Redstate

1. You said, "any law student with access to Westlaw or Lexis can see - that courts have consistently construed FISA very broadly, and specifically upheld the legality of wiretapping programs identical to the President's under FISA as well."

Since I am not a law student nor do I have access to either of those databases, could you give us an example of one of these court cases that specifically enables the President to engage in wiretaps without consultation with the FISA court?

2. Do you know why, or can you offer a conjecture why, the Administration is citing the 9-11 Resolution and Article II as the legal authority for their actions if FISA does enable the President to engage in eavesdropping without court consultation?

On a personal note, I am disturbed by this whole matter. I think the executive branch may be over reaching in this case, but I may be wrong.  If, in fact, the President has the legal authority to engage in these activities, I would like the President to do a better job of explaining the source of his authority.

that this should be the central question either. Leon, I know that you're only addressing the legal aspect because of accusations from Democrats that George Bush broke the law, violated the Constitution, etc etc. But in your long, well-researched, and I'm sure very persuasive argument, you never actually address why objective, non-rabidly-George-Bush-hating Americans with a concern for civil liberties should feel good about being eavesdropped on without a warrant. I'd argue that if we're going to talk about this, let's talk about it. Let's not talk about whether or not we've done it for years, whether or not Democrats are seeking political advantage in pursuing it, or whether or not it's actually against the law. Too many important questions have sunk out of sight in a morass of politics.

Since I am not a law student nor do I have access to either of those databases, could you give us an example of one of these court cases that specifically enables the President to engage in wiretaps without consultation with the FISA court?

I cited a number of those cases in the post. I don't recall that any of them specifically addressed Presidential power, since the authorization generally comes from the AG - but since the President is the AG's boss, and I'm presuming this authorization also ran through the AG, it follows logically that it would be authorized.

Do you know why, or can you offer a conjecture why, the Administration is citing the 9-11 Resolution and Article II as the legal authority for their actions if FISA does enable the President to engage in eavesdropping without court consultation?

No.

Well, methinks that you haven't actually been briefed on the details of the program. First, the only people whose communications were "intercepted" were those who made international phone calls. Second, unless you are a suspected Al Qaeda terrorist, even your international calls were not intercepted. Third, I have a feeling, although this hasn't been explicitly said yet, that phone calls were "detected" rather than "monitored." In other words, the NSA catches a telephone call from some Al Qaeda guy in, say, Iraq, detects the number it goes to in the United States, and then gives the FBI that number.

That's just a theory I've seen thrown around, but the President seems to have been careful to draw a distinction between "detecting" these calls (which he admits) and "monitoring" them (which he's obfuscated on).

Although we rarely see eye to eye, I really appreciate the work you do, it is top notch. Thank you.

is that if W has been violating the law, then they knew about for years and did nothing until the NYT broke the law in leaking it.

So we have craven defeatocrats knowingly aiding and abetting law breaking by the President until called out on it by the MSM hacks.

So much for their principaled stand.

What is clear is that here the MSM/DNC mzchine hopes to score again as they did with Plame: elevating a non-crime to a criminal level.

Frankly, from Ronnie Earle in Autin calling in people who run political ads against him, to CBS knowing promoting and defending news based on forged documents, to Plame where literally nothing illegal happened to this proper use of the NSA, I am finding it difficult to imagein that the MSM/DNS is operating in good faith in regards to the welfare of this country.

And if you add in their lies and misrepresentations regarding what we are doing in iraq, it becomes impossible.

On a personal note, I am disturbed by this whole matter. I think the executive branch may be over reaching in this case, but I may be wrong.  If, in fact, the President has the legal authority to engage in these activities, I would like the President to do a better job of explaining the source of his authority.

Concur.  The president may have a defensible position here.  The moonbats, naturally, are overreaching -- trying for that oh-so-elusive impeachable offense.  Neither of these two facts should have any bearing how we look at this stuff -- even if in the end it is "legal".

The day we decide to be less vigilant on civil liberties just because it's "our guy" who may be encroaching on them... well tha's a day that should be followed by lots and lots of soul searching.

This is a classic example of moonbattery clouding a very legit issue.  I hate when that happens.

that Karl Rove is sitting in the West Wing, listening to me order pizza.

What disturbs people is not that they were spied on, but that they could be spied on. In tonight's performance of The Crucible, Goody Osborne and Goody Good will be played by "suspected al-Qaeda terrorists" and John Proctor will be played by me, average law-abiding American.

Do I think this program is fascist and unconstitutional? No. Do I think it's leading that way? No. Do I even think it's a bad idea? No. But plenty of people do, and I think we should talk about the substance of the issue rather than rushing to the legal barricades in defense of the president.

If you are disturbed that the government has the technology that would enable them to eavesdrop on your telephone conversations, I have very, very bad news for you. That's not going away.

English is sometimes inexact. Could = have the authority to, not have the capacity to.

in all fairness, Reid says he was only briefed in on this after he became senate minority leader. Which is still months and months ago, but not years.

If you will check that U. S. v. Johnson case I cited, if the government uses information it procures through FISA to prosecute a criminal case, the court will throw that evidence out.

Like I said, I'm not bothered by this particular revelation. I just wish we could talk about the substance of things rather than the politics of them. Though it's tempting to look at stuff like this and blame only the left, I think both sides are fairly at fault.

is pretty bad and indefensible.

Press Briefing by Attorney General Alberto Gonzales and General Michael Hayden, Principal Deputy Director for National Intelligence

I don't find the intelligence gathering program very bothersome. We are at war, even though too many pretend we are not.

What does bother me is the public disclosure of a classified program. If we can spend who knows how much and more than two years to investigate who said what to whom and when concerning the Plame name dropping, we can damned well spend the necessary resources to determine who told the Times.

Federal law, 18 U.S.C. § 798. Disclosure of classified information,

prohibits the disclosure of certain categories of information, specifically including classified information regarding communications intelligence:

(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information-

[. . .]

(3) concerning the communication intelligence activities of the United States or any foreign government;

[. . .]

Shall be fined under this title or imprisoned not more than ten years, or both.

Definitions in the following subsection (b) makes clear the applicability of the act to the leakers and the leaked information:

The term "communication intelligence" means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients;

The term "unauthorized person" means any person who, or agency which, is not authorized to receive information of the categories set forth in subsection (a) of this section, by the President, or by the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States.

Senator Reid is correct in calling for an investigation, but it is the leak and leakers that requires attention.

If you don't have access to Westlaw you can go to FindLaw.com.

There you can read the US code for yourself as well as look at the decisions of all Supreme Court cases and most Federal cases.  There you will learn, among other things, that Leon's characterization of art. I sec. 9 was not just wrong about who has the power to suspend the Writ of Habeas, but also about when the Writ can be suspended. (see ex parte Milligan).

You can also learn that the cases Leon cites do, as he says, authorize the government (not the President) to tap the communications of our enemies (and even our friends).  The cases certainly suggest that AQ is a legit target.

BUT... you will also learn that these cases all involved getting a warrant from the FISA established court.  The Bush administration did not get this warrant and that is the problem.  In essence, the Bush Administration is asserting the power to determine who is a suspect and how to investigate them.  What happened to checks and balances and separation of powers?  How about the ideas of limited government and enumerated powers that we conservatives fight for?

There has been no Congressional oversight as Leon suggests.  Telling a few leaders in Congress is not the same as notifying Congress.

I am dismayed by the President's over reach.  Now, Leon, you might like to just write me off as a liberal namby pamby, but that would be a jay's trick.  You would also have to write off David Keane (head of the Conservative Union) and George Will who have also criticized the President here.

A bunch of the blame goes to Congress which - once again - has failed in its duty to oversee the government.  The Dems should receive particular scorn for acquiescing in this.  You watch, Pelosi et al will now scream that they protested this when first told.  Yeah, right.

Here is what I want to know" Why?

The FISA procedures work pretty well.  Why did Bush choose not to use them?  Maybe there is a reason that will make sense, but I am skeptical.  But even a lame reason would be better than the ridiculous justifications (art. II and use of force resolution) offered so far.  It reminds me of the Mieres flop.  Every couple of days a new justification will be rolled out and shot down until all that is left is the truth.

50 U.S.C 1802 does give the power to conduct warrantless surveillance, but also states(and you failed to include) that it is only permissable when:

1802(a)(1)(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party;

A U.S. person is defined as either a U.S. citizen or foreign resident alien and has nothing to do with whether someone is also "an agent of a foreign power" under FISA.  If Bush was purposely targetting U.S. citizens without a FISA warrant then his actions were a clear violation of the statute.  

for your excellent post regarding the legal aspects surrounding this issue.  This is exactly the type of groundwork that needs to be laid before rational futher discussion can ensue.

He is a craven poltroon, along with worthlessMurtha, plasticPelosi and the rest.

the President may not question their patriotism, but I believe it is becuase there is no question left regarding the issue.

You are mistaken, the Constitution does not give the President the power to suspend Habeas Corpus. Article I is titled "The Legislative Branch." The power to suspend Habeas Corpus is granted to Congress, not the President.

The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. - (Article I, Section 9, Clause 2)

Additionally, I believe the trigger for suspension of Habeas Corpus is more restrictive than you state. There is no or before "when the public safety may require it.

in cases of "Rebellion or Ivasion" or "when the public safety may require it" - (Leon H, above)

A correct parsing of the sentence in the Constitution would rewrite, "If, during Rebellion or Invasion, and only when the public safety may require it, then may Habeus corpus be suspended.

1. I already issued a correction on the Art 1, Sec. 9 thing.

You can also learn that the cases Leon cites do, as he says, authorize the government (not the President) to tap the communications of our enemies (and even our friends).  The cases certainly suggest that AQ is a legit target.

BUT... you will also learn that these cases all involved getting a warrant from the FISA established court.

