Strengthening Constitutional Self-Government

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Feingold’s maneuver

Russ Feingold says that he’s going to introduce a resolution censuring President Bush for the warrantless wiretapping. The first sentence of this story explains why, I think.

Discussions - 38 Comments

The first sentence of this story explains why, I think.


Probably, but isn’t it a legitimate mix of politics and practicality?


After all, many republicans also think the president broke the law, and there isn’t a hope in ... heck ... of getting him impeached. Well, yet.


Strikes me as a pretty reasonable way station on the road to impeachment. My positivity towards the US will surge if I see Bush impeached, and I’m pretty positivley disposed to censure too.


I’m betting I wouldn’t be the only foreigner would feel that way.

Well it’s good that the opinions of foreigners don’t count when determining the best course for the United States. Now, I know you’re resentful of the fact that the United State’s dominance influences every aspect of world affairs, but that’s the benefit you get when your country has produced more than U2 and Liam Neeson, or even ABBA if you prefer, in the last 40 years.

I plan to hear Danu live in a few days. If ever there was a better Irish band, I don’t know of it.

And there are plenty of Americans who support impeaching Bush, as well.

Keep telling yourself that Fung; you may actually convince yourself you can win back the House in ’06 or even the Presidency in ’08.

Apparently, liberal idealism isn’t dead, it’s just become delusional.

I thought ABBA was a Swedish band.

The Administration Has Used FISA Thousands of Times Since 9/11: Administration officials have criticized FISA, but they have obtained thousands of warrants approved by the FISA court since 9/11, and have almost never had a warrant request rejected by that court.

I’m confused by this. If the FISA court has approved the warrants, where was the law broken?

I’m confused by this. If the FISA court has approved the warrants, where was the law broken?

The FISA court did approve warrants in the vast majority of cases that were brought before it, but there were a large number of cases that the administration chose not to bring before the court.

On a side note, Mclellans comments at a recent press conference.


Here, according to an article from Reuters, is what Scott McClellan said today in response to Sen. Feingold’s censure resolution:


"I think it does raise the question, how do you fight and win the war on terrorism?" McClellan said. "And if Democrats want to argue that we shouldn’t be listening to al Qaeda communications, it’s their right and we welcome the debate. We are a nation at war."


Like anyone else, the White House has every right to engage in aggressive advocacy when defending itself as part of the NSA scandal or any other issue. However, surely this is not advocacy. Isn’t it just lying? No Democrats are advocating that the NSA not listen to Al Qaeda communications, and Scott McClellan knows that.


Am I wrong?

Yes Coughlan, you are wrong. Now go back to sleep.

Does anyone here besides Coughlan not know that the NSA intercept program was directed at interception of al qaeda communications with persons in the United States?

Does anyone here besides Feingold and Coughlan not know that several United States Supreme Court and lower federal court cases have addressed the United States Constitution Article 2 powers of the President and FISA and determined that the President does have the power to conduct surveilances without FISA warrants if national security interests are the bases for the surveilance?

Read it again ... and try and really read it.


"I think it does raise the question, how do you fight and win the war on terrorism?" McClellan said. "And if Democrats want to argue that we shouldn’t be listening to al Qaeda communications, ....


Thats not true. I downloaded and listened to Feingold talking about this issue, and that was exactly what he did NOT say. He just wants the president to held accountable for breaking the law.


You don’t see that it poisons the well of debate when Scotty says things that are simply not true?


Here is the clip : http://movies.crooksandliars.com/abc_tw_fiengold_bush_censure_060312b.wmv


I don’t know about the legality of this business, but I know what Feingold said, and I know what Scotty said. Scotty lied, it’s plain as day.


I have never seen anything like the different worlds, inhabited by the political parties in the US, anywhere else.


It actually seems like you guys have difficulty agreeing on what objective reality is.


That strikes me as a very big problem indeed.

"Does anyone here besides Coughlan not know that the NSA intercept program was directed at interception of al qaeda communications with persons in the United States?"


And you know that how? The fact is you don’t and are simply swallowing whatever Bush and his cronies tell you.

