The Bush Administration Trashes Civil Liberties of Americans

[NurseCarmen]

@Bricker

Well, that’s argumentum ad ignorantium: we don’t know, so it must be true. Sorry. I don’t agree that Bush has permitted monitoring of purely domestic calls. If he has, then I agree he would have broken the law. But he hasn’t.

So you’re answering an argumentum ad ignorantium with an argumentum ad ignorantium eh?

[Fat_Chance]

@John Mace

I read it that way at first, that is ante * seeing Bricker’s take on it. But I think he’s reading makes more sense, ipso facto*, in corpus delicti. Dominus vobiscum, amen.

I’m not so sure.

I think my reading makes sense also > in cases of war, you have a 15 day grace period to use wire taps without a warrant. After the 15 days, you must get a warrant. This helps in the case of a sudden war or attack, but makes sure that it won’t go on indefinately.

I just don’t think the wording is saying that you can use wire-taps for 15 days at a time, per person, time after time, year after year. If that were the case, why specify calendar days (its not like you would only wiretap someone during the work week, but it would make since if you are making sure to create a specific time limit after the date of the declaration of war)? What happens after the 15 days? The attorney general can just authorize another 15 days? Doesn’t that defeat the purpose?

I think Bricker is reading the law wrong (did I just accuse him of that?)

[John_Mace]

@Fat Chance

Iwhy specify calendar days

I think it’s another way of saying “consecutive days”. IOW, you can’t wiretap for 7 days, take a break for 3 days, then wiretap for another 8 days.

[treis]

@John Mace

I read it that way at first, that is ante * seeing Bricker’s take on it. But I think he’s reading makes more sense, ipso facto*, in corpus delicti. Dominus vobiscum, amen.

This reading interjects a pause when there is none indicated. If someone said:

to acquire foreign intelligence information for a period not to exceed fifteen calendar days pause following a declaration of war by the Congress.

then I would agree with your interpetation. However, as it is written there is no comma and no pause indicated. As it is written it is one phrase and should be taken as such.

[Fat_Chance]

@treis

This reading interjects a pause when there is none indicated. If someone said:

to acquire foreign intelligence information for a period not to exceed fifteen calendar days pause following a declaration of war by the Congress.

then I would agree with your interpetation. However, as it is written there is no comma and no pause indicated. As it is written it is one phrase and should be taken as such.

Exactly!

And after some reading around the web, it seems most agree.

In which case, it seems quite obvious that Bush is breaking the law, and continues to do so.

Bricker, leaving aside the questions of “foreign” and “declaration of war” if the 15 day interpretation is as above, do you agree that the law is being broken?

[monstro]

crickets

[Zoe]

Bricker, you are really good at providing insight into what direction the Administrative arguments may take.

Our “ship of state” may well take on water through judicial loopholes.

When it reaches the point that legal scholars have to rely on the argument about whether or not our Congress has declared war, we are sunk.

Your technicalities are no longer about a democracy that will survive unharmed. Sometimes oridinary people see a technicality for what it is. This isn’t just a matter that is resolved entirely in the Congress or the Supreme Court.

[treis]

In regards to whether or not the resolution passed after 9/11 constitutes a declaration of war here are the times when war was actually declared (minus the Mexican-American war becuase I can’t find it).
The Declaration of War against Germany in WWII:

The War Resolution

Declaring that a state of war exists between the Government of Germany and the government and the people of the United States and making provision to prosecute the same.

Whereas the Government of Germany has formally declared war against the government and the people of the United States of America:

Therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the government to carry on war against the Government of Germany; and to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States

http://www.law.ou.edu/hist/germwar.html

Against Japan:

JOINT RESOLUTION Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same.

Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.

http://www.law.ou.edu/hist/japwar.html

Against Germany in WWI

Originally Posted by Declaration of War against Germany in WWI
Joint Resolution Declaring that a state of war exists between the Imperial German Government and the Government and the people of the United States and making provision to prosecute the same.

Whereas the Imperial German Government has committed repeated acts of war against the Government and the people of the United States of America; Therefore be it Resolved by the Senate and the House of Representatives of the United States of America in Congress Assembled, that the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared; and that the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States.

Against Spain in the Spanish-American War

An Act Declaring that war exists between the United States of America and the Kingdom of Spain.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, First. That war be, and the same is hereby, declared to exist, and that war has existed since the twenty-first day of April, anno Domini eighteen hundred and ninety-eight, including said day, between the United States of America and the Kingdom of Spain.

Second. That the President of the United States be, and he hereby is, directed and empowered to use the entire land and naval forces of the United States, and to call into the actual service of the United States the militia of the several States, to such extent as may be necessary to carry this Act into effect.

Approved, April 25, 1898.

