Intel Gathering or Covert Ops?

Within the legal distinction between those two terms, and the determination of which category covers NSA surveillance on Americans, lies the truth of whether President Bush broke the law with his limited disclosure to Congress about the program. So says a new report [PDF] from the non-partisan Congressional Research Service, which lays out the various statutes, and concludes, with much qualification, that Bush's actions (and lack thereof) "would appear to be inconsistent with the law."

Link via Secrecy News, which also points to this Senate-disclosure report showing, among other things, that only 38% of Senate Foreign Relations Committee hearings in 2001 were transcribed and published by the Government Printing Office.

Comments

[Levi Rizetnikof]

Congress would like to claim the power to restrict presidential power -- surprise, self-aggrandizement is an institutional imperative -- but taking those claims seriously is about politics, not the Constitution. The simple fact remains that the Constitution grants the President the power to conduct war -- regardless of what laws Congress passes. And it's not just this President who has claimed those powers -- it's every single one of them, back to Washington.

[Ron Hardin]

Being inconsistent with the law is beside the point, if the issue is which branch of government has what powers. The law is the legislature's will, not the executive's.

If you drop that out of the discussion, then it's empty.

[Ron Hardin]

Being inconsistent with the law is beside the point, if the issue is which branch of government has what powers. The law is the legislature's will, not the executive's.

If you drop that out of the discussion, then it's empty.

[Johnny Clarke]

"Inconsistent with the law" That's good, I like that. Would jacking up a liquor store be considered "inconsistent with the law" or is that just illegal?

[bauertin]

{"... "would appear to be inconsistent with the law..."} ??

....well, a routine bank-robbery might also be timidly characterized as appearing "inconsistent with the law" -- since maybe there was some outside chance... that it was merely an urgent, unauthorized withdrawl by a person without a current bank account (??)

Why is the 'law' such a mystery to even these Congressional research 'experts' ?

They cannot even state a clear and unequivocal viewpoint on the issue.

The rule-of-law ceases when nobody knows what is legal or illegal.

Warrantless Federal intercepts of citizen communications are obviously & outrageously "inconsistent" with the 'law' --- but most average folks would just call'em 'crimes'.

[Levi Rizetnikof]

Refusing to follow a law that mandated you had to burn down a liquor store would not be "illegal," it would be "inconsistent" with the law, if I understand Ron Hardin's meaning. Something is "illegal" only if the law is "legal" to begin with. Congress's attempt to limit the President's power to conduct war may, itself, not be "legal" -- that is "constitutional" -- in the first place.

[Levi Rizetnikof]

bauertin -- the rule of law ceases when the state that guarantees it is extinguished -- which is precisely what an enemy in a war is trying to do. Which is why the President is granted, by the Constitution, the power to protect the US government -- independently of what Congress may or may not allow him to do. In the conduct of war, the President is supreme. If you don't like the Constitution -- the law -- change it. Don't complain about this president -- like every other president before him -- using the powers he was granted by the Constitution.

[Johnny Clarke]

Hmm, alright Levi, point taken. How would you suggest we end "the war on terror" so that the president may return to a less...active role? Nuke the world?

[Phil]

Congress's attempt to limit the President's power to conduct war may, itself, not be "legal" -- that is "constitutional" -- in the first place.

Don't we have a branch of government dedicated to examining those sorts of questions? I'm pretty sure we do, but if we don't, maybe we should look into getting one. I'm definitely certain that the President does not have the Constitutionally-delegated power to decide which laws are constitutional and which are not.

[Phil]

Section 8. The Congress shall have power . . . to pay the debts and provide for the common defense and general welfare of the United States . . . To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations . . . To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water . . . To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years . . . To provide and maintain a navy . . . To make rules for the government and regulation of the land and naval forces

Read that last one really, really carefully, and you might learn something. So much for "Supreme President Bush can do whatever he wants." The word you're looking for is "king," and we don't have one of those.

[R C Dean]

The law is the legislature's will, not the executive's.

Not to be pedantic, but the law in this country is the legislature's will, plus the executive's will, because a bill has to both pass the legislature and be signed by the President to become law.

Additionally, whatever that lot agrees on is still not the law if it is not Constitutional. (This begs the question of whether something unconstitutional is nonetheless the law until a court says so.)

[joe]

The President can't even give a Brigadier General a second star without a vote in Congress, and you'd have us believe that he can conduct actions that violate both the black letter law of the Fourth Amendment and the statute that Congress passed, merely because he holds the title "Commander in Chief of the Armed Forces?"

[Phil]

This begs the question of whether something unconstitutional is nonetheless the law until a court says so

I asked Mr. McCain and Mr. Feingold and they seem to feel the answer is "yes."

[Levi Rizetnikof]

Yes, indeed, Phil, there is a branch of the government that concerns itself with "those sorts of questions" -- whether the exercise of Presidential power is legal -- it's known as the Judicial Branch. And the Judicial Branch has generally sided with the Executive against the Legislative on issues about the conduct of war. I, too, know how to copy and paste. This is from the DOJ answer to the current political attack on the NSA surveillance program of communications between AQ suspects outside the US with possible AQ suspects inside the US:

"Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1863) (stressing that if the Nation is invaded, "the President is not only authorized but bound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[T]he Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[T]he President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. 8 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.")."

