Are YOU an Agent of a Foreign Power?

As promised in the previous post, here's a quick rebuttal to the claim that the government can lawfully spy on an "agent of a foreign power" without obtaining a warrant.

In his opinion finding against the government in the 1972 warrantless eavesdropping case, Justice Powell wrote:

The warrant clause of the Fourth Amendment is not dead language. Rather, it has been "a valued part of our constitutional law for decades, and it has determined the result in scores and scores of cases in courts all over this country. It is not an inconvenience to be somehow 'weighed' against the claims of police efficiency. It is, or should be, an important working part of our machinery of government, operating as a matter of course to check the 'well-intentioned but mistakenly overzealous executive officers' who are a part of any system of law enforcement."
...[It] touches the very heart of the Fourth Amendment directive: that, where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation.
These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. ...The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech."

While judicial safeguards against such invasion are not required when it comes to eavesdropping on a "foreign power," an "agent of a foreign power" is not the same thing, as they are defined separately in Section 1801 on Foreign Intelligence Surveillance. Section 1802 (quoted here) says that warrantless eavesdropping can be conducted for up to a year only on foreign powers, and that in order to do so, the attorney general would have to certify "in writing under oath" that "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

This doesn't mean surveillance against an "agent of a foreign power" can't be conducted; it simply means a warrant is required. And in the case of foreign powers, there's plenty of leeway -- as long as the attorney general is willing to be held accountable.

(For a vacation update, read on.)

Vacation lessons, continued:

Lesson #3: When shopping in markets where haggling is expected, laughing raucously at the first offer is a quick way to drive the price down.

Come on, 195 Malaysian Ringgits for a fake Louis Vitton? You've got to be kidding me. We finally agreed on the "happy price" of RM125 -- about $33. I probably could have gotten the guy to go a bit lower, but I admit my social conscience gets the better of me when I consider that 15 Ringgits is probably far more valuable to a Malaysian vendor than $4 is to me. (Example: $4 is not enough to take a cab even half a block in Washington, D.C.; RM15 will buy a taxi ride clear across Kuala Lumpur.)

By the way, I've got a new Kodak, so I can share those images that are difficult to describe and impossible to explain, like this one, taken in Kuala Lumpur's Masjid India neighborhood:

WOMEN ARE NOT THE FUTURE

This man's sign reads:

WOMEN ARE NOT THE FUTURE.
They are already there.

I listened to him for a while, but I still have no idea what that means. All I can tell you is that he was using a megaphone and an easel to explain it, and he was very emphatic. Any guesses?

By Emily Messner |  January 13, 2006; 6:42 AM ET  | Category:  Facts
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A Republican willing to be held accountable? That's good for a laugh.

Posted by: cynical ex-hippie | January 13, 2006 12:04 PM

In 1942, Christopher Dawson wrote in The Judgment of Nations: "As soon as men decide that all means are permitted to fight an evil, then their good becomes indistinguishable from the evil that they set out to destroy."

*Intrepid Liberal Journal*
http://www.intrepidliberaljournal.blogspot.com

Posted by: Intrepid Liberal | January 13, 2006 01:25 PM

Ms. Messner, what was the lyric reference yesterday? It seems to have eluded many of us.

Posted by: Flappy Bob | January 13, 2006 01:28 PM

I think Emily might have missed the mark in equating Plamadon and associates, homegrown Lefty traitors convicted partially on warrantless surveillance of bombing a CIA center, with foreign agents.

It's like equating domestic abortion clinic bomber Rudolf & supporters with the Islamoid foreign agents Atta & Co.

It does not compute.

Perhaps coconut curry chicken and balmy weather in exotic locales may have prevented a full reading of the SCOTUS decision. I think Emily is mixing up domestic bad apples with Islamoid Foreign Agent rotten oranges. Here are the relevant passages:

" The debate above explicitly indicates that nothing in 2511 (3) was intended to expand or to contract or to define whatever presidential surveillance powers existed in matters affecting the national security. If we could accept the Government's characterization of 2511 (3) as a congressionally prescribed exception to the general requirement of a warrant, it would be necessary to consider the question of whether the surveillance in this case came within the exception and, if so, whether the statutory exception was itself constitutionally valid. But viewing 2511 (3) as a congressional disclaimer and expression of neutrality, we hold that the statute is not the measure of the executive authority asserted in this case."

"The Government's petition for mandamus to require the District Court to vacate its order (Plandamon) was denied by the Court of Appeals. 444 F.2d 651 (CA6 1971). That court held that the Fourth Amendment barred warrantless electronic surveillance of domestic organizations even if at the direction of the President."

Byron White prefaces his concurring opinion with a summary of existing law:

"In addition, 2511 (3) provides that; "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."

Then White summarizes his concurring opinion.

" The answer, it seems to me, must turn on the affidavit of the Attorney General offered by the United States in opposition to defendants' motion to disclose surveillance records. It is apparent that there is nothing whatsoever in this affidavit suggesting that the surveillance was undertaken within the first branch of the 2511 (3) exception, that is, to protect against foreign attack, to gather foreign intelligence or to protect national security information. The sole assertion was that the monitoring at issue was employed to gather intelligence information "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government." App. 20. Neither can I conclude from this characterization that the wiretap employed here fell within the exception recognized by the second sentence of 2511 (3); for it utterly fails to assume responsibility for the judgment that Congress demanded: that the surveillance was necessary to prevent overthrow by force or other unlawful means or that there was any other clear and present danger to the structure or existence of the Government. The affidavit speaks only of attempts to attack or subvert; it makes no reference to force or unlawfulness; it articulates no conclusion that the attempts involved any clear and present danger to the existence or structure of the Government."

Chris Ford pontificates on the import of all this:

In other words (Plamadon) had nothing to do with agents of a foreign power, nothing to do with protection of intelligence directed against potential foreign threats, and nothing to do with a clear and present domestic danger threatening to overthrow the elected government.

Indeed, to start this ruling off, the SCOTUS, in Powell's lead opinion, made clear that they were not attempting to provoke a Constitutional crisis by grabbing Article II Powers for themselves:

"The issue before us is an important one for the people of our country and their Government. It involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval..........We think the language of 2511 (3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that:


"Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect against the dangers specified." At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers - among other things - to protection "against actual or potential attack or other hostile acts of a foreign power." ......Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.......We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe."

Chris Ford concludes -

Nothing in this SCOTUS decision intrudes on the President's Constitutional obligations to protect the nation and the Constitution by warrantless surveillance of foreign powers or agents of foreign power like possible Islamoid terrorists. The compulsion of certain Lefties to succor such enemies is noted, but Article II does not fall on such domestic enemies of America until they form a clear and present danger to the lawfully elected government of the people. Until then, the Plamodons and abortion clinic bombers and are safe from Article II and are under what laws Congress selects under Article III ----but future Mohammed Attas, Johnny Walker Lindhs are not.

Postscript - Larry (Pun) Plamondon forges on. He has re-imaged himself as a "respected tribal elder" of the Ottowa Tribe. He has his own website touting his book and "native ceremony" appearances...Unlike Ward Churchill, apparantly he is a real Native American.

http://punplamondon.com/

Posted by: Chris Ford | January 13, 2006 01:43 PM

Well, I agree with you for the most part, Chris Ford. Except for the import you draw from the case.

It is true that the Supreme Court avoided the Constitutional showdown in Plamondon (as they frequently do, trying to keep their opinions to as limited of a question as possible). However, the conclusion that they did not address the question of whether Congress could circumscribe the President's authority in this area is not the same thing as the Court saying that Congress CANNOT. Also, it is precisely because White's opinion did not mesh completely with the controlling majority that he wrote a concurrence which is just well-dressed up dicta.

The authority that Emily drew from in her proposition was FISA itself, which was passed six years AFTER the Court's opinion in Plamondon. Therefore, on the precise question which Emily is addressing, to what extent Congress could legislate on the power to spy on foreign agents, Plamondon says nothing. Zero. Zilch. Nada. Completely and utterly avoids the question.

Could the current Court now take up the question and void FISA? Possibly. But Plamondon itself does not dictate the result.

I am glad, however, that you recognize that the Executive is constrained by the U.S. Constitution in its power to spy upon its own citizens. We may be getting somewhere after all.

Posted by: Matthew | January 13, 2006 02:06 PM

"A Republican willing to be held accountable? That's good for a laugh.
"

Yeah, like expecting a hippie to have a job.

Posted by: | January 13, 2006 02:07 PM

Emily - "This doesn't mean surveillance against an "agent of a foreign power" can't be conducted; it simply means a warrant is required. And in the case of foreign powers, there's plenty of leeway -- as long as the attorney general is willing to be held accountable."

As outlined above, that is incorrect. As we are highly threatened by the Chinese espionage network stealing American military intel and stealing techology secrets to destroy more American jobs, I hope we are listening to our greatest strategic rival and it's agent minions here. Without a lawyer in robes determining "probable cause". And for threat to lives, other than the thermonuclear missiles equipped with American designs the Chinese stole from us now aimed at us, the biggest threat to our actual lives is from the "A Team" of Islamoid terrorists. That name came from Intelligence Chair Sen. Graham, who said they were far more intelligent, numerous, and dangerous than the "B Team", Al Qaeda.

Graham referred to the agents of Iran spread throughout the world.

They have heavy presence in the USA, including US citizens. I hope we are listening, then once we have ID'd Iranians, Iranian-Americans loyal to Iran or suspected of aiding them, as well as Shiite groups like Hezbollah that march as Iran directs - we then can get probable cause warrants from a lawyer. This is especially important as the conflict with Iran may come to military force.

While it will take another attack or two on Blue State areas for liberals to get serious, as opposed to Islamoid attacks on our military and embassies and foreign nations.....the rest of the country seems to be OK with the practice of listening first to detect enemy, then getting warrants if evidence is to be gathered to criminally prosecute after the Chinese or the Islamoid agent is smoked out.

Posted by: Chris Ford | January 13, 2006 02:44 PM

Chris Ford,

I'm struggling to find a point in the above post. Did you have one?

Posted by: Matthew | January 13, 2006 02:56 PM

Matthew - "I am glad, however, that you recognize that the Executive is constrained by the U.S. Constitution in its power to spy upon its own citizens."

The Executive is constrained up to a certain point against domestic security threats involving it's own citizens, Matthew, but when that crosses into a clear and present danger, Article II obligates the Executive to recognize the threat is now out of the Courts and Congress's perview and use full Article II powers to protect the citizenry and the Constitution.

And the unanimous SCOTUS decision Ex Parte Quirin holds the fact of American citizenry is no entitlement to protection against being designated as an agent of a foreign power and exempt from the 4th Amendment warrant requirement. Or that no protection exists as American citizens from Article II powers, and being taken out of right to access to Article III courts, if the American serves as an enemy combatant or otherwise gives aid and comfort to the enemy. (Military tribunals for US citizens caught working for the enemy. We executed a few in WWII.)

Posted by: Chris Ford | January 13, 2006 02:59 PM

Chris Ford,

You may want to read Ex Parte Quirin again. If anything, it is an affirmation of the Aricle I powers belonging to CONGRESS.

Posted by: Matthew | January 13, 2006 03:08 PM

Matthew, reread. The points are obvious.

1. Emily is wrong. We need no warrants to first be in place against specific individuals we have probable cause against when we are trying by counterespionage and counterterror, to identify them in the 1st place. No court has said a 4th Amendment Catch 22 exists. No court has challenged the Executives Article II powers to protect us from foreign powers or foreign agents.

2. We have a real strategic threat from Chinese agents. And to a lesser extent, agents of Russia, Israel, France, etc. out to gain stuff for their advantage at our loss.

3. Sen. Graham and others have identified Al Qaeda as the 2nd most dangerous network of Islamoid terrorists and agents, with the most potentially dangerous being the global network of Islamoids that Iran has working for it. So as the Europeans are beginning to admit all their appeals to human rights, international law, and diplomacy are failing with Iran - we best get ready for a new Islamoid threat, possible military conflict. When it rains, it pours. And unlike with the Al Qaeda menace, ID who their agents are within the USA and not once again leave our national security in the hands of Lefties and ACLU lawyers.

Posted by: Chris Ford | January 13, 2006 03:33 PM

Chris - again i think you overstate the threat to the US by the likes of Iran. Just like the president overstated the threat from Iraq.

If either country attacked us, we could turn it to a sea of radioactive glass.

neither country has though. we did attack Iraq twice, after supporting them against Iran, who's government we manipulated until Khomeini (sp?) ran his radical Muslim revolution. when did either country do anything substantive to us? what could Iran do - not pump oil our way?

they can't even threaten Israel credibly.

all the do is provide safe havens for nutcases - but we do that too, due to our freedoms. who's more dangerous to the other - Iran to US, or US to Iran?

I'd rather continue to dwell here in the US, confident that even the political left will keep our country secure.

Posted by: Mill_of_Mn | January 13, 2006 04:07 PM

"Chris - again i think you overstate the threat to the US by the likes of Iran. Just like the president overstated the threat from Iraq.
If either country attacked us, we could turn it into a sea of radioactive glass."

If it were only that easy Mill. I'm all for that action and it's a perfect way to save the lives of our troops. But, can't you just hear all the whining and crying coming from the Left after the US delivered such an "injustice." We will begin a "conflict" of some sort with Iran in the near future. It will be interesting to see how the Left turns that one around on Bush.

Posted by: Alex Ham - America's Hero | January 13, 2006 05:13 PM

Hey this liberal excrement is still being posted. Why don't you cry-baby libs give it a rest and let those of us with the stones to fight injustice, do so? Now forgive me while I hit the Head and drop a mean Democrat.

Posted by: The Real Lonemule | January 13, 2006 07:24 PM

Hm. The Lonemule certainly is a Realass.

It does not take "stones" to surrender your rights when asked. It takes stones to stand up to the system and tell it it's not doing so hot. It takes stones to adopt an unpopular position because you think it's the right thing to do. It takes stones to move to a country that is slanted against you to try to better your family. It takes stones to say this is not for me, but for my children.

You want stones? Read up on Martin Luther King. We remember him on Monday. You'll read about all the stones, figurative and literal, that you can stomach.

Posted by: Matthew | January 13, 2006 08:14 PM

Chris Ford,

You argue that the President's discretion to protect the nation from threats is absolute. Either this has always been true, and much of American legislation and jurisprudence exists only at the whim of the executive, or the threat is so radically new that the President requires new powers.

I personally think the idea that the threat of death is some new phenomenon is ludicrous. "Islamoids" do not have any realistic chance of destroying the nation or its government. The country has faced threats in the past, and it is an enormous disservice to those who gave their lives in past wars to somehow dismiss them as of lesser value. These arguments are rooted in fear. Sometimes you argue from this point of view, but mostly you support the idea that the President's Article II powers trump the rest of the constitution, just as you faithfully turn up Supreme Court quotes that support the Executive. (And ignore those that bind it.)

Down deep your arguments scare the hell out of me. You consistently argue for a nice strong unquestioned leader with the power to purge his enemies within to combat those enemies without. You readily label most if not all who don't agree as weaklings, "Lefties" and traitors. You accuse them of supporting enemy rights when they support the bill of rights.

This is called facism.

Posted by: Bullsmith | January 13, 2006 08:53 PM


A note to clarify. When I used the word 'facism' above, I meant it in a specific context and I should provide it.

I did not mean to say Chris Ford espouses Facism or is a facist. Nobody's suggested dropping elections or anything like that.

However,

Facism is at least partly defined for me by a few elements:

1. a concentration of all political power in a very,very small group of individuals who consider themselves above the law.

2. A state of permanent war and threat demanding unquestioning patriotism and support, the deep illegitimacy of outright dissent.

3. The Leader assuming a quasi-military role as the base of his authority, which grants him more power than a purely civilian leader.

Posted by: Bullsmith | January 13, 2006 09:17 PM

"This is called facism."

Always speak to the Lefties opponents character and motivation. Way to go, Bullsmith. It gets old listening to someone locked in a 40-year old timewarp.

Your argument that we don't need to watch for threats from foreign powers or agents - just as long as they don't have the power to level our whole country or completely annihilate & defeat us ---is incredibly insipid.

Your observation that the volunteer military, which is strongly in favor of being in Iraq and finishing the job despite the risks "are motivated so by being rooted in fear" and all the supporters of going after the Islamoids are "acting from fear" ---is similarly insipid thinking.

Article II grants unique powers to the President that are not subject to approval by other branches. Among those is watching for agents of foreign power who can harm American interests or lives, folks like Atta, who hoped to kill over 35,000 on 9/11. *Hint* - in past wars we were actively looking for enemy within...and pretty willing to kill some innocents so we could dispatch the enemy.

Those powers are not denied the President if the foe is not an existential threat.

Here's one for you, Bullsmith. We thought we tracked some Al Qaeda to a Pak village. We know the suspected Islamoids which may have included Ayman Al-Zawahiri, went into two houses full of women and children. Would you punch the button to send the hellfire missiles down knowing you might kill dozens? Would Kerry?

I would.

Posted by: Chris Ford | January 13, 2006 10:06 PM


Chris Ford,

You misquote and misrepresent my posts entirely. Do you do that deliberately?

Posted by: Bullsmith | January 13, 2006 10:14 PM

Of course he does.

Posted by: | January 13, 2006 10:40 PM

I'm completely with Justice Powell and Al Qaeda. It is essential that the US suspend its surveillance of foreign activists whether on American soil or in Iran. The appropriate agency for asserting the rights of the American people is the Boy Scouts. Or preferably the Girl Scouts, if you're an Al Qaeda martyr thinking of your rewards in Paradise. Better to be obliterated than to risk looking rough!

Posted by: Rick Clarke | January 13, 2006 11:17 PM

Chris Ford, (and to a lesser degree, Alex Ham):

You guys are are weak. Your arguments are are weak. All of them. In this thread and in the vast majority of your posts over the past several months. Weak.

I can't even figure out exactly what kind of society you want to live in. Your arguments seem fully anti-American - you seem to want to return to an "America" that has never existed, or that has existed only in your minds - as some nostalgic delusion of god, mom, and apple pie. Your twisted logic, half truths and fear of anyone not like yourselves speak volumes about your loyalties to core American values. You might not be foreign agents, but that doesn't mean you are loyal to your country (ideals, fellow citizens, the constitution).

America is the greatest country that has ever existed (using almost any criteria as a yardstick). This greatness was brought about by the "lefties" (a group that probably includes your grandparents - if they were US citizens during the early and mid 20th century), immigrants, Semitic peoples (Arabs and Jews), Catholics, blacks of unknown tribal or national origins in Africa, Hispanics, Italians, Japanese, Chinese (and lets not forget those damn Irish). There were Christians (not that that's a solid group), Jews, Muslims, atheists, communists, socialists, capitalists, and any other group you might wish to define, label, and include. These people - my fellow Americans, all - built this country from the ground up on the promise that they were free to be what they wanted to be.

Now you want to trash it all. Why? Because you're tough guys? (I'm not sure that's the reason, but y'all sure talk a tough game - logic, honesty, and/or consideration of your fellow citizens doesn't seem to play a part in your well-written and scholarly-sounding - but WEAK arguments). Please move to Myanmar - they seem to have the kind of government you are looking for.

The only thing worse than a clown, is a clown who wants to be taken seriously. You guys seem to fit that description.

By the way, I agree that Iran is the country to watch - they hate us (the ones that are here are generally pretty good folks - they're literate, liberal, and smart enough to get out of their country while the getting was good. Just the kind of perople we want to naturalize). The world would be crazy to let Iran have the bomb. I'd rather send them free electricity, if that's really what they want (and it isn't). On the down side, it was us, as usual, who planted, fertilized and husbanded the hatred they feel for us. Any other reading of the history that brought us to this point, or any other conclusion drawn from that reading would be intellectually dishonest (this is not meant as an invitation to try to rewrite the history of Iranian-American relations).

All of that said, stay the fuck away from my and my fellow American's freedoms (you and your sleazy, corruption-loving brethren) - plenty of blood was spilled to give them to us, and I won't give one crumb of them up without a fight.

One last point: If the government of the US were to return to the Dems, and your posts on this blog were viewed as "subversive" in their eyes, and the executive branch of that government felt that you were a "danger" to the citizenry (e.g., the government), and based on this questionable set of presumptions - I, along withmillions of other "liberal" Americans, would be appalled at the actions of that government, and would certainly come to your defense - regardless of my honest belief that you are disloyal and dangerous.

We don't let our government pull that kind of shit around here.

Posted by: Busta Spleen | January 13, 2006 11:33 PM

Rick Clarke

It is my primary duty as President to safeguard innocent Americans from the Amero-terrorists who kill over 12,000 fellow Americans every year, many of these innocents who were just trying to go to the bank machine, or buy wine for Communion, or go to the convience store to buy milk for the baby. These American terrorists have declared WAR on our innocent citizens, killing more than 12,000 Americans per year, that's TWELVE TIMES more Americans than the number of our precious soldiers who die in the fight on Islamic terror every year, and counting back to 9-11 its NINETEEN TIMES more Americans who have died from AMero-terrorists than Islamo-terrorists.