Against Britain in the war of 1812

An Act Declaring War Between the United Kingdom of Great Britain and Ireland and the Dependencies Thereof and the United States of America and Their Territories.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That war be and the same is hereby declared to exist between the United Kingdom of Great Britain and Ireland and the dependencies thereof, and the United States of America and their territories; and that the President of the United States is hereby authorized to use the whole land and naval force of the United States to carry the same into effect, and to issue to private armed vessels of the United States commissions or letters of marque and general reprisal, in such form as he shall think proper, and under the seal of the United States, against the vessels, goods, and effects of the government of the said United Kingdom of Great Britain and Ireland, and the subjects thereof

APPROVED, June 18, 1812

I couldn’t find the declaration of war on Mexico during the Mexican-American war but I suspect its more of the same. In each of the resolutions it is stated in no uncertain terms that the country is in a state of war. Compare with the resolution after 9/11:

JOINT RESOLUTION

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

  Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, 

SECTION 1. SHORT TITLE.

  This joint resolution may be cited as the `Authorization for Use of Military Force'. 

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

  (a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. 

  (b) War Powers Resolution Requirements- 

        (1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution. 

        (2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.  

Notice that there is no language at all that suggests that Congress intends to declare war. In fact this resolution is made in accordance with the war powers act that specifically differentiates between a state of war and military action authorized by congressional resolution.

From the war powers act:

© The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

© Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution.

Lest you think Bush believed that the resolution constituted a declaration of war lets see what he said in his letter to congress after starting the war in Afghanistan pursuant to the War Powers Act:

I appreciate the continuing support of the Congress, including its enactment of Public Law 107-40, in these actions to protect the security of the United States of America and its citizens, civilian and military, here and abroad.

http://www.yale.edu/lawweb/avalon/sept_11/president_040.htm

Notice he wrote enactment of Public Law not “passage of a Declaration of War”.

[Bricker]

@Fat Chance

Bricker, leaving aside the questions of “foreign” and “declaration of war” if the 15 day interpretation is as above, do you agree that the law is being broken?

Sure.

But the phrase refers to fifteen days per target, not fifteen days total. What sort of war lasts fifteen days?

[Bricker]

@Zoe

Bricker, you are really good at providing insight into what direction the Administrative arguments may take.

Our “ship of state” may well take on water through judicial loopholes.

When it reaches the point that legal scholars have to rely on the argument about whether or not our Congress has declared war, we are sunk.

Your technicalities are no longer about a democracy that will survive unharmed. Sometimes oridinary people see a technicality for what it is. This isn’t just a matter that is resolved entirely in the Congress or the Supreme Court.

Are you saying that we should rely upon the majority opinion of the country to determine if Bush broke the law?

[Bricker]

@treis

http://www.yale.edu/lawweb/avalon/sept_11/president_040.htm

Notice he wrote enactment of Public Law not “passage of a Declaration of War”.

So what? There is no legal significance in the President’s choice of words. And I’ve already said that while “declared war” may well be a term of art when used in the War Powers Resolution, it’s used in a more broad way in 50 USC 1811.

[Fat_Chance]

@Bricker

Sure.

But the phrase refers to fifteen days per target, not fifteen days total. What sort of war lasts fifteen days?

First - why are you so sure you are right, when some here, and many other news sources and blogs agree with my reading of the law?

Second, I still don’t think you understand - I am saying the wording of the law says that the President, through the attorney general, can get wiretaps without a warrant, until 15 days after the date war is declared. - which, to me, makes much more sense when reading the law (as mentioned above, giving the pres a window during the beginning of the war to gather quick intel before needing a warrant, or falling back on the 72 hour rule)

For someone who is so exact with reading the precise words of a sentance, you seem to be reading way more into this law than is there. Where does it say, or even imply, “15 day period” or “per target”. ??

It clearly says “…fifteen calendar days following a declaration of war by the Congress.”

Am I missing something, cause I could be completely wrong here, but you’ll have to help me and show me exactly how??

[treis]

@Bricker

So what? There is no legal significance in the President’s choice of words. And I’ve already said that while “declared war” may well be a term of art when used in the War Powers Resolution, it’s used in a more broad way in 50 USC 1811.

A term of art? What does that mean?

[treis]

@Bricker

So what? There is no legal significance in the President’s choice of words. And I’ve already said that while “declared war” may well be a term of art when used in the War Powers Resolution, it’s used in a more broad way in 50 USC 1811.

I also believe that the War Powers Resolution does not require the President to report to congress when there is a declaration of war. Do you have a different reading of Section 4?

[Fat_Chance]

@Bricker

So what? There is no legal significance in the President’s choice of words. And I’ve already said that while “declared war” may well be a term of art when used in the War Powers Resolution, it’s used in a more broad way in 50 USC 1811.

