Bush allowed NSA to spy within USA without warrants

[Goofball]

I'm sure this is to be used as rationale that the entire United States, and everything it stands upon and does, is evil, and furthermore that Israel is in the same category.

Wahoo.

Gosh, I've been back on this forum for 15 minutes and I'm already sick to my stomach.

And gosh, you reverted right away to the oh-so-popular Backroom conservative tactic of equating attacks on the Bush administration with attacks on America then throwing a pity-party.

I think I'll leave for another 9 months.

Don't let the door hit you in the arse on the way out.

And tell Don Corleone to come back if you see him. I miss the old fart...

[Hurin_Rules]

Independent legal analysts seem to view the case as a bit less 'open and shut' than we have been led to beleive:

Analysts: Bush spying rationale legally shaky
Memo questions use of presidential power in wiretapping without approval

Updated: 6:21 p.m. ET Jan. 6, 2006
WASHINGTON - A memorandum from two congressional legal analysts concludes that the administration’s justification for the monitoring of certain domestic communications may not be as solid as President Bush and his top aides have argued.

The Congressional Research Service, which advises lawmakers on a wide range of matters, said a final determination about the issue is impossible without a deeper understanding of the program and Bush’s authorization, “which are for the most part classified.”

Yet two attorneys in the organization’s legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees “does not seem to be as well-grounded as the tenor of that letter suggests.”


The National Security Agency’s activity “may present an exercise of presidential power at its lowest ebb,” Bazan and Elsea write in the 44-page memo.

Bush and his top advisers have defended the program, which allowed the highly secretive agency to eavesdrop without court approval on international calls and e-mails of people who were inside the United States and suspected of communicating with al-Qaida or its affiliates.

The Bush administration says it was legal under Article 2 of the Constitution, which grants presidential powers, and Congress’ September 2001 authorization to use military force to conduct the war on terror.

But the memo concludes: “It appears unlikely that a court would hold that Congress has ... authorized the NSA electronic surveillance operations here under discussion.”

Responding to the report, Justice Department spokesman Brian Roehrkasse said the activities “were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties.”

Balance of powers
The domestic monitoring has raised questions about the appropriate powers of Congress and the executive branch. Congress’ legal advisers are saying lawmakers should have a role in overseeing such activities.

Ken Bass, a Carter administration Justice Department official and an expert on the Foreign Intelligence Surveillance Act, said the issue of the president’s inherent power has remained unresolved for decades.

The White House’s analysis of presidential power is consistent with previous administrations, Bass said. But he said he didn’t know of an administration that had asserted authority for four years, as in the monitoring program, to delegate decisions normally requiring court orders to midlevel intelligence officials.

On Monday, Bush reasserted his authority to order the surveillance.

“The enemy is calling somebody, and we want to know who they’re calling and why,” Bush said in San Antonio, Texas. “And that seems to make sense to me, as the commander in chief, if my job is to protect the American people.”

Sen. Frank Lautenberg, D-N.J., who was among those who requested the research service’s memo, said it contradicts Bush’s claim that the program was legal.

“It looks like the president’s wiretapping was not only illegal, but likely targeted innocent Americans who did nothing more than place a phone call,” he said.

© 2005 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

http://www.msnbc.msn.com/id/10741787/

[Hurin_Rules]

And another article on the same report, but with a bit more information:

Report Questions Legal Basis for Bush's Spying Program

By ERIC LICHTBLAU
and SCOTT SHANE
Published: January 6, 2006
WASHINGTON, Jan. 6 - President Bush's rationale for authorizing eavesdropping on American citizens without warrants rests on questionable legal ground and "may represent an exercise of presidential power at its lowest ebb," according to a formal Congressional analysis released today.

The analysis, conducted by the Congressional Research Service, an independent research arm of Congress, is the first formal assessment of a question that has gripped Washington for the last three weeks: Did President Bush act within the law when he ordered the National Security Agency to eavesdrop on Americans?

While the Congressional report reached no bottom-line conclusions on whether the program is legal or not, it concluded that the legal rationale appears somewhat dubious. The legal rationale "does not seem to be as well-grounded" as the Bush administration's lawyers have suggested, and Congress did not appear to have intended to authorize warrantless wiretaps when it gave President Bush the authority to wage war against Al Qaeda in the days after the Sept. 11 attacks, the report concluded.

