Memo to those who agree with today’s district court opinion overturning the Bush Administration’s NSA warrantless wiretapping program: don’t get your hopes up that it will survive on appeal. Over at the Volokh Conspiracy, where the commentators generally know what they’re talking about (and where, incidentally, there is a split of opinion regarding the substantive issue in this case), they’re generally quite unimpressed with the decision, on a purely legal/analytical level. I.e., right or wrong, it’s a poor opinion, unlikely to convince anyone that it should be upheld. Just click here and keep scrolling down; there are several informative posts in a row. (Hat tip: Joe Mama.)
Glenn Greenwald, a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters, likes the decision.
Here’s Glenn’s reader’s Digest analysis, which he expands in the above entries:
“I have read the opinion. Here is my immediate analysis of it. It is a very strong opinion in some places, weak in others, but is rather straightforward — and sometimes eloquent — in its almost always unequivocal rejection of the Bush administration’s arguments”
On the author: Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan & Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.
“”Regardless of what your position is on the merits of the issue, there’s no question that it’s a poorly reasoned decision,” said Bobby Chesney, a national security law specialist at Wake Forest University who takes a moderate stance on the legal debate over the NSA program. “The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in.”"
“The most important conclusions in the opinion (and the most controversial) are simply asserted, as if they are somehow self-evidently true. For instance, Judge Taylor, without any real analysis at all, states that the NSA program “obviously” violates the Fourth Amendment. She then relies on that assertion to avoid the question of whether FISA is constitution, and to some extent, the related question of whether the AUMF somehow supercedes FISA.”
“Although the court reaches the right result– that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments.”
“Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.”
And that is excluding Volokh’s site, which has been already stated, and stories from the right half of the blogosphere. (NRO post is from an official under Clinton as well).
Read that article yesterday and the claim is that FISA might have some grounds for legal argument; of course, that depends on what the word “electronic survaillance” means.
Oh, one more liberal who had some light criticism of the opinion:
“This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law.”
This is absolutely highlarious too as the argument against the NSA wiretapping boils down to the ends don’t justify the means. But the blogger who wrote this, declares a victory by having the end justify the means.
Heh. Good point, Lojo. The end apparently doesn’t justify the means when it comes to warrantless wiretapping of suspected terrorists trying to kill people, but the end DOES justify the means when it comes to poorly reasoned judicial decisions that yield the “correct” result :-)
In short, there is bi-partisan agreement that this is a Mickey Mouse opinion, regardless of where you fall in the question of the legality or constitutionality of the NSA program.
This opinion hurts both sides - it sidetracks those making the President’s case, and it will end up failing in higher courts because the opinion is bad, not on the merits - meaning that the challengers will get a short shrift.
Come on, there were probably some arguments that could have been made . . . why make it a botch job? It is only our national security and our civil rights at stake - at least make an effort!
I agree. Though I support the NSA program and do think it is constitutional, I also think a deep legal debate and national discussion is needed on the matter. This is a very serious issue and I want to get all the available facts I can so I am not regretting my support later.
But from this opinion, Judge Taylor displays an indifferent attitude to either her obligations as a jurist or the critical importance of this topic, and it follows, this case. Because if she took either seriously, she would have given a detailed analytical opinion.
(and for any knee-jerkers, note I didn’t say she had to rule it as constitutional to have been regarded as serious or right or logical)
Okay, so when the next president unilaterally bans guns by their inherent power as president in order to fight terrorism, you will be good with that too right?
Perhaps dcl, if there was any evidence (or logic, for that matter) whatsoever supporting the idea that banning guns would effectively fight terrorism. There isn’t, of course, just like there isn’t a chance in hell of banning guns in a country that has more guns than it does citizens (legal and illegal). It would be hard to come up with a sillier or more useless comparison than banning guns vs warrantless wiretapping of suspected terrorists making int’l calls to/from the U.S.
Good, so now, in order to not be a total raving hypocritical idiot you would have to agree that Bush is overreaching with his wantless wiretapping as that violates the 14th amendment. Either that or you Bush Derangement Syndrome, in which Bush can absolutely categorically do now wrong. You see, the whole comment was a trap, and very conveniently you fell right in.
I wouldn’t be patting myself on the back for that “trap” if I were you. You’re gonna have to explain to me which provision of the 14th Amendment is so clearly violated by the NSA’s warrantless wiretapping, professor.
I think someone might be posting silly comments using your handle, dcl . . .
Do you mean the 4th amendment or the 14th amendment??
