Because he’s a lawyer and we’re not.
The DOJ issued an explanatory memo last night (PDF). Glenn says their legal ground is highly specious. Then the WaPo prints an Op-Ed by Tom Daschle basically explaining that the fundamental basis on which the DOJ memo claims Bush’s power implicitly rests, a particular reading of the post-9/11 Authorization of the Use of Military Force, was explicitly rejected by congress in negotiations with the White House. Oh well.
Apparently the Pentagon has its finger in the illegal-surveillance pot as well. But don’t worry, if you’ve always been 100% patriotic (that is, supportive of this particular administration) then you’re probably not in their database. Unless you know somebody who is, in which case you should take more care with whom you associate.
When you consider that the Supreme Court will almost certainly hear one or more cases stemming from snoopgate, in a time frame in which Samuel Alito will likely preside if a filibuster isn’t mounted, the candidate’s opinions regarding the government’s right to wiretap citizens seems almost ridiculously relevant. The NYT suggests that if he plays a tiebreaking role, it’ll be on the wrong side.
Another day of Joementum.
Paddy O'Shea
This is all wonderful stuff, but we’re definitely still in the foreplay stage on this one. The real fun doesn’t begin until the Senate investigation gets underway and we find out exactly who it was Bush was snooping on here in the good old U.S. of A.
To me Bush’s claims that it was only Al Qaeda related targets that were spied on smells funny. And honestly, given this President’s track record with the truth, do you really believe him?
Poll Report:
New SurveyUSA Poll puts Bush’s approval at 40%. As the American people wake up to who it was that won the election in Iraq, watch Ayatollah W. Enabler’s numbers as they begin to head south again.
surveyusa.com/50state2005/50statePOTUS1205ByState.htm
Iraq Wins Big In Iraq’s Election
atimes.com/atimes/Middle_East/GL20AK01.html
Iran’s Victory Revealed In Iraq Election
sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2005/12/21/EDGU6GAM691.DTL
Mona
Then the WaPo prints an Op-Ed by Tom Daschle basically explaining that the fundamental basis on which the DOJ memo claims Bush’s power implicitly rests, a particular reading of the post-9/11 Authorization of the Use of Military Force, was explicitly rejected by congress in negotiations with the White House. Oh well.
And that is all crucially important, and would be relevant to any judicial scrutiny of Bush’s NSA program. Glenn Greenwald is a very smart lawyer, but he overstates some of his analysis. Even if Bush totally violated FISA — and he did — it would be possible, under controlling precedent that Glenn cites, for a Court to uphold Bush’s NSA program. Whether it should I doubt, and that would all fall around who sits on the SCOTUS.
Non-lawyers won’t likely follow the intricacies of the Youngstown case involving Truman’s desire to seize the steel mills during the Korean War, but it simply sets a very high bar, not an absolute one, for Presidents wearing their CiC hat to flout an Act of Congress. So, there is plausible, but hardly overwhelming, argument that Bush had the authority for what he has done.
demimondian
Mona, I don’t see how the SCOTUS could find Bush’s actions legal, at least under the current rationalization being offered. I agree with you that the Court could find them legal using a broader doctrine of “intrinsic powers” to find FISA itself unconstitutional, but I don’t see how the narrower claim currently offered by the DOJ, that the AUMF granted that authority to the President to act as he has, could stand when the record of the Congressional debate shows an explicit decision to withold that power.
I would think that reasoning behind Frankfurter’s concurring opinion would refute that argument: the legislature explicitly chose to not give the President certain powers, and so the President must not arrogate those powers.
srv
I’m starting to wonder if whatever case that comes out of this is the Federalist Societies wet-dream case for SCOTUS. Perhaps this is why they’re pushing this view so hard. I think we can assume Justices Thomas, Roberts and Alito will support the King (Unitary Executive) Theory.
But I don’t see how Scalia will go for it after reading Rumsfeld v. Padilla. Scalia ranted for habeus corpus, and if the king didn’t like it, he should have the balls to suspend ala Lincoln.
ppGaz
Another thread for the lefty extremists to spread their hatred of Bush and ignore the legalities of the NSA matter.
(Just saving you the trouble, Darrell. I am your true friend).
ppGaz
Warning to Darrell, this question has not gone away.
And your attempt to spam threads here to cover up your misuse of the 72-hour issue, also has not gone away.
Why did you try to use the 72-hour feature of the FISA law as a defense of Bush’s enexplicable actions? Why did you suddenly STOP doing this when I started hammering you on this question?
And most importantly, why did Bush spend years avoiding this issue, which you deemed so critical, instead of working to change the law and expand the time window if it was not, AS YOU CLAIMED, long enough to do “the paperwork?”