About the specific "warrantless" surveillance program in question, the DOJ answered:

"This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[A]II the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority. . . ."). The Supreme Court has said that warrants are generally required in the context of purely domestic threats. hut it expressly distinguished,foreign threats. See United States v. United States District Court, 407 U.S. 297,308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring)."

And for my final cut-and-paste, here's the Congressional resolution which authorized the War on Islamic Fascism:

S.J.Res.23
One Hundred Seventh Congress of the United States of America

AT THE FIRST SESSION

Begun and held at the City of Washington on Wednesday, the third day of January, two thousand and one

Joint Resolution

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.

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

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

Phil, exactly what part of "all necessary and appropriate force" don't you understand?

I don't need you, Phil, to tell me to read anything "really, really" carefully." I think you need to think "really, really carefully" whether you would like to aid and abett the next terrorist attack on the United States by forwarding spurious arguments about Presidential power in order to damage this President for political purposes and restrict the use of legitimate techniques that might prevent that next attack.

[Phil]

Those are great answers from DoJ, Levi. Quick question: Which branch is DoJ part of, again?

I think you need to think "really, really carefully" whether you would like to aid and abett the next terrorist attack on the United States

Fuck you.

[ike]

While the conduct of a war is the President's Constitutional responsibility, the authority to declare war is Congress'. (See the quotation of Section 8, by "Phil" above.) Of course, I agree that it's been a long time since either the Presidents or the Congress-critters have paid any attention to most of the Constitution.

By the by, Phil, the phrase, "...to provide for the common defense..." is usually interpreted as giving Congress the power to appropriate money to pay for it, rather than the day-to-day conduct of "the common defense". And the second highlighted phrase, "...to make rules for the government...", refers to making rules for the government (i.e., rule over) and regulation of the armed forces; not to make rules for the government as the institution. The word, "government" here is used as a verb-form not the noun; "governing" is likely how we might express that idea today.

[Lowdog]

Levi - yup, you're a traitor and want to aid and abett the next terrorist attack on the US if you question the president's (ab)use of power.

[ike]

Rizetnikof: The "Prize Cases" are of limited applicability, inasmuch as their factual context included an identifiable aggressor - not present in the 9/11 attacks - and, furthermore, while it is certainly true that previous Presidents have explicitly violated the Constitution or purported to suspend various Constitutional provisions, nothing in the present so-called "War on Terrorism" reaches the imminent danger to the nation that the American Civil War did nor that World War Two did. There is no liklihood that terrorists are going to invade and conquer the U.S. If they had that ability, they wouldn't have to use terrorist tactics to make military strikes against targets in the U.S.

[Phil]

Uh, I'm aware of both of those things, ike -- I posted them to point out that, despite the President's role as CIC, the Congress maintains some rulemaking power over how the armed forces are to be run, thus putting the lie to the "Supreme Executive Power" crap being bandied about by the Bush-fellaters.

There is no clause in the Constitution which states, "During a war, Legislative and Judicial can sit in the back and have a warm cup of STFU until Executive says we're done."

[Kwix]

As for the NSA wiretap fiasco.
Amendments supercede the constitution. Even if one could take the NSA wiretaps to fall in line with the "provding for common defence" provision, the 4th amendment supercedes that authority when it comes to "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures ... no Warrants shall issue, but upon probable cause".

Period.

People outside of the US are open to tapping by the constitutional laws. Non-Citizens are open to wiretapping by constitutional law. Citizens are protected by the 4th amendment. If you can't get enough evidence to get a warrant, especially from FISA, then you have no need to be tapping. How freaking hard is this to understand???

[levi Rizetnikof]

Hey, Phil, good argument, convinced me, I'm ready for dhimmitude, let's surrender today!

Lowdog, your logic is overwhelming, you're right, I'm a traitor, Bush _is_ Hitler, Gore _is_ suddenly god, the President doesn't have the inherent authority to conduct military operations against declared enemies of the United States who have slaughtered thousands of American civilians, that power obviouqsly resides with Ted Kennedy, the New York Times, you, Phil, and Jennifer.

[FWIW]

A bunch of legal eagles (Tribe, Epstein, Dworkin, among others) have penned a letter to congress debunking the various justifications for this apparent "inconsistency".

[Phil]

****yawn****

Keep burning those strawmen. You know, when you can get the President's dick out of your mouth.

[levi Rizetnikof]

FISA was written in 1978, before the Internet or cellphones were ubiquitous. It is obsolete. Read Tensing in today's Journal (http://online.wsj.com/article/SB113763551855150439.html?mod=opinion&ojcontent=otep):

"The rules regulating the acquisition of foreign intelligence communications were drafted when the targets to be monitored had one telephone number per residence and all the phones were plugged into the wall. Critics like Al Gore and especially critics in Congress, rather than carp, should address the gaps created by a law that governs peacetime communications-monitoring but does not address computers, cell phones or fiber optics in the midst of war . . . "

"For example, al Qaeda agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

"Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?"

The NSA issue is political, not legal or constitutional. It is about damaging this President. It most certainly isn't about privacy. Individual Americans are surveilled daily by thousands of video cameras run by the government, without approval by FISA or any other court. Where's the outrage?

