Dean is his own refutation. This doesn't require further comment.Quote:
Originally Posted by KafirChobee
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Dean is his own refutation. This doesn't require further comment.Quote:
Originally Posted by KafirChobee
Pindar,
You continue to cite things that do not refute the central concern. Simply dismissing it as personal sentiment is farcical, since you have still not explained how FISA is restricting his authority. In fact, the more you cite the bigger the gap appears to be. While you keep quoting "foreign" there is a big gray area here of what is foreign and what is domestic. Someone needs to be able to review that, and the appropriate authority would be a secure judicial setting and the retro-active capability. That would not fetter the president, it would instead prevent him from acting illegally under the guise of executive power, and under the protective cover of the national security apparatus. (If requiring him to act in a legal manner is fettering then we have far greater threats than the foriegn ones.)
To put this even more simply: You need to illustrate that FISA actually restricts presidential power. It provides a secure review process of how he is using his powers, not truly restricting him. It does provide judicial weight to the process leading to eventual prosecution. Efforts to restrict him were already stopped. So he can't really claim that is the case. Ironically, by having things already going his own way in 2002, he's already effectively lost the argument about being restricted since it appears the demarcation was already made.
If it appears that the FISA court has overstepped then the review court or eventually SCOTUS would be the appropriate arbiter for defining the boundary. Since FISA's suggestions seem to be non-binding, claiming undue restriction is going to be a serious challenge. :san_grin:
No, I think we are getting to the heart of the matter here. The president's powers have not been restricted by the FISA court. Instead bypassing the FISA court allows him to conduct warrantless searches that exceed his constitutional authority, without a review. Thanks to his bypassing of the system we have no mechanism to know this without a congressional investigation or independent prosecutor. It seems that he has provided probable cause by bypassing FISA (in light of the 2002 review.)
FISA cannot restrict Presidential authority to conduct foreign intelligence, that is the point. The President is Constitutionally invested and thereby independent of other branches of government in exercising his charge. The NSA program is not illegal. There is no ambiguity about "foreign". Foreign refers to non-U.S. persons and activities that extend beyond U.S. territory. No court has challenged this because it is a rather mundane point under the law. The only ones making noise are those with political agendas and the uninformed. This is not a solitary position I am explaining. Let me give you a couple of opinions from others. I'll give one from a well known Liberal Law scholar and then one from the right. First, University of Chicago Law Professor Cass Sunstein, one of the big wigs in Constitutional Law today. This is from an interview he gave yesterday I believe. A colleague sent this to me:Quote:
Originally Posted by Red Harvest
Questioner: Do you consider the quality of the media coverage here to be good, bad, or in between?
Sunstein: Pretty bad, and I think the reason is we're seeing a kind of libertarian panic a little bit, where what seems at first glance...this might be proved wrong...but where what seems at first glance a pretty modest program is being described as a kind of universal wiretapping, and also being described as depending on a wild claim of presidential authority, which the president, to his credit, has not made any such wild claim. The claims are actually fairly modest, and not unconventional.
Questioner: "So if we assume, and I do, that FISA is Constitutional, if it puts into place an arguably exclusive means of obtaining warrants for surveillance of al Qaeda and their agents in the United States, does the president's avoidance of that necessarily make him a law breaker? Or does it make the FISA ineffective insofar as it would attempt to restrict the president's power?"
Sunstein: "Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11."
Second, Chapman University Law School Professor John Eastman.
Questioner: "And does (the President) have that authority, even if he does not have a warrant to conduct that surveillance?"
Eastman: "Yes, he does, and look. This authority comes directly from Article 2 of the Constitution. Every president going back to George Washington has recognized this. The president that signed the foreign intelligence surveillance act in 1978 specifically, said that of course, this can't be considered a constraint on the powers that the president has directly under Article 2. That president was Jimmy Carter... This is a pretty well-established incident of war."
