Editore"s Note
Tilting at Windmills

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February 7, 2006
By: Kevin Drum

FISA AND THE COURTS....Matt Yglesias asks a question about the Bush administration and the FISA act, which sets the rules for domestic wiretapping:

Beneath all the smokescreens what they're really trying to say is that they think FISA is unconstitutional, so they ought to be allowed to violate it. What I can't understand is why they won't just say so and see if they can get a court to agree. Are the legal arguments here so terrible that there's no chance even the new, Alito-ified court won't agree?

Yesterday at The Corner, Andy McCarthy offered up his explanation for why Bush hasn't and shouldn't invite a court test:

It is the President, not the Judiciary, which is supreme in matters of foreign intelligence collection and national security. It is, moreover, wartime. It is the President in our system who makes the ultimate judgment about what must be done to protect the public from foreign threats even in peacetime. It would not be proper constitutionally for the President to delegate that prerogative to another branch. Thus, if the FISA Court reviews the NSA program and opine against it, what is the President supposed to do? Discontinue a program that provides an early warning system against what could be a devastating attack? That is a call we elected him to make the FISA court has no place making such judgments.

Got that? Even in peacetime, the president is absolutely sovereign when he decides that his actions are required to protect the public from foreign threats. Once he's made that decision, whether secretly or not, Congress and the courts have no say in the matter. None.

It's breathtaking, isn't it? And yet, this is the kind of argument the president's supporters are increasingly driven to make. It's a pretty good indication that they don't have anything serious left in their bag.

Kevin Drum 12:50 PM Permalink | Trackbacks | Comments (111)

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In Hackerian/Piersonian terms, these neo-monarchists are really dragging the "center" about as far off center as possible...

Posted by: The Fool on February 7, 2006 at 12:54 PM | PERMALINK

Yglesias is such a tool.

Beneath all the smokescreens what they're really trying to say is that they think FISA is unconstitutional, so they ought to be allowed to violate it. What I can't understand is why they won't just say so and see if they can get a court to agree. Are the legal arguments here so terrible that there's no chance even the new, Alito-ified court won't agree?

Because they probably feel that their arguments don't hold water. If FISA was unconstitutional and the neo-Nazis reaaly want to get rid of it, it would have been challenged sometime in the last twenty years or so. Look how quickly they got the court to hear arguments against the line item veto.

It's time for a new constitutional congress anyway. The one we've got is so out of date.

Posted by: Jeff II on February 7, 2006 at 12:57 PM | PERMALINK

One problem with McCarthy's line of reasoning:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

No exceptions...not even if there's a monster under the bed.

Posted by: Chesire11 on February 7, 2006 at 1:00 PM | PERMALINK


It's worth remembering that this is a war on an abstract noun, "terrorism," rather than a country, so it's actually more like the war on crime than WWII. I wonder how much latitude the conservatives would have given LBJ to fight the war on poverty?

Posted by: john sherman on February 7, 2006 at 1:00 PM | PERMALINK

That's worse reasoning than the leaps of logic that convinced him that Weekend at Bernie's II was a good career move.

Posted by: norbizness on February 7, 2006 at 1:01 PM | PERMALINK

Does the "War on Christmas" allow the police to strip search Santa without a warrant?

Just wondering...

Posted by: Chesire11 on February 7, 2006 at 1:03 PM | PERMALINK

It's a pretty good indication that they don't have anything serious left in their bag.

Mo, it's a pretty good indication of exactly how much they respect and/or value democracy - i.e., they don't. They're fascists, pure and simple.

Posted by: tam1MI on February 7, 2006 at 1:03 PM | PERMALINK

The answer to Matt's question is simple: the President would lose.

FISA artfully incorporates a mechanism for the President to listen in and get approval afterwards. That 72 hour provision means that the President retains the emergency powers required to defend the country.

Second, FISA artfully uses the probable cause langauge which matches wording in similar parts of the Constitution itself.

That's why the President isn't going to ask the question: he doesn't have an argument. Sorta like Gitmo and a few other details.

Because remember that the founding fathers almost all fought in the Revolutionary War. They, knew that the Constitution had to be written with war time situations in mind.

Posted by: Samuel Knight on February 7, 2006 at 1:04 PM | PERMALINK

I have no doubt that, when their backs are against the wall, they will find a court that agrees that the Constitution was written to give us a strong executive and that the people have no rights to assert against that executive as long as he claims the figleaf of national security.

Posted by: brewmn on February 7, 2006 at 1:07 PM | PERMALINK

I'm sure they would be saying exactly the same things if Hillary were President...

Posted by: Gore/Obama '08 on February 7, 2006 at 1:11 PM | PERMALINK

There's a fairly easy way to beat back these claims that FISA is somehow unconstitutional. It's in the Constitution itself. Let's look at Article One, Section Eight, Paragraph Eleven, "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." Now let's look at Article One, Section Eight, Paragraph Fourteen, "To make Rules for the Government and Regulation of the land and naval Forces." Let's look at Article One, Section Eight, Paragraph Nineeteen, "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States." And finally, let's look at Section One, Article Eight, Paragraph Twenty-One, "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Now, from the above it should be clear that the Constitution does provide Congress a role in how the President as Commander-in-Chief performs his duties. "To make Rules" for how the armed forces operate gives Congress the duty and the power to enact legislation concerning how the President may act as Commander-in-Chief. That is, Congress controls not only the purse strings, but also the policy of the armed forces. Yes, the Constitution says the President is Commander-in-Chief, but it also clearly places limits on his power as such. It is Congress that decides the organization, rules, how they shall be discipled, etc. The Commander-in-Chief title is not a blank check. The framers understood the danger of a unitary executive. They understood the danger of a President claiming broad powers as Commander-in-Chief, which is why they reserved the discipling, rule making, organizing, and other powers with regard to the military to the Congress.

So I say, go ahead, try to argue that FISA is unconstitutional, just be ready to run into the buzz saw of the Article One. Go ahead and try to argue that as Commander-in-Chief the President has unlimited powers, just be ready to run into the buzz saw of Article One.

Posted by: idlecrank on February 7, 2006 at 1:14 PM | PERMALINK

I wonder if Mr. McCarty would make the same argument about President Gore or Kerry.

Posted by: eponymous coward on February 7, 2006 at 1:14 PM | PERMALINK

You know, I always wondered what that second part of Bush's signing statement meant. Most people focused on the first clause, that he would construe the law in a manner "consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief". Little mention was made of the second clause of that statement, "and consistent with the constitutional limitations on the judicial power".

Now we have an inkling of what he meant.

Posted by: KarenJG on February 7, 2006 at 1:16 PM | PERMALINK

This whole argument isn't really about executive power anyway. It's about power for Bush the man, not some abstract officeholder wielding executive power.
This is all about him personally and will continue to be until he leaves office. He's surrounded by fluffers and toadies who are loyal to him alone, and feel no reposibility for the future.

Posted by: jimbo on February 7, 2006 at 1:18 PM | PERMALINK

"...the president is absolutely sovereign when he decides that his actions are required to protect the public from foreign threats.."

Kevin I think you misinterpret.

McCarthy opinion is that the president should take reasonable (or even unreasonable) steps of dubious constitution authority; and then let others take him to court. It is not the president's job to file suit against himself or invite a suit against himself to make sure he is doing his job constitutionally.

I dunno what constitutional authority FISA has, but McCarthy implies that FISA was not set up to judge constitutionality in this case.

The way it normally works is some aggrieved citizen, of which there are a thousands?, should now file suit, not the president.

The reason we have the Supreme Court is because we expect the president and Congress to violate the constitution occasionally, it is their job in a way.

Posted by: Matt on February 7, 2006 at 1:20 PM | PERMALINK

in actuality, no court will opine on the issue. they'll avoid it under the political question doctrine.

which is why the program will simply remain in legal limbo. technically, if Congress believed that the executive has overstepped its bounds or misconstrued the AUMF, it could cut off funding for the NSA. of course, it won't do so.

just an observation from the legal realist perspective. (oh, and those individual suits? they'll be dismissed for lack of standing.)

Posted by: Nathan on February 7, 2006 at 1:22 PM | PERMALINK

More and more we edge toward a technocratic state where the technologies we have developed determines our survival more than the rights and laws that our founders established in the constitution. We have passed the line where we can no longer guarantee our basic human rights. We are "free" to maintain the technologies that sustain us but not free to maintain the freedoms that brought us here. The survival of the techno/capitalist/globalist state is of the utmost importance with or without freedom. Democracy is becoming an inherent impediment to the powers that run the world.

Posted by: lou on February 7, 2006 at 1:24 PM | PERMALINK

I wonder if Mr. McCarty would make the same argument about President Gore or Kerry.

