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Domestic Surveillance By the NSA?:
James Risen and Eric Lichtblau break a tremendously important story in tomorrow's New York Times about a secret program that has permitted the NSA to spy without a warrant inside the United States. The story begins:
  Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.
  Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.
  The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.
  How much monitoring is occurring? Here's what the article says:
  While many details about the program remain secret, officials familiar with it say the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time.
  Is this legal, you're wondering? The article offers this:
  Mr. Bush's executive order allowing some warrantless eavesdropping on those inside the United States - including American citizens, permanent legal residents, tourists and other foreigners - is based on classified legal opinions that assert that the president has broad powers to order such searches, derived in part from the September 2001 Congressional resolution authorizing him to wage war on Al Qaeda and other terrorist groups, according to the officials familiar with the N.S.A. operation.
  . . .
  The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.
  According to the story, some officials objected, and DOJ audited the program:
  Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.
  I hope we'll be hearing more about this in coming weeks, as this is big news. While the statutory privacy laws have an exception for this type of monitoring, see 18 U.S.C. 2511(f), and the constitutional limits on e-mail surveillance are uncertain even in traditional criminal cases, the constitutionality of warrantless interception of telephone calls in situations like this is really murky stuff. To get up to speed on some of the issues, check out Judge Sand's opinion in United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000). (.pdf)
Christopher M. (mail):
Orin,

You follow this sort of thing. What would you have said, yesterday, if someone had asked your opinion on the chances that this sort of thing was happening, and if so, whether it was authorized by law?
12.15.2005 11:07pm
Humble Law Student:
Eh, maybe I'm a security whore, but it doesn't bother me very much.

There seem to be two basic requirements that must be met for such monitoring. That the individual monitored has some connection to a terrorist group (albeit, it appears it only has to be a tenuous connection) and that the individual must be calling someone outside of our shores.

Works for me (assuming they abide by those requirements).
12.15.2005 11:27pm
Smithy (mail):
Eh, maybe I'm a security whore, but it doesn't bother me very much.

Me neither. I'd rather be safe than private, to keep it simple. I trust the NSA. I don't trust the ACLU. That's what is boils down to.
12.15.2005 11:30pm
jurisprude:

Eh, maybe I'm a security whore, but it doesn't bother me very much.

Me neither. I'd rather be safe than private, to keep it simple. I trust the NSA. I don't trust the ACLU. That's what is boils down to.


And so it begins. I see another Korematsu in our future.
12.15.2005 11:35pm
Smithy (mail):
Would you rather have Bob Mueller reading your mail or Osama bin Laden bombing your home, jurisprude?
12.15.2005 11:37pm
Bobbie:
Yup. Those are our choices. Good one Smithy.
12.15.2005 11:40pm
Humble Law Student:
Bobbie,

So maybe Smithy used a false dichotomy to make a rhetorical point. However, in having to err on one side vs., another, I'd rather err on staying alive.

Just a personal opinion though.
12.15.2005 11:44pm
Been There, Done That:
Yes. Trust the Government. Who needs these pesky rights? If you haven't done anything wrong, what do you have to hide?

I mean, sheesh, only DRUG DEALERS and TERRORISTS need to keep their conversations from the police, the right to face (intimidate?) their accusers in court, the right to sneaky lawyers who can raise all kinds of technicalities, the right to a jury trial (because juries are dumber than judges, the government's judges will put all the guilty people away right quick), the right to a speedy trial (hey the government needs time to decide what Jose Padilla did or did not do), the right to examine the evidence used against them (sources and methods!)....

WHO DETERMINES whether the person whose rights are being violated has "connections to a terrorist group?" The CIA station chief in Skopje, who drugged and tortured a random German citizen for months on end?

Why, if those darned LIBERALS have their way, some pointy-headed JUDGE or other supposedly neutral party... the whole warrant thing, ya know.

Humble Law Student, why are you studying law? who needs law if the government is trusted to make all the right decisions anyway?

This is the definition of lawlessness.
12.15.2005 11:44pm
Humble Law Student:
Juris-unprudent,

Yes, while were at it, why don't we just imprison all of the Japanese Americans. Oh wait, I'm fifty+ years to late. Umm, I mean the Arabs or something.

The slope isn't exactly made of ice...
12.15.2005 11:48pm
Humble Law Student:
Been There, Done That,

I study law because I don't want to trust my country to people like you.
12.15.2005 11:49pm
Mary Katherine Day-Petrano (mail):
I previously posted the following excerpt in the Comments to Dec. 7, Al-Arian thread on the Patriot Act and why my husband (an attorney ) and I have reason to believe we have been subject to a Patriot Act abuse for simply having brought forth two Americans With Disabilities Act cases in Federal Court, US Supreme Court Dockets No. 05-7287 and 05-7771, and Eleventh Circuit Court of Appeals, No. 05-14259-J, for which we thereafter arrested in admiralty a Vessel we have reason to believe was adjacent to our Vessel to conduct surveillance on us. Eleventh Circuit Appeal No. 05-15248.

Everytime my husband and I try to get discovery in any of our cases it gets cut off, in one case by a district judge even after the magistrate ordered disceovery to be turned over. In the Vessel case, to try to wrestle the arrest from us, an admitted (recognized by the district judge) perjuring witness was brought forth to defeat our claim.

After I posted the below excerpt, when my husband sent my computer (a voice-recognition Speech-To-Text disability assisitve device) in for repairs to the manufacturer it now appears my computer device may have been seized by Patriot Act investigators, as it has been hijacked with no explanation for more than a week and a half, when on previous repair it was returned due to my disabilities in 2 days. Has my disability device now been seized?

First a perjurer, and now my disability device?

If there has been an abuse of the Patriot Act against my husband and I for seeking to enforce ADA and First Amendment rights, and this abuse would include taking a disability device away from a disabled person to prevent her unpopular cases from going forward in the Supreme Court and Eleventh Circuit Court of Appeals, this should be an affront to every person who cares at all about civil rights and civil liberties. It would seem even a wheelchair or a seeing eye dog could be now be seized, and one has to wonder if the express conflict preemption provision of "other federal laws" under the ADA repeals in whole or part the immunity and non-disclosure provisions of the Patriot Act, since a retaliation against a disabled person is not a legimitate law enforcement objective and is defined by the ADDA as unlawful.

Just my two cents, but if my husband and I are on the domestic Patriot Act abuse lists, I wish someone would tell me why a person who passed a bar examination with necessary reasonable accommodations poses such a perceived "threat" to anyone just for trying to get accommodated.


The previous excerpt:

12. Before the ADA litigation, my life and that of my friend (who got his Florida bar admission and became my husband) was relatively uneventful; evidently, however, my ADA civil rights litigation was unpopular, afterwards we became subjected to:

(a.)numerous entrapment attempts on both my husband and I, one of which involved a convicted federal bank fraud who appeared to be an informant;

(b.)appx. 6 attempts by people to run us off the road while driving places, one of which caused an accident resulting in two Secret Service agents showing up in the hospital emergency room a family member was taken to by ambulance from the accident scene;

(c.)much electronic interference with our cell phones, computers, and television, and very shortly after my ADA Federal suit was filed, an apparent 'sneak and peek' attempted boarding of our vessel, aborted upon discovery I was on the vessel with a camera, followed two nights later by what appears to have been a DEA task force response to a fictitious scenario my husband and I spoke in the privacy of our vessel home to determine if we were being electrnically surveilled without our permission (local police filed a police report about the 3 am attempted boarding incident, inexplicably refused to pursue the fleeing suspects, and minutes later four law enforcement officers showed up in the same cab in which the suspects fled asking to 'be paid for this');

(d.) during Florida's Hurricane Jeanne, the vessel adjacent to our vessel appeared to be deliberately reckelessly tied to ensure it would break loose at the height of the Hurricane and crush our vessel with us on it like a watermelon (4-5 mooring lines instead of 12 required for Hurricanes, placed so low on tie pole as to ensure breakage at height of Hurricane storm surge), and my husband had to leap onto the vessel in peril in 75+ mph Hurricane force winds to secure it to save my life; the following morning, someone placed the vessel's 220 voltage electrical line under our dock to intimidate us;

(e.) I complained to the local police (defendants in the ADA federal suit) who investigated the previous 3 am vessel boarding incident to investigate who would have tied the vessel adjacent to us like that and put the 220 voltage line under our dock, and my husband and I were told to 'go to the Coast Guard;'

(f) For the next 3 months, no one came back to that vessel adjacent to us, so my husband and I filed in admiralty and arrested the offending vessel we had successfully saved from marine peril at the height of the Hurricane(breaking loose); the only witness the Defendants brought forth was a former Coast Guard E-9 petty officer, who committed perjury in open court before a federal magistrate (the district judge has recognized the perjury in the record of the case on PACER);

(g) The vessel case has dragged on for more than a year and we are still not beyond resolution of the "expedited" post-arrest hearing, since the perjurer's testimony was stricken; at that hearing striking the testimony, the courtrooom was filled with people who looked like federal governmental people, and the Defendants were authorized by someone to park in the spots reserved for the US Marshal; it is questionable who owns the vessel given two $1 transfers on the title; and we ordered the transcript of the hearing two months ago and the Court reporter still has not filed the transcript;

(h) My husband and I made FOIA requests on federal agencies, and after this in every federal agency in which we had something pending, all were promptly denied: DOJ discrimination complaints on Title II State public entities were inexplicably dumped based on Title III of the ADA, my Social Security disability appeal is not being docketed and I am not being given any hearing (filed more than a year ago), and a medical doctor for the US Attorneys' Office in Tampa wrote in a medical report used against my husband that he had reviewed my videotaped deposition, which was never taken because I filed a motion to quash, which report the Tampa US Attorneys Office used to coerce my husband to drop his student loan proceeding;

(i) We then brought suit against the perjurer in the vessel case for running up vessel fees during the arrest, who admitted he committed perjury to protect the vessel and the owner, knew it was wrong, and also admitted knowledge (though did not personally participate in) the "commando raid" (his words) on our vessel home, the one at 3 am, the one where the local police told us to go to the Coast Guard;

(j) A magistrate ordered a discovery deadline in my ADA federal suit to investigate the 3 am attempted vessel boarding incident, which was abruptly cut off without explanation by the district judge to prevent the discovery, sending the case on appeal. What was there we would have found out in discovery?;

(k) my husband and I are repeatedly being subject to interference by one or more defendants, or their associates or employees, in our cases, almost every time we have a critical deadline. On the evening my United States Supreme Court Petition was due in my ADA federal suit, Docket No. 05-7771, two employees of a defendant put my husband and I right in the middle of emergency police operations, police cars screaming up to us at 50 mph out of nowhere, stopping just feet short of where we were about to go board our vessel, employing bright search lights, officer jumped out in a bullet proof vest with his hands on guns, and eventually ran after other people nearby in a chase - intentional intimidation? We need more discovery, but the defendants are fully aware part of my disability is posttraumatic stress disorder from having watched my mother die, and I took cover because I thought my husband and I were going to die in a spray of bullets for having the audacity to file my Petition in the Supreme Court;

13. A few days ago, msn reported that there was a botched "terror" investigation in Tampa, evidence was compromised, and an agent whistleblower said the Bush administration had tried to make a domestic terrorist case out of no evidence of any terrorism, and no arrests have ever been made in the case. (The whistle blower was Mr. German).

The reason I am writing about this in response to the Al-Arian Patriot Act discussion here is I think it is important when people discuss the Bush administration and the Patriot Act that is is conceivable two American citizens who only sought reasonable accommodations to pursue one's bar admission and restore a driver's license unjustifiably suspended — and the fact my husband represented his brother with brain cancer (gloioblastoma) as his attorney, together with the brother penning a ctitique of the Bush administration on Arianna.com called "Bin Laden Is Moses Reborn (which has no connection with myself or my husband other than purely by association) — were subject to an abuse of the Patriot Act by the federal government.

Of course, my husband and I are fighting for our right of discovery in these matters. We want to know if WE are the subject of the Tampa botched "terror" investigation solely because we brought forth an unpopular ADA disability civil rights case, and criticized the Bush administration's policies to pay for tax cuts for the rich by starving out the disabled, denying the disabled medical care, cutting the disabled from Social Security disability, refusal to enforce the ADA in employment and licensing opportunities, and because I took my case to the Supreme Court. And also because my husband's brother who is sick with cancer penned a critique of the Bush administration's anti-terrorism practices under a catchy titled blog thread that has more than 5000 entries by members of the public.

Surely, if my husband and I ARE the subject of an abuse of the Patriot Act, what everyone should know is this can happen to anyone, any American citizen, for simply engaging in First Amendment protected activities.

In sum, it would appear there may have been a substantial abuse of the Patriot Act as well as infliction of punishment on my husband and I by a deliberate attempt to ensure non-survival of two American citizens just for filing unpopular civil rights cases in America's Courts, and criticism of Bush administration policies, in order to silence and defeat civilian opposition to the policies of the Bush administration.

So, having written this, while before I believed in the Patriot Act, now I am having a hard time with the notion Congress should extend and expand the government's powers under the Patriot Act, as well as a hard time with the notion a person can have important legal rights denied based on "guilt by association" or holding unpopular views critical of the government.

The danger, of which our Founding Fathers were well aware, is abuse of ordinary citizens by an all too powerful government without Constitutional protections, and while all these things have happened to my husband and I as described above with no remedy, one thing is certain — the US Attorney has not done one thing to punish the perjurer. He is still walking free.
12.15.2005 11:57pm
Been There, Done That:
People like me? What about all those unnamed Bush government officials who felt uncomfortable with the program because they recognized it is unconstitutional?

And you don't know me! How do you know I won't get a job at NSA and spy on YOU tomorrow? Do you know the people at NSA? Do you trust them?

In a nation of laws, such questions are irrelevant. We agree on certain rules, certain safeguards, like -- neutral magistrates that review warrants.

We trust that these offices will be occupied by good people, just like we trust the NSA folks. But we don't trust anyone absolutely, blindly, which is why we build these safeguards into the system.

If you really are studying law, I suggest you repeat some of your coursework. No accredited law school would teach you that "whatever the government decides is OK" is a legal principle. Rather, it is the antithesis of law.

Classified legal opinions giving the government the authority to violate well-established constitutional rights? On the apparent basis of an undeclared and endless "war?" George Orwell, white courtesy phone....
12.16.2005 12:01am
Humble Law Student:
Been There, Done That

Please stop. You only make my case for me. I'll ignore your rampant ad hominems and address your "points."

Our system of law is designed for a purpose. The broad purpose is to ensure the safety and security of the citzenry from threats internal (other citizens, the government) and external, and of course is becomes more task specific in certain areas of law.

However, specific laws (prohibition of certain agencies from eavesdropping on Americans) merely serve as means to an end. Our system of law is and should be designed to allow our society to pursue the goals it sets. These goals are generally based on values, rather a value hierarchy. This system of values may also stress at different points in our common history certain values over others.

In this age of terrorism, I am completely in favor of a rather mild emphasis on the value of security over the value of "being free from government intrusion." You can make a normative argument arguing that my value emphasis is wrong, but that isn't the argument you are making.

You are conflating process and purpose. Sometimes, the process is tinkered with to better achieve the purpose. However, please stop making the mistake of confusing process with purpose and making any change in process a negation of our purpose. Feel free to make normative arguments all day long, I will engage you on those, but stop with this misleading rhetoric.
12.16.2005 12:13am
Been There, Done That:
In a free country, the process IS the purpose.

Don't we do a lot of talking about "freedom" and "liberty" and "democracy?" Aren't we fighting to bring those concepts to places like Iraq? Remember the talk about "the rule of law" a few years ago?

What does that mean? It means that we enjoy certain rights, that government can't just do whatever the hell it wants so long as it is asserting a noble purpose (like "security.") What dictator, what tyrant, has ever failed to assert the common good as a pretext for absolute rule?

Take away our Bill of Rights, our notions of a limited government of enumerated powers, of checks and balances, of due process, and what's left? A SAFER country? Doubtful. A FREE country? Not at all.

There is nothing misleading in my rhetoric. We have here the government conducting warrantless surveillance on citizens within the USA. That's not at all a close question.

You can argue the Fourth Amendment is a bad idea. You can argue that ANY constitutional right is a bad idea, since they all frustrate law enforcement and can be said to enable criminal/anti-social/destructive activity in some sense.

But "I trust the government to keep me safe so I don't care what it does" is not a legal principle, and this NSA program is not remotely legal under our constitution.

Some people always imagine themselves heroes, living in dangerous times requiring extreme feats of derring-do and a lot of tough talkin' rule bendin'. These people tend to work for government, or support authoritarian governmental actors. It's easy to see why. It justifies their power, enhances their sense of self-righteousness.

On any day of our country's history, someone could have made themselves believe that our rights are just "process" necessarily sacrificed against the Immediate Threat to The Republic. This time is no different. It's just egoism rising to the level of criminality.
12.16.2005 12:31am
Jim Rhoads (mail):
Assuming this goes over the constitutional line, what is the remedy? Apparently, not criminal prosecution under 28 USC 2511.

Perhaps if prosecution results from interceptions under this executive order, such prosecutions will fail.

But if interceptions prevent one terrorist act, by intervention of law enforcement or military authorities, who will complain? Maybe some of the commenters on this thread. Certainly not the intended victims.

And if someone complains, the effect will probably be merely political.

That was a risk the CIC was prepared to take.

Were I in his position, I probably would have taken that risk as well.
12.16.2005 12:34am
Nobody Special:
Take away our Bill of Rights, our notions of a limited government of enumerated powers, of checks and balances, of due process, and what's left?

The United Kingdom.

That bastion of repression.
12.16.2005 12:43am
Orangutan (mail):
In this age of terrorism, I am completely in favor of a rather mild emphasis on the value of security over the value of "being free from government intrusion."

Terrorism is bad. The attacks were bad. But let's not forget it was less than 3,000 people. That's about 0.01% of the population. Am I the only one who wants to shift the mild emphasis to things like heart disease, cancer, education, tooth decay, whatever....

We have a lot of people screaming "terrorism" or "9/11" to justify laziness and apathy in all these other areas that will substantially affect most of our lives astronomically more than terrorism. If terrorism was really a threat they would be monitoring the ports and the borders. They're not. Know why? Because it's a smoke screen. Monitoring shipping and the borders is HARD. Lessing to people's phone calls is EASY.

There will always be terrorism, just like there will always be car crashes. Let's move on and stop using it to chip away our rights.
12.16.2005 12:44am
Orangutan (mail):
lessing = listening

It's late. Sorry.
12.16.2005 12:47am
Been There, Done That:
the effect will be merely political

Just watch the political effect from this.

Really, Rhoads, why can't we use your logic to dispense with the bill of rights in its entirety? THINK of all the crime that could be prevented! Who would complain? Just a few lawyer types, but not the intended victims.

Are Americans willing to surrender their rights wholesale to prevent crime/terrorism? Do Americans trust the government THAT much? If Bush thought so, he really has an inflated sense of himself.

Rhoades, you think of Bush mainly as the "CIC," as he orders surveillance on the domestic population. Most people, however, see Bush first not as a military leader, but as a civilian President who has taken an oath to defend the constitution. Our "war on terror" has outlasted the time between Pearl Harbor and V-J Day, and the tired militaristic rhetoric("CIC") will not fool a public that viscerally understands, at some level, that this doesn't smell right.
12.16.2005 12:48am
washerdreyer (mail) (www):
Am I reading correctly that the majority of commenters in this thread believe that the burden on the government for monitoring your phone calls should be a) we have a bunch and b) the person on one end of the phone call isn't currently in the United States?

Argument by assertion: that's a pretty crappy standard.
12.16.2005 1:05am
washerdreyer (mail) (www):
Crap. The word "bunch" should be "hunch."
12.16.2005 1:07am
Humble Law Student:
Been There,

Process is not the purpose. Our process is generally seen and believed to be good at delivering the "results" we want. That is why we use it.

It is this false delusion about process that causes so many problems. Democracy is a process. However, only certain types of democracies are able to deliver the results desired. Churchill talked about democracy being the worst form of government aside from all the rest. His point rings true.

We have our system in place because it is a "system." A system to achieve "something." Without this "something", the system itself is meaningless. Goals, values, beliefs are what give life and meaning to the system. We have just settled on a particular system that we believe best gives us what we want.

So, please stop this false conflation of yours. If process was all that mattered, then you surely couldn't object to a hypothetical in which the entire population of the US consisted of hardcore Islamic fundamentalists. If it is about the "system", things couldn't be too bad. Because afterall, the system (process) is what it is all about. Right?

Wrong!
12.16.2005 1:09am
Been There, Done That:
washerdreyer

It's worse than that. Since this is a warrantless process, there is no reviewing authority that keeps the executive branch honest. We have to take them at their word that they had a hunch and that the person at the other end wasn't in the United States.

All we can really know is that they wanted their actions to be unreviewed and unreviewable.
12.16.2005 1:09am
Christopher M. (mail):
I'll just renew my question, because it's meant very honestly -- I really don't know the answer, and how I take this story depends to some extent on the feeling I get for the answer to this question.

Orin, you follow this sort of thing. What would you have said, yesterday, if someone had asked your opinion on the chances that this sort of thing was happening, and if so, whether it was authorized by law?
12.16.2005 1:15am
Been There, Done That:
Law Student

Outcome determinative law is not law.

The purpose of our law is not to yield particular results. It is to be fair, to give due process, to respect certain righs and institutions that we recognize as yielding just results, whatever those are. You sound like the Queen in Alice in Wonderland, "verdict first! trial later!"

Our constitutional rights are not mere gimmicks to be discarded when someone doesn't find them convenient to some personally desired vision of what should be. Law is nothing but process. Due process.

Would I object to the entire population of the US becoming hardcore islamic fundamentalists? Assuming everyone still honored the constitution, I'd prefer them to a population entirely like you. Despite their islamic fervor, I would still not have the NSA spy on me without a warrant. And while I find islamic fundamentalism repugnant, I don't see how the government can prevent moslems from proseltyzing and freely adopting their beliefs. Or would you suspend the First Amendment because, hey, we're at war with some islamic people.
12.16.2005 1:22am
OrinKerr:
Christopher M.,

I'm quite surprised about this, as this seems like a considerable departure from the NSA's traditional role. On the legal question, though, I don't have very reliable instincts: my area of expertise is surveillance for criminal investigations, not intelligence investigations. My instinctive reaction is that this seems odd in light of FISA, and questionable in light of the bin Laden case I link to above, but I'm not enough of an expert on this to have more than a very vague sense.
12.16.2005 1:27am
Mary Katherine Day-Petrano (mail):
What makes anyone think the intended victim doesn't complain? Most intended victims just don't know their way around the federal courts. Others do. Victims DO complain. I hated criminal law, and I never got involved in these kinds of issues before the grounds my husband and I now have to believe we have been victimized by this warrantless process and unreviewable authority. We are quite certain the most inimate details of our marriage have been captured electronically and by video in our bedroom. How is this kind of instrusion not offensive? If this is the kind of Country some people want in the name of "security," why not just turn back the clock to Stalinist Russia and take a hike to Siberia? I don't think this is what the last 200 years of our Counrty stands for. All the people who have fought and died for our freedom. Or maybe they don't matter anymore, because what did our Founding father's know anyway? My husband and I are about as American as anyone can be. I grew up trusting my government. I struggled as a single mother just to apply the work ethic and try to build a better life for my family, single handed. So how would I rate on a list of suspects? Just because I do not happen to believe it is morally right to cut programs to the poor and starve and kill off people by eliminating food subsidies, housing subsidies, and medical care? If having an entire army of investigators watch every intimite detail is the definition of "security," and having a social conscience for the poor is a "security threat," then the entire American population better be locked up.
12.16.2005 1:32am
z maffeo (mail):
I am quite comfortable with the NSA listening to whatever conversation of mine or anyone else's they wish. Its whether or not they can prosecute me for what they here thats the salient question. With the dubious legality of their intercepts they are unikely to prosecute one for what they hear. They may use information they recieve to stop a potential attack. So I view it as very little loss of privacy, the technology involved is trivial and having worked in the telcom industry I know its not unusual for bored 20 somethings to listen to your private calls, who cares if its a bored 40 year old NSA spook. If they can't use the information to prosecute you "fruit of a forbidden tree" and all that.
12.16.2005 1:35am
Orangutan (mail):
We have our system in place because it is a "system." A system to achieve "something." Without this "something", the system itself is meaningless. Goals, values, beliefs are what give life and meaning to the system.

In my opinion, Government should be the opposite of a purposeful enterprise. It should allow all purposes, all goals, beliefs, in every direction- as long as those beliefs don't commandeer the others. If men were angels, there'd be no need for government. Good old Jimmy Madison said that, right? Government should be a check on our ambitions, and that's it.

Another smart dude named Ben Franklin liked to say that those who would give up a little liberty for a little security will wind up with neither and rightly so.

I agree with those hombres. But I think it's great I don't have to.
12.16.2005 1:47am
Tony (mail):
This is news? I've assumed for years that international communications were monitored, and that pretty much all Internet communication was being crunched by big computers somewhere. Like, perhaps, in Austin.

Hasn't "project Echalon" been standard grist for the less loony parts of the conspiracy theory mill for some time?
12.16.2005 1:57am
boonelsj (mail):
I'd love to see the OLC memos they used to justify this. Anyone want to hazard a guess at how they argued this eavesdropping was within constitutional bounds?
12.16.2005 1:59am
Christopher M. (mail):
Orin: Thanks for your reaction. I would be very interested to see reactions here from anyone who has any expertise or experience in a related area of law. This seems surprising at first, and I am very, very predisposed to dislike the Bush administration's actions; but I am open to being convinced that things that strike me as absurdly totalitarian prima facie are actually just the normal order of business for successful democracies. I never feel like I have a good sense of what it takes to survive in the world, as a democracy. More on that last sentence in a later comment or post, I hope.
12.16.2005 2:14am
Jeroen Wenting (mail):
So we have a secret directive to a secretive agency to do something in secret.

How in hell did the NYT make up this story? Where's the evidence, the proof that it ever happened?

Seems to me to be just another conspiracy theory.

Not saying it's not happening, but I've heard it all before.
12.16.2005 2:14am
washerdreyer (mail) (www):
Jeron, I'm not quite sure what kind of standard you want for verifying the truth of the story, but it does say this, "The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny." Also this, "reservations about aspects of the program have also been expressed by Senator John D. Rockefeller IV."

Presumably if the White House didn't make such a request, or Senator Rockefeller hasn't expressed such reservation, we'd hear about it quite quickly.
12.16.2005 2:56am
ADB:
"You sound like the Queen in Alice in Wonderland, "verdict first! trial later!"

Been There sounds like a law professor spanking a 1L gunner in Con Law class. I just want to say that's pretty entertaining.
12.16.2005 3:34am
George Gregg (mail):
I couldn't agree more with Been There, Done That's comments.

Basically, the counterargument I'm hearing is that some people think that the end justifies the means in law. Is this seriously a principle some folks are getting behind? It seems to fly in the face of everything the Bill of Rights is all about. I guess due process and human liberty is held in rather cheap esteem by some folks. Which is pretty sad, given all the blood, sweat and tears that have been shed to secure those for our society.

Also, I just thought this needed to be said again:

"Another smart dude named Ben Franklin liked to say that those who would give up a little liberty for a little security will wind up with neither and rightly so."

Finally, "Humble" Law Student, I do not think that word means what you think it means.
12.16.2005 3:39am
LINO_watcher (mail) (www):
Anyone interested in this issue should research the NSA's Echelon program mentioned by the commenter "Tony" above.

Echelon allegedly allows the NSA to monitor just about any phone or e-mail conversation that occurs, conducted by US citizens and non-citizens alike. They allegedly get around the prohibitions on spying on US citizens by using personnel from the intelligence agencies of other countries. For example, they might get MI5 or MI6 personnel to monitor our citizens, in exchange NSA or US military personnel would spy on UK citizens. This was all allegedly going on pre-9/11.

If the suspicions about Echelon are true, I don't know why they'd bother to raise the profile of this now. Maybe they want try to maintstream and legitimize it so they can actually use it as evidence in US courts.

In any case if the suspicions about Echelon are true it just illustrates that government agencies with little oversight and transparency will do whatever the hell they want, and will use whatever cheap excuses they can to violate citizens' rights. And how would anyone know for sure? Maybe someone might write a book 20 years from now, that is if FOIA is still around by then.

And of course this is all of dubious value - didn't prevent 9/11, hasn't caught Osama, etc.
12.16.2005 5:18am
jgshapiro (mail):
Here's a doozy of a statement in the Times piece:
President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.

Seeking Congressional approval was also viewed as politically risky because the proposal would be certain to face intense opposition on civil liberties grounds. The administration also feared that by publicly disclosing the existence of the operation, its usefulness in tracking terrorists would end, officials said.
The trouble with that approach is that there is no end to that logic. Any proposed surveillance method will encounter at least some opposition. Approval for any surveillance method might tip off someone that it could be used against them.

If this is a true concern, why bother renewing the Patriot Act at all? Wouldn't the same concerns apply to the library records provision, for example? (Now the terrorists will get their free Internet elsewhere and we won't be able to track them down in the local library.) Instead, the adminitration could get a legal opinion stating that the ground for using any proposed surveillance method (e.g., searching library records) lies in the President's inherent power as CIC and/or the 2001 Congressional Authorization to Use Force.

I'm starting to wonder if the Bush OLC folks think there are any limits on the powers of a president during wartime. Apparently none of them have ever read the steel seizure case (not to mention Hamdi).
12.16.2005 5:27am
jgshapiro (mail):
Another interesting quote from the Times:
The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.
So, why did the Times decide to publish now? What changed in the past year? Presumably, it did not take a whole year for the Times to hear out all of the senior officials or to do additional investigating.

Inquiring minds want to know!
12.16.2005 5:36am
Smithy (mail):
It's hard for me to see how this is a big deal. Is there any evidence that this was used to "spy on" regular citizens as opposed to would-be terrorists?
12.16.2005 5:46am
Medis:
I'm not sure 18 USC 2511(2)(f) does contain an exception for this surveillance. It says:

"Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted."

"Electronic surveillance" as defined in section 101 of FISA includes "the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States." 50 USC 1801(f)(2). So, it looks like the privacy laws plus FISA define the "exclusive means" by which this surveillance could be conducted. And it looks like the Administration did not follow the FISA procedures when conducting this surveillance.

Indeed, as I understand it, that would ordinarily be a crime under 50 USC 1809(a)(1), because such surveillance would not be "authorized by statute". I take it that is where the 2001 AUMF comes in. I'm not sure that the 2001 AUMF really provides authorization by statute for electronic surveillance outside of the FISA procedures, so I would also be worried about the legality of my acts if that was all the Administration had on its side.
12.16.2005 6:25am
Medis:
Smithy,

How would anyone know? If they haven't obtained FISA warrants, then how would we know if there was probable cause that the targets were agents of Al Qaeda or some other foreign terrorist organization?
12.16.2005 6:32am
andy (mail) (www):
Why is this such an "important story?" It reads as if the Times is apologetic for breaking a story regarding illegal loopholes enabled by the Patriot Act, among other post 9/11 legistlation...

How quickly we forget only a couple years ago when Ashcroft told the Senate: "this is how its gonna be..."
12.16.2005 8:37am
subpatre (mail):
What next, the standing army is prohibited by our Constitution? Gak! a Danger to our republic! Military coup imminent!

You've just got to grin --and bear it-- when a new crop of the naive (young, idealistic lawyers) get all atwitter over some hint of reality. Not unlike the famous "Gentlemen don't read each other's mail".

It was 1967 when this information was published in The Codebreakers; and then in The Puzzle Palace published in 1982. This isn't news.

That the NYT will rehash it every so often during slow cycles isn't surprising. It is surprising a senior professor, with expertise in Internet surveillance law, calls it breaking a "tremendously important story".

On a previous slow news cycle (c.1980s, WaPo) reporters asked the owner of a trans-Atlantic phone service if he was concerned NSA might be listening. He replied he'd be more concerned if they weren't.
12.16.2005 8:37am
Medis:
subpatre,

I'm not sure I understand your claim. Are you saying that the NSA was conducting electronic surveillance of persons in the US without FISA warrants before the President's 2002 Executive Order?
12.16.2005 8:47am
go vols (mail):
"I'm starting to wonder if the Bush OLC folks think there are any limits on the powers of a president during wartime. Apparently none of them have ever read the steel seizure case (not to mention Hamdi)."

Indeed, Funny how "conservatives" and "originalists" seem to disappear whenever Nixon or Bush want to declare, essentially, that checks and balances or the Bill of Rights do not constrain a president in the execution of foreign affairs. Anyone who's read an ounce of history knows how dangerous such a principle is. The Founders--who had read a lot of it--knew this pretty well.

Smithy--your statement that the ACLU is more dangerous than the NSA is simply insane. You might reasonably dislike the ACLU or its values, but only one of these two entities has the force of the state behind it. To equate them as equally dangerous is ludicrous.

Humble Law Student--I'll combine an honest normative question with an unfair ad hominem that calls you a coward. Would you like to suggest the breaking point where your value balancing shifts back in favor of liberty in this "age of terrorism"? Or is the .00001% chance that you will be a victim of a terrorist act that the government may not even be able to prevent have you good and ready to embrace the ends justify the means" with no limit in sight?
12.16.2005 8:56am
subpatre (mail):
"Are you saying that the NSA was conducting electronic surveillance of persons in the US without FISA warrants before the President's 2002 Executive Order?"

Of course. Not me saying it; me citing the experts in the field. They've done it before they were NSA, have always done it, and always will.

See "standing army". You can't address one without the addressing the other: They are one and the same issue.
12.16.2005 9:32am
Blast from the Past (mail):
Oh my God! The Bush Administration is spying on us all, now?! Do they have any respect at all for American principles?

I mean, it's not like the NSA and DoD have been monitoring and recording every single telephone conversation between America and every other country in the Western hemisphere since the early 1990's out of Fort Huachuca! Or like they routinely share contents of any conversation regarding drugs with the DEA. Wait...

Seriously, I object to this, but I cease to be amazed that lefties only get on board against real violations of civil liberties when there's a nasty, old Republican in the White House. Disagree? Where were you on the question of the Federal government recording Americans' phone calls without probable cause in the early 90's, when this really got moving? Oh, that's right, you didn't care, because it was a right-wing wacko issue and you could trust Preisdent Clinton, anyways.

Posers.
12.16.2005 9:40am
duran:

Assuming this goes over the constitutional line, what is the remedy? Apparently, not criminal prosecution under 28 USC 2511.

Perhaps if prosecution results from interceptions under this executive order, such prosecutions will fail.


We already have a way around this - we can just hold the citizen as an enemy combatant for as long as we like. Problem solved!
12.16.2005 9:51am
Neal R. (mail):
Humble Law Student,

Here's a free tip. If you get a Fourth Amendment question on the Bar Exam, the correct answer will not be: "Call me a security whore, but the NSA said the defendant had connections to a terrorist group, and he was calling someone outside the country. Therefore, the warrantless search doesn't bother me very much."

They'll go over this stuff in BarBri. So don't worry if you haven't had a chance to take CrimPro.
12.16.2005 9:52am
Been There, Done That:
Is there any evidence that this was used to "spy on" regular citizens as opposed to would-be terrorists?

Is there any evidence it was used to spy on would-be terrorists as opposed to regular citizens?

Who decides whether someone is a "would-be terrorist?"

Is a "would-be terrorist" anyone the government says it is? Is a "would-be terrorist" anyone the government is spying on?

Under FISA (and the Fourth Amendment), a judge gets to decide who is, or is not, a "would-be terrorist." This decisionmaking is absent from the program. That's the problem.
12.16.2005 9:56am
Cold Warrior:
jgshapiro said:


The trouble with that approach is that there is no end to that logic. Any proposed surveillance method will encounter at least some opposition. Approval for any surveillance method might tip off someone that it could be used against them.


Valid point.

However, everyone here seems to be missing the President's justification:

-- the 9/11 attacks required sophisticated training and planning, the participation of a private militia operating with (at a minimum) the protection of a foreign power or powers, or perhaps even the with the approval and guidance of a foreign power (the Taliban).

-- with that in mind, it is not a stretch to consider the 9/11 attacks an act of war on the United States. Not a metaphorical war, mind you. A real war, in which soldiers trained on foreign soil with the approval of the host government entered the United States to engage in fairly standard war behavior. After all, they bombed(using a fuel laden jet) the Pentagon.

-- the Constitution commits the Commander in Chief power solely to the President. Part of this power is the power to defend the United States against attack. This power may not be abrogated by legislation. The power to defend the United States from an imminent or ongoing attack (the hot-button words are italicized) implies that the President may use the normal tactics of warfare to repel that attack. No one can deny that surveillance of the enemy is one of these powers.

For a very thorough explanation of this theory, see the work of Robert Turner and John Norton Moore at the University of Virginia's National Security Law Center.

So, back to the hot-button words. I don't believe anyone would argue that FDR needed to get a search warrant before he started intercepting communications between Japanese bombers over US airspace. I don't even think anyone would argue that FDR needed a search warrant to intercept communications between Japanese diplomatic officials in the United States, or between a Japanese national who worked as a cartographer on Oahu on a contract with the Japanese government. But, you say, that's because Pearl Harbor started a real war, and the post-9/11 war of terror wasn't, well, really real. In other words, either: (1) we weren't under attack; or (2) further attack was not imminent.

These arguments must be addressed on the merits. Of course, the "merits" are difficult to determine. And I would agree that the Bush Administration's typical defense -- "believe us, we reviewed the intelligence and we knew the enemy was planning more attacks" -- is properly subject to skepticism in light of the Iraq intelligence debacle.

But it is not valid to say that the President's Commander in Chief powers argument is, on its face, ridiculous.

It all depends on what you call an attack ...
12.16.2005 10:12am
Gary McGath (www):
Looks like we're seeing the usual responses from the statists. If the government is spying on (torturing, holding without trial) someone, that person is by definition a terrorist, so there's no problem. Indeed, by that definition, it's impossible for the government to abuse its power.
12.16.2005 10:13am
Cold Warrior:
Neal R. said:

Here's a free tip. If you get a Fourth Amendment question on the Bar Exam, the correct answer will not be: "Call me a security whore, but the NSA said the defendant had connections to a terrorist group, and he was calling someone outside the country. Therefore, the warrantless search doesn't bother me very much."

Neal, sarcasm is an effective tool only when the writer knows what he's talking about.

Nobody's said that information gleaned from a Defense Intelligence domestic surveillance was used, or ever would be used, in a criminal court.

Of course, that's because it wouldn't. To try to use it in a criminal case would be to disclose the existence of the program, which is exactly what the Bush Administration wanted to avoid.

And if they did try to use it in a criminal case, it could indeed be subject to suppression under the Fourth Amendment.

Too bad your Bar Exam didn't cover national security law issues ....
12.16.2005 10:17am
Been There, Done That:
I see.

So now, any citizen the government wishes to spy on within the United States is no different than an enemy airplane en route to a bombing mission.

Where do you people get this stuff? Are you for real?

