Say Anything Blog

Jimmy?!  No, say it ain’t so!!  He either has lost his memory or subscribes to the double standard rule.  Second, we were not at war then.  Third, glad to see this format back, Rob.

Chief,

Your are far too experienced to be surprised by the ruthless hypocrisy of the likes of Jimmy Carter. 

Rob,

I too am pleased to see the format back where it was.  Thanks.

I guess “inherent” only applies to Dem Presidents during peacetime.

I found this article from 2000 interesting. The viewpoint expressed would be rejected by Bush supporters today which leads me to ponder the changing nature of American conservatism. Is there a conservative defence for the unchecked surveillance program or is the war on terror so significant that it forces conservatives to revisit some of the core beliefs they have held for such a long time?

Hmmm…

So you are agreeign that President Bush has broken the law eh? Might pay to read the articles you link to…

The Truong case, however, involved surveillance that began in 1977, before the enactment of the Foreign Intelligence Surveillance Act (FISA), which established a secret court for granting foreign intelligence warrants.

Personally, the eavsdropping doesn’t bother me - I have nothing to hide. But FISA was enacted in the time between Carter and Bush, and specifically allows the government to implement wiretaps without a warrant, with the proviso that a warrant be obtained with 72 hours of the wiretap being placed.

Why is it so hard for President Bush to follow the law?

Mcair, from the post:

It is true that this case ruled on surveillance taking place prior to FISA being enacted, but that’s not the point. What is key here is the way the court defined warrantless domestic surveillance. The ruling states warrantless monitoring taking place domestically for the primary purpose of gathering intelligence on foreign threats falls under the inhereht powers of the executive branch.

That this surveillance took place before FISA is irrelevant.  The court ruled that the espionage in question was within the executive’s inherent powers to authorize.  Inherent powers meaning constitutional powers.  I shouldn’t have to tell you that statutes like FISA cannot supercede the Constitution.

Mike:

9/11 changed everything.  For me at least.  I wasn’t even following politics in 2000.

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:

That this surveillance took place before FISA is irrelevant.

WHAT? You start with “Bush didn’t break the law” and now have morphed into “even if Bush broke the law, Carter’s lawful acts of 30 years ago justify Bush breaking the law today”.

And - you still fail to address why the President cannot follow the law, when the 72-hour provision clearly would allow him to do so, if he so chose.

I want to hear your reasoning for him not retroactively obtaining the warrants.

Even that crazy liberal Bob Barr finds your position untenable.

Mcair: How does one go about breaking a law that is not constitutionally enforceable?

The judges in the 4th circuit ruled that this sort of intelligence gathering is within the President’s constitutional powers.  FISA cannot override those powers.

As usual, you have no idea what is going on.

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 want to hear your reasoning for him not retroactively obtaining the warrants.

Chirp.Chirp............chirp.chirp....

I want to hear your reasoning for him not retroactively obtaining the warrants.

Chirp.Chirp............chirp.chirp....

He didn’t have to. If he did get the warrents, you and the rest of the fifth column would make sure that the news would span the globe.

Now chirp away bird brain.

I want to hear your reasoning for him not retroactively obtaining the warrants.

Because he doesn’t have to.

Now tell me why the President should follow extra-constitutional laws.

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 want to hear your reasoning for him not retroactively obtaining the warrants.

Because he doesn’t have to (follow the law)

Think about that. When he’s impeached, you’ll remember this moment.

Mcair, Rob said he didn’t have to follow extra-constitutional laws… You missed that word, which makes all the difference in the world.  Congress does not have the ability to take away powers from the President which are guaranteed him under the Consitution.  The Federal courts have shown the power of warrentless surveillance of foreign enemies is a Constitutional Power granted to the President.  Congress passing FISA does not, cannot, and should not change that fact.

What charges are you planning on bringing up against the President, anyway… Ignoring the Terrorist Bill Of Rights?

mcair01 said, Think about that. When he’s impeached, you’ll remember this moment.

Impeached for what? How is he not following the law here? Spell it out and be concise if you can.

He can’t.

I’m not even sure he understands what is going on here.  All I’m seeing is mindless partisanship.

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’m not even sure he understands what is going on here. All I’m seeing is mindless partisanship.

Some call it partisanship...others call it Rule of Law:

Republican Who Oversees N.S.A. Calls for Wiretap Inquiry

NSA Lawsuit Sends Administration Strong Message to Uphold Constitution

Are they partisans who understand what’s going on?

