Today a federal judge has ruled that the NSA wiretaps are unconstitutional, and the write-up on the decision is highly interesting as it covers a lot of the ground we've discussed often here such as the power of the executive.

You can find the PDF of the decision here. It is fairly lengthy but worth a read.

Check this part out (p 31):


There's a lot more there.

Questions for debate:
1. Do you agree or disagree with the legal aspects of the ruling? Why?

2. This will inevitably go to the Supreme Court, how do you think they will rule?

1. Do you agree or disagree with the legal aspects of the ruling? Why?

I am currently going through the opinion and it appears to me that the legal reasoning is sound. Particularly that the program cannot be protected under the state secrets privilege since the government has already made a number of concessions about the program which are suspect. The judge appeared reasonable in the decision balancing the need for national security concerns and constitutional concerns.

By far the most interesting was when the discussion focused on if the plaintiffs were actually "injured" by the program or whether it was hypothetical. The ruling on that issue will probably set an important precedent. I was always in favor of delayed-notice of a search warrant or tapping believing that there was some reason in that contention whether it be the destruction of evidence or the fleeing of the suspect. But to forgo notification altogether and happen to forget asking a judge? Not in my country.

2. This will inevitably go to the Supreme Court, how do you think they will rule?

I think the court will uphold the ruling of the federal court. I would be incredibly surprised of the strict constructionists on the court would find to expand executive power.

I wouldn't be surprised. Didn't Roberts support such a program? This Supreme Court is unpredictable, IMHO. Nothing would surprise me.

First, I'd like to say, wow! Very nice.

Do you agree or disagree with the legal aspects of the ruling? Why?
Yes. A very well written decision.

This will inevitably go to the Supreme Court, how do you think they will rule?

I think this will stand up. I don't think it will be reversed.

The fortunate thing is that the TSP will stop (hopefully). The unfortunate thing is that the President will not be reprimanded for the clear violation of his oath of office and failure to adhere to his constitutional responsibilities.

2. This will inevitably go to the Supreme Court, how do you think they will rule?

I'm guessing they'll probably throw the case out for lack of standing. They threw out a similar challenge against FISA itself on similar grounds - namely, because it was a secret program, the plaintiffs could not prove they were being injured by it.



But is there anything in the 4th Amendment that requires notification of the suspect? As desirable as that might be, it doesn't seem to be in there.

Lets look at the 4th Amendment shall we?



So according to your interpretation of the 4th Amendment, the government can go into your home without your knowledge and never tell you that they committed the search? Seems like a substantial increase in power to me and disregards hundreds of years of common law history.

Katz v United States


The entire purpose of the 4th Amendment was to protect the individual against government intrusion and unlawful seizure. That means that they must announce that they have a warrant when they commit the search or else the evidence obtained will not be admissable. Katz allowed for there to be reasonable exceptions in extreme circumstances.

I think there is lawful interception of telecommunications in the interest of security, without informing the suspect. Otherwise they wouldn't obtain any information at all and the interception would be pointless. I think that's what Blackstone was referring to here, though I might be mistaken. Isn't the issue warrantless interception of communications?

To answer the question for debate, yes I agree with this ruling. I think that warrants are a crucial part of the system of checks and balances on the executive. The fourth amendment was written before there was any organized police department. It wasn't written solely for times of peace, as the nation had just fought a war in which US territory was a battlefield. It wasn't written to control law enforcement authorities, as law enforcement at that time fell under the authority of the states. It was written to control the executive.

1. Do you agree or disagree with the legal aspects of the ruling? Why?

I think this ruling ignores precedent, even as it cites it. There are cases very, very similar to this one involving warrantless domestic surveillance, which the Courts have ruled are within the Executive's national security burden.

First off, there is the matter of standing. Have the plaintiffs demonstrated that they have personally been harmed by this program? I don't think they have. Sure, they assert that they have been harmed: shady overseas contacts (sorry, "individuals who have alleged connections with terrorist organizations") won't communicate with them over the phone or internet. But, they do not know if they have been the subject of a warrantless wiretap. It is not sufficient to assert potential harm or future harm--the party must be harmed and harmed specifically by the government action in question. I don't think the plaintiffs have met that burden. In fact, under the state secrets doctrine, the government is not forced to admit (or deny) that the plaintiffs have been, are, or will be monitored.

The judge here does some real legal gymnastics:


Huh? Where have the plaintiffs proven that they are subjects of the TSP? Has that been proven, or merely alleged?

The judge continues:


Can this judge read her own writing? The judge admits that it is an "alleged effect" i.e. not proven. And she claims that it is not the program's "mere existence" but is "more". What "more"? Where's the "more" if the plaintiffs have not demonstrated that they have actually been surveiled?

