Tell 'em Uncle Alberto Says It's Cool

March 8, 2006 8:51 AM

'The committee is, to put it bluntly, basically under the control of the White House," said Jay Rockefeller, vice-president of the Senate Intelligence Committee, after the committee quashed a broad inquiry into the legality of the NSA spying on Americans -- despite an increasing number of legal scholars coming forward and declaring that the program is "blatantly illegal," in the words of Yale Law School dean Harold Koh. Meanwhile, the GOP proposes giving spying on Americans the "force of law" while subjecting it to "rigorous oversight."
posted by digaman (175 comments total)

I just heard a rebel yell coming from way down South.
posted by The Jesse Helms at 8:53 AM on March 8, 2006

What will it take to make enough Americans care and stand up for themselves that together they can put a stop to this bull?
posted by raedyn at 8:55 AM on March 8, 2006

'I just heard a rebel yell coming from way down South."

Mind giving this Yankee an idea of what that means?
posted by BeerGrin at 8:56 AM on March 8, 2006

Liberal media, this is your cue. Earn your goddamn keep and report on this, otherwise no one will know or care.
posted by plexiwatt at 8:58 AM on March 8, 2006

One does wonder what happened to all the conservatives who used to mind stuff like the federal government secretly probing into their private lives. I didn't realize that the whole "Don't tread on me" ideology was subject to total revision by a couple of boxcutters smuggled onto a plane.
posted by digaman at 8:58 AM on March 8, 2006

Clearly, during peace, what the President and NSA are doing are blatantly illegal. My impression is that George "I'm a war president" Bush and his supporters use the "we're at war" argument to justify it.

I don't think the question is really if the program is "blatantly illegal," in the words of Yale Law School dean Harold Koh but rather whether or not the nation really at war, or otherwise in a state of emergency, that gives the president necessary temporary lattitude.
posted by three blind mice at 8:59 AM on March 8, 2006

Couldn't we just go ahead and appoint Bush our Dear Leader for life, and skip all this tiresome proto-fascist tiptoeing?

I mean, why prolong the inevitable?
posted by Floach at 9:00 AM on March 8, 2006

Raise your hand if you think the Bill of Rights will survive if Republicans keep the House in the November election.

...anyone?
posted by BeerGrin at 9:03 AM on March 8, 2006

With Gingrich and Rumsfeld now referring to the conflict as "the 70-year war," that latitude is not so temporary.
posted by digaman at 9:04 AM on March 8, 2006

Bush pretty much started a war so that he could pretty much use that "but, we're at war" excuse for anything didn't he? I mean if you can't start a war just to use that as an excuse for everything you do subsequent to that, what's the fucking point of running for President in the first place?
posted by psmealey at 9:06 AM on March 8, 2006

secretly probing into their private lives

but the illegal probing will only affect the Negroes (the American and the Middle Eastern kinds), so it's all OK you silly terrarist-appeaser!
posted by matteo at 9:07 AM on March 8, 2006

If a case built on this evidence gathered prior to a warrants survives a Supreme Court challenge then we'll have the fascist trifecta and it's time to either buy a gun or move.

If these cases never make the court, because the President begins holding citizens as "enemy combatants" thus bypassing the Judiciary, then the time to buy a gun has already passed.

I'll be picking mine up this weekend and signing up for gun safety training.
posted by BeerGrin at 9:08 AM on March 8, 2006

With Gingrich and Rumsfeld now referring to the conflict as "the 70-year war," that latitude is not so temporary.

And that's the point digaman. War powers imply temporary powers. 70 years is not temporary and war powers cannot be used as an excuse for ignoring the plain text of the bill or rights as a permanent status quo.
posted by three blind mice at 9:10 AM on March 8, 2006

survives a Supreme Court challenge

LOL
posted by digaman at 9:11 AM on March 8, 2006

I feel like I say the same thing in all these threads, so why not say it one more time: nothing is going to come of this. If every other scandal (and there have been a LOT) have resulted in a whole lot of nothing being done, what is so different here?
posted by chunking express at 9:11 AM on March 8, 2006

If they plan on fighting a war, and use the language of war, I would appreciate it if they actually declared war. What's the holdup?
posted by Astro Zombie at 9:12 AM on March 8, 2006

Chunking, if you're bored, go play in other topics. There are plenty of good ones this morning.
posted by digaman at 9:14 AM on March 8, 2006

Yeah digaman, I know the idea that the Supreme Court as it exists now would block this is laughable.

That's why I said "If it survives" instead of, "It will not survive any Supreme Court challenge."

It puts chills down my spine to consider that it would not be struck down.
posted by BeerGrin at 9:15 AM on March 8, 2006

Marty Lederman - Is this the end of Fisa? argues that Specter's new version of FISA would not only legalize the administration's actions, but would basically result in a worse law. Here's a short blog post that summarizes Lederman's point.
posted by kensanway at 9:20 AM on March 8, 2006

Digiman, i'm not bored, i'm asking, what will come of this? It's a topic I find interesting. Many Americans honestly don't seem to care in the least that this quasi-fascist stuff is going on around them.
posted by chunking express at 9:21 AM on March 8, 2006

Dammit, aren't you frogs boiled yet?
posted by Hogshead at 9:27 AM on March 8, 2006

The answer to all questions is 2006.
posted by BillyElmore at 9:32 AM on March 8, 2006

Chunking, if it's a topic you find interesting, have faith in your own feelings, and know that there are a lot of Americans who share your interest. Rushing around in NSA-related threads posting "the same thing," as you put it, only thickens the very atmosphere of "Who cares?" apathy that you complain about. Meanwhile, collecting evidence and links in FPPs like this one alerts the many journalists who read MeFi (I am one) that Americans do care about the quasi-fascism emanating from this White House.

Back to the topic at hand: The origin of the Senate Select Committee on Intelligence was post-Watergate alarm over rampant spying on Americans to achieve vaguely defined intelligence objectives. I suggest the committee go back to its roots.
posted by digaman at 9:34 AM on March 8, 2006

Clearly, during peace, what the President and NSA are doing are blatantly illegal. My impression is that George "I'm a war president" Bush and his supporters use the "we're at war" argument to justify it.
posted by three blind mice at 10:59 AM CST on March 8

You are absolutely correct that if we were in a peaceful time like the mid-90's, this wouldn't be occurring. But the people who support this program do support it as a necessary tool of intelligence to protect against active threats against the United States. Whether we believe we are at a state of war is a matter of debate, but there is no doubt that many radical bin Ladenites and terrorists believe that they are at war with the US. And the argument is put forth that this policy is a necessary action to provide security and defend the country.

The legality in the context of an impending threat to national security is a gray area in the law that may be outside the Court's capacity to even review. Those that say it is clearly legal are misrepresenting the issues in an effort to justify their policy preference; those that argue it is clearly illegal are doing the same.

Raise your hand if you think the Bill of Rights will survive if Republicans keep the House in the November election.

...anyone?
posted by BeerGrin at 11:03 AM CST on March 8

Raise your hand if you're so far gone off the cliff of delusion that you honestly think the Bill of Rights won't survive if Republicans keep the House in the November election.

Hyperbolic rhetoric like you just offered indicates a complete lack of perspective on your part.

Couldn't we just go ahead and appoint Bush our Dear Leader for life, and skip all this tiresome proto-fascist tiptoeing?

I mean, why prolong the inevitable?
posted by Floach at 11:00 AM CST on March 8

Inevitable? What world do you live in? Down here in reality, I think I'd rather just go forward with those elections that will be occurring in two years.
posted by dios at 9:38 AM on March 8, 2006

Hi dios, nice to see you.
posted by BeerGrin at 9:39 AM on March 8, 2006

Dear Deep Throat,

My government is very sick. Please come soon before something really bad happens.

Sincerely,

"fearing exile"
posted by mrmojoflying at 9:39 AM on March 8, 2006

Post-mortem on the Intelligence Committee vote
posted by homunculus at 9:39 AM on March 8, 2006

Defense Lawyers Continue to Challenge NSA Warrantless Surveillance
posted by homunculus at 9:40 AM on March 8, 2006

I don't think the question is really if the program is "blatantly illegal," in the words of Yale Law School dean Harold Koh but rather whether or not the nation really at war, or otherwise in a state of emergency, that gives the president necessary temporary lattitude.

Yes!
posted by kensanway at 9:42 AM on March 8, 2006

Meanwhile, Congress Passes Patriot Act Renewal
posted by homunculus at 9:42 AM on March 8, 2006

The answer to all questions is 2006.

No point in beating around the bush: I expect widespread vote fraud this election.

As much as the Democrats would like to win... the Republicans can NOT afford to lose. Their crooked dealing over the last 5 years will do them in if they give up a majority to the Dems, who would gleefully investigate and prosecute every single thing that they themselves cannot be implicated in.
posted by sonofsamiam at 9:42 AM on March 8, 2006

a complete lack of perspective on your part

Dios, with so many legal scholars declaring the NSA's domestic spying program to be a direct attack on the Fourth Amendment, I will take your statements with a grain of salt, understanding that you are in the radical minority who believes that the impact of this program is of little relevance to constitutional law. Yale Law School Dean Koh is not in that minority:

"....this unilateral vision offends the vision of shared national security power that's central to what Justice Jackson called the equilibrium established by our constitutional system. Read literally, the president's reading of the Constitution would turn this body into a pointless rubber stamp whose limited role in the war on terror would be enacting laws that the president could ignore at will and issuing blank checks that the president can redefine at will."
posted by digaman at 9:45 AM on March 8, 2006

It is always good to hedge your bet in an election to predict that the other side is going to cheat. That way, if you win, you can exclaim how good won out and the people have spoken! And if you lose, then you can just cocoon by arguing that you accurately predicted that such illegality happened and that there is no way that people disagreed with you; it must have been cheating.

Happened in 2000, 2002, 2004, and here we go, going into 2006, people are already predicting illegality to hedge there bets. Anything other than admitting that there are a lot of people in this world who think you are wrong.
posted by dios at 9:45 AM on March 8, 2006

Dios...why circumvent FISA?
posted by edverb at 9:48 AM on March 8, 2006

"The legality in the context of an impending threat to national security is a gray area in the law that may be outside the Court's capacity to even review. "
posted by dios at 12:38 PM EST on March 8 [!]

A perpetual impending threat, like unidentified terrorists, is not proper justification for invoking wartime powers. Much like the war on drugs, the war on terror is a rhetorical construct. Who is it that will surrender when the war on terror is over?

Undeclared wars and police actions are not untrodden legal territory. The Nixon administration saw to that by its actions.

Pretending that Congress and the courts have not covered this ground requires one to ignore the existence of FISA, and to accept the theory of the unified executive as put forward by some Bush administration lawyers.

But yes, I engaged in hyperbole above. A hyperbole that any reader should have been able to see as hyperbole, but that I should have known was trollbait.
posted by BeerGrin at 9:48 AM on March 8, 2006

It is always good to hedge your bet in an election to predict that the other side is going to cheat.

