March 14, 2006

A Circular Firing Squad

Hatched by Dafydd

A few days ago, brimming with indignation about a clownish assault on the president by liberal to moderate Republicans determined to "distance" themselves from George Bush -- as if voters would admire their "courage" in speaking truth to power -- I made a gloomy prediction:

The GOP had a great chance this year. Normally, the second-term midterm election is very bad for the incumbent party... but this time, the Democrats have been unable to come together on any platform, plan, or campaign theme whatsoever. The Republicans were well poised to maintain their majorities in both the House and Senate.

Until now. It's not that Republicans will vote for Democrats; but with the Congressional GOP attacking and trying to bring down the Republican president, a huge chunk of the Republican electorate may simply decide to stay home -- "a plague on both your houses." Today, if I were betting, I would wager that the Democrats pick up at least ten seats in the House and four or five in the Senate; maybe more. And I'm no longer even sure the Republicans deserve the majority anyway. Thanks, Mr. Stupid.

Bah. I should know better than to rely upon the Democrats to grab the bull by the tail and look the facts in the face. Whenever I stray from my normally sunny optimism and sink into pessimistic near-despair, I turn out to be wrong: optimism is not just healthier, it's actually a better model of the universe!

In fact, it took the Democrats less than a week to find a way to kneecap themselves, returning us to the electoral status-quo ante... especially given the speed with which the Bush administration strong-armed the Prime Minister of Dubai to offer the Big Lizards modest proposal of inserting an American intermediary in between the United Arab Emirates and control of terminal operations at six American ports.

With the combination of Bush's alacrity in staunching the bloodflow and the Democrats renewed determination to lose at any cost, I think we're back on track for an election of zero movement: a couple of seats here or there, going perhaps either way -- and then everything resumes its preset orbit in Congress. Here are the signs of the Derangement Party's electoral death-wish:

  • Joe Biden (D-DE) dives over the Murtha cliff;
  • Russell Feingold (D-WI) lunges for the censure chimera;
  • John Conyers (D-MI) fires blindly for the impeachment jackpot.

First, "Slow" Joe Biden (as Hugh Hewitt calls him) has begun loudly demanding that we pull out of Iraq if we haven't won in the next six months. Heck, even the soldiers in Zogby's poll gave us a year!

Six months is, as I recall, the same timeframe that Rep. John Murtha (D-PA) suggested for "redeploying" ourselves "over the horizon" from Iraq (I guess that would be to Iran, Saudi Arabia, Syria, or Turkey), hoping to turn victory into Vietnamesque defeat... so Biden is not exactly being Mr. In-Between here (nor is he "Ac-Cent-Tchu-Ate"-ing the positive).

The U.S. should pull troops from Iraq after this summer if the political conditions in the country do not improve, the top Democrat on the Senate Foreign Relations Committee said Sunday.

By "after this summer," I conclude he means September: just six months. Biden added the following, evidently blissfully unaware that the Iraqis voted in a constitution back in October:

Sen. Joseph Biden of Delaware, who is aiming for the 2008 presidential race, said the Iraqis must have a constitution that unites fighting factions of the society or "it's game over."

I guess we now know what Joe doesn't know. Say, Joe, what do you know?

Feingold is a weirder case. Like most senators, he is a lawyer (Harvard Law, 1979); and even though he only practiced for three years before tumbling into his endless political career, he should certainly know better than to refer to the NSA al-Qaeda intercept program as "[Bush's] unlawful authorization of wiretaps of Americans within the United States." CNN can only gaze in silent envy at Feingold's economy of conspiracy-mongering.

The senator attempts to conjure the image of the Rev. Martin Luther King, jr. being wiretapped by the FBI for speaking truth to -- oh, wait, I already used that one. "I can call spirits from the vasty deep!" declares Russell Feingold.

Instead, the NSA program more resembles the "Magic" program, the codeword for the decryption of the Japanese military code before we entered World War II.

Feingold was roundly dissed by the rest of the Democratic caucus, who one and all became extraordinarily absorbed with other business when Sen. Feingold tried to drum up support for "censuring" Bush. The only previous president who was ever censured was Andrew Jackson in 1834, for yanking the federal lettuce out of the Whig bank, as I understand it.

And naturally, given his "druthers," Rep. Conyers has to go Feingold "one louder": Conyers is pushing for out and out impeachment of the president, though he hasn't quite figured out the grounds yet. From the AP story:

In the House, Rep. John Conyers of Michigan, the top Democrat on the House Judiciary Committee, is pushing legislation that would call on the Republican-controlled Congress to determine whether there are grounds for impeachment.

I can just hear Conyers now, gesturing at Robert Byrd's dogeared copy of the Constitution: "Help me out, guys... there's gotta be something in there about talkin' Texan being a high crime or misdemeanor!"

Oh yes, that's just what Americans want... another impeachment battle! During wartime! Even Markos Moulitsas Zúniga of the Daily Kos cringed when impeachment was raised at a recent blogger-con.

Just when you think the Democrats will finally pick up the ball and run with it, they pull off an incredible, fifty-yard reverse lateral instead. What a difference a week makes.