Is our government so fucked up that it can’t handle a 72-hour time window without making a mess of the Constitution, Darrell? If so, who fucked it up?
Jerry
Some interesting comments that I’d like to respond to.
For starters, it is highly unlikely that the issues here will ever make it to the Supreme Court. There is virtualy no way for this program to get to the courts for review, unless and until any of the information is used against the suspect, if that suspect is capable of actually finding that out. You have to find someone who has standing to object to this. And so what you’d have to find is an American citizen whose been tapped, or intruded on in a way that results in harm. … It’s very possible this won’t be litigated at all. (HH and Cass Sunstein)
Seondly, Daschle says, “The Bush administration now argues those powers were inherently contained in the resolution adopted by Congress.” The admin doesn’t argue that inherent rights were contained in the resolution, they contend the President has inherent wartime powers as commander in chief to intercept foreign communications.
Thirdly, there seems to be a string of comments here noting that Congress debated what auth to give the pres and decided not to include that authority. They then jump to the conclusion that therefor, the Auth does not grant that authority. As most any of the commenters here must know, what Daschle ‘thinks’ of the law is the last place any court looks to for enlightenment. The first place they look is to the words of the law. The idea that a grant of authority to use ‘necessary and appropriate force’ does not include the ability to intercept foreign-origin communications is silly.
Daschle’s contends that he, “did not and never would have supported giving authority to the president for such wiretaps.” If you naively believe this, then Daschle is saying that he gave the President authority to kill al Qaeda members, but not the authority to listen in on their telephone calls. That’s ridiculous.
Daschle says, “Bush … argues those powers were inherently contained in the resolution… but at the time, the administration clearly felt they weren’t.” Could not the President believe he had this power and still want as specific a grant of war powers as possible?
Daschle repeatedly confuses foreign surveillance with domestic surveillance. The NSA is conducting surveillance of communications which originate outside the United States by known or suspected al Qaeda members. OUTSIDE the United States. Foreign surveillance. That’s what this debate is all about!
Is Daschle claiming that the authorization for the use of ‘necessary and appropriate force’ does not include the ability to find out what al Qaeda is planning? Is anyone here trying to argue that point?
Daschle does not appear to recognize the parameters of the debate or understand the terms being used! I wouldn’t use his opinion piece to argue any substantive points.
Steve Malynn
Come on John, Daschle?
When Posner, Sunstein and just about every AG from Carter’s admin forward says FISA does not prevent monitoring of foreign destination/origin communications, and the 4th Amendment cases are also clear, you’ve got Daschle?
Darrell
As John Cole pointed out the other day, the NSA and other agencies have been monitoring communications between foreigners and US citizens for a long, long time, and have done so without obtaining warrants. See Echelon for more evidence. This intercepted information has ALWAYS included conversations and emails involving US citizens. Are we to seriously believe that the NSA and other agencies never in the past read the intercepted information if it involved US citizens? Or do you Bush haters want to argue that they never intercepted communications involving foreign suspects and Americans?
Nothing new there, although the left is dishonestly trying to pretend that there is. If there is no dispute that the President has the constitutional authority to monitor foreign enemies without warrant in order to protect us, than can the left admit that at best case for their argument, this is a murky area when foreign enemies communicate back and forth with US citizens? A murky area in which the Bush admin has a very plausible case
Liberal law professors like Cass Sunstein, Richard Posner and Clinton Associate Attorney general John Schmidt have argued that Bush is fully within his constitutional rights when he issued that executive order.
Tim links to lawyer Glenn Greenwald as a rebuttal to the Sunstein, Posner, Schmidt, DOJ legal dept, etc, etc. But to understand where Greenwald is coming from, read what he wrote in his comment section:
For Greenwald, this is all about getting Bush
Paddy O'Shea
Steve: Guess it’ll all come out in the Senate hearings, eh?
Bet your Republican bud Arlen Specter is going to do a real fine job, too.
You know, you can parse and puff and do the apologist hokey-pokey all you want, but when the gavel hits and the story all comes pouring out, you know all of this won’t mean a damn.
Personally, I can’t wait to see what Americans old Shrubby was snooping on, y’know? My guess it is going to make Nixon’s enemies list look like the guest roster to a Cub Scout potluck.
But good luck with all this!
Tim F.
Sounds reasonable to me. You don’t think these guys set protecting the pricipal as job #1?
Pooh
Darrell! We missed you. What are the talking points today? And please, more learned arguments from your trove of consitutional scholarship!
I see your Schmidt (heh), Yoo and Posner and raise you Kerr, Lederman, Solove, Mazzone, Greenwald, Levin, Bainbridge, Vladeck, and that’s just off the top of my head. (Also note that Posner was making a prudential, rather than a legal argument. Do you know the difference? Do you care?)
