(POL) Federal Judge orders end to NSA Wiretapping program

[SirFozzie]

Interesting. I dont think it will change anything, that either they'll delay it by appealing through the courts until the matter is moot, or just move it deeper underground.

Also, be prepared for a new round of "Librul activist judges" bashing coming.

The warrantless Internet and telephone surveillance program authorized by the Bush administration violates the U.S. Constitution and must cease immediately, a federal judge ruled Thursday.

The landmark decision makes U.S. District Judge Anna Diggs Taylor in Detroit the first judge to strike down the National Security Agency's once-secret program. The American Civil Liberties Union had filed suit against the government, claiming the program "ran roughshod" over the constitutional rights of millions of Americans and ran afoul of federal wiretapping law.

"Plaintiffs have prevailed, and the public interest is clear, in this matter. It is the upholding of our Constitution," the judge wrote in her 44-page opinion

http://i.a.cnn.net/cnn/2006/images/08/17/nsa.lawsuit.pdf

[SirFozzie]

Wow, it gets even better, from CNN:

The defendants "are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program (TSP) in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III," she wrote.

She further declared that the program "violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III."

She went on to say that "The president of the United States ... has undisputedly violated the Fourth in failing to procure judicial orders."

The lawsuit, filed January 17 by civil rights organizations, lawyers, journalists and educators, "challenges the constitutionality of a secret government program to intercept vast quantities of the international telephone and Internet communications of innocent Americans without court approval."

The judge rejected the government's argument that the program is within the president's authority, according to the AP

[st.cronin]

The courts have made their decision. Now let them enforce it.

[SirFozzie]

The courts have made their decision. Now let them enforce it.


yeah, but having a federal judge saying that will give new life to the folks who consistently call for Bush's impeachment.

Gives the conservative base a boost of energy, I believe, for the midterm elections

[Farrah Whitworth-Rahn]

yeah, but having a federal judge saying that will give new life to the folks who consistently call for Bush's impeachment.

Gives the conservative base a boost of energy, I believe, for the midterm elections

Except that the UK's version of the NSA program was what stopped the terrorist attack last week. If anything, it proved the program works, and therefore should continue.

[JPhillips]

Except the UKs version required warrants.

[Farrah Whitworth-Rahn]

Except the UKs version required warrants.

As does this one. ;)

[MrBigglesworth]

As does this one. ;)
The whole problem with Bush's program is that it doesn't use warrants.

[Farrah Whitworth-Rahn]

The whole problem with Bush's program is that it doesn't use warrants.

Really? Hmm. I guess you're taking the position this program is outside the scope of FISA, whereas I do not.

[molson]

Someone posted last week about how they've been come apathetic and indifferent to airport security and its importance. I feel the same way about domestic spying. I'm pretty sure George W. Bush didn't innovate the concept. Our government has most certainly spied on communists, anarchists, atheists, militias, whatever. The only practical limitation has been the technology available at the time. Our system has done a very good job of keeping knowledge gained through such spying out of criminal courtrooms.

[SirFozzie]

And guess what, I'm right!

Headline on CNN:


The U.S. Department of Justice has announced that it will appeal a federal judge's ruling that the government's warrantless wiretapping program is unconstitutional.

[Honolulu_Blue]

Really? Hmm. I guess you're taking the position this program is outside the scope of FISA, whereas I do not.

If the program was within the scope of FISA, wouldn't those wiretaps require FISA court authorization? Wasn't that the argument, that the reason the administration did not use the FISA courts to get authorization was because it would be too cumbersome or some such?

I thought the administration argued that FISA was an unconstitutional violation of the Presidents inherent powers.

I will admit, I am not expert on this subject, I just find the comment a bit confusing based on my understanding of the issues.

[MrBigglesworth]

Really? Hmm. I guess you're taking the position this program is outside the scope of FISA, whereas I do not.
FISA requires a warrant too. I'm confused by what you mean.

[MrBigglesworth]

Someone posted last week about how they've been come apathetic and indifferent to airport security and its importance. I feel the same way about domestic spying. I'm pretty sure George W. Bush didn't innovate the concept. Our government has most certainly spied on communists, anarchists, atheists, militias, whatever. The only practical limitation has been the technology available at the time. Our system has done a very good job of keeping knowledge gained through such spying out of criminal courtrooms.
Courtrooms aren't the only places where these do harm. The biggest area that could be abused is in spying on enemies of the President, whether that be the opposition party or the journalists investigating him.

[molson]

Courtrooms aren't the only places where these do harm. The biggest area that could be abused is in spying on enemies of the President, whether that be the opposition party or the journalists investigating him.

Agreed, and if the Supreme Court ever finds the practice unconstitutional, the spying will simply be done more secretly.

Localized spying, of a finite and limited number of individuals is really easy when you're president, Constitution or no Constitution.

I'm not disagreeing with your objections - I just think there's little practical relevance here, the motivation is politics.

[Subby]

Farrah's contract requires that she support the administration here, so let's at least give her props for trying. :)

[Farrah Whitworth-Rahn]

If the program was within the scope of FISA, wouldn't those wiretaps require FISA court authorization? Wasn't that the argument, that the reason the administration did not use the FISA courts to get authorization was because it would be too cumbersome or some such?

I thought the administration argued that FISA was an unconstitutional violation of the Presidents inherent powers.

I will admit, I am not expert on this subject, I just find the comment a bit confusing based on my understanding of the issues.

I don't pretend to be an expert either, and I'm just going off my understanding of the analysis presented on this issues.

FISA permits survelance for up to 72 hours without obtaining a warrant through the FISA court. They must give notice to the court at the end of the 72 hours.

My understanding is that the Bush Administration is claiming that since the phone calls they intercepted didn't last past 72 hours, there was no need to go to the court for a warrant.

This program falls within the scope of the FISA law (signed by Jimmy Carter), but under the rules of that program, warrants weren't necessary.

[Farrah Whitworth-Rahn]

Farrah's contract requires that she support the administration here, so let's at least give her props for trying. :)

Nice try Subby. Maybe if you knew me a little better that might hold some water. :)

[MrBigglesworth]

My understanding is that the Bush Administration is claiming that since the phone calls they intercepted didn't last past 72 hours, there was no need to go to the court for a warrant.
If that is the legal reasoning, it's no wonder they lost the case in Federal court.

f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—
(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and
(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title.
FISA clearly states that if they authorize emergency surveillance, they have to inform a judge AND they have to apply for a warrant. Since you agree that the program is under FISA, we can both now agree that the program is unlawful.

[Honolulu_Blue]

I don't pretend to be an expert either, and I'm just going off my understanding of the analysis presented on this issues.

FISA permits survelance for up to 72 hours without obtaining a warrant through the FISA court. They must give notice to the court at the end of the 72 hours.

My understanding is that the Bush Administration is claiming that since the phone calls they intercepted didn't last past 72 hours, there was no need to go to the court for a warrant.

This program falls within the scope of the FISA law (signed by Jimmy Carter), but under the rules of that program, warrants weren't necessary.

I haven't heard that line of argument. Is that really what the administration is saying? If so, it's completely retarded and would get laughed out of pretty much any court. I am pretty sure that survelance begins and ends from the moment the tap is placed, regardless of the lenght of any one (or more) phone calls. Then again, maybe not. I certainly wouldn't put it past these clowns trying to push such an argument. We've seen worse (and will likely again).

I really thought their official view was the FISA just wasn't workable. That it didn't offer them enough "agility" to effectively go after the bad guys and all. Or that FISA was unconstitutional. Neither of which are really all that convincing either.

[Subby]

I have to apologize - I just read through all of your political posts here and your blog stuff for Cam and now I feel like an idiot.

Sorry for labeling you.

[flere-imsaho]

My understanding is that the Bush Administration is claiming that since the phone calls they intercepted didn't last past 72 hours, there was no need to go to the court for a warrant.

That wasn't my understanding. My understanding was that the Bush Administration claimed that it had a right, due to a "war setting" to ignore FISA.

[Farrah Whitworth-Rahn]

I have to apologize - I just read through all of your political posts here and your blog stuff for Cam and now I feel like an idiot.

Sorry for labeling you.
Fuck you. That's not an apology.

I should have known better than to wander into a political thread here.

