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

[sgtclub]

Originally posted by Mmmm, Burger (C.J.)
Your article I is apparently incomplete:
Section 1: legislative power
Section 8, cls. 11-16 (relating to regulation of armies).

Where in Art. II does he gain "inherent authority"? He's supposed to execute the laws passed by Congress.

The problem here is what you should remember from the first year of law school: Jackson's opinion in Youngstown Sheet and Tube. When Congress has spoken on an issue and the president wants to act inconsistently, his power is at an ebb. This is not an area where it's ambiguous and left open. Congress specified procedures in FISA, has failed to change those procedures, yet Bush said "screw that process, I'm going to circumvent it."

I don't see how the "unitary executive" theory can be stretched so far as to permit actions directly contrary to what Congress has specified unless the Constitution commits to the sole discretion of the President a particular power. And, to anticipate the next step, his power as commander in chief doesn't get you there, because a) war had not been declared and b) even if it had, he was not commanding the army or military.

You are correct in your assumption that I'm basing this on a unitary executive theory and I think we differ on this in that you don't see his actions in the context of a war, where the president has always been granted/taken additional powers.

Answer me this . . . if in WWII, when the US was cracking the German codes, the Germans had a foothold in say, Florida, would the President be required to get a court order to intercept the communications?

[Tyrone Slothrop]

Originally posted by sgtclub
From what Roberts says (and he is one of the few politician's that seems to shoot straight), Rockefeller sent the letter as a CYA.

Pat Roberts is one of the biggest hacks in the Senate. Don't even get me started on him. How would he even know why Rockefeller sent the letter? And given the security requirements, what else was Rockefeller supposed to do? He wasn't allowed to discuss what he'd heard with anybody. We don't even know what he was told, since it's classified.

I didn't realize the military was involved in the wire taps. Oh wait. They weren't.

No shit. And yet the President is relying on Article II, Section 2, which refers to his power as Commander in Chief of the Army and Navy. Kind of makes you wonder.

eta: Although I've had this conversation in the comments on a conservative blog and have had conservatives tell me that, for various reasons, the NSA is essentially part of the military.

[Tyrone Slothrop]

Originally posted by sgtclub
You are correct in your assumption that I'm basing this on a unitary executive theory and I think we differ on this in that you don't see his actions in the context of a war, where the president has always been granted/taken additional powers.

Answer me this . . . if in WWII, when the US was cracking the German codes, the Germans had a foothold in say, Florida, would the President be required to get a court order to intercept the communications?

If you're asking a question about FISA, which was not written until thirty years after WWII ended, it has provisions to ensure that the government doesn't need to get a warrant to spy on foreign powers.

[original Hank@judged.com]

Originally posted by Tyrone Slothrop
If you're asking a question about FISA, which was not written until thirty years after WWII ended, it has provisions to ensure that the government doesn't need to get a warrant to spy on foreign powers.

did the UN approve of this?

[Tyrone Slothrop]

Originally posted by original Hank@judged.com
did the UN approve of this?

You're the one who reads DU -- we all rely on you for that sort of insight.

[sgtclub]

Originally posted by Tyrone Slothrop
If you're asking a question about FISA, which was not written until thirty years after WWII ended, it has provisions to ensure that the government doesn't need to get a warrant to spy on foreign powers.

And this is exactly why it's outdated. Look, I started this whole conversation off by saying that I was not exactly comfortable with the wire tapping program, but we also don't know all the facts. If the wire taps were on non-citizens, I have absolutely no problem with them. If they were on citizens that were cooperating with the "enemy" it's a far more difficult issue. I just view the potential magnitude of the promlem so large that I'm willing to accept a curtailment of civil rights, but I certainly think their is a middle ground that could be reached.

[baltassoc]

Originally posted by baltassoc
So you are saying that a high ranking Republican threatened to ruin politically and professionally a political rival? Nice.

I would imagine the threat would be simple to carry out, if you do not self-finance your investments. They simply call your bank and let them know all Republicans at the state and federal levels will be unable to address any of their concerns so long as they continue to extend you credit. When you move to the next bank: rinse, repeat.

