If anyone in the blogosphere has been even more inspired than I have about providing correctives to the NSA “domestic spying” story, it’s AJ Strata, who continues to push through the fog of major media spin (see today’s WaPo and NYT for more examples of such) to illuminate the full context of the story—which points to the action of a pair of rogue FISA judges at the epicenter of this entire controversy (as you’ll recall from this WaPo article, and subsequent discussions by Jonathan Adler, Hugh Hewitt, et al). From an update to Strata’s “FISA Risking American Lives,”:
Right on cue the NY Times comes out showing it is not ‘the paper of record’ but ‘the paper of imbecilic’:
After two months of insisting that President Bush did not need court approval to authorize the wiretapping of calls between the United States and suspected terrorists abroad, the administration is trying to resist pressure for judicial review while pushing for retroactive Congressional approval of the program.
The administration opened negotiations with Congress last week, but it is far from clear whether Mr. Bush will be able to fend off calls from Democrats and some Republicans for increased oversight of the eavesdropping program, which is run by the National Security Agency.
Oh, they can fend it off quite easily. The NSA program is a military action to monitor our enemies and stop attacks. The Judiciary and Congress have no more say on this matter than they do on how to wage any military action. They are not in the loop. Bush is offering them a face-saving out to exercise oversight on the leads passed to the FISA court – which no one in Congress will touch with a ten foot poll. The reason Congress runs to the FISA Court is they do not want to be blamed the first time a lead is not followed and an attack succeeds. They want to dump this on the FISA Court. It is a sad an pathetic joke all this propaganda.
Some, like Lindsay Graham, are just figuring it out. But they won’t admit in public the root of the problem is the FISA judges and not the NSA:
“I do believe we can provide oversight in a meaningful way without compromising the program,†he said, “and I am adamant that the courts have some role when it comes to warrants. If you’re going to follow an American citizen around for an extended period of time believing they’re collaborating with the enemy, at some point in time, you need to get some judicial review, because mistakes can be made.â€Â
Duh. The FBI has been trying to get these leads to the court but they will not listen. FISA judges have decided ‘NSA’ means the information is no good. Somebody better just be honest with America and point out the fact some judges are simply prudes and cannot fathom any valid information coming from the military. And they should be moved off the bench for that whacked out kind of thinking.
What is amazing is the NY Times still doesn’t understand their own story:
Four other leading Senate Republicans, including the heads of three committees  Judiciary, Homeland Security and Intelligence  have said they would prefer some degree of judicial oversight. Their positions, if they hold, could make the negotiations more difficult.
Why do they prefer more ‘judicial oversite’? Well, they want leads from NSA that the FBI deemed serious to be allowed with FISA warrants for surveillance of all communications – just in case the terrorist in question has partners in the US and is readying his attack. Nothing complicated there.
The NY Times has this story so backwards it begs the question are they stupid or simply bad propagandists. No matter, the result is they helped Al Qaeda avoid detection:
“Unfortunately, we’re having this discussion,†he [President Bush] said of the debate over wiretapping. “It’s too bad, because guess who listens to the discussion: the enemy.â€Â
He added: “The enemy is adjusting. But I’m going to tell you something. I’m doing the right thing. Washington is a town that says, you didn’t connect the dots, and then when you do connect the dots, they say you’re wrong.â€Â
Seems Al Qaeda is more awake and aware than the US media. No surprise there either. At least Republican Senators woke up:
But some lawmakers have given glimpses of the conversations, including Senator Olympia J. Snowe, Republican of Maine, a member of the intelligence panel who was prepared to vote with Democrats on Thursday to open an inquiry until the White House agreed to negotiate.
