99 Comments

1. Godzilla:

Well, this is another one of the reasons why I like this blog. Your stances criss cross back and forth like one of those string contraptions that go back and forth between the fingers of both hands, and that means that you are thinking for yourself. That is getting to be a rare practice. It’s obvious that you have empathy, a much needed quality.

What I would like to see is people just think for themselves. There’s already a label for it - personal integrity.

What I do is simplify the issue, put it into my own house, so to speak, look at it from both sides, and then decide. With some issues you can do that, such as the death penalty, Israel’s proper response to the suicide bombings. I try to stay away from abstractions, and concretize the issues, putting them right in my face.

People need to do this, they really do. Hell, I enjoy thinking for myself. I’m sure others would too.

And reasoned discourse will win over vitriol every time. Personal attacks will only reduce readership to the lowest common denominator. I perfer a bell curve, and I want to be on the top of it, and that’s where this blog is, as far as I’m concerned.

There’s other good blogs out there too. What I like here is the variety of topics, the lack of singlemindedness.

A little off topic, I suppose.

Apr 28, 2006 - 9:55 am 2. dclydew:

I’ve found labels to almost always cause more trouble than value. Labels seem, not only to affect the observer (Sure they said that, they’re a moonbat!) but they also seem to affect the person being labeled, sinc the natural human tendency in social situations seems to be conformity.

One of my favorite screeds against labeling can be found here: http://www.rawilson.com/whistlepiss.shtml

Apr 28, 2006 - 9:56 am 3. triticale:

I like to identify myself as a member of the stoner wing of the Vast Right Wing Conspiracy mostly in hopes of triggering cognative dissonance.

Apr 28, 2006 - 10:45 am 4. Old Dad:

Roger,

As a practical matter, most of us are political hybrids, however, we self identify. Hence, there’s very little monolithic behavior, even within fairly tightly defined segments within parties–Evangelical Christians, as an example.

That’s why I think it’s a mistake to market politicians like products. Sure a certain amount of polling and segmentation data can help, but the truly great ones have something else working for them.

Take one of the greatest–Ronald Reagan. It takes incredible political skill to manage labels as he did. We all remeber what he did to “liberals,” but he did it without alienating many in the middle who identified as left of center, unlike virtually all the major players today who merely polarize the electorate.

Bill Clinton had similar skills, but, in my opinion, pales in comparison. Reagan crafted a reasonably coherent package of values and policies that could and did cross party lines. The south today votes mostly red because of Ronald Reagan.

A contra example. Howard Dean. He thought he could win the bubba vote by quoting Scripture and pasting a confederate flag sticker on his Volvo. They weren’t people to him, just tendencies. That’s the political danger in labels.

Apr 28, 2006 - 11:01 am 5. markus:

The thing is, Roger, disclosure of one’s political viewpoint involves more than just a listing of where one comes down on this or that particular issue. It also involves how you express your gut feelings about the partisans on both sides and their representatives in government, politics and the media conduct themselves as they debate each other and seek to gain the upper hand. And the general feeling I get, not always, but more often than not, is that while you disagree with a lot of things that Republicans and conservatives say, you’re more willing to give them the benefit of the doubt, rather than questioning their motives or intelligence.

When you post something critical of someone or something commonly construed as being “conservative”, it is usually framed along lines like “I’m pretty sure this person is incorrect or offbase in this instance.” When you post something critical of liberals, or leftists, or the Democratic Party, it is often contexualized along the lines of “look at what this nauseauting ignoramous has said.”

A good example of this, as I recall, would be the contrast between the way you handled the Bill Frist attempt to demogogue the Terri Schiavo case, and the way you handled Ted Kennedy’s attempt to demogogue the Alito nomination. In the former, Frist was misguided and politically tone deaf. In the latter, Teddy reminded you of Mary Jo Kopechne.

Apr 28, 2006 - 12:35 pm 6. Mona:

Roger, I think it is great to see civil discussions going on in the polarized blogosphere, and appreciate your engaging Glenn Greenwald. Speaking of generalizations and hybrids, I was amused to see Byron York today describe Greenwald as a “left-wing” blogger, in light of what I know his book actually argues, and also in light of some of the positions Greenwald has taken at his blog. (I’m with you and Bush on immigration, Greenwald less so, and he is also a gun nut. I support the NRA position, basically, but cannot work up enthusiasm for firearms.)

Anyway, you write this: War on Terror - as everyone knows, I favor (in part because it seems in harmony with my views above- confusing, huh?)

Very few people do not support the war on terror, if by that one means aggressively routing out jihadists who want to blow people up, lob nerve gas in the subways & etc. But from that it does not follow that : (a) Iraq was a just war (in the abstract I think it was morally justified, but not a necessary component of a general “war on terror”), or (b) whether George Bush and his neoconservative advisors were competent to execute it. Nor does it mean one must embrace Bush’s legal theories of untrammeled Executive power whereby he claims he is allowed to ignore and flout any act of Congress that touches and concerns national security.

I’ve disagreed with Greewald when he has rhetorically over-reached with, say, accusations that Bush supporters are members of a “cult.” He doesn’t seem to be using that meme much any more, and I think that is a good thing. It is more a matter, in my opinion, that those whose views on the war on terror overrode everything else, and caused them to support Bush regardless of all other disagreements, are finding it hard to admit they were wrong about the man’s abilities and judgment. It isn’t cult behavior, it is a simple matter of digging in, something most of us are prone to on many levels, and it cuts across the ideological spectrum.

It has bothered me to see so many Bush-supporting bloggers dismissing all on the left (or with caveats that reduce to not much of a caveat at all) and all Democrats in Coulteresque terms as traitors, treasonous, soft on terror & etc. I note one commenter here thinks Howard Dean is some sort of poseur. Well, he has that perfect NRA rating thing going on, and he was a fiscally conservative governor. He thought Bush’s plans for Iraq were woefully misguided and poorly planned, and he does seem to have been right about that. But he is not a pacifist at all, and there is no reason to think a Democrat like Dean could not defend the nation. I’m just sick of the demonization, and really would like to see a less inflamed discussion of what our national interests are, and who is capable of defending them.

I’ve never been a member of either political party, and as a libertarian have disagreed with both about much. But it is toxic to the national conversation for right-wing blogs and pundits to be promoting this view that all Democrats are against our vital interests. That is a truly harmful, pernicious and false generalization.

Apr 28, 2006 - 12:48 pm 7. Keith_Indy:

If people would stick to explaining where they are on the issues, and stop trying to explain where the other guy stands, we’d all be much better off.

A proper political test would be much like a personality test. Most people would have tendencies which conflict with the stereo-types attached to labels.

I say let’s pan political parties all together. Every candidate should represent themselves, and stand for what they believe. Of course, part of being a representative of a people is putting aside your personal beliefs to vote the way the people want you to vote, or to serve a greater good.

But, the way it is, most politicians serve themselves, then their Party, and then the country.

What’s interesting to me is all the navel gazing that’s going on lately.

A couple of interesting entries I’ve found about this subject.

http://www.spot-on.com/archives/000359.html

http://www.cbsnews.com/stories/2006/04/26/opinion/meyer/main1546871.shtml

http://www.foxnews.com/story/0,2933,193080,00.html

Apr 28, 2006 - 12:49 pm 8. Keith_Indy:

Mona - it isn’t all Democrats that are being demonized. It’s the Democratic Party. Acting as a group, they’ve had a decidedly different view on how to defend our national security and national interests. A view which many people think has actually done more to harm our national security. Of course, the reasoned discourse isn’t what gets air play, it’s the 15 second sound-bite that gets aired. So, you have Michael Moore sitting next to Carter during the convention, and where was Ann Coulter? It’s all relative.

Now, individual people have certainly been singled out for acts which go beyond the pale. Congressmen meeting with or verbally supporting the enemy, for instance.

Apr 28, 2006 - 12:56 pm 9. Mona:

Keith writes: It’s the Democratic Party. Acting as a group, they’ve had a decidedly different view on how to defend our national security and national interests

What does that mean? Democrats are not monolithic on a variety of issues, including national security. To my knowledge, not one Democrat in Congress opposed the Afghanistan war. To my knowledge, not one Democrat wants to suspend NSA surveillance of terrorist suspects, even if some (and some Republicans such as Specter, Brownback and Graham) insist that should be done legally, in compliance with the Foreign Intelligence Surveillance Act.

So what is this “decidedly different” view the Democrats have?

(And about Carter inviting Michael Moore to sit with him at the Dem Convention, that was sheer idiocy and the DNC should have forbidden it. But Moore isn’t a Democrat, and Carter is a buffoon not representative of all Democrats.)

Apr 28, 2006 - 1:25 pm 10. Terrye:

I noted recently that the internet is the only place I know of where I can be called a fascist and a leftist on the same day on the same issue.

I consider myself a hybrid too I suppose. I also consider myself to be a person who is more interested in solutions than in ideology.

In some ways the blogosphere is like high school, and I don’t mean that in a good way. Cheap shots, deliberate and sneaky attacks, back stabbing, hystrionics and lies, lies and more lies. People think they are invisible and so they can say and do anything.

I think the debate {snort} about immigration reform and Dubai port deal have become great examples of the blogs and demagoguery. Definitely more heat than light here.

I suppose I am disappointed in many ways, I expected better from people.

Apr 28, 2006 - 1:26 pm 11. Godzilla:

“Individuals themselves are complex and can act with conflicting motives. The most vicious and amoral tyrant can engage in a periodic act of kindness and generosity. Highly dishonest people can have moments of unusual candor, while the most magnanimous and selfless person can engage in isolated acts of cruelty and deceit. But most individuals, like most groups, end up with attributes which predominate, and it is entirely legitimate — and necessary — to talk about those attributes even if there are deviations and exceptions.”

Glenn’s feet touch the earth for just a moment here, and then he floats away again on his group-think helium balloon.

Apr 28, 2006 - 1:32 pm 12. Mona:

Glenn’s feet touch the earth for just a moment here, and then he floats away again on his group-think helium balloon.

Oh really? Keith in this thread wrote: ” It’s the Democratic Party. Acting as a group, they’ve had a decidedly different view on how to defend our national security and national interests.”

