This Week's Debate: Domestic Surveillance

The founding principle of our great nation is that a government's most fundamental responsibility is to secure the natural rights of the people. Also called inherent or unalienable rights, these include the rights to life, liberty and property.

It is this vital governmental role that is at the crux of the debate over warrantless wiretapping of U.S. persons. Are our natural rights best protected by a strong executive asserting wartime powers (in the absence of a formal declaration of war)? Or are they better protected by a system of checks designed to ensure that no one branch of government violates these rights under the guise of securing them?

Within this framework, we can examine other key questions:

· Where is the line between Fourth Amendment rights and national security?
· When, if ever, is it legitimate for the president to bypass the courts in a matter over which they, by law, have jurisdiction?
· How can we ensure effective oversight of secret government programs?
· What is the best way to ascertain whether these wiretaps were conducted lawfully? A Congressional investigation? A Supreme Court case? (If the latter, what are the possible routes to the Supreme Court?)
· What lessons can we take from past legal challenges to executive power and electronic surveillance?

More peripheral, but nonetheless important, considerations include the role of the press in breaking and covering a story like this, and the effect of political gamesmanship on how it will all play out. Over the coming week, we'll talk more about the decision by the New York Times to publish the story when it did, and we'll try to separate partisan political attacks from legitimate concerns for natural rights and for national security.

For the facts providing the basis for this debate, see the earlier post. And if you have another subject you want to write about for The Debate, don't wait another minute -- just click here.

By Emily Messner |  December 30, 2005; 11:09 AM ET  | Category:  This Week's Issue
Previous: Judicial Interference Justification Doesn't Hold Water | Next: WWFFD? Another Perspective on Surveillance

Comments

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How about this key question:

Did President Bush break the law?

Whether it is a strong executive or a strong system of checks and balances that best protects our rights, the question of which system *should* exist is different from the question of which system *does* exist.

If President Bush wants to change wiretapping law via the democratic process established by our nation's founders, fine. He can go to Congress and ask for new laws, or even a constitutional amendment. But it is not okay for him to escheww this process and break the law.

By eschewing the democratic process, and by choosing to break the law rather than trying to change it, President Bush denied the American people their right to have exactly the sort of policy debate about domestic surveillance that you are trying to initiate on this blog.

Congress should hold him to account.

Posted by: Nick | December 30, 2005 04:30 PM

I've always wondered why we even have an Executive branch. Why can't Congress hire and fire an Executive to carry out their will on a yearly basis, like a football coach? His 'team' would be the cabinet heads.

Posted by: Turnabout | December 30, 2005 04:40 PM

Turnabout:

President Tom Delay, that's why.

Posted by: Will | December 30, 2005 04:41 PM

I'm surprised that reporters aren't angrier about this. Think about it; who do you think are US citizens making calls to known terrorists overseas? Journalists, lawyers and terrorists (or wannabes).

Which of those would the FISC not grant warrants for? Journalists and lawyers.

The lawyers are pissed, why aren't the reporters? You think they didn't spy on you because you are protected? If so, let me tell you about a terrorist plot to blow-torch the Brooklyn Bridge.....

Posted by: Joshua Danowitz | December 30, 2005 04:43 PM

Emily writes: "The founding principle of our great nation is that a government's most fundamental responsibility is to secure the natural rights of the people. Also called inherent or unalienable rights, these include the rights to life, liberty and property."

As part of that, as the political philosphers whose thoughts America based it's Republic on noted: Natural rights can only be enjoyed in a state where government supplies the security and order needed to prevent those rights from reverting to a chaotic state of nature and thus denied to the people. The social contract Hobbes and Rousseau floated differed only in the degree of security needed, not it's necessity. Locke, who pushed "natural rights" the strongest also conceeded they were unexercisable without the creation of a state empowered to protect the people from predators that would infringe on their liberties and that due to that, liberties were never absolute but controlled so liberties did not trammel others liberties or destroy the security of others through absolute exercise.

Edmund Burke, the great Irishman, wrote extensively on how a nation does this balancing act through his commentary on the Grand-Daddy of all Revolutions in "Reflections on the Revolution in France".

We need security because as Burke noted, war and malice fom without or within strip away those liberties totally.

We realized that ourselves on 9/11 as we contemplated the only, awful choice left out of all the lost civil liberties the doomed above the plane impact zones at the WTC had. Jump and become meat and bone paste? Or burn to death? My second cousin has a jacket he keeps in a liner. He was a passerby on 9/11 that was splattered by the remains of a jumper that landed 35 feet or so away from him. The jacket, uncleaned except for a piece taken as DNA sample, is his reminder that liberties and lives are taken away in war until the enemy is vanquished.

Charles Fried of Harvard Law School and a former Solicitor General and Mass Supreme Court Justice weighs in on the legalities in a Boston Globe op-ed. Fried notes that an area of dissonance is that the 4th is crafted for ex post facto search for evidence in prosecuting a criminal case but the intelligence gathering is searching for unlawful combatants and others BEFORE they can kill the American enemy in Jihad.

Good overview article:

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/12/30/the_case_for_surveillance/

Amplifying on Fried, we empower Customs and the Coast Guard to do warrantless searches to keep harmful things and people out of the country. 28 areas of pre-approved warrantless searching authority exist in US jurisprudence. Searching out and identifying the enemy before they can kill certainly falls in the same category as the ability of the Coast Guard to search vessels and passengers with no warrant or classic 4th "suspicion a crime has already been committed". And Fried notes the surveillance is done by computers with ultrasecret algorithms and pattern recognition technology on hundreds of millions of signal intercepts daily.

Details of that must not ever fall in enemy hands through public disclosure from ACLU lawyers and/or enemy sympathizers getting those secrets from court discovery. There is also the physical impossibility of having hundreds of millions of judges hired and preapproving warrants for hundreds of millions of computer analyzed intercepts - if anally fixated civil liberties extremists insist warrants must accompany any phone intercept.

And the problem with calls going to suspicious addresses is we have no idea from the phone number if the person is a foreign Al Qaeda fighterhere, an American Al Qaeda fighter here, an innocent foreigner here or an innocent American here. Or perhaps all 4 categories overseas inc. an innocent American making a call from his base in Iraq. Only when those calls are flagged and a human investigates do we - and not always because terorists swap phones and do single use of phones (More now thanks to the NYTimes and ACLU) - will we learn the source and know if there are any Constitutional protections we have to watch for.

The alternatives are to (2)continue 70 years of attempting to scrutinize and discover the enemy and it's American allies....or (2)to stop listening to anyone until the "crime" of planes flying into buildings, a suicide bomber hitting our troops, a nuke bomb detonated in a US city, etc. happens so Lawyers can Leap to the Lead in war-fighting....and the Wisdom of Judges can be brought to bear in Dealing with the war crimes, if any, the enemy commits through warrants and rulings...

Of course, by now news is out that Justice Dept is investigating the NSA leaks. And word that they have begun a review of the CIA secret prisons story to see if felonies were committed in that case as well from press leaks. And it is thought that they may also go for who leaked the nuclear radiation monitoring response we did after 9/11. It is going to be a little hard for media and Democrats that called for Republican heads over the "felony" of revealing Plames ID, a "top secret" - to now say that other undermining of American national security secrets is OK and shouldn't be investigated because it "chills" the media.

The NSA one is the worst. The criminal penalties, if a grand jury and special prosecutor are assigned, are far greater than the felony of revealing the ID of a covert agent. The NSA, and any one privy to NSA sources and methods, like WH staff, CIA, or Congress Reps cleared for oversight all sign legal documents that declare they are aware a 20 year+ prison stretch and hefty fines await anyone caught leaking such top secret material. And any reporter knowing ID can be queried under Grand Jury immunity so they can't take the 5th and I imagine that the NYTimes legal department after the multimillions they coughed up in the Judy Miller defense - are shitting bricks now - the demands they made to discover the leaker of Plame's name so as to destroy the evil Bush-Hitler have backfired badly. "'Dos chickens have come home to roost", as their buddy Ward Churchill famously said.

Posted by: Chris Ford | December 30, 2005 05:48 PM

Chris-

I can't even tell if I disagree with you yet or not because I have been utterly incapable of extracting the answer to the following question from any of you:

What oversight do you suggest?

Please answer without expunging on me a bunch of asinine facts about YOU that I already know. I know you hate liberals. I know you hate the ACLU. I know what you think about leftist politics. Your opinion on these, though interesting, is getting old. I'm more interested in solutions to what this never-voted-for-a-Democrat-and-thus-blameless-from-your-attacks views as a serious problem: The willingness of half this country to choose politics over EITHER national security OR civil liberties.

Let's start discussing ways to ensure the infinite lifespan of both.

Posted by: Will | December 30, 2005 06:28 PM

Oh, I said I wouldn't answer any more of Chris Ford's posts, but here goes:

"Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves." William Pitt

You can convince me that the border patrol can conduct searches, openly, according to defined regulations, and with oversight. You can convince me that the government can data mine, openly, according to defined regulations and with oversight. But you can't convince me that a small cabal of men can secretly wiretap with no oversight and no regulations. But, you say, its OK because its only to protect us from terrorists! Well now, with no oversight how would you know that? How would you know who they're tapping/mining and what they're doing with the data? Because Bush told you so? Please, I'm ROFLMAO.

You also can't convince me that it is a surprise to al Qaeda that we're listening to their phone calls. You can't convince me that when al Qaeda plans on blowing something up and the plot is foiled, that they couldn't figure out that the US govt was on to them in some way. Duh!

This is what will make us safe from terrorists? This adminstration has utterly failed to protect our ports and borders, our chemical and nuclear plants, our economy, our energy supply/needs, our reputation and most everything else on the 9-11 commission list. Yet we are supposed to say that the terrorists knowing we can tap phones is supposed to make us less safe and the person who told is a traitor? Get a clue. If the terrorists didn't know we were listening they'd be saying "we're on for the ...terror plot tomorrow at 2, meet at ... place and bring the bomb, not "your order is ready, please pick up as arranged". or some such.

And now, because of Bush's treason, guilty men may go free.

Yes, its galling when criminals go free because of a technicality. But that was the decision of the founding fathers after the way citizens were treated under British law. (You know the old William Blackstone "cliche" - It is better that ten guilty persons escape than that one innocent suffer."

A lot of blood has been shed by very brave people over the past 230 years to defend that cliche, our way of life. I would not have their deaths be in vain simply because a few people were too scared for their lives to pick up the torch in this generation to defend our liberty.

It appears that our generation, rather than sending brave young men to die to defend our liberty, will have to be brave enough to defend it ourselves in our homes and workplaces.

Because I believe that Americans are much braver than this President and Chris Ford are. I believe that when they understand the facts - that they might have a choice between living in tyrrany or dying from a terrorist attack, are willing to take their chances with the terrorists rather than the tyrranists. Given this administration's utter failure to protect our glarlingly obvious weak links, the attack is likely to happen even if we do surrender our liberty to the tyrranists.

Posted by: patriot 1957 | December 30, 2005 06:47 PM

Chris Ford's answer is far too long, abstract and obtuse to be anything more than a cheap parlour trick attempt at diverting the reader away from the real issue which is-Why did the Bush administration do what it did when there were already legal mechanisms in place via the courts to do exactly the same thing? and was this action Constitutionally legal?

The Executve Branch of the US government of the last five years makes the hair on the back of my neck stand on end.

Posted by: Tom | December 30, 2005 06:52 PM

If this President can claim that FISA is unconstitutional and therefore doesn't apply to him because of national security, why couldn't Bill Clinton have claimed on similary grounds that the perjury statutes could not constitutionally be applied to him while he was in office?

Posted by: Slangwhanger-in-Chief | December 30, 2005 07:56 PM

Patriot 57, what you wrote was very well said. As you say, ultimately the choice on how to balance civil liberties and security is _ours_ (the people's) to make. Experts, security personnel, and civil libertarians can tell us what the consequences are likely to be if we choose one road or another; but they shouldn't be the ones to decide which path to choose. That choice should be ours, since we (all) are the ones who will face the consequences. And for us to decide, there has to be a public debate - not a secret decision by the executive branch to which most of the legislature and judiciary are not even privy.

What makes Bush's actions here even more disturbing is the fact that Bush and his lawyers haven't yet answered the question, "What _can't_ you legally do?" They claim sweeping authority, and give us no idea where they think it stops, or even whether they think it stops anywhere.

At this point, following the administration's own publicly stated positions, the executive would legally have all the power that it would need to establish a police state. If it can declare anyone an enemy combatant anywhere, even a US citizen in the US, and if there is no meaningful opportunity to contest that designation, then, in effect, the administration can detain, imprison, and strip all rights from any US citizen or group of US citizens anytime it wants to, no matter what its real motivation is. And if the administration can spy on anyone so long as it claims (subject to no external review) that the information it is gathering might possibly in some way help to prevent a terrorist plot, then the administration can spy on anyone and everyone all the time. Those two powers are all a government needs to overthrow democratic processes and create a police state.

Before I get attacked as alarmist, let me make clear that I'm _not_ claiming that this administration has plans to create a police state, or that it will do so, or is doing so. Perhaps they just have the purest of motives and only want to prevent terrorism. Fine. But what I am saying is this: any administration after this one, if it had the powers that this administration is claiming for the executive, _could_ turn this country into a police state whenever a president wanted to.

My wife is Czech, and like many who experienced life in the eastern bloc, she cannot believe that we, who stood against communism, are now so naive as to allow our own government to have such broad powers. If the Czech government were now to claim such authority to detain and spy on its citizens, people would be in the streets all over the Czech Republic, because Czechs know, by long experience, what government can do, what it eventually _will_ do, if it is allowed to spy on and arrest citizens without meaningful restrictions.

Chris Ford, you, like Bush, talk about the damage that the leak of NSA surveillance has done. But let's be logical for a moment: the terrorists _already_ knew that the NSA could spy on them if it got a FISA warrant, and that FISA warrants were very seldom denied. Given that, they must have assumed that the NSA might be spying on them anyway. Knowing that the administration could do it without a warrant wouldn't suddenly make them secure their communications - that's really an absurd claim if you think about it. Or do you disagree?

Thanks for posting.

Beren

Posted by: Beren | December 30, 2005 08:51 PM

All Bush is doing is challenging Congress to impeach him.

Let's see how Congress reacts

Posted by: Amadeus | December 31, 2005 03:05 AM

I have lived in Franco's Spain and in Batista's Cuba. To guard my every social action, to speak in metaphors about government tyranny, to anxiously await a dreadful midnight knock on the door,are all behaviors I hope never to have to repeat in our America.##MM

Posted by: Moutain Man | December 31, 2005 03:36 AM

Beren - "But let's be logical for a moment: the terrorists _already_ knew that the NSA could spy on them if it got a FISA warrant, and that FISA warrants were very seldom denied. Given that, they must have assumed that the NSA might be spying on them anyway."

Indeed let's be logical.

The enemy knows we will try to intercept their communications. But they can't function as a netcentric war fighting group without communications to leadership, finance, logistics, and between Islamoid groups. So they do anyways and hope their guile, code use, and legal assistance by the ACLU will save them.

Its the same old game that started 144 years ago with the telegraph lines in 1861. We tapped the wires (hence the phrase wiretapping) of the Rebs, they us. We spied as soon as the transatlantic cable was laid, telephone and radio was invented. All through the Cold War we spied on US sympathizers of the Commies and the Venona cables formed the basis of how we learned of the A-bomb NYC spy rings, and their cousins in Hollywood, and the genteel aristocrats of Yale and Oxford that served Stalin for the UK Foreign ministry and our State Dept. How we found out half the ACLU was NYC commies in 1950, and Soviet funding and infiltration of the NAACP and various anti-war groups...

This has been going on a long, long while all warrantless. It didn't begin with the Evil Chimpy McHitlerburton.

And the whole idea of warrants is fatuous in spying to begin with. We are not assembling a criminal case based on existing evidence to "go to trial" in a way that safeguards "precious enemy civil liberties", where the wiretap is just icing on the cake in a lawyer's triumph. We are out to find out who the Islamoids are and who they have inserted into various countries to kill infidels or "incorrectly believing" Muslims. Again, 9/11 was not a crime, it was an act of war. The 4th no more applies than demanding a search warrant be presented to you before you will agree to leave the holding cell at Customs and submit to a search to show you are not harmful, not is stuff you are bringing into the country harmful to the safety and health of the citizens of the USA (You will have a long wait in that holding cell)

"My wife is Czech, and like many who experienced life in the eastern bloc, she cannot believe that we, who stood against communism, are now so naive as to allow our own government to have such broad powers."

I'm afraid it is you and your wife who are the naive ones. Have either of you studied the Revolutionary War actions of Franklin, Jefferson, Washington? The powers Jefferson exercised with treaties? What Lincoln did in the Civil War, Jackson on the Indian warriors, Grant's summary executions?? Wilson in WWI, FDR in WWII??? The military commissions authorized that shot or hanged hundreds of Germans and Jap civilians for atrocities or just lying ( execution rules for lying under affidavit with penalty of death - no 5th for the enemy inc. traitors found postwar who had fought with them) Or that FDR, TRuman, and Eisenhower all signed off on military tribunals??

In wartime, the Constitution makes the Executive's powers absolutely awesome. Always has.

If your Czech wife is uncomfortable with the fact that this did not begin with the evil Bush-Hitler, there's always a plane flight back to Bohemia...And, BTW, good job in the civil liberties of the enemy Dept to the Czechs - who like the Poles ensured there would be no further "enemy within" issues from ethnic Germans ever again after WWII, right? We might see the same thing happen to Islamoids if the West is hit by Islamoid WMD..

Posted by: Chris Ford | December 31, 2005 04:24 AM

Will -

So far I have been nice to you thinking you are a little slow or a poor reader perhaps, but after countless posts from myself and silicondoc telling you exactly what oversight is known to review NSA spying and both of us opining that it appears adequate enough...and may in fact leave out other entities so far not talking because they are bound by NSA secrecy....

You appear to only be stringing us along. No one is that stupid or that poor a reader.

"I can't even tell if I disagree with you yet or not because I have been utterly incapable of extracting the answer to the following question from any of you:
What oversight do you suggest?
Please answer without expunging on me a bunch of asinine facts about YOU that I already know".

You refuse to read the links I and silicondoc and jerseyindependent provided you on request of NSA legalities and who knew in Democrat leadership, Justice, FISA court. You blow past posts written explaining it to you.

No one is that stupid or dense at reading evidence. You, I conclude, are just jerking other posters around...

So screw you, Will.

Go out and read on your own or present a cogent case as to why the oversight is inadequate, given your labored readings. When it appears you finally have read whats out there and have a clue, and weren't jerking people around but merely stupid, lazy or a poor reader - then we can discuss the issue.

But now you are just a broken record, saying the same garbage over and over and ignoring people who point out why what you said is ignorant garbage.

"Patriot" 1957 also repeats the same garbage, thinking if he says it long enough he can remove 60 years of history of the NSA doing the same stuff under 11 other Presidents, always under oversight of the leaders of both Parties in Congress.

"But you can't convince me that a small cabal of men can secretly wiretap with no oversight and no regulations."

Arguing with a Lefty in the grip of dogma is always tough. "Small cabal" of hundreds in the loop, lawyers galore. "No oversight" being internal NSA oversight, external NSA oversight by Justice, bipartisan leadership of Congress, FISA Oversight Board. "No regulations" meaning compliance with Constitution, carried out the Executives Constitutional obligations, and the regulations and legal codes of the USA, which, much as "Patriot" 1957 wants it to, do not confer full criminal rights and "precious freedoms & liberties" on the enemy..

Beren - "And for us to decide, there has to be a public debate - not a secret decision by the executive branch to which most of the legislature and judiciary are not even privy."

What part of "Classified Top Secret - Compartmentalized Safeguarded Intelligence" don't you understand???

Posted by: Chris Ford | December 31, 2005 05:19 AM

Chris - you can't win arguing facts with these folks. No matter how hard you try, they will repeat their 4th amendment mantra, all the while ignoring that amendment's direct connection to criminal vice intelligence gathering matters.

I find your explanations to be highly understandable.

Posted by: David Munro | December 31, 2005 07:46 AM

FROM MSNBC:
Live Vote
Do you believe President Bush's actions justify impeachment? * 182578 responses
Yes, between the secret spying, the deceptions leading to war and more, there is plenty to justify putting him on trial.
86%
No, like any president, he has made a few missteps, but nothing approaching "high crimes and misdemeanors."
5%
No, the man has done absolutely nothing wrong. Impeachment would just be a political lynching.
8%
I don't know.
2%
Not a scientifically valid survey. Click to learn more.

Posted by: IMPEACH BUSH | December 31, 2005 09:47 AM

Here is the link to the MSNBC poll

http://www.msnbc.msn.com/id/10562904


LONG LIVE FREEDOM AND THE AMERICAN WAY.

IMPEACH BUSH TODAY!!!!!

Posted by: IMPEACH BUSH ET AL. | December 31, 2005 09:51 AM

Congress did not declare war!!!!!

Stop talking about the President's War Powers as a justification for the Bushies' power grab.

They are nothing but a bunch of power hungery greedy criminals. PUT THEM IN JAIL WERE CRIMINALS BELONG.

Let's have a good NEW YEAR
IMPEACH BUSH TODAY
SAVE THE AMERIAN WAY

Posted by: IMPEACH BUSH | December 31, 2005 10:01 AM

Chris my man. The Bush NSA oversight scheme is unacceptable due to lack of checks and balances. People are people, they haven't changed since the Greeks wrote their plays, Shakespear put it in english and Freud made a science of it. People are just plan no good just left to their infantile desires. Hence the need for oversight or checks and balances.
It aint a republican or democrat thing. IT'S A PEOPLE THING.
Oh, and another thing. ITS CRIMINAL.
IF they guy was black and smoking crack he'd be in jail right now, but white boy Bush goes in front of the entire Nation and admits he has violated the law and the public trust and the media whores all try to justify it. Screw you Chris.!! and Have a Happy new year.
IMPEACH BUSH TO DAY
SAVE THE AMERICAN WAY

Posted by: impeach BUSH | December 31, 2005 10:12 AM

Bush always says that "the terrorists hate us for our freedom". If he is right, then what would the terrorist strategy for winning be? 9/11 claimed over 3,000 lives. If al Qaida were able to complete a 9/11-scale attack every day, it would claim just over 1 million US lives a year. This would be unthinkable, but this would not be victory. The US population grows by far more than that.

So al Qaida cannot win by killing us off. But if they hate us for our freedom, they could try to win by taking away from us those freedoms that they hate.

Since 9/11 Bush has declared the right to eavesdrop on any American citizen without a warrant (and hence any justification), the right to arrest and detain anyone indefinitely without formal charges, access to a lawyer or to a court to challenge that arrest or detention, and the right to torture people he has labeled enemy combatants. Therefore, putting the pieces together, Bush believes he can label any one a terrorist, arrest that person and imprison and torture that person. Not exactly the model of a free society, all of the past presidents that Chris Ford cites, notwithstanding. Further, Bush has a tendency to label anyone who disagrees with him or speaks out against the war as an enemy sympathizer/traitor who demoralizes our troops and gives comfort to the enemy. It's a small leap from that labeling to the scenario where protestors get labeled as terrorists or those who aid and abet terrorists and therefore need to be arrested, tortured, etc. Then our first amendment rights get threatened as well.

It seems to me that al Qaida's biggest victory over us is not 9/11 but the fact that our rights are systematically being taken away.

Also, the war on terror is not a traditional war. It could very well last forever. Certainly, as long as there is one terrorist standing, a president could declare the war on terror still alive. In grant presidents wartime power, I'm hard pressed to imagine the framers of the Constitution intending that these powers be indefinite. Yet, under the current Administration arguments, such wartime powers would be indefinite since terrorists aren't likely to go away in the foreseeable future.

Bush initially campaigned as a "uniter not a divider". Yet he, under Rove's direction, has done everything to divide this country. Like Iraq, we are in a civil war. While not fought with guns, Democrats and Republicans are at war with each other. Each side reflexively opposes any idea put forth by the other. As a result, our Government is hamstrung and incapable of solving our nation's problems (social security, health care, budget and trade deficits, environmental, energy). Perhaps the president should keep his word and instead of attack all of those who think differently than he does, show some presidential leadership and reach out to his opponents and seek meaningful, bipartisan solutions.

Posted by: Another view | December 31, 2005 11:18 AM

I must confess, I am completely mystified by the conservative reaction to this transparent abuse of executive power on the part of George W. Bush. They should be suffering from a sort of intellectual whiplash given the abrupt suddeness of their turnaround.

Can you possibly imagine their reaction if this were a democratic Chief Executive so shamelessly and cavalierly expanding the powers of the Presidency? Don't get me wrong. I am quite certain that there are equal numbers of democrats who would be flopping to the other side like fish on a hot grill were the political roles reversed.

But look. We simply cannot abandon our deeply held political principles--the very principles of checking and limiting the powers of any one man or branch of our government--because of one, terroist attack on one day in September, 2001, the absence of any one of the convergence of chance events that happened on that day and the preceding days occurring might have prevented the event from ever occurring in the first place.

That is what fear does to a people. It is what turned Germany into a facist state. It is what drove the Soviet mentality of secrecy and deceit. The ends justify the means. If we chuck our most basic, fundamental principles simply because of the passions stirred up by one intellectually challenged man who uses fear and division for political gain and who sees the events of September 11, 2001 as some sort of Providential act set down specifically for him to use to establish some vague New Order in the world, then maybe we should take the advice of John Quincy Adams in his passionalte defense of the slaves rebelling against the injustices inflicted upon them on a slave transport ship: "If the document be that meaningless to us in our courses then a modest gesture will I make before this court." He then proceeded to render asunder a copy of the US Constitution.

I make the same charge to all of you. If the document is that pedestrian in its meaning--if one man can through his own stubborn artifice trump it--then let's rip it from its hallowed casings and tear it asunder.

Posted by: jaxas | December 31, 2005 11:29 AM

Carl:
Saying your sorry does not excuse CRIMINAL ACTIVITY, like murder. Justice for all, not just the poor and uneducated. Justice. You know what that is? JAIL TIME IN AMERICA. PUT THE CRIMINAL POLITICANS AND THEIR CRONIES IN JAIL TOO. JUST LIKE THEY DO THE MINORITIES, except this time it's the crooked politicans who are stealing our freedoms which so many Americans have died for.

Posted by: impeach bush | December 31, 2005 11:32 AM

What is a war? In the past, war was fought between geographic entities (countries) where, once one country's leaders surrendered, the war was over, and occupation takes place, at which time rules of engagement between the occupier and occupied change and resistors to the occupation are treated as criminals and not enemies of the state.
How does this work in the case of a (now) stateless group?
The act that the President claims his authorization for the NSA warrantless wiretapping is the Joint Resolution Authorizing the Use of Force Against Terrorists, passed by the Senate and House of Representatives on Sept. 14, 2001. The act states:
(a) That the president is authorized to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that
occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts
of international terrorism against the United States by such nations, organizations or persons.
The first question is who are the "nations,
organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons"?
Is there a list? Is that list static, or can he, unilaterally add to it whenever he chooses? Could he add any organization he chooses, without Congressional authorization (say the ACLU)?
And just when is the war over? When all the leaders are captured? (Maybe that's why binLaden, miraculously, escaped capture at Tora Bora.) Until all members of the group are captured (impossible to do, how would one know)? Until the President determines it is over (why anyone would give up the unlimited powers that the President claims to have is unclear to me)? Until Congress declares the war over? Could Congress act unilaterally to end the war? Could the President put Congress on the list of the organizations who are aiding the terrorists?
It seems to me that September 14 resolution is too broad, too vague, and too dangerous in putting too much discretion in any person. This is a "state of war" that is eternal in scope. There is no end possible.
If the President has the power he claims to bypass courts and Congres, the sound you hear is all of your civil rights being flushed down the drain. For all time.

Posted by: MH | December 31, 2005 11:38 AM

Yes, I like the idea of JUSTICE.
The REPUBLICANS like the death penalty don't they.
Treason is punishable by death isn't it.
Bush et al have arguable committed treason, right?
Yes, that sounds like a REPUBLICAN SOLUTION.
Has a familar ring to it doesn't. The old GERMAN faction. They were big in Texas and supported the GERMAN NAZI PARTY.

Posted by: Live Freed or Die | December 31, 2005 11:41 AM

I have to agree with Chris on this. Thanks for the link to that bizarre poll IMPEACH BUSH. That really does shed some light on the type of reader MSNBC.com attracts.

I also agree with IMPEACH BUSH that it is not a dem or rep thing. If Clinton approved the spying I would thank him for it as well.

Thanks President Bush!

Happy SAFE New Year to All!

Posted by: Mark Z | December 31, 2005 11:46 AM

I do not believe George W. Bush is a facist. In fact, I do not believe he possesses the required intelligence to understand the textured meanings of such political terms.

What I do believe he is is a man convinced in his own mind that God has selected him for some great work. As such. he is a far more dangerous political animal than a facist. We can look at a facist and see the evil of his work and take measures against him that would garner wide political support. But, a man who is convinced that he is doing the Lord's work--such a man is to really be feared.

The Founder's understood this. They understood that such passions are lead to the worst forms of tyranny. Indeed, the tyranny that caused the 9-11 attack was grounded in that very same type of religious conviction.. We as a people must understand that just getting Bush out of office isn't going to change that equation. We have to defeat the entire notion that any one man, or party or political philosphy has some special Providential blessing and a mandate to rule.

Simply replacing Bush in 2008 with yet another ambitious crusader who has it in his head that God is on his side won't do the trick. We need something really new. Someone who has the courage to stand up to all of the faith mongers who are simply out to establish their notion of God's Kingdom on earth.

Posted by: Jaxas | December 31, 2005 11:57 AM

I happen to agree that religion should have NO influence on decision making in the oval office or anywhere in government office for that matter.

However, whatever a person does to stay strong spiritually, emotionally and physically is fine by me. I happen to be an atheist and rely on loved ones and my own senses, but unlike you Jaxas, I do not hold others beliefs against them and assume that it is the driving force in their lives.

I personally do not think that Bush relies as heavily on religion as you suppose. I do think that in order to pander to a large portion of his constituents he makes it appear that way. Most people will concede that religion is the cause for most wars and killing unfortunately.

Posted by: Mark z | December 31, 2005 12:05 PM

No one can truly tell what the President is thinking, not even Bush. What we can access quite objectively are his Actions, which clearly constitute some very troubling matters, including violating the Constitution to which is he did swear to uphold and have failed to do. This is established prima facie case of an impeachable offence. Being the village idoit is not a defense.

Posted by: Impeach Bush | December 31, 2005 12:41 PM

To Chris,

"Have either of you studied the Revolutionary War actions of Franklin, Jefferson, Washington? "

Happened before there was a Constitution of course, so these examples are interesting but not Constitutionally relevant or germain to the current US legal system. After all, today the Boston Tea Party may be labeled a terrorist act, and the Minute Men members of an insurgency. It is a matter of perspective.

"The powers Jefferson exercised with treaties?"

In the infancy of the US, testing Executive powers was a common political theme. Jefferson was only the second President. If today one sees Jefferson overstepping his powers it is a lesson for political education what not to do, not a banner for excusing current excess. For example, President Jefferson in response to a subpoena for documents from John Marshall in the treason trial of Aaron Burr refused to supply certain information, citing Presidential privilege which he claimed was absolute. The matter was legally addressed in 1974 in United States v Richard Nixon where the Court ruled that Presidential privilege, while valid, was presumptive and not absolute, and the Watergate Tapes had to be released by the President (with results we all know). That is, just because a President claims something is within his power, then or now, does not mean he is Constitutionally correct.

Thus there are two historical views of the Executive. (1) the "strong president" view, favored by presidents such as Theodore Roosevelt essentially held that presidents may do anything not specifically prohibited by the Constitution and (2) the "weak president" view, favored by presidents such as Howard Taft, held that presidents may only exercise powers specifically granted by the Constitution or delegated to the president by Congress under one of its enumerated powers. This debate on assumed powers of the Executive is historical, and will certainly not be settled here or during the current administration.


" Or TRuman,"

Interesting that you should mention Truman, since in the Supreme Court case, Youngstown Sheet & Tube Co. v Sawyer (1952) , the Supreme Court ruled that Truman's seizure of the the mills exceeded his power. Hence, affirming what a President does is not always within his power or Executive rights.

Then in Dames and More v Regan (1981), the court took a pragmatic approach, finding that since the executive orders issued by President Jimmy Carter were similar to ones exercised by earlier Presidents and these earlier Presidential actions were not objected by Congress (and this is the important part), the Congress (that is, the entire Congress, not just selected members kept in the loop) was perceived to have no objection to the practice, defacto allowing these powers to the President under Article II.


"What Lincoln did in the Civil War"

After Congress passed a declaration of War, which can give additional powers to the President as stipulated by Congress in the War Powers Act. More then a legal technicality since once the War is over, the powers provided to the Executive are removed. There is no current official declaration of war by Congress, hence the War Powers incurred by a President do not apply here. It may be assumed that SEC. 2. (c)(3) may have bearing, but it is the opinion of many that only rhetoric supposes a current national emergency.


"Jackson on the Indian warriors"

Do you mean the Indian Removal Act that was passed by Congress, thus Congress gave Jackson these powers after open debate. If you mean his actions during his military campaigns, all scholars agree his actions were illegal and officially unauthorized, but permitted non-the-less by the President at the time, showing the potential for abuse of power to subjugate 'different' people. I think this is a perfect example of the type of behavior we should try to prevent, by any Executive or Congress, rather than just using it as an historical precedence example to justify any current behavior that may be inappropriate.


"Grant's summary executions??"

A General who was used to commands being followed. If told that an act was beyond the power of the Presidency, he was likely to reply, "Let the law be changed." Hardly a poster child for appropriate executive conduct or understanding of the political limits of his office.


"Wilson in WWI, FDR in WWII??? "

Both wars declared officially by Congress. Also, neither President sought to make their 'wartime' powers permanent.

And so on... To every coin there are two sides.


"there's always a plane flight back to Bohemia"

It is very telling of what type of person one is if they become primitive when challenged. After all the first Americans could make a similar statement to all those not of pure Native American ancestry.


"good job in the civil liberties of the enemy Dept to the Czechs - who like the Poles ensured there would be no further "enemy within" issues from ethnic Germans ever again after WWII, right"

Which was done by the post war Benes decrees in Czechoslovakia... under the Soviet controlled bloc, which was a communist government. Get the connection? Further interesting since in 2000 the US government confirmed the validity of the post-war Benes decree that expelled ethnic Germans and nationalized their land, effectively agreeing that these deportations were valid halting and support for Germany to acquire reparations (e.g.: http://www.radio.cz/en/article/11342). So, I suppose you must say "good job" to the US government as well, in regards to not supporting what some Germans see as abuse of their civil liberties.

KS

Posted by: KS | December 31, 2005 01:04 PM

Typo: Jefferson was the third President, of course.

KS

Posted by: KS | December 31, 2005 01:19 PM

Context, as always, is king.

While fans of Bush administration policies proffer all kinds of legally or philosophically parsed justifications for his secret actions -- some of which, in the abstract, may be quite well reasoned -- the fact remains that the 49% of the county who never trusted Mr. Bush as a competent leader, and the growing segment of those who did but now aren't so sure anymore -- is the reason that checks and balances of every kind must be employed at this point, and for the balance of the Bush term.

Bottom line -- the president does not enjoy the trust of the majority of the American people. That's a very sad commentary on the state of our dysfunctional democracy today, and worthy of a separate conversation, but it is the fact of the matter. A fact that cannot be refuted.

In that light, President Bush cannot therefore pursue highly suspect policies with enormous potential negative consequences, in the name of protecting us, without being called to account for them. It's that simple.

Any journalist or politician or other official with oversight responsibility who fails to aggressively check and balance is guilty of shirking their patriotic duty.

If Americans did trust President Bush, we would be far more likely to blanch and look the other way. And I might be among those who would do just that. But that is not where we are.

So we must face the facts on the ground.

Context is king, not George W. Bush.

Posted by: JA | December 31, 2005 01:33 PM

Chris:

Where were you when Ashcroft and Bush neutered terrorist investigations by terminating investigations into Al Qaeda illegally purchasing firearms in this country? Were you logically consistent, you would demand the gov't keep detailed records of all firearms purchases by suspected terrorists from their NRA enablers. Yet the Bush administration steadfastly averts its eyes to possible Al Qaeda purchases of 50-caliber rifles--the kind that bring down airliners--to avoid offending the NRA's phallic insecurities. Just as the Bush administration opposes requiring real security at industrial facilities such as oil refineries to avoid hurting the profits of their corporate campaign contributors.

So we have an administration ignoring the 4th Amendment while simultaneously and quite willfully ignoring the ability of Al Qaeda using firearms illegally purchased in our own country to shoot down a passenger jet carrying hundreds of innocent Americans. Assuming you really believe what you say about the first duty of any gov't to protect its own citizens, let's hear you denounce not going after terrorist arms purchases. Don't destroy firearms purchase records so quickly that those trying to protect us from terrorism are unable to act on the information.

You can't have it both ways. The very real 4th Amendment rights from unreasonable searches and seizures are as valid and important as any imaginary, illusory and totally fictitous rights of individuals to heavy weaponry. Feeding the NRA's phallic insecurities is no excuse to jeopardize our lives in this "war."

And the claim that because human beings never see the gathered information we are protected from gov't intrusions is superficial. Who writes the algorithisms? What assurances have these coders do not gather information not necessary to keeping us safe? Remember, this administration has misled us on WMD in Iraq, links between Iraq and 9/11, and links between Iraq and Al Qaeda. You may trust them, but the rest of us do not. Algorithisms do what they are told to do. And who's writing the algorithisms? The same people who tell us having an abortion leads to mental illness and that global warming is junk science. You may trust them; the rest of us know better.

Finally, the argument that we need this program ignores the reality that the gov't had all the information it needed before 9/11 to stop the attacks. Coleen Rowley, the FBI whistleblower, made this perfectly clear. Bust one group of hijackers training at flight schools and the entire enterprise unravels. No 9/11, no blood stains on your cousin's jacket. And all the scare tactics in the world can't change this.

I must admit the right is quite accomplished in the sophistry of totalitarianism. But we have to look past it to the reality of the Constitution, the United States Code, and facts of 9/11 and our fight against terrorism.

Posted by: Nick | December 31, 2005 02:05 PM

It is amusing to read these things. But, I'm curious too, as to why most mainstream "journalists" haven't had much reaction to this. Probably because they know that in reality, it's old hat. But I'm equally confounded as to why American businesses aren't up in arms. Do they think that they are immune from snooping? You know those trade secrets they've been sending to their German branch office? I wonder who's reading those? How about that Japanese compnay that's thinking of expanding its manufacturing into the good ol' US of A, I wonder if they get curious as to why the land they end up purchasing for their new plant always seems to suddenly increase in price, right at the end?

In all the discussions about this, there has been almost no technical aspects brought up, and that too is curious. Has anybody noticed the fact that even if the current Presidential abuse of the the wire tapping laws had occurred since 1921, the 9/11 tragedy would have happened? And right on schedule to boot. Subsequent inquiries have shown that the FBI, the DIA, and, pretty much, the rest of the US intelligence "network" had more than enough evidence and data to stop the bad guys. But they weren't stopped, why? I don't recall anyone stating, "Gosh, if we had just been able to use warrentless wire taps and been able to spy on American citizens, we could have thwarted it!" But, maybe I missed that part.
{ If you think we didn't know, go to this link and watch: http://www.pbs.org/wgbh/pages/frontline/shows/knew/view/
}

Now, if we could have stopped that tragedy from happening without spying on ourselves, but didn't, why is spying on ourselves going to be of any help now? An analogy (prehaps a bad one?): we didn't run the stop sign because we didn't know where all the stop signs were, we ran it because we didn't apply foot to brake when we saw one.

"And Fried notes the surveillance is done by computers with
ultrasecret algorithms and pattern recognition technology on hundreds of millions of signal intercepts daily." Which means precisely what? That it's already happening? Is that supposed to make it more palatable? BTW, what are these "ultrasecret algorithms" anyway? Another point of history that I'd like to bring up is that little fiasco with the Hubble telescope. Remember that? At first, all the images were comming back blurry, unuseable, i.e. wrong. When asked how such a thing could happen, the optics manufacturer, initially, said that they had used "the wrong algorithm" when making the optics system. Ooops.

(A side note: shortly after that revelation, the official excuse became that some "technician" mounted some bolts wrong, or other such silliness. The excuse was changed because they didn't want people to notice what the manufacturer had said: that he had used the wrong algorithm. Well, gosh, if they used an algorithm to make an optics system that couldn't look out into space, wheres the only other direction the optics system could look?)