I cannot turn my back on this reign of terror right on our own streets. It is my primary duty to safeguard Americans. I hereby state that since Americans are dying from Amero-terrorists at NINETEEN TIMES the rate as Islamo terrorists, I declare the WAR on TERROR to be extended to Amero-terrorists as well as Islamo-terrorists. We must stop their attacks on our citizens so Americans can be safe in their own homes and streets again. .

I hereby declare that in addition to temporarily overriding the fourth Amendment, I also hereby invoke the WAR POWERS given to me by Article II of hte Constitution to also temporarily override the Second Amendment. Just until the reign of terror from Amero-terrorists is ended, American "freedom rangers" will inspect every house in America to collect the guns until Americans are free from fear and can walk in their streets again without fear. I call on all Americans to do their patriotic duty and help the freedom rangers. After all, they surely have nothing to hide....


Does it sound different to you when its t he SEcond Amendment instead of the Fourth?

Posted by: patriot 1957 | January 14, 2006 12:27 AM

The current great "Conservation" Rightist Government of our is now killing old men and ladies with their new drug benefits program, or should I say their new no-drug benefits program. Let me see now, they did a Heckuva job with Katrina. And they made a mess of Iraq by no employing enough troops or the right on the ground strategy. Yeap, don't let those Lefties back in power or we may have full employment and reasonable health care, no instead let the "Conservatives" (antispeak) start the world burning so they get all the power and money.

Posted by: Impeach Bush | January 14, 2006 07:21 AM

And the President warns his political opponents that to critize this Administration is to give comfort to the enemy?
What happened to America?
Impeach this guy. NOW.

Posted by: Impeach Bush | January 14, 2006 07:29 AM

Did you see how Alito could not sit up straight during the entire hearing.
Yeah, he was always leaning right.
Tee Hee!!!!

Posted by: Impeach Bush | January 14, 2006 07:32 AM

I have a great idea.
We should withdraw from Iraq but leave behind our own "insurgency", those Iraqs that truly want freedom and are loyal to American Ideas of freedom of religion and tolerance, to infultrate the Fundamentalist Islamic Government or FIG (allied with Iran) that will surely form in our absence. No security of the idea is necessary because by just planting the suggestion, the FIG and Iran will have to expend resources to defend against it whether or not it is real or not. Moreover, just the idea that we could do this will sow mistrust within their ranks.
Now they not us are facing the asymmetical threat.

Posted by: | January 14, 2006 09:21 AM

Is it fear that a more liberal (and I say so because there has been no radically liberal view posted on this site that I have yet seen) view of the state of things might make us more vulnerable to danger that causes some of the comments posted? Liberal thinking typically says: "I am going to try to listen to and ponder over the different illuminations of the affairs at hand. Perhaps in that way, I can reason out actions that will now and in the future result in a better world." Why is that such a scary idea?

Posted by: Jazzman | January 14, 2006 02:11 PM

Chris Ford,
"We know the suspected Islamoids which may have included Ayman Al-Zawahiri, went into two houses full of women and children. Would you punch the button to send the hellfire missiles down knowing you might kill dozens? Would Kerry?"

If some suspects went into two houses which contained your family, including your daughters and grandchildren, would you still punch the buttom? Or is the sacrifice which you are demanding only acceptable if it is others who are really paying it? What, really, strength of moral courage are you trying to exhibit by saying that you would slay dozens of otherwise innocent women and children? That you're willing to make the, "tough decisions"? Making the "tough decisions" is not a sacrifice. Losing your family... that is a sacrifice. Now please explain.

Re: the points you made earlier;
1. You're right. There is no current jurisprudence directly supporing Emily's point. There is, however, also no current jurisprudence saying that she is wrong, either. As I'm sure you've read by now, Ex Parte Quirin is an example of the Congress and the President acting together, not simply a ratification of Article II power, standing naked in the twilight (to paraphrase from Youngstown Steel).

2. & 3. We face strategic and military threats. Agreed. See, even, my missive on it in the other thread. Re: the military threats, other than pointing them out, what is your positive theory for it? What are you proposing as a result?

Posted by: Matthew | January 14, 2006 02:16 PM

And how would you feel about slaying your family only to find out that the person they died for was not among them?

http://www.cnn.com/2006/WORLD/meast/01/14/alqaeda.strike/index.html

Posted by: Matthew | January 14, 2006 02:59 PM

Jazzman, critical thought is always a danger to tyrranists. Because while we can still teach people to think there is still hope for a free society. Or as Adolf said "how fortunate it is for those in power that people do not think".

That's why when tyrranists begin to cultivate their power the first thing they do is initiate a campaign to discredit the "elites" and the "professors" and the "liberal academics". And then once they achieve full power they arrest them. End of problem.

And the neocons in this country have chimed in with their anti-"elite" campaign right on schedule.

Matthew, there are people who fight for a cause and people who are evil. I do not believe a pediatrician with a soul can kill innocent children (I'm not talking about "pulling the plug" on extraordinary medical machines). I must therefore conclude that al-Zahawari is evil or soulless, rather than merely a genius behind a cause.

Now whether or not a commander could launch a strike on innocent children to kill an evil soulless man depends on, dare I say, critical thinking.

The Chris Fords of the world believe we can crush Islamic terrorism in our fist if only we sqeeze hard enough, and collateral damage be damned. And for insurgencies involving limited geographic areas it has worked on occasion. When al Qaeda was relatively localized to Afghanistan and had lost the good opinion of the world after 9-11, we indeed had a chance to crush it. And indeed most Americans and most of the world supported our actions is Afghanistan. Had we finished the job there we might well have crushed al Qaeda and the Taliban with our mighty fist.

Instead of course we pulled our soldiers out to go to Iraq, pissed off the world, and built Osama a terrorist spewing machine of epic proportions. Al Qaeda evolved into a multi headed hydra and has regained widespread support. And now we have to figure out how to clean up the mess with an administration in charge that is afflicted with legendary incompetence. I'm gonna say a bad word now...

But when an insurgency is widespread and has a wide base of support and crosses many geographic boundaries, it is likely that, as paraphrased from Star Wars, the tighter you squeeze your fist the more star systems slip between your fingers. And that is where we are with al Qaeda now. We have tipped off the enemy to the limits of our military might - it appears a few thousand Davids armed with IED's can at least tie Goliath up in one place.

Military might alone isn't going to win this one. We need to win the PR war as well. We need the decent people of the Muslim world to stand up and demand the terrorist stop acting in their name. We've have had a bit of help, like terrorists bombing weddings. But we've also done a lot to make it much worse for ourselves, like us bombing weddings, hospitals, innocent children. And we really don't need Pakistan to kick us out, because we don't have the troops to go in against their will so without the trump card of invasion we need their goodwill.

So, if this was Afghanistan early in the war when we still had a chance to crush al Qaeda and there was no other way, I might have believed I was saving the lives of more innocents by launching the attack. But today, now that we've allowed al Qaeda to spread and decentralize and become a sympathetic figure around the world, its likely the attack would do more harm to the greater war effort that it would do good to see one evil man dead.

Posted by: patriot 1957 | January 14, 2006 03:20 PM

Bullsmith - If you make a generic charge that people support post 9/11 actions "only out of fear". Then if that broad charge is laid on the fear of the President, the fear of the majority in Congress, the fear of the soldiers in field, the fear of the general public - all who support going after the Islamoids..

It is instead up to you to deliniate on your broad brush which sections of America that support hunting down and killing, or otherwise protecting us from Islamoids.....

are fear-riddled souls.

Matthew: "If some suspects went into two houses which contained your family, including your daughters and grandchildren, would you still punch the buttom? Or is the sacrifice which you are demanding only acceptable if it is others who are really paying it? What, really, strength of moral courage are you trying to exhibit by saying that you would slay dozens of otherwise innocent women and children? That you're willing to make the, "tough decisions"? Making the "tough decisions" is not a sacrifice. Losing your family... that is a sacrifice. Now please explain."

Its pretty self-explainatory on you, and who you ultimately side with - instead, Matthew.

You seem to think war is a perfect, aneseptic process where every enemy civilian death (that you equate automatically to being on a moral par with us killing innocent "friendlies" in America ) is either a dire war crime or "negligent homicide by soldier" - to use a favorite Lefty descriptor.

The "how would you feel???" Lefty argument about various "outrages" of war would make a whole lot more sense if enemy sympathizers would somehow convince them to comply with Geneva and wear distinct uniform on the field of battle far from innocent civilians on either side.

But Islamoids don't fight that way.

They fight with family camps set up to succor them, which they retreat to at night, full of harems of women and children. They disguise themselves as civilians and hope that they can kill, but the foe can't shoot back.

Geneva recognized the perversion of checks on the evil of war they hoped to put in place by putting into law that the civilian casualties are legally on the side of combat that caused them by flouting the rules of war.

Not good enough for Leftist America-haters, of course, who piss their panties evrytime a "peaceful gathering of innocent enemy families with only a few Islamoid terrorist leaders present" - is bombed.

Posted by: | January 14, 2006 03:51 PM

Mr. Ford,

If you are an apologist for fascism, get used to being called one.

I'll take my chances with Al Queda over authoritarian fearmongers like you any day (and I live in a city in a blue state that's actually a plausible target).

Your ilk is destroying America in the name of protecting it. Please stop.

Posted by: Mr. X | January 14, 2006 09:50 PM


I never said anyone acted "only out of fear." I said arguments that the Terrorist threat is the greatest threat in the history of humanity are rooted in fear.

I also suggest that that the argument that those who suggest the President must submit himself oversight are weakinlings or traitors is an argument based in fear.

I suggest that there is no rational reason to trade concrete rights under law, much less those embedded so successfully in the Consitution, for safeties that are by definition secret. That is a trade made in fear. The same fear that declares that judges are the enemy, elected representatives are the enemy, and, of course, there is the nefarious Lefty.

And since I'm ranting let me add a thought that's been bugging me.

For those who like to reference the actions and powers of Lincoln or FDR in wartime- Who ran pictures of decorated war hero (multiple amputee kind of hero, in case anyone wants to swift boat his purple hearts) Max Cleland beside Osama and Saddam? Liberals?

Can you imagine that kind of disgusting smear during WWII? Cleland would have won by acclimation because his opponent would've been lynched.

Dissent is patriotic. America is the result of it.

Posted by: Bullsmith | January 14, 2006 10:44 PM


Please forgive the typos above. Written in haste.

Posted by: Bullsmith | January 14, 2006 10:46 PM

When it comes to people, I do not believe in rational thought. I believe the truth about people is found in imperical evidence such History. This is the gold standard because people cannot be objective about themselves and to be honest, a bunch that once believed in elves and the like are just not a rational bunch.
Therefore, I suggest everyone read "Trading with the Enemy" a book about how the Rightwing Fascists in this Country of ours supported Hitler. You will be surprised at the names you will read. They are many great Americans. They are still with us today.

Posted by: Impeach Bush | January 15, 2006 08:19 AM


The key to the future of world peace is to free your women.

Posted by: Impeach Bush | January 15, 2006 08:33 AM

>>"A Republican willing to be held accountable? That's good for a laugh.
"

>Yeah, like expecting a hippie to have a job.

Hmmm. The first is a legal/ethical argument while the second argues against the right of people not to work. My high school debate team would eat the second responder alive!

Posted by: Sully | January 15, 2006 10:41 AM

Chris Ford,

You still have yet to address the question of whether the executive has the exclusive right to define the scope of its Article II powers. You point out that Plamondon only speaks to the exec.'s dealings with domestic organizations, and you seem to think that in dealing with agents of foreign powers, it has a completely free hand, not just to act, but to define.

So, the question for you is this: under your understanding of the way executive power should function, what, if anything, would keep the executive from simply deciding (secretly, of course) that Plamondon et al. _were_ actually to be considered 'agents of a foreign power' (even if the executive knew they weren't really)?

I look forward to your response.

Posted by: Beren | January 15, 2006 10:42 AM

I found a link to the following story on Andrew Sullivan's blog. It's very relevant and very interesting.

http://www.reason.com/hod/js011306b.shtml

It's an interview with someone who did work at NSA and now has information he says he needs to tell Congress about. Andrew Sullivan's (justifiable) guess from the interview is basically that the reason FISA was bypassed was that what they wanted to do was turn Echelon inwards (i.e. use it domestically) and perhaps (because most of the info is processed by a computer) they thought they didn't need legal justification to do this.

Thoughts on the article?

Posted by: Beren | January 15, 2006 11:14 AM

I meant "empricial evidence such as History."

Empirical method is generally meant as the collection of a large amount of data on which to base a theory or derive a conclusion in science. It is part of the scientific method, but is often mistakenly assumed to be synonymous with the experimental method.

Posted by: Impeach Bush | January 15, 2006 11:31 AM

Just to encourage people to read the interview at http://www.reason.com/hod/js011306b.shtml
here are some excerpts (btw, the guy's a Republican who does believe in the importance of secrecy and voted for Bush):

+++++++++++++++++++++++++++++++++++++++++++

REASON: Do you see a shift in signals intelligence toward more intensive computer filtering, so there's more and more information processed, but less seen by human beings?

Tice: I've thought about this for a while, and as I said, I can't tell you how things are done, but I can foresee it, especially with what we've seen now. We're finding out that NSA conducted surveillance on U.S. citizens. And FISA could have been used but wasn't, was sidestepped. No one even made the attempt to see if they had a problem they could have fixed through FISA.

That would lead one to ask the question: "Why did they omit the FISA court?"

I would think one reason that is possible is that perhaps a system already existed that you could do this with, and all you had to do is change the venue. And if that's the case, and this system was a broad brush system, a vacuum cleaner that just sucks things up, this huge systematic approach to monitoring these calls, processing them, and filtering them--then ultimately a machine does 98.8 percent of your work. What you come out with from a haystack is a shoebox full of straw. Once you have that, you have people that can look at it.

[...]

REASON: What prompted you to step forward now?

Tice: Well, I've known this for a long time and I've kept my mouth shut...

REASON: You're referring to what James Risen calls "The Program," the NSA wiretaps that have been reported on?

Tice: No, I'm referring to what I need to tell Congress that no one knows yet, which is only tertiarily connected to what you know about now.

REASON: What aspect of that, within the parameters of what you're able to talk about, concerned you?

Tice: The lack of oversight, mainly--when a problem arose and I raised concerns, the total lack of concern that anyone could be held accountable for any illegality involved. And then these things are so deep black, the extremely sensitive programs that I was a specialist in, these things are so deep black that only a minute few people are cleared for these things. So even if you have a concern, it's things in many cases your own supervisor isn't cleared for. So you have literally nowhere to go.

[...]

REASON: Are you at all sympathetic to claims that the New York Times' reporting on NSA surveillance may have harmed national security?

Tice: In my case, there's no way the programs I want to talk to Congress about should be public ever, unless maybe in 200 years they want to declassify them. You should never learn about it; no one at the Times should ever learn about these things. But that same mechanism that allows you to have a program like this at an extremely high, sensitive classification level could also be used to mask illegality, like spying on Americans. And spying on Americans is illegal unless you go to a FISA court. It's the job of the FBI to conduct operations against Americans with the proper court warrants--not that I have a very high opinion of the FBI.

With [James Risen's] book, someone has come across, and basically reported, a crime. It just so happens that somebody put some super-duper clearances on it to mask the fact that a crime was being committed. Now we're claiming after the fact, to do some damage control, that "oh no, now the terrorists know." Come on, let's be rational about this. Do we think that the terrorists are just plain stupid? Do we think that, especially after 9/11, the terrorists aren't smart enough to think that maybe the United Statesmight be interested in the communications they conduct and how they conduct them? Even if you believe there's some negativity in that information coming out, which I think is a totally disingenuous claim, but even if you think there's some merit to that, when you weight it against the fact that you're breaking the constitutional rights of American citizens, the scale on the right side incredibly outweighs any claim on the other side.

[...]

REASON: Some polls suggest that most citizens aren't terribly concerned about these programs.

Tice: People think it's not going to affect them. They think it's against the bad people, it's to protect our national security. Maybe it's against the law, but it's just the bad people, just to keep the terrorist from blowing up my neighborhood dam. But if those people find out it was hundreds of thousands or millions, and they were swept up into it and the government was listening to their conversation with their doctor.... Now all of a sudden it affects them personally. Right now I don't think people see how it affects them. Though even if it were just these few thousand people that have been talked about, nonetheless it's wrong. There's no reason the two thousand warrants could not have been done through the FISA court. The question is: Why wasn't it done?

Posted by: Beren | January 15, 2006 11:32 AM

Bullsmith -

"I never said anyone acted "only out of fear." I said arguments that the Terrorist threat is the greatest threat in the history of humanity are rooted in fear."

I seemed to have missed that argument coming from any statement I've heard from officials, even the infamous neocons of yore. What they have said is that we face a major threat from Islamoids, and a far greater threat if Islamoids get and use WMD. If you are saying all acts of defense or self-preservation we make as individuals, families, or society are
"rooted in fear" as some broad philosophical point - seatbelts, woman locking doors and taking martial arts classes, a young man proudly joining the Marines - I leave you to a position most people disagree with.

"I also suggest that that the argument that those who suggest the President must submit himself oversight are weakinlings or traitors is an argument based in fear."

No, you strive to say the Executive is the only Branch that must be weakened and subject to oversight by new restrictions you advocate that are not in the Constitutional checks and balances. The Executive is accountable to the people, Congress where existing spheres of power require Congressional knowledge and assent. Your call for new oversight, the right of the other two branches to selectively check Presidential prerogatives on defense and war powers measures - obviously isn't matched by your calls for the Executive to use the FBI to collect oversight on all Supreme Court deliberations and Chamber meetings with Justices and share them with Congressional leadership. Or SCOTUS to walk onto the Senate Floor and "rule" on any budget matter they find "not Constitutionally optimal".

When you look, you see the people that seek to weaken the Executive are generally seeking to constrain Bush in only one area - dealing with the enemy threat - not his environmental policies, tax cuts, spending. No, the cry is only in the area of defense and national security. Which is why the people of this country distrust the Left so on their sincerity in defending American lives over their fetish for "precious enemy civil liberties". And it's all Leftys with the extreme libertarian fringe thrown in. And we know that the liberal Leftists of the Democratic Party were silent when the details of Echelon emerged in 1998. Indeed, their Lodestar, the NYTimes said in defense of Clinton, paraphrasing: "Few can doubt the necessity for America to have an active program to eavesdrop and hopefully detect the activities of foreign powers, drug rings, and terrorists."

Which shows the Left which didn't raise a peep about FDR and Truman's wiretapping and commie hunting, JFK & LBJs misuse of the FBI, or Clinton's sharing Echelon info with a few top Democratic donors - but railed on Republican McCarthy, Nixon, Reagan, and now Bush II for "being so mean to America's enemies" are basically partisans willing to weaken America for political gain.

Posted by: Chris Ford | January 15, 2006 11:41 AM

Beren:
I would propose that court approval for the Boolean logic search definition would be required. For example, if the were looking for "Bush" and "Impeach", I would not think that is Constitutional.

Posted by: Impeach Bush | January 15, 2006 11:46 AM

I sure hope Tice isn't planning any trips in the near future. People who say things like that out loud tend to have "accidents". You know, planes having "mechanical failure", "random" robberies gone wrong, "out of the blue" hit and run drivers while jogging. That sort of thing.

Posted by: patriot 1957 | January 15, 2006 11:53 AM

Chris Ford,

You write, inter alia:
=============================================
"Your call for new oversight, the right of the other two branches to selectively check Presidential prerogatives on defense and war powers measures - obviously isn't matched by your calls for the Executive to use the FBI to collect oversight on all Supreme Court deliberations and Chamber meetings with Justices and share them with Congressional leadership. Or SCOTUS to walk onto the Senate Floor and 'rule' on any budget matter they find 'not Constitutionally optimal'."
===========================================

Again (and I do mean again), the issue is not whether another branch gets to interfere in what is the executive's sole prerogative. The issue is whether the other branches have a right to participate in determining _whether_ a given issue really is an exclusive executive pregorative, or belongs to some other branch of government, or belongs to none. The executive does not have the exclusive right to define who is and who is not an agent of a foreign power. You do know this, really, I think. You can't honestly believe that the executive could just decide that all the residents of Kansas, or all the members of Congress, were all agents of a foreign power, and then treat them accordingly, can you?

This issue of domestic spying occurs on the boundary between one branch's authority and another's. This is because the executive does not have a right to spy on US citizens who are _not_ agents of a foreign power, without a warrant (deny this, if you can). Since domestic eavesdropping could be an instance of this, or could, on the other hand, be legitimate spying on real foreign agents, and we don't know which it is, until the facts have been determined, and we then know whether it falls under executive authority or not, it is an entirely suitable matter for the FISA court.