Hatched by Dafydd on this day, March 14, 2006, at the time of 5:19 AM

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Comments

The following hissed in response by: Rovin

While doing a search today (in the New York Times)for "Fiengolds Follies", an interesting suggestion came up in the search engine:

"Search under Paid Death Notices"

http://rovinsworld.blogspot.com/2006/03/russell-feingoldrip.html

The above hissed in response by: Rovin [TypeKey Profile Page] at March 14, 2006 7:46 AM

The following hissed in response by: Robert

Unbelievable!!

The President breaks the law, the Republican Congress goes into full partisan mode (surprise) to support GWB, and the Democrats get scared they might hurt someone's feelings if they actually do their job.

Great. Now neither of these useless parties represents me.

Ice cream: 31 flavors
Television: 245 Channels
Political Parties in the US: 1.5 (Republicans and republicans-Lite)

The above hissed in response by: Robert [TypeKey Profile Page] at March 14, 2006 8:35 AM

The following hissed in response by: Dafydd ab Hugh

Robert:

The President breaks the law....

What makes you think Bush broke the law? Can you cite caselaw that shows the NSA program is illegal?

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 14, 2006 12:27 PM

The following hissed in response by: Dafydd ab Hugh

Robert:

I'm sorry, you answered a different question than what I asked. I asked you for caselaw to support your assertion.

The question you appear to have answered was "would you please shout your assertion more emphatically?"

In a country governed by rule of law, such as the United States, the guilt or innocence of anyone accused of a crime is determined by a court of law. Those courts decide for the most part based upon caselaw, also called common law: they look at past similar cases and see how the law was interpreted back then.

There in fact have been numerous similar cases of past presidents ordering various kinds of surveillance "without judicial oversight and approval," including some decided after FISA was enacted.

In order to conclude that this is an "unlawful action," you have to show cases where a court determined that something similar to what President Bush did was unlawful. That is what I meant by asking you to "cite caselaw that shows the NSA program is illegal." That is what those words mean.

There is an old legal saying: when the facts are against you, pound on the law; when the law is against you, pound on the facts. When both are against you -- pound on the table!

It's not enough for you to pound on the table and insist that Bush is guilty, Robert. I insist you back it up with actual caselaw... and also that you respond to the numerous controlling precedents where the courts have, in fact, come to precisely the opposite conclusion as yours, in cases involving similar facts and previous presidents (and even the current president in the Hamdi case): they have found that the president has inherent power under Article II of the Constitution to surveille without judicial warrant in some circumstances, and also that the AUMF enacted by Congress gives him similar authority.

John Hinderaker at Power Line has a good analysis or those past cases. You can begin there.

Until you can do as well for your side, your opinion is worthless... no matter how loudly you pound.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 14, 2006 3:01 PM

The following hissed in response by: cdquarles

Robert,

Go troll someplace else. Nothing policy wise Murtha said about Iraq was correct. The Cheney quote refers to reconstituted nuclear weapons programs, the truth of which has emphatically been affirmed by Qaddafi's relinquishing his nuclear weapons programs. I suggest you read Iraq The Model instead of left wingnut talking points.

Given the incompetence of Democrat politicians in LA, the Katrina response was as good as it could have been and was faster than any previous major hurricane landfall where massive flooding complicated response. Robert, if it had been you in that spot, I seriously doubt *you* would have done better. I ask you, Robert, if you have ever had write and implement a disaster plan knowing that no plan survives contact with a real disaster. No president is G-d, Robert, and neither is *any* government G-d. Personally, I'd get rid of FEMA altogether and let Wal-Mart, Halliburton, and the military handle disaster planning.

"I'm not afraid of Hinderaker's degree. I have 98.6 of 'em myself." And we know that your 98.6 degrees have a null value.

The above hissed in response by: cdquarles [TypeKey Profile Page] at March 14, 2006 4:15 PM

The following hissed in response by: Dafydd ab Hugh

Robert:

I'm not afraid of Hinderaker's degree. I have 98.6 of 'em myself.

Robert, you're still allowed to post comments here even if you don't have a college degree. But you don't have the right either to call someone a criminal or to claim that someone else is a liar without having someone demand, even querulously, that you back up such extreme charges with something other than table-pounding.

The first thing you need to understand is that mere disagreement is not the same as lying. Just because John disagrees with your position doesn't mean you can call him a liar, which you just did.

Just as I wouldn't call you a liar, just because you disagree with John. And the courts.

So long as you continue to obey the comment rules, which you have for the most part, with one exception (see the PS), nobody will stop you from posting comments. But don't expect a free ride on responses, friend.

CDQuarles has already answered your points. I will add that, as to the Cheney quote, I was listening live at the time, and there is no question he was talking about Hussein having "reconstituted" Iraq's nuclear weapons program, and he simply misspoke.

It was obvious from context. And there is one other clue: there is no such thing as a "reconstituted" nuclear weapon. Most persons of at least average intelligence who heard the actual exchange understood that the sentence you quoted referred to the program -- as indeed did every other sentence in that same response.

In charity, I'll assume you never actually heard the interview or read a transcript, that you just got the line off Daily Kos or DU or Juan Cole, or whatever site you lift your talking points from (perhaps even Josh Marshall's Talking Points Memo!) So maybe you didn't know.

But in the future, if you don't want to make a fool of yourself, you should go to the source and see what was really said. Just advice; you can accept or ignore it as you will.

Dafydd

P.S. One thing we do not allow here, at least when we notice it, is deliberate mangling of the names of people commenting here on Big Lizards -- and especially of the proprietors, who are more equal than the other animals. My name is not "Daffy D," nor is it "David." Please don't do it again, if you want your posts to remain.

