Originally Posted By woody Here's a full argument FOR the wiretaps. <a href="http://powerlineblog.com/archives/012631.php" target="_blank">http://powerlineblog.com/archi ves/012631.php</a>
Originally Posted By StillThePassHolder And here's a bit of rebuttal. <a href="http://www.thenation.com/docprint.mhtml?i=20060130&s=holtzman" target="_blank">http://www.thenation.com/docpr int.mhtml?i=20060130&s=holtzman</a> <snip> Two legal arguments have been offered for the President's right to violate the law, both of which have been seriously questioned by members of Congress of both parties and by the nonpartisan Congressional Research Service in a recent analysis. The first--highly dangerous in its sweep and implications--is that the President has the constitutional right as Commander in Chief to break any US law on the grounds of national security. As the CRS analysis points out, the Supreme Court has never upheld the President's right to do this in the area of wiretapping, nor has it ever granted the President a "monopoly over war-powers" or recognized him as "Commander in Chief of the country" as opposed to Commander in Chief of the Army and Navy. If the President is permitted to break the law on wiretapping on his own say-so, then a President can break any other law on his own say-so--a formula for dictatorship. This is not a theoretical danger: President Bush has recently claimed the right as Commander in Chief to violate the McCain amendment banning torture and degrading treatment of detainees. Nor is the requirement that national security be at stake any safeguard. We saw in Watergate how President Nixon falsely and cynically used that argument to cover up ordinary crimes and political misdeeds. Ours is a government of limited power. We learn in elementary school the concept of checks and balances. Those checks do not vanish in wartime; the President's role as Commander in Chief does not swallow up Congress's powers or the Bill of Rights. Given the framers' skepticism about executive power and warmaking--there was no functional standing army at the beginning of the nation, so the President's powers as Commander in Chief depended on Congress's willingness to create and expand an army--it is impossible to find in the Constitution unilateral presidential authority to act against US citizens in a way that violates US laws, even in wartime. As Justice Sandra Day O'Connor recently wrote, "A state of war is not a blank check for the President when it comes to the rights of the nation's citizens." The second legal argument in defense of Bush's warrantless wiretaps rests on an erroneous statutory interpretation. According to this argument, Congress authorized the Administration to place wiretaps without court approval when it adopted the 2001 resolution authorizing military force against the Taliban and Al Qaeda for the 9/11 attacks. In the first place, the force resolution doesn't mention wiretaps. And given that Congress has traditionally placed so many restrictions on wiretapping because of its extremely intrusive qualities, there would undoubtedly have been vigorous debate if anyone thought the force resolution would roll back FISA. In fact, the legislative history of the force resolution shows that Congress had no intention of broadening the scope of presidential warmaking powers to cover activity in the United States. According to Senator Tom Daschle, the former Senate majority leader who negotiated the resolution with the White House, the Administration wanted to include language explicitly enlarging the President's warmaking powers to include domestic activity. That language was rejected. Obviously, if the Administration felt it already had the power, it would not have tried to insert the language into the resolution. What then was the reason for avoiding the FISA court? President Bush suggested that there was no time to get the warrants. But this cannot be true, because FISA permits wiretaps without warrants in emergencies as long as court approval is obtained within three days. Moreover, there is evidence that the President knew the warrantless wiretapping was illegal. In 2004, when the violations had been going on for some time, President Bush told a Buffalo, New York, audience that "a wiretap requires a court order." He went on to say that "when we're talking about chasing down terrorists, we're talking about getting a court order before we do so." Indeed, the claim that to protect Americans the President needs to be able to avoid court review of his wiretap applications rings hollow. It is unclear why or in what way the existing law, requiring court approval, is not satisfactory. And, if the law is too cumbersome or inapplicable to modern technology, then it is unclear why the President did not seek to revise it instead of disregarding it and thus jeopardizing many otherwise legitimate anti-terrorism prosecutions. His defenders' claim that changing the law would have given away secrets is unacceptable. There are procedures for considering classified information in Congress. Since no good reason has been given for avoiding the FISA court, it is reasonable to suspect that the real reason may have been that the wiretaps, like those President Nixon ordered in Watergate, involved journalists or anti-Bush activists or were improper in other ways and would not have been approved.
