Here’s how ACLU Executive Director Anthony Romero characterizes the recent Congressional vote on the NSA “wireless surveillance” program:
Democratic “leaders†have crossed the line and betrayed the will of the majority who put them in power in 2006. This week, a timid Congress caved in to President Bush and his demand for more out-of-control authority to spy on Americans.
Caved. To Chimperor’s demand that he be allowed to act “out of control” and “spy on Americans” — just because.
Yeah, nothing hyperbolic about that.
The FISA gutting legislation voted on last weekend allows for massive, untargeted collection of Americans’ international communications without court order. The law allows for no meaningful oversight by either Congress or the courts and leaves decisions about the collection, mining and use of American information up to the Bush Administration’s Attorney General, Alberto Gonzales.
Geez! What were the Democrats thinking?
I mean, does Rove have dirt on all of them? How else to account for this inexplicable MADNESS?
Let’s turn to the WSJ editors. Perhaps they can help:
To hear the critics tell it, the warrantless wiretapping law passed by Congress this weekend is an immoral license for a mad President Bush and his spymasters to eavesdrop on all Americans. For those willing to believe such things, mere facts don’t matter. But for anyone still amenable to reason, the deal is worth parsing for its national security precedents, good and bad. The next Democratic President might be grateful.
The good news is that the new law will at least allow the National Security Agency to monitor terrorist communications again. That ability has been severely limited since January, when Mr. Bush agreed to put the wiretap program under the supervision of a special court created by the 1978 Foreign Intelligence Surveillance Act (FISA). The new law provides a six-month fix to the outdated FISA provision that had defined even foreign-to-foreign calls as subject to a U.S. judicial warrant.
[…]
But it’s important to understand for the debate ahead why all of this has become so ferociously controversial. Opposition from the Democratic left to this intelligence program isn’t merely part of the partisan blood feud against a weak President near the end of his term. It is part of a far larger ideological campaign to erode Presidential war powers. Goaded by the ACLU and much of the press corps, many Democrats want to use the courts and lawsuits to restrict Mr. Bush and future Presidents in their ability to gather intelligence in the war on terror […].
In that regard, even the weekend deal is far from encouraging. For example, the new law does not offer explicit liability protection for telecom companies that cooperate with the wiretap program. Instead, the most Democrats would accept is language to “compel” the cooperation of these companies going forward. The Administration hope is that this “I had no choice” claim will be an adequate defense against future lawsuits, but in the U.S. tort lottery that is no sure thing.
Meantime, Democrats blocked any retroactive liability protection for companies that thought they were doing their patriotic duty by cooperating with the National Security Agency after 9/11. The goal here isn’t merely to open another rich target for the tort bar. It is to use lawsuits to raise the costs for private actors of cooperating with the executive branch. Even if they lose at the ballot box or in Congress, these antiwar activists still might be able to hamstring the executive via the courts.
That’s also the explicit strategy in trying to expand the reach of the special FISA court to all wiretaps, foreign and domestic. The left is howling that the NSA will no longer need a FISA warrant for each wiretap (of which there were 2,176 in 2006). That’s the best part of the bill. But the Administration did concede to let FISA judges review the procedures for wiretapping up to 120 days after the fact. If a judge objects, the wiretapping can at least continue, pending appeal all the way to the Supreme Court.
This is the kind of review that judges are neither allowed to perform under the Constitution, nor equipped to provide as a matter of policy. Whatever the merits of the 1978 FISA law, no Administration has ever conceded that that law trumped a President’s power to make exceptions to FISA if national security requires it. To do so would be a direct infringement on the President’s Article II powers as Commander in Chief to protect the nation against its enemies.
The courts have been explicit about this, with the FISA appellate court asserting in a 2002 opinion (In Re: Sealed Case) that “we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.” FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed.
In the weekend deal, the Bush Administration grants the FISA court power to review procedures even for foreign communications, which is unprecedented. Under Article III of the Constitution, the courts are granted the power to settle disputes. The judiciary also has power under the Fourth Amendment, which gives courts the ability to issue warrants. But nowhere does the Constitution empower our nation’s judges to serve as foreign policy advisers or reviewers of intelligence policy. Judges have no particular expertise on intelligence, and in any case they are unaccountable to voters if their decisions are faulty. Recent news reports have suggested that several current FISA judges are uncomfortable with making such intelligence decisions, and rightly so.
[…]
The weekend law expires in six months, and it would be nice to think enough Democrats would put aside this ideological obsession to work with Mr. Bush on a more permanent wiretap statute. Given the current state of Beltway rationality, we aren’t optimistic.
As negotiations unfold, we hope the President resists any deal that compromises the ability of his successors to defend the country. In 18 months, Mr. Bush will be leaving office, but the terrorist threat will continue. The stakes are too large for any President to accept new judicial limitations on his ability to track terrorists at home or abroad. Rather than accept such limits, Mr. Bush could use Congressional recalcitrance as an opportunity to withdraw the terrorist surveillance program from FISA authority, and thus toss the issue squarely in the middle of the 2008 Presidential campaign.
If only.
But frankly, this is a constitutional matter — and therefore shouldn’t be subjected to any kind of popular vote, or any kind of judicial meddling. Regardless of how Glenn Greenwald(s) has framed the issue, this entire fight has been, at base, a battle over separation of powers, with the Legislative branch hoping to use the judicial branch to constrain the powers of the Executive — and in so doing, moving the government toward a parliamentary-style system in which Congress is granted powers to micromanage foreign policy, even as the responsibility still falls on the shoulders of the President and his or her administration.
