If GOP apologists want to support this nonsense, then I hope they are prepared for Hillary to use the same powers in 2008.

That's what I thought.

Benjamin Franklin, who signed the Constitution, also said, "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

Ambrose Bierce defined "Liberty: One of Imagination's most precious possessions."

It has ever been thus: Daniel Webster wrote, "The contest for ages has been to rescue liberty from the grasp of executive power."

Will Rogers said, "Liberty doesn't work as well in practice as it does in speeches."

Q: Does the president's inherent power as commander-in-chief during wartime override the provisions of FISA?

A: No.

The Foreign Intelligence Surveillance Court of Review disagrees:

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.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

This seems scandalous enough to stick although by now when you line up all of the Bush admin's crimes against lying about oral sex you wonder if there is ANYTHING that can finally convince people that these people are really, really corrupt...

Q: Does modern corporate American media love the thought of a super-strong republican Presidency?

Yes. Modern corporate American media is built on creating an insatiable desire for all things related to celebrities. Having a republican-based Fuhrer is thus good for their business model.

Kevin, sometimes your sensible middle-of-the road stance drives me crazy. But posts like this remind me of why I come back to your blog.
Thank you, Kevin.

Well, you may want to wallow in analysis and facts but I heard Mark Levin on the radio while driving home. He was quite clear that these "slip and fall" lawyers you're getting information from are just wrong. This is a war-time president protecting us from people who want to kill us. Any action he takes is to protect us and this is all legal and above board.
We should be tracking down and putting away those traitorous scum who dropped a dime on the president.

And that is the talk radio position. The far left wants us to lose and to go down to defeat. So there.

FISA is unconstitutional. It's never been challenged in the courts. That's probably because those people whose 4th amendment rights are being violated don't learn about it.

There is no question at all that Bush is breaking the law. It's outrageous, and I can't believe that anybody is trying to defend this.

Its worth noting, particularly, that the process supposedly being used (involving 45-day reviews) exceeds even the 15-day exceptional warrantless surveillance power granted the President under FISA in time of declared war.

It is an untenable argument that the AUMF somehow implicitly acted as a broader authorizations of surveillance than a formal declaration of war would have.

The Madness of King George.

Aside from the point above that an actual court disagrees with Kevin's analysis on the Article II point, I find this questionsable:

Neither Congress nor the courts are allowed any oversight, a position that is both both breathtaking and dangerous.

Huh? Congress WAS consulted. If Congress had a problem with the program, they should have (and could have) passed a law specifically outlawing it.

So it seems to me that Kevin is just plain lying here.

Would they trust President Hillary Clinton with these powers?

Huh? Congress WAS consulted.

Congress was given limited, and from the statements of numerous Congressmembers in response to the scandal, critical incomplete or inaccurate information about the program, and many members raised objections or at least concerns about the legality and propriety of the operation at the time they learned something of it. Still, as FISA already prohibited by its plain terms what has recently been revealed, it would have been meaningless for Congress to try to stop it -- even if they had complete and accurate information -- by passing another law, since clearly the fact that the actions were prohibited by criminal law wasn't stopping the Administration already.

But the key point is that Congress wasn't consulted, it was informed -- incompletely and/or inaccurately -- after the program was in place. That's not the same thing as being consulted.

A couple of cases during the 60s and 70s suggest that warrantless wiretaps might be constitutional if their "primary purpose" is collection of foreign intelligence, but there have been no definitive rulings on this.

HUH???

The cases from the '60s, '70s, and '80s HOLD, definitively, that warrantless wiretaps ARE constitutional if their "primary purpose" is collection of foreign intelligence. (For an '80s case, see United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980).

Anyone see that new Washington Post poll? It looks like a lot of Americans are with the president on the issue of domestic spying these days.

But the key point is that Congress wasn't consulted, it was informed -- incompletely and/or inaccurately -- after the program was in place. That's not the same thing as being consulted.

There is no difference. Congressional leaders were informed. Congress could have cut off funding for the program. They didn't.

End of Story.

This has been visited by the Supreme Court:

President Richard Nixon, in 1971, made the same argument as President George W. Bush makes today to justify domestic spying without the need for judicial approval. Both Presidents claim that their Constitutional powers as Commander-in-Chief include the right to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States.

That very argument was litigated all the way to the United States Supreme Court after the Nixon administration lost in the federal district court and the court of appeals for the Sixth Circuit. In its filed brief the Justice Department claimed there were 1,562 bombing incidents in the United States from January 1, 1971 to July 1, 1971, including the bombing of the Capitol building, and that the "seriousness and magnitude, (of these) threats and acts of sabotage against the government exist in sufficient number to justify [these] powers." Robert Mardian, who was later to become a Watergate defendant, argued before the Court on behalf of the government that there was, in effect, an ongoing war within the United States that justified invoking the president's powers as Commander-in-Chief, a power which overrode the privacy rights of American citizens as provided for in the Fourth Amendment to the constitution of the United States.
A unanimous Supreme Court (the vote was 8-0, with Justice Rehnquist recusing himself because he was in the Justice Department legal counsel's office when the domestic spying program was formulated), with Justice Powell writing the opinion, in United States v. U.S. District Court, unambiguously rejected any such notion, articulating a clear-cut admonition to those who would diminish the import of the Fourth Amendment by suggesting that domestic spying at the whim of the president would be permitted under any circumstances.