[Farrah Whitworth-Rahn]

If that is the legal reasoning, it's no wonder they lost the case in Federal court.


FISA clearly states that if they authorize emergency surveillance, they have to inform a judge AND they have to apply for a warrant. Since you agree that the program is under FISA, we can both now agree that the program is unlawful.

I don't know if that's the legal reasoning argued in court, I haven't read the transcripts.

And no, I won't agree that the program is unlawful. You know as well as I do Biggles that many things can modify the meaning of the original act - court cases after the enactment of the law, congressional orders etc. I'm not prepared to agree to anything without looking at all of it. :)

[Farrah Whitworth-Rahn]

I haven't heard that line of argument. Is that really what the administration is saying? If so, it's completely retarded and would get laughed out of pretty much any court. I am pretty sure that survelance begins and ends from the moment the tap is placed, regardless of the lenght of any one (or more) phone calls. Then again, maybe not. I certainly wouldn't put it past these clowns trying to push such an argument. We've seen worse (and will likely again).

I really thought their official view was the FISA just wasn't workable. That it didn't offer them enough "agility" to effectively go after the bad guys and all. Or that FISA was unconstitutional. Neither of which are really all that convincing either.

I have seen that argument from admin officials, yes. Though like I said I don't know if that's what they argued in court.

[st.cronin]

Fuck you. That's not an apology.

I should have known better than to wander into a political thread here.

VOTE FARRAH

[MrBigglesworth]

I don't know if that's the legal reasoning argued in court, I haven't read the transcripts.

And no, I won't agree that the program is unlawful. You know as well as I do Biggles that many things can modify the meaning of the original act - court cases after the enactment of the law, congressional orders etc. I'm not prepared to agree to anything without looking at all of it. :)
You said that you "don't pretend to be an expert either, and [are] just going off [your] understanding of the analysis presented on this issues." Have you come across any presented analysis that gave any court cases, congressional orders, etc., that would make the plain text of FISA irrelevant?

As to your original point, I believe the UK was tipped off to the plot by a human source, then followed that up with taps authorized by their form of warrants, a program that not a single person has a problem with. So while the UK case does provide an example of the benefits of eavesdropping, it does not provide an example of the benefits of warrantless eavesdropping, ie, the NSA program.

[Honolulu_Blue]

As to your original point, I believe the UK was tipped off to the plot by a human source, then followed that up with taps authorized by their form of warrants, a program that not a single person has a problem with. So while the UK case does provide an example of the benefits of eavesdropping, it does not provide an example of the benefits of warrantless eavesdropping, ie, the NSA program.

Agreed.

I know a lot of conservatives are running around right now squawking about how stopping this terrorist attack supports the administration's wiretap program, but it really doesn't. At all.

In fact, doesn't it sort of prove that a constitutional wiretapping program (i.e., authorized by a warrant) can be and, indeed, is, an effective way to combat terrorism?

[digamma]

If anything, it proved the program works, and therefore should continue.

I don't think you really mean this as a therefore, do you? There are a lot of things that may be effective in preventing terrorism or achieving other govermental or societal goals. That doesn't mean they're constitutional.

[JonInMiddleGA]

http://www.fjc.gov/servlet/tGetInfo?jid=2345
Taylor, Anna Katherine Johnston Diggs
Nominated by Jimmy Carter on May 17, 1979

http://www.daahp.wayne.edu/biographiesDisplay.asp?id=64
Taylor became active in politics, helping Coleman Young in his 1973 campaign and Jimmy Carter in his 1976 victory.

Now I just can't imagine why on earth would anybody suspect this woman of liberal activism.

[Honolulu_Blue]

http://www.fjc.gov/servlet/tGetInfo?jid=2345
Taylor, Anna Katherine Johnston Diggs
Nominated by Jimmy Carter on May 17, 1979

http://www.daahp.wayne.edu/biographiesDisplay.asp?id=64
Taylor became active in politics, helping Coleman Young in his 1973 campaign and Jimmy Carter in his 1976 victory.

Now I just can't imagine why on earth would anybody suspect this woman of liberal activism.
Have you read the opinion? Have you read any of Judge Taylor's opinions?

[MrBigglesworth]

Have you read the opinion? Have you read any of Judge Diggs' opinions?
She's a black woman that campaigned for Jimmy Carter. What more evidence do you need that she is on the side of the terrorists?

[Subby]

Fuck you. That's not an apology.
Take it easy there, Schlafly, I was just teasing.

[JPhillips]

Jon: I'll go along with that if it also means that Roberts, Scalia, Alito and Thomas are given the same level of criticism when they rule in favor of Republicans.

[Honolulu_Blue]

Jon: I'll go along with that if it also means that Roberts, Scalia, Alito and Thomas are given the same level of criticism when they rule in favor of Republicans.

It's not so much the criticism as it is an example of what passes for political "discourse" today. If someone doesn't agree with your opinion you just toss out some partisan buzzword (like "activist judges") without actually taking the time to try to really understand the facts or anything else for that matter.

I haven't read the opinion, so I don't know what to make of it, but I have read a few legal articles on the subject and pretty much all of them agreed that the program was unconstitutional.

[Vinatieri for Prez]

Man, this subject was beaten dead 4 horses ago. It's warrantless, in violation of FISA and the Constitution, and now a court says so. Moving on here.

[SackAttack]

Charles Barkley had a quote that I used to think was just funny; now I'm finding some personal relevance in it.

"I used to be a Republican, until they lost their minds."

After listening to the sheer hatred and vitriol for Judge Taylor and the New York Times on talk radio over this decision, I think I'm in that camp.

Hey, Bucc, got any room on the Libertarian bus?

[flere-imsaho]

Jon: I'll go along with that if it also means that Roberts, Scalia, Alito and Thomas are given the same level of criticism when they rule in favor of Republicans.

That was exactly my first thought.

[Glengoyne]

She went on to say that "The president of the United States ... has undisputedly violated the Fourth in failing to procure judicial orders."

Well that just seems to scream impartiality, don't it. That said. This had to happen. Now we can all sit back with our popcorn and watch the show.

[Crapshoot]

Well that just seems to scream impartiality, don't it. That said. This had to happen. Now we can all sit back with our popcorn and watch the show.

She's a judge Glen - if he violated the law, is she supposed to pretend he didn't ? Seriously ?

[Honolulu_Blue]

Well that just seems to scream impartiality, don't it. That said. This had to happen. Now we can all sit back with our popcorn and watch the show.

Huh?

Fact 1:
Issuing warantless wiretaps is a violation of The Fourth Amendment.

Fact 2:
The President authorized warrantless wiretaps.

The Conclusion that logic demands:
The President violated the Fourth Amendment.

That's logic, my man, not partiality. Though in this day and age folks just cant (or wont) see the difference when the cookie don't crumble their way.

[JonInMiddleGA]

If this is so obviously unconstitutional as some seem to like to cry, then why are legal experts predicting that yesterday's ruling will be overturned?

http://www.freep.com/apps/pbcs.dll/article?AID=/20060807/NEWS05/608070381/1001/NEWS
"Given the composition of the 6th Circuit and its previous rulings in related areas, it seems more likely to favor national security over civil liberties if that issue is squarely presented," said Carl Tobias, a law professor at the University of Richmond in Virginia. "And that's what this case is all about."

That's the ending of an otherwise fairly pro-Taylor article in the Detroit Free Press, btw.

[Honolulu_Blue]

If this is so obviously unconstitutional as some seem to like to cry, then why are legal experts predicting that yesterday's ruling will be overturned?

http://www.freep.com/apps/pbcs.dll/article?AID=/20060807/NEWS05/608070381/1001/NEWS
"Given the composition of the 6th Circuit and its previous rulings in related areas, it seems more likely to favor national security over civil liberties if that issue is squarely presented," said Carl Tobias, a law professor at the University of Richmond in Virginia. "And that's what this case is all about."

That's the ending of an otherwise fairly pro-Taylor article in the Detroit Free Press, btw.

I'll answer your question in two parts:

1. See the bolded text, in particular the bolded & underlined text.

2. I think, this quote is another reason for this:

"Regardless of what your position is on the merits of the issue, there's no question that it's a poorly reasoned decision," said Bobby Chesney, a national security law specialist at Wake Forest University who takes a moderate stance on the legal debate over the NSA program. "The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in."