I have provided case law citations, explained the division of Constitutional powers and quoted well regarded legal scholars from different sides of the political spectrum. There is no case of illegality here.
cut & paste is fine but please provide links so we can read this stuff in context.Quote:
Originally Posted by Pindar
It's not encouraging to see Sunstein's thoughts in there, although it does show it's widely accepted.:san_lipsrsealed: Just stick w/ the other guy:san_grin: , honestly no idea who he is, almost sounds like Easterbrook though.:san_smiley:
There is no ambiguity about "foreign". Foreign refers to non-U.S. persons and activities that extend beyond U.S. territory.
But surely here the issue is applying it to US citizens and activities that do not extend beyond US territories .
Isn't the key phrase here "foreign intelligence"? As concerns the presidents ability to gather information that would aid the nation in a time of war. By the administrations own admittance they have said, "Well, most of the Americans wiretapped had links with Muslims" - note, not "terrorists", but Muslims. Who were the others, and why did the Executive branch feel it necessary to listen in on them?
I suspect when everything comes to light we will discover that they were listening in on Kerry's HQ and other Democrats as well during the last elections. Because of the "terrorist" factors in those organizations.
That is the problem with unsupervised wiretapping - the abuse factor. All the excuses in the world cannot make an illegal act, legal.
As Harvest has pointed out, FISA was there to rubber stamp anything legitimate that they asked for.
One excuse (my fave) is the what if - what if they found a terrorist laptop with 6,000 names on it. Would they require 6,000 requests? Welllll, what if it was just their xmas card list? :san_grin:
What I do find amusing is that the same legaleeze used by Nixon are once again being employed by yet another Republican President. One can only hope that when the records of these illegal wiretaps are disclosed (not publicly. but to a closed bi-partison board) that Kerry's name doesnot appear on them.
Also, look at the one glowing case that has been devulged - the nut job that was going to destroy the Brooklyn bridge with a blow torch. Please.......this guy sent emails and everyother stupid thing he could think of to get attention. And, that is their big win fall? Why not - since Paddilla's case has gone south (you know the 14th hijacker ... or what ever number he was). Face it, the Bushys are not exactly the most trust worthy people we have had in government. They really have to get over their "TRUST ME" mode and back to the reality that we live in a some times democracy. Sometimes.
That seems to be precisely the issue. James Bamford has written extensively on the NSA and much information can be found in his 1982 book The Puzzle Palace and subsequent publications. He is still active as an author and I heard him debate this issue on the BBC World Service last Wednesday. According to Bamford the Agency's record of abuse goes way back. A lot of information on the agency's internal spying surfaced in the Church hearings in the 1970's and Congress subsequently introduced legislation in an attempt to stop it. According to Loch Johnson, an intelligence historian at Yale who served on the Church Committee staff: 'To pick up the paper and see that all of the carefully crafted language, across party lines, to put together FISA, has been dismissed by secret executive order is very disheartening.'Quote:
Originally Posted by Tribesman
Members may find this article helpful.
No, that is *a* point, there is another that I am making that is not at all addressed. The point I am making is that we have no mechanism for determining if the activitiy is illegal, as the president has bypassed it. FISA is not restricting presidential power, but it does provide a mechanism to review whether or not the activity is within the existing powers and provide guidance and legitimacy. Since it lacks the powers to stop him, the restriction argument is shot down in flames. (FISA is a rather elegant solution when viewed this way.) Bypassing it altogether leads one to a very unflattering conclusion: that Bush is allowing/encouraging the NSA to exceed the few limits he should be respecting. Looking at Dubya's legacy of torture etc. it is almost a certainty that he has pushed this past the limits of other presidents. It should be investigated fully, because this president's track record on such matters is similar to Nixon's at a comparable point in time.Quote:
Originally Posted by Pindar
It may be illegal if it is not limited as it should be. There is considerable ambiguity about exactly what constittutes "foreign" and where the links end. There is considerable reason now to believe it is not limited to those reasonably suspected of being foreign agents. Bypassing the FISA, attempted changes to the wording, and many other efforts both judicial and legislative to stretch the margins, together provide abundant probable cause to investigate the activities. Afterall, there is no longer ANY mechanism to determine if the president is abiding by his responsibilities in the constitution under this matter. (The Padilla case certainly indicates he is not.)Quote:
The NSA program is not illegal. There is no ambiguity about "foreign". Foreign refers to non-U.S. persons and activities that extend beyond U.S. territory. No court has challenged this because it is a rather mundane point under the law.
