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More on the NSA Wiretaps
Posted by: Dale Franks on Wednesday, December 21, 2005

I note today that the reasoning in my previous post on the NSA wiretaps is receiving some support from unexpected quarters, from people who I don’t think can be considered shills for the Bush Administration. John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States. U of Chicago Law Professor Cass Sunstein is one of the country’s premier liberal law professors. In both cases, they reason similarly to me in analyzing the issue.

The specific powers of the CINC are not explicitly enumerated in the Constitution, so we are left to fend for ourselves in determining what those powers are.In a Chicago Tribune op/ed today, Mr. Schmidt writes that, in his opinion, which was, by the way, the opinion of the Clinton justice department, the president has the inherent authority to conduct such wiretaps—or even searches. Show/Hide

And, of course, as we learned today, both President Clinton and President Carter authorized their administrations to undertake warrantless wiretaps, with President Clinton actually authorizing warrantless physical searches of property as well, for foreign intelligence gathering purposes.

Meanwhile, today, Prof. Sunstein,writing at the University of Chicago's faculty blog, states that Attorney General Gonzalez's position that the Authorization for the Use of Military Force (AUMF) against Al-Qaeda provides the requisite statutory authority for the NSA surveillance is entirely plausible, especially in light of the Hamdi ruling. Show/Hide

This is not to say that the issues raised are easy, by any means. In a later post, Prof. Sunstein also offers up some complex questions about the matter, and notes that the reason the questions are complex is that they have never been settled by any relevant case law. Show/Hide

The questions are, indeed, complex, and anyone who is writing—as several on the left are—that this is an open and shut violation of FISA (and therefore an impeachable offense) are simply engaging in useless bloviating.

Other issues arise in my mind, too, when thinking about how to address this, some of which I tender aseveratively, and others, inquisitively. So, let's try to run through the thought process, and see where it leads us.

The president is the constitutional Commander in Chief (CINC) of the armed forces. The specific powers of the CINC are not explicitly enumerated in the Constitution, so we are left to fend for ourselves in determining what those powers are. But it is certainly possible to draw up a list of powers that, especially in wartime, the president must logically be said to have. One of those powers, and one that is certainly an integral part of the president's ability to direct the course of the war, is to collect military intelligence about the enemy, his capabilities, intentions, movements, etc.

Before going any further with this thought, though, a digression is in order: Is this wartime? In other words, has the Congress produced an act that can be reasonably considered an act of war? The Constitution gives no guidance on what a declaration of war must be, so we must determine whether the AUMF, and the follow on authorization to use force in Iraq, constitutes a declaration of war.

As I noted in a comment to the previous post, if an act of Congress is called "The Omnibus Act to Provide Fuzzy Kitties for the Precious, Precious Foreign Children", but it authorizes the president to send the military forces of the United States to a invade a foreign country, defeat it's military, overthrow its government, and occupy its territory, then Congress has, in fact, passed a declaration of war, no matter how they may wish to publicly characterize it. Because a declaration of war is nothing more than a public statement that the normal diplomatic niceties and legalities that are usually extended to a foreign government no longer apply. Any act that expressly authorizes the United States to use military force against another country is, in fact, a declaration of war.

(Another Digression: Moreover, in the case of Iraq, in 1998, Congress passed, and the president signed into law, the Iraq Regime Change Act. That act, an explicit declaration that the policy of the United States was to overthrow the sovereign government of Iraq, coupled with the 2002 authorization to use military force against Iraq, certainly constitutes a declaration of war. Congress may not have intended that outcome, but whatever Congress intended, that is certainly what they passed.)

As far as the post-9/11 AUMF is concerned, it authorized the president to use military force against any state, or any non-state actor, that may have been involved in the 9/11 attacks. The invasion of Afghanistan, and the overthrow of the Afghani government were done as a direct result of the AUMF. As such, whatever Congress may wish to call it, the AUMF is, constructively, a generalized declaration of war against...well...essentially, anyone the President says needs to be whacked. And, again, while congress may not have intended to give the president such wide-ranging latitude, that was the act they passed.

(Yet Another Digression: the War on Terror has been characterized as a generational conflict. I think a discussion about whether it's wise to give the president—any president—such an open-ended grant of authority, might be very useful to have, because of the troubling implications that arise therefrom. But, that's another post.)

End of digression. Let's return to the president's wartime powers.

Here's the problem with what happens after Congress declares war. In so doing, they essentially give the president plenary power to conduct the war. Now, this doesn't mean that Congress has no power to reign in a wartime president. They can, for example, cut the funding for the war. Indeed, if they feel the president's conduct of the war is ineffective or incompetent, they can impeach him. And, of course, the Senate can decline to ratify any treaty that results from the conclusion of the war. Congress can also simply declare the war to be over.

Outside of those rather extreme remedies, though, the Congress' ability to oversee the fighting of the war is essentially non-existent. Once Congress gives the President the wartime ball, it's the president's to run with. And, no matter how narrowly you construe the president's wartime powers, the power to conduct the collection of military intelligence is undeniably an integral part of the CINC's wartime powers.

