Third Party & Independents Archives

Distractions, Distractions

With all the hullabaloo surrounding Dick Cheney’s recent blunder, it seems as though our focus has been diverted. Of course, that’s the point in the Bush Administration’s little shell game. We’ve been too busy obsessing over something that is relatively unimportant (on a national scale) to pay attention to Pat Robert’s new legislation to legalize warrentless spying and the impending repeat of the mistake Congress made when they passed the Patriot Act, only this time it’ll be permanent.

For your convenience:

nytimes.com
washingtonpost.com
abcnews.com

Let me begin by addressing the Senate Intelligence Committee's new approach to Bush's spying problem. There's a fundamental flaw here, and that is this: Bush violated current law when he began ordering wiretaps without court supervision back in 2002. When someone allegedly violates the law, especially the President of the US, there needs to be a full investigation, not a motion to make the previously illegal actions now legal. There's a reason the FISA court was created in the first place, and that's because warrentless wiretaps were found to be unconstitutional. I mean, is the FISA court so incredibly inconvenient that we need to waste all this time and taxpayer money to revise a system that provides the NSA with authorization for virtually any desired surveillance? Is the revision motivated by need? Hardly, since the FISA court has only rejected 5 requests since its inception. So what's the motivation? Perhaps it's an attempt to legitimize Bush's unconstitutional behaviour, or perhaps the administration is interested in something more sinister - consolidation of power.

I found the following quotes rather egregious:

"If some kind of inquiry would be beneficial to getting a resolution to this issue, then sure, we should look at it. But if the inquiry is just some kind of a punitive inquiry that really is not focused on finding a way out of this, then I'm not so sure that I would support that." --Chuck Hagel (R-Neb)

So, I guess we shouldn't be interested in keeping the Executive branch in check. Don't worry, just accept things as they are, and work to make it easier for him to do it again in the future.

"The administration has obviously gotten the message that they need to be more forthcoming," --Olympia Snowe (R-Maine)

Of course getting caught with your pants down would certainly make anyone anxious to appear as compliant as possible. But the administration's proposed oversight of their surveillance will consist of only a handful of Senators which is hardly what I would call 'forthcoming'. This all seems to be a thinly veiled move to increasingly consolidate the power of our government under the Executive.

Which brings me to my second piece of evidence, the suddenly swift progress towards the passage of the new, hardly-revised and permanent Patriot Act. Bill Frist seems confident that the Patriot Act renewal will pass as-is, with the strongest resistance coming from Russell Feingold. Feingold's group of resisters has evaporated after the Bush Administration made a few minor concessions, the (arguably) strongest of which is the right of a subpoena-ed individual to challenge their gag order about the subpoena after 30 days. Persons aren't even guaranteed the right to speak about their interactions with the government. All the government has to do is claim that yours is a matter of 'national security' and it is quite likely that your challenge will be denied. This modest 'civil rights' clause can hardly be seen as a compromise when compared the enormous amount of power wrapped up in the Patriot Act as a whole. Yet 'compromises' like this one, and other weaker provisions have convinced nearly all of the resisters to put aside the issues they had with the Patriot Act, which caused them to nearly let the act expire, and put them on track towards accepting a virtually unchanged and permanent Patriot Act.

What we have seen consistently from this administration is a blatant disregard for the constitution and the balance of powers which has kept our government (relatively) in check for the past couple centuries. I only fear the current administration because of the force which they have applied in gathering power to the presidency. However, I am much more concerned with our future candidates for presidential office. With so much power given to one man (and his followers), the position of president will be highly lucrative for aspiring dictators and power-hungry tyrants. This, in combination with the uncertainty of our own election process causes me great concern for the future of our nation. Please, although the outlook seems dim, contact your senators and urge them to vote against the renewal of the Patriot Act.

U.S. Senator's Contact Info

Posted by Andrew Parker at February 17, 2006 10:16 AM
Comments
Comment #126409

I sent a note to both of my Senators.