Computers have an aggravating tendency to do exactly what they are instructed to do, and, frighteningly, software engineers never seem to be able to precisely say what they mean. Here, take a gander at this:
D:\Documents and Settings\Frogleg\My Documents\Security Fix - Brian Krebs on Computer and Internet Security - (washingtonpost_com).htm

Oh, but the NSA has super DUPER software engineers, who always know just what to do. I mean, the NSA never, ever, out sources it's SW engineering, and they manufacture all their own stuff, and make their own operating systems, don't they? Well, what about the poor schmuck who does the analysis? Try this out:
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/30/AR2005123000994.html
But that's the FBI, the NSA is different? Right.

And, Chris, you're going to have to go a really long way to convince me that you and the President are really, really serious about my saftey, to the point where I have to lose my liberty, when we have a southern border as porous as the WH's excuses for breaking the law.

Domestic spying is not going to make any one of us one iota safer. Why is it always "more" with this administration? Are they so incompetent that they can't do with what they have? Goodness, there isn't anything that occurs within the electromagnetic spectrum ON THIS PLANET that the NSA is not aware of. The problem, for me, wasn't that the President engaged in illegal wiretapping, all he had to have said was that some people got carried away after 9/11 because things were a bit unstable, but now he's got a handle on it and everything is back to hunky-dory. But not this WH. Not Mr. Arrogance himself. Instead he comes out with: yeah, I broke the law, and you know what, I'm going to do it again. Translation: F*** you, F*** your dog, and F*** your home town. What was that line from the movie "Nixon"? Oh yeah, "I'm the President of the United States. I can bomb anybody I want." This admin is acting like we don't have the right to say "No".

Posted by: OhYeah | December 31, 2005 03:03 PM

The sooner we find out who leaked these top secret national security matters to the Washington Post, et al, the sooner the public will be able to determine whether the Bush Administration has violated the law, the Constitution or our civil liberties.

Posted by: Dan | December 31, 2005 03:52 PM

All I have to say is that it is about time the American people wake up and that a good look at what is happening. All of us have to make sure that not just one group or another control our lives. This is suppose to be a country ran buy the people for the people. It use to be against the law to bribe people but that is actually what is happening in congress and all the state governments today. You have the lobbist and pact money. The people in this country lost there voice years ago. Why do you think these politicans what the jobs?? It isn't because they want to serve the people, it is so they can get rich. Why, would a person spend millions of dollars for a job that makes them only thousands?? It is because they know they can make a hell of alot more if they get into office..

Posted by: Ron | December 31, 2005 03:58 PM

Interesting NYTimes article written by James Risen in the 2002 pre-"precious sacred civil liberties of the enemy" era.

Risen, James, and David Johnston. "Agency Is Under Scrutiny for Overlooked Messages." New York Times, 20 Jun. 2002. [http://www.nytimes.com]

According to U.S. intelligence officials on 19 June 2002, NSA "intercepted two cryptic communications [from Afghanistan] on the the day before the Sept. 11 attacks that referred to a major event scheduled for the next day." NSA analysts "did not process, translate and review the intercepted Arabic communications until the day after the attacks."

So back before the Times joined the hysterical Left in the all-consuming crusade to defeat the illegally elected Chimpy McHitlerburton and restore noble Algore to his rightful rule, the Times was scandalized and shocked that we did not slap human analysists trained in Arabic fast enough on two intercepted phone calls from Afghanistan to two Muslims here, one American, one a resident alien also with full civil liberties!!!

What about the 4th? Why did they dare intercept calls coming from terrorists in Afghanistan without probable cause? Impeach!!

(I don't think the NYTimes was whining that tune back in June, 2002. That was when we were demanding commissions to investigate why we weren't snooping enough on enemy Islamoids and why Coleen Crowley was blocked by officials afraid for their careers to get a FISA warrant and why another FBI agent was rebuffed on investigating why Arabs were flocking to Flight school in Phoenix out of concern over the privacy rights of foreigners and lack of probable cause evidence that suspicious activity would translate into harm. Waiting for the "crime" to be committed, in order to have "probable cause" to investigate then solve the crime - was the ancient FBI mindset that the American public and Congress said ended on 9/11 - except for the Lefties and extreme civil libertarians, of course)

KS -

KS makes a relatively informed post for a Leftist, but his effort is tainted throughout by his belief that Congress saying the "magic" words "declaration of War" makes everything OK, but if they refuse and say "use of force" - Lefty Dogma must be applied. The war is automatically termed under the Marxist model 1st used to rail against Vietnam as "ILLEGAL WAR", and the President must be impeached for doing what Congress voted to do. And of course, all actions he says were OK for Lincoln, FDR to do are "unconstitutional" somehow in the absence of "declaration".

So one might be asked how the Lefty campaign to oust members of Congress that refuse to "Declare the Magic Word" have gone since Vietnam? How many times have Lefties actually ran against a candidate that "violated the Constitution" by voting for "illegal War" - like the ones the likes of Schumer, Feinstein, Boxer, Kennedy, Levin, Durbin, Nadler voted in favor of "murdering innocent little Afghani babies" to build the Conoco pipeline???

The answer of course is the Lefties never ran against any Congress Rep that voted NOT to do "Declaration of War" in any contest. Because they know it sounds utterly stupid outside the classroom the Marxist professor nods approvingly when they parrot Lefty theory back at the Prof so well. Perhaps Nader mentioned it at a few rallies back in 2000, but look how he did.

It's beyond stupid to argue that you can kill and wound the enemy, given they are out to kill us, but you can't wiretap their asses or "imprison them without trial or ACLU counsel".

Every Founder that became President or served in Congress has to deal with Jefferson and Madisons ill-thought out goofs on defining conflict, starting with the undeclared Naval War Against France in 1794. In all cases back then, the Founders said it was a semantic trifle not worth fixing. In modern times, according to the red diaper babies that hatched this anti-war theory in the Vietnam era, every President and almost every Congress since TDR "violated" the Constitution culminating of course in the Nixxon-Hitler. The spawn of the red diaper babies continue the family tradition saying since Nixon, all elected high officials, even the wuss Carter, "violated" the Constitution on the "Magic words for legal war" and should be impeached...

Yadayada....The public laughs at the Lefty "Declaration of War" semantic obsession that the Courts also find ridiculous. Do me a favor. Start small. Impeach Schumer for his unconstitutional war votes, then Feinstein. Get those two, and people will listen to you about impeaching Presidents rather than roll on the floor giggling.

Posted by: Chris Ford | December 31, 2005 03:59 PM

Has anyone present explained why Bush was not content with the existing law which permitted the Government to wiretap and obtain the court's permission within 72 hours AFTER the wiretap?

Posted by: angelus | December 31, 2005 04:49 PM

I got the answer at
http://forums.nytimes.com/top/opinion/readersopinions/forums/washington/presidentbushssecondterm/index.html?offset=128618&fid=.f853326/128618

The other reason I think they decided to pursue NSA eavesdropping without warrants is that it turns out they were having trouble with the FISA court.

The factlet that has been thrown around is that the FISA court had only turned down a small number of requests (4 I believe) in its entire history. However, you probably saw the story that revealed that many FISA warrant requests from the Bush administration were edited, essentially rewritten by the court.

I interpret this to mean that the Bush administration requests were sloppy or overly broad or perhaps both.

I think they got tired of following correct procedures and so, believing as you say, that they could never get caught, they just decided to blow off the FISA court entirely.

Such arrogant disregard for the rule of law really deserves to be punished by impeachment. It is nothing less than a brazen assault on our constitutional government.

Posted by: angelus | December 31, 2005 05:04 PM

o ye drinkers of the administration's kool-ade, in 25 words or less tell us why bush was not content with the existing law? and in a further 25, why his state of mind trumps an enacted congressional prohibition on behavior he admits to?

Posted by: slangist | December 31, 2005 05:06 PM

You know Chris, I can see your point. Abramoff makes me giggle too, with delight.

Posted by: Impeach Bush | December 31, 2005 05:07 PM

I think we should ask Chris Ford to start off the new year right and come clean with what is behind his motivations.

I don't believe he's cowering in fear in front of his monitor, begging his president to do everything to stop the bombs no matter what the cost to him or his freedom. And I don't think its all consideration for his neighbor's safety either, especically if that neighbor wasn't born in a red state. And he would appear quite intelligent enough to have read enough history to know what happens to nations where its leaders are given absolute power. And it does not appear he is one of the elites/cronies who would benefit from his buddy having absolute power. This, his motivations escape me.

His motivation would appear to be to support the development of a police state. And if this were the post USSR or somewhere like that where people had been accustomed to living in tyranny and were having trouble adjusting to the unpredictability of freedom, I might have some understanding of it. But he would appear to be advocating for a state that would in no way serve his best interests, and one in which the opinions he so freely gives would be unwelcome, perhaps even illegal. I mean, there must be one little tiny thing he disagrees with Bush about, and then if the president decided that freely offering an opinion about that made him "against us", he could rot in jail with no recourse as an enemy combatant.

So, tell us Chris Ford, what is really behind your positions.

See ya all next year.

Posted by: patriot 1957 | December 31, 2005 06:15 PM

With regard to the eavesdropping matter, I think the key test is whether the rights of the President's political opponents have been violated. If this is ever proved, then the President should be held accountable. Until then, I think we should accord the President some deference.

Posted by: JZ | December 31, 2005 07:39 PM

"the key test is whether the rights of the President's political opponents have been violated"???

What the hell does that have to do with wiretapping American citizens? This isn't a debate about whether someone got the better of an opponent...it's about the laws governing our country.

I predict that this is prove to be the most corrupt administraion in our nation's history.

Posted by: Gene | December 31, 2005 08:12 PM

No, the debate is not about laws governing our country. The debate is about how we should be fighting a dangerous enemy.

We don't have all the facts in this matter, so we can't really know why the President feels these particular actions are necessary to protect national security. As long as he is not targeting his political opponents, I'm inclined to let him gather all the war-related intelligence he needs as he sees fit. If it's eventually proven that he intended to target political opponents and not the enemy, then the President and his party will be relegated to the 'ash heap of history.'

Posted by: JZ | December 31, 2005 08:51 PM

This is a replay of the Pentagon Papers, and the result will be the same.

M.ark my words

Posted by: bb | December 31, 2005 08:56 PM

The harm to Americans need not come from deliberate targeting of political opponents. The difficulty of all "screening" programs, like wiretapping tens of thousands or millions in hopes of finding a rare plot, is false positive results. Unless your screening algorithm is 100% senstive (accurately labelling all terrorists) and 100% specific (accurately labelling all non-terrorists) many, many people will be falsely identified as potential terrorists. If our government is saving this information as reported, the long-term harm to people so labelled is difficult to gauge. One of the many problems with the Bush administration is that we are supposed to simply trust that every "bad guy" is, in fact, a bad guy not deserving of civil rights.

Posted by: JB | December 31, 2005 09:34 PM

"No, the debate is not about laws governing our country. The debate is about how we should be fighting a dangerous enemy."

Think about this - the algorithm being used (in part) looks for keywords. Lets say one of them is "bomb". My kids still say "it was the bomb" (yes, I am really sick of hearing that). Does that mean my name could be on one of these lists? Do any of your conversations contain potentially dangerous words? Does that mean you are on one of these lists? Or how about your mom, or your wife, or the guy that sits next to you at work?

What makes America wonderful is that we aren't supposed to have to worry about things like this. We aren't supposed to have to be careful about what we say, because our right to free speech and personal privacy are guaranteed by our constitution. There are laws to govern our privacy, and ways that government can "search" our homes, cars and communication systems. When these laws are ignored, our constitution is ignored. NO ONE HAS THE RIGHT TO DO THAT, NO MATTER HOW THEY JUSTIFY IT. The end definitely does not justify the means.

I want my America back...

Posted by: jj | December 31, 2005 10:16 PM

JB makes good points, and I agree that false positive results are undesirable. However, there will be false positives even with court-sanctioned wiretapping. It's unavoidable.

In my opinion, it's premature to judge the President's actions. What evidence do we have that the rights of innocent citizens have been violated willfully or on a large scale? Conversely, how many problems have been thwarted thanks to the speed of warrantless surveillance? Shouldn't we have better answers to these questions before we declare that the President is wrong, or worse, that he should be removed from office?

Another thing I don't understand is why so many are unwilling to grant the President a little leeway in how forcefully he attempts to learn the plans of our enemies. Isn't it better to know what they're up to before it's too late? During a time of war, isn't it better for our intelligence gathering to be a bit more aggressive than normal?

Finally, if the President acquiesces to the demands of civil liberty groups and agrees to weaken intelligence gathering efforts, can I assume that these same groups will be the first to absolve the President if an attack comes that could have been prevented had a more aggressive intelligence gathering approach remained in place?

Posted by: JZ | December 31, 2005 10:27 PM

The concerns expressed by jj deserve respect but are, in my view, unfounded. I suspect it's true that the government uses algorithms to detect speech patterns or content that might constitute a threat. However, I'd be surprised if these algorithms were so unsophisticated that teenagers exclaiming "it was the bomb" could end up being interrogated by federal agents. Such fears border on paranoia.

Rather than worry about the highly improbable, I would suggest that we keep asking what in my view is the central question about the President's intelligence gathering approach: what evidence do we have that the rights of innocent citizens have been violated willfully or on a large scale? If such evidence is discovered (and I think we can count on the media to pursue discovering such evidence with all the vigor it can muster), then we should hold the President accountable.

In the meantime, I would suggest that we not tie President's hands when it comes to gathering wartime intelligence. Instead, let's figure out what we can do to help him. The sooner this conflict is over, the sooner we can "have our America back."

Posted by: JZ | December 31, 2005 11:07 PM

"In a time of war."

A lot of Bush supporters invoke the "time of war" excuse for violating the Constitution.

Baloney!

This war has been defined by Bush as a war that will never end.

Are any of the Bush supporters willing to throw out our Constitution forever?

Posted by: Skeptic | January 1, 2006 03:07 AM

"In my opinion, it's premature to judge the President's actions. What evidence do we have that the rights of innocent citizens have been violated willfully or on a large scale?"

Yes, we should ask for proof that the rights of citizens have not been compromised. The point of my post, as simplistic as it may seem, is that in all of these discussions, we are making excuses for why it is ok to compromise the rights of the citizens of this country. Procedures have been put into place to keep that from happening. If we give up the right to have those procedures followed, we are giving up what has made this country great.

I do not seriously think that someone is listening to my phone conversations. I do, however, believe that the "algorithms" the government talks about do contain keywords and combinations of keywords that are flagged for possible review. Do I think that is ok? Sure, that is the best way to gather the intelligence needed to ensure the safety of the citizens. Do I think that the follow-up procedures (warrants) need to be followed? Yes. That is what I want explained.

I would rather hear that "we were in too big of a hurry to apply for warrants" or "we screwed up and will apply for them in the future" as excuses, rather than reasons why they don't need to apply for warrants. That is all I am asking for from this government. The responses given by the government now leave me feeling that they would rather we just shut up and leave them alone. I did not elect them to have them act like that. I also feel that they would rather punish the whistle-blowers than give us reasonable explanations. I don't like feeling that way either. Maybe if, for once, this administration acted as if the citizens of this country were important, more of us would be satisfied with the job they are doing.

Posted by: jj | January 1, 2006 06:24 AM

jz.
The reason for the Foreign Intelligence Surveillance Act and the courts it sets up is so that there will be someone checking over the shoulder to make sure that "the rights of innocent citizens have been violated willfully or on a large scale" (and the scale isn't the issue, just one violation is criminal) by the Executive Branch. If no one is looking (and we can't depend on a Congress of the same party to do this), how will we know? How do we know that this electronic snooping didn't aid Bush in the last election? (Remember Watergate? I do.) When no one is watching, no one knows.
The data mining that the administration is doing seems to be the same "Terrorism Information Awareness" program that was set up by DARPA (Defense Research Projects Agency) http://foi.missouri.edu/totalinfoaware/tia1.html and led by one Adm. John Poindexter, who, when he was Reagan's National Security Advisor, was convicted of selling arms to Iran and giving the money to the Contras in Nicaraqua in direct contravention of the law (Boland Ammendment). He claimed that he never told President Reagan about the program because he wanted Reagan to have deniability. Is he the kind of person you want to have the unfettered ability to spy on you? Someone who plans deniability?

Posted by: mh | January 1, 2006 07:01 AM

ng matter, I think the key test is whether the rights of the President's political opponents have been violated. If this is ever proved, then the President should be held accountable. >>Until then, I think we should accord the President some deference.<<

Bush is counting on all you nice people to look the other way while he screws America.
There is nothing in his past performance that warrants US according the President deference. 9/11 was on HIS watch. No WMD in Iraq. Abamsoff. Delay. Katrina. Etc.
How much must we let this American Idiot get away with. IMPEACH HIM NOW!!!!
And have a Happy New Year.

Posted by: Impeach Bush | January 1, 2006 09:29 AM

I've been trying to imagine why Bush elected to circumvent the FISA courts. My guess is that the process of preparing requests for individual warrants, presenting these requests before the appropriate parties, then arguing with these parties about warrant scope and duration was simply taking too long. The president probably saw several cases where warrants were either too late in coming or did not permit the necessary surveillance, with the result that information could not be gathered. Rather than request a speedier process from the Congress, which would likely have failed due to a Senate filibuster, he took a risk and simply authorized warrantless surveillance personally.

I think Bush's actions in this matter showed considerable courage given his standing in the polls and his poor relations with the national media, but ultimately I think he's driven to do things like this out of fear. Everyday, I'm sure he receives threat assessments that would scare the daylights out of us. As he reads them, he probably thinks back and remembers what it was like to stand with his generals in front of a burning Pentagon or atop the ruins of the World Trade Center and says to himself, "never again."

Some contributors to this debate would have us believe that the surveillance program is resulting in mass violations of civil liberties and that America is rapidly becoming a police state with citizens "afraid to speak out." That's ridiculous. I don't see Cindy Sheehan or Michael Moore or Al Franken or anyone else trembling with fear.

Look, I count myself as a patriotic American who supports the Constitution as much as anyone. The instant I see that Bush has abused his war powers by willfully spying on truly innocent citizens, I'll be the first to write my Congressman demanding impeachment. Until then, I think we need to let him do his job, and help him however we can.

Posted by: JZ | January 1, 2006 09:49 AM

JZ. Are you writing fiction? If you think you know what Bush is thinking you need to see a professional or be institutionalized.

Posted by: Impeach Bush | January 1, 2006 11:17 AM

Comments:

1. America has 28 areas of law where warrantless searches have been ruled exceptions to the 4th Amendment as "reasonable", or essential to the health and safety of the public. Customs, Coast Guard, various regulatory agencies checking farms, mines, nuclear power plants for dangers and violations of the public charge. Cop's search of suspects for public safety, search of persons compelled by subpeona to be at court. Child molesters on probation can have home, computer searched w/o warrant. Nursing homes may be inspected for safety violations, criminal conduct w/o warrant. Does prevention of terorism and mass death rise to these levels of exception, or is the problem we should end all searches w/o probable cause, beginning at the border where people are required to prove ID and have ship containers searched w/o warrant. Is the 4th so absolute it trumps all public safety???

2. The idea that American citizens by virtue of their birth or swearing in makes it impossible for them to be enemy agents? Therefore, all signal intercepts from overseas should somehow preclude any scrutiny of them? Nonsense. If we want anyone caught, it is those within the Homeland out to kill us. 75-80% of terrorist attacks directd against Americans have involved US citizens or legal residents. We are even more interested in an Islamoid or Communist action directed against us here than we are with a Pakistani phone call checking on an attack planned against France. We want to identify enemies within like Julius and Ethel Rosenberg, Aldrich Ames, Jose Padilla, Jonathan Pollard, Sy Rubenstein - because of the tremendous damage they can do to national security and public safety from spying or launching terror ops while operating within our borders. I support use of signals intercept to identify traitors or foreign agents initially, then use of warrants to assemble the criminal case. Anyone that argues the Venona cables the NSA got that snagged the Rosenbergs was unconstitutional and uncovery of their spy network "fruit of the poisoned tree" and they never should have been prosecuted is an anti-American.

3. 11 Presidents starting with FDR have all acted the same. They monitor overseas threats. Especially those overseas threats that intersect with networks within the USA. Even the Wussy one, Carter, watched for those. Now the "Bush-Hitler" must go at all costs crowd is trying to make Bush the exception of the 11 Presidents and Congressional leaders. Trying to nail him for not only what the others did, but doing a 180 from their past Lefty squeals and screams about "Bush" failures to monitor enough and not be engaged adequately in "connecting the dots" gathered from overseas and domestic intelligence.

4. The US Constitution distinguishes treason as the most exceptional crime. The Constitution requires the Commander in Chief and all military by tradition to take an oath to defend our nation against all enemies, foreign and domestic. The Constitution was never meant as a bulwark to protect traitors like the Rosenbergs, Ames, Pollard, or Sgt Akbar who turned weapons on his fellow soldiers in the 101st because they were infidels. Part of being vigilent is trying to find who the enemy is, and obviously we didn't know who or have probable cause for a warrant until we identify the traitors or enemy aliens within through other people we are snooping on legitimately overseas or through the FBI. No warrant existed that found the Rosenbergs, Greenglasses, Hollywood luminaries taking instruction from the Soviets, or Hiss. We got that from Soviet cables that we were able to decrypt. The Rosenbergs were then justly fried on evidence assembled with warrants, and the world didn't know of the existence of Venona until the 70s.

5. Far too many Lefties are still in a "absolute civil liberties guaranteed for the enemy" mode, and "no threat until we see the dead Americans proving a crime happened" and it's time to call the lawyers and law enforcement in, type of mindset. Politically, they are taking the Democratic Party way out on a limb, and their fate may well indeed be the irrelevance and obscurity visited on another generation of "Peace Democrats" the Copperheads, after the Union won the Civil War. In Democratic wards in the 1870s in Chicago, former Johnny Rebs were embraced while former Copperheads were barred from functions.

Posted by: Chris Ford | January 1, 2006 11:26 AM

Chris Ford,
Some comments. First, could you tell me what powers, if any, you believe that the executive should _not_ have right now? Is there _anything_ that you don't think Bush (or any other president in this situation) has the right to do, in hunting for terrorists, and if so, what is it? I ask because, to read your posts, it's tempting to conclude that you just want to give Bush a complete blank check. But that's probably unfair to you (I hope!), so what is your position, exactly? What is he not allowed to do?

Second, you write: "The enemy knows we will try to intercept their communications. But they can't function as a netcentric war fighting group without communications to leadership, finance, logistics, and between Islamoid groups. So they do anyways and hope their guile, code use, and legal assistance by the ACLU will save them."

Not the ACLU again..... But as for the substance of this paragraph, you seem to be saying that the terrorists know we could be intercepting their communications, but they went ahead with them anyway, because they had to. If that is what you think, then what has become of your original claim that the NSA spying leak was so damaging? On your own showing, the effect of the leak is just that the terrorists now know what they always suspected anyway, and they are still taking all the precautions that they can, just as they always were. What will terrorists do differently as a result of this leak? Anything? The situation, from their point of view, hasn't changed, since they always knew they could be being spied on under a FISA warrant. Or do you disagree?

You also write, "the whole idea of warrants is fatuous in spying to begin with." It may be fatuous in the world of espionage. However, in the world of law, and the life of citizens in a free republic, it is not. Far from 'fatuous', it is absolutely crucial. The whole reason for the existence of the FISA court is to reconcile these two concerns.

As for your historical examples, the period of history that I study is much earlier, so I don't know as much about some of the things you mentioned as I should. It seemed to me that KS did a good job of replying to your points. You need to cite examples of executive power that a) were directed against US citizens, not foreigners, b) were not subject to meaningful review, c) were not authorized by any law, d) violated the specific prohibition of law enacted by Congress, e) did not occur during a state of war declared by Congress, and f) were not later determined to have been, in fact, unconstitutional.

I read your reply to KS's reply, but unfortunately it seemed more like a rambling discussion about "red diaper babies" and so on that had very little to do with what KS actually said. The main point that you seemed to be making in it, amongst the jabs at Vietnam war protestors, was a claim that it didn't much matter whether Congress declared war or not. From a constitutional point of view, that's a pretty difficult position to defend, I think.

But if you want to take the position that Congress's "authorization for the use of force" (AUF) was, in intent, a declaration of war, and you use the AUF as a basis for Bush's authority to spy, then you have to remember that Congress specifically refused (when asked) to include language that would have included the United States in the AUF, and so you'd have to conclude that the AUF did _not_, in intention, authorize warrantless _domestic_ spying.

You also write, "In wartime, the Constitution makes the Executive's powers absolutely awesome. Always has."

No, it's just that the executive has (nearly) always claimed that it does. And at any rate, as you know, that same Constitution gives Congress the sole power to declare war, which it has not done.

You also write, "If your Czech wife is uncomfortable with the fact that this did not begin with the evil Bush-Hitler, there's always a plane flight back to Bohemia..."

Leaving aside the discourtesy of the suggestion, Bohemia is just one part of the Czech Republic. She's from Moravia, not Bohemia.

You claim that there is meaningful oversight of NSA spying, and you cite the following: "internal NSA oversight, external NSA oversight by Justice, bipartisan leadership of Congress, FISA Oversight Board."

Okay, think for a moment like one of the Founders or like the traditional kind of conservative who has a healthy distrust of government.

First, 'internal NSA oversight'. Is it meaningful oversight, when an agency oversees itself? Why would it want to report its own abuses? A bureaucracy can't be trusted to police itself that way if nearly everything it does is secret.

Second, external oversight from Justice. That still keeps the whole process within the executive branch. The potential for abuse is not just that there could be accidents. It is also that there could be intentional abuses by the executive branch. If there were, and the president had ordered them (say, to spy on his political opponents, or his own personal enemies), would DoJ report this? To _whom_? Well, to the president. Is that meaningful oversight? Is it a sufficient check on the potential for abuses?

Third, you mention the bipartisan leadership of Congress. You leave out the fact that it's a very small group of people (4, wasn't it?), all of whom are sworn to secrecy, and are unable to consult their colleagues, staff, or anyone else, about it, to get more information. Further, although the bipartisan leadership of Congress was told that this was going on, they _don't_ review the actual practice of the spying, so they don't actually know whether abuses are being committed or not. This is not oversight either.

Finally you mention the FISA Oversight Board. But that oversees FISA, not the NSA spying that circumvents FISA. So that is not meaningful oversight of the non-FISA domestic spying by the NSA either. Any other candidates for meaningful oversight?

When I wrote that there needed to be a public debate about this, not a secret executive decision, you replied: "What part of 'Classified Top Secret - Compartmentalized Safeguarded Intelligence' don't you understand??"

This is facile. You yourself would probably acknowledge that there are, at least in theory, some things that a government could do that would so deeply affect the freedom or rights of all citizens, that all citizens should have a right to know about them and debate them. And if the government were to classify those things under the designation you mention, that wouldn't change the fact that they were essential matters that the citizenry of the republic as a whole had a right to know and decide about.

I'm claiming that this warrantless spying is one of those things. If you think it's not one of those things, fine, but explain why.

Posted by: Beren | January 1, 2006 12:58 PM

A challenge we face in this surveillance matter is how to ensure we don't make the perfect the enemy of the good. I would agree that the "perfect" in this case is to have all searches backed by carefully targeted warrants. But, as Chris Ford valuably points out, many dangerous spies have been uncovered by searches or investigations that lacked proper warrants.

If we prohibit warrantless searches in all cases, how many enemy plans will go undetected? Wouldn't it be better to permit more aggressive searches, then work to ensure that there are no mass violations of civil rights? If we don't, and there is another massive attack that could have been prevented by better intelligence, then public support for civil rights, particularly for Muslims and anyone associated with them, will quickly erode. Do we want to risk this?

Posted by: JZ | January 1, 2006 01:01 PM

The press reports of the domestic spying program give the false impression that it is being conducted by high level policy makers, if not the president himself. The truth is, that while the high level policy makers may have given the go-ahead, and even set some parameters, anything this large gets implemented on a daily basis by lower-level lackeys, and therein lies one of the prime opprtunities for abuse: Assistant US Attorneys, Senior Agents In Charge and other mid-level intelligence and law enforcement types can and do include their least favorite people, be that an effective defense lawyer, an up-and-coming political opponent, or even a spouse's suspected boyfriend for extra-attention and never fear getting caught because the system is not subject to any impartial revview.

Posted by: MikeDeal | January 1, 2006 01:18 PM

JZ,

You make a very intelligent, and interesting, pragmatic point, when you argue for more aggressive searches, because if they were banned and there were another attack, support for civil liberties would plummet so far that the ultimate damage to civil liberties would be even worse. But I have to wonder whether you're actually right.

I'm sure you're right that support for civil liberties will drop like a stone if there is another attack (which I tend to think is very likely). But I don't think it would drop any less if we already had an aggressive warrantless search program in place. Right after attacks, people panic, and the public mood is temporarily willing to accept almost any infringement of public freedoms. In moments like that, I don't think people would stop and say, "Well, we did already allow warrantless spying on US citizens and it didn't prevent the attacks, so, gosh, I guess we'll just have to live with the security that we have and the attacks that it will let through." I think it's more likely that people would treat the attack as proof that the existing level of security wasn't draconian enough, and if the government had already been doing lots of very aggressive spying, the public would simply insist that the government get even more aggressive.

As I have argued elsewhere, I think that this public attitude is a big mistake. I don't think that there is _any_ achievable level of security that can completely prevent terrorism, so the fact that a terrorist attack occurs should not be seen as instant proof that security isn't tight enough. It is proof that a mistake was made, and by analyzing that mistake you can learn from it and avoid it in the future. But it doesn't mean that you had the wrong level of security, since any level of security still might have let the attack through.

Posted by: Beren | January 1, 2006 01:32 PM

JZ,

You write:

"Some contributors to this debate would have us believe that the surveillance program is resulting in mass violations of civil liberties and that America is rapidly becoming a police state with citizens 'afraid to speak out.' That's ridiculous."

Later, you write:

"The instant I see that Bush has abused his war powers by willfully spying on truly innocent citizens, I'll be the first to write my Congressman demanding impeachment. Until then, I think we need to let him do his job, and help him however we can."

But the issue shouldn't be whether the president is actually abusing the powers he has claimed right now. The question is rather, what sort of malicious use could be made in the future, of the powers that this president is now claiming?

This 'war' isn't going to go away anytime soon. As others have pointed out, we wouldn't necessarily even know if we had won. If the powers that this president is claiming will last for the duration of this 'war', then they might almost as well be permanent. (After all, even if the 'war' was over, a president could claim that it wasn't, based on information that he couldn't reveal.) And if these powers are going to be so long-lasting, we cannot content ourselves with asking whether President Bush is abusing them right now. We absolutely must ask what the _potential_ for abuse of these new and long-lasting powers will be. And there, I believe, the potential is truly dangerous. More dangerous, even, than the threat we face from terrorists.

I'd also critique your position from another direction. Not only does it not matter that we don't yet see any abuses, but also, as it now stands, we have no effective way of finding out whether there have been abuses or not, nor will we in the future, unless something changes. As it stands right now, as MikeDeal wisely pointed out, some official over at NSA could be using the system to spy on his ex-girlfriend this very minute, and we wouldn't know. It would be bad enough if Bush had claimed the authority to spy on anyone he wanted to, but Congress and the judiciary were free to go through the details of the information that was being sought and collected.

But as it is, there's no meaningful oversight. And that means, with reference to your position, that we might never find out that abuses were taking place. If you'll wait until you see evidence of abuses, before criticizing this program, you'll probably wait a long time, whether abuses are taking place or not.

Posted by: Beren | January 1, 2006 01:55 PM

Regarding the "false positives" from screening. Since I do "screening" for a living I can address this one.

"Screening" is something that is done to cast a wide net and identify as many cases as possible of whatever you are screening for. Screening tests are never 100% sensitive (that is pick up all cases), nor are they 100% specific (pick up only whatever you are screening for). In fact for most screening tests there are usually more false positives than true positives.

Thus, when faced with an abnormal screening result, you have to determine the probability that the positive screening test is a "true positive" result vs a false positive result. This is called the positive predictive value of the test. If the positive predictive value of the test is high, more aggressive action is needed to confirm the result (with a diagnostic test, usually more expensive and invasive than a screening test). If the positive predictive value is low, then you weigh your options and often choose a less aggressive action to follow up on the screening test.

But the positive predictive value of a screening test can vary among different groups. To make a long math lesson (Bayes theorem) short, the probability that a screening test is a true vs a false positive depends on the probability BEFORE testing that the person has the condition being screened for. For example the probablity that a screening test for AIDs means the person really has AIDS depends on their likelihood to have AIDS BEFORE they took the test. Or, the likelihood that a person who uses the word bomb on the phone is a terrorist depends on likelihood they were a terrorist before we listened to them.

That is, if you set up a screening clinic at the mall and give people a western blot AIDS test, if a virgin nun who never had a blood transfusion is positive its probably a false positive, because her chance to have AIDS was already pretty low before she took the test and most positive tests in her specific population group are false positive (low positive predictive value). But if an IV drug abusing gay man with multiple partners without using condoms tests positive, it is probably a true positive, because his prior risk for AIDS was already in the highest bracket (high positive predictive value).

This tends to sound illogical to people hearing it for the first time. But its all provable with Baye's theorem.

So here's the analogy. If you hear the word "bomb" on a screening sweep, and on further investigation you learn the person who said it is an A student, boy scout, leader of his evangelical "Jesus club" at church and has his application into West Point for next year, and the context was how upset he was that he bombed his SATS, its in all likelihood a false positive. If its an Arabic male who visited Afghanistan last year and the context is asking where he can go to learn bomb making technology, thats probably a positive screen and this guy merits watching. But of course its rarely likely to be so clear cut. When a frustrated citizen says "If the terrorists are going to drop bombs .....(some disliked governmnet official, etc) would be a good place to start", and that person, horrors, attended the subversive peace rally in Washington, and sent money to the subversive ImpeachBushnow group, and is in the early stages of planning a peace march in their own home town, what exactly is going to happen to them once you give absolute power to the government? To answer those who say we'll deal with the problem after this administration is caught abusing their power, first of all they are already abusing it (spying on Quakers?), and second, opposition in jail as enemy combatants denied access to laywers pretty much can't do much about abuse of power, can they?

Thus the purpose of obtaining a warrant is to "prescreen" i.e. target the eavesdropping to people who are reasonably more likely to pose a risk. That is, to prescreen for the group that has the high positive predictive value. So, you go to a judge or court and show that a person is likely to be a risk, and you spy on them. The alternative is chaos. Why is chaos such a problem?

What we have in this administration is the use of dehumanizing enemies - "they're terrorists, they don't deserve civil rights. Abu Ghraib? They're terrorists, they don't deserve to be treated with dignity. I can see you're a terrorist lover, why don't you just go live with Osama, you terrorist lover. Terrorists don't have civil rights. Only a terrorist sympathizer would not want to give them what they deserve." ad nauseum

So, we give absolute power to the Prez. He secretly screens everyone, snaring mostly innocent false positives in his net, and strips them of their civil rights because they're terrorists and don't deserves civil rights. Think your lawyer will get you off? You can be held without being charged and without a lawyer.

The very nature of hte way that Bush's opposition has been declared treasonist, terrorist sympathizers, terror lovers, etc more than spells out what will happen to any serious opposition under absolute Presidential power. You're a threat, slam, throw away the key. Absolute power means there is no one around to stop you from abusing your power. They can handily be labelled threats to national security and locked up without charges or laywers.

Posted by: patriot 1957 | January 1, 2006 02:47 PM

JZ, here is the problem I have with your arguement.

This president has miserably failed to make us safe. He failed on the 9-11 recommendations. He has failed at what a bipartisan panel of senators called our greatest risk - securing loose HEU from the USSR. (He cut funding after election, restored it after 9-11, tried to get his G8 group to pick up the bill but pissed them off so over Iraq that they reneged, and now has but funding further). ABC news smuggled spent uranium into the country TWICE. I have to take my shoes off to get on a plane but hte cargo isn't inspected, 6% of containers coming into the country are inspected. The borders are not secure. I could go on and on.

But, miraculously, I won't be safe unless my government can spy on me! The Chutapah in this claim would be laughable if it weren't so alarming.

JZ, Americans are a brave lot. We are the product of 230 years of blood shed to defend our freedom. We are only one generation from that "greatest generation" who fought and nearly 300,000 died in world warII. Yet, it has taken only 3,000 deaths in our generation to send us off the deep end, ready to toss in the towel and give up our freedoms for the mirage of a tiny amount of increased security. We claim the terrorists hate us for our freedom, but we appear ready to appease them by tossing it aside to cower in fear of them. How did this happen?

Americans have played right into the hands of those who would stoke our fears. I am praying for a real leader to arise, Democrat or Republican, who will appeal to this nation's courage instead of their fear. Churchill didn't tell people to buy duct tape and cower, did he?

Be brave JZ. Lest the blood that has stained the world for the past 230 years in defense of freedom have been shed in vain.

Posted by: patriot 1957 | January 1, 2006 03:09 PM

Patriot57 gets it exactly right. As Patriot says, "Absolute power means there is no one around to stop you from abusing your power."

According to this administration's legal reasoning, this government, or any subsequent one, could go round spying on, or locking up anyone at all, and all the usual safeguards would be gone. If anyone here thinks that that couldn't happen, I'd be thrilled to hear why (s)he thinks that. I have yet to hear any defender of this administration's legal behavior give any explanation of what would stop a president who wanted to spy on or permanently incarcerate his enemies, under the sweeping powers claimed by this administration.

Posted by: Beren | January 1, 2006 03:18 PM

About "War".
A formal declaration of war is not a necessary condition for a president to invoke constitutional war powers. The Korean conflict was not a "declared war" but this had no bearing on the Supreme Court's holding that Truman had exceeded his constitutional powers in seizing the then strikebound steel mills. They recognized that "war de facto" was as operative as "war de jure" for this purpose. No doubt the current Iraq conflict would qualify as a war de facto, as well as the war on Al Qaeda, since both have explicit sanction by Congress. Of course the War on Poverty, the War on Drugs, and the War on Terror would not likely receive quite the same treatment. Just because you use War as a brand doesn't necessarily make the product qualify for the attributes of the label. In any case, it seems to me beyond debate that we are at present in a state of war de facto.
About Math.
Thank you Patriot, for the thoughtful math lesson. It is really quite helpful in thinking through how NSA might go about its business. It has never seemed to me plausible that a keyword type search for something like "bomb" on the universe of communications would be very useful. Among other things, this blog would promptly make all of us terrorist suspects simply by association, even Chris Ford, perhaps at the top of the list on the basis that he protests too much. More likely they would first prescreen the communications universe by starting with a suspect terrorists address, either phone or email and develop a linked network list n levels deep of all addresses with which it had and/or has communications. Isolating that selected set of communications would no doubt raise the positive predictive value of further algorithmic tests of content; whether enough to be useful by itself is another matter but it would probably be a good start.
The public mindset.
Beren, I very much agree with your assessment of the probable public response to a further attack as well as your characterization of it as a mistake. Risk cannot be entirely removed from life and the illusion of having done so is just that, an illusion. Risk is certainly something we should confront, assess, and take such measures as we can to manage and reduce; but this is something best done in context, in recognition of ALL risks, not just the singular one of a terrorist attack. The risk to our civil liberties in the current case is also real enough to those of us who lived through the 50's, 60's, 70's, and even the 80's. Think about it. Are not the real risks to life and property associated with hurricanes, tornadoes, and floods a whole lot higher than those of a terrorist attack? We should not lose our perspective in the emotion of the time.
Searches, warrantless or otherwise.
The FISA requirement for a "warrant" with regard to intelligence wiretaps has always been a limited one. It only applies to US citizens or legal permanent residents of the US. Indeed FISA contemplates warrantless taps within it, subject to review by the court within 72 hours. Its purpose is not to hamstring the legitimate powers of the executive branch; its purpose is to ensure that these are not abused, i.e. to reduce the risk to our civil liberties that unchecked and unsupervised executive power poses. The assessment of this risk has a substantial foundation in the decades I mentioned earlier. Nor is it a distant risk. You just have to go back to Clinton's perusal of selected FBI files in the White House in the 90's. The temptation to use power for purposes never intended always exists and is sooner or later inevitably exercised. It is not a function of political party, it is a property of human nature. Witness most recently Scooter's dedicated efforts to get from the CIA the particulars on Ambassador Wilson's wife Valerie, and for what purpose?
I have no desire or need to prove that President Bush has violated anyone's civil rights with the NSA program he has authorized. For me to be alarmed it is sufficient that he claims the power of his office to do so should his singular judgment so dictate, at his sole discretion. Nor does it matter whether I trust President Bush or not. Even if I should, I might not trust his successor. Passing personalities should play no part in this.
I do not accept that an "aggressive" search cannot be warranted; that there is somehow a distinction between an "aggressive" search and a warranted one. One must instead ask just what exactly is meant in this context by the term "aggressive"? Am I to simply conclude that an "aggressive" search is in some way qualitatively different such that it cannot meet the conditions for obtaining a warrant, either before the search event or 72 hours later, should time to act be a factor? Or are we simply branding an abusive search with a more attractive term? I think that is a fair question.
We should remind ourselves that the necessary conditions for obtaining a FISA warrant are NOT the same as those for obtaining a domestic wiretap; specifically, probable cause, as it is understood in our domestic courts, is NOT a requirement. What we need to understand, and do not understand, is precisely what kind of search, "aggressive" or not, is it that cannot be warranted under FISA and is also so essential to our antiterrorism effort. It is indeed possible that such a search exists, but the better remedy for the problem, should it exist, would be for Congress to adjust the FISA warrant requirements accordingly, as this would continue the established protection of the FISA court for our civil liberties. That has not been the administration's chosen course of action and it has offered no specific and coherent reason why not. That in itself is sufficient reason to raise the level of alarm, particularly among those of us who treasure the Constitution, in its entirety, as the essential architecture of our national society.
It remains to be seen what Congress will do in the face of this challenge by the President. It is not entirely powerless on account of being under the control of the same party as the President. Both McCain's torture amendment and the short-term renewal of the Patriot Act demonstrate that. Ultimately it has at its disposal the power of the purse. If nothing else it could simply preclude funding for this specific program or any like it. Should Congress not respond appropriately I certainly hope that this will find its way to the Supreme Court where a more appropriate balance might be restored between executive power vs. citizen power derived from the fourth amendment. It is certainly not clear to me at this point exactly what will make this question appropriately "ripe" for consideration by this court, but absent Congressional action, I trust something will.