Don't you see the HUGE illogical leap there? How do you get to a place where citizens using their telephone are legally the same as enemy bombers? Does the government also get to shoot at people using the telephone, because, you know, they might be dropping bombs?
12.16.2005 10:18am
Bruce Cleaver (mail):
I wonder if the NSA could get around some of the domestic applicability by noting that emails may be bounced from server to server, many times outside the country (and thereby falling within the purview of the NSA). Note that I do not approve of this Phariseean end-around, only noting that it may be possible.
12.16.2005 10:18am
Sua Sponte:
The radio and TV spots that I heard about this did not pick up on the fact that these were international emails and calls, according to the text quoted above. I seem to recall from police practices class that one of the exceptions to the search warrant requirement is the "functional equivalent of a border." Any chance that's the legal justification that they're using?
12.16.2005 10:21am
Medis:
subpatre,

But specifically without FISA warrants?

Just to clarify my question, since FISA was passed in 1978, the NSA been legally required to get a warrant from the FISC before it can conduct electronic surveillance inside the United States. The FISC has approved hundreds of FISA applications each year.

So, it would not be news that the NSA has conducted electronic surveillance inside the United States. What might be news, however, is that the NSA is doing so without first getting a FISA warrant.

Incidentally, James Bamford (the author of The Puzzle Palace) wrote an article in 1999 called "Loud and Clear". In this article he detailed the developments leading to the passage of FISA in 1978 and the ways in which it restricted the NSA. He also stated, "Based on everything I know about the agency, and countless conversations with current and former NSA personnel, I am certain that the NSA is not overstepping its mandate. But that doesn't mean it won't."

So, I'm not sure it is true that the experts you cite thought the NSA was violating FISA as of 1999. But they may have correctly predicted what began happening in 2002.
12.16.2005 10:21am
snead16 (mail):
There's no principled difference, is there, between the NSA's domestic spying on "the people" sans warrant and the NSA beating-up people on a street corner near you in hopes of getting information out of them about a possible terrorist something-or-other -- both acts undertaken pursuant to a Presidential exec order under the 2001 AUMF, of course?

Is that because, as someone suggested, as long as the information is not used in a criminal trial against the person from whom it was obtained, why should anyone really care?

Wow. Some of the folks on the ends-justifies-means side of this debate haven't dealt with enough federal agents to appreciate, IMHO, how dangerous the "I'll trust the feds" theory is.
12.16.2005 10:23am
Been There, Done That:
Cold Warrior

So, the government can violate people's constitutional rights all it wants, so long as it doesn't also prosecute them.

God Bless America. This is exactly what freedom, liberty, etc. is all about.

What happens in the inevitable 1983/declaratory judgment act case?

And who is to say there won't be a criminal prosecution? Not one as such, of course. Just call them "combatants" (or "Jap Bombers") and send them to Guantanamo for tribunal!

Or maybe, since warrantless searches are now OK, the exclusionary rule is the next logical thing to go?
12.16.2005 10:25am
Cold Warrior:
Been There, Done That said:

So now, any citizen the government wishes to spy on within the United States is no different than an enemy airplane en route to a bombing mission.

Again, your argument is with the President's characterization of the 9/11 attacks, not with the legal (or even logical) argument that the President's Commander in Chief powers allow him to take military-type defensive actions to repel an attack.

Ask yourself a different question: assume that the US Government found out -- immediately after one of the 9/11 planes took to the air -- that an attack on the World Trade Center was the plan.

Surely you don't say the Government needs a search warrant to intercept a cell phone call between Mohammed Atta and one of his bosses on the ground in Florida? Between that Florida-based Saudi national terrorism planner and another terrorism planner (a U.S. citizen) in California? Between the U.S.-citizen planner in California and another U.S. citizen in Nevada?

It all depends on what you call an armed attack.

I don't disagree with you on your core point: the Bush Administration has adopted an extraordinarily broad definition of "war," and then found that the President's wartime powers provide legal justification for some quite extraordinary actions. But everyone seems too ready to make the indefensible arugment that even if a foreign force is in the midst of a bombing campaign, communications cannot be intercepted without a warrant (FISA or ordinary). And that argument is silly.
12.16.2005 10:31am
Humble Law Student:
Been There, Done That, et. al.

Okay, its hard to believe people so smart can be so blind, but let me s-p-e-l-l it out for you all.

WHY? Do you think we have our system of liberal democracy?

WHY? Do you think we have a system of law?

The answer is NOT because we want a system of law for its own sake.

The reason is because we believe it is the best system for ensuring the rights and security of the citzenry.

My point is discussing the tension between the process and its goals and how that tension is and should be dealt with (tension between the two is quite natural and inherent)

You are all purposefully misconstruing my words to meet with your hysterical stereotypes of individuals like myself.

I've never said just throw out the 4th or any other amendment.

All of your arguments are baseless because implicit in them is this assertion that the process as it stands is some holy creation that cannot be touched.

Well, either it can be meddled with or it cannot. If it cannot, then much of being an attorney or law prof is irrelevant if it never changes.

However, if it does and can change (constitutional amendments, interpretations, any of these ring a bell) then we should be having discussions of how those tensions should be resolved. What are our end goals? Process isn't is a goal, but NOT the only goal.

That is my argument - and perfectly rationale.

But go ahead, continue attacking me personally. I kinda like it.
12.16.2005 10:32am
Humble Law Student:
EDIT: Process is a goal
12.16.2005 10:33am
Medis:
Cold Warrior,

The Constitution also says in Article 1, Section 8, that Congress shall have the power "To make rules for the government and regulation of the land and naval forces." So while I think it is true that the President could use the "normal tactics of warfare to repel [an imminent or ongoing] attack" without prior Congressional authorization, Congress also has the Constitutional power to define what "tactics of warfare" are lawful, and the President would be bound to faithfully execute those laws even when acting as CIC.

And FISA is, of course, just such a law.
12.16.2005 10:34am
Been There, Done That:
sua sponte,

"The Fourth Amendment protects people, not places."

cold warrior

The president's military powers don't make him the military ruler of the populace.

YES, a warrant is required in all the situations you describe, and it is not hard to get one from the FISA court. Warrants would doubtless have issued for Mohammed Atta.

Let's ask it another way. Suppose Atta was plotting to kill a single person. People do that every day. Does the government need a warrant to wiretap someone it suspects of plotting a crime?
12.16.2005 10:35am
Cold Warrior:
Medis:

That is a better argument. And I think it is the correct argument when talking about the Administration's position on torture. If the McCain Amendment passes, I believe it is constitutional (or, to be precise, "not an unconstitutional infringement of the President's Commander in Chief powers.") In fact, I don't even think we need the McCain Amendment since the President signed and the Senate ratified the UN Convention Against Torture, and treaties are binding on the U.S. Government. Which is why, incidentally, we get a lot of hair-splitting sophistry from the Administration in support of some weird proposed exemptions from the standard law (e.g., CIA torture outside the US is not within the scope of the Convention Against Torture).

But again: one can interpret FISA as a restriction on the tactics that may be used in gathering intelligence on foreign nationals. But is FISA really inconsistent with my theory? Did it really mean to restrict the President's ability to intercept communications between Mohammed Atta while he is in the air and one of his associates in another attack plane? In other words, does FISA apply to intelligence gathering on the enemy who is engaged in an ongoing attack? I don't think so.
12.16.2005 10:43am
Medis:
Humble Law Student,

Actually, there are many deontological arguments in favor of the Rule of Law. Additionally, there are also traditionalist and rule-utilitarian arguments that approach the deontological arguments on this issue. So, even if you are purely a consequentialist, you might think that we should not reassess whether the Rule of Law is a good idea each time possible negative consequences arise.

Cold Warrior,

I think one needs to distinguish a case in which the President literally could not comply with FISA due to time constraints during an emergency and the more general case of the President acting to defend the United States. In the prior case, which we might call a legitimate "emergency", the President might be excused from complying with FISA. But I would maintain that if it is possible for the President to comply with FISA, and FISA is otherwise applicable, then he does in fact have to obey the law even when acting as CIC.
12.16.2005 10:46am
Cold Warrior:

Warrants would doubtless have issued for Mohammed Atta.

Yes, if we'd known that he was a terrorist in waiting before he got on that fateful flight out of Boston.

But do you really mean to argue with my hypothetical involving interception of Atta's cell phone calls made while the plane was in the air? Do you really think it's practicable that the Administration run into the FISA court, present evidence, and get a warrant during the course of a one hour flight? How would we even know it was a one hour flight? Couldn't Atta have flown into the John Hancock building in Boston instead? Does the FISA statute really restrict the President's immediate ability to repel an ongoing attack? Is the answer "yes" if the attack is expected in 4 hours, but "no" if it is expected in one hour? Where do you think FISA draws the line? Where would you like to see the line drawn?

Back to my mantra: it is a fair criticism of the Bush Administration to say that many of the non-FISA surveillances were not aimed at stopping any kind of imminent attack, and that the Administration therefore was legally bound to go through the FISA process. But it is not fair to say that the FISA process is required when the attack really is ongoing or imminent, such that the harm would have already occurred in the time it would take to get a FISA warrant.
12.16.2005 10:51am
Medis:
Cold Warrior,

Oh, and the Senate placed a Reservation in its ratification of the CAT that said Articles 1-16 would not be self-executing. So, we do need to enable those provisions through additional laws.
12.16.2005 10:52am
Martin Morgan:
I'm reminded of the people who put burglar bars on their windows and then die trapped in a fire.
12.16.2005 10:52am
Justin (mail):
Humble Law Student said:

Works for me

I hope you fail out of law school, Humble. Unfortunately, you obviously go to a very good one with a no fail policy, because otherwise you would have failed out already with that attitude towards the constitution.
Shame.

You're treating Been there, done that like he's somehow dumber than you. He's not. You need to stop.

You have on these boards attacked those mercilessly for a wide range of opinions you have then taken in other contexts. When it comes to campaign finance and affirmative action, its "can't you read?" not "Well, we have to secure rights and liberty."

But you're arguement now, though attempting to actually engage the text rather than parrot it, it off by a mile, and in doing so you fail to engage the people that you insult. What Near R., and Been There, Done That, and I, had I the patience to join the argument, were saying, was not that "we are a nation of laws because it's easier for law students to pass that way." What they're saying is "we're a nation of laws because we need to protect our rights and liberties, and historically giving the government overbroad police powers has been by far the biggest threat to the our democratic way of life." And your arguments fail to even acknowledge the history of both the founders and the Constitution since. You're young and, rather than Humble, you're extremely arrogant, and because in your nascant political life this has been the greatest focus of your attention, you assume that 9/11, unlike the Civil War or the New Deal, brought forth a new constitution, because Osama Bin Hussein is the GREATEST THREAT EVER, and all the checks and balances that have gotten this country through the Whiskey Rebellion, the War of 1812, the Civil War, Reconstruction, the Progressive Era, World War II, the Cold War, and Vietnam, are USELESS now. The argument is absurd, and the counterargument is so obvious it almost doesn't need to be said.

Assuming the conlusion, i.e. "we're a nation of laws in order to secure rights and liberties, and thus (the biggest intellectual revolution of our Constitution) that the laws apply to the executive are unneccesary, and if he invokes our rights and liberties in a "tenuous" sense, we don't need no stinkin' law" would fail you out of a rigorous law school. I'm sure at your law school, you got a B. Good times.

So calm down and try and treat your superiors as at least equals.
12.16.2005 10:57am
Cabbage:
First they came for the international terrorists making international calls and I did not speak because I am not an international terrorist making interantional calls.

Then they came for...

Oh, wait, they're just going after those with links to terrorists making international phone calls.

Carry on!
12.16.2005 10:59am
snead16 (mail):
Cold Warrior:

The Fourth Amendment -- and every other protection in the Bill of Rights -- acts to limit executive authority in any and every form, including a President's war powers.

"[A]ll governmental power--even the war power, the power to maintain national security, or the power to conduct foreign affairs--is limited by the Bill of Rights." Kleindienst v. Mandel, 408 U.S. 753, 782-83 (1972).

And if the feds found out that a call to explode a bomb was about to be made, no search or seizure warrant would be needed. It's a classic "exigency." So an immediate interception or arrest would be totally appropriate.
12.16.2005 11:02am
Medis:
Cabbage,

Since they did not seek and obtain FISA warrants, how do you know there was probable cause to believe that the targets were agents of a foreign terrorist organization?
12.16.2005 11:07am
Cold Warrior:
Medis said:

Oh, and the Senate placed a Reservation in its ratification of the CAT that said Articles 1-16 would not be self-executing. So, we do need to enable those provisions through additional laws.

Thanks. I wasn't aware of that.

But that simply means that there is no remedy for a violation of the CAT without enabling legislation. The President is still obligated to conform his behavior to the dictates of his treaty obligations.

Off topic a bit, and you're reaching the limits of my knowledge of CAT, so I won't get into this any more ...
12.16.2005 11:12am
Cold Warrior:
Snead16 (by the way, is that a reference to Norm Snead? was he #16?) said:


And if the feds found out that a call to explode a bomb was about to be made, no search or seizure warrant would be needed. It's a classic "exigency." So an immediate interception or arrest would be totally appropriate.


Right. And that's exactly where I've been trying to take this discussion. The 4th A. prohibits only "unreasonable" searches/seizures. Your scenario makes a search/seizure without a warrant both reasonable and necessary.

And similarly, the FISA should be read in a way that does not call into question the constitutionality of the statute. If Congress meant to infringe on the President's commander-in-chief powers and required the President to get a FISA warrant before the Army could do surveillance on an ongoing attacking foreign force, then the FISA would be unconstitutional.

A similar argument, of course, has been made in much greater depth with respect to the War Powers Act.
12.16.2005 11:18am
Been There, Done That:
Airplanes in the air dropping bombs is an ongoing attack.

People making phone calls, even nasty terrorist people plotting for some event in the future, is NOT an on-going attack.

This is not about some event where the NSA had to rush out and bug someone RIGHT NOW RIGHT NOW ASAP and couldn't even get an emergency FISA warrant. This is about a PROGRAM of ON GOING violation of the law.

Humble may be in law school but he is not absorbing anything remotely legal. "Let's change the means until I get the ends I want" is not law. The ends, at least in this country, are -- DUE PROCESS, RULE OF LAW, SEPARATION OF POWERS, LIMITED GOVERNMENT, FUNDAMENTAL RIGHTS. You can't undo these because, as Humble fears, people might become muslim.
12.16.2005 11:18am
snead16 (mail):
On December 16, 1950, Harry Truman signed an executive order declaring a state of emergency. The story was reported in the The New York Times the following day in this article, which is an interesting backdrop to this discussion.


PRESIDENT PROCLAIMS A NATIONAL EMERGENCY; AUTO PRICES ROLLED BACK; RAIL STRIKE ENDS; ALLIES GIVE UP HAMHUNG; WU REJECTS TRUCE
TRUMAN SETS DRIVE Gives Wilson Sweeping Powers, Asks 'Mighty Production Effort' U.S. RALLIES TO CALL Congress Speeds Action-Stand of President Praised in Europe
By ANTHONY LEVIERO
Special to THE NEW YORK TIMES

RELATED HEADLINES

Strikers Return: Workers Heed Request of President — Freight Jam Is Melting: Mails Moving Again: Pay Dispute Settlement Is Expected Quickly in Washington

Recent Auto Rises Canceled by First Price-Freeze Edict: 'Ceiling Regulation No. 1' of Economic Stabilization Agency Holds Schedules to Dec. 1 Levels — Wage Study Set
OTHER HEADLINES

U.N. 'Trap' Alleged: Peiping Representative Says He Will Start Home Tuesday: Bids U.S. Quit Korea: 'Volunteers' to Withdraw if Formosa Also Is Yielded, He States

Paris and London Void Pacts in Arming Bonn, Soviet Says

Red China's Assets in U.S. Are Frozen: Washington Takes Unilateral Action — Tightens Ban on Shipping to Mainland

Beachhead Is Cut: U.N. Troops Forced Back to Narrowed Area as Foe Perils Lines: Navy Shells Reds: MacArthur Aides Report Chinese Build-Up for Attack in West

Nyack Area Fears the Thruway Means Razing of 250 Buildings

U.S. Urges Defense Parley By All American Republics

Disaster Services Put on Alert Here: Wallander Orders Agencies to Be in Condition of Readiness on 24-Hour-a-Day Basis

Hanley to Get $16,000 State Job; Dewey Makes Good His Promise

Washington, Dec. 16—President Truman proclaimed a state of emergency this morning and delegated many of his own war powers to Charles E. Wilson, the new Mobilization Director. Soon afterward the defense program moved into higher gear.

Today was a day of action in the White House, in Congress and elsewhere in the Government as officials moved to implement the President's declaration to the nation and the world last night that the United States would meet the challenge of communism.

The Economic Stabilization Agency canceled the price increases made by Ford, General Motors and Chrysler in the last few days, and this was merely the harbinger of many new controls that eventually will encompass the entire economy.

Industry evinced its readiness to accept any war production goals, striking railroad men returned to work, and the general response from the public indicated an acceptance of the austerity program suggested by the President.

Proclamation Is Signed

Mr. Truman had pleaded for unity, like past Presidents coping with crises, and as in 1917 and 1941 the country was rallying with vigor.

In the free countries of Western Europe Mr. Truman was applauded for his no- appeasement speech in which he pledged to create an "arsenal of freedom" to strengthen all free countries. From Russia, which the President blamed directly for the postwar troubles of the world, came a typical blast that this country was warmongering.

Mr. Truman took two actions this morning to start a drastic increase of the mobilization program. He signed the proclamation of emergency, which unleashed scores of additional executive powers, and issued an executive order granting virtually blanket authority to Mr. Wilson to carry out all aspects of war production and economic control he deemed necessary. This authority received by Mr. Wilson will be subject in the Executive Branch of the Government only to the veto of President Truman.

Threat to Freedoms Cited

In his proclamation President Truman declared that conquest of the world was the objective of "Communist imperialism." He said this now constituted a threat to the freedoms guaranteed by the Bill of Rights, to the free enterprise system and to other rights, like collective bargaining, that free people had chosen for themselves.

These were the elements of a "full and rich life" that could be lost by the triumph of the Communist way of life, Mr. Truman said, calling for "a mighty production effort" for defense.

Mr. Truman called for sacrifices, for cooperation by state and local officials, for loyalty to the principles on which the nation was founded, and faith in our friends and allies. He expressed his confidence that the people would not be found wanting in courage and determination.

The President signed the proclamation in his Oval Room office in the Executive Offices of the White House at 10:20 A.M. Only a few members of his staff and photographers were present. His manner was brisk.

He would not pose for "one more" for the "One More Club," as he calls the photographers. They had to catch him in the act of really signing or lose the picture. Usually he will pose over and over again until each photographer gets a proper "shot."

That quickening of a mood was felt generally in the capital. The Senate Armed Services Committee approved a national civil defense program, the Senate Finance Committee met in extraordinary session to work on the excess profits bill and the Economic Stabilization Agency clamped a freeze on automobile prices, the first of many promised controls.

Having taken the necessary legal steps to speed mobilization, Mr. Truman, tired from two weeks of unusually heavy work, but apparently confident and resolute, went aboard the official yacht Williamsburg for an overnight rest. He took along a few friends and will return tomorrow afternoon.

Last week he had conferred daily with Prime Minister Clement Attlee of Great Britain on the Korean war and the larger world crisis. This week he had been in almost continuous session with members of Congress and Administration leaders, charting the course he disclosed in his speech last night.

The executive order spelling out Mr. Wilson's powers and responsibilities appeared to leave out nothing that the industrialist could desire to tackle his job in an untrammeled way. It had been predicted he would get powers exceeding those of James F. Byrnes when Mr. Byrnes was the top mobilizer of World War II, and the document bore this out.

"The director," stated the order, "shall on behalf of the President direct, control, and coordinate all mobilization activities of the executive branch of the Government, including but not limited to production, procurement, manpower, stabilization, and transport activities."

The phrase, "including but not limited to," left open the possibility that other areas of defense activity would be added. The next paragraph, numbered 3, subordinated William H. Harrison, Director of the National Production Authority, and Alan Valentine, Director of the Economic Stabilization Agency, "to the direction and control" of Mr. Wilson.

The fourth paragraph specified that the Director of the Office of Defense Mobilization should report to the President periodically, and established Mr. Wilson's authority over Cabinet members and other heads of Federal agencies where mobilization projects are concerned. Under the original concept of a partial mobilization, geared to what was then believed to be a comparatively small war in Korea, most of the control agencies were dispersed in the Federal departments. For instance, the National Production Administration was placed in the Commerce Department.

Many Powers Are Revived

This fourth paragraph gives Mr. Wilson ascendancy in the control of these dispersed agencies, and he is expected to consolidate them as he gets organized.

Completing the sweeping terms, Mr. Truman in the final paragraph stated that today's order should prevail over any prior executive orders or directives that prove to be inconsistent with it.

Mr. Wilson, who has resigned his $175,000-a-year position as president of the General Electric Company to take the $22,500 job of Director of Defense Mobilization, will have to be confirmed by the Senate before he can begin operating. There, was no doubt on Capitol Hill that he would be confirmed promptly.

The proclamation of emergency, apart from an important psychological effect it is expected to have on the approach of the average citizen to his part in the crisis, revived scores of powers which have been latent. Some of them had been rescinded by Congress in 1947, and some were enacted since then but could be given life only by the proclamation.

Most of them were nominal powers or pertained to particular facilities that had been built or leased by the Government, with the privilege of recapturing them in an emergency like the present. Some of the powers were important and extensive, however, like the broad ones authorizing recapture of the many airfields and plants built during World War II.

But Mr. Truman already had the most critical powers for mobilization, vested in him by the Production Act of 1950, and it was this which he invoked in designating Mr. Wilson as the person who will implement them.
12.16.2005 11:24am
kater:
To use a (hopefully forgiveably) overwrought phrase, I'm really shocked and appalled at even the idea of regarding warrantless domestic spying with the levels of apathy and complacency apparent in some of the comments above. What exactly would it take for some of you to distrust your government? This isn't conspiracy crap or anti-Americanism; it's precisely the skepticism towards government action--the eternal vigilance--on which limited government depends.

For what it's worth, I would rather be killed by my enemy than controlled by my country.
12.16.2005 11:30am
Jim Rhoads (mail):
I sure am glad to see Medis and Cold Warrior on this thread. Analysis beats rhetoric every time.

BTDT:

I think your theoretical 1983 case is doomed to failure. Even if you get over the high liability hurdle, where are your damages? I admire your spunk, though.
12.16.2005 11:38am
Been There, Done That:
Rhoads,

Section 1983 is not just for money damages.
You can get injunctive relief.

Same for the Declaratory Judgment Act, 28 USC 2201.

That's not rhetoric. It's the law.

Do you really believe that the government can violate the constitution so long as it doesn't pay money damages?
12.16.2005 11:55am
Cold Warrior:
kater said:

I'm really shocked and appalled at even the idea of regarding warrantless domestic spying with the levels of apathy and complacency apparent in some of the comments above. What exactly would it take for some of you to distrust your government?

I hope you don't consider me one of the complacent apathetics. I am active in, and concerned about, the interplay between the war on terror and civil liberties.

I just think it is better to address the Administration's arguments head-on rather than to run around screeching "police state, nazi, fascist ..."

I was involved with some aspects of the government's post-9/11 response. I can tell you that all of us -- everyone I talked to -- believed (and had good reason to believe) that 9/11 was just the initial salvo in a planned series of attacks. Again, 9/11 involved a complex web of actors, nearly all foreign, operating with at least the tacit approval of a foreign government. Every 2 a.m. phone call was taken very seriously. And I do believe (but cannot "prove" in a manner that will satisfy the Administration's staunchest critics) that one or more follow-on attacks were prevented in the days, weeks, and months following 9/11, and that these planned follow-on attacks were orchestrated by many of the same terrorist leaders.

In short, I believe that the Administration correctly characterized that time period as a time of war. And I believe that anyone who takes a serious look at that time period will agree with me. And I believe that many of the extraordinary actions of the Administration during that time period were both prudent and justifiable (legally and morally) as efforts to repel an ongoing attack from these enemy forces.

At some time -- I can't tell you exactly when, and that's the problem -- we all began to feel that we had a better handle on the problem. Attacks had been disrupted in the planning stages; terrorist cells had been broken up. And, of course, the war in Afghanistan had a profound effect on the terrorists' command and control structure. And at this point, perhaps the use of extraordinary wartime powers under the President's commander in chief authority became more difficult to justify. Four years after 9/11, I'd suggest that the use of the commander in chief powers to undertake certain activities (including surveillance without a warrant, FISA or otherwise, and detention of "enemy combatants" not encountered on the battlefields of Iraq and Afghanistan or sorrounding areas) is problematic.

But these issues require difficult balancing. No one is illuminated by strident comments on either side that ignore the real world situtation and the changes in it over the last 4 years. "First they monitor the terrorism financeers, next it will be NARAL" doesn't convince me, and I hope it doesn't convince anyone else. Similarly, "this is a war, any surveillance of people with ties to Saudi Arabia is perfectly fine, and no one should have to go to court to justify our conduct of the war" fails to convince me.

Reading the comments I can't help but feel that my position -- deferential to the Government in time of attack, but somewhat less so the farther we get from the actual attack -- is an extreme minority position.

I just can't understand why that's the case.
12.16.2005 12:03pm
Neal Lang (mail):
You can argue the Fourth Amendment is a bad idea. You can argue that ANY constitutional right is a bad idea, since they all frustrate law enforcement and can be said to enable criminal/anti-social/destructive activity in some sense.

To argue the 4th Amendment, you must first understand it.
Article the sixth [Amendment IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Kindly note the phrase: "unreasonable searches and seizures". This, of course, is the limiting concept of this Amendment. What does "the People" consider "unreasonable".
But "I trust the government to keep me safe so I don't care what it does" is not a legal principle, and this NSA program is not remotely legal under our constitution.

Like the FBI's "Carnivore", I am reasonablely sure that this NSA program searches the "ether" for "hits" on key phrases and words related to the "War on Terrorism" and foiling future "9/11's". The idea behind the 4th Amendment is more government seizure, than search. Also, to establish a "playing field" that protects the "accused" in "criminal" proceedings. Should this NSA program generate a "hit" that upon futher investigation becomes a "lead" into the thwarting a "terrorist attack", it is almost certain that the perps will not stand trial, so the question of their 4th Amendment protections are moot. If you view the War on Terror as "criminal investigation" instead of a "military exercise" than you might question the governments use of such tactics. However, the War on Terror is a war, and defeating the enemy and proventing the success of their terrorism takes precedence over "criminally prosecuting" them once they are apprehended.

Also, Governmental exemptions from the "Interception and disclosure of wire, oral, or electronic communications" Code are rather broad:
(e) Notwithstanding any other provision of this title or section 705 or 706 of the Communications Act of 1934, it shall not be unlawful for an officer, employee, or agent of the United States in the normal course of his official duty to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, as authorized by that Act.

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.

Finally, according to our Founders, the sole purpose for which "the People" institute governments is to "secure" their rights of "Life, Liberty, and the Pursuit of Happiness (Property)". It is "the People" who will judge if government, in providing this "security" through these "warrantless" communications intercepts, has crossed the line of "unreasonableness".
12.16.2005 12:10pm
Ohm:
Putting aside the Constitutional question for just a second, arguments that justify this surveillance by comparing it to wiretapping Mohammed Atta mid-flight without a court order miss an important component of (Criminal, non-FISA) wiretap law: 18 USC 2518(7) provides an emergency exception in cases involving, among other things, the "danger of death or serious physical injury to any person" and "conspiratorial activities threatening the national security interest" when there isn't enough time to order to court to get an order.

But this isn't a blank check for the kind of reportedly boundless surveillance used here. To comply with 2518(7) the government needs at least three things: (1) the approval of a high-ranking DOJ official or a State AG; (2) grounds to get an order, if there had been time (meaning probable cause); and (3) (This is a biggie) the wiretapping must be followed up with an application for an actual court order within 48 hours. No doubt, the Administration could have used this exception to wiretap any of the 9/11 hijackers mid-flight without breaking federal law.

There is a similar provision in the Pen Register/Trap and Trace Act allowing for the emergency collection of numbers dialed and received. See 18 USC 3125. I don't know enough about FISA to know if there is a parallel provision in it.

Congress considered the emergency situation and provided a process for complying with it. If what the NY Times reports is true (and part of me still hopes it is not), it is obvious that Bush's lawyers declined to use the emergency exception provisions at their disposal. Whether or not Article II gives the President the power to do so, I leave for other commenters...
12.16.2005 12:22pm
David Pittelli (mail) (www):
We have here the government conducting warrantless surveillance on citizens within the USA.

Actually, as I understand it they are only monitoring international calls.
12.16.2005 12:29pm
Lowly Government Worker (mail):
To all those who don't think this is a big deal....what if the next "liberal" President decided the most important war was the war on guns and then used allowed a government agency to spy on citizens to collect lists of gun owners and dealers. I daresay all you citizens who believe this is no big deal would then be up in arms. The NRA would be apoplectic...not that that's a bad thing.
12.16.2005 12:44pm
Medis:
Neal Lang,

But as subsection (f) seems to make clear, if an officer is conducting electronic surveillance within the meaning of FISA, then following the FISA procedures is the "exclusive means" by which such surveillance can be conducted. Similarly, the safe harbor in subsection (e) applies only if such surveillance is conducted "as authorized" by FISA. And as noted above, FISA makes it a crime to conduct such surveillance except as authorized by statute.

So, as I understand it, the 2001 AUMF must be taken to have implicitly repealed or amended these provisions, because otherwise the NSA surveillance without FISA warrants would be unauthorized by statute, the NSA officers conducting the surveillance would be committing criminal acts, and the safe harbor provisions would not apply.

I'm not sure one can legitimately read the 2001 AUMF that way ... and indeed, that would be a pretty frightening concept. In other words, if the general language of the AUMF somehow repeals or amends these particular statutes as the President deems necessary, then does it also repeal or amend all other federal laws as the President deems necessary? That can't be right, and I think (or at least hope) that this proposition would be a hard sell to a court.

Cold Warrior,

As I have said in other contexts as well, I think the systematic problem is that Congress has not been playing a sufficiently active role in providing regulations for the "war on terror". In other words, if the existing legal framework is inappropriate for the changed circumstances, then we need to change the legal framework, and that is what Congress should have been doing.

And I agree with another commentator that if it is true that the Administration deliberately did not seek action in Congress on this issue because of "political risk", we again encounter a very frightening principle--that somehow we can't "risk" operating as a democracy during war. Again, that can't be right: except perhaps when it is impossible to seek new legislation given emergency time constraints, the President has a duty to faithfully execute the existing laws until those laws are actually changed, even during war.
12.16.2005 12:46pm
Medis:
David P.,

But as I read FISA, it doesn't matter where the person on the other end of the line might be. It is electronic surveillance under FISA when it is to or from a person in the United States.
12.16.2005 12:52pm
Shelby (mail):
Lowly:

Perhaps you've been confused by all the asininity about "War on Poverty," "War on Drugs," etc. In this case we are talking about an actual armed conflict against actual enemies who are actually trying to damage and destabilize our country. Try again.

That said, I'm with those who think what the Times alleges is appalling. If the government thinks it needs these powers, there are legal ways to get them -- obtaining warrants, or passing new laws. What other extra-legal measures have the feds taken to spy on us, that have not yet been revealed?

Remember, these powers are not inherently limited in time. The "War on Terror" (more properly, on anti-American terrorists and their supporters) is likely to be of indefinite duration. There will surely be many changes in government (party in control) while it continues. Do you trust your most dire domestic opponents to use these secret powers wisely and with restraint? If the government retains this power and it eventually gets abused, remember that the abuse will also be secret.
12.16.2005 12:57pm
Cold Warrior:
Medis--

That is correct.

Surveillance between two foreign actors located outside the United States is simply not a problem under U.S. law, either statutory or constitutional (since foreign actors abroad are not part of "the people" who are protected under the 4th Amendment). FISA doesn't even apply.

Communications between two parties in the USA are subject to FISA, provided that we are dealing with an agent of a foreign power.
12.16.2005 1:01pm
Jonny's_Light:
Been there done that,

Humble Law Student in the beginning simply states that it is personally ok for the Gov't (NSA) to invade our privacy as it did to ensure our safety. Then it seems to get taken out of proportion.

Humble then is not arguing the fact that the Government should be allowed to trample on the Bill of Rights and the 4th amendment, but is simply stating that the process that was used by President Bush was not following the process that has been formed i.e. a warrant. Bush followed no process except his own agenda.

Here is a quote from Humble Law Student to justify his point for the process that should be used:
"There seem to be two basic requirements that must be met for such monitoring. That the individual monitored has some connection to a terrorist group (albeit, it appears it only has to be a tenuous connection) and that the individual must be calling someone outside of our shores. Works for me (assuming they abide by those requirements)."

These apparently were not met, which is why this case is so important.

I agree the with the common consensus that freedom and liberty are essential for this democracy to thrive and is why the Bill of Rights and Constitution were created. This is a new day and age, and Humble is correct in stating that the process in which is to be taken should be able to change. There is no fault in that opinion.

John Stuart Mill in On Liberty wrote, " the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others."

President Bush sought this but did not follow the process in which we have formed.

The sole purpose of the NSA in this investigation is to prevent harm from terrorists to Americans citizens. This was not an act of the Government intruding upon our civil liberties for the mere arbitrary reason of boredom.

Been There, sums up the checks and balances which is needed, and I quote, "Under FISA (and the Fourth Amendment), a judge gets to decide who is, or is not, a "would-be terrorist." This decisionmaking is absent from the program. That's the problem."
12.16.2005 1:04pm
Cold Warrior:
Medis also said:

As I have said in other contexts as well, I think the systematic problem is that Congress has not been playing a sufficiently active role in providing regulations for the "war on terror". In other words, if the existing legal framework is inappropriate for the changed circumstances, then we need to change the legal framework, and that is what Congress should have been doing.

And I agree with another commentator that if it is true that the Administration deliberately did not seek action in Congress on this issue because of "political risk", we again encounter a very frightening principle--that somehow we can't "risk" operating as a democracy during war.

Your reasoning is sound as a matter of policy. However, it won't satisfy those who say that Congress cannot legislate in this area ("surveillance of the enemy in time of war") because any such legislation would be an unconstitutional infringement on the President's commander in chief/war powers.

That position is considerably more hardline than mine. For example, I'm not one of those who believes the War Powers Act is on its face unconstitional. I do think Congress has an appropriate role to play in structuring Executive Branch practice. But I do concede that the hardliners have a sensible (albeit wrong) theory: one that should be argued on the constitutional merits, and not dismissed as some kind of Presidential usurpation of power ...
12.16.2005 1:07pm
Medis:
Cold Warrior,

Moreover, as I understand it, NSA interceptions of communications between a person in the United States and a person outside the United States is covered by FISA if the communication is acquired inside the United States (but not if the NSA intercepts it on the other, foreign, end). And if I understand the NYT story correctly, the NSA has been doing that (acquiring within the UNited States international communications involving a person in the United States) without a FISA warrant.
12.16.2005 1:09pm
byomtov (mail):
Those who argue that this is OK because the information cannot be used in a criminal case are, possibly wilfully, blind.

This Administration claims the right to lock up people, even US citizens, whom it considers dangerous without any sort of judicial proceeding at all, much less a trial. So now we have the situation where warrantless, secretly obtained evidence, subject to no review or challenge whatsoever, can be used to imprison anyone the President decides to imprison, with no review whatsoever.

What next, teaching kids to spy on their parents?
12.16.2005 1:12pm
jgshapiro (mail):
Cold Warrior:

Surely you don't say the Government needs a search warrant to intercept a cell phone call between Mohammed Atta and one of his bosses on the ground in Florida? . . . everyone seems too ready to make the indefensible arugment that even if a foreign force is in the midst of a bombing campaign, communications cannot be intercepted without a warrant (FISA or ordinary). And that argument is silly.

The trouble with your argument is that it has no limits. How do you know who Atta's bosses are on the ground in Florida? You use a well-known name (Atta) to dispense with the problem that the government may think that Mohammed Smith is a terrorist, or that Michael Jones may be a terrorist sympathizer, but may be mistaken. In the meantime, there go their Fourth Amendment rights.

Your argument leads to the natural conclusion that wiretap surveillance on any person in the U.S. is ok under the president's war powers because that person *might* be part of a conspiracy with someone on foreign soil (or another foreigner on U.S. soil) and we won't know until we listen to the call. What is left of the Fourth Amendment if we accept that argument?

Very few situations require action so quick there is no time to wait for a FISA warrant to issue. It takes hours for one to issue. What is happening here is that the government poses the ticking bomb scenario, gets its authority from that extremely rare circumstance, and then applies its newfound authority to many, many other circumstances in which it could not possible apply because it is simply easier for the government not to bother getting a FISA warrant.

Nobody's said that information gleaned from a Defense Intelligence domestic surveillance was used, or ever would be used, in a criminal court.

I believe this was the point of the FISA review court's ruling two years ago, eliminating the wall between information obtained for national security purposes, and that obtained for criminal prosecution purposes. Prior to that, it had been the rule that information obtained for the former couldn't be useed for the latter, since the protections on surveillanc for the former were lower than the latter. But that rule was obliterated. I see no distinction between info obtained by the DIS and through FISA in that sense. Once the info is in gov't hands, there is no legal reason they cannot use it against a suspect in a criminal case. There may be practical reasons why they choose not to, but that is a discretionary call.

When you combine the government' assertion that they need no FISA warrant during wartime to monitor international calls with its policy that information obtained for national security can be used in law enforcement, you are just inviting abuse. At the very least, if the government is going to adopt this policy (i.e., no warrant neeeded to intercept international calls during wartime), they should get express Congresional authorization first.
12.16.2005 1:17pm
clb72:
James Madison:
Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. . . . [There is also an] inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and . . . degeneracy of manners and of morals. . . . No nation could preserve its freedom in the midst of continual warfare. . . .
12.16.2005 1:21pm
Smuvdee (mail):
Most of you have made good points from what I read, my position is simple less privacy in this case will equal more security. No I am not saying break the rule of law the gov't had the ability to monitor your calls always and did they just never could take action within the borders of the U.S.A. NSA didn't acquire this ability overnight. You can not be prosecuted from these intercepts it is a tool to warrant more scrutiny on an individual and prevent a terrorist act. This program is transparent to us and always will for those who favor them getting a warrant remember this the only one in the judges/magistrates office to obtain the warrent is the requestor not the persons being surveilled hence getting a warrant is easy.
People not planning a terrorist act will never and I mean never will have anyone show at their door to arrest them based on a conversation they have had. During war our some of our basics rights have been curtailed somewhat it has never been a problem. What makes this different is the question of how long will it last with this kind of conflict we don't know! Hence the difference conventional conflicts we have been in had a ending point the copitulation of an enemy this conflict could go on an extremely long duration. Let us not forget that terrorist count on our openness to perform their attacks. They know USA laws too and use them to their advantage as do your common criminals do.
Bottom line is if you are not a Terrorist what is the impact of all this? Basically someone in the NSA reading or listening to your conversation and thinking you are freak at worst if you are criminal and dumb enough to use cell phones or email to commit, plan or brag about a crime the local authorities get an anonymous tip and you get caught that would really break my heart. All the doomsday speculations thrown out there will not come to pass due to the rule of law ie the fruit from the forbidden tree.
12.16.2005 1:25pm
Medis:
Cold Warrior,

On the constitutional argument you note, I agree that it requires a constitutional answer. And I think the answer is clearly in the Constitution. Specifically, Article 1, Section 8 enumerates a number of congressional powers to regulate our conduct of war, and of course the Necessary and Proper Clause applies as well (eg, meaning that Congress could make it a crime to violate its regulations).