Padre:

I am a lawyer and a legal scholar. I am not swallowing anything. I have done the research. The legal authorities are all in favor of the President of the United States on this one. The administration went into closed session with many members of the senate who were critical of the program. All of the senators involved in that session immediately backed off from their criticism of the program.

Coughlan:

I’m going to type this very slowly in the hopes you will understand. Feingold said he wanted the President censured for breaking the law. The law he was alluding to was FISA law which requires warrants for wiretaps in the United States and the fact that President Bush authorized the wiretapping of calls from al qaeda members to the United States without warrants. What "Scotty" said was a common dig at democrats who have painted themselves into a corner by claiming they’re tough on the war on terror but don’t want al qaeda wiretapped when it calls the U.S.

The administration went into closed session with many members of the senate who were critical of the program. All of the senators involved in that session immediately backed off from their criticism of the program.


This is the curse of the national security card. Nation states can cloak whatever outrages under the guise of "national security" and the citizens must simply accept what is being said on faith.


Do you actually trust politicians? If so why? Has anything in the entire sweep of human history given us any grounds to trust politicians ... at all?


Not really, is what I’d say. These people need to be watched like hawks, hounded night and day and have their every decision scrutinised and challenged in minute detail. Then we’ll finally get some accountability.

This is the curse of the national security card. Nation states can cloak whatever outrages under the guise of "national security" and the citizens must simply accept what is being said on faith.

I’m sure Usama, Aimen and Abu Mussab agree with you.

What "Scotty" said was a common dig at democrats who have painted themselves into a corner by claiming they’re tough on the war on terror but don’t want al qaeda wiretapped when it calls the U.S.


Common or not, it’s still untrue though. Democrats want wiretapping to continue (I’m not a fan myself but thats another discussion) but for it to be legal. Democrats are mostly just as dreadfully war happy as republicans, as far as I can tell. With perhaps the exception of Howard Dean and Barbara Boxer.


So when Scotty says democrats don’t want al qaeda wiretapped, it’s just not true. Regardless of FISA being legal or not.

This is the curse of the national security card. Nation states can cloak whatever outrages under the guise of "national security" and the citizens must simply accept what is being said on faith.


So what? How does that invalidate the point? I’m willing to bet you agree with them that abortions are an offense to God and his creation. Does that make you a muslim terrorist?


Peoples views and the underlying causes are complex, because they occasionally agree means very little. It’s no more than a cheap 3rd class rethorical tool.

I’m sure Usama, Aimen and Abu Mussab agree with you.


So what? How does your comment invalidate the point? I’m willing to bet you agree with them that abortions are an offense to God and his creation. Does that make you a muslim terrorist?

Peoples views and the underlying causes are complex, because they occasionally agree means very little. It’s no more than a cheap 3rd class rethorical tool.

Once again slowly:

Democrats want wiretapping to continue (I’m not a fan myself but thats another discussion) but for it to be legal. Comments by Coughlan

In order for wiretaps to be legal according to Feingold’s ilk, FISA court orders would first have to be obtained. It takes at least 3 days to get a FISA order. Do you think al qaeda will hold that long? I think their cell phone batteries will go dead while they wait. Don’t you?

For a person who claims to want to watch American politicians like a hawk from Sweden, you need a stronger prescription for your glasses. Boxer. Get a grip.

I’m sure Usama, Aimen and Abu Mussab agree with you.

Excuse me for being subtle. The point is that when at war, there are certain things you don’t want your enemies to know, hence the need for closed sessions. They are a necessity and a fact of life. Get over it.

It takes at least 3 days to get a FISA order. Do you think al qaeda will hold that long? I think their cell phone batteries will go dead while they wait. Don’t you?


Well thats bollix isn’t it? Can’t you get these warrants retrospectivley?


Now if what you say were true, it would explain some pushing of the boundaries for several weeks, but for years?


As a "legal" scholar, you seem to have only a fuzzy grasp of your own local laws.


Excuse me for being subtle.


