Steel Mills and Surveillance

First, a big thanks to all the Debaters participating in the discussion of this important rights issue. For the most part, the conversation has been enlightening and insightful -- and even those who initially came out hurling abuse (and little else) at their opponents seem to have largely calmed down and begun to have a meaningful debate about the matter at hand. Huzzah!

Debater James J. Klapper provides this link that leads to the Supreme Court's opinion in Youngstown Co. v. Sawyer, a 1952 case challenging the legality of President Truman's seizure of the nation's steel mills to avoid a potentially damaging strike.

Klapper goes so far as to suggest that the entire Foreign Intelligence Surveillance Act (FISA) "is probably an unconstitutional intrusion on presidential powers and responsibilities." I'm not convinced that view is supported by the Constitution -- or by the Supreme Court, which actually recommended in a 1972 opinion the creation of structures like those that were later provided by FISA. (More on that case in a later post.)

In Article I, Section 8 of the U.S. Constitution, Congress is granted broad powers to "provide for the common Defence and general Welfare of the United States," whereas the President's powers, enumerated in Article II, are rather limited. He is expected to "take Care that the Laws be faithfully executed" and to "preserve, protect and defend the Constitution of the United States." Again, note that Congress has the responsibility to provide for defense of the country, while the president is in charge of defending the Constitution.

But back to the steel mills case.

This is the passage in the Supreme Court's opinion that jumped out at me:

We do not now have before us the case of a President acting solely on the basis of his own notions of the public welfare. Nor is there any question of unlimited executive power in this case. The President himself closed the door to any such claim when he sent his Message to Congress stating his purpose to abide by any action of Congress, whether approving or disapproving his seizure action. Here, the President immediately made sure that Congress was fully informed of the temporary action he had taken only to preserve the legislative programs from destruction until Congress could act. [emphasis added]

So not only are the circumstances different, but the action the president took is different. In the case of the warrantless surveillance of Americans, the administration only informed those Congress members who had to be briefed as per Bush's October 5, 2001 memorandum. Even then, it was done under such a veil of secrecy that those few members could not bring the matter before their colleagues without revealing classified information. Consequently, Congress had no opportunity to attempt a legislative remedy, such as extending the 72-hour limit or expanding the definition FISA uses for probable cause to include documented association with terrorists, like being named in computer files of a captured al Qaeda operative. While those few high-ranking members of Congress could express their dissent directly to the president, he had no legislative imperative to heed what they said.

All that in mind, the court's refusal to support an executive power grab in which the president informed Congress (and invited it to stop his action) seems to suggest that a power grab that leaves Congress helpless to act would be frowned upon, too.

The dissent in Youngstown eloquently explains the importance of the courts in such matters:

A sturdy judiciary should not be swayed by the unpleasantness or unpopularity of necessary executive action, but must independently determine for itself whether the President was acting, as required by the Constitution, to "take Care that the Laws be faithfully executed."

How is it asking too much of the president to require that he work with the other branches of government when it comes to putting wiretaps on Americans, rather than letting him use every trick in the book to try to avoid oversight?

By Emily Messner |  January 5, 2006; 1:15 PM ET  | Category:  Beltway Perspectives
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Once again, let's see how many of us can keep this debate in the realm of reason, and just ignore the ranters. Make points. Back 'em up. A child can do it.

Article II of the Constitution is very short. Most of it deals with how a president gets elected. The sole paragraph dealing with war powers reads, "The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

Of course, there is a mass of case law which fleshes this power out in more detail. But if the best instance of case law the defenders of Bush's wiretaps can come up with is "Youngstown Co. v. Sawyer," then they have a long road ahead of them. The ruling in this case, rather than offering a blank check to the executive, seems to set a standard for the exercise of extraordinary presidential authority that Bush has not met. One, the use has to be extremely limited, and two, it has to be made with the cooperation of the other branches.

Even if Bush believed with all his heart that FISA is unconstitutional, why did he not come out and say so rather than conducting secret end-runs around it? I think his clandestine behaviour suggests he didn't want a showdown over FISA's Constitutionality. He wanted to get away with bucking the law.

Do Bush supporters have any more cases they can use to back up their claims? Please be as specific as possible, because we're in the realm of details here.

Posted by: james | January 5, 2006 02:54 PM


One arguemtn I have heard repeatedly is that since the threat of Islamic Terrorism in the modern era is unprecedented, the President needs powers that are more flexible than his predecessors.

This is debatable, but Emily posits a much more important question. In my own words: Why were Congress and the courts denied a say in determining the legality of this program?

References to Supreme Court decisions only strengthen the argument that the Court has a legitimate say in the issue.

Posted by: Bullsmith | January 5, 2006 03:27 PM

Emily......what in the world did you read in that 1952 opinion? Here is what Justice Black actually concluded writing for the 6 to 3 majority:
"The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.
The judgment of the District Court is
Affirmed."

The judgment of the District court is previously described as:
"Holding against the Government on all points, the District Court on April 30 issued a preliminary injunction restraining the Secretary from "continuing the seizure and possession of the plants . . . and from acting under the purported authority of Executive Order No. 10340." 103 F. Supp. 569."

I'm sorry, but the court decidedly DID NOT decide in favor of the executive.

Further the Executive did argue on the basis of its broad powers. It's just that the majority opinion chose to limit its scope to decide this case on a more narrow basis. It is in the concurring opinions, Jackson's especially that we find the broad claims addressed frontally. These in and of themselves are not presidents but they certainly provide guidance as to how justices think about such issues.

Posted by: Cayambe | January 5, 2006 03:36 PM

Yes, let's remove any and all of the half-histories that keep getting introduced into this Debate. Whether from ignorance or deliberate misrepresentation, we keep getting historical arguments being made about Lincoln, Truman, and FDR (to name a few) that only tell about half of the real story, and when you actually take the time to check them, aren't fully true.
Is that the kind of argument you have to depend on to defend this president? Amazing the amount of misinformation that gets spread around whenever Bush is in hot water. And it's spread deliberately too. What a house of cards this presidency is in it's constant reliance on sophistry and lies.

Posted by: ErrinF | January 5, 2006 03:43 PM

Sorry for the typo. That should have been "precedents" and not "presidents" in the last sentence.

Posted by: Cayambe | January 5, 2006 03:45 PM

not too bright.

Hello rednecks, nice to see you.

Want a piece of me? Sorry, I'll be eating you today. People that have nothing coherent to bring to the table engage in name calling. Yes, liberal, conservative, party labeling is name calling....it allows you to ignore the facts. In order to create an effect I don't obey rules of decorum....that doesn't mean I don't understand them....nor am I a Bill O'Reilly who uses every trick in the book except honesty and ability to dominate, not lead a discussion....debate is predicated on a loser and a winner...dialogue presupposes that there is some areas of agreement...only people of ability actually have dialogue....others are debators....us vs. them...

We are using the "war" in Iraq to foist a change in leadership upon the citizens of the United States of America....

By the way, the only real "Americans" here are the Native Americans....the rest are immigrants.

We are having foisted on us an economic containment of a scarce resource by this administration as a war for a couple of reasons.

WAR POWERS: The ability to pass laws and create situations that would not occur during peacetime by a single party, the president.

IF WAR is declared you can do all sorts of illegal things and call them legal.

Wiretapping....if you want to foist a program on the united states citizens that takes it's rights away, you want to be able to monitor an unhappy citizen ship while you do that without dicking around with warrants....ala J.Edgar Hoover and the Kennedy file....and what was J Edgar against that he was in fact himself, and why did he scream so much about it...to hide the fact that what he said everyone else was doing he was doing...

Why did Vice President Cheney host a fund raiser for Tom Delay in Texas on December 3rd....is it because Tom Delay is honest, believe in supporting the constitution or because he's part of their team and Abramoffs?

Look the media, communication is controlled by governments trying to control the "story"

USSR tactics in the United States are reprehensible....real Americans want freedom of speech and their Bill of Rights intact....

not having some UN patriot ACTion foisted on them in the name of erasing habeus corpus.....we need to ream some crusty butts....do it.

Posted by: Whoa, there's some people in here that are actually well dare i say | January 5, 2006 03:49 PM

James - Indeed, Article II does go well beyond the superficial reading you give it in terms of unchallenged precedent of Presidential action in past conflicts, and case law. You seem only familiar with one case - "Youngstown" - brought up not by Article II defenders, but those saying Presidential powers should be weakened. (Which ironically quotes the Justice that contructed FDR's massive international and domestic wiretapping program when he was FDR's AG).

Emily - "How is it asking too much of the president to require that he work with the other branches of government when it comes to putting wiretaps on Americans, rather than letting him use every trick in the book to try to avoid oversight?"

Separation of Powers deems it is not a good idea for the President to walk into Supreme Court chambers and "work with them" and give them "invaluable advice and oversight" of their pending decisions. Nor is it a great idea for Supreme Court lawyers to walk into the Senate well and inviegh on which votes are favored and which are opposed by the August Justices.

Similarly, those that favor a "mother may I?" game strategy where a President never does anything without SCOTUS or Congressional advise and concent are disappointed by reality. Congress tries to encroach, but have usually been stopped by the Constitution's specific limits on them backed by court decisions...SCOTUS has always said they have absolutely no business in any Presidential advise and consent role since they function as an apellate court. Never has a President called SCOTUS into the Oval office saying "I'm planning on doing "X" and need your support", nor collaborated throght intermediaries to negotiate deals and other functions that would destroy the separateness and independence of the Court.

What the Executive does do is retain copious lawyers, at considerable expense to the taxpayers, both at the WH and at Justice who are paid to advise on what will fly constitutionally and what will not. And since Congress has a role in laws and funding affecting the Executive and it's departments, Congress or at least its leadership (in cases of war tactics or classified programs where the whole body has never been trusted to keep confidence since Revolutionary days) gets updates on what the Executive is up to, but no power under the Constitution to veto Executive action by pretending Congress is above the Executive in authority.

Posted by: Chris Ford | January 5, 2006 04:12 PM

Right you are, Cayambe! Wow, my internal wires must have gotten really crossed on that one ... my only excuse is that I'm a bit distracted that I'm less than 48 hours away from a three-week trip to Southeast Asia and I haven't even done my laundry yet. The misstatement is fixed -- thanks!

Posted by: Emily Messner | January 5, 2006 04:18 PM

Have a really good vacation Emily. You deserve it.

Posted by: Cayambe | January 5, 2006 04:24 PM


Chris Ford,

There is a pre-existing law that says the President may not authorize domestic spying without a warrant.

If the President feels the law is impractical he is free to pressure Congress to change it. In public or in private. But he cannont rewrite it himself. He must indeed ask "mother may I" to do that.

If the President feels the law is unconstitutional he is free to challenge it in court. Again, in public or in private. In the meantime, he may or may not have the right to ignore it, but has no right to appoint himself the final arbiter.

You ignore the fact that, by admission, he chose to ignore existing law, choosing not to seek remedies that are, according to your own arguments, plainly available to him.

p.s. His lawyers are not neutral advisors when asked to determine how powerful their boss is, and their advice is no substitute for oversight.

Posted by: Bullsmith | January 5, 2006 05:02 PM

ErinF - "Yes, let's remove any and all of the half-histories that keep getting introduced into this Debate. Whether from ignorance or deliberate misrepresentation, we keep getting historical arguments..........Is that the kind of argument you have to depend on to defend this president? Amazing the amount of misinformation that gets spread around whenever Bush is in hot water."

ErrinF, indeed, for you, it is a pity to let the facts and the history of Presidential actions and Court cases to get in the way of your emotions in your anti-Bush crusade.

After all, it's so much easier for a Lefty to "FEEL" than to look at the facts and "THINK".

Jackson is pretty well up there in the pantheon of SCOTUS judges from his work with FDR's wiretapping, his War Board law, Nuremberg, and later defining limits on Presidential war power.

To understand Youngstown, you have to go back to the history that ErrinF dislikes so much when Jackson was setting up the wiretapping system and also bringing the case for a War Board with awesome powers over the US economy. He was one of the ones who led the argument to Congress that the threat in 1941-42 mandated that laws be enacted for America ration and control goods, fix prices, get no-strike pledges, and order civilian workers into war effort jobs.

But Jackson argued that Truman's war powers alone were not enough, the jeopardy to the nation in the Korean UN police action not enough to justify intervention in a classic labor management dispute, which even during WWII - though the US did nationalize the bulk of coal mines to avert nationwide strikes - it did not claim the right, by Executive or Congress, to essentially draft workers and make them slave laborers (outside the military draft, of course).

And of course, Robert H Jackson is the Justice that presciently warned in a 1949 dissent that liberal activist judges taking an absolutist position of civil liberties to the detriment of the American people and the Constitution as a whole in the case of a pro-Nazi priest who caused a riot in Chicago (Terminiello v. Chicago):

"The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact."


Justice Goldberg refined Jackson's maxim further in a draft dodging case:

"The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against invasions of individual rights, it is not a suicide pact."

Posted by: Chris Ford | January 5, 2006 05:15 PM

Thanks Bullsmith for the response to Chris Ford. My thoughts exactly.

Another response: I wasn't interpreting Article II. I reproduced the entire (and only) paragraph which mentions war powers, complete with 18th Century Capitalization. There is nothing else in the text of the Constitution itself which speaks to this matter.

I should have added that there is probably Civil Code as well as case law which further defines presidential powers, and I'd welcome any examples from Code which back up the president's claims of powers to either circumvent law or the Constitution at his discretion.

Chris Ford is absolutely right that I don't have any in-depth knowledge of Code or case law. I was concurring with Emily that the case brought up by Klapper did not actually serve his argument well at all. That's why I'd like anyone, including Mr. Ford, to point to law or cases which argue the president's case better.

Posted by: james | January 5, 2006 05:25 PM

Bullsmith - "There is a pre-existing law that says the President may not authorize domestic spying without a warrant.
If the President feels the law is impractical he is free to pressure Congress to change it. In public or in private. But he cannont rewrite it himself. He must indeed ask "mother may I" to do that."

A portion of Congress and many Lefties and extreme libertarians think all the Presidents national security decisions are indeed predicated on "Mother may I" standards, beholden to the other two branch's "superior" authority.

Every President though, since FISA was passed has said the law cannot be applied in an unconstitutional manner and usurp Article II Powers that are the Executive's alone in dealing with foreign powers or agents of foreign powers. 8 court decisions so far have sided with the Executive.

The best solution for the Leftists and civil liberties absolutists may be a Constitutional Amendment that declares what protections enemies and traitors they advocate for need to be given, bar any government agency from trying to detect a plot directed inside the USA by enemies from outside (like 9/11), and revise Article II to put national security decisions with who the Lefties and libertarians think best - lawyers or partisan-riven committees. Then get your buds in the liberal Democrat ranks to push your Amendment.

Good luck! Can't wait to see the results. (I speculate it would be even less Lefties in power).

Posted by: Chris Ford | January 5, 2006 05:38 PM

Chris,

Interesting mini-history of Robert H. Jackson. Sounds like a predecessor of Scalia.

But what does Jackson have to do with this case (NSA) specifically? Certainly he argued in general for the rights of the state over the rights of the individual, but has he authored any decisive opinions that have direct bearing on this case? The fact that there have been judges who, rightly or wrongly, sided with government authority to suspend Constitutionally guaranteed rights does not mean that the SCOTUS has affirmed in an unquestionable way the broad powers of the executive which you support.

And, judging from recent decisions concerning detainees, the current SCOTUS is not going give Bush an easy pass on this. That's why I think the president is going to have to make a strong case. So far he hasn't.

Posted by: james | January 5, 2006 05:45 PM

Chris Ford-

"Every President though, since FISA was passed has said the law cannot be applied in an unconstitutional manner and usurp Article II Powers that are the Executive's alone in dealing with foreign powers or agents of foreign powers. 8 court decisions so far have sided with the Executive."

I would very much like to access all 8 cases. Any links or information you could provide would be greatly appreciated.

Regardless, the heart of the FISA matter is not how the President engages with foreign powers, but rather how he engages with domestic ones, namely American citizens. Though the President certainly has a right to access the phone wires of Al Quada in America who have coincedental citizenship (born here), he still has to meet a burden of proof (that does not involve merely his own legal counsel) that these individuals are, in fact, "agents of foreign powers".

I doubt, for instance, that you would side with the President or the prior 8 court cases if the President decided that the Democratic Party (or the Republican Party) were "agents of foreign powers" and thus had absolute powers over them that were unchecked by either the Judicial or Legislative branches.

Posted by: Will | January 5, 2006 05:49 PM

One more thing Chris,

Knock it off with the "Lefty" straw-men and stay on topic, please. Any of us could go on about "wing-nuts" and "fascists" all day long, but it wouldn't be much of a debate.

Back to the topic: The 8 cases you mention. What are the details on those? Are any of those cases comparable to this one? If so, bring it on and let's talk about that.

Posted by: james | January 5, 2006 05:52 PM

Chris Ford writes:

=============================================
"Every President though, since FISA was passed has said the law cannot be applied in an unconstitutional manner and usurp Article II Powers that are the Executive's alone in dealing with foreign powers or agents of foreign powers."
=============================================

Yes, but the question is, _are_ the people that the president wants to spy on agents of foreign powers (in which case he has Article II constitutional authority to spy on him) or not (in which case he doesn't have such an authority)? FISA exists as a court in which the executive proves that it has constitutional authority to spy on a particular person, because of that person's identity/activities/association with a foreign power.

We need to distinguish between the authority to act within a certain sphere, and the authority to define the limits of that sphere. They're two separate things.

I don't think that the fact that the executive has the authority to deal with foreign agents can possibly mean that it also has the exclusive authority to say who is and who isn't a foreign agent.

If the authority to deal with a particular field included an exclusive authority to define the limits of that field, then every constitutional power could, in effect, trespass upon every other one. The executive could simply claim that an issue of interstate commerce was really a military issue. The Congress could claim that a particular military issue was really a matter of interstate commerce.

It seems to me that in dealing with issues that, by definition, occur on the border between one branch's authority and another's, no branch should, if possible, have an exclusive say on the definition of the issue, because then in so doing, it would usurp the powers of the other branch. In practice, though, when it's unavoidable that one branch's claims conflict with another's, and one branch has to have the final say, the judiciary is the final arbiter, not the executive.

If the actual practice of spying on foreign agents were somehow methodologically or logistically different from the practice of spying on innocent citizens, then the executive might have a claim that FISA interfered with its constitutional prerogatives. But since the actual practice, logistically and methodologically, is exactly the same, whether you spy on foreign agents or churches or political parties, there has to be some process, external to the executive branch, of determining which people the executive actually does have Article II authority to spy on, and which people it doesn't.

Thoughts? (And corrections, from those of you who study Constitutional law?)

Posted by: Beren | January 5, 2006 08:05 PM

I am compelled by the above reasoning.

Posted by: Will | January 5, 2006 08:56 PM

Beren - "FISA exists as a court in which the executive proves that it has constitutional authority to spy on a particular person, because of that person's identity/activities/association with a foreign power."

You presume that Congress can overide Article II and force the President to PROVE he has reason to go after each enemy agent by getting a court blessing for each instance. This is really no different than Congress passing a law that says before each use of force on the enemy on a battlefield, the President must have a lawyer in robes say "Omni Domni" after reviewing the President knows for sure there are no innocent or possibly guilty Americans inside prone to be killed by an A-10 warplane, say, in an Islamoid terror training camp in Afghanistan.

And each President has stated that FISA is constitutional only to the extent it does not infringe on Presidential war powers, because Article II clearly wanted no meddling on the Executive to weaken and curtail Execcitive activities with a range of limiting laws - especially those adding a 3rd check of getting a room of lawyers to assent to any Executive Action.

FISA is not a Constitutional Amendment. It is not sovereign over the Constitution as it exists now.

Many on the Left wish to weaken and cripple the Presidency and abilities of the Commander in Chief in the same way the Left seeks to weaken and cripple America.

And the idea that the Presidency must be weakened and paralyzed and separation of powers dispensed with so the Left can check the all-powerful all evil Nixxon-Bush-Hitler Imperial Presidency and the more meddling and checks the better is loony, from an institutional perspective, just ignoring for a moment it is blatantly unconstitutional. The "more checks on every Branch the better" notion is also nutty. Shall the President walk into SCOTUS chambers and approve or disapprove of their deliberations as a check on the sole authority of the SCOTUS? Shall SCOTUS walk into the Senate well and say they are there as a needed check to the Senate's raw budget-making power? Shall Congress pass a law saying they can overrule Supreme Court votes with a supermajority vote of their own as a check on SCOTUS's "unaccountable power?"

I think you have a mindset that if Congress passes a law, any law, the SCOTUS or States or President must follow it, and if they disagree, then they must be paralyzed and not act, until "lawyers in robes opine". What actually has happened is Presidents from Jefferson through Bush I have ignored either Congress or the SCOTUS or directly defied them in instances where usurpation has been tried. In all those cases, the recourse is to try and impeach the President for rejecting laws the President deems unconstitutional or leave the decision to the will of the people. And we have periodically gotten rid of Reps, Senators, and Justices through impeachment, though they are usually allowed a face-saving resignation before a vote (Honest Abe Fortas, Randy Cunningham, etc)

Will -

"Though the President certainly has a right to access the phone wires of Al Quada in America who have coincedental citizenship (born here), he still has to meet a burden of proof (that does not involve merely his own legal counsel) that these individuals are, in fact, "agents of foreign powers"."

You are in the law enforcement, ciminal rights, burden of proof always on the state - mentality. We aren't looking for criminals. We are hunting enemy. We don't know if an Islamoid calling the US is calling an agent Islamoid or just his 2nd cousin who married an infidel, works in a 7/11 has the same rights as citizens as a resident alien, and has no involvement with terror. But you have to look, with no "burden of proof" to see if all 6 of 6 unknown phone numbers this Islamoid called from Waziristan are known miraculously somehow by the unknown number to be "agents" - and surely not American citizens - or you won't look. That is very flawed logic. The LAST people I want blocked by liberals, the ACLU from being found as acting as Islamoid enemy are American citizens.

The very worst Islamoids are the US traitors that have been involved in 75-80% of Islamoid attacks directed against Americans and UK citizens who have been involved in 100% of the attacks against Briton. I hate traitors worse than I hate an honest foreign enemy like Atta. And see no reason why the American people would wish to shield traitors from being found out, or be reluctant to have the government "vet" who in a terrorist's circle are innocent acquaintances and who are co-conspirators.

On the 8 cases, some have been discussed on powerline.com and the volohk conspiracy with findlaw links to the 8. Check them out yourself, as I lack time to prepare abstracts.

James: Knock it off with the "Lefty" straw-men and stay on topic, please.

Oh, I stay on topic. I suppose I could say "liberal Democrats" instead, but that would be an insult to the half of liberal Democrats that actually are patriotic and don't hate America.

Posted by: Chris Ford | January 5, 2006 09:33 PM

Chris Ford's usual misinformation as a Bush apologist. Any historical analogy from him is highly questionable due to his bias. His 'on topic' post was his usual assortment of off topic doublespeak. He sees traitors where there aren't any, and jammers on and on about Lefties incessantly. He calls everybody who opposes him a Lefty, and does it so in the manner of the boy that cried wolf. Replace the word 'islamoid' with 'witch' in his post if you want to see his true McCarthyite nature,
I for one think Chris Ford and his kind would ruin the War On Terror by turning it into a hysterical witch hunt. Never have I encountered somebody so willing to sacrifice the rights of others for their own cause. In this case, it's the civil rights of his fellow American citizens he's so willing to toss aside. Again and again he argues AGAINST the Constitution. Now that's traitorous! Funny how he describes people who want to defend the Constitution as 'hating America'. The one full of hate is you, Chris Ford, hate for the US Constitution and hate for your fellow American citizen. Whether it's torture, warrantless searches, or anything else that goes against the Constitution, Chris Ford will be there to argue for it! He's got witches to hunt and windmills to fight, and will gladly trample over all our rights in his quixotical battles against the Phantom Lefty Menace.
At least he serves as a reminder to all of us to keep vigilant against his element in times like these. And here's a reminder to Chris Ford: McCarthy lost.

Posted by: ErrinF | January 5, 2006 10:27 PM

Oh dear Christopher, you read your hero Mr. Jackson all too selectively. In the very Youngstown opinion you cite, and for the benefit of those who wonder how it relates to the current debate, let us examine his own words themselves.....and yes, this is the same gentleman who was FDR's Attorney General, a very good "lefty" indeed.

His very first paragraph....
"MR. JUSTICE JACKSON, concurring in the judgment and opinion of the Court.
That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies - such as wages or stabilization - and lose sight of enduring consequences upon the balanced power structure of our Republic."

He opens with a shot at the doctrinaire textualism of a Mr. Scalia and support for a broad but cautious view of presidential powers. Tell me Mr. Ford, is this a "conservative" expression or a "liberal" one? Now move to the last sentence which focuses upon the dangers of disturbing the Constitutional checks and balances. Is this "conservative" or "liberal" position?

Already, Mr. Jackson is putting us on notice that while he is going to consider the President's admittedly broad powers, it will be within the limits imposed by the entire Constitution. I personally agree with that and would assert that this view is an essential element of a "conservative" political philosophy.

Now for those of you who are so worried about Roberts and Alioto in the years to come, you are looking at a case history of what can actually happen when a loyal political appointee moves to the independent world of the Supreme Court and his job changes.

He re-emphasizes the point with the following:
"The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context."

This is for those who would take Article II as being the single necessary and sufficient justification for the President's NSA action. Tell me Chris, would you agree with Jackson's formulation or not? Is this a conservative view or a liberal one?

Now lets look at how he approaches a Constitutional claim to presidential authority:
"2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

In the present case Congress has acted, and FISA is the Act expressing its specific will in this matter. Further, there is nothing in the AUF that implicitly or explicitly disables its expressed will in this particular subject. Therefore as Mr. Jackson says, his "claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."

Here he takes another shot at Scalia, Thomas, and Bork:
"I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications instead of the rigidity dictated by a doctrinaire textualism."

Ay yai yai, Dios Mio! Is this guy a raving liberal or a raving conservative or what? Chris, do you really think an arch-conservative like Scalia is going to find in the literal text of Article II the authority this president is claiming? Or will he chuck the plain text and his principles along with it, and read into it things not said?

I'm not going to go further with Jackson's opinion because I have already posted large pieces of it in prior threads and I would still absolutely recommend to everybody that they read it in its entirety. It will not tell you how the court might rule on the NSA inspired issues, but it will certainly tell you how easily they will dispose of the nonsense offered by so many in rhetorical support of the President's position.

But I will offer this as something new. If the court, as it usually does, looks for some basis to narrow the scope of its decision I think it may very well find one, as follows.

I think that they might well find that the FISA statute, in requiring a warrant on an international communication where a US citizen is a party to it, is an unconstitutional infringement on the Presidents authority in managing foreign affairs. I think the might get there by recognizing that the 4th amendment right here is the right to privacy, that the right to privacy is conditioned on a reasonable expectation of privacy, an international communication is always exposed to international interception by any nation having access, and therefore there can be no expectation of privacy. Now if the administration is only doing what they claim they are only doing, this should suffice.

How 'bout that one folks? Would that dispose of the issue to your personal satisfaction?

Posted by: Cayambe | January 5, 2006 11:05 PM

Cayambe-

That works for me. The largest security concern for most of us was that Al Quada (or generic known terrorist) would call the United States and due to existing legal limitations we would not be able to monitor this call. These types of scenarios would seem to be contrary to our national security interests.

The largest legal/civil rights concern is that if the Judicial and Legislative branches excercise their oversight in merely a symbolic and ineffective manner, then the President would have infinite latitude to invade the privacy of political opponents and international terrorists alike.

Chris Ford-

I have said it in many threads relevant to this discussion that I do not agree with any law enforcement method that is so stringent it infringes on anyone's ability to monitor incoming telephone calls from known foreign terrorists. If the NSA can prove, to a judicial body, that Osama Bin Ladin is on one end of the telephone, then that should be sufficiently reasonable evidence that this country has a national security interest in the receiving end of the telephone call. If the NSA cannot prove that Osama Bin Ladin is on the other end of the telephone, then Osama Bin Ladin is probably not on the other end of the telephone.

Does anyone think that someone who receives a phone call from Osama Bin Ladin is not guilty by association? Does anyone think that if Osama Bin Ladin called the wrong number and inadvertently dialed your home line and said "Ahmed how are we doing on that bombing thing" and you replied "Hello? Is this a prank call?" that it would be a breech of privacy? I dare to say no. Anyone disagree?

The compelling point that I thought Beren was trying to make (stop me if I misrepresent you Beren) is that if the President deserves infinite latitude in dealing with "agents of foreign powers" he does not ALSO get to determine what type of individuals constitute "agents of foreign powers". If the President had unquestioned authority to a) spy on agents of foreign powers and b) codify what an agent of foreign powers was he could determine that "Republicans" were agents of foreign powers and then spy on them. Surely this is not a scenario, however unlikely, that you would encourage.

I know you get frustrated with me because I seem to slow you down, or miss your point frequently, or because I'm just plain stupid. In the past you have accused me of acting insincerely dumb just to waste your time. I assure you this is not the case. I am stupid.

Regardless of how stupid you think/know I am, I enjoy our give/take and I would greatly appreciate if you would at least humor me with answers. All apologies for the brain I inherited from others.

Posted by: Will | January 6, 2006 12:10 AM

The terms "lefty" and "islamoid" are clear indicators of the intent of the people who bandy them about. They are semantic devices that mean nothing, and therefore, can add nothing to the debate.

left wing

• noun 1 the radical, reforming, or socialist section of a political party or system. with reference to the National Assembly in France (1789-91), where the nobles sat to the president's right and the commons to the left. 2 the left side of a sports team on the field or of an army.

-- DERIVATIVES left-winger noun.

Please note the use of the word "or" as opposed to "and" in the definition. A leftist (Lefty) can be any one or any combination of the three - radical, reforming, or socialist.

Hmmm. Radical and reforming - sounds like the Republicans to me.

After all, isn't the goal of a political "conservative" support the status quo? Wouldn't reform be a radical idea under this philosophy? Isn't it the "conservative republicans" who call for the radical reform of the "Democrat" government (clearly responsible for the status our nation achieved in the latter two-thirds of the 20th century)?

conservative

• adjective 1 averse to change and holding traditional values. 2 (in a political context) favouring free enterprise, private ownership, and socially conservative ideas. 3 (Conservative) relating to a Conservative Party. 4 (of an estimate) purposely low for the sake of caution.

• noun 1 a conservative person. 2 (Conservative) a supporter or member of a Conservative Party.

-- DERIVATIVES conservatism noun conservatively adverb.

republican

• adjective 1 belonging to or characteristic of a republic. 2 advocating republican government. 3 (Republican) (in the US) supporting the Republican Party.

• noun 1 a person advocating republican government. 2 (Republican) (in the US) a member or supporter of the Republican Party. 3 (Republican) an advocate of a united Ireland.

democrat

• noun 1 a supporter of democracy. 2 (Democrat) (in the US) a member of the Democratic Party.

I haven't read anyone here pushing for socialism, so the only leftists here must be the "conservative republicans".

"Islamoid" is vulgar, rude, and an inflammatory affront to a religious sect. How cheap.

Sheesh. Language - not a goddamned thing you can do about it. (Thanks to the Constitution).

Also, what's up with the repeated assertions that some contributors to this blog want to "weaken" our country because they don't support the every whim of an apparently out-of-contro, maniacal cabal?

maniac

• noun 1 a person exhibiting extremely wild or violent behaviour. 2 informal an obsessive enthusiast.

-- DERIVATIVES maniacal /mnik'l/ adjective maniacally adverb.


cabal
/kbal/

• noun a secret political clique or faction.

-- ORIGIN Latin cabala 'Kabbalah' (its original sense in English).