I think the Supreme Court's cases also clearly support the proposition that Congress has the constitutional authority to pass laws regulating our conduct of war. Accordingly, while the President has a great deal of discretion as CIC and also the ability to act without prior congressional authorization in certain exigent circumstances, his general duty to faithfully execute the laws still applies to his decisions as CIC during war.

And although I hesitate to accuse people of intellectual dishonesty, I do find it remarkable that the contrary arguments I have seen tend to simply ignore both these provisions in Article 1 and any disfavorable cases. In that sense, these arguments usually look to me much more like argumentative briefs (and not very good ones), rather than attempts to objectively determine the law.

So, if pressed, I have to admit I am not sure if the relevant officials in the Administration all really believe the law is on their side. Rather, it seems equally plausible that they merely think the law should be on their side, even if it isn't, but that is nonetheless good enough for them.
12.16.2005 1:26pm
David Matthews (mail):
Medis:
"In other words, if the existing legal framework is inappropriate for the changed circumstances, then we need to change the legal framework, and that is what Congress should have been doing."

Wasn't that the stated purpose of the "Patriot Act?" I've always been puzzled that a criticism of the "Patriot Act" is that it restricts our liberties. No kidding. That was its purpose (I thought), to specify to the Administration more clearly what emergency powers the Administration should have, given the attacks of Sept. 11 and the need to respond to those attacks and prevent further ones. That was, I thought, the major justification for sunsetting provisions, so that Congress could evaluate our progress X years down the road, and our situation, and decide whether these restrictions were still justified, which should be removed, which should be extended, and whether even further, more extreme measures might be needed, all within the context of Congress' war powers.

My point is, that Congress has done some of what you suggest they should be doing, whether or not you agree with the details of what they did, and that the Administration seems to be taking as its justification for action, an amazingly broad, but potentially defensible, interpretation of Congressional authorizations to justify its actions, again in the context of the emergency situation it maintains that we're still in, as regards the terrorist threat.
12.16.2005 1:36pm
Medis:
Smuvdee,

We really don't know what the impact has been or could be if the NSA is freed from the restrictions of FISA. But I suggest you look into the history that led up to the passage of FISA in 1978. Basically, in the 60s and 70s the government had been secretly spying on all sorts of people, including anti-Vietnam War protestors and civil rights activists, and allegedly misusing that information in numerous ways.

More generally, the problem is one of human nature: when you give people power to acquire information with no oversight, some of them are bound to abuse this power for improper purposes. In fact, this insight goes back at least to the myth of the Ring of Gyges.

Ultiumately, of course, this is all self-defeating. These secrets leak and people stop trusting the government, and then the government becomes ineffective. So, I personally have no doubt that all this is going to do more harm than good to our ability to fight the "war on terror" in the long run.
12.16.2005 1:44pm
GWULAW (mail):
I've just skimmed over this thread, so if someone has already mentioned this, please forgive me. But the FISA was passed BECAUSE the PRESIDENT OF THE UNITED STATES had taken the liberty of tapping people's phone lines without authorization or any sort of warrant. It is a DIRECT response to just this sort of activity. Bush's legal analysts on this one did even more legalese gymnastics on this one than they did in the Bybee Memo.
12.16.2005 1:49pm
Medis:
David M.,

Absolutely--even though I don't agree with every aspect of the PATRIOT Act, the general idea that Congress should oversee the creation of a new legal framework to deal with the threat posed by international terrorism is one I support. But if it is true that the Administration did not seek congressional authorization for this program, in the PATRIOT Act or otherwise, because of "political risk," then the Administration was actually subverting that very notion.

And as I noted above, I don't think the 2001 AUMF is somehow an adequate substitute for something like the PATRIOT Act (which, for example, specifically amended various portions of FISA). Again, the basic problem is that this interpretation of the AUMF would be a completely unbounded principle (that the AUMF could somehow repeal or amend any federal law as the President deemed necessary).

So, no, I don't think these positions are legally defensible. Rather, if all this is true, they contitute an rejection of the democratic process and the rule of law, not just an attempt to seek new laws that would be appropriate for new circumstances.
12.16.2005 1:57pm
David Matthews (mail):
Medis,

Thanks.

"But if it is true that the Administration did not seek congressional authorization for this program, in the PATRIOT Act or otherwise, because of "political risk," then the Administration was actually subverting that very notion."

I would agree, if it is true. I am suspcious that an unnamed source who is willing to leak information to the NYT that tends to be unfaforable to the administration would put forth the administration's best argument as to why it decided not to seek congressional authorization. The article also claims that the administration's legal team believes it to be on solid ground here. So I guess it might be best to hear some of those arguments (or let a court hear them) rather than to believe that the administration can do no better than what the NYT gives it credit for in the article.
12.16.2005 2:06pm
Medis:
David M.,

Again, I agree. In fact, I specifically included that qualifier because I think it would be premature to draw any firm conclusions about motives based on this NYT story.

That said, I do think this Administration tends to side against congressional regulation of the "war on terror" (and I fear that the lesson they learned from the PATRIOT Act is to never even try again). For the most part, I still think the primary responsibility for their failure to be more active in this area lies with Congress itself, but it certainly does not help if the Administration is opposing such efforts.
12.16.2005 2:32pm
dans310 (mail):
I hope everyone following this thread recognizes how Been There Done That marginalized him/herself in the debate by engaging in a personal attack on Humble Law Student. When exposed by a principled, cogent argument as simply being either anti Bush, anti Republican majority, or anti conservative, Been There resorts to the typical tactic of those on the wrong side of the issues these days. Well argued Humble.
12.16.2005 3:16pm
Jonny's_Light:
dan310, did you see my thread?? I agree with you on this one dan
12.16.2005 3:27pm
Been There, Done That:
Hey, while you're at it, give him the Medal of Freedom, like all these other heros of the White House.

I didn't attack Humble Law Student personally. HLS made no principled cogent arguments. He argues only that the law should bend to yield his pre-determined result, whatever that may be at the moment. So things like due process and the rule of law can be dispensed with if it doesn't look like we'll get the right results.

Wrap yourselves in the flag. Salute the President. Get out your G.O. Pom-poms. Trust the government. Whatever it does, is a-o-k, it's designed to make us safe. Big Brother loves you! And we'll figure out a way to twist the law to make it work later.
12.16.2005 3:45pm
Mary Katherine Day-Petrano (mail):
z-maffeo -- "I am quite comfortable with the NSA listening to whatever conversation of mine or anyone else's they wish. Its whether or not they can prosecute me for what they here thats the salient question."

I disagree. I am NOT comfortable with the government listening to whatever conversation of mine they wish. This has nothing to do with the "what do you have to hide" stereotype. I would not want the government listening to my having sexual relations with my husband, nor to medical discussions about a very private veneral disease (I don't have one, but lets just assume a hypothetical). In the case of my husband and I, my husband is an attorney, so the surveillance by the government destroys the attorney-client confidentiality in which all his client place their trust. Are you confortable with that? Your argument assumes flawed presises and cast far too overbroad a net.

Another thing, the salient question is not necessarily whether they can use it to prosecute; it may be salient in some circumstances. In the circumstance of my husband and I, the salient question is they have used their ill-gotten intelligence to actively obstruct two disability civil rights cases, an "undue hardship" student loan case, and a Rehabilitation Act challenge to the Social Security administration -- of which would have a budget effect on the Bush administration tax cuts for the welathy platform. When intellingence is used to interfere with filing due dates of existing civil rights court cases, particularly ones that are jurisdictional, by exploitng a person's subsantially limited disability, then that misuse and abuse of the intelligence is the salient question.

Humble Law Student -- "Process is not the purpose. Our process is generally seen and believed to be good at delivering the 'results' we want. That is why we use it."

Exactly the point of why many people disagree with you!! And that's the point of why the Bush administration's abuse of the Patriot Act and surveillance violates civil and constitutional rights. The Bush administration wants to "deliver the results" it desires to the wealthy to cut taxes by cutting back food stamps, WIC subsidies for pregnant women, school lunches for children, housing subsidies for the disabled, medical care for the poor and disabled, Social Security benefits, Veterans disability benefits (by eliminating all PSTD claims), and the non-enforcement of disbaility rights under the Americans With Disabilities Act and Rehabilitation Act -- particularly in the State of Florida because, despite his neighsaying, it is apparent to maintain the tax cuts for the wealthy, the family dynasty must go on and Gov. Jeb Bush will run for President.

So, to "deliver the results" the wealthy tax cut Bush administration desires, it has been expedient (Machievellian) to not only turn the definition of "terrorist" and "terrorism" into an extremely vague and overbroad fishing net to reel-in critical purely domestic American citizens with unpopular views, but to redefine far too vaguely and overbroadly the definition of "National Security Interest" to include anything that would pose a perceived "threat" to the Bush administration efforts to cut taxes for the wealthy and support the war on Iraq by cutting all poor, educational, and disability programs to the bone. In this distorted sense, one can posit the argument on behalf of the Bush administration and Humble Law Student that when people are standing outside President Bush's Social Security reform speeches with protest signs protesting the cuts to Social Security disability benefits by privatizing accounts that constitutes a "National Security Interest," and therefore a "threat," subjecting those people to Patriot act surveillance -- or worse. We all learned the Soctratic method in law school, or perhaps you have not yet learned it, but most people can see where your argument leads from here. That is why you have made all the ad hominen attacks on Been There Done That, with whose points many people including myself happen to agree -- the people whose dissenting point of view you would stamp out by your ends justifying the means rhetoric.

Smithy -- I guess you just failed reading 101, and take it from a disabled person a federal magistrate acknowledes has a slow reading, decoding disability, reading the call of the question is critical to the success of the answer. To say there is no evidence the surveillance has been used against any American citizen for purely domestic First Amendment/civil rights protected activity is to stick the proverbial Ostrich head into the hole and pontificante about the world you can't see as you wish it to be.

Surveillance has been used against my husband and I -- how do we know? A 2003 police report documenting a "commando raid" on our vessel at about 3:00 am in response to my first ADA civil rights lawsuit and our speaking in our home a fictitious 'heroin drug' scenario to test out our belief the interference with our electronics was being caused by surveillance -- which brought forth the "raid" within 5-15 minutes, immediately thereafter four unidentified law enforcement officers were seen closeby who were not with the local police, the admitted (recognized by the District Court Judge) perjurer in open Court aknowledging he knew about (but did not personally participate in) the "commando raid," admitting the Vessel my husband and I arrested in admiralty was surveilling us. Since it was tied recklessly to endanger our lives forcing us to rescue it from the marine peril and admittedly was surveilling us, thats why we arrested it. There are also numberous Rule 26 disclosures about electronic interference with my cell phone, monitoring from Austin, Texas by an individual who tailored an equine web site to appeal to my autism who has since disappeared along with his now defunct web site, numerous instant message raids on my computer designed with colorful paw prints and leopard stripes to exploit the profiled appeal to my autism, hijacking my daughter's email adddress to induce me to open a chat room invitation (she was on a different instant message with me at the time and denied the hijack was from her), a convicted federal bank fraud trying to entrap my husband and I (conviction was readly confirmable on US PACER Party Index, as was his previous history of serving as an informant), a "bar applicant" who solicited me with an unauthorized LEXIS number that I promptly rejected and deleted, and the practice of the Middle District of Florida and Eleventh Circuit of having secret case dockets when there is this kind of activity going on. Several items are provable, and the rest my husband and I maintain we have the right to discover through the discovery process. So, to say "there is no evidence" is to state a position of ignorance hoping it not to be true, upon which you base your completely unsupported position; perhaps you do not have a comeback argument to confront the real facts, so you have to resort to unsupported premises?

And it is "a big deal," to the victims of such abuse. Thank you Medis -- "How would anyone know?"

Been There Done That -- "Don't you see the HUGE illogical leap there? How do you get to a place where citizens using their telephone are legally the same as enemy bombers? Does the government also get to shoot at people using the telephone, because, you know, they might be dropping bombs?"

You have made a very good point, lost apparently on several of the ends justify the means, lets abolish American freedom and the Constitution in favor of a police state folks. And that is why my husband and I are so outraged about our belief the Patriot Act has been used to obstruct disability rights unpopular with the Bush administration tax cuts for the wealthy bean counters. It IS a huge illogical leap, and that WHY we have a Bill of Rights. The law has certain safeguards built into the system of American freedom to weed out the wheat from the chaff of what is too far out there as a legimitate reason to conduct government spying and interference on purely domestic American citizens simply espousing unpopular views. And "does the government get to shoot people using the telephone?" -- that is the exact question my husband and I were asking the night before my unpopular Supreme Court Petition for Certiorari was due, Docket No. 05-7771, when we were suddenly thrust into the middle of a police operation with police cars screaming up to within inches of where we stood with search lights, officer with bullet proof vest and hands on guns, and we had to instinctively take cover behind our car because we thought we were going to executed in a spray of bullets to prevent my filing of the Petition in the Supreme Court. The police operation had nothing to do with us, so why were we thrust in the middle of it? To intimidate us and give us a heart attack? To exploit my PSTD over having seen my mother die a horrible, tragic death? Part of the Patriot Act is to profile the target's "soft spots," it looks like they knew mine. (Predictably, this was not an isolated instance as there is a repeated pattern of interference on almost each and every due date in my cases).

Bruce Cleaver -- your theory is not so far fetched. Extensive admiratly research shows the feds are building their foundation of extrateritorial jurisdictional reach on admiralty law. Perhaps that was the idea of the extensive revisions to admiralty in the House Conference version of Patriot reauthorization. There are some cases in admiralty where a Rule B attachment can attach EBTs as they tranfer through the banks from out of the Country -- e.g., thru NY banks and back out of the Country, if one can nab the EBT as it passes thru. We had an interest in the EBT theory in case the Vessel we arrested for any reason happened to sail out of jurisdictional waters of the Middle District of Florida.

Been There Done That -- "What happens in the inevitable 1983/declaratory judgment act case?"

Ahh, but that is the achilles heel of an Americans With Disabilities Act retaliation by Patriot Act abuse of a domestic American for purely exercising First Amendment/civil rights. The inevitable 1983 case is all washed up, a virtual dead letter now, due to the extreme limitations imposed by the Federal Courts Improvement Act, and anyways 1983 is a pass-thru type of statute to enforce other federal and constitutional rights found elsewhere -- it has no retaliation or preemption provision of its own. Essentially, without going into a lengthy discourse on 1983 (research subject matter for those bringing ADA claims), it has lost its teeth. Also, the Patriot Act contains immunity provisions that 1983 cannot overcome.

The Americans With Disabilities Act, on the other hand, was not limited by the Federal Courts Improvement Act, and also contains an express conflict preemption (amendment/repeal) provision over "other federal laws" that conflict with the rights, remedies, and procedures guaranteed by the ADA. The ADA also has a retaliation provision directed to "any person" that retaliates. In other words, the retaliating person does not have to be an employer, public entity, or place of public accommodation as defined by the ADA -- it can be "any person" including Joe Yahootie. If you apply strict statutory interpretation, while it is debatable if you can get federal agency for an ADA retaliation under the definition of "person," it does appear you can get a federal officer or informant in at least individual capacity, and the ADA's conflict preemption provision appears likely to partially repeal Patriot Act immunity provisions because, after all, there is no legitimate law enforcement purpose in unlawful retaliation for exercising protected disbaility rights. At least that has been my argument in my cases.

Been There Done That -- Even if you can get injunctive relief under 1983, you have to jump the Federal Courts Improvement Act hoops and that takes precious time. An ADA retaliation, particular with a nexus to a Title II ADA protected activity, begets monetary damages, as well as prospective injunctive relief. You can have your choice.

Medis -- "and the Senate placed a Reservation in its ratification of the CAT that said Articles 1-16 would not be self-executing. So, we do need to enable those provisions through additional laws."

This is the crux of why the Bush administration finds my lawsuit so unpopular and provides the motivation animus to abuse Patriot Act against my husband and I -- My Supreme Court Docket No. 05-7771 raises issues that the International Covenant on Civil and Political Rights, CAT, and Convention Against Genocide, though they have NSF (non-self-executing) tags, are enforceable through the Americans With Disabilities Act because that Act can serve as pre-existing federal legislation to implement those treaties, through the ADA's "incorporation" clause, 42 USC 12201(b)(4), ala an analogy to Filartega v. Pena-Irala and how the ATCA serves as preexisting legislation. The ADA's "incorporation" clause does not contain an exhaustive list.

In other words, if the Bush administration decides to base its taxt cuts for the wealthy on the starvation, homelessness, and denial of medical care to the disabled subjecting the disabled to a genocide by ensuring their inability to achieve the means of survival, it has been my position in my suit that I can bring the implementation of these treaties to bear through the ADA as preexisting implementing legislation. My viewpoint is not too popular, but hey, I'm disabled and I am not ready to meet my maker. Another thing, is I think you are confusing reservations with NSF tags, they are a bit different and have a bit different effect.

Been There Done That -- "Humble may be in law school but he is not absorbing anything remotely legal. 'Let's change the means until I get the ends I want' is not law. The ends, at least in this country, are -- DUE PROCESS, RULE OF LAW, SEPARATION OF POWERS, LIMITED GOVERNMENT, FUNDAMENTAL RIGHTS. You can't undo these because, as Humble fears, people might become muslim."

Thank you for summing up what I have been trying to say all along. I am not anti-government -- only anti-abolition of disability and vital Constitutional rights.
12.16.2005 3:51pm
Mary Katherine Day-Petrano (mail):
Smuvdee -- "People not planning a terrorist act will never and I mean never will have anyone show at their door to arrest them based on a conversation they have had."

Do you have proof of this? YOu see, that is the terrifying fear my husband and I have about the surveillance we believe to have been conducted on us just to prevent my Americans With Disabilities Act cases from going forward. I have a severe disability, so does my husband. So if we are just picked up and disappeared off the street by our government, no one will know where we are, we will have no access to a judicial hearing, our medical can be denied long enought to cause our deaths, and we have between us 5 innocent children who depende upon their parents.

Why should we live with this fear just for asking to enforce disability rights? Is there no limit to government power? If the government can justify its actions, why should there be any concern about a judicial hearing to review whether such actions are justified and legal?
12.16.2005 4:04pm
Mary Katherine Day-Petrano (mail):
And dans301, are you the arbiter of who is on the wrong side of the issue these days? That's pretty undemocratic. I think you forget people vote in this Country about what the "right" and "wrong" side of an issue is. This is not a totalitarian Country in which the Humble Law Student group view gets to force their way on the rest of the people who disagree. If enough people disagree and vote, their point of view will prevail. And, in a government with a Bill of Rights and civil rights, the minority has the right to protection against the tyranny of the majority.

On another aside, I am just wondering if our government takes the policy line that it can eliminate unpopular protected classes of people like the disabled by disappearing them under Patriot, in light of more and more international law protecting the human rights of this class, how are we going to fare in the international community of Nations? How can we maintain our credibility as a Nation in the international community? What happpens if the United States is seen as hypocritical on the issue of international law human rights enforcement in our own Country the next time we ask for help from the international community to assist us with another war? Just look at the debacle and condemnation by European Nations recently about the renditions and secret torture prisons.

I am not against legitimate law enforcement efforts against real, true terrorists like Mohammed Atta, not by any means. When 9-11 happened, I was living in California, and nearly everyone I knew quit going to work because they were afraid to cross the Golden Gate Bridge for fear a terrorist attack would occur to the bridge while people were on it. I, too, was afraid, and hopeful that the government was protecting us, my friends, my family, and myself.

I think the problem is the Patriot Act and this governmental spying surveillance has gotten out of hand precisely because it lacks adeequate safeguards against the abuse; in terms of an Americans With Disabilities Act retaliation challenge to the Patriot Act, the question would be whether the Patriot Act is narrowly tailored to serve a compelling interest and uses the least restrictive means. A retaliation by misusing the Patriot Act to retaliate against a Title II ADA civil rights plaintiff for bringing suit against the State Courts is subject to strict scrutiny (according to the Eleventh Circuit and maybe the Supreme Court) or at least intermediate scrutiny (according to the Supreme Court).

No one disputes the emergency provisions in Patriot are necessary to stop Mohammed Atta, but what is the problem with safeguards to prevent civil rights retaliation abuse against American citizens for engaging in protected activity?
12.16.2005 4:27pm
dans310 (mail):
Again with the attacks by Been There. The best rule of debate is to refrain from comments of a personal nature - "Wrap yourself in the Flag" and "Heroes of the White House" are exposing you as so anti Bush, it almost nullifies your argument. I will agree that there are times and circumstances at which your position warrants consideration, BUT THIS IS NOT ONE OF THOSE TIMES! You and those of your opinion are missing the bigger picture that the Administration obviously sees. It can be summed up by one quote from bin laden that I will paraphrase:
"WE WILL USE YOUR LAWS AND FREEDOMS AGAINST YOU TO BRING YOU DOWN". This threatens the very way of life that allows us to even discuss this issue.
If your response to this includes any garbage like "Bush lied" or "Government Police State conspiracy"
or any of the unprovable DNC talking points of late, then you lost your debate decisively.
12.16.2005 4:34pm
dans310 (mail):
Mary Katherine: I did not arbitrate what the right and the wrong side of the issue is for anyone but myself - just so happens that the voting patterns in this country lately are trending towards my philosophy. I force it on no one - unlike the unelected judges who could never get their views passed by a vote of the people.
12.16.2005 4:43pm
amn (mail):
I think dans is parroting everyone's favorite Bush supporter on this one.

"Honestly, I think we should just trust our president in every decision he makes and should just support that, you know, and be faithful in what happens."--Britney Spears

Being anti-Bush doesn't make Been There any more wrong than being anti-Democrat makes you right.
12.16.2005 5:06pm
Jimbino (mail):
We libertarians should just start passing around e-mail with good jokes and photos to acquaintances for forwarding to other acquaintances with words like "anthrax" "dirty bomb" and "bin laden" appended to the e-mail after a page or two of white space, where it won't be noticed, except by the NSA snoop software. This would throw a monkey wrench in continuing gummint attempts to whittle down our civil liberties.

Better yet, someone should just promulgate an Outlook Express clone that automatically cycles through a list of "terrorist" words, preferably in arabic, to append in that manner to every e-mail sent.

Anyhow, real terrorists know how to encrypt or use steganography, so it's mostly innocent folks who suffer from the current gummint aberration of "patriotism."
12.16.2005 5:08pm
markm (mail):
"Bottom line is if you are not a Terrorist what is the impact of all this?"

Investigators stumble onto much more data than is relevant to their investigation. Have you heard of J. Edgar Hoover? It's alleged that as head of the FBI for several decades, he used the FBI to accumulate blackmail material on many high officials, and then used that blackmail material to ensure he stayed in his job until he died. If the NSA is enabled to monitor phone calls without giving a reason and without oversite, they could do in a few years what it took Hoover decades to accomplish.

Or there just might be a venal under-supervised NSA employee somewhere busy recording international money transfers that he claims are possibly terrorism-related, but he's also collecting the account numbers and passwords to steal from bank accounts.
12.16.2005 5:14pm
jurisprude:

I will agree that there are times and circumstances at which your position warrants consideration, BUT THIS IS NOT ONE OF THOSE TIMES! You and those of your opinion are missing the bigger picture that the Administration obviously sees. It can be summed up by one quote from bin laden that I will paraphrase:
"WE WILL USE YOUR LAWS AND FREEDOMS AGAINST YOU TO BRING YOU DOWN". This threatens the very way of life that allows us to even discuss this issue.


Well, that sums it up for me. You're either with us or against us, and our laws and freedoms are obviously on Bin Laden's side. Let's take those suckers out.
12.16.2005 5:23pm
Cold Warrior:
Mary Katherine said, with extreme skepticism:


Smuvdee -- "People not planning a terrorist act will never and I mean never will have anyone show at their door to arrest them based on a conversation they have had."

And I agree with the skepticism. Surveillance could well uncover evidence of some non-terrorist type criminal activity, and under the loosened PATRIOT Act rules the fruits of a FISA surveillance could be used in a criminal proceeding.

Of course, we're not dealing with FISA warrants here. If we were, there wouldn't be a story. We're dealing with surveillance outside of FISA. And I can't see the Government attempting to use that information in a criminal proceeding.

But (continuing along my unpopular "both sides are right" agenda) that's not to say that a non-FISA/without a warrant surveillance will never result in a criminal prosecution. Information gleaned from such a surveillance may clue the Government in to criminal activity, and the Government may then use that information to investigate further.

But I return to my main point, as this thread reaches it's natural end (the end of the workweek): a warrantless surveillance may be reasonable and necessary when faced with imminent attack; it may not be reasonable and necessary after the threat has diminished in either time or degree. So someone has to draw the line. At some point, it is appropriate that the courts intervene. And they've exhibited remarkable (and I think appropriate) restraint so far.

But the truth is this: the ultimate word belongs with the voters, who may turn out a president who abuses his war powers.
12.16.2005 5:48pm
Neal Lang (mail):
To all those who don't think this is a big deal....what if the next "liberal" President decided the most important war was the war on guns and then used allowed a government agency to spy on citizens to collect lists of gun owners and dealers. I daresay all you citizens who believe this is no big deal would then be up in arms. The NRA would be apoplectic...not that that's a bad thing.

Of course we had a "liberal" President, and he used (abused) the FBI, the Justice Department, and the IRS to spy on and repress its "political enemies". Interestingly, some of the same Senators who were so apoplectic about our government "spying" on terrorists, have no problem voting to hide the findings of the Independent Counsel that investigated these abuses of the Clinton Administration. Right now the Senate is preparing to stop Independent Counsel David Barrett from making his findings report public - the 1st time that any Inpendent Counsel's Report has not been made public. Go figure!
12.16.2005 5:52pm
Mary Katherine Day-Petrano (mail):
dans301, the voting trends WERE trending towards your philosophy. Perhaps they will rebound in the next election if things keep on going the way they are.

The little benkownst fact is I am a Republican. I just can't agree with an administration that would so harm the ability to survive of the disabled to pass tax cuts for the wealthy by ensuring the starvation, sickness, and death coming to thousands of disabled American citizens. I have had an ongoing staph infection for more than 1 1/2 years and no access to health care to fix so simple a problem. I mean isn't this the President whose father was the Hero of the Americans With Disabilities Act? And wasn't this the President who got behind the New Freedom initiative? Tell me what possible reason there could be to cut estate taxes to fund for example the posh Polo estates of the superwealthy in Wellington, Florida on the backs of the silent genocide of disabled Americans? Weren't the graphic pictures out of New Orleans enough?

I have no problem with the President's War in Iraq so long as the disabled people are not denied the right to survive independently and with the economic self-sufficiency the ADA promises them, equality of opportunity to reap the fruits of a hard earned education, perhaps become a lawyer or a judge. I also don't disagree with the President's goal of catching real terrorists who would blow up places like the world trade center, or the Vice President's interest in keeping oil flowing for American's cars. You know I had a friend in college who was an Iraqi, his name was Jirryes, and he wanted freedom and was very afraid of Saddam, very afraid of going back to Iraq under Saddam's regime. My point is isn't there enough room in this world for both the freedom of the good Iraqis AND American's disabled citizens?

You see, instead of attacking disabled people who want to enforce disability rights, the Presidential administration should realize the unique abilities many disabled poeple could contribute and that accommodating disabilities and ensuring equality of opportunity is not a net financial loss proposition, in fact in most cases just the opposite. Instead of law school, I would have attended the Monteray Language Institute if I could have gotten financial aid to so so, as I had learned Arabic, Russian, and Spanish to complete an International Business undergraduate degree. Surely there are some valuable abilities I can contribute rather than punishing me for simply raising my rights as a disabled American for equal opportunity under the ADA. What do you think it is like for a law firm to tell you you are not abled to work as a law clerk, after you have passed a bar examination? Disabled people just want the same opportunities to be hard working Americans as anyone else. Disabled people should not be confused with the real enemies of the United States.

As far as "unelected judges who could never get their views passed by a vote of the people," insofar as I vigorously litigate for disability rights sometimes I have to agree with you that lack of understanding on the part of the judiciary can be frustrating; but on the other hand, I have to say I have encountered many good quality judges out there, and I think one needs to see a balance, what we call diversity in the judiciary. For example, when is there going to be the first autistic on the Supreme Court? I am not criticising any current judicial nominees in any way, in fact I really liked Judge Alito's thoughful decision in Doe v. County Centre. I am extremely impressed with Judge Kozinski on the Ninth Circuit Court of Appeals. Circuit judge William Pryor, Jr. won me over with his fairness and attention to good legal writing. Justice Janice Rogers Brown won me over with her opinion in the California Supreme Court case Ora Peatros. And at first I questioned Justice Roberts' commitment to protecting disability rights, I wanted to hear more, but I read some of his DC Circuit opinions and he is brilliant. And, also I have to confess Article III Groupie won me over when she/he published the one picture of Justice Roberts in the Confirmation hearings that was unforgettable to anyone who was ever asked a difficult question by an examining committee. What I have trouble with is when a judicial officer makes an arbitrary decision that does not contain a written statement of reasons articulated to meet Due Process to demonstrate the decision does not discriminate against a disability, or when necessary reasonable accommodations are ignored. What is the big deal about the inclusion of the disabled anyway? Even Harvard law students are voiciferous protestors when their accommodations are not met. Provide the disability accommodations, give a written statement of reasons, and move on.

I am also not anti-Bush, only very critical of abusing the Patriot Act to prevent equality of opportunity for the disabled and disability reasonable accommodation rights. I personally thought former Attorney General Ashcroft was a brilliant thinker, as I have read numerous of his cases, and having read many Texas Supreme Court bar admission cases, I thought Attorney General Alberto Gonzales would have made a good Supreme Court Justice. I just don't agree with retaliation against a disabled person for enforcing important civil and Constitutional rights the Americans With Disabilities Act was meant to protect. I don't want to see the return to the Medieval ages of abuse, cruelty, and predators toward the disabled. Did anyone here read the Solicitor General's briefs in Tennessee v. Lane and Medical Bd. of California v. Hason detailing the cruelty toward the disabled? Visions of Abu Ghraib. How can anyone want that?

As far as Bin Laden "using our laws and freedoms against us to bring our Country down," well, he masterminded the blowing up of some 300 innocent people and the destruction of the World trade center -- that is the real enemy, the real terrorist and the Bush administration IS doing its job to go after someone who would do that to keep us safe.

As I said, I just have a problem when disabled people are targeted for genocidal policies to afford tax cuts for the wealthy, and then disabled they complain, discovering they have become the target of Patriot Act abuse. When a person is disabled and forced to look death in the eye at the height of Hurricane force winds because a vessel was recklessly tied to ensure it would demolish that person's vessel with the person on board, and someone puts a 220 volt line under that person's dock the morning after the person is discovered to still be living, and this has a not wholly unrelated causal nexus to a disabity rights suit the disabled person brought forward to gain disability access to the person's driver's license and bar admission, then I would say that person has standing to complain.

I am not advocating that the Bush administration throw the baby out with the bath water, only that the cause of the disability violations be fixed and remedied, like what President Bush did in the aftermath of Katrina, stepped up to plate, rolled up his sleeves, and bravely brought a remedy and justice to the problem where before there was none. where is the Bush adminsitration to support disability rights in my Supreme Court case? Where were they for the days immediately after Katrina? All I am saying is fix the problem, and know the difference between protecting disability rights of American citizens vs. the real enemies of America.

How about instead of destroying an entire class of the disabled, the Bush administration were to enforce the ADA, turn disabled people into productive taxpayers by enforcing reasonable accommodations rights and disability access, and that would pay for the tax cuts as well as the war. Then there would be more funds to finance going after Bin Laden and other real enemies of the Nation. Is that such a novel idea?
12.16.2005 6:45pm
Humble Law Student:
To get back into this. Please someone show me where I advocated getting rid of any substantial amount of our rights? I have never advocating using unconstitional methods for rolling back our rights. Only in your delusions have I ever said such a thing. Please quote me! without trying to put words into my mouth as you all seem so fond of doing.

Please someone!

All I have said is that there is a tension at times between process and purpose. At times, the process must bend to the purpose. I fully recognize that tyranys can use that as a justification for the removal of all rights, but I am not advocating that! Despite all of your completely ridiculous hysterics.

I am not advocating using extra-constitutional means of changing the process in favor of purpose, nor have I ever. If the current administrations polichy regarding the wiretaps etc, is unconstitutional then so be it, make them stop. However, I haven't seen much proof that effect. Basically, it is people running around screaming that wiretaps today, facist totalitarian state tomorrow, which is utterly ridiculous.

I have not engaged in ad hominen attacks (the closest was my sarcastic remark with spell, which I do apologize for). I find it amusing how so many of you just can't deal with someone who has a contrarian viewpoint - let alone deal with it on its merits.

Here a few questions to blow open your whole charade.

If is only about the process and the process should never bend to purpose, then how did the process come about in the first place? We suddenly created a perfect system and then said "Voila" its perfect, never change it? I didn't realize our current system of laws were are part of the 6 days of creation than many of you probably deny ever happened.

Also, if the process must never bend to purpose, then why have "interpretations" of the Constitution that change? We didn't have nearly the same due process rights in the 1800s. How come the "perfect" process wasn't then? Why is it now?

You can't answer those questions, because they illuminate how bereft of reason your arguement.
12.16.2005 6:49pm
Humble Law Student:
sorry for the typos. I guess it indicates my lack of intelligence. As a previous poster said, I should bow to my "betters."

lol
12.16.2005 6:52pm
Neal Lang (mail):
So, as I understand it, the 2001 AUMF must be taken to have implicitly repealed or amended these provisions, because otherwise the NSA surveillance without FISA warrants would be unauthorized by statute, the NSA officers conducting the surveillance would be committing criminal acts, and the safe harbor provisions would not apply.

Perhaps the White House was following the precedence of the work pioneered during the Clinton Administration by "Able Danger". Of course, despite the intreptation of the likes of Jamie Gorlick - the Constitution of the United States of America is not a "suicide pact".
4. FISA Modifications. The USA Patriot Act, and subsequent related legislation, made several amendments to FISA. These include what is known as “roving authority;” extensions of several prescribed time periods; and a modification of the requirement that the surveillance be conducted for foreign intelligence purposes. From: CODE 17 NEWS BULLETIN 03-03 – ANNOUNCEMENT OF NEW CODE 17 DIVISION DIRECTOR AND OVERVIEW OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA) AND THE CHANGES IMPLEMENTED BY THE USA PATRIOT ACT

Additionally:
A democracy can allow its leaders one fatal mistake -- and that's what 9/11 looks like to many observers -- but Americans will not forgive a second one. A succession of large-scale attacks would pull at the already fragile tissue of trust that binds us to our leadership and destroy the trust we have in one another. From: Lesser Evils

One minute the Democrats are making hay over Administration failures to incorporate every "jot and tittle" of the 9/11 Commission Reports recommendations - now they are in "high dudgeon" over intelligence operations that seem to have been effective enough to foil any further terrorist attacks on US soil. Talk about trying to have it both ways.
12.16.2005 6:54pm
Wince and Nod (mail) (www):
I'm tossing this out as a Devil's Advocate. We accept 50,000 deaths every year so we can enjoy the convenience of the automobile. I love my car and I don't want to start using public transportation. In an older day, I would have loved my horse, and not wanted to start using public transportation then, either.

So what's wrong with a more cumbersome phone tap procedure that protects our rights at the cost of a few thousand civilian deaths every year?

Well, I think I'll answer my own question. Banning cars would dramatically hurt just about everyone. But who is really hurt when the NSA spys on us? Not very many people. And that sums up the political problem. Everyone can immediately see that banning cars immediately hurts them, and the NSA's activities most assuredly do not. The chances of the NSA causing problems for me are very slim, folks.

Instead, I think everyone would be much better served by developing a system of monitoring and auditing the NSA which is fast, thorough and effective. Such a system should allow the NSA, whenever a 'hot pursuit' develops to tap a phone almost immmediately, yet record the transaction for later review. Those records should be regularly auditted. If a pattern shows up where individuals repeatedly make mistakes, retrain them or hire people with the skills to avoid those mistakes. And if a pattern shows up where individuals are abusing their power, those individuals should be prosecuted, and, if convicted, punished.

We keep acting like this is a binary problem, with only two solutions, but what we really need here is some creative technical talent.

Yours,
Wince
12.16.2005 7:34pm
Humble Law Student:
Wince,

Very nicely stated.
12.16.2005 7:39pm
Neal Lang (mail):
Have you heard of J. Edgar Hoover? It's alleged that as head of the FBI for several decades, he used the FBI to accumulate blackmail material on many high officials, and then used that blackmail material to ensure he stayed in his job until he died.

Have you heard of Craig Livingstone? He actually "used the FBI to accumulate blackmail material on many high officials". It WAS PROVEN that he accumulated in the basement of the Clinton White House the FBI Security Clearance Files, including raw field data, on over 900 potential political opponents of the Clintons. There was no reason for him to have this potential "blackmail material" except "to ensure" that his benefactor, Bill Clinton, "stayed in his job". To this day no one knows who actually hired Mr. Livingstone to run his "black bag" operation for the Clintons - and it would appear that no one really cares. Go figure!
12.16.2005 7:58pm
ADB:
Wince,

You have made two illegitimate assumptions.

"I think everyone would be much better served by developing a system of monitoring and auditing the NSA which is fast, thorough and effective."
(1) Your assumption here is that the current legal system of monitoring the NSA is not fast, thorough, nor effective. Although I'm not particularly familiar with FISA, it appears that the current procedure is to go get a warrant from a judge or if an emergency develops, to conduct the monitoring but then notify the judge afterwards. That, on its face, doesn't appear to be slow, cumbersome, nor ineffective. This administration circumvented these procedures as a matter of convenience. And convenience is never a good reason to violate the 4th Amendment Due Process rights of any individual person.

You're looking at this problem as if the system needs more efficient internal controls or lacks them. Instead, you should be looking at it as if an efficient set of internal controls is already in place, but an officer/CEO decided to get around them, because he didn't like them or thought they were inconvenient.
12.16.2005 8:24pm
ADB:
ack, meant to say one illegitimate assumption.
12.16.2005 8:25pm
ADB:
Wince,
Strike that, there is a second assumption that is illegitimate:
"So what's wrong with a more cumbersome phone tap procedure that protects our rights at the cost of a few thousand civilian deaths every year?"