When there is a question of _whether_ a given issue falls under a given branch's authority, that _is_ a legitimate issue for the other branches, especially for the courts. And in the case of domestic spying, the question of whether or not the spying is covered by Article II or not depends upon the question of whether the people to be spied on are, or are likely to be, agents of a foreign power or not, which is what the FISC determines.

FISC does not usurp executive power. It does not tell the executive what to do. Once it has determined that a warrant is permitted, it doesn't micromanage the executive's use of the warrant, it doesn't participate in executive decisions about how to spy or eavesdrop. But the initial question is not how the executive should act, or what strategy it should adopt. The initial question is, "does the executive have the right to spy on this person, at all?" and the courts have every right to be involved in such a decision.

Posted by: Beren | January 15, 2006 12:31 PM

Chris Ford,

You also write:
=============================================
"When you look, you see the people that seek to weaken the Executive are generally seeking to constrain Bush in only one area - dealing with the enemy threat - not his environmental policies, tax cuts, spending."
=============================================

Err, surely you don't think that 'tax cuts' are also part of the President's Article II authority. Do you? You shouldn't really be surprised if you don't hear people calling for a weakening of executive power in levying taxes - it doesn't have any.

Later, you write:
===========================================
"Which shows the Left which didn't raise a peep about FDR and Truman's wiretapping and commie hunting, JFK & LBJs misuse of the FBI, or Clinton's sharing Echelon info with a few top Democratic donors - but railed on Republican McCarthy, Nixon, Reagan, and now Bush II for 'being so mean to America's enemies' are basically partisans willing to weaken America for political gain."
===========================================

Look, these are strawmen. It's not news to any of us that politics is partisan, or that each political party enjoys pointing out the mistakes of the other's members, while defending its own members.

But the fact that some people argue for (or against) policy x, and do so for partisan motives, has absolutely nothing to do with whether or not policy x is a good idea or a bad idea. You're right to point out that some people are only attacking this warrantless spying because it's being done by a Republican. It's also true that there are people who are only defending it because it's being done by a Republican. Once we've gotten past this revelation, we can discuss the real arguments about whether the program is legal, or justified, or wise. Because it's not just rabidly partisan Democrats who are criticizing this warrantless domestic spying.

You have real conservatives here on this blog making arguments, based in their own conservative political principles, that this warrantless domestic spying is illegal, and is a danger to our freedoms and our very system of government. Those arguments deserve to be taken seriously, not just dismissed as the ramblings of 'lefties' (especially when the people making said arguments aren't even 'lefties' anyway).

Posted by: Beren | January 15, 2006 12:51 PM


otherside123.blogspot.com
www.onlinejournal.com
www.takingaim.info

Did the NSA help Bush hack the vote?

By Bob Fitrakis
Online Journal Guest Writer
Jan 11, 2006, 02:26

What do we make of the president boldly proclaiming that he has "spy powers?" Does he have X-ray vision too?

When he and his cronies crawl up into Cheney's bunker with the sign on the door "He-man Woman-haters Club. No Girls Allowed (except Condi)," do they synchronize their spy decoder rings and decide what new absurd folly to unleash on the world?

Illegal invasion of Iraq, suspending writs of habeus corpus, secret CIA torture dungeons, or election rigging? Most people outgrow such childish games and fantasies by the time they're 10 years old. And by age 12, most understand that the president is not a king. Or a dictator. That U.S. citizens have inalienable rights.

That there are such things as search warrants. If the executive branch of government is going to conduct surveillance on the American people, they have to get a warrant from the judicial branch specifying what they're looking for and the reasons for the search.

The Bush administration's utter contempt for the U.S. Constitution and the specific information we now know about its use of the National Security Agency (NSA) surveillance network should further call into question Bush's 2004 presidential "election." In a recent revelation, we have learned that the NSA shared the fruits of its illegal spying on behalf of Bush with other government agencies.

What are e-voting machines and central tabulators that pass the voting results over electronic networks from the Internet to phone lines? No more than data easily spied on and tapped into. The Franklin County Board of Elections, for example, tells us that it was a "transmission error" in Gahanna Ward 1B, where 638 people cast votes and Bush, the Wonder Boy, received 4,258 votes. It's not magic, nor is it an accident or an act of God. If the vote total wasn't so hugely illogical, no one would have caught it.

Bush and his cabal are notorious for collecting raw intelligence data and using it for their political gain. While many progressives accept the fact that our government manufactured an illegal war in Iraq and routinely violates human rights worldwide, many are reluctant to accept that they would spy on John Kerry and rig the election -- which is very easy to do when the NSA does your bidding.

What part of the headline in the Columbus Dispatch: "Diebold vote machine can be hacked, test finds" don't people understand? The electronic hacking and monitoring of votes by U.S. intelligence agencies has a long history, from mainframe computers in the 70s and 80s to DREs in the 80s and 90s. In fact, W.'s father appears to be one of the first beneficiaries of e-voting fraud with his victory over Bob Dole in the 1988 New Hampshire primary.

Most voting rights advocates are well aware of Al Gore's infamous loss of 16,000 votes in the 2004 Florida presidential election, which allowed Bush's cousin at Fox News to call the election for Dubya. How do we explain the bizarre "rob georgia" Diebold file that Bev Harris of Black Box Voting found on the Internet after the stunning upset of Senator Max Cleland of Georgia.

The recent revelations about hacking of Diebold voting machines and the findings of the General Accountability Office as to the insecurity of the e-voting networks cannot be separated from the president's criminal use of the NSA to spy on American citizens. As much as we rejoice in the resignation of Diebold CEO Walden O'Dell and the pending lawsuits by shareholders against Diebold, it should not obscure the massive continued potential to hack the vote.

Both Popular Science and Popular Mechanics magazines ran November 2004 cover stories on how easy it is to hack the e-voting machines and their communication networks. In one famous cartoon, a teenage hacker was announced as the president.

This is precisely the type of game George W. and his He-man authoritarian boy's club would engage in. Recently, Professor Steve Freeman of the University of Pennsylvania spoke at a New York election reform forum and told the audience that a third of the Kerry voters who showed up in exit polls in rural Republican-dominated areas simply don't show up in the actual vote tally. Not just in Ohio, but throughout the nation.

Would a president who believes he has spy powers, the right to torture, the ability to wage illegal wars based on bogus, manufactured intelligence reports, simply refuse to spy on Kerry and rig an election electronically? In Ohio, two burglaries occurred against the Democratic Party in Lucas County and Franklin County, just prior to the 2004 election, involving computer theft.

Congress must investigate whether Bush used the NSA for partisan political gain during the 2004 election, and whether any NSA Bush operatives or other members of the security-industrial complex had access to e-voting machines, central tabulators or the communication lines that delivered the voting results.

Bob Fitrakis is the co-editor of Did George W. Bush Steal America's 2004 Election? with Harvey Wasserman and co-counsel with Cliff Arnebeck in the Alliance for Democracy suit against the Hocking County Board of Elections.

Copyright © 1998-2006 Online Journal
Email Online Journal Editor

Posted by: Che | January 15, 2006 12:52 PM

Sounds reasonable to me Che - your talking about a sorry excuse for a man who wore a transmitter taped to his back during the Presidential Debates.

Of course, since you chose that online name, wingnuts like Ford and SiliconDoc will feel free to ignore the facts you raise and call you a pinko commie, but that's really about all they've got in the face of the unmitigated disaster that is the stolen Bush II "Presidency"

And Mr. Ford, why on earth would I trust a flat earth creationist moron like Bush with unilateral power to determine who is an enemy or not when he can't get anything else right either (flowers and chocolates, fellow liberators?)

Posted by: Mr. X | January 15, 2006 01:10 PM

Oops, that "your" obviously should have been a "you're". Must get coffee....

Posted by: Mr. X | January 15, 2006 01:11 PM

Bush's flagrant violation of the FISA law is just another example not just of presidential abuse but of this administration's abyssmal ability to do anything right. Examples are many: preparing to invade Iraq, ignoring military advice as to the number of troops needed, the inability to occupy Iraq properly, not providing soldiers with proper equipment, the torture memo, the response of FEMA to Katrina, the inability to recognize the response to Katrina was bad, and on and on and on.

The Bush administration is simply BAD at doing anything right (he just recently said New orleans has shown tremendous improvment and you should bring your family there!). So when I hear that the ordering of the NSA to eavesdrop on American citizens without a warrant was because of the administration's academic readings of the Constitution, presidential powers, etc... it just makes me roll my eyes. There is no "thinking" ability in this administration. Like a child that has not matured, they hit instead of talking about differences. They boldly sneak and lie to get what they want regardless of law or the Constitution. They act like children and their immaturity is obvious. So I shake my head and wonder how long people are willing to believe this administration has anyone who got above a C in college and really understands our country, its great legacy of liberty under the Constitution, the Constitution itself or how to run a government. Their abuses are evidence of their simplistic approach to every problem with no forethought or fear of consequences. Someone should bend Bush over their knee and give him a good spanking while having him read the Constitution over and over again ... Barbara? Congress? The People?

Posted by: Sully | January 15, 2006 01:12 PM

As I pointed out in a comment previously (not in this thread), I am not a legal or Constitutional scholar. I am, however, a literary scholar of standing. Though flowery by today's standards of writing, the U. S. Constitution (document, not ship) is presented very much in what would have been the "lay" language; it is intended to be readable, and that it is. The creators of this document needed it to be understandable to their audience, particularly as its hope was in acceptance and ratification.
So let's look at being "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . .." Is there any question or issue of understanding of "persons", "houses", or "effects"? I don't think so either. Those will have essentially the same meanings as they did 225 years ago. That leaves the matter of "papers." In the time of Jefferson and Washington, letters, journals, diaries, notes, and books were the means of communication. Those and conversations were how humans exchanged ideas.
Because of the argumentative nature of some of our fellow writers here, "papers" won't pass muster as meant in the Amendment IV, so we might as well belabor it now. First, consider its presence in the list of things to be assured as secure: persons, houses, papers, and effects. It denotes things which people might possess, now and then. "Papers" is not simply thrown in, but along with the other items comprises the set of physical objects that engender reasonable privacy of person. Second, visualize that the "papers" in your possession are represented in not only the actual paper documents on your desk and elsewhere in your home, but your computer's hard drive, your flash memory, your laptop's drive and memory, your CD-roms, tapes, etc. In other words, "papers" in our time represent the same personal records as they did in the time of the Constitution's drafting and for the simple but eloquent "Bill of Rights."
So my reading (okay, so it's not "strict construction", but - as has been pointed out by others - the strict construction version has yet to be written) is that the founders intended, and it was ratified so in Congress - acting as the will of the people (that's us, for those who aren't sure) for each of us to have security for us and our stuff extending to our bodies and (I presume) our clothing, our houses (which probably includes an apartment for those who don't own), our papers (personal records), and effects (being other items of personal propertie). And what they meant was that no officers of government could show up without a sworn warrant to tear your place apart, or to search you or your premises in hope of finding "incriminating" evidence against you or parties of your acquaintance. It seems pretty reasonable.
Okay, so some are still resisting that to do other than in accord with this amendment violates a Constitutional restriction. It doesn't seem to them that "papers" covers telephone conversations or e-mails or blog comments or e-cards or "secure" purchases over the internet. They don't see how the federal government's using supercomputers to parse our every everyday actions on a broad scale (millions of citizens if not most) is gross violation of this 4th amending article to our Constitution. Nor does it seem to worry them that the kind of overstepping of this article as that with which we are now confronted has not seen so much as a blink of Congressional oversight, bypasses any effort to secure a reasonable warrant, and is an act taken unilaterally by Presidential executive order. It is precisely the kind of action the amendment was meant to prevent.
The founders looked to examples of government known in the civilized world of the time. Monarchies were the rule of the day. Kings and their deputies (dukes, earls, counts, judges, sheriffs, and the like) carried out actions against citizens of Europe without fear of recourse through "due process." A verbal promise of security was not enough, they realized, to protect individual rights on a systematic basis. So they wrote in good ink on good parchment the laws of the new country. They stated in clear and unambiguous language the structure of government, the requirements for and responsibilities of each office. They stated in the same language the protected rights of states and citizens. They said such things as "shall not be abridged" and noted guidelines for reasonable exception.
People today read such stories as Les Miserables or Tale of Two Cities and think oh, the author exaggerated to make a dramatic point. They weren't exaggerating; conditions in Europe of the day, spying on ordinary citizens, imprisonment on false accusations (often to obtain land or other property or to silence opposition to just such policies) were those that inspired the writers of our Constitution and the 10 amendments that followed. Through the freedoms granted in law, this country has had an unprecedented opportunity to build a unique place in history.
But the founders knew that it wasn't enough to start out with a set of laws. Ancient Greece and Rome gave sufficient example how over time power overwhelms finer points of law and that eventually, these democratic experiments succumbed to autocracy. The law-making bodies withdrew from their responsibilities - ceded power to the executive, as it were - and began a decline from greatness. The Constitution does its best to ensure three co-equal branches of government, to divide responsibility and power, and to give the people a meaningful voice and power through the legislative branch.
It seems to me that some, even commenters here on this blog, would give even more power to executive in hope that a "decisive" executive figure will scare all enemies, foreign and domestic. I have seen footage of that same "decisive" figure in a grade-school classroom in Florida waiting for an advisor to tell him what to do after airplanes had crashed into the Pentagon and World Trade Towers. I have seen that "decisive" figure appear days after floodwaters of one of history's most destructive storms had devastated a vast area of our country and nearly wiped out one of the land's largest cities. Some maintian their confidence in this figure because they will not look at his weaknesses. That is their right.
But there is the matter of truth. Of truth in any issue, there is only one. Truth is not a matter of opinion. It is how something is. We have a war-nation-building in Iraq brought on because of imminent danger from that country's weapons of mass destruction. That wasn't truth. We have a war on terror that isn't a war. We have lower taxes for the wealthiest that is supposed to be raising the economy and doesn't. And we have assumed executive powers for this self-same "decisive" figure to appropriate authority that is not justified because people are made afraid by his assertions that danger from enemies is close at hand.
We have the words of our Constitution and its ratified amendments, we have the power of the vote to elect representation in one third of the government, and we have our own heads with which to understand our rights and obligations. We will get what we deserve. If we use our abilities to effect good and balanced government, we need fear no enemies. If we give in to pressures to put our safety in the hands of a powerful executive (no matter how seemingly well-intentioned) we take a risk on which history has not smiled in the past. In the U. S., our strength has generally been a populace that cannot be fooled for long. But when the stakes are high, as they are now, it is all the more important to keep our eyes on the prize.
The prize is our freedom, our amazing way of life, protected by an uncannily farsighted document called the Constitution.
(And if you haven't been paying attention, the Senate, our supposed voice in government, is about to elect to the Supreme Court a skilled lawyer who has little concern for the meaning of individual Constitutional rights. While he may seek to follow the "letter" of the law, he has no regard for its spirit. That should bother you a lot.)

Posted by: Jazzman | January 15, 2006 01:24 PM

Beren - "

You still have yet to address the question of whether the executive has the exclusive right to define the scope of its Article II powers. You point out that Plamondon only speaks to the exec.'s dealings with domestic organizations, and you seem to think that in dealing with agents of foreign powers, it has a completely free hand, not just to act, but to define."

Congress regulates the conduct of national security organizations and personnel by laws regulating their conduct, while preserving to the Exec his Article II powers to monitor and act on Foreign powers or their agents here and to act on domestic threats that rise to a level of insurrection that threatens the lawfully elected government of the people. So the check is all the lawyers and staff that know the laws application covers Islamoids, Islamoid agents of a foreign power US citizens indulging in a little treason or not - and how the Authorization of Force amplifies those powers - while they know that those Article II powers do not cover spying on political opponents or dissident groups Outside Article II, and they are outside the law and accountable if they violate the law. And Congress further checks the Executive through the tradition of select Leadership being consulted on all measures and ultimately through the power of the purse.

The Court cases are complex, but generally give the Executive wide latitude. Three Presidents have "pushed back" on the lawyers in robes in war matters and refused to obey rulings they felt encroached on their Article II war powers. Andrew Jackson, Lincoln, and FDR. Jackson and Lincoln directly defied the Court, FDR threatened the court that he would disregard the Court if it crossed him on his Executive Orders. All held the Court an equal branch, but not above the Executive or Congress.

"So, the question for you is this: under your understanding of the way executive power should function, what, if anything, would keep the executive from simply deciding (secretly, of course) that Plamondon et al. _were_ actually to be considered 'agents of a foreign power' (even if the executive knew they weren't really)?"

Refer to my above discussion of checks and balances. It is very hard to involve thousands of Executive staff in a "secret conspiracy" to violate Article II power and extend power to prosecute foe past legitimate foreign-based threats to the American people or matters of insurrection that rise to a threat to the duly elected government of the people. Those staff who did face discovery in a town of a 1000 leaks. Despite their protestations, the "loyal opposition" at leadership levels knows exactly what the Exec is doing - their "Shocked! Shocked! And Ever So Concerned!" public squealing to the contrary. And the repercussions for using intel organs to enrich, suppress political foes not working as foreign agents - is high for these Executive staffers - financial ruin, jail, disbarments, etc.

"I look forward to your response."

You have it.

And I will add that the real problem the Left has is their mindset that there is a slipperly slope that they must defend enemy rights and liberties because if they don't side with the enemy, somehow, the Exec or Congress will cross all sorts of lines drawn for the sheer hell of it and oppress - sequentially, first the open enemy sympathizers here, then Bush-haters, and finally Republican soccer Moms as the Dark Night of Fascism covers our land. And add brainless slogans like "liberties lost are forever lost" despite all of American history showing not only do certain constraints end as hostilities end, and not only does liberty rebound, but liberties are frequently extended.

And add the Lefty mindset that the people can't be trusted to monitor and vote on war prosecution because they are stupid and ill-informed and easily misled, the Congress can't, and a non-Democrat Exec is pure evil.....so all defense and war matters should be decided on by their favorite people - an unelected media and activist judges..And the midset that even foreign agents like Mohammed Atta have a "right" to be left alone "unless they commit a crime" and that war is really a police action to apprehend a few misguided "criminals" and show them our moral superiority via our magnificent Courts. (Which accounts for the fetish that finding the single evil Mastermind who has led a miniscule number of the Religion of Peace astray will somehow end the struggle once Islamoids see our judges in action against Binnie).

Now Beren, it would be one thing if Lefties were a loyal opposition, saying Iraq was the wrong move, something many centrists and even conservatives said before we went in, even more after the global intelligence failure and Bush bungling, and making suggestions for how we can better confront this murderous Islamoid ideology, but the Left doesn't. I could respect them if they said we need to train hundreds of thousands of Americans in critical foreign language skills we lack now to better communicate with and understand the Muslims, we need to work on the issues that vex every Muslim - like final ME Borders, justice for both the ethnically cleansed Palestinians and the retaliatory cleansing of Jews from the Ummah. That we need to have meetings and summits to finally define what terrorism is and get Muslims to agree not to tolerate it or encourage it anymore than the rest of the world does.

But the pattern has been the Left offers no solutions other than saying Islamoids are a pure product of faults in the West and the West must fix the "root causes" that caused the "just grievances" that cause Islamoids to kill.

Along the way, they oppose reflexively everything we are trying to do to fight the Islamoids. No interrogations of terrorists at Gitmo without an ACLU lawyer present, the "horrible imprisonment conditions" they suffer (the average con in a stateside US prison would give his left nut to be transferred to Gitmo), the "civil liberties deprevations suffered", the dread "Koran abuse" - and how US soldiers "aren't punished enough". The only soldiers the Left loves are dead and wounded ones they can add to their pet "death and casualties" lists so they can cry false tears and say no cause is worth the life of a single such uniformed fool - misguided so into hapless victimhood by the lying Bush-Hitler. Patriot Act? Bad if it infringes on Islamoid "rights". And lets line our Lefty lawyers up to beg to defend and detected and apprehended "Islamoid enemy within". Poor Hamdi! Poor Padilla! Poor little Sniperboy Malvo! Eavesdrop on Islamoids? Oh, the horrors! Attack Islamoids - No! No! You can accidentally kill innocent wives and kids of Al Qaeda members, poor little Talibani babies. Innocent Fallujans! Besides, every Leftie "knows" the more enemy you kill, the more you create!! It's obvious!

It's just adding more basis to the argument that liberal Democrats can never be trusted to defend America from our enemies.

Posted by: Chris Ford | January 15, 2006 01:41 PM

(he just recently said New orleans has shown tremendous improvment and you should bring your family there!

I have heard he was only shown neighborhoods that weren't severely devastated to begin with. Anyone have any more info on this?

Posted by: patriot 1957 | January 15, 2006 02:10 PM

Ford,

I'm not nearly as worried about the rights of those you have decided are our enemies (like, say those "innocent wives and kids of Al Queada member" as if you can prove that's true in any way shape or form) as I am about the effect that abrogating their "rights" does on our rights.