Any act that expressly authorizes the United States to use military force against another country is, in fact, a declaration of warSo, that brings us back to FISA. Now, I think it's undeniable that, in peacetime, Congress does have the power to regulate—at least to some degree—the executive's conduct in the day-to-day collection of peacetime intelligence. If, however, Congress has unleashed the deluge of giving the president wartime authority, then the constitutionality of the FISA restrictions on the president's ability to conduct intelligence surveillance are, I think, questionable. If the ability of the president to collect intelligence on the enemy in wartime are an integral part of the president's war making powers, then Congress cannot, by statute, eliminate the constitutional prerogatives of the president. To do so would be an unconstitutional violation of the separation of powers. If so, then applying FISA limitations in wartime would be unconstitutional.

And, again, the actual nature of the NSA surveillance is a key element here. If the president is allowing the NSA to concentrate solely on communications from persons inside the United States with persons outside the United States, and the use of that information is solely for military intelligence purposes, then I think the president has a very good argument that the plenary wartime powers of the president, which derive from the Constitution, supersede any peacetime limitations that Congress has enacted by statute.

With this in mind, the president also has a very strong precedential argument about the collection of military intelligence through warrantless searches. In WWI and WWII, Presidents Wilson and Roosevelt—both Democrats, by the way, although today's Democratic Party and the Democrats of 1917 and 1941 are entirely different creatures—freely engaged in surveillance, without warrants, of American citizens with ties to, and who were in communication with, the Imperial German, and Imperial Japanese and Nazi governments, respectively. And in so doing, Congress never raised a peep in opposition, except insofar as they thought that Presidents Wilson and Roosevelt didn't go far enough in tracking down those Kraut bastards.

It was a different time, clearly.

One thing that would be useful, I think, is to make a clear separation between the gathering of foreign intelligence, as a military operation for military purposes, and the gathering of evidence for criminal or other punitive purposes. What the president cannot claim, I think, is the ability to implement criminal proceedings against a US citizen on the basis of warrantless wiretaps. (However, having said that, the president can, in fact, detain such citizens for the duration of the war, since the Constitution explicitly gives the president the power to suspend habeas corpus during times of war or insurrection. Such detentions are not punitive, but prudential, and the president would have to release the detainees when hostilities ended. But once congress declares war, the president instantly has the constiutional—and exclusive—power to suspend habeas corpus.) Perhaps what we need is to force the executive to make a conscious choice: He can gather intelligence for military purposes, or he can gather evidence for criminal purposes, but he cannot do both without obtaining a valid warrant for the purposes of gathering criminal evidence.

But if the War on Terror is a generational conflict, this implies that the president can, in effect, suspend habeas corpus and detain citizens effectively for life, which I don't think is the way we want to go. Clearly, some deep thought needs to be given about the implications of a generational military conflict on executive power. The trouble is, I think, that the Framers thought of armed conflict as being confined to state actors, with a definite beginning and end. That means that none of the usual Constitutional provisions about wartime are really applicable to the current situation. Which leaves us...where? I dunno.

In light of all this, I think the best course of action would be to amend FISA to include international terrorism as one of the categories in which unwarranted surveillance is allowed. Right now, FISA only allows warrantless surveillance against state actors for up to one year, but not agents of international terrorist organizations.

(The Digressions Keep on Coming: Many Lefty commentators are asserting that the NSA surveillance could have been conducted under FISA, by retroactively asking for FISA warrants. That is simply untrue. FISA does not allow for the unwarranted surveillance of agents of non-state actors. Under FISA, the president could not have initiated such surveillance and then gone to a FISA court for retroactive warrants. The FISA courts are powerless to issue such warrants under 50 USC 1802.)

The president also has a very strong precedential argument about the collection of military intelligence through warrantless searchesAs it stands now, FISA does not allow the president to conduct warrantless surveillance or searches for agents of international terrorism. And that, of course, is the basis for the whole Constitutional inquiry about FISA. FISA is essentially an act that regulates the peacetime gathering of foreign intelligence. The real question here is whether FISA is even constitutional in regards to the wartime CINC powers of the president, and a very plausible argument can be made that it is not. And, even if you grant, arguendo, that FISA is perfectly constitutional, then you still have to address whether the AUMF supersedes FISA in the proximate case.

And the thing that makes it so difficult is that we are in uncharted territory here, because there's no case law that's directly on point.

What is true, I think, is that games of "Gotcha" on these issues, and wild talk of impeachment simply aren't helpful. The nature of the War on Terror means that we are in uncharted territory, fighting a conflict of a type the Framers never envisioned.

As libertarians, it seems to me that what we need is some very serious thinking about how to do some important things. We need to have some sort of environment where the president can exercise his plenary power to fight the conflict, yet do so in a way that will not, at the end of the day, amplify the powers of the executive in particular, and the government in general, through a familiarity with the regular practice of plenary wartime powers.

I certainly don't have the answers as to how to go about that. So, I find myself in the uncomfortable position of wanting the president to send US troops out to find these terrorist bastards and shoot them in the head, while at the same time, not wanting the president to have plenary power for any extended period of time.