However, in a single aside, the court noted that previous presidents had engaged in domestic surveillance without securing warrants as part of ongoing efforts to secure foreign intelligence (mainly involving counter-espionage efforts directed against German and Italian embassies and counsulated by the Roosevelt Administration) and that the Court expresses no opinion on such efforts. That opening led to the enactment of Foreign Intelligence Surveillance Act (FISA) in 1978, a bill sponsored by Senator Ted Kennedy of Massachusetts with the blessing of the American Civil Liberties Union. FISA established for the first time in our history a "court" that existed outside the framework of the Fourth Amendment, a secret court that most Americans don't even know exists. It has a single function: to authorize by way of issuing warrants at the request of federal agents, surveillance within the United States on a minimal showing that the target is acting on behalf of a foreign power and that the foreign intelligence to be gathered is necessary for national security. The courtroom itself is in a vault-like chamber, a windowless room on the top floor of the Department of Justice, guarded by military security. There are seven rotating judges. The Court meets in secret, with no published opinions or public records. Nearly all of those spied upon never knew they were under surveillance.

No one, except the FISA judge involved and the Department of Justice knows what is done. No one, except the government and FISA judge knows who the warrants are aimed at. There is no review by anyone, neither the regular federal Appellate Courts nor the Congress, of its decisions. Over 15,000 search warrants, permitting eavesdropping, surveillance and break-ins, have been sought by the government and granted. Although the FISA court is required to determine if there are enough facts to justify a warrant, only eight times has it ever denied a warrant sought by the government. The FISA statute specifically gives the FISA Court the exclusive right to issue domestic spying warrants and that power has been generously exercised. There are more warrants issued by the FISA Court than by the over 1,000 district judges who sit throughout the United States in the Federal system.

Since 1978 every administration has had the FISA court available, but, as far as is known, none have rejected its use when foreign intelligence gathering was necessary. The passage of the Patriot Act in 2001 even made it more accessible and expanded its powers. However, this apparently was not sufficient for the Bush Administration.

What is really happening is that the Bush Administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying. The Supreme Court that decided United States v. U.S. District Court included Justices Douglas, Brennan, Marshall, Stewart and Powell. The Court that hears the Bush challenge will have Roberts, Scalia, Thomas, Alito and Kennedy, all of whom have shown in their previous cases great deference to the expansion of Presidential powers.

Nothing that has gone on before in this post 9-11 period, including the Patriot Act, will so drastically alter the rights of Americans to be free of governmental intrusion than a reversal of that landmark decision prohibiting government surveillance without a warrant.

http://www.huffingtonpost.com/martin-garbus/nixon-loses-bush-wins_b_12547.html

"We should be tracking down and putting away those traitorous scum who dropped a dime on the president."

Yes, by all means, let's be sure to track down the traitorous scum. It should be relatively easy; we know where they work - The National Security Agency (NSA).

From where else did you think the New York Times got their story?

Corporate author Al --
I remember when I was a kid and stopped reading the "Hardy Boys" when I learned that Franklin W. Dixon (?) was not a person, but a bank of write-to-order scriveners. I was disgusted and stopped reading the stuff.
I feel the same when I am unfortunate enough to encounter "your" posts. You are like some kind of disgusting hive. Ugh.

Hmmm, what war-time? Show me Congress' declaration of War. It does not exist. The whole thing from the Authorization on is unconstitional, and we are now a Monarchy with not a Congress, but a Soviet of Rich People's Deputies.

Al, you can't cut off funding for a black op program for a number of reasons.

The most obvious is that very few members of Congress were informed and it was illegal for them to talk about it with anybody.

Black op funding is off the books anyway, so Bush can always shift money from somewhere else.

Please mister president - protect us from those evul terrists. Listen to my phone conversations, make sure I only hear state-approved propaganda on the news, and keep a list of the books I check out of the library. Only then can I feel safe and secure.

And maybe, if you find I've been bad, you could spank me a little?

What is really happening is that the Bush Administration is seeking this moment to reverse the Nixon case and gather unto itself an unrestricted and unreviewable right to engage in domestic spying.

You keep using that word "domestic". I do not think it means what you think it means.

There is no difference. Congressional leaders were informed. Congress could have cut off funding for the program. They didn't.

Apparently, not everyone on the Right agrees with you

So, we enjoy rights only at the discretion of the President. Why would anyone have a problem with that?

Cue Tbrosz to explain why everything in this post is wrong and we can't discuss this issue further until the 'facts' are all known.

No, I would not trust President Hillary Clinton with these powers, but I would trust President Lieberman or President Mark Warner.

not everyone on the Right agrees with you

If you are going to say that, you ought to cite to someone actually on the Right.

There is no difference. Congressional leaders were informed.

According to several of the Congressional leaders that were "informed", they were not informed about many of the key details of the program even as outlined in the Administration's current public defenses of the program.

Given that, its pretty hard to advance a claim that it is clear that Congress was, in any meaningful sense, informed.

Further, Congress failure to react to a violation of a criminal statute does not make the violation any less criminal, even if Congress does know about the violation.

James: Both Presidents claim that their Constitutional powers as Commander-in-Chief include the right to override any law, statute or other provisions of the constitution in order to preserve and protect the constitution of the United States.

Absolutely. Sometimes you have to destroy the Constitution in order to save it.

Martin Garbus gives us another brilliant insight into what is happening here -

The President's Men

Mafia and white-collar defendants want legal opinions that they know are wrong but are defenses if they are prosecuted. The criminal defendants claim they thought they were doing what's right because their lawyers said so. This disproves any claim that they had a criminal intent, where intent is an essential nature of the crime.

