Retroactive amnesty seems like a strange gift for an administration that has successfully stonewalled every attempt to investigate it:
[T]he Specter bill would grant blanket amnesty to anyone who authorized warrantless surveillance under presidential authority, a provision that seems to ensure that no one would be held criminally liable if the current program is found illegal under present law.
The proposed bill also contains what is now, sadly, only the second-most-ridiculous thing I have ever heard a “respectable” member of Congress propose. Glenn Greenwald explains:
A law which makes it “an option” — rather than a requirement — for the Government to obtain a warrant before eavesdropping is about as meaningless of a law as can be imagined.
Read the whole post at Greenwald’s. If you’re from PA consider calling Arlen Specter’s DC office at (202) 224-4254 to find out what the hell he’s been smoking, or you can find his local offices here. Keep in mind that he is not seeking reelection so very likely the only voter he cares about is the guy who chooses whether he keeps his committee chair – Bill Frist.
From the WaPo article, the crux of the whole story:
Specter’s bill, introduced yesterday at a committee meeting, was a compromise worked out with Sen. Jon Kyl (R-Ariz.) and designed to gather enough Republican support so it can be taken to the floor for a vote.
Specter’s stated goal has always been to find a way to get the President to follow the law. Apparently the idea of making the law harder to break proved such an insurmountable obstacle in today’s Republican caucus that Specter had to change course. Instead of bringing the president to the law, just bring the law to the president! In a jaded sort of way that makes sense – if you write into law the old Nixonian adage that whatever the president does (or in this case, did) is by definition legal, then you have practically guaranteed that the president will follow the law. How can he not?
Way to go, Arlen.
Who was it that said there was no executive power grab?
Ok I am totally going to threadjack this. But I’ve searched all over and cannot find this.
Back during the last Coulter brouhaha, there was a quote from her (from the book?) about how the servicement who had died in Iraq probably would have been unemployed anyway.
Anyone have a link to that quote?
Is that from her book?
The real question here is: just what is Arlen doing in the photos Karl Rove is using to blackmail him?
It was fabricated. Why anyone would feel the need to fabricate inflammatory quotes from that hag is another question, since she does a fine job on her own.
Good post, Tim.
All together now: Can we say Potemkin Government?
The Nation, October, 2004
Welcome to Bushworld.
That must be why I cannot find that quote anymore.
Last night I watched the interview of Caroline Kennedy on The Daily Show regarding Profiles in Courage.
Should someone send him that book? or do you think he is too far gone?
The fake Coulter quote has a ring of truthiness to it, and that’s good enough for me.
It’s got to be sheep… in lingerie.
I’ll see your fake Coulter quote, and raise with a real Joe Wilson quote:
Specter, just yesterday:
And, how does “BLANKET IMMUNITY” not constitute a blank check??? How does authorizing “OPTIONAL WARRANTS” not give the President the final word???
I don’t think it has to do with lingerie-clad sheep. Specter has been doing this two-step all along, arguing on the Senate floor one day that the President has “inherent constitutional authority,” then calling for hearings the next.
Arlen has done this kind of shit for years, to keep support in Philly and Pittsburgh high enough to keep him in office. Now, its just habit.
How about we just start calling Arlen by his real first name?
I think LITBM’s quote explains it well. This NSA program, from what’s been stated about it so far, was not enacted in bad faith. There are good legal arguments in favor of it. Specter, who has never been afraid to buck conservatives, is covering for the possibility that in the case of a legal witchhunt, which many on the left would love to see.. if in the off-chance they got the court to rule in their favor, it protects those who reasonably thought they were acting within the law.. and that seems fair.
I think you would have to be quite a partisan cynic to read Specter’s actions regarding retroactive amnesty any other way
Of course it was. They say its to fight terrorism but its the same abuse of power Nixon committed. Saying its to fight terrorism is at best ‘bad faith’. In fact its out right lying.
Incredible. And you see yourself as rational, right?
Isn’t that the very definition of “partisan cynic?”
Or, is it the definition of “preemptive coverup?”
It’s kind of odd, before the program has been investigated, to proclaim definitively that those who carried it out were acting in good faith and should be legally immunized.
It’s all well and good to believe that the whole thing was done pursuant to a good-faith belief in the program’s legality, but with the incomplete information we have to this point, it’s totally ridiculous to declare “case closed” and grant a blanket immunity.
And, by the way, people go to jail every day who believed in good faith that their actions were perfectly legal. If you intentionally violate a statute because you believe it to be unconstitutional, you assume the risk that your belief is incorrect. There’s no “good-faith” exception to FISA.
This scenario where an investigation determines that no crime was committed, but a “legal witchhunt” occurs anyway, reminds me of nothing more than the people who buy radar detectors to protect themselves against “unjustified speeding tickets.” Their real purpose, of course, is to avoid the justified ones!
Only a partisan cynic would decry the most agressive and possibly destructive consolidation of executive power in American history?
Your rhetoric leaves no room for disagreement, Darrell. Which is why strong disagreement is essential.
Opposing Bush’s grabs of power is not cynical, or unreasonable. It’s a perfectly rational response.
It’s easy to shrug away protections and liberties. It’s hard to get them back. That’s why people put up such strong objection.
Why do you characterize everything as a right-left struggle, and when did defending the hijacking of liberties and protections become a righty thing to do? Who taught you that?
What principle do you think you are defending here?
Who told you that surrendering liberty to a former alcoholic president was a fair trade in return for “safety” that can’t even be proved? And why should any of us make that trade? You have never made any convincing argument for it, you just attack the people who are against it.
I didn’t know that breaking a law in good faith was legal.
Has it not been investigated to the extent that it can be through the Senate select committe on intelligence? Anything turn up which would cause reasonable people to claim bad faith?
But would those pass the ‘reasonable’ belief test? If I trespassed because I didn’t see the sign which was hidden by bushes, would a ‘typical’ court find me guilty? The NSA program certainly appears to be a reasonable interpretation of the administration’s constitutional authority, even if there is disagreement on what the president did.
Now you’re back off in left field with that analogy, as those who use radar detectors to avoid speeding tickets, are using the radar detector to KNOWINGLY violate the law.
What law was broken with the NSA program? Show us the law and the ruling
Here’s a little phrase for ya Darrell, that I learned the first day of law school: “Ignorance of the law is no excuse.”
Yes, As i found out once the hard way, people don’t need to even post a no trespassing sign for one to be guilty of trespass.
There has been no investigation.
And the NSA refuses to provide the means to perform such an investigation in the depth that it would require.
Arlen Specter, Arlen Specter
Underworked, overpaid Arlen Specter.
Who else could toe the line so well?
Arlen Specter, Arlen Specter
Obstinate hypocrite Arlen Specter
He’ll send the Bill of Rights to hell.
Soon we’ll forget why he was once respected.
Is this what should have been expected
from Arlen Specter?
Arlen Specter, Arlen Specter
Won’t be long till Arlen Specter
Is voted out with all the rest of them.
I could explain all day, but the Defender defends, so nothing would get through to you.
Fair enough.. but a reasonable case can be made that the NSA program is a legal use of the President’s authority. It has not been determined to be illegal.
btw, if there was no law broken here, why is there a need to pass a law granting immunity for something that is — in the Defender’s mind — not illegal?
That’s why all these new laws like the PATRIOT Act clearly say “Only to be used in cases of Terrorism”.
And if they don’t actually say that, we must trust the gov’t and a handful of lackeys on Intelligence Committees. It is what any good authoritarian would do.
I don’t know what more I can say, except I don’t believe in concluding as a matter of law that people’s activities were reasonable, or conducted in good faith, before we’ve even completed an investigation on what those activities were.
If there is a “reasonable, good-faith belief” in the program’s legality, isn’t it odd that the people who supposedly hold that “reasonable, good-faith belief” are doing everything in their power to avoid a legal adjudication of their belief? Why fight tooth and nail to avoid a legal ruling, if you honestly belief the ruling will be in your favor?
Because, Perry, when you are defending the liberty of the president, you want to build in those extra layers of protection. Geesh, anyone should be able to see that.
Pat, Perry would like to buy a clue ….
Would that be a faith based legal defense?
Gutless Repuplican Worm
Fully expected something like this after his “my feelings are hurt” letter to Cheney actually stating laws were broken…bwaha ha ha …good ‘ol Arlen…gonna stick up for the Constition and claim he’s the only one doing it.
think I’m gonna be sick
That is because with the collusion of Specter and others in the Legislative Branch the Executive has all but assured it will never see a day in court. That’s what all of this bullshit with Specter is about and why it is so infuriating.
The Administration’s actions and interpretations of the Law would almost certainly fail any legitimate legal test, and that is why the thing they feared the most—a court’s legal ruling—has been effectively rendered moot.
