The assertion that the president is perennially “at the zenith of his powers” seems to be a common theme of this administration, doesn’t it? And the assertion that president is not claiming he has “a blank check that says [he] can do whatever he wants” rings rather hollow. It seems he is doing exactly that, and claiming that a vague, generalized authorization to prevent terrorism somehow trumps a law saying not to do certain particular, specified things. I’m not sure if anyone in the White House or the Justice Department went to law school, or understands basic logic for that matter, but generally speaking, the specific takes precedence over the general. For example, if there are two laws on the books, one that says “you are authorized to eat three meals a day” and another that says “you’re not allowed to eat broccoli,” you can’t justify eating broccoli, in defiance of the specific ban, by citing the generalized “three meals a day” law. That simply is not how laws, or logic, work. Just saying.
On the other hand, I have to question the neutral, unbiased statement by New York Times reporter Eric Lichtblau that the White House is attempting to “quell the growing political uproar over the N.S.A. program.” Growing political uproar? Really? Seems more like a stagnating political uproar to me. Perhaps the outrage in the Times newsroom is growing more feverish with each passing moment, but with polls showing that the American people — misguidedly or not — support the president on this issue, I don’t think it’s factually justified to paint a picture that implies the Bush Administration is teetering on the edge of a political abyss on this issue. Lichtblau’s apparent support for his “growing uproar” assertion is: “House Democrats will be holding their first hearing Friday on the legality of the program, and the Senate Judiciary Committee has scheduled another hearing in two weeks.” But c’mon. Multiple overlapping congressional investigations are hardly indicative of a growing uproar; they’re indicative that you’re in Washington, D.C., it’s a weekday, and the Earth still spinning on its axis.
P.S. It should be noted, and I’ll admit it straightforwardly, that I haven’t actually read the administration’s memo on this issue. I’m kinda busy, it being the first week of school and all. I’m just giving my general impression of the situation, based on the Times article and other things I’ve read. If someone thinks that impression is based on an incorrect understanding of the facts, please feel free to comment as such. I am certainly not unwilling to consider the possibility that relying on a New York Times summary of an administration argument may lead to false impressions. :) That said, I’m quite skeptical of Bush’s position on this particular issue, and disinclined to give him the benefit of the doubt. So there, I think all my biases are out in the open. Et tu, Lichtblau?
UPDATE: Welcome, InstaPundit readers!
If you’re not familiar with my blog (some of you might remember me as “that Katrina guy”), please have a look around. In particular, for something entirely non-political, check out Becky’s and my honeymoon pictures (no, not that kind of honeymoon pictures, sorry) and the wedding proofs from our official photographer. See also here and, to see how I liveblogged my own wedding (well, by proxy anyway), here.
UPDATE 2: Commenter Nigel makes a good point:
You state that “the specific generally takes precedence over the general.” This is true, as far as it goes, but only when you are comparing two statutes. A legislative enactment (the FISA statute) never may restrict the Consititional power granted to the executive branch. It is entirely unclear whether FISA, when applied to these circumstances, is consititutional. So that’s the rub. Was this a legitimate exercise of executive constitutional authority? If so, FISA cannot restrict that power.
He’s right — a piece of legislation cannot trump the Constitution. However, if I understand the administration’s position correctly (and again, I emphasize that I haven’t actually read the full memo; click here if you want to do so), they’re not claiming that the Constitution by itself gives the president the authority to overrule the FISA statute; rather, they’re claiming that the Congress’s post-9/11 authorization to fight terrorism gives him that authority. That is a question of “comparing two statutes,” and thus my original point about specific vs. general comes into play.
Dane responds that Bush’s action is “both illegal under FISA and explicitly Unconstitutional.” Of course, if the latter point is correct, then the former point is irrelevant. If Bush’s action is either explicitly authorized by the Constitution, or explicitly barred by the Constitution, then it doesn’t matter what FISA says. FISA only matters if the Constitution is silent on the question of whether Bush can do what he’s doing. And in that case, I don’t believe Bush can win by relying on the post-9/11 authorization, because FISA’s specific provisions win out over that law’s generalities.
Regardless, Nigel’s second point is certainly wrong, at least as applied to me:
People’s attitudes about whether this was a legitimate exercise of consitituional power issue seems to be tied to whether you belive we are in a war (the “war on terror”) or whether terrorism/Al Qaeda is a matter for the criminal justice system. Ask yourself that question and your position on W’s actions here likely follow. And the answer will likely identify your political party affiliation.
Well, I’m a Democrat (albeit a conservative, Lieberman-style Dem) who believes we are in a war, and that we cannot prosecute that war exclusively, or even primarily, through the criminal justice system. And yet I also believe civil liberties are important, and my attitude about whether this was a legitimate exercise of constitutional power is extreme skepticism.
UPDATE 3: Another commenter, Hans Pew, offers an alternative to my “broccoli” analogy:
First a law is passed which says, “You can’t eat broccoli without asking Mom first.” Then a second law is passed which says, “You can eat anything you want on Thursday.” Now the question is, do you have to ask Mom before eating broccoli on Thursday? The Bush administraton says no, his critics say yes. Now, I’m not sure that this analogy is completely fair, but I think it comes closer than yours.
