The NSA Decision: Judging Without Facts or Law
Like A Parody of Bad Judging. But With Potentially Tragic Consequences.
By Dan McLaughlin Posted in Featured Stories | National Security — Comments (154) / Email this page » / Leave a comment »
Today, at the instigation of the ACLU, CAIR, Greenpeace, the National Association of Criminal Defense Lawyers and a number of individual plaintiffs (including, most dishearteningly, Christopher Hitchens), Judge Anna Diggs Taylor of the US District Court for the Eastern District of Michigan - a Jimmy Carter appointee - issued a permanent injunction halting the use of the NSA's Al Qaeda surveillance program that was disclosed to the public by the New York Times in December. Judge Taylor's opinion reads like a parody of bad judicial reasoning. The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process. In the meantime, Judge Taylor's decision unambiguously does two things: it reinforces the importance of appointing good conservative judges, and it demonstrates the damage already done to our security by the Times's unauthorized disclosure of the NSA program.
Read on
To refresh your recollection, the program the court refers to as "TSP" (apparently standing for "Terrorist Surveillance Program" "The Secret Program," so far as I can tell from the opinion) intercepts and monitors - without a warrant or other judicial review - telephone "communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Slip op. at 13. Note that even Judge Taylor has to admit to two things that critics of the program have usually glossed over: it doesn't apply to domestic (i.e., solely within the U.S.) communications, and it is narrowly tailored to capture communications of Al Qaeda and those affiliated with or supporting Al Qaeda - i.e., exactly the people that even the most die-hard opponents of the Bush Administration admit we are at war with. Or so you would think: Judge Taylor gives away her bias on p. 9 when she refers to "the War on Terror of this administration".
I explained back in December why I believe that the NSA program is easily within the president's powers under the Constitution, is not barred by any express Constitutional limits, and is at least arguably justified by the September 2001 Authorization to Use Military Force against Al Qaeda, on the theory that the AUMF implicitly repealed the statutory limitations of the Foreign Intelligence Surveillance Act ("FISA") within the limited context of the war against Al Qaeda. In a nutshell -- go read the whole thing for more elaboration -- the President has the traditional power to conduct surveillance of the enemy in wartime, and that power is not diminished when the enemy crosses our border or communicates across our border. If -- and in this case it is -- the surveillance is reasonable, and thus in step with the Fourth Amendment, and because it is the proper exercise of a war power implicit in the AUMF, the strictures of FISA do not apply. Others have argued that the surveillance is actually consistent with FISA; being no expert on FISA and lacking all the facts, I have not addressed that question and won't do so here. The Bush Administration has not sought to publicly advance that argument, though it is not clear whether this is at least partly because the Administration does not want to disclose any more of the details of this program than have already been splashed across the front page of the NY Times.
The Opinion
State Secrets
The first issue Judge Taylor addresses is the state secrets privilege, recently reaffirmed by a unanimous Supreme Court back in 2005 in Tenet v. Doe, 544 U.S. 1 (2005). The privilege -- requiring the dismissal of lawsuits where either the proof of the plaintiff's claim or the defendant's defense would require disclosure of state secrets -- was originally developed to limit the bringing of breach of contract claims by unpaid spies. The Court in Tenet rejected such a narrow view of the rule:
[The Ninth Circuit] reasoned first that Totten developed merely a contract rule, prohibiting breach-of-contract claims seeking to enforce the terms of espionage agreements but not barring claims based on due process or estoppel theories. In fact, Totten was not so limited: "[P]ublic policy forbids the maintenance of any suit in a court of justice, the trial of which would inevitably lead to the disclosure of matters which the law itself regards as confidential." Id., at 107 (emphasis added); see also ibid. ("The secrecy which such contracts impose precludes any action for their enforcement" (emphasis added)). No matter the clothing in which alleged spies dress their claims, Totten precludes judicial review in cases such as respondents' where success depends upon the existence of their secret espionage relationship with the Government.
+ + +
We adhere to Totten. The state secrets privilege and the more frequent use of in camera judicial proceedings simply cannot provide the absolute protection we found necessary in enunciating the Totten rule. The possibility that a suit may proceed and an espionage relationship may be revealed, if the state secrets privilege is found not to apply, is unacceptable: "Even a small chance that some court will order disclosure of a source's identity could well impair intelligence gathering and cause sources to 'close up like a clam.'" CIA v. Sims, 471 U. S. 159, 175 (1985). Forcing the Government to litigate these claims would also make it vulnerable to "graymail," i.e., individual lawsuits brought to induce the CIA to settle a case (or prevent its filing) out of fear that any effort to litigate the action would reveal classified information that may undermine ongoing covert operations. And requiring the Government to invoke the privilege on a case-by-case basis risks the perception that it is either confirming or denying relationships with individual plaintiffs.
Judge Taylor reaches exactly the conclusion the Supreme Court unanimously rejected a year ago:
Defendants’ assertion of the privilege without any request for answers to any discovery has prompted this court to first analyze this case under Totten/Tenet, since it appears that Defendants are arguing that this case should not be subject to judicial review. As discussed supra, the Totten/Tenet cases provide an absolute bar to any kind of judicial review. Tenet, 544 U.S. at 8. This rule should not be applied in the instant case, however, since the rule applies to actions where there is a secret espionage relationship between the Plaintiff and the Government. Id. at 7-8. It is undisputed that Plaintiffs’ do not claim to be parties to a secret espionage relationship with Defendants. Accordingly, the court finds the Totten/Tenet rule is not applicable to the instant case.
Slip op. at 11. As Judge Taylor notes - and explaining why this case was brought in Michigan rather than in the DC Circuit, where it belongs - the DC Circuit in 1978 applied the state secrets doctrine to dismiss claims challenging warrantless surveillance by the NSA and other government agencies, because litigation would disclose the NSA's methods and the identities of those surveilled, among other things. Slip op. at 5-7. Indeed, Judge Taylor's discussion of the caselaw makes clear that the law in the Sixth Circuit, as well as the DC Circuit, overwhelmingly supported dismissal of the present lawsuit.
However, Judge Taylor is undeterred by such precedent. First, she notes that certain basic outlines of the program have been made public and confirmed by the Administration (gliding over who forced this issue into the public eye), and notes that the plaintiffs are asking for a permanent injunction solely on the basis of the facts publicly admitted -- utterly ignoring the possibility that more detailed discovery (if such a thing were not unduly intrusive of national security, which it obviously is) would bear on such things as the reasonableness of the government's need to conduct such surveillance. As we shall see below, once Judge Taylor gets past the state secrets issue, she repeatedly rejects the government's defenses precisely on the grounds that they are not supported by sufficient evidence. She simply assumes that, just because the government is unwilling to disclose additional facts, they must not exist.
Part of her justification for this kangaroo-court approach to evidence is the following:
It is undisputed that Defendants have publicly admitted to the following: (1) the TSP exists; (2) it operates without warrants; (3) it targets communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda.
+++
The Bush Administration has repeatedly told the general public that there is a valid basis in law for the TSP. Further, Defendants have contended that the President has the authority under the AUMF and the Constitution to authorize the continued use of the TSP. Defendants have supported these arguments without revealing or relying on any classified information.
At 14. Of course, the Bush Administration, having reached this conclusion based on all the facts, including those that are classified, will state for the public such justifications as it can advance based on the information already disclosed by the Times, without compromising more secrets. The idea that the Administration's public defense of its position under intense attack by the Times and others on the Left constitutes some sort of waiver of its position that the program's secret details should not be further protected -- or are not relevant to the program's legality -- is absurd.
Standing
Of course, to challenge a government program, you need evidence that you have actually been affected by it; in other words, you need standing. I don't have time or space here to catalogue all of Judge Taylor's misreadings of the standing cases (Leon does that here, but three points are worth making.
First, the plaintiffs' proof of standing is itself more than a little disturbing; second, the plaintiffs have not actually met their evidentiary burden:
[T]he court is persuaded that Plaintiffs are able to establish a prima facie case based solely on Defendants' public admissions regarding the TSP. Plaintiffs' declarations establish that their communications would be monitored under the TSP.
At 13. Of course, the plaintiffs do not actually show that they were surveilled, but several of them did file affidavits with the court in which they admitted to consorting with people linked to Al Qaeda:
[I]n a Declaration, attorney Nancy Hollander stated that she frequently engages in international communications with individuals who have alleged connections with terrorist organizations. Attorney William Swor also provided a similar declaration. Journalist Tara McKelvey declared that she has international communications with sources who are suspected of helping the insurgents in Iraq.
Slip op. at 13 n. 7. This may be grounds for indicting or deporting these fine, upstanding citizens, but it's not evidence that they were actually surveilled. The court rejects the questions raised by the government on this point on the grounds that they are "unsubstantiated." Slip op. at 23. Well, of course they are unsubstantiated because the government doesn't want to reveal any more state secrets. But having assumed away the state secrets problem by saying she needs no more evidence, Judge Taylor just forgets about it whenever she demands more evidence from the government.
The third point about standing is this alarming passage:
All of the Plaintiffs contend that the TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.
Slip op. at 17-18 (emphasis addded). Actually, to be more precise, the New York Times' disclosure of TSP caused these Al Qaeda-affiliated individuals to clam up. Gone, in a single sentence, is any pretense that the Times' defenders may have that the disclosure of this program did not blow important secrets, and did not cause any change in terrorists' behavior.
Judge Taylor's Constitutional "Analysis"
This is the point at which I would, ordinarily, address Judge Taylor's reasons for coming to the opposite conclusion that I did -- first and foremost, why she thinks that the program violates the Constitution -- but her analysis is so flimsy that it is hard to even discuss. As I noted in my prior discussion, the touchstone of any Fourth Amendment analysis is reasonableness, not the presence of a warrant, and the courts have upheld this rule. This is the basis, for example, for many exceptions to the Fourth Amendment recognized by the Supreme Court, such as the exigency requirement. Yet Judge Taylor, without any citation at all, baldly asserts that the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens." Slip op. at 31. She then turns to discuss FISA, ignoring the fact that if a search is constitutionally valid, it does not become invalid simply because a statute says otherwise (it may violate the statute, but that's a separate issue). Then she concludes:
The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.
