pageok
pageok
pageok
Alito Update:
The Wednesday Washington Post reports:
Democrats all but conceded the Supreme Court confirmation of Samuel A. Alito Jr. yesterday but signaled they will use the Senate debate that begins today to focus on President Bush's domestic spying program and their predictions that Alito will be too pliant in supporting it.
Justin (mail):
A little late getting to the issue of the day. If only the Democrats didn't politics the way the GOP did policy.
1.24.2006 11:15pm
Justin (mail):
A little late getting to the issue of the day. If only the Democrats didn't politics the way the GOP did policy.
1.24.2006 11:15pm
Thomas Roland (mail):
Justin:

Whaaa?
1.24.2006 11:21pm
Dustin R. Ridgeway (mail):
This is just theatre for the base.
1.25.2006 12:36am
Just an Observer:
Senate Democrats regrettably have made Alito's confirmation a partisan vote, and unconvincingly have tried to tar him by association with the questionable legal theories of the Bush/Cheney neoconservatives.

It would be a mistake to believe that notion, which is chicken-little propaganda mindlessly repeated among some Democrats and wishful thinking held by some Republicans.

My own prediction is that Alito will not roll over for Bush's overly aggressive assumption of executive power in general or his particlar claims that the NSA surveillance is legal. I have the same faith in John Roberts.
1.25.2006 12:36am
Atty in Chicago:
I prefer the Democrats abuse and insult Republican nominated Supreme Court Justices as much as possible. This will eliminate any future tempatations to move in a liberal "I can justify anything with the due process and equal protection clause" direction. (See Clarence Thomas)
1.25.2006 5:27am
Huggy (mail):
Senate Democrats once again are following Karl Roves secret plan. 1994 all over again...massive loss for the Democrats.
1.25.2006 8:06am
farmer56 (mail):
I have listened to, read, the complaints of the Senators proof postitive assertions that the spying done by the NSA violates the law. Guess what? GWB did not write, nor enact the law that the elected senators are wailing about. A very simple act of ammending the law by just one senator, presenting an ammendment to the law in question,would save all of us from the abuse that is being foisted on us by GWB.

But Get a clue. Not even ONE SINGLE elected member of congress has offered up a single piece of legislation to stop the evecutive branch from abusing its power.

Go back to JH govt class. Congress writes the laws. Not judges. If even a single member of congress has a proplem with the interpation of a law, it is very simple they write an ammendment to the law.

To wit, Only a court order will allow the executive branch to spy on any communication of anyone in the borders of the United States.

See? Very simple!

BUT! No one has done that.

Why?

Because the battle is worth more than the fix.

This is a political battle, not a legal battle.
1.25.2006 9:14am
Just an Observer:
farmer56,

What would such a law say? The general assertion against Bush is that Congress already passed a law, and he broke it.

The civics review you suggested:

1) Congress enacts laws.
2) The President carries out the laws.
3) The courts interpret and enforce the laws.

What Bush's critics are saying is that 1) has already occurred, and the President failed to do 2)

BTW, are you the same person who used to post here as "corngrower?" He made the same convoluted argument you do here.
1.25.2006 9:59am
Neal Lang (mail):
Senate Democrats regrettably have made Alito's confirmation a partisan vote, and unconvincingly have tried to tar him by association with the questionable legal theories of the Bush/Cheney neoconservatives.

Nothing new here!
My own prediction is that Alito will not roll over for Bush's overly aggressive assumption of executive power in general or his particlar claims that the NSA surveillance is legal. I have the same faith in John Roberts.

Actually, if they show the respect to the actual written Constitution that professed in their confirmation hearings, they extend the Commander-in-Chief the same deference that all Supreme Courts have extended the Executive at times of war and danger to the "Public safety". Unlike Ginsburg and Breyer, Roberts and Alito's decisions will be be truly non-partisan, so if Hillary! finds herself fighting the "terrorist" as "Commander-in-Chief", she can count on the votes of Roberts and Alito, along with Ginsburg and Breyer. when comes to cases involving who actually has the Constitutional "duty" to prosecute a war.
1.25.2006 10:42am
Neal Lang (mail):
I prefer the Democrats abuse and insult Republican nominated Supreme Court Justices as much as possible. This will eliminate any future tempatations to move in a liberal "I can justify anything with the due process and equal protection clause" direction. (See Clarence Thomas)

Unfortunately for the Republic, the "Elephant" quickly forgets, while the "Jackass" never does!
1.25.2006 10:44am
Daniel Chapman (mail):
Maybe my junior high civics class was just more recent than yours..

"3) The courts interpret and enforce the laws."

