LawTalkers - The babyjesuschristsuperstar on Board: filling the moral void of Clinton’s legacy

Originally posted by Mmmm, Burger (C.J.)
My sense is (and I confess to not having read everything) is that one of the concerns Bush has with FISA is that the statute requires specific identification of a target to get a FISA warrant. That doesn't work so well when you don't know the targets in the first place.

I'm inclined to agree with you on this.

taxwonk

02-24-2006 01:27 PM

Bush is Genius?

Quote:

Originally posted by Hank Chinaski
But if there is a Congressional law saying Middle Eastern entities are de facto suspious, wouldn't that be probable cause to troll through all calls into and out of those countries?

Apparently it is to some people.

taxwonk

02-24-2006 01:30 PM

Port (yes, whine) Issue

Quote:

Originally posted by original Hank@judged.com
as usual, you seem very naive here.

I wonder how waiting for a warrant to listen to Mussiaou and the other September 11 hijackers is working out for the majority of people in the world trade on September 11.

Was one applied for? Before September 12, 2001?

sgtclub

02-24-2006 01:43 PM

Port (yes, whine) Issue

Quote:

Originally posted by Tyrone Slothrop
Maybe, but the point I'm making is that this is not about civil rights, it's about the constitutional separation of powers and whether the President can simply ignore the law and the courts when he wants to.

You know I have a soft spot for process arguments.

Quote:

You would imagine wrong. There's nothing that I know of in the federal code that says that you can reveal classified information because you think another government official is violating the Constitution. Hell, Rockefeller couldn't even talk to a staff lawyer to get legal advice about the situation.

Maybe you're not following. They couldn't tell anyone. A subset of "anyone" is "other Congressmen."

I can't believe this is true . . . that you can't disclose confidential info if an illegal action is being committed. But hell, I'm not about to do the research.

Tyrone Slothrop

02-24-2006 01:58 PM

Port (yes, whine) Issue

Quote:

Originally posted by sgtclub
I can't believe this is true . . . that you can't disclose confidential info if an illegal action is being committed. But hell, I'm not about to do the research.

How would Rockefeller even know whether it was illegal without talking to a lawyer, which he wasn't allowed to do?

Mmmm, Burger (C.J.)

02-24-2006 02:41 PM

Port (yes, whine) Issue

Quote:

Originally posted by Tyrone Slothrop
How would Rockefeller even know whether it was illegal without talking to a lawyer, which he wasn't allowed to do?

I think you're overstating this a bit. Rockefeller has the relevant security clearance. So do other members of the intelligence committee. So do some of the staff. He could talk to any of them without concern for violating a statute or losing his clearance. (So, I'm baffled by his claim that there were no counsel for him to speak with--as ranking member he ought to do a better job of hiring.)

Rockefeller did not write his note as an opinion piece. It was solely to document his concerns. The rest is fluff. And by concerns I mean "the unwillingness of the administration to brief congress more thoroughly."

But anyway, what are we arguing about? If Bush sees a problem with FISA, he should go to Congress with a proposal for reform. If necessary, do it on the q.t.

original Hank@judged.com

02-24-2006 03:11 PM

Port (yes, whine) Issue

Quote:

Originally posted by Sidd Finch
I agree absolutely. It would have been good if, in the first 9 months of 2000, before the 9/11 attacks that occurred in 2000, someone had been leading the charge to investigate and listen in on al Qaeda. Especially after that report came out, in the summer of 2000, that al Qaeda was "determined to strike within the US. Unfortunately, the government sat on its hands throughout 2000, and then, on 9/11/2000 we were attacked.

Still, though -- it seems to me that the problem was in not using the intelligence that was available, throughout the first 9 months of 2000. Not that anyone was "waiting to get a warrant"

If you have any basis for saying that the problem was that they were worried that they couldn't get a warrant, I would like to hear it. But I think it was simply that the federal government was not bothering to investigate at all, and that this is why there was no effort to do a damn thing throughout the first nine months of 2000 despite the warnings that came in the months before 9/11/2000.

this response would be of some value* if al qaeda first came into being on January 20, 2001. too bad, for the dead of September 11, it was in existence and plotting the september 11 attacks for years prior to the execution. things like FISA and other erros and omissions of those years set up Bush et al. to be fall guys of responsbility.

of course, I understand you have to maintain their defense of FISA etal. now in orderr to maintain Bush's fault.

edit : *it is also of value for Wonk, Ty and fringey to use as authority on other boards and blogs that they post.

original Hank@judged.com

02-24-2006 03:16 PM

Port (yes, whine) Issue

Quote:

Originally posted by taxwonk
Was one applied for? Before September 12, 2001?

don't be naive like Sidd. it was one of many rationalized hurdles that others put in place to prevent the executive from protecting us. Bush becomes damned if he does or doesn't, but I would rather be alive with bugs on my calls to Islamabad then dead of a second or third round of attacks, eg a NW Air flight into the RenCen.