Delay peddled influence to get good tables at nice restaurants. Why not for revenge?

Also, you may want to consider that moderate Republicans are often hunted for sport by the Administration.

[Replaced_Texan]

Originally posted by sgtclub
And this is exactly why it's outdated. Look, I started this whole conversation off by saying that I was not exactly comfortable with the wire tapping program, but we also don't know all the facts. If the wire taps were on non-citizens, I have absolutely no problem with them. If they were on citizens that were cooperating with the "enemy" it's a far more difficult issue. I just view the potential magnitude of the promlem so large that I'm willing to accept a curtailment of civil rights, but I certainly think their is a middle ground that could be reached.

Seems to me though that if the law is outdated, you change the law. You don't ignore the law all together and then say the criminal penalties for breaking that law don't apply because "the law is outdated."

This was a subject that needed to be considered and debated by the Congress.

[baltassoc]

Originally posted by Replaced_Texan
Seems to me though that if the law is outdated, you change the law. You don't ignore the law all together and then say the criminal penalties for breaking that law don't apply because "the law is outdated."

This was a subject that needed to be considered and debated by the Congress.

Silly! That's how things work in a Democracy.

Not here.

[Gattigap]

Originally posted by baltassoc
Also, you may want to consider that moderate Republicans are often hunted for sport by the Administration.

Article written by a man named "Clay." Clearly, this dude has issues.

[Tyrone Slothrop]

Originally posted by sgtclub
If they were on citizens that were cooperating with the "enemy" it's a far more difficult issue.

The wiretaps were on citizens and non-citizens alike. And they were not tapping people who "were cooperating' with the enemy -- if they had even probable cause to believe that, it would have been a simple matter to get a warrant from the FISA court. (FISA doesn't totally ban the taps -- it says you have to get a warrant from a special, secret court, and it even lets the government get the warrant up to three days later if need be.)

No, the executive branch decided to circumvent the FISA court because it wanted to wiretap citizens in circumstances where it could not establish probable cause to get a warrant. That's the problem.

And instead of going to Congress to change the law, it secretly decided that it was above the law.

I just view the potential magnitude of the promlem so large that I'm willing to accept a curtailment of civil rights, but I certainly think their is a middle ground that could be reached.

I think most reasonable people would be open to the idea of changing FISA if the reduction in civil rights was warranted by good intel. But press accounts suggest that these programs generated very little useful intel. And the problem is that if one branch is deciding for itself, there's no check on it's judgment about how to balance the benefits and harms. E.g., the requirement that a warrant issue is a way to make sure that a government official in another branch agrees that someone's civil liberties should be invaded.

The problem here is that Bush not only kept this quiet instead of raising it with the other branches -- he is asserting that as a matter of constitutional law, he is not obliged to listen to what they say at all.

Checks and balances, man. Maybe the framers' greatest innovation, and he's fucking with it.

[baltassoc]

Originally posted by Gattigap
Article written by a man named "Clay." Clearly, this dude has issues.

How about a chick named "Molly"?

(Same thing, but bitterer and funnier.)

[original Hank@judged.com]

Originally posted by baltassoc
Silly! That's how things work in a Democracy.

Not here.

shouldn't you save your really good material like this for pillow talk rather than board correspondence?

[Sidd Finch]

Originally posted by Spanky
The question I have is how do we know that the wire taps are not on domestic calls?

Because Bush said that they mostly aren't, mostly. Except when they might need to be, of course. But in that case, the White House will supervise itself some more, so we'll all be okay.

Checks, schmecks. Balances, schmalances. You elected him, he gets to be king.

[Sidd Finch]

Originally posted by Replaced_Texan
So how does the whole "commander in chief" thing justify the wire taps then?

The argument I've heard is that intelligence gathering is an inherent part of the military, even if it's not the army or navy that's doing the intelligence gathering.

Right. Bush was sub-contracting. He's CinC, he can do that, too.