No they don't... they have no enforcement power whatsoever.
1.25.2006 10:50am
Louise (mail):
I just find ironic that for weeks Democrats have waited for their chance to lay into Judge Alito, and now that they know the public overwhelmingly supports his nomination, they are going to turn their attention elsewhere. Funny how that works. I'll just be glad next week when JUSTICE Alito is sworn in as the next Supreme Court Justice--rightfully so!
1.25.2006 11:19am
Henry Woodbury (mail):
Just an Observer

That's hardly a convoluted argument. The administration argues they didn't break the law. Congress can argue that interpretation, or, if the law is vague, they can fix it. They can do both, if they want.

A parallel issue arises from Feingold's complaints about Alito's purported deference to the executive on death penalty cases. If the Senator wants a higher standard of review on death penalty cases (or no death penalty at all, which I would support), the Senator should attempt to pass such legislation, instead of complaining about Alito's "procedural" mind.
1.25.2006 11:20am
Neal Lang (mail):
But Get a clue. Not even ONE SINGLE elected member of congress has offered up a single piece of legislation to stop the evecutive branch from abusing its power.

Because the Democrats know it would cost them at the polls in 2006 to tie the President's hands on fighting attacks on the American. "The People" have no problem with NSA listening to the phone calls between terrorists resident in the US and the al Qaeda controls in the Hindu Kush. Only the "moonbat" Bush haters do! Everytime the Congressional Democrats take up the Cindy Sheehan chant, their poll numbers drop, and the President's go up.

Just like the Supremes decided in Oregon v. Gonzales could not bourne out by the empirical data and the "real polik" of the situation - if Congress didn't want the Attorney General to ban Oregon doctors from using Controlled Substances to murder their patients, they had over 4 years, and as many appropriation bills to de-fund such Federal enforcement efforts. They didn't, because the Congress, unlike the Supremes, reallized what "authority" they delegated to the AG in the CSA. The only thing the Supremes have going for them is that they don't have answer to "the People" (or anyone else for that matter).
Go back to JH govt class. Congress writes the laws. Not judges. If even a single member of congress has a proplem with the interpation of a law, it is very simple they write an ammendment to the law.

Get a clue! The Supremes have been "re-writing" both our laws and the Constitution since they usurped such "power" to unconstitutionally do so in Marbury v. Madison in 1803, despite Publius' protestation to the contray in Federalist 81.
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)[1], is a landmark case in United States law, the basis for the exercise of judicial review of Federal statutes by the U.S. Supreme Court as a constitutional power. The Court ruled that it had the power to declare void a statute which it considered repugnant to the Constitution. Chief Justice John Marshall, in Marbury, legally established the cornerstone of the power of the judiciary—and in particular, the Supreme Court— to overrule the actions of coequal branches of government and thus laid the basis for the current power of the Supreme Court.

The "power" for the Judiciary to over-rule Congress and the President is found nowhere in "the People's" Constitution's text. As with so many other things foisted on "the People" by the tyrannical Judicial Branch, apparently John Marshall's "Supremacist" wet dream is part of some Supreme Court divined "penumbra".
To wit, Only a court order will allow the executive branch to spy on any communication of anyone in the borders of the United States.

See? Very simple!

BUT! No one has done that.

Why?

Because the battle is worth more than the fix.

This is a political battle, not a legal battle.

Actually, it because if some Democrat Congressman did such a thing, and the expected "9/11" followup attack should occur, the Democrat Party realizes that the political "fallout" would wipe it out. Again, it is not "the People" who are worried about the NSA using "electronic surveillance" to curtail terrorist attacks on the US - it is merely the "moonbat" - "knee-jerk" - Bush haters". "The People" kind of like the idea that the President is performing his sworn Constitutional duty "to the best of (his) Ability, preserve, protect and defend the Constitution of the United States."
1.25.2006 11:25am
farmer56 (mail):
Just an observer

Congress passes laws. Thats it.

Why would not a single person that has the power to enact a law, not, just, define that area of a law that they themselves wrote?

Fact: legal minds greater than yours say that no law has been violated.

Fact: Members of congress disagree with the afore mentioned law.

Fact: Not a single member of congress is willing to risk his job to introduce a law to protect me from the evil of
GWB.

Fact: Not a single member of congress has the conviction to stop this so egregios of violations to the American people.

Fact: The debate will rage on, rather that a solution be offered.

Fact: What is the purpose of the NSA? If not to (shhhh) spy?
1.25.2006 11:30am
Just an Observer:
Daniel Chapman,

You are, of course, correct. My sloppy mistake. The courts must rely on the executive to enforce their orders. But I hope you will agree that the judiciary has the responsibility of finally interpreting the law.

Giving farmer56's post the benefit of a paraphrase, as Henry Woodbury has done:

The argument then is that because the President asserts, according to his own interpretation of the statutes, that they do not prohibit his actions, Congress could enact clarifying language to leave no room for such interpretation. This option has been dubbed "FISA — This time we mean it."

