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>

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.

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.

(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.

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?

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.

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?

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.

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

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.