Well, the snarky answer is that President Gore or Kerry wouldn't be spying on the American people and Mr. McCarthy would be opining that because there is a GOP majority in the Senate, the President has to do everything that they say because otherwise he's be going against the obvious will of the people.

Posted by: ChrisS on February 7, 2006 at 1:24 PM | PERMALINK

RE: the Alito-fied Court, and the FISA arguement.

Over and over again yesterday, Gonzales brought up Hamdi. Well, probably the main points in Hamdi is that the actions of the Executive must be subject to judicial review. So what is the method of judicial review for wiretaps? Warrant hearings, of course.

And if you want some hint about how the Alito-fied court would rule, go read what Scalia had to say about Hamdi. You can probably quit when you get to the first Magna Carta reference, and "our Anglo-Saxon system of separated powers".

They haven't gone to the courts with NSA wiretaps because they know they'd get their asses handed to them, and by everybody except Thomas.

Posted by: Robert Earle on February 7, 2006 at 1:31 PM | PERMALINK

Matt Yglesias is projecting a rational face on a nakedly post-modern government policy. This is the fault of too many on the left. Why project a line of defense you personally find more aceptable to an opponent who uses words as shielding without any reguard for logical consistency or meaning?

What does Matt hope to accomplish? Help wake up a "confused" administration, who will then say in their defense, yeah what Matt said why didn't we think of that?

As demonstrated many many times by THIS administration, this type of projected fantasy is nothing but the intellectual masterbation of pundits. The administration had every opprotunity to reconcile to the law, among them the DeWine bill of 2002, and even yesterday's hearing. It's not that they are not aware of this, or that they are too stubborn to do this, it's that they are knowingly covering up blatant criminal activity, and feigning mock horror when anyone dares address this central truth.

There are many many many ways to assure Congressional oversight that a program is doing what it should be doing in the ways it should be doing it without revealing technical detail. Intelligence agencies in America and all over the world have been doing this for centuries. Hanging on hollow assurances is the new Reagan "I can't remember." defence. It's well past time for the press and congress to skewer this for the sham that it is and authorize an independent council of Fitzgerald caliber to get to the bottom of this, quickly and transparently.

When Gonzalez could not reassure Biden and Feingold that the administration was not using this program and authority to influence US Media and Public opinion, chills went down my spine.

When the cable news of yesterday evening does not even cover these hearings and Dickerson posts the article he did in Slate, and INSIGHT magazine covering the administration as if it were the Nation, we have the klazon bells blaring loud and clear. This nation now has on its hands a most serious problem, in a post-modernist Administration that has demonstrated itself to be a clear and present danger to the constitutional republic.

How much more damage would they be doing, are they still doing, while these hearings are going on? Any Congressperson that does not see the most serious danger here is not fit for the position.

To the editors of the Monthly: We could have fixed this in 2004 after Abu Ghraib, had you listened to the whistleblowers then, rather than working with others to stifle the story. Now its 2006 and the situation is far far worse.

Posted by: patience on February 7, 2006 at 1:35 PM | PERMALINK

They don't really have another option at this point without admitting they overreached.

How anybody is supposed to challenge a secret program in court is unclear, given the inability to even prove you've been impacted.

Posted by: tinfoil on February 7, 2006 at 1:40 PM | PERMALINK

Let's pretend, just for a second, that FISA is challenged and found unconstitutional. Isn't the president still in trouble, as his actions were carried out while FISA was still the law?

For instance, if I drive 65 in a 55 mph zone and get a ticket, and tomorrow the speed limited is raised to 70, I still have to pay the fine. I don't get a break just because the law is later revised.

Even under the "best case" scenario for the WH (i.e. FISA unconstitutional), I can't see how they can win this one on its merits.

Posted by: moderleft on February 7, 2006 at 1:51 PM | PERMALINK

Matt: "The reason we have the Supreme Court is because we expect the president and Congress to violate the constitution occasionally, it is their job in a way."

Yes, that's exactly why we elect presidents - in order that they violate our constitutional rights.

Nathan: "technically, if Congress believed that the executive has overstepped its bounds or misconstrued the AUMF, it could cut off funding for the NSA. of course, it won't do so."

Disingenuous or naive, you decide. That they haven't done so says nothing about whether or not they believe the executive to have overreached or misunderstood. It says that they're not willing to cripple our nation's defense in order to reel in the administration. It also says that they're political cowards, but the impending election may force the hands of some congressional members. To be continued.

Posted by: chaunceyatrest on February 7, 2006 at 1:53 PM | PERMALINK

"That is a call we elected him to make the FISA court has no place making such judgments."

It is people like this who make me glad we have a constitution cause their version of politics really scares the hell out of me!

Posted by: sheerahkahn on February 7, 2006 at 1:58 PM | PERMALINK

The NSA has been listening to foreigners calling into the U.S. for sometime, because folks outside the U.S. are not protected from search. My guess is that the court would rule this remains legal.

If we are talking about old style analog phones, then the outgoing voice on the same connection might just be considered plain view. That is the court would rule that since one cannot avoid listening to both sides in an analog phone, then a constitutional unwarranted tap of the call coming in, gets you constitutional access to the call going out. This was the case in old style mobster taps, you warranted to hear the mobster, and for free you found out stuff about the other guy.

But, in the digital world this is not the case. If you listen to the voice coming in, then you have to get the call ID, then locate the outgoing link (which may even be on another cable). It is not plain view.

Of course, once you identify a culprit in the states, and you want to target him specifically, it is warrant time.

By the way, I think it is perfectly legal for me to collect radio waves from my backyard, including satellite phone communications.

Posted by: Matt on February 7, 2006 at 1:59 PM | PERMALINK

...

Hey, why doesn't Gonzales put Dick Nixon
on his list of former presidents that have used
this program in a "far broader" sense.

Sure, he mentions just about everyone on Mt. Rushmore.
(Might as well throw Crazy Horse in there too)

No mention of Nixon.

Why is that?

golly gee

...

Posted by: wellstoner on February 7, 2006 at 2:00 PM | PERMALINK

It's a pretty good indication that they don't have anything serious left in their bag.

I hate to disagree; but the supporters of the BushCo "unitary executive" theory do have something very serious left in their bag: control of a whipped Congress.

This is a political issue, not a legal one.

Posted by: Dave Alway on February 7, 2006 at 2:01 PM | PERMALINK

Nathan: We'll give that remark the same absolute credence we give all your highly-confident-but-produced-from-your-beeeehind predictions. My favorite (hard because there are so many good choices) is the one about approximately five gay guys and three straight women going to see Brokeback Mountain, resulting in its financial ruin.

You've got quite a track record there, friend. Any stock tips you want to share?

Posted by: shortstop on February 7, 2006 at 2:07 PM | PERMALINK

Kevin Drum writes: "It's a pretty good indication that they don't have anything serious left in their bag."

I see no indication whatsoever that they aren't serious.

Posted by: s9 on February 7, 2006 at 2:09 PM | PERMALINK
Because remember that the founding fathers almost all fought in the Revolutionary War. They, knew that the Constitution had to be written with war time situations in mind.

Exactly. The Administration and its supporters like to pretend that everything is a contrast between the few years pre- and post-9/11. As if the Constitution was drafted in the go-go '90s by a bunch of baby boomers with no idea what the dangers of the real world are, and they need to protect us.

The Constitution was written by guys who had just personally battled the day's superpower in the Revolutionary War. For anyone to pretend that there are exceptions to the Constitution in times of War is fucking bullshit no matter WHO is PresidentBush, Roosevelt, Wilson or Lincoln. The Constitution is explicit in what powers are granted to whom, and no branch is "supreme", Mr McCarthy. Any powers not expressly given in the Constitution revert back to the People and/or the Statesthey sure as shit don't default back to the one-man branch of the Federal government.

I'm was a goddamn Art major, and I'm clear on that much. When supposed journalists and experts pretend otherwise, they are lying their asses off.

Posted by: Mr Furious on February 7, 2006 at 2:14 PM | PERMALINK

"Yes, that's exactly why we elect presidents - in order that they violate our constitutional rights."

Chauncy, you are wrong here. There is a implicit dynamic we expect. The various government branches should push the boundary to find its limits.

For example, a president can run on the platform that we tar and feather the old money wealthy. He might just get elected on that platform, after all we elected John Adams and Abe Lincoln didn't we? Both of these scoundrels were great breakers of constitutional authority.

The constitution expects presidents to be over exuberant in pursuit of their elected goals. Adams was finally beat back by the Supreme court, but we still consider him to be a great president. Lincoln got away with it.