And I don't know how to resolve the tension between giving the executive the power to effectively conduct a long-term war, and preventing the executive from becoming Napoleon over time.

I wish I did.

UPDATE: Part of the problem lies with Congress, and the nature of the AUMF. The plain language of the AUMF is more or less an open warrant for the president to whack anyone he thinks need to be whacked, for as long as the sun burns hot in space. Perhaps a part of the solution would be for Congress to grant the president a wartime warrant for a limited amount of time, subject to extension by the Congress upon expiration. That way, every year, or every two years, or whatever, Congress would have to re-examine the issue, and affirmatively extend the president's wartime powers upon expiration. This would require Congress to positively act to extend the president's warrant for each term.

The chances of Congress actually doing something like this are, of course, practically nil, if for no other reason than it would require them to share responsibility with the president. It's much easier, politically, to give the president an open warrant, then to criticize from the sidelines.

UPDATE II: Snap! In reference to Sen. Jay Rockefeller's (D-WV) deep concern about the NSA surveillance program...
The chairman of the Senate Select Committee on Intelligence yesterday scathingly disputed claims by Sen. John D. Rockefeller IV that he harbored deep concerns about the Bush administration's warrantless domestic surveillance program when he was briefed on the matter.

Sen. Pat Roberts, Kansas Republican and chairman of the normally apolitical committee, said he was "puzzled" by a letter that Mr. Rockefeller, West Virginia Democrat and vice chairman of the committee, said he sent to Vice President Dick Cheney in 2003 after one such briefing.

"In his letter ... Senator Rockefeller asserts that he had lingering concerns about the program designed to protect the American people from another attack, but was prohibited from doing anything about it," Mr. Roberts said in a statement yesterday. "A United States Senator has significant tools with which to wield power and influence over the executive branch. Feigning helplessness is not one of those tools."
This does, I think, get it exactly right. If Congress felt such deep concern about the NSA program, they could've moved to pass a law—without actually referencing the program—to specifically outlaw it. No congressman or senator made any such attempt.

Whther such a law would be constitutional is a separate question, of course, but the fact that no one in Congress made any move at all to reign in this program, despite being notified, gives the president yet another argument, to wit, that had Congress felt the NSA surveillance was beyond the pale, they could've attempted to stop it through appropriate legislation, then let the Supreme Court sort out the imbroglio that undoubtedly would've followed. Silence on the Congress' part, the administration will undoubtedly argue, gives assent.

It's difficult to escape the conclusion that what some in Congress want is the power to veto any act of the president they dislike, without having to take any responsibility whatsoever for authorizing those acts in the first place. They want power, devoid of any actual responsibility, while ensuring the executive has all the responsibility, without the power.

That's not the way the world works.
 
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Comments
Please remove them, but don’t observe them beforehand.

Assume that anything not specifically authorized by FISA and approved by a Court is illegal, including anything involving a US Citizen.

Here is a business opportunity. Offer to act as an intermediary between foreign and domestic terrorists. Pass messages for them. As a US Citizen those messages would be exemnpt from monitoring or disclosure. All telephone and email providers include your passport data as part of the message header, don’tcha know. As a US Citizen you are immune from any enforcement action as long as you deal exclusively with foreign terrorists. There could be a lot of rich libertarians out there, but they may need to find another country to live in if they think this is the way of the future.

Civil Liberties are not a suicide pact.

There may be thoughtful debate about a lot of issues, but when Osama calls Citizen, to argue that Gov’t may not listen until after it obtains a warrant is a bit lame. Elapsed time of phone call: 3 min. Elapsed time of warrent procedure: 1 hour to 6 months.

What provision of law or the Constitution gives Citizens a special dispensation to engage in terrorism?
 
Written By: Tee Jay
URL: http://
Dale, I really approve of your reasoning. Flawless as far as I can see (some might question how far that is). With the exception of BDS sufferers, I cannot see why reasonable patriots of whatever stripe cannot agree with it. Unless they are beating a political drum, of course.
This issue is a very good example of the general political situation in America today. Regardless of the particular war involved or the political party of the chief executive in charge, these issues need to be resolved because of the nuanced (nice word, that) kinds of situations that we find ourselves in today. In all fairness, this is not the kind of issue the reality based community is set up to solve for us, today. They are still mired in the pre-9/11 world and are too concerned with the intellectual issues of the horribleness of war and why we, as thinking beings, should eschew it. Think of the sheriff’s wife in the movie “High Noon”. I believe that we are faced with a similar situation in today’s world. This is an action time and the liberal intellectuals are at a disadvantage.
 
Written By: notherbob2
URL: http://
I can see the possiblity for real abuse in this situation, but monitoring the overseas correspondence of terro suspects is not high on my civil rights radar.
Meanwhile, Great Britain is doing something much more problematic to their citizens , read about it here;
http://impudent.blognation.us/blog
 
Written By: Kyle N
URL: http://
Arrgh, I cleared my cache and this thing still won’t remember my URL.
http://impudent.blognation.us/blog
 
Written By: Kyle N
URL: http://
So the question now becomes with all these heavies lining up behind the president’s right to exactly what he did;

"Will we see retractions from the folks who’ve spent the last several days calling for the head of Mr. Bush over this one"?

