# Senate Judiciary Hearings on NSA Surveillance **URL:** \ **Category:** Great Debates\ **Created:** [February 6, 2006, 5:18pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256 "2006-02-06T17:18:28Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [February 6, 2006, 10:25pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/21 "2006-02-06T22:25:07Z")
Graham: > [@](#): > > All I’m saying is the inherent authority argument in its application to me seems to have no boundaries when it comes to executive decisions in a time of war, it deals the Congress and courts out, Mr. Attorney General. ---
**Author:** ![bup](https://avatars.discourse-cdn.com/v4/letter/b/6bbea6/32.png) [@bup](https://boards.straightdope.com/u/bup)\ **Post date:** [February 6, 2006, 10:50pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/22 "2006-02-06T22:50:05Z")
Here’s an honest question: Is “time of war” being challenged by anybody, since it’s not really a war unless congress declares it? Can we be in a “metaphorical” war but the president still get emergency powers? Does anybody have a problem with that? ---
**Author:** ![lissener](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lissener/32/6139_2.png) [@lissener](https://boards.straightdope.com/u/lissener)\ **Post date:** [February 6, 2006, 11:00pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/23 "2006-02-06T23:00:55Z")
Here’s what I don’t understand: Why is no one pointing out the fundamental problem with doing this stuff outside the law? All the justification of necessity, of just trust us, all that bullshit, none of it addresses the fact that if the Bush administration believes that it’s OK in “time of war” to break the law in order to fight terrorists, then WHAT OTHER LAWS MIGHT THEY BREAK WITH THAT EXCUSE? Especially since everything they’re claiming to do can very easily be accomplished WITHIN the law? It almost seems to me that the lawbreaking here–as unnecessary as it was–is a boundary tester. Or, at least, what we KNOW they’re doing is just the tip of the iceberg. Don’t they understand that the simple abstract \*fact \*the the president thinks it’s OK to break the law on his whim is SCARY SHIT in a democracy? The details aren’t even relevant. This isn’t about 72 hours this, judge’s signature that; the issues are much, much larger. A president who’s above the law is a dictator. Period. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 6, 2006, 11:03pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/24 "2006-02-06T23:03:17Z")
> [@bup](#): > > Here’s an honest question: Is “time of war” being challenged by anybody, since it’s not really a war unless congress declares it? Can we be in a “metaphorical” war but the president still get emergency powers? Does anybody have a problem with that? The most I heard was someone (can’t remember who, but I’m sure it was a Dem) ask how we would know when the “war” was over. Still, most of these guys are smart enough lawyers to know that the SCOTUS doesn’t require an actual declaration of war to affirm that the president does have war-like powers. IOW, I don’t think that dog is gonna hunt. If you ask me, Congress has relinquished its war declaring powers to the executive branch. We don’t declare war anymore, we just “authorize the use of force”. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 6, 2006, 11:21pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/25 "2006-02-06T23:21:59Z")
> [@lissener](#): > > Here’s what I don’t understand: > > Why is no one pointing out the fundamental problem with doing this stuff outside the law? Because this is a bunch of lawyers and they all have different opinions and there isn’t any process (in the context of these hearings) to determine who is “right”. The prez claims inherent constitutional authority to do this. If he’s right, Congreass can’t limit that authority. It would be as if Congress passed a law saying the prez cannot appoint SCOTUS justices anymore. The prez wouldn’t obey that law, and he shouldn’t. Of course, this is a lot more nuanced since the text of the Consitution isn’t so clear cut. But, as Gonzales points out, the SCOTUS did rule in [Hamdi](http://en.wikipedia.org/wiki/Hamdi_v._Rumsfeld) that the Authorization to Use Force did allow the president to detain citizens of the US as “unlawful combatants” and: > [@](#): > > This required notice of the charges and an opportunity to be heard, though due to the burden upon the Executive of ongoing military conflict, normal procedural protections such as placing the burden of proof on the government or the ban on hearsay need not apply. Emphasis added. None of this was explicitly authorized by Congress, but is seen as an incident of the AUMF. IOW, it ain’t as cut and dried as you make it out to be. Would you have thought that the AUMF allowed that type of action by the Executive branch of government? Too bad Scalia’s opinion didn’t hold the day, as he disagreed that the AUMF gave the executive this authority and that Bush had to either let Hamdi go, or try him under normal criminal law. Gotta love Scalia right? 🙂 ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 6, 2006, 11:33pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/26 "2006-02-06T23:33:17Z")