Ms. Snowe, who favors some kind of judicial review, characterized the talks as a “fundamental shift†in the debate. “I think there has been a quantum leap,†she said in an interview, adding that senators were “really trying to wrestle the best way to craft a measured bill.â€Â
That fundamental shift was the realization that the NSA never bypassed FISA but its leads were finally, after 9-11, sent to the FBI and eventually to the FISA Court. Instead of bypassing FISA the administration tried to engage FISA and FISA balked. FISA loved the Gorelick Wall, it was their reason to exist. They cannot stand the idea their reason to exist is now to simply make sure leads from terrorists communicating to people in the US are actually leads from terrorists communicating to people in the US. It is not a rubber stamp, it is a mindless check.
Want proof FISA is the one that will need to change and not NSA? Read this statement without the NY Times spin:
Without offering specifics, Mr. Roberts spoke in an interview last week of “streamlining FISA†and said the N.S.A. would have to be involved in those negotiations.
…
Mr. DeWine is calling for legislation that would explicitly authorize the wiretapping and exempt it from the 1978 law that created the intelligence court to review classified applications for wiretapping inside the United States. The White House has embraced that concept, because it would take away the uncertainties of judicial review.FISA will be changed and NSA will help define how to make the changes.
Hmm. Where have I heard this before…?
QED: Liberals misfired again, but this time truly helped Al Qaeda in their efforts to attack us.
UPDATE:
Proof the Liberals are off target and heading over the cliff is the rantings of one Glenn Greenwald:
Bush followers, led by Karl Rove, and even some frightened Democrats, have loudly insisted that this scandal is actually beneficial for Republicans, because they can use it to depict Democrats as weak on national security.
Ironically funny is when a liberal [ed’s note—Glenn claims to be closer to libertarian than a “liberal”; his newfound popularity with Kos, Atrios, the HuffPo, et al, the story goes, will quickly subside as soon as he once again commences attacking progressive shibboleths with his non-partisan, intellectually curious flair for the misstatement, the selective quotation, and the accusation of bad faith on the part of every opponent he addresses] falls for the trap of playing the Rove card to scare liberals, while complaining about Republicans playing the Bin Laden card to scare the country. If there ever was a perfect example of WHY liberals are seen as totally lost on national security this is it. Rove scares the left because they may lose votes – and history has proven he can. Bin Laden and his comrades scare the country because they kill people – and history has proven he can, as well.
It will all fade away with some nice legislation designed to render legal the President’s four years of deliberate law-breaking. But the NSA scandal continues to dominate the news.
Well, just because the NYTimes, Washington Post and Liberal bloggers are the last to realize what is going on is not a sign the scandal is growing! The fact is, as the FISA Court Judges admitted, FISA refused to follow the leads provided by NSA in the normal progress of the decades old mission. Greenwald cannot find a single instance of an illegal act because there are none. He fantasizes there were some, but he has no evidence – just liberal dreams of political domination. Sort of sad really. Greenwald goes on to review the same stories I did, but weaving a tale of liberal success around facts that illustrate the NSA story has turned away from fanatical fear mongers like Greenwald (â€ÂRove is here, Rove is heeeeeeeere!â€Â).
Liberals are quite humorous, when they aren’t risking everyone’s life worrying about the Rove-Boogeyman.
On an important point, Greenwald and I finally agree: Congress will create some convenient legislation meant to bring FISA in line with what the President and NSA have been doing all along, then declare a sort of victory while asserting it still holds the upper hand in the battle over separation of powers. As I wrote on Feb 11:
[…] the White Houseâ€â€while content to listen to lawmakersâ€â€is unlikely to blink on any condition of an expanded FISA statute that requires the executive to receive de facto permission from the legislature to use any individual component of the military power the CiC was granted under the AUMF. If anything, I suspect it will be Congress, ultimately, who finesses FISA in such a way that it adheres to the President’s use of intel gathering. That is, any new look to FISA will simply put it in line with the President’s current usage, with Congress then claiming for itself victory. The upshot, though, will be that FISA will simply “make legal†what the President, through the DoJ and the NSA counsel, has and will continue to maintain is already legal under his Article II inherent authority. That way, legislators can go back to pretending that FISA has some sort of controlling statutory authority, even though (as the judges and courts referenced earlier acknowledged) it would be Constitutionally impossible to rule against the executive authority on foreign intel gathering.