[SR]

"A bunch of legal eagles (Tribe, Epstein, Dworkin, among others) have penned a letter to congress debunking the various justifications for this apparent 'inconsistency'."

Did Epstein decide that since he's not getting the SCOTUS chair he's got nothing to lose at this point?

[Lowdog]

No Levi, I wasn't saying that you're a traitor, I was saying that anyone must be a traitor and be aiding and abetting a terrorist attack on the US if they dare to question the president.

I don't care if the president conducts "...military operations against declared enemies of the United States who have slaughtered thousands of American civilians...".

And I sure as hell don't trust Ted Kennedy or the NYT. Jennifer and Phil? They're alright, from what little I know of them. Can't say I always agree though.

But the spying shit wasn't a military operation against declared enemies of the US.

The NSA issue is political, not legal or constitutional. It is about damaging this President. It most certainly isn't about privacy. Individual Americans are surveilled daily by thousands of video cameras run by the government, without approval by FISA or any other court. Where's the outrage?

I'm outraged by that bullshit, too, lemme tell ya'. But of course, it's the same attitude that thinks it's a good idea to use cameras to nab speeders that thinks it's a good idea to spy on American citizens with no oversight.

[CTD]

Hey, _I'll_ say it! Levi is a traitor! He wants Constitutional law to be broken because he thinks spying on random people is the best way to find terrorists.

So sorry, Levi - this is the USA, not North Korea or East Germany (RIH).

[Levi Rizetnikof]

Actually, Lowdog, I'm a lot more outraged about the speeding cameras than about pattern matching surveillance of communications by the NSA, which can't be used in a criminal case, in any event.

Meanwhile, the NSA issue is still political. It is not about the establishment of a fascist America -- where's the draft, where's HUAC, where's the seizure of the steel mills, where's the summary execution of foreign combatants on US soil, where's the internment of a racial group, etc. etc.?

Hyperbolic criticism about this NSA program as though it was about the establishment of Fascist America will undermine the ability to criticize real intrusions on our freedoms that are likely to come.

[Kwix]

Levi,
That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?

This is a strawman. The NSA taps were on US Citizens. FISA allows the wiretap to continue for 72 hours BEFORE getting a warrant. If there is no probable cause in 72 hours, no harm, no foul. The request is never presented to FISA and the information is null.

Also, if you are asking me my opinion on this whole terrorism thing, it is all political any way.

Let's review, terrorists have killed approx. 5000 Americans in the last 10 years (Military action does not count). This includes 9/11, Khobar Towers, PanAm 103, and the Murrah Fed. Building.

Now, let's compare those numbers to various other forms of death.

Leading Causes of Accidental death per year in the United States.
Complications of Med/Surg Care 3,059
Exposure to Smoke, Fire, Flames 3,377
Drowning 3,842
Poisoning and Noxious Subst's 12,757
Falls 13,322
Motor Vehicle 43,354

I'd rather live free in a country where I have a 10 fold better chance of dying from drowning than I do from a terrorist attack VS. "knowing" that I am "safe" from a terroist attack but fear my government.

[Levi Rizetnikof]

Hey, I already admitted it, CTD, I don't need your confirmation, I am a traitor, I want to defend the United States using all Constitutional means, even if that means displeasing Henry Reid, Lawrence Tribe, and you. Now that we have that out of the way, tell me: who's going to save your sorry ass when all the traitors have been put away, Nancy Pelosi?

[joe]

dhimmi this, dhimmi that.

I can only count one person on this thread who has volunteered to live under an oppressive government, and to give away his rights.

Anyone know who I'm talking about?

[joe]

dhimmi this, dhimmi that.

I can only count one person on this thread who has volunteered to live under an oppressive government, and to give away his rights.

Anyone know who I'm talking about?

I gotta say, though, I love the setup of "the Justice Department" vs "politics." You know, because the department run by one of George Bush's Texas buddies, the one he promoted from being his own lawyer, couldn't possibly engage in politics.

[joe]

"who's going to save your sorry ass when all the traitors have been put away, Nancy Pelosi?"

Um, how about any one of the dozen Iraq War veterans running for Congress as Democrats?

[Levi Rizetnikof]

Kwix - you have no idea whether the "taps" were on a "US citizen". All you know is that the NSA has admitted surveiling communications between people in the US and outside the US.

What is it with this 72 hour fetish anyway? Did you ever hear of Internet time? 72 hours in Internet time is a geological era. Why should we want the NSA be bound by regulations that were created before the Internet was ubiquitous -- especially when those limits are themselves an estra-Constitional restriction of presidential power?

As to your specious arguments about accidental deaths in the US making a war against Islamic fascists unnecessary -- what about deliberate deaths, like murders? There were "only" 15K of them last year. Who needs a police force for such a piddling number -- less than the number of highway deaths?

With arguments like yours, it's no wonder Bush is still president.

[Levi Rizetnikof]

Joe - Iraqi War veterans? Illegal war. Civilian deaths. Sounds like we got some war criminals here. Should be arrested. Brought before the International Criminal Court, not elected to Congress. Next.

[Phil]

Wow, more strawmen, more arguments that the President alone -- or the DoJ, an executive branch agency -- gets to decide what is and isn't Constitutional . . . you're just kind of a dishonest jackass, aintcha?