Second, there is the separation of powers reasoning that I have gone over before. The Constitution gives national security responsibility to the President and not to Congress or the Courts. The other branches cannot interfere with this authority. Fleming v. Page (1850): [the President may] "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy." There has been a de facto declaration of war against terrorists (the AUMF), making terrorist an "enemy" of the United States. The Courts (except maybe this one) have been very reluctant to impede this fundamental duty of the President.

Next: warrantless searches are used all the time by the government. As in: every single day. Warrantless Searches of Americans? That’s Shocking!

In Katz v. United States (1967) the Supreme Court ruled that warrants were needed for criminal prosecutions, but were not needed in national security situations:


In United States v. Truong (1980):


Even lawyers who disagree with the NSA program think that this ruling is "not just ill-reasoned, but rhetorically ill-conceived."

Even the Washington Post has blasted the legal reasoning here: A Judicial Misfire: The first federal court opinion on warrantless NSA surveillance is full of sound and fury.



Didn't think I'd ever agree with the Post's editorial board.

2. This will inevitably go to the Supreme Court, how do you think they will rule?

I believe this will be overturned at the Appellate level, making a Supreme Court decision unlikely. If the Supreme Court does take it, they will affirm the reversal.

But Amlord, do you not see the essential paradox? If the information of who is under surveillance is forever under the national security privilege and no judge is necessary to sign off on the warrant...then what is to stop the government from conducting limitless warrantless searches? The warrant is supposed to be the check. Upon further reading of the opinion (i tried to skip the rhetoric and go straight to former cases cited), I can see where many would object to the argumentation that was used and some of the rhetorical comments made. But the issue remains about warrantless surveillance. Katz v. United States did not say that warrants were not needed in national security situations but that that question was beyond the scope of the trial they were making a ruling on. Furthermore, United States v. Troung doesn't appear to have to do with warrants for domestic surveillance but for foreign intelligence. To me this means that we shouldn't have warrants if a CIA Agent in Afghanistan is tapping the phone of a suspected terrorist. It in no way mentions that domestic surveillance does not need warrants especially when dealing with Americans.

I think the key word is 'unreasonable' here. If I wish to board an aircraft, I am offering my consent that my bags and perhaps my person will be searched. This is not an unreasonable expectation. Those examples were all similar in that regard (I would also argue against the drug testing in public schools issue on Constitutional grounds but that isn't the topic). The examples included public areas, businesses, ect...or the search of persons who were detained while breaking the law. The only exception was exigent circumstances which sort of speaks for itself. I am not convinced that these wire taps are so very time critical that a warrant cannot possibly be obtained quickly enough on grounds of probable cause. That is what it would take, IMO, to pass the Constitutional test.

Amlord, do you even remotely consider the consequences of this line of reasoning? According to you:

9/11 + the resulting AUMF = Unlimited, unchecked executive power to monitor every facet of communication in this country & abroad. If this is not the case, please explain to me how or why your Katz extension would not be interpreted that way.

Does FISA matter at all? According to your reasoning, FISA was an unreasonable exercise of Congressional authority, since all surveillance could be lumped into the state secrets category. Man, why didn't Nixon think of that? FISA represents an agreement between the two branches of government as to what constitutes due process when it comes to acquiring foreign intelligence involving US citizens. If it needs revision due to 9/11, so be it. But according to your line of reasoning, the President is ok in his own personal act of civil disobedience until the law is changed (read: until Specter capitulates) to suit his wishes. I read it the other way. The government is conducting a coordinated criminal act, approved by the President. If Gore had been doing this since 2001, the GOP would be conducting their own Watergate investigation.

Has National Security become the "get out of accountability" card for the remainder of our lifetimes? I really wish SCOTUS would take up the issue of the AUMF and whether it constitutes a declaration of war. In my opinion it doesn't even come close.

We are getting dangerously close to a constitutional crisis over this. Even if your line of reasoning is legally accurate (I'm not saying it is), how do we reconcile this apparent unlimited executive authority? Are leaks to the NY Times the only way we can hold the executive branch accountable these days?

I have no issue with the need for our intelligence agencies to have some slack in their relative leashes as they try and keep further attacks against Americans from occurring. But FISA provided sufficient slack in 1972. If that leash needs modifying, so be it. But as of right now, Judge Taylor has put this program where it needs to be: on hold until they can get it constitutional.

Let's take a step away from the current situation and look at it from a distance. That is the only way to come to a reasonable conclusion.

Let's say that war breaks out between the United States and Sweden. As the war progresses, what would be your stance on calls from Sweden into the United States? What if the calls were coming from known Swedish officials (army officers, politicians, or other government officials)? Would you think it would be appropriate that a warrant be required to gather intelligence on who these Swedes are calling in the US?