Posted by: Cayambe | January 1, 2006 07:32 PM

Appropriately checking the president's power in times of crisis has always been a tricky matter. On the one hand, as many have pointed out, the potential for abuse is considerable. From Nixon's "enemies list" to Clinton's snooping in FBI files, we have a history of administrations abusing investigative and related powers. The Fourth Amendment and its various interpretations are meant to protect us from these abuses. We should relax these protections only with great care.

On the other hand, the forces arrayed against a modern president in times of conflict (particularly this one) are equally considerable. In addition to confronting the enemy, the president must also contend with non-enemy players (e.g., the media, high-visibility protesters, adversarial internet groups, etc.) who don't support him. Their power to disrupt a war effort directly by compromising sensitive operations or indirectly by weakening public resolve is vastly stronger now than even a few years ago and, in my view, rivals what any potential adversary might deploy on the battlefield. Would WWII have ended as it did if FDR had had to contend with the non-enemy players that George Bush faces today? I'm not so sure. Any chance FDR would have treated civil liberties a little less sensitively in trying to confront these more powerful players if he had faced them? I'm pretty sure.

Which brings us to the current matter. In this conflict, we are contending with an enemy we've never faced before. He is stateless, hard to pin down and neutralize, adept at leveraging non-enemy players to aid his cause, and able to deliver devastating blows with few resources. Surveillance of the enemy and anyone he may associate with is probably the most important weapon we have, surely more so than in any prior conflict. This surveillance is vital not just to learn the enemy's plans, but also to learn more about the enemy and how he attracts support.

The president has assigned high importance to gathering intelligence through surveillance, so much so that when his current approach was challenged directly, he wasn't even remotely apologetic. I haven't seen this kind of resolve when other presidents have been similarly confronted. My guess is that surveillance is far more essential in the current conflict than any of us realize.

Clearly, I believe that the benefits of allowing the president to pursue war-related intelligence as he sees fit, at least for now, outweigh the potential risks to our civil liberties. Though I represent a minority view in this discussion, I know many thoughtful and careful people who would agree with me. The good news is that whatever our respective positions, the genius of the American system is that a diversity of credible voices will weigh in on this matter, and the end result will likely shape the president's powers in a way that's both appropriate to the conflict and supportable by a majority of the people.

Thank God for the United States of America.

Posted by: JZ | January 1, 2006 11:17 PM

Sorry JZ, I'm not buying it.

Your arguement might have some validity if this President was actually working to make us safer. But the failed 9-11 report card belies that.

This administration has failed to secure our ports and borders and nuclear and chemical facilities and most of all our vulnerabilities. ABC news smuggled in enough spent uranium to make a dirty bomb - twice! Even though Steven Flynn (fmr Coast Guard) testified to Congress that our ports could be secured for the cost of 3 days fighting in Iraq and 2 fighter jets.

Thus the arguement that affording Bush unchecked power to spy is the "magic bullet" that will make us safe just doesn't pass the smell test. It really doesn't do much good to know they are going to set off a bomb somewhere if they have free reign to walk across the border as just one of thousands of illegal immigrants every day, except they have a nuclear bomb in their gymbag, or almost free reign to smuggle contraband into shipping ports.

That alone should be enough for citizens to demand that Bush show he can manage security competently before we give him our civil rights with no oversight!

But there's more. Since day 1 this administration has been a bull in a china shop determined to remake America in their image. And they appear to have found the historical formula to achieve it "the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

And you have to admit what this administration has had to sell is fear, and they've done a good job of it. Fear sells even better than sex. No statesman like "all we have to fear is fear itself" or we must pull together with "blood toil sweat and tears" for this president. Oh no, why do that when fear sells so much better and is so much more likely to stop people from really looking at you. Just begin every speech with a reference to 9-11 and you're golden! Its easy to keep reminding the people , just say... The terrorists are coming for you...for your children. There will be another attack. Be afraid, be very afraid... I am the only one who can protect you, you must give me wide powers to protect you...The opposition don't want to protect you. You can only trust me in this time of crisis and war....Of course I would only use those expanded powers for good purposes to protect you: "The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures...The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one."

Those who fail to study history are doomed to repeat it.

I'll close with two more quotes: Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety." and ""The citizen who sees his society's democratic clothes being worn out and does not cry it out, is not a patriot, but a traitor."

The quotes: Goering, FDR, Churchill, Hitler, Ben Franklin and Mark Twain.

Posted by: patriot 1957 | January 2, 2006 01:10 AM

Jz,

I hesitate to quarrel with your position because it is not an unreasonable one and it is put forth with a refreshing civility that must be commended. But this is a debate so I will make a few observations.

First, you should not feel too lonely here. As best I can judge, despite the media, the Internet, and talk radio, you still have the majority of the US public in your corner on this particular matter. Nor is all of the media against the President. By and large radio and the Internet throw more weight in his corner offsetting, even negating, the large part of the so-called mainstream media in the other corner. With regard to the Iraq war in particular, the large majority that once was has slipped to a large minority or at best a bare majority. I don't believe that the combined media is the prime mover of that slide; rather it simply reflects the brutal effect of the actual events in Iraq over the passage of time relative to public expectations at the beginning of the war.

I would take issue with the notion that it is the media that compromised this particular operation. The individual(s) who compromised this operation were almost surely working inside or at least close to this operation and leaked it to the media for what they felt were honorable reasons. I would conjecture that there are two likely motives. One would be the fear that what they were doing would be eventually considered illegal and they would be held personally accountable for it. Look who was thrown to the wolves at Abu Ghraib, certainly no officers. The other potential motive is that what they were doing was fundamentally wrong, unconstitutional, or immoral and had to be stopped. Only time will tell whether this individual or these individuals were misguided or heroic, but the probability that it was done for partisan, personal vengeance, or traitorous motives seems most unlikely to me. None of us knows for sure, and in all probability we are not likely to find out for many years to come, if ever. If we do, the someone or ones will likely be behind bars.

FDR does not offer a very good example of the wartime benefits of suspending civil liberties, quite the contrary. His most noxious act in the name of national security was to intern the entire population of Japanese ancestry in concentration camps for the duration of the war. Not just Japanese citizens mind you, but American citizens of 3rd, 4th and 5th generation Japanese ancestry. Today we would call this ethnic cleansing and a crime against humanity. To revisit Patriot's mathematical point, the positive predictive value of this screen was so low as to be absolutely useless. Nonetheless, it had widespread public support at the time. And we might also note, the Congress and the Supreme Court sanctioned it. Strangely, FDR did not do the same with our population of German ancestry. More to the point, I don't know anyone who can seriously say with a straight face that this particular action by Roosevelt had any material effect whatsoever, positive or negative, on the course of the war. The only real effect was to stain our national self-esteem and reputation for years to follow and justly so.

The case in front of us is not that one and I do not assert that the consequences are in any way equivalent. But what I think might give you pause is that the nature and heart of your argument for your current position is even more persuasive for the action taken by FDR as it is for the current action being taken by Bush. I say more, because contrary to what you say, we were in far more mortal danger from our combined enemies in WWII than we are today from terrorists. Indeed, had our carriers not been at sea due to sheer luck during the Japanese attack at Pearl Harbor, we might well have suffered direct attacks on US soil far more threatening to the nation than the isolated blow Al Qaida delivered to New York. As it was, we only suffered the loss of a few islands in the Aleutians. But seriously, this nation turned itself on its ear to confront the threat it faced in WWII, to include civilian rationing, the draft of millions, and the dedication of the major part of our economy to the war effort. The actual threat we face today from Al Qaeda is in no way comparable. It is precisely this lack of perspective, of rational context, that concerns me most. It elevates and enlarges the perceived threat to entirely irrational levels that then justify wholly irrational responses. This is not to say we should tolerate IED's being hurled at our skyscrapers. Not at all, but lets not panic and lose our sense of perspective.

I don't think too many of us would disagree with the need for intelligence on and surveillance of the enemy, to include any residents of the US, citizens or not, who are conspiring or cooperating with the enemy. Where we depart is in the level of trust we place in the executive branch to make such a determination of US residents on its own.

I should also say that I join you in your admiration of President Bush's resolve. I give him great credit for the immediate actions he took in Afghanistan and it is my own judgment that we were very fortunate that it was he who was President at the time. I do not for a minute believe that Al Gore would have taken such decisive action in these circumstances and I would have found that unconscionable. There are potential Democratic presidents who I think might have, but not many. Nor do I believe Bush decided to go to war in Iraq for venal or evil reasons. I opposed that particular decision for sure, but I don't question the sincerity of his judgment, or as I would have it, misjudgment. Further, having made the mistake, I see no other responsible course for this nation than to see it through in a manner that minimizes the damage we have caused; so you will not find me in the cut and run crowd or unsupportive of his efforts to bring that misadventure to a successful conclusion.

We shall see now what unfolds in the Congressional later this month or in February.

Best regards

Posted by: Cayambe | January 2, 2006 04:32 AM

As Beren says in his post "According to this administration's legal reasoning, this government, or any subsequent one, could go round spying on, or locking up anyone at all, and all the usual safeguards would be gone." Exactly. If I thought everyone that had access to classified information could be trusted, I wouldn't be worried about whether the law (and yes, getting warrants is the law) was followed. Unfortunately though, even if you trust the president, he isn't the person carrying out this "mission". The law is there to safeguard us against those people we can't trust, whether or not they feel like following it.

Posted by: jj | January 2, 2006 07:24 AM

I want you all to remember this post. I want you all to think about it it if and when a democrat--let us say, Hillary Clinton--becomes President on January 20, 2008.

I want you to watch and listen as the present debate on the expanded powers of the Executive Branch--a claim that Bush and Cheney are doggedly insisting is needed in this so-called war on terror--takes a curious new turn. I want you to remember when you see republicans suddenly wringing their hands about the dangers of expanding the power of the Presidency in the way Bush and Cheney are trying to do, when the President is one Hillary Clinton--or any one of a number of democrats who have a fair shot at that office.

Remember this post. Then we can really determine how serious republicans are about this issue. Remember the supporters of Bush's position on this forum and bounce it against what they will be saying if and when Hillary takes office. I should prove really interesting.

Posted by: Jaxas | January 2, 2006 09:06 AM

I'd like to offer some specific comments on the many fine points made by Patriot 1957 and Cayambe. Patriot first:

"Sorry JZ, I'm not buying it." No worries! I never expected to change anyone's mind. My only reason for spending time here is hone my own arguments and learn from others, which I think I'm doing.

"...ports could be secured for the cost of 3 days fighting in Iraq and 2 fighter jets." Maybe. But what does this security entail? Invasive inspections. Ubiquitous surveillance cameras. Expensive, unionized bureaucracy. Time-consuming processes. Do we really want to subject our commerce to the same (often pointless) inconveniences we face at the airport? Would such measures really be less intrusive on our liberties than warrantless electronic surveillance?

I worry about over-emphasizing internal defensive measures. It's easy to inebriate ourselves on such measures as they invariably make us feel better (i.e., no casualties involved, plenty of jobs for "hard-working Americans," etc.), even though they can never be adequate. In addition, I believe that these measures, along with the bureaucracy and isolationist national mindset that accompany them, are far harder to unwind in a post-war world than more aggressive surveillance. Also, let's not forget that the enemy can always find his way around fixed fortifications. French confidence in the Maginot Line was misplaced, as would our confidence be in the security enhancements urged by Stephen Flynn and others. George Bush is right to stress that we must "take the fight to the enemy."

"...free reign to walk across the border as just one of thousands of illegal immigrants every day..." It's easy to complain that the feds are doing nothing to secure our borders, but how many times have we read about local authorities who proudly refuse to help out? ("It's not my job." "I refuse to detain or report illegals because doing so smacks of discrimination."). Until there is a consensus that we must work together, the immigration problem, and the security risks it poses, can't really be resolved.

"...bull in a china shop determined to remake America in their image." I hear you on this one, but I think it's been valuable, though in some ways costly, to have an administration willing to rattle a few cages. We've gotten much further on, for example, exposing Oil for Food, French duplicity, and Chinese human rights violations that we would have otherwise. In addition, I think that one reason we've suffered no major attacks since 9/11 is the universal fear among al-Qaeda and its supporters that bull-in-a-china-shop George Bush would respond to such attacks with overwhelming devastation.

"...the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger." This assumes that people like me fear the enemy only because we've been misled by George Bush. I can assure you that this is wrong.

Separately, do we really believe that the president's sole motivation in the current matter is to gather power to spy on and crush political enemies? That he's obsessively interested in selling fear and misleading people? That he's irredeemably evil and wants only to use his remaining 36 months in office to destroy the Constitution? I wish we could get beyond this rhetoric and instead focus our collective energies on helping the president to win the war.

Now Cayambe....

"...refreshing civility." Thank you. I think it's important.

"As best I can judge, despite the media, the Internet, and talk radio, you still have the majority of the US public in your corner..." I think you're right. I recently moved from Texas to the NY area, and given the media coverage here, it's easy for me to forget that, thankfully, most of the country doesn't see eye-to-eye with the op-ed writers for the Times.

"I don't believe that the combined media is the prime mover of that slide; rather it simply reflects the brutal effect of the actual events in Iraq over the passage of time relative to public expectations at the beginning of the war." Excellent point; couldn't agree more.

"I would take issue with the notion that it is the media that compromised this particular operation." It was compromised in two ways. First, the insider revealed it to the Times, and second, the Times decided to publish it. Why the insider elected to reveal it only to the Times is something I'm sure we'll explore. But the Times did specifically decide to publish, even after the president asked both the editor and the publisher, in the Oval Office, not to. The lesson is that you can't count on the press to restrain itself when it comes these matters. That's why they can only travel in military press pools and can't take pictures of flag-draped caskets at Dover.

"Look who was thrown to the wolves at Abu Ghraib, certainly no officers." What about Brig. General Janis Karpinski, who was found guilty of dereliction of duty? Or Lt. General Ricardo Sanchez, who was denied a fourth star?

"FDR does not offer a very good example of the wartime benefits of suspending civil liberties, quite the contrary. His most noxious act in the name of national security was to intern the entire population of Japanese ancestry in concentration camps for the duration of the war." You're right, this was a terrible act. My only point was to imagine how much more aggressive he would have been had he faced some of the challenges confronting George Bush. I think he would have made Bush look like an ACLU poster child.

"...we were in far more mortal danger from our combined enemies in WWII than we are today from terrorists." I'm not sure this is a rational assumption. Yes, it's true that if our carriers had been at Pearl, the war would have been harder to prosecute. I'm not a military historian, but I can't believe that even if the Japanese had destroyed our carriers at Pearl, they would have had the resources to prevent the arming we undertook in the years following, which ultimately overwhelmed both them and the Germans.

I'm not sure this is a safe assumption, either. Terrorists today have a vastly greater ability to inflict damage. Look at what they did with four planes. The fact is that a few terrorists with the right equipment can inflict more physical and economic damage than the entire Japanese Army ever could. I'm mindful of Patriot 1957's fear mongering point, but it's unwise to simply dismiss these capabilities and their first use on 9/11 as "nothing to panic about."

"I don't think too many of us would disagree with the need for intelligence on and surveillance of the enemy, to include any residents of the US, citizens or not, who are conspiring or cooperating with the enemy. Where we depart is in the level of trust we place in the executive branch to make such a determination of US residents on its own." Precisely. In the final analysis, it's a judgment call, like so many other aspects of war, or of presidential leadership.

"Further, having made the mistake, I see no other responsible course for this nation than to see it through in a manner that minimizes the damage we have caused; so you will not find me in the cut and run crowd or unsupportive of his efforts to bring that misadventure to a successful conclusion." It's too early to characterize this as a mistake. Instead, I'd characterize it as a calculated risk, maybe a gamble, in response to a very difficult challenge. Whether it turns out well or poorly will depend in part on whether we can get behind the president, not to help him "fix a mistake" but to help him win a war that can only be won with collective effort.

Cheers. JZ

Posted by: JZ | January 2, 2006 09:40 AM

The biggest problem I have with the national security debate is the absence of such a debate. The balancing of civil liberties against the right of Americans to be secure in their homes and upon American streets is of necessity on-going and dynamic. The search for the optimal balance struck between protection of civil liberties and effective national security never has a simple answer or clear resolution.

What has precipitated a constitutional crisis in this on-going debate is the behavior of and actions taken by the current administration. It consists of a dangerous mixture of arrogance and ignorance. The Administration's efforts to justify its circumvention of the FISA Court in conducting warrantless searches resembles nothing so much as the bull in the china shop.

The first argument that the Administration attempts to make is that 9-11 precipitated a domestic crisis in protecting Americans against asymmetric terrorist attacks. As a result, the President can do anything so long as it is likely to be efficacious. If it appears necessary to protecting American security, it is allowable under the Constitution. In short, the end justifies the means. When I studied Constitutional Law, I never came across this rule in decisional law. Spying on citizens without warrant or constraint was the though of thing most Americans of my generation associated with the NKVD and the " Evil Empire".

The second argument made by this Administration is that as Chief Executive with the authority to conduct war and defend the nation, the President has "plenary power" to engage in warrantless searches. If I understand this argument correctly, it means that when the framers drafted the Constitution and created the separation of powers and the system for checks and balances, they put the "war powers clause" in a separate compartment making it paramount to everything else in the document. Such a specious argument is again without precedent.

I always thought that Congress enacted the laws and the Executive Branch implemented and enforced the laws. More specifically, the Executive Branch had to have legal authority, from either the Constitution, enacted authorities or decisional law, in order to act. The Executive Branch was not able to authorize its own actions. This Administration seems to have taken the "black letter" principal of administrative law and , instead, has concocted a fabrication to allow itself to bootstrap the Executive Branch into an autonomous power within the Federal Government.

By so doing this Administration has done grievous damage to the organic structure of our constitutional form of government. Vince Lombardi's famous dictum ("Winning is not the most important thing; it's the only thing!) applies to professional football not constitutional law.

Posted by: RFK | January 2, 2006 11:23 AM

The biggest problem I have with the national security debate is the absence of such a debate. The balancing of civil liberties against the right of Americans to be secure in their homes and upon American streets is of necessity on-going and dynamic. The search for the optimal balance struck between protection of civil liberties and effective national security never has a simple answer or clear resolution.

What has precipitated a constitutional crisis in this on-going debate is the behavior of and actions taken by the current administration. It consists of a dangerous mixture of arrogance and ignorance. The Administration's efforts to justify its circumvention of the FISA Court in conducting warrantless searches resembles nothing so much as the bull in the china shop.

The first argument that the Administration attempts to make is that 9-11 precipitated a domestic crisis in protecting Americans against asymmetric terrorist attacks. As a result, the President can do anything so long as it is likely to be efficacious. If it appears necessary to protecting American security, it is allowable under the Constitution. In short, the end justifies the means. When I studied Constitutional Law, I never came across this rule in decisional law. Spying on citizens without warrant or constraint was the though of thing most Americans of my generation associated with the NKVD and the " Evil Empire".

The second argument made by this Administration is that as Chief Executive with the authority to conduct war and defend the nation, the President has "plenary power" to engage in warrantless searches. If I understand this argument correctly, it means that when the framers drafted the Constitution and created the separation of powers and the system for checks and balances, they put the "war powers clause" in a separate compartment making it paramount to everything else in the document. Such a specious argument is again without precedent.

I always thought that Congress enacted the laws and the Executive Branch implemented and enforced the laws. More specifically, the Executive Branch had to have legal authority, from either the Constitution, enacted authorities or decisional law, in order to act. The Executive Branch was not able to authorize its own actions. This Administration seems to have taken the "black letter" principal of administrative law and , instead, has concocted a fabrication to allow itself to bootstrap the Executive Branch into an autonomous power within the Federal Government.

By so doing this Administration has done grievous damage to the organic structure of our constitutional form of government. Vince Lombardi's famous dictum ("Winning is not the most important thing; it's the only thing!) applies to professional football not constitutional law.

Posted by: RFK | January 2, 2006 11:24 AM

Posted by: impeach BUSH wrote:
===========================================
"The Bush NSA oversight scheme is unacceptable due to lack of checks and balances."
===========================================

That, in a nutshell, is what this whole issue revolves around, and the anger of the population -- not partisanship; not smoke and mirror blame games.

We have three branches of government that is suppose to check the power of each. When one branch claims it has unchecked authority, the other two are suppose to step up and stop the renegade from sinking the country overnight.

Unfortunately, in 2005 (and I believe in 2006 as well), the other two branches of government are so weak, dysfunctional and corrupt to even care. They'd rather be making talking points, and trying to gain 15 minutes of future campaign fame, by making total asses out of themselves, instead.

We elected each bozo into government, and the American public got a quick history lesson of the consequences.

Now will the American public own up to their responsibilities and actually demand that out elective officials actually work within the Law? Or will it be, again, more hot air by Know-Nothings who claim the sky is falling, yet take bets when/where at the misery of *everyone else*?

Reality is those politicians aren't in Washington to do the "public good", they're there to groom connections for a more lucrative career as lobbyists. They'll do their "time" to "retire" to K Street.

So all this hot air about what's Right and Wrong means nothing when it's just used as political hay. That bonfire has long burned and the vultures we elect have been having champagne weenie roasts at our expense (with our permission at that!!).

Either fix the system (and stay at it despite terror or some other tragedy) or STFU America you got what you voted for -- or careless to NOT vote for.

SandyK

Posted by: SandyK | January 2, 2006 11:26 AM

How refreshing! A civil, courteous, intelligent debate. Many thanks, Patriot57, JZ, Jaxas, Cayambe, jj and others.

It seems like the overall consensus is that what we have to do is balance two risks, the risk of terrorism, and the risk of executive abuse. Since it's a balancing act, people on each 'side' should explain how they would balance it, not how they would tip it over. So those of us who, like me, oppose this warrantless domestic spying should have to explain what system we see in place, or would put in place, to enable the government to track actual terrorists who constantly change phone numbers, etc. (of course, our job is made a bit harder by the fact that Bush hasn't explained what was wrong, in his view, with FISA, so it's hard to know what might need changing). On the other hand, those who support warrantless domestic spying should have to explain what safeguards they see in place, or would put in place, that would stop the executive from spying on anyone it wanted to, not just under this president, but under any other, for the duration of this 'war'.

So, for my side of the balancing act, I'll suggest that if FISA seems too cumbersome as it is now, I wouldn't mind extending the time-limit within which the administration can spy before going and seeking a warrant. (Could it be that the decision to go around FISA was mostly just laziness, combined with Cheney's almost pathological defensiveness about executive privilege? I wouldn't be that surprised...) From my point of view, even giving the administration an entire week, or even a month, of free spying on someone before it has to go and explain itself to a FISA court, is still vastly better than never having to face external review at all. The former case wouldn't be ideal. But in the latter case, there's simply nothing at all (it seems to me) to keep the administration from spying on every single citizen in the entire country if it wants to.

As for the other side of the balancing act, perhaps a defender of this administration's warrantless spying (JZ, maybe?) could answer the question, which I haven't yet seen answered, "What would stop a president (or someone at NSA), with these powers, from spying on anyone and everyone in the country that he wanted to?" If there isn't anything, please reflect on the fact that even if you trust this president, you don't know whether you'll trust the next one. And as our founders knew well, the powers given to branches of government should not be based on trust in the good faith of those who will occupy them.


A couple of general comments as well:

JZ, you write, on port security, "Do we really want to subject our commerce to the same (often pointless) inconveniences we face at the airport? Would such measures really be less intrusive on our liberties than warrantless electronic surveillance?"

A fair point. But I think the answers are, "yes," and, "yes". Part of what makes some of the searching at airports 'pointless' is precisely the fact that we're not inspecting cargo at the same time. And such measures would be _much_ less intrusive from a civil liberties perspective.

First, as many people have pointed out in the context of border searches, you cross borders on purpose, and you know that you're doing it. The same thing is true when you arrive by ship, or mail or ship something transnationally. With phone-networks the way they are now, on the other hand, you can be making an 'international' call without even realizing it (actually, Bush's legal logic wouldn't really prevent monitoring of strictly domestic phone calls either, I think).

Second, the potential for abuse is much greater. An executive not subject to external review could widen its spying on terrorist's phone calls to spying on all citizens' phone calls. But it's hard to see what sort of abuses could result if the administration expanded its monitoring of cargo-searches. In that case we're not talking about giving the executive expanded legal authority that could be abused - we're just talking about the executive fully using the authority that it already has.

On the risks associated with terrorism, I think that Cayambe and Patriot57 are right. We all still have a much higher chance of being harmed or killed in car crashes than in terrorist attacks. But we're used to car crashes, so we take that danger in stride. We try to avoid it, but we don't let fear of it paralyze us, and we make cool-headed calculations about how much money we're willing to spend, and what kinds of modifications to our lives and laws we're willing to accept in order to lessen the danger of car-crashes, and what kinds of modifications or expenses we're not willing to accept, even though they could make us a bit safer. JZ, in an intelligent post pointing out the capabilities of modern terrorists, took issue with someone who said that terrorism was, "nothing to panic about," but I think the key word there is 'panic'. It certainly is something to worry about, to be concerned about, to plan against, and to try to prevent. But not to panic about.

JZ brings up a crucial issue, and asks, "[D]o we really believe that the president's sole motivation in the current matter is to gather power to spy on and crush political enemies? That he's obsessively interested in selling fear and misleading people? That he's irredeemably evil and wants only to use his remaining 36 months in office to destroy the Constitution?"

No. But such a belief isn't necessary, for opposition to the NSA spying. As Cayambe rightly says, "Passing personalities should play no part in this." I would trust my best friends with the powers that Bush has claimed, I think. But that doesn't matter. If they were presidents, I would still be unalterably opposed to giving them such powers, because there's no way to give those powers to any particular president without also giving them to the presidency in perpetuum. And you never know who will some day occupy the Oval Office. Unless you trust, not just this president, but _every_ future president to refrain from abusing these powers, you should refuse them even to this president, or at least modify them so that there's oversight. Without safeguards, any governmental power will eventually be abused.

A Roman in the late Republic / early Empire might well have said, "I trust Caesar," or "I trust Octavian/Augustus." Fine. _Perhaps_ they were trustworthy. But do you also trust Tiberius, Caligula, Claudius and Nero? Do you trust Domitian, and others not yet born? Because whatever powers you give to Caesar Augustus, you give to all of them as well.

Such sweeping powers cannot be given to Bush without being given to all future presidents as well. This is a drastic expansion of executive power. For this reason (to respond to what you say, JZ, about the NYTimes) I think that the NYTimes had no choice but to publish the story. It is precisely situations like this that I think our founders were thinking of when they guaranteed the freedom of the press. They recognized that without information about what our government is doing, our ability to vote and be represented is almost meaningless. This is something that we simply had to know. I don't actually think it's likely that it compromised our national security, but even if it did, so be it. The only other option is that the executive could start spying on any US citizens without warrants or external review, and we wouldn't even know about it. At that point, the damage to civil liberties might have been incalculable.

Thanks to all for the insightful posts, and especially to JZ for the thoughtful disagreement.

Posted by: Beren | January 2, 2006 12:15 PM

The single biggest problem I have with President Bush's action regarding having the NSA monitor domestic phone calls is that the apparently needless violation of the FISA act. It seems from a reading of the act that all the necessary tools were already in place to monitor whatever phone calls are necessary and in a timely manner. It is the obsessive compulsion of this administration to treat the law as if they know better. If they felt the law was insufficient why not simply ask Congress to amed any sections of the law that needed amending? Why the obsessive withholding of information from Congress and the American people? Even Preident Lincoln asked Congress to approve his suspension of Habeas Corpus. If this adminsitration would stop treating the rest of us as if we were the enemy and they know best how to defend us we might be willing to cut it more slack. But this a President and its right wing supporters treat everyone who doesn't march in lock step as a potential traitor. Speaking for myself I live in NY City and would gladly risk my life (I also enlisted when I was 18) to preserve our freedom from government survielence. We risk more then our lives when we hand over power to the government. We risk the future of our children and our children's children to live in liberty. Millions or Americans risked their lives and hundreds of thousands have given theirs so we and our posterity could live in liberty. Many of you trust this President to not abuse the power we hand over today. But can we trust the next President or the next or the next? I certainly do not. Better to risk our lives today then risk the liberty of our posterity tomorrow.

Posted by: kchses | January 2, 2006 12:26 PM

Beren - "..could you tell me what powers, if any, you believe that the executive should _not_ have right now? ....it's tempting to conclude that you just want to give Bush a complete blank check. What is he not allowed to do?"

Executive power is enumerated in the Constitution and in 220 years of implementation of measures found acceptable by the polity, and unchallenged by judicial review. There is more to the Constitution than the 7 Amendments to it the ACLU thinks are absolute. Read it sometime. You will be refreshed in co-equal branches and separation of powers, meaning unlike the Israelis, the Executive here does not sit below the SCOTUS. And Congress may pass no law usurping Excutive Powers without a Constitutional Amendment.

Beren - .."you seem to be saying that the terrorists know we could be intercepting their communications, but they went ahead with them anyway, because they had to. If that is what you think, then what has become of your original claim that the NSA spying leak was so damaging? On your own showing, the effect of the leak is just that the terrorists now know what they always suspected anyway, and they are still taking all the precautions that they can, just as they always were....."

No, that enemy powers knows we might be spying on them to assess the threat they pose to citizen's lives and liberties does not mean they know what are still safe communications conduits, exactly what we are looking at. That is why the sources and methods are safeguarded as the nation's highest level military secrets, secrets some people will pay enormously for disclosing to the enemy.

Beren - "You also write, "the whole idea of warrants is fatuous in spying to begin with." It may be fatuous in the world of espionage. However, in the world of law, and the life of citizens in a free republic, it is not."

Unless you wish to safeguard terrorists, spies, and traitors - it is rather important to find out who they are. You seem to think the 4th Amendment protects them from scrutinity. Counterterrorism starts with finding WHO they are, knowledge without which we are unable obviously to create and of the warrants you demand. The Rosenberg traitors were ID'd by the NSA, THEN warrants were issued to assemble a criminal case that "safeguarded" their civil liberties all the way to the electric chair.

Beren - "You need to cite examples of executive power that a) were directed against US citizens, not foreigners, b) were not subject to meaningful review, c) were not authorized by any law, d) violated the specific prohibition of law enacted by Congress, e) did not occur during a state of war declared by Congress, and f) were not later determined to have been, in fact, unconstitutional."

a. Refer to the Civil War and Shays Rebellion for starters.
b. Ibid.
c. Congress shall make no law usurping the Executive's Article II Powers w/o Constitutional Amendment. Congress is not sovereign over the Executive. The People are sovereign over both. That is why we have elections and political power shifts, based on the will of the people as the final check. All Presidents, even the weakest one, Carter, claim neither the War Powers Act nor FISA intrude on Article II Executive Power.
d. Congress is not sovereign over the Executive nor SCOTUS.
e. You are back to your magic word again. Congress votes since Korea to authorize not war but "police actions" in accordance with language demanded by UN Charter signatories. In the Truman steel mill case, the SCOTUS said that Korea was indeed "war de jure" - when you invade, kill, conquer and see caskets and limbless soldiers come back, it's silly to claim that "it isn't REAL WAR because the magic word wasn't uttered by Congress". Even sillier to take up the Marxist case from Vietnam that all American actions are illegal, no Powers exist to wage it, the UN Charter should be defied, and the President impeached for doing what Congress voted on, but no member of Congress impeached for voting so.
f. Nothing Washington, Jefferson, Madison, Lincoln, Grant, Wilson, FDR, Truman, JFK, LBJ, Nixon, Carter, Reagan, Bush, Clinton, Bush II did in war was deemed to have "trammelled precious enemy civil liberties" the way the ACLU or other advocates of the enemy claim. A case might be made for Ex Parte Milligan, but that one just said the Confederates formally surrendered, war's over, so any Rebs in insurrection after that have to be tried and hanged by a civilian court, not a military one.

Beren - "(your) claim that it didn't much matter whether Congress declared war or not. From a constitutional point of view, that's a pretty difficult position to defend, I think....."

Funny, it has been defended by every President since Truman and left alone by SCOTUS. That seems to be a good track record.

Beren - "You have to remember that Congress specifically refused (when asked) to include language that would have included the United States in the AUF, and so you'd have to conclude that the AUF did _not_, in intention, authorize warrantless _domestic_ spying."

No, Congress authorized the CIC to go after enemy everywhere in the world, inc. unlawful combatants in the Homeland. What Congress did was say this was not a case of insurrection or invasion that would trigger general emergency suspension of rights - so no martial law for the 9/11 attack like their would be if WMD is used here.

Beren - "And at any rate, as you know, that same Constitution gives Congress the sole power to declare war, which it has not done."

No, again, the semantic issue started with lawyers who were closely associated with the Communists does not mean the Lefties are right. In Lefty mindset, this forms the ideology base to say that since all wars since Vietnam have not been "sanctified with the Magic Word" - they are all illegal, hence no combat lawful, and anyone the US killed in Combat - MURDERERS!!! This is the basis why certain Democrats called American soldiers in the Vietnam era "murdering baby killers". Why the red diaper spawn (children of communists active in their NYC, Hollywood centers - who DO refer to themselves as red diaper babies) have always led the Left and various anti-war groups long after a CPUSA membership card became unfashionable - started this semantic game - to serve Soviet interests.

Beren "You also write, "If your Czech wife is uncomfortable with the fact that this did not begin with the evil Bush-Hitler, there's always a plane flight back to Bohemia..."Leaving aside the discourtesy of the suggestion, Bohemia is just one part of the Czech Republic. She's from Moravia, not Bohemia."

Whatever. If it wasn't for FDRs undeclared Naval War, aid to Russia and the UK in contravention of Congress pre-Pearl Harbor, at best, she would have grown up speaking Russian or German. And generally, the US is fed up with immigrants or foreign tourists lecturing us on how fouled up our country is based on their value systems. Israelis, Iranians, Swedes, Brits, Froggies, even Russians, Saudis, and Czechs just can't resist.


Beren - "First, 'internal NSA oversight'. Is it meaningful oversight, when an agency oversees itself?"

Every organization has internal oversight. It is valuable to mission in enforcing common values, adherence to rules. If it wasn't meaningful, every organization in America wouldn't bother. Believe it or not, having lawyers, 0.3% of the country in position of authority over all the rest of the American people through external legal oversight and court mandates isn't what the Founders envisioned.

Beren - "Is it (internal, external, independent) a sufficient check on the potential for abuses?"

If you think "abuses" are so pervasive that they permeate American society and we need a super class of elite-schooled, independent, annoited lawyers ruling over all of us, no. But the country was predicated on the idea that the people rule, the people are mostly right, and they can toss out rulers in the Exec and Congress they disagree with.

Beren - "When I wrote that there needed to be a public debate about this, not a secret executive decision, you replied: "What part of 'Classified Top Secret - Compartmentalized Safeguarded Intelligence' don't you understand??"
This is facile. You yourself would probably acknowledge that there are, at least in theory, some things that a government could do that would so deeply affect the freedom or rights of all citizens, that all citizens should have a right to know about them and debate them."

No I don't. All information cannot simultaneously be shared with the public and the enemy. There is no "right of everyone in the public and the enemy camp to know". That is is media invention. There is an acknowledged right of the public to know adequately to allow democracy to function, but he of the Lefty's Favorite Platitude, Ben Franklin, helped form the Committee on Secret Correspondence - which held all secret data to it's five members of Congressional leadership because sharing it with all of Congress would leak vital war secrets to the enemy and jeopardize the public safety.

Beren - "And if the government were to classify those things under the designation you mention, that wouldn't change the fact that they were essential matters that the citizenry of the republic as a whole had a right to know and decide about."

There is no inherent public "right to know" everything the government or their neighbor does that "might infringe on some ideologues sense of civil liberties". What the people crafted through law was that an elected Congress and Executive would classify matters vital to national security that they be kept secret - and no unlected reporter or leaker with an axe to grind or a pro-Israel or pro-Communist or pro-Islamist or pro-Libertarian Party agenda has the right to usurp democratic process. The 1st Amendment is not absolute protection. There was no "right" for the public to know of the secrets of the Manhattan Project nor the Soviet Union - the Rosenbergs roasted for their perfidity on this...Nor a right of a lawyer-Colonel obsessed with the civil liberties of draftees being endangered by what he alone deemed an ill-advised D-Day invasion to leak that in order to "stop the slaughter." Nor to a Soviet-loving reporter who didn't care about American civil liberties but wanted the Red Army to take all of Europe and not have the Allies land - transmit such D-Day intel to the public and hence instantly to the Nazis. General Eisenhower was quite clear what he would do in his cautions and commands --warning any conscience-striken lawyer officer (and there were several) and reporter who leaked secrets - A one hour Military Commission, then the officer(s) involved shot, the reporter hanged as a civilian traitor not entitled to firing squad.

Beren - "I'm claiming that this warrantless spying is one of those things. If you think it's not one of those things, fine, but explain why."

We have 28 areas of warrantless seaches allowed for the health and safety of the general public. You should be arguing instead why those areas are a greater threat than enemy with WMD, or why warrantless searches must be ended in most of those other areas - things like Customs, serching military quarters to maintain good order and discipline, inspecting nursing homes and nuclear power plants for unsafe practices, violations. Why a child molester on probation has a right to the 4th and no searches of his Chat rooms can not be done w/o warrant. Explain why suspected Islamic unlawful combatants who declared war on us and seek WMD must be excepted from search, but why it is OK for cops to search a criminal or civil violation suspect being arrested without probable cause, any reason to believe they have a weapon on their person??? Which of the 28 areas of exception to the 4th do you wish to do away with, Beren? If it is wrong to search suspected Islamoid enemy without a warrant, surely it is wrong to allow Fire Marshalls or CDC to search buildings or hospitals for fire code violations or diseases threatening public safety without a Supreme and Almighty Lawyer's say-so...

Posted by: Chis Ford | January 2, 2006 02:26 PM

I feel the argument comes down to respect for the Constitution.
People the likes of Chris Ford have no respect for the Constitution. They are constantly arguing for why we need to ignore the Constitution, or why we should not let the Constitution get in the way of waging war. For once, it'd be nice to see them pay respect to the Constitution and defend it instead of always trying to find ways to weaken it.
What kind of a person looks for any reason to set aside the Constitution and the rights it protects? Obviously, George Bush is such a person. McCarthyites like Chris Ford are such people. The same people who want their fellow US citizens spied on are the same people that have no qualms about torture. It's hard to tell if they are amoral or just hate people. I would put forth that those who hate leftist liberals so much actually hate people in general, but focus the majority of that hate on those who oppose them politically. It's sad how many political diatribes here consist of thinly-veiled hatred.
The only right side to be on in this argument is the Constitution's. Not only is it what we should all uphold as American citizens, it's the friggin' law of the land. If Bush's domestic spying program is illegal and unconstitutional, he WILL be held accountable by the legislative and judicial branches. All those who have been begging for him to be impeached finally have a glimmer of hope.

