Editore"s Note
Tilting at Windmills

Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

December 20, 2005
By: Kevin Drum

WARTIME....Do President Bush's inherent constitutional powers as commander-in-chief give him the authority to override federal law and approve domestic spying by the NSA? That's certainly the justification he provided at Monday's press conference:

Do I have the legal authority to do this? And the answer is, absolutely. As I mentioned in my remarks, the legal authority is derived from the Constitution, as well as the authorization of force by the United States Congress.

Bill Kristol and Gary Schmitt support this assessment in the Washington Post today, and they've been joined by a small army of other commentators.

Of course, their argument is not that the president has the inherent power to authorize domestic surveillance anytime he wants, only that he has that power during wartime. And as near as I can tell, that's the elephant in the room that no one is really very anxious to discuss: What is "wartime"? Is George Bush really a "wartime president," as he's so fond of calling himself? Conservatives take it for granted that he is, while liberals tend to avoid the subject entirely for fear of being thought unserious about the War on Terror. But it's something that ought be brought up and discussed openly.

Consider a different war, for example. It's safe to say that whatever Bush's NSA program actually involves, no one would have batted an eyelash if FDR had approved a similar program during World War II. Experience suggests that during a period of genuine, all-out war, few people complain when a president pushes the boundaries of the law based on military necessity. But aside from World War II, what else counts as wartime?

If you count only serious hot wars, the United States has been at war for over 20 of the 65 years since 1940. That's a lot of "wartime."

However, if you count the Cold War, as conservatives generally think we should, the tally shoots up to about 50 years of war. That means the United States has been almost continuously at war during the past 65 years and given the nature of the War on Terror, we'll continue to be at war for the next several decades.

If this is how we define "wartime," it means that in the century from 1940 to 2040 the president will have had emergency wartime powers for virtually the entire time. But does that make sense? Is anyone really comfortable with the idea that three decades from now the president of the United States will have had wartime executive powers for nearly a continuous century?

Somehow we need to come to grips with this. There's "wartime" and then there's "wartime," and not all armed conflicts vest the president with emergency powers. George Bush may have the best intentions in the world and in this case he probably did have the best intentions in the world but that still doesn't mean he has the kind of plenary power Abraham Lincoln and Franklin Roosevelt exercised during their wars.

During a genuine emergency, the president's powers are at their most expansive. The rest of the time they're more restricted, whether he considers himself a wartime president or not. Right now, if George Bush needs or wants greater authority than he currently has, he should ask Congress to give it to him after all, they approve black programs all the time and are fully capable of holding closed hearings to debate sensitive national security issues. It's worth remembering that "regulation of the land and naval forces" is a power the constitution gives to Congress, and both Congress and the president ought to start taking that a little more seriously.

UPDATE: I haven't read all the comments, but a couple of emails have persuaded me that part of this post was sloppily worded. To make myself clear, then: although Presidents have increased authority during wartime, both in theory and in practice, that authority doesn't extend to deliberately violating acts of Congress. The president is required to obey the law during both war and peace. I've modified the post slightly to make that clearer.

Kevin Drum 8:43 PM Permalink | Trackbacks | Comments (352)

Bookmark and Share
 
Comments

Looks like it's time to raise the Conservative Threat Level...

Posted by: AvengingAngel on December 20, 2005 at 8:44 PM | PERMALINK

Yes, constant war helps greatly in controlling the proles. We have always been at war with Eurasia.

Posted by: George Orwell on December 20, 2005 at 8:47 PM | PERMALINK

Good point, Kevin. I'd add that this administration has consistently demonstrated an unserious attitude toward terrorism. From neglecting the 'Bin Laden determined to strike inside U.S.' memo to underfunding homeland security to bungling the aftermath of the Afghanistan invasion, Bush has shown that he only cares about terrorism inasmuch as it provides an excuse for doing things he wanted to do anyway --- cut taxes, invade Iraq, and as we are learning now, strip away American's civil liberties.

Posted by: ChristianPinko on December 20, 2005 at 8:48 PM | PERMALINK

I'm not obligated to follow the law.
Therefore, anything I do is legal.

Posted by: Shorter Bush on December 20, 2005 at 8:48 PM | PERMALINK

Regarding this Santa Claus issue, my sources tell me that the letter this young girl named Virginia has received will not stand-up(kerning,ect.). I think many supporters of this Santa Claus will be very disapponted when the truth comes out!...BAH HUMBUG!

Posted by: Tbrosz on December 20, 2005 at 8:50 PM | PERMALINK

Careful, you only get one GW (no B).

Posted by: Lucius Quinctius Cincinnatus on December 20, 2005 at 8:51 PM | PERMALINK

And to think Bill Clinton did the same thing without us even being at war...

Posted by: John on December 20, 2005 at 8:53 PM | PERMALINK

Trying to define whether or not we're technically "at war" is sort of like trying to determine what the definition of is is.

Then there's civilization. Human beings, who mutually consent to coexist under a set of common laws.

And we can choose to cast aside those laws when we feel threatened by another human's act of aggression, and need to fight for our survival. And frankly, breathing is an act of aggression against one's fellow man. Having a baby is an act of aggression. Eating is an act of aggression. Because as animals, we're always in a struggle to survive. A struggle over resources. In that kind of war, the World Trade Center was a potent and deadly weapon of mass destruction, pointed squarely at every man woman and child on the planet who is not fortunate enough to be uber-wealthy. The World Trade Center was a symbol of Western economic might, crushing all who stood before her. Until someone fought back. In a very uncivilized, brutal manner.

If we accept their view - that the World Trade Center was a valid target, as a weapon of economic warfare against them, then it follows that we can easily accept the view that torture, domestic spying, propaganda, and "collateral damage" are also acceptable.

Then what is the meaning and purpose of civilization? If we're at war, then we've always been at war. Every man for himself, in a struggle to survive. Like animals.

Posted by: Osama_Been_Forgotten on December 20, 2005 at 8:57 PM | PERMALINK

That's the beauty part about the GWOT/GSAVE -- it's forever, without end, amen. If a Democrat becomes president, then they'll scream about these wartime surveillance powers because, as they will tell us, Democrats would use them for nefarious spying on Republicans, something Bush would never do to Democrats.

Of course, given the one-party autocracy of the present incarnation of Republicans, and their lust for executive power, I doubt if we'll be seeing any small or big "d" Democratic presidents any time soon.

Posted by: R. Porrofatto on December 20, 2005 at 8:57 PM | PERMALINK

Kevin must be striking paydirt: a troll is already invoking the Holy Clenis !

Posted by: wilson46201 on December 20, 2005 at 9:00 PM | PERMALINK

Good points - but this rankled me:

George Bush may have the best intentions in the world and in this case he probably did have the best intentions in the world...

I think saying his intentions were good is giving this guy way, way too much credit. This is the callous man who fiddled while New Orleans drowned. Do you honestly believe that he was wiretapping people because he loves his fellow citizens so much he's horrified to imagine they might become victims of terrorism?

There's not doubt that he is droning on and on about how he's doing this to protect us. But come on. Like all megalomaniacs this guy doesn't give a crap about anyone but himself.

He may be doing it because his ego couldn't stand the humiliation of another attack. He may be doing it because he is frightened that the terrorists will get him (remember him flitting about in his jet in a panic during 9/11). There may be other selfish reasons I haven't thought of, such as the damage an attack would do to the Republican party in the polls, or simply the delicious thrill of accumulating more power to himself. But to somehow think that this emotionally crippled man is acting to wiretap Americans because he cares about the welfare of you and me just flies in the face of everything we've ever seen him do.

Posted by: DanM on December 20, 2005 at 9:03 PM | PERMALINK

Kevin writes: Is anyone really comfortable with the idea that three decades from now the president of the United States will have had wartime executive powers for nearly a continuous century?

I don't know if I'm "comfortable" with it, but I think I am indeed "ok" with it, as long as there exists a high-level conspiracy of ideologues who are seeking to kill large numbers of Americans. It certainly sucks that we're in such a war, but the large degree of suckitdue doesn't make it any less a part of our day to day reality. We really are at war.

Maybe the president ought to ask for congressional approval of non-warrant surveillance. But should he get it, has anything changed, substantively? Either way they'll be able to scan that email you sent abroad for key words.

And, given the enemy's use of electronic means of communication, can we afford not to monitor such things? Putting aside politics for a minute, would any of you want to deny this power to a President Clinton or Feingold?

The key safeguard in my view is not the use of warrants, but rather a strict prohibition of the improper use of "evidence" gathered in the name of national security. No IRS audits or federal (non-terrorism) indictments, in other words, resulting from clues picked up by spooks spying on German Al Qaeda cells.

Posted by: P.B. Almeida on December 20, 2005 at 9:03 PM | PERMALINK

The scariest thing about this is that Bush and the GOP have *every incentive in the world* to let another terrorist attack happen, so we can all stop our quibbly little doubts as to whether or not we're still "at war."

Seriously. Think about it. Think about the recent F grade from the 9/11 Commission two months ago.

I don't mean to get all moonbatty; I don't know whether I'm quite cynical (enough) yet to believe that Bush, for all his demonstrated cluelessness and/or mendacity, actually goes to bed at night dreaming of another great, unifying gift from Osama -- another "new Pearl Harbor" to "awaken our moral purpose" as it said in the Clinton-era PNAC docs.

What I *do* know is that his polls would spike and his arguments would prevail with most of the public.

What a nasty thought, huh.

Bob

Posted by: rmck1 on December 20, 2005 at 9:08 PM | PERMALINK

DanM: I think saying his intentions were good is giving this guy way, way too much credit.

Whether his intentions are good is irrelevant. "The road to hell is paved with good intentions" is a cliche precisely because it's so often applicable.

Posted by: alex on December 20, 2005 at 9:09 PM | PERMALINK

PB, you know full well what would be different, substantively: one approach is constitutional and one isn't.

The problem here isn't the program, per se, since none of us actually knows what the program is.

The problem is the extra-constitutional means Bush is proud of using to run the program. Maybe if we had a better sense of what the program is, we could determine whether it is, in fact, worth running, but i'm not holding my breath for that.

but it wouldn't be too much for the congress to insist that the Afghani force authorization is not meant to provide a constitutional basis for this program, and it wouldn't be too much to see the memos that justify this program and decide what price we're really being asked to pay.

Especially considering that terrible as the thought of terrorists wanting to kill millions is, it's only moments ago in the run of human civilization that we were poised on a decades-long knife edge of mutually assured destruction. And yes, sometimes people went off the rails in intrusive searches then, too, but that doesn't justify current misbehavior by the executive either.

and i also agree with DanM: there is no basis to laud bush's "intentions." it's much too late for that.

Posted by: howard on December 20, 2005 at 9:09 PM | PERMALINK

The President has only the powers explicitly given him by Congress or the Constitution. In this case, the applicable law specifically prohibited the sort of spying that the NSA has been carrying out.

It hardly matters whether we're at war or not. If special wartime powers are required, Congress can provide them.

Posted by: bad Jim on December 20, 2005 at 9:09 PM | PERMALINK

But to somehow think that this emotionally crippled man is acting to wiretap Americans because he cares about the welfare of you and me just flies in the face of everything we've ever seen him do.
Posted by: DanM on December 20, 2005 at 9:03 PM | PERMALINK

No!

Trust Bush!

He would never lie! He's absolutely sincere when he says he needs this power to fight the terrorists.

He's never lied before, at least not in a way that was absolutely provable, except when he made an honest mistake or forgot something - he's a busy man, can happen to anybody.

You've got to trust him!

Give Bush your Liberty, he'll give you Security! Honest! Trust Bush!

Otherwise there's a terrorist out there who's gonna slit my throat.

Please Trust Bush.

Bush Trusting is Patriotic!

Bush Trusting supports our troops.

Bush Trusting will help you quit smoking. It helped me. And I lost 20 pounds too. And the guy a couple of blocks over, he bought a Hummer with the tax break he got from Bush. I think it's shiny!

Posted by: Bush Truster on December 20, 2005 at 9:10 PM | PERMALINK

Well, why don't a couple of Dems propose a resolution saying we are not at war then?

Would be great for their credibility

Posted by: McAristotle on December 20, 2005 at 9:10 PM | PERMALINK

P.B.: Yes, he ought to ask Congress. After all, if the program is even remotely reasonable, Congress will approve it, what with both houses being controlled by Republicans these days.

But in fact we know that Bush consulted Congress and was told the program probably wouldn't get approved, even though he asked shortly after 9/11. Why do you think that is?

Posted by: Kevin Drum on December 20, 2005 at 9:12 PM | PERMALINK

PB:

Fear is the mind-killer.

Posted by: Osama_Been_Forgotten on December 20, 2005 at 9:13 PM | PERMALINK

Since any actual anti-terrorism spying would have been rubber-stamped by the FISA court, isn't it more likely that Bush was doing something - is doing something - deeply and thoroughly illegal? Something the FISA court wouldn't have dared to rubberstamp?

The Democrats had better plan to run their 2006 and 2008 campaigns using PGP, Fedex-ed documents and plenty of face-to-face conversations.

Posted by: Best of Intentions on December 20, 2005 at 9:13 PM | PERMALINK

P.B. Almeida:

I strongly disagree with you. Al Qaeda terrorism is not an existential threat to the USA the way the Soviet Empire was.

They were a crew of unsophisticated mongos who happened to get very lucky.

But spare me any shudders over a caliphate.

Bob

Posted by: rmck1 on December 20, 2005 at 9:13 PM | PERMALINK

And, given the enemy's use of electronic means of communication, can we afford not to monitor such things? Putting aside politics for a minute, would any of you want to deny this power to a President Clinton or Feingold?

Well, yeah. In case you missed it, a lot of people on the left (and right) were vehemently against the Clinton administration policies and support for laws which encroached upon civil liberties back in the 90's.

DOH!

Posted by: Da Objective Historian on December 20, 2005 at 9:14 PM | PERMALINK

Doesn't the Constitution stipulate that Congress must declare war? If so, has it issued a Declaration of War against Terrorism? Can one be issued against an abstract noun? If one has not been issued, how is it legitimate to say we are "At War" in the legal, constitutional sense? Does this even matter? If not, why not?

Posted by: klaus on December 20, 2005 at 9:16 PM | PERMALINK

P.B. Almeida: I don't know if I'm "comfortable" with it, but I think I am indeed "ok" with it, as long as there exists a high-level conspiracy of ideologues who are seeking to kill large numbers of Americans.

Today it's the terrorists. Yesterday it was the commies, and before that the anarchists. In 17th century Britain it was the papists. Hey, Guy Fawkes did almost blow up Parliament.

Posted by: alex on December 20, 2005 at 9:17 PM | PERMALINK

I realize this is a naive question, but aren't we only at war if we, er, declare war?

Posted by: adam on December 20, 2005 at 9:19 PM | PERMALINK

We're not actually "at war", since Congress hasn't declared war.

Since the Constitution explicitly gives Congress the power to declare war, it makes no sense for Bush to claim special Constitutional war powers until Congress actually does declare war.

Posted by: ferg on December 20, 2005 at 9:19 PM | PERMALINK

Well, why don't a couple of Dems propose a resolution saying we are not at war then?
Would be great for their credibility
Posted by: McAristotle on December 20, 2005 at 9:10 PM | PERMALINK

I think that's a great idea.

Part of the reason why Dems have been so lackluster, is that the SCLM has portrayed them as spineless surrender-monkeys. They ARE surrender-monkeys. They've surrendered to the Republicans.

When Murtha finally showed some backbone and spoke up, I think that was all the credibility that was needed. The Dems who oppose the war need to get together with the Dems who do not, and have a come to Jesus meeting with them. And hopefully, the end result would be a party split. And in the end, the interests of the left can be honestly represented, instead of being sold out by the Joe Liebermans of the world.

Posted by: Osama_Been_Forgotten on December 20, 2005 at 9:19 PM | PERMALINK

Bob's right. If being attacked by a relatively small group of fanatics means we're at war, then we were at war with the Christian Identity movement the day McVeigh bombed the Federal building -- and I don't think anyone believes or believed that.

One of the problems is that this administration has been using poetic license with words that have very specific legal meanings.

Posted by: Windhorse on December 20, 2005 at 9:21 PM | PERMALINK

Look at liberal positions during the 9-11 commission. You were all wailing for stuff to be shaken from the intelligence tree.....now your positions are reversed for temporary political advantage.

Intially, liberals criticised the US for working with local forces in Afghanistan because of their
poor human rights record and wanted more troops..but in Iraq you suddenly wished the US worked with the human rights violating Sunni iraqi Army so you didn't have to put troops down...

Not to mention your position on oil shortages and no drilling.

You guys are all over the place. Go away and form a coherent foreign policy picture - instead of reacting.

Posted by: McAristotle on December 20, 2005 at 9:22 PM | PERMALINK

PB:

Further, there's a fundamental flaw with your complaint. All well and good to say that the NSA "should" not indict over IRS findings or anything else caught in the Carnivore's maw -- but what grounds do you have to propose limitations? It's a *secret program*; its parameters aren't even fully known to the folks on the Intelligence Committees.

It's too late to just wish Bush does the right thing and only goes after "known al Qaeda connections." Do you believe these are the only people caught up in the dragnet?

I certainly don't. And it's denial, frankly, to assume otherwise.

Congress needs this on its agenda yesterday if not sooner.

Bob

Posted by: rmck1 on December 20, 2005 at 9:23 PM | PERMALINK

Well, I'm fighting a war against people who don't Trust Bush. So that means I can use any means necessary to git you liberal traitors who don't Trust Bush.

And I think that with troops fighting in two countries, two towers in smouldering ruins, two massive unprecedented deficits, most people don't care whether congress declared war or not. It's a de facto, not a de jure war.

Posted by: Bush Truster on December 20, 2005 at 9:24 PM | PERMALINK

and given the nature of the War on Terror, we'll continue to be at war for the next several decades.

I hate to be a spelling Nazi, but you really screwed up "milking" in that phrase.

Posted by: Boronx on December 20, 2005 at 9:27 PM | PERMALINK

Kevin,

I'd be careful if I were you about tossing around such generalizations as no one caring about civil liberties in WWII or no one today question the President's inherent authority during wartime. I see how these were both merely part of the setup for your actual argument about the meaning of "wartime," but there's over 200 years of strenuous debate wrapped up in those preconditions. A brief skim of the _Korematsu_ and steel seizure case would have shown you that.

Posted by: Max on December 20, 2005 at 9:28 PM | PERMALINK

When Patriots bleed and fight, then there's a real War going on, no matter what the Congress may technically say about the matter.

Here's how a TRUE American Patriot like Tom DeLay sacrifices, and fights the War on Terror:

Donors Underwrite DeLay's Deluxe Lifestyle
By LARRY MARGASAK and SHARON THEIMER, Associated Press Writers 1 hour, 5 minutes ago
WASHINGTON - As Tom DeLay became a king of campaign fundraising, he lived like one too. He visited cliff-top Caribbean resorts, golf courses designed by PGA champions and four-star restaurants all courtesy of donors who bankrolled his political money empire.
Over the past six years, the former House majority leader and his associates have visited places of luxury most Americans have never seen, often getting there aboard corporate jets arranged by lobbyists and other special interests.
Public documents reviewed by The Associated Press tell the story: at least 48 visits to golf clubs and resorts; 100 flights aboard company planes; 200 stays at hotels, many world-class; and 500 meals at restaurants, some averaging nearly $200 for a dinner for two.
Posted by: Jack Somethingoff on December 20, 2005 at 9:29 PM | PERMALINK

PB, the boogey man is under your bed, and he's going to get you. There are roughly 20,000 murders a year in the united states. That's a lot of dead americans. Somehow, law enforcement manages to handle this without every two-bit mayor and governor claiming that he needs "Wartime powers" to crack down on these people who, as you say, "kill large numbers of Americans."

If you have such low standards, then every president will always be able to cook up some excuse about why he needs such extreme powers-- he can always convince you that the threat is large enough that you can accept the consequences.

Posted by: Constantine on December 20, 2005 at 9:29 PM | PERMALINK

"...George Bush may have the best intentions in the world and in this case he probably did have the best intentions in the world ..."

Monstrous foolishness. Mr. Bush has never had any other thought than to harm the other half of America. He does not, he cannot, imagine or understand any other enemy.

His Party has spent a generation bidding for absolute power by means of totalitarian propaganda, inciting mayhem and murder against "liberals", and promising its followers that it will place them above the law.

These are crimes, and they are among the gravest crimes in human history: graver than those of previous totalitarian regimes, in precise proportion as the American people had greater potential, which now can never be realized.

These crimes must be punished. It only remains to say how this punishment is to be carried out. No other topic can be considered until that answer is arrived at.

Posted by: Frank Wilhoit on December 20, 2005 at 9:30 PM | PERMALINK

Constantine:

Well said.

Egg-fucken-zakley.

This "war of civilizations" crap is a sop to Bush's Christian base -- don't ever forget that.

"Islamo-fascists," GMAFB. You mean like the Sunni and Shi'ite "Islamo-fascists" who just won an election we paid a high price in blood and treasure to set up and legitimate?

Bob

Posted by: rmck1 on December 20, 2005 at 9:34 PM | PERMALINK


KEVIN DRUM: In other words, during a period of genuine, all-out war, it's a dead certainty that nearly everyone agrees that the president does have the power to order warrantless domestic wiretaps for purposes of gathering foreign intelligence.

Ask people if they agree with suspending the Constitution during times of war and I think you'd come up far short of "nearly everyone." Ask them if they think we should become a fascist state during times of war. Making such exceptions merely ensures that the fascists will keep us perpetually at war -- as they do.
KEVIN DRUM: George Bush may have the best intentions in the world and in this case he probably did have the best intentions in the world . . .

You are so hopeless as to be useless. Best of intentions for whom? Bush personifies corruption. His entire being is composed of dishonesty. He possesses not a single motivation that extends to the common good. That you can at this point after years of analyzing his administration still be offering up compliments of his character rather than fighting for his impeachment speaks to your own lack of commitment to the common good.


Posted by: jayarbee on December 20, 2005 at 9:34 PM | PERMALINK

we all know that if a democratic president confesses to breaking the law as W did a few days ago, the Republicans will make sure that the guilty President is immediately given the most sever punishment.

I don't know what we are discussing here. Republicans will defend this President no matter what he does, and sadly they will not have to defend him anyway as the Democrats will not do anything no matter what the Republican President doesm

Posted by: lib on December 20, 2005 at 9:36 PM | PERMALINK

These crimes must be punished. It only remains to say how this punishment is to be carried out. No other topic can be considered until that answer is arrived at.

No shit. Bush's illegal prosecution of the war on terror has set our anti-terror efforts back years. Not even the important discussion of domestic spying powers and technology can proceed fairly while his crimes go unpunished.

Posted by: Boronx on December 20, 2005 at 9:39 PM | PERMALINK

There are roughly 20,000 murders a year in the united states. That's a lot of dead americans. Somehow, law enforcement manages to handle this without every two-bit mayor and governor claiming that he needs "Wartime powers" to crack down on these people who, as you say, "kill large numbers of Americans."

Certainly you haven't forgotten about the "War on (some) Drugs" have you?

Remember the unprecedented civil-liberties grabs orchestrated in the name of "War on Drugs"?

Property seizures? Zero Tolerance? Executions were supposedly going to be only for murdering drug kingpins? Sneak and peeks? Involuntary drug-testing?

I hate to be a "Clinton did it too" person, but Reagan started this crap, and Clinton (and Dems in congress) did nothing to stop it in 8 years. True - he did appoint Shalala, and the second she said "rethink drug prohibition" he denied her before the cock crowed thrice.

Posted by: Jack Somethingoff on December 20, 2005 at 9:40 PM | PERMALINK

It's clear to me that the Constitution considers "wartime" to be the legal event of Congress "declaring war". Being engaged in hostilities somewhere does not equal "wartime", that is called "foreign policy". If being engage in hostilities anywhere in the world is considered "wartime", forget about the last century, we've been in "wartime" nearly our entire life as a nation.

Obviously, that is not the case, or we're not really a free country, since the president has nearly always been able to spy on you at his discretion.

It's time to end the era of the cowardly Congress..."wartime" only means "declaration of war". Everything else is "foreign policy", and no matter how "hot", not "wartime".

That goes for the "war on terror" too, which is not really a war, but a "police action" involving the cooperation of our allies.

If we choose, we can consider whether we should declare war on Al Qaeda, for their aggression on 9-11, and on other occasions, but we would need to carefully debate this, and determine whether "war", and being in "wartime" for the duration of decades it would take to confidently (if then) annihilate Al Qaeda, would be the right way to deal with it, as opposed to a law enforcement effort enabled by active military foreign policy elements.

Most counterterrorism experts agree that this should not be considered "war", per se, though even if it was, it would certainly focus our efforts on the real prize, and not Iraq. In this, we greatly failed the "war" on terror by letting bin Laden and Al Qaeda go in Afghanistan in favor of screwing around with Iraq.

Posted by: Jimm on December 20, 2005 at 9:40 PM | PERMALINK

"Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis-that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it."

Posted by: Antonin Scalia on December 20, 2005 at 9:42 PM | PERMALINK

Plainly, we are a country that's usually too much at war.

Posted by: Boronx on December 20, 2005 at 9:45 PM | PERMALINK

There has been no declaration of war. And I'm not at all sure that even FDR had the authority to override the Constitution.
But beyond that, in the end the tension here is between the need for physical safety and the right to constituional freedoms. Our founders pledged their lives, fortunes and sacred honors to what?
Not to their own safety and prosperity. Some lost their lives and their fortunes.
No - they risked thier lives and fortunes to establish the freedoms that this administration sees as disposable to physical safety.
Kevin shoul rethink his postion (if I understand it).
Our freedoms are more important than absolute physical safety.

Posted by: Doc Mueller on December 20, 2005 at 9:45 PM | PERMALINK

The WM has had a number of excellent articles on this very issue. Our Constitution has an excellent test for when we are at war -- Congress has issued a declaration for one. The Founding Fathers may have been less than enlightening on any number of modern issues, but they were adamant on who got to determine whether the country was at war. The Georges were forever sending their subjects off to die in some hole because Cousin Frederick of Anhalt-Weinershnitzl wanted 30 acres of Apfelstruedl-Heidenheimer. The Founders wanted to avoid that above pretty much anything else. If there was to be a war, it had to be a popular decision.

