camFreedom, liberty, equity and an Australian Republic[ Parent ]
Despite what the Democrats have been pushing, when the FISA judges went before Congress they didn't seem to think his NSA program violates FISA.
The Libby/Plame crap smells like hell, but if Bush authorized it, it wasn't a leak and didn't violate any laws - the executive controls the classification system. The doctor said it was the worst case of cookie-blindness he'd ever seen.[ Parent ]
In other words, Congress could make any evidence gathered that way inadmissable in court, but they (Congress) couldn't limit Bush's constitutional powers to defend the country.
Now, I didn't read the entire transcript, so I'll admit there might have been other parts that say something different.--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
I have to wonder about that first guy, though--what does he think his job as a FISA judge is, if not restricting Bush's wiretapping powers?--- Now accepting suggestions for a new sigline[ Parent ]
Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant "warrantless."] surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary. * The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans. * Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President? Judge Kornblum: No President has ever agreed to that. * Senator Feinstein: What do you think as a Judge? Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority. Senator Feinstein: I would like to go down the line if I could. * Judge Baker? Judge Baker: No, I do not believe that a President would say that. Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA? Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too. Senator Feinstein: Judge? Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution. Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that? Chairman Specter: Everybody agrees with that. --You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant "warrantless."] surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary. * The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans. *
Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?
Judge Kornblum: No President has ever agreed to that. *
Senator Feinstein: What do you think as a Judge?
Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.
Senator Feinstein: I would like to go down the line if I could. * Judge Baker?
Judge Baker: No, I do not believe that a President would say that.
Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?
Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too.
Senator Feinstein: Judge?
Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution.
Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?
Chairman Specter: Everybody agrees with that.
Why would he raise the issue of constitutionality if it wasn't in doubt?--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
In any case, "Bush is OK as long as the law we've been enforcing turns out to be unconstitutional" is a far cry from "they didn't have a problem with it".
Sounds like you agree there needs to be an investigation. I look forward to reading your diary about suggesting impeachment to your representatives.--- Now accepting suggestions for a new sigline[ Parent ]
That said, to say that action X is fine because law Y is unconstitutional is a fundamentally different argument that action X did not break the law. The former actually implies that the perpetrator of X did, in fact, break the law but that the law needs to be modified. And, as far as I know, most laws are presumed to be constitutional until struck down by the courts.
Which means that your approach to this seems rather odd to me.
What's supposed to happen is the AG says it's legal. Then either the Congress gets off their asses and pass a law clarifying that it is not, in fact, legal or someone sues the AG and takes it to court where they then decide whether it's legal or not.
(Or, the AG decides it's illegal and files charges or sues and the defendant must defend himself. Although I don't believe I've ever heard of an AG filing charges or sueing a president.)
AFAIK, the FISA court does not try cases. They exist to issue subpoenas in secret.-- Close friendships and a private room can offer most of the things love does. [ Parent ]
It needs to be taken into a real court of law and argued like anything else. Bush's defence of checking with his lawyer buddies doesn't hold any water.
Warmest regards, --Your best pal Bob[ Parent ]
Also, why do you say that Republican party discipline was begining to fracture months ago? You'll here one or two GOP senators say something that doesn't hold the line, but when the votes come out on the table, they're almost always straight in line with the party platform.
To be honest, I was way over on the "throw open the borders" side of things until I saw all those idiot protestors waving Mexican flags on American streets. I mean, Christ, what message, exactly, are they trying to send? --You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
Such tactics won't completely eliminate the problem. But it would go a long way towards reducing the problem. There is, after all, no silver bullet. Instead, there is are just various ways of managing the process.
Another good way to manage the problem is universal conscription, but that's another discussion altogether.
I actually love the idea of universal conscription - with the caveat that it shouldn't be limited to military service. I think the idea of spending a year or two out of school actually doing something that contributes to the well being of society would do wonders both for the country and for the people who live in it.
Repairing and maintaining parks, working in a government office, hell, just picking up the litter, would help people understand that they are the government or at least they're supposed to be. --You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
I have a lot of sympathy for anyone wanting to come here to earn more money and I think they should be able to do it legally without fearing the law - but I also have sympathy for Americans whose wages are driven down by the tidal wave of below-minimum-wage workers. I honestly can't figure out where the balance should be.
On the flip side, the problem was solved with those ethnic groups when they were brought into unions with the people born in the U.S. That strategy seems to be what many of the unions are taking now which is why they do not oppose immigrants. Unfortunately, many unions are corrupt and inefficient right now, so it is possible that they are doing it purely as a way to get more dues rather than any real concern for immigrant or U.S. born workers.
