It’s a shame you can’t ask a simple question without being a total asshole.
Hamlet and I seem to be in agreement (and you as well) that we don’t like this program. We’re not discussing it because we agree and therefore there is no debate.
We disagree on whether or not it is legal.
In other words, the appropriateness of it and the legality are two different issues. Agreement on one does not necessarily mean agreement on the other.
The power of impeachment is constitutional and cannot be disputed legality. I disagree what amendment he is ignoring, but am open to enlightenment.
No. Clearly cannot violate the Constitution or its amendments.
I hate to repeat. I know you are coming in here late, but it is my stance that the Pres. is not bound by laws that violate his Constitutional powers and cannot be encumbered to follow them pending change.
No, I don’t think that’s a reasonable extension of my argument.
The old “you would be arguing differently if it weren’t your guy” argument. Since that’s not the case, and since you can’t read my mind, it’s a totally useless argument. I can also disprove it by assertion since I can read my own mind. So, no. You’re wrong. My argument would be the same if a Democrat were in office. I supported Clinton’s “Wag the dog” bombings.
The rest of your argument is a recycling. The old slippery slope, and you’re ignoring the power of impeachment which exists to prevent the situation you describe.
Yes, and I don’t think the latter binds the President constitutionally. I’m getting frustrated too.
I tend to agree. We disagree on the legality of what the Pres is doing.
Sigh. Fisa. Signed by Carter to give away a Constitutional power is not binding. If Bush signed a Bill dissolving Congress, it would not be binding. You would need to ammend the Constitution to get that to stick. I dispute Fisa’s legal ability to stop the President from the execution of his duties, and I think it’s stupid law to place an appointed judge over an elected official in this capacity. There is more than one way to create a dictatorship and disrupt the balance of powers. Already, IMO the judiciary is far too powerful. There is a reason why I think the powers of the Presidency as I’ve described them rest in an elected official. Perhaps you disagree in this instance, but I hope you would admit it’s a reasonable position.
[quoteYou’re trusting the legal judgement of a bunch of politicians. You must hold them in very high regard. That’s something I’ll remember. Me? I don’t put much, let alone that much, faith in most politicians.[/quote]
It’s better than putting my faith in an appointed judge I never heard of and can’t impeach or vote out.
To take the first part last, the Constitution specifically gives the President the “executive power” in article 2 which is generally accepted as being implemented through executive orders.
As for ignoring the laws, the President’s oath is to uphold the Constitution, not to uphold the rulings and laws that are subservient to that athority when they contradict it.
He cannot violate the law as he deems fit. This is not a faithful interpretation of what I am arguing. The Constitution is the highest law and he follows that if there is a contradiction with other laws. If there is no contradiction then he must follow the law.
I apologize for not being clear. I made that up as a hypothetical. Fill in the blanks as you see fit as a thought exercise and see how you think it would apply today.
I really do get your point that you think what the Pres. is doing is illegal. You say you really get my point that I disagree, and why. At the same time you keep asserting your side as a given. It is not. Following the Constitution, the President is acting legally even if in order to do so he must break lesser law.
Ok, but I think the President can and should violate the law when the law is unconstitutional, and that that violation is not illegal, since the Constitutionally granted powers of the President trump lesser law.
You say it’s a losing argument, but the President seems to be winning it, does he not? It looks to me like a winning argument. I’m ok with this, because I don’t think FISA is a good answer.
That is indeed a serious risk.
Scylla, I think we’re getting nowhere anymore. I think I have a good grasp of your position, but I think it is a poor one, both legally and policywise. Your position that a law that unjustly infringes upon a President’s power is unconstitutional is quite reasonable. But you refuse to explain a) the basis, definition and limits of the presidential power you say are being infringed upon b) how the law infringes upon it enough to be unconstitutional, c) why, in the absence of Constitutional specifically granting of the power, you feel the power is not subject to regulation, d) how an unenumerated Presidential power could possibly trump the enumerated 4th Amendment, e) why the difference between foreign surveillane and domestic surveillance has no relevance to the power of Congress to limit the President, and f) how you square all that with the famous concurrence in Youngstown Steel.
