It was then that the president suddenly decided that judicial oversight wasn't so important after all.

This is obviously a lie, since the NSA wiretap program began in 2001, which is BEFORE the FISA court rejected/deferred wiretap requests.

In pending cases, defense attorneys will demand information on how evidence was gathered against their clients.

But if Bush issues a executive order saying defense attorneys can't demand it, then that won't even be a problem. Under article II of the constitution, George W Bush's executive power and role as Commander-in-Chief gives him the power to issue executive orders in order to protect the national security from terrrorists. This includes issuing orders to ban defense attorneys from asking questions which could be harmful to national security.

'FRUIT OF THE POISONOUS TREE'

Come on everyone. Why all the surprise about BushCo™ doing illegal wiretaps then using the information improperly and-again-illegally to convict suspects? what do you expect from the people who brought us ignored memos about threats to use planes, then wrote memos authorizing torture.

shorter Steve Benen: Bush way big F’-up

The Bush DOJ has fucked up nearly every terrorist prosecution it has handled. Poisoning the evidence to render it unusable in court is just par for the course, I guess.

Is it any wonder that Bush asserts he has the authority to arrest Americans without charge and hold them in secret locations without access to lawyers for indefinite amounts of time, with no possibility of appeal? Or that he says it's perfectly legal to place American citizens before military tribunals where they can be "tried" using secret evidence (evidence so secret that the defense attorney is not allowed to see it)?

Is this administration capable of doing anything right???

Warrantless surveillance would be indefensible otherwise. I always presumed that the administration judged that getting the intelligence value--i.e., stopping terrorist attacks--trumped any law enforcement aims in these cases.

But if Bush issues a executive order saying defense attorneys can't demand it, then that won't even be a problem. Under article II of the constitution, George W Bush's executive power and role as Commander-in-Chief gives him the power to issue executive orders in order to protect the national security from terrrorists. This includes issuing orders to ban defense attorneys from asking questions which could be harmful to national security.

Hmmm. Would you feel the same way if Bush's name were replaced by John Kerry's? or Al Gore? or HILLARY Clinton?

It certainly changes things if you inherently distrust person that you're giving Super Presidential Powers to, doesn't it?

I thought terror suspects were considered detainees thus rendering them no due process rights.

Which country has done more to foil prosecutors attempts to convict individuals related to the 9/11 attacks? America. Withholding evidence for national security reasons made it impossible for German prosecutors to convict individuals.

Maybe they (in the administration) know there aren't really any foreigners guilty of executing the 9/11 attacks after all.

It's not, however, the administration's only problem. There's also issue about using illegally-obtained information -- the ever-popular "fruit of the poisonous tree" -- in criminal cases against suspected terrorists.

This presumes that the Administration has an interest in the effective prosecution of criminal cases against suspected terrorists in the civilian justice system. If, instead, one presumes that the Administration has an interest in creating political pressure and a compelling security and safety narrative either to push the right-leaning Supreme Court to weaken exclusionary rules like the "fruit of the poisonous tree" doctrine" or to use prosecutions being struck down as a lever to push the right-wing meme about overly powerful judges frustrating the popular will and endangering the country, then this "problem" is no problem at all but a useful tool.

You assume the Administration is motivated by policy more than politics, and conclude that they are oddly and inexplicably selectively incompetent. Perhaps a clearer explanation is possible without that limiting assumption.

Steven Benen - did you do ANY research on the legality of the NSA wiretaps, or did you just read newpaper editorials?

PowerlineBlog site has a ton of links about the legal basis for the NSA wiretaps. The attorney-authors at Poweline have linked to legal research and case law and precedent that show the NSA wiretaps (1) are legal, and, (2) were done under prior administrations.

Today's New York Times has an op-ed by David Rivkin and Lee Casey supporting the legal basis of the wiretap program. Then there is Hugh Hewitt - he interviewed left-leaning Professor Cass Sunnstein from University of Chicago - Sunstein also says the program is on solid legal footing.

So Steve Benen - beyond reading newspaper editorials - exactly how much research did you do????

Wait a minute...so they DID go to the court for warrants? Or they DIDN'T???? Which is it...??? They went and couldn't get their way so decided to just bypass the process? Or they went and got tons of them but decided to stop doing that...or does anybody actually know the truth of this story? Typically since this administration was selected, TRUTH has taken a beating. I was so pleased to hear a guest on WJ today actually again mention the "secret energy meetings" and Bush's closing down of info on Reagan's and his father's administrations papers...this gets nearly NO ATTENTION and yet both demonstrate the slow grabbing of "presidential power"...expect him to soon echo Nixon's "if the president does it it's not illegal"...can "I AM NOT A CROOK!" be far off????

There's also issue about using illegally-obtained information -- the ever-popular "fruit of the poisonous tree" -- in criminal cases against suspected terrorists.

"Cases?" Heh heh heh. That's a good one.