The only way to weaken our country is to upset the balance of power. No threat is as great to the core of what is "American" - not terrorism, not even direct, frontal military assault.

Bush and his cabal are trying to upset the balance of power, and anyone who supports this agenda could, arguably, be accused of "weakening" our country.

And finally, what is "America" or "American"? It's not a shape on a map, it's not a flag, and it's not subject to individual definition. "America" is, and can only be, the government established by the Constitution of the United States of America and "Americans" are those goverened by it.

Bush is doing an end-around the system. To a supporter of balance in our government, the motives of such a maneuver can only be viewed with suspicion and alarm.

Posted by: Swollen Spleen - geting ready to vent | January 6, 2006 12:46 AM

Cayambe,

You close with an interesting idea. I haven't finished reading the FISA statute, but I think I'm inclined to disagree with your prediction.

What the FISA statute defines (and therefore regulates) is 'electronic surveillance, which is in turn defined as:
"the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes."

So if it turns out that international calls don't involve a reasonable expectation of privacy, that would mean that, in applying FISA to those calls, the court had incorrectly interpreted the statute, but it wouldn't mean that the statute was unconstitutional, would it?

Will,

Thanks for expressing so clearly what I was trying to say.

Posted by: Beren | January 6, 2006 01:52 AM

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


Robertson says Sharon's stroke is God's punishment

http://www.guerrillanews.com/headlines/6922/Robertson_says_Sharon_s_stroke_is_God_s_punishment
Thu, 05 Jan 2006 14:06:31 -0800

Probably the funniest thing ol' Crack-Pat has said in recent history. What's scary is the number of people who take him seriously, and probably find this statement accurate.

It will be interesting to see if Sharon's push towards withdrawing from occupied territories will be derailed. Hopefully Israel's population is as tired of the conflict as their Palestinian neighbors.
[Posted By Shogo]
By Associated Press
Republished from KARE 11
Never afraid of sounding like a loony bastard, Pat Robertson sticks any and all feet in the immediate vicinity into his gaping maw.

The Reverend Pat Robertson says Prime Minister Ariel Sharon's massive stroke could be God's punishment for giving up Israeli territory.

The founder of the Christian Broadcasting Network told viewers of "The 700 Club" that Sharon was "dividing God's land," even though the Bible says doing so invites "God's enmity."

Robertson added, "I would say woe to any prime minister of Israel who takes a similar course."

He noted that former Prime Minister Yitzhak Rabin was assassinated.

Robertson said God's message is, "This land belongs to me. You'd better leave it alone."

Posted by: Che | January 6, 2006 05:35 AM

A question that I don't know the answer to is this: Was the 1978 law that established the FISA court, signed into law by the President at that time? If he did, does the fact that the Executive agreed to this law at that time affect the Executive's claim now that it is unconstitutional? Or is the President claim that what he is doing is outside of the law?

Posted by: MH | January 6, 2006 06:54 AM

Again, its interesting how the Bush supporters are abandoning "original intent" in favor of a "changing times" argument that resembles "living constitution". And just before the Alito hearings too. In Federalist Paper No. 69, Hamilton wrote that making the president commander-in-chief "would amount to nothing more than the supreme command and direction of the military and naval forces, as first general". The purpose was to keep civilian control of the military, rather than to militarize the executive branch. Likewise, the notion that the President is the "sole organ" of foreign policy that evolved from Sutherland's opinion in Curtis Wright, and which Sutherland wrenched from the power to receive ambassadors and other ministers, is inconsistent with the importance that the Framer's intended in giving that "power" to the President. Hamilton, again, writes that the authority to receive ambassadors "is more a matter of dignity than of authority. It is a circumstance which will be without consequence in the administration of the government".

The failure of the Congress to declare war is also significant: In the prize cases that arose from undeclared French Naval War of 1794, the Marshall court held while Congress could authorize the use of force short of war, such wars were "imperfect wars" that did not invoke the full range of war powers. In the prize cases that came out of the War of Northern Agression, the court placed emphasis on the fact that the Congress later ratified the unilateral acts taken by Lincoln. Similarly, in Propper v. Clark, the Court emphasized that the invocation of emergency powers by Roosevelt prior to the outbreak of WWII was later ratified by Congress. Thus, the Courts over the years have repeatedly indicated that if the circumstances require immediate action that strays into the sphere of Congress or which contravenes existing law, the President still has to get Congressional approval.

Posted by: MikeDeal | January 6, 2006 09:37 AM

Cayambe,

Thanks so much for an enlightening and insightful post: it's been a few years since I read the concurrent authority / twilight language which seems very apropos in the current situation.

I do agree with you that if this makes its way up to SCOTUS, they'll duck the question of FISA's constitutionality and try to resolve via other means. However, your idea of a new interpretation of the 4th would be overly broad for them. Granted, the trend over the last 50 years has been a steadily diminishing reasonable expectation of privacy, but to just completely void it if you were dealing with a separate nation would be fairly radical, even under that trendline.

But again, nice contribution.

Posted by: Matthew | January 6, 2006 09:57 AM

Chris Ford said:
"On the 8 cases, some have been discussed on powerline.com and the volohk conspiracy with findlaw links to the 8. Check them out yourself, as I lack time to prepare abstracts."

Chris Ford meant:
"On the 8 cases, I have no idea of what they are or what they say but someone else said they said they supported executive power and that there were 8 of them. So I repeated it here. Go away."

Chris, if the length and number of your posts indicate that you lack anything, time is not one of them.

Posted by: Matthew | January 6, 2006 10:24 AM

Another great focused discussion.

"You are in the law enforcement,
ciminal rights, burden of proof always
on the state - mentality. We
aren't looking for criminals. We
are hunting enemy."

Yah, ok. Who declared marshall law and tossed the constitution out the window? Isn't there supposed to be a presumption of innocence? Oh, and what about that whole freedom of association thing..?

"The failure of the Congress to
declare war is also significant.."

Heartily agree.

SLOTL (Supreme Law of The Land, ie, the C.)
Art. 3 Sec. 2:2
"In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Doesn't this indicate that is is Congress who holds the ultimate power, since the rulings of SCOTUS are (in theory) "under such Regulation"..?? Why not, since it seems to be plain english?

Posted by: Not a Constitutional lawyer | January 6, 2006 10:32 AM

Something sparked by the last post quoting the following:
"You are in the law enforcement,
ciminal rights, burden of proof always
on the state - mentality. We
aren't looking for criminals. We
are hunting enemy."

Which of the two, criminal or enemy, would you classify Jose Padilla as? Or both? Neither?

Posted by: Matthew | January 6, 2006 10:37 AM

Cayambe,

Thanks from me too for the clarifications re: Jackson. Clearly he is/was not a predecessor to Scalia.

Both you and Matthew make good points about what SCOTUS might do with this situation. I agree that this court likes to narrow-down cases to avoid making direct up or down Constitutianality decisions. And while I hope that Matthew is correct that they won't narrow the range of reasonably expected privacy, I won't be too surprised if they do. I think we can count on Scalia, Roberts, Alito (if he's there), Thomas, and perhaps Ginsburg to support the narrowing of privacy expactations. Stevens and Kennedy will probably not. As for Souter, O'Conner (if she's still there), and Breyer, it will probably depend on details that we can't predict now. In any event, this has been one of the more difficult courts to make predictions about, even at late stages of a case.

As for Mr. Ford, he seems to have gone back to his old ways. He's also declined to talk about the 8 FISA cases that have gone before SCOTUS, even though that's been his best opportunity to make a stronger case for his opinions. Can anybody else, on either or no side, give us some info on those cases? We really should consider them at least. Thanks!

PS. If anybody knows a conservative or pro-Bush person with basic debating skills, please encourage them to join in here. The other side needs better representation than it's had so far.

Posted by: james | January 6, 2006 10:39 AM

Matthew -
What's with all the picking? You talk about others not contributing, but all I mostly see from you are attacks on your fellow debaters just because they don't believe the way you do. Your real quick to call someone ignorant when you really need to take a long, hard look in the mirror.
Truth is the current situation can't be compared to historical ordeals because the characteristics have changed dramatically. Part of the reason for the Congressional opposition of the Bush Administration's actions is our current conflict does not have a near end in sight. I understand the concern over abuse of power, but I don't believe it has happened. The President acted in "good faith" while ensuring our homeland did not fall victim to further attacks of cowardice from terrorists.
There are Democrats in Congress who are looking for a reason to destroy the President and anything he attempts to establish. Not all, but some. Instead they should be supporting and aiding him so our nation can be more effective as a whole.
Still, I think a bigger deal is being made of this than necessary. Our rights are not in jeopardy. If anything, we are better protected and I feel safer knowing that.

Posted by: Alex Ham - America's Hero | January 6, 2006 10:45 AM

Matthew,

So little has come out about any hard evidence against Padilla that it's hard to make any sort of judgement about him. It's seems likely that he had al-Qaeda ties, and plausible that he was working on some sort of attack on the US. But until some facts, as opposed to administrative assertions, become more available I can't call him anything but "the accused."
If Padilla is found guilty of both the al-Qaeda association and of direct involvement in a conspiracy to attack the US, then there's no question he's a criminal from multiple angles and would probably be found guilty of treason, which carries a death penalty. At that point, would an "enemy" tag be necessary? It might even muddy the waters with 5th Ammendment issues ("nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb...").

Posted by: james | January 6, 2006 10:52 AM

james,

I mention the point to highlight how fungible these things are. Two weeks ago, Padilla was, "the enemy" and hence, holding him without charges or review was deemed acceptable (per DoJ). Today, he is labeled, "a criminal" and his rights now inure to him. Obviously, these things are not black and white. One cannot escape civil liberties discussions by simply stating that, "Well, we're just going after the enemy. The criminal justice system has nothing to do with it."

Apparently, it does.

Posted by: Matthew | January 6, 2006 10:58 AM

Emily, you were quite right to question Mr. Clapper's somewhat absolutist view of the powers of the Presidency.

If there is one, overarching theme that comes out of a thoughtful study of our Founding Father's mindset on the establishment of a division of powers in our government, it was their highly sensitized suspicion of placing too much power into the hands of one man or one part of government.

Indeed, their aversion to granting such power was evident in their every act and speech and was grounded in the harsh treatment they had received at the hands of King George. Isn't it ironic that now some two centuries later, we have another King George of sorts who cavalierly arrogates unto himself executive powers that can nowhere be found in the Constitution?

The odd thing about all of this is that all of the feverish wiretapping they are doing is not likely to have an impact one way or another in preventing another attack. As an appropriate analogy, all of the intelligence in the world that we had on the likely effects of Hurricane Katrina--which was far vaster, far more specific and more accurate in its context and far more meaningful in its accumulation than anything Bush is likely to come up with these wiretaps--was not sufficient to save a single life or to achieve even the most basic levels of preparation in advance of that event--an event we knew was coming days in advance.

The point is, this isn't about protecting us from another attack. It is about establishing almost absolute power in the office of the Presidency. What next in the name of protecting us from the next attack--declaring martial law and calling off the 2008 Presidential election?

Posted by: Jaxas | January 6, 2006 11:12 AM

One other salient point I would make concerning this subject: It is highly likely that on September 10, 2001, George W. Bush had more intelligence leading to the liklihood of a terrorist attack using commericial airliners, all without benefit of the oppressive tactics he is now using. Yet, in that instance, he refused to act.

He cannot come to us now all contrite and all atwitter with alarm telling us he has to have this unchecked power when in point of fact, the first attack occurred not as a failure of intelligence, but upon his failure to react to that intelligence.

What George W. Bush wants is what Dick Cheney wants. Imperial powers. Trust us, they say. We will make the right decisions. Well, we did trust you in March of 2003. And you made stupendously stupid decisions.

No mas.

Posted by: Jaxas | January 6, 2006 11:21 AM

"Truth is the current situation can't be compared to historical ordeals because the characteristics have changed dramatically"

This is EXACTLY why we are supposed to follow a "rule of law"; it's not a legitimate excuse to dump the constitution. If our system is so much better than the other guys, how come we have to keep making up new rules all the time to cope with these "extenuating" circumstances?

I didn't realize before today that the Congress was responsible for defending the homeland, and the President the Constitution. Clearly things are waaaay out of whack in Washington.

Posted by: Not a Constitutional Lawyer | January 6, 2006 11:24 AM

Not a Constitutional Lawyer -
That's the beauty of a document like the Constitution. It's interpretable and adaptable. Our Founding Fathers knew things would not remain the same, and created the Constitution as such.
No one has "dumped" the Constitution. I interpret it differently than you apparently. Drastic situations call for emergency action.

Jaxas -
Why do you continue to accuse Bush of failing to prevent 9-11? If it was going to be prevented, action should have been taken long before Bush took office. Like when Ollie North addressed the Bin Laden issue to a Senate Committee where Al Gore ridiculed North's fear of being killed by Bin Laden. And this is about protecting us from another attack. Some have already been prevented. Would you rather them have taken place? Oh yeah, probably, so you could blame it on Bush.

Posted by: Alex Ham - America's Hero | January 6, 2006 12:06 PM

In searching for a legal defense for the Presidents actions in domestic spying "Chris Ford" is a hobby and using labels to define those who oppose your extreme view of the Presidents potential misuse of his perceived powers. You Sir have set the debate back to third grade levels. Next I expect to here did so, did so, did so from you. The fact is that no one who has ever taken the oath to protect the constitution of the United States, which I have, can allow this to stand. If we do what will be next? No sir, intentions are no enough to justify an intrusion of this magnitude. With no oversight, how can we be sure that the NSA is not being used as a political machine? Last time I check this was the USA not USSR.

Posted by: Bill Gardner | January 6, 2006 12:09 PM

In searching for a legal defense for the Presidents actions in domestic spying "Chris Ford" is a hobby and using labels to define those who oppose your extreme view of the Presidents potential misuse of his perceived powers. You Sir have set the debate back to third grade levels. Next I expect to here did so, did so, did so from you. The fact is that no one who has ever taken the oath to protect the constitution of the United States, which I have, can allow this to stand. If we do what will be next? No sir, intentions are not enough to justify an intrusion of this nature. Without oversight, can we be sure that the NSA is not used as a political machine? Last time I check this was the USA not USSR.

Posted by: Bill Gardner | January 6, 2006 12:12 PM

"The fact is that no one who has ever taken the oath to protect the constitution of the United States, which I have, can allow this to stand."

Posted by: Bill Gardner

I sir have taken an oath to protect the Constitution myself, and if it were up to me it would stand. I just ask myself a simple question. Which is more important saving American lives or maintaining a strict interpretation of the Constitution? I consider myself a "strict-constructionist" but in this situation, when it's evident lives are being saved and no one's inherent rights are violated, I must agree with the actions of our President.

Posted by: Alex Ham - America's Hero | January 6, 2006 12:30 PM

Look, I just melt when I see Padilla and hope he is OK and is free soon. Is there anything wrong with that?? I put myself in his shoes and think of how his civil liberties are violated and how he has lacked someone to love for 3 whole years. No one should be treated like that. There are misguided people in the world, but if we really followed our Constitution and gave all the world the same treatment we are supposed to give our own citizens in the Bill of Rights, no one would dislike us.

Posted by: Matthew | January 6, 2006 12:47 PM

To NaCL,

There are things that changed the world. Salt (NaCl, ironically enough), changed the world. Electricity changed the world. Nuclear weapons changed the world.

The knowledge that America had enemies did not change the world.

The Constiution was not created for times of peace and tranquility in which it would not be needed. When everything is fine, the liberties affirmed by the Constitution are self-evidence and unquestioned. No, the Constitution was created for the dire circumstances, during which it would be questioned to what extent the powers of the Government would intrude upon the rights of the individuals. Anyone can be a hero of the Constitution in the summertime.

Posted by: Matthew | January 6, 2006 12:54 PM

"Look, I just melt when I see Padilla and hope he is OK and is free soon. Is there anything wrong with that?? I put myself in his shoes and think of how his civil liberties are violated and how he has lacked someone to love for 3 whole years. No one should be treated like that. There are misguided people in the world, but if we really followed our Constitution and gave all the world the same treatment we are supposed to give our own citizens in the Bill of Rights, no one would dislike us."

Not posted by me. Cheap tactics. New low.

Posted by: Matthew | January 6, 2006 12:55 PM

"When it's evident lives are being saved.."
Can you prove this? How is it evident?

Obviously those domestic political groups currently falling under the surveillance umbrella pose a more serious threat to the nation than an Executive branch run amok.

Sorry, I have to disagree. I hear "lives being saved" and given the events of recent history I can believe he may mean that, but I gotta revert to Reagan on this.. "trust, but verify". How do we do that without oversight? Can't. So why do you believe him?

Posted by: Not a Constitutional Lawyer | January 6, 2006 12:56 PM

Well, let's see. The plot to blow up the Brooklyn Bridge was thwarted. I don't live in NY, but I'm pretty sure there's traffic on that bridge 24 hours a day. So, lives were saved there, right?
Also, there was another scheme to crash another airliner into a power plant. You've got passengers on the plane and emplyees in the plant. Again lives are saved, right?
Isn't there a possibility now that the terrorsits know these calls are monitored that more of their plans have been postponed or even cancelled?

Posted by: Alex Ham - America's Hero | January 6, 2006 01:05 PM

Also, he has never given me a reaon not to believe him. He has made mistakes, but he has always been honest.

Posted by: Alex Ham - America's Hero | January 6, 2006 01:06 PM

Alex Ham-

"Isn't there a possibility now that the terrorsits know these calls are monitored that more of their plans have been postponed or even cancelled?"

Since it is of vital national security interest to cancel and postpone potential terrorist plots, wouldn't that make public disclosure of NSA warrantless wiretaps in the best interest of national security?

"Also, he has never given me a reaon not to believe him. He has made mistakes, but he has always been honest."

It doesn't make any difference how much you trust the President. You don't get to interpret the Constitution anymore than I do. If Jesus himself appeared on the planet earth, ran for President, won by a unanimous vote, declared mandate as well as peace on earth, even then Jesus Christ would still be bound by the Constitution of the United States of America. There is no "trust me" clause in the Constitution. There is no court case nor legislation that introduces a "trust me" clause into Executive powers.

No one, not George Bush or Jesus Christ, gets to insert the "trust me" clause forever into the American political system. Not because of terrorists, not because of mandate, not because of peace on earth. Though security needs evolve, checks and balances do not.

Posted by: Will | January 6, 2006 01:18 PM

OK Alex, I understand.

But you are saying these plots were thwarted because of the current methodologies, not b/c of due diligence or old-fashioned police work. I guess I don't see that.

Better an "honest mistake" that costs 100,000+ foreign lives than we enforce our own laws.. wow.

Posted by: NaCL | January 6, 2006 01:19 PM

If it is true that the actions of the President lie only within his authority to protect the Constitution and direct the various military and militia organizations, then what must be scrutinized is the meaning of terrorism and the semantics of the word "war".

What we as Americans, left, right, middle, etc., believe about our involvement in the War on Terror has no bearing in the argument over propriety of surveillance activities. It is the President's definition of "war" and "terror" that has eminent domain until said President is removed or has served his term(s).

Having said that, it should stand to reason that if the President holds the belief that "terrorism" is ultimately a threat to our Constitutional Rights as Americans, then he must defend those rights by means he deems necessary as under the authority vested in him. And during "war" time, certain things are allowed by law. Whether we think it is wrong or right only matters to us. To change these circumstances, the Constitution will have to be changed.

Posted by: BT | January 6, 2006 01:21 PM

Alex Ham,

Clearly there's a gulf between your feelings about the president and many others' here. But on principle, I believe the argument for verification, oversight, and balance of power are stronger in both Constitutional and historical terms. Both kinds of arguments have already been made here already, so I wont repeat them.

Rational arguments can be made for a strong executive with the ability to act quickly. But the question at hand is, what are the limits to that power? And when considering this, it's better to think outside the immediate case and generalize to all possible presidents. For instance, would you have the same support for enormous executive powers if Dean or Hilary C., or someone even farther left was president?

Also, nobody is questioning the value of investigation and vigilance regarding threats to the country. The question is, what are the rules by which that vigilance is exercised? I don't think anyone but Mr. Ford would accept the idea that there can and should be no rules at all.

I don't know why this hasn't come up before, but the Congressional "interference" on the matter of torture seems to cover many of the same issues. The president, in that case, decided to bow to the will of the Congress when it issued rules on how he can wage war, overseas even. How is FISA substantially different from the torture legislation? To me it seems that FISA is much less intrusive on any hypothetical presidential prerogative than the toture bill. Will Bush secretly order torture (under whatever euphamism they settle on) in defiance of the bill? If he does and is caught, will he have a viable defense? Or does his acquiescence to the torture legislation signal an acceptance of serious boundaries to his power?

Posted by: james | January 6, 2006 01:36 PM

I find it quite amazing how people make assumptions on ONE SIDE of the three branches of our government.

By Emily Messner | January 5, 2006; 01:15 PM ET | Category

"While those few high-ranking members of Congress could express their dissent directly to the president, he had no legislative imperative to heed what they said. "

That's half the issue my friend. The CONGRESS, had no imperative AT ALL to acede to the demands of the PRESIDENT to keep anything secret about their briefing WHATSOEVER !

If congress tells us, that no matter what the Executive branch informs them they are doing, that it will wilt like a dead lilly and never tell a soul just because the President says they shouldn't, then WHAT OVERSIGHT CAN THEY EVER ACCOMPLISH ?

Is it somehow a given, that the congress MUST acede to the Executives out of bounds demands on how they RUN THEIR BUSINESS ?

I find it quite hilarious that this is the constant drone from the left.

The Presidewnt told us we couldn't do anything. The President said don't find out if what they are doing is legal or not. The president said we can't talk about this amongst ourselves.
The President told us were his minions, and that's why we call ourselves the Intelligence Oversight Committee.

LOL - IT'S A MIND BLOWER !

Everyone buys it without a peep !

Posted by: SiliconDoc | January 6, 2006 01:42 PM

BT,

Ok. Define the line.

If the President believed that there was the necessity of no flights entering or leaving America and a national 1a.m. curfew, you would believe that be ok? Or not?

p.s. I hope whoever fake-posted under my name isn't anyone here talking about honor or the necessity of "trusting" anyone.

Posted by: Matthew | January 6, 2006 01:50 PM

One definition of insanity is the ability to hold two contradictiory beliefs as true at the same time.

"" and the person who told is a traitor? "

ABSOLUTELY, and they NEED TO ROT IN PRISON FOR OVER 20 YEARS ( the weak, feckless, undeterring, bad way to handle it ), OR BE EXECUTED IMMEDIATELY FOR TREASON UPON CAPTURE.( the way to set the rules clearly to partisan hack traitors who don't care about the USA at all )"
-SiliconDoc

"That's half the issue my friend. The CONGRESS, had no imperative AT ALL to acede to the demands of the PRESIDENT to keep anything secret about their briefing WHATSOEVER !"
-SiliconDoc

Posted by: Matthew | January 6, 2006 02:05 PM

If we act like SiliconDoc isn't here, maybe he'll go away and bother somebody else.

Posted by: james | January 6, 2006 02:13 PM

Oh, I have been. I was just curious which SiliconDoc SiliconDoc was going to label as a weak-kneed pie-in-the-sky liberal who just doesn't get it.

Posted by: Matthew | January 6, 2006 02:19 PM

Just about every other post this person launches a personal attack against Chris Ford.

" Posted by: Matthew | Jan 6, 2006 10:24:50 AM
Chris, if the length and number of your posts indicate that you lack anything, time is not one of them."

Launching direct name atacks on him.

I refer you to Emily Messner's policy:
________________________________________
Knock it off!

Ad hominem attacks have no place in what should be an intelligent, logical debate. (For those unfamiliar with basic Latin, the definition of ad hominem can be found here: http://dictionary.reference.com/search?q=ad+hominem )

Flinging mindless insults only betrays the insulter's lack of solid reasoning. There are so many compelling arguments on both sides of this issue that there is really no excuse for resorting to verbal abuse of those who disagree with your position.

If you don't have anything constructive to add to the Debate, please refrain from commenting. (In case I haven't been clear enough: name calling, gratuitous use of profanity, and suggesting various methods of self-fornication do NOT qualify as constructive.)

Let's keep it civil, shall we? Many thanks.

Posted by: Emily Messner |

Posted by: SiliconDoc | January 6, 2006 02:24 PM

I refer you to Emily Messner's policy.

"If we act like xxxxxxxxxx isn't here, maybe he'll go away and bother somebody else.
Posted by: james | Jan 6, 2006 2:13:08 PM

Knock it off!

Ad hominem attacks have no place in what should be an intelligent, logical debate. (For those unfamiliar with basic Latin, the definition of ad hominem can be found here: http://dictionary.reference.com/search?q=ad+hominem )

Flinging mindless insults only betrays the insulter's lack of solid reasoning. There are so many compelling arguments on both sides of this issue that there is really no excuse for resorting to verbal abuse of those who disagree with your position.

If you don't have anything constructive to add to the Debate, please refrain from commenting. (In case I haven't been clear enough: name calling, gratuitous use of profanity, and suggesting various methods of self-fornication do NOT qualify as constructive.)

Let's keep it civil, shall we? Many thanks.

Posted by: Emily Messner | Jan 4, 2006 12:51:26 PM

Posted by: SiliconDoc | January 6, 2006 02:27 PM

James -
It's obvious that I'm conservative, but once a President is elected I try as best I can to be supportive. I didn't vote for Clinton and I didn't and still don't think he is a good person, but I was supportive of his Presidency. Really he was my boss, so you should always try to be supportive of your boss. If Hilary Clinton wins the 2008 election, I will be supportive. If she took a drastic action such as this that saved American lives, I wouldn't ridicule her, accuse her of breaking laws, or call for her impeachment. I would commend her for a job well done and be very thankful for her dedication to the people of this country.

Posted by: Alex Ham - America's Hero | January 6, 2006 02:32 PM

"The Constitution mandates that the President protect us from all enemies. It's extremely logical that intercepting conversations between AQ terrorists living in Afghanistan and people who are part of sleeper cells living here in the U.S. is a way of protecting us from our enemies. Therefore, logic would follow that any legislation enacted that would impede the President's ability to protect us would be unconstitutional.

What's so difficult about this? What part of the Constitution prohibits President Bush from protecting us from our enemies? If President Bush's actions are so anti-constitutional, why is there abundant case law supporting his position?


Mr. Bill Gardner doesn't have a clue about the Constitution. He gets all puffed up about his "oath" as a military member or some gov't bureaucrat that "he will defend the Constitution" - but appears to be reneging on his oath by saying he doesn't want to follow the part of defending the USA against all enemies foreign and domestic. Like Alex Ham, and the present day soldiers fighting and dying to stop the same sort of Islamoids that caused 9/11, I remain true to my commissioning's oath.

And the only 3rd grade debate is some puffed-up Lefty like Gardner fixating on one part of the Constitution and taking an elementary school perspective of a student locked into one point, thus missing the forest for the trees, and saying that the one thing he gloms onto cancels out all other Constitutional issues.

While it's true that the Founding Fathers envisioned the Legislative Branch as the branch of government that had the most responsibilities, it's foolish to think that they envisioned an Executive Branch that took orders from the now 535 members of Congress on how to prosecute a war.

In reality, wartime gives the President a far bigger role than Congress. Can you imagine making military decisions if consensus had to be reached between 435 congressmen and women and 100 senators then they had to iron out their differences in conference committees as they do with all other legislation? That's a nutty notion and then some.

The legislative branch is not a superior branch of government. Congress cannot pass laws to subvert the Executive's Constitutional duty, and anyone saying that a pithy phrase like "no President is above any law Congress passes" is a fool clutching linguistic fool's gold. Nor do roomfuls of lawyers dictate what Presidential or Legislative duties they sanction as Gods in Robes. That's absurd. As any law professor or history professor will tell you, the Founding Fathers created a government of three co-equal branches of government. The executive branch is there to execute the duties spelled out in the laws passed by the legislative branch or that the Constitution assigns, with the Constitution taking precedent over legislation. It's just that simple.

Sorry, Lefties!

Protecting us from our enemies is one of the most basic duties assigned to the Executive branch. It's just that simple.

Posted by: Chris Ford | January 6, 2006 02:35 PM

Unlimited perpetual secret war powers broadly used without oversight -- the grand concept gradually becomes clear. Mighty impressive.

Posted by: On the plantation | January 6, 2006 02:35 PM

Of course, a traitor is someone whom sneaks about and issues a National Security secret to NYT, but has no basis for doing so.

When one is a member of the IC, they have a responsibility to bring to light IN THE SENATE, BY LAW, WHAT THEY CONSIDER TO BE ILLEGAL ACTIONS OF THE EXECUTIVE BRANCH.

Certain people like Matthew, don't understand the issues properly, and of course take the tack that Rockefeller is a helpless feckless snitch to the NYT.

Quite the CONTRARY.

You ALWAYS have to explain more to people who don't have a clue.

I have mentioned the very thing many times before. The left has ignored it the whole time.

They still are.

Check the laws of the Senate before you respond Matthew. Think before you respond.

There is a procedure.

Leaking NS information isn't it. The traitor deserves the same, and as you will see, a prosecution will occur.

If you we're correct in your professed beliefs you'd be currently disaapointed in your feckless Rockefeller democrat, but in the end you'll be glad he didn't invoke the procedure, since the Traitor wil languish.

Get a clue failed parlaimentarian.

Posted by: SiliconDoc | January 6, 2006 02:35 PM

"Oh, I have been. I was just curious which xxxxxxxxxxxxx was going to label as a weak-kneed pie-in-the-sky liberal who just doesn't get it.

Posted by: Matthew | Jan 6, 2006 2:19:46 PM
"

Since you have been referred repeatedly and won't stop I'm lodging a formal complaint.

Posted by: SiliconDoc | January 6, 2006 02:37 PM

As the room sees, the weak-kneed pie-in-the-sky liberal Matthew didn't get it.

Posted by: SiliconDoc | January 6, 2006 02:42 PM

"As any law professor or history professor will tell you, the Founding Fathers created a government of three co-equal branches of government." -ChrisFord

Actually, no. Any law professor will tell you that there were two ill-defined branches and then the Supreme Court via Marbury v. Madison created a third.

But, with some exceptions (the Electoral Congress comes to mind) the Founding Fathers trusted more the judgment of the many over the one. As Jaxas said earlier, they sought to prevent another King George.

Posted by: Matthew | January 6, 2006 02:54 PM

That's right Matthew time for you to be a good boy and know your place.

Posted by: SiliconDoc | January 6, 2006 02:58 PM

Rolling on the floor in hysterical laughter.....

Ahhhhh Beren, you dirty dog you. It had to be you of course. It really should have been Emily, who would have said "Cayambe, what in the world did you read in the FISA statute? SCOTUS need not find that, 'tis already there!"

Goes to show you what trouble you can get into when you rest on reading another's analysis of a statute instead of reading the statute itself. Thanks Beren, I stand corrected.

Still, your correction can't avoid sparking my imagination..........

Solicitor General....Both the statute itself and case law with regard to the 4th amendment condition their application to an "expectation of privacy" so it is unnecessary for this Court to affirm the imperial presidential powers we assert and know this court would otherwise affirm. Clearly no one in this nation has such an expectation of privacy. A reading of Emily Messner's WP blog will clearly illustrate that. Those who support our view by definition can expect no privacy. Those who oppose it nonetheless believe we are invading their privacy and therefore have no expectation of privacy. It matters not whether we are or are not invading their privacy; the only thing that matters is their expectation and there can be no question that our campaign to induce public paranoia has been successful and has removed all vestiges of any expectation of privacy in all communication, international or domestic. Everyone agrees with that.

Justice Scalia......So in essence you are saying that it is unnecessary to read beyond the plain text of the Constitution itself to decide this case; or even to read the text itself?

Solicitor General..... Yes Mr. Justice, if I dare say, this effectively castrates the Court with respect to the Constitutional issues presented to it.

