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Tilting at Windmills

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December 18, 2005
By: Hilzoy

Bush And The Separation Of Powers

As Shakespeare's Sister noted yesterday, President Bush admitted that he authorized the surveillance program described in Friday's New York Times, which allows the government to conduct surveillance on American citizens without a warrant.

This is an extraordinary admission. But since some of our friends on the right are having difficulty understanding why, I thought I'd spell it out.

First, this program seems to be illegal. I explained in my last post why I think this; you can read the relevant law (FISA) for yourself, or check out the relevant bits, which I pasted into a comment on Obsidian Wings.

(Some of the legal commentary from the right is beyond bizarre. This, for instance:

"This was done and reviewed periodically every 45 days. 50 USC 1802 says:
(a)
(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year...."

If you check out the text after the ellipses, it says: "if the Attorney General certifies in writing under oath that...", and one of the things the AG has to certify in order to engage in these warrantless wiretaps is: "(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". A 'United States person' is defined here; it includes any US citizen or legal permanent resident. So this section explicitly does not authorize the sort of warrantless surveillance of US citizens that the NY Times describes.

After writing this, I found more debunking of right-wing legal analysis here.)

Unless there's some intriguing legal authority that I'm missing, the President has admitted to ordering his subordinates to violate the law. And that is extraordinary in itself.

***

In addition, President Bush's actions violate the crucial doctrine of the separation of powers, which is one of the founding principles of our country. The separation of powers requires that the three branches of government be strictly separated. The role of the Legislature is to write the laws and to impose taxes. The role of the Executive is to carry out those laws. The role of the judiciary is to interpret them, and to carry out the judicial proceedings that decide the guilt or innocence of individuals. When one branch takes it upon itself to usurp the powers of the others, the separation of powers is threatened, and our liberty is at risk.

Montesquieu, the great theorist of the separation of powers, wrote:

"Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. (...)

To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. (...)

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals."

James Madison wrote, in Federalist 47:

"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system."

What George Bush has done, by signing his Presidential Order, is to produce exactly that accumulation of powers that Madison and the other framers of the Constitution were determined to prevent. He has decided to circumvent the courts' power to decide whether the government has enough evidence to place someone under surveillance, thereby removing a crucial check on executive power, and arrogating one of the powers of the judiciary to himself.

Moreover, the power he seeks to strip the judiciary of is not a peripheral one; it is essential to the Fourth Amendment prohibition against unreasonable searches and seizures. Thus, from a 1972 Supreme Court decision (United States v. United States District Court):

"Lord Mansfield's formulation touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation. Inherent in the concept of a warrant is its issuance by a "neutral and detached magistrate." Coolidge v. New Hampshire, supra, at 453; Katz v. United States, supra, at 356. The further requirement of "probable cause" instructs the magistrate that baseless searches shall not proceed.

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359-360 (DOUGLAS, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."

In addition, in deciding that he has the right to disregard clear statutes, President Bush is arrogating to himself the power of the legislature as well. The Legislature has the power to make laws; the Executive carries out the laws the Legislature has written. Had George W. Bush wanted to, he could have gone to Congress and asked it to change the laws. Instead, he decided to simply ignore them: to act as though he had the powers that the Constitution reserves to the legislative branch.

He is, essentially, claiming that he has the right not just to execute the laws, but to write them himself, and then to judge their application. Moreover, he claims the right to do this in secret. Were he to announce openly that he had decided to concentrate all the powers of government in his own hands, we could at least argue about whether or not we thought that was a good idea. But by acting in secret, he is, essentially, asserting the right to amend the Constitution unilaterally and without having the decency to let us know.

***

President Bush claims that "the NSA's activities under this authorization are thoroughly reviewed by the Justice Department and NSA's top legal officials, including NSA's general counsel and inspector general." Unfortunately for us, there is no reason to doubt that this is true. The New York Times reported that:

"For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses."

Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."

The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.""

This is the same administration whose lawyers wrote, in one of the torture memos (pdf):

"In light of the President's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the President's ultimate authority in these areas." (p. 20.)

They apparently believe that when the Constitution says (Art. II, sec. 2) that "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States", what it means is that the President has the power not just to, well, command the Army and Navy, but to set aside laws, treaties, and the rest of the Constitution itself, so long as there is even a tenuous connection between what he wants to do and national security.

I have no idea how they square this with other parts of the Constitution, like its statement that the President "shall take Care that the Laws be faithfully executed", or with the fact that the Framers seem to have completely disagreed with them. (Federalist 69 on the Commander in Chief power:

"It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.")

But if it's hard to reconcile the administration's position with the Constitution and the views of the framers, it's even harder to reconcile it with anything remotely resembling common sense. Because, on this view, the President can do anything he wants -- anything at all -- during wartime.

Does he want to imprison a United States citizen indefinitely, without a warrant, and habeas corpus be damned? Fine! Does he want to tap our phones and read our email, also without a warrant, in defiance of the FISA statute and the Fourth Amendment? Also fine! As far as I can see, on this reading of the Constitution, there's no reason he couldn't decide that his war powers extended to levying taxes without Congressional approval (wars cost money, you know), or throwing Congressman Murtha in jail to prevent him from sapping our troops' morale, or suspending the publication of all newspapers, magazines, and blogs on the same grounds, or making himself President For Life on the grounds that we need the continued benefit (cough) of his awesome leadership skillz to successfully prosecute the war on terror.

To quote the Federalist Papers one last time (this time, no. 48):

"An ELECTIVE DESPOTISM was not the government we fought for; but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others."

In this country we do not have an absolute monarch. We have a President who is bound by the rule of law, just like the rest of us. When he asserts the right to set the laws and the Constitution aside, and to arrogate all the powers of government in his hands in secret so that he can use it unchecked, we have an obligation to make it clear that he is wrong. And if we love our country, we will.

Hilzoy 5:37 PM Permalink | Trackbacks | Comments (84)

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Comments

Illegal, and immoral. More so since the taps would have benn authorized if the Bushistas could be bothered with complying with the law.

Posted by: Ol'Froth on December 18, 2005 at 5:40 PM | PERMALINK

I don't see why this surprises anyone. Bush has absolutely nothing to fear. He knows that there is no way even a vote of censure -- much less impeachment -- can ever make it to the House floor. And the Senate is going to investigate absolutely nothing.

The Republicans will cling to power as long as they can, and Bush knows it. For them to open this can of worms or even allow it to be opened would be the end of their rule.

A Democratic majority in 2006 is our only hope.

Posted by: alan on December 18, 2005 at 5:46 PM | PERMALINK

Bush Almighty has met the enemy and in the words of Pogo, "they is us."