It is a rock-solid defense that more often than not persuades the jury that even though what the defendant did was wrong, he should be found innocent because he relied on his lawyers.
There is never proof that the criminal defendants told their lawyers to write wrong legal opinions. On the contrary, the proof is that the defendant did not know if it was right or wrong and wanted to make sure that it was right before he did the money-laundering or bought stocks on inside information.

This shows how careful the defendants were.

The lawyers know exactly what they have to do. The lawyers know their jobs, and the wonderful pay they receive is dependent on these contrived decisions. The stronger the opinion, the better the client likes it.

If the lawyers don't do it, there are hundreds of other lawyers who will do it. The rewards are attractive. In order to self-justify, they will often start to believe their own lies.

That's how President Bush, Vice President Cheney, and Secretary of Defense Rumsfeld work. When they need legal opinions to justify torture, Alberto Gonzales, the Attorney General, John Ashcroft, his predecessor, and those who work for them, particularly Jon Yoo, the most scholarly and reckless of them, all give the required opinions.

They write, citing dozens of cases, in forty-page briefs, that the Geneva Convention does not apply to unlawful combatants. That torture is uniquely permissible because of the unique nature of the War on Terror.

When the politicians need a legal opinion that says you can jail American citizens and aliens nearly forever, the lawyers deliver it. When they need a legal opinion that says habeas corpus does not apply to the detainees, and the federal courts have no jurisdiction over them, the lawyers deliver it. When the President wants an opinion that says illegal surveillance of American citizens is legal, he gets it.

The warrantless wiretapping and eavesdropping violates the Federal Communications Act and is crime. There is no question of that. It is an impeachable offense. The politicians' defense is that they rely on the best lawyers on the country, those who work for them at the Department of Justice, and at the Attorney General's office.

When the President wants an opinion that the unique war on terror gives him unique Presidential powers that allow him to do nearly anything, he gets it. I fear that if he wanted to get a legal opinion stating that he had the power to execute people without the intrusion of the legal system, he would get it.

The President, Vice President, and Secretary of Defense win, we lose.

http://www.huffingtonpost.com/martin-garbus/the-presidents-men_b_12485.html

With Bush refusing to stop this wiretapping, there really is no other recourse but impeachment and removal from office. This is a rogue administration.

According to several of the Congressional leaders that were "informed",

You mean the Congressional leaders who now have to explain their inaction to Moveon.org? You must be kidding.

How about citing to several Congressional leaders who do NOT have to answer to Moveon.org? Were they misinformed?

Further, Congress failure to react to a violation of a criminal statute does not make the violation any less criminal, even if Congress does know about the violation.

Since Congress cannot constitutionally criminalize the President's powers under Article II, there was no possible violation of a criminal statute.

If you are going to say that, you ought to cite to someone actually on the Right.

Well, how about a Republican committee chair? From the The Australian:

The Republican head of the Senate judiciary committee, Arlen Specter, said it was "inexcusable to have spying on people in the US without court surveillance, in violation of our law".

Congress was not consulted. A small number of Congress members were given information, but not allowed to share it. Big difference.

The Republican head of the Senate judiciary committee, Arlen Specter,

Specter was NOT one of those briefed. So, no.

I think I understand. The President declares war (and victory) : Congress does nothing. The President continues to wield wartime powers : without any stated enemy except : Occupied Iraq and terrorists (who can't have war declared on them because they are not a polical organization with defined limits or geography). Are Congress and the Senate ready to pack their bags and go home ? There doesn't seem to be anything for them to do. The all powerful executive is ready for anything (except maybe contend with the diverse challenges that no small group is competent to oversee because of complexity and self-interest). Just in case anyone should think differently, secrecy shall be the order of the day (there's a war on, don't ya know). I'm not overlooking the mess in Iraq ; that's the point - it's in Iraq. I never had that much faith in self-proclaimed leaders.

As far as I'm concerned, unless Bush has the supreme executive power to bend me over his desk and pop one off up my poop chute whenever he feels like it, then he's not doing his job of protecting me. You libs seem to be arguing that you'd rather have a terrorist grab you by the hair, slice your head off, and have their way with it. That will never happen to me though, because I'm always safely tied up in George's closet.

Specter was NOT one of those briefed.

So Congress, as such, was not briefed, and could not have passed legislation based on their knowledge of it. QED, you lose.

None of this matters if there's no one about (in Congress or the Courts) to bell this cat.

Expect the spying on U. S. Citizens to continue until at least the end of 2006, and probably until at least the end of 2008. This is a question of (political) power, not of legal rights or institutional prerogatives.

I think I understand what going on here. Posters here are hysterical because Bush is rising rapidly in the polls - up 8 points in the latest ABC poll.

Republicans care neither for our security nor for our liberty.

Absolute power unencumbered by niceties of the law is their ultimate goal.

In case anyone's interested, TPM's got a copy of a letter sent to darth cheney from Rockefeller expressing his concerns over this.

So much for the, "if the Dems were so concerned, why didn't they complain" argument.

So Congress, as such, was not briefed, and could not have passed legislation based on their knowledge of it.

Congress, as such, WAS briefed. Briefing Congress does not require a personal brief of every single Congressman and Senator.

Can someone else pick up the ball and run with it? We're having a bad day here.

cmdicely, very few members of Congress were informed, and they were prohibited from talking to anyone about it, by law. They couldn't even talk to other members of Congress who had security clearances.