On the 4th amendment, FISA court already ruled in Falvey:
“When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.�
That’s a far cry from being able to ban all gun ownership in the US.
Furthermore, the intelligence collected cannot be used against any citizen of the US in any type of legal manner unless a warrant is obtained (4th Amendment Protection there). That would be the collecting DOMESTIC intelligence if that was the purpose, thus requiring the warrant. That is why the program used for the purpose of collecting FOREIGN intelligence.
Balh, brain broke for a second, damn fridays… Meant fourth amendment… Which absolutely applies in this case and which Bush is taking a wiz on… Unless you think the second amendment should only apply to flint locks?
Read my comment. The courts have ruled that warrantless wiretapping are legal. The whole basis of the plantiff’s case is that, “No it isn’t! Its domestic surveillance.”
Step back for a second and consider this, the fourth amendment is there to protect the privacy and freedoms of its citizens.
Well, when a citizen starts dialing outside the US, their presumption of privacy goes out the window. This is not a right-wing sentiment or an administration policy, its established law. As for freedoms, what freedoms are being abridged? Can you still call outside the US? Yup, no problem there. Where is the loss of freedom?
Does this program put a citizen at greater risk of legal action from the government? No, because NONE of the intelligence gathered in this program can be used in a court of law against a citizen, unless the proper warrant was recieved?
Freedoms limited? No. Privacy limits broken? No. Legal action or use of intelligence against a citizen? Still illegal.
Now again, as I said to B., this really needs to be discussed in the context of the judiciary, and I hope this will spur Congress to get off their fat hairy asses and update these surveillance laws, but given the rulings made by the SC and FISA court, I don’t consider it unconstitutional.
Obviously people disagree, but that’s why I am so ticked off at Judge Taylor. Given an opportunity to really provide a thorough legal analysis on why the program is unconstitutional (so I could test my opinions on the matter and my position), all we get is, “Its illegal, well, BECAUSE!!”
Wow, you Republicans are stupider than I thought… okay let me walk you through this.
There are those that argue the President can spy on American Citizens without a warrant and simply because he feels like it.
This is an unconstitutional act.
Such an act is analogous to a President deciding they were going to unilaterally ban guns because he felt like it.
Republicans have an automatic gut negative reaction to anything that threatens their guns and would see this as an obvious affront to their constitutional rights–which it is, probably, nothing has every actually been argued based on the 2nd amendment.
However, here is the key, if one accepts the wire taps are legal one must also accept the gun ban is legal. If one accepts the gun bans are illegal then one must accept the wire tapping is illegal.
One of your compatriots decided that the illegal wiretapping should be legal but that banning guns should not be. This is an inherently self contradictory position. The only reason someone could hold this position is from BDS, in which Bush couldn’t possibly do anything wrong. And or that they are a hypocrite that likes to pick and choose which amendments they’d like to follow.
I suggest remedial logic for all Republicans, I really should not have to spell this out for you.
“There are those that argue the President can spy on American Citizens without a warrant and simply because he feels like it.”
*bzzzzzz*
Wrong.
Herein lies the disconnect between the positions. First off, the intelligence is being collected on FOREIGN agents. Not American Citizens. That is why only international calls are being monitored. The targets are not american citizens, but (to quoth Python) foreigners living abroad.
If this intelligence is going to be used against a US citizen, they NEED a warrant. That is absolutely true. So please tell me how you get intelligence gathering from international calls without warrants is akin to allowing all guns in the US to be taken from gun owners?
Hell, let’s get into true detail in that analogy.
From my view, the analogy is that I would be banned from getting any gun from overseas or from sending any gun overseas, regardless of the purpose. THAT is the comparable.
But let’s look at it from your standpoint. If you say its comparable to Bush deciding all guns need to be banned to prevent terrorist acts, the NSA program is really: An intelligence gathering program that covers every phone call, domestic or internationally, and all of the information can be used legally against a US citizen without a warrant.
“One of your compatriots decided that the illegal wiretapping should be legal but that banning guns should not be. This is an inherently self contradictory position.”
More than that, it’s just stupid and NOT what anyone here said, dcl. No one is saying illegal wiretapping should be legal, at least not that I can see (THAT would be self-contradictory, and silly). I’d pick a few nits w/ Lojo’s statements, but speaking for myself here, I’ve argued (or at least posted arguments of others) that the wiretapping you (and David on another thread) are so absolutely certain is illegal may in fact be LEGAL and not violative of the 4th Amendment. I can understand why someone who is unfamiliar with the interplay of 4th Amendment and separation of powers case law (as I myself still am) might think that warrantless wiretapping by the NSA is self-evidently unconstitutional, but that’s why there’s a whole separate graduate degree and curriculum for those who study law.