I agree, and actually expect Congress will do something like that — probably as part of a compromise that also makes some changes augmenting the mechanics of FISA. Defining the scope of any such changes, I think, will be very controversial.

However, such a political solution and new legislation are not the only way to resolve such a controversy. The meaning of existing law could be decided authoritatively by the Supreme Court, if a case presenting the question ever reaches it.
1.25.2006 11:32am
Neal Lang (mail):
3) The courts interpret and enforce the laws.

Actually, law enforcement is an Executive function (despite the text of several amendment indicating a "power of Congress to enforce the specific amendment") - at least according to the Constitution, to wit:
Article. II.

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

This is why you find all the Federal cops (an military) in the Executive Branch.

As to the courts' function, I suppose it depends on who you ask. If you ask the Constitution, it would be limited to merely "interpreting the law". The Framers, at least "Publius", would agree with that interpretation (See: Federalist 81). However, the Supremes, themselves, have usurped the "power" to "re-write" the Constitution, and change and void the laws enacted by Congress.
What Bush's critics are saying is that 1) has already occurred, and the President failed to do 2)

Every President since the Congress enacted FISA has taken exception to it and the limitation on methods they would choose to use to "secure the People's rights". Every President from Carter to the present Bush has "failed to do 2)" with regards to FISA. Unlike his predecessors, may have a "stronger legal leg to stand on" because of the events of "9/11" and Congress' plain instructions to him found in their Declaration of the War on Terror.
1.25.2006 11:54am
farmer56 (mail):
Just an observer

Either admitt you are ignorant of which you speak of, or, are just stirring the pot.

I know that this is a law board. It deals in things of the legal nature. But? Who writes the laws? Gee? Judges? I think the the judicial branch does not get to write law. Oops I forgot, there is that Miranda Law, that was written by judges, and that law that limmited the length of a shot gun barrel to 18 inches, and, what else, Oh the power to set the law at which age a convicted crimminal can be executed. Please explain how the courts can not write law.

FACT: All politicians would prefer that they do not have to justify a vote on a tough situation. It might cost them a job. It is way more easier, saftyest, non contriversial,etc, to hide behind the robes of the court.

Proof? Everyone knows the the vast majority of the 'people' want abortion to be protected. But, not a single member of congress has offered a bill that would protect abortion. It is now legal,but it would force a vote. (of course abortion was legal before Roe v Wade, just the courts enacted a law to make it national) Hum? Why? Because, maybe? The vast majority do not support abortion? Gee. Even Ted Kennedy, with a sure re-election, wont bring a bill to the floor. Because.....ALL of his peers would be forced to make a public vote. And the peers do NOT want to have a vote on record. What could be more simple than enact a law that SCOTUS has preemptivly affermied? See? That eliminates the battle. No abortion debate. No Judical debate. Hum?
1.25.2006 12:17pm
Neal Lang (mail):
However, such a political solution and new legislation are not the only way to resolve such a controversy. The meaning of existing law could be decided authoritatively by the Supreme Court, if a case presenting the question ever reaches it.

And just what happens when President Bush tells Chief Justice Robert, who was appointed by him, what President Andrew Jackson (patron Saint of the Democrat Party) told Chief Justice John Marshall, who's Supreme ruled contrary to the Jackson's pleasure in 1832: "John Marshall has made his decision, now let him enforce it!"

While some might consider it a "Constitutional Crisis", perhaps such an event might prove to be the necessary catalyst to, "once and for all", determine if the Branches of our Federal are truly "co-equal", because such is ultimately necessary as a "check and balance" against a "tyrannical" government.
1.25.2006 12:18pm
Neal Lang (mail):
Oops I forgot, there is that Miranda Law, that was written by judges, and that law that limmited the length of a shot gun barrel to 18 inches,

Actually, the Congress wrote the law limiting the barrel-length of shotguns - The National Firearms Act of 1934. The Supremes merely confessed that "no evidence" was presented them in Miller v. US that "such an instrument" (a short barrelled shotgun) "was necessary to the efficency of the militia", and remanded the case back to the District Court that had dismissed Mr. Miller's case on 2nd Amendment grounds, to collect more evidence showing the miltary necessity of short-barrelled shotguns, or try Mr. Miller on the "NFA '34" violation. In fact, the Supremes never actually up-eld the Constitutionallity of the "NFA '34", especially regarding the regulation of Thompson Submachine Guns, an instrument whose military value was easily demonstrated.
1.25.2006 12:31pm
Neal Lang (mail):
Proof? Everyone knows the the vast majority of the 'people' want abortion to be protected.