Um... no. From U.S. v. Falvey:

To place the constitutional issues raised by these motions in focus, some appreciation of history is required. Over forty-years ago, under orders from President Franklin D. Roosevelt, the Executive branch began to conduct warrantless electronic surveillance in "grave matters involving the defense of the nation."

. . .

Even Congress avoided the issue of its constitutionality. Indeed, in 1968 when it enacted Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. ss 2510 et seq., which prohibits most warrantless electronic surveillance, Congress specifically refused to regulate foreign intelligence electronic surveillance and, instead, "left presidential powers where it found them."

. . .

Even if the President has "inherent" constitutional power, pursuant to his Article II foreign policy powers, to conduct warrantless searches, "Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure ...."

. . .

Although neither the Supreme Court nor the Second Circuit has passed on the issue, three Circuit Courts have ruled that the Fourth Amendment does not require a warrant for electronic surveillance involving foreign intelligence and foreign powers.

I could go on, and do this for all the other cases, but I'm a bit constrained by time today.

In essence, the Bush Administration is asserting the power to determine who is a suspect and how to investigate them.  What happened to checks and balances and separation of powers?  How about the ideas of limited government and enumerated powers that we conservatives fight for?

Right. The opinions I just cited dealt with that. There's also Congressional oversight, etc. Second, you don't have to pretend to be conservative, I've read your posting history.

There has been no Congressional oversight as Leon suggests.  Telling a few leaders in Congress is not the same as notifying Congress.

Actually, when it comes to Congressional oversight regarding intelligence gathering, quite a few programs are reviewed only by the ranking member of both parties on the intelligence committees. It seems that this got even more oversight than that.

I am dismayed by the President's over reach.  Now, Leon, you might like to just write me off as a liberal namby pamby, but that would be a jay's trick.  You would also have to write off David Keane (head of the Conservative Union) and George Will who have also criticized the President here.

You're certainly entitled to be dismayed. The extent of this post deals only with whether it was a violation of the law.

Civil liberties mean nothing if you are dead.

Is there one instance of anyone being falsely charged as a result of the patriot act. As a result of the so-called spying?

So answer the question . . . what have we lost? Cite one case, one person, what, anything, please tell me.

BTW: Don't bother to cite civil liberties of terrorists.

Once the war passes, as in WWII, the laws and tactics that are being used right now to protect the country can be rescinded, did we forget what is enacted into law can be withdrawn at a later date. That might be a new concept to some . . . As a side note anyone know history? Remember FDR and the Japanese-American citizens? Abraham Lincoln, suspending habeas corpus.

Personally, I wonder where these numbsculls were when President Clinton was building his database of gun owners. Talk about blatant civil liberties violations.

All this is moot if you are dead. Think about that for a few minutes.

Although not germane to legality issues, it is interesting to note that the most notable suspension of Habeas Corpus was by Lincoln without the consent of Congress. He clearly had the best interests of the country at heart.

I don't understand those at this website who jump to conclusions regarding the legality of Bush's tactics to impugn or question his motives. I am not a huge fan of all of Bush's policies, but it seems to me that at worst, Bush followed a flawed interpretation of the law. As Leon and others have pointed out, the legal issue is murky at best.

DonSF says Bush has overreached, asserted new or broader powers and that the FISA procedures work well. Unless the NY Times is the only source for your news, none of that is clear. Why not wait for all the facts to come out before implying  Bush had ulterior motives with this program?

Thanks for that link. To quote SJ Res. 23:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of 12 international terrorism against the United States by such nations, organizations or persons.

Emphasis is mine. Anyone care to argue that signals intelligence isn't a "necessary and appropriate" incident to war? I see specific Congressional authorization.

The fourth amendment prevents the government from eavesdropping on US citizens unless the government has a warrant.

Bush acknowledged that he did this without a warrant.

Thank you to Leon for alerting me to this thread. I wanted to note a few points in response to Leon's thoughtful post:

(1) Isn't the reaction of Bush-supporting Republicans -- that Bush did nothing wrong whatsoever with regard to ordering eavesdropping on American citizens without a warrant -- just as predictable as the anti-Bush crowd's reaction? Why is the latter more noteworthy to you than the former?

(2) What national security harm even theoretically came from this disclosure? Everyone knew - and hoped - that the communications of suspected terrorists was being eavesdropped on. That wasn't a secret. FISA expressly allows that.

The disclosure was NOT that the Administration was eavesdropping - everyone already knew it was -- but that it was doing so WITHOUT A WARRANT, i.e., in violation of FISA. How could that disclosure even theoretically harm national security?

(3) Nobody is challenging the President's authority to intercept telephone calls of suspected terrorists. Everyone wants the Government to do that. That is not the issue.

The issue is whether the Government can secretly intercept the telephone calls of U.S. citizens without a warrant. The Supreme Court has answered that question in the negative - holding in 1972 that the Fourth Amendment bars the Government from doing so with regard to domestic terrorist groups. Why would you think this would be any different?

Also, the problem is not that the Government is only eavedropping on terrorists, it's that there is a high potential of abuse for a Government - any Government - to able to secretly eavesdrop on its citizens. That's the whole reason why judicial warrants are required -- to ensure that this extremely potent power isn't abused by an unchecked Executive branch.

Do you want President Hillary being able to eavesdrop on the conversations of whichever American citizens she wants without anyone knowing what she's doing and with nothing to limit her power?

(4) All parts of section 1801, including subsections (1)-(3), contemplate conversations between two people where at least one of them is an agent of a foreign state. Thus, if you sit in your house and talk on the phone to a spy of the Chinese Government, our Government can eavesdrop on that conversation under FISA (provided it has a warrant or, if no U.S. citizen is involved, without a warrant under 1802 for up to one year).

(5) Even the Administration has admitted that it does not have the right to engage in warrantless surveillance of terrorists under FISA precisely because Section 1801 (1-3) does not include terrorists, because terrorists are STATELESS organizations and not agents of any state.

As for the cases you cited, wiretapping terrorist organizations is fine under FISA provided that a warrant is obtained first from the court. Again, the problem here is not that they engaged in surveillance on terrorists, but that they did so without first obtaining a warrant as required by law.

(6) EVEN IF you want to argue that terrorists are included under 1801 (1-3) - and, again, even the Administration does not say this - the Administration's warrantless searches would STILL not be legal under section 1802 of FISA because 1802 expressly prohibits, in all cases, warrantless searches where there is a likelihood that the surveillance will result in listening in on the communications of U.S. citizens.

Since much of the warrantless surveillance here was of U.S. citizens, that fact alone renders them illegal under FISA.

you really don't understand?

Those claiming illegality

1. Provocateurs who don't know or don't care about the facts but "Bush lied" is the bottom line to every point they make.
   
2. Idiots who don't know or care about the facts but rely on group 1) for their views.

It isn't that hard to figure out.

I think you've hit the nail on the head.  This is clearly a close call as to its legality, and given the importance of combatting terrorism, I am willing to give the President the benefit of the doubt.  And given that Congress clearly was informed of it, and did not object, there is no reason to go ballistic against the President.

Furthermore, I agree with the President that it is shameful that this was leaked to the press.  If the Congressmen and Senators (Republican and Democrat) who were briefed on this had been concerned, they could have / should have held hearings behind closed doors.  And if it wasn't resolved through the closed hearings, then this might have been an appropriate issue to bring before the whole Senate or House in closed session (as opposed to the stunt Harry Reid pulled a while back).  This is one of those things we have entrusted our leaders to handle for us -- and having both Republicans and Democrats briefed on it provided the appropriate protection against Presidential overreaching.

That having been said, however, I believe that it would be better, on a going-forward basis, to have a more structured way to oversee such broad powers.  Perhaps FISA is too restrictive, and perhaps it needs revision.  Congress can do this.  Until that time, the President should continue to do what he's doing; but Congress should appropriately view what the President is doing as a temporary solution to a long-term need, and provide for a more workable, long-term way for the government to get the information it needs to fight terrorism while at the same time being accountable to someone to not overreach.

 

Searches may begin without warrants as long as warrants are acquired in a timely fashion (within 72 hours). I do not understand there was no attempt to acquire the appropriate warrants.

why there was no....

I hate my keyboard.

I'm not a troll; I promise.  I've been reading about this issue both on here and dailykos and I'm trying to sort through the various angles.

My question is this: the President, as I understood him, says he will use this power only for investigating suspected terrorists.  If there is no oversight of the individual cases of wiretappings, then how do we know he (or someone else down the chain of command) isn't overreaching?  Is there anyway we can see a list of those folks who've been the target of wiretaps (I suspect the response will be that this would alert the terrorists and foil the investigation)?  I'm trying to give the President the benefit of the doubt, but I find this all to be very Orwellian

Can anyone, outside of the NSA and the executive branch, have a look at the list of wiretaps?

If they had obtained warrants within 72 hours, there would be no issue, because they would have complied with FISA.

The whole point is that they purposely decided that they would not comply with FISA based on their view that the President was not bound to comply with that law. There is no real dispute at this point about whether FISA was complied with because even the Administration concedes they did not, and now is focused on justifying why it didn't need to.

Really, this is the whole point. The reason why we have a FISA at all is because the FBI was eavesdropping on all sorts of domestic political enemies of the Administration throughout the late 1960s and 1970s who posed no threat to national security (meaning they weren't engaged in terrorist acts or crimes - just protesting against the government).

Congress enacted FISA to eliminate that abuse by ensuring that the Government could eavesdrop on U.S. citizens only if it first obtained a warrant from a court (just like the Government can only break down your door and search your house if it first has a warrant).

I really don't understand why conservatives want to give the Federal Government this awesome power. You may not mind now becasue there is a President whom you like, but that won't always be the case, and once you give this unfettered power to the President, all presidents are going to have it, not just this one.

I also think that both sides of the aisle are going to be alot more careful about reading the fine print from now on.

