VirusHead

You are not applying the correct authorization. The President has constitutional powers that give him authorization and no other laws or statutes apply in the this case. Until it is decided that he over stepped his constitutional authority it just isn’t true.

What is it about the above that you didn’t understand? The law is specific about domestic spying and executive power, even in time of war.

There can be no secret executive authorized spying on American citizens – even the use of force only allows for 15 days – not for years later.

The Bush administration requested, and Congress rejected, war-making authority “in the United States” in negotiations over the joint resolution passed days after the terrorist attacks of Sept. 11, 2001.

It’s a _Constitutional_ issue – it’s about the limits of executive power, limits that are there for excellent reason. No matter how much you and others seem to desire a dictator, this is America. He is not allowed to authorize the NSA to spy on us. If it’s true that the telecommunications companies are implicated in a whole new phishing method, then it’s even more serious.

As an American leader, Bush must operate within US laws. Under Article II, Section 3 of our Constitution the President has an express and unavoidable duty to faithfully execute the “Laws.” He has absolutely no power to violate them. He swore an oath to that effect.

Jordan Praust at Jurist argues that

Third, whatever authorizations exist in the AUMF to use force, it is evident that they are restricted in two important respects. The first restriction is recognizable in language reflecting past events. The words “planned, authorized, committed, or aided” refer to the past and more specifically merely to the events of 9/11. The word “harbored” is also oriented in the past. Congress may have neglected certain future dangers to the United States, but neither the President nor the courts have constitutional authority to rewrite congressional legislation. The second restriction is more significant. With respect to the persons against whom appropriate force can be directed, the authorization is expressly and unavoidably tied to those who “planned, authorized, committed, or aided” the 9/11 attacks as such or who “harbored such … persons.” What is not covered by the language of the AUMF is use of appropriate force against those who merely have, in the President’s words, “known links” with al Qaeda and in Assistant Attorney General Moschella’s words, links with “an affiliated terrorist organization” (whatever the Orwellian limits of those phrases might imply). Also not covered are misguided persons who merely sympathize with the 9/11 terrorists, all persons who pose “a threat of future terrorist attacks,” or persons who simply communicate with them.

…

The FISA provides an appropriate national security tool for spying on transnational communications with the 9/11 and other terrorists. The AUMF does not do so and offers no aid for presidents and others who undertake domestic spying – or for that matter torture or unconstitutional military commissions – in violation of the laws of the United States

It’s also an issue of national security – by bypassing the court that governs terrorism, this move could threaten cases against actual foreign terrorists dependant on evidence uncovered in that manner. U.S. District Judge James Robertson – on the Foreign Intelligence Surveillance Court – resigned in protest. Arlen Specter (R-Pa) intends to begin oversight hearings in January to assess the stated justifications for the spying.

No ostrich-like denial can long hold up. Take a look at the unqualified cronies in Homeland Security and elsewhere – we have another Katrina-effect brewing there if there’s a real crisis. We could have put in systems to inspect cargo. We could have had real competance – but people like you support these greedy weasels and conflict-of-interest case studies, and here we are.

I had assumed that you were an honorable and worthy adversary, but perhaps I was somewhat mistaken. My bad.

Religion can sure be a dangerous thing, can’t it?

The worshippers are overboard with their zealousness, these days. You made a point about shooting nuns while singing “La Marseillaise” and then Deacon Jon came along to make sure we all understand how right you are.

Friends take note, and quit giggling! Inside joke makes remarks more amusing than you know.

Tweren’t my words – but happy to notice them. I laugh at witty hyperbolic statements about Democrats too. I love language, and humor.

I understand your point, but actually I’m not anti-religious. My argument would be that greedy corrupt killers and their enablers and conned victims can’t really represent any authentic spiritual position. Paul Tillich talks about one’s religion as one’s “ultimate concern.” At the top of your heap of motivations, it’s usually just one thing – power, money, self-gratification, family, nation, position, stability, sex, greed, narcissism, altruism, risk, understanding, belonging, compliance with a tradition/rules, or some kind of religious transcendence or relationship with the cosmos/God/Goddess (whatever the name is, it’s inadequate). Many people get tangled up in symbols and forget to ask questions. Many people follow “false prophets.” And there are many paths of spiritual insight – it’s a lifelong journey, not a set of parroted answers. Like everything else, you learn more as you go – but only if you don’t shut off.

Actually, I’ve known wonderful Deacons. It’s only fanatics and the otherwise or additionally troubled that get so warped out and fearful and angry and jealous and violent and vengeful. Laughter and joy and simple kindness are things they just don’t seem to understand very well. People who hate are always so serious.