Posted by: tony at February 17, 2006 12:50 PM
Comment #126425

Andrew, excellent article! Five Stars, highest rating!

Allowing the president to get away with breaking the FISA laws and to break the fourth amendment at will is a complete and total outrage. The many unconstitutional provisions in the Patriot Act are a complete and total outrage.
Please people, act now. Contact your Senators and tell them you’re extremely angry that there will be no investigation into this illegal wiretapping. Tell them not to to vote on the renewal of the Patriot Act until they make it work in absolute concurrence with our Constitution.
Or watch America become a totalitarian state because you decided to say and do nothing at all.

Posted by: Adrienne at February 17, 2006 1:14 PM
Comment #126452

If your Senator is a Republican, remind him or her that this administration has set a precedent that future Democrats can, at best, adopt and at worst, expand.

Posted by: Joseph Ragsdale at February 17, 2006 1:55 PM
Comment #126461

while I find this abhorrent and will be writing to my senators I can’t help but find it a little ineffectual. I mean the Bush Admin is going to do what it wants against the law or no. Why bother having laws if they’re not going to be kept.

Posted by: chantico at February 17, 2006 2:06 PM
Comment #126465

As far as making the patriot act permanent: isn’t it only permanent until rescinded? Even the prohibition amendment was rescinded, by another amendment?

But how in the world can a congressional committee be more effective than the FISA court? This seems a little silly to me.

Wanting to pass a new law making it legal implies that it is illegal. Have I missed something?

The idea that they will do whatever they can to prevent any investigation is worrisome. Something stinks.

Posted by: womanmarine at February 17, 2006 2:14 PM
Comment #126467

chantico-

That type of thinking is what has assisted those in power in their quest for power over the masses. Its okay to stand up by yourself for a cause that you know is right. The goal is not the outcome, it is the fact that if you do nothing then you are still part of the problem. Until you get up and do something, no matter how ineffective, you will only be talk, and that’s the way the tyrants want it. Keep talking and debating, pay your taxes and watch TV, just don’t get out and start talking to people and begin acting on principles - that’s exactly what they want!

But in the end, it won’t be my words that convince you to do something proactive, it will have to be your own commitment and motivation. I hope you find them. (As long as abhorrent is an honest depiction of your feelings, I don’t doubt that they are within your grasp.)

Posted by: AParker at February 17, 2006 2:15 PM
Comment #126517

Aparker,
I’ve just written to my Senators asking them to vote this down. However, I was speaking more to my dismay that my efforts will make no difference. Odelay.

Posted by: chantico at February 17, 2006 3:22 PM
Comment #126521

To clarify:
When I say that my efforts will make no difference, I’m mainly saying that even if the legislation gets voted down and it’s maintained as illegal the Bush Admin will continue their activities regardless. It’s a sad state of affairs. Still hopefully this will get voted down to keep future honest leaders from abusing their power, the present is obviously a lost cause.

Posted by: chantico at February 17, 2006 3:24 PM
Comment #126565

Andrew:

“With all the hullabaloo surrounding Dick Cheney’s recent blunder,it seems as though our focus has been diverted. Of course, that’s the point in the Bush Administration’s little shell game.”

What a shame that you ruined a well written piece by first suggesting, as so many on the left have rabidly done, that anything the media focuses on is a diversion. I’m sure Cheney shot his friend as a part of a much greater strategy—-it sure must be nice to have friends willing to take a bullet (or at least bird shot) for the team, isn’t it.

I’ve said before that a problem the Dems have is they focus on too many issues, rather than on the important ones. They fight every battle, rather than judiciously picking and choosing their battles. But to blame the Bush admin for the excesses of the media is just plain silly.

The wiretapping issue seems to be fading away. Many Dems are now on record as wanting the wiretapping to be made undeniably legal, while also making sure that Presidents have to maintain better communication with Congress on such things. Its not just Republicans who think the wiretapping is acceptable and good—its Democrats as well.

