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Censure Lies, Censure Myths
Posted by: Jon Henke on Wednesday, March 22, 2006

FactCheck fact checks the RNC ad on the Feingold Censure...
A GOP radio ad accuses Democratic Sen. Russ Feingold of Wisconsin of proposing to censure President Bush "for pursuing suspected members of al Qaeda," which isn't true. Feingold has stated he supports wiretapping suspected terrorists.

His measure would censure Bush for ordering wiretaps on US soil without a court warrant, for failing to notify all members of the Senate and House intelligence committees, and for "efforts to mislead the American people" about the legality of the program.
This is not a difficult thing to grasp; we're not talking about minor nuances, or complicated legal distinctions. The Democrats do not oppose the surveillance of terrorists. Senator Feingold himself said that "[nobody questions] whether the government should wiretap suspected terrorists. Of course we should and we can under the current law." Democrats — and Feingold's censure — merely criticize Bush for the "unlawful authorization of wiretaps of Americans within the United States without obtaining the court orders required".

Now, you may disagree with the critics view on that issue, but spare me strawmen like those employed by President Bush...
I did notice that nobody from the Democratic Party has actually stood up and called for the getting rid of the terrorist surveillance program. You know, if that's what they believe, if people in the party believe that, then they ought to stand up and say it. They ought to stand up and say, The tools we're using to protect the American people shouldn't be used. They ought to take their message to the people and say, Vote for me. I promise we're not going to have a terrorist surveillance program. That's what they ought to be doing. That's part of what is an open and honest debate.
That is not honest debate. The President has not noticed any Democrats calling for the elimination of "a terrorist surveillance program", because there are none.

This is national security stuff, people. It's important. Playground taunting and deceitful strawmen cheapen our political discourse and weaken our democratic decision-making process.

Divider



On the other side, I'm not sure that Greenwald's claim that no "investigation is needed before it can be known whether the President broke the law" really stands up. While I tend to agree with his analysis of the legalities in question, it's ridiculous to argue that we can just skip the investigation. The fact is that some are charging the administration with breaking the law, while the administration is making an argument that it did not — and, most importantly, the relevant decision-making bodies (House and Senate) are divided on those questions.

What's more, if pressed to vote without a clear legal investigation and verdict, they would almost certainly would fall on the President's side.

If there's a legal dispute and critics of the administation want to make the case that Bush did, in fact, break the law, then they need to get an actual judgement. A prosecutor cannot simply assert that his case is air-tight and call the jury. The defense gets to make their case, too, and the legal arguments the administration is making are relatively unexplored.

With that in mind, it really is "inexcusable that all of the Republicans on the Senate Intelligence Committee voted against Sen. Rockefeller's motion to conduct an investigation".

That leaves us at a roadblock, though. I'm not sure that a highly-polarized body like Congress is a terribly useful place to conduct this sort of investigation. Where would objectivity start and partisanship stop? Moreover, is Congress really going to be an objective adjudicator of the line between Executive and Legislative power? (see: wolf, henhouse)

Considering the conflicts of interest and the under-explored legals arguments involved, this is a case that really begs for Supreme Court review. Unfortunately, since it is essentially impossible to determine who has standing to bring a lawsuit here, this will almost certainly end up in a political compromise, which will answer none of the important underlying questions.

If critics want to press this issue home, they have absolutely got to get a ruling on the legal issues involved. Unanimity on the left side of the blogosphere is no substitute for a majority of votes in Congress.
 
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Comments
I cant blame the Republicans for not wanting another grandstanding investigation in the senate. Remember the Roberts and Alito confirmation hearings? Joe Biden and Ted Kennedy competiting for most bloviating? And will we get Tom Coburn crying some more?
 
Written By: Chris
URL: http://
Well, that’s exactly it. Congress is an institution perfectly suited for circuses. It’s hard to expect anything else. No matter how it comes out, the losing side will cry foul. Because Republicans were "more loyal to the President than the Constitution", Democrats "chickened out", "Congress made an illegal power grab", or "Democrats railroaded the President for partisan gain".

That’s exactly why Congress is ill-suited to decide this case.
 
Written By: Jon Henke
URL: http://www.QandO.net
Using Feingold’s strawman to counter Bush’s strawman I see. Tapping some American’s phone is rather pointless if that person never picks up and uses said phone - Tapping a phone in only useful if there is a conversation ongoing. Which means there has to be more than one person involved. American and terrorist.

Bush claims we can listen in on terrorists all we want - sidestepping the American component. Feingold claims we it’s unlawful to listen to the American - sidestepping the terrorist component.


 
Written By: bains
URL: http://
Bush claims we can listen in on terrorists all we want - sidestepping the American component. Feingold claims we it’s unlawful to listen to the American - sidestepping the terrorist component.
The american component is the only important one. FISA explicitly requires a warrant for any intercept in which there is a "substantial likelihood" that the surveillance will "acquire the contents of any communication to which a United States person is a party". It doesn’t matter if Osama Bin Laden himself is on the other end of the phone, a US Person still has constitutional rights and the government must seek a warrant.
 
Written By: Jon Henke
URL: http://www.QandO.net
For someone claiming the high ground, I don’t believe you’re being very honest about the Democrats complaints and position on the matter.

They SAY that they are for - just as you say you are for - monitoring/eavesdropping on terrorists.

That’s a nice thing to say, isn’t it?

But they are insisting that the administration MUST get warrants for every communication where at least one end is in the United States. Let’s also take an opportunity to note that the Dems oppose ’Roving Wiretaps’ against terrorists and fought to kill the Patriot Act. (Off the top of my head, I don’t know your position on roving wiretaps.)

The practical reality of requiring a wiretap for every communication into the US will mean that there will be no eavesdropping on terrorists that are in the US. I could devise any number of proceedures which terrorists could use to require a new warrant every time a known terrorist in a foreign country calls a number in the US, thus straining our legal system to its limit and rendering the usefulness of our information gathering ineffectual.

Not only that, but it again returns our fight against terrorism from a war fighting posture to a crime fighting posture. A return to failed policy.

No thank you. This is a war. The President has war time powers. There is no law which required the ’full intelligence committee’ be briefed. The President briefed the leadership. Some argue that even this was more than he was legally required to do, but his efforts demonstrate ’good faith.’

Furthermore, the way all sources have described the actual intelligence gathering, it appears that it is outside the scope (by definition of what constitutes electronic surveillance) of FISA.

NED
 
Written By: NewEnglandDevil
URL: http://
I’m suprised there hasn’t been a moot court over this topic.

Certainly our vaunted legal education institutions could provide a good show of debating the legalities of this.
 
Written By: Keith, Indy
URL: http://
They SAY that they are for - just as you say you are for - monitoring/eavesdropping on terrorists.

That’s a nice thing to say, isn’t it?
The administration was explicitly offered the opportunity to amend FISA to correct for inadequacies. The Bush administration rejected the opportunity. Your turn.
 
Written By: Jon Henke
URL: http://www.QandO.net
Bains writes:
"Bush claims we can listen in on terrorists all we want - sidestepping the American component. Feingold claims we it’s unlawful to listen to the American - sidestepping the terrorist component."
The law involved says 1 year warrantless surveillance is just fine as long there is no substantial liklihood of intercpeting a US person’s communications. Substantial isn’t specified, and there is no reason to think halting a given "surveillance" of a target for a microsecond once per year doesn’t cover the yearly exclusion.

