The point is that while the president has this wonderful FISA court to rubber-stamp surveillance, and it can even do so after the surveillance has started in case of an emergency - he’s bypassing even that feeble system of control. The only reasons to bypass FISA are if you have credible evidence that the court is leaking intelligence or if you know that your request for a warrant is going to be so flimsy that even they won’t approve it.
Nothing to add to the substance, but just wanted to add my props to J. Anna Diggs Taylor who issued the ruling.
I’ve appeared before J. Diggs Taylor several times - she’s a real trip.
Carries her years very well, and doesn’t mind leaving her gown open to show a well-turned leg in high heels as she clacks down the interminable hallways of that hellhole that is the EDMich courthouse in Detroit.
She (and her ex-husband) have been features of Detroit for years.
Glad to see her scoring one for the good guys!
This statement by President Bush, assuming it is his accurate view not just political rhetoric, shows that he entirely misses the point of not just the ruling, but the Constitution. He seems to think that the only branch of government “whose responsibility it is to protect the United States” is the Executive. He misses the point that under Constitutional separation of powers, Congress and the judicary all share responsibility for protection of the country. This ruling (like Hamdan) rejects the Bush administration’s “Unitary Executive” and makes clear that all branches of government have responsibility for fighting terrorism.
I think that the Bush admistration feels that the fight against terrorism must somehow take place entirely outside the normal criminal law process, and thus has convinced itself that none of the usual Constitutional criminal rights (e.g. warrants, forced self-incrimination, cruel and unusal punishment, detention without trial) apply to potential terrorists in any form. I think that the administration has tried mightily to avoid having these issues come before the courts, and that until now the courts have largely ruled to avoid having to directly having to challenge the administration. It’s only now, when more of the administration’s programs are coming out, the political tide is turning, and courts are finally being forced to face the issues squarely that the administration’s facade is crumbling.
By the way Bricker, I’m in on the bet if we can pick what we are wagering.
Well said. In fact the very first power of Congress in Art. I Sec. 8 is “To lay and collect taxes [etc.] … to provide for the common defense and general welfare of the United States.” And one important job of the Executive is to faithfully carry out, i.e. execute, the instructions given by Congress in the form of laws.
That much is obvious. I find myself wondering why. Is this whittling away at civil liberties an ideological thing? Are Bush and his team opposed to such things on principle? Or is W really stupid enough to believe such unprecedented standards are necessary to fight terrorism effectively? Or does he think of terrorists and/or foreigners as beyond the pale, as persons to whom no duties are owed, persons with no rights America is bound to respect? Or is he simply a control freak taking every opportunity to grab more unaccountable power? Or . . . just possibly . . . is the Admin laying ground to acquire a much wider latitude in dealing with domestic opposition?
Given the recent news about the administration’s utterly ridiculous decision to classify as secret formerly public information about Cold War missile stocks, I say “control freak.”
You may have put your finger on the problem, Dave. GDub’s experience as Governor of Texas has confused his understanding of the word “execute”.
I’m in the process of reading Conservatives Without Consicience by John W. Dean. So far it would appear that the research in social and political science begun in the 1950’s that identified authoritarian follower/social dominant personalities fits GW and the neocons It’s entirely possible that GW really believes that the only way to run a country is to have a single, powerful executive who can do whatever he or she feels is needed. In short, an all powerful savior.
Well, you can’t argue with success. Look how successful Texas’ death penalty program has been in reducing crime in Texas. 
I think that the Bush administration genuinely thinks that fighting terrorism is different.
The administration’s rhetoric is that after the 9/11/2001 attacks, everything changed, and I think that reflects the President’s views on the matter. The attackers were not merely criminals, but monsters of some sort, with the power to infect and destroy, who must be stopped by any means necessary. (I think that the brand of fundamentalist Islam that inspires suicide bombers is particularly incomprehensible to someone with the strong, focused born-again Christian worldview that many in the administration have.) I believe that the administration feels that the terrorists are fundamentally different than the ordinary criminals who are going through the regular criminal justice system, and therefore must be treated under different rules (or rather without the rules that would otherwise apply). Although the administration no doubt feels that the ordinary Constitutional criminal protections given to criminals are too protective, that issue is in an entirely different universe than the “war” against terror which the Commander in Chief needs to be able to prosecute unfettered.
I think “incomprehensible” might be the wrong word there.
Bush’s people are assuming the right to classify information that preceded their term. This is over reaching to me on a grand scale. Maybe Iran contra is unavailable now. Who knows where they stop.?
I predict the limit will be reached at some point after REDACTED BY DEPARTMENT OF HOMELAND SECURITY but before REDACTED BY DEPARTMENT OF HOMELAND SECURITY, but then again, I used to think that about REDACTED BY DEPARTMENT OF HOMELAND SECURITY, and look where we are now.
I wholeheartedly agree.
I agree with your position overall [that laws need to keep pace with technology] and this could be a reasonable argument for why the administration’s Wiretapping program is a good idea.
The one point not made though is not why is it legal.
*
Should* be legal? Perhaps. * Is* legal? No.
How about a bottle of single-malt scotch, winner’s choice as to brand, not to exceed, say, $50?
By the way, Dick Posner’s editorial in the Washington Post may give some sense of where he leans on the overall issue.
Posner, IIRC, sits on the Seventh Circuit, so perhaps this is not of earth-shaking importance. But it’s interesting.
Done. And I’ll buy you a drink in any event if you wind up in New York.
Posner’s article is an interesting think piece about what we should do on terrorism, but doesn’t address the issue here, who should determine what anti-terrorist legal apparatus we should have. It is clear that any US anti-terrorism agency like MI5 would have to be authorized under Congressionally-passed law.
And how is that not a Dick Tater?
-Joe
Just to continue on my little asides of federal judges I have known and loved, I assume it goes without saying I firmly believe that in Posner’s mind he has always been the smartest person in any room he has occupied. And he is so comfortable with that knowledge that he feels the need to share it with everyone. Moreover, he is fortunate enough to be a genius on every subject he has ever encountered. I have not encountered another federal appellate judge who - IMO - was ruder towards attorneys than Posner.
An irritating habit of writing opinions which appear primarily aimed at furthering his beliefs and interests, and have unfortunate implications on those who have to apply them to an ongoing caseload.
Speaking of Posner, can anyone name the 3 Dicks on the 7th Cir?
Posner, Cudahy, and Easterbrook.