Monday, December 26, 2005

The Glass - Half Full or Half Empty

The other day a Democrat pundante was desperately trying to make a claim of his party’s leadership in the now commencing withdrawal of American Troops from Iraq. Fred Barnes, of the “Weekly Standard” gave the perfect retort. “The Democrats wanted to leave Iraq because, as they claimed, “America is losing”. Bush is now ordering withdrawals because America is winning.” This Democrat insistence on seeing only the empty portion of the glass has led the Democrats to endanger their country and make a joke of their politics.

A month ago the Democrats were eager for the United States to lose the War in Iraq. Murtha demanded some sort of withdrawal beyond the horizon. A foolish strategy, that has never won a war. It cost the Nationalists, China and the Spanish, the New World. Had it been put forward by anyone but the “hand picked veteran darling of the left”, it would have been laughed out of the conversation. At the first of December, Pelosi and Kennedy were openly saying the war was lost, the glass had been tipped over, and all that was left for America to do was cut and run.

Then came Presidents Bush’s speeches explaining to the American people the strategy and success in Iraq. Americans saw the “good stuff” in the glass and fixation on the empty portion was washed away as support for the war and the President rebounded.

To those that savor the sweetness of America, it was amusing that even as Kennedy’s empty rhetoric once centered on complaints that Bush was wasting time in Iraq and not concentrating hard enough on the War on Terror that; now, taking their cue from their media masters at the NY Times, the Democrats are indignant that President Bush is doing too much on that front. The entire anti-Bush strategy clings to the hope that the American people will fixate on their empty arguments and ignore the full half of the glass of American accomplishment. It only takes one sip of the truth to bring Americans around to the recognition that below the empty bubbles of Democrat propaganda is a sweet draft of success.

Desperate at the revelation of the hollowness of their dissent, the New York Times has taken over the lead of the “offer nothing party”. Together, the anti-war media and the anti-Bush Democrats are trying to poison the victory cup. Four propaganda blasts in the media followed by frothing gusts or bubbles from the Democrat leadership, attempted to dilute Bush’s success. But, in each case these attack stories in the press have flowed into Bush’s cup. Charges of domestic spying have proven false; a NY Times story on intentional spying on domestic communications proved to be unfounded; an article on the vast trove of intelligence garnered on terrorists by the NSA “mining” of international-to-international calls has proved a support to the successes of the Bush plan; and finally indignation that the government, in an attempt to do its job and seek out nuclear weapons, has been testing the air around suspicious sites, turned to support for a President who is willing to act in the nation’s defense. Thus the gaseous garbage from the left has quickly risen to the surface and popped; leaving nothing in the upper half of the glass.

A friend recently put me on to two articles in the Weekly Standard. They and the daily flow of news clarify the good stuff in the glass. My thanks to her for leading me to answers and helping me to see that our glass is indeed half full.

I have been casting about for a lawyer to explain the Constitutional questions related to President Bush’s efforts to combat terror by listening to the phone conversations of terrorists plotting to attack America. Mackubin Thomas Owens, professor of national security at the Naval War College, provides arguments from no less a lawyer than Abraham Lincoln. (“War and Peace, Lincoln and Bush on Vigilance and Responsibility”, the Weekly Standard, 12/21/2005)

The Albany Democratic convention censured Lincoln for what it called unconstitutional acts. Lincoln replies that certain actions that are unconstitutional in the absence of rebellion or invasion become constitutional when those conditions exist. Let me quote Lincoln’s Corning letter as Owens provided it.

“I can no more be persuaded that the Government can constitutionally take no strong measures in time of rebellion, because it can be shown that the same could not lawfully be taken in time of peace, that I can be persuaded that a particular drug is not good medicine for a sick man, because it can be shown not to be good for a well one. Nor am I able to appreciated the danger apprehended by the meeting [of the New York Democrats] that the American people will, by means of military arrest during the Rebellion, lose the right of Public Discussion, the Liberty of Speech and the press, the Law of Evidence Trial by Jury, and Habeas Corpus, throughout the indefinite peaceful future, which I trust lies before them, any more that I am able to believe that a man could contract so strong an appetite or emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life.”

Owens then argues that, “IN TAKING THE STEPS he believes to be necessary to preserve republican government, it is important to note that the president possesses his own inherent constitutional powers. The presidency is not, as one commentator suggested, merely “a kind of independent agency under the ultimate control of Congress.” The president is the commander-in-chief, which directly bestows upon him powers in times of military crisis that are not derivative of any congressional power.”

Owens not only provides us with a “heavy weight” in the legal arena, he also presents a philosopher of some punch to support the President’s “prerogative”. None less than John Lock argues that “the prerogative is ‘the power [of the executive] to act according to discretion for the public good, without the prescription of the law and sometimes even against it.’ Since the fundamental law that the executive ultimately must implement is to preserve society, it is ‘fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. that as much as may be, all members of society are to be preserved.”

If these arguments from legal and philosophical minds are not enough to revel the emptiness of the anti-Bush portion of the glass, consider the following statutory support from the Foreign Intelligence Surveillance Act, quoted from an article by Edward Morrissely from the December 21 2005 issue of Weekly Standard:

“However, FISA gives wide latitude to the government when such communication does not involve a “U.S. person.” FISA authorizes warrantless surveillance in its opening chapter: (1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writhing under oath that - -

(A) the electronic surveillance is solely directed at - -

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section1802 (a)(1), (2), or (3) of this title; or (ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in sections 1801 (a)(1), (2), or (3) of this title;

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1802 (h) of this title; and if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.


The core of the issue is this: the NSA and the administration defined international communications as including those where one end – and one end only -- occurs in the United States."

Further support came from no less a statesman than former Secretary of State Colin Powell. Speaking on ABC’s “This Week” Powell said that a major controversy could have been avoided had Bush gone to the FISA court, but he sees “absolutely nothing wrong with the president authorizing these kinds of actions” to protect the nation. Powell did add that “My own judgment is that it didn’t seem to me, anyway , that it would have been hard to go get the warrants. And even in the case of emergency, you go and do it.” But although Powell’s equivocation over method explains why we are in a controversy, it does not lessen his support for the legality and necessity of the President’s actions. He adds, “Of course it should continue, and nobody is suggesting that the president shouldn’t do this.”

