IS IT IMPEACHMAS YET?Surveillance reserved for overseas?This bug's for you...

[RTFirefly]

@Bricker

But the Court in Bas went on to find that Congress had “by its acts and declarations” created a state war with France. And they did so without ever saying “We declare a state of war exists between us and France,” or anything similar.

So was the 1798 “war” with France declared? Or not?

You mean a ‘state of war’, don’t you?

Oh, and will you kindly start providing initial full cites, or links at least, for court cases? It’s really obnoxious when you bring up the short name of a case as if we non-lawyer types of course know it.

Anyhow, so what? Once again, they say war existed, even though not declared. But do they say it was a declared war? They don’t seem to, and nobody else thinks it was either, AFAICT.

[Bricker]

@Fat Chance

Wait a minute. You would agree that the intent of congress (and therefore the wording of the law) was to not allow the President to do what he is doing?

But a few posts up you told us all that our reading of the law was “absurd”

“Absurd” is a legal term of art; it means a result that was not plausibly intended by the legislature. And I used it to refer only to the fifteen days issue, not any other interpretations offered above.

It’s not unreasonable to imagine that Congress intended the wiretapping powers of §§ 1811 only to apply to a “declared war” as that term is used in the War Powers Resolution.

If I had to make the call in the context of an injunction or declaratory judgement, I’d find that Congress so intended.

If I had to decide whether violation of that constitutes a criminal act, I’d find that it did not, assuming the accused testified that his understanding of the law was similar to what I’ve sketched out above.

Do you see the vast difference between the two applications?

[John_Mace]

@Bricker

Nobody interviewed Cass Sunstein, law porofessor at the University of Chicago, except the LA Times, I guess. They quote him as saying, “I think the authorization of use of military force is probably adequate as an authorization for surveillance.”

We know there are legal minds out there that think this is OK. Some of them reside in the Bush administration. Does your post mean that you **would **like to bet on the ulitimate legality of this action?

[treis]

Note, the quotes from Bricker are from the thread in the Pit.

@Bricker

In that example, there is no absurdity rendered by the conclusion that the legislature intended to create a single fifteen-day period for trout fishing.

It’s absurd, though, to conclude that Congress intended a war of any kind to be over in fifteen days, or intended to supply the President with authority for wiretaps only during the first fifteen days of a war that was going to last longer.

You are obviously saying, “Why does it matter if it’s absurd: the clear language of the law says something, so that’s that.” But - no.

Its not absurd for Congress to give the President emergency powers at the beginning of a war. The beginning of a war may be an extremely hectic time and it may be impossible to set up the necessary judicial oversight for these wiretaps. It is reasonable to temporarily suspend judicial oversight in favor of effectively prosecuting the war in its early stages. It is also reasonable to require judicial oversight after a period time in which an effective mechanism for that oversight could be put in place.

@Bricker

o.

§§ 1811 refers to a declared war, but never defines what that phrase means. Bas v Tingy shows that Congress did “through its acts and declarations” create war with France. But you cannot point to a Congressional resolution for the war with France that has your magic phrase in it. Yet it was through the acts and declarations of Congress that the state of war came to be. Did we “declare war” on France in the year 1798 or not? Yes, by the ordinary meaning of the war. Yes, by the meaning of the laws being interpreted in Bas. And yet Congress NEVER “declared war.” If the War Powers Resolution existed then, the “war” with France would have been merely an authorized use of force, NOT a “declared war.” Yet the Court found that for the purposes of laws governing the seizure of property from the enemy in times of declared war, THAT was a declared war.

In other words, the word “declaration” is not magical. Congress may declare a war, in ordinary meaning, without saying, “We declare war,” and that sort of declaration, while not meeting the requirements of the War Powers Resolution, certainly meets the ordinary, everyday meaning of “declared war” – the kind of meaning that’s called for in §§ 1811.

No, that is not what the Justices said in Bas. What they said was that even though no state of war was declared by the actions of Congress the hostilities between the two nations constituted war. From the ruling:

there may be a public general war, and a public qualified war; so there may, upon correspondent principles, be a general enemy, and a partial enemy. The designation of ‘enemy’ extends to a case of perfect war; but as a general designation, it surely includes the less, as well as the greater, species of warfare. **If congress had chosen to declare a general war, France would have been a general enemy; having chosen to wage a partial war, France was, at the time of the capture, only a partial enemy; but still she was an enemy. **

Congress in this case did not declare war but it is true that there was a war going on between France and the USA. If 1811 had said “following a state of war” then Bas would support your argument. But 1811 does not, it says “following a declaration of war by congress.” Lest you think that advocating hostilities constitute a declaration of war Bas disagrees:

This is true; but neither of these things were necessary to be done: because as to France, she was sufficiently described by the title of the French republic; and as to America, the degree of hostility meant to be carried on, was sufficiently described without declaring war, or declaring that we were at war. Such a declaration by congress, might have constituted a perfect state of war, which was not intended by the government.