For a long time, the Bushies — and Cheney, in particular — seemed determined to push back against the erosion of separation of powers that they believed had been the hallmark of several prior administrations.
Now, it appears that they have either abandoned the idea out of expedience or confrontation fatigue, or else are going to allow the Republican presidential challenger for 2008 use the issue as a campaign point.
Pragmatism? Or surrender?
(h/t Terry Hastings)
Pragmatism.
SB: accurate self
Oh. Then nevermind.
What’s next, will the Democrats have the courts approve military targets and tactics? I wonder how they would like it if a Republican Congress were micromanaging a Democrat President’s foreign policy. Or have they bothered to look that far ahead?
I think pragmatism, also. This is a really big issue for the average voter to try to get his mind around. It is going to take someone with better communication skills than the Chimperor to pull it off, I’d reckon. That is the main reason Fred T is hovering at the top of my list, I think his ability to communicate is absolutely key to getting anything worthwhile accomplished.
Sure, but I think also a lot of people on the left and in the media are genuinely worried that they and/or their pals are going to get caught saying some sick hateful shit in some chit-chat with their overseas comrades. This is because a lot of them are in the habit of saying sick hateful shit to their overseas comrades.
Lucky for them, the public’s memory is very short in most cases when it comes to politics. If it cannot fit in a soundbite, it won’t go anywhere. They would most certainly complain about it if the shoe were on the other foot.
I’m on that Tony Romero’s list and those are the most unhinged emails I get. Makes John Kerry look downright moderate.
tw: Emperor sorely
It doesn’t make sense to me that they’d hamstring the executive, because decisions in the executive can turn on a dime. You don’t have to persuade a couple-hundred people to go along with you, all of whom are continually beholden to their numerous constituents, where as a second-term president? Not so much.
So they really ought to be looking to strengthen the executive, because it’s easier to elect one Democrat as president than to get a majority in Congress. Sure, there’s a single point-of-failure on that one, but still.
Pragmatism? Hardly. Opportunism is more like it. If they were pragmatic, they’d keep the executive as strong as it constitutionally ought to be for their next spin in the White House.
…the U.S. tort lottery… Oh, for the days of yore, when I was young and believed that in our justice system, the Truth would always out!
Sweet innocence of youth, where have you gone?
I remember in grad school that when I started I thought you could actually do any research that you wanted to. The truth is, you can do any research that you can get funded. If you’re really lucky, every now and then the two align.
Completely unhinged propaganda from the ACLU.
This is yet another lost battle by the White House Admin in terms of explaining what this means to John Q Public. Bush blew it when he tried to explain the war in Iraq, and now he’s blowing it by not properly explaining the need to MONITOR FUCKING Al-QAEDA CALLS FROM PAKISTAN.
You would think that this would be realtively easy to explain to people. You would be horribly wrong. The WSJ does a great job of breaking this issue down, but c’mon-everyone left of center thinks the WSJ is a wingnut godbag newspaper (albeit sans GAY PORN COCK OF LIES, but still), and pretty much ignores what they have to say just like they did with that op-ed piece from the former KGB guy yesterday.
If Bush probably couldn’t be a worse communicator if he didn’t speak the language at this point. And the worst part is that the Dems eat it up like candy, and then throw the misconceptions (BOOSH IS READING YOUR MAIL!!!LISTENING TO YOU CALL YOUR GIRLFRIEND!!!PANICPANICPANIC!!!) to the nutroots like red meat to the wolves.
JESUS would you hurry up and run Fred? We seriously need someone on the right to start communicating these things in a way people will understand.
“Democratic “leaders†have crossed the line and betrayed the will of the majority who put them in power in 2006.”
Funny, I just can’t recall wireless surveillance of foreign terrorists being a real big issue in the last election. But maybe that’s just me. If I was a member of an organization started by an avowed communist, maybe I’d feel different.
Completely unhinged propaganda from the ACLU.
As if there were any other kind.
Maybe the solution is to put an unarmed federal judge in every squad, one-for-one with every sargeant. That way we could get a ruling every time someone needed to shoot a jihadi. Naturally, we’d need stenographers to accompany each NCO to draft the motions for firearms discharge and enemy counsel to argue against same as the motions are filed. The enemy, obviously, needs legal representation so the process is not a hollowed-out, Chimprovised sham. Only in this way can we guarantee that the war-making process moves along a path of true justice.
How about Number 3–exhaustion? Bush has taken seriously his vow to protect the American people, and for his efforts has gotten nothing but pure hate. A lesser man would have given up long ago. We owe him our deepest gratitude for toughing it out as long as he has.
As President, he’s entitled to try every reasonable means at his disposal to keep the enemy at bay. Since no previous President has ever had to protect us against religious psychotics, Bush has had to explore legal terra incognita in his efforts to uphold his oath of office. That some of these methods might be controversial was to be expected. Fine, let’s have an honest debate. But give him credit for acting from a noble motive. Bush has suffered a degree of villification from the Left beyond anything I’ve ever seen. The Left is despicable.
Fine, let’s have an honest debate. But give him credit for acting from a noble motive
Not from the left, not at all, no way. Hell, impugning the motives of W is a fucking cottage industry here and in Europe.