The law you are using doesn’t what the NSA was authorized to carryout. You keep talking about situations involving other agencies including the police and FBI and CIA. You can keep saying the same thing over and over again and it still doesn’t cover what President Bush legally authorized the NSA to carry out. If these wire taps involved the local police or FBI then you would be correct about saying that warrants were needed.

FISA is the place for Foreign Intelligence, which is what they were aiming for, right? As far as I know, the local police can’t get a “secret warrant” from FISA. Maybe they can. But you can’t say that it has to do with war powers and then put it in some other jurisdiction than FISA.

What he _could_ have done was get a “new paradigm” passed through Congress, or created a new branch of Homeland Security. He could even have snuck it in one of those huge bills that no-one is allowed to read before voting on it. The thing is, he’s just not allowed to spy on thousands of us without probable cause. That’s it. That’s all. That’s the bottom line. It’s against our Constitution and it’s against our other laws.

Bush’s authorization of the NSA overstepped his bounds. When Ashcroft was in the hospital, his second in command refused to authorize the program, saying it was illegal. Cheney went to Ashcroft’s bedside to get him to sign it. Doesn’t that ring any bells for you? What about the NSA’s own charter, which does not authorize domestic intelligence
gathering?

Even some within the Administration think so, and certainly many legal minds and historians think so too. You and Bush and his paid “justifiers” are the ones who keep repeating obvious untruths here.

Look, the basic modus operandi of this administration is simply to do whatever they want regardless of the law, and get their top minds to justify it. The legal brief justifying was written by Prof. John Yoo, at that time at the Department of Justice. Yoo is also author of (notorious) memos justifying torture. Jon Carrol has a funny parody of his argument – a little too close to the bone, though. I wish it were more of an exaggeration.)

Oh, and just as a sidenote, we have not issued a formal declaration of war, so I’m not sure what “war powers” could be used. If the NSA-designed Echelon system actually works to intercept ordinary e-mail, fax, telex, and telephone communications carried over the world’s telecommunications networks, then it targets everyone, US citizen or not.

Sheesh. Did all your part-libertarians leave or something?

Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn’t. I expect to see this happen, even given the right-wing majority.

FISA takes a back seat to the Presidents constitutional powers to authorize warrant less wiretaps. These powers trump the FISA ststute.

The Congress has the duty to check the President and after it is all said and done they will come to the conclusion that President Bush acted within his constitutional powers and for that we are much safer. I think this is all a silly thing to be arguing over anyways.

All of this bluster by the Congress and by the liberals over whether the NSA should have went to this rubberstamp court that would have somehow made it all better.

I guess what we need is to make an amendment to the US Constituttion to spell out that the President has the power to give authorization to warrant less wiretaps in cases of National Security just like this so we don’t have to go through all this nonsense again. Yes, you heard me right I think this is all nonsense.

I’m not against religion till it reaches the point where people are either aggravated or harmed by it, and Shrubberals are doing both.

There is a heavy responsibility to be borne by the worshippers for every crime committed against God and man by El Shrubbo, and I am not the least bit reticent in saying so. If the truth is hyperbole, then I’m hyperbolic.

Jolly Roger – I’m with you on that.

Jon – Press releases by the President’s lawyers and aren’t really much of an authority on the legal status of this. I’m not impressed by repetition of a claim without supporting evidence.

I’m not a lawyer, of course, but here is my understanding so far. Wartime authority is limited to the times and places of imminent or actual battle – i.e. the use of the military outside of the U.S.

Americans have constitutional protections that are enforceable.

See Youngstown Sheet & Tube Co. v. Sawyer

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Before the 1978 enactment of FISA (signed by the President), the President could exercise independent responsibility, since Congress was silent on the issue. The lack of such oversight led to executive branch abuse, which is why it was enacted. After that, President is only allowed to conduct domestic surveillance of United States persons if FISA is declared unconstitutional. Since it was a constitutional enactment, it is the law of the land.

If FISA can’t restrict the president’s powers, then what is it for?

It is at least a minimual restraint on abuse of executive power in this area, and preserves the constitutional rights of Americans to be secure against unreasonable searches and seizures. The government must set forth the facts that justify belief that the “target” is a foreign power or agent of such. And there has to be a target.

Bush has no authority to override this, at least not on his own. If the law is changed in a constitutional process, fine. As it is, he broke the law.

Think about it – in the President’s terms we are “at war” from now on – so then, what meaning will our democracy have? Without oversight (checks/balances) from the other two branches of government, our Constitutional system is meaningless and on the way out.

