Nobody can because there is no explanation. For crying out loud, you can go before the court **3 days later **and get a retroactive warrent. Clearly this is just because little Georgie wanted to do it his way and nobody can tell him different. Nyah. 
Just why aren’t they illegal?
A brief synopsis please.
Just why aren’t they illegal?
A brief synopsis please.
Y’know, everything in this thread makes a lot more sense once you accept the hypothesis that friend Bricker is finally starting to crack from five years of defending the excesses of the Bush Administration. Not that you can blame him, though – anyone trying to apologize for this pack of weasels is bound to snap sooner or later…
I’ll let the Vice President explain it to you.
The power-hungry bastard wants to bring us back to the Watergate era of government. Worse, he really and truly wants the presidency to be a fucking dictatorship. This guy scares the shit out of me.
It’s so cute, though, that Dick still refers to Dubya as “The President”, isn’t it?
Apparently Dick Two also thinks that what Tricky Dick did was reasonable.
Disgusting little men they are.
-Joe
You should know better.
If a cop searches your house without a warrant, that’s unconstitutional. But is it criminal?
Of course not. Your remedy is suppression of the improperly-seized items, not a jailing of the cop.
So let’s go down your list, shall we?
[ul]
[li]Unconstitutional; Violations of citizen’s rights under the 4th Amendment - arguably true, although I question whether society is prepared to recognize a reasonable of expectation of privacy in overseas phone calls[/li][li]Executive power grab - absolutely true[/li][li]Arrogance run rampant - yes[/li][li]Ignorant of history - arguably yes[/li][li]Idiotic - pretty damn dumb, yes[/li][li]End run around the warrant requirement - absolutely[/li][li]Completely unnecesary - arguably yes[/li][li]Despotic - I’d argue this[/li][li]Not criminal - true[/li][/ul]
So what’s your point? I’m not cheering the move. I’m just rebutting the idea that it’s a criminal act. You want to call it an idiotic act, be my guest; you get no major complaints from me.
I’m not saying that. There is a difference between the malo in se act of killing and the malum prohibitum act of tapping overseas phone calls.
Are you saying that the only objection to my example is the crime comitted? Insert “Claiming one thousand kids on my taxes” with “killing the rose clipping bastard” Am I still in the clear in the above example.
Also, completely unrelated, I would like your take on the talking heads of the right use of Hamdi as a precedent, even though no such precedent existed at the time of the action.
I do.
Thanks for the lesson.
My point is that the outrage, anger, and concern over the actions of this administration need not hinge only on a determination of legality.
And, as to the legality of these wiretaps, the FISA statute in question 50 U.S.C. 1809 prohibits “electronic surveillance” and states: “A person is guilty of an offense if he intentionally . . . engages in electronic surveillance under color of law except as authorized by statute.” Now, my understanding of your argument is that, the Authorization of Use of Military Force is the “statute” that exempts the wiretaps from being criminal. Relying on Hamdi, if I understand you correctly, wiretaps of U.S. citizens, without the protections of the warrant requirement or even of FISA itself is “so fundamental and accepted an incident to war” that it is covered by the AUMF.
I don’t buy it. First, the strict, dare I say textualist, reading of the AUMF does not allow for wiretaps. Second, wiretaps are not “force”, they are much more akin to the gaining of information than of military action. Even in Hamdi, O’Connor said: “Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized.” So the Hamdi decision seems to indicate detention is fine, but interrogation, which is much more like wiretaps, is not. Third, FISA was enacted after Watergate and the Katz and Keith cases for the purpose of protecting American citizens from abuses of the executive branch. It clearly laid out the process by which this administration could have conducted it’s surveillance. This administration chose to ignore clear statutory wording, and are now trying to hide behind another, much more vague and general statute, to try and make their case. Finally, and somewhat related, is the fact that the President’s power to act is “at its lowest ebb” when acting in contradiction of Congress’ will.
Your argument that the actions of the NSA are somehow legal, is unpersuasive.
Not intended for you, but for the Gentle Lurking Reader.
I agree. I’m not outraged, but it’s fair to say I have considerable concern over this move.
Yup.
True. But the Court is not composed of strict, textualist readers. I’d be happy to see that change, but why should I accept the limits of strict reading only when benefits the opposition, and not gain the benefits the rest of the time? You want to argue that the Court should, henceforth, read EVERYTHING strictly, I’m on board. But don’t trot it out now and then reject it the next time we’re called upon to exercise another SDP-based expansion.
Question: if the Fourth Circuit - or the Supreme Court - had decided that Hamdi’s detention was not permitted, would the President have been criminally liable for kidnapping?
I’m arguing that the President’s actions are not criminal.
To each their own. What would it take for you to get outraged at this administration. Eating puppies on live television? Eavesdropping on your telephones?