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 14, 2006 4:37 PM

The following hissed in response by: Dafydd ab Hugh

Robert:

Sorry for the name mangling. It really was unintentional (I didn't even realize I was responding to the same person).

No problem!

As for backing up with facts, not opinions: Would you let GWB post his quote about not asking for permission to protect American's here?

The president has the same permission to post here as anyone else. Does he have a TypeKey account?

You are also encouraged to post the actual quotation yourself. Again, I remember the speech (it was in his standard stump speech for months), and it was pretty clear to me that Bush meant he would never ask permission from other countries for America to defend itself -- as you noted, it was in response to Kerry intimating that we shouldn't have invaded Iraq without seeking United Nations approval first.

I was unconfused. Bush did not mean by that statement that he would ignore the constitutal doctrine of federalism, which is the law of the land, and would just ride roughshod over American elected officials because he disagreed with them.

In other words, Bush gives more deference to the lawfully elected Democratic governor of Louisiana than he does to French President Jacques Chirac. And I'm very glad of that!

The federales literally do not have the authority to send troops into Louisiana (or any other state) without the governor's permission, unless the state is in actual rebellion or a state of anarchy. Similarly, military troops cannot be used to enforce civilian laws (same exceptions as above), because of the posse comitatus law.

All that FEMA can do is offer assistance; it cannot force a state to accept it. If the governor refuses -- or in the case of Kathleen Babineaux Blanco, if she simply blanks out, freezes, and cannot make a decision, which even New Orleans Mayor Ray Nagin says is what happened -- there simply is nothing the president can do about it. That's the way our government is constructed.

We are a nation of laws, and Bush has scrupulously obeyed the law. He obeyed the law in the case of the NSA al-Qaeda intercept program, following the rulings of numerous controlling legal authorities that he had the legal power to order certain types of surveillance without a court warrant.

And he obeyed the law in the case of Hurricane Katrina, offering all the help that was available but leaving the deployment decisions up to Mayor Nagin and the aptly named Gov. Blanco.

But the very same people who earlier blasted him for supposedly exceeding his authority (Sen. Harry Reid, D-NV, for example) turned on a dime and assailed him for not exceeding his authority!

Why don't you make up your mind? Or at least supply a list of occasions where you don't want the president to act like a dictator, and another list of occasions where you do want him to act like a dictator. I think we would all be less confused.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 14, 2006 6:08 PM

The following hissed in response by: KarmiCommunist

A Circular Firing Squad

Count me out of that Firing Squad.

However, i will be Voting *AGAINST* anyone or anything that looks like a Democrat (or Liberal) in 2006 and 2008...and beyond, until the Democrat Party is history.

A Circular Firing Squad

Heck, at best, some 99% of such a firing squad would be killing themselves, and 1% of the bullets would end up in the post. Blind-fold me, and tie me to the post...now, fire away!!!

The above hissed in response by: KarmiCommunist [TypeKey Profile Page] at March 14, 2006 6:16 PM

The following hissed in response by: matoko kusanagi

gloomy matoko says Dubai chooses Airbus.
>:-(

The above hissed in response by: matoko kusanagi [TypeKey Profile Page] at March 14, 2006 7:56 PM

The following hissed in response by: DG

Just a few comments about the legality of the NSA spying program. I don't understand why it is insufficient to cite the law that is broken to prove the illegality of the program. Why does one have to cite specific cases in which the law was found to be violated? Perhaps this is the first instance that the law was violated? Does that mean that there is no such law until it is brought to court? In that case, it follows that Bush SHOULD be brought to court and tried to see if he broke the law.

Also, I read that Hinderaker article, and it contained many comments that just boggled my mind. He says "Obtaining a FISA warrant would require a matter of days, at least, and perhaps much longer. " That's patently untrue since the government can seek a warrant 72 hours AFTER starting surveillance, and thus speed is not an issue. And if speed is not an issue, then why break the FISA law at all, except because you hold constitutional limitations in contempt?

Finally, you mention that the President and the Congress are co-equal branches of government, and yet the President has repeatedly gone over the heads of Congress and refused to even allow them to know about his most controversial programs. What gives him the right to unilaterally decide how to run the country and ignore the other branches of government?

The above hissed in response by: DG [TypeKey Profile Page] at March 14, 2006 8:22 PM

The following hissed in response by: DG

Also, with regards to the Truong opinion, it was given in August 1978, and FISA was passed in October 1978, which means that FISA overrides the Truong opinion, because the Truong opinion was made in the context of a legal system in which there was no prohibition against warrantless wiretapping against American citizens until FISA. However, once FISA was passed, the Truong opinion became invalid.

The above hissed in response by: DG [TypeKey Profile Page] at March 14, 2006 9:01 PM

The following hissed in response by: Diffus

Some questions for the anti-Bush crowd.

Is a warrant required for any electronic surveillance of a U.S. person? If yes, lease cite the statute or case law supporting that position.
If you believe that the President Bush's use of the NSA violates the law in this regard, are you also prepared to acknowledge the illegality of the actions of every U.S. president who has authorized similar activities?

Please cite the appropriate sections of the applicable law that you believe that the NSA program violates.