Now, that is quite the generalization about a group, exactly the sort that Greenwald is saying can be justified, if made in good faith and with evidentiary support. In fact, almost everyone engages in such generalizations, and it is almost impossible to discuss politics without doing so. The issue in any particualr case is whether the generalization is valid and can be supported.

Apr 28, 2006 - 2:00 pm 13. Godzilla:

Mona, it is the individual issues that need to be discussed. Trying to deduce the psychology of a group, from without the group, is also inherently biased, naturally, because the person’s viewpoint is based on the dogma of some other group.

It is my observation that many people, OF ALL GROUPS, are, politically, filled with floating abstraction. If one were to stick a pin into them, the would pop into thin air.

This applies to all political groups.

Apr 28, 2006 - 2:26 pm 14. Godzilla:

And BTW, Mona, that paragraph of Glenn’s that I linked to was not out of derision. It was the gem of his entire article, the key point, crystalized with clarity, and then left, abandoned.

Apr 28, 2006 - 2:38 pm 15. zefal:

Agnostic
pro-choice first & second trimester
pro-unborn baby rights third trimester
eliminate recognition of all marriages

No to national healthcare system

There was a private company that handled the student loans(pell grants) and made a 10% profit doing it.

The Clinton’s come in to office and say why not have the government administer the loans and use the 10% profit the private company makes to make the loans cheaper.

Well the democrat control congress says great!!!

well even before one year with the government in control of administering the loans they not only were’nt providing them for cheaper but had to borrow money from the US Treasury to keep them as cheap as the private company was. Do you think they said well lets bring back the private management to administer them? If you answered a big F’ing NO to that you are right.

Not even when the Republicans took control of Congress and now have a Republican president has that changed.

Do you think when peter jennings found out he had cancer jumped for joy about still having his canadian citizenship and his “free” canadian healthcare and got on the first plane to canada?

The government can take over my healthcare when they pull it from my cold dying left hand. My right hand has my gun in it, btw.

Apr 28, 2006 - 3:27 pm 16. zefal:

clinton’s=clintons

Apr 28, 2006 - 3:28 pm 17. Bostonian:

Mona: “But it is toxic to the national conversation for right-wing blogs and pundits to be promoting this view that all Democrats are against our vital interests. That is a truly harmful, pernicious and false generalization.”

Democrats *think* they are in favor of our vital interests, and honest pundits know this. So that isn’t the issue.

It is that the Democrats have a completely opposing outlook on how to protect our interests. At the core of the difference is a deep difference of opinion about the War on Terrorism and why exactly we’ve been a target of Islamic extremists.

For the past few years, I have tried in vain to engage members of the Left in a discussion of this, and it very quickly devolves into, “Well, that’s just your opinion. Who knows what Bush’s Real Motives (TM) are.”

I knocked on that door and there’s nobody home.

I voted for Democrats for almost 20 years, until 2004. I will not do so again.

Apr 28, 2006 - 3:40 pm 18. flenser:

According to GG;

Our country is governed with virtually no opposition by the Bush movement and its defenders, and as a result, the corruption, dishonesty and abuses of power which one finds among them are the ones which, in my view, are the ones most worth talking about and battling against.

I’d sure like to live in this country he describes, rather then the one I actually live in, where I cannot walk into a bookstore or turn on a TV or open a newspaper without seeing someone describing Bush and the Rethuglicans as evil and/or incompetent.

The evidence cited to support this proposition is usually nothing more than that they disagree with certain policy choices. For example, Mona’s assertion that the NSA operation is illegal, in spite of several court rulings which indicate the exact opposite.

Most things in the world we dislike cannot be attributed to criminality, corruption, evil, or stupidity, but to the fact that other people think differently then we do.

Apr 28, 2006 - 3:41 pm 19. Godzilla:

“eliminate recognition of all marriages”

That is wild! I agree with that. What’s your reasoning? I’m curious. Mine follows this path:

1: Marraige was originally devised as a way for men to control which men had exclusive access to which women, and gave women a claim on which man must provide support to which women. It was all about control. ORIGINALLY!

2. Flash forward to the present. Marriage still primarily is a binding form of control, but not worth the paper that it’s printed on.

3. The question to me is not should gay men be allowed to marry, but why in the world would they want to?

4. Marriage, based on its roots should be phased out, and something more mutually balanced should be devised. (I’m working on that).

Apr 28, 2006 - 3:43 pm 20. Godzilla:

zefal, regarding the elimination of marriage. I admit that I only came to that decision within the past week, and that there are quite a few bugs to work out!

Apr 28, 2006 - 3:47 pm 21. Mona:

flenser writes: For example, Mona’s assertion that the NSA operation is illegal, in spite of several court rulings which indicate the exact opposite.

That is categorically and flatly false. Totally. Utterly. I’m a lawyer competent to know relevant case law, and who has researched that case law; what you say is simply and wholly untrue.That is why right-of-center lawyers like Orin Kerr have opined that Bush would lose in the SCOTUS 8-1. I believe it would be 9-0, after examining the judicial posture of the one he thinks might hold out, namely, Thomas.

There is one, single sentence of dicta (not a ruling, by definition) by one judge in the FIS Review panel, that suggests support for Bush’s position. Hordes of right-of-center lawyers pay it no attention, because controlling SCOTUS precedent makes it very clear that what Bush is doing is illegal. Non-leftist lawyers like Bruce Fein (Reagan DoJ), William Sessions (Reagan FBI Director and former federal judge) Richard Epstein (U of Chicago Law School Con Law prof) and many others have publicly rejected Bush’s illegal program, because they know the law.

I have come to have enormous contempt for Powerline. What pushed me over the edge is that they are lawyers, and know better about the legal “arguments” they make trying to defend Bush. Specifically, I am aghast at John’s repeated and glib dismissals of the Youngstown Sheet and Metal case as “silly, and “sloppy.” That case is the death knell for Bush, John knows it, and hence his absurd remarks about a precedent that has long been applied by SCOTUS, including recently in the Hamdi case. Both John Roberts and Sam Alito agreed, during their confirmation hearings, that issues like the NSA matter would be analyzed per Justice Jackson’s Opinion in Youngstown. So pace John Hinderaker, and sloppy and silly or not, if this matter can get into a federal court, Bush will be smacked into behaving lawfully by virtue of that controlling case.

I strongly suggest you travel to Greenwald’s site, and at his sidebar you will find a link to “Compendium of NSA Arguments.” Links to various conversations among lawyers and others will set it all forth for you. Or, you could purchase Greenwald’s very readable book. It is selling for a bit over $7 now that Amazon has slashed the price.

Apr 28, 2006 - 4:16 pm 22. Keith_Indy:

Godzilla (ahhhhhh, its Godzirra) Thanks for “getting it”

It is exactly the “Party” mentality I was commenting on. And it’s interesting that some people will say in the same breath, “they” are hopelessly corrupt and inept, but “we” know what’s right and would never do that.

ME - I hope that the way I wish issues would be solved are the correct way. But I know enough to know that it may not be. And I’ve always been open to discussion and can change my mind if presented with evidence of a better way. But the proof is in the pudding as they say. Communism - don’t work. Socialism - works on small scales. Democratic Republic - been working for us since the Civil War.

ME - I’m not trying to create Heaven on Earth where everyones needs are taken care. I’m just trying to leave it better then I found it. That requires consensus, and actually discussing the issues, instead of demogagory and playing politics. There’s to much politicking going on, and not enough governing. And both Parties are contributing to the problem, and both are the key to solving it. Or, one of them will be so fractured in the next 3 years that a new way will emerge.

ME - We really ought to just abolish the Party mechanisms, and let each candidate run on their own.

As for marraige - I’m not for its elimination. I’m for the state getting out of the business of deciding what should be an expression of religious faith. Let any competent adult have civil unions with any other competent adult. But, make the contract mean something, and make it both tough to enter and exit.

Apr 28, 2006 - 4:26 pm 23. Bostonian:

Mona,

And Cass Sunstein is, of course, a well-known member of the VRWC, so that settles that.

***
Feel free to provide links any time.

Otherwise I will assume your arguments are pure assertion.

Apr 28, 2006 - 4:28 pm 24. Keith_Indy:

Roger - we’re not political hybrids…

We’re PEOPLE.

Subject at times to whim and deep thought.

Always imperfect.

Apr 28, 2006 - 4:28 pm 25. Bostonian:

Mona,
Ah, a link or links were mentioned.

That was dumb of me.

Still, you wrote about it like the matter is just completely settled, and it’s not. Do you really think it’s intellectually honest of you not to mention that some well-respected lawyers disagree with this opinion that you claim so pervasive?

Apr 28, 2006 - 4:35 pm 26. flenser:

Mona

Five former judges from the FISA court testified before the Senate Judiciary Committee on the subject of FISA and the Presidents powers to conduct surveilance.

You don’t have to take the word of any partican hacks, like PowerlLine OR Glen Greenwald. You can read what they had to say yourself.

Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress’s power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?

Judge Kornblum: No President has ever agreed to that.

Senator Feinstein: What do you think as a Judge?

Judge Kornblum: I think–as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, “I surrender all of my power to a statute,” and, frankly, I doubt that Congress, in a statute, can take away the President’s authority, not his inherent authority, but his necessary and proper authority.

Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President’s power under the Necessary and Proper Clause under the Constitution.

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President’s constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

Not surprisingly, nobody is suing to overturn this supposedly illegal program. Tell me Mona; do you regard these former FISA judges as partisan hacks? How could they be so wrong? Are you more familiar with the relevant are of the law than they are?

Apr 28, 2006 - 5:00 pm 27. flenser:

Mona

many others have publicly rejected Bush’s illegal program

You need to stop saying things like that. Your not liking something does not make it illegal.

Apr 28, 2006 - 5:08 pm 28. Mona:

Bostonian writes: Still, you wrote about it like the matter is just completely settled, and it’s not. Do you really think it’s intellectually honest of you not to mention that some well-respected lawyers disagree with this opinion that you claim so pervasive?