Proof?
1.25.2006 12:36pm
Kovarsky (mail):
the [i believe the term is] "realpolitik" is that dems know that no way, no how, can they afford to be preceived as opposing the taps themselves. their objections are, more succinctly, (1) "hey, W, why didn't you tell us in the first place (bush's briefing of the gang of 8 notwithstanding)" and (2) dude, why don't you adhere to the fourth amendment and get a judge to authorize the taps?

given that these are there two primary objectives (neither of which really involves overturning the program itself)...

with respect to (1), the dems aren't going to frame legislation that says effetively, "georgie, you should have told us the first time." they know they'll come off as petty and, as a side bar, i'm not sure that type of thing is the appropriate subject matter for legislation.

with respect to (2), you may well see a piece of legislation introduced that affirms the president's substantive power to evesdrop (once they figure out what it is the evesdropping actually consists of), but imposes some sort of extra-executive check on the initiation and persistence of the taps. there are, however, a vareity of political realities - having nothing to do with the abstract congressional approval or disapproval of bush's program - that might nonetheless retard the introduction of such legislation. for one thing, rove et al have proven so effective at painting anybody objecting to the procedural implementation of the program as an old-fashioned-cold-war-grandpa-type thinker that the retributive consequences and associated political fallout of initiating that type of legislation - that which clarifies a more formal procedure for initiating and sustaining taps - are nonetheless high. second, legislators may well be banking that, after all of the politics and senate hearings shake out, maybe the president alters and exposes the program such that this type of legislation would be unnecessary.

the administration has done a BRILLIANT, and i mean BRILLIANT, job of positioning the importance of the three main issues in the exact inverse order of their intellectual difficulty: (1) do we need flexible intel to fight the war on terror (duh!); (2) did the AUMF authorize the intel gathering in light of traditional means of resolving tension between apparently conflicting statutes (doubtful, but maybe there's a case here); and (3) does the "signals intel," however authorized, violate the fourth amendment (we have absolutely no clue until the administration actually lets some NEUTRAL actor look at what it is they're doing; but if they're not getting warrants, they're going to have to do a really good job of explaining why FISA's 3 day retroactive approval requirement does not prevent them from falling into a new fourth amendment exception - or they're going to have to explain why the fourth amendment doesn't apply to US citizens, but i'm sure they'll come up with something).

but this isn't really about law (yet) anyways. that's why the 42 page "white paper" reads like pamphlet for a press junket.
1.25.2006 3:28pm
farmer56 (mail):
Neal

Yes you got the Miller Decission.... But, as a lawyer, fail to show all of 'us' where 18 inch shotgun barrel lenght comes from? Huh? please explain where the length of 18 inches is defined by our collective representatives. Cant, can you? It was a law made by the judicial branch. Oops only the legislative branch can make law. Sorry not being a constitutional student I get confused. Where did the length of a shot gun barrell get codified into law?

Proof?

on the will of the people that support abortion?

Well, TV and Radio. CBS NBC CBS CNN etc. It is a 'fact' you may disagree, but you cannot hide. Not a single elected politician is willing to even write a bill to enforce what the supremes have already written into law by themselves. Let alone offer the bill up to debate. Why?

Because they fear losing the debate. Its not that complicated. Democrats have achieved not a single thing, unless it was thru the courts. Guess what? The people that are elected, get to set the courts. That is the reason for all of the frothing at the mouth.
1.25.2006 4:06pm
farmer56 (mail):
I love the response of GWB. "If I was keeping the tapping a seceret, (Shhhh, why did I brief a bi-partisan group of elected representatives of what I was doing?)"

A seceret? Violate the law? Huh? If the Senate or House had a problem.....They would have started an investigation ten minutes after the first breifing. But.. there was not a single word uttered, until this hit the press.
1.25.2006 4:21pm
Kovarsky (mail):
farmer,

based on my understanding, the president briefed at a minimum the "gang of four" (the chairmen of the House and Senate intelligence oversight committees and the two ranking Democrats), and at most the "gang of eight," which includes House and Senate leaders in addition to heads of the intelligence panels.

that is not the image of "briefing congress" the president seeks to evoke in his speeches. that rhetoric classic bush-rove maneuver though. and all that restricted briefing did was keep the president from violating the national security act; it has nothing to do with whether the wiretaps violated FISA or the Fourth Amendment.

by invoking this "congressional briefing" the president means to create the impression that there was some sort of "congressional authorization" of the sort necessary to trump FISA's specific warrant requirements (and the sort necessary to acquire certain article II powers, but that's legalese I'm trying to avoid here). It is obvious to anybody that takes time to read the FISA statute, however, that congressional authorization requires, at a minimum, the participation of all of congress, in the form of a statute or joint resulution - not a subset of congressional insiders. this "congressional briefing" is not the "congressional authorization" necessary to trigger the legality of the wiretaps under FISA/AUMF. there might be people who make persuasive arguments that Bush did recieve the appropriate congressional authorization, but i can promise you that these "briefings" do not constitute the bases for these arguments.

