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Because I’m a Judge, and I Say So!
Posted by: Dale Franks on Saturday, August 19, 2006

The editors of the Washington Post aren't impressed by the "judicial reasoning" that US District Judge Anna Diggs Taylor used to strike down the NSA surveillance program.
Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. The NSA's program, about which many facts are still undisclosed, exists at the nexus of inherent presidential powers, laws purporting to constrict those powers, the constitutional right of the people to be free from unreasonable surveillance, and a broad congressional authorization to use force against al-Qaeda. That authorization, the administration argues, permits the wiretapping notwithstanding existing federal surveillance law; inherent presidential powers, it suggests, allow it to conduct foreign intelligence surveillance on its own authority. You don't have to accept either contention to acknowledge that these are complicated, difficult issues. Judge Taylor devotes a scant few pages to dismissing them, without even discussing key precedents.

The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality.
National Review's Mark Levin is even more outraged, naturally.
Over the years federal appellate courts have recognized the president's inherit constitutional authority to protect our nation from foreign threats against our national security without the requirement of warrants. For those who care, here are some relevant cases:

United States v. Truong, 629 F.2d 908 (4th Cir. 1980); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974) (en banc); United States v. Brown, 484 F.2d 418 (5th Cir. 1973).
Judge Taylor's angry dicta aside, past courts have been fairly careful when treading on the president's national security powers. Courts have generally recognized that the judicial system is not the best place to make determinations about how to fight and win wars, or how to deal with enemy espionage during a conflict. When they do weigh in, they generally rely heavily on precedent and clear legal reasoning, something Judge Taylor felt was mostly unnecessary in the case, evidently.

One would've hoped that Judge Taylor, knowing that this is a case with serious political and national security ramifications, would issue a closely reasoned opinion, rather than giving rein to personal outrage.

Frankly, we still don't know enough about the NSA surveillance program to determine whether or not it is illegal, or violates the constitution. Even the Congressional Research Service can't say for sure, concluding:
Whether an NSA activity is permissible under the Fourth Amendment and the statutory scheme outlined above is impossible to determine without an understanding of the specific facts involved and the nature of the President’s authorization, which are for the most part classified.
Although, having said that, they don't like the president's arguments much. Not surprising, since they are Congress' pet lawyers, not the president's (who do like the arguments.

This is clearly a case where Congress should investigate (in an in camera proceeding obviously) exactly what the NSA program does, whether FISA applies to the program, why the administration felt the FISA process was too cumbersome to use in some fast-moving intelligence operations, and what changes to FISA may be necessary.

Opponents of the NSA program have already decided that the program violates both the Constitution and FISA. That is an opinion, but it isn't an established fact, no matter how strongly the holder of the opinion believes it.

First, the NSA program probably is Constitutional. Despite what many people think, there is no blanket requirement for search warrants. There is a constitutional ban on "unreasonable" searches, not a universal requirement for search warrants. Today, there are a number of cases where a warrantless search is completely reasonable, even in criminal cases, where 4th Amendment cases receive the highest scrutiny. War powers come into the picture here, too. If the president has the power to kill foreigners, then it defies belief to assume that he can't listen to their phone conversations. Although, the HAMDAN decision might call the "war powers" assertion into question.

As to whether it violates FISA, well, that's a tougher call. FISA requires a warrant for domestic surveillance. FISA does not, however, apply to foreign surveillance. If, as the administration alleges, the communications being monitored goes to foreigners, then the cross-border call falls into a somewhat murky area. It's even more murky if the person being listened to on the US side is not a citizen or resident alien, in which case he isn't a US person under the meaning of the act, so it's arguable that FISA doesn't apply—at least, not fully.

And no matter what the circumstances, does the president have powers that FISA can't restrict? The FISA court of review itself, in reviewing TRUONG, wrote, "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 it for granted that the President does have that authority."

I suspect it's going to take a court with a much more rigorous standard of review than Judge Taylor's, and more information about the program itself, to answer those questions.

Speaking of rigorous analysis, over at Volokh Conspiracy, Orin Kerr, Dale Carpenter, and Eugene Volokh subject the opinion to some strict scrutiny themselves. they don't seem to be impressed either.
 
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Dale:

It is debatable whether the NSA spying program violates the Fouth Amendment. It does, however, violate FISA. Just read what the law says. The non-applicability argument you make is frivolous and has not even been seriously suggested by the DOJ or the Adminsitration’s supporters. For domestic spying defenders, the primary statutory defense has been AUMF authorization, but that, as well as the "inherent authority" justification, were weak to begin with and have been eviscerated by the Supreme Court’s Hamdan and Hamzi decisions. Still, as you say:
That is an opinion, but it isn’t an established fact, no matter how strongly the holder of the opinion believes it.
But it is only an "opinion" and not "an established fact" because the Bush Adminstration has desperately dodged judicial review. Why? Because DOJ knows the domestic spying program violates FISA.

You might think about this: FISA is a statute that ensures civil rights. It proscribes criminal penalities for violations. The domestic spying program violates FISA. Therefore, the Bush Administration has been committing criminal violations of a civil rights statute for five years (and counting). How does that sit with libertarian thinkers?

As for the Judge Taylor’s opinion, all I can say is that I guess they don’t have law clerks in Michigan. But it doesn’t really matter. The Judge may have developed a factual record that deserved some deference, but I doubt it would have amounted to much. The Sixth Circuit and the Supreme Court will make their own decisions on the merits. Unless, that is, the Bush Adminsitration succeeds in getting the case dismissed on technical grounds like standing. Which is precisely their strategy, just so they can continue to claim that it is only an "opinion" and not "an established fact" that they are committing countless criminal civil rights violations. "Plausible deniability" I think it was called in the Nixon White House.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
"The domestic spying program violates FISA. Therefore, the Bush Administration has been committing criminal violations of a civil rights statute for five years (and counting)."
Do you realize how ridiculous you look? I don’t know your specific motives for making accusations that our president has committed a crime, but somehow I don’t think that they are solely a concern for our civil rights. With all of the political hay to be made from the discovery, doesn’t it matter at all to you that not one (I’ll repeat because you seem to be deaf and blind to this fact) NOT ONE PERSON HAS BEEN FOUND (after what must be the biggest search since "The Fugitive") who has been harmed by the NSA program. THAT is why the ACLU had to forum-shop for that joke of a judge to pursue their agenda. THAT is why you are left with posting your opinion that our president is a crook, and nothing more.
Maybe your opinion is correct. Until some harm can be shown from the President’s approval of the program, I think that spending time and resources on this political witch hunt is inappropriate.


 
Written By: Robert Fulton
URL: http://
You might think about this: FISA is a statute that ensures civil rights.
Ooooo, it’s the GG defense:

"I said civil rights, so you must immediately shut up or be pronounced unserious, frivolous, and or a fascist bastard. It doesn’t matter if my arguments are based on incomplete facts or whether there may be compelling competing interests in this particular case. Nooooo, I have utilized the sacred totemic words "civil rights," therefore your petty opinions and legalities mean nothing."
 
Written By: Terry
URL: http://
Mr. Fulton:

I think it matters whether the president — this president or any other — commits crimes. I believe — and advocated vociferously at the time — that President Clinton should be impeached for his perjury. The fact that there have been no identified "victims" of the Bush Administration’s crimes is both irrelevant and misleading. The crime is complete when FISA is violated, which it has been countless times by the Bush Administration. The "victims" are those whose civil rights have been violated. They won’t be known until the Bush Administration discloses the information regarding false positives, which it will not, or the surveillance program has been thoroughly investigated, which Congress refuses to do. How would you know if you had been illegally wiretapped?

Frankly, my interest is more in the presidential lawbreaking than the civil rights violations in this case. I raise the civil rights questions because this is a lbertarian blog. What if the Bush Adminsitration’s illegal actions curtailed or infringed upon the rights of gun owners? Would that get more of a charge from you?
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
it’s the GG defense
Defense? It’s the lawbreaker who needs a defense, not the one complaining about the law being broken. The so-called "incomplete facts" are complete enough to make reasoned judgments. That said, I am all for more complete facts. The "compelling competing interests" may have justified an emergent violation of the statute, even though emergencies are specifically provided for in the statute itself. But five years of criminal violations? A stubborn refusal to even request a change in the law, which Congress has been begging the Adminstration to do? An arrogant dismissal of checks upon executive power? Support all that if you like but that is not the America I know.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
If I take you at your word, then that makes you a "useful idiot" to all those who ARE pursuing a political agenda in this matter.
I suppose I could decide that the President has violated some law (God knows there are enough of them) and that his action just might some day cause my right to bear arms to be threatened. Well then, I suppose that I could burst forth in print and demand that Congress investigate his crime. Failing that, I could get the ACLU to find a conservative judge (perhaps in Kentucky?) who would issue an opinion full of righteous indignation that "There ain’t no Kings in America" and strike down the foul policy that upset me. Heh. Then we could get on with the impeachemt!
Oh yeah, I forgot about my gun. Well, it’s over there in the cabinet. Haven’t done much shooting, I’m so busy with the Committee Supporting Impeachment, doncha know.
 
