Originally Posted By DouglasDubh <If the president (any president) is not required to get a warrant and thus has no court oversight, we have to take ON FAITH that all his searches and wiretaps are on the up and up.> No we don't. The President does not perform these operations on his own. If the NSA were doing things that weren't on the up and up, we'd hear about it. <Despite what the law actually says.> In some people's opinion. In others, they are doing exactly what the law says.
Originally Posted By Dabob2 Dabob2: >>So what about this do you not understand? If FISA did not prohibit something at the time it occurred, it was not against the law.<< <The Ames case would be against the law due to the Fourth Amendment alone. Congress cannot write a statue to abridge the Fourth Amendment. FISA is irrelevant. Clinton said so via Gorelick despite your hollow arguments.> Please. It's not a hollow argument to point out that what happened was not illegal at the time it happened, and only became illegal later. Was it unconstitutional due to the 4th ammendment? That's another question; legislatures CAN pass laws that are later deemed unconstitutional, in whole or in part. But that's up to the courts to decide, and in this case they didn't do so, so you are revealing once again that you do not really understand how our system works. <John Schmidt believes the current and past Administrations are acting within the law especially with exception clause, which was filled in with AUMF (as argued by Alberto Gonzales). You keep saying he ADMITS to breaking the law. He did no such thing.> I said that Schmidt admitted breaking the law? Where did I say that? I believe I said he was making the argument that they weren't breaking the law, but that I believe they will ultimately be shown to be wrong about that. <The rest of your post is useless as a way to further extend the debate.> Meaning, you don't want to deal with it. <Why not make it easier for yourself by saying... I disagree?> Because then I wouldn't have the fun of pointing out where you're wrong.
Originally Posted By Dabob2 <<If the president (any president) is not required to get a warrant and thus has no court oversight, we have to take ON FAITH that all his searches and wiretaps are on the up and up.>> <No we don't. The President does not perform these operations on his own. If the NSA were doing things that weren't on the up and up, we'd hear about it.> Not necessarily, and not necessarily right away. In fact, the trouble with having no oversight is exactly that - you ultimately need a whistle-blower, and one does not always appear, at least not immediately. And nice attempt at obfuscating - of course the president doesn't do the wiretaps himself, but we're talking about executive branch power here, not Bush specifically. <<Despite what the law actually says.>> <In some people's opinion. In others, they are doing exactly what the law says.> And ulimtately the courts will decide if the law has in fact been broken.
Originally Posted By DouglasDubh <Not necessarily, and not necessarily right away. In fact, the trouble with having no oversight is exactly that - you ultimately need a whistle-blower, and one does not always appear, at least not immediately.> Either way, you have to give the NSA a little trust. Assuming that they could get warrants fast enough to go through the FISA court for legitimate terrorist wire taps, how would you ever know that they were not going through the FISA court for illegitimate ones? <And nice attempt at obfuscating - of course the president doesn't do the wiretaps himself, but we're talking about executive branch power here, not Bush specifically.> It's not obfuscating; it's pointing out a legitimate fact - there are lots of people performing these wiretaps and supervising them, and aware of them, and there hasn't been one report of one being done for any reason other than national security. <And ulimtately the courts will decide if the law has in fact been broken.> I'm not so sure. Who would have standing?
Originally Posted By woody "But that's up to the courts to decide, and in this case they didn't do so, so you are revealing once again that you do not really understand how our system works." The system works in several ways. That's why there is this debate. Yet, you still did not provide any evidence to support your argument. "I said that Schmidt admitted breaking the law? Where did I say that?" Okay, you said he ADMITS that the law was broken in Post 211. He did not admit the law the broken. "Because then I wouldn't have the fun of pointing out where you're wrong." You haven't. You merely pointed out that you disagree without evidence to support your arguments.
Originally Posted By woody If you want evidence that the whole FISA Act is messed up, look at this case. <a href="http://www.fas.org/irp/agency/doj/fisa/082102appeal.html" target="_blank">http://www.fas.org/irp/agency/ doj/fisa/082102appeal.html</a> The Department of Justice has appealed a decision by the FISA Court that restricted intelligence sharing between the domestic law enforcement agencies and the federal foreign intelligence gathering agencies. This whacked decision was overturned on appeal. <a href="http://news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf" target="_blank">http://news.findlaw.com/hdocs/ docs/terrorism/fisa111802opn.pdf</a> "Not surprisingly this case raises important questions of statutory interpretation, and constitutionality. After a careful review of the briefs filed by the government and amici, we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution. We therefore remand for further proceedings in accordance with this opinion." In this decision, there's this bonus paragraphs. The courts probably won't ever have a definitive answer on foreign intelligence gathering, and don't know if ever will. Based on this, I think the courts will give the President wide latitude in foreign intelligence matters. FISA will continue to be a gray area with Constitutional Law. It really isn't Constitutional, but we all like to believe it is. "We acknowledge, however, that the constitutional question presented by this case – whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment – has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning." "Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. ==>>>Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.<<<=== We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable." THEY DECLINED TO ADDRESS THE PRESIDENTS INHERENT CONSTITUTIONAL AUTHORITY. What a conflict!!!