The AUMF gave the president the authority to use all "necessary and appropriate force" against those parties who planned and caried out the Sept. 11 attacks. If there is an exception to that authorization that precludes the interception of communications to or from those parties, that exception must be inferred, as it is not explicitly stated. That being the case, might I ask those who object to the NSA surveillance program what other unwritten exceptions the authorization contains? Did Congress really mean "all necessary and appropriate force exept for some things that we're not going to tell you about so we can ambush you with them for political gain in a few years"?

Is it reasonable to assume that the AUMF authorizes the U.S. military to launch a Hellfire missile up bin Laden's behind, but it precludes the NSA (a DoD agency) from listening to his phone calls?

In the event that there is a conflict between the president's Article II powers and FISA, which document prevails?

If the NSA program is illegal, are not the members of Congress who have been briefed on it since its inception complcit in the illegality?

The above hissed in response by: Diffus [TypeKey Profile Page] at March 14, 2006 9:13 PM

The following hissed in response by: DG

“Is a warrant required for any electronic surveillance of a U.S. person? If yes, lease cite the statute or case law supporting that position.”

The Fourth Amendment, but I’m sure it will not be enough for you. FISA is pretty clear on this subject, especially in Section 1802(a)(1)(B): “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party”.

“If you believe that the President Bush's use of the NSA violates the law in this regard, are you also prepared to acknowledge the illegality of the actions of every U.S. president who has authorized similar activities?”

Yes.

“Please cite the appropriate sections of the applicable law that you believe that the NSA program violates.”

See above. FISA, Section 1802(a)(1).

“The AUMF gave the president the authority to use all "necessary and appropriate force" against those parties who planned and caried out the Sept. 11 attacks. If there is an exception to that authorization that precludes the interception of communications to or from those parties, that exception must be inferred, as it is not explicitly stated. That being the case, might I ask those who object to the NSA surveillance program what other unwritten exceptions the authorization contains? Did Congress really mean "all necessary and appropriate force exept for some things that we're not going to tell you about so we can ambush you with them for political gain in a few years"?”

This is ridiculous. The AUMF authorized Bush to invade Afghanistan to pursue al-Qaida and the Taliban forces that were harboring Bin Laden’s terrorist organization. They were the ones responsible for 9-11, not Iraq and not ordinary American citizens. Furthermore, Congress specifically denied that the AUMF authorized Bush to circumvent FISA.

“Is it reasonable to assume that the AUMF authorizes the U.S. military to launch a Hellfire missile up bin Laden's behind, but it precludes the NSA (a DoD agency) from listening to his phone calls?”

That is not the issue. FISA permits warrantless eavesdropping on individuals in foreign nations or representatives of foreign governments on American soil. Bush is free to intercept Bin Laden’s telephone calls, but he is not free to spy on the American people without warrants and without oversight and without telling the truth to Congress. (In addition, Bush already changed FISA in the Patriot Act to extend the amount of time needed to get a warrant after surveillance began from 24 hours to 72 hours. He then broke his own law instead of just trying to get it amended further to allow for more time.)

“In the event that there is a conflict between the president's Article II powers and FISA, which document prevails?”

FISA prevails. Article II does not permit the President to break the law. In fact, it says: “he shall take care that the laws be faithfully executed” (Article II, Section 3). He swore to uphold the Constitution, and the Constitution demands that he obey the law of the land.

“If the NSA program is illegal, are not the members of Congress who have been briefed on it since its inception complcit in the illegality?”

Yes, but the problem is that Congress was NOT briefed about it, and those who were given limited information about the NSA program expressed grave misgivings about its legality (e.g. Sen. Jay Rockefeller in July 2003).

The above hissed in response by: DG [TypeKey Profile Page] at March 14, 2006 9:55 PM

The following hissed in response by: Bill Faith

When and if the FISA law ever reaches SCOTUS, any portion of it that presumes to take away powers granted to the President by the U.S. Constitution will be ruled invalid. Pending any such court case I for one am getting very tired of hearing the claim that what the President did is illegal because it may or may not violate FISA.

The above hissed in response by: Bill Faith [TypeKey Profile Page] at March 14, 2006 10:25 PM

The following hissed in response by: Bill Faith

Great post, as usual, Dafydd. I've linked from Feingold gets the finger, from everybody.

The above hissed in response by: Bill Faith [TypeKey Profile Page] at March 14, 2006 10:56 PM

The following hissed in response by: Dafydd ab Hugh

DG:

I don't understand why it is insufficient to cite the law that is broken to prove the illegality of the program.

Because that is circular reasoning: you introduce "the law that was broken" as an a priori assumption... but that is precisely what you are supposed to prove.

Here is the analogy: someone opines that all killing is "illegal." You say, "not true... lawful execution is legal." And he responds, "no, lawful killing violates the law against murder, so it's illegal!"

The cases that John Hinderaker cites are all cases where the president surveilled or wiretapped individuals (American citizens, premanent residents, aliens) without a judicial warrant, and the appellate courts concluded that it was legal for him to do so.

However, once FISA was passed, the Truong opinion became invalid.

That isn't how it works, DG. The Truong decision -- which was decided in 1980, by the way, two years after FISA was enacted -- found constitutional authority in Article II for the president to wiretap without a warrant if the primary purpose was national security, not law enforcement:

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], "unduly frustrate" the President in carrying out his foreign affairs responsibilities.

Because they found constitutional authority for the president to wiretap without a warrant for national-security purposes, that means that Congress cannot simply pass a bill nullifying the president's ability to do so: the Constitution trumps legislation.