Posted by: Matt on February 7, 2006 at 2:25 PM | PERMALINK

Idlecrank got it right. But, I would go farther. The Congress has the ultimate power over the armed forces. The President has virtually none. At least that is what a good faith reading of Art. 1 by itself, and even in conjunction with Art. 2, must reveal.

The Congress has the power "To make Rules for the Government and Regulation of the land and naval Forces." Not even getting into its power to declare war, to regulate militias, to make all laws necessary, etc", to appropriate funds--or withhold them. This grant by itself gives Congress absolute power over the armed forces.

The Constitution designates the president as commander-in-chief, probably for no other reason than that it doesn't have to be decided each time the subject comes up who gets to be the commander-in-chief of the army and the navy. But the president is the commander-in-chief of the army and navy that Congress provides. The Congress can regulate as loosely, or closely, as it wishes. It can give the president carte blanche for a week, and then if it likes, prohibit the use of the army for a week. It would likely be foolish for it to be so cavalier, but it does have the power.

Of course, I'm sure it will be objected that a body of precedent over time has established that Congress does not have such power. But as Gonzales ventured yesterday in a response during Specter's concluding questioning, "Senator, of course, I don't believe that it is possible for any president to waive the future president's-- any constitutional authority given to a president under the Constitution..." Very good, Abu. So much for precedent.

Posted by: lostoption on February 7, 2006 at 2:29 PM | PERMALINK

...Alito-fied court.
Now that's fucking scary

Posted by: ckelly on February 7, 2006 at 2:30 PM | PERMALINK

So, if FISA goes to court, and Bush is big on the idea of signing statements, does that mean that President Carter's view on what the FISA law meant are as important as what congress wanted to do? Would he get called to testify as to what he thought the meaning is?
If Bush wants to have signing statements, let them invite President Carter to weigh in on the meaning of the law. Otherwise they are shown to be hypocritical on the issue of signing statements. And if they do ask his opinion, there goes their case.

Posted by: newtons.third on February 7, 2006 at 2:34 PM | PERMALINK

For instance, if I drive 65 in a 55 mph zone and get a ticket, and tomorrow the speed limited is raised to 70, I still have to pay the fine. I don't get a break just because the law is later revised. - posted by moderleft

I think that when constitutional matters are involved this is a bit different. The way I see it, when you declare a law unconstitutional, it's kinda saying it shouldn't have become law in the first place. So I don't think Bush would have problems because of this.

But again, I'm no expert. Maybe you're right.

Posted by: Brazil Connection on February 7, 2006 at 2:34 PM | PERMALINK

"Let's pretend, just for a second, that FISA is challenged and found unconstitutional. Isn't the president still in trouble, as his actions were carried out while FISA was still the law?"

er no. if a law is found unconstitutional, the net effect, as a legal matter, is that the law never existed.

shortstop: hmm...shall we go over my Plame predictions v. everyone else's? do you really want to do that? I pretty much called that one exactly and you know it.

Posted by: Nathan on February 7, 2006 at 2:36 PM | PERMALINK

Oops, it looks like President Carter has weighed in as I hoped he would http://abcnews.go.com/US/wireStory?id=1587734&CMP=OTC-RSSFeeds0312 some further commentary over at kos http://www.dailykos.com/storyonly/2006/2/7/14850/01838 So what I thought was a new, novel, ingenious idea, isn't any of the above.

Posted by: newtons.third on February 7, 2006 at 2:40 PM | PERMALINK

newtons.third:

actually, the theory behind presidential signing statements is that they play the same role as that of legislative history (Congressional debates and the like before enacting a law)...its a guide for a court to look at (certainly not binding) when construing an ambiguous statute.

courts, however, don't allow in subsequent deposition testimony from members of Congress that happened to vote or propose a bill....so neither would they allow in deposition testimony from a former President.

Posted by: Nathan on February 7, 2006 at 2:40 PM | PERMALINK

"Oops, it looks like President Carter has weighed in as I hoped he would http://abcnews.go.com/US/wireStory?id=1587734&CMP=OTC-RSSFeeds0312 some further commentary over at kos http://www.dailykos.com/storyonly/2006/2/7/14850/01838 So what I thought was a new, novel, ingenious idea, isn't any of the above."

well, no, see above. this is legally irrelevant.

Posted by: Nathan on February 7, 2006 at 2:41 PM | PERMALINK

"John Paul Stevens has made his decision, now let him enforce it."
- George W. Bush, February 3, 2007

And with those words began the Great Constitutional Crisis that would bring down a President and several of his closest advisors.

Posted by: Andrew Jackson on February 7, 2006 at 2:42 PM | PERMALINK

Sorry, Nate. Presidential signing statements aren't worth the paper they are printed on. They in no way have the effect of law. It's merely their two cents worth on legislation, and in no way change its meaning or application.

Posted by: Jeff II on February 7, 2006 at 2:45 PM | PERMALINK

Sorry, Nate. Presidential signing statements aren't worth the paper they are printed on. They in no way have the effect of law. It's merely their two cents worth on legislation, and in no way change its meaning or application.

Posted by: Jeff II on February 7, 2006 at 2:45 PM

But don't federal officials, that answer to the president, use its signing statements as a guideline to apply and enforce the relevant codes? I thought that was the real effect of these signing statements, and the reason some experts are becoming worried about them.

Posted by: Brazil Connection on February 7, 2006 at 2:47 PM | PERMALINK

um, Jeff II, are you obtuse?

this in no way invalidates what I said (and I basically agree with you)....

(hint: legislative history has very little effect as well).

Posted by: Nathan on February 7, 2006 at 2:47 PM | PERMALINK

Matt: "There is a implicit dynamic we expect. The various government branches should push the boundary to find its limits."

Enough of this "we" shit, pale face. "We" don't agree that this is simply a virtuous exercise of government, nor (as we might expect in the next mischaracterization of this episode) as the obligation of a responsible steward of government.

If you're so all-fired up for the Executive to push boundaries in order to determine its limits, then - by all means - begin encouraging them to assert their case before a court.

Posted by: chaunceyatrest on February 7, 2006 at 2:48 PM | PERMALINK

Nathan,
But would they allow the signing statement, as Bush would like them to do. If so, it would seem an open and shut case, as Carter, in his signing statement said "The bill requires, for the first time, a prior judicial warrant for all electonic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted." From http://www.cnss.org/Carter.pdf Note the "might" in that last sentence. Non-warranted surveillance is not permitted.

I do accept that the court would not have President Carter testify, thanks for the info Nathan

Posted by: newtons.third on February 7, 2006 at 3:03 PM | PERMALINK

"begin encouraging them to assert their case before a court."

No where in the constitution is the president required to sue himself in court. The boundaries on the president are:
1) eight years,
2) court orders because someone sued, and
3) if the president is obstinate, then impeachment.

There is nothing else, there is no suicide clause, no self-flagellation, nothing, sorry.

By the way, it was Clinton who started this with a law that required all phone companies to provide wiretap ports. Under Clinton, the technology was installed to allow the FBI to sit in their offices and just tippy tap onto your phone from their Microsoft Windows. This was done with congressional approval.

So, we have a president who routed all our phones calls, essentially, to the oval office. Now you have a FISA law that says we can skim through the international calls for what? three days before a warrant looking for probable cause. My PC, given three days, could probably get most of you in that time. You gotta remove the FISA law, or hopefully one of the plaintifs will get it ruled out.

But, if liberals think they can make hay out of this, they are sorely mistaken.

Posted by: Matt on February 7, 2006 at 3:05 PM | PERMALINK

McCarthy opinion is that the president should take reasonable (or even unreasonable) steps of dubious constitution authority; and then let others take him to court. It is not the president's job to file suit against himself or invite a suit against himself to make sure he is doing his job constitutionally.

The reason we have the Supreme Court is because we expect the president and Congress to violate the constitution occasionally, it is their job in a way.

This is not consistent with the Founders' understanding. All three branches of government, at numerous levels--President, House, Senates, judges, and grand/petite civil/petite criminal juries--were believed to have the power to refuse to act on constitutional grounds. It was expected that the President would refuse to enforce any statute he deemed unconstitutional. Indeed, Jefferson unseated Adamns principally on the promise not to enforce the Alien and Sedition Acts. This was one the reasons that the Constitution's text specified an oath to the document itself rather than to the people, land, or borders of the Union. The founders believed that the President should have to stake his name and his honor on the constitutionality of every action he took.

Posted by: Andrew Wyatt on February 7, 2006 at 3:12 PM | PERMALINK

I copied this, it is a summary of FISA.

