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bettyd
Citizen
Username: Badjtdso
Post Number: 274
Registered: 12-2005
| | Posted on Friday, August 18, 2006 - 10:14 am: | 
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Here is the link to the opinion: http://www.mied.uscourts.gov/eGov/taylorpdf/06%2010204.pdf. 44 pages which I hope to read at lunch. Let's all read it and have an INTELLIGENT discussion about it. |
Strawberry
Supporter
Username: Strawberry
Post Number: 7727
Registered: 10-2001
| | Posted on Friday, August 18, 2006 - 10:56 am: |
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Considering the fact that this comes a week after the terror plot in the UK comes to light, I would say this is a terrible ruling that clearly hurts Democrats come November. The GOP will use this ruling as another example of why the ACLU and left wingers endanger this nation. So, this ruling potentially puts Americans at risk which is bad. The flip side is it hurts Democrats which is good for Americans..
Frankly, I'm not happy about the ruling but at least it'll keep the left down in November.
Just another example of the left shooting themselves in the foot. |
Hoops
Citizen
Username: Hoops
Post Number: 1931
Registered: 10-2004
| | Posted on Friday, August 18, 2006 - 11:03 am: |
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Strawberry - there is zero evidence that the NSA wiretapping program was involved in the UK terror plot and there is zero evidence that the NSA fishing expedition has had any effect in investigating terror operations. Therefore your argument is specious. The program is worthless and it infringes upon our civil liberties.
Just another example of Straw wanting to live in a totalitarian state.
fyi - Half the American population are vote democrat. We live in one country with one citizenship. |
tjohn
Supporter
Username: Tjohn
Post Number: 4709
Registered: 12-2001
| | Posted on Friday, August 18, 2006 - 11:03 am: |
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Bettyd,
I was listening to a commentary on NPR today that suggested the judge in Michigan ignored some precedents in making her decision. So, it may be that her ruling is on weak legal ground. I don't recall, however, if the person interviewed on NPR was a legal expert or just some Bush Administration drone. |
Nohero
Supporter
Username: Nohero
Post Number: 5742
Registered: 10-1999
| | Posted on Friday, August 18, 2006 - 11:08 am: |
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The judge did apply recent precedents, in ruling that the Executive branch has to comply with procedures set out in laws, like FISA, passed by Congress.
It's important to note that all sides in the case agreed to stay the decision, pending review by the appeals court (and, presumably, by the Supreme Court if necessary). So, no surveillances have been stopped by this ruling, at this time.
Mr. Straw is correct, though, in asserting: "The GOP will use this ruling as another example of why the ACLU and left wingers endanger this nation." It will involve lying about what the decision was, and complaining about the U.S. Constitution, but the Administration supporters will probably stoop to doing that. Too bad. |
tom
Citizen
Username: Tom
Post Number: 5566
Registered: 5-2001
| | Posted on Friday, August 18, 2006 - 11:09 am: |
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A really radical ruling would have struck FISA down entirely. As the judge notes, the fourth amendment is pretty explicit that warrants have to be issued before any action is taken, yet FISA allows the government to skip over that requirement under certain circumstances.
This judge's ruling keeps FISA in place. Surveillance can continue. Terrorists can be stopped.
I'll say that again: Surveillance can continue. Terrorists can be stopped. Anyone telling you different has another agenda than your safety.
The only difference is, the proper forms have to be filled out and given to an easy-to-please FISA-panel judge. Considering the tremendous personnel resources at the disposal of the Executive branch, this shouldn't be too much to ask. Most Americans understand this, and understand the need for even a Republican president to obey the law.
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Robert Livingston
Citizen
Username: Rob_livingston
Post Number: 2033
Registered: 7-2004
| | Posted on Friday, August 18, 2006 - 11:18 am: |
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Do a search, and you'll learn that since 1979, of the more than 18,000 requests made to FISA, only five (5!) have been turned down. Not very hard to comply with the constitution AND fight terror, but constitutional rights to privacy has never been an interest of this administration. |
Spinal Tap
Citizen
Username: Spinaltap11
Post Number: 169
Registered: 5-2006
| | Posted on Friday, August 18, 2006 - 12:53 pm: |
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From the former Assistant U.S. Attorney who prosecuted the 1993 WTC bombers:
August 18, 2006, 1:55 a.m.
