The Tap-O-Mania Parade in New York
EXTENSIVELY UPDATED JAN.10TH
I was kind of missing all my Dem. readers and thought this should bring them all out to play, so here goes, in it's entirety, another brilliant article from Mark Steyn published last night.:
"Here's a Reuters headline from New Year's Day: "CIA May Need Decade To Rebuild Clandestine Service."
A decade, huh? Circa 2016, you mean? The last time I checked the job-completion estimates was back in spring 2004, when the agency's then-director, George Tenet, told the 9/11 Commission that it would take another half-decade to rebuild the clandestine service. In other words, three years after 9/11, he was saying he needed another five years. As I wrote at the time, "Imagine if, after Pearl Harbor, Franklin Roosevelt had turned to Tenet to start up the OSS, the CIA's Second World War predecessor. In 1942, he'd have told the president not to worry, he'd have it up and running by 1950."
But CIA reform is like the budget for Boston's Big Dig or the 2012 London Olympics. Think of a number, triple it and update your excuses. Four years after 9/11, it may take 10 years to rebuild the clandestine service. So Tenet would be telling FDR not to worry, we'll have the World War II intelligence operation up and running in time for the 1956 Soviet invasion of Hungary. OK, make that the Cuban missile crisis. But definitely by the fall of the Berlin Wall.
The latest estimate came from Gary Berntsen, who was the CIA's man on the ground during the hunt for bin Laden in Tora Bora in late 2001. That's what most folks think the agency does, just as "clandestine service" is assumed to be the core activity -- all the super top-secret undercover stuff you see whenever the CIA turns up in movies like ''Syriana,'' in which the sinister spooks subvert a Middle Eastern government. Oh, if only. Away from the glamorous adventuring of the silver screen, alas, the only government they're any good at subverting is the United States'.
It's very hard to fight a terrorist war without intelligence. By definition, you can only win battles against terrorists pre-emptively -- that's to say, you find out what they're planning to do next Thursday and you stop it cold on Wednesday. Capturing them on Friday while you're still pulling your dead from the rubble is poor consolation. For example, in 1988, a British SAS unit shot dead three IRA members on the streets of Gibraltar. The United Kingdom's Joint Intelligence Committee were acting on information that the cell was planning to blow up the changing-of-the-guard ceremony on the Rock. The two men and a woman were subsequently found to be ''unarmed,'' and as a result various civil liberties groups protested and critical TV documentaries were made. But there was no dispute that they were IRA members and that they had bomb-making materials in their car. If the state cannot take action until its sworn enemy uses those materials, it had better be prepared to lose the war.
It shouldn't be necessary to point out the obvious. But, unmoored
from reality, wafting happily into fantasy land safe in the
hermetically sealed Democrat-media bubble, Sen. Barbara Boxer and her
colleagues are apparently considering impeaching the president for
eavesdropping on al Qaida calls made to U.S. phone numbers. Surely,
even Karl Rove can't get that lucky.
By the way, I'd love to see
the witness list for that trial: Muhammad al-Jihad testifying that a
week before he blows up a Bali nightclub he always makes a perfectly
innocent call to his cousin in Milwaukee to ask how the kids are; Abu
Musad al-Zarqawi testifying that he only called Howard Dean to issue a
formal complaint about congressional Democrats stealing his
rationalizations. Etc.
The Democrats and the media want to
upgrade every terrorist into O.J. Simpson, insulated by legalisms and
entitled to his own dream team. (Their figleaf, the court set up by the
Foreign Intelligence Surveillance Act, which previously denied not a
single request, has turned down hundreds in the years since 9/11.) The
practical effect of the Dems' approach is to extend the protections of
the U.S. Constitution to any dodgy character anywhere on the planet who
has a U.S. telephone number in his Rolodex. Indeed, given that
perfectly ordinary cell phones can be used almost anywhere -- this
week, I spoke to an American in London by dialing his Washington cell
number -- if the Democrats have their way, all terrorist cells in
Europe or Pakistan would have to do to put themselves beyond the reach
of U.S. intelligence is get a New Jersey-based associate to place a
bulk order for Verizon cell phones.