This presumes that the Administration has an interest in the effective prosecution of criminal cases against suspected terrorists in the civilian justice system. If, instead, one presumes that the Administration has an interest in creating political pressure and a compelling security and safety narrative either to push the right-leaning Supreme Court to weaken exclusionary rules like the "fruit of the poisonous tree" doctrine" or to use prosecutions being struck down as a lever to push the right-wing meme about overly powerful judges frustrating the popular will and endangering the country, then this "problem" is no problem at all but a useful tool.

You always come in here and ruin my day like that. Oof.

GOPGregory, how much research did YOU do? I mean, besides reading Powertools.

Not that it matters. I for one look forward to your (and Buttrocket's) impassioned defense of President Hillary Clinton wields these powers.

Sorry 'bout the bad grammar in my last post. I was still channelling Dubya.

GOPGregory--

For starters, there is quite a bit of disagreement about whether or not Bush was within his constitutional rights to do this. Regardless, it is still possible to conclude that what he did was still WRONG, that it was overreaching and uneccesary, that it flies in the face of what our government is supposed to be-- not just the letter of the law but the spirit. Is this really what you want your government to be?

I know it must be hard being a conservative right now-- you're supposed to naturally distrust government, be suspicious of government, want the government smaller. This is a VERY secretive administration that does not like oversight, is offended by the notion of checks and balances, and bristles whenever pressed to explain their behind-closed-doors actions. Yet because Bush is Your Man all of this is okay-- because you trust him over everything else.

Would you be making the same case if it were President Hillary Clinton who did this? or John Kerry? Seriously, think about it for a moment. Are you basing your position on how much you personally trust Bush? What if you didn't? It changes everything, doesn't it?

Only the Hysterical President and his Dumb Fuck Sycophants could mess up prosecutions of suspected national security criminals by illegally obtaining evidence.

Poweline and the National Socialists have many so-called experts who will attest to the legality of any authority the Hysterical President wishes to use, including mass murder. Do not be fooled by Dumb Fuck Sycophants.

AND, given all the secrets and lies from this president why the H--- do you trust him! PLEASE don't tell me because he's a CHRISTIAN...even if he is "killing for Jesus"!

the administration initially sought warrants from the FISA court, but when judges balked at some of the president's more sweeping requests, the administration decided to stop asking.

That's NOT what the evidence shows!

There's no cause and effect between the rejections and Bush's bypass!

Look at the chronology:

Unless Bush can see into the future (and he hasn't shown much foresight in any other regards) you can't say that the Court's 2003/2004 refusals led to Bush's actions in 2001.

So rephrase what you wrote:

The court that had approved practically every request for a warrant for decades found that the Bush administration wanted to go too far. But even before that, the president decided to ignore judicial oversight in some cases.

Also, the (inaccurate) cause-and-effect narrative you describe frames the story more favorably to the president. It makes it look like he's only reacting to activist judges.

I've written more on the subject here.

This is why America should end this failed experiment with using defense lawyers in criminal trials.

What if the large number of failed requests since 2001 were because they were trying to use the poisoned evidence (perhaps thinly disguised) as a basis for a legal wiretap? And said requests didn't provide adequate probable cause?

Bush poisoning evidence against terrorists is incredibly incompetent. There goes Bushie again... doing a heckava job.

While I do understand the legal concept of "fruit from the poisonous tree", I still wonder which poisonous tree produced the existing fruit. Which tree was it:

The Bush
The Walker
The Pierce
or the Robinson

Bush poisoning evidence against terrorists is incredibly incompetent. There goes Bushie again... doing a heckava job. Posted by: turtle

how much research did you do???? Posted by: GOPGregory

will continue to defend the indefensible, credit the incredible, and dispute the indisputable.

Here's are some quick rebuttals to idiot Sunstein's nonsense, and more Sunstein nonsense

Here are a couple of conservatives writing in opposition to Bush:
In an op-ed published by the right-wing Washington Times, conservative constitutional lawyer -- and former Reagan Justice Department official -- Bruce Fein argued forcefully that:
President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms.
Norm Ornstein added in a December 21 column:
The Bush approach to presidential power is simple, straightforward and clear: "L'etat, c'est moi."
As conservative constitutional scholar Bruce Fein puts it, even King George III would blush at asserting this level of bald, unchecked power. But the way in which the president is handling the revelations of secret wiretaps on Americans -- unapologetic, and promising to continue doing it -- makes it clear that this is just what the president believes.
University of Chicago law professor (and former law school dean) Geoffrey Stone wrote in an December 21 Chicago Tribune op-ed:
Bush has the audacity to assert that his authorization of NSA surveillance of American citizens on American soil was "lawful." It was not. It was a blatant and arrogant violation of American law.

It takes very little research to uncover Bush's power grab and his violations of constitutional protections granted to every American. Powerline, and its ilk, have done none.

But if Bush issues a executive order saying defense attorneys can't demand it, then that won't even be a problem. Under article II of the constitution, George W Bush's executive power and role as Commander-in-Chief gives him the power to issue executive orders in order to protect the national security from terrrorists. This includes issuing orders to ban defense attorneys from asking questions which could be harmful to national security.