Posted by: ErrinF | January 2, 2006 02:31 PM

Wow. I just posted only to discover ANOTHER ranting McCarthyite post from Chris Ford.
His response to Beren is more of the same. He looks for any excuse to de-legitimize and dis-empower the Constitution. He obsesses more about fighting 'the enemy' than about protecting our constitutional rights. He finds lawyers and the rule of law to be reprehensible. He feels the ends justify the means no matter what. He spews forth hatred disguised as a political position. In other words, his usual spiel.
All Chris Ford argues for is martial law. He puts forth no morality whatsoever, no decency or human compassion. The only law he seems to respect is the law of the jungle. His is a world of torture, illegal wiretaps, McCarthyite witch hunts, and
might makes right. He should run for political office if only to see how little his dark view of the world is supported by the American people. The one saving grace of this right wing wacko is that he is highly counterproductive to his own way out and wrong political viewpoints. By all means, Chris, keep up the bad work. : )

Posted by: ErrinF | January 2, 2006 02:56 PM

Errin (Who always protests that he/she isn't a complete Lefty then writes and opines exactly like an America-hater) sez-
"I would put forth that those who hate leftist liberals so much actually hate people in general.

That is just you Errin, following the Marxist/Marcusian tactic of "always speaking to motive".

"McCarthyites like Chris Ford are such people."

Meaning those people who rounded up the Soviet agents you loved so much, Errin? 50 years later, the biggest problem the Left has is that the people they defended so ardently were in fact guilty.

" For once, it'd be nice to see them pay respect to the Constitution and defend it instead of always trying to find ways to weaken it."

For once, it would be a pleasant refresher to see a Lefty that actually has knowledge of the Constitution past the 7 Amendments the ACLU loves and worships while ignoring the rest of it. "States have rights? No way!!!" Read article IV after reading Article II, Errin, and you might also benefit from re-reading Amendments 2, 9, and 10 - which the ACLU hates.. As for defending it, one reason Lincoln is rated as the greatest President is how he threaded the needle between preserving the Constitution as a whole while preserving the best individual liberties he possibly could. All while not getting so anal about any individual liberty being so absolute it could destroy other essential goals and obligations the Constitution in toto imposed on the 3 Branches and the States.

"I feel the argument comes down to respect for the Constitution."

I feel it too, Errin! So did Lincoln! That is why he locked up seditious quasi-traitors like the Copperhead leaders, pro-enemy newspaper editors, executed foreign agents, and suspended habeas corpus in much of the country. He was guided by the Preamble, which you don't understand, and guided by the thoughts of the Founders that without adequate national security, expression and enjoyment of natural liberties is precluded. He understood the balancing of liberties with security in the context of the long debate started by the Greeks, fully expressed by Hobbes, Locke, Rousseau, and synthesized by the Founders and challenged by the flaws in both the Constitution and our polity the Civil War erupted from. Historians - except the Lefties and Extreme Libertarians - believe Lincoln got it right, and was a wise steward even as he frog-marched newspaper editors and COpperheads (Peace Democrats) off to jail, and launched mass involuntary conscription that put the sacred precious liberties of some 2 million Drafted Union soldiers permanently (they died, Lincoln lied!!) or temporarily on hold. Even with the burning of Atlanta, military commissions and nooses for civilians taking potshots at troops and all sorts of other bad, bad things that come in war...

Posted by: Chris Ford | January 2, 2006 02:59 PM

"Do we really want to subject our commerce to the same (often pointless) inconveniences we face at the airport? Would such measures really be less intrusive on our liberties than warrantless electronic surveillance? "

JZ you contradict yourself. Look at this arguement carried out to its conclusion - Oh no, don't worry about those evil men who want to kill us by smuggling in the uranium for dirty bombs (even though we already know its been done twice) - that worry would get in the way of our cronies in business too much, and create pointless inconvenience. Really America, that would be going off the deep end. We can make a thoughtful, measured response here and decide its not worth making a police state out of our ports and risk slowing down the economy. There's no need to panic like that.... But America its time to panic because evil men are trying to kill us and you need to give me unchecked power to spy on you and I'll make you safe. Those treasonist who think there's room for reasoned logical debate here are painting a big target on our back. Going off the deep end isn't nearly far enough where my duty of protect American lives are at stake. I have to have the power to protect you at any cost...

This doesn't pass the smell test. This administration can't have it both ways. Either there's no need to panic, or there is need to panic.

And I didn't mean to to oversimplify the border issue. There's lots more there. There's Asa Hutchinson telling us we wouldn't meet 2004 and 2005 goals for border security because we couldn't afford the technology. We can muster lots of outrage about Oil for Food or the War on Christmas, but there seems to be precious little outrage about the billions that Halliburton can't account for. Money that would have more than paid for that upgraded hardware and software that Asa said we needed.

I don't accept selective fear. I dont' accept this adminstration telling us we have to be panicked about the things they tell us to be panicked about, but just to blow off the rest of our vulnerabilities. Its all part of the same package. Either we make a reasoned debate, in which we make a thoughtful decision about what kind of a state we wish to live in, or we panic. Inciting selective panic is not acceptable.

Should we be panicking enought to toss aside our civil rights or not? Its not an a la carte menu choice, if you choose panic then you have to accept the rest of the package, intrusiveness and expense across each and every vulnerability.

Posted by: | January 2, 2006 03:03 PM

"I feel the argument comes down to respect for the Constitution."
I feel it too, Errin! So did Lincoln! That is why he locked up seditious quasi-traitors like the Copperhead leaders, pro-enemy newspaper editors, executed foreign agents, and suspended habeas corpus in much of the country.
Posted by: Chris Ford | Jan 2, 2006 2:59:00 PM

Chris Ford, you couldn't be more wrong. When Lincoln suspended habeas corpus, he did so according to the Constitution, not in defiance of the Constitution. In case you didn't know: Article 1, section 9 of the Constitution, restricting powers of Congress, forbids the suspension of habeas corpus except, "when in Cases of Rebellion or Invasion the public safety may require it.". That is what Lincoln used to suspend habeas corpus... AN ARTICLE OF THE U.S. CONSTITUTION!! And here you are arguing that Lincoln set aside the Constitution. Lincoln never did any such a thing. He respected the Constitution immensely, and did all he could to preserve the Union so that the Constitution would be preserved as well. THAT is why historians place him so highly.
So there you go, Chris, you pathetic moron. One wonders where you get these 'facts' of yours from. If you've misrepresented Lincoln so badly, it's logical that you misrepresent every 'fact' you put forth as equally bad. Then again, maybe you don't deliberately misrepresent the facts; You're probably too delusional to properly construe them.
As for your comments on me being a Lefty Mancusian Marxist ACLU America-hater, they couldn't be more off the mark. I don't take them personally, however, as that's what you label ANYBODY who opposes your views. After all, how can you have your witch hunts without witches? You see witches where there aren't any.
Face reality, Chris; Facts mean nothing to you. Emotion is the basis for the majority of your arguments here, and that emotion is hate. Accuse me of being a witch, a commie symp, a traitor, or whatever you like. It's all the same thing: empty accusations from an overly emotional McCarthyite. Every post you write makes your true character clearer and clearer...

Posted by: ErrinF | January 2, 2006 03:27 PM

Chris Ford, you write in response to my question, which was not rhetorical, but an honest attempt to find out the specifics of your position. My question was what limits, if any, you thought there should be on the executive right now. In response, you say the following:

"Executive power is enumerated in the Constitution and in 220 years of implementation of measures found acceptable by the polity, and unchallenged by judicial review. There is more to the Constitution than the 7 Amendments to it the ACLU thinks are absolute. Read it sometime. You will be refreshed in co-equal branches and separation of powers, meaning unlike the Israelis, the Executive here does not sit below the SCOTUS. And Congress may pass no law usurping Ex[e]cutive Powers without a Constitutional Amendment."

This doesn't answer the question, as far as I can tell. You don't seem to think that there are any limits at all on the executive's powers to detain or spy. If that were really true, the only difference between the US and a police state would be the whim of our own leaders. Suppose, just as a hypothesis, that tomorrow, Bush declared that all people who wear purple socks are a threat to national security, and he was exercising his executive authority to declare them enemy combatants and lock them up forever, and then he had them all picked up and incarcerated. Is it really your position that if something as egregious as that happened it still would not be a violation of the law or the constitution?? Is it really your position that if the president wiretapped every conversation in this country, that would still not be a violation of the law or the constitution?? If so, your position is, in effect, that in wartime the president becomes a king. If not, then please (for the second time) explain what limits you think there actually are on the executive's power. What is he not allowed to do?

As for your suggestion that I read the Constitution, that was a bit of a cheap shot. I have read it many times. It is a great document. I want it upheld. That is why I oppose this domestic spying: it's a violation of that document and of the laws enacted under it.

In response to my question about the limits of executive power, you simply stated some arguments to prove that executive power exists. No one is challenging that. But the question is whether or not it is unbounded. You don't advance any arguments at all to show that it is without limit, yet you also neglect to answer the question of what the limits are.

Thank you for your post. I'll respond to the rest of it when I can.

Posted by: Beren | January 2, 2006 03:33 PM

ATTN: Chris Ford
SUBJECT: Post Length

Treatise length posts here will be overlooked and misunderstood. If you want to make points, do so piecemeal. Otherwise folks will bypass 10,000+ characters and go straight to posts that can be read and responded too in 10 minutes!

Sidebar: This type of exchange is exactly why we have such close elections today, because it's but partisans who even want to vote...

===========================================
Errin (Who always protests that he/she isn't a complete Lefty then writes and opines exactly like an America-hater) sez-
"I would put forth that those who hate leftist liberals so much actually hate people in general.

That is just you Errin, following the Marxist/Marcusian tactic of "always speaking to motive".

"McCarthyites like Chris Ford are such people."
===========================================

What does that have to do with the subject at hand? It just shows both of you partisans are political hacks, more interested in protecting your parties, instead of the USA itself. Self-serving political mudslingers who rather gripe about each other's party's problems -- than fixing the problems of the two parties in the first place.

Can't wait for the day the GOP and the DP go the way of the Dodo. Then maybe CITIZENS can govern themselves, not by PACs and lobbyists.

SandyK

Posted by: SandyK | January 2, 2006 03:48 PM

Chris Ford,

In response to my question about what had really changed from the terrorists' perspective, once the NYTimes ran this story, you wrote the following:

"No, that enemy powers knows we might be spying on them to assess the threat they pose to citizen's lives and liberties does not mean they know what are still safe communications conduits, exactly what we are looking at. That is why the sources and methods are safeguarded as the nation's highest level military secrets, secrets some people will pay enormously for disclosing to the enemy."

Did I miss something? (In which case I'll be glad to be enlightened.) From what I knew, the substance of the NYTimes discolsure was that the administration was doing, without FISA warrants, what it already had the authority to do with FISA warrants. Since terrorists couldn't know whether they were, in fact, being watched by FISA warrants, they would naturally assume that they were, and would take exactly the same precautions that they do now. Did the NYTimes reveal new _methods_ for eavesdroppping on terrorists?

Posted by: Beren | January 2, 2006 03:57 PM

Beren wrote:
===========================================
"From my point of view, even giving the administration an entire week, or even a month, of free spying on someone before it has to go and explain itself to a FISA court, is still vastly better than never having to face external review at all."
===========================================

Ben Franklin had said it better...

"They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety."

"Freedom is not a gift bestowed upon us by other men, but a right that belongs to us by the laws of God and nature."

"This will be the best security for maintaining our liberties. A nation of well-informed men who have been taught to know and prize the rights which God has given them cannot be enslaved. It is in the religion of ignorance that tyranny begins."

"History affords us many instances of the ruin of states...the ordaining of laws in favor of one part of the nation to the prejudice and oppression of another, is certainly the most erroneous and mistaken policy...An equal dispensation of protection, rights, privileges, and advantages, is what every part is entitled to, and ought to enjoy..."

>>>"In free governments, the rulers are the servants and the people their superiors and sovereigns."<<<

SandyK
A Moderate Traditional Conservative
[One that never forgot the reasoning why our country was founded, and why liberty should never be quartered just due to *threat* of terror. There's many terrors in the world, and it's not only some terrorist thug with a bomb or WMD -- it can come from within, like a cancer that eats out our very existence.]

Posted by: SandyK | January 2, 2006 04:04 PM

SandyK,

Indeed I agree with what you write and what you quote. My point was only that if it's really true that there's something wrong with the FISA statute, let's hear what the problem is. We could then discuss ways of fixing it that wouldn't be a threat to civil liberties. But to circumvent FISA altogether sets us on a quick route to tyranny. No matter what process is set up to monitor actual terrorists, there absolutely has to be a serious meaninigful external review, to keep abuses from happening, by discovering and punishing them when they do.

I'm constantly thankful that your type of conservative is still around. Thanks for posting.

Posted by: Beren | January 2, 2006 04:12 PM

Beren - "I think that the NYTimes had no choice but to publish the story."

I agree, given the NYTimes anti-Bush and anti-American agenda, engangering intelligence operations, even American lives, is small potatoes for that private company. At least it isn't a complete disinformation campaign like the one they did on behalf of the Soviets in minimizing the Red Terror or the Ukraine famines.

Beren - "It is precisely situations like this that I think our founders were thinking of when they guaranteed the freedom of the press. They recognized that without information about what our government is doing, our ability to vote and be represented is almost meaningless."

They wanted freedom of the press so that the public would have information, not violate US law with impunity. As they admit now, no reporter is above the law. And they can claim that "the public's right to know" trumps all law, like laws protecting private medical records of celebrities, Dale Ernhard's autopsy photos, classified military information. That puts them in conflict with all or some of the 3 branches of Gov't, which has through FCC regulations, probition of foreign ownership of press, endorsing Lincoln's lockups of editors, demonstrated the 1st Amendment is not a blank check to violate other American's rights, be it privacy or security measures the public has passed to protect the citizens from foreign enemies.

Beren - " This is something that we simply had to know."

Who decides that, Beren? Press owners Microsoft, GE, Yale Law School Press? The Egyptian Gov't which has accredited reporters here? Pravda in the past? The Sulzberger family? A Saudi Al Qaeda sympathizer publishing a blog and calling himself the press whose Al Qaeda operatives are euphemistically called "reporters"? Or, should what the public needs to know and what must be safeguarded for their security be decided on by their elected representatives vs. a private family with enemy sympathies?

Beren - "I don't actually think it's likely that it compromised our national security, but even if it did, so be it."

Mighty white of you to issue your blessings of "so be it" on a matter where Judy Miller, in a far less important matter of national security, found the press was not above the law. There will be Sulzbergers facing Grand juries, and eventually convicted leakers sitting in jail next to their brothers in arms Jose Padilla, Aldrich Ames, and Robert Hanssen over this one - even on death row if it is concluded that violations of the Espionage Act in wartime cost American lives (meaning a big Islamoid attack happens soon, many lives are lost, and the political will is there to change the leakers to the NYTimes under capital crimes statutes covering wartime release of critical state secrets)

kchses - "Even Preident Lincoln asked Congress to approve his suspension of Habeas Corpus."

Not really. Besides the whole of the Congress that seceeded not voting, he blocked the seating of the Maryland delegation due to enemy-lovers in their midst, and warned several subversive Copperheads in the North that he would lock them up if they tried to block prosecution of actions needed to save the Union ( of which the habeas vote was one of many)

kchses - "Speaking for myself I live in NY City and would gladly risk my life (I also enlisted when I was 18) to preserve our freedom from government survielence."

Funny saying that when you live in the #1 target of the Islamoids due to it's many American symbols, media influence, and high number of Jews the Islamoids wish to kill over any other sort of infidel. That you wish to block surveillance of the enemy while wishing to defend against them while so blinded. I suppose you would be good as an enlistee then cleaning up the bodies/rubble at a certain risk to yourself after another enemy attack - but saying 9/11 requires further freedom of government surveillance seems to indicate you are only willing to be reactive to the enemy Islamoid threat, not proactive.

Errin further spews: "He should run for political office if only to see how little his dark view of the world is supported by the American people. The one saving grace of this right wing wacko is that he is highly counterproductive to his own way out and wrong political viewpoints. By all means, Chris, keep up the bad work."

Funny, I am in public elected office and a local controversy about the Patriot Act really helped. The opposing slate, mostly bedwetting liberal Democrats, proposed our town be a "Patriot Act-Free Zone' and one silly ninny actually said she would fire any librarian that disclosed library records on a suspected Islamoid and further yammered about Islam as the religion of peace and yadayada about Christians are as much terrorists as Islamists are. We brought in some 9/11 familes someone knew and absolutely crushed them on that, plus a few local issues, since we do have three big terrorist targets nearby. And we are in a Blue State. The danger is not erring too much in protecting American lives to favor enemy rights as certain democratic activists say, but in erring too little, even in blue states and blue cities. It is the Democrats that are way out on a limb giving the enemy advantages out of concern for enemy and other's civil liberties above all...the people aren't with them. One of the losers in the election I was in wrote the usual Lefty hysterical rant about the voters being ignorant and not up to voting right, brought up her pet anti- Partiot Act cause yet again and sealed her political doom as a local Dem Party leader said to me - "she's damaged goods now". The "enemy civil liberties" over "american people's security" argument has been used in 2 major elections so far to ill effect by the Dems. They are the ones being driven out on a limb by their Lefty activist base, and the damage will continue despite a mildly to severely incompetent President being in office until they return to being a centrist party that can be trusted on national security needs the voters see are absolutely real and necessary. I liked Bill Clinton, and would have voted for him over Dubya in a heartbeat. Same with Gephardt and Lieberman....but right now the Dems are in thrall to Hard Left donors and the activists that are in thrall to the notion that it's still the 60s.

Posted by: Chris Ford | January 2, 2006 04:17 PM


Despite the lengthy arguments of Chris Ford and others, this whole issue isn't that complicated. Congress made a law, in surprisingly plain English. President Bush decided not to comply with that law. It is his position that this is within his powers.

Constitutionally both the Congress and the Supreme Court have the responsibility to determine whether in fact the President's interpretation of his powers (and theirs) is legitimate. They have a wide range of remedies at hand if they determine it is not. They may also determine that the President acted legitimatly. The point is they have a say, if they choose to do so.

Politically, the question is even simpler: Is this President above the law? None of his predecessors were. If he is not, then the constitution gives the electorate a remedy of its own.

Posted by: Bullsmith | January 2, 2006 04:31 PM


That was unclear. The electorate has no further say on this President, but they can guarantee at least some congressional oversight of the President by voting in a Democratic majority in either the House or Senate.

Posted by: Bullsmith | January 2, 2006 04:36 PM

Can't wait for the day the GOP and the DP go the way of the Dodo. Then maybe CITIZENS can govern themselves, not by PACs and lobbyists.
SandyK
Posted by: SandyK | Jan 2, 2006 3:48:28 PM | Permalink

I couldn't agree more, Sandy. We need a viable third party or two new major parties before any real progress and reform happens in this country. Sad thing is, the American citizen historically does not support progress and reform until everything has gone to hell in a handbasket.
My labeling of Chris Ford as a McCarthyite has nothing to do with partisanship on my part. I rarely vote for either of the major parties, and in fact did activism for both parties and Nader last year. My arguments in this debate have been along the lines of upholding the Constitution versus not upholding the Constitution. It's had nothing to do with Republican vs. Democrat, except for the fact that I mentioned right winger Chris Ford. Truth is, I'd be perfectly happy if conservatism thrived, by which I mean your type of conservatism, not the FOXnews, Rush Limbaugh type conservatism of the likes of Chris Ford. I never appreciated the 'Reagan revolution' much because of it's religious aspect, but now I kind of long for the paleoconservatives of yesteryear in contrast to today's legion of hysterical talk radio lemming conservatives. I even give the neoconservatives points for being progressive and aggressive about spreading democracy, only I wish they'd disassociate from the Limbaugh type of conservatism.
I also thoroughly agree with Sandy that partisan discussions have nothing to do with the subject at hand. I'm actually trying to put an end to every Debate subject turning into a left vs right argument. Unfortunately, I don't think I'll get very far, as my attempts to quell partisan extremism just instigate more partisan extremism. Oh well. At least it gets me lumped in with my opposition by those too simplistic to understand my point.

Posted by: ErrinF | January 2, 2006 04:41 PM

Chris Ford writes:

=========================================
Unless you wish to safeguard terrorists, spies, and traitors - it is rather important to find out who they are. You seem to think the 4th Amendment protects them from scrutinity. Counterterrorism starts with finding WHO they are, knowledge without which we are unable obviously to create and of the warrants you demand. The Rosenberg traitors were ID'd by the NSA, THEN warrants were issued to assemble a criminal case that "safeguarded" their civil liberties all the way to the electric chair.
========================================

I'm not an expert on the Rosenberg case, but I'd note a couple of things, subject to your correction. If by being "ID'd by NSA" (actually not strictly NSA but a predecessor, right, since they were founded in '52 after the Rosenbergs' arrest, weren't they?), you mean the Venona cables, those are different from domestic spying on US citizens. Those were decryptions of Soviet cables sent from embassy to embassy and so on, weren't they?

I know that we need to find out who terrorists are. But in response to your comment, actually, yes, I think that the fourth amendment even protects terrorists if they are US citizens, precisely because we don't know who they are, and so if the 4th amendment is to protect citizens at all, it must also protect citizens who are terrorists, until we know that they're terrorists.

It's a verbal trick to insinuate that I might "want to protect terrorists, spies, and traitors". I want those people to be caught, of course. But I also want to live in a country subject to the rule of law, and the price we pay for that is that we can't always catch everyone.

Take a parallel: you probably believe, as I do, and as our founders did, in the presumption of innocence in courts of law. One inevitable effect of the preseumption of innocence, is that sometimes a murderer will go free for lack of evidence. But just because you support the presumption of innocence (since it's the best of a lot of imperfect options), that doesn't mean that you 'want murderers to go free'. Similarly, I don't want to protect "terrorists, spies and traitors". I want to capture them. But I do want to protect US citizens. In practice, you have to make a decision about which you're willing to sacrifice in a situation where you can't have both.

Posted by: Beren | January 2, 2006 04:43 PM

Chris Ford is a publicly elected official?! Pardon me if I don't buy that... care to direct me to your website you offer to your constituency, Chris? Then again, maybe you're Zell Miller... : )

Posted by: ErrinF | January 2, 2006 04:44 PM

Chris Ford,

Originally, I suggested that if you wanted to prove historical precedent for this sort of executive power you would need to find cases that satisfied each of six criteria. They were 'that a) were directed against US citizens, not foreigners, b) were not subject to meaningful review, c) were not authorized by any law, d) violated the specific prohibition of law enacted by Congress, e) did not occur during a state of war declared by Congress, and f) were not later determined to have been, in fact, unconstitutional.'

In your reply, you raised some interesting points that make me think I need to change my list. In full, you wrote:

========================================
a. Refer to the Civil War and Shays Rebellion for starters.
b. Ibid.
c. Congress shall make no law usurping the Executive's Article II Powers w/o Constitutional Amendment. Congress is not sovereign over the Executive. The People are sovereign over both. That is why we have elections and political power shifts, based on the will of the people as the final check. All Presidents, even the weakest one, Carter, claim neither the War Powers Act nor FISA intrude on Article II Executive Power.
d. Congress is not sovereign over the Executive nor SCOTUS.
e. You are back to your magic word again. Congress votes since Korea to authorize not war but "police actions" in accordance with language demanded by UN Charter signatories. In the Truman steel mill case, the SCOTUS said that Korea was indeed "war de jure" - when you invade, kill, conquer and see caskets and limbless soldiers come back, it's silly to claim that "it isn't REAL WAR because the magic word wasn't uttered by Congress". Even sillier to take up the Marxist case from Vietnam that all American actions are illegal, no Powers exist to wage it, the UN Charter should be defied, and the President impeached for doing what Congress voted on, but no member of Congress impeached for voting so.
f. Nothing Washington, Jefferson, Madison, Lincoln, Grant, Wilson, FDR, Truman, JFK, LBJ, Nixon, Carter, Reagan, Bush, Clinton, Bush II did in war was deemed to have "trammelled precious enemy civil liberties" the way the ACLU or other advocates of the enemy claim. A case might be made for Ex Parte Milligan, but that one just said the Confederates formally surrendered, war's over, so any Rebs in insurrection after that have to be tried and hanged by a civilian court, not a military one.
===========================================

In response to a., I don't know what particular actions during Shays Rebellion you're referring to, but Shays Rebellion preceded the Bill of Rights, and isn't therefore proof of an executive prerogative to violate the Fourth Amendment. I'm also not sure what specifics you're referring to from the Civil War, but during the Civil War, Habeas Corpus was suspended (according to a Constitutional provision). Thus that example fails to be relevant to our current situation; it could be argued that those were legitimate actions once habeas corpus has been repealed, but not when it is in effect as it is now. Actually, I agree with what Scalia said in (was it Hamdi? not sure) that if you want to detain US citizens on US soil without charge or trial because of grave public danger, there's only one constitutional thing to do: suspend the write of habeas corpus. But I don't think the president would dare do that right now, do you? People would be up in arms if he suggested it. So instead he just acts as though it had already been suspended.

In response to c., just because presidents claim that they have a certain constitutional power, that doesn't make it so. Of course Congress is not supposed to intrude upon executive power. But the question is, "What exactly _are_ the limits of that executive power?" And if it comes to a question of whether the executive does in fact have the right, under the constitution, to do something, the other branches _are_ supposed to have a say in that debate. The SC is the interpreter of the Constitution, not the president.

In response to d., the executive is not supposed to violate the laws of the land or the constitution. If it could, there'd be no point in having them.

In response to e. I'm not a good enough constitutional scholar to know what is required for a state of war to exist, so I'll drop this criterion. I can't quite make out what you're arguing against towards the end of this bit, but I can assure you that I'm not taking any Marxist positions on this issue.

In response to f. the point isn't whether executive actions in the past have been found unconstitutional or not, generally speaking, but whether you can find me a case of the executive acting in such a way as to fulfill all the other criteria, and still not getting found to have violated the constitution.

Thanks for your post.

Posted by: Beren | January 2, 2006 05:08 PM

Beren - "If not, then please (for the second time) explain what limits you think there actually are on the executive's power. What is he not allowed to do?"

We have both used the example of Lincoln, where Executive Powers clearly rose to their apogee in American history, based on level of threat. The limits are imposed by the trust we place in the executive in wartime (no small matter, as the trust is truly life or death for US soldier citizens and the general populace hoping the President and those under the Executive are right in their judgement in prosecution of the war), limits by the Congress mainly in power of pursestrings, and in the voters to throw them out or re-elect as they judge Congress and the Exec's conduct. As Reinquist writes, the courts, unleclected, wisely refrain from meddling in war conduct as much as possible "in times of war, law is silent".

So plenty of checks exist. Accountability to the people exists. FDR held all sorts of wartime secrets, yet no one argues the public was "blind" in voting. They threw Carter out as weak when he faced the Soviets on the Rise and America humbled by Islamoids. LBJ was not able to run again because the will of the people opposed him.

"As for your suggestion that I read the Constitution, that was a bit of a cheap shot."

Well, it was said only in context that you said the 4th Amendment was absolute, the President must obey all laws passed by Congress even those usurping Article II powers, and then that any private company or family with access to a publishing medium (press or nowadays Internet blog) is exempt from all espionage and national security laws if they personally deem it "their conscience, their best judgement" to violate those laws and wrap the 1st Amendment around themselves.

I pointed out that that suggests a big misreading of the Constitution, no cheap shot, because it focuses on the liberties the ACLU says are absolute to the detriment of other goals and missions the Constitution clearly enumerates. Back to Lincoln - locking up newspaper editors, involuntarily deporting enemy sympathizers, suspending habeas corpus, having troops occupy and search homes of enemy American citizens (no 3rd, no 4th Amendment rights honored)--all now thought completely kosher and OK. The wartime executive powers are thought by Constitutional scholars to be subjective, waxing to Lincolnesque apogee, waning to negligable levels while Reagan warred on Grenada. Clearly the Islamoid conflict is closer to Lincolns level, but still less than FDRs, so Bush's powers are less than FDR, but greater than Reagans..

Beren - " Did the NYTimes reveal new _methods_ for eavesdroppping on terrorists?"

Apparantly so. The NSA says significant laws were broken by at least one individual with top secret access. Justice Dept is investigating on grounds that the very disclosure to the enemy and to the public reveals we in trying to protect American citizens from more Islamoid mass death now have sources and methods to filter out critical targets from 650 million signals intercepted daily and focus on a small number of enemy Islamoids within the USA. That the Islamoids continued to communicate after 9/11 and we snagged piles of the unlawful combatant towelheads here and in Europe indicated that until the NYTimes disclosure, that Islamoids thought their coded communications to agents in the West were safely buried in 650 million items of chatter. Now they know better. They have reasonably inferred that the infidel has spying methods they didn't know about before Risen and Co disclosed them(as will be argued in court for major jail time or death penalty for the leaker(s)

As for absolute freedom of the press, as much as the wealthy individual private owners of presses or new technology mass media tell you they have such unquestionable rights to pick and chose what privacy or national security laws they wish to violate, they don't. Not General Electric, not Microsoft, not an Australian billionaire, not a rich family of Jewish investors with strong communist/Lefty sympathies.

The courts have ruled that forking over a few million for a press does not give the Chinese the right to set up such an intelligence gathering organization in the US, nor mass tabloids the "right" to violate privacy law and run NASCAR autopsy photos for huge profits under rubric of "our 1st Amendment rights trump everything". And despite the overweening arrogance of the investors who bought a press saying they are above law and accountability to the public, the day is fast approaching where a press owner (be it GE, the Sulzbergers, or an owner of a 19.95 a month Blog) will be hauled into court for causing deaths. The false "Koran flushing" story caused a dozen deaths, but they were just Pakistanis, so the media wasn't hauled into court. One day we will face dead bodies laid to the door of the press or an Internet blogger wrapping herself in the protection of the First for protection of violation of espionage statutes or party to murder charges and another long-overdue 1st Amendment challenge will occur.

Posted by: Chris Ford | January 2, 2006 05:28 PM

===========================
Beren: "I know that we need to find out who terrorists are. But in response to your comment, actually, yes, I think that the fourth amendment even protects terrorists if they are US citizens, precisely because we don't know who they are, and so if the 4th amendment is to protect citizens at all, it must also protect citizens who are terrorists, until we know that they're terrorists."
==========================
Sounds like a catch-22 to me.

Posted by: johnnyg in NE DC | January 2, 2006 05:29 PM

On the Authorization for the Use of Force (AUF), Chris Ford writes:

===========================================
"Congress authorized the CIC to go after enemy everywhere in the world, inc. unlawful combatants in the Homeland. What Congress did was say this was not a case of insurrection or invasion that would trigger general emergency suspension of rights - so no martial law for the 9/11 attack like their would be if WMD is used here."
===========================================

No, Congress, specifically refused to include the words "in the United States and" and "appropriate force". Including those words would not have triggered martial law or a general suspension of rights. So what COngress was rejecting by refusing to include those words must have been something else.

Interestingly, the AUF actually only authorizes the use of force against nations, organizations, or people that "planned, authorized, committed or aided" the 9-11 attacks, or harbored or aided those people or organizations who did. Which, strictly speaking, ought to mean that if a bunch of people here in this country decide they want to become Islamic terrorists and blow something up, so long as they don't harbor or aid people or organizations that participated in 9-11, they are not covered as targets by the AUF. They would still, of course, be in violation of a lot of laws, could be arrested, tried, convicted, and so on. But they wouldn't strictly speaking, fall within the definition of the AUF.

Or am I wrong about this? Any constitutional scholars care to point out my mistakes?

Thanks for posting.

Posted by: Beren | January 2, 2006 05:32 PM

Government outrage over this "secret" thing being divulged by journalists is mere simple-minded stagecraft to occupy and divert the attention of uncritical people with false assumptions about their presumed protections.

Get over it; there is no such thing as privacy. Moreover, there are no transparent procedures in conducting governmental surveillance. The government apparatus to suveil is integrated and has multi-billion dollar budgets, paid for by citizens (also representing the majority of its targets). The enabling technologies are going to be used continuously, and intensified, with an inventive and hideous logic of its own, regardless of the Constitution.

Data and intelligence collection and assessment of ordinary persons will have a permanent and broad presence in our domestic society for the indefinite future during war or peace. These functions have practically unlimited funding and an insatiable curiousity to know "what are you doing in there?". The only personal countermeasure is to live an open life in an ethically circumspect manner, but even that will not keep one from being a victim or target.

On the origins of this basic violation of human dignity, put the blame where clearly it should be assigned. Laws obviously are meaningless (and lawmakers powerless to change that reality). Existing written laws are merely constituent ingredients to be reformulated in some alchemy by expedient and secret interpretations dispensed by corporate-style attorneys aspiring to a future post as a judge.

The true institutional failure here is the federal judiciary. Our legal processes have gradually capitulated to corporatism over individualism, and with that task now tightly wrapped up, seated and aspirant judges surely recognize their other master and guarantor of their lifetime privileges; so it is never seriously to be about the judiciary questioning or resisting any assertions of the executive regarding powers to surveil.

There's a word for societal rule when corporations and central government conjoin, and courts submit, and it's not democracy.

Posted by: On the plantation | January 2, 2006 05:33 PM

A typo in my previous post. It should read:

Congress, specifically refused to include the words "in the United States and" right before "appropriate force".

Must go now. I wish I had time to reply to more of your posting Chris Ford. I'll reply when I can.

Posted by: Beren | January 2, 2006 05:40 PM

Beren makes a good point...
All antagonism aside, where is Chris Ford's respect for the rule of law in this debate? Whether it be torture, spying, or you name it, time and time again he disregards any notion of the rule of law being valid in face of 'the enemy'. I could understand not respecting the rule of law if one was living in a dictatorship or similar corrupt regime, but why be so quick to disrespect the American rule of constitutional law? If the guy's a public official like he claims, then he probably swore on the Constitution to uphold his public duties... and yet here he is making every argument he can make to NOT respect the Constitution.
While we're on the subject, all the Bush apologists out there are once again defending the President no matter what the circumstances. When it comes to supporting George Bush or upholding the Constitution, they side with George Bush, even though it's pretty clear that Bush disregarded constitutional checks and balances in this domestic spying affair (unless you buy the thoroughly weak arguments put out by the White House). When Katrina happenned, they apologized for Bush and blamed everybody else. Now, they are trying to make the New York Times a scapegoat to once again save Bush from any accountability. Any real debate in America these days gets twisted and manipulated by these bad seeds.
Enough already. Once again, this President is playing with fire. Just look how 2005 turned out for him. Bush apologism and Rovian sophistry may be the standard of how the White House and the Republicans deal with this president's failings, but it only leads to more trouble and is wearing thin. The more you protect this president from accountability, the more you lead him into further situations where he lets power get the best of him. That so many blindly defend a POLITICIAN is disgraceful.
This is a nation of laws, not men. We need to put an end to extremists that turn a blind eye to a politician's wrongdoings because of partisanship. Our country will be much better off once we free ourselves from all this partisanship that only serves the powers-that-be (i.e. the government of the rich, by the rich, for the rich) and not the American citizen.

Posted by: ErrinF | January 2, 2006 05:47 PM

ErrinF, you appear to be an anti-rich bigot. The rich are citizens too. :)

Posted by: johnnyg in NE DC | January 2, 2006 05:56 PM

johnnyg, you appear to have run out of things to say. : )

Posted by: ErrinF | January 2, 2006 06:27 PM

Seriously, I'm here for debate, not petty snideness. johnnyg's just nursing old wounds from the bigoted statements he made in the past about Middle Eastern cultures.
At least his comment proved my point about partisanship and distraction needing to be removed from valid debate. Partisanship is used by the politicians to distract from accountability and to keep themselves in power. The politicians mainly answer to the rich, who are indeed citizens, but have undue influence over the politicians. It's called money, power, and human nature... and has nothing to do with bigotism, despite johnnyg's empty distraction of an accusation.

Posted by: ErrinF | January 2, 2006 06:35 PM

"That you wish to block surveillance of the enemy while wishing to defend against them while so blinded. "

Block surveillence. Well, this says it all.

Block surveillence. You have to admit, they're cunning. By framing the debate as " Either you're with us who can protect you or you're with the traitorous liberal terrorist lovers who want to block my ability to make you safe, tie my hands so Osama gets you", its quite possible to consolitate absolute power and fear monger at the same time. Must appreciate the art of the cunning no matter how dishonest it is.

But as Chris Ford, and Pat Buchannan, and the rest of the Bush gang know full well, the truthful debate is not about whether or not we should allow the executive branch to spy, but whether or not we should allow them to spy without oversight.

Shame on you Chris. If you have any shame.

I have to confess, as a Tom Clancy fan I always assumed the government was mining phone transmissions looking for threats. I was just naive enough to think that Congress had written laws on how it would be supervised, who would have access to the data, and what could be done with it. And until Tom Delay brought gerrymandering out of partisan politics and into a breathtakingly dangerous tool to secure absolute power, I wasn't so bothered by the spying as I believed the checks and balances in the Congressional statutes would assume the party writing the laws couldn't be sure who would next have the reigns of power to execute those laws.

So, Chris Ford, just in the small chance you missed it, now you can't say we never told you: we are not arguing that all surveillence should be blocked. Get it? We are arguing about whether or not the kind of surveillence that makes sense in today's world can be done solely by executive privelege with no oversight of exactly who is being listened to and what is being done with the data, or whether there should be checks and balances on the President's power to establish a police state simply because he thinks we live in a dangerous world.

The President acted illegally. If he wants to datamine let Congress write statutes to control it, and let a court issue warrants enabling the "chatter" to be followed up on with real wiretapping, including the 72 hour grace period. When you tell the court this is an Eagle Scout who "bombed" his SATS the courts will say no. When you tell the courts is a Middle Eastern male who travelled to Afghanistan or Iraq recently and attends a radical mosque they will say yes. And when you tell the courts is an ACLU member who is planning an impeachment rally or the competitior of the industrial mogul you have in your pocket we better pray the system will work and say no.

Posted by: patriot 1957 | January 2, 2006 06:58 PM

Hear, Hear, Errin. Let's get off of the partisan squabbling and back to the merits of things and some of the more meaty questions Emily has posted.

Where is the line between the 4th and security? There are cases of extreme necessity where the government's interest trumps that of the individual, but the circumstances must truly be extenuating. The coast guard example cited so often in this thread is part of the 4th jurisprudence that deals with "exigent circumstances" dealt with in Carroll v. United States. Under this exception, the government is permitted to conduct a search without a warrant on a mobile object under the idea that it may have moved by the time a warrant is procured. The ability of the government to obtain a warrant after the search has occurred, however, moots this issue as it pertains to the NSA. So this really isn't about "liberties vs. safety" but rather, executive branch vs. judicial. And people can discuss ad nauseum about the need for secrecy and need to know and all that, but quite frankly, anything that is being given to a career political operative (such as Karl Rove), I feel equally safe being entrusted to a career member of the judiciary (such as the one that judges the FISA warrants).

The question of effective oversight over secret government programs is a tricky one. However, the idea that oversight is a duty which one branch will perform upon itself is patently absurd. The proper approach is to discuss and debate programs, in their generalities, in the public forum and, if necessary, bring a test case for their Constitutionality before the Supreme Court. You can get into a public debate as to whether or not you as a society wish to go against the ABM treaty and install a missile shield without going into the classified, technical schematics of any missile shield design.

However, if the government programs are carried on in secret with no societal clearance, the persons who directed the activity must understand that they are no different than someone who steals a car from the government under the mistaken belief that all public property belongs to the public and therefore, it is not theft. If you gamble with the law and are wrong, you have broken it and should understand that you will be prosecuted. That should be sufficient deterrant to keep everyone above board.

Posted by: Matthew | January 2, 2006 07:16 PM

He he ErinnF, all kidding aside, this is a good debate going on here.

I do see this as another one of those serious issues, but I cannot find my position on it. I want both worlds, but agree that the president, whoever he or she is, should have a larger share of power in times of crisis. What would be crossing the line lies within an unbelievable large gray area. I think we as a country need to settle this to some greater extent.

Posted by: johnnyg in NE DC | January 2, 2006 07:47 PM

>

That's easy to answer. They were escaping record-keeping requirements.

