Analysts: Bush spying rationale legally shaky

[fourays2]

OK, I can see blaming Bush for CFR, the border, and cronyism; but eminent domain abuses? He didn't appoint any of the justices that supported Kelo (and were almost universally liberal). He didn't make Kelo happen. He had pretty much nothing to do with Kelo in general.

About the best connection you can make to eminent domain abuses and Bush is that when he was an owner of the Texas Rangers, the franchise used eminent domain to grab land for their new stadium.

true, he didn't order the SCOTUS to OK the land grabs, but it happened on his watch and I don't recall him being outraged by it.

 

[yucaipa]

Hamdi didnt invalidate the 4th amendment. Saying the president was authorized to go to war doesnt give him plenary powers to violate the constitution or the laws of congress. Many of the powers one might assume fall under "warmaking powers" are actually reserved to congress. Such as suspending haebus corpus and maintaining the army and navy. If congress wishes to grant him exceptions from certain laws, then they can alter the laws to provide such an exception.

I agree,unfortunately the courts are going the other way,expanding the President's autonomy.

The FISA judges have no authority to set aside the law, they are simply arbiters of fairness in the warrant-issuing process.

Ultimately the Supreme Court will have to decide,the last 5 administrations have argued that Congress violated the separation of powers when it created FISA,and so far the lower courts have agreed.

Regardless of what any member of congress says today, the day they are elected President, Democrat or Republican.

President McCain-Clinton, whoever, they and their AG will making the same argument. "the President has the authority"

The true is this is a turf war,a power struggle.

 

[Helmetcase]

No, it doesn't the FISA court has said the exact opposite.

Nice try slick, that was the FISA Review Court. It was not the FISA court. Three judges who hear appeals about FISA decisions. It was an off handed opinion, not a ruling after an adversarial hearing with a plantiff and defendent arguing both sides of the case. You're talking about that Schmidt article; in fact, he's wrong, and no court has actually ruled on this issue. The issue the FISA review court was considering was whether FISA was limited by the president's authority, not the reverse.

Actually AG Gonzales says just the opposite, he publicly cities Hamdi v US decided by the Supreme Court in 2004

Nice try again; he's citing Hamdi and AUMF as reasons POTUS can ignore FISA. Hamdi by and large uses AUMF as a justification.

You're gonna have to get up earlier in the morning to try to slide those kind of whoppers past anyone. But you are correct that it's fundamentally about checking the POTUS's authority; if he can ignore that law, what other laws can he ignore? Republicans in their partisan zeal to support W no matter what he does should bear in mind that there will someday be another president, and you might care to ask yourself what laws that president will invalidate for his own ends.

For my money, AUMF is a far less specific statute than FISA, and I subcribe to the idea that the more specific statute should govern.

 

[yucaipa]

Nice try slick, that was the FISA Review Court. It was not the FISA court. Three judges who hear appeals about FISA decisions. It was an off handed opinion, not a ruling after an adversarial hearing with a plantiff and defendent arguing both sides of the case. You're talking about that Schmidt article; in fact, he's wrong, and no court has actually ruled on this issue. The issue the FISA review court was considering was whether FISA was limited by the president's authority, not the reverse.


Nice try again; he's citing Hamdi and AUMF as reasons POTUS can ignore FISA. Hamdi by and large uses AUMF as a justification.

You're gonna have to get up earlier in the morning to try to slide those kind of whoppers past anyone. But you are correct that it's fundamentally about checking the POTUS's authority; if he can ignore that law, what other laws can he ignore? Republicans in their partisan zeal to support W no matter what he does should bear in mind that there will someday be another president, and you might care to ask yourself what laws that president will invalidate for his own ends.

For my money, AUMF is a far less specific statute than FISA, and I subcribe to the idea that the more specific statute should govern.

If you disagree with the AG trying to couple those two cases together fine, but the FACT remains the the AG IS PUBLICLY defending the Presidents position (which you said he wasn't in your original post ) using that argument.

Shooting the messenger is not going to change the case the AG is making,be it right or wrong.

 

[Helmetcase]

If you disagree with the AG trying to couple those two cases together fine, but the FACT remains the the AG IS PUBLICLY defending the Presidents position (which you said he wasn't in your original post ) using that argument.

Oh, that's definitely his job; he is in some sense the CiC's chief legal counsel. Personally I think you can make the argument either way, I just come down on the side of not letting the exec usurp the legislature in broad, sweeping fashion.