Personally I won’t hold my breath. I don’t think there’s enough integrity among them do that.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
Arrgh, I cleared my cache and this thing still won’t remember my URL.
That’s because the mechanism for remebering who you are is set through cookies, not in the cache.
 
Written By: Dale Franks
URL: http://www.qando.net
My fault. I’d misinformed him via email. Sorry, Kyle.
 
Written By: Jon Henke
URL: http://www.QandO.net
So, the New York Times had a year to put this story through the ringer.

And you guys (and in fact many bloggers) have done a better job getting to the heart of the matter, and conveying the full breadth of the case, both for and against, and with possible solutions.

Another nail in the mainstream medias coffin...
 
Written By: Keith, Indy
URL: http://
Very well thought out, Dale.

Not sure what the best answer is, either. Your "extension" thought bears some merit, but at the same time, I can all too easily see plenty of circumstances arising where an Opposition or just Senators Easily Swayed By Poorly Done Polls would spitefully or fearfully deny an extension of war powers (and the war) just to look good to their constituents.

And as you said, "It’s much easier, politically, to give the president an open warrant, then to criticize from the sidelines."

Considering that America has done all right for itself, all things considered, so far, I wonder if maybe all we need is a Constitutional Amendment that, every 250-300 years or so, a Constitutional Convention (or just an Amendment Convention) is held and all but a handful of laws are nullified pending the results?

 
Written By: Dave
URL: http://
If I understand the situation correctly, since this war on terrorism is probably going to last at least a generation, it seems that the president is to have unlimited discretion to act as he wishes for the foreseeable future, as long as the rarionale is "national security". Common sense and a smattering of knowledge of history would seem to tell us that there will be abuses and that the use of power will increase in scope. Who decides, after all, what the definition of national security is? If I remember correctly, the Nixon administration decided that anti-war and anti-Nixon protests were a matter of national security.
Another question is who gets to decide what the difference between criminal proceedings and military/intelligence purposes is. Is detention of a suspected terrorist a criminal or military matter? How about detention of a suspected sympathizer? Is it okay to go to someone’s employer in the course of an investigation and jeopardize their employment, maybe intentionally?
I believe the Romans would elect someone to be dictator for a certain period of time during national emergencies, with unlimited powers. In the end, this did not turn out well, and despite the obvious differences I think we should take note of this.
 
Written By: timactual
URL: http://
I believe the Romans would elect someone to be dictator for a certain period of time during national emergencies, with unlimited powers. In the end, this did not turn out well, and despite the obvious differences I think we should take note of this.
The practice of the Roman Republic was to elect a dictator for one year, and a Master of the Horse as his military deputy. During that year, the two Consuls were restricted solely to religious and administrative duties. The Dictator’s warrant expired automatically, and, in most cases, if the Senate felt a dictator was required for another year, generally a different Dictator and Master of the Horse were chosen
 
Written By: Dale Franks
URL: http://www.qando.net
Your "extension" thought bears some merit, but at the same time, I can all too easily see plenty of circumstances arising where an Opposition or just Senators Easily Swayed By Poorly Done Polls would spitefully or fearfully deny an extension of war powers (and the war) just to look good to their constituents.
That’s perfectly alright. If the Republic were damaged as a result, then we’d know exactly who to blame, wouldn’t we?
 
Written By: Dale Franks
URL: http://www.qando.net
Thanks, Dale for a very informative post. I have been discussing with my wife for years what specifically, a congressional declaration of war does.

Your answer makes so much sense - that the Constitution does not state specifically what - yet is contrary to what I’ve heard from virtually every source I’ve pursued.

You have debunked the common understanding that although our military has been engaged in four major conflict since WWII, Congress has not declared war since then.
 
Written By: Doug Purdie
URL: http://www.onlybaseballmatters.com
Common sense and a smattering of knowledge of history would seem to tell us that there will be abuses and that the use of power will increase in scope. Who decides, after all, what the definition of national security is? If I remember correctly, the Nixon administration decided that anti-war and anti-Nixon protests were a matter of national security.
And so they were, at the time, given the vested interests that the Soviets and the Chinese had in our withdrawal from ’nam; Those two were unquestionable supported and at the least loosly connected with SDS, the Weathermen and any number of other supposedly anti-war groups operating on our shores at the time. Did they pick up on people who weren’t so connected? Why of course; Investigations 101; Your list of possible suspects is always wider than the list of actual perps.

That said, your comments as regards the possibility of abuse are quite valid, and your arghument would seem to make it more important that the people we elect are trustworthy.... (which is one major reason I wasn’t happy about Clinton, I didn’t consider him and his gang trustworthy in the least)

Then, too, there’s a fair enough chance for abuse in the opposite direction as well.

To that point; Consider the number of people drawing parallels to Hitler, etc, in the recent round. Consider Kos saying just yesterday that "Bushhitler and Big Oil" had declared martial law, when the body of evidenence showed quite clearly that not only was what Mr. Bush did legal, but correct, as well.