I’m sure Jon is horrified if its 1 in 10 million; as long the information is used for military purposes—nondomestically—I could care less. The Constitution however could not care less (to anthropomorphise it drastically). There is now no and has never been a Constitutional protection of communications with the enemy during war, however accidental. “right of the people to be secure…against unreasonable searches and seizures, shall not be violated” Jon Henke, on the question of whether this is reasonable, you do and should lose.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
"The administration was explicitly offered the opportunity to amend FISA to correct for inadequacies. The Bush administration rejected the opportunity. Your turn."

A non sequitor.

Since when is either not applying at all or explicitly allowing the behavior an inadequacy, when the executive desires to do something? If you haven’t noticed Jon, the legislature can write whatever laws it wants, and the executive can execute or veto. The feeling of the executive aren’t even especially relevant to the topic.

But then you haven’t made an honest argument yet, or not faced up to what you are saying—and I really don’t think you have a clue what you are saying, and I think you have forgotten what the Constitution says.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Well one problem Keith is that much of the details havent been released and much of the debate about it uses suposition and guessing.

My basic grasp of this is that what the president did was right, but that he may have broken the law to do it. Thats why I was happy to see congress first and formost before any investigation or circus, work together and adjust the program to allieviate most rational concerns.

I can see this connected back to roving wiretaps. The laws on wiretaps were clearly outdated to the point where it was practically impossible to get a useful wiretap given current technology (throw away cell phones, people having multiple phone numbers), so the law had to be brought into the 21st century to maintain is usefulness. It appears that is similar to what happened here I think. The law was outdated compared to the technology we now have at our disposal, and to the threats we face. Bush thought he had the justifications to do it the way he wanted without reworking the law or asking for congressional help or changes. Other’s obviously diagreed.
 
Written By: Chris
URL: http://
Jon — frankly, I think it is a terrible idea to leave this up to the Supreme Court. Just as you claim that Congress will almost certainly support the president, so will the Supreme Court — they already have, and they added two more Bush nominees since then. I don’t think it a stretch at all to suppose they would support Bush and strike down FISA in all its forms — an action which would have dangerous consequences for this country for decades. At least with the current Congressional investigation (and subsequent passage of a law retroactively legalizing NSA wiretaps) the law can easily be changed at a later date when the makeup of Congress (or the Executive Branch) shifts. The Supreme Court is much harder to change.

And NE, I find it humorous that you raise strawmen in your comments to a post on the usage of strawmen as a rhetorical device. Opponents of warrentless eavesdropping are not insisting Bush obtain a warrant before all communications with suspected terrorists — current FISA statutes specifically allow the NSA to conduct an investigation and retroactively apply for the warrant to conduct it after the investigation is completed. Rather, we want some evidence that the suspects being eavesdropped upon are actually accused of something.
It is not about expediency — the administration admitted as much when they refused to support DeWine’s proposal updating FISA in 2002. They claimed FISA worked fine as is, that it was not a hindrance.
 
Written By: Tom in Texas
URL: http://
"There is now no and has never been a Constitutional protection of communications with the enemy during war, however accidental."

Once again, this is not the point. The question is: does the constitution protect you from gov’t listening to your conversation to determine whether or not you are a terrorist.


Oh look — the ful fourth amendment actually says ’The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’

I think this was added (and omitted by yourself Tom) for a very specific reason — to prevent the government from arresting/investigating without a warrant, and to ensure that no warrants could be executed that allow limitless eavesdropping.
 
Written By: Tom in Texas
URL: http://
Tom in Texas writes:

"Rather, we want some evidence that the suspects being eavesdropped upon are actually accused of something"

Umm, no. That’s irrelevant. In fact, intelligence gathered without warrants should be and I believe would be excluded from criminal proceedings against a subject of the surveillance.

This is not a domestic surveillance program, this is a wartime intelligence gathering program intended to thwart an unconventional enemy in wartime. It is about where their bombs are going and where ours should go. It is not about "suspects" who are to be tried in a court of law. There is no need for a target of a wiretap to be thought of as a criminal or terrorist of any sort, just that when they call a particular number they may be talking about the whereabouts of some other person of interest.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
"I think this was added (and omitted by yourself Tom) for a very specific reason — to prevent the government from arresting/investigating without a warrant, and to ensure that no warrants could be executed that allow limitless eavesdropping."

No, I omitted it because it is not relevant. Serches and seizures which are otherwise reasonable do not require warrants.

For example, wiretapping communications with an enemy or enemy adherent while in time of war—most particularly when a terminus of the communications is overseas.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Tom in Texas also wrote:
"They claimed FISA worked fine as is, that it was not a hindrance."
And what they claimed is true. It either does not apply at all or explictly allows such wiretapping—one of the two statements is true, and only one needs to be.
"does the constitution protect you from gov’t listening to your conversation to determine whether or not you are a terrorist"
It protects you from having the government take action against you on the basis of such listening. It does not prevent it from taking action against our enemies overseas in time of war on the basis of such listening.

There, that wasn’t so hard was it?

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
"The Democrats do not oppose the surveillance of terrorists."

They do if they happen to be talking to an American, or if an adherent to the terrorists is talking to an American, and there isn’t a warrant.

What did I say right there that you think isn’t true?

YOurs, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Jon - why did you quote what is clearly a rhetorical device which has no bearing on your argument? And then you follow it up with, as noted, a non sequitor.

Addressing it regardless, what is inadequate about the current FISA law? That it doesn’t hamstring our military during intelligence gathering operations against the enemy while at war? Why don’t you address the argument that this is war and not a criminal prosecution?

Back to the previous topic: who is to say that they won’t write another inadequate law? More confusion on the law WILL result in temerity on the part of those who have the job of enforcing the law. More confusion on the law WILL result in the rise of a second wall between intelligence gatherers and those who act on that intelligence. Extrapolate it out, and you get another 9-11, but with WMD.
I find it humorous that you raise strawmen in your comments to a post on the usage of strawmen as a rhetorical device. Opponents of warrentless eavesdropping are not insisting Bush obtain a warrant before all communications with suspected terrorists — current FISA statutes specifically allow the NSA to conduct an investigation and retroactively apply for the warrant to conduct it after the investigation is completed. Rather, we want some evidence that the suspects being eavesdropped upon are actually accused of something.
It is not about expediency — the administration admitted as much when they refused to support DeWine’s proposal updating FISA in 2002. They claimed FISA worked fine as is, that it was not a hindrance.
1 - Where did I say before in my argument? Even so, your contention fails on the merits since my argument is that the volume of required research, paperwork, red tape, etc. would cripple us if the presumption is that we cannot act on the information without a warrant. The volume of required warrants would be an issue before, during and after the information was gathered. Then of course, you also must convince a judge. Why should the judiciary have a check on every individual action of the executive to execute foreign policy? This is a war, not a criminal prosecution.

2 - Of course FISA is not a hinderance as it stands. a) There are many methods the NSA/gov’t could utilize to intercept communications which by definition are excluded from FISA’s jurisdiction. b) FISA cannot encroach on the President’s Article II powers.

