Fair enough. The legality of the issue isn’t easily resolved. I’ve done my cursory research and I think it’s a violation of the Stored Electronic Communication Act.
Actually, from the little I’ve heard about Echelon, I think it is merely the way communications are intercepted, i/e through satellite communications; and not a specific program with a specific purpose or target. It seems to me that it could be put to any use the president so desires, and, apparently, he desires to wiretap US citizens. The gathering of telephone records, to me, seems to be a different facet of the same overall program.[
To be brief, the wiretapping of US citizens clearly violates FISA. There is no exception for “other legal means”, and there is no exception for when the President decides it’s in the interest of national security. They may rewrite the law to allow him to do it, but for over 5 years, this administration has been flagrantly, and, so far unchallengedly, violating the law.
I’m assuming you mean that the President can violate the law, as long as he does so for reasons of National Security. Is that a fair statement?
Once again, I think you misunderstand what Echelon is or does. As I’ve pointed out before, Tenet and Hayden have both testified before Congress that Echelon had not been used to wiretap US Citizens (prior to this administration). While Clinton may have created the means for this administration to wiretap US citizens, that in no way excuses or justifies what this administration has done. It seems akin to blaming Clinton for the invasion of Iraq because he provided money to the military.
I did. He turned me down. He said he was waiting for “someone special” to ask him.
I agree. The actual intent of my question was to help me figure out why the NSA would want the database in the first place. Maybe I don’t know enough about “Data mining”, but how could having the database be of any assistance unless they had a starting number to look at. And if they have a starting number, why can’t they get a warrant or subpoena? It seems to be just a huge way of getting around the need for a court order.
I explained it in detail a few posts ago, but the brief version is that CALEA in no way shape or form allows the president to do what other statutes say he can’t. This idea that CALEA somehow lets the president violate the Sotred Communications Act or FISA is bullshit.
To be honest, like a petty rationalization. My house can be burgled, my car stolen, and my identity taken. But allowing the government to do those things because other people can is just wrong.
Your last sentece is the most telling. In this country, there is a rule of law. If you don’t like the law, use the “representative democracy” and change it. Bush, although he had been offered and have every chance in the world to change the law, chose to break it instead. That is not how things should be done in this country, and it infuriates me to no end watching the President break multiple laws without anyone calling him on it.
I agree that we should know the truth before making final determinations about this administration. Fortunately for those who think like you, this adminstrations stonewalling, disinformation, and secrecy lets them get away with it. The NYT buried the wiretapping story for a year while this administration jacked around and did nothing to honestly confront the situation. This administation hasn’t even briefed the full committee until recently.
The major problem I see is that, second to the Iraq war, this administration is known for its secrecy. I would guess, in 50 years when the final tally is made, Bush will be reviled for what’s he done.
Thanks for that, it is appreciated. As with most things, this administation’s activities cannot truly be judged until a greater amount of time has passed. Which conveniently lets people like you (generally) make excuses and justify this administrations’ actions by saying “we don’t know everything yet.” But we do know Bush violated FISA and SECA. And that’s enough for me to condemn him. And, to be honest, I don’t see it getting any better as more is revealed.
That’s the big question. You already know, my opinion is that the president’s (or the AG’s) request or direction should be in accordance with something - a law, a regulation, some authorizing document already on the books. It should follow the lines of probable cause. It should be in compliance with a warrant either beforehand, or within 72 hours (as is stated in FISA). Along with that, my opinion is that there should be some oversight or regulation by the court - criminal court, FISA court, something. It should be used against some known or suspected threat/suspect.
With the added wrinkle that the news media is under scrutiny this is now “more interesting” to them. They are dropping the “if you haven’t done anything” argument. Some of the rhetoric is about leaks. Which leaks are now illegal? Is it still OK to print “government authorized” leaks that come from and help the White House, or only leaks that embarrass the White House?
I guess since Echelon actually does intercept the actual messages it is a “wiretap.” So, I agree.
Well, two things FISA is the “Foreign Intelligance Surveillance Act.” I don’t know if that means it only applies to international communications or not. Secondly, I think it can be argued that the President has executive powers and that he is charged to use those powers to protect the Nation from all threats foriegn and domestic, or somesuch.
Let us say for the sake of argument that FISA does apply here. Let us also say for the sake of argument that before FISA, the President was empowered to this sort of domestic wiretapping/intelligence gathering under the auspices of the National Defense. OK?