If it was legal, the Administration would be happy to take their chances in court, and with a ruling end all debate on the topic.
Instead they work around the Judicial Branch by changing the laws to fit the crime, issuing immunity, invoking state secrets at every step and making sure no one can possibly have standing in court. All pretty much giving the Executive Branch absolute power.
You’d have to be quite a partisan cynic to see it any other way.
Can there be any doubt Greenwald is an extreme partisan hack?
Wrong. You’re free to disagree, but the President does have a legit legal argument.
With the administration doing everything it can to avoid an actual judicial determination of the program’s legality, it’s pretty ok in my book for a lawyer to conduct an analysis of whether he thinks the program was illegal. Greenwald has done this in more depth than just about anyone.
An extreme partisan hack, because you disagree with his conclusion? Shrug, I don’t think the legal question is very difficult myself; I think the administration would lose at least 8-1 if the issue went before the Supreme Court. As much as Darrell keeps flying off the handle any time someone dares to opine on the program’s legality before there’s been a judicial determination, let me suggest that Greenwald would be THRILLED to have such a determination take place and let the chips fall where they may. Too bad that, to date, the administration has blocked every effort to get this issue before a court, even a completely secret court like the FISA Court of Review.
Unless you have it on videotape that they were acting in good faith! Only a partisan idiot could maintain such disparate evidentiary standards solely based on partisanship.
Can there be any doubt Darrell is an extreme partisan hack?
Then why won’t he make the fucking argument? Do you have any grasp at all on what’s actually being discussed here?
The question is, which ‘1’? What idiot could possibly believe that The Decider trumps The Fourth Amendment–Thomas, or Alito?
Thread Darrelled. It’s pointless as the menu consists of:
1. “Show me the legal ruling”
Well, there has been no ruling because your boy has done everything possible to prevent one.
2. “Well there’s an argument to be made.”
It’s a terrible argument on many, many levels, which has been explained over and over, but that doesn’t matter because see 1 above cobined with:
3. “They’re making a good faith argument.”
There is no blanket ‘good faith’ defense. Plus, you’re assuming facts not in evidence. Additionally, you’re boot-strapping in that the theories you espouse weren’t considered legitimate before Yoo started espousing them. And all of a sudden, in the complete absence of legal precedent there is a good faith basis to believe that the Constitution installs a war time king?
4. “Look a partisan hack gay scoutmaster jackalope. And ppGaz was mean to me, so I win.”
[Bangs head on table]
Good. Then there should be no reason to pass a law that retroactively absolves anyone involved in wiretapping. After all, there is no crime, so why would they need a CYA law?
Greenwald is an extreme partisan hack because he does not allow for any other possible interpretation but his own, then declares his opinion, which is disputed by other legal theorists, to be fact – “patently illegal” program, Bush administration “imposing radical theories of lawbreaking”, etc. Greenwald is a textbook example of partisan hack
Fixed that, too.
Follow with me if you can, Darrell, Greenwald actually takes the time to discuss and dissect the opposing arguments. You can’t even comprehend the arguments so choose to instantly dismiss them. Who’s the real hack here?
The reason it’s a pretty easy case is because of FISA, not the Fourth Amendment. The Fourth Amendment question is tougher. Recall that the Fourth Amendment does not say that every search needs a warrant.
But even with the limited information we have today, I think it’s pretty easy to conclude FISA was violated, based on the administration’s own statements. FISA says, right there in the statute, that it provides the exclusive means by which electronic surveillance may be conducted. The administration didn’t follow the FISA process; therefore, they violated FISA.
The most serious argument for a court to consider is that the President’s Article II powers trump FISA. This is an argument you can make without getting laughed out of court, but at the end of the day, I still think 8-1 is the most likely result. My pal Justice Thomas is the one who has kinda nutty views on executive power (see Hamdi v. Rumsfeld, for example, where Scalia took the polar opposite view from Thomas).
If anyone but the President violated a federal statute on the basis that they believed it to be unconstitutional, they’d be arrested and the issue of constitutionality would be litigated in a court of law. Because it’s the President, it’s not so easy to get a legal determination, and the administration has resisted every attempt to get the issue before a court.
Until a court rules that FISA is unconstitutional in this context, the program remains an illegal violation of FISA in my book. You don’t get to hide behind the “a court hasn’t said it’s illegal yet” defense when you’re the one keeping the issue from being decided in court.
Has another sitting President ever before had to go before a court to obtain permission to monitor suspected foreign enemies outside the country? If not, why then should this President be required to?.. oh yeah, because he took us into an illegal war for oil
I can’t think of a single opposing argument that Greenwald hasn’t addressed, in great detail. That doesn’t automatically make him right, of course, but it means he hardly “doesn’t allow for any other possible interpretation but his own.” He addresses the opposing arguments forthrightly and comprehensively, the very opposite of a “hack.”
As for the “partisan” element of the charge, uh, is Bob Barr a partisan for saying the same things as Greenwald? Is Bruce Fein a partisan? It seems like “partisan hack” is one of those buzzwords you throw around just because it sounds good. You hardly have to be a partisan to believe Bush’s wiretapping program is illegal.
Yup – the 4th amendment question is an interesting one in an academic sort of way and from what I’ve seen the commentators are somewhat evenly split. Orin Kerr says no fourth amendment issues, others argue that there are 4A issues. I think it depends more on the specific facts of an individual case – actual wiretapping of purely domestic phonecalls certainly is dues 4a protection, but I’m less convinced about either large-scale pen register type things or tapping of the domestic side of an international call.
All that said, the FISA argument is a slamdunk, leaving only the ‘war powers’ argument, which pace Steve is almost certainly a loser. Really, read Scalia’s opinion in Hamdi and ask yourself if there’s any way he buys it. Though I think it’s more likely 7-2 as Thomas and Alito are willing to be pretty deferential to executive power.
There’s more than one NSA program, donchya know.
I can’t believe how many times we have to walk through this.
1) He’s not monitoring foreign enemies. He’s monitoring U.S. persons. Yes, the claimed basis for monitoring U.S. persons is to acquire information about foreign enemies; but he’s still monitoring U.S. persons.
2) Every president since FISA’s enactment has had to go before a court to get approval for electronic surveillance of U.S. persons.
When the President says, “this is MY interpretation of the Constitution,” and he refuses to let the legislative branch interfere with that interpretation by means of a statute, or to let the judicial branch disagree with that interpretation by means of a ruling, that’s what we call a Constitutional crisis. No one necessarily gets the final word – no, not even the Supreme Court in all cases – but there’s supposed to be a give and take between the three branches. Not a unilateral declaration by the President that he believes Article II implicitly gives him the power.
If I address ‘forthrightly and comprehensively’ the issue of whether or not the Dallas Mavericks of today are better than the Chicago Bulls of the early 1990’s, I might have a persuasive argument that the Bulls were better, but it would be dishonest as hell for me to definitively declare, as Greenwald had done, that other opinions are “patently” false. It is, after all, a matter of opinion, not fact. That is what defines Greenwald as such a hack
Misleading claim. The targets being monitored are foreign enemies overseas. The President’s program says that they don’t have to treat intelligence gathering different if the overseas target happens to get a phone call from Miami.
And now a brief musical interlude while Darrell desperately looks for answers to the issues you all have brought up on RedState and other right-wing blogs…
(cue Girl from Ipanema)
It usually is, especially seeing as how–unlike Glenn Greenwald–you never manage to make a compelling argument.
Assuming facts not in evidence. Remark stricken.
Look, a jackalope!
How do we know this? Because the President says so?
I feel like I’ve just witnessed the recording of the “Bitches Brew” of Non-Sequitorial Jazz. Truly an honor.
Title of Greewald’s
From the WP article:
Nowhere in the article was it mentioned that the Senate was seeking to Pardon the President. But hey, who needs to bother with facts when you’re a dishonest partisan hack?
Perhaps Greenwald’s “compelling argument” is that the President seeks to pardon himself
But that’s just not true at all, is it? The existing laws and regulations already deal quite clearly with the situation where you’re monitoring a foreign person and they happen to get on the phone with a U.S. person – you don’t have to hang up, you just have to redact the U.S. person’s name when you disseminate the call transcript, and so forth. There’s nothing controversial about that.
But that’s not what the program is about. The program involves wiretapping “the international communications of people with known links to al Qaeda and related terrorist organizations,” to use the President’s own words. That’s quite different from saying that we only eavesdrop on calls made with al-Qaeda.