Posted by: On the plantation | January 2, 2006 07:56 PM


JZ,
"What about Brig. General Janis Karpinski, who was found guilty of dereliction of duty? Or Lt. General Ricardo Sanchez, who was denied a fourth star?"

The "officers" I was thinking of were the Lieutenant in charge of this night shift in particular and the Captain to whom he reported. I've no quarrel with penalties applied to the enlisted personnel; I find it unconscionable that their immediate superiors were not held equally accountable for permitting these abuses to take place. I say that having served my time (a very long time ago) as an enlisted grunt in the 101st Airborne. This service may have something to do with my appreciation of Berlinbabe.

"It's too early to characterize this as a mistake."
No it is not too early to characterize this as a mistake. My characterization is not based on the ultimate outcome of this war. I do not accept as a matter of principle that the end justifies the means. I assert that it was a mistake because I did not and do not agree that we had an acceptable cause of action for invading the sovereign nation of Iraq at the time we did. Nor do I hold Bush alone accountable for it. Congress, including a substantial element of the Democratic minority, as well as a large majority of the nation at large, willingly joined him in this, to my dismay. This is not a constitutional or a legal issue. There is nothing in our constitution that precludes us from going to war for any reason we choose. In this particular case I found and still find the arguments for war based on self-defense to be specious at best and utterly inadequate. Those based on the threat of Iraqi based terror were plainly empty and silly. I found and still find the argument based on imposing democracy within the part of the world to be contrary to our long held principles. This is, in a word, imperialism; however well intentioned it might be, it is not something I believe we should ever sanction. It may well prove successful in its object; indeed at this point I earnestly hope it does. That will not, however, ever justify it in my view.

RFK,

Not to disagree with you but rather to supplement, I offer some specific relevant language from Justice Jackson's concurring opinion in the Truman seizure case.

On CIC Powers.........
The clause on which the Government next relies is that "The President shall be Commander in Chief of the Army and Navy of the United States . . . ." These cryptic words have given rise to some of the most persistent controversies in our constitutional history. Of course, they imply something more than an empty title. But just what authority goes with the name has plagued presidential advisers who would not waive or narrow it by nonassertion yet cannot say where it begins or ends. It undoubtedly puts the Nation's armed forces under presidential command. Hence, this loose appellation is sometimes advanced as support for any presidential action, internal or external, involving use of force, the [343 U.S. 579, 642] idea being that it vests power to do anything, anywhere, that can be done with an army or navy.
That seems to be the logic of an argument tendered at our bar - that the President having, on his own responsibility, sent American troops abroad derives from that act "affirmative power" to seize the means of producing a supply of steel for them. To quote, "Perhaps the most forceful illustration of the scope of Presidential power in this connection is the fact that American troops in Korea, whose safety and effectiveness are so directly involved here, were sent to the field by an exercise of the President's constitutional powers." Thus, it is said, he has invested himself with "war powers."
I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course, a state of war may in fact exist without a formal declaration. But no doctrine that the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation's armed forces to some foreign venture. 10 [343 U.S. 579, 643] I do not, however, find it necessary or appropriate to consider the legal status of the Korean enterprise to discountenance argument based on it.
Assuming that we are in a war de facto, whether it is or is not a war de jure, does that empower the Commander in Chief to seize industries he thinks necessary to supply our army? .............
There are indications that the Constitution did not contemplate that the title Commander in Chief of the [343 U.S. 579, 644] Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of "war powers," whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the "Government and Regulation of land and naval Forces," by which it may to some unknown extent impinge upon even command functions.
That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history. ............
We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch [343 U.S. 579, 646] is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.


In defense of the ACLU and the Bill of Rights.........
The third clause in which the Solicitor General finds seizure powers is that "he shall take Care that the Laws be faithfully executed . . . ." 15 That authority must be matched against words of the Fifth Amendment that "No person shall be . . . deprived of life, liberty or property, without due process of law . . . ." One gives a governmental authority that reaches so far as there is law, the other gives a private right that authority shall go no farther. These signify about all there is of the principle that ours is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.


On inherent, plenary, etc. powers...............
The Solicitor General lastly grounds support of the seizure upon nebulous, inherent powers never expressly granted but said to have accrued to the office from the customs and claims of preceding administrations. The plea is for a resulting power to deal with a crisis or an emergency according to the necessities of the case, the unarticulated assumption being that necessity knows no law.
Loose and irresponsible use of adjectives colors all nonlegal and much legal discussion of presidential powers. [343 U.S. 579, 647] "Inherent" powers, "implied" powers, "incidental" powers, "plenary" powers, "war" powers and "emergency" powers are used, often interchangeably and without fixed or ascertainable meanings.
The vagueness and generality of the clauses that set forth presidential powers afford a plausible basis for pressures within and without an administration for presidential action beyond that supported by those whose responsibility it is to defend his actions in court. The claim of inherent and unrestricted presidential powers has long been a persuasive dialectical weapon in political controversy. While it is not surprising that counsel should grasp support from such unadjudicated claims of power, a judge cannot accept self-serving press statements of the attorney for one of the interested parties as authority in answering a constitutional question, even if the advocate was himself. But prudence has counseled that actual reliance on such nebulous claims stop short of provoking a judicial test. 16 [343 U.S. 579, 648]
The Solicitor General, acknowledging that Congress has never authorized the seizure here, says practice of prior Presidents has authorized it. He seeks color of legality from claimed executive precedents, chief of which is President Roosevelt's seizure on June 9, 1941, of the California plant of the North American Aviation Company. Its superficial similarities with the present case, upon analysis, yield to distinctions so decisive that it [343 U.S. 579, 649] cannot be regarded as even a precedent, much less an authority for the present seizure. 17 The appeal, however, that we declare the existence of inherent powers ex necessitate to meet an emergency asks us to do what many think would be wise, although [343 U.S. 579, 650] it is something the forefathers omitted. They knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies. Aside from suspension of the privilege of the writ of habeas corpus in time of rebellion or invasion, when the public safety may require it, 18 they made no express provision for exercise of extraordinary authority because of a crisis. 19 I do not think we rightfully may so amend their work, and, if we could, I am not convinced it would be wise to do so, although many modern nations have forthrightly recognized that war and economic crises may upset the normal balance between liberty and authority. [343 U.S. 579, 651] Their experience with emergency powers may not be irrelevant to the argument here that we should say that the Executive, of his own volition, can invest himself with undefined emergency powers.
Germany, after the First World War, framed the Weimar Constitution, designed to secure her liberties in the Western tradition. However, the President of the Republic, without concurrence of the Reichstag, was empowered temporarily to suspend any or all individual rights if public safety and order were seriously disturbed or endangered. This proved a temptation to every government, whatever its shade of opinion, and in 13 years suspension of rights was invoked on more than 250 occasions. Finally, Hitler persuaded President Von Hindenberg to suspend all such rights, and they were never restored. 20
The French Republic provided for a very different kind of emergency government known as the "state of siege." It differed from the German emergency dictatorship, particularly in that emergency powers could not be assumed at will by the Executive but could only be granted as a parliamentary measure. And it did not, as in Germany, result in a suspension or abrogation of law but was a legal institution governed by special legal rules and terminable by parliamentary authority. 21
Great Britain also has fought both World Wars under a sort of temporary dictatorship created by legislation. 22 As Parliament is not bound by written constitutional limitations, it established a crisis government simply by [343 U.S. 579, 652] delegation to its Ministers of a larger measure than usual of its own unlimited power, which is exercised under its supervision by Ministers whom it may dismiss. This has been called the "high-water mark in the voluntary surrender of liberty," but, as Churchill put it, "Parliament stands custodian of these surrendered liberties, and its most sacred duty will be to restore them in their fullness when victory has crowned our exertions and our perseverance." 23 Thus, parliamentary control made emergency powers compatible with freedom.
This contemporary foreign experience may be inconclusive as to the wisdom of lodging emergency powers somewhere in a modern government. But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them. That is the safeguard that would be nullified by our adoption of the "inherent powers" formula. Nothing in my experience convinces me that such risks are warranted by any real necessity, although such powers would, of course, be an executive convenience.
In the practical working of our Government we already have evolved a technique within the framework of the Constitution by which normal executive powers may be considerably expanded to meet an emergency. Congress may and has granted extraordinary authorities which lie dormant in normal times but may be called into play by the Executive in war or upon proclamation of a national emergency. In 1939, upon congressional request, the Attorney General listed ninety-nine such separate statutory grants by Congress of emergency or wartime executive powers. 24 They were invoked from time to time as need appeared. Under this procedure we retain Government [343 U.S. 579, 653] by law - special, temporary law, perhaps, but law nonetheless. The public may know the extent and limitations of the powers than can be asserted, and persons affected may be informed from the statute of their rights and duties.
In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction. ..............

Chris Ford,
You are correct in your reply to Beren with respect to SCOTUS analysis of the "declaration of war" issue (see above text). However, this same SCOTUS in the same decision took a decidedly different view of the constitution than thee. (see above text)
Further, the concept of "co-equality" and "above" or "below" can be somewhat misleading. Broadly speaking, the Constitution grants legislative authority exclusively to the Congress, executive authority to the President, and the authority to interpret the constitution to SCOTUS. In its exercise of this authority, SCOTUS places itself neither above nor below nor equal to either the President or the legislature, it is simply performing its function under the Constitution.

Jaxas,
Spare me these broad aspersions cast against "Republicans" please. I'm one of them, nor am I alone. You know, the most serious and thoughtful real debate about the Iraq war was lead by Republicans.....General Scowcroft immediately comes to mind, followed by Senator Hagel and Senator Lugar. I might also add that Howard Dean most closely articulated my own beliefs and conclusions and I couldn't have disagreed with Senator Lieberman more. Please just leave the labels out of this, they are just not very useful and their predictive positive value is marginal at best.

Posted by: Cayambe | January 2, 2006 08:30 PM

By all means, let's remove all partisan references from the Debate. Too many of these Debate topics quickly turn into partisan blame games that have nothing to do with anything. I understand that George W Bush is a hero to a lot of partisans out there, so they see any attack on him as a partisan attack that they need to defend in a partisan manner, but the fact of the matter is that he is president and his actions will come under question no matter what party he belongs to. To assume people are posting their views here based on party association is ridiculous. We're here to argue the merits of a debate, not the merits of the debaters. If somebody's left wing, so be it. If somebody's right wing, so be it. Of somebody's independent, so be it. If you disagree with views somebody puts forth, argue why those views are wrong without focussing on the person who's views it is. Now, I personally believe that sophistry, distraction, and ad hominem attacks are much more prevalent in right wing culture these days, and I have been very vocal about that view, but I am more than happy to drop the subject if certain people around here would drop the Rush Limbaugh impersonations. And if there's any Al Franken impersonations going on among the left wingers here, stop it; That type of demagoguery is ultimately self-destructive.
Well, I've done what I can to try to eliminate needless partisan diatribes here on The Debate. If only I had faith in certain people around here being able to resist their usual partisan habits... I look forward to the response.

Posted by: ErrinF | January 2, 2006 10:18 PM

Cayambe - If you look at the Truman steel mill seizure case, you will notice the crux of Jackson's opinion is over internal military control and that in the Korean War case, Truman is not using it to go after enemy within, but dictate labor-industry outcomes peripheral to the War.

Justice Jackson - "We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence."

Rebellion within clearly covers enemy within within that Presidential prerogative if aliens, legal resident aliens like Mohammed Atta, are a threat to national security that the criminal justice system is inadequate to cope with. And it means on past precident including American citizens whose support of enemy goals and ideas trumps their patriotism and legal circumstance of citizenry. US citizens in an unlawful combatant role are nor guaranteed a civilian trial as Ex Parte Quirin shows. Nor is "criminal innocence, American citizen" exculpating criteria in defining a class of people treated as enemy in wartime. (Civil War decisions, Korematsu)

The other caveat is Jackson's notation that it can't all be basically made up along the way solely by the Executive, but must be grounded in law as a check.

Justice Jackson - "But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them."

Many posters have become hysterical about the Nixon-Bush-Hitler dictator, but such overheated rhetoric ignores the Emergency Powers Act, which says what Powers the Executive may utilize in a National Emergency with Congress's pre-approval. (Starts at the big end with Presidential ability to wage global thermonuclear war without Sen Byrd standing in the ashes filibustering and goes down to little end orders on farm livestock)

"Roger Kimball writes: - "What are the stakes? The terrorist attacks of 9/11 gave us a vivid reminder--but one, alas, that seems to have faded from the attention of many Western commentators who seem more concerned about recreational facilities at Guantanamo Bay than the future of their towns and cities. For myself, ever since 9/11, when I think about threats to democracy, I recall a statement by one Hussein Massawi, a former Hezbollah leader, which I believe I first read in one of Mark Steyn's columns. "We are not fighting," Mr. Massawi said, "so that you will offer us something. We are fighting to eliminate you." "

"Patriot" 1957 - "Shame on you Chris. If you have any shame."

Go blow yourself, Quisling.

Matthew - It's not just warrantless searches when the Coast Guard faced a moving object they had only limited time to intercept where the hours and maybe days to get judges to weigh warrantability clearly would preclude Coastie actions to flfill their duty to protect the health and safety of the general public(sorta like Islamoid calls from Afghanistan to a sympathetic likely Islamoid here in the USA) it's that the Coasties have the right to board and search with no probable cause. And, the Coast Guard is just one minor example of 28 areas of law permitting warrantless searches. Kids are obligated to go to school by law. Are their persons and lockers exempt from search by the 4th? Heck no! And so on.

Beren: "I know that we need to find out who terrorists are. But in response to your comment, actually, yes, I think that the fourth amendment even protects terrorists if they are US citizens, precisely because we don't know who they are, and so if the 4th amendment is to protect citizens at all, it must also protect citizens who are terrorists, until we know that they're terrorists."
==========================
Sounds like a catch-22 to me.

Posted by: johnnyg

Johnnyg is right.

You are saying that we can look for Islamoids, unless they are traitorous Islamoid US citizens or lawful aliens here, then the 4th protects them totally from scrutiny. Unless we know who they are and what they are up to so as to get lawyers in robes to assent - which we can't without looking for them 1st. Beren's opinion that the 4th prevents any scrutiny of US citizens - and by past court rulings lawful resident aliens like Mohammed Atta with the same "precious liberties protections" while legally here - (until the 1st stewardesses throat is slit then law enforcement is empowered to don jet packs and fly to the plane and make arrests)
Worse, because of the fact that the NSA doesn't know if the unknown phone party is - in Beren's view a fully protected US citizen-traitor, a similarly protected Mohammed Atta, or an Islamoid without legal resident alien protection who slipped across the Border - the only way to prevent "violating" a traitor's or a future Atta's rights is to stop listening altogether (unlike laws saying no warrant needed on possible mob figures or drug criminals being called from overseas or actors within the USA). And FISA lawyering were not meant to sanctify blind hits from a computer algorithm but sanctify warrants on existing suspects once an FBI agent with the balls to possibly embarass his/her superiors with days worth of FISA paperwork being rejected went for it. BUt 9/11 showed the FBI was in CYA mode about looking bad in front of FISA, so they went with what they knew was best for the FBI - traditional law enforcement where the FBI could safely proceed once the "crime" of terrorism was committed. Hence their reluctance to investigate Moussaoui or the Phoenix flight schools...and why an FBI supervisor correctly told his bummed-out , subordinates on 9/12 that nothing bad would happen to any FBI agent because they "followed procedure".

But I thought 9/11 was a wakeup that the old law enforcement model and bureaucratic CYA had failed 3,000 innocent Americans who had all their rights stripped by foreign enemy and enemy within. According to the Lefties running the Democratic Party's activist and donor base - I guess I was wrong.

======================================

For non-Lefty Americans, I think most of us would find looking for American traitors, legally here Islamoids up to no good, and Islamoids infiltrating into the US - absolutely OK without a warrant. Let's ID suspects, then with the ID of possible threats, investigate by warrant, but preserve top secret intel used to ID them from any public airing in Court to protect sources and methods used by the US to safeguard the health and welfare of the general public. And only proceed with a criminal case based on evidence accumulated from use of warrants once an Islamoid is "flagged" by warrantless NSA intercepts. Maybe the FISA court should go - as it puts lawyers in the position of final approving of going after unknown military threats, or not. It was not intended, as Sen Frank Church wrote it, to adress an unknown transnational terrorist threat and failed us on 9/11. When it was shoved on America, even the weakest President of the 20th Century, Jimmy Carter, had his AG Griffin Bell say that FISA would NOT usurp the President's national security prerogatives under Article II nor interfere with his obligation to defend the people of the United States from all foes, foreign and domestic.

Posted by: Chris Ford | January 3, 2006 12:13 AM

The Coast Guard example is in any case not comparable to anything else when discussing the 4th Amendment. For, the reason that SCOTUS upheld the Coast Guard's right to conduct warrantless searches is that the Coast Guard was specifically empowered to do so before the Bill of Rights was written. Therefore, the Court held that the 4th Amendment was not envisioned to apply to the Coast Guard, and the Coast Guard only. See United States v. Villamonte-Marquez.

As far as school law goes, that again is a specious argument. The government is not deemed to require a warrant to search a student's locker because the student's locker is deemed to be government property. It's no different than saying the government doesn't need a warrant to search its own Post Office. And it does require a warrant to search the knapsacks and purses which are the student's own personal affects and which they carry around with them.

So let's stop with this nonsense on other examples of warrantless searches in a flacid attempt to make the FISA ones seem ok. And let's get to discussing why it is necessary that the FISA court gets completely bypassed. Is there any compelling rationale?

Posted by: Matthew | January 3, 2006 12:43 AM

Matthew -

I think the school authorities searching knapsacks and bookbags and doing student patdowns for weapons w/o a judge in robes are somehow in disagreement with your point of view. Nor are student cars immune from search. Law recognizes warrantless search of students as necessary for good discipline and promotion of a learning environment.

You don't seem to want to recognize the commoness of warrantless searches. Can an ag inspector come on your farm and check for livestock maltreatment or disease. You betcha, at anytime. Can a federal or state inspector go into a hospital, nursing home, nuclear power plant without warrant? Sure. Health and safety of the general public exception claimed. Do probation depts need search warrants on freed child molestors to check harddrives or just check on the web traffic of a molestor mot even on probation? No, they don't. Are US soldiers subject to search w/o warrant by military command? Yes, at any time. Exception of good order and discipline. Can your belongings be searched w/o warrant at airports even if flying is not voluntary but mandated by change of duty orders? Of course. Garbage searched w/o warrant? Yep. A Fire Marshall or tax assessor demand to access your home or business w/o warrant? Yes, that is compliance with required ordinances where courts have said they can't be troubled with warrants to enforce necessary state functions. Can a cop search a drunk for weapons when arresting them and bust them for a bag of coke uncovered even if they had no probable cause and a 385 dollar a day judge in robes saying "omni domni" and waving legal paperwork? Sure a cop can.

There are 28 areas where courts say warrantless searches are OK because the search is reasonable or necessary for the health and safety of the public in some way.

But the Left only obsesses about defending presumed terrorist civil liberties, NOT of poultry inspectors showing up at a farm, mass search of innocent Americans at Customs, public school student warrantless searches, inspectors at chemical plants, meat packing plants, mines, regulated weapons or industrial explosives are properly secured...or Dept of Interior/EPA agents showing up to assess spotted owl or Lynx habitat on your property w.o warrant.

The truth is the 28 areas are what the Left supports as part of a Federal/local Nanny State.

But infringement on enemy civil liberties is far worse than checking on the possible threat of inhospility to Lynx by a property owner...to a Lefty...at least.

Get back to me Matthew, when you think the danger to the public from terrorists is serious enough to justify searches with no warrants, as the rec boater threat is. Or be consistent and say that no warrantless searches of nuke power plants should be permitted, nor Fire Marshall inspections, nor hospitals without an OverLord in black robes saying it meets probable cause. If terrorists and traitors are to get a warrantless search pass, so should pig farmers and students.

Posted by: Chris Ford | January 3, 2006 01:47 AM

Some people love to categorize those who disagree with them and pin unflattering labels on them.

The discussion would be more productive if participanys withheld the personal attacks.

Posted by: libvscon.blogspot.com | January 3, 2006 03:56 AM

Some people love to categorize those who disagree with them and pin unflattering labels on them.

The discussion would be more productive if participants withheld the personal attacks.

Posted by: libvscon.blogspot.com | January 3, 2006 03:57 AM

On warrantless wire-tapping:

If in the opinion of a judge, a credible case for suspicion can me made, a warrant is issued.

If no such case can be made, what is the excuse for the wire-tapping?

Can the executive branch wire-tap anyone, just because they want to, without any limit or control?

Posted by: libvscon.blogspot.com | January 3, 2006 04:04 AM

Ok, Chris, you're going to have to start citing case law if you're going to be laying down legal standards that don't comport with or misstate U.S. standards.

Kids in school - Controlled by New Jersey v. T.L.O.: school officials may search a student without a warrant if they have "reasonable suspicion" which is the same standard for a Terry stop (a policeman randomly stopping you on the street). And, of course, a consented search is always permissible (which is why you can search in airports and such).

Student cars - not sure where you're getting your info, but just a couple of weeks ago a school district lost a student drug conviction for not having a warrant and searching his car. Generally, the same T.L.O. standard applies.

Hospitals, nursing homes, etc. - the police may be able to enter, but individuals do not forfeit their own expected privacy rights.

Convinced criminals? What can you say: they have it rough. There's also voter disenfranchisement and removal of the right to own a firearm. You want to start compiling a list of the rights that most Americans get that criminals get deprived? (You can skip the reproductive rights: they got those back this century... previously it was deemed ok to sterilize them).

US soliders? Employees of the federal government at all times, by their own consent. Can't expect much privacy from the government in that case.

Garbage out on the curb? Now you're really reaching. That's only a non-warrantless search requirement because it was deemed that once you put garbage on the curb, you've given up your privacy interest in it as any random garbage man could choose to open up your garbage and see what you have inside. It's like saying you don't need a warrant to arrest someone for selling drugs in the middle of the street: if it's in plain view / not protected by a reasonable expectation of privacy, then you don't need a warrant to get it. Next thing I know you're going to start busting out the stoolie on the wire line of cases.

So, let's take a step back.

There is a very clear and operational method for the executive branch to obtain warrants it wants in secret. The executive branch has the ability to obtain these warrants retroactively in cases where speed is of the utmost essense. Reputedly, the bar to get the warrants are not very high: the vast, vast majority get approved.

So, what is the compelling rationale that the executive branch should conduct these searches without warrants, without judicial supervision, and without a discussion with the public? What is that?

Posted by: Matthew | January 3, 2006 04:16 AM

JohnnyG cites my post and (rightly) points out, that I have created something of a 'catch-22' for the government:

============================================
""I know that we need to find out who terrorists are. But in response to your comment, actually, yes, I think that the fourth amendment even protects terrorists if they are US citizens, precisely because we don't know who they are, and so if the 4th amendment is to protect citizens at all, it must also protect citizens who are terrorists, until we know that they're terrorists."

-Sounds like a catch-22 to me."
===========================================

Yes, indeed. I did recognize that this was, potentially, a catch-22. But here's the thing: once we've allowed the executive to request special permission to spy on citizens, if, after 72 hours, it can demonstrate to a FISA court that its spying is relevant to an investigation of international terrorism, once we've allowed that, we still have to face up to a potential problem. It might be that there are other terrorists in the country, that we could only detect by spying on all the citizens of the country. What I'm saying (as a citizen of this country) is that I'd rather we took the risk of letting that terrorist continue with his plot, than that we abolished all limits on governmental spying in this country. That is because, though I certainly want to prevent terrorism, I also want to preserve our system of government. And if we give the executive unfetttered, and unreviewable, authority to spy on any and all US citizens, we've aready lost the war, because we've already lost the system that protected our freedom.

Let me be even blunter about this and say, honestly, I'd rather risk being blown up by a terrorist, than allow this great country, a citizen of which I am honored to be, to countenance utterly unbounded domestic spying. And I think the founders of our country, as well as some posters in this discussion that are both senior to, and wiser than, me, would agree with me. You have to realize that if the executive can spy on anyone that it wants to, and detain anyone that it wants to, then nothing needs to change for us to have a permanent police state, rather than a Republic. I continue to defy any defender of this NSA spying to state explicitly what would stop a US president who had these new powers from spying on every citizen of the country, if he wanted to.

So, yes, johnnyg (and thanks for your post, btw), there is a potential catch-22. But it's better that we face that, than that we abandon the system that our founders strove so hard to create.

Of course, there are a lot of ways of getting around that 'catch-22'. The administration can use the FISA court. And it can do intelligent analysis of the intelligence that it does have. (This is what we have always done before. There was a time when surveillance of all domestic communications wasn't even possible. That was where the craft of espionage came in.) Even if we say that the administration has to obey the FISA statute, there are still all sorts of things that the administration can do to hunt down terrorism. Perhaps this 'catch-22' situation will never occur. But if it does, it's a strict choice between abandoning meaningful civil liberties and hunting down a terrorist. In that case, following the brave example of our founders, I'd prefer to risk the terrorism than to give up the civil liberties, especially since terrorism would still be possible no matter what civil liberties we gave up.

Thanks for your post.

Posted by: Beren | January 3, 2006 05:53 AM

Chris Ford writes the following:

=============================================
Whatever. If it wasn't for FDRs undeclared Naval War, aid to Russia and the UK in contravention of Congress pre-Pearl Harbor, at best, she would have grown up speaking Russian or German. And generally, the US is fed up with immigrants or foreign tourists lecturing us on how fouled up our country is based on their value systems. Israelis, Iranians, Swedes, Brits, Froggies, even Russians, Saudis, and Czechs just can't resist.
===========================================

I guess we've reached that inevitable point in a US foreign/domestic policy blog where WWII gets brought up. The idea that America's brief period of undeclared naval assistance to Britain, and the even briefer pre-Dec. 7th assistance to the Soviet Union (until mid 41, the USSR was Germany's ally) turned the tide of the war is tendentious at best.

Again ignoring the discourtesy of your suggestion, actually, like many Czechs, she does speak both Russian and German; she also speaks better English than many native speakers that I've met.

As for advice from foreigners, and your feelings about it, a wise person gives careful consideration to criticism from others. A wise country does likewise. Those who have had experience with totalitarianism are in a unique position to spot the danger that it might arise again. It would be foolish to ignore such experience. The fact is that when totalitarianism first arises it can almost always give an excellent excuse for itself, based on urgent necessities (such as terrorism). And not only Czechs, but anyone who has experienced the nightmare of totalitarianism, can tell you that a government that has the ability to spy on all citizens and detain all citizens needs nothing more to form a police state than those two powers.

Thanks, again, for posting.

Posted by: Beren | January 3, 2006 06:12 AM

Chris Ford,

You also write the following, to show that there is meaningful oversight of NSA spying:

============================================
"Every organization has internal oversight. It is valuable to mission in enforcing common values, adherence to rules. If it wasn't meaningful, every organization in America wouldn't bother. Believe it or not, having lawyers, 0.3% of the country in position of authority over all the rest of the American people through external legal oversight and court mandates isn't what the Founders envisioned"
===========================================

I'm certainly not saying that lawyers should rule the country. I'm saying that someone outside of the executive branch should be reviewing domestic spying performed by the executive branch, to make sure that it doesn't get out of hand. Of course organizations have internal oversight. Generally, they have it because there is some mechanism (such as public knowledge) that will, in effect, create external oversight, and they'd rather catch their own mistakes than be caught making them. But eliminate meaningful external oversight, and internal oversight quickly withers. No one has much of an interest in destroying his own career by reporting something that shouldn't be going on, but that the whole bureaucracy, from the top down, wants to be going on.

Internal oversight is not a sufficient safeguard. I think you know that, really.

Posted by: Beren | January 3, 2006 06:21 AM

Chris Ford also writes:

==============================================
"If you think "abuses" are so pervasive that they permeate American society and we need a super class of elite-schooled, independent, annoi[n]ted lawyers ruling over all of us, no. But the country was predicated on the idea that the people rule, the people are mostly right, and they can toss out rulers in the Exec and Congress they disagree with."
===========================================

Chris Ford, the point is not necessarily that abuses are prevalent right now, but that we're creating a system in which they could be absolutely rampant, and we'd be able to do nothing about it. I'm not particularly partial to elite-schooled lawyers, and I certainly don't want them ruling over us. I would ask you this, though: in this post, you appeal to the will of the people as a safeguard. But you also attacked the NYTimes for publishing this story. Yet if the NYTimes, or some other media outlet, hadn't published the story, the people wouldn't know about it. How, then, would they serve as the safeguard that you suggest they are? They couldn't make their will known in the ballot-box about a program that they didn't know existed, could they???

Posted by: Beren | January 3, 2006 06:28 AM

Chris Ford,

In response to my claim that even you, "would probably acknowledge that there are, at least in theory, some things that a government could do that would so deeply affect the freedom or rights of all citizens, that all citizens should have a right to know about them and debate them," you wrote the following:

===========================================
"No I don't. All information cannot simultaneously be shared with the public and the enemy. There is no "right of everyone in the public and the enemy camp to know". That is is media invention. There is an acknowledged right of the public to know adequately to allow democracy to function, but he of the Lefty's Favorite Platitude, Ben Franklin, helped form the Committee on Secret Correspondence - which held all secret data to it's five members of Congressional leadership because sharing it with all of Congress would leak vital war secrets to the enemy and jeopardize the public safety."
===========================================

Wow. Actually, I was making a very weak claim. Only that there could be something, maybe even just one thing, that the executive could do, that you would think was so important that the public had to know about it, even if the executive didn't want the public to know. You actually deny this. I wonder whether you can really mean it. A blanket denial like this is extraordinary. Are you really saying that, if, say, the government decided to frame all the leaders of the opposition party for crimes they didn't commit, and have them thrown into jail or executed, that wouldn't be deserving of public knowledge? What if the top members of the executive branch decided to sell our country out, in time of war, to the enemy? Would this be something that citizens of the country had a right to know? If you think that this would be worthy of public knowledge, then, contrary to what you say in your post, you _do_ believe that there could be something of such importance for the survival and maintenance of our Republic, that the public had a right to know about it, regardless of whether the executive classified what it had done or not. And if you agree about that, then the question, re: the NYTimes, is really just why the NYTimes action in this case, falls into that category, or why it doesn't. Doesn't warrantless domestic spying seem like something so crucial to the structure of the Republic, that the citizenry have to know about it, and debate it? You, yourself, in other posts, cite the will of the people as a safeguard against any abuse of executive power. But how would they express their will if they didn't know what the NYTimes reported??

Posted by: Beren | January 3, 2006 06:45 AM

Chris Ford,

When I said, of this NSA spying, that, "This is something that we simply had to know," you replied with the following:

===========================================
"Who decides that, Beren? Press owners Microsoft, GE, Yale Law School Press? The Egyptian Gov't which has accredited reporters here? Pravda in the past? The Sulzberger family? A Saudi Al Qaeda sympathizer publishing a blog and calling himself the press whose Al Qaeda operatives are euphemistically called "reporters"? Or, should what the public needs to know and what must be safeguarded for their security be decided on by their elected representatives vs. a private family with enemy sympathies?"
===========================================

Actually, I was taking responsibility for the statement myself. If the citizens of a republic can be kept, for years, from knowing when their government starts to spy on them, then they no longer live in a free Republic.

I don't know who should decide when this information is worthy of public knowledge. Those who have studied the role of the media more than I have would have a better answer as to who should make that decision. I do know, though, that no matter whose role it was to make the decision in this case, publishing the information was the right decision, and keeping it forever secret would have been the wrong decision.

I definitely disagree with you if, by your question towards the end, you mean that our elected representatives should decide what gets printed and what doesn't. If that's what you mean, the Founders disagreed with you too. They didn't say that the Press should be an arm of Congress. Among other things, we as voters need to know what our representatives are doing, and we wouldn't know that if they could decide what we heard about their activities.

Posted by: Beren | January 3, 2006 07:04 AM

Chris Ford,

You write:

=============================================
"Mighty white of you to issue your blessings of "so be it" on a matter where Judy Miller, in a far less important matter of national security, found the press was not above the law. There will be Sulzbergers facing Grand juries, and eventually convicted leakers sitting in jail next to their brothers in arms Jose Padilla, Aldrich Ames, and Robert Hanssen over this one - even on death row if it is concluded that violations of the Espionage Act in wartime cost American lives (meaning a big Islamoid attack happens soon, many lives are lost, and the political will is there to change the leakers to the NYTimes under capital crimes statutes covering wartime release of critical state secrets)."
============================================

What I meant by "so be it" was that if our Republic is forced with a naked choice between, on the one hand, letting the citizens know that the government is spying on them, and also letting the terrorists know that, or, on the other hand, keeping the terrorists in the dark, but also keeping the citizens in the dark, then we have to put up with letting the terrorists know. It is our responsibility, as the citizens of this republic, handed down to us through the blood of others, to be willing to take that risk. It would be cowardly and shameful, and a betrayal of those who have already given their lives for our system of government, if we now failed to keep a watchful eye on the executive just because we were afraid of terrorism.

Ideally, we can avoid such a stark choice. We can amend FISA, if there really are problems with it, and Bush can work through FISA. Or he can propose some other system, and we can debate that. But if push comes to shove, and the executive claims an unlimited right to spy on all citizens, then we have to publicize that fact, no matter what the risk to our own lives, because our very system of government is at stake, and we should be willing to risk our lives for it.

I don't think there will be a capital charge in this leak. Do you really think so?

Posted by: Beren | January 3, 2006 07:24 AM

A typo in the previous post. It should read, "if our Republic is _faced_ with a naked choice...."

Posted by: Beren | January 3, 2006 07:27 AM

Chris Ford,

In reply to my question about what limits there are on the executive, you wrote the following:

==============================================
"The limits are imposed by the trust we place in the executive in wartime (no small matter, as the trust is truly life or death for US soldier citizens and the general populace hoping the President and those under the Executive are right in their judgement in prosecution of the war), limits by the Congress mainly in power of pursestrings, and in the voters to throw them out or re-elect as they judge Congress and the Exec's conduct. As Re[h]nquist writes, the courts, unleclected, wisely refrain from meddling in war conduct as much as possible "in times of war, law is silent".

"So plenty of checks exist. Accountability to the people exists. FDR held all sorts of wartime secrets, yet no one argues the public was "blind" in voting. They threw Carter out as weak when he faced the Soviets on the Rise and America humbled by Islamoids. LBJ was not able to run again because the will of the people opposed him."
============================================

If I've correctly understood your posting, there are three 'limits'. The first is 'trust'. I'm not sure how you think this operates, or limits executive power. Who is supposed to 'trust' the executive? The people? In that case, this limit is really just the same as the third one you mention (the people can vote the president out). Is there anything that makes this separate from popular will, which is your third point?

Second, you mention Congress, with the power of the purse. And indeed, you're right that Congress has that power. But that power means little, if Congress has no idea what it is funding. How does the average congressman make a serious (and difficult) decision about funding for the NSA, if he doesn't even _know_ that the NSA is spying on US citizens without warrants? Or, if he knows that, how does he know whether abuses are taking place?? He needs to know that, before he can really exercise the power of the purse. But he doesn't know that, because only four (?) people in Congress have been briefed on the general details of the surveillance and they're not allowed to reveal what they've heard, nor do even those four have the ability to investigate the surveillance that is being performed to see if abuses are being committed.

Finally, you mention the people, and their ability to vote out a president who abuses his power. As I've noted earlier, this is a bit ironic, given that you've also argued that the NYTimes shouldn't have given the people the information they would need to make such a decision. But leaving that aside, how will the people know whether abuses are being committed? The NYTimes (contrary to your and Bush's wishes) revealed that the program exists. But even the NYTimes didn't reveal whether abuses were being committed. Let's say that I'm like JZ, and I will vote against the president if he has abused this spying power, but for him if he has not abused it. How do I find out whether he has abused it?

None of the things you propose really qualifies as meaningful oversight.

More importantly, you still neglect the urgent question that I was asking you: is there anything that the president is not allowed to do, and if so, what is it? Is he legally entitled to incarcerate all US citizens, if he wants to? Is he legally entitled to spy on the deliberations of the opposition party? If he is, don't you think that destroys our freedom? But if he isn't, what mechanism is in place to make sure that he doesn't do these things?

Thanks again for posting.

Posted by: Beren | January 3, 2006 07:52 AM

"You don't seem to want to recognize the commoness of warrantless searches. Can an ag inspector come on your farm and check for livestock maltreatment or disease...."

Yes, because the legislature permits and regulates such searches through public health law, not because the inspector just feels like harassing someone who owes him money, etc. Yes, because the inspector's power is overseen by by a county agent, who is overseen by the county executive, who acts within the law as written by the county legislature, and there will be consequences to the inspector for abusing the power to inspect farms. Yes, because the farmer has legal recourse if the inspector violates his rights.

The legislators have told us they did not give the power of warrantless spying past 72 hours. There is no oversight of what the President has done. There are no consequences to the President if he abuses such absolute power. And if we allow the President to decide independently who is a threat to America and to hold them with no charges or legal access, then we have no recourse if the president violates our rights.

Public health law is legislatively controlled and legally supervised, with consequences for abuse of power.

Get the difference now?

Posted by: patriot 1957 | January 3, 2006 09:06 AM

Let me first state that I voted for Bush twice, am a strong conservative and was one of those 31% that still supported the President this past fall.

However, I also agree with Beren's statement:
"If it can declare anyone an enemy combatant anywhere, even a US citizen in the US, and if there is no meaningful opportunity to contest that designation, then, in effect, the administration can detain, imprison, and strip all rights from any US citizen or group of US citizens anytime it wants to, no matter what its real motivation is. And if the administration can spy on anyone so long as it claims (subject to no external review) that the information it is gathering might possibly in some way help to prevent a terrorist plot, then the administration can spy on anyone and everyone all the time. Those two powers are all a government needs to overthrow democratic processes and create a police state."

However, I disagree with the notion that Bush's authorization of the NSA spying program was either illegal or "traiterous". It was done in the context of collecting signals intelligence during a declared war on Al Quaida. And it was done for the right reasons. There is no reason to suggest that Bush carried out this policy for any ulterior motives - such as personal, financial, or political gain. Such purposes almost always accompany any true "abuse of power". (Some good examples of power abuse might include such things as, reviewing of confidential FBI files of political opponents, arranging for the IRS to audit prominent opponents of one's policies, channeling illegal campaign donations from the Chinese Communist Party into a Presidential Campaign, or using the power of the oval office to influence testimony in a court of law.)

But there is no evidence to date, that Bush administration was anything but overzealous in protecting the nation from another attack.

I think we, as Americans, can and should decide how far we are willing to let the government go in order to "protect us". That debate should extend to not only our civil liberties but to our tax dollars as well. Many millions of dollars have been waisted on "security" measures that are not worth the investment and are often a pork project of some Senator or Congressman. Let's have this debate openly and honestly.

Posted by: Mike M | January 3, 2006 12:16 PM

Mr. Ford certainly seems to value quantity over quality when it comes to debate.

As someone who would clearly be an "America hater" in his view, I'll take my chances with Al Queda over an imperial Presidente any day of the week.

Simple as that.

Posted by: Mr. X | January 3, 2006 12:28 PM

The ACLU has always contended that if you give the Government too much power to usurp our civil liberties, the natural extension of this policy will be a totalitarian regime that arbitrarily violates our civil liberties at will.

Being a civil libertarian, I have always more or less agreed with this position (although strongly disagreed with the ACLU on other fronts - particularly, religious freedom). However, our own history seems to differ with this conclusion. In fact, during previous wars in which the Executive Branch overstepped its authority and violated constitutionally guaranteed civil liberties, the result was not the abolition of freedom, but rather the extension of freedom to millions of human beings that did not previously have them, nor would have them had it not been for the war.

Examples: The Civil War led to the freedom of millions of slaves. World War II led to the freedom of millions of Jews living in Concentration Camps, and free elections in Japan. The Cold War led to the freedom of millions of Europeans in puppets states that were controlled by the USSR. Even in the modern war on terrorism, the result has been the freedom of 50 million people in Afganistan and Iraq.

In all of these wars, the intrusions on civil liberties were significant and alarming. But the end result of all of these conflicts was the freedom of millions of people that would not have it otherwise. And what have we lost in all of this? It's hard to say. But there is no nation on Earth more free than the United States of America. No where else are people more free to elect their leaders, or to voice their political opinions more freely and openly.

So, in summary, theories are great but real-life examples are more compelling.