Returning to seriousness for a moment, the one cogent point made is that placing this dispute in Youngstown’s category III (express congressional rejection. Unless the admin is arguing this is outside of FISA, which they haven’t, and I think that argument is a loser), is merely the beginning of the analysis. The president’s powers being at their “lowest ebb” doesn’t mean non-existant. But “lowest ebb” can, a fortiori, not mean “plenary”. The sweeping reinterpretation of executive power sought does violence to any number of well settled doctrines of constitutional and statutory interpretation.
Darrell
No, I do not see Cass Sunstein, Richard Posner and Clinton Associate Attorney general John Schmidt as the types who see their “job #1” as protecting Bush. Do you?
Darrell
because you have addressed my arguments so cogently with your strawmen
Darrell
I love it. Bush’s executive order is now a “sweeping reinterpretation of executive power”. If Bush has constitutional authority to run surveillance on foreign enemies, how then is it in any way a “sweeping interpretation” to say that those powers extend to foreign surveillance in communications with Americans? And what say you about the NSA monitoring of foreign communications involving americans which has gone on for decades?
Pooh
Darrell, the whole “inherent plenary authority” argument is in fact a sweeping reinterpretation. But then, I didn’t go to law school and learn Con Law…no wait…
Say strawman again though, it’s getting good to you. And what arguments have you made? You’ve invoked names. Make an argument, use your words.
What is Schmidt’s argument? Use your own words, and tell me why it is more persuasive then those advanced by the esteemed professors I named above (if you want, I’ll even go first). Where does Yoo think ‘inherent authority’ comes from? Is Posner arguing that the NSA probes weren’t illegal, or that they shouldn’t be? It will be good for you, though it might hurt at first. Like the first time you run after being lazy for a few months.
Basically, advance an argument beyond “he said so” or I’m done dealing with you with any degree of respect. If you’ve already done so, then maybe I’ve missed it, but do it again, I’m sure you can.
Perry Como
More warantless searches:
usnews.com/usnews/news/articles/nest/051222nest.htm
Are they really searches?
“Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a “search” and is presumptively unreasonable without a warrant.” — Justice Scalia
Why does Justice Scalia hate America?
Darrell
You claiming to be some sort of Constitutional law ‘expert’ while claiming that Bush’s executive order was a “sweeping reintepretation” of executive power? Still waiting for you to explain that one
That
1) NSA warrantless surveillance of suspected foreign enemies involving US citizens has been going on for decades (some “sweeping reinterpretation” of executive power by Bush, huh?)
2) the president has constitutional authority to run warrantless surveillance on foreign enemies
3) therefore it seems like a logical extension, especially in light of the congressional resolution to give the President the authority to “use all necessary and appropriate force”, that the President should be able to run warrantless surveillance of foreign enemies even if they call to Chicago or Kansas City
There you have it in a nutshell. Now, in your words without copying and pasting from Greenwald, Daschle, etc, please explain how Bush’s executive order, given NSA’s long history of warrantless monitoring US citizens in foreign communications and Bush’s authority to run warrantless surveillance on suspected foreign enemies.. explain then how Bush’s executive order can be characterized in any way as a “sweeping reinterpretation” of executive power
ppGaz
In early returns, there are 17 posts to the thread, 4 are Darrell, for a Darrell rate of 4/17 or 23.5%.
This is in line with yesterday’s roughly 270 posts and 68 Darrells, for a 25% rate.
slide
Again. My prediction is that the government has been monitoring EVERY single electronic communication, part of which was outside of the United States. Those that the NSA computer, through filtering programs, determined needed further attention were examined.
I think when bush said that everyone wiretapped was connected to Al Qaeda somehow is going to prove very very false. They are on a fishing expedition. Looking at everyone’s telephone calls, everyone’s emails, in the hopes of finding something of value. According to the NY Times there were thousands of US Persons who’s rights were infringed in this way. Does anyone here want to suggest that there are thousands of Al Qaeda in the USA? Have their been ANY arrests?
The more we learn the more this is going to stink to high heave. Joementum on the march.
GIVE ME LIBERTY OR GIVE ME DEATH!God Bless America
slide
What darrell’s posts lack in in logic he more than makes up in frequency
slide
Its funny how the right wingnuttia’s arguments have morphed over time. Remember when we were debating Al Maviva’s contention that FISA permitted wireless searches? Of course what he neglected to mention is that that did not apply to any communication in which a US person was a party. NRO also was arguing the same thing. Totally debunked. BTW.. anybody see Al lately? is he in an undisclosed location for lying sacks of shit?