Bush administration lawyers quickly took issue with the report's conclusions, arguing that President Bush acted within his constitutional and statutory powers in approving the N.S.A. program.

"The president has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks," said Brian Roehrkasse, a spokesman for the Justice Department.

"As the attorney general has stated numerous times, the National Security Agency activities described by the president were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," Mr. Roehrkasse said.

But many Democrats and some Republicans said they found the doubts raised by Congressional report persuasive, pointing to it as another indication that President Bush may have overextended his authority in fighting terrorism.

Thomas H. Kean, the former chairman of the Sept. 11 commission, said he too doubts the legality of the program. Weighing in for the first time on the controversy, he said in an interview that the commission was never told of the operation and that he has strong doubts about whether it is authorized under the law.

Federal law under the Foreign Intelligence Surveillance Act, created in 1978, "gives very broad powers to the president and, except in very rare circumstances, in my view ought to be used," said Mr. Kean, a Republican and former governor of New Jersey. "We live by a system of checks and balances, and I think we ought to continue to live by a system of checks and balances."

Opinions on the N.S.A. domestic spying issue have broken down largely, though not exclusively, along partisan lines, causing public rifts between the top Republicans and Democrats on both the House and Senate Intelligence Committees.

But the analyses of the Congressional Research Service, part of the Library of Congress, are generally seen as objective and without partisan taint, said Eleanor Hill, who served as a Congressional staffer for 17 years and was staff director of the joint Congressional inquiry into the Sept. 11, 2001, terrorist attacks.

"My experience is that they're well respected in the Senate and House," said Ms. Hill, now a Washington lawyer in private practice. "I don't remember anybody attacking them for being partisan. They're more academic in approach."

http://www.nytimes.com/2006/01/06/po...rtner=homepage

[Pindar]

Hurin,

The analysis, conducted by the Congressional Research Service... Yet two attorneys in the organization’s legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees “does not seem to be as well-grounded as the tenor of that letter suggests.”


The National Security Agency’s activity “may present an exercise of presidential power at its lowest ebb,” Bazan and Elsea write in the 44-page memo.

Would you like me to explain some of the language used? This "may present an exercise of presidential power at its lowest ebb" is a direct reference to Justice Jackson's concurring opinion from: Youngstown Sheet and Tube Co. v. Sawyer (1952) Here's the quote the phrase comes from:

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.."

This plays in nicely with what I have been arguing. Bazan and Elsea, while obviously having an opinion bowing to Congressional power (hardly surprising from the Congressional Research Service) they are wont to actually charge illegality. Why? Because they are aware of the traditional understanding of inherent Presidential power. Their stance is a problem because it assumes Congress is at odds with Presidential prerogative. The AUMF pushes the NSA issue toward a combined justification of both Legislative and Executive Constitutional power. Here is another quote from the same Jackson opinion to help explain the notion:

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty."

Of course there isn't just the AUMF that speaks toward this understanding there is also testimony like the following:

"As the Ranking Democrat on the House Intelligence Committee, I have been briefed since 2003 on a highly classified NSA foreign collection program that targeted Al Qaeda. I believe the program is essential to US national security and that its disclosure has damaged critical intelligence capabilities."
-Rep. Jane Harman, ranking Democrat on the House Intelligence Committee, Dec. 21

The above thus, also demonstrates the confluence of government action that undercuts the Bazan/Elsea stance.

To directly challenge the President's power to gathering foreign intelligence is going to be very difficult to argue legally. Not only is there the Constitutional power the President can appeal to which has been recognized by previous Presidencies and the courts going way back (this is what I have been focusing on as I think it is the clearest, most legally demonstrable position) but there is the added AUMF that makes any suggestion of governmental branch tension problematic. As I said before political bluster is one thing, but the legal issue is not difficult.

[Tribesman]

The issue has been whether the President could authorize warrantless surveillance.
No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .

[Xiahou]

The issue has been whether the President could authorize warrantless surveillance.
No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .

Based on what? Supposition?

[Tribesman]

Based on what? Supposition?
No Xiahou , based on the fact that the administration has admitted that it has done so mistakenly or by technical errors .
Unless of course the administration is only basing those admitions on its own supposition .
That is what the judicial commitee is going to investigate , in case you missed it .