NED
 
Written By: NewEnglandDevil
URL: http://
"For example, wiretapping communications with an enemy or enemy adherent while in time of war—most particularly when a terminus of the communications is overseas."
Tom — surely you do not believe that all or even most communications wiretapped have an overseas terminus? Since numerous mosques, charitable foundations, and foreign agants with AQ/ Islamofascist ties all operate entirely within the US, there is no need for them to communicate overseas at all — and I think their operations are sophisticated enough to keep overseas communication to a minimum at any rate. In order for a program like this to be effective, you have to listen to purely domestic conversations. I think we have a fundamental disagreement about the purpose of this program. You seem to believe that it is soleley about discovering overseas targets. I think it is a domestic surveillance program — that its primary purpose is to prevent a domestic assault designed within our borders such as 9/11.

"It (the constitution) does not prevent it from taking action against our enemies overseas in time of war on the basis of such listening."


Again a strawman argument — I never said we cannot or should not take action overseas against those who attempt to harm us, nor did I say that information obtained from an overseas communication with terrorists shouldn’t be used — only that the Constitution protects American citizens from government surveillance without a verifiable record of why such surveillance was undertaken.
 
Written By: Tom in Texas
URL: http://
NED — the judiciary branch does not, and should not, have the power to "check on every individual action of the executive to execute foreign policy. on this side of the ocean. This is not about Bush’s ability to fight a war in Iraq. It is about fundamental constitutional liberties afforded us and whether thay apply in times of war. I do not advocate that we ignore communications with terrorist organizations — such communication is reason enough within itself for a warrant to be issued.
After all of the information that has come to light about what we knew pre 9/11, I am astounded that some still believe the problem was a lack of information. The problem is analysis of data already accumulated. Allowing the faster acquisition of data without stopping for pesky warrants only creates a further backlog of unanalyzed data. What good is that?
 
Written By: Tom in Texas
URL: http://
If this is a war, and not criminal prosecution, as you state, NED, than the US is by your definition in the midst of a civil war of longer duration than Iraq’s.
 
Written By: Tom in Texas
URL: http://
"Tom — surely you do not believe that all or even most communications wiretapped have an overseas terminus?"
Surely you don’t believe they don’t!? Oh wait, the only evidence we really have is how the briefed elected officials feel about it, and they like it.
"Since numerous mosques, charitable foundations, and foreign agants with AQ/ Islamofascist ties all operate entirely within the US, there is no need for them to communicate overseas at all — and I think their operations are sophisticated enough to keep overseas communication to a minimum at any rate."
Which is entirely irrelvant if one of the terminii is overseas, and you have presented no evidence they are, either exclusively or in large part—or even in minor fraction, domestic surevillance wiretaps. For that matter, when I call R&D in the UK, I say I’m making an overseas call, not a domestic one, and I’ve said that since long before 9/11.
"In order for a program like this to be effective, you have to listen to purely domestic conversations."
That is something you have asserted without evidence, and again, a phone call with an overseas terminus is not a doemstic cal in the common parlance, so you have hard row to hoe to say it’s a domestic surveillance program.
"I think we have a fundamental disagreement about the purpose of this program."
Absolutely we do. You seem to think its about hauling Americans to Gitmo in the middle of the night without a judge’s say so—I’m saying that just isn’t so.
"You seem to believe that it is soleley about discovering overseas targets."
No, it is about discovering intelligence concerning our enemies in this war—it is not limited to targeting info.
"I think it is a domestic surveillance program — that its primary purpose is to prevent a domestic assault designed within our borders such as 9/11."
And if that is the case, it’s still ok, as long as they don’t try to put someone in jail with either warrantless evidence or without the courts saying it’s okay...

Because the Constitution doesn’t bar warrantless wiretaps, it bars unreasnable ones; it doesn’t require warrants in all cases, it just says there has to be probably cause for them to issue.
"Again a strawman argument — I never said we cannot or should not take action overseas against those who attempt to harm us, nor did I say that information obtained from an overseas communication with terrorists shouldn’t be used"
We can’t take the action of listening if an American might be involved without a warrant, isn’t that what you’re saying? Such information can’t be used unless it is first had, so the second half of that quote is blather.
"only that the Constitution protects American citizens from government surveillance without a verifiable record of why such surveillance was undertaken"
It does not and never has prevented surveillance of our enemies in time of war, and you know there likely is a written record of why the surveillance was undertaken—I’m sure you meant something else by that. It would prevent such intelligence gathering for law enforcement purposes, and intelligence gathered for reasons of war without a warrant should be excluded from a criminal trial unless exculpatory—but that isn’t what we’re talking about.

Unless you have evidence otherwise.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
"If this is a war, and not criminal prosecution, as you state, NED, than the US is by your definition in the midst of a civil war of longer duration than Iraq’s."
Which is a whopper of a non sequitor no matter how you look at it. Also, how could it be a civil war when no group in the civil society is attempting to throw the government out and become sovereign over the territory?

Or are you claiming Moslems generally in America are trying to impose an Islamist state on us?

Maybe some, and if they do, they deserve prosecution by law—that would require warrants. Now the military/national security apparatus learning what they need to prevent an attack, that’s Constitutionally kosher.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
So, I must provide evidence to justify my claim that we need evidence to arrest Americans? Why not hold Bush to the standards you hold anonymous bloggers to?
 
Written By: Tom in Texas
URL: http://
"So, I must provide evidence to justify my claim that we need evidence to arrest Americans?"
Of course you need evidence, and all but exclusively evidence obtained by means of a warrant, to arrest an American for trial—I have never said anything else.
"Why not hold Bush to the standards you hold anonymous bloggers to?"
Two things:
1) Because it is the job of the legislature to oversee such programs, and they say it’s ok—I accept that some special access, unacknowledged programs should exist.
2) Bush hasn’t made one claim in this matter which is remotely unreasonable on the basis of the Constitution, past precedent, or known results so far. It’s the people making extraodinary claims who need to provide the evidence.

Of course, if you disapprove of the party making the call, then the Dems need to win a bunch of elections, don’t they?

;^)

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Tom Perkins, Q and O commenter, March 22, 2006:
This is not a domestic surveillance program, this is a wartime intelligence gathering program intended to thwart an unconventional enemy in wartime
Alberto Gonzalez, Attorney General of the United States of America, Testimony before a Senate Judiciary Committee, February 6, 2006:
There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force.

I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you’re possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice.
What is frustrating about people like Tom is that they know better, but they continue to spout the same lies again and again. And then they make arguments based on those lies.

Look, Tom, if the top law enforcement official in the United States says we are not at war, we are not at war. Got it?
 
Written By: mkultra
URL: http://
Lame MK...

Top cop, per your quote, said "there was not a war declaration..." not as you claim, that "we are not at war."

There are a number of military engagements for which no declaration was made - given your claim, you have to also argue that they were ipso facto not wars.

...speaking of making arguments based upon lies...
 
Written By: bains
URL: http://
A further thought, if a declaration is requsite for war, then it appears that all those outwardly lamenting that there is a civil war ongoing in Iraq must be mistaken - or lying...
 