Id. I guess "obviously" dispels the need to actually engage in any analysis. So much for judicial reasoning.
If anything, Judge Taylor's First Amendment analysis is even worse. She notes that the plaintiffs have shown that they were 'chilled' in expressing themselves by knowledge of the surveillance. The flimsiness of the proof on that point notwithstanding, she continues by noting that the government can justify such a chilling effect "upon showing of a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen." Slip op. at 32.
Does Judge Taylor then discuss the exigencies of the governmental interest involved, or compare the details of the program to some purportedly less restrictive alternative? Of course not, because that would require discussing the facts -- and she has already said she could rule without those! So she instead cites some language in FISA and some language dealing with interests in suppressing criticism of the government, and concludes:
The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well.
Slip op. at 33. Say what?
Then, there's the separation of powers and the statutory conflict issues, which are dealt with in similar fashion. For example, Judge Taylor notes that the Supreme Court rejected the exigency of President Truman's seizure of steel mills during a strike in the Korean War (a case having nothing to do with surveillance), and baldly asserts:
As long ago as the Youngstown case, the Truman administration argued that the cumbersome procedures required to obtain warrants made the process unworkable. The Youngstown court made short shift of that argument and, it appears, the present Defendants’ need for speed and agility is equally weightless.
Slip op. at 42. Note the word "weightless" - as in, not proven by evidence. What evidence? The evidence the court said the government didn't need, of course!
Finally, the court grievously mischaracterizes the "inherent power" argument, which, as I discussed previously, goes only to the question of what the source of the government's power is:
The Government appears to argue here that, pursuant to the penumbra of Constitutional language in Article II, and particularly because the President is designated Commander in Chief of the Army and Navy, he has been granted the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution, itself.
We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all “inherent powers” must derive from that Constitution.
Slip op. at 40.
Anyway, the permanent injunction will, I hope, be stayed within the next 12-24 hours by the Sixth Circuit; regardless, this will certainly not be the last word on the matter. However, even a momentary lapse in our ability to keep constant watch on Al Qaeda is enough to remind us of the dangers posed to us in the form of judges appointed by a Democrat a quarter century ago, and of the damage done to national security by leaking this essential terror-fighting tool on the front page of a leading newspaper. Shame on the Times, shame on the plaintiffs, shame on Jimmy Carter, and most of all shame on Judge Taylor.
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The NSA Decision: Judging Without Facts or Law 154 Comments (0 topical, 154 editorial, 0 hidden) Post a comment »
As far as I can tell there are currently 14 active judges on the Sixth Circuit. Of those, 1 is a Carter appointee, 1 is a Reagan appointee, 1 is a Bush 41 appointee, 5 are Clinton appointments and the remaining 6 are Bush 43 appointments. There are also 8 Senior judges - 3 Careter appointees and 5 Reagan/Bush 41 appointees.
The decision and the ultimate scope of the reversal will probably depend on who sits on the panel that is drawn. Having more Republican appointees - especially Bush 43 appointees may be better in terms of engaging in a more broad review of the grounds of decision.
Secondly, under the 6th Circuits Rules, a majority of active judges can vote for an en banc rehearing where there is an "exceptionally important issue" to be determined. Regardless of the decision, the Administration and/or Plaintiffs may seek such review, in which case the Republican appointees hold 8 of the 14 seats - enough to provide for such a full Court review.
This opinion boils down to the one word: the program "obviously" violates the Fourth Amendment.
Literally, the Amendment forbids unreasonable searches and seizures and proscribes the issuance of Warrants without probable cause. It does not quite require a Warrant, regardless of what the Court (or any other Court) has said.
Without an explanation of why this data mining of international communications is "unreasonable" or why the Amendment even applies to international communications, the opinion is worthless.
I agree the standing analysis is weak . . . but at least the Court attempts to explain it. The Court does not even address why the program is unreasonable, except to state that it is obviously so.
You should try reading the Fourth Amendment a little closer.
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.
When you eliminate all of the prepositional phrases, the sentance boils down to "The right shall not be violated but upon probable cause." That means any search requires probable cause, not just that they be "reasonable".
tiring of you, also.
I could just as easily say "high school logic" because your statement is a legal non sequitur given the amount of case law that allows the interception of communications, spoken, electronically or visually transmitted.
You haven't been here long enough and certainly don't have enough credibility to presume to correct anyone.
Let's see, the Supreme Court has upheld suspicionless stops at borders to intercept illegal aliens (US v. Martinez) at sobriety checkpoints aimed at catching drunk drivers (Michigan v. Sitz) and probably at license and registration verification checkpoints (Delaware v. Prouse). In fact, that highly conservative justice Sandra Day O'Connor wrote the following in Indianapolis v. Edmond (and yes, I know its dicta):
"the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. . . . The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction."
So, I'm afraid, "probable cause" is not the lynch pin of complying with the Fourth Amendment, "reasonableness" is.
Let's see, the Supreme Court has upheld suspicionless stops at borders to intercept illegal aliens (US v. Martinez) at sobriety checkpoints aimed at catching drunk drivers (Michigan v. Sitz) and probably at license and registration verification checkpoints (Delaware v. Prouse). In fact, that highly conservative justice Sandra Day O'Connor wrote the following in Indianapolis v. Edmond (and yes, I know its dicta):
"the Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route. . . . The exigencies created by these scenarios are far removed from the circumstances under which authorities might simply stop cars as a matter of course to see if there just happens to be a felon leaving the jurisdiction."
So, I'm afraid, "probable cause" is not the lynch pin of complying with the Fourth Amendment, "reasonableness" is.
The argument against standing to sue in this case imposes an impossible burden of proof. You claim that the journalists who sued failed to show they were actually surveilled. Evidently you reason that only those who've been illegally surveilled have standing to sue, yet you do not offer any means by which those who've been illegally surveilled might be able to make such a demonstration. This is ridiculous.
In a case that is so violative of civil liberties, on such a broad scale, the doctrine of standing should not be used to prevent an adjudication of the case on its merits.
In a case that is so violative of civil liberties, on such a broad scale, the doctrine of standing should not be used to prevent an adjudication of the case on its merits.
I take it this is "obviously" true and thus needs no reference to the law to back it up?
--
"In this day and age, you're not going to get a fair shake in the media" -- Lance Armstrong
Warrantless surveillance of electronic communications, and ignoring FISA, is by definition a violation of civil liberties. FISA was enacted to protect Fourth Amendment liberties.
Until a court at a higher level rules against this program it is NOT "by definition a violation of civil liberties."
This program surveils international communication. International communication was specifically exempted in the 1972 SCOTUS decision that denied the government the ability to have warrantless wiretaps on domestic communications.
I.N.T.E.R.N.A.T.I.O.N.A.L.
It's a big word. Try and comprehend it.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
I vaguely recall the opinion you're referring to, and if I recall correctly, the Supreme Court didn't exempt international communications from the Fourth Amendment. Rather, it reserved the question. However, I'd be pleased to look at the opinion again, if you have a citation.
Regardless of what the Supremes did or did not do in 1972, Congress spoke when it passed FISA. FISA protects civil liberties. The Bush Administration violated FISA. Thus, the warrantless surveillance by definition is a violation of civil liberties.
You are referring to the Keith case (footnote). It was also ruled on more definitively in In Re Sealed Case (FISA court).
In any event, as I think you note here and elsewhere this really comes down to FISA. The question is whether the Art 2 CIC power trumps FISA, or in the alternative, whether the AUMF authorized it. The first issue in particular could be a monumental decision and touches upon a question that has been argued at length throughout the history of the country. It is a very important issue and deserves more respect than she gave it, regardless of the outcome. Frankly, her analysis in this regard is juvenile, and given some of her language, obviously political. Her anlysis with respect to the AUMF (she's not sure the AUMF implied authority to eavesdrop on the enemy?) doesn't even reach legal toddler stage, much less juvenile. Even the CRS understood the issue and the law better.
We can agree that speaking without the government listening in is a civil liberty issue. But it does not follow that preventing the government from listening to conversations with an enemy at war with the US violates any civil liberty. Just ask yourself: would one have any reasonable expectation of privacy (or liberty) in a conversation with Hitler during WWII? No one is at "liberty" to do such a thing.
Justice Jackson answered the question of when presidential powers trump congressional action in Youngstown Sheet & Tube Co. v. Sawyer. Since the FISA law clearly established congressional intent, the presidents power is at its lowest ebb and must defer to the law. As for the AUMF, it makes no reference to surveillance so therefore cannot "implicitly" override the FISA law.
Although Justice Jackson concurred with the majority opinion in Youngstown Sheet and Tube, I believe his 3 part test was his own opinion and not part of the majority opinion. So legally, he answered nothing. One justice's opinion without concurrence from any of the others is not the law of the land.
The precedential value of Justice Jackson's Youngstown concurrence is defined by its later adoption by the court.
Jackson's framework was expressly adopted (and refined) by Rehnquist writing for the majority in Dames & Moore v Regan; it was cited by almost all justices in Hamdan v Rumsfeld in the current "war on terror" context, especially by O'Connor's plurality opinion; it was adopted by both majority and minority justices writing in Hamdan v Rumsfeld. In their confirmation hearings, both John Roberts and Samuel Alito endorsed Justice Jackson's framework, which Alito specifically said should be employed to analyze the FISA issues.
Like it or not, Jackson's Youngstown opinion is apposite and is well settled precedent.
Kinda like anything the ACLU sues about is "by definition" against the best interests of decency and/or our national interest, any ruling by an old, liberal Carter judge is, "by definition" wrong and that Jimmy Carter is, "by definition" the worst president in the history of the country. Do you have a book available on Amazon that establishes "by definition" all violations of our civil liberties? It would be most helpful.
Envisioning when all that is Left is the Right.
why can't you spell and why do you seem not to know legal mumbo jumbo? Did you win some type of drawing like "Clerk for a Day? However, I do see that you have been embued with the Lefts' ability to arrive at factual legal conclusions based upon being simple. How can you be so sure that the "adminstration" violated anything prior to the conclusion of the legal proceedings?
Envisioning when all that is Left is the Right.
Lame.
There is absolutely no doubt in any rational mind that the Administration violated FISA. The Administration implicitly concedes this by arguing that AUMF trumps FISA.