Justice Scalia...... Brilliant....Brilliant!

Justice Roberts........ Just hold the fort a minute here. I do not recall reading this argument in the record of the District Court or the Appellate Court. Is that correct?

Solicitor General ..... That is correct sir. Mr. Beren just outlined it to us last night.

Justice Roberts........ Would you not agree that this requires a finding of Fact, namely that there is in fact no current expectation of privacy?

Solicitor General...... Well, yes. Of course, but this fact is obvious to anyone, is undeniable.

Justice Roberts ....... Yes, of course. But as it is not we who determine the Facts, would it not be necessary for us to remand this to the District Court for reconsideration of this fact, and to do that, would it not be necessary for this fact to be relevant to a Constitutional issue before us?

Solicitor General ....... Ummm. Justice Roberts, we are threatened daily by the most evil forces in our nations history and time is of the absolute essence. The government must comb through millions of communications each hour for that singular one which will enable us to prevent the annihilation of the American people. We do not think that this Court should stand in the way of such peril for a mere technicality.

Justice Breyer .......... Stupid......stupid!

Justice Ginsberg ......... Solicitar General....I am sorry to inform you sir, that you cannot castrate me! This too is an undeniable fact.

Justice O'Conner ........ Hear, Hear. Speaking for the unimpaired, we hold 2-0 forthwith that the judgment against the Government in the District Court is AFFIRMED.
Next case!

Posted by: Cayambe | January 6, 2006 03:01 PM

Beautiful, Cayambe. Funniest thing I've read all week.

And Beren's post of Jan. 05, 8:05:31 is, as Will said, compelling. Bet yer both filthy lawyers er sumthin.

Posted by: james | January 6, 2006 03:17 PM

Thank you Ms. Messner for another wonderful topic of discussion. I am heartened that the Washington Post and others have finally woken up and are no longer afraid to open up their forums to have honest and enlightened discussions. Sometimes when I watch the UK Parliament in action, it almost brings tears to my eyes and wish that Congress would have a system where honest and intelligent debate were possible. The sight of men and women having a battle of ideas is exciting. Call me a snob if you like. I wish and hope for a day when most American politicians are again men and women of intellect. Instead, we have a president who openly admits he does not like to read. Have any of you ever watched CSpan covering a Congressional 'debate' and noticed that he/she is talking to an empty Chamber. I honestly believe that the image of the Representative talking to an empty Chamber is very emblematic of the discussion going on right here. Some of you have made wonderful comments and put forth solid evidence to back up your arguments. However, is there anybody out there listening to us all? Really listening. That perhaps would be a topic of discussion for another time.

Posted by: Julio | January 6, 2006 03:21 PM

US Constitution Article I, Section 8, Clause 11.
The congress shall have power... To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

THERE HAS NEVER BEEN A DECLARATION OF WAR, therefore this does not count as a "war-time". Anyone tries to support Mr Bush's disrespect and violations of the Constitution by claiming 'it's a wartime so the presidential powers are greater' is simply wrong. No one, has the right to disregard the Constitution, especially the president. Jefferson insisted that the Constitution spell out a Bill of Rights for its citizens because they had just over thrown a tyranical imperial power. Bush is a president not a king.

The president is the commander and chief of the military, but wan't an act passed after Vietnam which only allows the President to act with the full force of the military for a periosd no longer than 90 days? Isn't that why during Bush War I, his father had to goto Congress to ask for an extension if my memory serves me correct of 18 more days; putting the total 'war-time' at 108 days?

As far as Mr Bush is concerned to wheter or not the FISA Courts are Unconstitutional, that is of no matter for the president to decide. Milestone case Marbury v. Madison (1803) established that the Supreme Court and ONLY the Supreme Court has the power and purpose to interpret the Constitution.

Posted by: Rob | January 6, 2006 03:29 PM

I will be civil.

1) What is war and how can a sovereign state declare war against individuals such as terrorists? Terrorists are really political criminals. I propose that this present state of infatuation with the "war" on terror is not legally war.

2) A Declaration of War based on and conceived in Fraud (e.g., we must invade foreign country based on patently false allegations and reasons) is an invalid war, just like fraud in the conception makes a Contract invalid. (See Below.)
http://www.worldnewsstand.net/history/articles/contract_law.html


Any individual who, by trickery, fraud and deceit, has been induced into a contractual relationship resulting in loss of liberty may seek redress and grievance, as it applies to the individual, and to the specific violation by liberals and their form of totalitarian government. The Common Law of contract provides sovereign and natural Citizens with remedies to arrest or review a judgment when there is fraud, misconduct, lack of service of process, undue influence, mistake, inadvertence or impossibility. These points in law are called "affirmative defenses," and the burden of proof is on the one who affirms (generally the government).


Comments?

Posted by: Impeach Bush | January 6, 2006 03:42 PM

Fraud in the "inception" is what I meant.
I should write Bushisms for W.

Posted by: Impeach Bush | January 6, 2006 03:50 PM

IB,

You could declare war on individuals, if you so chose. The problem isn't in the U.S. declaring war on Osama, as such. Rather, it is a war with an ideology. See the discussion yesterday on parallels between now and the Cold War and what makes apropos historical and legal precedent.

As far as a war declaration based on fraud, you could apply the precept, I suppose, but am really not sure to what ends. In contract you're generally looking for rescission and a return to the status quo with a direct appeal to the structure of government as your arbiter. Completely unclear what you would seek as redress and from whom you would seek it. So an interesting application, but I would say substantively kind of empty. Unless you have some ideas to fill in the blanks.

Posted by: Matthew | January 6, 2006 03:56 PM

Clearly we need a Consitutional Amendment to redress those points! :)

I think that the 2 ton elephant (national security) will eventually trump these points. As was pointed out previously, most Presidents have just ignored the war powers clause/s, and they were not impeached.

Is that right? That's a whole 'nother ballgame.

Posted by: Not a Constitutional Lawyer | January 6, 2006 03:57 PM

James -

"I don't think anyone but Mr. Ford would accept the idea that there can and should be no rules at all."

And conversely, I believe the American public has little sympathy for the enemy or enemy sympathizers. And believe that you can kill the enemy and otherwise deprive him of much of his other "precious liberties" without a court, jury, or ACLU's say-so. Worse, decide that you can kill the enemy and accept that innocent bystanders around him may be killed, too. And severely punish, even execute unlawful combatants here in this country without giving them civilian ourt due process. James may quail and rattle at such abhorrent thoughts - but it's called war, James.

As the course of events will likely lead to Justice investigating who leaked some of America's most critical state secrets. Especially after the Washington Post and NYTimes demanded to know who leaked that other crown jewel of intelligence gathering, Super-Secret Agent Plame busy at her deask the last 6 years investigating nefarious foes between Georgetown Embassy parties with "my daddy's a Big, Famous Man" Joe Wilson. So it might be worth looking at the last time the WP and NYTimes had a case in SCOTUS on top secret leaks - the Pentagon Papers. A link to the 6-3 1971 decision, where the Justices gave 9 separate opinions:

http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0403_0713_ZS.html

Which explored repercussions about revealing national secrets shielded by law and how the Government failed to meet a burden of proof that the press damaged the security of the nation. In the current (cases) of NSA secrets, the investigation into the WP revealing the CIA secret prison system - it is clear from the Plame case the press hyped that reporters must reveal sources to a grand jury. That ought to be interesting for the Times fiscal health and James Risen's colonic integrity.

And thinking ahead a bit, I prefer Centrist Democrats and I think this loony Party focus on defending the enemy from the Evil Bushitlerburton is so damaging. We could be looking at a realignment because the Republicans have been incredibly corrupt and blatant in favoring 1-2% of Americans in the economic elite over the rest of the country. But all we hear from Democrats is about how worried they are about the captured Gitmo terrorists, about how we shouldn't snoop on Jihadis here(which appear to be looking at under 1500 Jihadis here in 3 years in a population of 300 million - one in every 200,000 people), poor Jose Padilla, and the quagmires!, and how we should leave Iraq because we have in 3 years lost the equivalent of half the losses in the average Civil War battle.

And who, despite Bush's success in stopping subsequent terror attacks, (if people like Diane Feinstein and John McCain are to believed), insist that we lower our levels of defense to pre-9/11 levels. Now, only a few debators here are willing to admit this may cost us lives, like "Patriot" 1957, who thinks the past and future US casualties from unlawful enemy combat ops here in the Homeland are inconsequential given the number of motor vehicle deaths and possible deaths we could see from avian flu. One libertarian even argues that 15-20 cities nuked with 10-20 million dead would not "threaten our precious liberties" since the Constitution would survive, and gave the usual spiel about how it is certain(except for past examples of Jefferson, Madison, Jackson, Lincoln, Wilson, FDR, and Truman) that liberties once lost are forever lost. I think the consequence of another 9/11 or worse, especially if the Lefties and libertarians had forced our defense levels down and the Democrats bought into it would be some very specific blame and repercussions assigned by the American public to individuals and groups that cost American lives needlessly in the midst of a war.

Posted by: Chris Ford | January 6, 2006 04:16 PM

So, Chris, what are those 8 cases?

Posted by: Matthew | January 6, 2006 04:29 PM

Should the Executive Branch obtain by fraud "war powers" from Congress, then there is no true "consideration" for the grant of those war powers and they can be rescinded by the Judicial Branch in a suit brought by any Citizen who's liberty has been violated by exercise of those fraudulently obtained war powers.

Posted by: Impeach Bush | January 6, 2006 08:35 PM

The "two ton elephant in the room" isn't national security. The issue is that, without oversight, who's to stop any President from expanding his definition of "terrorists and terrorist sympathizers" to anyone who opposes him? This is why the FISA courts were established, so that there could be a separate entity, unworried about reprisals, safely looking over the shoulder of the Administration in order to prevent the excessive and illegal invasions of privacy that occurred during the Nixon administration.
It seems as if Mr. Ford and others don't remember that. Have they read Orwell's "1984"? Have they not heard the old saying "power corrupts, absolute power corrupts absolutely"? If the thought is that "it can't happen here", my reply is that it has and it can.

Posted by: MH | January 6, 2006 08:53 PM

Based on this discussion so far, I believe it is reasonable to state that the issue of oversight is where the case and contraversy arise. The Executive Branch's "defense" to the reported prima facie case of their illegal activity is that the wire tap laws do not apply in thse circumstance because these actions are legitimately with the Executive Branch's "war powers".

What I am saying is the Executive Branch does not even have any war powers because the Congressional Resolution by which those war powers were granted was fraudulently obtained and therefore null and void.

Posted by: Impeach Bush | January 6, 2006 09:53 PM

"No one, not George Bush or Jesus Christ, gets to insert the "trust me" clause forever into the American political system. Not because of terrorists, not because of mandate, not because of peace on earth. Though security needs evolve, checks and balances do not."

Posted by: Will

But the very existence of JC as commander-in-cheif would overextend allowable presidential powers. He would be "wiretapping" everyone and everthing and simultaneously, know all. He would probably use his superpowers to nicely overpower all the bad guys, and instantly convert them all to his point of view. JC would not support the Constitution of the US. He would be impeached.

Posted by: johnnyg in NE DC | January 6, 2006 10:21 PM

Matthew - "So, Chris, what are those 8 cases?"

Ummmm, you mean the 8 Lower court decisions that you refused to go over to Powerline.com and Volokhconspiracy.com after I told you where they were, to read them, and return and discuss what you thought on Emily's blog? But that was too much effort for you, it appears. You see, that is the problem with you Matthew. Your pattern is to never add to the blog but only react to your disagreement with other posters. You may think that makes you "catty" and quick with a snark, but the fact you don't bother to inquire into the details that you question simply makes you a lazy twerp.

A good follow-on to Emily's Youngstown post is another commentary on the same subject which details what war powers Robert H. Jackson defines in his concurrence.

http://www.henrymarkholzer.com/articles_truman_loss_bush_gain.shtml

Holzer amplifies on the waxing or waning topic of war powers Jackson brought into theory, and also adds the notion that authorization of force vs. declaration of war is still war in SCOTUS's eyes, and quite importantly, there is no "Mother May I" hierarchy where the President must ask and get permission from Congress to wage war. All it takes is Congressional silence or inaction to legitimate the use of force. (And silence includes Congress bitching on TV but refusing to put their mouths and votes to work on the Floor, as in the recent Murtha vote).

Just as interesting, an interview with John Yoo discussing War Powers with the University of Chicago. As a good deal of the Bush Administrations wartime policy is based on Professor Yoo's views, this interview is well worth reading on why "Declaration of War" is archaic and hasn't been used in 60+ years by any nation, yet the UN and all countries recognize "use of force" as real war and attach requirements to abide by Geneva and Hague to it.

http://www.press.uchicago.edu/Misc/Chicago/960315in.html

The last nation to declare war was the Soviet Union, against Japan in 1945. Clearly, the UN Charter outlawing nations from declaring war, except in defense against another nations armed attack, has changed diplomatic language. Even the presumption that only the Security Council would use armed force against those defying resolutions or assemble a UN Force - carefully said it wasn't "war" being declared but a police action. So the global response is to now call war by names other than war "use of force", "armed response", "peacekeeping operations", "police measures", etc. But the archaic language of the Constitution is "Declaration of War" which is now a 60 year, so far now inoperative global diplomatic notion. Unless it is a Democrat in office blockading the Soviets, launching Desert Fox on the Iraqis, or simply bombing Kosovo - all without UN or Congressional authority, Lefties tend to throw a tizzy - calling it "illegal war" because Congress didn't say "The Magic Words". Professor Yoo says there is a Constitutional problem in the eyes of legal scholars because the Supreme Court falsely assumed "Big Wars" as opposed to the Marines landing in HOnduras to safeguard United Fruit's banana fields in the 20s, would curtail rights - but Big Wars would always have the "Magic words spoken" so the literal language of the Constitution was followed and bolster the wartime measures. Until now, the Supreme Court has yet to decide if current substitute language voted on by Congress is the same as a Declaration of War. In certain decisions before "Declaring war became diplomatically a thing to avoid, they linked it specifically to the Magic Words. In other decisions like the peacetime draft which "violated" the civil liberties of millions of young men a year on a scale that listening in on Islamoid phone calls doesn't come close to, they conversely ruled no war was necessary to curtail certain liberties and rights for the good of the nation. Goldberg opined in the 1963 Draft case that national defense came before the absolute expression of civil liberties - because reflexive and unthinking worship of the Bill of Rights was no substitute for keeping the nation safe, as the Constitution was never written as a suicide pact. (At the time, though it was peace, we had a huge Red Army threat facing us and a blue water Soviet Fleet, necessitating the 30-year long Draft).

The libertarians hate the lack of the Magic Words, but for a different reason than the Left, which seeks to undermine Republican Presidents and the USA through saying all wars are illegal without the Magic Words. The libertarians seek the undermining and destruction of the UN which they see as encroaching on the Gospel words of their secular Gods, the Founders (similar to China's reverence for the Veterans of the Long March).

Christian libertarians, the rural Idaho sort, want the US out because of the black UN helicopter fears and because the UN may block Armageddeon and the Rapture by being mean to Israel. They correctly say that the UN Charter is to blame for nations not saying the Magic Words - "Declaration of War" anymore and consider the global community disrespectful of the wishes of the Founders. They maintain the only way to get absolute 2nd Amendment freedom to buy advanced weaponry freely, block all searches - is for America and Israel to withdraw from the UN and all international law as a first step and to follow Jesus and the Founders, who they think were divinely guided, every literal word. (How they avoid discussing the vicious disagreements and Constitutional fights between the "Blessed Founders" is anyone's guess).

Posted by: Chris Ford | January 6, 2006 10:27 PM

So we really can see when a blog has gone on too long.

Posted by: Jazzman | January 7, 2006 12:34 AM

Che ....... This too is off topic. But I must say the libertarian part of me has to wonder why cost of this political speech under color of religion should tax advantaged. In this I am surely with Jaxas. It's truly difficult to come to grips with God as presented by Pat. But millions seem to. I must say that the God presented by my Jesuit friends has a much more attractive personality than Pat's. Does anyone suppose they are the same guy or different guys? Oops - off topic.


MH ........ Did Prez sign? I'm almost sure he did, but even if vetoed, a 2/3rds override vote puts it into effect. Does it matter if he did? I don't think so. Presidents have signed plenty of laws later held to be unconstitutional. The SC has the final and definitive say on any Constitutional issue, however it arises. (But this is just my amateur opinion or course).


MikeDeal ....... Very interesting. Reaching well back into history towards "original intent" as well. Of course this is why I am persuaded that the current archconservative wing of the SC is no slam-dunk for the government, if anything, the contrary. Perhaps this is why they are so anxious to keep Padilla off of this docket.


Matthew....... Yes, I do think some further refinement is in order, in a number of ways.
As a practical matter I don't think you can burden the government with getting a warrant for any communications going into or out of a foreign "roving tap". Should a FISA covered person be at the other end of one of these, this is indeed unpredictable, difficult if not impossible to discern in a timely manner, therefore it is pragmatically an incidental encroachment on 4th amendment. To avoid entirely free fishing through all US-International communications traffic you might also require either some evidence of a reason to focus on the international address at one end or a FISA warrant on the US domestic address end (unless of course the US end could be shown not to require a FISA warrant). It would of course be best for these kinds of things to be worked out by the administration and Congress instead of the nine justices who hardly have the time for these kinds of grungy details.

Another form of shelter is to restrict any unwarranted intercepts from being used to obtain FISA warrants or as evidence in any criminal trials. One of the dangers inherent in removing of the barrier between the FBI and the NSA is that it enables the FBI to use the NSA to do and end run around the warrant requirement in domestic criminal investigations. This is one of the strengths inherent in the British organizational system of separating domestic intelligence from foreign intelligence and from law enforcement.

In any case, if it were true that the administration is doing no more than it claims, I am convinced that we could all be satisfied with a rather modest adjustment of the FISA statute. I just think they are most likely going well beyond what they imply in their public statements. It wouldn't be the first time.


James ........ I agree with you. I think there is actually a better case to be made on Bush's side, especially if you get down to the technical pragmatic level. We just can't seem to get beyond the "Trust me" argument, and this pig just will not fly; I don't care how big a gun you shoot it out of.

On Padilla. I really don't have a clue whether he is guilty or not and frankly, I don't really care. No one can know that one way or the other as long as he is kept in the brig in isolation. What really bugs the hell out of me is not giving people a fair hearing within a reasonable time frame. Not only is that elemental to our values no matter where you sit politically, it just makes common sense. The brutal fact of the matter is that following 9/11 and in Afghanistan we cast a very large net and caught not just the tuna we wanted, but plenty of dolphins, crabs, sardines, jellyfish, old tires, and all kinds of things we didn't want. It just boggles my mind that we can't seem to comprehend that tossing the trash back into the sea is just as important as butchering the tuna.

Jaxas ...... I'm afraid I have to take some issue with you here. I don't think you can rationally hang 9/11 on Bush, or on Clinton either, or the CIA, the FBI, and on and on. As much as I hate to do it, I think we have to give credit to Bin Laden and crew for a simply brilliant operation at the technical level. These are by no means stupid or ignorant people and it will not help to defeat them to think otherwise. I happen to think that the President's immediate response to this attack was superb, and I don't mean his public political response (which was fine), I mean our military response in Afghanistan. I seriously doubt we would have seen such a response from any of the recent Democratic Presidential candidates who made it through their primary, to include Clinton. This is not to impugn all Democrats. I'm sure ex-Senator Kerrey of Nebraska would have, and, surprise, surprise, I'm sure Howard Dean would have responded similarly, though, absent Rumsfeld, it might have taken a bit longer.

We were vulnerable, we remain vulnerable, and we will remain vulnerable. We can reduce our vulnerability; we cannot eliminate it. Given enough time, given enough brains, given enough focus, we can be hit again. The implacable pursuit of Bin-Laden and his organization is in fact the best defense we can employ. It does not follow that the wholesale employment of various levels of mistreatment, indefinite and indiscriminant detainment of both the guilty and the innocent alike, side excursions like Iraq contribute to that defense. Quite the contrary.


Matthew ...... I didn't think you posted that the first time I saw it. Sounds more like SiliconDocs interior image of you. :o)


Will ........ Well said, well said. The Constitution will survive even the 2nd Coming.


James........ Good questions on the torture issue. I would venture a few thoughts. There is explicit language in the Constitution giving Congress authority in "regulating" the armed forces, as opposed to "commanding them". Agencies like the CIA are creations of Congressional legislation and its ability to regulate those flows from that. So I don't think there is any issue with Congressional authority over the subject. This still leaves it open for the President to assert his own independent Constitutional authority in this area, should he perceive a conflict somewhere. In Justice Jackson's scheme of things this puts him in the third classification where his constitutional powers are seen at their lowest ebb, as they would be with FISA, should the question present itself to the Court. In addition to Congressional mandates, treaties we have agreed to also bind the administration. But these have very weak and difficult enforcement mechanisms. All McCain has really done has been to write those into our domestic law which has much more robust enforcement mechanisms. Of course the administrations position has been that they have followed their international obligations anyway so McCain's bill is really unnecessary..... that is why Cheney fought so hard against it. He just hates duplicative paperwork. It's inefficient.

I'm glad you were amused and I wish I could lay claim to the legal qualifications you ascribe to me, but I can't. Now my daughter has just become a lawyer. But this has yet to help me, as she has not yet developed the requisite confidence to tell me I'm wrong. It will come; of that I am sure. Beren will have to speak for himself. In fact, I spent most of my productive life in various forms of engineering, for most of which I had little or no qualifications. It is quintessentially American to do what's interesting instead of what you're qualified to do. I will admit that in my younger days, when my eyesight was more adequate, I was an absolutely voracious reader and this makes a good mask for a sumthin.


Julio ........ you are listening. Perhaps you'll speak too?


Jazzman ...... Right, it's a matter of timing. But chime in at the right time will you? You have a good voice.

Posted by: Cayambe | January 7, 2006 01:06 AM

Begging your pardon, Jazzman,the blog has not only gone on too long; it has gone nowhere.

Perhaps morality and ethics have more bearing on the issue than confused legal arguments.
Why not give that tack some of the wind blowing around here?

However, if Youngstown Co. has any relevance- though not that apparently assumed by James J. Klapper- going to this link would make some interesting reading:
http://writ.news.findlaw.com/
There is one column there discussing with some authority the relevancy. Turns out our Emily was not off the mark, if you trust that column. There are a couple more, both by learned jurists.

What do I think? I think that anyone who can make the case that " The greatest happiness of the greatest number" has either been jeopardized or salvaged, as the case may be, wins the debate. There is plenty of precedent to consider which claim may best be justified.

As well, if we do this right we could even go beyond partisan-based opinions to find that something we all share unites us.

Posted by: Pleno Jure | January 7, 2006 02:50 AM

Now you get your referral Cayambe.

"Matthew ...... I didn't think you posted that the first time I saw it. Sounds more like xxxxxxxxx interior image of you. :o) "

1. You should be bright enough to realize that when I attack, I attack openly, as you have seen plenty.

2. I am certainly NOT the only one Matthew has been attacking, as others have pointed out.

3. One might look at whom Matthew attacked before the supposed fake post hit.

He clearly attacked me incorrectly AFTERWARDS, as I pointed out his lack of knowledge concerning Senate Rules made him the goddamned moron, not myself.

4. You lowering yourself to slimeball level is not something you're known to do by what I can see, and I suggest you revert back before the slime on your side gets you there with them.

5. The left far outnumbers the right in this forum, and it is clear the left likes their shithole gangbangs against the few posters that don't go along with their groupthink. If anyone needs to cool their jets, it the tyrannous majority left here.

In other words it wasn't me, but I certainly have noticed the same posters using differnet names, in different threads. It is obviously not a new phenomenon, as Matthew had suggested.

I guess you and he are absolutely obssessed, since I hadn't given one prior post in the thread.

Did you miss me ?

Cayambe, did you ever think Matthew pulled the crap himself ? Maybe you ought to consider that.

Now, I refer you to Emily Messner's rules.
It is CLEAR you attacked ME, first.

Knock it off!

Ad hominem attacks have no place in what should be an intelligent, substantive debate. (For those unfamiliar with basic Latin, the definition of ad hominem can be found here: http://dictionary.reference.com/search?q=ad+hominem )

Flinging mindless insults only betrays the insulter's lack of solid reasoning. There are so many compelling arguments on both sides of this issue that there is really no excuse for resorting to verbal abuse of those who disagree with your position. This is a forum for deep discussion of complex topics; we're not here to be jackasses to one another.

If you don't have anything constructive to add to the Debate, please just read and learn from those who are making helpful contributions to the conversation. (In case I haven't been clear enough: name calling, gratuitous use of profanity and gratuitous use of capital letters do NOT qualify as constructive.)

Let's keep it civil, shall we? Many thanks.


NOW, if you people stop fucking up- you won't get this message anymore.

Posted by: SiliconDoc | January 7, 2006 03:18 AM

ErrinF, I see you have refused to reform yourself as well.

While Chris keeps his dislike for an opposing philosophical party in general terms almost all the time, you revert to the lower form of hate and make it intensly personal each and every time.

In the post referrenced above you screeded hate toward him using his name multiple times, and kept it nearly entirely personal. He did not do the same prior.

I suggest if you have trouble with the right, you keep those right attacks in general terms, as he keeps his dislike for the left in general terms.

NOONE here believes Chris Ford merely uses left wing attacks to make his points, as he obviously is well versed in history and interpretation of the Constitution, EVEN IF IT COMES FROM A RIGHT PERSPECTIVE.

Even you ErrinF can make good points on topic without long screeding PERSONAL attack paragraphs, I have seen you do it.

Now, I don't believe you will change, but it is clear YOU should, and reserve your attacks against the right in general terms, instead of your personal assaults naming individuals you just can't stand over and over again.

I really doubt this forum will be banning general philosophical label disagreements, the idea EMILY presented was one where direct attacks on any single chatter ARE OUT OF BOUNDS.

If you keep screeding personal attacks at Chris Ford, along with others who do it often , don't expect him to not on much rarer occassions return fire and make it personal, because it is clear that is what your behavior is likely to elicit.

Now, I refer you to Emily Messner's policy.

Knock it off!

Ad hominem attacks have no place in what should be an intelligent, substantive debate. (For those unfamiliar with basic Latin, the definition of ad hominem can be found here: http://dictionary.reference.com/search?q=ad+hominem )

Flinging mindless insults only betrays the insulter's lack of solid reasoning. There are so many compelling arguments on both sides of this issue that there is really no excuse for resorting to verbal abuse of those who disagree with your position. This is a forum for deep discussion of complex topics; we're not here to be jackasses to one another.

If you don't have anything constructive to add to the Debate, please just read and learn from those who are making helpful contributions to the conversation. (In case I haven't been clear enough: name calling, gratuitous use of profanity and gratuitous use of capital letters do NOT qualify as constructive.)

Let's keep it civil, shall we? Many thanks.

Thanks, I would much rather see you comment on the topic as I have seen you do at times,and I'm sure you can say the same for this post.

Posted by: SiliconDoc | January 7, 2006 03:57 AM

Referrenced post :
Posted by: ErrinF | Jan 5, 2006 10:27:58 PM

Posted by: SiliconDoc | January 7, 2006 03:59 AM

It seems to me that the whole argument hinges on who we are wiretapping. The President has the power to wiretap foreign powers and agents of foreign powers, but not Americans, at least without a warrant. The Bush Administration believes the people being wiretapped are agents of foreign powers, but many people aren't accepting that.

I believe we need some standard to be met before we declare someone as an agent of a foreign power, as well as a definition of what a foreign power is. Normally, we would consider a nation-state to be a foreign power; today a loose knit organization such as Al-Qaeda is considered to fall under that definition. While I don't necessarily agree with that, I can accept it. If Al-Qaeda is a foreign power, how do we define someone as their agent? What standard of proof do we use, and who determines if we've met that standard?

Posted by: Fred | January 7, 2006 06:01 AM

Posters both for and against the president's expansive use of warrantless surveillance cite facts, courts cases, and references to the Constitution in defense of their views. Deep down, however, each poster is driven by deeply held beliefs and philosophies that are simply incompatible with opposing views on this topic. Despite a very robust debate joined by very well-informed contributors, not a single mind has been changed, or even swayed in any meaningful way. The debate could be about any political topic, and I'll bet we could predict in advance the views the more serious contributors.

Staging this as a debate about warrantless surveillance has had two disadvantages. First, it's a question that in my view should be addressed by credible people with access to classified information about the FISA court and about the threats we face. Claiming, as some do, that Constitutional or civil liberty concerns should be provide sufficient basis to constrain the president in wartime is like treating a patient without any diagnostic tools. In other words, it's prescribing a course of action without all the facts. In medical terms, it's malpractice at best.

Second, debating a narrow topic like warrantless surveillance has bogged us down in details, so much so that we're missing the central, and much broader philosophical question: how much discretion should we allow the president in the conduct of this war? Like so many philosophical questions, this one doesn't have an easy answer.

My own view is that contributors who reflexively oppose presidential wartime discretion are underestimating, dangerously in this case I think, the scope and nature of the threat we face. As much as they would like it, our struggle against Islamic terrorism won't be resolved in the courtroom, or by increased aid and sensitivity, or through the good works of the UN. If it's going to be resolved in our favor, something I still think is in doubt, it will require deploying our capabilities to the fullest. Tying up a second-term president with attempts to handicap him, or worse remove him from office, over actions he has taken not to subvert his opponents but to prosecute the war, only serve to weaken our position.

I also think these contributors overestimate the durability of expanded presidential wartime powers. Even mass wartime violations of civil rights (e.g., Lincoln's suspension of habeas corpus, FDR's internment of citizens with Japanese ancestry) were reversed in time, with no lasting damage to the Republic. The idea that somehow this president's expanded powers will destroy our liberties and last forever is not reasonably supported by precedent.

As I said last week, I believe we should allow the president the discretion he has taken, and instead of fighting him, we should figure out ways to help him fight the enemy. Of course, I expect to change no one's mind with this post. Nor do I expect that those who disagree with me have any chance of changing my mind!

Cheers and best wishes. JZ

Posted by: Jon Zagrodzky (JZ from prior posts) | January 7, 2006 10:11 AM

Like most of you--and apparently most of Congress as well--I have no idea who George W. Bush is wiretapping. Apparently, it is so secret that only a handful of people within the administration and within Congress are aware.

But I do know this: If you give the President--any President--an absolute power (a power that cannot be checked by any other body of government like Congress or the Judiciary), sooner or later he will give in to the temptation to abuse that power. The Founding Fathers knew this when they wrote the Bill of Rights.

To be quite honest with you, Bush and Cheney have not demonstrated even a fraction of the moral requisite required to resist the temptation offered up by having such broad, absolute powers such as they are seeking to arrogate to themselves.

Does anyone out there doubt for one minute that given such broad, unchecked wiretapping authority, that sooner or later they are going to get around to tapping the phones of those they perceive as political "enemies"? If you do, I have some beachfront property in Arizona I would like to interest you in.

Posted by: Jaxas | January 7, 2006 10:42 AM

Cayambe, I do not share your glowing appraisal of Bush's reaction to the 9-11 attack. Nor do I believe that the attack was executed in a particularly brilliant way as you suggest.

There were a set of conditions that exited prior to the 9-11 attack, the absence of any one of which would dramatically altered the outcome. One was Bush's cavalier attitude toward the whole idea of terrorism being the number one global threat. He was much more wrapped up in China, Missile Defense and getting revenge on Sadaam for trying to kill his pappy.

Another condition was the inferior insulation on the I-beams that formed the infrastructure of the trade towers. Had a more substantial insulation been used, this attack would still have been dreadful, but deaths would have been in the hundreds instead of the thousands. Another condition was the laid back nature of our homeland defenses--a condition that has still not been satifactorily addressed inspite of the formation of an entire new govbernment bureaucracy. And finally, the most notable condition, the lack of adequate airport security despite the sordid history of terrorists use of airliners to inflict terror and death.