But those of us who are paying close attention will know better: Congress, wishing not to seem as though it is involving itself in a jurisdictional pissing match at the expense of national security, will retroactively “legalize” what the administration insists (and will continue to insist) has been legal all along.
But bringing FISA in line with the President’s inherent authority seems like a victory for the legislature only through the most jaundiced eyes.
None of which really matters, of course: the idea is to keep us safe, and the program appears to be doing just that, from what we know of it. It is unfortunate that so much of it has been openly discussed, but that cat is already out of the bag.
The only thing left to do know is find the leakers and expose them—and perhaps to discipline the FISA judges whose unethical unilateral actions to block the program were in direct breach of their judicial mandates.
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(h/t Mark Coffey; my previous posts on the subject can be found here.)
*ahem*
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Fixed.
Wouldn’t want the tumbleweeds to get lost in a formatting snafu.
Thanks for the link and the support. I thought I was alone in the wilderness out here. Good to see I am in good company.
So, if great minds think alike, what’s up with us????
Cheers,
AJStrata
My pleasure. Good piece.
This story was and is about an illegal leak and about the legislature branch’s desire to give itself a new (and to my mind, unconstitutional) check on the CiC’s ability to manage a war. Worse, they plan to then outsource that check to unelected secret judges of the kind who throttled the system in the first place, as is now becoming more and more apparent to many lawmakers.
Curiously, Greenwald, et al, haven’t had much to say about the loss of civil liberties we as Americans suffer when a pair of unelected judges decide—against the pronouncement of a FISA review court—to presume thattake the entire foreign intelligence gathering program of the military is under their jurisdiction, and that they are free to treat it as they would domestic criminal proceedings (essentially saying that any warrants that draw their force from the connection of NSA warrantless surveillance and tips to the FBI are illegal).
Was the resignation of the 2 FISA judges (it was 2, right?) before this story broke, related in any way?
It seems to be a part of the culture war as much as a struggle between congress and the executive.
Can this FISA controversy really be serious?
The President of the United States of America, allegedly the most powerful man on Earth, having his very own article in the Constitution he’s supposedly eviscerating, having the world’s mightiest military at his call, is supposedly compelled to query an anonymous little pissant judge as to whether he, the fucking President of the United States of America, can listen in on enemy telephone conversations with U.S. residents?
The fucking little judge gets to decide if the fucking President has grounds to think some guy is a terrorist? Bullshit. The President is contrained only to act reasonably under the Fourth Amendment. And virtually any enemy surveillance is reasonable in wartime. If anybody feels aggrieved they can bring, after the fact, a s.1983 civil rights action to seek damages and the evidence might be suppressed in a criminal prosecution.
Unlike the sniveling little judge, the President, a figurehead and the head of government, is an elected official subject to enormous public pressures from his party, the opposition party and the press (I repeat myself) to use his discretion wisely.
Who can seriously claim that this discretion is better left to a jackass invisible judge rather than the President of the United States of America? The only justification for such a silly-ass curb on Presidential authority is because the proponents of this useless, senseless, and dangerous restriction have already concluded that the current President is evil and that the proponent would trust the discretion of anyone over that of said evil President.
That pretty much sums it up. Which is why defenders of the program are constantly assailed with the question, “would you be for this program if it was President Hillary?”—ironic, given that one of the first posts I ever did on the subject I said I would expect nothing less of, say, a President Kerry.
We are at war. The AUMF made that more than just a rhetorical convenience. But the more distance we put between 911 and any new attacks, the more certain factions in this country want to go back into law enforcement mode and pretend that organized terror groups—which we are slowly and surely decimating in any number of important wasy—no longer wish us massive harm (or, to be kind, no longer have that capability, despite the fact that Bush has quintupled their numbers by going on the offensive, blah blah blah).