Written By: Robert Fulton
URL: http://
I suppose I could decide that the President has violated some law (God knows there are enough of them) and that his action just might some day cause my right to bear arms to be threatened. Well then, I suppose that I could burst forth in print and demand that Congress investigate his crime. Failing that, I could get the ACLU to find a conservative judge (perhaps in Kentucky?) who would issue an opinion full of righteous indignation that "There ain’t no Kings in America" and strike down the foul policy that upset me. Heh. Then we could get on with the impeachemt!
I am entirely convinced that that is exactly what would happen. And I would support you and condemn the president who had broken the law.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
FISA is a statute that ensures civil rights. It proscribes criminal penalities for violations.
How does a statute that regulates foreign intelligence and surveillance ensure civil liberties?
 
Written By: err
URL: http://
But it is only an "opinion" and not "an established fact" because the Bush Adminstration has desperately dodged judicial review. Why? Because DOJ knows the domestic spying program violates FISA.
So who cares if it doesn’t violate FISA, let’s blow open every detail of a useful counter-terrorism tool to score points with leftists and terrorists. The lives of our people don’t matter as much as our ideals.

The dems are indeed on the other side, in this war.
 
Written By: Josh
URL: http://
How does a statute that regulates foreign intelligence and surveillance ensure civil liberties?
By ensuring that the executive branch must secure warrants from the judiciary before wiretapping people in the U.S. Otherwise, the executive could wiretap whomever it chose to for whatever reasons it wanted, without notice, disclosure, or oversight. That is precisely why FISA was enacted.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
By ensuring that the executive branch must secure warrants from the judiciary before wiretapping people in the U.S. Otherwise, the executive could wiretap whomever it chose to for whatever reasons it wanted, without notice, disclosure, or oversight. That is precisely why FISA was enacted.
So people in the US had no protection from wiretapping before FISA?
 
Written By: err
URL: http://
So who cares if it doesn’t violate FISA, let’s blow open every detail of a useful counter-terrorism tool to score points with leftists and terrorists. The lives of our people don’t matter as much as our ideals.
Fine, you don’t care about civil liberties and you ridicule American "ideals." That’s your right under the system of American ideals and civil liberties.
The dems are indeed on the other side, in this war.
That may be, though I sincerely doubt it. In any event, however, I am not a Democrat.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
So people in the US had no protection from wiretapping before FISA?
The Fourth Amendement sets the outer limits, but it is quite general and provides little guidance for effective investigatory action. Accordingly, Congress has acted to set forth procedures that must be followed for wiretapping in the U.S. Code. Wiretaps for general law enforcement purposes are contolled by the procedures set forth in Title III. Wiretaps for intelligence purposes are controlled by FISA. If you haven’t yet, you should read the FISA statute; it is fairly clear (by lawyer standards, anyway).
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
The fact that there have been no identified "victims" of the Bush Administration’s crimes is both irrelevant and misleading. The crime is complete when FISA is violated, which it has been countless times by the Bush Administration. The "victims" are those whose civil rights have been violated.
DS,

Do you remember Jamie Gorelick’s "wall"? While Ms. Gorelick was the number two official in the U.S. Department of Justice (during the Clinton administration) she wrote a memorandum putting in place procedures prohibiting communication between law enforcement agents and prosecutors pursuing counter-terrorism cases.

Wikipedia [blush] summarizes:
U.S. Attorney Mary Jo White (Clinton appointee) wrote Ms. Gorelick six years before the 2001 terrorist attacks in New York and at the Pentagon.

"Our experience has been that the FBI labels of an investigation as intelligence or law enforcement can be quite arbitrary, depending upon the personnel involved and that the most effective way to combat terrorism is with as few labels and walls as possible so that wherever permissible, the right and left hands are communicating," wrote Ms. White.

But Gorelick ignored this advice and went to great lengths to exceed the intent of legal precedent. A Gorelick 1995 memorandum states that the procedures her memorandum put in place "go beyond what is legally required...[to] prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation." (Emphasis added.) The wall intentionally exceeded the requirements of FISA and then-existing federal case law.
According to your logic, if an FBI agent had violated the procedures outlined in Gorelick’s memo by co-operating in an anti-terrorism intelligence investigation, this would be a "civil rights" violation, and I, as a libertarian would be obliged to be outraged.

I don’t agree.

I am not a lawyer, and I have no expertise to offer on the subject of whether or not the NSA wiretapping program violated FISA, but, if it did, the thing that has been violated is a procedutal safegaurd which was put in place to prevent abuses of civil liberties. To me, that does not automatically equate with violating civil liberties themselves.

In the case of economic liberty our society has been cutting away even the most fundamental protections (see: eminent domain), but with respect to the 4th Amendment liberties we have created so many layers of procedural safegaurds, that I am not prepared to say that a technical violation of procedure constitutes prima facie proof that someone’s civil liberties have actually been compromised until I know more of the facts.
 
Written By: Aldo
URL: http://
I can’t believe you guys are still arguing over these petty things like whether it is actually a violation of FISA or if the violation is justified by the Executive’s foreign suerveillance powers, etc.

David said CIVIL RIGHTS might have been violated! Pavlov rang the the bell, libertarian dawgs, so it’s time for you illegal-President-supporting, law-breaking-approving thugs to shut up and start toeing the line.
 
Written By: Terry
URL: http://
I am not a lawyer, and I have no expertise to offer on the subject of whether or not the NSA wiretapping program violated FISA, but, if it did, the thing that has been violated is a procedutal safegaurd which was put in place to prevent abuses of civil liberties. To me, that does not automatically equate with violating civil liberties themselves.

In the case of economic liberty our society has been cutting away even the most fundamental protections (see: eminent domain), but with respect to the 4th Amendment liberties we have created so many layers of procedural safegaurds, that I am not prepared to say that a technical violation of procedure constitutes prima facie proof that someone’s civil liberties have actually been compromised until I know more of the facts.
Aldo:

I generally agree with the distinction that you draw between violating civil rights and violating laws that protect civil rights. (I must say, however, that that is quite a lawyerly argument for a non-lawyer.) It is theoretically possible that the Bush Administration violated FISA in only a technical sense: in other words, that all of FISA’s civil rights requirements were satisfied but the Adminsitration chose not to seek FISA warrants anyway. Frankly, I find that farfetched and contradicted by what has been publicly disclosed about the NSA program. But if that were the case, then, yes, you could have lawbreaking without substantive civil rights violations.

Remember, however: civil rights are not self-executing, especially when the power of the executive is the threat, which, as the law enforcement arm of the government it generally will be. That is precisely why Congress writes the laws it does, such as FISA, to ensure review and accountability for the executive. The larger problem, of course, is that when there is no compliance with the FISA warrant requirement and no Congressional review then no one but the executive is reviewing the executive’s actions. This allows the executive to operate in secrecy and I don’t think it takes much imagination to see that this is a very dangerous prospect, whether the right in question is property-based, as in eminent domain, or liberty-based, as in the right to bear arms, the right to freedom from unreasonable searches, etc.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
I wonder if Levin is really stupid, or just really dishonest? The cases he cites are pre-FISA, so the president’s inherent authority (which only means the ability to act in the absence of countervailing legislation) wasn’t in question.
 
Written By: jpe
URL: http://
I’ll say it again. Take away the political motivation (Make Bush Look Bad) (Impeach Bush) (Help Democrats Get Elected), call it what you will, and Aldo and Terry strike the correct note for this issue.
 
Written By: Robert Fulton
URL: http://
I can’t believe you guys are still arguing over these petty things like whether it is actually a violation of FISA or if the violation is justified by the Executive’s foreign suerveillance powers, etc.

David said CIVIL RIGHTS might have been violated! Pavlov rang the the bell, libertarian dawgs, so it’s time for you illegal-President-supporting, law-breaking-approving thugs to shut up and start toeing the line.
I’m not suggesting any course of action for anyone. I’m merely making observations. In my opinion, presidential lawbreaking is a very serious matter, but I have come to doubt whether the majority of Americans agree. I saw it first with Clinton, when the Democrats defended his lawbreaking, and I see it now with Bush, with the Republicans defending his lawbreaking. My conculsion is that, for most people, presidential lawbreaking isn’t really that big of a deal, unless, of course, it’s the president from the other party doing it.

I have to run but I’d be glad to discuss this further another time.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
In my opinion, presidential lawbreaking is a very serious matter, but I have come to doubt whether the majority of Americans agree. I saw it first with Clinton, when the Democrats defended his lawbreaking, and I see it now with Bush, with the Republicans defending his lawbreaking. My conculsion is that, for most people, presidential lawbreaking isn’t really that big of a deal, unless, of course, it’s the president from the other party doing it.
I won’t discount the partisan nature of opinion on the subject, but when you add the context of things like McCain-Feingold - a law that actually infringes on the First Amendment, infringment acknowledged by the Supreme Court - and the lack of outrage by some who are throwing a fit over this program, i find it hard to get worked up about the NSA listening in on oversees phone calls in order to track terrorists. I’m not using that as an excuse, but it does add to the context, and given the current climate, I just don’t see the NSA program violating essential liberty, particularly given that foreign governments aren’t restricted by FISA.
 