Posted by: thebewilderness on December 18, 2005 at 5:53 PM | PERMALINK

But the checks and balances seem to offer no remedy to Bush's outright lawbreaking.

Who has standing to challenge Bush's actions in court?

When the Congress takes no action to prevent usurpation of power by the Executive, there is no check or balance. It seems clear that Congress won't cut off funds, pass another law (that would be ignored), or bring articles of impeachment against the President.

The checks and balances theory relies on the differing power interests and independence of action of each of the branches. When there is identical power interest (maintaining single party control of the government), and no independence of action - and the executive is determined to achieve his power goals - then all the carefully crafted mechanisms of the Constitution are ineffectual.

We are more likely to proceed toward tyranny than to freedom from this point forward. Our empire will get its Caesar, just as the Romans got theirs. What will prevent it?

Posted by: JimPortandOR on December 18, 2005 at 5:58 PM | PERMALINK

I don't think a majority of the republicans has the stomach for this kind of blatant criminal behavior. The rank and file are not the ones on TV or with web logs. Sure there's a population of about 15% media programmed zombies, But the majority of the republican base (read voters, not donors) has been upset for sometime with this administration's shennanigans.

This is a stone cold violation of law. No conservative of any stripe can support this type of invasive behavior given that it was completely unnecessary (normal FISA statutes would have been sufficient).

Those who are attempting to defend this are the paid-for and the moralless. This is obvious based on the blatant dishonesty as documented here of their first line of defence.

The president in his admission of guilt has brought about a constitutional crisis, that can only be resolved by his resignation or impeachment. Either way he will become the first president on record to be convicted of crimes while in office.

It may take another 9 months to finally see he and his team exit the whitehouse, but as of the release of the Risen report the administration is no longer permitted to declare itself innocent by fiat. They have used up their credibility. They must go.

Posted by: patience on December 18, 2005 at 5:59 PM | PERMALINK

So the President is arguing that, despite FISA's clear statement that it is the exclusive means by which the government can conduct electronic surveillance in the US for national security purposes, the statute is unconstitutional because it impinges upon his powers as commander-in-chief to conduct such surveillance? As you point out, Hilzoy, given this expansive view of the commander-in-chief clause, what are the limits to presidential power? I just can't believe that this is the kind of system that the framers envisioned.

Posted by: alf on December 18, 2005 at 6:02 PM | PERMALINK

alf: it isn't.

Posted by: hilzoy on December 18, 2005 at 6:03 PM | PERMALINK

thank you so much.


this is a superb, highly informative post.

it's being printed out now and will be read and re-read along with glen greenwald's meticulous case study of a right wing web log disinformation campaign (para 6).

Posted by: orionATL on December 18, 2005 at 6:04 PM | PERMALINK

Is Bush stupid or is this planned?

I think one reason they impeached Clinton was to set up the public for complete partisan actions by both parties. If they can say it's never the Rule of Law, but only partisanship which inspires impeachments, then they can dismiss Democratic actions in all future situations.

Now, the Republicans aren't going to impeach Bush, but if the Democrats try then the Republicans might allow it to go ahead. It'll go the same way as the Clinton case: maybe an indictment, but no conviction. The Republicans can simply say, see there wasn't sufficient evidence and the impeachment was merely a partisan attack.

That lets Dubya off the hook for EVERYTHING and sets them up perfectly to deal with the next Democratic President (perhaps Hillary). They can say there is no 'high ground', no moral superiority, there is only majority rule. It allows them to dismiss any investigation Dems might begin and allows any future Republican president to do anything, absolutely anything.

I would urge Democratic Congressmen to dismiss their urge to indict, unless they can get a fair jury (Senate) to convict. Justice can't be done with the current Republican-controlled Congress.

However, use this entire period of outrageous Republican behavior to indict all Republicans in the next election campaigns. Make them all pay, not just Dubya (who isn't ever going to run for office again anyway).

Posted by: MarkH on December 18, 2005 at 6:06 PM | PERMALINK

Isn't the key to find someone who was wiretapped, who would then have standing to make the case?

How would somebody find out?

Posted by: theAmericanist on December 18, 2005 at 6:08 PM | PERMALINK

From the NYT today:

> In his statement on Saturday, Mr. Bush did not address the main
> question directed at him by some members of Congress on Friday: why he
> felt it necessary to circumvent the system established under current
> law, which allows the president to seek emergency warrants, in secret,
> from the court that oversees intelligence operations. His critics said
> that under that law, the administration could have obtained the same
> information.

Because the sonovabitch *has* no answer, that's why.

Bob

Posted by: rmck1 on December 18, 2005 at 6:08 PM | PERMALINK

"Because, on this view, the President can do anything he wants -- anything at all -- during wartime."

Including, you may be sure, ignoring the duty of the Congress to declare war, and deciding on his own that a state of war exists.

Posted by: Deborah on December 18, 2005 at 6:16 PM | PERMALINK

Actually, "his criics said that" the administration is probably trying to acquire information on persons who would *not* be subject to the law as it stands (ie are american citizens) or would not be subject to the law because they are not, and have not, committed any criminal or terrorist acts. Bush's critics are saying that its quite probable that the wiretapping has been extended to Bush's political and social enemies--isn't that what happened already when it turned out we bugged other UN members in order to be able to better armtwist at the UN?

Every senator and congressman must know that the people most likely to have been wiretapped are other senators and congresspeople (both on bush's "side" and not) because that kind of information is invaluable to karl rove.

aimai

Posted by: aimai on December 18, 2005 at 6:20 PM | PERMALINK

This post is excellent, and very similar to Glenn Greenwald's superb post yesterday on Bush's claim to unchecked Executive power and the Founding principles of the U.S., also with ample support from the Federalist Papers.

Both this post and Greenwald's are excellent, excellent reading - the best it gets in the blogosphere.

Posted by: Debra Stevens on December 18, 2005 at 6:29 PM | PERMALINK

> I don't think a majority of the republicans
> has the stomach for this kind of blatant
> criminal behavior.

I'm afraid the evidence so far is against you.

Posted by: alan on December 18, 2005 at 6:32 PM | PERMALINK

Let's add Armando's post over at Daily Kos to the mix. He points out quite a few flaws in the Bybee memo which is the legal reasoning behind the notion that the president has unchecked power. And also check out Glenn Greenwald's dismantling of Al Maviva's (probably deliberate) misinterpretation of FISA, which so many on the right are referring to and linking to.

