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.

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.

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.

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.

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

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.

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.

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!

Have a really good vacation Emily. You deserve it.

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.

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."

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.

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).

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.

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.

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.

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?)

I am compelled by the above reasoning.

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.

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.

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?

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.

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.

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.

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."

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?

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.

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.

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.

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?

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?

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.

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.

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...").

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.

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?

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.

"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.

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.

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.

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.

"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.

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.

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.

"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.

"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?

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?

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

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.

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.

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.

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?

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 !

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.

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

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

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.

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 |

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

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.

"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.

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

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.

"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.

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

"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.

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

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!

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.

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.

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.

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?

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

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.

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.

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.

So, Chris, what are those 8 cases?

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.

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.

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 doe