Editore"s Note
Tilting at Windmills

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January 31, 2006
By: Kevin Drum

GONZALES AND THE LAW....The Washington Post is reporting, essentially, that Attorney General Alberto Gonzales perjured himself during his confirmation hearings last year. Gonzales said that it was "not the policy or the agenda of this president" to authorize actions that conflict with existing law, but since Gonzales knew perfectly well the White House had repeatedly authorized warrantless wiretaps in violation of the FISA act, he was lying.

But here's the funny thing: I'd take a different lesson from the transcript of that testimony. Think Progress reported on this last December, and here's a fuller extract of Gonzales's testimony:

SEN. FEINGOLD: [Does the president] have the authority to authorize violations of the criminal law under duly enacted statutes simply because hes commander in chief?....

MR. GONZALES: ....There is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes. And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision, and one that I would personally be involved with, I commit to you on that, and one we will take with a great deal of care and seriousness.

SEN. FEINGOLD: Well, that sounds to me like the president still remains above the law.

MR. GONZALES: No, sir.

....If Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by presidents of both parties that he may elect to decide not to enforce that law. Now, I think that that would be

SEN. FEINGOLD: I recognize that, and I tried to make that distinction, Judge, between electing not to enforce as opposed to affirmatively telling people they can do certain things in contravention of the law.

MR. GONZALES: Senator, this president is not I it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.

What's notable is that Gonzales rather plainly didn't promise that the president would never violate the law. What he said is that if he did ignore a statute, he would do it with a "great deal of care and seriousness." And furthermore that it was not the president's "policy or agenda" to violate the law meaning, I suppose, that he would only do it occasionally.

The real lesson here is that everything these guys say has to be deconstructed word by painstaking word to find out what it really means. Gonzales never said flatly that the president wouldn't violate the law, and that's exactly what he meant. Hell, Feingold even recognized that at the time.

Honor and dignity, baby, honor and dignity.

Kevin Drum 12:42 PM Permalink | Trackbacks | Comments (149)

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Comments

I'm so old, I remember when people used to call that kind of caginess as "Clintonian."

Posted by: Quaker in a Basement on January 31, 2006 at 12:50 PM | PERMALINK

>..If Congress passes a law that is >unconstitutional, there is a practice and a >tradition recognized by presidents of both >parties that he may elect to decide not to >enforce that law.

I've really missed something in my US history classes.

When did the above happen? I he talking about the 'Trail of Tears' by Andrew Jackson?

Who decides if the law is 'unconstitutional'? I thought that was the job of the SCOTUS?

Posted by: Buford on January 31, 2006 at 12:57 PM | PERMALINK

And furthermore that it was not the president's "policy or agenda" to violate the law meaning, I suppose, that he would only do it occasionally.

Wrong Kevin. Bush did not violate the law. Bush was given the power under the Authorization for the Use of Miliary Force to do everything possible to stop the terrorists. It is his job to faithfully execute this law. It is his constitutional obligation. Since the wiretappings were used to stop the terrorists before they could strike again, he was following the law and not breaking the law. In fact not authorizing the wiretaps would've been wrong because it would've violated his duty to faithfully execute the law to stop the terrorists.

Posted by: Al on January 31, 2006 at 12:58 PM | PERMALINK

After yesterday, who fucking cares anymore? The Democratic Party is effectively dead, and with a quasi-Fascist majority on the Supreme Court we now have a de facto one party state. There are really no honest Republicans anymore, and probably 75% of the Democrats, Hillary Clinton being the best example, don't give a shit about anything other than getting re-elected. If the really did care, they'd have fought the sons of bitches from day one.

Canada and New Zealand are looking better all the time.

Posted by: Jeff II on January 31, 2006 at 1:00 PM | PERMALINK

But the (apparently) many and varied Clintonian interpretations of "is" doesn't nearly venture into the 'non-denial' denial tightrope Gonzales walks here.

I'll give him some credit. His ability to completely avoid answering that question, with Feingold watching closely, took some serious wordplay. The guy's pretty sharp.

Posted by: wishIwuz2 on January 31, 2006 at 1:01 PM | PERMALINK

And Al, how do we know what the wiretaps were used for? I assume you are correct, in part, that they were used to get the terrorists...but we have no evidence as of yet that it was a limited program

Posted by: jim on January 31, 2006 at 1:02 PM | PERMALINK

Gonzales said that it was "not the policy or the agenda of this president" to authorize actions that conflict with existing law, but since Gonzales knew perfectly well the White House had repeatedly authorized warrantless wiretaps in violation of the FISA act, he was lying.

United States v. Truong, 629 F.2d 908 (4th Cir. 1980),

In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984),
Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
Sealed Case No. 02-001, decided in 2002 by the Foreign Intelligence Surveillance Court of Review
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the Presidents constitutional power.
So tell me, since both pre-FISA and post-FISA the courts have ruled that the President has the inherent authority to conduct warrantless searches to obtain foreign intelligence information, how is Gonzales lying?

Posted by: conspiracy nut on January 31, 2006 at 1:03 PM | PERMALINK

Al, I understand that this is the Republican take, and there is some basis for it.

But if the answer is as plain as you say, why is all the Gonzales double-speak necessary? If the answer is so clear cut, why isn't the Admin's response as clear?

Posted by: wishIwuz2 on January 31, 2006 at 1:04 PM | PERMALINK

Are you at least well-paid, you hapless shill?

Posted by: Poindexter on January 31, 2006 at 1:07 PM | PERMALINK

My previous comment was meant for Al. As if that really neede clarifying...

Posted by: Poindexter on January 31, 2006 at 1:08 PM | PERMALINK

Bush was given the power under the Authorization for the Use of Miliary Force to do everything possible to stop the terrorists.

Let the full body-cavity searches begin!

Posted by: Darryl Pearce on January 31, 2006 at 1:12 PM | PERMALINK

Come on, people--

It's not perjury if you don't know what you're doing!

Posted by: Pale Rider on January 31, 2006 at 1:13 PM | PERMALINK

Welcome to the United Soviet States of America. If these guys' actions did not violate any laws, then we have a legal dictatorship. If they did violate the laws and are going to get away with it, then we have dictatorship.

It's all very simple. Those who identify with the people in power, it's no big deal. Those who don't might as well shut up.

Posted by: lib on January 31, 2006 at 1:19 PM | PERMALINK

conspiracy nut: So tell me, since both pre-FISA and post-FISA the courts have ruled that the President has the inherent authority to conduct warrantless searches to obtain foreign intelligence information, how is Gonzales lying?

FISA is existing law.

Gonzales said Bush wouldn't violate existing law.

Even if the president has inherent authority to violate existing law (that is, the conservative argument and Bush's is that FISA unconstitutionally restricts the president's constitutional powers), he's still violating existing law (which exists until the Supreme Court says otherwise, that is, until the SCt says its unconstitutional).

Neither Gonzales nor Bush get to unilaterally declare FISA restrictions unconstitutional nad therefore determine that it is not "existing law" - only the SCt gets to do that and the law remains existing law until the SCt says otherwise.

Bush's argument (adopted by dishonest conservatives, like you) is not that he didn't comply with FISA, but that he may constitutionally ignore FISA.

That isn't the way it works.

Thus, Gonzales was lying.

Posted by: Advocate for God on January 31, 2006 at 1:19 PM | PERMALINK

United States v. Truong, 629 F.2d 908 (4th Cir. 1980)

The Truong case was made obsolete by the passage of FISA.

Please cite a relevant case.

Posted by: Mnemosyne on January 31, 2006 at 1:20 PM | PERMALINK

"not the policy or the agenda of this president"

Look for a qualified explanation of this statement, something like:

"It's not his personal policy or agenda"

"The program was too secret to talk about"

"Congress was briefed and they still confirmed me"

"The terrorists have won, thanks to you"

Posted by: WDC on January 31, 2006 at 1:22 PM | PERMALINK

Oh, and the Truong case did not involve a United States citizen or national. The government has, and has always had, an unfettered right to spy on non-American citizens.

Why are you so eager to allow the government to spy on U.S. citizens? I shouldn't be so surprised, I guess, even Rush "My medical information is private!" Limbaugh is already pretending that he has nothing to hide.

Posted by: Mnemosyne on January 31, 2006 at 1:22 PM | PERMALINK

Neither Gonzales nor Bush get to unilaterally declare FISA restrictions unconstitutional
They didn't, the FISA court itself said the same thing.

Please cite a relevant case.
I did, the last one. Thanks for paying attention.

Posted by: conspiracy nut on January 31, 2006 at 1:24 PM | PERMALINK

Wrong Kevin. Deconstruction is a waste of time. Better to start with their stated intentions and view of the imperial presidency. For example, some were surprised that Bush agreed to McCain's ban on torture. Of course, as the signing statement bore out, he had no intention of stopping the torture since he thought it his constitutional right.