Furthermore, “banning guns” as you so generally put it, at least on its face, appears to be much more clearly violative of the 2nd Amendment.
There’s nothing contradictory between those two positions, dcl. Of course, I don’t expect this to stop you from venting your rage against all things Republican :-)
Well, when a citizen starts dialing outside the US, their presumption of privacy goes out the window.
Actually according to the FISA law it is illegal for the U.S. to conduct electronic surveillance when there is a reasonable presumption that ONE of the parties is a citizen in the U.S.
50 USC section 1802 defines when the President may authorize electronic surveilance without a warrant.
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > 1802
1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court
(a) (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that�
(A) the electronic surveillance is solely directed at�
(i) 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; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
Please refer to the part in bold, the one which EXPLICITLY states that electronic surveilance is prohibited when there is a substantial likelihood that a U.S. citizen is a party too.
Other parts of the law outline when the President may authorize electronic surveilance of U.S. citizens WITH a warrant.
Now, if there is some other law that exists that has since superseeded this (although then one would assume that it would no longer by part of the U.S. code, fine so be it. Or if someone can come up with another argument which explains how this clear and simply worded phrase means something other than what it pretty much clearly appears to mean, thats also fine.
But if the only argument is the one that Joe Mama and company put forth, that its a tool against terrorism, regardless of whether or not its illegal, then don’t bother.
My answer was to Greenwald’s post, not yours. But I love how you are feigning neutrality (R-ight) now. That was a quick retreat. That wouldn’t be because I so thoroughly trashed the idea that this opinion had any merit past the obviously partisan one.
Boo hoo, anonymous is not only a coward he/she can’t come up with any argument.
Again, it seems that the above law is pretty clear, but as I said in the post i am more than willing to be shown how the situation is not clear. Unlike anonymous and his ilk, i am willing to participate in a civil discussion of the topic at hand.
That’s right, your repeated linkings to Glenn Greenwald are just traps. That’s just comical. You just linked to him because you thought he was wrong, huh? Give it up.
“Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday. . . . Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.”
August 18th, 2006 at 6:51:35 am
Glenn Greenwald, a litigator in NYC specializing in First Amendment challenges, civil rights cases, and corporate and securities fraud matters, likes the decision.
See his post on his blog here: http://glenngreenwald.blogspot.com/2006/08/federal-court-finds-warrantless.html
And his article in Salon here: http://salon.com/opinion/feature/2006/08/17/nsa_michigan/index_np.html
August 18th, 2006 at 6:54:46 am
Here’s Glenn’s reader’s Digest analysis, which he expands in the above entries:
“I have read the opinion. Here is my immediate analysis of it. It is a very strong opinion in some places, weak in others, but is rather straightforward — and sometimes eloquent — in its almost always unequivocal rejection of the Bush administration’s arguments”
August 18th, 2006 at 7:18:41 am
Nun -
http://article.nationalreview.com/?q=OWVlOGNiZmIyMmZkYTg2OGFiYzM3ZGU4Nzc0MjFjNzQ=
On the author: Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan & Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081700650.html
“”Regardless of what your position is on the merits of the issue, there’s no question that it’s a poorly reasoned decision,” said Bobby Chesney, a national security law specialist at Wake Forest University who takes a moderate stance on the legal debate over the NSA program. “The opinion kind of reads like an outline of possible grounds to strike down the program, without analysis to fill it in.”"
http://www.anonymousliberal.com/2006/08/missing-mark.html
“The most important conclusions in the opinion (and the most controversial) are simply asserted, as if they are somehow self-evidently true. For instance, Judge Taylor, without any real analysis at all, states that the NSA program “obviously” violates the Fourth Amendment. She then relies on that assertion to avoid the question of whether FISA is constitution, and to some extent, the related question of whether the AUMF somehow supercedes FISA.”
http://balkin.blogspot.com/2006/08/federal-court-strikes-down-nsa.html
“Although the court reaches the right result– that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments.”
http://www.washingtonpost.com/wp-dyn/content/article/2006/08/17/AR2006081701540.html
“Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.”
And that is excluding Volokh’s site, which has been already stated, and stories from the right half of the blogosphere. (NRO post is from an official under Clinton as well).