What's interesting is how few of the top right-wing bloggers and commenters are willing to actually engage in the merits of this discussion. Of the major conservative blogs, only the Volokh Conspiracy has seen a genuine discussion of the legal issues involved, as far as I know. As for the conservative commenters here, well, we've seen how they've behaved. The last time I checked, not a single one of them had read the statutes in question or had done any thinking about the consequences of a theory of unchecked presidential powers, particularly in a time of "war" that will not end in my lifetime.

The Bush administration is asserting that it has the Constitutional authority to monitor my phone calls, my mail, and my e-mails, to search my home, to declare me an enemy combatant, to lock me up forever, to torture me, or to ship me off to another country to be tortured. And all of this with no warrant, no judicial oversight or review, no ability to question or protest these actions, no ability to see the evidence against me or confront my accusers, and no recourse of any kind. And as far as all too many of our conservative friends are concerned, that's just fine. Do they truly not see what this country is becoming?

Posted by: PaulB on December 18, 2005 at 7:00 PM | PERMALINK

"Because, on this view, the President can do anything he wants -- anything at all -- during wartime."

How convenient for him that a "war on terror", by definition, can have no end.

Sic semper tyrannis!

Posted by: Jack Lindahl on December 18, 2005 at 7:08 PM | PERMALINK

Thanks. Great post, excellent analysis.

Posted by: miller on December 18, 2005 at 7:18 PM | PERMALINK

Here's the part I really don't understand about this: knowing the President's aversion to contact with people generally, who thinks that GWB decided to get in the middle of ordering this? Did he get a bad cell connection one day and overhear a Middle Eastern accent talking about plane schedules? Who seriously thinks on the other hand that this was just another piece of paper Cheney plopped in front of him one day and said:"Sign this,it's important,I'll fill you in later." Isn't this issue why there's an Intelligence unit? That unit has a protocol which involves wiretapping which the house lawyers have told them must be done,eventually,with a court order. So why would GWB need to worry his pretty little ole head about? Doesn't make any sense to me, but as with so many other issues once it takes off, it has a life of its own....until a newer and fresher tragedy arises.

Posted by: TJM on December 18, 2005 at 7:22 PM | PERMALINK

The words "separation of powers" appear nowhere in the constitution. The framers meant for a powerful executive branch, one that had the capability to control the others during a time of war and other crises.

Posted by: Smithy on December 18, 2005 at 7:36 PM | PERMALINK

Smithy:

Cite your reasoning. Surely it must exist in the Federalist Papers.

:)

Bob

Posted by: rmck1 on December 18, 2005 at 7:39 PM | PERMALINK

Smithy wrote: "The words 'separation of powers' appear nowhere in the constitution. The framers meant for a powerful executive branch, one that had the capability to control the others during a time of war and other crises."

No. The framers quite specifically did not want this, as any reading of both the Constitution and the Federalist Papers would quite clearly reveal. In fact, an unchecked or "imperial" presidency was the very thing those checks and balances were set up to avoid. You will find no text anywhere in the Constitution that supports what the Bush administration is trying to do and to assert..

And in this time of a "war" that will not end in my lifetime and is not, in any sense of the word, a genuine "war," you would be granting the president unlimited authority to do any damn thing he wants without any check or balance, without any review, indefinitely. You will find no text anywhere that states that this is what our founding fathers wanted.

Posted by: PaulB on December 18, 2005 at 7:42 PM | PERMALINK

PaulB:

There's an argument to me made, I think, that the Framers did want a strong Executive in time of war, and that indeed that's one of the reason why there is a doctrine of executive privilege. Abrogations of the Congress' power to declare war, for instance, have stood for most of the 20th century.

But that hardly implies an *unlimited* Executive power, either.

Nixon failed at his attempts to establish an imperial presidency, One can only hope Bush is checked in a similar manner.

Bob

Posted by: rmck1 on December 18, 2005 at 7:48 PM | PERMALINK

Hilzoy, thanks for the link to ProteinWisdom. From there I get a link to this: Ronald Reagan's executive order 12333. Why is that important? Check this gem:

"2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order."

In other words, 20 years ago we had an executive order in which the AG was delegated with the power to approve intel techniques, for which a warrant would ordinarily be required under FISA, if it's directed against a foreign power or agent.

You know, like al-Qaeda.

Posted by: Steve White on December 18, 2005 at 7:51 PM | PERMALINK

Jim in Portland OR writes, The checks and balances theory relies on the differing power interests and independence of action of each of the branches. When there is identical power interest (maintaining single party control of the government), and no independence of action - and the executive is determined to achieve his power goals - then all the carefully crafted mechanisms of the Constitution are ineffectual.

We are more likely to proceed toward tyranny than to freedom from this point forward.

There is something called an 'election'. It happens for the House and part of the Senate every two years, and for President, every four years. I know, I know, someone will pop up with a 'prediction' that Bush will abrogate elections, but for the more serious amongst us, let's understand that the American people are quite capable of turning out politicans they don't like. And in any case, at 12 noon EST, Jan. 20, 2009, GWB will no longer be president. You can get good odds on that in Las Vegas, I'm told.

Posted by: Steve White on December 18, 2005 at 7:54 PM | PERMALINK

Steve White:

Where does it say that this power would be used against United States persons domestically?

It doesn't.

Thanks for playing, though :)

Bob

Posted by: rmck1 on December 18, 2005 at 7:59 PM | PERMALINK

Bob, both then and now, we're not spying on US citizens domestically. Even the NYT article doesn't claim that there's illegal spying on wholly domestic conversations (your posts to PA are safe).

FISA permits the government to monitor conversations and electronic communications at the international level. Even if one party is a US person, monitoring can be done if it crosses a border. A warrant is needed in certain circumstances (we've noted this on other threads, so I won't repeat it all here). The issue is whether the procedure that was authorized shortly after 9/11 is consistent with the FISA law. From everything I've seen and read so far, including the FISA law itself, the procedure is legal. I'm sure that will get worked out.

From some reason, people think that 'thousands' of Americans are being spied upon. That's just plain scare-mongering. It should be clear that this isn't some Watergate-style spying: there are no taps on DNC phones, and Kos need not worry about the NSA rummaging around his archives. There were multiple layers of review, organized re-review, and notification of appropriate oversight committees in Congress. I can't possibly imagine ranking Democrats going along with anything that smacks of domestic spying, and frankly, the Bush people are not going to lie to these committees. It's just not going to happen.

Posted by: Steve White on December 18, 2005 at 8:07 PM | PERMALINK

Um...Steve, considering that the issue in question is just such an executive order from George W. Bush, an executive order that clearly contradicts FISA, why would you think that an executive order from Ronald Reagan would be a compelling defense? There are limits to what a president can do in an executive order.