The Dems need to scream about this. If Bush believes we're at war, make him seek a declaration. Damn the polls; this is just right.

Posted by: Karen Cox on December 20, 2005 at 9:45 PM | PERMALINK

Jack Somethingoff:

No, I was a Clinton supporter, and you're absolutely correct. He also cut loose Jocelyn Elders when she *egads!* made some comments along the lines that masturbation was a part of growing up.

A lot of the FBI infrastructure and methodology in the Patriot Act is a direct outgrowth of the WoD.

Bob

Posted by: rmck1 on December 20, 2005 at 9:46 PM | PERMALINK

Obviously, that is not the case, or we're not really a free country, since the president has nearly always been able to spy on you at his discretion.

It's time to end the era of the cowardly Congress..."wartime" only means "declaration of war". Everything else is "foreign policy", and no matter how "hot", not "wartime".

Are we talking about another Constitutional Amendment? "Strict legal definition requirement for Wartime"....

Posted by: Osama_Been_Forgotten on December 20, 2005 at 9:47 PM | PERMALINK

Jayarbee : I found Kevin's balancing act of seeming fair so ironic in these circumstances that it was reading just as effectively as "damning with faint praise". Tbrosz isn't the only one making quaint declarations.

Posted by: opit on December 20, 2005 at 9:48 PM | PERMALINK

Good post, Kevin. Very badly needs to be said.

The Americans want to believe the image they present to the world is a heroic white-hatted cowboy doer of good, galloping confidently into the future astride three horses of freedom, military and economic power.

The image the world sees is actually closer to a dangerous, thumb sucking, spoiled rich kid, irrationally unleashing the dogs of war at every sound that goes bump in the night.

I have been on this Earth for more than sixty years, which has allowed me to observe a diverse parade of national hysterias that all shared the same outcome: they never amounted to anything. We passed through the looming Commie takeover, the 50,000 disappeared children that didnt, molesters in every daycare center, the national poison scare emanating from seven Tylenol deaths, the Anthrax scare, SARS, bird flue is still with us and of course, the big one: WATCH OUT, THERES A TERRORIST BEHIND THAT TREE!

Ah, but we are now in a new era, which demands new methods, says Goergie Porgie, but the only thing new about it are the faces of the demanders. In truth we have the same old political party, trying to turn the same old American need to scare themselves silly to their own private advantage.

Posted by: James of DC on December 20, 2005 at 9:49 PM | PERMALINK

Rembember those photos of Bush holding hands with King Abdullah?

Remember Bush's pal, ex-ambassador Prince Bandar, who was briefed on the Iraq war plans before Powell, though it was stamped "NOFOR", who's wife gave rent money to the 9/11 terrorists?

Do you think, when Bush quashes taps of these guys phones, that's he's doing so with the best of intentions?

Posted by: Boronx on December 20, 2005 at 9:50 PM | PERMALINK

Bullfuck. The President can't do nearly anything he wants wartime or no wartime. He can do what he wants with the military.

Posted by: SW on December 20, 2005 at 9:50 PM | PERMALINK

Karen Cox:

You should've called it Asshat-Weinerschnitzl -- but other than that, you couldn't possiblibly be more correct.

Add to this the prophetic words of true war-hero president Dwight D. Eiesenhower about the growing extra-legal power of the Military Industrial Complex.

Bob

Posted by: rmck1 on December 20, 2005 at 9:50 PM | PERMALINK

Not only does there have to be a declaration of war, but even outside of an explicit theater of war, the executive is supposed to be prevented from bypassing the system of checks and balances as long as the other two branches can still function. If the American courts are still functioning in the city in which you want to search a house, you have to ask the court for permission. Period.

Posted by: Constantine on December 20, 2005 at 9:51 PM | PERMALINK

Are we talking about another Constitutional Amendment? "Strict legal definition requirement for Wartime"....

I'm not sure. In this case, I probably share your skepticism from the prior argument, in that an amendment would be far less preferable than just a little backbone from our congressmembers, but can we really count on that?

I would be happy with a legal definition, in whatever form, that strictly limits "wartime" to the event during a "declaration of war". Everything else would be "foreign policy", or a "police action", at least legally (W. Bush could continue to talk colloquially about "wartime" if he chooses, but legally we should make clear we are not in "wartime").

Posted by: Jimm on December 20, 2005 at 9:52 PM | PERMALINK

I would be happy with a legal definition, in whatever form, that strictly limits "wartime" to the event during a "declaration of war". Everything else would be "foreign policy", or a "police action", at least legally

Actually, I would be most happy with a judicial interpretation of the Constitution along these lines. That is certainly how I read it.

Send the case before the Supreme Court, and if they deny this basic understanding, then we should go with the amendment process, if not through Congress, than through the states.

Posted by: Jimm on December 20, 2005 at 9:53 PM | PERMALINK

McAristotle: No liberal argued for the President to use extra-Constitutional powers after 9-11; we just wanted him to actually fucking USE the ones the Constitution granted him already, which he did not.

He didn't even use his power of readin'.

And Afghanistan is not Iraq, doofus. Different situations on the ground, and liberals wouldn't have invaded Iraq at all in the first place -- idiot boy's war of choice forced the U.S. into an impossible situation.

Nothing else you said makes any sense either.

Posted by: mercury on December 20, 2005 at 9:54 PM | PERMALINK

"it's a dead certainty that nearly everyone agrees that the president does have the power to order warrantless domestic wiretaps for purposes of gathering foreign intelligence."

what a F'ing load of crap!!!. Count me out. The frickin' FISA law allows obtaining the warrant within 72 AFTER actually doing the wiretap, what could be easier. A little too tough to adhere to the most mimimal of oversight imaginable? what a bunch of power hunger whores; and Kevin is the pliant sheep ready to be butchered on their alter of insatiable power lust.

there is absolutely no reason for warrantless wiretaps, EVER, under any circumstances - period.

Posted by: justfred on December 20, 2005 at 9:55 PM | PERMALINK

When Congress declares war we are at war. Until then, as Bush prefers, anything goes. This mess we are in is as much the fault of the Senate and Congress not having a vote to declare war upon Iraq. Even the Geneva convention would need to be adhered to in that case. Imagine that!

Posted by: David Caby on December 20, 2005 at 9:55 PM | PERMALINK

George Bush may have the best intentions in the world and in this case he probably did have the best intentions in the world but that still doesn't mean he has the kind of plenary power...

What the hell? Why on Earth, Kevin, are you presuming that Bush had good intentions in violating a law -- secretly at first, and then defiantly -- the observance of which would have had exactly zero impact on any genuine terroist threat? Especially when the assertion of this power seems nothing but a naked endorsement of John Yoo's odious "wartime presidents have unlimited power" theory? There's no good intention at all discernable in Bush's actions, especially given that he demonstrated his feeble commitment to actually defending the US against real threats by his inaction between August 6 and September 11, 2001.

Posted by: Gregory on December 20, 2005 at 9:55 PM | PERMALINK

Bullfuck. The President can't do nearly anything he wants wartime or no wartime. He can do what he wants with the military.
Posted by: SW on December 20, 2005 at 9:50 PM | PERMALINK

Tell me, SW.

Can Bush force me to house soldiers in my home? He hasn't. Yet. But you seem to think he has that legal right.

(in fact, they were forcing Iraqis to house US soldiers last year).

Posted by: Osama_Been_Forgotten on December 20, 2005 at 9:57 PM | PERMALINK

a good discussion is here as well:

http://fallbackbelmont.blogspot.com/2005/12/tightrope.html

Posted by: papageno on December 20, 2005 at 9:57 PM | PERMALINK

Our freedoms are more important than absolute physical safety.

Damn straight. Hundreds of thousands of Americans have died to protect our freedoms, and we're not about to give them up for a bunch of thugs in caves on the other side of the planet nor their dirtbag promoter in the White House.

Posted by: Boronx on December 20, 2005 at 9:57 PM | PERMALINK

The frickin' FISA law allows obtaining the warrant within 72 AFTER actually doing the wiretap, what could be easier.

This window could easily be extended during "wartime" as well, to accomodate the commander-in-chief. Say make it 2 weeks. Or a month. In any event, whether in "wartime" or no, we should never allow unchecked warrantless searches, or unmediated suspension of habeas corpus, for any reason, and our history and Abe Lincoln be damned.

Posted by: Jimm on December 20, 2005 at 9:58 PM | PERMALINK

If Bush wants to rely upon the Constitution, that would be great. Only Congress can delare war. It hasn't. Bush is not a war president, and therefore, he CANNOT claim powers only afforded during war. Let's start the congressional hearings NOW!

Posted by: Scooter on December 20, 2005 at 9:59 PM | PERMALINK

Sometimes, we have to stop being children and constantly looking at what was done before, what has been done, for guidance on the mistakes that have come before us, and go back ourselves to the Constitution, which is pretty damn clear about this stuff, and set things right.

Like adults. Responsible, brave, intelligent adults.

Posted by: Jimm on December 20, 2005 at 10:00 PM | PERMALINK

Further to ferg and Jimm . . .

If we're not at war, according to the constitutional definition, then the president must get specific permission from Congress for each wartime power he uses or pass a resolution granting him carte blanche wartime powers, specifying an end date for those powers.

Posted by: DevilDog on December 20, 2005 at 10:00 PM | PERMALINK

Technically speaking we are not at war.

We are in alliance with the government of Iraq, such as it is.

That means Iraq is a police action.

Not the same thing now is it.

Bush likes to claim he's a war president for the very reason that under our system the president's powers are enhanced during war. That by the way is why we have only 150,000 troops over there instead of 500,000 and why we don't have enough over there to secure the borders let alone secure the country.

The point is that there must always be a war so Bush can have justification for spying on you and me.

I say he's criminal bumb, and needs to be impeached.

Posted by: E Publius on December 20, 2005 at 10:02 PM | PERMALINK

Here's an idea:

How about. NO, the President doesn't have the authority to ignore the law and suspend provisions of the Constitution just because we're at war. Nowhere in the Constitution is this stated, and it's most certianly NOT a power that the founding fathers would have agreed was implicitly granted to the office.

If wartime requires special circumstances, then make those circumstances law. If the situation is such that the matter is urgent, legislation can be passed that grants necessary powers in very short order. Look at how fast the USA PATRIOT act got rammed through congress.

It's stupid and dangerous to give any one person the power to infringe upon civil rights and abrogate legal respoonsibilities merely because a war happens to be going on. Far better to exactly codify what the limitations of rights are, rather than making them subject to the whims of an all powerful executive branch leader.

Checks and ballances are a good idea, all the time. Wartime makes them doubly important.

Posted by: phleabo on December 20, 2005 at 10:02 PM | PERMALINK

In other words, during a period of genuine, all-out war, it's a dead certainty that nearly everyone agrees that the president does have the power to order warrantless domestic wiretaps for purposes of gathering foreign intelligence.

No Kevin, nearly everyone does not agree to this.

Posted by: Thinker on December 20, 2005 at 10:03 PM | PERMALINK

It seems to me that a good definition of being "at war" would be that there's a clear and immediate threat that the nation will be destroyed. That means we were at war against the British (1776 and 1812), against the Confederacy, and against the Axis powers. Given MAD, the Soviet Union probably also makes the cut. WWI, Korea, Vietnam, Grenada, drugs, Iraq I, Iraq II, and terror aren't wars (maybe WWI). America is not threatened with destruction by the terrorists or by Iraq.

At least it's a relatively bright line to draw, a definition that can actually be applied to a given circumstance.

Posted by: Bob Munck on December 20, 2005 at 10:03 PM | PERMALINK

It was nearly 63 years ago, after Pearl Harbor when another President, a Democrat, Franklin Delano Roosevelt, using his inherent authority as commander and chief, with popular support, interned thousands of innocent American citizens of Japanese, German, and Italian descent into domestic camps. It was popular. We were at war. People were scared. It was about national security. Roosevelt's actions were upheld by the Courts of his day. Remember this when you talk about giving one man, even a good man, unlimited and unfettered power.

Posted by: aline on December 20, 2005 at 10:03 PM | PERMALINK

WRT war declaration:

In the age of nuclear weapons, there has to be nuance to warfare, for the simple reason that total war is not an option.

Posted by: Boronx on December 20, 2005 at 10:04 PM | PERMALINK

Kevin proves himself to be an imbecile - go back on vacation, this isn't in the least bit cute.

"during a period of genuine, all-out war, it's a dead certainty that nearly everyone agrees that the president does have the power to order warrantless domestic wiretaps for purposes of gathering foreign intelligence." Bullshit!

"If this is how we define "wartime,..." The constitution defines how we define wartime - Congress declares it - end of story.

"During a genuine emergency, the president can do nearly anything he wants." Kevin is deranged.


Posted by: zoot on December 20, 2005 at 10:04 PM | PERMALINK

If we're not at war, according to the constitutional definition, then the president must get specific permission from Congress for each wartime power he uses or pass a resolution granting him carte blanche wartime powers, specifying an end date for those powers.

I like the first part, because it assures accountability and makes clear where the president intends to act unconstitutionally. If there is concern about the enemy knowing that we plan to violate this constitutional right but not others (doesn't make a lot of sense to me to be worried about this), there can perhaps be a mechanism set up to keep it within a particular classified committee, but this would still have to be up for vote for accountability and approval.

The second part I question because why not just declare war? If there is some practical reason we cannot declare war but still must give carte blanche wartime powers to the president, I need to hear what that is (which is to say I'm open to it, but can't at the moment imagine why we just wouldn't declare war).

Posted by: Jimm on December 20, 2005 at 10:05 PM | PERMALINK

David Caby wrote this: This mess we are in is as much the fault of the Senate and Congress not having a vote to declare war upon Iraq.

maybe somebody can combine the two war resolutions into one (autumn 2002, spring 2003), and add a line at the bottom that says "This means war" and introduce it into the Congress.

The very same Congress that, not incidentally, just voted its insistence that the US stay in Iraq until achieving victory. Since Congress voted to authorize war, voted to support war, voted to pay for war, and has now voted for victory in war, how can anybody in the "reality based community" seriously doubt that the US is "at war"? Is it because we have suffered fewer casualties over a longer period of time than at Devil's Den or Omaha Beach?

Posted by: papageno on December 20, 2005 at 10:06 PM | PERMALINK

I have been on this Earth for more than sixty years, which has allowed me to observe a diverse parade of national hysterias that all shared the same outcome: they never amounted to anything. We passed through the looming Commie takeover, the 50,000 disappeared children that didnt, molesters in every daycare center, the national poison scare emanating from seven Tylenol deaths, the Anthrax scare, SARS, bird flue is still with us and of course, the big one: WATCH OUT, THERES A TERRORIST BEHIND THAT TREE!

Yeah, whatever happend to that Mad Cow scare? What about those three guys in Idaho that came down with a mysterious "brain wasting disease" that - nope, wasn't Mad Cow - nothing to see here, move along. . .

Posted by: Osama_Been_Forgotten on December 20, 2005 at 10:08 PM | PERMALINK

It was about national security. Roosevelt's actions were upheld by the Courts of his day. Remember this when you talk about giving one man, even a good man, unlimited and unfettered power.

Nobody, then or now, was talking about giving anybody unlimited or unfettered power.

Posted by: papageno on December 20, 2005 at 10:09 PM | PERMALINK

Since Congress voted to authorize war,

No, congress voted a conditional authorization. Conditions that were never met.

Posted by: Boronx on December 20, 2005 at 10:10 PM | PERMALINK

"In the age of nuclear weapons, there has to be nuance to warfare, for the simple reason that total war is not an option."

oh now ain't that something...when it comes to invasion, its black or white, 'you're either with us or you're with the terrerists'. But when it comes to the constitutional declaration of war all of a sudden we have nuance.

invasion with open ended death and destruction: black or white;
legal declaration and accountability: nuanced smoke and mirrors

repukelicans are infinitely fucked up!

Posted by: gak on December 20, 2005 at 10:11 PM | PERMALINK

And the incline starts on that slippery slope. From the NYT:

Spying Program Snared U.S. Calls

By JAMES RISEN and ERIC LICHTBLAU
Published: December 21, 2005

WASHINGTON, Dec. 20 - A surveillance program approved by President
Bush to conduct eavesdropping without warrants has captured what are
purely domestic communications in some cases, despite a requirement by
the White House that one end of the intercepted conversations take
place on foreign soil, officials say.

The officials say the National Security Agency's interception of a
small number of communications between people within the United States
was apparently accidental, and was caused by technical glitches at the
National Security Agency in determining whether a communication was in
fact "international."

Telecommunications experts say the issue points up troubling
logistical questions about the program. At a time when communications
networks are increasingly globalized, it is sometimes difficult even
for the N.S.A. to determine whether someone is inside or outside the
United States when making a cellphone call or sending an e-mail
message. As a result, people that the security agency may think are
outside the United States are actually on American soil.

As political pressure intensified Tuesday over the program, Vice
President Dick Cheney cast it as part of the administration's efforts
to assert broader presidential power. [Page A22.]

Eavesdropping on communications between two people who are both inside
the United States is prohibited under Mr. Bush's order allowing some
domestic surveillance.

But in at least one instance, someone using an international cellphone
was thought to be outside the United States when in fact both people
in the conversation were in the country. Officials, who spoke on
condition of anonymity because the program remains classified, would
not discuss the number of accidental intercepts, but the total is
thought to represent a very small fraction of the total number of
wiretaps that Mr. Bush has authorized without getting warrants. In
all, officials say the program has been used to eavesdrop on as many
as 500 people at any one time, with the total number of people
reaching perhaps into the thousands in the last three years.

Mr. Bush and his senior aides have emphasized since the disclosure of
the program's existence last week that the president's executive order
applied only to cases where one party on a call or e-mail message was
outside the United States.

Gen. Michael V. Hayden, the former N.S.A. director who is now the
second-ranking intelligence official in the country, was asked at a
White House briefing this week whether there had been any "purely
domestic" intercepts under the program.

"The authorization given to N.S.A. by the president requires that one
end of these communications has to be outside the United States,"
General Hayden answered. "I can assure you, by the physics of the
intercept, by how we actually conduct our activities, that one end of
these communications are always outside the United States."

Attorney General Alberto R. Gonzales also emphasized that the order
only applied to international communications. "People are running
around saying that the United States is somehow spying on American
citizens calling their neighbors," he said. "Very, very important to
understand that one party to the communication has to be outside the
United States."

A spokeswoman for the office of national intelligence declined comment
on whether the N.S.A. had intercepted any purely domestic
communications. "We'll stand by what General Hayden said in his
statement," said the spokeswoman, Judy Emmel.

The Bush administration has not released the guidelines that the
N.S.A. uses in determining who is suspected of having links to Al
Qaeda and may be a target under the program. General Hayden said the
determination was made by operational people at the agency and "must
be signed off by a shift supervisor," with the process closely
scrutinized by officials at the agency, the Justice Department and
elsewhere.

But questions about the legal and operational oversight of the program
last year prompted the administration to suspend aspects of it
temporarily and put in place tighter restrictions on the procedures
used to target suspects, said people with knowledge of the program.
The judge who oversees the secret court that authorizes intelligence
warrants - and which has been largely bypassed by the program - also
raised concerns about aspects of the program.

The concerns led to a secret audit, which did not reveal any abuses in
the targeting of suspects or instances in which purely domestic
communications were monitored, said officials familiar with the
classified findings.

General Hayden, at this week's briefing, would not discuss many
technical aspects of the program and did not answer directly when
asked whether the program was used to eavesdrop on people who should
not have been targeted. But he indicated that N.S.A. operational
personnel sometimes decide to stop surveillance of a suspect when the
eavesdropping has not produced relevant leads on terror cases.

"We can't waste resources on targets that simply don't provide
valuable information, and when we decide that is the case," the
decision on whether a target is "worthwhile" is usually made in days
or weeks, he said.

National security and telecommunications experts said that even if the
N.S.A. seeks to adhere closely to the rules that Mr. Bush has set, the
logistics of the program may make it difficult to ensure that the
rules are being followed.

With roaming cellphones, internationally routed e-mails, and
voice-over Internet technology, "it's often tough to find out where a
call started and ended," said Robert Morris, a former senior scientist
at the N.S.A. who is now retired. "The N.S.A. is good at it, but it's
difficult even for them. Where a call actually came from is often a
mystery."

Posted by: rmck1 on December 20, 2005 at 10:12 PM | PERMALINK

For the record, it is no "dead certainty" to me that during wartime the president can do whatever he pleases. For instance, the president can't drop a bomb on an Arab neighborhood in order to assure no traitors are in the group. He may try, as FDR, to herd these people into camps, which I also disagree with, but this is already an example of a "check" on the commander-in-chief. He cannot just murder people on his whim, or start rewriting the constitution. Therefore, there are always checks on the president, he is not above the law, and we should not assume that he can suspend any and all constitutional rights at his discretion during wartime.

Second, the Bill of Rights was passed AFTER the Constitution, and obviously was meant to give context to federal power in terms of the individual (the people). It is questionable in my mind that the president, or the federal state, in peacetime or wartime, ever has the discretion to exercise more power than the Constitution gives (the state has no power which is not given explicitly), and which the Bill of Rights explicitly limits.

Where in the Constitution, or in the Bill of Rights, does it say that the president or the federal government may suspend the rights granted in the Bill of Rights?

Posted by: Jimm on December 20, 2005 at 10:13 PM | PERMALINK

Passed into law in 2001:

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

The law is on Bush's side. He is authorized to take action to prevent terrorism.

Posted by: Fred Eper on December 20, 2005 at 10:15 PM | PERMALINK

Since Congress voted to authorize war, voted to support war, voted to pay for war, and has now voted for victory in war, how can anybody in the "reality based community" seriously doubt that the US is "at war"?

We are not "at war" with Iraq or Afghanistan. It's that simple. As in prior periods of history, we now have military forces operating as part of our foreign policy objectives, and we are funding them.

You will not find an expert in the world who will agree that we are "at war" with Iraq. Indeed, we are partners with Iraq now. The same situation is in Afghanistan.

Throughout most of our history we've had troops fighting somewhere, but very rarely was this "wartime", and in most cases was merely "foreign policy" by force.

Posted by: Jimm on December 20, 2005 at 10:17 PM | PERMALINK

Well, the founding fathers seemed to have a reasonbably clear idea of when the nation could be said to be at war or not. And it seems to me that those who prize a strict construction of the Constitution should want to see that adhered to. "War" is when Congress declares war--that's when you get to call yourself a "war president," and that's when the president's Commander in Chief role assumes the authority to take extraordinary measures required by the emergency at hand. But, oddly, these supposed strict constructionists are so only when the issue is the rights of workers or ordinary folk. On the "war" question, they go all loosy-goosey (could it be they're in love?). But then, consistency has never been their strong suit: it was the same folk who screamed loudest about "states' raats" that demanded the Fugitive Slave Act.

Posted by: johnny on December 20, 2005 at 10:18 PM | PERMALINK

Kevin: "During a genuine emergency, the president can do nearly anything he wants."

Gee, that's a basis for a POTUS to gin up "genuine" emergencies for the rest of US history. As long as he (or she) can get us into wars, the president can have unlimited power forever. Since presidents don't bother to ask Congress for declarations of war any longer, they can just declare war whenever they want a totally free hand. Hmmm, think maybe Congress should get back into the "war declaration" business again? If Congress is too timid for the task, maybe we need a national election to declare war from now on. After all, there ought to be some restraints.

Posted by: Taobhan on December 20, 2005 at 10:18 PM | PERMALINK

FYI:
An EXCELLENT technical analysis on what we know (through educated speculation) so far about possible technologies behind this new capability. . .

http://arstechnica.com/news.ars/post/20051220-5808.html

Posted by: Osama_Been_Forgotten on December 20, 2005 at 10:19 PM | PERMALINK

Fred,

Necessary and appropriate FORCE. Surveilance isn't force, and anyone but the most utterly dishonest apologist would read the text of the resolution as indicating that the use of military action abroad was what was being authorized.

Posted by: phleabo on December 20, 2005 at 10:19 PM | PERMALINK

the stupid thing is that half or more of the dimwits think the bushcriminal is referring to Iraq when he says 'we are at war', when what the sick prick is really referring to is his open-ended, defined only by him, 100% politically motivated and manipulated Wah On Terra, fitting no known definition of war. Altogether now sheople, let us hear you bleat: bbbbbbaaaaaaaaaaaa!

Posted by: justfred on December 20, 2005 at 10:21 PM | PERMALINK

compared to most of the commentary here, G.W.Bush is a genius. consider this from someone up above: Since the Constitution explicitly gives Congress the power to declare war, it makes no sense for Bush to claim special Constitutional war powers until Congress actually does declare war.

Really, do a lot of you here think that the Union declared war on the Confederacy? Or that the US declared war against any of the following: communism, the USSR, North Korea, China? (I mention communism and the USSR because of the claim by somebody up above that the USSR was an "existential" threat to the US but terrorism isn't.) How many here actually think that the US waited until Pearl Harbor before waging war against Germany, including the use of secret communications and espionage? Well US servicemen died in combat and killed Germans and the government engaged in domestic espionage before the declaration of war.

Posted by: papageno on December 20, 2005 at 10:21 PM | PERMALINK

Fred Eper and papageno:

Who and/or what are we supposedly "at war" with?

A handful (20 to 200) of shunned al Qaeda ideologues?

At *war*? With the United States of America?

Surely you jest.

Bob

Posted by: rmck1 on December 20, 2005 at 10:21 PM | PERMALINK

This is why I constantly mock the notion that we can "win" in Iraq. There is no victory, but the one we've already gained in deposing Saddam. At this point, we can only "succeed", relatively better or worse, or "fail", in terms of our foreign policy objectives insofar as we'd like Iraq to end up.

How can we "win" a war that is not a war? We are partners with Iraq now, not at war with them. Thus, we can no longer win any "war" in Iraq, because there is none. There are law and order issues in Iraq, perhaps even a civil war, but that's their fight, and not our war, unless we take sides in the civil war, but we have explicitly not taken sides, aside from targeting foreign terrorists, a relatively small minority and not an element of any civil war, per se.