Originally Posted By woody In summary, this decision is saying The Patriot Act 2 amends FISA. In my previous posts, I said the AUMF amends FISA. Okay, do we really know what FISA means?
Originally Posted By Beaumandy Of all the debates we have had, the FISA wiretap debate is a slam dunk for Bush and the GOP. They are actually going to have congressional hearing on the spy program next week and you know what? The President and his administration are pumped about these hearings! They know the program is not only 100% lega The dems in classic dim style are actually arguing that we should not spy on Al Quaida calls! They are once again pushing the " terrorist bill of rights ". They they claim Bush should be impeached for breaking the law by doing domestiv spying??? The liberals are so cute when they act liek this. I also love the fact that they offer NO plan on how they are going to stop Al Quaida from launching the next attack Bin Laden says is coming. THEN.. they expect America to actually vote for them????? BWWWWAAHAHHAHAHAAHA He libs... nice campaign strategy! You did it again!
Originally Posted By Dabob2 <<"But that's up to the courts to decide, and in this case they didn't do so, so you are revealing once again that you do not really understand how our system works.">> <The system works in several ways. That's why there is this debate. Yet, you still did not provide any evidence to support your argument.> Of course I did; actually Tom did and I reiterated what he said. What happened was not illegal at the time it happened. You choose to try to refute this by saying "The Ames case would be against the law due to the Fourth Amendment alone." This would be something for the courts to decide, and they didn't, so it is you who have nothing to back up your position. <<I said that Schmidt admitted breaking the law? Where did I say that?>> <Okay, you said he ADMITS that the law was broken in Post 211. He did not admit the law the broken.> Look again. I said he is essentially admitting the law was broken, but that it was okay because 9/11 changed everything. It's an attempt at preemptive justification. <<Because then I wouldn't have the fun of pointing out where you're wrong.>> <You haven't. You merely pointed out that you disagree without evidence to support your arguments.> See above. It is you who is relying on interpretations of the constitution made by whom? By you, or by the administration's talking points, but not by any court.
Originally Posted By Dabob2 <<Not necessarily, and not necessarily right away. In fact, the trouble with having no oversight is exactly that - you ultimately need a whistle-blower, and one does not always appear, at least not immediately.>> <Either way, you have to give the NSA a little trust.> What was it Reagan said about the soviets? Trust but verify? That's what court oversight does. <Assuming that they could get warrants fast enough to go through the FISA court for legitimate terrorist wire taps, how would you ever know that they were not going through the FISA court for illegitimate ones?> That's what you'd need a whistleblower for. But at least then you could separate the legit from the illegit. Bush is trying to claim that it's ALL legit, without any court saying so. <<And nice attempt at obfuscating - of course the president doesn't do the wiretaps himself, but we're talking about executive branch power here, not Bush specifically.>> <It's not obfuscating; it's pointing out a legitimate fact - there are lots of people performing these wiretaps and supervising them, and aware of them, and there hasn't been one report of one being done for any reason other than national security.> And if the Watergate burglars hadn't been caught that night, how would we have ever known about that? IMO, you're putting too much trust (and power) in the executive branch to always do what it right. History shows us that will not always be the case. Oversight is necessary. <<And ulimtately the courts will decide if the law has in fact been broken.>> <I'm not so sure. Who would have standing? > That's a good question, and perhaps STPH could weigh in. If Specter, say, believed laws were broken, would he have standing? Or perhaps someone who was actually wiretapped. Seems to me that if someone with no terrorist connection discovered that he had been wiretapped, he could challenge the legality of the tap - that would take years, of course.
Originally Posted By DouglasDubh <And if the Watergate burglars hadn't been caught that night, how would we have ever known about that?> The same way we came to know about it. People who knew things talked. <Seems to me that if someone with no terrorist connection discovered that he had been wiretapped, he could challenge the legality of the tap - that would take years, of course.> If ever. And then, what would he sue for? How would he show damages?