But Bush has to spy on the Quakers and PETA to protect us from Al Queda, right?

Sorry pal, you're still a (longwinded) apologist for fascism. A good German by any other name....

Posted by: Mr. X | January 15, 2006 02:20 PM

The liberal Democrat Franklin Roosevelt defended this country from two much larger threats not only to the American people but also to the American way of life, in 3 and a half years. Another liberal Democrat, John Kennedy, stared the Soviets down over missles in Cuba. And Bill Clinton, though I don't consider him a "liberal" Democrat, prevented the tyrannical leader of Serbia from killing innocents and expanding his tyrrany. And lets not forget who decided we needed to stop North Korea from taking over South Korea.

Lets see, what have the those conservative republicans done to protect America from threats? Reagan wanted to spend the US into bankrupcy via "Star Wars" which we still do not have, not that anyone thought it was realistic. Reagan and Rumsfeld backed Saddam, enough said there. Bush 2 violated civil liberties by eavesdropping on Americans to catch Islamic spies and is spending us into debt much like Reagan but doesn't even have a real plan behind it. Hoover took America into the depression and could have cared less for the suffering it was causing. Nixon, well, enough said. Ford, well, enough said. Bush 1 and Eisenhower are the only two republican presidents I think actually did a decent job of acting as American presidents in the recent past.

The "liberals" I can think of as bad were Carter and Johnson. Carter simply did not do a good job and brought in poor performers to head his cabinet, much like Bush 2. Johnson made mistake after mistake and didn't know how to get out of his own mistakes, but he was from Texas so its understandable. Nothing good has ever come out of Texas... :^}

Overall, I'll take a liberal democrat over a conservative republican because, in the end, liberal democrats take governing seriously. They respect the Constitution and the laws of the land more than conservative republicans, one of whom recently called the Constitution a "god-damned piece of paper". Liberal Democrats also want America to remain America and not turn into something that violates its own Constitution, as todays conservative republicans openly advocate.

Posted by: Sully | January 15, 2006 02:26 PM

Chris Ford,

I wish I had more time to reply. But a few comments before I do.

The first half of your post seems to make the argument that the executive does have the exclusive authority to define the scope of its own powers, but if it abuses them, someone will leak the information and it will be found out, and if it defines the powers too widely, Congress will step in.

But both of those things happened, and you don't seem to like them. First, the information that the law was being broken was leaked to the NYTimes and you (I believe - or was SiliconDoc alone in taking the position?) said that the leak should not have occurred and should be punished.

And when Congress saw that the executive had defined its powers too broadly, and was abusing its Consitutional prerogatives it, well, passed the FISA law. The FISA law _was_ Congress's response to executive overreach.

The second half of your argument is a long list of complaints against "the Left", some of them justified, some of them less so (when you list the sort of suggestions that a loyal opposition should be offering, you list a lot of suggestions that people on the "Left" _have_ been making). But the Left could be a whole bunch of evil, brainless lunatics and that still wouldn't be relevant to this warrantless domestic spying. As I said, there are conservatives who vehemently oppose this warrantless domestic spying. Some of them have been posting on this blog. The arguments against endangering our civil liberties by un-overseen warrantless domestic spying do not depend on leftist political principles.

I understand you may be very angry at 'lefties', and your posts make much more sense to me since you mentioned (if I remember correctly) that you live in a 'blue state'. The majority in any area are often the side from which one hears the most thoughtless arguments, since they're less accustomed to having to defend their positions. But really, the flaws of 'lefties' or 'righties' have nothing to do with whether we should be practicing un-overseen warrantless domestic spying on US citizens.

Posted by: Beren | January 15, 2006 02:55 PM

Beren - "This is because the executive does not have a right to spy on US citizens who are _not_ agents of a foreign power, without a warrant (deny this, if you can)."

I support the Constitutional right of the Executive to attempt to FIND agents of the enemy without probable cause warrant because otherwise you have a Catch-22 introduced. You don't know until you look so as to get probable cause, but if you tie a prohibition on looking to probable cause knowledge, you are barred from looking, and the Attas are safe to proceed. What I support is the current practice of making NSA intel inadmissable for criminal prosecution of US citizens and any penalties are tied to a process that begins with a warrant, be the almighty judge a rubberstamp or not. That is what the NSA wants too. No way they want an ACLU lawyer sympathetic to the enemy forcing disclosure of sources and methods in open court where an Al Qaeda agent is either in covert attendence in the court or has a Lefty lawyer getting the transcript out to their agents here.

"Since domestic eavesdropping could be an instance of this, or could, on the other hand, be legitimate spying on real foreign agents, and we don't know which it is, until the facts have been determined, and we then know whether it falls under executive authority or not, it is an entirely suitable matter for the FISA court."

Not if the almighty (to Lefties) FISA court interferes with the Exec's constitutional duty to protect the American people from foreign powers or agents of foreign powers by insisting that Presidential power is blocked by "probable cause". Every President since even the weakling Carter has said FISA will not hinder discharge of Presidential Constitutional duty.

And of course "innocent Americans" will be scrutinized.

1. The echelon filters may snag a conversation from a virologist here talking to a Russian colleague in Volgograd about Ebola DNA, and then a human or two in Homeland Security may check to ensure the virologist is legit. No harm, no foul. The Brits did this all the time with MI-5 without warrants with no harm to UK liberties, which are robust. Now after we destroyed the "Wall" FISA encouraged the likes of Gorelick to set up, we can listen for enemy here and abroad more easily to PREVENT terror, not "treat it like a crime".

2. We may get a tip from Egyptian intelligence that 2 students here are suspected Islamoids, and the intelligence community only shares on the basis that their tips must not be revealed in court. And certain FISA judges until 9/11 and some Lefties Clinton appointed even after 9/11 have ruled that foreign intelligence community tips lack legal standing and do not count towards "probable cause". If the Egyptians are sleepers, like their Islamoid brother Mohammed Atta was, or the US citizens in Lackawana were - the options are to use Article II to monitor them as foreign agents, or not to monitor and wait and see if they kill lots of us.

3. Even if the target is a bad guy - say Abdul the Arab is a terrorist - in monitoring him, we do the same sort of warrantless surveillance on completely innocent parties, many American citizens completely innocent of "evildoing" as the family of a Mob Goomba monitored or the families and friends of a drug distribution gang. Abdul's innocent wife Fatima, who we don't know is innocent until we listen to a long pattern of her conversations, or his born in the USA kids Shahid and Jihad Jill who use the same phone(s).

4. Modern communications mean we have no way of discerning who is a US citizen or not. Secure ID establishing name and citizenship is not legally obligated to be tied to phone calls, nor should it be, IMHO. The caller in Pakistan asking if the "special cake for Congress is ready to bake" may be a US citizen by accidental de facto birth here, his recipient has a phone bought in the USA, a USA number, but may be in Canada until more inquiry is done. Or "cake" may be the Pakistani-American's private code for boffing babes on the side, an American Islamoid terrorist using "cake" as code for bomb, or may be a purely innocent Italian-American guy the Pak-American in Karachi knew from college who is baking a cake for a Chuck Schumer fundraiser.

We don't know until we look. And no one pretends any judge but a blind rubberstamp would say a cake-baking call rises to probable cause without diluting what probable cause means in other search warrant cases.

The more I think about FISA, the more I think it was an exceptionally dumb idea - one of the last gasps of the Leftys back when they still had power in the post-Watergate era prior to Reagan - that not only gravely harmed and interfered with our abilities to stop 9/11 --but is still unconstitutional, a massively expensive needless layer of "mother may I" judicial meddling in national security affairs adding value only to lawyer's bank accounts. And still usurping Presidential prerogative. Even after the Patriot Act tried to fix the worst of the vulnerabilities FISA inflicted on national security intelligence and law enforcement.

We're long overdue for another major Islamoid attack on the West. Many are now diverted over the last 3 years into Iraq and have taken a big, lethal beating, but eventually they will give up in Iraq and attempt to get to Western targets - or some sleeper cell already in place will be overlooked and hit us. The Exec should be free to launch counterintel on suspected enemy, foreign agents with traditional Congressional oversight by the bipartisan leadership - and I think the next Islamoid attack will further limit FISA to only issuing warrants if criminal charges and criminal cases are to be developed against targets we have surveilled w/o warrant and determined to be in fact enemy, or agents of an enemy of America.

Posted by: Chris Ford | January 15, 2006 02:56 PM

Chris Ford,

There is so much pollution in your posts above it's difficult to find something to debate. I'm certainly not going to get into it with you on some sort of war against Marxism that you've been apparently been carrying on, uninterrupted, for the past 40 years.

I will, however, pull out one statement which is on topic for this thread.

"Congress regulates the conduct of national security organizations and personnel by laws regulating their conduct, while preserving to the Exec his Article II powers to monitor and act on Foreign powers or their agents here and to act on domestic threats that rise to a level of insurrection that threatens the lawfully elected government of the people. So the check is all the lawyers and staff that know the laws application covers Islamoids, Islamoid agents of a foreign power US citizens indulging in a little treason or not - and how the Authorization of Force amplifies those powers - while they know that those Article II powers do not cover spying on political opponents or dissident groups Outside Article II, and they are outside the law and accountable if they violate the law. And Congress further checks the Executive through the tradition of select Leadership being consulted on all measures and ultimately through the power of the purse."

OK. It's pretty much settled that whatever "amplification" the AUF provided, it is being used far beyond its intended application. The AUF was a specific authorization against the groups behind the attacks on the World Trade Center, not some blank check against anyone who may share a ideology of general dislike of America.

Second, the Exec has attempted in every means fashionable to limit Congressional oversight. They have shown contempt for the Congress which their party controls. They limit briefings and intel while accusing the Democrats of playing partisan politics whenever they do seek to exercise meaningful oversight. Remember the bifurcated intel hearings?

Third, you can't seriously be suggesting that the president's own attorneys provide meaningful oversight over him. They act as advocates to find some possible basis of interpretation to give him the result that he wants. They do not act as an impartial observer. That is the role of the judiciary. And I realize that it really sticks in your craw that the role of the Judiciary is to decide the extent of the power of the other branches. But that's simply the way that it works. Sorry. Nothing we can do about it. If it makes you feel any better, the Legislature checks the extent of the Court's supervision via Article III directly. (There's a great Findlaw article by Dorf on it. http://writ.news.findlaw.com/dorf/20051121.html) And Congress exercises oversight on the President by their Article II powers, are you mentioned. It's just that the Executive branch is relatively weak when dealing with the others: it enacts what Congress passes, essentially.

Fourth, you rail against the media and the judiciary. Is it because the judiciary is the only branch which is not demostratably controlled by the right? And the media has no role in the government at all? Face it: the Republicans are running the country. The braying of playing the underdog, fighting against the establishment and overwhelming power, is quaint and a bit ridiculous.

Posted by: Matthew | January 15, 2006 03:50 PM

Chris Ford,

There is so much pollution in your posts above it's difficult to find something to debate. I'm certainly not going to get into it with you on some sort of war against Marxism that you've been apparently been carrying on, uninterrupted, for the past 40 years.

I will, however, pull out one statement which is on topic for this thread.

"Congress regulates the conduct of national security organizations and personnel by laws regulating their conduct, while preserving to the Exec his Article II powers to monitor and act on Foreign powers or their agents here and to act on domestic threats that rise to a level of insurrection that threatens the lawfully elected government of the people. So the check is all the lawyers and staff that know the laws application covers Islamoids, Islamoid agents of a foreign power US citizens indulging in a little treason or not - and how the Authorization of Force amplifies those powers - while they know that those Article II powers do not cover spying on political opponents or dissident groups Outside Article II, and they are outside the law and accountable if they violate the law. And Congress further checks the Executive through the tradition of select Leadership being consulted on all measures and ultimately through the power of the purse."

OK. It's pretty much settled that whatever "amplification" the AUF provided, it is being used far beyond its intended application. The AUF was a specific authorization against the groups behind the attacks on the World Trade Center, not some blank check against anyone who may share a ideology of general dislike of America.

Second, the Exec has attempted in every means fashionable to limit Congressional oversight. They have shown contempt for the Congress which their party controls. They limit briefings and intel while accusing the Democrats of playing partisan politics whenever they do seek to exercise meaningful oversight. Remember the bifurcated intel hearings?

Third, you can't seriously be suggesting that the president's own attorneys provide meaningful oversight over him. They act as advocates to find some possible basis of interpretation to give him the result that he wants. They do not act as an impartial observer. That is the role of the judiciary. And I realize that it really sticks in your craw that the role of the Judiciary is to decide the extent of the power of the other branches. But that's simply the way that it works. Sorry. Nothing we can do about it. If it makes you feel any better, the Legislature checks the extent of the Court's supervision via Article III directly. (There's a great Findlaw article by Dorf on it. http://writ.news.findlaw.com/dorf/20051121.html) And Congress exercises oversight on the President by their Article II powers, are you mentioned. It's just that the Executive branch is relatively weak when dealing with the others: it enacts what Congress passes, essentially.

Fourth, you rail against the media and the judiciary. Is it because the judiciary is the only branch which is not demostratably controlled by the right? And the media has no role in the government at all? Face it: the Republicans are running the country. The braying of playing the underdog, fighting against the establishment and overwhelming power, is quaint and a bit ridiculous.

Posted by: Matthew | January 15, 2006 03:50 PM

OT, but I had to get back to Bullsmith on his piece of crappy Democrat mythology, the "poor Max Cleland lost his war-hero entitled Senate seat because Republicans impugned his patriotism".

Cleland lost his limbs in a military accident. He dropped a grenade he hadn't "safed" - after drinking a bunch of beers - and picked it up. "Ka-Blam!". Happens thousands of times in war. And in peace. Soldiers die or get maimed - not by the enemy, but accidents. About 1/3rd of the dead and injured in Iraq are from accidents, not enemy.

Now, "poor Max" has parlayed the fact of his disabilities and by his admirable will to be in public life, into both public service and some very desirable positions. Lately he got through Bush, at Daschle's urging, one of those rare, unbelievable plum patronage jobs he doesn't even bother to show up for months at a time - 130,000 a year supergrade and superperked director of the Import-Export Bank. (attendance by "directors" is not open to public scrutiny by the rules Congress set to ensure unqualified politicians lodged there aren't embarasssed)

But Cleland lost his Senate seat by being far to the Left of his Georgia constituency and doing somethings in hindsight that all but guaranteed his defeat and it occured in large part because Cleland had begun to think that he was a Victim, entitled by Victimhood to the Unlimited Moral authority to do as he politically pleased for whatever sp[ecial interest group that dropped by - and keep his Senate seat as his just due for dropping a grenade on himself 35+ years ago. The same sort of stuff the Lefties are trying to pull with "Blessed Mother Sheehan" who, alone among the thousands of relatives of dead soldiers, is somehow imbued in absolute moral authority from her "unique Victimhood and suffering" that somehow sets her above all other parents, siblings, wives, and children - not to mention the thousands of wounded GIs - to talk "convincingly" about Zionist plots and murdering Presidents and heroic Iraqi Freedom Fighters...

What Cleland ACTUALLY did that lost his seat in 2002 and the post-election bitterness and antics that blocked him from any subsequent shot at Zell Miller's seat:

1. Voted against the ban on partial birth abortion, voted against parental notification.
2. Voted against a range of military programs based in Georgia.
3. Was thought to be weak enough on national security that the Georgia VFW decided to endorse Chambliss over him.
4. Was part of the Democratic group that sought to punish the Boy Scouts for not being gay-friendly enough.
5. Was active back in 2000 calling Bush a coward and a draft-dodger and got in trouble for saying Reservists as a whole were draft dodgers and when slammed by Georgia reservists for that, responded that they were "questioning my patriotism", a Cleland comeback used also in the Boy Scout vote, the Homeland Security vote, and on his votes to defund military programs in Georgia.

*The Atlanta Journal-Constitution noted in June of 2002 that "this 'how-dare-you-attack-my-patriotism' ploy, replete with feigned outrage...is a device to put Cleland's voting records off-limits." It didn't work.*

6. With the Homeland Security vote, Cleland crossed the co-sponsor, Zell Miller, his fellow Senator and helped demoralize the Georgia Democrats supporting Millers efforts. Miller warned Cleland he was damaging other Georgia democratic candidates with his pro-union, anti-Bush opposition. Cleland said he owed the unions more than he owed local Dems, setting off the serious internal feud between Miller and Cleland factions.

7. Before Chambliss ran his ad, he told Cleland it was coming, and it would say Cleland was choosing union favortism over the nation's safety. But the ad wouldn't run until the last Homeland Security vote was taken, so Cleland could always side with Bush and Miller. (And so Chambliss obviously wouldn't look bad if the ad ran and Cleland switched his vote at the last minute) Cleland thought his "war hero" status would keep his seat and he owed the unions for their contributions, so he dug his heels in.

*He was wrong!*

Georgia voters LOVE military service! It is a huge plus in elective office races. But it is not the unlimited entitlement
that Cleland thought it was. It helped get him in office, but after that, performance matters - and then he began betraying the Georgia voters by his actions. When he drifted into the Blue State liberal Democrat camp and dissed Georgia voters values and programs, he was bound to be chucked out of office and not invited back by the Georgia Democratic Party for subsequent races. And Cleland's "Band of Brothers" antics with Kerry put nails on his political coffin unless Dems win office again once his cushy patronage apoointment expires.

Posted by: | January 15, 2006 04:58 PM


Whatever you think of Max Cleland, are you seriously suggesting it was legitimate to link him to Osama bin Laden? To Saddam Hussein?

Nice attack on yet another wounded veteran, Mr. support-the-troops, whoever you are, but my question remains unanswered. How do you defend that ad?

Posted by: Bullsmith | January 15, 2006 07:19 PM

The only people that post on this thing are:

A. C- students who like putting forth opinions that are not fact-checked
B. Federal Employees who take time out from surfing the internet for new porn sites while at work to post "I hate George Bush" notes
C. Gender confused pseudo scholars that believe this equates with being "published"
D. Greedy old folks that just learned how to use a computer at the local seniors' center and now wish to bash the guy they believe may cost them a nickel of their precious Social Security!!

Oh...Or...ALL OF THE ABOVE...

This thing STINKS!!!!!!!!!

Posted by: The Real Lonemule | January 15, 2006 07:28 PM

Well, I know I'm none of the above, so which one are you Mule (my money is on A)?

Posted by: Mr. X | January 15, 2006 08:31 PM

Wow the old lonemule really hates America.

-He hates federal employees, like the military and the staffers of the republican White House, House and Senate, not to mention astronauts, the FBI, the CIA, and the CDC which he'll be looking to when he catches bird flu.

-He hates old Americans because they take social security though they paid into it, probably fought in Americans past wars and supported America all these years with their tax dollars, making the America he lives in today.

-He hates the educated. Well the uneducated usually do so this indicates a lot about the lonemule.

-He hates C-students. According to transcripts, in prep school, Bush's grade point average (GPA) -- as they were evaluated 40 years ago -- was a slightly-below average 72. Bush finished his first semester with a very average GPA of 75. Bush buckled down and things picked up the next semester -- when he ended the year with a GPA of 75.8. Bush's grades picked up in his middle years of college, earning himself a GPA of 80 -- but he coasted through pass/fail classes through his senior year, graduating Yale as an extremely average "C" student.

Lonemule also hates a real argument it seems and would rather make up what his opponent is, then attack the opponent based on his made-up fantasy. What he does not understand is that insulting people does not change anyones mind except their view of the insulter.

Congratulations, you've made my CHE list, not based on your positions, but based on your inability to argue like a gentleman.

Posted by: Sully | January 15, 2006 08:41 PM

Bullsmith -

The correct terminology is "injured" or "disabled" Vet since the enemy had nothing to do with inflicting a wound on him. The commercial that ran, contrary to Dem mythology, never challenged his patriotism, just his (then 10) votes for constraining union rules being imposed on security personnel - against going after (Saddam and Osama pictures) with maximum flexibility.

Cleland is toast in Georgia. Toast by his behavior and votes. Not because people in Georgia got fooled. Not to worry about Max, though, even if he does lose his no-show patronage job. He can parlay his victimhood for ample money on the Hollywood donor circuit.

Matthew -

You're just another pedantic twit that lacks the acumen to determine what is or is not pollution, much less attempt to call it in other's posts. But you do a fine job of showing your lack of knowledge of both the Constitution and post 9/11 matters.

Matthew tries though:

"The AUF was a specific authorization against the groups behind the attacks on the World Trade Center, not some blank check against anyone who may share a ideology of general dislike of America."


The Joint 2001 Resolution starts thusly:

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:

Certain Lefty lawyers have tried getting their pet Gitmo Islamoids off the hook on grounds they "weren't one of the 20 or so with direct involvement or knowledge of 9/11, therefore not subject to the Joint Resolution." And Lefties have loved this theory, (right, Matthew??) along with their notion that Afghanistan and Iraq are "not real wars". Unfortunately for the defenders of enemy civil liberties, both the President in speeches to the People, and Congress, in subsequent Bills, Matthew, have defined the enemy in broader terms, as "international terrorism and nations that facilitate them". Not just the ~20 behind the 9/11 plot.