Posted by: Jimm on December 20, 2005 at 10:22 PM | PERMALINK

papageno, during the "Cold War", it was not okay to perform warrantless searches.

now, a few airplanes crash into buildings and it is?

end of argument.

Posted by: Jimm on December 20, 2005 at 10:24 PM | PERMALINK

Speaking from an IT background, I think this is all about pattern analysis of billions of Terabytes of archived emails and phone calls. The initial pattern recognition (which produces possible targets) is done with the archived data (public and private) and then they collect from the chosen targets in real time. Without the archived data, they could never make the connections because of changing phone numbers and email addresses.

Echelon...Able Danger...TIA...connect the dots and you get the picture. (Think FICO scores for terrorists)

The problem is if it's possible to discover information patterns for jihadists, it's just as possible to discover patterns for other groups like... political enemies.

Posted by: Ex - Republican Yankee on December 20, 2005 at 10:24 PM | PERMALINK

Surveilance isn't force

Yes it is.

Force, according to Merriam-Webster, is "strength or energy exerted or brought to bear, or cause of motion or change, or active power"

Monitoring terrorists is a move to try and find out about and stop their plans of terror.

Therefore it is a move of force to stop terrorism.

Posted by: Fred Eper on December 20, 2005 at 10:25 PM | PERMALINK

Completely ignore the 9/11 commission recommendations? CHECK.

Do nothing about securing our borders? CHECK.

Spy on Americans, because THAT will make us safer. CHECKMATE.

Posted by: mikebsr on December 20, 2005 at 10:27 PM | PERMALINK

There are two issues:

1. What constitutes wartime?

2. What powers are allowed the president during wartime?

As regards #1, just because American troops are fighting somewhere does not mean we are in "wartime". Almost our whole history we've conducted foreign policy by force with troops on the ground. "Wartime" is something more specific and rare, and that involves the entire nation.

As regards #2, it's clear that the president can never act unchecked, since even during wartime, he can't just start murdering arbitarily and rewriting the Constitution. Thus, if we are to say that he has special powers during "wartime", are these described somewhere, or is this just a fictional nebula that plagues us?

Posted by: Jimm on December 20, 2005 at 10:28 PM | PERMALINK

Dear Mr. Eper,

Your assertion only make sense if one can freely equate "force" with "suspend civil liberties". The fact that we have been encouraged to "go shopping" to "win" this war would argue against the presumed serious nature of this "national emergency".

But defenders of Bush policy here simply reflect his fear and cowardice. Careful of the company you chose to keep.

Posted by: bobbyp on December 20, 2005 at 10:28 PM | PERMALINK

Bush has shown that he only cares about terrorism inasmuch as it provides an excuse for doing things he wanted to do anyway --- cut taxes, invade Iraq, and as we are learning now, strip away American's civil liberties.

So true, and so frequently neglected a point, that I just wanted to read it again.

...as long as there exists a high-level conspiracy of ideologues who are seeking to kill large numbers of Americans

Um, actually there's little reason to believe that AQ has any particular need for "large numbers" of dead Americans, except as symbols used to terrify much larger numbers of Americans & therefore achieve their political goals... that's the point of terrorism. They don't want our land & mostly don't want our stuff, and their main cultural gripes with us are virtually indistinguishable from those of our own Christian fundamentalists. They want us scared (hence the term "terrorism") and Republicans are more than happy to oblige them on that point-- hell, even the reactionary braying & belligerence plays into their hands, which goes to show that they're more politically sophisticated than most Americans. There's certainly some basis for the old "they hate us for our freedom" canard, but since we're apparently losing those freedoms very quickly due [allegedly] to their actions, I'll say without any reservation that they're the ones winning this so-called war.

Posted by: latts on December 20, 2005 at 10:28 PM | PERMALINK

Bush, the best intentions in the world? Jeez, Kevin, find another way to make yourself sound "moderate."

The man's a sociopath. There's not an honest intention in him.

Posted by: Jethro on December 20, 2005 at 10:29 PM | PERMALINK

Cueing nuclear plant attack in three.. two.. one..

Posted by: queridobobo on December 20, 2005 at 10:31 PM | PERMALINK

Surveillance is not force because the subject of surveillance is not impeded in its motion or forced to change course. Indeed, the object of surveillance is explicitly not to change this course, and instead to observe it unawares, and in some ways is the opposite of force.

Posted by: Jimm on December 20, 2005 at 10:32 PM | PERMALINK

He is a video of King George W lying in 2004 about wiretaps. Copy, paste and go.

http://www.michaelmoore.com/_images/splash/georgelies4202004.mov

Posted by: R Baker on December 20, 2005 at 10:32 PM | PERMALINK

"Therefore it is a move of force to stop terrorism."

Wrong, Fred. You assume a link between this "force" and a "cause of motion or change, or active power" which is logically and factually false in this instance. Your whole edifice is supported by an underlying soft layer of crap.

But do enjoy your fear and anger for all the good it will do you.

Posted by: bobbyp on December 20, 2005 at 10:34 PM | PERMALINK

Don't get me wrong; Islamist terrorism is a genuine threat.

But it's not properly speaking something that it's possible to declare war on, either -- except in a very open-ended, symbolic sense, like the War on Drugs.

We have many threats to our nation. Domestic homicide certainly ranks higher in terms of numbers of Americans killed per capita.

Bob

Posted by: rmck1 on December 20, 2005 at 10:35 PM | PERMALINK

So if I pre-emptively invade another country - then can I have my plenary powers?


Posted by: Tiparillo on December 20, 2005 at 10:36 PM | PERMALINK

latts, very good point.

I also think people like McAristotle might be working for the terrorists. It's his job to egg on the conservatives making sure GW Bush continues to do the very things that AQ wants.

Posted by: WhoSays on December 20, 2005 at 10:37 PM | PERMALINK

i've been spending way too much time on this lately, as a law student cramming for a con law final. according to the Supremes, the AUMF is in fact authorization of war. but one against those "involved in september 11", and that the court interpreted might only apply until we leave afghanistan.

the thing is, if congress doesn't do anything about it, then what? its hard to argue for the judiciary to fix this. in fact, about the only one of them who wants to force the prez to specifically get authorization to suspend Bill of Rights rights seems to be scalia.

this is why more people need to talk about how terrifying a war with no limits is. Yoo argues, and bush seems to believe, that AUMF gives him sole authority to decide what's proper, and all authority act as such. because terror is a tactic and not an enemy, and b/c AQ is whoever calls themselves AQ on any given day, there's no reason to believe this will ever end, ever.

the founders were freaking terrified of executive power, and limited the hell out of it. we've basically given up on federalism (iowa will not protect your rights, i'm afraid), and congress seems content to pass vague resolutions that let them take credit when things go well, and cast blame when they don't. that way they can focus on fundraising, gerrymandering, and avoiding accountability. i would love to see the court try and hold their feet to the fire, but its hard to make them do so. even the fantastic opinion by jackon in the steel seizure case recognizes that if congress just allows the exec to keep exercizing a power he shouldn't have, eventually it gets legitimized..

the thing that sucks is that we really should be worried about terrorism as a totally new threat. in a way, 9-11 was pretty mild, given that technology is ever increasing which allows fewer and fewer individuals to potentially kill more and more. the founders probably didn't anticipate dirty bombs and smallpox, and deterrence is pretty much out the window. but fer chissakes, the debate about how to deal with it can and should be worked into the framework that got us through a civil war, a couple ww's, and a cold war threat of global nuclear war with a surprisingly small number of acts to be embarassed about, in the grand scheme of history.

but the exec has every incentive to argue for maximum power. they're ultimately seen as responsible for what happens, so that's natural. if congress doesn't limit it, it is a tough sell for the cts. they're not elected, they're not popular w/ anyone right now, and its hard to make congress do its job. so that leaves we the people. the bitch of it is that the fact that we're at war makes it so convenient for any prez supporters to scream "we're at war! you're killing america!" whenever anything insufficiently supportive of the admin is said.

i think its more of a scandal the times sat on this before the election. at the very least, maybe it would have spurred someone, anyone, to talk more about the timeframe issues of emergency power, and think about the wisdom of having the executive and both houses of the leg controlled by one party. madison's checks are great in theory, ambition countering ambition, but that was before the president was head of a party machine that became more influential and powerful than the branches themselves.

sorry about the length of this, but i've been trying to talk about this to everyone i know. so many people are pre-occupied with each new revelation and assertion of authority that the bigger issue doesn't seem to be out there in any meaningful way.

thanks, kevin.

Posted by: matty on December 20, 2005 at 10:37 PM | PERMALINK

Terrorism has been a fact of life since the Lincoln assassination. There is nothing for the war on terror that has been denied to Bush--there is much that should have been. I would say the war has now devolved to a war on our civil liberties. All of this war time president crap is simply chaff. Who did they spy on? Why did Bolton get copies of intercepts? What judicial limits have been placed on the people doing the spying? Look at the lavish lifestyles of the Republican leadersip--where is the hardship that is concommitant with war? They are as reckless with the truth as they are with the stress positions. Even a wartime leader must be checked.
Imagine MacArthur loose above the Yalu with nukes flying everywhere. Now open your eyes and see Bush for what he is--a man without the capacity, judgment, insight or temeprament to lead, given a vast new power over his domestic rivals. This wartime president garbage grew old when they ran out out of easy targets to bomb from three miles high.

Posted by: Sparko on December 20, 2005 at 10:38 PM | PERMALINK

If this is how we define "wartime," it means that in the century from 1940 to 2040 the president will have had emergency wartime powers for virtually the entire time.

That means we've been at war virtually the entire time since I last had a date.

Posted by: tbrosz on December 20, 2005 at 10:39 PM | PERMALINK

if we are at war, what are the tangible, concrete events that will indicate the war is over? What entity would unconditionally surrender, as the Germans did at the end of WWII? Who would sign the peace treaty and negotiate the terms?

I think the fact that there are no obvious answers to these questions indicates that the traditional war paradigm does not apply to GWOT.

Posted by: ruth on December 20, 2005 at 10:42 PM | PERMALINK

matty:

That's the bigger picture, alright.

And boy does it ever suck. Right now I hate Congress the most.

Bob

Posted by: rmck1 on December 20, 2005 at 10:46 PM | PERMALINK

ruth:

Then what exactly does "war" mean in this "new paradigm"?

Bo

Posted by: rmck1 on December 20, 2005 at 10:47 PM | PERMALINK

ruth:

Many of us here on PA are really, really beginning to balk at the idea that "9/11 changed everything."

Bob

Posted by: rmck1 on December 20, 2005 at 10:48 PM | PERMALINK

if we are at war, what are the tangible, concrete events that will indicate the war is over?
A permanent, veto-proof Republican majority in both houses of Congress, a Republican president and a comfortable and reliable majority of party apparatchiks on the Supreme Court.

Forever.

This Wartime President needs the war more than the war needs a Wartime President.

Posted by: Davis X. Machina on December 20, 2005 at 10:48 PM | PERMALINK

Then what exactly does "war" mean in this "new paradigm"?

It means it is not a war, but a foreign policy and police action against a criminal group that numbers in the hundreds (maybe the thousands).

Posted by: Jimm on December 20, 2005 at 10:49 PM | PERMALINK

We will have won when Satan crawls up from Hell and bends over for the President.

Posted by: hermes trismegistus on December 20, 2005 at 10:51 PM | PERMALINK

ruth:

Is the "new paradigm" of warfare what Orwell meant? Are shuffling between fighting al Qaeda and "the terrorists" in Iraq our equivalent of shuffling between fighting Eurasia and Eastasia?

Just, you know, asking my friendly neighborhood new paradigm enthusiasts.

Bob

Posted by: rmck1 on December 20, 2005 at 10:53 PM | PERMALINK

Note to Dems:
When you give a bastard pReznut the means to use "all necessary and appropriate force" in the War on Liberals, er... Terror... shit happens.

What will Congress say when the list of Arabic suspects includes last names like Kennedy, Clinton, Reid, Dean, and Fitzgerald?

You know the list includes many of "interest"; a political enemies list that you know Rove authorized. Why else would the Bushies avoid the FISA court?


--
I say we take the same methods as the the neocons and Bush apologists advocate. String up all the conservatives and let God sort it out.

PS: Notice that Limbaugh has NO problem with spying but his medical records are totally sealed against disclosure?

Fascist Hypocrites !!!!!!!!!!

Posted by: Jay in Oregon on December 20, 2005 at 10:57 PM | PERMALINK

ruth:

My friend Cheney/Charlie once said the WOT would be over after every single terrorist has been killed.

Posted by: WhoSays on December 20, 2005 at 10:58 PM | PERMALINK

Civil liberties don't mean a whole lot after a terrorist has blown you up.

Posted by: Smithy on December 20, 2005 at 11:03 PM | PERMALINK

Kevin: I'm surprised this hasn't come up more in the discussions about the President's inherent powers during wartime -- traditional or nebulous -- but the Supreme Court has pretty narrowly cabined those powers, particularly in the face of pretty clear indications that Congress never would have approved his actions. In 1952, during the Korean War, President Truman sought nationalize the steel industries to avert a strike, and to justify this action he cited to his Commander in Chief powers. The Supreme Court said no, in what is still the law on the limits of the President's inherent authority during wartime. The case is YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952), and it came up some during Chief Justice Roberts' confirmation hearings. I'm surprised more people aren't talking about it.

Posted by: Tim on December 20, 2005 at 11:05 PM | PERMALINK

Jayarbee : I found Kevin's balancing act of seeming fair so ironic in these circumstances that it was reading just as effectively as "damning with faint praise"

Damning with faint praise only works if the 'praiser' is anticipated to be a strong supporter of the supportee. Even Kevin isnt that far to the right.

Posted by: Michael7843853 on December 20, 2005 at 11:06 PM | PERMALINK

If you are a president and/or administration looking for the omnipotence that war powers give you, then AQ is certainly the perfect enemy. Stateless. An ideology so it can spread without a geographical base. A religous ideology so it can instill religous outrage and thus fervor. Can't be extinguished with military force because it has the ability to morph readily. Kill or capture its leaders and there's more in the wings. Yes, if you look to war as a tool to give you unrestrained power AQ certainly was the perfect enemy to show up. Weren't we lucky to have an administration that was able to recogize this opportunity.

Posted by: mainsailset on December 20, 2005 at 11:07 PM | PERMALINK

Yep, WhoSays, that is ripe with irony. Just think, abortions will also cease with the extinction of the human race.

What? Me worry?

Posted by: bobbyp on December 20, 2005 at 11:09 PM | PERMALINK

Justifications:
1. We're at war.
A: I disagree, but whatever. Fine. We're at "war".

2. . . . And the president needs unfettered power to do whatever it takes to protect us.
A: Um, no he doesn't. 6 Aug 2001 PDB. Nuff said. And even Scalia disagrees with inter arma silent leges. But whatever, again.

3. . . . And we've got spiffy new technology that makes FISA obsolete, and there's no way to build a legislative framework for approval for said spiffiness without making it useless.
A: Um - no. I just got through with an Information Technology Ethics course, and if there's one thing I learned (even the professor doesn't "get it") is that Information Technology presents many ethical issues that on their face, seem to upset the established apple cart of what most people think of as right and wrong (ie. File Sharing, intellectual property rights, privacy rights, etc). But when you look more deeply at the issues, you find that there's really nothing new here. IT just tends to hide the real issues, making them seem greyer, by making stakeholders harder to distinguish, etc. But the stakeholders are there, nonetheless, if you bother to look harder for them. And ethical analysis really IS possible, no matter how groovy you think your new technology is. I don't think anybody outside the "know" here has any idea what the technical issues are, surrounding whatever whizbang recording device the NSA has got going here - but the thing is - you CAN'T just toss out oversight, and a paper trail. There HAS to be some kind of audit, and some kind of independent review. If you don't trust the judiciary, find some kind of process that's fair and democratic without revealing the classified information, in order to provide some oversight. If they can't do this, then they're simply not doing their fucking jobs, or they've hired incompetent people to manage this aspect.

If they're doing some kind of massive pattern recognition on 1% of calls, leading to later detailed wiretaps, then get a warrant for it. Simple as that. I don't think that reasonable judges will turn them down if the success of the program can be shown to provide security without unduly infringing our rights. But above all, someone's gotta watch the watchers. It's not a matter of whether we trust or don't trust Bush (I don't - that's no secret). It's whether this sets a precedent for the next idiot that gets (s)elected. Even if Bush is well intentioned and doesn't abuse this - the next guy may. And without a responsible process in place, Bush is guaranteeing that if he doesn't abuse this power, the next guy definately will. I don't think I'm comfortable with that.

Posted by: Osama_Been_Forgotten on December 20, 2005 at 11:11 PM | PERMALINK

mainsailset:

Osama wants YOU to invade Iraq.

Bob

Posted by: rmck1 on December 20, 2005 at 11:12 PM | PERMALINK

The "war on terrorism" is an effective strategy that yields political advantages for domestic policies. Terrorism should be viewed as a national security issue and dealt with much differently with emphasis on securing our airports, shipping docks, tunnels, railroad, etc., not trying to root out suspected terrorists. If terrorism is a real threat to this country's survival, then we should be mobilizing millions of men and women (called a draft)and executing pre-emptive strikes throughout the mid east and calling on all citizens to sacrifice by paying for such an endeavor. But no, as long as people are not asked to sacrifice, support for the current policy will continue. By the way, the "other" war,which was won in three weeks, is nothing more than insurgencies attacking the occupiers during the "peace" phase.

Posted by: Vince on December 20, 2005 at 11:12 PM | PERMALINK

I think the "wartime" definition is a moot point. Congress hasn't declared war, so we're not at war. But even *IF* we were at war, there is NOTHING that places the president above the law.

If he needs to break existing laws to fulfill his oath of office, he should break them; and then - this is the part that's being overlooked - he's supposed to be held responsible.

This is EXACTLY the same way the torture issue should be resolved. Make torture against the law. For those that love to bring up the ridiculous, I-watch-too-much-TV "ticking bomb" scenario, there's a simple solution. If you feel that you must torture to save thousands, then go ahead and break the law and explain yourself to the court. If the court agrees with you, all is forgiven.

Killing another person is against the law, but the courts understand that such an act is sometimes justified. So be it with torture.

For Bush, he isn't willing to take responsibility for breaking the law (there's a huge surprise, given his background). As others have pointed out, if the WH thinks that neither a Republican-controlled Congress after 9/11 NOR the current FISA system would have allowed them to do whatever it is they've been doing now for a couple of years, it MUST be way, way, WAY over the line...

And for the trolls, here's one of the FUNDAMENTAL differences between the left and the right. I'm against what Bush has done *ON PRINCIPLE*. So I'd be against it if a Democrat did it as POTUS. It's not about our side vs your side. It's wrong for ANY president to do.

Oh, I forgot, GOP trolls like their issues broken down into bumper sticker size slogans. Here you go: "Country over party"

Is that clear enough? If the president can make himself above the law, then he's no longer president, he's become a king.

Long live Crazy King George III....

Posted by: Court Jester on December 20, 2005 at 11:15 PM | PERMALINK

Tim wins the point--especially given that the Police action in Korea was a UN-sanctioned enterprise. This war has been manufactured by Karen Hughes so she could wear long-pants to hide varicosity during the belocosity.

Posted by: Sparko on December 20, 2005 at 11:16 PM | PERMALINK

Look ..why don;t you write to Dem senators or congressmen and ask for a resolution declaring we are no longer at war? It would put the issue in the open and take over the executive's powers.

After all, public opinion is behind you guys!

You guys rock.

Osama doesn't hate Americans, they just hate Bush!
Those beheaded victims, were just Bush's mercs and neo-con Likudniks. Who deserved it.

Stick it to the man!

Posted by: McAristotle on December 20, 2005 at 11:16 PM | PERMALINK

Bush keeps pushing the notion that we're at war and that he needs special war time powers. The push-back needs to be that he gets it over and quickly.

Consider that four years after Pearl Harbor, WWII was over. Four years after 9/11, these guys are just ambling along in the GWOT at a leisurely pace with no timeline for getting out of Iraq, and certainly no timeline or sense of urgency for getting bin Laden.

Bush needs to be a serious war time president rather than just the pretender he is.

Posted by: ugly_duck on December 20, 2005 at 11:16 PM | PERMALINK

Civil liberties don't mean a whole lot after a terrorist has blown you up.
Posted by: Smithy on December 20, 2005 at 11:03 PM | PERMALINK

I, for one, would rather die on my feet than live on my knees.

Posted by: Osama_Been_Forgotten on December 20, 2005 at 11:18 PM | PERMALINK

Here is a rule of thumb for determining when a nation is really at war:

If good men and women of all ages and backgrounds are quitting their perfectly good jobs and leaving their families to sign up in the armed forces - only then are we really at war.

Anything less is a "war" in marketing terms only, a public relations branding exercise.

Posted by: merelycurious on December 20, 2005 at 11:18 PM | PERMALINK

I, for one, would rather die on my feet than live on my knees.

Posted by: Osama_Been_Forgotten on December 20, 2005 at 11:18 PM | PERMALINK

Actually, they make you kneel before they saw your head off with a blunt knife. So you get to die on your knees.

Posted by: McAristotle on December 20, 2005 at 11:20 PM | PERMALINK

Shutup McAirheadRebuttal.

Posted by: Jimm on December 20, 2005 at 11:21 PM | PERMALINK

Bush never had the best intentions.
Other than that, your post is spot-on.
Excellent job.

Posted by: marky on December 20, 2005 at 11:21 PM | PERMALINK

Kevin, that's just wrong. President is affirmatively obligated to defend and uphold the Constitution. Nowhere does that document grant him power to override the laws made by Congress.

Furthermore, he is "Commander in Chief" OF THE MILITARY, not of the whole nation. The President is not a king or a dictator.

Bush has admitted to a Federal crime and an impeachable offense. You seem to be attacking him but you give up the main position.

Posted by: Soto on December 20, 2005 at 11:22 PM | PERMALINK

Are you saying the whole nation should be afraid because a few people got their heads cut off in Iraq?

A hell of a lot more people died there in Iraq from other causes, the most of which being Iraqi civilians dying in our initial onslaught.

Posted by: Jimm on December 20, 2005 at 11:22 PM | PERMALINK

Bush is the dithering George B. McClellan of the GWOT.

Posted by: ugly_duck on December 20, 2005 at 11:27 PM | PERMALINK

There's ANOTHER problem with this argument.

1) Justice Jackson's concurrence in the Steel Seizure Cases says - and common sense would have to agree - that the President's peripheral constitutional powers are at their weakest when Congress has directly addressed the issue.

2) Bush, as cited in Kevin's post, argues that we're in wartime.

3) But FISA *directly addresses wartime.* Have a look at 50 U.S.C. 1811, entitled "Authorization during time of war," which reads, in full: "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 a period not to exceed fifteen calendar days following a declaration of war by the Congress."

That's it! Congress addressed exigent circumstances in wartime. It gave the President a 15-day blank check. Bush's failure to address this problem is not, of course, a concession of illegality, but I don't really see how the Kristol et al. argument can get past 1811 and the Steel Seizure Cases.

(We noted this on our little-listened-to podcast yesterday, btw, at bifortnightly.libsyn.com.)

Posted by: Bifortnightly Edition host on December 20, 2005 at 11:28 PM | PERMALINK

I think we ought to grant wartime liberties to the President when we are at war to such an extent that we have a draft in order to maintain an adequate military for the protection of our country. Also I do not think that preemptive wars count as real wars.

The rest of the time the Pres will just have to make do with limited powers.

Posted by: webfeats on December 20, 2005 at 11:29 PM | PERMALINK

John Locke is dead. Long live Thomas Hobbes.

Posted by: dr sardonicus on December 20, 2005 at 11:35 PM | PERMALINK

Tim & Bifortnightly: yeah, as in the steel seizures, exec power should be weakest here. bush has a slightly stronger case b/c exec powers are stronger when international actions involved, but its clear that we're at very least in Zone of Twilight, probably in category 3.

but my main point about the steel seizures is that even justice jackson, the most vocal about limiting the exec, concedes there's an inherent adverse possession notion when congress repeatedly fails to act. and it shows, no one blinks an eye at the fact we haven't had a formal declaration of war in 60 years, yet presidents have used "we're at war" to suppress dissent the whole time.

yeah, it would be nice for the courts to do something. but it would be better for congress to act. this is bigger than just fisa, and focusing on it misses the bigger picture. and damnit, where the hell are the erstwhile libertarians and suspicious-of-federal-government conservatives?

http://www.fff.org/freedom/0893e.asp

Posted by: matty on December 20, 2005 at 11:36 PM | PERMALINK

The President of the United States (POTUS) of America may have just broken the law (in fact, he almost certainly has because there is no apparent justification for his decision to get around FISA on this one), yet the MSM is acting as if this were some "relative" concept that must be discussed and elucidated. So what does the POTUS do when he is caught spying on "American Persons"? He gets on the offensive and tries to make the NYT and "the Congressional Leaders", who were "briefed", feel as it is they who broke the law or are "endangering American lives (sounds familiar?)". The sad thing is that it seems to be working, yet again: the POTUS is going to get away with yet another "murder" because no one out there wants to be perceived as being "biased." There is no bias here at all: GWB [might just have] just broke[n] the law, and unless he provides evidence to the contrary, his latest "outrage" about those who broke the law by revealing his secret and illegal wiretapping program is just another smoke screen, a la Nixon. In any reality-based democratic (small "d") politics, those who "leaked" this are as un-American as those who'd warned us against Iraq's yet-to-be-found W.M.D.s

GWB is getting away with it once more by trying to make everyone feel as it is they who have broken the law!!!!

Fool me once, shame on you; fool me twice shame on ME!!!!!!!

Happy holidays!

Posted by: dcshungu on December 20, 2005 at 11:36 PM | PERMALINK

The harder Bush and his acolytes push for special war time powers, the greater the push back should be that with powers come responsibility. His responsibility is to get this GWOT over ASAP, not to string it out to eternity.

As we begin to realize that wartime can mean restricted civil liberties, it can be used to pressure this clown to quit the posturing and get it done.