Originally Posted By woody "Since no good reason has been given for avoiding the FISA court, it is reasonable to suspect that the real reason may have been that the wiretaps, like those President Nixon ordered in Watergate, involved journalists or anti-Bush activists or were improper in other ways and would not have been approved." He lost me there. I can't believe how weak the whole argument is (no legal citings). And it ends with a spectacular conspiracy!!!
Originally Posted By woody I thought this one is the strongest against the warrantless wiretapping. <a href="http://www.nybooks.com/articles/18650" target="_blank">http://www.nybooks.com/article s/18650</a> But the one from Powerline was still better one in favor of warrantless wiretapping because it gave additional background from previous tested court cases. <a href="http://powerlineblog.com/archives/012631.php" target="_blank">http://powerlineblog.com/archi ves/012631.php</a>
Originally Posted By patrickegan I say cool, cause when the dirty-bomb goes off I can start up smoking again!
Originally Posted By StillThePassHolder "He lost me there." Elizabeth Holtzman is female. "I can't believe how weak the whole argument is (no legal citings). And it ends with a spectacular conspiracy!!!" No legal cites doesn't make it weak. The article wasn't intended to be a legal treatise. And it didn't end with the portion I posted. If you read the entire thing you'd see holes in your opinion. The articles you cite admit they have no legal authority that is on point, meaning cases that have directly ruled on the issues in controversy. The authors are trying to either distinguish or analogize the cases they do cite, making it all simply the authors' opinion, not a conclusive finding. Inevitably, the Supreme Court will have to rule on the President's authority to do what he's done. Earlier woody, you said the President has Consitutional authority. You've presented articles that try to stretch case law to fit. have you yet been able to find where in the Constitution it empowers the President in the way you claim?
Originally Posted By woody "If you read the entire thing you'd see holes in your opinion." Wow. That's your job. I'm not going to second guess my opinion. Are you imcompetent to make your own argument? What do you think about the conspiracy theory in the end? It was quite revealing. As for the Constitution, how many times have you missed "inherent authority"? The Supreme Court already ruled. If they used the "doctrine of stare decisis," they will re-affirm the precedent. Or they will simply reject the case if they decide it was ruled correctly in the lower court.
Originally Posted By woody Elizabeth Holtzman does have more imaginative quotes. I wonder why you think she gets more creditable as she gets going. "First, there was no serious intelligence--good or bad--to support the Administration's suggestion that Saddam Hussein and Al Qaeda were in cahoots. Nonetheless, the Administration repeatedly tried to claim the connection to show that the invasion was a justified response to 9/11 (like the declaration of war against Japan for Pearl Harbor). The claim was a SHEER FABRICATION." What? Bush made it up from whole cloth. "The deliberateness of the deception has also been confirmed by a British source: the Downing Street memo, the official record of Prime Minister Tony Blair's July 2002 meeting with his top Cabinet officials. At the meeting the chief of British intelligence, who had just returned from the United States, reported that "Bush wanted to remove Saddam, through military action, justified by the conjunction of terrorism and WMD. But the intelligence and facts were being fixed around the policy." In other words, the Bush Administration was reported to be in the process of cooking up FAKE intelligence and facts to justify going to war in Iraq." Another simply remarkable claim of fakery. She is on a roll. I think the hole is in her head.
Originally Posted By StillThePassHolder "As for the Constitution, how many times have you missed "inherent authority"?" You have to be joking. Alberto Gonzales came up with that phrase. Not only that, we've never declared war on Iraq for a Commander in Chief" to utilize any alleged "inherent authority". >"If you read the entire thing you'd see holes in your opinion." Wow. That's your job. I'm not going to second guess my opinion. Are you imcompetent to make your own argument? What do you think about the conspiracy theory in the end? It was quite revealing.< It's my job to make you read the entire thing? If you weren't so lazy, you'd notice, as I've said, with your version of a conspiracy theory.