As far as our immigration laws are concerned, they are not fair at all, and seem almost intentionally designed to make people suffer, rip them off, and destroy families. I won't go into a big rant on this right now, but consider the fact that undocumented immigrants often die on the way to coming here, or at least risk serious injury. Our immigration laws must be pretty bad if people end up risking death by freezing, lack of water, murder, or snakebite as an alternative. If all they had to do was get in a line, wait a few months, and pay some money, they would gladly do it. Any real immigration reform has to focus primarily on our horrible immigration policies, then on things like enforcement, border protection, dealing with employers, etc. Anything else simply doesn't work. It also helps those of us born in the U.S. because then we compete with these people on a level playing field economically, which is a benefit to everyone.- - - - - That's what I always say about you, boz, you have a good memory for random facts about pussy. -- joh3n[ Parent ]
But, yes, any first step has to involve a complete rework of the immigration laws.--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
I guess a lot of my opinions about unions come from a summer job I had at a nuclear power plant construction site - some of the stuff the unions got up to was as rapacious as anything I've seen since; and stupid since the blue collar guys were the ones who were going to be living in the fall out radius long after Bechtel packed up and moved away. --You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
Like I said though, I was never impressed with them based on most current union activities, but they are impressing me for their stance on immigration.- - - - - That's what I always say about you, boz, you have a good memory for random facts about pussy. -- joh3n[ Parent ]
To be honest, I was way over on the "throw open the borders" side of things until I saw all those idiot protestors waving Mexican flags on American streets. I mean, Christ, what message, exactly, are they trying to send?
Also, as someone who has both seen the protests and seen pictures taken by people who attended them in other cities, there were more American flags being flown. It's just that the media, especially the most right wing elements, always want to make the controversial elements appear as if they were the default thing. They ignore 20 American flags that people walking by carried and zoom in on the two Mexican flags and it becomes a big deal while neonazi talk radio hosts froth at the mouth with their idiotic reconquistadora white supremacist bullshit.
By the way, I'll be participating on the April 10th marches, and the organizations here in Houston that are putting it together have made it very clear that it's cool to bring Mexican and other nations flags, but even better to fly U.S. flags. As someone who at least sees what is going on here in Houston up close and personal, I can assure you that you are being mislead by what you see on the news.- - - - - That's what I always say about you, boz, you have a good memory for random facts about pussy. -- joh3n[ Parent ]
It's a damn stupid way to try and convince people that you're friendly and should be allowed to stay.--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
Both of which are valid points but, as I said, a stupid way to convince whitey that he should let them stay.--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
If the constitution say "the president can do X" then any law congress passes that says "the president can't do X without court approval" is unconstitutional and the president is not obligated to obey it.
So, the critical point is:
Does the President's authority and duty to defend the country extend to warrantless wiretaps? This is actually not clear to me. When I read Article II of the Constitution, I don't see any absolute powers in there; but I'm not a lawyer. I do know that every president since Carter (when FISA became law) has held that they can wiretap on non-americans all they want. In addition, the courts have sided with the President in the past. From a 2002 court case:
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable."
Which is a really interesting statement - they seem to be saying FISA is allowed to expand the president's powers but not limit them and, frankly, I'm not sure what that means.--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
In the present discussion:
(a) it is a matter of controversy over whether the consitution says that the president can do X
(b) even if it says that the president can do X, it is unclear over whether it also says that the president can't do X
(c) even if were if (a) and (b) don't obtain, it isn't altogether clear that the legislative branch is not able to restrict the fashion in which a sitting president must go about doing X.
But that's a far cry from, say, cam's position that Feingold is right "because he's a fucking legislator and Bush has to do what he's told". --You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
Take a look at Amendment 4:
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.
It can't be much clearer than that.
Because if I thought there was any actual, you know, facts, that said he was then I'd be pushing for impeachment.--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
This tends to fly in the face of the way our justice system was setup but I guess if one blindly goes along with the "9-11 changed everything" mantra then one wouldn't have any issues with this.
Between May 18, 1979, when the court opened for business, until the end of 2004, it [the FISA court] granted 18,742 NSA and FBI applications; it turned down only four outright. ... From 1979 through 2000, it modified only two out of 13,087 warrant requests. But from the start of the Bush administration, in 2001, the number of modifications increased to 179 out of 5,645 requests. Most of those—173—involved what the court terms “substantive modifications.” This friction—and especially the requirement that the government show “probable cause” that the American whose communications they are seeking to target is connected in some way to a terrorist group—induced the administration to begin circumventing the court.-- Close friendships and a private room can offer most of the things love does. [ Parent ]
Between May 18, 1979, when the court opened for business, until the end of 2004, it [the FISA court] granted 18,742 NSA and FBI applications; it turned down only four outright. ... From 1979 through 2000, it modified only two out of 13,087 warrant requests. But from the start of the Bush administration, in 2001, the number of modifications increased to 179 out of 5,645 requests. Most of those—173—involved what the court terms “substantive modifications.” This friction—and especially the requirement that the government show “probable cause” that the American whose communications they are seeking to target is connected in some way to a terrorist group—induced the administration to begin circumventing the court.