And The Constitution trumps the whole lot.
John
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Why would God invent a thing like whiskey? To keep the Irish from ruling the world of course.
I'm sorry, I didn't know.
With whose rational mind did you check?
Envisioning when all that is Left is the Right.
Look,champ,so far all you've done is insult and blow smoke.
You've misstated the scope of the program. You throw out the howler here about a "rational mind" considering the number of prominent members of Congress, both parties, who have said it is legal. And you insult.
The decision is yours, knock it off or you are gone "clerk for a federal judge" and all.
I've been far less insulting and snide than your regulars who've been communicating with me. Look, for example, at how snide Leon was toward me in each of his posts. If you want to be a bunch of pansies who can dish it out but can't take it in return, go ahead and ban me.
being all that clear.
This was not a dialog it was a demarche.
A smarter man would have recognized the difference...
I appreciate it when people can deliver a message without being snide or hypocritical. Run on sentences bother me, though.
as a non-justiciable case, your earnest protestations to the contrary notwithstanding. If you think the government is doing something bad, and can prove that they've injured you illegally, you get to sue about it. If you think the government is doing something bad, but can't prove that it's injured you in an illegal manner, you get to express your frustration at the ballot box.
I know that this is all very hard to grasp, but there are several decades of uncontroversial precedent on point.
"Our concern for human life must not be confined to the guilty..." - Coker v. Georgia, 433 U.S. 584, 616 (U.S. 1977) (BURGER, C.J. dissenting)
Where've I claimed there's no such thing as a nonjusticiable case? I clerked for a federal district court judge and did more than my share of research and writing on justiciability issues during that time. Please don't stoop to purposefully and dishonestly mischaracterizing my arguments. It ought to be beneath you.
The doctrine of standing is extremely flexible. The District Court Judge made an adequate argument in support of it. That's not to say she couldn't be reversed on appeal. If it is, however, it won't be because she violated some hard and fast precedent. It will be because the reviewing court prefers not to reach the issues, and is using standing as a technical defense to avoid the issues.
I was thrown off by your suggestion that if a particular alleged violation of the law produced no plaintiffs with standing, judges should invent standing so that they could hear the case anyway.
I wonder when I'll get to learn how that isn't the same thing as suggesting that there's no such thing as a non-justiciable case.
"Our concern for human life must not be confined to the guilty..." - Coker v. Georgia, 433 U.S. 584, 616 (U.S. 1977) (BURGER, C.J. dissenting)
I should explain that I do favor judicial resolution of this issue, if constitutionally possible; which means that the state secrets issue should be hashed out first to determine whether the discovery to uncover injury-in-fact can go forward; if it cannot, then I'm afraid that this is simply a non-justiciable case since - as you pointed out - no plaintiff will be able to establish injury-in-fact. The court's willingness to circumvent the constitution and just invent standing out of thin air is no less egregious a constitutional violation than what the administration is alleged to have done.
But of course, this judge isn't named "Bush," so you can't bring yourself to see that.
"Our concern for human life must not be confined to the guilty..." - Coker v. Georgia, 433 U.S. 584, 616 (U.S. 1977) (BURGER, C.J. dissenting)
Comparing the court's alleged invention of standing to the administration's illegal surveillance is preposterous. Surely you agree that there is a case or controversy here. The administration is surveilled people outside of the legal confines of FISA. It admits as much. Now you want to allow the administration to play hide the ball, essentially saying that it can continue to surveil so long as nobody can prove he or she is actually being surveilled. Leon, that's ridiculous. Standing is required to prevent the delivery of advisory opinions. This was no advisory opinion. If the court's decision stands in the end, each of these plaintiffs will be free to make international calls without fear of warrantless eavesdropping.
Do they have to first prove that they have been harmed, or is it not sufficient merely to show some likelihood of success at trial? I know a mere allegation is not enough, but do they really have to prove anything before filing?
If a person cannot detect that they are being harmed, if no citizen can point to the harm, then where indeed is the harm? A foreign citizen becoming unwilling to allow us to commit treason doesn't seem much like harm to me.
It also seems an unequal comparison between the real threat to our nation of people who have a very nasty axe to grind against us on one hand, and a vague feeling of uneasiness that someone is listening to our phone calls with those grinding away at that axe, an axe they would gleefully use to cleave our heads from our necks.
Comparing the court's alleged invention of standing to the administration's illegal surveillance is preposterous.
Only to someone who is predisposed to think that judicial usurpations of power are less serious than executive ones. Which is to say, most liberals.
Surely you agree that there is a case or controversy here.
If I did, I wouldn't have written a lengthy post explaining why these plaintiffs don't have standing. I don't generally waste my time (although I'm making an exception in this thread, apparently.)
The administration is surveilled people outside of the legal confines of FISA. It admits as much.
It has admitted that it surveilled people without warrants. Nobody really knows exactly what they have done because they haven't told anyone yet. Which is precisely what makes any rulings on the merits of this case absurd before the state secrets and standings questions are resolved.
Now you want to allow the administration to play hide the ball, essentially saying that it can continue to surveil so long as nobody can prove he or she is actually being surveilled.
I don't want anything, but a rather long and unbroken line of constitutional precedent declares that if a plaintiff cannot prove both injury-in-fact and causation, they have no standing to sue about it in court. What I want is beside the point.
. Standing is required to prevent the delivery of advisory opinions. This was no advisory opinion.
Exemplary question-begging, especially given that there's still no one who can even vaguely claim that these plaintiffs suffered a concrete injury-in-fact caused by the defendants. That's the definition of an advisory opinion.
If the court's decision stands in the end, each of these plaintiffs will be free to make international calls without fear of warrantless eavesdropping.
Laird v. Tatum declares that this is an irrelevant consideration, as far as standing goes.
"Our concern for human life must not be confined to the guilty..." - Coker v. Georgia, 433 U.S. 584, 616 (U.S. 1977) (BURGER, C.J. dissenting)
and the server ate it. So let me say this. The Court's conclusion that the plaintiffs have standing in this case is consistent with the Supreme Court's most recent discussion of standing, in Friends of the Earth v. Laidlaw. Justice Scalia hijacked the doctrine (judicial activist?) some years ago, and the Court, in a 7-2 decision in Laidlaw restored some balance and reasonableness to it.
once again you misread my argument and extrapolate far more from it than I stated. In short, I disagree that it is necessary to show actual illegal surveillance of a specified individual in order to demonstrate standing. For example, suppose Christopher Hitchens brought an action for declaratory judgment stating that he wanted to be free of warrantless electronic surveillance for all of his international calls, and that the government has admitted to conducting warrantless electronic surveillance of all such calls. Does he have standing? Of course he does.
The present case is analytically indistinguishable. In addition, the doctrine of standing has been applied with great flexibility over the years. When an issue is of great public import, the requirement for showing actual injury has been dramatically relaxed. Likewise, with the doctrines of ripeness and mootness, a case which is otherwise moot will still be decided if the matters before the court are of substantial public interest.
The obvious point you miss here, Leon, is that by my saying that the doctrine of standing should not impede resolution of *this* case, I am not saying that the entire doctrine of justiciability should be discarded. I'm sorry if your mind isn't quite flexible enough to grasp that.
The present case is analytically indistinguishable.
Um, wrong. The present case is trivially distinguishable, inasmuch as the government hasn't admitted to conducting warrantless electronic surveillance of all such calls. The plaintiffs simply do not know if they have been surveilled or if they're likely to ever be surveilled. Any injury they've suffered is, therefore, entirely speculative; they may as well try to claim injury-in-fact on the basis of a NYT report of government orbital mind control lasers and their attendent fear of interstate travel without wearing tinfoil helmets.
This is first-week-of-ConLaw stuff. Absent a decision on the merits of the state secrets issue, which enables us to answer those all-important have-they-been-surveilled and will-they-be-surveilled questions, there isn't even a colorable argument that the harms alleged by the plaintiffs constitute sufficient injury-in-fact to satisfy even the loosest application of the standing doctrine.
The plaintiffs have a reasonable basis to believe they have been or will be illegally surveilled. On that, alone, they have standing. Your analogy to mind control lasers is nonsense. I haven't seen any attorney general speeches justifing mind control lasers based on the AUMF. Try again.
The reasonableness of the plaintiffs' beliefs that they have been or will be surveilled is entirely irrelevant to the question of whether they've actually been, or actually will be, surveilled.
The requirement of standing is concrete and particularized injury: injury-in-fact, not injury-in-theory. Your belief -- however reasonable -- that government is invading your legally-protected interests, without any showing that government is actually invading (or about to invade) your legally-protected interests, cannot rationally be said to rise to that level.
The reasonableness of the plaintiffs' beliefs that they have been or will be surveilled is entirely irrelevant to the question of whether they've actually been, or actually will be, surveilled.
So what? It's not necessary that they actually have been illegally surveilled in order for them to have standing to challenge the Administration's policy. All that should be necessary, to fulfill the case and controversy requirement (remember, that's the core issue here) is that there is a reasonable likelihood that they have been or will be.
The requirement of standing is concrete and particularized injury: injury-in-fact, not injury-in-theory. Your belief -- however reasonable -- that government is invading your legally-protected interests, without any showing that government is actually invading (or about to invade) your legally-protected interests, cannot rationally be said to rise to that level.
The requirement of standing exists to ensure that the court is addressing an actual case or controversy. Your stingy approach to its application in this case is designed to do precisely the opposite -- to ensure that the court cannot address an actual case or controversy. Surely you cannot believe that the administration's use of warrantless surveillance and its circumvention of FISA does not amount to an actual case or controversy. Even Leon admits that he'd like to see the issue resolved.
It's not necessary that they actually have been illegally surveilled in order for them to have standing to challenge the Administration's policy.
Yes.
All that should be necessary, to fulfill the case and controversy requirement (remember, that's the core issue here) is that there is a reasonable likelihood that they have been or will be.
Remove the words "that there is a reasonable likelihood" from that sentence, and it's correct. Plaintiffs can establish actual injury by showing a concrete and particularized past or present harm, or an imminent future harm.
But even if we use your "reasonable likelihood" test, these plaintiffs can't even establish that much. They can say what they believe, based on what's been reported in the news, but if that's dispositive I'm J. Edgar Hoover.