Posted by: NeilS on January 31, 2006 at 1:25 PM | PERMALINK

Well, actually no. FISA was enacted in 1978 and the 4th Circuit decided Truong two years later.

However, all those decisions involve FOREIGN surveillance. Lies of the Bush administration notwithstanding, the NSA spying scandal involves surveillance of many Americans where there is no foreign component to the communication and damn sure no proof of ties to an enemy.

Posted by: Arminius on January 31, 2006 at 1:25 PM | PERMALINK

the NSA spying scandal involves surveillance of many Americans where there is no foreign component
Now see, if you could prove that, you'd have a scandal. Assuming it is not enough.

Posted by: conspiracy nut on January 31, 2006 at 1:28 PM | PERMALINK

Judicial, Executive, Legislative

School House Rock taught me of the three equal branches of government. Is the fact that the Executive has to get permission from the Judicial to perform Executive powers mean that the Judicial is really in charge of the entire government? Doesnt that defeat the purpose of having 3 equal branches of government?

The founders were pretty smart fellows I think.

Posted by: Orwell on January 31, 2006 at 1:28 PM | PERMALINK

Kevin, you're missing the distinction made by Feingold and acknowledged by Gonzales between actively directing people to violate statutes and deciding not to enforce them. Gonzales tried to focus on the latter and avoid answering about the former.

Posted by: praktike on January 31, 2006 at 1:30 PM | PERMALINK

Huh, We have stopped terrorists,New one on me! Any examples? Al, Tbroz,RSM ,Anyone?

Posted by: pssst on January 31, 2006 at 1:32 PM | PERMALINK

Conspiracy nut, you're missing the key word here: foreign

The Fourth Amendment afford protection to people in the US, not to those living in other countries. It's not listening to Osama's satellite phone that's at issue here, but spying on US citizens and legal residents without a warrant.

Further, despite the shifting story from the administration that tries to insist that they're only listening to communications with "known terrorists," I doubt that there's a court in the land, including FISA, that wouldn't give them a warrant to any known terrorist. They've gotten some 14,000+ FISA warrants since they've been in office -- is it credible that there are "known terrorists" that they've left off the list? If so, why?

And further, the FISA statute empowers them to listen first, and then seek a retroactive warrant if they found anything. So this "need for speed" just doesn't hold water -- they already have the speed, and when there was discussion on 2002 of offering them legislation to give them more power to listen, the administration passed on it, saying that they didn't need it and it would probably be unconstitutional anyway.

So, what are they really doing that they can't take to the FISA court? It's pretty obvious that they are spying domestically, on an ongoing basis, on Americans that FISA would turn down. And since the FISA court has almost never turned them down when they've asked with even a shred of "reasonable suspicion," then it's quite likely that it's people against whom they don't have a suspicion of being involved in terrorism. Like journalists, political enemies, outspoken dissidents...

Posted by: Ducktape on January 31, 2006 at 1:32 PM | PERMALINK

That last line from Gonzales is perjury, plain and simple.

Posted by: HeavyJ on January 31, 2006 at 1:34 PM | PERMALINK

"There are no extra-curricular powers the president may assume at his whim."

1. Legal Standards for the Intelligence Community in Conducting Electronic Surveillance- available on-line
(U) Electronic surveillance is conducted by elements of the Intelligence Community for foreign intelligence and foreign counterintelligence purposes. Because of its potential intrusiveness.
and the implications for the privacy of United States persons,1 such surveillance is subject to strict regulation by statute2 and Executive Order3 and close scrutiny. The applicable legal standards for the collection, retention, or dissemination of information concerning U.S. persons reflect a careful balancing between the needs of the government for such intelligence and the protection of the rights of U.S. persons, consistent with the reasonableness standard of the Fourth Amendment,4 as determined by factual circumstance.
-- For example, in order to conduct electronic surveillance against a U.S. person located within the United States, FISA requires the intelligence agency to obtain a court order from the Foreign Intelligence Surveillance Court.
--As alluded to above, FISA is the statutory regime governing electronic surveillance within the United States for foreign intelligence purposes.

2.In 2002, Justice Department said eavesdropping law working well

A July 2002 Justice Department statement to a Senate committee appears to contradict several key arguments that the Bush administration is making to defend its eavesdropping on U.S. citizens without court warrants.
The Foreign Intelligence Surveillance Act, the law governing such operations, was working well, the department said in 2002. A “significant review” would be needed to determine whether FISA’s legal requirements for obtaining warrants should be loosened because they hampered counterterrorism efforts, the department said then.
President Bush, Attorney General Alberto Gonzales and other top officials now argue that warrantless eavesdropping is necessary in part because complying with the FISA law is too burdensome and impedes the government’s ability to rapidly track communications between suspected terrorists.
3.one can just read Section 1809 of FISA, which expressly provides that “[a] person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute. . . .” And Section 2511(2)(f) provides that FISA “shall be the exclusive means by which electronic surveillance . . . may be conducted.”

Constitution and previous SOYUS rulings: Presidents powers at lowest when Congress acts.

"Can it be true that any president really has such powers under our Constitution? If the answer is “yes” then under the theory by which these acts are committed, are there any acts that can on their face be prohibited? If the President has the inherent authority to eavesdrop, imprison citizens on his own declaration, kidnap and torture, then what can’t he do?" Vive President Al Gore

Posted by: madison on January 31, 2006 at 1:34 PM | PERMALINK

Sealed Case No. 02-001

Not that I don't believe you but could you provide
a URL ?

Posted by: Truth to power on January 31, 2006 at 1:36 PM | PERMALINK

Conspiracy nut, you're missing the key word here: foreign
Ducktape, you're only focusing on one word of a key phrase: "foreign intelligence information". In every war starting with the Civil War we've intercepted communications into and out of the US. It's for the purpose of obtaining "foreign intelligence information".

Posted by: conspiracy nut on January 31, 2006 at 1:36 PM | PERMALINK

Kevin wrote: The real lesson here is that everything these guys say has to be deconstructed word by painstaking word to find out what it really means.

That's absurd, and that's exactly what they want you to waste your time doing. We already know what it "really means". What it "really means" is that the federal government of the United States has been taken over, by means of the blatantly stolen presidential election of 2000, by a criminal gang masquerading as "conservative politicians".

Posted by: SecularAnimist on January 31, 2006 at 1:38 PM | PERMALINK

....If Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by presidents of both parties that he may elect to decide not to enforce that law. Now, I think that that would be

Gee, I thought ist was up to the SCOTUS to determine the constitutionality of the law.

Bush,Inc - reinventing government.

Posted by: Stephen on January 31, 2006 at 1:38 PM | PERMALINK

But did they or did they not conduct surveillance of calls between US citizens inside US territory?

Huh, my head hurts from all the spinning.

Posted by: Brazil Connection on January 31, 2006 at 1:38 PM | PERMALINK

So, what are they really doing that they can't take to the FISA court? It's pretty obvious that they are spying domestically, on an ongoing basis, on Americans that FISA would turn down. And since the FISA court has almost never turned them down when they've asked with even a shred of "reasonable suspicion," then it's quite likely that it's people against whom they don't have a suspicion of being involved in terrorism. Like journalists, political enemies, outspoken dissidents...

The blind faith that so-called conservatives and libertarians have in the government and executive in this situation is really touching.

Always, always remember: IOKIYAR

Posted by: Ringo on January 31, 2006 at 1:38 PM | PERMALINK

You know what would be really cool? If, for one damn thread, otherwise sensible people could avoid the temptation to argue with conspiracy nut, who:

A) is neither a citizen nor a resident of the USA; and
B) has had his argument, along with just about everything he's ever said, neatly debunked over and over. He repeats the same shit because it gets a rise out of people and keeps them from discussing the topic at hand.

Christ a'mighty! Some trolls are worth talking to. This isn't one of them.

Here, it'll save time if I just post his cn's lame response for him: "I work for the DNC! Haw! Haw! (picks booger and scratches crotch) I'm so funny I can't hardly stand myself! Haw!"

Posted by: shortstop on January 31, 2006 at 1:40 PM | PERMALINK
What's notable is that Gonzales rather plainly didn't promise that the president would never violate the law. What he said is that if he did ignore a statute, he would do it with a "great deal of care and seriousness.

No, they didn't, though that's a nice try to spin Gonzalez out of perjury. Gonzales -- and Feingold -- both made a distinction between ignoring the law (or declining to enforce it), on the one hand and authorizing violations of the law (or affirmatively telling people they can do things contrary to the law) on the other.

Gonzales claimed that ignoring the law would be taken seriously -- and when pressed by Feingold elucidated that he was referring to decisions not to enforce, but that it was not the policy of the administration to authorize violations.

Posted by: cmdicely on January 31, 2006 at 1:42 PM | PERMALINK

shortstop: Yes, conspiracy nut is easily amused by his own ignorance and stupidity and dishonesty, which are profound.