To the extent that FISA was found to prevent the president from wiretapping for national-security purposes -- to that extent, FISA itself would be unconstitutional.

But in fact, FISA is smarter than that; it includes a automatic exception for any warrantless wiretapping allowed by statute, and it does not claim to curtail the president's power to conduct foreign policy.

You're simply wrong on the law. The only way you know how a law should be interpreted is to look at previous cases and see how it has been interpreted in the only venue that matters in this respect: the courts.

In the event that there is a conflict between the president's Article II powers and FISA, which document prevails?

FISA prevails.

DG, that is simply risible. The Constitution always trumps legislation, or indeed anything else.

If Congress passed a bill (and the president signed it) saying that there would be no more elections, and all current congressmen and the president would remain in office for life -- do you really think that the courts would uphold that?

Are you old enough to remember what happened to "legislative veto?"

It doesn't matter if a bill is passed after the Constitution was written; the Constitution still triumphs. In fact, it's right in the Constitution itself! Article IV:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Ever since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Supreme Court has held that this means the Constitution is the final arbiter; when a law conflicts with the Constitution, the law is struck down -- the Constitution is not changed.

You can only change the Constitution (formally) by ratifying an amendment, which we have done only twenty-seven times in 217 years (or seventeen times, not counting the Bill of Rights, which were ratified in a lump just after the Constitution was finally ratified). That is about once every ten years (the last time in 1992 -- when we ratified an amendment first proposed in 1789... proposed in the same package as the Bill of Rights).

So no, DG, FISA does not amend the Constitution; it isn't a constitutional amendment. It's just a law... and if a court finds that it curtails the president's constitutional authority to obtain foreign intelligence, then that part of FISA will be struck down by that very decision.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 15, 2006 1:07 AM

The following hissed in response by: DG

“Because that is circular reasoning: you introduce "the law that was broken" as an a priori assumption... but that is precisely what you are supposed to prove.”

But that is ridiculous. A law says that X cannot do Y, and I say that if X did Y, then X broke the law, and you say, “prove it”. All I need to show is that the law is clear that “X cannot do Y” and that X did Y, and then it follows that X broke the law, unless there are other laws that permit him to do so. With regards to Bush’s spying on Americans, FISA clearly prohibits him from spying on Americans, and so unless you can show that there are other statutes that circumvent those areas of FISA that Bush violated, then you must be forced to conclude that he broke the law. Also, this is an issue that must be settled in court, as a previous poster stated, because both sides have legitimate arguments that should be heard in a court of law.

“The cases that John Hinderaker cites are all cases where the president surveilled or wiretapped individuals (American citizens, premanent residents, aliens) without a judicial warrant, and the appellate courts concluded that it was legal for him to do so.”

The cases that he cites are PRIOR to FISA (e.g. United States v. Buck, 548 F.2d 871 (9th Cir. 1977), United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), etc …). The ones that he cites as post-FISA have to do with warrantless spying on foreign agents, not American citizens. And again, THAT is the issue, whether he has the right to spy without a warrant on American citizens. You can cite all the law you want about his inherent right to spy without a warrant on foreign nationals, but it does not speak to the matter at hand.

“To the extent that FISA was found to prevent the president from wiretapping for national-security purposes -- to that extent, FISA itself would be unconstitutional.”

Two points. First, where in the Constitution does the President get the right to break existing laws without judicial or legislative oversight? Article II explicitly states the President’s functions, and they include following the law and being the leader of the armed forces. Second, Bush’s own lawyers at the Department of Justice have found FISA to be constitutional, and FISA says that it is the sole means by which domestic wiretapping can be done, which means that even they accept that he broke the letter of the law. Their only point is the main one that you make; namely, that the President is the supreme power in the country and that he has the inherent authority to bypass the other branches of government and execute legislation in secret and hidden from the oversight of the Congress and the Judiciary.

“You're simply wrong on the law. The only way you know how a law should be interpreted is to look at previous cases and see how it has been interpreted in the only venue that matters in this respect: the courts.”

And what if this is the first instance of a law being broken in a particular way? What if this is the first time that a President has initiated warrantless spying on Americans since Nixon? Then what do you do? Just hold your breath until someone brings the matter to court? Then bring the matter to court.

“If Congress passed a bill (and the president signed it) saying that there would be no more elections, and all current congressmen and the president would remain in office for life -- do you really think that the courts would uphold that?”

You are assuming transparency between the branches, which is what the Founders intended. With this program, there was no transparency. When Bush was shopping around for buyers on this warrantless spying program on Americans, even a cursory examination of the matter led the Senators to balk at supporting it, because they knew that FISA was sufficient, even with the speed objection (e.g. 72 hours). And your example shows how the system is supposed to work, i.e. the different branches serve as checks and balances on one another. Your position is that the President has supreme authority to interpret how he executes the law and which laws he ignores for his own purposes, which is not how American democracy is supposed to work.

“So no, DG, FISA does not amend the Constitution; it isn't a constitutional amendment. It's just a law... and if a court finds that it curtails the president's constitutional authority to obtain foreign intelligence, then that part of FISA will be struck down by that very decision.”