That is what we have here. The Congress has authorized military force to be used against Al Qaida and anyone who supports them--the AUMF. It is a war. Like it or not, agree with the strategy or not we are at war with Al Qaida. This TSP specifically targets operatives of our enemies. It listens in on their conversations, but only if we know that at least one participant is an operative of the enemy. If those conversations extend to the US, do you think it is more important or less important that we know who they are talking with and what they might be saying?




Next time she should try some judicial temperament. By the way, the program is not on hold. The judge's order overturning it has been stayed pending appeal. (An aside: FISA was passed in 1978).

Read the decision again. Parts of this decision read like a blog entry: "this President" "There are no hereditary Kings in America and no powers not created by the Constitution."



I don't create the law, I didn't make the precedent rulings. That is indeed a paradox, but it is also the principle that the Courts have used in regards to state secrets.

But let's not assign over-expansive scope to this. The TSP is not used against anyone and everyone. It is used to surveil people who are talking to known agents of Al Qaida. That is where "reasonableness" comes into play. It is eminently reasonable to spy on agents of a foreign power when you are at war with that power. The AUMF essentially declared war on Al Qaida and this is intelligence gathering in a war. It does not apply to wholly domestic communications. It is used when at least one party of overseas and an agent of Al Qaida.

To see how vacuous this decision is, let's look at its reasoning regarding the First Amendment violation:



Where is the analysis? Where is the examination of the compelling state interest (if any) that the government asserts is in play here? There is no analysis. The judge simply rules: this is a violation of the First Amendment. End of story. Have a nice day.

How about some analysis Madame Judge?

What about her Fourth Amendment analysis?


Again, can we have some analysis? Some case law at least? She never references cases where warrantless wiretaps have been found Constitutional. She never examines precedents involved and how this case violates them (or if it does). She simply concludes: "it has undisputedly been implemented
without regard to FISA and of course the more stringent standards of Title III, and obviously in
violation of the Fourth Amendment."

I guess it is so obvious that she can't be bothered to explain it. Then she throws in a jab at the President which seems out of context (that same Constitution? She hadn't reference the Constitution in the preceding several pages. She did reference the Fourth Amendment, but the Fourth Amendment did not create the President.)

This ruling is simply devoid of analysis. It spends more time on the importance of the principles involved than it does on analyzing the facts of the case.

I'm going to start with this because it is completely false. There has been no declaration of war by Congress and therefore the executive does not gain additional powers as a result. The AUMF is not a declaration of war and I'm not even sure it is possible for it to be because you can't declare war on a group of people or an idea - you must declare war on a state because you have to be able to end that war with some kind of ceasefire or peace treaty.

If this is your core assumption (which it seems to be) nothing else you argue is going to even remotely make sense.


If you mean war as in war is declared by congress then the government probably wouldn't need warrants. But if you are trying to draw an analogy to Al Qaeda it doesn't fit for a lot of reasons and warrants should be obtained - the barrier for obtaining those warrants would probably just be fairly low. And as FISA currently stands it is fairly low.

I think the problem here Amlord is that you think the burden of proof is on the people to prove harm was done, while I feel that the burden of proof is on the government to prove that the program IS constitutional. I think that reasonableness goes out the window when no warrants are obtained for domestic surveillance. Reason applies to delayed notice of the warrant...not to forgoing it altogether. Trust me Amlord when I say that I want to stop Al Qaeda as much as anyone. But if you give government the power to do good, your give it the power to do evil.

I guess you should tell Congress that.

They are the ones that specifically gave the President powers under the War Powers Act to use military force. The The War Powers Act specifically references the Congress's Constitutional power to declare war. In other words, Congress declared war on the perpetrators of the 9/11 attacks and anyone who supports them. In other words, they declared war on the very people that the TSP monitors.

My analogy is perfectly valid and you've just agreed that this should be legal.






The first burden of the plaintiff is to prove that they have legal standing. To do this, they must have been personally harmed by the action in question. That is the first rule in winning a case.

Not whenever they feel like. It appears that they'd need to have probable cause, and (at least when circumstances allow) get a warrant within the rules provided. Notification doesn't appear to be mentioned as a requirement.

However tempting it may be, I don't want judges inserting provisions, even good provisions, into the Constitution that aren't there. Once you give them that power, you'll regret it.

That is not the same thing as a delcaration of war Amlord, it is a different animal entirely and what is really required is for the Supreme Court to once and for all rule on it.

Well, we can stop referring to Korea, Vietnam, the Gulf War and the current Iraq war as "Wars" then. They are simply Congressionally Authorized Military Actions.

The Constitution lays the power to initiate conflict with the Congress. Whether you call it a "War" or a "Authorization for the Use of Military Force" in the end they are equivalent.

We were attacked on 9/11. Technically, the President was authorized at that moment to retaliate. We did not initiate the conflict, they did. It is his primary Constitutional role to protect this nation, to anticipate and react to attacks. He cannot initiate conflict (beyond 90 days), however, without Congress's approval.

