# 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:** 5
**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, 3:32am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/81 "2006-02-08T03:32:52Z")
> [@John Mace](#): > > 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 how far can we streach that? The constitution and precedent are pretty explicit that the prez gets to appoint the SCOTUS, it’s hardly equivalent to a claim that the president can ignore all laws so long as it’s in pursuit of something that he himself classifies as national defense, especially when congress already has a history of passing laws that effect what the prez can do during wartime. If we allow the prez to basically interpret his own powers by fiat, congress and the SCOTUS do become more or less superfluous, at least in cases where the SCOTUS is unable to rule and congress is unwilling to go as far as impeachment. One hopes that Repubs in congress will remember that it might be Hillary or Howard Dean that gets to make up thier own powers in 2008, and that something more then a lot of speechifying to CSPAN will come out of the current hearings. ---
**Author:** ![Squink](https://avatars.discourse-cdn.com/v4/letter/s/b5e925/32.png) [@Squink](https://boards.straightdope.com/u/Squink)\ **Post date:** [February 8, 2006, 3:56am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/82 "2006-02-08T03:56:26Z")
Itchy Republicans: > [@](#): > > Representative Heather A. Wilson of New Mexico, chairwoman of the House Intelligence Subcommittee on Technical and Tactical Intelligence — > whose subcommittee oversees the National Security Agency broke ranks with the White House on Tuesday and called for a full Congressional inquiry into the Bush administration’s domestic eavesdropping program. [http://www.nytimes.com/2006/02/08/politics/08nsa.html?\_r=2&oref=login&oref=slogin](http://www.nytimes.com/2006/02/08/politics/08nsa.html?_r=2&oref=login&oref=slogin) ---
**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, 5:42am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/83 "2006-02-08T05:42:53Z")
> [@Hamlet](#): > > 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. Well, as I said, we don’t know what legal argument was made to those members of Congress with whom this program was discussed. If you’re talking about the legal argument it made in public, then I agree. But it’s a secret program, so why would you expect the adminstration to discuss it in public? > [@](#): > > 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. Can we have a cite for that? I’m not saying I don’t believe you, but I’d like to see the actual wording. > [@](#): > > 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. I tend to agree with you on that, but as we’ve been saying all along there is nothing in the system to stop this sort of thing short of impeachment. Maybe the system is broke…? ---
**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, 12:58pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/84 "2006-02-08T12:58:59Z")
> [@John Mace](#): > > I tend to agree with you on that, but as we’ve been saying all along there is nothing in the system to stop this sort of thing short of impeachment. Maybe the system is broke…? I would respond to that, but . . . apparently, I can’t. > **[Are we allowed to call for revolution on this board?](https://boards.straightdope.com/sdmb/showthread.php?t=357788)** > > No, I’m serious. Really. If I wanted to post a thread arguing seriously for armed political class-war revolt against the United States government, and trying to recruit volunteers for a revolutionary army, is there any SDMB forum in which the rules... ---
**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, 1:57pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/85 "2006-02-08T13:57:16Z")
> [@John Mace](#): > > Can we have a cite for that? I’m not saying I don’t believe you, but I’d like to see the actual wording. The cite is H.R. Rep. No. 95-1283, pt. 1, at 24 (1978). But lest you think I’m actually smart, I got the information from the Center for Democracy and Technology, one document of which is [here](http://cdt.org/security/20060109legalexpertsanalysis.pdf) (warning: PDF), and another [here](http://balkin.blogspot.com/FISA.AUMF.ReplytoDOJ.pdf). They were letters written by a bunch of scholars, including Dworkin, Epstein, Beth Nolan, William Sessions, and Larry Tribe to discuss the NSA issue. They’re a good resource in dealing withh the issues. > [@John Mace](#): > > I tend to agree with you on that, but as we’ve been saying all along there is nothing in the system to stop this sort of thing short of impeachment. Maybe the system is broke…? I do think a Congressional investigation, an actual, serious, and, at least in part, secret, investigation is the place to start. I think a real investigation would put pressure on this administration to stop with the stonewalling and conceit. The belief that only the President can know how the program works, and only the President can determine that it is legal and Constitutional, has yet to be seriously challenged. Not only would a serious Congressional investigation into the matter help define the issue, but it would place the President in an awkward position of having to articulate his belief that he, and only he, can determine those things. ---
**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, 2:01pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/86 "2006-02-08T14:01:00Z")
> [@John Mace](#): > > 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 would that be legal? Would Congress let it stand? The RIGHT way would be to go to the Court and get that law struck down. ---