[Nerouin]

And gosh, you reverted right away to the oh-so-popular Backroom conservative tactic of equating attacks on the Bush administration with attacks on America then throwing a pity-party.



Don't let the door hit you in the arse on the way out.

And tell Don Corleone to come back if you see him. I miss the old fart...

And, gosh, I sure do love good old G. W. Bush, don't I? Well actually, the answer to that is ABSOLUTELY NOT. I believe he's the worst president in my lifetime, runs an incompetent administration that has spent so irresponsibly that the government cannot even help its own citizens with disaster relief, and that he and his Republicans represent a bonafide threat to the principles that the country stands on.

As for my opinion on the wiretap, it is best summed up in a quote by Benjamin Franklin: "Those who will sacrifice liberty to obtain a temporary security deserve neither liberty nor security."

I simply object to this being used as a platform for attack on the USA. Being Jewish, I am very sensitive to such things-- whenever a Jew does something bad, it's "the Jews are doing this," or "the Jews want that." This would seem to extend to every Jew on earth-- evidently in the mind of some, the 3 month old Jewish baby breast feeding from his mother is or will somehow be involved in the apparent Jewish plot to take over the world. Israel is, of course, the target of the same.

As such, I'm very against the same being applied to any group or country-- any country is full of very diverse people, and none can be classified. Just because a world leader does something bad does not mean that his country is 100% behind him or as a citizenry 100% responsible.

I suppose this was not an attack on the USA, but if it was, then this was my response.

[Lemur]

A slightly wider perspective on the wiretapping problem:

The president has defined the theater of war as including the territory of the United States and including citizens of the United States; he has also defined the war as without end. So his war powers, although moderate in effect compared to what, say, Lincoln and FDR got away with, are exponentially more far-reaching. Because this war is forever, as Jon Rauch explains in his latest National Journal column (not online yet). And countless future presidents will be given the right to ignore, flout or finesse domestic law if they so wish. I wonder how many Republicans will object when president Hillary is wiretapping their private conversations. They'd better speak up now, hadn't they?

[Pindar]

The issue has been whether the President could authorize warrantless surveillance.

No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .

Alas, no read the Times article again.

No Xiahou , based on the fact that the administration has admitted that it has done so mistakenly or by technical errors .
Unless of course the administration is only basing those admitions on its own supposition .

Actually it was an NSA admission and unless you wish to argue this was systemic, intentional and under direction of the President it is not relevant to our discussion.

[Pindar]

The president has defined the theater of war as including the territory of the United States and including citizens of the United States; he has also defined the war as without end. So his war powers, although moderate in effect compared to what, say, Lincoln and FDR got away with, are exponentially more far-reaching. Because this war is forever, as Jon Rauch explains in his latest National Journal column (not online yet). And countless future presidents will be given the right to ignore, flout or finesse domestic law if they so wish. I wonder how many Republicans will object when president Hillary is wiretapping their private conversations. They'd better speak up now, hadn't they?

A new player to the table, Hello

Actually a theater of war is wherever there is combat. Given most take 9/11 as the formal divide between what was before and an American response, U.S. Territory is implicitly a theater of war. (one could also argue this applies wherever the show "American Idol" or one of its cousins is on the air or scheduled.)

As far as the end of war: that occurs when there is victory. Whether that takes 5 years like WWII, 8 years like the Revolutionary War, or 27 years like the Peloponnesian War is not relevant.

[Tribesman]

Alas, no read the Times article again.

Still refusing to address the issue Pindar ?

Actually it was an NSA admission and unless you wish to argue this was systemic, intentional and under direction of the President it is not relevant to our discussion.
It is the job of the judicil inquiry to see if it was systematic , intentional or under the direction of the President .
Feel free to bury your head in the sand until the commitee has made its findings , until then all your legal arguements are irrelevant Pindar .

[Redleg]

Alas, no read the Times article again.

Still refusing to address the issue Pindar ?

Actually it was an NSA admission and unless you wish to argue this was systemic, intentional and under direction of the President it is not relevant to our discussion.
It is the job of the judicil inquiry to see if it was systematic , intentional or under the direction of the President .
Feel free to bury your head in the sand until the commitee has made its findings , until then all your legal arguements are irrelevant Pindar .