[Levi Rizetnikof]

Phil - "dishonest jackass", that's me too, Phil. I'm just dazzled by your intelligence and debating style.

But as I remember it, I replied way back up this thread to your trick question about whether there was another branch of government that sort of oversaw stuff, and that it was, yes I remember, the Judicial Branch. Then I pointed out, actually I quoted a letter pointing out, all the Judicial support the President has for doing what he's doing. Case law, where the Court actually rules on these issues instead of just flames like a lot of participants in this thread.

But I see my error now, I should have just deferred to you, you are always right, only you are allowed to deploy sarcasm and exaggeration in the pursuit of your (always correct) argument.

[Kwix]

Levi,
Did you ever hear of Internet time? 72 hours in Internet time is a geological era.

Yes it is. Can you imagine the amount of "probable cause" evidence you could amass in 72 hours? All that evidence could then be presented to a FISA court to get a retroactive warrant. That is my point.
Are you saying that the 9/11 attacks were planned and executed in under 5 minutes? That there was no evidence that could have been presented to courts to procure warrants had the FBI not dropped the ball? Are you saying that the President and the NSA need the extra 30 minutes it would take to present evidence to a FISA judge to get a warrant? Could it just be possible that the NSA doesn't have enough evidence to get a warrant from the most pro-government secret court in America? It sure looks that way, doesn't it?

The CIA / FBI does not need a warrant to tap a non-citizen's phone. So, that having been said, why all the hubbub unless the taps actually were on US Citizens?

[CTD]

You really seem to have trouble reading the Constitution outside of select parts of Article II, Levi. Here's a helpful guide you might better understand: "The executive branch makes sure people follow the laws that the legislative branch makes."

[Levi Rizetnikof]

Kwix - complying with FISA is not about sending an email to the FISA court asking for a court order. It is about supplying three inches of documentation that takes days if not weeks to compile. If we are talking about hundreds of leads per incident -- like the email and cellphone address book on a captured computer -- then there could be hundreds of dossiers to open. Since the surveillance is about uncovering connections, not necessarily already demonstrated, this could be an insane waste of effort, not to mention time. Which is of the essence, since as soon as the knowledge that the computer was captured gets out, the connections it supplies could be severed.

And thanks. CTD, for the link to a children's view of the Constitution. That apparently summarizes yours and a lot of others' views on this thread. Thankfully, there are adults among us too who might take a more sophisticated and realistic view of what's going on.

[R C Dean]

The NSA taps were on US Citizens.

I have a question. Since all wiretapping is be definition a tap of a conversation between two people, what is supposed to happen when a known AQ operative places a phone call from overseas to a US citizen. How is a tap of that phone call not a tap of a US citizen? Are we not allowed to tap that call because a US citizen is on the line unless we have a warrant relating to that citizen?

Or are we allowed to tap any and all calls involving the AQ guy, even if the call is to a US citizen?

FISA allows the wiretap to continue for 72 hours BEFORE getting a warrant.

I have another question. What counts as a wiretap? What if the NSA is engaged in a true data mining operation, and has constructed and is maintaining a giant database of overseas phone calls. Have all of those calls been tapped as soon as they go in the database? Are they only considered to be tapped when they are pulled out of the database and reviewed by a person?

Is it even possible to engage in a non-pathetic sigint operation in the modern world without some kind of automated database? If so, isn't it impossible to run such a database if you have to get particularized warrants for every call in the database within 72 hours of its entry?

Just askin', is all.

[James Feldman]

Levi - If you are willing to engage seriously for a moment, here's the problem with your (and the Administration's supporters) viewpoint, in many people's eyes.

First, if the 72 hours provided by FISA is too long, or too short, or whatever the problem with it was, there was a very simple solution for the President. He could ask Congress to amend the law. Which is, in fact, what he did. And Congressional leaders told the administration that they would not be successful in having the law changed. And only after that does the argument emerge that the President already had the authority, and was only asking Congress to change the law for fun.

Which reminds me, that if we're going to blame all those chickenshit Congresscritters for not wanting to go along with what is such an obviously good and benign program, then instead of badmouthing Pelosi, the blame should fall squarely on DeLay, Frist, and the rest of the Republican congress. After all, they wouldn't have needed a single Democratic vote to alter FISA, would they?

Second, I just want to call bullshit on your claim that it is unimportant because these intercepts are inadmissable in court anyway. Well, that just fills all of us with happy thoughts, since it isn't like any American citizens have been held for years without trial, and that the Bush administration hasn't argued that it has the right to hold American citizens without trial. Which doesn't cover the fact that there is a long history of case law that shows that government surveillance which is intentionally inadmissable is illegal in its own right.

[Phil]

Levi doesn't want to engage with anyone honestly. He just wants to make a bunch of shit about dhimmitude and Nancy Pelosi and god knows whatever the fuck else, pretend that people posting here are saying it, and then argue against it. It beats having to be honest, I guess, but it's going to win him a bad reputation very quickly.

[Levi Rizetnikof]

Hey, Phil, I'm just quaking that i'm going to get a bad rep around here if I continue to challenge your pat answers about Bush's criminality and how we should trust Al Gore to tell us the truth about government power.

Feldman, the government surveils the baggage of every single person moving into or out of the US. How is looking at email from AQ terror suspects outside the US communicating with possible AQ terror suspects in the US any worse. It's not. It's just politics.