Shooting the messenger is not going to change the case the AG is making,be it right or wrong.

Shoot him? Ha! Although I don't like Gonzales' position on things like detainees and Abu Ghraib, I'd rather see him nominated to the SCOTUS than some of the other people that have been coming down the pipe.

 

[Khornet]

Getting back to the original post

I note the poster compared the NSA activity to the old Vietnam saw about 'destroying the village in order to save it."

Too bad that was a lie made up by Peter Arnett. But it became a standard meme which will not die. Just like the current 'domestic spying' meme.

 

[yucaipa]

I note the poster compared the NSA activity to the old Vietnam saw about 'destroying the village in order to save it."

Too bad that was a lie made up by Peter Arnett. But it became a standard meme which will not die. Just like the current 'domestic spying' meme.

I agree, there's a lot ( of dishonest) one liners and gotcha going on,as in most debates the sides end up yelling bumper stickers at each other and the country suffers for it.


The people in the article questioning Bush's authority are from the

The Congressional Research Service

I'm not convinced they are a neutral party.

The same as when The Justice Dept. publishes there paperwork that Bush has the authority. It headed by the AG who is a appointee.

 

[Bartholomew Roberts]

true, he didn't order the SCOTUS to OK the land grabs, but it happened on his watch and I don't recall him being outraged by it.

1. How is the President responsible for what happens in an independent branch of governmnet just because "it happens on his watch"?

2. Why would he be outraged when the justices he claims to be his ideal rejected the Kelo decision in the dissent?

 

[fourays2]

1. How is the President responsible for what happens in an independent branch of governmnet just because "it happens on his watch"?

I believe this is damaging to our national culture, and he is responsible for protecting our language, culture and borders.

2. Why would he be outraged when the justices he claims to be his ideal rejected the Kelo decision in the dissent?

he wasn't outraged by the decision, that was my point. I think he should have been regardless of wether "his" justices voted for it or not.

 

[Shmackey]

Saying the president was authorized to go to war doesnt give him plenary powers to violate the constitution or the laws of congress. Many of the powers one might assume fall under "warmaking powers" are actually reserved to congress. Such as suspending haebus corpus and maintaining the army and navy. If congress wishes to grant him exceptions from certain laws, then they can alter the laws to provide such an exception.

In areas where the constition is silent, we look to the statutes. If congress had not created a law restraining the president in this specific way, it is arguable that warrantless wiretaps were implictly authorized when they sent him off to make war. But congress specifically denied him permission to do this and did not retract this restriction when they authorized the wars.

Game. Set. Match.

The only people who get to say "it's legal because I said it is" are kings. We don't do kings in this country.

 

[Biker]

Game. Set. Match.

The only people who get to say "it's legal because I said it is" are kings. We don't do kings in this country.

Correction: We *didn't* do kings in this country. Apparantly, times have changed.
Biker

 

[Coltdriver]

I will say this much: I don't know of a single American who has been abused and I don't know of a successful attack on this country since 9/11.

I don't know that I would want to trust the next President with the actions that Bush has taken, but I have zero issues with what Bush has done so far.

I support the Patriot Act, but I also think it should have an automatic six month sunset. There is no harm in renewing it, there could be great harm in letting a less than trustworthy leader have that power.

 

[publius]

I don't know that I would want to trust the next President with the actions that Bush has taken, but I have zero issues with what Bush has done so far.

Kinda funny, since the administration is claiming they are exercising wiretapping powers used by previous Democrat administrations. The powers of the President are not going to depend on how trustworthy you find him.

 

[Camp David]

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.”
"protects civil liberties" - Mr. Roehrkasse would have done well in the era of "We had to destroy the village in order to save it". Are there no limits to what this administration will do?.

rick_reno... I'd like the chance to reply to your allegation and will do it with references documenting my statements=>

In the defense against Islamic Radicalism, measures are necessary to secure the homeland. The President spoke on this very point in October in a speech to the "National Endowment For Democracy" on the "Nature Of The Enemy We Face And The Strategy For Victory." You may wish to read his valid reasoning: http://www.whitehouse.gov/infocus/nationalsecurity/

Further, the President has great legal latitude in wartime to utilize tools toward accomplishing the ends of national security; thus far, since 09/11/01, his policies on national security have prevented further acts of terrorism and enabled law enforcement to detect numerous terror cells domecile within the United States.