Damned few. And the bottom line is, there are tons of right-wing lawyers who KNOW Bush would lose in the SCOTUS. Indeed, Hugh Hewitt has even written that the Bush DoJ’s refusal to appeal adverse FISA Court rulings that involve the warrantless spying program, would hint that they lack confidence in their legal position. And that is certainly so, since any analysis of the 9 people on that court indicates how the votes would go, and the Bush DoJ can count to 9. (I’ve linked to Hewitt’s remarks at Rightwingnuthouse and Protein Wisdom, but I lost the bookmark, sorry.)

Anyway, here is a link to the Compendium of NSA Arguments I mentioned. What so many don’t understand is that the legal theories Bush sets forth to justify the lawbreaking in the NSA matter are not at all specific to that program. As I began to grasp exactly what he was claiming, and that he was applying it to other issues, that is when I truly began to get how extreme his views on Executive power are. Justice Jackson said in the Korean-war era Youngstown case I cited, said that if a President is not held to the rule of law, even in wartime, we would be taking a step toward dictatorship.

The single most elegant rejection of Bush’s power claims comes from Antonin Scalia in the Hamdi case. It is opinions like that which tell the Bush DoJ they need to keep the NSA and other matters out of federal court. Cass Sunstein may like theories of unlimited Executive power, but I’ve never seen him say that Bush would win in court.

Apr 28, 2006 - 5:17 pm 29. flenser:

Mona writs;

Cass Sunstein may like theories of unlimited Executive power,

I gather you are having trouble with links, but if you get it figured out, I’d be interested in a cite for this. I’m not a fan of Cass Sunstein, but I’m pretty sure you are lying, again.

Apr 28, 2006 - 5:22 pm 30. Mona:

Flenser writes;
Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President’s constitutional authority. Anybody disagree with that?
[No response.]
Chairman Specter: Everybody agrees with that.
Not surprisingly, nobody is suing to overturn this supposedly illegal program. Tell me Mona; do you regard these former FISA judges as partisan hacks?

No, and like Specter, I agree with them. Yet Specter just announced he would threaten to propose a law de-funding the NSA program if the Administration didn’t cooperate with becoming legal. So, those comments do not contradict that what Bush is doing is illegal.

My former Con Law prof, Doug Kmiec (a far-right guy who occasionally writes for NRO) has opined that Bush’s warrantless surveillance would have been legal in the immediate aftermath of 9/11. I think that is right, and it is also right that the Clinton DoJ held that Clinton could violate FISA in very rare, isolated circumstances of true emergency. The difference is it cannot be done on an ongoing, institutionalized basis. That is what the Youngstown case means. It leaves open a window for true emergencies, when the President must act to preserve national security. He has the Constitutional authority and obligation to do that.

But he cannot do it forever, and not as standard operating procedure across the board. And that is what Bush has been doing. The SCOTUS will never ratify that.

As to why no one is suing, actually they are. But it is probable the cases will be dismissed for lack of standing. The people best positioned for standing to sue are those who have been surveilled without warrants, but they do not know they have been. No one knows who they are, except the NSA.

Apr 28, 2006 - 5:32 pm 31. flenser:

Hmm. I guess Mona isn’t going to deign to respond to those silly FISA judges.

Apr 28, 2006 - 5:33 pm 32. Mona:

I gather you are having trouble with links, but if you get it figured out, I’d be interested in a cite for this. I’m not a fan of Cass Sunstein, but I’m pretty sure you are lying, again.

Do that again — claim I’m lying — and I will never reply to you again, except to state that I will not reply to you, and why.

Cass Sunstein’s views are discussed, and I’m pretty sure linked to, at the Compendium of NSA arguments, the link I provided.

Apr 28, 2006 - 5:36 pm 33. Mona:

What the FISA Judges Really Said.

Apr 28, 2006 - 5:46 pm 34. flenser:

Mone writes;

those comments do not contradict that what Bush is doing is illegal.

Really? They certainly seem to do just that.

You are insisting that this is a cut-and-dried case of law breaking by the President of the US. Judges who are intimately familar with this area of the law were asked for their testimony on the topic. Surely we should be hearing from them that of course Bush was breaking the law, rather than that Bush’s position is the same as that of all prior presidents, and that Congress has no power to encroach on the the executive authority? Why, in your opinion, were they so reticient to say Bush is a criminal? Why do they basically state the opposite?

If Specter really believes that what Bush is doing is illegal, should he not be raisng the issue in a court of law, instead of threatening to cut off funding? This does not look like the action of somebody who thinks the law is on his side.

Do that again, claim that Bush is breaking the law as if it is a fact, and I’ll continue to say that you are a liar.

Apr 28, 2006 - 5:47 pm 35. flenser:

What the FISA judges really said?

Mona, you are an embarrassment to moonbats everywhere

I posted a link to the transcript of what they said. Nobody needs to read Gee-gees interpetation of what they said.

Apr 28, 2006 - 5:54 pm 36. Mona:

If Specter really believes that what Bush is doing is illegal, should he not be raisng the issue in a court of law, instead of threatening to cut off funding? This does not look like the action of somebody who thinks the law is on his side.
Do that again, claim that Bush is breaking the law as if it is a fact, and I’ll continue to say that you are a liar.

The Foreign Intelligence Surveillance Act is federal CRIMINAL statute, that Bush admits he is violating and has been for four years. People who violate the penal code are criminals. George Bush is breaking that law, on an ongoing basis.

Arlen Specter does not have standing to sue. I’m sorry, but if you are not a lawyer, or lack a legal background, you are not in a position to really grasp all of the relevant issues. Standing being one of them.

Call me a liar, and we will be done.

Apr 28, 2006 - 5:57 pm 37. flenser:

I’m sorry, but if you are incapable of comprehending written English, you really are not in a position to discuss this matter, are you?

I’ve posted what the judges who are experts on this area have to say, and you simply pretend that they are not saying what they are clearly saying.

Can I call you a fool instead?

Apr 28, 2006 - 6:02 pm 38. John Moore ( Useful Fools ):

Mona, did you by chance used to hang out on Compuserve Town Hall?

Anyway, the quote was about domestic spying. The NSA case is about trans-border spying, unless someone is saying that the NSA intentionally monitored, without a warrant, calls that originated and terminated in the US.

When you cross the border, the executive branch can search your bags without a warrant or probable cause. Common sense says that electronically crossing the border should be no different - certainly in cases where the call terminates internationally. Furthermore, since foreign governments routinely monitor cross-border communications, an international caller has no realistic expectation of privacy - which is needed to trigger FISA and constitutional protections.

Regarding the issue of political labeling… come on… everyone knows that the labels are inexact. But they are also necessary unless you plan to make each sentence five hundred words long!

Apr 28, 2006 - 6:03 pm 39. flenser:

that Bush admits he is violating and has been for four years.

Another lie. Bush never “admitted” that he was violating any law, and in some dank recess of your mind I’m sure you know that.

Apr 28, 2006 - 6:04 pm 40. Sandy P:

Arlen’s making a power grab, congress has been at it awhile now.

Apr 28, 2006 - 6:14 pm 41. Sandy P:

Mona, I’m no lawyer, and I believe I shouldn’t have a say — according to your rules, but I will anyway.

Anyone who’s left the USA and called back and didn’t know their call was being monitored is clueless.

I visited Europe in 82 and knew it and I was a young’un.

Apr 28, 2006 - 6:18 pm 42. Mona:

John Moore, hello! Yes, I’m the CompuServe/TH Mona and I do remember you! (Aren’t you the tornado catcher?)

FISA applies to all international calls intercepted when one of the parties is a “U.S. person.” The Bush Administration does not deny that it is intercepting such communications that are controlled by FISA. They concede they are in violation of FISA.

Their argument is that they are entitled to be. Further, Alberto Gonzalez, in his follow-up written remarks to the Senate Judiciary Committee submitted after his testimony, strongly suggested that the FISA violations also apply to purely domestic situations.But he declined to elaborate.

Apr 28, 2006 - 6:23 pm 43. Mona:

Sandy writes: Mona, I’m no lawyer, and I believe I shouldn’t have a say — according to your rules, but I will anyway.

No rule, it is just that it becomes frustrating to explain things when people think they have a “gotcha!” like Arlen Specter’s failure to sue; elementary principles of standing preclude his doing so, but I can’t give a primer on civil procedure in a comment here.

As for your idea that Congress is making a “power grab.” Both Clarence Thomas and Antonin Scalia have stated that Congress has authority to legislate in the area of national security. That is well-settled law. FISA pertains to national security, and Arlen Specter has an interest in protecting the prerogatives of the legislative branch of govt. That is not a power grab, it is a fundamental principle of separation of powers. Literally as American as apple pie.

Apr 28, 2006 - 6:30 pm 44. David Thomson:

ìBut he cannot do it forever, and not as standard operating procedure across the board. And that is what Bush has been doing. The SCOTUS will never ratify that.î

This is the key point. People who truly fear Islamic nihilism are not upset by the NSA surveillance program. Mona doesn’t really believe that there is legitimate long term war against terrorism. In the back of her mind, if not even consciously, it is merely a con job to advance the interests of Halliburton and the other major corporations.

Apr 28, 2006 - 6:33 pm 45. John Moore ( Useful Fools ):

Mona is trying to link to here.

I just read the whole thing. Not a word about the international aspect of this.

Mona, good to see you in here. I have often wondered what became of you. Yes, I’m a storm chaser.

Apr 28, 2006 - 6:35 pm 46. flenser:

They concede they are in violation of FISA.

I think its pretty clear that when Mona says things like this, what she is trying to say is “They said that they are doing things which I think are a violation of FISA.”

Her inability to say that, in that fashion, certainly makes you wonder what the qualifications are to get through law school. Good communication skills don’t seem to be a requirement.

Apr 28, 2006 - 6:35 pm 47. John Moore ( Useful Fools ):

<a href=”the link”> text you want to see </a>

Apr 28, 2006 - 6:38 pm 48. flenser:

Mona

I don’t recall saying that Specter should sue. But if he seriously believes that the President is illegally spying on Americans, and refusing to stop, then he ought to be calling for impeachment.

Apr 28, 2006 - 6:39 pm 49. John Moore ( Useful Fools ):

Folks,

Please stop beating up on Mona. She hasn’t convinced me that she is correct, but I do know from past conversations that she is not dishonest. Perhaps now that she can see how to post links, she will support her assertions with them.