FISA details
Targets must be either "a foreign power" or "the agent of a foreign power" and, in the case of a U.S. citizen or resident alien, must be suspected of involvement in a crime.
In an emergency, the attorney general may authorize electronic surveillance and make court application up to 72 hours later.

So you can see the problem. I tap Osama when he calls you. Automatically I get your phone number, thanks to Clinton and digital technology. This makes you a suspect, with reasonable cause. I listen to you for three days. I give your address to the FBI.

See the amount of abuse this whole thing results in. Actually FISA needs to be declared unconstiutional, and someone needs to sue Ma Bell for supplying digital access to the president.

Posted by: Matt on February 7, 2006 at 3:14 PM | PERMALINK

It's a pretty good indication that they don't have anything serious left in their bag

This is exactly backwards. GWB is not cooperating and doing as little as possible because it's the best political gift he's been given since Kerry voted against it. He doesn't have to do a thing. He can wait for the Senate to do whatever it wants. He'd love to see a sense of the Senate resolution but that's the last thing THEY want.

The more the Senate complains the more they look like weak on security wimps. They butchered the handling of this and GWB is going to make them pay. For now he just calls their bluff and lets this string run as close to the election as possible. The Senate knows they are unpopular on this and are now begging for a deal. GWB will not speak of it until they cry "Uncle".

This is totally win/win. Their preference is for it to just disappear. It cannot. Thus doing nothing confirms them as wimps and infuriates the mooonbats on the left. They can only hope pressure builds and GWB allows them a face-saving deal. Not until after a few of his judges pass, if ever. Worst case is they find a way to press it and it does go to the courts. Not an easy thing, nor a short thing. With Roberts and Alito look for an easy win. Also look for GWb to drag it out. He gets another appointment he can seal the deal.

Posted by: rdw on February 7, 2006 at 3:15 PM | PERMALINK

But don't federal officials, that answer to the president, use its signing statements as a guideline to apply and enforce the relevant codes? I thought that was the real effect of these signing statements, and the reason some experts are becoming worried about them. Posted by: Brazil Connection

I suppose they do if they are spinless creatures. Presidents don't write laws. They can suggest them. But Congress has the final say. A president's signing statement cannot, as asshole Bush seems to think, contradict the intent of legistlation.

Posted by: Jeff II on February 7, 2006 at 3:15 PM | PERMALINK

Newtons.third:

there is nothing that requires a Court to look to either a presidential signing statement or legislative history. there is also nothing that says it can't. However, many legal scholars (such as Scalia) have argued that a Court should not look to legislative history or signing statements.

Posted by: Nathan on February 7, 2006 at 3:16 PM | PERMALINK

I suppose they do if they are spinless creatures - posted by Jeff II

I assume you meant 'spineless'. And, from what I see on your president, he looks like the kind of leader who prefers his subjects 'spine challenged'.

Posted by: Brazil Connection on February 7, 2006 at 3:21 PM | PERMALINK

Presidents don't write laws. They can suggest them. But Congress has the final say. A president's signing statement cannot, as asshole Bush seems to think, contradict the intent of legistlation.

President do approve laws unless there's a veto proof over-ride. The President does speak for the executive as to the impact of laws as Clinton and other have done frequently. The concept of going to the FISA court to as if FISA is valid is silly. It's also pointless. There's no question what kind of Justice GWB had in mind when he named Roberts and Alito. This will be decided by the Supreme court. It's a longshot that it ever gets there because the politics are so bad and if the attemot is made the process will be string out as long as possible. Either GWb will get to add another conservative justice or McCain will.

Posted by: rdw on February 7, 2006 at 3:24 PM | PERMALINK

Nathan,
That is what I thought. Thanks.
My point is that for those that are signing statement fans, Carter effectively shoots the Bush arguments in the head. If, as Bush would like, the signing statement were how the law is to be applied, well there is no hiding from Carter's. If they say, well that one doesn't count, well then Bush's statement on torture is obviated. Win-win.

Posted by: newtons.third on February 7, 2006 at 3:24 PM | PERMALINK

A president's signing statement cannot, as asshole Bush seems to think, contradict the intent of legistlation.

Posted by: Jeff II on February 7, 2006 at 3:15 PM

And by the way: I completely agree with your logic. I just don't know if your law follows it as well. And, as I said, I read some experts becoming concerned about this practice.

Posted by: Brazil Connection on February 7, 2006 at 3:25 PM | PERMALINK

"It was expected that the President would refuse to enforce any statute he deemed unconstitutional."

Setting aside the debate, the author brings up an interesting point.

If Congress votes a law, over the presidential veto, what is the president's responsibility? The law is legal, not yet having been proved unconstitutional. The president may think the law unconstitutional, but is he the final authority? What if we expected presidents to ignore laws they think are unconstitutional? What if we elected a strict constitutionalist into the White House?

Has there ever been a case where a law was forced upon the president by 2/3 vote, and the president went to court to prevent it's implementation?


Posted by: Matt on February 7, 2006 at 3:28 PM | PERMALINK

Matt: "By the way, it was Clinton who started this with a law that required all phone companies to provide wiretap ports... So, we have a president who routed all our phones calls, essentially, to the oval office."

Sigh... I realize the futility of engaging trolls in their misdirection, but here goes:

Your second point a.) is a lie, and b.) doesn't follow logically from your first point.

"No where in the constitution is the president required to sue himself in court. The boundaries on the president are:
1) eight years,
2) court orders because someone sued, and
3) if the president is obstinate, then impeachment."

The initial post is pretty clear on this. The President is required to comply with the law, in this case, FISA. He hasn't, and he doesn't think he has to. Fine. Now it's appropriate for him to explain, to a judge or 9 Justices, why he doesn't have to. This business about the President suing himself is yet more misdirection. And it's still another one of your distractions to talk about exactly who would have the right to sue the President under these circumstances, since nobody has any way of knowing whether or not his or her phone has been tapped. And that's why Dave Alway was right, when he commented above, that this is a political issue, not a legal one.

Posted by: chaunceyatrest on February 7, 2006 at 3:34 PM | PERMALINK

newtons.third:

agreed.

Posted by: Nathan on February 7, 2006 at 3:38 PM | PERMALINK

Kevin:

I urge you to read a legal brief submitted to the Judiciary Committee by morgancunningham (view at http://www..net/downloads/article_18.pdf) It is refrred to in this post extensively.

I disagree with your claim that Andrew says, "the president is absolutely sovereign when he decides that his actions are required to protect the public from foreign threats. Once he's made that decision, whether secretly or not, Congress and the courts have no say in the matter. None."

He does NOT write that the President is absolutely sovereign, he claims that the president is 'supreme' in matters of foreign intelligence collection. (Andrew also does NOT write that the courts have no say in the matter. He 'opines' that the FISA court, in particular, has no place in judging the NSA program. I take this to mean that the FISA court has no say in the constitutionality of the program, but this is open to interpretation.)

Indeed, the President DOES have 'core' authority over foreign intelligence activities. And the Sup Crt has said that the conduct of foreign affairs is "a realm in which the Court has recognized that it would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret." In 1936 the sup crt said: "delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations--a power which does not require as a basis for its exercise an act of congress, but which ... must be exercised in subordination to the applicable provisions of the Constitution." The case has been cited over 150 times.

Further, from morgan's submission to the Cmmte, "The Sup Crt's test for whether one branch of government has violated our constitutional principle of separation of powers and, therefore, acted unconstitutionaly, is whether the action rises 'to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions."

Many readers here may be unaware that there was an admission accompanying the the original passage of FISA that stated, "The conferees agree that the establishment by this act of exclusive means by which the President may conduct electronic surveillance DOES NOT FORECLOSE A DIFFERENT DECISION BY THE SUPREME COURT. The intent of the conferees is to apply the standard set forth in Justice Jackson's concurring opinion in the Youngstown case."

This suggests three things: (1) Congress itself had doubts about FISA's attempt to completely control the President's authority to conduct foreign intelligence surveillance. (2) Congress understood that even within zone 3 there are limits to the degree to which Congress may constitutionally restrict the President in this area. (3) Congress specifically contemplated that the degree to which FISA ties the President's hands might one day reach the Sup Crt - this makes sense ONLY IF Congress contemplated that Carter or a future president might be required to act outside the FISA statute.

From morgan (paraphrase): "Not every statute passed by Congress can, merely by using words of exclusivity, completely extinguish the constitutional prerogatives of another co-equal branch. If Congress could do so, we wouldn't need a judicial branch to decide separation of powers issues."

As Pres Clinton's asst atty gen advised him in 1994, When the President believes that an enactment unconstitutionally limits his powers, he has the authority to ... decline to abide by it, unless he is convinced that the Court would disagree." He advised Pres Clinton that it is a President's responsibility to decline to execute unconstitutional statutory provisions, "limiting the President's authority as Commander in Chief. ... the Pres has the auth to act on his understanding of the Const."

