulate surveillance by that statute.
The Necessary and Proper Clause enforcing the 4th Amendment.
The 4th Amendment does not require warrants for intelligence gathering, so Congress could not be enforcing the 4th Amendment when it attempts to require warrants for intelligence gathering.
Your general argument is so frivolous that even DOJ does not make it.
I am offering a rebuttal to your CC argument.
Justice has not rebutted this argument because no one challenging the legality of the NSA Program thought it rational enough to argue it before a court.
Bart isn't real, is he? There must be some machine behind all that crap, a machine that needs badly to be rebooted...
ReplyDeleteFrom Bart at 12:37am:
ReplyDeleteHuh? Which part of "of the land and naval forces" did you not understand? This is a limiting clause. By definition, Congress does not have the authority to set rules for the Interior Department under this provision.
This is not, in fact, a limiting caluse, at least by my reading. And this same Clause gives the Congress the authority to "set rules for the government". That includes every department of the Cabinet, the Civil Service, EVERYBODY!
This provision limits rules to those "for the government and regulation" of the uniformed services.
It does nothing of the sort, rather the reverse in my reading. But then you and I are simply reading the words a bit differently; perhaps your interpretation would bear out in Court, or perhaps mine would. Given there has been no occasion to test either before the Court at any level (so far as I am aware of), this is all rather hypothetical just now.
I cannot cite to cases supporting a negative. It is up to you to provide the legal authority for your argument.
You're constant request for "case law" supporting my position runs aground I'm afraid on the obvious: I'm quoting the bloody Constitution of the United States! You can't get much more definitive in terms of US law than that, can you? Or are you invoking some Divine Right of Kings?
The plain meaning of government and regulation when applied to the military is the good order and discipline of its members or persons such as captures controlled by the military through the enactment rules such as the UCMJ.
That's perhaps been the understood consensus to date. This doesn't mean however that tomorrow the Congress might decide to start micro-managing all the branches of the armed forces and every government agency in the book, all of which I argue could be enacted legally under the aforementioned clause.
You of course argue differently, so I will point out one last time: neither of our respective interpretations has actually as yet been tested in Court. Until this happens, you will continue to hold your view, I will hold mine.
Hence our ongoing disagreement.
jao: Can you show me a single in-context quote from Glenn that makes that capitalzed assertion without qualification or intellectual reservation? I've seen some strong rhetoric from him, but no such statement of legal analysis.
ReplyDeletejao, if my post conveyed the message that I thought Glenn had come out and said warrentless spying was a clear violation of the Fourth Amendment, I apologize.
I was saying that IF Glenn thought x,y,or z, he would say so clearly and not beat around the issue with a bunch of legal technalities.
Glenn has addressed himself mainly to the issue that warrentless spying is breaking the law now on the books.
And you bring up "the law." This baffles me. If "the law" and whether that law is constitutional were as clear as you maintain, the Justices on the SC would always be unanimous in their rulings.
With regard to what violates the Constitution and what does not, that is clearly a matter of interpretation and each Justice brings a lifetime of personal "slant" to those decisions.
Only a person who buys the party line the way you do would think it is written in stone what is a violation of the Constitution and what is not.
I decide that for myself. As I understand it, the Constitution is a document between me and my government and I always like to read the fine print in documents which affect my life.
I read the arguments of others of different viewpoints who are more expert than I on the technical issues like case law and prior SC decisions and then I decide which argument is most persuasive and take that into account, but the final decision is mine.
'Kay?
I do think Glenn addresses many issues to do with the what he considers to be proper interpretations of the Constitution on these key issues of individual rights in his book, including the issue of habeas corpus.
When Glenn gets around to commenting specifically and directly on the issue of the Constitutionality of spying on all American citizens with or without warrants and depriving them of their right to privacy to "end tyranny in this world", I expect him to do so forcefully and you are entitled to your opinion of what he will write as I am entitled to mine.
As for PCR and Justin Raimondo, they have already weighed in on that issue in countless of their posts. I also think Glenn addresses those issues frequently in the "spirit" of his posts.
Perhaps you think you are smarter than PCR and Justin Raimondo? ::Gulp::
Moving on, Orin Kerr stated that the government spying on Americans without warrants was a violation of the FISA statute but was not a violation of the Fourth Amendment.
It is I who disagree with that.
Do you?
You find me dumb. I'm glad. I find you dumb. It would worry me if a person thought someone who was their direct intellectual enemy regarding these types of monumentally important issues was smart. Then change your own positions, I would counsel to such a person. Smart means to use facts and reality including one's one moral philosophy (you have one, don't you?) to come to the correct conclusions.
Now tell us all. Where do you stand on Alito's appointment and where do you stand on the issue of abortion?
PS. What are you doing on a thread about Specter? Essentially he is a water carrier. That's not something you seem to find fault with (that's your main activity too, isn't it?) so why bother to show up with your stupid (imo), Mr. President, tell it to a judge.
Who's going to make him? You??? Excuse me while I have a good laugh. You keep whistling that tune as the ship goes down. It'll give you something to do as your lungs fill with water.
I suspect they are all being blackmailed -- all the Repubs and half the Dems. What else would explain the way they behave?
ReplyDeleteFrom the major at 12:43am:
ReplyDeleteLET HIM DO HIS JOB FOR A CHANGE!!!
Since when has George W Bush actually done anything (besides clearing brush off his ranch and wreck companies he's been hired by)?