"the other side"

...

You understand so little of what motivates some people.

My side was the Republicans, until they left me behind for their stupid, amoral, and ruinous domestic and foreign policies, not to mention breaking the law to push them through.

Anyone who wants can read all they like about vote fraud in past elections and make up their own minds. After reading and reading and reading, it seems clear to me what's going on in this country.
posted by sonofsamiam at 9:50 AM on March 8, 2006

Please direct me to credible allegations of vote fraud on the part of any opposition parties in the 2000, 2002, or 2004 elections. Then, please direct me to credible allegations of vote fraud on the part of the GOP.

It's not as if there's no reason to believe that this stuff will likely happen to some degree.
posted by rxrfrx at 9:51 AM on March 8, 2006

a complete lack of perspective on your part

Dios, with so many legal scholars declaring the NSA's domestic spying program to be a direct attack on the Fourth Amendment, I will take your statements with a grain of salt,
posted by digaman at 11:45 AM CST on March 8

digaman: read my post again. The "complete lack of perspective argument was made in reference to the imbecile who was trying to suggest that the Bill of Rights won't survive if a mid-term election doesn't go one way. That is absurd rhetoric, one that I hope you disavow.

As for Koh's comments. I have read them. I am familiar with them. As I am familiar with arguments on both sides. It is a legal gray area. I could cite you to Posner's analysis or any other number of legal scholars who are equal to Koh in respect. And in the end, the picture emerges that this a gray area. There is no guiding precedent (and it might so that there couldn't be because it is not a legally reviewable issue). I am not advocating either side in this. As I said, those that say it is clear one way or the other are both over-stating their case and just confirming their policy preferences in doing so. So please don't tell me that I am radical here. Those that are saying it is clear are the radical ones. This is a legally gray area when you are in a situation of an active threat to national security. It is less of a gray area when that is not the case.
posted by dios at 9:51 AM on March 8, 2006

It is always good to hedge your bet in an election to predict that the other side is going to cheat.

It certainly doesn't hurt that the vote-counting machines are easily defeatable and that auditing them is impossible, as well as the fact that the CEO of that company is a good friend of the Republican party. If he were best buddies with the Democrats, you'd be singing a different tune.

Even you should be concerned with voting integrity, dios.
posted by Optimus Chyme at 9:52 AM on March 8, 2006

The "complete lack of perspective argument was made in reference to the imbecile who was trying to suggest that the Bill of Rights won't survive if a mid-term election doesn't go one way.
posted by dios at 12:51 PM EST on March 8 [!]

Easy tiger, take a deep breath and dear you own profile about respectful dialogue.

If you would like to engage in a god old fashioned Lincoln -Douglas with me on this issue I'd be happy to step up. But lets back down from the hasty assumptions and name calling.
posted by BeerGrin at 9:55 AM on March 8, 2006

when you are in a situation of an active threat to national security.

I'm not convinced of any "active threat", dios... which is why this is pretty clear to my mind.

The people who honestly believe that the dirty, Arab "boogeymen" are out to kill us all are the ones who think this shit is fine and dandy.
posted by BobFrapples at 9:55 AM on March 8, 2006

"FISA is uhmm... too slow.... in this uh.... day and age.... of... ahhh... terrorist groups like uhm... the Quakers."
posted by digaman at 9:55 AM on March 8, 2006

This is a legally gray area when you are in a situation of an active threat to national security. It is less of a gray area when that is not the case.
posted by dios at 12:51 PM EST on March 8 [!]

In concept this is true, but the execution is very questionable here. The President is himself identifying the threat, and identifying it in non-specific terms. Can you define "Victory against terrorism?" If the Middle East by some miracle becomes a quiet safe corner of the world does the war on terror end? If Bin Laden disbands his network and stops all activity is that victory over terror?

If non-islamists detonate a bomb, Basque separatists in Spain for example, does the war on terror continue?
posted by BeerGrin at 10:01 AM on March 8, 2006

Indeed. When in the history of the United States have we not been "in a situation of an active threat to national security"?
posted by digaman at 10:03 AM on March 8, 2006

Dios...why circumvent FISA?
posted by edverb at 11:48 AM CST on March 8

This argument has been done to death, both here and others elsewhere. There is nothing to be added at this point, so do you really want to have another go at it here? It will just end up with both sides make the same arguments that have been in the public domain for months. On the issue of FISA, you can present one side that makes the argument that FISA must have been complied with, and the other side, you can argue (like say, Posner did) that FISA is obsolete and, in reality, may not be a valid regulation on the executive branch in regulating national security from foreign threats and on and on and on. The argument has been done. Do you really think we are going to resolve it here? Should I spend my time making a legal argument for it when it clear that no amount of legal argument is going to change your perspective on it?

A perpetual impending threat, like unidentified terrorists, is not proper justification for invoking wartime powers.
osted by BeerGrin at 11:48 AM CST on March 8

There are specific threats being made by a known group of terrorists who have attacked us before (the bin Laden videotapes?). We can only pretend that there isn't a threat if we choose to disbelieve that bin Laden and others like him mean what they say. We have to ignore the incidences of terror world wide. But say we take your suggestion and don't act like there is an active threat, and another attack occurs. Will you be complaining then that the government didn't do enough?

My side was the Republicans,
posted by sonofsamiam at 11:50 AM CST on March 8

Do you think anyone still believes that bullshit line you have been peddling here? You are one of the shrillest anti-Republican posters on this website. You just play that pathetic little game that people on the internet play where they try to bolster their position by saying "I used to be one of them but they left me." Your positions here make clear that you are as about conservative, or hell, about as moderate as Michael Moore.

But if you continue to want to play that game, how about we do this: why don't you state all of your positions on the key "wedge" issues to see where it is that you were Republican?

Then, please direct me to credible allegations of vote fraud on the part of the GOP.

I can't. There aren't any. "Credibility" doesn't mean "this source confirms my bias.

Those that believe that there is no way Bush and the Republicans really could have won elections the last 3 cycles are detached from reality.
posted by dios at 10:05 AM on March 8, 2006

dios, I won't try to speak for anyone else who has commented, but let me ask you, and you have to answer this honestly:

Had a President Gore or Kerry (in parallel universe of course) chosen to ignore the FISA law and order wiretaps without warrants by the NSA on an unknown number of calls by people in the US to people overseas (and vice versa), would you be giving either of them the benefit of the doubt, too?

I'd be demanding that in such a scenario that both be impeached. That is why I now demand that President Bush be impeached.

He broke the law. His legal team had 72 hours to go back retroactively to justify and request warrants from the FISA court.

They didn't even bother.

President Clinton was impeached for lying under oath. He broke a law, too.

Note a pattern there? Break the law, and you get impeached. It was good enough for Nixon and Clinton, so it should be good enough for Bush, too.
posted by Nacho Libre at 10:07 AM on March 8, 2006

The President is himself identifying the threat, and identifying it in non-specific terms.

If non-islamists detonate a bomb, Basque separatists in Spain for example, does the war on terror continue?
posted by BeerGrin at 12:01 PM CST on March 8

No, there are active threats by bin Laden and his ilk. They have said them. They have released tapes saying they will do them. They have done them in the past. They are identifying us as a target and telling us that they will attack us

Can you explain to me the metric you use to decide that they don't mean it?
posted by dios at 10:09 AM on March 8, 2006

Even you should be concerned with voting integrity, dios. - Optimus Chyme

Everyone should be concerned with voting integrity AND the appearance of same. Say, for the sake of arguement, the voting machine's code was written perfectly (IE: no errors) and no one messed with it. Wouldn't the best thing for everyone with an interest in democracy be for it to be transparent, so everyone can see for themselves that it's all above aboard? What's the rational arguement for keeping it all secret and open to suspicion? It's entirely possible that there were no fraudulent machines, but why should voters just take that on faith? That's not democratic. Show us why we should trust you.
posted by raedyn at 10:12 AM on March 8, 2006

Had a President Gore or Kerry (in parallel universe of course) chosen to ignore the FISA law and order wiretaps without warrants by the NSA on an unknown number of calls by people in the US to people overseas (and vice versa), would you be giving either of them the benefit of the doubt, too?

President Clinton was impeached for lying under oath. He broke a law, too.

Note a pattern there? Break the law, and you get impeached. It was good enough for Nixon and Clinton, so it should be good enough for Bush, too.
posted by Nacho Libre at 12:07 PM CST on March 8 [


No, I'd be a saying the same thing because I am rigidly legalistic. And the law in this area is clearly a gray area. Look, trying to suggest that I am merely a Bush apologist is not true. If I was, I would argue that it is clearly legal. I don't think it is. I argue based on the law, and the law is unclear. Would it effect your analysis that I argued against the impeachment of Clinton on legal grounds? Impeachment was wrong then. It was a constitutional travesty. It is wrong now, too. And it is certainly wrong here since the law is a gray area. It is impossible to say with certainty that "Bush broke the law." There is a multitude of multifarious issues tied up in that conclusion.
posted by dios at 10:14 AM on March 8, 2006

...why circumvent FISA?
posted by edverb at 9:48 AM PST on March 8

Bush's Enemies List:

" The answer is that the White House didn't go through the legal process on these specific cases and, instead, committed a grossly illegal violation of the U.S. Constitution and a Congressional law specifically designed to provent such executive branch abuses for one reason -- and that reason likely has to do with who was under surveillance, who was being wiretapped and who was being illegally searched.

In short, if the American public were to see the list of hundreds -- and perhaps thousands of people, according to The New York Times -- the Bush Administration violated the law to spy on, we might see names akin to Nixon's "enemies list." Only in this case, it would be Bush's "enemies list."

Why, we might see names like Joe and Valerie Wilson, or Richard Clarke, or Cindy Sheehan, among others. The White House wouldn't want even a secret court to know that it was spying on political enemies. This was exactly why the FISA law was passed. To prevent just such illegal political spying by the White House. "
posted by banshee at 10:14 AM on March 8, 2006

Oh dios, come on, just as there is plenty of FISA talk in the public domain, there's plenty of evidence of vote fraud, Diebold e-voting security holes, and GOP hanky-panky in the last three elections in the public domain too -- to say nothing of the fact that Gore won the popular vote in 2000. The question is not whether all that fraud occurred, but whether it was decisive. An interesting question, but off-topic.
posted by digaman at 10:15 AM on March 8, 2006

Dios is making it up agian, as usual. Dios, cite one legal authority who isn't on the payroll of George Bush, who defends the warrantless wiretapping of at least 5000 Americans' phone calls and internet traffic, in specific violation of a law passed by Congress contemplating this exact issue and designed to make this specific action illegal. There isn't one.

You mention Judge Posner (who, for readers, is a well-known conservative scholar and judge). Let's see what Posner says, in December 2005:

"The Foreign Intelligence Surveillance Act makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities. That is too restrictive. Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information. Collecting such information is of a piece with data-mining projects such as Able Danger."