Judges, Politics, and Security
The awful NSA decision proves, once again, that they don’t mix.
By Andrew C. McCarthy
It would be wrong and regrettable, but it is certainly conceivable that the Supreme Court will eventually find the Bush administration’s NSA Terrorist Surveillance Program unconstitutional. One thing is certain, though. Such a ruling by the high Court will not rely on the handiwork of Michigan federal district judge Anna Diggs Taylor. Her effort yesterday to invalidate the program is a transparently political screed.
Judge Taylor last garnered national attention in 2002 when she was caught trying to rig the outcome of an affirmative-action case. Now, this relic of the Jimmy Carter twilight has fixed her gaze on a war against ruthless enemies who have already attacked the United States massively, serially and globally — an enemy whose leadership is unabashed in telling us, repeatedly, that its devout mission is an exponentially more devastating reprise of 9/11’s carnage.
And what does this jurist see? What she calls “the War on Terror of this administration” — not of the American people, but of George W. Bush — which “[p]redictably” seeks to evade judicial review.
Yes, here we have the thematic history of the administration that has fought to defeat jihadists … as told by a vestige of the administration that first empowered jihadists.
Judge Taylor obviously remains every bit the innovator she was when she creatively contorted the rules for impartial assignment of cases to steer that little school admissions matter away from a judge who, she apparently fretted, was not an ideological fellow traveler. (She backed down when the judge complained publicly about her “highly irregular” gambit.)
After all, who knew that lurking in the penumbras, unnoticed lo these two centuries, has been a First Amendment right to communicate privately overseas, in wartime, with enemy operatives plotting to murder Americans?
To arrive at this novel (ahem) discovery, Judge Taylor simply needed to blow past the long-settled law of standing-to-sue, as well as about 150 years of precedent — reaffirmed by the Supreme Court only a year ago — which holds that lawsuits may not go forward if they run an undue risk of impairing the national defense by publicly revealing our intelligence gathering capabilities.
For a moment, though, let’s leave aside standing. And state secrets. And the bizarre construction of free speech principles. And even Judge Taylor’s preposterous assertion that the Fourth Amendment “requires prior warrants for any reasonable search, based on probable cause” (compare, for example, here, for some of the zillion or so types of searches for which judicial probable-cause warrants are not required). What is truly galling here is Judge Taylor’s stern lecture about “separation of powers,” over which President Bush is portrayed as having run roughshod.
In the real system of separated powers devised by the Framers, the courts of the United States had no role — none — in defending this nation from foreign threats. That was to be the job of the president and the Congress, which is to say, the officials actually accountable to the citizens whose lives were at stake.
While Judge Taylor bleats about the need to respect “checks and balances,” the check our system has designed for national-security matters is political, not judicial. It implicates the right of all citizens collectively — the body politic — to self preservation. It is not concerned with such comparative trifles as the insatiable idio-obsessions of “activists” and gadflies — however theatrically petrified they may seem over the possibility that, for example, their “right” to shoot the breeze with Ayman Zawahiri might be “chilled” if the NSA lends its ears … along with an audience that already includes every foreign intelligence service on the planet.
The standing rules that Judge Taylor shunned are there for a reason. It is not a legalism. It is not some abstruse jurisprudential technicality that you’d an Ivy League law degree to decipher. It is about the right of the American people to govern themselves.
Courts are not there to tell us how to live and tell the other branches how to do their jobs. They are there to redress concrete injuries that directly and uniquely affect individuals. If there is a government policy — such as monitoring al Qaeda’s international communications — that affects all of us more or less the same way, that is not a legal problem. It is a political issue.
Political issues get resolved by political actors. Here, the Framers trusted Americans, not judges. If a president tilts too far in the direction of either civil liberties or national security, the Americans who are consequently imperiled or intimidated have the final check. They can vote him out of office. If the president really shreds the Constitution (as opposed to using his daunting Article II powers to quell enemies and save American lives), citizens can spur congress to impeach him.
Congress, meanwhile, can convene hearings, summon experts, make findings, and enact laws which balance liberty and security. If legislators believe a national security initiative goes too far, they can end it by de-funding it … and face the wrath of their constituents who may well decide that increased safety is worth sacrificing some privacy — hypothetical privacy, by the way, as most Americans aren’t all that interested in chatting privately with Zawahiri.
