Say Anything Blog

Number two, however, isn’t a legitimate complaint at all. That’s because we don’t know exactly who was spied on.

Several officials said the program helped to uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.

http://www.iht.com/articles/2005/12/16/news/spy.php

I posted a more complete response to you at my blog, but I’ll sum it this way: the point isn’t the wiretapping, it’s the president’s decision to IGNORE THE LAW requiring him to do it with a warrant. The same way criminal cases are routinely thrown out due to warrantless searches, Bush has jeopardized pending terrorism cases. And what he did was plainly illegal. The Rasmussen poll tested nothing of significance. It was ... how do you say… a waste of space.

ReidBlog:

the point isn’t the wiretapping, it’s the president’s decision to IGNORE THE LAW requiring him to do it with a warrant.

I suppose you are referring to Bush’s Article II powers, invested in him by the constitution?

Legislative action like FISA cannot modify Bush’s constitutional powers.  Authorizing the interception of enemy communications falls under the broad legal definition of the use of force, which was authorized by Congress after 9/11. This included with Bush’s War Powers inferred under Article II, Section 2 are sufficient grounds to order the interception of communications (technically not wiretaps though irrelevant to the argument) against non-US citizens

People who’ve looked at this from left, center and right in any detail have known this for at least a week.  Where you’ve been? On vacation???

I’ve read your extended response (here and also linked above in in the pings section should anyone else want to read it) and I must say that I’m somewhat confused.  You want Rasmussen to ask what Americans think about President Bush “breaking the law” to conduct this surveillance, yet I’m not at all sure that he did break any laws.  Maybe you think so, but the Constitution and relevant case law say otherwise.

By “the law” I assume you’re referring to FISA.  Unfortunately, FISA doesn’t apply in this instance as the President is using his war powers as laid out in Article II of the Constitution to support these espionage initiatives.  Carrick wrote a good summary of the situation in this comment on another thread:

The only way you can modify the President’s Article II constitutional powers is by constitutional amendment (Article V). Courts are given the right (Article III powers) to determine the limits of presidential power invested by Article II.

Putting it bluntly, if the President has a right to authorize warrantless intercepts of enemy communications under his War Powers authority, FISA or any other congressional legislation cannot modify these constitutionally conferred powers.

They can revoke their prior Authorization for the Use of Military Force, which would then prevent him from using his War Powers. They could also simply stop funding any activity they disapproved of.

Similarly, the SCOTUS could conclude that the President never had the power to order warrantless intercepts. That does appear to be a likely scenario, but it is the other check & balance within the federal government on th ePresident’s constitutionally-granted powers.

I’m not as optimistic as Carrick is about SCOTUS ruling against the President on this, but his summary of checks and balances should put lie to your “he broke the law” meme.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

Dave, your out-of-date source aside, there is no evidence that unwarranted domestic wiretaps on Americans.  Indeed the White House says quite the opposite.  They might be lying, but there is no credible public evidence that this has happened.

Evidence gathered for military use is routinely used as the basis for criminal investigations.  “Helped to uncover” is not the same thing as “unwarranted domestic wiretaps”.

I never accuse the press of bias, when incompetence would be a better charge.

rOb wrote:

Number two, however, isn’t a legitimate complaint at all. That’s because we don’t know exactly who was spied on.

Several officials said the program helped to uncover a plot by Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting Al Qaeda by planning to bring down the Brooklyn Bridge with blowtorches.

Well, I guess I just ended up duplicating Carrick, but you get the idea.

What bothers me is how many people are totally oblivious to the powers vested in the Executive office.  From Lincoln suspending habeas corups during the civil war to Clinton authorizing warrantless physical searches in more recent times, Presidents have never been shy about exercising these powers.

What has become a problem, in recent years, is that Congress hasn’t been acting like the “check” on Executive power they were meant to be.  When they authorized the use of force after 9/11 they left it open-ended, which then empowered the President to use his Article II war powers indefinitely.  If Congress wants the President to stop using his war powers they should, as Carrick pointed out, overturn their authoriziation for force.

The problem we have is this: The nature of war has changed.  We are no longer in a situation where we can issue formal declarations to a head of state of another country.  We are fighting an enemy that doesn’t wear a uniform and doesn’t reside specifically within the borders of one country.  How do we fight this enemy while still protecting ourselves from overzealous political leaders using the never-ending war to expand their own powers (though I don’t really think this describes Bush)?

I don’t know what the answer is, but one thing is clear: We need to review the Constitutional and statutory provisions that govern our leaders and their ability to protect the country.  They were written for another time and need to be updated.

When the people fear their government, there is tyranny; when the government fears the people, there is liberty.

-- Thomas Jefferson

Rob’s recently listened-to songs:

I should point out that I had an important typo in the comment of mine that Rob enclosed. It should have read

That does not appear to be a likely scenario, but it is the other check & balance within the federal government on the President’s constitutionally-granted powers.

By the way, here is a summary of relevant case law as to the affect of the 4th amendment on electronic surveillance.  The general consensus on the web is that stare decisis is on Bush’s side on this one.

There is also this analysis in the WSJ which delves into the issue of constitutionally inferred presidential power (h/t John Hinderaker of Powerline). 

I’m completely convinced that unless Bush specifically authorized American citizens for unwarranted communications interceptions (and especially other than targeted them for reasons not authorized by the AUMF), that he is squeaky clean on this, protestations from the liberal media aside.

[...] More On The Rasmussen Poll By Rob on December 29, 2005 at 3:13 pm [...]