this is classic bush/rove political warfare, which is to say that its hugely effective at exploiting the contemporary impulse to view these issues at their most impossibly abstract - the dems are sweet but naive because they don't want to use surveillance to protect the country; republicans are the hardened realists that understand freedom's costs. these little orchestrated soundbites even make the adminstration look like they're giving the dems the benefit of the doubt, as they are fraught charitable but infuriatingly condescending rejoinder to democrats - "nice guys, but don't understand 'real' war."

what is happening is that the public is told by lawyers, in layman's terms, that the president needed "congressional authorization" for the taps, so the president says "duh, we got authorization," even though he knows damn well that's not the type of authorization he was required to get. it's the type of argument calibrated to appeal to the lowest common denominator - "how can you say i broke the law if i told other people the stuff i was doing." the answer is, of course, that you had the briefings to avoid violating the national security act which requires that you brief certain officials in certain circumstances like these - not because you believed the 4th amendment legality of the underlying taps to be self-evident.
1.25.2006 4:57pm
farmer56 (mail):
Kovarsky

You failed to mention that 3000 men women and children that are no part of the military, hence did not volenteer to risk there lives died on our soil. Why? Please, I beg for you to explain.

Congress was briefed on the taps. Just not a single member of congress thought there was a violation of law. That is a fact that not a single elected person brought to the fore, because each and everyone wanted, desired, demanded, that theses taps take place. To Fullfil the one requirement of the federal government. 'to protect our borders'.

I see lots of complaining, just not a single alternative to protect our borders from an insvisible enemy. YOU? Offer a different tack if you will. Just not a soul has a different solution. Why? Because bitching is easy. You offer no solution.

"If you are not part of the solution...You are part of the problem".
1.25.2006 5:40pm
Kovarsky (mail):
u, dude, if i didn't spell it out before, my solution is to pass by legislation precisely the same program bush has in place, provided that it is constitutional once someone audits it.

i'm guessing you haven't given all that much thought to the number of interpretations "associates of al-qaeda" is capable of bearing.

sorry, i can't accept violating the constitution just because we're fighting. the constitution makes lots of allowances for the federal government during wartime, but those "allowances" are precisely what render measures taken pursuant to them constitutional. so you can exercise your authority under constitutional allowances, but you can't violate the constitution "to protect our borders" at all costs. K-O-R-E-M-A-T-S-U.

also, did you really just respond to my extended, detailed explanation about who knew about the taps when and why, with the show-stopping "Congress new about the taps." I might be wrong (although I don't think I am) about the number of people that knew (maybe it was 10, or 15), but it certainly wasn't all of congress. Also, nobody really knows what those members of congress who were briefed thought about the legality of the program. As of last week, there were only and small handful of senior ranking administration officials and two or three lawyers on record stating that they believed the program itself and the manner in which it was implemented were legal. All of the lawyers work directly for Bush, and one is Gonzalez, whose track-record on incidents of warfare is tortuous.

And re: the 3000 men and women and children dying - you're right. It probably slipped my mind.
1.25.2006 5:58pm
Kovarsky (mail):
torturous.
1.25.2006 6:00pm
BruceB (mail):
I believe very, very few people object to phone taps between known Al Qaida members and operatives in the US. There is no need to keep knocking down that strawman.

What people are concerned about is indiscriminate, unchecked wiretapping of US citizens.

If the administrations has enough information to know that one end of a phone call is an Al Qaida member (and side issue: if they know this, why is that person still alive), then they have enough information to convince a judge.

If they don't have enough information to convince a judge, then they are basically just tapping US citizen's conversations to see what they hear. This is EXACTLY what is objectionable.

How does a warrant stand in the way of doing what the administration says it is doing? Only if the wiretaps are far more wide spread, and based on far more speculative rationale, does their objection to obtaining warrants even make sense.

Basically, Bush is saying "Just trust me to do what is right, and don't think you can check up on me". That simply doesn't fly.

Turning around the "If you aren't doing anything wrong, you have nothing to worry about", if Bush is not abusing this capability, exactly what does he lose by needing to convince a judge and get a warrant?
1.25.2006 9:27pm
farmer56 (mail):
YOOOO Dude'

See. I have the same solution as you. Period....Period,,, offer up an ammendment to the existing law... Period. But, not a single soul that holds an elected federal posisition, is willing to offer up a bill to get a vote on. Why? Because, talking on the radio and TV allow the speakers peers a way out of the disscussion....Period....Catch a clue....Period....The battle is political capital...Period... Hey ! here's a thought. Write an ammendment to the existing law that prevents the executive branch from doing what some find sooo illegal? Just poke out a few simple sentences that prevent GWB from doing what is, by most account Illegal. BUT... If you were an elected representative your peers would have your head on a stake if you made your ammendment public. It would force a recorded vote on restricting the govt from preventing 3000 or more people from being murdered. Again.