"They have shown contempt for the Congress which their party controls."

No, Matthew, they have shown contempt for some in Congress that deserve contempt, but in the inept fashion of the Bushies, and with some undue arrogance.

"Third, you can't seriously be suggesting that the president's own attorneys provide meaningful oversight over him."

You really don't understand the Executive and the bureaucracies that work under it. Every agency has internal controls, advisory lawyers, inspector generals to protect their asses from political appointees that would cross legal lines. You presume an Executive structure where thousands of Democrat appointees and political liberals at places like Justice, the FBI, the NSA were somehow magically subverted into Bush boot lickers willing to break laws.

"And I realize that it really sticks in your craw that the role of the Judiciary is to decide the extent of the power of the other branches."

Just as it probably sticks in your craw when someone mentions you are profoundly lacking education on how the Constitution sets up equal branches of the Federal Gov't where no branch limits the power and responsibilities of the two others, or the matters left to the States.

"It's just that the Executive branch is relatively weak when dealing with the others: it enacts what Congress passes, essentially."

In your dreams. Besides the whole deal with the collapse of the Articles of Confederation over the lack of a strong executive before the Constitution created one, Matthew, something I doubt you ever read about....for some strange reason, the country cares more about what the President is up to than the Speaker of the House or President Pro Tem of the Senate. Perhance that might have a tad to do with Constitutionally and modern state driven relative power and influence, ey, Matthew??
Your theory that the President is a reflexive lackey-boy of Congress's bidding may have something to do with how the Lefty acolytes wish the world could be, rather than the world as it is.

"Fourth, you rail against the media and the judiciary. Is it because the judiciary is the only branch which is not demostratably controlled by the right?"

No, it's the only Federal branch where enemy sympathizers and enemy "civil liberties" defenders still have liberal activist lawyers that think they can use to bypass the democratic process of the American people. The media allies the Left and the Islamoids are doing a fine job of self-destructing on their own.

Posted by: Chris Ford | January 15, 2006 10:45 PM

Reading this blog is like watching an old Bruce Lee flick. "Enter the Partisans". Conservative Chris Ford confronts multiple cliche wielding, liberal assailants and leaves them all bleeding in the street. In this show the boss (Emily) got taken out in the first scene, which made for bad theater. Two thumbs down, way down.

Posted by: Ebert and Roper | January 16, 2006 01:19 AM

Beren,
I've been away. Doesn't look like I've missed too much new, but its nice to see so much substance in Chris Ford's latest postings.

About Tice ... (I followed your link and read it all --- Thank you).

I was frankly disappointed. His general discussion of the technical aspects of the operations to which he seems to be referring displays a very uninformed and rather naïve level of actual knowledge of computers and software. I can't make sense of the following language:
"It's going to cost you a lot of money and you're going to have to buy some big computers and other equipment, bit synchronizers and that sort of thing, monitoring error rates.
You have to be careful to overdo it, because if you overdo the situation, you'll saturate your bit error rate."

The terms "bit synchronizers" and "bit error rate" in this context are entirely beyond comprehension. Bit error rate has to do with bit level transmission errors (usually corrected) in really low-level hardware like computer channels or busses, network coax cables, satellite channels, multiplexors, modems, digital television signals, and so on. It simply has no bearing on the later analysis of the data transmitted. When you get into "bit synchronization" your typically talking about the electrical behavior of a single integrated circuit, a silicon chip, which is generating or receiving a transmission signal. What it tells me is that whatever his real job was, it was pretty far removed from the technical side of this program. Of course I'm entirely removed from that; but that won't stop this fool from rushing in to conjecture anyhow.

What appears to be "vacuumed" up would be three different forms of communications originally embedded in mixed digital streams, i.e. telephone messages, fax messages, and email messages. Each of these uses different encoding/packaging methods, so your first level of processing is to restore them into their original digital file form. In the case of a telcon this would become a digital file much like you would find on a music CD. In the case of a fax, it would actually become a fax image file. In the case of an email it would actually become a complex file packaged to be processed by standard email software and would or could include layout and formatting instructions, text, images, and attachments of various kinds.

Second Level Processing
An email would be the easiest to process. Your first step is to determine what language is being used. The header information in an email file tells you what text character set your looking at (Russian, Chinese, Spanish, Arabic, English, etc.). That narrows down the set of languages to be considered. Then you would pick out a few words and look them up in dictionaries of target languages. Highest score wins and you now think you know what language is being used. If it is English and your keyword Boolean expression search instruction(s), (you could be given a bunch of them), is also in English then you would execute the search(s) to see if there is a match or matches. Otherwise, you first have to translate the text from its actual language to English, or you have to translate the keyword Boolean expression from English to the actual language before you can execute the search(s) to see if there is a match or matches. Language translation software keeps improving but its not yet perfect so that is one problem child. Even the crudest of text encryption techniques defeats this process so that is another problem child.

Next easiest would be a fax. The first step is to extract any text from the fax image. If the text is typed, this is the easiest. There is optical character recognition software that will do this job on a digital image file. Of course you still don't know the character set or language being used so you need OCR software that works on all character sets. But once a text character file has been extracted from the fax it would be processed in much the same way as an email above. If the text is handwritten then you have a much more difficult problem, as OCR software which can deal successfully with that is in its infancy; much less when you consider the potential of multiple character sets and languages. This is not even at the fetus stage across the globe. So I would expect that any fax that didn't contain printed text would probably have to be printed for some human eyes to filter further. I don't know what the volume of those would be, but I imagine it would be pretty high.

Now we come to the set of telcon messages. These are really nasty because computers don't really hear, or see for that matter. All they really do is compare one set of numbers to another. If I type "jihad" and you type "jihad" (using the same English character set and spelling of course), the digital representation in each case will be identical. Now if I say "jihad" and you say "jihad" the digital representation in each case will be very different. This is because our voices are different, as well as our accents, the speed with which we speak, and the machinery which is used to record the sounds we make into digital form. Voice recognition software is coming along, but at a much slower pace than we hoped for a few years ago. Think about the particular difficulties in this application. Before you can begin translating voice to text you have to know what language you are dealing with, since that tells you the character set you must translate the sounds into as text words. This alone is a huge hurdle since you really have to take account of not just primary languages, but all kinds of dialects as well. If you get past that, you still have to get past any kind of background music or noise that messes up most voice recognition systems, and you have to be able to translate all languages. I seriously doubt that the NSA is processing the content of telephone conversations with at best anything more than really crude and simplified keyword type searches. If they do, it is probably comparing the analog waveforms of words in the telcon to an analog dictionary of keyword waveforms in various languages. Anything selected this way would then have to be listened to by a human who spoke the language inherent in the waveform that caused the selection. It is always possible that they have made unimaginable progress in this area by the generous application of unimaginable funds, but progressive leaps forward haven't really been the norm when it comes to software projects and the government. I'm reasonably confident of my doubts here.

My own personal assessment about "data mining content" would be that email traffic has the most potential, faxes have some, and telephone conversations are really tough digging and likely a fool's errand. But I could be wrong.

Anyway, now that the machines have done what they can, Tice goes on...........
"What you come out with from a haystack is a shoebox full of straw. Once you have that, you have people that can look at it.
Now here's an interesting question: If this approach was used, and hundreds of thousands if not millions of communications were processed in that manner, and then if and when the truth ever came out, a lawyer--and I think lawyers are going to be arguing semantics in this case--the argument could be made, well, if a machine was doing the looking and the sucking in, it doesn't matter because that's not monitoring until a human looks at it."
This is actually a very interesting point. What would happen if you did not actually look at or listen to the material, as the case might be, but instead took the computer's conclusion (and the external/internal basis of it) to the FISA Court and requested a warrant on this basis? Is this computer search and conclusion in and of itself a violation of the 4th amendment, of FISA? If not, is this information sufficient to satisfy the 4th Amendment requirement of "reasonable" in order to issue a warrant. I don't know. But, if there is actually demonstrable merit to this sort of program, I would certainly agree that the administration would have a perfectly valid case to argue here.

Then we get this dialogue.........
"REASON: What prompted you to step forward now?
Tice: Well, I've known this for a long time and I've kept my mouth shut...
REASON: You're referring to what James Risen calls "The Program," the NSA wiretaps that have been reported on?
Tice: No, I'm referring to what I need to tell Congress that no one knows yet, which is only tertiarily connected to what you know about now."

Whaaaaaaaaaat? Apparently there exists some other IED about to explode somewhere; but where? God only knows, I sure don't. Of course I must wonder why he drops it into this interview at this particular time.

Finally.........
"REASON: So there's a problem of inadequate channels of communications to raise concerns?
Tice: Yeah, zero channels of communication because you're talking about information so closely held that even within a large organization like the Agency, only a handful of people may know. The director would know, maybe the deputy director, the chief of security, maybe one level-supervisor, maybe my own supervisor--and these are all management people. And then you have one person, me, the worker bee who does the work, writes the reports, goes into the field, does the liaison work, makes the phone calls. I was the nitty-gritty detail guy."
I don't claim to know, but this job description sounds like he is a guy who follows up on folks the computer has pointed its hairy finger at. Probably liaises with the FBI and points them in the appropriate investigative direction without saying why. Could get dicey for him if this found its way into a criminal court and the FBI got caught developing some tainted probable cause in that context. Would the NSA then throw him to the wolves? Probably.
NYT claims a lot more sources than this one and I hope that is true. Based on this particular interview I think Tice is probably too far from the center of things to directly testify about the details of the program in it's broad scope. Now that I think about it, I wonder if his IED is positioned by the FBI's driveway. He did say earlier that he didn't like the FBI much.
I will say that the marriage of government and technology does get a bit frightening. Disk drive production last year went up by 20% and it was only expected to go up 15%. Now I've got to wonder if the NSA took the extra 5%. If I put on my government hat, there is a whole lot of merit in just storing all of these messages, for years even. Lets say I finally get enough together to get a search warrant on Joe Smuck. Not only can I now listen in to his current communications, I can go back and listen in on his prior communications. Or can I? What a tool this would be for putting together conspiracy cases of all kinds. All it takes is lots and lots of disk space, and this has become ridiculously cheap. I remember paying $25,000 for 25Megabytes; today I can buy 100 Gigabytes for $100. I haven't actually figured it out yet, but it just may now be technically feasible to store all international communications traffic across our borders for multiple years. If so, that would have tremendous investigative value following any terrorist event in quickly rolling up and convicting the support network for it.

Maintaining our traditional civil liberties is not going to get easier. It will continue to be a very tough row to hoe.

Those are my thoughts Beren.

Posted by: Cayambe | January 16, 2006 04:09 AM

IMHO Chris Ford is nothing but a propaganda scribe; his mission: to put so much alice and wonderland-like text so that real precise comments pointing out the problems with the Administration's positions are lost. And you Mr Roper are nothing but a shill. We are wise to such fascist tag teams.

Posted by: Turn Off the TV | January 16, 2006 06:44 AM

IMHO Chris Ford is nothing but a propaganda scribe; his mission: to put so much alice and wonderland-like text so that real precise comments pointing out the problems with the Administration's positions are lost. And you Mr Roper are nothing but a shill. We are wise to such fascist tag teams.

Posted by: Turn Off the TV | January 16, 2006 06:44 AM

To the neocon-loving, fact-twisting, America-haing posters to this blog (you, and we know who you are):

America was founded, nurtured, and became great as a reult of liberal ideology. More importantly, arguably, is the fact that liberal thought has resulted in the great strides forward our country (and the world) has witnessed and benefitted from during our (and all of recorded) history.

If it wasn't for liberal ideology, you wouldn't be allowed to post here.

Don't think so?

Look it up and then try to argue it down.

Your posts are generally well written, but your arguments are specious. It seems that you all suffer from a serious emotional problems (I can see no other explanation for the hatred of the true nature of our country - "hate" being emotionally, not mentally or logically driven).

For this reason, I choose not to refer to you all as morons - you're just plain sick (maybe evil - but then, that's a moral judgement - I won't go there, either).

Please get some help before you get your way and we all live to regret it. In the alternative, go to an authoritarian, right-wing dictatiorship where you'll be happy.

Leave America and let us be free.

Now that's a win-win situation.

Posted by: smafdy | January 16, 2006 07:38 AM

The Republican party became a national party through President Abraham Lincoln. Leadership of that party has since gone deplorably downhill. It would serve conservatives well to look back upon the values of Lincoln for the founding ideals of republicanism as it was then meant. It seems to me that today the party looks to the public to take on the basest human desires and motivations, cloaked even then in shrouds of misdirection and false piety. That is a long march from the hope of Lincoln that Americans would seek to live up to the highest measure of their inner nobility.
What is the difference from 1860 to 2006? Most notably, the realization that Lincoln's approach demands something given of each citizen who strives as he suggested. Today's approach demands that each person abdicate responsibility to "wise men (well, persons)" who would be "our government."
Well go back and read "The Gettysburg Address." Republicanism comes from that expressed root. Are you trying to tell me that to forget my individual rights and trust in the President accords with those written sentiments? That my civic duty to elect representation that truly mirrors my concerns and desires (for example, populist democrats or conservationist independents) is supporting a "lefty" (and supposedly therefore stupid) lie?
The Declaration of Independence, The Constitution, and the 27 amendments are not just a string of laws. They constitute an idea of life; they combine to generate a set of ideals and standards. They are premised on the interaction of a society of intelligent, free-thinking men and women who are both aware of their history and their unique promise. Success at our founding and now relies upon our ability to be aware of the universe, to look not only to today's issues but to their meaning in the future as far as we can see it.
So looking ahead, let's figure out how the "war on terror" will go. There are those who hold no world-stage political recognition (or leverage). They want to be noticed, have their say, show some power. How can they do that? Well they can hook up with some semi-sympathetic faith practitioners who give their ideology some apparent footing and build an organization around that "hook." For it is just a hook; Islam is no more "terroristic" than any other religion. It was convenient for it's world-wide presence, the fact that it has at least two major branches, and that within the branches many, many varied regional practices. Suffice to say, it was there and ripe for exploitation (as have been other religions in the past). So there's the hook, an ax to grind, and means.
The means is what is scary, isn't it? Fanatical self-destruction! Certain death for a "cause." Yes, that part is frightening in its own way. But the truly scary part is that the secretive leaders of this kind of terror-based political struggle are not nation-based. All past military conflicts have been based on territory (as this one is) but under recognized political control. In this case, there is no parent nation or alliance of nations to be "the enemy."
Now get back to looking at how this can play out. There is no place to aim at and destroy or blockade or force to yield at gunpoint. And is their aim to take over, to destabilize into failure, or to so distract as to make possible other more open national-political actions elsewhere? In this regard, what do we actually know? And what method of counteraction will encompass a defeat?
Admittedly, these are questions to which I have not the full set of answers. But does anyone? These questions are not discussed in this blog, because there's too much invective and accusation being hurled back and forth to open the discussions of real matters. Here are some hints: in order to get someone to blow themselves up, you have to be spreading a lie. At what point can that lie be exposed and the "cannon fodder" supply be cut off? In order to grow and sustain an "army" of terrorists, there have to be connections. How can honest nations locate and disassemble the connections? Having the appropriate trust and support of other nations to ensure effective real intelligence collection and sharing is one need. Knowing how to quickly and accurately use the intelligence (and I don't mean mis-directed bombings as over the weekend) is another.
If we want to combat terror, we need to be a nation free of self-deceit. Our democracy must be as true as we can make it or we shall have self-defeating weaknesses. In other words, we have to live true to the ideals, the principles of the democracy our founders and saviors (see Lincoln, above, for one or, if you prefer F. D. Rooseveldt discussed in other threads). Only then will we have enough clarity to put together an effective movement to curtail this threat. At least, that's how I see it.

Posted by: Jazzman | January 16, 2006 11:44 AM

Things are going good for Impeaching Bush and getting rid of the Repugnants. I do my own little polls. The guys at the swimming pool all think it is silly to have to protect against box cutters. Get it? Americans aren't afraid anymore.

Posted by: Impeach Bush | January 16, 2006 12:31 PM

Serious questions remain concerning Col. Westhusing's "suicide" in Iraq. Army's chief ethics expert was murdered, according to Carlyle Group insider.

According an informed source within The Carlyle Group business consortium, Col. Ted Westhusing, the Army's top military ethicist and professor at West Point, did not commit suicide in a Baghdad trailer in June 2005 as was widely reported in the mainstream media five months later. At the time of his death, Westhusing was investigating contract violations and human rights abuses by US Investigations Services (USIS), formerly a federal agency, the Office of Federal Investigations (OFI), which operated under the Office of Personnel Management (OPM).

Posted by: | January 16, 2006 12:34 PM

If you're going to list GWB's grades please note that the "Scholarly" John Kerry had grades below that of GWB's.
Final Cummalitve score our Yale: GWB - 77,
Kerry - 76.

So if Bush is an imbecile, what would that make Kerry?

http://www.boston.com/news/nation/washington/articles/2005/06/07/yale_grades_portray_kerry_as_a_lackluster_student?mode=PF
http://www.townhall.com/opinion/columns/larryelder/2005/06/23/154707.html

Posted by: KTC | January 16, 2006 12:39 PM

Mr. Bush is no imbecile. A liar and a cheat maybe, but no imbecile.

Posted by: Impeach Bush | January 16, 2006 12:57 PM

Chris Ford,

Knock it off with the 'pedantic twit' comments. Matthew's no twit. As for pedantic, well, if by that you mean that he pays close attention to the specific details and meaning of laws, we could use more of that in dicussions of laws.

Perhaps you felt attacked by his reference to 'pollution' in your posts? But I think he was referring to the parts where you launch slashing attacks on caricatured 'lefties', Vietnam war protestors, ACLU lawyers, and so on. (Btw, you never did answer my question about why you referred, in one of those passages to "ACLU _Jewish_ lawyers".) In those sections you attack all sorts of positions that no one (as far as I've seen) on this blog actually holds ('we shouldn't spy on any Islamoids', 'every Islamoid should have access to an ACLU lawyer', etc.) And since no one here actually holds those positions, and they have nothing to do with the serious arguments pro and con this warrantless domestic spying, they are tangential, and clutter up the other, interesting, points that you are making.

You cite Matthew's comment that the AUF was a specific authorization against the groups and people behind 9-11 and those who harbored them. But he is right about that. You reply, to refute him:
===========================================
"The Joint 2001 Resolution starts thusly:

'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:'"
===========================================

Yes, but those are all in the preamble. I welcome correction by those who know their law better than I, but I always thought the the statements in the preamble were not, themselves, enactments or resolutions. They may be used to determine the meaning of a law, if the language of a law is genuinely vague, but they cannot overturn the plain meaning of the 'resolution' or 'enactment' section of resolution or act. They give Congress an opportunity to grandstand, or to make clear what their purpose was in passing the law, either for their constituents, of for future legal analysis, or, thinking back to the atmosphere right after 9-11 when the AUF was passed, because they want to express their outrage at a vicious attack. But they do not themselves have independent legal force.

So you cannot take those sections that you quoted, and use them to alter the plain meaning of the actual resolution. And that states, with my own emphasis added, "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_.

In fact the administration specifically asked for wider authority, and Congress specifically decided not to include it in the resolution.

Moreover, even just looking at the preamble, what you cited as the beginning of the text is not actually the beginning. The first clause after the title reads, "Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and"

In all the clauses that you quote, "such acts" refers back to this clause, i.e., it refers to the 9-11 attacks.

Finally, even the very title of the resolution makes clear that it is directed at those responsible for 9-11. The title, with my emphasis added, is, "To authorize the use of United States Armed Forces _against those responsible for the recent attacks launched against the United States._"

So as far as the text of the AUF is concerned, Matthew is right, and you haven't refuted him. But you do go on to make additional supporting points. You write:

===========================================
"Unfortunately for the defenders of enemy civil liberties, both the President in speeches to the People, and Congress, in subsequent Bills, Matthew, have defined the enemy in broader terms, as 'international terrorism and nations that facilitate them'. Not just the ~20 behind the 9/11 plot."
===========================================

Now, what the President does in his speeches is utterly irrelevant, as I think you know. If he has the authority to spy on any US citizen without a warrant, then he has that authority whether or not he gives a speech to explain it. On the other hand, if he doesn't have that authority, he can't give it to himself by giving a speech.

But your second argument is potentially stronger. Has Congress, in subsequent bills, defined the enemy in broader terms? I don't know. Could you cite any particular resolutions or acts in which Congress has done this? I'd be interested to see them. There would still be the question of whether that definition of the enemy, for other purposes in other enactments, could be retroactively applied to the AUF, without something like a new AUF. But still, it would be interesting to see those laws. Can you cite any? (Btw, we're still all waiting to hear from you what those eight cases were that you mentioned but wouldn't cite in the earlier thread. They're still quite relevant, and they'd help your argument, if they exist.)

