# 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:** 4
**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 7, 2006, 8:48pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/61 "2006-02-07T20:48:38Z")
> [@John Mace](#): > > They won’t get them. > That’s interesting, but unclear how that would affect the program if the suit was successful. > Firvilous lawsuit-- it won’t go anywhere unless they have specific claims, which they don’t. > Good question. It might be next to impossible to defund this program, even if there were the votes to do so (which I don’t think there would be). Seems to me then, that the only option left to those who think the President is violating the law, is to impeach him. Do you agree? ---
**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, 8:54pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/62 "2006-02-07T20:54:46Z")
> [@Hamlet](#): > > Seems to me then, that the only option left to those who think the President is violating the law, is to impeach him. Do you agree? Probably. But that’s not realistic, as I’m sure you know. OTOH, if no one can actually point to specific examples where specific people had their rights violated, what is the issue? I understand and share the concern about the potential for abuse in such a program, but if the majority of people want it, and it hasn’t been shown by the SCOTUS to violate the constitution, then we’re stuck with it whether we like it or not. That’s the way democracy works. ---
**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, 9:08pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/63 "2006-02-07T21:08:47Z")
> [@John Mace](#): > > I understand and share the concern about the potential for abuse in such a program, but if the majority of people want it, and it hasn’t been shown by the SCOTUS to violate the constitution, then we’re stuck with it whether we like it or not. Whether “the majority of the people want it” is uncertain; there are polls saying they do, and polls saying they don’t – it depends on how you word the question. See this thread: [http://boards.straightdope.com/sdmb/showthread.php?t=356354](http://boards.straightdope.com/sdmb/showthread.php?t=356354) ---
**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 7, 2006, 9:15pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/64 "2006-02-07T21:15:58Z")
> [@John Mace](#): > > Probably. But that’s not realistic, as I’m sure you know. OTOH, if no one can actually point to specific examples where specific people had their rights violated, what is the issue? I understand and share the concern about the potential for abuse in such a program, but if the majority of people want it, and it hasn’t been shown by the SCOTUS to violate the constitution, then we’re stuck with it whether we like it or not. That’s the way democracy works. Well, the wishful thinking on our republic form of government is that the branches of government will work together. It is extremely rare events, like the seizure of steel mills or Watergate, that define the Constitution and the separation of powers. Which is why I think it is incredibly important for Congress to get a spine and get to the bottom of this. Up to, and including Gonzales’ testimony, the administration has stonewalled all attempts to determine the actual facts and the legality of the program. I can understand the desire to avoid public dissemination of the precise details of the program. So we’re at a crossroads. Apparently you’re willing to wash your hands of it and let the President do as he wishes, without explaining it to Congress or the Courts, so we can even start to determine the Constitutionality of the program. But that’s how tyranny works, not a republic. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 7, 2006, 9:17pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/65 "2006-02-07T21:17:01Z")
There also has been little mass-media investigation into Bush’s claim of legality - instead, we have the usual mealymouthed “Bush’s detractors say this, he says that” shit that would make the Baby Ed Murrow cry. It not incidentally puts a gloss coat on the turd that makes it look attractive to the more casual thinkers who form the bulk of poll respondents. ---
**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, 9:55pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/66 "2006-02-07T21:55:20Z")
> [@BrainGlutton](#): > > Whether “the majority of the people want it” is uncertain; there are polls saying they do, and polls saying they don’t – it depends on how you word the question. See this thread: [http://boards.straightdope.com/sdmb/showthread.php?t=356354](http://boards.straightdope.com/sdmb/showthread.php?t=356354) I should have said “thru their elected representatives”. The only poll that counts in this case is a vote in Congress or votes in the '06 election. > [@Hamlet](#): > > Apparently you’re willing to wash your hands of it and let the President do as he wishes, without explaining it to Congress or the Courts, so we can even start to determine the Constitutionality of the program. But that’s how tyranny works, not a republic. I never said I wanted to wash my hands of it. I’m just uncertain what, legally, can be don about it. Ultimately, I’ll get to vote for some Congresspeople and a new president, so that’s when I’ll take this program into account. But if you’re asking me I’m ready to man the barricades over this… no, I’m not. ---
**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, 9:57pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/67 "2006-02-07T21:57:59Z")
> [@John Mace](#): > > But if you’re asking me I’m ready to man the barricades over this… no, I’m not. If you’re not part of the solution . . . ---
**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, 10:07pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/68 "2006-02-07T22:07:32Z")
> [@BrainGlutton](#): > > If you’re not part of the solution . . . There is more than one part to the solution… Which barricades are you manning, btw? 🙂 ---