> [@bup](#): > > Here’s an honest question: Is “time of war” being challenged by anybody, since it’s not really a war unless congress declares it? Can we be in a “metaphorical” war but the president still get emergency powers? Does anybody have a problem with that? If I understand Gonzales right, I don’t think whether or not we are technically at war really matters. The administration has advanced two reasons their actions are not illegal or unconstitutional. One is that the wiretaps do not violate the relevant law, being FISA. The issue here is isn’t whether we’re at war, it’s whether in enacting the Authorization for the Use of Military Force, Congress gave the President the authorization to wiretap domestic citizens. Whether or not we’re technically at war is secondary. The other argument is that the President has plenary powers under the Constitution to conduct the surveillance for the purposes of national security. Once again, whether we’re technically at war is kind of irrelevant, because the issue in this argument is national security, not war. Granted that courts are much, much more deferential to the President in times of war, but whether or not Congress has technically declared war won’t be a deal breaker either way. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 6, 2006, 11:45pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/27 "2006-02-06T23:45:35Z")
> [@John Mace](#): > > Because this is a bunch of lawyers and they all have different opinions and there isn’t any process (in the context of these hearings) to determine who is “right”. But the NSA warrantless-surveillance program does violate FISA – that **is** cut-and-dried, unless: 1. FISA itself is unconstitutional, to the extent it would bar warrantless domestic surveillance; and I’ve seen no coherent or plausible argument put forth yet to support that position, despite fishing for one in this thread: [http://boards.straightdope.com/sdmb/showthread.php?t=356805;](http://boards.straightdope.com/sdmb/showthread.php?t=356805;) or 2. The AUMF also authorizes the Admin to disregard FISA; and I’ve seen no plausible or coherent argument put forth on that point yet, either. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 7, 2006, 12:05am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/28 "2006-02-07T00:05:43Z")
> [@BrainGlutton](#): > > But the NSA warrantless-surveillance program does violate FISA – that **is** cut-and-dried, unless: > > 1. FISA itself is unconstitutional, to the extent it would bar warrantless domestic surveillance; and I’ve seen no coherent or plausible argument put forth yet to support that position, despite fishing for one in this thread: [http://boards.straightdope.com/sdmb/showthread.php?t=356805;](http://boards.straightdope.com/sdmb/showthread.php?t=356805;) or > > 2. The AUMF also authorizes the Admin to disregard FISA; and I’ve seen no plausible or coherent argument put forth on that point yet, either. Would you have ruled as the plurality did in _Hamdi_? If not, then I submit that you’re not a good judge of plausibility. I probably would’ve gone with Scalia’s ruling, myself, so I’m not not claiming to be a good judge of plausibility either. Hence, not cut and dried. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 7, 2006, 12:26am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/29 "2006-02-07T00:26:31Z")
_The Nation_ this week has a good, short article: “NSA Spying Myths,” by legal affairs correspondent David Cole – [http://www.thenation.com/doc/20060220/cole](http://www.thenation.com/doc/20060220/cole). ---
**Author:** ![DoctorJ](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/doctorj/32/2904_2.png) [@DoctorJ](https://boards.straightdope.com/u/DoctorJ)\ **Post date:** [February 7, 2006, 12:27am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/30 "2006-02-07T00:27:29Z")
> [@](#): > > Right now on CSPAN, Debra Burlingame (wife of AA pilot killed on 9/11) is talking about how this program is “vital to the national security”. That is not the issue. The issue is the legality of the program. It might be the greatest thing since sliced bread, but if it ain’t legal we need to either make it legal or scuttle it. I missed that. I did hear about Gonzales’s repeated references to presidents from Washington to Roosevelt using warrantless surveillance…which is totally irrelevant, since the law in question was passed in 1978. The way I see it, if there were a case to be made, they wouldn’t be leaning on such BS. ---
**Author:** ![Malodorous](https://avatars.discourse-cdn.com/v4/letter/m/e47774/32.png) [@Malodorous](https://boards.straightdope.com/u/Malodorous)\ **Post date:** [February 7, 2006, 1:10am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/31 "2006-02-07T01:10:30Z")
> [@BrainGlutton](#): > > 1. The AUMF also authorizes the Admin to disregard FISA; and I’ve seen no plausible or coherent argument put forth on that point yet, either. I believe the argument is that the AUMF authorized the prez to do whatever activities one would reasonably expect in a wa. Since in a war one would normally assume the US would tap the phones of the enemy in wartime without going through the courts, the AUMF legalizes the NSA program. I don’t buy it either, but that’s the argument as I understand it. What’s troubling is that, in the case of Hamdi, there was a clearly wronged person to bring a case before the SCOTUS. Here, we don’t know who is being monitored, so there isn’t anyone to bring a case and test it in the courts. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 7, 2006, 1:12am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/32 "2006-02-07T01:12:14Z")
> [@DoctorJ](#): > > I missed that. I did hear about Gonzales’s repeated references to presidents from Washington to Roosevelt using warrantless surveillance…which is totally irrelevant, since the law in question was passed in 1978. > > The way I see it, if there were a case to be made, they wouldn’t be leaning on such BS. Well, it all depends on what those presidents relied upon for the authority to wiretap. If, as Gonzales alleges, that authority is derived from the Constitution, then Congress cannot pass a law overriding that authority. That is not to say that FISA is meaningless, but that it does not constrain the president. The BS, as I see it, is in all the blather from the administration and some Republicans along the lines of “If al Qeada is talking to someone in the US, then we want to know about it.” As many Demcocrats pointed out, that is not the issue. No on disputes the need to know such things, but how we go about getting that information and what limits there are to what can be gotten. Leahy, IIRC, asked if the president had the authority to open mail that was supsected to be from al Qaeda operatives. Gonzales had not comment. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [February 7, 2006, 7:23am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/33 "2006-02-07T07:23:29Z")