Written By: err
URL: http://
In my opinion, presidential lawbreaking is a very serious matter,
I completely agree. My problem is with understanding whether or not the law has indeed been broken. To this point all we have are a bunch of legal opinions and, apparently, one very poor ruling, by which to determine this. I think that has a lot more to do with "whether the majority of Americans agree" or not.

This obviously isn’t as simple a subject nor as cut-and-dried a thing as some would like to make it.

Personally I’d like to see it properly investigated and then make up my mind. But that’s been blocked as well, and it is that for which I’m angry.
 
Written By: McQ
URL: http://www.qando.net/blog
My problem is with understanding whether or not the law has indeed been broken. To this point all we have are a bunch of legal opinions and, apparently, one very poor ruling, by which to determine this. I think that has a lot more to do with "whether the majority of Americans agree" or not.

This obviously isn’t as simple a subject nor as cut-and-dried a thing as some would like to make it.

Personally I’d like to see it properly investigated and then make up my mind. But that’s been blocked as well, and it is that for which I’m angry.
McQ:

A couple of points. The Administration has admitted that it does not comply with the FISA procedures. That is not in dispute. That is a prima facie case for lawbreaking and would undoubtedly justify an indictment. The Administration doesn’t deny it violates FISA’s provisions, but it claims it is excused from compliance based upon two arguments: 1) AUMF authorization; and 2) inherent authority. The overwhelming majority of informed legal opinion is that neither argument is meritorious; indeed, both are borderline frivolous. That is my opinion, as well, and I am quite confident of the accuracy of that assessment. And, if so, the conduct is illegal and the Bush Administration has been systematically breaking the law for five years.

You are correct, however; those are only personal opinions and, god knows, I’ve been wrong before. The matter won’t actually be decided without authoritative legal review. Unfortunately, the Bush Administration is fighting tooth and nail to avoid just that type of authoritative judicial review. Believe me when I tell you that the Adminsitration will continue to desperately avoid review of the merits of its NSA program by asserting what, in other contexts, are prejoratively referred to as "technicalities." It is quite obvious that the Bush Administration does not want judicial review of its actions. What does that tell you? It tells me that the Bush Administration knows that its surveillance is illegal but doesn’t want a definitive ruling from an authoritative court just so it can continue to claim that it is only people’s opinions that it is breaking the law. Plausible deniability, as I mentioned earlier.

It also tells me the same thing that you are complaining about regarding the lack of invesitgation into the NSA program. Once again, the Administration has fought mightily to preclude such investigation. Unfortunately, Congress has been compliant and complicit.

And that’s where we are.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
Keep in mind that I’m not a legal expert, but why is the AUMF authorization argument not meritorious and borderline frivolous?
 
Written By: err
URL: http://
David Shaughnessy appears to believe that Congress by statute can override the Constitution and craft law that negates or modifies the powers and tasks reserved for Article II executive, Article III Courts, and Article IV States Rights and duties. And apparantly dismisses reservations one of the few smart people in the Carter Administration Attorney General Levy insisted accompany FISA signing and which has been re-iterated ever since - that Congress is NOT usurping the Presidents inherent Article II powers to deal with foreign agents and entities.

Congress may pass a law stating that DOD reports to the Armed Services Committees and not the President. But it would not be Cinstitutional. It may say that any Supreme Court decision may be overridden by "The New Denny Hastert/John Conyers -sponsored law" that a 2/3rds Congressional vote sets aside SCOTUS calls. But it wouldn’t be Constitutional.

Nothing shows me the utter fecklessness of civil libertarians like the current enemy rights lovers willing to say FISA is supreme over all other precedent in war conduct, past SCOTUS decisions, and Article II powers.

*********************

As this was a thread about a low-IQ Carter idiot named Anna Diggs Taylor - my opinion is the Constitution needs to be changed. Not to enshrine FISA and the need to have a lawyer in robes sanction that we must prepare hundreds of millions of 30-page FISA warrant applications a day (Imagine adding 30 million new Fed employees and lawyers tasked with preparing 10 warrants a day to submit to the million-person FISA Court) so we can legally listen in on the traffic that has a small amount of terrorist communication in it we can filter from all traffic. Traffic BTW, that is NOT listened to, but analyzed for enemy messages...

No, the Constitution needs to be changed to eliminate America as the only nation on Earth that was dumb enough to give lifetime appointments to Federal judges. Not even the States do it. They have the power to make their judges "lifetime" - but all have concluded it is crazy to go beyond "independent" to make judges unaccountable to life, unremovable for poor performance, poor judgement, unrestrained activism not grounded in interpretation of law...and only impeachable if they do criminal activity.

The difficulty in changng the Constitution and the rise of the near-religious Veneration People - that believe the Constitution is the one perfect unchangable document that is soiled and made less Holy anytime it is amended - have allowed out Constitution to become outdated in sections, sections that no longer fit modern society, and vulnerable in it’s growing opacity over the years with unelected lawyers having the ability to modify it to say what the lawyers want it to say.

We need a 2nd Constitutional Convention to Revise. Other nations do so every 60-70 years. Despite the squawks of the Venerators and the Originalists that think America, it’s society, and the world can still be operated and governed as if it was 1790. Among the 1st and foremost tasks would be a 10-12 year appointment as Fed Judge, renewable one time. And fixing the continuity of government issues constitutional scholars claim might land us in a temporary military caretaker gov’t if DC was ever nuked until competing claims on who the President was and a new House election ocurred.
 
Written By: C. Ford
URL: http://
The Administration doesn’t deny it violates FISA’s provisions, but it claims it is excused from compliance based upon two arguments: 1) AUMF authorization; and 2) inherent authority.
That’s correct, and that is why this is far from settled and until it is, it seems rather pointless to argue about what has or hasn’t been violated.
The matter won’t actually be decided without authoritative legal review. Unfortunately, the Bush Administration is fighting tooth and nail to avoid just that type of authoritative judicial review.
And it is that which angers me. That is what our form of government is all about ... rule of law, and the executive branch is the chief law enforcer, so he and his AG should be all about clarifying this as expeditiously as possible and, if not in compliance, lobby Congress for the necessary change in the law (assuming the change would be Constitutionally sanctioned)and then complying with it.

So my gripe isn’t with the arguments taking place today ... we don’t know enough facts to come to any legal conclusion (as was obvious in that rambling piece of crap Taylor issued). So in that regard, it’s much ado about nothing. What we should be screaming our heads off about is the fact that there are those in our government who are blocking what I consider to be an important review of the legality of particular actions undertaken by the executive branch.

There are ways to do that and not compromise security. And those blocking such an inquiry should be roundly and loudly condemned.
 
Written By: McQ
URL: http://www.qando.net/blog
The Administration has admitted that it does not comply with the FISA procedures.
Point of FACT: This is inaccurate. In some instances they do not comply with the FISA procedures. In many instances they do. As proof of this, take a look at how many FISA court applications have occured in the past 5 years.

http://www.epic.org/privacy/wiretap/stats/fisa_stats.html

2001 - 932
2002 - 1228
2003 - 1727
2004 - 1758
2005 - 2074

Out of those only 4 were rejected.
 
Written By: Keith, Indy
URL: http://
As a clarification, I should have said in some instances they do comply. Since we do not know the scope of the other NSA wiretapping, we really can’t judge how much they do or don’t comply with FISA.

While looking through the EPIC website, I was reminded of this oldy but goody, Carnivore.

 
Written By: Keith, Indy
URL: http://
McQ -

The three ways to trigger a Constitutional Review, or Crisis if you view it that way...is for one Branch disputing the powers and authority of the other Branch to challenge it. In this case, it is civil liberties activists that are mounting the challenge to Presidential War and Emergency Powers...not Bush for doing exactly as his predecessors have done. Their Holy Grail is the claim that the War Powers Act and separately FISA changes Article II and suborns Article II clauses to revision by the Will of Congress. But in 30 years, neither the Democrats or Republicans have had the guts to trigger the Constitutional Crisis on which Branch has Final Authority.

History suggests that it is the Executive because Congress under the Articles of Confederation failed miserably at implementing Foreign Affairs and controlling enemy agents...and gave those tasks to the Executive when the Constitution and USA replaced the Confederation.

I like what you wrote earlier:
Courts have generally recognized that the judicial system is not the best place to make determinations about how to fight and win wars, or how to deal with enemy espionage during a conflict. When they do weigh in, they generally rely heavily on precedent and clear legal reasoning, something Judge Taylor felt was mostly unnecessary in the case, evidently.
Indeed, if national security is turned into a case by case review of each enemy who claims his precious enemy liberties and rights were violated, we are dead as a nation until enough innocent American blood is shed to dispell the "obligations to enemy due process" illusions.