**Author:** ![bup](https://avatars.discourse-cdn.com/v4/letter/b/6bbea6/32.png) [@bup](https://boards.straightdope.com/u/bup)\ **Post date:** [February 7, 2006, 10:14pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/69 "2006-02-07T22:14:57Z")
> [@John Mace](#): > > OTOH, if no one can actually point to specific examples where specific people had their rights violated, what is the issue? Well, as of course you know, and even intimate, just because we can’t point to specific examples where specific people had their rights violate, doesn’t mean it’s not occurring. So I’m troubled by your question. Do you really mean, “what is the issue?” in the sense of, “what’s to complain about?” If your bank refused to send, or reveal, customer’s financial statements anymore, and said “trust us, we’re not taking anybody’s money - unless we determine it was illegally obtained,” you would be unable to show the bank had taken money from _you_ - or anybody - illegally. But there’s most definitely an issue, isn’t there? ---
**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 7, 2006, 10:41pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/70 "2006-02-07T22:41:52Z")
> [@John Mace](#): > > I should have said “thru their elected representatives”. The only poll that counts in this case is a vote in Congress or votes in the '06 election. > I never said I wanted to wash my hands of it. I’m just uncertain what, legally, can be don about it. Ultimately, I’ll get to vote for some Congresspeople and a new president, so that’s when I’ll take this program into account. But if you’re asking me I’m ready to man the barricades over this… no, I’m not. I am uncertain about what could be done about it also. I suppose Congress could get serious about the investigation and subpoena Gonzales et. al and, if answers are not forthcoming, use their contempt powers. Continued stonewalling would then be taken seriously, rather than shrugged off, and we could have a real check on the power of the executive. ---
**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, 11:48pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/71 "2006-02-07T23:48:42Z")
> [@Hamlet](#): > > I am uncertain about what could be done about it also. I suppose Congress could get serious about the investigation and subpoena Gonzales et. al and, if answers are not forthcoming, use their contempt powers. Continued stonewalling would then be taken seriously, rather than shrugged off, and we could have a real check on the power of the executive. I don’t know that he was stonewalling. This is a classified program, and he can’t talk about the details with cameras rolling. Perhaps the Intel committee (or some subset of that committee) will meet with him in closed chambers where he can actually talk about the program in detail. Even then, it’s unclear how it would be stopped. How does Congress throttle a classified presidential initiative? Beats me! ---
**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 8, 2006, 12:29am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/72 "2006-02-08T00:29:25Z")
> [@bup](#): > > Well, as of course you know, and even intimate, just because we can’t point to specific examples where specific people had their rights violate, doesn’t mean it’s not occurring. True, but it doesn’t mean that it is occurring either. > [@](#): > > So I’m troubled by your question. Do you really mean, “what is the issue?” in the sense of, “what’s to complain about?” Almost, but not quite. I recognize that there the government is going to do a lot of things that we don’t know about. This is just one program, among many, that we don’t know the details of. At some point we have to trust the Congress to provide oversight for these programs. Are there significant numbers of Congressmen calling for an end to this program? No. In fact, they’re stumbling over themselves asking Bush to tell them what they can do to remove any doubt about the legality of it. So what are we left with? A president who says the program is legal and a Congress that isn’t sure but wants to make it legal if it’s not. And the only way to resolve the issue independently is for it to go the SCOTUS, which seems unlikely. I’m just kinda left confused by the whole process. How can we not hashed this issue out yet in our \> 200 years as a country…? ---
**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 8, 2006, 12:36am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/73 "2006-02-08T00:36:03Z")
> [@John Mace](#): > > How can we not hashed this issue out yet in our \> 200 years as a country…? We did. In 1978. When Congress enacted FISA. It wasn’t until this story broke, that this administration argued FISA was an unconstitutional infringement upon the executive power. Funny how that works out. ---
**Author:** ![Malodorous](https://avatars.discourse-cdn.com/v4/letter/m/e47774/32.png) [@Malodorous](https://boards.straightdope.com/u/Malodorous)\ **Post date:** [February 8, 2006, 1:33am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/74 "2006-02-08T01:33:46Z")
> [@John Mace](#): > > At some point we have to trust the Congress to provide oversight for these programs. To second **Hamlet** , that’s sort of the problem. The administration seems to be trying to bypass oversight. They’re ignoring a law passed by congress, even though all indications are that congress would happily change the law to suit the administrations whims. Personally, the wiretaps themselves don’t really bother me. The gov’t should need a lesser standard of proof to take action in terrorism cases then in more normal domestic investigations. But if that is the course we’re going to take, we _need_ to have oversight of these programs. To let the power to strip someone of their civil liberties rest with one person is just too great a risk. The system of checks and balances has kept our country from tyranny for 200 years, it needs to be preserved. And for the record I don’t think Bush is trying to grab power to turn the US into some sort of facist state. I think he actually just wants to catch terrorists. But someday someone is going to be president who will be tempted to abuse the “terrorist” excuse to go after other, more benign types of “subversives”. It’s happened in other countries, and to think it can’t happen here is the most dangerous sort of American exceptionalism. ---