Yes. We are a govt of checks and balences. And, Every single elected member of congress that is looking to the courts for a check on the Executive branch, could just draft a law, denying the executive branch from doing what the bitchers are bitching about. Why wait for the courts????

Simple. Every single detractor of the current policy, would threaten dire cosequences to any member that would draft such a bill.

Try it yourself, write an ammedment to NSA law that would stop the actions in question.

You will find that it is the most silly thing ever written. But. Hey. take a stab at it.
1.26.2006 9:30am
Burky (mail):
Well considering the Dems used the so-called confirmation hearings to give eloquent soliloquies on abortion or civil rights rather than Judge Alito's qualifications, it makes sense that they should use debate time today to bloviate on something other than what the time was set aside for. At least this highly qualified and fair-minded judge will most likely be confirmed.
1.26.2006 10:35am
Neal Lang (mail):
Yes you got the Miller Decission.... But, as a lawyer, fail to show all of 'us' where 18 inch shotgun barrel lenght comes from? Huh? please explain where the length of 18 inches is defined by our collective representatives. Cant, can you? It was a law made by the judicial branch. Oops only the legislative branch can make law. Sorry not being a constitutional student I get confused. Where did the length of a shot gun barrell get codified into law?
Please note the following from the US Code:
United States Code - TITLE 26 - INTERNAL REVENUE CODE - SUBTITLE E - ALCOHOL, TOBACCO, AND CERTAIN OTHER EXCISE TAXES - CHAPTER 53 - MACHINE GUNS, DESTRUCTIVE DEVICES, AND CERTAIN OTHER FIREARMS - SUBCHAPTER B - GENERAL PROVISIONS AND EXEMPTIONS - PART I - GENERAL PROVISIONS

Section 5845. Definitions

For the purpose of this chapter -
(a) Firearm
The term ''firearm'' means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length; (3) a rifle having a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length; (5) any other weapon, as defined in subsection (e); (6) a machinegun; (7) any silencer (as defined in section 921 of title 18, United States Code); and (8) a destructive device. The term ''firearm'' shall not include an antique firearm or any device (other than a machinegun or
destructive device) which, although designed as a weapon, the Secretary finds by reason of the date of its manufacture, value, design, and other characteristics is primarily a collector's item and is not likely to be used as a weapon. From: U.S. Code : Title 26 : Section 5845

These definitions were found in the The National Firearms Act of 1934. In interpreting this statute vis-a-vis Mr. Miller's claim of "violation of his 2nd Amendment Right", the Supremes did not define a "short-barrelled shotgun". Instead they relied on the definition provided by Congress. Again, the Court did not find that the "keeping" of a "short-barrelled shotgun" was not protected by the 2nd Amendment, merely that in "the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument (because no case was presented defending Mr. Miller and the District Court's stand on the 2nd Amendment), to wit:
"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense... The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." From: Supreme Court cases relating directly with the Second Amendment

In the area of 2nd Amendment "rights", the Supreme Court has not "made law". No, its major sin is that it is "ducking the issue", as it did in Miller. That is why Associate Justice Clarence Thomas has opined that the court must "revisit" the 2nd Amendment.

Since The National Firearms Act of 1934, Congress has done far worst damage to "the people's right to keep and bear arms". These legislative "sins" include:
1. the 1968 Gun Control Act
2. the Firearm Owners Protection Act of 1986 (bans on fully auto firearms)
3. the 1994 Brady Bill
4. the 1994 Assault Weapons Ban
5. the 1996 Domestic Violence Offender Gun Ban (Lautenberg Amendment)
The Lautenberg Amendment to a Postal Appropriations Bill prohibits the owning or using of firearms if an individual (1) has ever been convicted of misdemeanor domestic violence offense or (2) is currently subject to a restraining order regarding an intimate partner or the child of such a partner. The "restraining order" was the underlying basis of the famous Emerson Case. As usual, the Supremes "ducked" an appeal of the 5th Circuit Emerson decision, to wit:
We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia. However, for the reasons stated, we also conclude that the predicate order in question here is sufficient, albeit likely minimally so, to support the deprivation, while it remains in effect, of the defendant's Second Amendment rights. Accordingly, we reverse the district court's dismissal of the indictment on Second Amendment grounds. From: FOR THE FIFTH CIRCUIT - No. 99-10331 - UNITED STATES OF AMERICA versus TIMOTHY JOE EMERSON

Again, the Supreme's major sin in this area is "ducking the issue".
Proof?