“But for anyone still amenable to reason…”
All six of us…
TW: Communist chapter. In an ACLU thread. I have excellent blood with this irony rich diet…
Apparently no one ever has heard the story of the little boy who cried wolf. Why should anyone ever believe anything the ACLU says?
“Meantime, Democrats blocked any retroactive liability protection for companies that thought they were doing their patriotic duty by cooperating with the National Security Agency after 9/11. The goal here isn’t merely to open another rich target for the tort bar.”
The goal is to enforce section 222 of the Telecommunications Act. Which states:
“Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers, including telecommunication carriers reselling telecommunications services provided by a telecommunications carrier.”
But these days, patriotism means something other than following foundational principles of major sectoral regulation.
Under the old Fisa rules, one would have needed a warrant to pick up Ramzi bin Al Shibh’s call from Yemen to Florida in 2000. Much of the NSA clues that added up to the August PDB would not have covered; since they did not
have a warrant. We know that the FISA rules prevented intercepts on the persons holding the three soldiers; at least till Private Anzack was killed. It literally seems the ACLU and by the looks of it; even my local fish wrap, the Miami Herald, arent’ on September 10; they’re fixed sometime around 1975; The Rockefeller Commission hearings.
Who wrote that regulation, adran? Do they have the right to change it as they see fit, in keeping with evolving situations?
Apparently no one ever has heard the story of the little boy who cried wolf.
The moral of which, to us Terrans, is that if you lie all the time, no one will believe you when you tell the truth. To the Cardassians, it’s that you should not tell the same lie twice.
It’s just the ol’ are you still slapping your wife? routine a la Glenn Greenwalds. Scream long enough and someone starts to take it seriously and moves back an inch or two. Executive power erodes a smidge more, battle won until the next round.
Spinning and framing the argument away from the constitutional shift that is really the target while crying for civil rights…without getting too overly, intelligently, consciously descriptive in what the legislation really, actually is about.
Good post, JG.
“I wonder how they would like it if a Republican Congress were micromanaging a Democrat President’s foreign policy. Or have they bothered to look that far ahead?”
Try reading Wesley Clark (ahhh!) describing what it took to get permission to bomb something in Kosovo. The Clinton administration didn’t need outside interference to bring about micromanagement…and, oh, the tales I could tell of 1997 re: Albania, Congo (then Zaire) and Bosnia…whoo.
Personally, how the media is handling this story is yet another perfect illustration of their perfidy. When they thought they could lay this at the feet of President Bush, it was domestic spying. Once it became bi-partisan, it became terrorist surveillance, yet they still tried to blame President Bush, and absolved Pelosi and Reid, for their actions (which happened to be one of the only things either of them have done that I agree with). Go figure.
“But frankly, this is a constitutional matter  and therefore shouldn’t be subjected to any kind of popular vote, or any kind of judicial meddling.”
What does that mean? I think you mean something other than “constitutional matter.” Courts get involved in “constitutional matters” all the time. In fact they are the judges of those matters. Also the constitution has a reasonableness requirement, and depending on how you read it, maybe even a warrant one. Saying its simply a “constitutional matter” doesn’t say much.
I think you mean to say sometihng else, like purely an Article II matter. Even then, courts are arbiters of those powers.
Lastly, there is also the issue that no matter what Article II may allow, there may still be a need to create oversight and other mechanisms that make sure that any activities don’t go outside of Article II powers.
Surrender. By the President.
He should veto the bill and send it back to Congress. Tell the pansies that they can make the powers permanent instead of a six month hall pass. Then get every Republican to get the word out that intelligence is vital to our safety, not just for the next six months, but for the rest of our lives.
Then make some statements that the CIA is incompetent and can no longer be relied upon to gather intelligence, so we have to empower the NSA to actually find stuff that can be used.
– The ACLU (American Communist League Underground) Executive Director Anthony Romero should be “gutted”, and him and his staff of provocatuers shipped to a Marxist based country of their choice for good. Kos and his merry band of Communist sympathizers should be sent along to attend to Romero’s every need.
“Even then, courts are arbiters of those powers.”
No. They are not. The final arbiters will be “We, the people” until this republic disappears. The Executive can, has and will tell both the Legislative and the Judicial to “go fish” upon occasion and there’s not a dman thing the other branches can do but appeal to the people for relief by ballot. It’s that odd separation of powers bit that pops up every now and again. It seems that the Founders just didn’t trust the judicial or legislative branches with “enforcement” outside of the legislative power of the purse.
“The final arbiters will be “We, the people†until this republic disappears. ”
Court or people, we are told that because it is a “constitutional matter,” this shouldn’t be decided by courts or by “popular vote.” So there is your “We, the people,” marginalized along with the courts.
“It seems that the Founders just didn’t trust the judicial or legislative branches with “enforcement†outside of the legislative power of the purse.”
What makes you think it was a question of trust?
I believe the point was it wasn’t something that should be lawyered or submitted to vote, but rather should be decided by consulting the Constitution.
Key paragraphs from the WSJ article, because the debate really is very much LARGER than the oversight duties of the FISA court.
“But it’s important to understand for the debate ahead why all of this has become so ferociously controversial. Opposition from the Democratic left to this intelligence program isn’t merely part of the partisan blood feud against a weak President near the end of his term. It is part of a far larger ideological campaign to erode Presidential war powers. Goaded by the ACLU and much of the press corps, many Democrats want to use the courts and lawsuits to restrict Mr. Bush and future Presidents in their ability to gather intelligence in the war on terror […].”