You have taken a position that, in my opinion is legally untenable, and repeated it, ad nauseum, without really addressing any of my concerns about the position.
FISA did not “give away a Constitutional power”, it made certain actions illegal. And, once again, even if you believe the President has the power to wiretap citizens without a warrant (again without telling us how you got there) that does not mean that power cannot be legislated.
Do you feel the same about the 4th Amendment? Do you think that requiring the government to get a warrant before conducting a search is a “stupid law”?
I honestly don’t follow how we got into the evils of judicial superiority or judicial activism. Suffice it to say, I trust the courts more than I do the politicians.
And the Constitution specifically gives Congress the power to legislate. If an executive order acts as legislation, it’s invalid too.
Once again, FISA does not contradict the Constitution. No matter how many times you say it.
Insert my earlier comments here.
Once again, you are not answering my argument, merely repeating yourself. You completely ignore the difference between foreign and domestic surveillance, and the difference between doing something when it is legal to do so, and doing something when it is illegal to do so. I used your FDR hypothetical to point out that your view that Presidential powers, no matter how imaginary or plenary, are completely unregulate-able. That view simply has no basis in law, or policy, and was not what the framers intended.
Even accepting your position, do you see the problems with how this administration has done it? Never once, even when offered, changing the law. Never bringing it before the courts for a determination. Not relying on the opinions of every other President before him, or of every other DOJ before him? Not relying on the prior court opnions. Merely breaking the law, in secret, for years, and only raising these issues after the NYT prints a story about it. Those kinds of actions speak volumes about the kind of people in this administration, as well as to how legitimate their odd view of the Constitution is.
He’s winning the political battle. Luckily, I have the ability to judge legal and policy arguments based on more than fear mongering, political attacks, and party affiliation.
You’ll forgive me if I don’t put a lot of credence in the same things you apparently do.
Then change the law. Or challenge it in court. Don’t just break it in secret.
It’s not just a risk, it’s what is occurring. I think the one thing this administration learned from the Iran/Contra (which, by the way, I’d still like to know your feelings on compared to this issue) is that, rather than admitting at least part of the truth and appearing to cooperate with a Congressional investigation, the President should clam up, and apply all it’s political pressure to ensure the facts are not known
So, you’re telling us that you support terrorist pedophiles?
Interesting. Citizen, please report to Reeducation Center 842.
God Bless America!
-Joe
What can I say? In this sense, you are particularly inspiring. Perhaps if I believed for a moment that you were arguing from a good-faith intellectually curious position, I would have noted this contradiction more gently. However, when you frame things in terms such as “your team is losing this one,” [note that this is paraphrasing, not quoting] it undercuts the potential to regard you as doing so.
Further, I know from prior arguments that you are prone to arguing in a less than good faith manner, and that in your amusing anecdotes, you are willing to bend or create elements out of wholecloth to manipulate the readers’ impression.
Finally, from the standpoint of a debate, Hamlet is, metaphorically speaking, kicking your ass, yet you have not modified your position as far as I can see one iota.
Therefore I unfortunately did not extend you the courtesy of trusting you to do other than is your wont.
What you beleive is moot. I was just wondering why you’re being an asshole.
Instead of “paraphrasing” why don’t you just say “made up out of whole cloth.”
Never mind with the rest, if you’re going to falsely attribute motivations and arguments to justify your behavior as an asshole that’s fine.
OK. A) Unitary executive theory
B)In Re: Sealed Case No. 02-001 which was the court of review for a denial of a Fisa warrant, the court recognized " the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance."
On January 27th the USDOJ issued " THE NSA PROGRAM TO DETECT AND PREVENT TERRORIST ATTACKS MYTH V. REALITY" which states:
"Myth: FISA has “emergency authorizations” to allow 72-hour surveillance without a court order that the Administration could easily utilize.
Reality: There is a serious misconception about so-called “emergency authorizations” under FISA, which allow 72 hours of surveillance without a court order. FISA requires the Attorney General to determine in advance that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization can be granted, and the review process itself can and does take precious time. "
So clearly, the requirements of getting permission for 72 hour surveillance can infringe and delay the President unreasonably in his necessary duties.