Posted by: SecularAnimist on January 31, 2006 at 1:42 PM | PERMALINK

Forgive the foreigner, please: what is IOKIYAR?

Posted by: Brazil Connection on January 31, 2006 at 1:43 PM | PERMALINK

Not that I don't believe you but could you provide a URL ?
linky

Posted by: conspiracy nut on January 31, 2006 at 1:43 PM | PERMALINK

"Canada and New Zealand are looking better all the time.
Posted by: Jeff II"

Amsterdam man, hAmsterdam.

Posted by: Lurker42 on January 31, 2006 at 1:43 PM | PERMALINK

The real lesson here is that everything these guys say has to be deconstructed word by painstaking word to find out what it really means.

That's true of most of adult discourse.

Most presidents have tried to ignore some portions of some laws that they didn't like, and most have attempted to act on authority that followed from some law and wasn't prohibited by another.

George Will made a good case that Bush acted in a way that was counter-productive politically. As far as I can tell, a majority believe that Bush's actions in the NSA case were both legal and good policy. If the Democrats think that a new law is necessary, they should push it, as they pushed the Department of Homeland Security. If the Democrats really believe that the president acted wrongly, they should spell out exactly how his actions exceeded the authority granted him to wage the war on terror.

As far as I can tell, nothing as serious as the FBI wiretapping of Martin Luther King under Bob Kennedy has yet been alledged; or the multiple wiretappings of opposition politicians whose contents were shared with LBJ. The actions under Bush have been more carefully considered to be both in the interests of US security and legal. They might have been illegal, but the case has not been settled.

More worrying was the bureaucratic mess that led to the lack of communication between agencies in the weeks leading up to 911. The Democrats could do better by demanding more improvements than have yet been demonstrated. It appears that the CIA and NSA spend quite a lot of money to acquire information of dubious value.

Posted by: contentious on January 31, 2006 at 1:46 PM | PERMALINK

since Gonzales knew perfectly well the White House had repeatedly authorized warrantless wiretaps in violation of the FISA act, he was lying

Remember this essential point: anybody who claims that the Administration "knew" or "claimed" that the NSA program is "in violation of the FISA act" is a liar and no longer part of the reality based community.

So, Kevin, we'll miss you here in the reality based community. Tell us how it is on the outside, huh?

Posted by: Al on January 31, 2006 at 1:46 PM | PERMALINK

A) is neither a citizen nor a resident of the USA
I see the sophisticated French accent that I type with has you confused.

Not that confusing you takes much effort.

Posted by: conspiracy nut on January 31, 2006 at 1:48 PM | PERMALINK

So tell me, since both pre-FISA and post-FISA the courts have ruled that the President has the inherent authority to conduct warrantless searches to obtain foreign intelligence information, how is Gonzales lying?

Bush is trying to supply his own common definition to the term "foreign intelligence". The federal government does not need a warrant to conduct "foreign intelligence", i.e. spying when they are outside the borders of the US. Domestically, they do. That's why the FBI and CIA are separate, and a big part of why they do not communicate well with one another.

Eavesdropping on phone calls where one party is in the US does require a warrant (they can start the tapping without a warrant but then must obtain one within 72 hours. In other words, they can fish almost all they want and only have to get their 'fishing permit' if they catch something). And yet somehow that's not enough leeway for this administration.

You can bet your bottom dollar that the only reason this administration would not work within FISA limitations (BTW FISA basically rubber stamps 99%+ of all warrant requests) is because they're doing something beyond the scope of FISA, i.e. they are not just tapping people for terrorism/national security threats. Bank on it.

Posted by: Augustus on January 31, 2006 at 1:49 PM | PERMALINK

Brazilian Connection: "It's okay if you're a Republican."

cmdicely: Gonzales claimed that ignoring the law would be taken seriously -- and when pressed by Feingold elucidated that he was referring to decisions not to enforce, but that it was not the policy of the administration to authorize violations.

I'm not following you, Dice. Why is this perjury if he claims this is not the policy? Can it not be argued that events take place that are outside of general policy? He does not seem to promise here that active authoriziation will never happen.

Posted by: shortstop on January 31, 2006 at 1:50 PM | PERMALINK

"A) is neither a citizen nor a resident of the USA;"

That may be true but he's right.

In every war starting with the Civil War we've intercepted communications into and out of the US. It's for the purpose of obtaining "foreign intelligence information".
Posted by: conspiracy nut

I would go so far as to say even before the civil war.

*shrug* Just sayin...

I am NOT however, saying that Bush didn't intercept calls from citizen to citizen because I don't know that. Jury's still out on that one.

Posted by: Lurker42 on January 31, 2006 at 1:52 PM | PERMALINK

A) is neither a citizen nor a resident of the USA

Hey, I resent that.

Posted by: Brazil Connection on January 31, 2006 at 1:52 PM | PERMALINK

Eavesdropping on phone calls where one party is in the US does require a warrant
As I pointed out, we've done it every war starting with the Civil War.

is because they're doing something beyond the scope of FISA, i.e. they are not just tapping people for terrorism/national security threats. Bank on it.
What I'd bank on is that what they are doing falls under terrorism/national security, but that they could meet a standard of proof for a warrant. But if they're data mining, I don't believe they would need a warrant anyway.

Posted by: conspiracy nut on January 31, 2006 at 1:57 PM | PERMALINK

the NSA spying scandal involves surveillance of many Americans where there is no foreign component

C-Nut: Now see, if you could prove that, you'd have a scandal. Assuming it is not enough.

Do we have to go through this again?

The POTUS gave his now-famous Saturday morning radio address by standing in front of the cameras after this information from the NYT broke.

That set off a firestorm. Read the following for some more context:

http://www.defensetech.org/archives/002032.html

Wiretap Mystery: Spooks React

A few current and former signals intelligence guys have been checking in since this NSA domestic spying story broke. Their reactions range between midly creeped out and completely pissed off.

All of the sigint specialists emphasized repeatedly that keeping tabs on Americans is way beyond the bounds of what they ordinarily do -- no matter what the conspiracy crowd may think.

"It's drilled into you from minute one that you should not ever, ever, ever, under any fucking circumstances turn this massive apparatus on an American citizen," one source says. "You do a lot of weird shit. But at least you don't fuck with your own people."

Another, who's generally very pro-Administration, emphasized that the operation at least started with people that had Al-Qaeda connections -- with some mass-spying master list. As the Times, in its original story, noted:

The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said....In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain. While most of the numbers and addresses were overseas, hundreds were in the United States, the officials said....Since 2002, the agency has been conducting some warrantless eavesdropping on people in the United States who are linked, even if indirectly, to suspected terrorists through the chain of phone numbers and e-mail addresses.

But this call chain could very well have grown out of control, the source admits. Suddenly, people ten and twelve degrees of separation away from Osama may have been targeted.

Posted by: Pale Rider on January 31, 2006 at 1:57 PM | PERMALINK

I am NOT however, saying that Bush didn't intercept calls from citizen to citizen because I don't know that. Jury's still out on that one.

That should really be the first question the committee asks Gonzalez, along with demanding all wiretap and eavesdropping records.
Sorry if I don't just take the administration's word for it.

Posted by: Ringo on January 31, 2006 at 1:59 PM | PERMALINK
Why is this perjury if he claims this is not the policy?

If the Administration conducted a program of surveillance in which the President authorized acts criminally prohibited by FISA, then Gonzales clearly falsely characterized the policy of the administration when he flatly denied such authorizations were administration policy.

Can it not be argued that events take place that are outside of general policy?

Well, one could argue even in the abstract, no, any substantive action of the administration is, by definition, "policy". More directly relevant, the long-running surveillance program begun in the immediate aftermath of 9/11 and continuing now is clearly "policy", and clearly does exactly what Gonzales claims is not the policy of the Administration.

He does not seem to promise here that active authoriziation will never happen.

Promising is irrelevant. At the time he made this claim, he was White House Counsel and the Administration was conducting, as a long-running policy, a policy of precisely the kind he denied, under oath, was within the policy of the administration.

Posted by: cmdicely on January 31, 2006 at 2:01 PM | PERMALINK

Brazil Connection: Hey, I resent that.

Don't resent it. We love to hear from non-Americans, some of whom are our best posters. We love your contributions, for example. We just don't appreciate people pretending they're from the US when they're not.

PR: Do we have to go through this again?

Nope. The people who actually care what the answer is have already gotten it.

Posted by: shortstop on January 31, 2006 at 2:01 PM | PERMALINK

But if they're data mining, I don't believe they would need a warrant anyway. Posted by: conspiracy nut on January 31, 2006 at 1:57 PM

That makes as much sense as saying, "Because they're doing house-to-house searches of everyone in the neighborhood, they don't need a warrant."

They do, whether their "data mining" or not, as long as one person in the conversation is an American citizen.