Posted by: Beren | January 16, 2006 12:58 PM

"Another Lefty trait that makes them distinct from conservatives is their tendency, even here, to make their rebuttals personal...to always...as Lenin and later Marcuse counseled, to speak to motive and the character deficiencies o the person they disagree with."
-Chris Ford

"Matthew -
You're just another pedantic twit"

As you say, Comrade Ford. But let's look at the facts behind your assertions. I know, you hate to cloud your truth with facts, but let's just give it a whirl.

"The Joint 2001 Resolution starts thusly:

Whereas ...
Whereas ...
Whereas ...
Whereas ..."

Quoting only the whereas clauses in analyzing a statute is like doing a book report based off of the, "About the Author" section before the novel begins. The Joint 2001 Resolution then CONCLUDES and AUTHORIZES:

"Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled ... (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."

Chris Ford says:
"Certain Lefty lawyers have tried getting their pet Gitmo Islamoids off the hook on grounds they 'weren't one of the 20 or so with direct involvement or knowledge of 9/11, therefore not subject to the Joint Resolution.'"

A reasonable person would not conclude that only those 20 people are involved, and thus covered by the AUF. However, a reasonable person would not also conclude that "radical Islam" or "people who want to hurt America" falls under the, "nations, organizations, or persons" who, "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001" clauses. The AUF is only a prospective authorization insofar as it authorizes the President to pursue those, "nations, organizations, or person" who were involved in that attack from enacting another one. That's it. Plain English. Don't need a lawyer to explain it.

But Chris Ford continues:
"And Lefties have loved this theory, (right, Matthew??) along with their notion that Afghanistan and Iraq are 'not real wars'. Unfortunately for the defenders of enemy civil liberties, both the President in speeches to the People, and Congress, in subsequent Bills, Matthew, have defined the enemy in broader terms, as 'international terrorism and nations that facilitate them'. Not just the ~20 behind the 9/11 plot."

The President is powerless to amend the AUF as it was never his to begin with. If CONGRESS wants to amend the Authorization which they authorizes, then they can. But they haven't. You say Congress has changed it in subsequent bills... well, I think this is going to be another, "8 cases" instance, Chris, because those bills do not exist. Or if they do, tell me what they are. Or better yet, tell Atty. General Gonzalez. Because he's still citing to the 2001 AUF as his primary source of authority in carrying out the President's directives. So please, enlighten us both.

I said:
"Third, you can't seriously be suggesting that the president's own attorneys provide meaningful oversight over him."

Chris Ford enlightenly followed:
"You really don't understand the Executive and the bureaucracies that work under it. Every agency has internal controls, advisory lawyers, inspector generals to protect their asses from political appointees that would cross legal lines. You presume an Executive structure where thousands of Democrat appointees and political liberals at places like Justice, the FBI, the NSA were somehow magically subverted into Bush boot lickers willing to break laws."

I presume as much, Chris, because that is what is reported.
In the DOJ: http://www.washingtonpost.com/wp-dyn/content/article/2005/12/01/AR2005120101927_pf.html
At PBS: http://www.broadcastingcable.com/article/CA6283818.html?display=Breaking+News
At the EPA: http://www.washingtonmonthly.com/features/2001/0207.schaeffer.html

But more directly, I assert that the President's legal team is not in the job of offering a balanced opinion. They are his attorneys and therefore search for ways to expand his authority. Even though the disintererested parties disagree. Cross-reference John Yoo's views of, "plenary presidential power" with the opinion put out by the Congressional Research Service. www.fas.org/sgp/crs/intel/m010506.pdf

I said:
"And I realize that it really sticks in your craw that the role of the Judiciary is to decide the extent of the power of the other branches."

Chris Ford said:
"Just as it probably sticks in your craw when someone mentions you are profoundly lacking education on how the Constitution sets up equal branches of the Federal Gov't where no branch limits the power and responsibilities of the two others, or the matters left to the States."

Alright. This is the second time in a week I've had to give you a Con Law lesson. The Constitution did not set up three equal branches. It set up a superior branch (Congress), an inferior branch (Exec) and something that wasn't really a branch at all (the Courts). The Supreme Court defined, for itself, the power to overrule the laws passed by Congress in the landmark case Marbury v. Madison, holding that since we had a Constitution, that sounded like something special, and would trump plain-sounding laws.

But it does stick in my craw when someone says something you did because... it is WRONG. Just WRONG. Flat-out WRONG. As I mentioned above, the Supreme Court has jurisdiction in deciding the extent of the powers of the other two. BECAUSE, the powers of the other two are enumerated in the Constitution, and deciding Constitutional questions are the province of.... the Supreme Court. Also, Congress exercises power (theoretically) over the extent of the Article III courts as it can remove things from their jurisdiction. And Congress also has, as you mentioned before, the power of the purse as well as the power of impeachment over the President.

I said:
"Fourth, you rail against the media and the judiciary. Is it because the judiciary is the only branch which is not demostratably controlled by the right?"

Chris Ford said:
"No, it's the only Federal branch where enemy sympathizers and enemy 'civil liberties' defenders still have liberal activist lawyers that think they can use to bypass the democratic process of the American people."

Yah. It's so inconvenient to have a Constitution which prevents a democracy of laws and the, "tyranny of the majority." Marbury v. Madison. Too bad. Deal with it.

Posted by: | January 16, 2006 01:17 PM

"Another Lefty trait that makes them distinct from conservatives is their tendency, even here, to make their rebuttals personal...to always...as Lenin and later Marcuse counseled, to speak to motive and the character deficiencies o the person they disagree with."
-Chris Ford

"Matthew -
You're just another pedantic twit"

As you say, Comrade Ford. But let's look at the facts behind your assertions. I know, you hate to cloud your truth with facts, but let's just give it a whirl.

"The Joint 2001 Resolution starts thusly:

Whereas ...
Whereas ...
Whereas ...
Whereas ..."

Quoting only the whereas clauses in analyzing a statute is like doing a book report based off of the, "About the Author" section before the novel begins. The Joint 2001 Resolution then CONCLUDES and AUTHORIZES:

"Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled ... (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."

Chris Ford says:
"Certain Lefty lawyers have tried getting their pet Gitmo Islamoids off the hook on grounds they 'weren't one of the 20 or so with direct involvement or knowledge of 9/11, therefore not subject to the Joint Resolution.'"

A reasonable person would not conclude that only those 20 people are involved, and thus covered by the AUF. However, a reasonable person would not also conclude that "radical Islam" or "people who want to hurt America" falls under the, "nations, organizations, or persons" who, "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001" clauses. The AUF is only a prospective authorization insofar as it authorizes the President to pursue those, "nations, organizations, or person" who were involved in that attack from enacting another one. That's it. Plain English. Don't need a lawyer to explain it.

But Chris Ford continues:
"And Lefties have loved this theory, (right, Matthew??) along with their notion that Afghanistan and Iraq are 'not real wars'. Unfortunately for the defenders of enemy civil liberties, both the President in speeches to the People, and Congress, in subsequent Bills, Matthew, have defined the enemy in broader terms, as 'international terrorism and nations that facilitate them'. Not just the ~20 behind the 9/11 plot."

The President is powerless to amend the AUF as it was never his to begin with. If CONGRESS wants to amend the Authorization which they authorizes, then they can. But they haven't. You say Congress has changed it in subsequent bills... well, I think this is going to be another, "8 cases" instance, Chris, because those bills do not exist. Or if they do, tell me what they are. Or better yet, tell Atty. General Gonzalez. Because he's still citing to the 2001 AUF as his primary source of authority in carrying out the President's directives. So please, enlighten us both.

I said:
"Third, you can't seriously be suggesting that the president's own attorneys provide meaningful oversight over him."

Chris Ford enlightenly followed:
"You really don't understand the Executive and the bureaucracies that work under it. Every agency has internal controls, advisory lawyers, inspector generals to protect their asses from political appointees that would cross legal lines. You presume an Executive structure where thousands of Democrat appointees and political liberals at places like Justice, the FBI, the NSA were somehow magically subverted into Bush boot lickers willing to break laws."

I presume as much, Chris, because that is what is reported.
In the DOJ: http://www.washingtonpost.com/wp-dyn/content/article/2005/12/01/AR2005120101927_pf.html
At PBS: http://www.broadcastingcable.com/article/CA6283818.html?display=Breaking+News
At the EPA: http://www.washingtonmonthly.com/features/2001/0207.schaeffer.html

But more directly, I assert that the President's legal team is not in the job of offering a balanced opinion. They are his attorneys and therefore search for ways to expand his authority. Even though the disintererested parties disagree. Cross-reference John Yoo's views of, "plenary presidential power" with the opinion put out by the Congressional Research Service. www.fas.org/sgp/crs/intel/m010506.pdf

I said:
"And I realize that it really sticks in your craw that the role of the Judiciary is to decide the extent of the power of the other branches."

Chris Ford said:
"Just as it probably sticks in your craw when someone mentions you are profoundly lacking education on how the Constitution sets up equal branches of the Federal Gov't where no branch limits the power and responsibilities of the two others, or the matters left to the States."

Alright. This is the second time in a week I've had to give you a Con Law lesson. The Constitution did not set up three equal branches. It set up a superior branch (Congress), an inferior branch (Exec) and something that wasn't really a branch at all (the Courts). The Supreme Court defined, for itself, the power to overrule the laws passed by Congress in the landmark case Marbury v. Madison, holding that since we had a Constitution, that sounded like something special, and would trump plain-sounding laws.

But it does stick in my craw when someone says something you did because... it is WRONG. Just WRONG. Flat-out WRONG. As I mentioned above, the Supreme Court has jurisdiction in deciding the extent of the powers of the other two. BECAUSE, the powers of the other two are enumerated in the Constitution, and deciding Constitutional questions are the province of.... the Supreme Court. Also, Congress exercises power (theoretically) over the extent of the Article III courts as it can remove things from their jurisdiction. And Congress also has, as you mentioned before, the power of the purse as well as the power of impeachment over the President.

I said:
"Fourth, you rail against the media and the judiciary. Is it because the judiciary is the only branch which is not demostratably controlled by the right?"

Chris Ford said:
"No, it's the only Federal branch where enemy sympathizers and enemy 'civil liberties' defenders still have liberal activist lawyers that think they can use to bypass the democratic process of the American people."

Yah. It's so inconvenient to have a Constitution which prevents a democracy of laws and the, "tyranny of the majority." Marbury v. Madison. Too bad. Deal with it.

Posted by: Matthew | January 16, 2006 01:19 PM

Excellent Jazzman

But this nation has made it "unpatriotic" to look at ourselves and our contribution to today's world situation. And that has its beginnings far from mere partisan politics.

When I rode the horse and buggy to school (or was that walked ten miles in the snow, I forget which), I best not tell my parents if I got in trouble at school or the punishment my parents doled out would be double that of the teacher. Today, when a parent finds out their kid is in trouble at school they try to punish the teacher for daring to discipline their darling. ANd it doesn't seem to much matter what political party the parents belong too. "My child is above reproach" has morphed into "my country is above reproach too".

To people without access to a critical education and a truly free press, the entire world is assumed to resemble what they see outside their window. Today what many middle easterners see outside their window is that the US killed twice as many Muslims in the invasion of Baghdad as Osama killed Americans on 9-11. And they see our not so smart bombs hitting wedding and hospitals and schools, and now they see bombs lobbed deliberately in the way of innocent children. And the reality they see matches the propaganda they hear, that we have no interest in their welfare, only their oil.

A potential saving grace for us is that al Qaeda may indeed be overreaching as well, bombing weddings and indeed hitting far more fellow Muslims than Americans these days.

The people will side with those who appears to be in their bests interests as viewed outside their window. But you might ask how could they choose al Qaeda? Remember, Afghanis chose the Taliban once as the best choice they saw outside their window at the time. "Democracy" is a great idea but not a concept they can compare in the view from their window - eventually they'll go with whoever gets the lights and heat and fresh water on and makes it safe for their kids (boys, at least) to attend school and their men to make a passble living and who validates their existence as Muslims rather than people who live on top of an oil field. Its a battle for their hearts and minds and souls. And I think the outcome remains very much in the balance. And some of that (but not all) is our fault.

Where is today's Ross Perot? In the 92 election any candidate who said the US had any problems, had made any mistakes, wasn't utterly a perfect paradise, was skewered violently. Then along came ol' Ross and suddenly the US was rife with problems, real problems that needed real attention and real solutions. One man changed the political landscape with a few words. Who can do that today? Who can incite Americans to realize we have created many of the mistakes that put the outcome of the Middle Eastern PR war on such uncertain footing, and that we cannot solve the problem if we are afraid to examine it.

Posted by: patriot 1957 | January 16, 2006 01:58 PM

Twitty Matthew,

Tongue in cheek Matthew, tongue in cheek. I don't think you are a twit either. But Chris reminds me a little of the ticks we get out here. They get under one's skin. No big deal; we just pull them out, toss them into the commode, and flush once.

My legal question to you and Beren would be how law 4th amendment and the FISA statute might apply to the htpthetical situation described in the middle of the penultimate paragraph of that long tedious post I made a few posts above?

Posted by: Cayambe | January 16, 2006 02:31 PM

No worries, Cayambe. Of the long list of things which Chris Ford believes but I'm pretty sure he'll never convince me of, my "twit"-iness is up there on the list. I've paid far too much for my degrees to come around to his way of thinking.

To answer your question about gathering conversations and then looking at them after you have justification, it gets a little persnickity, but where it would ultimately lie (I think) is the 4th Amendment analysis focuses on the reasonableness search, not the analysis that comes out of it. So you cannot start wiretapping and storing every conversation which is going on in the United States and then once you have a warrant for someone, go back and pull their tapes.

I say it gets a little persnickety because there are exceptions for things which are being already stored for some legitimate reason. The government can obtain a warrant to search through the past records of your transactions at your bank, for instance. But that is because you have no privacy interest in something which you are freely transmitting to a third party, i.e. the bank, a third party, knows what you're doing with the transactions you do through them so you have forfeited your privacy interest in them. This is also the focus of the phone records... tap analysis, by the way.

In the example you cited, however, there would be an invasion of privacy in the first instance so even if, after the fact, there existed evidence to support a warrant you couldn't use the evidence you obtained without it. Because it was an unreasonable search of your communications at the time.

That's a little jumbled but I hope the essential point still came through.

Posted by: Matthew | January 16, 2006 02:54 PM

Cayambe,

To put the answer a bit more directly and clearly: the police can't simply break down your door and then, if they see something incriminating, use that as evidence. They can if they're there lawfully in the first instance (you call 911 and they hear a scream so they rush in and in the process see your cocaine sitting on the coffee table) but the analysis still has to rest on the reasonableness of the search at the time that it began. So, unless monitoring these conversations have an independent legal justification, gathering them (and going back later) would be barred by the 4th.

Posted by: Matthew | January 16, 2006 03:08 PM

New Zogby Poll Shows Majority Of Americans Favor Impeachment For Warrantless Spying

http://www.moderateindependent.com/V4015206impeachpoll.htm

Posted by: Patrick Henry | January 16, 2006 03:26 PM

Holy Cowl Robin.

Posted by: Batman | January 16, 2006 03:29 PM

Beren - "Btw, you never did answer my question about why you referred, in one of those passages to "ACLU _Jewish_ lawyers".

It has been commented on, typically in context of ACLU Christian-bashing, that a majority of ACLU membership, legal muscle, and a majority of donor money comes from Jews. Usually this is noted by religious Jewish critics themselves, since they can say it more openly. Bert Prelusky wrote one essay that gave the ACLU a heart attack, "The Jewish Grinch that Stole Christmas". Subsequent discussions were on how the Jewish community split 100-110 years ago on the goal of Jews, Israel or Communism. Religious Jews for the former, secular ones for the latter. The ACLU has always been a special place of power for secular Jews, even after Roger Baldwin purged most Jews in 1950 because of Communist links. Jews since came back in, renamed "progressives", and occupy the preponderance of leadership positions and legal action teams, though they strive to place mainstream "figureheads" in front of lawsuits and ACLU announcements. And the ACLU is still very unpopular in the religious half of the Jewish community, which rails on the general hostility of the Jews in the ACLU to Israel, religion in general, and community values.

The current situation where the ACLU is at the forefront of defended Muslim immigration into America, and taking the lead in defending "rights" of Muslim terrorists abroad, in Palestine, and in the USA has caused much debate amongst Jews, and obviously much debate in the larger community.

"In fact the administration specifically asked for wider authority, and Congress specifically decided not to include it in the resolution."

This of course was 3 days after the attack and where many still had the idea of a single evil mastermind totally unrelated to the "Religion of Peace" was responsible and the Taliban aided "him", plus his small band of minions. Long before the threat was more accurately identified as transnational radical Islamic extremism. But our actions morphed with Congressional asent to wider global cooperation with other nations to combat Islamoids in the Philippines, Iraq, Saudi Arabia, Indonesia, Kashmir, Africa, and N Africa that had nothing to do with the 9/11 attacks, Al Qaeda or the Taliban - but did stuff like Bali, the Madrid bombings, Kashmir attacks. Congress debated and funded those efforts.

"Now, what the President does in his speeches is utterly irrelevant, as I think you know."

That's pretty fatuous, Beren. I disagree - Presidential speeches and declarations of executive orders and actions do count. When the President says X at the State of the Union and Congress doesn't disagree, it, as Justice Jackson said, acquiesces by silence to the Presidential initiative. Jackson said Congress confirms Presidential power in this manner without a vote needing to be taken. Though they can always bawl and squawk and say that Clinton or Bush went too far...until their hand is forced with a Murtha-like vote that shuts up the squawkers and enemy defenders 400-3. Public policy addresses are also imperative to keeping the people informed of what a President thinks is right and what actions are being taken or contemplated.

"Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:'"

Not only that, Beren, but the Executive can ACTUALLY take action not just on scattered Islamoid terrorists but what are legally acts of war against nations without even bothering with a Congressional vote or even Supreme World Leader Kofi Annan geting the prerequisite UN sanction. Do you disagree??

And Lefties in Congress have been silent as Haiti was invaded, missiles rained into Sudan and Afghanistan, American bombs dropped into Serbia and Kosovo, and an intensive attack was suddenly launched into Iraq that killed hundreds. Oooops! That was all under a Democrat the Lefties supported. Not that their current principled stand of demanding the Executive play "Mother May I" with the UN or Congress and fine-splitting legal nuances has anything to do with partisanship - ey???

Posted by: Chris Ford | January 16, 2006 03:37 PM

Jazzman......That was one fine speech in defense of our Constitution -- exquisitely fine.

I couldn't agree with you more on the the practical problems of "strict construction". Strict as to text? Strict as to original intent? Strict as to tradition? Or what? But it does cut both ways. An enormous body of essentially liberal legislation relies on an extention of the commerce clause beyond anything in that particular text, in the original intentions of it, or traditions of the day.

I have been watching the Alito hearings closely and I must say I don't entirely share your sense of doom here. It is true that I will mourn the loss of Sandra Day O'Conner; not for her effect on Roe but for her stirring dissent on "emminent domain". I can't say that replacing her with a justice so respectful of SC precedent is a comforting thought in this regard. On the other hand, it is important to have diversity among the 9 justices, and I mean diversity of approach to the task of judging. In this regard, the skills you decry are nonetheless skills which should have representation. In his apparent approach, he reminds me much more of Justice White (Kennedy appointment) than either Scalia or Thomas, with whom he is more usually cast.

The fellow who interests me most is Justice Roberts, who seemed more aware and sensitive to the broader issues within narrow constructions. Whether and where he might lead the Court in this regard remains a mystery; but if he can, it would not surprize me if the direction is quite different from the one most people expect. It would not surprize me if he read the Constitution itself in very much the same manner as you and I might. In this respect the record of an appellate judge usually sheds little light, since they are so closely bound within their own and Supreme Court precedents and relatively rarely get a chance to apply the Constitutional text directly.

Your essay was wonderful. Really wonderful.

Posted by: Cayambe | January 16, 2006 03:56 PM

Anyone else find it absolutely hillarious that Ford speaks so negatively about Marxists and Lefties and how they argue, all the while mimicing the style? Is this satire and I'm not noticing it? Is this really all a big joke by Ford? at least 50% of his posts have got to be basedlargely in the defamation of individuals or groups that disagree with him.

Hypocrisy at its finest. Ford, I thank you for making me realize how important it was that my parents hugged me as a child.

Posted by: Chris Ford, Marxist Mercenary, extraordinaire | January 16, 2006 03:59 PM

Matthew: "The AUF is only a prospective authorization insofar as it authorizes the President to pursue those, "nations, organizations, or person" who were involved in that attack from enacting another one. That's it. Plain English. Don't need a lawyer to explain it."