C)This appears to me to be a restatement of A. It is within the President’s inherent powers as recognized by the Fisa Court of review. As they recognize it, and they are the authority you seek remedy from, I think the argument that the President does not have this authority is officially dead.
D) Orin Kerr is a Professor at the George Washington University of Law and “and a leading scholar in the subjects of computer crime law and internet surveillance.” In his online blog he posted on December 19th… Well, several whole huge arguments that you can look at and we can discuss, but concludes:
“On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent”
http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722
E)Upon review, Youngstown Steel is an argument in favor of the Constitutionality of the President's actions. Attorney General Gonzales cites the case on February 6 during the Judiciary Committee hearing Wartime Executive Power and the National Security Agency's Surveillance Authority.
“Accordingly, the President’s authority to use military force against those terrorist groups is at its maximum because he is acting with the express authorization of Congress. Thus, under the three-part framework of Justice Jackson’s concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring), the President’s authority falls within Category I, and is at its highest. He is acting “pursuant to an express or implied authorization of Congress,” and the President’s authority “includes all that he possesses in his own right [under the Constitution] plus all that Congress can” confer on him.”
http://www.usdoj.gov/ag/speeches/2006/ag_speech_060206.html
You are quite correct, and I apologize and I hope I’ve remedied that. Thank you for buttonholing your concerns like that.
I don’t really trust either. We can unelect the former.
Good point.
This cite here:
http://www.usdoj.gov/olc/warpowers925.htm
from the Department of Justice “the exercise of his plenary power to use military force, the President’s decisions are for him alone and are unreviewable.” Intelligence gathering is military force and specifically granted to him under the joint resolution.
John Schmidt a Clinton administration Associate Attorney General wrote that the President has the inherent athority to authorize wiretaps:
Actually, we’re both doing the former. We are not being too careful about discussing what applies to foreign wiretaps versus a foreign wiretap where one end of the conversation is domestic versus the gathering of databases. You seem to be guilty of this too as you use “wiretap” to be any of the above. It’s possible that some of our disagreements are founded on a misunderstanding of which we are talking about at the time.
None of this is actually true if you read Gonzales prepared statement which I cited. It may also be of further interest to examine Gonzales’ testimony to Arlen Spector on that day and perhaps infer that there is something political going on in Fisa where they seem to be having issues in granting wiretaps based on the origination of information that leads to the evidence necessary to grant a wiretap. There may be a control issue here where the Fisa court is attempting to expand it’s authority by denying warrants. That is certainly what Specter was leading Gonzales to discuss. Gonzales though refused to comment.
Sorry about the rest, but that first part required a lot of effort. I don’t mean to give the rest of your post short shrift but that’s all the time investment I can make at this moment. If you feel I’ve neglected something important in your previous post point it out, but I think we have a lot of food to work on with your ealier requests for clarification and my responses.
(This is getting good again.)
Because I didn’t.
Perhaps you don’t know what wholecloth means.
I stand corrected. I still wish you wouldn’t be such an asshole.
That makes two of us.
Er, I mean, it would be nice for you to do likewise.
Ok. You’re a smart guy. I wrote a lengthy well-researched post on a position you oppose.
If you’re making blanket dismissals based on presumptions of character rather than addressing the merits of the content than you’re being an asshole.
Two partFirst .Data collection.Second part data goes somewhere. Who gets it and what other info do they have.Do you call for reservations at a foreign restaurant. Who do they talk to What does that info get mixed with. Call a doctor lately. How about an oncologist. Talk to a drug clinic for any reason.Think about it. A harmless phone call can look bad. This data goes into a data bank you have no information of.
When they had to get a warrent ,the information existed somewhere. Abuse could be tracked.The warrents were never refused. They could tap and then had 3 days before a warrent had to be applied for.
The NSA was invented to prevent the executive from abusing it’s powers. This administration wants to do so without answering to anybody.