The real violation of civil rights, we’re finding out, was from a pair of FISA judges who felt they WERE the law, plain and simple—one of whom actively throttled the program at her own discretion.
Because she was passionate about how wrong it was.
Were the fuck is the check on her? I’ll tell you: the leak, and the subsequent revelation that the President bypassed her whenever he could using inherent authority and Article II powers.
I think I used one too many “fuck”s in my comment. Maybe should have mixed in a “bastard!” or something. You used the optimum number of fucks, though. I respect that.
Jeff, I’m sorry, but you’re WAY smarter than this. Strata isn’t “pushing through the fog”; he’s hopelessly confused. His post makes absolutely no sense. He repeatedly conflates FISA (the law) with FISC (the court), and clearly has no clue how the law, the federal agencies, and the juduciary actually interact. These judges weren’t out of line. In fact, they acquiesed to something they thought was illegal solely because they didn’t think it was their place to step in and stop the program (which is exactly what you and Strata acuse them of doing). The law (FISA) unambiguously says that all surveillance of U.S. citizens requires a warrant. The judges found out that, despite the law, the NSA was conducting warrantless surveillance. Instead of stepping in and stopping this program, which they arguably could have done, they simply told the Bush administration not to use information obtained from warrantless surveillance to get warrants. The Bush administration assured the court that the warrantless information was only used as a sort of early warning system. So the judges told them that if they were going to do that, they couldn’t use that information to obtain warrants. This makes perfect sense, of course, because if you can use warrantless surveillance to get evidence for warrants, the warrant requirement has no meaning at all.
Strata has no clue at all what he’s talking about. He doesn’t understand the law. He doesn’t understand the facts. His suggestion that the FISC judges were usurping presidential power is laugh-out-loud ludicrous. The judges on the FISC court are supposed to act as judicial monitors of executive surveillance by overseeing warrant applications. That’s their job. The judges found out that the Bush administration was doing exactly what the law specifically criminalizes, i.e., conducting warrantless surveillance of U.S. citizens within the U.S. Instead of stepping in to stop it, they merely asked the government not to use this illegaly obtained information as a basis for seeking valid warrants. That’s a highly deferential response and perfectly reasonable response. What else could they have done?
There’s nothing deferential about a judge asserting authority to oversee or limit the President’s exercise of his Article II power to conduct surveillance in wartime. Because the court refused to issue FISA warrants based on evidence the Commander in Chief was clearly Constitutionally authorized to obtain, the Administration decided to forgo FISA and operate more completely under the Article II authority.
There’s no FISA limitation on the ability of the President to obtain intelligence as Commander in Chief, nor could there be. As you note, AL, it is silly to have a warrant requirement that can be met by use of evidence obtained without a warrant, but such is the scenerio when the President seeks a FISA warrant and is Constitutionally authorized to obtain supporting information without a warrant. Such is the redundancy of the law passed by Congress–akin to the War Powers Act supposedly defining the protocol for use of force, even though the President is the CiC having inherent authority to order the military to engage in hostilities.
Jeff:
As AL points out, this post suggests that you’re becoming more and more detahced from reality with regard to the NSA issue.
First, the Strata’s idea, which you cite approvingly, that these NYT and WaPa articles are “liberal spin” is pure nonsense. These articles, if you actually read them, make clear that it is staff of prominent Republicans that are sourcing this article, by sending warning shots across the administration’s bow, letting them know that they’re going to have to cave on this issue. Lindsay Graham has said, in no uncertain terms, that if Americans are targeted by surveillance, you need judicial warrants. He says that because, indeed, it is constitutionally required. The fact that even Pat F’ing Roberts is “breaking” with the administration should give you some pause before you declare that the administration is clearly “winning,” and will benefit politically, from this issue.