Ok.. next argument… . Clinton did it… Carter did it… well of course Drudge and company were wrong yet again. Totally debunked as those executive orders also EXCLUDED US persons…
Ok… then it was well Congress ok’s it. Oppps… we have Rockefeller producing a letter written at the time… Pelosi’s comments… Daschel’s comments… Senator Grahams comments.. all of which stated they were told the whole story or they expressed their objections at the time.
they move on… gotta be some talking point that can stick? so what do we have left? oh.. the constitution gives the president the power to do ANYTHING HE FUCKING WANTS you commie traitor… .
Joementum on the march.
GIVE ME LIBERTY OR GIVE ME DEATH
God Bless America
slide
I gonna catch up to Darrell’s percentage if it kills me
Pooh
Well D, that’s a start.
1) Largely irrelevant and factually debunked. Clinton, Carter et al allowed warrantless searches in compliance with FISA. Bush has made no claim that the warrantless searches he authorized were within FISA. He has argued that he is not bound by FISA, which is a novel claim.
2) Granted. However, the reason is that the enemies are foreign, not that they are enemies. Further, Consitutionality is not the same thing as legality. I will grant (as will everyone here) that the President’s power over foreign matters is greater than domestic (though it is not unlimited, see e.g. Art. II sec. II Cl. 2 “advice and consent” restriction on Treaty Power).
3) Does not follow from 2. You are assuming the conclusion that those being snooped in KC, Omaha, BFE or whereever are in fact ‘foregin enemies’. This is where the “No substantial likelihood of U.S. persons” language of FISA comes into play. Ergo, get a warrant. Otherwise, all that would have to be done is for Gonzales to say “Darrell is a foreign enemy. Let’s spy on him.” And that would be legal under your argument.
The “sweeping reinterpretation” I speak of is the attempt to ignore Art I and Art III’s express limitations on executive power of certain matters. (See Art. I, Sec 8 cl 11-16. Art III “Cases . . . under the Constitution”). The AUMF as an override of those provisions is simply laughable. Not only is the claim of ‘unilimited wartime powers’ dubious, but the AUMF is not a declaration of war.
Put it this way, the lynchpin of Yoo’s argument is that Art. I says “Legilsative powers herein granted” while Art II says simply “Executive powers”, therefore, ‘everything else’ is executive power.
Darrell
“Factually debunked”? First, Deputy AG Jamie Gorelick testified that “the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”. Also, it has not at all been “debunked” that NSA was not intercepting foreign communication involving communications with US citizens under Clinton and other administrations. I want to see links/evidence demonstrating NSA was not collecting such information during those administrations
Yes it does as Bush’s executive order pertains ONLY to the surveillance of FOREIGN non-Americans when they communicate with Americans. He is asserting constitutional authority OUTSIDE of the FISA framework, so your FISA citations are irrelevant to the point. Declaring me or any other american a “foreign enemy” doesn’t have a thing to do with this point, and I’m frankly surprised you as a lawyer don’t understand that basic point. Bush’s executive order cannot declare both of us ‘foreign’ enemies and then wiretap a conversation between us without warrant if we are both US citizens. One of the parties has to be foreign, right? What’s more, under the Bush admin program, if dirt is obtained on a US citizen during such warrantless surveillance, it CANNOT be used against the American. Please correct me if I have mistated a matter of fact, but I believe I am correct and you are mistaken
Bush is reasonably asserting his article II powers regarding national security, and specifically with regards to the monitoring of FOREIGN (key word) enemies. As you know, the Executive is a co-equal branch with the legislative and you cite no specifics on how Bush has in any way made a “sweeping reinterpreation” of executive power.
Please answer this – if Bush is allowed to conduct warrantless monitoring of Al Queda in Saudi Arabia, why should he not be able to monitor without warrant the SAME Al Queda suspect when he calls Kansas City?
Darrell
yes, because Al Maviva is the spokesman for all of the right wing, right kook? And if he was mistaken on that point, and it appears he was, how in any way does it discredit the other unrelated arguments in favor of the President’s authority?.. many of these arguments made by liberal and Democrat attorneys.
Mona
from demimondiuan:
But nobody cites Frankfurter, or for that matter, Black who wrote for the Court. Jackson’s concurrence with its three categories of analysis have come to be the guiding light of these arguments over Executive v. Legislative power in a national security context.
Read the comments at Greenwald’s place. I agree with those who argue that Jackson’s Category III analysis is what applies, and that it is a very high bar, but not an absolute one (Greenwald’s claim), to what Bush has done. (The DoJ memo purports that they are in the looser, Jackson Category I, and they are wrong, because FISA makes it a Category III matter.)