To give a very clear example of how I could see the NSA/president abusing this: expanding out wider and wider. If some US citizen is suggested as a potential foreign agent on the flimsiest evidence (name showing up in a document/purchase etc. in confiscated material) what would stop the NSA from following everyone of that U.S. citizens contacts? Then the next level out and so on? They might claim all who have any contact could be foreign agents, etc. That seems to be part of what FISA is supposed to do, limit the "urge" to expand beyond what is reasonable.
And that ignores even more generalized dragnets that might be used.
I still see a gaping hole in the whole construct. Nobody is able to see if the president has exceeded his powers--something that is certainly possible if not probable. Labeling a domestic enemy a "foreign agent" is sufficient to say he is using illegal tactics. He has bypassed the only mechanism for detecting that.Quote:
I have provided case law citations, explained the division of Constitutional powers and quoted well regarded legal scholars from different sides of the political spectrum. There is no case of illegality here.
To claim all this is cut and dried appears to be a convenient oversimplification. This administration is very innovative in subverting existing law and precedents, and claiming authority which it does not necessarily have.
What is to prevent SCOTUS from ruling that a non-binding FISA review is not a restriction of the president's authority? What is to prevent it from ruling that if the President in any specific circumstance is using this system for domestic spying with no reasonable justification?
You seem to be implying that FISA is unconstitutional, without saying it directly.
Exactly. Thats the whole point. Case closed. The Times story is nothing but more wishful thinking and misrepresentation.Quote:
Nobody is able to see if the president has exceeded his powers--
Yes, this lets him commit illegal acts out of sight (which apparently makes certain libertarians happy? :san_huh: ) There is not really any other reason he would need to do this. The claims he has made so far about FISA in defense are bald faced lies--since the turnaround is fast and it can be done retroactively, and can't bind him.Quote:
Originally Posted by Gawain of Orkeny
No, case wide open. Gotta wonder why a libertarian would want this to be closed?Quote:
Case closed.
No, it has revealed yet another way Dubya is abusing his power and how our constitutional protections are being subverted by an imperial presidency.Quote:
The Times story is nothing but more wishful thinking and misrepresentation.
You keep claiming their illegal and yet have admitted no one knows any suchthing. You just want them to be illegal. Pinda has shown you that the president has certain inherent powers granted him bu the constitution. It seems that you dont like Bush having these powers. Well theres only one way to make them illegal as you say they are. And that would be to make a constitutional amendment to change it. Until then please stop wth your wishful thinking and statements of facts not in evidence and total missreprestation of other facts.Quote:
Yes, this lets him commit illegal acts out of sight (which apparently makes certain libertarians happy?
Because its in the constitution. There are few things I think the government should do but protecting us from foriegn threats is one of those things. Again if you dont like it change it. There really is no legal argument here.Quote:
No, case wide open. Gotta wonder why a libertarian would want this to be closed?
More of the same rehtoric.Quote:
No, it has revealed yet another way Dubya is abusing his power and how our constitutional protections are being subverted by an imperial presidency.
No thanks, I won't be taking orders from someone who often neglects to check his own facts before posting (Dover thread and others), and who can't seem to form an opinion independent of Rush Limbaugh--based on the links.Quote:
Originally Posted by Gawain of Orkeny
I have not misrepresented this. My representation of things is closer to the mark than Dubya's. Anything I might misunderstand is because I lack the knowledge on specifics, rather than lying or attempting to distort. Dubya has lied about this many different times and ways already, and I have been pointing out how. No doubt some of the news reporting is flawed, I always anticipate that.