You assume that a less cumbersome phone tap procedure would save a few thousand civilian deaths every year or that the current FISA procedure will cost a few thousand civilian deaths every year. This assumption is wrong because there is no evidence out there that shows that the FISA procedures costs a few thousand civilian deaths every year. Yes, we lost lives on 9/11. That doesn't mean that these new procedures would have prevented 9/11, nor does it mean that the old procedures were the proximate cause of 9/11.
12.16.2005 8:35pm
Neal Lang (mail):
That said, I do think this Administration tends to side against congressional regulation of the "war on terror" (and I fear that the lesson they learned from the PATRIOT Act is to never even try again).

Let's see:
We the People of the United States, in Order to .... insure domestic Tranquility, provide for the common defence, ... do ordain and establish this Constitution for the United States of America.

[Section 1.] The executive Power shall be vested in a President of the United States of America.

[Section 2.] The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, ... .

I miss the part where Congress is the "co-Commander-in-Chief". Wasn't that one of the reasons the Founders thought the Articles of Confederation were inadequent to "providing for the common defence", and so opted for the Constitution?
12.16.2005 8:38pm
Orangutan (mail):

Well, I think I'll answer my own question. Banning cars would dramatically hurt just about everyone. But who is really hurt when the NSA spys on us? Not very many people.


Asking how many people are actually affected seems like the wrong question. I see it more like the government saying, "Sure, we could abuse this power, but trust us, we won't. Look, we're not spying on you anyway, it's just those other people, so go about your business. There's nothing to see here."
That flies in the face of the checks and balances doctrine that founded this country. Someone or something must have oversight. "Trust me " is not good enough.

I've got a car analogy too. Instead of banning cars because of all the accidents, what if the government mandated that everyone had to buy an armor-plated tank? All of us have to buy an $900,000 indestructable humvee so that if we happen to get in an accident we'll be safe.

That's laughable. Yet it seems to be precisely what the government is doing with Homeland Security. Now, in the wake of the NSA story, if you call your friend in Canada, you have to simply assume someone is listening in, but you put up with it because you're safe. When you fly from Albany to Buffalo you have to take your shoes and belt off. If you have a one-way ticket plan on getting taken aside and having your wallet or purse dumped out on a table. Every national "treasure" now has four-foot concrete barriers surrounding them. If you spill non-dairy creamer at work, guys in hazmat suits have to come to clean it up. There are snipers pointing guns at people at the Super Bowl. You can't drive your camper over the Hoover Dam. Library books are aggragated and the librarians will go to jail if they tell anybody. American citizens are held for years without being charged with a crime. Blog posting are sent directly to Cheney's desk. See what I'm saying?

We've all bought the tank. We bought the shiniest, toughest tank halliburton could bolt together- and only now are we starting to figure it out. Some of us anyway.

Terrorism is bad, but it's just a grain of sand on Problem Beach.
12.16.2005 8:42pm
Neal Lang (mail):
This assumption is wrong because there is no evidence out there that shows that the FISA procedures costs a few thousand civilian deaths every year. Yes, we lost lives on 9/11. That doesn't mean that these new procedures would have prevented 9/11, nor does it mean that the old procedures were the proximate cause of 9/11.


I suggest you read the findings as to the causes of the intelligence failures in the 9/11 Commission's Report. The FISA is a result of the lawyers taking over the National Security of the US.
12.16.2005 8:52pm
subpatre (mail):
Though I think Humble Law Student's thesis of process vs. purpose can be taken too far; it's equally obvious that many of his critics care only about process.

Several comments quite literally take the view that --if the USA is attacked and invaded by a foreign nation-- warrants are required for each and every interception of enemy communication, since it would all be 'domestic spying'. LOL

I question whether any of the critics can articulate a practical means for a wiretap warrant in an age without wires: Where (routinely) the person's identity and location may or may not be known, on one end the phones or computers probably aren't the same from call to call.

Of note in the referenced NYT article that cites --as examples of FISA violation-- calls with at least one foreign termination. Since this is legal, the violation must be content; the Times' informants are claiming the surveillance is for "domestic purposes".

Is "plotting by US citizens to blow up a building a domestic matter?" IMO the answer is 'yes'. Is it still, once the plot involves a foreign connection though; indicating coordination, command, or assent? Simplified: Is domestic terrorism with foreign input a criminal matter or a national security matter?
12.16.2005 9:08pm
Josh Jasper (mail):
On the conservative side of things, pretty much anyone associated with a millitia can be considered to have dealings with terrorists. That includes some rather prominent Republicans.

Since all of you trust Bush so blindly, I can't help but wonder if you'd trust, say, Hillary Clinton with these legal powers Bush keeps grabbing.
12.16.2005 9:29pm
Justin (mail):
Oranguntang's response limits my response to Humble because he basically made my point for me. As mentioned before, reason and history explain why process protects substance. If we were facing an invasion from a major military, I don't think those people who are complaining now about the Bush administration's behavior now would complain about the same actions then. BUT. WE'RE. NOT.

Though 9/11 was tragic and "changed the way we think about everything" (as was Hurricane Katrina, though we're not allowed to let that change the way we think about anything from the environment to economic inequality to urban planning to federalism, lest we engage in class warfare), it was a drop of sand in the beach of problems. If we overreacted to Russia in this way, we would probably have all died in thermonuclear masterbation. And maybe THESE POLICIES are fine. But Humble, notice there are people who agree with you who dont feel personally attacked. The problem with your response is that they explain too much, go too far, fail to consider, respect, or apply the counterarguments. It's what makes you a bad law student, as I mentioned before. When you so half-hazardly reject the serious problems that these issues derive, and fail to back those rejections with explanations that are anything but either too clever by half or derogatory and nonresponsive, people then become dereogatory and nonresponsive bacak.
12.16.2005 10:21pm
Humble Law Student:
Justin,

Fair enough response. However, if you look at the progression of the posts, you will see that once I had dared to suggest that maybe, just maybe, a few rights can be given up without the whole world falling apart - people started jumping down my throat.

I completely recognize your point about my explanation potentially going to far. However, it only happened precisely because those who argued against me refused to argue with what I had actually said. They constantly made false inferences. Notice they used relatively very little quoting. It was the typical knee-jerk leftish response.

Also, I have been perfectly willing to address REAL concerns. But when people just argue that today, one small right, tomorrow we are some facist state (or something to that effect) then there isn't much to discuss.

If you would like to discuss the practical implications of process vs. purpose in a reasonable manner, I would love to oblige.
12.16.2005 10:35pm
David J Swift (mail) (www):
Boy, there's a lot of "I'd rather feel safe than be protected from government intrusion."

This does not make me feel safe.
12.16.2005 10:40pm
Humble Law Student:
Josh,

Very reasonable point. What I have found very interesting is that many of my friends who grew up in extremely conservative Christian families learned all about the "end times" and the one world government etc. It's rather curious because the whole message from stories is how through technology and the UN blah blah, the anti-Christ will emerge. They will be able to track down and eliminate Christians etc. However, they are some of the biggest cheerleaders that I know of the administrations agenda (aside from me of course!).

I would think they would wonder about it be used against them by the anti-Christ... but it never seems to bother them.
12.16.2005 10:41pm
Humble Law Student:
EDIT: He will be able to track down ...
12.16.2005 10:42pm
Smithy (mail):
Let's be clear: most of want the government to essentially spy on anti-war protesters, ACLU extremists, and radical secularists. These people are every bit the threat that terrorists are. In some ways they may be worse, because they are more insidious. They are chipping away at the American dream, using not only protests and propaganda, but also our court system. I want the FBI to infiltrate these groups and keep track of what they are doing, for what they are doing is really quite threatening, more threatening than many on the moderate left are willing to believe.
12.17.2005 12:14am
Justin (mail):
"Let's be clear: most of want the government to essentially spy on anti-war protesters, ACLU extremists, and radical secularists. These people are every bit the threat that terrorists are."

Okay, as much as I'm loathe to admit it, Smithy is obviously a liberal troll. Smithy, we can win this argument without showing the other side as beyond the pale.
12.17.2005 12:26am
Smithy (mail):
Justin, you can call me a troll if you like. I've been called worse. But please don't call me a liberal.
12.17.2005 1:18am
Eric Blair (mail) (www):
You might be interested in a report I did a few years ago
regarding the NSA spying on us domestically.

It includes a treatment of how they perform Internet email
monitoring, by way of my describing how I monitored the
emails of more than 7000 employees on Wall Street.

Cryptography_Manifesto

Somehow I've also managed to include a description of how
life begins from lifeless atoms.

Can you say, 'bloviate'? Well, it was my first polemic.
12.17.2005 1:42am
Art (mail):
You have all missed the point. Have you ever crossed the US border? Do you think that you have 4th amendment rights there? Ever send an email with technical or business information to a fellow employee at your own company in a different country? Any real or intellectual good that crosses the border, including your conversation with Auntie Julie in Spain are inspectable by the federal government to insure compliance with the law. For the sake of FISA I hope that the taps into the circuits are made in international waters, but again, anything flowing acrossed the border can be inspected at any time with your consent or knowledge. No right to probable cause or a search warrent.

If NSA was involved in monitoring communications within the US I would be concerned. Communications with foreign parties is fair game under any reading of the law regarding borders, foreign affairs, etc.
12.17.2005 2:04am
Justin (mail):
I am absolutely positive that I do have rights in foreign territory under the 4th amendment from the US government. The exigency of borders themselves limit (but do not destroy) those rights, but they most certainly exist.
12.17.2005 2:47am
Apodaca:
One of the most depressing aspects of this episode is the further evidence that some people — specifically, the President and those who espouse this "plenary powers" doctrine — have come completely unmoored from the Constitution they purport to construe strictly.

Even a cursory reading makes clear that the Framers meant the Congress to make the laws, and the Executive to, well, faithfully execute those laws. Under the Yoo Doctrine, by contrast, we have an essentially imperial presidency empowered to disregard, on its own initiative, not only federal statutes but even the Bill of Rights.

I do not believe that the Constitution is suicide pact. It is clear to me beyond peradventure, however, that reading it to allow the Executive to arrogate practically unlimited power to itself is an indefensible attack on our own body politic.
12.17.2005 9:20am
subpatre (mail):
Justin - You may, in some etheral way, be correct. How are those "rights in foreign territory" protected in practice?

Would starting each conversation with "This is Justin Doe, an American citizen speaking...." be adequate? Starting calls with the citizen's SS number and birthdate?

Securing privacy by excluding from listening to any US-purchased phone? What technologic solution --besides implanted RFID chips-- has a chance of working?

You may be "absolutely positive that you do have rights in foreign territory"; I am absolutely positive you can't articulate realistic prior restraint needed to protect those rights.
12.17.2005 9:23am
Hugh59 (mail) (www):
Ok, the issues, as I seem them, are as follows:

(1) Is the NSA monitoring "right" or "wrong" ("good" or "bad")?
(2) Is the monitoring moral or immoral?
(3) Is the monitoring ethical or unethical?
(4) Is the monitoring legal or illegal
(5) Is the monitoring constitutional or unconstitutional

The answers to the first two questions are highly subjective; the answers to the remaining three questions are somewhat more objective.

I think we all need to recognize that we do not know the specific types of communications that were monitored. We don't know how they were selected. We don't know the procedures used to determine which communications would be monitored.

Not all warrantless searches unreasonable; not all warrantless searches are illegal or unconstitutional. Until we know what the procedures were, we really can't answer the five questions above.
12.17.2005 9:28am
Medis:
Neal,

As an aside, this is a non-partisan issue for me. As I noted above, the problem is one of human nature, not political ideology. And in practice, it was abuses during both the Johnson and Nixon Administrations that led to FISA in the first place.

Anyway, apparently you did miss the relevant sections of the Constitution. They were in Article 1, Section 8:

"The Congress shall have power ...

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

...

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

So, Congress is in fact tasked by the Constitution to declare war, to provide regulations to govern the armed forces of the United States, and to provide general laws of war regulating our conduct of war. And as I related above, no one faithfully interpreting the President's war powers can do so without acknowledging these other provisions of the Constitution.

And as you noted yourself, even before he is Commander in Chief, the President is the Executor of the Laws. His duties as Commander in Chief do not somehow trump his duties as Executor of the Laws ... rather, the President is constitutionally bound to fulfill his duties as Commander in Chief in accordance with his duty to faithfully execute the laws passed by Congress. And once again, Congress is tasked with providing regulations for our armed forces and for our conduct in war. So, the President is bound to faithfully execute such laws even as he acts as Commander in Chief.

As an aside, I note that one of the first things George Washington did when he was appointed commander of the Continental Army was ask for the Continental Congress to provide Articles of War based on the British Articles of War (which in turn were based on Roman Articles of War). He believed that such regulations gave the British (and the Romans before them) an advantage in conducting war, and he wanted the same advantage for his forces.

He actually later complained about the Articles of War passed by the Continental Congress, citing various insufficiencies. At that point, however, he did not decide to simply ignore Congress and make his own rules. Instead, he went back to the Continental Congress and asked them to pass new, better, Articles of War.

Finally, as the first President (and thus the first Commander in Chief), Washington once again asked the First Congress to pass a law adopting the (new) Articles of War that had regulated his forces in the Revolutionary War. Apparently, this person who had commanded our armed forces in what is still the most important war in the history of our country, and in many respects the war which had become the most desperate at times, nonetheless thought, based on his own experience, that Congress should be providing rules to regulate the conduct of the armed forces.

Just something to think about.
12.17.2005 9:42am
Apodaca:
Subpatre, you are indulging -- deliberately or not -- in the same confusion Michelle Malkin is peddling. The NSA is not barred from engaging in any surveillance that might intercept the private communications of "U.S. persons" (basically, persons within the U.S. and citizens anywhere). However, they are not -- make that "were not until recently" -- allowed to specifically target the communications of U.S. persons, especially those of U.S. citizens who are themselves within the territory of the United States.

Thus, your attempted reductio ad absurdum -- mockingly suggesting that all callers must expressly self-identify as US citizens in order for NSA to respect existing legal restraints on it -- is a vapid strawman. What we are discussing is the deliberate targeting of persons known to be within the U.S. (and thus covered by FISA and the Fourth Amendment), and the interception of their communications without any form of court supervision.
12.17.2005 9:48am
Jam (mail):
For those of you who do not mind being monitored by the government wholesale, why don't you add your name to a list (in a database) granting permission to the government to do so, for any purpose deemed needfull.

For the rest of us, get a damned search warrant and keep us off any lists.
12.17.2005 10:04am
Josh Jasper (mail):
Humble Law Student: It seems like you're ducking the question a bit. Do you feel comfortable with someone like Hillary Clinton having all of the powers Bush wants? You're a big cheeleader for the admnistration, but unless you're totaly delusional (or plan to kill or imprison us all), there will come a time when the pendulum swings towards liberals being in charge.

It seems to me that you're cheerleading for Bush to have these powers, but have no response to the idea that Clinton might have them. She's supposed to be this great baby killing, man castrating demon of the left, correct? She's the worst person ever, right?

If you're cheering for Bush being able to strike down the constitution at a whim because "there's a war on", what would your reaction be for Hillary having the same capability as Bush?
12.17.2005 10:45am
Justin (mail):
Not all rights require prior restraint, or even remedies, to be effective.
12.17.2005 10:47am
amn (mail):
Here's the point I haven't heard discussed: if the administration felt that there ability to fight terrorism was limited by FISA, why didn't they take their problems to Congress and change the law. After 9/11 the Congress would have given the President anything he wanted and FISA changes could easily have been built into the USA PATRIOT Act. It's the secret change of rights that worries me.
12.17.2005 11:25am
Medis:
amn,

And they actually did just that--the PATRIOT Act modified parts of FISA. So, the claim in the NYT article (that they didn't seek Congressional authorization for this particular program because of "political risk") seems plausible.
12.17.2005 12:44pm
subpatre (mail):
The NSA is not barred from engaging in any surveillance that might intercept the private communications of "U.S. persons" (basically, persons within the U.S. and citizens anywhere). However, they are not -- make that "were not until recently" -- allowed to specifically target the communications of U.S. persons, especially those of U.S. citizens who are themselves within the territory of the United States.

Simply untrue, but that's what you get for reading only the body and not the definitions. The codes written with loopholes big enough to push oil tankers through. You're describing (possibly) voluntary policy, not Code restrictions.

Fr'instance:
(e) “Foreign intelligence information” means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
WHERE
(b) “Agent of a foreign power” means—
(2) any person who—
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
WHERE
(a) “Foreign power” means—
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons

The result is not allowing surveillance of anyone, but of anyone --US citizens included-- that assists in giving information or assistance to persons associated with a terrorist group.

Nonetheless, your "might" and "specifically target" simply aren't found.
12.17.2005 12:59pm
subpatre (mail):
There's a disturbing hypocrisy rampant in this thread, multiple levels of layered hypocrisy.

On the one hand there's the current subject: The government has previously been allowed to surreptitiously listen to one side of US-to-foreign conversations when the subject is national security. This has allegedly been expanded to include listening to the conversation, providing that one termination is foreign (as before) and the subject is still national security.

To start, phone circuits always have both sides; anyone who's ever used a phone knows they can hear both sides. End A will carry attenuated voice B and visa-versa. To transcribe just voice B, end A must be subtracted from end B; meaning that end A must be recorded, even if only temporarily. In the real world, the entire conversation has to be recorded.

Can critics of this 'new' policy justify it in light of Boehner v McDermott or Bartnicki v. Vopper? Although the parties doing the actual recording may (?) be held somewhat liable, the consensus appears to be that accessories after the fact, users of the information, can't be.

The rulings in these cases cite the "overriding interest" of US citizens, overriding privacy rights and overriding legislation. I find it hard to swallow that teachers' salaries are of greater importance to the public interest than terrorist plotting.

At amusing odds to this thread are those Justices who oppose exceptions for eavesdropping:

"Surely "the interest in individual privacy," ante, at 2, at its narrowest must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations." --Rehnquist, Scalia and Thomas, dissenting


In contrast to privacy advocates on this thread is the deafening silence on the proximate cause of Cory Mayes' pending execution; an unknown source. The only shred of knowledge existing about the basis of government action is that it was surreptitious surveillance of an American citizen's home.

In Mayes, government action was authorized armed invasion of the home, warranted by the routine acceptance of anonymous surveillance. This is apparently mainstream American jurisprudence.
12.17.2005 1:11pm
gr (www):
Humble Law Student: "I study law because I don't want to trust my country to people like you."

And we know what you like to do with the people you don't trust. Better to err against them then against you eh?
12.17.2005 2:16pm
Mary Katherine Day-Petrano (mail):
Humble Law Student, I wouldn't worry so much about your typos or intelligence level or even ad hominem attacks on everyone who happens to disagree with you. But honestly, in light of your disability slurs "Only in your delusions" &"your completely ridiculous hysterics" might I make the suggestion you read very carefully 42 U.S.C. Sec. 12203 and thoughtfully consider your response to blogging argument from an autistic, learning disabled person protected by the ADA who is engaging in protected activity of discussion of disabity rights as eroded by the Patriot Act. Are you really a law student? Have you taken professional responsibility yet? Don't you think resorting to disability slurs as the means to mock and ridicule the disabled ("the ends justifies the means") to prevail with your position, with which predictably numerous people disagree, is extremely unethical? How about you manage to carry on your argument and discussion without personal disability slur attacks on disabled people who are trying to have a reasonable discussion of a major issue of National importance? I don't know about the state you are in, but in Florida, a bar member can be subject to discipline for disablity discrimination. See, Florida Bar Rule, 4-8.4(d). Why can't we just keep personal attacks on protected status based on a person's race, gender, alienage, national origin, and disability characteristics out of the discussion? Is civility too much to ask?
12.17.2005 2:31pm
Wormhole:
Josh Jasper,
I don't see how any of this has to do with who's President. It's a question of whether the President violated his constitutional powers, regardless of whether it's Bush or Clinton or whoever. Who the President is doesn't affect, or at least shouldn't affect, anybody's view regarding this.
In my opinion, and I'm no constitutional scholar, the President has certain powers in times of war and Bush is exercising those powers. Whether or not he overstepped constitutional bounds or not, I'm not sure as of now. But I would have to agree with Humble's points, and further point out that the Executive Branch of the government is charged with the protection of national security. And the President does have substantial discretion in the exercise of those powers as held by the Supreme Court. What is the extent of those powers? That was one of the issues in Hamdi v. Rumsfeld, which I recommend you read, including all the dissenting opinions. Note especially Justice Thomas' dissent (Humble, you'll like that one). Of course, read all of them if you have time to see all the counter-arguments.

Constitutional arguments aside, I am of the opinion that an organization with the sole purpose of protecting national security can listen in on our phone conversations abroad as much as they want as long as it helps protect our citizens. I may be going out on a limb here, but dead citizens, in retrospect, would probably trade in their right to private telephone conversations for their right to be alive.
12.17.2005 3:07pm
Scott Matheson:
Many of the comments in favour of this surveillance ignore two important facts:
1) This power has been consistently abused by the executive and by the agencies involved. This has become so ubiquitous, and so well-documented, that I probably do not even need to mention examples, but you could read about the FBI Mark Felt-led black-bag operations.
2) There is scant evidence that such surveillance succeeds in any of its stated goals. Past experience with general curtailing of civil liberties reveals mostly failures: Japanese internment (mentioned above) was admitted by the FBI to have very little security value.
3) The tendency to rely too much on signals intelligence has been widely cited as a major fault of US intelligence gathering. The growing global discontent with the United States makes the recruitment of Human Intelligence more difficult.
4) As other blog commentators have noted, the use of Executive Order to repeal or circumvent statute is illegal, and sets dangerous precedent. The argument, apparently advanced by Yoo, that the AUMF or PATRIOT acts grant the executive this new authority are facetious-- granting the ability to "successfully wage war" cannot, in that one vague phrase, delete a key separation of power.
12.17.2005 3:21pm
Scott Matheson:
Whoops. That's four points, not two.
12.17.2005 3:22pm
Neal Lang (mail):
Where is the clause found in the Constituion tasking the Congress the power of "regulating our conduct of war"? The operative Article, Section, and Clause alludes me, so kindly point it out.
Apparently, this person who had commanded our armed forces in what is still the most important war in the history of our country, and in many respects the war which had become the most desperate at times, nonetheless thought, based on his own experience, that Congress should be providing rules to regulate the conduct of the armed forces.

While the Congress has the authority to provide laws having to do with "regulating" the US Military, including the Militia, they have no authority to regulate the execution of the "war on terror". To wit:
Article I. [Section 8.]The Congress shall have Power To ... To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

President George Wahington know this when he requested that Congress pass the laws necessary to "regulate" the military - these laws became the Uniform Code of Military Justice, and other laws governing ranks, pay rates, retirements, pentions, appropriations and specifications for equipment and supplies, training manuals, etc. Washington would never request that Congress usurp his authority as "Commander-in-Chief to "regulate" how the Military prosecutes a War. So, when as President, Washington sent a military expediation under the command of Robert E. Lee's father, Lighthorse Harry Lee, to put down the Whiskey Rebellion in Western Pennsylvania - he didn't rely on Congress to instruct him how to deploy these troops.

As for our War of Independence, Washington, as General of the Continental Army, experienced first hand the effects of prosecuting a war by committee - the Continental Congress. That was one reason why Washington was one of the greatest backers of the Constitutional Convention to correct the short-comings in the Articles of Confederation in this important area. Note the difference of the similar Article in the Articles of Confederation regarding the Military:
The United States in Congress assembled shall also have the sole and exclusive right and power of ...making rules for the government and regulation of the said land and naval forces, and directing their operations. From: Article IX Articles of Confederation

"Regulating the conduct of war" is "directing operations" of the Military - phrase the Framers consciously excluded from Congress' powers in the Constitution.

Please note how Joseph Story viewed the President's Commander-in-Chief Powers and Duties in his seminal study of the Constituion of the United States of America:
340 CONSTITUTION OF THE U. STATES. [BOOK III.

CHAPTER XXXVII.

EXECUTIVE --POWERS AND DUTIES.

§ 1483. Having thus considered the manner, in which the executive department is organized, the next inquiry is, as to the powers, with which it is entrusted. These, and the.corresponding duties, are enumerated in the second and third sections of the second article of the constitution.

§ 1484. The first clause of the second section is, "The President shall be commander-in-chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States.1 He may require the opinion in writing of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices. And he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment."

§ 1485. The command and application of the public force, to execute the laws, to maintain peace, and to resist foreign invasion, are powers so obviously of an executive nature, and require the exercise of qualities so peculiarly adapted to this department, that a well-organized government can scarcely exist, when they are taken away from it.2

1 See Journal of Convention, 225, 295, 362, 383.
2 Kent's Comm. Lect. 13, p. 264; 3 Elliot's Deb. 103.

Of all the cases and concerns of government, the direction of war most peculiarly demands those qualities, which distinguish the exercise of power by a single hand.1 Unity of plan, promptitude, activity, and decision, are indispensable to success; and these can scarcely exist, except when a single magistrate is entrusted exclusively with the power. Even the coupling of the authority of an executive council with him, in the exercise of such powers, enfeebles the system, divides the responsibility, and not unfrequently defeats every energetic measure. Timidity, indecision, obstinacy, and pride of opinion, must mingle in all such councils, and infuse a torpor and sluggishness, destructive of all military operations. Indeed, there would seem to be little reason to enforce the propriety of giving this power to the executive department, (whatever may be its actual organization,) since it is in exact coincidence with the provisions of our state constitutions; and therefore seems to be universally deemed safe, if not vital to the system.

§ 1486. Yet the clause did not wholly escape animadversion in the state conventions. The propriety of admitting the president to be commander-in-chief, so far as to give orders, and have a general superintendency, was admitted. But it was urged, that it would be dangerous to let him command in person without any restraint, as he might make a bad use of it. The consent of both houses of congress ought, therefore, to be required, before he should take the actual command.2

1 The Federalist, No 74; 3 Elliot's Debates, 103.
2 Elliot's Debates, 365. See also 3 Elliot's Debates, 108.

The answer then given was, that though the president might, there was no necessity, that he should, take the command in person; and there was no probability, that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents.1 But if his assuming the actual command depended upon the assent of congress, what was to be done, when an invasion, or insurrection took place during the recess of congress? Besides; the very power of restraint might be so employed, as to cripple the executive department, when filled by a man of extraordinary military genius. The power of the president, too, might well be deemed safe; since he could not, of himself, declare war, raise armies, or call forth the militia, or appropriate money for the purpose; for these powers all belonged to congress.2 in Great Britain, the king is not only commander-in-chief of the army, and navy, and militia, but he can declare war; and, in time of war, can raise. armies and navies, and call forth the militia of his own mere will.3 So, that (to use the words of Mr. Justice Blackstone) the sole supreme government and command of the militia within all his majesty's realms and dominions, and of all forces by sea and land, and of all forts and places of strength, ever was and is the undoubted right of his majesty; and both houses or either house of parliament cannot, nor ought to pretend to the same.4 The only power of check by parliament is, the refusal of supplies; and this is found to be abundantly sufficient to protect the nation against any war against the sense of the nation, or any serious abuse of the power in modern times.5

1 2 Elliot's Debates, 366.
2 3 Elliot's Debates, 103.
3 3 Elliot's Debates, 103; 1 Black. Comm. 262, 408 to 421.
4 1 Black. Comm. 262, 263.
5 During the war with Great Britain in 1812, it was questioned, whether the president could delegate his right to command the militia, by authorizing another officer to command them, when they were called into the public service. (8 Mass, Reports, 548, 550.) If he cannot, this extraordinary result would follow, that if different detachment, of militia
From: 340 CONSTITUTION OF THE U. STATES. [BOOK III.- CHAPTER XXXVII. - EXECUTIVE --POWERS AND DUTIES.

Obviously, unlike the Articles of Confederation, the Constitution gave the POTUS control of the prosecution of a war with Command of the US Military once Congress established the "state of war". The Founding Fathers never intended that Congress to micromanage the US Military's "operations" once war had been declared.

It may be instructive to your understanding of how our Founders felt about how "war" (or "Cases of Rebellion or Invasion") impacts the standing of "civil rights" of Americans to note certain important exceptions found in the Constitution and Bill of Rights.

Most important is related to the "Writ of Habeas Corpus", probably the key "civil right" in a Nation whose justice system is based on the "Common Law".
Article I. [Section 9] The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

In the Bill of Rights other exceptions are recognized during the time of war, to wit:
Article the fifth [Amendment III]

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article the seventh [Amendment V]

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Note that during the time of war, an American's "castle right" to refuse to "quarter" soldiers in their home can be suspended. More importantly, the valuable "civil right" of first being indicted by grand jury is "excepted" for members of the active Milita during a time of war. This exception effects both the member of the Militia and a person who might be a victim of a crime committed by them.

Finally, a further insight how the standing of important "civil rights" of "the People" were view by the Founding Fathers can be seen in the Tory Act 1776, to wit:
And with respect to all such unworthy Americans, as regardless of their duty to their Creator, their country, and their posterity, have taken part with our oppressors, and influenced by the hope or possession of ignominious rewards, strive to recommend themselves to the bounty of administration by misrepresenting and traducing the conduct and principles of the friends of American liberty, and opposing every measure formed for its preservation and security.

Resolved, That it be recommended to the different Assemblies, Conventions, and Committees or Councils of Safety in the United Colonies, by the most speedy and effectual measures to frustrate the mischievous machinations, and restrain the wicked practices of these men. And it is the opinion of this Congress that they ought to be disarmed, and the more dangerous among them either kept in safe custody, or bound with sufficient sureties to their good behavior.

And in order that the said Assemblies, Conventions, Committees or Councils of Safety may be enabled with greater ease and facility to carry this Resolution into execution, Resolved, That they be authorized to call to their aid whatever Continental troops stationed in or near their respective colonies, may be conveniently spared from their more immediate duty; and the commanding officers of such troops are hereby directed to afford the said Assemblies, Conventions, Committees or Councils of Safety, all such assistance in executing this resolution as they may require, and which, consistent with the good of the service, may be supplied.

Resolved, That all detachments of Continental troops which may be ordered on the business in the aforegoing resolution mentioned, be, while so employed, under the direction and control of the Assemblies Conventions, Committees, or Councils of Safety aforesaid. From: The Tory Act 1776

Please note that in the time of war that "unworthy Americans" could be summarily deprived of their arms and liberty, without benefit of "due process" or "trial", and merely on the decision of such extra-governmental institutions as "Councils of Safety", using the regular Military of the Continental Congress to execute such decisions. Obviously, our Founders understood that times of "war" and "in Cases of Rebellion or Invasion" when "the public Safety may require it", suspension of certain "civil rights" might be necessary and even prudent. The Constitution, with its Bill of Rights was never considered by our Founders as some sort of glorious "Suicide Pact", where "civil rights" took precedence over "securing the People's Rights of Life, Liberty, and the Pursuit of Happiness (Property)".

Of course both the President, as well as the Congress have their powers and authority resticted by "Chapter and Verse" of the Constitution. As such, the Congress can no more usurp the prerogatives of the President as Commander-in-Chief in "conducting the war on terror" then the President can usurp the Congress' authority to provide the regulations for the military by rewriting the UCMJ. As Story says, once Congress declares war, their remaining authority effecting its conduct is their control of the "purse strings"!

As for this being a "partisan issue", I don't know how anyone could fail to recognize the partisan nature of the Senate filibuster on the renewal of the Patriot Act's sunsetting provision. If the vote sustaining the veto isn't "partisan", I don't know what is.

Some other thoughts:
Civilian Control of the Military
The president is Commander-in-Chief of all US armed forces and technically a civilian (not a member of the military establishment). This Constitutional provision was intended to keep military power under political control and ultimately accountable to an elected official (the President), selected by the people of the United States, not an un-elected military leadership.

Consider this:
One of the greatest examples of this was President Harry S. Truman, in his role as Commander-in-Chief during the time of war, on his own volition, without an act of Congress, decided in August, 1945, to use the Atomic Bomb at Hiroshima and Nagaski, and end the lives of over 100,000 human beings, mostly civilans (contrary to the rules of war in effect at he time, which prohibited "attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings" as part of "Laws and Customs of War on Land (Hague, IV), October 18, 1907", ratified by the US Senate on March 10, 1908).

Also, in his capacity as CiC, President, Preident Truman took it upon himself in 1948 (not durng a time of war) to end segregation of the US Military, again, without any act of Congress.
12.17.2005 3:34pm
Wormhole:
The rights of "Life, Liberty, and the Pursuit of Happiness (Property)".

Yes, thank you Neal. That was the phrase I was looking for. Nice post.
12.17.2005 4:04pm
Neal Lang (mail):
4) As other blog commentators have noted, the use of Executive Order to repeal or circumvent statute is illegal, and sets dangerous precedent. The argument, apparently advanced by Yoo, that the AUMF or PATRIOT acts grant the executive this new authority are facetious-- granting the ability to "successfully wage war" cannot, in that one vague phrase, delete a key separation of power.

Actually, John Yoo's position is that following September 11, 2001 - Congress itself granted the Commander-in-Chief the "necessary" authority:
The administration's legal experts, including David Addington, the vice president's former counsel and now his chief of staff, and John Yoo, a UC Berkeley law professor who was deputy assistant attorney general in the Office of Legal Counsel of the Justice Department from 2001 to 2003, have pointed to several sources of presidential authority.

The bedrock source is Article 2 of the Constitution, which describes the "executive power" of the president, including his authority as commander in chief of the armed forces. Several landmark court decisions have elaborated the extent of those powers.

Another key recent document cited by the administration is the joint resolution passed by Congress on Sept. 14, 2001, authorizing the president to "use all necessary and appropriate force" against those responsible for Sept. 11 in order to prevent further attacks.

Yoo, who is believed to have helped write a legal justification for the National Security Agency's secret domestic eavesdropping, first laid out the basis for the war on terror in a Sept. 25, 2001, memorandum that said no statute passed by Congress could "place any limits on the president's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing and nature of the response." From: PRIVACY RIGHTS AND NATIONAL SECURITY NEWS ANALYSIS

2) There is scant evidence that such surveillance succeeds in any of its stated goals. Past experience with general curtailing of civil liberties reveals mostly failures: Japanese internment (mentioned above) was admitted by the FBI to have very little security value.

It demands on how you define "success":
Several officials said the eavesdropping program had helped uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches. What appeared to be another Qaeda plot, involving fertilizer bomb attacks on British pubs and train stations, was exposed last year in part through the program, the officials said. But they said most people targeted for N.S.A. monitoring have never been charged with a crime, including an Iranian-American doctor in the South who came under suspicion because of what one official described as dubious ties to Osama bin Laden. From: New York Times admits it held domestic spying story for a full year

Lawyers running Military Operations, including Intelligence gathering, can be a losing proposition. Case in point: Able Danager:
In early 2000, in the midst of Able Danger, a lawyer with the Army's general counsel visited Kleinsmith. As Kleinsmith testified before the Senate Judiciary Committee in September, the lawyer reminded him that under Army regulations, any data the IDC collected on U.S. persons -- even inadvertently -- had to be destroyed within 90 days. If analysts could establish a legitimate reason to investigate a person further, they could keep the corresponding data.

But with potentially tens of thousands of names, checking each one would have been impossible, Kleinsmith said. In the Pentagon briefing, Gandy concurred: "I don't think they had the capability to scrub it in the fashion that the oversight rules could live with." From: The Mistakes of Able Danger Live On
12.17.2005 4:29pm
Humble Law Student:
Mary,

What the heck are you talking about? These are disability slurs? "Only in your delusions" &"your completely ridiculous hysterics"

You must be joking. Either this is a lame joke or you have brought new meaning to TRYING to find something offensive.

I seriously wish I was already graduated and you could try to bring me up for those "disability slurs."

You would get laughed right out.
12.17.2005 4:56pm
Humble Law Student:
Josh,

My apologies. I didn't mean to duck your question. Assuming everything about our current situation were the same, except for Hillary was President, I would say "Great Job!"

I would hold her to the same standard that I hold Bush to. Sorry to disappoint
12.17.2005 4:59pm
Humble Law Student:
Medis,

That is very interesting about George Washington. I never knew about that episode. Are there any internet resource that have information on that?
12.17.2005 5:03pm
PantsB (mail):
No man thinks more highly than I do of the patriotism, as well as abilities, of the very worthy gentlemen who have just addressed the forum. But different men often see the same subject in different lights; and, therefore, I hope it will not be thought disrespectful to those gentlemen if, entertaining as I do opinions of a character very opposite to theirs, I shall speak forth my sentiments freely and without reserve.
...
It is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the numbers of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth, to know the worst, and to provide for it.

I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years to justify those hopes with which gentlemen have been pleased to solace themselves and the House. Is it that insidious smile with which our petition has been lately received?

Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with those warlike preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort.
...
Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

....
Its a good thing our Founding Fathers did not value Liberty and Justice as cheaply as those above who wish the sacrifice essential Freedom for temporary, and hypothetical, safety.

(For those who don't recall their American History that well, the first three paragraphs are from Patrick Henry's famous speech in the House of Burgesses in 1775)
12.17.2005 5:05pm
Neal Lang (mail):
Authority (Power) and Duty (Responsibility) are two sides of the same coin. The Framers provided the President with the Authorities and Duties of Commander-in-Chief because they understood that the consequences of Command requires that a sole person must take responsibility for security failures, thus they provided the President the necessary powers to accept this grave duty. They knew that "collective responsibility", by providing the authority to direct the Military at time of war to the Congress was not satisfactory either logically or politically, as was demonstrated during the War for Indefendence. Proof of this assertion can be seen how the press and the public rightfully hold the President individually responsible for occurrances "on his watch", as in the case of 9/11. Interestingly, the 9/11 Commission recently held President Bush responsible for the failure to implement all their recommended changes to America's intelligence services, despite the fact that those recommendations notimplemented where in the purview of the Congress to enact, and not the President. Go Figure!
12.17.2005 5:09pm
Neal Lang (mail):
Its a good thing our Founding Fathers did not value Liberty and Justice as cheaply as those above who wish the sacrifice essential Freedom for temporary, and hypothetical, safety.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness. Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security. From: The Unanimous Declaration of the Thirteen United States of America - july 4, 1776--

Drafted by Thomas Jefferson, also member of the Virginia House of Burgess
12.17.2005 5:19pm
Medis:
Neal,

I believe that you are trying to construct a straw man argument by confusing "regulating our conduct of war" with "directing military operations". Of course those are distinct--regulations are rules of general applicability, whereas directing military operations involves making specific decisions in particular circumstances. In other words, that is just the difference between legislative powers (what Congress has) and executive powers (what the President has).

The power of Congress to provide the former (rules of general applicability that will regulate our conduct in war) is, of course, perfectly clear in the Constitution. Congress can define piracy and offenses against the laws of nations, make rules concerning captures on land and water, make rules for the government and regulation of the land and naval forces, and in general "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States."

As you note, none of these clauses speak in terms of directing operations. But they do speak in terms of defining offenses, making rules, making regulations, and making laws. And this basic distinction underlies the entire Constitution. Congress can provide general laws and regulations, and the President executes them in specific situations.