Posted by: PaulB on December 18, 2005 at 8:14 PM | PERMALINK

Sure there are, Paul. I point to EO 12333 to note that the need to use electronic surveillance, without warrants, on conversations that may have one end in our country is not a new issue. That executive order, by the way, was never rescinded or ended.

Posted by: Steve White on December 18, 2005 at 8:17 PM | PERMALINK

Steve White wrote: "Bob, both then and now, we're not spying on US citizens domestically."

Yes, actually we are. We are spying on U.S. citizens on U.S. property. That the other half of the conversation is in another country does not negate that fact.

"The issue is whether the procedure that was authorized shortly after 9/11 is consistent with the FISA law. From everything I've seen and read so far, including the FISA law itself, the procedure is legal."

No. You are simply misreading the law, as I've noted elsewhere. I've posted the relevant information here. There is simply no way to read FISA that makes this program legal. None. And as I've already noted, the administration isn't even trying.

"From some reason, people think that 'thousands' of Americans are being spied upon."

Since that is precisely what has been claimed by those officials aware of the program, I'm afraid that there is damn good reason for this belief.

"That's just plain scare-mongering."

Steve, it's based on the testimony of those who know about the program.

"It should be clear that this isn't some Watergate-style spying: there are no taps on DNC phones, and Kos need not worry about the NSA rummaging around his archives."

You have absolutely no way of knowing this.

Posted by: PaulB on December 18, 2005 at 8:19 PM | PERMALINK

Steve White wrote: "I point to EO 12333 to note that the need to use electronic surveillance, without warrants, on conversations that may have one end in our country is not a new issue."

So? Pointing to one illegal executive order to justify another illegal executive order won't get you anywhere. Nice try, though.

"That executive order, by the way, was never rescinded or ended."

If it attempts to override an act of Congress, there is no reason to rescind or end it, since it is quite clearly illegal and unenforceable. Moreover, if it were still active, the Bush administration would not have needed to file its own executive order. You're grasping at straws, Steve.

Posted by: PaulB on December 18, 2005 at 8:21 PM | PERMALINK

Steve "anti-American, anti-God" White,

There is also this thing called impeachment. In the Constituion no less. Amazing that. Even mentions the President by name. So the Founding Fathers realized the President can do something that is bad enough to warrant removing him for office. I realize from earlier posts that you hate The Constitution, the DOI, the FFs, God, Jesus, and Christmas, so the fact that the Consitution does offer recourse beyond elections is foreign to you, but bear with us - those of us who are Americans by philosophy and belief, as well as birth, don't accept the President as Princeps and Imperator. Since you do think your executive is God* Himself Brought Upon This Earth, maybe you should move somewhere that allows the existence of a tyrant; maybe Zimbabwe.

PS Please commit suicide; God needs some good news.

* Molech, apparently

Posted by: Phalamir on December 18, 2005 at 8:21 PM | PERMALINK

Paul, I'm re-reading the original Risen article in the NYT right now. The Risen article notes a few things you should look at.

Importantly, a warrant is still required for NSA to monitor a wholly domestic conversation, and the NSA was complying with that by going to the Federal Intelligence Surveillance Court. As Risen notes, what's new is that without a warrant " ...the agency, for example, can target phone calls from someone in New York to someone in Afghanistan." That's the new part.

You claim We are spying on U.S. citizens on U.S. property. That the other half of the conversation is in another country does not negate that fact.. Actually, it does. The NSA has had the authority to do this, and the Bush executive order expands this. I think you're so anxious to 'nail' the President with something that your judgment is clouded.

I think the liberal left is indeed scare-mongering. It's sad that the NYT and the Left are so desparate for an issue that they'll jump on this.

Finally, we'll have to agree to disagree on what FISA says, I've read it a couple of times know and I frankly disagee with your interpretation.

Posted by: Steve White on December 18, 2005 at 8:25 PM | PERMALINK

Steve:

In Address, Bush Says He Ordered Domestic Spying

Manuel Balce Ceneta/Associated Press

President Bush delivered his radio address in the Roosevelt Room. In

By DAVID E. SANGER
Published: December 18, 2005

WASHINGTON, Dec. 17 - President Bush acknowledged on Saturday that he
had ordered the National Security Agency to conduct an electronic
eavesdropping program in the United States without first obtaining
warrants, and said he would continue the highly classified program
because it was "a vital tool in our war against the terrorists."

In an unusual step, Mr. Bush delivered a live weekly radio address
from the White House in which he defended his action as "fully
consistent with my constitutional responsibilities and authorities."

He also lashed out at senators, both Democrats and Republicans, who
voted on Friday to block the reauthorization of the USA Patriot Act,
which expanded the president's power to conduct surveillance, with
warrants, in the aftermath of the Sept. 11 attacks.

The revelation that Mr. Bush had secretly instructed the security
agency to intercept the communications of Americans and terrorist
suspects inside the United States, without first obtaining warrants
from a secret court that oversees intelligence matters, was cited by
several senators as a reason for their vote.

[...]

Spying on Americans, Steve.

If this merely conformed to NISA, there's be no need to defend himself.

Bob

Posted by: rmck1 on December 18, 2005 at 8:27 PM | PERMALINK

Bob, he's 'defending' it because the NYT published an article that puts the program into question. Of course he's going to defend it. The first line of defense is, it's legal and proper, and he's doing it because our country is threatened by terrorism.

And best as I can tell, it is legal and proper, and we are indeed threatened.

I also think Bush is a little pissed at Democrats who are sitting on the Intel committees and who are in a position to know, who are presently sitting on their hands. They were briefed and they knew about the program. If it was blatantly illegal, why didn't they say anything? Instead you get yippers like Carl Levin on the Sunday talk circuit -- he's not even on the Intel committees and he's sounding off.

Indeed, per the Risen article we know that Sen. Rockefeller expressed 'concerns'. What did the Bush administration do? Why, they took his concerns into account and modified the program. That's according to the Risen article. There's one example of the Bush team listening to and reacting to the concern of a Democrat in the know.

Now Risen doesn't talk about other Democrats on the committees, whether they had 'concerns' or whether they were just fine about it all. This would be the perfect time for them to sound off. I don't here anything. What I hear is Democrats who aren't briefed and don't know.

Posted by: Steve White on December 18, 2005 at 8:34 PM | PERMALINK

Steve White wrote: "Importantly, a warrant is still required for NSA to monitor a wholly domestic conversation,"

Since nobody is pretending otherwise, I'm not sure why you're bringing this up. That doesn't change the fact that the Bush administration was spying on U.S. citizens on U.S. soil.

"You claim We are spying on U.S. citizens on U.S. property."