Which is one reason Bush didn't want to get Congress involved. Broadcasting US surveillance intentions to the targets doesn't seem to make a lot of sense. Especially when Congressional approval of an already established Presidential power was unnecessary in the first instance.

And Bush didn't come to that conclusion after he decided that trying to amend FISA wasn't worth it. Bill Clinton's Deputy Attorney General Jamie Gorelick (yes, _that_ Jamie Gorelick) made precisely that point when she testified before the Senate Intelligence Committee that "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes, and that the President may, as has been done, delegate this authority to the Attorney General."

"It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

And finally, treating captured combatants differently than criminals is not new to this president. Indeed, summarily executing them is not new. Roosevelt did it in WWII (http://www.law.uchicago.edu/tribunals/lt_111901-2.html).

[Lowdog]

2 things:

1) Gorelick is talking about foreign intelligence, not domestic.

2) Just because something is "not new" doesn't make it legal, moral, just, right, etc, etc, etc.

[James Feldman]

First of all, Levi, although thanks for actually answering substantively, you're cherry picking your facts there. No one has a problem with the US government looking at email sent by al-Qaeda suspects outside of the United States; that is precisely the purpose of the NSA. There is, however, a legal standard that has been well-established regarding the burden of proof required to read the e-mail of an American citizen, or a foreign national who is a legal resident of the United States. That legal standard, you might remember, was developed during the Cold War, when the enemy was international communism. I have yet to hear any person make the case that the threat posed by terrorists is greater than the threat posed by the Soviet Union.

Second, you are incorrect. President Bush did want to get Congress involved, which we know because AG Gonzales said that he went to Congress on the President's behalf to request that the FISA law be changed, and that he was told it was unlikely to be successful if the attempt was made.

Jamie Gorelick is correct, but what Gorelick defends and what you are defending are different issues. Warrantless intercepts for foreign intelligence purposes are legal; what occurs within the United States are not, which is why the FBI has been tasked with domestic counterintelligence work and not the NSA or the CIA. And if the final point Gorelick makes is true, then once again I ask why the Republican Congress was not asked to revise the executive's power in these circumstances? If the law is the problem, or an undue burden, there is an easy remedy, but to say that the law doesn't matter because it doesn't achieve the right goals is like my saying that I don't have to drive the speed limit if I'm running late to something important.

Your last point bores the crap out of me. Yes, other Presidents in the past also wielded executive power excessively. And then laws like FISA were passed to ensure that future Presidents could not do as their predecessors. Is your next argument that unlimited detentions of American citizens at Gitmo is legal because of the precedent of Japanese internment?

[Levi Rizetnikof]

Lowdog - what am I missing here? Gorelick is talking about "foreign intelligence" and we're talking about -- AQ agents abroad talking to possible AQ agents in the US. Smells like "foreign intelligence" to me. And Gorelick was testifying in 1994 about the warrantless search of a US citizen in the US.

I bring this up precisely because the practice is not new, is, in fact, pretty settled, unless you want to make political trouble for the current President, which is exactly what's going on. If nobody was talking impeachment of Clinton in 1994 for this offense, what's different in 2006? Oh, yes, the President is a Republican.

[James Feldman]

Levi: I wasn't living in the United States in 1994, so I can't speak from the experience, but I imagine that you are talking to the people who absolutely would have talked about impeaching President Clinton for such activities.

[CTD]

Thankfully, there are adults among us too who might take a more sophisticated and realistic view of what's going on.

There are, Levi, you're just not listening too 'em! Look, you're bringing up Clinton, as if any libertarian was a fan of him. Talk about punching at ghosts!

[Phil]

Hey, Phil, I'm just quaking that i'm going to get a bad rep around here if I continue to challenge your pat answers about Bush's criminality and how we should trust Al Gore to tell us the truth about government power.

Please quote where I said either of those things -- either that Bush is a criminal, or that we should trust Al Gore to blah, blah, blah. Exact quotes, with timestamps -- no paraphrasing. Put up or shut up. Come on, smart guy, show me you can argue honestly.

[Levi Rizetnikof]

James, I doubt whether the people I'm arguing with _would_ have wanted to impeach Clinton in 1994 for this or any reason. Indeed, I'm pretty sure they wouldn't have. If for no other reason that people didn't talk casually about impeachment then.

And CTD, I'm not punching at Clinton "shosts". I'm just pointing out that Bush, like Clinton, like every single president before him, claimed inherent presidential powers to conduct war and foreign intelligence. Nothing new here. Which is why this is only about politics.

[Ned]

"Bush, like Clinton, like every single president before him, claimed inherent presidential powers to conduct war and foreign intelligence. Nothing new here. Which is why this is only about politics."

And libertarianesque folks have criticized Bush, and Clinton, and every single president before him for claiming too much power. Which is why you're completely wrong to assume it must be about politics.

[Levi Rizetnikof]

Phil, let me get this straight, you're not arguing that the current war in Iraq is illegal and that Bush is violating the law with his NSA intercepts? Or that you disagree with Al Gore's latest speech?

[Ned]

Jesus, you're really claiming "we should trust Al Gore to tell us the truth about government power" is equivalent to "agree[ing] with Al Gore's latest speech"? You really have no intention of being remotely fair-minded, do you?