Again, you and you alone, have decided what everything in this law means:

• declaration of war doesn’t mean the same thing as the official DECLARATION OF WAR
• “15 days” really means a random period of 15 days, not “fifteen calendar days following a declaration of war by the Congress.”

Now I know that you occasionally throw in your standard disclaimer of “the way the admin might argue” which is all well and good, but this is what you are arguing as well correct?

If not tell us

So, we all understand Bush and the admin may come up with all sorts of reaching random ways of reading the law, but do you agree thier interpretation is correct?

[Rachm_Qoch]

The more I look at this, the more it looks like the wiretapping actually might have (legal) justification.

From what I gather, FISA law governs foreign surveillance within US borders, and EO 12333 governs foreign surveillance abroad. So, if NSA bugged my phone in the course of my daily chats with Habib in Kandahar, they would legally need a FISA warrant. On the other hand, if they bugged Habib’s phone in Kandahar, they would be covered by EO 12333. 12333 delegates authority for establishing surveillance guidelines to the Attorney General, and it seems the AG has been intimately involved in all this.

So, giving Bush the benefit of the doubt and assuming all communications intercepts physically took place overseas, no law was broken.

Or am I missing something?

[SteveG1]

@ElvisL1ves

“A period not to exceed fifteen calendar days” is crystal clear too.

Your cherry-picking isn’t often this blatant, Bricker. You’re slipping.

@The Law in USC 50

-CITE-
50 USC Sec. 1811 01/06/03

-EXPCITE-
TITLE 50 - WAR AND NATIONAL DEFENSE
CHAPTER 36 - FOREIGN INTELLIGENCE SURVEILLANCE
SUBCHAPTER I - ELECTRONIC SURVEILLANCE

-HEAD-
Sec. 1811. Authorization during time of war

-STATUTE-
Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a
court order under this subchapter to acquire foreign intelligence
information for a period not to exceed fifteen calendar days
following a declaration of war by the Congress.

-SOURCE-
(Pub. L. 95-511, title I, Sec. 111, Oct. 25, 1978, 92 Stat. 1796.)

-End-

notwithstanding adv : despite anything to the contrary, or in spite of

I can take this to mean, notwithstanding any pre-existing or conflicting law (not USC 50). So, then it means all the rest of USC 50 1801-1821applies, as 1811 is one small subset of it - unless all the rest, 1801 through 1821 was just verbage to pad the word count.

Let’s simplify now

Notwithstanding any other law (or regardless of any “not 50US”), the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence (that is foreign, as defined and spelled out in all the other subsets that are being studiously ignored) information for a period not to exceed fifteen calendar days (15 calendardays as in war starts on day 0 and AG authorization expires on day 15, NOT an eternal and continual reauthorization) following a declaration of war by the Congress (as in an official and fully understood/agreed we gonna kill you sucker war declaration by Congress - not some hooey presidential war against some concept or show of intent to twist arms to force some imspection).
So, in the event of a declared war, the AG can authorize for 15 calendar days. He still has to comply with the rest of USC50. He and the president can not keep going forever. Reauthorizing every 45 days is 30 days past the time limit, and is not “allowed”. The wording is clear. After 15 calendar days, the surveillance must stop, or all the previous subsets say warrant WILL be requested…
ALL of USC 50 applies. In cherry picking, we are throwing out all the rest of USC 50. It doesn’t work that way.

I am replying late because my cable modem was down all afternoon.

[E-Sabbath]

I, ah, fail to see any mention of the wiretapping happening overseas. It seems to involve wiretapping of americans, and monitoring of their internet usage, but no mention of the location of the wiretapping is listed anywhere I can find. Except, of course, for the location of the NSA.

[Blalron]

@Bricker

Well, all I’m doing is rebutting the “he broke the law” argument. You get no contradiction on “he was unwise” from me.

Please tell me Bricker, why is it ok for the President to twist the law into a pretzel to fit his agenda, but when a judge does it he is an evil “activist” judge.

[Bricker]

@Blalron

Please tell me Bricker, why is it ok for the President to twist the law into a pretzel to fit his agenda, but when a judge does it he is an evil “activist” judge.

Please tell ME where I said it was OK for Bush to have done this?

I never have, In fact, I’ve repeatedly said it’s poor public policy, it’s unwise, it’s not a good idea.

BUT IT’S NOT CRIMINAL.

Now an activist judge is also an example of poor public policy, unwise, not good idea. But also not criminal. And, indeed, you may search my 12,000+ posts diligently without finding even one post in which I suggested charging activist judges with a crime or putting them in prison.

Does that answer your question?

Bush - unwise: yes. Criminal: no.
Activist judges: unwise: yes. Criminal: no.

OK?