Obviously I missed your "irony and sarcasm". With regards to "Not a single elected politician is willing to even write a bill" - the lost of control of House of Representative by the Democrats is attributed directly to the 1994 Gun Control acts, according that astute political observer, Bill Clinton. (Interestingly, Clinton probably owed his opportunity to sully the White House to "George the First's" - "biting the NRA hand" that helped elect him in 1988. Since 1980, no Republican has been elected President without the complete support of the pro-2nd Amendment organizations. Just ask Bob Dole.) Since 1994 no major stand-alone gun control bill has even made to the House floor. The Lautenberg Amendment came out of the Senate and has the honor of taking perhaps more police officers "off the street" as Clinton's much "ballyhooed" Crime Bill put on.

I believe we are on the same page on these issues, however, the causes you promote are better served by documentable accuracy than by "gut feel", "off the cuff" remarks. With the facts on your side there is no need to make stuff up.
1.26.2006 12:24pm
Neal Lang (mail):
If the administrations has enough information to know that one end of a phone call is an Al Qaida member (and side issue: if they know this, why is that person still alive), then they have enough information to convince a judge.

Remember, the problem is not convincing the FISA judge to issue a "probable cause warrant" permitting "electronic surveillance" of the telecoms of an al Qaeda "ops director" in the Hindu Kush. The problem is getting the "FISC" to issue a "probable cause warrant" permitting "electronic surveillance" of the telecoms of Mr. X located at Y in the USA. Courts pretty much refuse "probable cause warrants" directed at Mr. X located a Y because the 4th Amendment specifies: "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". The Bush Administration has sought and received more FISC "warrants" than any other Administration. When the "probable cause" facts, including who, what and where are known, these FISC "probable cause warrants" are fairly easy to obtain. However, when the US party or parties, along with their locations, are not exactly known, I doubt if any court would accept a finding of "probable cause".

As for why the "al Qaeda ops director in the Hindu Kush" remains above room temperature, perhaps specifically for the "intelligence value" about his US "enemy agent" contacts derived from the NSA Terrorists Surveillance Program.
If they don't have enough information to convince a judge, then they are basically just tapping US citizen's conversations to see what they hear. This is EXACTLY what is objectionable.

Most likely the info available on the US party is their cell phone number found in the Speed Dial Directory of an al Qaeda "ops director" in the Hindu Kush". Without additional facts it would be difficult (no impossible) to establish satisfactory "PC" for a "search warrant". Of course, the "warrant" involved is for "surveillance" and not "search". I am sure you are aware that the Clinton Administration authorized "warrantless physical searches" of suspects homes, papers, and effects - arguable a direct 4th Amendment violation. The level of "probable cause" required to "search" versus "surveil" is the real issue here. The question is whether the Congress can debar the Commander-in-Chief from properly doing his Constitutional duty to "preserve, protect and defend the Constitution of the United States", which he believes to include gathering "combat intelligence" on potential members of the terrorist enemy's "5th Column" it the US. The 4th Amendment speaks of "search and seizure" and not "surveillance", which was unconstitutionally added by the Supremes by mere "judicial diktat" amendment, ignoring Article V of the Constitution. The question remains if to the extent that FISA extents 4th Amendments beyond the "physical searches and seizures" specified, can Congress also violate Article V by codifying the Supremes unconstitutional amendment by mere majority vote of the Congress?

The Supremes have decided that the police many begin to "surveil" someone based on a "reasonable suspension", as long it does not involve "racial profiling". Why should the Commander-in-Chief not be able to "surveillance" someone's "phone calls", without a "probable cause warrant"? Of course, I suppose a case might be made that the mere fact that someone US cell phone Number is listed on an al Qaeda computer Harddrive is "racial profiling" at its worst.

The fact is that the 4th and the 3rd Amendments are as much about "property rights" as they are about "penumbra" defining an unmentioned Constitition right of privacy. Of course, after Kelos, we really see how the Supremes thing about the existence of any "property rights".

Unfortunately, the "civil libertarians", including those on the courts and in Congress have no respect for the "Public safety", favoring instead the "right of privacy" to commit "criminal acts" and "acts of terrorism". Go figure!
1.26.2006 1:16pm
Neal Lang (mail):
sorry, i can't accept violating the constitution just because we're fighting. the constitution makes lots of allowances for the federal government during wartime, but those "allowances" are precisely what render measures taken pursuant to them constitutional. so you can exercise your authority under constitutional allowances, but you can't violate the constitution "to protect our borders" at all costs. K-O-R-E-M-A-T-S-U.

Let's see now:

First, the only way one could find that surveillance of "enemy agents" by the Commander-in-Chief to gather "combat intellience" in time of "declared" war is to say that the Constitution does not say what it actually says, but instead what the "Supremes says it does".