PS. Jao, you and bart talk amongst yourselves. Important work you two are doing. Let me know when you two agree how many angels can dance on the head of a pin.
ReplyDelete
ReplyDeleteLET HIM DO HIS JOB FOR A CHANGE!!!
Oh no! Yankee, you don't see how funny that is?
If that post of the Major doesn't win a blog award when the next awards come around, it'll be a disgrace.
To the Major: You're the best!
eric in ottawa said... "What has the administration got on Specter? Why the roll-over-and-put-the-4 paws-in-the-air" act?"
ReplyDeleteshoes of peace said... "I got the same dark feeling when Fitzgerald rolled over for Rove. These things give me the shivers. We've got a bunch of lawless thugs in the highest offices of this country."
I don't want to be too bluntly coldhearted toward you two, but I would like to suggest:
1) that Eric from Ottawa rethink the notion that Arlen Specter ever was anything but a whitewasher of others' nasty doings... Specter has a filthy record of playing broom wagon to the illegalities and amoralities of higher-ranking government people since he first took a political office (US Attorney).
2) that shoes of peace consider the very real possibility that Patrick Fitzgerald's supposed investigation toward indictment of Karl Rove (as well as quite a few other suppposedly targeted persons) was a dog-and-pony show designed to distract the vast majority of fairly well-meaning erstwhile skeptics, and that there never was much likelihood that The Fitz would ever blow the lid off the nefarious doings of the Cheney Admin.
It's not fun admitting you were hoodwinked, but at least the righteous anger generated by the realization can be used to catalyze some serious change, if you properly harness and tap into that righteous anger.
While the shadetree lawyers argue over how many of the enumerated rights in the Bill of Rights were trampled by the NSA's warrantless monitoring of individual citizens' communications,
ReplyDeleteit might serve the general public interest better to consider the overarching question, which is whether there is any legitimate threat now underway by ANYONE which would justify any sort of "national security" exception.
It is time to remember that none of these entities or people currently threatens the USA's citizenry:
- al Qaeda
- Osama bin Laden
- Saddam Hussein
If there were real tangible threats, POTUS Bush and shadow POTUS Cheney would have identified those threats and never would have had to justify the warrantless spying on innocent civilians by referring to the generic threat from "terrorists."
Goebbels wrote Cheney's favorite handbook on how to gain totalitarian power through fear and jingoism.
The legal arcana of Hamdan might feel interesting but they're not what will set right the wrongs now afoot in US Government.
jao (responding to HWSNBN):
ReplyDeleteAnd there is no case law that forbids Congress to regulate domestic surveillance via FISA, either. None.
Actually, HWSNBN keeps insisting that this supposed power of Dubya to snoop devolves from his duty to "protect the Constitution" (although one might wonder what kind of twisted mind thinks that someone "defends" the Constitution by short-cutting the Fourth Amendment) and at the very least implies that Dubya is to do this defence through his position as CinC. Not to mention that HWSNBN often alludes to the powers of the preznit to "direct" (or "command", whatever you call it) military decisions, which subsume "intelligence" operations.
But, at the same time, regulation of the military is one of the quite explicit powers of Congress.... HWSNBN has never addressed this inconsistency in his argument.
Cheers,
HWSNBN sez for some strange reason:
ReplyDeleteArticles I and II expressly enumerate the subject matter areas in which each branch is empowered to act.
Yet Article II says nothing expressly about intelligence gathering.
Your Honour, I move for summary judgement. My opponent pleads facts that cannot possibly win him a judgement in his favour in court.
Cheers,
HWSNBN keeps misstating the obvious:
ReplyDeleteThere is no similar provision which empowers Congress to decide which groups may be targeted for intelligence gathering.
And Congress, in enacting FISA, didn't "decide which groups may be targeted for intelligence gathering". Like Hamas. Or al Qaeda. Or AIPAC. It's a fact.
HTH.
Cheers,
HWSNBN sez:
ReplyDeleteThe Constitution expressly grants Congress several powers to establish the jurisdiction of federal courts.
HWSNBN misspelled "allocate".
Article III, section 2, paragraph 1 establishes the jurisdiction of the federal courts. Paragraph 2 specifies original versus appellate jurisdiction, but allows Congress to reallocate this as prudency should suggest.
Cheers,
euphronius:
ReplyDeleteI dont think anyone would argue that the president (or more specific the NSA) does not have the right to spy on non-citizens outside of the USA.
If Congress was to forbid it, it would be illegal.
Non citizens inside the USA I'm not clear on.
See 50 USC § 1801 et seq. (here).
The relevant distinction for the law is "United States persons" (defined in 50 USC § 1801).
If the surveillance is done domestically, FISA applies, even if "non U.S. persons" are the target.
Spying on citizens falls into FISA and the 4th amendment.
True. But incomplete. See above.
Cheers,
euphronius nails it:
ReplyDelete[HWSNBN]: That is how we always get back to the question of what provision of Article I grants Congress the power to direct intelligence gathering? The entire issues starts and ends with this question.
um, the same provision which lets Congress fund the NSA?
Indeed. If, as HWSNBN so disingenuously asserts, Congress has no power to regulate the NSA, then it follows as night follows day that Congress had no power to create the NSA to begin with. To assert that Congress can create an entity -- but not specify what it is and does -- is just as ridiculous as asserting that Congress could "direct" the specific targets of such intelligence gathering, such as saying that Hamas but not al Qaeda be snooped on (except as they do so in declaring war on one party and not the other, and specifying that intelligence against a declared "enemy" is permissible).