**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, 2:48pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/87 "2006-02-08T14:48:52Z")
> [@SteveG1](#): > > But would that be legal? Would Congress let it stand? The RIGHT way would be to go to the Court and get that law struck down. No, because that would be an acknowledgement that the constitutional authority is unclear, and that a third body had to arbitrate. The RIGHT way would be to ignore it. This isn’t the boy scouts! You see, this is a power struggle and whoever blinks first loses. Now, as \*\*Hamlet \*\*pointed out, the constitutional authority that Bush asserts he has to wiretap is a bit, shall we say, less obvioius to the casual reader than is his authority to appoint SCOTUS justices. However, the adminsitration asserts that that authority is no less clear to them. This is not the first time, nor the last, that a president will claim Congress cannot encroach on his authority. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 8, 2006, 2:56pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/88 "2006-02-08T14:56:48Z")
> [@John Mace](#): > > If you’re talking about the legal argument it made in public, then I agree. But it’s a secret program, so why would you expect the adminstration to discuss it in public? Operational details certainly have a claim to secrecy. But why would the basic legal justification for it be secret? How would discussing that publicly harm the country? The lack of it is doing palpable harm. > [@](#): > > there is nothing in the system to stop this sort of thing short of impeachment. Maybe the system is broke…? Or maybe it works just fine when it’s used as intended. Why do you rule out impeachment as an action Congress can take? Abuse of power by a federal officer is exactly why that remedy exists. To take it out of consideration also takes out of consideration its deterrent value. ---
**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, 4:19pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/89 "2006-02-08T16:19:23Z")
> [@ElvisL1ves](#): > > Operational details certainly have a claim to secrecy. But why would the basic legal justification for it be secret? How would discussing that publicly harm the country? The lack of it is doing palpable harm. What part of the legal justification did he refuse to talk about? If you mean the hypotheitcals that were thrown at him, that’s just good lawyer common sense. Don’t let the oppostion frame the argument. He was there to talk about the legality of this program and this program only. He wasn’t obligated in any way to discuss other, hypothetical operations. > [@](#): > > Or maybe it works just fine when it’s used as intended. Why do you rule out impeachment as an action Congress can take? Abuse of power by a federal officer is exactly why that remedy exists. To take it out of consideration also takes out of consideration its deterrent value. I don’t rule out impeachment, it’s just that that is such an extreme mearsure and one that is highly political in nature. Given the obvious political hurdles that impeachment involves, I’d like for there to be some better way to resolve this type of issue. But if you’re satisfied with impeachment, that’s fine for you. The only thing is, it ain’t gonna happen. ---
**Author:** ![ElvisL1ves](https://avatars.discourse-cdn.com/v4/letter/e/5daacb/32.png) [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)\ **Post date:** [February 8, 2006, 4:23pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/90 "2006-02-08T16:23:29Z")
> [@John Mace](#): > > What part of the legal justification did he refuse to talk about? I was responding to your blanket justification for any refusal to talk at all. > [@](#): > > But if you’re satisfied with impeachment, that’s fine for you. The only thing is, it ain’t gonna happen. If you can propose something more appropriate, go right ahead. I can wait. ---
**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, 4:44pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/91 "2006-02-08T16:44:16Z")
> [@Hamlet](#): > > The cite is H.R. Rep. No. 95-1283, pt. 1, at 24 (1978). But lest you think I’m actually smart, I got the information from the Center for Democracy and Technology, one document of which is [here](http://cdt.org/security/20060109legalexpertsanalysis.pdf) (warning: PDF), and another [here](http://balkin.blogspot.com/FISA.AUMF.ReplytoDOJ.pdf). They were letters written by a bunch of scholars, including Dworkin, Epstein, Beth Nolan, William Sessions, and Larry Tribe to discuss the NSA issue. They’re a good resource in dealing withh the issues. Thanks. Those are pretty dense documents, so give me some time to read them before I comment. > [@](#): > > I do think a Congressional investigation, an actual, serious, and, at least in part, secret, investigation is the place to start. I think a real investigation would put pressure on this administration to stop with the stonewalling and conceit. The belief that only the President can know how the program works, and only the President can determine that it is legal and Constitutional, has yet to be seriously challenged. Not only would a serious Congressional investigation into the matter help define the issue, but it would place the President in an awkward position of having to articulate his belief that he, and only he, can determine those things. I agree 100%. Perhaps that will be done when the Intel Committee has its hearings. BTW, I’ve pointed out several times that I see this is a “simple” power stuggle between the executive and legislative branches. That doesn’t mean I agree with the executive. On the contrary, I want to see Congress fight this tooth and nail. And the Pubs would be fools to just take a partisan position and support Bush. They have a legitimate issue that vastly transcends partisan politics here, and they will certianly be on the receiving end of similar issues from future Democratic adminsitrations. I’m sure that is not lost on many of the Republicans. > [@ElvisL1ves](#): > > ``` > I was responding to your blanket justification for any refusal to talk at all. > > ``` I did? Where? I honestly don’t remember. If I said that, then I’ll gladly retratct it, but I gotta see where I said it first (exact quotes, please). I said I understood his refusal to talk about operational aspects of the (classified) program, but I certianly didn’t mean to imply that covered the legal aspects as well. And prior to the leak, there would be no way for the administration to speak publicly about the legal framework without revealing the actual program. > [@](#): > > If you can propose something more appropriate, go right ahead. I can wait. I’m still thinking about it, but will certainly post my thoughts if I can come up with something! ---