“…this entire fight has been, at base, a battle over separation of powers, with the Legislative branch hoping to use the judicial branch to constrain the powers of the Executive  and in so doing, moving the government toward a parliamentary-style system in which Congress is granted powers to micromanage foreign policy, even as the responsibility still falls on the shoulders of the President and his or her administration.”
(“confrontation fatigue” a good phrase, wear ’em down being another aspect of the strategy)
I actually think it is important and valuable for the NSA to have access to communications, assuming there are competent humans evaluating the information. However, the NSA needs to narrowly define “preventing terrorism,” and innocent citizens of any country should be absolutely indemnified from any legal action beyond that scope.
But in the end, this administration will do whatever the hell it wants, because Deputy Dawg Gonzales has its back.
not exactly. “we, the people” had our say when we voted for the Executive
What if someone confesses to murder cynn? Or smuggling drugs? Should the NSA pass that information along to the proper authority, or just let it go?
In my opinion, they’d have to try to get a probable cause warrant. Same rule applies to any cop that stops you for speeding and smells a dead body in your trunk. If what they intercept doesn’t relate directly to “preventing terrorism,” as defined, then it falls outside the latitude I am willing to give them.
Evidence?
Oh, and who originally said, “Stroke of the pen, law of the land. Kinda cool”?
Actually, on second thought, since NSA is specifically tasked with national security, they would have no business taking any action on any other matter. And of course regular law enforcement agencies would be prevented from warrantless spying.
I’m still betting on international conspiracy…disguised as pragmatism.
Really though, if I wasn’t totally incoherent I might have written something close to this post.
TW: perverts such. Is this thing parsing my Pub comments?
TW:
Rob, those handy signing statement thingys are all the evidence I need.
That would have been interesting if this had been vetoed. As stated above, our security requires longer than a 6 month window. That position could be sold, easily, should the Administration actually choose to defend itself every now and then. Unfortunately, I do see President Bush duking it out with the Dems in his remaining months, which will require that the ”o8 candidate be excellent at communicating the right mindset.
I generally agree cynn. I only ask because, I find myself undecided on the issues I brought up. On the one hand, the extremely narrow focus can help with abuse of power issues, and on the other, some crimes will go unpunished.
I should have thought that was obvious from the context, but I’ve been wrong (and lots) before…
Is that your final (non-)answer?
“I should have thought that was obvious from the context, but I’ve been wrong (and lots) before…”
But that is still unclear, because consulting the Constitution gives us that searches and seizures must be “reasonable;” that the judicial power of the united states extends to all cases arising under the constitution; and that Congress has the power to make laws that are “necessary and proper” for carrying out the powers of the government.
And all that will involve the courts and lawyers. Just as it will involve lay people reading the constitution and thinking they have the answer.
So what is it that your consultation of the constitution gives us? and why does it not give us the 4th amendment, or the judicial power?
A cop who smells a dead body in a trunk needs a “probable cause warrant?”
Agreed, but the narrow focus isn’t just to prevent abuse of power, but also to keep the resources of the intelligence community focused on the gathering of intelligence, as opposed to evidence.
Sure, I’d like it to be possible for the NSA to pass along information that may indicate criminal activity to the appropriate authority. But I do not want the NSA involved in the collection of evidence in any way shape or form. Nor do I want intelligence gathering agencies to be in any way responsive to the wants and desires of those charges with prosecuting crimes.
One, because it may compromise our freedom, and two, because it could be used to compromise our intelligence gathering efforts. Law enforcement agencies should be free to pass along information to any intelligence agency as they see fit, but there should never be an expectation of anything beyond simple acknowledgement of receipt of the information.
Look, they’re hoping that their guy will win in 2008 and he’ll need this power to do his job. Deep down they know there’s no controversy or problem with the wiretapping, it’s just an easy angle to attack from, knowing their clueless followers and willing accomplices in the legacy media will pitch in.
BTW, cynn, that quote was from Clinton, commenting on Executive Orders.
“Is that your final (non-)answer?”
My answer was responsive. With the help of his army of lawyers, Bush is pretty much telling congress and the people that HE alone decides which, if any, aspects of legislation he intends to observe. Why not just veto the bills and make congress put up or shut up? Tortuously worded signing statements allow all kinds of power and wiggle room for the executive. That’s evidence enough for me that Bushies feel free to ignore the law.
ThomasD
I agree, however, it would be nice if we learned the lessons of our not so distant past and did not set up a reverse copy of the wall that existed between police and intelligence pre 9/11.
What makes you think it was a question of trust?
– Its not something you have to think about and opine on, its spelled out in the very words and actions of the founders. You’d need to be dumber than a bag of hammers to miss the tenor of “limiting federalist powers” ozzing out of every pore of the framers. the degree of concern among the attendee’s ran the spectrum from casual to frenzied. One of the three concerns; “Special imterest groups and their influence on the government”. Yep, the more things change the more they stay the same.
– Summer remedial reading assignment; “Federalist papers et al, and the general history of the two signings, and actions, speeches, ect., leading up to codification.