Surely you cannot believe that the administration's use of warrantless surveillance and its circumvention of FISA does not amount to an actual case or controversy.
All by itself? No, it doesn't. The fact that the government might be doing something you dislike, or even something you think is illegal, doesn't magically create a case or controversy.
I understand it completely, you don't like the idea of standing in this case though it seems to be about as close to black letter as you get in the real world but you do like the idea of standing when you appove of the activity. The old justice for me and not for thee rule.
once again you misread my argument and extrapolate far more from it than I stated. In short, I disagree that it is necessary to show actual illegal surveillance of a specified individual in order to demonstrate standing.
You said:
The argument against standing to sue in this case imposes an impossible burden of proof. You claim that the journalists who sued failed to show they were actually surveilled. Evidently you reason that only those who've been illegally surveilled have standing to sue, yet you do not offer any means by which those who've been illegally surveilled might be able to make such a demonstration. This is ridiculous.
In a case that is so violative of civil liberties, on such a broad scale, the doctrine of standing should not be used to prevent an adjudication of the case on its merits.
In other words, you claimed that the absence of an ability to prove injury-in-fact should not be used to prevent adjudication of this case on its merits. A short version of the same argument would be: "I don't think there should ever be a non-justiciable case." If you're willing to retreat from that now, fine - are we in agreement that plaintiffs must show injury-in-fact and causation in order to have their case heard
in court? I only ask because the rest of your comment proceeds on the former assumption (which you disclaimed), rather than the latter, which is the law.
In short, I disagree that it is necessary to show actual illegal surveillance of a specified individual in order to demonstrate standing. For example, suppose Christopher Hitchens brought an action for declaratory judgment stating that he wanted to be free of warrantless electronic surveillance for all of his international calls, and that the government has admitted to conducting warrantless electronic surveillance of all such calls.
The rather glaring and obvious distinction which you have missed is that the international calls of Christopher Hitchens are a subset of "all such calls" in this hypothetical. Draw a Venn diagram if it helps, I promise it works out.
In simpler terms, in the hypothetical you have just laid out, Christopher Hitchens can prove that the government has actually engaged in illegal surveillance of his calls. Which makes me wonder why you would lead off this section with "I disagree that it is necessary to show actual illegal surveillance of a specified individual in order to demonstrate standing," and then proceed to lay out a hypothetical in which the plaintiff can show actual illegal surveillance of his calls in order to satisfy standing. The mind boggles.
Does he have standing? Of course he does.
Again, because he can prove actual surveillance of his calls.
When an issue is of great public import, the requirement for showing actual injury has been dramatically relaxed.
I'd love to read a precedent supporting this proposition. Any precedent at all. Especially one that would make me believe that the Court has reversed its increasing willingness to invoke "political question" doctrine and "prudential" exemptions to standing (much to the chagrin of most liberals.)
The obvious point you miss here, Leon, is that by my saying that the doctrine of standing should not impede resolution of *this* case, I am not saying that the entire doctrine of justiciability should be discarded.
If the doctrine of standing doeos not impede resolution of a case in which the plaintiffs can demonstrate neither injury-in-fact or causation (which apparently leads a judge to deciding the merits of a case based on press releases), then indeed you are saying that the justiciability doctrine should be discarded.
Or at the very least, discarded when it is convenient for you.
"Our concern for human life must not be confined to the guilty..." - Coker v. Georgia, 433 U.S. 584, 616 (U.S. 1977) (BURGER, C.J. dissenting)
Where've I claimed there's no such thing as a nonjusticiable case? I clerked for a federal district court judge and did more than my share of research and writing on justiciability issues during that time. Please don't stoop to purposefully and dishonestly mischaracterizing my arguments. It ought to be beneath you.
The doctrine of standing is extremely flexible. The District Court Judge made an adequate argument in support of it. That's not to say she couldn't be reversed on appeal. If it is, however, it won't be because she violated some hard and fast precedent. It will be because the reviewing court prefers not to reach the issues, and is using standing as a technical defense to avoid the issues.
and I never clerked for some freaking federal judge. I'm just an average citizen with a wife and family who would very much like to live out the remainder of my life and have reasonable confidence that my family, and yours, will do the same.
Personally I am up to my eyeballs with all the legal ramblings. We are at war. I know this is an unpleasant fact, its unpleasant to me. But a fact it is. We are at war, and I did not stay at a Holiday Inn Express last night.
John
---------
Why would God invent a thing like whiskey? To keep the Irish from ruling the world of course.
For example, do you agree that the Japanese should have been imprisoned during WWII? What I'm trying to get at is this: Even if we are at war, which to my mind is quite debatable, where does the rule of law end?
keeps nitpicking, which they will, and the threat keeps growing, which it will, the tracking pf phone calls will seem unimportant. The people of this country will eventually reach the point where the Japanese internments will look like a Girl Scout picnic. That point will be reached when the first nuclear device detonates in midtown Manhattan. But by God the left kept those neo-Nazi Bush types from tracking someone's phone calls so everything will be fine.
Since you doubt that we are at war, no amount of argument short of another massive death total may convince you, and even then it is umlikely.
John
---------
Why would God invent a thing like whiskey? To keep the Irish from ruling the world of course.
You just took an academic legal argument and made it personal.
Take it from the father of a US Marine who had 35 men in his unit killed so you run your mouth without fear of being taken and dumped in shredder late some night, we are at war.
Take it from a guy who knew people who died when the planes hit the Towers. We are at war.
Take it from a guy who deals daily with military families whose sons are somewhere on the planet, they just don't know exactly where and they don't know when they'll hear from them again so you can sleep in your warm comfy bed. We are at war.
Take it from people who steal a sweaty t-shirt from their son when he's home on leave and seal it in a plastic bag so they can be able to remember the aroma of their kid on those intolerable days when they haven't seen them for months or heard from them on a clear line in weeks. We are at war.
Take it from a dad who disconnected his door bell so the Casualty Assistance Team couldn't ring it. He hoped it would keep his son alive. Trust me, we are at war.
And you are a complete, drooling idiot.
-----
If "pro" is the opposite of "con", what is the opposite of "progress"?
John
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Why would God invent a thing like whiskey? To keep the Irish from ruling the world of course.
I know in my heart that man is good. That what is right will always eventually triumph. And there's purpose and worth to each and every life.-Ronald Reagan
because at present the jargon is over my head, but to me the moral argument seems pretty straightforward. A democratic society invariably makes tradeoffs between liberty and security. I draw the line closer to liberty than most of my peers right and left, but this hardly seems an unreasonable infringement of civil liberties in light of the threat, even if its magnitude is appraised conservatively. As compared to Lincoln and FDR's actions the PATRIOT Act and the warrantless wiretaps seem absolutely trivial, but then again the enemy is not your Southern neighbor or the second-largest industrial power in the world but an amorphous band of uncertain efficacy. In this case the aforementioned tradeoffs are minor and perhaps impermanent. Were war with China to break out, the tradeoffs might be far more severe.
The line is drawn where it has been drawn for every administration since FISA was passed, with the exception of Carter although his AG differed and that is at foreign surveillance. POTUS has the constitutional authority to conduct foreign surveillance and doesn’t need court approval to do so.
In addition, I’m not a lawyer either but I do understand a little bit about executive authority and understand Hamilton won the argument over 200 years ago that the American presidency would not be an executive that simply executes the will of the legislature under the guidance of the judiciary. The American President has inherent authority to take action, particularly in the area foreign surveillance regardless of Congress’s usurping wishes through FISA. That was essentially the position of the Reagan, Bush 41, Clinton and Bush 43 administrations, as well as Carter’s AG.
It is your slippery slope fear that draws a line that would have prevented the Roosevelt administration from listening to the Nazis calling agents in the United States without a warrant. It is your argument I find to be in the extreme and unreasonable.
I'm interested how the case can be "so violative of civil liberties, on such a broad scale", when not a single plaintiff can properly establish injury in fact. How do we know that anybody's civil liberties have been violated, until and unless they demonstrate that this is so?
I'm also interested in understanding why the plaintiffs' difficulties in establishing injury in fact are either the government's, or the court's, problem. You seem to be suggesting that because the plaintiffs would have a rough time showing standing, the rules of standing ought to be relaxed. Why?
Isn't the fear that the government will illegally eavesdrop on your communications, so that you refrain from making them, sufficient to comprise "injury in fact"?
What kind of injury do you demand they suffer? A broken limb?
I am afraid that you may make another post like this one and injure my sense of reason.
Envisioning when all that is Left is the Right.
The problem is “TSP” has not been restricted to international communication. It is also used for surveillance within our own borders. Which is illegal.
a plaintiff whose wholly domestic communications have actually been intercepted, or whose wholly domestic communications will imminently be intercepted, can feel free to allege that injury in court. Until one does, there's still no standing to sue.
"The government might eavesdrop on my conversations," is the very definition of a speculative harm. Speculative harms cannot satisfy the injury-in-fact element of standing; harms must be concrete and particularized.
Neither can your fear of a speculative harm, or actions you take or forbear based on that fear, legitimately constitute a concrete, particularized injury to a legally-protected interest. The law does not permit plaintiffs to bootstrap their way into federal court through paranoia.
A sufficient injury, in this case, would have been if the plaintiffs had actually been surveilled, or were actually about to be surveilled. It is not the perogative of the court to relax the rules of justicability merely because the facts of the case don't favor the plaintiffs' standing arguments.
You do a poor job of accurately characterizing the argument for standing. It's not merely a question that "the government might eavesdrop on my converstions." It's more like this:
1. The government has admitted it has a wide-ranging electronic surveillance program that it is conducting without warrant. It is believed that the program is so wide ranging that virtually every telephone communication entering or exiting this country is recorded.
2. The plaintiffs are among those who routinely make international calls to discuss private matters.
3. The plaintiffs wish to conduct such conversations free from unwarranted governmental intrusion.
This is easily adequate to meet any reasonable justiciability concerns.
It is believed that the program is so wide ranging that virtually every telephone communication entering or exiting this country is recorded.
This is the plaintiff's own self-serving assertion. They have no actual knowledge of the scope of the program or whether their calls are likely to be intercepted. Plaintiffs' beliefs about the scope of the program do not, without more, constitute a basis for conferring standing.