I didn’t want to step on Hamlet’s toes, but if he’s had his fill of your nonsense, I’ll be happy to dissect your last. I have to run to take the recycling to the municipal center, but the first point is quite obvious - your quote under item B is irrelevant. Nobody has ever contested the ability of a president to conduct foreign surveillance. It’s domestic surveillance that gives Americans a bit of a problem. If you don’t understand that, how have you gone on for so many pages with an “intelligent” discussion?
Do you dispute the legality of it if one end terminates or originates in the US? What if both ends originate in the US but are by foreigners? One? What if by an Al Quaeda operative who happens to be a US citizen? What about gathering data without eavesdropping that helps you identify the above?
That’s exactly the purpose of FISAs provisions for surveillance of US persons - to permit such activities while alloing for a judicial review to make sure we are protected from an executive run rampant.
FISA.
FISA
FISA
FISA. FISA already allows for remedies for all these circumstances while maintaining our civil liberties to a reasonable degree. And you can try to sell your “it’s too hard to find the attorney general in three days” nonsense to someone else. Get the guy a pager and a cell phone if he’s prone to wandering off without telling anyone where he’s gone to. If my boss can get a hold of me pretty much whenever he wants to, I would hope that Alberto Gonzales is subject to the same.
Sorry for the delay. Real life and all.
There’s a reason it is still called a theory. And there are reasons it has not gained much, if any, acceptance in the judiciary or by legal scholars. The main reason is that it has little legal basis in the Constitution and is damn poor policy to boot. "No precedent holds that the President, when acting as Commander in Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was designed specifically to restrain the President as such.”
But, I am curious, had you even heard of this vague “unitary executive theory” before Bush? Is this a belief you held for awhile, and not some post hoc justification for the actions of this President? Because, to be honest, I had heard of it only once before in my life, in my Philosophy of Law class. And it only came up as another option that the founders, and Marbury v. Madison, had rejected, instead deciding on the separation of powers, checks and balances, and judicial supremacy system that has worked so well for the last 200+ years.
It appears your answer to my question “the basis, definition and limits of the presidential power you say are being infringed upon” is none, none, and none.
How intriguing that you would use a case that upheld the constitutionality of FISA to argue that FISA is unconstitutional. To actually continue your quoted sentence: “we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable."
Interesting. I will also point out that the language you quoted, clung to so fiercely by the right, is purely dicta and relies only on pre-FISA cases. Which leads us to:
I think there is a fundamental misunderstanding on your part, about the use of the term power in my arguments. Your confusing of A and C indicates to me that you can’t seem to grasp the idea that the President can have the power to do something, but that that power can be limited. It simply isn’t the case that, whatever the President can do, he can do without limitation (or whatever broad impeachment limitation you would put on it). My C point was not asking what power you were relying on, but rather can that power be limited.
If it helps, there are two general kinds of “inherent” powers the President can use, exclusive and what some call “default”. The Constitution grants the President certain inherent, exclusive powers, such as “Power to Grant Reprieves and Pardons for Offences against the United States” or the power “require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices." In these cases, as we learned in US v, Klein, Congress cannot limit the power. It is specifically enumerated as a exclusive Presidential power in the Constitution, and cannot be regulated away. Now, here is the big point: not every presidential power is that way. Inherent default powers, not granted in the Constitution, are the subject of legislation or, as Bricker and you have said: subject to the will of the people.
The President’s power to wiretap US citizens without a warrant is subject to legislation, and Congress enacted such legislation in 1978. If you do not like it, change the law, don’t violate it over and over.
Interesting arguments. Justifying wiretapping of international calls as a border search or in the interests of national security are … intriguing arguments, at least in the wiretap problem. However, there is still the problem with the recognition of a presidential power to wiretap citizens. Would you agree that the President cannot wiretap purely domestic call? Even if done supposedly for national security?
Also, if we’re accepting Orin Kerr as an expert here’s some of his quotes found here:
Regarding the AUMF somehow allowing the President’s actions:
“So at bottom, I think the AUMF probably didn’t authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might”
Regarding the “Presidential Power”:
“So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President’s Commander-in-Chief power, a judgment made, I suppose, by the President himself.
I have been unable to find any caselaw in support of this argument. Further, the argument has no support from the cases cited in the government’s brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President’s interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.”