Darrell
Who is making the claim of “unlimited wartime powers” for the President? Is this another of your strawmen, or is someone in the Bush admin actually making that claim?
slide
and Byron York and Mark Levin and National Review online and errr… let me see…. Darrell? did you dispute what lying Al Maviva was contending – I dont’ quite remember.
Darrell
Byron York and Mark Levin actually argued that FISA permitted wireless searches of Americans? If that’s true, then you have a point, but I doubt you’re telling the truth here. Why not substantiate your claims with valid links?
slide
Mark Levin:
False
slide
oh.. here is the link for the Mark Levin statement.
Perry Como
John Yoo and the Bybee memo, among others.
Darrell
Uh slide, Levin states that FISA does at times required warrants to run surveillance. What’s your point?
Regarding Pooh’s comment above
Yet besides Clinton’s deputy AG statement, we have this on EHCELON under Bill Clinton
Doesn’t even have to be related to a terrorist group. Any communication no matter who including ‘baby monitors’ for chrissakes. Oh my, where were the FISA warrants then? Did they say baby monitors? ‘Factually debunked’ is what you said, right? You were flat wrong.
Pooh
Good point, except that FISA didn’t cover physical searches at that time. The law was different because it was, er, different. See there’s this thing called Congress, and they, from time to time (usually around noon on a Wednesday), ‘vote’ on ‘bills’ which then become ‘laws’, and sometimes a new ‘law’ can replace an old ‘law’ making ‘The Law’ ‘different’…
If you don’t think the President is making the claim for, at least, greatly expanded (and expanded in such a way that has no bounds but those imposed by executive discretion) exectuive perogative in war time, then you haven’t been paying attention.
As for you other arguments, see my point about “assuming the conclusion.” Because the President says someone is a “foreign agent” doesn’t make it so, neither does saying a wiretap “only listens to foreign agents.” For the nth time: No one has a problem spying on foreign terrorists, but there needs to be oversight to ensure that only foreign terrorists are spied upon. And no, I do not accept your argument that there was oversight – ‘briefing’ does not equal oversight, nor does a FISA court when you choose not to use it.
slide
.
.Misleading? I’ll let you (no not YOU darrell) be the judge.
GIVE ME LIBERTY OR GIVE ME DEATH !
Darrell
Ok, that’s a start. Tell us then, if no one has a problem spying on foreign terrorists, tell us then what about when those foreign terrorists make calls to US citizens in Atlanta? That is the bottom line of this Bush admin program
Pooh
Darrell, I see no claim of legality in ECHELON spying on U.S. citizens. In fact:
Try again.
Darrell
That’s referring to criminal statutes, not military. The Bush admin is asserting constitutional authority under Article II, nothing whatsoever to do with your citation. Reading is fundamental slide
ppGaz
Current Darrell rate is up to 30%.
slide
darrell:
My point is his words. . .
are flat out false. You need a warrant not only if it is purely domestic but if there is a
and of course that is what we are talking about. Wiretapping US persons. Makes the statement completely false. But darrell we have gone over this time and time again. Havent we? Are you dense or just refuse to comprehend.
Darrell
If ECHELON had been in place for years and year and Congress continued to fund it, then 1) it provides rock solid support to my original point that this type of monitoring had been going on for years before Bush even took office, therefore not a “sweeping reinterpretation” as you wrongly asserted and 2) the continued funding gives presumption of legality.
You try again.
Darrell
So in other words after they shared the information with the Oversight committee (monitoring of all phone calls, baby monitors, etc without basis) funding continued.
Do you think you actually made a point in your favor with that quotation Pooh?
Pooh
Darrell,
U.S. citizen = get a warrant, you have 3 DAYS. Start listening now, and THEN go get a warrant. If Citizen 3000 in the ATL gets a call from a terrorist, get a warrant. Like a FISA judge is going to say no? If you need longer than 3 days, make the case for extending the time from under FISA. You do not get to ignore the law because you don’t like it.
And the problem is not the call from terrorist in Riyadh to 3000 in the ATL, its the call from 3000 in the ATL to BigBoi being monitored without a warrant. Which has happened. Without oversight. Because they didn’t take it to the FISA court.
Essentially, the program purports to treat BigBoi just like it does the terrorist, with no showing of anything before any sort of independent arbiter.
Assume I’m the President. I can say “darrell is a terrorist sympathiser. Spy on him. I have no evidence, but my Ouija board told me so.” And there is nothing wrong with that? Am I saying that will happen? No, but there is nothing to stop it if there is not meaningful oversight/independant review.