"Do you know why, or can you offer a conjecture why, the Administration is citing the 9-11 Resolution and Article II as the legal authority for their actions if FISA does enable the President to engage in eavesdropping without court consultation?

"No." - LeonH

See, this answer encapsulates the one total head-scratcher in this whole issue. And I think the President would go a long ways to tamping down the hardcore Bush haters as well as the middle of the road folks who are concerned with an Executive overreach.

There is a legal question here (which Leon has delved into very well) and there is a common sense question here.

The legal argument will be debated by people with far more legal expertise than I and most people have. However, the common sense argument is one that anyone can weigh in on.

And that common sense question was articulated in today's press conference:

"According to FISA's own records, it's received nearly 19,000 requests for wiretaps or search warrants since 1979, rejected just five of them. It also operates in secret, so security shouldn't be a concern, and it can be applied retroactively."

This is what seems to make a lot less common sense. If the FISA procedure has rejected only 0.03% of all requests, operates entirely in secret, and can be applied up to 72 hours AFTER the eavesdropping has occured, the average non-politically partisan American says, "What's the deal?"

And thus far, whenever that question has been raised, the most honest answer to whether people know why is, as Leon puts it, "No."

This is all pretty much BS and hyperventilation.

1. The Attorney General okayed this. His opinion trumps the opinion of anyone else who has posted here. The experience of the attorneys in DoJ who wrote the opinion and those in the White House who wrote the finding trump the experience of any and all people posting on the subject.
   
2. There is an assumption that FISA covers this. NSA routinely intercepts, translates, analyzes, and makes available to the national security agencies ELINT and SIGINT that come into and out of the US. The NSA is a Defense Agency and we should all be shocked if any court was granting warrants to military agencies to investigate anyone. Posse comitatus and all that.
   
3. The president made clear today that all the intercepts involved al Qaeda connections. Now the learned commentary here is working from the assumption, ludicrous on its face, that this is a law enforcement exercise covered by FISA and not a military exercise. On September 14 a joint resolution was passed that says:

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

Now undoubtedly there are those who have posted here who believe BushLied™ about the al Qaeda connection of those covered by the NSA surveillance. To those I can only say that BushLied™ has been your answer to everything from crop failure to boils on your butt for five years so why would I expect you to stop now.

Some may believe that FISA trumps the use of military force authorized under a joint resolution. Knock yourself out pushing that theory.

why did the executive feel the need to bypass what is a very friendly oversight process here?  Was it an intellectual point (i.e. "we need to re-establish executive authority")?  Or was there some other reason that they did not want to go to the FISA court to try and get warrants?  Were they trying to identify targets for covert assassination?

The questions of legality and all the rest aren't particularly interesting to me.  I'd just like to know why these particular cases were done outside of the FISA process.

here that I for the life of me I can't imagine why Leon answered no.

From today's news conference:

So, consistent with U.S. law and the Constitution, I authorize the interception of international communications of people with known links to al-Qaida and related terrorist organizations.

From the use of force authorization:

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

So if we take at face value the conventional wisdom that al-Qaeda was behind the 9-11 attacks and if we believe that our troops in Iraq are fighting as some level against al-Qaeda people in Iraq. Then the use of force authorization seems to be imminently appropriate.

That's what is irritating about this particular thread is that few facts are known and all manner of blowhards are insisting laws were broken.

how the President defines an 'al-Qaeda connection'. Would giving money to an Islamic religious group draw the attention of the NSA?  Attending a Pro-palestinian rally?  Attending an anti-war rally?  Spending too much time reading dailykos or visiting moveon.org from my home computer?

Note to NSA agent reading this: I only read DailyKos for a laugh and that time I worked for the local DNC  during the 92 Presidential campaign was only to impress a girl I was dating at the time.

he defines is as broadly as possible.

by Wednesday Bush will have violated the Third Law of Thermodynamics leaving only the Law of Diminishing Returns intact :-)

I found out about Redstate during the Miers nomination.  During that time I read your posts with interest - and also agreed with them.  Now...

You seem to argue by attacking the motives or credentials of others.  Anyone who thinks that this NSA authorization is problematic is a liberal who has not read the Constitution.  In this case you say that I am pretending to be a conservative.  Your evidence is my posts here at RedState.

I have posted on three subjects here.

1. Miers where I was against the appointment .
   
2.   Immigration where I have argued against a guest worker program or amnesty and for greater control over our borders.
   
3. The NSA authorization where I argue for a limited government of enumerated powers.

Which of those sets of posts makes you think - gives you the right - to question my self identification as a conservative?

Is it my opposition to Bush on certain subjects that bothers you?  Does criticizing a Republican not meet Leon's definition of conservative?

Did you, perhaps not read my post carefully?

Or, is it the libertarian streak that bothers you.

My guess is the middle one.  Your original post mis-quoted and mischaracterized the Constitution.  A careless error you have already owned up to.  You are similarly sloppy in your characterizations of the cases cited including Falvey.

The precedent set by Falvey was the Constitutionality of FISA.  The Constitutionality was based on the FISA procedures that required a warrant.

You quote the following from Falvey..

"Even Congress avoided the issue of its constitutionality. Indeed, in 1968 when it enacted Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. ss 2510 et seq., which prohibits most warrantless electronic surveillance, Congress specifically refused to regulate foreign intelligence electronic surveillance and, instead, "left presidential powers where it found them."

The point being, I guess, that in 1968 Congress did not legislate on warrantless surveillance of foreigners.  So what, they did in 1978 with FISA and that is the point.  As your Falvey cite explains, Congress has plenary powers to set these sorts of procedures.

I am sorry that you are busy today.  Apparently you were not too busy to go read my past posts.  Why do you care?  Why not address the issues I raise and forget about looking for gotcha material or snippets that you can use to question my beliefs and, well, call me a liar.

I am sorry your are busy because this is an important topic.  If we did go through each case you cited we would find, as I said in my earlier post when I was pretending to be a conservative, that the FISA is Constitutional because it contains due process - i.e.  provisions that require investigators to get a warrant to conduct surveillance within the US.  

But the Constitutionality of FISA is not important.  In his press briefing today Bush made it clear that his authorization was outside of FISA.  The real question is whether Bush's actions were authorized by law.  So far you, Bush, Rice and Gonzales have offered no substantial justification.

Would giving money to an Islamic religious group draw the attention of the NSA?

Was said Islamic religious group part of the "nations, organizations, or persons" determined by the President to have "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"?

Attending a Pro-palestinian rally?

Were those attendees part of the "nations, organizations, or persons" determined by the President to have "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"?

Attending an anti-war rally?

Were those attendees part of the "nations, organizations, or persons" determined by the President to have "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"?

Spending too much time reading dailykos or visiting moveon.org from my home computer?

Were those web readers part of the "nations, organizations, or persons" determined by the President to have "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"?

For those questions I have posed that can be answered in the affirmative, Congress has given the President specific statutory authorization to eavesdrop on your electronic communications.

You are a pretty tough talker for a guy who went home last night to pout.  You, by the way, forgot to take your ball with you.  Oh, you didn't have a ball when you came?  My mistake.

You are setting up a straw man argument which you can barely knock down.

The AG authorized it?  Are you serious?  Are you happy with all the things Janet Reno authorized?  It does not matter what the AG authorizes.  That is not the way our system works.

NSA is headed by a Lt. General and is headquartered at Ft. Mean but is not a military organization.  It is part of the intelligence community.  It is subject to the law.

Your point of view seems to be that anything is legit as long as it is part of the war effort.  Again, that is not the way the system works.  I refer you to your civics book from 7th grade, ex parte Milligan and the Steel Seizure case (aka Youngstown Sheet and Tube).  

Again and again this country has granted extraordinary powers to the President during times of crisis.  We have never, however, granted all powers.  Now, some might argue that this exercise of power is necessary given the circumstances.  That is a debatable point upon which reasonable people can disagree.  The Bush administration, so far, is not really making that argument.  Instead, they are arguing that they have the power to do what they want.

They are counting on people who bow to authority and say, "Well, you know best."  Do these people deserve to be called free?

Streiff,

Quite right, but I meant users at this site. The moonbats are going to do what they always do. I just expect a little better from ostensibly conservative and/or Republican individuals.

You had me laughing out loud until I realized that I was confusing you with this guy. I hope you can understand the source of my confusion and accept my apologies.

I will have more up on U.S. v. Falvey momentarily.

How many times has history shown us that a government given an inch will soon take everything?

Go, my firends, and read the Declaration of Independence.  It is a catalog of abuses by the Executive.

The great trick of self government is how to tame and control executive power.

"This is war" can be used to justify everything.  

I think your answer, which may very well be accurate within the context of the things you cited, further reinforces precisely what I was asking.

In short, you didn't answer my question about what the common sense answer is for why the President needs to unilaterally do this given the current flexibility with the FISA court.

Rather, you answered the question by proving that he has the right to do it. Not why.

Let's stipulate, for arguments sake, that you are 100% correct in your interpretation of the above citations. Personally, I'll let the constitutional experts hash all that out. But again, I'll take your word for it.

The question still is WHY did the President need to do this? And your answer is because he could.

I'm still baffled as to how it is that no one can explain WHY the President needed to do this when by all accounts thus far, he didn't need to. And no one seems to have an answer.

NSA is headed by a Lt. General and is headquartered at Ft. Mean but is not a military organization.  It is part of the intelligence community.  It is subject to the law.

What powers were authorized by Congress?

I can see how you confused me with the other guy.  I did used to live in San Francisco -- I can offer no other excuse than I was born there.  I always felt a bit, shall we say, out of step in that city.  I think I was the only conservative outside of the Marina Dist.

It is not much better now.  I live in DC and work in the military-industrial complex -- which is better than when I was just in the military (better clothes).