Thank heaven for small favors. Do you ever wonder why that is?
Once again, there is a difference between statutory and constitutional interpretations. The Constitution is broad, general document that has not, and should not, be read as strictly as statutes.
I highly doubt Hamdi, even if decided the other way, would have determined the taking of Hamdi was unlawful. It was the detention without due process that concerned the court. The majority deferred to this administration. And look what it has gotten us.
So you concede that the NSA actions were illegal, just that they cannot be imputed to the guy who signed the order allowing it? Intriguing position.
No. I’m saying that even if we assume the NSA actions are found to have violated the law, that doesn’t automatically create a criminal situation. In the same way that if the government uses an infrared sensor on your house and the Court finds that to violate the Fourth Amendment, the cops don’t go to jail. When they used the sensor, the law didn’t address the issue.
Once a question is settled, it’s a much different posture. Bush’s position is that these acts are legal. If the Court says otherwise, that settles the issue. If he were to continue in the face of that ruling, that might be criminal. Right now, he’s following his own interpretation, and there is no authority to contradict it.
It’s because the Left has been much more successful in pushing judicial philosophy. That’s changing. Roberts, Ailito, Scalia, Thomas. Just need one more good one.
But weren’t the questions addressed in 1978?
We’ve, well, actually you’ve, come a long way from declaring there was no law that Bush violated and that his actions were both legal and constitutional. That’s a good step.
As with a vast majority of things in the legal world, there are arguments on both sides. The ones indicating that the NSA wiretaps were illegal and unconstitutional carry, to me, much more weight than the ones that do not, for all the reasons I’ve outlined above. You are, of course, entitled to your opinion.
But, there is a difference between saying that the wiretaps did not violate the law and saying that the president will not bear criminal responsibility. It is completely possible that FISA was violated, that the wiretaps were unconstitutional, but that there will be no criminal liability for Bush or his administration. In fact, I would agree with you that it is highly unlikely anyone will be indicted, prosecuted, or impeached over this. But that still doesn’t mean the law wasn’t broken or that the President acted within the constraints of the Constitution.
YES THEY WERE. These seaches clearly violate § 1809 despite your insistance otherwise.
That, and a handy-dandy 3 pronged test, or 3 levels of scrutiny and Bush is home free. 
Bullshit. There is the Congress, who made the FISA law and there is the Supreme Court, who will be quite interested in hearing what the Executive thinks is the limit to their authority.
Tell me, what other acts do the authorizations for the use of force in the War on Terror also authorize if, as you so ludicriously maintain, they did in fact authorize warrantless searches and wiretaps. We know that the administration also thinks they have the authority to declare anyone, even an American citizen arrested on American soil without a shred of evidence against him that is not “secret”, an enemy combatant and detain them indefinitely. Can the President order warrantless searches of American citizen’s homes under the same authority you claim for him? Could the President order an American citizen to lodge a soldier in his home and provide him with food at the citizen’s expense? Could the President nationalize Blackwater or one of the other mercenary companies and impress its employees into military service at military pay grade, much lower than what they’re currently being paid? Does the War on Terror authorize the extrajudicial killing of American citizens on American soil if the President delcares them an enemy combatant? Do they even have to declare him anything, or can they just whack him because they had it on real good authority that he was a bad man?
And what about me? I am what you would call a political opponent of the president. I believe he lied to the American people to start the Iraq war. I believe he should be impeached, and I fully intend to continue telling anyone who will listen that he should be removed from office in the manner proscribed in the Constitution. My views on the war and the President have been called “unAmerican”, and I have been called a traitor on this board in to my face. Can the President, under the authority you claim for him Bricker, order my oversea phone calls monitored? Can he order my domestic calls monitored? Can he order the IRS to audit me? Can he search my home without a warrant? Can he have me detained as an enemy combatant, without access to a lawyer, without confronting me with the evidence against me? Can he have me shot?
You will no doubt call this alarmist bullshit, but you will once again be wrong. These are serious questions that we have to talk about right now. The president has declared himself above the law. Where does it end? Who defines his powers in wartime, if not the Constitution and the Congress? If the answer is “he does”, then the seeds of dictatorship have been sown.
“The Left” meaning “Not reactionary”, apparently. Ever wonder why reactionaryism hasn’t been more successful? Is it only because of superior political tactics by the “enemy”, or simply because the mainstream is not reactionary and in fact is more progressive than the Court’s *current * composition?
But not activists, no. Nobody who’d actually want to contain and ignore the last century and a half of jurisprudence and return standards to the pre-Civil-War era. That would be wrong, of course. What, it wouldn’t? You’re *for * that? You not only want to create political change in the reverse direction, you want it done by the courts? Oh yeah, it’s only judicial activism if you disagree with it, as has been pointed out to you many times without cogent rebuttal.