If we accept those two things as true, than the question becomes can an act of law be passed that restricts or removes constitutionally granted Presidential powers and responsibilities. Carter passed FISA. Can Carter pass a law that restricts his Constitutional powers and would subsequent President’s be beholden to that law?
I would guess they would not be. Compliance would be voluntary. It woud not be mandatory without an ammendment.
I think you’re wrong. If there was no exception covered by “other legal means” than they would not have put it in there. The fact they did shows that they acknowledge other legal means.
I’m not so sure. If it’s so illegal than why is the supreme court not hearing the case? Why has there been no serious move to address the illegality of it? Why does it seem most of the statements against it come in a public political grandstanding, sounbite type of forum rather than one with legal teeth?
Hmmmmm. I was going to say “No.” Let me restate this in a couple of sentences. I beleive the President can in some circumstances do this, but that he can and should be held formally accountable to justify himself after the fact. I also beleive Presidential powers derive from the Constitution, and the President is under no obligation to follow allow that conflicts with those powers unless and until the Constitution has been amended.
Now you may think that being obfuscatory and trying to muddy the waters, but that’s what I think. I’m not expert enough to know how this all applies to this particular situation but those are the factors I’m considering. I appreciate your courtesy so far and your sincere response would be appreciated.
Just curious. Do you beleive them? By “wiretap,” I mean “eavesdrop” not “gather call data.” I think there’s been eavesdropping prior to this no matter what they say. I don’t really see how there couldn’t be. Apparently, under Echelon the computers intercept and look for keywords in communications. When they find them, they are given over to human review. My interpretation is that the moment a human listens or reads the communique we have an eavesdropping/wiretap situation.
That’s a fair statement.
On either the first or the second page, I think RTFirefly gave a good summary of datamining. Basically, their looking for who the terrorists have on their “friends and family” list by examining call patterns.
Well then I disagree. I don’t think you can pass a law that restricts a Constitutionally derived Presidential power without ammending the Constitution and hold the President to that law. I don’t think you can do that any more than the President could pass an executive order dissolving both houses and the supreme court and appointing himself dictator for life.
Well, I disagree. Here’s why. Privacy laws seem to my untrained eye to revolve around the expectation of privacy. If the information is in fact not private then there is no expectation of privacy, and hence no violation of privacy by accessing it.
You might be right. Then again. Maybe nobody is calling him on it because the accusations are spurious and cannot be made to stick or would be thrown out if made formally. Maybe the only value of the accusations is as accusations.
Again, I don’t know. I wonder though.
You may be right. I don’t know. I can however conceive of other alternatives that fit the facts just as well.
Honestly? I’m very much afraid that you might be right. I sincerely hope you are proven wrong. I hope that history shows that Bush acted appropriately and followed a path that made the world a better place and that all the accusation were just naysayers and whiners.
That hope has nothing to do with politics.
Well, I seem to recall a leftist criticism about shooting first and asking questions later concerning Iraq that probably could have been better heeded. I don’t see why what’s good for the goose isn’t for the gander.
OK, but it seems to me that from the get go, you automatically assumed it wasn’t illegal and that the entire issue was a baseless liberal attack on the President. To me, that indicates a heavy bias on your part.
Even after the 60 minutes piece and some online articles, I can’t figure out if Echelon is the interception of communications or the computer analysis of said information. So, once again, I have problems with the talking heads blaming Clinton for it.
It lays out a procedure that the government must follow to wireatap domestically. It acknowledges that the interception of foreign communications is, in great measure, a presidential power, but the interception of communications of US citizens in this country can be regulated.
I’ll accept your hypothetical.
The power to wiretap citizens is not expressly granted to the President. There isn’t even a power over all facets of national security in the constitution. And FISA doesn’t remove his power, but it does restrict it.
Yes. That’s kinda how laws work, they don’t just bind the people who signed them. If this administration didn’t bother to change they law, they just went ahead and violated it.
You would be wrong. But I’m interested in how you came to this conclusion, because honestly, I would be amazed if you would make this argument if it were a Democrat president.
There is no “other legal means” in FISA. I think, despite my efforts, that you are still misunderstanding. Where do you get the idea that there is an exception for “other legal means”.
The Supreme Court can’t hear a case without a case being filed. They can’t just say “Hey, you!!! Quit violating the law!!”, there must be a case filed, that makes it’s way through the lower courts before SCOTUS can rule on the issue.