Anyway, now I feel a little bad about jumping on you the way I did.  We obviously disagree -- which is fine -- but perhaps we can argue the points and leave the mud slinging to others.

You are a pretty tough talker for a guy who went home last night to pout.  You, by the way, forgot to take your ball with you.  Oh, you didn't have a ball when you came?  My mistake.

I'm the nasty one around here. You've already been bounced once, and the site somehow stayed functional. Correct your current behavioral problem or begin walking.

because I sense you don't have much time left.  Taunting an editor, especially after one has been shown mercy by that editor is generally not accepted as a way to further your posting career here.

The NSA program is legal, and yes, there are certain situations where all that is required is approval by the AG.  From today's American Spectator online:

The regulations implementing FISA clarify the law's exceptions to the requirements for a FISA court warrant. U.S. Signals Intelligence Directive, dated July 27, 1993, is the primary regulation governing NSA's operations. It is a secret document. (We at TAS, unlike the NYT, never, ever, disclose government secrets that may damage national security. What follows is taken from a declassified version obtained from an open source.)

Under Section 4 of USSID 18, communications which are known to be to or from U.S. persons can't be intentionally intercepted without: (a) the approval of the FISA court is obtained; OR (b) the approval of the Attorney General of the United States with respect to "communications to or from U.S. PERSONS outside the United States...international communications" and other categories of communications including for the purpose of collecting "significant foreign intelligence information."

USSID 18 goes on to allow NSA to gather intelligence about a U.S. person outside the United States even without Attorney General sanction in emergencies "when securing the approval of the Attorney General is not practical because...the time required to obtain such approval would result in the loss of significant foreign intelligence and would cause substantial harm to national security." (emphasis mine)

The founders made ONE man responsible for defending the country for efficiency and for accountability. The power to wage war as commander in cheif is the power to kill whoever he, the President, ONE man deems it necessary to kill to defend the country, and, by obvious implication take actions less than killing.

US Citizens that wage war against our country are not exempted. And while the 4th amendment does not apply in war, even it allows REASONABLE searches and seizures which are judged based on the circumstances. In war the previously unreasonable becomes reasonable. See dots not connected on 911.

Too many in this country simply do not understand what war is, define it based on Vietnam or dont care.

But the founders won a war to, well, found us, Lincoln won a war to reunite us and FDR won a war to save the free world. And the latter two make Bush look like an ACLU type.

But there are one or two things the msm and the dems understand and that is introducing legislation incl articles of impeachment.

So they can just have at it. Lets vote.

And we will hold the commander in cheif responsible. Or they can carp on this until Nov 2006 and try the Kerry strategy to impeach him after Nov when they should have  the votes if the American people agree with them.

I think this is about right:  Although I think that these wiretaps are inadvisable as a matter of policy, I don't have confidence that my policy preferences are reflected in existing law or the Constitution.  (Obviously, I hope they are, but maybe they ain't.)  I do have one quibble, however.  The fact that the Constitution talks about a situation in which the legislature* can suspend the writ of habeus corpus says nothing about the legitimacy of this particular search.  Indeed, the fact that the Constitution expressly authorizes the suspension of one but not the other tends to suggest against your expansive reading.  

von

*I'm not sure if this is strictly true, but, despite my ignorance, I'm inclined to hope that you're right that the suspension of the Great Writ really is the province of the legislature and not the executive.  After all, folks in the common law tradition have had experiences with the executive's misuse of the great writ since, say, at least 1215.  It's reasonable that the clause is in Art. I for that very reason.

to make these decisions along with 62,000,000 of my closest friends. Get over it.

1. I respect the AG authority; however, I'll still question if it is right, and so should Congress, because oversight is an important part of our Government.
   
2. The NSA is a part of the intelligence community and as such falls under FISA. Doesn't Directive 5240.1-R "DoD Activities that May Affect U.S. Persons" cover that?
   

Part 1.

A.  Applicability

   This part of procedure 5 implements the Foreign Intelligence

Surveillance Act (FISA) or 1978 (reference (b)), and applies to electronic

surveillance, as define in that act, conducted by dod intelligence

components within the United States to collect "foreign intelligence

information," as defined in that act.

B.  General Rules

   1.  Electronic surveillance pursuant to the FISA.  A DoD intelligence

component may conduct electronic surveillance within the United States

for foreign intelligence and counterintelligence purposes only pursuant to

an order issued by a judge of the court appointed pursuant to the FISA of

1978 (reference (b)), or pursuant to a certification of the Attorney General

issued under the authority of section 102(a) of the act.

3. "...all necessary and appropriate force...".

The current reason for not using FISA, given by the AG, is that this new procedure is faster. I have heard that warrants provided in FISA can be given after the wiretapping begins, if that is true, then how can the new procedure be faster? If there is no reason not to use FISA, then how can this be necessary or appropriate? It was placed in the Act to keep people within legal bounds.

We can't know if the Bush Administration violated FISA's terms without finding out a great deal more about the details of the surveillance at issue.  That said, it is unlikely that FISA has anything to say about that surveillance and, to the extent it does, it is clearly unconstitutional.  

Assuming that the government had good reason to believe that everyone subject to warrantless surveillance was working with the Islamofascists, FISA just doesn't apply.  FISA recognizes the executive authority to intercept the communications of foreign factions.  It excepts such communications where a "United States person" is involved but defines such persons to exclude any nefarious association of foreigners.  If an American citizen becomes part of such an association his communications are fair game.  We have no reason to believe that anyone the Bush Administration subjected to surveillance was not part of any such association.  Until somebody produces some evidence that we've been spying on people who have no ties to Islamofascism, FISA is beside the point.  

If FISA tried to regulate surveillance of terrorists and their facilitators it would be a gross violation of the principle of separated powers.  Keeping us safe from our foreign enemies is an executive function.  Neither Congress nor the courts have much of a proper role to play here.  This isn't criminal law which necessarily involves the courts.  Congress and the New York Times had best return to their sandbox and let the President get on with the urgent business of the day.

We are involved in a war for our survival.  This is hardly the time for pettifogery about the precise meaning of 50 U.S.C. 1801(a)(2, (h)(4)(i)and 1802(a)(1)  The disloyal opposition and their loopy libertarian allies need to grow up and start talking about something important for a change.  

they have stepped in the trap and it has snapped shut on them.  Byron York has the goods over at The Corner on National Review Online.  The DNC, despite Sen. Reid's tortured admission on FNS that he was briefed on the program:

WALLACE: But I want to ask you directly, Senator, because, you know, you're raising an issue about consultation. Were you ever briefed on it? Did you ever object?

REID: Listen, the program has been in effect. It's been in effect for four years, according to the New York Times. I was briefed a couple of months ago. The program had been in existence a long time prior to that time. (emphasis mine)

the DNC has decided to accuse the president of lying about informing Congress.  From a just issued DNC press release:

With his credibility in tatters, President Bush may have fielded questions, but he failed to explain why he may have ignored both federal law and the Constitution in ordering the NSA to spy on Americans. This disturbing abuse of power has become a disturbing hallmark of the Bush administration over the past five years. The President now seems to be hiding behind a false claim that he briefed members of Congress.

In the spirit of the President's newfound candor, we call upon him to correct the record, explain why members of Congress were left in the dark and support an investigation into this secret spying program...(emphasis mine)

Any guesses on how long it takes the White House to release the briefing dates?

The Dems just can't seem to get out of their own way.  The smart play here would have been to feign outrage, demand hearings, and then let the issue fade from the public conscience.  Instead, after Bush paddles them like a drunken fraternity recruit, they bend over and scream, "Thank you sir, may I have another."  Well, they asked for it, and I have a feeling the newly uncaged Rush Director is going to give it to them.

Well, |I didn't know he was an editor, but if taunting an editor who calls me a liar gets me bounced ... so be it.

I appreciate the section you quoted from TAS but it looks like the AG exemption is for US persons outside the US.  I have no problem with that.  But, at least as far as we know, what this case is about is the NSA tapping into the communications of people inside the US (it is unclear whether these are "US persons" or just people in the US).

Your citation also mentions a second possible exemption: when time is pressing.  I do not know about the NSA procedures, but in the area I work in we also have a similar exemption.  However, we must then go back and get our actions ratified."  FISA allows 72 hours in these cases.

This strikes me as legit.  There are times when you have to move quickly, but in our system expediency should never be a sufficient argument.  There should always be some safeguards.

BTW: thanks for the "mercy" link.  I had not seen any of the subsequent posts and did not realize that I had been briefly bounced last night.  The drama is really very exciting.

Leon, you say this:

"the Constitution explicitly states (Article 1, section 9) that the President has the right, in cases of "Rebellion or Ivasion" or "when the public safety may require it" to suspend the Writ of Habeas Corpus."

No it doesn't.  It says this:

"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

Now, the first thing you do is, you accuse Democrats of some imaginary mental illness called "Bush Derangement Syndrome."  You accuse them of being mentally ill because they fail to make excuses for everything Bush does, the way you do.  They accurately accuse him of acting illegally, yet in your mind, this brands them as mentally ill.

In your analysis, you:

a) Fail to pay attention to the provision of the Constitution you are reading, and fail to pay attention to which branch of government the provision you are reading relates to.

b) Fail to accurately read the provision.  The provision doesn't give Congress the power to suspend the Writ of Habeas Corpus "when the public safety may require it."  It gives Congress the power to suspend the Writ of Habeas Corpus "when in Cases of Rebellion or Invasion the public Safety may require it."

The requirements for a suspension of the Writ of Habeas Corpus are rebellion or invasion, COMBINED WITH a need to suspend the writ in order to preserve public safety.  Not, as you falsely claimed, rebellion, or invasion, or a need to suspend the Writ in order to preserve public safety.

So you totally screw up the point you are making, you misread the Constitution, but the problem is that Democrats are mentally ill?