I’ll also point out that Mr. Kerr links to arguments by Marty Lederman, one of which can be found here and another here Wonderful reading if you’re interested. My favorite was: “the Administration’s principal justification for its stark violation of FISA is the claim that Congress authorized the surveillance in question – the circumvention of FISA’s finely wrought scheme – when, on September 18, 2004, it enacted the AUMF authorizing the President to take “necessary and appropriate force” against those reponsible for the 9/11 attacks. I suggested that this didn’t pass the laugh test – that it is simply inconceviable that any member of Congress, let alone a majority, intended by voting for the AUMF to allow circumvention of the FISA-court approval mechanism as to the wiretapping of communications involving U.S. persons”
Color me surprised that Alberto Gonzalez would advocate for his President’s expansive view of Presidential power. I’m sure he’s completely unbiased and truthworthy. I will point out, however, that he is grossly misreading the holding and concurrence in Youngstown. It is the same sleight of hand and misstatements of the law that are behind his argument that the AUMF authorizes the warrantless wiretapping of US citizens. Gonzalez’s argument is that, by authorizing the use of force, Congress gave the President the power to, basically, do whatever the fuck he wants. Included in the “whatever the fuck he wants” superpowers Bush was granted by the AUMF is, apparently, the power to violate FISA. I’ve already described earlier the problems with this interpretation of the AUMF and FISA, so I really don’t want to go back over it all again. Suffice it to say that Gonzalez’s belief the AUMF trumps FISA is against all precedent. Youngstown, in fact, actually held the President did not have the authority to authorize the seizure of steel mills, which was a domestic concern meant to be resolved by, surprise, surprise… Congress. The fact that you have a statute that deals specifically with the issue (FISA) and says the President cannot wiretap domestically, puts domestic wiretapping in the 3rd, or lowest ebb of Presidential power.
It’s nice to see you (and more importantly me) getting back to the issues.
Once again, there is a world of difference between military force and wiretapping US citizens. There is also a world of difference between foreign intelligence interception in the United States and the rest of the world. The President has to power to intercept, however he wishes, purely foreign communications. It’s when the communications involve US citizens in the US, or are conducted in the US, that Congress can, and has, regulate.
John Schmidt, and those who parrot his beliefs, are forgetting one minor detail, the cases he cites: Truong and Keith are all pre-FISA cases. As I’ve said before, there is a colorable argument that, in the absence of Congressional legislation, the President can wiretap US citizens (a position advocated by Nixon by the by, so you’re in good company), but, and it’s a big but, Congress HAS acted to make those actions illegal. In addition, here is a brief article which dissects some of his assertions.
I use the term wiretapping to cover wiretapping and references to telephone records to cover… well, telephone records. To briefly recap, wiretapping is the NYT article describing where the NSA is conducting surveillance on US citizens without a warrant in violation of FISA. The gathering of telephone records, as I discussed before, is likely illegal (Orin Kerr actually does a good job discussing it) but not a violation of the Constitution.
What’s not true? I said they didn’t change the law … and they didn’t. I said they didn’t bring the issue to court for a determination… and they didn’t. I said they didn’t rely on prior President’s determinations (none of which had challenged the constitutionality of FISA)… and they didn’t. The only possible thing is when I said they didn’t rely on prior court rulings, I meant the courts have never found FISA unconstitutional. The AG purports to follow the cases, but his convoluted reasonings, and his deliberate twisting of the law (his goofy response to the Youngstown Steel case is the prime example) is just wrong.
I’m almost tempted to not even reply to this. I’ll admit in these long, intense posts, it’s very easy to slip into propoganda and thoughtless parroting. But trying to pretend, without a shred of evidence, that somehow the FISA court started to get political after all these years of rubber stamping is pure bullshit. It is much more likely that the requests this administration made of the FISA courts were rejected because they lacked probable cause. If nothing else, this administration has shown it’s willingness to push the envelope, and I, for one, wouldn’t be surprised if the ones that were rejected were done because they were fishing expeditions, and not some sudden political change in the court.