Neither of those reasons really go to the merits of the issue: the constitutionality of the program.

[JonInMiddleGA]

Neither of those reasons really go to the merits of the issue: the constitutionality of the program.

Which means this will end up with The Supremes, which is where its been headed all along.

And while I'm not what I'd call confident of their wisdom, I'm at least hopeful in this instance.

[Dutch]

Neither of those reasons really go to the merits of the issue: the constitutionality of the program.

Well, technically, I think it is a violation of the 4th amendment. So if it is not overturned, the terrorists win that argument and keep that valuable strategic tool to communicate--without NSA interference. But I still demand the government protect me from these terror plots. Doesn't the removal of this tool hurt the our chances to stop the more complicated terror plots that require international communication?

And what do we gain when we protect the terrorist's 4th amendment rights? Will the collection now sue for peace?

[Honolulu_Blue]

Which means this will end up with The Supremes, which is where its been headed all along.

And while I'm not what I'd call confident of their wisdom, I'm at least hopeful in this instance.

Assuming it gets there, I think the chances are better than even they uphold it.

[st.cronin]

So if it is not overturned, the terrorists win that argument and keep that valuable strategic tool to communicate--without NSA interference.

The NSA will continue to do what it does regardless of what the courts say. The only thing the courts will change is the paper trail. This is truly an academic argument.

[Jonathan Ezarik]

Well, technically, I think it is a violation of the 4th amendment. So if it is not overturned, the terrorists win that argument and keep that valuable strategic tool to communicate--without NSA interference. But I still demand the government protect me from these terror plots. Doesn't the removal of this tool hurt the our chances to stop the more complicated terror plots that require international communication?

And what do we gain when we protect the terrorist's 4th amendment rights? Will the collection now sue for peace?

Pardon? This ruling doesn't prevent the NSA or any other agency from listening in on conversations. If you want to listen in, get a warrant. What's so difficult about that?

[Dutch]

Pardon? This ruling doesn't prevent the NSA or any other agency from listening in on conversations. If you want to listen in, get a warrant. What's so difficult about that?

Oh, I didn't realize it was that easy. What's that warrant say?

[Honolulu_Blue]

Pardon? This ruling doesn't prevent the NSA or any other agency from listening in on conversations. If you want to listen in, get a warrant. What's so difficult about that?

Exactly. It's not like the court is saying the NSA can't use wiretaps. It's just saying that it has to abide by the constitution when doing so.

Following FISA’s requirements are really not all that burdensome. Do you have any idea how many FISA warrants have been rejected since the law was enacted? Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four).

[st.cronin]

Exactly. It's not like the court is saying the NSA can't use wiretaps. It's just saying that it has to abide by the constitution when doing so.

Following FISA’s requirements are really not all that burdensome. Do you have any idea how many FISA warrants have been rejected since the law was enacted? Through the end of 2004, 18,761 warrants were granted, while just five were rejected (many sources say four).

I don't think anybody can verify that, though, without a pretty high security clearance, right? The question that has not been answered to my satisfaction is, if it's so easy to get a warrant, then what's the point of requiring a warrant at all? Or, to ask it from the lefty side of things, if it's so easy to get a warrant, then why not just get a warrant? The whole thing seems rather pointless. Unless, it is in fact DIFFICULT to get a warrant. Which, who knows. It's an academic fight about paperwork. I can't get worked up about it either way.

[Glengoyne]

I haven't heard that line of argument. Is that really what the administration is saying? If so, it's completely retarded and would get laughed out of pretty much any court. I am pretty sure that survelance begins and ends from the moment the tap is placed, regardless of the lenght of any one (or more) phone calls. Then again, maybe not. I certainly wouldn't put it past these clowns trying to push such an argument. We've seen worse (and will likely again).

I really thought their official view was the FISA just wasn't workable. That it didn't offer them enough "agility" to effectively go after the bad guys and all. Or that FISA was unconstitutional. Neither of which are really all that convincing either.

I'll agree here that the view was that FISA simply wasn't workable. IIRC one of the FISA judges actually said that he/she couldn't issue a warrant for the type of "wire tap", and I use that word loosely, the NSA was using, and any warrant the court did issue wouldn't stand up in a legal proceeding. That seems to indicate there might be something to the position that the technology being used doesn't fit nicely into FISA.

[st.cronin]

By the way, I am pretending to be an expert.

[Glengoyne]

Huh?

Fact 1:
Issuing warantless wiretaps is a violation of The Fourth Amendment.

Fact 2:
The President authorized warrantless wiretaps.

The Conclusion that logic demands:
The President violated the Fourth Amendment.

That's logic, my man, not partiality. Though in this day and age folks just cant (or wont) see the difference when the cookie don't crumble their way.

My point is that her decision accuses the president specifically of violating the law. That just seemed out of place, and seemed to have a political motivation.

Not to mention that Presidents have authorized warrantless searches in the past, and those have been upheld by the legal system. So there is some bit of precedent that the President does have some leeway(sp?) when it comes down to warrants and National Security.

Again I'm not arguing that she is wrong. I think the Jury, or the Court, is still out on that point. I'm simply making the point that her statement seems out of place.

On sort of a tagent. What case did she make this ruling in? There have been a number of challenges to this program, but at some point back the thought was that none of the petitioners actually had legal standing.

[flere-imsaho]

She's a judge Glen - if he violated the law, is she supposed to pretend he didn't ? Seriously ?

Given the track records of the judges Bush holds up as "examples" for the judicial branch, I think the answer here is "yes".

[flere-imsaho]

Well, technically, I think it is a violation of the 4th amendment. So if it is not overturned, the terrorists win that argument and keep that valuable strategic tool to communicate--without NSA interference.

That's a flat-out lie.

You still haven't explained to me how FISA requiring the NSA to submit a warrant application within 3 days of starting an eavesdropping operation is a restriction which impacts the NSA's ability to operate. That's not even mentioning that FISA maintains a court with Top Secret-qualified judges staffed 24/7 specifically for the purpose of responding to queries.

How anyone can see this as Bush/Gonzalez wanting to avoid any oversight at all for their eavesdropping actions is beyond me.

[flere-imsaho]

Doesn't the removal of this tool hurt the our chances to stop the more complicated terror plots that require international communication?

You know what hurts our chances to stop complicated terror plots? As commission after commission after panel after panel concluded, it's the complete and utter inability for our various intelligence agencies to communicate with each other and for their superiors to act on that information.

And what has Bush done to solve that? Fuck All, that's what.

[flere-imsaho]

And what do we gain when we protect the terrorist's 4th amendment rights?

Another lie.

This is about protecting the rights of the U.S. citizen who calls Auntie who lives in Pakistan to ask how Uncle is doing, and not having his phone call overheard by the NSA and subsequently getting put on a No-Fly List because some NSA operator was having a bad day.

[flere-imsaho]

I don't think anybody can verify that, though, without a pretty high security clearance, right?

The numbers have been verified in testimony before both the House and Senate Intelligence Committees. Simply put, it hasn't been difficult to comply with FISA. The point here, and the Administration has basically argued this point, is that Bush & Company don't want to have to comply with FISA (or the Constitution, for that matter).

[st.cronin]

The numbers have been verified in testimony before both the House and Senate Intelligence Committees. Simply put, it hasn't been difficult to comply with FISA. The point here, and the Administration has basically argued this point, is that Bush & Company don't want to have to comply with FISA (or the Constitution, for that matter).

Well, I agree they don't want to comply with Fisa, but I disagree that they don't want to comply with the Constitution. And there must be SOME reason why they don't want to comply with Fisa. "They don't want to comply with Fisa because they're wicked" just is not a compelling argument to me.

[Honolulu_Blue]

I don't think anybody can verify that, though, without a pretty high security clearance, right? The question that has not been answered to my satisfaction is, if it's so easy to get a warrant, then what's the point of requiring a warrant at all? Or, to ask it from the lefty side of things, if it's so easy to get a warrant, then why not just get a warrant? The whole thing seems rather pointless. Unless, it is in fact DIFFICULT to get a warrant. Which, who knows. It's an academic fight about paperwork. I can't get worked up about it either way.