[CTD]

I think the Levi is dry at this point.

[Levi Rizetnikof]

Ned, if this NSA kerfuffle isn't politics, why is it even being discussed here at all? Because it pales into insignifcance compared to the Echelon program run under Clinton. Why isn't this discussion about Echelon? Or about the drug laws? There are no discussions going on at Reason right this minute about the drug laws, but there are a hell of a lot more Americans having their natural rights being violated by the drug laws than this NSA bullshit. A hell of a lot more, and a hell of a lot worse. Why isn't there a single discussion here about that? I'll tell you, because the Democratic Media party in America wants to bring down this president, for whatever reason, and is willing to fabricate whatever controversy that can forward that agenda. And that to me is politics. And by extension, should not be discussed as if The Future. Of. The. Republic. is at stake.

As to Al Gore, I'm not sure I see the distinction between distrusting Al Gore in general and distrusting his speechifying at this moment about this issue. The man lacks credibility, period.

Not dealing with that reality strikes me as "dishonest."

[Ana Gram]

Hey, "Levi Rizetnikof" is an anagram of "Evil Frozen Tiki."

And surely, Levi, you're not suggesting that just because something unconstitutional was done in the past means that it's okay to do it now.

[Rick H.]

Aaargh. The Reason servers' snark-filter/post-multiplier/molasses churn is running again.

[Apostate Jew]

"He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient ...

"... he shall take Care that the Laws be faithfully executed ..."

I read the above somewhere but I don't recall a phrase that might have gone something like this ...

Article II.

Section 5.

In times of unusual or changed circumstances that endanger the Republic, the President may at his own discretion determine what is Legal and what Illegal and may take any action the should seem Right and Proper to him. No Citizen shall criticize him for this, neither shall any Court find against him, the Constitution and Laws of the United States notwithstanding.

Section 6.

Any action taken by any President is by definition legal and shall be so for all future Presidents in perpetuity, the Constitution and Laws of the United States notwithstanding.

[Rick H.]

Levi, I mainly just lurk around here, so feel free to make up imaginary shit about my positions if it helps your argument.

[Another anonymous coward]

I'm with Levi. Throw all the nattering nabobs in the hoosegow because they're objectively pro-Osama. The president's only trying to protect us from evil masterminds like the shoe bomber, Padilla and Cat Stevens.

Naah, not really. I'm not scared by people who live in caves and mud brick hovels and talk like they're in Victorian adventure novels.

Levi, try to keep a stiffer upper lip. They had one spectacular success and not much else.

[Ned]

"Why isn't this discussion about Echelon? Or about the drug laws? There are no discussions going on at Reason right this minute about the drug laws..."

Are you fucking kidding me? Why are we talking about current events instead of something that happened last decade? And you have got to be the first person in the history of H&R to complain about _not enough_ posts about the drug war. Stick around for a week and you'll see no shortage of threads related to the drug war, and plenty of criticism of the drug war on other unrelated threads (such as the top thread right now).

"I'm not sure I see the distinction between distrusting Al Gore in general and distrusting his speechifying at this moment about this issue."

You've conveniently flipped your original statements from trust/agree to distrust/distrust. It should go without saying for anyone who's trying to be remotely fair that agreeing with points made by someone in a single speech is not equivalent to a blanket trust that person will tell the truth about government power. Man, talk about lack of credibility.

[Levi Rizetnikof]

Ned - my point is that in ranking government threats to our freedom, the NSA program is many orders of magnitude less damaging than the ongoing war on some drugs -- so why is it getting so much attention now? And I haven't noticed that the drug war is not a "current event." On the contrary, it's a very current event to about a million Americans imprisoned because of it. And the answer I come to is that it's being discussed now because it's politically convenient to the opposition Democrats. That's not good enough for me.

I have a blanket distrust of politicians, especially politicians trying to convince me that their opponents are constitutional reprobates, especially politicians who are like Ahab on some pathological mission to kill off some demon in their past. I don't agree with Gore's points, in this speech or virtually any other he has made. I'm deeply suspicious of his motives, as well as people who ordinarily wouldn't touch him with a ten foot pole starting to say he's making sense.

Another anonymous coward - now did I say anything about "nattering nabobs"? Or that anyone should be thrown in the "hoosegow"? And I'm glad you think that those "people who live in caves and mud brick hovels" aren't dangerous. Try telling it to the innocents who died in Madrid, or London, or Morocco, or Bali, or Istanbul, or Amman, or, hey about the people dying daily in Afghanistan or Iraq, killed by AQ nutters just like those other AQ nutters in the caves and hovels. No, we shouldn't worry about them.

And Apostate jew - just what are you trying to prove? I haven't rewritten the Constitution, I just read it, and read the Supreme decisions supporting Bush's interpretation of it, and the history of previous presidents who interpreted the Constitution just like Bush. If you don't like the Constitution, go and amend it. If you don't like the way the Court has interpreted it, go and elect your own president and Congress and change it. Don't go trying to make believe it's something that it's not, or that this NSA brouhaha isn't anything but another partisan attempt to beat up on Bush.