Bas recognizes that there may be a state of hostilities that do not rise to “perfect war” and that congress might intend to advocate hostilities but not declare war. The war in Afghanistan is not a perfect war as described in Bas nor did Congress intend it to be. It is possible for Congress to advocate war on someone with out declaring. That is what chose to do by passing the authorization of force and that is seperate from declaring war.

[Polycarp]

@Bricker

Whoa.

Completely different scenario.

Criminal law is construed strictly against the prosecution. I am arguing that the President is not guilty of a criminal offense.

If I were a judge, and the question was an injunction prohibiting the President from continuing this monitoring program, I’d read the text of the law as you suggest and grant the injunction, finding that the intent of Congress was not to permit the President to do what he’s doing.

But to find the President guilty of a criminal offense means that every reasonable hypothesis EXCEPT guilt must be eliminated. If the president can show he adopted my reasoning, he’s not guilty of a criminal offense.

Do you understand the distinction?

However, the overarching scenario of this thread relates to impeachment, not to criminal trial, and the precedent has been set (both times by the Republican majority in the House, as it happens) that a specific criminal act committed by and proven against the President is NOT necessary for a valid impeachment.

I may be misconstruing the tenor of your post, but on the presumption that it relates to the potential impeachment of Mr. Bush, that would be my rebuttal to your argument.

[Fat_Chance]

@Bricker

“Absurd” is a legal term of art; it means a result that was not plausibly intended by the legislature. And I used it to refer only to the fifteen days issue, not any other interpretations offered above.

It’s not unreasonable to imagine that Congress intended the wiretapping powers of §§ 1811 only to apply to a “declared war” as that term is used in the War Powers Resolution.

If I had to make the call in the context of an injunction or declaratory judgement, I’d find that Congress so intended.

If I had to decide whether violation of that constitutes a criminal act, I’d find that it did not, assuming the accused testified that his understanding of the law was similar to what I’ve sketched out above.

Do you see the vast difference between the two applications?

Yes, I now have a better understanding of the difference, and the point you are trying to make here.

But, I still can’t see how you would find that our defitinion is not a plausible intention of the legislature. In fact I find your intepretation to be pretty darn implausible.

As treis basically said above, I think it is entirely plausible that the law was intended to temporarily suspend oversight in the beginning of a war, and for that suspension to have a set time limit (15 days). After that point, there should be a better idea of who and what intelligence they are after, can get warrants, or in emergencies take advantage of the 72 hour window. Can you tell me why this doesn’t sound like a rational law?

I find it less plausible that the legislature intended to grant the president very long term, vauge, secret, open ended powers with little to no oversight at all. Can you understand why I don’t think that is a rational law?

[Fat_Chance]

Just a little further back-up, aka. people smarter than me who interpret this 15 day thing the same way I do:

From a Salon article written by a Georgetown law professor:
“In FISA, Congress expressly addressed the subject of warrantless wiretaps during wartime, and limited them to the first 15 days after war is declared.”
http://www.salon.com/opinion/feature/2005/12/20/spying/

From a George Washington law professor:
“…it depends upon when the surveillance took place. If it was beyond the 15 day period, then the provision no longer applies.” (notice that he says “when” not “how long” the surveillance)
http://www.concurringopinions.com/archives/2005/12/so_whats_bushs.html

Now I know Bricker is a lawyer, and just because these guys are lawyers/professors doesn’t make them correct, but it sure does make it seem like this interpretation is not implausable or absurd (to use Bricker’s legal language) if people like this are seeing it that way.

[PatriotX]

@John Mace

Although the Bush administration is claiming that members of the Senate Intelligence Committee (both parties) were made aware of what it was doing.

Here’s some evidence backing up that claim

[John_Mace]

@PatriotX

Here’s some evidence backing up that claim

Thanks for the PDF warning…

Yeah, Andrea Mitchel was touting that on Hardball today. But Bush never said he asked for feedback, just that he had briefed key members in Congress. At least you can’t say he lied!

[David_Simmons]

@PatriotX

Here’s some evidence backing up that claim

I don’t think FISA reads that you don’t have to get a warrant if you inform some members of Congress of what is being done.

[treis]

I think its pretty clear that Bush violated FISA but there is an interesting argument that FISA places an unconstitutional restriction on Presidental power. Is it not true that the President by being CiC has nearly unlimited power to wage war for the USA. Certainly gathering intelligence on the enemy is a key component of war and thus falls under the power of the CiC. If that is true how can Congress place restriction on the President as the CiC in gathering intelligence on the enemy?