Take a simple example: suppose Congress defines piracy, and makes it a federal crime to commit piracy. They also include this crime of piracy in the UCMJ (which, incidentally, includes a number of criminal provisions applicable to the armed forces--not just paygrades). In your view, can the President order someone in the Navy to violate the UCMJ and commit piracy, citing his Commander in Chief power? I would say no: the President must faithfully execute the laws, and that would include faithfully executing the laws defining piracy and making it a crime.

But would you really say that Congress is "directing operations" if it makes piracy a crime under the UCMJ? As noted, I think that is clearly a straw man. Directing the operations of the Navy would be something like trying to tell the President where to deploy the ships in the Navy to confront a particular threat. But merely outlawing piracy, and applying that law to the Navy, is not "directing military operations."

And FISA is no different than this law against piracy: it is a law of general applicability that regulates the conduct of the FBI and NSA, but it is not an attempt to actually direct the operations of the FBI and NSA. And again, that is simply the difference between the legislative and executive powers.
12.17.2005 5:29pm
Medis:
Humble Law Student,

I'm not sure if there is a handy internet source for the early history of the American Articles of War (I had read about that history in several books).
12.17.2005 6:30pm
P J Evans (mail):
For those who support the idea of wiretaps without warrants: would you give this power to Hillary?
12.17.2005 7:22pm
Apodaca:
Humble Law Student -- if that really is your name -- the (former) restrictions on targeting of U.S. persons reside(d) in EO 12333, signed by one Ronald Reagan. (I draw your attention, such as it is, to secs. 2.3 and 2.5.)

I also note that despite your seemingly thoroughgoing familiarity with FISA, your prior post failed to make mention of the following clause in 50 USC 1801(f)(1): "intentionally targeting that United States person...." More to the point, you manifest a strange incuriosity about section 1804 -- you know, the one relating to applications to and orders from the FISC.

In the future, you may find the NSA's own report to Congress on the scope of FISA/EO12333 (available here) useful.
12.17.2005 9:52pm
Mary Katherine Day-Petrano (mail):
"Sigh* Humble Law Student, obviously you have not worked in a law office doing any kind of disability work. Most law offices have a DSM-IV, which contains a definition of "delusions" and other mental disabilities in which hysteria might be significant characteristic of a mental disability. Panic disorders vcome to mind, perhaps also PTSD. Your remarks readily reference mental disabilities in a manner that offends both disabled people and women.

Subpatre, see I agree that people should pay attention to definitions in a statute, but these are obviously vague and overbroad. What I am not hearing is how is the definition of "allowing surveillance of anyone ... --US citizens included-- that assists in giving information or assistance to persons associated with a terrorist group" curtailed by our most important freedom, the First Amendment? Please articulate the argument further, as the statute cannot conflict with the Constitution, or maybe someone overuled Marbury v. Madison when no one was looking and didn't tell us? Does this broad, roving, unbridled surveillance authority not infringe on First Amendment concerns of American citizens? The Supreme Court has been pretty pro-First Amendment rights. I am not criticizing your argument, only asking you to articulate and explain it more. I sincerely want to hear how you arrive at the conclusion a statute can violate Constitional rights.

Josh and Humble Law Student, allow me to say a little more about the words you well calculated to use by which you attack the credibility of those who disagree with you through invocation of a mental disability slur. As mentioned, the DSM-IV defines "delusion," and that word has a very scientific-technical definition in a psychiatric sense. People who are "delusional" are at the heart of the Supreme Court's granted cert case on the insanity defense, and they may also be people who suffer from dementia, alzheimers, or psychotic disorders like schizophrenia or certain mood disorders. Usually when you are referring to the word "delusional" you are describing a person with some problem interfering with receptive communication, that is, how they perceive thw wolrd through their senses in a way that affects their ability to see the world the way it really is.

Not everyone with a neurological, developmental, or mental disability is impaired in the ability to perceive the world as it really is (i.e., receptively), and the fact we now know this to be scientifically true, is the best reason to reject the idea of going back to the 1800s.

Since some people merely have expressive communication impairments, to call all people who disagree with you who might or might not be disabled "delusional," and equate that to 'not credible' to make the leap to the proposition all people who have mental disabilities are not credible, is to extremely denigrate and insult almost every disabled person in this Country. The last time I read the ADA, the Congressional findings still said there are more than 43 million Americans with disabilities. Where did you go to law school? Doesn't your law school accommodate its disabled law students and provide disability sensitivity training?

Josh aids you by jumping into the conversation with a gender stereotype to bolster the argument, to wit: "It seems like you're ducking the question a bit. Do you feel comfortable with someone like Hillary Clinton having all of the powers Bush wants? You're a big cheerleader for the admnistration, but unless you're totaly delusional (or plan to kill or imprison us all), there will come a time when the pendulum swings towards liberals being in charge. It seems to me that you're cheerleading for Bush to have these powers, but have no response to the idea that Clinton might have them. She's supposed to be this great baby killing, man castrating demon of the left, correct?"

A political joke based on a gender stereotype by using the female-gender specific reference to "cheerleaders" (statistically every knows there are more females who are cheerleaders than men who are cheerleaders), which subsequently refers to the symbolic stereotypical difference between Hillary Clinton as a symbol for all women vs. the symbol of President Bush (who is by all appearances a man)coupled that with several extremely derogatory demeaning gender-specific attacks on women by inferring that no women can be trusted to be a President, that all women kill their babies, that all women castrate men, and additionally seriatim ascribing all these qualities to the disabled while attacking all women by characterising all women as mentally disabled ("delusional") -- this is unbelievable.

Are there any women on this blog? This reference would attack the idea of BOTH Hillary Clinton and Conleeza Rice ever becoming President, and attribute to them the formerly referenced qualities. How uncool can you get? That, taken with the previous above-mentally disabled aren't credible statement, suggests no women are credible because they are mentally disabled.

Wow. I guess you just can't see how disabled people and women must be perceiving your posture. Moreover, if the Patriot Act has prevented approximately 3000 deaths of Americans, but the Bush administration's secret doemstic surveillance policies to abolish civil rights threatens the non-survival of more than 43 million disabled Americans, I would say 43 million people placed at risk by the Patriot Act far outweights 3000 -- unless the Bush administration is saying 43 million disabled Americans lives have no value.

Maybe it is time to abolish both the Republicans and the Democrats, get rid of all partisanship against diversity, and teach some ethics in the Nation's law schools about about discriminating against protected classes of people. I hope Josh and Humble Law Student don't think women are not credible enough to be law professors, lawyers, or judges, much less be believed credible in any Court or on any blog. Imagine this attitude loosed in a family law court!! I also hope they don't think we still live in an era where women can be denied a job promotion afer rejecting inappropriate groping by their superior or anything of that nature.

I just can't believe I am hearing a mindset contrary to what all these civil rights laws stand for that the Patriot Act is infringes.

Wasn't it the Solicitor General's brief in Tennessee v. Lane and Medical Bd. v. Hason (cert. dsmsd.) that recounted the history of discrimination? And how about all the Title IX, gender retaliation, etc. the Supreme Court has decided or is deciding?

If this is the mindset the Bush administration is using as criteria to apply Patriot Act secret domestic surveillance and potentially J. Edgar Hoover-like dossiers on women, disabled, people, and other protected categories of people, which I hope they are not (though the fact the Bush administration has not filed a brief in support of my Supreme Court ADA cases, Dockets No. 05-7287 &05-7771 does not bode well for believing they are not), I think, Josh and Humble Law Student, you have succeeded in making exactly the opposite point you have intended.

You have proved no legimitate reason the Senate was incorrect to reign-in events indicative the Bush administration may have had a policy of Patriot Act abuse on the civil rights of American citizens, at least this needs to be investigated by Congress, until we can ensure our two Hundred-some-odd year old Constitution can be preserved. If there were no more Republic, what war, Iraq or otherwise, would we be fighting for anyways?

And another thing, the argument about domestic surveillance is only one part of the problem; the other is the probability the secret domestic intelligence that has been gathered under the Patriot Act may be as wrong as the Bush administration's Saddam WMD intelligence turned out to be -- maybe worse, in light of the idea that using the highly probable wrong intelligence against disabled people to silence their disability and constitutional rights (such as those events I described-above that appear to have originated in the Patriot Act) is a whole separate and more dangerous threat to American freedoms than the apparent mere gathering of such domestic surveillance.
12.17.2005 10:30pm
subpatre (mail):
Mary Katherine Day-Petrano said "...definitions in a statute, but these are obviously vague and overbroad."
That's your opinion. Congress obviously thought it provided sufficient restraint on surveillance of terrorists and foreign agents or powers.

The First Amendment doesn't curtail anything that I'm aware of, except government attempts to restrict or restain personal expression. It secures the individual's right to religious belief and practice, of speech and assembly. Interception or surreptitious listening to that speech doesn't restrict the ability to express the speech.

If you'd read the cites, courts have held, if anything, that the First Amendment actually protects spying or interception of non-public conversations; the justificatio being the public interest trumps privacy. If held that way, there's certainly no more compelling public interest than national security.

It is not "broad, roving, unbridled surveillance authority", nor does it (nor can it) infringe on the ability to publicly speak or assemble; or to believe or worship. It appears you think the First Amendment does things it doesn't. It is curious that SCOTUS holds the First as a collective right in these cases though.
12.17.2005 11:59pm
Humble Law Student:
Mary,

Seriously, I am sorry if I have offended you. But, you have to realize that one can't go through life walking around on eggshells.

At some point, there comes a time when this gets ridiculous (or is that slur also???)

I in no way meant to offend you. However, you cannot just go around saying that term "delusional" can't be used because it is a part of the definition of insanity and that somehow it is discriminatory and offensive to all disabled people. Do you happen to speak for them all? Somehow I am fairly confident even the vast majority of disabled Americans would think you are going way too far.

I especially loved how you tried to logically reduce Josh's and mine statement to where evidently now, quoting you, we are saying that, "no women are credible because they are mentally disabled." Give me a break!

That isn't delusional, it is just utterly fallacious (there, that can't possible be a discriminatory term)

So, please stop. You are just getting really annoying.
12.18.2005 12:07am
Humble Law Student:
Apodaca,

Umm okay, I never professed any great knowledge of FISA, so I assume you are being sarcastic.

I'm not even sure what post you of mine you are referring to. Most of my recent ones have been dedicated to holding off personal attacks and trying to explain that some people's skin is much too thin (unless that is disciminatory as well! in which case I withdraw that also!)
12.18.2005 12:13am
Jonny's_Light:
Mary Katherine,

You are a very knowledgeable person in regards to law. I understand you take people who have disabilities very seriously and personal which is a very admirable and noble thing to do. However, do you not think you are building a bit of a straw man in regards to Josh and Humble Law Student's argument? They said 'delusion' and did not imply anything towards any person who is disabled or has the ability to be.

Please take a deep breath, move on, and realize that they are not meant to offend or discriminate against any person who is disabled. Thank you for the ethical etiquette of when one is in the law office, it is duly noted. Please lets resume the line of arguments that are relevant to this main post.
12.18.2005 12:49am
snead16 (mail):
Neal Lang said:

"The Framers provided the President with the Authorities and Duties of Commander-in-Chief because they understood that the consequences of Command requires that a sole person must take responsibility for security failures, thus they provided the President the necessary powers to accept this grave duty."

Yes, true as far as you go.

But you forgot about the Bill of Rights.

The SCOTUS rejected the argument now being trotted out that CIC power is limitless, stating in explicit terms:

"[A]ll governmental power--even the war power, the power to maintain national security, or the power to conduct foreign affairs--is limited by the Bill of Rights." Kleindienst v. Mandel, 408 U.S. 753, 782-83 (1972).

If, as has been suggested here, CIC power cannot be limited, then we live in a heretofore unknown dictatorship predicated on the CIC's claim that we're at war -- a claim no one made when half the world was thoroughly communist and dedicated to the deestruction of our existence though state power, something that we don't have today.

If limits do exist, what are they? Bush/Ashcroft/Yoo reject any such argument.

All we get is "trust me."

Is that good enough for the folks weighing in here?
12.18.2005 6:32am
enthymeme (mail) (www):
Too funny. Mary, you do yourself no favours when you exhibit a persecution complex. It is obvious and clear to anyone reading this thread that no 'disability slur' was intended. "Delusional" is just a common mode of expression. Yet you absurdly impute that intention to others.

Now, one wonders, does your paranoia extend to your day-to-day life?
12.18.2005 7:37am
Mona (mail):
subpatre claims after reading the definitions in section 1801 :
The result is not allowing surveillance of anyone, but of anyone --US citizens included-- that assists in giving information or assistance to persons associated with a terrorist group.


You are incorrect, because § 1802. Electronic surveillance authorization without court order explicitly and specifically permits warrantless interceptions only with regard to those defined in 1801 (a) 1-3. Thus, mere U.S. citizens are excluded from this broad power to conduct searches without court order.

For the best legal analysis of FISA and why what Bush has done is illegal if that is the authority on which he relies, see this .
12.18.2005 10:09am
Josh Jasper (mail):
Wormhole:

It's relevant because there's a lot of Bush cheerleading going on, in many cases by people who've criticized Bill Clinton as someone who ran roughshod over the law in cases like Whitewater, Filegate, and the war in Chechnya. I'm seeing little of these people criticizing Bush for the same tactics, and even less in his persuit of the destruction of the fourth ammendment.

And, BTW, I've read Hamadi. Including the dissent.

As for the "Oh, look, it's protecting lives, so we'd best err on the side of fighting the phantom menace war on terrror", that same argument has been made in favor of revoking the second ammendment. I didn't see many conservative's here insisting that strict gun control is a good idea.
12.18.2005 10:49am
Apodaca:
Subpatre wrote:
If you'd read the cites, courts have held, if anything, that the First Amendment actually protects spying or interception of non-public conversations; the justificatio being the public interest trumps privacy.
I hope you aren't relying on Boehner (DC Cir) or Bartnicki (S Ct), which you cited earlier. Even the most slovenly, incautious reader of those cases will observe that both decisions discuss not the legality vel non of the interception, but rather an entirely separate question: whether a downstream recipient of the fruits of the eavesdropping is subject to penalties under Title III for subsequent disclosure, per 18 USC 2511(1)(c). Bartnicki holds that in certain circumstances, a subsequent publisher who had no involvement in the original illegal interception is protected by the First Amendment.

(For an instructive counterpoint, I refer you to the Fifth Circuit's decision in Peavy, 221 F. 3d 158 (5th Cir. 2000), holding that a disseminator who also participates in the eavesdropping enjoys no First Amendment protection.)

In sum: You claim that the First Amendment provides immunity for wiretappers. You are wrong, and the cases you cite provide no support for your baseless claim.
12.18.2005 10:57am
Josh Jasper (mail):
Mary, beccause you're such a special ... oh, I can't use that because of the special olympics.

Uh, because you're so forceful...

No, that has uppity women connotations. Wouldn't wanna lose my feminsit cred.

Because you make such a compelling argument...

No, that would imply you're trying to argue, and not inform me as to non-offensive speech.

Um, just because. You get your own response.

Actually, I was using 'delusional' in a religious sense. Being that I'm a Buddhist, I sometimes use refernces to the concept of "Maya" which is commonly (in Buddhist scriptures) understood to refer to the God of Illusion, or in other translations, Delusion.

Maya is tempter of The Goatama Buddha during his attaining enlightenment.

So, by trying to censor my usage of a religious term in debate, you're opressing a minority religion.

Have you no respect for the religious traditions of the people you're talking to? What about my first ammendment rights?
12.18.2005 11:00am
Josh Jasper (mail):
Humble Law Student: Good answer. Thanks for taking the question head on.
12.18.2005 11:01am
P J Evans (mail):
WRT Neal's long post on what may and may not be done in times of war and rebellion, such as suspending habeas corpus:

Shouldn't it be announced publicly that it's being done, rather than a retroactive 'oh, yeah, you don't have that right now, because we're fighting the war on terror'? For me, it's as much the secrecy surrounding the whole thing that's alarming as the acts themselves. (Not to mention that there's something about declaring wars, and how the fsck do you get terror to surrender?)
12.18.2005 11:26am
Humble Law Student:
P J Evans,

Bush is insisting that a good number of leading Republicans and Democracts were all informed of the system - he referenced as such in his speech. I have yet to hear exactly who was specifically informed, but it would be interesting to find out who was told what.

I agree, btw, it is troubling if Bush did not tell any legislators at all. However, if it is as Bush says, then I think that was the perfect way to handle it - letting the key legislators from each party know what was happening.
12.18.2005 11:51am
Apodaca:
Ah yes, the well-known "I got a green light from key members of Congress" exception to the Fourth Amendment.
12.18.2005 12:03pm
Robin Burk (mail) (www):
Okay, I am neither a lawyer nor a legal scholar. I am, however, someone with some interest in national security issues who has had an interest in FISA for a good while now. And I have to say that, reading this thread carefully, I still do NOT see that the intercepts as described by Pres. Bush in his radio talk are obviously in violation of the provisions of FISA. Orin, your headline is breathless but vastly exaggerated.

For one thing, it is not clear that those being intercepted are all or even mostly citizens. FISA warrants are not required for non-citizens or those not here as legally-established permanent residents IIRC.

And second, it certainly is the case that much electronically-captured information is actionable only for a very short period of time, which makes the usefulness of the FISA warrant mechanism questionable.

Y'all go on citing precedents, as lawyers will. But as a citizen I am grateful that this Administration took on the difficult balancing act of attempting to identify and intercept potential follow-on attacks after 9/11, on the one hand, with some accountability to Congress on the other hand.

Yes, the congress that has been known to leak classified info in order to grandstand for the press. That congress.

Be careful, good legal scholars, to think through your arguments and their implications with foresight. To paraphrase, extremism in the defense of legalism is indeed extremism, of a potentially damaging sort in times of serious national threat - a threat many may underestimate precisely because we have in fact been able to intercept subsequent attack attempts on several occasions.
12.18.2005 12:34pm
Robin Burk (mail) (www):
re: who in Congress was told, Reid - the Democratic leader in the Senate - has finally admitted he knew about this for the last 4 years.

Sigh.
12.18.2005 12:50pm
Neal Lang (mail):
Shouldn't it be announced publicly that it's being done, rather than a retroactive 'oh, yeah, you don't have that right now, because we're fighting the war on terror'? For me, it's as much the secrecy surrounding the whole thing that's alarming as the acts themselves.

I believe President Bill Clinton did that when he publically announced that we could monitor the location of senior members of al Qaeda by tracking their cell phone signals. Of course, these terrorists immediately stopped using cell phones and our intelligence operations were setback in tracking these terrorists as the were preparing to launch their 9/11 attacks.
(Not to mention that there's something about declaring wars, and how the fsck do you get terror to surrender?)

The declaration of War on Terror far exceeded the any Congressional declaration for say the Civil War, a war in which more Americans died than all the others combined! This did not stop the Lincoln Administration from suspending habeas corpus in the case of some 13,000 Copperheads in the North.
Authorization for Use of Military Force Against September 11 Terrorists
Pub. L. 107–40, Sept. 18, 2001, 115 Stat. 224, provided that:
“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 [50 U.S.C. 1547 (a)(1)], 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 [50 U.S.C. 1544 (b)].
“(2) Applicability of other requirements.—Nothing in this resolution supercedes any requirement of the War Powers Resolution [50 U.S.C. 1541 et seq.].”

Most likely you get terror to surrender by eliminating terrorists. This is similar to the strategy used in getting the Japanese to surrender.
12.18.2005 12:50pm
Neal Lang (mail):
Ah yes, the well-known "I got a green light from key members of Congress" exception to the Fourth Amendment.

Of course there are many "exceptions" to the "civil rights" espoused in the Bill of Rights. Even those rights of persons the courts deem demand "strict scurtiny" can be excepted for a "compelling state interest". I submit that the State has a "compelling interest" in preventing its inhabitants from being slaughtered in act of murderous terrorism. Again, the Constitution of the United States is not some sort of a "Glorious Suicide Pact".
12.18.2005 1:03pm
Humble Law Student:
Robin,

Per chance, do you have any links to sources that explain who was told what, when? I'm curious to find out.
12.18.2005 1:07pm
snead16 (mail):
Someone suggested that Clinton (the omnipresent excuse) blew the hunt for Bin Laden and other terrorists by disclosing that their cellphone communications were being monitored.

Well, I guess when Bush became president, the terrorists started using cellphones again -- figuring that because Bush &Co. detested everything Clinton, the Bush administration would stop monitoring terrorists' use of cell phones . . . right? That was just so Clinton.

And a couple other things.

To justify Bush's domestic spying on CIC grounds, some have compared it to Lincoln suspending habeas corpus -- a crucial civil right in the battle against government oppression.

That's a total non-starter.

Suspension of the great writ, apart from the requirement of rebellion or invasion, IS EXPLICITLY AUTHORIZED in US Const. art. I Sec. 9 cl. 2.

On the other hand, I've read and re-read the 4th Amendment, and I just don't see anything in there about the President or Congress having the authority to suspend its prohibitions and protections in times of, well, anything. And I don't see anything in Art. I or Art. II allowing it. [And don't argue CIC power because CIC power, like ever other government power, is limited by the BofR.]

Call me a "strict constructionist," but I just don't see how anyone can push the "CIC power can't be limited" view . . . and in another breath, say we need judges who will strictly interpret the Constitution -- which apparently means "except in any way that limits anything the president (Dem or Repub) wants to do in the name of the war that has no end."
12.18.2005 1:15pm
JosephSlater (mail):
Re the "constitution is not a suicide pact," as someone interested in legal history, I encourage intersted folks to to actually read Terminiello v. Chicago (1949), the case which prompted that language in Jackson's *dissent.* While we're not debating the merits of that case here, I think it's instructive to see what Jackson was actually claiming could turn the Constitution into a suicide pact, and to think about why his language wasn't picked up in that case or in other significant majority opinions.

Terminiello delivered an address in an auditorium in Chicago under the auspices of the Christian Veterans of America. The auditorium was filled to capacity with over 800 people. Outside of the auditorium a crowd of about 1,000 gathered to protest against the meeting. A cordon of police was assigned to maintain order; but they were not able to prevent several disturbances. The crowd outside was angry and turbulent. Terminiello, in the court's words, "in his speech condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation's welfare."

He was prosecuted under a statute that read:

'All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city * * * shall be deemed guilty of disorderly conduct

The majority of the Supreme Court held that the prosecution violated the First Amendment. The majority held that the function of "free speech" under our system of government is to invite dispute and "free speech" may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even
stirs people to anger.

Jackson dissented, using the "suicide pact" language.

My guess is that at least the libertarians who sponsor this blog would agree with the majority in that case, not with Jackson. I understand we have different issues today, but perhaps the actual context of the "suicide pact" language might give us pause about using it now.
12.18.2005 1:18pm
Neal Lang (mail):
The power of Congress to provide the former (rules of general applicability that will regulate our conduct in war) is, of course, perfectly clear in the Constitution. Congress can define piracy and offenses against the laws of nations, make rules concerning captures on land and water, make rules for the government and regulation of the land and naval forces, and in general "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States."

But the Congress cannot limit the President's perogatives as Commander-in-Chief, which you seem to think they can. Once Congress declares a state of hostility and instructs the President to engage in combat their sole claim to affecting the "conduct of war" is to cutoff the funds needed to prosecute the war. This is exactly what the Congress did in Vietnam and in the case of Nicaragua, to their everlasting shame.
12.18.2005 1:20pm
Apodaca:
Robin Burk wrote:
I still do NOT see that the intercepts as described by Pres. Bush in his radio talk are obviously in violation of the provisions of FISA.
Here's a good starting point:
A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute...
50 USC 1809(a)(1)
12.18.2005 1:41pm
Robin Burk (mail) (www):
Humble Law Student, what I have so far was watching Reid admit to Chris Wallace on Fox this morning that he had indeed been briefed on this for the last 4 years. Newsmax (not a favorite source of mine, but in this case one that references in e-print what I saw on broadcast) has a writeup here. Apparently Pelosi has finally admitted she was briefed at the time and on regular occasions since, as well.

My understanding from people I know who have been in or worked closely with the intel community is that the FISA implementation procedures generally would bring the majority and minority leaders of both houses, plus the ranking members of both parties in the intel committees, into such briefings. Reid's and Pelosi's admissions that they were briefed are in line with the President's public assertion that leaders of both parties were kept informed all along.
12.18.2005 1:48pm
Robin Burk (mail) (www):
apodaca, it will come down to this, won't it:

except as authorized by statute

My understanding of FISA is that it does indeed have provisions for certain extraordinary circumstances in which even the FISA warrant process can be waived. Note that it must be waived in writing, through the Attorney General - which is not quite the same thing as lawless, arbitrary and unaccountable exercise of executive powers.

Again, I am not a legal scholar -- just someone with a strong interest in national security matters. This may be an area where different people of good will and suitable learning could read the statute differently. But it is not obvious to me that the Administration's reading is unfounded in the FISA statute.
12.18.2005 1:53pm
Neal Lang (mail):
If, as has been suggested here, CIC power cannot be limited, then we live in a heretofore unknown dictatorship predicated on the CIC's claim that we're at war -- a claim no one made when half the world was thoroughly communist and dedicated to the deestruction of our existence though state power, something that we don't have today.

Let's see! Well, without an act of Congress, President Abraham Lincoln, Commander-in-Chief of the Union military, suspended habeas corpus for those deemed a risk to the Union (a.k.a. the State). Habeas corpus is the "key" to be heard in court. Without habeas corpus, your day in court is quite moot. Without your "day in court" - your "rights and privileges" under the Bill of Rights are all quite meaningless.

BTW, I never said that the CIC's powers are unlimited - I merely suggested that in the time of war, the CIC's efforts to "provide for the common defence" to the end that "the People's right to life, liberty, and the pursuit of happiness (property)" are secured, tromps certain "civil liberties" that might foil the CIC's war fighting purposes.

Just how do you suppose that separation of powers work, if the courts and the Congress can limit the Executive when it exercises its most important authority - that of CIC at ime of War. The Supremes believe this, as they allow that a "compelling state interest" can override even "civil rights" such as "speech and press" that demand "strict scrutiny" by the courts. The Legislative Branch makes law. The Judicial Branch reviews those laws. The "State of War", by definition is a "failure of law".

Of course, the terrorists have no "right" to expect that planning their narfarious deeds will enjoy the complicity of our "Bill of Rights" in their murderous efforts. ALL of our Founding Fathers agreed that "rights" - human or civil - can never be used for evil. That our Founders believed in this concept can be seen by the Tory Act of 1775.
12.18.2005 2:00pm
Robin Burk (mail) (www):
This portion of FISA may be relevant:

(1) 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 periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.


It hinges, of course, on the definition of "a United States person" :

i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

So, people here on student visas, or who acquired permanent residency fraudulently, for example, are not "United States persons" for the purpose of the FISA warrant process, if I understand correctly.

Faris, one of the people who plotted from Brooklyn to blow up bridges and who was caught via these intercepts, is a naturalized citizen, but he also lied about his ties and coordination with al-Qaeda and other groups. And as I read the FISA provisions, anyone who knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power. . . [or who] knowingly aids or abets any person in the conduct of activities described [herein] may be surveilled as well.
12.18.2005 2:07pm
Apodaca:
Neal Lang wrote:
I believe President Bill Clinton did that when he publically [sic] announced that we could monitor the location of senior members of al Qaeda by tracking their cell phone signals. Of course, these terrorists immediately stopped using cell phones and our intelligence operations were setback in tracking these terrorists as the were preparing to launch their 9/11 attacks.
Neal, does it occur to you that this is a false analogy? It is one thing to disclose a specific collection technique; obviously, that enables targets to take specific countermeasures. It is another thing altogether to disclose that surveillance in general -- already legally permissible with benefit of a FISA order -- will be conducted without a court order. Do you honestly believe that "I have the authority to do X" is a bigger tipoff to foreign agents than "I have the authority to do X under a secret court order authorized under a widely published federal statute"?

Neal also opines:
I submit that the State has a "compelling interest" in preventing its inhabitants from being slaughtered in act of murderous terrorism.
By that stroke of logic, of course, the guarantees of the Bill of Rights are meaningless, subject to abrogation at any time by presidential fiat.

Then again, Neal, perhaps you don't intend your statement to be pure ipse dixit. Maybe you mean that this "compelling interest" can justify overriding the Fourth Amendment through means "narrowly tailored" to address a specific harm. But you haven't, as far as I can discern, dealt with the availability of FISA orders -- and of emergency FISA surveillance in advance of obtaining an order -- as a less intrusive means of serving the same state interest.

Neal, again:
But the Congress cannot limit the President's perogatives [sic] as Commander-in-Chief ....
Are the President's prerogatives as CINC boundless? Are you asserting that engaging in surreptitious electronic surveillance on US citizens is part of commanding the armed forces and conducting military operations?
12.18.2005 2:13pm
Apodaca:
Robin Burk writes:
My understanding of FISA is that it does indeed have provisions for certain extraordinary circumstances in which even the FISA warrant process can be waived.
Mona has already explained in a prior post that this doesn't apply to US citizens.
12.18.2005 2:19pm
Neal Lang (mail):
Someone suggested that Clinton (the omnipresent excuse) blew the hunt for Bin Laden and other terrorists by disclosing that their cellphone communications were being monitored.


Actually, the point was that "publicly announcing" how we are "countering" terrorism is quite counterproductive.

As for the terrorist now using cell phones again, they never stopped - the merely switched from the phones they were using - the ones our intelligence services had the electronic signatures of. Now we must locate the "bad guys" by having the NSA read all cell phone communications and had a computer determine potential terrorist targets.
To justify Bush's domestic spying on CIC grounds, some have compared it to Lincoln suspending habeas corpus -- a crucial civil right in the battle against government oppression.

That's a total non-starter.

Suspension of the great writ, apart from the requirement of rebellion or invasion, IS EXPLICITLY AUTHORIZED in US Const. art. I Sec. 9 cl. 2.

Please note that Article I. Section 2. Refer speifically to limitations on the power of "Congress", not the President. When President Lincoln, as Commander-in-Chief, declared martial law and suspended habeas corpus, he did so without "act of Congress". Please explain this in lew of the Article I. Section 9. of the Constitution of the United States of America.
On the other hand, I've read and re-read the 4th Amendment, and I just don't see anything in there about the President or Congress having the authority to suspend its prohibitions and protections in times of, well, anything. And I don't see anything in Art. I or Art. II allowing it. [And don't argue CIC power because CIC power, like ever other government power, is limited by the BofR.]

Hmmm! Interestingly I can find no Article prohibiting it, either. Go figure!

BTW, without habeas corpus, I submit, your "civil rights" are quite meaningless, as to "enforce" your right, you need to get your case before a court. Without habeas corpus you have no way to make that happen.
Call me a "strict constructionist," but I just don't see how anyone can push the "CIC power can't be limited" view . . . and in another breath, say we need judges who will strictly interpret the Constitution -- which apparently means "except in any way that limits anything the president (Dem or Repub) wants to do in the name of the war that has no end."

Do really believe the Framers didn't know the affect of suspending habeas corpus "when in Cases of Rebellion or Invasion the public Safety may require it" really meant the suspension of "civil rights" a times when the Nation was in peril?
12.18.2005 2:39pm
Robin Burk (mail) (www):
Mona has already explained in a prior post that this doesn't apply to US citizens

But she does NOT address the exception, namely when a citizen is acting as an agent for a foreign group attempting or planning terrorist attacks. FISA specifically allows, as I read it, surveillance in such cases without a FISA court warrant provided the attorney general states in writing etc. etc. as noted earlier.
12.18.2005 2:54pm
Neal Lang (mail):
By that stroke of logic, of course, the guarantees of the Bill of Rights are meaningless, subject to abrogation at any time by presidential fiat.

It would seem that President Abraham Lincoln thought so in the case of his fighting the Civil War as CIC.
Are the President's prerogatives as CINC boundless?

Nearly so! As I submitted previously, I agree with Story's take that Congress' powers to interfere with CIC's "conduct of war" are limited to the "powers of the purse".
Are you asserting that engaging in surreptitious electronic surveillance on US citizens is part of commanding the armed forces and conducting military operations?

I suspose you have heard of the concept of "Military Intelligence". Since the Revolutionary War, the Military of the United States of have been running "surreptitious surveillance", electronic or otherwise, on US residents, citizens or otherwise. How do you supose that Hoover's FBI was able to take down every Nazi agent (citizen or otherwise) in the US within weeks of declaring war on Germany?
12.18.2005 2:57pm
Neal Lang (mail):
re: who in Congress was told, Reid - the Democratic leader in the Senate - has finally admitted he knew about this for the last 4 years.

Do you suppose that the NYT's expose' was timed to do the most political damage possible to the renewal of certain provisions of the Patroit Act? Does anyone consider this "year old story" being released when it was a non-partsan? Does Dan Rather now work for the NYT? Will there be a Special Prosecutor to look into who leaked this information about a true classified operation to the NYT?
12.18.2005 3:11pm
elise (mail):
I have a question so all outgoing deployed military phone calls to the U.S., are being monitored and recorded?
12.18.2005 3:29pm
Neal Lang (mail):
But you haven't, as far as I can discern, dealt with the availability of FISA orders -- and of emergency FISA surveillance in advance of obtaining an order -- as a less intrusive means of serving the same state interest.

Just how would the President, as Commander-in-Chief, address obtaining a warrant to record a telephonic conversation between al Qaeda operative "Y" in a foreign land (whose location and identity was unknown until he initiated the call) and a US resident "X" (citizen or otherwise - whose identity and location were unknown prior to their receiving the foreign terrorist's phone call). This would seem to make complying with the "letter of the law" of the "Search Warrant" provisions of 4th Amendment quite impossible, to wit:
Article the sixth [Amendment IV]

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Aside from clairvoyance, perhaps you can explain how a proper Search Warrant, stipulating unknown "probable cause", to record the conversation between parties unknown, at a time and place also "unknown". Would Judges be willing to issue Search Warrants for circumstances described covering persons, places, and times unknown, I would agree that perhaps a "good faith effort" to obtain one, might not be too much to ask. However, no Judge would issue such a warrant, and besides, I see no Judicial power or authority that may over-ride the President's powers and authority, as Commnder-in-Chief, when conducting a war.
12.18.2005 3:43pm
Robin Burk (mail) (www):
They can be, especially if they use government equipment.

Any civilian or military employee of the federal government is regularly informed that their voice, electronic or paper correspondence prepared or in any way transmitted using government equipment is subject to surveillance. It shows up as a warning screen during every logon on government-owned personal computers, for instance, and the warning applies to communications using personal phones or PCs if the signal travels over government owned networks in any way or to any degree. They may also be subject to monitoring under other circumstances for military IIRC.
12.18.2005 3:45pm
Robin Burk (mail) (www):
Sorry, that last comment was in response to elise's question.

Apart from the issue of government-owned equipment or networks, elise, military deployed overseas - and especially in operational zones - are subject to military regs and orders regarding operational security. Information does not need to be classified to be operationally sensitive and subject to "do not disseminate" rules. Thus, details of upcoming or recent operations may fall under these provisions, as does anything that is marked For Official Use Only - a rating that is less than classified, but legally imposes restrictions on its dissemination.
12.18.2005 3:48pm
Smithy (mail):
I know nothing about the legality of any of this, let me say that upfront. But it seems to me that in matter of practicality, those who have nothing to hide have nothing to fear. If so many on the left are doing nothing wrong, as they say, then why do they care if their calls are monitored? I don't quite understand it.
12.18.2005 3:58pm
Neal Lang (mail):
The majority of the Supreme Court held that the prosecution violated the First Amendment. The majority held that the function of "free speech" under our system of government is to invite dispute and "free speech" may best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.

Obviously "political speech" of the sort expressed by Terminiello is exactly the type of "protected speech" the Founders had in mind when writing the 1st Amendment. The same could not be said of the "speech" between al Qaeda agent "X" in the US and his al Qaeda control somewhere in the Hindu Kush, instructing agent "X" to carry out the poisoning of the Washington, DC water supply.
12.18.2005 4:00pm
Neal Lang (mail):
As for the "Oh, look, it's protecting lives, so we'd best err on the side of fighting the phantom menace war on terrror", that same argument has been made in favor of revoking the second ammendment. I didn't see many conservative's here insisting that strict gun control is a good idea.

I fail to see where the Bush Administration has recommended any such thing. Perhaps because touting "gun control" as a means of fighting terrorism is counter-intuitive. Obviously, in the "War on Terror", an armed citizen is truly the "First Line of Defense". Only an idiot would recommend disarming the honest average American (the true Militia) at a time when terrorist can strike in any American city at any time.
12.18.2005 4:14pm
Mary Katherine Day-Petrano (mail):
Humble Law Student, Josh, I did not need law school to recognize a pack of common school yard bullies. Is that really necessary? And I have earned the right to expect compliance with my civil rights proteced by the Americans With Disbailities Act by the injuries my family and I have suffered. Mocking a disability? Now you like to mock disabilities? If it were not for autistics, no one would have ever heard of Thomas Jefferson, and to paraphrase Temple Grandin, if it were for autistics the rest of mankind would still be sitting around chatting in caves.

That is why the Supreme Court had the courage to decide Tennessee v. Lane the way it did because this type of mindset got way out of hand; do you disagree with their decision? If so, use the legal skills you claim to have achieved, stop the sick sadism of mocking disabled people, and state a genuine persuasive legal argument why the Patriot Act should be allowed to infringe disability and other civil rights -- even to the point for which you have not yet convinced me, that Presidential CIC power includes the right to subject the National group of disabled to a genocide to afford a luxury war to avenge the President's daddy's failure to "get Saddam" in Iraq War #1.

If this is what the President has sought to accomplish, why (1) should the Patriot Act ever be reuathorized, (2) why shouldn't the President be impeached, and (3) why should dsabled Americans' case not be heard in the International Court of Justice under the Convention Against Torture and the Convention Against Genocide? There are no statutes of limitation or immunities under international treaties for crimes against humanity, even against one's own citizens.

I am just asking the question that millions of other Americans are too disabled to ask.

Josh, Thank you, for recognizing you can't suggest I ride in the Special Olympics, since the IQ must be under 70 to qualify and mine is far higher, in fact I used to play and win 3-D tic tac toe against IBM's predecessor to Big Blue when I was 7 years old on the nights my father had to work late and I had nothing to do and got bored. And I woudl ride in Wellington if I could. But by bringing it up to mock my disability by an innuendo, you retaliate. Hopefully by the time I have lived my life, every law student will be required to pass an ADA component on the Bar Exam in order to become licensed, and every existing lawyer will be required to take regular CLEs or MCLEs in the ADA to maintain a license.

Do I have to take your offensive speech? I will concede that's a fair argument, with which agree; however, discriminatory slurs and mocking disabilities to harm a reputation or cause intentional mental anguish or emotion harm, is that protected speech? Inciting others to gang up and bully a disabled person, is that protected speech? You walk a fine line, and it is an easy one to cross. Why can't you just learn not to cross that line? I doubt doing so adds to the effectiveness of your argument.