Bush was warned by outgoing Clinton administration officials about this danger. But, he was into this Limbaugh-inspired Clinton-hating mode of thinking that led him to dismiss any advice coming from that corner. That condition more than any other has caused Bush more trouble than any other condition. He really needs to turn that turd off from his listening habits.

Posted by: Jaxas | January 7, 2006 10:57 AM

Chris,

You're right: I am a little lazy. If someone mentions a fact, I expect that they'll expand and explain it for me when asked. But then, I'd do the same. I wouldn't just throw out, "There have been 42 violations of the 4th Amendment since December 1, 2004" and then not expect to be able to document those 42 when asked. But that's just me: I have a different relationship with facts, I guess. To each their own.

Moving on, there have been two things mentioned here that I've been thinking a little bit about.

First, Cayambe, you mentioned the administration's evasion of review. Now, we could argue that as a starting-point fact, I suppose, but it's pretty clear the DoJ is trying its utmost to keep SCOTUS off the case. Perhaps it's tactical: they're hoping to replace Sandra Day with Alito. But, under the myth of the robe, it shouldn't matter. Correct actions are correct actions. And they're certainly ducking. See their transferrance of Padilla and claims of mootness on the issue. So, with that preamble, are these the actions of people who really believe in the justness of their cause? If the Exec's powers are so absolute at this moment, and the administration sincerely believed that, wouldn't they relish the opportunity to prove themselves to the country in an accepted forum? It certainly doesn't seem so.

Second, someone else mentioned this earlier, don't all the arguments that are being proferred in favor of invalidating FISA also serve to invalidate the McCain torture bill even if it is enacted into law? Or how does Congress' Article I, Section 8, "To make rules for the government and regulation of the land and naval forces" play into it?

Posted by: Matthew | January 7, 2006 11:48 AM

Silicon Doc, I've never had Emily cut into a Debate to take me to task for ad hominum attacks. You have. Stop taking the post Emily specifically wrote for you and posting it as if it was directed to others. I'm like the 20th person you've done that to, and none of us are guilty of what you have been guilty of. After having to deal with your ranting spazzes recently, I'm in no mood to pretend that you are somehow doling out helpful advice. While cast as some sort of moral chastisement of me, your post was actually wholly inaccurate and preposterous. Here's my favorite line from it:
"In the post referrenced above you screeded hate toward him using his name multiple times, and kept it nearly entirely personal. He did not do the same prior." Really? Chris Ford did plenty of that prior, and does it to more people than just me. I could go on and on about how inaccurate your silly post was, but why bother when one considers it's "Chris Ford is an innocent angel" premise. GMAFB!
Lastly, for the record, I have nothing against the right. I dislike extremists and the dittohead element of the right. Chris Ford certainly doesn't represent the right, at least not it's mainstream. He and you represent a lunatic fringe that is counterproductive to the right and it's goals. I would happily see the right succeed in this country IF they removed the likes of you from their ranks. Rush Limbaugh causes brain rot.

Posted by: ErrinF | January 7, 2006 01:41 PM

"And conversely, I believe the American public has little sympathy for the enemy or enemy sympathizers. And believe that you can kill the enemy and otherwise deprive him of much of his other "precious liberties" without a court, jury, or ACLU's say-so. Worse, decide that you can kill the enemy and accept that innocent bystanders around him may be killed, too. And severely punish, even execute unlawful combatants here in this country without giving them civilian ourt due process. James may quail and rattle at such abhorrent thoughts - but it's called war, James."
Posted by: Chris Ford | Jan 6, 2006 4:16:45 PM

Such is the mentality that fueled the Spanish Inquisition. Such is the mentality that fueled Robespierre's Reign Of Terror. Such is the mentality that fueled the Salem Witch Trials. Such is the mentality that fueled McCarthy's Red Scare. I could go on and on, but the point is obvious... whenever there is an enemy, there will be people like Chris Ford desperately searching for 'sympathizers' to accuse and punish. Only his lexicon would consider the words 'sympathy', 'liberty', and 'rights' as bad.
Sounds like you simply have contempt for humanity, Chris. All your political talk comes down to this... you want to see somebody burned at the stake. You WANT the enemy. Without the enemy, you wouldn't have somebody to be paranoid about, somebody to hate, somebody to use as an excuse for the 'anything goes' authoritarian state you envision. Again I put forth that listening to the likes of you will surely lose us the War On Terror, and actually turn it into a Reign Of Terror. You are hardly the voice of reason, but rather the voice of reckless witch hunting. Can you deny any of this, Chris? That is, without resorting to the usual 'spectral evidence' that you put forth...

Posted by: ErrinF | January 7, 2006 02:14 PM

"Matthew - "So, Chris, what are those 8 cases?"

Ummmm, you mean the 8 Lower court decisions that you refused to go over to Powerline.com and Volokhconspiracy.com after I told you where they were, to read them, and return and discuss what you thought on Emily's blog?"

Oh, I didn't realize our Mr. Ford had such a keen sense of humor. Powerline.com is an automatic redirect to securepaynet.net; a site that sells web-hosting. And Volokhconspiracy.com redirects to Seeq.com, a low-end search engine. Well, Mr. Ford, having gone where you suggested, I now return and my thoughts are that you should get better sources for political / Constitutional information.

Looking at your original posting a bit closer, however, I think I see the reason for your dissemblance. "Every President though, since FISA was passed has said the law cannot be applied in an unconstitutional manner and usurp Article II Powers that are the Executive's alone in dealing with foreign powers or agents of foreign powers. 8 court decisions so far have sided with the Executive."

8 court decisions... and now you call them 8 lower-court decisions... there actually aren't 8 cases, are there. There's maybe a couple of cases and the decisions were on procedural matters, perhaps? Trying to slice the onion a little thin? Or, as earlier supposed, you simply do not know?

Ah well: thanks for the quality intel.

Posted by: Matthew | January 7, 2006 02:54 PM

Some factoids:

1. During the Civil War, President Lincoln suspended the right of habeas corpus, a prerogative that the Constitution grants to Congress alone. When a federal court declared his order unconstitutional, Lincoln ignored the ruling. His administration locked up 10,000 to 15,000 people, including some whose only offense was to denounce the war. Hardly apologetic, Lincoln predicted that history would blame him for making TOO FEW arrests, not too many.

2. In World War II, President Roosevelt detained thousands of otherwise loyal to America reseident Japanese, Japanese-Americans, many of whom lost their homes and livelihoods, to contain the 10% of Japanese that were quite disloyal to America. Less widely known is that, when the government captured a band of German infiltrators in the United States, FDR declared he would execute them no matter what any court said. In that case, Administration officials rode shotgun on courts, and the Nazis were executed as soon as SCOTUS denied the German and America Nazis involved habeas corpus. (Ex Parte Quirin. The execution proceeded indeed, before the unanimous court decision was written. The time span was 2 months between when the unlawful combatants were infiltrated and when the last shovelful of dirt covered their electrocuted remains at the DC Army grounds. FDR and Truman were not weak on national security of presecuting the enemy to the maximum.

3. After WWII, Truman authorized blanket de-Nazification and war crimes military commissions for civilians, law enforcement, and former German soldiers. Many people only know the story of Nuremberg, not the massive military justice cleansing of Germany/Austria and other nations that occured.

In the US sector of 15 million, 930,000 faced military tribunals. 104,000 were found guilty of minor offenses, 21,000 determined to be offenders, 1,549 major offenders. 32 were executed. 9,000 sentenced to jail, 22,000 barred from elective office or law practice. 30,000 were sentenced to forced labor squads for 3 months -2 years supporting reconstruction.

All de-nazification sentences were non-apealable.

The Americans held over 3,000 military commissions for war crimes. Many were done in one day only, and 1874 prison sentences and 451 death sentences were delivered. In one village, the local police chief, his wife, and two sons aged 16 and 17 at the time of a war crime (arrest, detention, execution of 3 downed American bomber crew) were hanged. The chief and the whole town was made to watch his sons go to the improvised gallows, then his wife, then the chief was hanged while the village watched under US machine guns.

The military commissions of Britain delivered 240 execution orders of German civilians and police. Britain also handled the justice meted out to the Italian fascists. French military signed 104 execution sentences.

Most military commissions verdicts were non-apealable.

In addition to the Allied democracies, the Soviets held commissions and also administered broad-based liquidations of certain classes of Germans (like any Nazi official above a certain rank that escaped the commissions) and Soviet POWs determined to have surrendered w/o adequate fight.

Military commissions, run with the resources and advice of the Allies were also conducted in the former Axis - Occupied Nations, mostly to weed out enemy within who consorted, comforted, and aided the enemy. Greece, Belgium, France, Denmark, Poles, Canadians, Czechs, Aussies, Yugoslavia, and Norway. Traitors were executed, even one in Norway.

In Asia, the US dispatched some 800 Japanese civilians and ex-soldiers for War crimes. The Brits, Aussies, and Soviets more. The Chinese administered a more chaotic non-trial form of justice on enemy collaborators and sympathizers. The US avoided more trials by succeeding in bombing or torpedoing the Japanese ships carrying the Japanese American, resident Japanese of the Philippines that had gone over enmass to the enemy side.

The US and UK also went after traitors. Many ex-British and American citizens were saved by their renouncing citizenship when war started, but those that kept US, UK citizenship were summarily executed initially in the post-war, when found, then due process converted that to treason trials. US traitors sentenced did not face death normally, but the Brits executed a few traitors they found after the "find and shoot" phase ended, including Lord Haw Haw.

Curiously, the predominantly Jewish lawyers of the ACLU were conspicuously silent during this whole process as the Soviets had strongly endorsed this "victors justice", in a way they are now certainly not, when it comes to defending the "precious liberties" of enemy Islamoids and enemy sympathizers or associates here in the USA.

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

Just another friendly reminder that when nations are truly serious about dealing with an enemy, the civilian courts are silent. The "privacy rights" of unlawful combatants and enemy within would be considered a pathetic joke coming out of the mouth of anyone in WWII who spoke up for preserving the enemy's or traitor's "enjoyment of sacred liberties". So far the Left and certain deranged "civil liberties absolutists" on the Right would rather the US taxpayer pay billions in legal assistance to captured Islamoids than sanction intelligence activities that actually capture more. How can they be considered serious???

Another point. Even if the Left accepts that there is too much emphasis on Islamoid enemy, that for reasons of reality or just the convenient semantics of word-parsing "war definitions" --why is the Left so reticent to demand we use power elsewhere? Like the 38,000 a week being killed in the Congo, addressing the relentless corruption in Mexico, trying to save the black Christians and animists of the Sudan being mass butchered by Arab Islamoids? Why is the Left of Europe and America so fixated on terrorist rights to the exclusion of other issues? Why is it that liberation of East Europe, Bosnia, Kosovo, Kuwait, East Timor, Afghanistan, and Iraq has only come over the strong objection of Lefties who wish only for diplomatic talk while butchery or genocide continues? Why have the liberations from oppression not come from the Left, but from "Right Wing" figures like Reagan, Bush, Howard - and Centrists like Blair and Clinton? Why was there deafening silence from the Left in Europe and America about the Rwandan genocide and faith that "Kofi's moral authority" was adequate?

Posted by: Chris Ford | January 7, 2006 04:01 PM

"Some factoids:
1. During the Civil War, President Lincoln suspended the right of habeas corpus, a prerogative that the Constitution grants to Congress alone. When a federal court declared his order unconstitutional, Lincoln ignored the ruling. His administration locked up 10,000 to 15,000 people, including some whose only offense was to denounce the war. Hardly apologetic, Lincoln predicted that history would blame him for making TOO FEW arrests, not too many."
Posted by: Chris Ford | Jan 7, 2006 4:01:57 PM

That's the problem, Chris Ford. You put out 'factoids' instead of facts.
It has already been explained to you that Lincoln suspended habeas corpus ACCORDING to the Constitution, not against it. He FOLLOWED the law, and didn't dismiss it. The Constitution backed up his actions because it specifically allows a President the right to suspend habeas corpus during a rebellion (which the Civil War was).
You KNOW this, Chris. It has been explained to you in recent posts here, by me if not by others. Yet here you are STILL putting forth 'factoids' to support your claims, even though you yourself know these 'factoids' you put forth don't portray the full historical picture because they leave out 'facts' that disagree with the argument you are putting forth. You are misrepresenting history and relying on the ignorance of others in order to support your arguments here. Please spare us your 'factoids' and stick to the 'facts'. That you are still using that misrepresentation of Lincoln when you know it isn't true is very telling indeed... you obviously value your strange, paranoid McCarthyite agenda over the honest truth.

Posted by: ErrinF | January 7, 2006 04:42 PM

Protecting us from our enemies is one of the most basic duties assigned to the Executive branch. It's just that simple.
Posted by: Chris Ford | Jan 6, 2006 2:35:38 PM

And yet you don't hold Executive Bush accountable for 9/11 at all, and even excuse the fact that Osama Bin Laden hasn't been caught. Typical Bush apologism.
The apologists demand that the president's most important task is to protect us from our enemies, and yet, when you bring up the fact that that very same President failed to live up to that task on September 11th, 2001, they suddenly start throwing forth all the excuses and attacks they can (i.e. apologism).
Here's my solution to this domestic surveillance scandal: We wouldn't have to be dealing with it if we had a capable executive in charge in 2001 that fulfilled his duty to protect us rather than failed at it. Same goes for torture. Same goes for the war in Iraq. We wouldn't be dealing with ANY of this nonsense today IF we had a competent executive in charge of our government during 2001. Use all the partisan propoganda you want to label me a 'Bush basher', but the real fact of the matter is that all I'm doing is holding this president accountable for failing at 'the most basic duties' (as you put it) of the Executive branch. Why don't you try holding Bush accountable for once instead of always making excuses for him?

Posted by: ErrinF | January 7, 2006 05:03 PM

The text of the Congressional Research Service report: http://www.fas.org/sgp/crs/intel/m010506.pdf

Commendingly, many of the same arguments and authority cited by it were cited and brought forth on this same blog. The final conclusion of the report is that the precedent upon which the Executive branch is standing is not as rock-solid as the conviction of the correctness which it espouses.

Comments and thoughts?

Posted by: Matthew | January 7, 2006 05:34 PM

Emily-Bravo for bring this vital albeit parochial legal issue to light. It makes one wonder if the Bush admin believes there are any limits to their power. The initial answer has to be no but other Constitutionally mandated bodies would disagree. Many groups have questioned the legitimacy of the Bush admin's expansive definition of executive power, but the final word boils down to a few simple legalities.

If the Bush admin felt FISA was a Cold War relic, they had the option during those 43 X 45 days the order was recertified to have the solicitor general go to the Supremes and ask for a change in at least timeliness if not execution of the FISA process. Or, had the White House felt the entire law needed to be altered, again had a majority in the Congress and the unfettered ability to get their side to make needed changes. Given how much latitude both Senate and House has given the admin, I find it hard to believe they could not have gotten FISA altered to suit their needs. No such effort was ever made. Today, a Congressional Research Service study concluded this entire program of domestic spying without FISA support was executed on at best a legal frond. From this action, one can only conclude that the excessive use of executive power which has pervaded the Bush team's actions should come to a dead stop and be evaluated. What would a resonable person do under similar circumstances?

Bush claimed the Congressional Afghanistan Resolution provided them with the requisite power. In addition, he White House claimed that the Constitution gave them all the required powers. I guess that the FISA process was lost in the shuffle. In short, it appears Mr. Bush and his colleagues believe they needed neither support from the Judiciary, a Congressional change in law, or lastly, any Constitutional support. I guess their powers are unchecked by anything, Constitution included. My sense is the CRS is dead on target! That is only the first round in what will be many.

Posted by: DarkHorse | January 7, 2006 05:50 PM

Matthew - You are now complaining you can't find top-rated legal analysis blogs Powerline and Volokh Conspiracy on the Web, and they don't exist, and I was misleading you as to their existence?

Pathetic.

I bet you never bothered to open up the Link to John Yoo's analysis of the legality of Bush's war powers as well. A burden for you, it seems, even though Yoo is the one that is the prime mover in Bush's war powers interpretation, and you theoretically at least, could have learned what his thoughts are on the surveillances. Nor did you read the henry holzer Link on Youngstown, I bet. You can't expect your opponents to do your homework for you - whether or not you can is another issue.

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I find it hysterical that Pelosi-flipped "war hero" John Murtha was in a Virginia Vets meeting with fellow Dem James Moran, and the Virginia guard troops there dissed him as weak-kneed and undermining their efforts in Iraq. Worse, Murtha said to reporters there that Bush's troop reductions were not evidence of a victory but a defeat, that Bush should admit we were defeated, and urged Bush to accept reality and more "rapidly redeploy over the horizon" But then even worse for the foolish old guy who is now a puppet of the Pelosi Left, Ayman Al-Zawahiri released a tape the same day. In which he said Bush's troop reductions are proof that the holy warriors defeated the American crusader in Iraq and he should admit it.

No evidence Murtha and Al-Zawahiri let each other know ahead of time that they were expounding the same point, but point taken nevertheless. If Murtha has friends and family, he should let them assist in salvaging his reputation as both a patriotic American and as someone that served long and honorably in the military.

What's next? Osama telling the American public that since "Mother Cindy" has total moral authority, she should be listened to instead of Bush about the "freedom fighters" and the Zionist Plot to invade Iraq?

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JZ - Nice post. I particularly agree with one paragraph that seems to sum up my general view on the Islamoid war as well, and it's worth repeating:

" As much as they would like it, our struggle against Islamic terrorism won't be resolved in the courtroom, or by increased aid and sensitivity, or through the good works of the UN. If it's going to be resolved in our favor, something I still think is in doubt, it will require deploying our capabilities to the fullest. Tying up a second-term president with attempts to handicap him, or worse remove him from office, over actions he has taken not to subvert his opponents but to prosecute the war, only serve to weaken our position."

In war, it has always been OK to criticise the President in general terms or for other policies besides those related to prosecuting the war sucessfully, especially domestic policies. Areas where even Bush supporters believe he has not been successful. But traditionally, America has not tolerated open advocacy of enemy rights, us being too hard on the enemy combatants. Or tolerant of those seeking by every lawyer, propaganda, and slur tactic, to undermine every aspect of the will of the people, acting through their elected Executive, in fighting that war. In Vietnam, in the latter years, this was crossed somewhat, but never so openly and vehemently as the Left is doing today. When an American Lefty is all but indistinguishable politically from a Algerian living in Waziristan wearing a bin Laden T-shirt in how they feel about America, Bush, and the "precious liberties" America must accord "holy freedom fighters" - IMHO, I submit the Left has a big problem coming - as more and more Americans realize many in their camp are, for all appearances, open enemy sympathizers and supporters fighting against the President and the military waging war against the Islamoid foe.

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Jaxas -

"Another condition was the inferior insulation on the I-beams that formed the infrastructure of the trade towers. Had a more substantial insulation been used, this attack would still have been dreadful, but deaths would have been in the hundreds instead of the thousands."

I know you probably do not belong to that mindset, but there were indeed people, NYC radicals especially, so avoidant of the notion that we were attacked by Islamoids seeking mass death on 9/11 that they DID expound the theories of "cheap, murdering Republican mayor" who killed firefighter heroes by denying communications, and "THE REAL CAUSE" of mass death was inadequate skyscraper design and "insulation" from greedy capitalist scrimping. Both rants totally ignore that Islamoids TRIED to kill everybody in the WTC plus many more in hoping the buildings would immediately collapse and kill more. Same as in 1993.

If the Jihadis had been slightly more skilled pilots and dove to 50 stories lower to the base, they could have bagged an additional 40,000 infidels trapped to burn alive. And there is a range of probality that says the skyscraper(s) could have collapsed immediately if impact had been at a slightly different angle, location, or aircraft speed - with or without the radical's "super-duper" insulation solution to terrorism.

It's the same crap we hear in the war. Bush murdered soldiers. Inadequate body armor murdered soldiers. Inadequate vehicle armor murdered our soldiers.

No, our soldiers have been killed by lawful and unlawful combatants, not Bush or technology deficiencies. The same Islamoids that many wish to cosset and give the best comfort, care, most new "rights", and the finest lawyers the taxpayer can afford to assist their terrorist cause and avoid concequences for their wholesale violation of Geneva.

Posted by: Chris Ford | January 7, 2006 06:04 PM

Of course, much depends on whether - in a true or even literal sense - the U. S. is at war. Sure, the President (and V. P. and Sec'y of State, among others) have declared that we are engaged in a "War on Terrorism." But Congress, that declarer of wars, has merely authorized the President to engage our military against enemy forces, etc. This would seem to be less than "wartime" as such have been defined in earlier national history.
I'm not saying that one couldn't make some case, but judging by the fact that the Olympics are still on, national sports championships being contested, no rationing (of anything!), no wartime industrialization, I'd have to say there's little evidence that these emergency powers have much footing. Which enemy are we to keep our secrets from? Part of our difficulty is that the "terrorist" is neither a state nor a clearly defined group nor even profileable (if that could be a word) individuals. And no, don't pounce, because few of us - on any branch of thinking - regard these persons as benign. The matter is that we have been led into a shadowy combat against ill-defined enemies with the attitude that it's "war-as-usual" and so we're at war on a wartime footing.
Much of the U. S. populace believes - as scant as the evidence has been (and will continue to be) that we are in fact involved in a war with terrorists. We and most nations in the world are "in conflict" with terrorism and its adherents. There's a difference, and it's a very important one. I suspect that little by little, fewer people will find themselves persuaded that the present activities of the U. S. government is having a positive effect on the core of the problem. Aiming guns at an ideology is not going to resolve the problems. Whether we accept the bases of someone elses arguments or not, eventually we have to come to grips with the complaint and take actual steps to find workable resolutions. But getting back, if we were "at war", how would we ever know if we'd won?
Unlike many in this discussion, I have a difficulty seeing anything that George W. Bush has actually done right. Given that Colin Powell - the most respected member of his administration and one whom many Republicans liked for a presidential candidate - is out and not in favor one might well ask where is wisdom in this administration. Reason prevents me from buying a "war" that has no goal. Are we going to pacify a philosophical view of the world?
People have to start looking at the world for themselves. In 1950, everyone thought Joe McCarthy was hunting the communists in our midst. Kids ran around the playground (yes, at my school) making machine-gun sounds and shouting "I got ya, ya commie!" Finally someone with uncommon courage stood up and named the shame; the movement died in hours. It's no different today.
We've got problems, even enemies, but as a nation we've been backing a bass-ackward approach to settling things and gaining peace of mind or whatever else we're supposed to get in "victory." We've got to start looking at all sides of the issues and not "trust" someeone because he's been elected. The electorate can't make mistakes?

Posted by: Jazzman | January 7, 2006 06:21 PM

Chris,
I went to the web addresses you specificed to look for some nebulous "court decisions" which you referenced and because the websites were crap I'm the one not doing my homework? I was trying to help you out with yours, but you kept giving me the wrong instruction sheet. But never mind: I think after 48 hours, the essential point is proven. You either have no clue or no regard to the essential reality of the factoids which you throw out there. I guess it's a Bush-esque technicality hair-splitting to the aphorism: "You're entitled to your own opinions, but not your own facts."

Jazzman, nice post. The administration has had cover provided by the Republican House & Senate, but even they're having to start distance themselves. And as the details/scandals/misdeeds start coming out, chinks in the armor is starting to show, and except for defending itself and potentially pardoning its friends, I think the Bush presidency is, for all intents and purposes, done.

Posted by: Matthew | January 7, 2006 08:01 PM

Chris ....... Pretty good post, actually. I have agreed with and supported your assessment of the unimportance of a formal declaration of war (even though I lay claim to libertarian tendencies and our joint primary reference for our agreed position on this comes from that FDR lefty named Robert Jackson). But this is a straw horse in the debate. Jackson's purpose in this part of his opinion was to set this particular Constitutional argument aside so he could get into the meatier Constitutional question of Congressional Powers vs. Executive Powers and I would contend that his reasoning here was equally as astute, and as germane to the FISA matter as it was to the Steel Mill matter. Just as the Constitution should be seen as a whole, so too should Justice Jackson's concurring opinion, and, like the Constitution, this is not so favorable to the Government position, as you are no doubt aware.

I also agree with the essence of your assessment of the practical effect of the UN Charter language regarding the justification for war, namely limiting it to "self-defense". This has, of course, led to an expansion of the definition of the term "self-defense" beyond anything we would have possibly imagined 55 odd years ago. Our Constitution has no such limitation, but we have, as a sovereign nation, committed ourselves with the International Community to live within the constraints of this language. Whether we should have done so or not is a different debate. I think it is beyond question that our pursuit of Al-Qaida and Mr. Bin Laden is justifiably rooted in "self-defense"; Iraq is an entirely different matter, better discussed in the thread "Nine Arguments for War".

What I do take issue with is your stereotyping of the left, the right, libertarians, Democrats, Christians, Islamoids, and so on. Seriously Chris, none of us are so simply described; for damn sure, I am not. Nor does it help or hinder your arguments themselves. It is simply unnecessary. A persuasive argument can come from any source, so too an unpersuasive one. The stereotyping serves no useful purpose other than to appeal to emotion through pejorative means.


Pleno Jure ........."What do I think? I think that anyone who can make the case that " The greatest happiness of the greatest number" has either been jeopardized or salvaged, as the case may be, wins the debate."

And your position on this case is???


SiliconDoc......."gratuitous use of profanity"


Jon Z ......"Despite a very robust debate joined by very well-informed contributors, not a single mind has been changed, or even swayed in any meaningful way. The debate could be about any political topic, and I'll bet we could predict in advance the views the more serious contributors."

Not claiming psychic powers, I can't know whether your first sentence has merit. As to the second one, I would have no hesitation in betting against you. Having occasionally changed my own mind over time, I am loath to predict my own views.

As to your last paragraph....You know Jon, if I knew how much discretion Bush has actually taken, I might very well agree with you. I dare say there are others here who might as well, given the same knowledge. So where we part company here is on a much narrower matter than you might otherwise assume. To some of us it is a question of discretionary limits, and the insistence that there must be some. I expect we would find substantial differences among us over the amount of discretion that is tolerable and what those limits should be.


Jaxas ........ I do agree with your basic argument in your first post, certainly not in your second.

It is unfair to lay the conditions extant on 9/11 entirely in Bush's lap. These conditions have existed largely unchanged through many administrations to include airport security, the walls between intelligence agencies and law enforcement agencies, and so on. The attack plan itself was hatched long before Bush took office.

You are correct as to the matter of insulation. Bin Laden himself was surprised at the level of success this attack achieved. But luck seems to come to those who have prepared for it and, being an engineer, he had carefully planned his strike 2/3rds up the height of the building at its most vulnerable structural point. As a fellow engineer, I can appreciate the sheer engineering skill and ingenuity applied to many aspects of this operation, to include conceiving the IED value of an airliner, choosing one loaded to the gills with fuel (non-stop flights out of the East Coast taking off close to the target), and so on. The enemy are very intelligent people, determined as well, and not to be underestimated.

It would not surprise me if somewhere, sometime in the past, some conservative minded engineer questioned the adequacy of the insulation and perhaps wrote a memo pointing out this vulnerability in the structure. I doubt he foresaw an airplane as the cause of the fire this insulation would not resist. It is remarkable that the structural design of these buildings anticipated the need to resist the impact load of an airliner, which they did. Hindsight is always cruel. It is always true that in our view, when bad things happen, they shouldn't have happened and it must be some one's fault.

There are in this nation hundreds if not thousands of other targets just as vulnerable to this level of intelligence and imagination as the World Trade Center was, and no President is going to eliminate that condition entirely. This is not to say we should ignore risks and not anticipate and/or manage them, but we are simply not going to eliminate them. On the other hand, with the kind of focus, time, discipline, and meticulousness that a 9/11 type operation takes to pull off successfully, we are not going to see them very frequently, no matter how bone-headed we might be. 9/11 was a devastating blow to our self-image, to our psyche, to our pride, to 3000 odd members of our population and their families, and to the economy of New York in particular. To the national economy, to our military capacity, to our national security, it was not actually even a large blip; it just seems like it was.


Jazzman ......." We and most nations in the world are "in conflict" with terrorism and its adherents. There's a difference, and it's a very important one."

Now this is a really well drawn distinction. And yes, I remember McCarthy too.

"The electorate can't make mistakes?"
Sometimes it does, sometimes it doesn't. It is too bad that General Powell did not run for the top post when he could have. We might then have had at least the opportunity not to make a mistake.

Posted by: Cayambe | January 7, 2006 08:56 PM

The Left's case for enemy privacy seems to be a Catch-22. We don't know who the Islamoids or China spies or Israel spies are, but you can't go looking for them without a warrant, but you can't issue a warrant because you lack FISA probable cause, therefore the Constitutional and suicidal path we must take is to cease looking for our enemies or traitorous spies until a "crime" like 9/11 happens. Then lawyers in robes will sanctify the search. Fairly insane, deranged liberal/Lefty logic, but par for the course.

Suppose we get an Islamoid on the loose we have tied to terrorism - indentified as enemy sans our dear lawyers in robes input, like from the Brits or Israelis or Saudi intel folks, and find he is calling to the UK, Pakistan, and America - the Lefty belief is that we should lof course listen to the phone calls being placed to the UK and Pakistan to save lives or defeat a nest of Islamoids, but avoid learning who the terrorist is calling in the US because "the Rights of a possible American citizen on the other end who may or may not be a traitorous Jihadi?"

Bush as CIC thinks that is a dangerous and ridiculous way of thinking. So do the large majority of the American public. Only an ever more strident and out of touch minority determined to extend "rights" to the enemy in ways we have never done in any other conflict believes in the right to enemy privacy absent "probable cause" and lawyers in robes blessing the pursuit of enemy agents here or abroad with their "legitimating warrants".

Matthew -

I'm sorry, but it's rather sad when you all but admit that you don't know how to look up Powerline or Volokh Conspiracy on the Internet - then tout your ignorance in saying that your lack of any knowledge of the issue proves my "factoids" wrong - Especially given you likely don't even know what a factoid is. Reread what you posted, and admit it's downright embarassing. Can you imagine yourself in a school or work situation where your teacher or supervisor gave you references you should look up, then you show up two days later saying you didn't understand how to look up the references therefore the teacher or supervisor is wrong?

Embarassing.

Pity the WP blogs don't have a "delete" after posting feature. You could have used it wisely.
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Not to leave you on such a sour note, Matthew...so I will say on Emily's last thread you discussed very well why the death tax is mostly another wealth transfer scam to the megarich that paid no meaningful taxes in building up their business and corporate wealth and seek to pass it on tax-free to perpetuate generational wealth. You correctly point out that the Owner Class escapes the taxes and double taxes that fall on the poor and middle class wage earners, not the elites. The problem of course is while a quasi robber baron like Bush should be unelectable against a solid Democrat, the Left gave the Democrats a quasi robot, then settled on a phony war hero and quasi-traitor who dined with the N Vietnamese enemy at the finest Parisian establishments. A man who was actually dumber than Bush at Yale and who pays off FICA's double taxes within days each January while the poorer mere "in the low double digits" multimillionaire Bush may toil for a few months.

Good luck to the Dems! While I hope the 2006 election heavily punishes Republicans for corruption and greed on a scale not seen since 1994 when the entrenched Dem whores were smote, Democrats will lose again in 2008 no matter what if they run "Islamoid enemy rights foremost" candidates.

One thing I would love from the media is for them to stop their "cult of victimhood" and anti-war crusade long enough to detail the K-Street - Government nexus of corruption, nepotism, and revolving door "good 'ol boys networks". I would love for voters to learn who the whores are, and who makes money on past gov't ties, and who in each of the 535 in Congress and the Executive or former "biggies" have family members whose jobs have been considerably upgraded as "DC players" compared to what they were before hubby or mummy went to Congress or were given a plum committee or leadership post. For that matter, I'd like to see how the families of Federal judges have fared in "power leveraging" into jobs that fit them better than the housewife or liberal arts post-grad wastrel son positions they had prior to the family member's acession to judicial power.

