Monday, January 23, 2006

White House steps up defense of domestic eavesdropping

Bush also said he kept key members of Congress informed.

"You know, it's amazing that people say to me, 'Well, he was just breaking the law.' If I wanted to break the law, why was I briefing Congress?" Bush said, apparently referring to former Vice President Al Gore's accusation last week that he was "breaking the law" by authorizing the program.

"These are not phone calls within the United States," Bush said. "This is a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States.

"I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process. We briefed members of the United States Congress ... about this program."


Well, I don't know about you, but I feel much better knowing that he had all kinds of lawyers and congressmen looking over the program. Of course, the lawyers work for the executive branch or the NSA, and I wonder just exactly which congressmen he briefed on this? If he was so sure of his legal footing, why didn't he get approval from the actual people the law requires?

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11 comments:

John Howard said...

The law is for pussies. We're at war, damn it! I really like this part:

"This is a phone call of an al Qaeda, known al Qaeda suspect, making a phone call into the United States.

He keeps saying those things like his word is good for anything. But, if that's true, there's absolutely no reason he can't use the legal way to do it. Asshole.

Storm said...

Police routinely use warrantless searches and seizures when there is probable cause and the evidence is likely to degrade if no action is taken.

Name me one person harmed in some way by this program.

Congress can not and should not be allowed to legislate away the powers of the President given to him by the Constitution.

What are your thoughts about Clinton's spying on millions of Americans (Echelon) for mere crimes and/or to intimidate those investigating him.

John Howard said...

Yes, when there is probable cause, and extenuating circumstances. Also, there is oversight if that happens. All three of those things are lacking in the case of Bush's spying.

It's not one person, it's everyone. What if the Government required you to send a report of your daily activities? That wouldn't hurt anyone, either. That's a lousy argument. tIf the President is not subject to the law, then he can do whatever he wants. When he wants to break some law that you value, it will be hard for you to argue against it, when you're in favor of him breaking it in this case.

This power was not given to the President in the Constitution and the notion that it was is disingenuous.

I don't care what Clinton did, he is not out President anymore. Why is it that Bush supporters are now so in love with Clinton? Anyway, I don't know the details of what you're talking about, but if your characterization of it is correct, then I'm just as opposed to it as I am to Bush's spying. It doesn't matter who the President is, I don't want them having unchecked power, even if it's a guy I support, which is where I differ from Bush supporters, who seem to worship him and support anything he does simply because he does it. There is no question that if Clinton did anything approaching this, the same people who support Bush doing it would be calling for impeachment. And ironically, that's why they shouldn't support it when Bush does it, because giving these powers to the office will one day mean that they are used by someone who they don't support.

Storm said...

"Also, there is oversight if that happens"

What oversight are you talking about? and you make it sound like an accident

It is sound police work.

Perhaps I should help you before you step in it-- I actually have executed warrantless searches so I knda know what I am talking about

"What if the Government required you to send a report of your daily activities"

No one is asking me too although the ACLU has required me to report all manner of nonsense.

"If the President is not subject to the law"

Let me try again, the President is subject to the Constitution, Congress can not legislate the power of the office away from the president to themselves it is called balance of power. The Fisa Court was not created until the 1970's so what you are saying that ever President before that intercepted correspendence was in violation of the Constitution?

The mention of Clinton is ment to highlight the hypocrisy. we merely want to point out other President's did virtally the same thing and in Clinton's case on a much larger scale believing the law was on his side. We also want to ensure the left does not rewrite history.

John Howard said...

Oversight, you know like if they did it when they shouldn't have, they can be held accountable. It's a pretty simple concept.

You don't have the power to execute a warrantless search whenever you feel like it for no reason, and when asked about it by your superiors to not tell them what you did or why you did it. That's what the President is doing.


I realize that no one is asking you to do that, it is a hypothetical situation that I would assume you would object to even though no one is hurt. I used it to point out the silliness of your argument that no one is hurt by warrantless wiretaps.