Posted by: jerry on February 7, 2006 at 3:41 PM | PERMALINK

"It is the President, not the Judiciary, which is supreme in matters of foreign intelligence collection and national security. It is, moreover, wartime."

Beg pardon? When did the Congress declare war, and against whom? The whole argument about Bush, or any president, being able to ignore laws for national security expediency sake presupposes that a war's been declared. Is Bush now appropriating that power, too? McCarthy's broadening of the scope of presidential power to include peacetime has the virtue of rendering this point moot, along with most of the rest of the U.S. Constitution.

Isn't this the same crowd that invoked Posse Comitatus as a justification for not bringing in the 82nd Airborne to restore order and assist in rescue and evacuation in the wake of Katrina? If the President's powers are truly as broad as he seems to think and McCarthy suggests, why didn't he invoke them when thay might have actually done some good?

Posted by: topper on February 7, 2006 at 3:43 PM | PERMALINK

It seems to me that beating Democrats in elections is a critical element of Bush's war on terror. It is the President in our system who makes the ultimate judgment about what must be done to protect the public from foreign threats and if that means fixing elections or paying off media corporations so be it. If the democrats win we all lose.

Posted by: dgf on February 7, 2006 at 3:45 PM | PERMALINK

I'm right! I'm right! I am always right! My mother calls me a nebbish and I hate being made to feel small. So here I am to harumph and puff my self-inflated ego.

Posted by: Nathan on February 7, 2006 at 3:47 PM | PERMALINK

It seems to me that beating Democrats in elections is a critical element of Bush's war on terror. It is the President in our system who makes the ultimate judgment about what must be done to protect the public from foreign threats and if that means fixing elections or paying off media corporations so be it. If the democrats win we all lose.

Posted by: dgf on February 7, 2006 at 3:45 PM

:) That was actually funny. And sad, in a funny way.

Posted by: Brazil Connection on February 7, 2006 at 3:47 PM | PERMALINK

Shortly, my other personality will be along to puff some more in outrage over being revealed as an ass. That's me!

Posted by: Nathan on February 7, 2006 at 3:49 PM | PERMALINK

But can a member of any branch of government - executive, judiciary, legislative - spy on american citizens without probable cause? Isn't this much easier to answer than all this separation of powers thing (which is also important, of course)?

Posted by: Brazil Connection on February 7, 2006 at 3:52 PM | PERMALINK

If Congress votes a law, over the presidential veto, what is the president's responsibility?

Good question. It's hardly a settled matter in constitutional law circles. It's often forgotten that Andrew Johnson was impeached for failure to enforce or follow a statute.

Here's a review article for starters.

Has there ever been a case where a law was forced upon the president by 2/3 vote, and the president went to court to prevent it's implementation?

I'm no lawyer, but I don't think the President has standing to bring a case in federal court over the constitutionality of a statute. Who would be the parties in such a case? I think a citizen with standing would have to bring a case in federal court against an agency in order to challenge the statute, with the consul to the President or the SG filing an amicus brief in support of the citizen.

Posted by: Andrew Wyatt on February 7, 2006 at 3:55 PM | PERMALINK

Nathan: Shortly, my other personality will be along to puff some more in outrage over being revealed as an ass. That's me!

Taking my name is so juvenile. It's also immature.

Posted by: Yet another highly accurate Nathan impersonation on February 7, 2006 at 3:57 PM | PERMALINK

See, I said my other personality would be along to defend my self-inflated self. Help me! Help me! I am a nebbish.

Posted by: Nathan on February 7, 2006 at 4:05 PM | PERMALINK

I don't need help. I have all the answers any of us needs, and no problem making them up as we go along.

By the way, you're really juvenile.

Posted by: Y.A.H.A.N.I. on February 7, 2006 at 4:15 PM | PERMALINK

Revealing my self-inflated sense of self is so immature and juvenile. I am a little boy trapped in a pompus old man who gloats and praises himself. What a grown-up I am!

Posted by: Nathan on February 7, 2006 at 4:18 PM | PERMALINK

it's interesting to watch the same patterns emerge in each discussion of this matter, although some of the bush defenders have sharpened their arguments a touch.

just to hit on 3 highlights: a.)i like the way that rdw is convinced that opposing bush on this is a political loser. too bad for him the polls don't demonstrate that; b.) the president's constitutional obligation is to see to it that the laws are "faithfully executed." it is apparently acceptable (and i'm looking forward to reading the link that andrew provided) for a president not to enforce a law, but for a president to violate the law is another matter altogether; c.) of course it's not up to the senate to determine constitutionality. that's the supreme court's job. so of course the senate recognized that FISA entered into complex constitutional ground, but we should bear in mind that, in the Keith decision, justice powell called on the senate to enact "statutory guidelines."

Posted by: howard on February 7, 2006 at 4:21 PM | PERMALINK

BTW - one other note: in his inauguration the President takes an oath to uphold the Constitution.

So ignoring it isn't great form.

Posted by: Samuel Knight on February 7, 2006 at 4:21 PM | PERMALINK

My take is that Bush's current stance is designed as a future defense in a possible impeachment trial. He can now righteously claim that he wasn't aware that he broke a law. In cases of this sort, where counsel has apparently approved the action, ignorance of the law, can be a useful defense.

So, he may get away with it. So far he has.

Posted by: Frank Dixon on February 7, 2006 at 4:30 PM | PERMALINK

There is a very good reason why the administration make a case that FISA is unconstitutional, it is to avoid a SCOTUS confrontation that they would most likely loose, and not just on the merits described by many readers above, but because six members of this Court has already said that, although the President does have some inherent powers as Commander in Chief, the powers of the President should not be unchecked and there are roles for the Congress.

DOJ and Gonzales often refer to the Hamdi ruling to support their contentions of the Presidents inherent authority as Commander in Chief. These references are out of context of the overall findings and judgement of the Court. The administration lost in Hamdi v Rumsfeld and no amount of spin will change the fact that they would be destined to lose again.

In Hamdi, OConnor wrote We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nations citizensWhatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflicts, it most assuredly envisions a role for all three branches when individual liberties are at stake. Renquist, Kennedy, Breyer joined with OConnor. Souter and Ginsberg concur in part (even more wary of the power of the Executive).

Maybe more important, Scalias writes in his dissent, signed by Stevens, that the founders did feared the power of the military and sought to balance its power between Congress and the Commander in Chief, criminal process was viewed as the primary means -- and the only means absent Congressional action suspending the writ [of habeas corpus] not only to punish traitors, but to incapacitate themExcept for the actual command of military forces, all authorization for their maintenance and all explicit authorization for their use is placed in the control of Congress under Article I, rather than the President under Article IIA view of the Constitution that gives the Executive authority to use military force rather than the force of law against citizens on American soil flies in the face of the mistrust that engendered these provisions. Scalia dissents because if civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires, rather than by silent erosion through an opinion of this court. By his own words and reasoning, Scalia should be inclined to uphold the constitutionality of FISA and find the force resolution argument insufficient to meet the his done openly requirement.

Only Thomass dissent would support the supremacy of Presidents inherent powers as Commander in Chief over FISA. Simply put, the votes arent there, even with Roberts as a maybe and Alito as a probably to join Thomas.

The Aministration doesnt stress the contention that FISA is unconstitutional not because they do not believe the argument, but because they dont think the argument will be upheld in the Supreme Court. They avoid fighting a losing battle because, so far, they have been able to run their program as they see fit.

The Administration will not win this one, the Supreme Court has already told them so...read Hamdi.

Posted by: MassachusettsLiberalinDC on February 7, 2006 at 4:34 PM | PERMALINK

Steel Seizure Case... Relevant perhaps?

Wierdest thing in the world - evil Republicans and academics say these types of things, and all the lefty and common wisdom Law Professors tell their students "engage their ideas, given them the benefit of the doubt, tackle them honestly, they're really smart, etc" BUT if I put these types of responses down for an exam, I would get a C- and deserve it. Guess what? The President doesn't get to rewrite the Constitution whenever he wants and determine how much power it gives him. Yeesh

Posted by: MDtoMN on February 7, 2006 at 4:36 PM | PERMALINK

Judges and justices don't have to consider legislative history, but all the cases I've read during my lifetime indicate that it's given a lot more consideration than signing statements.

Posted by: Ringo on February 7, 2006 at 4:40 PM | PERMALINK

All that is left for Bush & Cheney to decide is whether they use their "wartime" powers to cancel the presidential election in 2008.