On Hardball right now, Dianne Feinstein (who sits on at least 2 relevant committees, and who has top secret security clearance) is talking about trying to talk with Jay Rockefeller about this (one of those who Bush allegedly informed) and Rockefeller told her that he can't talk it. Andrea Mitchell has just pulled out a letter that Rockefeller sealed when he was first informed by Bush, objecting and saying that he was constrained from talking about it publicly. Smart man (Rockefeller) and weaselly President.

Al: "End of Story."

Anyone else got a problem with some nitwit saying "End of Story"?

Kevin makes an honest effort here, and I'm no expert, but it seems like he has some points wrong.

It appears FISA does not authorize the program, but I do not believe Presidend Bush claims it does. The fact that FISA does not authorize the program does not mean that it violates FISA. So Kevin appears wrong on that point.

The issues of inherant power is more complicated that Kevin suggests. It seems clear that the Congress could prohibit the President from conducting such a program (which they did not attempt to do here even after being briefed to some extent). Since they have not done so, Kevin's statutory analysis seems irrelevant.

I think the important issue here is for Congress to find out in classified hearings what was done and then decide whether they want to outlaw it. But I think that, assuming no abuse of the program by the administration (e.g., monitoring opponenets, not enemies), most of the country will be with the President and against the liberal outcry that conceptually protects citizens but realistically protects terrorists.

Congress has not declared war. We are not in wartime.

We have been facing nuclear holocaust in the Cold War for how many decades, with no question about warrantless search, and a few airplanes are crashed into some large buildings and everything changes?

Neither Congress nor the courts are allowed any oversight, a position that is both breathtaking and dangerous.

Are we back to the position that the Congressional Democratic leadership didn't know?

I repeat my earlier recommendation: take the persons involved to court. The courts can certainly decide in that fashion whether they do or do not have oversight. Get Ramsey Clark: it might be a chance for him to work on behalf of American civil liberties.

Anyone else got a problem with some nitwit saying "End of Story"?

I've got a problem with this blog's trolls, period. How can one nitwit post so many times? "Al" is a hive of little Publicans at their keyboards. Kevin, what is the difference between Al-spam and Chinese porno spam? Why tolerate it?

Brian,

But I think that, assuming no abuse of the program by the administration (e.g., monitoring opponenets, not enemies),

How do we get a solid assurance of "no abuse"?

Remember in Star Wars, when the senate gave Prime Minister Palpatine emergency war powers, and then when the war was over, and he wouldn't give them up, and then he declared himself emperor, and ruled over the galaxy for 20 years?

Al

I need your help. I'd like to get more info on your statement Since Congress cannot constitutionally criminalize the President's powers under Article II, there was no possible violation of a criminal statute.

I'm doing some research on this very subject. I'd like to communicate with you outside of these "comments." Could you send me a private email?

I'd like to find out how you came to this conclusion, who you've talked to about this, and if you have any relatives outside the United States.

Waiting on your email!

Al wrote this: 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.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

does anybody have evidence that Al's quote is factually incorrect?

How do we get a solid assurance of "no abuse"?
Posted by: Edo on December 19, 2005 at 7:50 PM | PERMALINK

Why would you need solid assurance? Don't you trust George W Bush? He's a man of integrity. In fact, I heard that Vladamir Putin looked into his soul, and has said that George W Bush is "a good man".

Who did Bush wiretap that he couldn't get authorization from FISA?

That's really the issue.

This is an out-of-control President who believes he doesn't have to answer to anybody.

Since Congress cannot constitutionally criminalize the President's powers under Article II, there was no possible violation of a criminal statute.

To bad, then, that this isn't, say, a pardon or some other act within an express Article II power, but an rule governing foreign commerce created by the executive, or, alternatively, the executive declaring its own rules for wartime capture of communications that are believed to be instruments of war, or, in the third alternative, the executive declaring that it can decide how to regulate the land and naval forces, and militia, when called to repel an invasion.

Whichever it is, though, its clearly within the Article I, Section 8 power of Congress to regulate.

Bush is a crook and a king wannabe.

End of story.

Reposted from another thread in response to a troll there, in case anyone is inclined to believe "Al"'s background noise on the issue.

The relevant part of Sen. Rockefeller's letter to Cheney:

I am writing to reiterate my concerns regarding the sensitive intelligence issues we discussed today with the DCI, DIRNSA, Chairman Roberts and our House Intelligence Committee counterparts. Clearly the activities we discussed raise profound oversight issues. As you know, I am neither a technician nor an attorney. Given the security restrictions associated with this information, and my inability to consult staff or counsel on my own, I feel unable to fully evaluate, much less endorse these activities.

Rockefeller objected to the program but was helpless to do anything about it short of illegally leaking it's existence, a move that would surely have shifted the entire focus of the discussion from its criminality and unconstitutionality to what a traitorous wanker Rockefeller is.

Now that Bush is openly discussing on national television the wiretaps that his own intelligence people leaked to the NYT, tbone is complaining aloud both that Rockefeller shouldn't be discussing classified material that Bush is chattering away about on tv and at the same time that he should have leaked it earlier if he thought it was such a big deal?

And the fact that he didn't break the law and leak information related to national security that he had no oversight over just means that no law was broken - because we all know that in this country the reaction of Democrats is the true measure of whether something is illegal, not application of the relevant statutes.