A bystanders observation for just a second.

The legal arguements are relevant in that the actual facts of the matter are not available, legal arguements provide an understanding of what laws might or might not have been violated.

Pinder's arguement is based upon legal precedent, which is important to understanding the matter.

Your arguement seems to be based upon the words If, and possible violations of the laws. While it makes for good rhetoric, it lacks substance when speaking of criminality of the act. Since there is no proof of wrong doing - just admissions of negilence by an agency involved. Evidence of errors having occured, and statements of negilence by an agency involved does not prove intent nor does it prove a criminal act has been done. What it does show is that the law is not as well regulated nor does it seem that the government is using the law as it was orginally intended. I could not have come to that conclusion without having seen Pindar's legal arguement on the matter.

The news story does not have the facts of the matter, and until the investigation is completed and release the discussion of what the law actually states and how it has been applied in the past is just as revelant to the discussion as your statements and suppositions in the matter.

What the discussion shows is that if the current law is badly written as it seems on the surface then it needs to be reviewed by congress and repealed or changed for the better.

[Hurin_Rules]

As far as the end of war: that occurs when there is victory. Whether that takes 5 years like WWII, 8 years like the Revolutionary War, or 27 years like the Peloponnesian War is not relevant.

Again, you're flatly denying the obvious and refusing to consider the wider issues here. The 'War on Terror' is nothing like WWII. When will there be no terrorism? No one can forsee a point in the future when it will end. Essentially, you're allowing for the permanent declaration of war and the expansion of war powers for the president. Somehow, this is all just mundane and routine to you?

You can parse and splice and utilize your superior training in law to browbeat all the people you want, but even the simlest layman can see several facts. Congressional investigations of this issue will soon begin. Senators and lawyers, many of them Republican, have serious concerns that the law was breached, and most feel that the grey areas in the law and in respect to presidential powers need to be cleared up. This includes a wide range of people, from Republican senator Specter to the lawyers who resigned in protest to the non-partisan congressional committee that called into question the president's legal defense of the program. To not even be concerned about this, and pretend, before all the facts have come out, that it is an 'open and shut' case, is a sad statement on the state of respect for civil liberties in America.

So explain all you want. To tell you the truth, although I value your opinions, I don't assume that you are trying to be objective here, even though you keep claiming it is an 'open and shut' case. You seem to lock yourself into prosecutor mode when discussing these issues, defending the administration without providing the other side of the argument, and always carefully avoiding facts and arguments that would undermine your own. While I'm sure that serves you well in court, it does not help other members to develop balanced opinions, or any of us to discover the truth.

[Redleg]

Again, you're flatly denying the obvious and refusing to consider the wider issues here. The 'War on Terror' is nothing like WWII. When will there be no terrorism? No one can forsee a point in the future when it will end. Essentially, you're allowing for the permanent declaration of war and the expansion of war powers for the president. Somehow, this is all just mundane and routine to you?

Then the issue is with Congress not the President. The War Powers Act of 1973 and the Authorization of the use of Force granted to the president by Congress to pursue aggressive action against any terrorist organization.

http://www.luminet.net/~tgort/wpa.htm

They might of meet it to limit the ability of the President, but what Congress has done is use this document to circumvent their obligation and responsiblity under the Constitution.

http://jurist.law.pitt.edu/terrorism/sjres23.htm

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

(a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Criticising another because they don't take your view on things does not bode well, some of what you wrote does not fullfil the obligation to argue the subject, instead is argueing against the individual.

[Hurin_Rules]

Then the issue is with Congress not the President. The War Powers Act of 1973 and the Authorization of the use of Force granted to the president by Congress to pursue aggressive action against any terrorist organization.

Are you then arguing, Redleg, that the authorization of the use of force also includes the authorization of warrantless wiretaps on US citizens within the USA? Because this is the very argument that the non-partisan congressional research center just called into question as resting on shaky legal grounds:

http://www.msnbc.msn.com/id/10741787/

Criticising another because they don't take your view on things does not bode well, some of what you wrote does not fullfil the obligation to argue the subject, instead is argueing against the individual.