I have no problem if you want to call me "forceful" 'because I am a woman,' since after all one of the characteristics of an autistic (thought to be caused by too much male hormone in the fetus stage) is having too many male characteristics -- I am quite used to the fact my autism makes me different, and I don't apologize for the fact I am autistic. Is that offensive, perhaps, but I rather think I am more accurately assertive than "forceful," but hey, we all have a First Amendment right here.

No, you were not using "delusional" in a religious sense, you were using it to infer the mentally disabled are not credible. You now take it out of context, now that I applied the Socratic method to the straw man argument you constructed to "prove" the Patriot Act ought to allow the President roving unreviewable privileges to spy domestically on American citizens. You just don't like the illogical extremes when one follows your argument to its self-evident conclusion.

Even if you disavow changing your story because the first one bit the dust, are you saying "Justice Sunday," the conservative religious political base of the GOP, and everyone who practices one or another religion are "delusional?" You keep biting off more than you can chew. You need to keep your arguments more narrow to avoid challenge. FYI, I am Catholic, and maybe your speech is offensive, but hey -- I have to hear it just like I expect others to hear my point of view about the Patriot Act violating disability civil rights even if disabled people asserting disbaility rights are "annoying." Trust me, I have had a lot worse happen to me for simply invoking the ADA than being "annoying."

But, seriously, how does religion have any part in the argument you posit in support of the roving, unbridled, unreviewable, vague and limitless powers the Patriot Act gives the President to surveil and use domestic spying information against civil rights Americans being A-ok? Please tell, me, I want to hear it. Are you saying the Patriot Act is really a 21st century crusades-enabling statute because instead of fighting a war for Iraqi freedom, what is really at stake is we are fighting a religious war? Please enlighten me!

Johnnys_Light, I think my posts are absolutely relevant to whether the Patriot Act and the President's actions under it and those he now admits are also above the law have been used to violate the civil rights of American citizens. MY rights were violated. That gives me standing, for which enthymeme, I have suffered injury-in-fact from verifiable events documented in police reports, a federal district court's ruling, an admitted, confessed perjurer's Answer filed in federal court, and other events filed in other cases. Before you throw some argument out there, perhaps you should see if it is supportable. (Doesn't most everyone follow the Rule 11 standard, reasonably basis in fact and law?)

A "persecution complex" and "paranoia," is basically defined under the DSM-IV only when there is no factual basis for one's belief to be so. By your definition, every Iraqi soldier would have the same persecution paranoia complex because of the perceived threat they might wind up in some insurgency car bombing somewhere. You think when there is a reasonable objective basis for one's beliefs, they should not be watchful to stay out of harm's way?

I learned my most important lession of law school from my Harvard prof in my Art. 9, UCC Secured Transaction in Personal Property, when he made me (with MY disbailities) rewrite one insignificant paper four times to teach me the lesson not to carelessly interchange two words with different meanings, "costs" and "expenses." I complained, 'but I am a singlemother, I have other classes, other assignments, finals are coming up,' and he told me his little assignment might be inconsequential in the scheme of things, but someday I might find myself in a very high court with a very significant issue at stake and when the chips are down it will make an emormous difference to pay attention to absolute accuracy of the words one uses.

If people are going to loosely fire off words like "delusions," "persecution compex," or "paranoia" out of their cannons, please how about a little accuracy in the use of the words you choose.

Thin-skinned? Hey, I am the most thick skinned disabled person you will ever meet, and tenacious too. But over the 16 years or so since I graduated law school, I have come to see first hand how disability slights, slurs, gang-bully activity, and other much worse harms are tolerated by the majority in this society, and the worst offenders of this exist in our legal profession. Maybe that is because of the nature of what we do, one has to be agressive or the adversary will eat you up. And in that respect, though Humble Law Student crossed the line of mocking a disability, me thinks he has many very admirable qualities; he just needs to learn how to use them effectively. My only beef as a disabled person is, hey Humble Law Student, learn about disabilities and civil rights a little bit, maybe you will realize disabled people are not the enemy of America and they are not your enemy. And that this mindset that disabled people do not have a value protected under international law at least equal to CIC powers and the Patriot Act, such that they should be protected from Presidential spy lists unless they ARE actively aiding foreign terrorists based on obejctive evidence (e.g., the Marin County, California of John Lindh) is amazingly scary to the prospects of our Republic surviving another 200 years.

Back to enthememe, hey, go ahead misuse medico-legal terminology to mock my disability, I have earned my spurs. I can tell you a lot more of what I have been subjected to just for invoking the ADA than I have already -- the mere moment I speak the words in a Court "I need a reasonable accommodation to meaningfully participate." You want to hear it? Probably not, its' "inconvenient" and "annoying."

1. I asked for a reasonable accommodation in a "grandparent visitation" case in Sonoma County, California Superior Court. I must have blasphemed God to have made such a request, because I was subjected to:

(i.) six bailiffs standing right behind me jangling their handcuffs with their hands on their guns with the State Court judge informing me if I opened my mouth and made a request for accommodations or one word of argument to defend my then-15 years of sole custody of my biological daughter, I would be held in criminal contempt and jailed. Now THERE's an intimidation prohibited by 42 U.S.C. Sec. 12203, but I learned the first rule of law school: I obey judges' orders and directives in the first instance, and then I take my appeals.

(ii.) I was stripped of my 15-years of status-quo sole custody of my daughter with no finding of any parental unfitness whatsoever, just because I am disabled, under a grandparent visitation "best interests" standard of the type subsequently struck down by the Supreme Court. I tried to overcome disabilty barriers in the Supreme Court for review, but in appx. 8 cases I have tried to file there, I was unable to overcome the Supreme Court's disability barriers in all but 3 of my cases over 16 years). I guess the Supreme Court inadvertently hired Josh, Humble Law Student, and enthymeme and they only believe in Equal justice for wheelchair users, but not assistive technology victims.

(iii.) the State Court Judge retaliated for my asking for accommodations, by refusing them without any evidentiary hearing, violating the ADA's Title II anti-surcharge regulation, 28 C.F.R. Sec. 35.130(f), by forcing my mentally disabled mother to work more than 80 hours a week to pay my court costs and perform as my scribe/amanuensis (he forced her to be my accomodation) under threat of my not being able to defend my constitutional right to parent my own child (cutting of her grandparent rights as well), knowing he was deteriorating mymother's mental condition to the point she self-immolated on my father's front lawn in an Equal Protection protest with suicide signs at the scene "Sonoma County Gives Green Light to: Violence Against Women." Ah, yes, there is a documented police report on this.

(iv.) the male State Court Judge also belittled the fact my father severely beat me in a domestic violence attack, causing the majority of my physical disabilities by ramming my head repeatedly into the walls of his house, refused to protect my safety and the safety of my daughter, in the exact same time frame that gave rise to the Theresa Macias DV murder by her husband in the same jurisdiction, and then the Judge attacked my bar admission by stating "God knows we already have too many problems with attorneys without adding one more to the stack" &"she is just intelligent enought to cause tremendous problems for everyone." A few years later, this Judge was removed from the Bench because he also groped his judicial assistant.

2. Seven year fight with the California Committee of Bar Examiners to secure necessary accommodations to pass the bar exam, during which the Committee arrayed six extremely experienced trial attorneys against me, just one unaccommodated disabled person (they were my mentors, that's how I cut my baby teeth right out of law school), revoked my twice previously granted "good moral character" clearance because Social Security disability did not pay enough for disabled people to retain housing in California'a super-expensive real estate market, refused to adhere to my Dept. of Rehabilitation IWRP with the federal objective of providing me a voice-recognition Speech-To-Text AT device to achieve my attorney license, and denied my bar admission out of expressed irrational fears about licensing a disabled person -- while during the same time frame recommeding "good moral character" bar admission of Gossage, a convicted felon with 17 convictions who stabbed his sister 22 times with scissors and murdered her. For 16 years, California has flat out refused to docket my appeal and give me a final bar admission decision, because the clerk of the California Supreme Court on behalf of the Chief Justice, Ronald M. George, told me, "you mean we have to accommodate paraplegics, people missing arms, and autistic/learning disabled people in our Courts system? No, we're not going to do that, and we are not going to license any attorney in California who requires dictation to another person or a voice-recognition Speech-To-Text assistive device." California also lost my case when former Calif. Gov, Pete wilson shut down the State Bar in 1998 by vetoing the bar fee funding bill. See, ABA e-J, Aug. 2003, letter to the editor re: Aruba.

3. Refused accommodations by Florida's entire State Court system, because the US DOJ forced them to sign a Settlement Agreement in 1996 and they hate the ADA, and in their misconceived view autistic people with 20/20 vision are deemed to be blind people who "cannot see" and therefore more than 37 years of a very clean safe driving record and driver's license should be suspended because the Florida Bar refuses to CLE its lawyers in the requirements in Title II of the ADA, the Florida Supreme Court refuses to require judicial education in the same, Florida's Judicial Qualifications Commission will discipline a judge for joining discriminating organizations but have no rules to discipline for violationg the ADA, and admittedly (by the Florida Second District Court of Appeal &Florida Supreme Court --5 Justices) the entire Florida Courts system has no jurisdiction under the Florida Constitution to hear or decide ADA claims, defenses, rights, or remedies. READ THE MESSAGE FROM GOV. JEB BUSH'S STATE OF FLORIDA -- 'WE HATE THE ADA!!'

4. When my process server (an attorney) and I went to serve the Florida State Courts process on my Federal ADA suit, US Sup. docket No. 05-7771, the Court's counsel told us to serve her office, then when we did, four bailiffs with handcuffs and guns violated our 4th Amendment rights by retaliating in a detention under threats of arrest "unless we took back the service of process."
5.

(i.) Seventeen of the Florida defendants in that Docket No 05-7771 hired the same law firm, Zinober &McCrea, P.A., disregarded the conflict of interest inhering in common representation of the Florida Supreme Court, Sixth Judicial Circuit of Florida, and Florida Department of Highway Safety and Motor Vehicles, while simultaneously the Florida Supreme Court was adjudicating (reviewing) the actions of the other two; moreover, continuing to make representations to the federal courts that I was not disabled, that they did not violate the ADA by refusing to accommodate me, and that reasonable accommodations decisions were a judicial function entitled to claim judicial immunities -- while knowingly concealing from me and the federal courts that their law firm had written a 2003 letter to the Tampa EEOC stating that I was not qualified for employment preparing motions, pleadings, correspondence, and virtually all tasks required to participate in Court litigation because I can only type or write for 1 hour or less absent my accommodations, and in light of the Second District Court of Appeals' Apr. 2005 written admission reasonable accomodations/grievance decisions in Florida Courts are an administrative matter and not a judicial function (meaning they were not entitled to claim judicial immunities).

(ii.) when I persisted in my appeals, the events I have previously described on this thread occurred upon which my husband and I have reason to believe the State of Florida defendants brought forth an abuse of the Patriot Act domestic surveillance, involving the admitted perjurer's reckless tie-up of the Vessel Mistress to endanger our lives (maybe to make my federal ADA suit against the State of Florida go away by my death?, Docket No. 05-7771), and a "commando raid" on our own vessel S/V Canandaigua.

(iii.) when I continued to persist in my appeals to the Supreme Court, my husband and I inexplicably found ourselves in the middle of an extremely scary, intimidating police operation (involving other people) in which our first thought at the time was we were going to be executed in a spray of bullets for my having the audacity to pursue the filing of my Supreme Court Petition, No. 05-7771 (the police conducted the operation on the eve of the due date of the Petition in the case in which they were defendants, No. 05-7771, and the incident was on the intial web site police log, documented).

(iv.) retaliation against my husband by the Florida Bar's attorneys, Greenberg Traurig, P.A., that day after I filed my 11th Circuit ADA brief in a case in which a Circuit Judge granted IFP to allow my case to go forward against a Florida State Court and Chief Judge for monetary damages with no immunities, &5 justices of the Florida Supreme Court filing orders first refusing accommodations, then rejecting jurisdiction on the exact dates my filings were due in my cases involving them in the United States Supreme Court and Eleventh Circuit -- what to exacerbate my disabilities? (they didn't, as I said I am not thin-skinned); the Florida Supreme Court entertaining the bar admission of an individual who sent me a phony LEXIS number to induce me to use it, Florida Bar &Florida Supreme Court refusing to take disciplinary action against the attorney who put on the perjurer, who the perjurer says was involved in his being induced to commit perjury.

5. The day the Magistrate ordered change in substitute custodians of the recklessly-tied Vessel, the local police (defendants in No. 05-7771) came to the dock to conduct an investigation out of their jurisdiction of where the Vessel went; they did not back off even in the face of the Vessel being under US Marshal jurisdiction and the Marshal's arrest. The day after, a homeless looking individual without tanned marks on his legs appeared as if sleeping on the sea wall (!!) with a fancy gold listening device on his writst extended toward our Vessel S/V Canandaigua as far as he could reach, in the geographic location where the Vessel Mistress had been, and when I told my husband from inside our vessel that I was getting the camera to take pictures, the guy quickly expedited out of there.

(i.) When at the Apr. 15, 2005 hearing before the Magistrate to decide what to do about the perjury in the Vessel Mistress case, my husband and I saw people groomed like feds in the Courtroom and the defendants and their attorney parked for 2 hours during the hearing in the US Marshals' spot, after we served a FOIA request asking who authorized them to park there along with a request for access to the video tape of the time &date they were parked there, the head Marshal in charge of the Marshals parking spots at the Courthouse told my husband "you're barking up the wrong tree, you're way in over your head here."

Why? Because my husband and I are the victims of the Bush administration's abusive spying domestically on American citizens? Because my husband helped me raise my ADA civil rights case against two State Supreme Courts, their other State Courts, their Bars? And when Patriot was brought forth and a Vessel was used to surveil us and then recklessly tied to ensure we died, and instead we lived long enough to arrest it in admiralty, while tenaciously pursuing review in the United States Supreme Court despite all odds and an overwhelming abuse of retaliatory governmental power against us, we exercised our First Amendment rights to voiciferously complain?

I say unless any of my critics have irrefutable controverting objective evidence that what my husband and I reasonably believe to have occurred DID NOT HAPPEN, then Congress has every right, and a responsibility, to investigate these matters, similar events that have occurred to other Americans, and if an impeachable offense has occurred or even if simply the Patriot Act has been abused because innocent American citizens merely attempted to enforce their civil rights, then Congress should have the right to do something about it and rein-in the abuses.

So Josh, Humble Law Student, offend me all you want, recognize disabled people are not going to take mocking about their disabilities, do not want to be killed by their government's activities just fr raising disabilty civil rights claims (Smithy, THIS is what people who are not doing anything wrong have to fear), and continue "taking the question head on" -- if you can; if you really think your position with the hindsight of history will turn out to be sustainable. I admire a good fight.

You, enthymeme, you have a long way to go to learn about disabilities or even how to be as capable a legal adversary as Josh and Humble Law Student here. Thin-skinned? Go ahead and spin your brand of disability bashing, but remember never to underestimate the skills and abilities of your adversary in ligitation, which I imagine you will someday find yourself if you are planning to become a lawyer or are one already. That is the biggest mistake of all.

Thank you, Neal Lang, you are correct, and that was my point all along. Rein-in the Patriot Act abuse and overbreadth, vigorously enforce civil rights, and apply strict scrutiny. I have no problem with the President catching the al-Queda enemy foreign terrorists so long as for American citizens, especially the disabled, adequate and meaningful safeguards remain. And, when there is an abuse, give the victims a remedy!

The Second Circuit recently had the courage to give a remedy to the disabled in a case with far less egregious discrimination, retaliation, and refusal to accommodate than mine (described in Docket Nos. 05-7287, 05-7771, and 11th Cir. Nos. 05-14259-J &05-15248-H). e.g., United States v. Space Hunters, Nos. 02-6313-cv(L), 04-6681-cv(XAP), 05-0481-cv(CON) (2d Cir. Nov. 9, 2005).
12.18.2005 4:19pm
Apodaca:
Quoth Robin Burk:
But [Mona] does NOT address the exception, namely when a citizen is acting as an agent for a foreign group attempting or planning terrorist attacks. FISA specifically allows, as I read it, surveillance in such cases without a FISA court warrant provided the attorney general states in writing etc. etc. as noted earlier.
You have overlooked 50 USC 1802(a)(1)(B), which says that for warrantless FISA surveillance the AG must determine that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."
12.18.2005 4:21pm
Apodaca:
Quoth Neal Lang:
Just how would the President, as Commander-in-Chief, address obtaining a warrant to record a telephonic conversation between al Qaeda operative "Y" in a foreign land (whose location and identity was unknown until he initiated the call) and a US resident "X" (citizen or otherwise - whose identity and location were unknown prior to their receiving the foreign terrorist's phone call).
Neal, you're asking an irrelevant question. POTUS has conceded that US citizens were targeted by the warrantless surveillance at issue -- that is, specific known US citizens were singled out.

Since you seem to think that invoking the practices of Hoover's FBI proves a point of constitutional law, however, I very much doubt your capacity to grasp the point I'm making.
12.18.2005 4:32pm
Robin Burk (mail) (www):
Haven't overlooked it at all, Apodaca - I quoted it. But I also quoted the passage regarding foreign agents.

It's my understanding that a finding that a citizen is acting as a foreign agent may (MAY) allow warrantless surveillance, provided the AG is willing to certify in writing that that is what's being asserted and done. In any case, if the communication being intercepted originated overseas, then it may be the case that the government CANNOT know if a US person is a party until it has in fact been intercepted and interpreted. This would quite possibly have been the case with the Brooklyn ring, in which both a naturalized citizen (Faris) and others who are NOT citizens shared an apartment (among other things).
12.18.2005 4:33pm
curious (mail):
Murky? I don't get what's murky about illegal wiretaps being illegal.

I understand that prosecuting individual incidents of illegal activity might have various problems here and there, but the rule against wiretapping without court authorization isn't the least bit murky is it?

--Really Curious
12.18.2005 4:48pm
Apodaca:
Quoth Robin Burk:
Haven't overlooked it at all, Apodaca - I quoted it. But I also quoted the passage regarding foreign agents. It's my understanding that a finding that a citizen is acting as a foreign agent may (MAY) allow warrantless surveillance, provided the AG is willing to certify in writing that that is what's being asserted and done.
Your understanding is mistaken. 50 USC 1802(a)(1)(B) prohibits targeting US persons under the warrantless surveillance authority. The other passage you quoted does nothing to alter that rule.

Specifically, the FISA definition of "US person" includes all US citizens, without exception. (You attempt to invoke the "foreign power" clause. Sorry -- that carves out only associations and corporations, and thus doesn't undercut the 1802(a)(1)(B) prohibition. Besides, are you really claiming that every one of the hundreds of US citizens surveilled without a warrant is an agent of a foreign power? If not, your attempted distinction is beside the point, because then you've conceded that non-AFP US citizens were the subjects of such surveillance.)
12.18.2005 5:08pm
Robin Burk (mail) (www):
Well, we'll see on the foreign agent issue. As I've said, I'm not a legal scholar - but neither is it obvious to me that the administration must have acted outside its legal authority on this. For instance, the definition of "foreign power" includes:

50 1801:

As used in this subchapter:
(a) “Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;


Notice it does not say "wholely", but rather "not substantially" -- a description that fits al-Qaeda and its subsidiaries well.
12.18.2005 5:29pm
elise (mail):
thanks for everyones informative feedback.
12.18.2005 5:31pm
subpatre (mail):
Apodaca claimed "Specifically, the FISA definition of "US person" includes all US citizens, without exception."
Absolutely, categorically untrue.

§ 1801. Definitions
(b) “Agent of a foreign power” means—
(1) any person other than a United States person, who—
(A).... ;
(B).... ;
OR
(2) any person who—
(A) knowingly engages in .... ;
(B) pursuant to the direction of ....knowingly engages in any.... ;
(C) knowingly engages in .... ;
(D) knowingly enters the United States .... ; or
(E) knowingly aids or abets .... .

It's crystal clear that ANY person who engages in (b)(2)(A) through (b)(2)(E) is an agent of a foreign power. Note that (2) supercedes (1), as intended. Also note that all the actions that can cast away the protection of being a "United States person" must be knowingly committed.
12.18.2005 5:44pm
Medis:
Neal,

I gave the example of Congress defining the crime of piracy and putting that crime in the UCMJ. Do you think the President could order the Navy to commit piracy despite Congress explicitly using this constitutional power?
12.18.2005 6:37pm
Medis:
subpatre,

That definition implies that a US person can be an agent of a foreign power. It does not imply that such a person is no longer a US person.
12.18.2005 6:40pm
Foreigner:
There are two things that bother me in the debate and that somehow cannot be mentioned enough here:

1) One of the basic tenets of the U.S. system (just like all western systems theses days) is the presumption of innocence. Unless A NEUTRAL COURT holds you to be connected to Al Quaida you are simply not (even if the president, the attorney general or the owner of the Washington Post or (for that purpose) the 49ers considers you to be connected to Al Quaida. Hence, conceptually, Bush allowed wiretapping innocent U.S. citizens.

2) The assertion of the administration that the wiretapping prevented terrorist attacks seems to be accepted complacently by almost all people posting here. Who can say that getting a court warrant for wiretaps would not have led to the very same success. I, for one, am utterly convinced that the procedure would have led to the VERY same success.

I concur with the others, though, that I really don't care whether it is the NSA, the FBI or the Hoboken country club that does the spying. Competencies are of less importance (maybe, though, the NSA was chosen because they are used to a "no limits" attitude...)

Hence we get the following result: Bush allowed wiretapping of innocent U.S. citizens for no good reason (except the fact that he, understandably, is insecure about what to do...). NO lives are saved, NO benefit is gained by the policy that would not be achieved via the traditional process.

I am amazed at how much the administration can get away with without an impeachment...
12.18.2005 7:12pm
gisselle (mail):
out of curiousity what if a u.s. citzen happen to speak about something illegal to a person overseas, and they recorded it could the GOV. hold that againest either partys.
Especially with the leak all out on the news I am sure it is having all these unaswered questions for the innocent and guilty citzens.... How does that get handled?
12.18.2005 7:34pm
Robin Burk (mail) (www):
There are an awful lot of assumptions raised to "fact" in that comment, foreigner. Among them:

- that a FISA warrant could have been acquired quickly enough to effectively exploit intelligence gained through interrogations, captured assets and/or overseas intercepts - an assumption I would challenge, given the nature of the information at stake in many cases.

- that a connection between, for instance, Faris and al-Qaeda was simply assumed rather than based on his *reception* of communications from al-Q members overseas - a basis that falls well within the FISA boundaries for warrantless surveillance thereafter, as I read it.

- that Faris was innocent, when he has admitted planning attacks on infrastructure here.

- that no lives have been saved - an enormous assumption for which you offer not one shred of evidence.

Pfah.
12.18.2005 7:35pm
gisselle (mail):
so nsa is connected to all


12.18.2005 7:49pm
Robin Burk (mail) (www):
gisselle, that is a huge assumption. The sheer volume of cell phone, email etc. traffic coming into and going out of this country daily voids the assumption that "NSA is connected to all".

It is not EASY to find the conversation or email that contains information about, say, an upcoming bomb attack even if you COULD physically monitor every electron that moves. (And THAT's harder than some might think.)

Think: needles in haystacks. What following the intel trail MIGHT let you do is try to figure out which haystacks should be monitored closely and maybe where in the haystack to begin looking.

That is why, when intel like a cell phone number or email address is obtained, it is time critical to use that information. Phone numbers, addresses ... these things can and do get changed often by terror networks. I understood Bush to say that in the cases where he authorized the warrantless taps, it was precisely because they had potentially exploitable info that could (and probably did, in some cases) become useless unless used quickly. Quickly as in hours, not days.

Like everyone else here, I don't know the details of these taps. I am not ASSUMING that all is well. But I do find the ASSUMPTIONS being made that these taps were illegal and perfidious to be ....

unfounded, among other things.
12.18.2005 7:57pm
Mary Katherine Day-Petrano (mail):
Humble Law Student, Josh, see what I mean? The Bush brothers imperial dynasty hands resounding defeat to disability rights, Florida HATES the ADA, and that is why it appears the Bush administration has abused secret domestic spying under the Patriot Act to ensure there is no disabled civil rights uprising against the "National Security" interests of the tax cuts for the wealthy while running a preppy War paid for by a genocide on America's disabled citizens.

Click on the link on How Appealing and read the entire story. At least that disabled person actually became a lawyer -- the entire State and Federal government of the Bush brothers' imperial reign of tyranny against the disabled has been arrayed against my ever achieving my dream.

Posted on How Appealing:

"Job dream fizzles for disabled lawyer; If he is employed, the state will not pay for someone to assist him with personal needs": The Orlando Sentinel today contains an article that begins, "Armed with a law degree from Florida State University and an offer to work as an assistant state attorney in Lake County, Aaron Bates was on the road to self-sufficiency despite being severely disabled almost from birth. But in a classic case of Catch-22, the state warned Bates last month that if he accepts the job, it will no longer pay for an attendant, without whom he cannot function."
Posted at 04:50 PM by Howard Bashman
12.18.2005 8:00pm
Humble Law Student:
I think much of the thrust of this conversation misses the more important point.

FISA limitations do not in and of themselves otherwise limit the President's constitutional war powers.

I recommend you all read this post from Hugh Hewitt (yes, I know he is definetely biased, but check out what he had before bashing it)



The main point is that FISA isn't and never was intended to set some outer bound on the President's legal authority to engage in such actions as part of his authority as CIC. So, any arguments based on FISA are rather irrelevant to the matter. Additionally, there is no such SCOTUS precedent that would directly indicate that what Bush had done is illegal. If anything, the SCOTUS precedent indicates that there is not some clear legal line and that Bush is well within his discretion. (He could just as easily chose not to do what he is doing, but there is no legal or Constitutional impediment either.)

I am just speaking to the legal/Constitutional issues, not to any normative arguments it raises.
12.18.2005 8:01pm
Humble Law Student:
Ugh, I can't ever get this darn link thing to work. To read Hugh's argument go to his site.

http://www.hughhewitt.com/
12.18.2005 8:02pm
subpatre (mail):
Medis - Nobody claimed they become a non-US person; rather they can forfeit the protections of US personhood by knowingly engaging in the listed activities.

Hence § 1806. Use of information states "Information acquired from an electronic surveillance conducted pursuant to this subchapter concerning any United States person may be used and disclosed by...." This information acquired is an impossibility if the claim (above) of absolute citizen immunity were true.

Further, § 1805. Issuance of order specifies when protections cannot be lost "the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment...."

It's fantasy that US citizens --no matter what their actions-- are absolutely immune from surveillance. The entire subchaper's shot full of such wording, and it's obvious that citizens MAY be surveilled. There are requirements (hurdles) that must be met before citizen surveillance, and you can argue about their height; but the statute has no brick wall.
12.18.2005 8:09pm
subpatre (mail):
Medis - Nobody claimed they become a non-US person; rather they can forfeit the protections of US personhood by knowingly engaging in the listed activities.

Hence § 1806. Use of information states "Information acquired from an electronic surveillance conducted pursuant to this subchapter concerning any United States person may be used and disclosed by...." This information acquired is an impossibility if the claim (above) of absolute citizen immunity were true.

Further, § 1805. Issuance of order specifies when protections cannot be lost "the target of the electronic surveillance is a foreign power or an agent of a foreign power: Provided, That no United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment...."

It's fantasy that US citizens --no matter what their actions-- are absolutely immune from surveillance. The entire subchaper's shot full of such wording, and it's obvious that citizens MAY be surveilled. There are requirements (hurdles) that must be met before citizen surveillance, and you can argue about their height; but the statute has no brick wall.
12.18.2005 8:09pm
Mary Katherine Day-Petrano (mail):
Oh, and I forgot to add, Florida deliberately engineered it voting machines and hard copy absentee ballots for the 2004 election to exclude disabled users of voice-recognition Speech-To-Text assistive technology (likely MANY developmentally disabled people) from VOTING IN THE PRESIDENTIAL ELECTION. I have standing to complain about this, also, since I was disenfranchised.

Query -- would this have changed the election outcome if the votes of this class of disabled had to be provided access and a count taken? And what if there is a 4 year statute of limitations on an ADA Title II challenge to the validity of that election on the basis of illegal ADA exclusion of a class of voters, and the ADA's Title II express conflict preemption provision might void as unenforceable Florida's State law procedures for challenging and closing the 2004 election vote? I am not suggesting I plan to make this challenge, only that I am not happy about being excluded from voting by reason of my disability, any more than the idea of Patriot Act may have been used against me on account of my ADA civil rights challenges.

See, by deliberate exclusion of African American voters in the 2000 election, and deliberate exclusion of a class of disabled voters in the 2004 election, Florida (the President's brother the Governor's State) has handed the President and his administration unbridled, unreviewable power with the ability to abuse this power to domestically spy on American citizens just for raising pesky ADA civil rights claims -- and in my case, it appears this abuse was used against myself and my family to inflict substantial harm just simply for being outspoken.

The most salient reason the Bush administration has to find my Federal ADA civil rights cases unpopular (motivational animus to collect domestic surveillance?), besides the rest of what I have stated in other posts, is the alternative assessment to standardized testing issue over California's and Florida's bar examinations and Florida's driver's license written testing in Supreme Court Docket No. 05-7771, which might have an effect on NCLB -- the primary tracking and weeding out device to exclude the disabled from all opporunities for which America has historically been justifiably famous.

While foreign terrorists, Saddam and al-Qaeda may well be legitimate enemies, and there is a need for Patriot Act as narrowly tailored to them, this Presidential administration appears to have many perceived and feared enemies to justify pretextual Patriot activities -- most notably those American citizens that would require federal funding like the disabled, Katrina victims, people needing winter home heating subsidies, pregnant women, school lunch children, and people without medical care that might "threaten" by calling into question the fiscal irresponaibility of the proposed tax cuts for the wealthy.

Doesn't this boil down to the bottom line of what kind of Country we want to live in? What kind of government we have? And whether or not there is the rule of law?
12.18.2005 8:26pm
Mary Katherine Day-Petrano (mail):
HLS, you say Bush was "well within his discretion." What about the mandatory nondiscretionary obligation for his administration not to use the Patriot Act and/or domestic surveillance to retaliate against a disabled American? 42 U.S.C. Sec. 12203 ("any person").
12.18.2005 8:28pm
enthymeme (mail) (www):
Oh dear, Mary has gone ballistic. Such a victim. Please get help. BTW, I read about two paragraphs of your torpor-inducing drivel before giving up, and even then I had toothpicks in my eyelids to keep from falling asleep. But two points.

1. No one is misusing "medico-legal" terminology you delusional cack. No one meant 'delusional' in its "medico-legal" sense. This was painstakingly explained to you, but apparently, the explanation has not penetrated your thick skull. If you want to construe the word in your idiosyncratic sense, that's YOUR problem. Stop whining. People call people 'delusional' all the time, in the sense that they are misled, or being willfully obtuse. This is common idiomatic usage which you perversely twist to construe as somehow mocking your disability. Duh.

2. You seem to exhibit some form of persecution mania, or at least mild paranoia that people are out to get you. This being a case in point: you think others are out to mock your disability when really, they arejust using the term 'delusional' in a quite idiomatic way completely removed from that intent. And yet you dedicate a multi-paragraph treatise to that purported slight. Zzzz!

So, let's recap: you are demonstrably 1. thin-skinned, 2. paranoid, and 3. you think the Feds are out to get you.

LOL.
12.18.2005 8:53pm
Medis:
subpatre,

Right, I agree that one can get a FISA warrant for US persons. 1806(a) limits the ways in which such information can be used. 1805(a)(3)(A) provides that one can't satisfy one of the requirements for getting such a warrant using only activities of the target protected by the First Amendment.

But the actual issue is whether one can conduct such surveillance without a FISA warrant.
12.18.2005 9:03pm
Mary Katherine Day-Petrano (mail):
enthememe, I may well seek a subpoena duces tecum to find out who you are there hiding behind your anonymous email id, since obviously you attack while not giving out your name, because you well know that is a clear and malicious violation of my federal rights under 42 U.S.C. Sec. 12203. In Florida at least, it is also a clear violation of Florida Bar Rules 4-8.4(d). FYI, I would not be a "victim" if California and Florida, and our Federal government cared a whit about enforceing disbaility rights under Title II of the ADA and ensuing Tennessee v. Lane means what it says.
12.18.2005 9:04pm
enthymeme (mail) (www):
Hahaha. Go right ahead.
12.18.2005 9:06pm
Mary Katherine Day-Petrano (mail):
You like to belittle and attack ad hominem, exactly the issue of cerntral concern -- does PAtriot Act &doemstic surveillance of American citizens infringe on civil rights. Maybe that why!!
12.18.2005 9:06pm
enthymeme (mail) (www):
I'm not American. And even if I were, your laughable invocation of 42 U.S.C. Sec. 12203 is just that - laughable. Don't drop out of law school just yet.

Apologies to everyone else for derailing this fascinating thread. I will strive to ignore the rantings of Mary from hereon now.
12.18.2005 9:13pm
Apodaca:
Subpatre writes:
Apodaca claimed "Specifically, the FISA definition of "US person" includes all US citizens, without exception."
Absolutely, categorically untrue.
You have a peculiar definition of "untrue." Here is the FISA definition of "US person" (from 50 USC 1801(i)):
(i) “United States person” means a citizen of the United States, [other categories not relevant here], but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.
How exactly is it "untrue" that this makes all US citizens "US persons" under FISA? (And please don't argue that membership in a described association/corporation takes a citizen out of the definition, because it doesn't say that. It says the association or corporation per se may be excluded.)

Really -- I'm curious to know how you avoid the plain meaning of this definition.

Oh wait, I see. Here's what you wrote in reply to Medis:
It's fantasy that US citizens --no matter what their actions-- are absolutely immune from surveillance.
Of course, nobody ever claimed that US citizens are "absolutely immune from surveillance," and I defy you to identify any such assertion. What I wrote is that FISA prohibits targeting US citizens for warrantless surveillance.

Do try to keep up.
12.18.2005 9:15pm
gisselle (mail):
robin burk you have a good point :)
12.18.2005 9:29pm
Apodaca:
Quoth Robin Burk:
Think: needles in haystacks.
The Framers understood this concept. Their term was "general warrant," and they disliked the idea so much they amended the Constitution to forbid it, as applied to U.S. citizens.
12.18.2005 9:36pm
Medis:
HLS,

So I read Hugh's post and the case he cites. I don't see how that case supports his proposition. That 1972 case is, of course, decided on the basis of the law before FISA was passed in 1978. In this case, the Court held that Congress intended to remain neutral on the President's national security surveillance when passing the relevant law (although it also held that the 4th Amendment did apply, which is a real problem for the searches in our discussion--but this is a digression).

But nothing in the Court's holding implies that Congress HAD to remain neutral about national security surveillance when passing surveillance laws. The Court just held that Congress DID remain neutral on this issue as of 1972. Of course, in 1978, Congress stopped being neutral when it passed FISA.

Similarly, in the exchange Hugh quotes from this case, no one says that it would be impossible for a statute to limit the President's powers in this area. They only say that they have no intention of either limiting or expanding those powers. Again, this simply does not address what they could do (although interestingly they do imply that they could not EXPAND his constitutional authority--but there is no such implication about regulating his authority).

Finally, Hugh states, "Statutes cannot add to or detract from constitutional authority." But that is obviously false as a general proposition. Whenever Congress passes a law, Congress changes the laws that the President is bound to faithfully execute. Of course, in the broadest sense, that is not really changing the President's authority as executor of the laws. But it certainly changes his authority as executor in the narrow sense, meaning that he now has a different set of laws to faithfully execute.

And that is precisely the problem with Hugh (and Neal's) argument. They seem to think that the President is not bound to faithfully execute the laws whenever he is acting as CIC. Nothing in the Constitution, however, suggests such a proposition, and the Supreme Court has never stated such a proposition either.
12.18.2005 9:44pm
Mary Katherine Day-Petrano (mail):
Ahh, enthymeme, that is the problem, you are not an American. Of course, that is the conundrum in the reason this whole Patriot Act domestic surveillance on American citizens infringing their civil rights is completely lost on you. A waste of time.

I suppose it doesn't matter if you have purposely availed your retaliation into FLorida over the internet then, does it? I asked my wise husband, an attorney, what to make of your inability to understand these issues of significant importance to Americans. He suggested you are spending too much time on this board during final exam week, and that maybe next semester it would help you to better understand these issues if you were to take a class in the ADA, federal courts, and conflict of laws the same semester. FYI, I have already graduated law school with a joint JD/MBA, and passed the California Bar Exam. (HLS, I will keep repeating the relevant core First Amendment concerns, I have to hear her offensive speech, I have to hear her offensive speech, I have to hear ...)

If you are not American, I suspect there is one weighty issue you DO understand -- the significance of conducting domestic surveillance on Americans in their home aboard a sailing vessel with an apparent nexus to an unlawful ADA retaliation by another Vessel Yacht on navigable waters.
12.18.2005 9:49pm
Humble Law Student:
Medis,

Good points. I agree with you in a sense on your point that of course the President has to faithfully execute the laws passed by Congress. However, I think you overstate your case.

The President does have certain powers that aren't subject to curtailment or elimination by Congress. Easy example, Congress could never abrogate the President's role as commander of the military, nor could Congress directly force the President to use one military strategy (only indirectly of course through the power of the purse).

I think Hugh's line of argument is similar. Congress can codify certain Presidential legal perogatives. However, just because they make some law relating to his War Power, that does not automatically mean that the President has no power beyond what Congress gives him under war powers (granted in certain spheres, yes, but not so much in his role as CIC).

So, I think that rather undercuts your main counter argument.
12.18.2005 10:25pm
Medis:
HLS,

I agree that Congress could not attempt to actually direct military operations. I also agree that the President can sometimes act without prior Congressional authorization (that proposition, of course, is indeed supported by the case Hugh cites).

But we are not considering either of those situations. We are considering a situation in which Congress has made a law of general applicability, FISA, and the mere fact that this law applies to the armed forces as well as ordinary citizens does not somehow undermine its validity. Indeed, the Constitution expressly gives Congress the power to make rules for the government and regulation of the armed forces (again as opposed to actually directing operations). Accordingly, the President is bound to faithfully execute this law, and this is true even when he acts as CIC.

Therefore, the President does not have the constitutional authority to order someone in the armed forces, or anyone else, to violate FISA, or the UCMJ, or any other applicable federal law. And that is because he is bound to faithfully execute the laws--even the laws which apply to the military.
12.18.2005 10:35pm
Humble Law Student:
Let me just throw this in as well.

What is completely absent from these conversations is the acknowledgment that we must be doing something right. We know that Al-Qaeda wants to attack us again, and they are probably doing everything they can to do so. Something must be working...

Before you all start flaming me, I do recognize the MANY rhetorical and logical weaknesses of that argument. I just wanted to make this point, because all too often the simple truth is does convey seems completely lost on many.
12.18.2005 10:37pm
Medis:
HLS,

What "simple truth" do you think survives the "logical weakness" of that argument?