What puzzles me and everyone else on this side of the issue is why, if there really is “clear evidence” that a U.S. person has links to al-Qaeda, why you wouldn’t just go to the FISA court and get a warrant to eavesdrop on them. That’s what the statute requires, that’s the way it’s always been done since the statute was enacted, and it sure would give everyone a lot more confidence that those are the only people being eavesdropped on.
Excellent point. I’ll stop asking you for factual support of your claims forthwith.
It’s both, reallly–on the one hand, The Fourth Amendment requires probable cause for a warrant, and apart from that, FISA is the sole ‘reasonable’ method for this approved by Congress. So if he didn’t get a warrant, and he didn’t go through FISA, then he’s breaking the law. QED.
Which existing law would that be which ‘deals with’ what can and cannot be done when monitoring suspected terrorists in Libya or Somalia?
John S. Says:
/me clears throat
Boorish, hacked and unconvincing,
The Defenders keep on mincing,
And when they speak each one that speaks goes “DURRRR!”
When they talk it’s like a jumble,
Of words and arguments that are so muddled,
That when they speak each one that speaks goes “DURRRR!”
Oh, but I watch them so sadly,
How can I tell them they just don’t know?
Yes, I would say they act badly
But each day when they turn on TV,
They fawn over Bill O’Reilly
If that was what the President was doing, you might have a point.
First it was only calls originating outside the country. To known AQ affiliates. Then it was a call originating in the US, but to outside the country. Then it was purely domestic calls. Then it was the phone records of millions of average citizens. The point is no one knows what the program is doing and no one has oversight. That is unacceptable. Congress writes laws. The Executive obeys and enforces them. The Courts—not the Executive or his AG/lackey—interprets the law.
This isn’t about preventing the President from protecting the country. This isn’t really even about partisan issues. There already exists a perfectly legal mechanism to do exactly what the President perportedly wants to accomplish—the FISA Court. He can even seek court approval after the fact. But somebody needs to watch the watchers.
In summation, since you cannot prove to me and neither has the President, that he is monitoring on foreign soil, he has no choice but to abide by FISA. He broke the fucking law Darrel. Wake the fuck up.
If that person is a US ‘person’ inside the US, I agree with you. Do you have any evidence that the scope of the NSA monitoring program involves targetting of US citizens within the US without a warrant?
Pb – 4A does not require a warrant for all searches. There is a reasonable ‘border search’ argument to be made for phone calls across international boundaries, for example.
The statutory argument is much stronger because FISA is explicit that it is the sole means not simply for wiretap warrants but for wiretapping period.
Show us the evidence where the President’s NSA program targets US citizens/legal residents for warrantless monitoring. Sounds like you are ASSUMING a lot
FISA!!!!!!!!!!!!!!!! [bangs head on desk]
If it was a call from Libya to Somalia, Bush could do whatever the fuck he wants! He could post the transcripts in rebus on the White House website for all I care.
But when he starts monitoring US citizens on US soil he needs a goddamn warrant. And any one of the calls he claims to cite would be more than enough to get that warrant, even after the call took place. He has no viable excuse NOT TO BE FOLLOWING THE LAW! Which can only mean one thing, there is a reason they want no court oversight. They are abusing the program.
Christ in all liklihood any evidence originating from this bullshit system would be inadmissable. Wait, they have a whole kangaroo court set up for that. Never mind.
That was the whole point of the original NYTimes story. And the defense offered was never ‘we aren’t listening to U.S. persons‘ (FISA defines it as persons, not merely citizens) they’ve essentially admitted that portion of it.
Any evidence the NSA program is wiretapping phones here in the US without warrant? No?
Since everything about the program is too fucking secret for a secret court set up explicitly for this purpose, it is unlikly that I have that evidence laying around. Which, once again, is the point.
There is no such thing as a Presidential Oath or even War Powers statute or ATUMF which grants the President the right to tell the other two branches of the governement to “Fuck off. You have to take my word for it.”
Has Darrell been getting dumber? Or is he just drinking more during the day?
Attorney General Gonzales:
This pretty clearly states that U.S. persons are subject to monitoring of their international calls so long as the government believes them to be affiliated with al-Qaeda. And you know what, I’m totally for that, but if they think a U.S. citizen is affiliated with al-Qaeda, they ought to get a warrant.
Article II gives the President the clear right to tell the other two branches of govt and everyone else to ‘Fuck off’ if they try and interfere with his right to grant pardons, sign treaties, or command the military.
I think we have agreement that the Prez should not be allowed run wiretaps on US citizens or legal residents in the US without a warrant. From what I’ve read, that’s not what the NSA program does
Agreed. But once communication goes outside the US, it seems impractical to get a warrant for each piece.. there is likely a tremendous amount of the communication (phone, fax, emails, etc) which gets caught up in the intelligence nets. As I understand it, if a US person’s communication with a suspected terrorist is used, it is treated as ‘forbidden fruit’, and cannot be used against the US person. Doesn’t sound unreasonable.
You’ll need to cite something to back that up. AFAIK no branch of government has any unchecked powers.
‘Used’ in a court of law it would be forbidden fruit. There are other ways to use the info. If no one is allowed to watch what you do you can do anything you want. If half the country will believe you when you say you’re only using the power to help save their scared little lives then you can definately get away with anything.
Well, that’s a whole other interesting discussion. If the law doesn’t work…you AMEND it. You do not IGNORE it.
“But it’s an emergency” Darrell likely replies. Amazing how when you get extra super-special poweres during an emergency how frequent such emergencies will become.
No, you wouldn’t have to get a warrant for each piece. If you have evidence that a U.S. citizen is affiliated with al-Qaeda, you show that to the FISA court, and you get a warrant allowing you to monitor all their communications.
Just for the sake of argument, if FISA really did require you to get one warrant for the phone, another warrant for the email, etc. – which it doesn’t – that would be a trivially easy amendment to the FISA statute.
The Attorney General has admitted, as I quoted above, that if they believe a U.S. citizen is affiliated with al-Qaeda they will monitor his international communications without a warrant. I think you just agreed that they shouldn’t be doing that.
Game. Set. Match?
That argument assumes that the law in question trumps Presidential authority in that area.
The likely rationale is that international sweeps with spy planes and electronic nets gathered such massive amounts of intel, that there would be no way in hell they could ever get warrants for every piece of communication which originated in the US
I stated that poorly. I meant to say get a warrant for each piece of international communication.
That’s a stickier situation, once communication leaves the US. Sounds as if they are not permitted to run wiretaps without warrant
Just an observation. I think there’s little doubt that lefties, by and large, tend to be far more likely than conservatives to be obsessed with ‘winning’ rather than finding the truth. I can’t tell you how many times I’ve heard libs boasting of having having “smacked down” or “called out” opponents in argument. What is it about the liberal mentality which makes this obsession so prevalent? I’m sincerely curious
I think the whole thing hangs on the President asserting that using the NSA is using the military and no one can tell him how to command the military since he has an Authorization to Use Military Force.
What he doesn’t have is a Declaration of War. Nor does he have a compelling reason to command the military against persons in the U.S.
There are specific laws about spying on Americans. The CIA can’t. And anyone else needs a warrant to do electronic surveillance. Period. He is trying to create loopholes around that, but the FISA statute is very specific that the FISA Court is the sole means to doing that legally. The fact that he has ordered surveillance outside the scope of FISA is a violation of the law. And until that law is deemed unconstitutional, what he did is illegal. He knows it, Specter knows it, and that is why they are doing everything possible to make sure this program never sees the inside of a courtroom.
If you don’t see the ridiculous self-contained irony here then there is truly no hope for you. You’ve spent the entire thread decrying ‘partisan hackery’ yet it’s the lefties who do things like that…
Please. Stop it. If you make me laugh any harder, I’m going to rupture a lung.
that’s a good question.. Sounds like you’re suggesting that if the target of the surveillance is a US citizen in the US, should the NSA program be able to listen in on their international communications without warrant. If that’s what you meant, that’s a tough question. I mean, if I call Romania, don’t I accept the risk that my phone call may be monitored by Romanian police or military, or another govt. entity? I’m going to have to think on that one
Here’s a sincere query back atcha. If a statement like Steve made, referring to statements you made in this thread points out an inconsistancy in your stance, will you admit you have a problem with your argument or that it is emotional rather than factually-based? I don’t need to “win” nor do I need to convince you or anyone else they are wrong, but part of having an honest debate is being honest about what you said.
When you say:
And Steve then points out that the AG and the President admit to doing just that, you should then have a problem with your defense.
Putting it that way, I see your point. But I haven’t seen conservatives boasting of having ‘smacked down’ or ‘kicked ass’ in arguments to the extent I hear it from the self congratulating libs.