Apr 28, 2006 - 6:39 pm 50. Mona:

John Moore writes:
I just read the whole thing. Not a word about the international aspect of this.

I don’t understand what you mean. FISA, on its face, applies to international communications when one of the parties is a “U.S. person.” FISA requires a warrant to intercept those communications. I know Glenn discussed that in his initial analysis of the FISA statute. That’s all in the compendium to which I linked.

Apr 28, 2006 - 6:41 pm 51. Mona:

Perhaps now that she can see how to post links, she will support her assertions with them.

Oh geez, I know how to post links, John! And I’ve done so repeatedly — to the Compendium and to the discussion of what the FISA judges said.

Apr 28, 2006 - 6:43 pm 52. flenser:

John

No offense, but when Mona says things like “Bush admits he is violating and has been for four years”, what conclusions can we come to?

The kindest explanation is that she is not very skilled with words, but I find it hard to believe that you can get through law school without learning the basics.

That leaves dishonesty, it seems to me.

As I say, she keeps repeating this “They admit they broke the law” formulation, when what she should be saying is “they say they did things which I think are or should be against the law”.

I don’t think it’s unreasonable to expect an honest and intelligent person to be able to see the difference.

Apr 28, 2006 - 6:54 pm 53. David Thomson:

ìOh geez, I know how to post links, John! And I’ve done so repeatedly — to the Compendium and to the discussion of what the FISA judges said.î

As far as Iím concerned you are dodging the real question: do you believe we are engaged in a long term battle against Islamic nihilism?

Apr 28, 2006 - 6:55 pm 54. Mona:

flenser writes: I think its pretty clear that when Mona says things like this, what she is trying to say is “They said that they are doing things which I think are a violation of FISA.”

No. the Bush DoJ admits that the NSA warrantless surveillance falls within FISA, and that they are not in compliance with that statute. You are making an argument Bush does not himself make.

They argue two things: (1) that the Authorization to use Military Force triggers language in FISA that moots the statute (they have retreated from this argument for complicated reasons), and (2) that Bush has “inherent authority” to violate FISA.

But they have not denied that the commutations they are intercepting without warrants are communications for which FISA requires warrants.

It is difficult to argue all of this in a forum like this, without sounding like I’m making an appeal to authority — mine and that of other lawyers. Think about whatever it is you do for a living, or an area in which you have great expertise. Then imagine having to argue something pertaining to all that with someone getting things wrong, and who does not understand the most elementary aspects of your area of specialized knowledge. It isn’t that they are stupid, it is simply that you have this mountain of knowledge that they lack. It can be very frustrating.

Apr 28, 2006 - 6:57 pm 55. flenser:

I have no problem at all with appeals to authority Mona.

The problem for you is that your authority is Glen Greenwald (who?), while mine is the judges who used to sit on the FISA court.

My royal flush beats your pair of sixes.

Apr 28, 2006 - 7:01 pm 56. Mona:

Dave Thomson asks: As far as IÔøΩm concerned you are dodging the real question: do you believe we are engaged in a long term battle against Islamic nihilism?

Very, very long term. Which is why the SCOTUS in Hamdi said Bush could not hold a citizen without charges or a lawyer for the duration of the conflict. That would amount in all likelihood to Mr. Hamdi’s natural lifetime, and we cannot have a situation where the govt can hold citizens in prison without charges or access to a lawyer, virtually forever. Scalia actually insisted Hamdi had to be let go or criminally charged, unless Congress suspends the Writ of Habeas Corpus.

The SCOTUS is never, not ever, going to ratify that George Bush — and all the Executives that come after him for however many decades we are dealing with Islamic terrorism — is free to violate the laws of Congress. Won’t happen. That’s what the Youngstown case means.

Apr 28, 2006 - 7:06 pm 57. John Moore ( Useful Fools ):

The definitions section of FISA most certainly includes terrorists AS foreign powers (the sections under (a) are joined by “or”:

(a) ÔøΩForeign powerÔøΩ meansÔøΩ
(4) a group engaged in international terrorism or activities in preparation therefor;

Again, from the same link, emphasis mine:

(f) ÔøΩElectronic surveillanceÔøΩ meansÔøΩ
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

Note the “reasonable expectation of privacy” below. Would you have a reasonable expectation of privacy on an international call? To which country? How about if you were calling a terrorist “switchboard” that might have been compromised (there is no way to know)? Heck, France had all of Air France’s first class cabins bugged!

Also, you state: “Both Clarence Thomas and Antonin Scalia have stated that Congress has authority to legislate in the area of national security. That is well-settled law. FISA pertains to national security,

ALL areas of National Security? All aspects? Can they command the Army?

One other comment - the FISA law is clearly inadequate for dealing with modern terrorism. It puts huge barriers in the way, barriers that technology has made much more significant. It was written the old style, small scale terrorism in mind, not Jihad with WMDs.

Just as Congress has been irresponsible in not creating succession laws for the situation in which most or all members are suddenly killed, they have been irresponsible in not updating this law.

Apr 28, 2006 - 7:08 pm 58. flenser:

You are making an argument Bush does not himself make.

No, you are putting words into the mouths of Bush and the WH which they have not said. They have not said they are breaking the law. They have said that the Presidential authority trumps FISA. and the FISA court judges have agreed, both in past cases, and in the opinions delivered to the Judiciary Committee. That rather emphatically is not an admission of breaking the law, and you need to stop pretending it is.

Apr 28, 2006 - 7:09 pm 59. Mona:

flenser writes: The problem for you is that your authority is Glen Greenwald (who?), while mine is the judges who used to sit on the FISA court.

Well, those are past judges. But setting that aside, as I’ve said, I do not disagree with them. Moreover, I’d be DELIGHTED if the Bush DoJ would appeal one of the cases where they haven’t liked what the FISA court said about data obtained via the warrantless program. But they steadfastly refuse to do that.

Why do you suppose that is?

Apr 28, 2006 - 7:11 pm 60. David Thomson:

ìIt is difficult to argue all of this in a forum like this, without sounding like I’m making an appeal to authority — mine and that of other lawyers.î

You still have not answered the question: are we in a long term struggle against Islamic nihilism? Furthermore, todayís technological advances make it it impossible to monitor the typical incoming phone call. The NSA surveillance activity is simply a pragmatic response to this challenge. As Supreme Court Justice Robert Jackson once said: the Constitution was not devised to be a suicidal pact.

Apr 28, 2006 - 7:13 pm 61. Mona:

flenser writes: They have not said they are breaking the law. They have said that the Presidential authority trumps FISA. and the FISA court judges have agreed, both in past cases, and in the opinions delivered to the Judiciary Committee.

There are no such past cases, not with a holding. And I’ve told you, and given a link for elaboration, what the FISA judges testified to is not support for ONGOING violations of FISA. That is illegal. Period.

Let Bush appeal a case implicating his warrantless program if you are right — he’ll never do it. over at The corner, Andy McCarthy actually wrote that if the FISA Court ruled against Bush, should ignore the Court! Because McCarthy also knows what the ruling would be.

Apr 28, 2006 - 7:15 pm 62. Mona:

With regard to Justice Robert Jackson’s observation that the Constitution is not a suicide pact. That same justice, some thee years later drafted the Youngstown Opinion that is applied by the SCOTUS. All emphasis mine:

While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. … When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system….
Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture….
the Constitution did not contemplate that the title Commander in Chief of the [343 U.S. 579, 644] Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of “war powers,” whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the “Government and Regulation of land and naval Forces,” by which it may to some unknown extent impinge upon even command functions.
That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history….
The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.
Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. [343 U.S. 579, 647] “Inherent” powers, “implied” powers, “incidental” powers, “plenary” powers, “war” powers and “emergency” powers are used, often interchangeably and without fixed or ascertainable meanings.
The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test. … The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although [343 U.S. 579, 650] it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, 18 they made no express provision for exercise of extraordinary authority because of a crisis. 19 I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do … In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.

There is ample reason why Powerline hates this Opinion, and has ridiculed it as “sloppy” and “silly.” Bush will lose if his illegal spying program ever reaches the federal courts.

Apr 28, 2006 - 7:33 pm 63. flenser:

That is illegal. Period.

Great. We can now proceed to dismantle the entire US judicial system. No need for actual courts or judges, or trials or juries. Mona can state, with iron-clad certainty, what is and what is not legal. Good Grief!

Just ignore the FISA court saying in 2002 that “all the courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence”. Because Mona says it never happened.

Seriously, when did the courts cede to you the power to decide what is and what is not legal? I seem to have missed that. If you could manage to sprinkle a few “I think”s and “in my opionion”s into your posts you might not come off so badly.

Apr 28, 2006 - 7:34 pm 64. Mona:

John writes: Just as Congress has been irresponsible in not creating succession laws for the situation in which most or all members are suddenly killed, they have been irresponsible in not updating this law.

FISA was substantially amended and updated by The Patriot Act. For example, it removed “the wall” that had been in place between intelligence agencies. Bush told Congress what he wanted, and he was given virtually everything he asked for. He didn’t ask for amendments that would render his warrantless spying program legal. He simply arrogated to himself the right to violate the law.

Apr 28, 2006 - 7:39 pm 65. flenser:

Mona says

Well, those are past judges. But setting that aside, as I’ve said, I do not disagree with them (The FISA judges)

Great. So when they say that they “do not believe, with all due respect, that even an act of Congress can limit the President’s power under the Necessary and Proper Clause under the Constitution.” you are in complete agreement. Right?

No, I’m sure you are not. In which case, you are disagreeing with them.

Apr 28, 2006 - 7:39 pm 66. Charlie (Colorado):

Mona: “Oh geez, I know how to post links, John! And I’ve done so repeatedly — to the Compendium and to the discussion of what the FISA judges said.”

Uh, Mona, would that be why your link doesn’t work, but John’s does?

That aside, though, I think I see where the problem is coming up. See, we’ve got competing epistemologies here: on the one side, a collection of citations of various people stating their opinions, some number of whom seem to be clearly saying that no matter what the statute says, because of the inherent powers of the Executive under Article II, the NSA intercept program is in fact constitutionally protected and therefore not illegal; on the other hand, we’ve got your categorical assertion, without qualification, that the program is illegal.