Anyone who is claiming that the Administration’s efforts are aimed at anything but terrorism is blowing bubbles. There has not been any evidence that the Administration has done anything but seek for legitimate foreign communications that relate directly to national security. There is probably no stronger support for the need of the President’s order than the FACT that, although the Democrat Leadership condemns the President’s actions, they have not called for him to desist from the surveillance he insists he will continue. I imagine Democrats are justly concerned at how it will look if they add their demand that the President stop doing all he can to protect American to Hairy Reid’s recent jubilance at “killing the Patriot Act”. The question, “Whose side are these guys on?” is coming into the minds of more and more citizens. What is important to citizens contemplating the content of the glass is where the substance is; and Bush’s actions are brimful of substance. In his Weekly Standard column, Morrissey continues:

“AND THE PROGRAM PAYED OFF. Information developed during the NSA effort kept al Qaeda from destroying the Brooklyn Bridge in 2003 when Iyman Faris was captured before he could initiate the attack. He pled guilty to terror-related charges and is now serving a long prison sentence.”

Two important points to note: First, by fixation on the empty glass the Times and its lackeys in the Democrat Party leadership are endangering America’s defense against terrorist attack, and secondly, by harping on the empty part of the glass, the Democrats are in dangerous political territory. Their efforts to destroy Bush in order to garner seats in the 2006 election has left them fighting for a position that consists of exactly nothing. In the glass that contains the heady brew that is American Success and its challenge in the war on terror, Democrats are fixated on the nothing that floats above. The Democrats have offered nothing to replace either the sweet taste of victory or the bitter dregs of disaster. The cup the President holds is not all sweetness and buzz, but the portion the Democrats offer is the nothing at all.

33 comments:

Dan Simpson said...

My holiday hiatus being done, let me try to explain my position.

I enjoyed this post, and it even gives me a good groundwork to point to what I believe are the lingering questions/problems.

1. To Lincoln's point. As has been pointed out by my opposition in this whole argument, this is a different kind of war. It is not open rebellion by a large (geographically and population wise) segment of the country. It is not an enemy that one may say, it is them, and identify who the military needs to target (at least not in this country.)

I am sure that you would not support the notion of military occupation of U.S. cities that there were identifiable splinter cell organizations. It just wouldn't work in the same way occupying the South did during the war.

2. It is true that the President's power does not derive from congress. It derives from the Constitution, and so far, even the best arguments I have seen, that are grounded in law, bring this to an open question, not a conclusion.

3. Unfortunately for this argument, Locke is not the end, but the beginning. His philosophy helped shape, but did not polish off our Constitution. I would say that the Constitution does not agree with the statement made by Locke, and so in any disagreement the Constitution trumps any man, no matter how learned, as to what people can do in positions of power.

4. "B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party"

This is the crux of my problem. This specifically states that the portions of FISA which you use to justify the actions of the President do not apply when used on citizens of the U.S.

So, if the wiretapping was used to listen in on the conversations of citizens, then my reading of FISA leads me to believe the president needs a warrant. If, on the other hand, the wiretapping is used solely on individuals (inside or outside the U.S) who are not citizens, then this specifically tells us the President has such authority.

Calling a citizen the enemy because his name or phone number are found in a PDA in Afghanistan is not sufficient to strip him of his citizenship or the rights inherent therein. Do I think that individual should be listened to, absolutely. Do I think that heavy surveillance of all kinds should be directed at them, without a doubt.

Luckily for us as citzens of this country, we have an entire system set up whereby these individuals CAN be listened to, investigated, wiretapped, watched, and completely surrounded with safeguards, and the FISA court can supply the warrants to do it.

No one has given one argument as to why the President could not use these courts. And from my reading of all of the cases that have been put forth on this blog, and in other places the only things that seem to be settled legal questions are.

-The President has the inherent authority to use electronic survellience to gain foreign intelligence without a warrant against foreing powers.

-Citizens may be searched without warrants in certain specific circumstances.

-The court has never answered the question as to whether the President may wiretap, or use other electronic surveillance means, to gain foreign intelligence when the target is a U.S. citizen without a warrant.

-The language of the statute implies that he may not.

Now, to go beyond the legal argument. You may say that you want the President to be able to do a thing. You may say it is good, helpful, or even vital to our country. All of these are valid arguments and can stir very interesting and important debate.

However, wanting the President to have a power, and the President having a power are two different things.

It may be that at the end of the day, the Courts will decide that the President does have that power as a subsidiary of specifically enumerated powers from the Constitution, I don't think so, but then I am not on the Supreme Court, so my opinion does not make case law.

I do not believe the question is settled, nor is it clear.

Lysis said...

Dannyboy, thanks for the time, the points, and the ground work.

On #1 – the “type of war we are fighting.” I agree with you; this war is not like any other we have fought in the past. Neither I nor the President are calling for the occupation of U.S. cities, only for the necessary power to listen in on the plans of terrorists plotting to destroy them. While I am not for the military occupation of American cities, I am for the military protection of those cities. The key here is that I support the military fighting foreign enemies, their “sleeper cells”, and their domestic hit squads with the military over which the President presides as Commander-in-Chief. As Commander-in-Chief, President Bush is acting under the Constitution when he ignores FISA and take the fight directly through the FSA, operative word being “F”, to the enemy. I argue that in cases of foreign war the powers you claim for the FISA courts are unconstitutional. I believe the Supreme Court has already agreed with me.

On #2 – On a strictly philosophical note, I would argue that the President’s power does not derive from the Constitution, but from the consent of the governed and from the natural laws referenced in the Declaration of Independence upon which all governments are based. Having said this, I argue that the separation of powers created in the constitution places war in the executive’s prerogative and gives the President power to fight our enemies without superseding authority from the other two branches. What I am arguing here is that the Constitution kicks out FISI or any other statute that might interfere with the Presidents power in fighting this war. As this is a different kind of war, it would be foolish for the Congress, particularly a hostile political party invested in the President’s failure, to be allowed to claim power to control the prosecution of the war. Check out Nixon’s complaint of Congressional interference in Vietnam. I remember that mess, we don’t want to go there again. I am encouraged that you, Dannyboy, would at least leave this argument open to question. And I agree with you that our discovery of answers here in the Agora will be vindicated or condemned in courts far more binding.

On #3 – You are of course right about Locks authority, however, as I argued above, the Constitution, an admittedly fault filled document with an imbedded process for amendment, does not trump natural law, or common sense.

On #4 - The FISA provision that a United States person must be a party. Case law sighted in the previous post, as well a Supreme Court Ruling specifically incorporate language that exempts National Security, and Foreign intelligence. To argue that conversations with a know Al Qaeda operatives is anything else than a national security concern and war is not reasonable.

