Such as when Bush maintains that one of his nominees to the Supreme Court is a strict constructionist who shares his judicial strict constructionist philosophy yet consistently takes the approach that many of his asserted Commander-in-Chief and Executive powers, clearly not foreseen by the Founders either in treatise or text itself, are nearly without check or review?
You just blew my mind!! My head is spinning like a top!
What’s really irritating about it is that I’ll readily admit I may very well have missed some part of the story. I asked for cites specifically for factual content so that I might be “relieved of my ignorance”. Given a cite, I feel it’s my obligation to consider it; of course, I think it’s the poster’s obligation to at least make sure the fucking cite is relevant.
At this point, I’ll assume that all my understandings were on the mark, and that both Mr. Moto and smiling bandit are simply partisan dicks with thier heads up their collective ass.
A rather neat trick for a dick; one might say they must be really big dicks to anatomically manage such a feat.
Well, clearly, Bricker is simply suffering from a case of fraternal fevered imagination. You should be welcoming him to the librul camp. 
I feel good. After all I was involved in a rather “spirited” discusion in which I claimed Bush’s actions were illegal, and was strongly disagreed with. Damn I feel good now.
Heh. Good one.
I wouldn’t expect you, sir, to note the subtle differences between a tu quoque and legal precedent. But for those that can understand these, I invite you to read In re: Sealed Case No. 02-001, a decision of the FISA Court of Review.
This decision not only has to deal explicitly with the Truong precedent, it finds in that precedent and others inherent executive authority to conduct warrantless searches of this type, with or without the FISA act.
Here’s one of the problems I have with all of this. The Bush administration claims it’s using this warrantless wiretap system for foreign intelligence gathering. But from what I’ve heard, I’m getting the impression that this includes the tapping of American citizens’ phones, when talking domestically, who have at some time in the past given an indication of some connection with Al Quaeda or some other unspecified “threat.” In other words, if Uncle Mo lives in Saudi Arabia and is suspected (NOT convicted, just suspected) of terrorist activity, and he calls me, they might then wiretap me domestically because I’d had contact with Uncle Mo.
I still don’t understand why it would be so hard to get a warrent within the 15 day limit - why this is so essential to the so-called War on Terror. If the evidence justifying a tap isn’t sufficient to convince a FISA court, obviously pre-disposed to agree (they’ve rejected all of five applications in their entire history), what the hell is the justification at all?
But even more importantly, this is an utterly black program. There is absolutely NOTHING to stop the Bush Administration, or even some rogue member of it, from getting taps on political enemies or random citizens. And, forgive me, Bush-supporters, but this administration in general and Dick Cheney and Karl Rove in particular have demonstrated a delightful penchant for petty vindictiveness (Valerie Plume, anyone?), and misleading to the point of lying (WMD in Iraq for starters). Congressional oversight by a handful of additional members? Bah. They aren’t going to press - they’ll roll over and play dead as soon as they’re told “We can’t give you details because it would threaten National Security.” So why are we ALLOWING this to happen? Can they point to a *single * benefit this program has actually brought to the country?
The American citizens boggle my mind. They’re all up in arms because the DPW (a government organization from a state which amounts to a corporation and almost certainly has no interests but the standard one of making every cent they can) wants to administer American ports, yet they don’t give a shit about protecting the very liberties that make us what we are as a nation.
And **Bricker ** and Mr. Moto, I don’t understand you either! What makes you so willing to tear down the nation in order to “save” it? Don’t you care about the fact that the single most important thing distinguishing the US from other nations is the very civil liberties and protections you’re so willing, nay eager, to give away? So you trust Bush. God knows why, but fine - you’re entitled to trust whomever you wish to. But are you so sure that future presidents will be so trustworthy in your mind? Because this doesn’t just end with this administration, you know.
Mr. Moto, that… doesn’t mean what you say it means. The excerpt is incomplete, and has to do with additional restrictions in the case of wiretapping of a agent of a foreign power. That sentence has to do with the primary purpose test, in relation to the Patriot Act, after evidence has been supplied to the FISA court.
It has to do with the shift to a criminal prosecution, and points out that counterintelligence issues continue even during criminal prosecution.
It does not handwave away the FISA court. Indeed, the very next sentence asks if FISA amplifies the president’s power by providing a classic warrant situation.
It has little to do with warrantless wiretapping of american citizens who are not agents of foreign powers.
I am sad to say that I now think you are not very smart, and a willing asshole to be shamelessly used by the right. I am sorry about the passing of this circumstance, but nothing else can explain your recent actions. Whoever guided you to this matter and this document and explained it to you lied to you. What you have in a huff brought to us has to do with whether information gathered in surveillance can be used in a criminal proceeding - what is the “primary purpose,” as they say repeatedly.
(bolding mine) Where “this type” refers to (per Wikipedia)
Nobody is contending that an agent of a foreign power who is not a US person who is engaged in espionage is not to be subjected to a warrantless wiretap. This is particularly if such surveillance occurred prior to the enactment of FISA. So your efforts here are either a tu quoque, a red herring, or a typical ham-fisted bullshit rightwing effort to distract from the critical examination of Republican shenanigans.
You have also misstated the impact of your own cites. In fact, your very own cite says on page 39:
Meaning that this decision explicitly recognizes the need for warrants in all cases, barring limited exceptions, which **aren’t even at issue ** in this decision. Asshole.
Sure. However, FISA itself is constitutional only if it does not interfere with the president’s warmaking powers as laid out in Article II. The FISA Court of Review, which handles FISA appeals, explicitly states such, as does other case law.