That is, Posner accepts that FISA applies and that the Administration's actions contravene it. He says the law should be changed to legalize what they're doing. The law wouldn't have to be changed if what they were doing was legal, now would it?

So, Dios, give us a reputable source, not on Bush's payroll, who says that warrantless wiretapping in specific contravention of a law passed to prevent warrantless wiretapping is legal. There isn't the slightest bit of grey area - Congress considered THIS EXACT ISSUE, and legislated against it. No court has ever held that the President being the C-in-C of the Armed Forces gives him carte blanche to break laws at a whim. And it is in fact entirely puerile to argue that the entire worldwide population of terrorists presents any threat to U.S. national security at all. Not one square foot of U.S. land will ever be taken over by terrorist invaders.
posted by jellicle at 10:15 AM on March 8, 2006

Speaking about the war on drugs check it, peoples

The reauthorized Patriot Act includes new tools to combat the manufacture and distribution of methamphetamine. It will require retailers to place cold medicines with pseudoephedrine -- a key ingredient of the illegal drug -- behind counters, and will set limits on each person's monthly and daily purchases. Buyers will have to identify themselves and sign for their purchases.

at least we can be sure the terrorists cant get hopped up on meth before their terror attacks
posted by tranceformer at 10:16 AM on March 8, 2006

But say we take your suggestion and don't act like there is an active threat, and another attack occurs. Will you be complaining then that the government didn't do enough?
posted by dios at 1:05 PM EST on March 8 [!]

Nice, a forced choice between permanent extension of Presidential powers and a straw man position that we do nothing. Find where I advocated that we do nothing and then show me where it is written that President Bush has the only possible effective solution.

Bush's m/o seems to be "I'm the only one who can do anything about this so don't even ask me what I am doing."

Even if Posner is correct that the FISA is outdated, I hardly think you will find Posner advocating that the Executive branch ignore laws passed by Congress.

At the end of the day, your outright rejection of FISA, or any other Congressional oversight is a debate killer. apparently you agree that the current situation calls for unchecked Executive power over an undefined period of time.
posted by BeerGrin at 10:17 AM on March 8, 2006

Up yours, dios. I wouldn't have even brought up my own political leanings if you hadn't implied I was rooting for "the other side" first. I shouldn't have had to say anything at all, only your presumption prodded me to.

My comment history stands on its own.

Anyone interested can help themselves to it and decide for themselves whether I'm a true Scotsman or not.
posted by sonofsamiam at 10:17 AM on March 8, 2006

Can you explain to me the metric you use to decide that they don't mean it?
posted by dios at 1:09 PM EST on March 8 [!]

No need since I never took that position.

Can you explain to anyone how a war on terror ends?
posted by BeerGrin at 10:18 AM on March 8, 2006

So, Dios, give us a reputable source, not on Bush's payroll, who says that warrantless wiretapping in specific contravention of a law passed to prevent warrantless wiretapping is legal. T
posted by jellicle at 12:15 PM CST on March 8

Well, apparently Posner is on Bush's payroll. I'm sure he will be excited to hear that. But let me ask you this: is there anyone who I can cite to answer your question that you won't just dismissively label "a well-known conservative" and therefore automatically discount as being a hack or, more absurdly, "on Bush's payroll."

I'm not inclined to try to make an effort to satisfy those that say such things.
posted by dios at 10:19 AM on March 8, 2006

BeerGrin - how does buying a gun help in this context? I suppose getting shot dead when they come for you in the night might just be preferable to spending the rest of your days in the gulag¹, but still, buying a gun seems pretty irrelevant to the matter at hand.

1. I'm going with Stalinist USSR analogies when it comes to developments like this in the US from now on. Republicans accepting shit like this calls to mind party members praising Collectivisation policies while their children starved to death before their eyes.
posted by jack_mo at 10:19 AM on March 8, 2006

Glenn Greenwald's NSA arguments summary
posted by sonofsamiam at 10:21 AM on March 8, 2006

This is a legally gray area when you are in a situation of an active threat to national security. It is less of a gray area when that is not the case.

You must be able to precisely define what an "active threat to national security" is before you can use this argument. Dios, i have yet to see any such definition beyond the squishy "I know it when I see it" argument. If you and those of your camp can't (or won't) sufficiently define what constitutes a "threat to national security", then you can hardly expect us on the other side of this issue to take your arguments for extra-legal justification seriously.
Because I said so is not an argument.
posted by Chrischris at 10:23 AM on March 8, 2006

A legal grey area is a tyrant's best friend.

Example: Somewhere between "prisoner of war" under Geneva and "defendant" under the US Constitution is another grey area invented by the inventive inventors of this godawful mess...called "enemy combatant". You could be one...all it takes is one man pointing a finger at you, based on secret evidence, to have you kidnapped, throw you in a secret prison, and torture you to death. And no one -- not an attorney, not your family, not your heirs -- ever need know that it occurred.

Under this "legal grey area" and others like it, the only thing separating you from your life as it is, and that terrible fate of being "disappeared" is the benevolence of those who wield this power.

That ain't hyperbole. It has happened, and continues to happen. There's nothing "grey" about it. This is the awful power they have claimed for themselves, and have exercised, as Congress abdicates it's responsibility.

On one side is the rule of law, habeus corpus, a person's "inalienable rights" to due process of law and trial by jury, with the evidence on the table and the ability to face one's accusers, the right to a rigorous defense. These rights are not a weakness to be discarded in times of crisis, it is the source of our strength, the thing that has made America for 200 years.

On the other side is tyranny, where a citizen can be arbitrarily deprived of their rights and their life, at the pleasure of a single man, accountable to no one.

We don't face one scenario at the exclusion of the other...we face both now.

If the founding fathers intended a different set of rights during wartime, they'd have written two separate Constitutions -- one for war and one for peace. The fact that they didn't, and that the oath of every government official is not to "defend the homeland", or to "defend the people" - but to "defend the Constitution", says it all.

Those who would argue that it is the President's primary job to "keep us safe" are guilty of fundamental misunderstanding of the role of government, and their place as a citizen in it. The President's primary job is not to "keep us safe", it is to "uphold and defend the Constitutiuon of the United States".

There's nothing "grey" about it. In these times of arbitrary exercises of unchecked power against the people's rights, we face nothing less than the fundamental failure of those self-evident principles of liberty which are the source of our strength, and which make us free.

I tremble in consideration of the day when defending her against all enemies -- foriegn and domestic -- finds the greater threat in my own countrymen. I loathe the possibility of calling an American the greatest threat to our freedom, and as such, my enemy.
posted by edverb at 10:24 AM on March 8, 2006

"BeerGrin - how does buying a gun help in this context? "
posted by jack_mo at 1:19 PM EST on March 8 [!]

It doesn't. It will just make me feel better. Honestly, my comment is kind of meaningless w/o context. I grew up in Cities all my life so gun ownership is a bit alien to me. Anyone in my family who has one is a Cop. I actually have a mild phobia of the darn things.

Fact of the mater is that the govt's actions have me nervous, and considering ideas that I would never have considered say long ago in the 90's.
posted by BeerGrin at 10:25 AM on March 8, 2006

Because I said so is not an argument.
posted by Chrischris at 12:23 PM CST on March 8

How about, "because he said so"? That is, if someone tells you "I am going to blow up one of your cities", that doesn't seem a very squishy area.
posted by dios at 10:27 AM on March 8, 2006

"if someone tells you "I am going to blow up one of your cities", that doesn't seem a very squishy area."
posted by dios at 1:27 PM EST on March 8 [!]

No, but that is not the question now is it? Anyone at anytime in the modern world can credibly say "I plan to fly an airplane into your City."

Any person for the rest of history who chooses to can make that claim. How is this not a law enforcement function? How did it become a wartime situation? How does the ever existing threat of terrorisim become the provence of the Executives wartime powers?

Do wars ever end in your mind?
posted by BeerGrin at 10:32 AM on March 8, 2006

Dios is making it up agian [sic], as usual.
posted by rxrfrx at 10:34 AM on March 8, 2006

It's pretty clear that we no longer live in a Republic, but in a quasi-democratic dictatorship.

The separation of powers is a thing fo the past.

Well, we had a good run while it lasted.
posted by empath at 10:37 AM on March 8, 2006

How is this not a law enforcement function? How did it become a wartime situation?

Because is a threat against national security from a foreign entity that is engaged in hostility against the government of the United States. There is a difference in the law. The president has the inherent power (and duty) to protect the country against threats to national security from foreign threats regardless of whether a declaration of war exists.

As for the pathetic claims that I am "making it up," it really shows how intolerant people are of differing opinions. I must be "making it up" because I don't share your point of view. Well, tell that to "well-known liberal" professor Cass Sunstein who says the exact same things I have been saying here. I guess we are both "making it up."
posted by dios at 10:45 AM on March 8, 2006

If this is a legally gray area, Dios (and I'm not arguing otherwise), and if, as you suggest, it's outside of the Court's ability to review it, how -- if ever -- will you come to a conclusion one way or another? How will any of us (those of us not blinded by partisanship, that is)? Have all the cogent arguments been made, such that there isn't one left that will tilt the scales toward one side or another?
posted by schoolgirl report at 10:45 AM on March 8, 2006

I guess we are both "making it up."

Yes.

Glenn Greenwald has dealt with all the arguments you've brought up in this thread.
posted by sonofsamiam at 10:49 AM on March 8, 2006

So, to sum up:

1. As long as somebody doesn't like the U.S. and can lay their hands on something pointy, we're under threat.
2. As long as we're under threat, the President can do whatever he wants, to whoever he wants, whenever he wants.

I think we're done here. Who wants pie?
posted by George_Spiggott at 10:50 AM on March 8, 2006

You just play that pathetic little game that people on the internet play where they try to bolster their position by saying "I used to be one of them but they left me." Your positions here make clear that you are as about conservative, or hell, about as moderate as Michael Moore.

I want to leave the personal issues to the side and examine a few of the substantive issues raised (unintentionally) by Alexandra’s post. It used to be the case that in order to be considered a "liberal" or someone "of the Left," one had to actually ascribe to liberal views on the important policy issues of the day – social spending, abortion, the death penalty, affirmative action, immigration, "judicial activism," hate speech laws, gay rights, utopian foreign policies, etc. etc. These days, to be a "liberal," such views are no longer necessary.

Now, in order to be considered a "liberal," only one thing is required – a failure to pledge blind loyalty to George W. Bush. The minute one criticizes him is the minute that one becomes a "liberal," regardless of the ground on which the criticism is based.
posted by EarBucket at 10:52 AM on March 8, 2006

You know what frightens me far more than Osama bin Laden (and mind you, I've lost people I cared about to his attacks, so I'm no stranger to the direct effects of terrorism)...