Perhaps so. I don’t claim to be an expert on this. I’m mostly just trying to provoke an interesting debate… which seems to be working.
Regardless, I’m with the first President Bush: I don’t much care for broccoli. Now, cauliflower, on the other hand… mmm.
UPDATE 4: More from the comment section: Paul Osnes and Lojo say my response to Nigel is wrong. Excerpt from Lojo’s comment:
[You’re] incorrect in saying it is a statute to statute comparison. The powers the President has are constitutional, but can only be exercised if Congress enables them, which they did with the post-9/11 authorization.
Personally, I would love to see the Supreme Court say that the president can’t exercise his war powers unless Congress, you know, declares war (with possible short-term emergency exceptions, not applicable here). But I doubt that will happen. So perhaps Paul and Lojo are right.
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January 20th, 2006 at 12:41:54 pm
“I’m not sure if anyone in the White House or the Justice Department went to law school, or understands basic logic for that matter, but generally speaking, the specific takes precedence over the general.”
I’m reasonably certain the Deputy White House counsel went to law school.
:)
I see Kelley’s handiwork here. “Sometimes saying what the law is means saying the President gets to say what the law is. And this is one of those times!! WHOO-WHEE!!!”
January 20th, 2006 at 12:53:31 pm
A take by Dick Morris, former Clinton chief political advisor and toe-sucking-fetish extraordinaire:
“The Fox News poll of Jan. 11 asked voters whether the president ’should have the power to authorize the National Security Agency to monitor electronic communications of suspected terrorists without getting warrants, even if one end of the communication is in the United States?’ By 58 percent to 36 percent, the answer was ‘yes.’ Indeed, 42 percent of the nation’s Democrats agreed that the president should have this power. *** Respondents support renewal of the Patriot Act by 57 percent to 31 percent. (Even Democrats only oppose renewal by 40-47.)
“And those who called attention to the NSA policy of warrant-less wiretaps are called ‘traitors’ by 50 percent of the voters and ‘whistleblowers’ by only 27 percent. Democrats opted for ‘traitors’ by 42 percent to 34 percent.
“In other words, Ann Coulter represents the Democratic mainstream better than Al Gore on this one!”
http://www.nypost.com/postopinion/opedcolumnists/60695.htm
January 20th, 2006 at 12:56:58 pm
Joe Mama-
Yep. In 1917 I’m sure the majority of voters (which were all men) would agree that it was okay to beat your wife, too. Just because a majority of ill-informed Americans believe something doesn’t make it legal or right.
January 20th, 2006 at 1:01:52 pm
On this topic, here is a story about how Yahoo handed over data to the White House without a warrant and how Google is fighting the WH…
http://www.timesonline.co.uk/article/0,,11069-2002169,00.html
…And here I thought this shit only happened in Communist China. Silly me.
January 20th, 2006 at 1:14:24 pm
On a related topic, wondering what you law school folks think about Alito’s nomination?
Backstory: one of the manifestations of Bush’s power grab has been his unprecedented use of the “signing statement” to validate when and how he feels legislation applies to him.
Signing statements were historically rare until a Reagan staff counsel made the case for their frequent use.
That counsel? Samuel Alito.
I am not a lawyer, nor do I play one on tv, but it would seem that the Senate, regardless of pary affiliation, would be opposed to Alito?
Forget abortion, the fact that this guy is behind a policy that usurps legislative power should make him distasteful.
Am I reading this wrong?
January 20th, 2006 at 1:19:30 pm
“Doesn’t make it legal or right..”
That is only a variation on the theme of “the people are right when they agree with me, and ignorant fools to ignored when they do not.”
A great illustration is the scene in the movie ‘Citizen Kane” when Orson Welles (i.e. Hearst) is running for office. The editor of one of his papers shows him the alternate headlines announcing the election results: if Kane wins? “The People have Spoken”, if Kane loses? “Fraud at the Polls!”
January 20th, 2006 at 1:20:59 pm
Jazz - in your own comment in response to a blog, you can only write a wrong …
January 20th, 2006 at 1:36:53 pm
A poll by Fox of his vieweres? wow. And still a large group of folks think Bush overstepping his bounds.
Ok. More to the point: NSA told Bush before 9/11 that the 4th amendment getting in the way of serious work by that group and advised him to change things! Bush went along with this!! You don’t believe? go to http://www.goodshit.phlap.net (not safe for work or kids under 18) and there you will see posted at the early entries the NSA memo, released under Freedom of Info Act. And there too more about Microsoft and Intel; workarounds for search engines allowing Govt spying on search data.
Yes. Tehre is a growing “uproar” abpout this spying, and the fact that there are now two cases going to the courts suggests that some of us are indeed a bit upset.