The Constitution does not give the President the power to do what he is doing. that he also broke the law (FISA) is a separate matter.

Hypocrisy, that's something you guys could use a lesson on. Like I said, I don't know all the details of what Clinton did, but as I said, if it is how you characterize it, I am just as against that. Why is it that you are apparently only against Clinton's alleged abuse of power and not Bush's? Who is being hypocritical? And again, whatever Clinton did is history, I'm concerned with current abuse of power, because it's something we still have the ability to change.

Storm said...

You referred to oversight as if you were talking about a specific mechanism. Of course, we call it Probable Cause. The ultimate oversight would be citizens complaining. In this case we are talking about phone calls from/to terrorists sounds like PC to me.

No one has said Bush just did want he wanted everyone agrees he did talk with Congress.

FISA was passed in the 1970's so I guess all Presidents before were dictartors.

The Constitution grants the President the power to defend this country from both foreign and domestic agents that would seek its destruction in general terms.

But here is an idea the hearings are set to begin soon so why do we table the discussion about the exact legal justification until gonzalez takes the stand.

As for Clinton, Clinton's actions should have been investigated further for 1) we were not in a declared state of war 2) he was gathering information on known Americans 3) his administration had files on members of the opposition political party--a clear problem in a Democracy.

I never said what Clinton did was ok. However, the point is most of what he did was probably legally defensible since these guys do not do anything before talking with the lawyers.

John Howard said...

You keep making this ridiculous assumption that this will only be used against terrorists. There is no evidence other than the President's word to suggest that that is true. And there is a giant reason to doubt his word because if it was true, there's no reason that this couldn't be done legally.

When you say everyone agrees that he talked with Congress, that's a bit misleading. He briefed some members of Congress. Also, you make it sound like they had to sign off on it, and they didn't. Some had reservations that were communicated at the time, and others have come out and said they were not comfortable with it. Either way, they had no say in it, and it wasn't the entire Congress.

Your Constitutional argument could give the President the power to do anything, as long as he says it's important to protect you. Surely, you don't contend that that sort of unlimited power was the intent?

They have given their exact legal definition, and it's bullshit. Anyway, why table the discussion? Certainly we could do that, but if that had been done before, we might not even be having hearings at all. These things are important to talk about. Even if I ultimately came to the conclusion that I was wrong in my opinion of this, I still think it's important to talk about. It's certainly a bad idea to give the President unchecked power simply for the asking, with no debate about it.

Maybe you're right about Clinton, I don't know, but again, he's gone, anything he was doing is no longer an issue unless it has been continued by Bush. And all three of your conditions also apply to Bush, do you seriously not see that?

Just because someone talks to lawyers doesn't mean something is legally defensible. Also, even if it is legally defensible, with something this intrusive, they should at the very least be forced to put on that legal defense.

Storm said...

Jrh I must tell you that I really enjoy our time together.

I debate another liberal but he is really not much of a challenge. So would say I dominate that area of the forum now because I routinely cut him off at the knees.

No I do not see that Bush meets those three conditions 1) Congress did authorize the invasion of Iraq and therefore war 2)There has been no information to suggest Bush was doing anything like Echelon 3) No one found 1100 FBI files lying around in the White House

I am withdrawing from the exact legal points because I do not know the exact laws other than U.S. Code title 50. I am not a lawyer.

"least be forced to put on that legal defense" I already agreed with you that the hearing are justified if only to alert Hillary that she had better use this power carefully.

Storm said...

JRH I ripped this off of someone else but I think it summarizes the BUsh Adminstration position

http://wizbangblog.com/podcast/2006/01/wizbang_podcast_6.php




Legal basis for NSA intercepts


Another leak the other day was a Justice Department memo giving the legal basis for the NSA intercepts. Orin Kerr at the Volokh Conspiracy had this to say after reading the memo.