I realize legal training sometimes glosses over these little subtleties, but there is a distinction between “fact” and “the position for which I am currently an advocate.” In this case, you’ve got a question in dispute, with several notable legal authorities (certainly a helluva lot notable than Mona no last name positing in a blog comment) coming down on Bush’s side, taking arguable positions on a point which is pretty unlikely to ever be adjudicated.

(Oh, and note by the way that Arlen Specter seems to be agreeing it’s legal, constitutionally protected, as well. He’s now suggesting that he might press forward using the power to withdraw funding, which is pretty uniformly agreed to be the Legislative remedy to Executive power.)

I’ll grant, however, that calling it a “lie” is probably over the top. I think “arrogant to the point of appearing delusional” might fit, though.

Apr 28, 2006 - 7:42 pm 67. Mona:

flenser writes: Just ignore the FISA court saying in 2002 that “all the courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence”. Because Mona says it never happened.

That is entirely true. Altho the SCOTUS has not ruled on the issue, wrt the 4th Am, lower courts have held that the president’s inherent authority overrides the warrant requirement in the national security context. That is absolutely and totally accurate. And is also why Orin Kerr said Bush’s program is likely kosher vis-a-vis the 4th Am.

Kerr, however, said that Bush would almost certainly be found to be violating the law. FISA extends warrant protections beyond the 4th Am, and Congress has authority to do that — that body shares national security authority with the Executive, and when it legislates, it almost always prevails — that’s Youngstown.

Apr 28, 2006 - 7:46 pm 68. Charlie (Colorado):

Mona, I don’t think the Youngstown decision makes this a slam-dunk. There are a lot of differences — factual and in the law — between nationalizing domestic industry during a “police action” entirely contained in a foreign country, and intercepting foreign communications during a declared war subsequent to an attack on the US mainland.

Apr 28, 2006 - 7:47 pm 69. John Moore ( Useful Fools ):

Not being a fan of the absolute authority of the Supreme Court over all actions in our land, I find Justice Robert Jackson’s comments interesting, not conclusive.

I would also be interested in the reason that Congress, where members of both parties were briefed all along, chose not only to not intervene but to keep this important program secret.

And let us not forget - a vast majority of those critters are also lawyers, and have staffs with more lawyers.

So we have a situation where the law only applies if there is a reasonable expectation of privacy, and where inherent Presidential powers do not apply (note that this can be disputed, but the Court has no more power to decide this than the President or COngress - we do have a tripartite government). Furthermore, we have to believe that the President is not invoking special war powers, even though Congress iplicitly granted these in its authorization to use all necessary actions for war against terrorism (not against Iraq, or Afghanistan, or whatever - the generic war).

A clear part of necessary actions is surveillance of communications with suspected enemy agents - which is exactly what the NSA, a military organization, was doing on the orders of the Commander in Chief.

I did read a bit more on the compendium site, and found the counter-arguments to be selective, to be kind. Lawyers are paid to represent one side, and that is what I find - not an attempt at objectivity, but a clear selection of arguments and facts that support the position while ignoring the other side - exactly what the supporters of the program are accused of doing.

Finally, let’s say its illegal. So in the middle of a war, we get rid of the President (heck, we’ve already weakened his war fighting powers, especially with the CIA foreign prisons revelations and the NSA leak). Real smart.

Al Qaeda teaches its agents that we will defeat ourselves through our legalisms. Apparently we are doing our best to prove them correct.

So my question to Mona, as was made by another person, is this: Do you believe that we have a significant chance of terrorists using a WMD within our country in the next few years? Do you believe that we should compromise some of our liberties - especially ones that only were created in the last 50 years - in order to reduce that probability? Or do you think that the right is simply engaged in fear mongering for political purposes? Do you believe our personal freedoms are in more danger from the administration than we are in from terrorists?

Finally, what do you think the American people’s reaction would be if, let’s say, a small nuclear weapon, or even a dirty bomb, went off in Manhattan? Do you think they might just decide that we should have done more surveillance ahead of time, and adjusted our laws to correspond with the threat? Do you think our civil liberties would be greater or less if we continue to be absolutist about, let’s say, privacy and then have a bomb go off?

If you don’t think we are in danger, why do you believe that?

Apr 28, 2006 - 7:50 pm 70. flenser:

He didn’t ask for amendments that would render his warrantless spying program legal. He simply arrogated to himself the right to violate the law.

To somebody just a little more openminded than yourself, it might seem possible that he did not ask for permission to do what he regarded as being already within his own constitutional powers.

It’s not like there are not plenty of figures from former adminsrtarations, including the Clinton administrations John Schmidt, who agree that the president does indeed have that power.

Can you cite all the prior administrations which accepted that Congress could curtail their surveilence powers in the fashion which you think they can?

Apr 28, 2006 - 7:50 pm 71. Charlie (Colorado):

Kerr, however, said that Bush would almost certainly be found to be violating the law. FISA extends warrant protections beyond the 4th Am, and Congress has authority to do that — that body shares national security authority with the Executive, and when it legislates, it almost always prevails — that’s Youngstown.

Unless someone snuck Orin in and replaced the entire Supreme Court, I don’t think his opinion is controlling.

I think it’s more important though to ask how this is likely to be adjudicated? The administration has legal opinions of at least equal strength to your personal opinion saying it doesn’t need to be; they’re unlikely to raise the issue, because as far as they’re concerned, it’s been decided.

It’s not obvious anyone else has standing. No one seems to have gotten very far with an attempt to sue recently. Attempts to bring it up in Congress have pretty much failed; the attempts to censure Bush failed; it’s a rare democrat who’ll argue the program ought to be stopped, and the ones who do end up having their meetings in the basement by the folding chairs and the Christmas decorations because none of the rest of the party want to risk being associated with it.

So while you may think it’s illegal, how do you imagine it will ever be decided?

Apr 28, 2006 - 7:57 pm 72. Mona:

flenser writes: Great. So when they say that they “do not believe, with all due respect, that even an act of Congress can limit the President’s power under the Necessary and Proper Clause under the Constitution.” you are in complete agreement. Right?

Actually, that was an embarrassing misstatement on the part of the judge. He must have been confused, for it is hard to know what to make of that statement. The Necessary and Proper Clause is in Article I — which grants authority to Congress. There is no analogous language in Article II governing the Executive. There has been speculation as to what he might possibly have meant to say, but no one that I’ve seen really knows.

Apr 28, 2006 - 8:01 pm 73. Mona:

Charlie in CO asks: So while you may think it’s illegal, how do you imagine it will ever be decided?

It appears we may have discovered someone with standing, due to the DoJ mistakenly handing over classified documents in a case that it never intended to produce (I had forgotten about this):

Nelson said the classified documents appear to show that his client was the subject of warrantless eavesdropping by the NSA. He filed a lawsuit against the NSA on March 2 in Portland:
[The suit alleges that] the NSA illegally wiretapped electronic communications between the chapter and Wendell Belew and Asim Ghafoor, both attorneys in Washington, D.C.
The complaint, which also names President Bush as a defendant, seeks ÔøΩan order that would require defendants and their agents to halt an illegal and unconstitutional program of electronic surveillance of United States citizens and entities.ÔøΩ
The lawsuit was filed on behalf of the two Washington attorneys and the Al-Haramain chapter by three Portland civil rights lawyers: Steven Goldberg, Zaha Hassan and Thomas Nelson.
ÔøΩThis case will show how the illegal program was implemented and used to the injury of United States citizens and charities,ÔøΩ Nelson said.

We’ll see how this goes. The DoJ isn’t going to want this case to go forward, so it will be interesting to see what it does.

Apr 28, 2006 - 8:12 pm 74. flenser:

Trying to convince the Pope that there is some question about the divinity of Christ would be childs play compared to trying to convince Mona that there is any room for argument over whether the NSA program is legit.

Maybe Shrinkwrapped can explain what leads to people adapting this kind of dogmatic mindset.

Apr 28, 2006 - 8:16 pm 75. Terrye:

Mona:

I stopped voting for Democrats because they think that people like Bush and Dole and Gingrich are the enemy and not AlQaida. I expect the government to protect me from those people. I do not want a bunch of partisan Demcorats putting me or my family at risk while they try to exploit what they desperately hope will be Rush’s death knell.

It seems to me that if FDR can monitor all long distance phone calls without warrant in time of war then the present administration not only can but are duty bound to monitor phone calls to people in the US from terrorists abroad.

When those buildings fell on 9/11 I wondered how something like that could happen; and then someone like you comes along and reminds me that for some people the enemy is not the people who want to kill us, it is the people who are trying to stop them.

This is why Democrats get beat in elections. Some Democrats like Harman know better, she supports the program. And Specter has never suggested shutting the program down, he wants what he always wants, more influence and he is using the power of the purse to get it. But too many are too interested in pretending it is 1969 forever.

Apr 28, 2006 - 8:32 pm 76. flenser:

WASHINGTON (Reuters) - Saudi Arabia on Wednesday said it was dissolving a Riyadh-based charity suspected of funding al Qaeda and will fold its assets into a new group that will channel all Saudi charitable contributions abroad.
In addition to winding down the Riyadh-based Al-Haramain Islamic Foundation, Saudi and U.S. officials said they would seek to block the assets of its local branches in Afghanistan, Albania, Bangladesh, Ethiopia and the Netherlands.

The steps are designed to ensure Saudi charitable funds, which U.S. officials have long believed have helped to fund “terrorist” groups, do not get into the hands of militants.

This is a link.

I’m shocked, shocked! to learn that calls to these people were being monitored by US intelligence agencies. Oh, the humanity. Will nobody save us from that outlaw Bush?

Apr 28, 2006 - 8:34 pm 77. Mona:

John asks: So my question to Mona, as was made by another person, is this: Do you believe that we have a significant chance of terrorists using a WMD within our country in the next few years? Do you believe that we should compromise some of our liberties - especially ones that only were created in the last 50 years - in order to reduce that probability? Or do you think that the right is simply engaged in fear mongering for political purposes? Do you believe our personal freedoms are in more danger from the administration than we are in from terrorists?