Time to tweak the meds.

... wait, no, it's the middle of the story. The end comes when he is thrown in jail.

Would they trust President Hillary Clinton with these powers?

Why not her husband President Clinton was the one who started the NSA program to monitor all electronic data within the US borders.

Since the Bill of Rights was passed after the constitution, as a means of framing the context of state powers versus citizen rights, I find any and all arguments unpersuasive that the president has the power by commander-in-chief as granted in the Constitution to do whatever he wants, in contravention of the Bill of Rights.

If that is the case, why did we pass the Bill of Rights at all? In my mind, what comes later gives context to and frames what came before, and that applies to all the Articles of the Constitution, insofar as the amendments are concerned (unless the amendments specifically limit their scope).

The fact that FISA does not authorize the program does not mean that it violates FISA.

The fact that neither FISA nor any other statute authorizes it, and that FISA criminalizes every knowing use of surveillance under color of law not authorized by statute, does, however, mean that it violates FISA.

As Commander-in-Chief, during a time of war, Bush argues that he has unstated powers to conduct that war that do not require congressional oversight. Since the WOT is endless, does that mean that Bush can declare himself President until the WOT is over?

sinop85,

you win the "its all Clinton's fault" I'm-an-idiot prize.

Of course, the argument I just made about the Constitution and Bill of Rights, and which has priority and context, and which informs the other, is not based upon any understanding of case law, which I'm sure to some degree has been corrupted by executive power, but on a philosophical understanding of constitutional and human rights law.

cmdicely wrote this: According to several of the Congressional leaders that were "informed", they were not informed about many of the key details of the program even as outlined in the Administration's current public defenses of the program.
Given that, its pretty hard to advance a claim that it is clear that Congress was, in any meaningful sense, informed.
Further, Congress failure to react to a violation of a criminal statute does not make the violation any less criminal, even if Congress does know about the violation.

congress' failure to act does in fact show support. They have subpoena power to acquire the information that they want, as well as power of the purse to halt programs of which they are suspicious. It may yet prove to be the case (I doubt it) that the president acted illegally, but it is plain wrong to claim that he acted without congressional oversight.

Quit debating this online, and debate it where it counts: take the president and his subordinates to court and try to win the debate there.

Why tolerate it?
Posted by: Chukuriuk on December 19, 2005 at 7:50 PM | PERMALINK

Because if you go onto Little Green Footballs, or Free Republic, and post one word of dissent or criticism, your post gets deleted, and you get banned.

We're better than they are. That's why.

Though I disagree with what Al says, I'll defend his right to say it. Though not to the death. His death, maybe.

Congress, as such, WAS briefed. Briefing Congress does not require a personal brief of every single Congressman and Senator.

It certainly requires more than selective briefing that cannot be legally discussed with staff or other members if your argument is that the briefing and inaction of the Congress is evidence that the Congress approved.

Since clearly the vast majority of members who did not vote for legislation banning what was already prohibited by FISA did not know and could not legally be told by their colleagues who did anything about what was going on. Ergo, the failure to take additional legislative action cannot remotely be spun as an endorsement.

Doesn't congressional oversight imply that congress has some level of input as to what is going on. What good is congressional oversight if the President can just say this is what I'm doing and if you don't like it, go fuck yourselves.

In the entire Bill of Rights, I don't recall an abundance of "commander-in-chief" exceptions. And there shouldn't be, if these protections are going to mean anything, since "emergency powers" could be claimed and never relinquished. And the Bill of Rights obviously informs and frames the powers laid out in the Articles of the Constitution in more explicit terms of the rights of the individual (and states).

does anybody have evidence that Al's quote is factually incorrect?

The opinion is here: http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

Quit debating this online, and debate it where it counts: take the president and his subordinates to court and try to win the debate there.

You know its strange how, most of the time, the right-wingers whine about liberals trying to force their agenda through the courts rather than convincing the public, but then, when the specter of an issue that might have public traction raises its head, they turn to the "stop the public advocacy and try to win through the courts" argument.

Republican sheep: Why would you need solid assurance? Don't you trust George W Bush? He's a man of integrity. In fact, I heard that Vladamir Putin looked into his soul, and has said that George W Bush is "a good man".

george W bush is a good man, but he's been drugged by the deputy fuhrer. It's an echo from the future - just like Melakon is going to do to Jonh Gill on stardate 2534.0. We need Bones to revive W!

http://en.wikipedia.org/wiki/Patterns_of_Force

Though I disagree with what Al says, I'll defend his right to say it.

OBF, you've missed my point. "Al" is not a person posting, it is a team of keyboard-beaters spamming. Look at the number of posts, ferchrissake. I would likewise defend an individual's right to post his or her point of view. Are "we better" when we let some machine post its fliers all over a substantive discussion?