Posted by: Mike M | January 3, 2006 01:57 PM

Chris Ford has certainly amassed an impressive array of data in support of unlimited executive power. Unfortunately, it's all smoke and doesn't support his argument upon analysis. Case in point, the National Steel case, probably the most relevant SCOTUS case to this issue. Chris cites all manner of dicta in the case to support the "plenary power" of the executive in wartime. He conveniently leaves out that the prmary holding went agains the claims of unfettered executive power. And, if he really wants to claim that the freedom of labor and capital to bargain are more of a restriction on the actions of the executive than the 4th Amendment, he's delusional.

Of course, with all his rantings about "Leftists" and "red diaper babies," one might reach that conclusion anyway.

His posts here are unifromly in favor of police state powers, and generally rely on McCarthyite tactics to smear poeple who disagree with them. And, before you go back to defending McCarthy, the number of people who had their lives destroyed by his witch hunt greatly outnumber the number of actual Communists caught - a fact that also has great relevance in this debate, as the NSA spying could subject many people other than legitimate terrorists to criminal investigation and prosecution.

Posted by: brewmn | January 3, 2006 02:39 PM

Beren wrote: "Interestingly, the AUF actually only authorizes the use of force against nations, organizations, or people that "planned, authorized, committed or aided" the 9-11 attacks, or harbored or aided those people or organizations who did."

Beren............Thank you for making this particular point. It is more important than it might seem at first glance. The Congressional authorization itself is well defined and cannot be reasonably construed to be an indefinite "War on Terror", which is almost by definition a war of eternity. Al Qaida itself, specific individuals primarily located in Europe (Hamburg especially), Afghanistan (for indisputable aiding and harboring), and arguably Pakistan (aid in the form of harboring) have been legitimate targets under it. Iraq never was, although extensive efforts were made to paint it otherwise. So if and when this matter ever gets before the Supreme Court, the war context within which claims of "war powers" or "emergency powers" or such will be considerably narrower than the rhetorical "War on Terror" would imply.

Beren, I should also say that your performance in this forum has been particularly outstanding. My complements to you.


Chris Ford wrote:
The other caveat is Jackson's notation that it can't all be basically made up along the way solely by the Executive, but must be grounded in law as a check.

Justice Jackson - "But it suggests that emergency powers are consistent with free government only when their control is lodged elsewhere than in the Executive who exercises them."

Many posters have become hysterical about the Nixon-Bush-Hitler dictator, but such overheated rhetoric ignores the Emergency Powers Act, which says what Powers the Executive may utilize in a National Emergency with Congress's pre-approval. (Starts at the big end with Presidential ability to wage global thermonuclear war without Sen Byrd standing in the ashes filibustering and goes down to little end orders on farm livestock)

Chris..........I must admit I have not read the Emergency Powers Act so I cannot say it does not cover this particular situation. On the other hand, to the best of my knowledge, the administration has not cited this particular Act as a legal basis for their actions so its not unreasonable for me to presume that it offers no such support. Now since the matter at issue here is neither global nuclear war or farm livestock, but rather warrantless wiretaps, perhaps you might be more specific about what it is in the Act which provides grounds for this.

More seriously, what bothers many of us is the reluctance of the President to submit his "emergency power" in this particular case to the independent control of the Judiciary (FISA) which is the mechanism independently authorized by Congress, a methodology that also conforms with Jackson's observation. It is his claim to source this power in the text of the Constitution that defines his Office and makes his use of the beyond Congressional control or Judicial control which is at direct odds with the Jackson quote you have selected. Now this may be true, may be valid. But it cannot rest on the President's interpretation of the Constitution nor that of the government's lawyers. The Constitution vests the exclusive authority for its interpretation in 9 Justices such as Jackson, who collectively form the Supreme Court. Until they speak, the President advances a hypothetical.


Mike M wrote:
But there is no evidence to date, that Bush administration was anything but overzealous in protecting the nation from another attack.

I think we, as Americans, can and should decide how far we are willing to let the government go in order to "protect us".


Mike..........I agree with you. I would go even further and assert we don't actually have any evidence that they have taken any actual actions which go beyond what the FISA court would authorize were they brought before it. A NYT article is not in itself, evidence. It should be the purpose of the Congressional hearings upcoming to develop such evidence as is possible in a case involving national security so as to further inform the decision you call for in your second sentence, with which I also wholeheartedly agree.


Thank you all.

Posted by: Cayambe | January 3, 2006 02:52 PM

Beren - "I definitely disagree with you if, by your question towards the end, you mean that our elected representatives should decide what gets printed and what doesn't. If that's what you mean, the Founders disagreed with you too. They didn't say that the Press should be an arm of Congress. Among other things, we as voters need to know what our representatives are doing, and we wouldn't know that if they could decide what we heard about their activities."

1. The Founders believed in safeguarding military secrets. They formed the Committee on Secret Correspondence for that purpose. In general, we should have an open society, but our elected leaders of BOTH parties agree that SOME things should not be revealed to a current enemy or potential foe of our national defense capacities.

2. There will always be someone in the American public or in government with strong sympathies for the enemy, seeking to advantage the enemy or simply weaken and punish the nation they hate the most. By disclosing state secrets if possible. They need press collaboration, hopefully finding a press that shares their ideological views or wishes to make money from the disclosure process.

3. The "press" is an unconnected or at best incompletely connected patchwork of powerful corporations, wealthy Jewish publishing families, universities, affiliated chains with substantial foreign investment from places like France, China, UK, Saudi Arabia, and a few remaining independents. The "new press", millions of new "presses" on the Internet now includes schools, companies, Americans from right wing to radical Jihadists. "Total freedom of the Press" means anyone of them can search out any American holding state secrets and claim "the public's right to know" trumps any law and they should also be permitted to conceal their law-breaking snitches ID.

4. There have always been controversial programs where the elected consensus believed they had to be safeguarded from the enemy or a rival under force of law and a minority who would have loved to shout out the error of it if they could get away with violating the majority's will or law without consequence. Some of those have been WWI radio jamming programs, the Manhattan Project, property owners ripped their land was taken for a secret base, the Stealth Project as a taxpayer rip-off they thought. All through this, both Parties managed to debate and budget secret programs without it being argued by informed individuals in NYC, Peoria, Moscow, Beijing, and Tehran.

Beren -

"I don't think there will be a capital charge in this leak. Do you really think so?"

The penalty is on the books, but with our open court system, spies and traitors usually get around it because they have leverage. Aldrich Ames is "credited" with the murder of 14 agents working for us through disclosing their names to the Soviets. Hanssen got 7-8 American agents executed. But we couldn't give them their treasonous rewards because they threaten to pattern their whole defense on revealing secrets in open court because they have nothing to lose. And from the court it is a simple thing for enemy embassy staff to listen to each word or get a transcript courtesy of an ACLU lawyer.

Even without the open disclosure issue it would be hard to charge the NSA leaker(s) with a capital crime unless the government is willing to show a pile of dead American bodies they can tie to what the NYTimes did. And even with a pile of dead bodies, if the leaker is too high in social or governmental status, strings will be pulled and no death penalty or stigma of treason charges will be made. Like with Alger Hiss. The elite takes care of it's own.

Beren - "You still neglect the urgent question that I was asking you: is there anything that the president is not allowed to do, and if so, what is it? Is he legally entitled to incarcerate all US citizens, if he wants to? Is he legally entitled to spy on the deliberations of the opposition party? If he is, don't you think that destroys our freedom? But if he isn't, what mechanism is in place to make sure that he doesn't do these things?"

You overlooked my saying on several occasions that checks exist and each of your strawmen arguments presume a conspiracy between thousands of personnel in the Executive, Military, and Congress. This is not about incarcerating all American citizens by dictatorial fiat, using wiretaps to convict and imprison, spy on the opposition party that knows of the spying as part of legal oversight. This is simply about finding WHO Al Qaeda is calling in the USA in wartime. This is no more a slippery slope to the long night of Black Fascism as the case some paranoid Democrats make that once an American soldier tastes enemy blood, it is inevitable that they will return and kill or beat their wives (a sweet little post-Vietnam slur the anti-Americans in the press tried resurrecting about soldiers returning from Afghanistan - the mindless killing machine meme).

All in all, a very good back and forth we had on this thread, Beren. Thanks for the debate!

Mr. X -

"As someone who would clearly be an "America hater" in his view, I'll take my chances with Al Queda over an imperial Presidente any day of the week.
Simple as that."

Well I hope it doesn't come to that, but if it does, preferably in a Blue area sympathetic to the "rights" of radical Jihadis, it will be a win-win-win situation.

A win for Al Qaeda.
A post-mortem win for you.
A win for America if it helps wake up the remaining Blue areas to the fact that there really is a war happening, not a bunch of misguided criminals only made the way they are through infidel racism and oppression.

Posted by: Chris Ford | January 3, 2006 02:56 PM

Cayambe wrote:
"More seriously, what bothers many of us is the reluctance of the President to submit his "emergency power" in this particular case to the independent control of the Judiciary (FISA) which is the mechanism independently authorized by Congress, a methodology that also conforms with Jackson's observation. It is his claim to source this power in the text of the Constitution that defines his Office and makes his use of the beyond Congressional control or Judicial control which is at direct odds with the Jackson quote you have selected. Now this may be true, may be valid. But it cannot rest on the President's interpretation of the Constitution nor that of the government's lawyers. The Constitution vests the exclusive authority for its interpretation in 9 Justices such as Jackson, who collectively form the Supreme Court. Until they speak, the President advances a hypothetical."

Cayambe, I understand why you would want Congressional and/or Judicial oversight over the President's conduct of the war. However, this does not have any basis in the Constitution. The Constitutional provides to Congress the power to "Declare War". But it gives the President the power and authority to conduct the war as "Commander-In-Chief".

The Constitution does not give Congress "oversight" over this Presidential power. Therefore, the Congress cannot give, nor take away the powers of the Commander-In-Chief to conduct a war. The reason that the Constitution was written this way is that the founding fathers new that the Democratic process of debate and concensus was great for producing peace-time legislation, but it is no way to conduct a war. Decisiveness and Unity of Command are two essential principles of war that cannot be accomodated by the Democratic Process.

In other words, we can argue and debate all we want on whether to declare war, but once the declaration is made, the Congress has to butt out and let the President do his job.

The role of the Judiciary in war is not mentioned in the Constitution. However, the Supreme Court's role is implied in interpreting the law, particularly as it relates to our rights against unreasonable searches and seizures of property, and against unlawful imprisonment. One of these issues will be clarified when the Supreme Court rules on Jose Padilla's case. I suspect that the Bush Administration will lose on that one - I have a hard time believing that the government is allowed to hold a US citizen without trial indefinitely.

As for the "eaves-dropping" - it is hard to say whether that will be found to be "unreasonable". This is one phrase that the founders left open to interpretation. Is protection of national security a "reasonable" argument? I have no idea what the Supreme's might say on that.

Posted by: Mike M | January 3, 2006 03:46 PM

Mike........Missed your last post while writing mine. A couple of observations on it.

As a fellow civil libertarian I wholeheartedly support the ACLU even when I disagree with a particular position they might take in a particular case. But I know of no other organization which is willing to step up to the plate for legitimate issues raised by even the most despicable, abhorent, or intolerant individuals/groups.
It is something to celebrate that the least among us has a competent voice before the bar of justice.

I should be careful of pre-judging their worth on the matter of religious freedom. While they are inclined to oppose anything smacking of state endorsement or approval of religion, they are equally inclined to oppose anything smacking of state control or limitation of religious freedom.

As to the empirical case you offer in support of the position I do not take, I must say it is a good one, reflects perspective, and has the weight of history. You might, I think, also add the millions of South Koreans and Japanese to your list, not to mention the Russians themselves.

Acknowledging that, one must still wonder whether we would have and could have played such a magnificent role in this world had we not fought so tenaciously for our civil rights, not fought so tenaciously for the preservation of the Constitution which defines our government, the rules to which it must conform itself, our rights as citizens. So I would say that our current concerns are important ones, necessary ones, to maintain the national strength which has enabled us to perform as you have observed. Yes, it is good that the Constitutional is flexible, but it always remains necessary and patriotic to resist, to constrain its flexibility lest it morph into something we should all regret.

Good post Mike.

Posted by: Cayambe | January 3, 2006 04:12 PM

Cayambe wrote:
"Acknowledging that, one must still wonder whether we would have and could have played such a magnificent role in this world had we not fought so tenaciously for our civil rights, not fought so tenaciously for the preservation of the Constitution which defines our government, the rules to which it must conform itself, our rights as citizens. So I would say that our current concerns are important ones, necessary ones, to maintain the national strength which has enabled us to perform as you have observed. Yes, it is good that the Constitutional is flexible, but it always remains necessary and patriotic to resist, to constrain its flexibility lest it morph into something we should all regret."

I agree. Part of the reason we retained our rights after previous conflicts is that we were sure to insist very strongly that the government gave them back at the end of the conflicts. We must be diligent and careful.

For me, this issue is not about President Bush (as many have reflexively taken up a pro-Bush or anti-Bush stance in this argument), because this issue has been around long before the current Presidency and decisions we make today will certainly last long after the current President is no longer in power.

Have a great evening, everyone!

Posted by: Mike M | January 3, 2006 04:40 PM

Posters might reconsider flailing in feigned horror at this latest puffed up act of "tyranny" by our gov`t - it may have kept some Americans` heads and limbs attached to their torsos...your own, perhaps. I suspect that most of the outrage expressed here is an attempt to exploit a perceived opportunity for political gain. This slippery slope is a speedbump.

Posted by: bender | January 3, 2006 04:54 PM

Re: Chris Ford

Brevity is the soul of wit - I guess that makes you 0 for 2.

I'll still take my chances with Al Queda over a life among good Germans like yourself any day of the week. As one old dead white guy said, give me liberty...

Posted by: Mr. X | January 3, 2006 06:44 PM

Posters might reconsider flailing in feigned horror at this latest puffed up act of "tyranny" by our gov`t - it may have kept some Americans` heads and limbs attached to their torsos...your own, perhaps. I suspect that most of the outrage expressed here is an attempt to exploit a perceived opportunity for political gain. This slippery slope is a speedbump.
Posted by: bender | Jan 3, 2006 4:54:10 PM

Thanks for sharing your suspicions with us. When you actually have a point to make, maybe you'll share your own, perhaps.
In the meantime, you're just dodging the issuing, excusing the president in true Bush apologist fashion.

Posted by: ErrinF | January 3, 2006 07:04 PM

Now now ErrinF, I thought you had reformed.
Its like smoking...tough to kick the habit isn't it? :o)

Posted by: Cayambe | January 3, 2006 07:22 PM

We all know that the Bush administration pays consultants who pose as independent thinkers and spew forth Bush propaganda.

We obviously have a few such whores on this forum.

Why waste time and effors responding to their effluvia?

Posted by: libvscon | January 3, 2006 07:50 PM

Now now ErrinF, I thought you had reformed.
Its like smoking...tough to kick the habit isn't it? :o)

Posted by: Cayambe

LMAO!

Posted by: johnnyg in NE DC | January 3, 2006 10:10 PM

I se there are plenty of goofballs, left wing hacks, that are linked to on the initial article. Let's examine one :

http://www.theatlantic.com/doc/200511/declare-war

"Declare War
It's time to stop slipping into armed conflict "

We see already, on the title, and the heading, the left wing anti-war stance.
Must declare, an old whine from the left, and the awful slip into them. You should know, if you have any experience at all in politics, the left wing loons wrote this article. If you aren't aware of that, you aren't versed in politics.


"by Leslie H. Gelb and Anne-Marie Slaughter
..... "

We'll skip the first paragraph, it's a few personal attacks on Rumsfeld, and the White House, calling them liars.

The second paragraph attacks multiple American Wars, and slams the USA.

"But Iraq is only the latest in a long line of ill-considered and ill-planned American military adventures. "

Yes, here we have the really pessimistic left wing.

Then we have at least a half lie :
"Our Framers could not have foreseen the present age of nuclear missiles and cataclysmic terrorism. "

Well, the framers dealt with terrorism. Wrong on half at least, speculating on the former, and giving the framers no credit, for they lived in an age of developing weaponry.

Finally, they get to trying to say something, but wind up spewing crap anyway.

".. a declaration of war has a great deal to recommend it today: it forces a deliberate, public conversation about the reasons for going to war,"

So did the recent run up to Iraq. No point there.They said so in the first paragraph.

" the costs, the risks, the likely gains, the strategies "

Also happened, as noted, the authors spoke of all the public debate in the first paragraph, costs, troops, risks, strategies, and then slammed the WH for lying. Why is it these left wing wackos forget what they wrote in their first paragraph ?
They are fools. No doubt, a declaration for war has no thing pointed out by them so far, that indicates " a great deal to recommend it ". Let's continue to see if they keep lying, and contradicting themselves in their very short piece. So far, they get an "F" for excessive lying.

" for achieving them--all followed by a formal vote. "

Well, a formal vote was taken on the war for 911. See public law 107-40. The vote had a single detractor, everyone else voted for it. So there goes the "No vote" lie.
Still an "F".

The next paragraph tries to establish bona-fides by stating there is a debate on this subject, and cites sources. We'll skip it, except for the last sentence.

"For these experts and countless other lawyers and constitutional scholars, the solution is for Congress to step up and reassume primary responsibility for sending the nation to war."

Well, that's the cart before the horse. First they should have established Congress shirked it's duties. They have not done so. Let's see if they do further on.

"The problem is that Congress wants power without responsibility."

Here they state a problem they percieve, and it's insane. They have made a fool of themselves with this statement. It's a popular misstatement, so without THINKING, they repeat it.
First they tell us Congress shirked it's duty ( It's power ), but I disproved their points, now they claim, Congress has the power they shirked, but doesn't want the responsibility of it.
How insane are these two left wingers?

They follow the same old false argument, so you get the same old false ideas, that don't make sense. Either congress transferred their power, and along with it their responsibility, or they didn't.
Can't argue they transferred their power to the president, then claim they want their power but no responsility. If they did transfer power, then they transferred their responsibility as well.

"... President James Madison asked for a declaration of war against Algiers to stop the Barbary pirates, Congress declined, but authorized him to use "such of the armed vessels of the United States as may be judged requisite." "

Oh, so this has been going on a long time, hasn't it. Congress didn't want to declare war on Algiers, but decided the president could go war the pirates. Ok, no problem there.

Now we get to thier real complaint. War.They don't like it, so everything evolves around making it look like it's all a mess and illegally or foolishly entered.

"Over time such authorizations have become fast tracks to war. "

They also have not. But, in some cases, starting slow, and trying to keep things minimized is bad? Why not start little, in hopes of avoiding full scale conflict?

"Congress votes up or down on the president's often vague military proposals, without accepting responsibility for judging the objectives of the war and the plans for waging it."

Oh really, so now you claim the congress is irresponsible. Once again, you don't like war, so no conflict can ever please you. The congress therefore is guilty of not noticing it's a war, it's dangerous, and people die. It's hard to reach the goal, and plan for it. How shameful.

Here's the next big lame lie. PRETENDING THE CONGRESS DOESN'T HOLD THE MONETARY POWER, THE "PURSE STRINGS". Read the next lines they have, and keep in mind, the Congress cut off funds to get us out of Nam :

" In the wake of the Vietnam War, Congress tried to fix this problem by passing the War Powers Act, which states that troops sent into combat by the president must be withdrawn within sixty days unless Congress specifically approves an extension of combat. Trouble began immediately. Richard Nixon vetoed the act; when Congress overrode the veto, he simply reaffirmed his right to go ahead with war regardless of what Congress said. "

Well, since congress can pull the funding, isn't that how they should "stop the war " ? That's how they did it.
More foolishness- after all that pabble about Nixon asserting "power" by "ignoring" congress, they say:

"But Nixon's concerns were unwarranted: the War Powers Act was much more a symbolic assertion of congressional power than an actual constraint on the executive."

LOL - Oh boy. What's their explanation ?

"It is naive to believe that any Congress would vote to pull back troops just sixty days after they'd been deployed. "

Oh really. LOL. We have plenty of recent EXAMPLES, apparently these ladies don't know their 90's history.

Then they get to their new plan, an automatic drop on the funding in congress, if congress doesn't ok some war that goes beyond their unstated "length".

"But if he planned to keep troops there to unseat the government and transform the country, he would need a congressional declaration. (Without one, funding for troops in the field would be cut off automatically.)"

LOL - So let the congress get past the "terrible pressure" of having to "support the president" , by automatically cutting off the funding, SO CONGRESS DOESN'T HAVE TO VOTE TO CUT IT OFF.
Yes, since war is so terrible, the congress could just NEVER stop the funding on their own principle. The pressure is SO GREAT to continue the awful thing, right ?
So these two have a " responsibility free"
"AUTO OFF ".
LOL- NO WONDER THEY NEVER MENTIONED THE POWER OF THE PURSE FOR CONGRESS. THAT WOULD GIVE AWAY THEIR LITTLE "NO WAR" PLAN.

LOL - Look what comes next... they dream this will make it very hard for the President to make a case for war. LOL

"This process would put considerable pressure on the president to develop his case with far greater care than has been the norm over the past fifty years. "

Well, 50 years PRECEDES the War Powers Act. LOL - Wow, the bias is immense.

"The bill would satisfy their concerns about how easily the United States has gone to war, with subsequent regrets about either the war itself or how it was fought.
"

LOL - More anti-war rhetoric.There's more after that as well.

"But in the wake of the Iraq War such a law might also appeal to many ...."

LOL - It's a wake noone could possibly abide. LOL

"particularly those who have come to feel that the United States is not getting the foreign-policy results it should "

Oh boy. The "anti war" fix.

This isn't an article on " formal declaration of war", as the author here links to it as, it's an article on ANTI- WAR PLOTS.

"The enemy becomes emboldened, and we begin to lose--first psychologically and then literally. "

LOL- OF COURSE - LOSE OUR PUBLIC, LOSE THE WAR. The perfect anti-USA Viet nam screed of the left. I feel like hugging a tree.

"And in those cases where the president was unable to persuade Congress to make war, the United States would almost always be better off. "

LOL - Yes, the near perfect antiwar law.

"The legislation we propose would not diminish the president's considerable stature as commander in chief as he made his case to Congress. If his arguments still failed, the case could not have been very compelling. "

LOL - another lie in the same sentence. Stature- oh I guess stature is not power, prestige, but the ability to humiliate yourself in front of congress and be told forget it.
Well, you argued the president had too much power the whole time, and keep arguing congress needs to take its power back, and then say " It won't reduce the president's deal ".
LOL

Man I can't stand liars.

"Today a transportation bill gets more deliberation than a decision to send American troops to war. "

Oh what a bunch of crap. You don't watch Pentagon TV, do you ? You expect, what, 2 years of deliberation after Pearl Harbor, before we "go to war" ?

OH THAT'S RIGHT I FORGOT. SUDDENLY ALL WARS OF ALL TIME WERE MELTED DOWN TO JUST 2 IN YOUR MIND, VIETNAM, AND NOW IRAQ.

What CRAP.
It seems safe to assume that this is not what the Framers intended. "
Far better if we knew that before the killing began.
"

Posted by: SiliconDoc | January 3, 2006 11:16 PM

Chris Ford "And any reporter knowing ID can be queried under Grand Jury immunity so they can't take the 5th and I imagine that the NYTimes legal department after the multimillions they coughed up in the Judy Miller defense - are shitting bricks now - the demands they made to discover the leaker of Plame's name so as to destroy the evil Bush-Hitler have backfired badly. "'Dos chickens have come home to roost", "

ROFLMAO - The curtains are coming down on the traitors ! Hurrah ! Hurrah !

Chris, you are TOO WELL INFORMED for the detractors to deal with !

Hurrah ! Hurrah !

Posted by: Silicondoc | January 4, 2006 12:04 AM

ROFLMAO - A week into the discussion, and poor Will, the hater of anything but strict adherence the FISA court, cannot tell if he disagrees with Chris Ford, the hated right wing neocon attacked by the virulent lefties in both threads!
ROFLMAO

ONLY ALIBATARD CAN PLAY SO DAMNED STUPID, AND THINK IT'S A NICE " ATACK HIT " ON THE "RIGHT WING NEOCON" BY IMPLYING HE "NEVER HELD A POSITION " ON THE WHOLE WEEKLONG TOPIC WITH DOZENS OF POSTS !

ROFLMAO - WHAT PATHETIC PIECES OF CRAP !

" Chris-

I can't even tell if I disagree with you yet or not because I have been utterly incapable of extracting the answer to the following question from any of you:

What oversight do you suggest?

SAID WILL .


ROFLMAO

WILL PULLED THE SAME SHIT ON ME, ABOUT 20 TIMES IN THE OTHER THREAD- AFTER ERRINF DID IT.

THEY BOTH CLAIMED I TOTALLY SUPPORTED BUSH PERIOD, SO THE ANSWER WAS ALREADY APAPARENT TO THEM. THEY JUST CAN'T ABIDE BY THAT ANSWER.

THEY PRETEND " INFORMING THE FISA COURT, AND THE CONGRESS, IS NOT OVERSIGHT ".

GUESS WHAT LEFT WING ATTACK DOGGY LIARS?

WE KNOW YOUR POSITION, IT HAS BEEN ABSOLUTELY CLEAR FRO YOUR FIRST POSTS.

WE ARE NOT STUPID FOOLS LIKE YOU MORONS.

ROFLMAO.

YOU WEASELY LOSERS.

YOU DESERVE NO ATTENTION, ACTUALLY, ABSOLUTELY NONE.

Posted by: SilioconDoc | January 4, 2006 12:11 AM

"Patriot 57, what you wrote was very well said. "

ROFLMAO - YOU BUTT KISSING LEFT WING LUNATIC!

Patriot 57 pretends he knows more about security than an ADMINITRATION THAT HAS PREVENTED FURTHER ATTACKS FOR 4+ YEARS !

ROFLMAO- THE GODDAMNED WHINING LIBTARDS--

THE PIECE OF SHIT - SMARMY AS A VILE SACK OF WET SHIT ON HOT ENCLOSED SUN PORCH-

WHINED- AFTER ALL HIS OTHER CRAP - THAT IF WE GIVE AWAY OR RIGHTS TO THE TYRRANISTS- THE ATTACK WILL PROBALBY HAPPEN ANYWAY.

ROFLMAO - 4 YEARS OF FUKKIN PROOF THAT WHINING SACK OF SHIT LIBERAL IS WRONG -

AND HE HAS THE GODDAMNED IDIOCY TO SMART OFF LIKE THAT.

AND HIS STUPID SHITFACED FRIEND GIVE HIM ACCOLADES FOR IT.

YOU PIECE OF SHIT LIBERALS ARE PATHETIC.


HEY DUMBASS- IF YOUR FRIEND WAS SERIOUS - HE WOULD HAVE SAID THIS :

" WE BETTER THINK REAL HARD ABOUT DESTROYING THIS SECRET WIRETAPPING, BECAUSE WE HAVEN'T BEEN ATTACKED IN OVER FOR YEARS, SO IT MIGHT HAVE BEEN WORKING "


" THE BROOKLYN BRIDGE WOULD BE DOWN RIGHT NOW, AND THAT NUKE PLANT IN NEW HAMPSHIRE WOULD HAVE 100,000 HUMANS IRRADIATED, AND WE DON'T KNOW WHAT ELSE "

BUT NO- JUST SMART ASS ARROGANT SMARMY LYING SACKS OF SHIT, WITHOUT A GODDAMNED OUNCE OF APPRECIATION.

YOU'RE BOTH PATHETIC JERKOFFS.

I NOTE SMART ASS 57 BROKE HIS OWN RULE-
" I SAID I WOULDNT REPLY TO CHRIS AGAIN , BUT HERE GOES "

THOSE FUCKING LIBS ARE ALWAYS COMPULSIVE GODDAMNED LIARS.

EVERY FUCKING TIME.

Posted by: SilioconDoc | January 4, 2006 12:30 AM

Hey Will,

WHY ARE YOU TRYING TO PICK CHRIS FORD'S BRAIN FOR A SOLUTION?
_______________________________________
WILL
"What oversight do you suggest?
...EITHER national security OR civil liberties.
Let's start discussing ways to ensure the infinite lifespan of both."
______________________________________

I KNOW WHY YOU'RE TRYING TO PICK HIS BRAIN, BECAUSE HE'S A WELL INFORMED HISTORIAN AND EXPERT ON THIS TOPIC.

THE REASON YOU ASK HIM- IS BECAUSE YOU KNOW THAT HE'S A FUCKING GENIUS, AND YOU HAVE SOME KIND OF INNER HOPE THAT HE HAS A FUCKING SOLUTION. THAT'S WHY YOU'RE BEGGING HIM TO DO ALL THE THINKING- AND JUST LAY OUT THE ANSWER TO YOU !

WELL WILL, I WOULDN'T FUCKING ANSWER YOU, YOU KNOW WHY ? BECAUSE YOU'RE A FUCKING IDIOT, AND SMART ALECK.

SAME GODDAMNED TIME YOU BEG HIM FOR ANSWER, YOU PLAY LIKE YOU DON'T KNOW HIS POSITION, AS I POINTED OUT ABOVE.

HEY FUCKING WILL----

"national security OR civil liberties."
"Let's start discussing ways to ensure the infinite lifespan of both."

OK WILL- HERE'S THE FUCKING ROOM- YOU START DISCUSSING HOW TO SAVE BOTH, INSTEAD OF BEGGING YOUR OPPONENT FOR ANSWERS YOU HAVE NEVER EVEN ATTEMPTED TO PROVIDE!


_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________


THERE WILL- THERES SOME LINES FOR YOU.

YOU GODDAMNED LEFT WING FUCKHEADS REALLY MAKE ME SICK.

Posted by: Silicondoc | January 4, 2006 12:40 AM

Silocondoc-

Wow, not only are you a stupid fascist, you are so unversed in basic netiquette that you scream your blather in all caps.

Go fuck yourself, too, you little punk - I figure you should since no one else is willing to. Al Hamilton and Tom Jefferson never agreed on much, but I bet they'd agree that you're a sorry excuse for an American.

Oh, and Chris Ford is an expert on nothing. I'd be willing to try picking his brain if I thought I could find it in the platitudes, malaprops, and outright lies.

I hope you enjoy our descent into the decline of the American empire - Roman style - heaven knows it's dupes like you that are greasing the skids.

Posted by: Mr. X | January 4, 2006 04:16 AM

"I'll take my chances with Al Queda over an imperial Presidente any day of the week.
Simple as that."
Posted by: Mr. X | Jan 3, 2006 12:28:56 PM

SIMPLETON

Another lying sack of left wing shit.
Why am I not surprised ?
How does Baluchistan look nowadays pinhead?
Better than the University of W ?
ROFLMAO

"I hope you enjoy our descent into the decline of the American empire - Roman style - heaven knows it's dupes like you that are greasing the skids."

All the dissent you can muster for 770 more years of the millennial reign. Hell knows more dudes will grease your skids, doggie style. Enjoy the rider.

Posted by: SiliconDoc | January 4, 2006 05:27 AM

***Note from Emily***

(The vast majority of my fellow Debaters have no need whatsoever for the following reminder.)

Mostly this message is for SiliconDoc, who has added nothing of value to this debate with his rhetorical spasms, abundant in curse words but lacking any substance ... but it also goes for anyone else who would stoop to his level:

Knock it off!

Ad hominem attacks have no place in what should be an intelligent, logical debate. (For those unfamiliar with basic Latin, the definition of ad hominem can be found here: http://dictionary.reference.com/search?q=ad+hominem )

Flinging mindless insults only betrays the insulter's lack of solid reasoning. There are so many compelling arguments on both sides of this issue that there is really no excuse for resorting to verbal abuse of those who disagree with your position.

If you don't have anything constructive to add to the Debate, please refrain from commenting. (In case I haven't been clear enough: name calling, gratuitous use of profanity, and suggesting various methods of self-fornication do NOT qualify as constructive.)

Let's keep it civil, shall we? Many thanks.

Posted by: Emily Messner | January 4, 2006 12:51 PM

SiloconDoc-

Live in Seattle? Care to have an old-fashioned Zell Miller style discussion about this?

Go fuck yourself, you Nazi wannabe.

Sorry to the other posters on this board for the incivility but, you know what, our burgeoning police state is not something people can or should be polite about.

Posted by: Mr. X | January 4, 2006 12:56 PM

SiliconDoc-

I ask Chris Ford for suggestions often. I've admitted that he has presented compelling defenses of positions I otherwise wouldn't support until hearing his side. He brought me around on some issues relating to torture. I think he is as well informed an individual on this message board as anyone. Yes, I want to know his opinion because I value it, irregardless of if he values mine.

Here is a suggestion you so demanded:

If FISA's requirements are too restrictive because the President needs to data mine lots of information from lots of people who may or may not be involved with terrorists, I suggest he makes that case to not just the head FISC judge, but to the remaining 9. They can hammer out the legal validity of this approach behind closed doors.

2 scenarios occur from that: 1) They decide that the President's actions are unconstitutional and prohibt him from doing so. His office appeals to the Supreme Court and we get a definitive answer.
2) They approve (or the Supreme Court consequently approves) of the warrantless wiretaps because they represent a national security priority and because the warrant requirement is too restrictive. The President, with the NSA and the DoJ, then explain their methods of mining data including things like what words are used, what mediums of communication are intercepted, what kinds of things can lead to prosecution as a result, etc. The FISC, or some other named judicial body with similar appointment rules, is briefed IN ITS ENTIRETY along with the SIC regularly on the process by the NSA, the DoJ who have to justify their maneuvers retroactively if necessary.

I have said it in the past. Chris Ford is more informed than I am. I ask him for solutions because I fear his solutions might be better thought out than mine. There is one, above, that seems to suggest at least a higher level of oversight then currently enjoyed. Because I just threw it out in the past 30 minutes, please feel free to critique that approach so we can fix it.

Posted by: Will | January 4, 2006 02:51 PM

SiliconDoc: I don't think you really expect or deserve an honest response to your opinions(?), hate(?), bathroom wall scrawl(?), but something I had to comment on... you referenced a President who has kept us safe for 4+ years? I'm sorry, that's like me saying I haven't impregenated my girlfriend in over 6 months. Some things are a 1 strike not 3, standard to judge. And the worst terrorist attack on our nations' shores under his watch? That's hardly a reccommendation for security.

Posted by: Matthew | January 4, 2006 03:12 PM

Hey Matthew -
The man was in office less than 8 months when 9/11 happened. I think that blame falls on the Administration before him unless you think Bin Laden began planning 9/11 after Bush was elected. If you believe that, then you obviously don't know shit.

Posted by: | January 4, 2006 03:51 PM

Well, maybe you're right; maybe I'm being naive; maybe terrorist plans take 3, 4, 5, years to plan, develop, and execute. Hmmm... oh wait... if that's true, then Bush hasn't protected us at all. Because it will only be now that any plans made during his administration come to fruition. And the person that has successfully protected us for the last 4+ years has been Clinton!

Sorry: this is like ice cream on a cone or in a bowl... you can't have it both ways.

Posted by: Matthew | January 4, 2006 04:21 PM

***Note from Emily***
Posted by: Emily Messner | Jan 4, 2006 12:51:26 PM
(The vast majority of my fellow Debaters have no need whatsoever for the following reminder.)
" Mostly this message is for SiliconDoc "

Yes, I knew you would chime in, if it really is you, since I openly criticized your link to " Declaration of War ", pointing out it is merely an anti-war piece, by fellow liberals.

" who has added nothing of value to this debate with his rhetorical spasms, "

Well, that is your liberal opinion. In fact, it is an insult, and does not reflect the real record, even as I pointed out above, apparently you missed the deconstruction of your "Declare War" link.

You could have said correctly, "did not add to the debate politely" , and been correct, if you added that many others did not add politely as well.

But of course, you aren't up to being honest.

It appears you aren't above the very problem you attempt to address.

"abundant in curse words but lacking any substance ..."

I see. Another opinion, much like the other left wing attackers, who use that argument nine times out of ten against Chris, lacking any substance.
After he goes about citing fact after fact and analysis and history, we see the post of the left attacker, saying what you just said about me.
Need I name them for you ?


It would have been reasonable if you asked for no swearing, and no personal attacks, and pointed out toward me for swearing, but even you aren't capable of maintaining a reasonable response along a fair and equitable line, and have failed by adding your own opinion of no substance, which of course is not correct.

" but it also goes for anyone else who would stoop to his level: "

I find it interesting, that you fail to say it goes for anyone else that "has" stooped to his level. So, is my level the cutoff point ? No, it obvoiusly is not, as per the rest of your text.

Apparently you missed Mr.X

You definitely missed others as well.

So, are you satisfied attacking "mainly me", and giving your own false opinion on what substance I added ( none you claimed), effectively committing yourself to the same attack others have been issuing, which has caused the ruckus to begin with?

" Knock it off! "

Well, I agree with you in principle, except that you have done something quite similar.

" Ad hominem attacks have no place in what should be an intelligent, logical debate. "

Yes, but almost all have engaged in it, perhaps everyone, even if many used pretty words to do it, thereby hoping it would never be reprimanded, or could pass for civility, which it is NOT.

(For those unfamiliar with basic Latin, the definition of ad hominem can be found here: http://dictionary.reference.com/search?q=ad+hominem )

" Flinging mindless insults only betrays the insulter's lack of solid reasoning. "

No, that isn't true at all ( unless the qualification of "mindless" applies the ideation of judgement, whereby an insult has no basis).
Many solid reasoners are also capable of flinging insults, and do.

If that is not the case, we have zero reasonable people on the planet.

One could say correctly however, that if all you are doing is slinging insults, then you haven't presented a reasoned argument as well.
Untrue, however, is the oft said lie, that insults issued negates the entire other body of reason and points that may in fact accompany them.
IN FACT, that is the often used LIE, by a responder who cannot engage points made, and merely focuses on AN insult contained within points and arguments instead.

" There are so many compelling arguments on both sides of this issue that there is really no excuse for resorting to verbal abuse of those who disagree with your position. "

That I can almost agree with. But if it were true, then why does the often disguised as pretty language verbal abuse occur with frequency ?
The answer is, that sometimes people are flat out mistaken, sometimes they lie, and sometimes they are so far off base facts that others become frustrated.
Quite often, they relate false assumptions, that are candied up with exhorbitant language, in order to preclude a response that is disdainful and contains and insult factor, even though, one can surely admit, that type of candied up rhetoric indeed angers or delights, depending on ones position.
That is an honest assessment.

So, as far as excuses for resorting to verbal abuse, there are plenty, and they are very real.

That's why they occur.

" If you don't have anything constructive to add to the Debate, please refrain from commenting. "

"(In case I haven't been clear enough: name calling, gratuitous use of profanity, and suggesting various methods of self-fornication do NOT qualify as constructive.)"

Oh good, let's hope name calling includes that includes fascist, right wing hack, nazi, McCarthyite , Fox news parrot, Rush Limbaugh listener, and the constant drone that the other commenter " said absolutely nothing ".

Let's keep it civil, shall we? Many thanks.
Posted by: Emily Messner | Jan 4, 2006 12:51:26 PM

Ok, I'll be very glad to keep it civil.
I will also point out when I am attacked, or when others I support are attacked, especially when it's candied up insults couched in " purportedly acceptable " language.

Posted by: Silicondoc | January 4, 2006 05:00 PM

Posted by: Matthew | Jan 4, 2006 3:12:01 PM "
"SiliconDoc: I don't think you really expect or deserve an honest response to your opinions(?), hate(?), bathroom wall scrawl(?),"

I refer you to:
"***Note from Emily***
"Ad hominem attacks have no place in what should be an intelligent, logical debate. (For those unfamiliar with basic Latin, the definition of ad hominem can be found here: http://dictionary.reference.com/search?q=ad+hominem ) -
DEFINITION : " Appealing to personal considerations rather than to logic or reason: Debaters should avoid ad hominem arguments that question their opponents' motives.
"

Matthew, I do expect an honest response. In fact I expect honesty from the start. I also now expect to not be attacked.

" but something I had to comment on... you referenced a President who has kept us safe for 4+ years? "

Yes, good, since you noticed substance amongst my cursings. Thanks, that means you don't agree with the false assessment I was subject to either.
Thank you again for noticing.

" I'm sorry, that's like me saying I haven't impregenated my girlfriend in over 6 months.
Some things are a 1 strike not 3, standard to judge. And the worst terrorist attack on our nations' shores under his watch? That's hardly a reccommendation for security. "

Well, you can surely be disappointed about 911 and Bush' failure up till then , but that doesn't negate Bush' successful successful stifling of attacks since then, which you should very much appreciate, and hope to keep successful going forward. Taking away any security activities that have brought 4 years of continuous success, could be very dangerous, and that includes taking away warrantless NSA tapping.