I’d love your thoughts on Iran/Contra compared to the wiretapping scandal, your apparent dismissal of FISA as a stupid law because it gives judicial overview of an elected official (wherein I questioned your view of the 4th Amendment), and whether you are troubled by the way the President handled opposing a law he thought was unconstitutional.
It is.
And one, just because it caught my eye:
GET A FUCKING WARRANT!!!
That’s what is especially infuriating about this whole thing. I’ve worked on hundreds of warrants, and, in reality, it isn’t that hard to get one. Where the far right would have you believe anyone who questions his illegal wiretapping is soft on national security and aiding Al Qaeda, all we’re asking is that this administration follow the law and get a warrant. This isn’t a case where were saying don’t get the information, just get it while respecting the Constitution.
No problem.
Evolution’s a theory, too. According to my cite, preceding Presidents have asserted such powers.
[/quote]
But, I am curious, had you even heard of this vague “unitary executive theory” before Bush? Is this a belief you held for awhile, and not some post hoc justification for the actions of this President? Because, to be honest, I had heard of it only once before in my life, in my Philosophy of Law class. And it only came up as another option that the founders, and Marbury v. Madison, had rejected, instead deciding on the separation of powers, checks and balances, and judicial supremacy system that has worked so well for the last 200+ years.
[/quote]
No. I’d never heard of it before, though some of the arguments are familiar enough going back to Iran/Contra and Clinton’s unilateral bombings.
It appears to me that you’ve waived your hand at my answers.
Just as you are unsurprised that Gonzalez supports the President’s point of view I am unsurprised that FISA supports itself.
So you say, but do you have a cite for that? I don’t think the President’s “ineherent Constitutional Authority” can be so easily subjugated and that ruling doesn’t say he still doesn’t have it, does it?
Yes. I understand. The Fisa ruling calls it an “inherent Constitutional power” which according to your argument is the kind that cannot be limited.
Again, FISA calls it an “inherent Constitutional Power.” The law does not need to be changed.
No. I don’t think I would agree. I think the President can authorize such.
I understand your argument, but you must concede that you are just a guy on the internet. Gonzales is the Attorney General. Gonzalez claims it is at the 1st level of power because we are at war and because of the AUMF neither of which was occuring during the case (Korea being a “police action”)
Why, in all seriousness should I take your assertion over the Attorney General’s?
I understand that that’s your position.
I’ll look at that.
But again, why should I take your word over his?
Again, Gonzales, wouldn’t comment, but it seemed Specter was leading him to discuss both this issue and the idea that FISA was rejecting warrants whose evidence came from The NSA databasing type things. I’m not making a major argument here. I’ll see if I can find the testimony again just because it’s interesting.
Iran/Contra, Oh God! Don’t we have enough on our table? To be brutally honest I’m not prepared to discuss Iran/Contra without a major boning up on the subject.
I thought we’d agreed to disagree on the FISA stupid law thing. You trust a judge, I trust an elected official more, simply because the elected official can be unelected. Secondly, in terms of getting warrants, the cumbersome bureacracy of an appeals process in the event a warrant isn’t granted can make things moot from a timing standpoint. By the time you go through appeals it may be too late. These decisions need to be made quickly. That power belongs in the hands of a single elected official who can be removed and held acccountable. It’s not so easy to hold a court process accountable for a failure.
No. I’m not really troubled.
The problems with this in some circumstances are enumerated in the DOJ FAQ I linked.
Science and political theory don’t really mix.
Well, let’s look at the ones from your cite. You have Jefferson losing his assertion in Marbury v. Madison. You have Andrew Jackson ignoring the Supreme Court’s ruling. You have Lincoln losing his assertion in Ex Parte Milligan. Although FDR won his initial battle in the Supreme Court over the internment of Japanese, I think we can agree that “assertion” didn’t work out too well. Then you have Truman losing in Youngstown Steel, and Nixon’s impeachment. Those are YOUR examples, and in each and every one of them, the Presidents who have “asserted such powers” were shot down in court and made a mockery of. What does that tell you about your “unitary executive theory”?