In Steve’s examples, the qualifier was ‘international communication’ overseas. I completely agree that we should get warrants to wiretap US citizens inside the US. That is not what the NSA program is doing from everything I’ve read. Steve raises an interesting scenario, however – What if US citizens inside the US were targeted, but only their international communications could be monitored without warrant. Should that be permitted? I’m not sure.
You posted this while I was writing the last post. That’s all I ever “wanted” from my “victory” Darrell. It’s not about winning it’s about provoking thought.
If you are a law-abiding citizen, and I assume you are, I think you should be able to place a call to Romania, your mother or anywhere else with an expectation of total privacy at least from your own government’s side of the call. If there is reason to suspect you or the person you are calling of something nefarious, the governement should have a warrant, and can get one easily. That way I can trust they are using the program properly, rights are protected, and that evidence gathered is actually admissable in court.
Once they have that warrant, they can tap the hell out of you, me or anyone else that is a legitimate person of interest.
What I am NOT willing to do, nor should you, is trust that with no oversight, before, during or after, ANY governement granted absolute power and immunity will not eventually abuse its power.
The answer, per FISA, is explicitly “no”, with the 72 hour exception, they cannot listen in those circumstances. Not just a U.S. Citizen, but a U.S. Person (which is defined in a broader fashion by the FISA STATUTE)
Well that depends on Romanian law. It also impacts the 4A claims as mentioned above – but the statutory FISA provision still holds.
I gotta run. It’s been a pleasure. And I might add, after banging my head against the desk (so to speak), even Darrell, through his stubborness, contributed to some good back and forth today.
Have a great weekend everyone.
Darrell, you really need to understand this.
The President cannot claim “My authority trumps this law.” — this is the check the Legislative branch has upon the Executive. The President cannot declare a law unconstitutional — this is the check that the Judicial branch has upon the Executive.
The Preisdent *can* file suit to test the constitutionality of a law. The President *can* ask Congress to amend the law.
Do you disagree with any of the above? If so, your opinion is completely irrelevant to this discussion, for the statements I made above are true, and you can safely skip the rest of this post.
The relevant bits of United States law regarding electronic surveillance can be found in US Code Title 50, Chapter 36, Subchapter I http://www4.law.cornell.edu/uscode/50/usc_sec_50_00001802—-000-.html
In this, we find lots of interesting, germane bits of information, such as exactly what types of surveillance require a court order and what hoops the President has to jump through in order to satisfy this law. It’s all been hashed out innumerable times since this story broke, but feel free to read over the 11 Subsections of the law.
Your argument boils down to “No law can trump Constitution-granted powers of office”, if I am reading you correctly.
So, fine. For the sake of argument, let’s posit two things: that you are correct, and that FISA does just that.
He still can’t ignore the law, dude.
That’s the funny, tricksy thing about duly-enacted legislation. Until the courts say “This is invalid law as written”, IT IS STILL LAW. I’m not going to argue whether that’s as it should be or not. I’m merely pointing out that once a bill is signed into law, it *is* the law of the land until it is either amended or overturned.
Until you can point me towards a law that claims the Executive branch of our government is not bound by the strictures of the US Code, your argument is completely, totally invalid. (And, by the by, good luck with that. US v. Nixon kinda settles it in the other direction, but hey, knock yourself out.)
I’m persuaded by your argument on that one. But all we have are a couple of vague statements, which conflict with other statements declaring the program limited to targetting of foreign suspects overseas.
So then, do you agree that the US government, in the course of monitoring suspected terrorists overseas, has the right to monitor all communication entering and leaving that foreigner’s home and/or place of business without warrant, even when that foreigner receives phone calls from Boston and Phoenix?
Sure he can. Congress cannot pass a law which usurps the President’s authority to grant pardons or sign international treaties.
I should have written that the President has no obligation to follow such laws should they be passed.
Darrell, you *really* need to read the text of FISA. Specifically, subsection 1802.
It lays out, in almost excruciating detail, when a warrant is needed. The very first portion of ss1802 reads as follows:
Once he starts receiving phone calls from Boston and Phoenix, ss1802 (a)1(B) *no longer applies*, and they have to go get a court order. The law is very, very specific about this.
Fight the good fight, John D. You may find it akin to wrestling a waterfall.
No. No. A thousand times, NO.
He must SUE to get the law overturned, or have Congress amend the portions he finds infringing upon his powers. Once a President signs legislation into law, IT IS LAW.
This is where the entire quaint “Rule of Law” comes into play. Either you follow the laws, or you don’t. Once you choose the latter, we are no longer a nation of laws.
Or boxing a glacier.
His job is to faithfully execute the laws of the land IIRC. He can’t ignore law and the Congress is fully within their power to make a law that trumps his constitutional powers. It would be a waste of time because he wouldn’t sign it but they can make the law if they want.
Just want to empahise the “A” in this statement. It’s not just those laws that the current president signs, but those that come before as well. A Presidential election is not an all-purpose legal solvent.
The President’s legal argument is basically “Since no one disputes that the President has authority to monitor suspected foreign enemies overseas without warrant, we disagree that this constitutional authority suddenly changes just because the foreign suspect receives a phone call from Florida or South Carolina”. In other words, he is saying that FISA has no more right to limit his authority to monitor terrorists overseas than they do in limiting how he grants pardons.
It is not some shredding of the constitution as many on the left (and some libertarians on the right) are making it out to be. It is a constitutional pissing match between the President and Congress. You may disagree with the President’s interpretation, but he most definitely has a case.
How can there be a law that trumps presidential authority? It needed to be signed by a president to become law. If by some weird circumstance there is a law on the books that trumps a president he still can not ignore the law. He sues to get it ruled unconstitutional.
Then why won’t he argue his case? Why is he blocking any move to put this issue before a court where he can make his case?
Well, that would first presume the conservatives had, in fact, won an argument or been proven right about something.
Hard to brag about losing. “Woohoo! We couldn’t get the Paris Hilton Tax Cut through! Yeah! We fell on our face with the No Gays Allowed constitutional amendment! Awesome!”
Neither is Congress or the Judicial branch superior to the Executive. They are ‘co-equal’. Congress can pass a law granting themselves all sorts of powers. That doesn’t mean the President or the Judicial Branch is beholden to them.
They are beholden to the law. If the law was signed by a president and wasn’t challenged or withstood the challenge of constitutionality they must follow the law. Congress only passes a bill, not a law, it only becomes law if signed by the president. Thats the check on Congress. If the president (or any previous president) signs it he and every citizen in this country is bound by it.
Someone needs to learn more about how our government works
I hope this new information helps
Alright, I haven’t left for the weekend yet.
Thanks. I also agree with what you said here:
Bear in mind I am neither a lawyer nor a Constitutional expert, this is merely my opinion, and what I think is and should be true…
If the NSA, CIA or whoever is “wiretapping” or monitoring an overseas phone, IMO, they don’t need a warrant. Calls to and from that phone are fair game for surveillance on that end. Just as the FBI tapping a mobster also gets to hear the call for pizza just as clearly as the call for a hit. But if the FBI then wants to start monitoring the pizza parlor’s calls, they need to get a new warrant.
When the FBI can listen to all the calls the mobster makes or recieves, they don’t then get to play “Kevin Bacon” and start branching out to monitor the other calls of the people he talks to without seeking new warrants.
Am I making sense here?
I suspect that the NSA used foreign calls to open a door to a room that they should not be allowed in. Once there is communication with a person of interest in Jordan or wherever, I think they are then using that as an excuse not to monitor the Jordanian phone, but the US caller’s phone. At that point I think, and FISA requires, that they get a warrant to monitor that US caller.
I suspect you agree, Darrell. At least with the needing a warrant part.
I also think they were not content to wait for specific communication at overseas targets, but started casting a net over lots of international, and possibly domestic, communications in hopes of finding some links. I also think that is a no-no. And I hope you agree with that.
The big difference is how much we are each willing to trust what Bush and the Administration is telling us. I’ll concede that I don’t trust Bush at all. You probably trust him more than you should. That is the partisanship coming into play.
The deal-breaker should come when the rule of law gets tossed aside. You might not believe me, but I would be saying exactly the same things if Al Gore was President.
As John D has valiantly tried to convey, thinking, believing, wishing or hoping a law is unconstitutional does not make it so for Bush or anyone else. It takes a Court to say so, and until one does, I am not satisfied with anyone else’s word on it.
No sensible person should be.
Also, I’ll take that Lane Bryant ad over the Coulter or run of the mill PJ ad every day and twice on Sunday.
Darrell, there is precisely *one* way to rule a law unconstitutional. That power is solely vested in the Judicial branch.
I’m really not sure why this is even in dispute, to be honest. This is Civics 101 stuff.
The three branches of government are “co-equal”, not “equivalent”. Neither one has a superior position to the others, but they all have *different* areas of authority. The Judiciary cannot pass a law, and the Executive cannot declare a law unconstitutional.