Democratic self-determination and political accountability — that is the Framers’ gift to us.
Now, here’s what we’ve traded it in for: In the role of Everyman, meet the American Civil Liberties Union, the Council on American-Islamic Relations, Greenpeace, the National Association of Criminal Defense Lawyers, and other self-styled “public interest” groups which, in reality, have very different ideas from the public about how our government should prosecute a war it is in our nation’s vital interest to win.
And in the role of decision maker, meet Judge Taylor — worse than her sponsor, President Carter, because we are powerless to vote her out of office when she enters the political arena and renders us defenseless.
The president of the United States needing Judge Anna Diggs Taylor’s permission to penetrate the communications of a hostile alien terrorist network scheming to slaughter Americans. That was not exactly what Madison had in mind.
— Andrew C. McCarthy is a senior fellow at the Foundation for the Defense of Democracies.
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dave23
Citizen
Username: Dave23
Post Number: 1962
Registered: 5-2001
| | Posted on Friday, August 18, 2006 - 12:54 pm: |
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tjohn,
I heard that interview, too. The interviewee was a lawyer from the Clinton admin. |
Robert Livingston
Citizen
Username: Rob_livingston
Post Number: 2035
Registered: 7-2004
| | Posted on Friday, August 18, 2006 - 12:58 pm: |
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Anytime anyone disagrees with Bush it's "a transparently political screed." Lame.
Spinal: For someone who vowed to take some time off, your posts sure are occupying lots of space. I guess it's true that wingnuts never stick to their promises. |
Rastro
Citizen
Username: Rastro
Post Number: 3763
Registered: 5-2004
| | Posted on Friday, August 18, 2006 - 1:03 pm: |
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Tap, while I don't doubt the possible legal weakness of the case, one must also look at the source of the article. Mr. McCarthy is not simply the prosecutor of the first WTC bombing (which makes him sound like everyman's prosecutor). He is also a fellow at a neoconservative think tank. So he is not exactly a non-partisan player in this.
http://rightweb.irc-online.org/profile/1475
(not a non-partisan source either, but that they note their sources leads me to trust the information there slightly more than others) |
Spinal Tap
Citizen
Username: Spinaltap11
Post Number: 170
Registered: 5-2006
| | Posted on Friday, August 18, 2006 - 1:06 pm: |
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It will be enjoyable reading the 6th Circuit’s opinion shredding this buffoonery. |
Spinal Tap
Citizen
Username: Spinaltap11
Post Number: 171
Registered: 5-2006
| | Posted on Friday, August 18, 2006 - 1:08 pm: |
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Amateur Hour?
A judge’s first-year failing-grade opinion.
By Bryan Cunningham
The Honorable Anna Diggs-Taylor probably means well. The lone judge in American history to order a president to halt in wartime a foreign-intelligence-collection program that has undoubtedly saved lives probably sympathizes with the journalists, and others, who are suing to stop the Terrorist Surveillance Program (TSP) in which NSA intercepts foreign-U.S. terrorist communications. She probably feels in her heart the program is wrong, and undoubtedly hears the footsteps of the federal judicial panel moving towards taking this case away from her and consolidating it with others.
We can sympathize with her motives, and even share some of her gut feelings of uneasiness about the program. But we cannot accept the stunningly amateurish piece of, I hesitate even to call it legal work, by which she purports to make our government go deaf and dumb to those would murder us en masse. Her bosses on the Court of Appeals and/or the United States Supreme Court will not accept it.
Much will be said about this opinion in the coming days. I’ll start with this: I wouldn’t accept this utterly unsupported, constitutionally and logically bankrupt collection of musings from a first-year law student, much less a new lawyer at my firm. Why not? Herewith, a start at a very long list of what’s wrong with Judge Taylor’s opinion.
Process Fouls. When you sue your plumber over a disputed $50 invoice, before deciding who wins, the judge is required to jump through some minor constitutional hoops like actually hearing evidence (as opposed to press reports), holding hearings, and reading and understanding the briefs filed and the laws at issue. Judge Taylor appears to have taken none of these rudimentary steps before issuing one of the most sweeping wartime legal rulings in our nation’s history. Experts on both sides agree it is impossible to decide the crucial Fourth and First Amendment issues in this case without detailed, factual knowledge of precisely what the government is doing (see, e.g., the brief I filed with the Washington Legal Foundation, at www.morgancunningham.net, and the excellent testimony of David Kris, at http://www.fas.org/irp/congress/2006_hr/index.html). Judge Taylor apparently needs no more facts than what she reads in the papers.