What scares me the most are Americans so nonchalant about the state turning it's awesome power against it's own people, who argue AGAINST checks and balances.

You who support this intrusion on our rights, who wish to allow our government to monitor our communications as a byproduct of war (even citing the 9/14/01 Authorization to Use Military Force), are supporting nothing less than the that which the Consitution describes as "levying war against them..."

You who support this, support turning the awesome power of the state against the constitutional rights of it's own people, citing authorization to use military force as your justification.

That you can sell it cleverly, appealing to fear and relying on tactical complication does not change it's actual meaning.

Leveraging the power with which they have been (wrongly) entrusted to make this crime darkly legal in the eys of a kept Congress, and underreported by a kept press, after the fact of being caught does not absolve them.

That they are threatening those brave souls who have reported their secret crimes -- with persecution under espionage laws, never before applied to journalists -- is a further testament to their tyraniccal designs.
posted by edverb at 10:52 AM on March 8, 2006

Maybe if the Dems didn't just assume the position [NSFW] when something like this happened you might eventually get somewhere.

I am *so* tired of listening to the dems whining about this bunch. For Christ's sake, if you can't seize the political advantage now, you might as well just give up.

(One of the biggest problems in American politics IMO is that there is no 'leader of the opposition'. Every other democracy I can think of has a leader-in-waiting and a shadow cabinet. Who speaks for the opposition. Is it Kerry? Hillary? Liebermann? Gore? Dean? No wonder the rest of the country just rolls over on the couch and flips to American Idol).
posted by unSane at 10:54 AM on March 8, 2006

What Congress is now doing is ignoring the law they themselves passed, and moving oversight back to them. It's illegal, and just as wrong as the spying in the first place. You really have to wonder what dirt they have on Congress, and the media, for this not to be front-page news. Spying on us is wrong, and collecting all electronic info from us is wrong, unless the law is followed--that isn't happening. They're not allowed to just do this, and they'll pay for it.
posted by amberglow at 10:54 AM on March 8, 2006

I think class-action suits are in order against the administration and Congress at this point. It's clearly illegal.
posted by amberglow at 10:55 AM on March 8, 2006

I've lost people I cared about to his attacks, so I'm no stranger to the direct effects of terrorism

Bill O'Reilly's got some harsh words for you, edverb. So just shut up.
posted by rxrfrx at 10:55 AM on March 8, 2006

"No, there are active threats by bin Laden and his ilk."

I'm completely missing the manner in which this "clear and present danger" idea passes the laugh test, even for those who are rigidly legalistic. The "and his ilk" part means that we're actively at war with a healthy percentage of fundamentalist Moslems. Right? Wouldn't it be a truism to say that Bin Laden and Al Qaeda are only one facet of a very real and very broad sector of the Moslem world? That is, people who hate the US and are willing to attack us? We can't shut that down, or even slow it down, by getting rid of a few key players.

Dios, are you actually arguing here that this "active threat" is of such a nature and make up that it justifies giving the administration special war powers? And if so, do you honestly believe that such an active threat can be eliminated within the next, say, ten years?

It just seems to me that even for someone rigidly legalistic this sort of thing would be wildly bad. You seem to be supporting the idea that we have a legal loophole that will let the president be, in actual fact, above the Bill Of Rights. I hear you saying that this isn't a bad thing. is that right?
posted by y6y6y6 at 11:00 AM on March 8, 2006

Bill O'Reilly's got some harsh words for you, edverb. So just shut up.

A footnote to a disgrace, his name will be.
posted by edverb at 11:08 AM on March 8, 2006

Every other democracy I can think of has a leader-in-waiting and a shadow cabinet. - unSane

Yeah, that's normal. But Canada is a little lost on that at the moment. Hopefully that will change soon. It's so soon after the ruling party of over a decade was defeated I suppose it's to be expected that it takes a while for them to reorganize and emerge with a coherant voice. But boy I sure hope the Canadian opposition doesn't take as long as the American opposition did, because I don't want Harper to be allowed to do whatever unfettered. I want him watched.

/derail
posted by raedyn at 11:16 AM on March 8, 2006

Pat Roberts has been instrumental in the cover-up of virtually every national security scandal of George W. Bush’s presidency.

Sen. Pat Roberts (R-KS): Chairman of the Senate Coverup Committee.
posted by ericb at 11:19 AM on March 8, 2006

Dios, I for one am still waiting for that list of legal scolars and links to either summaries of their arguments or the arguments themselves. It is hard for me to take you seriously when you say you can provide that info and then when asked for it reply with this:

But let me ask you this: is there anyone who I can cite to answer your question that you won't just dismissively label "a well-known conservative" and therefore automatically discount as being a hack or, more absurdly, "on Bush's payroll."

I am genueinly interested in understanding the arguments legality of this. Thanks.
posted by batou_ at 11:20 AM on March 8, 2006

Well, it's normal to be rudderless a few weeks after an election defeat. But the Dems have had *years* to prepare for this moment and I -- who follow politics closely -- have not the faintest idea who articulates their policy positions, or if they even have any.

They are going to lose the next election, and deservedly so.

What I cannot understand is why the Dems don't articulate a position based on classic liberal theory -- the very ideas that gave birth to Liberal philosophy -- the idea of individual liberties. It's a classic wedge issue which could drive a stake through the heart of the uneasy coalition between the neocons and the religious/southern right. Combine the ideas of social liberalism and fiscal conservatism and I simply don't see how they could lose.

Of course they need someone to argue those positions who is not tainted by the bullshit of the last six years. I'm thinking Edwards and Obama.
posted by unSane at 11:23 AM on March 8, 2006

They are going to lose the next election, and deservedly so.
Bingo--if it wasn't for Spitzer, i'd be sitting home for the first time ever, completely disgusted. There's no point at all in supporting people who don't fight for anything, and who allow horrendous shit to keep getting thru.
posted by amberglow at 11:31 AM on March 8, 2006

Yes, I like Spitzer. The guy's got enormous cojones, and he's also funny.
posted by unSane at 11:40 AM on March 8, 2006

Of course they need someone to argue those positions who is not tainted by the bullshit of the last six years.

See, that's the thing... the Dem leadership has certainly facilitated what's happened during the Bush administration, but since they control the mantle of "The Democrats," it's hard to get someone elected who will change things. I almost suspect that they don't mind being out of power, as long as they keep their jobs or something.

I mean, look at Dean: he was a true straight-shooter who told it like it was, he had opinions that appealed to a broad section of America, and the Dem leadership took him down hard, pleasing all the Republicans who knew he'd have a better chance than that asshat Kerry.
posted by rxrfrx at 11:42 AM on March 8, 2006

If this is a legally gray area, Dios (and I'm not arguing otherwise), and if, as you suggest, it's outside of the Court's ability to review it, how -- if ever -- will you come to a conclusion one way or another? How will any of us (those of us not blinded by partisanship, that is)? Have all the cogent arguments been made, such that there isn't one left that will tilt the scales toward one side or another?
posted by schoolgirl report at 12:45 PM CST on March 8

Well, one solution is to change Presidents. That is, if you don't like that particular application of the executive power in defending the country, then vote differently in the next cycle. But it is not clear that the legislature could review this action of the executive; nor is it clear that Congress can regulate it. And at this point, all the currently available arguments have been made. The law is not clear on many of the topics and the ultimate question of legality requires an application of many different unclear legal principles. Does FISI control? Can Congress regulate a national security action taken against a foreign country that is engaged in aggression against the United States? Does the AUMF authorize this? Does the president have inherent authority? Can FISI apply outside of domestic issues? All of these are issues which do not (Glenn Greenwald's arguments notwithstanding) have clear answers. Usually, in the area of the law there are clear precedents. Here, there is not. But it is unlikely there is any novel legal issue that hasn't been well teased out in the public dialogue on this.

Dios, are you actually arguing here that this "active threat" is of such a nature and make up that it justifies giving the administration special war powers?

No. As I've said multiple times in this thread, I'm not arguing on Bush's behalf. What I am telling you is that it is a legal gray area. It is entirely defensible as a legal matter to claim that there is an active threat to the national security. There is no clear legal principle saying that is not the case. This is a legal gray area. No legal principle says bin Laden isn't a danger to the national security. It's all arguable. Again, this is a gray area. Any side that says it is a slam dunk is being selective in its analysis. It is neither clearly legal or illegal.

I am genueinly interested in understanding the arguments legality of this. Thanks.
posted by batou_ at 1:20 PM CST on March 8

batou: Google Cass Sunstein on this topic, or just the topic. He says the same thing I am telling you here: it is a legal grey area. Arguments can be reasonably made in both directions. There is no guiding precedent; no bright line of legality. And Cass is a very liberal law professor. There are plenty of other people who say the same thing. If you are truly interested, you will search out the info.
posted by dios at 11:45 AM on March 8, 2006

By the way, the Dem slogan "American can do better" sums up the entire problem since it does not articulate any defining political value. It's essentially bullshit.
posted by unSane at 11:48 AM on March 8, 2006

jellicle: So, Dios, give us a reputable source, not on Bush's payroll, who says that warrantless wiretapping in specific contravention of a law passed to prevent warrantless wiretapping is legal.

When I read this, I groaned inside.

There *are* people supporting Bush's policies who are not being paid off. Not everyone is Jeff Gannon or that Armstrong guy. Whether they're right or not I leave up in the air at the moment, but certainly there are indoctrinated sorts floating around who have never received a cent of Republican money. By saying this, you're basically giving dios an easy return, and as I expected the moment I read it, he took advantage of it. It's a tactic he uses all the time here, and successfully, because no matter how many intelligent, thoughtful left-leaning commentators there may be here, he only needs one poorly-worded statement to reply to. He takes those comments and uses them as a straw-man to represent everyone who disagrees with him.

What you're forgetting is that dios' purpose here isn't to engage in honest debate. He's a loudspeaker. A PA-system. He won't change his opinion in response to anything you say. That's why you'll never find him in a conversation in which the administration does something the right has no easy, talking point defense for -- he hopes those things will go away, after all.

The saddest part of it? If he *did* actually open himself up to honest debate, we would (well, I would, anyway) be more receptive to his words in return.
posted by JHarris at 11:52 AM on March 8, 2006

What JHarris said. I suggest all future political discussions be conducted in the Green, where "loudspeaker" type comments would be deleted.
posted by rxrfrx at 11:54 AM on March 8, 2006

Remember that time conservatives hated line item veto power - ‘cause it was wrong?
Yeah, that was cool.
Then it became about Clinton.
I’m blaming him more and more for Bush’s cult of personality. I think the Republicans adopted the tactic because of him.
...doesn’t hold anyone else blameless of course.

“What I cannot understand is why the Dems don't articulate a position based on classic liberal theory...”

‘Cause they’re not liberals? I can almost get along with a classical liberal position socially. I think it’s a little to subject to flux, whatever is in fashion at any given time, to be stable. But I get it.