Congress and the American people will have to debate what an appropriate and legal regime is. It is neither appropriate nor legal for the President to grab these powers for the foreseeable future, especially since I see they are arguing for “plenary” (full, absolute) power. In that case, I suppose we can’t really hold the next election, since we are in so much peril? Is that where we’re headed with this?

No evidence has been presented that h didn’t have the authority according to the Constitutional Powers. Please don’t rehash the 4th Amendment and FISA as proof, they don’t apply to what is being discussed. If we were discussing the Police or FBI than yes FISA and the 4th Amendment do apply.

Well Jon, I’m certainly not the only one that thinks the 4th amendment and FISA are directly applicable – and actually, rather central. The Congress was _not_ silent on this issue. The NSA is not authorized to do this sort of domestic work. There was no oversight at all while American civil liberties and rights of privacy were invaded.

You haven’t addressed any of the points above with any argument or evidence, and I’m not going to avoid it just so that Bush supporters don’t have to confront the realities here. Anyway, you all seem capable of blinding yourselves without my polite abstentions.

If a Democratic president seized these powers, I know your tune would be different.

But mine wouldn’t.

I believe that although our system has major flaws (like campaign financing, for example), it is worth perserving the things about it that actually contribute to our ideals of justice, freedom, liberty, and democracy.

An executive takeover is a bad bad idea for us, and you would see that very clearly if it weren’t Cheney(Bush).

President Bush acted within his Constitutional Powers and until it is proven otherwise this is all a moot argument. Anyone that says there isn’t Congressional oversight of this program didn’t listen when it was said that Congress was in the loop and they had ample opportunity to review the program and at the time didn’t use their power to review the program.

Lets just wait until the review is done before we condemn the President for something that in fact was in his Constitutional Powers.

If this was a Democrat President we wouldn’t even be having this discussion. It is all because President Bush and his administration has been under fire for 5 years and it won’t stop until he finishes his term in office.

As far as not addressing your points above I have already discussed them, you think the 4th Amendment and FISA apply to the NSA program and you would be wrong. President Bush used Constitutional Powers which allowed him to authorize the NSA to conduct the wiretaps. So until it is reviewed and it is determined one way or the other the program will continue to be carried out.

Congress was silent on the issue if they didn’t take the opportunity to call for hearings to look into the program. I say they didn’t because they realized that President Bush had the authority to o so and now only becuase there was a leak of secret National Security information to the press the Congress are feigning outrage and clamouring to make a spectacle of the whole situation for the benefit of all of us Bush bashers.

That would be the Republican Congress….

Just to throw water on the gasoline:

The Constitution is a beautiful instrument. If you let it, it will answer most of your questions. Understand that it has to be taken as a whole – with no part being more important. Also, understand that later parts tend to qualify earlier parts – early parts grant broad powers, and later parts then narrow that down.

First Issue – the vestment of Executive Power – Article II, Section 1: “The executive power shall be vested in a President of the United States of America.” – That only creates the President as a separate branch from the Legislature. The immediately following section deals with selecting a President and the Oath of Office and are simply not germane to the issue.

Second Issue – Scope of power – Article II, Section 2: Paragraph 1 – Commander in Chief of the Army and Navy. Unless actual military personnel are being used, this does not apply. He has the power to require reports in writing from Executive Departments, and he can grant pardons.

Paragraph Two: He can make treaties, which the Senate must approve. He can make appointments, which the Senate must approve – those required by the Constitution AND ALL OTHERS CREATED BY LAW. “but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

This part IS germain to the issue – if Congress passes any law that creates an agency – like the NSA – they also have the power to require that it go through proper oversight of the courts. That is what FISA did.

In addition, the Fourth Amendment guarantees that “the people” NOT “the citizens”, but “the people” will be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”

To say that the scope of Executive Power is fixed in Section 1 and afterwards unlimited is to say that no understanding of Constitutional limits on government exists. There are only two ways to arrive at that conclusion: 1) To be totally ignorant of the sum history of Constitutional law; or 2) To be blindly devoted to a particular person to the extent that you are willing to forgo the Constitutional liberties that generations of Americans have fought and died for.

The first is excusable, though, in a natural born American, a tragedy. The second is not excusable for any reason.

I agree that we should be cautious about accusing the President of violating the Constitution. However, the facts, as they are known to the public, indicate that a reasonable person would at least support an investigation into what was done, when, why, and under what authority. There are undoubtedly details that the public will never know – or at least not for fifty years when the National Security threats have abated. There are, however, sitting Congressmen and Congresswomen who have the ability (though I’m not sure of the desire) to investigate this issue. If Congress cannot, then a bipartisan commission can certainly do so.

However, anyone who says that there is no cause for concern is simply not paying attention to what has been done.

XT

Well said, XT.