The plaintiffs wish to conduct such conversations free from unwarranted governmental intrusion.
And it's entirely possible that they are presently able to do so. The plaintiffs demonstrated absolutely nothing suggesting that their conversations are or will be, in fact, subject to unwarranted governmental intrusion.
This is easily adequate to meet any reasonable justiciability concerns.
Just like it's "obvious" that the case is violative of civil liberties on a widespread scale? I'm sure that argument-by-assertion carried you to great success in your purported federal clerkship, but I generally prefer to argue the law, itself.
1. It's far more than a self-serving assertion. Note the litigation against AT&T for allowing NSA to build a facility that sucks a copy of every single communication that goes through AT&T's pipes and put it into NSA's database. There is reason to believe that NSA has identical arrangements with all other major telecommunications providers.
2. Since you concede there is some probability that the plaintiffs will be surveilled without warrant, let me ask you what probability you'd be willing to accept as sufficient to confer standing? If there is a 99% chance that they will be surveilled, is that enough to have standing? If so, how about 80%? 50%? Where are you going to draw the line?
There is reason to believe that NSA has identical arrangements with all other major telecommunications providers.
Except, you know, for the major telecommunications providers (BellSouth, for instance) who've refused to cooperate with the program.
Since you concede there is some probability that the plaintiffs will be surveilled without warrant let me ask you what probability you'd be willing to accept as sufficient to confer standing?
I don't concede that at all. I have no idea whether the plaintiffs' international communications are likely or even possible targets of the NSA program. Neither do you, and most importantly, neither do they. As I have pointed out to you repeatedly, the harm they are alleging is purely speculative.
Resolve the question of whether these plaintiffs are actually being spied upon, or are actually about to be spied upon, and we can ascertain their standing to sue. Otherwise, the case is not justicable, and these plaintiffs can vindicate their interests at the ballot box.
I know in my heart that man is good. That what is right will always eventually triumph. And there's purpose and worth to each and every life.-Ronald Reagan
but really...far too simplistic to apply to the world we see from here. Where do you find the "purpose and worth" of terrorists who slit the throat of innocents?
to alert us before their far worse brethren attack. Don't try to make every inspirational thought about the eventual "rightness" of the universe into a provable factoid.
In the long run, we're all dead. In the very long run, so is Earth and the human race.
Democrats on Iraq: "We don't want to win. We just want to quit."
Isn't the fear that the government will illegally eavesdrop on your communications, so that you refrain from making them, sufficient to comprise "injury in fact"?
What kind of injury do you demand they suffer? A broken limb?
IANAL, but my uncle won't vote because he believes the gov't is building a massive database of our voting patterns so they can track us.
Does he have standing to sue based on his fears? Would he have standing if the NYT published a report supported by anonymous sources that he was correct? What if the administration admitted that we have voter records that indicate whether or not a person voted?
Is the fact that there is definitely some kind of surveillance program sufficient to prove that these particular plaintiffs have been surveilled, or that they are reasonably sure that they have been?
I meant what I said and I said what I meant. An elephant's faithful 100 percent.
aware of the administrations program?
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
All of the Plaintiffs contend that the [NYT disclosure of the] TSP has caused clients, witnesses and sources to discontinue their communications with plaintiffs out of fear that their communications will be intercepted.
Nice insight, that. If these plaintiffs and others were "harmed" by their inability to commit treason because of this program's chilling effects, then the NYT should be shut down and sold as parts. If they were not harmed, they should get out of court.
--
More brilliance such as that can be found at the Academy. And yes, I know how pretentious I sound.
First, you must have a reasonable expectation of privacy, which does not exist in an international phone call. Search and seizure is different when the border is concerned, allowing much more intrusive searches, for the very reason of national security/integrity of borders/sovereignty, so certainly phone calls can be no exception. I guess if you are on Osama's friends and family phone plan, this idiot Carter judge does not think the real law and constitution apply!!!
A reasonable expectation of privacy in an international phone call is not required in order for FISA to be applicable. However, I would argue that it is quite reasonable for all Americans to expect that their government will not eavesdrop on their international conversations without probable cause. A phone call from an American citizen to some person outside the nation's borders is far different from a border check upon entering the country.
aware of the administrations program?
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
First, you must have a reasonable expectation of privacy, which does not exist in an international phone call.
Why would one assume that, ipso facto, one does not have a reasonable expectation of privacy on an international phone call? What about a phone call to Puerto Rico? What about a phone call that begins and ends in the US but is routed through Canada (like all Blackberry e-mails were)? What about a phone call to someone on a ship in international waters?
The law may very well draw the distinction you draw, but I don't see a principled reason (at the moment) for it to do so. And, in any event, it does not address the objection under FISA -- which, to me, is the objection that properly dooms the NSA wiretap program. The Fourth Amendment arguments are close and nuanced; I lean toward seeing no violation of the 4th here (confessing that I'm no scholar). But I've yet to hear a halfway plausible response to the FISA argument. (Inherent power to violate the law? Bah. That argument went out with Tarquin II.)
For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.
Remember how he'd submit his proposed budgets to the Etruscan Senate? Or how he'd enforce laws he'd expressed opposition to during his campaigns?
Or do you refer to Bush's decision to crown himself King for life? Or how he had the heads of the Noble families rounded up and executed?
Congratulations, von. You've managed to become mockable. I do it all the time; this is probably the first I've seen it out of you.
Why would one assume that, ipso facto, one does not have a reasonable expectation of privacy on an international phone call?
I'm not sure you have that expectation on any call.
What about a phone call to someone on a ship in international waters?
It's sent by radio, so none, zip, zero, zilch.
But I've yet to hear a halfway plausible response to the FISA argument. (Inherent power to violate the law? Bah. That argument went out with Tarquin II.)
The Executive has asserted, for two hundred and twenty years, give or take, its powers, enumerated and unenumerated under the Constitution. The power to ignore the pronouncements and statements of the other branches when those pronouncements and statements conflict with one of its enumerated powers has been a staple of the Executive for two centuries, and the dictatorship somehow managed not to manifest.
The Judiciary made up a set of powers out of whole cloth. Congress regularly asserts its powers (and crafts new ones) at will. Where's your railing against that? What power does Congress have to restrain the Executive's warmaking, short of the purse and Impeachment?
Oh, I get it: You're against extraconstitutional assertions of power. You're going to join me in undoing that incorporation nonsense, and then on to Marbury v. Madison, right?
No?
Oh, maybe you just have certain preferred assertions with which you're comfortable.
If we're debating aesthetics, I'm keen on the ones that end up with dead and captured bad people, not the ones that allow nine robed men (and women!) to order the State to stand by as millions of children are killed, thanks.
-----------
Even those who learn from history are surrounded by those doomed to repeat it.
Remember how he'd submit his proposed budgets to the Etruscan Senate? Or how he'd enforce laws he'd expressed opposition to during his campaigns?
....
Congratulations, von. You've managed to become mockable. I do it all the time; this is probably the first I've seen it out of you.
I was thinking more of the precedent of his son. By anyway: (1) I was and continue to be eminently mockable, even ignore the above example, and (2) I wasn't saying that Bush = Tarquin. Nor did I say that Bush was behaving as Tarquin (much less son-of-Tarquin) did. I said that this particular argument went out with Tarquin. And it did: this particular argument is a bad, bad argument.
I'm not sure you have that expectation on any call.
From the government? Sure you do, ergo, warrants for electronic survelliance. Ergo, too, eavesdropping laws.
The Executive has asserted, for two hundred and twenty years, give or take, its powers, enumerated and unenumerated under the Constitution.
I'm less interested in what the Executive asserts and more interested in what the Constitution says. The Federal Government is a government of limited power. The executive is merely a part of the federal government: he is an executive of limited powers within a government of limited powers.
Oh, I get it: You're against extraconstitutional assertions of power. You're going to join me in undoing that incorporation nonsense, and then on to Marbury v. Madison, right?
No. I cleave to the rule that, where Congress expressly speaks on an issue wherein it has primary power, it trumps the executives inherent power. Remember, Congress is granted the power "To make rules for the government and regulation of the land and naval forces". The President is merely "commander in chief of the Army and Navy of the United States ... when called into the actual service of the United States", which are required to operate under the rules and regulations set forth by congress. Congress legislates; the executive executes.
Congress provided for FISA. The President may not disregard it.
Oh, maybe you just have certain preferred assertions with which you're comfortable.
I don't think that follows from anything that I've said.
If we're debating aesthetics, I'm keen on the ones that end up with dead and captured bad people, not the ones that allow nine robed men (and women!) to order the State to stand by as millions of children are killed, thanks.
A non sequitor. But still:
For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.
I will leave Thomas to pick you up on the law, as he does it with such elegance and precison, but the notion that arbitrary rule went out with Tarquin is bizarre in the extreme. The Roman Republic was every bit as arbitrary as the preceding monarchy and the succeeding empire. Retroactive legislation was commonplace. Just ask Cicero.
The notion that government is subject to the law is much more recent than that. It depends, for a start, on the notion that the law is something other than the government's will. Socrates made a noble stand for this, but it lasted all of one day, before the Demos simply overrode pre-existing law. Hebrew law was no different. The story of Solomon and the baby may demonstrate the King's wisdom, but also that he had the power to cut babies in half if it was his whim.
No, the separation of government and law dates from 1154, and the development of the Common Law. The first specific description of government being _subject_ to the law was in 1215. Go to Philadelphia, you will see the Magna Carta on display there for this very reason.
None of this is to say that governments did not make just decisions before 1215, or that all decisions since then (even in Common Law jurisdictions) have been just, but the notion that a government even *could* be accountable to the law is more recent than you suppose.
Quentin Langley
Editor of http://www.quentinlangley.net
I will leave Thomas to pick you up on the law, as he does it with such elegance and precison, but the notion that arbitrary rule went out with Tarquin is bizarre in the extreme. The Roman Republic was every bit as arbitrary as the preceding monarchy and the succeeding empire. Retroactive legislation was commonplace. Just ask Cicero.
The problem with a brief historical allusion is that you run the risk that it will be misunderstood -- not merely misunderstood by those who don't know history, but misunderstood by those who know a lot of history and think you're drawing point X from history when you really draw point Y. (The Peloponnesian War gets that a lot.)