If the Legislative branch passes a law granting themselves all sorts of powers, and the Executive SIGNS OFF ON IT, then you, frankly, are dead wrong. Until a suit is brought to test the law, then yes, the Judical and Executive *are* beholden to obey that law.
I’m really not sure what country you are describing, but it sure as hell isn’t the USA.
And why, if the administration is acting in good faith, is Congress being asked to provide immunity for anyone involved in these “legal” acts? The talking points of the Defenders is following a similar pattern nonsensical word mincing of many of their past arguments:
OMG someone leaked super-secret information about secret prisons in Europe that don’t exist!
OMG someone leaked super-secret information about the NSA tracking the phone calls of millions of Americans, but the NSA isn’t doing that!
OMG the President isn’t violating any laws so that’s why they won’t let an investigation move forward and why Congress wants to pass a law providing immunity to anyone involved in this perfectly legal NSA tracking that doesn’t exist.
The mental gymanstics needed to accept these ideas as being consistent is truly amazing.
And before Darrell jumps in with the “overriding the veto”, yes, the law can pass that way as well. Which is as it should be.
Either way, it is the Law, and the President cannot simply disregard it, even if no President ever signed it.
By the way, that ain’t the case with FISA as far as I know…
Right now that’s just a suspicion of yours. Of course, with any power comes the potential for abuse. That’s true in many areas.
And I had assumed that NSA nets ala Echelon, had been sifting through international communications for years now
Darrell, please go read ss1802 I posted above.
You may not believe this, but the President does not have a Constitutional authority to monitor suspected foreign enemies overseas without a warrant. He has that authority granted to him by the FISA statute (USC Title 50, Chaper 36, Subchapter I, subsection 1802 (a)1(A)), which specifically spells out a limiting clause for domestic calls in ss1802 (a)1(B).
If you believe that he has a Constitutional authority to do so, please quote the section of the Constitution that grants it to the Executive branch, as well as explaining why the FISA statute specifically grants the Executive this power if it was already inherent.
While trying to find out how FISA passed I came across this nugget of the Act itself [emphasis mine]:
One by one.
Monitoring the US person seems to be the whole point of the NSA program. Seems to fail the test for permissable warrantless searches.
Even if they met the reqirements of the first part, they still need to report to a Court AND Congress what they are doing.
I would argue this is an area that should be amended, and is the place Bush should have started to work to have the law changed rather than ignore it.
They did, and it was illegal, hence the amnesty.
It doesn’t. Your argument is still crap. If they override his veto he then sues, in the Supreme Court, to have the constitutionality of the law challenged.
BTW, would your response to me be considered a righty ‘laying the smack down’? I know you didn’t say the words but are you going to deny you think you won our argument with that lesson on veto?
Give that man a cigar. Whether or not it’s a shredding of the constitution is the question at issue, Darrell, and it doesn’t matter whether the White House “has a legal argument.” Legal arguments are like assholes — they’re free on the internets. What matters is whether the legal argument is persuasive. And around 1800 or so it was determined that constitutional pissing matches are resolved by persuading the Supreme Court. So let’s go to court, shall we?
Also there’s the fact that the White House is doing all the pissing, while Congress keeps asking when it’s going to stop raining. Maybe Republicans should start calling themselves the Golden Shower Party instead of the Grand Old Party.
Sure he can. If Congress passes a law taking away the President’s authority to grant pardons for example, the President can disregard the hell out of that law and be fully within his rights in doing so as the elected President.
It’s pretty much universally accepted that the President has constitutional authority to monitor foreign enemies overseas without warrant. The President is saying that this authority does not suddenly end if the foreign enemy receives a call to his home which originated in Chicago. If it turns out they then use this info and wiretap that Chicago number without warrant, I’m perfectly willing to change my position.
I assume that Congressional oversight is keeping some tabs on potential abuses.
Okay, so what about the monitoring of millions of calls made by ordinary Americans? Not the contents (that we know of), but at least the to, from, date, time and call length. That’s yet another NSA program that is out there and one that the administration thinks is perfectly legal.
Where in the constitution does it say the president can disregard a law?
Our president is bound by the constitution. Period. It doesn’t matter what’s universally accepted, it matters what it law.
I agree with you, hence my choice of words “widely accepted” interpretation of his authority as CIC, an interpretation that has held forth since the founding of the country from what I’ve read. My point is/was, since no one disputes that the President has that authority to monitor foreign enemies without warrant or special permissions, quit pretending it’s some horrible overreach on the President’s part to claim that his authority doesn’t suddenly end just because the foreigner gets a phone call from Los Angeles.
If Bush is doing something illegal, then move for his impeachment.
Darrell, this is the second time you have asserted this.
Unfortunately, you are wrong.
It would be a slam-dunk to get it ruled unconstitutional, true. But until he does so, it is a law. You know, those things he swore to uphold when he took his oath of office?
I’m not sure why you are having difficulty with this concept. There are mechanisms in place to get a bad law overturned. They had worked well for 225 years. Why did 2001 suddenly make them useless?
(BTW, if you say “9/11 changed everything”, I swear to God I will come through your monitor and slap you into next week. :P)
I sure as hell don’t accept that, for reasons listed upthread. I agree he has that authority, I simply disagree he has it via the Constitution, and disagree that the situation does not change when a “US person” enters the equation (“US person” as defined by 50 U.S.C. §1801), since the law actually *says* the rules change when one enters the picture.
Now that is funny.
It’s a tad early to suggest that. Most of us that disagree with these monitoring programs want an investigation. If it turns out that the administration violated the law, but did so in good faith, I can’t say that I’d support impeachment for the breaches. Censure, maybe. Impeachment is a tool of last resort. The fact that Congress now wants to pass a bill granting immunity for the wiretapping shows that the good faith argument may have flown out the window.
I see no problem with that program from what I’ve read about it. Extremely minor intrusion on privacy (conversations not being listened in on) in exchange for security. There are tradeoffs between privacy and security. This one does not strike me as an unreasonable one.
Bush did follow legal requirements by first consulting with the NSA legal counsel and the US Attorney General to get their approval. He also followed congressional oversight rules.
But we aren’t discussing the reasonableness, we are discussing the legality. The NSA is doing what effectively amounts to a pen register tap on wholly domestic calls. Millions of them. You and I may disagree with the reasonableness of the program, but the legality is not in question, unless you think the AUMF argument applies to millions of innocent Americans.
OK, my last post on this topic, since I am not sure if I will ever convince Darrell about this.
The authority he has to monitor foreign overseas communications has to come from somewhere. Since it’s not in the Constitution, it therefore comes from a duly-enacted law of the USA. I’d hope we are in agreement to this point.
FISA, enacted in 1978, supersedes all previous laws with respect to foreign intelligence gathering. This is why 50 U.S.C. §1802(a)1 starts with “Notwithstanding any other law…”
This means that FISA is now the definitive law of the land regarding foreign intelligence gathering.
Since further down in §1802 it specifically discusses what happens when a US person becomes involved with the communications (and very specifically moves it into the “needs a warrant” camp), I’d say that yes, it *is* a horrible overreach, at least as far as his claiming that he doesn’t need a warrant.
I am not being partisan here, Darrell. This is a dangerous expansion of Executive power. We have a law, on the books, crafted to cover this very situation, and it is being ignored. We have an insane amount of bullshit being flung into the air on this issue with the sole goal of obfuscating what is happening.
This is why I get worked up — people latch onto some incredibly minor point in an argument and use it to say “You got this wrong, ergo all you said is invalid”. Which is garbage, to be honest. It’s also why I link to the text of the law. You do not have to take my word for any of this — you are free to go read the law, as it stands today, and use that as a starting point for filtering out the bullshit.
You do not have to agree with me on any of this. I sincerely doubt I will ever change your mind. But what I will not do — ever — is allow false statements of fact to stand (like your “The President can ignore a law he deems unconstitutional” line of reasoning. I can accept you sincerely believe that he has that authority, even though the laws of our country say he can’t).
I wish you the best, and hope you dig through the real text of the law, rather than accept what some talking head says the law is. Read. Learn. Live well.
Speaking of ‘good faith’, how many of you believe that the NSA leakers, who leaked details of this national security program in violation of their secrecy oath.. how many of you believe the leakers acted in good faith?
Sorry, but we are not. His authority to monitor foreign terrorists is constitutional. It is, and has been since the founding of the country, the widely accepted interpretation of his constitutional powers as CIC, to include monitoring of foreign enemies. Constitutional authority which cannot be overriden by FISA.