Those powers are quite broad indeed, and have in the past always included broad authority to conduct espionage and internal surveillance.
It is certainly a mistake to regard the Bush administration’s actions here as unquestionably illegal, given all of this. It is more accurate to say there is a conflict in the law that should be resolved. It seems that is is being resolved in favor of surveillance being conducted with congressional review, which would be correct given existing constitutional roles in warfighting.
I have not seen one single argument put forth as to why FISA is insufficient. What impediments has FISA put into place that have hindered our ability to conduct surveillance? FISA seems a thoughtful and comprehensive effort to balance our need for security with a protection from unwarranted spying on everyday Americans. Can you present any such argument?
As E-Sabbath points out, your abbreviated excerpt is misleading (at best). For those who are actually going to read the case, the next sentence (bottom of p. 48) is:
However, thinking about it, none of this actually addresses my original question:
Now, I suppose one might say that my objection was unclearly worded, which I can accept – it’s my obligation as objector to be clear. What I was looking for was whether “this” (i.e., warrantless wiretapping) “has been going on for years under multiple administrations”. The Truong case is (obviously) tangentially related, but doesn’t answer the question. The very fact that events in Truong took place prior to the passage of FISA rule it out as an answer. I only wish I had not fallen for the bait and switch earlier.
So, more succinctly: Has there been a spate (as implied by smiling bandit, not just a single incident) of warrantless wiretapping of US citizens since the passage of FISA (during the Carter administration)? Note that to answer this question, the actual constitutionality of FISA doesn’t matter a whit. The question is: has warrantless wiretapping “been going on for years” or is this a Bush novelty?
The answer to this is, IMO, obvious – if domestic warrantless wiretapping “had been going on for years”, the “wall” between foreign and domestic surveillance would not have been an issue.
Bricker, as someone who can argue any side of anything, let me ask you to again take the president’s back and answer this:
If Bush believed that warrantless wiretapping of American citizens was legal, why did he state (paraphrased): “Wiretaps require a court order. Nothing has changed.” ?
And, just to be even more clear, my original request for citations was prompted by smiling bandit’s pooh-poohing of this as an issue, relying on the usual Republican they did it too justification (which I find extremely tedious, irrelevant, and irritating).
No, it’s my understanding that “they” didn’t do it at all.
There is no “conflict of law”, there is a sad, and ultimately legally insufficient, attempt to justify, after the fact, Bush’s wiretapping of US citizens. All these issues, all these red herrings that the right has thrown up were raised, debated, considered, and dealt with over 25 years ago when Congress enacted FISA. At that time, the Justice Department agreed with Congress that they could regulate the area of foreign surveillance. And your “cites” to Truong and Sealed Cases both support the fact that FISA is not unconsitutional.
The President does have the power to conduct foreign surveillance. This power, which is not even specifically enumerated, is not absolute. A good example is the use of torture. This administration had originally made the exact same claim, saying that the President has the inherent power to ignore statutory prescriptions against torture. Even they had the brains to finally reject that argument, yet they still cling to it in this arena, mainly because, as pathetic as it is, it’s all they got.
I am encouraged to see the change in the right from “it’s absolutely legal!” to “it’s an unresolved legal issue”. It gives one hope that, maybe, just maybe, we could get to the bottom of this with a Congressional investigation. And then the Republicans wave their hands, abandon critical thinking, and fall back into the party line. Bunch of fucking cowards.
Hamlet, you are my fucking hero. I agree there is NO conflict of law. The LAW says words to the effect of “get a warrant in x number of days”. Period. Further, the argument from claimed “textualists” that some “unitary something or other” takes precedence over the black and white text, is laughable.
Finally, the cowardly attempt by partisan politicians to make all this legal After The Fact, is too close to the Nixonian argument of “it’s legal if/because I do it”.
You have way too much faith in Congress and Congressional investigations. As you’ve pointed out, this isn’t really a factual dispute where more evidence or testimony would point to one conclusion over the other. This is a legal/constitutional dispute that comes down to opinions. While one opinion may have much more of a basis than the other, the most a Congressional investigation would do would be to find that the warrantless wiretapping of US citizens during a time of war was not an exception to the FISA act and find that any such wiretapping program from that point forward would be illegal.
The unfortunate fact is that there is not a whole lot that can be done in this situation. Nobody knows for sure if their rights are being violated, nobody knows if they’ve been tapped, nobody can sue to enjoin the President’s actions, and nobody is going to prosecute under FISA. The only realistic event I can see happening that would even begin to challenge the President is a real, dedicated Congressional investigation, complete with subpoenas, oaths, and possible perjury charges. It is the only thing that I can see that is realistic and just might hold the President accountable for his actions. It is the last straw of hope I hold.
But even I think it is unlikely to amount to anything. As I said in another thread: Here’s my prediction, so take it worth a grain of salt. Congress will continue it’s investigation for a little while, calling law professors, constitutional lawyers, and maybe a flunkie or two. While the investigation is dragging on, a bill will be passed through both houses, and signed by the President, that would amend FISA and allow the President to do what he is doing now. The investigation will peter out because nobody really cares, and becausee nobody wants to be painted by this administration as being soft on terrorism. Nobody will give a shit that the President violated the law, no one will be prosecuted, nobody will be impeached, and nobody will care. Republicans will claim victory, Democrats will be portrayed as whiny terrorists sympathizers. In other words, just like it is now
Seems I was wrong and we wouldn’t even get an investigation. There goes the last little hope and respect I had.
Context is all. The President was undoubtedly speaking of wiretapping purely domestic conversations.