Are they partisans who understand what’s going on?

Can you just answer the question?

They are Congressman who believe the power of their branch of government goes further than it really does.

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:

They are Congressman who believe the power of their branch of government goes further than it really does.

I raise the same issues that they have, but I’m a mindless partisan.

Look, the President has clearly overstepped bounds here, and that’s why there’s an investigation. If the court ruling you allude to is so compelling, then the investigation would have been halted. Republicans do not overwhelmingly support the President on this.

Get real - it’s a serious problem for Bush, not one you can dismiss with a trite “because he can”.

“Inherent powers” seems to be a contentious doctrine judging by my Googling. I recognise that the President’s role as Commander-in-Chief combined with Congrssional authorisation to conduct actions against the perpetrators of the 911 attack are the basis for ignoring the requirements of FISA. That being said, the President is not the final arbiter of the Contitution and any claims he makes to authority not expressed in the Constitution are subject to challenge and ajudication if necessary.

Congress has passed a law that regulates surveillance in certain situations. The President has elected to ignore the law because he believes it encroaches on his powers. The case involving Carter may not be legally relevant if statutory law was not broken as appears to be the case with the current program. Congress seems to prefer amending FISA to accomodate the President rather than challenge the program’s legality but I suspect that that the desire to expand Presidential powers trumps the desirability of dotting the I’s and crossing the T’s.

Conservatives objected to Clinton doing it because he used the OK City bombing to go to war against all Republicans by branding them as “right-wing extremists”.  It was wartime in his mind.  Now, we have a real war, and the same people(the Dems) who thought it was OK for Clinton are trying to make the President a criminal for doing in real wartime what their President did in peacetime to further his partisan war against his political opposition.  See the difference?  Inherent powers have to do with wartime, and we are now at war.  Get it?  Does anyone think that what Clinton did made the country safer?

See the difference?

I see a bunch of paranoid nonsense. Sorry for sounding harsh but that is the most ridiculous stuff you have written yet.

Inherent powers have to do with wartime, and we are now at war. Get it?

At least this point is discussable. Inherent powers have to have some limit or else your Constitution is not worth the paper it is was written on. The question to be answered is how far the President’s powers extend during wartime.

Hypocrisy, a wise man once said, is irony gone awry.  A fitting sentiment.

In US v. Truong, the US Fourth District Court said, in part,

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.

In the Truong case, the court upheld a conviction for espionage based in part on information obtained by warrantless surveillance by the federal government.  The Attorney General whose Justice Department authorized the surveillance without obtaining a warrant was Griffin Bell.  The President was Jimmy Carter.  It should also be noted that the United States was not engaged in a war at the time.  On appeal, Truong argued that the lack of a warrant tainted the evidence against him and his conviction should thus be overturned.  The Carter administration argued, successfully, that because the surveillance was ordered in connection with foreign affairs and the collection of foreign intelligence, a warrant was not called for.

In Department of the Navy v. Egan (http://www.justia.us/us/484/518/case.html#530) decided 10 years after FISA, the court said,

The President, after all, is the “Commander in Chief of the Army and Navy of the United States.” U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.

The Court also has recognized “the generally accepted view that foreign policy was the province and responsibility of the Executive.” Haig v. Agee, 453 U.S. 280, 293-294 (1981). “As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.” United States v. Nixon, 418 U.S. 683, 710 (1974). Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs…

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

Those who would have the courts overrule the President’s actions as Chief executive or Commander-in-Chief, as authorized by the Constitution, would do well to review the court’s ruling in CHICAGO & SOUTHERN AIR LINES V. WATERMAN S.S. CORP., 333 U.S. 103 (1948):

The President also possesses in his own right certain powers conferred by the Constitution on him as Commander-in-Chief and as the Nation’s organ in foreign affairs…

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports neither are nor ought to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

For those on the left whose visual acuity does not include the actual trees that make up the forest, what all this legalese means is that those powers conferred on the President, any president, by the US Constitution, his “inherent” powers, are not subject to modification or revocation by the Congress.

Those who would dispute the President’s authority to conduct the NSA program, either pre- or post- FISA, despite the congressionally authorized war in which we are engaged, will have ample opportunity to make their case to the voters in two and a half years, but the fact that a Democrat president has successfully argued in favor of warrantless surveillance of an American citizen during peacetime, in a mere criminal case, does not bode well for those whose vision extends no further than the left side of their nose.

MikeAdamson wrote, I see a bunch of paranoid nonsense.