It has been broadened in the last 4 years to "international terrorism". No significant fraction in Congress buys your argument that the conflict with radical Islam and war against international terrorist groups is limited to only card-carrying members of Al Qaeda and the Taliban leadership that assisted Al Qaeda. Or to the 20 individuals that had direct knowledge of the 9/11 plot, all but 3-4 whom are now dead or in our custody. The AUF doesn't end when we get the last 3-4, one way or the other.

"'Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:'"

Agree or disagee, Matthew? Congress seemed to favor that statement in their vote, none seemed to want to change it to "Congress has the authority to tell the President to...."

"The Constitution did not set up three equal branches. It set up a superior branch (Congress), an inferior branch (Exec) and something that wasn't really a branch at all (the Courts). The Supreme Court defined, for itself, the power to overrule."

Not what the Federalist Papers said, what the Founders thought, or what any schoolkid is taught. But we will leave you to your sweet, personal little theory of "The Constitution According To Matthew".

Judge-worship is a noted Lefty trait, as long as they have had liberal activist judges willing to bypass Democracy in power. That era is now in it's twilight, as the people, the States, and Congress are all working to reverse court usurpations of prerogatives the Courts never had a Constitutional basis to meddle in in "obtaining progressive goals". Towards the end of the 19th Century and in FDR's years, the judges were also beaten back - but for being too far in the pockets of the conservatives, not the Left or ACLU, as is the case today.

"But it does stick in my craw when someone says something you did because... it is WRONG. Just WRONG. Flat-out WRONG. As I mentioned above, the Supreme Court has jurisdiction in deciding the extent of the powers of the other two.BECAUSE, the powers of the other two are enumerated in the Constitution, and deciding Constitutional questions are the province of.... the Supreme Court."

No it doesn't. Various Presidents have told SCOTUS to pound sand when it tried to encroach on Presidential Powers reserved for the Executive under Article II. Adams, Lincoln and Jackson directly defied SCOTUS. TDR, Wilson, and FDR theatened SCOTUS not to defy their initiatives and executive orders - or face consequences of public defiance (another Constitutional crisis), court-packing, or impeachment of certain Justices for subverting democracy and the Constitution. Once a President is in actual open defiance of SCOTUS, as Lincoln was, the only power SCOTUS has is to take it to Congress, and urge impeachment. Which is tough if either a court urges Congress or Congress tries the impeachment tool when a President is popular, as reluctance to impeach Lincoln, or Reagan for Iran-Contra showed, or Clinton for lying under oath - even though technically all were "guilty" of violating certain laws. Impeachment has a better shot at unpopular Presidents, like Andrew Johnson and Nixon.

"So, unless monitoring these conversations have an independent legal justification, gathering them (and going back later) would be barred by the 4th"

That would be the "Terrorist Protection Catch-22 Per Matthew's Wisdom"?

Posted by: Chris Ford | January 16, 2006 04:26 PM

Mr. Ford, glad you could join that party, for a while there I thought maybe you were off for the MLK Holiday.
I will grant you this, the original move in Afghanistan was brilliant but that was all we really needed. I understand what you are saying, we are all in this together, righties/lefties/ups/downs whatever.
Who got us into this?
Thanks a lot.
We need to do better. If calling for impeachment hearings is the only way to get this President to listen, then so be it, but he must listen to others, for the good of the country. He only gives us one choice when there are many.
The choices he does give us makes the thinking Citizen wonder. The process is everything. Why? Because when you consider Schrodinger's wave equation in light of the Heisenberg Uncertainty Theory it becomes obvious that you never really know what will happen.

Disclaimer:
The foregoing statement gives the President the benefit of the doubt.

Posted by: Impeach Bush | January 16, 2006 05:02 PM

This is for D

http://www.msnbc.msn.com/id/10789839/

It was our duty to send soldiers to an elective war properly protected. If they choose not to wear the armor then so be it, so long as the Pentagon is actively working on better (read more wearable) armor and wiser policy about how to make the less armored "more mobile" soldiers less of sitting ducks.

"Anyone else find it absolutely hillarious that Ford speaks so negatively about Marxists and Lefties and how they argue, all the while mimicing the style?" Chris Ford must work in the Bush administration. They have perfected the art of accusing the opposition of doing exactly what they themselves are doing - the old when you point three fingers are pointing back at yourself deal.

As seceretive as the old USSR was, people learned to how to sift through the news and find out the truth. And it works prettiy well for this administration and their apologists too. If you want to know what they're up to, just look at what they're accusing the opposition of, and there it is.

Posted by: | January 16, 2006 05:10 PM


You make an excellent point, anonymous poster of 5:10 pm. The pattern of accusing the enemy doing what you're doing/are about to do has been a very successful SOP ever since the florida recount, where James Baker successfully accused those who wanted to count all the votes as being against honest democracy. We can't trust people, he said, only machines. Democrats will steal votes. Katherine Harris, however, was openly partisan and so above reproach?

Another SOP of the GOP used by Chris Ford is to never concede any opposing point, nomatter how obvious. Even if you later adopt the point as your own, you are supposed to deny it's origin.

By an extension of this same technique, FDR should be used to attack Lefies, Liberals and Democrats because, as a succesful war President, he would obviously choose to be a Republican today.

Arguments are very easy to win when you substute straw man fantasies for the actual points of those you are debating.

Eventually, one hopes, voters will tire of this kind of technique. A number of prominent Republicans alreay have.

Posted by: Bullsmith | January 16, 2006 05:34 PM

I said:
"The AUF is only a prospective authorization insofar as it authorizes the President to pursue those, "nations, organizations, or person" who were involved in that attack from enacting another one."

Chris Ford:
"It has been broadened in the last 4 years to 'international terrorism'."

I ask:
By whom? You referenced above the subsequent bills passed by Congress. Should we just put that down on your tab with the 8 cases?

"'Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:'

Agree or disagee, Matthew? Congress seemed to favor that statement in their vote, none seemed to want to change it to "Congress has the authority to tell the President to...."

The President has some limited authority to respond in circumstances where it would be too slow for Congress to deliberate. However, Congress was free to put in, "Whereas we like ham sandwiches" and it would have the same substantive legal effect.

I said:
"The Constitution did not set up three equal branches. It set up a superior branch (Congress), an inferior branch (Exec) and something that wasn't really a branch at all (the Courts). The Supreme Court defined, for itself, the power to overrule." (and then Mr. Ford cut off my reference to Marbury).

Mr. Ford said:
Not what the Federalist Papers said, what the Founders thought, or what any schoolkid is taught. But we will leave you to your sweet, personal little theory of "The Constitution According To Matthew".

I say:
Well, here's part of Federalist #26 below. The Founders had just come out from the rule of a king so the Federalist papers are rife with assurances that the power of the Executive was a LIMITED one. Re: the judicial branch, I probably overstated the case, but Marbury was pretty much created out of whole cloth. And I'm sorry... the reason we go on to further education is so we don't have to rely on that which we received in grade school. And just because presidents decide to flaunt the Supreme Court does not mean that that is how the system is envisioned. Bringing up Lincoln for the 8,532rd time does not prove your case.

"The legislature of the United States will be OBLIGED, by this provision, once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence."

I said:
"So, unless monitoring these conversations have an independent legal justification, gathering them (and going back later) would be barred by the 4th"

Chris Ford asked:
That would be the "Terrorist Protection Catch-22 Per Matthew's Wisdom"?

I say: No. That would be 4th Amendment. See, e.g., Ybarra v. Illinois. Again, sorry we have a Constitution. I can tell how much it irks you.

Posted by: Matthew | January 16, 2006 05:34 PM

Cayambe - "But Chris reminds me a little of the ticks we get out here. They get under one's skin. No big deal; we just pull them out, toss them into the commode, and flush once."

Using the same earthy analogies, Cayambe, stepping through you is like stepping through cowflops. It doesn't hinder one's progress in the slightest, but a certain stench is encountered along the way.

Can't wait to see what odors we can expect emenating from you as the Islamoid crisis of Iranian clerics and what is termed their overseas "A-Team" of terrorism heats up. What percentage of Iranian-Americans or resident Iranians here is loyal to Ahmadinejad and ready to die for the radical Shiite Islamic cause? More than the 10% of Japanese aliens or Kebai (10%)? Or less, but still more than 19 by a factor of a hundred or a thousand.

Obviously, the radical Shiites are completely clear of the 2001 AUF. So what is our stake....as weak as the enemy-defending ACLU lawyers said it was after the 1st radical Sunni attack on the WTC?

Shall the Cayambe cowflop burp some methane on this matter or send it's maggots out to opine, or should they just pupuate?

Connect the dots, monitor threats? Or just wait and see over the next 3 years of the Bush-Hitler what they can do as Iran is on it's nuke bomb building path? Remember our dear Matthew and how he thinks terrorists are protected under the 4th, from scrutiny.

Can you say....

Surprise! Surprise!

Or would we rather do a little intelligence gathering on Hezbollah and other terrorist cells run by Iranian Islamoids here and abroad? It would be sweet to finally get some payback on the Iranian Islamoids for (1) The Marine barracks (2)Khobar Towers (3) Sheltering Al Qaeda (4) Helping devise IEDs to kill our troops (5) Raising trouble throughout the ME, inc killing leaders and funding Pal suicide bombers (6) Attempting to enforce Sharia and the killing of opposition leaders and dissident writers by Iranian assassination squads.

With perfect timing, reminiscent of his global warming speech on the coldest day in NYC in 48 years, Noble Algore is demanding a stop to warrantless searches of Islamoids and their associates.

Shall Cayumbe belch methane or not? Shall he hold back or send forth his maggot minions on the matter of whether or not to defend Iranian enemy liberties? Or will his cowflop assent to the longhorns and cowboys riding by with a higher view of the action?

==============

It never ceases to please me that the Lefties try to hit the "Bush-Hitler" on his strength and defend America's enemies purely because they are anti-Bush, while ignoring the "corporate crony" conservatives extreme vulnerability on their recklessly mishandled domestic matters.

The terrorist right to the 4th and 5th? Bwwwaaaah! Matthew....

How can I contribute to Noble Algore? What a pal he is! 3 weeks after Ahmadinejad says he will destroy another country, 3 days after Iran broke the nuclear seals, we have good old Gore defending enemy rights.

You really can't buy that.

Unless you are multibillionaire, progressive Jewish philanthropist George Soros, cutting checks to 50 or so "progressive" organizations asociated with the Dem Party as 2 former ACLU national heads on his staff urge - all while funding Moveon.org.

Soros. Algore? A keeper for you!

Posted by: Chris Ford | January 16, 2006 06:25 PM

Okay, now who's down with history? Like many students in school, if you'd asked I'd have said: "It's okay, but really, what's the point?" But I'm fortunate in having a remarkably good memory, so what I did learn then I've been able to add by more reading and PBS specials and listening to lots of good radio. And that and the price of bananas?
"They" say (another conspiracy, I'm sure) that those who do not know (I think they mean "understand") are doomed to repeat it. Or words to that effect. Anyway, it gets me thinking now and again.
If you can see the activities of human societies as trends rather than sequential events, you can look at "now" and try to perceive the future projected at the average acceleration of advance. Meaning, that just as in technology advances each repetition of the same sequence - informed by its trial-and-error predecessor - is an order of magnitude shorter, so do similar social cycles take place within regional sociological communities.
Example: take the U. S. as a sociological community. We have taken off from our colonial origin, passed through the foreign military enemy I phase (War of 1812). Civil War and reconciliation. Wars of acquisition and dominion. Wars of Conscience. Wars of fear. And that's where we are. It goes without saying that until this present time, national economy grew steadily based on understandable commerce and productions.
Ooops. Now we have moved into an economy based on knowledge and service. Hmmmmm? What is that and how does it change the nature and worth of an individual? There are reasons to be fearful that have nothing to do with the likelyhood of being killed or hurt by a terrorist act compared with the likelyhood of being down-sized, global-economied, natural disastered, or economically declined into a different life.
I totally agree with those who write here who are pissed off; I'm pissed off too. I was told in history class that this was a land of opportunity for all, a land where the meaning of freedom stood for something we all should know and cherish. I took them literally. What is the nature of our freedom? How did we derive it from those acts of "patriots" in 1775? It is a story of courage and luck and a selflessness of middle-class men and women (and some children).
That's not how it works today. It has that potential, and in a few scattered moments of U. S. history it has. We need to look at the united purpose mindset of those days and realize that with a single exception (2 if you count the Civil War) that these periods occurred during times of peace. There is a lesson to be found. We can only advance if we all advance together. We can only do that if our government is honest with us (and we can enforce that at the ballot box) and when we are honest with ourselves. Look at the history. And while you're at it you might look at the same phenomena in world history. Only ever has it worked the same way. These moments are islands in the long years of known human history.
Grist for the mill.

Posted by: Jazzman | January 16, 2006 07:15 PM

This pretty much sums it up:

"It never ceases to please me that the Lefties try to hit the 'Bush-Hitler' on his strength and defend America's enemies purely because they are anti-Bush, while ignoring the 'corporate crony' conservatives extreme vulnerability on their recklessly mishandled domestic matters.

The terrorist right to the 4th and 5th? Bwwwaaaah! Matthew...."

Chris Ford, do you actually want to debate issues? Or, as is indicated above, are you just looking to grind some political ax? What do you think the Left is foolish for not "debating"? That the Republicans have themselves mired in ethics problems? That the new Medicare drug benefit is turning out to be badly managed? That, if readiness was a test, the fed got an F for Katrina?

Those are all political points. And, I think safe to say, obvious truths. The extent, and rationale for, government intrustion onto individual liberties, is a debate. The nuance of Constitutional law is a debate. How to handle international relations is a debate.

People here try to accord you the respect of taking up your arguments on the merits. When apparently, you're just looking (and expect others are looking) to score some political points. Thanks for sharing.

And "Bwwwaaah!"?

Posted by: Matthew | January 16, 2006 07:20 PM

(Chris Ford -- I have been reading your comments the best I can for a while. I cannot figure out what or whom you are angry with. Whatever liberals may think or feel at this point in the U. S. they do not control the U. S. government. They cannot stop judicial appointments, block key legislation, command the armed forces, nor control the intelligence and espionage services. Whatever is happening is happening completely under conservative Republican aegis. Those of us who may hold a more progressive point of view are not in the way of this federal government. Liberals, whatever different from your way of thinking, are not your enemies nor enemies of this country. I'm sorry if a misunderstanding has made you feel insecure in this blog commentary.)

Posted by: Jazzman | January 16, 2006 07:25 PM

Should you take the blue pill or the red pill?
The election was hacked. Exit polls do not agree with the vote tally in 26 states. See Harper's Magazine for the details.

I see England I see France I see ameria's media's underpants.

Hardly anyone but the post is reporting the Medicard Drug Benefit melt down.


At least the Democrats know how to run a Government, the Republicans are only good at stopping it, starting with Newt the Gingrich.

Posted by: Neo | January 16, 2006 08:12 PM

"Chris Ford -- I have been reading your comments the best I can for a while. I cannot figure out what or whom you are angry with."

American leftists who give aid and comfort to the enemy under the guise of being enemy civil liberties watchdogs.

"Those of us who may hold a more progressive point of view are not in the way of this federal government."

BS. You people have tried to block every prorective measure since 9/11.

"Liberals, whatever different from your way of thinking, are not your enemies nor enemies of this country."

Frequently they have been. Witness the "Peace Democrats" of 1862 that emphasized "precious enemy rights and absolute civil liberties" in blocking Lincoln. We call those traitors "Copperheads" these days, after the poisonous snakes bearing that name.

"I'm sorry if a misunderstanding has made you feel insecure in this blog commentary."

No more than the young men of the slave trade felt bad after presenting their willingly buttered-up "boy buns" to Arab slavers lusts in return for more food and better treatment to augment their survival odds on the trip to the Ivory Coast or Zanzibar. That you do not feel insecure about defending the Islamists who caught and sold your ancestors into slavery speaks volumes for your strength and willingness to let bygones be bygones, Jazzman.

Posted by: Chris Ford | January 16, 2006 08:17 PM

Chris Ford, you write:

===========================================
"No more than the young men of the slave trade felt bad after presenting their willingly buttered-up "boy buns" to Arab slavers lusts in return for more food and better treatment to augment their survival odds on the trip to the Ivory Coast or Zanzibar. That you do not feel insecure about defending the Islamists who caught and sold your ancestors into slavery speaks volumes for your strength and willingness to let bygones be bygones, Jazzman."
===========================================

Zanzibar. Ivory Coast. 'Boy buns'. Lustful Arab traders. What on earth are you talking about, and what does it have to do with warrantless domestic spying?

And, um, the "islamists who caught and sold [Jazzman's] ancestors into slavery" are dead and gone and don't have much in common with Al-Qaeda except for a) being Muslims (but by this argument you could equate the Quakers with the Spanish inquisitors), b) being Arabs (but by that logic, you could equate Sinn Feiners and Bono), c) doing very bad things (by which logic you could equate Nero with McVeigh).

You're just having us on, right?

Posted by: Beren | January 16, 2006 08:36 PM

LOL! I'm sorry, that was funny.

Posted by: johnnyg in NE DC | January 16, 2006 08:46 PM

Chris that type of thinking only perpetuates the wrongs.
When I was captain of the Enterprise you know I was always flying off the handle taking a poke at the Klingon's ever chance I got, but then we became friends with the Klingons after they canceled the series, I had nothing to do with it. Seriously. Anyway, that new Captain, John Luke whatever his name is takes over and every time I think it is time to order "Fire Fazors", old Captain John Luke is talking. Talking, that is right, talking. As first I can't deal with it. In my heart I'm screaming Fire those Fasers, man!!!! But, no. Just talk, to find out what is happening. Sometimes it turns out good thing, it was all just a misunderstanding.
We should afford everyone at least that one chance in the Twenty First Century, we need to be free from our past.
The 20th was bloody enough, and quite frankly we are still dealing with it. This current situation is directly related to the loose ends of WWII just like the cold war was. This is all about Israel. Nobody has the guts to open this issue up, but that is the issue, the legitimacy of the state of Israel as a solution to the offical acknowlegement of the wrongs perpetrated by the Europeans on their Jewish Populations.
Beam me up Scotty.

Posted by: Captain Kirk | January 16, 2006 08:59 PM

Matthew,

"The government can obtain a warrant to search through the past records of your transactions at your bank, for instance. But that is because you have no privacy interest in something which you are freely transmitting to a third party, i.e. the bank, a third party, knows what you're doing with the transactions you do through them so you have forfeited your privacy interest in them. This is also the focus of the phone records... tap analysis, by the way."

I assume this is the jumbled thing you meant to clarify. But it still seems to me a very persnickety matter.

1. I don't think I necessarily forfeit my privacy interest as a consequence of transmission to another party or involvement of another party. If I did, no warrant would be required for bank records, medical records, video rental records, library records, or any records not in my physical possession (such as an email going through a communications switch on the East Coast somewhere). I know that Congress can limit my constitutional privacy interest by statute. I believe that is one of the elements of the Patriot Act, to provide the FBI with the power of direct access to certain record classes without a judicially reviewed warrant. What duty or obligation the other private parties like banks, doctors, etc. have to protect my privacy within records in their possession is a whole different but no less critical matter. I don't believe the Constitution defines that particular obligation or duty, but case law and statutes probably do, to the extent that it exists. Yes?

2. How far does my privacy zone extend? Assume that my transactions with a bank are somewhat protected (content). Is the fact that I have a relationship with the bank a private matter? Would the FBI be compelled to get a warrant to inquire of the bank whether I am a customer of the bank? Would the FBI be compelled to get a warrant to obtain from the bank a list of all of its customers? Does the bank have the latitude to volunteer the requested relationship information or does it have the obligation to require of the FBI a warrant first? Considering the general availability of this and even more particular information for a small fee on three commercial credit bureaus, what real privacy in my financial relationships do I have left to protect? Now we go to the next level of relationships. Would the FBI require a warrant to inquire whether the bank had a record of my financial relationship with person X? I.e. a remittance from me to X or, a remittance from X to me. Would they require a warrant for a list of all such relationships?

3. See where I'm going? Now we substitute the communications companies for banks and start going after their relationship records.

4. Despite Jazzman's eloquence in his defense of the 4th amendment's application to modern replacements of the function of pen and paper, we are still left to decide whether the mailing address and return address on the envelope which conveyed a private message, and is now in the possession of the recipient or an intermediary party, falls within the zone of protection of the 4th amendment for my privacy. In essence this is what detail phone billing records are analogous to. It is not immediately obvious to me that my 4th amendment right to privacy extends to this particular information, not the content of messages, but the at least semi-public addressing of them.

5. It seems to me there is an essential difference between the notions of anonymity and privacy. Anonymity provides privacy as a by-product of severing any link between the message content and the actual author's identity. In this regard it is really the most effective way to guarantee privacy. For all we know, Chris could actually be a Muslim communist having fun on his time off work and you could actually be a Republican activist trying to make the WP look more leftward than it really is. Your anonymity here protects you from any such inquiry. But I don't believe the Constitution can be read to provide a right to anonymity, even though I well wish it could.