I agree with your positions that, “if the wiretapping solely on individuals (inside or outside the U.S.) who are not citizens, then this specifically tells us the President has such authority.” I further argue that this is what the “FISA law” allows. That same FISA legislation includes language that says the congress can give the President statutory power to ignore FISA. The President, the Attorney General, and many others join me in arguing that the War Powers granted the President by Congress to fight those who carried out the 9/11 attack, any were, any how, superseded the need to approach the court for warrants.

The arguments that I give that the President “could or should” not have to use the FISA courts are these:

1. His direct constitutional authority, which neither other branch has power to involve themselves in, allows the President the powers to fight wars as he, as Commander-in-Chief, sees fit.

2. The President followed strict rules in complying with the wishes of the FISA court and the Congress in implementing these wire taps. All have involved non-citizens, or at least people who have a “Substantial likelihood” of being non-citizens.

3. The FISA legislation has specific exemptions written into it which allow the President, under Congressional direction (the Congressional authorization of the President to use force), to ignore the existence of the court.


Now I ask you: Do you want terrorist cells which could not operate in foreign nations to find safe haven in the United States; where they shelter under the very laws they intend to destroy. Their arguments, along with Saddam’s, that he is not subject to laws he himself does not approve, are contrary to common sense and to the natural Law that is the foundational to all just Constitutions.

Dan Simpson said...

A few clarifications of my points.

1. I know the language in the FISA legislation that allows it to be circumvented under act of congress. From the surrounding language of the Act, I do not believe it pertains to citizens.

2. I strongly disagree with what it sounds like you are saying. I do not believe the president has unchecked authority during time of war. The constitution reigns in his power, and Supreme Court cases throughout our history do as well.

3. The constitution is the embodiment of the 'consent of the governened'. If the governed want to change something, there are modes in place to do such a thing. Whims, polls, changes of mind, all these are inadequate to bestow power on a president that either doesn't exist in the document, or is specifically prohibited. Even if 99% of the country said, "We want the president to be able to do X". If 'X' was against the law, they would still have to go through the proper channels to amend the constitution.

This applies even if 'X' is according to Natural Law, or common sense. In our country, the constitution, until amended, trumps everything.

On your #4, I believe you have that exactly backwards. FISA specifically removes those allowances for citizens.

There are some cases that talk about foreign intelligence, but it is unclear whether or not they include citizens, or merely foreign parties.

I would like the backing for your #2 about them being all non-citizens. I have never read, or heard anything that would even suggest that.

Of course I don't want terrorist cells here. But here is your biggest mistake. Our laws, as I argue that they are, would not allow that.

FISA has protections in place which allow the government to do EXACTLY what Bush did.

I don't understand how you can argue that my standpoint would allow more terrorists. The exact same actions could be taken as has been, but with following the proper channels.

Reach Upward said...

What a wonderful debate. It is important that these issues be clearly and publicly debated and resolved. We should be properly concerned about infringing on the rights of the individual. However, the overriding principle is that these rights can only exist in a secure nation.

We cannot allow individual rights to override national security needs. The needs of the whole trump the needs of the one in this instance. Still, it is important that tools used to secure the nation stop short of *improperly* treading on individual rights.

I think this is the crux of the debate. Our founders saw this early on and established a three-way constant tug-of-war to maintain a proper focus. We must be careful to maintain proper tension by all three branches of government to make it work properly.

Lysis said...
This comment has been removed by a blog administrator.
Lysis said...

Dannyboy, thanks for the response and the clarification. I will attempt to do the same. To your points first:

On point #1 – Quoting John Schmidt, former associate attorney general of the United States, “FISA contains a provision making it illegal to “engage in electronic surveillance under color of law except as authorized by statute.” So even if these wiretaps fall within the definition protected by the surrounding language of the act concerning “electronic surveillance” , the “authorized by statute [provision] ” is satisfied by congressional passage of the post-Sept 11 resolution giving the president authority to “use all necessary and appropriate force.” to prevent those responsible for Sept 11 from carting out further attacks.”

On point #2 – I did not intend to imply the President has unchecked authority during time of war, only, as I said, to conduct that war as its Commander-in-Chief without the recourse to the FISA court.

On Point #3 – I agree that the Constitution of any nation SHOULD be the embodiment of the “consent of the governed” but it never is. Constitutions are not inherently correct. The Declaration of Independence demonstrates that a Constitution can become destructive of natural rights – and then it is the right and duty of the people to overthrow or amend it. I agree with the founders that such action should NOT be taken lightly. I am not suggesting that our Constitution needs to be overthrown if it disagrees with either the President or me. I “tag lined” this comment by saying, “On a strictly philosophical note.” I continue to insist that the Constitution is not sacred – nor does it take precedents over common sense or Natural Law. Point:

In our country – if 99% of the people said we want the president to be able to do X, guess what – that would become part of the constitution. At least that’s how I understand the amendment process. If X is according to Natural Law and common sense and the constitution disagrees with it, (example; classifying black people as property) tyrants may well force compliance, but it would still be wrong! I further sight the 2,700+ babies that will die today by some interpretations of the Constitution! It’s just wrong!!! But these are philosophical arguments meant to illuminate but not decide the FSA controversy. They are not necessary there. The actions of the NSA are justified under the Constitution without amendment.

To my point #4 – You’re the one who has it backwards here: I continue to reference John Schmidt: “In the Supreme Court’s 1972 Keith decision. . . “the court said explicitly that it was not questioning the president’s authority to take such actions [wiretapping without warrants] in response to threats from abroad.” I (Lysis) maintain that Al Qaeda communications, even with persons within the U.S. who may or may not be citizens, is a response to threats from abroad. To the same point, and from the same source – the Foreign Intelligence Surveillance Court of Review said, in 2002 that “All the . . . courts to have decided the issue held that the president did have inherent authority to conduct warrantless searchers to obtain foreign intelligence . . . We take for granted that the president does have that authority.” Calls from foreign terrorists to persons in the United States are the divination of “foreign intelligence”.

And on my point #2 – the purpose of the NSA wiretaps are to intercept foreign enemies of the United States attempting to plan acts of war against our country. I have not seen or read anything to suggest that there a “Substantial likelihood” that they are citizens.” Most Al Queda operatives are not citizens or even legal resident aliens. Some are on Student visas – which does not protect them! Therefore the President is within both the letter and the spirit of the law!

The President could have taken the same action he did without consulting those of us here in the Agora, and he had no more obligation to take the FSA actions to us that he did to take them to the FISA.