Written By: bains
URL: http://
Top cop, per your quote, said "there was not a war declaration..." not as you claim, that "we are not at war."
The issue here is a legal one. With respect to that issue, we are either at war or we are not. There is no middle ground. Sorry Charlie.
There are a number of military engagements for which no declaration was made - given your claim, you have to also argue that they were ipso facto not wars.
I don’t have to - I want to. And during exactly how many of those non-wars did the Commander in Chief claim the power Bush is now claiming? Zero.

 
Written By: mkultra
URL: http://
A further thought, if a declaration is requsite for war, then it appears that all those outwardly lamenting that there is a civil war ongoing in Iraq must be mistaken - or lying...
I think the term "thought" here is a little generous. Um, how do I put this? Oh yes - Iraq is not governed by the US Constitution.



 
Written By: mkultra
URL: http://
"What is frustrating about people like Tom is that they know better, but they continue to spout the same lies again and again. And then they make arguments based on those lies."
At least one of the guys in the legislature who wrote the AUMF disagrees with Gonzales, and the Constitution says the legislature gets to declare what is and isn’t a war. ALso, the constitution makes no distinction between a declared war and some other state than peace, so if we’re at one or the other, we’re at war.
"Look, Tom, if the top law enforcement official in the United States says we are not at war, we are not at war. Got it?"
I love it! You can’t but comedy this good.

Now MK is granting the power to declare war to the executive branch!

Now what’s frustrating about people like MK is, it won’t have any reply to me that is on point.

For example, bains makes the perfectly true statement:
"Top cop, per your quote, said "there was not a war declaration..." not as you claim, that "we are not at war."
A perfectly true distinction.

And then MK has the gall to say.
The issue here is a legal one.
When the constitution says the legislature declares war, and they say there’s no legal difference between an AUMF and a declaration.

It’s just stupendous.
"I think the term "thought" here is a little generous. Um, how do I put this? Oh yes - Iraq is not governed by the US Constitution."
What do you care? You’re giving the executive branch the final say on when we’re at war.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
Does anyone really know what the wiretapping was actually doing?

I thought it was an extremely technical program, possibly tapping calls routed through the USA, and would be difficult to get warrants for a billion calls at a time.

I also thought that Pelosi and some other dem who WAS briefed wrote handwritten letters claiming they could not understand what the hell it meant. That means it was not the evil GOP tapping some hippy who mis-dialed Kabul.
 
Written By: Harun
URL: http://
Unless these people supporting Bush’s viewpoint are ready to accept the fact that all future presidents and presidential administrations, irregardless of Democratic or Republican, can engage in warrantless spying merely by declaring "terrorism" or "war time", with absolutely no system of checks and balances in place, do not be so ready to accept Bush’s stand on the NSA spying on Americans.
Keep in mind that Bush would set a precedent for all future executive branches.
If Bush gets his way, don’t complain when either yourself or a loved one at some point down the road gets caught up in a government surveillance sweep and subsequently prosecuted merely for innoculous actions as talking to a customer service rep in India who is actually an Al Queda operative, having a friend at work who participates in an Islamic fundamentalist organization at night, or attending in a protest at Town Hall merely to keep a harmful politically-connected chemical plant out of the neighborhood.
Get real. The Constitutional protections under the FISA and NSA constitutional protections were put in place for a reason. Is that so hard to understand?

 
Written By: The War on Terrible
URL: http://
The War On The Terrible wrote:
Unless these people supporting Bush’s viewpoint are ready to accept the fact that all future presidents and presidential administrations, irregardless of Democratic or Republican, can engage in warrantless spying merely by declaring "terrorism" or "war time", with absolutely no system of checks and balances in place, do not be so ready to accept Bush’s stand on the NSA spying on Americans.
No. You are an ignoramous.

1) Congress has to declare war, the President can’t.
2) There are already checks and balances in place on the program as it is, for example the Congressional oversight occuring.
3) Bush isn’t claiming any wartime powers the executive hasn’t already had in one form or another since 1788. Cell phones didn’t exist then, but intelligence gathering did.
Keep in mind that Bush would set a precedent for all future executive branches.
And his precedent of keeping the Congressional leaders informed is quite admirable.
If Bush gets his way, don’t complain when either yourself or a loved one at some point down the road gets caught up in a government surveillance sweep and subsequently prosecuted merely for innoculous actions as talking to a customer service rep in India who is actually an Al Queda operative, having a friend at work who participates in an Islamic fundamentalist organization at night, or attending in a protest at Town Hall merely to keep a harmful politically-connected chemical plant out of the neighborhood.
If there were one example of the intelligence developed by this program being used in trial to support the prosecution, you’d have a point. Except there isn’t and you don’t.

Oh. Innoculous is not a word.

And while it’s irrelevant to the constitutional questions you attempt to raise, wouldn’t the wiretapping be exculpatory in the case you outline?
Get real. The Constitutional protections under the FISA and NSA constitutional protections were put in place for a reason.
And the protections that are actually there are still there, they just never were what you want them to be.
Is that so hard to understand?
Yeah. It is.

During a declared war, the President can surveil the enemy and inadvertent domestic contactees without a warrant provided the intelligence developed is not used to support the criminal prosecution of US persons.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
It is about fundamental constitutional liberties afforded us and whether thay apply in times of war.
FISA only covers US persons. Therefore, FISA does not cover anyone illegally in the US. FISA also explicitly excludes foreign agents or those acting for foreign powers, which would include any agent of al-Qaeda. Even so, when there was doubt as to the status of the person, DOJ got the required warrants prior to continuing their surveillance.

So none of your constitutional liberties were infringed on. Happy?
such communication is reason enough within itself for a warrant to be issued.
Not according to the courts issuing the warrants. They look for things like probable cause, since its perfectly reasonable to assume that OBL was just ordering a pizza to be fedexed over. And if you’ve ever had pizza in tora bora, you’ll understand exactly why he had to do it...
After all of the information that has come to light about what we knew pre 9/11, I am astounded that some still believe the problem was a lack of information. The problem is analysis of data already accumulated. Allowing the faster acquisition of data without stopping for pesky warrants only creates a further backlog of unanalyzed data. What good is that?
The problem is that now that we have access to the information, it is your explicit desire to make it as difficult as possible to get. It was also the increased beaurocracy associated with Jamie Gorelick and the wall, along with all those lawyers reviewing every move DIA/SpecOps/Able Danger and preventing the dispersion of information to those who could have acted on it - but you want to put all those restrictions right back in place.
If this is a war, and not criminal prosecution, as you state, NED, than the US is by your definition in the midst of a civil war of longer duration than Iraq’s.
What the hell are you talking about? The courts ruled explicitly that domestic terrorism is the purview of DOJ/FBI, and is constitutionally constrained - but stated that foreign terrorism/foreign agents fall under the President’s war powers. As for these terrorists, we’ve been at war with Islamic Fundamentalism/fascism since 1979. The fact that we were somewhat oblivious to it is understandable. We had bigger caviar to fry.
What is frustrating about people like Tom is that they know better, but they continue to spout the same lies again and again. And then they make arguments based on those lies.

Look, Tom, if the top law enforcement official in the United States says we are not at war, we are not at war. Got it?
FWIW - the top cop actually made the case before the Supreme’s that the AUMF is a de facto declaration of war, and they agreed with him. I don’t even think there was a declaration of war in the first gulf war, and I know there wasn’t one for Vietnam or Korea, but in every case before the courts, they’ve treated these actions as wars.
Does anyone really know what the wiretapping was actually doing?

