Thats it? Not even going to attempt a refutation just a blanket denial of a fact that conflicts with what you want to believe?
What’s to refute? There has been no formal declaration of war and there has been no formal declaration that AQ is an enemy. There has also been no ruling (that I’m aware of) by the Supreme Court that AQ is an “enemy,” so what is the legal basis for your claim that they are?
Hmm, Webster defines war as:
Under the 2nd definition, “a state of hostility, conflict, or atagonism” or “a struggle or competition between opposing forces or for a particular end” our conflict with Al Qaeda could and ought to be certainly called a war.
Congress has the sole power to issue declarations of war. But to say that all conflicts that happen without said declarations are not wars, or that our opponents in said conflicts are not our enemies, is an argument not supported by logic and I’d be hard pressed to find where it’s even supported by the law or historical and constitutional precedent.
How many times did we declar war against Indian tribes we deliberately attacked and whom we deliberately took land from? Do you think they didn’t consider it a war? That we weren’t considered their enemies?
Also, is there anything within the realm of United States history or jurisprudence that makes you think the Supreme Court of the United States even has the power to declare someone an enemy, let alone that it would be necessary to consider them such?
We’re not at war. Sorry. War powers apply only in conditions of declared war. Webster’s doesn’t count here. The monkey broke the law. Lock him up.
Can’t.
Unless you can point to a statute that says “illegal wiretapping” is a crime and said statute specifies a punishment.
Certain war powers do only exist during war time. But the President has broad national security powers that exist at ALL times, because even the founders recognized threats can come even in the absence of a declared war.
When talking about the statement of yours I was referring to webster’s certainly does apply. You didn’t make the statement, “We’re not at war” and “Al-Qaeda isn’t our enemy” in the context that those two things were necessary in order for the President to use war powers (care to show me where war powers are delineated? I’m not even sure they are specifically restricted to war time, and the War Powers Act even seems to accept that) you were just issuing them as blanket statements, that we aren’t at war, and that Al Qaeda is not our enemy. You didn’t add any legalistic qualifiers, you were just offering up statements of fact. I offered a contrary and relevant fact, that there is more than one way to define war and enemy, and under a commonly accepted view of what war is, and what an enemy is, it’s easy to say we’re involved in a war and that Al Qaeda is our enemy.
If you had decided to do more than just offer up single line answers to a complex issue maybe you would have had a point, somewhere.
Of course llegal wiretapping is a crime. If it wasn’t a crime, it wouln’t be illegal. would it?
[quote]
Certain war powers do only exist during war time. But the President has broad national security powers that exist at ALL times[/qiote]
Cite?
Did you miss the case I cited above? There needs to be no formal declaration of war nor does there need to be a formal declaration that AQ is an enemy for there to be war or for AQ to be an enemy. You can’t simply ignore the reasoning in Bas becuase it has value beyond precident. It is the logical and correct way to look at this situation. Al Qaeda flew a plane into the WTC and killed 3,000 Americans. In response Congress authorized the President to use military force and he did so. They attacked us and we bombed the crap out of them and conquered the land under their control. If attacking us and killing Americans does not make Al Qaeda an enemy by any reasonable definition of the word then what does? If sending an army to a country and bombing the crap out of them does not constitute war by any reasonable definition of the word then what does?
If that does not satisfy you then read Hamdi. While the SCOTUS never comes out and declares us at war or AQ the enemy, mainly becuase it simply isn’t an issue, it is clear they are operating under the premise that our action in Afghanistan is war and those that we are fighting are enemies. If they did not consider AQ, or if not them then at least someone, an enemy then how is it possible for them to declare Hamdi an “enemy combatant.”
[QUOTE=Diogenes the Cynic]
Of course llegal wiretapping is a crime. If it wasn’t a crime, it wouln’t be illegal. would it?
Maybe it isn’t illegal then. Do you know that in order for something to be substantive criminal law it has to be specifically specified by statute that it is illegal, and then the punishment must be spelled out? Here in the United States you can’t be arrested and convicted of something that you can’t read about being illegal and read about the punishment before hand. We have a right to know the laws and the punishments, remember when Hammurabi put up the laws for everyone to see?
This would obviously be a federal crime if it is one, and I don’t see it listed anywhere in the U.S. code. If a U.S. Attorney brought Bush to trial, I’m having a hard time imagining a judge that would allow a prosecution of something that isn’t a crime. The court system can’t act outside the law, there’s no such thing as an assumed crime, if it’s not spelled out, one cannot be prosecuted for it.
I guess the best answer to this, is using the term “illegal” isn’t the proper term. I’m sure there is a better term for searches and such that aren’t done with proper constitutional authority.