Posted by: jeobagodonuts at February 17, 2006 4:48 PM
Comment #126619

JBOD —

It’s a mischaracterization to say that Democrats are coming into line with Republicans on this issue. Rather, they seem to be saying that a monitoring program is important, so long as it conforms to the law and has oversight. You know, like the original FISA law requires.

I’m tired of this issue being protrayed as if there is an even divide of authority in the legal community about this. The news shows, in an attempt to be evenhanded, always simultaneously interview one person who is for the Bush wiretapping, and another who is against it. It’s admirable that they attempt to show both sides of the issue, but it leaves one with the incorrect idea that there is a valid debate here. The fact is, the legal community has come out strongly against this program e.g. the ABA’s recent demand that the eavesdropping program conform to the requirements of law or cease.

(I apologize if this somehow double-posted, but something weird happened when I initially tried posting this, and I had to rewrite it…)

Posted by: Yossarian at February 17, 2006 6:36 PM
Comment #126699

The program dispute is primarily political and is now being handled that way. If the Dems don’t like it, they can make their opinions felt. That they are not doing it indicates that they don’t agree with their more extreme colleagues at moveon.com and in the blogosphere.

I told you all about this change in focus several days ago. Check the blog notes on the side.

Posted by: Jack at February 17, 2006 10:17 PM
Comment #126712

I loved the article. Though, I had one concern. I thought that the whole shooting incident was to divert attention from the CIA leak.

Actually, now that I think about it, I think the Watchdog author posting this article was trying to detract attention from detracting attention from the CIA leak, by writing that the shooting was to detract attention from the Patriot Act legislation.

Whew!

You can’t trust anybody.

Posted by: goodpoet at February 17, 2006 10:44 PM
Comment #126737

Yossarian:

I’ve asked in WB before if people had concerns about the wiretapping or the lack of oversight. A few in here simply can’t understand that there are multiple issues. At first there were Democrats who claimed the wiretapping itself was unconstitutional; now there are Democrats who are saying the wiretapping is okay, but they are not okay with the way Bush approved the wiretapping. Those are markedly different viewpoints.

There is disagreement in the legal community over the legality of Bush’s actions. Whether it sways more one direction than another isn’t substantive. What will be substantive is whether it goes to any court case, or whether the laws are changed to allow this kind of wiretapping.

Posted by: joebagodonuts at February 17, 2006 11:45 PM
Comment #126749

I just can’t help but wonder if the Patriot Act and NSA spying aren’t paving the way to insure this one party government remains a one party government in perpetuity, using unconstitutionally gathered intelligence to be leaked to the media against any and all threatening challengers for power. If both are allowed to continue as they are, there would be no way of knowing, let alone proving that such unconstitutional use was being perpetrated. That is the sinister nature of how both are currently being used without judicial review and in the name of so called “national security”. Hell, the color of my urine yesterday morning could be declared national security if the desire is there to make it so.

Posted by: David R. Remer at February 18, 2006 12:14 AM
Comment #126750

Excellent topic and article Andrew.

Posted by: David R. Remer at February 18, 2006 12:15 AM
Comment #126760

I wish my urine color could be declared a national security issue.

Posted by: Weary Willie's Bastard at February 18, 2006 12:32 AM
Comment #126768

Good point. This is just the right moment to try something else.

Posted by: d.a.n at February 18, 2006 12:56 AM
Comment #126788

JBOD —

I think you’re oversimplifying the Democratic objections.

1) Wiretapping isn’t necessarily unconstitutional. WARRRANTLESS wiretapping is unconstitutional. FISA provided a way to get a warrant, with the greatest of ease. So the difference you are seeing is predicated on your misunderstanding of the objection. It is perfectly coherent to say, “I don’t approve of this wiretapping program. It is unconstitutional. But wiretapping is an essential part of maintaining domestic security, and should be done.” To you, that may seem logically inconsistent, but the crux of that statement lay in this distinction: our proglem with THIS program is that it involves warrantless wiretapping. Wiretapping itself can be a valuable tool, but like any tool, if misused, it is dangerous.