Because your party is in power and they are a bunch of spineless sycophants who are afraid of looking soft on terrorism. There’s a call for censure. There’s been promises of Congressional investigations. But, in the end, your party has the votes, and has killed chances of investigating.
There’s been numerous statements made, from law professors, legal experts, ex-government officials and Congressional aides that consider, in depth, the legal issues and make intelligent, plain-language arguments about why it is clearly illegal. Those kinds of arguments don’t make the paper. It must be that damn liberal media. :rolleyes:
Here is probably the best one I’ve found about the wiretapping issue. Funny how it didn’t make the news.
I don’t want to digress into a Constitutional debate, but, I think this kind of view, that allows the President to violate any law he determines, by himself, should not apply, is problematic and against a great many allegedly “conservative” ideals.
If a President makes a determination that a law somehow unconstitutionally infringes upon his powers, he has a multitude of other options to remedy it, rather than simply violating it for 5 + years. An honest, intelligent, ethical President could try to change the law, could challenge the law in court, or could be forthright in his actions. In this particular case, Congress offered to change FISA numerous times, with this administration consistently stating it didn’t need to be changed, all the while secretly violating the law over and over. It’s dishonest, it’s hypocritical, it’s illegal, and, in my view, it’s reprehensible.
I believe that any eavesdropping done should have been done according to the law, whether done by Clinton, Nixon, or Bush. It is not like FISA said you can’t eavesdrop, it says you can, but you need judicial oversight. A judge has to look at the facts and OK your determination that there is probable cause to listen in on a conversation.
If that is it, get the warrant. It’s really not all that hard to get a FISA warrant. If you have a suspects telephone number, get a warrant to see who they call, and determine who those people are, and continue forever until you get what you need. All I see with the database is another attempt by the Bush administration to do away with judicial oversight.
Sure, if Congress enacted a law saying the President can only pardon members of the Republican party, that’s a clear violation of the Constitution. But there is no enumerated Presidential power to wiretap citizens. Since we’re not talking about a power clearly granted to the President, it is subject to THE LAW. That’s kinda how a Constitution works. Just as President Truman can’t seize all the steel mills in the country in the name of national security, so can’t this President violate the law. And, again, ask yourself if you’d be arguing this if it was Clinton.
Which, in part, was the rationale of Smith v. Maryland, which found there was no expectation of privacy in just telephone numbers. Which is why, way back in the beginning of this thread, I described the obtaining of the telephone records as likely constitutional but illegal. It’s the illegal part I’m concerned with.
But your rationalization falls further apart when you look at the eavesdropping. People can intercept cell phone calls, but we don’t let the government do it. People can break into my house, but we don’t let the government do it.
Which, again, goes back to, what appears to me to be an extreme bias. Since you personally don’t know if the eavesdropping or telephone records are illegal (which I think I’ve made a darn good case that they are), you are willing to accuse anyone who raises the issues as partisan idiots out to only smear the President. This administration, which honed it’s skills in the past two elections, have elevated smearing opposition as weak, unpatriotic, and unable to handle national security to an art form. And the cowards in Congress are scared of that, as well as having the same biases I see in you.
What other alternatives. Has this administration been full of candor and honesty and I’ve just missed it?
Once again, the world isn’t that easy. Even if, in the long run, Iraq becomes a stable democracy, a shining beacon of liberty in the Middle East. Even if, in the long run, terrorism disappears rather than worsens, there is no misuse of wiretapping, and monkeys fly out of my butt. Even if everything Bush touches turns to gold, those people who intelligently oppose him now are not naysayers or whiners. I’d hate to live in a country where there was no opposition to the people in power.
And, I’m right now, and I’ll be proven right in 20 years. Unfortunately, the damage has been done…
That current flows both ways. The assumption of illegality also indicates bias, does it not.
Yeah. Me, too. It’s kind of a shame these top secret programs don’t have websites with FAQs, isn’t it?
I don’t really see FISA as applying domestically. I’m not married to that, and you could convince me otherwise, but it seems pretty specifically about foreign intelligence.
He is charged with defending National Security against threats both foreign and domestic though. I think it’s reasonable that the defense includes trying to figure out what they are doing by monitoring them.
If the President has a constitutional power (it can be any power,) and a President signs a law restricting or removing that power that he has, than I would argue that that law is not binding, as the President is not empowered to change the Constitution. So, if it can be argued that prior to FISA the President has the power (derived from the Constitution) to wiretap in the service of National Defense, than it can be taken away by a mere law. It needs to be ammended in the Constitution.