For example, suppose I note that there were about 8 1/2 years between the first attack on the WTC and the 9/11 attacks. We are now a little over 4 years past the 9/11 attacks. So, does the fact that there has not been another such attack in those 4 years mean our efforts to prevent such attacks have been more effective than our pre-9/11 efforts?
12.18.2005 10:43pm
Robin Burk (mail) (www):
there were about 8 1/2 years between the first attack on the WTC and the 9/11 attacks

I'm not HLS nor do I necessarily align with his/her arguments, but it's probably worth throwing in the attempted attacks that were intercepted, such as the Y2K attack attempted from Canada into Washington state. And if you add attacks on US soil in the form of embassies, and against the USS Cole, the roster grows longer and more complicated.

But what I wanted to respond to myself was Apodaca's term was "general warrant," and they disliked the idea so much they amended the Constitution to forbid it, .

Indeed - and rightly so. But there's a difference between an uninformed fishing expedition and having part, but not all, of the picture. That's why warrants for wiretapping are issued for domestic law enforcement from time to time.

The issues comes back, as we all recognize, to the question of whether and when FISA allows intercepts without warrant on citizens in the context of acting as foreign agents. And I don't think we are going to get closure on that issue here. Hewitt's additional assertion, namely that FISA is not the only basis for the taps that were made, is beyond my writ to address.

I do want to note one thing, however. I'm quite aware of the potential for abuse of surveillance. As Cold Warrior noted, there is a balance to be struck between the need to act in the face of potential imminent attack and the abrogation of civil liberties when such attack is no longer so imminent. Where that balance point should be is a judgement that will depend very much on one's assumptions about the likelihood and likely severity of such attack. I rather suspect few of us here have the data on which to base a truly informed opinion about that, with regard to the taps in question at any rate.

What I objected to in the thread as I was reading it, and in the NYT article in question, was the automatic assertion that illegal surveillance had been committed. It may yet turn out that that is true, but there is at least a decent basis (as I understand it) for arguing that the particular intercepts were both legal and done with accountability to Congress, in balance with the need for secrecy. We'll see what emerges over time as to the rest of it.
12.18.2005 10:54pm
Jam (mail):
A brief parenthesis in all the great posts.

The POTUS IS NOT my Commander in Chief. The POTUS IS NOT Commander in Chief of the civilian (ie non-military) population.


Article 2, Section 2: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Serviceof the United States


So quit saying that the POTUS is CiC in a general sense.
12.18.2005 10:57pm
Medis:
Robin,

I agree that terrorist attacks on US property or personnel outside the US should count as well. In fact, I'd also add terrorist attacks on our allies to this list. Of course, once one does so, the number of terrorist attacks has gone up dramatically after 9/11, and particularly since the invasion of Iraq.

So, the only plausible "simple truth" that HLS could have been referring to is preventing successful attacks inside the US ... and we really don't have much of a baseline against which to compare the gap between 9/11 and now.

Incidentally, I might note that to my knowledge, no one actually speaking for the Administration on this issue has actually claimed that all of this surveillance was authorized by FISA. Such people have claimed that it was all legal and constitutional, but that is consistent with the theory that they believe that the 2001 AUMF and the Constitution itself authorized the President to order surveillance that would not be authorized under FISA alone.

So, I am not sure there is in fact any issue with respect to whether the President ordered surveillance that was not authorized by FISA. I realize some in the blogosphere are making that argument, but I think it is potentially telling that only people outside the Administration currently are doing so ... and they are really not in a position to know what the President actually ordered.
12.18.2005 11:09pm
Robin Burk (mail) (www):
Understood. At any rate, I am not. ;-) However, Yahoo news suggests that congressional critics raised FISA as an/the issue, so it's more than a blog meme.
12.18.2005 11:20pm
Medis:
Robin,

I'm not saying the FISA issue was originally raised in the blogosphere. Indeed, the FISA issue was raised in the original NYT article.

My point was that to my knowledge, no one in the Administration has actually claimed that all of this surveillance was authorized by FISA. And since that issue was raised in the NYT article, and is being raised in Congress, the fact that the Administration has not claimed FISA authorization suggests to me that at least some of the surveillance was not in fact authorized by FISA.

Of course, maybe it was in fact all authorized by FISA, and they just haven't made the argument yet. But given that they have not been completely silent on the general issue, and this specific issue has been raised from the beginning, it would strike me as very odd if they had such an argument available but did not make it.
12.18.2005 11:29pm
Mary Katherine Day-Petrano (mail):
HLS, when you are talking about the President's war powers, Congress making a law is one thing, but there is a limitation when the President and Senate ratify a treaty. That is the whole problem the President has gotten into with torture. And he has a propensity to use executive orders.
12.19.2005 12:45am
Humble Law Student:
Mary,

Granted. I'm not meaning to tread into the legality/illegality of the "torture" issue. At least not in this post.
12.19.2005 1:00am
Foreigner:
Robin,

sorry for the late answer. I agree that in some cases time is essential. In those cases, why not get a warrant AFTER the wiretap to authorize it (and show that time was essential)? It seems to me that this would be doable under current CrimPro (forgive me if my bar exam knowledge of CrimPro is starting to be somewhat shady)

As to your example of a real terrorist I find it somewhat unfair. I do not challenge the assumption that the NSA finding of Al Quaida connections is sometimes right. But why not take as an (equally unfair) example the entirely innocent German citizen abducted by the CIA on the rather sad bases that his name happened to be similar/identical to that of a terrorist? The NSA will get it right at times and wrong at times. That's why we usually demand warrants. Where time is essential a warrant can be sought ex post facto. The burden of proof that this cannot be done is entirely on the Bush administration and so far I have not seen anyhting convincing. Logically, I do not see why getting a warrant after a wiretap would delay the procedure. And I do not understand why getting a warrant from a more or less secret tribunal would endanger national security.
12.19.2005 4:59am
snead16 (mail):
Neal Lang said:

"Hmmm! Interestingly I can find no Article prohibiting it [suspending the 4th Amendment's protections], either. Go figure!"

Your view of the constition, apparently, is that every provision is no more than a hood ornament, subject to the executive's whim of deciding to follow or ignore it.

By the way, you must know that there's nothing in the Constitution prohibiting Congress from limiting the executive's CIC power. Go figure.

And there's nothing in the Constitution prohibiting the suspension of elections, either. Go figure.

But if you're serious in your views, we live in a dictatorship. Not much more needs to said than that.

Because, there's nothing to prevent the President from suspending elections -- as Neal Lang insightfully opines, "I can find no Article prohibiting it" -- Bush can just continue on as our President till the war's over.

Don't get bogged down in that pesky 22nd Amentment limiting presidents to 2 terms.

As Mr. Lang observed about the 4th Amendment and spying without warrants, "I can find no Article prohibiting it" -- the "it" being the sitting president suspending the limitation under his CIC power.

So there it is. The CIC power allows the president to suspend every provision of the Constitution in time of war.
12.19.2005 6:27am
Medis:
Foreigner,

1805(f) actually provides explicitly for such emergency surveillance. Basically, the conditions are that the facts have to be such that they are entitled to a FISA warrant, they have to inform a judge at the same time that they are doing it, and they have 72 hours to get approval.

Frankly, the only reason I can see why they would not have been using this procedure for emergency situations is if they wanted to conduct surveillance for which they could not get a FISA warrant even if they had enough time.
12.19.2005 6:32am
ADB:
Foreigner pretty much sums up my point of view. Good post Foreigner. I am just not convinced that procedures in FISA delays surveillance, especially since the NSA can just get a warrant after conducting the surveillance.
12.19.2005 6:49am
ADB:
"Frankly, the only reason I can see why they would not have been using this procedure for emergency situations is if they wanted to conduct surveillance for which they could not get a FISA warrant even if they had enough time."

Makes you wonder, in what situations which threaten national security, couldn't they get a warrant for under FISA? Also, makes you wonder if the "war on terror" is just a pretext for allowing President Bush to gain this surveillance power.
12.19.2005 6:55am
Mary Katherine Day-Petrano (mail):
This morning Atty Gen. Gonzalez is saying the Prsident can domestically surveil American citizens who might simply be rainsing civil rigths claims under the President's inherent authority deriving from CIC and Congress' passage of a military authorization statute. So does THIS mean civil rights are being violatd by military authrotiy? Within the United States against United states citizens? I really have a problem with this. My husband has a young daughter in law school in Scotland, now studying elsewhere in Europe for a year, does that qualify for the international-US connection? And then alls the President has to do to domestically spy on civil rights American citizens is find some bare association with a "National Security threat" -- e.g., disability rights costs threat to the tax cuts for the wealthy -- and bingo, the domestic surveillance (and apparent misuse of the fruits) is "authorized" und Presidential inherent authority. No nexus need be shown between the internation conection &the pretextual "National Secutiry threat." Wow. That would even fail almost any causal analysis on almost any law school exam.
12.19.2005 7:15am
subpatre (mail):
Apodaca wrote: What I wrote is that FISA prohibits targeting US citizens for warrantless surveillance.
Apologies if the warrantlessness was assumed in my post.

The point was that you appear to have read the first part of §1802 and assumed (incorrectly) that the reference to US persons --including citizens-- means that they have blanket immunity. This assumption is, as far as I can tell, based on a binary assumption that any individual can only be a US citizen or a foreign agent; a US person or some other person, etc. That's an incorrect reading.

The FISA is full of references to persons who are "United States persons" and surveilled as an "agent of a foreign power"; to the disposition of surveillance material of "United States persons" obtained without warrant; etc. These aren't authorizations, but acknowlegements that FISA doesn't cover many situations.

In Orin Kerr's reference, the Court determined Fourth Amendment warrant exceptions apply when:
The US citizen was acting as an agent of a foreign power;
second, that the searches in question were conducted "primarily" for foreign intelligence purposes;
and finally, that the searches were authorized by the President or the Attorney General.

"Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980)."

"There was an awareness that El-Hage, who was believed to be an important agent of Bin Laden, was an American citizen and that he could not be targeted for surveillance absent authorization form [sic] the Attorney General." No 'warrant' or 'court order'; just the authority of the President or designee.

American citizens (knowingly engaged in, aiding, abetting of foreign powers) most certainly may be legally surveilled without a warrant.
12.19.2005 7:41am
Henry Bowman:
snead16:


So there it is. The CIC power allows the president to suspend every provision of the Constitution in time of war.


Well, gosh, Mr. Lincoln did so repeatedly, and he is revered by many.

I am utterly amazed by the number of comments basically stating that the government is to be trusted "because it's protecting us". What complete rubbish! The government doesn't give a rat's ass whether we live or die; its only interested in protecting itself. Mr. Bush, like Mr. Lincoln before him, finds that pesky Constitution, with it's horrible Bill of Rights, to be a real nuisance, so he just doesn't bother to adhere to its provisions. But don't worry, we can trust ole George cuz he's a good Republican - he wouldn't burn people alive like that awful Democrat Janet Reno, would he? Or permit FBI snipers to shoot unarmed civilians -- oops, that ole Republican George H. W. Bush did just that!

Seriously, you folks who don't want your liberties, please seriously consider moving to some facist state such as Tony Blair's UK!
12.19.2005 7:49am
Apodaca:
Jim Subpatre wrote:
The point was that you appear to have read the first part of §1802 and assumed (incorrectly) that the reference to US persons --including citizens-- means that they have blanket immunity. This assumption is, as far as I can tell, based on a binary assumption that any individual can only be a US citizen or a foreign agent....
Jim, you're confused. Here's the relevant logical sequence summing up my prior posts:

- US citizens are "US persons" under FISA

- FISA specifically prohibits targeting "US persons" for surveillance without a warrant, regardless of whether those persons are also "agents of a foreign power"

Ergo, US citizens may not be intentionally surveilled (that is, targeted) under FISA except with a warrant.

The "binary" confusion is yours. I have never asserted that a US citizen cannot be an agent of a foreign power. I have never asserted that they have blanket immunity from FISA surveillance. These are fanciful inventions of your overactive imagination.

By the way, citing Judge Sand's decision concerning the monitoring of El-Hage doesn't prove your point. El-Hage was overseas, where a) FISA doesn't apply and b) the Fourth Amendment affords weaker protection to US citizens. I remind you that the Administration's recently disclosed surveillance program targeted US citizens here within the US, where FISA and the Fourth Amendment are fully applicable.
12.19.2005 9:24am
Smithy (mail):
Why should anyone care about having their phone calls monitored unless they are doing something illegal to begin with? They can listen to my phone calls all they want.
12.19.2005 9:35am
Neal Lang (mail):
So there it is. The CIC power allows the president to suspend every provision of the Constitution in time of war.

Exactly! Now you are getting it. One need only to refer to the history of the Civil War - the only time since the Revolutionary War that the survival of our Nation was in peril. President Lincoln did what was necessary to insure the salvation of the Union. This included the suspension of certain "civil rights" of US citizens, both in the States that remained loyal to the Union and those in Rebellion. Lincoln was overwhelmingly re-elected by the American people - obviously they felt his efforts as CIC did not reach the level of tyanny. Go figure!
12.19.2005 9:36am
Medis:
subpatre,

I honestly do not understand your argument. Under FISA, a person clearly can be both an agent of a foreign power and a United States person. And under FISA, the government can get a warrant to conduct surveillance of such a person in the United States. And also under FISA, the government can conduct emergency surveillance of such a person in the United States without a warrant, but only under the conditions I mentioned above (the facts must be such that they could have gotten a warrant, they must notify a judge at the same time, and they must get authorization within 72 hours).

But you seem to think FISA allows for surveillance of a United States person in the United States without a warrant and without meeting the emergency conditions. I just don't see any authorization in FISA for anything like that, and all the FISA provisions you have cited are consistent with the framework we have outlined.

Incidentally, I note that this morning, AG AG is not claiming that this program was authorized by FISA. Rather, he is arguing that it was authorized by the 2001 AUMF. So, at this point, I really doubt there is any plausible argument that this program was authorized by FISA.
12.19.2005 9:37am
Beetle Bailey (mail):
We're at war, says the president.

We must save the Constitution. Our Freedom. Our way of life.

As your Commander in Chief, here's what I'll do.

SUSPEND THE CONSTITUTION. EVERY LAST BIT OF IT.

NO MORE CONGRESS. MAY ASK QUESTIONS.

NO MORE ELECTIONS. MAY VOTE ME OUT.

NO PRESIDENTIAL TERM LIMITS. (IN CASE RULE 2 DOESN'T WORK.)

WHAT I SAY GOES. THAT'S WHAT BEING COMMANDER IN CHIEF IS ALL ABOUT.
12.19.2005 9:57am
Medis:
Neal,

A hypo for you: a captain of a ship in the Navy orders one of his crew to rape someone, which Congress has made a crime under the UCMJ. Is this a lawful order? And if it is not a lawful order, does that mean Congress is trying to direct the operations of the captain's ship?
12.19.2005 10:06am
Henry Bowman:
Neal Lang writes

...Lincoln was overwhelmingly re-elected by the American people - obviously they felt his efforts as CIC did not reach the level of tyanny. Go figure!...



Sorry, but Mr. Lenin Lincoln was NOT overwhelmingly re-elected; he had to give special permission to many in the army to go home to vote in order to get re-elected. And, he was not saving the nation, but pretty much destroying the republic. He was, however, better at destruction that Mr. Bush has been, at least thus far.
12.19.2005 10:06am
Robin Burk (mail) (www):
Foreigner, re: warrants after the fact, there is some evidence that there was a later review of the taps by the FISA court, which accepted some of them, required the evidence collected by others to be discarded when arguing for further warrants and clarified guidelines for future intercepts.

Given that that review happened, that it had an impact on practices and that Congressional leaders were informed throughout the process, I am provisionally content that the net impact of this was not a major abrogation of civil liberties for US citizens or an abuse of powers and that in fact it seems likely to have been a reasonable and responsible course of action at the time.

Cold Warrior's comments above about the sense of imminent threat in the period after 9/11 are worth keeping in mind. War and the threat of additional attacks create a chaotic environment and one in which there are always more demanding issues to be decided than there is time to do so reflectively. That should not be used to cover deliberate abuse, but to demand rigid perfection as defined by hindsight is, I think, to render likely the possibility that the actual workings of the government would come to a halt at a critical time.

I offer that as a thoughtful citizen who has some insight into the actual experience of making potentially far-reaching decisions under conditions of uncertain information and major threat. Whatever else our legal system should do, it should not pursue a sterile academic definition of 'liberty' to such a degree that it makes it virtually impossible for elected officials to exercise reasonable and responsible judgements under pressing circumstances and in the face of uncertainty about facts. Not when the stakes might be very high indeed.

OTOH, of course, such circumstances are NOT normal and this should not be read as saying - nor do I hear the Bush administration arguing - that there should be no accountability or restraints in general.
12.19.2005 10:20am
Jam (mail):
Smithy. Sign a document giving permission to the government to listen to your conversations.

I have nothing to hide and I object to you or anyone else listening to my conversations.

You put the manacles on your own children. Levae mine alone.

There are too many sheeple among us.
12.19.2005 10:41am
Ditty:
OK, as a former collection operator (morse), I know a little bit about this subject from the chair of one who was tasked with collecting this stuff.

It has always been my understanding that the collection of purely domestic communications (beyond that needed to indentify the signals as purely domestic, ie., between US Persons as defined) without a warrant is very bad juju. It has also been by understanding that collection of strictly foreign communications is completely legal.

Now, as for mixed (US Person with a foreign entity), it was also my understanding that this was legal, but that you had to be sure that at least one side of the conversation was not a US Person.

From the perspective of the Cold War, this would make sense because you would want to be able to intercept the communications of a spy in the US transmitting information to a foreign country. Even if those intercepts couldn't be used in court, they can be used to indentify and mitigate the damage from a spy, saboteur, or terrorist.

Besides which, I read FISA as saying the following:

(b) “Agent of a foreign power” means—

(1) any person other than a United States person, who—
...
or

(2) any person who—

...
(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;


That means that a person who is knowingly supporting terrorism is not considered a 'US Person' under the statute.
12.19.2005 10:43am
Medis:
Robin,

But the precise problem is that FISA already deals with emergency situations, and has a procedure in place the government is required to follow. But apparently the Administration decided not to follow those procedures, and it has apparently renewed this decision many times since 2001.

So this is not just a snap judgment made in response to an unforeseen emergency situation. Rather, this appears to be a deliberate decision to replace FISA's emergency procedures with procedures of the President's own making, supposedly on the basis of his constitutional authority and the 2001 AUMF.

And I really do not see how that argument is bounded. If the 2001 AUMF implicitly repealed or amended FISA as the President sees fit, is there any federal law not subject to the same treatment? If the Constitution allows the President to ignore his duties to faithfully execute FISA whenever national security is at stake, is there anything he cannot legally do in the name of national security?

So you say they are not arguing that they should be free from all accountability and restraints ... but if FISA isn't a valid restraint, exactly what is?
12.19.2005 10:50am
Medis:
Ditty,

Again, all that provision says is that a US person can be an agent of a foreign power. No one doubts that. But you seem to be assuming that once you are an agent of a foreign power, you cannot be a US person. And nothing in FISA says that.

I also don't see how FISA supports your contention that the FISA procedures do not apply as long as one of the people involved is not a US person. Just the opposite: FISA clearly provides that if the communications are intercepted in the United States, and they are to or from a US person, the FISA procedures apply. Who is on the other end does not matter for the purposes of the relevant definitions.

Again, though, you can get a FISA warrant for such a situation. The whole problem is that people seem to think FISA allows warrantless searches whenever a US person is suspected of being an agent of a foreign power. Rather, the entire idea of FISA is to require the government to get a warrant if they want to make that claim.
12.19.2005 10:58am
Apodaca:
* sigh *

Ditty, I have a suggestion: why don't you look at the FISA definition of "US person" (and not "agent of a foreign power") to see how "US person" is defined? Just a thought.

The misreading you've fallen prey to is dissected at paralyzing length in the comments above.
12.19.2005 11:00am
Neal Lang (mail):
Since you seem to think that invoking the practices of Hoover's FBI proves a point of constitutional law, however, I very much doubt your capacity to grasp the point I'm making.

The point is that in time of war the "civil rights" of enemy agents are quite nebulous. Amazingly, there was no sabotage during WWII, under Hoover's watch, despite a massive German effort. Also, the Abwehr was unable to obtain current and reliable intelligence from the US once war was declared. Of course, the declaration of war impacted the "civil rights" of all US residents, including citizens, working against this country for the Nazis. Two (Ernest Peter Burger and Herbert Hans Haupt) of the 8 German saboteurs infiltrated into the US during the war were US citizens. That fact didn't prevent the suspension in their case of Habeas Corpus, along with their right to "indictment by grand jury" under the 5th Amendment, and in a "trial by jury", under Article II. Section 2. and 6th Amendment of the Constitution. All eight were found guilty by a Military Commission and sentenced to death. Two (including Burger) had their death sentences commuted (on an appeal from Hoover to the President). The two who had their death sentences commuted apparently "co-operated" with the "prosecution", testifying and giving evidence against themselves and their comrades. As this was pre-Maranda, it cannot be said that they were denied their 5th Amendment rights to have their attorney present for their questioning.
12.19.2005 11:02am
Neal Lang (mail):
Sorry, but Mr. Lenin Lincoln was NOT overwhelmingly re-elected; he had to give special permission to many in the army to go home to vote in order to get re-elected. And, he was not saving the nation, but pretty much destroying the republic. He was, however, better at destruction that Mr. Bush has been, at least thus far.

I suppose it depends on your definition of "overwhelming". To my way of thinking winning OVER 90% of the electorial vote fits the definition of overwhelming. BTW, why on Earth would you object to insuring the "franchise" of US Military? I cannot find any Constitutional prohibition to such. Maybe you could point it out? Considering the huge percentage of the electorate mobilized by the Civil War, I would think it prudent to insure their vote was counted. I can't imagine why this should bother you! Of course, Mr. Lincoln saved both the Nation and the Republic.
It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us. . .that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion. . . that we here highly resolve that these dead shall not have died in vain. . . that this nation, under God, shall have a new birth of freedom. . . and that government of the people. . .by the people. . .for the people. . . shall not perish from the earth. Gettysburg Address
12.19.2005 11:22am
Ditty:
Medis:
Just the opposite: FISA clearly provides that if the communications are intercepted in the United States, and they are to or from a US person, the FISA procedures apply.

Do you really think that the only interception facilities that the US has are in the United States?

What if, for a completely fictional example, we had a station on the Island of Sodor (Sir Top'em Hat helped us build it, and gets information from it also) to intercept communications routed via satellite to and from Europe. Those calls are then not intercepted in the US.

Apodaca:
* sigh *

Ditty, I have a suggestion: why don't you look at the FISA definition of "US person" (and not "agent of a foreign power") to see how "US person" is defined? Just a thought.

The misreading you've fallen prey to is dissected at paralyzing length in the comments above.


I know how a US person is defined. I also worked under this particular law for years, and I am telling you how it has always been applied, to the best of my knowledge. I must say, if I have fallen prey to a particular misreading, then so have a quite a number of other people, for quite a number of decades.

If you want specifics as to what I did, I was a US Army 05H Electronic Warfare Signals Intelligence Morse Interceptor. Day in and day out, my job was to intercept communications. So this particular law was of more than academic interest to me, and lets just say that I have a working understanding of the parameters.
12.19.2005 11:24am
Robin Burk (mail) (www):
But the precise problem is that FISA already deals with emergency situations, and has a procedure in place the government is required to follow. But apparently the Administration decided not to follow those procedures, and it has apparently renewed this decision many times since 2001.

That's a bit disingenuous, Medis, as it ignores the reviews and adjustments that were made along the way, as I noted above - which specifically included post-hoc review by the FISA court, if not post-hoc warrants - whose requirement is (Apodaca notwithstanding) open to argument.

To repeat what I said earlier, none of this is intended to give the Administration a carte blanche for domestic surveillance or to assert that all was necessarily hunky dory with their collection efforts. Clearly the FISA judge thought that some of their collections were out of bounds and she refused to accept the intel as the basis for subsequent warrants. And clearly the Justice department reviewed and adjusted guidelines as a result of that review.

OTOH, what Orin's post and the NYT article attempt to portray is a reckless, unaccountable surveillance effort against large numbers of US citizens. And I have to say that I am deeply unimpressed by that picture based on what I do know about FISA, on the circumstances at the time and - of some weight with me - on the fact that there was oversight, review, modification and Congressional awareness of these efforts on an ongoing basis.
12.19.2005 11:30am
Neal Lang (mail):
Ditty, I have a suggestion: why don't you look at the FISA definition of "US person" (and not "agent of a foreign power") to see how "US person" is defined? Just a thought.

The misreading you've fallen prey to is dissected at paralyzing length in the comments above.

I don't believe the Supremes "misread" the Law when they ruled - specifically on point, to wit:
50 U.S.C. § 1805(a)(3). As is apparent, the definitions of agent of a foreign power and foreign intelligence information are crucial to an understanding of the statutory scheme.8 The latter means

(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against–

A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or

C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power.
Id. § 1801(e)(1).9

The definition of an agent of a foreign power, if it pertains to a U.S. person (which is the only category relevant to this case), is closely tied to criminal activity. The term includes any person who “knowingly engages in clandestine intelligence gathering activities . . . which activities involve or may involve a violation of the criminal statutes of the United States,” or “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor.” Id. §§ 1801(b)(2)(A), (C) (emphasis added). International terrorism refers to activities that “involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State.” Id. § 1801(c)(1) (emphasis added). Sabotage means activities that “involve a violation of chapter 105 of [the criminal code], or that would involve such a violation if committed against the United States.” Id. § 1801(d). For purposes of clarity in this opinion we will refer to the crimes referred to in section 1801(a)-(e) as foreign intelligence crimes.10

Conclusion

FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.... Accordingly, we reverse the FISA court’s orders in this case to the extent they imposed conditions on the grant of the government’s applications, vacate the FISA court’s Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.

8 Foreign power is defined broadly to include, inter alia, “a group engaged in international terrorism or activities in preparation therefor” and “a foreign-based political organization, not substantially composed of United States persons.” 50 U.S.C. §§ 1801(a)(4), (5).
9 A second definition of foreign intelligence information includes information necessary to “the national defense or the security of the United States,” or “the conduct of the foreign affairs of the United States.” 50 U.S.C. § 1801(e)(2). This definition generally involves information referred to as “affirmative” or “positive” foreign intelligence information rather than the “protective” or “counterintelligence” information at issue here.
10 Under the current version of FISA, the definition of “agent of a foreign power” also includes U.S. persons who enter the United States under a false or fraudulent identity for or on behalf of a foreign power. Our term “foreign intelligence crimes” includes this fraudulent conduct, which will almost always involve a crime. From: UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW - Argued September 9, 2002 Decided November 18, 2002 - In re: Sealed Case No. 02-001 - Consolidated with 02-002 - On Motions for Review of Orders of the United States - Foreign Intelligence Surveillance Court (Nos. 02-662 and 02-968)

* sigh *

"Don't you just love it when a plan comes together?"
12.19.2005 11:54am
Jam (mail):
No, Lincoln did not save anything. Lincoln destroyed the Republic and gave birth the "the Nation."

As for Lincoln's Gettysburg Address, a marvel in deception. Who, but the people of the Southern States were the one's that were seeking their own self-determination? Who were the one's denying it?

Lincoln, what an example of how to do things ... NOT!

Sic Semper Tyrannis
12.19.2005 12:08pm
Jam (mail):
And the Marxist historiography moves on.

Too many today love to lick the hands of their masters. Liberty is dying and too many are willing to place the pillow on its face.
12.19.2005 12:11pm
Neal Lang (mail):
A hypo for you: a captain of a ship in the Navy orders one of his crew to rape someone, which Congress has made a crime under the UCMJ. Is this a lawful order? And if it is not a lawful order, does that mean Congress is trying to direct the operations of the captain's ship?

I believe that under the Nuremberg precedence, the Captain's order, being both illegal and immoral, is of no weight. Should the crew member obey the captain's order, both the captain and the crew member would be equally guilty. As I recall, a similar case took place in Iraq's Abu Ghraib Prison, where both those issuing illegal orders and the soldiers carrying them out were properly subject to sanctions under the UCMJ.

Of course, the relevance of "felony rape" to the conduct of the "War on Terror" or the "good order" in running a ship of the US Navy alludes me - perhaps you might be kind enough to make the connection for me?
12.19.2005 12:16pm
subpatre (mail):
The problem is Apodaca's wishful thinking that "United States person" means a person of the United States, or in the United States, or who can pronounce 'United States'; depending on how badly the President must be bashed.

"United States person" is a classification absent the other classifications; like "foreign power" or "agent of a foreign power".

There's a long string of precedent, some upholding the government and some not, some pre-FISA and some post-, that makes clear the governments ability to monitor American citizens without a warrant in situations of grave security.

United States District Court (Keith ), 407 U.S. 297, 321- 22 (1972)
United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970)
United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973)
United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974)
United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977)
United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980)
United States v. bin Laden, 126 F.Supp.2d 264 (S.D.N.Y. 2000)

"Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. " US FIS Court of Review, In re: Sealed Case No. 02-001
12.19.2005 12:42pm
Medis:
Neal,

My point is quite simple. It is not "directing the operations" of the Captain's ship to make rape a crime under the UCMJ. And the fact that the Captain is unquestionable the commander of his ship does not somehow imply that he can lawfully order someone to commit a crime defined in the UCMJ.

And similarly, it is not "directing the operation" of the "war on terror" to make violating FISA a crime. And also similarly, the fact that the President is commander of all the armed forces does not somehow imply that he can lawfully order someone in the armed forces to violate FISA.
12.19.2005 1:06pm
Medis:
subpatre,

Do you have a case saying the President can order someone to violate FISA?
12.19.2005 1:08pm
Neal Lang (mail):
Sic Semper Tyrannis

Ah, how Marxist of you - assassination trumps election. BTW, the Nation was "birthed" by the Declaration of Independence in 1776. That document reflected our Founders' belief that "that governments long established should not be changed for light and transient causes", such as, losing Presidential elections. Too bad the folks of Georgia, Florida, South Carolina, Mississippi, Alabama, Arkansas, Louisiana, and Texas didn't understand this, as their "Proclamations of Secession proclaim". See: Alabama Secession Ordinance as an example:
Ordinance Of Secession Of Alabama
(Passed In The State Capitol At Montgomery On 11 January 1861, By A Vote Of 61-39.)
AN ORDINANCE
to dissolve the Union between the State of Alabama and other States united under the compact styled "The Constitution of the United States of America."

WHEREAS, the election of Abraham Lincoln and Hannibal Hamlin to the offices of President and Vice-President of the United States of America, by a sectional party, avowedly hostile to the domestic institutions and to the peace and security of the people of the State of Alabama, preceded by many and dangerous infractions of the Constitution of the United States by many of the States and people of the Northern section, is a political wrong of so insulting and menacing a character as to justify the people of the State of Alabama in the adoption of prompt and decided measures for their future peace and security;
therefore, Be it declared and ordained by the people of the State of Alabama in Convention assembled, That the State of Alabama now withdraws, and is hereby withdrawn from the Union known as "the United States of America," and henceforth ceases to be one of said United States, and is, and of right ought to be, a Sovereign and Independent State.

Section 2. Be it further declared and ordained by the people of the State of Alabama in Convention assembled, That all the powers over the Territory of said State, and over the people thereof, heretofore delegated to the Government of the United States of America, be and they are hereby withdrawn from said Government, and are hereby resumed and vested in the people of the State of Alabama. And as it is the desire and purpose of the people of Alabama to meet the slaveholding States of the South, who may approve such purpose, in order to frame a provisional as well as permanent Government upon the principles of the Constitution of the United States,

Be it resolved by the people of Alabama in Convention assembled,
That the people of the States of Delaware, Maryland, Virginia, North Carolina, South Carolina, Florida, Georgia, Mississippi, Louisiana, Texas, Arkansas, Tennessee, Kentucky, and Missouri, be and are hereby invited to meet the people of the State of Alabama, by their Delegates, in Convention, on the fourth day of February, A.D. 1861, at the city of Montgomery, in the State of Alabama, for the purpose of consulting with each other as to the most effectual mode of securing concerted and harmonious action in whatever measures may be deemed most desirable for our common peace and security.

And be it further resolved, That the President of this Convention be, and he is hereby, instructed to transmit forthwith a copy of the foregoing Preamble, Ordinance, and Resolutions to the Governors of the several States named in said resolutions.

Done by the people of the State of Alabama, in Convention assembled, at Montgomery, on this, the eleventh day of January, A.D. 1861.

Note the date this was enacted - seeing as how Mr. Lincoln was not inaugurated until March 4, 1861, no "presidential act" of his part could have been construed to have affected their "peace and security". Also conspicuous by its absence is any listing of the alleged "many and dangerous infractions of the Constitution of the United States", a' la the Declaration of Independence. Obviously, the mere fact that they lost a democratically held a election was sufficient cause, in their minds, to break the covenant they had sworn with the Union. This meets the definition of "light and transient causes" rather than the requisite "long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism".
12.19.2005 1:11pm
Neal Lang (mail):
And similarly, it is not "directing the operation" of the "war on terror" to make violating FISA a crime.

You are assuming that the President did, in fact, violate said law in carrying out his duties a Commander-in-Chief in securing "the People" from acts of terrorism. It appears that the Supremes don't believe he has (See: My Cite Above). Now, if you can provide any case where the CIC ordered a captain of a US Navy vessel to have someone raped, in furtherence of the conduct of the War on Terror, I would love to see your cite! If not, I believe I answered your rather silly hypothetical above quite adequately.
12.19.2005 1:25pm
Neal Lang (mail):
OTOH, what Orin's post and the NYT article attempt to portray is a reckless, unaccountable surveillance effort against large numbers of US citizens.

Personally, based on the article's timing, circumstances, and obvious inaccuracies (considering what is easily available on the truth of the matter), that the NYT efforts to sabotage the War on Terror, borders on at least "aid and comfort to the enemy".
12.19.2005 1:33pm
Medis:
Neal,

I agree that you gave a proper answer to my hypo. And what your answer implies is that Congress can make laws of general applicability without that meaning they are attempting to direct operations.

And FISA is no different: it no more contradicts the President's Commander in Chief powers than making rape a crime in the UCMJ contradicts the command powers of anyone in the military, nor for that matter the President's CiC powers.

And as for what I am assuming: the best evidence at this point is that the President did in fact order people to conduct surveillance that is a crime under FISA.
12.19.2005 1:35pm
Neal Lang (mail):
The definition of an agent of a foreign power, if it pertains to a U.S. person (which is the only category relevant to this case), is closely tied to criminal activity. The term includes any person who “knowingly engages in clandestine intelligence gathering activities . . . which activities involve or may involve a violation of the criminal statutes of the United States,” or “knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor.” Id. §§ 1801(b)(2)(A), (C)
- SCOTUS
12.19.2005 2:02pm
Medis:
Neal,

Yes, under FISA a US person can be an agent of a foreign power. And the NSA can conduct electronic surveillance of such a person while they are in the United States ... they just need to get an order from the FISC (either before or, in an emergency, within 72 hours after).

None of that, of course, implies that the President can order someone in the NSA to commit a crime by conducting such surveillance without such authorization.
12.19.2005 2:09pm
Neal Lang (mail):
I agree that you gave a proper answer to my hypo. And what your answer implies is that Congress can make laws of general applicability without that meaning they are attempting to direct operations.

Until such laws interfere with the CIC prosecution of a war, "then all bets are off". Seeing how "felony rape" could never be construed as an essential adjunct to the proper conduct of a war, your hypothetical is ludicrous. Your vain attempt at a "strawman", perhaps? You should be aware that the Executive, and not the Congress has the responsibility to "police the laws", making the enforcement of a rule of the UCMJ or other part of the US Code that might be hampering the "war fighting" ability of Military and the CIC rather moot.
12.19.2005 2:14pm
Jam (mail):
By Marxist I meant the progression that Marx described (abbreviated): from feudal, to capitalist, to socialist, to comunism.
http://www-formal.stanford.edu/jmc/progress/marxism.html


The means and the will to impose the all seeing government are being put in place. To acquiesce is not the solution. The solution is to roll back.

The people of Alabama decided to pursue what best form of government to pursue. They decided to remove themselves from the voluntary compact. There are no qualifications as to why to leave. The Central government thas no authority to compel a State to remain in the Union. Lincoln was a tyrant and all who agree with him are likewise. The only question is how much stomach do y'all have to "bring self-determination" to others and to what degree of servitude you think is still freedom.

I just do not want to wait until it is too late. Maybe already is.
12.19.2005 2:23pm
Jam (mail):
Also, take a look at what laws the Northern controlled Congress passed, which Lincoln would sign. The election outcome proved to Alabama, and others, that the Union no longer could be trusted to safeguard their interest. And Lincoln's actions sure proved them right.
12.19.2005 2:25pm
subpatre (mail):
Medis asks Do you have a case saying the President can order someone to violate FISA? No, but there's more cases where the Courts ignore FISA than require it.

It's another silly diversion from your suicide-pact version of US policy; like the "captain ordering rape..." example.

Medis is arguing that Congress can pass SISA (Suicidal Implimentation of Service Ammunition) requiring all combat services use blank ammunition, then declare war and expect the Executive to send our people into slaughter.

Nobody's claimed that all surveillance, even a majority or substantial portion, is done either without warrants on US persons or outside FISA. Blank amunition does have a (limited) use in warfare, but I'd bet there's more FISA compliance than SISA.

"According to the Government, searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant. The Defendant asserts that such an exception does not exist and should not be recognized by this Court. The Supreme Court has acknowledged but has not resolved this issue."
12.19.2005 2:28pm
Medis:
Neal,

No, your first answer above was correct. When a military commander orders someone to commit a crime under the UCMJ, the order is unlawful. And it does not matter if the commander claims it was, in his opinion, militarily advantageous--the commander only has the discretion to give lawful orders.

And that is precisely why it is not inconsistent to say that the President, as Commander in Chief, cannot lawfully order someone in the military to violate FISA--because that would be an unlawful order. So, this supposed contradiction between his CiC powers and his duty to faithfully execute the laws does not exist, because his CiC powers do not include the discretion to issue unlawful orders.

As for enforcement: as I have frequently noted, the President must faithfully execute the laws, so he cannot simply refuse to prosecute people in the government who have committed crimes. I suppose that if he did decide to stop faithfully executing the laws, the remedy would ultimately have to be impeachment.
12.19.2005 2:31pm
Medis:
subpatre,

Actually, the Congress can constitutionally do even worse: they could refuse to authorize funds for any ammunition at all, blank or otherwise.

And of course the President could use his CiC powers to order the armed forces to surrender unconditionally at the first shot.