 
Written By: Bithead
URL: http://bitheads.blogspot.com
Much of this post regugitates the right-wing talking points (e.g., Carter might have wanted to do it too) that have been dealt with handily elsewhere. I think one need look only at the reactions of those on the FISA court itself (who were appointed by the very government friendly Rehnquist) to know that Bush plainly acted illegally.

But this particular talking point is the most disingenious of all:
This does, I think, get it exactly right. If Congress felt such deep concern about the NSA program, they could’ve moved to pass a law—without actually referencing the program—to specifically outlaw it. No congressman or senator made any such attempt.
Essentially, the winger argument here is that if Rockefeller was so concerned about the NSA program, why didn’t he do something about it. Answer: BECAUSE IT WOULD HAVE BEEN A CRIME TO DISCLOSE ANY ASPECT OF THE PROGRAM. In other words, the winger complaint is that Rockefeller DIDN’T leak any aspect of the program to the press or to other members of Congress who didn’t have the access he did.

Yes - that is the winger argument. Rockefeller SHOULD have leaked the existence of the program - they very thing that Bush condemmed the other day.

Of course if Rockefeller had done such a thing, wingers would have howled in outrage.

Dale, of course, tries to get around this problem by suggesting that Rockefller or someone in the know could have moved to pass a law to outlaw the program without referencing the program. Let me say that one more time so you understand what Dale is saying: A concerned member of Congress could have introduced a bill to outlaw the progran, but the bill could not reference the program it would have outlawed.

Imagine for one moment how that would work. A senator gets up on the floor and says that he is introducing a bill to eliminate something - but he can’t tell you what that something is. Imagine trying to write that bill.

More to the point: Such a law was unnecessary - there already was a law on the books outlawing the practice: FISA. How do I know that? Because Alberto Gonzalez said so. He said they didn’t go to Congress asking for a new law because they knew Congress wouldn’t have given them one. So they knew FISA prohibited what they were doing. The knew it. Otherwise, Gonzalez would have had no reason to say that.

While it is always hard to take anything a winger says seriously, this issue takes us into new territory. When wingers have to fall back on the argument that the Dems are at fault here for not disclosing the existence of a classified program - when they have to argue that it is the Dems’ fault because they did not break the law, you know wingers have lost any right to be taken seriously.

C’mon Dale.
 
Written By: mkultra
URL: http://
oops.
"unquestionable supported" = unquestionably supported "

Sorry.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Essentially, the winger argument here is that if Rockefeller was so concerned about the NSA program, why didn’t he do something about it. Answer: BECAUSE IT WOULD HAVE BEEN A CRIME TO DISCLOSE ANY ASPECT OF THE PROGRAM. In other words, the winger complaint is that Rockefeller DIDN’T leak any aspect of the program to the press or to other members of Congress who didn’t have the access he did.
Comon, MK, don’t be daft. There were several ways to riase objection, inclduing knocking the funding out from underneath it, which if I recall rightly, congress has the power to do.

And isn’t it funny how he didn’t rase such concerns while Clinton was in oriface?

 
Written By: Bithead
URL: http://bitheads.blogspot.com
Um...
Imagine for one moment how that would work. A senator gets up on the floor and says that he is introducing a bill to eliminate something - but he can’t tell you what that something is. Imagine trying to write that bill.
I’m pretty sure you know that he could simply introduce a bill that make it illegal to do [X] without ever mentioning that X is currently occurring. That would be perfectly legal and deal with his concerns.
 
Written By: Jon Henke
URL: http://www.QandO.net
And isn’t it funny how he didn’t rase such concerns while Clinton was in oriface?
Show me an instance where Clinton actually violated FISA - I will condemn it. But if your defense is the other guy broke the law too, you’re gonna lose. Something tells me a jury probably would not vote to acquit.
I’m pretty sure you know that he could simply introduce a bill that make it illegal to do [X] without ever mentioning that X is currently occurring. That would be perfectly legal and deal with his concerns.
It would of course have to originate with someone in the know. Do you really think that such a law wouldn’t tip anyone off to what was going on? More to the point - and again it bears repeating - what Bush was doing was already against the law. So why in the world would anyone get up an ask to outlaw something that was already outlawed?

Think about this for a moment. We make laws in public. If Rockefeller or whoever got up on the floor and said I want to introduce a law that prohibits the President from spying on Americans without a warrant, someone would have pointed out to him such a law already exists. And then what? Rockefeller would have said - "I know that, but I want to do it anyway." You don’t think someone might ask: What does Rockefeller know? What’s going on? Is Bush spying on Americans? What gives? Maybe we should look into this.

More to the point, Rockefeller would have run the risk of violating his duty to keep the information classified.

No - the problem here is that FISA is clear, and nothing in the Hamdi case, or the Article II, or anything of the like changes that fact. If wingers would just admit Bush broke the law, they would come off as more credible. But this "he didn’t break the law, or if he did, he did it for us" argument in the alternative dilutes their position.
 
Written By: mkultra
URL: http://
For the record, there is a limit on the President’s plenary powers - it’s called an ’election’, and it happens every 4 years. The more I see the beauty of our founder’s plan - the more amazing it appears.



As for the troll (mk), if FISA outlaws spying on American citizens during peace-time, and we are at war - how (exactly) does it apply?