Reach – Glad you're still with us. I agree with you. I see the operative words here as Separation and Balance of Power. When the Balance of Power shifted to far into the hands of the Congress we deserted the fight in Vietnam. The question which we should be asking is, “has this wiretapping approved by the President actually brought the dire consequences to civil liberties which his enemies imply?” The politics of the attack on the President blurs the lines for all; for those who seek power through his failure, for those who have accepted and now want to support his policies, and sadly for the vast majority of our countrymen who are blown to and fro by every propaganda blast.

Reach Upward said...

I'm not in the legal profession like dannyboy2, so it's difficult to gainsay his arguments. Still, I find Lysis' arguments compelling.

When I want to discover whether I'm being objective about matters of this nature, I ask myself whether I would think it was a problem if it had been done by the Clinton administration. In this instance, I conclude that I would think it was OK. In fact, I think it would have been wonderful if the Clinton administration had been doing this all along. Maybe 9/11 would have been circumvented.

Another Weekly Standard article by David Tell argues that there is a very good reason the Bush administration didn't go to the FISA Court: "Because that would have been insane, that's why." Tell goes on to explain the problematic philosophy that has become institutionalized in that court. The Clinton administration's now-infamous "wall" that prohibited sharing information with law enforcement and that permitted terrorism cells to grow unchecked has still not been remedied in that court's philosophy.

That's not a good legal argument, and we are a nation of laws. Still, for our laws to exist we must have national security.

supersonic said...

Thank you for your welcome to the agora lysis. I hope you are having a good holiday season.

I find this "new" war idea a strong one. when a civilition is introduced to a new thing it must adapt to it.

The democrats are crazy to say we should pull out now. I haven't had to chance to see who all are saying america wants this but thats ridiculous.

Yes we want to leave iraq. Some if not many think we shouldn't be in there in the first place.

But now that we actually show progress in iraq... (see pres. bush's speeches last week) we shouldn't pull out now. Many may think that the war was a bad idea and I myself had doubts and still do if entering the war when we did was a good choice.

But look at the freedom beginning to grow. Look at the elections, the police force. Democracy is forming.

Terrorism is fighting against us... well yeah... we are in a war. Lets not cower out because bad guys are bombing us.

But back on topic...

there seems to be a lot of confusion on who are being spied upon. Lysis supplied evidence to show that it was suspected terrorists and not american citzens, anomuyus says otherwise and I haven't seen the evidence to back it up. I'd like to see it.

I still haven't seen a reason for why warrants weren't sought for. Or, if they were then why were they not given. This may have been said in eariler debate but my time is short and I tried to read fast.

Thank you for such a warm welcome into the agora

Rumpole said...

Anonymous,

I’m sorry it has taken a while to respond! I’ve been enjoy the Christmas Season with my kids. You probably are doing the same. I hope it has been a grand holiday season for you.

As to your questions about my “Pearl Harbor File” you are absolutely correct! It is pure speculation. I thought I had said that I was only speculating, but right now I’m too lazy to go back and look. If not, I apologize. I have no way of knowing Rockefeller’s motives in both hiding and in revealing (and yes, if I may speculate again, the motives in each instance may be different) his letter.

As I have said before (though I refuse to rule out any possibility), I am not a conspiracy theorist. I don’t think there is any conspiracy involved here other than Rockefeller’s desire to make himself the hero at the expense of the President.

Your comment, however, that you think I live in “a bizzaro world” leads me to believe that you must work in Academia. I mean no disrespect by that comment. Allow me some license to generalize, for I do not know you personally and acknowledge that I certainly may be wrong. It has, however, been my experience that most academicians live in a world of utopian theory rather than practical application.

In the working world of practical application that I am part of these files are kept all the time. Bosses keep them (under the name of “personnel files”) to spring on unsuspecting employees when they want to legally get rid of them. Employees keep them (under the name of “Pearl Harbor files”) for a variety of reasons, whether they are legitimate or not.

In the world of Washington politics I would speculate that this type of file is the rule rather than the exception on both sides. I don’t view that as cynical, and I don’t view it as a conspiracy. I view it as realistic.


DannyBoy,

Many of your comments lead me to believe that in your view the current topic as an issue that ought to be decided in the courts. For example:

“No one has given one argument as to why the President could not use these (FISA) courts.”

“It may be at the end of the day, the Courts will decide that the President does have that power as a subsidiary of specifically enumerated powers from the Constitution . . .”

You have also commented:

“It is true that the President's power does not derive from Congress. It derives from the Constitution . . .”

This seems inconsistent to me. If the President is correct (and I think he is), the Courts have no right to rule on the actions we have discussed. The Constitution has granted that power and it is not up to the Courts to decide. James Madison, in the his “Federalist No. 51” said:

“But the great security against a gradual concentration of the several powers in the same department (branch of government – added), consists in giving to those who administer each department, the necessary Constitutional means, and personal motives, to resist encroachment of the others.” (end of quote)

In my estimation the idea that the Courts will ultimately decide the NSA issue is its own form of “judicial activism.” I speculate here (for you, Anonymous), but it seems to me that over the last 40 years we have been led to believe that the Courts have the final say on all matters. I don’t believe that. As you said “the President’s power . . . derives from the Constitution”. His power DOES NOT derive from the Court!

Further, I would suggest to you that the Constitution does grant the power to the President to conduct his NSA operation. The following is from Alexander Hamilton in “Federalist No. 74":

The President of the United States is to be ‘Commander in Chief of the army and navy of the United States, and the militia of the several States when called into the actual service of the United States.’ The propriety of this provision is so evident in itself; and it is at the same time so consonant to the precedents of the State constitutions in general , that little need be said to explain or enforce it. Even those of them, which have in other respects coupled the Chief Magistrate with a Council, have for the most part concentred the military authority in him alone.
Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which DISTINGUISH THE EXERCISE OF POWER BY A SINGLE HAND (caps added). The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms an usual and essential part in the definition of the executive authority.

‘The President MAY (caps added) 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. (Article Two, Section Two – added)’

This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.” (end of quote)

Again, I can only speculate, but if it comes to this, the Constitutional answer would be for the Court to recognize the very document (the Constitution itself) that empowers it and refuse to hear arguments about the issue. The Supreme Court does not have the authority!

What would be an abuse of this power by President Bush? Monitoring conversations that have nothing to do with the War on Terror. I don’t think he has done that.