Tell me CN, why did the Administration initially state that they didn't have time to get warrants when these FISA violations came to light?

If they were simply doing "foreign intelligence" and no domestic spying wouldn't they just state that from the get go?

But they didn't, they fielded a number of different excuses which makes it clear to anyone who's raised children that they're lieing.

And I know you recognize it too. But your just hear to stir the pot and cause trouble. You've already admitted that in previous threads.

Posted by: Dr. Morpheus on January 31, 2006 at 2:02 PM | PERMALINK

Thanks for clarifying, cmdicely. I need hardly point out that I'm not endorsing Gonzales' arguments here, just trying to figure out what kind of verbal tightrope he may have thought he was walking.

Posted by: shortstop on January 31, 2006 at 2:03 PM | PERMALINK

Amsterdam man, hAmsterdam. Posted by: Lurker42

A friend who is married to a woman from Ireland, and will be retiring there, and has been all over the world several times, says that Copenhagen would be his ultimate choice.

Posted by: Jeff II on January 31, 2006 at 2:03 PM | PERMALINK

Mr Rider
keeping tabs on Americans is way beyond the bounds of what they ordinarily do
Since we're not normally at war, this contradicts nothing I've said.

Their reactions range between midly creeped out and completely pissed off.
My reaction could be classed as mildly creeped out.

Posted by: conspiracy nut on January 31, 2006 at 2:04 PM | PERMALINK
Eavesdropping on phone calls where one party is in the US does require a warrant

That's not true if the one party that is within the US is in certain categories of "foreign power" and not a "US person", as defined in FISA (but that merely being part of a terrorist group, while a "foreign power" under FISA, is one of the subtypes of "foreign power" excluded from that provision.)

Posted by: cmdicely on January 31, 2006 at 2:05 PM | PERMALINK


aug: Eavesdropping on phone calls where one party is in the US does require a warrant

cn:As I pointed out, we've done it every war starting with the Civil War.

.

until 1978 when FISA was passed and signed into L-A-W....

see the diff.

Posted by: thisspaceavailable on January 31, 2006 at 2:05 PM | PERMALINK

They do, whether their "data mining" or not, as long as one person in the conversation is an American citizen.
Explain Echelon then.

Posted by: conspiracy nut on January 31, 2006 at 2:05 PM | PERMALINK

how did anyone figure out conspiracy nutsack is not a us resident?

Posted by: nuts on January 31, 2006 at 2:07 PM | PERMALINK

That's not true if...
Dang, that had to hurt.

Posted by: conspiracy nut on January 31, 2006 at 2:07 PM | PERMALINK

If any of these characters, from Bush down to cn, had any decency as conservatives, they would be attacking the notion that the CINC can do with the Constitution whatever he pleases, wartime or not. It is not conservative, in America, to grab at power, to overthrow constitutional rights, and to seek the powers of a dictator. In America, we think that the government which governs least is best, and guys like Bush, who proclaim themselves "conservative" should govern by that principle. Instead, it's all about money with you guys, every last one of you.

Posted by: Ace Franze on January 31, 2006 at 2:08 PM | PERMALINK

Explain Echelon then.

Legal data mining.

Warrantless wiretaps of US persons--illegal.
Data mining--legal

Now, I know certain individuals are not comfortable with data mining and I respect that.

Here's the deal (sorry, shortstop) on this whole topic:

Bush is going to be impeached because of it.

Posted by: Pale Rider on January 31, 2006 at 2:09 PM | PERMALINK

how did anyone figure out conspiracy nutsack is not a us resident?
Same way they figured out that Bush was AWOL, and Kerry was going to win in a landslide, and the Plame (non)outing was going to get Rove frogmarched from the WH, and ...

(Now that's how to derail a thread, I should have worked in a Wooden Al slam.)

Posted by: conspiracy nut on January 31, 2006 at 2:10 PM | PERMALINK

Mnemosyne:

um, FISA was passed into law before Truong...therefore, it couldn't have "invalidated" Truong.

Posted by: Nathan on January 31, 2006 at 2:12 PM | PERMALINK

Don't make me snowshoe over there, PR!

Posted by: shortstop on January 31, 2006 at 2:13 PM | PERMALINK

The Gonzales appointment should be a wake up call to traditional democrats. It was a racial gesture.

[you guys remember those, right?]

now confronted with a genuine Mexican Attorney general, Dems are quaking in their boots.

This bastard is a fascist PIG - I dont care if he is black, jewish, mexican - or any of the other 'untouchables'.

But Dems are reaping what they've sown.

Don't you people get it? The racial and ethnic politics advanced by Dems are now derigeuer - and any 'minority' is untouchable. WHO laid the foundation for this travesty?

Bushbots got them a useful mexican fascist, and elevated him to the highest level of any Mexican American in history. And the DEMS can't do a thing about it.

Why doesn't anybody want to talk about racial strategies employed by Bush to stick it to us?

Dems can't be too hard on Gonzales, because the country is in a tizzy trying to woo all those new Latino voters. The republican party is not a natural home for Latinos, but these people are sensitive to 'gesture' politics.

So we got condolice and gonadzales. Bushbots both - AT gonads wouldn't know a constitution if it was wrapped around his beans and rice

and condo - well, I expect bush opens the back of her head and winds her up each morning.

But she got da black face...

Democrats did this to themselves.

Posted by: Tj on January 31, 2006 at 2:14 PM | PERMALINK

Don't make me snowshoe over there, PR!

I think I can outrun you.

But she got da black face...

Tj, was that really necessary? I mean, if you're going to bring some satire into the place, at least bring something funny, okay?

Posted by: Pale Rider on January 31, 2006 at 2:16 PM | PERMALINK
um, FISA was passed into law before Truong...therefore, it couldn't have "invalidated" Truong.

Truong was based on events before FISA was passed and to which FISA was therefore not applicable, since FISA's provisions weren't retroactive.

FISA going in to effect limited the relevance of Truong to future cases, specifically, to cases occurring after FISA went into effect, though of course it remained possible for cases to still arise based on pre-FISA events.

Posted by: cmdicely on January 31, 2006 at 2:17 PM | PERMALINK

conspiracy nut -

Gonzales admitted, in his very first press conference on the issue, that the kind of surveillance they were conducting requires a warrant under FISA, to wit:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday...

He then argued that the AUMF gives them a get out of jail-free card because Congress authorized them to do this (of course then Gonzales, in the same press-conference, said that had they asked Congress Congress would not have authorized it). Finally, they try to rely on this "inherent authority" argument, to which, IIRC, Youngstown Steel is directly contrary.

Posted by: Ugh on January 31, 2006 at 2:20 PM | PERMALINK

More on the Truong case from Doug Hahn:

First of all Truong was NOT a FISA case, and thats exactly the point the judges were making. Here is the complete quote. I have added some asides to make the judges muddy legalese a bit more comprehensible:

We reiterate that Truong dealt with a pre-FISA surveillance based on the Presidents constitutional responsibility to conduct the foreign affairs of the United States. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue(before it), held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.(because the laws pre-FISA were ambiguous) It was incumbent upon the court(in Truong), therefore, to determine the boundaries of that constitutional authority in the case before it. (In the Truong case)We take for granted that the President does have that authority and, assuming that is so, (in the Truong case)FISA could not encroach on the Presidents constitutional power. The question before us (now, in 2002, post FISA, post PATRIOT Act) is the reverse, does FISA amplify the Presidents power by providing a mechanism that at least approaches a classic warrant and which therefore supports the governments contention that FISA searches are constitutionally reasonable.

Posted by: Pale Rider on January 31, 2006 at 2:20 PM | PERMALINK

conspiracy nut: They didn't, the FISA court itself said the same thing.

Then Gonzales lied.

If FISA wasn't invalidated, then the president did not comply with that existing law.

Posted by: Advocate for God on January 31, 2006 at 2:23 PM | PERMALINK

If he PLAINLY didn't promise the president woudl never violate the law. What exactly are you painstakingly deconstructing. He pretty much said,
"Senator, this president is not I it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes.

There is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes. And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision, and one that I would personally be involved with, I commit to you on that, and one we will take with a great deal of care and seriousness."

Nothing to deconstruct in this IMO.

Posted by: Chad on January 31, 2006 at 2:23 PM | PERMALINK
now confronted with a genuine Mexican Attorney general

Gonzales is an American. He is not a Mexican.

He was born in the United States. His parents were born in the United States.

The racial and ethnic politics advanced by Dems are now derigeuer- and any 'minority' is untouchable.

If that was the "racial and ethnic politics advanced by Dems", Jesse Jackson, Al Sharpton, and/or Carol Moseley-Braun would have been nominated for the Presidency by that party, rather than the white men that defeated them. Democrats have never pursued a politics where someone's race makes them beyond question.