**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 8, 2006, 2:06am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/75 "2006-02-08T02:06:53Z")
> [@Hamlet](#): > > We did. In 1978. When Congress enacted FISA. It wasn’t until this story broke, that this administration argued FISA was an unconstitutional infringement upon the executive power. Funny how that works out. Cute. Congress doesn’t get to say what is constitutional and what is not. But you knew that. THe administration obviously did make the argument to those members of Congress who were briefed on the program, if only implicitly. **Maladorous** : The question of oversight is my concern, too. I would much prefer that an independent arm of the government had oversight of such programs, but I don’t know how you go about requiring that there be more oversight beyond the minimal notice to Congress that Bush has given so far. Ultimatelly, this is going to be decided in the voting booth, and I think in that case that the decision will be in Bush’s favor. ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [February 8, 2006, 2:46am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/76 "2006-02-08T02:46:37Z")
> [@John Mace](#): > > It doesn’t matter, according to Bush’s argument. If he has constitutional authority to wiretap, Congress can’t take that away by passing a law. Additionally, of course, he argues that the AUMF gave him implicit war powers that supercede FISA. > > Look, this is a classic battle of power between the legislative and executive branches of government. The only forced resolution would be for Congress to defund the program, or for the courts to decide otherwise. But this won’t go to court unless the adminstration uses this wiretap infor against someone as evidence in a trial. Maybe Bush needs to take some law courses then. Congress makes laws - it’s their job. If it is unconstitutional law, then the courts say so. Is Bush saying we don’t need Congress or the Supreme Court anymore??? ---
**Author:** ![SteveG1](https://avatars.discourse-cdn.com/v4/letter/s/bb73d2/32.png) [@SteveG1](https://boards.straightdope.com/u/SteveG1)\ **Post date:** [February 8, 2006, 2:51am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/77 "2006-02-08T02:51:01Z")
> [@John Mace](#): > > I don’t know that he was stonewalling. This is a classified program, and he can’t talk about the details with cameras rolling. Perhaps the Intel committee (or some subset of that committee) will meet with him in closed chambers where he can actually talk about the program in detail. Even then, it’s unclear how it would be stopped. How does Congress throttle a classified presidential initiative? Beats me! There must be some way to cut the purse strings (?) ---
**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 8, 2006, 2:57am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/78 "2006-02-08T02:57:15Z")
> [@SteveG1](#): > > Maybe Bush needs to take some law courses then. Congress makes laws - it’s their job. If it is unconstitutional law, then the courts say so. Is Bush saying we don’t need Congress or the Supreme Court anymore??? If Congress passed a law saying that it, and not the president, was going to appoint the next Supreme Court justice, what should the president do? Run to the courts, or just go ahead and appoint the next SCOTUS justice? I say the latter. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [February 8, 2006, 3:09am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/79 "2006-02-08T03:09:52Z")
> [@John Mace](#): > > There is more than one part to the solution… > > Which barricades are you manning, btw? 🙂 Just make sure to sleep with the lights on. ---
**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 8, 2006, 3:11am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/80 "2006-02-08T03:11:39Z")
> [@John Mace](#): > > Cute. Congress doesn’t get to say what is constitutional and what is not. But you knew that. THe administration obviously did make the argument to those members of Congress who were briefed on the program, if only implicitly. As I pointed out earlier, Congress had introduced legislation to lower the standard necessary for the President to meet to wiretap using FISA. THIS administration said that wasn’t necessary and that it could cause problems with the constitutionality of FISA. Not once did the administration argue that the statute infringed upon the President’s power. Well, until they got caught, that is. THEN it became an argument. And, as I said, this isn’t a new argument. Back when FISA was enacted, they had the entire debate over whether Congress could legislate in this area. Congress properly concluded that “even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted.” This analysis, Congress noted, was “supported by two successive Attorneys General.” Even the Justice Department agreed when FISA was enacted. > [@JonMace](#): > > If Congress passed a law saying that it, and not the president, was going to appoint the next Supreme Court justice, what should the president do? Run to the courts, or just go ahead and appoint the next SCOTUS justice? I say the latter. But, and it’s a really big but, in this case, the President is not relying on an express power granted in the Constitution, but rather some plenary (or, if you prefer emanation and penumbra) power. It makes a huge difference. [Previous page](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256.md?page=3) [Next page](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256.md?page=5)