Wars, Declared and Undeclared

Also, Doe v. Bush

Actually Amlord that is correct pick up any history book and you'll see that we haven't been at war since WWII since that is the last time it was officially declared. These other actions have really skirted the Constitution.

And I think you'll find that people who really value the Constitution (e.g. Mike, Leder, CP, etc) would probably agree with me.

And the United States Judiciary Branch disagrees. The First Circuit has ruled that



There are no "magic words" required to declare war.

That still doesn't mean that it is a "declaration of war" which is something very specific giving the executive additional powers. You can make this argument all day Amlord, it just has no basis in law. This decision proves it and it'll continue to be upheld as it goes up the ladder because that is the law.

Incidentally you might want to read this as it shows you what an actual declaration of war looks like, and yes those words are actually used.

My question Amlord is how do we know who TSP targets? You say that it is used against our enemies, but how do we know this? Because it seems that the targets are classified as National Security, it could be everybody and we don't know it, nor does the court system.

I have a lot of problems when there is no checks and balances to this. As for former intelligence person for the US Army and liberal Republican I have a lot of issues, especially when the plaintiff has no idea if they are a target or not.

I just want there to be some sort of oversight and not by the same group that is administering it.

Amlord, I hope you don't get the feeling we are all trying to gang up on your because that is not my intention (but i know you can handle it ). But I think that the plaintiff's do have a legal standing and that all Americans have a legal standing when an unconstitutional program is being used. Whether it is against our enemies or against our neighbors is obviously important...thats why there needs to be warrants. I really see no reason to just forgo the warrant in a situation such as this where warrants have been granted before. If the targets of the search were foreign enemies or domestic enemies, then their case for a warrant should not be too difficult and a quick grant would follow. Oversight is what is most important. Now i understand that the plaintiffs may not have concrete knowledge of harm but just because an unconstitutional program appears not to hurt anyone doesn't mean its ok. With no records of warrants being kept, then anyone can potentially of been harmed and thus the plaintiffs can in a way represent all of us.


It may be semantics Amlord, but thats all that constitutional philosophy and interpretation is. There is inherent wisdom in the provisions that the Founding Fathers placed in the Constitution and they are there for a reason. Whether or not we are in a de facto state of war has nothing to do with what powers the Executive is granted. Only through a declaration of war passed by Congress does emergency powers go to the President. If Congress grants those emergency powers during times of peace or of assumed conflict, then it opens the door to tyranny. However, we must also remember Congress' responsibility in this area. Since it is through Congress that appropriations are given, it is their job to check the President's wartime powers by withholding funds. So neither the Executive or Legislative branches are doing their jobs and both are ignoring the Judicial.

1. Do you agree or disagree with the legal aspects of the ruling? Why?

I am elated- though, I am a bit afraid of the GW "appointees" to the bench- I think they are on GWs payroll most of the time and pretty much do what Cheney tells them to do - I think the entire idea that "no one is harmed, or has to prove harm" is complete bunk when it comes to riegning in govermental power grabs like this one- the entire "enemy of the state" crap we keep getting dealt with by this administration is what makes GWs regime and Nazi Germany or Stalin compare so closely- they keep yelling "enemy of the state" whenever they want a little more power- even though, they have not been able to demonstrate even a NEED for this kind of legislation- in Britain- they got the bad guys through good old fashioned snitches- so why do we even need this crud? Because it is a blatant power grab by the executive branch- and the ACLU once again proves that they are possibly the most important organization in America to combat ACTUAL threats to freedom. ACLU will get another check from me!

2. This will inevitably go to the Supreme Court, how do you think they will rule?

Hard to say- GW has really appointed some scumbags in his term- that will be the key. BAsically it is the GW yes men vs those that actually value the constitution- we all know how GW feels about that "G-D piece of paper"

Two points: Britain did get a tip, but that is not the extent of the investigative powers they used to foil the plot. A little knowledge goes a long way.

Second point: play the Hitler card and demonstrate your desire to be ignored. Do a little research into the methods FDR's administration used to foil "Fifth column" "saboteurs and assassins" as FDR referred to them. He flat out refused to cooperate with Congress, believing he couldn't trust them. This was all BEFORE we entered WW2. FDR's Domestic Surveillance



Sorry Leder, no such powers exist in the way you seem to be suggesting. Yes, during war certain executive powers expand, but not to the point of tyranny. My reasoning here does not rely on any extra power that might be granted or expanded during a war, merely the President's inherent Commander in Chief powers.

In United States v. Butenko (1974) the Court said:


In United States v. Brown (1974) the Fifth Circuit found that


The Court cites Constitutional authority for the President, not statutory authority. This is key. The Congress cannot intrude on the Constitutional authority of the President because of the Separation of Powers doctrine.