As opposed to "destroying the village in order to save it" the policies in place now, during the War on Terror, as designed specifically to address Islamic Radicalism and prevent domestic and international terror from Islamic Radicalism; those that wrongly assume that such measures will affect their civil liberties are imagining a threat that does not exist.

Lest I be accused of debating this point without evidence, you might wish to review the recent polls (January 2006) on this point that reveal that more than half of the nation strongly support the President on the wiretaps; [re: President authorizing wiretaps following 09/11/01 without Court warrants to prevent domestic terror (CBS News Poll): See: http://www.pollingreport.com/

Also see Rasmussen Polls, which attest that "Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States."
See: http://www.rasmussenreports.com/2005/NSA.htm

The War on Terror enables the President to act to protect the homeland against threats to it. Thus far, the President has a distinguished record of accomplishment in the fight against Islamic Radicalism and I am proud that he prioritizes our security. Far from "destroying the village in order to save it", this Administration seeks to preserve all the villages that comprise American, their citizens, and their way of life...

Camp David

 

[captain obvious]

I believe this is damaging to our national culture, and he [Bush] is responsible for protecting our language, culture and borders.

Well, he sure as hell has been derelict in protecting two of those, why would he save the third?

Also I thought it was really weird too that he went around the FISA courts - I can't imagine it would be all that difficult to get a warrant out of them at a moments notice.

And dammit, if Bush is going to keep citing the need for warmaking powers, why doesn't he press congress for a bloody DECLARATION OF WAR? What is so difficult about actually following the constitutionally outlined process for that?

EDIT

Also see Rasmussen Polls, which attest that "Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States."
See: http://www.rasmussenreports.com/2005/NSA.htm

How many Americans supported the revolution, or Germans supported the Nazis? Just because a majority believes it good doesn't make it so.

 

[Lobotomy Boy]

We had to destroy the nation's civil liberties to make it a less appealing target for the terrorist savages.

Great line Standing Wolf! I hope you don't mind that I'm planning to use it for my signature line.

The people in the article questioning Bush's authority are from the Congressional Research Service. I'm not convinced they are a neutral party.

Ho ho. I love it. Yucaipa is check mated on his argument and resorts to attacking the source.

Further, the President has great legal latitude in wartime to utilize tools toward accomplishing the ends of national security;

The Constitution is explicit about what constitutes genuine wartime, specifically requiring a bit more stringent criteria than billowing rhetoric about a "war on terror." Just saying we're at war doesn't make it so.

 

[Helmetcase]

Camp David, the point just flew over your head so fast it ripped your toupee off.

The public supports wiretapping, I support wiretapping, everyone supports reasonable measures to keep us safe. That's not the problem, and you're trying to smokescreen it.

Publius nailed it: Bush isn't going to always be POTUS. (Though he will for longer than I care to see). Therefore, it behooves us to take notice of when the CIC expands his own authority beyond what the law will allow. AUMF has to be bounded by some laws; which laws exactly do you think should be broken--and bear in mind that the next POTUS might be Hillary Clinton? Remember, any authority to break the law you give W just because you like him, you might also be giving her.

 

[1911 guy]

Double standards and comm. monitoring

When any letter, phone call, etc crosses state lines (and in theory they all do because of the network) federal law must be enforced, it falls under interstate commerce. So when a call originates or is destined to the U.S. network, warrants should be and I believe are required. Only completely offshore comms are exempt, I believe. So when can we expect heads to roll over illegal spying on Americans? I think never, I hope soon.

 

[bogie]

Just remember - vote for Anyone But A Bush Crony (the evil republicans) in the next election. Don't worry about your gun rights - worry instead about the rights of people in the U.S. who were in communication with Islamic terrorists overseas.

 

[Helmetcase]

In case you haven't noticed...

...this is about all of our rights, including what many of believe is our right to live in a society governed by the rule of law.

Short version: God isn't spelled B-U-S-H. Get over it.

 

[yucaipa]

Ho ho. I love it. Yucaipa is check mated on his argument and resorts to attacking the source.

If you are going to quote me please at least be honest enough to quote my entire statement, which was trying to show that both sides have an interest here, to protect their turf.

I was not "attacking" anyone.