Worse, the judge clearly failed to do enough homework to understand the Foreign Intelligence Surveillance Act itself, much less the Fourth Amendment. She gets basic provisions of the statute itself wrong, e.g., apparently believing that a provision explicitly dealing with foreign agent/non-U.S. persons communications constitutes an “exception” to FISA’s warrant requirements. She also seems to make the elementary and fatal mistake made by many commentators, that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply false. NSA cannot lawfully, under FISA, listen to a single syllable of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops. These basic errors could have been corrected had the court bothered to gather any evidence or hold substantive hearings.
More worrisome still are the judge’s breathtaking mistakes in analyzing the Fourth and First Amendments—errors that would earn our first-year law student an “F.” Here’s one of several examples: The judge asserts that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” She cites no legal authority whatsoever for this colossal misstatement of the law, because none exists. Instead, there are numerous situations where our courts have found no prior warrant is required, so long as a search is “reasonable.” Fatal to her position is the very Supreme Court case she herself cites. This landmark 1972 electronic-surveillance decision, the Keith case, makes clear that, though it establishes a warrant requirement for purely domestic security cases (decidedly not what the TSP is, raising the alarming possibility the judge may think the TSP is a “domestic” program), the Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government’s legitimate needs, such as protecting us from attack, against other constitutional interests.
Lest there be any doubt as to whether Keith supported Judge Taylor’s view about the warrant requirement for communications with overseas terrorist groups, the Keith court stated that “the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”
While Keith at least left open the question, a post-FISA case, also cited by Judge Taylor herself (In re Falvey), could not have more clearly dispensed with her claimed warrant requirement: “When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”
Apparently Judge Taylor failed to read that portion of the Falvey opinion. She makes similarly striking mistakes on the issues of standing and separation-of-powers. Which brings us to the heart of the problem with the judge’s missive.
Ignoring Contrary Authority. Under legal-ethics rules, deliberately failing to call to a court’s attention legal authority contrary to one’s position is grounds for disciplinary action. In addition to the above, here are several more examples of this unpardonable legal sin in Judge Taylor’s opinion.
Appeals Court Cherry-Picking. The judge relies heavily on the D. C. Circuit Court of Appeals plurality (less than majority) opinion in Zweibon v. Mitchell. That case suggests in dicta (language not necessary to decide the case, and, therefore, of no precedential value) that all electronic surveillance, even for foreign intelligence involving an overseas connection, may require prior warrants. Judge Taylor fails to mention, however, that, while Zweibon didn’t actually reach this question, the Foreign Intelligence Surveillance Court of Review (the appellate court set up explicitly to have the foreign-intelligence and national-security expertise Judge Taylor clearly lacks) did. Here’s what it said (in 2002): “[A]ll . . . courts to have decided the issue, held the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.’
Utterly ignoring this 2002 FISA Court of Review opinion, as well as the numerous 1970s-’80s federal appeals and district court decisions directly opposed to her position, Judge Taylor offers instead an extended discussion of a 1765 case from England.
Selective Reading Redux. The judge discusses at length Justice Jackson’s concurring opinion in Youngstown Sheet and Tube, without bothering to mention:
—that Justice Jackson himself, in that very opinion, disavowed the application of the opinion beyond that case’s primarily domestic context (seizure of U.S. steel mills in the face of a union strike);
—that our courts long after Youngstown emphasized its limitations to primarily domestic cases and that other legal authorities more appropriately govern primarily foreign-affairs/foreign-intelligence-collection cases, such as the TSP; or
—most importantly, the entire line of Supreme Court and other decisions, most famously including Curtiss-Wright Export, cited many times since Youngstown, making clear the president’s constitutional primacy in foreign-affairs/foreign-intelligence collection, upon which neither Congress nor the courts may intrude.
Lawyers and judges are free to argue that contrary authority does not control a particular decision. They are not free ethically to disregard the vast majority of cases rejecting their position, selectively citing the single case arguably supporting them.