Couldn’t really say. They could have leaked the information because they thought what they were witnessing was illegal or at least unethical and beyond the mandate of their organization, or they could have done it because they disliked the Administration. Being a geek that thinks social network analysis is really freakin’ cool, I can see how NSA wonks would think it was cool to work on too. But I’m sure some of them understand, much better than I, the dangers of putting that kind of power in the government’s hands.
You must be just as infuriated as the rest of us, Darrell, that the administration has stonewalled every effort to investigate its activities. It seems safe to say that you would rather know you are right than simply take their word for it. Or am I assuming too much?
Why did the jackalope cross the road?
It is not constitutional. It ain’t in the constitution. Its extra-constitutional and is detailed in FISA. FISA is the place where Bush gets his authority to monitor foreign communications. You can’t say FISA can’t overrule constitutional authority that doesn’t exist. The president, via FISA, can monitor foreign communications absence war so his power as CIC has no bearing here, this is not an extension of that power.
To get to the next unrelated tangential argument.
Thanks for all your posts. Despite your unsuccessful attempt to box Darrell the Glacier, I sure learned a lot more about this topic than I previously knew, and I’m sure I’m not the only one.
The constitution gives the President explicit authority to act as commander in chief. His authority as CIC has been widely accepted to include monitoring of foreign enemies. I’m sorry if you’re too ignorant to know that.
Lots of powers are not spelled out in the constitution. For example, who says the Supreme court gets final say on the constitutionality of a law? That power is not explicitly granted in the constitution. But historically, their authority has been interpreted to include final decision makering power as to what is and what is not consitutional.
Tim, I’ve got news for you. There have been lots of uninvestigated secret govt. programs carried out over the past 20 years. Let me know when the NSA is used to blackmail and harass innocent Americans.
Bullshit, it’s been legal for over 25 years. Smith v. Maryland (1979) says that government collection of phone numbers called does not violate the Fourth Amendment. The Court found that callers cannot have a “reasonable expectation of privacy” in the numbers they dial. Look, you may not like the law, but after 25 years, don’t suddenly come screaming about ‘illegal’ gathering of phone records just because GW Bush is in the White House.
America was founded as a Republic built upon the idea of majority rule. But the tyranny of the masses, was held in check by the constitution and adherence to the rule of law. You seem to think this is no longer the case.
Even a Civics 101 lesson would tell you that the Judiciary gets the final say on the constitutionality of laws. It is one of their few checks on both the Executive and the Legislature.
What a wonderfully concocted false analogy. Unfortunately, you cannot rest the conclusion of your argument on the previous statement where you defy one of the basic lessons of American government:
You did learn this stuff in school, right?
Jesus. I don’t even know where to begin.
It is assuredly *not* “widely accepted” that there is an inherent power as CIC to “monitor foreign terrorists”. If there was, why, exactly, would Congress feel the need to GRANT THAT FUCKING POWER IN 1978 VIA FISA? Even the RNC talking points du jour attempt to tie in the AUMF to the CIC powers. You can’t even get that right. I’ll say it again — this entire defense is utterly specious. If it is not in the Constitution, then it is not a Constitutional authority. You are espousing a theory here that is not supported by the text.
There is a very good analysis of the Court’s view of the “inherent” powers of the Executive branch in YOUNGSTOWN CO. v. SAWYER (343 U.S. 579 (1952)), often called the Steel Seizure case.
From Justice Jackson in his concurring opinion:
Congress has passed legislation, signed into law in 1978 by Carter, that outlines very specific rues regarding foreign espionage. More properly, it is the *exclusive* law regarding this topic. When a President claims an inherent authority that goes against this legislation, it falls into category 3 above.
I am so damn tired of the shifting goalpost dodge.
Your assignment, Darrell, is to start backing up your wild ass claims with either case law or USC references. No more of this “it is generally understood” crap.
Oh, and as far as judicial review of laws? That dates back to colonial times and the Privy Council. The US Constitution specifically grants the Supreme Court “…appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” If you want to study the case that fully codified that, read the Court’s reasoning in Marbury v. Madison (5 U.S. 137 (1803)). All that case does is *clarify*. It does not grant one whit of power to the branch. So, yes, the Judicial branch has the power to determine the constitutionality of laws granted to it by the Constitution. I have no idea why you would choose that particular power of the Judicial branch as not being granted via the Constitution.
I’m serious, Darrell. You need to start doing some research into relevant law prior to spouting off about this crap — both of the partisan sides give incomplete versions of stuff (“spin”) or flat out lie (“lie”). Go. Learn.
Umm, the Constitution?
Face it Darrell, the Constitution calls for a fairly weak executive. That’s a very good thing. Just imagine if Bush had lost his suit against Gore in Dec, 2000 and it was Gore saying he had these inherint rights as CIC. Pretty scary ain’t it?
Are you serious? You are actually making the argument that the President has the power to monitor foreign enemies, only because of, and when FISA “granted” them to the Executive branch in 1978? I initially thought you weren’t a moron
FISA itself acknowledges this authority of the President
The President is responsible for defending us against foreign enemies. The constitution explicitly gives him power of CIC. And you argue like a halfwit that the CIC powers exclude the authority to monitor our foreign enemies? Jeezus
Show me where the Constitution grants the judiciary that power. And the constitution calls for a ‘fairly weak’ judiciary and strong executive branch. You couldn’t be more ignorant if you tried
Hamilton wrote in the Federalist 78:
I never said it was weakest I said weak. I’ll show you where it says the judicial branch decides constitutionality after you show me where the constitution calls for a strong executive. Keep in mind the executive powers are spelled out in the second article and the framers had just won a war where they rebelled against a strong executive.
The judiciary is weakest because it can’t do anything until called upon to act but its still pretty powerful since it can overturn law.
Look, argue all you want that the President’s constitutional authority to monitor foreign enemies doesn’t justify doing the legal end run around FISA. But when you start arguing that the President, our country’s Commander in Chief of the military, has NO authority to monitor foreign enemies except those powers granted him by FISA in 1978.. it makes you look like a real dumbass.
I request case law or USC references, and you give me partisan crap. Hint: Opinion Journal is not now, nor has it ever been, a legal journal. Amazingly enough, neither is the Federation of American Scientists. Your first document is simply a statement of opinion given to the Senate Committee on the Judiciary, by a lawyer. You know, those guys who appear BEFORE the judiciary to argue cases. His opinion and mine are equally valid as opinions. You need to be quoting laws and judicial opinions. Chop chop!
The President has the authority to monitor our foreign enemies. I have never — not once — denied that. Congress, however, passed legislation, that was signed into law, that delineated the proper procedures for gathering that intelligence. I will keep repeating this until you finally get it: Once a law is enacted, it applies to everyone — you, me, John Cole, Tim F., and yes, the President. If the law encroaches on the President’s constitutionally-granted powers, IT DOES NOT MATTER. Until it is challenged, in court, and *found* to do so, the law stands and binds us all.
I’m going to let you in on a little secret: I believe portions of FISA to be unconstitutional. Where you and I differ, however, is that I have 200+ years of history on my side. Once the Executive signs a piece of legislation (or its veto is overriden), it is the law of the land, and must be followed.
It’s a theory espoused by
Carl SchmittJohn Yoo about the unitary authority of the Executive. It’s the same line of argument about unenumerated powers granted to the Executive by some Jackalope.
The larger question is much more complex and outside of my scope of knowledge — but this is the blogosphere so I’ll type anyway. From what I vaguely recall from college days, there is a constitutional crisis in a situation like this. The Executive is claiming (I guess?) that the Legislative branch is stepping on its Constitutional authority (via FISA). The easiest way to resolve the issue, barring agreement between the Exec and Leg, is to have the Judicial branch rule on it. Of course, if the Executive branch is ruled against and it still feels that its authority is being overstepped, no two branches can trump the granted authority of another branch (except through an amendment).
In this situation we have the Executive claiming power and the Legislative branch retroactively covering the Exec’s ass. So there is an agreement between the two branches, solving the Constitutional issue, yet the original question remains unresolved. Did the Executive actually violate its Constitutional (or in this case statutory) authority?
In a non-single party government, the issue would have been investigated, taken to the court and ruled on. If the Executive lost then censure or impeachment would occur based on the severity of the violation (the ultimate check on the Executive). Of course, none of this will happen with a one party government in power.
IANAL, but wasn’t there a SCOTUS decision that said no two branches may override the granted authority of another? Meaning no two branches can gang up on another to take away its Constitutionally granted powers (barring an amendment, I would think).
No? Must be convenient to have such a short memory.. you wrote:
Yep, that’s what you said
Uh, Darrell, I hate to break this to you but the point Hamilton is trying to make is that that the Judiciary is weakest in the sense of being reactive rather than proactive. Unlike the Exec and the Lege it cannot take any action on its own. It can only referee disputes that are placed before it.