As for the FISA Court, I think it is irrelevant. Based on what Hamilton said in No. 74, I think he would agree.

Lysis said...

Supersonic, thanks for coming along. May I suggest that we have a Constitution that is capable of allowing the President to act in new ways for new wars? This can be done without jeopardizing the civil rights of Americans. As the types of wars evolve so does the technology and methods needed to combat them. Rumpole has posted above; we give this terrible and necessary power to one man because that is the way that works best.

I am confident that no one wants the U. S. to leave Iraq more that President Bush. Iraq is an important part of a much larger war; accomplishing the mission there will not end the struggle. President Bush has explained that to the nation from the first days of this conflict.

Finally, Supersonic, I join you in calling for anyone out there to give evidence of wiretapping of American citizens. This will not change the rectitude of the Presidents instructions to the FSA, but it would at least give some justification the snit the liberals seem to be in.

Reach Upward, I think your David Tell article goes beyond the legal wrangling to the commonsense approach to national security that WE THE PEOPLE have long demanded of the government we have established.

Rumpole - great stuff; Imagine going to the writers of the Constitution to get some understanding of the separation of powers that document attempts to establish. I have long wondered at the ever growing and all-to-often self proclaimed authority of the Judiciary. It is interesting to remember that it was only a few weeks ago the President’s enemies were claiming that the Judiciary that Bush was crafting would have too much power. Seems the only power these naysayers seek to justify is their own.

Dan Simpson said...

"necessary and appropriate force"

This is an incredibly vague statement, there is no way to know the bounds that this phrase sets. With one exception, it does not allow the President to unilaterally take away the rights ensured by the Bill of Rights.

Now, we must understand that the debate on my side is dependent on there having been citizens wiretapped. I, unlike anonymous, will not claim to know that they have, and if they hadn't none of my arguments even apply.

The courts are there to hear any 'case or controversy' arising out of a constitutional question. That is their power as instilled by the constitution.

The major problem here is that there is really no one to take this case to the Supreme Court. Unless a citizen were tried with information obtained using a warrantless wiretap, there is no one with standing to take this case to the Supreme Court.

The powers dileneated to each of the branches of government come from the constitution, this does not mean that each will not overlap at times. Look to the simple face of each group.

The president nominates Judiciary, the congress okays judiciary. The Judiciary rules no the constitutionality of legislation by the congress and action by the executive.

The question isn't the Court's ability to rule on the matter, but the ability to even bring the case.

If the court had no power to rule on any of this then how would we have the case law that Lysis uses to back up his arguments. Or how would we have gotten the second worst case decision of the 20th century that allowed U.S. citizens to be put in concentration camps in Utah's west desert.

supersonic said...

Dannyboy, I enjoy reading your arguement. It is a very good one. If wire tapping was going on to American Citzens then your arguement stands completely.

This again goes back on the "who was tapped arguement".

Lysis brings home the arguement that the new war needs new tactics. This war is a war on terror. Which is war mostly made on intelligence. Think about this... The only way we stop the next 9-11 is knowing about it before hand. This is an intelligence battle. Where are they? Whats the next target, and how? All of these questioned need to be answered before the fact it even happens.

Now I don't know how serious the threat was. I hope it would be severe, tapping anything without a warrant...

But I think President Bush is there trying to do what is best. The real question is does everyone else think what he's done is.

I personally don't know yet. I think so but tapping without warrants still makes me wonder.

Lysis said...
This comment has been removed by a blog administrator.
Lysis said...

Dannyboy and company, some things to consider: I was listening to some comments today by UVA Law Professor Robert Turner. He seemed to agree with Dannyboy, that if the NSA had been listening to American Citizens there was arguably a case that the President had violated the 1978 statute. However Turner then went on to claim that the 78 statute was over ruled on two counts.

First the 9/11 Resolution has exempted the Presidents national security powers; together with the 9/11 commission report, there has been a call to tear down the walls the FISC restrictions had erected.

More importantly Turner argued that the 1978 statute is unconstitutional. He pointed out that every President since its passage has refused to recognize its control over the President’s national defense powers. According to Turner, the Framers of the Constitution recognized that neither Congress nor the Courts can keep secrets. [It was interested to me that this was a point Herodotus brought out in his “debate on government”] Neither the courts nor the Congress was given any intelligence role by the Constitution, according to Turner. He argues that the 78 statute, setting up the FISC, was an unconstitutional usurpation of Presidential powers given by the people to him to stop attacks on the American People. Turner stresses that A STATUTE OF CONGRESS CANNOT AMEND THE CONSTITUTUON!

Dannyboy – It didn’t take defense attorneys long to pick up on your suggestion and call for reversal of convictions against confessed terrorists. It seems there will be plenty of chances for the courts to rule on the Presidents actions. When they do, they will probably consider the arguments presented by a former Reagan Justice Department official, Lee Casey. Casey unequivocally states that the FISC has itself ruled that he President has the power to conduce warrantless searches for foreign intelligence purposes, over seas. This is what these wire taps were; they were not part of a domestic criminal investigation. They are therefore legal even if American Citizens were involved.

Dannyboy – and lawyers in general: Is this a legitimate argument? That the NSA wiretaps are strictly to do with foreign intelligence, and since they are not criminal investigations, they fall entirely under the Presidents Constitutional power.

Supersonic, perhaps this is a case of a “New War” requiring old tactics. The tactics allowed to the President under the Constitution, and supported by legislative and judicial deference to Presidential power.

I feel strongly, as I posted in the original log above – that the Democrats assault this power at their peril. Won’t it be fun to see the Democrats attacking the Constitution along with the President? They have already risen up in defense of confessed terrorist. They may well have to take responsibility for enabling attacks against America. If it weren’t for the terrible cost in human life and the disastrous effects on our country; I would encourage the neo-libs to follow this path into oblivion.

Rumpole said...

DannyBoy,

As to your post I will try to respond to each point, in my own order, as follows:

Though Article III of the Constitution does allow hearing any “case or controversy”, it does not expressly provide for “judicial review”. Judicial review is not provided for anywhere in the Constitution. John Marshall invented the concept in “Marbury vs. Madison”

After the “Marbury” decision, Thomas Jefferson wrote to Abigail Adams, as follows:

“The Constitution . . . meant that its coordinate branches should be checks on each other. But the OPINION (caps added) which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

The Supreme Court’s ability (and power) to such matters has been self-created. Jefferson was prophetic in a letter to William Jarvis:

“The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

As I have suggested before with quotes from both Madison and Jefferson, the branches of government were designed to be “co-equal and co-sovereign (see above).” I recognize that there is overlap! “Judicial Review” tipped the scales. By accepting that concept we give the Supreme Court the final word! It is a mistake, and it is NOT in the Constitution!