The Justice Department has published a 42-page defense of the NSA's domestic surveillance program. The new document is basically an appellate brief filed in the Court of Public Opinion. It expands on arguments made in cursory form in the prior DOJ letter to Capitol Hill, and tries to make the case that the surveillance program is legal. In this post, I want to start by just summarizing the DOJ argument. I hope to respond to specific parts of the argument, but it's not something to roll off quickly: the 42-page brief is chocked full of legal citations, including many authorities I have never read, and it's going to take some time before we can unpack the argument carefully and see whether it measures up.
Here is the administration's argument in a nutshell:

First, the President has inherent constitutional authority to order foreign intelligence surveillance monitoring. The President's core job is to protect the country against foreign attack. The 9/11 attacks made this interest particularly strong: Al Qaeda is a clandestine enemy, and we need to gather intelligence to stop them. The Authorization to Use Military Force further emphasized this power: it brought foreign intelligence surveillance from Steel Seizures Category II to a Steel Seizures Category I, in which the President's authority is at a maximum. The AUMF confirms and bolsters the President's authority; under the test announced in Justice O'Connor's concurrence in Hamdi, foreign intelligence surveillance is a classic "fundamental incident of war" that the AUMF authorizes. The combination of the President's Commander-in-Chief power and Congress's explicit authoritization in the AUMF gives the President full authority to conduct this monitoring.

Further, the monitoring doesn't violate FISA and also complies with the Fourth Amendment. FISA itself is on fragile constitutional ground, and in any event the AUMF is a "statute" that authorizes the monitoring. Further, the so-called exclusivity provision of the wiretap act, 18 U.S.C. 2511(2)(f), doesn't trump this commonsense result. The legislative history of the section was focused on the notion of Congressional authorization, which the AUMF provided, and a contrary reading would create serious constitutional questions. The canon of constitutional avoidance requires construing the statutes to allow this sort of surveillance: the constitutionality of a statutory prohibition on such monitoring presents very difficult questions, as the NSA activities lie at the core of the Commander in Chief power. There are few guideposts here, and courts should construe the statute in a way to avoid having to reach these difficult constitutional questions. FISA is unconstitutional to the extent it directly interferes with the President's constitutional duty, and it would be prudent to construe the statute in a way that avoids these constitutional questions.

Finally, the monitoring program fits within the Fourth Amendment "special needs" exception. The rule here is reasonableness, which requires a balancing of governmental and privacy interests. The program is reasonable: the government's interest in thwarting a future attack is overwhelming, and the monitoring itself has been tailored and subject to considerable internal review.

Anyway, that's the basic argument. I hope to post some analysis of it soon.


Don't expect the people who think Bush is the reincarnation of J. Edgar Hoover to accept any of these arguments. This is going to get interesting, with hearings and witnesses and everything, over the next few months. Stay tuned, Podcatchers.

John Howard said...

1) War has not been declared on anyone
2) There is every reason to believe that this program includes Americans and no reason to believe that it doesn't. I'll be happy to revise my opinion if Bush lets anyone at all know exactly who he is spying on.
3) Whether they were found or not doesn't change the fact that there is evidence to suggest they are there.

I'm not a lawyer either, but since any number of lawyers can fall on either side of the issue, but most of the ones on Bush's side work FOR him, that makes me a little skeptical.

If you agree that hearings are justified then what are you arguing about? I'm certainly not suggesting that we kick Bush out of office without even investigating, I just think it's worth finding out what is really going on.

And yes, that is the administration position and you don't have to be a legal scholar to see it's bullshit. They are basing way too much on the Authorization to use military force, particularly when the people who voted for that authorization are the same ones that are now calling for hearings into this program. If they thought that they were authorizing things like this program with that vote, then why would they want hearings into it now? Clearly it wasn't their intent, and the administration is inferring far greater power from it than it was intended to give.

Storm said...

JRH did ou catch the news?

Demos are already on the ropes on this one.

Today, I actually heard their complaint now is that his staff only briefed 8 members instead 12.

I am cracking up.

I told you this is a rope a dope do not be fouled Demos are being sucked into a fight that will only leave them with less seats and egg on their faces.