I don't think it is pointless. It's not just a rubber stamp or an "academic fight about paperwork." Like flere mentioned, there are speciliazed FISA judges on duty 24/7 to handle these warrants. The federal government is a big place. It has many lawyers. I don't think it would take much time at all (easily less than 72 hours) to prepare a request for a warrant. The judge could receive the request and make a ruling very quickly, if not on the spot.

It's a very important check on the system. Very important. It's the 4th Amendment after all.

[flere-imsaho]

My point is that her decision accuses the president specifically of violating the law. That just seemed out of place, and seemed to have a political motivation.

Or it could simply be that he is, in fact, violating the law.

Not to mention that Presidents have authorized warrantless searches in the past, and those have been upheld by the legal system. So there is some bit of precedent that the President does have some leeway(sp?) when it comes down to warrants and National Security.

I think you're referring, ironically, to the FISA provision which allows the Attorney General to authorize some forms of operations in (temporary) lieu of the FISA court, in the name of expediency. The Judge in question did reference this as part of her argument that Congress, when creating FISA, really did bend over backward to accomodate the intelligence-gathering needs of the Executive.

But apparently being able to have Alberto Gonzalez rubber-stamp the NSA's activities wasn't enough for Bush. It's a recurring theme of this case that Bush feels he doesn't need to adhere to these laws because of the War on Terror.

Given that the War on Terror could easily last decades, if not centuries, what Bush is suggesting is no less than a fundamental change to the structure of the government away from what was written in the Constitution. I can't believe that some of you aren't concerned by this.

Look, we survived almost 50 years of having a country point several tens of thousands of nuclear warheads at us without resorting to this kind of shit, surely we can continue to practice a free form of Democracy even in light of current threats?

[flere-imsaho]

Well, I agree they don't want to comply with Fisa, but I disagree that they don't want to comply with the Constitution. And there must be SOME reason why they don't want to comply with Fisa. "They don't want to comply with Fisa because they're wicked" just is not a compelling argument to me.

They don't want to comply with FISA because they don't want to have to explain their actions to Congress, because they believe the Ends justify the Means.

They don't want to adhere to Checks and Balances in the Constitution because they believe the Ends justify the Means.

All of their actions, and quite a bit of their words, suggest these very points.

[Honolulu_Blue]

Well, I agree they don't want to comply with Fisa, but I disagree that they don't want to comply with the Constitution. And there must be SOME reason why they don't want to comply with Fisa. "They don't want to comply with Fisa because they're wicked" just is not a compelling argument to me.

If I recall correctly, Gonzales said something along the lines that if they had to comply with FISA then they wouldn't have the necessary "agility" (or something like that) to carry out the program effectively.

I don't find that argument anymore compelling.

This administration has a proven track record of lying to get what it wants (see, e.g., justifications for Iraqi War).

[st.cronin]

Look, we survived almost 50 years of having a country point several tens of thousands of nuclear warheads at us without resorting to this kind of shit, surely we can continue to practice a free form of Democracy even in light of current threats?

Yes, nothing remotely like this ever happened in the Cold War. :rolleyes:

[flere-imsaho]

Yes, nothing remotely like this ever happened in the Cold War. :rolleyes:

OK smart guy, describe me some instances in the Cold War where the President aggregated power to the Executive Branch in this manner. And if you find these examples, explain to me why they turned out to be good decisions.

[JonInMiddleGA]

They don't want to comply with FISA because they don't want to have to explain their actions to Congress, because they believe the Ends justify the Means.

Although it's an entirely different (well, much broader anyway) discussion, and one that I'm not particularly inclined to delve deeply into, I'll offer an observation as someone who wholeheartedly supports the program in question:

Perhaps it isn't the ends justifying the means, perhaps its far more a matter of believing that Congress (specifically elements within Congress) cannot be trusted with matters of national security.

[flere-imsaho]

Perhaps it isn't the ends justifying the means, perhaps its far more a matter of believing that Congress (specifically elements within Congress) cannot be trusted with matters of national security.

Why? Because members of Congress will leak the information? This would be a more effective argument if it didn't look like the Times & Post got their initial information from Executive Branch employees and that the Senators & Congressmen who did know about the program successfully sat on that information for a few years.

[MrBigglesworth]

Not to mention that Presidents have authorized warrantless searches in the past, and those have been upheld by the legal system.
What Presidents? The last two incidents that I recall are when Nixon did it, which resulted in the creation of FISA, and when Clinton did it, which resulted in an amendment to FISA. Meaning, even if the legal system held it up, the law was changed to make what Bush is now doing illegal. So you can't use past Presidents as an example, because the law is different now.

[st.cronin]

OK smart guy, describe me some instances in the Cold War where the President aggregated power to the Executive Branch in this manner. And if you find these examples, explain to me why they turned out to be good decisions.

Look, I'm not interested in arguing, so I'll just concede. You're right - warrantless wiretaps will be the death of the Republic.

[MrBigglesworth]

The question that has not been answered to my satisfaction is, if it's so easy to get a warrant, then what's the point of requiring a warrant at all?
Because it is easy to get a warrant on the evildoers, and not easy to get a warrant on those you may want to spy on for other reasons. If you get rid of warrants, it just makes it easy to spy on anyone you want.

[MrBigglesworth]

Look, I'm not interested in arguing, so I'll just concede. You're right - warrantless wiretaps will be the death of the Republic.
It's usually good form when you throw a sarcastic comment out there denigrating someone's argument to have something to back it up with. Otherwise your clever rejoinder just looks like bullshit that you made up.

[flere-imsaho]

Look, I'm not interested in arguing, so I'll just concede. You're right - warrantless wiretaps will be the death of the Republic.

No, the President violating the laws of the Republic and being allowed to get away with it will be the death of the Republic. See the difference?

[st.cronin]

No, the President violating the laws of the Republic and being allowed to get away with it will be the death of the Republic. See the difference?

Except he's NOT being allowed to get away with it; they just lost this court case! My confidence in the Republic remains. This is the problem with politics; if you're not sufficiently pessimistic, even people you agree with will assault you.

[Honolulu_Blue]

They don't want to comply with FISA because they don't want to have to explain their actions to Congress, because they believe the Ends justify the Means.

They don't want to adhere to Checks and Balances in the Constitution because they believe the Ends justify the Means.

All of their actions, and quite a bit of their words, suggest these very points.

It's odd, but on some level I find the whole "Ends justify the Means" to be the most sympathetic argument in defense of the program. That's really what it all comes down to. It's at least an honest argument.

[flere-imsaho]

Except he's NOT being allowed to get away with it; they just lost this court case! My confidence in the Republic remains. This is the problem with politics; if you're not sufficiently pessimistic, even people you agree with will assault you.

I'm not saying that he's getting away with it. I'm, in part, responding to those who seem to feel he should get away with it, for various reasons, or who simply don't seem to care.

Honestly, reading comprehension?

[flere-imsaho]

It's odd, but on some level I find the whole "Ends justify the Means" to be the most sympathetic argument in defense of the program. That's really what it all comes down to. It's at least an honest argument.

And as I've said in one of the many previous threads on this, if Bush would at least just go ahead and make that argument, I would at least respect him for it. I'd still disagree, but at least he'd be honest about it.

Instead it's all "Terror this" and "Terror that" as if that's sufficient justification to throw the Constitution out the window.

[st.cronin]

I'm not saying that he's getting away with it. I'm, in part, responding to those who seem to feel he should get away with it, for various reasons, or who simply don't seem to care.

Honestly, reading comprehension?

Never mind that moderates who would be inclined to sympathize with your point of view become turned off by your language, it's all about scoring points.

[flere-imsaho]

Never mind that moderates who would be inclined to sympathize with your point of view become turned off by your language, it's all about scoring points.

Don't look at me, I didn't start the smarminess.

[Dutch]

Another lie.

This is about protecting the rights of the U.S. citizen who calls Auntie who lives in Pakistan to ask how Uncle is doing, and not having his phone call overheard by the NSA and subsequently getting put on a No-Fly List because some NSA operator was having a bad day.

I have a breakthrough. Flere, for all your faults, at least you can give a fucking example. I thank you!

Now, the question is, what's more important, stopping a terror plot to blow up planes or the inconvenience that is dropped on some citizens becuase they can't fly on time? Seriously, is that the scope of the liberal bitching? Because somebody got inconvenienced?