I don’t think a President can sign a law that changes the Constitution. I think if one President does, than pretty much the method for changing it is to break it, and have it taken before the courts to see if it can be upheld or if it will be declared unconstitutional. I believe that this is the way it’s typically done, and such are called “test cases.” Black people sitting in the back of the bus was law. It got changed because a lady broke the law, it went to court, it got tested and declared unconstitutional.
I think this is the way it usually works. If the President broke FISA, it should be tested in the courts.
This argument isn’t really a partisan argument that I’m making. Hopefully I answered how I come to this stance with my “Back of the bus,” argument.
We seem to be at an impasse. I’ve asked what the other legal means are referred to in the act I’ve cited. You’ve said there aren’t any. I’ve asked why they mention it then, and you just repeat that there aren’t any. I don’t find this assertion of yours satisfactory, and you seem frustrated by the question.
Well then, if those politicians railing at it are sincere why don’t they begin the process unless they are ultimately simple engaging in sound and fury signifying nothing?
You would think that one of them could bring it to the courts instead of playing paper tiger. Frankly, I would welcome this and prefer it to a political “investigation.” I
I know. There’s also arguments that it isn’t illegal. These really aren’t very meaningful unless they are made in court though. It seems to me that if you have a case, then you go. If you don’t, you complain.
I’ll have to check that out tomorrow.
I think he is challenging it and others openly. He even signs laws with statements that he may not follow them. That seems pretty open and forthright to me. I mean of all the criticisms of Bush that you can make, I don’t think lack of forthriteness applies. He makes me cringe with his forthrightness at times.
Didn’t look secret to me. It looks to me more like an open contempt and dismissal of FISA.
Let’s try a hypothetical. It may or may not be far-fetched, but we’ll use it anyway for argument’s sake.
Let’s say you’re the Pres, and you’ve sought FISA warrants before and after the fact in many scenarios. Let’s say that in a particular set of circumstances you’ve been turned down for a warrant several times. That same set of circumstances comes up again and you want to monitor all of a person’s conversations a week from now. Let’s say for whatever reason this one is crucial to the National Security. You need it.
Now, you know from precedent that in this set of particulars you stand a good chance of getting turned down if you seek a warrant beforehand. Do you risk going for the warrant, get turned down, and miss the shot to stop an attack? If you get turned down that’s it. You can’t do it.
The Constitutional authority and powers represent a higher law than the Fisa, and the President has a Constitutional requirement to use them appropriately. He cannot pawn them off and avoid responsibility for acting or not acting, by turning the authority over to another.
The President is an elected official with Constitutional powers. A judge is an appointee that does not have the powers.
But again, what if the warrant gets turned down? Sometimes they do. Isn’t the President still the Commander in chief? Doesn’t he still have his Constitutional powers?
Is there a specific injunction against it? If not, might it be a subject to war-powers or executive orders.
The Constitution is the highest law of the land. If the power is derived from the Constitution (which I’m sure we can argue, but just saying…) than it would seem that it cannot be repealed or restricted by a lower authority. The Constitution would be a higher authority than FISA.
I think I would. I was on Clinton’s side with the “wag the dog,” thing.
I have a problem with understanding “Constitutional but illegal.” To me that sounds like “Alive but dead.”
People can be prosecuted for that. Privacy law though, is different. There is apparently no invasion if there is no expectation of privacy. We need a lawyer to verify that, but I’ve heard it more than once.
If they simply make the accusation and nothing else, probably. If it’s illegal than bring the case on, is all I’m saying, and if they don’t then I doubt the sincerity.
Sorry to stop here for now, but I’m tired. Good discussion.
If I did no research and had not developed an informed opinion, then yes. Luckily, that didn’t happen in this case.
I guess my point is that you have the heavyweights of the right throwing around Echelon, as if it somehow excuses, explains, or justifies what Bush does. They do so without any actual facts about it or explanations of how it in any way applies. It’s exremely frustrating to see it happen, and it’s even more frustrating that people listen to it and accord it any basis.
Hereis part of the statute. In the part of the statute that defines electronic communications that FISA covers it specifically, and repeatedly states it applies to United States persons and places. It says “sent by or intended to be received by a particular, known United States person who is in the United States,” “from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States”, “and if both the sender and all intended recipients are located within the United States”; and “the installation or use of an electronic, mechanical, or other surveillance device in the United States.” It’s not just that FISA applies domestically, it’s just that it ONLY applies domestically.