Same with the states and how spouses of connected people are all too frequently given quid pro quo and made into things like Gov's wife who somehow sucks all the corporate bigwigs to our firm and is a genius in cattle futures...

That it is all "technically completely legal" thanks to laws the beneficiaries passed in Congress to CYA - is besides the point. In every other country the shit that the DC insiders do is illegal at least on the books, though it is winked at in all too many countries.

Posted by: Chris Ford | January 7, 2006 11:00 PM

Cayambe -

I want to start by also expressing appreciation of your hypothetical Supreme Court dialogue. It was hilarious, and it belongs on SCOTUSblog or sent to the almighty lawyers in robes themselves.

Your substantive commentary on my blog posts:

"What I do take issue with is your stereotyping of the left, the right, libertarians, Democrats, Christians, Islamoids, and so on. Seriously Chris, none of us are so simply described; for damn sure, I am not. Nor does it help or hinder your arguments themselves. It is simply unnecessary. A persuasive argument can come from any source, so too an unpersuasive one."

You appear to fall into the same trap as Spielberg did with "Munich". Abandoning the simple for the sophisticated which anyone of intellect can grasp and appreciate - but in emphasizing the devoted family characteristics of Islamoids or the kindness to dogs of Nazis - fogs the moral landscape we must work in. Nazis, animal lovers or not, had to be defeated and taken out of power. An Islamoid hijacker like Atta may have been a sensitive young man, a very good urban planner, a man who entertained his landlord with droll jokes in perfect German, and had sisters that loved him. But he also did his part for unlawful combat and personally killed 1940 +/- American roasteees, and helped take out billions of wealth on a 3/4 million investment in unlawful combatant's death plots..

We have to take a sweeping approach to confront the foe. "Nuance" is counterproductive. Sorting out the "good Nazis from the bad" is not a wartime function. Acknowledging that a devoted young communist and ardent Stalinist awarded "Hero of the Soviet Union" for mining 60 tons of coal a day does not negate the 80 million dead victims of communism nor the stultifying gray bleak existence in fear and want that hundreds of millions were subjected to.

I am sure both of us could discourse on Leftists that were not anti-Americans, liberals who were not weak, and how the racists of the far Republican Right in the 60s-80s were only a small part of the Party.

One of the great things the Republicans did was purge the overt racists out to help send the message that poison within was not good. It may not have payed off for blacks still on what - even black democrats seeing their votes taken for granted - cynically call "The Plantation", but the mainstream understands that a Trent Lott is punished while a Byrd is tolerated in the other Party.

The problem is that we cannot afford to let the bad reside with the good. Or the "good" in a larger "bad" like honest Burghers legitimate Nazis, or "sensitive Jihadis" legitimate Islamoids through their presence.

Right now, the label "Lefty" is not some brainless catch all phrase of the nefarious intentions of each and every individual, but a useful label - like "Nazi" - to describe a movement harmful to the West. The usefulness of that term is to try and keep the anti-West, anti-American, society reshaping elements of the Left from destroying the Democratic Party. Much as the Republicans dealt with the menace of the racist element within its ranks, but now faces how to best deal with counterproductive elements of the Christian Right...

It may be simpler for you, Cayambe, to acceed to the fact labels do have usefulness in broad framing posters and debate positions of other posters though no doubt we would learn if we only had time that Lefties love dogs, too, and are sensitive...just like Islamoids. And obviously, Islamoids may be more sensitively called "radical Islamists" "Islamofascists", "Salafis", or exquisitely sensitively "Mujahadeen Holy Warriors" as Reagan extolled them, or less PC - as "Beslan kiddie rapers and killers" , raghead scum.

But we are long past pretending that, as the Islamoids of CAIR want, that Islamoids are "enobled" with just grievances, and no more likely, they say - than blacks, Lutherans, chinese, and especially the evil white Christian people to act up, statistically. America's greatest menace is not "the white Christian McVieghs". With CAIR admonitions that Hollywood better kow-tow to never depicting Islamoids as enemy - or the Religion of Peace will pin that script to the slanderering defamatory to Islam, the SoCal Jewboy's chests - with a knife.

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It is simply my strong conviction, Cayambe, that Leftist elements are more interested in undermining their prime partisan target - the Bushhitlerhalliburton Chimpy - than they are in stopping Islamoids from WMDs or a Beslan kiddie rape/buchering here.
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As for the "Magic Islamist defeating" insulation the WTC Japanese design engineers back in the 60's SHOULD have considered and demanded then, as Jaxas claims...

What other ex post facto "technological solutions" to Islamoid enemy threats are mandated? That all American shooping centers of the 50s-20s era should have anticipated that ACLU protected Jihadis would potentially make them targets? That designers of generations earlier should have factored into their designs that the Leftie new spin on the 4th Amendment as a enemy sanctuary shields the attackers seeking to take out the Hoover Dam, the Brooklyn and Golden Gate Bridges, and any place known to house Islamoid's mosques out of bounds from "invasions" by radiation monitoring devices outside without a lawyer in robes issuing "probable cause" ??

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Binnie was actually in the minority. A good conservative engineer is Binnie, aside from delighted that his Islamoid engineering corps consulting on the attack from Malaysia back over to the USA radical Muslims involved had been wrong.

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There is so much that that bin Laden can clarify on the attack that I hope we finally get him on the waterboard before ACLU Jewish lawyers can safeguard his "rights" under the US Constitution. But given the defenders he has in the West, I hope he gets killed instead being captured. Better for everyone involved if the American Islamoid-friendly lawyers never get their chance at million-dollar paydays they hope for from US taxpayers expected to pay billions just so other lawyers in robes can get their payday plus some - from US taxpayers.

Posted by: Chris Ford | January 8, 2006 02:00 AM

Chris Ford,

You write:
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"You presume that Congress can overide Article II and force the President to PROVE he has reason to go after each enemy agent by getting a court blessing for each instance. This is really no different than Congress passing a law that says before each use of force on the enemy on a battlefield, the President must have a lawyer in robes say "Omni Domni" after reviewing the President knows for sure there are no innocent or possibly guilty Americans inside prone to be killed by an A-10 warplane, say, in an Islamoid terror training camp in Afghanistan."
===========================================

No, Chris, I don't presume that Congress can override Article II. But I do disagree with you about its meaning. I don't think that a grant of powers in a given area, in the Constitution, automatically confers a grant of exclusive authority to determine the scope of that area. And I think that in other areas, you would agree with me.

Congress has the power to regulate interstate commerce. Yes. But does Congress also have the exclusive authority to decide what is, and what is not, interstate commerce? No, it doesn't. The power to make that determination ultimately rests with the Supreme Court, short of a Constitutional Amendment.

You surely don't think that the fact that Congress has constitutional authority to regulate interstate commerce also gives Congress the right to announce that, actually, all commerce, even intra-state commerce, is actually interstate commerce, and then to regulate it as 'interstate commerce', do you?

The problem, as I have tried to explain before, is that if each of the different powers granted in the Constitution also includes the exclusive authority to determine the scope of that power, then each power is, in effect, the same, and each branch can claim the prerogatives of the others.

So, you insist that the President has Article II authority to wage wars. And you're right. But Congress has the exclusive authority to levy taxes. Now what if the President decided that, actually collecting taxes to pay for a war is really a crucial part of waging a war, and therefore is really part of his Article II authority. Would you say that he has the authority to make that determination? But by so doing, he would be usurping the Article I powers of Congress. No. It cannot be that his authority as Commander in Chief includes the right to decide what the extent of his authority as CiC is.

Now, it is _not_ the case that COngress is granted no military authority. In Article I, Congress is granted the authority to, "make Rules for the Government and Regulation of the land and naval Forces," and also, "and make Rules concerning Captures on Land and Water." But even if Congress had no military authority whatsoever, that would still leave open what authority Congress had to set up a system to determine whether something _was_ in fact, a military issue or not.

Now you're right to point out that we shouldn't have a court overseeing every military decision made on the field of battle. Of course not. But then a battlefield is very obviously military. The situation is much less clear when we're dealing with surveillance of US citizens on US soil. There, we're on the very edges of executive authority, where it borders the authority of other branches. In that situation, on the boundaries between branches, one branch shouldn't, if possible, be given exclusive authority to decide where the boundaries are. (And if any branch does have a final say, it's the judiciary, not the executive.)

I agree with you that Article II authority includes the authority to spy on agents of a foreign power. Would you agree with me that Article II does not include authority to spy on US citizens in the US who are not agents of foreign powers? If we can agree on both of these premises, let's see what happens:

For the purpose of argument, just for this hypothesis, I'll temporarily surrender my contention that, since FISA regulates the question of _who_ falls under Article II and who doesn't, and not what's done, once it's determined that a person does fall under it, it's not an interference with Article II. Instead, I'll adopt what I think is closer to your position, namely, that if Congress interferes with the executive's dealings with foreign agents, it's usurping the executive's Article II powers.

Okay, so, Congress passes a law, and intervenes in the president's wiretap of a person who really is a terrorist. What happens? The executive and legislature are both claiming authority to deal with the situation. In such a case, it goes to the judiciary, and they, realizing the strength of the executive's position, agree that Congress unconstitutionally interfered with legitimate executive authority. What convinces them? Mainly the fact that the guy being spied upon really was an agent of a foreign power, and therefore really was a legitimate target for Article II power.

But now, a law is passed that keeps the executive from tapping the phone of Betty Anderson, an 85-year-old resident of Frankfort Kentucky who likes to garden in her spare time, and, despite her numerous grandchildren, has no connections to any terrorist organizations whatsoever, and is not the agent of a foreign power.

The executive, though, claims that it does have the authority to spy on her. Congress disagrees, and, once again, we have a dispute between branches that goes to the judiciary for resolution. In this case, the judges hold that Congress was well within its rights and that the executive overstepped. The main thing that convinces them? The fact that Betty Anderson is clearly no agent of a foreign power whatsoever, therefore not a legitimate target for Article II power.

We could do this over and over again for each person, and the decision over which branch of government had the authority would ultimately come down to a determination of facts about the potential target by the judiciary. _Which is what we have right now anyway, in FISA_. Congress has no right to stop the executive from spying on foreign agents. The executive has no right to spy on US citizens that are not foreign agents, without a warrant. (If any body did have a right to authorize such a thing, subject, of course, to the 4th Amendment, it would be Congress, not the executive.) Which branch has rightful authority depends on the facts of the case, which the judiciary, in FISA, judges. Is that such a bad solution, Chris??

Thanks for your thoughts.

Posted by: Beren | January 8, 2006 02:49 AM

I hate to ask, really, Chris Ford, but what's with throwing in "Jewish" in the middle of "ACLU lawyers"?

Posted by: Beren | January 8, 2006 03:06 AM

I believe Mr. Ford is what is genernally known as a SAWB or "smart ass white boy".

Posted by: Impeach Ford | January 8, 2006 07:54 AM

First of all not all Islamic people are our enemy. Why do western powers claim to have a right to imperialism and therefore the right to do anything they want to another sovereign nation of less strength and capability? Why aren't we establishing diplomatic relations with Iran?
Wouldn't that make Bush even a bigger hero that he thinks he is already? Like Nixon going to China. Peace not war, is really the only civilized solution, of course, that is assuming we are civilized.

Posted by: Gentlemen | January 8, 2006 08:04 AM

I believe the original NYTimes article was intentionally sensationalist for some reasons unknown, perhaps to force Congress into dealing with the technical issues and to loosen the restrictions by the spirit of FISA which the Justice department has had reservations over.

It's not clear that "traffic analysis", which includes the calling patterns that the telcos are turning over to the NSA, is a violation in the letter of FISA, since it is not the "contents" of the communication.

I also have a hunch that the NSA had capabilities prior to 9/11, which probably included traffic analysis, to defend against cyber warfare. The fact that they are monitoring communications does not implicate them in FISA violations.

It's also not clear that data mining all communications which targets foriegn agents is a violation either, since it is not "intentionally targeting" US persons.

It's also interesting to note the operational procedures at the NSA prior to 9/11. Whenever a communication was found to contain US persons, it was immediately erased by law. The fact that the communications were trapped in
the first place was not in violation of the law. Therefore, you could argue that domestic wiretapping by the NSA is and was legal for foreign intelligence
purposes.

Also in the aftermath of 9/11, the field of battle was on US soil. I think Bush was completely within his rights to defend US soil by monitoring domestic communications so long as the threat was reasonable. Remember that "connecting the dots" was the key phrase for many moons, and that intelligence official after intelligence official was brought before congressional committees with hard questions to answer. And that anthrax cleared out the Senate for some time. It's hard to have a democracy when the lawmakers can't go to work.

Posted by: chris | January 8, 2006 09:13 AM

'Matthew - "So, Chris, what are those 8 cases?"
Ummmm, you mean the 8 Lower court decisions that you refused to go over to Powerline.com and Volokhconspiracy.com after I told you where they were, to read them, and return and discuss what you thought on Emily's blog?'
Posted by: Chris Ford | Jan 6, 2006 10:27:37 PM

'Matthew -

I'm sorry, but it's rather sad when you all but admit that you don't know how to look up Powerline or Volokh Conspiracy on the Internet
Posted by: Chris Ford | Jan 7, 2006 11:00:05 PM

To get to the Powerline blog, it's powerlineblog.com. To get to the Volokh Conspiracy blog, it's volokh.com.
What's sad is that Chris Ford doesn't even know how to get to those sites via their web address. He never told Matthew to look up those websites; He specifically told Matthew to go to those web addresses. Matthew obliged, only to be MISLEAD by Chris Ford to bad websites. Just goes to show what happens when you take him for his word.
Again, this goes to the heart of the problem with this factoid-loving, Islamoid-hating extremist Chris Ford. If he can't even give out a web address accurately, how are we to accept his historical analogies as being accurate? Whether it's a messed-up web address or warped view of history, both have key elements missing from them when you actually take a closer look.

Posted by: ErrinF | January 8, 2006 10:25 AM

OK, ERRINF! AS EMILY HAS SAID, KNOCK IT OFF!

YOU COME OFF AS A FROTHING AT THE MOUTH MARXIST WHO THINKS HE/SHE CAN SHOUT DOWN SPEAKERS OR POSTERS YOU DISAGREE WITH BY A CONSTANT STREAM OF AD HOMINEM INVICTIVES. FUCKING GROW UP, THIS ISN'T A COLLEGE CAMPUS WHERE IF YOU SCREAM LOUD ENOUGH YOU CAN SHUT DOWN AND SILENCE SPEAKERS YOU HATE. YOU ARE IN THE ADULT WORLD NOW - YOU ARE EXPECTED TO OBEY RULES OF DISCOURSE.

YOU DON'T, YOU EVENTUALLY GET DISPLACED. IN THE INTERIM, YOU SERVE AS A POSTER CHILD OF THE DERANGED IDEOLOGUES WHO HAVE LOST IT - THAT MAINSTREAM SOCIETY GIVES THE SAME RESPECT AND ATTENTION TO, AS A "BABBLING TO NO ONE IN PARTICULAR" HOMELESS PERSON REEKING OF WINE AND STALE PISS WALKING THE STREETS.

YOU ARE NOW EVEN BUTTING INTO A DIALOG BETWEEN TO POSTERS YOU HAD NO PART IN PURELY TO LAUNCH MORE SLURS.

IN ONE THREAD WHERE YOU WERE PARTICULARLY OUT OF CONTROL, YOU MADE 54 - YES 54 - OF THE 93 POSTS, MOSTLY UNPROVOKED AD HOMINEM PERSONAL ATTACKS ON 5 MODERATE OR CONSERVATIVE POSTERS THAT YOU POLITICALLY DISAGREED WITH. ON THIS THREAD YOU HAVE 6 AD HOMINEM ATTACKS SO FAR. ONE WAS AN AD HOMINEM ATTACK ON SOMEONE ELSE WHO SIMPLY CAUTIONED YOU THAT YOU WERE REPEATEDLY INDULGING IN PERSONAL ATTACKS ON SOMEONE ELSE. MS. MESSNER SAID WHAT YOU DO SHOULDN'T BE DONE ON HER BLOG.

YOUR RESPONSE ALSO TELLINGLY SAID MESSNER HASN'T SHUT YOU DOWN YET, SO YOU WILL CONTINUE PERSONAL ATTACKS. AND SOME OF THOSE ATTACKS ARE NOT ASIDES INCLUDED IN A POST THAT IS THE THREAD TOPIC, BUT POSTS THAT ARE 100% PURE SIMPLE PERSONAL RANTS AGAINST NON-LEFTISTS YOU SEEM TO HATE _ FROM THE START TO THE END OF THE POST.

AGAIN, KNOCK IT OFF AND CEASE YOUR ONE-PERSON CRUSADE TO VANDALIZE THIS BLOG. YOU KNOW IT'S WRONG, BUT YOU PERSIST.

YOU HAVE BEEN WARNED BY OTHER POSTERS. NOW YOU HAVE BEEN WARNED BY ME.

Posted by: Chris Ford | January 8, 2006 11:29 AM

Good luck on your speech.

Posted by: Beren | January 8, 2006 02:47 PM

I don't know how my post wound up where it did, but "good luck on the speech" was addressed to Amie Severino, whose post appears after mine.

Posted by: Beren | January 8, 2006 03:08 PM

I'm afraid I'm not going to make any contribution to the debate, instead I intend upon taking up valuable argument space to thank Ms. Messner for her recent columns, which have given me ample fodder for my 11th English speech on the domestic spying issue.

Thanks!

Posted by: Amie Severino | January 8, 2006 03:30 PM

Obviously, I meant to say 11th grade...I mean Ms. Messner probably could give me enough information for 11 speeches, but I don't exactly have time for that.

Posted by: Severino | January 8, 2006 03:31 PM

Chris Ford,
"You appear to fall into the same trap as Spielberg did with "Munich". Abandoning the simple for the sophisticated which anyone of intellect can grasp and appreciate - but in emphasizing the devoted family characteristics of Islamoids or the kindness to dogs of Nazis - fogs the moral landscape we must work in."

I trust you're wrong in your view of the American populace. You may be right, but in the long run, I hope not. To suggest that the population has not the intellect to understand this discussion is, I think, to underestimate the American people. Commercial measures are on your side, as the so-called mainstream media has found it most profitable to migrate towards your viewpoint. On the other hand, the stunning rise of the blogs shows a large reservoir of demand for something more comprehensive; I'm not inclined towards the term "sophisticated", as that suggests elitism and I, for one, am hardly that, in intellect or either economic or social status.

I can understand the utility of whipping up the crowd into a frenzy by oversimplifying the moral landscape. But lets face it, the enemy is far more skilled at that than we, as any worldwide transient assessment of public opinion will show. But there is a cost too, as the most effective way to defeat your enemy is by assessing and understanding his strengths and weakness' in the real world within which he lives. The American moral landscape is a very different one than the non-American moral landscapes and we ignore this at our peril; even more so when you oversimplify our own.


"But given the defenders he has in the West, I hope he gets killed instead being captured."

So do I, Chris. So do I, but just because I want him dead. I've no quarrel whatsoever with the Death Penalty per se.... although I would limit its application to a conviction beyond any doubt because our justice system is neither as certain or fair as we pretend, and Republican or not, overt or not, we remain infected with racism and other similar notions that tend to corrupt it. The man himself has removed any doubt in this particular case. His pursuers are most likely to achieve this end if they can bring themselves to see the world as he does and learn how he thinks in his terms. For sure he is no dummy.


Impeach Bush ........ That wasn't necessary either.


Gentlemen ......... "Why do western powers claim to have a right to imperialism and therefore the right to do anything they want to another sovereign nation of less strength and capability?"

They don't claim the right to imperialism. They claim the right to self-defense now against the certain probability of a future threat. It is of course, understandable that you might think this is actually imperialism, as we used to understand the meaning of the word, but I assure you, they don't claim that. As to the less strength part, this is easy. They do it because they can. They are not so dumb as to pull a stunt like this on a stronger nation.


chris (not Ford) ........ All of your points are very good ones, and I am in agreement actually with most of them. The one I don't would as likely come down on the other side as mine, should it get to court. In any event, you have made the best case for the government so far, and if this is the limit of what they are actually doing, it is very persuasive.


Arnie Severino ...... Perhaps you might post your speech when you have finished it. I would be interested to read it.

Posted by: Cayambe | January 8, 2006 05:10 PM

To repeat once again and a final time, the key to understanding this approach to mass surveillance is that it escapes record-keeping requirements.

Posted by: On the plantation | January 8, 2006 06:00 PM

Like the pretty girl and her smart thinking. Bush needs to be restrained with chains.

Posted by: Fan | January 8, 2006 09:36 PM


Posted by Pleno Jure.

Cayambe : Very kind of you to take notice of my brief contribution. I am sure you have read more than this : Pleno Jure ........."What do I think? I think that anyone who can make the case that " The greatest happiness of the greatest number" has either been jeopardized or salvaged, as the case may be, wins the debate."

before asking me this :
**And your position on this case is???**

Actually, my position originated within the
following paragraphs as set forth below :

""Begging your pardon, Jazzman,the blog has not only gone on too long; it has gone nowhere.

Perhaps morality and ethics have more bearing on the issue than confused legal arguments.
Why not give that tack some of the wind blowing around here? ""

I was simply suggesting a different tack to the discussion of Emily's current thread :
'Domestic Surveillance', for more than the obvious reasons.
Let's call that my position nb one.

Since I thought that STEEL MILLS AND SURVEILLANCE --Emily's title for the Youngstown Co.v.Sawyer case-- introduced an interesting precedent, I allowed this :

""However, if Youngstown Co. has any relevance- though not that apparently assumed by James J. Klapper- going to this link would make some interesting reading:
http://writ.news.findlaw.com/
There is one column there discussing with some authority the relevancy. Turns out our Emily was not off the mark, if you trust that column. There are a couple more, both by learned jurists. ""

My position should be clear enough on that case : worth reading, discussing with some authority the relevancy of the Supreme Court's opinion.
Call that my position nb two.

Now, to what do I think :

""What do I think? I think that anyone who can make the case that " The greatest happiness of the greatest number" has either been jeopardized or salvaged, as the case may be, wins the debate. There is plenty of precedent to consider which claim may best be justified.""

Regretfully, you missed the last sentence in the above quote.
Nobody seems to be interested "to consider which claim may best be justified".
Has the greatest happiness of the greatest
number been jeopardized or has it been salvaged by the Domestic Surveillance?
That case has not been made here or anywhere.

If I were to speak in jest to your question
about my position, I could paraphrase my own statement and say :
"The greatest happiness of the greatest number" has been NEITHER jeopardized NOR salvaged. But I wouldn't do that. Nor would I lament the fact that we tend to go at each others (Americanoids?) throats at the first partisan opportunity available.
I am really tired of that.

The truth is that we know little of the specifics of the "surveillance", yet we tend to call it all these names which most of us associate with snooping and an infringement on our rights. But what if it isn't, the technique I mean? Surely it isn't a wiretap, a splice on your or my phone line? Someone listening at your morning ablution?

I could easily name other things we don't know, conversly, as to the actual harm done to law abiding citizens.

So then, if we are to debate, why not consider the "greatest happiness of the greatest number"-- we are still a democracy, unless we exported all of it to Iraq-- and find out whether it is jeopardized or salvaged by whatever the NSA
has been authorized to do in America?

I believe that is my position nb three.

As to this closing paragraph :
""As well, if we do this right we could even go beyond partisan-based opinions to find that something we all share unites us"".
I leave it up to you and anyone else here to find what is it that we all share which unites us.

Call that my position nb four: I won't presume to tell anyone.

Well, I started with a brief comment to this thread and ended up with this sorry excuse for explaining my position.
Always takes more words to explain something simple. But I believe I speak With Full Right.

Posted by: Pleno Jure | January 9, 2006 04:06 AM

Love that screaming at Errin, while telling her that she screams. Then you call her a Marxist. Guess what Chris, Mr. Label Maker Ford, who cannot have a discussion without labelling others and calling them names. It is you and SiliconDoc that people have trouble with.
Never having met anyone here, you assume they are Lefties, Marxists, Jews. Childish name calling seems to be your forte. Did anyone not tell you that name calling is a cheap and immature form of debate? That you are a child online and we all have to do our time explaining to you to stop name calling.
I read about a case of a White Supremecist in Canada who was recently jailed for being outspoken about his racist opinions and rants. He said White Supremicists are deliberately trying to convert others to their hate by constantly finding a venue to speak on issues of hate and racism. Is that you Chris, using this venue to try to convert others to your ugly racist and disturbed thinking? I see you using every opportunity to name call those of other beliefs, races, and cultures. What has this to do with the discussions at hand?
Why do you have a need for name calling, Holocaust denying, racism, and exposing us to your twisted hate of the existance of anyone n ot white?
You talk like a White Supremicist, you name call like a White Supremicist, you even have a nice Supremicist buddy (or alter ego) in SiliconDoc. Are we experiencing real debate and dialogue here or are we experiencing deliberate forced exposure to White Supremicist propaganda and misuse of the debate forum? If it walks like a duck, and talks like a duck..

Posted by: SpeakoutforDemocracy | January 9, 2006 08:47 AM

SpeakoutforDemocracy -
Debaters on both sides have done their fair share of name-calling. It's just because everyone here is very passionate about their beliefs. Sometimes it gets the best of us. However, it is absurd to begin accusing Chris Ford of being a White Supremacist. I see no correlation between that and what he writes. Calling someone racist is a very serious accusation, especially if you don't know him personally. How do you know Chris Ford is even white?
I have found myself getting worked up about something someone has written on here and have made the mistake of degrading or attacking them. I've been trying my best not to get down to that level and if everyone here tried to do the same, these debates would be far more intriguing and meaningful.
We've about exhausted this discussion though because I keep reading the same thing over and over again. Emily needs to get back from vacation with the quickness.

Posted by: Alex Ham - America's Hero | January 9, 2006 10:06 AM

Cayambe;

I do speak. This forum strikes me as a group of very intelligent men and women lost in a forest and trying to tell the forest from the trees. On the other hand, I feel like the Congressman who had never been on an airplane till he was elected to Congress. During landing, he thought the wings of the plane were breaking apart when the flaps moved.

I do try to force myself out of my comfort zone and listen to very complicated and esoteric subjects such as Constitutional law. However, it is not my forte. I am a big picture person.

The big picture as I see it is a great deal more complicated and yet simpler than constitutional law. I am very partisan. You asked me to speak. So here is what I think.

It is irrelevant to be asking whether or not the President has the constitutional power to spy on the people. In my heart I know that domestic spying is a huge step towards Soviet style totalitarianism. Period, end of discussion.

Posted by: Julio | January 9, 2006 10:41 AM

There have been some complaints of lack of real debate here, and with a few exceptions, I concur. I guess it's the nature of these beasts that extremist ranters obscure the ones who try to argue their cases. No amount of pleading for reason will deter them.

Probably the best point made in favor of the NSA wiretaps is that, pending more information about them, they may not have violated FISA or the 4th Ammendment. If that turns out to be so, then there's truly nothing to see here. Most of the other arguments in support of Bush have been weak, weak, weak; propped up by hateful and simple-minded ideologies but no relevant fact at all. There have been some equally ideological arguments made on the other side, but a great many more substantive points have been argued, especially on Constitutional matters, by the anti-Bush (regarding this matter, at least) crowd.

I have strong opinions, but I try to be susceptible to reason and listen to well presented arguments against my position. My libertarian-conservative friend and I have managed to convince each other on several points over the years, so I know it's possible.

But I think this particular issue isn't likely to have many converts from either side because of two main reasons: 1) The Constitutional issues, while not cut-and dried, weigh heavily against the president, especially on the claim of broad war-time powers for the Executive. Those arguing for unlimited Executive power don't want to hear this, so they yell louder. IMO this sort of neo-fascism is incompatable with respect for reason or the Constitution, so I'm not surprised.
2) Since so little is known about the details of these NSA wiretaps, it really can't be determined yet what, if any, laws were broken. Until such time as we know, defenders of the president can claim that no laws have been broken. While the circumstaces of the NSA wiretaps and their discovery seem very suspicious, that's not enough to prove they were unlawful.

So at best, we've been pitting hypothetical situations against one another. Once the FISA court and/or Congress find out more, we may be able to have a more grounded debate about the legality or illegality of the NSA wiretaps, which, after all, is the primary question.

Posted by: james | January 9, 2006 10:44 AM

Alex - Calling someone a racist or a Nazi is what the leftists do to shut down an arguement that they are losing. Its basic tactics. While I sometimes disagree with Chris Ford's arguements, I do find value in many of the points he (and others here) make. Reducing the discussion to child-like accusations of racism, etc., just cheapens the discourse. Kudos for calling this "debater" to the carpet.

Posted by: D. | January 9, 2006 10:46 AM

Off Topic a bit:

"My own view is that contributors who reflexively oppose presidential wartime discretion are underestimating, dangerously in this case I think, the scope and nature of the threat we face."

Same arguments were used during the cold war to justify decades of intervention around the globe resulting in genocide, terrorism on a vast scale (ie Nicaraugua, Guatemala, East Timor, Indonesia, Cuba to name a few).

We the voting public have no clue when it comes to protecting our "God-given" rights to exploit others.

"I can understand the utility of whipping up the crowd into a frenzy by oversimplifying the moral landscape. But lets face it, the enemy is far more skilled at that than we, as any worldwide transient assessment of public opinion will show. "

Say what? Americans were sheep during the cold war - believed everything bad about the communists, how much more simplified can you get than "Commie bad, US good"???. Clearly we surpass our enemies at whipping up frenzied reaction..

What about the missile gap, peace dividend..?

You can't trust the gov't to tell the truth; there is a 200 year history of lies and deception. All of a sudden they are telling us the whole story? Why would you believe that?

Considering the State Dept. definition of terrorism, we should have Presidents of both parties up before war crimes tribunals for murder, torture, assasination, genocide, germ and chemical warfare - all the bad things we're accusing the "terrorists" of doing. If you try to protect your nation against US aggression, guess what - you're an enemy combatant. How Orwellian!

Those of you arguing this wiretap issue is a mountain out of a molehill, you don't know your American history well enough to be making that claim. Go read "A Peoples History of the United States".
http://www.amazon.com/gp/product/0060838655/qid=1136822133/sr=8-2/ref=pd_bbs_2/002-4301760-3339204?n=507846&s=books&v=glance

Claims made in _this_ entry are well documented in public documents, all done in the name of protecting the US, when in FACT done to protect American INTERESTS. There's a HUGE difference between the two, and my own opinion is that the warrantless wiretapping is yet another nail in the coffin of the American Experiment.

Posted by: gonzo | January 9, 2006 10:56 AM

The more relevant question to be asking is this: Do we want to become a Soviet style Totalitarian country by allowing domestic spying on the people of the US; or, do we want to stand up and defend the Constitution against all enemies foreign and domestic?

Posted by: Julio | January 9, 2006 10:56 AM

WHAT SENATOR JOHN GLENN SAID :

There were 39 combat related killings in Iraq in January.
In the fair city of Detroit there were 35 murders in the
month of January. That's just one American city,
about as deadly as the entire war-torn country of Iraq.

When some claim that President Bush shouldn't
have started this war, state the following:

a. FDR led us into World War II.

b. Germany never attacked us; Japan did.
From 1941-1945, 450,000 lives were lost ...
an average of 112,500 per year.

c. Truman finished that war and started one in Korea.
North Korea never attacked us.
From 1950-1953, 55,000 lives were lost ..
an average of 18,334 per year.

d. John F. Kennedy started the Vietnam conflict in 1962.
Vietnam never attacked us.

e. Johnson turned Vietnam into a quagmire.
From 1965-1975, 58,000 lives were lost ..
an average of 5,800 per year.

f. Clinton went to war in Bosnia without UN or French consent.
Bosnia never attacked us.
He was offered Osama bin Laden's head on a platter three
times by Sudan and did nothing. Osama has attacked us on
multiple occasions.

g. In the years since terrorists attacked us, President Bush
has liberated two countries, crushed the Taliban, crippled
al-Qaida, put nuclear inspectors in Libya, Iran, and North
Korea without firing a shot, and captured a terrorist who
slaughtered 300,000 of his own people.