[flere-imsaho]

It's not the inconvenience, it's the principle. Do we, as a country, stand for liberty or paranoia? As an addendum, I'd like to point out that our incursion into Iraq, which was supposed to "protect us from the terrorists" has now cost more American lives than were lost on 9/11. So I have to say that I'm not really convinced by the Administration's various argument that they must have capability X to "win" the War on Terror, based on their track record so far.

Edit:

Here's the main problem, though:

some citizens

Dutch, these are the same jokers who put Ted Kennedy on the No-Fly list. I think it's pretty safe to say that if there's no oversight, we're all going to have our conversations monitored pretty soon, and a good portion of Americans are going to see themselves in trouble because the NSA "has a hunch".

[Subby]

Dear Friend,

Yesterday, a Democrat-appointed judge in Detroit sided with the ACLU and ordered an immediate halt to the terrorist surveillance program. This decision is a reminder of what is at stake in 2006. Will we use every tool in our arsenal to respond to emerging threats, or embrace the Democrat-ACLU position that just made it harder for our intelligence agencies to detect terrorist plots inside the United States?

Watch our new Web video, which exposes the Democrats' weak record on national security.

http://www.gop.com

And if you are outraged by this latest development, will you sign the petition against this decision weakening the tools we need to fight the War on Terror?

http://gop.com/GetActive/Petition.aspx?petitionid=21

Democrats like to talk tough, but when it comes to fighting the War on Terror, the record speaks for itself:

Republicans passed and have consistently supported the Patriot Act to disrupt terrorist plots. Senate Democrat leader Harry Reid bragged about "killing" the Patriot Act.

Republicans strengthened and reformed America's intelligence agencies. Democrats want to surrender the tools needed to track and monitor suspected terrorists.

Republicans have increased homeland security funding by 300% over the Clinton Administration, and increased funding for border control and border security by 66% over the Clinton Administration.

And finally, Republicans are committed to confirming fair-minded judges who won't re-write the Constitution. Democrat-appointed judges are the driving force behind decisions that would weaken efforts to track down terrorists.

http://gop.com/GetActive/Petition.aspx?petitionid=21

See the record for yourself and take action by signing the petition against this outrageous decision.

http://www.gop.com

Sincerely,

Ken Mehlman
Chairman, Republican National Committee



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Hmmm...

[digamma]

Now, the question is, what's more important, stopping a terror plot to blow up planes or the inconvenience that is dropped on some citizens becuase they can't fly on time? Seriously, is that the scope of the liberal bitching? Because somebody got inconvenienced?

Do you really want constitutional analysis of a program to be results oriented? I'll preface this by saying that I don't have enough knowledge about the NSA wiretapping program to make an educated guess about it's constitutionality. However, the line of reasoning that it's an effective method of preventing terror, so we should let it stand seems to be a pretty consistent argument here--and that's not how we decide constitutional questions. I mean, hell, it would be probably be pretty damn effective if we were strip searched by an armed guard every time we left our house and every time we entered another building. If you want to argue that the wiretapping program is constitutional because it a) doesn't abridge a fundamental constitutional right or b) regulates a fundamental constitutional right, but in doing so is narrowly tailored to meet a compelling government interest, do so (I may agree with you), but arguing that it should be continued because it works seem to be little more than [your word] "bitching."

[Glengoyne]

I have a breakthrough. Flere, for all your faults, at least you can give a fucking example. I thank you!

Now, the question is, what's more important, stopping a terror plot to blow up planes or the inconvenience that is dropped on some citizens becuase they can't fly on time? Seriously, is that the scope of the liberal bitching? Because somebody got inconvenienced?

You give too much credit in that there really aren't any examples of the program being misused in the manner that flere describes(without a diagram actually).

[MrBigglesworth]

You give too much credit in that there really aren't any examples of the program being misused in the manner that flere describes(without a diagram actually).
Glen, the reason we don't know if the program has been misused is because it's a secret program that doesn't have oversight! Which is the whole point of why people are upset.

[Glengoyne]

Glen, the reason we don't know if the program has been misused is because it's a secret program that doesn't have oversight! Which is the whole point of why people are upset.

I take your point, but I think to say that there is NO oversight isn't accurate. I'd probably even agree with you if the statement were ammended to say that there isn't suficiently independent oversight.

[WVUFAN]

Now, the question is, what's more important, stopping a terror plot to blow up planes or the inconvenience that is dropped on some citizens becuase they can't fly on time? Seriously, is that the scope of the liberal bitching? Because somebody got inconvenienced?

Initially, I wholely agreed with the wiretapping program, but after doing some research and thinking on it a bit, I've changed my mind.

Which one is more important isn't the question. The thing is that it's a slippery slope -- once you begin removing or superceding civil rights for the greater good, where does it end? Where's the line, and when do you draw it?

[Buccaneer]

Do we, as a country, stand for liberty or paranoia?

We, as a country, don't have a clue as to what liberty means - from those screaming that we need more to those screaming we need less. Look at all those repeating Franklin's quote (...deserve neither and lose both) as if they know what it really means. Bumper Stick History at its best.

[Glengoyne]

What Presidents? The last two incidents that I recall are when Nixon did it, which resulted in the creation of FISA, and when Clinton did it, which resulted in an amendment to FISA. Meaning, even if the legal system held it up, the law was changed to make what Bush is now doing illegal. So you can't use past Presidents as an example, because the law is different now.

The warrantless searches of Alderich Aimes'(?) property resulted in amendments to FISA? Did the amendment limit or restrict the authority Clinton asserted, or authorize it?

[Glengoyne]

As for the comments I made about the rhetorical flourishes in the decision itself, a couple of law professors on NPR essentially said that the flamboyant statements the judge made in her ruling would make it difficult for that portion of the decision to withstand appeal.

I'm apparently not the only one who believes those comments were out of place. They served a political agenda much more so than a legal/judicial one.

[MrBigglesworth]

The warrantless searches of Alderich Aimes'(?) property resulted in amendments to FISA? Did the amendment limit or restrict the authority Clinton asserted, or authorize it?
In their pursuit of Ames, the FBI got permission from the FISA court at least three times to do electronic surveillance, then did physical searches without a warrant. At the time, physical searches were not covered under FISA. After the Ames case, FISA was amended to include physical searches by Congress and signed into law by Clinton. After that, the Clinton administration never asserted their authority to unwarranted physical searches. Contrast it to Bush, who says his authority is above FISA.

I can see how you could be confused though, as it's one of the zombie GOP facts that have been making the rounds.

[SackAttack]

Glen, the reason we don't know if the program has been misused is because it's a secret program that doesn't have oversight! Which is the whole point of why people are upset.

".

[Glengoyne]

In their pursuit of Ames, the FBI got permission from the FISA court at least three times to do electronic surveillance, then did physical searches without a warrant. At the time, physical searches were not covered under FISA. After the Ames case, FISA was amended to include physical searches by Congress and signed into law by Clinton. After that, the Clinton administration never asserted their authority to unwarranted physical searches. Contrast it to Bush, who says his authority is above FISA.

I can see how you could be confused though, as it's one of the zombie GOP facts that have been making the rounds.

Not a zombie GOP fact. I heard it on NPR:D. Although it is good information to have, and probably should have been mentioned by the anti-Bush speaker on Justice Talking. In any case, I believe the point being made by those citing Clinton's use of the warrantless search is that the executive's responsibility to provide for National Security shall not be limited by congress. That is or at least was one of the arguments being made. I don't find it particularly persuasive, but I'm not a constitutional scholar. I'll wait until the Supreme Court weighs in on the constitutionality issue, although I don't think this ruling will reach the hight court. At least not the constitutionality decision.

[SackAttack]

In any case, I believe the point being made by those citing Clinton's use of the warrantless search is that the executive's responsibility to provide for National Security shall not be limited by congress.

Oddly, the Constitution doesn't say anything about that. It says the President is the Commander-in-Chief of the armed services, and it says that Congress has the power to tax, levy, etc and to provide for the general defense of the United States.

In neither Article I nor in Article II are there any Constitutional limits placed on the Legislative's oversight of the Executive with respect to the national defense (or National Security, if you prefer).