This isn't a hypothetical
situation. Consider Iyman Faris, a naturalized American citizen also
known as Mohammad Rauf and nailed by U.S. intelligence through the
interception of foreign-U.S. communications. He was convicted in 2003
for doing the legwork on an al Qaida scheme to blow up the Brooklyn
Bridge. A "hardworking truck driver," he was introduced to Osama bin
Laden while enjoying a well-earned vacation at a terrorist training
camp in Afghanistan in 2000. At the request of bin Laden's aides, he
researched the terrorist possibilities of "ultralight" aircraft. In
2002, he was commissioned by al Qaida to return to America and procure
the materials for severing suspension-bridge cables and derailing
trains.
Do you want Iyman Faris in jail? Or do you think he
should have the run of the planet until he's actually destroyed the
bridge and killed hundreds of people? Say, the Golden Gate Bridge just
as you're driving across after voting for Barbara Boxer and
congratulating yourself on your moral superiority.
But, if you
want Iyman Faris in jail, you better consider how you're going to get
him there -- because, as a rule, the only way you find out details of a
terrorist plot is by intercepting communications. And these days that
means electronic communications, like telephones. If Iyman Faris was
sporting enough to communicate with his handlers in Pakistan through
sealed parchment delivered by steam packet via the Cape of Good Hope,
no doubt the Democrats and media would be happy to consider allowing
surreptitious unsealing in international waters provided you got a
warrant from the Hague.
So that's where we stand four years
after Sept. 11. The arthritic $44 billion intelligence bureaucracy is
insisting it still needs another five to 10 years to have a clandestine
service capable of infiltrating al Qaida operations in the field, but,
while we're waiting, don't think of using that $44 billion to keep tabs
on their phone calls, because the Dems will impeach you.
According
to a Rasmussen poll, 64 percent of Americans believe the National
Security Agency should be allowed to intercept telephone conversations
between terrorist cells overseas and persons living in the United
States; 23 percent disagree. What is it the Democrats and media don't
get about this?"
More on Steyn's article from my good friend @ Media Lies, and also this from him in the comments section, relating to Glenn Greenwald below, who has written much on the subject, and is adamant that The President has blatantly broken the law:
"Nevermind that much greater legal scholars than Greenwald
disagree completely on this topic, and from both sides of the aisle. I
have read, and written, a great deal on this topic. I've come to the
conclusion that FISA wasn't relevant to this situation to begin with,
yet FISA itself is an unconstitutional usurpation of the President's
Constitutional powers under Article II, Section I of the Constitution.
As
with anything in government, there is more than one way to skin a cat.
The Constitutional way is for Congress to declare war and provide the
monies for the armed forces and the President to run the military
operations, unfettered by Congressional interference other than
their Constitutionally-given powers. If Congress doesn't like the way
the President runs a war, then refuse to fund it. Go before the public
and make your case. Let the President make his. Then let the people
decide. (Trust me, Senators and Congresscritter, we'll let you know
what we think.)
But Congress doesn't want to reduce funding,
because they fear the people. (Re-election is, after all, their primary
purpose for being.) So they claim that something the President did is
unconstitutional. That he broke the law. That he should be impeached.
They're
full of crap. First of all, every President since Jimmy Carter,
including Jimmy Carter, has claimed the right to conduct warrantless
surveillance and not one peep has been heard from Congress until now.
Carter staked his claim mere months after he signed the very law that
was supposed to circumscribe his actions. (Like much of what passes for
"law", FISA was a feel-good legislation, supposed to comfort the
American people that their privacy rights weren't being invaded - never
mind that there is no constitutional right to privacy to begin with!)
Secondly, in the course of his duties as Commander-in-Chief, the President can conduct surveillance of anyone
who he, in his sole descretion, determines is a threat to the United
States. If you're worried about your rights, the Fourth Amendment
provides you all the protection you need. Read it. It says
"UNREASONABLE" search and seizure, not "ANY" search and seizure. Now
guess who gets to decide what's unreasonable - the President - until
the courts have specifically defined the case law.
Thirdly, every single court that has addressed the issue, including the FISA court in 2002,
has admitted that Congress cannot circumscribe the Presidents
Constitutional responsibilities, no matter how much they may desire to.
Finally,
this country could never win a war run by Congress. Our founding
fathers knew that. That's why they gave that power to the President and
balanced it by granting Congress the power of the purse."