My point was not that Tarquin was or was not arbitrary; or that the Roman Republic was or was not arbitrary. My point was that Tarquin was overthrown ("went out") because both he and his son believed themselves to be above the law (i.e., the rape of Lucretia, the overthrow of the last Etruscan king (Tarquin II), and the formation of the Roman Republic). That's all I meant. And, for clarity (again), I am not comparing Bush to Tarquin, Tarquin's son, or, indeed, any historical figure. I am saying, again, that the argument that the executive has the inherent power to disregard written law went out with Tarquin -- which it did.
For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.
The idea that the executive branch of government in the US has only those powers which Congress deigns to grant it is of recent and leftish origin. Every president from the Founding down to the present, along with every Supreme Court, has taken the approach that the executive has certain powers which the other branches may not infringe upon. It's called the "seperation of powers doctrine". Under this doctrine it is entirely apporpriate for one branch of government to disregard, ignore, and otherwise thwart attempts by competing branches to infringe on its authority.
So the argument that the executive has the power to disregard written law did not go out with Tarquin. I can easily think of a great many circumstances where the executive has a positive duty to ignore written law e.g when it conflicts with the Constitution.
Under this doctrine it is entirely apporpriate for one branch of government to disregard, ignore, and otherwise thwart attempts by competing branches to infringe on its authority.
Go here:
http://www.redstate.com/stories/featured_stories/the_nsa_decision_judgin...
Per the Constitution, Congress gets the last word on this issue. If Congress speaks (as it did with FISA), the President must obey.
For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.
The Constitution does not say that Congress gets the last word on this subject. Linking back to your own comment making that same assertion is not helpful.
FISA does not say what you think it says. The FISA court itself held that neither it nor Congress may infringe on the Presidents rightful powers to monitor enemy communications. If you have any facts to support your argument now might be a good time to bring them out.
>>the executive has the inherent power to disregard written law went out with Tarquin -- which it did.
No, it didn't. It was never even challenged until after 1215, which was the better part of 2,000 years later. Prior to 1154 the executive WAS the written law. There was no question of the government being subject to the law because the law was nothing more or less than what the government said on any given day. And your anachronistic use of the word 'executive' is feeble. The Roman Senate was the executive, legislature and judiciary in one.
Quentin Langley
Editor of http://www.quentinlangley.net
No, it didn't. It was never even challenged until after 1215, which was the better part of 2,000 years later. Prior to 1154 the executive WAS the written law. There was no question of the government being subject to the law because the law was nothing more or less than what the government said on any given day. And your anachronistic use of the word 'executive' is feeble. The Roman Senate was the executive, legislature and judiciary in one.
You're not getting me. I'm making a narrow point regarding Tarquin II's overthrow. I'm not making a broad point regarding (1) whether governments are required to obey themselves or (2) whether the constituents of governments are required to obey themselves or (3) when (1) or (2) started to change or (4) the relationship of ex post facto laws to either (1) or (2).
In addition, your views of SPQR -- particularly the powers of the Roman Senate of the Republic in wartime -- are so bizarre that I have to be misreading you. Yes, modern concepts of executive break down (to a degree) when discussing the Roman Senate. But the broad notion of an executive (e.g., a consul) being bound by law (e.g., to step down after a year) was known in the Roman Republic.
For we have a peculiar power of thinking before we act, and of acting, too, whereas other men are courageous from ignorance but hesitate upon reflection.
I understand that, and hate to go on about this, because it is something of a threadjack. The problem is that you are making a very narrow point and you wrong as to all its particulars.
The notion of government being above the law did not 'go out' with Tarquin. Apart from the fact that it is the normal way of doing business in the majority of countries today, it continued unchanged and unchallenged in Rome throughout the city's existence as a state and an empire. It was not questioned in any way until 1215.
Individual consuls changed, but consuls qua consuls made up the law as they went along. The turnover of individuals - when it was not arbritrarily suspended - is no evidence that the organs of the state were accountable to the law. At the end of a consul's term of office, the person who had been consul ceased to be consul. The OFFICE was still empowered exactly as it had been before.
Quentin Langley
Editor of http://www.quentinlangley.net
We have two fundamental disagreements that we've gone over ad nauseam, that I don't think are subject to resolution here:
I'm less interested in what the Executive asserts and more interested in what the Constitution says. The Federal Government is a government of limited power. The executive is merely a part of the federal government: he is an executive of limited powers within a government of limited powers.
...
No. I cleave to the rule that, where Congress expressly speaks on an issue wherein it has primary power, it trumps the executives inherent power. Remember, Congress is granted the power "To make rules for the government and regulation of the land and naval forces". The President is merely "commander in chief of the Army and Navy of the United States ... when called into the actual service of the United States", which are required to operate under the rules and regulations set forth by congress. Congress legislates; the executive executes.
On the first paragraph, if I must accept the fact that the government's power grows beyond the explicit enumerations of the Constitution -- and I must, as must you, if you want to, say, keep the incorporation doctrine -- then there must be a framework in which to evaluate that and not launch an open rebellion. I adhere to Scalia's standard: The text means what it meant at adoption, and as modified and accepted by the sovereign people through the centuries. Thus, I probably need to resign myself to incorporation in much the same way you need to resign yourself to the view of an expansive Executive during war, because although those things have no explicit grounding in the Constitution, they have been accepted and made part of our understanding of our government for decades upon decades now.
On the second paragraph, spare me the choice sophistry. The portion to which you refer deals with the internal regulation of the military and its organization, not to the direction of foreign policy or military action. Those latter things belong, and have belonged since the ratification of the Constitution, to the Executive. To allow Congress to direct these things is to gut the thing that the Executive is charged with that does not involve execution. If the Founders had meant the President merely to relay orders along the command chain, they would not have called him "Commander in Chief." The term Commander has a very specific meaning in this context; had they meant General, which would have implied certain limits on his capacity to direct and make judgment calls, they would have said so.
Congress's power is preeminent where the Executive's is nonexistent; to allow any legislation to supercede the Executive's act in his Constitutional capacity is to arrogate too much power to the legislature.
And while we're at it, let's not forget two key points: (1) The Congress has two powers at its disposal which destroy all other arguments: The purse and impeachment. (2) It is undisputed that the activities here at issue were known to members of Congress who for some reason chose not to immediately begin destroying the Executive's budget or preparing articles of impeachment. Apparently, they didn't feel that his acts undermined the current Congress's will. If you have an argument, it appears to be with the Legislature, not the Executive.
But we've had this debate before, to no avail. I leave to the side the rest of the nuance, as neither of us will convince the other of a thing.
As to the rest:
I was thinking more of the precedent of his son. By anyway: (1) I was and continue to be eminently mockable, even ignore the above example
Only because you participate in the hatefest that is Obsidian Wings. Otherwise, this really is the first of what I've seen.
I said that this particular argument went out with Tarquin. And it did: this particular argument is a bad, bad argument.
When you get to Heaven, be sure to tell Lincoln this. He assuredly had no idea. Mention it to John Kennedy, Lyndon Johnson, and Woodrow Wilson if you get to the other place. Your guess is as good as mine where Franklin Roosevelt might be hiding, but he'd probably like to know it, too.
And if you happen to run into any Member of Congress from the relevant time periods, share with them, I beg.
From the government? Sure you do, ergo, warrants for electronic survelliance. Ergo, too, eavesdropping laws.
You confuse "an expectation of privacy" with "a reasonable expectation of privacy." We engage in the polite fiction that email and telephone transmissions work along secure lines; anyone who remotely understands the underlying mechanics knows better. This is why most law firms with the time and the savvy put those disclosure notices on their intranet communications as well as their ordinary email.
We engage in the polite fiction that what you send by phone and by email is private to make people feel better. This does not make their better feeling reasonable; it does not lend their expectation of privacy any real weight.
Congress provided for FISA. The President may not disregard it.
Congress undertakes all sorts of constitutional and unconstitutional, and situationally-constitutional and situationally-unconstitutional acts all the time. Let's not pretend that just because you like the act and its application here, it has some sort of near-Constitutional-amendment weight.
I might add that Congress has not impeached this terribly unpopular President for disregarding this Act. That is, I hate to break this to you, suggestive, unless you mean that one Congress may bind by act a later Congress.
I don't think that follows from anything that I've said.
It's actually perfectly logical. The worst possible interpretation of what the President has done is no worse than his predecessors for two and change centuries have done, with nary a peep from the People. You object to it because you don't like it. Our Robed Masters, working specifically against the well-expressed intentions and meanings of the folks who wrote the Fourteenth Amendment, expanded it (and their power) and I've yet to see your earnest railing against that little power grab.
This is a matter of mere preferences. Let's not make more of this than need be.
A non sequitor. But still:
Merely because one thinks before one acts, does not make one less wrong. I hate to break that to you.
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Even those who learn from history are surrounded by those doomed to repeat it.
First, you must have a reasonable expectation of privacy, which does not exist in an international phone call.
Can you provide the case citation for that?
I don't mean some inference based on border searches or inbound mail -- which would require the government to go to court and win that iffy inferential argument -- but an actual, decided case that has established the principle you claim regarding international phone calls.
I have seen this legal unicorn mentioned occasionally in blogs as if it exists, but no one has ever pointed to it.
How can the US provide an assurance of privacy at all? One end of the phone call is outside its jurisdiction. Anything could happen there. If you are calling somebody in the USSR or Saudi Arabia or Pakistan or anywhere else, you have no reason to assume the call is private.
I'm sorry. I was just referring to the science. Judges are generally science-illiterates. I don't -- and in practice, have never -- expected them to understand anything more advanced than that gravity works, and, if it's a good day, objects of different weight fall at the same rate.
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Even those who learn from history are surrounded by those doomed to repeat it.
Could someone explain to me, how the program violates my First Amendment Right? The only right I don't want violated right now, is my right to not have my a$$ blown to bits over the Atlantic. These people must be that conceited, to believe the NSA has nothing else better to do than sit around listening to them telling their spouse what they are making for dinner. This is a Liberal judge in Detroit, and a lawsuit filed by Liberal groups. These groups don't give a damn about our security, only them being right. At least they'll know that their civil rights weren't tread on, when they're in free fall from 30,000 feet over the ocean.
only them being right."