Cheers,
that shoes of peace consider the very real possibility that Patrick Fitzgerald's supposed investigation toward indictment of Karl Rove (as well as quite a few other suppposedly targeted persons) was a dog-and-pony show designed to distract the vast majority of fairly well-meaning erstwhile skeptics, and that there never was much likelihood that The Fitz would ever blow the lid off the nefarious doings of the Cheney Admin.
ReplyDeletePossibility? In my opinion it's a certainty and has been obvious for some time. I said that but the FDL contingent viewed him as a hero and that mind-set took over the "left" which I don't really think is the "left" (in what I consider to be the good sense of the "left", their true concern for the rights of others) and nobody talked about it. Remember his statements in support of cities putting cameras in private businesses, etc? Water carriers come in all shapes and sizes: the trick is to spot them.
Good observation, liquified.
This comment has been removed by a blog administrator.
ReplyDeleteyankeependragon:
ReplyDeleteAnd before you start objecting it applies "only" to the "uniformed services", thus exempting "civilian personnel" of the NSA or the like, ...
I've dealt with this "red herring" previously (and HWSNBN ignored it).
Even the UCMJ applies to more than the "uniformed services". See here.
Cheers,
HWSNBN is wilfully blind:
ReplyDelete[HWSNBN]: I am relying upon unanimous court precedent which holds that the President has the Article II power to direct warrantless intelligence gathering.
[NobodySpecial]: You forgot to add, 'against foreign powers and agents of foreign powers.'
Finally, someone finally gets the law!
Wrong. We've stated the law accurately since day 1. When the target is not a "U.S. person", FISA doesn't apply (except for other provisions of FISA having to do with where the intercept takes place).
I only had to repeat this for 5 months...
That wasn't HWSNBN's 'argument' these long months. And if it was, it was simply that Congress hadn't required that FISA be followed for such specific types of surveillance ... yet.
Cheers,
Freedom Fan said...
ReplyDeleteStill More Greenwald Sock Puppetry Exposed
Sock puppetry on the Internet is one thing - it's bad enough. Now it seems a hidden studio camera has caught blogger and best selling author Glenn Greenwald using a sock puppet in a recent appearance with Al Franken on Air America. This is going too far!
He's not running for office... yet. He is not a member of the press. His book is not based on false data like John (add gasoline to a fire and the fire goes out! I can prove it!) Lott's. You morons just don't get it. Hey! Has Pamela the bunny boiler been arrested trying to enter Israel yet?
Yes boys & girls the kool-aid continues to flow down the gullets of barking moonbats in vast quantities...
ReplyDeleteComing to Unclaimed Territories is just like reading the New York Times... Long on whine, short on facts and in its own sad way a rather humerous redition of how some people are inordinately proud of their cluelessness...
From anonymous at 6:42am:
ReplyDeleteComing to Unclaimed Territories is just like reading the New York Times... Long on whine, short on facts and in its own sad way a rather humerous redition of how some people are inordinately proud of their cluelessness...
Yes, yes, yes. But what does any of that have to do with this weblog, Glenn's writing, or the majority of these comments?
From arne langsetmo at 4:14am:
ReplyDeleteI've dealt with this "red herring" previously (and HWSNBN ignored it).
As have I. You get the feeling "Bart" might not actually be reading English at all? I mean, is it biologically possible for a human being to be that dense?
anonymous at 6:43 a.m. said, "Coming to Unclaimed Territories is just like reading the New York Times... Long on whine, short on facts and in its own sad way a rather humerous redition of how some people are inordinately proud of their cluelessness..."
ReplyDeleteHow grateful you must be that you don't visit here, then . . . .
Rob
"Non citizens inside the USA I'm not clear on."
ReplyDeleteSee 50 USC § 1801 et seq. (here).
The relevant distinction for the law is "United States persons" (defined in 50 USC § 1801).
If the surveillance is done domestically, FISA applies, even if "non U.S. persons" are the target.
Not quite. Surveillance conducted in the U.S. of the communications of foreign governments, factions, and entities openly acknowledged to be directed and controlled by foreign governments does not require a warrant or FISA court order if no United States person is a party to the communications.
However, if the communications are of a group engaged in international terrorism or activities in preparation therefor, then surveillance within the U.S. always requires a FISA court order, regardless of whether United States persons are party to the communications or not.
The relevant distinction is between "foreign powers" as defined in 50 USC 1801(a)(1),(2),(3) versus 50 USC 1801(a)(4). In the case of surveillance on international terrorists, the distinction of United States persons is of lesser importance.
Anonymous said...
ReplyDeleteYes boys & girls the kool-aid continues to flow down the gullets of barking moonbats in vast quantities...
I always wondered whether moonbats barked or made some other sound. But how do they drink kool-aid and bark at the same time . . .
HWSNBN is willfully blind, once again:
ReplyDeleteHuh? Which part of "of the land and naval forces" did you not understand? This is a limiting clause. By definition, Congress does not have the authority to set rules for the Interior Department under this provision.
Hmmmm. What about the NOAA? Or maybe the Public Health Service? See here for the surprise answer.....
HWSNBN will ignore this "inconvenient truth" once again, of course.
Then there's the rest of Title 10 not including Chapter 47, which -- according to HWSNBN -- is obviously null and void.....