Posted by: cmdicely on January 31, 2006 at 2:24 PM | PERMALINK

conspiracy nut: Same way they figured out that Bush was AWOL, and Kerry was going to win in a landslide, and the Plame (non)outing was going to get Rove frogmarched from the WH, and ...

Bush was AWOL.

Nobody predicted Kerry in a landslide.

Whether Rove will be frogmarched from the WH in connection with the Plame outing is yet to be determined.

Plame was outed.

cn: zero for four.

Posted by: Advocate for God on January 31, 2006 at 2:26 PM | PERMALINK

When Abu Gonzalez says "it is not the policy or the agenda of this president to authorize actions that would be in contravention of our criminal statutes" its the same as Alito saying "the president is not above the law". Just as we once had to ponder what the meaning of "is", we now have to ponder the meaning of "law". Alito and Gonzalez will simply say Bush never violated the law (i.e.FISA) because the AUMF amended FISA or the commander-in-chief authority makes FISA unconstitutional. Et voila! lawful behavior.

Posted by: John D on January 31, 2006 at 2:29 PM | PERMALINK

We already know that the program was massive and largely useless given (because of) its scope. Typical Republican public policy: no bang for the buck. If they could have contracted it out to a contributor at three times the price, it would have been a hat trick.

Posted by: SavageView on January 31, 2006 at 2:31 PM | PERMALINK

AfG
Like I said, that's the way to derail a thread. Good man for jumping up and feeding the troll, somebody had to do it.

Ugh
Gonzales admitted, in his very first press conference on the issue, that the kind of surveillance they were conducting requires a warrant under FISA, to wit:
Well that does make it rather problematic. But then, this has always looked pretty gray to me, and I think the interesting thing to watch is going to be what they settle on to justify this. It looks like there are several possible avenues, and none of them are easy.

I've said before that there are 2 things which will keep this from going anywhere:
1) We will never know what happened because that would involve disclosing methods.
2) Neither Bush nor Congress wants to have this fight because neither wants to lose.
But I think its good the objection was raised. I think you're crazy if you expect to get anywhere with this, however. There are the reasons above, and the final reason was confirmed as the new Justice this morning.

Posted by: conspiracy nut on January 31, 2006 at 2:35 PM | PERMALINK

Talk about deliberate obtuseness, Drummy. Is this the new dem tactic? Lalalalalala i'm not hearing you?

Gonzales pretty clearly does not say that he or the admin will violate "the law" - rather, he's making a distinction between statutes passed by Congress and the Constitution of the US. You have to consider both when deciding what "the law" is. And pretty clearly, as you note, Feinstein heard what he said.

And what the hell do you mean "deconstructed" word for word? What is is about this that you don't understand:

"If Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by presidents of both parties that he may elect to decide not to enforce that law." - Gonzales

Where I come from, we call that plain English.

Posted by: peanut on January 31, 2006 at 2:36 PM | PERMALINK

We just don't appreciate people pretending they're from the US when they're not.

Yeah, that's messed up.

Posted by: Brazil Connection on January 31, 2006 at 2:38 PM | PERMALINK

I wonder why the proto-fascists who post here, like cn, never list an email address? Hmmm.

Posted by: SavageView on January 31, 2006 at 2:42 PM | PERMALINK

peanut: "If Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by presidents of both parties that he may elect to decide not to enforce that law." - Gonzales

Where I come from, we call that plain English.

but....it doesnt look like bush wanted the matter decided....

so instead of legally getting a decision...one way or the other

he just ignored it...

kinda makes any law gwb decides is questionable as null and void...

once again gwb's #1 rule: rules are for suckers

Posted by: thisspaceavailable on January 31, 2006 at 2:50 PM | PERMALINK

I wonder why the proto-fascists who post here, like cn, never list an email address?
I get enough abuse right here, you don't need to fill my inbox, too.

Was there something you wanted to say, but didn't have the nerve to say it here where the rest could read it?

Posted by: conspiracy nut on January 31, 2006 at 2:54 PM | PERMALINK

"If Congress passes a law that is unconstitutional, there is a practice and a tradition recognized by presidents of both parties that he may elect to decide not to enforce that law." - Gonzales

Where I come from, we call that plain English.

Ah, but there's the rub, eh, peanut? If Congress passes a law that is "unconstitutional," it's no longer the law. That's because the only body with the authority to declare a law unconstitutional is the court. If a law is unconstitutional, in other words, it is only so because the presiding court has declared it. It is unequivocally not because the president has made that decision himself. From where I sit that would be an egregious violation of the separation of powers.

I'd also be interested in hearing an example of this "practice and tradition" to which Gonzales refers.

Posted by: Alek Hidell on January 31, 2006 at 2:55 PM | PERMALINK

I get enough abuse right here, you don't need to fill my inbox, too.

Set up a dummy account. Believe me, the hate mail is more entertaining than the postings...

Posted by: Pale Rider on January 31, 2006 at 2:56 PM | PERMALINK

Andrew Sullivan reaches the same conclusion here:

(http://time.blogs.com/daily_dish/2006/01/gonzales_perjur.html)

Although he seems to focus specifically on Gonzales's characterization of warrantless wiretapping as "hypothetical".

Posted by: lewp on January 31, 2006 at 2:56 PM | PERMALINK

Believe me, the hate mail is more entertaining than the postings
Heh, if the hate mail is more entertaining than what I get in comments, it would be worth the effort.

What's the URL for yahoo.com?

Posted by: conspiracy nut on January 31, 2006 at 2:58 PM | PERMALINK

Bush approval rating stands at 39%--yeah, they should be real careful about investigating this wildly popular president.

Was there something you wanted to say, but didn't have the nerve to say it here where the rest could read it?

Not me. You're a moronic douchebag. But I think it's great that you're able to fellate yourself, seeing as you haven't found any other takers.

Posted by: haha on January 31, 2006 at 2:58 PM | PERMALINK

I wonder why the proto-fascists who post here, like cn, never list an email address? Hmmm.

I use a fake e-mail address because spammers harvest the real ones from sites like this. Found that out the hard way.

Posted by: tbrosz on January 31, 2006 at 2:59 PM | PERMALINK

What's the URL for yahoo.com?

Yes, I really am that dumb.

Posted by: conspiracy nut on January 31, 2006 at 2:59 PM | PERMALINK

S.V."I wonder why the proto-fascists who post here, like cn, never list an email address?"

That should be proof that we aren't as stupid as you would like to think we are.

Posted by: Lurker42 on January 31, 2006 at 3:00 PM | PERMALINK

I use a fake e-mail address because spammers harvest the real ones
Whoa there, maybe I don't like this idea anymore. All that harvesting makes me shudder thinking about those fields of brocolli being mowed down.

Posted by: conspiracy nut on January 31, 2006 at 3:01 PM | PERMALINK

Oh, I need the URL for buy.com too. Anyone know it?

Posted by: conspiracy nut on January 31, 2006 at 3:02 PM | PERMALINK

I use a fake e-mail address because spammers harvest the real ones from sites like this. Found that out the hard way.

Posted by: tbrosz on January 31, 2006 at 2:59 PM

Dammit! THAT's where all those 'you won a billion dollars in our lottery' e-mails are coming from!

Posted by: Brazil Connection on January 31, 2006 at 3:03 PM | PERMALINK

Wait, does buy.com sell those Swedish penis enlargement kits? I got banned from Wal-Mart just for asking about them.

Posted by: conspiracy nut on January 31, 2006 at 3:04 PM | PERMALINK

Mr Rider
Now see, you think us wingnuts are the problem out here. I insert a joke that is so obvious that it doesn't even qualify as a joke; and some moonbat not only takes it serious and runs with it, but they break out the ultimate moonbat debating technique of using my handle to do it(kudos for takin the time to type in the whole fake email addy, though).

What say you now?

Posted by: conspiracy nut on January 31, 2006 at 3:08 PM | PERMALINK

Hey, question for you all. Forget about the merits of the case or principles for a moment. Don't you guys think it will be very hard for Democrats to frame this NSA matter in a way that makes it good politics? I mean, I hear that the media is already calling the protocol 'terrorist surveillance program'. Is gonna be very, very hard for Dems to fight this. Won't it?

I don't mean by that Dems should drop the matter - quite the contrary; as I said before, my head is hurting from all the spinning that is being done in this issue, but if Bush indeed used the NSA to eavesdrop on US citizens without warrants, that looks like a blatant disregard for your constitution, something that I believe is much, much, much worse than getting a BJ from an intern in the oval office (especially one so, let's say, unappealing). Principles and the right thing are things that should trump politics. But let's not be naive. As one of your founders said, 'In a democracy, first order of business is to get elected', or something like that. How do you think you can fight for these principles without being trounced by Rove? What do you guys think?