January 20th, 2006 at 1:37:30 pm
A&A - one of these millennia, have someone explain to you the differences among bits, data, knowledge, and wisdom …
Some would put information in that spectrum, between data and knowledge …
Those of us who are information-competent are not at all afraid of the type of data that the gov’t seems to be asking for being given to the gov’t …
The situation is pretty much analogous to the use of the loyalty cards given out by supermarket chains … each individual’s spending patterns would seem to be readily available for potential misuse because we have our loyalty card id attached to any purchase we make …
The supermarkets want the informatin since it helps them make buying decisions more in keeping with the preferences of their aggregate customer base, and helps them to keep what is wanted stocked at each supermarket location … and, yes, they *may* gain information about how a given Joe Spender buys things …
The supermarkets gain the same information when you and I use our cards, with my card being used for your purchase and your card being used for my purchase … each individual still receives the appropriate ‘price breaks’ and yet the validity of a given individual’s purchasing patterns is significantly reduced …
Next time you’re in line with someone who has radically different purchases, see if they would like to do such a thing, to strike a blow for the individual’s liberty ! (grin)
It’s why some supermarkets think that I like celery, and tequila, and certain feminine hygeine products, and herbal teas …
Potentially even more important consideration … by the time any big bureaucracy processes the terabytes of data and then starts to try to make sense of it, pretty much any potentially-useful specific information it may contain is be well-out-of-date …
A combination of information-competent libertarians and The Purlonied Letter and Heisenberg’s Undertainty Principle remain our best protection …
January 20th, 2006 at 1:54:27 pm
Thank you for the chuckle, Alasdair. Whenever anyone wants my social security number and I don’t want them to have it (which is most of the time) I use 567-68-0515. It’s Richard M. Nixon’s.
January 20th, 2006 at 2:01:05 pm
Hmm. We give the president the power to incinerate our enemies with a minimum of consultation (else it would not be called deterrence). And yet those with this power (that the soviets claimed would turn the leadership of the free world into dictators because no one would ever voluntarily choose to part with such power) have always stood for election, and stepped aside at the end of their term.
The law is the people and their vote. This squabble is less about the law than who runs the executive branch of the government, congress or the president. The people will decide as they next vote.
January 20th, 2006 at 2:22:38 pm
For information Purposes:
http://www.captainsquartersblog.com/mt/pubfiles/wiretaps.pdf
This is the PDF of the memo draft that outlines the legal rationale behind the program. May want to read this Brendan, instead of the NYT.
Not saying the Times wasn’t accurate (I have only scanned the memo), but wanted to post it here as the source of information.
January 20th, 2006 at 2:39:53 pm
Whatever happened to the rule of law?
Or, let’s posit a hypothetical.
If, in time of war, the President, as commander in chief has the authority to take whatever actions deemed necessary to win the war, including suspending provisions of the Constitution then it would be legal and proper for a future President to issue an executive order - without the consent of congress or the courts - banning guns and ammunition in the United States and then use their police power to enforce said executive order. And in the case of the war on terror this war goes on indefinitely. So the right to, say, bear arms could be permanently suspended unilaterally by the president.
The question I have is this, how many out there think it is a good idea to let the President have that kind of power?
Yeah, me neither.
January 20th, 2006 at 2:43:39 pm
You state that “the specific generally takes precedence over the general.” This is true, as far as it goes, but only when you are comparing two statutes. A legislative enactment (the FISA statute) never may restrict the Consititional power granted to the executive branch. It is entirely unclear whether FISA, when applied to these circumstances, is consititutional. So that’s the rub. Was this a legitimate exercise of executive constitutional authority? If so, FISA cannot restrict that power.
People’s attitudes about whether this was a legitimate exercise of consitituional power issue seems to be tied to whether you belive we are in a war (the “war on terror”) or whether terrorism/Al Qaeda is a matter for the criminal justice system. Ask yourself that question and your position on W’s actions here likely follow. And the answer will likely identify your political party affiliation.
The issue of legality of the wiretapping will not be decided unless and until the Supreme Court decides. I don’t think it’s a close question.
January 20th, 2006 at 2:50:35 pm
Maybe you’re right, A&A, and you know better than a majority of Americans. I certainly had those feelings when Clinton was president (although he was not elected by a majority of voters either time). Then again, maybe a majority of Americans are simply able to distinguish between the harm caused them by the warrantless wiretapping of certain terrorist suspects within the U.S., which at this point is still entirely theoretical (as evidenced by the aforementioned lawsuits filed by the CCR and ACLU, in which the plaintiffs all admit they have no evidence whatsoever that they have been eavesdropped on by the gov’t, let alone without a warrant . . . which will inevitably lead to the cases being rightly thrown out for lack of standing), and the harm caused them by NOT conducting such surveillance of terrorists, which is most certainly NOT theoretical (as evidenced by 9/11).
January 20th, 2006 at 2:52:17 pm
Nigel the power is both illegal under FISA and explicitly Unconstitutional. At which point your argument kind of falls apart.
January 20th, 2006 at 2:53:56 pm
Alasdair,
When the government wishes to offer me consideration for the right to track my phone conversations, etc (perhaps in the form of a tax break?) -
And the government offers me the right to end the contract at any time of my choosing -
I will be the first guy to sign up.
Obviously, your comparison to the grocery store loyalty card holds only on the surface (in this case, irrelevant) features of the respective programs.
January 20th, 2006 at 3:00:05 pm
Mama, the trouble with wiretapping without a warrant that is classified is expressed perfectly by you. Who the hell knows who these people were wiretapping? We are supposed to just trust them that they are using it fairly? Yeah right, I’m supposed to trust an administration that has constantly lied to the American people? Not on your life, I’m not that stupid. This is really kind of simple… If what Nixon did was unconstitutional and illegal and impeachable than what Bush has done is the same. In fact, I would Bush has done more destroy the credibility of our nation and the Presidency then Nixon, Jackson, Grant, and Clinton combined.