Trivial Pursuit. Perhaps most disturbing about the judge’s opinion is the trivial way it treats the Fourth and First Amendments to our Constitution. In landmark cases balancing wartime needs with cherished principles in the Bill of Rights, our great judges and justices have painstakingly analyzed all applicable authority, soberly balancing our crucial national interests and values. Judge Taylor spends a total of three double-spaced pages addressing the Fourth Amendment and little more than two addressing the First Amendment. Her reasoning, to the extent one can follow it, is little more than one would find in watching a surreal “Schoolhouse Rock” episode. The Fourth Amendment prohibits unreasonable searches. All searches without warrants are unreasonable (which, as noted above, is flatly wrong). Therefore, with no case support cited, Judge Taylor finds the TSP unconstitutional. The First Amendment protects free speech, which, defying the dictionary meaning of the word, she asserts the TSP “regulates.” FISA prohibits targeting persons for surveillance solely for activities protected by the First Amendment (FISA, of course, being a statute, not a constitutional provision, and the administration having stated publicly they do not target individuals on that basis). Therefore, says Her Honor, the TSP is unconstitutional.
Such trivial (if not incomprehensible) legal analysis would be unacceptable in our $50 plumbing-bill case. Using it to justify shutting down a program protecting us from terrorist attack in war is tantamount to an abrogation of the judge’s oath to support and defend the Constitution. Though unlikely based on what has been publicly reported, it is possible that a court armed with all the facts could conclude that the TSP runs afoul of the First or Fourth Amendments. It is not possible to decide that based on press reports and platitudes.
Amateur hour? Judge Taylor, a law professor, has been on the bench since 1979. She is decidedly not an amateur. So, how to explain her first-year failing-grade opinion? Regrettably, the only plausible explanation is that she wanted the result she wanted and was willing to ignore and misread vast portions of constitutional law to get there, gambling the lives and security of her fellow Americans in the bargain.
Whatever Judge Taylor’s motives, it is critical to understand the impact of her decision, were it allowed to stand. Among many damaging results, the Terrorist Surveillance Program, publicly credited not 72 hours ago with helping to prevent the “9/11 Part 2” British airline bombings, will be shut down and our enemies will know it. Worse, neither politically accountable branch of government (even working together) would be able to modify FISA in a way that did not require prior judicial warrants based on probable cause and particularity as to the person targeted. In other words, there would be no lawful way, short of amending the Constitution, to ever collect catastrophic-terrorist-attack warning information unless we knew in advance it was coming, and the identities of the precise individuals who were going to communicate it.
As Judge Taylor’s new favorite justice, Robert Jackson himself, warned, the courts should not “convert the constitutional Bill of Rights into a suicide pact.” I will put my daughters to bed tonight confident that the Court of Appeals and our Supreme Court will not allow Judge Taylor’s giant step in that direction to stand.
— Bryan Cunningham served in senior positions in the CIA and as a federal prosecutor under President Clinton, and as deputy legal adviser to the National Security Council under President George W. Bush. He is a private information security and privacy lawyer at Morgan & Cunningham LLC in Denver, Colorado, and a member of the Markle Foundation Task Force on National Security in the Information Age. Along with the Washington Legal Foundation, he filed an amicus brief in this case, and has testified before the Senate Judiciary Committee on the Terrorist Surveillance Program.
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ae35unit
Citizen
Username: Ae35unit
Post Number: 189
Registered: 2-2006
| | Posted on Friday, August 18, 2006 - 1:12 pm: |
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Spinal and Straw seem very willing to turn our rights given to us by our constitution over to the government. There is no case to make about Bush's actions being correct. He broke the law and violated the constitution. The canard about not having the time to get a warrant is a lie. They can wiretap first and get the warrant later. So, the reasoning that the government should be able to break the FISA law is a big lie because theoretically, playing by the rules is just as fast and efficient as breaking the law. So bottom line to the wingers: Bush is either doing wiretaps that a court would not approve of or this administration has total contempt for the law, or both.
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Rastro
Citizen
Username: Rastro
Post Number: 3764
Registered: 5-2004
| | Posted on Friday, August 18, 2006 - 1:12 pm: |
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Tap, I'm curious. How can anyone have standing to sue for this issue? Since there are no warrants, no citizen can know who has been tapped. And since one cannot sue unless they know they have been tapped and have been injured because of it, there is no way to have standing to sue. Awful convenient.