I actually I think, the correct answer may be that it is illegal without being a crime. Something being illegal just means it is proscribed by law, but without any punishments spelled out, it can’t be a crime because you can’t be convicted of something when the punishment isn’t spelled out in statute.
Again, as it is right now, Bush cannot be arrested and punished for this under any statutes I’ve ever heard of, unless you can provide a statute that would allow it, then your are wrong about it being a crime.
This raises in to question, what exactly is the penalty for one branch of government overstepping its authority? What if the Supreme Court tried to declare war? That certainly wouldn’t be a CRIME, that I’m aware of, again, to be a crime it has to be spelled out in statute. I’m guessing the only recourse would be to declare the justices unfit for their positions and to impeach them. Or, the President and Congress could just ignore what they did, effectively checking their bout with insanity.
What if Congress passes a law over the President’s veto and the President decides to ignore the law? Say it’s a law criminalizing the ownership of hand guns. But the President orders the FBI to never arrest anyone for that crime. Not enforcing Congress’s laws wouldn’t constitute a crime, that I’m aware of, under any U.S. statutes. In that case the only proper recourse the congress would have would be to impeach the President and remove him from his office.
The Supreme Court could step in though, and issue a writ of mandamus ordering the President to enforce the law. If he disobeyed that court order I think that would constitute a statutory crime (perhaps contempt of court? Or maybe something else?) for which he could be locked up. Disobeying a court order is generally held to be a crime, that’s why Nixon ultimately had to give up his tapes, in their decision against him they specifically ordered that it be done. So, while he knew releasing the tapes would probably make his crimes known, if he didn’t, he’d be committing a crime right in front of the entire country. It was basically a checkmate situation.
As for war powers without a declared war:
If you don’t like wikipedia it links to a Yale website, and it also gives you all the information you will need to go read the text of the resolution itself over at THOMAS.
The War Powers Resolution limits the President’s ability to wage war without a congressional declaration. The fact that the law LIMITS this power, but certainly doesn’t remove it, makes it obvious that the President has war making powers absent a declaration of war.
Quote:
Bolding mine. Even if I agreed with your rational I think the differences between Nations [with borders, a government, ambassadors, etc] and various similiarly aligned terrorists groups [organic leadership when it exists, scattered, etc] are drastic enough to render the comparison meaningless.
That is an interesting objection but I still don’t think that consideration beats out the logic in Bas. Al Qaeda has (had) a formal hierarchy, organized military unit and land under its control. They are certainly an organization that can effectively wage what can be considered as war. While it is not a traditional country it is certainly an organization that can effectively wage war. Sure its not anything that resembles conventional warfare with armies and such but unconventional war is still war by any reasonable definition of the word.
Does its lack of ambassadors or borders prevent Al Qaeda from waging an effective war? Sure it makes it a lot harder for us to attack them but they can still effectively attack us. Again, they attacked us and we bombed the crap out of them and conquered the land under their control. If attacking us and killing Americans does not make Al Qaeda an enemy by any reasonable definition of the word then what does? If sending an army to a country and bombing the crap out of them does not constitute war by any reasonable definition of the word then what does?
I think a key point of disagreement involved here is that the while you reference an Al Qaeda organization with established territory, organized military and a formal hierarchy [which it could argued would constitute a sort of mini nation-state], the state of war that is purported to exist in the United States is not between the U.S. and this notional enemy. Instead, the purported war is between the U.S. and Terrorism and this is simply not sufficient to justify a “State of War.”
For a state of war to exist there must be an actual, distinct enemy. Even if we narrowed down the definition of terrorism to mean only anti-U.S. Islamic extremist terror groups, or heck, organizations which fall under the support umbrella of Al Qaeda this would still be too amorphous a group to justify a State of War.
While I don’t think anyone would disagree that Al Qaeda and the multitude of similar groups are enemies of the United States I don’t think their existence is sufficient to qualify for a state of war.
FISA Section 1809, which states:
What would be a better term for you? An Oopsie?
I think a $10,000 fine and up to 5 years in prison could be considered “punishment”.
Will you reconsider now? Note that I am not arguing that Bush will be indicted, or that he will bear criminal responsibility, for this fiasco, but there is certainly a law being violated.
The Constitution is not a criminal statute. Violating the Constitution does not, in general, result in criminal sanctions. Violating FISA does.
While it seems pretty clear that the President does have some “war making powers”, those powers are not without limits. SCOTUS in Hamdi pretty much said that. It is my position that whatever nebulous “war making powers” the President has, does not include the unchecked power to wiretap citizens absent judicial oversight.