Add to that when Congress has sway on war-fighting or national security policy implementation vs. the Executive - we end up in Nicaragua because some senior Senator is unusually close to United Fruit lobbyists, doing trade embargos or giving out military aid not in our national interest, or thinking national security is code for "bringing home the bacon." When Congress has meddled in specific war-fighting strategy - requiring dispositions of Union troops in useless forts, mid-war inquisitions, requiring that tactics avoid cutting North Vietnamese supply lines or blocking N. Vietnamese harbors - the results are usually been worse than leaving it to the Executive, even under a bumbler like Wilson or Bush II.
 
Written By: C. Ford
URL: http://
If this makes it to the SC, I want to read Alito’s
version of, "The court cannot grant standing
because it sincerely desires to see the plaintiff
prevail," and "An unconscionably tendentious
reliance on a narrow and weak chain of precedents
is no substitute for a properly researched and
supported decision... the lower court should
invest more time in hiring more qualified law
clerks and greater supervision of their work."
 
Written By: Q. R. McGill
URL: http://www.mied.uscourts.gov
David, unless you know something that isn’t publicly known, you are not justified in stating that a FISA violation occurred as though it were an established fact. It’s not. Read FISA, focusing on the definition of "electronic surveillance." You’ll find that if the wiretapping occurred inside the U.S., it probably was an "electronic surveillance," and therefore a FISA violation unless any of the proffered defenses apply. But if the tapping occurred outside the U.S., and the search did not intentionally target the person on the U.S. side, it’s not an "electronic surveillance," and FISA has no application at all. Ditto if they did target the U.S. guy under circumstances where he does not have a reasonable expectation of privacy - as no one placing or taking a call to/from a known police state does.

We don’t know all the details we’d need to figure out all these ifs, but the smart money says there is no FISA violation here, even if FISA is applied as broadly (and, correspondingly, the executive power construed as narrowly) as the privacy fetishists advocate. The stupid money says there is a FISA violation, but one that could easily be cured by moving NSA’s surveillance equipment a few feet further into international waters.
 
Written By: Xrlq
URL: http://xrlq.com
It seems to be an article of faith among many that the president knowingly and willfully either violated FISA or trampled on the Constitution in the implementation of TSP. Few such people ever appear to have considered the possibility that the president acted in the belief that what he was doing was legal and constitutional.

Assume for the purposes of discussion that the president was acting in good faith. Should he be pilloried, excoriated and, perhaps, impeached for performing what he believed was a legal, consitutional and appropriate exercise of his Article II and AUMF powers?
 
Written By: Diffus
URL: http://
Ah, Diffus, I too remember the fifties. Great time. Your question would have been entirely appropriate then. Don’t you wonder why it hasn’t been asked yet in this year-old controversy? Respect for our elected leader and any benefit of the doubt until facts prove otherwise.... Well, you can read the comments from Mr. Shaughnessy above. And he claims to be non-partisan!
We are well past any good faith about anything. Mr. Shaughnessy has Bush guilty with none of the civil rights guaranteed every citizen, even the President - and he does so in the name of civil rights. Go figure.
 
Written By: Robert Fulton
URL: http://
The Administration doesn’t deny it violates FISA’s provisions, but it claims it is excused from compliance based upon two arguments: 1) AUMF authorization; and 2) inherent authority.

That’s correct, and that is why this is far from settled and until it is, it seems rather pointless to argue about what has or hasn’t been violated

Let me give the benefit of the doubt here and say that some people here actually don’t feel that they know whether these are valid arguments or not.

They’re not. They’re not even close. AUMF was a Congressional act authorizing the President to use the US Armed Forces against Al-Quieda. It did not authorize the president to ignore any previously passed laws in doing so, anymore than a delcaration of war against the Axis Powers could be used as an excuse to re-institute slavery, arguing that the war required it and Congress’ declaration of war implicitly authorized the president to take all neccesary measures to win it.

If Congress had intended to allow President Bush to violate FISA, it would have needed to mention that somewhere in the AUMF. It does not. Therefore he cannot. This argument is astoundingly dishonest on the behalf of the government. It is almost literally a joke.

Secondly, unlike the disingenous claims presented here, FISA specifically asserts power over the wiretapping of US citizens under all cirumstances, including in and out of war.

If the government genuinely considered this to be an infringement of its natural Article II powers, its only proper course of action was to challenge the law in court and have it struck down as unconstitutional. Until this is done, the law is the law is the law is the law and when you break it, you’re a criminal. The president is not allowed to break laws based on his opinion of their constitutionality.

The government, in admitting the existence of its program, de facto admitted its illegality under FISA and lost any realistic court case right there.

That a handful of selected conservative law critics don’t think the argument was well written is indeed beside the point.

 
Written By: glasnost
URL: http://
Let me give the benefit of the doubt here and say that some people here actually don’t feel that they know whether these are valid arguments or not.

They’re not. They’re not even close. AUMF was a Congressional act authorizing the President to use the US Armed Forces against Al-Quieda.
That seems like a very narrow reading of the AUMF, do you have info that supports it?
 
Written By: err
URL: http://
"That a handful of selected conservative law critics don’t think the argument was well written is indeed beside the point."
That a handful of selected liberal critics think that the shoddy ruling won’t be overturned on appeal is beside the point. This case is a textbook example of forum-shopping.
"The government, in admitting the existence of its program, de facto admitted its illegality under FISA and lost any realistic court case right there."
This is an example of liberal hubris. A majority of courts would probably have thrown this case out based on standing. Here we have a liberal positing that "any realistic court" would find a President guilty of a crime "de facto".
Perhaps he meant to say "any reality based court".





 
Written By: Robert Fulton
URL: http://
Uhoh, Glastnost is in big trouble. In addition to being just plain wrong (twice), he may be outside the Liberal Narrative. Who knew? The
NYT
is equivocating on the NSA decision. [For good reason.]
"Experts Fault Reasoning in Surveillance Decision
By ADAM LIPTAK
Published: August 19, 2006
Legal experts said the opinion overlooked important precedents and substituted passion for analysis.
“Discomfort with the quality of the decision is almost universal.” said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments."
 
Written By: Robert Fulton
URL: http://
And it is that which angers me. That is what our form of government is all about ... rule of law, and the executive branch is the chief law enforcer, so he and his AG should be all about clarifying this as expeditiously as possible and, if not in compliance, lobby Congress for the necessary change in the law (assuming the change would be Constitutionally sanctioned)and then complying with it.

. . .


What we should be screaming our heads off about is the fact that there are those in our government who are blocking what I consider to be an important review of the legality of particular actions undertaken by the executive branch.

There are ways to do that and not compromise security. And those blocking such an inquiry should be roundly and loudly condemned.
McQ wrote that and I entirely agree. Does anyone here disagree? And, if so, why?
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
They’re not. They’re not even close. AUMF was a Congressional act authorizing the President to use the US Armed Forces against Al-Quieda.
And the NSA is part of the Department of Defense.

And the purpose of the wiretapping was gaining inteligence on al Quida operatives or operations.

David - I agree with McQ completely.
 
Written By: Keith, Indy
URL: http://
Keith:

Since you agree with McQ’s condemnation of the Bush Administration’s recalcitrance with regard to legal review and substantive investigation that begs the question: Why is the Administration stonewalling if they are convinced that they are acting legally? To me, that certainly suggests bad faith. Consciousness of guilt, we call it in the trade.

You know, I can make the arguments excusing the Administration’s FISA violations. Lawyers can argue about anything forever. But I wouldn’t want to defend those arguments in court because I know they are specious. And the DOJ knows it, too, which is why they don’t want judicial review.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
Something to ponder:
Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.
Justice Louis D. Brandeis, dissenting, Olmstead v. United States, 277 US 479 (1928).

 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
That seems like a very narrow reading of the AUMF, do you have info that supports it?
The Congress considered amending FISA, and declined to do so. That eliminates any theory of implicit repeal.
 
Written By: jpe
URL: http://
"...those blocking such an inquiry should be roundly and loudly condemned."
"Does anyone here disagree? And, if so, why?"
The magic words: "As a practical matter...". Once one lets loose the liberal hounds on a political issue that is deeply felt, one ends up with "penumbras" and "emanations" and incredibly bad law as liberal judges struggle to do what they believe is "right" despite precedent and common sense.
The Bush administration has a job to do and they are gitten ’er done (or not, one could argue). Traipsing off to court to provide a forum for those in denial who think that a few jihadists cannot threaten our way of life (and therefore that now is as good a time as any to cover the fine points) is not part of taking care of business.
If something improper is being done, where is the proof? All you need is one injured party. Oh yes, "lawyers feel constrained talking with foreign clients on unsecure lines". tch, tch, you’d think there was a war on.
Putting up with technical law-breaking in a good cause versus trashing our legal system with bad law (such as the current example) leaves me saying the Bush administration should do what they are doing.
 