Cheers,
Spaghetti Happens said...
ReplyDelete"What's up with Specter? It's what's up with most of the Republicans in Congress and the White House. We thought Mark Twain was joking when he said Congress was America's only native criminal class, but he obviously was not, and he certainly would expand his critique to include the presidency these days."
Observations:
(1) Despite what the Daily Kos Khorus of Kretins would argue, it is not limited to "Republicans," and party lines are not divisions of criminality. While a few Dems might theoretically in some folks' minds stand against the Cheney Admin's evil deeds, those supposedly honorable Dems have been playing lapdog. And not every Republican is evil, although simplistic minds would like you to believe such.
(2) I feel certain that Twain would have included the POTUS had his subject matter then under discussion been the bizarrely unethical behavior of the then-sitting POTUS.
First: thanks to all who have replied to my posts.
ReplyDeleteSecond: in the thread above, too, because this might just be a dead thread.To Bart:
[Please excuse where I use all caps; I only do it to make it a little easier to read]
Last night I claimed Congress had authority to make laws regarding wire-taps because of the commerce clause. You challenged me to provide citations. Here you go:
First, Congress passed the Federal Communications Act
for the purpose of regulating interstate and foreign commerce in communication by wire and . . . for the purpose of national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication . . .. 47 USC 151.
Please note the that the Congressional intent includes both interstate and foreign communications and this is based on COMMERCE authority. Please also note that Congressional intent included NATIONAL DEFENSE. So, Congress is asserting its Constitutional authority to legislate in areas of national defense, something perhaps today the Sun King would find hampering.
Second, In this same act
§ 605. Unauthorized publication or use of communications
(a) Practices prohibited. Except as authorized by chapter 119, title 18, United States Code [18 USCS §§ 2510 et seq.][THIS IS THE FEDERAL CRIME CONTROL ACT. AS WE ALL KNOW, TO GET A WIRETAP YOU NEED WARRANT UNDER THIS ACT AND FISA], no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney, (2) to a person employed or authorized to forward such communication to its destination, (3) to proper accounting or distributing officers of the various communicating centers over which the communication may be passed, (4) to the master of a ship under whom he is serving, (5) in response to a subpena issued by a court of competent jurisdiction, or (6) on demand of other lawful authority. . . .
Thirdly, Please also note
§ 606. War powers of President (it is a long section so I will not quote it here.) This section does not contain any EXPLICIT authorization for the President to carry on with illegal wire-taps. And, in attempt to cut off a predictable rebuttal – PLEASE NOTE THAT BUSH SOUGHT WIRE TAPPING POWERS BEFORE 9/11 AND BEFORE THE AUMF.
So, in total, we have Congress passing a comprehensive Act dealing with INTERSTATE and FOREIGN communication based on its COMMERCE and NATIONAL SECURITY authority. This Act make wire-taps with out warrants EXPLICITLY ILLEGAL and does not give the president EXPLICIT power to conduct ILLEGAL WIRETAPS.
Now, last night I claimed I could find Supreme Court citations which uphold the constitutionality of Congress’ authority to act. Well, I searched and there isn’t any because the Supreme Court has never considered the constitutionality of the FCA. It may be true that lower courts have – in fact I’m sure of it. But the constitutionality of Congress to pass such a law as the FCA haas never been seriously challenged. In fact, if one thinks about it, it is almost ludicrous to think Congress shouldn’t have such power. But there you go.
From liquified viscera: "those supposedly honorable Dems have been playing lapdog. And not every Republican is evil"
ReplyDeleteA good point, and I think it's indicative of problems with the media control of messages. Not every Republican is evil, but I'm not hearing very much from those that aren't evil decrying the foul deeds of fellow party members (not saying some of the good ones are not decrying, just that I'm not hearing it/seeing it reported). I also allow for the possibility that I'm not looking in the right place, or making enough effort to find it, but if it requires significant effort to find, what are the chances a majority of the populace is hearing it/seeing it?
Rob
I would like to hear "bart" answer these questions, if he would...
ReplyDelete(1) In examining a question of Consitutionality (federal, not state or otherwise), what are the limits of interpretation? For example, is the Constitution's express language a language of exclusion, such that anything not expressly listed in the text of the Constitution is not a question of Constitutional Law?
(2) How do we understand the modern relevance of the Constitution in light of the many differences between now and the late 1700s? For example:
- The USA has changed radically and has almost 4 times as many states, two of which are not contiguous to the other 48.
- The types of communication and commerce are radically different, given the technological advances since the late 1700s.
- The role of religion or of "God" in the average American's life is significantly different.
- The methods of war are vastly different.
- Given that "spying" in the late 1700s was limited to actual aural eavesdropping without technological aid, was the Congress beyond its power when it considered and enacted FISA, since FISA deals with technologically advanced forms of "eavesdropping"?
- Is the Congress wrong to legislate against certain "controlled dangerous substances" that man has synthesized in the years following the late 1700s?
- Since automobiles and internal combustion engines didn't exist in the late 1700s, should all legislation dealing in any way with internal combustion powered transport of humans or goods be nullified?
desert son said...
ReplyDelete"Not every Republican is evil, but I'm not hearing very much from those that aren't evil decrying the foul deeds of fellow party members (not saying some of the good ones are not decrying, just that I'm not hearing it/seeing it reported)."