Since we are, in fact, doing so, it's not really a "claim," is it? It's a simple statement of fact.

"The NSA has had the authority to do this,"

Only with a warrant, as FISA makes quite clear.

"and the Bush executive order expands this. I think you're so anxious to 'nail' the President with something that your judgment is clouded."

Dude, since you clearly incapable of actually reading FISA and are ignoring the fact that the Bush administration itself has not claimed that what they are doing is legal under FISA, I'm afraid the only clouded judgment here is your own.

"Finally, we'll have to agree to disagree on what FISA says, I've read it a couple of times know and I frankly disagee with your interpretation."

Then show me where I'm wrong, Steve. I've highlighted the relevant statements. I've posted the actual text. Here, I'll do it again:

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that
(A) the electronic surveillance is solely directed at
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title;

Were these conversations "exclusively between or among foreign powers," Steve? Were they "from property or premises under the open and exclusive control of a foreign power" (e.g., an embassy)? Was there "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party?" The answer to all three questions is "no," which means that you cannot conduct a warrantless surveillance. Period.

The Bush administration's order clearly violated clauses A and B. These were U.S. citizens on U.S. premises. Hence, the NSA does not have the authority to conduct warrantless surveillance. There is no ambiguity here, Steve. None. The law is quite clear and there is simply no way to read it that makes the Bush administration's actions legal, which is why they aren't even trying. You are flatly incorrect.

Posted by: PaulB on December 18, 2005 at 8:34 PM | PERMALINK

ouch: I don't hear anything. Egad.

Posted by: Steve White on December 18, 2005 at 8:35 PM | PERMALINK

Steve White wrote: "The first line of defense is, it's legal and proper"

Well, duh, of course he's going to claim this. That doesn't make it true. And I will still note that he is not claiming that what they were doing is legal under FISA, so please drop that line of defense. It just makes you look foolish. They are trying an end run around FISA.

"and he's doing it because our country is threatened by terrorism."

That's been the mantra since September, 2001. After a while, you get tired of hearing them cry wolf.

Posted by: PaulB on December 18, 2005 at 8:38 PM | PERMALINK

Paul, you leave off where it gets good:

If the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney Generals certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.

The Risen article makes clear that NSA continued to get warrants on wholly domestic conversations and where the parties were US citizens. The problem for you is that most all of the al-Qaeda types in the US are not 'US persons': they're not citizens or permanent residents. In that case, a warrantless eavesdrop is perfectly legal.

Now then, you'll have to show us that any significant number of these warrantless eavesdrops occurred in communications involving US citizens. Nowhere does the Risen article allege this. It notes 'people inside the United States' (para 2) but doesn't say if these are US citizens.

Finally, this is my last note tonight: I'm off to watch the Bears beat Atlanta.

Posted by: Steve White on December 18, 2005 at 8:45 PM | PERMALINK

"Seems to be illegal"? It also "seems to be lagal". Montesquieu and the federalist are good sources on philosophy, but not on legalities of where the lines are drawn concerning surveillance of international communications. And as for separation of powers, note that members of Congress, leaders of both parties (and members of the press) were informed and granted consent. Are you trying to argue that the consent of the legislative leaders is a violation of the separation of powers?

Clearly your arguments are less well-founded and less well-reasoned than Bush's arguments.

You need to think about this a while longer and form a more coherent and legally grounded case. As the case stands now, you couldn't even get an indictment, much less a conviction, if you tried to prosecute.

Posted by: papageno on December 18, 2005 at 8:55 PM | PERMALINK

Steve White wrote: "Paul, you leave off where it gets good:"

That's because that other part is irrelevant, Steve. If they cannot meet the requirements of those earlier clauses, the remaining clauses are moot. You cannot get around that, which is why the Bush administration isn't even trying -- something you still cannot bring yourself to acknowledge.

"The Risen article makes clear that NSA continued to get warrants on wholly domestic conversations and where the parties were US citizens."

No. You are flatly incorrect on the second point and the Bush administration has already admitted this. The NSA did indeed continue to get warrants on wholly domestic conversations, so far as we know, but they did not get warrants in all cases where one party was a U.S. citizen. The Bush administration has admitted this.

"The problem for you is that most all of the al-Qaeda types in the US are not 'US persons': they're not citizens or permanent residents."

Irrelevant, Steve, since the Bush administration has already admitted that they have used warrantless surveillance on U.S. citizens on U.S. property. You are arguing against facts that have already been admitted by the Bush administration!

"Now then, you'll have to show us that any significant number of these warrantless eavesdrops occurred in communications involving US citizens."

No, Steve, I only need to show one. That's all it takes to break the law. And since the Bush administration has already admitted this, it's a settled point.

"Nowhere does the Risen article allege this. It notes 'people inside the United States' (para 2) but doesn't say if these are US citizens."

Actually, yes, it does. In the very first sentence of the article! Jesus, Steve, are you really not capable of reading anything that contradicts your world view? What part of

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans ... inside the United States

are you having trouble understanding?

Posted by: PaulB on December 18, 2005 at 8:57 PM | PERMALINK

No conservative of any stripe can support this type of invasive behavior given that it was completely unnecessary

Pull the other leg, it's got bells on it.


Posted by: Davis X. Machina on December 18, 2005 at 9:02 PM | PERMALINK

The framers meant for a powerful executive branch, one that had the capability to control the others during a time of war and other crises.
Posted by: Smithy on December 18, 2005 at 7:36 PM | PERMALINK

They also meant that war be perpetually declared, because, dag nabbit, there's dangerous terrists out there, and they'll happily put your women in burkhas and slit your throats. And living in the chaos and anarchy that is democratic rule is suicide. Freedom is an unaffordable luxury. We must fight, and we must not question the orders of Dear Leader. For only under crisis, does life have any meaning.

Posted by: osama_been_forgotten on December 18, 2005 at 9:04 PM | PERMALINK

ignoring the duty of the Congress to declare war, and deciding on his own that a state of war exists.

Idiocy like that is devouring the effectiveness of what might otherwise be a "loyal opposition." Does everybody who opposes Bush believe that the law is what you feel like it ought to be?

Posted by: papageno on December 18, 2005 at 9:07 PM | PERMALINK

PaulB,

Be thankful that you only have to argue with the good Dr. Steve White - Just pity those who are in his medical care.

Posted by: thethirdPaul on December 18, 2005 at 9:15 PM | PERMALINK

Excellent post. Very informative.

Posted by: Aidan on December 18, 2005 at 9:17 PM | PERMALINK

And Steve, what you are overlooking in all of your fussing about matters that aren't even in contention is that the matters that are in contention are important. It's not so much that the Bush administration broke the law in authorizing these warrantless surveillances, it's the legal reasoning that they are using in deciding that he has the authority to break the law.