This is why I keep focusing on the difference between message addressing information and message content information. In my earlier post today, I was focusing on whether any kind of content scan might be admissible for the purpose of then obtaining a warrant to read the message in its entirety.

I was actually driven there by following the notion that Bush should go to Congress and ask for a revision of the FISA law to accommodate a real actual problem they might have. What might they ask for? Lets suppose Congress does a Patriot Act kind of thing on FISA and says yes, you can do this kind of scan and the results are admissible to obtain a warrant. That makes it lawful for the President, but does not, by itself, make it Constitutional. The more difficult question now is, has Congress exceeded its authority relative to my privacy rights given me by the 4th amendment? I would think that an unwarranted search of library records or business records would be as challengeable on the same grounds .... e.g. the Patriot Act.

It seems to me that it might well be a very different question whether a scan of addressing information might produce information that would be admissible for the purpose of obtaining a warrant to read messages in their entirety. If one can associate a probable terrorist in Europe with a specific address and find 18 messages between that address and a US address whose timing coincides with specific terrorist activities, would this then justify a warrant to read the messages? Before you can bring a 4th amendment argument to this particular issue it seems to me you have to first establish that the 4th amendment applies to this particular information, that in and of itself, it is within an individuals zone of privacy. If it is not, then it can only be challenged on the basis that it violates some particular Congressional statute and the application of this statute to the executive branch doesn't result in an unconstitutional encroachment by Congress on constitutional Executive powers.

Further thoughts ?????????

Posted by: Cayambe | January 16, 2006 09:24 PM

Sully,

I realize your frustration with Brokeback Mountain not being available on DVD but lighten up...

Go rent some good Broadway Musicals..

Posted by: The Real Lonemul | January 16, 2006 09:25 PM

No need for that kind of talk Lonemule, becasue we've got "buttered boy-buns" and "lustful" captains right here!

Posted by: johnnyg in NE DC | January 16, 2006 09:41 PM

(Chris Ford -- I have been reading your comments the best I can for a while. I cannot figure out what or whom you are angry with.

Jazzman, we all wonder that.

I have come to the conclusion that he is a plant.

In the kind of tyrranist state he advocates for there are some who prosper - in a Russian style communist state its the military and the "party" leaders and their families. In a fascist state its the corporate cronies and the lobbyists and the government they have in their pocket.

So, which is he?

My guess is the "crony/lobbyist" category. A plant who will be in position for some kind of "trusty" assignment for his services.

Posted by: patriot 1957 | January 16, 2006 10:21 PM

More evidence for the plant

Schooled in muddying the water
Full of "factoids" to support a position but unable to actually discuss any of them in depth
Adept at making strawmen
Attacks instead of defending his positions

Now who do we know who excels at these tactics?

My guess is Luntz or someone like him has developed himself a new "public opinion massaging" program for the blogosphere. Its the only thing that makes sense

Posted by: | January 16, 2006 10:26 PM

Well a republian uttered the "I" word today. Its getting closer. Now all that is needed is any American who was wiretapped without a warrant, against the FISA law Bush signed, then violated willingly, to take it to court. That or a Congress with a backbone, which it does not have.

Impeachment would serve Bush right for allowing 9/11 then taking away our rights because of it. I hope everyone has learned a lesson: Republicans hate government so this is what happens when you put people in government who do not believe in government.

Posted by: Sully | January 16, 2006 11:24 PM

republcans hate government?

These kind of sweeping generalizations do not help the debate.

But I did see some positive signs today. Bob Barr in bed with al Gore was a sight I thought I'd never see in this lifetime. And on Larry King Live Orinn Hatch watching his words v-e-r-y carefully, as if he were waiting to see which way the wind is blowing before committing.

I think this is starting to get interesting.

And I want to know more about Christiane Amanpour (the Andrea Mitchell thing). Anyone with any dirt there?

Posted by: | January 17, 2006 01:54 AM

Chris Ford wrote:

"Or would we rather do a little intelligence gathering on Hezbollah and other terrorist cells run by Iranian Islamoids here and abroad? It would be sweet to finally get some payback on the Iranian Islamoids for (1) The Marine barracks (2)Khobar Towers (3) Sheltering Al Qaeda (4) Helping devise IEDs to kill our troops (5) Raising trouble throughout the ME, inc killing leaders and funding Pal suicide bombers (6) Attempting to enforce Sharia and the killing of opposition leaders and dissident writers by Iranian assassination squads."

Chris, you forgot about the Embassy hostage taking, the attempt to destroy our Aegis cruiser with a suicide civilian airliner mission (where does everyone think Osama got the idea, out of the blue?), not to mention their secret WMD stockpiles and programs.

Why bother with the intelligence gathering Chris. Even you must see we are not very damn good at it. Wouldn't you rather just nuke those Iranian buggers, all of them, turn them into radioactive ash, really give all ME Islamoids a lesson in proper humility? We know the Iranians are all terrorists, or at least terrorist supporters, who are just as bad. Its not like they are Christians or something is it? Whereas the 2001AUF said something like "all necessary force", isn't that authority enough for the President to launch what he deems most effective? If that's not good enough all he has to do is say the nukes were aimed at the Taliban in Afghanistan and can some Air Force general for missing the target. Who is going to argue with him after all? It's not like the squeamish leftist courts or corrupt congress has anything to say in this matter is it? C'mon Chris, lets just quit beating around the bush and get it over with, "get it on" as somebody once said. How about it? Just cut to the chase? :o)

You came pretty close with the flops, but its not the cows that do the flopping around here, it's the 4 dogs who process about 90 pounds of food into fertilizer every 3 weeks or so. It's pretty apparent your actual up close flop experience is at best limited, or you would know flops are indeed a hindrance to movement, especially in winter when they stay wet and goopy and are every bit as effective as grease in eliminating all friction under foot. As for methane, it's not the flops themselves that produce that much, any more than your flops do. Most of that gas is expelled directly into the atmosphere from the same bodily orifice that produces the flops. Dogs do their fair share, about the same proportionately as you. On the other hand, cows and other ruminants are the real SUV's when it comes to methane emissions. Like most of us, you probably have some direct experience with this particular phenomenon; even city boys know what tooting is all about.

Posted by: Cayambe | January 17, 2006 02:24 AM

I also agree with Patriot, I think Chris Ford may be some kind of plant. Distract through silly baseless opinions and name calling, racism and comments that are non sense. It throws others off, creeps people out, and distracts from the real purpose of the discussion. The more I read him the more I am starting to believe this to be the case.

Posted by: SpeakoutforDemocracy | January 17, 2006 08:28 AM

Cayambe,

Ok, will give this a go as best as I can although my Criminal Procedure class was a few years back.

First, as an initial matter: "I don't think I necessarily forfeit my privacy interest as a consequence of transmission to another party or involvement of another party."

You do. Or, at least you give them the option of giving away your 4th Amendment rights.

The key term in a 4th Amendment analysis is a, "reasonable expectation of privacy" as defined by an objective standard. If you and I are having a conversation, alone, in your house, and I am hooked up with a wire, the government requires no warrant to use our conversation in court. The logic is that anything you tell me, I'm free to tell anyone else, so there's no privacy expectation. There would be a shared privacy expectation, but not an individual one.

Now, as far as non-individuals, you see where this is going. You may have a privacy agreement with them, but you don't have a 4th Amendment right. For bank records specifically, you can see U.S. v. Miller. There may be other obstacles to the government obtaining the information (in Miller they had a subpeona) but the 4th Amendment is not one of them. (The leading case on phone records is Smith v. Maryland).

You're right to distinguish between content and information which is publicly exposed. Who you are calling (phone records) you do not have a privacy interest in. What you say when you call them (phone conversations) you do. Ditto for letters and the addressing of them.

=====================================
Lets suppose Congress does a Patriot Act kind of thing on FISA and says yes, you can do this kind of scan and the results are admissible to obtain a warrant. That makes it lawful for the President, but does not, by itself, make it Constitutional. The more difficult question now is, has Congress exceeded its authority relative to my privacy rights given me by the 4th amendment? I would think that an unwarranted search of library records or business records would be as challengeable on the same grounds.
======================================

The answer to this question is no, Congress has probably not overextended its authority relative to the 4th Amendment. As far as businesses goes, businesses possess no 4th Amendment right. Individuals do. So Congress can declare via statute anything that does not violate the Constitution. Ditto for libraries. They're owned by a third party (the Government, generally). You have no privacy expectation that their records will be sealed and never kept.

Your last question is a bit different:

======================================
If one can associate a probable terrorist in Europe with a specific address and find 18 messages between that address and a US address whose timing coincides with specific terrorist activities, would this then justify a warrant to read the messages?
=====================================

That is simply does the information in existence provide enough specificity in order to justify a warrant (under the 4th Amendment). And that determination is up to the existing magistrate.

This answer is also a bit jumbled, but this is before I've had my coffee for the day. So I apologize. But your instincts are right and your thoughts well-formulated (certainly better than these).

Further thoughts?

Posted by: Matthew | January 17, 2006 10:38 AM

His shirt says "they're already there" not "here"

Posted by: db | January 17, 2006 01:07 PM

Thanks a bunch Matthew, that really clarifies most of the boundaries here as I see it.

By the way, there is a very interesting article in the New York times today giving some more details on what the program really does, the NSA/FBI relationship, and a rather muddied view of its actual effectiveness. But the details tell me I seem to have been conjecturing along the right tracks, even unto what real role Tice probably played in this operation. When I put that together with what you just outlined above I can't see any reason why this program cannot be and could not have been accomodated within the FISA structure assuming some minor modifications of it by Congress. In other words, there is no necessity, on national security grounds, for this to become a constitutional crisis.
I'm afraid I'm coming to the unfortunate conclusion that President Bush is indeed playing unacceptable politics with national security. I really do not like that.

I do still have some constitutional concerns vis a vis any differences in operating constraints between the FISA court in particular and domestic criminal courts in general. It seems to me that we may be walking into an area where it becomes constitutionally OK to gather information which is still not constitutionally admisable in a criminal trial. That can become a tainting question.
I'm back to the old "wall" issue between intelligence and law enforcement agencies. If I must make a choice, I would tend towards enabling the prevention of attacks, even at the price of hampering the conviction of the perpetrators in our criminal courts in order to protect my traditional civil liberties.

But that is for another day...enjoy some more coffee.

Best Regards......

Posted by: Cayambe | January 17, 2006 02:37 PM

I also agree with Patriot, I think Chris Ford may be some kind of plant. Distract through silly baseless opinions and name calling, racism and comments that are non sense. It throws others off, creeps people out, and distracts from the real purpose of the discussion. The more I read him the more I am starting to believe this to be the case.
Posted by: SpeakoutforDemocracy | Jan 17, 2006 8:28:41 AM

A plant for what? What you described are the typical actions and sophistry of extreme conservative talk radio hosts (such as Rush Limbaugh) and certain FOXnews commentators (such as Bill O'Reilly). Chris Ford is merely a product of that culture. He's simply aping the actions of reactionary demagogues. If Chris Ford is a plant, then he is a pod like so many fans of those type of radio/FOXnews propoganda shows.
Plant or no, I think it has been established that Chris Ford is first and foremost a distraction from real debate of the issues. No matter what the topic is here, he jumps in with his usual mix of personal attacks and deliberate misrepresentations. His hypocrisy about lecturing people on attacking other's motives is glaring, as he is the one most guilty of assailing the motives of others here on 'The Debate'. He is also notorious for evading any real debate or discussion, abandoning one line of misrepresentation to start another without any regard for fair and open debate. Plant? Maybe. Bad seed? Definitely.

Posted by: ErrinF | January 17, 2006 03:15 PM

It'd be nice if the 'real' Lonemule posted something of 'real' substance. Instead we get baseless attacks on this blog and other debaters without ANY substantive discussion of the topics at hand. If this blog is so very horrible, then how is empty bitching supposed to fix that, Lonemule? Your posts so far have offerred little more than the brayings of a jackass.

Posted by: ErrinF | January 17, 2006 03:32 PM

Matthew

"The key term in a 4th Amendment analysis is a, "reasonable expectation of privacy" as defined by an objective standard. If you and I are having a conversation, alone, in your house, and I am hooked up with a wire, the government requires no warrant to use our conversation in court. The logic is that anything you tell me, I'm free to tell anyone else, so there's no privacy expectation. There would be a shared privacy expectation, but not an individual one."

If the above is true when can one ever have an expectation of privacy. Any conversation will include at the least two people.

I'm confused.

Posted by: David | January 17, 2006 08:34 PM

David,
Matthew was still on his first cup of coffee so let me explain how I make sense of it.

If you go back to the very beginning you will see how a secret becomes a secret no more once you share it with but a single other party. Your 4th right is impregnable. The party you are talking to has his own impregnable 4th right. His right does not extend to you, nor yours to him. The conversation is protected so long as both of you independently assert your right. If he waives his, or you waive yours (and each of you has the independent option to do that, the conversation is no longer private. The conversation is protected by your "shared" assertion of privacy, to mean that in order to exist both of you must assert it. If you are wearing a government wire you have waived your 4th amendment right and there is no longer any privacy to protect. Of course the other poor bugger doesn't know that so it is not exactly fair, but it is legal. I should say I think it is based on how I interpret what Matthew said.

It does lead to some interesting conclusions though about the legality of listening in on international conversations between a US citizen in the US and a non-US citizen overseas. I would expect that the administration would say that since the non-US citizen overseas has no 4th amendment right in the first place, there can be no shared privacy so by definition this cannot be a private conversation for the purposes of the 4th amendment. I put it that way because as I read the FISA statute, a warrant is required if a US citizen is a party to the conversation, regardless of where he is located. Thus the FISA statute is more restrictive than the 4th amendment. That changes the issue from a matter of the President ignoring my constitutional civil liberties to a matter of does the statutory extension of protection for my civil liberties unconstitutionally intrude upon executive powers.

It is going to be very interesting to see what the ACLU actually argues in the cases it filed today.

Posted by: Cayambe | January 17, 2006 11:57 PM

Cayambe,

Thank you for clearing that up. Now I'm curious to know if you and I had made a contract to keep our conversations private could you still "wear a wire". Wouldn't this give me an expectation of "shared" privacy?

Posted by: David | January 18, 2006 01:32 AM

Well David ... we would have to go back to Matthew, who actually has an education in law, for a good answer to that one. My best conjecture would be that this might justify a civil claim against me for damages attendent to my breaking our contract but the government would remain off the hook and you would still remain in the slammer as a consequence of the evidence against you from the wire.

There is sure nothing wrong with your thinking though. Very good questions.

Posted by: Cayambe | January 18, 2006 01:58 AM

Great to see you were in Malaysia. Since my 'signifcant other' is Malay I am there once or twice a year sometimes for one or two months at a time. I am always fascinated by their model of multi-culturism and of course their unique and so far successful combo of democracy, pluralism and islam. Shame the USA is so ambivalent towards Malaysia, due to decades of aggressive non-alignment under Mahathir I guess. As one of the few multi-cural, democratic islamic nations in the world, I would assume the USA, Britain, France, Holland, Belgium, etc would be knocking down their door with the question, "How do you do it?"

Posted by: Leonard N | January 18, 2006 07:37 AM

Well David,

Good question. And as Cayambe said I was still on my first cup (and as I mentioned earlier, a few years removed from my Criminal Procedure class).

Here's what I was quickly able to find for you. The leading citing case is U.S. v. Hoffa and although Cayambe had a very good formulation (as always), I would say it's not quite as bad as she thinks. Because simply because someone else can give away your privacy right, it doesn't mean that you possess the same privacy rights that they do. It simply means that you do not have a privacy right to expect that someone else will not squeal. You do, however, have a privacy right in the place or manner of the communication. So, the government cannot place a bug in your lampshade to hear the conversation between you and your friend. Because you have a privacy interest in being safe and secure from intrusion in your own home.

If, however, your friend decides to take what they're told and go to the government, you do not have a privacy expectation that this will not occur. The question is what privacy interest you are talking about.

In the FISA case, the privacy interest being examined is not that of your friend snitching. It is, rather, the content of your phone conversations (or at least, I believe that's at stake: information is scattered). But in the security of your calls you do have a protectable privacy interest. (And caveat: I do believe there is some exception for intercept of domestic communcations while intercepting foreign communications if it is believed that the domestic intrusion will be minimal, but would need to check to be sure).

Is this making sense? A little bit different formulation than I laid out above, I realize. But your question made me actually go back to caselaw. Portion of Hoffa exceperted for you below.

"In the present case, however, it is evident that no interest legitimately protected by the Fourth Amendment is involved. It is obvious that the petitioner was not relying on the security of his hotel suite when he made the incriminating statements to Partin or in Partin's presence. Partin did not enter the suite by force or by stealth. He was not a surreptitious eavesdropper. Partin was in the suite by invitation, and every conversation which he heard was either directed to him or knowingly carried on in his presence. The petitioner, in a word, was not relying on the security of the hotel room; he was relying upon his misplaced confidence that Partin would not reveal his wrongdoing."

Posted by: Matthew | January 18, 2006 11:21 AM

David,
Interesting isn't it? We are seeing a form of trickle down economics taking place here. Matthew spends a ton of money getting educated and its trickling down to you and I for free :o) Thanks Matthew!

Matthew, I think I kind of understand now where this goes. "Expectation" in general is parsed into its privacy components, place, manner, method, parties, etc. As the holder of the right, I'm held responsible for reasonably expecting privacy as to each and every component here.

Nonetheless, the evil dark part of me senses a structural weakness in this form of 4th amendment defense which favors the administration. My right exists only so long as I take reasonable precautions to maintain all circumstantial conditions to protect it. If I have, I am justified in my expectation; if I have failed in any one condition, then I cannot reasonably have the necessary expectation.

The administration has publicly admitted that it is tapping international phone calls by its own secret criteria and intends to continue doing so. In view of this, how can one possibly expect privacy in an international call? In effect, the President may not be able to touch my right directly, but he can certainly change my expectation and thereby eliminate it for his intended purpose.

This does further color the role of the FISA law. As I pointed out earlier, this law avoids this weakness by erecting a barrier based on the citizenship of a party or its equivalent for this purpose, i.e. permanet domestic residency. Therefore, if the statute applies to the President our expectation can be restored. If it doesn't we are back to no more expectation of privacy.

It really seems to me important to cling fairly tightly to the artful language of the amendment itself for its ultimate defense in this matter. It was after all placed in the document for the purpose of limiting excessive government intrusion into our private lives. To me, this outlook, this concern, is an essential element of what I label "conservative". There is nothing in the language itself about expectations. This is a product of the courts essential role in placing walls or boundaries between rights and powers. I hope they will take care not to give to the President the power move those walls as it chooses.

I suppose this is also why I see the 2nd amendment as I do.

Thanks for your answers Matthew. I really do appreciate them.

Posted by: Cayambe | January 18, 2006 02:17 PM

Cayambe,

Thanks for the kind words.

There is something, however, in the language about expectations. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..." The key word there is "unreasonable." What constitutes an "unreasonable" search? One that violates a sense of privacy which you expect to have.

Although very nice point on the tapping of international phone calls. It is true that if this environment was to continue, announced, for a significant period of time, that the Court would find that people had to come to adjust their expectations and therefore no right did exist.

This is also an issue on new technology breaks. The question arises, as new surveilance technology becomes available, does an individual's reasonable expectation of privacy diminish? One professor labeled this the, "Walmart Test." That, if you could get the gear at Walmart, then you should expect that someone could be using it on you. As concerte examples, this has arisen in cases of helicopters and high-powered lenses (have to expect those) and heat-signature devices to "see" the interior of a home (don't have to expect those). But it's a constantly moving target, built, as you astutely observe, by the continuous feedback of the current state of the world.

Posted by: Matthew | January 18, 2006 02:53 PM

Cayambe,

To add some substance for the unreasonable search / reasonable expectation of privacy link (these things really only make sense once they become applied to concrete situations).

The SC ruled that you have no privacy interest in your garbage (one of the "warrantless searches" that Chris Ford referenced last week). The idea is that you have no idea, when you put your garbage on the curb, if anyone is going to rummage through it. And any random garbage man is free to do so. Therefore, the search is "reasonable" and because of that, you as an individual have no "reasonable" expectation that this won't occur, i.e. reasonable expectation of privacy. In my mind, these things really spin out of control: there was one case where a guy shredded a bunch of documents, and then double-bagged them in thick, black garbage bags. The IRS picked them up, matched up the shreds, taped them together, and used them. I would argue that there's a difference between something being theoretically possible and having a reasonable expectation that it wouldn't be done, but the SC has spent its last 40 years eroding the 4th Amendment protections. So whatcha gonna do.

Posted by: Matthew | January 18, 2006 03:18 PM

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