Rob, I would humbly submit that you're probably not looking in the right places.
First you must distinguish between the true Conservatives and the neoFascist "neoCons", who are little more than Authoritarianist sycophants of the sort that John Dean's new book documents and explains. True Conservatives may have gone along with the Cheney Admin at the start because it represented a shift from Clintonian politics (which were centrist and not liberal, but still were more "socialist" than traditional Conservatives would prefer), but many have become disaffected by the lies sold on Operation Iraqi Freedom's impetus, on the Patriot Act, on the election finnageling in 2004, on the sad incompetence of Alberto Gonzales, on the "immigration" issue that is veiled bigotry.
When the NSA spying story first broke, a good number of Repubs spoke out against it. Not all were sitting in the Congress, but as you mention, most of the public discussion of current political issues is not found in the Congress, but rather in the Spin Zone, such as Hannity & Colmes, or The McLaughlin Group, or The O'Reilly Factor. Or on blogs, or in Op-Ed pieces.
Joe Scarborough has consistently criticized the Cheney Admin on many issues.
Pat Buchanan has done so as well.
George Will recently criticized Dubya Bush for lacking any sense of true Conservatism.
Rob, if you look around, you will find the criticisms.
Last, I would observe from my own perspective that I've found more Repubs who are speaking out against the Cheney Admin than I have found Dems who have done so. Most of the Dem critics have simply blamed Repubs, and not talked on substance (hint -- Daily Kos and its various echo chambers).
liquified viscera said: "Rob, I would humbly submit that you're probably not looking in the right places."
ReplyDeleteHeh, no doubt! I'm the first to admit (as I noted earlier in this thread) I'm a slow study :)
You're right about many of the Democrats, too, and some of that may be media message control and some may be lack of genuine opposition/spine/initiative.
"Pat Buchanan has done so as well"
Hmm. I'll have to take your word on Pat. It's a personal bias, I admit, but I just can't read/listen to that guy. He's said a number of things about social policy over the years that I've really disagreed with pretty vehemently.
"Most of the Dem critics have simply blamed Repubs"
I don't know enough to comment on this one way or another, other than to say, as has been my experience, sometimes the sense of outrage overrides the sense of here's-how-
to-fix/overcome/do-something-better. I'm not very good at addressing issues of law like jao and Glenn and arne and many of the others here. Somedays, all I have is the outrage. It gets characterized by some as "lunatic fringe," I suppose, and I'm trying to find ways to channel it to actually contribute something positive to counter the morally-repugnant policies and rhetoric I see. In the meantime, I'm grateful there are better analytic minds here to elucidate many of the issues. There's is a skill or talent I don't think I have very much.
Thanks for the references.
Rob
to desert son/Rob --
ReplyDeletePat Buchanan is not someone whose views I admire or respect very much, as much of his politics seems fairly hate- or envy-fueled. If my assessment is correct, this isn't something I can respect. Either way, his presentation often is one that reveals a hothead.
Regardless, his "isolationist" tendency on foreign policy has been pretty useful regarding the Iraq fiasco and regarding all Israel-related doings. It has fueled a lot of his criticism of Bush/Cheney, and like him or not, Buchanan's criticism has made some good points.
I wouldn't be too quick to dismiss yourself because of a lack of legal expertise. My review of the legal discussions in here is that they're a bunch of bench racing (to use a gearhead's term) that serves to pass the time on issues that are more interesting than those with which the average attorney deals in daily work. I've been a lawyer for 15 years and what I see in the legal discussions is troll/provocation posts with responses by those intending to discuss seriously. That kind of discussion is useless, IMO. If you find it baffling, I would suggest that it's because the troll/provoker is trying to baffle, and is achieving his/her goal of bafflement.
Most legal issues are simpler in theory, but complex in substantive application. This is largely because our system of jurisprudence has become a bit too case-specific and too nichebound/loophole oriented. The troller/provoker typically seeks to exploit the loophole nature of analysis.
All I would suggest is that you try to read The Federalist Papers if you want an understanding of Constitutional Law. The arguments fleshed out there are much more relevant than some troller's provocation designed to distract and deflect.
anonymous:
ReplyDelete[euphronius]: "Non citizens inside the USA I'm not clear on."
[Arne]: See 50 USC § 1801 et seq. (here).
[Arne]: The relevant distinction for the law is "United States persons" (defined in 50 USC § 1801).
[Arne]: If the surveillance is done domestically, FISA applies, even if "non U.S. persons" are the target.
Not quite. Surveillance conducted in the U.S. of the communications of foreign governments, factions, and entities openly acknowledged to be directed and controlled by foreign governments does not require a warrant or FISA court order if no United States person is a party to the communications.
I suspect you're alluding to 50 USC § 1802 here. This exception for surveillance without a court order applies only to communications exclusively between "foreign power[s]" (it's more specific, actually; read it). If not covered under this exception, 50 USC § 1801(f)(2) applies if the surveillance itself is conducted domestically; under such circumstances a FISA court order is needed.
However, if the communications are of a group engaged in international terrorism or activities in preparation therefor, then surveillance within the U.S. always requires a FISA court order, regardless of whether United States persons are party to the communications or not.
I think I said that. And I said it again, citing 50 USC § 1801(f)(2).
The relevant distinction is between "foreign powers" as defined in 50 USC 1801(a)(1),(2),(3) versus 50 USC 1801(a)(4).