The Constitutionally-mandated oath of office is not a grant of unchecked executive power.

[MrBigglesworth]

Not a zombie GOP fact. I heard it on NPR:D.
I imagine the guy that said it was either a GOP hack or heard it unchallenged from a GOP hack (much like you heard it unchallenged and assumed it to be true). That's why they are zombie facts, they are impossible to kill because so many people hear them unchallenged.

In any case, I believe the point being made by those citing Clinton's use of the warrantless search is that the executive's responsibility to provide for National Security shall not be limited by congress.
Well whoever is making that point is stupid or willfully lying, because Clinton's use of the warrantless search was subsequently limited by Congress, which makes it a poor example of something that can't be limited by Congress.

[Glengoyne]

Oddly, the Constitution doesn't say anything about that. It says the President is the Commander-in-Chief of the armed services, and it says that Congress has the power to tax, levy, etc and to provide for the general defense of the United States.

In neither Article I nor in Article II are there any Constitutional limits placed on the Legislative's oversight of the Executive with respect to the national defense (or National Security, if you prefer).

The Constitutionally-mandated oath of office is not a grant of unchecked executive power.

Understood about what the constitution explicitly says. Bush isn't the first Commander in Chief to claim the responsibility of National Security and all that that entails, nor, as I understand it, is this the first administration to state that while Congress can legislate controls with relation to the Executive branch, those limits will not constrain the executive's actions taken to protect the nation.

I'm tending to agree with you about the speciousness of that particular argument, espectially in an area so tightly regulated as surveilance. I'm more persuaded by the notion that what the NSA is doing simply may not be practically addressed by existing law. What they might be doing is some sort of continuous omni-present surveilance that triggers follow up evaluation based on unknown(to us) criteria. That type of thing might very well be effective, but doesn't lend itself to the use of a warrant.

[Glengoyne]

I imagine the guy that said it was either a GOP hack or heard it unchallenged from a GOP hack (much like you heard it unchallenged and assumed it to be true). That's why they are zombie facts, they are impossible to kill because so many people hear them unchallenged.


Well whoever is making that point is stupid or willfully lying, because Clinton's use of the warrantless search was subsequently limited by Congress, which makes it a poor example of something that can't be limited by Congress.

Well technically congress didn't modify the law to limit Presidential authority. That is just as much zombie spin. The law was modified because it was previously silent with regard to physical searches. It was the FISA statute's deficiency that prompted the change. Without that change the President would again be left in a position better served by a judge. In other words, Congress and the President, as a matter of fact, felt that the FISA court was in a better position to make such decisions. The fact that the searches withstood the scrutiny of the justice system, seem to indicate that constitutionally the President was on firm ground when he issued his order.

And really, Presidents Reagan, Bush "the first", and Clinton all issued signing statements on multiple bills declaring that they will obey them so long as they didn't constrain the responsibilities of their office. It is that assertion that will have to be challenged, and I'm not sure what the outcome of that challenge will be.

[Vinatieri for Prez]

In other news, Bush will be gone in 2 years.

[MrBigglesworth]

Well technically congress didn't modify the law to limit Presidential authority. That is just as much zombie spin. The law was modified because it was previously silent with regard to physical searches. It was the FISA statute's deficiency that prompted the change. Without that change the President would again be left in a position better served by a judge. In other words, Congress and the President, as a matter of fact, felt that the FISA court was in a better position to make such decisions
What's the difference between modifying the law to limit Presidential authority and modifying it because the Judicial branch is better able to make decisions? They're both the same concept, that the Executive doesn't have carte blanche to spy on anyone they want.

The fact that the searches withstood the scrutiny of the justice system, seem to indicate that constitutionally the President was on firm ground when he issued his order.
Ames pleaded guilty, I don't think it ever went through the justice system, they had enough on him from their years of having him under surveillance that the extra material from the physical searches didn't matter. And besides, what Bush is doing is still against the law, and the President can't break the law, and FISA is the law of the land and hasn't been deemed unconstitutional by the Supreme Court.

[Dutch]

In other news, Bush will be gone in 2 years.

And peace on Earth will return. Hooray. Boy, do you have a big shock comin' to you.

[Dutch]

Initially, I wholely agreed with the wiretapping program, but after doing some research and thinking on it a bit, I've changed my mind.

Which one is more important isn't the question. The thing is that it's a slippery slope -- once you begin removing or superceding civil rights for the greater good, where does it end? Where's the line, and when do you draw it?

The ability of city detectives to sit in cars and survey a house and subsequently everybody on the street didn't result in a police state that you allude to. It resulted in city detectives watching a house and using common sense on the others things on the public street he/she observed. If he/she saw something illegal going on while surveying a particular house, the detective could report or stop the illegal act. Even though, constitutionally, he was not allowed to survey the un-warranted act.

Common sense is the great weapon against any slipperly slope.

[Vinatieri for Prez]

And peace on Earth will return. Hooray. Boy, do you have a big shock comin' to you.

??????????????

[Celeval]

The ability of city detectives to sit in cars and survey a house and subsequently everybody on the street didn't result in a police state that you allude to. It resulted in city detectives watching a house and using common sense on the others things on the public street he/she observed. If he/she saw something illegal going on while surveying a particular house, the detective could report or stop the illegal act. Even though, constitutionally, he was not allowed to survey the un-warranted act.

Would be a nice scenario, but I don't think you need a warrant to perform an on-the-street stakeout. And, for that matter, if they saw something illegal going on from a public place (i.e., two police officers taking their lunch break), it would be the same scenario. What is unconstitutional about surveying an illegal act while acting in an appropriate manner?

[st.cronin]

We, as a country, don't have a clue as to what liberty means - from those screaming that we need more to those screaming we need less. Look at all those repeating Franklin's quote (...deserve neither and lose both) as if they know what it really means. Bumper Stick History at its best.

agree

[Glengoyne]

What's the difference between modifying the law to limit Presidential authority and modifying it because the Judicial branch is better able to make decisions? They're both the same concept, that the Executive doesn't have carte blanche to spy on anyone they want.

Well my point was actually that the law was amended to address its own inadequacies, not to limit presidential power as you are spinning. In other words, you are making it sound like Congress rebuked the President, and modified FISA to reign him in. That isn't the case. His authority to authorize a warrantless search in the interest of National Security wasn't challenged, at least not substantially, by Congress. Congress was addressing the fact that FISA didn't have a mechanism for "secret" physical search warrants.


... And besides, what Bush is doing is still against the law, and the President can't break the law, and FISA is the law of the land and hasn't been deemed unconstitutional by the Supreme Court.

Saying what the NSA is doing is against the law is reasonable although debatable from the standpoint that the laws don't adequately address the technology. I wouldn't argue against your position on that point, especially when it comes down to isolating a single call. That sounds exactly like a wire tap to me, but I believe one argument the administration is making is that current laws don't adequately address the situation at hand. Much like the Ames search.

Certainly the part about the President breaking the law is debatable because that is a constitutional question that hasn't been addressed. He is asserting the powers of his office, as he believes them to be. If Congress or the judicial system reign him in, then you might be able to declare that he is breaking the law. We're simply not at that point yet.

From the President's perspective, I'm not sure what the right thing to do would be. Think about it, the NSA has a technology that allows it to actively scan every international call, looking for who knows what, to trigger a closer look. Your legal advisors tell you that, under existing law, there isn't any way to actually get a useful warrant for anything that might be discovered using the new technology. Do you simply not use the technology? Or do you go to Congress to ask for the law to be changed? At the same time, advertising that you have this otherwise unknown capability. Or do you actually do what you and other Presidents have declared is within your authority, and simply authorize actions that might be outside the normal scope of the law in the interest of National Security?

I don't think I can find too much fault in the President's actions, authorizing what he has authorized. I believe he is acting in what he believes is the best interest of the country. I think he could have gone about this differently(as is usually the case), and included a more formal independent oversight mechanism, perhaps overseen by members of Congress. There is oversight in place, in that this is being done under the scrutiny of the NSA, and its policies. It isn't like the President is listening in on the calls of his political enemies. This is being done in the interest of , well, National Security for the lack of a better word.