[James Feldman]

If you'll look through Reason's archives, you'll see that they did make a big deal about Echelon. And that we all make a big deal about the drug laws, and the idiocy of the drug war. And if you don't think we are having discussions about the drug laws in this country, it is only because you just got here, and have never seen anything else posted before today. I highly recommend that you read some of Jacob Sullum, one of Reason's editors, works on the subject.

I do believe that the future of the Republic is at stake, but not from al-Qaeda, and many people here agree with that. That is not to say that I am dismissive of the threat terrorism poses; I lived in Israel for some time, as well as being a New Yorker and a native of Washington D.C. who lived through the attacks on 9/11.

Levi, if you want to argue with people at the Daily Kos, you're in the wrong place. I despise the tyranny of both the American right and left, and just because Al Gore finally said something that I agree with doesn't mean that I'd bother to walk to my polling place to help him promote censorship and inane economic policies. But even a busted clock can sometimes smack you in the head.

But don't fool yourself - it isn't just the Democrats who have had enough of this President, and his "Trust me, its for your own good" bullshit.

[Ned]

"And I haven't noticed that the drug war is not a "current event.""

No shit the drug war is a current event. I was referring to your goofy comparison to Echelon. And like I said, the drug war gets plenty of press here. Maybe you haven't been paying attention long enough to see it, but it's true. Go to the last full entry in the archives, 1/8-1/14, and you'll find five threads directly about some aspect of the drug war, and many others where it comes up. Is five+ times a week enough for you?

[James Feldman]

I don't think, by the by, that Grover Norquist, Bob Barr, or Christopher Hitchens, all of whom have weighed in as being deeply concerned and appalled by the NSA intercept program, qualify either as partisans or Democrat sympathizers. But I know that's just the fine print to some folk, Levi.

[Levi Rizetnikof]

Feldman -- Norquist, Barr, Hitchens are just useful idiots with their own axes to grind, they are not the prime movers of this travesty. The NSA issue was surfaced by the NYT and pounced on by the Democrats (but I'm just repeating myself). If the NYT had discovered the problem during a Gore administration do you think it would have splashed it across the front page and the ACLU started a lawsuit? We can find the answer in the fact that it didn't make a peep about the much more egregious Echelon program which began under Gore's watch in the Clinton administration.

As to Echelon -- is that not "current", because I didn't hear it was stopped. Would you like to point me to the reference. Because right after the NSA story broke, the MoveOn equivalent in New Zealand piped up that the NZ operation should be closed down since it was clearly being abused by Bush.

So, the quesion remains, why isn't this thread about Echelon, which is an even larger violation of the rights of US citizens, hoovering up literally all electronic communications not just between US residents and the outside world, but among US residents in America?

Because. This. NSA. Bullshit. Is. About. Politics.

[James Feldman]

Levi, if it is all about politics, then why are you being forced to argue that with a bunch of libertarians who have only the slightest smidge of affection for the Democratic party?

[Levi Rizetnikof]

James, I am trying to challenge libertarians, get them to realize they are choosing to ignore the real threats to free minds and free markets in the 21st century while continuing their masturbatory chanting about the evils of state power. The state may be evil, but the bigger evil stalking the world is a very bad set of ideas being wielded by a bunch of psycopathic fanatics who want to enslave the world and kill everyone who they don't like and/or who stands in their way, especially us.

Right now, they don't look like Nazi Germany or Soviet Russia -- yet -- and not for lack of trying. Where they have held or still hold sway, they have been abominations. Their followers are spread around the world, and they are active.

This is not an industrial war, it is the first war of the Internet Era. To win this war, they do not have to take and hold ground, all they have to do is claim a large enough piece of our attention and undermine our will. They have not accomplished their aim yet, and I would like to make sure that they never do.

If we could have stopped Hitler and Stalin before they achieved power, we should have. We have that opportunity now. We should take advantage of it, instead of succumbing to the power politics of a US political party that is throwing a fit because it has lost the favor of the electorate, not unlike the Republicans after the ascendancy of Roosevelt when they descended into thrashing, mean-spirited impotence. Let them have their fit, and let us recognize it for what it is, and continue to focus on the larger threat, and how to meet it.

This kind of discussion makes me sick. It's a waste of time, because nothing discussed here is going to change the fact that the Supreme Court is going to throw out the ACLU challenge, and Bush will continue to do what he has to do, because that's what the Supreme Court has held about the power of war presidents since the beginning of the Republic. This kind of discussion is a lot of negative emotion accomplishing nothing.

Instead, we should be investing our imaginations and enegies into analyzing the very real threats facing us from Islamic fascism, and struggle to invent strategy and tactics to defeat those threats and enlarge the space for free minds and free markets throughout the planet.

[thoreau]

There's no point arguing with Levi Rizetnikof. Given some of his tactics, I'm starting to wonder if he's astroturf.

On second thought, real astroturf wouldn't piss off so many people. That would run counter to the objectives of astroturf.

Nope, just a run of the mill conservatarian who will never, ever, ever admit that the government might, just might, have gone too far and broken the law. He'll continue to insist that this is ridiculous, and that anybody who has any concerns about what's going on must be motivated by Democratic sympathies.

Levi, what you need is more oxygen to the brain. To steal a phrase from Phil, take the President's cock out of your mouth. You'll find that breathing is much easier that way.