One interesting comment tonight on _Hardball_ by one of the reporters who broke the story is that if two people have international cell phones and both of them are **within** the United States, the NSA has no way of knowing that it is not an international call and can listen in. He also said that if there is a call from a known terrorist to someone in the United States, then the relationships of the person in the U.S. for his entire life are examined and the relationships of **those people** are also explored. This “search” goes about three layers deep. Chris Matthews even made reference to six degrees of Kevin Bacon. ---
**Author:** ![What\_the](https://avatars.discourse-cdn.com/v4/letter/w/f4b2a3/32.png) [@What\_the](https://boards.straightdope.com/u/What_the)\ **Post date:** [February 7, 2006, 11:44am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/34 "2006-02-07T11:44:31Z")
> [@BobLibDem](#): > > Exactly what qualifies Debra Burlingame to tell us how vital this is? She lost a husband and of course she has our deepest sympathies. But that doesn’t make her an expert on intelligence nor does it give her opinion any more weight than mine. Must be Cindy Sheehan was busy. ---
**Author:** ![Evil\_Captor](https://avatars.discourse-cdn.com/v4/letter/e/f17d59/32.png) [@Evil\_Captor](https://boards.straightdope.com/u/Evil_Captor)\ **Post date:** [February 7, 2006, 1:21pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/35 "2006-02-07T13:21:22Z")
Even if nothing substantive comes out of the hearings, it was great fun listening to both Democratic and Republican senators beating Gonzalez about the head and shoulders. The Repubs asked some hard questions, but Feingold and a couple of Democrats accused Gonzalez of lying, more or less to his face. Gonzalez didn’t respond of course. It strikes me that the whole purpose of sending Gonzalez, from the Admin. point of view, was to give the Senators someone to beat up on, a la Scott McClellan and the press corps. Just like McClellan, Gonzalez dummies up and does the “rope a dope” when the questions come in fast and hard. They say they can’t possibly answer the question, etc., while the Admin. goes on to do whatever the hell it likes, legal or illegal, moral or immoral, treasonous or not. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [February 7, 2006, 1:23pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/36 "2006-02-07T13:23:31Z")
[Jimmy Carter has weighed in.](http://news.yahoo.com/s/ap/20060207/ap_on_re_us/eavesdropping_carter) > [@](#): > > The former president also rebuked Attorney General Alberto Gonzales for telling Congress that the spying program is authorized under Article 2 of the Constitution and does not violate the 1978 Foreign Intelligence Surveillance Act passed during Carter’s administration. Gonzales made the assertions in testimony before the Senate Judiciary Committee, which began investigating the eavesdropping program Monday. > > “It’s a ridiculous argument, not only bad, it’s ridiculous. Obviously, the attorney general who said it’s all right to torture prisoners and so forth is going to support the person who put him in office. But he’s a very partisan attorney general and there’s no doubt that he would say that,” Carter said. “I hope that eventually the case will go to the Supreme Court. I have no doubt that when it’s over, the Supreme Court will rule that Bush has violated the law.” Let’s see if the Republican-controlled news media buries this one. Former vice president accuses Bush administration of illegal acts: Not news. Nutjob preacher declares foreign leader smitten by God: News. Former president accuses Bush administration of illegal acts: TBD. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [February 7, 2006, 3:56pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/37 "2006-02-07T15:56:54Z")
[Karl Rove has weighed in:](http://www.insightmag.com/) > [@](#): > > Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president. The sources said the blacklist would mean a halt in any White House political or financial support of senators running for re-election in November. “It’s hardball all the way,” a senior GOP congressional aide said. ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [February 7, 2006, 4:25pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/38 "2006-02-07T16:25:59Z")
Well, that’ll just make it easier to impeach him, then, won’t it? Shrub’s not that popular anymore, and one might as well be hung for a horse as for a dog. That’s the problem with these black and white kinds of things. They only work as long as your friends are afraid of you. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 7, 2006, 4:29pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/39 "2006-02-07T16:29:22Z")
> [@Squink](#): > > [Karl Rove has weighed in:](http://www.insightmag.com/) What, exactly, will the committee be voting on? ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [February 7, 2006, 4:51pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/40 "2006-02-07T16:51:07Z")
> [@John Mace](#): > > What, exactly, will the committee be voting on? Articles of Impeachment? I have no idea. Perhaps it refers to the vote on whether to swear Gonzales in? It would have been nice if the article had expanded on that a bit. [Previous page](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256.md?page=1) [Next page](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256.md?page=3)