Are you honestly suggesting that the executive branch of our government should stop following links to terrorists when they figure out that one of them is a US citizen? One wonders how you would have felt about FBI or BATF spying on Timothy McVeigh or his group? One also wonders how you feel about NSA observing phone conversations between Osama (or one of his minions) and a US citizen in your neighborhood?



In _NO_ case are we talking about NSA just randomly selecting US citizens as a target, and then spying on them. In all cases we are talking about cases where a US citizen was tied (through electronic communications) to previously identified foreign terrorists. (Granted, some of the contacts have probably turned out to be perfectly innocent bystanders - travel agents, plumbing supply clerks, cell phone suppliers, electronics store clerks, fireworks purveyors, agricultural chemical dealers, etc. But maybe some of them were actually intending to help the terrorists? Wouldn’t it be a good idea to sort them out?)
 
Written By: RWilson
URL: http://
Show me an instance where Clinton actually violated FISA - I will condemn it
I’m still waiting for someone to show me where Bush did, actually... and that’s the point.
Think about this for a moment. We make laws in public. If Rockefeller or whoever got up on the floor and said I want to introduce a law that prohibits the President from spying on Americans without a warrant, someone would have pointed out to him such a law already exists.
Actually, no it doesn’t. The word ’unreasonable’ adds conditions.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
And MK, while I’m thining about it; I’m quite interested, that the party that gave us Waco, Ruby Ridge, worked to hard to slander Juanita Broderick, Robert Bork, Clarence Thomas, and Monica Lewinsky (Trailer park trash?) and gave Ellian Gonzolez back to Castro, are now suddenly demonstrating their "long-abiding interest in civil rights".

You’ll forgive me if I don’t think the position credible, given the long history of the Democrats, and your long history of going to bat for them in the face of all fact.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
it seems that the president is to have unlimited discretion to act as he wishes for the foreseeable future, as long as the rarionale is "national security".

*****

Actually not.

The President only has unlimited discretion in regards to

"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."
 
Written By: Keith, Indy
URL: http://
the party that gave us Waco, Ruby Ridge,
Ruby Ridge occurred entirely under the Bush administration; the Waco raid was initiated under the Bush administration, though the raid didn’t actually occur until February of 93. When Reno took office, an ATF official had already been killed.

The Ruby Ridge thing, in particular, is annoying. I’m not sure how it got started, but a lot of righties seem to still believe that had something to do with Clinton.
 
Written By: Jon Henke
URL: http://www.QandO.net
Jon;

You ARE aware of the political affiliation of most career government types, right?

 
Written By: Bithead
URL: http://bitheads.blogspot.com
No, do tell. What is the political affiliation of AFT agents and FBI snipers? Please document this magnificent insight of yours.

Not that you’re really fooling anybody. Considering the list you presented, it’s rather clear that you intended to attribute Ruby Ridge to the Clinton administration.
 
Written By: Jon Henke
URL: http://www.QandO.net
More to the point - and again it bears repeating - what Bush was doing was already against the law.
And yet, oddly, a number of distinguished Law Professors from both the right and left side of the political spectrum, seem to disagree.

How terribly odd.
 
Written By: Dale Franks
URL: http://www.qando.net
I’d comment, but the NSA didn’t like my posting and asked me to revise it.....
 
Written By: Joe
URL: http://
Dale~

Very thoughtful analysis. Like you, I am extremely troubled by the open ended nature of the Executive’s power in the current situation. The War on Terror is likely to morph in any number of directions over the next few years and essentially leaving it to the unbridled discretion of the Executive Branch as to who and what is subject to the Executive’s "inherent" powers is disturbing indeed. There is one assertion in your piece that needs more thought:

Outside of those rather extreme remedies, though, the Congress’ ability to oversee the fighting of the war is essentially non-existent. Once Congress gives the President the wartime ball, it’s the president’s to run with.

Why can’t Congress in its grant of war powers to the Executive limit the scope of those powers? I don’t find any limitation to that effect in Article II. If it cannot, then is the Geneva Convention merely an aspirational document that can be abrogated by the Executive whenever it believes it to be necessary? If Congress cannot limit the Executive’s power, then what has the torture debate been about? Would these also be unconstitutional?

My take is that Congress can limit the Executive’s wartime powers and that FISA on its face is therefore not unconstitutional. I think it is fair to say that we don’t know enough at this point to judge whether the Executive has violated FISA, but it is a limit on the Executive’s discretion.
 
Written By: Steven Donegal
URL: http://
Adimistration defends its position here.
 
Written By: A fine scotch
URL: http://
Ummm, that’s "Administration". I kan spel, rully.

Have a happy holiday season, everyone.
 
Written By: A fine scotch
URL: http://
since the Constitution explicitly gives the president the power to suspend habeas corpus during times of war or insurrection

I must have missed this part of the Constitution? Can you cite the Article and Section? I mean, I see the part about suspending habeas, but that’s in the congress section, and it says it can only be suspended "when in cases of rebellion or invasion the public safety may require it," not "during times of war or insurrection."
 