January 20th, 2006 at 3:03:49 pm
I’m not a lawyer, and I don’t pretend to know who’s right about the law on this issue, but I think your analogy about eating broccoli is seriously flawed. First of all, the order in which the laws is passed is important. Second, the Bush administration would undoubtedly argue that the relationship between disallowing eating broccoli and and exhortation to eat three meals a day is fundamentally different that the relationship between the two laws in question here. Let me propose a new analogy. First a law is passed which says, “You can’t eat broccoli without asking Mom first.” Then a second law is passed which says, “You can eat anything you want on Thursday.” Now the question is, do you have to ask Mom before eating broccoli on Thursday? The Bush administraton says no, his critics say yes. Now, I’m not sure that this analogy is completely fair, but I think it comes closer than yours.
January 20th, 2006 at 3:18:13 pm
I don’t think that analogy quite works either.
But in that case, all presidential powers would be superseded by the fourth amendment that the FISA rule codifies into a legal procedure for obtaining wiretaps in adherence to the principles in said amendment.
Beyond that, the “intent of the framers” is to have the President in an administrative role and all the action happens in the Congress… If you were to go by “Intent of the framers” Bush clearly absolutely does not have the power to do what he did.
January 20th, 2006 at 3:29:17 pm
Californio-
It’s irrelevant what the majority of Americans think in this case. Either the President broke the law or he didn’t. It is for the courts to decide, not for the 1,000 sampled Americans who probably don’t even know what the NSA is.
January 20th, 2006 at 3:39:17 pm
Joe Mama-
I’m sure most Germans thought Hitler was right, too, in 1938.
January 20th, 2006 at 3:41:35 pm
Alasdair-
The difference between what Super Foods does and what the Federal Government does is when I fill out the membership card at Super Foods I give permission to the company to snoop on me. I shouldn’t have to worry about it on Yahoo or Google, which are the 21st Century version of the public square.
January 20th, 2006 at 3:45:17 pm
“[The Administration is] claiming that the Congress’s post-9/11 authorization to fight terrorism gives him that authority. That is a question of ‘comparing two statutes,’ and thus my original point about specific vs. general comes into play.”
I’m not sure that’s what the Administration is claiming, or at least, that’s not what they should be claiming.
It doesn’t matter if the post-9/11 authorization didn’t make the NSA program legal; its real effect was to put us on a war footing, allowing the President to execute the NSA program under his proper Constitutional war powers. And that’s not a statute-to-statue comparison.
January 20th, 2006 at 3:50:18 pm
dcl,
Nice opinion, but do you have support the statement that the actions here are explicitly unconstitutional? Are you thinking of the Fourth Amendment, perhaps? But that ties in with the point about law enforement vs war. The Fourth Amendment does not apply outside the law enforcement context. It certainly does not restrict the executive’s power as CIC. There will be no finality on the question of legality/constitutionality until the Supreme Court decides. You can’t simply delare it to be so and expect that to carry the day.
RE: BL’s comment about my “test” (your opinion on whether we’re in a war as bearing on your opinion of whether W’s actions are legit, and how that bears on your party affiliation), I did say “likely,” and for those like BL who are close to the middle, naturally it may not work every time. But more often than not it will.
January 20th, 2006 at 3:54:09 pm
A&A - careful - you’re starting to sound rational … any moment, dcl’s gonna launch his ad hominems …
(grin)
Jazz - the relevant part of the analogy is the information competence part … as long as the CIA and those leaking the whole NSA thingie are those who are running it, you and I are perfectly protected …
Ask around … talk with those who have been computer geeks back before PCs existed … when RAM and magnetic media were both horrendously expensive, we had to KNOW what each bit of data (1 or 0) really meant in The Scheme of Things … and we learned that the computer has all the worst aspects of a slave - it can only follow explicit orders and has no ‘incentive’ to be useful …
Us computer geeks have been making some stuff work better by pointing out where it can be improved when we approve of it and we have pointedly and explicitly not said a word when we have not approved of the use to which DP can be put …
I will start to worry when The Government starts employing competent folk at all levels … which is when Dilbert stops being relevant … “If blue is your colour, feel free to hold your breath !” …
Svolich - your technique works well … as does making up different ones for different excessively-nosy areas …
With mailings, some of us use different middle initials when we sign up for things … and we can tell the source of junk mail from whichever middle initial is used …
When a programmed phone survey calls during mealtimes, we hand the phone to our 2 year old (or, now, one of us may choose to be the 2 year old) … some minutes later, the survey has collected random noises on *their* dime … and we don’t get any more surveys from ‘em for some reason …
January 20th, 2006 at 3:55:57 pm
I am going to point out something about this plan: it requires one half of the communications to be international (i.e., outside the US). Further, one of the parties needs to be either a suspected terrorist or having ties with a terrorist group.
ALOT of people are tossing around strawman arguments (Bush will take all your guns away, etc.), but before everyone heads down the slippery slope argument, let’s keep in mind what the program is targeted for. Because this hardly in the class of the Nixon wiretapping of political opponents.