Don’t agree with someone? Call them “paranoid”.

What’s up with that tactic?

Sorry for sounding harsh but that is the most ridiculous stuff you have written yet.

The sad thing is: he was telling the truth.

MikeA: I assume you were referring to Clinton’s war on those he labeled as “right-wing extremists” as paranoid nonesense.  I was around at the time, and what I wrote was an accurate depiction of what was going on at the time.  The OK City bombing was first thought to be the work of what is now called jihadists, but as soon as Timothy McVeigh was identified as the perp, the attacks on small-govt conservatives and militia members began full force. Every Republican was described in the MSM and by the Clinton operatives as extremist if they had ever supported smaller govt, and if they opposed the Dems spending policies.  Great way to suppress the opposition.  This is what happened.

Bat One quotes

The Court also has recognized “the generally accepted view that foreign policy was the province and responsibility of the Executive.” Haig v. Agee, 453 U.S. 280, 293-294 (1981). “As to these areas of Art. II duties the courts have traditionally shown the utmost deference to Presidential responsibilities.” United States v. Nixon, 418 U.S. 683, 710 (1974). Thus, unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs...

I wonder if FISA qualifies as a specific provision.

Bat One opines that

those powers conferred on the President, any president, by the US Constitution, his “inherent” powers, are not subject to modification or revocation by the Congress.

I can agree with that. I suspect where we differ is that I can’t identify all of the President’s inherent powers...I suppose if the Founders could have done so they would have enumerated them thus relieving us of the task of debating them.

lik said

Don’t agree with someone?  Call them "paranoid".

Au contraire Mr. Shoe...I didn’t call him paranoid but rather his nonsense.

r108 said

This is what happened. 

With all due respect...that did not happen. 

does not bode well for those whose vision extends no further than the left side of their nose.

MikeAdamson:

Congress has passed a law that regulates surveillance in certain situations.  The President has elected to ignore the law because he believes it encroaches on his powers. The case involving Carter may not be legally relevant if statutory law was not broken as appears to be the case with the current program.

This is a misrepresentation.  The administration has quite clearly stated that their justification War Powers as augmented by AUMF. As I have pointed out before, FISA has an express provision under which it can be over-riden by other congressional action, and it is the administration’s interpretation that the AUMF is such an occasion.

Inherent powers have to have some limit or else your Constitution is not worth the paper it is was written on.

Rob and I have both pointed out the limits on the President’s Article II ("inherent" powers.  1) Repeal AUMF, 2) ammend AUMF to not include the authorization of warrantless intel intercepts, 3) cut the funding for the NSF program.

The question to be answered is how far the President’s powers extend during wartime.

How far, perhaps.  In my opinion, the question about the extent of the President’s powers to authorize warrantless intel intercepts has already been tested and answered by Sealed Case No. 02-001:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

As has been said, if Congress doesn’t want the President to conduct warrantless surveillance, let them modify the AUMF.  Excepting that, quit all of the bitching.

Sorry for bitching Carrick...I’m just interested is all. The Truong case is interesting, even compelling but the fact remains that it took place at a time when a FISA did not prescribe the appropriate procedure for conducting surveillance of that type. Congress has since passed a law  which lays out  the appropriate procedure. You, and George Bush, say that he has merely exercised his inherent powers and you both may be right but the question has not been definitively answered because the Constitution does not enumerate the inherent powers and thus those powers are still open to interpretation, speculation and debate.

I don’t think that the surveillance is wrong at all. I would worry about the lack of oversight were I American but I believe that the State has an obligation to defend its citizens against the enemy and the infringement on indivividual rights is necessary at times. I find the fact that I am in agreement with "conservatives" on this point ironic which is probably why I remain interested in the topic....that and an honest but academic interest in Constitutional niceties.

MikeA: With all due respect, that is exactly what happened.  You can Google it. Consider this: In the thirties, FDR suspended some constitutional provisions in order to implement his New Deal.  He attempted to do even more by trying to increase the number of SCOTUS justices to fifteen.  In WW!!, he suspended most constitutional rights in order to win the war, and succeeded in that effort.  RFK spied on MLK illegally, Nixon spied on the DNC illegally, Carter and Clinton spied on citizens for political reasons.  These are facts.  The US survived all this quite well.  The current scareology about the President, even if all the speculation is true, doesn’t rise to the level of the previous examples I have cited.  Even if it’s all true, and I doubt very much that any of it is true, what is the resulting danger.  IMO, it’s all about political advantage, nothing more.