The Constitution may not be a suicide pact, but it won't save us from complete stupidity on the part of our leaders. I'm not sure what you think that proves.
12.19.2005 2:36pm
Tufelkinder (mail):
Isn't this basically old news for our government? Hardly something new with Bush...
12.19.2005 2:42pm
subpatre (mail):
Medis - ( re: Congressional requirement to shoot blank ammunition) You may be correct then, I do not know. Nor will you ever know. No US Court will ever support that, if any Congress ever passed it. You're engaged in an exersize with no connection to reality.
12.19.2005 2:44pm
Jam (mail):
It is old news and that is part of the problem. Government intrusion is getting worse. We are not heading into a slippery slope, we are sliding on it.
12.19.2005 3:09pm
Neal Lang (mail):
Yes, under FISA a US person can be an agent of a foreign power. And the NSA can conduct electronic surveillance of such a person while they are in the United States ... they just need to get an order from the FISC (either before or, in an emergency, within 72 hours after).

Not according to the Supremes!
The government’s brief, and its supplementary brief requested by this court, also set forth its view that the primary purpose test is not required by the Fourth Amendment.

Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.

Accordingly, we reverse the FISA court’s orders in this case to the extent they imposed conditions on the grant of the government’s applications, vacate the FISA court’s Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.

The definition of "foreign intelligence" is crucial to understanding the scope of the act as it impacts "U.S. persons:
FISC op., 218 F. Supp. 2d at 613. “Foreign intelligence information” is a term of art in FISA, defined in 50 U.S.C. § 1801(e) to mean:
(e)(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against–
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a U.S. person is necessary to–
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.

Obviously, the electronic surveillance intelligence in question fits the definition of "Foreign Intelligence".
12.19.2005 4:03pm
Neal Lang (mail):
The election outcome proved to Alabama, and others, that the Union no longer could be trusted to safeguard their interest. And Lincoln's actions sure proved them right.

The Union took no action regarding Alabama until they illegally seceded. What happened subsequent to secession was related to putting down a rebellion. I submit none of these actions would have taken place, or even had been necessary, had the Slave States not decided unilaterally to break their trust!
12.19.2005 4:09pm
Neal Lang (mail):
The Constitution may not be a suicide pact, but it won't save us from complete stupidity on the part of our leaders. I'm not sure what you think that proves.

A good definition of "stupidity" would be granting "civil rights protection" to the efforts of those who would destroy us. Fortunately the President is wiser than that, despite what the NYT, MoveOn.org and the Democrat Congressional Cacus might think.
12.19.2005 4:13pm
Neal Lang (mail):
The Central government thas no authority to compel a State to remain in the Union.

As was decided on the battlefields of the Civil War, accumulating in excess of 600,000 dead Americans, you are wrong. Of course, had the Slave States taken their case to the Supremes, who knows how the Taney Court might have decided. After all, they decided that Black Africans were somehow less than human.
12.19.2005 4:20pm
Medis:
subpatre,

The point of these exercises is quite simple. The President cannot ignore his duty to faithfully execute the laws passed by Congress, replacing them with laws he likes better, simply because he thinks a given law is unwise. Similarly, the Speaker of the House could not take over as President simply because he thinks the President is doing a poor job. And these basic principles apply in war just like anywhere else.

Neal,

That decision holds that FISA as amended is constitutional. It doesn't hold that violating FISA is constitutional.

And once again, FISA does in fact provide for surveillance of US persons for the purposes of gathering foreign intelligence information. But to do so lawfully, you have to follow the FISA procedures. That is the whole point of FISA.
12.19.2005 4:23pm
Jam (mail):
Lincoln's War proved only proved that an industrialized, larger, population defeated an agrarian population. It does not prove anything else. Where in the Constitution is the authority delegated to the Central government to stop a State from leaving the compact? It is not rebellion when a State secedes.

And Lincoln violated the Constitution by usurping Article 1 authority by "calling forth the Militia."
12.19.2005 5:17pm
Scott Matheson:
Mr. Lang:

The implication that the Taney court "decided that Black Africans were somehow less than human" is misleading. The section of the opinion you may be thinking of is clearly analyzing the opinions of the Drafters, not of the Court. If the effect of the opinion was to render slaves less than human, this was only because that was the intention of the Constitution, not of Roger Taney.

If, Mr. Lang, you are an "originalist," then you must realize that if you were on the Court in 1857 you would have been bound to agree with Taney. The substance of his argument-- that the Fathers did not mean to include slaves in the definition of citizens, is pretty damn iron-clad. The Constitution before the 13th and 14th Amendments, read in any but the most progressive, non-originalist light, simply did not protect African-American slaves. You seem to want to have it both ways-- that you would have been a heroic defender of black civil rights (because who wouldn't hope that they would act so?) and that you want a narrow reading of the Constitution. These impulses would have been mutually exclusive if you were a Supreme Court justice prior to the 13th and 14th amendments.

Imagine the following: that the 13th and 14th Amendments were never passed. The Dred Scott case never happened. You are on the Judiciary Committee in 2005, and you ask a Supreme Court nominee if blacks are citizens under the unamended Constitution. As it stands now, at least three current justices (and probably Samuel Alito) would answer in basically the same manner as Taney did. I don't know about you, but I think the country fortunate that these justices are a minority, and that a majority would realize that the Constitution is a living document, not an artefact, and would rule appropriately.

As to your previous posts regarding the legality of secession, you seem to need reminding that the matter of unilateral secession is by no means settled. As a Canadian, my peculiar experience of such crises, and my governments' responses to it, leads me to agree with Lincoln that the US Constitution was a compact which could not be unilaterally revoked. If the Southern states wished to secede, they could have done so legally by pursuing the passage of a Constitutional Amendment in Congress and getting it ratified by the necessary number of states. They did not.

I realize none of this has anything to do with anything, especially the NSA and surveillance. Nonetheless: those of you who think (like me) that Lincoln's attitude toward Civil Liberties was questionable, and even those who think it was abhorrent, as Mr. Lang does, should read Mark Neely's book on the subject, The Fate of Liberty.

-scott matheson
12.19.2005 6:09pm
Neal Lang (mail):
The implication that the Taney court "decided that Black Africans were somehow less than human" is misleading. The section of the opinion you may be thinking of is clearly analyzing the opinions of the Drafters, not of the Court. If the effect of the opinion was to render slaves less than human, this was only because that was the intention of the Constitution, not of Roger Taney.

Really! Where does the Constitution address the inability of someone of the Negro race to enjoy citizenship in the US. Where does the Constitution address the fact that someone of the Negro race has no human rights? Where does the Constitution prohibit the States from exercising "popular sovereignty" when comes to the determination of whether or not to be slave or free, or extending citizen to Negroes. What the Taney court ruled was:
The Court ruled that:

No Negroes, not even free Negroes, could ever become citizens of the United States. They were "beings of an inferior order" not included in the phrase "all men" in the Declaration of Independence nor afforded any rights by the Constitution.

The exclusion of slavery from a U.S. territory in the Missouri Compromise was an unconstitutional deprivation of property without due process the administration of justice according to established rules and principles; based on the principle that a person cannot be deprived of life or liberty or property (Negro Slaves) without due process prohibited by the Fifth Amendment to the United States Constitution.

Dred Scott was not free, because Missouri law alone applied after he returned there.

The Court also presented a parade of horribles, describing the feared results of granting Mr. Scott's petition: "It would give to persons of the negro race, ... the right to enter every other State whenever they pleased, ... the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."


As near as I can tell, none of the Bill of Rights excepted members of the Negro race. Unfortunately, the Taney decision, instead of quieting the high emotions surrounding the moral issue of Slavery, exacerbated it.

In the 1860 Presidential Election, this decision caused the deep South "Slave States" to bolt the Democrat Party when it nominated the "popular sovereignty" champion, Stephen Douglas. These "Slave States" formed the Southern Democrat Party and nominated John Breckenridge. This split the Democrat vote in States both North and South, thus insuring the victory by the Republican candidate, Lincoln. These Deep South "Slave State" answered their political loss caused through their own stupidity by secession. Go figure!
12.19.2005 7:48pm
Neal Lang (mail):
You seem to want to have it both ways-- that you would have been a heroic defender of black civil rights (because who wouldn't hope that they would act so?) and that you want a narrow reading of the Constitution.

Actually I see no difference between the human rights of any man - race makes no difference. As far as I am concerned "all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness." The Declaration of Independence did not seperate white and black, in fact Thomas Jefferson, its drafter wanted to include the following indictment of the evil instituion of slavery:
he has waged cruel war against human nature itself, violating it's most sacred rights of life and liberty in the persons of a distant people who never offended him, captivating and carrying them into slavery in another hemispere, or to incure miserable death in their transportation hither. this piratical warfare, the opprobium of infidel powers, is the warfare of the Christian king of Great Britain. [determined to keep open a market where MEN should be bought and sold,] he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce [determining to keep open a market where MEN should be bought and sold]: and that this assemblage of horrors might want no fact of distinguished die, he is now exciting those very people to rise in arms among us, and to purchase that liberty of which he had deprived them, by murdering the people upon whom he also obtruded them: thus paying off former crimes committed against the liberties of one people, with crimes which he urges them to commit against the lives of another.

This particular indictment of the British Crown was dropped specifical on the DEMAND of the States of Georgia and South Carolina, of secession fame.

As for the Constitution of the United States of America and the status of "citizenship", there is nothing identifying any Federal requirements, least of all a racial requirement. For the most part it was left to the States to define their citizenship qualifications. It appears as thought Taney summoned a "whites only citizenship" out of whole cloth.


Of course, you cannot find the word "slave"; "slavery"; "African"; Negro"; or "Black" in Chief Justice Taney's copy of the Constitution. It did reference "free Persons", but only in establishing the apportionment of Representatives and Direct Taxes to the various States. Of course, there was no indication that a "free Person" could not be Black, as well as White. Of course, this verbage was part of a compromise that insured that the white Southerners' vote would count more that those in other States. The "3/5 Person" merely is a "multiplier" used for counting those other than "free Persons, including those bound to Service for a Term of Years". Of course, "free persons" also excluded "Indians not taxed". One wonders if a "taxed Indian" qualified to be a whole "person". Even the so-called "Escape Slave" Article in the Constitution mentions neither "slave" nor "Negro". In any evident, Taney did not read the bigoted thoughts he wrote into his opinion in Dred Scott in our Constitution.

Of course, our Founders understood that our "unalienable" human rights were endowed to every human created by God, whether black or white. These rights included "Life, Liberty, and the Pursuit of Happiness (Property)." They also knew these represented ONLY the "Right to do good" and could not be construed as a right to do evil, which would be liciense, and not a right. Finally, they realized that these rights were "ordered" in that one Right may take precedence over another's. They knew this because one man's Liberty, when it effects another man's Property right, must be paramount. Or that one man's liberty (as in a privacy right) cannot trump another man's right to life. This of course begs the queston whether one man's "privacy right" can be extended to assure accomplish another's death.

Out of curiosity, which three of our current Supreme Court Justices do you think would hold today (allowing the circumstances you mentioned) that the Negro race was somehow Constitutionally sub-human?
12.19.2005 9:10pm
Neal Lang (mail):
Lincoln's War proved only proved that an industrialized, larger, population defeated an agrarian population. It does not prove anything else.

It proves what Forrest Gump's mom always said: "Stupid is as stupid does!"
Where in the Constitution is the authority delegated to the Central government to stop a State from leaving the compact?

Where in the Constitution does it say that a State may unilaterally rescind its covenant with the Union? The agreement to become a member of the United States of America required approval, not only of the terrority SEEKING membership, but also of the United States of America. It is more than a mere "Contract", it is a "Covenant", in the biblical sense, with oaths given and accepted by both parties. To think that one party to a contract can abritarily and unilateral break it without sanction is quite stupid, IMMHO!

Consider this: Florida, and all the terrority representing the Slave States West of the Mississippi, except Texas were purchased by funds from the US Treasury. As for Texas, the US expended both treasure and blood fighting a War with Mexico that finally established the Southern border of that State. Under what stretch of the imagination would anyone think that these Slave States could simply secede without even offering compensation to the United States of America?
It is not rebellion when a State secedes.

Funny, I thought the Confederates called themselves "Rebel"! Okay, have it your way, it was an insurrction.
And Lincoln violated the Constitution by usurping Article 1 authority by "calling forth the Militia."

In what respect did he violate the Constitution by calling forth the Militia to execute the Laws of the Union, and
suppress Insurrections? Isn't that exactly what the Constitution provides for? Actually, the Militias were called forth by the Governors of the States and they Federalized.
In the 80 days that elapsed between Abraham Lincoln's April 1861 call for troops--the beginning of the Civil War--and the official convening of Congress in special session on July 4, 1861, Lincoln performed a whole series of important acts by sheer assumption of presidential power. Lincoln, without congressional approval, called forth the militia to "suppress said combinations,"6 which he ordered "to disperse and retire peacefully" to their homes.7 He increased the size of the Army and Navy, expended funds for the purchase of weapons, instituted a blockade--an act of war--and suspended the precious writ of habeas corpus, all without congressional approval.

Lincoln termed these actions not the declaration of "civil war," but rather the suppression of rebellion.8 We all know that only Congress is constitutionally empowered to declare war, but suppression of rebellion has been recognized as an executive function, for which the prerogative of setting aside civil procedures has been placed in the President's hands.9

6. See 4 The Collected Works of Abraham Lincoln 332 (Roy P. Basler et al. eds., Rutgers University Press, 1953-55) (hereinafter referred to as Coll. Works).
7. See id.
8. See id.
9. The Oxford Companion to the Supreme Court of the United States 428-29 (Kermit L. Hall ed., Oxford University Press, 1992). From: Abraham Lincoln and Civil Liberties in Wartime

Obviously, with Congress not in session, the President did what he does with Judicial and other Appointments when the Senate in not available to "advise and consent" - makes a "recess appointment". In the case of Insurrection, he does what is necessary to try and stablized the situation under his "war powers" as Commander-in-Chief.

Had he failed to act as decisivly as he did, instead of being rated by the majority of historians as America's greatest President, he would be listed as an "also ran" just below Jimmy Carter.
12.19.2005 10:44pm
Neal Lang (mail):
I realize none of this has anything to do with anything, especially the NSA and surveillance. Nonetheless: those of you who think (like me) that Lincoln's attitude toward Civil Liberties was questionable, and even those who think it was abhorrent, as Mr. Lang does, should read Mark Neely's book on the subject, The Fate of Liberty.

Believe Lincoln's greatest, including his ability to take extreme measures to preserve and defend the Union are best defined thus:
Lincoln took office two weeks after Jefferson Davis was inaugurated as president of the Confederacy. Davis, a West Point graduate, and Mexican War hero, had been Secretary of War for four years during Pierce's administration. He knew every dockyard and arsenal in the country, and he (and the Southern governors) immediately set about appropriating all the federal properties within their reach.

The Union government under Buchanan had meanwhile been drifting in imbecility. Washington, D.C., surrounded entirely by slave states, was virtually bare of any military defenses, when Lincoln was inaugurated on March 4, 1861. Only the fact that the border slave states — including Virginia — were still in the Union, and still stood between Washington and the Confederate states, kept the Confederate forces from sweeping the Lincoln government off the face of the map.

To extricate his government from this peril, and build the military forces of the Union, Lincoln's administration had to set about buying supplies in a manner that can be called frenzied. What is more, he had to do this in large measure by improvising his own administrative structures, since the regular departments were honeycombed with traitors.

The two previous presidents had been radically pro-slavery and pro-Southern. The War Department was staffed largely with men who had served under Jefferson Davis. In bringing order out of the chaos he faced upon taking office, Lincoln performed a miracle. That there was some profiteering in the process, and some corruption, could hardly have been avoided. What Bradford resented, however, was Lincoln's success.

Bradford's thesis that Lincoln waged a "Cromwellian" war of aggression against the South is without any foundation. He and I debated this a number of times, and he would never acknowledge the following facts. The "real" secession of the South from the Union came at the Democratic convention in Charleston, in April 1860. The seven states of the deep South walked out, when the majority — who came to nominate Stephen A. Douglas — refused to accept a plank in the party platform calling for a federal guarantee of slave property in every United States Territory.

Douglas, who had defended the right of slave owners to migrate to the Territories — and who had in 1854 legislated the repeal of the Missouri Compromise restriction upon such migration — insisted that it was up to the settlers in the territories to decide for themselves what their "domestic institutions" would be. He himself, Douglas had said, didn't care whether slavery "was voted up or voted down." He believed only in the "sacred right" of the people to decide all such questions for themselves.

In point of fact, it was sheer folly for the Southerners to reject Douglas. He was a furious "Manifest Destiny" expansionist, and as president would have supported their demands for the acquisition of Cuba, and probably the rest of Latin America as well. In all these places slavery could have expanded, almost certainly with Douglas's active support, and without any effective hindrance from the North. It was the rebellion of the deep South against Douglas that elected Lincoln. And the explanation is simply that their fanaticism on slavery would not permit them to tolerate anyone who did not actively share that fanaticism. Of the antebellum South it may truly be said, "Whom the gods would destroy, they first make mad."

It cannot be too often repeated that the South seceded because of its demand for a federal guarantee of slavery in every United States Territory, then or thereafter existing. This demand was rejected by Douglas no less than by Lincoln. In fact, no one who endorsed it could have been elected dog-catcher in any free state.

Contrary to a common mistaken opinion, this demand of the South, made in the name of states' rights, represented a demand for an unprecedented extension of federal power. It meant that federal troops, if necessary, would be sent to any Territory to protect a slaveholder's property, in the same way that President Pierce sent federal troops to Boston to recover a runaway slave in 1854. Or in much the same way that President Eisenhower would one day send federal troops to Little Rock to enforce the desegregation order of a federal court. This meant using federal police power to enforce slavery on a community that did not want it.

So much for the vaunted claim that the South was defending self-government against the tyranny of federal centralism. The South did not therefore secede in 1860 and 1861 in order to defend self-rule within their own boundaries. That was never threatened. They seceded in order to be able to spread slavery beyond the boundaries of the slave states themselves into any American territory, present or future.

The only antislavery policy ever advanced or advocated by Abraham Lincoln was one designed to keep slavery from spreading to territories where it had not already gone. He opposed as unconstitutional any attempt to interfere with slavery in the states where it was lawful. All charges against him of intending a forcible overthrow of slavery were and are absolutely false. The Civil War came because the South would not accept the results of the 1860 presidential election, although that election was conducted in strict conformity with the rules of the Constitution.

When the states ratified the Constitution of 1787, they pledged themselves to accept the results of elections conducted according to its rules. What came to be called the right of secession meant a right to break up a government after an election because the secessionists had not won the election. It was however an absurdity to call this a right of self-government. And the South could not point to a word in the Constitution protecting the rights of minorities that Lincoln had either violated, or had threatened to violate.

The precedent set by the seceding Southerners would have been fatal to the very idea of free government. The lesson that Lincoln had to prove to the world was that those who lose elections must seek their redress in future elections, not in attempting to set aside elections themselves. Ballots must not be destroyed by bullets. If the constitutional majority cannot rule through the ballot box, the only alternatives are tyranny and anarchy. The defense of the Union was then, in the fullest possible sense, the defense of the cause of free government.

It is difficult to understand how anyone can with a straight face defend the cause of the Confederacy as the cause of limited government. The government of slaves was not limited government. Spreading slavery was spreading despotism. The Constitution did not enumerate among the powers of Congress the power to spread slavery to the Territories. From: Defending the Cause of Human Freedom
12.19.2005 11:22pm
Jam (mail):

"Where in the Constitution does it say that a State may unilaterally rescind its covenant with the Union?"


The Constitution only delegates authorities to an agent, the Central government. If the authority is not explicitly delegated the Central government then has no authority - the 9th and 10th Amendments make it clear.

If the Central government had such authority, to prevent a member State from leaving, why was it not also addressed in Article 4?


"In what respect did he violate the Constitution by calling forth the Militia to execute the Laws of the Union, and suppress Insurrections?"


Because only Congress, hence Article 1, has the delegated authority.


"Actually, the Militias were called forth by the Governors of the States and they Federalized."


And the Southern States called the militia to protect their sovereignty against the would invaders.


"... suppression of rebellion has been recognized as an executive function"


The Constitution has no legal authority in States not in league. For example, the Constitution has no legal authority in Canada. Well, the Southern States seceded and the Constitution had as much legal authority there as it had in North Carolina and Rhode Island in 1788.

=============================

For all that do think that this is relevant to the 'Domestic Surveillance By the NSA?" topic. Please note that Lincoln is the Father of rationalizations for allowing the Central government, the POTUS in specific, to violate your rights as individuals and as citizens of your State.

Hail Caesar is their cry.

+++++++++++++++++++++++++++++++

Quit saying that the POTUS is "Commander in chief" in a general sense. The POTUS is only "Commander-in-Chief" of the armed forces.
12.20.2005 8:35am
Jam (mail):
The Southrons accepted the moniker gladly but it was given to them by the Northerners - Rebels to a tyrant. Remember the Rebels of 1776?
12.20.2005 8:39am
Jam (mail):
Contrary to what y'all might think of me, I do not support the Confederacy because of thir politics. I do because of what the nature of the compact that the Constitution is/was - an agency created by principals and agents are not above the principals.

What Lincoln and the Northern States did was to carry through a revolution. The transformation of a compact into a consolidation - a league into a nation.

Lincoln's revolution transformed citizens of the several States, and by State membership members of the Union, into citizens of the Union.

The agent usurped the prerogatives of the member States in league and overthrew the principals.

That is why the real rebels were Lincoln and the Northern States and why "rebels" to tyrants is a much better name.
12.20.2005 8:50am
Neal Lang (mail):
The Constitution only delegates authorities to an agent, the Central government. If the authority is not explicitly delegated the Central government then has no authority - the 9th and 10th Amendments make it clear.
Quid Pro Quo

Nonsense! The Constitution was more a "partnership agreement" than an "agency agreement". Each party agreed to provide the partnership with certain things.

The United States agreed to provide "the People" with a more perfect Union, to establish Justice, to insure domestic Tranquility, to provide for the common defence, to promote the general Welfare, and to secure the Blessings of Liberty. Additionally, the "the People", and by extention, their States were also promised:
Article. IV.

[Section 1.] Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

[Section 2.] The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

[Section 4.] The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

For the original 13 States, acceptance of the terms of this partnership were to be acceptance by "the People" of each State through their representatives, to wit:
Article. VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

All 13 agreed, including the insurrectionist South Carolina and Georgia. Part of the agreement was the understanding that making War against the United States was treason, to wit:
Article III.

[Section 3.] Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

The secessionist Slave States violated this convenant of the "partnership agreement" when they made War against the United States to enforce their unconstitutional unilateral secession.

The "partnership agreement" allowed for the means by which "new Partners" could be added, to wit:
Article IV.

[Section 3.] New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Seeing how Alabama, Mississippi, Louisiana, Arkansas (Loisiana Purchase),Florida (Purchase from Spain), and parts of Texas (as a result of the Mexican War), were actually "Territory or other Property belonging to the United States" before these State became States, and "sovereign terrority" of the Union. Logically the act of Secession from the United States would have have ended their Statehood under the Constitution, and thus the States "sovereignty". Obviously said "Territory or other Property" could then be disposed of "by the Congress", as had been agreed in the "Partnership Agreement" that created said States.

Finally, "the People" through their State representatives agreed to accept the "Constitution, and the Laws of the United States and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land", and that "the People", through their State representatives agreed to be bound by a "covenant oath" to the Constitution or "Partnership Agreement", to wit:
Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Oaths were "big medicine" to our Founders and not to be taken lightly.
If the Central government had such authority, to prevent a member State from leaving, why was it not also addressed in Article 4?

And if the States had the authority to unilaterally "crawfish" on the deal, why wasn't such addressed, as well? Apparently, all parties anticipated that the "Partnership Agreement" and "covenant oath" would be forever binding!
And the Southern States called the militia to protect their sovereignty against the would invaders.

As agreed to by "the People" through their State representatives in the Constitution, the the terrority of the several States was also the "sovereign terrority" of the United States. Frankly, that was the only way the United States could make treaties with other Nations affecting the territory occupied by the several States. Please explain: "how does one invade their own "sovereign terrority?"
The Constitution has no legal authority in States not in league. For example, the Constitution has no legal authority in Canada. Well, the Southern States seceded and the Constitution had as much legal authority there as it had in North Carolina and Rhode Island in 1788.

But of course, unlike Canada, all the seceding Slave States had either ratified the Constitution per Article. VII., or petitioned the United States for a partnership. In any event, all had taken the Article. VI. "fealty oath of allegiance" to the Constitution and republic it created, through ALL of their State officers and officials.
For all that do think that this is relevant to the 'Domestic Surveillance By the NSA?" topic. Please note that Lincoln is the Father of rationalizations for allowing the Central government, the POTUS in specific, to violate your rights as individuals and as citizens of your State.

No one has "the right" to plot treason against the US and murder her people. Where did you ever get the idea that they did.
Quit saying that the POTUS is "Commander in chief" in a general sense. The POTUS is only "Commander-in-Chief" of the armed forces.

Gee, I thought he was also the CEO, as well, to wit:
Article. II.

[Section 1.] The executive Power shall be vested in a President of the United States of America.
12.20.2005 3:26pm
Neal Lang (mail):
The Southrons accepted the moniker gladly but it was given to them by the Northerners - Rebels to a tyrant. Remember the Rebels of 1776?

Really? Well, most of the Deep South Slave States seceded months before Lincoln even took office. How, pray tell, could he be a "tryant" when he didn't even hold office? So, apparently, these "Rebels" thought the Southerner, Buchanan, was the evil "tyrant", although can not understand why!
12.20.2005 3:31pm
Neal Lang (mail):
Contrary to what y'all might think of me, I do not support the Confederacy because of thir politics. I do because of what the nature of the compact that the Constitution is/was - an agency created by principals and agents are not above the principals.

Gee, why on Earth would someone swear "fealty" to their agent? Amazing!
12.20.2005 3:34pm
Neal Lang (mail):
What Lincoln and the Northern States did was to carry through a revolution. The transformation of a compact into a consolidation - a league into a nation.

Nope! The entity created the "United States of America" had territorial sovereignty, as is stated in Article IV. and its Laws took precedence over those of the several States, as agreed in Article VI. Besides, the States, through their representatives swore a "covenant oath" to the Constitution and the republic it created.
12.20.2005 3:41pm
Neal Lang (mail):
Lincoln's revolution transformed citizens of the several States, and by State membership members of the Union, into citizens of the Union.

The rebellion of the Deep South Slave States begun before Lincoln even took office - so you really need to find someone else to blame. Perhaps the Rebells?
12.20.2005 3:44pm
Neal Lang (mail):
The agent usurped the prerogatives of the member States in league and overthrew the principals.

The member States first "prerogative" was to keep their "fealty oath" to the Constitution and the republic, of which they were members. BTW, the citizens of both the several States and the territories were always known as Americans and citizens of the United States of America to all other National sovereigns.
12.20.2005 3:48pm
Neal Lang (mail):
That is why the real rebels were Lincoln and the Northern States and why "rebels" to tyrants is a much better name.

Your proposition being that seceding Slave States were actually trying to perseve the Union? Very interesting!
12.20.2005 3:50pm
Jam (mail):

"And if the States had the authority to unilaterally "crawfish" on the deal, why wasn't such addressed, as well?"


Ah, but it was addressed. Amendments 9 and 10. And many, at the time, did not think that the Bill of Rights was needed because the Central government did not have authority over those issues to begin with.


"No one has "the right" to plot treason against the US and murder her people. Where did you ever get the idea that they did."


To secede is not treason. I guess under your view of things we must still be under the Articles of Confederation. Which is fine with me.


"Nope! The entity created the "United States of America" had territorial sovereignty, as is stated in Article IV. and its Laws took precedence over those of the several States, as agreed in Article VI. Besides, the States, through their representatives swore a "covenant oath" to the Constitution and the republic it created."


Yep. The agent has precedence only on those delegated authorities. The States did not delegate their athority to leave the compact.


"Gee, I thought he was also the CEO .."


That still only makes the POTUS CiC of the Armed Forces and not of the general population.


"The United States agreed to provide ..."


What "United States?" When the States joined in the voluntary compact THEY created an agency. The agency did not exists and came into being only when 9 of the 13 agreed to join. The agent only serves at the will of the principals and the agent's delegated authorities, over a member, only exists while a State is in the compact.


"shall be bound by Oath or Affirmation, to support this Constitution;"


Again, only applicable while a State is in the league.


"Gee, why on Earth would someone swear "fealty" to their agent? Amazing!"


Have you ever been in a partnership? I haven't but I worked for a partnership once that fell apart because one of the partners was also engaged in activities/businesses that directly competed with ours. He could have left the partneship at any time, assets offseted against liabilities, accounts satisfied and all would have ended all the same. Minus the duplicity.


"Please explain: "how does one invade their own "sovereign terrority?"


Obviously you do not. The Union invaded someone else's sovereign territory.


"Well, most of the Deep South Slave States seceded months .."


My opinion of Buchannan is not very good. The Northern States were the ones to call the Confederates Rebels and Lincoln proved to be the tyrant the Southrons knew he would be.


"both the several States and the territories were always known as Americans"


And also the people that live in South and Central America call themselves Americans because they also live in the Americas. So what?
12.21.2005 9:11am
Jam (mail):

"Your proposition being that seceding Slave States were actually trying to perseve the Union? Very interesting!"


Actually that is exactly how Southrons saw themselves. They saw themselves as trying to preserve, through the Confederate States of America, the original understanding as to what the Union was: a voluntary compact/league.
12.21.2005 9:18am
Neal Lang (mail):
Ah, but it was addressed. Amendments 9 and 10. And many, at the time, did not think that the Bill of Rights was needed because the Central government did not have authority over those issues to begin with.

In fact, James Madison, author of the initial draft of the Bill of Rights and Father of the Constitution, thought so, and he was probably right. Of course, secession doesn't balance with the solemn obligations of the States and ALL their Representatives, Executive Officers, and Judiciary under Article VI. to:
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Secession violates this covenant Oath to "support the Constitution" and the Federal Republic which it created. Only an idiot would believe otherwise.
To secede is not treason. I guess under your view of things we must still be under the Articles of Confederation. Which is fine with me.

Of course it is, to wit:
treason - Violation of allegiance toward one's country or sovereign, especially the betrayal of one's country by waging war against it or by consciously and purposely acting to aid its enemies.

allegiance - Loyalty or the obligation of loyalty, as to a nation, sovereign, or cause.

And as the Constitution states:
Article III.

[Section 3.] Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

The Article VI. "Oath" is an "obligation of loyalty", the same being "swear in" is an "Oath to tell the truth". Treason and unilateral secession are synonymous.

As for the "Articles of Confederation" none of the States "unilaterally" seceded. In fact, it took a "supermajority" of 9 State ratifying the "new" Constitution to dissolve the "Confederation" created by the "Articles", had the 7 seceding Deep South Slave States gotten a "supermajority" of the United States to accept their secession there would have been no Civil War, because that was the proper way to handle the matter - not unilateral secession and rebellion.
Yep. The agent has precedence only on those delegated authorities. The States did not delegate their athority to leave the compact.

Again, it wasn't an "agency"; it was more a "partnership", whose agreement, the "Constitution, the seceding Slave States violated. When they petitioned the United States to join and swore "fidelity" to the Constitution and the United States, which the Constitution created, they also forswore "unilateral secession".
That still only makes the POTUS CiC of the Armed Forces and not of the general population.

To the extent that "general population" might be consider part of the "General" or "unorganized" Militia, I would say that in fact, the President, when wearing his CiC hat at a time of National Emergency that requires their "calling forth", to wit:
"(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are —

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia." From: Section 311 of US Code Title 10

Of course, some would argue that the "general population" is not part of the "unorganized militia" on the pretext that they may then be "disarmed". I happen to disagree. How do you feel about it?
What "United States?" When the States joined in the voluntary compact THEY created an agency. The agency did not exists and came into being only when 9 of the 13 agreed to join. The agent only serves at the will of the principals and the agent's delegated authorities, over a member, only exists while a State is in the compact.

Again you are totally wrong about the relationship between the "several States" and the "United States". It is a "partnership" and not a "agency". Your entire premise that the Constitution is merely an "agency agreement" is quite absord!

In answer to your question: "What '"United States'?" - I suggest the same "United States" referred to in the title of document creating our Nation: "The Unanimous Declaration of the Thirteen United States of America july 4, 1776"; and in its Execution Caption: "the representatives of the United States".

Also in the The Paris Peace Treaty (1783)- ending the Revolutionary War and acknowledging the United States' claim to independence: in the Preamble Parties to the Treaty: "Prince George the Third, by the grace of God, king of Great Britain, France, and Ireland, defender of the faith, duke of Brunswick and Lunebourg, arch- treasurer and prince elector of the Holy Roman Empire etc., and of the United States"; "Treaty of Peace proposed to be concluded between the Crown of Great Britain and the said United States"; "his Britannic Majesty and the United States"; "that is to say his Britannic Majesty on his part, David Hartley, Esqr., member of the Parliament of Great Britain, and the said United States on their part, John Adams, Esqr.,"; "late delegate in Congress from the state of Massachusetts, and chief justice of the said state, and minister plenipotentiary of the said United States to their high mightinesses the States General of the United Netherlands"; "Benjamin Franklin, Esqr., late delegate in Congress from the state of Pennsylvania, president of the convention of the said state, and minister plenipotentiary from the United States of America at the court of Versailles"; "John Jay, Esqr., late president of Congress and chief justice of the state of New York, and minister plenipotentiary from the said United States at the court of Madrid"; "His Brittanic Majesty acknowledges the said United States"; in Article 2: "boundaries of the said United States"; "shores of the United States"; in Article 3: "people of the United States"; "inhabitants of the United States"; "persons resident in districts in the possession on his Majesty's arms and who have not borne arms against the said United States"; in Article 5: "persons of any other decription shall have free liberty to go to any part or parts of any of the thirteen United States"; in Article 7: "fleets from the said United States"; in Article 8: "citizens of the United States"; and in Article 9: "any place or territory belonging to Great Britain or to the United States".

Also in the Articles of Confederation (1781) in the Preamble -"Delegates of the United States"; in Article I.: "confederacy shall be "The United States of America"; Article II.: "delegated to the United States"; in Article IV.: "property of the united states"; in Article V.: "any office under the united states"; "questions in the united states"; Article VI.: "Consent of the united states"; "any office of profit or trust under the united states"; "the united states in congress"; "judgment of the united states"; "consent of the united states"; "a declaration of war by the united states"; "regulations as shall be established by the united states"; in Article VIII.: "allowed by the united states"; "agreed upon by the united states"; in Article IX.: "taken by land or naval forces in the service of the united states"; "for the benefit of the united states"; "congress of the united states"; "standard of weights and measures throughout the united states"; "general affairs of the united states"; "credit of the united states"; "expense of the united states"; "agreed on by the united states"; "defence and welfare of the united states"; in Article X.: "powers of congress as the united states"; in Article XI.: "Canada acceding to this confederation, and joining in the measures of the united states"; in Article XII.: "before the assembling of the united states"; "a charge against the united states"; in Article XIII.: "Every state shall abide by the determinations of the united states"; and in the Execution Caption: "the determinations of the united states".

And finally in the Constitution, starting in the title "Constitution for the United States of America"; continuing in the Preamable - "We the People of the United States ... do ordain and establish this Constitution for the United States of America"; and continuing thoughout the document, for instance: Article I. and in Article II: - "Congress of the United States"; "Citizen of the United States" (Interestingly, according to Constitution, a "person" is a "Citizen of the United States", but merely an "Inhabitant" of a State); "Senate of the United States"; "Vice President of the United States"; "President of the United States"; "Treasury of the United States"; "common Defence and general Welfare of the United States"; "credit of the United States"; "Coin of the United States"; "Government
of the United States"; "Resident within the United States"; "Army and Navy of the United States"; "Service of the United States"; "Offences against the United States"; "Officers of the United States"; in Article III.: "judicial Power of the United States"; "Laws of the United States"; "Treason against the United States"; "Territory or other Property belonging to the
United States"; "Claims of the United States"; in Article IV: "United States shall guarantee to every State in this Union a Republican Form of Government"; in Article VI: "Authority of the United States"; "both
of the United States and of the several States"; and finally, in the Execution Caption: "Independence of the United States". I am sure you get the picture!
BTW, the use of the term "ordain" in the Preamble is very interesting and indicates "permanency" the Framers intended to endow the Constitution and the republic, the United States, which it created.
ordain - To order by virtue of superior authority; decree or enact.

As you can see the "United States" pre-existed the Articles of Confederation or the Constitution, although the two documents changed its form, and was the Nation that Declared its Independence from Great Britain in 1776.
Again, only applicable while a State is in the league.

As the requisite "fealty Oath" was sworn while the seceding Slave States were members, even in your illogical concept - the mere act of attempting to secede constituted a violation of the sworn Oath, as well as, treason and rebellion.
Have you ever been in a partnership

Yes, several.
I haven't but I worked for a partnership once that fell apart because one of the partners was also engaged in activities/businesses that directly competed with ours. He could have left the partneship at any time, assets offseted against liabilities, accounts satisfied and all would have ended all the same. Minus the duplicity.

It obvious that you have no clue as the legality of a "partnership". Dissolution of the "partnership agreement" requires concurrence of ALL parties to the agreement. One partner cannot unilaterally dissolve the agreement, although he may violate the agreement by not maintain his end of the bargain, in which case the remaining partners have legal sanction against offending partner. Typical save "voluntary bancrupcy", ending the "general partnership" of two or more partners normally requires "agreement" between the partner wishing to leave the partnership to sell/give their interest in the partnership to the remaining partnership, and the agreement of the remainin partners to purchase that interest on mutually accepted terms. The point is "agreement of all those affected". Unilateral secession is not "mutual agreement" it is "duplicity" (a.k.a. "crawfishing").
Obviously you do not. The Union invaded someone else's sovereign territory.

During the Civil War, Union force never set foot on any terrority that was not already part of the "sovereign territory" of the United States.
My opinion of Buchannan is not very good.

At least we agree on something.
The Northern States were the ones to call the Confederates Rebels and Lincoln proved to be the tyrant the Southrons knew he would be.

Possibly because that is what they did - rebelled! So you agree that prime pretense (the tyranny of Lincoln) of the majority of Deep South Slave States proclamations of secession was false. Interesting!
And also the people that live in South and Central America call themselves Americans because they also live in the Americas. So what?

Actually you are totally wrong. Only citizens of the United States are recognized internationally as "Americans". Citizens of Mexico are referred to as Mexicans; of Canada as Canadians; Costa Rica as Costa Ricans; etc.; etc.; etc.
Actually that is exactly how Southrons saw themselves. They saw themselves as trying to preserve, through the Confederate States of America, the original understanding as to what the Union was: a voluntary compact/league.

Only thing voluntary about membership in the Union was the New State's petition to join, subject to acceptance by the Congress of the United States (and not by the other States individually). If acceptance into the Union required being accepted by a majority of the individual States it is likely a number of the Slave States would not have made the cut! Leaving the Union therefore required a similar "Congressional Approval". Unfortunately, the Deep South Slave States didn't petition to secede - they merely unilaterally did it and startin a rebellion and the Civil War!
12.21.2005 12:52pm