Needless to say my Dem. friend Glenn Greenwald disagrees:
"Everyone knows by now that the objections to Bush's NSA program have nothing to do with opposition to eavesdropping on Al Qaeda, but are instead based upon the fact that in ordering this eavesdropping, Bush is breaking the law, because the eavesdropping is conducted in secret and without the judicial oversight required by FISA. Surely Steyn knows this, too. But rather than address the argument, he simply lies and says that the objections are based on the belief that the U.S. shouldn't be eavesdropping on Al Qeada."
and earlier:
"Every Democrat and every Bush opponent should be pointing this out at every possible opportunity. George Bush violated eavesdropping laws and says he will continue because he claims the right to break the law. Debates over specific terrorism-related "laws" or eavesdropping powers or anything else don’t matter because we have an Administration which claims that George Bush -- regardless of the outcomes of those debates -- has the power to violate those laws when he sees fit. Anyone who doubts that this is so should just read Mansfield’s article, or listen to Dick Cheney."
UPDATE: The answer directly from The NSA, courtesy of The Volokh Conspiracy from Reuters:
The head of the National Security Agency told employees last month that NSA officials had not violated U.S. law by participating in an agency program that eavesdrops on U.S. citizens without judicial oversight, newly released documents show.
"Media coverage surmises that administration and agency officials may have acted unlawfully — notions I reject, categorically!" NSA Director Lt. Gen. Keith Alexander assured agency employees in a December 22 message.
He acknowledged that Congress may schedule hearings on the domestic spying program, which President George W. Bush authorized in 2002 to eavesdrop on Americans' telephone calls and e-mails without first obtaining warrants.
"Overall, we are not concerned," the NSA director said. "Our operations are carefully deliberated and measured; they are within the law; and they are nobly executed with strict oversight."
The message itself can be found here.
More from Joe Klein @ Time, who thinks that "liberal democrats are playing too fast and too loose with issues of war and peace". Tom Maguire is discussing here and Digby @ Hullabaloo from the left here.
In case you missed it in my previous post on Steyn below, The Radio Blogger interview Hugh Hewitt did with Steyn is a great read. It relates to another article I posted recently of Steyn's which is again brilliant., I named the post 'The Constitution Is Not A Suicide Pact.
UPDATE JAN 10TH: Article from WSJ Opinion Page., and an extensive post on the whole issue by the talented Dafydd @ Big Lizards.
Some excellent links courtesy of my dear friend Media Lies, with explanations:
The Foreign Intelligence Security Act permits the government to monitor foreign communications, even if they are with U.S. citizens --50 USC 1801, et seq. A FISA warrant is only needed if the subject communications are wholly contained in the United States and involve a foreign power or an agent of a foreign power.
Eavesdropping Ins And Outs [Mark R. Levin]
Executive Order 12333 - This is the Executive Order that provides NSA with their authority. Written by Reagan in 1981.
In 1982, The US Court of Appeals for the Sixth Circuit ruled, "A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation."
In USA v. Bin Laden, the US District Court, New York, reads, in part, "All of the cases which have
established the existence of a foreign intelligence exception to the warrant requirement (and which are
relied upon by the Government) arose in the context of electronic surveillance." This case rejected the
reasoning of a US citizen who was charged with crimes based upon warrantless surveillance done by the NSA and accepted into evidence the results of that surveillance, which went on for more than one year.
John Schmidt who was associate Attorney General of the US under Bill Clinton writes, "It's legal."
The Clinton administration argued it was legal. "The Department of Justice believes, and the case law
supports, that the president has inherent authority to conduct warrantless physical searches for foreign
intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence
Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."
"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."
Executive Order 12333, signed by Ronald Reagan in 1981, provides for such warrantless searches directed against "a foreign power or an agent of a foreign power."
The FISA Court itself recognizes that the President has a right to warrantless surveillance for foreign
intelligence purposes. "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that
authority and, assuming that is so, FISA could not encroach on the President’s constitutional power."
Furthermore, USSID 18 clearly states that NSA does not need FISA approval for warrantless foreign
intelligence purposes. The Attorney General has the authority to authorize the surveillance if "the person is an agent of a foreign power" and the purpose of the surveillance is "to acquire significant foreign intelligence information".