Bush does not have unlimited powers, yet that is what he is claiming (and then denying later, depending on the audience and question, LOL.) The FISA defense being used by the administration is a sham/lie. The precedents Pindar and others cite don't get to the issue of whether or not the president could be overstepping his constitutional authority or whether anyone can even be authorized to see what he is doing. (It needs SCOTUS clarification.) Instead the opinions cited focus on whether he can be restricted in dealing with foreign threats. In my view there is a lot more to it than that.
When someone lies to me enough times, I will doubt them first, they have to convince me. I have yet to see any convincing argument that suggests Dubya's bypassing of FISA was necessary for national security. There has been no example of what info an extra-FISA search has allowed to be turned up that has made it useful/necessary and could not otherwise be obtained. I've seen lies paraded out as justification. I've seen clear signs that he was trying to broaden unwarranted searches into domestic targets. And we have the Padilla case, where Bush is seeking to avoid review of his "novel" tactics. Taken as a whole I have no reason to believe the president has not crossed the line on this one.
It is for the legal system to determine whether or not the President has overstepped, that does not mean I can't have a non-professional opinion of what is occurring. Hopefully hearings will be able to shed some light on what is actually happening. It might alleviate my concerns, but it all depends on what is learned.
You mean their going to take him to court or impeach him? What legal system? Pindar has already shown you that there is no legal argument that you can win. Your just being stubborn and hoping for the worst.Quote:
It is for the legal system to determine whether or not the President has overstepped,
An oinion yes, But dont keep stating what Bush did was illegal as if it were a matter of fact just like the Times did. You think its illegal or hope it is.Quote:
that does not mean I can't have a non-professional opinion of what is occurring.
Srr I told you , you were hoping :san_laugh:Quote:
Hopefully hearings will be able to shed some light on what is actually happening
In other words if they find a way to bash Bush you will be happy and if not you will still claim its illegal because its that evil Bush whos now doing it. I doubt theres anything he could do to please you other than to either resign or die.Quote:
It might alleviate my concerns, but it all depends on what is learned.
You aren't thinking ahead...neither of those is particularly palatable. Both would put Cheney in charge and he is a worse scoundrel than Dubya.Quote:
Originally Posted by Gawain of Orkeny
No, Dubya could please me by being honest :san_shocked: , getting a clue and doing what is best for our country rather than trying to tear it in two as if it were some Dubya Total War Mod. He could start completing his major tasks, learn basic mathematics, get some competent and ethical advisors, and learn how *not* to embarass our nation in every possible way.
Basically, if he quit being a complete dick I would be happy. :san_grin: That's what I want for Christmas.
Basically, if he quit being a complete dick I would be happy. That's what I want for Christmas.
Sorry Harvest you shall be disapointed this festive season , Santa does not perform miracles .
The referred to interviews are in context as the question and answer are provided. All noted case law is referred to by name. Such decisions are usually long and can be technical: pasting is the simplest method of demonstrating the relevant portion. If you are interested in any particular ruling the decision should be easy to find on the net.Quote:
Originally Posted by solypsist
Why is it not encouraging? I'm sure if you searched you could find a legal defender of the fever swamp, but the relevant point is Sunstein's view is the standard legal understanding. I referenced him because he is so highly regarded in Constitutional Law and is a very left leaning member of the Bar. This really is rather mundane fare that only excites non-legal minds or political agendas.Quote:
Originally Posted by Kanamori
Eastman is a good example of the other side. He also is not without recognition. I can't remember the number, but I think he has argued before SCOTUS more than twenty times.Quote:
Just stick w/ the other guy:san_grin: , honestly no idea who he is, almost sounds like Easterbrook though.:san_smiley:
Yes.Quote:
Originally Posted by KafirChobee
No, the issue applies to NSA warrantless surveillance of communications extending outside U.S. territory. If I recall the origin points have all been outside the U.S.Quote:
the good guys: There is no ambiguity about "foreign". Foreign refers to non-U.S. persons and activities that extend beyond U.S. territory.