Written By: Robert Fulton
URL: http://
Glasnost:
AUMF was a Congressional act authorizing the President to use the US Armed Forces against Al-Quieda. It did not authorize the president to ignore any previously passed laws in doing so, anymore than a delcaration of war against the Axis Powers could be used as an excuse to re-institute slavery, arguing that the war required it and Congress’ declaration of war implicitly authorized the president to take all neccesary measures to win it.
That’s just silly. Every declared war implies an authorization to spy on your declared enemy. To argue that the President can’t spy on al Qaeda pursuant to the AUMF makes no mores sense than arguing that FDR had no right to spy on Germany or Japan because those declarations of wars didn’t say anything about espionage, either.
 
Written By: Xrlq
URL: http://xrlq.com/
That’s just silly. Every declared war implies an authorization to spy on your declared enemy. To argue that the President can’t spy on al Qaeda pursuant to the AUMF makes no mores sense than arguing that FDR had no right to spy on Germany or Japan because those declarations of wars didn’t say anything about espionage, either.

I can’t believe you can be making this analogy in good faith. It blows my mind.
FDR, while spying on Nazi Germany and Imperial Japan, was not spying on Americna citizens in the United States of America. And if someone comes up with a clever little example of where he was actually doing so, it’s still irrelevant, becuase at the time Congress had not explicitly passed a law forbidding the president from doing so.

FISA explicitly prohibits warrantless wiretaps on US citizens and establishes the FISA court as the sole comeptent authority to authorize wiretapping. It specifically refers to times of both war and peace. It is the alw of the land until ruled unconstitutional by a US court. No administration, including this one, has attempted to do that.

To argue that the AUMF implictly gave the President the right to break established laws governing the use of military and intelliegence agencies in regards to US citizens is a joke. There’s no historical precedent in this country and tens of thousands of contrary precedents. When Congress wants tyo give the president the power to do something currently illegal, it amends the law making it illegal, explicitly, or it writes new exceptions into the law. If the AUMF had said "We hereby waive the Foreign Intelligence Act, Sections (i), (ii), (iii), whatever", I would not be making this argument.

This method - having Congress explicilty declare when laws are being changed - is the only way to preserve basic sanity in law. People arguing that the AUMF implicitly grants the president authority to break other laws - it’s mindboggling. It’s comparable to Hilary getting a law passed that says "We authorize Hilary Clinton to create a national health care system", and then decided that that law empowered her to invade hospitals across the country with Federal Marshals, confiscate all the property, nationalize all the hospitals, and send troops into people’s houses to confiscate the loot needed to pay for the system.



 
Written By: glasnost
URL: http://
And the NSA is part of the Department of Defense.

And the purpose of the wiretapping was gaining inteligence on al Quida operatives or operations.


If Congress hadn’t already passed a law two decades ago explicitly banning wiretapping on US citizens outside of warrants approved by the FISA court, you’d have a point.

But it did. So you don’t. When Congress wants standing law to no longer apply, it passes a new law that makes explicit changes to the old law, right down to rewriting specific phrases and striking out sections.

A very good example of this is the USA Patriot Act.


If the AUMF implicitly authorizes Bush to violate FISA, which laws does it not implicitly authorize him to break? Can he raise and lower interests rates, to keep the country economically strong enough to win the war on terror? Can he sieze private property and imprison US citizens that he or his Justice Department accuse of being terrorist sympathizers, without judicial review?
Can he ignore future acts of Congress that he deems inhibit his use of military force to win the War on Terror?

In context, it is a clearly nonsensical argument, because the exact same argument could be applied in an equally legally "plausible" manner to allow the President the right to do any da*n think he wants that some syncophant can logically connect to the GWOT.






 
Written By: glasnost
URL: http://
Rob, I find the NYTimes to be an interesting source of news. I often agree with it. When I don’t, I couldn’t give a flying f*** about what it believes.

The Bush administration has a job to do and they are gitten ’er done (or not, one could argue). Traipsing off to court to provide a forum for those in denial who think that a few jihadists cannot threaten our way of life (and therefore that now is as good a time as any to cover the fine points) is not part of taking care of business.
If something improper is being done, where is the proof? All you need is one injured party. Oh yes, "lawyers feel constrained talking with foreign clients on unsecure lines". tch, tch, you’d think there was a war on.



I am, however, pleased to see you take your first baby steps away from your personal inquisition of all things liberal and towards actual discussion and analysis of real events in the real world.
 
Written By: glasnost
URL: http://
Clinton’s defenders had their arguments justifying what he did and Bush’s defenders have theirs as well. Like I said earlier, it sure seems that people don’t much care about presidential lawbreaking, unless the president breaking the law happens to be in the other political party. That, I think, is extremely troubling and demonstrates the extent to which partisanship has eaten away at the foundation of our country. I mean, can’t we agree that all presidents — whatever their political affiliation — meet certain baseline requirements? High among that list, for me anyway, is not breaking the law. And that applies to George Bush as much as it does to Bill Clinton. When that bar is removed for partisan motives, there is literally no floor for how low we will allow our elected officials to sink.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
If there were a 60%+ Republican majority, I don’t think the President would have any problem asking or getting whatever he wanted from Congress.

However, reality is, in the Senate, there is barely a majority, and so, to much opportunity for stonewalling, and grand-standing on important issues.

So, to answer your question David, the administration doesn’t ask, because it may not get what it wants, or what it needs, from a Congress that is bitterly partisan during a time of war.

Now, I’m not saying it’s right, but it is understandable. What’s the old saying, "it’s better to beg forgiveness then permission."
 
Written By: Keith, Indy
URL: http://
I can’t believe you can be making this analogy in good faith. It blows my mind.
That obviously doesn’t take much.
FDR, while spying on Nazi Germany and Imperial Japan, was not spying on Americna citizens in the United States of America.
Nope, no spying here, just shipping off American citizens of Japanese ancestry to concentration camps. Funny, I don’t see anything about concentration camps in our declaration of war against Japan - or should that be our nonexistent declaration of war against all people who look like they might be from Japan? - yet such camps were upheld by the Supreme Court in Korematsu v. U.S. Imagaine that.
And if someone comes up with a clever little example of where he was actually doing so, it’s still irrelevant, becuase at the time Congress had not explicitly passed a law forbidding the president from doing so.
Oh, I get it. A declaration of war is just Congress’s way of saying "we don’t like you anymore, you big meanie" to another country; it doesn’t actually authorize the President to do anything he couldn’t legally do without it. Like, for example, killing people, which violates all kinds of laws and therefore must be a serious crime unless the war declaration specifically states that laws against murder don’t apply to this war. Right?
FISA explicitly prohibits warrantless wiretaps on US citizens and establishes the FISA court as the sole comeptent authority to authorize wiretapping.
No, it doesn’t. Rather than embarassing yourself further, you’d do well to go read FISA, focusing on the definition of "electronic surveillance." You’ll find that the definition is much narrower than you think, and that contrary to the BDS-inspired caterwauling you’ll hear from certain quarters, the jury’s still out as to whether a FISA violation occurred at all.
 
Written By: Xrlq
URL: http://xrlq.com/
If there were a 60%+ Republican majority, I don’t think the President would have any problem asking or getting whatever he wanted from Congress.

However, reality is, in the Senate, there is barely a majority, and so, to much opportunity for stonewalling, and grand-standing on important issues.

So, to answer your question David, the administration doesn’t ask, because it may not get what it wants, or what it needs, from a Congress that is bitterly partisan during a time of war.
Sorry, Keith, but I can’t accept that. The Bush Administration could have gone to Congress in the wake of 9/11 and had any legislation it wanted. Even now, five years later, Congress is falling all over itself trying to ratify the NSA program, but the Administration, so dangerously arrogant, doesn’t want the legislation or even acknowledge the need for it. They prefer to simply ignore, i.e., violate, the existing law. Frankly, I can hardly conceive of a more naked power grab by the Executive.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
Xrlq:

This is how FISA defines electronic surveillance:
“Electronic surveillance” means—
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or
(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
How does the legitimize the NSA program?
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
Oh, I get it. A declaration of war is just Congress’s way of saying "we don’t like you anymore, you big meanie" to another country; it doesn’t actually authorize the President to do anything he couldn’t legally do without it. Like, for example, killing people, which violates all kinds of laws and therefore must be a serious crime unless the war declaration specifically states that laws against murder don’t apply to this war. Right?

US citizens on US soil vs. non-US-citizens in foreign countries. Which of these things, pray tell, was congress referring to? Care to guess?

A declaration of war against Al-Quieda is, for example, sure as heck not permission for the US Armed Forces to extra-judicially execute US citizens on US soil. Its provisions do allow law enforcement personnel to return fire in self-defence if fired upon by suspects resisting arrests. One of these is a pre-existing power. One is not. One is okay. One is not.