So your basic position is that FISA, if it limits the President’s ability to wiretap Americans without a warrant or without oversight from the other branches of government, is unconstitutional. Bush and his lawyers have NEVER argued that it is. If they had, then that would be an argument worth debating, but they simply broke the law and said it was his executive privilege to basically do whatever he wants if he believes that it is for national security. However, since he has never argued that it is unconstitutional, this is a moot point.

The right-wing position on this issue simply baffles me, to be honest. Clinton was nearly impeached for lying about oral sex whereas Bush has circumvented an established statute, lied about it, tried to hide the truth, and then openly brags about breaking the very law that he himself supported during the immediate post-911 period with the Patriot Act. If you’re going to defend inherent rights, then what about the right of Clinton to his privacy? No right-winger cared about that in the late 1990’s. All they cared about was that Clinton may have broken the law and for that, he must be punished. Bush openly brags about breaking a far more severe law, and right-wingers simply shrug their shoulders are start defending him. Can you explain why there is this double-standard? What if Hillary Clinton started spying on Americans without a warrant? Would you still be holding this position?

The above hissed in response by: DG [TypeKey Profile Page] at March 15, 2006 4:19 AM

The following hissed in response by: Dafydd ab Hugh

DG:

A law says that X cannot do Y, and I say that if X did Y, then X broke the law, and you say, “prove it”. All I need to show is that the law is clear that “X cannot do Y” and that X did Y, and then it follows that X broke the law, unless there are other laws that permit him to do so.

Well, there you are; you came up with an exception yourself: a court would have to decide whether the AUMH was a law that "permit[ted] him to do so."

It would also have to decide whether the FISA law itself was unconstitutional, to the extent that it interfered with the president's ability to gather foreign intelligence.

But before you even get to that point, the court would have to decide whether the person who brought the suit even had standing: you can't just haul the president into court whenever you don't like what he's doing... because every president would be in court every day, and the nation's business wouldn't get done.

Can you prove you were directly harmed by the NSA al-Qaeda intercept program? Can anybody?

Also, this is an issue that must be settled in court, as a previous poster stated, because both sides have legitimate arguments that should be heard in a court of law.

No. Somebody with standing has to bring a case. Or Congress has to vote to investigate; but there is no interest, even among Democrats, to vote for such an investigation now -- since it's become clear to everyone that the president has plenary authority to do just what he did: gather foreign intelligence on al-Qaeda.

The ones that he cites as post-FISA have to do with warrantless spying on foreign agents, not American citizens. And again, THAT is the issue, whether he has the right to spy without a warrant on American citizens.

I don't know how many times I have to say this: FISA cannot alter the Constitution. It doesn't matter whether a case was decided before or after FISA, if the decision turned on the president's Article II powers.

Nor does it matter whether the foreign agents are or are not American citizens: all that matters, according to Truong, is whether the primary purpose of the surveillance is national-security.

Nor do you know whether or how many "American citizens" had their calls or e-mails intercepted. You are arguing from complete ignorance of the facts.

Nor is it the duty of the president to publicly announce these facts -- clearly doing so would irreparably damage national security.

Sorry, DG, but you're out of this loop. We all are.

Second, Bush’s own lawyers at the Department of Justice have found FISA to be constitutional, and FISA says that it is the sole means by which domestic wiretapping can be done, which means that even they accept that he broke the letter of the law.

This is "Philadelphia-lawyer" logic. Bush's lawyers say FISA is constitutional because it doesn't prevent the president from exercising his Article II powers. IF you claim that it does, THEN they would argue that it was therefore unconstitutional.

Second, "domestic wiretapping" doesn't mean wiretapping that happened to occur on U.S. soil; it means wiretapping for domestic, non-national-security related purposes.

What mattered in Truong, the most direct case on the subject, was the purpose of the spying: it had to be primarily for foreign intelligence gathering. From Hinderaker:

The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the "object of the search or the surveillance is a foreign power, its agent or collaborators," and the search is conducted "primarily" for foreign intelligence reasons.

Yet even so, what the 4th actually affirmed was that, notwithstanding that the "object of the... surveillance" was foreign-intelligence gathering, the evidence gathered could nevertheless still be used in criminal prosecutions!

That is what you're up against, DG; the courts are simply wildly against you. It's not even close. The NSA can listen, without a warrant, to a phone call from some al-Qaeda cell in Afghanistan, even if the person on the other end is an American citizen, since they are doing so to prevent another attack... and if the American citizen implicates himself during that call, they can use that recorded implication in any criminal case against him.

At least until and unless the Supreme Court overturns Truong, which doesn't look likely with the current Court.

Their only point is the main one that you make; namely, that the President is the supreme power in the country and that he has the inherent authority to bypass the other branches of government and execute legislation in secret and hidden from the oversight of the Congress and the Judiciary.

You're not listening. Congress has its powers: to make laws. The president has his powers, which include prosecuting the war as commander in chief. The Court has its powers: to adjudicate disputes and rule on the constitutionality of laws passed by Congress and signed by the president.

These powers are equal. Congress cannot take away the president's war-making power, just as the president cannot stop Congress from investigating or enacting legislation (even by overriding a veto).

And what if this is the first instance of a law being broken in a particular way?

Objection, question assumes a fact not in evidence.

With this program, there was no transparency.

Not a requirement. Congress isn't required to keep the president apprised of what goes on in committee debate, either. Tough.

Your position is that the President has supreme authority to interpret how he executes the law and which laws he ignores for his own purposes, which is not how American democracy is supposed to work.