I think we’re in an age of pure opportunism. But that will change quickly. (10-20 years or so). And those of us who held to principles will have allies - those who didn’t will be on their own in a war of all against all.
I respect an opponant with principles - in part because they add to the stability of society even in conflict. They’re predicatable.
Other people feel that way as well. And have felt that way.
Dante had no sympathy for the fate of the neutrals and opportunists in Hell.
posted by Smedleyman at 11:54 AM on March 8, 2006

All of these are issues which do not (Glenn Greenwald's arguments notwithstanding) have clear answers.

Which arguments of Mr. Greenwald's do you find problematic?
posted by sonofsamiam at 11:57 AM on March 8, 2006

This is going back to the very beginning of the thread, but I can't just let it pass:


Yeah digaman, I know the idea that the Supreme Court as it exists now would block this is laughable.
That's why I said "If it survives" instead of, "It will not survive any Supreme Court challenge."
It puts chills down my spine to consider that it would not be struck down.

posted by BeerGrin at 9:15 AM PST on March 8

This is a statement made in absolute ignorance of the United States Supreme Court. Do you really believe that because Alito and Roberts have been added to the Court, the Court as a whole is going to abandon centuries of constitutional developments and veer wildly to a previously unexplored area of supreme executive power? Do you have any idea how ridiculous that sounds?

Do yourself a favor and read the opinions in Hamdi v. Rumsfeld. The only justice who agreed with the government and its argument for broad detention powers of "unlawful combatants" without access to attorneys or court oversight was Clarence Thomas. The other eight disagreed vehemently. Justice Scalia, the guy you love to hate, was explicit in saying that the only way for such detention to work was for Congress to suspend habeas corpus; otherwise, the government must try Hamdi under existing criminal laws.

Please understand that the Authorization for Use of Military Force expressly authorized detention of unlawful combatants. Despite that, the Court ruled 8-1 that such unlawful combatants must still have a way to challenge their detentions. The NSA program, on the other hand, is explicitly prohibited by a plain-meaning reading of FISA, and the only way to argue that the AUMF authorizes it is to accept that Congress intended to repeal an existing explicit statute with ambiguous and non-specific language - an assumption so prima facie faulty that it is difficult to believe anyone is willing to sign on to it.

If this case ever comes to the Supreme Court (which, by the way, is unlikely due to complications with standing), it is highly doubtful that even Thomas would sign on to it. There is reason to believe that Alito may be a strong enough supporter of the unitary executive theory to accept the program as a valid exercise of his Article II powers, but even if that happens, you still have an 8-1 decision against the legality of the program.

Stop fearmongering if you are unable to support your wild predictions with at least a shred of facts and reason.
posted by Pontius Pilate at 11:58 AM on March 8, 2006

(Just as a note, Dios, it wasn't being claimed that Posner was on the Bush payroll, it was being claimed that he didn't say what you said he said.)
posted by kyrademon at 12:00 PM on March 8, 2006

"If this case ever comes to the Supreme Court (which, by the way, is unlikely due to complications with standing), it is highly doubtful that even Thomas would sign on to it. There is reason to believe that Alito may be a strong enough supporter of the unitary executive theory to accept the program as a valid exercise of his Article II powers, but even if that happens, you still have an 8-1 decision against the legality of the program."

Well, where is the law suit, please....?
posted by ParisParamus at 12:01 PM on March 8, 2006

Democracy is dead in America.

That said, I don't think the GOP will do something so obvious as to kill the 2008 elections. The best facism is the one you can deny. They've got it about perfect, right now.
posted by I Love Tacos at 12:03 PM on March 8, 2006

Well, where is the law suit, please....?

There is at least one, the ACLU's.
posted by sonofsamiam at 12:04 PM on March 8, 2006

So...lemme see if I have this straight...

Dios, (irrespective of your position pro or con) you're saying that the executive branch, secretly spying on American citizens, without demonstrating probable cause and obtaining a warrant, not even under FISA, on domestic soil....

is "not clearly illegal"?

The Congressional Research Service report concludes that it is impossible to determine the legality due to the fact that the scope and methods of the program remain classified.

But (and this is a pretty big "but") it also determines that the administrations justifications fall flat and are in contravention of existing law, that their supporting arguments are not well founded.

If ever there was something so clear cut, you'd think that would be it, what with the Fourth Amendment and all. Who knew rights were so malleable? How convenient for tyrants. I mean, if the Congressional Research Service isn't just an arm of the left wing conspiracy to harm this country, then what is it? Sheer partisan hackery, no doubt.

Guess we should just shrug, then. Eh. No biggie. Big Daddy Government is here to keep us safe, so who needs rights? Trust them, they've proven so worthy of trust before. [/snark]
posted by edverb at 12:08 PM on March 8, 2006

Well, where is the law suit, please....?

Here you go.
posted by EarBucket at 12:11 PM on March 8, 2006

"What I am telling you is that it is a legal gray area."

That's it? Seriously? Your whole point for diving in here is to support the idea of wiggle room? I don't think you're even doing a good job of that. Your grey seems to actually be black. I think asserting that's a really dark shade of grey and the lighting is bad, at great length and with a large dose of vitriol, and asserting the whole time that you're just being purely objective, is silly.

"Ah, yes. I guess I am holding a long stick with some metal on the end. I wouldn't call it an axe though. It's really a hatchet. Oh look, a grindstone. Who put that there?"

Seriously. You need a new MO. This one is tired.
posted by y6y6y6 at 12:13 PM on March 8, 2006

Well, where is the law suit, please....?

Did you actually read what I posted? Particularly the part about how a lawsuit may be problematic because of issues of standing?

No one currently knows for a fact that he or she has been targeted by the surveillance program. There is no showing of harm. The only way to force this issue into the courts (suggested, I think, by Lederman) is for Congress to pass a statute conferring statutory standing on persons who could make a reasonable "chilling" argument (e.g., journalists) to file in federal courts for declaratory relief that the NSA program is unlawful. But that's not going to happen, of course.
posted by Pontius Pilate at 12:14 PM on March 8, 2006

"What I am telling you is that it is a legal gray area."That's it? Seriously?
posted by y6y6y6 at 2:13 PM CST on March 8

Yes. That is. Were you confused about that? Did you somewhere hallucinate the idea that I took a position on this other than that? I am telling you that all of these lay opinions being strewn about here that it is "clearly illegal" are nothing more than ignorance on stilts. People who actually know the law disagree on the topic. And the topic is a legally grey area. Some legal commentators have opinions that is acceptable, and other legal commentators have their opinions that it is not. Both are just that: legal opinions. Anyone who says it is clearly illegal or clearly legal is just full of it, especially when that person doesn't have any legal training on the topic to discern this extremely complex area of law.

It is not clearly illegal, nor is it clearly legal. There are no binding precedents to answer this question, and it is unlikely there ever would be.
posted by dios at 12:22 PM on March 8, 2006

dios, why not make a cite when you're arguing something?

instead of telling someone to google for something that you've brought up, why not just cite it yourself? you clearly have plenty of time on your hands.

it's easy: this is to what dios refers when he claims that cass sunstein agrees with him.

so is dios spending his time reading the law blogs of liberal law profs? powerline or ol' hugh hewitt's (the "jack bauer of the blogosphere"! i'm not making that up!) blog seem to be much likelier sources.

one of the better speculative reasons that i've heard as to why they didn't go through the FISA court is that the information that would have been required to swear out a warrant is "fruit of the poisoned tree," -- it was obtained using torture.

in soviet america, president listens to you.
posted by Hat Maui at 12:30 PM on March 8, 2006

Stop fearmongering if you are unable to support your wild predictions with at least a shred of facts and reason.
posted by Pontius Pilate at 2:58 PM EST on March 8 [!]

Well, for most of your post; thanks. It was a good overview of the court as it stands.

as far as the fearmongering accusation, give it a rest. If I'd meant to make a substantive statement about what SCOTUS would do, I'd have written a nice long post. As it is, I was reacting to a comment by digaman.
posted by BeerGrin at 12:31 PM on March 8, 2006

whoops! jumped the gun!

i am impressed that you finally up and linked to something that supports your argument.

good one, d!
posted by Hat Maui at 12:32 PM on March 8, 2006

Please understand that the Authorization for Use of Military Force expressly authorized detention of unlawful combatants.

Where? It says:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

You could argue that "all necessary and appropriate force" implies the detention of unlawful combatants, but it doesn't expressly say that anywhere.
posted by kirkaracha at 12:35 PM on March 8, 2006

You could argue that "all necessary and appropriate force" implies the detention of unlawful combatants, but it doesn't expressly say that anywhere.
posted by kirkaracha at 2:35 PM CST on March 8

Which is what the Court actually held, and, so the argument goes, it would equally be likely that wiretapping is an incident of war, just like detention is. The Supreme Court held that it did authorize detention as a natural incident of war. The argument is that wiretapping is as well.
posted by dios at 12:40 PM on March 8, 2006

BeerGrin:

Point taken - I withdraw the fearmongering accusation. My frustration got the best of me.


Kirkaracha:

The notion that the AUMF explicitly authorizes detention comes from the reading of it by O'Connor, Rehnquist, Kennedy, and Breyer. See the full opinion, particularly:

Justice O'Connor, joined by The Chief Justice, Justice Kennedy, and Justice Breyer, concluded that although Congress authorized the detention of combatants in the narrow circumstances alleged in this case, due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker. Pp. 14-15.

The plurality opinion agrees in part with the with Fourth Circuit, i.e.:

But it held that, in any event, such authorization was found in the post-September 11 Authorization for Use of Military Force. 316 F. 3d, at 467. Because "capturing and detaining enemy combatants is an inherent part of warfare," the court held, "the 'necessary and appropriate force' referenced in the congressional resolution necessarily includes the capture and detention of any and all hostile forces arrayed against our troops." Ibid.; see also id., at 467-468 (noting that Congress, in 10 U. S. C. §956(5), had specifically authorized the expenditure of funds for keeping prisoners of war and persons whose status was determined "to be similar to prisoners of war," and concluding that this appropriation measure also demonstrated that Congress had "authorized [these individuals'] detention in the first instance").

Further:

In other words, for the reasons that follow, we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe (assuming, without deciding, that such authorization is required), and that the AUMF satisfied §4001(a)'s requirement that a detention be "pursuant to an Act of Congress" (assuming, without deciding, that §4001(a) applies to military detentions).

The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

(Ginsberg and Souter did dissent from this reading, however.)
posted by Pontius Pilate at 12:46 PM on March 8, 2006

Dios, I just noticed this in your earlier post:

But it is not clear that the legislature could review this action of the executive; nor is it clear that Congress can regulate it.

Why is that not clear?

Article I, Section 8:

The Congress shall have Power...

To make Rules for the Government and Regulation of the land and naval Forces.