Originally Posted By StillThePassHolder "I think the hole is in her head." Yeah, sure it is, woody. Thing is, you can't prove her wrong.
Originally Posted By woody "You have to be joking. Alberto Gonzales came up with that phrase." I DECLARE YOU TO BE UNEDUCATED. THAT PHRASE DATES BACK TO 1994 WITH THE CLINTON ADMINISTRATION. <a href="http://www.nationalreview.com/york/york200512200946.asp" target="_blank">http://www.nationalreview.com/ york/york200512200946.asp</a> "The Department of Justice believes, and the case law supports, that the president has INHERENT AUTHORITY to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General." I've read large parts of that article. You have to point to the good part to prove your point. YOU DIDN'T PROVE ANYTHING and I'm not quite sure what your point is unless you tell me. SO TELL ME!!! "Yeah, sure it is, woody. Thing is, you can't prove her wrong." You normally don't have to prove a ridiculous charge. Moonbat.
Originally Posted By DouglasDubh <Not only that, we've never declared war on Iraq for a Commander in Chief" to utilize any alleged "inherent authority".> Um, yeah, we did. <a href="http://www.whitehouse.gov/news/releases/2002/10/20021002-2.html" target="_blank">http://www.whitehouse.gov/news /releases/2002/10/20021002-2.html</a>
Originally Posted By StillThePassHolder Here's quite a long debate between Federalist Society members David Rivkin and Robert Levy regarding several hot topic issues. Note the absence of juvenile name calling and yelling and screaming. <a href="http://www.fed-soc.org/pdf/domesticsurveillance.pdf" target="_blank">http://www.fed-soc.org/pdf/dom esticsurveillance.pdf</a>
Originally Posted By StillThePassHolder "Um, yeah, we did. <a href="http://www.whitehouse.gov/news" target="_blank">http://www.whitehouse.gov/news</a> /releases/2002/10/20021002-2.html" It would appear that no, we didn't. We stopped just short. <a href="http://en.wikipedia.org/wiki/Declaration_of_war_by_the_United_States" target="_blank">http://en.wikipedia.org/wiki/D eclaration_of_war_by_the_United_States</a>
Originally Posted By bboisvert RE #131 -->"The Department of Justice believes, and the case law supports, that the president has INHERENT AUTHORITY to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General." <<<<REPOST>>>> From CNN "The Situation Room" 12/21/05 Jeffery Toobin "In 1994, when Jamie Gorelick made that statement, physical searches were not covered by the FISA law. And that was changed in 1995." -------------- Just so that we're all clear that no one lives in a time warp, lets count... 1994, 1995, 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006. Yep, according to the facts above, 1995 comes AFTER 1994. the law allowed it in 1994, the law changed to make it illegal in 1995, 1996, 1997... all the way up to today.
Originally Posted By DouglasDubh <It would appear that no, we didn't. We stopped just short.> Well, let's look at wikipedia's definition of a declaration of war - "A declaration of war by the United States is the statement of purpose traditionally requested by the President of the United States and granted by Congress to engage military force against another nation." Sounds like what we did in the Joint Resolution to Authorize the Use of United States Armed Forces Against Iraq. If it looks like a duck, walks like a duck, and quacks likes a duck, it's a duck.
Originally Posted By DouglasDubh <Yep, according to the facts above, 1995 comes AFTER 1994. the law allowed it in 1994, the law changed to make it illegal in 1995, 1996, 1997... all the way up to today.> The inherent authority of the President cannot be changed by a statute of Congress, only by an Amendment to the Constitution.
Originally Posted By TomSawyer The inherent authority can't be changed, but the inherent authority is to execute the laws passed by the legislature. Congress cannot execute the law, and the president cannot make or violate them.
Originally Posted By bboisvert RE #138... <<The inherent authority of the President cannot be changed by a statute of Congress, only by an Amendment to the Constitution>> From another thread, DouglasDubh wrote, "The President doesn't have any "fantastic super powers". We're not omnipotent or omniscent." ----------------------------- The next logical statement is, "The President is not above the law." Everyone can agree on that I hope.