– For everyone else, review the “forgotten amendments”, IX, and X, You know the ones, the ammendments that Washington steadfastly preteneds never existed. They get away with it because it would practically take a civil war to actually enforce the law. You are a citizen of your soveriegn State first, A memebr of the Federal Union of States next (United States of America), which Federal Union has exactly the Soveriegnty, no more no less, and only those powers as allowed by, and agreed too by vote by States majority, and which can be recinded at any time, and those votes are decided by the voting of the States citizens, through their Representatives.
– So yes, the bottom line is that all US limits, and granting there of of Federal powers/laws, lead back to the citizens voting power. We just don’t as a practical, enforce said power.
TW: “Reichstag insuring” ….Sometimes it can certainly seem that way, since we allow exactly what the framers feared the most – a runaway Fed.
You realize that Bush isn’t the first president to issue signing statements, don’t you? And why are you ignoring the source — and context — of the quote? Clinton seemed quite happy to create “the law of the land” with the stroke of a pen. Does that sound like an executive run amok? If not, why not?
And that it’s hard to believe someone’s going to use an “army of lawyers” to “ignore the law”. Because if you’re going to ignore the law, the last thing you need is an “army of lawyers”. How do people who are primarily trained to deal with the law going to be useful to ignore the law? Or are you defining “ignore” to mean “not apply it the way I want”?
Oh, that’s funny. My first comment was flushed, so I’ll simply recap:
Clinton may have used signed statements; not saying they’re inherently bad, just need to be clear
Nothing wrong with the stroke of a pen being the law of the land, as long as it’s a clear endorsement of the legislation on the table
It takes an army of lawyers to ignore the law, because that’s your smokescreen
What if it takes an army of lawyers to fight off partisan attacks?
Smoke Van Thorn: Sorry to be so late in reply. As I understand it, the cops can impound the vehicle, but need to get a search warrant before they can open the trunk. That wasn’t the reason for the original stop. I have seen drug cases tossed because “evidence” was found in a welfare check. The cops can secure the site, but they need a warrant specifying what it is they want to seize. And believe me, judges scrutinize their returns.
As to this surveillance and data mining, I truly do not trust this government to manage or use it effectively, especially in the midst of Bush cultists. I think it’s a technique that’s of use, but the current administration is a stumblebum bunch of goofs. I think this unfortunate legislation is the result of an general impasse, and the Iraqi summer vaycay fever. See you in Cancun!
Mr. Taylor: If what you say is worth a damn, it doesn’t take anybody to help you.
Cynn, you are not that naive. I refuse to believe it of you.
“It takes an army of lawyers to ignore the law, because that’s your smokescreen”
– Which is a gobblygook way of just saying right out what you really feel; that the Presidential Constitutional power to veto is what you think is bad. So then th Pres. should just rubber stanp all legislation. Period.
– But wait. What if its a sitting Dem President, vetoing the evil Reps passed legislation. What then. Suppose the Reps in Congress managed to attach a rider to a large bill calling for a National Constitutional vote on same sex marraige, or Roe vs Wade. How would you feel then? If you’re honest with yourself, you know neither issue would gain a national majority, at least not now. Maybe in 50 or 100 more years. But there the Pres. would be, unable to stop what you would consider disasterous legislation.
– See how it works? The Presidential veto is there to guarentee neither Party has a monopoly on legislation, particularly things he thinks are not in the countries best interests, and it works both ways.
TW: “bulky 1851” ….Maybe a little greying around the edges, but not bulky really….
McGehee: You’re just making fun of me. Why wouldn’t I expect the LEADER OF TEH FREE WORLD to be able to articulate his own goddamn policy positions without some pupptmaster jammed up his butt?
– Easy now cynn….chimpyMcflusterbutt is still working on “nukleer”
cynn – You should have taken longer to reply – you might have gotten the right answer.
Big Bang Alarmist:
No. The president should not rubber-stamp all legislation. I have a childish belief, taught to me in school, that the two branches of government actually communicate with each other, and arrive at a conclusion. If the people don’t like it, they throw their asses out.
Point Second: As far as I know, there is no redress for me, as an aggrieved citizen, to influence legislation. I can throw their asses out, I can try to effect local change via the referendum.
And what was your point? Was I even replying to a question?
And what would that right answer be, Smoke Van Thorn? There’s a substantial pool awaiting your answer. You know, a drinking game!
“…I have a childish belief….”
– Maybe it wold be a kinder gentler world if that worked. Unfortunately, the Easter bunny doesn’t get you very far in running a country. Some people hate the Easter bunny.
…So you got my point about the two branches of government?
If it’s unclear, I have, under greatest hits, a whole section on the NSA / FISA issue, including legal parsings. There was simply no reason to go into all that again for purposes of this post.
– Yes. Thers the world as we wish it could be, and the world we actually live in every day. Some things are self-evidently beautiful on paper, but can’t make it through the human obsticle course of divergent idea’s, not if theres more than one person in the room. But then again, some think thats one of our strengths, and avoids the dead end monstrosities of purebred (collectivistic) thinking, which history shows has had 100 years of abject failure with the bodies pilling up right and left. So for now, the Partisan system, based losely on a States rights/citizens vote bipartisan structure, still, with all its warts, seems to be the only thing that can survive human perfidy, and lust for power. Damn tough to be an effective subversive in a wide open society.
– The SecProggs are relearning that lesson, even as we write.
Here is one of my previous posts on the subject that touches in more detail on the themes outlined in this post.
You can call them, you know. Or even visit with them. Tell ’em what you think, want, etc…
Well, yeah — but there was, as there usually is, a serious point behind the fun-making. Whereas your
clearly did not.