Posted by: Brazil Connection on January 31, 2006 at 3:12 PM | PERMALINK

Wait, does buy.com sell those Swedish penis enlargement kits? I got banned from Wal-Mart just for asking about them."
Po"sted by: conspiracy nut

Thanks CN, Best laugh so far today.

Posted by: Lurker42 on January 31, 2006 at 3:19 PM | PERMALINK

I insert a joke that is so obvious that it doesn't even qualify as a joke; and some moonbat not only takes it serious and runs with it, but they break out the ultimate moonbat debating technique of using my handle to do it(kudos for takin the time to type in the whole fake email addy, though).

Sorry, our side has all the creativity. Your side has this freeper named TJ over on our military thread.

Remember that nice discussion we were having? Go see what that freak turned it into.

Posted by: Pale Rider on January 31, 2006 at 3:20 PM | PERMALINK

conspiracy nut: Good man for jumping up and feeding the troll . . .

Hope you are full [of it].

"Mission Accomplished"

Posted by: Advocate for God on January 31, 2006 at 3:21 PM | PERMALINK

Sorry, our side has all the creativity.
Well, if that's true you forgot to spread it around.

Go see what that freak turned it into.
I saw one of them there, looked remarkably like what they did here. But that raises an interesting point, a while back there was some moonbat clown that you thought was a wingnut commenting as a moonbat. I disagreed, and I think I was right. But this Tj critter, I agree this may well be a wingnut having a go.

That shit is too crazy.

Posted by: conspiracy nut on January 31, 2006 at 3:30 PM | PERMALINK

Alex and others:

the problem is that generally speaking, Courts will not grant standing as to whether a law is Constitutional until someone actually violates it (prior restraints on speech being the primary exception)....thus, for a President to challenge FISA he/she would almost certainly have to violate FISA first.

Posted by: Nathan on January 31, 2006 at 3:44 PM | PERMALINK

Nobody is playing with BC.

I would add, Brazil, as a compounding factor, that the Dems are already seen as weak on national defense. Opposing the gathering of potentially useful information is not going to help that. They are working hard to frame this as purely a civil rights question with no impact on national security, but that would require every conservative in the US to take a nap until they're done.

Posted by: conspiracy nut on January 31, 2006 at 3:45 PM | PERMALINK

HOW TO FRAME THE WIRE TAP STORY FOR POLITICAL CONSUMPTION.

Look at poll numbers. People don't trust the government they HAVE. There are 80,000 people with names like Thompson and Moore on the no fly list.

Dems need to outflank the gopers on this.

Who would trust a bureaucracy to enforce any of this? The same people who are feeling up seniors at the airport? How about those empaths at the IRS?

The only way to frame this is to question the ability of ordinary people to police an entire population without prejudice or personal agendas.

And that has never happened. IRS agents snoop on their neighbors and ex wives. City workers enjoy benefits not available to the private sector.

Bush is getting away with this because DEMS have painted themselves into a pro government corner... unable to question the ethics, morality, or sheer intelligence of the public employee unions.

Ordinary government workers are going to be pawing through our records, purchases, and library choices.

Oh yeah. let's hear it for GOVERNMENT WORKERS!!

They can be trusted.... they work for the gubmint!!

stupid stupid stupid.....

The strategy is to question the ability of the government to monitor everybody about everything without the downward spiral toward some Argentine nightmare.... which is where we are headed

Posted by: Tj on January 31, 2006 at 3:45 PM | PERMALINK

Mr Rider
This guy is good. Very good.

It would be a stretch for a wingnut posing as an overcrazed moonbat to pound big government (they should be presenting solutions that Stalin would love), but it's an even bigger stretch for a real overcrazed moonbat to be pounding big government (again, they should be presenting solutions that Stalin would love). And it is at least backwards crazy for a wingnut, it's indefensible for a moonbat. I'm leaning toward wingnut, but this guy is good.

Or I'll forward a third possibility: we are dealing with neither a wingnut or a moonbat here, but a person more aptly described as an "escapee".

Posted by: conspiracy nut on January 31, 2006 at 3:59 PM | PERMALINK
Hey, question for you all. Forget about the merits of the case or principles for a moment. Don't you guys think it will be very hard for Democrats to frame this NSA matter in a way that makes it good politics?

No.

I mean, I hear that the media is already calling the protocol 'terrorist surveillance program'. Is gonna be very, very hard for Dems to fight this. Won't it?

No.

Principles and the right thing are things that should trump politics. But let's not be naive. As one of your founders said, 'In a democracy, first order of business is to get elected', or something like that. How do you think you can fight for these principles without being trounced by Rove?

Not fighting for these principles is the very definition of being trounced by Rove. When one side of a battle is afraid to fight, that's when the other side wins.

Posted by: cmdicely on January 31, 2006 at 4:01 PM | PERMALINK

"Ah, but there's the rub, eh, peanut? If Congress passes a law that is "unconstitutional," it's no longer the law. That's because the only body with the authority to declare a law unconstitutional is the court. If a law is unconstitutional, in other words, it is only so because the presiding court has declared it. It is unequivocally not because the president has made that decision himself. From where I sit that would be an egregious violation of the separation of powers." - Alek whatever.

Oh, "the court" gets to do that, you say? You mean the SCOTUS. And they don't decide every such issue. And if they do it usually takes a while. Any admin that is faced with enforcing or not enforcing a law that it considers to be possibly unconstitutional has to make that judgement itself. They can't wait years for the Supremes to weigh in.

As to "practice and tradition," this is how all administrations, dem or rep, have treated e.g. the War Powers Resolution. Not one president, since '73, not even Clinton, has taken the position that this law is constitutional.

Posted by: peanut on January 31, 2006 at 4:08 PM | PERMALINK

conspiracy nut wrote this: So tell me, since both pre-FISA and post-FISA the courts have ruled that the President has the inherent authority to conduct warrantless searches to obtain foreign intelligence information, how is Gonzales lying?

It's the Democratic sense of "lying" -- writing and saying what they don't like. As they have often written here, even literal truths are lies.

Posted by: contentious on January 31, 2006 at 4:08 PM | PERMALINK

Forgive the foreigner, please: what is IOKIYAR?

It's O.K. if you're a Republican.

Posted by: bitter on January 31, 2006 at 4:12 PM | PERMALINK

The legal encyclopedia American Jurisprudence:

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed .. An unconstitutional law is void. (16 Am. Jur. 2d, Sec. 178)

Posted by: peanut on January 31, 2006 at 4:15 PM | PERMALINK

Not one president, since '73, not even Clinton, has taken the position that this law is constitutional.

Yet most have generally complied with it, largely because no one (in either the executive or legislative branches) really wants to force the issue and have the Supreme Court decide whether the War Powers Act is an unconstitutional encroachment on executive power or an unconstitutional delegation of Congressional authority.

Posted by: cmdicely on January 31, 2006 at 4:16 PM | PERMALINK

True enough, cmdicely, and if I would guess, regardless of the feverish impeachment-nonsense you read here, that will be exactly what will happen with the "FISA" statute: in the end, noone will challenge its constitutionality because it serves no good purpose and almost all responsible parties agree the NSA program is probably a good idea anyway. So everyone will just agree that this is a grey area and move on.

Hmmm, move on, that has a nice ring to it, doesn't it?

Posted by: peanut on January 31, 2006 at 4:22 PM | PERMALINK

Hey, question for you all. Forget about the merits of the case or principles for a moment. Don't you guys think it will be very hard for Democrats to frame this NSA matter in a way that makes it good politics?

No.

Yes. The Democratic "leadership" has been over in the corner curled up in the fetal position since 9/11. No matter how unsuited to the job a nominee or reprehensible the behavior of the Republicans, they have failed to block a single person or counter a single issue.


I mean, I hear that the media is already calling the protocol 'terrorist surveillance program'. Is gonna be very, very hard for Dems to fight this. Won't it?

No.

Yes. The MSM is so far in the bag that they may never see the light of day again.

Principles and the right thing are things that should trump politics. But let's not be naive. As one of your founders said, 'In a democracy, first order of business is to get elected', or something like that. How do you think you can fight for these principles without being trounced by Rove?

Not fighting for these principles is the very definition of being trounced by Rove. When one side of a battle is afraid to fight, that's when the other side wins. Posted by: cmdicely

To the Republicans, game, set and match. As the saying goes, short of Bush, Cheney and Rove getting caught on tape with a pile of coke and a bunch of underage girls and boys, I doubt anything at this point will halt or even deflect the conservative juggernaut now ruling America. Even then, given how craven MSM has become and how stupid the American public is, something like that might not matter. Hell, maybe they should throw in some blood sacrifice just because they can.

Posted by: Jeff II on January 31, 2006 at 4:23 PM | PERMALINK

Silly Liberal, laws are for Democrats!

L'etat, C'est moi!

Posted by: Darth Dubya on January 31, 2006 at 4:25 PM | PERMALINK

Btw, don't confuse the War Powers Resolution with the War Powers Act (much older law dealing with trading with the enemy etc).