And the idea that we must endure additional years of what may be illegal activity simply because, in McCarthy's opinion, our only remedy is to vote Bush out of office, is bizarre. |
Rastro
Citizen
Username: Rastro
Post Number: 3765
Registered: 5-2004
| | Posted on Friday, August 18, 2006 - 1:15 pm: |
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Tap, any stories from sources that are not related to the neocons? I'm not doubting the accuracy of their facts. I'm curious why those condemning this are politically affiliated with the neocons, and not exactly legal scholars.
If the situation were reversed, and it was a right wing judge stopping the actions of a liberal President, and everyone was only posting articles from obviously biased liberal sources, you'd be all over it. |
Spinal Tap
Citizen
Username: Spinaltap11
Post Number: 172
Registered: 5-2006
| | Posted on Friday, August 18, 2006 - 1:18 pm: |
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(Transferred from another thread)
For anyone who is interested, here is the actual law. Take particular note of the title of 50 USC 1802 (FISA) - Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court :
http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/subchapters/i/sect ions/section_1802.html
If I’m not mistaken, the administration followed this to the letter. And just so there is no confusion regarding the terms used here, such as what constitutes a “foreign power”, here is 50 USC 1801 for the definitions:
http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/subchapters/i/sections/section_1801.html
As you can read, a foreign power or agent of a foreign power can be located in the U.S.
Did Clinton, Bush 41, Reagan, and Carter all break the law too? Because they all did the same thing. As a matter of fact, I think one of the most impassioned defenses of warrantless electronic surveillance came out of the Clinton Administration. And if laws were broken, how come no one has been charged?
Regardless, many would argue that FISA (along with the War Powers Act) which has never been challenged in court, is itself an unconstitutional violation of the president’s explicit constitutional authority and responsibility as the commander in chief to protect the country. If the county is attacked, no one is going to ask the legislature how this happened, and certainly no one is going to ask the courts, they are going to ask the president. The responsibility is the executive’s and the executive’s alone due to the fact that when facing a threat, the nation cannot have 50 commanders in chief in the Senate, 435 in the House, and however many federal judges there are. That’s not to say they don’t have an important role to play but it’s a limited one.
I disagree with the notion that the commander in chief has to get a permission slip from a judge before gathering intelligence information on our enemies during wartime. Of course, if you hold the belief that the biggest threat to our national security is not terrorism or rogue states but rather our own government, especially when there is a Republican administration, then I can see how someone would think this is reasonable.
Furthermore, FISA is a Cold War relic that grew out of the abuses of the 1960’s when this technology was new (like the Kennedy Administration’s tapping MLK). It was designed to uncover espionage in an age when telecommunication consisted of Ma Bell issued rotary phones in people’s kitchens. It was not designed to defend against terrorists attempting to exterminate us while using pre-paid cell phones, Blackberrys, and the Internet.
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tom
Citizen
Username: Tom
Post Number: 5567
Registered: 5-2001
| | Posted on Friday, August 18, 2006 - 1:19 pm: |
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What does the dangerousness and determination of a subject of a wiretap have to do with the law? Does FISA have in it some kind of exception like, "except when you're really really scared"?
Maybe McCarthy's most fatuous line is "Congress, meanwhile, can convene hearings, summon experts, make findings, and enact laws which balance liberty and security." This Congress has refused to convene hearings, doesn't listen to experts, and has withheld or blocked findings. They did, however, enact a law to balance liberty and security -- FISA itself.
A law which the Bush administration has proudly disobeyed. And therein lies the problem. This has always been a country of laws, not men. As soon as we allow laws to be ignored because we trust or admire whomever happens to be President at the time, we're on the slippery slope. Right now, it's not under debate that we're under threat by a very real and dangerous enemy. However, that in itself can't change the law or allow an administration to ignore the law. There have been scares like this before that we've survived -- anarchists in the early 20th century, various red scares, nativist paranoia against Irish or German immigrants, etc. etc.
Next time, it might not be so clear. It might be some vague threat against a shadowy enemy that can't be revealed at all for national security purposes so -- just trust us -- you have to let the government do what it will. Don't be so willing to ditch the Constitution just because you're scared of something. |
Rastro
Citizen
Username: Rastro
Post Number: 3766
Registered: 5-2004
| | Posted on Friday, August 18, 2006 - 1:24 pm: |
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Tap, did you actually read the law that you keep posting?