Posted by: ugly_duck on December 20, 2005 at 11:44 PM | PERMALINK

Could we suppose that all of the "after- the - fact" court orders were actually obtained within 72 hours? Or is it better to suppose that this is being done retroactively as we speak, i.e. just in case Congress (what a laugh) comes calling and parading before the public with one of its usual sharades of "investigative committees"?

The fact is that even some of these "career" Congressmen don't even know what the hell is going on in the country and in the government in which they are supposed to be its leaders.

Did we have terrorist problem before Bush was appointed?, yes. And thanks to him we now have them even more. Are we safer, hell no!

This spying on Americans is for the purpose of controlling those who don't support world dominance.

Posted by: 0701 on December 20, 2005 at 11:45 PM | PERMALINK

INSTEAD OF WASTING YOUR TIME, YOU CLOWNS SHOULD JUST READ POWERLINE:

http://powerlineblog.com/archives/012612.php

THE PRESIDENT ACTED WELL WITHIN ESTABLISHED CONSTITUTIONAL PRECEDENT AND THUS HIS SURVEILLANCE WAS LEGAL. THE CIA LEAKERS ARE CRIMINALS AND TRAITORS.

AND, AS YOU RECALL, PRECEDENT IS THAT IMPORTANT CONCEPT THAT GIVES ROE V. WADE FAR MORE VALIDITY THAN THE DECISION ITSELF MERITS.

Q.E.D.

Posted by: The Objective Historian on December 20, 2005 at 11:49 PM | PERMALINK

dr. sardonicus:

Actually, you got it backwards. It's Thomas Hobbes (who believed that fear of violent death is the greatest evil, and people banded together behind a Sovereign to secure them from it) is dead. Long live John Locke (whose foreign policy was Napoleonic, his contempt of the poor immense and his support for liberty limited to the middle and upper classes like himself).

Bob

Posted by: rmck1 on December 20, 2005 at 11:51 PM | PERMALINK

Shorter TOC:

EVERYTHING BUSH DOES IS JUSTIFIED BECAUSE HE'S THE COMMANDER-IN-CHIEF..

Q.E.D.

Bob

Posted by: rmck1 on December 20, 2005 at 11:56 PM | PERMALINK

rmck1--"Many of us here on PA are really, really beginning to balk at the idea that "9/11 changed everything."

Translation--"We have shit for brains."

Posted by: Billy Bob Shranzburg on December 20, 2005 at 11:56 PM | PERMALINK

Billy Boob:

Hey, at least we *have* brains :)

Bob

Posted by: rmck1 on December 20, 2005 at 11:58 PM | PERMALINK

Are you saying the whole nation should be afraid because a few people got their heads cut off in Iraq?

Posted by: Jimm on December 20, 2005 at 11:22 PM | PERMALINK

Well, if the movement supporting this sort of stuff was not being engaged and was growing...it might not be bad sense for Americans not to travel.

Posted by: McAristotle on December 20, 2005 at 11:58 PM | PERMALINK

McMalayasian:

That's a triple negative there, Jackson.

Bob

Posted by: rmck1 on December 21, 2005 at 12:00 AM | PERMALINK

Actually, they make you kneel before they saw your head off with a blunt knife. So you get to die on your knees.
Posted by: McAristotle on December 20, 2005 at 11:20 PM | PERMALINK

I know.

I watched the videos.

And I am not afraid of those fucks. They're not coming to the US. And I will not surrender my liberty to a jackbooted thug who claims to be trying to stop them.

Posted by: Osama_Been_Forgotten on December 21, 2005 at 12:00 AM | PERMALINK

rmck1--"Hey, at least we *have* brains:)"

So does my next-door neighbor's dog, but he uses his.

Posted by: Billy Bob Shranzburg on December 21, 2005 at 12:02 AM | PERMALINK

"The constitution defines how we define wartime - Congress declares it - end of story."

Indeed.

Posted by: Libby Sosume on December 21, 2005 at 12:04 AM | PERMALINK

Billy Boob:

Hey -- weren't you the dingus who came out of nowhere the other day and blasted Pale Rider for being an ... ad-hom jockey? :)

Is that the best you got, my man? I mean ... in terms of how 9/11 *did* "change everything?"

I'd just *love* to hear you try to explain it in such a way that transcends pure GOP talking points.

Bob

Posted by: rmck1 on December 21, 2005 at 12:06 AM | PERMALINK

This 'war' and all of the Presidential powers that go with it will end with the election of a Democrat. You know the right wing doesn't want a Democratic president with this much power.
Or as soon as the cowardly right wing gives up all of the 'freedom' they hate us for.
Republicans say they are the tough guys, but the truth is, they are a bunch of cowards who want their daddy to protect them. Their cowardly, incompetent, daddy.

Posted by: merlallen on December 21, 2005 at 12:08 AM | PERMALINK

The NSA is a double-edged intelligence sword. Not only can it track telecommunications it can also program the same. That is one of the main reasons the US Congress in 1978 wanted to make sure all White House uses were recorded via FISA. Accountability is the mainstay of any democracy and therefore the FISA Court was established.

When the FISA court approval is bypassed by any administration, only that administration can vouch safe that the purpose for that specific wiretap is constitutionally safe. That administration then asks the voting public to take them at their word, that everything done in their behalf is legitimate.

The election of 2004 had many issues relating to voting irregularities. Ohio comes to mind with the GAO report from this autumn concerning the Diebold voter tallies. Were politicians lines tapped or even tallies electronically manipulated? There lies transparency in an open and free society when such questions can be answered and not ridiculed.

With NSA all administrative wiretap requests from any administration should be recorded. Then the US Congress with their over-sight bodies can guarantee that all NSA functions be they inbound or outbound communications are thus properly monitored.

The concern here is not just the violation of the 4th amendment against illegal search and seizures but manipulation of the NSA for political gain. That is the question that only a congressional audit and review can answer. Let us see how many of our congressional representatives are now interested in maintaining the NSA for national security purpose or if political gain is the key reality today.

Posted by: Jeff on December 21, 2005 at 12:08 AM | PERMALINK

They're not coming to the US.

Posted by: Osama_Been_Forgotten on December 21, 2005 at 12:00 AM | PERMALINK

Nope, they are too busy calling people in the US to do the dirty work. That's the calls being tapped, remember?

-------------

The constitution defines how we define wartime - Congress declares it - end of story."

Indeed.

Posted by: Libby Sosume on December 21, 2005 at 12:04 AM | PERMALINK

Note Congress can also retract it. Stop whining, put up a resolution telling the troops being shot at, that there is no war and vote.

It would be nice getting some Democrat twisty-turner's positions on record for some nice ads...


Posted by: McAristotle on December 21, 2005 at 12:09 AM | PERMALINK

TOH:

an excerpt from the questionable material you cite from Powerline.

...held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.

Who then goes on to cite Andrew McCarthy's post:
http://www.nationalreview.com/mccarthy/mccarthy200512201735.asp

Listing 28 ways the president can insert his member into your 4th Amendment rights, while dishonestly conflating "warrantless searches" with wiretaps. The quote from the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001 also takes out of context the meaning of the finding. Are they also dishonestly conflating "warrantless searches" with wiretaps? What are we talking about here.

Posted by: Osama_Been_Forgotten on December 21, 2005 at 12:10 AM | PERMALINK

And I am not afraid of those fucks. They're not coming to the US.

Posted by: Osama_Been_Forgotten on December 21, 2005 at 12:00 AM | PERMALINK

Why not sign up then and relieve some poor kid in the Middle East so he can come home?

I admire your bravery. Please also consider working in Embassy Security.

Your bomb-proof courage is inspiring.

Posted by: McAristotle on December 21, 2005 at 12:12 AM | PERMALINK

"in this case he probably did have the best intentions in the world"

Now where does your confidence come from, Kevin, you've got some informations we don't have? Regarding the Bush administration's record of goig after critics and opressing whistleblowers, I think it's posssible that they wiretapped US citizens' conversations inside the US, too. The NSA reportedly 'accidentally' recorded such conversations. Before, they vehemently ruled this possibility out. What will be tomorrows headlines?

You really shouldn't jump to conclusions about W's intentions at this point. He just declared that he thinks he has the authority to ignore the law. Who really knows what's going on in his mind?

Posted by: Gray on December 21, 2005 at 12:13 AM | PERMALINK

rmck: True enough.

This is what I had in mind (from Oregon State's web page on Hobbes):

Men in a state of nature, that is a state without civil government, are in a war of all against all in which life is hardly worth living. The way out of this desperate state is to make a social contract and establish the state to keep peace and order.

How this is relevant to the current situation is that IMO Bush and his cronies are ultimately anarcho-capitalists who are opposed to government since they believe that it interferes with their right to amass wealth. They have no problem with returning to the state of nature since they believe they are naturally superior and the average person deserves nothing better than a life that is nasty, brutish, and short.

Posted by: dr sardonicus on December 21, 2005 at 12:13 AM | PERMALINK

Nope, they are too busy calling people in the US to do the dirty work. That's the calls being tapped, remember?

Yeah, whatever. Maybe cowards like yourself are afraid enough to want to live in a police state, but in my country, there are still Patriots who believe in Inalienable Rights.

Stop whining, put up a resolution telling the troops being shot at, that there is no war and vote.

Please. Been there, done that. Korean "war" was a police action. So was Vietnam.

It would be nice getting some Democrat twisty-turner's positions on record for some nice ads...

Yeah, good thing we've got flip-flopper Bush's position on wiretaps and warrants back in 2004. Unfortunately for him, we now know information that contradicts what he said, and he was doing it at the time. Not quite a flip-flopper. Actually a liar.

Posted by: Osama_Been_Forgotten on December 21, 2005 at 12:17 AM | PERMALINK

McMalaysian:

> "They're not coming to the US."

> Nope, they are too busy calling people in the US to
> do the dirty work. That's the calls being tapped, remember?

Do you have *any* assurance that those wiretaps listened
to *a single person* who led them to a terrorist attack?

Oh ... wait ... that's right. They got that guy who was
planning to take down the Brooklyn Bridge with a blowtorch :)

> Note Congress can also retract it. Stop whining, put up a resolution
> telling the troops being shot at, that there is no war and vote.

Better yet if you just tell the Iraqi people
that the USA is officially at war with them :)

Bob

Posted by: rmck1 on December 21, 2005 at 12:18 AM | PERMALINK

I think this new bit of information pertaining to Bush and his authorization of the NSA to wiretap American citizens is just another example of how this President rules under the guise of fear. He will justify his actions by saying it is for our "security" and that it is something we must do to win the "War on Terror", but for everyone who is not a conservative with their Bush blinders on knows this is yet another example of Bush's fear(not failed) policy.

Posted by: Michael Fort on December 21, 2005 at 12:20 AM | PERMALINK

Why not sign up then and relieve some poor kid in the Middle East so he can come home?
Posted by: McAristotle on December 21, 2005 at 12:12 AM | PERMALINK

Save it.

You're not an American, so you don't have a horse in this race anyway. So you can imagine how little your opinion means to me.

I'm aware that those same people who saw off heads are also in favor of unchecked executive power (as long as the executive is a Mullah). Fine ideological company you keep.

Posted by: Osama_Been_Forgotten on December 21, 2005 at 12:25 AM | PERMALINK

We are at war? Where's the War Tax? Where's the shared sacrifice and rationing? Where's the draft? Where the wartime censorship? Where the lies and distortions to help the war effort? Where's the wartime Propaganda? Ohhh...Nevermind.

Posted by: Robert on December 21, 2005 at 12:31 AM | PERMALINK

dr. sardonicus:

Well sure, I knew what you meant. In common parlance, people mean "Hobbesian" to connote an anarchic, violent state of nature, but Hobbes was very much about getting *out* of that state of nature by forging the social contract. Even though he was a monarchist, Hobbes was progressive in his day.

Now Locke, OTOH, is the patron saint of all those Social Darwinist anarcho-capitalists you're talking about. His theory of "enlightened self-interest" is every free marketeer's favorite rationalization.

So we were really both saying the same thing.

Bob

Posted by: rmck1 on December 21, 2005 at 12:33 AM | PERMALINK

For some reason, I don't think Kevin and others are quite getting it.

Let's say that the government is continuously wiretapping YOUR phone calls, and not only that, reading your emails and any other communication you put out over a wire or the air, 24/7. And they're doing it without a warrant. Would you say that is a violation of your liberties as guaranteed by the Constitution?

Of course you would.

Now, let's say that it's actually a computer that is listening and reading, and that a human is brought in only when you happen to say the magic word(s) (whatever they are, which you don't know). Is that still an egregious violation of your liberties?

Of course it is.

That is what the NSA is doing. They were supposed to do it only to foreigners and only outside our borders. But George Bush authorized - indeed, directed - them to do it to Americans. Without a warrant. (Which would be impossible anyway because the Constitutional warrant demands particulars about people and things.)

Once you say the magic word(s) and they put real humans on your case, they STILL don't get a warrant. Because they can't. The magic words were picked up illegally and can't be used to justify a real warrant.

There's no fantastical, undreamed-of new technology involved. It's the same thing they were doing 20 years ago (to foreigners)...only now the computers are much faster, the storage systems much bigger, and taps have been quietly placed at the backbones of the Internet and those optical fibre networks and switches built in the 1990s.

Is everybody getting this?

Big Brother is watching and listening. Don't say the magic words.

Posted by: Libby Sosume on December 21, 2005 at 12:34 AM | PERMALINK

One thing you can say for King George: he sure makes manifest the mistakes of the Founding Fathers. Among other things, they failed to clearly define the powers of the president, particularly the scope of the commander-in-chief power that they vested in him. Those powers have gradually accreted, taking such form as suspension of habeous corpus; imprisonment en masse of civilian citizens without charge or trial; seizure of private industries; usurpation of the power to declare war; and now, the treatment of any and all Americans as enemy combatants.

Here's how some of the Founders' omissions could be repaired in our time, presumably through constitutional amendment, although statute may be sufficient:
1. Define the presidential commander-in-chief power as the duty to prepare the country's defenses for a time of need. Only two special powers accrue to the president in this connection:
1a- The power to impose the Code of Military Justice on US military personnel.
1b- The power to command hostile military action against invaders of US territory while they inhabit or imminently threaten such territory. This power should be subject to supercession by item 2 below within a strict, short time limit.

2. Reinforce the Congressional war power by requiring Congress, in conjunction with declaring war, to appoint a Theater Commander-In-Chief who would be uniquely empowered to:
2a-Direct the Armed Forces of the United States to take hostile action against the national enemies specified in a Congressional war resolution (and only those), and to direct the Armed Forces to stand down from such action when so authorized by Congress.
2b-Claim first priority on the resources (including intelligence) needed to prosecute the war successfully. (Such resources continue under the control of the civilian government).
2c-Deal with non-citizen captives humanely as possible consistent with advancing the Congressionally-authorized mission and with international law. Turn citizens of the US and its allies captured while aiding the enemy in the area of conflict over to appropriate legal authorities for prosecution (except for those subject to the Code of Military Justice).
2d-Request changes in the Congressional war resolution as needed to pursue the originally-authorized mission more effectively.

I believe this is much closer to the Founding Fathers' vision than what is happening today. It subordinates military leadership to political leadership while reducing the opportunity for one to encroach upon the other. If this had been in effect on 9/11, we would ultimately have had a clearly defined enemy, limited area of conflict, and divided but clear accountability for achieving the mission of punishing and disrupting al-Qaeda. And we wouldn't be dissipating our capacities in Iraq!

Posted by: RonG44 on December 21, 2005 at 12:35 AM | PERMALINK

WaPO:

"Bush said Monday that the White House briefed Congress more than a dozen times. But those briefings were conducted with only a handful of lawmakers who were sworn to secrecy and prevented from discussing the matter with anyone or from seeking outside legal opinions."

What other evidence does the MSM need to realize that this is potentially the hottest story since "Watergate"?

"I would like you members of congress to know that I am breaking the law but you are not allowed to tell anyone." Now that whole illegal activity has been leaked and made public, they are claiming that "Congress was fully briefed." Beam me up, Scotty, there does not seem to be any sign intelligent life down here!!!

It is obvious; it is a no-brainer. If the MSM requires more time to figure this one out, then it probably needs to be hauled to the courts and be forced to spill the beans about their sources and all...the first amendment be damned!!

Posted by: dcshungu on December 21, 2005 at 12:38 AM | PERMALINK

Kevin Drum: it's a dead certainty that nearly everyone agrees that the president does have the power to order warrantless domestic wiretaps for purposes of gathering foreign intelligence

Boy, does that sound familiar....

There is one difference," I pointed out. "In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare wars."

"Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

BTW - I guess nearly everyone agreed that the President had the power to put US Citizen in internment camps too. I am not old enough to know if this was the case, but I do know that Kevin's statement is at best an exaggeration and at worst outlandish.

Am I just going crazy? You know, I think Kevin should take the following quote to heart.

"We live in the home of the free and the land of the brave, but when we stop being brave, we will soon will cease to be be free"

Keep giving away your rights, Kevin. However, please don't try to give mine away.

Posted by: justmy2 on December 21, 2005 at 12:39 AM | PERMALINK

I haven't had enough time to read all the posts, but I offer this.

The only reason Bush could possibly have, given the provisions of FISA and the ability to commence surveillance without a warrant for 72 hours, is that this administration was conducting surveillance that could not have possibly survived the scrutiny of the FISA court, which has, by all accounts, been virtually a "rubber stamp" for said surveillance heretofor.

Until I see evidence to the contrary, this smacks of an impeachable offense.

Posted by: Richard on December 21, 2005 at 12:41 AM | PERMALINK

Oh and in other news ...

Well, the Sunnis are screaming election fraud, not being able to believe that they're really and truly only 20% of the population, and ...

Jack Abramoff is about to sing like a canary :):):):)

Bob

Posted by: rmck1 on December 21, 2005 at 12:49 AM | PERMALINK

I stopped reading when you decided to grant that Bush had the best of intentions. How very Nicolas Kristof of you.
Where have you been during this guy's last 11 years in public office? Maybe you didn't live in Texas, but 5 years is still way behind the learning curve. He's evil and everyone around him is evil. You should have learned that during Gove v Bush. Never give them the benefit of the doubt. That's how they have get away with murder every day.

Posted by: jussumbody on December 21, 2005 at 12:51 AM | PERMALINK

See my post a couple posts above. Now see this:

Spy Court Judge Quits In Protest - Jurist Concerned Bush Order Tainted Work of Secret Panel

They had been forewarned that they couldn't use the "magic words" to justify a warrant. So they stopped asking for warrants.

Get it, Kevin?

Posted by: Libby Sosume on December 21, 2005 at 12:52 AM | PERMALINK

rmck1 is right!

Both TPM and the Drum have suggested that somehow there is some kind of "weird science" involved here. Nope: The government's science is always the last to be modernised (they are still trying to migrate from "legacy" PDP 11 applications!!

What is going on here is that the Government has finally figured out that a 3.1 GHz DELL laptop can do a heck of whole of lot of eavesdropping, so they figured that they needed to be freed from any relevant laws so that they can apply this "new" technology as broadly as possible, now that they have the hardware power to eavesdrop, not only on foreigners but also on "U.S. persons."

Posted by: dcshungu on December 21, 2005 at 12:52 AM | PERMALINK

Well, whatever the merits, I hope that this new fantastic spying technology and powers the president has can identify which "Turkish Nationals with ties to terrorism" that Dennis Hastert took money from, so that Denny can be sent to Gitmo and tortured, and pictures of him with womens underwear on his head can be posted on the internet.

Posted by: Osama_Been_Forgotten on December 21, 2005 at 12:53 AM | PERMALINK

Kevin Drum: it's a dead certainty that nearly everyone agrees that the president does have the power to order warrantless domestic wiretaps for purposes of gathering foreign intelligence

Quick Poll....raise your hand if you agree with this!!!

I vote nay....

What constitutes nearly everyone?

Posted by: justmy2 on December 21, 2005 at 12:54 AM | PERMALINK

"and in this case he probably did have the best intentions in the world "

On what do you base this assumption? I see no good intentions in any other Bush action in 5 years (oh, ok, he signed the "Do Not Call" law), so why is this any different?

Posted by: craigie on December 21, 2005 at 12:57 AM | PERMALINK

OK so now I'm getting confused...

From today's DRUDGE Report:

Bill Clinton Signed Executive Order that allowed Attorney General to do searches without court approval. Clinton, February 9, 1995: "The Attorney General is authorized to approve physical searches, without a court order"

WASH POST, July 15, 1994: Extend not only to searches of the homes of U.S. citizens but also -- in the delicate words of a Justice Department official -- to "places where you wouldn't find or would be unlikely to find information involving a U.S. citizen... would allow the government to use classified electronic surveillance techniques, such as infrared sensors to observe people inside their homes, without a court order." Deputy Attorney General Jamie S. Gorelick, the Clinton administration believes the president "has inherent authority to conduct warrantless searches for foreign intelligence purposes."

The recent threads have focused on Bushwhack's usuping of presidential power by authorizing "illegal" surveillance, but how does this differ from Clinton's authorizing the Attorney General do do "illegal" searches back in the 90's??

Posted by: pencarrow on December 21, 2005 at 1:09 AM | PERMALINK

Answer me this one, my chickens, can the President defy an impeachment investigation?

Posted by: Dick Durata on December 21, 2005 at 1:10 AM | PERMALINK

George Bush is Lucy. America is Charlie Brown. Our freedom is the football.

Posted by: James Finkelstein on December 21, 2005 at 1:10 AM | PERMALINK

Pencarrow, Drudge is just wanking as usual. Here's what Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve the premises, information, material, or property of a United States person. That means U.S. citizens or anyone inside of the United States.

[lifted from Think Progress]

Posted by: Windhorse on December 21, 2005 at 1:17 AM | PERMALINK

It's safe to say that whatever Bush's NSA program actually involves, no one would have batted an eyelash if FDR had approved a similar program during World War II. In other words, during a period of genuine, all-out war, few people complain when a president pushes the boundaries of the law based on military necessity.

Almost all the things that presidents including FDR have done in wartime that "push the boundaries of the law" have been militarily useless. They mainly involved presumed German and Japanese spy/saboteur efforts in the US. Such spies/saboteurs were somewhere between nonexistent and inconsequential. It's mainly a response to domestic hysteria. The Civil War was a different matter, primarily because it was a civil war. Civil wars involve a considerable amount of domestic repression. But in the case of the so-called war on terror, there is nothing the government needs to do that involves "pushing the boundaries" of the law. It's a stalking horse for the untrammeled expansion of presidential power, for political purposes.

Posted by: brooksfoe on December 21, 2005 at 1:23 AM | PERMALINK

Thanks Windhorse... appreciate the clarification.

Posted by: pencarrow on December 21, 2005 at 1:26 AM | PERMALINK

Josh at TPM also discussed the Kristol/Schmidt article today. He pointed out that while Thomas Jefferson saw that there may be unforseen circumstances that he may have to act outside of what the constitution allows/foresees, he would, at the first opportunity, allow judgement to be passed by congress and/or the people. War or not. That is a big difference from what Bush is saying, which is the president gets to do whatever he wants,without anyone else having a thing to say about it. Additionally, since he attempts to keep much of his extra-constitutional activity secret (torture, spying on his countrymen without oversight), he never intends to have congress, the people or anyone else judge.

This reminds me of Kevin's position on torture where Kevin thinks torture should always be against the law. Sometimes, as in the ticking bomb scenario, you may decide to torture anyway, but it should still be against the law. Your countrymen should judge what you have done at a fair trial, and you hope that they will do right by you. The difference is Bush that what Bush is doing is not just outside of the law, but outside of the constitution. For the same reasons as Kevin gave for keeping torture illegal, (setting a high bar against that type of action) what Bush is doing now should be considered illegal in the very fundamental way that all unconstitional actions should be. If he has a good enough reason he has to trust those in congress to be fair in their judgement. He does not get to make that decision alone.

Posted by: patrick on December 21, 2005 at 1:26 AM | PERMALINK

McMalaysian,

Good news! You don't have to be an American citizen to join our armed forces and fight, so, since you are convinced we are at war, and you have such compassion for the poor kids in Iraq, why don't you enlist?

Posted by: Billy Bob on December 21, 2005 at 1:33 AM | PERMALINK

For the record, Abraham Lincoln was taken to task by the Supreme Court at the first available opportunity, and many of his acts, especially involving suspension of habeas corpus and trial by military tribunal, were declared unconstitutional and uniquely against the spirit of our laws and the foundation of our government:

ex parte Milligan (1866)

In this case, Lambden Milligan, for whom the case is named, was arrested in Indiana as a Confederate sympathizer. Indiana, like the rest of the United States, was part of a military district set up to help conduct the war. Milligan was tried by military commission and sentenced to die by hanging. After his conviction, Milligan petitioned the Circuit Court for habeas corpus, arguing that his arrest, trial, and conviction were all unconstitutional. What the Supreme Court had to decide, it said, was "Had [the military commission] the legal power and authority to try and punish [Milligan]?"

Resoundingly, the Court said no. The Court stated what is almost painfully obvious: "Martial law ... destroys every guarantee of the Constitution." The Court reminded the reader that such actions were taken by the King of Great Britain, which caused, in part, the Revolution. "Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish."

Did this mean that martial law could never be implemented? No, the Court said. The President can declare martial law when circumstances warrant it: When the civil authority cannot operate, then martial law is not only constitutional, but would be necessary: "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."

ex parte Merryman

These great and fundamental laws, which congress itself could not suspend, have been disregarded and suspended, like the writ of habeas corpus, by a military order, supported by force of arms. Such is the case now before me, and I can only say that if the authority which the constitution has confided to the judiciary department and judicial officers, may thus, upon any pretext or under any circumstances, be usurped by the military power, at its discretion, the people of the United States are no longer living under a government of laws, but every citizen holds life, liberty and property at the will and pleasure of the army officer in whose military district he may happen to be found.

Hamdi v. Rumsfeld

Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.

It is obvious that there are always checks on the president, acting as commander-in-chief, and the real question is how do we determine what additional powers the commander-in-chief has, since these are still checked by the Constitution and Bill of Rights, and by what reading of the Constitution and Bill of Rights would it ever be lawful for the commander-in-chief to deny a citizen's rights, as this power is never explicitly given to him or the federal government, and the federal government and president have no power by privilege or nature but only that explicitly given in the Constitution?