I thought it was an extremely technical program, possibly tapping calls routed through the USA, and would be difficult to get warrants for a billion calls at a time.
Probably not on this board - but why don’t I venture a guess. For instance, FISA specifically exempts any device for intelligence gathering which is OUTSIDE the USA (50 states + territories, eg Guam, PR, etc.). I bet the NSA has a chip (or board) in every communications satellite (at least those put up by the US) that has a neat little algorithm in it that re-routes some number of calls that match the requirements of the algorithm to a switch in, say, the UK, where the signal is recorded for analysis before going trans-atlantic into the states. They could put listening devices on the transatlantic/transpacific cables as well - we did it to the Russkies on their underwater land lines in their northern waters. Just remember, anything outside the US (and space, or 3 miles off-shore IIRC is outside the US) is exempted by FISA.

I’m just sayin’...

NED
 
Written By: NewEnglandDevil
URL: http://
Off topic and a pet peeve...

...Irregardless...

Dont you mean disirregardlessly?

For all intensive purposes, eventhough its a mute point, I’ve a tough road to hoe.

Or as Charles Schultz once wrote, "Sir, your a nidiot and an incompoop!"
 
Written By: bains
URL: http://
I will add to Tom’s excellent response to The War on Terrible:

Bush could have followed the precedents of Abraham Lincoln and revoked habeus corpus, or he could have followed the precendent of FDR and monitored EVERY SINGLE OVERSEAS COMMUNICATION - gasp - without warrants! (neither were found unconstitutional)

Except he didn’t do all that. He found an effective way of monitoring the enemy that did not break the law or infringe on our constitutional protections. He kept the leaders in congress informed - voluntarily. And he rounded up terror cells in the US.

All in all, not too shabby.

NED
 
Written By: NewEnglandDevil
URL: http://
This debate has become so nonsensical that it is difficult to gin up the energy it takes to participate. Nonetheless, here goes. No one knows the facts regarding how many wiretaps occurred, who was surveilled, the quantum of evidence supporting the decision to conduct the surveillance, etc. On the other hand, we do know the law and it doesn’t support the Democrats’ position (i.e. that it is "illegal", Bush exceeded his Consitutional authority, he should be impeached, etc.)* Given that Democrats haven’t let their ignorance stop them from making those accusations, it’s laughable when anyone complains about straw man arguments by Bush.

The Democrats have politicized this from the beginning and another Congressional investigation in an election year won’t accomplish anything. Instead, I have good idea. How about letting the courts decide whether a law is broken? The only problem for Bush haters is that the relevant Court has already answered that question. The FISA Court of review (i.e. the FISA appellate court) has already held,
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
And yes, I know they weren’t reviewing the NSA program. However, that ruling clearly delineates the President’s Consitutional authority which trumps FISA and directly pertains to this issue. The NSA program isn’t illegal, it is intended to fight terrorism and, by making a political issue out of it and calling for Bush’s impeachment during wartime, in addition to falsely claiming that this legal program is illegal, Democrats are undermining the ability of our intelligence agencies to do their job.

The Democrats also lied when they tried to pretend they hadn’t been told about the program. Even James Risen admits that
"In 2002....top congressional leaders from both political parties were brought to Vice President Dick Cheney’s White House office and were briefed about [the program] by Cheney, Hayden, and then-CIA director George Tenet."
And save the nonsense about how it was only the leadership without staffers. The leaders of the Democratic party and the intelligence committees were briefed about the program and never said boo (except for a wishy washy CYA letter from Rockefeller who never actually did anything to stop it) until the NY Times printed its book promotion/front page story.

Does anyone seriously believe that false accusations about Bush "lies" and "illegal" spying don’t undermine his ability to conduct the war on terror? Did you see David Gregory’s question the other day on the Today Show about no one believing the Bush Administration anymore? To the extent that is true, it’s mostly because of nonsense like this. Bush haters can try to pretend that isn’t the case, but it is. Democrats have chosen to undermine the President and his terrorist surveillance program with false allegations for political gain. It is entirely reasonable to say that they don’t want to surveil terrorists because their actions speak louder than words.


*Here is a good general discussion of the Constitutional issues involved written by liberal law professor, Cass Sunstein(and yes he admits he is a liberal). Here is an analysis from a conserative/libertarian law professor, Orin Kerr. Here is another dissertation by Jon’s favorite Harvard educated lawyer.
 
Written By: jt007
URL: http://
At least one of the guys in the legislature who wrote the AUMF disagrees with Gonzales, and the Constitution says the legislature gets to declare what is and isn’t a war. ALso, the constitution makes no distinction between a declared war and some other state than peace, so if we’re at one or the other, we’re at war.
Right, Tom. Right. I and heard the guy who brought them lunch thought AUMF was a war declaration too.

Look, I have addressed the issue of whether AUMF is a declaration of war many times. Simple statutory analysis based on the text of AUMF and the inccrrectly titled War Powers Act shows Congress didn’t declare war. No serious person buys this argument anymore.

Even Gonzalez doesn’t buy it. No, he does not have the final word. But I guess until every single person in the universe agrees with him, there is still a controversy for the true dead-enders. Keep up the fight Tom. You are still making the argument even Bush has abandoned. Loyal to a fault.
When the constitution says the legislature declares war, and they say there’s no legal difference between an AUMF and a declaration.
You have not once articulated the argument, Tom. What language in AUMF declares war? And why is Gonzalez wrong? And why in AUMF did Congress suspend the reporting requirement under the War Powers Act under the provision in the WPA allowing such a suspension when a use of force is authorized, instead of referring to the provision in the WPA that allows such a suspension when war is declared? Why Tom? Why?

 
Written By: mkultra
URL: http://
More proof that the libs are still terrorist coddlers as they have been since the hostage abandoning "peanut farmer" days!~
 
Written By: Neal
URL: http://
Mr. Henke makes a point: "The fact is that some are charging the administration with breaking the law, while the administration is making an argument that it did not — and, most importantly, the relevant decision-making bodies (House and Senate) are divided on those questions."

This argument can be applied to most any subject. There is no requirement that it be reasonable or plausible or even supported by evidence. What is the evidence on this issue? Why, the New York Times had an article on it and one of the reporters had a book. When did the reporting at the New York Times become so unassailable? Other evidence? Uh, didn’t the Washington Post report that the Times reported?

The standard proposed by Mr. Henke would require court involvement in any situation where "...some are charging the administration with breaking the law..." Vote fraud in Ohio, anyone?

And why the sudden belief in the omniscience of the court? Have there not been numerous demostrations of the court’s errors, both in reversals of prior decisions and in criticism of specific recent decisions such as KELO?

Mr. Henke wants a special enemies exemption to the conduct of hostilities: Any enemy of the United States who places any two-or-more party call, provided any one party shall be physically located in the United States, shall require the United States to obtain a civil warrant prior to listening to such call under the civil procedures for warrants then in effect.

If Mr. Henke would simply make the case that it is improper for the United States defense effort to attempt to monitor and intercept the declared enemy’s communications he might be more credible. As it is, he is left sniveling that he is offended because "...some are charging..." based on a newspaper article decidedly lacking in concrete facts. And a civil procedure identifying the facts would be fatal to the program. Brilliant.
 