Papageno
In the document Kevin cited on page 82. Also Kevin's own source disputes his claim that this violates the 'no US citizen clause". If a source is used it should be used in it's entirety.
Page 72 clearly makes Kevin a liar (if we stick with the standard that thinking is true based on information makes you a liar. I believe Kevin is just wrong, but that is the standard set on this website)
The reviewing court focused upon the close connection between criminal activity and the definitions of “agent of a foreign power” applicable to United States persons contained in 50 U.S.C. §§ 1801(b)(2)(A) and (C), to wit: “
(b) “Agent of a foreign power” means–
. . .
(2) any person who–
(A) knowingly engages in clandestine intelligence gathering activities
for or on behalf of a foreign power, which activities involve or may
involve a violation of the criminal statutes of the United States;
(B) pursuant to the direction of an intelligence service or network of
a foreign power, knowingly engages in any other clandestine
intelligence activities for or on behalf of such foreign power, which
activities involve or are about to involve a violation of the criminal
statutes of the United States;
(C) knowingly engages in sabotage or international terrorism, or
activities that are in preparation therefor, for or on behalf of a foreign
power;
(D) knowingly enters the United States under a false or fraudulent
identity for or on behalf of a foreign power, or, while in the United
States, knowingly assumes a false or fraudulent identity for or on
behalf of a foreign power; or
(E) knowingly aids or abets any person in the conduct of activities
described in subparagraph (A), (B), or (C) or knowingly conspires
with any person to engage in activities described in subparagraph (A),
(B), or (C).

I think I understand what going on here. Posters here are hysterical because Bush is rising rapidly in the polls - up 8 points in the latest ABC poll.
Posted by: Al on December 19, 2005 at 7:43 PM | PERMALINK

Side effect of the Iraqi election. Just like Bush's approval rating going up right after 9/11.

It will return to it's natural state at 36%, after Iraqi election hype dies down.

People who are saying Congressional leaders were informed and 'did nothing' are failing to remember that if they did do anything the only way they could do it would have been to talk about it and talking about it would have been violating the law.

How are the Congressional Democrats who had some inkling of this supposed to have done anything at all, their Republican colleagues weren't doing anything, and without the committee power, their hands were completely tied.

When GOP flakes here and on other boards try to complain that Democrats didn't do anything, they really have to explain what they think the Democrats could have done.

OBF, you've missed my point. "Al" is not a person posting, it is a team of keyboard-beaters spamming. Look at the number of posts, ferchrissake. I would likewise defend an individual's right to post his or her point of view. Are "we better" when we let some machine post its fliers all over a substantive discussion?
Posted by: Chukuriuk on December 19, 2005 at 8:08 PM | PERMALINK

I don't care. Let them post. Every single time they hit that Post button, they expose themselves for the morons that they are. They lose every single argument on the facts, every single time. And every single time, they live on in the twisted denial assured that they've won. They're idiots, and they don't even know they're idiots.

shudda hit the Preview button.

sinop85,

you win the "its all Clinton's fault" I'm-an-idiot prize.

Why do you go to that line everytime? I did not blame Cliton. It is historical fact that this capability has been around since Clinton authorized it's use. The Questions was would I trust Pres. Hillary Clinton and my answer was yes. I trusted when her husband made the capability. I trusted when Bush used it, and I will trust when the next President uses it. THat is because we have checks and balances, even if Reid wants to cry, he did it, I was just watching. Quit whining when your let's get Bush activites blow up with facts.

I found Rockerfeller's letter pretty lame. It was just making a record that he was making some unspecified objections. It is the kind of thing designed to protect Rockerfeller, but does nothing to address or correct any problems. If there was a significant problem, Rockerfeller took no real action to address it. Couldn't he at least of identified the purported problem in his letter, if he was trying to do anything other than to cover his behind?

They're idiots, and they don't even know they're idiots.

But they're useful idiots in the true meaning of Lenin's phrase.

george W bush is a good man, but he's been drugged by the deputy fuhrer. It's an echo from the future - just like Melakon is going to do to Jonh Gill on stardate 2534.0. We need Bones to revive W!
http://en.wikipedia.org/wiki/Patterns_of_Force
Posted by: Republican sheep [trekkie division] on December 19, 2005 at 8:08 PM | PERMALINK

I would have used the story about when Lex Luthor (Saddam Hussein) used Red Kryptonite (http://en.wikipedia.org/wiki/Kryponite) on Superman (George W Bush), and made him rob all those banks. . .

I trusted when Bush used it, and I will trust when the next President uses it. THat is because we have checks and balances, even if Reid wants to cry, he did it, I was just watching. Quit whining when your let's get Bush activites blow up with facts.
Posted by: sinop85 on December 19, 2005 at 8:18 PM | PERMALINK

Forgive me if I don't trust Bush. He's been known to lie in the past. Honesly, I think you're kind of gullible, and maybe borderline moronic. Quit whining when your "let's trust Bush" activities result in a fascist reich.

All the President needs to do to protect the American people from terrorists is read his PDB's. He didn't do that in August of 2001 and 9/11 occurred.

The state of war is one created by an illegal invasion of a sovereign country. Many of Bush and the Republican Congress's rich friends have not sacrificed much for this war. In fact, many have profitted extremely well from this war. It appears that most of the Bush apologists have not sacrificed much for this "state of war." And, those of you who think Bush agonized over his decision to go to war in Iraq, I have a bridge in Brooklyn I'd like to sell you.

sinop85 said:
It is historical fact that this capability has been around since Clinton authorized it's use.

That's patently false.

Echelon has been around since the end of WWII, and it was developed for the NSA's use on civilian intercepts in 1974. The NSA had operated and continued to operate without oversight until Clinton got legislation through Congress for Congress to oversee the NSA's operation.

L'etat C'est moi fuckers.

W.

I trusted when Bush used it, and I will trust when the next President uses it. THat is because we have checks and balances, even if Reid wants to cry, he did it, I was just watching. Quit whining when your let's get Bush activites blow up with facts.
Posted by: sinop85 on December 19, 2005 at 8:18 PM | PERMALINK

What checks and balances are you talking about? Bush is claiming that he's free to operate outside of checks and balances.