The Democrats are complaining
about how long the war is taking.
But ..
It took less time to take Iraq than it took Janet Reno
to take the Branch Davidian compound.
That was a 51-day operation.

We've been looking for evidence for chemical weapons
in Iraq for less time than it took Hillary Clinton to find
the Rose Law Firm billing records.

It took less time for the 3rd Infantry Division and the
Marines to destroy the Medina Republican Guard
than it took Ted Kennedy to call the police after his
Oldsmobile sank at Chappaquiddick

It took less time to take Iraq than it took
to count the votes in Florida!!!!

Our Commander-In-Chief is doing a GREAT JOB!
The Military morale is high!

The biased media hopes we are too ignorant
to realize the facts.

Posted by: The Antidote | January 9, 2006 01:27 PM

Alex Ham-How do I know that Chris Ford is white? Because in his posts he has put down every other culture and the only one he is silent on is white. So process of elimination Chris is white.All you have to do is go through the posts and Chris' racism shines through.
When someone calls those of other races names, that makes them racist. To accuse someone of racism when they are racist, stoops to nothing but honesty.

Posted by: SpeakoutforDemocracy | January 9, 2006 01:28 PM

I rarely speak out in these forums but I've been readin them for some time. And I must say, I find it absolutely riveting to watch Ford name call and attempt to yell at others when they do the same to him. People largely attack Ford based on his statements and ideas expressed thorugh debate. On the otherhand, Ford makes broad generalizations about anyone who dares to think differently from he, claiming knowledge of their leftist/marxist beliefs (simply cntrl F on this page for evidence). I would state some of the offensive names that he has called ErinnF if I had the time to search the back logs of debate from the last week or so. As I do not, I will not make a specific claim.
For the record Ford, responsibility to discuss and defend your argments lies solely on you. As discussed, you have the obligation to back up your claims. People have visited your sites and not been able to find what you claim to be there. Attacking their intelligence is a sad and childish move of someone that has no real argument to defend.

Posted by: Freedom | January 9, 2006 01:42 PM

Pleno Jure .. Could be I was just too terse in my comment to you, and no, I didnt miss that particular sentence. What I meant to do was to extend an invitation to take hold of the other jib sheet to set it for the direction of the new tack. As for the truth you speak of, I think it is pretty evident that a fair number have come to share your view.


SpeakoutforDemocracy I read about a case of a White Supremecist in Canada who was recently jailed for being outspoken about his racist opinions and rants.

Couldnt happen here, thank goodness. Our speech is protected from state interference by our Constitution; public indignation and condemnation is, of course, an entirely different matter, equally protected by our Constitution.


Alex and D. . I agree on all points.

James .. a very good summary of it.

Julio .. Im glad that end of discussion. wasnt. Your last post gets at my own basic concerns, although I would remove the or from your formulation and replace it with a question mark so two separate questions are posed.

Posted by: Cayambe | January 9, 2006 02:07 PM

SpeakoutforDemocracy -
I haven't seen anything racist written by Chris Ford on this blog at all. The worst he has done is refer to someone as a "Lefty." I agree with his view as "Lefty" being a term to describe a movement that will surely destroy our nation if left unchecked. Therefore, I am unable to see where calling someone "Lefty" is racist. I may have missed his "racist" post, but I think you are jumping to conclusions.

Posted by: Alex Ham - America's Hero | January 9, 2006 02:07 PM

Pleno Jure .. Could be I was just too terse in my comment to you, and no, I didnt miss that particular sentence. What I meant to do was to extend an invitation to take hold of the other jib sheet to set it for the direction of the new tack. As for the truth you speak of, I think it is pretty evident that a fair number have come to share your view.


SpeakoutforDemocracy I read about a case of a White Supremecist in Canada who was recently jailed for being outspoken about his racist opinions and rants.

Couldnt happen here, thank goodness. Our speech is protected from state interference by our Constitution; public indignation and condemnation is, of course, an entirely different matter, equally protected by our Constitution.


Alex and D. . I agree on all points.

James .. a very good summary of it.

Julio .. Im glad that end of discussion. wasnt. Your last post gets at my own basic concerns, although I would remove the or from your formulation and replace it with a question mark so two separate questions are posed.

Posted by: Cayambe | January 9, 2006 02:14 PM

I cannot find any reference to the 8 court cases at Powerlineblog.com or Volokh.com.

I'm trying, nudge me in the right direction.

Posted by: Will | January 9, 2006 03:31 PM

"Freedom" - If you make a Leftist argument, chances are people will view you as a Lefty, not a moderate or centrist. You look like a duck, quack like a duck, act like a duck - chances are you are a duck. This "labeling" tends to enrage Leftys, who these days hate being called Leftist or even liberal. They are engaged in reimaging, and want "old, obsolete labels like Trotskyite, Maoist, Teddy Kennedy believer, New Dealer" discarded in favor of "friend of mother Gaia", "Progressive", etc.

While in the same era, conservatives accept that they are conservatives, or at least lean that way on issues, even if they have quite moderate even liberal beliefs on certain subjects. But there is honesty on the Right, not the hiding or dissembling the Left tends towards these days. Once upon a time, Leftists and Communists proudly said they were such and openly said they were using Herbert Marcuse's tactics outlined in "Represssive Tolerance" or simply parroting Chomsky's case. You hear the same logic, but pointing it out usually provokes instant denial that Derrida, Chomsky, Trotsky, Marcuse had anothing to do with their intellectual framework. Sadly, in many cases that is true simply because many Lefties have never read the great Leftists philosophers, but got it through assimilation with other Lefties in conversation that speakers in opposition must not be given tolerance but shouted down since tolerance is repressive to the broader goals of society when it is a tool of majority power. So some idiot screaming "white supremacist, Halliburton tool, Muslim-killing racist" at Bill Bennet at a college rally may indeed be totally unaware they are simply aping 40-year old Marcusian tactics of "the politics of confrontation and silencing oppressive thoughts"......but they are.

It is like being in a timewarp back to 1968 to listen to Leftist arguments here that have never evolved. A frozen and decaying ideology and rhetoric. Just find an old Lefty speech - take out Vietnam, LBJ, evil Exxon, baby killing grunts - substitute in Iraq, Bush, evil Haliburton, torturing troops and you're basically all set. Sad for those that just parrot the Lefty rhetoric of that era, or just are relics of that time 2 generations ago who haven't learned better in the last 40 years - haven't even factored in the fall of Communism into their thought processes.

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

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. A sample of the stereotypical dialogue shows the tendency of the Left to attack personally whereas the conservative paints broad brush....

Conservative: I am concerned that the country is being weakened by Left-wing defeatists that fail to see the menace of Communism or radical Islam. That all cultures are not equal, our system is good for us. That the attack of the Left through institutions and activist judges on the pillars of our culture are harmful.

Lefty: By saying "weak" you challenge my patriotism. How dare you! You are a white supremacist whose racism speaks to your stupidity, Red State upbringing in thinking that somehow American culture and accomplishments are better than Islamic society! Write me an essay in your response, amply footnoted, on algebra saying how this does not show equality of cultures. I will judge you on this algebra essay and may or may not exercise my power of foregiveness after I get an apology for your ignorance. You are lucky that you are not still on campus, where such eggregious opinions justly would land you in hot water. How dare you personally oppose progress the wise judges and lawyers deem best! Obviously, by criticizing judges you demonstrate that you are a closet fascist.

========================
Speakoutfordemocracy - "How do I know that Chris Ford is white? Because in his posts he has put down every other culture and the only one he is silent on is white. So process of elimination Chris is white.All you have to do is go through the posts and Chris' racism shines through."

Gee, speakoutfordemocracy, that almost sounds bigoted. Characterizing posters as "black-sounding" or "white-sounding" as opposed to your posts, which you conceed come from a Leftist perspective.

Are you a "white-sounding" Lefty? Are you one of those Leftys that calls blacks oreos or Asians "bananas" for "acting too white"?

Hard to be a white supremacist if one is not totally white in background. I'll leave it for Speak-out to look closer at my words to discern what signifies Mexican thinking, Asian thinking, black thinking and in what percentage, so that he can better match my ancestral components and refine his racial slurs from just the "whitey" ones - so as to account for the other component...and hopefully properly ID that component...as black- based, Asian-based, mesticzo. I'll give Speak-out bonus points if his fine-tuned racial projections ID - if Asian, I think like a Filipino or Thai....If black, I am a part- Bantu or a Ibo, and if part Latin - what bloodline Speak-out thinks is operative, the Spanish side, or the Indian side, and if Aztec or Mayan makes any difference in how Speak-out evaluates me or the genetically derived thoughts of other posters.

Posted by: Chris Ford | January 9, 2006 03:57 PM


Posted by Pleno Jure.

James: You had an interesting question on Jan.6th here:""Will Bush secretly order torture (under whatever euphamism they settle on) in defiance of the bill? If he does and is caught, will he have a viable defense? Or does his acquiescence to the torture legislation signal an acceptance of serious boundaries to his power?""
I believe Matthew had a similar concern with regard to the McCain amenndment.

You can find a column by Jennifer Bergen
at http//writ.news.findlaw.com which will explain that the amendment was openly signed by president Bush with a statement allowing him to interpret the law. No need to do anything in secret and get caught.

Posted by: Pleno Jure | January 9, 2006 05:32 PM

Thanks for that all caps post, Chris Ford. : ) It was obviously very telling to all the other debaters around here. As usual, your all caps post dodged all of my allegations rather than face up to them, all the while accusing me of what YOU are guilty of.
This forum is an open debate. I am hardly butting into any discussion going on here; Free speech allows me to respond to whatever is read here. Besides, what I 'butted in on' proved my earlier point that you have a BIG PROBLEM GIVING OUT ACTUAL FACTS. You referenced not one but two blogs, and didn't get either of their web addresses correct when you gave out faulty web addresses to support your claims. That's part of the record here among the debates of these posts no matter how much you rant and rave to try to cover that up. You gave out faulty information; My pointing that out is not an ad hominem attack.
As for warnings, I have NEVER gotten any censure from Emily Messner. Rather, she has started off debate topics in the past by citing one of my posts, and even listed me first among debaters she wanted to write a Debate topic for her while she was on vacation. The only person besides you to give me a warning is a joker named Silicon Doc. Silicon Doc is the only poster I know to actually have Emily interrupt the Debate to tell him to 'knock it off'. Since then, Silicon Doc has re-posted Emily's post to him about 20 times, each time using a misrepresentation of Emily's post to baselessly blame somebody else of acting like he did. Now I see you are condoning his manipulation of Emily's critique on him, and trying to do the same. Typical of your below-the-belt tactics.
But, hey, thanks for the warning, complete with expletive. I got a great laugh out of seeing you bug out like that. Always a pleasure to see a crackpot crack. Chris Ford, if you can't take the heat, get out of the kitchen. Now you've been warned. : )

Posted by: ErrinF | January 9, 2006 07:05 PM

Let's just all chill out. Chris Ford, you like perjorative labels as little as the next person. You say Lefty wacko, they say White Supremist. As my brother says, "Hey kettle, this is the pot talking, and guess what? You're black!"

There are respectful ways to address a political viewpoint: liberal, conservative, libertarian, left-leaning, right-leaning, progressive, and socialist and communist when placed in the right context. Non-respectful terms include: Nazi, fascist, intolerant, or any term that exaggarates and creates a caricature of sincere and reasonable beliefs. Also, adding a "y" to a term is almost always dimunitive and only serves as an attempt to degrade: "righty", "lefty", etc. Also gratuituous linkage of a particular racial group or sexual orientation with an ideology is also disrepectful.

Do you have to do this? Am I throwing down the PC police? Am I directing this at any one individual? No, no, and no. I just think the wind of the dialectic takes the ship of the discourse (ok, chincy analogy) off course when it degrades to arguing over the terminology used in the discussion rather than the discussion itself. I.e. the Meno would have been decidedly less enlighetening if, after Socrates said, "So Meno, shall we enquire as to the greatest good?" Meno replied, "I don't know, should we, you hippie, homo pedophile?" Just a thought.

So, can we deal in a respectful vocabulary?

Now, to a couple substantitive things:

Antitode, just because Bush picked on a paper tiger as his advesary and people can cherry-pick statistics does not make him a good leader or that he is doing a great job. A fair evaluation needs to be much more comprehensive.

Cayambe, not to scare you, but that type of thing (getting punished for hate speech in a general sense) can happen here. I'll direct you to three recent Supreme Court cases: R.A.V., Wisconsin v. Mitchell, and Virginia v. Black. The upshot is a bit nuanced but I still think you'll be surprised by the outcomes.

james, I agree that there really isn't enough information out there on the wiretapping in order for anyone to really know at this point. However, as Beren has referenced in several points, if one branch of government makes its own determination whether or not a particular object is something that falls into its own jurisdiction, each branch has theoretically limitless jurisdiction. So it is at least good to get the constitutional issues out there and in play.

Posted by: Matthew | January 9, 2006 07:13 PM

For the record, this is how I started off this particular Debate topic:
"Yes, let's remove any and all of the half-histories that keep getting introduced into this Debate. Whether from ignorance or deliberate misrepresentation, we keep getting historical arguments being made about Lincoln, Truman, and FDR (to name a few) that only tell about half of the real story, and when you actually take the time to check them, aren't fully true.
Is that the kind of argument you have to depend on to defend this president? Amazing the amount of misinformation that gets spread around whenever Bush is in hot water. And it's spread deliberately too. What a house of cards this presidency is in it's constant reliance on sophistry and lies."
Posted by: ErrinF | Jan 5, 2006 3:43:39 PM

Chris Ford then immediately attacked my post, and continued putting out half-histories. I took him to task for that, took him to task for giving out faulty web addresses, then he exploded in an all caps post against me. Not once has he actually responded to the points I've made about his posts' faults. If I'm so very out of line, he should be able to argue me point for point. Instead we get his usual demagoguery and dodginess.

Posted by: ErrinF | January 9, 2006 07:22 PM

Almost forgot: The Antidote's many points are an excellent example of the weak half-histories that have to be used to protect this president's wrong actions. Kudos to Emily in her first domestic surveillance Debate post giving us a link to a Media Matters page that warned us from the beginning that historical innacuracies would be put forth to try to obfuscate the President's unprecedented and questionably legal warrantless surveillance of American citizens.
Were those facts put forth by The Antidote or just the usual cheerleading we get from these Bush apologists? All it needed was a pair of pom-poms. Give me a B! Give me a U! Give me an S! Give me an H!
Give me a break.

Posted by: ErrinF | January 9, 2006 07:33 PM

Boy, this thread sure went to hell while I was away.

In response to an earlier question, the FISA act was signed into law by Carter on October 25, 1978.

After a few head clearing days away its become apparent to me that those of us who read Orwell's 1984 and the history of how a democracy became a fascist dictatorship in a few easy steps in the last century have failed to present a clear, concise, cohesive message:

To paraphrase from the 92 election, "ITS THE [LACK OF] OVERSIGHT, STUPID."

We really need to be more effective with this message. My weekend spent in the "real world" made it clear that all people are getting right now is that the "left" want to tie the President's hands when all the man is doing is trying to make us safe, and if we let "them' stop the spying it will surely bring on another attack. If that is denigrating Americans ability to think critically then so be it, but I also think it reflects a lack of a unified voice of reason in the center and left and in the media.

Alex Ham, here's the fallacy in your reasoning that its OK to give up this tiny civil right to prevent another attack. This administration excels in casting arguements into either/or, e.g. "either you're with us or against us". This works until people get wise to it.

The newest either/or arguement is a false choice between security and civil liberties, or as framed by the right, either al Qaeda blowing you up vs spying on evil Americans in league with al Qaeda. Sounds great if you say it fast.

What people have forgotten is that this president has failed to secure our ports, our borders, our cargo, our chemical plants, our nuclear plants, our epidemic preparedness, etc. Did you read the failing 9-11 report card? Its frightening. Further, the NSA missed 9-11 not because they weren't spying on Americans, but in part because they had too much of a backlog to go through and interpret their legally obtained surveillence. Has the President fixed this problem? How well has Homeland Security performed? It was fun to blame Katrina on the mayor and the governor, but wouldn't you have expected Homeland Security to have planned and simulated how to respond to a dirty bomb or similar attack and have a disaster plan on file for our major cities four years after 9-11? How exactly are we safer than before 9-11 besides the fact that you have to take your shoes off and be patted down in airports?

In truth giving up your civil liberties to purchase a little temporary security is a false choice. Because this president has done such a piss poor job of security the country that another attack is going to happen whether your give up your civil right to unreasonable search or not.

Posted by: patriot 1957 | January 10, 2006 02:01 AM

sorry, make that last paragraph:
In truth giving up your civil liberties to purchase a little temporary security is a false choice. Because this president has done such a piss poor job of securing the country that another attack is going to happen whether your give up your civil right to unreasonable search or not.

Posted by: patriot 1957 | January 10, 2006 02:05 AM

patriot 1957 -
Where are all these attacks? It's been over 4 years and and still no further terrorist action on our soil. I'd say "this President" has done a fine job of maintaining our security.
Chances are Osama is dead. Other members of his organization now make the threatening videos, and Osama hasn't been seen in over a year. Looks to me like Al Qaeda is on the decline. You and I both know who we owe that credit to. You're just so caught up in politics you refuse to admit when a Republican President is successful.
Speak for yourself about giving up civil liberties. I haven't given up any. My phone calls aren't monitored because I don't talk to suspected terrorists.

Posted by: Alex Ham - America's Hero | January 10, 2006 07:47 AM

Alex Ham,

Let's break down your arguments, such as they are.

(a) "Where are all these attacks? It's been over 4 years and still no further terrorist action on our soil."
Rebuttals:
(1) In Iraq. There have been to date 2,410 deaths of Coalition forces and 15,955 wounded. http://icasualties.org/oif/ There have also been approx. 30,000 or more civilian deaths. http://www.iraqbodycount.org/ http://www.whitehouse.gov/news/releases/2005/12/20051212-4.html
Or do these deaths not count? Do you not care about serviceman and Iraqi civilians?
(2) As discussed a few days ago, you can't simply start the clock of Bush's safety record on 9/12/01. Either you include the worst terrorist attack on America in his evaluation or you argue that these things are planned years in advance in which case who knows when he should start getting credit. In any case, the administration's performance after Katrina did little to reccomend an organized and streamlined system of national aid.

(b) "Chances are Osama is dead. ... Looks to me like Al Qaeda is on the decline."
Rebuttals:
(1) Pursuing Osama would have been the response of any President in office. And the response in Afghanistan was popular and supported broadly by the international community.
(2) If what you say is true, then the Authorization of Force should necessarily expire on its own terms.

(c)"Speak for yourself about giving up civil liberties. I haven't given up any. My phone calls aren't monitored because I don't talk to suspected terrorists."
Rebuttals:
(1) Apparently the entire intelligence effort is a needless expense as you can identify for the U.S. authorities precisely who is and should be a suspected terrorist without any intrusive surveilance. Noone can fly under your radar. Good to know. Please inform your superiors.
(2) There's always the question and possibility of mistaken identity which could link someone to you (see, e.g., Brandon Mayfield and Khaled Masri... and these are simply the really extreme cases, not simple wiretaps which never came to light).
(3) I guess that also means you didn't spend last New Years in Las Vegas as everyone who did lost a degree of privacy. http://www.democracynow.org/article.pl?sid=04/01/06/1557210
(4) How do we know that you're not talking to suspected terrorists unless we listen in?

Posted by: Matthew | January 10, 2006 10:15 AM

Addendum: one study put Iraqi civilian deaths in the range of 100,000, although with some caveats.
http://news.bbc.co.uk/1/hi/world/middle_east/3962969.stm
http://iraqmortality.org/dead-iraqis-why-an-estimate-was-ignored

Posted by: Matthew | January 10, 2006 10:37 AM

Matthew -
Maybe you missed this part of my statement:
"...still no further terrorist action on OUR soil."
Unwarranted surveillance is only carried out on suspected terrorists. These people become suspected terrorists through pefectly legal investigations. I'll take my chances with being mistaken for one.
Sorry didn't spend New Year's in Vegas. I've never been and don't plan on ever going. Quit worrying about your civil liberties and worry about whether or not your "infidel" ass is safe.

Posted by: Alex Ham - America's Hero | January 10, 2006 11:02 AM

Ford-
You claim to use labels that fit while resorting to stereotypes for one side and ignoring the stereotypes of your own. Lets look at this from another persepective shall we?

On possible Lefty argument: Now, in all honesty, I think it is a travesty that the president of the United States feels that he has no accountability to his own country. He feels he is above questions of ethics and obeying constitutional law, in the pursuit of an ideal that has very little chance of succeeding with his current course of action as the enemy has been set up as a permanent Straw Man. Completition of this goal will never be achieved if only because the Straw Man will always be replaced. To pursue his own ends, he is willing to make a mockery of everything this country stands for and put us at the same level as the faceless enemy he brings out for every argument he has.

One possible conservative argument:
You don't like it? Tough. This is my America and if you don't like it, leave! Or better yet, we can enact defense plans to only save republican areas, and any liberal areas can protect themselves with their good faith in humanity (sound familiar ford?) And then we'll see who was right! If you're not an American, you do not have the entitlement to the same rights as us, meaning torture is a-ok (Whatever happened to all men are created equally?). And in regards to wiretapping, if you don't have anything to hide, then it shouldn't matter. You're not a terrorist yourself, are you?

/end example
Even I don't attribute these 'conservative' beliefs to anyone here (I hope no one has them, anyway). But stereotyping can go both ways Ford. Point is, you label anyone who disagrees with you as marxist or lefty regardless of their views. You support Bush, it would seem. May I call you a Fundie? I didn't get into Bush's imaginary friend in the sky, but he seems to be used by a lot of supporters of the current adminstration as justification for horrible acts against man. So can I assume you follow the same beliefs because I see Pat Robertson out there spouting inane garbage? It's the same logic, isn't it?

Posted by: Freedom | January 10, 2006 11:05 AM

Ford-
You claim to use labels that fit while resorting to stereotypes for one side and ignoring the stereotypes of your own. Lets look at this from another persepective shall we?

On possible Lefty argument: Now, in all honesty, I think it is a travesty that the president of the United States feels that he has no accountability to his own country. He feels he is above questions of ethics and obeying constitutional law, in the pursuit of an ideal that has very little chance of succeeding with his current course of action as the enemy has been set up as a permanent Straw Man. Completition of this goal will never be achieved if only because the Straw Man will always be replaced. To pursue his own ends, he is willing to make a mockery of everything this country stands for and put us at the same level as the faceless enemy he brings out for every argument he has.

One possible conservative argument:
You don't like it? Tough. This is my America and if you don't like it, leave! Or better yet, we can enact defense plans to only save republican areas, and any liberal areas can protect themselves with their good faith in humanity (sound familiar ford?) And then we'll see who was right! If you're not an American, you do not have the entitlement to the same rights as us, meaning torture is a-ok (Whatever happened to all men are created equally?). And in regards to wiretapping, if you don't have anything to hide, then it shouldn't matter. You're not a terrorist yourself, are you?

/end example
Even I don't attribute these 'conservative' beliefs to anyone here (I hope no one has them, anyway). But stereotyping can go both ways Ford. Point is, you label anyone who disagrees with you as marxist or lefty regardless of their views. You support Bush, it would seem. May I call you a Fundie? I didn't get into Bush's imaginary friend in the sky, but he seems to be used by a lot of supporters of the current adminstration as justification for horrible acts against man. So can I assume you follow the same beliefs because I see Pat Robertson out there spouting inane garbage? It's the same logic, isn't it?

Posted by: Freedom | January 10, 2006 11:06 AM

Alex Ham,

No, I caught that part of the statement. I just don't think it's particularly relavent. Are you saying that the deaths and injuries suffered by American, British, Iraqi, and others are OK and don't count as long as they don't happen on America's shores? Please clarify or confirm.

"Quit worrying about your civil liberties and worry about whether or not your "infidel" ass is safe."
That is what your viewpoint boils down to, isn't it.

"Unwarranted surveillance is only carried out on suspected terrorists. These people become suspected terrorists through pefectly legal investigations."

This seems to be assuming the conclusion and then feeding the assumption back in to a line of reasoning to arrive at a conclusion.
* I am going to assume the world is square.
* I wonder what shape the world is.
* The shape of the world is square.
* Therefore, the world is square.

The whole question on surveilance is whether or not it is legal and constitutional. You can't simply assume away that everything is being done copacetic without any knowledge of what is actually being done.

"Sorry didn't spend New Year's in Vegas. I've never been and don't plan on ever going."
Well, Las Vegas was only the story that made the papers. I'm sure there were others and you must exist somewhere.

Posted by: Matthew | January 10, 2006 11:30 AM

Alex Ham-

"Unwarranted surveillance is only carried out on suspected terrorists. These people become suspected terrorists through pefectly legal investigations. I'll take my chances with being mistaken for one."

That seems to be the crux of the matter on our side. Would you be upset if you found out that Bush spied on one of his ex-girlfriends to find out who she was dating? What if he spied on your parents because you were competing with one of his kids for a Graduate School spot? Would it bother you if he was spying on John McCain because he wanted George Allen to win in 2008?

As Matthew said, you do not just get to "assume" away the argument. You assume that the President is not spying on legitimate people in spite of the fact that those responsible for ENSURING that the President not do so have expressed confusion and inadequacy (Rockefeller) or have said straight up that they were never briefed on the plan *at all* (former SIC chairman Graham).

These seem to be the kinds of eggregious oversight failures that raise obvious questions for the rest of us. IF the President is spying only on Al Quada suspects then we have no disagreement. I doubt anyone here is really truly interested in the rights of members of Terrorist organizations, despite some of comically simplistic characterizations enjoyable here.

There is historic precedent. A President of the United States did spy on American Citizens who were guilty of nothing other then being members of the other political team. For you to entreat us to believe that this President is incapable of such a malfeance demands you show us *why* he is incapable of it without circulating the assumption in your conclusion or appealing to some personal trait of this particular president. It isn't enough that "Bush is a good man" or that "only Al Quada is spied on because only people connected with terrorists are spied on". There must be mechanisms in place that are effective.

Prior to the New York Times article these mechanisms were not in place; were not even being discussed. The SIC has admitted to being incapable of excercising oversight. The head of the FISC court immediately flexed her muscles after the story and will now brief *all* members of the court rather then merely her own conscience.

If your problem is with terrorists, we have no disagreement. If you think the President deserves the "Trust me!" you seem to imply: no way.

Posted by: Will | January 10, 2006 12:04 PM

Matthew and Will -
Ofcourse the deaths of Soldiers in Iraq matters. That has nothing to do with the surveillance question. We'd be over there fighting this war whether or not we were monitoring INTERNATIONAL calls between SUSPECTED TERRORISTS.
I understand your concern over what the President is capable of doing with this power. But just like he hasn't shown he can be trusted not to abuse it, he hasn't shown where he will abuse it. Personally, I think the President has the best interest of American citizens on his mind. Why would you think otherwise? If he were abusing this power then I would want it revoked. Until that happens, I see no reason for anyone to be concerned except for terrorists and their sympathizers.
Everyone in Washington who disagrees with the President exercising this perfectly legal power has ulterior motives for expressing their concern. I don't think I need to say what they are. I'm sure you catch my drift.

Posted by: Alex Ham - America's Hero | January 10, 2006 12:52 PM

Alex Ham-

You state: "But just like he hasn't shown he can be trusted not to abuse it, he hasn't shown where he will abuse it. Personally, I think the President has the best interest of American citizens on his mind. Why would you think otherwise? If he were abusing this power then I would want it revoked. Until that happens, I see no reason for anyone to be concerned except for terrorists and their sympathizers."

Let me seem to cap up why you are unconcerned with unchecked Presidential surveillance:

1) The President has not indicated or shown where he will abuse his power in the future.
2) On a personal level, you think the President has the best interests of the American citizens on his mind. Reasoning: Why would you think otherwise?
3) If the President abuses the power he should have it revoked, but until that happens, there is no need for oversight.

Let's go 1-3.

1) Ignoring the fact that this would be, presumably, exactly how someone who WAS abusing the power would behave, we need not solely think of the problem as "President Bush". Because, for President Bush to assert this as executive privaledge sets a dangerous precedent in 2008, 2012, 2016, so on and so forth. While you can try to speak for Bush today, you certainly cannot speak for any future President.

2) Right up to the moment when Richard Nixon resigned from office, over 10% of the nation still had high approval ratings for him. In spite of mounds of evidence to the contrary, these people felt Richard Nixon had their best interests at heart.

You are an admitted Conservative. It makes sense that you would think the President has your best interests at heart.

Again, your appeal seems to be the "trust me" and "why not" approach, neither of which has constitutional precedent.

And, as with 1), your point is irrelevant. Even if I had a device that could monitor President Bush's brainwaves and knew with 100% certainty that President Bush had my personal best interests at heart, this would not make oversight-free surveillance ok. First, because President Bush's position on an issue could change, and second, because the precedent could later be used by a President who did not have my best interests at heart.

3) assuming there is no oversight for Executive action, there is no way for people to find out whether or not the President has abused his authority in the first place. The only reason we know what we know is because some New York Times reporters tardily pointed it out. They might be arrested.

The New York Times is not an oversight entity. It is not a branch of government. When the constitution was written, there was no New York Times.

If, as you have argued, the New York Times deserves to go to jail, then how would we know that the surveillance was happening *at all* let alone whether or not it was occurring with any reasonable oversight?

Even if it is the case that the President had spied on your parents, his ex-girlfriend, or John McCain, how could you possibly know? What is in place today that would have picked up on it? If the SIC is the oversight mechanism, how do you explain that its chairman Graham was never briefed on warrantless wiretaps? Doesn't the recent behavior of the FISC head justice trouble you? Doesn't it seem strange that now she thinks her role was too limited?

In other threads, Chris Ford and SiliconDoc have argued, with me, that the former methods in place were adequate. I doubt even they (maybe Silicon) would ever try and argue the "Trust the President because you have no reason not to" approach. Do you really expect us to just trust the President?

We have evidence, from his mouth, that he is willing to lie publicly about wiretaps. April 20th, 2004, and I quote: "Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so." Does this sound honest?

I am sorry. Even if THIS president is trustworthy, which is not assumed in this discussion, the next one may not be. This is not the kind of executive precedent we need to set.

"Everyone in Washington who disagrees with the President exercising this perfectly legal power has ulterior motives for expressing their concern. I don't think I need to say what they are. I'm sure you catch my drift."

Certainly partisanship is not good. But I do not live in Washington, so by your own admission I do not have ulterior motives and therefore you get to address my concerns as such without referring to my political motives, of which you have absolutely no idea.

Posted by: Will | January 10, 2006 01:18 PM

What about an Oversight Committee? A group of knowledgeable, trustworthy individuals with high-level security clearances that would review all the cases for validation. To make sure the government was not abusing this power, but still allow the wiretappings without a warrant. As long as the process was speedy and efficient, I'd be all for it.
My biggest concern is that someone leaked this informnation about what the government was doing. We'd have to be sure this wasn't going to happen again.
Back during the Cold War, Russia would send spies over to befriend government employees and exploit their downfalls to get secret information. This same thing happens today only now it's not Russia, it's our own media.

Posted by: Alex Ham - America's Hero | January 10, 2006 01:41 PM

Your Oversight Committee is what is known as the FISA court which the Bush administration decided to ignore.