I can’t find that power in the text of the Constitution. Sure, the President is Commander and Chief, and national security is certainly part of his powers, but it is not expressly granted to him, nor is it exclusively granted to him. There is absolutely nothing in the Constitution that says his non-pleanary powers cannot be regulated.
Once again, the President doesn’t have the power to wiretap citizens granted in the Constitution. He doesn’t even have the exclusive power over national security. I thought we had learned that lesson back when Truman seized steel mills, Nixon wiretapped citizens, and Reagan sold arms to Iran to fund the Contras. Apparently this administration doesn’t learn too well. The founders created a way of dealing with powers not expressly and exclusively granted to one branch… you make laws. Congress, the DOJ, Carter, Reagan, Clinton, and Bush I all had no problem with FISA. It wasn’t until the current president that it became an issue, and then, only after he had been caught.
And, for the third time, it’s not a change in the Constitution. Nobody until this president found it a problem. Fuck, even this President doesn’t think it’s a problem enough to change the law.
You’re comparing breaking the law and violating citizen’s rights in secret without Congressional or judicial approval to the great civil disobedience movement? Seriously? Were the officers who stuck a plunger up an immigrants rectum protesting the exclusionary rule too?
You need someone to challenge the action to get it into the courts. There are numerous lawsuits attempting to do just that, but none have reached SCOTUS yet (and none are likely to). We don’t have any information to indicate who a proper plaintiff would be because of the secrecy of this administration. And we have a bunch of spineless party-line blowhards in Congress who refuse to enforce the Constitution.
Since I merely mocked it before, I am curious how you can compare civil disobedience to fight racism, and wiretapping US citizens secretly. Is committing murder a way to challenge murder statutes? Are those guys bringing in tons of cocaine just making a case for drug legalization? It’s patently ridiculous.
I’m merely asking where you get the idea that there exists an “other legal means” in FISA. There isn’t. You put it out there like it’s a fact, and I’m wondering where you got the idea.
They can’t, because they don’t have the power. From the Washington Post:
“The Bush administration helped derail a Senate bid to investigate a warrantless eavesdropping program yesterday after signaling it would reject Congress’s request to have former attorney general John D. Ashcroft and other officials testify about the program’s legality. The actions underscored a dramatic and possibly permanent drop in momentum for a congressional inquiry, which had seemed likely two months ago.”
The only thing they can do is Feingold’s call for censure, and look what kind of press and reaction that got him.
I would too. But, again, it’s that damn Case and Controversy requirement in the Constitution that forbids the courts from getting involved. Until we find an actual plaintiff, or until your party leaders get a fucking spine, we’re stuck watching the President violate the law over and over and over, without being held accountable.
And, again, as I explained before, you are completely wrong.
Sometimes I just shake my head that someone who appears to be intelligent can spout completely inane comments out of partisan loyalty. As I explained earlier, Bush never, ever, ever challenged FISA until after he rejected offers to change it, after he had violated it for 5 years, and after he got caught. I’m not sure what you consider “openly”, but that most certainly isn’t it. The same goes for the obtaining of the telephone records.
His current realm of signing statements does, indeed, seem more forthright. Now if he would just let us know all the laws he’s currently breaking in secret, and in the name of national security, we could get somewhere. It’s not like every election gets the President a new slate to decide which laws he can break and which he has to follow.
Oh, please. We have no idea the extent of his FISA violations, we have no idea who he’s wiretapping, we have no idea what he’s doing with the telephone records, we don’t know what’s going on in our detention camps. If you can honestly say you think this Presidency is known for its forthrightness, you are completely lost to me.
See above.
[qutoe=Scylla]Let’s try a hypothetical. It may or may not be far-fetched, but we’ll use it anyway for argument’s sake.
Let’s say you’re the Pres, and you’ve sought FISA warrants before and after the fact in many scenarios. Let’s say that in a particular set of circumstances you’ve been turned down for a warrant several times. That same set of circumstances comes up again and you want to monitor all of a person’s conversations a week from now. Let’s say for whatever reason this one is crucial to the National Security. You need it.
Now, you know from precedent that in this set of particulars you stand a good chance of getting turned down if you seek a warrant beforehand. Do you risk going for the warrant, get turned down, and miss the shot to stop an attack? If you get turned down that’s it. You can’t do it.