But at least you have Sock Puppet on your side.
August 18th, 2006 at 7:22:57 am
Read that article yesterday and the claim is that FISA might have some grounds for legal argument; of course, that depends on what the word “electronic survaillance” means.
August 18th, 2006 at 7:24:33 am
Nun -
Oh, one more liberal who had some light criticism of the opinion:
“This is not the most scholarly opinion ever. It has argumentative holes in it in several important places. But it is correct in its result and it is an enormous victory for the rule of law.”
This is absolutely highlarious too as the argument against the NSA wiretapping boils down to the ends don’t justify the means. But the blogger who wrote this, declares a victory by having the end justify the means.
August 18th, 2006 at 8:13:40 am
Heh. Good point, Lojo. The end apparently doesn’t justify the means when it comes to warrantless wiretapping of suspected terrorists trying to kill people, but the end DOES justify the means when it comes to poorly reasoned judicial decisions that yield the “correct” result :-)
August 18th, 2006 at 8:19:15 am
In short, there is bi-partisan agreement that this is a Mickey Mouse opinion, regardless of where you fall in the question of the legality or constitutionality of the NSA program.
August 18th, 2006 at 10:33:32 am
This opinion hurts both sides - it sidetracks those making the President’s case, and it will end up failing in higher courts because the opinion is bad, not on the merits - meaning that the challengers will get a short shrift.
Come on, there were probably some arguments that could have been made . . . why make it a botch job? It is only our national security and our civil rights at stake - at least make an effort!
August 18th, 2006 at 10:57:26 am
B. Minich -
I agree. Though I support the NSA program and do think it is constitutional, I also think a deep legal debate and national discussion is needed on the matter. This is a very serious issue and I want to get all the available facts I can so I am not regretting my support later.
But from this opinion, Judge Taylor displays an indifferent attitude to either her obligations as a jurist or the critical importance of this topic, and it follows, this case. Because if she took either seriously, she would have given a detailed analytical opinion.
(and for any knee-jerkers, note I didn’t say she had to rule it as constitutional to have been regarded as serious or right or logical)
August 18th, 2006 at 12:31:24 pm
Okay, so when the next president unilaterally bans guns by their inherent power as president in order to fight terrorism, you will be good with that too right?
August 18th, 2006 at 12:54:07 pm
dcl -
No, because that violates the Second Amendment.
August 18th, 2006 at 12:55:56 pm
Perhaps dcl, if there was any evidence (or logic, for that matter) whatsoever supporting the idea that banning guns would effectively fight terrorism. There isn’t, of course, just like there isn’t a chance in hell of banning guns in a country that has more guns than it does citizens (legal and illegal). It would be hard to come up with a sillier or more useless comparison than banning guns vs warrantless wiretapping of suspected terrorists making int’l calls to/from the U.S.
August 18th, 2006 at 1:05:31 pm
Wow… after reading this I have only one true enlightment: Lojo is a total and complete moron who either can’t read, has an IQ of 10, or is trolling.
August 18th, 2006 at 1:21:13 pm
Good, so now, in order to not be a total raving hypocritical idiot you would have to agree that Bush is overreaching with his wantless wiretapping as that violates the 14th amendment. Either that or you Bush Derangement Syndrome, in which Bush can absolutely categorically do now wrong. You see, the whole comment was a trap, and very conveniently you fell right in.
August 18th, 2006 at 1:36:59 pm
I wouldn’t be patting myself on the back for that “trap” if I were you. You’re gonna have to explain to me which provision of the 14th Amendment is so clearly violated by the NSA’s warrantless wiretapping, professor.
I think someone might be posting silly comments using your handle, dcl . . .
August 18th, 2006 at 1:41:02 pm
John -
Why’s that? Because I can provide links, backup my arguments, and attempt to argue details and positions?
But wait, I though morons retreated to invenctive and vitriolic attacks.
Ooops.
August 18th, 2006 at 1:47:57 pm
dcl -
Do you mean the 4th amendment or the 14th amendment??
On the 4th amendment, FISA court already ruled in Falvey:
“When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.�
That’s a far cry from being able to ban all gun ownership in the US.
Furthermore, the intelligence collected cannot be used against any citizen of the US in any type of legal manner unless a warrant is obtained (4th Amendment Protection there). That would be the collecting DOMESTIC intelligence if that was the purpose, thus requiring the warrant. That is why the program used for the purpose of collecting FOREIGN intelligence.