I’m having a little trouble keeping up, so I’m not addressing everything you asked. But I do want to first say that whatever you might think is a situation involving a “reasonable expectation of privacy” is irrelevant to FISA. It isn’t irrelevant to the 4th Am, but it is to FISA. And FISA is the law Bush is violating.

You ask: Do you believe that we have a significant chance of terrorists using a WMD within our country in the next few years?

My answer: I don’t know about time frames, but I consider it likely that in the next several decades there will be destructive terrorist activity of some sort within the U.S.

You ask: Do you believe that we should compromise some of our liberties - especially ones that only were created in the last 50 years - in order to reduce that probability?

My answer: Not unless it is necessary. It isn’t necessary to sacrifice FISA warrants to prevent terrorist attacks. We knew about the hijacking of airplanes plot the August prior to 9/11 — before The Patriot Act. But the FBI agent who kept telling his superiors was blown off — that came out during the Moussaoue (sp?) sentencing trial.The FISA statute has been amended, and if it isn’t adequate to the task, let it be amended again. But let the president also obey the law.

You ask: Or do you think that the right is simply engaged in fear mongering for political purposes?

My answer: I think some Bush supporters are definitely doing that, yes. All of those coded color alerts magically disappeared after the election.

You ask: Do you believe our personal freedoms are in more danger from the administration than we are in from terrorists?

My answer: Terrorists cannot modify or destroy our civil liberties, they lack the means to do that. They can cause some death and destruction, but they cannot possibly hope to take over the nation or our political machinery. Only we can contract our civil liberties, if we let our govt do it.

Apr 28, 2006 - 8:37 pm 78. Terrye:

flenser:

Ah yes but first they came for the Saudis and I did nothing because I was not a Saudi and then they came for the jihadis and I did nothing because I was not a jihadi..

and so on and so forth. You know the rest.

Apr 28, 2006 - 8:39 pm 79. Terrye:

Mona:

Oh come on, it takes weeks to get the paperwork together for one of those warrants. The nutcase on trial in VA had information on his computer which might have stopped 9/11 but the agents were screwing around with FISA and did not get a warrant in time to look at the thing before the attack.

Besides, the technology today makes it possible for terrorists to communicate in ways that FISA was never intended to respond to. Call forwarding, throw away phones. etc.

I can see it now:

Agent: Boss I intercepted a call from a foreign agent to a US person. They were discussing plans to launch an attack…but don’t worry I hung up. No eavesdropping on my watch.

Apr 28, 2006 - 8:46 pm 80. flenser:

terrye

I see now where I want astray. I tried to make arguments. Henceforth I will employ the “Mona Method” of discourse.

The NSA program is legal. Period.

Simple, elegant, irrefutable. Wish I’d learned this a long time ago.

Apr 28, 2006 - 8:49 pm 81. Frederick:

Terrye:

Or maybe:

First they came for the lawyers and I did nothing. For they didn’t need any help.

Apr 28, 2006 - 8:53 pm 82. flenser:

If they do need help with the lawyers, I’m available.

Apr 28, 2006 - 8:57 pm 83. Mona:

I don’t know what to make of my failed links. They show up as good in my previews, and then aren’t working in my posts. I’m using the proper tags, so I really don’t get it. Don’t have the issue anywhere else. (shrug)

Anyway, I did make one mistake. “Reasonable expectation of privacy” does pertain as a standard in some FISA anlayses, and I retract what I said contrariwise to John Moore.

Apr 28, 2006 - 8:57 pm 84. Terry Ott:

I am not following all the legal niceties; “bravo” to those who find that aspect interesting enough to study and form opinions.

So let me take a layman’s position on this and ask the question: Even If it turns out that the POTUS is violating a law, why should I care?

I should care about people breaking a law when by doing so they are doing some of the following (not mutually exclusive):
(1) Doing harm to someone
(2) Gaining unfair advantage
(3) Advancing their own interests at someone else’s expense or to their detriment.
(4) Undermining some activity or entity established for the common good.
(5 Infringing upon someone’s rights with no compelling justification.

That list is certainly not exhaustive, but it covers most of the scenarios in which I think we all agree that a law is justified, does it not?

How does the “monitoring” activity we are talking about here do any of those five things, absent some additional and abhorrent action being taken based on the information beng monitored?

When the activity results in consequences that the public cannot live with, then obviously we have reason to resist, to censure, to ban, to whatever … to stop it. Until then, I am damn glad we are doing the thing.

If a member of my community shoots through a padlock to enter his neighbor’s property because he hears a beating going on, I’m not going to berate him about illegal trespass. Ideally, the law would be written in such a way that the well-intentioned deed was not punished, but if it is not written that way …. then it should be.

Call me a simpleton if you will, but I’m not able to get worked up over this. What am I missing?

Apr 28, 2006 - 9:49 pm 85. John Moore ( Useful Fools ):

Mona,
A few comments…

Terrorists most certainly can dramatically curtail our civil liberties - especially if you consider life to be essential to liberty.

But more importantly, they can take actions that will force our politicians to take far more drastic actions than they have so-far. I gave the scenario of a nuke attack on LA. I gave some likely responses. That is how they can attack our civil liberties - by scaring the heck out of the population.

As for your comment on the color codes - that wasn’t fear mongering, it was an attempt to create a system that signalled a status and was used by many agencies to adapt their readiness. For example, as a member of Civil Air Patrol, orange status meant I was on every-other-day alert. I think they disappeared because of ridicule.

Regarding the failure to stop the hijacking, given our knowledge… you don’t paint an accurate picture.

Specifically for civil liberties reasons, barriers were erected that prevented adequate communications within the intelligence and counterintelligence community. One of the most notorious was made by a Clinton appointee, who most conveniently was on the 9-11 commission, so a big deal wasn’t made of it.

This was a high barrier of communications between FBI counterintelligence and FBI anti-crime. This prevented crucial information from being integragted. Furthermore, civil liberties barriers prevent Moussoui’s hard drive from being read.

While the FBI showed a large amount of incompetence and normal bureaucratic silliness, the civil liberties barriers clearly were more important.

Likewise, prohbitions on CIA/FBi communications, combined with long standing inter-agency turf battles, kept the FBI from learning that some CIA-known terrorists were in the US. Two (I think) of these folks participated in the 9-11 attacks.

I also find the paperwork argument on FISA warrants to be important, or though it goes more to the inadequacies of the FISa law than to the legality of its application (which I think, in this case, is defeated by the “reasonable expectation of privacy” clause AND the authorization of force given by congress).

It is my own view that we have made a fetish of privacy protections. The 4th Amendment makes no mention of privacy, and the interpretations of it over time have extended privacy more and more. As an anti-abortion advocate (if my memory serves me right), you are surely aware of some of the torturous privacy-based reasoning in that area.

There are areas where one has an expectation of privacy. The fourth amendment very rightly protects those areas (although not explicitly privacy). But privacy has been extended well beyond that. Telephone calls, which are somewhat analogous to conversations in public areas, are highly protected. That was not the case 75 years ago. That is a *new* right that magically appeared. While I think that it is, in general, good policy, again I find the constitutional basis for it a bit weak.

I consider privacy to be the weakest of the “civil liberties,” because there is a lot less abuse potential than, say, forced confessions or suppression of speech. Interestingly, the founding fathers held that suppression of political writings, in fact prior restraint by statute, was legitimate. That’s scary, but the the Supremes upholding McCain/Feingold is pretty scary too!

Apr 28, 2006 - 10:53 pm 86. syn:

I respect your freedom to support a women’s right to abortion since you are free to choose however, supporting a women’s right to abort also supports the idea that females have the right to OWNNERSHIP of another human being determining whether that human being lives or dies. There is no difference between a slave owner who holds all rights to the slaves and a female who owns all rights to a human being.

Further, by supporting a women’s right to choose you are supporting the idea that Americans cannot and will never receive the benefit of having their right to vote.

Since Roe vs. Wade there has been no party of Liberalism in America. Unfortunately Roger when you support a women’s right to choose you are not supporting Liberalism. The orthodox feminist movement which encouraged the hijacking of our Constitution were never and will never be anything but lying vicious Marxists using ‘feel good’ words like right to privacy and social justice which do not exist in our Constituion while imposing ill-liberal “feel bad’ policies.

I was once a part of the Sisterhood but now that we have committed genocide of some 46 million lives aborted I must now defend the cause of Liberalism before it too is exterminated by the abortionists.

Apr 29, 2006 - 4:30 am 87. Mona:

John Moore writes: This was a high barrier of communications between FBI counterintelligence and FBI anti-crime. This prevented crucial information from being integragted.

There was a barrier, conventionally called “the wall.” However, that was not at issue in the 9/11 case. An FBI agent knew about the flight training and likelihood of hijackings, kept trying to warn his higher-ups, and they blew him off. That all came out in the Moussoui trial, and it did not implicate the wall. Moreover, The Patriot Act has since removed the wall.

You continue: I also find the paperwork argument on FISA warrants to be important, or though it goes more to the inadequacies of the FISa law than to the legality of its application (which I think, in this case, is defeated by the “reasonable expectation of privacy” clause AND the authorization of force given by congress).

George Bush repeatedly announced, to the American people, that The Patriot Act gave him everything he needed. He also repeatedly affirmed that when the govt surveilled in American, it was always done with warrants. That was false; when he made those statements he was violating FISA by not securing warrants. Congress would have given him anything he asked for, and did substantially amend FISA in The Patriot Act. Whatever time for paperwork he needed, they would have given him. They did extend the period for which surveillance could be done without a warrant from 24 to 72 hours. He could have asked for two weeks; he didn’t. Instead he announced that after TPA was passed, all tools needed for fighting terrorism were in place.

You go on: It is my own view that we have made a fetish of privacy protections. The 4th Amendment makes no mention of privacy, and the interpretations of it over time have extended privacy more and more. As an anti-abortion advocate (if my memory serves me right), you are surely aware of some of the torturous privacy-based reasoning in that area.