And you're right that administrations have "generally" complied with it, while holding that they most defintely don't have to.

Posted by: peanut on January 31, 2006 at 4:25 PM | PERMALINK
There is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes. And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision, and one that I would personally be involved with, I commit to you on that, and one we will take with a great deal of care and seriousness.

To my knowledge, the Bush Administration has never made the argument that FISA is unconstitutional, or that they "ignored" it. Instead, they've explained that it was not binding for this or that reason. That is the crux of this issue.

Don't get distracted.

Posted by: Jimm on January 31, 2006 at 4:45 PM | PERMALINK
True enough, cmdicely, and if I would guess, regardless of the feverish impeachment-nonsense you read here, that will be exactly what will happen with the "FISA" statute:

Unlikely; if nothing comes of it, it will be for completely different reasons than the two-sided Constitutional problems of the War Powers Resolution.

Posted by: cmdicely on January 31, 2006 at 4:46 PM | PERMALINK
As the saying goes, short of Bush, Cheney and Rove getting caught on tape with a pile of coke and a bunch of underage girls and boys, I doubt anything at this point will halt or even deflect the conservative juggernaut now ruling America.

Well, in the short-term, we'll see in November, but the short-term isn't the only term. If you want to matter politically, you've got to learn to look beyond the next election, and even beyond the next decade, and work to build your own juggernaut. And a big part of that is signalling, loudly and publicly, that you are serious about doing that, so that people that are inclined to agree with you get motivated.

That's what standing up is often about, even if there is little or no short-term prospect to get the result you want on the policy at issue.

Posted by: cmdicely on January 31, 2006 at 4:50 PM | PERMALINK

"two-sided constitutional problems" - is that a legal term, cmdicely?

(giggles)

Posted by: GBH on January 31, 2006 at 4:50 PM | PERMALINK

Also, since no presidential administration for over 30 years has challenged the War Powers Act as unconstitutional, it may as well be considered to be so, until its constitutionality is challenged, and this may not be used as an excuse for flouting the law or ignoring it unless simultaneously a legal claim is made that this behavior is not criminal since the statute is unconstitutional.

Same goes for FISA. The Bush Administration has not made that argument, and will not. If they do, they will be shown to be the unethical manipulators they are, since all the reasons will be obviously be seen as smokescreens and bullshit.

Posted by: Jimm on January 31, 2006 at 4:51 PM | PERMALINK

peanut: And you're right that administrations have "generally" complied with it, while holding that they most defintely don't have to.


but only one administration has actually done that...

if not for the nyt....congress might not still know enough to be able to decide

if its a grey area they dont want to touch..

how american of the president to decide for them...

Posted by: thisspaceavailable on January 31, 2006 at 4:53 PM | PERMALINK

The Bush Administration has not made that argument, and will not. If they do, they will be shown to be the unethical manipulators they are, since all the reasons will be obviously be seen as smokescreens and bullshit.

Of course I mean "all the other reasons" the Bush Administration has given for justifying their actions based upon the legal understanding that FISA did not apply to their actions for this or that reason (implied in this argument is the FISA does apply to some of their behaviors, and combined with not making a claim that FISA is unconsitutional, and that it is consitutional).

Posted by: Jimm on January 31, 2006 at 4:53 PM | PERMALINK

oops...implied in this argument is that FISA does apply to some of their behaviors, and, combined with not making the claim at this time that FISA is unconstitutional, that it is constitutional.

Posted by: Jimm on January 31, 2006 at 4:55 PM | PERMALINK

Oops again.

There is a presumption of constitutionality with respect to any statute passed by Congress. I will take an oath to defend the statutes. And to the extent that there is a decision made to ignore a statute, I consider that a very significant decision, and one that I would personally be involved with, I commit to you on that, and one we will take with a great deal of care and seriousness.

To my knowledge, the Bush Administration has never made the argument that FISA is unconstitutional, or that they "ignored" it. Instead, they've explained that it was not binding for this or that reason (thus seemingly to imply they do not consider FISA unconstitutional, since admitting they have considered it binding to some of their actions). That is the crux of this issue.

I doubt this kind of cherrypicking is going to go well when it comes actually challenging the constitutionality of a statute in force for some time - a very serious legal claim.

Don't get distracted.

Posted by: Jimm on January 31, 2006 at 5:00 PM | PERMALINK

As Kevin points out, the oddest thing about this testimony is that noone seemed to call Gonzalez on his notion that the administration could "ignore" a criminal statute, and, in such a case, that they should be reassured about this because he would personally look in on the matter and make sure that the criminal statute was "ignored" with careful thought and consideration.

Frankly, that really doesn't make any sense, unless it's supposed to be tied to his prior statement about unconstitutionality. As such, this part of his statement has nothing to do with "ignoring" FISA, which the administration did not do, or the unconstitutionality of FISA, which the administration did not claim (as the basis of their actions).

Instead, they claim that the statute does not apply to them because of either the AUMF or inherent presidential war power, not that the statute is unconstitutional (in the process implying that the statute is considered constitutional since they defend their abiding by it in those areas where they claim it does apply).

Posted by: Jimm on January 31, 2006 at 5:04 PM | PERMALINK

To conclude, the administration did not "ignore" FISA, but supposedly "sidestepped" it (i.e. its jurisdiction), and Gonzalez has not technically been caught in a lie, since the administration is arguing, perhaps absurdly, yet arguing nevertheless, that their actions were not in defiance of the FISA statute.

They neither "ignored" the statute, nor claimed it to be unconstitutional, nor lied about saying they do not violate criminal statutes as a "policy or agenda". Instead, Gonzalez and the administration just seem to be clearly wrong about this legal evaluation (unless other information comes to light). If so, this is still a scandal, because how stupid can they be, and how wrong, so many times, over and over, without questioning their standard operating procedure (wrong about Iraq resistance, wrong about Katrina, wrong about Palestinian election, wrong about not imagining 9-11, etc.)?

Posted by: Jimm on January 31, 2006 at 5:12 PM | PERMALINK
As Kevin points out, the oddest thing about this testimony is that noone seemed to call Gonzalez on his notion that the administration could "ignore" a criminal statute

Since, when pressed, he clarified that this referred to non-enforcement, and since this is pretty clearly an executive prerogative, why would he be "called" on it?

Posted by: cmdicely on January 31, 2006 at 5:14 PM | PERMALINK

"To my knowledge, the Bush Administration has never made the argument that FISA is unconstitutional, or that they "ignored" it. Instead, they've explained that it was not binding for this or that reason"

Don't be silly, Jimm.

The government argues that FISA, because amended in effect by the 2001 Authorization for Use of Military Force, does not prohibit the NSA program and that if it does it trenches on the President's Article II powers and is, thus, at least partly unconstitutional. The argument may be right or wrong, but if is right there is no issue of "ignoring" the law.

Posted by: GBH on January 31, 2006 at 5:15 PM | PERMALINK
Also, since no presidential administration for over 30 years has challenged the War Powers Act as unconstitutional

It is not the case that no administration has challenged it as unconstitutional; indeed, several have claimed that it is. OTOH, its provisions mandate largely what most people agree is minimally good policy whether or not it is either Constitutional for Congress to be so lax with war, or Constitutional for Congress to constrain the President as it does in that enactment. So most administrations mostly follow along, while protesting that Congress lacks the authority to compel them to.

Now, it hasn't been challenged in courts (or, rather, no such challenge has been resolved on the merits, all have been dismissed on standing or other grounds), that's true, but that's different than suggesting that Administrations have generally not questioned its Constitutionality.

Posted by: cmdicely on January 31, 2006 at 5:18 PM | PERMALINK

Well, in the short-term, we'll see in November, but the short-term isn't the only term. If you want to matter politically, you've got to learn to look beyond the next election, and even beyond the next decade, the result you want on the policy at issue. Posted by: cmdicely

It's not just a matter of the next election, and the next decade! Jesus. With the current people in charge (and that's on both sides of the aisle) we'll not only still be in Iraq in the next decade, we may still be in Iran and/or N. Korea, the Chinese will literally own us (not just a measely 7%), global warming will have progressed to the point where the entire Gulf Coast and parts of the Eastern seaboard look like NO after Katrina, and the national debt will be so great that moving to Argentina circa 1987 wouldn't sound so bad.

What's so hard about understanding that the Alito nomination was the last significant opportunity to challenge the Bush administration? Over the last five year the Dems blew every single chance to block the Bush administration on the important (and no so important) nominations and legislation. On top of that, even when caught in a lie (cough, Iraq, cough), Shrub and company have paid no price. So, unless it all comes tumbling down for them in the next six months and the Dems miraculously become sentinent beings, the hole is just going to get deeper and deeper.

Posted by: Jeff II on January 31, 2006 at 5:20 PM | PERMALINK

Jimm - I never argued that the admin "ignored" the law. Where do you get this from?