Quote:(a)(1) Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a
court order under this subchapter to acquire foreign intelligence
information for periods of up to one year if the Attorney General
certifies in writing under oath that -
(A) the electronic surveillance is solely directed at -
(i) the acquisition of the contents of communications
transmitted by means of communications used exclusively between
or among foreign powers, as defined in section 1801(a)(1), (2),
or (3) of this title; or
(ii) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this
title;
(B) there is no substantial likelihood that the surveillance
will acquire the contents of any communication to which a United
States person is a party; and
(C) the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under
section 1801(h) of this title; and
if the Attorney General reports such minimization procedures and
any changes thereto to the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence at
least thirty days prior to their effective date, unless the
Attorney General determines immediate action is required and
notifies the committees immediately of such minimization procedures
and the reason for their becoming effective immediately.
(2) An electronic surveillance authorized by this subsection may
be conducted only in accordance with the Attorney General's
certification and the minimization procedures adopted by him. The
Attorney General shall assess compliance with such procedures and
shall report such assessments to the House Permanent Select
Committee on Intelligence and the Senate Select Committee on
Intelligence under the provisions of section 1808(a) of this title.
(3) The Attorney General shall immediately transmit under seal to
the court established under section 1803(a) of this title a copy of
his certification. Such certification shall be maintained under
security measures established by the Chief Justice with the
concurrence of the Attorney General, in consultation with the
Director of Central Intelligence, and shall remain sealed unless -
(A) an application for a court order with respect to the
surveillance is made under sections 1801(h)(4) and 1804 of this
title; or
(B) the certification is necessary to determine the legality of
the surveillance under section 1806(f) of this title.
(4) With respect to electronic surveillance authorized by this
subsection, the Attorney General may direct a specified
communication common carrier to -
(A) furnish all information, facilities, or technical
assistance necessary to accomplish the electronic surveillance in
such a manner as will protect its secrecy and produce a minimum
of interference with the services that such carrier is providing
its customers; and
(B) maintain under security procedures approved by the Attorney
General and the Director of Central Intelligence any records
concerning the surveillance or the aid furnished which such
carrier wishes to retain.
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ae35unit
Citizen
Username: Ae35unit
Post Number: 190
Registered: 2-2006
| | Posted on Friday, August 18, 2006 - 1:42 pm: |
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Imagine this situation in a vacuum. Nobody knows who's party anyone is affiliated with or anything. Here's the scenario:
A president of the United States violates his oath of office. He does this in numerous ways. He and his administration are constantly engaged in Orwellian lies. He's caught time and time again but a manipulated media will not report the events appropriately for many reasons. It becomes clearer and clearer that this administration is so in debt to their corporate enablers that the constitution, and the nation, is under threat and endangered.
OK, I could have done a better job creating a storyline, but pretend this was an outline for a novel. Forget about your personal politics.
It sure sounds to me like the right wing on this thread would be in favor of my fictional presidents behavior. What does that make you?
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Spinal Tap
Citizen
Username: Spinaltap11
Post Number: 174
Registered: 5-2006
| | Posted on Friday, August 18, 2006 - 1:44 pm: |
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You must not have read the definitions in 1801. I posted a messed up link so here it is again:
http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/subchapters/i/sect ions/section_1801.html
An "Agent of a Foreign Power" or "Foreign Power" can be in the U.S. and is not necessarily a "United States Person".
My lunch break is over and my phone is ringing so I'll report back later this weekend.
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tom
Citizen
Username: Tom
Post Number: 5568
Registered: 5-2001
| | Posted on Friday, August 18, 2006 - 1:47 pm: |
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Quote:Furthermore, FISA is a Cold War relic that grew out of the abuses of the 1960’s when this technology was new (like the Kennedy Administration’s tapping MLK). It was designed to uncover espionage in an age when telecommunication consisted of Ma Bell issued rotary phones in people’s kitchens. It was not designed to defend against terrorists attempting to exterminate us while using pre-paid cell phones, Blackberrys, and the Internet.