And again, please read the PDF I linked too. Whether you agree with it or not, it will at least give you an idea of where the administration is coming from with its argument.
January 20th, 2006 at 3:57:36 pm
Angrier -
Oh for God’s sake, did you need to invoke Godwin’s Law so earlier? That’s beneath you.
January 20th, 2006 at 4:09:46 pm
A&A,
I’m sure you’re scoring huge points in your own mind, but what men thought in 1917, or the Germans thought in 1938 (neither of which I think you can speak intelligently about), says nothing about the merits of how concerned (or unconcerned, as the case may be) Americans are about the NSA flap. As I explained, there’s perfectly valid and logical reasons not to be concerned about the NSA listening in on conversations to Aunt Sadie in Paris, which are not at all refuted by silly non-sequiters about 1938 Germany.
dcl,
“Who the hell knows who these people were wiretapping?”
People whose phone numbers show up on terrorist’s cell phones and laptops, that’s who.
“We are supposed to just trust them that they are using it fairly? Yeah right, I’m supposed to trust an administration that has constantly lied to the American people?”
No libertarian is more distrustful of the gov’t than I am, but a little more logic and a little less partisan bullsh*t is in order here. The number of warrantless wiretaps under discussion here is somewhere around 500, give or take a few depending on your sources. But let’s say for argument’s sake that’s a conservative estimate, and assume it’s really more like 20 times that, or 10,000. That means the int’l calls of a wopping .003% of the population have been monitored, and with good cause . . . hardly the Orwellian police state that’s being imagined by hyperventilating alarmists who think they’re “not that stupid,” and even less so with every one of those assumed 10,000 who are not really in the rolodexes of your typical cuddly jihadist.
January 20th, 2006 at 4:15:18 pm
Lojo, the problem is how do we KNOW this is not as bad as Nixon wiretapping political opponents… He could very well be doing just that.
And I wasn’t saying Bush would, I was saying a future hypothetical President could based on these precedents. Say if Hillary were to win in 08 or something.
Alasdair, I would never assail the credibility or logical cognitive abilities of A&A. Such action would be highly imprudent on my part.
January 20th, 2006 at 4:17:25 pm
Okay, if it was only 500 - 10,000 wiretaps in question, why didn’t they get warrants. It is not like it is hard under FISA?
January 20th, 2006 at 4:29:07 pm
dcl -
And as much as we don’t know if that is ALL he is doing it could equally be ALL he is doing. That scenario works both ways. But your not being cautious in stating:
“If what Nixon did was unconstitutional and illegal and impeachable than what Bush has done is the same”
Except both situations are analgous only in that wiretaps are involved.
And frankly, consider this whole program was leaked in the NY Times, don’t you think we would have heard about serious abuses by now? Realistically?
January 20th, 2006 at 4:42:18 pm
dcl -
From the Memo:
“Truong, 629 F.2d at 914; see id. at 913 (noting that ìthe needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would . . . unduly frustrate the President in carrying out his foreign affairs responsibilitiesî); cf. Haig v. Agee, 453 U.S. 280, 292 (1981) (ìMatters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.î).2″
“Thus, section 109 of FISA prohibits any person from intentionally ìengag[ing] . . . in electronic surveillance under color of law except as authorized by statute.î 50 U.S.C. ß 1809(a)(1) (emphasis added). Because FISAÃs prohibitory provision broadly exempts surveillance ìauthorized by statute,î the provision demonstrates that Congress did not attempt to regulate through FISA electronic surveillance authorized by Congress through a subsequent enactment.”
“A statute may not ìimpede the PresidentÃs ability to perform his constitutional duty,î Morrison v. Olson, 487 U.S. 654, 691 (1988) (emphasis added); see also id. at 696-97, particularly not the PresidentÃs most solemn constitutional obligationóthe defense of the Nation. See also In re Sealed Case, 310 F.3d at 742 (explaining that ìFISA could not encroach on the PresidentÃs constitutional powerî).”
Some sections to point out. Read the whole thing.
January 20th, 2006 at 4:46:40 pm
Just because a majority of ill-informed Americans believe something doesn’t make it legal or right
Priceless. When the polls justify your position then they’re good, otherwise it’s just uninformed Americans.
Morons like you guarantee the Republicans will be in power for quite some time.
January 20th, 2006 at 4:46:53 pm
You wrote: they’re not claiming that the Constitution by itself gives the president the authority to overrule the FISA statute; rather, they’re claiming that the Congress’s post-9/11 authorization to fight terrorism gives him that authority. That is a question of “comparing two statutes,” and thus my original point about specific vs. general comes into play.
I belive this misses the constitutional point, the President has constitutional war powers that are limited since congress has to declare the conflict, which the post 9/11 statute did. Thus Congress has invoked the President’s war powers authority under the Constitution for this conflict, overriding FISA limits on signals intelligence for the duration of this particular war.
January 20th, 2006 at 4:53:34 pm
Joe Mama-
I’m sure most Germans thought Hitler was right, too, in 1938.
I invoke Godwin’s law. And that statement effectively ends ANY credibility you might have had. You lose. DORK!