Second, I believe that the Supremes in Kormematsu opined that the Commander-in-Chief in time of war had the "authority" to intern American citizens who happened to be "ethnically" the same as only "ONE" of the 3 enemies we were at war with (Germans and Italians being excluded) - thus making such actions as "Constitutional" as "warrantless surveillance" is now uncostitutional by Supremes diktat.

I believe the problem is not whether the President has the Constitutional "authority" to protect the US, he obviouly does. The real problem is whether the Supremes, or Congress can amend the Constitution by mere majority vote, ignoring Article V completely.

Kindly tell me why "electronic surveillance" of an "enemy act" in the US is violation of the Constitutional rights of that "enemy agents", while the arbitary detention of a US citizen, without "probable cause" other than their ancestry, without the right of "Writ of Habeaus corpus", and without "due process", is perfectly okay? We owe this particular conundrum directly to the "all powerful" Supremes. Amazing!
1.26.2006 1:40pm
Neal Lang (mail):
I might be wrong (although I don't think I am) about the number of people that knew (maybe it was 10, or 15), but it certainly wasn't all of congress.

Perhaps because if "all of congress" knew about this "top secret" "black program", so would Usama bin Laden, about 10 minutes later.
1.26.2006 1:43pm
Neal Lang (mail):
As of last week, there were only and small handful of senior ranking administration officials and two or three lawyers on record stating that they believed the program itself and the manner in which it was implemented were legal.

Did you ever consider that this might be because it was a "secret" program, and not a lot of administration officials, including senior ones, and junior ones, and even lawyers, knew anything about the program. Frankly, if anyone outside of a very small "need to know" group of defense/intllegence officials were on record as saying "that they believed the program itself and the manner in which it was implemented were legal", I would be suspicious of a coverup, as these wouldn't have known "manner in which it was implemented".
1.26.2006 1:52pm
Neal Lang (mail):
i'm guessing you haven't given all that much thought to the number of interpretations "associates of al-qaeda" is capable of bearing.

I believe even the kindest "interpretations" of "associates of al-qaeda" probably at a minimum crosses one these lines: "levying War against (the US), or in adhering to (the US's) Enemies, giving them Aid and Comfort". Which, of course, is the Constitution's definition of treason.
1.26.2006 1:58pm
Neal Lang (mail):
What people are concerned about is indiscriminate, unchecked wiretapping of US citizens.

And the proof that the NSA Terrorist Surveillance Program is really "indiscriminate, unchecked wiretapping of US citizens" is exactly what? What we have here is Left Media generated paranoia "run amuck". When the good citizens here as much of the truth that the Administration can devulge, without further compromising this very necessary program the shout a collective "go for it".

The proof of this is that both the FISA Court and the Intelligence "security qualified" members of Congress from both paries were read in on the Program without objection. Please note that no one in Congress has volunteered any serious legislation to curtail the NSA program. Perhaps because they know more than you do about - something I am afraid you must except until obtain a higher "clearnance" level.
1.26.2006 2:17pm
farmer56 (mail):
Thanks Neal;

The political solution would be a blood bath for who ever would attempt to write an ammendmedt, to, correct the assumed wrongs.

No, No, No, No.

It will NEVER be written.

Why?

Because even the most fervent of the pol's that are bitching about abuse of power, would send whoever offered up a bill, woulld be sentenced to political death.
1.26.2006 2:39pm
farmer56 (mail):
Neal

Cute.

You quote a law, that quotes the Court of the length of a shotgun barrel. The court decided the proper length. the law you quote, just justifies what the court invented.
1.26.2006 2:48pm
Neal Lang (mail):
You quote a law, that quotes the Court of the length of a shotgun barrel. The court decided the proper length. the law you quote, just justifies what the court invented.

Actually, I quoted a court (the Reynolds Court in Miller) that quotes a law (the NFA of 1934). Actually, the Congress in the National Firearms Act of 1934 decided the appropriatrte length of a shotgun barrel (18") they did the appropriatrte length of a rifle barrel (16"). I challenge you to find a decision of the Supremes that speaks to the appropriate length a rifle barrel being 16". Don't bother looking, there ain't any. Please note the Supremes use of quotation marks in their opinion when reference is made to the specific minimum length of a shotgun barrel. That was because the court was quoting the law (NFA "34) passed by Congress. If someone sold you on the "fact" that the court set the barrel length of shotguns, I am afraid they sold you a "bill of goods", as they did not.
1.26.2006 4:42pm
Frank Drackmann (mail):
5 of the 7 votes approving Roe v Wade were Justices nominated by Republican presidents (Burger,Stewart,Brennan,Blackmun,Powell)
1.28.2006 9:31pm