Jimmy Carter asserted the right to conduct warrantless surveillance just seven months after he signed FISA into law. "An executive order signed by President Carter in May of 1979 reads, "The attorney general is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.""
Judge Posner, who is a judge on the U.S. Court of Appeals for the 7th Circuit and a senior lecturer in
law at the University of Chicago says, "These programs are criticized as grave threats to civil liberties.
They are not."
According to one former federal prosecutor, there is court precedent supporting the view that FISA is an unconstitutional encroachment on the President's powers. "The Supreme Court reversed in a 7-2 vote, with only Scalia and Thomas dissenting. The Court held that Miranda was "constitutionally rooted," and on that account could not be modified by statute.
The Left was of course quite pleased with this result (which the Clinton Administration supported, causing my resignation from the US Attorney's Office). But it seems much less thrilled with the notion that the President's Article II powers -- which are not merely "constitutionally rooted" but established by the text of the Constitution -- effectively nullify any attempted limitation by Congress, whether in FISA or elsewhere.
Thus, in my view, it makes no difference what the exact provisions of FISA are in this area, because any of its language that even arguably limits the President's Article II authority is, under the
rationale of Dickerson, invalid."
UPDATE JAN 11TH:
The National Security Agency's inspector general has opened an investigation into eavesdropping without warrants in the United States by the agency authorized by President Bush after the Sept. 11, 2001, attacks, according to a letter released late yesterday.
Glenn Greenwald and Medai Lies fight it out in the comment section below, whilst Jonah Golberg is fuming over @ NRO
Linked to Johnathan @ GOP Bloggers, Decision 8
Hey Anitmedia and Glen - Just wanted to say, that I very much appreciate reading your detailed comments. All I can say is that I too welcome the ACLU's lawsuit. This is clearly not a cut'n dry issue. I am afraid though, that depending on the outcome of the suit, we can be sure that the loosing party will cry foul... which will bring us back to square one ;-)
Posted by: North by Northwest | Tuesday, January 17, 2006 at 06:38 PM
Anything the President does can be reviewed by the courts. That's what the courts are for - to arbitrate constitutional disputes.
I don't see how there's anything here to reconcile. The President has his duties. Congress has theirs. There are certainly grey areas, but there are none (in my opinion) with regard to his duties as CinC. He is CinC, not Congress, and Congress has no authority to limit his authority as CinC. When they attempt to do so, then a legitimate conflict ensues, and the courts must resolve that conflict.
Congress' checks and balances, with regard to the President's powers as CinC consist of 1) declaring war and 2) allocating monies for the armed services and 3) setting standards and conditions for the military (UCMJ, etc.). They have no oversight of the President's decisions with regard to how a war is conducted (other than the three things I've itemized here), and they cannot tell the President how to conduct surveillance in his capacity as CinC.
If they think he's overstepped his bounds (as they clearly did in Youngstown), that's what the courts are for.
Posted by: antimedia | Tuesday, January 17, 2006 at 05:23 PM
The President isn't a dictator, but he's not a powerless stooge of the almighty Congress either. The Executive is a co-equal branch of government, and all the flummoxry in the world won't change that.
Secondly, in the course of his duties as Commander-in-Chief, the President can conduct surveillance of anyone who he, in his sole descretion, determines is a threat to the United States.
Please reconcile these two statments. Are there in fact some actions the President may engage in that can't be reviewed by the courts? And if so, where are those checks and balances we hear about?
Posted by: The Heretik | Tuesday, January 17, 2006 at 10:39 AM
Glenn asks
No. I believe there are grey areas where Congress may pass a law that the President disagrees with, and the courts decide the law is unconstitutional or the court decides that certain provisions of the law are unconstitutional and must be struck from the law, leaving other parts intact. I do not believe that just because Congress passes a law the President must abide by it any more than I believe that I must abide by a law Congress has passed simply because they passed it.That's what we have courts for. To resolve disputes about the law. Congress' power to legislate does not include making unconstitutional laws and then demanding their enforcement.
IOW, I do not see it as a black and white issue, as you appear to.
Furthermore, I do not believe Youngstown even addresses the issue of the President's powers with regard to foreign affairs.