August 18th, 2006 at 1:48:47 pm
Balh, brain broke for a second, damn fridays… Meant fourth amendment… Which absolutely applies in this case and which Bush is taking a wiz on… Unless you think the second amendment should only apply to flint locks?
August 18th, 2006 at 1:57:43 pm
dcl -
Read my comment. The courts have ruled that warrantless wiretapping are legal. The whole basis of the plantiff’s case is that, “No it isn’t! Its domestic surveillance.”
Step back for a second and consider this, the fourth amendment is there to protect the privacy and freedoms of its citizens.
Well, when a citizen starts dialing outside the US, their presumption of privacy goes out the window. This is not a right-wing sentiment or an administration policy, its established law. As for freedoms, what freedoms are being abridged? Can you still call outside the US? Yup, no problem there. Where is the loss of freedom?
Does this program put a citizen at greater risk of legal action from the government? No, because NONE of the intelligence gathered in this program can be used in a court of law against a citizen, unless the proper warrant was recieved?
Freedoms limited? No. Privacy limits broken? No. Legal action or use of intelligence against a citizen? Still illegal.
Now again, as I said to B., this really needs to be discussed in the context of the judiciary, and I hope this will spur Congress to get off their fat hairy asses and update these surveillance laws, but given the rulings made by the SC and FISA court, I don’t consider it unconstitutional.
Obviously people disagree, but that’s why I am so ticked off at Judge Taylor. Given an opportunity to really provide a thorough legal analysis on why the program is unconstitutional (so I could test my opinions on the matter and my position), all we get is, “Its illegal, well, BECAUSE!!”
August 18th, 2006 at 2:00:36 pm
Wow, you Republicans are stupider than I thought… okay let me walk you through this.
There are those that argue the President can spy on American Citizens without a warrant and simply because he feels like it.
This is an unconstitutional act.
Such an act is analogous to a President deciding they were going to unilaterally ban guns because he felt like it.
Republicans have an automatic gut negative reaction to anything that threatens their guns and would see this as an obvious affront to their constitutional rights–which it is, probably, nothing has every actually been argued based on the 2nd amendment.
However, here is the key, if one accepts the wire taps are legal one must also accept the gun ban is legal. If one accepts the gun bans are illegal then one must accept the wire tapping is illegal.
One of your compatriots decided that the illegal wiretapping should be legal but that banning guns should not be. This is an inherently self contradictory position. The only reason someone could hold this position is from BDS, in which Bush couldn’t possibly do anything wrong. And or that they are a hypocrite that likes to pick and choose which amendments they’d like to follow.
I suggest remedial logic for all Republicans, I really should not have to spell this out for you.
August 18th, 2006 at 2:17:39 pm
Dane, your opinion of your own expertise on this subject far outstrips the reality thereof. That is all.
August 18th, 2006 at 2:21:01 pm
dcl -
“There are those that argue the President can spy on American Citizens without a warrant and simply because he feels like it.”
*bzzzzzz*
Wrong.
Herein lies the disconnect between the positions. First off, the intelligence is being collected on FOREIGN agents. Not American Citizens. That is why only international calls are being monitored. The targets are not american citizens, but (to quoth Python) foreigners living abroad.
If this intelligence is going to be used against a US citizen, they NEED a warrant. That is absolutely true. So please tell me how you get intelligence gathering from international calls without warrants is akin to allowing all guns in the US to be taken from gun owners?
Hell, let’s get into true detail in that analogy.
From my view, the analogy is that I would be banned from getting any gun from overseas or from sending any gun overseas, regardless of the purpose. THAT is the comparable.
But let’s look at it from your standpoint. If you say its comparable to Bush deciding all guns need to be banned to prevent terrorist acts, the NSA program is really: An intelligence gathering program that covers every phone call, domestic or internationally, and all of the information can be used legally against a US citizen without a warrant.
That is not what this program is doing.
August 18th, 2006 at 3:32:10 pm
To put things in perspective …
Brendan’s opinion @ 217 PM was succinct …
dcl’s opinion @ 2:00 PM was sucky …
Both descriptions start with “suc” - and that’s about all they have in common, like the accuracy of the opinions described …
August 18th, 2006 at 4:36:19 pm
“One of your compatriots decided that the illegal wiretapping should be legal but that banning guns should not be. This is an inherently self contradictory position.”