What I said was perhaps a bit harsh, but not out of bounds, and I stand by it. I'm not criticizing him for having an opinion different than mine. I EXPECT to disagree with Pindar on almost everything; that's why I enjoy discussing things with him so much. But by the same token, Pindar is an expert in this field. While this means we all get to benefit from his expertise, it also means that he and has an advantage over all other posters in this regard. He can present things as fact that are controversial, even radical, within the field, and most of us won't notice until long afterwards, or after extensive research. This leads to readers coming away from a discussion with views that are not very informed or objective because of their lack of legal training. This is disappointing.

What I'm saying in a nutshell is this: if you have a particular field of expertise, don't use it against other posters, use it to enlighten other posters. Give your position, by all means. But do have the good grace and courtesy to note significant contrary opinions, and if issues are in dispute, then please note that, rather than presenting only one side as incontrovertible fact. It will help us all make much more informed opinions, rather than simply relishing in flaming one's political opponents.

[Redleg]

Are you then arguing, Redleg, that the authorization of the use of force also includes the authorization of warrantless wiretaps on US citizens within the USA? Because this is the very argument that the non-partisan congressional research center just called into question as resting on shaky legal grounds:

http://www.msnbc.msn.com/id/10741787/

Read what the article claims and what I just stated. Its pretty clear to me what I stated.

The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.

The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.

Like I stated both the War Powers Resolution and the Authorization for the use of force are both the works of Congress. The wording is shaking on both, and the ability for the checks and balances of the government becomes questionable. Both acts are open for interpation of the President in office, one can argue intent for all its worth. The Constitution is constantly argued over what was the purpose verus what the intent is. Such losely worded resolution granting the President the powers of Congress by Congress should have never been passed by the august body in the first place.

What I said was perhaps a bit harsh, but not out of bounds, and I stand by it. I'm not criticizing him for having an opinion different than mine. I EXPECT to disagree with Pindar on almost everything; that's why I enjoy discussing things with him so much. But by the same token, Pindar is an expert in this field. While this means we all get to benefit from his expertise, it also means that he and has an advantage over all other posters in this regard. He can present things as fact that are controversial, even radical, within the field, and most of us won't notice until long afterwards, or after extensive research. This leads to readers coming away from a discussion with views that are not very informed or objective because of their lack of legal training. This is disappointing.

I find it refreshing - it forces me to think and research what he states. If someone relies solely on Pinder or anyother for that matter - then whey bother. The arguement here is again not argueing against the opinion and the subject - but toward the man.

What I'm saying in a nutshell is this: if you have a particular field of expertise, don't use it against other posters, use it to enlighten other posters. Give your position, by all means. But do have the good grace and courtesy to note significant contrary opinions, and if issues are in dispute, then please note that, rather than presenting only one side as incontrovertible fact. It will help us all make much more informed opinions, rather than simply relishing in flaming one's political opponents.

Why? I haven't seen to many poster do exactly that, to include myself. I am only expressing my opinion and my knowledge, that is all I expect of others.

[Adrian II]

(..) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title.

Observe how it does not mention section 1801 (a)(4). That section concerns not 'foreign powers' but 'a group engaged in international terrorism or activities in preparation therefor'. In this case, the quasi open-ended one year authority of surveillance does not apply.

Besides, 1802 (B) states as a requirement that 'there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party'.

The latter seems to be the case notwithstanding cleverly contrived Conservative constructions concerning a counter-insurgency consensus.

[Hurin_Rules]

Why? I haven't seen to many poster do exactly that, to include myself. I am only expressing my opinion and my knowledge, that is all I expect of others.

Because of expertise and courtesy. Here's an example. Say someone brought up an issue that related to my field of expertise. Say, they were arguing that the Catholic stance on celibacy is correct. I could wade in and say, yes, it absolutely is, and if you look at the transitions in canon law in eleventh century Italy, the Catholic stance is an 'open and shut' case. I could point to the systematic canonical compilations of the 'Gregorian Reform', noting the arguments contained in many of the collections that I have seen but that are not even edited (I.e. they exist only in manuscripts in the vatican), much less translated. I could cite the collections of Bonizo of Sutri, Anselm of Lucca and Ivo of Chartres. I could probably go pretty far to convince you that I am right and it is an 'open and shut' case, because I have the training and access to the sources that you do not. Of course, to do all this, I'd have to carefully exclude contrary opinions and evidence. I'd have to decline to mention that thousands of people in the eleventh century disagreed with the papacy's stance. I'd have to overlook the contrary legal collections that argued the opposite, the fact that there was no single, universally-acknowledged collection of canon law at the time, and the long history of priestly marriage in Western Europe. I'd have to neglect to mention that the issue of priestly celibacy actually helped spark a massive and bitter civil war that killed tens of thousands of people.