Wingnuts think that 'briefing' certain members of congress constitute a check on the executive

What checks and balances are you talking about? Bush is claiming that he's free to operate outside of checks and balances.
Posted by: Donna on December 19, 2005 at 8:33 PM | PERMALINK

Bush's Id and Superego, I think, is what he's talking about. But then again, sometimes a cigar is just a cigar.

If there was a significant problem, Rockerfeller took no real action to address it. Couldn't he at least of identified the purported problem in his letter, if he was trying to do anything other than to cover his behind?

It's pretty obvious Rockefeller couldn't be specific about his issues in that letter precisely because it was critical that all confidential aspects of the program be kept secret, and out of that letter. Obviously, he would have been more specific if he had felt it was right to record his objections in a letter he would be keeping in a presumably unsecured place.

I have all along been puzzled by why Democrats in Congress have said nothing in public in protest about this program until recently. I had wondered whether it was failure to disclose fully by the WH, or cowardice on the part of the Dems, or whether the relevant laws and context made the issue simply murky.

Putting it all together now, it seems like it's a combination of the three.

What is obvious is that the Bush WH took advantage of the very great secrecy of the program to ramrod it through and past Congressional "oversight". At least one Democratic former Senator, Graham of Florida, said that he simply wasn't informed in any adequate way. Rockefeller may have been informed - to what degree of adequacy is unclear -- but felt unable by background simply to pronounce it a legal or constitutional outrage, though he clearly registered his protest as best he could given the secrecy of the program.

Given the general complexity of the issues here, I don't see how anyone short of a Constitutional lawyer who has kept up with the progress of these issues could really pronounce with certainty on them. (I do wish we'd hear more such people weighing in on the matter.) It's pretty understandable that Democratic Congressional leaders would NOT feel comfortable raising a public outcry without being able to consult their own lawyers about this.

I also, though, have very little doubt but that Dems didn't push back hard against the program in a public way earlier because they feared political repurcussions if they seemed to be opposing Bush on an issue of national security. I'm sure that they realized, as did Rockefeller, that there was something far wrong about what was going on, but did not wish to take the political risks of even alluding in public to the potential for problems in this general area. It would hardly have been impossible for them to find SOME way of describing the problem publicly, or simply insisting that there WAS a problem in how intelligence was being gathered that they were very concerned about, which could not have been easily smeared as "leaking" confidential information.

It will be interesting and important to get exact accounts from Democratic COngressional leaders about what they knew, and what they did about what they knew, throughout this process.

At minimum, these people have some serious explaining to do.

"The fact that FISA does not authorize the program does not mean that it violates FISA."

The entire point of FISA is to regulate spying by the executive branch. To whom else would it possibly be intended to apply? With FISA, Congress made spying on Americans illegal. FISA also provides a way to legally spy on Americans with the permission of the FISA court.

The President's argument is that he is not bound by the law. That's it, plain and simple, and he doesn't pretend otherwise. He gives us his personal assurance that he will only violate the law to make us safe, and he becomes petulant when we don't find his assurance very satisfying.

Great summary, Kevin, but best post (so far) on this subject goes to Michael Berube. We'll be talking about this one for a long time. I think it will go to the Supreme Court sooner rather than later, and I'm hopeful they'll reaffirm that our laws do indeed apply to everyone, even the president.

Donna-
you are incorrect when you state "Bush is claiming that he's free to operate outside of checks and balances." Please find any quote from Bush that supports this claim. I will listen to your argument.
Congress was briefed, and is continually briefed. Reid and Rockefeller both knew about the program and did nothing. They have oversight responsibility. They were free to follow up and demand further investigation, and didn't. Rule 4.2 of intell oversight states
"4.2 In any case in which the Committee is unable to reach a unanimous decision, separate views or reports may be presented by any member or members of the Committee."
Judicial has reviewed the precedences in the use and have ruled that this is not an illegal activity.

Windhorse
because we all know that in this country the reaction of Democrats is the true measure of whether something is illegal, not application of the relevant statutes.

Well, I expect the loyal opposition to always push back, and if they didn't, they failed in their role. I don't think Jay Rockefeller is going to appear on "Profiles in Courage" anytime soon by writing his bold sealed letter providing himself with political coverage. If he thought that Bush had gathered about powers to spy on his political opponents (which is what has been repeatedly suggested here) or just violated a federal law he ought to have stepped up and done something about it, rather than wait for someone to leak it to the NY Times.

Franko-
Actually Hugh Hewitt is a constitutional lawyer and has some interesting points on the legal matter (both sides, but obviously slanted to the right)

I've been reading the comments over at TPM, as well as Rockefeller's letter to Cheney, and a couple of questions keep nagging at me.

Rockefeller's comment in the letter about neither being a lawyer or a techie.

Bush's "there's no time so I can't go to FISA court" is ridiculous since the law allows for a wiretap to begin without authorization as long as they go within days/weeks. In all of the thousands of times Bush went to FISA, he was only turned down 1-4 times (depending on which cable channel you're watching). In the days after 9/11, Congress gave Bush everything he wanted, and then some.

The question then is what's so special about these wiretaps that Bush didn't go to FISA? Was it the method? Or the who?

That comment in Rockefeller's letter, about "where this administration is taking us" is ominous.

Anybody got any ideas about this?

frankly0 says: "Given the general complexity of the issues here, I don't see how anyone short of a Constitutional lawyer who has kept up with the progress of these issues could really pronounce with certainty on them."