Curiously, the judge in the current matter couldn't seem to find these precedents. Utterly incredulous.

From United States v. Truong (again)


The Court had settled that foreign intelligence gathering was a Constitutional power of the Executive. FISA intrudes on that, arguably making FISA un-Constitutional.

Further:


In re Sealed Case, No. 02-001, 310 F.3d 717, 745 (FISA Ct. Rev. 2002) (emphasis added). In
rejecting a Fourth Amendment argument made by the ACLU as amicus in that case, the Court
of Review held that FISA, as amended by the PATRIOT Act, was constitutional, "[e]ven
without taking into account the President's inherent constitutional authority to conduct
warrantless foreign intelligence surveillance." Id. at 746 (emphasis added).

Amlord, I did not contend that foreign intelligence gathering was unconstitutional. Post#9 is where i made the distinction. This program was set up to put surveillance on Americans on American soil. If the surveillance was done on the opposite side, for instance in Pakistan or Saudi Arabia, then it would be ok in my mind since the target would not have been the American but the foreign agent. That is what the foreign intelligence rulings you have provided are talking about. We are discussing a domestic spying program that is lawless.



When they expand in times that we are not at war then it is tyranny. Thats why the Founders put the declaration clause in the Constitution, so that a distinction can be made.

You can contend that the War Powers Act violates the Constitution, but this ignores the intention of the Founding Fathers. The executive was not given wide ranging powers to use the military whenever he pleases. Commander in Chief merely means that the President is the top general so to speak ala George Washington. It does not mean that he can use it without Congressional approval because that would contradict the fears of the FFs who were against a standing army and centralized power. As James Madison put it: "In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department.’’

CATO Institute



The Seperation of Powers doctrine was created for this very reason. It wasnt implemented to prevent Congress from violating the President's war powers but to prevent the Executive from violating the legislature's war powers. Here is the question you must ask. If the President has the ability to conduct secret surveillance of international calls and e-mails of American citizens, what is to stop him from conducting the same in the domestic realm? The reasoning would be strikingly similar if the argument is made it is for 'national security'.

Wartime Executive Power and the NSA's Surveillance Authority



Once again, the burden of proof is on the government to prove the validity of the program. And i've said it before but ill keep saying it: If we give government the power to do good, we give it the power to do evil.

The Executive Branch publicly made very clear the types of communication subject to TSP surveillance. The type of communication engaged in by the plaintiffs was proven to be of the type subject to that surveillance. The existence of the program not only had a chilling effect on their First Amendment rights, there was also harm that came as a result of the chilling effect that the TSP had on their clients, subjects, witnesses. This is where the "without more" phrase from Laird becomes important. There was more than a chilling effect based on the programs existence... actual harm came as a result of the TSP's existence. Which, as the justice states, places the situation of the plaintiffs outside the limitations of Laird. The other cases cited that relate to Laird are subsequent precedents that recognized limitations to the reach of Laird. In those cases – as this one, the government attempted to use the Laird to claim that the injury wasn't sufficient. Of particular note is Presbyterian Church v. United States in which:



Such is the case with the plaintiffs in this case. I think that, given these recognized limitations on the reach of Laird (which the Defendants cited as the precedent for their motion to dismiss), the plaintiffs have standing.



The AUMF, because of its general language, is subject to the specific language of FISA. If Congress used the general language, allowing for what is "necessary and appropriate", it must be assumed that they meant in accordance with the specifics of the laws of the United States. FISA deals very specifically with Declarations of War. There is nothing in the language of the AUMF or any reason to assume that when Congress made a de facto declaration of war that they meant for the Executive Branch to violate FISA's guidelines for Declarations of War.

Two points: Britain did get a tip, but that is not the extent of the investigative powers they used to foil the plot. A little knowledge goes a long way.

Second point: play the Hitler card and demonstrate your desire to be ignored. Do a little research into the methods FDR's administration used to foil "Fifth column" "saboteurs and assassins" as FDR referred to them. He flat out refused to cooperate with Congress, believing he couldn't trust them. This was all BEFORE we entered WW2. FDR's Domestic Surveillance

But- without the tip- none of the rest would have been possible- and, with the tip- that would have easily satisfied the "probable cause" part of a warrant, there has never been any need NOT to balance this power- I mean- it is downright stupid to think that a retro-active warrant is somehow not timely enough?

There is a good precedent for "using the hitler card"- because, in a free society- it is not usually outside forces that causes it to crumble, but "well meaning but over zealous control freaks" - Stalin is a great example- he did not really change the constitution of his country- he, instead, used a clause in thier constitution that Putin is using today "enemy of the state" clause that supercedes any other checks and balances. Russia, even under Stalin , has a 'presumption of innocence" legal system EXCEPT for "enemy of the state" (English Horn may help me out here, it is something like "rule 51" or "rule 52"- there is a specific phrase for it) language-

and this is where GW and those other horrible folks- whether it makes you roll your eyes or not- are in close company.