Yeah ... not your strong suit. Best go for the full frontal bluster, you’re great at that:-)


I have to go to work now, so it’s been fun. Catch yah later.

As a "legal" scholar, you seem to have only a fuzzy grasp of your own local laws.

Excuse me for being subtle.

Yeah ... not your strong suit. Best go for the full frontal bluster, you’re great at that:-)Comment 21 by Brian Coughlan
Now who’s attacking the character of his opponent?

By saying you have no grasp of our laws at all would I be implying you’re right that my grasp is fuzzy? My grasp of our laws is quite solid, thank you. The fuzz got worn off in my first year of law school.

I’d thank you for the back handed compliment, but it’s not bluster. It’s patriotism. Something you’d know nothing about. Yeah, yeah, yeah, I know you’re a patriot of the world. Sigh. (heh heh heh heh)

"I am a lawyer.."


From which law school and practiced in what?


"...a legal scholar."


Talk is cheap: give us some evidence. Cite some publications.


"I have done the research."


Being the good scholar you claim to be it should be easy to cite some of that research.


"The legal authorities are all in favor of the President of the United States on this one."
BWAHAHAHAHAHAHAHAHA.

United States v. Truong Dinh Hung, 1981 667 F.2d 1105: The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.

United States v. United States District Court, (1972). 407 U.S. 297 (dictum): [T]he instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.

Hamdi v. Rumsfeld, (2004) 542 U.S. 507 (dictum): The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government’s alternative position, that Congress has in fact authorized Hamdi’s detention through the AUMF [the post-September 11 Authorization for the Use of Military Force].

United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974): In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”

United States v. Buck, 548 F.2d 871 (9th Cir. 1977): Foreign security wiretaps are a recognized exception to the general warrant requirement…

United States v. Duggan, (1984) 743 F.2d 59:…virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

Sealed Case No. 02-001 (2002): The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.
See also: Federalist No. 74;
Fleming v. Page, 9 How. 603;
Katz v. U.S, 1967, 389 U.S.347

Now Padre, you cite your authorities.

No contra-authority eh Padre? I knew you wouldn’t come up with any.

Class dismissed.

Rather than take the word of some self-proclaimed "legal scholar" holding "class" on a right wing blog, I’d suggest looking at some of the discussion here:


http://en.wikipedia.org/wiki/N.S.A._surveillance_without_warrants_controversy#Foreign_Intelligence_Surveillance_Act_.28FISA.29
One doesn’t need to to be a lawyer or hide behind a bunch of legalese to understand that there has been a lot of vigorous dissent about this in the community of credible scholars.

Now where were we?

1. "Does anyone here besides Coughlan not know that the NSA intercept program was directed at interception of al qaeda communications with persons in the United States?"

And you know that the NSA interception was directed at al queda communications how?

2. You also stated "The legal authorities are all in favor of the President of the United States on this one."

See above link.

On February 13, 2006, the American Bar Association issued a statement denouncing the warrantless domestic surveillance program, accusing the President of exceeding his powers under the Constitution. The ABA also formulated a policy opposing any future government use of electronic surveillance in the United States for foreign intelligence purposes without first obtaining warrants from a special secret court set up under the 1978 Foreign Intelligence Surveillance Act.[7]


Not questioning or commenting that it was "troubling", nope, outright denouncing!!


Phew! Game, set and match to the good Father I think. Nicely played.

Quote was from the wikipedia link.

Brian, if you think the ABA is politically neutral, you are mistaken.

"Appeal to Authority" is a fallacy. Go ahead and read the arguments listed by those claiming the NSA surveillance is illegal, try to find a case that supports their position. You can’t. You will see that all the blathering is about a policy preference these "elits’s" have, not about actual law.

The courts will rule in favor of the NSA, IM (not so) HO.