Posted by: Jimm on December 21, 2005 at 2:15 AM | PERMALINK

Don't give that pig-fucker any slack. He didn't have to do it this way-it was his choice to go around the law.

Posted by: doug r on December 21, 2005 at 2:17 AM | PERMALINK

Nice comment over at TPM about our "Criminal President"
http://www.tpmcafe.com/story/2005/12/21/2947/0424

Posted by: Alec Murrshem on December 21, 2005 at 2:24 AM | PERMALINK

You liberals are idiots. I come on the board and spit out strawmen and other crap. Yet, because I am snarky and hurt your feelings you are compelled to respond to my nonsense. I don't believe the shit I write - I do it just to annoy you and compromise the thread. It is so easy to fluster you clowns. I rule this thread everytime I post. The entire last half was nothing but responses to me and Fred (who is also an asshat troll) WE OWN YOU

Posted by: McAristotle on December 21, 2005 at 2:25 AM | PERMALINK

Get real McAristotle. I almost always ignore you, and never allow you to control a thread. Some other may on occasion, but this thread has been an utter beatdown of all wingnut talking points and straw men, and I realize that's what your spinning. Now the others hopefully will as well.

Posted by: Jimm on December 21, 2005 at 2:28 AM | PERMALINK

Jimm:

That McMalaysian was spoofed. Check the email.

Bob

Posted by: rmck1 on December 21, 2005 at 2:36 AM | PERMALINK

Oh. I never check on those things. My bad.

Posted by: Jimm on December 21, 2005 at 3:00 AM | PERMALINK

papageno, during the "Cold War", it was not okay to perform warrantless searches.

now, a few airplanes crash into buildings and it is?

end of argument.

A falsehood and a question together do not add up to an argument. The cold war produced plenty of accepted warrantless wiretaps. Even the sainted RF Kennedy authorised warrantless wiretaps. Can't any of you understand that this is neither new nor partisan?

Posted by: papageno on December 21, 2005 at 3:27 AM | PERMALINK

papageno: Since Congress voted to authorize war, voted to support war, voted to pay for war, and has now voted for victory in war, how can anybody in the "reality based community" seriously doubt that the US is "at war"?

jimm: We are not "at war" with Iraq or Afghanistan. It's that simple. As in prior periods of history, we now have military forces operating as part of our foreign policy objectives, and we are funding them.

That's it folks. The Congressional resolutions are irrelevant because jimm says so. It's that simple!

Posted by: papageno on December 21, 2005 at 3:33 AM | PERMALINK

we all know that if a democratic president confesses to breaking the law as W did a few days ago, the Republicans will make sure that the guilty President is immediately given the most sever punishment. - lib

And the reason is lib, that even in a Democratically controlled Congress and Senate the Democrats would be intellectually honest enough to admit that wrong doing had occurred. If that meant a Democratic President was to be censured or impeached then so be it. That is SO not the case right now. The current crop of Republicans are all about grabbing and holding on to power at ANY cost, even if that means burning the country to the ground to do it. The Constitution is, after all, "Just a goddamned piece of paper" - G.W.B.

Posted by: Eric Paulsen on December 21, 2005 at 3:36 AM | PERMALINK

"I don't believe the shit I write - I do it just to annoy you and compromise the thread."
McA, sounds like you have a serious attention deficit. Do you feel people tend to ignore you in RL? I suggest you consult a shrink about that. Thx for the honesty in sharing your problem!

Posted by: Gray on December 21, 2005 at 4:01 AM | PERMALINK

papageno, it's not my fault you can't read. we were at war at one time with both Afghanistan and Iraq, and the facts of the matter are that we no longer are at war effectively with these nations anymore, but we are working in conjunction with their new governments, who we support and are certainly not "at war" with, and to be at war with a nation, you have to be at war with it, and its government.

and no, we did not make warrantless searches legal throughout the greater part of the Cold War, and, to my knowledge, I'm not aware that we've ever as a nation said it's okay to conduct warrantless searches on American citizens.

Posted by: Jimm on December 21, 2005 at 4:36 AM | PERMALINK

Even when warrantless searches were unambiguously illegal, the government conducted thousands of them and violated the civil rights not only of possible spies, but of people engaged in constitutionally protected dissent. Secret searches of Americans' homes and papers in the name of national security were one of the worst civil liberties abuses of the Cold War, noted the ACLU's Martin. Instead of approving them, the Congress should outlaw them.

That the government does something does not by the act itself make it right or legal.

Posted by: Jimm on December 21, 2005 at 4:44 AM | PERMALINK

Gary Hart in today's LA Times:

It is often said that the first victim of war is the truth. In fact, the first victim of American war is the liberty of Americans.

During our investigations of intelligence abuse, we discovered that the government had engaged in widespread surveillance of a very large number of American citizens. Civil rights leaders were monitored. Antiwar groups were under surveillance. Domestic phones were tapped. Mail was opened. The FBI conducted warrantless "black bag" break-ins of private residences and offices. We wrote an entire report on warrantless electronic surveillance by the FBI exactly what the NSA has now been authorized to do by the president.

One particularly egregious program, code-named COINTELPRO, went beyond the mere collection of intelligence on domestic groups to actually trying to "disrupt" or "neutralize" target groups. The excuse given by the FBI and others was, "We are at war, and we need to do everything we can to defeat our enemy." Sound familiar?

In some cases, the intelligence services even turned violent. The CIA, for instance, conducted the infamous Phoenix program that resulted in the systematic assassination of thousands of Vietnamese villagers accused of collaborating with the Viet Cong. This was the 1970s version of Abu Ghraib. During the Eisenhower and Kennedy administrations we tried (with obsessive insistence in the case of Fidel Castro) to assassinate at least six foreign leaders. Too bad we didn't have the Predator then. It would have been much simpler.

To my knowlege, it has never been legal for the American government to perform warrantless searches on American citizens. Of course, it cannot be legal by the very language of the Consitution and Bill of Rights, and philosophical unerstanding and foundation by which the federal government receives its power (its only powers) from the Constitution and limited by the Bill of Rights.

But what does papageno care about our classical liberal ideals, liberty, and limited government?

Posted by: Jimm on December 21, 2005 at 4:50 AM | PERMALINK

you are convinced we are at war, and you have such compassion for the poor kids in Iraq, why don't you enlist?

Posted by: Billy Bob on December 21, 2005 at 1:33 AM | PERMALINK

Why? I don't drive an SUV or oppose drilling in National Reserves. No environmental lunacy = less dependency on Mid East = able to avoid terrorism.


Posted by: McAristotle on December 21, 2005 at 4:51 AM | PERMALINK

But what does papageno care about our classical liberal ideals, liberty, and limited government?

Posted by: Jimm on December 21, 2005 at 4:50 AM | PERMALINK

Iraq = Vietnam, again. Not every war is Vietnam. The the whole host of predictions based on that assumption is tired and stupid.

Posted by: McAristotle on December 21, 2005 at 5:06 AM | PERMALINK

I wrote John Warner on this issue over 2 years ago. I asked him whether we were legally at war. I got back a windy reply that were were morally at war and de facto at war, but no, "technically" not legally at war. I asked John Yoo the same question; he came back with something to the effect that de facto and de jure is the same thing, which I doubt.

In my opinion, we're talking a War of Convenience. That is, it will continue as long as it is convenient for the executive. Egypt has been under a state of emergency since the assassination of Sadat.

Posted by: searp on December 21, 2005 at 5:14 AM | PERMALINK

Wonder if the new Defense Budget Bill doesn't have a little surprise tucked away in there someplace making BushCo's domestic surveillance and wiretap's legal.

1. This is Karla Rove we're dealing with here. (I call him Karla now, in memory of the masterfully devious guy who ran the East German spy apparat in the old LeCarre spy novels.)

2. They held the House vote open until 6 a.m. yesterday to get it through. Not only way beyond the traditional 15 minutes, but at a truly ungodly hour.

3. Big Dick War Hawk Cheney may not have dared stay in Iraq, but he has made a show of flying home "to be sure he's here in time for the Senate vote." Since we can take it for granted that he'd far rather be securely ensconced in his secure, undisclosed location at his new mansion on the Chesapeake Bay, something must be really important.
Not just the lives of the underclass. Something closer to his own ass.

4. They are pushing this thing through before Congress members go home for the Christmas Break and realize that BushCo's popularity is starting to weigh like an anchor on their own careers.

5. How much are you willing to bet that a few people on the receiving end of all this data mining aren't making really well-informed investment decisions? People will do more damn fool things to cover their asses after a crime than they ever did to protect them in advance.

6. Karla and Dubya are starting to feel the prospect of actual accountability. We can assume this would be an unpleasant prospect for them and everyone they work with. Especially since it looks like Jack Abramoff has flipped.

7. As a former landlord and past mediator in Housing Court, I can verify it is extremely difficult to evict a tenant who refuses to play by the rules. These people are in the White House, and they do not have anyplace else to go. Pretty soon, they will be complaining they are not getting the respect they deserve, and all bets about representative democracy will be off. They do not play by the rules. Never have, never will.

Posted by: Dave Porter on December 21, 2005 at 5:16 AM | PERMALINK

McGriddles,

Are you still trying to bring your gobbledy-gook in here?

Why do you continually post about things you cannot understand? Isn't there someone outside of your grass hut who you can accuse of kissing in public so that they can be whipped by the government in the city square?

Posted by: Pale Rider on December 21, 2005 at 7:33 AM | PERMALINK

Careful, Pale. You're on a slippery slope.

Posted by: Stefan on December 21, 2005 at 8:23 AM | PERMALINK

I think we have only to look back at the McCarthy/JEHoover era to see where this policy goes. We have been here and it was a very bad time for America. I am simply astounded that people actually want to go back there.

Posted by: bboot on December 21, 2005 at 8:33 AM | PERMALINK

One thing you can say for King George: he sure makes manifest the mistakes of the Founding Fathers. Among other things, they failed to clearly define the powers of the president, particularly the scope of the commander-in-chief power that they vested in him. Those powers have gradually accreted, taking such form as suspension of habeous corpus; imprisonment en masse of civilian citizens without charge or trial; seizure of private industries; usurpation of the power to declare war; and now, the treatment of any and all Americans as enemy combatants.

I was speaking about this with presidential scholar and law professor David Greenberg (author of the excellent "Nixon's Shadow") this last weekend. We both agreed that that the purpose of the "commander-in-chief" language was not inserted by the Founders to mean that the president in wartime was some sort of generalissimo or supreme warlord with dictatorial powers over the nation, but rather to emphasize that the civilian authorities had final control over the military, even during wartime. It was meant as a check and control over dictatorship, not an enhancement to it.

The Founders knew that in wartime pressures would be intense on the military to assert itself and to restrict liberty with the excuse that they needed to do so to protect the country, and therefore they made the President commander of the military because, supposedly, the President would have a motive to protect civil liberties. Little did they know...

Posted by: Stefan on December 21, 2005 at 8:40 AM | PERMALINK

The current confusion would be instantly cleared up if Congress actually lived up to its responsibility to declare war. No declaration - no war. The granting of War Powers short of a declaration of war is a dodge on the part of Congress to have it both ways. If the war goes well then they're heros, if it goes badly then it's the President's fault.

Posted by: Dennis P on December 21, 2005 at 8:51 AM | PERMALINK

stefan,

Did the good professor also state, "A chill wind is blowing across the land?"

It's partisan nonsense.

The President has ample authority to conduct warrantless wiretapes amd it's been confirmed by the Federal Appeals courts and assumed by the FISC review in 2002. Of course we knew all this before 2002 because Jamie Gorlick and Bill Clinton told us in 1994.

The last thing you need is the clowns on the judiciary committee to start boviating on this. You'll just be bufoons on the way to another loss to GWB in the Supreme Court. This is a battle he's all but requested. Clinton is famous for losing Supreme Court cases on Presidential Power. GWB would be quite happy to reverse that trend and present another clear distinction between the two men.

This will also give him another PR victory. Liberals have mastered the art of appearing in public with their hair on fire but with little to show for it. Americans want a President who will aggressively prosecute the GWOT. Not a person fretting 1st about terrorists rights. Yes, the French may think less of us, and that is a heavy burden to bear. but Conservatives are willing to pay the steep price.

Posted by: rdw on December 21, 2005 at 9:01 AM | PERMALINK

Bush has admitted to a Federal crime and an impeachable offense.
It's funny how the rules change depending on whether a D or an R is in the White House. Where was your indignation when Carter and Clinton did this stuff?

You clowns are hard to take seriously.

Posted by: conspiracy nut on December 21, 2005 at 9:10 AM | PERMALINK

I think we ought to go back to the original intent of the Founders. According to the Constitution, wars are supposed to be declared and they are supposed to be declared by Congress, not the King, er, President.

Posted by: The Fool on December 21, 2005 at 9:13 AM | PERMALINK

Here's a scenario: assume that Democrats regain control of Congress in the midterms and begin impeachment proceedings. Bush, however, defies impeachment and refuses to leave office, claiming that under his wartime authority he cannot be forced to leave office because it would interfere with his responsibility to protect the nation, and ordering the 101st Airborne to ring the White House to protect him.

Unlikely? Surreal? Before we would have thought so. Now, it doesn't seem so unlikely.

Posted by: Stefan on December 21, 2005 at 9:14 AM | PERMALINK

Senator Roberts Responds

Yesterday there were news reports about Senator Jay Rockefeller, who pulled a 2003 letter to Dick Cheney out of the vault. In that hitherto-secret correspondence, Rockefeller expressed "concerns" about the NSA intercept program. This morning, Senator Pat Roberts, Chairman of the Senate Intelligence Committee, responded:

"I have no recollection of Senator Rockefeller objecting to the program at the many briefings he and I attended together," Mr. Roberts said. "In fact, it is my recollection that on many occasions Senator Rockefeller expressed to the vice president his vocal support for the program," most recently, "two weeks ago."

There is no limit to the political opportunism of the Democrats.

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

Sort of thing the NYT's will never print or ABC broadcast. However the WSJ, blogs and Talk Radio WILL cover it. Thus more people will know of Pat Robertson's rebuke than heard of Jay's "concerns" in the 1st place.

Remember the SBV's. You can run around with your hair on fire all day long on the MSM but this isn't 1990. I knew Jamie Gorlick blessed this operation before Kevin Drum even knew she had been on TV attacking it. I also knew Bill Clinton confirmed Jamie's 1994 position. It wasn't 60 minutes and Jamie Gorlick is fully exposed as a partisan hack.

I would think the readers of this blog moreso than the general public would be extremely cautious of making quick decisions on MSM contrived scandals. You know the powerful of the internet. You know of search engines. You got to watch the self-immolation of Dan Rather in real time. You knew immediately he was in deep trouble and within 12 hours the evidence against him was unassailable. You got to watch him twist in the wind for 2 weeks knowing all along his credibility was sharrered and you also saw how long it took the rest of the MSM to grasp what was happening to them. Some, comically, Jonathan Alter among them, still in denial.

This is another example. You are listening ONLY to partisan legal types spin another false web.

Posted by: rdw on December 21, 2005 at 9:19 AM | PERMALINK

That Clinton link that conspiracy nut provided was a press release from the Office of the Press Secretary and headed "For Immediate Release. February 9, 1995." Quite the secret and extra-legal program, ya? How devious of Clinton to hide it in plain sight by having his press office release it!

Poor conspiracy nut, just another victim of Carter and Clinton Derangement Syndrome.... (CCDS)

Posted by: Stefan on December 21, 2005 at 9:20 AM | PERMALINK

"I have no recollection of Senator Rockefeller objecting to the program at the many briefings he and I attended together," Mr. Roberts said. "In fact, it is my recollection that on many occasions Senator Rockefeller expressed to the vice president his vocal support for the program," most recently, "two weeks ago."

If Jay Rockefeller told Dickie that he liked it, it's good enough for me!

No, wait. It's not.

Posted by: Stefan on December 21, 2005 at 9:22 AM | PERMALINK

Poor Stefan, has it occurred to you yet that things like this don't need to be hidden? Except for possibly not giving the people you want to catch a heads up. So, in order to be effective it would need to be hidden. And now you want to argue that its OK to do this only if its not effective?

How's it feel to have found yet something else that you can't impeach Bush for? I feel your pain, really.

Posted by: conspiracy nut on December 21, 2005 at 9:24 AM | PERMALINK

assume that Democrats regain control of Congress in the midterms
Hey, I like this game! Let's also assume that rabbits fly, and freed of their natural predators they multiply rapidly. They swoop down and graze on unprotected lettuce fields worldwide, causing a critical shortage of salad making material for the vegans. Vegans rise up in revolt and arm themselves with assault rifles to clear the skies of the scourge of flying rabbits. This would cause an alliance of vegans and the NRA, and together they could bring whirled peas.

Unlikely? Surreal? Only your hairdresser knows for sure.

Posted by: conspiracy nut on December 21, 2005 at 9:32 AM | PERMALINK

stefan,

I can buy into the 101st airborne scenario. If this President required protection of any sort they would be there for him immediately. In fact you might also see the 6th fleet sail up the Potomic. That's how much the men and women in the service respect their commander-in-chief.

But the democrats regaining Congress? You expect anyone to believe that? Letmee guess! John Kerry is going to give a series of uplifting speeches to invigorate the liberal base!!!

Lay off the acid. (is that stuff still around?)

Posted by: rdw on December 21, 2005 at 9:32 AM | PERMALINK

Here's the Carter release. Can anyone identify the parts that make it different than was Bush is doing? (Hint: it's not Japan. It's the part about not applying to the court only if certain exceptions are met. In other words, it's done in compliance with FISA, not in defiance of it).

By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act (this chapter) for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act of 1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to approve applications to the court having jurisdiction under Section 103 of that Act (50 U.S.C. 1803) to obtain orders for electronic surveillance for the purpose of obtaining foreign intelligence information.

1-103. Pursuant to Section 104(a)(7) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)), the following officials, each of whom is employed in the area of national
security or defense, is designated to make the certifications required by Section 104(a)(7) of the Act in support of applications to conduct electronic surveillance:

(a) Secretary of State.

(b) Secretary of Defense.

(c) Director of Central Intelligence.

(d) Director of the Federal Bureau of Investigation.

(e) Deputy Secretary of State.

(f) Deputy Secretary of Defense.

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the
President with the advice and consent of the Senate.

1-104. Section 2-202 of Executive Order No. 12036 (set out under section 401 of this title) is amended by inserting the following at the end of that section: ''Any 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.''.

1-105. Section 2-203 of Executive Order No. 12036 (set out under section 401 of this title) is amended by inserting the following at the end of that section: "Any monitoring which constitutes electronic surveillance as defined in the Foreign Intelligence Surveillance Act of 1978 shall be conducted in accordance with that Act as well as the Order.''.

Posted by: Stefan on December 21, 2005 at 9:33 AM | PERMALINK

bbot,

Did you see George Clooney's masterpiece "Goodnight and Good luck". Well I didn't. Most sane Americans were not willing to piss away 2 hours of their life to watch rubbish. This isn't 1953 or 1968 and Iraq isn't Vietnam. I understand Goerge provided a very nice story for the choir and may God bless you all. Thankfully, most americans share my contempt for hollywood freaks. Put on a nice story and we'll watch. Shove your preaching up your *ss.

Posted by: rdw on December 21, 2005 at 9:44 AM | PERMALINK

Stefan,

Warrantless Searches of Americans? Thats Shocking!

Except when it happens every day.

When not cavalierly talking "impeachment," here's the Left's talking point of the day:

What makes this president think he can invade the privacy of Americans without a warrant?


I don't know. Could it be the powers, long recognized by federal law, to:

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search including a strip search at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

Conduct warrantless searches of junkyards maintained by American citizens;

Conduct warrantless searches of docks maintained by American citizens;

Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Conduct warrantless searches of auto-repair shops operated by American citizens;

Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Conduct warrantless drug screening of American citizens who are school officials;

Conduct warrantless drug screening of American citizens who are school students;

Conduct warrantless searches of American citizens who are on bail, probation or parole.

These could conceivably be some of the things that the president is thinking about, though certainly not all. I neglected, after all, to mention the long-established "inherent authority" of the president to "conduct warrantless searches to obtain foreign intelligence information," recognized by federal appeals courts and assumed by the Foreign Intelligence Surveillance Court of Review in 2002.

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

By all means let's take this to the Supreme Court and settle it one and for all.

Posted by: rdw on December 21, 2005 at 9:49 AM | PERMALINK

I understand Goerge provided a very nice story for the choir and may God bless you all. Thankfully, most americans share my contempt for hollywood freaks. Put on a nice story and we'll watch. Shove your preaching up your *ss.

Oh, so rdw is now an admitted McCarthyite!

Well, wave your phony list of traitors at the camera, rdw! We now know what side of history you come down on.

You and Tail Gunner Joe probably have all the proof you need on that blank piece of paper over there, in your office, in that locked filing cabinet, right?

Posted by: Pale Rider on December 21, 2005 at 9:52 AM | PERMALINK

Stefan
Nice use of the bold tag, it's always good to see someone practicing their skills. You forgot to bold the biggie, though: authorized to approve electronic surveillance to acquire foreign intelligence information without a court order. Highlighting the fact that someone other than a court is responsible for determining certification is not a differentiator.

And nice work, reading clear through to the end to find the amendments; very thorough.

And I'm sure Kevin appreciates your reproducing in whole something that was already linked.

Posted by: conspiracy nut on December 21, 2005 at 9:52 AM | PERMALINK

"Trying to define whether or not we're technically "at war" is sort of like trying to determine what the definition of is is."

I haven't read all posts so excuse me if I repeat what others have said.
If congress has declared war, then we are at war. If not, then we are not at war. Simple azat. As far as I know the only war congress has declared for Bush was already declared a victory so technically we aren't presently at war. *shrug* I say the man don't get no more war time powers. Period.
I for one don't fall for these wars on (Drugs, terrorism, fill in the blank). They are not wars declared by congress. There is no clear objective to identify the end of this so called war. Not a reasonable one anyway. I don't believe he can constitutionaly declare a war with no end and expect us to relinquish war time powers to him indefinitly.
Sorry George. I'm against you on this one.

Posted by: Lurker42 on December 21, 2005 at 9:53 AM | PERMALINK

authorized to approve electronic surveillance to acquire foreign intelligence information without a court order

Which happens to mean that neither end of the conversation nor any part of it can involve a US person or a person currently residing in the US. That was clearly violated by the NSA. The 'foreign intelligence information' must be wholly foreign and not be domestic surveillance. Foreign=outside of US. Domestic=inside the US. I just thought I'd add that, when you go to parse this, you should remember that foreign means completely outside of the United States of America.

So, when are you going to apologize to Stefan for being stupid?

Posted by: Pale Rider on December 21, 2005 at 10:00 AM | PERMALINK

no war has been declared since 1941- therefore we are not in a state of war leagally, period.

Posted by: k on December 21, 2005 at 10:06 AM | PERMALINK

Oh, none needed! If everyone who was stupid apologized to me there'd be no end of it...;-)

Posted by: Stefan on December 21, 2005 at 10:08 AM | PERMALINK

Stefan,

I apologize for asking people who were being stupid to apologize to you.

Posted by: Pale Rider on December 21, 2005 at 10:09 AM | PERMALINK

I believe we've been looking at this situation backwards this whole long time. We are at war because this president and his party wanted war powers. It's not about al Queda, or Osama, or the attack on the World Trade Center. It's about dismantling the New Deal, and getting America back the Age of the Robber Barons. The war he's in is with us.

Posted by: Dixie Myers on December 21, 2005 at 10:10 AM | PERMALINK

Pale
I just thought I'd add that, when you go to parse this, you should remember that foreign means completely outside of the United States of America
Jumping into the fray, huh? I have 3 words for you: Aldritch Ames, and Google. You'll find that Ames was in the US.

Thanks for playing, though; and when are you going to apologize to me for being stupid?

Posted by: conspiracy nut on December 21, 2005 at 10:13 AM | PERMALINK

Sorry, Aldrich, not Aldritch. I'd hate for you to Google for the wrong guy.

Posted by: conspiracy nut on December 21, 2005 at 10:15 AM | PERMALINK

Pale R,

Joe was a sad fellow who died about 50 years ago. His bogeyman role has been greatly over-stated by the media. I confess to not being a Joe McCarthy expert but I do know Hollywood and the media. My understanding is that the vast majority of claims he made were in fact accurate. Hiss was a spy as were the Rosenbergs and Hollywood was in fact infested with communists. I do believe they perfectly fit Lenin's apt description, "Useful Idiots", and in the end did little harm. Time has confirmed all socialists to be morons.

Did tailgunner Joe step over the line? Probably. Did Hollywood grotesquely exaggerate his antics? Most certianly. Am I interested 50 years later. Not even a little bit!

Do I think Edward R. Murrow was the John Wayne of his time. Much like Dan Rather was the hero of our time. I believe nothing on CBS.

Hollywood has no credibility. Everyone knows they specialize in creating fantasy's. It's what they do. These are the filty rich with play money and time to burn. I don't know of a single person who would even consider getting a history lesson from George Clooney. I'm sure he's a fine human being but he's a friggin actor.

He's desperate to salvage the MSM but he's in the worst possible place to do it. He put together what is reportedly a nice move no one is interested in seeing. Edward R. Who? Are you kidding me?

Posted by: rdw on December 21, 2005 at 10:19 AM | PERMALINK

The tradition of the oppressed teaches us that the state of emergency in which we live is not the exception but the rule. We must attain to a concept of history that accords with this fact. [Walter Benjamin, Illuminations, translated by Harry Zohn (New York: Schoken Books, 1968), p. 257.]

Posted by: Will K. on December 21, 2005 at 10:26 AM | PERMALINK

You'll find that Ames was in the US.

And his civil liberties were protected. Due process was given to him--he was represented by a lawyer at trial and was able to examine the evidence presented against him. And he passed numerous polygraph examinations. And he was caught. He now sits in prison for the rest of his life. It's called America, and the system worked. A man who damaged his nation was caught, tried fairly, and punished.

What wiretaps would have caught him by the way? He communicated through written messages and dead drops. Had they done a simple 'lifestyle audit' which is now required and saw that he was living well beyond his means, they would have caught him much sooner. The lifestyle audit can only be performed when the person being audited consents to having their background checked as a prerequisite for obtaining a government clearance. What you don't sign away are basic civil liberties, though.