Written By: Tee Jay
URL: http://
Tom clearly is operating from his own unique set of definitions. For example, he seems to think that "domestic surveillance" means "calls wherein both participants are within the United States" — which is simply incorrect and at direct variance with the language of FISA. Also...
During a declared war, the President can surveil the enemy and inadvertent domestic contactees
What makes you think the surveillance of US Persons was "inadvertent"?
 
Written By: Jon Henke
URL: http://www.QandO.net
Bravo bains -
Off topic and a pet peeve...

...Irregardless...

Dont you mean disirregardlessly?

For all intensive purposes, eventhough its a mute point, I’ve a tough road to hoe.

Or as Charles Schultz once wrote, "Sir, your a nidiot and an incompoop!"
But I could care less ;-)
 
Written By: meagain
URL: http://
As a general proposition, all three branches of government will attempt to maximize their powers at the expense of the other branches. This is a conflict anticipated by Madison, it’s why checks and balances are built in to the structure of the constitution.

It’s only natural that the Commander in Chief will attempt to justify his actions as falling under his inherent military powers. Or even rely on the Authorization to Use Military Force as a justification.

It’s also only natural that the Congress would attempt to circumscribe the power of the President by passage of laws or appropriations. Oddly enough, it’s one of the few times Congress, as a body, adopts the philosophy of strict construction.

The Court is left as a referee. But to an extent they are bound by their own precedent about not getting entangled in "political questions". (See the court cases over the War Powers Act for a review of how the USSC "dances a little sidestep" as they sang in the Greatest Little Whorehouse in Texas.)

There is a limited set of people on both sides with actual knowledge of the facts of this issue. The President and his subordinates, the Congressional members of the Intel Committees, the leaders of the House and Senate. And from what I read there are judges on the FISA court who may not know all the details of the program(s) but think they know enough to make rulings on the techniques.

The rest of us are actually worse off than the blind men describing an elephant. Because we are dependent on other blind men to describe what they think they are feeling. A round of Telephone anyone?

As an aside, I automatically discount anything said or proposed by the junior Senator from West Virginia. If you haven’t read his mealy mouthed CYA memo for record you should. Not to mention that his office published a strategy memo outlining how the Democrats could use the resources of the Intel Cmte to tie the administration in knots. In the midst of an international war against terrorists. That’s downright unpatriotic.

The problem with an investigation is that Senators and Congressmen don’t do any actual work. All the research and questioning is prepared by the staff. If this program is as valuable as the legislators on the Intel Cmtes say it is, why would you want a bunch of staffers poking around and risk possible unintended disclosures? I might be amenable to a select group of trusted former officials. People like Sam Nunn, Cap Weinberger, Zbig Brezinski and Henry THE K "investigating" and preparing a secret report for Congress. Assuming they have the time and inclination to do the actual work and not require a bunch of other staff to do the leg work.

Why haven’t people like Jane Harmon and Chuck Hagel proposed modifications to FISA that would bring the practices into compliance? Either it is "too close to call", meaning it depends on how one interpets the FISA statue or it could be that making modifications to the current law would in and of itself reveal sensitive information about the program(s). In the first case, maybe Congress is content with continuing oversight. More briefings, more reports that kind of check and balance. If the second case, then these legislators have made a judgement that the value of the program outweighs the potential risk of violating someone’s civil right to privacy. In that case I would actually applaud them, because in theory we pay them the big bucks to make those hard decisions.

One other piece of information you might be interested in. Byron York has an article at National Review discussing IN RE: Sealed Case. The only case ever argued and decided before the FISA Court’s appellate function.

http://www.nationalreview.com/york/york200603150741.asp

It’s a different take on this issue that rings pretty true.
 
Written By: Steve
URL: http://
I would like to respond to the ignoramus Tom Perkins above.
Bush did NOT keep Congress of his warrantless spying informed. That is a conservative spin point repeatedly debunked in the media. Do your research beyond listening to Rush Limbaugh or Mark Levin.
Sen. John D. Rockefeller IV. Rep. Peter Hoekstra, a Republican, and former Sen. Bob Graham ranking members of the Senate Intelligence Committee have all gone on record as saying they were not fully briefed or given written reports as required under the NSA Act of 1947. In fact, Rockefeller released a July 2003 letter raising objections to the spying program for those very reasons as he was not provided any details or the required written reports on the spying.

You said also "Congress must declare War." That is correct, but as it was pointed out in hearings on the NSA spying earlier this year, who is to say when the current "war" we are in will end. The FISA law makes it very clear that the law necessitating warrants on ANY spying occuring in the U.S. are to be in effect during wartime. Research the bipartisan Congressional Review Office decision on the NSA spying issue released in early January for proof. I would provide the link but I am tired of doing homework for lazy misinformed conservatives at home with any propaganda spewed out by the Bush Administration and its advocates.

The FSA and NSA laws were indeed, as I stated accurately the first time, were put in place to address what Congress which passed the laws determined were issues needing clarification in the U.S. Constitution. The FISA laws were put in place to curb another Nixon-style abuse that the current NSA and U.S. Constitution were not able to stop. The issue had not already been decided as far as Executive powers as you would like to pretend.
DO YOUR HOMEWORK.



 
Written By: The War on Terrible
URL: http://
"Bush did NOT keep Congress of his warrantless spying informed."
Special Access Unacknowledged programs are ones of which only the majority and minority party leaders are informed of, and sometimes also the committee chairman of the cmte. involved. If you have evidence this did not occur here when Gonzales was meeting with them about once a month, let us know. In fact let the NYT know. They’d love to have something against Bush they can corroborate—you wouldn’t lie to us right?
"That is a conservative spin point repeatedly debunked in the media."
Prove it hotdog.
"Do your research beyond listening to Rush Limbaugh or Mark Levin."
I don’t listen to Limbaugh and I don’t know who Levin is.
"Sen. John D. Rockefeller IV. Rep. Peter Hoekstra, a Republican, and former Sen. Bob Graham ranking members of the Senate Intelligence Committee have all gone on record as saying they were not fully briefed or given written reports as required under the NSA Act of 1947."
Are they the ranking minority and majority leaders? Are they the chairman of the cmte involved?
"In fact, Rockefeller released a July 2003 letter raising objections to the spying program for those very reasons as he was not provided any details or the required written reports on the spying."
Rockefeller did not rate the information he wanted. He also said he didn’t understand the information he had, so giving it to him would have been pointless anyway.
"You said also "Congress must declare War." That is correct, but as it was pointed out in hearings on the NSA spying earlier this year, who is to say when the current "war" we are in will end."
The Congress, in particular the Senate if there is a peace treaty to be signed with any nation.
"The FISA law makes it very clear that the law necessitating warrants on ANY spying occuring in the U.S. are to be in effect during wartime."
It also permits those requirement to be voided by statute, and AUMF have always counted as such in the past, hence the AUMF or some other statute referencing it would have had to specifically perserve FISA for it to even theoretically apply.
"Research the bipartisan Congressional Review Office decision on the NSA spying issue released in early January for proof.

I would provide the link but I am tired of doing homework for lazy misinformed conservatives at home with any propaganda spewed out by the Bush Administration and its advocates."
This page seems like good place to start.