Game, set and match based on a citation not to legal authority, but to a politically-oriented organization that has suggested, among other liberal ideas, requiring law schools to consider race in admissions and hiring? Come on, Brian. A citation to the ABA doesn’t trump a citation to Supreme Court precedent, or a citation to the FISA Court of Appeals (In re Sealed Case)--the specialty appeals court set up to hear FISA claims. As for proof that the NSA program is targeting al Qaeda, the original NYT article, which was based on internal leaks, expressly said that. The White House in its press conference with Alberto Gonzales expressly stated that. No respectable Democratic politician has suggested otherwise. This is the rambling of conspiracy theorists. The argument that "we don’t know, so they may be tapping everyone" is as unprovable as if I were to assert that NSA program has prevented four 9/11-style attacks on U.S. soil. So lets set aside the unfounded speculation and keep to the facts as they are known in the public record, shall we.

2. You also stated "The legal authorities are all in favor of the President of the United States on this one."


Thats what the man said. Regardless of their neutrality, the ABA strikes me a legal authority, that is to say an authority on US law. Therefore to say something as sweeping as what was said ... it’s flat wrong, as most generalisations are:-)


Don’t all beat up on the poor foreign dumb guy all the time!


Plus to trot out the "appeal to authority" argument is something of an own goal in this case. The entire premise of the wiretapping’s acceptability is based on an appeal to authority. i.e. big brother Gov knows best, don’t worry your little head about it.


I mean c’mon!!! How can anyone make any kind of judgement on an activity that no one will tell you anything about? This is american checks and balances 101 surely?

At best, the ABA’s opinions are looked to for persuasive force by courts. Because the organization is so politicized, that persuasive force is often very low. By contrast, the citations to court cases are legal authority. The cases say what the law means, not what a group of political lawyers (the ABA) would like it to mean. And, in the case of Supreme Court precedent (some of which was cited by Uncle Guido), those decisions are binding on lower courts. If you march into district court and one party cites binding, on point Supreme Court precedent, and the other party cites to an ABA statement, then game, set and match as a matter of black letter law goes to the party who actually cited the law.

As for appeal to authority, no the argument regarding wiretaps is not just an appeal to the principle that the government knows best. Rather, it is an appeal to the fact that the government has the legal authority to conduct the wiretapping. You may even disagree with the political prudence of conducting the wiretaps (for reasons including a lack of faith in the ideas that government knows best), but nonetheless recognize that the government has the legal authority to do so.

Padre:

"Legal authority" is a term of art. It means case law, in other words reported appellate court and supreme court opinions, statutory and constitutional law. It does not include wikipedia, pundits from either side of the aisle or the American Bar Association, I assure you.

When I said all of the legal authority is for the President on this one, I meant all of the appellate and supreme court reported case authority. I did not mean opinions of left wing pundits, wikipedia or the legal arm of the democratic party aka the ABA. I repeat: All of the LEGAL authorities, the only ones that matter, are in favor of the President on this one.

Game, set match. Care to go another round Coughlan? Padre? Anyone?

And Not Coughlan:

I have never seen an ABA opinion cited by any court as persuasive authority. Even your reference to that body’s opinions as persuasive at best is overly generous.

I concede my own ignorance on the question of legality and whom the relevant "legal authorities" are. That wasn’t my primary reason for being on the thread though, and I should have had the wisdom not to pontificate on subjects I don’t know much about. Point taken:-)


However, there are two answers, to questions that came up in this thread, that I’d like a straight answer on.


One :
It takes at least 3 days to get a FISA order. Do you think al qaeda will hold that long? I think their cell phone batteries will go dead while they wait. Don’t you?


I have heard repeatedly that these warrants can be obtained retrospectivley, so I’m genuinely confused as to how FISA could cause a delay in wiretapping.


Two : "I think it does raise the question, how do you fight and win the war on terrorism?" McClellan said. "And if Democrats want to argue that we shouldn’t be listening to al Qaeda communications, ....


Scotty lied when he said this. There are no democrats saying anything like that. Surely he must know this? Doesn’t it cause serious issues with debate if the parties won’t even inhabit the same reality?

The NLT self-proclaimed "legal scholar" makes up his own rules and.............................pronounces himself the winner!

And, of course, evades the key question once again.

I’ll let you have the last word Padre.

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