As to whether or not citizens are being wiretapped, I would respectfully suggest that as being the wrong question. I as suggested in my last post, the President has the authority and the responsibility to protect the Bill of Rights. Both Lincoln (see Lysis’ original topic) and Hamilton agree that the President has the unilateral authority and unilateral responsibility to do so. Even if citizens are involved! FISA is irrelevant! The Supreme Court has a self-created review system!

If we want to criticize the President, then the question ought to be “why”, not who. The “why”, meaning, what is the motive for the tap? Is it to protect the Bill of Rights, and hence the security of the Nation in a time of war? Or is it for any other reason? If for any other reason rather than war the President has overstepped his authority. If not, then his is fulfilling his responsibility.

Finally, what is “necessary and appropriate” force? The President has the authority to act as “Commander and Chief.” We are fortunate that he has been willing to use it. He understands the nature of this enemy. As I have said before, there are far too many people who do not. This enemy will stop at nothing to destroy us.

We must adapt to the tactics of this new war. Forgive my weak memory and butchering of history, but I remember the following discussion as a lad in American History. The British refused to adapt to the Colonies tactic of guerilla warfare, one of a couple of decisions that cost them victory in the revolutionary war. If we refuse to adapt to the tactics of our current enemies for nothing more than a political power grab our lot will be the same!

Rumpole said...

Lysis,

As to your well-articulated point that defense attorney's have called for the reversal of convictions of terrorists:

We have allowed the terrorists to use our own planes against us. Will we allow them to use our own legal system against us. too?

colton said...

hello, Lysis and Dan.
colton mcbride from camp and from the ward, how are the both of you?

i wish i could make a more intelligent comment, but right now the only thing i care enough to understand and disagree with is that John Locke has an "e" at the end of his name, and im not a big fan of that guy's works.

Lysis said...

Colton, thanks for the help with the spelling. I can use all the help I can get. You, on the other hand, might check out a little capitalization review. But anyway, thanks for reading. I’ve always liked Locke; maybe you could give us your critique.

Lysis said...

Rumpole – I can imagine some questioning your position. In fact I was a little shaken by it myself. You seem to be questioning of the power of the courts to review the Constitutionality of laws enacted by the Legislative Branch.

I do see some grounds for your concern. This power has proven harmful to the nation on occasion; Roe – v – Wade being the most obvious! However, one must also admit that the power of the Federal Court to restrain state legislatures and of the Supreme Court to defend Constitutional Rights from the caprice of Congress; has been a positive force in our “national experiment”. The example of Brown – v – Board of Education is worthy of consideration.

You might think I am attacking your apparent position; that Judicial Review is more of a deeply held tradition that a constitutional power. My purpose is just the opposite. I Accept it and suggest that the “traditional” power of the court to review laws is no more extra Constitutional than the President similar “traditional” power to act as he deems necessary in time of war to defend the people of the United States.

Rumpole said...

Lysis,

You raise an interesting issue. Who is to decide as the “court of last resort”? Marshall foresaw the same issue in the Marbury decision (any caps have been added):

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

If then the courts are to regard the constitution; and the CONSTITUTION IS SUPERIOR TO ANY ORDINARY ACT OF THE LEGISLATURE; THE CONSTITUTION, and not such ordinary act, MUST GOVERN THE CASE to which they both apply.

THOSE THEN WHO CONTROVERT THE PRINCIPLE THAT THE CONSTITUTION IS TO BE CONSIDERED, IN COURT, AS A PARAMOUNT LAW, ARE REDUCED TO THE NECESSITY OF MAINTAINING THAT COURTS MUST CLOSE THEIR EYES ON THE CONSTITUTION, AND SEE ONLY THE LAW.

THIS DOCTRINE WOULD SUBVERT THE VERY FOUNDATION OF ALL WRITTEN CONSTITUTIONS. It would declare that an act, which, according to the principles and theory of our government, is entirely void; is yet, in practice, completely obligatory. IT WOULD DECLARE, THAT IF THE LEGISLATURE SHALL DO WHAT IS EXPRESSLY FORBIDDEN, SUCH ACT, NOTWITHSTANDING THE EXPRESS PROHIBITION, IS IN REALITY EFFECTUAL. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.” (end of quote)

It makes perfect sense. Except that it eliminates the concept of EQUAL branches of government. Further, what if the Supreme Court rules as Marshall suggested the Legislature had, and commit “WHAT IS EXPRESSLY FORBIDDEN, SUCH (RULING), NOTWITHSTANDING THE EXPRESS PROHIBITION, IS IN REALITY EFFECTUAL.” Where is the check? It would, in effect, "GIVE THE (JUDICIAL)A PRACTICAL AND REAL OMNIPOTENCE." Thomas Jefferson said (DCBA.org):

“Our Country has thought it proper to distribute the powers of its government among three EQUAL AND INDEPENDENT authorities, constituting each a check on one or both of the others, in all attempts to impair its constitution. To make each an effectual check, it must have a right in cases which arise within the line of its proper functions, where equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment, and uncontrolled by the opinions of any other department. We have accordingly, in more than one instance, seen the opinions of different departments in opposition to each other, and no ill ensue.” (end of quote).

My struggle is not that the Judiciary can act as a check to the Executive and Legislative; my struggle is that the JUDICIARY ALONE GOES UNCHECKED.

Finally, as to the “traditional” power of the President to act as he deems necessary in time of war, another excerpt from “Federalist No. 64 – John Jay”:

“It seldom happens in the negotiation of treaties of whatever nature, but that perfect secrecy and immediate dispatch are sometimes requisite. There are cases where the most useful intelligence may be obtained, if the persons possessing it can be relieved from apprehensions of discovery. Those apprehensions will operate on those persons whether they are actuated by mercenary or friendly motives, and there doubtless are many of both descriptions, who would rely on the secrecy of the President, but who would not confide in that of the Senate, and still less in that of a large popular assembly. The convention have done well therefore in so disposing of the power of making treaties, that although the President must in forming them act by the advice and consent of the Senate, yet he will be able to manage the business of intelligence in such manner as prudence may suggest.” (end of quote)

Is it not reasonable that this would apply, in general, as “Commander-In-Chief”?

Lysis said...