Posted by: bushworstpresidentever on February 7, 2006 at 4:46 PM | PERMALINK

BUT if I put these types of responses down for an exam, I would get a C- and deserve it.

No, you'd get an F.

Posted by: Stefan on February 7, 2006 at 4:46 PM | PERMALINK

"But can a member of any branch of government - executive, judiciary, legislative - spy on american citizens without probable cause?"

Well, no, not without a warrant, and the judge must agree on probable cause. Can the prez get information about you from listening to foreigners calling the U.S.? Evidently, yes. Can the prez use that information for further spying on you without a warrant, say just watch your house? Evidently yes, if the information gained about you was not obtained illegally.

So, there is the rub. Bush, essentially, listened to incoming calls, got information on you, listened to your for 72 hours, and gave that info to the FBI. Bush cannot listen to you for 72 hours, I think not, but he is doing so, and Congress let him do so with FISA.

According to precedant, our lord Bush can make constitutional judgements. Bush really can take two constitutional stands; 1) Ignore the provision of FISA that lets him listen to you for 72 hours, or 2) Or treat his warrantless tap on you as an extension of his constitutional powers as commander in chief. That is he can go either way.

We sort of fucked ourselves when Woodrow Wilson refused to implement the tenure law for postmasters on constitutional grounds. The Supreme Court agreed, essentially granting the prez great powers by virtue of the murky gray area of some laws combined with the extreme positions available for constitutional interpretation.

Posted by: Matt on February 7, 2006 at 4:47 PM | PERMALINK

howard: i like the way that rdw is convinced that opposing bush on this is a political loser. too bad for him the polls don't demonstrate that;

I don't think he's really convinced, any more than the rest of our trolletariat is convinced when they announce that it's their sad duty to inform us that whatever action or position we're taking at the moment will be a loser at the polls. They just say it because, as the days pass and the Bush scandals multiply, they have no way to honestly argue for this administration's competence or trustworthiness.

As the Bush administration falls into ever-deeper disarray and public disfavor, this talking point becomes increasingly hysterical and desperate. It's getting harder for rdw, tbrosz, conspiracy nut, Patton, McA, etc. to pull it off with any kind of insouciance, not that any of them were ever much good at at faking amused disinterest.

Posted by: shortstop on February 7, 2006 at 4:47 PM | PERMALINK

I am a little boy trapped in a pompus old man('s body) who gloats and praises himself. Posted by: Nathan

You forgot to gild this lily by conceding that you are a know nothing asshole as well.

Posted by: Jeff II on February 7, 2006 at 4:51 PM | PERMALINK

shortstop, undoubtedly you're right.

on the other hand, it's a very fine line between denial and delusion....

Posted by: howard on February 7, 2006 at 5:14 PM | PERMALINK

Mad props to shortstop for taking advantage of an opportunity to use the word "insouciance."

IMO, "increasingly hysterical and desperate" pretty well covers our beloved Trolletariat. And why not? As shortstop said, and howard has commented in the past, there is no way to honestly defend the Bush Administration's mendacity, incompetence and corruption. Many of them, of course, leap to dishonest defenses without so much as a backwards look, but the weakness of their arguments is all to sadly obvious.

What astonishes me is the unflinching advocacy of an unchecked Executive in a time of "war" that's declared by the President alone and -- more importantly -- declared over, if at all, by the President alone. I suppose they can't imagine -- certainly rdw will pretend not to -- a Democratic President. I simply cannot believe they would grant such power willy-nilly to a Democrat. I wouldn't.

Posted by: Gregory on February 7, 2006 at 5:18 PM | PERMALINK

I'm in the "they doth protest too much" camp.

With Plame, Bush didn't seem to care at first, but as soon as NSA came out, bam! they are out in force defending the legality of wiretaps. I guess they had notice since the NYTs, in all their wisdom, sat on the story for a year. But I suspect there is more to this story. I suspect spying on political enemies or worse. I feel like they are out ahead of the story, directing where it goes including this joke of an investigation and hearings, all in a effort to steer us away from the another watergate mess.

Come on Carl and Bob, get to work.

Posted by: the fake Fake Al on February 7, 2006 at 5:38 PM | PERMALINK

Dumb question: If the Bush Administration finds FISA to be so distasteful and such an impediment to its imperial ambitions, and they also have a GOP majority in Congress that's basically in their pocket, why doesn't Bush simply get one of his lackeys in Congress to introduce legislation abolishing FISA?

(I do tend to agree with those who are saying that this really isn't about FISA.)

Posted by: dr sardonicus on February 7, 2006 at 5:40 PM | PERMALINK

We are not at war. The AUMF can not substitute for a Congressional declaration of war. Absent a declaration of war, President Bush cannot claim wartime powers.

And that's without going into the excellent arguments here about Article I and the Fourth Amendment. Or the fact that you can't declare war on "terror"; if ideas could be beaten into surrender we'd still have a Soviet Union.

And when did conservatives get on board with the idea of limitless presidential authority?

Posted by: zak822 on February 7, 2006 at 6:31 PM | PERMALINK

zak822, i think it's fair to say that actual conservatives are not on board with the idea of limitless presidential authority; right-wingers are on board with the idea of limitless presidential authority for republican presidents.

Posted by: howard on February 7, 2006 at 6:47 PM | PERMALINK

I also put this on the blinded by science thread. My reasoning as to why we, as a country, are not legally at war:

This has been a subject on several other threads, so I did a little research to see if we, as a country, are legally at war. Despite what many say, including Professor Volokh, I don't think we can legally say our country is at war. Here is my reasoning.

Congress passed legislation in 1976 terminating all existing declared national emergencies, and that statutory provision continues in effect despite the present United States involvement in Iraq. See 50 U.S.C. 1601. The United States has declared war on other nations eleven times in its history, the last time being June 5, 1942, when war was declared against Bulgaria, Hungary and Romania. The United States did not specifically declare war in either Afghanistan (military action authorized by Congress on September 18, 2001) or Iraq (H.J. Res. 114, October 16, 2002).

The current situation in Afghanistan and Iraq resembles Vietnam. The United States never declared war in Vietnam. Authorization for the Vietnam War was provided by the Gulf of Tonkin Resolution, August 7, 1964, and on March 4, 1965, the State Department issued this statement:

The fact that military hostilities have been taking place in Southeast Asia does not bring about the existence of a state of war, which is a legal characterization of a situation rather than a factual description. What we have in Viet Nam is armed aggression from the North against the Republic of Vietnam. Pursuant to South Vietnamese request and consultations between our two Governments, South Viet Nam and the United States are engaged in collective defense against that armed aggression. The inherent right of individual and collective self-defense is recognized in Article 51 of the United Nations Charter.

Department State Bulletein, Vol. LII, No. 1343 at 403 (Mar.22, 1965).

Now, there is some dicta that supports in case law that supports the view that a state of war doesn't have to be declared to exist. Eugene Volokh mentions this here http://volokh.com/2002_09_08_volokh_archive.html#85444270 . The good professor doesn't quite go into all the case law. In Montoya v. United States, 180 U.S. 261, 266-67 (1901), the Supreme Court implied that war may exist without a declaration and that such war may be levied by a group that is not a nation:

If [the] hostile acts [of a collection of marauders] are directed against the government or against all settlers with whom they come in contact. . . it is evidence of act of war. . .
We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact Indians are engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to dispatch a military force for their subjugation, is sufficient to constitute a state of war.

Montoya at 266-267.

This case is based on two earlier cases: in The Prize Cases (The Brig Amy Warwick), 67 U.S. 635, 666, 668-669, the Court made the following statements: [w]ar may exist without a declaration on either side, and [i]f a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. In Bas v. Tingy, 4 U.S. 37, 40-44 (1800) several justices agreed that a state of war may exist between two nations without a formal declaration of war.

A series of more recent cases have defined the term war for purposes of determining whether an insured party may be compensated for loss, and provide a better framework for determining when a nation is at war. In Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., 505 f.2d 989 (2nd Cir. 1974), the court stated that war is a course of hostility engaged in by entities that have at least significant attributes of sovereignty. A later case, Holiday Inns Inc., v. Aetna Insurance Co., 571 F.Supp.1460 (1983), permitted Holiday Inns to recover on a policy by Aetna, as war, a peril that would have excluded coverage, did not exist. The Court held that war exists when it is between sovereign or quasi-sovereign states, and that no sovereign or quasi-sovereign states were involved in the destruction of the Holiday Inn in Beirut. Although the earlier cases have not been explicitly overruled, the more recent cases better address the issue of what constitutes a war and are more persuasive.

Since the United States currently has diplomatic relations with both Iraq and Afghanistan, and no war was declared against either country, personally, I don't think we are, legally, in a state of war.