That is exactly and precisely how American democracy is supposed to work. Same with signing statements, same with recess appointements. "Congress proposes, the president disposes."

So your basic position is that FISA, if it limits the President’s ability to wiretap Americans without a warrant or without oversight from the other branches of government, is unconstitutional.

To the extent of his Article II powers, yes; that is quite correct. The FBI can't use warrantless wiretapping if the main purpose is to gather evidence for a drug smuggling case, because that has nothing to do with the president's powers as commander in chief.

...said it was his executive privilege...

Ah ah, let's tell the truth, DG; Bush never asserted "executive privilege" in this case. AG Gonzales straightforwardly argued that the president can order this on the basis of Article II and the AUMF.

The right-wing position on this issue simply baffles me, to be honest.

Since the "right-wing" position is also the courts' position, that is a telling admission against interest, DG.

Clinton was nearly impeached for lying about oral sex whereas Bush has circumvented an established statute, lied about it, tried to hide the truth, and then openly brags about breaking the very law that he himself supported during the immediate post-911 period with the Patriot Act.

This is what I mean by "table pounding." This is simply your fallacious and tendentious recounting of your theory of the case. It bears little resemblance to what actually happened.

(And Clinton was not "nearly impeached," he was impeached.)

Bush did not "circumvent" FISA; the courts have held that he has powers over which FISA has no jurisdiction; and he argues that the AUMF, which was enacted after FISA, also gives him the authority to do this -- which exceptions are allowed by FISA itself.

He did not "lie about it;" you simply made that up.

Of course he "tried to hide" the existence of a top-secret national-security intelligence-gathering operation.... It's a highly classified intelligence-collection program! If Bush didn't hide its existence, that itself might be grounds for impeachment. Yeesh.

And he has never even claimed to be "breaking the... law," let alone bragged about it.

If you’re going to defend inherent rights, then what about the right of Clinton to his privacy?

He has such a right; but Paula Jones has a superior right to subpoena witnesses for her trial.

Do you really assert that anyone subpoenaed at a trial, including the defendant in a civil case, as well as any third-party witnesses, can refuse to testify on the basis of his "right to privacy?" Do you really believe that?

I think you need to take a layman's course in The Law and You.

Can you explain why there is this double-standard?

Yes: it arises from your faulty understanding of the law and the underlying facts, which make it appear to be a "double standard" to you. But not to the courts, and not to Congress... which is why nobody in that body has made any serious moves to stop the program.

Not even Russell Feingold -- who only wants to "censure" Bush for doing it. But even that is going nowhere, losing so badly that the Democrats are desperate for it not even to be brought up.

Here is some more advice: when everyone tells you that you don't look well -- lie down!

What if Hillary Clinton started spying on Americans without a warrant? Would you still be holding this position?

If she were president (a pretty frightening thought!) and she were doing it for national-security purposes, I would say she had that power.

And in fact, I did say her husband had that power when he surveilled American citizens -- without warrants -- in the wake of the 1993 World Trade Center bombing and the subsequent al-Qaeda terrorist attacks on us.

It's obvious... whether the president is Bush, Clinton, Reagan, Carter, or FDR.

And this will likely be my last word in this comment-land debate. It's taking up time I should be using for blogging new posts.

CDQuarles is as capable of arguing this as I, and there are others, too.

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at March 15, 2006 5:26 AM

The following hissed in response by: DG

“Can you prove you were directly harmed by the NSA al-Qaeda intercept program? Can anybody?”

According to Senator Leahy, “Defense officials, according to the letter, have now also completed a nationwide review of the TALON database and identified 186 protests and 43 named individuals in related reports that should not have been entered” (http://leahy.senate.gov/press/200603/030906a.html). In other words, Bush is spying on antiwar protesters who have nothing to do with national security. This was the entire reason that FISA was enacted after Nixon abused his power as President. Furthermore, it does not matter if I was personally harmed by this program. The fact is that SOMEONE was harmed by it unjustly by being compiled into a governmental database and marked as a terrorist suspect or supporter. If that label hasn’t caused those blacklisted individuals harm yet, then just wait …

“No. Somebody with standing has to bring a case. Or Congress has to vote to investigate; but there is no interest, even among Democrats, to vote for such an investigation now -- since it's become clear to everyone that the president has plenary authority to do just what he did: gather foreign intelligence on al-Qaeda.”

Actually, there is an interest in investigating this matter. It is Republicans who do not want to proceed. Pat Roberts refused to allow the Senate Select Committee on Intelligence to investigate whether Bush broke the law with his warrantless wiretapping of American citizens. Do not confuse Democrats wimpy refusal to support Feingold as their refusal to investigate the President. All of them are saying that we must FIRST investigate him and then consider whether a censure or impeachment is in order. Would you support an investigation by Congress in this matter?

“I don't know how many times I have to say this: FISA cannot alter the Constitution. It doesn't matter whether a case was decided before or after FISA, if the decision turned on the president's Article II powers.”

Where specifically in the Constitution does it permit the President to break the law of the land and to ignore Congress for the sake of his interpretation of national security? The Constitution demands a partnership between the President and Congress. Yes, the President is Command-in-Chief of the armed forces, but only Congress can declare war (Article I, Section 8). Yes, the President can make treaties, but only with 2/3 support of the Senate (Article I, Section 2). When Bush decided to hide this program from congressional oversight, he violated the Constitution, period.