But at some point I'd have to ask myself: am I helping to inform my fellow posters and honestly seeking the truth, or just using my expertise to manufacture consent for my position?

[Lemur]

A new player to the table, hello.

Hardly a player -- more of a peanut gallery. But even though I'm not a player, neither am I a player-hater. Peace! Respeckt! Booyakasha!

[Xiahou]

But at some point I'd have to ask myself: am I helping to inform my fellow posters and honestly seeking the truth, or just using my expertise to manufacture consent for my position?

We're not arguing if something is "right" but if it is legal. You also seem to be implying that Pindar is being somehow dishonest because he isn't finding caselaw that is supporting of your argument- that's an assumption on your part isnt it?

[Soulforged]

We're not arguing if something is "right" but if it is legal. You also seem to be implying that Pindar is being somehow dishonest because he isn't finding caselaw that is supporting of your argument- that's an assumption on your part isnt it?

What's just and what's right is hte same. Wha's just is legal, if legal is not just is not legal. Simple as that, if the discussion is about legallity then it's about what's right. If the discussion is about form then the form can be pretty unjust sometimes.

[Pindar]

the Good Guys: Alas, no read the Times article again.

Still refusing to address the issue Pindar ?

This looks familiar. A repost: "What issue (isn't being addressed) here? Do you want to suggest the above is an issue and I am dodging it? Why would that be? Are you claiming to be a source of understanding U.S. jurisprudence? Have you offered any analysis that would demonstrate that idea? Have you offered any argumentation at all? As I look over the pass few pages of your posting: I can't really see any arguments, just the kind of comments like the above. If the above isn't an issue (which seems obvious) and it isn't an argument (which is equally clear) then what is being offered that would require a dodge? What is being offered of substance? Tell you what, so we can avoid these nasty dodge problems: put forward your substantive legal argument: your qualitative proof that makes the case for Presidential malfeasance clear for all as a reply to this post and we will go into it."

[Pindar]

Me:
As far as the end of war: that occurs when there is victory. Whether that takes 5 years like WWII, 8 years like the Revolutionary War, or 27 years like the Peloponnesian War is not relevant.

Again, you're flatly denying the obvious and refusing to consider the wider issues here. The 'War on Terror' is nothing like WWII. When will there be no terrorism? No one can forsee a point in the future when it will end. Essentially, you're allowing for the permanent declaration of war and the expansion of war powers for the president. Somehow, this is all just mundane and routine to you?

Failure to know when a conflict will end does not invalidate the fact there is a conflict and that an ending is based upon victory. Moreover, whether victory may involve more factors than the erasure of a nation state is also irrelevant to the determination of conflict in general and victory as the conclusion. That the President should have at his disposal the powers to achieve victory seems to me obvious.

Yes, the NSA program is legally mundane.

What I'm saying in a nutshell is this: if you have a particular field of expertise, don't use it against other posters, use it to enlighten other posters. Give your position, by all means. But do have the good grace and courtesy to note significant contrary opinions, and if issues are in dispute, then please note that, rather than presenting only one side as incontrovertible fact. It will help us all make much more informed opinions, rather than simply relishing in flaming one's political opponents.

My Good Hurin, there are no significant contrary opinions I'm aware of. The only possible exception would be the CRS Report that came out after this thread had already begun. I have commented on that report. It is not impressive. As I explained, the report couched its rhetoric around the Jackson opinion which doesn't give weight to any real criticism of the program. This is why the CRS Report itself ended up stating things like the following:

"As this discussion suggests, ... some support may be drawn from the Court of Review's decision in In re Sealed Case for the position that the President continues to have the power to authorize warrantless electronic surveillance to gather intelligence outside the FISA framework. Whether such authority may exist only as to those areas which were not addressed by FISA in its definition of "electronic surveillance" or is of broader sweep appears to be a matter with respect to which there are differing views."