I must say though, you and dcl “BUSH LIED, BUSH LIED, WAAAAAHHHH” are quite amusing.
January 20th, 2006 at 4:54:02 pm
dcl: “Okay, if it was only 500 - 10,000 wiretaps in question, why didn’t they get warrants. It is not like it is hard under FISA?”
The process under FISA still requires lots of paperwork and up to four days. I believe the scenario under which warrentless intercepts happened went more like this:
- SOF capture a cell-phone or laptop with other international numbers of suspected terrorists
- we put those numbers into our magic box and when someone calls them we intercept
- in short order the bad guys figure out we got their numbers and they throw those phones away and buy new ones (i.e. we’re at square one)
- we sift through the intercepts to identify useful data, providing actionable intelligence to the guys in the field and domestic leads to the FBI for follow-up via FISA
Anybody who has ever been involved in collection or surveillance would tell you that dedicated watching of a target of interest takes at least a half dozen people per target if you want to even start to collect and analyze all that person’s activities and contacts. Unless someone want to bring up specific cases of civil rights violations or wrongful injury related to the program I can’t help it if I dismiss the vast majority of complaints as either libertarian utopia-pining or partisan Democrat gotcha.
January 20th, 2006 at 5:01:35 pm
Brendan -
To your response to Nigel, your incorrect in saying it is a statute to statute comparison. The powers the President has are constitutional, but can only be exercised if Congress enables them, which they did with the post-9/11 authorization.
Comparing statute to statute here is comparing FISA which limits a Presidents foreign intelligence gathering during peacetime and the post-9/11 authorization which effectively said we are no longer at peace with Al-Qaeda.
January 20th, 2006 at 5:37:00 pm
The reason the AUMF (authorization to utilize military force) may be relevant is because it makes clearer that we are at war. Arguably (and as assumed in asides by several federal courts) the President has constitutional authority as commander in chief to engage in intelligence gathering whenever he sees fit. More clearly, the President has such authority when the intel relates to war.
Since tha AUMF is relevant for this reason (i.e., it eliminates the debate about whether we are at war, or whether that matters) the fact that the AUMF is less specific than the FISA law does not matter, any more than it did that the AUMF is less specific than various laws about detention. As recently found by SCOTUS, taking prisoners (even if US citizens) is an inherent part of war-making; almost certainly, so is gathering intelligence.
January 20th, 2006 at 5:50:06 pm
One problem with the “Is it legal?” arguments is that the President, in his capacity as Commander in Chief, cannot be brought to trial for any crime committed in office until he leaves office. He can be Impeached and he can have his money cut off and we all saw how well that worked with the last officeholder.
In the end it comes down to Congress removing the President from office and absent a massive groundswell of public outrage that’s not going to happen, not even if the gavels change hands next January. House Majority Leader Pelosi could impeach Bush until she turned blue in the face: There aren’t going to be 67 Senators for removal over this and that’s that. Furthermore 90% of the “outrage” in Washington is just political posturing for the cameras. Insiders there know that if Bush wasn’t doing this he’d be in more danger from impeachment because it’d be their necks on the line if he let a terrorist threat slip through in result.
Polls that show Americans are unhappy with Bush are worthless. In the first place many recent polls have oversampled Democrat partisans and in the 2nd the only people *angry* with Bush over this are the same small minority still upset that he “stole Florida” in 2000. IE., they simply transfer their grievances over Election 2000 to the faux scandal de jour. They weren’t going to vote Republican anyway.
The vast majority will vote their pocketbooks and personal security. A President who wiretaps enemy agents in a time of war isn’t going to be punished: those few who want to punish him will be called traitors by some and idiots by the rest. Unless the economy goes seriously south this year or there’s a major al Qaeda attack that’s bungled by the Bush Administration I expect Democrats to be seriously punished themselves at the polls.
January 20th, 2006 at 5:53:34 pm
Uh-oh …
I can hear the next set of chants …
“Booosh Lied ! Cell-phones died !”
January 20th, 2006 at 6:25:15 pm
Brendan,
Interesting. I like broccoli, cauliflower I can live without. Does that mean there’s no hope of civilized discourse between us?
Seriously, I’m glad you pointed out the difference between the statutory question you were addressing in the original post and the constitutional one that some of the other commenters were confusing with it. I have another analogy for the constitutional question. It’s widely accepted that the president has the right to spy on foreign communications for national security purposes without a warrant. It’s also widely accepted that he doesn’t have the right to spy on US citizens for domestic purposes without a warrant. This case involves spying on calls between non-citizens in foreign countries communicating with citizen (and others) in this country. The avowed reason is national security. So, if you can’t eat broccoli without asking Mom first, but you can eat cauliflower any time you want, what’s the rule when someone produces a hybrid plant?
January 20th, 2006 at 7:13:10 pm
I just wanted to point out two things:
1) Lincoln blockaded Southern ports, suspended habeas corpus, and held American citizens without charges. If I remember correctly, Congress never gave him the power to do this. Nevertheless, the Supreme Court said that he had the authority.
2) Andrew Johnson was impeached over the Tenure of Office Act. Several decades later, the Supreme Court said that the Act itself was an unconstitutional infringement on Presidential power. (I.e., the Senate was one vote from removing a President for violating an unconstitutional law.)