Interesting. This is exactly what I stated on a prior thread only to be flamed heavily. I assume that you will all now do the same? I'd throw in one further caveat...that even an attorney working in national security law will need to know more in the way of scope and technical information than we now possess in order to give any sort of real pronouncement.

TJM writes:

This is a war-time president protecting us from people who want to kill us. Any action he takes is to protect us and this is all legal and above board.

If this is the case, why not ask a judge, as the law requires. In fact, the law (FISA) even allows you to ask a judge up to 72 hours retroactively.

Since this is the case, why in the world not ask a judge first? Answer that, and we'll take you seriously.

If FISA provides that all monitoring of relevant communications not authorized by FISA are unlawful, as someone earlier suggested, then there is an argument that the program violated FISA. But if it just authorizes certain monitoring, that does not mean all other monitoring is illegal (i.e., there could be authorization for it elsewhere).

On Rockerfeller's letter, I still don't think much of it. If Cheney provided him classified information in an oral conversation, why couldn't Rockerfeller's written response to Cheney on the same subject cover such issues specifically? He obviously thought he was keeping the letter secret, so it seems like the contents of the letter to Cheney (who obviously has clearance to receive classified information -- heck, he had given it to Rockerfeller) could have covered classified information. Seems like a very strange cover his behind letter from Rockerfeller

Shorter Al:

We have to ursurp the Constitution to protect it.

See Village, Destroying the to Save the . . .

If every member of Congress had been fully informed and they had all said, "okey-dokey," that still wouldn't make it legal. They can only change the law BY CHANGING THE LAW.

"Given the general complexity of the issues here, I don't see how anyone short of a Constitutional lawyer who has kept up with the progress of these issues could really pronounce with certainty on them."

Seems to me that ought to be his job. He's a lawmaker, so he ought to be in the business of understanding them, or giving himself a crash course in FISA and other regulations. Checks and balances, and all that.

I think there's a lot more to this story. If it proves out OK, Bush made a mistake for not bringing in oversight in a *much* stronger way. If it proves out wrong...Bush is wrong for that.

Imagine, "Al" misrepresented the conclusions of the Truong court, which found:

'Although the Truong court acknowledged that “almost all foreign intelligence investigations are in part criminal” ones, it rejected the government’s assertion that “if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.” Id. at 915.'

Judging by the number of trolls hitting this thread, the Freepers must be nervous.

If this is the case, why not ask a judge, as the law requires. In fact, the law (FISA) even allows you to ask a judge up to 72 hours retroactively.

I suspect that they didn't know what "retroactively" meant.

Amanda: I think the answer (giving the best light possible to the administration) that Rockefeller's letter may suggest is that what is at stake is a technological capability (more on this on the comments to Orin Kerr's post at volokh.com) such that following FISA procedures is not practical. This may also explain why FISA was not amended -- the ways in which it was amended would reveal such capabilities to some extent. The fact that cmdicely (and others) cannot conceive of such a capability does not mean that it doesn't exist.

Chukuriuk:

OBF, you've missed my point. "Al" is not a person posting, it is a team of keyboard-beaters spamming. Look at the number of posts, ferchrissake. I would likewise defend an individual's right to post his or her point of view. Are "we better" when we let some machine post its fliers all over a substantive discussion?

Actually, all of us conservative posters are really AI computer programs, running on a variety of hardware platforms. The size and complexity of the platform and software are directly related to how much processing power is required to effectively respond to the level of rational discourse and intelligence on any given target site.

My program, for example, is running on an Osborne One.

Oh, BTW, that's a secret.

Incidentally, I'm seeing a lot of people here who seem to be implying that informing the Intelligence Committee members isn't really "informing the Congress." Never mind that this is the entire point of the Intelligence Committees.

Is it your contention that national security matters in the future be presented to the entire House and Senate? Would they at least be able to empty the galleries first?

Can somebody, preferably a techie, explain to me how Poindexter's TIA actually works?

Rockefeller mentioned it in his letter to Cheney, and after reading the letter a few times, I'm beginning to think that Rockefeller left a trail of breadcrumbs.

I think that what Bush has authorized the NSA to do with this spy program is a technological breakthrough that is such a violation of privacy that FISA (or any American court) would rule against its' use no matter who the target of the wiretap was.

other random thoughts:

1. the NSA is under the DOD...which makes an argument for using its capabilities under the 2001 AUMF a little more tenable than say so using the FBI.

2. it'd be interesting to see what was done with statutory construction in this matter by the lawyers who vetted it-- i.e. would it matter for FISA purposes if the intercept took place abroad in a physical sense?

3. I'm curious as to whether NSA counsel signed on -- if they did, that's big, because intelligence agency attorneys tend to be quite cautious and and are generally career employees.

I'd throw in one further caveat...that even an attorney working in national security law will need to know more in the way of scope and technical information than we now possess in order to give any sort of real pronouncement.

I do think context and history and in-depth understanding of the law are important here.

But here's my bet, given what I've heard so far: that virtually ANY person competent to make these judgments, who is NOT ideologically committed, will come down hard AGAINST what the Bush has done, as a breathtaking arrogation of improper power.

Just because it's complicated doesn't mean there isn't a clear right answer to those who DO understand all the issues - whether it be science or the law.

We'll see how well my prediction holds up -- there will be inquiries.

Tbroz -- not my bro -- if you really hav