As I've said repeatedly, the Bush administration isn't even pretending that what they were doing was legal under FISA. Instead, they are doing an end run around FISA, pretending that the U.S. Constitution grants Bush the power to ignore any and all laws that get in his way. It is this pernicious doctrine and its application -- enemy combatants, abolition of habeas corpus, rendition, torture, warrantless surveillance, etc. -- that is the real issue and the real reason that people like me are up in arms.

This is just the latest manifestation of a legal theory that claims that the president is above the law and that there can be no checks or balances, no question or recourse, when the presidents acts in this manner. This is so antithetical to everything our country was founded on and is so dangerous a policy that the uproar you are hearing is amply justified.

When you are prepared to engage in that discussion, we might be able to have a fruitful discussion. Until then, you're just spinning your wheels.

Posted by: PaulB on December 18, 2005 at 9:17 PM | PERMALINK

more about the separation of powers:


House Minority Leader Nancy Pelosi confessed late Saturday that she signed off on President Bush's decision to have a top intelligence agency conduct "unspecified activities" to gather intelligence on possible terrorists operating inside the U.S. in the wake of the 9/11 attacks.
"I was advised of President Bush's decision to provide authority to the National Security Agency to conduct unspecified activities shortly after he made it and have been provided with updates on several occasions," Pelosi admitted.
The San Francisco Democrat claimed she expressed "strong concerns" about the "unspecified activities" at the time, but offered no evidence to that effect.
Pelosi declined to explain why she didn't make public her concerns about the authorization, which Democrats now say was an outrageous abuse of civil rights.

No word yet from Senate Minority Leader Reid.

Posted by: papageno on December 18, 2005 at 9:28 PM | PERMALINK

So, since I haven't been paying attention over the weekend, has anyone started talking about an amendment to the Constitution regarding right to privacy?

Posted by: Hillary on December 18, 2005 at 9:33 PM | PERMALINK

thethirdPaul wrote: "Be thankful that you only have to argue with the good Dr. Steve White - Just pity those who are in his medical care."

I will do Steve the courtesy of assuming that within his chosen field, he is competent. Outside that field, of course, is another matter. The interesting thing about Steve is his willful blindness. You simply cannot read FISA and decide that the Bush administration's actions are legal under it, which is why the Bush administration and most conservative commentators aren't even trying (well, other than Al Maviva's tortured pretense that Al Qaeda is a sovereign nation and therefore the clauses I highlighted don't apply).

Posted by: PaulB on December 18, 2005 at 9:35 PM | PERMALINK

Papageno: my argument that it's illegal was in my last post. There I cited all the various bits of FISA.

To whoever brought up the Reagan order: the relevant bit reads:

"The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order."

Note that last sentence, which kind of puts paid to the idea that this order somehow gets around the FISA requirements.

Posted by: hilzoy on December 18, 2005 at 9:35 PM | PERMALINK

more about the separation of powers:

An uncomfortable Senate Minority Leader Harry Reid admitted on Sunday that he was briefed on the Bush administration's decision to have the NSA monitor domestic communications in the wake of the 9/11 attacks, as reported in the New York Times on Friday.
"I was briefed a couple of months ago," the testy-sounding Democrat told "Fox News Sunday" host Chris Wallace, after complaining: "Listen - the program has been in effect - it's been in effect for four years now."
Reid's admission came only after Wallace pressed him twice about President Bush's claim yesterday that congressional leaders had been briefed on the program.
Asked the first time Reid dodged the question, saying: "[The president] can't pass the buck on this one. This was his program. He's commander in chief. But the commander in chief does not, I think, trump the Bill of Rights."

Posted by: papageno on December 18, 2005 at 9:38 PM | PERMALINK

This is just the latest manifestation of a legal theory that claims that the president is above the law

Not only do folks like Steve White and Papageno know this, they're praying for this outcome. They are monarchists and have never understood why we fought a bloody war against one monarchy and don't want another.

You'd think their cheerleading of the fall of Saddam would have given them a clue.

Posted by: Boronx on December 18, 2005 at 9:41 PM | PERMALINK

my argument that it's illegal was in my last post

Is that an admission that this post, which I was responding to, was as irrelevant as I claimed? Whatever else may be wrong (or may not be wrong) "separation of powers" is not an issue.

Posted by: papageno on December 18, 2005 at 9:43 PM | PERMALINK

papageno, it quite clearly is, since the Bush administration itself has been making this argument. Your postings about Harry Reid and Nancy Pelosi are wholly irrelevant, since what's at issue is the Constitution itself, not any Democratic or Republican politicians.

Posted by: PaulB on December 18, 2005 at 9:46 PM | PERMALINK

Papageno, you may think Pelosi and Reid can repeal laws in secret conversations with the White House, but I can assure you that's not how congress works.

Posted by: Boronx on December 18, 2005 at 9:56 PM | PERMALINK

I must commend Deborah and several other in this thread who have noted that not only the danger of a President who abuses his power in a wartime situation, but the additional problem with a guy like Bush who is willing to apply a very liberal definition of war.

Bush has gone to great lengths to portray himself as a war President. To me, its very comical, except that it works with folks who seem to need a Daddy to take care of them. Such folks care little about separation of powers or an honest attempt to understand our constitution.

The war in Iraq was a joke and ended very quickly. Now, we an occupation in which we (the USA) are taking the side of the Kurds and Shiites as we help then police the Sunnis. Iraq is still no threat to the United States except to the extent that we create resentment so strong it encourages acts of terror.

The real war exits in the minds of our paranoid, uneducated, ethnocentric ultra-conservative citizens.

Posted by: little ole jim from red country on December 18, 2005 at 10:27 PM | PERMALINK

When FISA is combined with the PATRIOT act, it's striking what little is prohibited, and the specificity of what is prohibited (good overview at EPIC here, and especially interesting is the FBI Office of General Counsel "FISA Recipe").

Which raises the obvious question: What exactly about FISA/PATRIOT did the administration feel made it insufficient? Or, in Rice's words, what "more aggressive" surveillance did the administration think was required that FISA/PATRIOT didn't cover?

Only a few answers come to mind, and none of them seem reasonable or justifiable.

Posted by: has407 on December 18, 2005 at 10:34 PM | PERMALINK

So the NYT is bad because they released classified information and the Democrats are bad because they didn't release the same classified information.

Is it just me or does this make no sense at all?

Posted by: blueperiod on December 18, 2005 at 10:51 PM | PERMALINK

Steve White wrote:

and frankly, the Bush people are not going to lie to these committees.