Rumpole at all, isn’t it somewhat wonderful that all these issues which, some days ago, we thought so unique to our circumstance and conflict, have all been discussed and defended before? Perhaps this is the wonder of common law and common sense. I detect a little universal Truth at work here.

It is also interesting that today the Justice Department has announced a determination to look into the leaking of top secret information to the NY Times. It will be interesting to listen to the neo-libs this time around. I remember quite clearly calling for Scoter Libby to go to jail if he had broken a law. Can I have a similar call from the anti-Bush league? When it proved Libby had not broken any law; the neo-libs still continued to bay for his blood and that of Carl Rove and Dick Cheney. I am eager to hear if the various Anonomy will come forth now to demand the arrest and incarceration of those who have truly broken a law and truly damaged America’s war effort. It might be a worth while project to cull through the op-ed columns of the NY Times and review their pontifications on the unparallel evil of leaking secret information for political reasons.

Dan Simpson said...

I wonder Rumpole, if the courts were not able to declare a given law unconstitutional, what would be the check on the Legislature.

You see, I believe you are completely missing the boat on this one.

If someone is arrested, and being tried according to the laws of the land, and he argues that those laws go against the constitution, how will his case be heard.

If it goes all the way to the supreme court, it seems by your argument that the SC would be powerless, they would merely have to rule according to the laws on the books.

I am a great respector of John Marshall. He made an incredibly deft and disciplined decision in the Marbury v. Madison case. He laid out all of the reasons why the one party should win, and then in the end said, "But this is outside the Courts jurisdiction. This is an executive matter that we cannot rule on." (not a direct quote, but it goes to the heart of the ruling).

If the Court could not rule on the constitutionality of laws there would be no check, as each and every piece of legislation would have the same importance and deferrence paid it as the Constitution itself.

The term, "Judicial review" is indeed not found in the Constitution, but to not allow the S.C. to rule on the constitutionality of statutes in controversy would be to strip it of all power, and make it an ineffectual and useless organization.

There are checks on the Judiciary. They must go through the approval process (a process neither other branch must go through). They can be removed from office. And they have absolutely no enforcement capabilities.

And the ultimate check, we the people can amend the constitution if we disagree with how it is interpreted.

Rumpole said...

DannyBoy,

I apologize that this post will be somewhat redundant; however, I think I have already addressed many of the questions you raise. I have not suggested that the Supreme Court should not be able to declare a law passed by the Legislature unconstitutional. “My struggle is not that the Judiciary can act as a check to the Executive and Legislative; my struggle is that the JUDICIARY ALONE GOES UNCHECKED.”

I am familiar with the “pre-emptive” checks that are placed upon the Judiciary. My issue is that when the Judiciary is turned to in the end as the ultimate authority in reference to any action from either of the other branches it WIELDS THE POWER in the government. The opinions of the other two branches are rendered meaningless.

It seems to me that the underlying assumptions that support “judicial review” as the ultimate authority for determining Constitutionality of an issue are twofold. First, we forced to assume that the Court will do the right thing. Second, we assume that the other two branches are incapable of making that determination themselves. On the latter, I repeat what Jefferson said. Maybe he was “completely missing the boat on this one, too.”

“The Constitution . . . meant that its coordinate branches should be checks on each other. But the OPINION (caps added) which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

On the former I would offer that “Judicial Review” works well as long as the Judiciary rules according to the Constitution. Do they? ARE THEY? Again, here is another redundant quote from Jefferson. Is he “missing the boat” here, too?

“The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

In Lawrence vs. Texas Justice Anthony Kennedy rendered the majority opinion, signed by four other Justices, citing foreign legal precedent. The majority of the Court desired to cite foreign precedent! Can I offer a quote here from Justice Scalia? This is from a debate with Justice Breyer on January 13, 2005:

“I don't know what it means to express confidence that judges will do what they ought to do, after having read the foreign law. My problem is I don't know what they ought to do. What is it that they ought to do? You have to ask yourselves, Why is it that foreign law would be relevant to what an American judge does when he interprets – INTERPREST, NOT WRITES (CAPS added)-- I mean, the Founders used a lot of foreign law. If you read the Federalist Papers, it's full of discussions of the Swiss system, German system. It's full of that. It is very useful in devising a constitution. But why is it useful in interpreting one?

Now, my theory of what I do when I interpret the American Constitution is I try to understand what it meant, what was understood by the society to mean when it was adopted. And I don't think it changes since then.

Now, obviously if you have that philosophy -- which, by the way, used to be orthodoxy until about 60 years ago -- every judge would tell you that's what we do. If you have that philosophy, obviously foreign law is irrelevant with one exception: Old English law, because phrases like "due process," the "right of confrontation" and things of that sort were all taken from English law. So the reality is I use foreign law more than anybody on the Court. But it's all old English law.

All right, if you have that theory, you can understand why foreign law is irrelevant. So he will never convert me.

Further, Scalia said in his dissent to Lawrence vs. Texas

"The views of other nations, however enlightened the justices of this court may think them to be, cannot be imposed upon Americans through the Constitution."

So now we determine the “Constitutionality” of our law based on foreign precedent? Does that mean the law in question is really constitutional or does it mean that the law doesn’t fit with foreign precedent? What recourse do we have? Do we amend the Constitution so foreign precedent can be cited again to rule contrary to the “amended” clause? Do we now remove a majority of the Justices? In their lifetime appointment what crime have they committed?

I stand with Jefferson. Give me a better resource to change my view. Don’t bother with Ginsburg or Breyer!

I’ve gone on too long now, so I’m going to stop. I agree that Marshall’s opinion was brilliant, but not for the same reasons you do. We can save that for another day.

Lysis said...

Rumpole, Dannyboy and all, it is somewhat gratifying to see that arguments concerning President Bush’s secret and non warranted wire taps seem to have been resolved in the President’s favor; at least here in the Agora.

The power of the judiciary is indeed worth considering in light of the upcoming conformation hearings for the Supreme Court and in the face of legal challenges by lawyers representing convicted terrorists. The ACLU, long the club of the left, has launched suits against the President. The judicial branch is the only one were Democrats still have a power base. Marshaling it in the service of their political ambitions, and now in the behest of foreign terrorists, may lead them back into power or it may lead to even stronger showings for the Republicans in 2006. That decision seems to rest in the hands of the people. It is obvious that the main stream media has already thrown in with the Democrat camp. We will now see if the “new media” and the common sense of the American people will be able to stave off the assault. These surprising and seemingly effective new forces in American Politics have debunked the FSA attack and rejuvenated the President’s pole numbers. Hope springs eternal.