Or perhaps I’m wrong. Perhaps you’re not just using ad hoc bullsh*t justifications of the particular laws the president chose to break that would somehow magically not apply to other laws he chose to break. Tell me, xrlq, does the AUMF give the president the authority to order the US Armed Forces to assinate and extra-judically execute US citizens on US soil, contrary to existing laws, as well as wiretap them contrary to existing laws? Or is FISA a separate category of "just kidding" laws that really, weren’t meant to be obeyed?

I’m genuinely interested in your answer.
 
Written By: glasnost
URL: http://
David:
How does [50 U.S.C. 1801(f), the statutory definition of "electronic surveillance"] legitimize the NSA program?
Dunno. Most of the details of the program are under wraps, so it’s impossible for you or me to know if the wiretaps in question fall within the definition of "electronic surveillance" or not. If they do, then of course the definition does nothing to legitimize the program, but if they don’t, then FISA has no application here by its terms. If, for example, NSA is foolish enough to tap phone lines on U.S. soil - a silly thing to do if you’re only interested in monitoring international calls - then it would seem like the taps clearly are electronic surveillances subject to FISA, as they easily fall within the relatively broad definition of paragraph (f)(2). But if they were smart enough to tap satellite feeds or cables outside the U.S., either in the target countries, or on international waters, or anywhere else in the world, the data was not acquired in the United States, and the definition of paragraph (f)(2) will not apply.

If (f)(2) does not apply, the taps might still qualify as "electronic surveilances" under (f)(1), but the analysis is much more complicated. As you can see, there are quite a few ways that the NSA taps could fall outside that definition, thereby making FISA inapplicable. If, for example, the taps were made more or less at random, targeting no one in particular, then the data NSA obtains will not have been derived by "intentionally targeting [the] United States person" on U.S. soil, and FISA does not apply. Ditto if they targeted the person outside the U.S. rather than the person in inside, or even if they did intentionally target the guy inside but he was not a U.S. citizen or lawful permanent resident (and therefore not a "United States person" within the meaning of subsection (i)). Even if we assume, for argument’s sake, that NSA did intentionally target U.S. citizens or resident aliens on U.S. soil, it’s still not an "electronic surveillance" under paragraph (f)(2) unless they did so under circumstances where that U.S. person had a reasonable expectation of privacy. Does anyone placing/taking calls to/from a known police state, whose own government routinely monitors telephone conversations, have a "reasonable" expectation that the conversation will remain private? You tell me.
 
Written By: Xrlq
URL: http://xrlq.com/
David - all I’m saying is I can understand the political calculation to not pursue this, either through legislation or in the courts.

As a side-note, I’m not at all convinced that the reporting on the program is at all accurate. Both because so much of the program is a secret, and because the press has a history of both getting it wrong, and viewing what little they do get with extreme bias.

So, given that, I’m all for a legislative and court review of this, and all other programs which effect our liberty. But, it must maintain a programs secret nature, and be done in a bi-partisan, careful fashion.

I’m not going to claim things which I either do not have the expertise or confidence to state. I’d have to make to many assumptions to get from where I am on this, to stating with such conviction what others have.
 
Written By: Keith, Indy
URL: http://
Keith:

I’m not trying to bludgeon you on this but you need not rely on press reporting to know that the NSA program does not comply with the procedures set out in FISA. The Administration has repeatedly acknowledged this, but claims that it is justified in doing so for two reasons: 1) AUMF authorization; and 2) inherent authority.

This is an excerpt from the DOJ White Paper dated January 19, 2006 entitled LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT
As the President has explained, since shortly after the attacks of September 11, 2001, he has authorized the National Security Agency (“NSA”) to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations. . . .

The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility. The President has made clear that he will exercise all authority available to him, consistent with the Constitution, to protect the people of the United States.

In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute has confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland. In its first legislative response to the terrorist attacks of September 11th, Congress authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September 11th in order to prevent “any future acts of international terrorism against the United States.” Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (Sept. 18, 2001) (reported as a note to 50 U.S.C.A. § 1541) (“AUMF”). History conclusively demonstrates that warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF. The Supreme Court’s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad. This understanding of the AUMF demonstrates Congress’s support for the President’s authority to protect the Nation and, at the same time, adheres to Justice O’Connor’s admonition that “a state of war is not a blank check for the President,” Hamdi, 542 U.S. at 536 (plurality opinion), particularly in view of the narrow scope of the NSA activities.

The AUMF places the President at the zenith of his powers in authorizing the NSA activities. Under the tripartite framework set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), Presidential authority is analyzed to determine whether the President is acting in accordance with congressional authorization (category I), whether he acts in the absence of a grant or denial of authority by Congress (category II), or whether he uses his own authority under the Constitution to take actions incompatible with congressional measures (category III). Because of the broad authorization provided in the AUMF, the President’s action here falls within category I of Justice Jackson’s framework. Accordingly, the President’s power in authorizing the NSA activities is at its height because he acted “pursuant to an express or implied authorization of Congress,” and his power “includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635.

The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States—the Foreign Intelligence Surveillance Act (“FISA”), as amended, 50 U.S.C. §§ 1801-1862 (2000 & Supp. II 2002), and relevant related provisions in chapter 119 of title 18.1 Although FISA generally requires judicial approval of electronic surveillance, FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA. See 50 U.S.C. § 1809(a) (prohibiting any person from intentionally “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute”). The AUMF, as construed by the Supreme Court in Hamdi and as confirmed by the history and tradition of armed conflict, is just such a statute. Accordingly, electronic surveillance conducted by the President pursuant to the AUMF, including the NSA activities, is fully consistent with FISA and falls within category I of Justice Jackson’s framework.

Even if there were ambiguity about whether FISA, read together with the AUMF, permits the President to authorize the NSA activities, the canon of constitutional avoidance requires reading these statutes in harmony to overcome any restrictions in FISA and Title III, at least as they might otherwise apply to the congressionally authorized armed conflict with al Qaeda. Indeed, were FISA and Title III interpreted to impede the President’s ability to use the traditional tool of electronic surveillance to detect and prevent future attacks by a declared enemy that has already struck at the homeland and is engaged in ongoing operations against the United States, the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context. Importantly, the FISA Court of Review itself recognized just three years ago that the President retains constitutional authority to conduct foreign surveillance apart from the FISA framework, and the President is certainly entitled, at a minimum, to rely on that judicial interpretation of the Constitution and FISA.
These are purely legal arguments, which are either meritorious or not. In my opinion the legal justifications are not meritorious. That is also the view of the overwhelming majority of legal commentators and, now, the only Federal judge who has ruled on the matter. You can certainly take another view of the legal arguments if you like, but the essential facts themselves are known beyond dispute because the Adminsitration has admitted them.
 
Written By: David Shaughnessy
URL: http://
David, you should re-read your own comment carefully. Far from "acknowledging" that "the NSA program does not comply with the procedures set out in FISA," the DOJ white paper barely addresses those procedures at all, and makes no mention whatsoever of the issue of what does or does not constitute an "electronic surveillance" for purposes of the act. Nothing in that white paper - or at least, nothing in the portion you quoted - drops so much as a hint as to whether or not the NSA wiretaps either (1) occur on U.S. soil, or (2) intentionally target U.S. citizens or lawful permanent residents under circumstances where they have a reasonable expectation of privacy. Unless you can show one or the other, there is no way to know whether or not TSP violates FISA.
 
Written By: Xrlq
URL: http://xrlq.com/
Xlrq:

This is an admission that FISA applies:
As the President has explained, since shortly after the attacks of September 11, 2001, he has authorized the National Security Agency (“NSA”) to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations
The sole purpose of the DOJ White Paper is to provide legal justification for the NSA’s electronic surveillance progam. If the program complied with FISA, no legal justification would be necessary. If the NSA program were not facially governed by FISA, no FISA exception would be needed.

Let me ask you a question: If the Administration believed — as you evidently do — that FISA does not apply, why wouldn’t it just say so?
 
Written By: David Shaughnessy
URL: http://
Professor Althouse adds the material that I realized, reading her post, I was thinking, but not saying well on this issue:

Sunday, August 20, 2006

Blogging lawprofs, go back to your law review articles.

Over at Balkinization, lawprof Larry Tribe writes a long-winded post defending Judge Anna Diggs Taylor’s opinion in ACLU v. NSA. He thinks we bloggers have gone too far criticizing her, when there’s so much reason to criticize the administration.

My point isn’t that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues.

Yeah, please tuck your criticisms away where no one will see them.

But It’s [sic] those with constitutional blood on their hands who deserve to be chastized [sic] most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one’s own professional credentials and one’s cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation’s chief executive has been guilty of a shamelessly unlawful power grab.

...You want people to concentrate on the judge’s conclusion and not to question the judge’s reasoning and analysis? To do that is to bow to authority. If that’s what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he’s doing. Why shouldn’t people accept that "important conclusion" and leave it for the experts to hash out the details in law review articles?”
“IN THE COMMENTS: Gahrie says: "Tribe’s response comes from the same well of thought that Rather’s response to the TANG memo forgeries did." Oh, yeah. Fake but accurate. She reached the conclusion we know is right, so...