This is the "quaint" argument again, as when Bush reminded us that the law was written in 1974 (or something) and it's now 2006. So older laws just wither on the vine, apparently.
These from the same guys trying to put the 10 Commandments up in every classroom. Talk about old! |
Robert Livingston
Citizen
Username: Rob_livingston
Post Number: 2037
Registered: 7-2004
| | Posted on Friday, August 18, 2006 - 1:47 pm: |
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"My lunch break is over and my phone is ringing so I'll report back later this weekend."
Can't wait to read the 4,000 word essays cut and paste from the RNC website. You're quite a copy and paster. One of the best MOL has ever seen. I eagerly await later this weekend to see what you copy and paste. I'm going to mark it on my calendar. |
argon_smythe
Citizen
Username: Argon_smythe
Post Number: 902
Registered: 5-2001
| | Posted on Friday, August 18, 2006 - 1:51 pm: |
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Let's all start taping all our conversations and sending them to the white house, it would really help the war effort and since we're voluntarily sending them, our president won't get in trouble.
People who don't send tapes can be rounded up and shipped to Gitmo, 'cause that's pretty suspicious behavior.
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dave23
Citizen
Username: Dave23
Post Number: 1965
Registered: 5-2001
| | Posted on Friday, August 18, 2006 - 3:16 pm: |
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Tap,
"Did Clinton, Bush 41, Reagan, and Carter all break the law too? Because they all did the same thing."
This. Is. Not. True. No matter how many times Drudge, Rush and Hannity repeat it, it is not true.
The wiretap laws signed by Clinton and Carter explicitly stated that warrantless searches could not be conducted on American citizens.
Now, can you stop repeating that tripe? |
bettyd
Citizen
Username: Badjtdso
Post Number: 276
Registered: 12-2005
| | Posted on Friday, August 18, 2006 - 3:57 pm: |
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What a bunch of baloney from that former Assistant United States Attorney above. "Democratic self determination and political accountability-that is the framers' gift to us." That and a hell of a lot more. I guess in his world there's no use for a judicial branch at all. I seem to recall from Constitutional Law 101 that the framers also left us an independent judiciary. The unprecedented recent assaults on the judiciary by the right every time a decision is rendered that they don't like (which is rare) is frightening.
He complains that the president of the United States needs Judge Ann Taylor Diggs's permission to conduct surveillance. Damn right he needs it. That is exactly what the framers had in mind. He complains "we are powerless to vote her out of office when she enters the political arena and renders us defenseless." Another conservative who wants absolutely no oversight of the Bush Administration and is willing to throw the Constitution and separation of powers under the bus because his guy is in office.
Not satisfied with control of the executive and legislative branches, they want every judge to fall into line also. |
Foj
Citizen
Username: Foger
Post Number: 1700
Registered: 9-2004
| | Posted on Saturday, August 19, 2006 - 12:26 pm: |
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Rastro... why bother?
All this was gone thru earlier in the year. Its just another MOLer who either wasnt there for the original thread, or an MOLer who doesnt remember that far back.
Tom.. FISA has been ammended - IIRC- 3 times during the Bush Administration. I would think that, legislativly, the far right has gotten what it wants...
...........................
This DEM judge blew it, her ruling is horrid. I think she should take a do-over. This obviously wont stand. |
joel dranove
Citizen
Username: Jdranove
Post Number: 919
Registered: 1-2006
| | Posted on Monday, August 21, 2006 - 3:29 pm: |
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the Washington Post editorial page savaged the ruling under the headline "A Judicial Misfire."
"Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful."
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joel dranove
Citizen
Username: Jdranove
Post Number: 920
Registered: 1-2006
| | Posted on Monday, August 21, 2006 - 3:32 pm: |
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the Washington Post editorial page savaged the ruling under the headline "A Judicial Misfire."
"Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA's program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful."
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Foj
Citizen
Username: Foger
Post Number: 1707
Registered: 9-2004
| | Posted on Monday, August 21, 2006 - 9:44 pm: |
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Jonathon Turley has made the case that Bush broke the law. Taylor could have stolen a page from Turley. I am changing my previous opinion about Taylors ruling not standing, the Supreme Court may not over turn her ruling. Either way it will be 5-4 or 4-5. I not sure if Bush has 5 votes to quash this. If Roberts votes against Alito, Taylors ruling will stand, 5-4. |
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