There’s no reason to be aggressive here, I’m not a lawyer nor am I conversant in FISA. I was genuinely requesting someone provide a statute, and was assuming, until one was presented, that it wasn’t specifically labelled a crime.
Not sure. Is it a a criminal action to approve a policy in which other individuals break the law? Bush didn’t engage in the wiretapping, the act specifically says it’s criminal to engage in said wiretapping except in cases approved of by statute, Bush didn’t do that, some nameless Joe working for the NSA did.
Yes, but until they are adequately defined I don’t think it’s something people should be taking such a hard line stance on like DtC does. I consider them still “up for decision” and I think we do need to flesh out what the President can and can not do to a greater degree, I certainly don’t think the issue is settled as or as black and white as others do.
Ask Charles Manson.
I apologize if my response was too aggressive. I took your post not as a request for information, but as an assertion that no law was broken. I had assumed that it would be hard to have ignored the role of FISA in this debate.
Generally, a person will bear criminal liability for the actions of another if they have the intent that the crime be committed and aid or abets in the commission of the offense. By signing the order and ordering the NSA to conduct the surveillance, Bush could bear accomplice liability. Of course this is all whistling under the bridge because there is no way in heck Bush will be indicted or impeached over this, but there is an argument to be made. Of course, he could argue that he acted on the advice of the A.G. and within his Constitutional powers, so he should not bear criminal liability also.
There are arguments on both sides. Bush’s position seems to be that he and his administration did not violate FISA because they had authority to conduct unchecked wiretaps under the Authorization of Use of Military Force. Personally, I think this argument is completely unpersuasive. Their backup, and the argument that I think will be their fallback position, is that the President has the power to exercise unchecked wiretaps under the Constitution. This argument seems to ignore the Youngstown case which discussed the “inherent power” argument in another realm of President power.
So, yes there are arguments on both sides. Just as there are in almost every criminal case out there. However, I find Bush’s arguments completely unpersuasive.
Well reading this recent decision by the United States Foreign Intelligence Court of Review, (which references many other SCOTUS decisions and et al. which you can read about in the link) the Supreme Court has held that the President indeed has inherent authority to approve wiretaps (or virtually any type of surveillance) when the purpose is foreign intelligence.
It would seem to me, from what the Bush administration has said, this appears to be their justification. Because they have said in their statements that anytime the information was to be used for criminal prosecution they sought out the appropriate warrants.
Keep in mind what Bush/the NSA has actually done here. They’re basically engaging in passive monitoring for ostensibly intelligence gathering purposes. And there appears to be some Supreme Court support for the concept that the President can do that without any form of authorization from congress as part of his inherent authority. Which means that it’s possible FISA can only apply in cases in which the President’s inherent authority does not apply, or worse yet (for the opposition) it could mean FISA is actually a statute that exists in contravention to both the Constitution and rulings by the United States Supreme Court.
Here’s an interesting quote from the court decision I’ve linked (since it is on page 48 of that .pdf file I’ve quoted it here for convenience):
I don’t necessarily know that I buy Bush bearing accomplice liability. Bush, I’m fairly certain, was not party to any of the specific acts of surveillance. Nor do I think he knew about them. He knew that a certain class of surveillance was being conducted (warrantless on international calls) but I’m betting he didn’t know anything specifically about any of these cases unless he was briefed on the information the taps had recovered, which even then would be knowing after the fact and thus Bush wouldn’t have been actively involved of the wiretapping itself, he would just be knowledgeable as to the results of said wiretapping.
I also think there are unresolved constitutional questions that arise out of this:
-Can we be sure, that currently the President giving an order which may result in illegal actions is necessarily in and of itself a crime?
-If the President takes an action believing it to be under his constitutional authority, when it is in fact not, does that constitute a crime? I’m not sure it’s the best policy to start treating these situations as crimes. If checks and balances are to work then we have to expect the branches to brush up against one another at different times.
When Congress passes an unconstitutional law, the Supreme Court strikes it down, Congress is not considered to have been acting illegaly simply because what it did was countered via the Judicial branch. So why should executive action that is retroactively deemed unconstitutional be declared a crime? I think to some degre we need to remember that the executive branch is a branch of government and not synonymous with George W. Bush.
Furthermore we need to ask ourselves is it wise policy to start prosecuting sitting Presidents for actions they take, that they clearly believe are in the interests of national security, or that are mlitary in nature; with the caveat that these actions are taken in a manner that is consistent with the President believing they are in national security?
Could this not create a dangerous situation, if allowed to go too far, in which future sitting Presidents are unable to properly carry out their Oath of Office for fear of being prosecuted every time they mess up?