Which, that may be why I make fun of you sometimes.
(TW: Pacifism facts — great, now the Turing machine is trying to hijack the thread.)
The old URLs changed when I moved over to WP. Here’s another post that may be of interest.
Unfortunately I don’t have time to go through them all, but the point is, we have hashed and rehashed the legal niceties. So yes, I think Article II powers are clear; I think the 4th amendment argument silly; and I think the Constitution is clear enough that no kind of judicial finessing is necessary to interpret it on the president’s power, during war, to order and gather signals intel.
Clearly prove your point, please. Beside the ambient mumbling.
“So yes, I think Article II powers are clear; I think the 4th amendment argument silly; and I think the Constitution is clear enough that no kind of judicial finessing is necessary to interpret it on the president’s power, during war, to order and gather signals intel.”
Thats better than “just look at the constitution.” And the fact that you tell me its so much that we can’t look into it right now means it is not so simple. As no doubt you have spent much time on it.
The 4th? Your links don’t really address it. You think the constitution is clear on article II, which says ‘commander in chief.’ Its got something else even clearer too: searches and seizures of the people have to be reasonable. There’s really no getting around those words. And the courts are going to decide that, or at least people will argue it based on what courts have said in the past. So its not just a question of looking at the constitution. Because it tells us two different things, even if we assume that ‘commander in chief’ means what you think it means.
But the courts role won’t be just as constitutional arbiter. They’ll also be there, along with the legislature, to make sure that the Article II powers aren’t overstepped. To make sure that what is being gathered is foreign signals intel.
Foreign signals intel – If I call my neighbor in Indianapolis, I understand this to be a local call, domestic. If I call my brother in Park City, UT, this is also a domestic call. If I call my other brother in Iraq, it is clearly foreign. Reverse any of those calls and they remain the same.
I do not see how a foreigner can expect Constitutional protections when their call is crossing into our country, any more than the protections afforded them when they physically cross a border into our country.
cynn – The answer is that, under the facts of your hypothetical, there is PC for a search of the trunk.
An executive order isn’t a signing statement. It’s a whole ‘nother beast. Really, cynn, if you’re going to argue about executive power, you should be familiar with the details.
An executive order is a directive from the President to the executive branch to do X. It has nothing to do with legislation; Congress has no chance to vote on it. Clinton was stoked over the idea that he could just write something down, slap “executive order” on it, and it became effectively federal law — or regulation, or policy, or whatever you want to call it.
If an overly-broad signing statement bothers you, how can someone getting off on that particular ability not bother you?
As I said, I didn’t have a chance to go through and re-read all the entries and all their attendant links, but I think it was Andrew McCarthy [ah, here it is] who put out a list of everyday searches that would be troubled by such a reading of the fourth amendment that would make the capturing of signals intel between terrorist hotspots and locations within the US during a war against an enemy that embeds in the host country “unreasonable.”
And of course, the NSA can’t use the intel to prosecute, so the fourth amendment argument is moot.
And no, I wasn’t arguing against the (pedestrian) observation that we need people to interpret the Constitution. Just that, in my reading, the plain language of Article II — along with its attendant precedent (or, if you prefer, conspicuous lack of precedent with respect to courts interfering with a President’s CiC powers during war time) is clear enough that we shouldn’t be allowing judges to make strained readings that conceive of “checks and balances” in a political sense, nor should we be putting the fate of the program up to popular vote.
Perhaps it would help if, instead of trying to pick at my turns of phrase, you explained why you believe the program to be unconstitutional, and what role you believe lawyers (who bring cases on behalf of affected parties), voters, and SCOTUS should play.
Because as McCarthy points out in one of the linked pieces, “In the real system of separated powers devised by the Framers, the courts of the United States had no role  none  in defending this nation from foreign threats. That was to be the job of the president and the Congress, which is to say, the officials actually accountable to the citizens whose lives were at stake.”
And Congress cannot, of course, make laws that simply by dint of their vote take away powers granted to the President by the Constitution.
Rob Crawford: Sorry, I didn’t realize you were referring to exec orders in Clinton’s case. I’ll admit I’m not an expert on presidential trivia and constitutional law. However, as someone who might be affected by a president’s whims, I object to any action a president takes that is not subject to oversight by the legislature and challenge by the courts.
Cynn —
Then you object to the framer’s intent. The courts are a coequal branch of government. They don’t get to determine foreign policy, and they don’t bring challenges. They can, of course, determine if a program used by the Executive, or devised by Congress, is Constitutionally sound — but they have been traditionally loath to consider such questions with respect to war time powers, preferring instead to give the executive wide latitude.
And recall, the FISA Court review saw no problem with the NSA program.
Where voting comes into play is in deciding who you wish to hold the power of the executive. And if you wish it to be someone who will not use his or her Executive powers to sign off on a program like the one in use now, vote for someone who promises not to. But the power to do so is not in dispute. And this is what I meant when I wrote about consulting the Constitution, where that power is clearly delineated.
Legislative “oversight” does not include voting for themselves powers the Constitution grants the President.
FISA cannot constrain the President’s war powers over signals intel, and, if you can believe the Carter era folks involved, it was never meant to.
Politically-speaking, though, Congress can always defund such programs. At which point Americans can respond by either agreeing with this political gambit to constrain the Executive’s powers, or else decide that they’d rather have folks representing them who take national security seriously.