Written By: Ugh
URL: http://
And yet, oddly, a number of distinguished Law Professors from both the right and left side of the political spectrum, seem to disagree.

How terribly odd
You cite one professor - Sunstein. And even he isn’t convinced by the argument he is making. Why? Because the argument is that the use of the word "force" in the AUMF means "aborgation of the procedural requirements under FISA." In other words, the argument is that by using the word "force," Congress said you can engage in warrantless wiretaps prohibited by FISA.

This is a funny argument coming from you Dale. If a liberal were to so loosely interpret the law as you seem to do here, you would be howling. Stated another way, the word "force" does not mean "we hereby aborgate the provisions in FISA relating to the domestic surveilance of American citizens." Try as I might Dale, even my "liberal" brain cannot stretch the law to mean that. And in any other context, you would ridicule such an interpretation. But since it is Bush making such an argument, I understand why you would make an exception here. And no, the Hamdi case does not support this interpretation. Taking prisoners of war may be incidental to the use of force, but violating FISA is not.

You got any other argument YOU want to make?
And, of course, as we learned today, both President Clinton and President Carter authorized their administrations to undertake warrantless wiretaps, with President Clinton actually authorizing warrantless physical searches of property as well, for foreign intelligence gathering purposes.
Yes - and your point is? Both executive orders you cite require the government to comply with FISA. You aren’t making any kind of point here.

Oh - and one more thing:
As I noted in a comment to the previous post, if an act of Congress is called "The Omnibus Act to Provide Fuzzy Kitties for the Precious, Precious Foreign Children", but it authorizes the president to send the military forces of the United States to a invade a foreign country, defeat it’s military, overthrow its government, and occupy its territory, then Congress has, in fact, passed a declaration of war, no matter how they may wish to publicly characterize it. Because a declaration of war is nothing more than a public statement that the normal diplomatic niceties and legalities that are usually extended to a foreign government no longer apply. Any act that expressly authorizes the United States to use military force against another country is, in fact, a declaration of war.
No - it’s not.

As I have explained previously, AUMF stated that it was providing "specific statutory authorization" to except Bush from the 60-day reporting requirement in the War Powers Act. There are two instances under the War Powers Act in which the reporting requirment may be suspended: (1) when Congress provides specific authorization or (2) when Congress declares war.

If Congress intended to declare war, it could have easily said so. It could have easily said that it was "declaring war" for purposes of the WPA’s 60-day reporting requirement. It didn’t. In fact, it EXPLICITLY took the opposite route.

So please, Dale, explain why Congress intended to declare war when they had the option of choosing language that would clearly express such an intent, and when they chose to do the opposite.

So far, this is the only explanation I see.
Any act that expressly authorizes the United States to use military force against another country is, in fact, a declaration of war.
No - it’s not. And if you read the War Powers Act it becomes abundantly and overwhemlingly clear that Congress can authorixe the use of force without declaring war. It is right there in the text of the act. Read it. Indeed, if you actually take some time to study the legislative history of the War Powers Act, it becomes even more clear.

Again, you got any other arguments you want to run up the flag pole. This is fish-in-a-barrel stuff - you make it too easy.
 
Written By: mkultra
URL: http://
"For the record, there is a limit on the President’s plenary powers - it’s called an ’election’, and it happens every 4 years"
That is assuming we know what he is doing which, in the case of secret activities, is a little unlikely. And even if the Pres. is unelected, does this undue all the damage he may have done? At any rate, an election is not a limit on his plenary powers, only a limit on the duration of the powers.


"And MK, while I’m thining about it; I’m quite interested, that the party that gave us Waco, Ruby Ridge, worked to hard to slander Juanita Broderick, Robert Bork, Clarence Thomas, and Monica Lewinsky (Trailer park trash?) and gave Ellian Gonzolez back to Castro, are now suddenly demonstrating their "long-abiding interest in civil rights"."

I’m glad you brought that up. Since gov’t. agents violated existing law and regulations then, what makes anyone think they will be less likely to do so with even more relaxed restraints? As for who was in charge at a particular point in time, there is enough blame to share. Anyone ever hear of the so-called "law of unintended consequences"?

"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"

I’m no lawyer, but even I can see a lot of wiggle room in this.

 
Written By: timactual
URL: http://
defeat it’s military
You should really try to remember that "its", the possessive neuter pronoun, does not contain an apostraphe - any more than do the possessive male and female pronouns, "his" and "her".

It’s these little things that distract attention and really lower the quality of writing.
 
Written By: Thisbe
URL: http://
You should really try to remember that "its", the possessive neuter pronoun, does not contain an apostraphe - any more than do the possessive male and female pronouns, "his" and "her".

It’s these little things that distract attention and really lower the quality of writing.
Bite me. Maybe when you’ve sat down a dashed off a 2,600 word piece in one sitting and you’ve gotten it consistently perfect, then perhaps I’ll be interested in your niggling little criticisms.


I mean Jebus Cripes, you read this, and the main contribution you can make, after judicious thought, is to criticize a typo?

I bet you’re a barrel of laughs at parties.
 