Mona
Darrell writes:
I really don’t think that series of Bush comments about roving wiretaps is misleading. Non-ideologue federal appellate Judge Richard Posner, among others, has argued that the NSA warrantless surveillance issue under controversy likely involves new technology that applies advanced computer technology to intercepting millions of communications and looking for certain patterns that indicate terrorist trails. While it is still the case that Bush should secure Congressional authorization for such a program, it may very well be far more sophisticated — and useful — than merely tracking changing cell fones.
It genuinely may be the case that technical details relating to this program, and the vast numbers of communications intercepted, make securing warrants a bit impractical. We can’t know, the program is classified.
Darrell
As I specifically addressed that issue above (can you lawyers read?), that is a false analogy if I am in fact a US citizen. He cannot spy on me under the Bush admin program unless I have contact with a foreigner under surveillance. Since I addressed that point already, I assume you’re being dishonest by repeating it. Again, your example of Bush designating me, a US citizen to be a terrorist sympathizer has nothing to do with the Bush admin program
Darrell
Pooh, doesn’t matter as the President is (reasonably) claiming constitutional authority outside of the FISA framework. The President doesn’t need 3 Day warrants to monitor foreign terrorists outside the US, so why should he have to get warrants now just becuase they call Las Vegas? I think most people would agree that what the president is doing makes a lot of sense. Where do you get off characterizing it as a “sweeping reinterpretation” of his powers?
slide
Pooh you beat me to it. What those that are on the other side dont’ get is that its not as black and white as they make it. He starts his hypothetical by saying.
how do we know they are foreign terrorists? Just because Bush says so? What makes us believe that he is a terrorist in a first place that would make us take the step of monitoring what a US citizen says to him. Thats why we have a court – so that we can have someone other than the executive branch look at the same evidence and agree that this is a good reason to violate the basic privacy that all americans are guaranteed. We don’t just “trust” under the constitution. We have checks and balances.. for good reason.
I know what I am talking about. As a law enforcement officer for over 25 years I have applied for search warrants on numberous occassions. On even more occassions I wuold have loved to search someone’s house because I KNEW he was a dirtbag. But I couldn’t prove it. Frustrating yes… but I’d rather have a lot of frustrted cops than to give them the power unilaterally to go breaking into homes on a “hunch”.
Same here. I’m no bleeding heart liberal. I’m a New Yorker and a cop. I want the terrorists caught capture or eliminated as much as anyone. But we must, MUST have a system that is as abuse proof as possible. Allowing this administration, or ANY administration, complete and absolute power to wiretap anyone THEY think they should is a recipe for disaster.
Darrell
Since when does Congress get to tell the President how to manage his Article II powers? The executive branch is co-equal to the Legislative branch, and the founding fathers gave the executive branch CIC authority, not Congress
ppGaz
34% Darrell at this marker.
Perry Como
n degrees of separation, explained quite well by small world networks. We don’t know exactly what the program is (well, I don’t, but you may have some special knowledge), so let’s throw out some more gross speculation:
The NSA is monitoring foreigner A
Foreigner A calls foreigner B, B is now being monitored by the NSA
Foreigner B calls foreigner C, C is now being monitored by the NSA
Foreigner C is an old buddy of yours from college and he calls you, the NSA has now wiretapped your conversation based on three degrees of separation.
The flaw with this system is that you can connect almost any two people on the planet with five intermediaries. If this is the system they are using, no wonder they aren’t applying for warrants. Even the rubber stamp FISC would look at the application and say “wtf?”
Darrell
you want more oversight? Fine. But the dispute here is not whether or not they are foreign terrorists, but whether suspected, unconvicted foreign terrorists who are monitored without warrant in Jordan can be monitored without warrant when they call to the US.
slide
who says so? We dont ‘have details of the program so we don’t know anything of the sort. My belief is that we monitor EVERY international communication. Every telephone call. Every email that either originates or ends up outside the USA. When one of those communications triggers a NSA computer’s filtering program they pay attention. And that does NOT mean the communication is to a KNOWN TERRORIST. Nothing of the sort.
for instance I call my brother who is often in London and I say something (maybe a terrorist’s name, maybe a phone number, maybe a phrase) that triggers the computers filtering program. bells and whistles go off and then some human starts listening in to see if it is a false alarm or something that could be connected to terrorism. Again.. at this point no known terrorist.. no warrant.. no probable cause.. but we have wiretapping of an american citizen. That is what I think is going on.
Darrell
You raise a fair point, except we are not talking not about the entire planet related to each other, but limited to non-American foreigners under surveillance who contact US citizens. What’s more, I understand the surveillance of individuals separated by 2+ degrees is done by computer, a machine looking for key phrases and words. Still, you make a fair point
slide
no, that is not the debate, not with me anyway. I think it is far more reaching than that.