Posted by: Matthew | January 10, 2006 01:46 PM

Mr Hamilton:
All Americans or just the ones that vote for the President's party?
Case on Point: Katrina.
A Democratic state governor and city mayor and 25,000 families about to be kicked out of FEMA housing because FEMA does not even know who got aid and who did not.
Just curious as it seems I did caught your drift.
Sorry about shooting you in the nuts. That was long ago so I hope you can "trust me".

Posted by: Arron Burr | January 10, 2006 01:47 PM

Will -
I did not realize I had referred at all to your political motives. Sorry if you interpreted it in that manner, but I did not mean it as such.
You make a valid argument with what future Presidents may do. However, if there was ever a time for this sort of action it is now. If a President ever attempted to exercise this power without proper justification it shouldn't be allowed.

Posted by: Alex Ham - America's Hero | January 10, 2006 01:47 PM

Alex Ham-

Matthew expresses my sentiments.

I agree that there should be oversight. You seem to agree that there should be oversight. Yet you have not expressed any apprehension about the fact that, though oversight existed it was purposefully bypassed by the President.

Now, the *convincing* (to me at least) claim has been made elsewhere and here by Chris Ford, yourself, and others, that the FISA statutes were too restrictive. I am willing to bite on this line of reasoning.

The President recognized that FISA was too restrictive for what seem to be vital national security operations. The President did not make this compelling case to any legal body. This is a problem.

You seem open to oversight. If I suggested that a neutral judicial body be given regular briefings over both the method and the employment of warrantless wiretaps regularly, as well as specific briefings on individual warrantless wiretaps, that offered a reasonable retroactive oversight mechanism, would you be fine with it?

Posted by: Will | January 10, 2006 01:55 PM

Touche' Aaron Burr, touche'.

Posted by: Alex Ham - America's Hero | January 10, 2006 01:57 PM

Will -
Not a judicial body because neutrality could not be guaranteed. I was thinking more along the lines of government civillians. No interpretation of law would be necessary, only the guarantee that individuals under surveillance were not so unfairly.

Posted by: Alex Ham - America's Hero | January 10, 2006 02:00 PM

Alex Ham-

One of the strengths of the judicial body, and one of the weaknesses of the remaining two branches of government, is that it is technically speaking politically neutral in that none of the "representatives" are elected.

The idea that government civilians, IE: employees of beaurocracies are more politically neutral than the Judiciary seems to lack any real evidence. The DoJ or the NSA would not be adequate oversight because both are members of the executive branch. It has been argued by SiliconDoc (and perhaps Chris Ford) that the DoJ has also, in the past, been complicit in crimes with the President (Barrett Report). That seems adequate historic precedent that the DoJ has been complicit in executive crimes.

Perhaps you need to specify what kind of government civilians you are discussing? Interpretations of the law, which also has its own oversight method (requires congress to vote, is subject to an executive veto, can be deemed unconstitutional by the Supreme Court, etc.), seems like the most neutral way of approaching the issue.

Maybe I've missed something, but why again would courts be less neutral then any given government civilian?

Posted by: Will | January 10, 2006 02:28 PM

Alex Ham said: "Unwarranted surveillance is only carried out on suspected terrorists."
"INTERNATIONAL calls between SUSPECTED TERRORISTS."

But Alex, the whole point is that you can't possibly KNOW this is true. Merely wanting it to be true or even believing in your heart it must be true is so incredulously naive that I would question the motivation of those who would put forward this view. Those who fail to heed the lessons of history are doomed to repeat it, and the history of what happens to nations who give their leaders unchecked power in times of "terror" is not on your side.

"But just like he hasn't shown he can be trusted not to abuse it, he hasn't shown where he will abuse it."

Hmm, where have I heard that before? Oh, I remember, that's what the naive Center party and Social Democrat idiots in the Reichstag said when they gave Hitler the 2/3 majority he needed to be declared dictator becasue he promised them: "The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures...The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one." For them it was too late to lock the barn door after the horse had escaped, wasn't it?

In the absence of oversight the President has a blank check to spy on whomever he pleases and to declare any reason he pleases to be about "national security" or any person he pleases to be a "suspected terrorist".

Why is this concerning? Because this administration has already tipped their hands, labelling those who broke the abu Ghraib and spy and similar stories as "traitors". Dissenters are labelled "unpatriotic". And the President's apologists have already delcared how this administration will handle dissent - Chris Ford has declared us all to be "America Haters". So who's to care if the "America haters' and "traitors" are spied on or jailed without charges or legal recourse? Giving the President sole, unchecked authority to determine who and what constitute a "threat" to national security, or a "traitor" or "unpatriotic" is a recipe for tyrrany.


"Personally, I think the President has the best interest of American citizens on his mind. Why would you think otherwise?"

I guess because I have a brain and I can read.

"If he were abusing this power then I would want it revoked."

And if all who challenge this power are labelled "traitors" and "investigated", who will be left to revoke it?

"Everyone in Washington who disagrees with the President exercising this perfectly legal power has ulterior motives for expressing their concern. I don't think I need to say what they are. I'm sure you catch my drift.


No, I don't catch your drift. Please be more explicit.

Posted by: patriot 1957 | January 10, 2006 02:47 PM

It's just in my opinion that judicial entities aren't always as neutral as they're suppose to be. Not just on a national level, but locally as well. If it were up to me, I would create a new directorate within the government sector to oversee these matters. These individuals could be appointed by the Executive Branch with approval from the Judicial. I think that would be a fair way of determining who these individuals would be.
The reason I see no need for interpretation is that with the establishment of this directorate, you'd already be showing that this power is lawful.
My concern over our present situation blocked my observance of what execution of this power now could mean for future presidencies. Call me what you may, but I trust our elected officials despite the few rotten apples.

Posted by: Alex Ham - America's Hero | January 10, 2006 02:52 PM

patriot 1957 -
This marks my last reply to anything you write for here on out. I will not be accused of "not having a brain" by some moron.
Who the hell are you anyway, George Orwell?
Where does all this conspiracy theory and comparison to Adolf Hitler come in to play?
This is no where near the magnitude of any of the historical matters you mention before. Not catching my drift also shows you don't grasp the overall goal of the Bush opposition.
When did the government betray you "patriot?" It's never betrayed me so until it does, I will trust my proven leaders and feel confident with their protection.

Posted by: Alex Ham - America's Hero | January 10, 2006 02:59 PM

Alex Ham-

If we take your assessment seriously, that the judiciary is not quite as neutral as you say, and you are suggesting Executive appointments with judicial oversight of those appointments (judicial approval?), then aren't you essentially saying executive oversight?

If we took seriously oversight, wouldn't it make more sense not to include the branch that we are trying to oversee? IE: Perhaps judicial appointments with legislative approval?

If the President decides he wants to spy on his ex-girlfriend, and he nominates his, say, nephew to this oversight entity, wouldn't the nephew have a vested interest in not pursuing oversight? Wouldn't the nephew feel obligated to the President, who gave him this job, not to keep the President's hands out of the cookie jar?

Have you ever wondered why Supreme Courts don't appoint their own justices? Or why legislatures don't nominate them and also vote on them? Or why Presidents only get to nominate them while the Senate has to approve of them?

Branches are checked by others, not by themselves.

Posted by: Will | January 10, 2006 03:05 PM

You've let your dislike of the judiciary cloud your judgment. Not only is the judiciary the only branch or entity most capable of handling this, but probably the only Constitutionally-permissible. You cannot set up a Committee or Tribunal or Group of Really Good Guys to determine whether or not someone else's Constitutional rights were breached.

Just as the Judiciary can't call up the Generals and tell them, "Get out of there," neither can one branch of the Executive call up another branch and say, "Hey, you're OK." It all fits within the scheme.

Posted by: Matthew | January 10, 2006 03:09 PM

Put another way, do you know what you call someone who people on the judiciary may like issuing warrants for the searches of other people's homes? Someone who is not a judge who is not issuing valid warrants.

There's no such thing as a "judicial deputy."

Posted by: Matthew | January 10, 2006 03:13 PM

Either way would work as long as partisan politics wasn't the driving force behind appointments. My point is just simply that some sort of entity outside of those currently involved would be the best option for oversight.
A good hypothetical example, but hopefully the Judiciary wouldn't approve the President's nephew for such a position unless he met the proper qualifications. Better yet, hopefully the President wouldn't appoint his nephew.
I majored in political science so I understand checks and balances. I would just prefer to keep the Legislature out of such matters due to all the incompetent bickering taking place today.

Posted by: Alex Ham - America's Hero | January 10, 2006 03:13 PM

"These individuals could be appointed by the Executive Branch with approval from the Judicial. I think that would be a fair way of determining who these individuals would be."

I don't think we need to re-invent the process of checks and balances set forth in the Constitution. Congress set up a FISA court to do this overseeing, a President signed off on it, and presumably the Supreme Court will rule on its constitutionality if a prosecution using FISA is brought before it. And this President decided on his own it didn't apply to him, and were it not for a few courageous whistleblowers who may now go to jail we'd never even know the extent to which the FISA law had been flouted, would we?

Yes, as we can so plainly see today the appointment of the Judiciary is rife with politics, but at least the politics are spread out over 20 or more years and thus different presidents/parties.

You also have to take this PResident's history into accout when deciding whether or not to trust him to set up the board that will oversee him. Let's look at this President's history of "fair'. When he took office he trashed the existing federal scientific advisory boards, dismissing renowned scientists in favor of actions like stacking environmental protection boards with oil company cronies, or for example replacing a renowned scientist off the lead poisoning advisory panel in favor of a charlatan who is a professional witness that lead levels of 60 don't harm children.

The President's history shows us that this panel would be anything but "fair'. But if you really trust the President to do this "fairly" I'd like to sell you some oceanfront property in Arizona that I'm just too busy to take care of.....


"However, if there was ever a time for this sort of action it is now."

Why now? You told us that since there hasn't been another attack it means that we no longer need to live in fear because we've been so well protected. Can you have it both ways - the president has made us safe but we have to give up our civil rights because another attack is coming and we're not safe?

"If a President ever attempted to exercise this power without proper justification it shouldn't be allowed."

If everyone who tries to not allow it is labelled a traitor and can be jailed without charges or legal recourse because they must be agents of the enemy, "America haters". unpatriotic, or secretly in league with al Qaeda, who will be left to stop the abuse of power?

Posted by: patriot 1957 | January 10, 2006 03:17 PM

patriot 1957 -
Jesus man how far on the left are you? Are you really, really far over there? You catching my drift? When did opposing the President make you a terrorist? You taking this a little to far maybe? Need to take your meds and calm down a little maybe, huh? How much for the oceanfront property in Arizona? I need a place to runaway to with your mother you cowardly prick?

Sorry, won't happen again.

Posted by: Alex Ham - America's Hero | January 10, 2006 03:24 PM

Alex Ham-

"Either way would work as long as partisan politics wasn't the driving force behind appointments. My point is just simply that some sort of entity outside of those currently involved would be the best option for oversight."

Well currently, the only real group excercising "oversight" (because they are the only informed branch) is the Executive. So you are suggesting we need someone besides the Executive to monitor this, which I agree with.

"A good hypothetical example, but hopefully the Judiciary wouldn't approve the President's nephew for such a position unless he met the proper qualifications. Better yet, hopefully the President wouldn't appoint his nephew."

Checks and balances do not hinge on hopes and trust, they are explicitly listed in the Constitution. The framers did not "hope" the President wouldn't nominate his nephew. They put in place mechanisms, such as Congressional approval, to make sure his appointments were competent.

"I would just prefer to keep the Legislature out of such matters due to all the incompetent bickering taking place today."

Judicial oversight has what to do with the Legislature?

Posted by: Will | January 10, 2006 03:32 PM

Mr. Ham-
"Quit worrying about your civil liberties and worry about whether or not your "infidel" ass is safe."

Sir,
If my civil liberties aren't safe, then neither is my red-blooded, all-American ass.

"Is life so dear or peace so sweet...?"
You know the rest.

Posted by: Average American | January 10, 2006 03:38 PM

You mentioned Judical appointments with Legislative approval.

Posted by: Alex Ham - America's Hero | January 10, 2006 03:47 PM

Average American -
Just trying to make a point there guy. Point being your civil liberties are safe.

Posted by: Alex Ham - America's Hero | January 10, 2006 03:48 PM

Alex Ham-

I meant Presidential Judicial appointments with Legislative approval, IE: how we currently decide the makeup of the Supreme Court. I don't know of many cases, besides perhaps FISA, where the Judiciary branch appoints itself. Even FISA, which is made up of members appointed by the SCOTUS, has oversight because the Chief Justice of SCOTUS is nominated by the Executive and approved by the Legislature.

Question: Do you have a problem with the legislature approving judges? Aren't you a Republican?

Posted by: Will | January 10, 2006 03:55 PM

Sorry for offending your sensibilities, I didn't mean you, personally,were brainless. As for you, personally, I merely think you are excessively, and yes dangerously, too trusting.

Here is a link from the American Conservative that says it better than my fumbling attampts. http://www.amconmag.com/2005_02_14/article.html

Your commentary on this piece, written by a bona fide conservative, is welcome.

And while Hitler is the most obvious and best documented example of how a democracy becomes a dictatorship, the history of Burma, and Peru, ancient Rome, etc have important lessons for those of us who would considering "trusting" the chief executive with unchecked power.

Posted by: patriot 1957 | January 10, 2006 04:00 PM

Stolen from the Supreme Court Blog:

Alito agreed with US vs. US District Court in 1972 that held, among other things:

"The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security suveillances are conducted solely within the discretion of the Executive Branch, without the detached judgment of a neutral magistrate."

Posted by: Will | January 10, 2006 04:11 PM

Of course, whether Alito would believe that the 4th would be operable during "war time" would be another matter.

Posted by: Matthew | January 10, 2006 04:18 PM

"Jesus man how far on the left are you?"

Let's see. I teach Sunday school, unfailingly vote a split ticket, think that abortion should be legal but rarely needed except for exceptional circumstances in a society that values women and children, and think Ayn Rand was one of the greatest writers ever but that pure libertarians are naive utopians. And I first really understood where the courage of Patrick Henry came from when he said "give me liberty or give me death", or the lone dissident facing the tank in Tianneman square came from when this administration tried to impugn the patriotism of those who oppose the 5% of the Patriot Act that restricts civil liberties without an appropriate increase in security, and when they started investigtions aimed toward retribution against "traitors" who "leaked" stories about abuse of power, and determined that the President alone could decide if an American citizen was an "enemy combatant" and could freely strip them of civil liberties of requiring charges and legal recourse on his whim alone.

How far out on the left does that put me?

Posted by: patriot 1957 | January 10, 2006 04:19 PM

Mr. Ham,

"The price of freedom is eternal vigilance".

"Trust, but verify."

The point is, no one, no entity, is capable of overseeing themselves. Lawyers can't do it, doctors can't do it, I can't do it, you can't do. Just can't be done.

Posted by: Average American | January 10, 2006 04:21 PM

Judges being approved by the Legislature is fine, but approval of an Oversight Committee by the Legislature would get us nowhere in this situation due to the preconceived notions that have already been established within Congress over this matter. For the record, I'm not Republican. I'm conservative and the Republican Party just happens to best represent my ideals right now.
patriot 1957 - We're not Burm, Peru, or Rome. We will not fall like these others because our government is unique, the first of its kind. If our "great empire" falls it will be due to the increase of decadence and the rescinting of moral fiber.

Posted by: Alex Ham - America's Hero | January 10, 2006 04:22 PM

patriot 1957 -
Wow, that was some sentence. Not very far on the left then I guess.
Average American -
Point taken.
All others -
I bid you good day.

Posted by: Alex Ham - America's Hero | January 10, 2006 04:24 PM

Alex Ham-
That's just it Alex. You argue that America will never fall because we are 'unique.' Part of our uniqueness is that we, as a country, allow and encourage dissent (at least we used to) and established a system with checks and ballances to insure that no one person ever had enough power to take away the basic freedoms that the founding fathers believed us to have.

What you see as a rational and justified train of thought to allow the president certain powers during this time of 'war,' is seen as unjustifiable to the opponents of Bush's unchecked powers. We see this as one of many small steps in the direction away from democratic processes.
When an individual can choose to disobey a law because he 'has our best interest at heart' or has deemed the reason to be to 'protect us,'without any verification to the validity of that claim, democracy has been taken out of the loop.

Posted by: Freedom | January 10, 2006 05:30 PM

I'm sorry that you had to leave before having time to comment on this from the American Conservative
http://www.amconmag.com/2005_02_14/article.html

Posted by: patriot 1957 | January 10, 2006 05:32 PM

I would just prefer to keep the Legislature out of such matters due to all the incompetent bickering taking place today.
Posted by: Alex Ham - America's Hero | Jan 10, 2006 3:13:43 PM

I do not understand this statement from you, Alex. Why are you so willing to give the President the benefit of the doubt, but not the Legislature? For the most part, I respect your stance that the President deserves a certain amount of support and faith from the public simply by way of having faith in one's country, but then it seems contradictory that your patriotism is full blown for the President, but withheld from the Legislature. You know our system benefits from the three branches balancing each other out, so why try to remove one of them from the equation? Congress deserves the same amount of patriotic loyalty you give the President, Alex. As an American, you should want them involved rather than uninvolved. I don't see how you could disagree with that, especially with the importance you place on patriotism and faith in government.
Overall, I still feel that your position is too trusting of those in power. This is a government of the people, for the people, and by the people, so it is fully patriotic for any U.S. citizen to be critical of the government. The President serves the people, Alex, not the other way around. While it's true that this is a great country, our politicians are only human, and POWER effects humans in strange ways. Therefore, I still feel it is better to limit those in power (i.e. no warrantless surveillance) rather than to blindly follow them. There's a difference between being a patriot and being a sucker, Alex. I fully agree with you that too much cynicism towards the government is wrong and unpatriotic, but I still feel there is plenty of room for healthy cynicism towards those in positions of power.

Posted by: ErrinF | January 10, 2006 05:35 PM

I don't buy the argument that this warrantless surveillance of American citizens is justifiable because we have had no terrorist attacks on our soil since 9/11.
It is specious reasoning to assume the Bush administration's actions have been the reason for no terrorist attacks on our soil since 9/11. For one, terrorist attacks on our soil are very rare and take a while to plot out, so we have no proof that any such attacks have even been attempted since 9/11. Simply put, you must put forth proof that a terrorist attack was attempted and prevented by the Bush administration's policies. Otherwise, you are merely making assumptions. For two, terrorist attacks on our soil have been prevented BEFORE the Bush administration's post-9/11 policies, so there is yet again no proof being put forth that tactics such as warrantless domestic surveillance are even necessary to thwart terrorism.
And lastly, the same people so willing to praise the Bush administration for no terrorist attacks on our soil since 9/11 are the same people that have given the Bush administration a pass for having ANY terrorist attacks on our soil under the administration's watch, INCLUDING 9/11. In other words, if a terrorist attack occurred on our soil tomorrow, the same people who praise Bush for supposedly preventing further terrorist attacks on our soil WOULD NOT denounce him for another terrorist attack on our soil under his watch. As far as I'm concerned, one was too many. If no further terrorist attacks have happenned since 9/11, that's how it's supposed to be and how it usually is. Enough with the specious reasoning creditting the Bush administration with praise without proof of an actual terrorist attack on our soil being prevented.

Posted by: ErrinF | January 10, 2006 06:05 PM

Nice link, patriot. It was interesting to see an element of the Right trying to correct itself. Since Bush became president, conservatism has run a little too rampant, and will have to correct itself to have much of a future. My suggestion of course would be to get rid of the sophistry and extremism of conservative talk radio that seems to be influencing the Right.
In return for your link, here's a link of my own:

http://www.pbs.org/wgbh/pages/frontline/shows/architect/view/

It's a link to an online Frontline episode about Karl Rove, specifically about how he and George Bush changed the state of politics in Texas then went on to effect the national front. I think it is essential watching for anybody who wants to understand the current state of politics in the U.S. The episode also does a good job of NOT demonizing Karl Rove, but rather explains how he operates without solely focussing on the 'dirty tactics' he is primarily known for (though it does include Rove's strange dependency on homophobia in EVERY primary or election Bush & Rove have been part of). It's also interesting because it was made right after Bush's re-election, but before everything went to hell in a handbasket for the administration in 2005. Kind of sad seeing all the expectations they had for Bush's second term. Oh, ya, and no mention of Plamegate.

Posted by: ErrinF | January 10, 2006 06:36 PM

Aaron Burr:

Please shoot again (in the nuts!)!

Please!

Posted by: smafdy | January 10, 2006 10:48 PM

I know nothing about the procedures used by agencies such as the NSA that gather information and disseminate it to those who act on such information. But aside from all the conspiracist points being made here, in a the real world, a practical system for collecting information cannot avoid incidental eavesdropping in innocent parties.

I imagine that there are figurative walls set up at these agencies, over which no pertinent information falling within categories like "suspect international calls" by analysts looking at the amassed data spit out by a computer as potentially falling within this category, are forwarded to higher levels in the administration.

Where I work, in the private sector, such walls are commonplace in any situation where there is a potential conflict of interest. We try our best to obey agreements, which we must sign, concerning the walls. Otherwise, the consequences could be very costly. I have seen breaches result in lawsuits that, rightly so, ended with the dissolution of firms.

From what I see here, in the case of government, oversight for spotting abuses is what this debate is about. It is not whether we should listen to and analyze extremely large amounts of communications data.

I also imagine that the people at agencies like NSA are professionals, and that decisions for releasing information is made by those with years of experience in determining what they deem as suspect. So, it appears to me that it is the information being sent over the wall that should fall within some area of oversight, but by whom?

Posted by: johnnyg in NE DC | January 11, 2006 07:10 AM

"no" in the above second paragraph should be deleted.

Posted by: johhnyg in NE DC | January 11, 2006 08:52 AM

Cayambe-In response to your post about the White Supremecist that was jailed in Canada. This man organized an attack on a newly arrived group of immigrants, yelling racist taunts and threatening them physically. He stated that he is part of a White Supremicist movement, that is using this as a deliberate tactic to try to gain support from other Canadians to do the same thing. Shades of Nazi Germany, this is how it started. As Canadians we want to have a just and civil society, that is our pledge. We are a sovereign nation and very different from America. To us this was a good decision.
I never feel I do not have access to free speech in Canada. To silence a ranting racist who threatens women and children, calling them names and scaring them. Surrounding them and attempting to assault them, this is not someone whose rights I am willing to protect. The fact this is an organized movement with the US organization taking the lead and trying to import their hate into Canada, no I have no interest in speaking up for the right to verbally demean others and convince some to attack people because of the skin they wear. Ugly and not a Canadian way of dealing with our immigrants.

Posted by: SpeakoutforDemocracy | January 11, 2006 09:34 AM

In responding to Chris Ford:
"there is honesty on the Right, not the hiding or dissasembling the Left tends toward these days." What nation are you talking about, Bush lied about Iraq, Bush lies regularly (too many to mention-such as saying he fought in a war and would rather do that than deal with his twins) you have so many republicans facing jail for their corruption and lies. The Left is not in power so it is a Right lying stealing event. Or maybe you are talking about another nation, it can't be the US because that would just be funny.

Why the label making Ford, you put everyone into categories and label them so you can then demean them for the labels you create. Why are you not capable of having a discussion without assumptions, or name calling. These are people you do not know, how do you know so much about strangers? Are you the guy on the 1-800 Dial a Psychic line? Or is anyone you disagree with automatically a Leftist. I was taught good discourse never involved making assumptions, or name calling. Your points should be strong enough they can stand for themselves, you don't have to add Leftie, raghead, or any of the other derogatory terms you love so much.
You say I characterize posters as white sounding or black sounding. You obviously skimmed what I said. When you call someone a raghead (or Sikh as I like to say) I assume you are not Sikh. When you speak of Jews in such derogatory terms, I assume you are not Jewish. When you talk about Japs, I assume you ar not Japanese. The white sounding, black sounding are your words not mine. I have no clue what a white sounding or black sounding person would sound like. It is your slipping your racism into political discourse that I have a problem with.
"Leftists have never read the great Leftist philosophers, but got it through assimilation with the other Lefties in conversation that speakers in opposition must not be given tolerance but shouted down since tolerance is repressive to the broader goals of society when it is a tool of majority power."
Why not discuss issues not labels. I have never called myself a Leftist, I have no need to cubbyhole myself it is cheap and inflamatory to name call instead of discuss opinion. I respect others opinions and can learn from them, others of all political spheres.
What is a Leftist Philosopher. Do you find them at Chapters under Leftist Philosophers? Is there such a category? I am not that lazy I read someone without name calling and decide if they have anything to teach.
Tolerance is repressive? Tolerance leads to peace, to good discourse, to treating others from different beliefs and cultures, different political speres as equals on this planet. Your strange beliefs I cannot relate to, but I will not call you Righty or any other names like Bush's bum boy. That is cheap and I am above that. I do not know why you cannot discuss without causing hostility, where is that great well of anger and hate coming from?
You say a conservative paints with a broad brush and blame name calling on the Left. Chris Ford you are the biggest name caller here, along with SiliconDoc. You both cannot discuss without attacking others personally.
All cultures are not equal you say. Equal to what, where, why? What is your model for equal? I personally think this is one of your White Supremecist statements. It links with your hateful name calling (ragheads,Japs,gays are like autistic people,Jews control everything) It would be very good to deal with your hate for others before you create a cancer in yourself. All that hate can't be good for your body or your mind.

Posted by: SpeakourforDemocracy | January 11, 2006 10:16 AM

Ten Signs of Political Quackery
8. Antagonism Towards Other Groups
To a political crackpot, there is always an enemy. Another race or religion, the "bourgeoisie" the "left" or the "right", "junkies", "the poor" or "the rich", any stereotype or racist construct will do. Enemies increase fear and group fanaticism, like in cults.

This is usually accompanied by conspiracy theories ("the vast right wing conspiracy", the "left wing conspiracy", "suppression of the truth"). Conspiracy theories make suppression of contrary opinions much easier, and make one's opinions seem undefeatable. If everyone is in on the conspiracy, then how can one trust any contrary evidence at all? But conspiracy theories, whether true or not (almost always false of course) add no validity to one's position.
Sounds like Ford to me

Posted by: SpeakoutforDemocracy | January 11, 2006 12:26 PM

Alex Ham,

You write, of the government:

===========================================
"It's never betrayed me so until it does, I will trust my proven leaders and feel confident with their protection."
===========================================

and, earlier, I think:

===========================================
"Call me what you may, but I trust our elected officials despite the few rotten apples."
===========================================

I don't want to call you anything, and I'd like to thank you for posting. And in a way, I admire your trust. But it wasn't shared by our Founders, and I think that many millions of people have enjoyed freedoms that they otherwise would not have had, thanks to the Founders' suspicion of those who would hold the offices that they were devising.

You also write:
===========================================
"Point being your civil liberties are safe."
===========================================

I'd really like to know how you know this for sure, even about the present, much less about the future.

Finally, you write:
===========================================
"We're not Burma, Peru, or Rome. We will not fall like these others because our government is unique, the first of its kind. If our "great empire" falls it will be due to the increase of decadence and the rescinting of moral fiber."
===========================================

Of course, Burma could say that it wasn't wasn't Peru or Rome. And Rome could say that it wasn't like those Hellenistic kingdoms. And Macedon wasn't Egypt. And many countries have unique governments - but that doesn't mean they can't slide into tyranny.

Rome also seemed new and unique in its day, quite as much as we do in ours. And Athenians, too, thought themselves unique.

Human beings being what they are, there is always the danger that power will be abused and freedom curtailed. Some systems do a better job than others at restraining that danger, but no system can prevent it, unless citizens are constantly making sure the system is being followed.

If there is any guarantee, as you claim, that we will not slide into tyranny, that guarantee can only last as long as our system is upheld and maintained in situations like the current one, by citizens insisting that no branch may overstep its powers, and that there must be oversight of potentially dangerous powers.

There's something a bit circular about taking what seems like an abuse of the system (breaking the FISA law), and saying that the abuse isn't such a problem because we're safe from tyranny, because of the excellence of our system. Excellent as it may be, what we're dealing with is (at least potentially) an abuse of that system.

If, as you say, the excellent structure of our government protects us from the dangers of tyranny, that's all the more reason to be concerned about possible damage to that structure.

Thanks for posting your thoughts.

Posted by: Beren | January 11, 2006 01:34 PM

Beren,
Bravo. Excellent post.

SofD,
The points on civility have been made. No need to further push it... I do believe Chris Ford does have value he could add add to this blog if we all engage in mutual respect and earnest, honest debate.

Posted by: Matthew | January 11, 2006 03:01 PM

"From what I see here, in the case of government, oversight for spotting abuses is what this debate is about. It is not whether we should listen to and analyze extremely large amounts of communications data."

Yes, johnnyg this is exactly about oversight. But what did the President say in his town hall meeting today? He "forgot" to mention the oversight part, but was sure to mention that "monitoring the phone calls of affiliates of the terrorist network al Qaida is necessary to protect the United States."

Of course this President never lies. He just puts his words together in ways that make people get false impressions - like today's implicationi that the alternative of his spying is not to do it and thus keep him from protecting the country. Nary a word about the fact that its the lack of oversight that's the problem. He can spy on al Qaeda outside of the US any damn way he pleases, but he can only spy domestically with probable cause and oversight, with someone besides the executive branch determining what constitutes probable cause and oversight.

Ya gotta give him credit for his clever word parsing, but how Alex Ham could think it shows him to be trustworthy and honest is simply beyond me.

We need a mantra. To borrow from the 92 election I think it should be: ITS THE (ABSENCE OF) OVERSIGHT, STUPID.

(In case you're too young to remember its a revised mantra from the 92 election, It's the economy, stupid. I'm not calling you personally stupid)

Posted by: patriot 1957 | January 11, 2006 05:31 PM

Speak - Out

You stand up and nobly declare yourself above labels, yet you stupidly call me a "white supremacist" depite my ethnic makeup.

You make a spiel about tolerance after endorsing Canada's hate speech laws stifling certain forms of speech in the name of benign authoritarianism. Perhaps you know that the Canadian authorities are now considering making "over the line America-bashing" a prosecutable hate crime? Referencing the Sunera Thobani case - where a typical Prof of Woman's Studies Lefty went into the usual America bashing, but this time someone complained if Pals, Jews, Kofi, Aboriginals, Gays are to be protected as a distinct group, hate speech against Americans also falls in Section 220 and 319 of the Canadian criminal code?

http://www.pacificresearch.org/pub/con/2001/con_01-10-24.html

I guess what goes around comes around in the land of the Maple Leaf. If you fine people and toss them in jail for citing Bible and thus advancing "homophobia" - then you best watch your Yankee-phobia, too!

"I am not that lazy I read someone without name calling and decide if they have anything to teach. Tolerance is repressive? Tolerance leads to peace, to good discourse, to treating others from different beliefs and cultures, different political speres as equals on this planet."

Unfortunately, your laziness is on disply as your remarks show you are utterly clueless about Herbert Marcuse, who was opposed to tolerance, wrote that the politics of confrontation must be used to shut down unacceptable speech of a repressive majority, and who endorsed thought policing of the sort you champion up North with your "pleasantly authoritarian" hate speech laws.

"All cultures are not equal you say. Equal to what, where, why? What is your model for equal? I personally think this is one of your White Supremecist statements."

Only a Lefty deep in the grip of a philosophy of moral equivalency to better legitimate multi-culti would argue that people saying "all cultures are not equal" are wrong. It takes wilfull blindness to maintain that "it is completely subjective, not my place" to judge Canadian culture and institutions as "better than" N Korean culture.

"It would be very good to deal with your hate for others before you create a cancer in yourself. All that hate can't be good for your body or your mind."