No, I’ve pointed out the flaws in your answers. I’m still waiting for your description of the constitutional and legal basis for this theory, a precise definition of the power and what it emcompasses, and what limits, if any, there are.
You do realize FISA is a statute, don’t you. You do realize inanimate objects have no ability to “support itself” or make arguments about itself? What I did in my post was continue your quote to show what the Court had actually ruled, that FISA is constitutional. It’s a court’s holding that YOU cited. I don’t see how you can claim any kind of bias.
Take a look at all the prior cites I’ve provided, from the letter to Congress from the letter to Congress to your Orin Kerr cite, to Marty Lederman. They pretty much all agree your vaunted quote is dicta, and the cases cited in the ruling were all pre-FISA.
Sigh, are you even reading my posts, or glossing over them, looking for a quick one sentence response to my research and arguments?
Whatever power the President has to domestically wiretap is not EXPRESS or EXCLUSIVE, and thus can be limited by legislation. It’s what I said the first time.
FISA is a statute, it does not call the President’s power to wiretap “inherent Constitutional power”. You’re confusing the statute with the case dealing with the statute. One case, in dicta, relying on pre-FISA cases used those terms, not the statute itself. The statute itself makes Bush’s actions illegal.
So, in your view, the President has the power to wiretap anybody at anytime, anywhere in the world, without having to get a warrant. Good Luck with that argument.
Well, you could break the mold and read the case and develop your own opinion. Or you could read what other legal scholars are saying about it, rather than simply taking the AG’s word for it.
The simple fact is, if you’re arguing Youngstown Steel supports the President’s actions, you have to believe that Congress, in the AUMF, granted the President power to engage in domestic wiretapping. As I’ve pointed out over and over, that position, as Lederman stated, doesn’t even pass the laugh test. You have one statute, specifically making what Bush did illegal, and one that grants him authorization to use military force against Al Qaeda. None but the most blind, or partisan, would think the AUMF applies more to the situation that FISA.
You see, in certain legal situations, there are certain cases that must be referenced. You can’t argue abortion without Roe and it’s progeny. You can’t argue segregation without Brown. And you can’t argue Presidential powers without Youngstown. Gonzalez is in a tough place because he can’t ignore it, so he has to spin it. His spin, that somehow the AUMF overruled FISA, is pure bollocks. But he had to make some kind of argument regarding Youngstown, no matter how silly that argument is. And some people will buy it. I understand that deciding which argument has more merit may be difficult for some. But I’m confident in my (and just so we’re clear, it’s not just mine. I tend to repeat much of what is found in the 2 letters to the Members of Congress. Greater minds and all that) arguments. But I’m not about to spend 2 weeks breaking down Youngstown Steel for you.
What I think you, and Specter, were referencing was an earlier determination that the FISA courts had made about what evidence they would accept in issuing a warrant. They told the NSA they would not consider, for the obtaining of a warrant, evidence obtained illegally. (Of course despite that the FBI and NSA still did it anyway, but who’s suprised by that). So, what you intimate was some kind of political axe to grind was the FISA court following the Constitution. Tough break there.
I don’t think we really need to get into the details, I’ve just been mulling over in mind the similarities, where a President decides in the interest of national security, he could violate the law. Seems to me that if you’re accepting Bush breaking the law for national security, you need to accept Iran/Contra too.
Actually, I trust law enforcement just fine, but I still want judicial oversight. It’s not one or the other, as you seem to indicate, but rather having a check on executive powers. Me, I’m all for checks and balances. So is the 4th Amendment.
I think you are sorely confused on the issue. There is no way to appeal the denial of a warrant, at least as far as I know. There is, of course, finding another judge, or getting more evidence to meet probable cause standard, but I’m unaware of a process of appealing a warrant denial.
You are absolutely right that it would be quicker and easier to get rid of judicial oversight of warrants. If you’re all for repealing the 4th Amendment, that’s your perogative. Personally, I think it’s insane.
Your view troubles me greatly, and I’m a pretty law and order kind of guy.
The problems exist because there is oversight, someone to make sure there is probable cause for issuing a warrant. If this is too tough for the NSA to meet, they must really be fishing.