Grant and Carrick—I think your responses are right on the Constitution, but wrong on the particulars of this situation, if I may say so… The president, in my opinion (and that of other advocates, Jonathan Turley and others—and yes, he has a dog in this fight-- but also folks like John Dean) is not that the president is fully using his Art. II powers in the collection of foreign intelligence. He is fully empowered to do that. But Mr. Bush has essentially EXTENDED those powers into the arena of DOMESTIC intelligence gathering, which IS what the FISA law was enacted to cover. Bush can’t simply extend his “war-making powers” into the gathering of domestic intelligence (something more properly conducted by the FBI, not the foreign intel-directed NSA). He can’t simply order any wiretap on any phonecall including those originating (and in some cases, terminating) in the United States. Mr. Bush has to show the FISA court that BOTH parties to the phonecall are foreign agents. He didn’t even bother to try. He simply ignored the FISA law and the FISA court and wiretapped anyone and everyone he deemed a “terrorist suspect.” Those aren’t his powers under Article II. They’re more like the powers of George III…

And perhaps I didn’t put it well, but my argument on Rasmussen was that he asked an overbroad question, akin to “would you support handing out milk and cookies to orphans? yes or no?” Of course the president should surveil terrorist suspects—the question is, “was the president correct in surveilling terrorist suspects in the united states without obtaining a warrant, as the law requires?” If Americans want to grant their president the authority to junk any law he deems inconvenient to his “war-making powers,” they have elected themselves a king.

"People who’ve looked at this from left, center and right in any detail have known this for at least a week. Where you’ve been? On vacation???”

No, Carrick, I’ve been hanging out here in the real world. You’re finding consensus where there’s only GOP talking points. The White House and its apologists may have asserted that the Congress’ force authorization gave him the power to conduct his wiretap program, but that by no means has become the agreed-upon framework. From Tom Daschle on down, Democrats and even Republicans like Specter have questioned that assertion. The Congress has far from conceded that they granted Mr. Bush this power. You are simply buying his argument.

The original Congressional authorization dealt with al-Qaida. The second one with Iraq. In none of them was Bush authorized to extend his war-making powers to domestic surveillance, and inherently, to the surveillance of Americans, neither of which are covered by Article II. If your argumetn is correct, then Nixon resigned in error. Any president should, under your reading of Article II, be able to assert national security emergency as a justification to wiretap anyone, in or out of the country, whom he chooses to call an “agent of a foreign power.”

Even in the case of Aldrich Ames, the Clinton administration conducted physical searches, not wiretap surveillance, and in the case of monitoring communications WITH FOREIGN AGENTS, they did so with a FISA warrant.

You’re simply applying Bush’s powers to wage war against foreign powers to your fellow citizens, and the Constitution isn’t with you.

Here’s some myth debunkery for you:
http://mediamatters.org/items/200512240002

ReidBlog:

I’ve been hanging out here in the real world.

Sorry to say, Ms. “hanging out there in the real world"-type person, you’ve gotten a number of your facts mixed up, including what I said and didn’t say.

Let’s start with the crux:

You’re simply applying Bush’s powers to wage war against foreign powers to your fellow citizens, and the Constitution isn’t with you.

Actually, I’m not applying Bush’s war powers against foreign powers to the surveillance of American citizens.  Where on earth did you get that idea?  You must not have read very carefully.

What I am saying is that his War Powers + the AUMF gives him the constitutional power to spy on non-US citizens who are deemed a threat and who fall under the AUMF.  It is this statement for which I believe there is consensus on its veracity.

I would agree that Bush’s constitutional powers do not extend to authorizing unwarranted intercepts on US citizens.  See King 1972 for example.

You state

what he did was plainly illegal.

Plainly?

First is it plain what he did? The way I see it,

1) there is no evidence that unwarranted domestic wiretaps were used, and
2) Bush did say that he was using FISA in other programs beside the NSA program outed by the NY Times.
3) The claims by liberals with an ax to grind that Bush admitted to domestic wire taps are false.  Here are the links: (1) and (2).  Neither of these admit to domestic wiretapping.  Furthermore, Bush specifically stated in his press conference that

First, I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates. That’s important. So it’s a program that’s limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa. So in other words, this is not a — if you’re calling from Houston to L.A., that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.

There appears to be no substantiated charges of unwarranted domestic wiretapping, however, if confirmed those would rise to the level of a violation of IV Amendment rights.

I split this up ‘cause it was getting wrong:

Reidblog:

. If your argumetn is correct, then Nixon resigned in error. Any president should, under your reading of Article II, be able to assert national security emergency as a justification to wiretap anyone, in or out of the country, whom he chooses to call an “agent of a foreign power.”

I think you need to refresh yourself on the argument and other relevant facts:

1) Article II, Section II (War Powers)
2) It requires AUMF from congress.
3) It applies to foreign agents and to intel intercepts that occur on foreign soil
4) Nixon didn’t resign over illegal wiretaps, and further, unwarranted wiretaps were routinely used during the ‘60s against Americans. Ever hear the expression “it’s not the crime it’s the coverup?” Or “why do you think FISA was passed?”

Reidblog:

Even in the case of Aldrich Ames, the Clinton administration conducted physical searches, not wiretap surveillance, and in the case of monitoring communications WITH FOREIGN AGENTS, they did so with a FISA warrant.

Geez.  It’s so much better to have somebody come into my house without a warrant than to listen to me on a phone?  This is pure and simple excuse making.

Again, to the extent that constitutional powers apply in this situation (sure to be tested soon), FISA is not germane.

“was the president correct in surveilling terrorist suspects in the united states without obtaining a warrant, as the law requires?

I would contend, based on what is factually known, that this question is not a fair characterization.

If you ever sniff around for ideas outside of what mediamatters feeds you, you might want to start with Jeff Goldberg’s site.