Second, I can’t help but to think that you fundamentally misunderstand the issue. If all the President was/is engaging in is listening to “foreign communications” for “foreign intelligence”—then FISA wouldn’t even be applicable. The point is that they are targeting Americans in the US—Americans they claim to believe are tied to AQ—without judicial involvement. That’s illegal (criminal) under FISA. And Congress—which actually drafted and passed the AUMF—clearly isn’t as enamored as you are with the (specious) argument that it acts as an “other” statute by which surveillance of American citizens in the US can be conducted. That’s why all these Republicans are out there talking to the WaPo and NYT. This is no liberal conspiracy.
Hi dumbfucks!
Apparently MF has never heard of liberal Republicans.
There’s nothing deferential about a judge asserting authority to oversee or limit the President’s exercise of his Article II power to conduct surveillance in wartime. Because the court refused to issue FISA warrants based on evidence the Commander in Chief was clearly Constitutionally authorized to obtain, the Administration decided to forgo FISA and operate more completely under the Article II authority.
SS, your argument is, essentially, that the FISA judges should have realized that the statute that created their jurisdiction and laid out exactly what they were supposed to do was unconstitutional and declined to follow it. That’s an absurd position. FISA has been the law for over a quarter century, and until a few months ago, no serious person had ever challenged its constitutionality, including this administration. Contrary to your contention, it is not at all clear that the president is constitutionally authorized to conduct the NSA program. The Supreme Court has never held that the president has the inherent authority to conduct warrantless surveillance domestically, even in the absence of a statute making such surveillance criminal (though lower courts have). And no court, at any level, has ever even suggested that this authority, if it exists, can be exercised in the face of a duly enacted statute which forbids warrantless surveillance. In fact, long-established Supreme Court precedent dating back to Youngstown strongly suggests that a duly enacted statute would trump any inherent presidential authority in this instance.
Nevertheless, you contend that the FISC judges, when they discovered that the Administration was doing exactly what FISA forbids, should not only have unquestioningly approved of this activity, but should also have freely issued FISA warrants based on information obtained by violating FISA, thereby entirely nullifying their very reason for being and making a mockery of their judicial oversight responsibilities. In other words, you’re saying they should have disregarded the law based on an unarticulated theory that FISA is somehow unconstitutional. That’s nothing short of absurd.
McGehee writes: “Apparently MF has never heard of liberal Republicans.”
A classic of the genre! Anti-Bush=”liberal.” Republican Congressmen and Senators see a broken law, but McGehee sees …. LIBERALS!
It seems that the real definition of Bush Derangement Syndrome is: that disease which causes the afflicted to believe that everything the President does is right, no matter how convoluted the logic; when it metastisizes, this Syndrome causes the sufferer to blame all the President’s failures on “liberals.”
All this bloviating about “pissant little judges” and so on is just smoke, as people try to deny the very obvious and simple story here: Congress passed a law requiring warrants when spying on American soil. The President spied on American soil without getting a warrant.
What’s so complicated about that?
Lonetown,
One judge resigned and it was not either of the two mentioned in the article.
Anonymous liberl,
Dude- we disagree. Your insecurity is showing through all those personal attacks without any counterpoints. BTW, having lawyers, judges and a congressman in my family would tend to refute your ignorant claims about what I know or do not know. Next time try to avoid mind reading and stick with facts.
My position the FISA Statutes infringe in Presidential powers is based on statements for Carters’, Bush I’s and Clinton’s lawyers who made the claim it cannot (and therefore to claim it can is an infringement). Also, the FISC Review Court admonished the FISC justices for overstepping their bounds and re-affirmed the President’s rights (since they had infringed on them) in their 2002 decision overturning the FISC.
Nice try kid. Care to go another round?