We are discussing security measures implemented post 911, and therefore, I argued, that those measures have in fact kept us safe since then, noting in particular, the very thing so many like the poster I was replying to decry, the warrantless NSA program, may in fact be WHY we haven't been attacked AGAIN, for four years.
Indeed, it has been reported it was the initiating factor in disrupting the Brooklyn Bridge terrrorist whom is in custody and has confessed.

So, I hope you understand, when someone argues that we will "give away" our rights wih this warrantless tapping ( forgetting that supposed right is already gone, and has been for 4 years), and then further argues that even after giving away that right, an attack will probably hit anyway, is clearly ignoring the ACTUAL RECORD.

1. The "right" was "taken" after 911,(warrantless NSA tapping )
2. We haven't been hit since then, and it has helped prevent at least 1 known attack, perhaps many others.
3. The warrantless tapping wasn't in use before 911, and therefore, never had a chance to prevent 911, which it *might* have.

So, to say that we will likely get hit even though we give away this right, is flat out flying in the face of reality.

Yes, it angered me.

Posted by: SiliconDoc | January 4, 2006 05:29 PM

SiliconDoc-

While I certainly shouldn't speak for patriot, I will attempt to. My apologies to patriot if I get this wrong.

I think the point patriot wanted to make was not that eliminating the NSA warrantless taps is irrelevant to safety, but rather that an insistence on safety, at some point, among reasonable people, is going to interfere with other relevant concerns. For example, it would be safer for all Americans if the President banned automobile use and forced us all to walk. Not only would we avoid the tens of thousands of annual auto deaths, but we would be healthier from the excercise. In the interests of safety alone it makes sense for the President to ban motorcycles.

Contrarily, it doesn't make sense for the President to ban non-warrant personal searches at airports since they are a) completely voluntary and b) vital to the security of passengers.

For some people the line in the sand is drawn at different places. Some people, like you, place a higher emphasis on the government and are willing to trust that same government more to behave responsibly than others.

Though patriot may disagree with you, and though patriot may be an evil liberal henchman plotting your demise in his/her basement, I think that everyone on this board, from the dumbest peon liberals like me to the wisest grand poombas like you and Chris should be able to offer opinions without being called, among other things:

GODDAMNED LEFT WING FUCKHEADS
FUCKING IDIOT, AND SMART ALECK
PIECE OF SHIT - SMARMY AS A VILE SACK OF WET SHIT ON HOT ENCLOSED SUN PORCH
PIECE OF SHIT LIBERALS ARE PATHETIC
So on and so forth.

You may disagree. But according to Ms. Messner, and since this is her blog, you are not welcome to continue your unhinged rants. Not according to me, because I quite enjoy them, but according to her.

Posted by: Will | January 4, 2006 05:46 PM

Posted by: Will | Jan 4, 2006 5:46:11 PM "

"without being called, among other things:
GODDAMNED LEFT WING FUCKHEADS
FUCKING IDIOT, AND SMART ALECK
PIECE OF SHIT - SMARMY AS A VILE SACK OF WET SHIT ON HOT ENCLOSED SUN PORCH
PIECE OF SHIT LIBERALS ARE PATHETIC
So on and so forth.
Posted by: Will | Jan 4, 2006 5:46:11 PM "

I refer you to the stated policy, and would appreciate you stopping your attack on me immediately .

Since you engaged in the attack, after clearly seeing the stated policy, I will not reply to your points in the rest of your response to me.

If you would like to ask again without the attack, that's fine, I will be glad to respond.

""***Note from Emily***
"Ad hominem attacks have no place in what should be an intelligent, logical debate. (For those unfamiliar with basic Latin, the definition of ad hominem can be found here: http://dictionary.reference.com/search?q=ad+hominem ) -
DEFINITION : " Appealing to personal considerations rather than to logic or reason: Debaters should avoid ad hominem arguments that question their opponents' motives.
"

Posted by: SiliconDoc | January 4, 2006 06:32 PM

Are you done violating the stated policy Will ?

It does apply to you as well, as Messner clearly stated.

Are you done attacking me ?

Posted by: SiliconDoc | January 4, 2006 06:42 PM

Emily Messner :

You see, after you stated the policy, chatters have attacked me, even directly after your post.

1.Mr. X
then
2. Matthew
then
3. Will

I would appreciate it if these three chatters stopped their personal attacks, and complied with the policy stated by Emily Messner.

If, of course, these chatters and others fail to comply with the policy now stated, there is no reason for the policy.

I see Will has decided he would attack me specifically to try to provoke a reaction.

Emily I would appreciate it, if you would remind these three chatters above, that they should not be not be engaging in attacks on me now, after you set the rules in the thread.

If you intend to just let people keep attacking, while referrencing former attacks as reasons to do so, then the policy means nothing.

Posted by: SiliconDoc | January 4, 2006 06:58 PM

SiliconDoc-

We needn't let this dissolve to silliness. I was directly quoting naughty words you had used against other posters (though mostly just me). I did not attack you in my post, I've been insanely civil towards you throughout this "discussion". Sometimes I am sarcastic, all apologies. But deferentially referring to you as a grand poomba and mucking myself as a peon, sarcastically, can hardly be considered an "attack". Especially since I included both groups under the umbrella of "INDIVIDUALS DESERVING OF NOT BEING CALLED WET SHIT STAINS". At the very least I applied that social pleasentry categorically even to those who have, in the past, failed to return the favor.

You and I have unfinished business however that is unrelated to what Ms. Messner said. We've been exchanging posts in this thread and others for quite some time now, and I think as a matter of respect my posts are as deserving of responses as anyone else. If you are done responding to my posts man up and say so, but do it unqualifiably. Do not say you are done because I attack you, especially when I have done no such thing.

I think I have shown a level of restraint above and beyond what is called for in this situation. If you disagree, cite something specific. You quoting me quoting you does not constitute evidence that I "attacked" you.

Posted by: Will | January 4, 2006 06:58 PM

Posted by: Will | Jan 4, 2006 6:58:57 PM

Will, Emily Messner stated the policy, then you took a jab, based on my former behavior, even after you read my response to Emily that I would comply, and saw that I did, when I responded to Matthew.

I will reply if you repost your response to me you made "for patriot" without the attack on me included.

I think that's fair.

Posted by: SiliconDoc | January 4, 2006 07:25 PM

If you look at the times, you'll see my last occurred five minutes after Ms Messner posted hers. In fact, I had not yet read her post while composing mine, though I seem to have been of a like mind regarding civility and such.

That said, you're still a would-be Nazi.

Posted by: Mr. X | January 4, 2006 07:29 PM

Posted by: patriot 1957 | Dec 30, 2005 6:47:15 PM

"But you can't convince me that a small cabal of men can secretly wiretap with no oversight and no regulations. But, you say, its OK because its only to protect us from terrorists! "

That certainly is a very strange statement, after we've seen (R) Curt Weldon's investigation into Able-Danger, where a secret, highly classified, data mining project, carried out by the Military Industrial Complex, that identiifed Mohammed Atta long before 911, was TOTALLY DELETED ON THE ORDERS OF AN INTERNAL LAWYER, WITH ABSOLUTELY NO OVERSIGHT WHATSOEVER, BECAUSE IT MAY HAVE CONTAINED PUBLIC REFERRENCES TO US CITZENS.

Yes, right there we have a CURRENT EXAMPLE on the SAME TYPE TOPIC, that absolutely beyond any shadow of a doubt proves patriot 1957 DEFINITIVELY INCORRECT !


"This is what will make us safe from terrorists? "

ONCE AGAIN YES IN FACT IT HAS STOPPED 2 MAJOR PLOTS KNOWN PUBLICLY. THE BROOKLYN BRIDGE DOWNING AND A PLANE THAT TERRORISTS PLANNED TO FLY STRAIGHT INTO A NEW HAMPSHIRE NUCLEAR PLANT.

"This adminstration has utterly failed to protect our ports and borders,"

PORTS NO, borders, from illegals entering, ok.

" our chemical and nuclear plants, "

WRONG! NO SUCCESSFUL ATTACKS.

"our economy, "

WRONG! 10 QUARTERS OF CONTINUED GROWTH AT APPROX. 4%

"our energy supply/needs,"

I will say that the democrats keep blocking every energy source, recently ANWR, for 30 years nuclear plant building, curently new natural gas tapping in Illinois, Colocarado, Utah, Wyoming, and other, and even the demcorats have blocked major new wind power electric supplies,like the one blocked by the Kennedy's off the east coast, because it "spoils" their hundred million dollar compound view.

Republicans keep fighting for more enegry- and would make us self-sufficent on our own enegry, but the democrats keep fillibustering and blocking, it's all on the congressional record, and cannot be disputed.

" our reputation "
Democrats and their left have put down the USA since Vietnam when Jane Fonda and John Kerry fought for the enemy. They haven't stopped for over 30 years.
The DEMOCRATS, not the Great President Bush, have soiled our worldwide reputation for over 30 YEARS STRAIGHT, many times with outright patenly false LIES.

"and most everything else on the 9-11 commission list."

Well, perhaps there are some things on the 911 commission list that aren't done. however we have not been attacked, and that counts for more than some dumb list that never considered ABLE _DANGER because the demorat Jamie Gorelick blocked it and banned it from the commission, then lied by calling Curt weldon and eclaiming, " I didn't do anything wrong! "

" Yet we are supposed to say that the terrorists knowing we can tap phones is supposed to make us less safe "

Osama abandoned his phone once it was leaked we were tapping it.
Expect similar things here, where the terrorists will adjust and use new and different tactics.
It may have set us back so far, that attacks can now get through.

" and the person who told is a traitor? "

ABSOLUTELY, and they NEED TO ROT IN PRISON FOR OVER 20 YEARS ( the weak, feckless, undeterring, bad way to handle it ), OR BE EXECUTED IMMEDIATELY FOR TREASON UPON CAPTURE.( the way to set the rules clearly to partisan hack traitors who don't care about the USA at all )


"And now, because of Bush's treason, guilty men may go free. "

WRONG. The brooklyn bridge bomber ALREADY CONFESSED, DID A PLEA DEAL, AND RATTED OUT THE REST OF OUR ENEMIES HE KNEW.
He has zero chance of being released over this. NONE.

" Yes, its galling when criminals go free because of a technicality. "

I agree. That's why I can't stand all the left wing groups that have relentlessly pressured about Gitmo detainees, CLAIMING THEY ARE INNOCENT. Hundreds have been released because of it, and many of those have been caught ENGAGING IN TERROR PLOTS OVERSEAS SINCE THEN.

" It is better that ten guilty persons escape than that one innocent suffer. "

This is why dangerous little catch phrases should not be used for assesing actions in a war.


"A lot of blood has been shed by very brave people over the past 230 years to defend that cliche, our way of life. "

And, of course, more blood can be shed in one moment than all those 230 years, from the flash of an Al Qaeda detonated nuclear bomb, that occurs because inapplicable cliche's are used as a ruse for real security.


"I believe that when they understand the facts - that they might have a choice between living in tyrrany or dying from a terrorist attack, are willing to take their chances with the terrorists rather than the tyrranists."

I guess, with enough convinced, we can all find out how many hundreds of thousands of deaths thats brings to our soil.

"Given this administration's utter failure to protect our glarlingly obvious weak links, the attack is likely to happen even if we do surrender our liberty to the tyrranists. "

LOL - you have 3 more years to pray you are correct. We already have 4 years of no more attacks. It appears, by simple math, the odds are already against you.

I must say, it really doesn't matter what someone thinks is wide open. If the terrorists are picked up before they can establish, they fail.

If they are not, and successfully ignite a nuclear bomb in one or more of our major cities, all the blocking the civil liberties people have done in the name of multi-culturalism, ethnic fairness, and anti muslim fanatic discrimination will get the blame.

Posted by: SiliconDoc | January 4, 2006 09:34 PM

Just as a general comment for those who are arguing about whether Bush's policies have protected us or not:

It's a basic principle of logic that "post hoc" does not equal "propter hoc", that is, temporal correlation does _not_ equal causation. If I wear red socks on one day, and it rains, and the next day I wear yellow socks and it doesn't, I'm not justified in thinking that wearing red socks makes it rain, or wearing yellow socks prevents it. I would have to show _how_ wearing a particular color of sock affected the weather, before I could conclude that the one had affected the other. That's not a partisan assertion; it's just logic.

So, _both_ of the following are unfair without supporting evidence:

1) Bush was president and we got 9-11. Clinton was president and we didn't. So Clinton did a better job of protecting us.

2) In the last four years of implementing Bush's policies of espionage and invasion, we haven't had another 9-11. Therefore, Bush's policies have prevented another 9-11.

The first argument could be made by a Democrat, the second by a Republican. But both are illegitimate without supporting evidence. In both cases, one would have to show what the president did, then what effect those acts had, and then make a logical connection to the prevention of terrorists' efforts. And for it to be a conclusive argument, the connection would have to be more than just theoretical. (e.g. it's not enough to say, "We've been spying on their communications without warrants and that made it easier for us to figure out what they were plotting." You'd also have to show how spying in a particular case revealed a plot, and how that spying couldn't have been achieved if a warrant had been required.)

Anyway, just my two cents. Best wishes to you all. I wish I had more time to post.

Posted by: Beren | January 5, 2006 12:43 AM

Posted by: Beren | Jan 5, 2006 12:43:26 AM

" ...wearing red socks makes it rain, or wearing yellow socks prevents it.
That's not a partisan assertion; it's just logic."

I agree, just like voting for the USA in the red states, and voting against it in the yellow states, isn't partisan, it's freedom.


" So, _both_ of the following are unfair without supporting evidence:
1) Bush was president and we got 9-11. Clinton was president and we didn't. So Clinton did a better job of protecting us."

Well, that certainly is unfair, since we had our "first 911" on February 26th, 1993 under CLINTON.
Six full floors of one of the WTC were blown to smithereens, 1500 AMERICAN CITIZENS WERE INJURED, AND 6 WERE DEAD.
That was under Clinton's watch.
We all remember how the one tower nearly toppled onto the other, or do we?
When people say we didn't have 911 on Clinton's watch, it's pretty clear to me they aren't thinking at all, and are quite unwilling to display a measure of honesty.

" Therefore, Bush's policies have prevented another 9-11. "

Well, they have indeed. We have reports of that. Even Clinton said so, during his hour long interview a couple of months ago, something along the lines of : " More attacks have been prevented since I left office ".

One can easily surmise that the new procedures of warrantless taps have worked, as has been reported. You ask for proof that if those for instance weren't implemented, the Brooklyn Bridge bomber could still have been caught.
Unfortunately, that is near impossible to prove under any no secrets scenario, and any attempt would likely expose sources and methods.
It's left up to guesswork, in the end, and one has to weigh heavily those who have access to the information, and their statements concerning those successes.
Those statements, along with Clinton's about more plots stopped, settles it in favor of the excellent policies Bush has implemented.

I understand former Presidents have access to certain US govenment information, and one can be reasonably certain Clinton makes wide use of that, given his wifes coming run, and his worshipped leadership position in the democrat party. It's a good way to pass information along to your party's side, no doubt.
Maybe there should be an investigation into that, to see if Clinton has been breaking any secrecy laws there. That could certainly endanger us, as we don't know how many Sandy Bergers there are in the democrat party.
Perhaps Bill Clinton is the leaker, someone should check into that.

Posted by: SiliconDoc | January 5, 2006 06:53 AM

BEREN
"you talk about the damage that the leak of NSA surveillance has done. But let's be logical for a moment:"

Ok, let's be logical. Let's also be aware of the FACTS, and not make statements that are false assumptions.

" the terrorists _already_ knew that the NSA could spy on them if it got a FISA warrant,"

Ok, we can agree that's reasonable. In order to get a FISA warrant, there MUST be evidence that the one to be tapped is likely, in this case, engaging in terrorist activity/support.
Since the legal arms of the Justice Deptartment are well of aware of the procedure since 1978 - they known exactly what is allowed and isn't - almost to perfection, since we know only one request was recently withdrawn- before being resubmited in modified form so it could pass. Only a small number of the whole has modifications. Since they aren't going to waste resources presenting warrants that cannot pass, most, one could say all, of them do.

" and that FISA warrants were very seldom denied. "

Yes, because of course, IT IS KNOWN WHAT PASSES AND WHAT DOSN'T, FROM NEARLY 30 YEARS OF THE SAME THING.

" Given that, they must have assumed that the NSA might be spying on them anyway. "

Certainly, ones that have been caught, and released, fall under that category.

" Knowing that the administration could do it without a warrant wouldn't suddenly make them secure their communications - "

LOL - STOP RIGHT THERE! YOU HAVE NOW MADE AN ASSUMPTION THAT IS WHOLLY INCORRECT.

HERE IS EXACTLY WHY :

The FISA requires certain standards to be met, and basically one MUST have prior evidence against a suspect.

THAT LEAVES ALL NEW RECRUITS OF AL QAEDA COMPLETELY OUT OF THE PICTURE.
IF IN FACT THIS BUSH WAR ON TERROR HAS DRIVEN HORDES TO THE HANDS OF BIN LADEN, THEN IN FACT EVERY ONE OF THOSE PEOPLE HAVE ZERO EVIDENCE ON THEM WE CAN USE TO OBTAIN A FISA WARRANT AND TAP THEM.

WITH ZERO EVIDENCE, YOU HAVE ZERO POSSIBILITY OF BEING A TARGET OF A FISA WARRANT.

THIS MY FRIEND, IS THE SEA OF BRAND NEW TERRORISTS THE LEFT TOLD US OVER AND OVER AGAIN HAVE BEEN

"CREATED "

THE BIG SEA THAT FISA CANNOT TOUCH.

_____________________________________

So, now that the "workaround" has been bled to the public, and even more, no doubt will bleed out over the course of the next weeks and months-

ALL OF AL QAEDA'S NEW RECRUITS ARE ON NOTICE.

" that's really an absurd claim if you think about it. Or do you disagree? "

You have seen my IMMENSE disagreement.

SIMPLE LOGICAL CONSTRUCTS WITH THE FACTS WE HAVE PRESENTED ARE ALL THAT IS NEEDED TO CONCLUDE BEYOND A SHADOW OF A DOUBT.

Once again, knowing the FACTS, makes a DIFFERENCE, IF YOU ARE GOING TO USE LOGIC.

One had hoped that a person "giving a logic lesson" , would also USE THEIR OWN POLICY.

I await ANY rebuttal in this matter, as I am CERTAIN there is NONE.

Posted by: Silicondoc | January 5, 2006 07:24 AM

"Many millions of dollars have been waisted on "security" measures that are not worth the investment and are often a pork project of some Senator or Congressman. Let's have this debate openly and honestly.
Posted by: Mike M | Jan 3, 2006 12:16:20 PM "

Hi Mike, excellent points in your friendly reply, glad you're in the debate.

One musn't forget that sometimes excellent security projects aren't porky, but are SCRAPPED, because of some INCORRECTLY APPLIED lawyerly dictum about " protecting the privacy rights of the citizens of the USA ".

SEE > ABLE - DANGER !

A top secret, data mining project, using pulbic sources, identified Mohammed Atta - and his terror cell, long before 911 occurred!
"Privacy concerns" got this data, ALL ACQUIRED FROM PUBLIC SOURCES, DELETED.

Watch the videos and see for yourself !
WITNESSES GAGGED ! OBSTRUCTION AND DESTRUCTION OF CARREER PERSONNEL !

http://qtmonster.typepad.com/qt_monsters_place/2005/09/able_danger_vid.html

JAMIE GORELICK BLOCKS FROM 911 COMMISSION INFORMATION, SILENCING THE EMBARRASSING TRUTH !

Watch the truth, in the hearings in congress

http://www.c-span.org/Search/basic.asp?BasicQueryText=WELDON&SortBy=date

Time to start putting those blocking the protection of the USA in PRISON, where they belong !

We have our LESSONS, and now is NO TIME to start repeating former mistakes !

JAMIE GORELICKS WALL DICTATES TO FISA - THEIR POST 911 STANCES !

"On May 17, 2002, the FISA court was itself taken to court by the Bush administration for trying to retain the Gorelick Wall barring the sharing of intelligence data with law enforcement efforts.

The Department of Justice has moved this Court [FISA] to vacate the minimization and "wall" procedures in all cases now or ever before the Court, including this Court's adoption of the Attorney General's July 1995 intelligence sharing procedures, which are not consistent with new intelligence sharing procedures submitted for approval with this motion. "

http://strata-sphere.com/blog/index.php/archives/1103


Again and again we find, that the CLINTON APOINTED ATTOURNEY GENERAL SHOULD BE ROTTING IN JAIL FOR HER CONTINUED OBSTRCUTION OF JUSTICE of ATTAINING THE TRUTH ABOUT 911 AND WHOM BLEW IT.
HER VILE POLICIES THAT ALLOWED 911 TO OCCUR, NEED TO BE ABSOLUTELY CRUSHED, AND THROWING HER IN THE SLAMMER IS A GOOD WAY TO ALLOW THAT TO OCCUR.

I CALL FOR A JUSTICE DEPARTMENT INVESTIGATION INTO JAMIE GORELICKS UNAMERICAN ACTIVITIES, her obstruction of justice, her failure to recuse herself from the 911 commission, and her continued pressure to support her policies that LET 911 OCCUR !

Get her behind bars now, before it's too late !

Posted by: SiliconDoc | January 5, 2006 07:53 AM

"...you talk about the damage that the leak of NSA surveillance has done. But let's be logical for a moment: the terrorists _already_ knew that the NSA could spy on them if it got a FISA warrant, and that FISA warrants were very seldom denied. Given that, they must have assumed that the NSA might be spying on them anyway. Knowing that the administration could do it without a warrant wouldn't suddenly make them secure their communications - that's really an absurd claim if you think about it. Or do you disagree? "

WELL LET'S DO A SIMPLE NUMERICAL ANALYSIS TO PROVE YOU ABSOLUTELY WRONG BEYOND A SHADOW OF A DOUBT !

THERE IS MORE THAN ONE WAY TO SKIN A CAT, WITH LOGICAL EMPIRICAL CONSTRUCTS !

What is one of the greatest assets of Al Qaeda when it comes to FISA warrants ?

A. The PUBLIC database that shows the numbers issued !

http://www.epic.org/privacy/wiretap/stats/fisa_stats.html

Let's take the year 2002, AFTER 911.

PRESENTED : 1228 , APPROVED : 1228 , REJECTED : 0
______________________________________

Al Qaeda KNOWS, that at most 1228 wiretaps have been issued. If they are ALL against Al Qaeda (highly unlikely) then Al Qaeda KNOWS that only 1228 of it's agents are at risk !

How many Al Qaeda assets were reportedly trained in the 90's under Clinton's watch at Al qaeda training camps in Afghanistan ?

A> 20,000

By simple math we SEE Al Qaeda has a large NUMERICAL ADVANTAGE over the issued FISA WARRANTS.

LET'S USE ANOTHER commonly KNOWN number.

The cia's terrorist list !
That list is reported at :

A. 60,000 ! SIXTY THOUSAND

So, is 60,000 more than 1228 FISA warrants ?

One can EASILY ASK :

Why weren't 60,000 FISA warrants issued IMMEDIATELY AFTER 911 ! ?

WHOM CAN TELL ME THESE FISA WARRANTS ISSUED IN FACT DO COVER THE 60,000 CIA TERRORIST BY COVERING MULTIPLE PEOPLE PER WARRANT ?

ANYONE ?

WHO CAN TELL ME THEY COVER THE 20,000 TRAINED AL QAEDA IN AFGHANISTAN UNDER CLINTON'S WATCH ! ?

ANYONE ?

Posted by: SiliconDoc | January 5, 2006 08:16 AM

Interesting article.

http://www.commsdesign.com/news/insights/showArticle.jhtml?articleID=175700256

**********************************
The NSA does not wiretap. The global electronic network it manages, nicknamed Echelon, comprises satellites, high-frequency direction-finding antennas and microwave interception dishes, located in orbit and in critical locations on the ground, in the sea and in the air. The network operates continuously, in real-time, collecting everything it can, but analyzing very little of what it collects.


When pundits talk of NSA domestic "collection," some may picture a magical force field surrounding this country, where all interception equipment is automatically shut down inside the borders. Not so. Domestic "broadband test" bases regularly scoop up communications as part of Echelon. The difference in the post-FISA era is that such information must never be stored, shared with law enforcement or used in other ways. By all accounts, the NSA has tried to abide by that.


President Bush, then, asked the agency to keep and analyze specific domestic-to-international communications that already could be collected -- no new bases, no new "wiretaps." While the always-on nature of Echelon could inspire some paranoia, concern can be tempered by understanding that the agency has had neither the storage capacity nor the human-analysis staff to examine more than a tiny percentage of the take.


Critics of Bush's specific actions should stop talking of wiretapping and propose specific limits to the way in which the NSA interacts with FISA and law enforcement agencies.
***************************************

Posted by: SiliconDoc | January 5, 2006 08:38 AM

Beren, nice logic reminder on the distinction between correlation and cauasation.

SiliconDoc, thanks so much for continuing to post in caps and screes. It makes it so much easier to quickly identify and skip over your posts.

Posted by: Matthew | January 5, 2006 12:20 PM

SiliconDoc is still a Nazi.

Posted by: Mr. X | January 5, 2006 12:51 PM

SiliconDoc,

Well, since you insisted on it, here's a partial reply to your post about the damage from the leak.

I said that since terrorists have to have assumed already that they might be being monitored, they would already have done what they could to secure their communications. Thus, this leak would not make them take precautions that they weren't already taking. In response, you wrote:

===========================================
"LOL - STOP RIGHT THERE! YOU HAVE NOW MADE AN ASSUMPTION THAT IS WHOLLY INCORRECT.

"HERE IS EXACTLY WHY :

"The FISA requires certain standards to be met, and basically one MUST have prior evidence against a suspect.

"THAT LEAVES ALL NEW RECRUITS OF AL QAEDA COMPLETELY OUT OF THE PICTURE. IF IN FACT THIS BUSH WAR ON TERROR HAS DRIVEN HORDES TO THE HANDS OF BIN LADEN, THEN IN FACT EVERY ONE OF THOSE PEOPLE HAVE ZERO EVIDENCE ON THEM WE CAN USE TO OBTAIN A FISA WARRANT AND TAP THEM.

"WITH ZERO EVIDENCE, YOU HAVE ZERO POSSIBILITY OF BEING A TARGET OF A FISA WARRANT.

"THIS MY FRIEND, IS THE SEA OF BRAND NEW TERRORISTS THE LEFT TOLD US OVER AND OVER AGAIN HAVE BEEN 'CREATED '

"THE BIG SEA THAT FISA CANNOT TOUCH."
===========================================

To this the response is that no terrorist knows for sure what information the government has or doesn't have on him. They don't know what information the government may have gathered from captured colleagues, they don't know what information the government may have acquired from overseas intercepts mentioning them, they don't know what information the government may have on them based on infiltration of their own cells. The life of a terrorist is (probably) a pretty paranoid one.

Actually, I was under the impression (any legal minds here care to correct me?) that though the FISA court required some sort of evidence, the bar that had to be met was lower than 'probable cause' as it is interpreted for domestic legal purposes. But regardless of what the bar is, in a terrorist cell there would always be fear that the government had been able to convince the FISA court that it needed to monitor a certain set of conversations between a and b (half way around the world, maybe). Then on the basis of that monitoring, it convinced FISA that it needed to monitor a set of conversations between b and c. And so on, until one of the people being monitored is one of your own contacts. You would never know whether that had happened or not, so you would always be afraid that it had and that you were being watched.

Not just a terrorist, but really any member of organized crime, or even any common criminal should, if he is smart, and not one of those hapless souls who leaves his ID in the convenience store he has robbed, always assume that he might be being watched or eavesdropped upon.

Do you honestly think that if you were associated with an international terrorist group, and plotting and planning to blow up a chemical plant or something, and trying to acquire all the expertise, technical information, equipment and people that you needed to do it, after all that effort, you wouldn't secure your communications to the very best of your ability??

In another post, you write the following on the same issue:

===========================================
"Al Qaeda KNOWS, that at most 1228 wiretaps have been issued. If they are ALL against Al Qaeda (highly unlikely) then Al Qaeda KNOWS that only 1228 of it's agents are at risk!

"How many Al Qaeda assets were reportedly trained in the 90's under Clinton's watch at Al qaeda training camps in Afghanistan ?

"20,000

"By simple math we SEE Al Qaeda has a large NUMERICAL ADVANTAGE over the issued FISA WARRANTS.

"LET'S USE ANOTHER commonly KNOWN number.

"The cia's terrorist list !
"That list is reported at :

"A. 60,000 ! SIXTY THOUSAND

"So, is 60,000 more than 1228 FISA warrants?

"One can EASILY ASK :

"Why weren't 60,000 FISA warrants issued IMMEDIATELY AFTER 911 ! ?

"WHOM CAN TELL ME THESE FISA WARRANTS ISSUED IN FACT DO COVER THE 60,000 CIA TERRORIST BY COVERING MULTIPLE PEOPLE PER WARRANT ?

"ANYONE ?

"WHO CAN TELL ME THEY COVER THE 20,000 TRAINED AL QAEDA IN AFGHANISTAN UNDER CLINTON'S WATCH !?"
===========================================

Okay, some problems with this analysis. First, the President doesn't need FISA warrants to monitor and wiretap the overseas communications of non-US-citizens. Your analysis, matching the number of FISA warrants with the number of Al-Qaeda terrorists trained in Afghanistan and other places seems to assume that all of those terrorists are either in the US or in communication with people who are. But you don't really think that, do you?

And even if we assumed that all those terrorists _were_ in the US, still the number of FISA warrants would be, mathematically, enough to make them as cautious as they could be, even before they knew about warrantless domestic spying. Say that about 600 of those 1228 FISA warrants are for use against terrorists. And say (which is very far from the truth) that all of those 60,000 terrorists on what you refer to as 'the CIA list' (what list is that, btw?) were either here in the US, or in communication with people in the US. As each of those FISA warrants covers conversations between two people, that would work out to something around a 2% chance that you were under FISA surveillance if you were a terrorist.

But, of course, that 2% chance would hold for your communications with each of your colleagues, and each of their communications, and so on. So that actually, the chance would be quite significant that you or someone you knew was being monitored. And if you were a terrorist, you'd take that possibility very seriously and take all the precautions against it that you could. After all, the likelihood, even given your numbers, that you're being spied on if you're a terrorist, is _much_ higher than the likelihood, if you're an American, of being killed by a terrorist (9/11 killed about 1/1000th of a percent of Americans). And yet you still (rightly) view that small risk as something to take precautions over. Wouldn't terrorists also take precautions against being spied upon, given the much higher likelihood that would exist (even given your numbers) that they were being spied upon? Wouldn't they already do all that they could to secure their communications?

Ultimately the facts are:
1. They always knew they could be being spied on. They just didn't know whether they were.

2. Now, they know that it's more likely that they're being spied on, though they still don't know whether they are or not.

Given those two facts, how much is it reasonable to conclude the leak altered the behavior of the terrorists?

Finally, as a sidenote, when posting online, using all-caps is the equivalent of shouting. If you wouldn't shout these comments at people face-to-face, you shouldn't use all-caps.

Thanks for your thoughts.

Posted by: Beren | January 5, 2006 02:16 PM

Noting the poster that replied has no idea what the 60,000 CIA terrorist list is, i'm not surprised I keep knocking my head against the wall.
Intellect is nice, but KNOWLEDGE is even better, especially in this discussion.

Once again, BIN LADEN HIMSELF WAS USING A CELLPHONE LONG AFTER THE UNITED STATES OF AMERICA WAS AFTER HIM - WHEN IT WAS LEAKED - THAT HE WAS BEING TRACKED ON THAT PHONE- THE PHONE IMMEDIATELY WENT DEAD AND HE MOVED TO ANOTHER METHOD.

YOU CAN TELL THIS TO A LIBERAL TILL YOU ARE BLEW IN THE FACE, AND THEY STILL DON'T GET IT.

THEY MAKE FALSE ASSUMPTIONS THAT FLY IN THE FACE OF RECENT HISTORY.

THEY IGNORE MASSES OF EVIDENCE AND DON'T EVEN HAVE A RUNNING HISTORY OF NEWS IN THE WAR ON TERROR.

THEY DON'T LIKE CAPS EITHER- THEY ALWAYS HAVE SOME COMPLAINT.

PEOPLE WOULDN'T HAVE TO SHOUT IF THEY ACTUALLY KNEW ANYTHING, AND ACTUALLY ACKNOWLEDGED TTHEY DON'T KNOW SOMETHING AS BASIC AS BIN LADEN GOING OFF THE LINE ONCE IT WAS PUBLICLY REVEALED BY A NEWS ORG HE WAS BEING TAPPED.

THEY HAVE NO DAMNED IDEA.

THEY THINK EVERYTHING BUSH SAYS IS A LIE SO THEY WILL NEVER INVESTIGATE THE FACTS.

THEY THINK THE TERRORISTS HOWEVER, ARE GENIUSES, AND HAVE LORD KNOWS WHAT KIND OF SPECIAL INVISIBLE GOAT HIDE TO COMMUNICATE WITH.

THEY THINK THAT ALL THE THOUSANDS OF BRAND NEW RECRUITS THEY SHRIEK BUSH DROVE TO AL QAEDA ALL HAVE A CIS AND NSA FILEBOOK ON THEM ALL HANDY AND READY TO CLEAR THE FISA HURDLES.

THEY AREGUE EVERY LIE THEY CAN THINK OF, IGNORING EVEN THIER OWN YEARS LONG WHINES LIKE BRAND NEW RECRUITS DRIVEN TO THE BUSHMONKEY AS THEY CALL HIM.

THEN THEY STILL WONDER WHY SOMEONE YELLS.

IFWE ASSUME TERRRORISTSARE SMART- THEN WE ASSUME THEY REALIZE WHAT THE FISA PROCEDURES ARE AND ACT ACCORDINGLY.

THEY GET A BASE WITHOUT INDICATIVE TIES- WHICH OF COURSE MEANS A CLEAN ONE- WHICH THE LIBS HAVE SHRIEKED IS MASSIVELY AVAILABLE. I GUESS THE LIBS WERE REALLY LYING THEIR BUTTINSKI'S OFF BECAUSE ITS JUST NOT CONVENIENT NOW.

THEY ALSO WERE TOLD OF THE BROOKLYN BRIDGE BOMBER AND ANOTHER CAUGHT BY THIS WARRANTLESS BYPASS- BUT THEY STILL ARGUE AGAINST THAT - AND PRETEND NOONE HAS TYPED IT TO THEM TEN THOUSAND TIMES.

IT REALLY IS MADDENING.

THEY WONDER WHY ANYONE WOULD FIND THEM NOT UP TO PAR ON THE FACTS.

ONCE AGAIN, IS IT IMPOSSIBLE FOR AL QAEDA TO GET A CLEAN RECRUIT ?

OH IT IS ?

OK THEN THE WAR ON TERROR IS OVER!

FISA DOESN'T ALLOW TAPPING CLEANS

AL QAEDA KNOWS THIS- FISA INFO IS PUBLICLY AVAIALABLE ON THE NET- ITS IN BOOKS EVERYWHERE - ITS ALL OVER CONSPIRACY WEBSITES AND HAS BEEN FOREVER.

SO AL QAEDA DOES WHAT'S "PRUDENT" - THEY TAKE ADVANTAGE OF TECHNOLOGY- KNOWING HOW TO AVOID CAPTURE THROUGH FISA, BECAUSE WE WILL ASSUME THEY DO HAVE A BRAIN- AS THE LIB ARGUES - BUT PRETENDS THEY ARE IGNORANT AND ASSUME EVERYTHING IS A RISK.

IN WARFARE YOU ASSES YOUR RISKS- AND WHEN YOU FIND FISA LEABES ROOM- YOU TAKE ADVANTAGE OF THAT.

THAT'S HOW SOME GOT CAUGHT- WITHOUT FISA- BECAUSE THEY WERE OBVIOUSLY USING SOMETHING FISA COULD NOT GET THEM WITH.

YOU HAVE THESE PERSONS POINTED OUT.

YOU HAVE THE BIN LADEN ONE POINTED OUT.

YOU CAN KEEP PRETENDING YOU DON'T - BUT YOU DO.

THEREFORE- YOUR LIB ASSUMPTIONS DO NOT APPLY.

YOUR RUDIMENTARY GUESSES THAT IGNORE KNOWN EVIDENCE AND FACTS ON THE TABLE DO NOT QUALIFY.

IF YOU CULL 1228 FISA DOWN TO 600 - YOU STILL HAVE A PROBLEM - THAT LEAVES A LARGE PORTION OF 20,000 AND ALL THOSE NEW RECRUITS OUT OF THE FISA LOOP.

AL QAEDA KNOWS THIS- BUT LIBERALS DON'T.

I HOPE YOU ENJOYED MY CAPS.

ENJOY THEM, FEEL PLEASURE WHEN YOU COMPLAIN.

Posted by: Silicondoc | January 5, 2006 02:51 PM

Now now ErrinF, I thought you had reformed.
Its like smoking...tough to kick the habit isn't it? :o)
Posted by: Cayambe

LMAO!
Posted by: johnnyg in NE DC | Jan 3, 2006 10:10:46 PM

Care to elaborate, Cayambe? Reformed from what and what did I do to break that reform? Instead I get a snide, blank accusation.
And, johnnyg, GMAFB, please. Do you even debate any more? It seems the only time I see you post these days is in some sort of childish reaction to me or something said about me. Even then, you don't actually contribute anything to the Debate topic. Way to hold an immature grudge, dude. Didn't know I had irked you so, but obviously I did. : )

Posted by: ErrinF | January 5, 2006 04:24 PM

SiliconDoc,

Okay, I guess you want to shout. I'll intersperse my responses to your comments.

You write:
============================================
Noting the poster that replied has no idea what the 60,000 CIA terrorist list is, i'm not surprised I keep knocking my head against the wall.
Intellect is nice, but KNOWLEDGE is even better, especially in this discussion.
===========================================

In which case, could you share your knowledge, please, in response to a polite question? What list is that? The only "60,000 terrorist" list I know about was compiled by INR (part of State Dept.), as far as I know. Of course the CIA cooperated, as did lots of other agencies. Is that the list that you're referring to? I ask because that list takes a rather broad definition of 'terrorist'. It's a list designed to identify "persons of concern" that shouldn't be allowed to enter the country. (Incidentally, the assumption behind the list is that at least a large number of the people on the list are currently overseas where, unless they're US citizens, the president could always spy on them without FISA anyway. So if this is the list that you're referring to, it rather undercuts your point in comparing 60,000 terrorists to 1228 FISA warrants.)

You also reference the Bin-Laden cell phone story and write:
============================================
"YOU CAN TELL THIS TO A LIBERAL TILL YOU ARE BLEW IN THE FACE, AND THEY STILL DON'T GET IT.

"THEY MAKE FALSE ASSUMPTIONS THAT FLY IN THE FACE OF RECENT HISTORY.

"THEY IGNORE MASSES OF EVIDENCE AND DON'T EVEN HAVE A RUNNING HISTORY OF NEWS IN THE WAR ON TERROR."
===========================================

Perhaps you could point out those 'false assumptions', and explain how they 'fly in the face of recent history', and you could cite the 'masses of evidence' that these liberals are ignoring. Then you'd refute them.

I did know about the Bin-Laden satellite-phone story. But it has nothing to do with the FISA leak. The Bin-Laden leak was a leak that revealed new _techniques_. (I.e. the claim is that Bin-Laden didn't know that we could monitor his satellite phone, and when he found out that we knew how to, he stopped using it.) The FISA leak, on the other hand, was not about some new technological capability, but about things happening without warrants.

A parallel would be (and it sounds absurd because it is) if Bin-Laden _knew_ that we had the technology and knowledge to monitor his satellite phone, and knew that we might have obtained a secret warrant to do it (assuming, ex hypothesi, that he was in the US or talking with US citizens, or in some other situation in which a FISA warrant would be required), but he still, incredibly, went on using his satellite phone. Then it was revealed that we were spying on phones (as he always knew we could) without warrants, so then he decided to stop using his phone. It's not very plausible, and it's equally implausible that a terrorist wouldn't already have taken all the precautions that he could before he knew about warrantless spying.

Then you write:
===========================================
"THEY DON'T LIKE CAPS EITHER- THEY ALWAYS HAVE SOME COMPLAINT."
===========================================

It's not a complaint. I just thought it was possible that you didn't know what the netiquette was for using caps. I thought that maybe you didn't realize that people thought you were shouting at everyone, and didn't realize that that was contributing to people's angry responses to you. But if you did realize it and it's just how you want to act, that's fine. It's none of my business. But if you're posting because you want people to read what you write, you'd have better luck not writing in caps.