Congress has the power to regulate at the very least domestic intelligence operations, just as it had done with FISA.
posted by Pontius Pilate at 12:56 PM on March 8, 2006

(Oh, and under Article II, the executive must comply with properly-enacted Article I regulations, as in:

"he shall take Care that the Laws be faithfully executed.")
posted by Pontius Pilate at 12:58 PM on March 8, 2006

Because the president has the inherent authority to fulfill his duties as commander in chief in providing for the national security. If Bush orders a wiretap to be done on a foreign person, say Bin Laden, that decision is clearly not reviewable by the Courts or subject to limitation by Congress. If Bush orders a wiretap on someone that Bin Laden is speaking to in the United States, it becomes less clear, though still almost certainly within his authority.. If the wiretap is for someone believed to be connected with someone who is connected with bin Laden, even less clear. And so on down the chain. But, as a simple matter: Congress cannot restrict the Executive Branches' non-delegable duty to protect national security from foreign enemies as commander in chief responsible for national security. Nor can courts review those decisions. The only question is to what extent this action falls under that rubric. I didn't say the Court couldn't review it; I said it was not clear because it hinges on the multifarious definitions of who was tapped and why.
posted by dios at 1:07 PM on March 8, 2006

As I said earlier, Dios, your theory that grants Bush such sweeping, unsupervised powers to spy on Americans is interesting, but very radical, and clearly at odds with the original mission of the Senate Intelligence Committee. I guess I'm just a little more conservative in such matters.
posted by digaman at 1:18 PM on March 8, 2006

Raise your hand if you think the Bill of Rights will survive if Republicans keep the House in the November election.

Sure it will survive, but it will have to be updated.
posted by homunculus at 1:25 PM on March 8, 2006

That's actually a good clarification of your position, which wasn't clear from the brief post above. Thank you.

Dios, in Hamdi, the Court reaffirmed that capture and detention of hostile forces is an integral part of warfare. I want to ask you about electronic surveillance.

In Katz v. United States, the Court ruled that in instances of domestic investigations, the government had to comply with the Fourth Amendment, particularly the warrant stipulations. The reasoning was that the much of the "reasonableness" of a search has to do with the warrant clause, and that although the government had an affirmative national security duty, it could not invade the privacy of its citizens in violation of their protected rights. He also said that this requirement becomes even more acute in situations when national security is concerned.

Given Katz, how do you think the courts should, or would resolve the tension between the President's Commander-in-Chief powers and the limitations against abridgement of constitutionally-protected rights?
posted by Pontius Pilate at 1:33 PM on March 8, 2006

(He also said = it also said.)
posted by Pontius Pilate at 1:35 PM on March 8, 2006

If only those pesky reporters hadn't reported on all this in the first place.
posted by homunculus at 1:50 PM on March 8, 2006

Don't you people don't have anything better to do then argue with Carl Rove Jr? What's the fucking point?
posted by puke & cry at 1:52 PM on March 8, 2006 [1 favorite]

Keith leaves open the possibility of an exception to the Fourth Amendment for searches (including searches within this country) for foreign intelligence. ("Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.") Keith was after Katz and is more important to the analysis. One reason that Court left that open is because the Court may have realized they couldn't touch it. But as that is the last case on the topic, you can see it is an open door.
posted by dios at 1:53 PM on March 8, 2006

By the way, have I mentioned recently that Canada has one of the highest living standards in the world, a generous public health care system, and a streamlined immigration policy that welcomes skilled workers?
posted by slatternus at 1:58 PM on March 8, 2006

The notion that the AUMF explicitly authorizes detention comes from the reading of it by O'Connor, Rehnquist, Kennedy, and Breyer.

Thanks for the link to the Supreme Court decision. I agree that their interpretation of the AUMF is that it implicitly authorizes detention, but I still don't think it "explicitly" or "expressly" authorizes anything. I realize this may be a silly distinction to you, but I was an English major.
posted by kirkaracha at 2:13 PM on March 8, 2006

Dios, I've skimmed the case briefly, and you seem to have a very narrow reading of it. Indeed, you've cherry-picked one quote that bears little relation to the substance of the decision. (I will also note that it was decided before the explicit prohibition by Congress against warrantless domestic surveillance through FISA in 1978).

The quote you provided is more significant in context, as follows:

This case raises no constitutional challenge to electronic surveillance as specifically authorized by Title III of the Omnibus Crime Control and Safe Streets Act of 1968....the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country...There is no evidence of any involvement, directly or indirectly, of a foreign power.

In other words, the reason the Court doesn't examine the scope of the President's surveillance power is because it's not at issue at all.

Look at the main holding of the case, dios:

1. Section 2511 (3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 301-308. [407 U.S. 297, 298]

2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 314-321; 323-324.

(a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314-315.

(b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security surveillances are conducted solely within the discretion of the Executive Branch without the detached judgment of a neutral magistrate. Pp. 316-318.

(c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321.

In sum:

The Fourth Amendment requires judicial approval of domestic surveillance. The freedoms it protects cannot be entrusted to the executive branch alone without the involvement of an impartial magistrate. Domestic security is not impaired by appropriate warrant procedures.

Really, the only wiggle room the Court leaves here is:

(a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314-315.

That's not much, however. Further, there is no dissenting opinion that supports a contrary reading of Fourth Amendment protections.

So what is your point exactly?
posted by Pontius Pilate at 2:26 PM on March 8, 2006

Thanks for the link to the Supreme Court decision. I agree that their interpretation of the AUMF is that it implicitly authorizes detention, but I still don't think it "explicitly" or "expressly" authorizes anything. I realize this may be a silly distinction to you, but I was an English major.

posted by kirkaracha at 2:13 PM PST on March 8

I don't think it's a silly distinction. I will grant you that a plain-English reading of the AUMF does not appear to explicitly authorize such detention in the sense that, well, such permission is not explicitly stated in such terms. For purposes of legal analysis, however, the authorization is indeed explicit. They are just two different ways of interpreting the statute. (For what it's worth, Ginsberg and Souter agree with you that such authorization is not explicit in the AUMF.)
posted by Pontius Pilate at 2:31 PM on March 8, 2006

Damn, I should have included this in my last post.

I do have to disagree with you, kirkaracha, when you say that the Court's interpretation of the AUMF "is that it implicitly authorizes detention." The plurality opinion is quite clear in stating:

...we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe.
posted by Pontius Pilate at 2:34 PM on March 8, 2006

I was talking to someone early this morning about our shared belief that the Bush Administration is a potentially facist regime in the making, and we agreed that those of us who believe that are failing ourselves and our country by not putting our lives, or even our jobs, on the line to do anything to stop it.

This after recently reading about Germans who literally had to choose death over collusion.
posted by Danf at 2:37 PM on March 8, 2006

Here's a really simple question for dios, since he appears to be the only person in the entire thread supporting this radical interpretation of law:

What can the president -not- do under your interpretation? Clearly (you say) he cannot be restricted from accessing the private communcations of anyone he chooses, as long as he first says the magic words "National Security."

Now, let's get on our imagination caps - tell me something that the president can not legally do by simply citing national security concerns. Think of something that is, as far as you're concerned, clearly illegal.

What is it?
posted by odinsdream at 2:37 PM on March 8, 2006

Pontius, it should relatively clear if you read what I am saying. "Domestic surveillance" as you are reading is "all domestic surveillance within the borders of the United States" when the Court means "surveillance done for domestic purposes." The quote which you are claiming is "cherry-picked" is the only Supreme Court sentence articulated that goes to this factual scenario: surveillance done for national security from foreign actions within this country or not. If the government is tracking intelligence of al Qaeda members in Hoboken in a plot with bin Laden, it isn't "domestic surveillance" merely because the phone is Hoboken. It is foreign intelligence. I don't know if you are not understanding it or are just ignoring that distinction. In that regard, Kieth clearly is the more on point case because the Supreme Court specifically contemplates the issue of surveillance done within the country for foreign security reasons. And importantly, the Court doesn't address the issue of whether there is a Fourth Amendment exception---it easily could have. But it didn't. One interpretation is that the Court didn't touch because it knew it couldn't---the Court doesn't have the ability to review the Executive branch's decisions in providing national security from foreign threats.

Keith is key. Not Katz.
posted by dios at 2:38 PM on March 8, 2006

we conclude that the AUMF is explicit congressional authorization for the detention of individuals in the narrow category we describe.
posted by Pontius Pilate at 4:34 PM CST on March 8

You obviously are missing the point in the opinion. There is no explicit authorization in the text of the statute. What the Court said was that by authorizing war, it was an explicit authorization of all the natural incidents of war, including, but not limited to, the ability to detain prisoners. The statute only explicitly authorized the President to conduct war. And that explicit authorization is an explicit authorization for all those things the President needs to do to engage in war. The argument goes that wiretapping is also a natural incident of war. Which is why it is a relatively gray area.
posted by dios at 2:41 PM on March 8, 2006

this radical interpretation of law:

It's not radical. Well, maybe it is for Kos readers, but reaonable people disagree on this topic. There are some that say Bush's actions are clearly legal, some say it is clearly illegal, and some say it is clearly a gray area. I'm in the middle gray area, along with liberal, conservative and moderate legal commentators. If you think my position is "radical" then you don't anything about the legal debate.

Now, let's get on our imagination caps - tell me something that the president can not legally do by simply citing national security concerns. Think of something that is, as far as you're concerned, clearly illegal.

What is it?
posted by odinsdream at 4:37 PM CST on March 8

He cannot abolish the Constitution. That is clearly not within his powers. He cannot access taxes. He cannot grant writs of certiorari. He cannot establish a post office. He cannot issue Bills of Attainder. He cannot prohibit the transportation of alcohol. He cannot force two year Vermonters to join the circus in Arizona.

Want me to keep going?

You know, if you make an attempt to reasonably understand what I am saying, you won't come to asinine conclusions like suggesting that I am arguing the President can do whatever he wants merely by citing National Security.
posted by dios at 2:49 PM on March 8, 2006

Kieth clearly is the more on point case because the Supreme Court specifically contemplates the issue of surveillance done within the country for foreign security reasons.

From the case:

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.

I must be missing your point, because as I read the above, the Court specifically says that it will not contemplate the scope of the executive surveillance power - which is what are are debating here - vis-a-vis foreign powers.
posted by Pontius Pilate at 2:50 PM on March 8, 2006

You obviously are missing the point in the opinion. There is no explicit authorization in the text of the statute. What the Court said was that by authorizing war, it was an explicit authorization of all the natural incidents of war, including, but not limited to, the ability to detain prisoners.

Dios. Please read my posts before you respond to them. That's pretty much what I've been saying in regard to authorization for detention of enemy combatants. I shouldn't have used the word "explicit" in my early post, and I apologize if that led to any confusion. I do think, however, that I've clarified my position since.
posted by Pontius Pilate at 2:54 PM on March 8, 2006

asinine conclusions like suggesting that I am arguing the President can do whatever he wants merely by citing National Security

Right, right. We know, because we've been reading every post, that you require more than that. You require to Bush to first cite a "threat" and then to cite "national security." Which then takes whatever he's doing out of the purview of the courts, even if it's wiretapping Quakers who object to the war.