Take your worst political opposite- say- Ted Kennedy- are you comfortable with him having absolutely NO checks and balances on his power as executive head by simply declaring Amlord "enemy of the state" and hinting that you have some connection with terrorists (remember, no need for proof here!)

That is why there is a very clear line drawn linking GW and Stalin and Hitler- it is the erosion of a MAJOR check and balance of the executive power that allowed them to take power- Hitler's being a very good analogy- because it took him some time to do it, by incrementally expanding his power.

I am not saying GW has concentration camps (though, it seems he very well might be doing something like this, by proxy with shipping political enemies, perhaps even real enemies, though the track record has not been all that great, to other countries with less human rights protections) - but it is NOT a long road to giving the Executive branch this kind of power and a dictatorship.

Amlord- what is to stop the abuse of power? Where are the checks and balances? What keeps ordinary citizens from being caught in this wide net?

Amlord- you label yourself as conservative- but I thought that conservatives were AGAINST more goverment intrusion into ordinary citizen's lives- why are conservatives so willing to give away power to goverment and allow it such sweeping power without any oversite?

At no point has GW ever demonstrated any need to answer those questions- in fact, calling those that do some kind of anti- American- again, shades of early fascist Germany.

Distasteful as that may be to you- the link sticks- because he is simply trying to erode oversite into the executive branch, and that has always been the path to dictatorship in the world.

CR: show me one example of a political enemy being rounded up and sent to a concentration camp and I'll concede the point. Show me one example of SS style political goons going around to silence opposition and I'll concede the point. Show me one example of Bush doing anything that does not have precedent in executive powers, and maybe I'll concede the point. You fell off the deep end long ago if you think that Bush has the power to declare anyone an "enemy of the state" (gosh, I can't seem to find Bush every saying that or using it to imprison an American).

Warrantless wiretaps in regards to national security matters are well established as Constitutional by the Courts. Their use has been upheld by the Courts and they have found that authority to stem directly from the Constitution as a part of the President's Commander in Chief responsibilities and not from some statutory authority granted by Congress.



The one major power I grant the government is protection from internal and external enemies--especially external enemies. The Constitution lays this responsibility at the feet of the President. Congress has declared war on terrorists. Congress has demonstrated its continuing support by funding the War on Terror. Both of these points I have shown is how the Courts view war and peace.

There is one legitimate point buried within your latest anti-Bush diatribe and one which loreng59 brought up earlier: who checks the government's power in this area?

The short answer is: the American people.

George Bush is not some evil genius pulling levers making people do things. I think we can all agree on that. His strategy for dealing with this situation is carried out by thousands upon thousands of people. In order for Bush to install a dictatorship, he would need the support of these thousands to make this happen. But nobody wants that. Nobody will allow that.

You might as well ask what prevents the President from bombing San Francisco or invading Canada. There isn't a specific law against it, but the American people would never accept it. We don't ask the Pentagon to run possible bombing targets past a Congressional Committee or get a warrant for bombing the enemy. We must trust the President to a certain extent that when he conducts war, he does it against our enemies.

The checks on what is going on is the elections which occur every other year in Congress and every fourth and sixth year for other offices. If you don't like what's going on: vote the bums out. If you think finding out what the terrorists are talking about and, more importantly, who they are talking to in the United States then throw out Bush and elect a dove like Dennis Kucinich (my Congressman ) who I guarantee you will provoke the terrorists by his appeasement and ultimately escalate the conflict.

I personally hope you don't get enough support from the American people to start down that path, but I would accept it. That's fine, that's how our Representative Republic works.

Huh- I wonder if the Germans that voted for Hitler said the same thing "he hasn't done it YET concentration camps- well, facsism has become a bit more sophisticated- you know- outsources- kidnapping folks, taking them to foriegn countries to be tortured- same stuff, more sophisticated.

REgardless of all that stuff- it is the enemy of the state stuff that worries me- it isn't even GW himself- it is the basis of more powers heaped on more powers- each president building on the gains of the last- until, maybe it isn't Saint GW that installs himself as dictator= but the evil Hillary Clinton- or Ted Kennedy- all based on the erosion of checks and balances- "enemies internal and external" is a pretty sweeping statement- so sweeping- who gets to decide who the enemy is? GW? Hillary? Ted? - The real key here is that things need to be brought before the judge- now- if we are only talking about foriegn intelligence gathering- with no US citizen involved- I would tend to agree- wiretap and eavesdrop away- it is all part of the spying game- but what you are playing is the same thing J Edgar Hoover was playing- and that was one very, very vile evil man. And he got away with it for a very long time because of the same "enemy of the state" that allowed the sheep to walk willingly to the slaughter.