Is that really the problem?

Or is the problem that you're:

Dishonest?

Lazy?

Stupid?

Dishonest and lazy?

Dishonest and stupid?

Lazy and stupid?

Or dishonest, lazy, and stupid?

I posted earlier in this diary on the very same question.

For the life of me, I can't find anyone who can cogently answer the very simple question of WHY the President needed to unilaterally circument the FISA process.

I've heard countless arguments about whether he legally did or did not have the right to do it.

But nowhere does anyone seem to have a grasp on why he needed to do it in the first place.

Very odd.

I wish someone could explain this.

But what if the President incorrectly arrived at the conclusion that I "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001"?  What mechanism is there to validate that he is applying that principle within reason and according to the intent of the law?

I think you are just restating my original questions in another form.  To me, the key phrase is "determined by the President".  Apparently, he can determine that such and such "nations, organizations, or persons" were part of the terrorist attacks on Sep 11 and no one can question his conclusions, as far as I can tell...

Congress' concern about current violations of airline passengers' civil rights may next have it order an end to their  being searched and censored by order of the Bush administration. If the danger of terrorist attack has diminished to the point that detainees now have their own U.S. Bill of Rights, and Patriot Act tracking is no longer needed, can airline censorship and searches be justified ? Democrats will say that the killing of a harmless passenger for saying that he had a bomb makes Americans no better than the terrorists.

What about time? If you catch somebody in Iraq, Afghanistan or anywhere else who's got telephone numbers cached in his cell phone or on his laptop, do you get the FISA warrant in real time, at that precise moment? We know of several occasions where laptops have been seized: what about the 15 suspects arrested in Spain yesterday - did they have cell phones? Seems perfectly reasonable to me.

I've heard countless arguments about whether he legally did or did not have the right to do it. But nowhere does anyone seem to have a grasp on why he needed to do it in the first place.Very odd.

I wish someone could explain this.

Because knowing your enemies operational methods and plans in advance provides a distinct advantage in preventing and disrupting them.

The definitive Supreme Court decision expounding on executive power states:  

"When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."

Can someone on this board please explain how over twelve meetings with congressional leaders does not constitute, in the least, implied authorization?

Current behavior?  I treat with respect those who treat me with respect.  Those who call me a bald faced liar?

Aside: I'm still not sure where the lie was supposed to be.  The quotation was a summary of another's position.  I certainly could have got that summary wrong - in which case I would apologize and correct.

I dudn't realize I had been bounced until Mark (I think) provided me a link several minutes ago.  I am glad to learn that the site functioned when I was bounced last night.  I would expect nothing else.  I am only one person trying to do my part - I have no grand illusion about my importance.  

See, that's what I don't get. This seemingly false issue of time.

The FISA court process can be applied retroactively, a full 72 hours after a wiretap has been conducted.

Right?

That means (and please, anyone with a deeper understanding of the FISA process, correct me here) the government could immediately take action on those phone numbers and being preparing a warrant/authorization request over the next 72 hours.

So, again, why the need to circumvent the FISA process?

 The time factor also helps explain why the President is so angry about this. The enemy obviously knows his signals are being monitored, but he still needs to communicate. Perhaps he was aware of the FISA requirement - he does have his intelligence services, after all, and that possible compromise of his signal security included a built-in time delay dependent on the warrant requirement. Blowing the cover off this tells him quite a lot, I would think.

I do in my job and all I can tell you is that no one in their right mind goes to the bureaucracy for approval unless the are required to do so.

I believe it was Bill Kristol on FNS that had a hypothetical- to go get a FISA warrant you need to be able to show probably cause. If a person's phone # is found on a terrorist's cell phone, is that probable cause to issue a warrant to monitor them? Maybe it is, but very possibly isn't, a person's # could be in there for any number of legitimate reasons (the Moussaui pre-9/11 situation is  an example of this concern being a problem). Why go through the trouble to work through FISA approval in this type of situation if you simply don't have to in the first place. I

Current behavior?  I treat with respect those who treat me with respect.  Those who call me a bald faced liar?

You make two, fundamental assumptions that are factually incorrect.

(1) That I care; and

(2) That the Life is Not Fair Principle™ somehow doesn't apply here.

Once you earn cred, you may fire back with some impunity. You have not. You may not.

I am only one person trying to do my part - I have no grand illusion about my importance.

Good. Then play nice and none of us have to play too close to the razor edge.

Your tagline, by the way, is cruddy parallelism.

How does the "enemy" know our "operational methods and plans in advance" when it comes to the top secret FISA process that Americans don't even know about?

I thought the whole idea around the FISA process was that it was top secret.

So what did the "enemy" know?

Twelve briefings to how many?  If it was to a few in the Leadership how can the Leadership speak for all of Congress.  For that ,matter, how can Congress speak except through legislation.  How about if the President consulted with say, 100 members about spending $33 billion.  Could the President then go spend the money?

If so, under what authority?  If not, how is it different from consulting with some members of Congress and then going off and doing what he wants?

in a resolution that comes after the "resolved" clause has force of law?  Are the "whereas" and "in general" parts disputable premises similar to "If A, then B?"  

Google FISA, second one on the list.

care (point one) then why did you pipe up?

What sort of elitist thinking is this "cred" stuff..  Did you learn that one on the mean streets of your town?

So, RedState is about hierarchy and some can do what others cannot?  Funny, I thought it was about debating ideas and policies.  If I wanted a thought police I would go to one of the liberal blogs.

I take your point about my tagline.  The deep philosophy in yours is so much better.

Did you ever see the Cain Mutiny?  Do you remember the scene at the end when they are all celebrating.  In walks Van Johnson (who had weaseled on the stand; afraid to tell the truth).  F. Murray Abraham (defense attorney) calls him on the carpet and caps of a great speech by spritzing Johnson with a handy scotch and says "Of you want to make anything of that, I'll be outside."

It's a waste of Oban, but...splash.

Pointing out examples of limitless surviellance that occured prior to FISA is hardly compelling evidence that a law was not broken.

FISA specifically restricted surviellance on US persons which were defined as any citizen or person that is here legally for permanent residence.  If no surviellance was performed on such persons, no law was broken.  If there was wiretaps on someone that is here legally then the law was broken.

Also

In fact, it's more than a little strange to assert that the President broke Congress's law with Congressional approval

Under that logic is it even possible for a Congressman to break federal law?  The power to judge legality is given to the courts for good reason.

Resonable people can disagree about the proper role of federal government, but it isn't necessary to misrepresent the facts during debate.

Are you under the impression that because the "terrorists" can Google and read a Q&A on some website, they're going to know what the Top Secret NSA is doing in terms of monitoring them?

Do you really believe that? I mean, honestly.

Heaven help this country if terrorists are able to operate with impugnity and avoid surveillance simply by reading a webpage.

If you don't care (point one) then why did you pipe up?

Words have meaning, just not always the meaning you give.

What sort of elitist thinking is this "cred" stuff..  Did you learn that one on the mean streets of your town?

Leaving to the side the mandatory 911-don't-come-to-my-town stuff, it's a shorthand for "if you don't want to get bounced, don't start blazing with both irons right off." You may accept it or not. I'm all about cause and effect.

So, RedState is about hierarchy and some can do what others cannot?

See "Words have meaning," above.

I take your point about my tagline.  The deep philosophy in yours is so much better.

I figure that it's sometimes better to remain more or less silent and be thought a fool, than to employ bad parallelism and remove all doubt.

It's a waste of Oban, but...splash.

Good lead-in, lousy, cliched ending.

routinely I, and others, have contended that the failing of the Clinton administration was treating terrorism as a law enforcement problem not as a military problem. In short, they didn't take international terrorism as seriously as the 18th century powers took piracy.

The rejoinder from the left is always, "what would the difference look like?"

This is one of the differences. NSA is not a law enforcement agency they are a military agency and I doubt whether they can file for a FISA warrant or be used in conjunction with the execution of a FISA warrant given the limits of Posse Comitatus. I think it is pretty clear that even if they did have a FISA warrant, using that information as part of a criminal prosecution... outside military tribunals or courts martial... would be a clear violation of Posse Comitatus.

If your intent is to kill or to bring under the custody of military authorities as part of an ongoing war, which the Joint Resolution on the Use of Force makes clear exists, then why would you bother?

So the short answer, as I see it, is that if the president is correct and all the surveillance in question had an al Qaeda connection then this is not a legal issue it is a military issue. If it is a military issue it is covered by the president's Article II powers to wage war as circumscribed by treaty obligations and the UCMJ.

So that's the straight answer, it is just profoundly stupid to apply a law to your actions when your actions are not convered by that law.

of those posting on this thread are moonbats. As to why alleged conservatives seem to prefer dead Americans stacked up in the street, I can't answer.

The Attorney General okayed this. His opinion trumps the opinion of anyone else who has posted here. The experience of the attorneys in DoJ who wrote the opinion and those in the White House who wrote the finding trump the experience of any and all people posting on the subject. - streiff

It is immaterial whether the AG okayed this. The issue is whether the acts were legal and constitutional. An example, suppose the AG issued an opinion that, during a time of war, the President had the right to have summarily executed all members of MoveOn.org. (Reductio ad absurdum). Is that AG opinion sufficient to make the act legal?

a plausible argument for the legality of executing every member of MoveOn.org, then you've got a point.

If not, you don't.

I apologize if this has been dealt with, but billing for a living makes it hard to follow 100+ comment threads closely.

Orin Kerr has an excellent post where he concludes that the wiretaps weren't unconsitutional under the "border exception" (probably correct), but that they were illegal under FISA:

http://www.volokh.com/posts/1135029722.shtml

In this, he points to a different problem than has been discussed here.  