Originally Posted By woody Dabob2: "Of course I did; actually Tom did and I reiterated what he said. What happened was not illegal at the time it happened. You choose to try to refute this by saying "The Ames case would be against the law due to the Fourth Amendment alone." This would be something for the courts to decide, and they didn't, so it is you who have nothing to back up your position." It is amazing that you accepted Tom's argument without reservation especially since I pointed out a contradiction that you acknowledged. The Ames case is very clear. President Clinton has acted correctly. There is no analysis on your part. You moved the goal posts. You said I haven't backed up my position because I haven't proved the Ames case since the courts haven't ruled. The truth is courts have ruled in various forms. Since the courts have ruled in favor of the Administration in various lawsuits like the one I posted above in Post 221, it is safe to assume the Administration will be found to be acting legally in the ==>>"President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance".<<== If your position is the courts did not rule on the issue, then HOW CAN ANYONE SAY IT IS ILLEGAL? (BTW: Please back up this assertion with the Ames case or any other case.) "Look again. I said he is essentially admitting the law was broken, but that it was okay because 9/11 changed everything. It's an attempt at preemptive justification." It's a distinction without a difference. With the Patriot Act and the AUMF, the President's powers have expanded. You debased this debate. You keep saying I'm reciting talking points. The next conspiracy theory... THE COURTS AGREE WITH THE ADMINISTRATION (Post 221). <a href="http://news.findlaw.com/hdocs/docs/terrorism/fisa111802opn.pdf" target="_blank">http://news.findlaw.com/hdocs/ docs/terrorism/fisa111802opn.pdf</a> "Not surprisingly this case raises important questions of statutory interpretation, and constitutionality. After a careful review of the briefs filed by the government and amici, WE CONCLUDE THAT FISA, AS AMENDED BY THE PATRIOT ACT,2 SUPPORTS THE GOVERNMENT’S POSITION, AND THAT THE RESTRICTIONS IMPOSED BY THE FISA COURT ARE NOT REQUIRED BY FISA OR THE CONSTITUTION. We therefore remand for further proceedings in accordance with this opinion."
Originally Posted By woody "That's what you'd need a whistleblower for. But at least then you could separate the legit from the illegit. Bush is trying to claim that it's ALL legit, without any court saying so." More Dabob2 conspiracy fantasies. The President have separate powers unique to his own. The court cannot abridge those rights. Haven't you said the courts haven't ruled on them? If so, why haven't they ruled? Actually, the courts have ruled in many ways. One way is the reaffirm the "President’s inherent constitutional authority". The second way to to avoid ruling on it via the "canon of constitutional avoidance" (see my Post 175). Either way, it isn't pretty.
Originally Posted By woody Here an interesting analysis by the former Clinton administration official Walter Dellinger. He believes FISA can be ignored under certain circumstances. <a href="http://www.morgancunningham.net/downloads/article_18.pdf" target="_blank">http://www.morgancunningham.ne t/downloads/article_18.pdf</a>
Originally Posted By Dabob2 <<And if the Watergate burglars hadn't been caught that night, how would we have ever known about that?>> <The same way we came to know about it. People who knew things talked.> You know as well as I that if the burglars had not been caught, there would have been no subject to talk about; chances are no one would have ever known about Watergate, except perhaps many years later. It wasn't even in itself an important operation. Nixon would have overheard some Democratic strategy for an election he won handily anyway, and if the bugs were never found, it probably would never have come to light. People telling stories years later would have occasioned either a yawn, or like stories of Hoover bugging Dr. King, an "oh, he shouldn't have done that." But certainly no removal of Nixon at the time. Had the burglars not been caught, everything would have been different. <<Seems to me that if someone with no terrorist connection discovered that he had been wiretapped, he could challenge the legality of the tap - that would take years, of course.>> <If ever. And then, what would he sue for? How would he show damages?> Depends what happened to him.
Originally Posted By DouglasDubh <You know as well as I that if the burglars had not been caught, there would have been no subject to talk about; chances are no one would have ever known about Watergate, except perhaps many years later.> I don't know that. It's my opinion that the misdeeds of the Nixon administration would have come to light eventually, although it may not have been as quickly and with the same magnitude.
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Originally Posted By Dabob2 <<You know as well as I that if the burglars had not been caught, there would have been no subject to talk about; chances are no one would have ever known about Watergate, except perhaps many years later.>> <I don't know that. It's my opinion that the misdeeds of the Nixon administration would have come to light eventually, although it may not have been as quickly and with the same magnitude.> I think that's an obvious understatement. And the same is true today; there needs to be oversight on executive power. Power tends to corrupt, and absolute power corrupts absolutely (and the closer to absolute, the more corruption). Obviously the executive doesn't have absolute power yet, but in this particular matter, if there is no oversight, it's about as close as you can get. If you know no one is watching, you tend to see what you can get away with. It's human nature, and why the founders instituted checks and balances.
Originally Posted By woody "Whether it actually is may take a definitive court decision. What is so difficult to understand about that?" The court decisions so far have argued in the President's favor. You fail to acknowledge that. "Good grief. You DO realize, don't you, that this is about a much narrower matter than what is being discussed today? Wait, maybe you don't." You don't know much do you? That's why you defer the argument. Very convenient.
Originally Posted By woody "That does not necessarily follow. It is never safe to assume the outcome of any given case based on other cases that may or may not be shown to be similar in all ways." The court decisions say in explicit terms ==>>"President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance".<<== Does the President have this inherent constitutional authority? Although you don't think so, why does the court keep refering to it? It's sort of like arguing the elephant isn't in the room when it is in the room. As long as the President keeps asserting it and the courts have acknowledged it and upheld it or avoided ruling on it, the President is in SAFE LEGAL GROUND.
