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

[Bricker]

@Polycarp

No, the legal principle is that Mr. Bush is responsible for the acts of those who serve under him, unless he explicitly disavows illegal actions of which he had no knowledge. In his own words, “It happened on my watch.”

Morally responsible, certainly.

Criminally responsible? No.

[Bricker]

@E-Sabbath

Bricker? How would you consider these assertions of Bush’s, in regards to the Truman era Youngstown vs Sawyer?
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579

Not applicable.

Truman pointed to a general constitutional authority to seize steel mills, which the Court said didn’t exist.

Bush points to a Congressionally-authorized use of force, which provides his authority to monitor communications with hostile entities as a “…so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” (Hamdi v. Rumsfeld).

[Polycarp]

@Bricker

Not applicable.

Truman pointed to a general constitutional authority to seize steel mills, which the Court said didn’t exist.

Truman claimed the authority not as “a general constitutional authority” but in specific reference to the strike crippling production of war materials during the Korean Conflict, at a point when nobody was sure that it wouldn’t escalate into total war.

Bush points to a Congressionally-authorized use of force, which provides his authority to monitor communications with hostile entities as a “…so fundamental and accepted an incident to war as to be an exercise of the ‘necessary and appropriate force’ Congress has authorized the President to use.” (Hamdi v. Rumsfeld).

So United States citizens have become “hostile entities” now? That in itself is truly scary as an indicator of the Bushista mindset. Only one previous President saw citizens of contrary political views as “hostile entities” in this sense, and I truly feel that making him Mr. Bush’s precedent would be the biggest mistake imaginable.

[Bricker]

@Polycarp

So United States citizens have become “hostile entities” now? That in itself is truly scary as an indicator of the Bushista mindset. Only one previous President saw citizens of contrary political views as “hostile entities” in this sense, and I truly feel that making him Mr. Bush’s precedent would be the biggest mistake imaginable.

No. C’mon, Polycarp. The calls were international. The hostile entities were the people on the other end of the calls.

[ElvisL1ves]

@Bricker

The calls were international.

Except for the ones that weren’t. Those were accidental.

The hostile entities were the people on the other end of the calls.

But not the ones on the US end.

Don’t get mad; those are *your * arguments.

[RTFirefly]

@Bricker

No. C’mon, Polycarp. The calls were international. The hostile entities were the people on the other end of the calls.

FISA says they’ve got to be on this end too, IIRC.

[Bricker]

@RTFirefly

FISA says they’ve got to be on this end too, IIRC.

FISA §§ 1809 forbids electronic surveillance under color of law except as authorized by statute. Any statute. Congress’ authorization for the use of military force to the President is that statute.

[ElvisL1ves]

Do you think that constant repetition will make that true?

An assertion must be *supported * by the person making the assertion, as a wise man once said. Will that support be forthcoming from you?

[Bricker]

@Polycarp

So United States citizens have become “hostile entities” now? That in itself is truly scary as an indicator of the Bushista mindset. Only one previous President saw citizens of contrary political views as “hostile entities” in this sense, and I truly feel that making him Mr. Bush’s precedent would be the biggest mistake imaginable.

Did we not have similar discussions about Hamdi, before the Fourth Circuit and Supreme Court ruled? Didn’t I say that the Hamdi detention was legal, and didn’t the Usual Suspects here claim it was unconstitutional and illegal?

The same reasoning the Court used in Hamdi applies here.

[treis]

@Bricker

FISA §§ 1809 forbids electronic surveillance under color of law except as authorized by statute. Any statute. Congress’ authorization for the use of military force to the President is that statute.

I see, have you dropped the FISA §§ 1811 justification and moved onto the next argument?

[Hamlet]

@Bricker

The same reasoning the Court used in Hamdi applies here.

With the slight exception that in Hamdi, the President was detaining a person captured in a foreign combat zone, and in this case, he’s wiretaping a citizens telephone. Oh, and the Hamdi opinion by O’Connor stated: " We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker. " Oops, no such neutral decision maker for these wiretaps. And the Supreme Court relied on Quirin, prior SCOTUS precedent, for the proposition that detention is an integral part of warmaking, but there is no precedent for surveilling citizen’s telephone calls. Other than that, it’s spot on.