...
From 1979 through 2000, it modified only two out of 13,087 warrant requests. But from the start of the Bush administration, in 2001, the number of modifications increased to 179 out of 5,645 requests. Most of those—173—involved what the court terms “substantive modifications.”
This friction—and especially the requirement that the government show “probable cause” that the American whose communications they are seeking to target is connected in some way to a terrorist group—induced the administration to begin circumventing the court.
"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."
Requires that he upholds Congress's monopoly on legislation and to faithfully execute the laws that Congress makes (section 8).
Article II contains nothing about Bush being able to pull a Cincinnatus and claim tumultus suspending the constitution indefinately.
cam Freedom, liberty, equity and an Australian Republic[ Parent ]
FISA cannot override Bush's constitutional authority to defend the country.
Also, since I'm a smartass, if he really cared about defending the country, why would he allow himself to stay in office and keep making the world hostile to us? Also, why would he not simply go over to Afghanistan and look for bin Laden himself? I think Bush vs. al Qaeda people in hand to hand combat to the death would be a great idea. Either way, we win!- - - - - That's what I always say about you, boz, you have a good memory for random facts about pussy. -- joh3n[ Parent ]
Scope of legislative powers;
To exercise exclusive legislation in all cases whatsoever, .... To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.
From Feingold's censure motion;
Whereas the FISA act of 1978 states that it and the criminal wiretap law are the "exclusive means by which electronic surveillance" may becnoducted by the United States Government and makes it a crime to wiretap individuals without complying with this statutory authority. ... Whereas the President's inherent constitutional authority does not give him the power to violate the explicit statutory prohibition on warrantless wiretaps in the FISA Act of 1978; .. ..... has authorized and continues to authorize wiretaps by the NSA of Americans within the US without obtaining court orders required by the FISA act ...
Whereas the President's inherent constitutional authority does not give him the power to violate the explicit statutory prohibition on warrantless wiretaps in the FISA Act of 1978; ..
..... has authorized and continues to authorize wiretaps by the NSA of Americans within the US without obtaining court orders required by the FISA act ...
Not only did he break the law, he broke the doctrine of separation of powers which is essential in liberal democracy. Legislative makes laws, the executive (Presidency) implements and executes those laws. Executive Orders do not constitute legislation.
America has one of the purest forms of seperation of executive, legislative and judicial; don't give it away.
And, as an aside, I'm still waiting for someone to actually say "Bush wiretapped persons X, Y, and Z and that clearly violates FISA" instead of just blindly claiming that random unspecified Americans had their rights violated. --You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
Sorry, dude.--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
But I don't know of a single soul that argued that doing so wasn't within the power of Congress.
Aside from which, the power of impeachment of a sitting president is a case where the US Congress is granted extra-legislative power.
Consequently, I don't think you've got any real traction there.
But, yeah, it was just a cheap shot because he's taking such an absolute position. I mean, come on, "Bush broke the law because an actual U.S. Senator says he broke the law" is as moronic as saying that the president is never subject to Congressional authority.--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
Obviously, due to the fact that nobody really knows who they're wire-tapping, this isn't possible.
However, we're talking about a guy who thought about painting a US plane to look like a UN plane and flying it over Iraq in the hopes of luring Saddam into shooting it down so he could go to war. I don't think it out of the question that he would abuse his powers with something as silly as tapping someone's phones.
It's still a mystery to me why this never got any traction here in the USia. I'll bet the majority of the US citizens never heard about it.
Bush has no power to alter laws after they have been passed; as for the wiretapping scandal - I wait with bated breath your evidence that Bush broke the law, seeing how the FISA judges don't seem to think he did. --You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
PS: signing statements--- Now accepting suggestions for a new sigline[ Parent ]
Now, to your side of the argument - I found an interesting DOJ briefing on signing statements from 1993 that talks about all sides of the signing statement controversy. It indicates that the practice of using the statement to "create legislative history" was apparently invented by the Reagan administration - but that such history is of dubious value in a court case.--You're no good to me dead. Even half-alive would be socially awkward. - Hugh MacLeod[ Parent ]
What are these "riders" you speak of? Bush has no power to alter laws after they have been passed
Bush has no power to alter laws after they have been passed
In fact, Bush has used signing statements to reject, revise or put his spin on more than 500 legislative provisions. Experts say he has been far more aggressive than any previous president in using the statements to claim sweeping executive power - and not just on national security issues. ... "They don't like some of the things Congress has done so they assert the power to ignore it," said Martin Lederman, a visiting professor at the Georgetown University Law Center. "The categorical nature of their opposition is unprecedented and alarming."
as for the wiretapping scandal - I wait with bated breath your evidence that Bush broke the law, seeing how the FISA judges don't seem to think he did.
Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said.
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.
Politicians ignore it at their legal peril.