But the real issue is wiretapping and spying on US citizens without any oversite- and those that back GW without question seem to avoid that issue at all costs.

And the other is this- how in the world can obtaining a warrant AFTER the fact be to late to gather the info?

Just an FYI. The SS's attentions weren't singularly devoted to Jews, gypsies and gays. Many political opponents were threatened into silence, killed, or shipped to concentration camps. This is well documented:

Wow. This thread has taken many angles since I posted. I'll say now that I'm not equating Bush to Hitler (who wasn't elected, incidentally ) here. Nor do we need a formal declaration of war to spy on Al Qaeda or Al Qaeda suspects. Good grief! I hope they are spying on Al Qaeda and legitimate suspects.

My stand on this issue is pretty simple and was best expressed by Loreng. This worries me because there is no accountability or oversight. Merely stating "oh, yeah, we only tap the wires of those we suspect" isn't enough. There needs to be an unbiased third party, which is the reason why we need warrants for this sort of activity. If the government has proper probable cause obtaining such a warrant should be easy.

Second, if the law is the problem, then make a case for changing it and go through the proper channels... don't break it.

Edited to add: Something else to consider in these cases is that evidence collected from illegal wiretaps is inadmissible in court. To put the right people away, we need to do this right.

Necessary and appropriate force, Amlord, necessary and appropriate. The general is ruled by the specific. In this case, this means the AUMF, in terms of electronic surveillance, is guided by the specific rules of FISA.



Two very different scenarios. And what branch of the military could the President legally use to bomb San Francisco?

I have a problem with it being just the American people. For one thing how long would it take the American people to rein in a wayward President? I mean that the American people would have to first vote out all of Congress, then the Senate before we could install a government that has the proper checks and balances. How much damage can be done in those intervening years?

Besides this attitude that you have to prove that you are affected by this invasion of the government before you can complain out about is literally a Catch-22. They keep who they are wire tapping classified and refuse to even tell the courts, then claim you must prove that you have been harmed before you can find out if they are violating your civil rights? Is this some sort of sick joke?

Let us not forget the words of Rev. Martin Niemoeller, who first welcomed the Nazis to power in 1933 but was confined to a Berlin prison in 1937:

“First they came for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, but by that time, no one was left to speak up.”

editted to add:
Sed quis custodiet ipsos custodies?

The checks I meant were not limited to elections.

The people executing the actions here are also American citizens. Does anyone think that the military is loyal to the President personally rather than the country? Is the CIA? The State Department? People will object to "rounding up Democrats" or other abusive situations.

What we have here is a war situation. We want to kill, capture, or disrupt those people who are planning to attack us. It is the exact same tactic used by FDR in WW2, and every other military conflict. If the agents of a power we are at war with make calls to the US, we need to know about it. This does not mean that this alone is enough to implicate a US citizen. However, it would be the basis of an investigation.

But it never starts out that way. The process is insidious.



There are a couple of things here. First, during the world wars we were at war with actual countries, and every citizen of those countries was suspect. Who is suspect now? Honestly...everyone? There needs to be probable cause. Furthermore, there was a beginning and an end. Neither is the case now. We are fighting individual entities, and we will likely always be at risk. Where does it end? FISA didn't exist during the FDR administration. It is even tailored to address such threats, and permits surveillance while warrants are sought. Why not simply use the FISA courts and get warrants?

I am curious to know this because I have looked long and hard on the FISA courts and can't find exact procedure on this. How do the 48(or it may be 72 hour) warrants work. Because of urgency do they listen in on calls and then after obtaining the information do they get the warrant?

The protocol can be found here for emergency exceptions (1805f).

How many people would it take then to do this? One, maybe two at the most if they are senior enough. Why that few, because there appears to be nobody that is in place to make sure. Heck all a person has to do is say okay spy on this bad guy, who is going to tell them that they aren't one of the bad guys?

It' not like saying 'lets round up Democrats' and more like that person (who is a Democrat) is a bad guy and we need to spy on him. Now since there is no warrant required, guess what who is going to say that he didn't do anything wrong, nor can he defend himself because he has no right to now why he is being targeted, since he can't prove that he was spied upon he has no right to find out why either. Doesn't that bother you a lot? I cherish our freedoms, I gave 9 years of my life to defend them, I refuse to surrender them without one heck of a fight.

It can happen just as easily as it did when Senator McCarthy was doing his witch hunt, actually much easier since it's classified in the first place. Pretty scary to me.

These wiretaps cannot be used in criminal prosecutions. They cannot be used as the basis for "rounding people up". If they did get warrants (including FISA approval, which isn't truly a warrant) then they could round these people up.