You just have to laugh.

Posted by: craigie on December 18, 2005 at 10:57 PM | PERMALINK

Pelosi and Reid seem by these admissions to have become accomplices deserving of punishment themselves along with this criminal administration. Perhaps this is the lever by which Rove has pacified the opposition?

Posted by: joe on December 18, 2005 at 11:03 PM | PERMALINK

Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act

Game, set, match, Stevey boy!

Posted by: Jim in Chicago on December 18, 2005 at 11:09 PM | PERMALINK

I have no idea how they square this with other parts of the Constitution, like its statement that the President "shall take Care that the Laws be faithfully executed", or with the fact that the Framers seem to have completely disagreed with them. (Federalist 69 on the Commander in Chief power: ...

But if it's hard to reconcile the administration's position with the Constitution and the views of the framers, it's even harder to reconcile it with anything remotely resembling common sense. Because, on this view, the President can do anything he wants -- anything at all -- during wartime.

That's fascinating Hilzoy, but your legal analysis is solely lacking. It's all well and good to cite the Federalist Papers, but the Federal courts have repeatedly and uniformly held that warrantless electronic surveillance is within the President's Constitutional power.

Montesqiue is nice. But the holdings of the Third Circuit Court of Appeals and the Fourth Circuit Court of Appeals (among other courts) are legally binding.

As I've posted on other threads, the analysis of FISA is completely irrelevant. (So when you write "you can read the relevant law (FISA) for yourself" - you are just flat wrong.) A statute cannot abridge the President's Constitutional powers (because the Constitution trumps a law). What you need to do is stop researching FISA and instead start looking at the caselaw that has repeatedly upheld the President's power to conduct warrantless electronic surveillance for foreign intelligence purposes. You might be surprised how often the very type of warrantless surveillance as issue here has been OK'ed.

Posted by: Al on December 18, 2005 at 11:14 PM | PERMALINK

I second what Little ole Jim had to say. Just one more example of the way we let the right set the terms of the debate is the way we don't question whether America is at "war". We allow them to call that miniscule man in the White House a "wartime president without laughing or regurgitating our lunches. Can we really be at "war" when in the last five years more Americans have died from falling down the stairs?

Why do the Dems not question? Because the wimps are so afraid they will look less than tough as toenails. I've said it before, if the Dems don't stand up for peace who will? Read the speeches of King, Mandela and Gandhi. Do they sound like wimps? You are shirking the solemn responsibility of elected leaders, Democrats. Lead!


Posted by: James of DC on December 18, 2005 at 11:31 PM | PERMALINK

Pelosi and Reid seem by these admissions to have become accomplices deserving of punishment themselves

A President's assumption of legislative power can only be checked if Congressmen have the will to check it. If our constitution is well thought out, such a power grab can only succeed if they don't.

Posted by: Boronx on December 18, 2005 at 11:47 PM | PERMALINK

Al wrote: "That's fascinating Hilzoy, but your legal analysis is solely lacking. It's all well and good to cite the Federalist Papers, but the Federal courts have repeatedly and uniformly held that warrantless electronic surveillance is within the President's Constitutional power."

We have looked at the relevant case law, Al. Your understanding of what the courts have said is woefully lacking and your pretense that this is settled case law and that the federal courts have "repeatedly and uniformly held that warrantless electronic surveillance is within the President's Constitutional power" is simply false.

Nice try, though.

Posted by: PaulB on December 18, 2005 at 11:48 PM | PERMALINK

Note that last sentence, which kind of puts paid to the idea that this order somehow gets around the FISA requirements.
Posted by: hilzoy

Much like the radical right blogosphere is leaving out the critical parts of FISA to make it seem like the current spying is legal.

And I didn't realise that "al Qaeda" is a foreign power or the operatives of a foreign power? If so, then they'd qualify as POWs rather than as stateless enemy combatants currently used by the Busheviks to skirt habeas corpus and the Geneva Conventions.

Posted by: Tom - Daai Tou Laam on December 18, 2005 at 11:52 PM | PERMALINK

Al, why not point us to one such decision?

Posted by: Mark Gilbert on December 18, 2005 at 11:58 PM | PERMALINK

Why are you all so worried about domestic spying? If you have nothing to hide, you have nothing to fear. Or are you worried that those peace protests you went to were really funded by Al Qaeda?

Posted by: Smithy on December 19, 2005 at 12:12 AM | PERMALINK

I'll give you two: United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, 419 U.S. 881 (1974) and United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th Cir. 1981).

Posted by: Al on December 19, 2005 at 12:15 AM | PERMALINK

To my fellow Dems, don't waste your time arguing with the deadenders. Embrace torture, support rendition and the suspension of heabeus corpus, applaud the idea that the president is not bound by statue or the Constitution during times of war.
When I am president, I will use these new powers (thank Mr. Yoo) to protect our citizens from terrorists while imprisoning all the right wingers.
To S.White and papageno - We have your IP address and will soon know where you live. I am glad you think this is right and just and trust you will not resist when we come for you. If you know where Al, Norman, McAristotle or any other trolls reside please send their address to: capturethetraitors@gore2008.com
2008 - The Year of the Great Purge

Posted by: Gore on December 19, 2005 at 12:26 AM | PERMALINK

We are at war, and I have a duty to protect America.
Even if it means imprisoning my citizen to protect my citizen from terrorism. See, I love you guys so much, I am willing to imprison you, let your enemy roam free, while I attempt to destroy my enemy (you see, my enemy is Saddam, while your enemy is Osama bin Laden).

Posted by: Bush's Mind on December 19, 2005 at 12:36 AM | PERMALINK

No offence, but this whole line of attack is a waste of time. Wiretaps were for phonenumbers called by senior Al-Qaeda captures.

Any attempt to pick on Bush for this is just going to highlight how naive, partisan and incompetent the Democrats are on Homeland Security.

Posted by: McAristotle on December 19, 2005 at 12:55 AM | PERMALINK

McAristotle: No offence, but this whole line of attack is a waste of time. Wiretaps were for phonenumbers called by senior Al-Qaeda captures.

That would precisely fit the parameters of FISA. Which means that there would be no need for a secret executive authorization for not-FISA activity. Nor would it be necessary for Rice to claim that FISA was inadequate and other measures are necessary. What bubble are you living in?

Posted by: has407 on December 19, 2005 at 1:04 AM | PERMALINK

McAristotle wrote: "No offence, but this whole line of attack is a waste of time. Wiretaps were for phonenumbers called by senior Al-Qaeda captures."