No, that's not the point at all. The point is that the President does not have the power to interfere in domestic affairs in wartime simply because he's CinC, but as CinC his powers are at their maximum and "should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force,".You also asked
Yes, obviously. Go read US v. Bin Laden first, and explain how an American citizen could be warrantlessly surveilled in 2002 and have the evidence obtained against him used to convict him.Then read Jabara v. Kelley, and explain how the judges didn't even bother to mention FISA (in 1979!) when determining that Jabara was not (and then, on remand, was) a foreign agent, therefore the surveillance was legal.
You also wrote
First, get it out of your head that I'm defending the President. I could care less what his arguments are. I don't need somebody else's playbook to form my own opinions.I think the President has the right to detain and order the indefinite incarceration of American citizens depending upon the circumstances. If they are caught on the battlefield, fighting for the enemy, then I think it's incontrovertible that he has that right.
If they are caught in a foreign country, acting as a foreign agent of an enemy with which we are engaged in active conflict, then I think he has the same rights in that instance.
If they are caught in the US, acting as a foreign agent of an enemy with which we are actively engaged in active combat, then I'm not certain. I'd have to read the case law. I believe he should, just as he has the right to incarcerate any foreign spy, but I haven't studied the issue.
Finally you wrote
It's completely different from a dictator. A dictator rules over every aspect of one's life regardless of one's actions. A military commander has every right to detain agents of the enemy until the conflict ceases - without trial because they have not committed a criminal act - and with all the same rights as any other POW as defined by the Geneva Convention.You, like many people, seem to think that being an American citizen grants you certain absolute rights that shield you from any interference from the government. Even in the case of the right to free speech this is not true (shouting fire in a crowded theatre). The Fourth Amendment protects you against unreasonable search and seizure not any and all search and seizure. If you are acting as an agent of a foreign power, then you will be treated like one in times of war, just as you should be.
As a citizen, you do not stand alone. You are one of millions. Those millions also have rights. You cannot claim that your rights prevent the government from interfering with you when you are interfering with other citizens rights.
You are stuck in the same law enforcement mode that every other liberal is. Law enforcement is for peacetime and domestic issues during wartime. It does not address foreign affairs or military issues. To claim that under no circumstances can any American ever be surveilled without a warrant in a time of war is foolish and false.
The government doesn't need a warrant to surveil a foreign agent. In fact the Supreme Court has said the idea is "silly", because the US can't get warrants issued by other powers in order to surveil their citizens. During wartime, the same axiom applies internally if you are an agent of a foreign power. All the government has to do is show the court evidence that you are an agent and the Fourth Amendment no longer applies, even though you are a citizen, with regard to surveillance and collection of information about you. And they can make that showing in court after the fact, should you ever sue for relief.
I don't think the President has made that argument. I do think he should. As has been said, "If you're talking to Al Qaeda, we want to know why." I could care less if you're a citizen or not.
Posted by: antimedia | Thursday, January 12, 2006 at 05:49 PM
I understand you love Youngstown, because you think Justice Jackson's tripartite explaination is the be all and end all of your arguments,
Do you agree that under Youngstown, the only way a President can act contrary to a Congressional statute is if Congress has no authority at all to legislate in that area?
I think it's more than a little disingenuous to quote Jackson and leave out this from his opinion.
The whole point of the passage which you claim I omitted disingenously is that a President may have certain powers, even absolute powers, when dealing with enemies outside of the U.S., but when it comes to U.S. citizens inside the U.S., his powers are much more limited. That's the opposite of your argument.
Youngstown is not dispositive of anything even closely related to these issues.
Not only does the DoJ disagree with you, even Sam Alito does, saying in his hearings that the FISA controversy must be resolved in the Youngstown tripartite framework.
In fact, the one thing which everyone seems to agree on - except for you - is that Youngstown provides the analytical framework for deciding the question of whether the President had the right to order warrantless eavesdropping on Americans in light of FISA. That fact doesn't, by itself, prove that you are wrong, of course (you could be right and everyone else could be wrong), but it's pretty compelling evidence.
they clearly stated that the reason Jabara's Fourth Amendment rights were violated was because the government didn't provide "any evidence" that Jabara was an agent of a foreign power.
I will go read that line of cases if you can tell me that the cases addressed a President ordering eavesdropping contrary to the mandates of FISA or some other statute. Did they?