January 20th, 2006 at 7:32:18 pm
I am not a lawyer, nor do I play one on tv,
Jazz, did you stay at a Holiday Inn Express last night?
Brendan, you express “extreme skepticism” that what Bush is doing is legal, and you cite your specific-trumps-the-general logic. Well, please point out to me the language in FISA that prohibits the president from intercepting communications between U.S. citizens and non-citizens who are actual, perceived, or potential threats. Given that you’re both a successful law school student and extremely blog savvy, you should also have no problem citing the same type of case law that has been discussed on scores of political blogs and online magazines to support your position.
Finally, I’d like to hear one good reason why any administration should not intercept communications between, say, bin Laden and an American citizen, or one good reason why this or any other administration should risk not learning the knowledge transmitted in that communication because it didn’t first retrieve a warrant from the FISA spy courts.
Intentionally turning our backs on this kind of useful administration while we are trying to seek out terrorists and prevent attacks seems to me the height of stupidity and foolishness.
January 20th, 2006 at 7:33:10 pm
*this kind of useful information, sorry
January 20th, 2006 at 8:30:17 pm
We survived state-sponsored piracy, two world wars, a civil war, a decades-long cold war, near nuclear annihilation, and the burning of the White House to the ground without sacrificing the Constitution. Let’s not start now.
Everybody, seriously: read the Constitution. You’ll know that besides war, we can also pass letters of reprisal and letters of marque. If Congress had passed one of those babies, any American soldier or civilian could pursue, capture, or kill any member of Al Qaeda. No worrying about declaring war on new countries when they cross borders. All Constitutionally. All without threatening our freedom. The Founding Fathers knew what they were doing, and they would have despised anyone who saw civil liberties as something to be thrown aside at a moment’s notice. Read some Ben Franklin while you’re at it.
January 20th, 2006 at 8:56:03 pm
Sean - Ben Franklin is especially enlightened with respect to widows …
Someone (or ones) will correct me if I’m wrong on this, but I seem to recall that most of the thingies about unwarranted search and seizure basically say that, if the evidence wasn’t obtained under Certain Guidelines (’The Constitution and Laws’), then the evidence thus obtained could not be used in a criminal prosecution …
I havta suspect that we don’t so much want to haul OBL into court to prosecute his sorry murderous fundament as, rather, we want to find it and fry it … or am I wrong in this ?
January 20th, 2006 at 10:15:50 pm
Brendan -
You bring up a good point of discussion being at what point does a congressional statute give the authority for a President to execute his war powers? Is it a declaration of war, or does the AUMF suffice.
That actually seems more of a congressional debate than a separate powers one. Not sure how to answer it. I need to go back and read exactl what the AUMF says. The NSA/DOJ memo make it sound explicit, but I’d rather read it with my own eyes.
January 20th, 2006 at 10:40:11 pm
montie-
As I recall, the South seceded from the United States, so I don’t believe it was technically part of the US when Lincoln blockaded the ports.
As for Lincoln suspending habeas corpus, my recollection is that the Supreme Court ruled during the Civil War that Lincoln couldn’t suspend it and Lincoln ignored the Supreme Court ruling. The Supreme Court, not the President, restored habeas corpus after the war.
Here’s a link if you decide to actually research something before going off half-cocked…
http://www.civil-liberties.com/pages/did_lincoln.htm
January 20th, 2006 at 10:43:01 pm
What you folks are all missing is the fact that the FBI followed thousands upon thousands of leads generated by the NSA. You know what? Didn’t find one terrorist. Just found innocent Americans or dead ends.
Legal or not, doesn’t this rise to the level of gross incompetence on behalf of the Executive Branch to waste personnel and resources like this for FOUR YEARS in the midst of a war on terror?
January 20th, 2006 at 10:48:52 pm
Lojo and Josh-
Good call on Godwin’s Law. I’m sure the next Hitler will rely on “useful idiots” like you to come to his defense.
January 20th, 2006 at 11:08:37 pm
Everyone. I did an image search in Google for Joe Mama and found this…
http://members.aol.com/papajoemom/papablair.jpg
Now you know what you are dealing with.
January 21st, 2006 at 12:02:11 am
I find the whole thing reminiscent of commerce clause jurisprudence. Congress can only regulate “interstate commerce”. But to effectively regulate that interstate commerce, it can do whatever is ‘necessary and proper’ to regulate it, which includes prohibiting someone from growing crops for use on his own farm, or growing medical marijuanah.
January 21st, 2006 at 8:01:51 am
Brendan
Reading the entry and not completely finished…
But I had to take issue with the part about your thinking the “growing political uproar” was emanating from the NY Times newsroom and not from the concerns of average Americans, assuming I did not misrepresent your views.
This poll came ot January 8th:
“A majority of Americans want the Bush administration to get court approval before eavesdropping on people inside the United States, even if the calls might involve suspected terrorists, an AP-Ipsos poll shows.”
http://www.newsobserver.com/114/story/386167.html
That’s a pretty clear contrast between what Bush wants and what the American people want. And these numbers may be changing over time, and, I think, if anything, they will be getting worse for the Bush Administration and not better. The Google story isn’t helping Bush at all.