Yes, if you're referring to 50 U.S.C. § 1802. But this is generally thought to be things like tapping the Soviet's microwave links between Washington and New York. Which isn't really what we were discussing here, so I didn't want to muddy the waters with details of less relevance.
In the case of surveillance on international terrorists, the distinction of United States persons is of lesser importance.
That's not true. The law provides for specific procedures when "United States persons" are the target of the surveillance (see 50 USC § 1801(f)(1), for instance, but also see that "United States persons" is mentioned as well in 50 USC § 1802 as concerns minimization safeguards).
But my comment was directed at the phrase "non citizens". I pointed out correctly that the actual distinction (for much of the law) is whether the surveillance is of a "United States person" (as defined in 50 USC § 1801). Some "non citizens" (such as I) are nonetheless "United States persons".
But enough of this; if anyone is still unclear, just go read the law.
Cheers,
Some "non citizens" (such as I) are nonetheless "United States persons".
ReplyDeleteAnd some non-citizens are not United States persons.
If these persons were party to communications with a targeted foreign power or agent of a foreign power, surveillance of those communications could still be conducted within the United States without a warrant or FISA court order. If, on the other hand, those non-citizens who are also not United States persons were party to communications with international terrorists, then surveillance of those communications within the United States could not be lawfully carried out without a FISA court order.
For the question of whether warrantless surveillance for foreign intelligence purposes may be lawfully conducted within the United States, the question of whether the target of the surveillance is a foreign power/agent of a foreign power or instead is an international terrorist is more important than whether any party to the communication is a United States person. In the case of the lawfullness of surveillance of international terrorist communications within the United States, the question of United States personhood does not arise -- all surveillance of communications with anyone in the United States require FISA orders in those instances, not just those to which a United States person is a party.
Eric of Ottawa need look no further than election fraud for the answer to his question.
ReplyDeleteNowadays, few members of Congress hold their seats, as a result of an honest count. They know as well as Diebold Corporation they can be defeated next election, just as handily (and illegally) as they were "elected" to office last time.
The public by and large accepts the integrity of American elections, perhaps because the consequences of rigged ones are too terrible to contemplate. Of course, ignoring a problem doesn't usually make it go away.
Eric of Ottawa need look no further than election fraud for the answer to his question.
ReplyDeleteNowadays, few members of Congress hold their seats, as a result of an honest count. They know as well as Diebold Corporation they can be defeated next election, just as handily (and illegally) as they were "elected" to office last time.
The public by and large accepts the integrity of American elections, perhaps because the consequences of rigged ones are too terrible to contemplate. Of course, ignoring a problem doesn't usually make it go away.
O/T Important
ReplyDeleteNSA Lawsuit dismissed ("National Security" reasons)
http://www.businessweek.com/ap/financialnews/D8J37TP00.htm?sub=apn_tech_down&chan=tc
The Court has never held that Congress may enact statutes to regulate any subject matter area which they please.
ReplyDeleteBut the court did hold in the one post-FISA case, Truong, that the Congress may and should be involved in placing restrictions on Executive foreign intelligence surveillance authority:
...the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President. 629 F.2d at 915 n.4
anonymous:
ReplyDeleteAnd some non-citizens are not United States persons.
True. But...:
If these persons were party to communications with a targeted foreign power or agent of a foreign power, surveillance of those communications could still be conducted within the United States without a warrant or FISA court order....
If you're referring to 50 USC § 1802(a)(1)(A)(i), that is limited to:
"... the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title..."
Such surveillance doesn't require a FISA court order. But it is limited to those communications that are transmitted by "means of communications" used solely for communications amongst themselves (e.g., private microwave links, leased lines, or such running between embassies). That doesn't mean calls carried over common carriers. Here you are right in that "terrorists" are not included in the permissible targets.
But when one party is in the United States, regardless of status as a "U.S. person", and the intercept is done domestically, and the "embassies are fair game" exception above doesn't apply, then a FISA court order is needed, as per 50 USC § 1801(f)(2):
"the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States,..."
... If, on the other hand, those non-citizens who are also not United States persons were party to communications with international terrorists, then surveillance of those communications within the United States could not be lawfully carried out without a FISA court order.
I think you're misunderstanding 50 USC § 1802.
I think you also misunderstand 50 USC § 1801(f)(1). This permits the interception of calls from or to a "U.S. person" if the "target" of the surveillance is a permissible target. As such, no warrant is needed to snoop calls al Qaeda makes from abroad to anyone in the U.S., as long as the U.S. "associate" (to use the CALEA term) is not being singled out for surveillance themselves. This last situation is intentionally misrepresented by defenders of Commander Codpiece as being prohibited without a warrant. It is not. Note that clause (f)(1) does specify who is targeted, while (f)(2) does not, but (f)(2) specifies only interceptions that physically take place in the U.S.
For the question of whether warrantless surveillance for foreign intelligence purposes may be lawfully conducted within the United States, the question of whether the target of the surveillance is a foreign power/agent of a foreign power or instead is an international terrorist is more important than whether any party to the communication is a United States person....
No. See above.
... In the case of the lawfullness of surveillance of international terrorist communications within the United States, the question of United States personhood does not arise -- all surveillance of communications with anyone in the United States require FISA orders in those instances, not just those to which a United States person is a party.