Never did I say "the President can do anything he wants to that citizen, from eavesdropping on him to throwing him in a military hole without a lawyer, charges or a trial."
In case you haven't heard, the President has already claimed that the same theory you are touting to justify warrantless eavesdropping on Americans DOES entitle him to detain U.S. citizens with no charges, no trial and no access to lawyers. And not only does he claim that right, he's exercised it in the case of two U.S. citizens, despite the fact that habeas corpus has not been suspended. Far from trying to scare people by inventing hypothetical abuses, these things have already occurred - based on the very theory you are touting here.
Do you think the President has the right to detain and order the indefinite incaraceration of U.S. citizens based solely on his own say-so and with no review? If not, how can you square that view with your theory which allows warrantless eavesdropping on Americans, since detaining enemy combatants is surely as much a part of the "inherent powers" of a wartime President as eavesdropping is.
And if you think (along with the Administration) the President does have the power to do detain U.S. citizens indefintely and with no due process, how is that any different than a dictator?
Finally, cases which simply stand for the proposition that the President has inherent power to engage in warrantless surveillance does not answer, or even address, the question of whether the President can do so in the face of a statute making that conduct a crime. There are lots of areas where both the Executive and the Congress have powers, and the whole point of Youngstown is that in such areas, where the Congress enacts a law, everyone, including the President, must abide by it.
That's why Youngstown is dispositive and your line of cases is irrelevant.
Posted by: Glenn Greenwald | Thursday, January 12, 2006 at 02:53 PM
Glenn, I understand you love Youngstown, because you think Justice Jackson's tripartite explaination is the be all and end all of your arguments, but I think it's more than a little disingenuous to quote Jackson and leave out this from his opinion.
Referring to Youngstown, you writeThis too is false. Youngstown did not deal with an issue of eavesdropping at all, but the President's attempt to meddle in domestic affairs claiming his power as both executive and CinC allowed him to do that. The court rejected his argument, but it never addressed the argument of whether or the President could conduct warrantless surveillance on American citizens. Youngstown is not dispositive of anything even closely related to these issues.Much more on point are a number of cases that have dealt directly with the issue of whether or not the government can lawfully conduct warrantless surveillance of American citizens. Every court - every court - that has dealt with the issue has ruled that if the purpose of the surveillance is to gain foreign intelligence information, the government may lawfully conduct warrantless surveillance.
I suggest you go look at the following cases and then come back here and tell us I'm wrong. Jabara v. Kelley (476 F. Supp. 561; 1979 U.S. Dist. LEXIS 11749)
In Jabara v. Kelley, a US citizen sued for injunctive relief because the FBI had asked the NSA to provide any intelligence that they had on Jabara, and the NSA complied without a warrant. The court held that it was a violation of his Fourth Amendment rights and granted him summary judgment.However, in their opinion, they clearly stated that the reason Jabara's Fourth Amendment rights were violated was because the government didn't provide "any evidence" that Jabara was an agent of a foreign power. The ruling was reversed on appeal because the government subsequently did provide evidence that Jabara was a foreign agent and the summary judgment was vacated.
All we know is that the government claims the surveillance is done on phone numbers that were obtained from the phones of Al Qaeda terrorists. That is sufficient cause to believe that the person on the other end is a foreign agent. Therefore, warrantless surveillance is legal.Instead of your long-winded tirades claiming Youngstown trumps every other court decision, deal with the above cases and prove to us that the courts have all been wrong. Until you do that, your claims are null.
As to your claim that the administration has admitted that FISA applies to what they're doing, that is simply false - a canard that the left claims that cannot be proven.
Finally, I don't really care what the administration's arguments are. I don't take my orders from them. I believe FISA is unconstitutional, and I have said so unequivocally, regardless of what the President or anyone else argues. Until it is tested before the Supreme Court, no one can really say if my opinion is right or wrong. It's simply my opinion. Congress cannot impose restrictions on the President's power wrt foreign affairs or foreign intelligence. Any law they pass that attempts to do so is unconstitutional, including FISA.
Nor is it relevant, because FISA does not even apply to what the NSA is doing (what little that we know of it) as every court that's ruled so far has clearly stated.