No offence [sic], but wiretaps were for more than just phone numbers called by senior al Qaeda captures, as a quick glance at the news stories would reveal. In any case, since, aside from those news stories, we do not know who was watched, how they were watched, nor why they were watched, so I'm afraid your point is moot.

Tell me, do you always trust the government to tell you the truth?

Posted by: PaulB on December 19, 2005 at 1:07 AM | PERMALINK

Al wrote: "I'll give you two: United States v. Butenko, 494 F.2d 593 (3d Cir.), cert. denied, 419 U.S. 881 (1974) and United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), after remand, 667 F.2d 1105 (4th Cir. 1981)."

Yes, Al, we know. Too bad those cases don't support your assertion that the courts have "repeatedly and uniformly held that warrantless electronic surveillance is within the President's Constitutional power."

Like I said: nice try.

Posted by: PaulB on December 19, 2005 at 1:10 AM | PERMALINK

i am sort off confused by the whole story...

bush didn't have to issue any kind of order to authorize the nsa to intercept, monitor, record all forms of communications indulged in by us citizens.

the echelon program[subscribed to by uk, australia, new zealand, at the minimum] has been engaged in doing this for over a decade. key words, phrases, and other stipulations undoubtedly trigger a virtually automatic intercept, monitoring, recording.

the structure of echelon was that it allowed the nsa, cia to violate their charter by passing what would have been illegal "wiretaps" under US law into the echelon c&c station in wellington,nz.

then kiwi intell would forward the work product back to the usa under the cloak of "other nation" work product.

with the nyt's record of functioning as an agitprop agency of the bushit regime, one might want reconsider the bit of theater that may be on stage at the moment.

with the bushit's response today, one might just want to consider that the nyt was conspiring with the "state" to generate a situation where "secret" chekists activities by the state are always sanctioned.

i say this because i can find no reference in all the maelstrom to echelon and the secret power that bush 1, clinton, bush 2 have always had.

surely, murray waas, walter pincus know of echelon. so does james bamford.

no, this sty is not as you think it to be. if you never read a discussion of echelon as it pertains to this "bugging" issue, then you will know that this sty is a bushit set-up for "mandated" authority for the state to bug any us citizen at any time for any reason.

for those of you unfamiliar with echelon, i recommend a kiwi book by a kiwi investigative journalist - nicky hager. entitled SECRET POWER.

difficult, if not impossible, to find in the usa. i haven't searched on amazon yet today, but several years ago, its isbn number went unrecognised.

i still have a few extra copies, if you are interested, write me at my email address.

perhaps you can find them in kiwiland.

craig potton publishing.

isbn#0908802358

Posted by: albertchampion on December 19, 2005 at 4:21 AM | PERMALINK

Yikes. An Echelon-like-system would be a situation that couldn't be covered under FISA. If there is a vast, pre-emptive fishing expedition for certain words in correspondence, then the analysts deciphering the resuls of the data mining might not identify a suspicious pattern until much later than 3 days after the event.

If the feds are eavesdropping indiscriminantly, that would surely be something that the administration wouldn't want to write into law or talk about publicly. The administration's main fear would be the reaction of law-abiding citizens, not terrorists who have reasonable suspicion that they're being watched.

Posted by: Adina Levin on December 19, 2005 at 5:08 AM | PERMALINK

Pardon the repetition, but I'm trying to get this meme out: The Bushills, including Condi, are using "The President's powers as Commander in Chief" as an excuse - but that only means he is supreme authority over the armed forces, nothing more. Somehow Bush and his minions consider that a magical enabling mantra - I don't see why they think it can work.

Posted by: Neil' on December 19, 2005 at 8:41 AM | PERMALINK

What's hard to understand about all this:

Under the Bush administration, we've become a mini-Soviet Union, a mini-Nazi Germany.

Secret police.

Secret orders.

Secret prisons.

Secret laws.

Torture as a state policy.

Invasions of countries that have not attacked us.

Rampant state-sponsored propaganda campaigns directed against our own people, using taxpayer dollars.

Rampant spying on our own citizens without court oversight and, if any, limited congressional oversight.

Rampant disregard for the Constitution and the laws of the land.

Rampant election fraud by the ruling party.

Party loyalty placed ahead of the law, ahead of the people, ahead of national security.

An administration that is indistiguishable from pary apparatus.

Promotions based on loyalty to the leadership, rather than competence.

Self-serving partisan policy over science and reason and morality.

What's not to like.

It is the perfect system for fascists and soviets.

All that study of the Soviet Union has obviously led Condi Rice to conclude, and to advise Bush, that we must be just like them in order to maintain the authority of the leadership.

Maybe she can help start internment camps for blacks, Arabs, liberals, Muslims, communists, non-Christian religious believers, and other undesirables.

Posted by: Advocate for God on December 19, 2005 at 10:06 AM | PERMALINK

this is all pretty darn horrific. actually, it's worse than the standard blog conspiracy theories.

impeachment, no?

Posted by: mencken on December 19, 2005 at 3:46 PM | PERMALINK

Have you folks all gone batty? If Bush and company had blocked the NSA from using all its capabilities to track al Qaeda and disrupt or prevent more attacks on Americans, or had simply stood by passively while the NSA continued to apply its strict standards (stricter than FISA, in fact) and drag its feet, then in my view, Bush would have been guilty of unconscionable deriliction of his most important duty to the nation. I have no doubt that Jefferson and Madison, much less Lincoln, FDR or Wilson would have made the same choice, and there are numerous exampales from the actions of each of those Presidents to support that judgment. I also have no doubt that Al Gore would have made the same choice, if he had been in the White House, as he ought to have been.

What's more, if another attack had occurred without the Administration's having made every exertion to prevent it, Bush would have properly been held accountable and probably ousted from office.

Finally, this is a surely a politically perilous line of attack for any Democrats to take. Frankly, hearing Teddy Kennedy and Russ Feingold on this issue will reinforce the view of many Americans otherwise inclined to support Democrats that Democrats are not taking the threat seriously enough.

It was, after all, in the nature of this al Qaeda terrorist enemy that at least 19 of its agents (and probably quite a few more in reconnaisance and support roles) came and went from and lived in the US for years while planning and implmenting the 9/11 attacks. To counter this threat, there are many problems with reliance on help from less-than-enthusiastic allies in the Muslim world, and one should not hold one's breath waiting for the CIA to develop so-called "human sources" inside al Qaeda or among Waziri tribesmen. NSA intercepts and analysis have likely been the most important source leading to the capture of most of the al Qaeda operatives found, to date.

Posted by: Publius on December 19, 2005 at 6:10 PM | PERMALINK

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Posted by: VbhmdpEUIs on December 20, 2005 at 12:13 PM | PERMALINK




 

 

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