Bart

Posted by: Bartholemew Throckmorton IV on February 7, 2006 at 8:11 PM | PERMALINK

Here is a good argument against the administration:

http://balkin.blogspot.com/FISA.AUMF.ReplytoDOJ.pdf

Posted by: contentious on February 7, 2006 at 8:58 PM | PERMALINK

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."


There is that word "unreasonable". You could argue that evesdropping based on foreign-obtained information of communication networks including al Qaeda was not unreasonable. I think the Administration's justification is that it has authority to conduct reasonable searches.

Posted by: contentious on February 7, 2006 at 9:05 PM | PERMALINK

We are not at war. The AUMF can not substitute for a Congressional declaration of war.

Posted by: zak822 on February 7, 2006 at 6:31 PM | PERMALINK

Actually it is. Note that a declaration of war does not have to have the words 'declaration of war'.

And the fact that many presidents have used such powers would make it 'reasonable'.

Unless you can argue FISA changes the definition of reasonable because it creates an alternative venue for faster warrants. But Bush doesn't have to take that interpretation until a court order tells him to.

Which the informed members of Congress or Senate didn't seek to get.

Have a vote on it then. Put a 'sense of the senate' type vote on whether the search is unreasonable. It would be and it would create more ammo for Rove to dislodge some loser left Dem senators.

nya-nya-nyaaah!

Posted by: McA on February 7, 2006 at 9:38 PM | PERMALINK

here's what you gotta like: idiots like mca making arguments that are too ridiculous for even gonzalez to offer up.

the way we know whether a search is "reasonable" or not is by getting a frickin' warrant: that's how the 4th ammendment has been read forever and a day, until suddenly the bush enablers try to invent new meanings.

FISA governs the ability of the executive to undertake electronic surveillance on american citizens for purposes of foreign intelligence. bush's job is to see to it that the laws are faithfully executed. this has historically been interpreted to mean that he can choose not to enforce a given law; this has NEVER been interpreted as to mean that he can violate the law.

it's not his decision, you numbskull, because he's not King, he's president, despite his delusional belief that being commander-in-chief is just like being king.

and no president has undertaken electronic surveillance of american citizens for foreign intelligence purposes since FISA was passed, for the simple reason that FISA is the law of the land, and presidents don't get to reinvent the law of the land just 'cause they feel like it.

as for a "sense of the senate" resolution, what a frickin' waste of time: a sense of the senate resolution is utterly meaningless.

what is required here is for bush to make the case as to why FISA should be changed. Then the senate can do its constitutional job and, you know, legislate. Why won't Bush ask them to?

try to learn some facts.

Posted by: howard on February 7, 2006 at 9:50 PM | PERMALINK

Bartholemew Throckmorton IV on February 7, 2006 at 8:11 PM


Are the Taleban and Baathist hold-overs "quasi-sovereign" states? How about rebels against an aly, like the MILF?

Take it to court and see how it's decided.

howard: what is required here is for bush to make the case as to why FISA should be changed. Then the senate can do its constitutional job and, you know, legislate. Why won't Bush ask them to? Bush does not indeed believe that it is "required". I believe that it would help him politically to make the case, but I doubt that it's required until a court says so.

I think you'll like the document that I linked above.

Posted by: contentious on February 7, 2006 at 10:49 PM | PERMALINK
And the fact that many presidents have used such powers would make it 'reasonable'.

No, it wouldn't, not that any Presidents have used the exact powers this President is claiming, nor have many used similar powers contrary to express prohibition by Congress; many of the most cited allegedly parallel examples (universal monitoring of foreign communication in WWII, for instance) were expressly authorized by Congress at the request of the President, notwithstanding a state of declared war.

Unless you can argue FISA changes the definition of reasonable because it creates an alternative venue for faster warrants.

FISA doesn't change the definition of reasonable, it expressly forbids electronic surveillance not complying with its requirements; making it criminal even if, absent the prohibition in FISA, it would be "reasonable" under the Fourth Amendment.

But Bush doesn't have to take that interpretation until a court order tells him to.

Which the informed members of Congress or Senate didn't seek to get.

Individual members of Congress, it is well established, lack standing to challenge executive actions in Court.


Posted by: cmdicely on February 7, 2006 at 10:56 PM | PERMALINK

BUSH OBEYED THE LAW:

[Parphrased from Powerline]

At least five federal appellate decisions stand for the proposition that the President has the constitutional authority under Article II to order warrantless surveillance for foreign intelligence gathering purposes. This means that the NSA program is legal. Regressive-Democrats offer no argument or authority to the contrary.

Presumably the law the Regressive-Democrats want NSA to comply with is FISA. But the Constitution, as well as FISA, authorizes the President to carry out electronic surveillance. As the FISA court of appeals wrote in 2002, if FISA tried to limit the President's Article II power to conduct warrantless surveillance, it would be unconstitutional to that extent. Regressive-Democrats offer no comment on these legal principles. Probably they is unaware of them.

And, no credible Democrat thinks the program itself should not be permitted.

KNOCK YOURSELF OUT, R-Ds

TOH

Posted by: The Objective Historian on February 7, 2006 at 11:03 PM | PERMALINK

You need only three words to expose the hypcorisy of the Republicans' argument: "President Hilary Clinton." Ask those sycophants at The Corner if they'd be making the same arguments in favor of unbridled executive power if it was a Democrat in office -- particularly a Democrat they despised. Of course not. Fact is, they don't believe that a president should have unchallenged authority to do whatever he wants. They just believe that a Republican president should.

Posted by: Fred App on February 7, 2006 at 11:10 PM | PERMALINK

my god: every day in every way, the objective historian gets stupider and stupider. you wouldn't have thought it possible.

Posted by: howard on February 7, 2006 at 11:17 PM | PERMALINK

Howard:

Response to Powerline's point is what?

5 v. 0 in terms of federal court decisions.

Also, do you admit that by your standard Clinton "broke the law" (tresspass, breaking and entering) when he ordered federal agents to conduct a physical search of the CIA traitor's home in 1994? If you do so admit, then you also admit that Bush has not done anything unprecedented here (from Washington to Clinton have done the same).

5 v. 0, Howard. Or do you have a federal court decision you'd like to share?

Stupid dolt.

TOH

Posted by: The Objective Historian on February 7, 2006 at 11:42 PM | PERMALINK

If you guys want to save time wasted constructing your tin-foil-hat fantasies, read Powerline; they've anticipated you, defeated you, and thus obviated you before you've even typed a word.

TOH

Posted by: The Objective Historian on February 7, 2006 at 11:45 PM | PERMALINK

objective historian, it's like we never went through this precise same discussion yesterday, which is why i say you get stupider and stupider.

To repeat, when Clinton authorized warrantless physical surveillance for purposes of foreign intelligence gathering, FISA didn't yet cover physical surveillance. Ergo, what he ordered was perfectly legal.

He then supported a change in FISA to incorporate physical surveillance; after that he didn't authorize warrantless physical surveillance.

this was true yesterday, it is true today, and it will be true tomorrow.

that you can't remember from one day to the next, or are so crazed that you can't actually comprehend simple english sentences, or so hypnotized by the morons at powerline isn't for me to say: who knows - maybe you're not the same clown. maybe a different propaganda robot is sent here to post under the name objective historian every day to annoy us by posing the same insipid arguments.

as was also said, ad nauseum, yesterday, is that inherent authority is not the same as endless authority. this is a basic constitutional principle. so the fact that the president has inherent authority to conduct electronic surveillance for foreign intelligence purposes is not the same as saying that he has the right to do whatever he wants. as senator feingold noted, that is a pre-1776 mindset.

It is no different than noting that while the president has not only the inherent but in fact the explicit authority to be the commander-in-chief, he doesn't get to determine the size of the army. That is the job of congress, which controls the power of the purse. The constitution is full of these kinds of situations which are known, my little bloviating moron, as checks and balances. It is the position of the powerline numbskulls that checks and balances have no meaning, an argument that makes sense in dictatorships but not in America.

FISA has been affirmed as constitutional in every court case in which the law has been addressed. Now, none of these cases has been before the supreme court, so who knows? maybe the supreme court will find FISA unconstitutional if and when it gets there.

but in the meantime, it is the constitutional obligation of the president to see that the laws are faithfully executed, not to invent phony rationales like AUMF provides me all the authority i need to break FISA.

so, in short, the powerline clowns are talking through their asses while failing to address the actual issue on the table. unsurprising.

and you, by echoing their fevered imagination, and acting as though we hadn't reamed you up and down yesterday with your pathetic little arguments that demonstrated nothing so much as your ignorance of the constitution, FISA, checks and balances, and the american way, are, i'm forced to conclude, growing stupider by the day.

wake us when you have something intelligent to offer.