Finally, you write
Depravity is distorting someone's argument and creating strawmen rather than dealing with substance, Glenn.I said "in the course of his duties as Commander-in-Chief, the President can conduct surveillance of anyone who he, in his sole descretion, determines is a threat to the United States."
Never did I say "the President can do anything he wants to that citizen, from eavesdropping on him to throwing him in a military hole without a lawyer, charges or a trial."
The President can eavesdrop without a warrant. This is established by the courts and is without rebuttal, by you or anyone else. If the President determines that the individual is a foreign agent and the person is a United States citizen, then they have recourse to the courts and the complete protection of all their civil rights (due process, probable cause, etc., etc.) The Constitution does not allow the President to suspend habeas corpus except in the case of rebellion or invasion, and as a lawyer you know that full well. So stop making up stuff to try and scare people.
The President isn't a dictator, but he's not a powerless stooge of the almighty Congress either. The Executive is a co-equal branch of government, and all the flummoxry in the world won't change that.
Posted by: antimedia | Thursday, January 12, 2006 at 01:25 PM
Whenever someone starts to refute another person's arguments by calling them a "blowhard idiot," it's a pretty good indication that the person is without anything useful to say. That's certainly the case here, but since Alexandra sent me Antimedia's comment and asked if I wanted to reply, I am doing so.
Antimedia’s two points -- that “FISA wasn't relevant to this situation to begin with” and “FISA itself is an unconstitutional usurpation of the President's Constitutional powers” -- are so facially inane that not even the Administration is bothering to argue them.
Even the Administration acknowledges that its eavesdropping falls within the scope of what FISA prohibits in the absence of judicial oversight. And nobody serious ever claimed that FISA is unconstitutional until George Bush got caught violating it. And even now, almost everyone concedes the constitutionality of FISA.
And this . . .
. . . is simply one of the all-time dumbest - and most disturbed -- things I have ever read. This describes a dictator. By this “reasoning,” if the “Commander-in-Chief” determines that a U.S. citizen is a threat to the country -- a determination made unilaterally, in secret, and with no judicial review possible -- than the President can do anything he wants to that citizen, from eavesdropping on him to throwing him in a military hole without a lawyer, charges or a trial. At this point, it shouldn’t really come as a surprise that there are actually people so depraved that they want this and think that the U.S. has it, but it still does come as a surprise, at least to me.
And by the way, the President is "Commander-in-Chief" only for those in the military. For the rest of the citizenry, he’s just a President. For those of you needing a military hero to worship, I know that’s not quite as glorious a title, but we live in a constitutional republic, not a military dictatorship, and this obsession with calling George Bush the “Commander-in-Chief” rather than the President is as creepy as it is ignorant.
Finally, as for this:
It's both wrong and besides the point. The U.S. Supreme Court ruled in Youngstown that where Congress has the constitutional power to legislate in a particular area (such as regulating spying on American citizens), then the President, like every other citizen, is prohibited from violating that law. The “FISA court” does not have that power to overrule that basic doctrine established 50 years ago by the U.S. Supreme Court, and it did not, of course, purport to.
Posted by: Glenn Greenwald | Thursday, January 12, 2006 at 10:22 AM
Well, I guess Glenn Greenwald has no answer for what's been posted. Interesting.
Posted by: antimedia | Tuesday, January 10, 2006 at 11:49 PM
The only way to fight terror is simply to relax and embrace life.
Hi guys, have you read Younghee Cha's book: After 9/11: A Korean Girl's Sexual Journey? If you haven't, prepare for a wild ride that will leave you with hope about our international situation. After 9/11, a Korean girl faces visa and financial problems while living in L.A. Along the way, she encounters her guilty feelings about her first love.. and embarks upon an erotic odyssey...by turns blissful, dangerous and bizarre. The first thing that struck me about her book is it's not only a journey into sexuality but into being human. It's a search for world peace and toward our longevity as a people. I almost cried when I took in the insights it had into the Iraq war and its relation to undocumented residency - especially the DREAM act. A brilliant merging of sexuality with politics happens when she nakedly performs the crane dance, the dance for world peace and longevity, for a powerful but sexually dysfunctional client.