Written By: Dale Franks
URL: http://www.qando.net
No, do tell. What is the political affiliation of AFT agents and FBI snipers? Please document this magnificent insight of yours.
For someone so supposedly anti-government as yourself, this should be a slam-dunk, ya know? Forget the triggermen for a moment,(you knew that’s not what I’m talking about, or should have) and concentrate on their supervisors, and the policy wonks above them.

Is it any secret that such government paid positions are the last holdout for union types? Is it any secret that government workers overwhelmingly vote Democrat? The image of Joe Wilson leaps to mind as an example of such.
Considering the list you presented, it’s rather clear that you intended to attribute Ruby Ridge to the Clinton administration.
No, Jon... no.

Here we find you trying to stuff words in my mouth so as to skewer me with them. I meant precisely and exactly what I said: Democrats.

Nice try, though.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
I’m glad you brought that up. Since gov’t. agents violated existing law and regulations then, what makes anyone think they will be less likely to do so with even more relaxed restraints?
The amount of restraints doesn’t mean all that much in the end to someone intent on breaking them. What matters is the quality of people given power. This deal of eecting people to positions of power isn’t a brand name contest, nor is it a game. It’s deadly serious given the consideration of what can happen when those trusts are abused.


 
Written By: Bithead
URL: http://bitheads.blogspot.com
I still would like to know...

What is morally and/or legally wrong with tapping the communications from a person in the USA, to a terrorist on foreign soil, in order to gain intelligence of possible terror attacks by an international terrorist organization...

I guess it makes all the difference in the world if you want bring charges against the terrorists, or disrupt their attacks and kill/capture the terrorists.

It seems clear to me that there is enough "wiggle room" in the law, that the legal advice the President got was well founded. The Courts will decide if it was the correct advice. I doubt it’s an impeachable offense to act on well founded, but incorrect advice.

It also seems clear to me that the usual suspects are ahead of the facts on this story. And I suspect it will bite them in the ass when the facts catch up to them. Say in Nov 06.

In the end, what will be remembered?

President Bush was doing what he could to protect National Security. He ordered the branches of the government to push right to the limit of the law, as they understood it at the time. That pushing occasionaly made new ground, which the Courts and the Legislative Branch then pushed back or made accomodations for.
 
Written By: Keith, Indy
URL: http://
By the way, it’s apostrophe.
 
Written By: timactual
URL: http://
For someone so supposedly anti-government as yourself, this should be a slam-dunk, ya know? Forget the triggermen for a moment,(you knew that’s not what I’m talking about, or should have) and concentrate on their supervisors, and the policy wonks above them.
Your paranoid rationalization is duly noted. It’s not believable, but it’s noted.
 
Written By: Jon Henke
URL: http://www.QandO.net
Rationalization? Hardly. You tried putting words in my mouth and got called on it.

But, nice try, Jon.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
Rationalization? Hardly. You tried putting words in my mouth and got called on it.
That’s a pretty damned ironic response from a fellow who just asserted—sans the slighest bit of evidence—that Ruby Ridge was directed and performed by Democrats.
 
Written By: Jon Henke
URL: http://www.QandO.net
Not nearly as ironic as a supposed libertarian defending Democrats. That aside, though;

I thought it rather accepted fact that most career government types were liberal.
A point nicely reinforced by Billy Hollis in this thread.

Oh, and lest I forget; (the subject, recall, was the Democrats and their duplicity over rights) Isn’t it interesting that Jim Mc Dermott, one of the morons screaming loudest about the ’rights of Americans’ is the one who leaked a tape of a phone meeting between congressional Republicans in direct violation of both federal and state law back in (what was it) 1997? (Here’s a reminder)
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Source: Democrats. com
Given the source, I rather doubt it.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
"But once congress declares war, the president instantly has the constiutional—and exclusive—power to suspend habeas corpus."

One difficulty I have with this statement. The exception to the Habeas Corpus rule, that is, the statement that it may only be suspended during time of rebellion or invasion when the public safety may require it, is an Article 1 clause which would seem to mean that the suspension of the writ may only be undertaken by Congress and, since no comparable clause appears in Article 2, NOT by the President.

Although the decision was never enforced and was later validated by Congress, President Lincoln’s suspension of HC was overruled by Chief Justice Roger B. Taney in ex parte Merryman, 1861, ruling that only Congress could suspend HC (Hall, Kermit L. Editor, The Oxford Companion to the Supreme Court of the United States, Second Edition, 2005; p. 416). "Pursuant to statute, later Presidents invoked limited suspensions in 1871 and 1905. A presidential suspension in Hawaii in 1941, however which was performed without statutory authorization was ruled illegal by the supreme Court in Duncan v. Kahanamoku (1946)." (From the article on HABEAS CORPUS by David Fellman)

Comment?
 
Written By: Craig R. Harmon
URL: http://www.smackmybooty.com
That is to say, Congess later validated Lincoln’s suspension of the writ. Nevertheless, Taney’s decision (ex parte Merryman) that Lincoln HADN’T the authority to suspend Habeas Corpus stands as law and was reinforced in Duncan v. Kahanamoku.
 
Written By: Craig R. Harmon
URL: http://www.smackmybooty.com

 
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