Congressional Dems don’t want to put itself in the position of having to explain to the American electorate why they voted to take away funds for a program designed to track terrorists, so they are trying to rely on the courts, instead, to do their dirty work.
“Look, they’re hoping that their guy will win in 2008 and he’ll need this power to do his job. Deep down they know there’s no controversy or problem with the wiretapping, it’s just an easy angle to attack from, knowing their clueless followers and willing accomplices in the legacy media will pitch in.”
I agree with this observation. It’s amazing to me how rapidly the faithful (aka possibly as “clueless followers”) jump onto whatever bandwagon du jour is put out there for them to jump onto.
Also, any future Democrat President would not want his/her powers eviscerated, watered down, whatever.
I agree with your linked comments about Woodstock, too. I’ve watched some of the stuff I lived through get (wrongly and ridiculously) elevated, sanctified, attempted to memorialize, whatever.
And the phenomenon (and its motives historical “grandeurizing”) can be a little unsettling.
“So yes, the bottom line is that all US limits, and granting there of of Federal powers/laws, lead back to the citizens voting power. We just don’t as a practical, enforce said power.”
It seems to me that, these days, students in the government schools and citizens in general are more often inculcated with the notion of the “power” of government and less often with the notion that it is they who are, (first, last and always) the source of that power. Hence, apathy (not entirely unintentional, maybe) and a kind of “my vote doesn’t matter” mentality ensues.
Just a quick comment on the WSJ. I am a subscriber and read it every morning. I am want of those people who consider the editorial page the be “out of wordely” right wing, and thus read them every morning with a chuckle (or a high-minded liberal bias (I’m sure some would find other adjectives). However, I find their news content to be the best, period. Their investigative reporting just outstanding. Me, being a liberal Democrat, have found that when it comes down to a reliable source to argue a lot of my points, use the reporting of the WSJ more than any other source. I’m pretty sure that’s one of the reason Ruppert bought them: to fix that problem.
Regarding this issue here: Would anybody care to comment on any reasonable accomodation (politically speaking) to prevent a President to abuse her power regarding electronic monitoring of the American people? In particular, I am interested to know how to deal with a President or Administration elements that may use their ability to conduct electronic monitoring without any oversight. I include a Democratic president in this question as well.
“And recall, the FISA Court review saw no problem with the NSA program.”
Wasn’t there a recent ruling against them that caused them to seek this law? Why did the Executive even seek to change this law if Congress can’t constrain them? Maybe the answer is that the law actually increases executive power: because now telecoms companies are compelled to follow these orders. And compelled to be quiet about them. That certainly is not something the president can just order. Also they now get a going forward immunity from privacy laws for releasing this information. That also increases the executive’s ability to spy beyond what a naked Article II power without congressional authorization (actually in the case of telecoms privacy, contrary to congressional standards) allows.
Lastly, you’re still not making the distinction between laws which reduce Article II power and laws which are meant to ensure that only Article II power is exercised when they engage in intel gathering. I’d say FISA was the latter, not the former. And there are lots of ways to do the latter.
“â€â€having convinced themselves that laws have indeed been broken, they are now compelled to find those instances of malfeasance to vindicate their lengthy hypothetical dissertation (each one of which proceeds from bad faith and lack of fact), or else be revealed for overreaching partisan opportunists disguised as civil libertarians.”
Nonstop witch hunting (the true preoccupation of many in Congress) seems a pretty good reason why approval ratings these days hover around 3%.
Maybe the ‘merican peeples aren’t quite dumb enough yet to miss the obvious.
https://proteinwisdom.com/?p=5796
Here’s a possible solution: Grant the authority to conduct the monitoring with the necessary tools and flexibility the Administration needs to do it’s job of protecting the country against terrorism. Then pass legislation clearly defining the scope of that authority. Legislation should also clearly define what is not allowed; for example: Spying on political adversaries with the intention of gathering intelligence on them in order to obtain a political advantage; Spying on U.S. citizens involved in Constitutionally-protected dissent, protest, and similar activities; Spying on anti-war groups, and other civil rights groups; Using information collected in the anti-terrorism spy program to prosecute other types of crimes; Long-term retention of information that has been deemed not related to terrorism surveillance; Using the information for any other purpose whatsoever, not specifically related to only issues relating to terrorism.
And finally, Congress should set up a highly classify agency with the objective of oversight of Administration actions; that oversight should be conducted after the information has been collected, analyzed and used in the terrorism fight. All relevant data, finding, reports, should be turned over to that agency so it can be ascertain that the information was used as prescribed and there has been no violations. None of this put any restrictions or slow down the ability of the administration to conduct surveillance in real-time and unhindered (as long as it is narrowly focused only on terrorism.) As a liberal Democrat, if this compromise is presented to me, I’ll say, “where do I sign!”
Luis:
It is not the job of Congress to police the Executive branch of government.
That is the foundation of the notion of “separation of powers”.
(later)
“It is not the job of Congress to police the Executive branch of government.
That is the foundation of the notion of “separation of powersâ€Â.”
I’d say its rather the opposite: their powers are separated so that they can effectively police each other, because we don’t trust unified powers to police themselves.
Separation of powers means distinct areas of (non-overlapping) responsibility which, in the case of our three branches of government, are spelled out in the Constitution.
The idea underlying the distribution or separation of powers is that no one branch would hold too much “power”.