The Constitutional authority and powers represent a higher law than the Fisa, and the President has a Constitutional requirement to use them appropriately. He cannot pawn them off and avoid responsibility for acting or not acting, by turning the authority over to another.
The President is an elected official with Constitutional powers. A judge is an appointee that does not have the powers.
[/quote]
I think I’ve dealt with these issues earlier, so I won’t continue to repeat myself.
Again, having a power does not mean that power cannot be limited. The founders knew that, why is it so hard to understand now?
In the Constitution, the Fourth Amendment. In statute, yeah there is too, in FISA.
Again, I’d just be repeating myself.
I blame too much right wing talk radio. I’d recommend 2 hours a day of NPR and a little yoga. It might help.
Very briefly: The Constitution and a statute are two different things. An action, such as wiretapping citizens or assassinating members of Congress, can not be forbidden by the Constitution, but can still violate the law. The Constitution, although the supreme law of the land, cannot possibly cover every eventuality. So the founders decided that, in addition to the Constitution, they would allow the branches of government to create laws, to cover what is not in the Constitution.
Congress can act to expand the protections of the Constitution, if they so desire. In this case, the Courts determined that records of whom you called are not protected by the Constitution. Congress stepped in later and said, well, we’ll offer you more protection than the Constitution does by requiring law enforcement to get a court order before they can get telephone numbers. Congress is well within its powers to afford more protection than the Constitution requires.
If my post was getting too long and tedious, here’s the short version:
Just because there is no court case does not make the President’s actions legitimate.
The President’s power in national security is not limitless.
Congress has acted to limit the President’s powers in the realm of domestic wiretapping.
Bush only raised this issue after he got caught violating the law for 5 years.
Senators who have shut down an investigation into the illegal wiretapping are spineless garbage who are abdicating their duties.
And when there is an actual plaintiff, the Justice Department will simply invove the “states-secret” priviledge to have the case dismissed, as has happened with Khaled al-Masri and Maher Arar.
Hamlet: outstanding! Thank you very much for all your effort. Just a couple of points to add, none of which make a just-noticable difference to the value of your posts. You may even have already addressed these in previous posts - if so, I apologize in advance.
This is an issue upon which that defender of the Constitution Arlen Specter specifically caved last week. He had been giving lip service to a review of the program, until he gave deep throat service to the Bush administrations desire to avoid being forthright. Now there has to be someone with standing to bring a case, which is quite unlikely, given the clandestine nature of the fucking thing. As one who had a modicum of respect for Specter at one point, largely based in ignorance, it is a little sad to see him drop to his knees so consistently. The real problem is that he has been increasingly fighting primary challenges from the right, so he has to sacrifice integrity in order to keep political and financial support. Too bad Arlen, the times they are a changin’…
Hamlet may have already addressed this, but a) the estimated number of times FISA courts rejected warrants suggests that they were highly unlikely to refuse a warrant, let alone one associated with an actual ATTACK!!! (Run in FEAR! COWER and HIDE! You don’t HAVE any RIGHTS if you’re DEAD!!! I NEED to SUCKLE on a TEAT, NOW!!!); and b) FISA provisions already allow for an after the fact warrant. Why wouldn’t the President just follow the law, get the information, and get a warrant as necessary within the 3 days he is allowed to do so (presuming that the FISA printer wasn’t blown up in the TERRORIST ATTACK)?
I don’t think he hates them. I just think he doesn’t understand them.
I mean that in all sincerity, especially given his previous comment about not understanding the difference between unconstitutionality and illegality. Pretty basic civics, yet he professes to be confused by the distinction. And yet he holds broad opinions about this and other matters despite his evident ignorance.
And the thing is, he’s hardly alone. Consider that poll a number of years ago about constitutional freedoms wherein majorities of the population said they disagreed with the provisions of the Bill of Rights when they were presented as standalone, decontextualized principles.
It’s truly amazing how little Americans actually know about America, no matter how much they say they love it and believe in its ideals.
I don’t know if this’ll help, but since the “other legal means” seems to be a sticking point, I figured I’d pipe up. Please forgive me if I misunderstand or misrepresent a position – I’m happy to be corrected.