MORE IN THE COMMENTS: David Walser writes:
I think there are two groups who are upset with the opinion: those for whom the opinion is further evidence of results oriented judging and those who are upset that the judge did not do a better job of hiding that this was the work of results oriented judging. Tribe is speaking to the second group. He’d like the public to quit looking at the man behind the curtain. That can’t happen if the rest of the professorate keep calling attention to The Great Judicial Oz’ failure to explain why the Administration is wrong. If you guys keep blogging, some might come to believe there is such a thing as judicial activism. That’s a greater risk to all Tribe holds dear than the matters that were at issue in this case.”


 
Written By: Robert Fulton
URL: http://
Robert:

I read Professor Tribe’s letter and he is dead wrong. A poorly-reasoned decision doesn’t become a good decision just because your side won. Judge Taylor’s opinion is sketchy, cavalier, and personalized. In a word, unpersuasive. Judge Taylor wrote an inexcusably lousy opinion. Period. Most of the legal commentary I’ve seen — nearly all of it, really — recognizes that. My guess is that the Sixth Circuit and the Supreme Court — should either or both consider the merits of the case — will just ignore her decision. Tribe does himself a disservice by playing the cheerleader.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
What an ridiculous bunch of groupthink. The opinion was fine, not simply because it reached "the right" conclusion, but because its logic and reasoning was perfectly sound. It included some inflammatory language. So what?

Dissafected right-wing dittoheads and perfectionism-oriented law review folk have combined to give this a compltely unrealistic spin. All the criticism I’ve seen has either been generalist and rhetorical in other words, worthless - like seen on here, or else logically supportable, but in no way definitive. There are reasons why Orin Kerr could think the judge could have considered special needs 4’th Amendment exceptions, and there are perfectly good logical precedents for dismissing them.

"Activist judging" = "opinions we don’t like". There is no such thing as a strict constructionist on the planet.

 
Written By: glasnost
URL: http://
Glasnost is reduced to ad hominum. I’d call that a win!
 
Written By: Robert Fulton
URL: http://
David Shaughnessy:
This is an admission that FISA applies:
As the President has explained, since shortly after the attacks of September 11, 2001, he has authorized the National Security Agency ("NSA") to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations
On what planet does that constitute an admission about FISA, or anything else?
The sole purpose of the DOJ White Paper is to provide legal justification for the NSA’s electronic surveillance progam. If the program complied with FISA, no legal justification would be necessary. If the NSA program were not facially governed by FISA, no FISA exception would be needed.
Oh, I get it. If a government official says "the Schlock Act does not apply to us because X, Y, and Z," then in Davidspeak that must mean the government thinks it is violating the Schlock Act, not merely objecting to its application in principle under the circumstances. If I worked for the DOJ, I’m not sure it even would have occurred to me that someone might launch such a ludicrous argument. Fortunately, though, this did occur to someone who does work there, and is is worth every penny they pay him. I direct you to Footnote 5, which appears at the bottom (that’s where footnotes go) of page 17:
To avoid revealing details about the operation of the program, it is assumed for purposes of this paper that the activities described by the President constitute "electronic surveillance," as defined by FISA, 50 U.S.C. § 1801(f).
If that doesn’t make it clear enough that the government is not admitting that the program violates FISA, except for purposes of discussion, then what on earth would? Short of tacking on a comma and the word "dumbass" at the end of Footnote 5, I’m not sure what the D.O.J. could have done to make this any clearer.
Let me ask you a question: If the Administration believed — as you evidently do — that FISA does not apply, why wouldn’t it just say so?
They’ve already given one reason: to avoid revealing details about the operation of the program. Another possible reason is that the Administration doesn’t want to set a precedent validating the view that the executive’s war power can be hamstrung by Congress, and is therefore jealously defending its territory for the benefit of itself and future administrations. A third possibility is that the Administration wants FISA reformed or repealed, which is likely to happen if TSP depends on it, but much less likely if Congress thinks everything is hunky-dory now. A fourth possibility, admittedly more of a long shot, is that Karl Rove had a hand in the memo, and that he figured it would be better to keep the controversy alive for a while, just on the off chance any Democrat was stupid enough to make civil rights for al Qaeda into a campaign issue.
 
Written By: Xrlq
URL: http://xrlq.com/
Xrlq:

I’m afraid that you miss the point. The referenced statement by the President (and there are plenty more by him and by the AG) clearly describe conduct covered by FISA. DOJ is arguing that although FISA applies (notwithstanding the standard lawyerly disclaimer) its non-compliance is excused for the legal reasons it details. I never said that DOJ (or the Administration) admitted that the NSA program violated FISA, only that they admitted FISA applied to the program. I then offered my view that its legal justifications were specious. That said, I’ll stop arguing with you about it. We’ll just have agree to disagree and see what the future reveals.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
DOJ is arguing that although FISA applies (notwithstanding the standard lawyerly disclaimer) its non-compliance is excused for the legal reasons it details.
No, it’s not. DOJ is arguing that even if FISA applies, its non-compliance would still be excused for the legal reasons it details. Are you incapable of reading a simple sentence?
I never said that DOJ (or the Administration) admitted that the NSA program violated FISA, only that they admitted FISA applied to the program.
They never admitted that, either. On the contrary, Footnote 5 expressly reserved judgment on that issue. Are you in the habit of accusing people of saying stuff they never said, admitting to stuff they never admitted to, etc., or do you at least have the decency to confine this annoying habit to the Bush Administration? Maybe I’d better start Googling my name and yours just to make sure you aren’t out there telling people I’ve admitted to God-knows-what.
 
Written By: Xrlq
URL: http://xrlq.com/
On what planet does that constitute an admission

in Davidspeak that must mean

ludicrous argument

"dumbass"

Are you incapable of reading a simple sentence?

Are you in the habit of accusing people of saying stuff they never said, admitting to stuff they never admitted to, etc., or do you at least have the decency to confine this annoying habit to the Bush Administration?
Classy.
Maybe I’d better start Googling my name and yours just to make sure you aren’t out there telling people I’ve admitted to God-knows-what.
You vastly inflate your importance.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
Classy.
I never claimed to be classy, only right. What part of "To avoid revealing details about the operation of the program, it is assumed for purposes of this paper" don’t you understand?
 
Written By: Xrlq
URL: http://xrlq.com/
I never claimed to be classy, only right.
You are neither. As for class, res ipsa loquitur. As for being "right," well, let’s see, you argue that FISA does not apply to the NSA program, nothwithstanding the President’s own statements, the Congressional testimony of the Attorney General, DOJ legal documents providing FISA justifications, formal inquiries by the Senate Judiciary Committee, and at least two Federal court cases (one of which has gone to judgment). Not to mention that not one person in the Administration has denied that FISA applies, nor has a single member of Congress. But you know better. You are "right." Let’s see now just why you are "right," since your rationale is something of a moving target. Is it because:
the tapping occurred outside the U.S., and the search did not intentionally target the person on the U.S. side, it’s not an "electronic surveillance," and FISA has no application at all.
or . . .
they did target the U.S. guy under circumstances where he does not have a reasonable expectation of privacy - as no one placing or taking a call to/from a known police state does.
or is it because . . .
To argue that the President can’t spy on al Qaeda pursuant to the AUMF makes no mores sense than arguing that FDR had no right to spy on Germany or Japan because those declarations of wars didn’t say anything about espionage, either.
or maybe this is it . . .
Rather than embarassing yourself further, you’d do well to go read FISA, focusing on the definition of "electronic surveillance." You’ll find that the definition is much narrower than you think, and that contrary to the BDS-inspired caterwauling you’ll hear from certain quarters, the jury’s still out as to whether a FISA violation occurred at all.


maybe this . . .
But if they were smart enough to tap satellite feeds or cables outside the U.S., either in the target countries, or on international waters, or anywhere else in the world, the data was not acquired in the United States, and the definition of paragraph (f)(2) will not apply.
well, how about this then . . .
there are quite a few ways that the NSA taps could fall outside that definition, thereby making FISA inapplicable. If, for example, the taps were made more or less at random, targeting no one in particular, then the data NSA obtains will not have been derived by "intentionally targeting [the] United States person" on U.S. soil, and FISA does not apply.
does this fly . . .
Ditto if they targeted the person outside the U.S. rather than the person in inside, or even if they did intentionally target the guy inside but he was not a U.S. citizen or lawful permanent resident (and therefore not a "United States person" within the meaning of subsection (i)).


well this must be it . . .
Even if we assume, for argument’s sake, that NSA did intentionally target U.S. citizens or resident aliens on U.S. soil, it’s still not an "electronic surveillance" under paragraph (f)(2) unless they did so under circumstances where that U.S. person had a reasonable expectation of privacy.
Let me save you any further strain. We can’t say that the NSA program is in violation of FISA because: It depends on what the meaning of is is. Oh, and by the way, O.J. was guilty.