Hammer meets head of nail.
Democrats on Iraq: "We don't want to win. We just want to quit."
Remember when dealing with the liberal/left set, that it's ALWAYS about them. Everything in the universe revolves around them. Bush is trying to spy on THEM. The government is always monitoring THEM. THEIR right to dissent is being abridged by the "Bush regime".
Read Dr Sanity' posts about the left and narcissim.
The best part about this decision and ones like it is after the next attack gets through and is not caught like the last couple. The day after that attack we will be forced to hear a chorus of Dems screaming two things:
1) How this attack proves that the “we fight them over their so not to have to fight them here” is wrong or in short it proves we are not safer but more at risk because of IRAQ.
2) How if Bush had just spent more money on Homeland Security instead of diverting our resources to IRAQ it all would have been OK.
I am so tired of the Dems playing both sides and getting away with it. I can’t stand the fact we have no Leadership that will call the LLL’s out Newt is the closest I have seen so far (considering leaders that have a chance at getting to lead as president, Rush ect not counted). Bush’s heart and mind is in the right place but the poor guy cant even sell a freekin “war of survival” we find ourselves in. With some leadership rallying the people the nation would still be screaming “lets roll!”, years of allowing Dem/LLL attacks with no direct counter calling them out early on has led to a passive mood of the 90’s again.
I have come to 3 conclusions that have made me think of a question that I really dread to think about. The conclusions are as follows
1) 90’s I realized that the attacks were going to continue and only get worse and worse
2) 9-11 I realized that the pain had reached a point were just ignoring the attacks could no longer be done.
3) Lately I have concluded after Lebanon/Iranian interview Syria celebration Norks saber rattling Chavez rushing to show solidation with the Radicals “resistance” whatever. These things have made me realize that this war will continue until our utter surrender there is no limit to our current enemies expansionist thirst for world domination and concessions. It will only get worse.
Now the Question that bothers me to contemplate:
How many dead, how many attacks, how many useless cease fires, how many loses, how many lost allies, how many sacrifices to the alter of appeasement, how much blood, how much pain must the west suffer before what is left of the strong stand up with the support of the majority and check the pansies/LLL/Dems so they can do what must be done whatever that entails Whatever.
Our enemy today will accept nothing short of our UNCONDITIONAL ABOSLUTE SURRENDER AND SUBMISSION. There is no compromise with this enemy there is only Hudna’s between the enemies next expansion. The only question is How much until the west does what must be done whatever that entails.
Let's also pass a law to track every car in America. And cars suspected of intending to hit other cars will be detained indefinately without trial or lawyer or due process. You know what? Alcohol contributes to 25,000 of these deaths a year. Let's ban alcohol, too. You know how we'll know you're drinking illegally? How about we monitor your phone records, emails, and collect all the numbers of people you call in order to see if you might belong to a drinking or driving group.
We have here an Age of Aquarius Stargazer who can't see the difference between a car accident and a terrorist plot to murder infidels. How do they manage to get through the sign-up process?
I meant what I said and I said what I meant. An elephant's faithful 100 percent.
that they can play all sides is that they are the opposition party and thus not bound to offer concrete legislative proposals (even at election time). Were they in control of the House or the Senate they would be compelled to propose and support GWOT legislation, but until then they are free to have their cake and eat it too. Annoying? Perhaps. But I'd rather some of their leadership boil my blood on occasion than actually have power to effect their conception of foreign policy.
Why are you [Geminis] so scared of terrorists? 3,000 Americans died on American soil because of terrorism in the past 5 years, and that's awful, but get a grip, that's 600 people a year. 125,000 Americans die each year on American soil because of auto accidents. You'd give up any right to have the right to not be killed randomly? Okay, let's ban cars. People will die so long as cars are allowed to infiltrate our borders! Give me a break! You people are crazy.
Let's also pass a law to track every car in America. And cars suspected of intending to hit other cars will be detained indefinately without trial or lawyer or due process. You know what? Alcohol contributes to 25,000 of these deaths a year. Let's ban alcohol, too. You know how we'll know you're drinking illegally? We'll monitor your phone records, emails, and collect all the numbers of people you call in order to see if you might belong to a drinking or driving network. You'd better not have any friends that drink or drive, because if you do, you might be a drinker and driver too. I hope you like the color orange!
Watch your #$#$%#$ language.
John
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Why would God invent a thing like whiskey? To keep the Irish from ruling the world of course.
It's the intent. Alcohol isn't out to destroy our civilization -- it is quite happy continuing to be the source of it.
--
More brilliance such as that can be found at the Academy. And yes, I know how pretentious I sound.
There are a few reasons 3,000 people died on 9/11:
** The WTC towers stayed standing long enough for the other 47,000 or so to get out.
** The Pentagon was able to withstand the impact of a plane
** Brave men & women took matters into their own hands and sacrificed themselves to save countless lives
If these murderers had succeeded on a grander scale in 2001...if their dreams of a country in panic and turmoil had been realized...if we hadn't responded militarily...it would have been ONLY THE BEGINNING. The death toll over the last five years would be way higher than some stupid alcoholic drivers would manage. It would be higher than any military losses we have suffered. It could have ENDED the United States as we know it.
Have you forgotten the fear? The screams? The balls of flame? The desperate souls jumping to their deaths? The dust settling over miles of Manhattan skyline? Have you visited the gaping canyon that is the WTC footprint? These things do not generally result from auto accidents. They are called ACCIDENTS for a reason -- they are not commonly planned. They are not designed to strike fear into our hearts.
We are not scared of terrorists. We are determined to eliminate terrorists from our lives.
Your "arguement" is completely baseless. Get a new one.
When the only tool you own is a hammer, every problem begins to resemble a nail. -- Abraham Maslow
to randomly shoot down an airliner once a month. Afterall, some number of people are going to die in some form of accident in the same period so there is no net difference. And it has the salubrious side effect of satisfying the terrorists need to kill us and remove the necessity from them.
John
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Why would God invent a thing like whiskey? To keep the Irish from ruling the world of course.
Let's also ban idiots who press the 'submit' button a bunch of times. That'll hurt your argument.
Cut the personal invective, cut the snark until you have some credibility, and offer substantive argument. You showed early promise, but you faded late.
I've offed three already today. Let's not make you number four, huh?
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Even those who learn from history are surrounded by those doomed to repeat it.
My argument - as ridiculously far fetched, easily challenged, and terribly simplistic as it was - took about a half a minute to type out. As far as I'm concerned, Thomas, you should be more impressed. In my first post on this site, I've managed to score 2 out of 3. Next time I shall follow suit and put formidible resources into writing a ridiculously far fetched, easily challanged, yet intricately detailed argument.
Multiple comments apparently are being caused by the web site returning server not found errors when you click the post comment button.
Now they might have to get a silly warrant - haha warrant, what are those
So we've come to the end of the road. Had you tried commenting substantively, we might not be here.
C'est la vie.
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Even those who learn from history are surrounded by those doomed to repeat it.
The way I read this ruling, the NSA is still free to data mine our phone records looking for potential terrorist connections. When they find something suspicious, all they have to do is request a FISA warrant and they are free to monitor all they want. If they believe that the wiretap is needed immediately, they can start right away and then get a warrant up to three days later. Can anyone explain why this wouldn't work just as well as what they've been doing?
So you are saying that the NSA should monitor all communications, and when it finds something suspicious it should get a FISA warrant allowing it to ... monitor communications?
Data mining, as I understand it, only looks at the structure of the communication, who called who and when, but not the content of the communication, so it would not be considered monitoring. If this process identifies suspect communications, you would have probable cause to obtain a warrant and study the content.
You are assuming that you have a pretty good degree of understanding of how the NSA/Echelon program works, i.e. that it looks "at the structure of communication" and not it's "content".
There are several problems here. Your assumptions about how this secret program operates may very well be wrong. It is equally likely that it automatically listens for key words and phrases and flags certain calls for real time checking by human operatives.
The entire technological basis of FISA is obsolete. Phone calls now longer occur across wires in many cases, but across airwaves which anyone may listen in on. Complaints about "wiretaps" are senseless when no wires are involved.
That leads into another issue - people can now make calls from disposable, untracable cell phones. Again, getting a warrant to "tap" such a phone is meaningless. The only practical way to monitor such communications is in real time, meaning as the call is being made. And not for "structure" but for actual content.
with the idea that warrants are even necessary in these cases is that the Constitution gives the President the charge to protect the nation from foreign threats; not the courts, not the Congress.
Requiring a warrant in these cases is like requiring arrest warrants before the troops go into a battle.
On top of that, most of the arguments put forth in the publicized parts of the decision don't stand up to logic or to precedent.
Democrats on Iraq: "We don't want to win. We just want to quit."
- Requiring a warrant in these cases is like requiring arrest warrants before the troops go into a battle.
Don't give them any ideas. They already want jury trials and beyond-all-reasonable-doubt standards of proof before we lock up enemy combatants.
Drink Good Coffee. You can sleep when you're dead.
Yikes! indeed.
It's really hard to comment seriously on this kind of news. It's a stupid and nonsensical ruling, yet we have to speak out on it until it's overturned.
It's also maddening that this partisan political hack is even on a Federal Bench. Another coup for the Peanut Farmer, whom I also blame personally for the situation we're in with world Islamofascism. As Bugs Bunny would say, "What a maroon."
Democrats on Iraq: "We don't want to win. We just want to quit."
I see with that solution, also reveals a lack of understanding of the nature of the programs. You speak of two distinct programs that are currently used by the NSA. I'm under the impression that the Terrorist Surveillance Program has been scaled back somewhat since the unauthorized disclosure of the classified program by the NYTimes, but "it was an integral part" of the overwhelming success in thwarting the "murder on an unimaginable scale" by British Intelligence.
Participation in the Phone Log Program by all carriers has been mandatory since 10-25-94 when the "Communications Assistance for Law Enforcement Act" became public law. However, data mining is not intended to provide real-time intelligence.
FISA already provides for statutory exemption, and the administration exercised that exemption through the congressionally authorized AUF. In addition to obtaining numerous FISA warrants to surveil suspected terrorists, when applicable, the administration has also incorporated real-time intelligence gathering through the NSA's Terrorist Surveillance Program.