[Levi Rizetnikof]

Hey, thoreau, that's what I like about you, always able to lower the discussion to your level by the well-turned phrase. You and Phil. Quite the pair. Is everyone who disagrees with you "astroturf"? Or giving blowjobs to people you hate? When you run out of arguments is all that's left schoolyard taunts? What next, excommunication? shunning? being branded an enemy of the people? Is that part of the new libertarianism too? Is that how you keep the level of discussion so high around here?

Meanwhile, you guys are still wagging about a constitutional exercise of presidential power during wartime. Keep wagging, guess it makes you feel good, but I always felt that libertarianism was more than being a tool of Democrats, or masturbating to rhetoric, now dead, from when libertarianism actually meant something.

[Instigator]

Did I miss the declaration of war?

There's something in the Geneva Conventions about that ...

Oh, and for those of you who prefer invective, I prefer "running dog" to "tool".

And in anticipation complete the following analogy.

AUMF : Declaration of War
Violation of FISA :

a) crime
b) OK because the guy I like did it
c) OK because the guys I hate hate my guy who did it
d) irrelevant, don't you know we're at war!
e) b, d, and e

Anyone answering a must immediately either join "Democrats for Osama" or proceed to the nearest mosque for conversion.

You're either with us or against us!

Yeah, and my analogy skills suck.

[CTD]

If we could have stopped Hitler and Stalin before they achieved power, we should have. We have that opportunity now.

Finally, Levi puts in a good word for impeachment!

[Phil]

Phil, let me get this straight, you're not arguing that the current war in Iraq is illegal and that Bush is violating the law with his NSA intercepts? Or that you disagree with Al Gore's latest speech?

I'll take that as a tacit admission that you cannot, in fact, quote me saying the things you had just accused me of saying, which is an admission that you simply made them up and attempted to attribute them to me. In most circles, we refer to that as "lying." If you'd like to actually know what I think, you could ask me, but that seems to be beyond you, a task too easily ignored in favor of strawmen, deck-stacking, loaded rhetoric, and bullshit.

There are no discussions going on at Reason right this minute about the drug laws

OMFG. You're kidding, right?

[jeff tomerson]

Levi is a paid troll.
Don't bother arguing with him, he gets paid by the word.
Nice posts, Phil.

[quasibill]

Yet more proof that no document will ever restrain government.

The president's title as commander in chief was NEVER intended to be a grant of power outside the constraints of teh Constitution. Rather, the purpose was merely to install a member of the civilian government at the head of the military - to control IT and keep it from threatening the Constitution. Creating an exception to the Constitution would have been extremely easy for the drafters to accomplish - Article 2, section x: In times of war, the president becomes a monarch, able to wield unlimited power to pursue victory. Since that section doesn't appear in my Constitution, it's pretty clear that in reality ( I know, Straussians deal in their own reality, and disdain the "reality-based" world) such an exception does not exist.

So, as usual, those in the position to most benefit from a backward-ass, overly lawyered reading of the Constitution are the ones that put it forward. Just like those who say the Commerce Clause allows Congress to regulate home-grown pot, and that the welfare clause is a grant of power to Congress.

Those in government will always find a morally challenged lawyer to provide an opinion to support the proposition that some obscure section of the document supports a result completely at odds with a plain reading of the whole.

SS, DD.

[thoreau]

Hey, thoreau, that's what I like about you, always able to lower the discussion to your level by the well-turned phrase.

Actually, I rarely snap like that. But I can only put up with so much bullshit. Most of our pro-war, pro-administration hawks at least admit that they aren't fans of everything going on, but we should put things in perspective. You, you're just a cheerleader.

Sadly, I don't even think you're a paid cheerleader. Which makes it all the more pathetic.

[thoreau]

quasibill-

I agree. I remember how conservatives used to be so upset when a couple of phrases like "interstate commerce" or "general welfare" were used as cudgels to render most of the document meaningless. They swore that they would never do anything like that.

Now it turns out that the phrase "commander in chief" renders the Bill of Rights meaningless.

Hey, I've got a great idea: Maybe the phrase "Congress shall make no law" can be construed to mean that the Constitution endorses anarchy!

[Ned]

To be fair, Levi did give some good advice at 11:58 PM. We should let him have his fit, and let us recognize it for what it is, and continue to focus on the larger threat, and how to meet it. Are you done with your fit, Levi, or is there more?

[Tom]

I suppose its just a coincidence that the author of the nonpartisan CRS analysis donated $1250 to the Kerry campaign in 2004.

[James Feldman]

Good point Tom. Because no one in America who voted for Kerry has even the slightest hint of integrity, right?

[joe]

Meanwhile, Tom, the Attorney General, President, White House Spokesman, Vice President, and every single one of the Congresscritters who have defended Bush's Big Brother tricks supported Bush in the last election.

I still haven't seen a substantive, evidenced refutation of anything Al Gore had to say. Just personal attacks from the Bushies. Backs against the wall, fellas?

[Kwix]

I know this is really, really late, and I am pretty sure Levi is long gone from this thread but what in my previous post (January 19 3:05PM) was hard to understand. The 4th amendment trumps Article II when it comes to the protection of US Citizens. That's what Amendments do. Regardless of what Article II says the President may do in a time of War (which by the way must be declared by Congress) any Amendments to the Constitution trump it.