Do you mean this link:

With this passage:
“However, it is recognized that in extremely rare circumstances a need to preserve essential
secrecy may result in a decision not to impart certain sensitive aspects of operations or collection
programs to the oversight committees in order to protect extremely sensitive intelligence sources and
methods.17 [emphasis added]”
Justiifed by this footnote.
S.Rept. No. 96-730, 17 96th Congress, 2nd sess., p. 6 (1980).
Or

This Document

Which claims AUMFs do not void the warrant reuirements of FISA, but also does not recognize the nondomestic nature of much of the wiretaps of the program in that a terminus was not in the US. It also fails to note the loophole existing in the "substantial" and "one year" clauses. Neither does it address the historical precedents involved nor how the courts including the Supreme Court has upheld them in favor of the executive, ei. Truong.

It is also neither surprising nor dispositive that a "review" organ of one branch of the government would disparage the powers of another branch. Go figure that.

Lets look at this link

It doesn’t claim anything to be proved in either direction, so I’m sure you meant another one.

But it does call authoritative this little passage:
1. When the President acts pursuant to an express or implied authorization of Congress,
his authority is at its maximum, for it includes all that he possesses in his own right plus
all that Congress can delegate. . . . A seizure executed by the President pursuant to an
Act of Congress would be supported by the strongest of presumptions and the widest
latitude of judicial interpretation, and the burden of persuasion would rest heavily upon
any who might attack it.
So there would be a burden on the Congress to state that unlike previous declarations of war and AUMF’s, this AUMF did not void FISA and like statutes and therefore the President was not authorized to treat this war as past President’s have treated all other wars with respect to intelligence gathering.

Also it has this little gem:
"Congress has asserted itself with respect to domestic surveillance, but
has largely left matters involving overseas surveillance to executive self-regulation, subject
to congressional oversight and willingness to provide funds."
I assert you will not find amny people agreeing that communications with a foreign terminus are domestic intelligence.

And this is just a howler:
"While the collection of intelligence is also an important facet of fighting a battle, it is
not clear that the collection of intelligence constitutes a use of force."
This would be an astonishment to all but the most partisanly Democratic members of the uniformed military and the national security organizations who have been engaging in intelligence gathering for these several hundred years.

You want me to take these people seriously?

This one doesn’t seem to help at all.

"The FSA and NSA laws were indeed, as I stated accurately the first time, were put in place to address what Congress which passed the laws determined were issues needing clarification in the U.S. Constitution. The FISA laws were put in place to curb another Nixon-style abuse that the current NSA and U.S. Constitution were not able to stop. The issue had not already been decided as far as Executive powers as you would like to pretend.
DO YOUR HOMEWORK."
Well, you haven’t done your homework. The context which you—with breathtaking reductivism—refer to as Nixon-style abuse was something worthy of statutes with teeth, hence the penalty clauses in the FISA. However, the overall context was of the intelligence services of the national government being used to further the domestic law enforcement goals and in some cases the political goals of memebers of the executive branch.

Nothing like that is even alleged to have happened here, hence even if the NSA wiretapping did violate the letter of FISA, it cannot be said that it violated the spirit as you just contended. Also, again, since all previous Presidents have asserted—or since it is so commonsensical, they have not needed to assert it—have surveilled our enemies foreign and domestic in wartime without warrants, then now that we are at war, FISA is implicitly superceded.

President Bush is blessed with a host of unintelligent opponents, you are among them.

Please feel free to go ahead and post a link to the "CRO" reports you feel is conclusive.

Let’s see how it stacks up.

You pi$$ant.

Yours, TDP, ml, msl, & pfpp
 
Written By: Tom Perkins
URL: http://
The CRO report, IN PROPER AND FULL CONTEXT, concluded with no ambiguity that NO COURT has EVER ruled on the constitutionality or legality of the power of the executive branch verses the FISA court in war time or any other time.*
So why are you so positive Bush is right? Gonzalez has his own ass to protect. You might recall that the Bush Administration itself REJECTED AS UNCONSTITUTIONAL an initial proposal from Senator DeWine in 2003 that would have changed the FISA laws to accomodate its’ spying activities.
Bush himself had a problem with the constitutionality of the spying program he now insists is constitutional and lawful.
Stop being a historical revisionist.]
As for the CRO, it stands the best objective information available on the matter. The CRO is the most referenced resource for congress and lawyers in Washington and across the country.
Where conservatives like to point out a few court decisions supporting their biases, The CRO is a summary of all those decisions and ALL OTHERS in the entire history of the court docket addressing FISA and NSA laws in the context of spying and warrantless searches on Americans.
Although, bipartisan constitutional scholars have nonetheless found a problem with Bush’s warrantless spying, my argument is the entire matter warrants further investigation.
But conservatives like yourself as the case of SOME but not all the Republicans in control of Congress want to brush the entire matter under the rug while feeling safe, smug and confident in Bush’s representations that the spying did not go beyond terrorism.
Damn the convincing, contrary evidences presented in a series of reports in the New York Times and The Washington Post you’d rather write off as some sort of paranoid Liberal conspiracy (although I’m sure you didn’t have a problem when these same publications did investigative series on the Clintons surrounding the Whitewater case), which found the spying was on thousands of Americans each month and dredged up thousands of leads the FBI declared as irrelevant to terrorism, a waste of time and resources that could be put to better use on other areas in fighting terrorism.

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/04/AR2006020401373.html

http://www.nytimes.com/2006/01/17/politics/17spy.html?ex=1295154000&en=f3247cd88fa84898&ei=5090&partner=rssuserland&emc=rss&pagewanted=print

* Here are the undisputed conclusions of the CRO report. Pay special attention to the summary conclusions at the end.
http://www.fas.org/sgp/crs/intel/m010506.pdf


1. "The Supreme Court has stated Congress does indeed have the power to regulate domestic surveillance," even in wartime.
2. The FISA law necessitating that the president obtain a warrant for any surveillance within the U.S. was designed to be effective even in war time.
3. Bush’s legal justifications for warrantless domestic spying relied on flimsy legal arguments.
4. "Even assuming the president’s role as commander in chief in the Armed Forces is implicated in the field of foreign intelligence, it should not be accepted as a foregone conclusion Congress has no role to play."
And the most telling comment:
5. "While the courts have generally accepted that a president has the power to conduct domestic surveillance within the U.S. inside of confines of Fourth Amendment, no court has held squarely that the Constitution disables the congress from endeavoring to set limits on that power."

The only time we find these unambigious conclusions questioned is when sections of the report are quoted out of context by Bushie apologists.


 
Written By: the war on terrible
URL: http://
A few more comments.
Senators, Rockefeller, Hoekstra and Graham all said they were all more than entitled as Intelligence Committee members to have received briefings from Bush.
This has not been a subject of debate except from conservatives who try to spin the facts. If you don’t trust my research look it up for yourself. When I have time later I will provide the links, if you are truely interested.
The news stories referenced above do make allegations of an abusive spying program that could very well infringe upon the U.S. Constitutional rights of citizens against government unlawful searches and seizures, in which courts have clearly incorporated to encompass wiretapping and surveillance.
All should be concerned about a president that breaks the law and sets a precedent for future executive branches.