Quote:
Originally Posted by Tribesman
If I recall the origin points have all been outside the U.S.
If this morning latest revelations are correct then they most certainly have not all been outside of the US or been in any way foriegn , the extent of this possible abuse of power is far wider reaching and over a longer time scale than originaly reported .
This partition is significant. The point, renamed "a" point is the legal question. If you recognize FISA cannot restrict the inherent Presidential authority to gather foreign intelligence and protect the nation, which is the only real option, then there is no illegality argument to be made. I therefore consider the legal question settled.* The second point is more an apprehension based on a misunderstanding of the roles of government and therefore a step removed from the issue: but to give a response, any exercising of a branch power is Constitutionally derived. Its legality is therefore based on the Constitution. The Constitution is the proof text. To apply this to our general discussion: this is why Nixon's surveillance was wrong. He was involved in solely domestic surveillance independant of protecting the nation, which is outside of the Presidential purview. The NSA's actions, on the other hand, is foreign intelligence focused which is central to the President's charge.Quote:
the good guys: FISA cannot restrict Presidential authority to conduct foreign intelligence, that is the point.
Quote:
Originally Posted by Red Harvest
*If I am misreading you then you will need to demonstrate judicial rulings from the case law that will substantiate a illegality charge.
Nothing. Of course, in the 72 Keith Case SCOTUS expressly refused to attempt any limit of Presidential prerogatives regarding foreign intelligence gathering and there are good reasons why not that I have previously explained. Now, if SOCTUS did as you suggest this would be tantamount to Congress voting to eliminate the Presidential veto, the point being: doing a thing is not the same as having the authority to do a thing. Such a bald faced challenge to a basic component of one branch's delineated power would lead to a Constitutional crises.Quote:
What is to prevent SCOTUS from ruling that a non-binding FISA review is not a restriction of the president's authority? What is to prevent it from ruling that if the President in any specific circumstance is using this system for domestic spying with no reasonable justification?
I basically agree with Sunstein's analysis previously given: "Yeah. I guess I'd say there are a couple of possibilities. One is that we should interpret FISA conformably with the president's Constitutional authority. So if FISA is ambiguous, or its applicability is in question, the prudent thing to do, as the first President Bush liked to say, is to interpret it so that FISA doesn't compromise the president's Constitutional power. And that's very reasonable, given the fact that there's an authorization to wage war, and you cannot wage war without engaging in surveillance. If FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional. So I don't think any president would relinquish the argument that the Congress lacks the authority to prevent him from acting in a way that protects national security, by engaging in foreign surveillance under the specific circumstances of post-9/11."Quote:
You seem to be implying that FISA is unconstitutional, without saying it directly.
I don't know what you are referring to. If this is the radiation story leaked by U.S. News: that is distinct from the NSA warrantless wire taping we are discussing.Quote:
Originally Posted by Tribesman
So let me get this straight:
The president can order surveillance without a warrant if there is no reason to believe the information they're monitoring comes from or goes to a USA citizen.
How is the FISA unconstitutional then? The ultimate question wether or not a surveillance has to be considered domestic, shouldn't that be with a court? Wether or not something is domestic is a *factual* issue, one that nevertheless has to be defined properly. Ultimately, who is to decide that? As it is the job of the judicial branch to keep the executive branch in check, I think the answer is obvious.