I do not agree with that at all. 4th Am jurisprudence is not afflicted with the same infirmities as the Roe v. Wade corrupt “reasoning.” Antonin Scalia is spot on as to what is wrong with Roe and its progeny, yet he recently drafted the Court’s opinion in KYLLO V. UNITED STATES , and was joined by Thomas. In that crucial decision, the SCOTUS made clear that advancing technology will not be permitted to vitiate the 4th Am. As with telephone wiretaps (and Scalia approvingly cites the Court’s previous extension of 4th Am protection to telecommunications), Scalia said the 4th Am required warrants for the use of invasive technology, such as thermal-imaging devices. Scalia emphasized the preservation of privacy interests (which he does not remotely regard as a “fetish,” as I do not), and wrote (my emphasis):

We have said that the Fourth Amendment draws ÔøΩa firm line at the entrance to the house,ÔøΩ Payton, 445 U.S., at 590. That line, we think, must be not only firm but also brightÔøΩwhich requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no ÔøΩsignificantÔøΩ compromise of the homeownerÔøΩs privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.
ÔøΩThe Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.ÔøΩ Carroll v. United States, 267 U.S. 132, 149 (1925).
Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ÔøΩsearchÔøΩ and is presumptively unreasonable without a warrant.

To reply to several commenters in general terms: If it is of no concern to a person that the Executive has arrogated to himself the right to violate laws we have passed through our elected representatives, nothing I could write would likely persuade you to be alarmed at lawlessness in a president. If the next many decades in which we will be dealing with Islamic fanatics who seek to terrorize us seems sufficient cause to someone for fundamentally altering the checks and balances the Founders bequeathed us, we will simply disagree. If you want a president that may do exactly as he wishes, with no constraint of Congress or the courts, if you prefer a monarch, then we agree to disagree.

Myself, I believe the terrorists win when unreasonable fear of them causes us to allow all to one man as long as he utters the words “national security.” That is an amorphous concept and can be stretched to cover nearly anything, thus rendering the Executive with the powers of King George III, whose powers our Founders specifically declined to invest in the Executive. What you prefer means Congress — and we through them — cannot legislate our political will on anything remotely touching on national security, which covers a very great deal. Our preferences are as nothing, if the Executive does not like them. That is monarchy; I don’t want that; some of you apparently do.

Apr 29, 2006 - 8:17 am 88. Captain Hate:

“That is monarchy; I don’t want that; some of you apparently do.”

Sooner or later the trolls can’t resist playing hard and loose with historical facts and making snarky, ill-founded remarks. First of all, an elected President is not the same as a monarchy. Just because you didn’t vote for Bush doesn’t mean that he’s the reincarnation of George III. So stop telling posters what they “apparently want” and stick to what you want. Why don’t you start off by telling what you think is an “unrealistic fear” of terrorists?

Apr 29, 2006 - 8:35 am 89. Captain Hate:

unrealistic == unreasonable; sorry for the misquote.

Apr 29, 2006 - 8:37 am 90. Mona:

Captain hate writes: First of all, an elected President is not the same as a monarchy. Just because you didn’t vote for Bush doesn’t mean that he’s the reincarnation of George III. So stop telling posters what they “apparently want” and stick to what you want. Why don’t you start off by telling what you think is an “unrealistic fear” of terrorists?

I voted for George Bush in ‘04.

The powers of a monarch are such that what he decrees is law. That is what Bush’s legal theories of expansive Executive power mean. Some months ago, in The Weekly Standard, Bush-supporter Harvey Mansfield addressed these theories and embraced the monarchy theme, and wrote that we should want Bush acting outside of the law, as a prince. To my astonishment, Powerline approvingly linked to that Mansfield piece.

Mansfield’s article, The Law and the President – appearing in the premier neoconservative magazine — contained this(my emphasis):
Power is more surely in the hands of many when exercised in the form of law–”standing rules,” as opposed to arbitrary decree. Republics tend to believe in the rule of law and hence to favor legislative power over executive.Yet the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. In Machiavelli’s terms, ordinary power needs to be supplemented or corrected by the extraordinary power of a prince, using wise discretion. “Necessity knows no law” is a maxim everyone admits, and takes advantage of, when in need. Small-r republicans especially are reluctant to accept it because they see that wise discretion opens the door to unwise discretion. But there is no way to draw a line between the wise and the unwise without making a law (or something like it) and thus returning to the inflexibility of the rule of law. We need both the rule of law and the power to escape it–and that twofold need is just what the Constitution provides for…. In the present administration, we do not really need to know the sort of secrets we learn from reporters like Bob Woodward. We do not need to know, for example, how important Vice President Cheney is; we can praise or blame President Bush for choosing to be advised by him. With one person in charge we can have both secrecy and responsibility. Here we have the reason that American society, in imitation of American government, makes so much use of one-man rule. In all of its institutions–corporations, unions, sports teams, gangs, and universities–our republic likes to place power in the hands of one person, and then hold him responsible. That is our republican maxim, quite different from the traditional one that sees safety in numbers. From this standpoint the 1978 Foreign Intelligence Surveillance Act is a mistake. That law makes surveillance subject to approval by a secret court of judges, who are thereby placed in a false position. If they give approval readily, they go against their profession as judges and fail to give judicious consideration to each case. Yet if they think as judges in terms of criminals rather than enemies, that may do harm to the country. We note that President Bush’s critics do not want him to stop surveillance; they just want him to do it legally–as if legality could guarantee success and morality could make our enemies give up.

I’m not on board with any of that. At all. And Justice Jackson rejected it in the controlling case , Youngstown. We do not have “one man” rule in the United States. That is monarchy, or as Mansfield puts it, the “power of a prince.” Mansfield is right, however, that no one wants the surveillance to stop; we just want a president who obeys the law, and do not want a prince. Emergencies are one thing — and everyone agrees the President should act as necessary during attack or invasion . But not on an ongoing basis, for decades, as will be the case in combating terrorism. Vigilance there ought not entail that we transform the office of president into that of prince.

Apr 29, 2006 - 9:58 am 91. Terrye:

Mona:

I do not want a monarchy, that has nothing to do with this.

Apr 29, 2006 - 10:14 am 92. John Moore ( Useful Fools ):

I apologize for this very long post, but it seems necessary to include large amounts of text because it is buried inside much larger articles.

Mona,
Your view of terrorist victory is strongly at odds with the terrorists’ view.

The Salafist terrorists only win when they have established their form of Islam throughout the world. They are willing to sacrifice as many lives - including their own - to do so.

It is that unique perspective, combined with the increasing availability of WMDs, that makes them so dangerous.

Converting the US into a police state would be a setback to them, as it would delay their ultimate goal. Again, your view is 20th century - consistent with the view of the revolutionary terrorist but not the Salafists.

The revolutionary seeks to cause oppression of the population into increase dislike of the ruling regime, sparking a popular revolution.

The Salafist seeks to destroy the very culture of the enemy, by weakening the enemy’s ability to make war and luring the enemy into appeasement. Both goals are simultaneously helped by massively destructive attacks. Dramatic large loss of life encourages appeasement. Massive casualties, mass destruction, and the diversion of resources to prevent future attacks disrupts the enemy’s economy, reducing war fighting capability. Terrorism targeted at individuals in free countries has demonstrated the Salafist capability to restrict important freedoms without large attacks, as the next paragraph shows.

One of our most important liberties has already been reduced by the terrorists, not the government: free speech. Imagine yourself publishing negative cartoons about Mohammed on your web site, with your identity easily found. Would you do that? Would have some fear afterwards, and if not, why not? Our government won’t stop you from doing so (less true in Canada and parts of Europe) - the threat is from the Islamists. In other words, the free speech rights of everyone in the world have already been compromised by the terrorists, and on a very important contemporary topic.

Indirectly, they have *forced* other restrictions on civil liberties, such as travel.

As I suggested previously, making it easier for the terrorists by being absolutist on civil liberties – especially privacy – is likely to lead to dramatic (hopefully temporary) restrictions on our liberties – as a highly emotional reaction to a very large WMD act of terror, or even a number of attacks of the sort that plagued Israel. I think it is prudent to “triage” that damage by reducing the more extreme obstructions to government surveillance, in particular, ahead of time. I have also argued (on my blog) that civil libertarians should preemptively become involved in planning for the inevitable fear-driven reactions in order to have influence in minimizing the necessary restrictions.

For example, much of the opposition to the Patriot Act (poorly named, for sure) was hysterical and discredited civil liberties absolutists. This will not be forgotten if another terrible attack happens.

It is also important to understand how a truly tyrannical state could emerge. I think it very unlikely when the populace is not in a state of immediate terror – the minor acts of tapping international phone calls is not going to cause it, because our population, our law enforcement sector and our military would not it. Far more dangerous are First Amendment attacks such as McCain-Feingold, or the Democratic Party’s attempts to silence dissent via the “Fairness Doctrine.” Finally, it is important to recognize that dictatorship of the judges is quite dangerous and undemocratic, and is already significantly encroaching on our society.

….

Regarding your other points… There were were actually two walls ‚Äì one between the CIA and FBI, and the other between FBI counter-intelligence and FBI criminal operations. I do find it interesting that you justify (properly) the Patriot Act.

Regarding The Wall)

In the days before September 11, the wall specifically impeded the investigation into Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi. After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.

“When the CIA finally told the FBI that al-Midhar and al-Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI headquarters refused to allow criminal investigators who knew the most about the most recent al Qaeda attack to join the hunt for the suspected terrorists.

“At that time, a frustrated FBI investigator wrote headquarters, quote, ‘Whatever has happened to this–someday someone will die–and wall or not–the public will not understand why we were not more effective and throwing every resource we had at certain ‘problems.’ “

You say: George Bush repeatedly announced, to the American people, that The Patriot Act gave him everything he needed.

Answer: AFTER 9-11, not before.

Fourth Amendment:

The right of the people to be secure in their persons [at the border?], houses […] against unreasonable searches and seizures…

The case you cite is more closely connected to the fourth because it is about “houses,” not international communications. But even there, I think the jurisprudence has gone too far in disallowing evidence found in a legitimate search that was not the target of the search.