More than that, it’s just stupid and NOT what anyone here said, dcl. No one is saying illegal wiretapping should be legal, at least not that I can see (THAT would be self-contradictory, and silly). I’d pick a few nits w/ Lojo’s statements, but speaking for myself here, I’ve argued (or at least posted arguments of others) that the wiretapping you (and David on another thread) are so absolutely certain is illegal may in fact be LEGAL and not violative of the 4th Amendment. I can understand why someone who is unfamiliar with the interplay of 4th Amendment and separation of powers case law (as I myself still am) might think that warrantless wiretapping by the NSA is self-evidently unconstitutional, but that’s why there’s a whole separate graduate degree and curriculum for those who study law.
Furthermore, “banning guns” as you so generally put it, at least on its face, appears to be much more clearly violative of the 2nd Amendment.
There’s nothing contradictory between those two positions, dcl. Of course, I don’t expect this to stop you from venting your rage against all things Republican :-)
August 18th, 2006 at 10:22:37 pm
Well, when a citizen starts dialing outside the US, their presumption of privacy goes out the window.
Actually according to the FISA law it is illegal for the U.S. to conduct electronic surveillance when there is a reasonable presumption that ONE of the parties is a citizen in the U.S.
50 USC section 1802 defines when the President may authorize electronic surveilance without a warrant.
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > 1802
1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court
(a) (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that�
(A) the electronic surveillance is solely directed at�
(i) 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; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.
Please refer to the part in bold, the one which EXPLICITLY states that electronic surveilance is prohibited when there is a substantial likelihood that a U.S. citizen is a party too.
Other parts of the law outline when the President may authorize electronic surveilance of U.S. citizens WITH a warrant.
Now, if there is some other law that exists that has since superseeded this (although then one would assume that it would no longer by part of the U.S. code, fine so be it. Or if someone can come up with another argument which explains how this clear and simply worded phrase means something other than what it pretty much clearly appears to mean, thats also fine.
But if the only argument is the one that Joe Mama and company put forth, that its a tool against terrorism, regardless of whether or not its illegal, then don’t bother.
August 19th, 2006 at 7:20:30 am
Lojo,
You’re generally pretty nice but every once in a while, such as this time, you let your total ignorance go flaming about.
I never stated any position on the ruling now did I?
I haven’t even read it or done enough research to feel competent or mildly informed enough to comment.
Oh but you’re a mind reader of the first order and you just know how “those liberals” think.
So I give you permission to carry on the discussion by yourself.
Seems to happen a fair amount on this blog anyway….
August 19th, 2006 at 7:22:17 am
P.S. Lojo, you officially too the bait. How does that hook feel?
August 19th, 2006 at 7:45:33 am
Nun -
My answer was to Greenwald’s post, not yours. But I love how you are feigning neutrality (R-ight) now. That was a quick retreat. That wouldn’t be because I so thoroughly trashed the idea that this opinion had any merit past the obviously partisan one.
“straightforward”? “eloquent”? Please.
August 19th, 2006 at 8:28:03 am
Lojo,
My posting had it’s intended effect on at least one person and that would be you.
So stop slobbering on your keyboard.
August 19th, 2006 at 10:13:25 am
Oh God, lookout . . . David is waxing legal again. Get out your hip boots!
August 19th, 2006 at 11:27:59 am
Boo hoo, anonymous is not only a coward he/she can’t come up with any argument.
Again, it seems that the above law is pretty clear, but as I said in the post i am more than willing to be shown how the situation is not clear. Unlike anonymous and his ilk, i am willing to participate in a civil discussion of the topic at hand.
August 19th, 2006 at 11:44:51 am
David, if you really would like to be shown how the law in this area which you think is clear is anything but, read the following analysis:
http://volokh.com/posts/1135029722.shtml
August 19th, 2006 at 2:22:02 pm
Nun -
That’s right, your repeated linkings to Glenn Greenwald are just traps. That’s just comical. You just linked to him because you thought he was wrong, huh? Give it up.
August 19th, 2006 at 3:55:41 pm
“Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday. . . . Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.”
http://www.nytimes.com/2006/08/19/washington/19ruling.html?_r=1&hp&ex=1155960000&en=359d009508f66aa4&ei=5094&partner=homepage&oref=login
(Hat tip: Instapundit)
August 19th, 2006 at 11:26:20 pm
Now, Joe Mama, how *dare* you quote a biased rabid right-wing rag like the New York Times !
August 21st, 2006 at 1:00:57 pm
No Lojo, you’re inconsistent and clearly your opinion of your own expertise on this subject far outstrips the reality thereof. That is all.