The only means the Legislature has for oversight on the Executive is in terms of the legislation it does or doesn’t pass, including budget initiatives, aka “the power of the purse strings”. Or introducing articles of impeachment in the House and conducting a trial on those articles in the Senate.
The Executive can veto or approve the legislation passed to it by the lawmaking body.
The branches of government don’t police each other. Luis called for congressional “oversight” of the President. I was wondering who, in that context, would have oversight of the Congress, most notably recent notables like “cold cash” Jefferson (D-Louisiana) or Duke Cunningham (R-California).
It seems to me that, in recent years and months, many in the federal Legislature have decided that every rock relating to the Executive must have a troll under it. And have, to that end, spent copious energy and countless hours picking up and examining various rocks, hoping to find a troll.
I don’t see where the legislative body has that “power” granted to it in the Constitution.
Whatever else is true, none of the institutions of government can ever be better than the individuals who make them up at any given point in time.
“The branches of government don’t police each other.”
Congress has the power to pass all laws that are “necessary and proper” to the carrying out of the powers of the government. So that means they can pass laws that police whether the executive is properly acting within its Article II power.
“I was wondering who, in that context, would have oversight of the Congress, most notably recent notables like “cold cash†Jefferson (D-Louisiana) or Duke Cunningham (R-California).”
In those cases, the executive branch does: those guys are getting their oversight in the form of criminal justice. Thats an executive and judicial function.
“I don’t see where the legislative body has that “power†granted to it in the Constitution.”
Its in the necessary and proper clause. Also implied in all the other powers congress has to enact legislation. It can’t do so without information. See this CRS report for more.
No, it does not. They cannot pass laws that take away executive power. If the President is acting in accordance to the Executive’s charge under Article II — and signals intel gathering has always been seen in that light by the judiciary — then Congress cannot simply vote to take away that power.
Don’t know. Got a citation?
FISA was never meant to interfere with NSA intel gathering, as a quick perusal of the legislative history of FISA makes clear.
If you read the linked McCarthy article, you’d have your answer. Notes McCarthy:
As everyone knows, Bush did brief a handful of Senators about the program, and no objections were raised until after the “leak,” at which point the Dems leaped on this.
But when it came time to vote, they claim they were bullied by the President into giving him what he wanted (which falls well short, incidentally, of what he should have insisted upon).
What they mean by this, of course, is that they couldn’t afford to vote against the program, which — despite a lot of dishonest framing about “domestic wiretaps” — was nevertheless supported overwhelmingly by the American people.
In short, they were afraid to vote against it, and hoped that by applying political pressure, and having their attendant political interest groups raise legal challenges (one of which, by the ACLU, was recently tossed on grounds of standing, but not before the Judge noted that no laws were being broken), they might effect a compromise.
Which they did — though I suspect this could become an election issue.
I will shun any candidate who is unwilling to stand up for Article II powers:
The NSA is a military agency. And so its use is decided upon by the President.
More to consider:
That legislation, however, was, per Griffin Bell, never meant to constrain signal intel gathering, or the President’s charge to protect the homeland and monitor foreign communications.
Not surprisingly, FISA has undertaken the precise kind of mission creep that Congress itself has taken in trying to argue for an expansion of its powers over national security, while dimishing the Executive’s powers.
Having said all that, though, I return to the question that I have yet to hear some of the critics here answer: what is it, precisely, that you think the NSA program is doing that is illegal?
The necessary and proper clause appears at the end of Section 8, Article I.
“To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
The “foregoing Powers” of Congress are enumerated directly above it. The clause states that Congress can also make laws (not enumerated in Article I) to enable Powers vested in the government or in any of its departments or officers.
It doesn’t grant license to the legislative branch to “police” the executive branch.
You seem to be in support of this Congress’ investigative zeal and vigor when it comes to this administration/President.
I find much of it insubstantial & politically motivated with an eye to disgracing the administration and recapturing the White House in ’08. And that much of the brouhaha surrounding wiretaps, FISA courts, claims about your “liberties” and the Homeland Security Act fall into that category.
Congress screams and yells and (yet) just last week approved the “foreign surveillance” dimension wanted by the White House. Granted, it will be subject to “review” in 6 months. Congress has also re-upped the Homeland Security Act…twice ?
If these measures are as evil as their detractors claim, why is Congress re-authorizing them ?
#92 was addressed to “oagen”
“They cannot pass laws that take away executive power.”
They can pass laws which make sure he is within it, so long as he still has it.
“Don’t know. Got a citation?”
It was a secret ruling by the FISA court. The ACLU is suing to have it released. I’d love to be able to cite it.
“FISA was never meant to interfere with NSA intel gathering, as a quick perusal of the legislative history of FISA makes clear.”
It doesn’t interfere. It just works to make sure that it is not overstepping article II.
“As everyone knows, Bush did brief a handful of Senators about the program, and no objections were raised until after the “leak,†at which point the Dems leaped on this.”
In the end, it really doesn’t matter what a handful of senators, without access to national security counsel, have to say about it.
“The NSA is a military agency.”
As far as the military is concerned, and if we are going to get into constitutional text, the government (or, congress, to get specific) can create armies and navies and the militia. Which one is NSA?
“You seem to be in support of this Congress’ investigative zeal and vigor when it comes to this administration/President.”
I’m in support of Congress investigating on subjects it legislates. Including enabling all powers of the government.
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Respekt! Ein wirlich gelungene Seite.