The only neutral party here are the courts, and all the documentation from the courts in last 25 years side with the executive branch (the President)

If you wish to deny that FACT fine, but that doesn't change what the courts have said.

 

[Khornet]

Couple points here:

1. Many legal experts on this topic have found that the President is in fact acting within his proper scope. I realize some others disagree, but I have readf precious few who have presented in-depth analysis and concluded that Bush broke the letter or spirit of the law.

2. If you describe his actions as "domestic spying" or "spying on American citizens", you haven't studied the topic.

3. The technology involves putting filters on the switches which handle international calls, programmed to watch for specific numbers, addressses, etc. If your call isn't one of them, it just goes through. If it is filtered out and turns out not to contain the key words/data/etc. being searched for, it gets dumped. So nobody is sitting around reading/listening in.

4. I have read the requirements for supporting a wiretap required by the FISA courts. There are at least 15 items, all requiring that 'probable cause' be shown for each. It often takes 72 hours just to complete the form, let alone have the court then review it and approve or reject. If rejected, any data obtained in the meantime cannot be used and must be dumped. Many claim that the FISA courts are 'rubber stamps', but that is either misinformed or disingenuous. The very structure of the FISA serves as a rejection. And more requests have been denied since Bush began than ever before.

 

[Khornet]

Reference for my last point:

50 U.S.C. 1850 (f)

Also see:http://www.powerlineblog.com/

Scroll down to "72 Hours: Who Could Ask For More?" where the rules are shown.

 

[Bartholomew Roberts]

1. Many legal experts on this topic have found that the President is in fact acting within his proper scope. I realize some others disagree, but I have readf precious few who have presented in-depth analysis and concluded that Bush broke the letter or spirit of the law.

Shouldn't we be concerned when the executive branch claims sole discretion to determine both who will be wiretapped and whether or not that action is legal?

2. If you describe his actions as "domestic spying" or "spying on American citizens", you haven't studied the topic.

Really? Since the administration itself admits to monitoring American citizens inside the domestic United States; maybe you would like to explain why this doesn't fit the label of "domestic spying" or "spying on American citizens"?

3. The technology involves putting filters on the switches which handle international calls, programmed to watch for specific numbers, addressses, etc. If your call isn't one of them, it just goes through. If it is filtered out and turns out not to contain the key words/data/etc. being searched for, it gets dumped. So nobody is sitting around reading/listening in.

First, what are the odds that the key words/data being searched for can be found in calls besides those attributed to terrorists?

Second, what is your source for this claim? It seems to me that those who have the knowledge to discuss the subject authoratively would be prohibited by law from commenting. So is this an unauthorized leak, an uninformed comment, or did we suddenly declassify this information in the last year?

4. I have read the requirements for supporting a wiretap required by the FISA courts. There are at least 15 items, all requiring that 'probable cause' be shown for each. It often takes 72 hours just to complete the form, let alone have the court then review it and approve or reject. If rejected, any data obtained in the meantime cannot be used and must be dumped.

How fortunate then that from 1979-2003, only 4 requests have ever been rejected (all in 2003). Even more fortunate, due to the Patriot Act you can start listening first and ask for a FISA warrant later, so timeliness is not an issue.

Many claim that the FISA courts are 'rubber stamps', but that is either misinformed or disingenuous. The very structure of the FISA serves as a rejection. And more requests have been denied since Bush began than ever before.

This statement is disingenuous in its own right. For 24 years, from 1979-2002, not ONE single FISA request has been denied. In 2003, there were 1,727 applications to FISA and four were denied. In 2004, there were 1,758 requests with ZERO denials. Do you really meant to sit there with a straight face and claim that FISA is NOT a rubber stamp on domestic surveillance?

While you are techinically correct that there have been more FISA denials under the Bush administration than ever before, I really don't see much cause for alarm in denying four out of 1,727 requests. I am much more alarmed that the same court that hasn't seen fit to make a denial in 25 years makes four in one year and even though these four are less than 0.1% of all requests, it prompts the administration to bypass the process entirely.

 

[Waitone]

This statement is disingenuous in its own right. For 24 years, from 1979-2002, not ONE single FISA request has been denied. In 2003, there were 1,727 applications to FISA and four were denied. In 2004, there were 1,758 requests with ZERO denials. Do you really meant to sit there with a straight face and claim that FISA is NOT a rubber stamp on domestic surveillance?

Different statistics from what I've seen. Citations?