If this is the radiation story leaked by U.S. News: that is distinct from the NSA warrantless wire taping we are discussing
Nope , it refers to a fishing expedition with a very wide ranging format that basically covers everyone everywhere in the hope of getting something that may in the end turn out to be relevant , regardless of if the origin is within US territory , or the people involved are US citizens or if it may be a foriegn linked event , so in a short summary all safeguards are thrown out thre window just in case there is the slightest chance that possibly, maybe ,by going on a really long shot , without regards to the laws of the country or the constitution they may , just may , perhaps pick up some tiny little bit of information that could just possibly be of some questionable use to them .
That is the issue Pindar .
Hello,Quote:
Originally Posted by Germaanse Strijder
What you describe above is not the issue. The NSA warrantless surveillance involves foreign intelligence gathering. This could be messages coming from a foreign locale into the U.S. or messages going out of the U.S.
That was a long sentence. Unfortunately it is not related to our topic: lovely prose by the way. :san_grin:Quote:
the good guys: If this is the radiation story leaked by U.S. News: that is distinct from the NSA warrantless wire taping we are discussing
Quote:
Originally Posted by Tribesman
That was a long sentence. Unfortunately it is not related to our topic: lovely prose by the way.
Oh but Pindar it does relate , since in case you may wish to ignore it to satisfy your beliefs that the taps have been placed on foriegn citizens and foriegn traffic , and so could be covered by the foriegn stipulations of the legal arguement .
I refer to domestic traffic and American citizens .....so please tell me in your legal wisdom , where is that covered under those precedents ?
Oh bugger , it isn't is it , if it is true .
Wonderful prose eh ?
Quote:
the good guys: That was a long sentence. Unfortunately it is not related to our topic: lovely prose by the way.
Quote:
Originally Posted by Tribesman
Whether an American is involved is a non-issue. As far as strictly domestic traffic is concerned I haven't read or heard of this applying to the program. I do know of the radiation program, but that is separate from this discussion. You would need to show me what you are thinking of. Regardless, the President's powers to protect the nation is specific to his charge of office. This is clearly demonstrated as far back as in Fleming v. Page (1850) where the Supreme Court noted: the President has the power "to employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy." I have previously presented the legal argument and history. There is no legal case against the President. There is a case that could be made against those who divulged information about U.S. intelligence gathering efforts however: 18 U.S.C. Section 798 is the relevant Federal law. Here is part of it:
"-a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
-(3) concerning the communication intelligence activities of the United States or any foreign government...
-Shall be fined under this title or imprisoned not more than ten years, or both."
Communications intelligence and unauthorized person is defined by the law thusly:
"The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;
The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States."
Now, I have presented the case law and legal history pertinent to charges of illegality. If you wish to spare on this topic explain why the Court rulings do not apply or put forward separate rulings that overturn my analysis: prose alone does not remedy a poor argument.
We only heard about it because someone essentially broke the law and risked their career to speak out about it.Quote:
Spying Said to Be Broader Than Reported Sat Dec 24, 5:31 PM ET
NEW YORK - The National Security Agency has conducted much broader surveillance of e-mails and phone calls — without court orders — than the Bush administration has acknowledged, The New York Times reported on its Web site.
The NSA, with help from American telecommunications companies, obtained access to streams of domestic and international communications, said the Times in the report late Friday, citing unidentified current and former government officials.
The story did not name the companies.
Since the Times disclosed the domestic spying program last week, President Bush has stressed that his executive order allowing the eavesdropping was limited to people with known links to al-Qaida.
But the Times said that NSA technicians have combed through large volumes of phone and Internet traffic in search of patterns that might lead to terrorists.
The volume of information harvested from telecommunications data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the paper said, quoting an unnamed official.
The story quoted a former technology manager at a major telecommunications firm as saying that companies have been storing information on calling patterns since the Sept. 11 attacks, and giving it to the federal government. Neither the manager nor the company he worked for was identified.
http://news.yahoo.com/s/ap/20051224/...omestic_spying
To allege that this is an 'open and shut' case at this point is premature, at best.
Note the article also suggests this was not just 'foreign' but also 'domestic' communications.