January 21st, 2006 at 8:48:21 am
Above post was mine…
Just wanted to add this PEW Research poll:
Opposed to Government Snooping
http://people-press.org/reports/display.php3?ReportID=267
As has been the case since shortly after the 9/11 attacks, Americans overwhelmingly reject the idea of the government monitoring their phone calls, emails and credit card purchases. By about three-to-one (73%-24%) the public opposes allowing government surveillance of their personal phone calls and emails. This measure has changed very little since September 2001, just after the attacks, when 70% opposed government monitoring of private communications.
In the immediate aftermath of 9/11, Americans were somewhat more accepting of the government monitoring their credit card purchases, but this sentiment soon receded. Currently, 68% oppose allowing the government to scrutinize their credit card records, a slight increase from August 2002 (63%).
While the public overwhelmingly supports individual privacy in these areas, there is a willingness to see the government go further in other areas. Specifically, 56% favor requiring that all citizens carry a national identity card at all times, and about the same number favor allowing airport personnel to do extra checks on passengers who appear to be of Middle Eastern descent. On these issues, too, public views are unchanged from the summer of 2002.”
January 21st, 2006 at 8:51:08 am
Mad Max: Beyond Superdome,
I stand corrected about habeas corpus. The Supreme Court did not rule on that.
“I don’t believe it was technically part of the US when Lincoln blockaded the ports.”
Before going off half-cocked, that stands in sharp contrast with the Supreme Court’s actual ruling in the case. The Supreme Court said that the South was indeed part of the US. As commander-in-chief, Lincoln had the power to protect the US. They said the blockade was simply a exercise of those powers.
January 21st, 2006 at 8:53:46 am
Oops…I should have said, “I stand corrected about habeas corpus. The Supreme Court did not rule for Lincoln on that.”
January 21st, 2006 at 9:11:36 am
Montie-
Given your logic regarding the South, Lincoln didn’t have the right to send Sherman to burn down Atlanta, either.
January 21st, 2006 at 9:24:34 am
Conservatives like to boast about the free market and how it can solve EVERYTHING as long as there is no government regulation. Well, I’m glad the free market is coming into play on this whole privacy issue. The fact that Google has refused to turn over search records to the White House while AOL, MSN and Yahoo bent over and groaned thank you at the drop of the hat is going to be good for Google and bad for these other pricks. I, for one, will no longer use AOL, MSN and Yahoo, and I think a lot of other Americans feel the same way. Google’s ethical stand is indicative of the company and demonstrates why it is thriving while AOL is on the ropes, Yahoo’s revenues have hit the skids and MSN has just sucked all along. In fact, I believe this action is the beginning of the end for AOL and possibly even Yahoo.
Thank God for Google.
January 21st, 2006 at 10:07:23 am
wasn’t the google snooping about child pornography, not terrorism ? The child pornographers arrested and convicted in this country are tragically the tip of the tip of the tip of the iceberg. What are some alternatives for the government to facilitate keeping pace with this elusive and disgusting industry ?
January 21st, 2006 at 10:38:50 am
4-7-
First, the Department of Justice doesn’t want the information to go after kiddy pornographers. They supposedly want to information to figure out how many kids are accessing porn. Since when do kids, and not their parents, have an IP address? This whole thing strikes me as a bogus effort to spy on all Americans.
January 21st, 2006 at 12:48:45 pm
Yo Max,
Looks like your reasoning is a bit flawed. Google is not looking all that great either.
I’m guessing that Google’s refusal to cooperate has more to do with being belligerent rather than ethical standards (while that is what they insist). Google has had a reputation of having a slight bias (rightly so or not - don’t know).
January 21st, 2006 at 1:42:27 pm
Google stock is down because Henry Blodget started bad-mouthing it. If you will recall, this is the same guy who knowingly lied about the status of several dot-com companies during the tech bubble, so you have to question why anyone would take this guy’s advice in the first place. Google may be over-priced right now, but it is not going away.
As for the reputation for bias, it seems to be a big deal when Google has a bias but Republicans like yourself don’t seem to see a problem when Wal-Mart refuses to carry Jon Stewart’s book or Clear Channel drops the Dixie Chicks.
January 21st, 2006 at 9:43:55 pm
Max -
I think I can show better ability to spot the next Hitler than the yahoos and kunckle draggers calling or equating Bush with Hitler.
And yes, if your equating, no matter how long down the road or how lightly, the phonetapping of people contacting terrorists with Hitler’s gestapo, your an idiot.
Personally, I think the President of Iran fits that bill better than most any other alive right now, maybe? Of course, that is only with his rhetoric right now because we aren’t at actual warfare yet.
January 22nd, 2006 at 11:36:19 pm
So wait, let me get this straight: Google is now the paragon of virtue because it isn’t cooperating with the US DOJ, even though it is enabling the Chinese gov’t to monitor everything its citizens see and search for on the internet? Amusing, to say the least.
There is nothing invasive about what the government is asking for, here. They are not asking for, and are not receiving, information that is connected to IP addresses and individuals. It’s merely aggregate statistical information.
Would you also crap your pants if the government requested information from www.sigalert.com about weekly traffic patterns so it could assess where it might apply infrastructure improvements? It’s the exact same thing.