[MrBigglesworth]

Well my point was actually that the law was amended to address its own inadequacies, not to limit presidential power as you are spinning. In other words, you are making it sound like Congress rebuked the President, and modified FISA to reign him in. That isn't the case. His authority to authorize a warrantless search in the interest of National Security wasn't challenged, at least not substantially, by Congress. Congress was addressing the fact that FISA didn't have a mechanism for "secret" physical search warrants.
Is there any evidence, from the congressional record or anything, that the Republican congress of 1995, a congress coming in on a platform of anti-Clinton and pro-small government had no interest in limiting the President's power? Why was the law amended if not to limit his powers? What other reason would it be? Isn't that the job of warrants, to limit the power of a law enforcement agency? Isn't congress saying, "No, you can't do that," explicitly limiting his power? I'm still not getting how telling someone they can't do something is not limiting what they can do.

Saying what the NSA is doing is against the law is reasonable although debatable from the standpoint that the laws don't adequately address the technology. I wouldn't argue against your position on that point, especially when it comes down to isolating a single call. That sounds exactly like a wire tap to me, but I believe one argument the administration is making is that current laws don't adequately address the situation at hand. Much like the Ames search.

Certainly the part about the President breaking the law is debatable because that is a constitutional question that hasn't been addressed. He is asserting the powers of his office, as he believes them to be. If Congress or the judicial system reign him in, then you might be able to declare that he is breaking the law. We're simply not at that point yet.

From the President's perspective, I'm not sure what the right thing to do would be. Think about it, the NSA has a technology that allows it to actively scan every international call, looking for who knows what, to trigger a closer look. Your legal advisors tell you that, under existing law, there isn't any way to actually get a useful warrant for anything that might be discovered using the new technology. Do you simply not use the technology? Or do you go to Congress to ask for the law to be changed? At the same time, advertising that you have this otherwise unknown capability. Or do you actually do what you and other Presidents have declared is within your authority, and simply authorize actions that might be outside the normal scope of the law in the interest of National Security?

I don't think I can find too much fault in the President's actions, authorizing what he has authorized. I believe he is acting in what he believes is the best interest of the country. I think he could have gone about this differently(as is usually the case), and included a more formal independent oversight mechanism, perhaps overseen by members of Congress. There is oversight in place, in that this is being done under the scrutiny of the NSA, and its policies. It isn't like the President is listening in on the calls of his political enemies. This is being done in the interest of , well, National Security for the lack of a better word.
The thing is, you don't know any of this. Quite frankly, and I really mean no disrespect and I don't mean to be insulting, but you are talking out of your ass here because you (and I) know next to nothing about this program except that they somehow spy on American citizens without warrants. You are just going on faith in the Bush administration, you are going on faith that they are not spying on domestic calls, that they are within the framework of the law, that they are not spying on political enemies, that they have the best interests of the country in mind, etc. The only reason you have faith in these things is because they told you to. And these same people that have told you to have faith have faught at every turn not to have their legal reasoning tested in court, and when it finally was tested, it lost, it lost big time. And they can't even use info from the wiretaps in court, because the courts will throw it out. So where is this faith coming from?

[Glengoyne]

Is there any evidence, from the congressional record or anything, that the Republican congress of 1995, a congress coming in on a platform of anti-Clinton and pro-small government had no interest in limiting the President's power? Why was the law amended if not to limit his powers? What other reason would it be? Isn't that the job of warrants, to limit the power of a law enforcement agency? Isn't congress saying, "No, you can't do that," explicitly limiting his power? I'm still not getting how telling someone they can't do something is not limiting what they can do.


The thing is, you don't know any of this. Quite frankly, and I really mean no disrespect and I don't mean to be insulting, but you are talking out of your ass here because you (and I) know next to nothing about this program except that they somehow spy on American citizens without warrants. You are just going on faith in the Bush administration, you are going on faith that they are not spying on domestic calls, that they are within the framework of the law, that they are not spying on political enemies, that they have the best interests of the country in mind, etc. The only reason you have faith in these things is because they told you to. And these same people that have told you to have faith have faught at every turn not to have their legal reasoning tested in court, and when it finally was tested, it lost, it lost big time. And they can't even use info from the wiretaps in court, because the courts will throw it out. So where is this faith coming from?

As for the FISA changes. I was awake during those years, and I don't recall defending Clinton against the partisan railings of my anti-Clinton friends, nor even my pro-Privacy whacko lefty friends. The republicans didn't actively complain about it and slap his wrist. They modified the FISA law because it didn't address something it needed to.

As for the talking out my ass part. The administration has said that the law doesn't address the specific technology being addressed here. A FISA judge has essentially come out and said the same. I'm taking a bit of a leap on how the technology works, and I'm certainly simplifying it, but it seems like a reasonable deduction to me. I do know that the President doesn't have a set of headphones in his office, scanning foreign phone calls. That is occurring over at the NSA, and the NSA has rules about what it does. They don't allow people, not even the President, to use NSA assets for their own personal agenda. Their policies are the oversight. An example of this oversight was given by one of the NSA folks heading up the, now infamous, phonecall database program. He said that the actions, that is to say the queries, of one technicians/analysts didn't pass the muster of those reviewing the "appropriateness" of the requests/queries. That technician/analyst had their employment terminated. I'll go along with you saying the oversight isn't sufficient to quell critics' distrust, but I don't think it is fair to say that there is no oversight.

[MrBigglesworth]

As for the FISA changes. I was awake during those years, and I don't recall defending Clinton against the partisan railings of my anti-Clinton friends, nor even my pro-Privacy whacko lefty friends. The republicans didn't actively complain about it and slap his wrist. They modified the FISA law because it didn't address something it needed to.
I don't remember it being a huge issue at the time either, but Clinton wasn't going around back then proclaiming himself to be above congress when it comes to national security, and nobody, especially a Republican, was going to come out in full-throat defense of traitor selling secrets to Russia.

So why do you think that the law was changed to not allow physical searches without a warrant if the reason wasn't to take away unilateral power from the executive? You keep saying that it 'needed to be addressed', but why?

[flere-imsaho]

You give too much credit in that there really aren't any examples of the program being misused in the manner that flere describes(without a diagram actually).

Actually, I happen to know a number of "brown" people who will no longer travel to the U.S. (they're British or Indian citizens) because of the "treatment" they got the last time through (and no, I'm not just talking about being delayed and asked questions). And none of them are in any way terrorist threats.

Besides, there are plenty of stories about various people having things screwed up because they mistakenly got on No-Fly lists. For some, it's been even worse than identify theft.

It's all been pretty mainstream press stuff. I'm surprised you haven't heard of these stories.

[flere-imsaho]

Not a zombie GOP fact. I heard it on NPR:D.

Ah, but they routinely bring on David Brooks to make a fool of himself....

[flere-imsaho]

And really, Presidents Reagan, Bush "the first", and Clinton all issued signing statements on multiple bills declaring that they will obey them so long as they didn't constrain the responsibilities of their office. It is that assertion that will have to be challenged, and I'm not sure what the outcome of that challenge will be.

Until Reagan, 75 signing statements were used by Presidents from James Monroe onward. Reagan, Bush I and Clinton made about 250 signing statements. Bush II has made at least 130 so far.

A key proponent of signing statements, who made a persuasive argument for using them while a staff attorney for President Reagan, is now-Supreme Court Justice Samuel Alito.

So, basically signing statements were generally unnecessary for the first 200 years of this country, but then Sam Alito comes along and all of a sudden the Executive Branch gets to pick-and-choose what parts of law the Legislative Branch has passed that it wants to implement?

[flere-imsaho]

And peace on Earth will return. Hooray. Boy, do you have a big shock comin' to you.

I'd settle for a return of dignity to the Office of the President.

[flere-imsaho]

From the President's perspective, I'm not sure what the right thing to do would be. Think about it, the NSA has a technology that allows it to actively scan every international call, looking for who knows what, to trigger a closer look. Your legal advisors tell you that, under existing law, there isn't any way to actually get a useful warrant for anything that might be discovered using the new technology. Do you simply not use the technology? Or do you go to Congress to ask for the law to be changed? At the same time, advertising that you have this otherwise unknown capability. Or do you actually do what you and other Presidents have declared is within your authority, and simply authorize actions that might be outside the normal scope of the law in the interest of National Security?