I think that Scylla is reading it the way I first read it – that the inclusion of the phrase “other legal means” indicated that there were already…um…other legal means…on the books that are separate and distinct from FISA, but may also apply. After reading SteveG1’s post #229, I came to the conclusion that it wasn’t so much that there are other legal means, but that the phrase is an explicit recognition that the law evolves. That is, there may be laws passed in the future that define these “other legal means” – if and when they’re passed – but that doesn’t mean that there are such laws in force (or existence) at this time.
From what I gather, FISA (1978) lays out the law on what is required for wiretapping, both foreign and domestic (the former being acceptable if one party is outside the U.S.). There is no law that supercedes FISA in a meaningful way, as I understand it.
I agree. We’re getting hung up here, though. In later posts my confusion on “Constitutional but legal” is discussed. I misread what you were saying and the argument I think you are making.
You are saying that because wiretapping is not specifically granted in the Constitution as a power the President has it is “constitutional.” Because a law has been acted against it, it is illegal. Therefore Constitutional but illegal.
If it were specifically granted to the President, than Congress would not be able to pass a law against it, and if they did without amending the Constitution, the President would be under no obligation to follow it as it contravened his Constitutional powers. Right?
I am arguing that the President does have the right to wiretap and that it is Constitutionally granted, and therefore Congress cannot pass a law against it, or regulate it in such a way as to obligate the President to follow it.
That’s moot. If he doesn’t think he violated the law or that he had to raise the issue, why would he?
I guess that means something like this, if it were said in a more honest manner:
“We know what the law says, but can’t be bothered doing it legally, because we’d have to justify it and do some paperwork or fill out some forms, so screw the law”.
There’s a bit of confusion, because jump back and forth between the President’s illegal activites. The wiretapping of US citizens without warrants is illegal and (quite possibly) unconstitutional (it violates the 4th Amendment.) The obtaining telephone records en masse is illegal (Stored Electronic Communication Act), but constitutional (Smith v. Maryland).
I understand what you’re arguing, but I’m wondering what the basis for the argument is. The Constitution does not grant that power expressly, nor does it say that that power is exclusive, so how does it suddenly trump the law. Is there any legal basis for this kind of expansion of limitless power? Is there a reason that you believe Congress doesn’t have the power to make law about wiretapping US citizens? Why hasn’t this apparently glaring constitutional problem ever pop up when FISA was in court before?
There is a huge difference between wiretapping or collecting signals intelligence in the foreign realm, and in the domestic realm. In the foreign realm, the President has authority, as Commander in Chief, to wiretap non-citizens and to steal signals intelligence. But when a US citizen, or on US property, Congress can legislate in the area of domestic surveillance.
Now, even if you accept that the President has the unenumerated power to wiretap US citizens, there is absolutely nothing to indicate that power is exclusive or limitless. Just as Congress has the power to proscribe rules for the regulation of the armed forces, even though the President is Commander in Chief, so Congress has the power to regulate domestic spying. Why you would want unlimited power in one person against the best thoughts of the founders and pretty much most conservatives, is beyond me.
Bush is attempting to make one of those “I didn’t shoot her, but if I did, it was in self defense” arguments. There’s really no question that he violated FISA, but he says first that he’s authorized to violate it, and, if that doesn’t work, FISA is unconstitutional.
If an honest, ethical, dare I say forthright, person knew his actions were violating the law, how would he handle it? Changing the law would be a good start. This Congress has shown every indication it will pass whatever the President wants as long as it’s under the guise of “national security”. Bush repeatedly told Congress FISA didn’t need to be changed, all the while violating it over and over. Would our honest, ethical and forthright man perhaps try a court challenge to test his heretofor unaccepted theory? He sure would. Instead, we get a president who hides his violations, misleads Congress and the American people about them, and, even knowing that he will be caught, doesn’t do anything for a year. It’s absolutely despicable.
We’re not talking about voting for a censure or impeachment. We’re talking about opening an investigation. As implausible and legally laughable as this administrations justifications of wiretapping US citizens is, I’m sure there are some Congresspeople who believe it. But even they can pull their heads out of Bush’s nether regions long enough to realize that there may be some basis to the complaint, and that we, as a country of laws, should get more facts and look at the legal issues more carefully before turning a blind eye to illegality on the part of the president.
9-11 changed everything. We’re at war. They hate our freedoms. Rinse and repeat.
Sadly, many of them will not do anything unless and until the people send them a message - “You’re fired”. As long as they keep getting re-elected, they will see it as some sort of “mandate”. You have to vote them out, give them their walking papers.