“Nor does it matter whether the foreign agents are or are not American citizens: all that matters, according to Truong, is whether the primary purpose of the surveillance is national-security.”

United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980). That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power. In approving the district court’s exclusion of evidence obtained through a warrantless surveillance subsequent to the point in time when the government’s investigation became “primarily” driven by law enforcement objectives, the court held that the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.” Id. at 915. Targets must “receive the protection of the warrant requirement if the government is primarily attempting to put together a criminal prosecution.” Id. at 916. Although the Truong court acknowledged that “almost all foreign intelligence investigations are in part criminal” ones, it rejected the government’s assertion that “if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.” Id. at 915. So, no, Truong does not support warrantless wiretapping of American citizens, but rather the opposite.

“Nor is it the duty of the president to publicly announce these facts -- clearly doing so would irreparably damage national security.”

He does not have to publicly announce the details of the program to the world, but at least provide the details to Congress for oversight purposes.

“That is what you're up against, DG; the courts are simply wildly against you. It's not even close. The NSA can listen, without a warrant, to a phone call from some al-Qaeda cell in Afghanistan, even if the person on the other end is an American citizen, since they are doing so to prevent another attack... and if the American citizen implicates himself during that call, they can use that recorded implication in any criminal case against him.”

I disagree. FISA provides procedures for surveillance without court orders. Such surveillance, however, must be "solely directed" at gathering intelligence from "foreign powers" and there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." Section 1802(a). How much more clear does this have to be? The surveillance cannot acquire the CONTENTS OF ANY COMMUNICATION TO WHICH A UNITED STATES PERSON IS A PARTY. They cannot use the contents of a conversation in which an American citizen is involved, which is why legal scholars are condemning the program as inevitably making criminal investigations impossible, because the key evidence will likely be thrown out of court.

“You're not listening. Congress has its powers: to make laws. The president has his powers, which include prosecuting the war as commander in chief. The Court has its powers: to adjudicate disputes and rule on the constitutionality of laws passed by Congress and signed by the president. These powers are equal. Congress cannot take away the president's war-making power, just as the president cannot stop Congress from investigating or enacting legislation (even by overriding a veto).”

Sure, I am.  And I agree with your above statements.

“Objection, question assumes a fact not in evidence.”

You’re kidding me. Is it an established fact in evidence that al-Qaida is currently telephoning American citizens? Rather, the program is in place IN CASE such a likely situation will occur. However, the likelihood of a hypothetical event is still not “a fact in evidence” as you like to say. So, you cannot begrudge me the use of hypothetical situations, especially when I am trying to use them to understand your point that a prohibitive law is not really real until it is brought to the court’s attention. So, it is not illegal to murder a baby while wearing a pink hat and purple underwear, because you cannot show me a specific statute that prohibits that exact situation. But that’s ridiculous, so we should just stick to what the law clearly prohibits.

“Not a requirement. Congress isn't required to keep the president apprised of what goes on in committee debate, either. Tough.”

True, but if he requests it, then the records should be provided. How many times has Congress demanded that the White House release information only to be stonewalled by the Bush administration? Is that conducive to good government?

“This is what I mean by "table pounding." This is simply your fallacious and tendentious recounting of your theory of the case. It bears little resemblance to what actually happened.”

Not at all. It is called a reductio ad absurdum in which one takes a series of premises and ends up in a contradiction, thus requiring the rejection of the premises. My point in bringing up Clinton was that he was hounded and investigated with a savage fury all because of his private sexual life. It is telling that Republicans will not muster a similar gusto and enthusiasm to investigate the possible constitutional violations of Bush. They do not even want to investigate the matter! And that is what harkens cries of hypocrisy, because if they truly believed in the law and the constitution, then they would at least investigate the matter.

“(And Clinton was not "nearly impeached," he was impeached.)”

Only by the House. The Senate rejected it, and you require both the House and the Senate for full impeachment.

“Bush did not "circumvent" FISA; the courts have held that he has powers over which FISA has no jurisdiction; and he argues that the AUMF, which was enacted after FISA, also gives him the authority to do this -- which exceptions are allowed by FISA itself.”

Again, you have not shown me a single instance in which the Constitution states that the President can unilaterally break the law for the sake of national security. Until you can provide me with this evidence, your entire argument is moot.

“He did not "lie about it;" you simply made that up.”

You’re kidding. So when he went on national television and told the American public that whenever the government listens to their phone conversations, there MUST be a warrant, then he was not lying? This isn’t even about whether he lied about the WMDs, which is arguable. He clearly and knowingly stated an untruth. If that is not LYING, then what is?

“He has such a right; but Paula Jones has a superior right to subpoena witnesses for her trial.”

Good point.

“Yes: it arises from your faulty understanding of the law and the underlying facts, which make it appear to be a "double standard" to you. But not to the courts, and not to Congress... which is why nobody in that body has made any serious moves to stop the program.”

Of course they have! There is a bipartisan agreement that the matter should be investigated, but Pat Roberts unilaterally declared that it will not occur.

“And in fact, I did say her husband had that power when he surveilled American citizens -- without warrants -- in the wake of the 1993 World Trade Center bombing and the subsequent al-Qaeda terrorist attacks on us.”

Well, then I apologize. I applaude your consistency on the subject.

The above hissed in response by: DG [TypeKey Profile Page] at March 15, 2006 3:16 PM

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