… no Warrants shall issue, but upon probable cause…

does not require warrants, but describes the restrictions on warrants. In pre bill-of-rights America, warrants were used for purposes other than law enforcement – they were sometimes used for intimidation and theft Furthermore, warrants were held to be dangerous, because they immunize the searchers and seizers from subsequent lawsuits. Also…

A long heretical quote from a a much longer document from Yale Law School

Are Warrants and Probable Cause Required for All Searches and Seizures?

Assuming that government has triggered the Fourth Amendment by engaging in a “search” or “seizure,” the obvious next question is what the Fourth Amendment requires.

…

But there are several problems with this “warrantist” reading of the Amendment.

First, it is not what the words of the Amendment say.

Second, no Framer ever said that this is what the Amendment did or should mean.

Third, no early treatise said that all warrantless searches and seizures were (even presumptively) illegitimate.

Fourth, many early state constitutions featured search and seizure provisions, yet none of these said that all searches and seizures required (even presumptively) warrants.

Fifth, several early state cases construing these state constitutional counterparts explicitly rejected the notion of a general warrant requirement, and no early state case–or federal case, for that matter–embraced the idea.

Sixth, a large number of historical examples give the lie to the idea that warrants were always required at the Founding–warrantless arrests, searches incident to warrantless arrest, searches of ships, searches of liquor store-houses, border searches, successful seizures of contraband and stolen goods, and on and on.

Seventh, if the warrant requirement is merely presumptive, it is far from clear how and why the presumption is to be rebutted. To infer a (presumptive) warrant requirement and then to infer a set of exceptions to that (presumptive) requirement is to do an awful lot of inferring and very little reading: In effect, it is to rewrite the Amendment rather than to read it as written (and intended).

Eighth, without a fairly elaborate set of exceptions to a (presumptive) warrant requirement, the Amendment would simply defy common sense: In the real world there are a vast number of intrusions ill-suited for warrants. This is especially evident if searches and seizures are defined broadly, consistently with the good Terry. Many of these intrusions–such as metal detectors at airports, border-crossing checkpoints, and plain-view limited public surveillance a la Officer McFadden–are reasonable even though they lack probable cause or even individualized suspicion, and thus no warrant could ever authorize them.

Ninth, in the three decades since Terry, and especially in the last few years, the Supreme Court has often (though not always) read the Amendment in keeping with the good Terry, emphasizing reasonableness, rather than warrants and probable cause as the Amendment’s central mandate.

Tenth, the emphasis on warrants as the central Fourth Amendment safeguard ignores the ways in which these ex parte instruments, which issue without notice or opportunity to be heard and which exert preclusive force in later proceedings, actually pose distinct threats to liberty that certain warrantless searches do not.

I disagree that George Bush believed he was violating the law. Rather, it is clear that he, and his administration, agreed that the law did not apply. There is a very substantial difference. Even so, FISA was informed of the action, as were both parties in Congress - bringing all three branches of government into the loop.

Apr 29, 2006 - 10:22 am 93. Terrye:

Mona:

For decades, in fact centuries presidents have taken far greater powers than this. Bush said the Patriot Act was sufficient in so far as it went, but this is a seperate program in the NSA. It used to be classified, but thanks to some seditionist reporters it is now well known to the world.

If you had your way all terrorists would have to do is make sure than one end of their conversation took place in the US and on a cell phone and they could plan anything at anytime without any interference.

The President has the power to do this, even the FISA court has said so. Bush did not hide the program from the Congressional authorities.

Monarchy indeed. FDR really did monitor all long distance phone calls without a warrant. Back in those days such things were routinely done, was a he a king or a president?

Apr 29, 2006 - 10:25 am 94. Mona:

Terrye writes: Monarchy indeed. FDR really did monitor all long distance phone calls without a warrant. Back in those days such things were routinely done, was a he a king or a president?

I’m no FDR fan, but he was not behaving as a monarch in that instance, for the very good reason that at the time such monitoring was legal and deemed by the SCOTUS to be constitutional for any purpose, criminal or for national security reasons. (The SCOTUS would reverse that a few decades later, for criminal law purposes, and reserving the question of the national security context, which they have not yet decided.) FISA had not been enacted. After FISA was enacted, all presidents, as far as we know, complied with it — until George Bush.

This is what Robert Bork wrote several years ago, in defense of The Patriot Act (my emphasis):

Prior to 1978, and dating back at least to World War II, attorneys general of the United States routinely authorized warrantless FBI surveillance, wire taps, and break-ins for national-security purposes. Such actions were taken pursuant to authority delegated by the President as commander-in-chief of the armed forces and as the officer principally responsible for the conduct of foreign affairs. The practice was justified because obtaining a warrant in each disparate case resulted in inconsistent standards and also posed unacceptable risks. (In one notorious instance, a judge had read aloud in his courtroom from highly classified material submitted to him by the government; even under more conscientious judges, clerks, secretaries, and others were becoming privy to secret materials.)
Attorneys general were never entirely comfortable with these warrantless searches, whose legality had never been confirmed by the Supreme Court. The solution in 1978 was the enactment of the Foreign Intelligence Surveillance Act (FISA). Henceforth, sitting district court judges would conduct secret hearings to approve or disapprove government applications for surveillance.

The SCOTUS might well decide that Bush also needs warrants for 4th Am purposes; Scalia is a 4th Am kinda guy. But they are never going to hold that FISA — identified by Bork as a “solution” — does not bind the President. A President who acts as if the law does not bind him is claiming the powers of a monarch. And Bush has claimed the law does not bind him in other contexts than FISA, for example, the power to employ torture regardless of what laws Congress has passed.

Apr 29, 2006 - 10:42 am 95. John Moore ( Useful Fools ):

Roger,
It’s your blog, but if a reader is tired of the length of the discussion, he’s free to not read it.

As sometimes happens, a discussion gets a life of its own. The thread I find myself in is not even related to the original topic - political labeling. Is that bad? Or does it represent a strength of this blog - to draw sufficiently passionate people that such a branch can survive for a while?

Apr 29, 2006 - 10:48 am 96. Mona:

John Moore: don’t assume I approve of all aspects of The Patriot Act. My objections, however, pertain to its use to expand govt power in simple criminal contexts, not terrorism. I agree with Russ Feingold’s criticisms, as I quote those at the end of my long, co-authored guest post at Greenwald’s blog: Using the Drug War to Expand Government Power

(I use an openly known pseudonym over there, Hypatia.)

You may recall that while I was allied with Republicans during the Clinton era, and so participating with them at TH, there was always some unhappiness there with my views. Those views are libertarian, not conservative as that has come to be understood, especially by the populist, Bush/Frist GOP. Barry Goldwater, he might come near to representing my political posture. But not the modern Republicans.

Apr 29, 2006 - 10:57 am 97. Mona:

Ok, I’ve had it with this linking nonsense. I embed a link, it shows up kosher in preview. Then it is dead when the comment posts.

My ‘puter or whatever must have issues with Roger’s software. Regardless, it is frustrating, so I guess I’ll call it quits. (And Roger seems tired of the discussion anyway.) But this is the url for my Drug War Post and the Patriot Act:

http://glenngreenwald.blogspot.com/2006/04/using-drug-war-to-expand-government.html

John, I comment at a number of sites where my email address is linked to, like the Reason Hit ‘n Run board. And in a few weeks will be joining one of the QandO bloggers in launching a libertarian-leaning group blog. It will likely be announced at Greenwald’s, and you could track me down from there. It would be nice to stay in touch and maybe catch up with where some of the other THers ended up.

Apr 29, 2006 - 11:40 am 98. klrfz1:

My former Con Law prof, Doug Kmiec (a far-right guy who occasionally writes for NRO) has opined that Bush’s warrantless surveillance would have been legal in the immediate aftermath of 9/11. I think that is right, and it is also right that the Clinton DoJ held that Clinton could violate FISA in very rare, isolated circumstances of true emergency. The difference is it cannot be done on an ongoing, institutionalized basis. That is what the Youngstown case means. It leaves open a window for true emergencies, when the President must act to preserve national security. He has the Constitutional authority and obligation to do that.

This is just nuts. The only time it would be legal to intercept terrorist phone calls without a FISA warrant would be immediately after a terrorist attack? Yikes! If this is really what the law says then the law, Mona, is an ass!

(You see, Mona, it would be more effective in preventing terrorist attacks to have increased surveillance immediately before each terrorist attack, not just immediately after.)

I just want to see if I can post a link.

Apr 29, 2006 - 2:04 pm 99. John Moore ( Useful Fools ):

Mona,

Please stick around for a bit. Your knowledge and perspective will be welcomed here. This blog has a history of some pretty good discussions with some pretty high quality commenters, and is usually pretty civilized. Roger himself is a good guy with a very interesting background and viewpoints, and lots of friends and contacts (Yale, latter 60’s, for example) from which he comes up with interesting stuff. Not to mention that he is a very good professional writer (novels and movies, at least).

Believe me, we are probably in almost complete agreement about the use of the Patriot Act in criminal matters. I felt they should have specifically restricted it to counter-intelligence (anti-terrorism).

There is only one section that I can think of (off the top of my head) where it is appropriate to the criminal arena: roving wiretaps. I agree with the proponents that this is a needed modernizing of an existing capability and as such doesn’t represent any new invasion of civil liberties. There may be a few other modernizations that I just don’t remember.

As for the links, I would be surprised if the problem is your computer. Are you creating your posts in an editor or word processor and then pasting them in? Maybe that’s the problem. Certainly if you type in the a bracket syntax directly into the “comments” window on the web browser, your computer isn’t going to mess with it. Also, I have seen it change my HTML in the comment window after I did a preview. Now, when I am doing tricky things like using the magic to be able to put in markup and have it show (like >a<), I do a “select all” and “copy” of the comments box, do the preview, and then do a “select all” and “past” to put back what I had before the preview. I bet that would solve you problem. I have been doing that on this post, in particular.

I took a look at the raw source of one of your link attempts, and what I saw was:

<a>some stuff</a> - in other words, the href phrase vanished. Are you putting double quotes in around the URL in the href? Maybe Roger’s blog is extra picky about that. You should be able to do links if you use the form:

<a href=”the url”> some stuff </a>

Apr 29, 2006 - 11:19 pm

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