You also write:
===========================================
"PEOPLE WOULDN'T HAVE TO SHOUT IF THEY ACTUALLY KNEW ANYTHING, AND ACTUALLY ACKNOWLEDGED TTHEY DON'T KNOW SOMETHING AS BASIC AS BIN LADEN GOING OFF THE LINE ONCE IT WAS PUBLICLY REVEALED BY A NEWS ORG HE WAS BEING TAPPED."
===========================================

Are you sure you want to say this? Or do 'they' and 'people' in the first line refer to different sets of people? At any rate, I did know about the story. But as I said above, it's a very different case. The point was that Bin-Laden didn't know we had the technology and the information necessary to track his satellite phone. If he had known that, he wouldn't have used it, no matter how many warrants our laws required for monitoring his calls.

Later, you write:
===========================================
"THEY THINK THE TERRORISTS HOWEVER, ARE GENIUSES, AND HAVE LORD KNOWS WHAT KIND OF SPECIAL INVISIBLE GOAT HIDE TO COMMUNICATE WITH."
===========================================

I don't know if you're including me in the 'they' or not. If so, I don't think the terrorists are geniuses. I do think that some of them are smart (enough to evade our detection so far, despite warrantless spying, right?), and probably most of them are pretty careful.

I'm afraid I must admit to never having heard of the "Special Invisible Goat Hide" (S.I.G.H.). I do know, though, that there are several comparatively easy techniques for hiding communications that anyone could use with a bit of organization or training, that would be very difficult to track. And what I was saying was that those terrorists not fortunate enough to have S.I.G.H.'s would already be using those techniques, since they knew that they could be being spied on under the FISA statute. (And if they were overseas, as most of them are, they already knew that they could be spied on without FISA.)

Then you write:
===========================================
"THEY THINK THAT ALL THE THOUSANDS OF BRAND NEW RECRUITS THEY SHRIEK BUSH DROVE TO AL QAEDA ALL HAVE A CIS AND NSA FILEBOOK ON THEM ALL HANDY AND READY TO CLEAR THE FISA HURDLES."
===========================================

Well most of those recruits would be overseas, wouldn't they? Where they already knew they could be spied on without FISA, right? So they would already be as careful as they could, right?

You later write:
===========================================
"THEY ALSO WERE TOLD OF THE BROOKLYN BRIDGE BOMBER AND ANOTHER CAUGHT BY THIS WARRANTLESS BYPASS- BUT THEY STILL ARGUE AGAINST THAT - AND PRETEND NOONE HAS TYPED IT TO THEM TEN THOUSAND TIMES."
===========================================

I don't pretend it's not true. I say that if there was something wrong with the FISA statute, and Bush needed broader authority, he should have asked for it from Congress. And a system that provided for meaningful oversight of what he needed to do could have been put in place.

I also say, that even if terrorists were plotting to blow up a bridge that I travel on daily (I don't live anywhere near NYC), as a citizen of this country I say that if the only two choices an executive that can spy on any citizen whenever it wants to without any meaningful review and oversight, or the risk that I get blown up by a bomb, then I choose the latter. It's my reponsibility as a citizen of a free republic to take that risk. There are plenty of countries in the world that a person can live in, if he wants to put security first. This is supposed to be where you go if you want to put civil freedom first.

Then you write:
===========================================
"ONCE AGAIN, IS IT IMPOSSIBLE FOR AL QAEDA TO GET A CLEAN RECRUIT ?

"OH IT IS ?

"OK THEN THE WAR ON TERROR IS OVER!

"FISA DOESN'T ALLOW TAPPING CLEANS."
===========================================

This is where the tradecraft of espionage and counterintelligence comes in. There are lots things that intelligence services can do to try to catch 'cleans'. In particular, it's difficult for someone to be completely 'clean'.

But yes, I acknowledge that if a US citizen suddenly decides, with a friend of his, that he wants to be a terrorist, and he doesn't communicate with or make any contact with, Al-Qaeda operatives or any other terrorists, then it's very difficult to catch him. Always has been (cf. McVeigh). That is, simply put, one of the risks of life. We do what we can to stop it. But we recognize that we can't do everything.

Btw, (legal scholars can correct me here), it doesn't seem to me that the original Authorization for the Use of Force, on which the executive has based one of its claims for the authority to do this surveillance, even applies to completely and totally 'clean' recruits, if they're so clean that they're not actually 'recruits' but homegrown 'lone wolf' style terrorists. That's because the authorization for the use of force wasn't a blanket declaration of war against any and all terrorists that existed or might ever exist in the country. It authorized the president to use force against the organizations and people responsible for 9-11 and the countries, people, and organizations that helped or harbored them. A lone-wolf terrorist now wouldn't fit into that category, would he?

Then you write:
===========================================
"AL QAEDA KNOWS THIS- FISA INFO IS PUBLICLY AVAIALABLE ON THE NET- ITS IN BOOKS EVERYWHERE - ITS ALL OVER CONSPIRACY WEBSITES AND HAS BEEN FOREVER.

"SO AL QAEDA DOES WHAT'S 'PRUDENT' - THEY TAKE ADVANTAGE OF TECHNOLOGY- KNOWING HOW TO AVOID CAPTURE THROUGH FISA, BECAUSE WE WILL ASSUME THEY DO HAVE A BRAIN- AS THE LIB ARGUES - BUT PRETENDS THEY ARE IGNORANT AND ASSUME EVERYTHING IS A RISK.

"IN WARFARE YOU ASSES[S] YOUR RISKS- AND WHEN YOU FIND FISA LEABES ROOM- YOU TAKE ADVANTAGE OF THAT.

"THAT'S HOW SOME GOT CAUGHT- WITHOUT FISA- BECAUSE THEY WERE OBVIOUSLY USING SOMETHING FISA COULD NOT GET THEM WITH."
===========================================

You can really drop the "as the lib argues" stuff unless you just enjoy it (in which case, I wish you lots of fun with it). I'm not a liberal, unless someone who has voted for more Republicans than Democrats is a liberal.

It's a logical error to say, without supporting evidence, "when we ignored FISA we caught a terrorist, therefore we couldn't have caught the terrorist with FISA." You have to show a causal connection, or describe the situation in such a way that makes clear why ignoring FISA was the only way that the terrorist would be caught.

But I will agree with you that of course, it's easier to capture terrorists if we scrap FISA. But that, by itself, doesn't prove that we should. It would also be easier to capture terrorists if we put cameras on every corner and in every buildilng. It would also be easier to catch them if we restrcited freedom of movement between states. And there are other, even more extreme measures that we could take that would make it easier to catch terrorists. But we don't do those things, because, as in also risk-assessments, we weigh the pros and cons, and decide that it's not worth it. To scrap FISA and put nothing in its place means that the executive can, whenever it wants, spy on all US citizens. It's really kind of naive to think that that wouldn't over time be abused. And if it were abused the damage would be tremendous.

Finally, you write, in response to my attempt to do some math with your figures:
===========================================
"YOUR RUDIMENTARY GUESSES THAT IGNORE KNOWN EVIDENCE AND FACTS ON THE TABLE DO NOT QUALIFY.

"IF YOU CULL 1228 FISA DOWN TO 600 - YOU STILL HAVE A PROBLEM - THAT LEAVES A LARGE PORTION OF 20,000 AND ALL THOSE NEW RECRUITS OUT OF THE FISA LOOP."
===========================================

Perhaps you could tell me which known facts my rudimentary guesses were ignoring, and show me how. I was working with the figures that you offered, and I slanted the calculations in your favor, really (I mean, to assume for argument's sake that of those 60,000 terrorists, all were in the US and therefore potentially subject to FISA was a giant concession).

I can't follow what math you're doing in the second paragraph. Where do you get the '20,000' figure?

Thanks for your thoughts.

Posted by: Beren | January 5, 2006 04:42 PM

Also, my belated apologies to everyone for having posted such a long reply.

Best wishes to all.

Posted by: Beren | January 5, 2006 04:45 PM

It makes it so much easier to quickly identify and skip over your posts.

Posted by: Matthew | Jan 5, 2006 12:20:52 PM
"

You need to skip my posts, because you cannot withstand the rebuttals to you.

There is no doubt about it.

SO SKIP AWAY FELLA !

OTHERS WILL READ THEM, AND SEE YOU EXPOSED.

Posted by: SiliconDoc | January 5, 2006 04:45 PM

Beren,

You have so little knowledge, and continue to argue points repeatedly that I have covered three or four times in this thread already, that it is no longer neccessary to respond.

I will give you a few tips, though.

Use google:

Look into:

VISA program in Saudi Arabia
(This should give you information that alights your mind to the possiblility of infiltration, even with cleans, which you argue are not possible, and somehow think our government has every terrorist in the world tracked. It is of course an insane argument you make, but that doesn't stop it. You insanely say the government can infiltrate- and get that new info.
The already FISA taps, CANNOT ISSUE NEW TAPS WHEN YOU CAN'T LISTEN TO THE OTHER END.

Realities are, very much different than perfect "many other methods" ideations.
It's really no use talking to people like you. So many things that are patently absurb are offered as arguemnts.
I frankly am sick to death of it on this topic.
If the Saudi Visa program doesn't trip your trigger, look to the southern border your left buds love to whine about.

Then you offer the also insane ideation that capturing the Brooklyn bomber by Bush fisa bypass, is not any good because it doesn't prove fisa couldn't have done the same thing.

Yet you know, from all the other massive discussions on the subject, that one of the reasons fisa was bypassed to begin with is because it COULD NOT ISSUE THE WARRANT TO TRACK THE BROOKLYN BOMBER.

It is AMAZINGLY HUGE FLAWS IN LOGIC, like the one I just pointed out, that are repeated dozens of times, that drive ME TO POSTING IN ALL CAPS FOR THE LOVE OF GOD !

I'M CLOSE TO INSANE NOW, OK ? ARE YOU HAPPY ?

I JUST WONDER HOW MANY GODDAMNED TIMES A PERSON HAS TO ISSUE A SIMPLE POINT, THAT IS IRREFUTABLE BY THE BASIC FACTS RELEASED, AND THEN THE OTHER GUY GOES BACK INTO SOME INSANE MODE LIKE THEY NEVER KNEW IT- FORGOT IT, LEFT IT SOMEWHERE IN THEIR BUSH HATE BOOK, OR GOD KNOWS WHAT !

I'M DONE BEREN, I'M NOT GOING OVER THE OTHER THINGS.

YOU CANNOT EVEN CONCEDE ON THE BROOKLYN BOMBER, BUT THEN, WHAT THE @#$% DO I EXPECT, HONESTY ?

I'M SURE YOU ALREADY FORGOT THE POINT ON BBB.

FORGET IT- JUST FORGET IT MAN.

FORGET IT.

Posted by: SiliconDoc | January 5, 2006 05:21 PM

"At any rate, I did know about the story. But as I said above, it's a very different case. The point was that Bin-Laden didn't know we had the technology and the information necessary to track his satellite phone. If he had known that, he wouldn't have used it, no matter how many warrants our laws required for monitoring his calls."

Well, you suddenly know all about it, and know what bin laden knew- from some sainted Mr spoon mind meld with him, huh,instantly achieved. It's absolutely amazing.


"The point was that Bin-Laden didn't know we had the technology and the information necessary to track his satellite phone. If he had known that, he wouldn't have used it"

AND NOW THE TERRORISTS KNOW WE WILL USE THE TECHNOLOGY TO TRACK THEM. JUST LIKE BIN LADEN FOUND OUT- NOW THE TERRORISTS FOUND OUT.

ALL THE TERRORISTS THAT ARE AMERICAN CITIZENS HAVE BEEN PUT ON NOTICE,AND ANY AMERICAN CITIZENS SUPPORTING THE TERRORISTS, OUT OF 2 MILLION MUSLIMS ATTENDING AMERICAN MOSQUES- ETC...

BUT LIBS TELL US - THEY KNEW THAT ALREADY.

BUT BIN LADEN DIDNT KNOW IT.

ITS A NEVER ENDING !@#@##%%^.

BIN LADEN DIDNT KNOW IT.

BUT ALL THE TERRORISTS NOW DID.

ROFLMAO

ITS A NEVER ENDING &^@# JOB.

GOODBYE ! GOODBYE !

HAVE A NICE DAY !

Posted by: SiliconDoc | January 5, 2006 05:38 PM

Posted by: Impeach Bush | Jan 1, 2006 9:29:47 AM
"How much must we let this American Idiot get away with. IMPEACH HIM NOW!!!!

Well,... since you asked how much :

Clinton: 47 individuals with the Clinton administration were convicted of or pleaded guilty to crimes with 33 of these occurring during the Clinton administration itself. There were in addition 61 indictments or misdemeanor charges. 14 persons were imprisoned.

- Number of Starr-Ray investigation convictions or guilty pleas (including one governor, one associate attorney general and two Clinton business partners): 14
- Number of Clinton Cabinet members who came under criminal investigation: 5

- Number of indictments/misdemeanor charges: 61
- Number of congressional witnesses who have pleaded the Fifth Amendment, fled the country to avoid testifying, or (in the case of foreign witnesses) refused to be interviewed: 122

-- Guilty pleas and convictions obtained by Donald Smaltz in cases involving charges of bribery and fraud against former Clinton Agriculture Secretary Mike Espy and associated individuals and businesses: 15
- Fines and penalties assessed: $11.5 million
- Amount Tyson Food paid in fines and court costs: $6 million

Clinton Administration crimes outline- Convictions- Drug trafficking (3), racketeering, extortion, bribery (4), tax evasion, kickbacks, embezzlement (2), fraud (12), conspiracy (5), fraudulent loans, illegal gifts (1), illegal campaign contributions (5), money laundering (6), perjury, obstruction of justice.

Number of times that Clinton figures who testified in court or before Congress said that they didn't remember, didn't know, or something similar.

Bill Kennedy 116
Harold Ickes 148
Ricki Seidman 160
Bruce Lindsey 161
Bill Burton 191
Mark Gearan 221
Mack McLarty 233
Neil Egglseston 250
Hillary Clinton 250
John Podesta 264
Jennifer O'Connor 343
Dwight Holton 348
Patsy Thomasson 420
Jeff Eller 697

LOL- wow and I thought Reagan's alzheimers was bad, but Clinton is worse!

In the portions of President Clinton's Jan. 17 deposition that have been made public in the Paula Jones case, his memory failed him 267 times. This is a list of his answers and how many times he gave each one.

I don't remember - 71
I don't know - 62
I'm not sure - 17
I have no idea - 10
I don't believe so - 9
I don't recall - 8
I don't think so - 8
I don't have any specific recollection - 6
I have no recollection - 4
Not to my knowledge - 4
I just don't remember - 4
I don't believe - 4
I have no specific recollection - 3
I might have - 3
I don't have any recollection of that - 2 I don't have a specific memory - 2
I don't have any memory of that - 2
I just can't say - 2
I have no direct knowledge of that - 2
I don't have any idea - 2
Not that I recall - 2
I don't believe I did - 2
I can't remember - 2
I can't say - 2
I do not remember doing so - 2
Not that I remember - 2
I'm not aware - 1
I honestly don't know - 1
I don't believe that I did - 1
I'm fairly sure - 1
I have no other recollection - 1
I'm not positive - 1
I certainly don't think so - 1
I don't really remember - 1
I would have no way of remembering that - 1
That's what I believe happened - 1
To my knowledge, no - 1
To the best of my knowledge - 1
To the best of my memory - 1
I honestly don't recall - 1
I honestly don't remember - 1
That's all I know - 1
I don't have an independent recollection of that - 1
I don't actually have an independent memory of that - 1
As far as I know - 1
I don't believe I ever did that - 1
That's all I know about that - 1
I'm just not sure - 1
Nothing that I remember - 1
I simply don't know - 1
I would have no idea - 1
I don't know anything about that - 1
I don't have any direct knowledge of that - 1
I just don't know - 1
I really don't know - 1
I can't deny that, I just -- I have no memory of that at all - 1

I'm afraid we have a ways to go.

Here's what happened to the Democrats under Clinton, based on our latest figures:

- GOP seats gained in House since Clinton became president: 48
- GOP seats gained in Senate since Clinton became president: 8
- GOP governorships gained since Clinton became president: 11
- GOP state legislative seats gained since Clinton became president: 1,254
as of 1998
- State legislatures taken over by GOP since Clinton became president: 9
- Democrat officeholders who have become Republicans since Clinton became
president: 439 as of 1998

YOU'LL BE WAITING QUITE SOME TIME YET.

SLICK WILLIE CLINTON WAS IMPEACHED, BUT NOT REMOVED. YOU HAVE A LONG LONG LIST OF FITZGERALD STYLE WORK TO MATCH UP ON BEFORE WE REACH SIMILAR CRITICAL MASS.

I SUGGEST HIRING 300 INDEPENDENT PROSECUTORS AND HAVING THEM DO A CRASH SCHEDULE FOR THE NEXT 3 YEARS, YOU MIGHT CATCH UP THAT WAY.

Posted by: SiliconDoc | January 6, 2006 07:17 AM

The New York Times may be in very big trouble !

"The New York Times reporters who broke the "Spygate" story...and the paper's top executives ...face criminal indictment by the Justice Department -

With a full-blown Justice Department investigation now underway, Harvey Silvergate tells the Boston Phoenix: "A variety of federal statutes, from the Espionage Act on down, give Bush ample means to prosecute the Times reporters who got the scoop, James Risen and Eric Lichtblau."

Even Executive Editor Bill Keller and Publisher Arthur 'Pinch' Sulzberger Jr., could become targets," he predicts.
Silvergate says he's amazed that the prospect of criminal prosecution hasn't generated more controversy, especially since "such an indictment could be brought in short order."

(Not surprising, no big wail on it, equals suppression, which of course they hope makes it go away, or they can claim it's merely an attack to cover up for Justice)

The mere publication of the Times story on Dec. 16 could be considered a crime, he warns, and charges could be filed even before the DOJ probe ferrets out the identity of the leakers.

(WHAT ARE THEY WAITING FOR ! FILE THE CHARGES!)

" To be sure, Silvergate is no fan of the Bush administration - and says the Times was right to blow the lid off the secret surveillance program. "

Oh, let's hope Silvergate is 100% CLEO on this one !

Posted by: SiliconDoc | January 6, 2006 08:15 AM

LOL - Makes me wonder if Abramoff is connected to everyone, or if they all do the same thing, and Abramoff is merely an unlucky scapegoat.

Washington can brim with confidence after they pretend they've cleared up the money lobby beast by striking down Abramoff ! LOL

"News of Mrs. Clinton's Abramoff connection comes the same day that her 2000 Senate campaign acknowledged it violated Federal Election Commission regulations by hiding hundreds of thousands of dollars in campaign cash given by Hollywood mogul Peter Paul. "

CRIPES!

WASHINGTON - One of Sen. Hillary Clinton's fund-raising committees will admit it failed to disclose $722,000 in contributions from a felon and pay a $35,000 fine, according to a settlement released yesterday.
The deal stems from a high-powered Los Angeles fund-raiser the New York Democrat held Aug. 12, 2000. The event also has sparked a failed federal prosecution of a campaign official and a lawsuit by the contributor, three-time convict and entrepreneur, Peter Paul.

http://www.nydailynews.com/news/regional/story/380452p-323063c.html

I'm starting to think they're all criminals. Next thing you know we'll hear Abramoff lobbied for the NSA spy equipment company.

How the heck do you forget $722,000.00 ?

Posted by: SiliconDoc | January 6, 2006 08:25 AM

The mainstream U.S. media outlets have failed to report a major terrorist plot against the U.S. - because it would tend to support President Bush's use of NSA domestic surveillance, according to media watchdog groups.

News of a planned attack masterminded by three Algerians operating out of Italy was widely reported outside the U.S., but went virtually unreported in the American media.

Italian authorities recently announced that they had used wiretaps to uncover the conspiracy to conduct a series of major attacks inside the U.S.

Italian Interior Minister Giuseppe Pisanu said the planned attacks would have targeted stadiums, ships and railway stations, and the terrorists' goal, he said, was to exceed the devastation caused by 9/11.


Italian authorities arrested Bouhrama on November 15 and he remains in prison. Authorities later arrested two other men, Achour Rabah and Tartaq Sami...

So, the left press covers up again to attack Bush.
LOL

It's at our peril friends !

Italy did the domestic tapping, and saved our skins !

Will we save our own ?

""U.S. terror attacks foiled," read the headline in England's Sunday Times. In France, a headline from Agence France Presse proclaimed, "Three Algerians arrested in Italy over plot targeting U.S."

Curiously, what was deemed worthy of a worldwide media blitz abroad was virtually ignored by the U.S. media, and conservative media watchdog groups are saying that is no accident.

http://www.newsmax.com/archives/ic/2006/1/5/101649.shtml?s=et

"My impression is that the major media want to use the NSA story to try and impeach the president," says Cliff Kincaid, editor of the Accuracy in Media Report published by the grassroots Accuracy in Media organization.

"If you remind people that terrorists actually are planning to kill us, that tends to support the case made by President Bush. They will ignore any issue that shows that this kind of [wiretapping] tactic can work in the war on terror.""

LOL - Wow.

I guess even the dreaded FoxNews blew it !

Posted by: SiliconDoc | January 6, 2006 09:22 AM

Can you imagine the learning that would happen here if so many were not caught up in Chris Ford's racist diatribes. Many, including myself, get caught up in responding to his postings, to his name calling, and lack of respect for the majority of the population.
Political discussions, with opinions from many directions, and belief systems should be what this is all about. Not reading the rantings of a Neo Nazi wannabe. No one should be insulted for the shell they inhabit, whatever colour that may be, by a man who cannot even recognize the culture or country of their origin. Name calling we should leave to children, they will learn. Chris never did.
I am a true believer that someone should speak up for others when they are maligned, due to race or religion. Not because I am Lefty (as Mr. Label maker likes to call those who disagree with him) but because I am human. This man, who calls himself Christian is a well of hate, is he a Taliban Christian style fundamentalist? Whatever he is, is disgusting and hateful and people should not have to be exposed to him if he refuses to control his hate impulses.

Posted by: SpeakoutforDemocracy | January 6, 2006 11:09 AM

I'd like to congratulate Chris Ford for his excellent, informative, knowledgeable, fact filled, empirically constructed argumentations. I see he is likely a history major, or at least has pol.sci. credentials. All can learn from him.
When you're that good, people notice.

Posted by: SpeakoutforDemocracy | Jan 6, 2006 11:09:44 AM

"Can you imagine the learning that would happen here if so many were not caught up in Chris Ford's...
"up in responding to his postings, to his name calling,"
LOL- YOURS BELOW,YES ?
"Neo Nazi wannabe"
"man who cannot even recognize the culture or country of their origin. Name calling we should leave to children, they will learn"
LOL - YOU JUST CALLED "Neo Nazi wannabe"

I refer you to Emily Messner's policy

Knock it off!

Ad hominem attacks have no place in what should be an intelligent, logical debate. (For those unfamiliar with basic Latin, the definition of ad hominem can be found here: http://dictionary.reference.com/search?q=ad+hominem )

Flinging mindless insults only betrays the insulter's lack of solid reasoning. There are so many compelling arguments on both sides of this issue that there is really no excuse for resorting to verbal abuse of those who disagree with your position.

If you don't have anything constructive to add to the Debate, please refrain from commenting. (In case I haven't been clear enough: name calling, gratuitous use of profanity, and suggesting various methods of self-fornication do NOT qualify as constructive.)

Let's keep it civil, shall we? Many thanks.

Posted by: SiliconDoc | January 6, 2006 01:11 PM

Civil, sure - but you're still a Nazi.

Posted by: Mr. X | January 6, 2006 01:27 PM

SiliconDoc I find it interesting that you have no problem with Chris Ford's racist, homophobic comments to others based on the the superficiality of their appearance. No mention from you so all I can assume is that you are ok with the attacks on strangers because of their colour or lifestyle, but you just can't stand anyone confronting Chris.Pretty twisted logic.
It's ok for Chris to deny the Holocaust, to call people ragheads, attacks on Jews, Muslims, blacks. That is all ok.
I'm sorry SiliconDoc your logic is twisted. I have no respect for your ignoring racism and supporting the racist.You think there is no solid reasoning behind speaking up for the way Ford speaks of others? You should be ashamed.

Posted by: SpeakoutforDemocracy | January 6, 2006 02:03 PM

You're a fucking idiot Mr. X.

Go take a walk on Othello jerkoff, and you'll get your dime for the day.

Posted by: SiliconDoc | January 6, 2006 03:13 PM

You're a fucking idiot too SpeakoutforDemocracy.

You're just like a few other people in here that are so goddamned stupid all they can do is whine about others.

Go away loser.

Posted by: SiliconDoc | January 6, 2006 03:15 PM

Silicon,

Charming as ever, about what I would expect from an apologist for fascism.

Oh, and you're still a Nazi.

Posted by: | January 6, 2006 04:20 PM

Posted by: | Jan 6, 2006 4:20:34 PM

The same fucking idiot bed wetting toothpick hugger.

LOL

Posted by: SiliconDoc | January 6, 2006 04:45 PM

High praise indeed from a wannabe Brownshirt.

Why do you hate America?

Posted by: Mr. X | January 6, 2006 04:49 PM

There may well be that the FISA protocol is outdated for current circumstances. A single computer may have thousands of names in a email contact list for example and processing warrants for all of them - even retroactively may not be practical. Especially when totaled with the electronic data being confiscated to monitor terrorists. Putting that aside for the moment, Bush is still heinous. He should have come to Congress and said, "we need a new legal framework to address security concerns today. Please help me draft one." Of course he would've been given a wide lattitude by the Congress. Given then patters we've witnessed from this President the previous five years, it is not unreasonable to assume that he is hiding something. Bush is a serial lawbreaker and his administration needs to be held accountable.

http://www.intrepidliberaljournal.blogspot.com

Posted by: Intrepid Liberal | January 24, 2006 05:55 PM

Have you seen the article below, discussing how the White House and Justice Department didn't support a 2002 modification to the FISA wiretapping law because they felt it was just fine! PLEASE READ!!


Unclaimed Territory - by Glenn Greenwald

About Me
Name:Glenn Greenwald
For the past 10 years, I was a litigator in NYC specializing in First Amendment challenges (including some of the highest-profile free speech cases over the past few years), civil rights cases, and corporate and security fraud matters.

View my complete profile

Tuesday, January 24, 2006
The Administration's new FISA defense is factually false

In light of Gen. Hayden's new claim yesterday that the reason the Bush Administration decided to eavesdrop outside of FISA is because the "probable cause" standard for obtaining a FISA warrant was too onerous (and prevented them from obtaining warrants they needed to eavesdrop), there is a fact which I have not seen discussed anywhere but which now appears extremely significant, at least to me.

In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:


to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.

During that time, the Administration was asked to advise Congress as to its position on this proposed amendment to loosen the standard for obtaining FISA warrants, and in response, they submitted a Statement from James A. Baker, the Justice Department lawyer who oversees that DoJ's Office of Intelligence Policy and Review, which is the group that "prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court)." If anyone would be familiar with problems in obtaining FISA warrants, it would be Baker.

And yet, look at what Baker said in his Statement. He began by effusively praising the Patriot Act on the ground that the 72-hour window provided by the Patriot Act had given the Administration the speed and flexibility it needed in order to engage in eavesdropping:


The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.


And then, regarding DeWine's specific proposal to lower the evidentiary standard required for a FISA warrant, Baker said that:


The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.


So, in June, 2002, the Administration refused to support elimination of the very barrier ("probable cause") which Gen. Hayden claimed yesterday necessitated the circumvention of FISA. In doing so, the Administration identified two independent reasons for opposing this amendment. One reason was that the Justice Department was not aware of any problems which the Administration was having in getting the warrants it needed under FISA:


The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.


So as of June, 2002 -- many months after the FISA bypass program was ordered -- the DoJ official who was responsible for overseeing the FISA warrant program was not aware (at least when he submitted this Statement) of any difficulties in obtaining warrants under the FISA "probable cause" standard, and for that reason, the Administration would not even support DeWine's amendment. If - as the Administration is now claiming - they had such significant difficulties obtaining the warrants they wanted for eavesdropping that they had to go outside of FISA, surely Baker - who was in charge of obtaining those warrants - would have been aware of them. And, if the Administration was really having the problems under FISA, they would have supported DeWine's Amendment. But they didn't.

The second concern the Administration expressed with DeWine's amendment was that it was quite possibly unconstitutional:


The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

By that time, the Administration had already been engaging in eavesdropping outside of the parameters of FISA, and yet the DoJ itself was expressing serious doubts about the constitutionality of that eavesdropping and even warned that engaging in it might harm national security because it would jeopardize prosecutions against terrorists. Put another way, the DoJ was concerned that it might be unconstitutional to eavesdrop with a lower standard than probable cause even as the Administration was doing exactly that.

Two other points to note about this failed DeWine Amendment that are extremely important:

(1) Congress refused to enact the DeWine Amendment and thus refused to lower the FISA standard from "probable cause" to "reasonable suspicion." It is the height of absurdity for the Administration to now suggest that Congress actually approved of this change and gave it authorization to do just that -- when Congress obviously had no idea it was being done and refused to pass that change into law when it had the chance.

(2) DeWine's amendment would have lowered the standard for obtaining a FISA warrant only for non-U.S. persons -- whereas for "U.S. persons," the standard would have continued to be "probable cause." And, DeWine's amendment would not have eliminated judicial oversight, since the Administration still would have needed approval of the FISA court for these warrants.

That means that, in 2 different respects, DeWine's FISA amendment was much, much less draconian than what the Administration was already secretly doing (i.e., lowering the evidentiary standard but (i) eliminating judicial oversight, and (ii) applying these changes not just to non-U.S. persons but also to U.S. persons). Thus, Congress refused to approve -- and the DoJ even refused to endorse -- a program much less extreme and draconian than the Administration's secret FISA bypass program.

This has extremely significant implications for the Administration's claims made yesterday through Gen. Hayden as to why it was necessary to bypass FISA. The Administration's claim that the "probable cause" component of FISA was preventing it from engaging in the eavesdropping it needed is the opposite of what it told Congress when refusing to support the DeWine Amendment. And its claim that Congress knew of and approved of its FISA-bypassing eavesdrop program is plainly negated by the fact that the same Congress was debating whether such changes should be effectuated and then refused to approve much less extreme changes to FISA than what the Administration secretly implemented on its own (and which it now claims Congress authorized).

The Administration is stuck with the excuse given by Gen. Hayden yesterday as to why it had to eavesdrop outside of FISA, but that excuse is plainly contradicted by these events and by the Administration's own statements at the time.



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Tuesday, January 24, 2006
The Administration's new FISA defense is factually false

In light of Gen. Hayden's new claim yesterday that the reason the Bush Administration decided to eavesdrop outside of FISA is because the "probable cause" standard for obtaining a FISA warrant was too onerous (and prevented them from obtaining warrants they needed to eavesdrop), there is a fact which I have not seen discussed anywhere but which now appears extremely significant, at least to me.

In June, 2002, Republican Sen. Michael DeWine of Ohio introduced legislation (S. 2659) which would have eliminated the exact barrier to FISA which Gen. Hayden yesterday said is what necessitated the Administration bypassing FISA. Specifically, DeWine's legislation proposed:


to amend the Foreign Intelligence Surveillance Act of 1978 to modify the standard of proof for issuance of orders regarding non-United States persons from probable cause to reasonable suspicion. . . .

In other words, DeWine's bill, had it become law, would have eliminated the "probable cause" barrier (at least for non-U.S. persons) which the Administration is now pointing to as the reason why it had to circumvent FISA.

During that time, the Administration was asked to advise Congress as to its position on this proposed amendment to loosen the standard for obtaining FISA warrants, and in response, they submitted a Statement from James A. Baker, the Justice Department lawyer who oversees that DoJ's Office of Intelligence Policy and Review, which is the group that "prepares and presents all applications for electronic surveillance and physical search under the Act to the Foreign Intelligence Surveillance Court (FISA Court or Court)." If anyone would be familiar with problems in obtaining FISA warrants, it would be Baker.

And yet, look at what Baker said in his Statement. He began by effusively praising the Patriot Act on the ground that the 72-hour window provided by the Patriot Act had given the Administration the speed and flexibility it needed in order to engage in eavesdropping:


The reforms in those measures (the PATRIOT Act) have affected every single application made by the Department for electronic surveillance or physical search of suspected terrorists and have enabled the government to become quicker, more flexible, and more focused in going "up" on those suspected terrorists in the United States.

One simple but important change that Congress made was to lengthen the time period for us to bring to court applications in support of Attorney General-authorized emergency FISAs. This modification has allowed us to make full and effective use of FISA's pre-existing emergency provisions to ensure that the government acts swiftly to respond to terrorist threats. Again, we are grateful for the tools Congress provided us last fall for the fight against terrorism. Thank you.


And then, regarding DeWine's specific proposal to lower the evidentiary standard required for a FISA warrant, Baker said that:


The Department of Justice has been studying Sen. DeWine's proposed legislation. Because the proposed change raises both significant legal and practical issues, the Administration at this time is not prepared to support it.


So, in June, 2002, the Administration refused to support elimination of the very barrier ("probable cause") which Gen. Hayden claimed yesterday necessitated the circumvention of FISA. In doing so, the Administration identified two independent reasons for opposing this amendment. One reason was that the Justice Department was not aware of any problems which the Administration was having in getting the warrants it needed under FISA:


The practical concern involves an assessment of whether the current "probable cause" standard has hamstrung our ability to use FISA surveillance to protect our nation. We have been aggressive in seeking FISA warrants and, thanks to Congress's passage of the USA PATRIOT Act, we have been able to use our expanded FISA tools more effectively to combat terrorist activities. It may not be the case that the probable cause standard has caused any difficulties in our ability to seek the FISA warrants we require, and we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations. If the current standard has not posed an obstacle, then there may be little to gain from the lower standard and, as I previously stated, perhaps much to lose.


So as of June, 2002 -- many months after the FISA bypass program was ordered -- the DoJ official who was responsible for overseeing the FISA warrant program was not aware (at least when he submitted this Statement) of any difficulties in obtaining warrants under the FISA "probable cause" standard, and for that reason, the Administration would not even support DeWine's amendment. If - as the Administration is now claiming - they had such significant difficulties obtaining the warrants they wanted for eavesdropping that they had to go outside of FISA, surely Baker - who was in charge of obtaining those warrants - would have been aware of them. And, if the Administration was really having the problems under FISA, they would have supported DeWine's Amendment. But they didn't.

The second concern the Administration expressed with DeWine's amendment was that it was quite possibly unconstitutional:


The Department's Office of Legal Counsel is analyzing relevant Supreme Court precedent to determine whether a "reasonable suspicion" standard for electronic surveillance and physical searches would, in the FISA context, pass constitutional muster. The issue is not clear cut, and the review process must be thorough because of what is at stake, namely, our ability to conduct investigations that are vital to protecting national security. If we err in our analysis and courts were ultimately to find a "reasonable suspicion" standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions.

By that time, the Administration had already been engaging in eavesdropping outside of the parameters of FISA, and yet the DoJ itself was expressing serious doubts about the constitutionality of that eavesdropping and even warned that engaging in it might harm national security because it would jeopardize prosecutions against terrorists. Put another way, the DoJ was concerned that it might be unconstitutional to eavesdrop with a lower standard than probable cause even as the Administration was doing exactly that.

Two other points to note about this failed DeWine Amendment that are extremely important:

(1) Congress refused to enact the DeWine Amendment and thus refused to lower the FISA standard from "probable cause" to "reasonable suspicion." It is the height of absurdity for the Administration to now suggest that Congress actually approved of this change and gave it authorization to do just that -- when Congress obviously had no idea it was being done and refused to pass that change into law when it had the chance.

(2) DeWine's amendment would have lowered the standard for obtaining a FISA warrant only for non-U.S. persons -- whereas for "U.S. persons," the standard would have continued to be "probable cause." And, DeWine's amendment would not have eliminated judicial oversight, since the Administration still would have needed approval of the FISA court for these warrants.

That means that, in 2 different respects, DeWine's FISA amendment was much, much less draconian than what the Administration was already secretly doing (i.e., lowering the evidentiary standard but (i) eliminating judicial oversight, and (ii) applying these changes not just to non-U.S. persons but also to U.S. persons). Thus, Congress refused to approve -- and the DoJ even refused to endorse -- a program much less extreme and draconian than the Administration's secret FISA bypass program.

This has extremely significant implications for the Administration's claims made yesterday through Gen. Hayden as to why it was necessary to bypass FISA. The Administration's claim that the "probable cause" component of FISA was preventing it from engaging in the eavesdropping it needed is the opposite of what it told Congress when refusing to support the DeWine Amendment. And its claim that Congress knew of and approved of its FISA-bypassing eavesdrop program is plainly negated by the fact that the same Congress was debating whether such changes should be effectuated and then refused to approve much less extreme changes to FISA than what the Administration secretly implemented on its own (and which it now claims Congress authorized).

The Administration is stuck with the excuse given by Gen. Hayden yesterday as to why it had to eavesdrop outside of FISA, but that excuse is plainly contradicted by these events and by the Administration's own statements at the time.

Posted by: teggy cusicle | January 24, 2006 11:52 PM

Oversight is not just a matter of informing a few members of congress or relying on the Executive Branch policing itself. Oversight has to include the opportunity for an independant legal authority to say no to an Executive Branch request for a warrant. This is exactly what is being circumvented through the disregard of the FISA court.

It seems that those that support the Bush Administration in this matter are comfortable in placing complete blind trust in the Bush Administration and they can't fathom anyone not sharing that level of trust. For me its both a concern for now because of this disregard of rights combined with others (e.g. Abu Ghraib, secret prisons in eastern Europe, interrogation techniques not officially defined as torture, detention of people in the U.S. without charges or communication with legal counsel), as well as the precedent set for future administrations.

A society like ours doesn't lose its freedoms overnight in one great flash flood of upheaval. They are eroded over time by raindrops of justification based on fear. I'm not saying that we shouldn't be conducting these wiretaps, but we do need to follow legal means to conduct them, and if those legal means have to be modified, a valid case must be made to Congress to modify them. The excuse of inconvienience doesn't hold up against the damage to our rights both now or for the future, especially when a modified law should be able to alleviate any inconvienience that currently exists.

Posted by: DK | January 25, 2006 03:18 AM

Reply by President Bush when asked if the Patriot Act weakens Fourth Amendment rights.

Excerpt of the answer:
BUSH: "I appreciate that.

I really don't think your rights are being watered down. As a matter of fact, I wouldn't support it if I thought that.

Every action being taken against terrorists requires court order, requires scrutiny."

"So I really don't think so. I hope you don't think that. I mean, I -- because I think whoever is the president must guard your liberties, must not erode your rights in America."

Source: http://www.debates.org/pages/trans2004c.html

Posted by: Sunny | January 25, 2006 10:46 AM

What about former Maryland Congressman, Michael Barnes? In 1995 a Baltimore Sun article stated that under the Reagan Administration Barnes phone calls were regularly intercepted, which he discovered only after reporters had been passed transcripts of his conversations by the White House. The White House even demanded he fire an aide for going to the Nicaraguan embassy, which they picked up in a cable to Nicaragua from the embassy.

Posted by: Perry Abernethy | January 25, 2006 11:00 AM

Something we should all fear, is the
definition of 'terrorist' becoming fuzzy and
anything that gets in the way of Bush and Co.
might fall into that catagory. If if it is someone by Bush's reasoning , supports terrorist, by not agreeing with his policies
and that person or group challenges those policies, then they stand a good chance of being spied upon. Much of the propaganda that
we heard about the Soviet Union back in the
50s, seems to be the same stuff the present
administration spews today. We always heard things were done for 'security reasons' in the SU, now that seems to be
the game the Bush team plays as well.
I don't know why it would be so hard for
Bush to ask for a warrent to easedrop. It's almost a rubber stamp process anyway. He
is becoming Comrade Bush, The Great Leader, as each day passes. The press had
every right to expose what was going on, and it's nice to see some in the press still have some cajones.

Posted by: Z | January 25, 2006 01:27 PM

so wut u guys are all for or against bush

Posted by: the one to end it | January 29, 2006 04:41 PM

"Stop throwing the Constitution in my face," Bush screamed back. "It's just a goddamned piece of paper!"

U.S. Constitution: Fourth Amendment - Search and Seizure
'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.'

...and no Warrants shall issue, but upon probable cause...

Don't you stupid ugly Americans, Republicans AND Democrats know how to read your own god damn Constitution???

Posted by: Americans R Cowards | January 31, 2006 12:26 PM

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