FISA prohibits "electronic surveillance" except as allowed by federal law.  Electronic surveillance is defined as:

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . ." (emphasis supplied)

(1) doesn't work, because I think there isn't a Fourth Amendment violation.  Orin ultimately concludes that FISA applies under 2.  I think this might be incorrect.  As one commenter on that thread noted:

Pres. Bush at press conference today:

"So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa."

If this is true, then the actions of the Administration probably don't fall under section (2) either.

So the Administration's best argument actually might be that it didn't conduct "electronic surveillance" under the meaning of the statute. Like I said, I haven't followed this all that terribly closely, so if this has already been debunked, I apologize.

At any rate, I'm counting down the moments until the Administration breaks out the "no controlling legal authority" defense, which actually appears to be the case here.

little man. How's things? Did you enjoy your brief sojour in nowhere land? I see you didn't learn much factually or in behavior from the experience.

The AG authorized it?  Are you serious?  Are you happy with all the things Janet Reno authorized?  It does not matter what the AG authorizes.  That is not the way our system works.

No, of course not. I works with people like you making stuff up as they go along. Which of Reno's legal opinions was overturned? Elian is in Havana. The Branch Dividians are dead. I'm at a loss here. But yes our system does work like that. The AG issues a legal opinion and the government works within that opinion.

NSA is headed by a Lt. General and is headquartered at Ft. Mean but is not a military organization.  It is part of the intelligence community.  It is subject to the law.

If you can't spell the name of the installation I'd be shocked if you knew much about them. First off, the fact that they are headed by a 3-star should have been a clue. They are military. They are part of Department of Defense. They can be tasked by the DNI, but they are military.

Your point of view seems to be that anything is legit as long as it is part of the war effort.  Again, that is not the way the system works.  I refer you to your civics book from 7th grade, ex parte Milligan and the Steel Seizure case (aka Youngstown Sheet and Tube).

First off, you don't know how "the system works" so don't lecture me. Apparently I had a better 7th grade teacher than you did because I know what Milligan and Youngstown say and it is pretty obvious you don't.

They are counting on people who bow to authority and say, "Well, you know best."  

No. They aren't. They are actually counting on people who can read and reason. This is why you aren't someone they are counting on. On the other hand al Qaeda is counting on people like you.

Justice Jackson has been credited with the bon mot that the Constitution is not a suicide pact. And it won't be so long as you aren't calling the shots.

the point.

Let's take another tack at it.

It's 1985 and we're at war with the Soviet Union. A Soviet officer places a call to a spy in the US. The NSA intercepts. Did they need a warrant? If they didn't use a warrant would you be upset?

The point is that if the targeted individuals have an affiliation with al Qaeda why, given the president's congressionally approved authority to pursue persons and groups affiliated with al Qaeda, would the president request a warrant?

As to your point 3, are you saying that because it is faster it is wrong?.

Sure there is a reason not to use FISA. They don't have to.

Bush a criminal for spying? Hmmm. Many Americans are very upset with the revelation that our President has sanctioned wiretaps on our own citizens. I hear countless arguments that Bush has broken the law and should go to jail.

What President Bush is actually guilty of is most likely using bad judgment to make a decision on a snap issue. If this was a crime he may be a repeat offender. However, as of right now President Bush is only guilty of not following proper procedures in regards to having an individual spied upon, he is not legally breaking any regulations or laws established denying his privilege to authorize spying, he basically is just not following the proper rules.

President Bush does have the ability to authorize the use of surveillance on individuals inside the domestic United States when it is shown that this person may be a threat to American citizens.

The problem Bush is currently dealing with is that he has been neglecting the FISA court and ordering the wiretaps directly, citing National Security concerns.

Civil Rights advocates are afraid this power could be manipulated as a way to stop free speech, or opposing viewpoints.

Bush said the program, which allows him flexibility to protect America, was narrowly constructed and has been used with strict adherence to U.S. law and the United States Constitution.

The President may be wrong, he may have really underestimated the reaction to his perceived cavalier attitude, but going to jail, I just don't think that will happen in this case no matter how much his detractors desire it.

Raymond B

www.voteswagon.com

On secret and essential military operations, the Admin is required to brief the leadership of Congress and the chair and ranking member of the intelligence committees and armed services committees (as appropriate).

Those leaders make decisions on this stuff for their parties.  It's the way it works.

If they object to anything, they can use the oversight mechanisms available to them to demand change.  They can pass new authorizing language, pass riders on the appropriations bill (that is classified), or sue the Admin if they think that they aren't acting legally.

That this has been happening since post-9/11 shows that while in private then Dem leaders Daschle, Gephardt and now leaders Pelosi and Reid do actually get this stuff, in public they have to throw tantrums like little children.

We are just gong to have to disagree on "the way things work>"

I work in DC in what Ike and the left might call the military industrial complex and I have some experience on this.  I recognize, for example, that when an administration thinks a covert action is needed the President signs a "finding" and part of the Congressional leadership is notified.

This process was developed to stop Administrations from carrying out covert activities and then the President saying, "Geez, I didn't know anything about it."  The point is accountability.

Now, Bush certainly has little problem there - he is willing - too willing? - to be accountable.  But here, I think is the difference.  This procedure is open.  We all know what it is even if we don't know about the content.

This NSA authorization is ad hoc.  It also seems to me to be unnecessary given the FISA procedure that is available.

Despite some good guesses (see Leon H. for example) I have yet to hear a good explanation for why DISA needed to be by-passed.

Your second point raises an interesting question in my mind.  Why didn't the Dems who were consulted object?  I cannot accept that theses Dems "get it."  I know Pelosi (not the SF in my handle) and she does not get it.  I don't know the other Dems except by reputation through my current job and I don't think they get it either.

My prediction: the Dems will scream that they have protested all along.

We were at war with the Soviet Union in 1985? I missed that declaration.

I would find this a funny example either way, in light of operation HTLingual, involving Presidents from both parties approving the opening of mail that was to be delivered to the Soviet Union (and China). Some people got dinged on that one too.

As to #3, I didn't say it was faster, I said the AG claims it is faster. I can't find any evidence that proves that claim. Getting a FISA warrant, even after you start wiretapping a suspected citizen, should be a slam-dunk if they are associated with al Queda like the President and others are saying.

I'm against wiretapping people within the United States without a warrant implying oversight. I'm against the President saying a shift manager at NSA has more authority to issue wiretaps on Americans than as outlined in FISA. I want oversight, as it was laid out in FISA.

Congress neither wanted nor authorized the President to have the power to wiretap, especially since the NSA can use FISA."...all necessary and appropriate force..." shows the intent to limit the Presidents power in this Act.

I was working under the assumption that you were a serious poster.

My bad.

Forgive me, I won't make that mistake again.

AG opinions are binding on federal agencies. So it isn't immaterial.

And you're right, it is an absurd argument, but in your particular example I don't have an issue and I suspect I could fund a full year of the war by selling tickets to the event and the subsequent video royalties.

and present assumptions. Sorry if I upset you.

you either believe we are at war or not.

If you don't, then you probably have your knickers in a knot over the 4th amendment, FISA, etc.

If you do, then the idea of some "violation" having taken place makes just as much sense as being upset about the same act if we were fighting the Soviets.

I happen to believe the Joint Resolution concerning 9-11 gives the president more than enough authority to ignore FISA.

If Congress doesn't like it, start impeachment procedures because to Bush's credit he said today:

I've reauthorized this program more than 30 times since September the 11th attacks, and I intend to do so for so long as the nation faces the continuing threat of an enemy that wants to kill our American citizens.

So, he doesn't sound particularly worried.

it was you who said that FISA was top secret, not me. Second, disclosure of anything outside of what you can find on the Internet tells the enemy something he doesn't need to know. For example, how much U.S. intelligence services might know about his tradecraft. Having worked in signal security while I was in the Army, and having been in a few NSA listening stations, I think I might know something about it - much less than a genius like yourself, of course, who is so highly familiar with enemy tradecraft that he must understand that the enemy can use cell phones the same way that one-time crypto pads were once used by Army units in the field - 24 hours or less disposability.

  I can think of at least one way that would be foolproof for avoiding the tracing of a cell phone to cell phone call, or a fixed line to cell phone call in less than 24 hours. Do you think I need Google for that? How about the enemy? You should learn some manners when you talk to people.  

you really are stretching the bounds of your comments way beyond the credibility you've earned to date.

of the words "international communications" is this:  a warrant is only required to listen in on conversations between parties wholly within the United States.  Conversations involving at least one party outside the United States do not require a warrant, only approval of the AG.  Hence, I believe the passage I referred to in TAS makes the case that the NSA program was legal.

I don't doubt for one second that you have a vastly more detailed and elaborate understanding of enemy tradecraft, signal security, and NSA capabilities.

I'm not arguing about that. And perhaps we're debating different things, and merely talking past each oher.

But what I have an incredibly hard time understanding is this notion that somehow the terrorists or enemies aren't already doing exactly what you've detailed.

That, somehow, only AFTER hearing about the President's decision to bypass FISA would the terrorists or enemies or spies take evasive measures.

That doesn't make common sense.

Say you are an enemy operative working for the US in China. Wouldn't you assume the Chinese government was doing everything within its technological capabilities to monitor you and hunt you down? Wouldn't you therefore be using every evasive tactic at your disposal?

Or would you wait to hear disclosures through the Chinese press or the Chinese government itself, maybe read some web pages, and adjust that way?

Using your example, if you had a 24-hour disposal, untraceable cell phone, would you wait to hear if the US government could actually eavesdrop on your phone calls BEFORE using such a device, or would you be using it already?

Bottom line: wouldn't you assume the absolute worst and presume they have you under constant surveillance?

So this notion that somehow because it was revealed that the government is survelling people without going through FISA (which they can already do and then apply for a warrant RETROACTIVELY 3 days later), the terrorists are all of a sudden going to become more careful about their phone conversations or what have you strikes me as incredible.