The problem is of course the "differing views" noted here, are the consistent and uncontradicted court rulings, all of which support the Administration's stance.

[Pindar]

Observe how it does not mention section 1801 (a)(4). That section concerns not 'foreign powers' but 'a group engaged in international terrorism or activities in preparation therefor'. In this case, the quasi open-ended one year authority of surveillance does not apply.

Besides, 1802 (B) states as a requirement that 'there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party'.

My friend, you are misunderstanding my view. My position has not been to justify the NSA Program according to anything found in FISA. The only reason I mentioned FISA was to show the two fellows you mentioned didn't seem to have actually read the law they were commenting on.

My stance has been that neither FISA or any legislation by Congress can take away the President's inherent Constitutional power. I illustrated this through example, as in Congress could not declare the President's veto power void.* I have then shown how this view has been the consistent position of the courts as well (there are no exceptions). I cited four or five basic cases relating to surveillance to illustrate the point. This is why attempted legal criticism of the NSA program is a non-starter. Let me quote from the most recent 2002 In re Sealed Case again for emphasis:

"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."

*The same logic would apply to the President's inability to invalidate Congressional statute by Executive Order.

The latter seems to be the case notwithstanding cleverly contrived Conservative constructions concerning a counter-insurgency consensus.

Any penchant to pillory the President's program is legally paltry and pained on its face.

[Tribesman]

Tell you what, so we can avoid these nasty dodge problems: put forward your substantive legal argument: your qualitative proof that makes the case for Presidential malfeasance clear for all as a reply to this post and we will go into it."
Nope , since the inquiry hasn't even started sitting yet .
Until then we cannot know if aspects of the program were indeed illegal .
It is futile for you to keep repeating that the basis of the program is legally covered , as you do not know if the program kept within these legal parameters .

This looks familiar. A repost:
If you want a repost ......
Your position is exactly like replying to a subject alledging drink driving and you entirely focussing on if the driver in fact had a drivers licence at the time of the alledged alcohol technicality .
You are still explaining how a drivers licence was issued .

So to repost the issue I am concerned with ....
No Pindar , the issue is has the warrentless surveilance gone beyond its legal bounds .
And that is what the inquiry will decide .
So you can post all the case histories you want , they only deal with the setting up of the program , the inquiry should find if the program has been run correctly in accordance with the legislation you cite .

[Pindar]

Tell you what, so we can avoid these nasty dodge problems: put forward your substantive legal argument: your qualitative proof that makes the case for Presidential malfeasance clear for all as a reply to this post and we will go into it."

Nope , since the inquiry hasn't even started sitting yet .

Then your "contribution" to the thread is at an end.

As a final retort to you other post's elements:

Until then we cannot know if aspects of the program were indeed illegal .
It is futile for you to keep repeating that the basis of the program is legally covered , as you do not know if the program kept within these legal parameters .

The mere fact you have posted the above as you have demonstrates a base misunderstanding of the issue.

If you want a repost ......
Your position is exactly like replying to a subject alledging drink driving and you entirely focussing on if the driver in fact had a drivers licence at the time of the alledged alcohol technicality .
You are still explaining how a drivers licence was issued .

"Your driving example would be better if someone questioned whether Sheriff George had the authority to drive at night. After it was explained: "yes, his license does allow driving at night" to then find the questioner saying: "But, what if he were drunk?" To which, the reply would be: "evidence?""

[Tribesman]

Then your "contribution" to the thread is at an end.


The mere fact you have posted the above as you have demonstrates a base misunderstanding of the issue.

Not at all , there are questions to the legality of the actions that were undertaken .
The questionable actions have been described as mistakes and technical glitches .
Those questionable actions will be addressed by the inquiry, that is generally why there are such commitees , to check if the actions taken went beyond those that are allowed to be taken .
The issue is not past rulings as such , but whether the actions taken are in compliance with those rulings .

"Your driving example would be better if someone questioned whether Sheriff George had the authority to drive at night. After it was explained: "yes, his license does allow driving at night" to then find the questioner saying: "But, what if he were drunk?" To which, the reply would be: "evidence?""
To which the reply would be wait for the inquiry to view the evidence .

You claim that this is a mundane open and shut issue .
People in the AGs office and the Senate judicial commitee do not agree with you . Perhaps you have access to more information than they do .