 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
As for class, res ipsa loquitur. As for being "right," well, let’s see, you argue that FISA does not apply to the NSA program...
I was right; you do misquote me as liberally as you misquote the Administration. I guess you just can’t help yourself, can you? Gee, I wonder where you got the idea I was arguing that a FISA violation necessarily did not occur, as opposed to simply pointing out that we don’t have enough information to know one way or the other. Perhaps you extrapolated it from this?
David, unless you know something that isn’t publicly known, you are not justified in stating that a FISA violation occurred as though it were an established fact. It’s not.
Nope, couldn’t have been that; I made it pretty clear there that my issue was over whether your imagined violation was or was not "an established fact," not an attempt to claim as an established fact that none had occurred. Maybe you were relying on this, instead:
Rather than embarassing yourself further, you’d do well to go read FISA, focusing on the definition of "electronic surveillance." You’ll find that the definition is much narrower than you think, and that contrary to the BDS-inspired caterwauling you’ll hear from certain quarters, the jury’s still out as to whether a FISA violation occurred at all.
Hmmm, if the "jury’s still out" that must mean the guy didn’t do it, right? Then again, there’s always this quote:
Dunno.
OK, that one sounded pretty committed. I’ll bet that’s the one that cinched it for you.

As to whining about the "moving target" of a FISA violation, I’m not sure which law school you flunked out of, but FYI, statutes have "elements," all of which must be met for them to apply. If, for example, you were caught breaking into your own home in the middle of the night (say you lost your keys, or whatever) and were charged with burglary in a (hypothetical) jurisdiction that still applies the common law definition, the elements of your charged crime would be (1) breaking and entering, (2) into a dwelling, (3) of another, (4) at night, (5) with intent to commit a felony therein. The burden of proof would be on the prosecutor to show, beyond a reasonable doubt, that each and every one of these elements had been met. Your defense attorney may challenge the prosecution one element only, or he may attack any number of them. Presumably, he’d stipulate to Element 4, but he could challenge any number of the rest. If he did, the prosecutor would have to prove him wrong every time; he couldn’t just whine about the defense putting up a "moving target" because one minute your attorney argued that you’re innocent because the house you entered was not a dwelling of another, and the next he’s arguing that you’re innocent you didn’t have the intent to commit a felony when you entered. He’s allowed to argue both theories, and frankly wouldn’t be doing his job properly if he didn’t. At the end of the day, the prosecution must instruct the jury to convict only if all five elements were proved beyond a reasonable doubt. He can’t just throw up his hands and say "C’mon, guys, work with me. We all know the guy broke into a building, we know that building was a dwelling ’cuz he admitted to living there himself, and we know it happened at night, so rather than quibbling over whose dwelling it was, or what he was planning to do when he entered, let’s just declare him guilty and go home. Three out of five ain’t bad!"

So too with an alleged FISA violation. FISA provides four alternative definitions of "electronic surveillance," any one of which would suffice to make a tap an "electronic surveillance" generally subject to FISA. Those aren’t "shifting rationales" on my part; they’re part of the statute itself. Far from muddying the issue, I’ve actually made your work easier by eliminating the two theories that clearly do not apply, namely Paragraph (3), which only applies when all parties to the monitored conversation are in the U.S., and Paragraph (4), which only applies to surveillances "other than from a wire or radio communication." That leaves two possible theories under which an electronic surveillance subject to FISA may be occurring under TSP. If "may" were all you were arguing, there’d be no argument. However, you’re not satisfied to say "may," are you? Oh, no, you have to go for the gold and claim that a violation of the basic FISA rule is occurring. Fair enough, but if you are going to argue "is" instead of "may," then the burden is on you to show either that all of the elements of 50 U.S.C. 1801(f)(1) necessarily are present, or that all of the elements of 50 U.S.C. 1801(f)(2) necessarily are. You can’t prove either theory, of course, which has been my point all along (and Dale’s, for that matter).
Let me save you any further strain. We can’t say that the NSA program is in violation of FISA because: It depends on what the meaning of is is.
Wrong, legal eagle. The meaning of 50 U.S.C. 1801(f) is not in dispute. What is in dispute is your top secret security clearance, which you’d have to have in order to know enough about TSP to make a reliable judgement as to whether or not TSP falls within that general definition. The D.O.J. expressly reserves judgment on that issue, but you claim to more about it than they do. I don’t buy it.
Oh, and by the way, O.J. was guilty.
Damned right he was. Section 187(a) of the California Penal Code defines murder as "the unlawful killing of a human being, or a
fetus, with malice aforethought." Section 188 allows malice to be either express or implied, and provides that such malice is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature, and implied, when no considerable provocation appears. Put together, that means O.J. is guilty of two counts of murder if it can be shown beyond a reasonable doubt that (1) he killed Nicole Brown Simpson and Ronald Goldman, (2) the killings were unlawful, (3) Nicole Brown Simpson and Ronald Goldman were human beings (or fetuses) at the time of their killing, (4) their killings were committed with malice aforethought. No one seriously questions whether elements (2)-(4) were met. There is no evidence that Goldman and Brown provoked O.J., or that any other circumstances existed that might defeat the presumption that their killing was unlawful. No one disputes that the victims were human beings, or that they were killed in a gruesome manner that makes express malice aforethought highly probable, and implied malice aforethought a no-brainer. The only element in dispute is element (1), namely whether O.J. was the one who did it. I believe that element, like the rest, has in fact been proven beyond a reasonable doubt; it just happened before a jury who was as dense about the facts of in case as you are about the law on FISA.

Now try performing a similar analysis on either 50 U.S.C. 1801(f)(1) or 50 U.S.C. 1801(f)(2). Pick either theory, your choice, and then prove that ALL of the elements have been met. Or, you can finally cut your losses and admit you don’t the basics about this federal statute you claim to care so much about. Your call.
 
Written By: Xrlq
URL: http://xrlq.com/
Pick either theory, your choice, and then prove that ALL of the elements have been met.
I wonder if you would dissemble so frantically if the president breaking the law were, say, Billl Clinton, instead of George Bush. . . That’s rhetorical, of course.

If it comes time, and if I were the prosecutor, I would gladly prove each element beyond a reasonable doubt. Meanwhile, I’ll rely on the public admissions and non-denials by the President, the Attorney General, the DOJ, the NSA Director, Republican Congressional leaders, etc., etc., etc. that FISA applies to the NSA program. Haven’t you noticed that you are the only one arguing to the contrary? Everybody defending the NSA program but you assumes that FISA applies (because it does, of course) and then tries to justify non-compliance with legal arguments, i.e., excuses.

I am fully equipped to make a judgment on the proffered legal excuses for non-compliance: that the AUMF authorized the surveillance and that FISA is unconstitutional. Those are purely legal arguments and I think they are specious. We’ll probably know for sure soon enough.

One last thing: What do have against civility? I don’t come to blogs for namecalling and insults. I come for civilized discussion. If we aren’t here for the same purpose, perhaps we shouldn’t bother corresponding. Up to you. In any event, there is clearly nothing more to be gained on this topic and so I’m done with this particular discussion. Feel free to launch a final shot if you like.
 
Written By: David Shaughnessy
URL: http://dsthinkingloud.blogspot.com/
Haven’t you noticed that you are the only one arguing to the contrary? Everybody defending the NSA program but you
Were I to waste time arguing about this issue, I would have come to a conclusion similar to xlrq’s.

However, I simply don’t care if it applies or not as long as none of the information found by the intercept programs can be used as evidence in court.
 
Written By: Mark A. Flacy
URL: http://
If it comes time, and if I were the prosecutor, I would gladly prove each element beyond a reasonable doubt. Meanwhile, I’ll rely on the public admissions and non-denials by the President, the Attorney General, the DOJ, the NSA Director, Republican Congressional leaders, etc., etc., etc. that FISA applies to the NSA program.
That would be fine, but for the inconvenient fact that no such admissions exist, and the only "non-denials" are discussions focusing on other issues. I’ve already pointed out to you, repeatedly, that the DOJ white paper expressly reserves judgment on the very issue you claim they’ve admitted or "non-denied." You’ve simply ignored that.
Haven’t you noticed that you are the only one arguing to the contrary?
No, I’ve noticed precisely the opposite: quite a few people besides me are raising the same questions. Not just the D.O.J., which one might expect to take a view friendly to the administration, but also the Congressional Research Service, as Dale noted in the original post. And then there’s Orin Kerr. I dare say the only people discussing the FISA controversay who are not arguing contrary to you are the people who are either indifferent to that particular issue (e.g., Andrew McCarthy), more interested in the bigger picture (e.g., the Administration, and any Congressional Republicans seeking to reform FISA) or are simply not being honest (e.g., Glenn Greenwald).
One last thing: What do have against civility?
Nothing. My beef is with smugness and dishonest debating tactics, not with civility. What do you have against admitting when you are wrong?
 
Written By: Xrlq
URL: http://xrlq.com/

 
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