[David_Simmons]

@treis

I think its pretty clear that Bush violated FISA but there is an interesting argument that FISA places an unconstitutional restriction on Presidental power. Is it not true that the President by being CiC has nearly unlimited power to wage war for the USA. Certainly gathering intelligence on the enemy is a key component of war and thus falls under the power of the CiC. If that is true how can Congress place restriction on the President as the CiC in gathering intelligence on the enemy?

The President doesn’t have unlimited authority to do as he sees fit, even in wartime. The Commander in Chief commands the armed forces in conformance to the rules establsished by the Congress for the government and regulation of the land and naval forces. (Art. I, 6.14) The Commander in Chief can’t order the armed forces to operate in violation of treaties to which the US is a party, for example.

[alaricthegoth]

@Polycarp

However, the overarching scenario of this thread relates to impeachment, not to criminal trial, and the precedent has been set (both times by the Republican majority in the House, as it happens) that a specific criminal act committed by and proven against the President is necessary for a valid impeachment.

I may be misconstruing the tenor of your post, but on the presumption that it relates to the potential impeachment of Mr. Bush, that would be my rebutta.

Cf:the Andrew Johnson Impeachment . "High crimes and misdemeanors ’ does not mean knocking over 7-11’s and indecent exposure at the county fair.

It is enough to fail to “see that the laws are faithfully executed”

Originally Posted by Bricker
Whoa.

Completely different scenario.

Criminal law is construed strictly against the prosecution. I am arguing that the President is not guilty of a criminal offense.

If I were a judge, and the question was an injunction prohibiting the President from continuing this monitoring program, I’d read the text of the law as you suggest and grant the injunction, finding that the intent of Congress was not to permit the President to do what he’s doing.

But to find the President guilty of a criminal offense means that every reasonable hypothesis EXCEPT guilt must be eliminated. If the president can show he adopted my reasoning, he’s not guilty of a criminal offense.

Do you understand the distinction

Likewise, irrelevant to the4 discuission. However, the president HAS violated FISA–whether he has a justification for that violation will be the subject of the Senate vote to convict on the impeachment.

You are also VASTLY exagerrating the reach of reasonable doubt, by mixing in standards for evaluating the strength of the state’s reliance on circustantial evidence to prove up an element of the crime.

You have never tried a criminal case to a jury on the Defense side, and gotten those instructions as a general definition of reasonable doubt, have you?

While we’re on the subject, have you ever tried a criminal case to a jury?

A civil case?

An arbitration?

Workers Comp?

Labor Commissioner’s Hearing for overtime denied, perhap?

.

[treis]

@David Simmons

The President doesn’t have unlimited authority to do as he sees fit, even in wartime. The Commander in Chief commands the armed forces in conformance to the rules establsished by the Congress for the government and regulation of the land and naval forces. (Art. I, 6.14) The Commander in Chief can’t order the armed forces to operate in violation of treaties to which the US is a party, for example.

Why not? The President has the power to make treaties why does he not have the power to declare them void?

As far as operating the military in comformance rules established by Congress I assume you mean:

To make Rules for the Government and Regulation of the land and naval Forces;

I believe that refers to things like the UMJC not limiting the type of orders the President can issue.

[Bricker]

@alaricthegoth

While we’re on the subject, have you ever tried a criminal case to a jury?

BWAHAHAHAHAHA!

Um…

Yeah, one or two.

[alaricthegoth]

BTW, Bricker, whether or not the president had opinions telling him he was within the law is beyond irrelevant.

This is not a specific intent crime. The Corpus is clear, and mens rea is established in completing the act. There is no requirement that the violation be inspired by an intent to deprive or otherwise derogate civil rights. \

Stop blowing smoke up the laymen’s asses, counselor.

I’m guessing that you do estates and trusts–better refer out any little criminal pecadillos that your clients mention to you while your word processor drafts their will.

[alaricthegoth]

how much time did they get?

(those that lived…)

[John_Mace]

@treis

Why not? The President has the power to make treaties why does he not have the power to declare them void?

Emphasis added:

@US Constitution

He [the president] shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur

And he cannot declare them void anymore than he can declare any law void:

@US Constitution

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land

[alaricthegoth]

how much time did they get?

(those that lived…)

[treis]

@John Mace

Emphasis added:

And he cannot declare them void anymore than he can declare any law void:

No there is a difference. Congress makes the laws and once the President approves that law he can not revoke it. Since Congress made the law they have the power to change the law. It is reversed in the case of treaties. It is the President that makes those treaties and the Senate that consents to them. Since the President makes the treaty he has the power to change or void it.