Posted by: howard on February 7, 2006 at 11:55 PM | PERMALINK

BUT HOWARD, EVEN WITHOUT FISA COVERING PHYSICAL SEARCHES, CLINTON "BROKE THE LAW" (SEVERAL LAWS), INCLUDING BREAKING AND ENTERING AND TRESSPASS.

YOU ARE AN IDIOT. COVER THIS POINT, CLOWN. ONCE YOU UNDERSTAND IT, THAT IS. FOOL.

TOH

Posted by: The Objective Historian on February 8, 2006 at 12:42 AM | PERMALINK

honest to goodness, objective historian, you get stupider not just by the day but by the minute. you don't even seem to understand your own arguments.

let's review: there is an inherent authority for the president to utilize surveillance - electronic or physical - for purposes of foreign intelligence. that's been your contention all along.

the core constitutional issue is whether US citizens (or US persons) are involved. (it's where "breaking and entering" is involved too: foreign powers, or agents of foreign powers, have no consitutional rights to protect.)

Clinton's physical searches were not aimed at US persons; indeed, they required a determination by the attorney general that no us persons were the targets.

now, if you'd like to see a president who claimed to use national security as a basis for actual breaking and entering of US person's homes or offices, you might spend a few moments with a decent biography of Richard Nixon and read about the plumbers.

the bush administration, of course, is full of people who think the only thing nixon did wrong was to get caught. stunningly enough, in comparison to the thugs in the white house nowadays, nixon looks like a man of honor.

Posted by: howard on February 8, 2006 at 12:55 AM | PERMALINK

Howard writes:

"Clinton's physical searches were NOT AIMED AT U.S. PERSONS; indeed, they required a determination by the attorney general that no us persons were the targets."

WRONG AND YOU ARE DONE, DONE, DONE. RE-READ ALL OF YOUR ASSININE INSULTS. THE TARGET OF CLINTON'S 1994 SEARCH WAS ALDRICH AMES, A U.S. PERSON.

http://www.nationalreview.com/york/york200512200946.asp

In a little-remembered debate from 1994, the Clinton administration argued that the president has "inherent authority" to order physical searches including break-ins at the homes of U.S. citizens for foreign intelligence purposes without any warrant or permission from any outside body. Even after the administration ultimately agreed with Congress's decision to place the authority to pre-approve such searches in the Foreign Intelligence Surveillance Act (FISA) court, President Clinton still maintained that he had sufficient authority to order such searches on his own.

"The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."

The debate over warrantless searches came up after the case of CIA spy Aldrich Ames. Authorities had searched Ames's house without a warrant, and the Justice Department feared that Ames's lawyers would challenge the search in court.

The debate over warrantless searches came up after the case of CIA spy Aldrich Ames. Authorities had searched Ames's house without a warrant, and the Justice Department feared that Ames's lawyers would challenge the search in court.

IN YOUR FACE.

TOH

Posted by: The Objective Historian on February 8, 2006 at 1:10 AM | PERMALINK

objective, ol' buddy, once you are an agent of a foreign power, as Ames was (and as i noted in my comments), you don't get the privileges of a US person. hence, no breaking and entering.

that ames might have challenged the search in court isn't a confirmation that clinton "broke" the laws with respect to trespass and breaking and entering.

keep trying: even monkeys produce shakespeare once in a (very great) while.

Posted by: howard on February 8, 2006 at 1:25 AM | PERMALINK

Again, do you argue Clinton "broke the law", i.e., the laws against tresspass and breaking and entering? If so, fine. And under that analysis, every President has "broken the law" from Washington to Bush II. But the law the broke was Congressional legislation which is limited by the Constitution. Hence, their Constitutional power to do so means they disregarded the law, but obeyed THE LAW OF THE LAND.

TOH

PS TOTAL VICTORY: Howard: "Clinton's physical searches were not aimed at US persons; indeed, they required a determination by the attorney general that no US persons were the targets." WHAT AN IGNORAMUS YOU ARE, ESPECIALLY AFTER YOUR PRATING. OR WAS AMES, THE TARGET OF THE SEARCH, NOT A U.S. PERSON?

HA!

Posted by: The Objective Historian on February 8, 2006 at 1:25 AM | PERMALINK

Ha-ha-ha-ha-ha-ha.

Too silly and easy to rebut; but, I believe in shooting a wounded animal if they have no hope of survival. Do you not have to prove first that he was an agent of a foreign power? Did Clinto prove that.

And, creative, yes; but has anyone argued that Ames was not a U.S. person other than you because he was suspected of being a spy? NO! Not even Clinton.

FOOL!

TOH

Posted by: The Objective Historian on February 8, 2006 at 1:28 AM | PERMALINK

OR ALTERNATIVELY HOWARD'S REASONING: IF THE PRESIDENT DECIDES SOMEONE MIGHT BE A FORGEIGN AGENT, HE CAN DECIDE THEY ARE NOT U.S. PERSONS, AND HE CAN DO WHATEVER HE WANTS TO THEM [AS LONG AS, ONE WOULD HOPE FOR A FREE AMERICA'S SAKE, IT DOES NOT VIOLATE THE GENEVA CONVENTIONS REQUIREMENTS FOR THE TREATMENT OF SPYS]? IS THAT IT HOWARD.

HA!

YOUR DONE, DOLT.

TOH

Posted by: The Objective Historian on February 8, 2006 at 1:32 AM | PERMALINK

what a truly pathetic little child you are objective historian: unable even to collect your thoughts sufficiently to write one coherent posting.

as i wrote: (it's where "breaking and entering" is involved too: foreign powers, or agents of foreign powers, have no consitutional rights to protect.)

you see, mon cheri, there is a definition of "agent of foreign power," and Ames met that definition. hence: legal behavior.

hence: breaking and entering not relevant.

you see, Clinton understood that FISA governs dealing with surveillance for foreign intelligence purposes. the only question was whether physical searches required the approval of the FISA court in advance. Since there was no statutory requirement, he could rely entirely on the inherent authority argument.

once the statutory requirement was passed by congress, he then obeyed that.

but fine, my little fuckhead: you want to impeach Clinton? go right ahead....

meanwhile, this is a defense of Bush violating FISA exactly...how?

Posted by: howard on February 8, 2006 at 1:48 AM | PERMALINK

howard, I applaud your patience and perserverence in attempting (even as you know it's futile) to educate the so-called "objective historian," who proves by his/her/its every post that he/she/it is neither.

I, for one, am endlessly amused that TOH is parroting already-debunked talking points by PowerLine and National Review. I've long suspected that the right-wing media is a good example of market forces in action: There's clearly a great demand for people like TOH to read comforting falsehoods, and the clowns at National Review and PowerLine have a good gig in dishing out that pablum. But as we've seen with TOH and others, their arguments are lame beyond belief, unable to withstand scrutiny -- which is, I suspect, why so many right-wing blogs don't allow comments -- and rely instead on mindless repetition to be accepted as "fact."

As Edward James Olmos said at the end of Blade Runner (and with apologies to shortstop, Global Citizen and the rest of our stalwart female commentors), you've done a man's job, sir.

Posted by: Gregory on February 8, 2006 at 9:06 AM | PERMALINK

howard, Gregory--

They keep trying to throw the Gorelick/Truong/Aldrich Ames at this issue when, clearly, they do not understand the most salient point:

The National Security Agency was not a party to any of those cases. Other US agencies were--not the NSA.

As we say out in the real world, big diffy.

The best way to explain it to a mouthbreathing turdshiner like TOH/Alice/Patton is to put it this way:

You don't turn the foreign intelligence gathering apparatus--the NSA--against US persons without a FISA warrant. Any President, regardless of whether they are Democrat or Republican, who asserts that they can use the NSA against US Persons and ignore the FISA law places themselves above the law of the land. Plain and simple.

Posted by: Pale Rider on February 8, 2006 at 9:52 AM | PERMALINK

PR,

Of course. They -- meaning outfits like National Review and PowerLine, which are in the business of providing comforting lies to Bush apologists -- aren't in the business of "understanding the most salient point." (For example, notice how the mouth breathers like to think they made a point by citing Gorelick's invocation of "ihnerent authority," when at the time the FISA law was silent on the issue, but then amended with Clinton's support.) They're in the propaganda business. But that's why their so-called arguments are so pathetic -- they aren't made to withstand the obvious challenges; they're made to provide comoforting fodder for GOP water carriers who will gratefully lap up all the pablum they can dish out.

Posted by: Gregory on February 8, 2006 at 10:13 AM | PERMALINK




 

 

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