Don't worry, Dios -- we get it.
posted by digaman at 2:56 PM on March 8, 2006

I must be missing your point, because as I read the above, the Court specifically says that it will not contemplate the scope of the executive surveillance power - which is what are are debating here - vis-a-vis foreign powers.
posted by Pontius Pilate at 4:50 PM CST on March 8

Right. And no other Supreme Court opinion has comes closer than that one sentence of addressing this issue. That's the best we got on it. That tells you two things: (1) there is no guiding precedence in this area beyond the fact that the Supreme Court explicitly chose not to address it [or if you want to be partisan on, the SC either chose to not permit/prohibit it]; and (2) the Court was not inclined, and may never be inclined to address the issue, possibly because the Court lacks the authority to hear the issue.

You brought up Katz; it doesn't address this situation at all. Keith is closer to being helpful insofar as the Court at least acknowledged the issue.

Before arguing any further with me, read the opinion again and what I have been saying in this thread about it being a gray area (and probably always will be a Court will not address it). This is a gray area.
posted by dios at 2:57 PM on March 8, 2006

Thanks Pilate for putting into well-constructed legal language the very thing I was thinking as I read the opinion, including the date being prior to FISA -- which (correct me if I'm wrong) specifically put foreign surveillance warrants into the hands of the judiciary, thereby answering the unanswered question of the Keith opinion (which doesn't contemplate foreign agents within or without.)

I'm no lawyer, but I'm pretty sure what I read means basically the opposite of what Dios said it meant. Thanks for confirming that.
posted by edverb at 2:59 PM on March 8, 2006

All of the things you mention are illegal only because the legislative branch makes them so. I see no reason why, as far as your legal theory goes, the president has to abide by these laws simply because they're written down.


Maybe I should be more clear:

What action could the legislative branch take to force the president to not engage in domestic surveillance as he's currently doing? If you claim nothing, I'm assuming that you believe this is an authority that inherently belongs to the executive branch, then, regardless of what laws the legislative branch writes to the contrary?

Do you see what I'm saying? Ignoring the fact that you believe it's a gray area - what, in your opinion, would the legislative branch need to do if it wished to outlaw the NSA program? Hypothetically, of course. Could this be done?
posted by odinsdream at 3:09 PM on March 8, 2006

Dios and fellow readers: this post of mine was unfair to the nuances of Dios' position. I retract it and wish I could erase it -- it was the same kind of misleading oversimplication that I loathe in others. My apologies.
posted by digaman at 3:10 PM on March 8, 2006

Do you see what I'm saying? Ignoring the fact that you believe it's a gray area - what, in your opinion, would the legislative branch need to do if it wished to outlaw the NSA program? Hypothetically, of course. Could this be done?
posted by odinsdream at 5:09 PM CST on March 8

If it is an act of the Executive branch in implementing national security decision to protect against foreign threats, there isn't much Congress can do to regulate it. The Constitution clearly places that authority in the hands of the Executive. Separation of Powers.. As I said up thread, there are other checks against a President run amok: impeachment, voting, Constitutional amendment. But if the President is engaged in actions that reasonably and rationally related to his duties under the Constitution, it is questionable whether Congress or the Courts can limit them because of separation of Powers. (Just as the President (or Congress) can't limit the ability of a Court to hear cases where a State is a party).

On preview: I appreciate that, digaman. No hard feelings.
posted by dios at 3:22 PM on March 8, 2006

It's worth noting that Bush requested the words "in the United States" be added to the 9/14/01 AUMF -- thereby codifying the "implicit" war powers they currently claim for themselves. That request was denied by Congress.

Here's what the Bush administration requested (and did not receive):

[...] the President is authorized to use all necessary and appropriate force in the United States and against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 [...]

Here's the relevant part passed by Congress:

[...] the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001 [...]

In case there was any doubt...Congress did contemplate granting Bush the "implicit wartime powers" alluded to upthread (including but not limited to domestic warrantless surveillance, etc), and rejected the possibility of their use within our borders.

More on the legislative history here.
posted by edverb at 3:41 PM on March 8, 2006

Faced with the frightening prospect of public hearings and active Congressional oversight into President Bush's contested domestic spying program, the White House sent out its big dog -- Vice President Cheney -- to bring straying moderate Republicans to heel. ...
posted by amberglow at 4:08 PM on March 8, 2006

It really is unbelievable -- they knew they weren't allowed to do this, and are still doing it. It's a gigantic fuck you to all of us, to Congress, and to the Courts.
posted by amberglow at 4:10 PM on March 8, 2006

I am aware of the clear difference between domestic security and foreign intelligence gathering. They are obviously different animals, and I am not attempting to conflate them. I do think, however, that the Court's concerns in Keith are applicable in this instance inasmuch as there is very good reason to believe that the NSA program is not limited to, per your example, al-Quaeda members speaking to bin Laden in Hoboken.

While Keith does not specifically contemplate the scope of executive surveillance powers, it does examine the issue of domestic surveillance vis-a-vis the protections afforded by the Fourth Amendment.

The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with [407 U.S. 297, 319] respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions. It is said that this type of surveillance should not be subject to traditional warrant requirements which were established to govern investigation of criminal activity, not ongoing intelligence gathering.

The government in this case was asking for an exemption to the warrant requirement in the Fourth Amendment. As edverb and I have pointed out above, the date of the decision precedes FISA. FISA, while not fully placing the issuance of foreign surveillance warrants in the hands of the judiciary, places significant restrictions on the executive branch in that it limits warrantless surveillance to foreign powers as defined by 50 U.S.C. 1801(a) (1),(2), and (3) only. These include:

(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;

This definition does not, by the way, encompass terrorist groups or political organizations. The executive can only engage in warrantless surveillance permitted by the above so long as there is no substantial probability that it will resulted in surveillance of communications to which a United States person is a party. FISA contains a clear affirmative prohibition against warrantess surveillance of the type that the NSA appears to have been engaging in.

So. Let's get back to Keith. The case was decided prior to express Congressional prohibition of FISA, and so the Court dealt with Fourth Amendment concerns, as posted above. In response to the government's arguments in favor of warrantless domestic security surveillance, the Court said:

These contentions in behalf of a complete exemption from the warrant requirement, when urged on behalf of the President and the national security in its domestic implications, merit the most careful consideration. We certainly do not reject them lightly, especially at a time of worldwide ferment and when civil disorders in this country are more prevalent than in the less turbulent periods of our history. There is, no doubt, pragmatic force to the Government's position.

But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

So - while there is certainly a difference, I do think that the concerns exhibited in the above case are telling.
posted by Pontius Pilate at 4:12 PM on March 8, 2006

Hayden Dodged Questions on Whether Spying Program Targets Political Opponents or Journalists-- ... Multiple news reports have shown that the program was used to spy on thousands of innocent Americans with no ties to al Qaeda, and the Bush administration has been caught spying on political opponents on multiple occassions.
Bush officials cannot be allowed to spin this question. The burden is on them to show that the program has not been used to spy on journalists or political opponents.
UPDATE: Via MyDD, Hayden has dodged this question before:
Gen. Michael Hayden refused to answer question about spying on political enemies at National Press Club. At a public appearance, Bush’s pointman in the Office of National Intelligence was asked if the NSA was wiretapping Bush’s political enemies. When Hayden dodged the question, the questioner repeated, “No, I asked, are you targeting us and people who politically oppose the Bush government, the Bush administration? Not a fishing net, but are you targeting specifically political opponents of the Bush administration?” Hayden looked at the questioner, and after a silence called on a different questioner. (Hayden National Press Club remarks, 1/23/06) ...
posted by amberglow at 4:14 PM on March 8, 2006

Edverb, thank you for the legislative history links In light of this, the argument that Congress really did intend to repeal FISA with the ambiguous language of "all necessary and appropriate force" becomes even more transparently insupportable.
posted by Pontius Pilate at 4:16 PM on March 8, 2006

A few years ago I took a girl out on a date, and it went swimmingly well. We ended up in her apartment, and I told her that I wanted to fuck her. She coyly responded that I could do anything I want...

So I chopped her into itty-bitty pieces, and mixed the remains into the soup at a homeless shelter.

Fortunately, she'd given her clear consent, so the police just let it go.
posted by I Love Tacos at 4:26 PM on March 8, 2006

He cannot abolish the Constitution.
posted by dios

But your whole argument is that if he cites national security concerns, he might be able to abolish the Fourth Amendment. Can he abolish bits and pieces of the Constitution, but not the whole thing?
posted by Happy Monkey at 5:04 PM on March 8, 2006

For digaman


posted by lumpenprole at 5:23 PM on March 8, 2006

That is classic. Thanks!
posted by digaman at 5:44 PM on March 8, 2006

Does anyone still think the neocon agenda has anything to do with what’s best for America?

Hasn’t the Bush administration's actions almost always been of enormous benefit international corporations? Are world treaties, the Geneva Convention, and our constitution quaint laughable documents?

Can’t we all agree to disagree with tyranny?
posted by BillyElmore at 6:12 PM on March 8, 2006

"The argument goes that wiretapping is also a natural incident of war. Which is why it is a relatively gray area."

That's an interesting thought, dios. I would suppose that there is a way of looking at it which might help: from the point of view of the writers of the Constitution, taking into consideration the communications technology of their times.

Was opening and examining written personal mail a "natural incident of war" in terms of foreign intelligence gathering, around the turn of the 19th Century? Would Thomas Jefferson or Alexander Hamilton have considered as proper and appropriate during wartime the interception and reading of letters posted between suspected supporters of the Crown and recipients in England?

If there is precedent for this, for instance during the War of 1812, or perhaps even more to point the matter of piracy committed by ships from Tripoli (against whom Commodore Preble and the USS Constitution figured so prominently), then the gray area could be eliminated.

Intercepting enemy communications can certainly be considered a natural incident of war. It's one of the primary activities of foreign intelligence. If this has been a long-term practice of the US Government during times of foreign threat, then wiretapping may indeed be permissible, and dios has a valid point.

However, I think we need to specifically consider written letters posted by mail, as that method of communication most closely resembles telephone communication in that it is a "sealed," private conversation between two parties. Of course our intelligence services have intercepted lots of radio and radio-like transmissions, but these are broadcast through the air and can often be received by anyone listening on the proper frequency. That's not similar to a phone conversation where (it used to be that) a single wire conduit directly connects the two parties. Posted letters represent a similar system, just much much slower.

I really hate to advance this argument since it goes against my personal feelings on the matter, which are based on the Nixon affair. In that, Nixon was demonstrably spying on people with no foreign intelligence interest involved, and FISA was passed to take care of that. Now the matter isn't so clear, but I still believe that given any gray area, the decision should fall toward individual rights.