By no stretch of the imagination is Federalist 78 incompatible with Marbury v Madison, or with the historical consensus that SCOTUS is the arbiter of constitutionality. What is it that you think “Neither Force nor Will, but merely Judgment…” was supposed to mean exactly? How about “inflexible and uniform adherence to the rights of the Constitution, and of individuals…”? Note that he doesn’t talk about the rights of “governments,” or of any particular branch of the government, but rather the rights of “individuals.” And Hamilton wasn’t even a wild-eyed radical like, say, Jefferson (who would probably have loved Yearly Kos).
Look, I know it’s hard to admit when you’re wrong, but it’s pretty fucking plain that the founders would have wanted W given the bum’s rush. Even the closet monarchists would have disapproved, if only on isolationist grounds.
Anyway Marbury v Madison was only 16 years after ratification and only 15 after Fed 78. You can’t just throw it out because you’re scared of terrorists…
Darrell, I’ll say this slowly so even you can grasp it.
The two statements you quoted are not identical. Read them carefully.
I have not denied the President has the authority to monitor our foreign enemies. I do deny that the President has an inherent power as CIC to monitor foreign terrorists.
In case you *still* are too stupid to grasp it, I categorically reject, on Constitutional grounds, the entire unitary executive theory. The Executive does not trump the other branches of our government. We fought a rebellion to throw off the yoke of a king, and you believe we turned around and immediately installed a homegrown one?
Remember what you are up against.
You are a twit.
Congratulations. You have successfully proven beyond a shadow of a doubt that you know very little about how the American government was meant to be.
Just to echo someone upthread – thanks for your very lucid posts on this subject, John D. And rest assured that we feel your pain. Oh, how we feel it.
Darrell is not a complete twit.
If you review the text of the constitution it is not entirely clear that the constitution grants the power to the judiciary of overturning Congress’ laws.
Unfortunately for Darrell, this little issue was settled 203 years ago in Marbury v. Madison.
There are better historians and lawyers than I who can go all Con Law 101 on Darrell’s ass. It is not worth the time and effort to lecture a mule.
Let’s be clear. I claimed ONLY that it wasn’t explicitly spelled out in the constitution that the judiciary has authority to declare any law they don’t like unconstitutional. I was right, they were wrong, but I’m the “mule”, right nimrod? If you re-read my comment about Supreme court constutitutional powers, it was entirely in the context of making the point that not all powers of each branch are explicitly spelled out in the constitution.
So Tulkinghorn to his credit agrees that these other dumbasses like John D. and idiots like tBone who agree with his ‘valid’ points are full of shit. Marbury v Madison btw, was a surpreme court finding, not in the constitution, and it did not definitively settle the matter.. but that’s another discussion. Point is, those powers were not explicitly granted in the constutition, but they are a widely accepted interpretation of constitutional authority
Ignorant dumbasses like John D and the ever present band of self congratulatory leftists eager to give each other reacharounds over the stupidest nonsense because they don’t know any better.. they queer the discussion with stupid shit like arguing over well established points, such as the President’s constitutional authority to monitor foreign enemies.
John D was so fucking stupid as to assert that Presidents NEVER had such authority until it was granted to them in 1978. That is the level of dumbshit-ness they have descended to. And then tBone is too fucking stupid to know that either, so he reinforces the stupid ass arguments telling us how “lucid” the absurd argument was. Snark aside, do you people see how fucking ignorant and phony you truly are? Seriously
This is the awesomeness I come to this blog for. Self proclaimed conservatives that love the government so much they entrust its expansion of authority to unprecedented levels.
Nannystatism is the new hawt and I’ve got 8 trillion reasons everyone should vote for the Republicans.
Unprecedented? In all our history? This type of ignorant drama-queen hyperbole so typical of the left, is what makes this blog so entertaining.
“The sky is falling because the President doesn’t have to stop and get a warrant when monitoring OBL in Somalia when he receives a phone call from New York”
Such a rational, well thought out position.. typical of the reality based community
This is getting tiring.
The President caused a constitutional crisis by claiming authority over a law passed by congress. Congress has now chosen to entertain a law that retroactively covers the ass of said President. Do you have any precedent for this situation?
Then we can go into the federalism issues of the constiutional amendment defining marriage, the expansion of the medicare drug program, the establishment of the DHS or the 8 fucking trillion dollars that we are in debt. Or didn’t you hear? Bush has presided over — and even spearheaded — the largest expansion of Federal power since FDR.
Your support and defense of this administration just shows how much of a nannystate apologist you are.
OMG it’s like totally normal for the NSA to track the calls of law abiding Americans. I can’t like believe you don’t trust the governemnt!? SRSLY! (fuckwit)
We come from much different positions. You have implicit trust in government power. I don’t.
Can’t you see how fucking ignorant and phony you truly are?
Or is it a vast liberal conspiracy for everyone to tell you that you haven’t a clue what the fuck you’re talking about?
Ah yes, a “constitutional crisis”. See what I mean about the drama-queen hyperbole?
The Constitution, not the President’s personal claim, is where the authority derives. The NSA program pertains to INTERNATIONAL communication when foreign enemies overseas are the targets. The President has constitutional authority to monitor suspected foreign enemies overseas. Such an irrational ‘power grab’ on the President’s part, huh?
If you have evidence that the NSA program authorizes warrantless wiretaps on US citizens or legal residents, please present your evidence.. oh right, there is no such evidence, only your hysterical sky-is-falling accusations. Also, on a related matter, hasn’t Echelon been in place for decades? I guess it becomes a ‘constitutional crisis’ after a Republican is in the White House.
That’s not what Durrell said. He argued:
And clearly, Article III of the constitution gives the Supreme Court the power to rule on the constitutionality of law.
John S, can you explain how my quote which you blockquoted is in anyway different than what Tulkinghorn wrote here: If you review the text of the constitution it is not entirely clear that the constitution grants the power to the judiciary of overturning Congress’ laws.
In other words, it is not a power explicitly granted in the wording of the constitution, which was precisely my point.
Dumbasses like like this are too fucking stupid for words
YES YOU ARE TOO FUCKING STUPID FOR WORDS.
The text of the constitution CLEARLY FUCKING SAYS:
You care to explain how that statement doesn’t grant the Supreme Court oversight of the CONSTITUTIONALITY of laws you fucking nimrod?
There’s more than one program, but you knew that.
No, it has been a big issue for a minority of us that really don’t like increased governmental power. Echelon has been an issue that has bothered many “small government” types since it was established. Even then, Echelon has a way of doing an end run of the laws passed by congress. Sweeping up the domestic phone calls of law abiding Americans? Not so much (I’d explain the difference to you, but it’s a waste of energy).
But you see everything through a partisan lens, so anyone that disagrees with more growth of governmental power under an all Republican administration is a “leftist”. Some of us dislike the growth of government power regardless of the political stripe of the people in office.
What is your point exactly, anyway? If you want to argue semantics by claiming that judicial review wasn’t explicitly outlined in the Constitution, then fine. But you MUST accept that it was forever solidified by Marbury vs. Madison. It is a bona fide FACT that the case legally established the right of the the Supreme Court to determine the constitutionality of the actions of all branches of government. So then what the fuck are you arguing, exactly?
I really want to know what the hell point you are trying to make. That the Supreme Court doesn’t have the power of constitutional review? Or is it that the president somehow has powers beyond what is explicitly outlined in the constitution because that is what has come to be accepted?
I see John S no longer disputes that my statement differed to any significant extent with Tulkinhorn’s. Arguing with people like this is like trying to teach a dog not to sniff its own shit
Nowhere in the constitution does it explicity give the Judiciary the power to declare an existing law unconstitutional, although that is now the widely accepted interpretation of their authority
Marbury v Madison is considered the turning point on this issue
I think most reasonably intelligent people would agree that I’ve made my point abundantly clear previously. I’m sorry that it went over your head.
Except that I can recognize where my interpretation of the facts differs from what is commonly accepted, which is something you are INCAPABLE of doing, you fuckwit.
So I ask again, what fucking point are you trying to make? If you are trying to make the analogy that the president has powers beyond that outlined by the constitution in the same way the Supreme Court does, then you have make a giant fucking blunder. Because unlike the precedent set by Marbury vs. Madison, there is no case that legally establishes that the president has the powers you are claiming he does.
Now go sniff your own shit, you fucking asshole.
You haven’t proved anything, other than you are an asshole and incapable of a rational discussion. Particularly when you are the ONLY ONE that thinks that you have made anything that even remotely resembles a valid point.