Actually, Al, I assume that Bush COULD classify the information such that it couldn't be given to defense attorneys.

The rememdy in that case is that the defendants/convicts could be released from jail if there is otherwise insufficient evidence.

Of course, there is nothing in that front page article in the Times that suggests that any evidence used against any of these defendants/convicts actually IS fruit of the poisonous tree. But the New York Times doesn't really care about facts anyway - they've got their jihad against Bush and facts are basically irrelevant.

Your principle problem is spelling.

Mike, I assume you jest when you refer to Cass Sunstein as an idiot.

Indeed, that Sunstein believes that the administration's actions may be legal should be enough to give dogmatic law students (such as cmdicely and armando) pause....indeed, regardless of whether in the final analysis the administration's actions were legal...I can say without reservation that Armando overstates the holding of Youngstown Steel.

I'm not surprised by the "fruit of the poisonous tree" issue...the administration did the right thing after 9/11 (and I believe any other administration would have done the same) and concentrated its antiterrorism efforts on prevention rather than law enforcement.

If locking up terrorists under the judicial system rubric was the key priority, the most efficient thing would be to let terrorist acts be committed and then prosecute them. The paradigm, by necessity, has changed.

The President has the authority to gather intelligence on foreign agents, whether in the country or abroad. When a US person acts as a foreign agent, they no longer have their 4th Ammendment rights as they are now foreign agents. "Fruit of the poisoned tree" is only an issue for criminal prosecutions. "Unlawful combatants", and other foreign agents should not be persued as criminals, but as enemies of the United States. All of this makes sense to me, but then I wonder about the determination of a "foreign agent", like that of "unlawful combatant" is completely arbitrary, therefore a potential abuse. As Kevin pointed out the other day, Madison was most worried about Presidential power in wartime. After all, we are governed by men, not angels.

Mike, I assume you jest when you refer to Cass Sunstein as an idiot.

The arguments from Sunstein I've seen on this have vast gaping holes and failures to address clearly relevant issues. I wouldn't call Sunstein an idiot, I would call his arguments on this issue gravely deficient.

Indeed, that Sunstein believes that the administration's actions may be legal should be enough to give dogmatic law students (such as cmdicely and armando) pause.

I'm pretty sure Armando is a practicing attorney, not a law student, dogmatic or otherwise. But Sunstein isn't a privileged authority; sure, if the tools to evaluate his claim weren't available, and if we couldn't analyze his actual arguments, the fact that a law professor believed it, on its own, would grant the idea slightly more credibility than if some random drunk on the street believed it, but when the time and tools to analyze the argument are available, the argument stands -- or falls -- on its own merits, not its adherents' personal authority.

If locking up terrorists under the judicial system rubric was the key priority, the most efficient thing would be to let terrorist acts be committed and then prosecute them.

And, there, I could have sworn that there were reasons that thinks like attempt, solicitation, and conspiracy were crimes. Oh, yeah, there are -- among others, so that harmful events don't have to be allowed to be completed in order for the intended perpetrators and instigators to be arrest, tried, and convicted in a system adhering to the "judicial system rubric" (or, IOW, the "rule of law").

Your principle problem is spelling.

Occasionally, but not this time.

cmdicely:

Armando is a law student....I know, he acts like he's a practicing attorney.

I can also assure you that a little bit of deference to people as eminent as Sunstein will help you in court. (if you're trying to argue the minority rule on an issue...its a lot easier if Easterbrook wrote the decision or if Sunstein wrote something supporting your argument). and if you think that he's merely "a law professor"...you're not as knowledgeable as I thought.

as for inchoate crimes...they're more difficult to prove and tend to be less penal.

"After all, we are governed by men, not angels."

I thought bush and his loyal syncophants (here and elswhere) had crowned bush king...and as we all know, monarachs are not mere men beholden to man's law, but are the fruit of a higher design.

A small correction for the original piece: the FISC didn't approve 'practically every' request for a warrant before 2002, it approved every single request. A few were apparently initially rejected and then approved when resubmitted with more information, but from Carter to Clinton, and even the first few years of Bush, there wasn't a single warrant request that was actually denied.

The claim made by GOPGregory and others here and elsewhere that Clinton and Carter approved similar searches is a rehashed GOP talking point that is simply false. I showed this at greater length here.

Why is it that the bush defenders never mention the fifty-plus warnings they received from Feb.-Aug. 2001, that they did absolutely nothing about? Why was it that until a whole bunch of people died, they just could not be bothered by warning after warning after warning. The ability to collect information is obviously not the problem here. It is truly amazing, all of the new and exciting possibilities that Bush & Co. must have seen in front of them.( Visions of SugarPlums ) I am certain that at least a few of them started doing the "Happy Dance". But secretly. It would not do to be caught giggling hysterically, when Hell was raining down all around. They are all ambulance chasers. Get a clue, buy one if you have to. Sheesh!

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