Darrell
been going on for years
slide
darrell.. I was the first one on here that linked to that 60 minutes transcript. That is why I am so concerned. I know the technical abiltiy is there to do what I say… I have NO EVIDENCE it has been done with respect to domestic communications and neither do you.
Darrell
From the 60 minutes transcript:
and this
Domestic. Communications. Not even communications with suspected foreign terrorists.
Mona
Since the Korean War-era Supreme Court decided that this is a matter of a balancing act, and that the President’Article II “inherent authority” is at its “lowest ebb” when violating a validly enacted law of Congress. See Youngstown, Jackson’s concurrence, Point 3.
slide
but you neglected to mention this from Porter Goss who was overseeing the NSA
you are so very selective in what you comprehend darrell.
Just think for a moment.. according to the NY Times a DOZEN or more “insiders” with direct knowledge of this program had contacted them annonymously because they were so concerned. There are carreer people in the NSA. So, if we believed you, they were ok with the routine monitoring of US CItizens before but now have a problem with international calls to terrorits? lol.. come on darrell, even you can’t be that dumb
Darrell
yeah? the Executive branch, at it’s “lowest ebb” as you say, took us into the Vietnam war as well as quite a number of other foreign military adventures WITHOUT Congressional declaration of war. Even at it’s ‘lowest ebb’, the Executive branch seems to still have a lot of Constitutional authority, wouldn’t you agree?
Darrell
Yes, people within the NSA who violated their secrecy oath and revealed classified information on a program involving vital national security surveillance. I’d ask YOU to think about something – The President has the power to monitor suspected foreign enemies without any warrant whatsoever. All this program does is make it so when this same terrorist calls the US, he can be monitored as he was before. This is not some wild ass Watergate-like overreach of power.
slide
just because you say it so dont’ make it so bunky. We don’t have a CLUE as to who was monitored now do we? I’m all for finding out. Are you? oh.. i know its top top top top top secret. If he told us Americans would DIE DIE DIE and the terrorists would swarm over this country raping out daughters and eating out grandmothers. Cant’ have that. Ok.. I got a solution, let him tell the FISA court judges, who are sworn to secrecy, all of the people he has wiretapped. You ok with that bunky?
Darrell
I’ve already said I’m fine with more oversight beyond which is already in place. That is a VERY different position than doing away with the Bush admin’s program
slide
That bush sure does engender loyalty doesn’t he?
We have CIA agents outraged that he wants them to TORTURE.
We have NSA agents outraged that he wants them to spy on Americans.
We have FBI agents outraged that he wants them to enter Muslim’s homes and mosque’s without a warrant.
We have career Justice Department outraged that the politicos overruled them on the Texas gerrymandering.
We have career EPA scientists outraged that he made changes to their scientific reports to suppot their “what global warming” policy.
We have career FEMA experts outraged because he put political hacks in charge of a very technical field with no experience whatsover in disaster management.
We have judges outraged that he would appoint someone as unqualified as Harriet Meirs for supreme court justice.
We have career auditors outraged that he would tell them to not tell the true cost of the medicaid bill to congress under threat oflosing their job.
We have career State Department people outraged that a nitwit like John Bolton was shoved down their throat making political speeches that had no intelligence backing.
We have career FDA officals outraged because he made them take political postions instead of scientific ones on birth control medications.
ahhh.. yes.. our glorious Leader, a uniter not a divider.
ppGaz
Darrell rate monitor:
Since last marker, 58% of posts are Darrell
For the thread, 37.5% of posts are Darrell
(I count 24 of 64)
If you take out my monitor posts, the Darrell rate is
39% of the thread.
slide
ppGaz do you have a Truthfullness rate monitor for Darrell as well? or is that number unable to be measured?
Pooh
A denominator zero makes the number undefinable.
ppGaz
Darrell does so much deflecting “Look A Jackalope” that even though there may BE a jackalope, it’s not relevant.
So you’d need a sophisticated relevance-truth set of metrics to really understand what he’s doing.
Mona
Darrell writes:
You are conflating legal issues. Whether Bush has “inherent authority” under Article II to violate a valid Act of Congress that pertains to national security is a question that is, by common legal/judicial acclaim, examined under the Youngstown analysis in Jackson’s concurrence. Declaration of War powers are not involved, certainly not directly, in that inquiry.
TallDave
Not much of one, apparently.
So what? Good Lord, is he joking? So one is a terrorist group trying to kill us, Glenn, and the other is some people not showing up for work. That makes this a national defense issue involving an extranational threat, not a nonviolent domestic issue of labor relations. Slightly different situations there, especially when the main purpose of having an Executive is to defend us from such threats.