[furt]

As an aside:

@Bricker

I don’t think I have ever told that story here. Perhaps someday I will. …
More on that if I ever post after three or four simgle-malts.

Please do. Not in the next week, as I’ll be away, but sometime after 12/29.

[Leaper]

To add fuel to the fire, here’s a long legal analysis from a source who, as soon as I saw it, I knew what he’d say about its legality. Now, this doesn’t get into at all whether he’s answering the right questions, or whether this stuff SHOULD be legal or not. It’s just more concrete fodder for discussion.

[SteveG1]

I’m all for Impeachmas.

[RTFirefly]

@Bricker

FISA §§ 1809 forbids electronic surveillance under color of law except as authorized by statute. Any statute. Congress’ authorization for the use of military force to the President is that statute.

Can you cite the specific language in that authorization that authorizes domestic wiretapping without warrants?

[RTFirefly]

@Leaper

To add fuel to the fire, here’s a long legal analysis from a source who, as soon as I saw it, I knew what he’d say about its legality. Now, this doesn’t get into at all whether he’s answering the right questions, or whether this stuff SHOULD be legal or not. It’s just more concrete fodder for discussion.

It’s long, and it was written by Assrocket. That’s two good reasons not to bother with it.

[Sam_Stone]

Don’t know if this is linked anywhere but here’s a link to the Justice Department’s Comments (warning - PDF)

Everyone’s making a big deal about why Bush isn’t just going for a FISA - that it makes no sense because it’s so easy, and almost always granted.

Well… Tonight I was googling for information about FISA, and came across this tidbit from 2002: Hijack Plot Suspicions Raised With FBI in Aug.

An FBI agent and a Minnesota flight school official discussed the possibility that alleged terrorist conspirator Zacarias Moussaoui was part of a hijacking plot before the Sept. 11 attacks in New York and Washington, according to a letter obtained by The Washington Post.

The official with the Pan Am Flight Academy in Eagan, Minn., talked about the threat in a conversation with a Minneapolis FBI agent on Aug. 15, one day before Moussaoui was detained for immigration violations, according to a Dec. 26 letter from the flight school official to the FBI.

…

Investigators in Minneapolis then sought a special warrant under the Foreign Intelligence Surveillance Act (FISA), which requires evidence that the target is an agent of a foreign power, including organized terrorist groups such as Osama bin Laden’s al Qaeda network.

A classified cable in August from the French intelligence service said Moussaoui had radical Islamic beliefs and identified a friend as having fought in Chechnya with an Algerian Muslim group that included a known bin Laden associate, U.S. officials said.

But the French information did not tie Moussaoui directly to al Qaeda or any other terrorist group, prompting the FBI general counsel’s office to rule there was not enough cause to obtain a warrant under the FISA statute, sources said.

Also, here’s a Defense of the warrantless wiretaps by the assistant attorney general under Clinton.

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court’s 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

[Polycarp]

@Bricker

FISA §§ 1809 forbids electronic surveillance under color of law except as authorized by statute. Any statute. Congress’ authorization for the use of military force to the President is that statute.

Electronic surveillance equals military force? And you object to the principled use of substantive due process? I truly don’t understand how you perceive things. (That’s not an insult – it’s abject mystification at when things are strictly construed and when they’re “whatever someone wants the law to be” in your view.)

[John_Mace]

Sam: It’s unclear to me that the Moussaoui case is a failure of FISA. Looks more like an FBI bureaucratic shortcoming. And in our post 9/11 world, I don’t think this type of thing is likely to be repeated.

I heard about the John Schmidt editorial on Hardball today. Interesting that it hasn’t gotten more air time yet. As I said in the Pit thread, this is looking more and more like a classic President vs Congress battle. Neither branch thinks the other can put constraints on it.

[E-Sabbath]

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/22/AR2005122202119.html
Apparently, the Administration asked for war powers in the USA… and was turned down by Congress.