They're bad guys. And (unfortunately) they're often well trained, well equipped, well financed, smart bad guys. They don't need to wait around for confirmation that we're monitoring their calls in order to take evasive measures. They're doing it already.

are reasonable and beyond my ability to answer. The best thing to do IMO is to carefully read General Hayden's remarks at today's press conference here. He speaks about the time factor and efficacy in stopping attacks, as well as the necessity of keeping the program secret. I don't know how they did it, but what's important is that the enemy knows that he was stopped and doesn't know how either. Frankly, we don't need to know how it was done, only that it was done; and for the head of the NSA to appear at a press conference to discuss anything is remarkable in itself. At the risk of pure speculation, it might even be the case that the current FISA protocol, as is, has been compromised. Courtesy is contagious, I thank you for yours.

and I shouldn't know. That's kind of the point of the whole "Top Secret" thing. If we could easily figure it out, the high security classification would be of no practical value.

But without access to the classified information that would answer the question in full, it's possible to speculate about at least one reason the release of information (or any discussion) about this program could be damaging.

Despite their success at causing destruction, and despite their numerous training programs, Al Qaeda is, at least at the "working martyr" level, not populated by highly trained professional intelligence agents. It's reasonable to guess their tradecraft is rather thin and amateurish. If that's so, then it's also reasonable to guess that our effort at thwarting them may have relied significantly on the relatively low quality of their tradecraft. In that scenario, it's horribly damaging to call their attention to the depth and character of our effort to find them out.

Even if that's the full extent (and it's probably not) of the damage this disclosure has done, that's enough to label it "highly damaging".

don't forget that one of the most pressing tactical problems in Iraq involves detonation of IED's using cell phone relays - Michael Yon had a post about how the enemy adapted his methods after we came up with a successful jamming capacity at the tactical, field EW level - a first, I think. As far as their tradecraft being thin and amateurish - I sure hope so, but they have an advantage in that their language - Arabic for certain and Urdu I think, has a built-in numerical structure that would make it quite easy to encode voice communication in normal syntax. In other words, a seemingly innocuous voice message can contain something entirely different -in Arabic, it's a highly elaborate mathematical system that doesn't call attention to itself. In other words, they don't need any trap door codes or complicated algorithms to convey immediate information. In any case, what I found remarkable about General Hayden's comments was that he said that attacks in the US had been stopped, and none of the Bush-hunting reporters seemed to care enough to write about that.

that because of the NYT disclosure, their communications are likely to be harder to intercept now, advantage in coding notwithstanding.

Good point about the Hayden's remarks. The atmosphere at the presser seemed even more adversarial than usual, so that was to be expected.

I think the last time I was called "little man" was by my drill sgt.  He had a chest full of ribbons, but two stood out: one was blue-gold-blue and the other was white with one red stripe flanked by blue stripes.  As you probably know, these are the ribbons for the DSM and silver star.  Like everyone in my company, I was scared to death of the DI and never asked about the details - it was enough to see the Vietnam Medal next to the others to earn our respect.  Anyway, he was inscrutable, but I think he was being ironic when he called me "little man"  - I am 6'3" and 220lb.  If you are ever in DC you can come by and I'll buy ya a beer and we can arm wrestle over it.

You are right to make fun of my typo (Mean instead of Mead) - in a fight a low blow is as fair as a uppercut.  I was going pretty fast there and didn't do as good a job of proofreading as I should have.  LTG Odom (head of NSA in the 80s and my mentor) would dress me down for the lapse.  But, I think, he would understand because he knows that proofreading became difficult for me after I lost my vision in the service in 1991.  He might also cut me some slack because he knows I came back to serve my country after 9/11.  

 But I stand by the substantive point that the NSA is not a military organization.  It is not part of DoD.

1.  Their web site is nsa.gov not .mil
   
   
2. As both of us have pointed out, the head of the NSA is a three star, but the Deputy is always a civilian (currently William Black).
   
   
3.  As you no doubt are aware, the NSA was created by President Truman in 1952 when he issued NSCID no. 9 (National Security Intelligence Directive).  Because of its secret nature, the budgetary and operating authority for the NSA are unclear, but it is generally accepted that they stem from the Intelligence Act of '49.

This is really a definitional point - a nit-pick - but I am happy to go over it.  Functionally, the NSA is very tied to DoD and the needs of the warfighters.  Additionally, many NSA staff are technical experts from the branches.  The command structure, however, is a combination of military and civilian.  (the DoD, by contrast, is a bunch of military layers topped by several civilian layers.)

Hmm... I thought Mrs. Charles was a pretty good teacher, but perhaps I was misled.  Here is what I think and you can correct me if I am wrong.

Ex parte Milligan:  The President cannot suspend the Writ of Habeas Corpus in areas where the courts are operating.  The relevance to this case: the President does not have the power (during a war, a famine or the Super Bowl) to by-pass legislated procedures if they are operating.  My general point was that "we are at war" is not a sufficient justification for Executive power grabs.

Youngstown:  This was my favorite Supreme Court case when I was in grad school.  I loved juxtaposing it with Curtis Wright.  Curtis Wright, as you know, was a case from the first Roosevelt administration that asserted the president had plenary powers to conduct foreign policy.  It was pretty much a dead letter the day after it was handed down, but it is still an interesting insight into Justice Sutherland's mind.  Youngstown is most famous for the separate opinion written by Justice Jackson in which he laid out the three tiers of Presidential authority.  It dovetails very nicely with Edwin Corwin's "invitation to struggle" view of the Constitution and foreign affairs.  The relevance to this case: the Court held that the President could not seize the steel industry even in time of war even to ensure the timely production of munitions.   That is, the President does not have unlimited powers when we are at war.  So, we can argue about where those limits are.

The really cool thing about Jackson's opinion was that, as FDR's AG, he argued on the other side for expanded Executive powers.  When asked about the inconsistency he pointed out that his opinions perfectly matched his job.

I feel your pain.  I also have to work with disagreeable people.  In my case, they are loud mouths who try and shout down those they disagree with and think "you are wrong and stupid and a liar" is a substitute for argument.  I guess people like this are why they have to pay you and me to go to work in the first place.

Please let me know if you find any more typos.

You might want to consider being close to the vest when pursuing support in "operational details". Read General Hayden's remarks at today's gaggle.

I work in Washington too, I think you're differentiating where there's no real difference.

National security 'finding' and Presidential Executive order?  Bush signs both, right?  WH officials then brief leadership, right?

Tom Daschle has admitted as much, that he was briefed.  And if he didn't like the constitutionality he could have done something about it.  Or at least tried.  The same with Reid, Gephardt, and Pelosi.  

I don't really care if they say that they protested, that's a weak defense.  If they actually objected to the policy, they could have used their powers to introduce legislation (even classified legislation) to block the Admin's actions.  That they didn't shows they might understand the need to do something.  They just don't want to take any blame for it.

Maybe I'm in a quirky mood, but the fact that none of them made any effort to block this action seems convenient.  A simple bill, a simple rider to intelligence approps, or a brief to the FISA court would suffice.  Otherwise they are trying to have it both ways.

Politically, that's understandable, I guess.  But as a matter of leadership and gravitas, well, they

are sorely lacking.

...wouldn't recognize leadership if it bit them on the fundament...

1. Got to take your word for it. I've lived in DC, downtown, for 12 years so you're on. My Ranger instructor always referred to the size of my manhood when addressing me so I can't empathize.
   
2. Odom is a tool and I say this from having working experience with him in War Plans Division on the Army Staff and nothing to do with you. While, retrospectively, I put Hoar and a couple of other generals in the tool category I was real sure Odom was a tool the first time I encountered him. But then I place a lot of senior intel types in that category...
   
3. Stick by it if you must, but they describe themselves:

The NSA is a civilian agency in the Department of Defense and is charged with two national missions: providing 1) foreign signals intelligence (SIGINT) information to U.S. Government policymakers and warfighters, and 2) information systems security (INFOSEC) products and services for the Department of Defense.

I don't know what more to say on this.

4. The Supremes didn't think much of ex parte Milligan when they wrote ex parte Quirin. Lots of folks are prone to poo-poo Quirin because they like Milligan but the DC Circuit affirmed the precedential value of Quirin in Hamdan.

To refresh your memory. Quirin and Haupt, US citizens, were captured on US soil, tried by military tribunal, and executed at DC jail without appeal.

5. I'm very familiar with Youngstown - any student of the Korean War is - but I just don't see how one can bootstrap it in here. Let's see on one hand we have the government taking over the operation of steel mills. On the other we have signals intercepts. So you may be able to analogize this, I can't. So I am still at a loss.

<q>Because knowing your enemies operational methods and plans in advance provides a distinct advantage in preventing and disrupting them. </q&gt

I think we all know why the government wants to tap the terrorists' communications.  The question is why the government needs to obtain wiretaps outside the FISA process.  As has been repeatedly endlessly, there is a mechanism for the gov't to start surveillance and then get a warrant.  The big question is why the president decided to go outside of that process.

I think they recognize it, they just shy away from any serious use of it.

Unfortunate, really.

The Democratic Party used to be led by giants, now it's filled with dwarves.

Your response is not what I expected.  I thought for sure you would just call me a liar and demand that I fax my discharge papers and send a picture of me and my cane.  In short, I underestimated you - of which I am glad to be wrong.

Your manhood!  I think you might be a little older than I am because my military was more, shall we say, sensitive.  My DI's restricted themselves to calling me "duckweed."  Thank God there was a guy even bigger than me who got tagged with "Lurch."  It wasn't co-ed yet, but, alas, not exactly nail chewing.  Maybe it is just a reflection of the difference between branches.

We will just have to disagree on Odom.  He was helpful to me when I wanted to come back and serve after 9/11, so he deserves my loyalty.  I have had some heated disagreements with him, but he has always fought fair and I always learned something - even if I didn't always agree.