What's your point? Sorry, forgot you didn't have one.

Posted by: Pale Rider on December 21, 2005 at 10:29 AM | PERMALINK

I confess to not being a Joe McCarthy expert but I do know Hollywood and the media.

Just a hint: without Hollywood or the media helping him, he instigated a red scare in this country that was based totally on lies and he did not accomplish anything, other than furthering his own sordid and pathetic political aims.

By your own hilarious example, was it Hollywood and the media that played up that whole 'Holocaust' thing? I'd sure like to see you blame the Holocaust on Hollywood.

Careful, rdw. You're about to blow the 'wingnut' of the year award and dissolve into the bitter ranting of a foolish old man with a computer.

Posted by: Pale Rider on December 21, 2005 at 10:33 AM | PERMALINK

I love this man:

Kerry Democrats demagogue ANWR

Married to a woman who flies him and herself around the country in her private, energy-guzzling Gulfstream II jet visiting their five mansions heated and cooled with increasingly scarce, ever-more-expensive energy resources, Democratic Sen. John Kerry and his family surely consume far more BTUs ...

I actually want to see ANWR shut down for a bit and kept as a reserve for later. Right now the Canadians have over $60B of committed dollars going into expanding the Tar Sands. It's the 2nd largest deposit in the world after Saudi Arabia and the quicker they get at it the better for global supply. Alberta is an absolute boom town and we can expect to see an incremental 2M barrles a day all destined for the US markets. With demand flat and the potential for conservation gains this should meet US needs for another decade.

On the downside this is really dirty stuff to make. Canada had no shot at meeting Kyoto obligations but now it's going to really cost them. They can look at it as foreign aid to Russia. We'll get our oil at market prices (the pipelines are even already in place) and they get to trash their environment.

Posted by: rdw on December 21, 2005 at 10:34 AM | PERMALINK

Cheney's most recent comments about the need to broaden and extend the powers of the presidency seems to indicate not even the Administration really believes that either the Congressional resolution nor the Constitution really authorized such behavior. Both are just figleafs.
I do not feel safer knowing that Greenpeace and PETA along with assorted family members are under close scrutiny by the FBI. Knowing that cronies are in charge of many of the governmental agencies that are supposed to protect national safety does not reassure me.
Finally, a perpetual war on terror (Does this mean Jeb gets the mantle of leadership passed to him or will there be a constitutional amendment doing away with presidential term limits?) means paranoia as a lifestyle. While some certainly do opt to live so, I don't think the Founding Fathers had that in mind.

Posted by: ent lord on December 21, 2005 at 10:44 AM | PERMALINK

Pale,

Joe had to have some help from the media. He was not all lies. Alger Hiss WAS a spy. The Rosenbergs WERE spies. Hollywood WAS infested with communists. We had a 40 year cold war with communism which included 2 ward and over 100,000 deaths. I am not defending Joe. He was a bad guy. I am just pointing out that we can't accept the Hollywood version and most definitely nothing from CBS.

We don't know of the holocaust because of the network news and Hollywood just as we don't know of the civil war via Hollywood and the networks. We know of them because of the people who were there and told their stories in letters and speeches and were covered by newspapers and historians. In the case of TV we have actual footage witch tells the story outside media spin.

TV and Hollywood are only narrow slices of the media now and thankfully CBS and George Clooney are extremely narrow. Gone are the days when Unce Walter reported the news and that was that. We know much of what was covered before Fox and the internet was egregiouly slanted and thus useless as History.

I don't thing anyone really thinks Clooney's efforts in Goodnight constitutes History nor do I think anyone learned of the holocaust or even formed much of an opinion on it from Hollywood.

That's your parties problem. At on time the MSM had the ability to control news coverage especially the spin. ITS OVER!!!!

Posted by: rdw on December 21, 2005 at 10:53 AM | PERMALINK

If we want to flog the Prez for peccadellos I recommend we start with his refusal to call for a formal declaration of war against Iraq. Whenever you give two-faced [er, nuanced] politicians a chance to be on both sides of an issue with the same vote they will take it. Thus the vote for the authorization to use force was really actually meant to not have a war in Iraq.

Posted by: wks on December 21, 2005 at 10:56 AM | PERMALINK

pale,

bitter?

GWB is my guy. Cheney is my guy. Rummy is my guy. Colin was NOT my guy and he is gone.

GOP Senate, GOP House. More GOP governorships, More GOP state houses and more conservatives on the Supreme and appelate courts.

WSJ 2M subcribers all of whom read the editorial pages. NYT's 1M subscribers less than 50% read the editorial pages.

FoxNews, Rush Limbaugh, the blogs and search engines. (Ask Jamie gorlick about search engines.)

Bitter, I think not!!

Posted by: rdw on December 21, 2005 at 10:59 AM | PERMALINK

What's your point?
I see you missed something in your search. Ames' home and office were wiretapped and searched without court order.

That is the topic, you know, searches without court issued warrants. Ames - searches - no warrants. Funny how the main facts seem to slip by you moonbats.

What's it say for you lefties when you have to ignore so much information in order to maintain your belief system?

Posted by: conspiracy nut on December 21, 2005 at 11:00 AM | PERMALINK

George Orwell would be pleased to know the US 'Democracy' has been able to be at war for almost the entire time since WWII. The military industrial complex has achieved near dictatorship and it is time to put a stop to it by ending the mobilization of a war economy started at the beginning of WWII. Because of representatives like Murtha, a murthafucker to liberal social democracy, we turn our backs on peace and welfare in order to fill the pockets of capitalitsts with blood money. Anathema upon them.

Posted by: Hostile on December 21, 2005 at 11:18 AM | PERMALINK

What's not to understand, wingnuts?

Bush violated the supreme law of the land - the Constitution. Warrantless searches are expressly prohibited.

What part of "violated the law" do you not understand?

Posted by: Libby Sosume on December 21, 2005 at 11:27 AM | PERMALINK

The brilliant Judge Richard Posner, author of the book Preventing Surprise Attacks (among many other outstanding works), takes to the pages of the Washington Post to argue that the NSA surveillance program is no serious threat to our civil liberties. Moreover, according to Posner, the NSA program is part of an attempt to fill gaps in our defenses against domestic terrorism. Posner finds it "no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives." I would argue that after September 11, the administration would have been criminally negligent had it not sought to do so.

Posted by: rdw on December 21, 2005 at 11:27 AM | PERMALINK

hostile,

The US economy is now up to $12T and the defense industry is but a tiny slice. We do not have a war economy.

These old liberal crutches get more bizarre every day. Few people can even name a defense contractor.

Posted by: rdw on December 21, 2005 at 11:33 AM | PERMALINK

libby,

don't be so stupid. link up to the 9:49 post.

Posted by: rdw on December 21, 2005 at 11:36 AM | PERMALINK

the mobilization of a war economy started at the beginning of WWII
WTF? Here's an incomplete timeline for you.
1609 - 1775 Colonial Indian Wars
1689 - 1763 French and Indian Wars
1775 - 1782 Revolutionary War
1776 - 1890 Indian Wars
1812 - 1815 War of 1812
1836 - 1861 Mexican American War
1861 - 1865 Civil War
1898 - 1899 Spanish American War
1899 - 1902 Philippine American War
1903 Panama intervention
1917 - 1918 WWI
1941 - 1945 WWII
1950 - 1953 Korean War
1961 - 1975 Vietnam War
I've left out recent wars, I'm really hoping you know about those. The first thing that will jump out at you from the above list is that the calm period between WWI and WWII was abnormally long.

Peace is an anomally; you don't have to like that and I'd be happy to help you change that, but it would be helpful if you could adsorb reality.

Posted by: conspiracy nut on December 21, 2005 at 11:36 AM | PERMALINK

rdw:"The US economy is now up to $12T and the defense industry is but a tiny slice. We do not have a war economy."

Late to the thread, alas, but I just want to point out that comment answers Kevin Drum's first question: "Is George Bush really a "wartime president," as he's so fond of calling himself?"

The answer is no.

Posted by: PTate in MN on December 21, 2005 at 11:38 AM | PERMALINK

The judge who quit the FISA court

The lead story in today's Washington Post concerns the resignation of Judge James Robertson from the FISA court. Judge Robertson didn't explain why he resigned but, according to the Post, "two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work."

Judge Robertson should be respected for his decision, which appears to have been an act of conscience. However, as the Post acknowledges near the end of its story, Robertson is a liberal judge (very liberal, if my my experience is any indication) who "who has often ruled against the Bush administration's assertions of broad powers in the terrorism fight, most notably in Hamdan v. Rumsfeld." His decision in the Hamdan case was reversed by the unanimous vote of a panel of the D.C. Circuit which included (now) Chief Justice Roberts. The Supreme Court will review that case. The D.C. Circuit ripped Robertson's opinion and, in my view, justifiably so.

Posted by: rdw on December 21, 2005 at 11:38 AM | PERMALINK

Or Libby, the 9:10 post. Precedent, common occurance. Thanks for playing.

Posted by: conspiracy nut on December 21, 2005 at 11:39 AM | PERMALINK

President had legal authority to OK taps

By John Schmidt
Published December 21, 2005


President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms.

Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States. He is now a partner in the Chicago-based law firm of Mayer, Brown, Rowe & Maw.

Poor Jamie, even he former teammates are using her own quotes.

Posted by: rdw on December 21, 2005 at 11:42 AM | PERMALINK

When we look back at the George W. Bush presidency, the word "wartime" will have had a suspicious tinge to it, just like the legitimacy of his election to the presidency in 2000 will always have an overshadowing of fraudulence. Learning about these domestic wiretaps has only increased the public's already skeptical (and ever-declining) view of the level of ethics and honesty in the government under Bush.

NYT columnist Paul Krugman [nytimes.com] put it this way:

"One way or another, the Bush administration will stagger on for three more years. But its essential fraudulence stands exposed, and it's hard to see how that exposure can be undone.

What do I mean by essential fraudulence? Basically, I mean the way an administration with an almost unbroken record of policy failure has nonetheless achieved political dominance through a carefully cultivated set of myths. The record of policy failure is truly remarkable. It sometimes seems as if President Bush and Mr. Cheney are Midases in reverse: everything they touch - from Iraq reconstruction to hurricane relief, from prescription drug coverage to the pursuit of Osama - turns to crud...
I hear right-leaning ideologues lately telling us to forget how the war was begun - and to look ahead. In other words, "don't look back." And yet, how can we forget that this war was, when all was said and done, completely unnecessary? How can we forget that fact when we hear Bush calling himself a "wartime president" every time he makes excuses for acting as if he's entitled to unchecked power - like a monarch or a dictator?

David Brooks tells us that

"...the Democratic Party's loudest voices are in the grip of passions that render them untrustworthy..."
The "passions" of which he speaks revolve around the bona fide untrustworthy and trust-damaging acts of the "war president," in whom a nation NEEDS to trust, because it is paramount in a democracy to trust a commander in chief. It's all about sending our own sons and daughters to war - or deciding to risk our own lives under a "war president" whose integrity is all-important. We trust with the blood of our own families - the flesh of our flesh. I can't imagine anything greater about which to get passionate. How about you?

Posted by: Jude Nagurney Camwell on December 21, 2005 at 11:43 AM | PERMALINK

ptate,

I wasn't commenting on whether we are technically in a war or not. I find such discussion the equialent of arguing about how many can dance on the head of a pin.

We do not have a war economy because our economy is so large and powerful and our military is so dominant we can spend 'ONLY' 3.3% of GDP on defense and fight a war without braking a sweat. 3.3% of $12T is well above what anyone else can even consider spending.

It's rather unlikely we'll EVER have a war economy again.

Posted by: rdw on December 21, 2005 at 11:48 AM | PERMALINK

jude,

you can't quote Paul Krugman AND be taken seriously.

you are so obviously one of the reviled liberal elites. You are making George Clooney's job very, very hard.

it must be so hard to see so clearly that everything GWB does he does wrong and with great evil AND HE STILL WINS ELECTIONS!!!

It must really such to live in a country full of fools and you're the only one with a brain.

Posted by: rdw on December 21, 2005 at 11:55 AM | PERMALINK

conspiracy nut: "Peace is an anomally; you don't have to like that and I'd be happy to help you change that, but it would be helpful if you could adsorb reality"

Another conservative answer to Kevin's question: "Is George Bush really a "wartime president," as he's so fond of calling himself?"

Again, the answer is no. If peace is the anomaly, and war is the base condition, then we can infer that the Constitution and legal system were written to address the normal situation faced by the nation: being at war. So GWB is no more a wartime president than any other American President.

Thus Bush's excuse that normal laws don't apply to him BECAUSE he is a "wartime" president is bogus. Bush is not special, and like all presidents he is obliged to follow the Consitutional checks and balances.

Posted by: PTate in MN on December 21, 2005 at 12:01 PM | PERMALINK

The peace time between WWI and WWII was not an anomaly, it was the direct result of the demobilization done after the War to End All Wars. The US military was reduced to almost nothing, preventing the war pigs from using it to enrich themselves.

Posted by: Hostile on December 21, 2005 at 12:03 PM | PERMALINK

Would they be making the same argument if Gore had won in 2000?

No, of course not.

Their argument is fascist in nature. Fuhrer Bush! Amerika uber alles! Clap louder, schweinhunds!

Posted by: a_retrogrouch on December 21, 2005 at 12:10 PM | PERMALINK

I don't subscribe to the fact that Bush might have, under some claim of a war footing, these extra-constitutional powers.

However, even if you go along with that, Bush himself declared major hostilities over some two years ago, and it was nearly a year ago that the V.P. said the insurgency was in it's last throes.

Given those statements by the Administration, even if some extra-constitutional powers accrued to the Presidency, they have long since expired.

Posted by: John Masters on December 21, 2005 at 12:13 PM | PERMALINK

The US military was reduced to almost nothing, preventing the war pigs from using it to enrich themselves.
And causing us no end of problems to scale up after Pearl Harbor. The best defense is no defense, huh? But hey, the Democrats aren't weak on national defense. See ya next election.

And when speaking of the war pigs, you might want to keep in mind that, adjusted for inflation, we've spent basically the same amount on defense for the last 40 years. Social spending is up 5 times. Virtually no change in poverty rate, virtually no change in education scores, etc. So who's getting rich off the public dole with no gains to show for it?

Posted by: conspiracy nut on December 21, 2005 at 12:28 PM | PERMALINK

Would they be making the same argument if Gore had won in 2000?
Would you be making the same argument? Did you make that argument when Clinton authorized searches without warrants? When Carter did? Did you catch rdw's 11:42 comment?

Reality is knocking, is anyone going to answer the door?

Posted by: conspiracy nut on December 21, 2005 at 12:32 PM | PERMALINK

rdw: "We do not have a war economy because our economy is so large and powerful and our military is so dominant we can spend 'ONLY' 3.3% of GDP on defense and fight a war without braking a sweat"

Yes, but the question is, is GWB a wartime president entitled to do extraordinary things because the US is at War.

The fact that we can fight a war without having it make a dent on our economy suggests that no, the US is not involved in a war of such magnitude, urgency or severity that the president is exempted from obeying the law.

Posted by: PTate in MN on December 21, 2005 at 12:36 PM | PERMALINK

What's it say for you lefties when you have to ignore so much information in order to maintain your belief system?

Dunno. Might want to check your ability to read:

The lifestyle audit can only be performed when the person being audited consents to having their background checked as a prerequisite for obtaining a government clearance.

When you maintain a clearance with the government, you consent to being investigated. Now if you want to advocate freeing Ames, be my guest.

There is a huge gulf between someone working for the government who holds a clearance and consents in writing to allowing a background investigation and Joe Blow American. Ames could simply have declined to renew his clearance and left the government.

Posted by: Pale Rider on December 21, 2005 at 12:37 PM | PERMALINK

Pale
You now want to argue that Ames submitted to the wiretaps and searches of his home before the fact because he had a security clearance? Inventive. Reminds me of the old saying "If you can't dazzle them with brilliance, baffle them with bullshit".

Take it from one that knows, when you get a government clearance, you do not submit to wiretaps and searches of your home.

Posted by: conspiracy nut on December 21, 2005 at 12:46 PM | PERMALINK

Take it from one that knows, when you get a government clearance, you do not submit to wiretaps and searches of your home.

Really? I've had my clearance for over a decade. I have fully and completely consented to having the DSS perform Single Scope Background Investigations on me three times now. Not only do I willingly surrender these rights for the privelege of maintaining a clearance, I've signed the paperwork allowing them to do that. I've also allowed them to fingerprint me and polygraph me. At any point, I could have said no and surrendered the clearance.

You might want to read the fine print the next time you claim that you once had a clearance.

Posted by: Pale Rider on December 21, 2005 at 12:53 PM | PERMALINK

Poor conspiracy nut, you keep throwing your shit against the wall and none of it's sticking.

"Why won't ANYONE respond to my post's about Clinton and warrantless searches? Doesn't anyone think I'm pretty?"

Maybe it's because those claims were debunked yesterday all over this board and elsewhere. Drudge didn't put up the whole quote, which says that the attorney general must meet the other specifications -- which precisely are that those searches may NOT be used for domestic spying against Americans.

Try keeping up with the news, dear heart -- and quit suckling at Drudge's man breasts! It's unbecoming!

rdw, this post is for you too, because you keep spreading the same disinformation. One might say you've become the...Dan Rather...of this thread....

Posted by: Windhorse on December 21, 2005 at 12:57 PM | PERMALINK

Pale
I'm not the one with the problem with fine print. Better check again on those warrantless wiretaps and searches of your home. I assume you have an on-site security officer handy.

Posted by: conspiracy nut on December 21, 2005 at 12:58 PM | PERMALINK

c-nut,

Since I don't mind whether they wiretap me or go into my home, why would I care? If they feel they need to do that in order to grant or renew my clearance, so be it.

I mean, common sense--the government would never abuse the civil liberties of its citizens, right? Or are you going to stop making the case that Bush should be impeached for failing to get a court order to conduct FISA wiretaps?

Seems to me, you've made the case beautifully--if Ames was convicted based on wiretaps and searches that were conducted WITHOUT a court order, then we should stop all searches and wiretaps that DO NOT have court orders.

Beautiful. Now the trolls jump through the burning hoops and singe themselves.

Posted by: Pale Rider on December 21, 2005 at 1:01 PM | PERMALINK

Well, C-Nut isn't a troll, I guess.

More of the willfully strident loyal opposition.

And, no, I don't need to go talk to the SSO.

Posted by: Pale Rider on December 21, 2005 at 1:09 PM | PERMALINK

if Ames was convicted based on wiretaps and searches ... then we should stop all searches
Or you could say that because Ames was convicted we should continue warrantless searches in some circumstances.

And, in fact, that would be a wonderful discussion. Unfortunately, we seem to stuck on a discussion of whether the reasons Bush gave for doing common shit is good enough.

Posted by: conspiracy nut on December 21, 2005 at 1:22 PM | PERMALINK

Yes, but the question is, is GWB a wartime president entitled to do extraordinary things because the US is at War.

The fact that we can fight a war without having it make a dent on our economy suggests that no, the US is not involved in a war of such magnitude, urgency or severity that the president is exempted from obeying the law.

In a post 9/11 world GWB can easily meet the constitutional requirements to do extraordinary things.

The fact the USA, with an economy 1,000 times larger than the economies of Afghanistan and Iraq, can fight two wars in that region without breaking an economic sweat does not attest to the relative danger of the soldiers in the field or the citizens at home. I think a better reference point would be the 3,000 Dean on 9/11 and the 2,100 KIA since.

This is setting up to be a fascinating case from a legal perspective. Either the democrats will drop it OR the Roberts/Alito/Thomas/Scalia Supreme Court will decide on the constitutionality.

Either was GWB wins. He is on the side of protecting Americans from terrorists and the DNC is on the side of protecting terrorists from Americans.

If it goes to the Supreme Court he will win.

Posted by: rdw on December 21, 2005 at 1:24 PM | PERMALINK

Unfortunately, we seem to stuck on a discussion of whether the reasons Bush gave for doing common shit is good enough.

They're not. What do you want to argue about now?

I know--how can you, as a conservative, put up with the drooling and raving of someone like rdw? I go after liberals once in a while, why don't you help us out and go after this nutbag for a while?

I hate to ask for help, but he's pretty prolific. Pick something you think is wacky and call him on it.

Or don't.

Posted by: Pale Rider on December 21, 2005 at 1:26 PM | PERMALINK

I think a better reference point would be the 3,000 Dean on 9/11 and the 2,100 KIA since.

Bloodthirsty cocksucker. Count the bodies and jerk off if that's what you like to do. Blood, blood, blood. Killing for Jesus and GWB. Yee ha.

Posted by: Pale Rider on December 21, 2005 at 1:32 PM | PERMALINK

windhorse,

The significant comments were not that Gorlick and Clinton referred to specifics of the act but specific claims made by each that the President can do warrantless searches OUTSIDE the review of Congress using power granted the President in the Constitution.

The following was written by Clintons #3 at the Justice Dept, John Schmidt.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

I've yet to read a response to the last paragraph, especially Jamie.

Posted by: rdw on December 21, 2005 at 1:32 PM | PERMALINK

Can someone explain to me the wingnut obsession with Jamie Gorelick?

Posted by: short fuse on December 21, 2005 at 1:38 PM | PERMALINK

how can you, as a conservative, put up with the drooling and raving of someone like rdw?
Much easier than I can put up with the drooling and raving of lefties. He uses facts, stays pretty much in a straight line, and isn't nearly as over-the-top as the moonbats here (or not even as over-the-top as me)

I suspect he's so irritating because he's so right (as in: correct). Anyway, I haven't seen anyone dispute his facts.

Fear of facts is a terrible thing, you'll get no help from me for that.

Posted by: conspiracy nut on December 21, 2005 at 1:39 PM | PERMALINK

rdw,

Hey--why don't you tell us why Kristen Breitweiser is not credible? Why don't you tie her to France and old Europe and the liberal agenda? Oh, that's right--you can't. She voted for Bush in 2000.

Kristen Breitweiser, one of the 9/11 widows, has demolished Bush's claims that intelligence failures prior to 9/11 proved the need to circumvent the law re domestic spying. As a lawyer, she lays out her case with precision and detail.

Recently, President Bush has admitted to carrying out surveillance on U.S. citizens in the interest of national security. He unabashedly admits to doing it. He offers no apologies. With his bellicose swagger, he once again uses 9/11 as his justification for breaking our constitutional laws. The President's justification of 9/11 to carry out such surveillance begs a closer examination. President Bush should be stopped in his tracks with regard to his use of 9/11 scare tactics to circumvent constitutional laws that are meant to protect U.S. citizens. His justification for doing so -- the inability to conduct surveillance on the 9/11 hijackers -- is a red herring. History will bear out the truth -- our intelligence agencies held a treasure trove of intelligence on the 9/11 hijackers, intelligence that was gathered through their initially unencumbered surveillance. President Bush should busy himself by investigating why that information was then stymied and not capitalized upon to stop the 9/11 attacks.

MOUSSAOUI, FISA, and FBI SURVEILLANCE -- MISUNDERSTANDING #1:

When it comes to the FBI and Zaccarias Moussaoui, one must understand that the FBI met all evidentiary standards to both apply for and be granted a FISA warrant. The information the FBI had to support their FISA request was two files on Moussaoui that were given to the FBI by the French and British intelligence services. Inexplicably, FBI lawyers and supervisors at FBI HQ "misunderstood" the evidentiary standards needed to apply for and receive a FISA warrant, and they refused the FISA request from the FBI agents in Minneapolis. Thus, the Moussaoui search warrant paperwork was never submitted to the FISA court. One need only read Colleen Rowley's memorandum to confirm these facts.

Had FBI HQ not denied the FISA request, the FISA court would have issued the search warrant to search Moussaoui's belongings....

None of the FBI lawyers and/or supervisors responsible for this glaring error and "misjudgment" has been held accountable.

AL MIHDHAR/AL HAZMI & THE STATE DEPARTMENT-- MISUNDERSTANDING #2:

Both al Mihdhar and al Hazmi were connected to the Cole bombing and as such were investigated as part of the FBI's Cole investigation.

If, in the summer of 2001, the FBI had been able to access their own criminal case files on the Cole investigation, they might have been able to stop al Mihdhar and al Hazmi before they carried out the 9/11 attacks. Because of the "misunderstanding" about sharing information between FBI intelligence and FBI criminal investigations (the Reno wall), vital information that would have helped the FBI locate al Mihdhar and al Hazmi was not shared within the FBI. As a result, Al Mihdhar and al Hazmi were not found by the FBI in time to prevent the 9/11 attacks. So goes the story, if only the "misunderstandings" about the Reno wall had not existed, the two 9/11 hijackers would have been stopped. This is patently false, because, the Reno wall did not prevent the FBI from capturing at least one of the 9/11 hijackers--Khalid al Mihdhar.....

ABLE DANGER -- MISUNDERSTANDING #3

When it comes to Able Danger and surveillance, one must look at the alleged history of Able Danger and know the facts....
The story is that Able Danger was allegedly dismantled in May 01 because it violated posse comitatus. With regard to Able Danger and its surveillance of terrorists within the borders of the United States, the alleged Able Danger cells were not U.S. citizens. Therefore, posse comitatus did not apply. Once again, lawyers "misunderstood" the law. They thought terrorists in the United States participating in terrorist acts were entitled to the same rights as U.S. citizens. Quite a "misunderstanding." The result of their misunderstanding? Four of the 9/11 hijackers -- members of the Brooklyn Cell -- were not "taken out" and a mere four months later able to carry out the 9/11 attacks.

THE KING'S APPROACH

President Bush is using the intelligence community's pre-9/11 "inability" to carry out surveillance on the hijackers as his reasoning for currently conducting surveillance on U.S. citizens. First of all none of the 9/11 terrorists were U.S. citizens. Moreover, no law past or present barred the intelligence community from stopping the 9/11 terrorists. Ultimately, what stopped the intelligence community from capturing or killing the 9/11 hijackers prior to the 9/11 attacks were the lawyers and supervisors who repeatedly "misunderstood" the very laws they were supposed to be the experts on....