Dan Simpson said...

Rumpole, Dannyboy and all, it is somewhat gratifying to see that arguments concerning President Bush’s secret and non warranted wire taps seem to have been resolved in the President’s favor

Not hardly.

Lysis said...

Yes, hardly: You can hardly argue with Rumpole that the Judiciary is entitled to extra-constitutional powers based on their long tradition or judicial review and deny the President his long established traditional power to be independent in national security actions on the international front.

The lesson taught by both these “powers”: they point out the importance of the People electing the right person as President. It is the President that appoints these afterward independent justices, and the President who must be trusted to use his power to protect our nation and our rights!

Dannyboy, if you can argue otherwise, please do.

Lysis said...

This morning’s (Jan. 1, 06)the Ogden Standard-Examiner has a letter to the editor by a Robert Van Velkinburgh of Syracuse, Ut. Van V’s stretches to equate Bush to Nixon and revels the desperation of those who are still attempting to concoct some negative impact of President Bush’s FSA authorization.

Van V quotes an excerpt from the Article of Impeachment in the case of Richard Nixon: Article 2 section 2 accuses Nixon in these words, “He misused the Federal Bureau of Investigation, the Secret Service and other executive personnel, in violation or disregard of the constitutional rights of citizens, by directing or authorizing such agencies or personnel to conduct or continue electronic surveillance or other investigations for pourposes unrelated to national security . . .”

I am forced to conclude that, either VanVelkinburgh, and those who maintain support for his position, cannot see that fighting Al Qaeda terrorists is RELATED TO NATIONAL SECURITY!!!!!!, or they think the rest of us are so stupid that we can’t see the difference. In either case they are wrong.

Rumpole said...

Lysis,

After having giving your comment to DannyBoy some thought, I have concluded that I am guilty of the same inconsistency that DannyBoy is. I have I argued that the President has long standing traditional powers not specifically enumerated in the Constitution but upheld by the Court and used by previous Presidents. Then I have offered that the Supreme Court, in doing the same with “Judicial Review”, has overstepped its bounds.

I have to say that I still stand with Jefferson in the statements that I have quoted about the potential for judicial despotism. I would resolve his claims, however, by suggesting that the mechanism for protection against that despotism does exist.

As you have proffered (and DannyBoy alluded to – the Judiciary “must go through the approval process”) it is imperative to elect a President, and Senators I might add, who will appoint judges that will use their power to protect our nation and our rights.

It is amazing to me to see how the Constitution has grown as a document. I think there were many issues (War powers, Judicial Review) that our founding fathers were wisely purposely vague on to give the “experiment” the ability to adapt.

Such wisdom, however, can only bear fruit by the electorate being educated to both the current political climate and the original intent of the Constitution. The forum you have created has given us that opportunity!

Happy New Year!

supersonic said...

I don't think we can give Bush the ultimate slip yet Lysis. I hope that he ends up okay in the end but lets look at some info.

One of the main arguements that you and others (including myself) have put forward is that its okay because its not US citizens and its suspected terrorists...

the 4th ammendment states

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I see a lot of people and no American citizens. Do I think that terrorists deserve rights? Well I actually do... Because one definition of a terrorist is a person who takes away rights.

Even the guy who robbed the bank deserves his day in court or to remain silent or to have a lawyer.

So... Did President Bush spy on people. yes. (search without a warrant if you don't like spying). Is that allowed? Well it shouldn't be.

In that trail of thought the President is still in deep water. I have yet to hear an answer from the president or the staff on why they are allowed to do this.

And the question that is really in my mind is why didn't he just get a warrant? We can argue the courts power all day but the Patriot act gave the president his own secret court to get the warrants he needed. Yet he didn't even use those.

I do admit that reach upward's article (which was a good read thank you) talked about why not go to that court. Because of a wall between intelligence and FBI. Part of the patriot act if I'm not mistaken was for that very problem. But, if it still is a problem then we should fix the wall and not use the wall as an excuse for warrantless searches.

So to your statement Lysis, The president is not cleared in my mind just yet.

Lysis said...

Supersonic, a careful read of the last two web debates here in the Agora will probably give more support for the claims I will now make. I appreciate the chance to reiterate my position.

First let me state that I felt the same way you seem to feel now, when I first heard the NY Times story.

Consider these things. 1) The President does have Constitutional authority to act on his own without oversight from the other two branches in cases of National Defense and Foreign Intelligence. The Constitution, the FISC, which is the court brought into existence under the FISA (C for Court, A for Act), expressly gave the President a pass in dealing with foreign intelligence. 2) The President had statutory approval for the actions he took. The 9/11 Resolution gave him explicit power to do “what ever is necessary” to prevent another 9/11. 3) While the “spying” may have gone on in America, it was not domestic spying. The use by the Times of “spying on Americans” if they ever said it, was not accurate. Injecting Americans citizens into acts of war does not make the acts less acts of war, or place them under criminal investigation. They are still foreign intelligence and are the President’s direct responsibility to keep under surveillance. Again, the FISC, the Congress, and the Supreme Court have all said this. 4) The Supreme Court has stated that the Judiciary cannot interfere with the President’s National Security responsibilities.

So, while the New York Times and the anti-Bush Democrats are eager to create a violation of law, and will say it has been violated again and again to who ever will listen; the facts do not bear out the accusation. The real crime here has been the leak of classified information, the real evil the assault on America directed by the media and the Democrat leadership in a bid to gain power.

I was interested to hear a debate on Fox News’ Special Report the other day. Krauthammer suggested that the revelation of the President’s actions and the efforts of the CIA leaked by the media and misrepresented by the Democrats (other than Lieberman) show the American people why they have gone five years without an attack on the home land. Wan Williams, an NPR, commentator, actually said, “Perhaps Americans overestimated the threat form al Qaeda.” To which Krauthammer chuckled and said, “I doubt that al Qaeda has declared an armistice.”

As I have stated before, Bush is a victim of his own success. One heard similar nonsense after the fall of Communism. “Perhaps it was never a threat at all.” Tell that to the hundreds of millions murdered by Communists. If it weren’t so unbearably tragic it would be good for a laugh. President Bush’s aggressive and LEGAL War on Terror has been wonderfully successful. It is sad that there are Americans who are now more afraid of recognizing that phenomenal success thn they are of the terrorists who have sworn their destruction.

Medical Blog said...

Then came Presidents Bush’s speeches explaining to the American people the strategy and success in Iraq.

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