[Hurin_Rules]

The problem is of course the "differing views" noted here, are the consistent and uncontradicted court rulings, all of which support the Administration's stance.

Ok Pindar, but just for the record then, can you clear up a few things for me:

1. Are you arguing that the president could still have done wiretaps on US citizens, on phonecalls from US sites to US sites, without the congress's resolution authorizing him to use force in the War on Terror?

2. How and to what does FISA apply?

3. Could you also please comment on the relevance of the following cases:

--The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejecting President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Also, in regards to this case, whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program.

--The supreme court case, Hamdi v. Rumsfeld, from 2004, in which the court allowed a man held without charges as an enemy combatant to challenge his detention, over the objections of the Bush administration.

--To what extent the fundamental principle of judicial review over the exercise of governmental power comes into play in regards to presidential power.

I know that's a lot of questions, so take your time. I haven't had much time to post here myself lately. But these are some of the issues that are coming up at Alito's hearings:

http://www.nytimes.com/2006/01/10/po...rtner=homepage

[Pindar]

Ok Pindar, but just for the record then, can you clear up a few things for me:

OK.

1. Are you arguing that the president could still have done wiretaps on US citizens, on phonecalls from US sites to US sites, without the congress's resolution authorizing him to use force in the War on Terror?

No.

2. How and to what does FISA apply?

FISA applies to domestic surveillance of Americans. It was passed in 1978 partially in response to the nastiness of the Nixon Whitehouse.

3. Could you also please comment on the relevance of the following cases:

--The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejecting President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Also, in regards to this case, whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program.

This is from the Youngstown Sheet and Tube Co. v. Sawyer (1952) case I have mentioned earlier. Justice Jackson wrote a concurring opinion. In his opinion he broke Presidential power down into three basic categories: when the President acts congruent with Congressional authorization, when the President acts in the absence of any Congressional grant or denial and when the President acts contrary to the implied will of Congress. This is the opinion that the two lawyers at the CRS used to couch their argument. Given the stance they wanted to take, this was a mistake on their part because while it is certainly the case Jackson looks at the scope of power vis-a-vis other branches, the primary thrust is the core notion that the President does indeed have Constitutionally invested powers. Here are a couple quotes from the opinion I noted earlier in the thread:

"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.."

and

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty."

The passing of the AUMF would invigorate the President's Article II powers and seem to move the discussion of the NSA Program into the strongest representation where the President's inherent powers are joined by Congressional authorization.

--The supreme court case, Hamdi v. Rumsfeld, from 2004, in which the court allowed a man held without charges as an enemy combatant to challenge his detention, over the objections of the Bush administration.

Hamdi was an American citizen who was captured on the battlefield in Afghanistan and sued the Defense Department, claiming that his indefinite detention as an enemy combatant was unconstitutional. The Court upheld Hamdi's detention, while also ruling that he was entitled to a limited hearing regarding the facts of his detention. Part of the Court's ruling included a reinforcement of Presidential inherent authority. I will give you a couple quotes.

"We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use."

and

"The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force]."

This second quote is interesting because the Supreme Court again refused to place or speak to any restriction of the President's inherent Constitutional authority. This is the same stance taken in the 72 Keith case I have explained earlier. Here is the quote from the Keith ruling:

"We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents."

--To what extent the fundamental principle of judicial review over the exercise of governmental power comes into play in regards to presidential power.

This is a big question. Regardless the theoretically strained position Judicial Review occupies, it has become normative in American Jurisprudence. Therefore should SCOTUS rule the President or any branch of government does not hold power X or should do Y this has typically led to compliance from the other branches. A SCOTUS ruling can reverse a previous SCOTUS ruling or go counter to all previous understanding of a law or legal principle. There are examples of this though it is not considered the norm. If SCOTUS were to directly challenge the President's right to gather foreign intelligence in order to protect the nation a couple of possibilities arise. One, the President backs down. Two, the President refuses to recognize any SCOTUS authority to speak to his principle charge of office. If the second were to happen it would mean a Constitutional crises.

I know that's a lot of questions, so take your time. I haven't had much time to post here myself lately. But these are some of the issues that are coming up at Alito's hearings:

I hope that helped.