No. The distinction is the place of interception, not whether all parties are in the U.S. (except for the "embassies are fair game" exception). See above. In such a case, if the conditions of 50 USC § 1801(f)(2) pertain, and the other requirements for a FISA court order can be met, then this will suffice for legality. If not, then a Title III warrant would have to be obtained. Any domestic surveillances done without a FISA court order or a Title III warrant would violate the FISA laws or Title III or both (outside the limited exception of snooping on embassies, etc.).
Cheers,
Such surveillance doesn't require a FISA court order. But it is limited to those communications that are transmitted by "means of communications" used solely for communications amongst themselves (e.g., private microwave links, leased lines, or such running between embassies). That doesn't mean calls carried over common carriers. Here you are right in that "terrorists" are not included in the permissible targets.
ReplyDeleteI'd be more inclined to accept your argument were it based on other than just your opinion of how 1802(a)(1)(A)(i) should be read. As it stands, 1802(a)(4) tends to argue against your exclusion of common carrier borne communications, implying that "exclusively between or among foreign powers" from 1802(a)(1)(A)(i) should simply be read as indicating communications to which only foreign powers and their agents are party, regardless of whether that communication is carried out over a common carrier network or over a dedicated link.
I think you also misunderstand 50 USC § 1801(f)(1). This permits the interception of calls from or to a "U.S. person" if the "target" of the surveillance is a permissible target. As such, no warrant is needed to snoop calls al Qaeda makes from abroad to anyone in the U.S., as long as the U.S. "associate" (to use the CALEA term) is not being singled out for surveillance themselves.
Absolutely not. I think it is you who is misunderstanding 1801. All of 1801 is just definitions, and does not permit or disallow anything. For that you will have to look to the sections of FISA subsequent to 1801. Now, you are correct in your further comments that place of interception is a noteworthy distinctions. That is why I referred to surveillance within the United States. For surveillance conducted within the U.S., all wire communications that do not fall within the 1802 warrantless exceptions and to which a person in the United States (n.b. not necessarily a United States person) is a party may not be conducted without warrant or FISA court order if none of the persons in the U.S. have consented to the surveillance.
For radio communications surveillance conducted outside the U.S. (NSA listening post on foreign soil, etc.), if a United States person is not the intentional target of the surveillance and at least one intended sender or receiver is not in the U.S., then FISA's requirements simply don't apply -- it's not "electronic surveillance" as far as FISA is concerned. That is also mostly true for wire communications intercepted outside the U.S. -- with an interesting exception. The "both the sender and all intended recipients are located within the United States" language of 1801(f)(3) only applies to radio communications. If wire communications between senders and receivers all located within the U.S. were to be routed outside the U.S. and intercepted by means of surveillance conducted outside the U.S., then FISA would not apply if a United States person were not the intended target of the surveillance. In other words, the NSA could target and listen-in on all the calls made by a non-United States person located in the U.S. if those calls were looped through a route that went outside of the U.S. and the intercept was conducted outside the U.S. In the case of wire communications so routed, it wouldn't matter that all intended senders and recipients were within the U.S. and none had consented to the surveillance.
In "...may not be conducted without warrant or FISA court order if none of the persons in the U.S. have consented to the surveillance," I am also assuming that none of the parties outside the U.S. has consented.
ReplyDeleteanonymous:
ReplyDelete[Arne]: Such surveillance doesn't require a FISA court order. But it is limited to those communications that are transmitted by "means of communications" used solely for communications amongst themselves (e.g., private microwave links, leased lines, or such running between embassies). That doesn't mean calls carried over common carriers. Here you are right in that "terrorists" are not included in the permissible targets.
I'd be more inclined to accept your argument were it based on other than just your opinion of how 1802(a)(1)(A)(i) should be read. As it stands, 1802(a)(4) tends to argue against your exclusion of common carrier borne communications, implying that "exclusively between or among foreign powers" from 1802(a)(1)(A)(i) should simply be read as indicating communications to which only foreign powers and their agents are party, regardless of whether that communication is carried out over a common carrier network or over a dedicated link.
More like "dedicated" (i.e., "exclusive", as the statute says). But as I mentioned, "dedicated" may be leased lines from a common carrier, but probably doesnt't include the PSTN. Then there's the 50 USC § (a)(1)(B) and (C) provisions for minimisation. The point is that the snoop has to be intra-foreign-power communications, as opposed to a snoop on all calls made by a single foreign power as the "target". But I think you and I essentially agree. I think the restriction to actual "foreign powers" and not "terorists" may be a acknowledgement that, contrary to one stated opinion, it's been long-standing practise that gentelmen do read other gentlemen's mail.
[Arne]: I think you also misunderstand 50 USC § 1801(f)(1). This permits the interception of calls from or to a "U.S. person" if the "target" of the surveillance is a permissible target. As such, no warrant is needed to snoop calls al Qaeda makes from abroad to anyone in the U.S., as long as the U.S. "associate" (to use the CALEA term) is not being singled out for surveillance themselves.
Absolutely not. I think it is you who is misunderstanding 1801. All of 1801 is just definitions, and does not permit or disallow anything. For that you will have to look to the sections of FISA subsequent to 1801.
Quite true. But they make reference to 50 USC § 1801 in definign what is permissible, what is illegal, and under what circumstances (see, e.g., 50 USC § 1804-06a and 1809.