I live in Brookland and know that area best, but I fancy the Brew Pub in the old Post Office near Union Station.  It is sometimes a little too filled with kids.

You didn't think highly of a lot of senior intel types?  That is interesting.  When I was in I never rose high enough  to work with senior people of any type.  But, there was always the word that intel was a career killer.  I think that has changed somewhat (cf LTG Alexander) but I believe that that has been part of our problem.  We talk about the importance of intel, but don't really follow through.  For my part, I am dismayed by the quality of many of the mid-level and junior people throughout the IC.  Some are great, of course, but others are stones.

Quirin and Milligan.

Quirin is an interesting case that supports the point that I was making when I brought up Milligan and Youngstown.  That point was that the President is constrained in his powers even in time of war.  In Quirin, for example, the Court found that the Nazis could be tried before a military commission because the Congress had explicitly authorized such proceedings (The Court cited the Espionage Act of 1917, the Articles of War and Congressional incorporation of the Laws of War).

But you cited Quirin for a different purpose: as an example of the Court's disparagement of the Milligan precedent.  I don't think that this is correct.

As one would expect in a case pivoting on the use of a Writ of habeas, Milligan is cited several times in this case.  It is first cited (along with Walker) to establish the proper procedural process for the use of a writ.

It is next cited to support the idea that Constitutional rights are not to be lightly disregarded. ("Constitutional safeguards for the protection of all who are charged with offenses are not to be disregarded in order to inflict merited punishment on some who are guilty.")

In the third instance the Court addressed Haunt's interpretation of Milligan.  Haupt argued that Milligan required a Writ to be honored as long as the courts were in operation.  The Court agreed with this, but went further by saying that Haupt was not entitled to a Writ because he was an enemy belligerent.  The Court thought this an important distinction.  Being an enemy belligerent, for example, trumped being a citizen. (1).  The Court highlighted the distinction by saying, "Milligan, not being a part of or associated with the armed forces of the enemy, was a non-belligerent, not subject to the law of war..."

The Court, in other words, did not disparage the Milligan precedent.  They used it in two cases to support their own view and in  the third instance disagreed with Haupt's view on definitional grounds (Milligan does not apply to enemy belligerents.

Recall that my original citation of Milligan and Youngstown was in support of this contention:  The President is constrained in his powers even in time of war.  We have moved a little way from that point, but we are mining a rich vein, so let's continue.

Quirin also supports this point.  The Court said:

 "It is unnecessary for present purposes to determine to what extent the President as Commander in Chief has constitutional power to create military commissions without the support of Congressional legislation. For here Congress has authorized trial of offenses against the law of war before such commissions. We are concerned only with the question whether it is within the constitutional power of the national government to place petitioners upon trial before a military commission for the offenses with which they are charged. equire to be tried by jury."

You see, this was not a case even involving the President's sole powers.  He was authorized to put the Nazis before a military commission.  The only question the Court asked and answered was whether Congress had the power to so authorize the President. (Yes).

Bringing it back to the NSA ...

The important point in Quirin is that Congress authorized, via legislation, the President's actions.  Congress does not appear to have authorized the President to order the NSA to conduct operations outside the FISA.

The President and his supporters have made several arguments regarding the Executive's powers.

1.  Much has been made of the Administration's consultation with Congress.  Consultation with a few leaders is very far from Congressional authorization.
   
2. The President was authorized by the Congressional Resolution allowing force to be used against AQ.  Perhaps a creative interpretation can be applied, but if this is the case what isn't authorized by this resolution?  That is, if the resolution allows the president to by-pass FISA are there any laws the President cannot also by pass if he deems it necessary to fight the war?  Milligan, Youngstown and Quirin all say that there are laws which the President may not by pass.
   
3.  The President is authorized by the Constitution (CinC power).  This will be Bush's best argument, but I do not think it is sufficient.  In Youngstown Jackson argued that the government was at its strongest when Presidential and Congressional powers both supported an action.  The President was weaker when he had to rely only on his own powers.  The President was at his weakest when he had to rely on his own power and was opposed by the powers of Congress. (Jackson, of course, said this better - which is why he was a Justice and I am a worker bee.)

Congress has specified a procedure via FISA as is in their power (see US v Flavey).  The President says that he does not have to abide by this procedure.  He can make the argument.  Congress cannot pass a law that impinges on a Constitutional power of the President's. (see e.g. INS v Chadha which struck down most legislative vetoes).

This is a struggle right out of Edwin Corwin.  Who will win?  I don't know - Congress has become so institutionally weak that I wouldn't be surprised to see them roll over once again.

But, I do know who ought to win.  As a conservative I support limited government generally and a limited Executive particularly.  My reading of history is one of executive abuse.

This is a bit rushed - lunch is just too short to re-read a Court decision and write as well as one wants.  But, hey, this is a blog and not the Book of Deeds.

(1)"Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, [317 U.S. 1, 38]   guidance and direction enter this country bent on hostile acts are enemy belligerents within the meaning of the Hague Convention and the law of war. Cf. Gates v. Goodloe, 101 U.S. 612, 615 , 617 S., 618. It is as an enemy belligerent that petitioner Haupt is charged with entering the United States, and unlawful belligerency is the gravamen of the offense of which he is accused."

I agree with your low opinion of the Dems.  But I don't think we can have it both ways either.  We cannot say they are chumps, and then say the fact that they did not protest is a ratification.  

I go with chumps.

I am puzzled by this lack of protest, but have to - for now - shrug my shoulders.  I am more concerned with my reaction and the reaction of other conservatives.

Perhaps I should check the conservative philosophy at the door while we are at war, but I hope not.  I have no problem with the govt. going after suspected terrorists on our soil, but they have to follow some rules in doing so.  What bothers me about this case is that the Administration has set up its own rules and monitors its own compliance.  I don't trust em enough for that.  I wouldn't trust anybody that much.

I think your "what's the diff" is a good criticism.  The best I can say is that, in the case of covert actions, the procedure is transparent even if the content is not.  In this case everything is opaque.

Given the abuses that occurred in the 60s and 70s (and are starting to occur again) I think I have historically valid reasons to worry about executive claims to eavesdrop without adult supervision.

You also live in DC?  There is another Redstate blogger who lives here and thinks I am a big liar.  I think he wants to punch me in the nose.  I've broken it 5 times already, so it is not like George Clooney is worried that I am about to take his job.  I offered - and he accepted - to buy a beer before we decide where to arm wrestle over our disagreements.  Want to referee?

courtesy begets courtesy. Funny how all that works.

I know Brookland well. I have often attended mass at the Franciscan monastery and I have CD cut by the a capella group that sings for the mass.

The bias in the intel community was everything is a secret. If we know something and tell the operators and the operators act on that information then the enemy will know we know and they'll change their methods. In short, they always seemed to appear to prefer dead troopies to divulging information. That attitude was the pervasive attitude at infantry division level where the G-2/S-2 had an insatiable appetite for info and gave zip back.

While I don't disagree with your discussion of Quirin I think you miss the point. Quirin and Haupt were captured on US soil and, despite Milligan reference not trying US citizens by courts martial so long as civil courts were in operation, tried by military commission. They had no judicial appeal. They were executed the very day Roosevelt denied their appeal for clemency (denied 8am, first execution at 12 noon). The court only ruled on Quirin some two months after they were dead.

So if you are trying to make this a case for executive restrain, I don't see how you do it. To the contrary. The president confronted the court with a fait accompli and the court's only option, short of ordering resurrection, was to acquiesce. Shades of the Indian Removal and Worcester v. Georgia and Andrew Jackson.

I guess I don't agree with your 3-point analysis either.

First and foremost, there is no evidence that FISA was violated. Second, there is no evidence that FISA trumps the Joint Resolution of 2001 which authorizes "all necessary and appropriate" means. Third, it is by no means certain that any court would find that a congressional statute trumps the president's Article II powers as commander-in-chief. Fourth, the constitutionality of FISA, from the standpoint of it being an unlawful restraint of executive action, hasn't been tested and I think in the current context it would be very vulnerable to such a challenge.

The issue for me is not that I don't trust Bush to only authorize this for those who are a threat to us, because I do.  The problem is the slippery slope we put ourselves on.  If we disregards laws against domestic spying we open up the potential for future abuse and denigrate the importance of the rule of law.

I'd agree that the dems lack of consent does not mean active ratification, but more of a passive acquiescence to a distasteful policy, but a necessary one so long as it doesn't get out.

I would agree that I'd prefer that the admin go through a better system of checks and balances, but I don't envision Congress actually giving Bush something that's actually useful.  Technology changes so rapidly, operations change almost faster, and these guys who want to kill us are wicked clever.

I don't think things are quite as bad as the 60's and 70's at the CIA and NSA with domestic spying and etc., and I would be worried if that were the case.  

I'd like to see Congress authorize the program the President has outlined and operated, with appropriate review every 120 days (or something) by authorized folks.  If there's a leak (a la Osama and the cell phone), we round 'em all up, everyone with access to the list, and we put 'em through the now verboten torture techniques to see who did it (or something similar).  Then we shoot whoever leaked it (or something similar).  But I'm hard core on leaks of actual national security issues.

I don't know that it is inherently un-conservative to accept a tightening of civil liberties during time of war, so long as there is appropriate checks and balances.  But if Congress won't actually recognize that there is a threat, unilateral action by the executive to keep more of us alive is worthy or pursuit.  Maybe Congress will figure out now that they need to adapt and change to the modern era and help Bush fight the fight.  I'll not hold my breath.

I'll not call you a big liar till I vehemently disagree with you, and even then I probably wouldn't at that.  To disgree does not mean to be disagreeable.  I'd probably just call into question your lineage or tear you down with biting sarcasm.  :)

As for referring, I'm always game for beer, even more so when someone else buys...