**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, 4:46pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/92 "2006-02-08T16:46:50Z")
> [@John Mace](#): > > What part of the legal justification did he refuse to talk about? If you mean the hypotheitcals that were thrown at him, that’s just good lawyer common sense. Don’t let the oppostion frame the argument. Technically and constitutionally, the Senate Judiciary Committee is not the “opposition.” ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 8, 2006, 4:51pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/93 "2006-02-08T16:51:55Z")
> [@John Mace](#): > > I agree 100%. Perhaps that will be done when the Intel Committee has its hearings. For the home audience, would this be the place that Karl Rove would be trying to strongarm Republicans into voting with the President? That is, could these hearings culminate in a vote on whether to have a formal investigation? Daniel ---
**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, 5:03pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/94 "2006-02-08T17:03:38Z")
> [@Left Hand of Dorkness](#): > > For the home audience, would this be the place that Karl Rove would be trying to strongarm Republicans into voting with the President? That is, could these hearings culminate in a vote on whether to have a formal investigation? Of course they could be. And I’m sure there are plenty of people on this board who don’t need any evidence to believe that they are. But we don’t accept claims like that in my thread with some proof! 🙂 ---
**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, 5:07pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/95 "2006-02-08T17:07:21Z")
> [@John Mace](#): > > But we don’t accept claims like that in my thread with some proof! 🙂 “without some proof”! :smack: ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 8, 2006, 5:12pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/96 "2006-02-08T17:12:32Z")
> [@John Mace](#): > > Of course they could be. And I’m sure there are plenty of people on this board who don’t need any evidence to believe that they are. But we don’t accept claims like that in my thread with some proof! 🙂 Oh, I’m not **accepting** it: it’s certainly rumor. I’m just askin: earlier you were asking (IIRC) what the committee could vote on. Daniel ---
**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, 6:20pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/97 "2006-02-08T18:20:27Z")
> [@Left Hand of Dorkness](#): > > Oh, I’m not **accepting** it: it’s certainly rumor. I’m just askin: earlier you were asking (IIRC) what the committee could vote on. Yes, I did ask that in response to the Rove link. But in fact, I’d take a step back and ask if the story is actually true in the first place. The cite linked to clearly has a political agenda… I’d like to see a cite from the mainstream press before I even believe that such pressure is being applied. Again, I’m not saying the story isn’t true, but that we haven’t established its veracity yet. ---
**Author:** ![NurseCarmen](https://avatars.discourse-cdn.com/v4/letter/n/5daacb/32.png) [@NurseCarmen](https://boards.straightdope.com/u/NurseCarmen)\ **Post date:** [February 8, 2006, 6:28pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/98 "2006-02-08T18:28:45Z")
> [@John Mace](#): > > This is not the first time, nor the last, that a president will claim Congress cannot encroach on his authority. Yet you’ve got to wonder if any president has made that claim while his party held the majority? ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 8, 2006, 6:51pm UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/99 "2006-02-08T18:51:11Z")
> [@John Mace](#): > > Yes, I did ask that in response to the Rove link. But in fact, I’d take a step back and ask if the story is actually true in the first place. The cite linked to clearly has a political agenda… I’d like to see a cite from the mainstream press before I even believe that such pressure is being applied. Again, I’m not saying the story isn’t true, but that we haven’t established its veracity yet. I agree with all this; if it seemed I was assuming the truth of the rumor, I apologize. Daniel ---
**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 9, 2006, 2:58am UTC](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256/100 "2006-02-09T02:58:32Z")
Update: Congressional pressure seems to be working. Gonzales and Hayden briefed the full House Intelligence Committee today on the operational details of the NSA program. There’s a very good segment on this on the News Hour w/ Jim Leher tonight-- an interview with Jane Harman (ranking Dem on the House Intel Com.) and Lindsey Graham (Pub on Senate Judiciary Com.). Otherwise, there’s this blurb: > [@](#): > > [White House discloses new details on eavesdropping](http://news.yahoo.com/s/nm/20060209/pl_nm/security_eavesdropping_dc) > > WASHINGTON (Reuters) - The White House, under mounting political pressure in Congress, provided the full House of Representatives intelligence committee on Wednesday with new details about its domestic spying program and pledged to do the same in the Senate. > ADVERTISEMENT > > Attorney General Alberto Gonzales and deputy U.S. intelligence chief, Air Force Gen. Michael Hayden, briefed the House panel for the first time on operational details of the National Security Agency program that has raised an outcry among Democrats and Republicans, lawmakers said. > > A White House spokeswoman said the same officials would also provide details to the Senate intelligence committee on Thursday. [Previous page](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256.md?page=4) [Next page](https://boards.straightdope.com/t/senate-judiciary-hearings-on-nsa-surveillance/343256.md?page=6)