Mr. Strata,
My post was not meant as a personal attack, but merely a rebuttal of a specious argument. I know nothing about you other than what you write. But your posts on the NSA matter betray a total misunderstanding of the facts, the law, and of relevant legal principles. For instance, just now your write:
My position the FISA Statutes infringe in Presidential powers is based on statements for Carters’, Bush I’s and Clinton’s lawyers who made the claim it cannot (and therefore to claim it can is an infringement).
This is simply not true. Neither Carter, Bush I, nor Clinton ever claimed the authority to act contrary to FISA’s provisions. They claimed that the president had inherent authority to act in ways not proscribed by the statute. That’s very different than saying the president can do exactly what the law forbids, which is what Bush is saying (and doing).
Also, the FISC Review Court admonished the FISC justices for overstepping their bounds and re-affirmed the President’s rights (since they had infringed on them) in their 2002 decision overturning the FISC.
This is, simply put, a total mischaracterization of In re Sealed Case, one that indicates to me that you have never actually read the opinion. The Review Court opinion had nothing whatsoever to do with the president’s inherent powers. The Review Court admonished the FISC judges for adding a requirement to FISA that was not in the statute (but that they thought was mandated by the 4th amendment based on prior cases). The FISC court said that the 4th amendment did not require this. Their rationale had nothing to do with executive authority. Indeed, the issue faced by the court in Sealed Case was the opposite of what you suggest; it was whether FISA gave the executive branch too much power by allowing it to conduct surveillance that violated the 4th amendment. The amicus parties argued that the Patriot Act amendments to FISA were unconstitutional. The Bush administration argued that FISA was constitutional. And the Bush administration won. The court held: “We,
therefore, believe firmly, applying the balancing
test drawn from Keith, that FISA as amended is
constitutional because the surveillances it
authorizes are reasonable.”
The court in Sealed Case by no means meant to imply that FISA is unconstitutional or that it impermissably infringed on the president’s powers. The oft-quoted line from Sealed Case is taken entirely out of context and is, at any rate, meaningless dicta irrelevant to the issues addressed in that case. I’d encourage you to go back and read the case.
Beetbrain, I’ve opposed the Bush Administration on many issues, as has nearly everyone here at one time or another. I was responding to a specific case.
But thank you for blithering pointlessly about nothing relevant. It helps the Vast Right Wing Conspiracy immensely.
AL
My argument is not that FISA is per se unconstitutional, but rather that it must be construed in such a way not to infringe on the Executive’s inherent constitutional authority to conduct war. That is by no means absurd, as limited jurisdiction courts examine the scope of their authority all the time. That FISA has not been seriously challenged in the last 25 years is not surprising, given the dearth of wars on domestic soil during that period.
Surveiling suspected spies and traitors on American soil is fundamental to the conduct of war and is necessarily authorized by AUMF. Once Congress authorizes the President to use force against an enemy, it cannot then actively handcuff the Commander in Chief’s ability to identify and track that enemy. Not a suicide pact, etc.
The constitution requires that searches be reasonable, and wartime national security is certainly a circumstance entitled great deference. FISA could not reasonably be read to impose on the President a higher standard than “reasonable” could it, or criminalize the President’s conducting reasonable warrantless searches in conducting a war? The President in wartime held to a higher standard of proof than police officers searching your impounded car? Talk about absurd.
I think here’s the point of disagreement with the left: they deny we are at war and would like to restrict the President to the exercise of police powers, rather than the exercise of war powers. But, this is war, and it is being fought on home soil, as well as abroad.
McGehee: I think it’s actually quite relevant to point out that branding opponents of Bush’s warrantless spying “liberals” profoundly mmisrepresents his opponents.
Your one-liner suggests that the NSA debate about fundamental questions of Presidential power is something crude and partisan (i.e. only a “liberal” would oppose the President).
In fact, many conservatives who generally support the President and his overall policy agenda are deeply disturbed by his practice of warrantless domestic spying. Likewise, many conservatives are disturbed by the many legal justifications trotted out to support it, most of which boil down to “we’re at war and the President can do what he wants.”