And after all, there is a court specifically designed to handle such intel requests, which was not availed of - and that speaks volumes to me about the intent of the Administration. Something smells bad there.
posted by zoogleplex at 7:16 PM on March 8, 2006

No, I'd be a saying the same thing because I am rigidly legalistic. And the law in this area is clearly a gray area.

"We demand rigidly defined areas of doubt and uncertainty!"
posted by weston at 8:28 PM on March 8, 2006

One of the most destructive tropes of the Bush era is what you might call the misapplication of doubt and certainty. No scientific theory is the last word on a subject, but even a theory as well supported as evolution is suddenly found to be riddled with holes. Climate change? Who knows what mankind's role truly is? NSA wiretapping? A huge gray area!

Where the question should be, "Should the President and the intelligence agencies have broad leeway for spying on American citizens?" the question that legal minds like Dios puzzle over is instead, "Is what the President is doing legal, as he says it is, or technically illegal?"

Same deal. Misplaced certainty wrapped in irresolvable doubts.
posted by digaman at 8:53 PM on March 8, 2006

he does it on purpose here, you know--it's his special brand of trolling.
posted by amberglow at 9:13 PM on March 8, 2006

Also a good point, digaman.

But if anyone can produce confirmable evidence that the President of the US has, during any time or war or conflict past, ordered the US Postal Service to divert all mail from a US citizen living in America over to one of the foreign intelligence agencies for opening and reading, without, and I must stress this, without a court order and with the approval of Congress, then I would consider a precedent established that could give the assertion that what Bush is doing has some legal basis.

amberglow, it's also very good practice for being a lawyer. :)
posted by zoogleplex at 9:14 PM on March 8, 2006

Hmm, I should have said "successfully ordered."
posted by zoogleplex at 9:15 PM on March 8, 2006

Zoogleplex, I think (hope?) you meant to say "without a court order and without the approval of Congress." The AUMF is far from a clear authorization by Congress to engage in domestic warrantless wiretapping, which is what makes this situation different.
posted by Pontius Pilate at 9:23 PM on March 8, 2006

Hmm, you may be right... but then again, aren't we talking about a "Select Senate Committee?" Is there an equivalent committee in the House?

Of course I realize this committee didn't exist before Nixon, but perhaps we should consider the small possibility that the situation I describe could happen with knowledge and approval of Congress during a time of declared War as defined in the Constitution or at least with knowledge of members of Senate and/or House.

If it ever happened successfully without approval by Congress, that might also have implications, and much more severe ones.

BTW I agree with you about the AUMF. I'm advancing this idea only as a possible way to eliminate the "gray area" with a clear precedent. As I've stated, IMO any "gray area" question should be resolved in favor of Constitutional individual rights.
posted by zoogleplex at 9:45 PM on March 8, 2006

Regarding these sorts of "debates"...it's high time that everyone understood that the Bushies are doing whatever the hell they want for reasons the proles are too stupid to be told about, and only coming up with justifications after the fact.

Debating the merits of those justifications always finds the same outcome...their excuses are unravelled and exposed as deceptive nonsense, meanwhile the next outrage is upon us, the last bit forgotten and replaced with a new tangled web to untangle.

Pick one - Abu Ghraib. The Downing Street Memos. The true cost of their Medicare proposal. Secret prisons. Jose Padilla. Karl Rove's inexplicable security clearance. Terri Schiavo.

I can't even begin to catalog the number of lies and nonsense excuses we've "debated" over each and every one of their outrages. Remember when they claimed they never said "imminent threat"? Or "a few bad apples"? Or "culture of life"? Yeah. The domestic spying and the ports now. What's next?

No one should be kidding themselves. We're "debating" the big lie.

Never allow the public to cool off; never admit a fault or wrong; never concede that there may be some good in your enemy; never leave room for alternatives; never accept blame; concentrate on one enemy at a time and blame him for everything that goes wrong; people will believe a big lie sooner than a little one; and if you repeat it frequently enough people will sooner or later believe it.

posted by edverb at 10:50 PM on March 8, 2006

Stiop your paranoia and work towards finding a Presidential nominee who is neither a complete unelectable a-hole. Otherwise, you get President McCain.
posted by ParisParamus at 10:55 PM on March 8, 2006

STOP, that is...
posted by ParisParamus at 10:55 PM on March 8, 2006

Hey PP...was Valerie Plame a covert agent?
posted by edverb at 10:57 PM on March 8, 2006

Terri Schiavo was functional, right?

Iraq's WMD are in Syria, right? Those aluminum tubes - clearly meant for enriching uranium. Which, by the by, they sought from Africa.

Abu Ghraib - fraternity prank?

Usama bin Laden - stain on cave wall, right?

Bush won! Stop the count? Right?

Debating a series of right wing delusions which are worth nothing more than than utter contempt. One big lie.
posted by edverb at 11:05 PM on March 8, 2006

I think PP's right about working for an electable opposition candidate, but I definitely disagree about stopping the paranoia. :)

Other than that I wouldn't get into an argument with him.

I'd like to hear dios's take on my idea about intercepting postal mail, but I guess I posted it too late in the day. Ah well.
posted by zoogleplex at 11:18 PM on March 8, 2006

ParisParamus, it's your Xanax speaking. I think you forgot to swallow me.
posted by bardic at 11:27 PM on March 8, 2006

I keep seeing the meme of "sides" from the Defenders of Dubya. As though this were a sports event and observers are the fanatics.
Let's define what these "sides" are, shall we?
There's the "All Hail King George" side and the "I love my country" side.
There's no Republican and Demcorat side here my favorite wing nut trolls so get a grip, OK?
posted by nofundy at 6:25 AM on March 9, 2006

dios:

Two questions:

* If Bush currently has full CinC war powers, when does this state of war end? A few people have asked this and I don't think you've answered. (Apologies if I missed it.)

* The only form of oversight you mentioned was voting for a different president. (Again, my apologies if I missed a more extensive answer.) Do you really think that oversight is a quadrennial event, rather than an ongoing process? How is this a useful solution in terms of checks-and-balances?
posted by vetiver at 7:48 AM on March 9, 2006

This just in: Neo-fascism working out quite well for Republicans.

Karl Rove, eyes to the 2008 election, says GOP candidate Terri Schiavo been exhumed, plugged back in, and is ready to fight for true nocon values.
posted by BillyElmore at 8:53 AM on March 9, 2006

Wonkette calls Sen. Roberts' office: ... “Good morning, my name is Margot, known as Missy, and I’m calling from the Washington, DC offices of Wonkette. I hate to take up too much of your time, and I don’t know if Senator Roberts or any of his aides are currently on the phone, but could you be a dear and just conference me in on one of their calls so I can listen in?” ...
posted by amberglow at 9:08 AM on March 9, 2006

Q. When does this state of war end?

A. Take heart! About 70 years from now, according to Rumsfeld and Gingrich in statements to the press this week.

Q. How is this a useful solution in terms of checks-and-balances?

A. Not very useful, particularly when the voting process has been tampered with through the use of hackable e-voting and general hanky-panky involving the disqualification of eligible voters and under-allocation of voting machines to primarily Democratic districts on Election Day. See also Karl Rove, Republican Party.
posted by digaman at 9:22 AM on March 9, 2006

nice find, amberglow!

Here's a key bit of Wonkette's post:

"Elsewhere, the wheels are turning in the halls of Congress to hastily grant the President after-the-fact power to continue to wiretap Americans without oversight from any legal authority."

And a very interesting comment on that Wonkette post reads:

"I sure hope that someone on Pat Roberts staff has read the Constitution!

It's obvious that Roberts hasn't!

Article 1, Section 9 reads: "No Bill of Attainder or ex post facto Law shall be passed."

For those who forgot their Latin, ex post facto means you can't pass a law after the fact."

I wonder how that's going to fly with the Supremes, if Congress does in fact make an ex post facto law to allow Presidential wiretapping without supervision? Any comment on that, dios and other lawyers?
posted by zoogleplex at 10:00 AM on March 9, 2006

My understanding was that ex post facto laws were prohibited due to the possibility of punishing someone for an act which was not a crime at the time of commission.

This Roberts King of Coverups deal seems to flip that concept on it's head...instead of retroactively making something punishable, it seems they are making a crime against the rights of citizens retroactively "legal".

I guess it truly is easier to ask forgiveness than permission (IOKIYAR rule number 1.) Is there any precedent for this sort of thing in thei history of our government?

(Great point Zoogleplex, thanks for pointing it out.)
posted by edverb at 10:23 AM on March 9, 2006

The Death of the Intelligence Panel
posted by homunculus at 10:55 AM on March 9, 2006

Do you see what I'm saying? Ignoring the fact that you believe it's a gray area - what, in your opinion, would the legislative branch need to do if it wished to outlaw the NSA program? Hypothetically, of course. Could this be done?
posted by odinsdream at 5:09 PM CST on March 8

If it is an act of the Executive branch in implementing national security decision to protect against foreign threats, there isn't much Congress can do to regulate it. The Constitution clearly places that authority in the hands of the Executive. Separation of Powers.. As I said up thread, there are other checks against a President run amok: impeachment, voting, Constitutional amendment. But if the President is engaged in actions that reasonably and rationally related to his duties under the Constitution, it is questionable whether Congress or the Courts can limit them because of separation of Powers. (Just as the President (or Congress) can't limit the ability of a Court to hear cases where a State is a party).

So, to clear this up just a little more, let me summarize what you're apparently saying:

* The constitution, written before electronic surveillance existed, gives the president certain inherent power.
* The congress can't legally stop the president from exercising his inherent constitutional power, by, for example, making laws against his activities.
* The president is now claiming that X (in this case, electronic surveillance) is one of his inherent powers.

*Thus, you're apparently persuaded that congress has no power to regulate that action of the president.

This is an extremely stupid position, you know.
posted by odinsdream at 4:04 PM on March 9, 2006

Yes it is one of his inherent powers. And the whole polemic is bullshit.

By the way, "Any comment on that, dios and other lawyers?"

Well, I don't think having a law degree, or even two law degrees makes you any more an expert on the machinations of the SCOTUS than any other relatively educated person.
posted by ParisParamus at 4:59 PM on March 9, 2006

Wow.
posted by homunculus at 7:07 PM on March 9, 2006

homunculus

Why "wow". China usually responds to the State department report with a retalitary report of "but you do it too!" I personally think the moral high ground is getting a little shaky in the US, but the reaction in Bejing isn't anything new.
posted by raedyn at 8:20 AM on March 10, 2006

Yeah, they do it every year, but this time the accusation on wiretapping is made my head spin a little. From China! Gah!
posted by homunculus at 10:33 PM on March 10, 2006

Commentary's case for prosecuting the Times under the Espionage Act.
posted by homunculus at 10:35 PM on March 10, 2006