Shape Shifter

02-24-2006 03:59 PM

Port (yes, whine) Issue

Quote:

Originally posted by original Hank@judged.com
don't be naive like Sidd. it was one of many rationalized hurdles that others put in place to prevent the executive from protecting us. Bush becomes damned if he does or doesn't, but I would rather be alive with bugs on my calls to Islamabad then dead of a second or third round of attacks, eg a NW Air flight into the RenCen.

Okay, we know where you stand on the liberty vs. security scale. So what are the limits of the President's authority? Any?

Tyrone Slothrop

02-24-2006 04:05 PM

Port (yes, whine) Issue

Quote:

Originally posted by Mmmm, Burger (C.J.)
I think you're overstating this a bit. Rockefeller has the relevant security clearance. So do other members of the intelligence committee. So do some of the staff. He could talk to any of them without concern for violating a statute or losing his clearance. (So, I'm baffled by his claim that there were no counsel for him to speak with--as ranking member he ought to do a better job of hiring.)

I think you and I agree that whatever was said when a few Senators and Representatives were briefed did not cure the separation-of-powers problems with what the Executive Branch was doing. I gather that club felt otherwise.

I did understand Rockefeller to have been saying that he was not permitted to speak to anyone else about his concerns, and I will confess that I don't know enough about the law there to understand why this might be so, but that I took him at his word.

Mmmm, Burger (C.J.)

02-24-2006 04:14 PM

Port (yes, whine) Issue

Quote:

Originally posted by Tyrone Slothrop

I did understand Rockefeller to have been saying that he was not permitted to speak to anyone else about his concerns, and I will confess that I don't know enough about the law there to understand why this might be so, but that I took him at his word.

All I can figure is that either there was no one with his level of clearance that was appropriate to talk to, or that he didn't trust any of them enough to do so. I suspect the former, and what he probably means is that there weren't any constitutional scholars with the requisite clearance that he could go to.

And, yes, as far as I can discern nothing in the constitution gives the president authority to take action beyond a grant of existing authority merely by telling congress he's going to do so.

sgtclub

02-24-2006 04:39 PM

Port (yes, whine) Issue

Quote:

Originally posted by Tyrone Slothrop
I think you and I agree that whatever was said when a few Senators and Representatives were briefed did not cure the separation-of-powers problems with what the Executive Branch was doing. I gather that club felt otherwise.

I wasn't trying to suggest that it cured any SOP problem, if there is one. The fact that he did brief members of congress does, however, cut against the claims by some that he was operating this program in a dark smokey room for nefarious purposes.

What about the president's war powers? I don't know enough about the act, but is that a possible source for authority? If so, I would argue that the resolution for the WOT, being later in time, supercedes FISA in the event of a conflict.

Quote:

. . . but that I took him at his word.

Funny that.

Mmmm, Burger (C.J.)

02-24-2006 04:48 PM

Port (yes, whine) Issue

Quote:

Originally posted by sgtclub
The fact that he did brief members of congress does, however, cut against the claims by some that he was operating this program in a dark smokey room for nefarious purposes.

I don't think anyone has said Bush is using this for nefarious purposes. Fighting terrorism is laudable, everyone agrees, and that's it's purpose.

But there are plenty of crime-fighting programs that have a laudable purpose but an unconstitutional implementation. Look no further than any proposal to arrest all blacks because the crime rate is higher. It's not nefarious in purpose, is it? It's just trying to reduce crime.

Tyrone Slothrop

02-24-2006 04:49 PM

Port (yes, whine) Issue

Quote:

Originally posted by sgtclub
I wasn't trying to suggest that it cured any SOP problem, if there is one. The fact that he did brief members of congress does, however, cut against the claims by some that he was operating this program in a dark smokey room for nefarious purposes.

Just so we're clear -- I don't really think the President is using this program for "nefarious" purposes. But the road to hell is paved with good intentions.

Quote:

What about the president's war powers? I don't know enough about the act, but is that a possible source for authority? If so, I would argue that the resolution for the WOT, being later in time, supercedes FISA in the event of a conflict.

Aren't we talking about the President's power as CIC?

And if you're arguing that the Authorization for the Use of Military Force in Afghanistan somehow trumps FISA, don't bother. It's later in time, but FISA specifically deals with wartime, too, so there's no reason to think that Congress was trying to change FISA when it passed the AUMF. An earlier, specific statute will trump a later, general one.

Quote:

Funny that.

It would be a dumb thing to lie about, since it would be so easily refuted.

taxwonk

02-24-2006 05:08 PM

Port (yes, whine) Issue

Quote:

Originally posted by Tyrone Slothrop
Just so we're clear -- I don't really think the President is using this program for "nefarious" purposes. But the road to hell is paved with good intentions.

Aren't we talking about the President's power as CIC?

And if you're arguing that the Authorization for the Use of Military Force in Afghanistan somehow trumps FISA, don't bother. It's later in time, but FISA specifically deals with wartime, too, so there's no reason to think that Congress was trying to change FISA when it passed the AUMF. An earlier, specific statute will trump a later, general one.

It would be a dumb thing to lie about, since it would be so easily refuted.

You can make all the arguments you want, but I bet the Cal professor gets his computer back pronto when the kid finds out they're tapping his 976 calls.

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