Your only argument appears to be "where is the finite proof" in rejection of the evidences that are available.
Feingold is right to bring the censure motion to open the door to further investigation.
You may recall a well-publicized news story in February about a federal judge hearing a lawsuit brought by several civil rights groups who also questioned the legality of the warrantless spying program. The judge ruled the plaintiffs had more than enough evidence to allow the case to go forward. The judge also disallowed the Bush Administration’s attempts to continue blocking the plaintiff’s efforts to investigate the program.
(Oh, I know, the judge is part of the media’s paranoid Liberal conspiracy against Bush. Right).
 
Written By: the war on terrible
URL: http://
You might recall that the Bush Administration itself REJECTED AS UNCONSTITUTIONAL an initial proposal from Senator DeWine in 2003 that would have changed the FISA laws to accomodate its’ spying activities.
Bush himself had a problem with the constitutionality of the spying program he now insists is constitutional and lawful.
When you make statements this stupid it is necessary to point it out for special notice simply because I’m not going to waste my time arguing with someone who is incapable of making a logical argument; thus, I’m not going to address any other statements in your post until you learn from your logical fallacy.

I’m spelling out your mistake so you can learn from it.

Senator DeWine made a PROPOSAL to CHANGE the FISA laws.

Bush rejected THE CHANGE as unconstitutional.

There was NEVER a suggestion by the Bush administration that the EXISTING PROGRAM was either illegal or unconstitutional.

I’ll start reading the rest of your (presumed) crap once I see the mea culpa.

NED
 
Written By: NewEnglandDevil
URL: http://
"When you make statements this stupid it is necessary to point it out for special notice simply because I’m not going to waste my time arguing with someone who is incapable of making a logical argument; thus, I’m not going to address any other statements in your post until you learn from your logical fallacy."

Hey, you stupid moron, watch whom you’re talking to. My argument was ABSOLUTELY right the first time.
Your attempted counter-argument on the other hand is wrong and completely devoid of any logic.

DeWine introduced the legislation on June 20, 2002, which sought "to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion," according to the legislation.

In other words, the legislation would have lowered the FISA warrants standard for spying on non-U.S. citizens to reasonable suspicion from probable causes.

The Bush Administration Justice Department issued a statement opposing the bill over concerns that the proposed change might "not pass constitutional muster." It expressed doubt that any change was necessary: "It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require," the department wrote.

The statement clearly indicates the Bush Administration’s DOJ was concerned it may be unconstitutional to eavesdrop with a lower standard of proof than probable cause on NON U.S. CITIZENS.
As the reported evidences show (see links in my post above), The Bush Administration was already applying a lower standard than probable cause, reasonable suspicion, for warrantless spying on not only non-U.S. citizens, but U.S. CITIZENS, or citizens and legal residents entitled to the fullest protections under the U.S. Constitution.

This is the same lowered standard the Bush DOJ earlier wrote would be "not pass constitutional muster."

 
Written By: the war on terrible
URL: http://
No, your argument was wrong the first time, and it continues to be wrong.

Your argument is built on fallacies.

One of the fallacies is your belief that all searches require warrants.

That is not true. It is not true of our law-enforcement officials in investigating crimes. It has never been true of our intelligence gathering officials, who gather intelligence for the prosecution of war.
The statement clearly indicates the Bush Administration’s DOJ was concerned it may be unconstitutional to eavesdrop with a lower standard of proof than probable cause on NON U.S. CITIZENS.
No, actually the statement indicates that they were concerned that warrants would be issued based on reasonable suspicion instead of probable cause - which goes directly against the language in the fourth amendment.

You jumped to a conclusion. Another fallacy.

Furthermore, I wonder what else was in the DeWine proposal? Perhaps a requirement that EVERY surveillance be executed with a warrant? That would be unconstitutional as well, as it would infringe on the executive’s authority.

In any case, you’ve got to quit jumping to conclusions and recognize that these are legal constitutional arguments - not policy differences. It is legal and constitutional for warrantless searches to occur in law enforcement under certain circumstances. It is always legal and constitutional for foreign intelligence surveillance to occur without warrants.

Where a foreign intelligence surveillance provides actionable data against a US person who is to be prosecuted criminally, it is at that point that FISA and the laws attendant to criminal prosecutions come into play.

A final fallacy is one of worldview, IMO. You insist that we prosecute in the manner attendant with criminal action. That’s a pre-9/11 strategy. We’re fighting a war now, and in war, you don’t need warrants, ever.
watch whom you’re talking to.
I love it when people make threats over the internet. Aren’t you supposed to be against violence?

I do retract my statement that you are incapable of making a logical argument. (Although I haven’t seen it demonstrated yet... then again, I still haven’t read the rest of your (presumed) crap.)

NED
 
Written By: NewEnglandDevil
URL: http://
"One of the fallacies is your belief that all searches require warrants."

"A final fallacy is one of worldview, IMO. You insist that we prosecute in the manner attendant with criminal action. That’s a pre-9/11 strategy. We’re fighting a war now, and in war, you don’t need warrants, ever."

These arguments are wrong at the very core. Especially your second statement above about "pre-911 strategy" bullsh.. If your arguments were popularly accepted and had any merit, there would be no need for this debate.
You are obviously set in your wrong ways and unable to change. There’s no point for me in continuing this discussion.
I will leave you with this: Statement No. 2 is completely debunked in the CRO decision I referenced and provided a link above. Review.

Sorry, but I place my faith in the findings of the CRO, above and beyond a conservative blindly accepting the Bush Administration’s arguments.
 
Written By: the war on terrible
URL: http://
I place my faith
That is absolutely true. To you, this is faith, because you don’t have the facts to back up your positions.

Warrants are not required in every search of a person, or every search of a place. That is a fact. It’s a fact you don’t like, so you revert to your faith.

The courts have determined, over and over again, and as recently as 2002 that an AUMF constitutes a war. Again, you don’t like that fact, so you revert to your faith.

I notice you conceded the second fallacy.

Good day sir, and I’m glad I didn’t waste any more time reading the rest of your crap.

NED
 
Written By: NewEnglandDevil
URL: http://
If your arguments were popularly accepted and had any merit, there would be no need for this debate.
Actually, my arguments are popularly accepted. That’s the reason that there are ZERO Dem legislators saying we need to end the program immediately because it is infringing on people’s rights right now.
You are obviously set in your wrong ways and unable to change. There’s no point for me in continuing this discussion.
Interesting pov. George W. Bush CHANGED the way we fight terrorism. You REJECT THE CHANGE, but say that I am set in my ways and unable to change. Projection?
Sorry, but I place my faith in the findings of the CRO, above and beyond a conservative blindly accepting the Bush Administration’s arguments.
No, you place your FAITH in anything that doesn’t conflict with your worldview. You probably place your FAITH in all kinds of websites showing Haliburton/Cheney conspiracy theories, how GWB is both a dunce and an evil genius.

Meanwhile, I’ve taken the time to read pundits on both the left and the right, including left-leaning (liberal) law professors who believe that the President’s program is both legal and constitutional. I’ve done my best to read court opinions on matters relating to AUMF vs. war, FISA, national security searches, and the executive powers enumerated in the Constitution.

I don’t blindly accept the Bush Administration’s arguments on anything, which is why I disagree with the Bush Admin on some issues. This is not one of them.

NED
 
Written By: NewEnglandDevil
URL: http://

 
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