I thought you guys were suppsed to against torture. That’s some of the most tortured logic I’ve ever seen.
And then he has the gall to actually fault Bush defenders for not citing the case! Unbelievable.
slide
the Youngstown analysis in Jackson’s occurence… funny I was just debating that in the bar last night. Really, Mona you are wasting your breath with Darrell. You’ld have better success teaching calculus to a fungii.
TallDave
Oh, and meanwhile a real lawyer (and for a Democrat, no less), Clinton’s Assistant Attorney General, has said the wiretaps were perfectly legal.
I guess Glenn Greenwald can always be Kos’ attorney general.
Perry Como
TallDave Says:
Read the Bybee memo sometime.
slide Says:
I’ve heard the Mi-Go are rather good at math. Non-Euclidean geometry, specifically.
demimondian
Hey, TD? You might actually want to read the thread before you spout off. The Jamie Gorelick qutoation refers explicitly to foreign entities on foreign soil. This debate revolves around US persons on US soil.
Don’t go away, though — somebody has to provide a calibration signal for what the denizens of Outer Wingnuttia actually are. Darrell tries — he really does — but I’m afraid that despite his efforts, he just can’t quite attain the level of moronic verbal incontinence you achieve.
Mona
TallDave writes of Greenwald as lawyer:
Oh, trust me, he is a supremly capable and very bright lawyer; I’ve had professional interactions with him. I think he is partially wrong in his analysis of the Youngstown case, but that is because he has his partisan hat on — he’d be more careful with a client. Of course, his partisan hat is neither left nor right — I’d call him a wannabe anti-federalist who is forced to work within a federalism paradigm.
Read some of his blog entries pertaining to anti-Americanism or gun control. He has big issues with George Bush, but he is not a lefty, and whatever BDS he has comes not from left-wing kool-aid.
Pooh
Mona writes:
Hey, isn’t that what got us here in the first place?
slide
oh I like that demimondian, well done.
Perry Como
If this thread can be resurrected:
Wiretaps said to sift all overseas contacts
This is still entirely speculation, yet fits well within the parameters of ECHELON. In years previous to 9/11, discussions of programs like ECHELON were often dismissed as folks wearing tin foil. If we accept that this type of monitoring has been going on for a long time, shouldn’t it be a topic of discussion?
If this type of monitoring has been goin on — and the recent leak demonstrates it may be — I’ll gladly admit that President Bush has done nothing wrong (completely non-snarky). It is important that our nation discusses this type of surveillance though. Our technological abilities are progessing at such a rate that they can lead to oppressive tools in the wrong hands.
I’m not partisan shilling here, I’m talking about potential for abuse. ECHELON has been around for decades. If your average tech/poli wonk knows about it, then so does everyone else of impoprt in other countries. There needs to be *alot* of oversight of these tools. The administration bypassing oversight (sorry Darrell, but a few Congressmen and /maybe/ the head of the FISC does not constitute oversight) does not sit well with the libertarians amongst us.
In conclusion, Cindy Sheehan sucks.
Slide
I speculated days ago here in Balloon Juice that we were talking about was an Eschelon type mass intercept of ALL international communication.
Yes, this technology has been around for a while and some have speculated that it has been used but I have not seen any credible evidence that it has been used on DOMESTIC communications prior to Bush and company. I tend to seriously doubt it because it would be counter intuitive as to why so many in the NSA are upset NOW that we are monitoring these communications that they went to the NY Times in significant numbers. I’m sure the darrell’s of the world would just say they are Bush haters, amazing how many of theme there are. Even if abuses occurred in prior administrations does that make it ok to break the law now? I never can quite get this argument.
And as far as Article II power of the President, this from Justice Felix Frankfurter is instructive:
It seems lately that some seem to envy the power of dictatorship. Oooops…didn’t bush?
searp
I agree with slide, I can hear the sound of the giant vacuum cleaner.
The reason it is pernicious is that because without oversight, there is simply no way to assure the public that it isn’t abused. Full stop.
If Darrell is arguing it is OK because it has been done for a long time, I say bad on him. Stupid argument.
I will say it: we do not have thousands of terrorists in this country. When the scope of this program becomes public, it will be clear that this was why the FISA court wasn’t used. That is, the program is clearly illegal.
Does it make us safer? Probably. There are lots of things that would make us safer that we don’t do because they are illegal. I’d feel safer if every gun in the country was confiscated. I might feel safer if every person with a link to the Middle East was denied entry into the country, and those that are here were expelled. Etc. Etc.
We pay for our freedoms, and if we’re not willing to pay, we won’t have them. Bush is essentially saying “trust me”. Well, I don’t, and I shouldn’t be asked to trust him. I would just be happy if he followed the law.