... Now, you are correct in your further comments that place of interception is a noteworthy distinctions. That is why I referred to surveillance within the United States. For surveillance conducted within the U.S., all wire communications that do not fall within the 1802 warrantless exceptions and to which a person in the United States (n.b. not necessarily a United States person) is a party may not be conducted without warrant or FISA court order if none of the persons in the U.S. have consented to the surveillance.
We agree then. Good.
For radio communications surveillance conducted outside the U.S. (NSA listening post on foreign soil, etc.), if a United States person is not the intentional target of the surveillance and at least one intended sender or receiver is not in the U.S., then FISA's requirements simply don't apply -- it's not "electronic surveillance" as far as FISA is concerned....
True. The "radio" provisions loosely map to the "wire" provision, recognising that radio waves do travel in less constrained and controlled fasion. Thus the attempt to cover purely "domestic" traffic, even if the radio signal leaks a bit. Subparagraph (f)(3) correcsponds roughly to (f)(2). But Subparagraph (f)(1) takes care of radio communications as well as wire communications of "U.S persons" as a traget regardless of place of intercept.
... That is also mostly true for wire communications intercepted outside the U.S. -- with an interesting exception. The "both the sender and all intended recipients are located within the United States" language of 1801(f)(3) only applies to radio communications. If wire communications between senders and receivers all located within the U.S. were to be routed outside the U.S. and intercepted by means of surveillance conducted outside the U.S., then FISA would not apply if a United States person were not the intended target of the surveillance.
Yeah the mapping of wire and radio is loose. Not sure it's interesting; maybe just people doint the best they can with two different media.
... In other words, the NSA could target and listen-in on all the calls made by a non-United States person located in the U.S. if those calls were looped through a route that went outside of the U.S. and the intercept was conducted outside the U.S. In the case of wire communications so routed, it wouldn't matter that all intended senders and recipients were within the U.S. and none had consented to the surveillance.
True. So don't do it. ;-)
Cheers,
True. So don't do it. ;-)
ReplyDeleteUmmmm... I don't have any control over how most of my wire communications are routed. The government, on the other hand.... Consider a government request to all of the telecom companies that they route through Mexico all telephone calls from non-United States persons in the U.S. The NSA could then setup shop at that Mexican switch and listen to all phone calls by those persons without any need for any warrant of court order.
anonymous:
ReplyDelete[Arne] True. So don't do it. ;-)
Ummmm... I don't have any control over how most of my wire communications are routed....
I don't either (for the most part). But I'm in the business, so I know a bit about how it happens. If I were to be worried about gummint snooping, I'd find carriers and/or protocols that would make it harder to snoop. At present, for instance, VoIP is pretty hard to snoop. To do so, the gummint must find all potential gateways through which the traffic may be routed, and snoop them all. For instance, for packet cable IP phones, all CMTS stations must be provisioned to tee off the voice (RTP) and provisioned. The CALEA law does require that the ISPs provide such facility, but it ain't cheap and easy. For UMTS and UMA, the routers will need similar capability. If you don't care a whole lot about calling everyone you can use your own SIP software for PtP connections, and the gummint is going to have to find some bottleneck or gateway to snoop at and identify your particular IPs. IP really provides some headaches simply because of the distributed nature of the system (unlike the typical dual redundancy of the trunks and switches in traditional telephony).
... The government, on the other hand....
... can only route stuff overseas with heavy involvement of the carriers and/or ISPs. Much better to just snoop domestically and ignore FISA: Just tell the telcos to co-operate and don't tell anyone. That's what they did for years for telegraphs: They strong-armed the big three cable companies to just take the daily tapes and voluntarily turn them over to NSA. This, when discovered, in part led to the FISA laws....
Cheers,
wg said:
ReplyDeleteb) he [Specter] continues to claim that FISC of Review is the only court in the land that can be trusted with these cases because of its expertise with spying and its ability to protect government secrets.
Unfortunately there is nothing to support him here.
Indeed, where specific and sensitive information (you know, like, not does the CIA have NOCs but rather is person A a NOC) is involved, there might be an excuse for such secret procedures -- you don't really want to tell person X you're snooping on them because it tends to defeat the purpose. But I'd note that FISA does include provisions for notification of surveillance after the fact (see, e.g., 50 USC § 1806). But just telling people you have a program ("Suprahhhhz! Suprahhhhz!") doesn't tell specific people they're being watched, nor does it matter much to them whether or not a warrant or court order is obtained first. Sp discussion of what standards and procedures we should have for snooping on people is hardly sensitive information, and there's no reason a regular Title III court couldn't handle the case in open court.
Cheers,
Hi folks, I put together a short video I wanted to share with you -- it's a lesson on despotism for Senator Arlen Specter, made by slicing together parts of an Encyclopedia Brittanica educational film from 1946.
ReplyDeleteMy goal was to to make something shorter than the original, focus on a rubber stamp legislature's contribution to despotism and how dangerous that contribution is.
It's hosted on YouTube, and playable on my blog.
Please let me know your thoughts... I plan on making more like this, but want feedback from the community.
Sorry, the link to my video was broken.
ReplyDeleteHere it is: http://thegris.blogspot.com/2006/07/despotism-lesson-for-specter-from-1946.html
If the President did indeed eavesdrop on Americans, isn't he guilty of a crime that calls for jail time? I know alot has changed since the Bush takeover, but this is elementary stuff here. We are essentially saying that when the President breaks the law, it's the laws fault because it wasn't extreme enough. Specter has ZERO credibility in my eyes. All bark and no bite.
ReplyDelete