Instead, what the Administration actually did was to go to the House & Senate Intelligence Committees, in closed session, and say "we have this new technology, we're using it now, we're going to continue to use it, and there's nothing you can do about it. Furthermore, if you say anything to anyone about it, things will go badly for you."

I have to believe there's a reasonable middle ground, especially in light of the fact that the Senators and Representatives kept their end of the bargain (under duress) and did not reveal what the NSA was doing.

[st.cronin]

I have to believe there's a reasonable middle ground, especially in light of the fact that the Senators and Representatives kept their end of the bargain (under duress) and did not reveal what the NSA was doing.

yes yes yes

[Glengoyne]

Actually, I happen to know a number of "brown" people who will no longer travel to the U.S. (they're British or Indian citizens) because of the "treatment" they got the last time through (and no, I'm not just talking about being delayed and asked questions). And none of them are in any way terrorist threats.

Besides, there are plenty of stories about various people having things screwed up because they mistakenly got on No-Fly lists. For some, it's been even worse than identify theft.

It's all been pretty mainstream press stuff. I'm surprised you haven't heard of these stories.

Yes Yes, because this program resulted in those happenings. :rolleyes:<--I've really only rolled eyes a couple of times previously.

I'm saying that no one, NO ONE, has any evidence of the program being addressed here in this post being misued. What you are describing is attributable to a long list of injustices, no doubt, but not this program.

[Glengoyne]

Until Reagan, 75 signing statements were used by Presidents from James Monroe onward. Reagan, Bush I and Clinton made about 250 signing statements. Bush II has made at least 130 so far.

A key proponent of signing statements, who made a persuasive argument for using them while a staff attorney for President Reagan, is now-Supreme Court Justice Samuel Alito.

So, basically signing statements were generally unnecessary for the first 200 years of this country, but then Sam Alito comes along and all of a sudden the Executive Branch gets to pick-and-choose what parts of law the Legislative Branch has passed that it wants to implement?

Actually I thought Alito was borderline against Reagan's increased use of Signing Statements. The Idea was Ed Meece's, as I understand.

[flere-imsaho]

I'm saying that no one, NO ONE, has any evidence of the program being addressed here in this post being misued. What you are describing is attributable to a long list of injustices, no doubt, but not this program.

So wait a second, it's not OK for me to suggest that these problems were possibly the result of this program or programs like this, but it's OK for you and others to suggest that this program specifically has been responsible for stopping terrorist threats (though no evidence exists for that)?

Congrats, I think you've pulled the thread to a new level of absurdity. Can we talk about my tiger-repelling rock now?

[flere-imsaho]

Actually I thought Alito was borderline against Reagan's increased use of Signing Statements. The Idea was Ed Meece's, as I understand.

Since Alito worked for Meese at the time, it's kind of a chicken-and-the-egg issue as to who came up with the idea. However, Alito did write the "white paper" on the subject and was active in promoting it internally.

[Glengoyne]

So wait a second, it's not OK for me to suggest that these problems were possibly the result of this program or programs like this, but it's OK for you and others to suggest that this program specifically has been responsible for stopping terrorist threats (though no evidence exists for that)?

Congrats, I think you've pulled the thread to a new level of absurdity. Can we talk about my tiger-repelling rock now?

You might find others suggesting that these tools have been successfully used in the prevention of terrorism, but not me. I don't know.

I do know that is their purported reason for existence, and I have no reason to doubt that is what the technology is being used for. That said, we still don't have any evidence that it has been successful. Nor is there any evidence to indicate it is being misused, so the claims that it is specifically responsible for preventing attacks, are just as much hyperbole as the claims that it is being used to populate the no fly lists.

[Glengoyne]

I don't remember it being a huge issue at the time either, but Clinton wasn't going around back then proclaiming himself to be above congress when it comes to national security, and nobody, especially a Republican, was going to come out in full-throat defense of traitor selling secrets to Russia.

So why do you think that the law was changed to not allow physical searches without a warrant if the reason wasn't to take away unilateral power from the executive? You keep saying that it 'needed to be addressed', but why?

I'm saying it was changed back then because Ideally we don't want the President authorizing actions without warrants signed by a judge. I'm also saying that one can honestly argue that what Bush has done is not significantly different that the actions Clinton took. If the law doesn't address the technology being utilized, then it really isn't much different than the law not recognizing a physical search. In both cases the Presidents' claimed the authority to fill the void.

[MrBigglesworth]

If the law doesn't address the technology being utilized, then it really isn't much different than the law not recognizing a physical search.
Let's examine this a little bit. How does the law not address the technology? Let's assume that the technology, if there is some technology, is some kind of mass gathering and filtering method to determine potential terrorists and/or assorted other evildoers. When they sort out these evildoers, don't they have to wire tap (or just listen more intently) their phones to get more information? And doesn't the law clearly state that phone taps without warrants is illegal?

Or what kind of technology is it that is not addressed by present laws?

[Grammaticus]

Until Reagan, 75 signing statements were used by Presidents from James Monroe onward. Reagan, Bush I and Clinton made about 250 signing statements. Bush II has made at least 130 so far.

A key proponent of signing statements, who made a persuasive argument for using them while a staff attorney for President Reagan, is now-Supreme Court Justice Samuel Alito.

So, basically signing statements were generally unnecessary for the first 200 years of this country, but then Sam Alito comes along and all of a sudden the Executive Branch gets to pick-and-choose what parts of law the Legislative Branch has passed that it wants to implement?
How does this compare to the total number of bills passed in the first 200 years compared to the total number of bills passes since?

[Glengoyne]

Let's examine this a little bit. How does the law not address the technology? Let's assume that the technology, if there is some technology, is some kind of mass gathering and filtering method to determine potential terrorists and/or assorted other evildoers. When they sort out these evildoers, don't they have to wire tap (or just listen more intently) their phones to get more information? And doesn't the law clearly state that phone taps without warrants is illegal?

Or what kind of technology is it that is not addressed by present laws?
I agree with your assessment that at the point that they target an individual call, they are essentially tapping the phone. At least from a practical sense, that is the result. I said that fairly clearly above when I said:
Saying what the NSA is doing is against the law is reasonable, although debatable, from the standpoint that the laws don't adequately address the technology. I wouldn't argue against your position on that point, especially when it comes down to isolating a single call. That sounds exactly like a wire tap to me, but I believe one argument the administration is making is that current laws don't adequately address the situation at hand. Much like the Ames search.
I do think the new technology is sufficiently different for the argument to have some potential. Considering that it is different enough that a judge said that they couldn't actually issue a warrant to cover its use. That scenario sounds much like the FISA court's inability to act with validity regarding Ames.

[flere-imsaho]

How does this compare to the total number of bills passed in the first 200 years compared to the total number of bills passes since?

I took a brief look here (http://www.senate.gov/pagelayout/reference/two_column_table/Resumes.htm) and there doesn't seem to be a large increase over time, but I admit I haven't looked at every year.

[MrBigglesworth]

Does this ruling officially make Bush a felon? Or would he have to go through a criminal trial to officially be a felon? He admitted to it, after all.

[Vinatieri for Prez]

Well, we can all rest easy. Apparently, the White House has relented -- the terrorist surveillance program will be subject to the FISA court.

http://www.msnbc.msn.com/id/16673270/

Thankfully, our constitution was only trampled on for 5 years or so.

[sterlingice]

I guess that's good news.

I'm still a bit suspect of the whole idea in general as the biggest argument as to why the President should be doing this during the whole debate was because it was basically a rubber stamp court anyways. Doesn't that throw up a red flag, too?

SI

[JPhillips]

Or maybe not...

From the NYTimes

The administration said it had briefed the full House and Senate Intelligence Committees in closed sessions on its decision.

But Representative Heather A. Wilson, Republican of New Mexico, who serves on the Intelligence committee, disputed that, and some Congressional aides said staff members were briefed Friday without lawmakers present.

Ms. Wilson, who has scrutinized the program for the last year, said she believed the new approach relied on a blanket, “programmatic” approval of the president’s surveillance program, rather than approval of individual warrants.

Administration officials “have convinced a single judge in a secret session, in a nonadversarial session, to issue a court order to cover the president’s terrorism surveillance program,” Ms. Wilson said in a telephone interview. She said Congress needed to investigate further to determine how the program is run.