It seems that the adminstration is currently using "all available tools" in its effort to keep Americans safe.
As a side note: Notice CALEA's sponsor in the US Senate.
S.2375
Title: A bill to amend title 18, United States Code, to make clear a telecommunications carrier's duty to cooperate in the interception of communications for law enforcement purposes, and for other purposes,
Sponsor: Sen Leahy, Patrick J. [VT] (introduced 8/9/1994) Cosponsors (2)
Related Bills: H.R.4922
Latest Major Action: 10/7/1994 Held at the desk.(THOMAS- May have to add the colon at the end of the link)
***
"The trouble with our liberal friends is not that they're ignorant; it's just that they know so much that isn't so." - Ronald Reagan
Since there have not been any reported links between the British terror plot and anyone here is the US, how could the TSP in question have been an "integral part" of thwarting this?
what assumptions or facts would make you think that there are no "unreported" connections here?
Perhaps you have some knowledge of connections between intelligence agencies and the NYT??? In which case, if it's not published in the Times it's not happening.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
Head over to Wikipedia and look up their entry on the Echelon program. That will suggest an answer to your question. The "TSP" is not an America-only program, but an international one.
The TSP in question here is the surveillance of domestic communications by the NSA, not exactly an international operation.
you've misstated the scope of this program for the last time.
The TSP is not domestic. It must be international in nature.
Please provide a shred of evidence that the TSP in question entails the surveilance of domestic communciations by the NSA. You are making the same unsubstantiated assumptions as before.
Then explain why you imagine that the TSP is question is somthing brand new concocted by the Bush administration rather than simply the Echelon program which existed long before he took office, and which is an international affair.
I'll check back for your response, if you have any. Try to avoid any more Known Facts.
It's obvious you don't realize, or refuse to admit, that the Terrorist Surveillance Program is international in scope. It most certainly is not a "domestic spy program," as you may have been led to believe.
The NSA provided timely satellite assistance, as well as phone and email intercepts between Great Britain and Pakistan that were obtained through the Terrorist Surveillance Program. "Unreported" is beside the point.
***
"The trouble with our liberal friends is not that they're ignorant; it's just that they know so much that isn't so." - Ronald Reagan
You will find that the Echelon Program monitors virtually all communications worldwide and that the US Canada, Great Britain, Australia, among others are involved in the worldwide monitoring. We aid GB, they aid US. It makes sense that the NSA monitoring program is an extension of Echelon...therefore it is reasonable to assume that we aided GB in taking out the terrorist threat in London.
empty posts?
Oh well, anyway, what I want to say is, I think we need a conservative divestment movement against the NYT. I'd like to see the NYT become an anathma to the right, the same as Caterpiller and Israel are to the left.
La
"Some dogs bark just to hear their own heads roar," my Appalachian granny.
Thanks to everyone who has commented intelligently in this thread, and special thanks to the Baseball Crank for his excellent dissection of the ruling. As usual, I've learned more about this subject and the way it was decided (such as it is) than I really wanted to know. And I almost didn't want to know, because in the process of educating myself about the mechanics of this decision, I learned quite a bit of abstract legal argot but in the end I am more furious than ever at the Carter Administration, the ACLU, CAIR, and yes, Christopher Hitchens.
I think that some of these people really want to other people to die so that a few journalists and avant-garde lawyers can talk to and defend the motivations of the people who are going to kill them. They're sick. They need to be locked up.
It's not the speed that kills you -- it's the sudden stop that gets you every time.
I'm new here, but I must say I've been very entertained seeing how the other side views things. I do have one question to which I seriously crave an answer. Why does the "terrorist servailence program" need to be without warrants or judicial oversight. As the FISA law stands now, the phone/email whatever can be tapped for 72 hours without a warrant. Then, the warrant may be retroactively issued. Secondly, this court acts fast, a judge may be reached at any hour of any day, and they typically approve all warrants (okay they do deny less than 1%). So what's the problem with the current FISA laws? What could be achieved with Bush's program that could not be achieved under the FISA court?
The ONLY thing I can think of is that they want to listen in on conversations that the court wouldn't approve of, political opponent's for example. And before you call me a moonbat, that's exactly what the law was made to prevent, after Nixon did it.
I genuinely do want a factual answer.
Thanks,
-J
"Those who would sacrifice freedom for temporary security deserve neither." - Benjamin Franklin
Read this,http://powerlineblog.com/archives/012631.php and get back to us. The program's legal.
As to why it's necessary to be warrantless -- well, I think the bigger problem is that it's frickin' useless since the NYT's published the first article.
This is the exact problem I've been having trying to get an answer out of republicans, and it is WHY I asked such a pointed single question. Why Warrantless? You doged that question and tried to say the NYT blew it open and that ruined it, as if terrorists have no idea they may be being listened to?!?
On your other point, we're not going to agree on weather it's legal (it isn't), which Is why I stayed away from that, and asked a single pointed question, which you dodged. as for the poster who said this question has been answered so many tines, I haven't seen an answer that satisfied me. I saw someone talking about trac phones, but under FISA law, those could be listened to for 72 hours and then they would need to get a warrant. So please, if it has been answered so many times, answer me this ONE question ONE time, and I'll go back in my volvo and drink my latte ( i do not drive a volvo or drink lattes. I drive an SUV and drink dunkin doughnuts coffee)
"Those who would sacrifice freedom for temporary security deserve neither." - Benjamin Franklin
It seems to be generally believed by visitors to lefty blogs that under FISA the government may place a tap on any phone, then apply for a warrant up to 72 hours later. This is incorrect.
The standard for the pre-72 hour tap is the same one which must be satisfied after the 72 hours is up. Before the government may tap the phone it must already have solid evidence that the phone is being used for illegal activities. So the whole "72 hours" argument is frivolous.
See this;
The reason for the high percentage of approvals has less to do with deference to executive judgment
than with FISA's standard for obtaining a warrant when it involves surveillance of an American citizen or an alien residing legally in the United States. Before the government can get a warrant, the Justice Department must put together a case to present before the court stating the "facts and circumstances relied upon . . . to justify [the attorney general's] belief that the target is an agent of a foreign power" or "engages . . . in international terrorism." And the FISA judges can only grant the warrant when "there is probable cause to believe that the target" is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good. FISA is less about collecting intelligence than confirming intelligence.
And this;
As Attorney General Alberto Gonzales has patiently and repeatedly explained, surveillance cannot begin until the Attorney General makes a finding that 1) an "emergency situation exists," and 2) "the factual basis for issuance of an order under this subchapter to approve such surveillance exists." That means that even in an emergency, the same onerous factual showing that is normally made to a judge must be made to the Attorney General--legal opinions, "minimization procedures," and all. In the meantime, as the days tick off the calendar, the al Qaeda henchman overseas can continue calling his American contacts "with impunity
You cannot listen to a TracPhone for 72 hours, since the criminals will use one to place a ten minute call, then throw it away. If it is going to be intercepted it must be done in real time.
I happen to take issue witht a couple of points, but I appreciate you answering my question directly.
As far as the requirement for the FISA court goes, I think that is a positive. I WANT there to have to be probable cause before a search can take place (and most of the exception to warrants require it), and if it's a matter of timeliness then the 72 hours seems sufficient, but if it's a matter of the executer of the search not having evidence of wrong doing strong enogh to get a warrant, then they should not be searching in the first place.
As far as this goes:
" Attorney General makes a finding that 1) an "emergency situation exists," and 2) "the factual basis for issuance of an order under this subchapter to approve such surveillance exists."
I am NOT comfortable with this, he is in a position that is appointed by the President, he serves at the pleasure of the President. I do not like the lack of checks and balances. This policy is just full of oportunity for abuses.
Thanks again Jon for the intelligent response. I think we have different views on the issue, but I can now understand how someone could see that side of the argument.
"Those who would sacrifice freedom for temporary security deserve neither." - Benjamin Franklin
It's essential freedom for temporary security that Franklin is said to have said is a bad trade.
--
"In this day and age, you're not going to get a fair shake in the media" -- Lance Armstrong
- so I did
"Those who would sacrifice essential freedom for temporary security deserve neither." - Benjamin Franklin
your original question, but central the NSA program in question.
The phone and electronic intercepts in question here are not domestic communications of the kind that SCOTUS, in 1972, specifically said required a warrant. They are are for national security and are international communications, in other words at least one leg of the communication is outside the US.
There is no statutory restriction on intercepting international communications.
Also, you might want to note that the FISA court held that neither they nor Congress had the right to overrule the President's inherent powers under Article II.
Bottom line, in very simple terms, it is the Administration's position that the program is legal because the calls are international and because of the President's Article II powers.
It is the position of the Democratic Party that the President has no Article II powers in this matter and it doesn't matter if the communications are international or not. Remember, these are the same folks who want to grant Constitutional rights to foreign terrorists captured in a foreign country while fighting the US military.
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If "pro" is the opposite of "con", what is the opposite of "progress"?
why is it illegal in time of war for Bush. I thought I saw a Helen Thomas moment above with someone doubting we're at war, proof positive that access to computers should not be allowed in mental institutions.
BTW, FISA courts have ruled that warrantless searches are legal even for Republican presidents, establishing that some laws at least are not like hamburgers, to be flipped over as one likes them.
I didn't read all 138 posts but was reassured that the liberal death wish is still in place. But their must be an easier and, happily for the rest of us, more private path to self extinction. I am willing to cast my scruples aside for an occasional moment and engage as a facilitator in assisted suicide for those who need that extra push. Hours are flexible, agony is optional, and fees are reasonable. However I do require payment up front and cash only.
I await the replies of the serious minded.
"a man's admiration for absolute government is proportinate to the contempt he feels for those around him". Tocqueville
For doing what it took to win WWII? What was the point of beating the fascists in Europe and Japan if we had to become just like them? Isn't that how the argument goes? Everything the liberals throw out against Bushhitlerburton can be multiplied by 10 and said about FDR, but that doesn't seem to bother them.
This will almost certainly be overruled on appeal, probably on the standing or state secrets ground, leaving the Left to howl about a "technicality" and that crow that "the only court that actually decided the question held that Bushitler's program is unconstitutional."