Such critics see these practices as violations of avowed CONSERVATIVE principles like limited government and respect for the rule of law. So your insinuation that Bush’s Republican opponents are just “liberal Republicans” discounts the real possibility that THEY are the true conservatives, and that Bush’s apologists are betraying conservativism in general by embracing a radical doctrine that allows the President, by virtue of his office, to override laws passed by Congress.
To recap: My comment is relevant because I’m pointing out that calling Bush’s opponents “liberals” is about as relevant to the larger argument as calling me “Beetbrain.”
To clarify: This whole debate is a great example of Bush Derangement Syndrome, in that, in my opinion, anyone who chooses to support Bush over the rule of law (and who brands rule-of-law supporters as “liberal”) is deranged.
Wrong focus. It’s the Jihadists who would remove everyone’s rights, not the committees who run the US and Canada.
US intel listeners are welcome to listen in on my phone for the moment. There is nasty work to be done here. Heavy time is coming.
Seems the advances towards an infant democracy in Afghanistan and Iraq have caused a ramping up of Jihadist madness. Cartoons are only one fuel.
Now is the time to put the UN out to pasture and to co-opt democracies to add more support to Afghan and Iraqi voters who risked their lives for a decent government.
Peace and democracy are the two mortal enemies of Emirs and mullahs who enjoy iron-fisted total rule.
Oil gives them endless wealth with which to pay for forces and weapons.
This is now becoming hard-ball.
If we can get through this without making the Chamberlain / Hitler mistake, [leading to nukes this time], we can then go about getting our phone privacy back, making our wishes known via the polls if need be.
phones are technically never going to be private in the future anyway. Seems silly to insist on the technically impossible. TG
“US intel listeners are welcome to listen in on my phone for the moment.”
You’ve been suckered in by all this “the world has changed” crap. Lemme tell you something: nothing is different now than it was on 9/10. We’ve always had enemies. They’ve had nukes for a long time. Sometimes they’re states, sometimes they’re groups, but they’ve always been there, and they’ll continue to be there, forever and ever, amen.
Yeah, “the terrorists” are scary. But our laws and our system are stronger than they are, and we can win without giving up our freedoms.
We’ve done it before, after all. Nothing’s changed.
Christ, get off your fucking high horse already, would you, Beetroot. I have an entire section devoted to my posts about the NSA program.
I don’t ACCEPT the idea that we are “giving up our freedoms.” In fact, I think the real scare tactics are coming from disingenuous civil liberties absolutists (and those anti-Bushies who have suddenly found an alliance of convenience with this position, in between instituting city-wide smoking bans and setting up diversity training classes and university free speech zones).
The NSA is a military program. The question is, can FISA judges, acting under rules of criminal law enforcement, say that info obtained legally thru military wiretaps permitted under Article II cannot be used to obtain warrants—that it is, in effect, akin to an illegal search?
If so, they have effectively broken with the FISA review court and with precendent that allows the NSA to provide the FBI with summaries of surveillance intel.
Why would those summaries be allowed if not to act as tips for obtaining domestic warrants thru FISA?
Sorry, but the high-minded rhetorical ploys you invoke are simply a cover for your desire to see the legislative branch claim an unconstitutional check on CiC powers during war time. And that is because you dislike and distrust this President.
But if Congress wishes to check the program constitutionally, it can accuse the President formally of breaking the law by bringing articles of impeachment, or it can cut off funding to the program.
When I debated Julian Sanchez on this last week on “Hoist the Black Flag,” he pointed out that cutting off funding would be impossible, because it would paint the program’s detractors into a position of looking weak on security—and would be resisted by most Americans.
Which begs the question: are they really concerned about the law here? Or are they concerned about acquiring turf that would allow them to claim control over the executive as a way to micromanage the prosecution of a war (which they would then outsource to secret, unelected judges answerable to no one?)
Take that… you rascal. he he TG
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