John D presented some in-depth arguments re: FISA that I learned something from. I would have congratulated you had you done the same. Instead, you resorted to absurd pretzel logic, jackalopes, and other assorted tricks you always fall back on when you get backed into a corner. So fuck off, you insufferable goddamn jackass.
This what I mean about people too stupid for words queering the thread arguing over WIDELY ACCEPTED interpretations of constitutional authority. The constitution explicitly bestows upon the President the power of CiC of our military. The #1 role as CiC being to defend our country against foreign enemies. Does it make any sense to you at all, that such constitutional powers would obviously include the power to monitor these foreign enemies? Has it sunk in yet, that you really are an idiot?
Do you find that in one of those penumba thingees? I thought conservatives didn’t believe in those. But as Darrell may or may not have said “Ve are nihlists, Lebowski, ve believe in nossing.”
I think he found it in the Powerlineblog section of the constitution. It’s the section where partisan asshats can justify anything the administration does.
Can’t let this one linger out there. If you don’t understand what a “constitutional crisis” is, then yes, it would seem like hyperbole. Thankfully we have “definitions” that serve to “explain” things. When two branches of government disagree about the scope of their respective powers, it’s a constitutional crisis by definition. SRSLY
A poster at DKos has what I think is a great suggestion. I am taking it just a notch further with this idea:
Bush can listen in on our phone calls, as long as we can listen in on his fucking phone calls.
When government has all the privacy and secrecy it needs, and the citizens don’t have it, then the situation is ASS FUCKING BACKWARD and we need to correct it.
Darrel and the lawyers can carry on their useless fucking arguments all day and all night. Populism trumps the bullshit.
I want to hear their motherfucking phone calls.
You keep asserting that it is widely accepted that as C-i-C, he has these wide ranging powers, and that it has always been understood that he has these.
Strangely enough, you are yet again wrong.
Federalist Paper 69:
That clause in the Constitution was always intended to be *limiting*. The founders did not wish to collect all of the power associated with war and warmaking within one office. They very specifically split the range of powers associated with them between the Executive and the Legislative branches. There was much debate about whether to empower these abilities within both houses, both houses and executive, and executive and Senate. The ratified version obviously does not include the Executive, preferring instead to use solely the Legislative.
The Executive branch’s powers as C-i-C reach their zeneith only after a declaration of war by the Legislative. Admittedly, the theory of the Unitary Executive attempts to downplay this, but as I said earlier, I reject that theory out of hand, as it is almost completely unsupported by case law or legislation.
You need to study the stuff that your argument is based on, not the talking points. The support of these arguments is *important*.
Oh, and to cover one of your earlier comments: I’m not a liberal, nor am I a Democrat. I’m an American who is concerned about the balance of powers in our government. Until you can grasp that there are a whole lot of people out there who have non-partisan objections to this, it is vanishingly unlikely you will ever “get” why we’re speaking up.
Except that I never asserted that the President has vague “wide ranging powers”. I did point out that it is a widely accepted interpretation of the President’s constitutional powers, that he has authority to monitor foreign enemies. As CiC of our armed forces in charge of defending our country against foreign enemies, it would be pretty fucking ridiculous to assert that he could fight foreign enemies but not monitor intelligence on those same foreign enemies as part of the fight.. But that is precisely your position.
You take this stupidity even further, asserting that until 1978, no President had before been ‘granted’ the authority to monitor foreign enemies. Incredible. Now having the absurdity of that position pointed out to you, you’re still clinging to it. The hallmark of committed hack
Show me where I said you were either a liberal, or a Democrat.
Way to misrepresent my position.
Quick recap: Electronic intelligence gathering has different rules when applied to purely foreign communications and combined foriegn/domestic communications. No amount of you turning red in the face chanting “CiC”, “generally understood”, “Constitutionally granted powers”, and “widely accepted interpretation” will change that.
The second part of my argument is that once a bill is signed into law, it is the law. The Executive is unable to unilaterally declare a law unconstitutional. The Executive is thereby obligated to follow the law until such time as it is amended or overturned.
And trust me, *nowhere* in the Constitution is the Executive allowed to blithely ignore the law.
Again, way to misrepresent my comment.
You put my name adjacent to “…ever present band of leftists”. I was clarifying what appeared to be a misapprehension on your part. Now show me where I claimed *you* called me either of those.
Oh, by the way —
Could you please explain precisely why you deleted and ignored the entire Fed. 69 quote I provided that showed that, in reality, it is not a “widely accepted interpretation”, at least by one of the actual signatories of the Constitution?
I didn’t misrepresent your position. You’ve made your position crystal clear:
and you also wrote this:
As anyone can see, I represented your absurd position quite accurately.
I “deleted” nothing, and couldn’t delete posts even if I wanted to as this isn’t my blog. And I read nothing in that ‘deleted’ Fed. 69 quote which would suggest that the President, as “supreme commander” of the armed forces has authority to launch attacks on foreign enemies, but not to monitor intelligence on them. What part of that quote do you believe suggests otherwise?
Blah blah blah blah blah de fucking blah.
When are we going to talk about the fact that the Democrats have No Plan to protect the privacy of the Federal Government?
Not only is Darrell the Decider’s Defender, he’s also the Ignorer. Not “the Deleter” John, “the Ignorer”. Of old-timers recognize him as simply the Senator.
– signed another left-liberal-Left-Democrat-Moonbat-terrosymp-lefty-commieMcLefterton.
Liberal Bush critic Michael Kinsley
Kinsley makes several valid points. Can we finally stop pretending this is some sort of cut and dried “patently illegal” shredding of the constitution? I think Kinsley nails it with the ‘depends on how unclear the issue and how plausible is the President’s interpretation’ part.
To me at least, it’s very unclear to what extent Congress can regulate the President’s constitutional authority to monitor foreign enemies. And the President’s interpretation of those powers, at least in the NSA flap, seems reasonable. That’s where the debate should be imo – how unclear is the issue, and how plausible is the President’s interpretation.
Kinsley also says this:
Apparently, Kinsley feels the courts DO have the final say. Once the courts issue a ruling, the president does NOT have the power to continue interpreting the constitution as he sees fit. So the real issue – as Kinsley points out – is why the courts haven’t, or haven’t yet, ruled on the subject at hand.
Kinsley doesn’t run the government. Kinsley is not elected. Kinsley does not have a judgeship. Kinsley is not a person from whom I seek advice about how to assess what the government is doing. Kinsley is in exactly the position you are in. He is one person with one opinion.
Neither he, nor you, decide for me when the government has gone too far. I do.
I am not willing to trade a promise of “safety” or “protection” from a piece of dirt like George Bush for any protection of law or any liberty, whatsoever. I don’t care if fucking terrorists are attacking every fucking day, Darrell. I don’t trust him, or you, to make that call. I barely trust the government when it is practiced in a way that is clearly in keeping with shared power between branches, oversight, and judicial review to the greatest possible extent. I do not support a consolidation of federal or executive power in order to grab authority into the executive branch, or to increase the government’s ability to operate in secret and subvert liberties and privacy.
You can slander that viewpoint with your drumbeat of tiresome bullshit like you do here every day, but it doesn’t feed the bulldog.
You are making what was called a “No controlling legal authority” defense, which was the object of derision when your opponents did it several years ago. And it is the object of derision now, for the same reason.
So signing statements are ment to temper the court’s view of a law as the Executive Branch sees it. This appears to be the extent of their power.
I did a bit of cutting and pasting too, and if you ignore the context of the article – one in which we ask whether the President has less authority than Joe Journalist to interpret the Constitution as he sees fit – it looks like Kinsley is very clear on where Presidential authority begins and ends in terms of the Constitution. He can read a law however he likes until the Judicary settles it.
As for the authority of Congress, well, they write the laws to begin with. So long as they don’t exceed their Constitutional authority, they have the first and most powerful say in how the President may spend the funds they allocate for wiretapping and survallience. If Congress alots $10 billion and specificaly states this money cannot be used to spy on Americans, they trump Presidential prerogative. If the NSA is afforded a budget for intelligence gathering on suspected Al-Queda terrorists, and the NSA uses said funds to get the phone record of Tom Tommyson, lifelong Christian and Wyoming resident, they have exceeded their own authority.
Specter respods to Darrell:
I guess Specter didn’t get the ‘generally accepted’ memo Darrell has been passing around.
Specter responds to Darrell:
I guess Specter didn’t get the ‘generally accepted’ memo Darrell has been passing around.
Specter respods to Darrell:
I guess Specter didn’t get the ‘generally accepted’ memo Darrell has been passing around.
Maybe Specter feels if the President can’t be held responsible for his actions, then he’ll just come out and say what he did, and let it be investigated. Maybe Specter just wants the truth.
It was’nt under Presidential authority. It was CIA.