What sort of New Age babblespeak is that? Typically, Lefties always assail the conservatives motives or inner character, aping the Marxist model of always speaking to motive, instead of to fact. Conservatives, on the other hand, usually ascribe Lefty thoughts as a mixture of naivete, stupidity, and preferring to feel vs. think - as your last observation elequently proves.

The problem with that is that while conservatives have largely won the war of ideas (even in Europe the tides are turning, as leader after leader has begun warning the populace of the problems in sustaining the social welfare state and the "played-out" ideals of PC, multi-culti, moral equivalency) the Left only thinks they need to recalibrate by escalating and harshening their rhetoric.

White supremacist! Racist! Bigot! Islamophobic! Homophobic! Bush lied, babies died! It's ALLLLLL about the Oiiiilll! "Conservatives are hate-filled cancers!"

Well, the fruit of trying to make Canada more elite-driven like France, more pacifist than present-day Germany, more PC than Sweden will be borne out in the Jan 23rd elections.

The other thing of course is that conservatives are starting to zing back a few personal insults in response to the Left's use of slurs. So lets say that as a Canadian, and a disliker of Western Civ, you likely make the tough nation-builders of past generations up in Canada puke if they were able to get your measure as a man. And that the continued drift of Leftists out to bash all institutions of Western Civ, past Canadian culture, America-bash, and glory in the "equal culture" of radical Islam - the more the Canadian mainstream will brand those as enemy sympathizers or Francophiles.

Posted by: | January 11, 2006 05:43 PM

Chris Ford, I think (best guess), writes, inter alia, "The other thing of course is that conservatives are starting to zing back a few personal insults in response to the Left's use of slurs."

Left and right have both been using slurs for as long as they have existed, I think. In both cases, those slurs, and the strawmen that usually accompany them, are enemies to rational discussion, and a hindrance to the pursuit of truth.

Posted by: Beren | January 11, 2006 06:19 PM

Ok, so you're both guilty of doing it. Does it make it any more right? You still haven't answered whether you're down with being called a 'fundie' because your arguments are often the same espoused by 'fundies.' Or 'redneck'? The list can go on and on of things I could potentially call you based on what you have said. Simply name calling does nothing but speak of your own ignorance, whether you are liberal, conservative, canadian, american, or whatever.

Using these words accomplishes nothing but an attempt to rile a person you are having discourse with. And if you are attempting to rile them rather than win them over with facts and arguments, then theres no point in posting here as you seem to not care about having a true debate based on the exchange of knowledge and ideas.

Notice how a large part of Ford's arguments revolve around bashing the left and accusing them of doing to the right precisely what he is doing.

Posted by: Freedom | January 11, 2006 06:26 PM

patriot 1957: "But what did the President say in his town hall meeting today? He "forgot" to mention the oversight part, but was sure to mention that "monitoring the phone calls of affiliates of the terrorist network al Qaida is necessary to protect the United States."

I did not hear or read that speech, but aside from what the President said today, from the point of practicality, how can a secret court possibly keep up with this information. I realize they can retroactively approve or disapprove, but I imagine that the information flow is tremendous.

At the same time, adding additional bureaucratic layers to the process up front would hinder the "real time" nature of these things. I was in government for some time, and now work with it from the outside almost daily. I have experienced increased delays whenever more layers to the onion are added for purposes of "improvement" by way of increased oversight. I am not saying that oversight would be a bad thing; it appears that the system in place now cannot effectively deal with it. At this time, I believe trust is all we have until this plays out and analyzed for future similar situations.

Posted by: johnnyg in NE DC | January 11, 2006 08:13 PM

Chris Ford, I agree with most of what you have posted here, and also in past dialogs, but you are busted with that CAPS post. :)

Stay with the facts, which you have a keen ability (and the time) to gather and arrange for argument.

But I agree with many that you should supply the 8 lower court findings, since you relied upon them here several times, and the those who want to know cannot locate them. If this was an error or insubstantial information, say so and move on.

Also, lighten up my friend. I agree that "lefties" are all mouth have little to contribute, but don't let them draw you in and drag this discussion down to where it is now.

Posted by: johnnyg in NE DC | January 11, 2006 08:49 PM

"I am not saying that oversight would be a bad thing; it appears that the system in place now cannot effectively deal with it. At this time, I believe trust is all we have until this plays out and analyzed for future similar situations."

And when would that analysis for future similar situations occur? Three and a half years of "trust" with absolutely not the slightest effort to find a legal and workable solution exceeds the bounds of my trust and my credulity.

There are two issues here, 1)listening to the domestic side of al Qaeda calls, and 2)"data mining", or listening to widespread domestic calls regardless of whether or not the caller is a suspected terrorist, listening for suspicious phrases.

If we know enough al Qaeda phone numbers and names to listen to the domestic end of their calls, a retroactive FISA warrant should be nothing more than an minor inconvenience. We pay lots of people in government to do less. I have as yet heard no reasonable explanation why the President acted outside the FISA law for this.

Data mining is indeed a different ball game. "Mining" calls is indeed likely to create hits faster than we can keep up with them. And, as we discussed on this post before, without a prior reason to suspect the caller is a terrorist, what is mostly likely to be obtained is false hits. How many people say "we set the date" for their wedding, or "Your package will be delivered tomorrow", especially at Christmas? Thousands, millions. Yet we know on 9-11 that the message about the attack wasn't even listened to until later. So if its this critical that we give the president a blank check to break the law in order to protect us, do we know if he's even hired enough screeners and translators to do this emergency transcription? If you're going to make the "all speed was required" arguement then there actually has to be speed.

SEcond, your arguement that the FISA law wouldn't have allowed such mining, and that the President had to act immediately for our safety, could be credible had he acted first while getting the law fixed. But it does not explain why the President made no, none, zippo, nada effort to fix the law. Given that Congress passed the Patriot Act without having enough time to read it first and the Hammer got anything passed that he wanted at that time (even if he had to hold votes open for hours while bribing, threatening and arm twisting), saying Bush couldn't have started the spying and then gone to Congress in secret session to change the law doesn't pass the smell test.

The most ironic part of this is that as a Tom Clancy fan I always assumed data mining was going on for threats against the nation/assasination plots, etc. I just naively assumed that Congress wrote the laws regulating it, the president signed them, the people conducting the surveillence at the NSA had oversight (audit trails, etc), search warrants were required to investigate the snared, and if anyone believed themselves unjustly snared, the Supreme Court ruled on the constitutionality of the laws. That's a different ball game from the President ordering the NSA to do it, telling one or two members of Congress who had no power to oversee it,stop it or change it, and using the information to declare someone an enemy combatant and strip them of their right to an attorney.

And while I'm on a rant,lets talk about the consequences of labelling someone a "terrorist" or "enemy combatant" and stripping them of their civil rights because terorrists don't deserve civil rights... People shrugged off Abu Ghraib because "they're terrorists, they don't have civil rights, they're not human and don't deserve humane treatment." Except that the Red Cross said at least 75% of those in there were innocents snared in broad raids, and, if you read the reports from the time we let about 75% of the prisoners there go after the scandal broke. If they weren't terrorists why were we imprisoning and abusing them when goodwill is the key to winning the PR war? If they were terrorists why would we have let them go? And now the President has as much as said that those who broke the story of his lawbreaking were traitors, and that those who give "irresponsible" criticism are unpatriotic. What a slippery slope we stand on!

Posted by: patriot 1957 | January 11, 2006 10:07 PM

I don't mean to pick one thing out of your thoughts patriot 1957, but "could be credible had he acted first while getting the law fixed" is not the President's bag. As you know, it is Congress that legislates.

If you don't believe this topic is at, or near the top of the heap over there, with concerned citizens like yourself calling and petitioning their representatives, you are mistaken. Futhermore, from reading all the above information, it is not absolutely clear that the President did, in fact, overstep his bounds. As is painfully clear here, one can take a reasonable position on either side of this issue

Remember that government is like a turtle, but even slower. However, sometimes this pace is beneficial for big issues like this one (except, of course, with the agency I deal with :().

Dealing with the Patriot Act seems easy compared to this stuff. In any case, it will be ending soon enough. (That act really pissed off my wife, the good librarian she is. He He)

Posted by: johnnyg in NE DC | January 11, 2006 10:42 PM

Who ever dreamed it would be the librarians who would be the defenders of our civil rights.

But then it makes perfect sense. I didn't understand why they burn books - i.e. the extent to which the power of ideas can be spread through books - until I read Atlas Shrugged (Ayn Rand).

Thank your wife for me.

Posted by: patriot 1957 | January 11, 2006 11:56 PM

"but "could be credible had he acted first while getting the law fixed" is not the President's bag. As you know, it is Congress that legislates. "

Well, its supposed to be that way. But we had 4+ years of Congress as the shill of the White House. Sorry, but if the White House had seen the law was inadequate and wanted it changed, the Hammer would have seen to it that it was changed. And if the White House didn't want the matter to come up in Congress, it miraculously wouldn't have.

Mercifully, some of our Senators and REpresentatives seem to be re-growing their spines. Maybe they got a hold of that bone-growing serum from the Harry Potter movie or something.

Posted by: | January 12, 2006 12:06 AM

While we're on the topic of the legislature.... Until I read of the "secret" spying, the most concerning thing I had seen was that the House had passed (at my last count) FIVE court stripping bills - bills that forbid the Supreme Court from ruling on certain legislation.

Lockstep control of the legislation passed by the Congress, and (before they started dying or retiring) trial balloons sent up about ways to sidestep the Supreme Court that they hadn't yet had the opportunity to pack.

No, my trust has been all used up. Even the most trusting need to take their cue from Reagan and "trust but verify".

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

1. I discussed the lower court numbers in context with Powerline and Volokh Conspiracy back before Christmas, when they were looking at case law. Anyone is free to visit those sites. The requests to "show me!!" come from non-lawyers demanding that I serve as their personal research assistant, prepare abstracts for them, for cases they cannot understand on sites they are too lazy to visit themselves.

Stuff that.

Too many Lefties imagine they are cast in the role of professors, cast opponents as their subordinate students, and imagine they are entitled to demand time of such lowly students to provide them "additional info" and control their time. It's a Marxist debating tactic meant to distract other debaters by "assigning" them errands to run. They have absolutely no interest in the material you provide, it is in subordinating other posters to their wishes to find and provide this or that that is the real victory. You see this tactic on forums where some newbie mentions a poll and the old Leftys come out demanding "Proof! Proof!" "Show me the poll link. Calculate the standard deviation for me. Show me the polling data. Since you mentioned the poll, you are now under these non-negotiable demands in order to satisfy us." Stuff that!

If they are honest, and honestly interested in the case studies - they will look, analyze - write here and debunk Powerline's Hindraker's observations, and look at the stuff on Volokh and say why they agree with Volokh why Bush technically violated the law , despite past decisions that Volokh discounts.

But they won't. That requires effort.

2. The poster ErrinF got the caps treatment after she went particularly out of control on one thread where she did 45 ad hominems out of 93 posts, including some directed at you, JohnnyG in NE DC, if I remember correctly - then 6 pure ad hominems directed against me in this thread before I responded with a shout-out "knock it off!!" message. I'll happily do it again if she vandalizes another thread.

"Also, lighten up my friend. I agree that "lefties" are all mouth have little to contribute, but don't let them draw you in and drag this discussion down to where it is now."

Then it would help if you notice ErrinF once again getting out of control and sliming right and left to also tell her to knock it off.

3. "I realize they can retroactively approve or disapprove, but I imagine that the information flow is tremendous."

Not only is the data flow tremendous, it is also nebulous. A call from a suspected Al Qaeda may go to an unknown party in the US who we find paid for a phone in cash in Jersey City who listed no address and we don't know if they are American, resident alien, illegal alien and from the initial intercept we don't know from the conversation if they are innocent or not because the single call was not "conclusive" on showing a plot involving criminal or terrorist activity. Only by listening further may you figure out if that person is involved in terror or is simply an innocent party. But try going to a Almighty Judge seeking a probable cause search warrant on grounds this guy suspected but not confirmed as enemy, on the word only of a foreign intelligence service not to be named, who placed a call to this unknown person at a previously unknown phone in Jersey City wishing the person a Happay Ramadan, mentioning perfectly legal Koranic texts, talked of driving a truck, and concluded with several "God is Greats!!" But in the real world outside the "suicide civil liberties bunch" - we really need to learn more about this Jersey City person...

4. JohnnyG-

"I have experienced increased delays whenever more layers to the onion are added for purposes of "improvement" by way of increased oversight. I am not saying that oversight would be a bad thing; it appears that the system in place now cannot effectively deal with it."

This particular "oversight" did more than introduce delays and inefficiencies. The Intelligence Committees and the Executive, then the 9/11 Commission said that FISA Court oversight never envisioned the explosion in telecomm and computer technology, it was directly responsible for the creation of the Gorelick and pre-Gorelick wall between intelligence and law enforcement, failure to connect the dots, and why CYA bureaucrats lost track of enemy penetrating into the Homeland.

Worse, it would be difficult to change the law originally intended to correct Nixon and Watergate while still keeping an eye on Soviets ---without publicly discussing what had to be done to change the law that FISA was screwing up and alerting the Islamoid enemy---Betraying or having a high risk of betraying sources and methods of intelligence collection and counterterrorism that required not dealing with the FISA impediment. Better to do what all Presidents have claimed the right to do since Carter - assert their Article II Constitutional duty to defend the country and not let Congressional legislation interfere with Constitutional duty. Remember that 5 top Democrats were briefed on this since back in 2002 and none said a peep.

And FISA never envisioned the mechanics of getting several hundred million judges issuing several hundred million warrants a day for computers to "listen" to several hundred million phone calls overseas to pull out from the filters a few highly suspicious ones. Or how to tell that the 500 Verizon phones purchased in bulk from a Chicago warehouse and sent to Pakistan were in use by Americans, Pakistanis, or dual citizen American-Paks - given the unfortunate lack of "Hi! I'm an American wife of a Paki in Karachi" caller ID.

The friends of enemy rights demand we stop listening to everyone so "precious liberties" are never compromised for a little terrorist/WMD security.

The public appears to have common sense and is of a mind that "Yeah, it might be a little intrusive, but no different than having bags searched at the airport. Better that than giving Islamoids free rein to kill us".

5. JohnnyG - "At this time, I believe trust is all we have until this plays out and analyzed for future similar situations."

In the absence of trust, you will have the FBI bugging closed committees of Congress for signs of criminal acts, members of the AG's staff insisting that they be allowed to monitor Supreme Court deliberations and, of course, robed lawyers tasked with monitoring the 3rd branch of government to assure the non-trusters that that branch cannot be as "un-checked" and "unaccountable" as Congress or Scotus.

But we saw the lack of trust in the mid-70s - set up walls, and formal delay-minded constricting "oversight", and CYA bureaucrats preferring the "safe path" of doing nothing - that likely contributed to large numbers of Americans dying.

In war, the Exec consults with Congressional leadership, moves fast and combat with the enemy cannot wait on "leisurely court deliberations and due process rights for enemy given full criminal rights. We cannot win a war led by lawyers and courts, no matter how much liberal Democrats look to activist judges as superior and above the Exec or Congress.

Posted by: Chris Ford | January 12, 2006 12:54 AM

Chris Ford,

You write:
=============================================
"I discussed the lower court numbers in context with Powerline and Volokh Conspiracy back before Christmas, when they were looking at case law. Anyone is free to visit those sites. The requests to "show me!!" come from non-lawyers demanding that I serve as their personal research assistant, prepare abstracts for them, for cases they cannot understand on sites they are too lazy to visit themselves.

"Stuff that.

"Too many Lefties imagine they are cast in the role of professors, cast opponents as their subordinate students, and imagine they are entitled to demand time of such lowly students to provide them 'additional info' and control their time. It's a Marxist debating tactic meant to distract other debaters by 'assigning' them errands to run."
===========================================

Some comments. First, distraction by initiating a tangential and burdensome request for information is not a specially Marxist tactic. It's used (unfortunately) by people of all ideological stripes.

But it is also quite legitimate in debate or in discussion to ask a person for the details of the facts he cites. I don't think that Matthew was insisting that you go and be a research assistant and provide a lengthy report on the context and ramifications of each case. Simply saying, "1. Fishmonger v. Grocery Store Clerk; 2. US v. Saudi Soccer Team; 3. Smurfette v. Gargamel," and so on would have been enough. Then we could all look up the cases to which you refer. (Until you list them, the problem is that even if we find references to cases at volokh and powerline, we don't know whether those are the ones you're referring to or not, so it's hard for us to address your argument.)

But, though I haven't had time to get to powerline and hunt for the cases, I have tried to work my way through the relevant postings at volokh.com. I have to admit that so far, I haven't found the eight cases. But I did find a lot of interesting information, and I thank you for pointing us all towards it.

At volokh.com, Orin Kerr has several interesting postings on this issue.
(http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722)

But I don't know how much he agrees with you. For example, Kerr says he finds the administration's argument that the AUMF automatically authorized domestic spying unpersuasive. He says it's an open question whether the spying violated the Fourth Amendment, though he can see a way one could try to argue that it didn't. But he acknowledges that the spying probably did break the FISA law.

On one of the key questions that we have been debating (whether FISA is unconsitutional), Orin Kerr has the following to say:

++++++++++++++++++++++++++++++++++++++++++
" So the argument, as I understand it, is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, a judgment made, I suppose, by the President himself.

"_I have been unable to find any caselaw in support of this argument_. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases -- Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch." (Underlining mine.)
+++++++++++++++++++++++++++++++++++++++++++

All in all, I'm a bit surprised that Kerr can't "find any caselaw in support of this argument", given those eight cases that he should know about. But, to be fair, by now we've been referring to those eight cases for so long that I may be wrong about what you were citing them to prove. Maybe they were decisions on a different question? I welcome your correction. I did think you were using them to prove the argument Kerr was just addressing. You wrote:

===========================================
"Every President though, since FISA was passed has said the law cannot be applied in an unconstitutional manner and usurp Article II Powers that are the Executive's alone in dealing with foreign powers or agents of foreign powers. 8 court decisions so far have sided with the Executive."
===========================================

But perhaps I've misunderstood, and you were referring to a different issue from the one that Kerr was discussing?

Kerr also links to a very interesting letter by Marty Lederman and others
(http://balkin.blogspot.com/#113684989859749383)
which analyzes DoJ's legal claims, and provides more useful material for debate.

Kerr also has a more recent post, responding to the Congressional Research Service's (CRS's) analysis of DoJ's claims. Speaking about the CRS report, Kerr writes the following:

+++++++++++++++++++++++++++++++++++++++++++
"it says that if you accept that the NSA program violated FISA, then the claims in DOJ's letter as to why the AUMF or Article II trump FISA are relatively weak. I agree; the CRS analysis is pretty similar to my initial post on the NSA program."
+++++++++++++++++++++++++++++++++++++++++++

(This is at http://volokh.com/archives/archive_2006_01_01-2006_01_07.shtml#1136618079)

I try not to post links too often, but the above really are quite valuable reading for all of us that are interested in this topic, I think. And I thank you, Chris Ford, for directing us to them. I remain puzzled, though, about these eight cases.

Thanks for your post.

Posted by: Beren | January 12, 2006 02:41 AM

1. I discussed the lower court numbers in context with Powerline and Volokh Conspiracy back before Christmas, when they were looking at case law. Anyone is free to visit those sites. The requests to "show me!!" come from non-lawyers demanding that I serve as their personal research assistant, prepare abstracts for them, for cases they cannot understand on sites they are too lazy to visit themselves.
2. The poster ErrinF got the caps treatment after she went particularly out of control on one thread where she did 45 ad hominems out of 93 posts, including some directed at you, JohnnyG in NE DC, if I remember correctly - then 6 pure ad hominems directed against me in this thread before I responded with a shout-out "knock it off!!" message. I'll happily do it again if she vandalizes another thread.
Then it would help if you notice ErrinF once again getting out of control and sliming right and left to also tell her to knock it off.
Posted by: Chris Ford | Jan 12, 2006 12:54:17 AM

1. What a crock. Chris Ford put out faulty web addresses for people to look up to follow his claims. When you followed his web addresses, you discovered they didn't lead to anything. For powerlineblog.com, he told debaters to go to powerline.com. For volokh.com, he told debaters to go to volokhconspiracy.com. Here's the proof:

'Matthew - "So, Chris, what are those 8 cases?"
Ummmm, you mean the 8 Lower court decisions that you refused to go over to Powerline.com and Volokhconspiracy.com after I told you where they were, to read them, and return and discuss what you thought on Emily's blog?
Posted by: Chris Ford | Jan 6, 2006 10:27:37 PM

Couldn't be any clearer. Chris Ford gave out BAD data, and now he's trying to cover his tracks by making up excuses and misrepresenting the situation. Nobody's asking him to be their 'personal research assistant'; He's just desperately trying to cover up the fact that he screwed up. In his usual way, he is throwing forth everything he can to try to cover up his screw-up. A more rational person would simply admit they had made a mistake; Chris Ford has yet to admit that the web addresses he TOLD people to go to (powerline.com and volokhconspiracy.com) were a mistake on his part.

2. Your usual half-history, Chris Ford. We could take you at your word about my supposed 45 out of 93 posts from a past debate, but why should we? Offer some proof. Instead, you make a baseless claim and have no posts from me to put forth to support what you claim. Again, instead of facing the present situation, you site some half-truth from the past that we're all supposed to take your word on. Face it: You are constantly full of it, Ford, constantly painting a misleading picture of things.
As for me making ad hominem attacks on you this time around, again you misrepresent. I've taken you to task for your love of historical half-truths, and specifically pointed out how you put out those faulty web addresses. Pointing out that somebody has made a mistake is NOT an ad hominem attack.
Lastly, as for vandalizing threads, I have never been accused of that by anybody but you, Chris Ford. If I recall correctly (and I do), you wholeheartedly supported the recent actions of a debater named Silicon Doc, a REAL vandal who was so bad that they are no longer with us. So you obviously care nothing about vandalization except to throw it out as a baseless attack used to cover your own hide. Pathetic. Using one lie to cover up another is all you seem capable of lately, Ford.

Posted by: ErrinF | January 12, 2006 10:18 AM

Chris Ford, I agree with most of what you have posted here, and also in past dialogs, but you are busted with that CAPS post. :)
Posted by: johnnyg in NE DC | Jan 11, 2006 8:49:24 PM

LOL! For johnnyg to post anything that is remotely supportive of me rarely happens, so I'd listen to him, Chris Ford. Losing your cool and posting in all caps obviously proved to be quite counterproductive indeed. Well done. : )
And to johnnyg himself, thanks for the support! I better go keep an eye out for blue moons and flying pigs...

Posted by: ErrinF | January 12, 2006 10:41 AM

First Chris it is getting exceedingly tiring reading "lefties do this lefties do that" drop the cheap put downs in the guise of dialogue. Who really cares to read anyone who resorts to cheap attacks on others, and labelling them according to your view and opinion of the world. A person with an opinion is only that and whatever their political leaning who cares. The idea is not to put down those with views that diverge from our own with irrelevant labels, it is to discuss and learn.Even though many here have accused you of the same thing and are tired of the same behavior you keep ticking like the Everready bunny labelling everyone here.
Chris Ford's First point-
"Perhaps you know that the Canadian authorities are now considering making over the line America bashing a prosecutiable offense."
Typical Ford, when in doubt make it up.This is not true and would never happen.
Hate Crime Laws are, "Offences Against the Person or Reputation." Since when did America become a person? Did I miss something?
Section the Canadian Criminal Code section 220 that you quote PART VIII OFFENCES AGAINST THE PERSON AND REPUTATION
CRIMINAL NEGLIGENCE
220. Every person who by criminal negligence causes death to another person is guilty of an indictable offence and liable
(a) where a firearm is used in the commission of the offense, to imprisonment for life and to a minimum punishment of imprisonment of four years.

How the hell does this relate to a Canadian who you say is America bashing and that is a prosecutable hate crime?
First America has to be declared a person, then Sumera Thabani has to go to the US and use a firearm to shoot America. You are ridiculous and waste time citing untruths as truths and sending links that have nothing to do with anything. You cannot back up opinions based on lies.

I read Sunera Thobani's speech. She spoke up about what America was doing and that it had blood on it's hands. She did not incite hatred, unless you consider a truth that diverges from your opinion hatred.
Sunera spoke up about the CIA assisting the overthrow of Democratic countries to furthur their own ends. She did not tell people to kill America or incite anything except the truth.

One individual asked the RCMP to charge her with a hate crime. It is unfounded, even the RCMP agree on that.

Posted by: SpeakoutforDemocracy | January 12, 2006 11:11 AM

Chris Ford says:
So speaking to me you said, "as a Canadian and a disliker of Western Civilization."
Did I ever tell you I was a disliker of Western Civilization? You made this up like every piece of crap you use to justify your lies. You do not know me, you may think you are psychic, I think you are someone who knows their case cannot be backed up unless lies a re used.

You sound no different than radical Islam, lots of propaganda. You are twins with your enemy. You say Lefties slur, yet anyone reading your missives can see it is one continual slur. Does that then make you a Leftie, because you slur?
Chris Ford's teenie tiny world is mean, small minded, and hateful. You lie to justify your opinions.
I see others here are asking you to back up your position time in and time out and you pretend you don't read it. You know pure hatred is not a political position that can be backed up.

Posted by: SpeakoutforDemocracy | January 12, 2006 11:23 AM

Sunera Thobani's hate crime speech, included these points:
-America needs to abide by International Law The CIA's coup against the democratically elected government of Chile killed 30,000 people.
The US backed regime in El Salvadore used death squads to kill 75,000 people
The initial bombing of Iraq killed 200,000
The CIA sponsored a coup in Guatamala that killed 150,000 and 50,000 dissappeared.
2,000,000 were killed in Vietnam.

America having blood on it's hands, how can any sane person argue that. If America was a person as Chris Ford suggests then there is no doubt that America is a psychopath. But America is a nation whose behavior people and countries are tired of. Change needs to happen, and it will through democracy.

Posted by: SpeakoutforDemocracy | January 12, 2006 11:38 AM

Chris Ford-

At risk of being the last in a long line of people making accusatory statements towards you I will try to make one in my own defense.

I do not doubt that there is evidence at powerlineblog.com or volokh.com of 8 cases. I have visited both those sites.

Powerlineblog.com, today, is infested with the Alito mess (as it should be, that's the relevant news today). When I visited it a week ago it was not, but even on that front page there was no mention of 8 cases. From the top of that website I am left with: "About Us" (no help) "Print Version" (no help) "XML Feed" (no help) "PDA" (no help) "Shop Powerline" (no help) "Publications" that mentions only one case up front that has to do with JAG's poor reception on Yale's campus because of the don't ask don't tell policy of the military (hardly relevant).

Then I had a chance to guess which of 3 contributors were credited with the 8 court cases because, until now, you haven't told us. Now I choose John Hinderaker and what do I find? 12+ articles all of which predate the NSA story!

My final option is to sift through archives searching for 8 missing cases that, for all I know, don't even all exist in the same article. For January's archive, the search "8 case" or "8 court" or any variation thereof generates 0 hits. Merely typing "8" only generates ONE hit.

Chris, you've read the article. I am not doubting that 8 court cases exist, that you think they support your view, or even that they DO support your view. But help me! Please! I do not want you to do the research, I just want you to tell me what month you read the relevant article, or what the title might have been. Help me find them.

Do these cases have names? Can you recall them? Any of them? I just need a little more of a nudge than "powerline" or "volokh".

Posted by: Will | January 12, 2006 12:35 PM

Chris Ford:

I've given you the benefit of the doubt and even defended you to an extent against SofD. But the street goes both ways. And in a debate, if you are introducing evidence, the burden is on you to explain it. This is not an attack on you as a person (ad hominem) but a defense of the integrity of the debate system. Quite frankly, debates would be completely silly if either side were free to interject whatever unsupported and potentially fabricated evidence that they wished. So stop digging yourself into a deeper hole with these lower court decisions and simply come clean as to what, if anything, you know about them. As Beren has suggested, simple case names will do. Or an acknowledgement of ignorance.

"1. I discussed the lower court numbers in context with Powerline and Volokh Conspiracy back before Christmas, when they were looking at case law."

The citation that you were asked about was from January 5, before Christmas 2006, I suppose, but not considered "before Christmas" in the general sense. More generally, it would be considered LAST WEEK. And you've been asked about the same more or less every day since.

"Anyone is free to visit those sites. The requests to "show me!!" come from non-lawyers demanding that I serve as their personal research assistant, prepare abstracts for them, for cases they cannot understand on sites they are too lazy to visit themselves."

I actually have gone through law school, Chris Ford, have you? Because we're taught that when you make an assertion, you support it. And the only person who has said anything about abstracts has been you. I've simply asked WHAT THESE CASES ARE. I'm not asking you to act as MY own personal research assistant. I'm asking you to act as your own. The following exchange would be completely absurd:

Atty: Your honor, the evidence is admissible because the 4th Amendment does not cover red convertibles.
Judge: And where did you get this jurisprudence, counselor?
Atty: On the Internet, your honor.
Judge: And what, specifically, are these cases?
Atty: Well, I can hardly be expected to do my opponent's research for them. If they're so interested in what they are, they can go find them.

"Stuff that.

Too many Lefties imagine they are cast in the role of professors, cast opponents as their subordinate students, and imagine they are entitled to demand time of such lowly students to provide them "additional info" and control their time. It's a Marxist debating tactic meant to distract other debaters by "assigning" them errands to run. They have absolutely no interest in the material you provide, it is in subordinating other posters to their wishes to find and provide this or that that is the real victory. You see this tactic on forums where some newbie mentions a poll and the old Leftys come out demanding "Proof! Proof!" "Show me the poll link. Calculate the standard deviation for me. Show me the polling data. Since you mentioned the poll, you are now under these non-negotiable demands in order to satisfy us." Stuff that!"

See above. This was a fact, put forth by YOU, to support an argument that YOU made. If YOU do not know where the fact comes from or even what sorts of cases were ruled in favor of the Administration and what sorts of rulings they were then YOU should say as much. You can't simply dismiss it with a (basically), "Well, you can find support for it somewhere on the Inernet."

"If they are honest, and honestly interested in the case studies - they will look, analyze - write here and debunk Powerline's Hindraker's observations, and look at the stuff on Volokh and say why they agree with Volokh why Bush technically violated the law , despite past decisions that Volokh discounts.

But they won't. That requires effort."

Professor Hindraker is not posting on this blog. YOU are. If all you are simply doing is aping arguments made by others, then come clean about it. Say at the beginning of a post, "According to Prof. Hindraker" and make it clear that these are not your arguments. If they are your arguments, then YOU should be able to defend them. I expect to be able to be when I set something forth. Or at least I'm willing to acknowledge when something I lay out is trumped by better evidence.

So, to paraphrase The Breakfast Club: "Just answer the question, Chris!"

Posted by: Matthew | January 12, 2006 12:46 PM

Matthew,

Well said.

ErrinF,

For honesty's sake I have to say that while Chris Ford has (at least technically) used arguments 'ad hominem' on this thread, so have you. An argument 'ad hominem' is an argument that seeks to defeat a point made by an opponent by arguing from some personal attribute(s) of the opponent, rather than from the nature of the evidence or the reasoning itself.

A case in point would be, "Any historical analogy from [Chris Ford] is highly questionable due to his bias." This is 'ad hominem', because it doesn't actually address the historical accuracy of the analogy, but seeks to invalidate it because of the person who made it.

Both you and Chris Ford are smart and have lots of useful arguments to make; neither of you needs to use arguments 'ad hominem'.

Posted by: Beren | January 12, 2006 02:21 PM

"I better go keep an eye out for blue moons and flying pigs..." Don't bother Erinnf, this is probably the only thing you and I would ever agree on, ever! LOL

And Beren and Chris are right. You are equally, if not more guilty than Chris in using this manner of arguing.

Posted by: johnnyg in NE DC | January 12, 2006 03:31 PM

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