Breitweiser concludes:

It has come to my attention that the one terrorist we currently have in custody and connected to the 9/11 attacks--Zacarias Moussaoui-- is being tried for the death penalty because he lied to the FBI in August 2001 (his lie? in short, "i am not a terrorist. i am just interested in flying planes.") ....

If this is to be the threshold to put an individual to death--the intentional withholding of information that could have prevented the 9/11 attacks--there are arguably many individuals (quite alarmingly some of whom are in our own government) who could meet that requirement and potentially be tried for death. Will the Moussaoui penalty phase hearing set such a precedent?....

Posted by: Pale Rider on December 21, 2005 at 1:40 PM | PERMALINK

C-Nut,

Well, it was worth a shot. I love how you decide that he uses 'facts' though. I'll have to remember that one.

Posted by: Pale Rider on December 21, 2005 at 1:41 PM | PERMALINK

pale rider,

It has nothing to do with the reasons GWB gave. Everyone knows why he was wiretapping and why speed was so critical.

We are arguing if he has the constitution behind him and, if he does not, can he be impreached.

The ONLY reason this is news is because liberals are so miserable looking at 3 more years of Bush they cannot stand it and the ONLY way to end the agony is to impeach him. They'll grasp at any straw no matter how unlikely. Any shred of hope is a small ray of sunshine.

The bizarre thing here is even if there was a technical voilation of the law there weren't any evil intentions. They are clearly hunting terrorists. There was nothing partisan or political about the program. GWB kept the leaders in Congress informed regularly as well as the relevent judges of the programs existance. They reviewed the plan every 45 days to make sure it was still necessary. It's very reasonable to question the legality but suggesting an impeachable event is a 100% partisan sentiment. It's pure Bush hatred.

The net effect is you've created a chicken little scenario. Your screams now are just shrill. There's no one listening.

Posted by: rdw on December 21, 2005 at 1:47 PM | PERMALINK

I love how you decide that he uses 'facts' though
I'm thinking of the quote from Gorelick, it is pretty sufficient by itself for his argument. And since it nests with the Clinton and Carter memos, I'm thinking it'll stand up.

As for any past non-fact-based trangressions of his, I don't know. I'm a troll, I come here to fling feces; that relieves me of the need to remember anything that happened yesterday.

It's very theraputic.

Posted by: conspiracy nut on December 21, 2005 at 1:49 PM | PERMALINK

We are arguing if he has the constitution behind him and, if he does not, can he be impreached.
Oh hell, is that what we're arguing? I may be on the wrong thread...

Posted by: conspiracy nut on December 21, 2005 at 1:53 PM | PERMALINK

Kristen Breitweiser, one of the 9/11 widows, has demolished Bush's claims that intelligence failures prior to 9/11 proved the need to circumvent the law re domestic spying. As a lawyer, she lays out her case with precision and detail.

I have no idea what the point is here. Are you saying Kristen is against the Patriot Act? So what?

The question of the wire taps has nothing to do with the Patriot act but with the Constitution. Does GWB have the constitution right to bypass FISC? The President has to follow the laws passed by the Congress ONLY if they are constitutional.

I've read thru this and I think She makes the case FOR the Patriot act. If you think I am defending our intelligence agencies it's far from it. I think they suck. I'd fire half the CIA tomorrow. Clinton would not meet with the CIA director because he wisely understood the CIA would leak like a sieve and kill him politically.

Posted by: rdw on December 21, 2005 at 1:59 PM | PERMALINK

Thanks Kevin. This post is so on the money. We need to have a serious national debate about this issue of permanant war. In my opinion, granting permanent emergency powers to the president of the United States is anti-thesis of democracy.

Posted by: berto on December 21, 2005 at 2:02 PM | PERMALINK

Hmmm, I missed Windhorse.
Drudge didn't put up the whole quote
Imagine that. But the part you are relying on says that the AG gets to decide whether those conditions are met. Think of John Ashcroft, would you want John Ashcroft deciding whether those conditions were met? I thought not, objection overruled.

which precisely are that those searches may NOT be used for domestic spying against Americans.
Made this part up, didn't ya?

and quit suckling at Drudge's man breasts!
Actually didn't see this at Drudge until after I had commented on it here. But then, jumping to unwarranted conclusions is a mainstay of the moonbat.

Posted by: conspiracy nut on December 21, 2005 at 2:03 PM | PERMALINK
To my knowlege, it has never been legal for the American government to perform warrantless searches on American citizens.

Sure it is; no warrant is required for certain searches, e.g., incident to lawful arrest. The universal requirement is reasonableness, though generally -- but not universally -- a warrant is required for reasonableness.

Posted by: cmdicely on December 21, 2005 at 2:07 PM | PERMALINK

Folks, if you read the lead article at Obsidian Wings by hilzoy - "Intellectual Integrity Watch: Clinton And Carter Did It Too! Edition" - I believe that you will find a thorough refutation of rw's argument.

Posted by: dcbob on December 21, 2005 at 2:09 PM | PERMALINK

if you read the lead article at Obsidian Wings by hilzoy
And if you drill down through all the links, you'll find that the blog post he was relying on incorrectly stated the wording of the law. And that still doesn't explain Aldrich Ames, how'd that happen?

Moonbats twisting more facts.

Posted by: conspiracy nut on December 21, 2005 at 2:19 PM | PERMALINK

The bizarre thing here is even if there was a technical voilation of the law there weren't any evil intentions.

That is both irrelevant and an unprovable assertion. You should know better. Bush may very well have evil intentions; in fact, John Schmidt mentions that in his article as a very real danger of allowing this to go on.

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

That is a relevant but weak claim. Elected officials claim powers for themselves all the time; testing those claims are what the courts are for.

John Schmidt gave his opinion on the matter. His opinion clashes with those of all the career NSA guys who came forward and broke this story because they did not believe the program was either legal or had the appropriate Congressional oversight (which it had none). Head FISA judge Colleen Kollar-Kottely suspended the activities because she felt abuses were rampant, and Judge Robertson quit the program over it.

Also, if you read the conclusions in the FISA court of review which you invoked, you'll see that even they had tremendous difficulty rendering any kind of decision about this.

Obviously it is not the cut and dried matter you're suggesting.

I'm sure the Republican take on the story will play well in Peoria; as I've pointed out to you before, some of the worst crimes in history were carried out by mobs of people or entire nations who were duped about basic matters or let their leaders appeal to the worst in their natures. Also, the legal and long-term policy issues remain. Do we want an imperial presidency? I don't. 9/11 changed nothing. Do you remember when the British burned down the White House? We didn't turn the country into a police state then and we shouldn't now.

One truism that has been proved again and again throughout history is that absolute power corrupts absolutely. I don't know why you are unable to see that; perhaps you have your Bush blinders on. We don't even need to look to the most egregious examples: the expanded intelligence gathering powers of the Patiot Act have been used mostly to provide convictions for non-terrorist related activities, while spending an awful lot of time attempting to keep tabs on who is checking what book out of what library.

Mission creep is deadly to liberty, as is just surrendering one's rights little by little. I'm not afraid of terrorists, and don't believe giving up the very liberty that defines us as Americans is the answer to stopping the problem. That is exactly what bin Laden wants to happen, a secular caliphate where everyone lives in fear and cedes all responsibility to the Party or President.

When that happens, the dream of America is dead.

Posted by: Windhorse on December 21, 2005 at 2:25 PM | PERMALINK

Good on ya, Windhorse.

Posted by: E. Henry Thripshaw on December 21, 2005 at 2:33 PM | PERMALINK

Imagine that. But the part you are relying on says that the AG gets to decide whether those conditions are met. Think of John Ashcroft, would you want John Ashcroft deciding whether those conditions were met? I thought not, objection overruled.

Um, no. The attorney general has to ensure those conditions are not, not flip a coin and decide whether he wants to meet them or just say "aw, fuck it." At that time, he could only authorize a search if he met the statuatory requirements -- which were that they not be used for searches involving the premises, information, material, or property of a United States person.

Also, with regard to the Gorelick memo, at the time "physical" searches were not covered under FISA. FISA was later amended to cover them. So appealing to Gorelick as an authority is moot.

As for whether your were directly suckling at Drudge's man-breasts or doing it second-hand, that's pretty much immaterial to the fact that you used him as an authoritative source.

Posted by: Windhorse on December 21, 2005 at 2:38 PM | PERMALINK

Flee, trolls. Windhorse has the wind at his back.

Posted by: Pale Rider on December 21, 2005 at 2:38 PM | PERMALINK

windhorse, at last, common ground

That is a relevant but weak claim. Elected officials claim powers for themselves all the time; testing those claims are what the courts are for.

Absolutely this is a constitutional issue for the courts to settle. We've had a number of suggestions as to how that will go with the WH appearing quite confident they have the constitution on their side. MY bet is GWB would like nothing better than to see this ruled upon and settled permanently.

John Schmidt gave his opinion on the matter. His opinion clashes with those of all the career NSA guys who came forward and broke this story because they did not believe the program was either legal or had the appropriate Congressional oversight (which it had none). Head FISA judge Colleen Kollar-Kottely suspended the activities because she felt abuses were rampant, and Judge Robertson quit the program over it.


I agree it did not have Congressional oversight but it was not kept secret either and Senators are hardly helpless in being able to effect change when they see it necessary.

As far as the judges we do know Robertson is a partisan hack who's been rebuked on his decisions a number of times. I am not remotely impressed with this reaction.

As far as the NSA guys who came forward was that 2, 3, 33? Out of how many? This is why Clinton was so terrified of the CIA. In any organization of 80,000 with a history of leaking all Presidents are screwed. They've got a small army of partisan political hacks working for them hoping to take a piece of their ass.

What we don't know and need to know is if this program is as advertised. If in fact there were some nefarious events such as spying on political opponents for partisan gain then throw those doing it in jail. If the President ordered this or knowlingly allowed it to occur then let the impeachments proceeding begin. But if in fact these guys were doing he hard work of hunting down terrorists and being professional and ethical than GWB is a hero for ordering this and keeping it going. The facts suggest this is so including their 45 day sunset provision.

My bet is the good guys were acting professionally and their only goal was to protect innocent Americans and that's what will come out. Further if this goes to the courts the Democrats lose politically and lgally

You appear weak on national security because you are weak.

Posted by: rdw on December 21, 2005 at 2:54 PM | PERMALINK


Also, with regard to the Gorelick memo, at the time "physical" searches were not covered under FISA. FISA was later amended to cover them. So appealing to Gorelick as an authority is moot.

Absolute nonsense, Gorlick is still a GOP star. It doesn't matter what the FISC said or ruled. Gorlick was stating her opinion the President had the authority under the constitution or order wiretaps without consulting Congress because Congress cannot abridge powers granted to the executive under the constitution.

Posted by: rdw on December 21, 2005 at 3:02 PM | PERMALINK

Why in the world didn't Kevin simply note that the Constitution simply says the the President is the CIC of the army and navy and militia, which provides absolutely no power whatsoever to do anything to anything outside those institutions? Please, let's roll.

Posted by: Neil' on December 21, 2005 at 3:08 PM | PERMALINK

Actually rdw, YOU appear weak on national security because you haven't ordered Muslims into detention camps, required papers to pass from city to city and state to state, because you haven't instituted a citizen-spying program, and you're not kidnapping citizens off the streets to question their knowledge of terrorist-related activites.

Why are you so damn weak? Why are you bringing that lame ass shit of yours here and calling it protection?

I'll tell you why: because national security is balanced against personal liberties. Absolute national security means a police state that would be mutually exclusive with having a democracy.

As for looking weak, I know you mean Democrats but I can't speak for them because I'm not one. I can only speak for myself, and as for myself I have been calling for fitting all of our ports with radiation detection arches so that the single biggest threat -- a nuke -- can be prevented from entering the country. Wanna know how much that costs? About six hours worth of what we spend in Iraq. But your leader won't spend the money. After 9/11 when Bush cut police and emergency responder funding I decried that, coming from a family of policeman and frankly just having common sense.

Bush's trick is that he puts on the appearance of being strong while actually not doing the critical things that would protect the country, and you fall for it over and over. And creating a terrorist training ground in Iraq -- which nobody denies, not even our own intelligence agencies -- was the worst mistake ever. Who knows how many al-Qaeda were killed after 9/11, but my money is that Bush created al-Qaeda juniors to more than make up for it. The list of things that would actually make us safer without depriving us of liberties goes on.

The trick to power and strength is to use it wisely, not to lash out wildly without forethought and make the problem worse or worse, to violate the use of power to acquire political gain, which isn't power but moral weakness.

And finally, you appear cowardly and fearful of terrorists because you are cowardly and fearful. If you weren't, you wouldn't be handing over your freedoms like clockwork whenever asked.

Posted by: Windhorse on December 21, 2005 at 3:16 PM | PERMALINK

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms.

If so (which is not actually true) then ever president would be wrong.

Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

The key phrase there is "foreign intelligence purposes." Again, "foreign," as in outside the US and directed against foreign intelligence services, not "domestic," as in involving US citizens or persons resident in the US.

Posted by: Stefan on December 21, 2005 at 3:17 PM | PERMALINK

Gorlick was stating her opinion the President had the authority under the constitution or order wiretaps without consulting Congress because Congress cannot abridge powers granted to the executive under the constitution.

Quite the contrary, here's what she actually said:

That being said, the Department of Justice believes that Congress can legislate in the area of physical searches as it has done with respect to electronic surveillances, and we are prepared to support appropriate legislation. A bill that strikes the proper balance between adequate intelligence to guarantee our nations security, on one hand, and the preservation of basic civil rights on the other will be an important addition to our commitment to democratic control of intelligence functions. Such a bill would also provide additional assurances to the dedicated men and women who serve this country in intelligence positions that their activities are proper and necessary
Posted by: Windhorse on December 21, 2005 at 3:33 PM | PERMALINK

The attorney general has to ensure those conditions are not
And you're willing to take John Ashcroft's word that those conditions are met? Right. Objection stilled overruled.

immaterial to the fact that you used him as an authoritative source
I can see you're having trouble with this, so I'll type it slow: I. Didn't. Use. Drudge. As. A. Source.

Windhorse has the wind at his back.
That's flatulence.

Again, "foreign," as in outside the US and directed against foreign intelligence services, not "domestic," as in involving US citizens or persons resident in the US.
As in Aldrich Ames?

Posted by: conspiracy nut on December 21, 2005 at 3:34 PM | PERMALINK

That's flatulence.

Weak attempt at humor, considering that Windhorse has just posted some very thoughtful comments. Read the 3:16 post. Consider,

I'll tell you why: because national security is balanced against personal liberties.

Balance. Hmmm, now that's quite a concept. For you scaredy cats, consider that you can be safer still. As Windhorse carefully points out, the ultimate safety is reachable within the confines of a pure police state. Why do you not advocate that in your retching about the weakness of the left on security issues?

And worth repeating, again from Windhorse,

The trick to power and strength is to use it wisely, not to lash out wildly without forethought and make the problem worse or worse, to violate the use of power to acquire political gain, which isn't power but moral weakness.

Wise words indeed.

Yes CN, this person is clearly in need of farting jokes.

Lame.

Posted by: E. Henry Thripshaw on December 21, 2005 at 3:49 PM | PERMALINK

And you're willing to take John Ashcroft's word that those conditions are met? Right. Objection stilled overruled.

I'm not, and that's what Congressional oversight is for. Because any public official can be corrupt -- or crazy, like Ashcroft, the Founders instituted a system of checks, one of which is oversight. So I don't have to take Ashcroft's word.

A copy of the Constitution can be found at your public library.

As for the Drudge/man-breasts thing, I apologize, I was wrong. I did assume you linked to Drudge and not to the White House. That was unfair, and I'll be more careful next time.

I don't feel that badly about it, though, because you engage in a lot of name-calling here, and I was really just trying to respond in kind.

Posted by: Windhorse on December 21, 2005 at 4:08 PM | PERMALINK

E. Henry
Balance national security against personal liberty, hmmm, when did you lefties cotton on to this concept? I wasn't aware national security had any implications for you. Here's a for instance: was it the left or the right arguing against one of the only two things we can do to keep flights safer, profiling? No national security concerns, only personal liberty, ACLU, politically correct.

Wise words indeed.
And no doubt you think you lefties are paragons of wisdom, carefully weighing the various options and consequences. Here's a clue: the only consistency in the left is pounding Bush. You use liberal arguments when liberal arguments pound Bush, you use conservative arguments when conservative arguments pound Bush. The word for that is reactionary.

You may climb down off your high horse, you are as shallow as Windhorse. Flatulence jokes raise the standard around here.

Posted by: conspiracy nut on December 21, 2005 at 4:09 PM | PERMALINK

I'm not
Thank you. And that is exactly what Clinton authorized: that we take John Ashcroft's word that the law was followed.

I trust you'll not be relying on Clinton's trusting the AG to insure the conditions were met for warrantless wire taps again?

Posted by: conspiracy nut on December 21, 2005 at 4:14 PM | PERMALINK

windhorse,

ordering innocents into detention camps is a liberal trick. Refer to FDR.

As far as your screaching about our loss of civil liberties tell me how I can recognize this so I can see it for myself. I see no losses. if by chance some Al Qaeda freak calls my house and that makes them nervous then by all means do some wiretapping so you can be comfortable I am not involved in anything. Once you've poven that remove the wiretap and destroy all records and we're peachy keen.

If that's what you are talking about GWB will be more than happy to hand you your heads in the next election for the 4th time in a row.

Posted by: rdw on December 21, 2005 at 4:24 PM | PERMALINK

windhorse,

You are wrong on Gorlick. She specifically reserved the rights of the President to authorize warrantless seraches outside the review of the Congress.

One thing is for sure. We're not going to solve that here and Jamie will have no say in the matter. What is clear is the Bush WH is confident in it's position and leaving it up to the Congress to try and do something about it.

The Congress has a very interesting choice. They can piss and moan but go along. Thus setting a precident they'd prefer not to set. Or they can decide to take it to the judiciary and take their chances with a Roberts/Alito court. If they lose they hand Bush a historic victory.

One think you have to admit about George. He has a set of balls. He is not backing down. He is essentially telling Harry Reid, "Go ahead, Make my day". By being so aggressive Harry has little choice. What would the loons on this post do if he backed down?

Posted by: rdw on December 21, 2005 at 4:38 PM | PERMALINK

You know Bushco are not serious about combatting terror, we have not had one terror alert since last year's election. When Mayor Bloomberg and the NYC police dept tried to raise one during the mayoral campaign, they were shouted down by DHS.

This is all a game to these people and another attack would serve their purpose all too well.

Guaranteed you won't see another color-coded alert until/unless Bush is under some serious political pressure.

Posted by: meade on December 21, 2005 at 4:42 PM | PERMALINK

Are we at war? Yes, we are. The US has only declared war formally 5 times. We were at war in Korea, Vietnam and Kosovo without formal declarations.

In this war, bin Laden declared war against us in 1998 though one could argue Islamofascists have been at war with us "infidels" for a much longer time.

The President is Commander-in-chief at all times - not just in times of war. If China launches missiles at us, for example, we are at war wheather the blowhards on Congress say so or not and we would expect/demand that the PResident act.

Any President must use surveillance domestically and internationally during war. Do you suppose that FDR foresake domestic intelligence during WWII?

What is going on now is an unprecedented level of traitorous behavior on the part of most Democrats in Congress and the Press which fails to report the whole truth not only in this matter (note: the legal precedents in Bush's favor) but the war in Iraq. By the way, leftists, if Iraq is the Cluster-F___ you say it is, how did eleven million people vote?

John Sorg
Indianapolis

Posted by: John Sorg on December 21, 2005 at 4:45 PM | PERMALINK

stefan,

The Supreme Court will decide if the President can bypass FISA terms and the decision is up to Harry Reid to take it that far.

Does he really want to risk giving GWB a historic expansion of Presidential powers knowing the Roberts Alito court was designed for this purpose?

This is political hardball at it's best. The question is will Harry play or will Harry fold. Either way Bush wins. He's chasing terrorists. Harry is trying too protect them.

Posted by: rdw on December 21, 2005 at 4:48 PM | PERMALINK

meade.

There's no denying you're a liberal. Did you notice GWBs polls were at all time lows a month ago and Dean and Kerry were killnig him?

Miss that did ya?

Only a liberal could push that theory.

Posted by: rdw on December 21, 2005 at 4:51 PM | PERMALINK

And finally, you appear cowardly and fearful of terrorists because you are cowardly and fearful. If you weren't, you wouldn't be handing over your freedoms like clockwork whenever asked.

I've asked 20 liberals and none have been able to show me how my rights have been abridged. I haven't seen a single change. Until you can provide these examples to the American people you're just another fool with your hair on fire.

BTW: I'm not fearful. I'm not afraid. I wasn't fearful or afraid when I was sailing around the med providing you the blanket of freedom you slept under every night in the ealy 70's. Of course I might as well have been on the Love boat for all of the danger I was in but that's not the point. The point is Al Gore is full of crap. No one played on our fears. Quite the opppsite. We have an action plan for kicking terrorist ass. We will exterminate them and everyone supporting them. And we will not change any of our civil liberties in the effort.

Posted by: rdw on December 21, 2005 at 5:00 PM | PERMALINK
The Supreme Court will decide if the President can bypass FISA terms and the decision is up to Harry Reid to take it that far.

The only way this gets to the Supreme Court is if someone gets criminally charged with violating FISA (conceptually, the Congress could pass a resolution calling for a lawsuit, but, as I'll get to, that is not going to happen, in any case; also, conceptually, someone targetted by the wiretaps could sue, but that would require a leak of who had been targetted, which isn't very likely.)

No one subordinate to Bush is going to be charged while Bush is in office, since his Justice Department is run by someone who has already claimed this is completely legal, and since Bush himself authorized the wiretaps.

So, the only way this gets to the Supreme Court is after Bush leaves office. But if he leaves office in 2009 after a normal election, there is little chance that the new administration will seek charges, though its possible.

Most likely, it gets to the Supreme Court if, and only if, Bush is impeached by the House and convicted and removed by the Senate, and then, himself, charged with criminal violation of FISA.

Posted by: cmdicely on December 21, 2005 at 5:56 PM | PERMALINK

The President does not need a war to excercise his constitutional authority!
Remember, Congress can not make laws infringing on the Presidents inherent constitutional powers. These powers that are aimed at protecting the country from foreign not dometic enemies. That infringement would be a violation of the seperation of powers created in the constitution. The President never relinquishes his duties as commander in chief. The country is at all times on alert and the President does not need to wait for a declared war to exercise his authority. Why do you think the War Powers Act only requires the President to report to Congress AFTER he has used military force. So Congress can cut the purse strings if they don't like what he is doing.
It is also part of the political process that the President will have to answer to the electorate for his actions.
Also, the specific actions of the President that we are getting all exercised about were aimed at protecting America from another attack in early 2002. Do you think people thought we were at war in early 2002? for that matter what about in late 2005.

Posted by: berlins on December 21, 2005 at 6:09 PM | PERMALINK

This thread has continued far longer than I imagined it could.

I just want to make this observation: It just astonishes me to see the rightwing defending anything done by Bushco--secrets, death squads, torture, spying on American citizens, propaganda, criminal actions by the President--all in the name of "protecting Americans from terrorism." The motive, I would assume, has little to do with terrorism and a great deal to do with their paranoia about Democrats.

I am increasingly concerned about being protected from the American rightwing.

Posted by: PTate in MN on December 21, 2005 at 6:24 PM | PERMALINK
The President does not need a war to excercise his constitutional authority!

Setting rules for intercepting foreign communication, in peace or war, is a Congressional power under the Article I, Sec. 8 commerce power.

Setting rules governing the capture of material or communication from hostile powers is a Congressional power under the Article I, Sec. 8, captures power.

To the extent that legal executive search powers -- which are not an enumerated Article II power -- are necessary and proper for carrying into execution the functions entrusted to the President in Article II, the power to prescribe laws providing and delineating those powers resides in, again, the Congress, under the Article I, Sec. 8 "elastic clause" providing that Congress has the authority "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."


Posted by: cmdicely on December 21, 2005 at 6:27 PM | PERMALINK

Another question that needs to be asked is how do we measure victory in a "war on terror". Terrorism is a technique and we can no more destroy a technique than we can destroy the letter "A" from the alphabet. We might as well be declearing a global war on "A". Or rather a "Globl Wr on _".

Posted by: senorjacob on December 21, 2005 at 6:34 PM | PERMALINK

Kevin,

Nice post. However, reading through the comments is very depressing. As a Democrat for all my life who has lived abroad for his entire adult life, mostly in Asia, I now understand better why it is the Dems have lost so much ground and are on their way to losing more. I'd explain in detail what it is that pains me so, but I'm quite sure, given the tone and substance of the discussion here, that I'd be villified. (But just to prove my point, for starters you would be well advised to lose the "whole world hates Bush" nonsense. For the facts are much more complex and favorable to the Republicans than you might imagine. Much to my chagrin. ) Anyway, when the Party of my parents and their parents gets down to about 35 Senators then maybe a civil discussion could ensue. Until then, let the delusions continue. Again, Kevin, nice post I thought, and it certainly clarified the nature of a good part of your readership. Again, much to my chagrin.

Posted by: emery on December 21, 2005 at 6:40 PM | PERMALINK

It just astonishes me to see the rightwing defending anything done by Bushco
It just astonishes me to the you moonbats pounding everything done by Bushco. You'd think you guys could support something: massive increases in education spending, war of liberation in Iraq, increased Medicare benefits, all that liberal shit. But nooooo.

And take this, the the NSA intercepts are nothing new; but it has you all barking at the moon like civilization as we know it is coming to an end.

On the bright side, you are fun to watch.

Posted by: conspiracy nut on December 21, 2005 at 6:47 PM | PERMALINK

cmdicely,


I am not a lawyer and could not get into the weeds on this even if I wanted to.

What do you think the prospects are for this to go to the Supreme court?

Clearly the current Justice department has a different opinion than you and they have much support from prior Justice Depts and previous Presidents including Jimmy Carter.