There was nothing insidious about how the SS rounded people up in Germany. There was nothing insidious about Stalin's gulags. There was nothing insidious about the brown shirts or Mao's purges during the Great Proletarian Cultural Revolution. In short, these atrocities were enabled and perpetrated not only by the leadership of these countries, but also by the complicit populations of those countries--the majorities I might add.

Now I see the argument coming--but Amlord, you are the vanguard of this complicit public. You are allowing these abuses to occur because you condone this type of behavior.

To which I answer: poppycock. (Don't think I've used that term in the at least a dozen posts I have on America's Debate .)

This program is limited in scope and targets the enemies of this country. When someone is arrested on a groundless basis I stand ready to call the government on it, as should everyone else in the US. However, I will not let my kids' security to be compromised by arguments that amount to slippery slope arguments.

This program is Constitutional as far I my research has discovered. The Courts ruled that these types of wiretaps are a part of the President's duty as Commander-in-Chief to defend this country from foreign attackers. This modus operendus has been used by Presidents from Clinton to FDR. The fact that the Courts ruled that the power is inherent to the President means that a law such as a mere law such as FISA cannot supersede it.

Terms like insidious are not useful here. Actual harm must be shown, not potential or imagined harm, to have standing in a court of law. The foreseeable insidious harm would be against the Muslim community. But as of today, I haven't seen a call to round up Muslims, despite what's happening in Dearborn. More info on Dearborn.

As for this case in particular, the judge is so inept in her analysis. As I have previously stated, she missed precedents and applied the ones she did cite in a very dicey manner. She concludes that the program violates the First and Fourth Amendments without a shred of evidence to back up her assertion. Even critics of the program have bemoaned how awful the legal basis of this ruling is. I guess when the ACLU was judge shopping they should have picked a more competent judge instead of simply an ideological one.

Not everything government does is kosher just because a court approves of it. It's very unwise to just sit back and assume that the courts will always be there to protect us. We're citizens, and we have a responsibility to make our own judgment of what the government's doing. And in so doing, terms like insidious are most certainly appropriate to consider.

Having said that, I agree that warrants are probably not practical in situations like these. But there needs to be some kind of independent review process with teeth, along with whistleblower protection for those who expose unjustifiable surveillance.

That's like saying Hezbolla lobbing 100 rockets into Haifa is limited in scope and targets the enemy even though the overwhelming majority of people they hit are innocents.

Now, I'm not comparing wiretapping to rocket attacks, but the analogy is identical. The problem is, just because a call is an international one, it becomes a fishing expedition. There is no probable cause whatsoever. Our entire military stationed overseas is under surveillance by their own government and the nation's right-wing thinks that's fine and dandy.

And Amlord, seriously...I hope we're still debating on these boards when a democrat is elected president and expands his/her powers just like Bush in the name of war. Assuming we get hit again on the next president's watch, you have relinquished all oversight in the name of fear war.

Still Blackstone- no one is saying why they are impractical if gained AFTER the fact? This Amlord and others have still not addressed- what is so wrong with going to justify your behavior AFTER you have done the emergency thing? Seriously- what do they have to hide?

and Amlord- several poeple have rebutted your "precendent" argument very well, so I need not repeat it- the judge was spot on to call GW on this one.

The NSA warrantless wiretaps were chosen as a matter of national security in the face of a stateless enemy, namely al-Qaida and other terrorist organizations. Since a "war on terror" can never actually be won--that is, there will never be a conclusion of hostilities nor a declaration that the enemy has been defeated--it is absurd and frightening to assume the President receives wartime powers. This would imply that every President from here on out would receive these wartime powers, which I'm sure Republicans would scream about if a Democrat were elected. Terrorism is an idea, not a state, which means terrorists can pop up anywhere for anything. We would first have to define what terrorism is--I view Sean Hannity's radio program as terrorist propaganda (using fear to gain political ground), but does that mean we have the right to barge in and take him prisoner? Obviously not.

Lewis Black made a humorous joke a few years back which is even more relevant today with the NSA wiretaps. He joked of the 9/11 commission's questioning of Rumsfeld, "We know who the enemy is and we have the proof to back it up." When asked what the proof was, Rumsfeld responded, "We can't tell you." It is psychotic and a complete slap in the face of our judicial system (which, let's face it, conservatives have hated for a long time now). Where do these wartime powers end? With an enemy that can never be defeated, the answer is seemingly "never".

The judge's decision was appropriate and legally sound--the argument of precedent can't really be used since this is a completely new problem. I can picture a scenario which plagued Isaac Asimov's stories, where a product created to protect us reinterprets what we need protecting from. If we simply allow the executive branch the right to refuse FISA recognition, then there is a very plausible situation which leads to a fascist state (at what point do we become what we are fighting?). It only requires using fear and the declaration of protection to