The issue is that the law cannot overrule the president's war powers.

Posted by: peanut on January 31, 2006 at 5:22 PM | PERMALINK

The issue is that the law cannot overrule the president's war powers. Posted by: peanut

Well, there's your problem right there. Constitutionally, the president has no "war powers."

Posted by: Jeff II on January 31, 2006 at 5:27 PM | PERMALINK

There is no need to ignore a law which is, in part, (or even wholly) unconstitutional. Just as with the WPR, an administration may decide to obey it for a while, or in most cases, while still claiming that the law doesn't really bind the president, or doesn't bind his administration in certain matters. But the law is not being "ignored" it just does not apply.

In the case of FISA, it might apply to all kinds of "foreign intelligence" which is unrelated to waging war. But if a program is necessary for the president (or his administration thinks it is necessary) to wage war, then the admin might change its mind on applying it. This is in no way inconsistent.

Posted by: peanut on January 31, 2006 at 5:36 PM | PERMALINK

I agree with Tj. The way to fight this is with the competency argument.

Yes, we think the government should use extraordinary means in extraordinary times, but can government be trusted to use police state tools?

Just exactly WHO is the government. It is the rejects of the private sector. The people who will be deciding whether to tap your phone are no different than the people who screwed up your property tax bill.

Certain people will be hassled. And other, well connected people will be free to pass secrets to the Israelis.

Posted by: Ashley on January 31, 2006 at 5:55 PM | PERMALINK

I agree with Tj.
Oh Pale, where are ya?

Posted by: conspiracy nut on January 31, 2006 at 6:03 PM | PERMALINK

Jimm - I never argued that the admin "ignored" the law. Where do you get this from?

I don't recall referring to you peanut. I was just responding to Kevin's post while also on a little bit of the flavor of what I briefly read in the comments. I haven't read them all.

Posted by: Jimm on January 31, 2006 at 7:05 PM | PERMALINK

Now, it hasn't been challenged in courts (or, rather, no such challenge has been resolved on the merits, all have been dismissed on standing or other grounds), that's true, but that's different than suggesting that Administrations have generally not questioned its Constitutionality.

I agree, but I was referring to legal challenges. Complaints outside of court are just that, and have no legal bearing. If you comply with something for 30 years, and never once challenge it in court, in my mind that is implying you sense you will not win your challenge, and are therefore conceding.

Plus, I'm just talking about any one administration. If an administration wants to do something illegal by claiming that the War Powers Act is unconstitutional, that's all well and good as long as they file a legal claim challenging the Act simultaneously (I'm not suggesting that past administrations not doing this would prevent the current administration from doing so, though the more decades go by, the shakier the case will get).

Posted by: Jimm on January 31, 2006 at 7:08 PM | PERMALINK

I'm not suggesting that past administrations not doing this would prevent the current administration from doing so, though the more decades go by, the shakier the case will get

Actually, I should say the more difficult it will be to make the case, though certainly not impossible. The actual "shakiness" of the legal claim really isn't impacted by previous compliance.

The same goes for FISA. If the administration wanted to use it as an excuse, which it hasn't, and I don't think it will (it's the wingnuts who love to trumpet this item), it would have had to make that case in court simultaneously or near-simultaneously in order to have any credibility in my book.

I just don't see a serious court, especially on very important constitutional matters, allowing constitutionality to become a cop out only when an administration gets caught breaking the law.

Posted by: Jimm on January 31, 2006 at 7:12 PM | PERMALINK

Since, when pressed, he clarified that this referred to non-enforcement, and since this is pretty clearly an executive prerogative, why would he be "called" on it?

Oh, I didn't read that far.

Forgive my ignorance, but wouldn't it be unconstitutional in its own right for the administration to choose to enforce some laws and not others, effectively stating that these laws need not be followed?

I know lawyers love parsing, but I see no practical difference.

If the administration decides to "ignore" prosecuting public corruption, for instance, and not for lack of resources but just willfully (in defiance), this would seem to be a violation of citizens' equal protection under the law, since public corruption laws are in place to protect citizens, just as laws are in place to protect against unlawful search and seizure.

Posted by: Jimm on January 31, 2006 at 7:17 PM | PERMALINK

The government argues that FISA, because amended in effect by the 2001 Authorization for Use of Military Force, does not prohibit the NSA program and that if it does it trenches on the President's Article II powers and is, thus, at least partly unconstitutional. The argument may be right or wrong, but if is right there is no issue of "ignoring" the law.

GBH, thanks for repeating my point. Next time, please don't mistake repeating my point for rebutting it.

Posted by: Jimm on January 31, 2006 at 7:19 PM | PERMALINK

Jimm - "To my knowledge, the Bush Administration has never made the argument that FISA is unconstitutional"

GBH - "The government argues that FISA [...] trenches on the President's Article II powers and is, thus, at least partly unconstitutional."

Jimm - "Thanks for repeating my point."

This thread just officially made it to sub-zero IQ territory. Giving up.

Posted by: peanut on January 31, 2006 at 8:08 PM | PERMALINK

Heh. Yet another "oops" Jimm? With the myriad of posts above, you're about 0 for 1000 today.

Posted by: GBH on January 31, 2006 at 8:10 PM | PERMALINK

"If the administration decides to "ignore" prosecuting public corruption, for instance, and not for lack of resources but just willfully (in defiance), this would seem to be a violation of citizens' equal protection under the law, since public corruption laws are in place to protect citizens, just as laws are in place to protect against unlawful search and seizure."

This is really getting excessively dumb, but for the record, your analogy there does not make any sense. For it to make sense you would have to choose an example where a statute passed by congress might (or might now) be in conflict with other, subsequent statutes or with constitutional prerogatives given to the executive branch. Just sayin'

Anyway, it's too late for this shit.

Posted by: GBH on January 31, 2006 at 8:17 PM | PERMALINK

I agree with Tj.
Oh Pale, where are ya?

I dunno--try getting a life.

When did I become the ombudsman for this thread? You wanna roll in the gutter with the likes of TJ, roll yourself a nice blunt and have a pity party with him.

Posted by: Pale Rider on January 31, 2006 at 10:26 PM | PERMALINK

GBH - "The government argues that FISA [...] trenches on the President's Article II powers and is, thus, at least partly unconstitutional."

That's not all you said, but on this particular matter, as far as I'm concerned we're saying the same thing...I say that Bush is saying that FISA doesn't apply to this activity (not "jurisdictional") due to presidential powers, and you are saying that this means it's "partly unconstitutional". I'm not sure that's really the case, or that the Bush Administration is implying it's unconstitutional. That's the wingnuts job right now.

Posted by: Jimm on January 31, 2006 at 11:25 PM | PERMALINK

This is really getting excessively dumb, but for the record, your analogy there does not make any sense. For it to make sense you would have to choose an example where a statute passed by congress might (or might now) be in conflict with other, subsequent statutes or with constitutional prerogatives given to the executive branch. Just sayin'

GBH, you just need to stop combining the various arguments into arguments I'm making that are meant to address "ignoring" laws, considered in its own right, and not as a direct analogy to the so-called FISA conflict. At the end of that argument, I threw FISA back in, as a way to redirect back to the larger point, but in any case the Bush Administration is not "ignoring" FISA, even if they are saying it's partly unconstitutional (they're not) or doesn't apply.

If it doesn't apply, since the presidential war powers take precedent, as they are arguing, they are not "ignoring" FISA, but considering it and dismissing it as relevant. And they are wrong about that too.

Posted by: Jimm on January 31, 2006 at 11:29 PM | PERMALINK

I dunno--try getting a life.
Naw, I tried it, wasn't worth the effort. But the reason for saying that was just to make sure you were reading that stuff. Man, jokes about the gene pool are getting funnier by the minute.

Posted by: conspiracy nut on February 1, 2006 at 9:19 AM | PERMALINK

Man, jokes about the gene pool are getting funnier by the minute.

That puddle on the floor? That's the gene pool.

Posted by: Pale Rider on February 1, 2006 at 11:04 AM | PERMALINK

One example of when we'll know Congress is irrelevant is when Bush appoints someone and they simply take their post without going to Congress for the 'advice and consent'.

What's up with Feingold conceding that Presidents have in the past decided to not uphold a statute they considered unconstitutional? Isn't that pretty much conceding the whole Union to King Bush?

Posted by: MarkH on February 1, 2006 at 1:01 PM | PERMALINK

It has occurred to me that domestic spying=international surveillance. This semantic switch gave me the clue that the only people on the planet not being spied upon are those that have no postal, phone, or internet service. The genie is out of the bottle, how do we stop this invasion? Face it NSA knows everything it knows and can use or manipulate this to whatever advantage the user desires.

Posted by: fingerkish on February 1, 2006 at 9:52 PM | PERMALINK




 

 

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