It's just as clear the WH is anxious for this battle. Far from backing down they are all but begging Senate Democrats to take this to the courts. What's fascinating here is many Republicans Senators see this as a fight for power between the Executive and the Legislature rather than a partisan battle. I'd like to think that makes it more likely for a Supreme Court fight to commence.

What are your thoughs as to what happens next?

Posted by: rdw on December 21, 2005 at 7:25 PM | PERMALINK
What do you think the prospects are for this to go to the Supreme court?


My 5:56pm posts pretty much covers my thoughts on that.

Clearly the current Justice department has a different opinion than you and they have much support from prior Justice Depts and previous Presidents including Jimmy Carter.

Its hardly surprising that the executive branch of the US government -- whoever controls it -- tends to, at least in the abstract, view executive power fairly expansively. Without repeating the debate that's already happened about the applicability of the Carter and Clinton-era precedents, and how distinguishable the circumstances and facts are between those and the present cases.

It's just as clear the WH is anxious for this battle. Far from backing down they are all but begging Senate Democrats to take this to the courts.

Since Senate Democrats, per se, rather clearly have no standing to sue under well-established precedent whatever the merits of the substantive legal argument are, that's hardly surprising. The White House is clearly not angling for a court battle on the merits.

What's fascinating here is many Republicans Senators see this as a fight for power between the Executive and the Legislature rather than a partisan battle.

Well, since its a pretty clear case of the Executive claiming authority to ignore the clear text of a law passed by Congress, its pretty easy to see why they see it as an Executive/Legislative fight.

I'd like to think that makes it more likely for a Supreme Court fight to commence.

Well, since the only way anyone in the Senate is going to be able to challenge this is going to require at least a majority, if not a supermajority, of the Senate (as well as, in any case, a majority of the House) its pretty much a given that some Republican support is a threshold requirement.

Posted by: cmdicely on December 21, 2005 at 7:40 PM | PERMALINK

conspiracy nut:"It just astonishes me to the you moonbats pounding everything done by Bushco. You'd think you guys could support something: massive increases in education spending, war of liberation in Iraq, increased Medicare benefits, all that liberal shit.

"All that liberal shit". These programs are shit, I agree, but the shit is not liberal. The fact that you think these are liberal suggests how little you understand about conservatism AND liberalism. One big difference is that liberals believe government can "promote the general welfare" competently, efficiently and without running up huge deficits. Whereas Bush conservatives, who start with the conviction that government is the problem, view Uncle Sam as a sugar daddy. Competence doesn't seem to be matter--it is all about power. How much can they loot from the treasury before someone catches on?

Actually, there are a couple of Bush initiatives that I could have supported. The first was the Millennium Challenge Account to reward sound government in developing countries. The second is the HIV/AIDS program. A third would be some kind of meaningful intervention in Darfur.

But, of course, like every program touched by Bushco, these are incompetently run.

Posted by: PTate in MN on December 21, 2005 at 7:46 PM | PERMALINK

cmdicely

I did not see your 5:56 post so ignore my previous post.

I find this extremely confusing.

How can Bush be impeached if he hasn't been charged with a crime and there's substantial disagreement a crime has been committed?

That makes absolutely no sense.

Also, The President can't be sued for the actions of the govt or his decisions as President.

In the Clinton example his crimes were of a personal nature and preceeded his Presidency.

At a minimum for an impeachment the Congress will have to charge Bush with violating a statute the Justice Department has aleady advised does not apply. For that charge to hold then the Justice Dept will have to be overruled by the courts.

I suspect this alone will take a full year.

Posted by: rdw on December 21, 2005 at 7:53 PM | PERMALINK

cmdicely,

sorry I'm so slow on the uptick. I'm doing a few things here.

You are suggesting there won't be any charges by the Congress because they won't get a majority vote.

So how will there be an impeachment?

Posted by: rdw on December 21, 2005 at 8:00 PM | PERMALINK

Since Senate Democrats, per se, rather clearly have no standing to sue under well-established precedent whatever the merits of the substantive legal argument are, that's hardly surprising. The White House is clearly not angling for a court battle on the merits.

Why can't the Senate democrats sue?

I disagree on the WH. They are being especially compative. At this point if the Senate democrats do not push hard they will look like sissy's and infuriate their base. They've managed to get their hopes high for impeachment they can't wimp out now. This cow has left the barn.

Posted by: rdw on December 21, 2005 at 8:06 PM | PERMALINK

emery,

what can you tell us of Asia?

I am reading that our relations with Japan, Korea, Indonesia and Pakistan, among other places, are much better than commonly perceived.

I know GWB had a good rapport with Kouzimi having mostly settled the contentious issue of our bases in Okinawa by removing troops and taking a lower profile. We are also suppporting a Japanese seat on the security council, a seat in the North Korean negotiations and toning down the trade rhetoric. Japan has also been extremely supportive in Afghanistan and iraq.

IN Korea we've taken the same lower profile with out troops and have made even more significant reductions. South Korea is also sitting at the negotiating table with North Korea and pursuing bi-lateral talks with US support.

In Indonesia and Pakistan our polling data has improved sharply thanks to our disaster relief efforts and I suspect the success in Afghanistan and now iraq with elections combines with the brutality of Al Qaeda against Muslims has caused Asians to rethink their views of Americans.

I hardly think we're best friends but it seem things are much better than they've been and getting better.

Posted by: rdw on December 21, 2005 at 8:24 PM | PERMALINK

ptate,

how is it conservatives are supposed to be terrified of liberal congressmen when liberals are furious at them for letting the conservatives roll them over?

I'm thinking if the conservatives have been rolling them over they're not too afraid.

Posted by: rdw on December 21, 2005 at 8:37 PM | PERMALINK

'm thinking if the conservatives have been rolling them over they're not too afraid.

I'm thinking if the conservatives can't get the Patriot Act renewed, if they can't pass Social Security "reform," if they can't get drilling in ANWR passed, if the only way they're getting anything passed is by abuse of the parliamentary system --

The conservatives haven't been rolling over liberals at all.

Man that's gotta hurt.

Posted by: trex on December 21, 2005 at 9:34 PM | PERMALINK

cmdicely,

You are indeed stretching the meaning of the General Powers of Congress.

Article I Sec.8 commerce clause states "To regulate the Commerce with foreign Nations and among the several States, and with the Indian Tribes"

This is what you said
"Setting rules for intercepting foreign communication, in peace or war, is a Congressional
power under the Article I, Sec. 8 commerce power."

OK if you say so. But I don't think that is what the commerce clause said! I will let the viewers decide.

You said
"Setting rules governing the capture of material or communication from hostile powers is a
Congressional power under the Article I, Sec. 8, captures power."

The answer is:

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water"

I did not see anything about the capture of communications from hostile powers. You sir, are completley delusional. This clause does not govern the rules of war but the rules that govern what will be done with the enemy countries money, property, personnel, etc.. at the outset of war and what happens to the commerce and property on the water. There is ample constitutional scholarship on this subject. I like how you try to slip in the part about "material or communication from hostile powers" not even close bid.

http://press-pubs.uchicago.edu/founders/tocs/a1_8_11.html
Article II Section 2.

The President shall be commader in Chief of the Army and Navy of the Unidted States, and of the Militia of the several States, when called into the actual Serrvice of the United States

That's all he needs approve a wiretap on a US citizen recieving a call from an Al-Qeada Terrorist. The are not enumerated because the rules of war change from war to war. To fight a war there isn't a book to go to for the law you need to use in any particular instance!

Your elastic clause is also a complete misinterpretation of the clause and ironically the only time you printed it correctly.

"To make all laws which shall be necessary and
proper for carrying into execution the foregoing powers,..."

Note the foregoing part. I won't print the rest of Section 8 but suffice it to say none of the "foregoing powers" said anything about war powers other than financing war and declaring war.


"...and all other powers vested by
this Constitution in the government of the United States, or in any department or officer
thereof."

This clasue is to enact laws necessary to enforce the Constitution. That would mean they would not be able to enact any law contrary to the constituion. Legal executive search powers as you would call it, or conducting a war against an enemy which is what I would call it, has nothing to do with Congress and some elastic clause. The President in his capacity as Commander in Chief can authoritize eavesdropping on US citizens that may recieve or send communications to foreign countries. This right has been upheld by the FISA courts.

Posted by: berlins on December 21, 2005 at 10:30 PM | PERMALINK
he President shall be commader in Chief of the Army and Navy of the Unidted States, and of the Militia of the several States, when called into the actual Serrvice of the United States

That's all he needs approve a wiretap on a US citizen recieving a call from an Al-Qeada Terrorist.

Er, no, its not. The designation of the President as Commander-in-Chief prevents military command from being separated from the elected office of the Presidency to some other authority, it provides no power over anything but the military (and militia in federal service) itself, and provides no power over the military (and militia in federal service) independent of the Congress Art. I, Sec. 8, power to provide rules governing the military (and militia in federal service). The designation of the President as Commander-in-Chief is simply a limitation which prevents Congress from using its power to regulate the military to divorce military command from the Presidency, not a grant of independent power to the President.

Posted by: cmdicely on December 21, 2005 at 11:13 PM | PERMALINK

If I were a President who wishes to extend and consolidate executive powers, for Republican executives only, I would certainly start a war on something everlasting, like terrorism, especially if my "legal authority [to do so] is derived from the Constitution, as well as the authorization of force by the United States Congress."

It would be in my interest, therefore, to start such a war soonest. Once I got this war off the ground, it is 'carte blanche' for me all the way, in matters of executive snoopervision.

When my second term approaches closure, the information gleaned from my executive program will be held in my private library, which is off limits to everyone except my Republican people. Yup, I believe in privacy rights.

And who is going to stop me? No one, that's who.

Only those who possess the crucial dots shall be able to connect them to make the picture, and this is what executive powers are all about. For my last act as President, I would extend my executive gratitude (and clemency, if required) to those who gave me the benefit of the doubt. They made my day. There ain't nothin' like a faith-based presidency.

Before you all get your shorts in a knot, know this: It is technically feasible for small groups of foreign elites to permanently shut down all electrical infrastructure in the Lower 48 and southern Canada. It would take about an hour or so to do this, and not a single bomb needs to touch the ground. Therefore, Canadians shouldn't badmouth me so much. They're involved, whether they think so or not. And so, yes, I would do everything in my powers, as President of the United States, to see that this shutdown doesn't happen.

Anybody scared yet?

Posted by: Pooter Express on December 21, 2005 at 11:19 PM | PERMALINK

Er, yes, it is. NSA is part of the Military of which the President is the commander and he has the Authority not Congress. The Congress can't give an order to the Military. Man you just don't get it. You also don't understand the meaning of any of the clauses that you mis-quote and misinterpret. You are refering to the clause giving to congress organizing, arming and disiplining the militia. This would refer to the State militias. Today we would call it the National Guard. And again, War Powers are the Presidents and the Presidents alone. remember that every four years you can vote him out if office if you think he deserves it.
That is the American way.

I guess you just don't believe Bush is doing this as part of a "War". You think that he wants to evesdrop on US citizen just for fun. When he needed the FISA courts he went to them when he needed something more efficient and effective he did that in order to protect the US and its citizens

Posted by: berlins on December 21, 2005 at 11:38 PM | PERMALINK

trex,

The Senate passed a 6 month extension and will be able to negotiate in time for the 2006 campaign. The last time the Democrats tried to play games with Bush on security during a campaign Max Cleland lost his job.

Missing on SS reform and ANWR doesn't hurt at all.

SS reform was not going to impact me under any circumstances and GWB has put it on the table. It's no longer the 3rd rail. I think you'll see this referred to often over the next 25 years whenever Historians compare GWB and Slick Willlie. GWB was rather timid and stuck with the 'little' things, like SS reform. Bill Clinton on the other hand was bold and aggressive. He pushed school uniforms.

As far as ANWR I am thrilled as I mentioned in an earlier post. With prices above $50 let that oil sit in the ground for the next generation. At these prices tons of money is being invested in alternatives such as the TAR SANDS. Thereis over $60B committed and financed and another $30B waiting. Scheduled construction will raise daily production from 1M Barrels per day to 3M within a decade. It's all destined for the USA and that will more than meet demand. The best part of this is the fact that this is the dirtiest energy source at the point of extraction. Canada wasn't going to meet it's Kyoto obligations anyway. Rather than decrease emissions they will be increasing them and will be paying Russia over $10M for credit offsets. Russia has done nothing to lower pollution. This will not only piss off everyone in Canada as the rest of the sane world laughts at them for being so stupid but it will obviously destroy Kyoto.

This crap of energy independence is bonehead stupid. This is a global market. We pay a global price no matter where it's produced. We can pollute Alaska or we can pollute Canada. Gee, what a hard call. Of course if I were a true believer in Global Warming I'd be furious. Drilling in ANWR is far, far, far cleaner than taking tar sands and extracting the oil. The process itself uses tons of carbon emitting energy. But at $50 they can make a very tidy profit and they want to do it so let them.

For this conservatives ANWR is a beautiful thing. A majority of Americans favor drilling so it's good to keep it as an issue. The Oil in the ground will keep for later use. Best of all we're scrwing over the Kyoto crowd and they have no idea of the train wreck coming. I personally can't wait to hear Canadian politicians explaining to their citizens they have to pay Russia for doing absolutely nothing. Kyoto will be getting the ridicule it so richly deserves.

Posted by: rdw on December 21, 2005 at 11:39 PM | PERMALINK

Pooter,

That's good. It sounds like just about every President we have ever had has used that ploy.

Posted by: Berlins on December 21, 2005 at 11:44 PM | PERMALINK

rdw: "how is it conservatives are supposed to be terrified of liberal congressmen when liberals are furious at them for letting the conservatives roll them over?"

It's a conundrum indeed.

I believe the key is that Conservatives are not terrified of liberal congressmen, they are terrified by their idea of liberal government. These are a different things. A liberal congressmen is a known commodity.

The conservative concept of liberal government is a paranoid delusion: The Liberals would expand the size and scope of government. Liberals would spend recklessly. Liberal government would be a Big Brother, listening in on private conversations. The liberal government would seize all their money and guns. The liberals would take away all their freedom. The liberals would force everyone to be gay. The liberals would suppress all variety among people in the name of equality. Liberals would stop at nothing to squelch the conservatives. Liberals will create Gulags and secret police.

It is no wonder conservatives are terrified. They have done a global substitution of "liberal" for "Stalinist" in their inner unexamined representation of The Opposition.

Liberals are furious at liberal congressmen because they are letting the conservatives define them in this nutty way.

Posted by: PTate in Mn on December 21, 2005 at 11:49 PM | PERMALINK
Missing on SS reform and ANWR doesn't hurt at all.

Missing on SS reform and ANWR is proof that conservatives aren't rolling over liberals, and is the only thing that's relevant to my point.

Not how you feel about SS, not what happened to Max Cleland, not Kyoto or the Tar Sands which have nothing to do with the anything. Republicans control all the organs of government and yet they're stymied time and time again by the minority party. They're so weak they're reduced to bypassing ordinary parliamentary procedures: they're stealing legislative wins by open-ended floor votes and bribes and threats. Bush even had to circumvent Congress on the wiretapping issue for fear of losing even the FISA program that he had. They're tenuously holding on to the reins of power through treachery and deceit.

Weak, weak, weak.

Guess it's time to start informing the American people about it.

Posted by: trex on December 22, 2005 at 12:16 AM | PERMALINK
NSA is part of the Military of which the President is the commander and he has the Authority not Congress. The Congress can't give an order to the Military.

Congress cannot give a specific order to the military; however, it is specifically given the power under Article I, Section 8, to make laws governing the conduct and discipline of the military, which includes setting the legal requirements that must be met for certain types of operations to be conducted by the military.

You also don't understand the meaning of any of the clauses that you mis-quote and misinterpret.

What have I misquoted?

You are refering to the clause giving to congress organizing, arming and disiplining the militia.

No, I'm not (well, not primarily, though it was referred to parenthetically as a related though not directly relevant provision.) I'm referring directly, among others, to the clause giving Congress the power "To make rules for the government and regulation of the land and naval forces", which precisely maps to the forces (Army and Navy) that the President is Commander-in-Chief of under Article II.

And again, War Powers are the Presidents and the Presidents alone.

There are some "war powers" in the Constitution. Of those that could reasonably characterized as such are Congress' power to declare war; Congress' power to govern land and naval captures; Congress' power to define and punish violations of international law, including laws of war; Congress' power to govern the military; Congress' power to govern the militia when called into federal service; Congress' power to provide for the calling of the militia into federal service in the first place; the power of the states to engage in war where a direct threat occurs; Congress' negatively implied power to restrict habeas corpus in wartime; Congress' negatively implied power to provide, by law, for quartering of troops in private homes in time of war; and the power to charge capital or infamous crimes without an indictment in time of war or public danger.

All of these powers share one thing in common, except arguably the last -- they are not federal executive powers.

Now, where, exactly, do you see Presidential "war powers" in the Constitution, and what do they consist of?

Posted by: cmdicely on December 22, 2005 at 12:31 AM | PERMALINK

trex,

The GOP house doesn't even talk to the Democratic house. All bills are written by conservatives in the house. The Senate, as designed, is a more moderate body. There the Democrats have to resort to filibusters to defeat measures but those that pass are written by the GOP. As we've seen with the Patriot Act the GOP got 98% of what it wanted in the Senate and after conference with the House they'll get 99%. I'll take 99% every day.

Bill Bennett has a great line: "Either you are playing offense or you are playing defense. Playing offense is always better." Nancy Pelosi doesn't get to play at all and Harry plays only defense. It's not a perfect world but I am OK with that.

BTW: Kyoto is CRITICAL. It is the combined result of the liberal West represented by Bill Clinton, Canada, Old Europe and the UN heirarchy. This is 100% their baby and it is 100% a DISASTER. This is the dumbest treaty ever fashioned in the HISTORY OF MAN. This is a train wreck.

In a couple/few years Canadians are going to have to come to grips with the fact that despite the millions they've spent to reduce pollution they won't come close their Kyoto limits. There will be a national debate over how they fund what could be a $100M payment to the Russians who've ridiculed the science behind Kyoto and have done NOTHING to reduce their own pollution.

The entire world will be watching this humongous debacle and wondering how any government could be so stupid. No country will EVER consider a Kyoto type agreement unless of course they get to be Russia. Which is of course the ONLY reason they agreed.

You will note that Tony Blair gave two speeches before the recent conference in Canada warning the crowd, "It's over!"

From an economics perspective ANWR would help lower prices but only marginally. Considering prices are still well below Jimmy Carters prices and the economy has obviously weather this price spike well, it makes sense to keep it in reserve. If in the event prices reach $80 they would be able to pass the resolution easily.

In the meantime this is a unique opportunity to use Canada's resources and let them deal with the pollution issues. The Tar Sands are 2nd only to Saudi Arabia in proven reserves and are only a short pipline away. They could easily supply the USA for 100 years.

Posted by: rdw on December 22, 2005 at 8:15 AM | PERMALINK

Now, where, exactly, do you see Presidential "war powers" in the Constitution, and what do they consist of?

I'm no lawyer but I do remember my high school civics. The Founding Fathers didn't accidently leave a blank page here. They recognized their limited ability to predict the future and decided to restrict the Congress but give the President a (nearly) free hand in running wars. The basic thread was that a war run by committee could only bring defeat.

Wise men those Founding Fathers!

Posted by: rdw on December 22, 2005 at 8:22 AM | PERMALINK

trex,

THE PATRIOT ACT: WHO REALLY WON? [Byron York]

A number of Democrats seem to believe they have won by forcing a six-month extension of the Patriot Act. The American Civil Liberties Union sent out a statement last night hailing the agreement as an "important temporary extension [that] will give Congress more time to make meaningful changes called for by bipartisan members in both chambers of Congress." But this deal postpones debate on the Act until June 2006 -- and isn't there an unwritten political rule that the closer one gets to an election, the more difficult it is to filibuster the Patriot Act? Do Democrats -- and the four Republicans in the Senate who went along with them -- really believe they can filibuster the Act less than five months away from an election as easily as they did eleven months away from an election?

Max Cleland will have an opinion on this.

Posted by: rdw on December 22, 2005 at 8:43 AM | PERMALINK

liberals believe government can "promote the general welfare" competently, efficiently and without running up huge deficits.
I call bullshit. Social spending is up 5 fold (adjusted for inflation) since 1961. 5 fucking fold. Your social programs are what is known as runaway spending.

Those are liberal items that I listed, and your inability to even recognize that pretty much indicates that you are not liberal! You are a knee-jerk reactionary lefty.

But don't worry, this blog is populated by knee-jerk reactionary moonbats. You guys have stroked each other so long that you now feel validated.

Posted by: conspiracy nut on December 22, 2005 at 11:02 AM | PERMALINK

BTW, PTate. Your interest in intervention in Darfur is a liberal thing, but so is Iraq. You'll notice that your stance is not liberal, it's simple anti-Bush. Knee-jerk reactionary.

Thanks for the further example.

Posted by: conspiracy nut on December 22, 2005 at 11:04 AM | PERMALINK

Excellent point. My mind was going in the same direction as I scrubbed my floor this morning. Are we in a permanent state of war--like the Romans? Or like Oceania?

Posted by: Neil on December 22, 2005 at 11:07 AM | PERMALINK
How can Bush be impeached if he hasn't been charged with a crime and there's substantial disagreement a crime has been committed?

If Bush is impeached he is, by that act, charged with a crime by the House of Representatives. No other charge is necessary or relevant to impeachment.

There is no requirement for anyone but a majority of the members of the House to agree that a crime has been committed for an impeachment to go forward, and no requirement for anyone but the required supermajority of the Senate to agree for a conviction and removal. There is no requirement that the crime charged be defined in statute law as a criminal violation that ordinary persons might be charged with, the purpose of impeachment is to remedy "crimes" against the order of government for which the regular legal process provides no adequate remedy.

It is, ultimately, a political process that serves to keep the executive and judiciary accountable to the legislature.

Posted by: cmdicely on December 22, 2005 at 11:24 AM | PERMALINK
I'm no lawyer but I do remember my high school civics.

So, you are just parroting an interpretation someone told you the Constitution says rather than thinking for yourself?

The Founding Fathers didn't accidently leave a blank page here.

That's correct. The Founding Fathers didn't, literally or metaphorically, leave a blank page anywhere.

They recognized their limited ability to predict the future and decided to restrict the Congress but give the President a (nearly) free hand in running wars.

A more accurate interpretation, given the actual text, is that they realized their limited ability to predict the future and therefore gave to the Congress clear powers to regulate the conduct of wars and foreign intercourse more generally, which is why the Congress is expressly granted the power to govern the military, to govern the militia when called into federal service, to provide for the calling of the militia into federal service in the first place, to define and punish violations of the law of nations, to set rules governing captures, to regulate foreign commerce, to, by negative implication, suspend habeas corpus if necessary due to invasion or insurrection, etc.

While the President is designated the Commander-in-Chief, and is entrusted with the decision-making authority to assess the conditions in fact against the standards Congress has set out and apply the rules Congress has prescribed, Congress has the power to set the rules, even when it comes to the conduct of warfare. And Congress has the prerogative and responsibility, further, to hold the President accountable to the standards it has set out through law.

The idea that the Constitution should be interpreted narrowly

Posted by: cmdicely on December 22, 2005 at 11:34 AM | PERMALINK

the purpose of impeachment is to remedy "crimes" against the order of government
Crimes against the order of government? I can't wait for the next Democratic president. The Democratic platform is against the order of goverment as far as I'm concerned. If partisan squabbling, however, was grounds for impeachment then Reagan and Clinton were goners. And Carter would have been gone by bi-partisan agreement.

I'm betting the Founders referred to crimes and misdemeanors for a reason.

shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Anything beyond actual, proveable crimes is indistinguishable from partisan bickering. I don't think you've thought through this "crimes against the order of government" stuff.

You lefties would impeach Bush for breathing, just like the right would have impeached Clinton for breathing. But the right actually had to straggle up a crime, and even that wasn't enough. You lefties loved the independent counsel law until it got used on one of your own, I'm betting you'll love this "crimes against the order of government" until it gets used on one of your own, too.

Posted by: conspiracy nut on December 22, 2005 at 11:59 AM | PERMALINK

Hitler came about because the US entered WWI at the behest of J.P. Morgan, who wanted the US to fight on England's side so he would have his English war loans repaid. If the US had stayed out of WWI, probably no Hitler and no Holocaust, because Germany would not have been economically raped by the Versailles Treaty and the National Socialists would have had no reason to exist. It is the US entering WWI that caused WWII to happen, so the veneration of WWII as a 'just' war is wrong. The long list of US 'wars' posted above are almost all imperialist excursions done to benefit capitalists, and had nothing to do with national security.

Before you bring up the Lusitania remember the Iranian Airbus the US Navy shot down, killing almost 300 people. If Iran can stifle its war bloodlust, a democracy like the US should be able to, also. It is to our everlasting shame we entered the European war of the early 20th Century, setting the stage for totalitarian terror.

Posted by: Hostile on December 22, 2005 at 12:39 PM | PERMALINK

It is the US entering WWI that caused WWII to happen
Sure, everything evil that has ever happened is because of the United States. Since 1776 all evil has been a direct effect from our actions, before that, evil happened in anticipation of 1776.

I'm with ya.

are almost all imperialist excursions done to benefit capitalists
Yep, damn those capitalists and their wars. They almost kill as many people as socialists and their peace.

setting the stage for totalitarian terror
You know, everyone running around shouting that they have no right to free speech looks a little stupid. You're ability to complain that we are totalitarian means we aren't.

You moonbats are too much fun.

Posted by: conspiracy nut on December 22, 2005 at 1:25 PM | PERMALINK

In other words, we are now under martial law in the US. And will remain so in the indefinite future, under these parameters.

Impeach Bush - he sold us out to Chalabi on our dollar and our blood. If that is not treason and a high crime giving aid and comfort to the very ememies he is now claiming we are at war with, what is?

Will someone please post a link to provisions allowed under martial law? Thanks.

Posted by: esqtee on December 22, 2005 at 10:45 PM | PERMALINK




 

 

Read Jonathan Rowe remembrance and articles
Email Newsletter icon, E-mail Newsletter icon, Email List icon, E-mail List icon Sign up for Free News & Updates

Advertise in WM



buy from Amazon and
support the Monthly