I laughed out loud reading this and then sat silently mesmerized while absorbing its political and erotic content. Having so throroughly enjoyed it, I believe it's good to share this feeling with others, including those of us here who care so much about America's inclusiveness and ability to transcend a devastating but ultimately petty attack, about our wholeness as people - a variety of ethnicities with a myriad ways of experiencing life. This book concerns our future as a nation that represents all people. Check out more about it at its website - www.youngheecha.com.
Posted by: Steve | Tuesday, January 10, 2006 at 04:59 PM
What? No more comments?
Posted by: antimedia | Tuesday, January 10, 2006 at 11:57 AM
Greenwald is a blowhard idiot on this topic. He massages and squeezes his points to fit his preconceived outcome and then pronounces the outcome to be a foregone conclusion. Well, of course it was. It was foreordained.
Nevermind that much greater legal scholars than Greenwald disagree completely on this topic, and from both sides of the aisle. I have read, and written, a great deal on this topic. I've come to the conclusion that FISA wasn't relevant to this situation to begin with, yet FISA itself is an unconstitutional usurpation of the President's Constitutional powers under Article II, Section I of the Constitution.
As with anything in government, there is more than one way to skin a cat. The Constitutional way is for Congress to declare war and provide the monies for the armed forces and the President to run the military operations, unfettered by Congressional interference other than their Constitutionally-given powers. If Congress doesn't like the way the President runs a war, then refuse to fund it. Go before the public and make your case. Let the President make his. Then let the people decide. (Trust me, Senators and Congresscritter, we'll let you know what we think.)
But Congress doesn't want to reduce funding, because they fear the people. (Re-election is, after all, their primary purpose for being.) So they claim that something the President did is unconstitutional. That he broke the law. That he should be impeached.
They're full of crap. First of all, every President since Jimmy Carter, including Jimmy Carter, has claimed the right to conduct warrantless surveillance and not one peep has been heard from Congress until now. Carter staked his claim mere months after he signed the very law that was supposed to circumscribe his actions. (Like much of what passes for "law", FISA was a feel-good legislation, supposed to comfort the American people that their privacy rights weren't being invaded - never mind that there is no constitutional right to privacy to begin with!)
Secondly, in the course of his duties as Commander-in-Chief, the President can conduct surveillance of anyone who he, in his sole descretion, determines is a threat to the United States. If you're worried about your rights, the Fourth Amendment provides you all the protection you need. Read it. It says "UNREASONABLE" search and seizure, not "ANY" search and seizure. Now guess who gets to decide what's unreasonable - the President - until the courts have specifically defined the case law.
Thirdly, every single court that has addressed the issue, including the FISA court in 2002, has admitted that Congress cannot circumscribe the Presidents Constitutional responsibilities, no matter how much they may desire to.
Finally, this country could never win a war run by Congress. Our founding fathers knew that. That's why they gave that power to the President and balanced it by granting Congress the power of the purse.
Posted by: antimedia | Monday, January 09, 2006 at 07:51 PM
NxN,
Apparently not. After all, I would have thought it stating the obvious to say, that Clinton was impeached not because he had the morals of a tomcat, but that in his...call it his "pursuit of happiness," he perjured himself under oath. That the blow job as such was of no great concern with respect to the general concern of respect for the rule of law, that that is even accepted by many as one of the perks of high office (and as an eminently understandable compensation for having to put up with Hilary all the time), but that the alleged act of perjuring oneself under oath in a court of law was the big deal there. But clearly, to many a fevered Kossack in this favored land, such points were too complex for comprehension no matter how patiently explained, and no matter how slowly one pronounced the big words.
Posted by: Ken Pierce | Monday, January 09, 2006 at 04:12 PM
Is it stating the obvious when I say, the Dem's gripe with Bush is not that he authorized tapping phones, but that in the process he has allegedly broken the law? That the tapping as such is of no great concern with respect to the general concern of infringing civil liberties, that that is even accepted in the given circumstance, albeit grudgingly, but that the alleged act of breaking the law is the big deal here?
Posted by: North by Northwest | Monday, January 09, 2006 at 01:53 PM
As long as folks refuse to admit what is obvious, that the FISA has been no impediment whatever to fighting terror--then they will still live in a fantasy world where "Democrats" will be unpatriotic louts.
Fools.
Posted by: Joseph Marshall | Monday, January 09, 2006 at 06:42 AM