2) Yes, there is disagreement in the legal community, just not much of one. Most seem to regard the arguments put forth in support of this program as fairly laughable. And consensus among experts and those with special training is usually fairly illuminating to most people.

3) The issue you raise of litigation before the Supreme Court is an important one, and one that should give you pause. The problem is that, with an entirely secret program without oversight, nobody can know the extent to which they have been injured by it, so no one can have standing to sue. This effectively insulates this issue from review by the Supreme Court. Neat trick, eh?

Posted by: Yossarian at February 18, 2006 1:51 AM
Comment #126862

That is the rub, isn’t it, Yossarian. The Catch-22 if you pardon the pun.

Posted by: David R. Remer at February 18, 2006 5:44 AM
Comment #126872

Yossarian:

I’m not a lawyer, but I don’t think “standing” applies directly as you suggest in a situation like this. I don’t think someone would need to have been wiretapped in order to claim that the program needed to be stopped. I think Congress could say that Presidential power had been overused and try to deal with it in that way.

In a similar way, look at the Cheney situation: the police decided not to weigh in with charges. It was their decision, not Whittington’s, even though Whittington had standing. It would appear that the police had some level of standing as well. It may not be a fully accurate comparison, but I think it illustrates what I’m talking about. Again, I’m not a lawyer.

What bugs me about Democratic statements is that they seem to be saying first that warrantless wiretaps are unconstitutional. I recognize that under FISA, you can wiretap for 72 hours without a wiretap, but you must still apply for one and then stop if it is not granted. To me, those don’t qualify as warrantless in the same way as the NSA wiretaps.

So, we have Dems saying the NSA wiretaps are unconstitutional, but at the same time saying the law should be changed to allow them. This would indicate that the problem they have is NOT with the wiretaps themselves being done without warrants, but rather with the idea that Bush approved wiretaps without warrants without consulting Congress enough.

Democrats are saying more than that they feel wiretaps are a necessary part of security. They are saying that the law should be changed to allow THIS kind of wiretaps, which they have categorized as warrantless. So they are saying they want warrantless wiretaps, which they have also said are unconstitutional. That’s what doesn’t add up for me.

Posted by: joebagodonuts at February 18, 2006 6:31 AM
Comment #126877

jbod, you are going to need to provide a link or contexted quote. I have not heard any Democrats call for warrantless wiretaps. Where are you getting this from?

Posted by: David R. Remer at February 18, 2006 6:47 AM
Comment #127028

JBOD —

I agree with David here — I’ve not heard a democrat say what you allege. If a democrat has said that, then I agree with you that it doesn’t add up.

And I don’t mean this to sound harsh, but your claim regarding standing is flatly wrong. The Supreme Court can’t just weigh in on government action as it sees fit — the action has to harm someone, and that someone has to sue and bring it before the Court.

I’m not sure of the analogy you’re trying to draw with the Cheney situation, but they aren’t really comparable. The state decides when to prosecute its own criminal law. That’s how state criminal law works. Rest assured that Whittington can sue in a civil case under tort law for compensation for his injuries if he so chooses.

I recognize that can seem a bit arcane if you don’t have training in law, but that’s the way it is. I could go into more detail, but it doesn’t really relate to this issue.

Posted by: Yossarian at February 18, 2006 1:37 PM
Comment #127325

Yossarian,
I like your example; however, I would say that ever American was hurt to find out that Our President and Vice President don’t seem to understand that it is the Show of Impropriety that tarnish The Sheild of Righteousness We the People have as a Nation & Society. As well as Individuals who have, are, and will serve this Grand Old Lady.

Thus, the problem is not the wire tapping for that issue should be left in the Military Realm of Law Enforcement. No, Oversight even if it conducted entirely behind closed doors is a necessary evil. Nevertheless, I do not think the Vice President should have a legal right to declassify information at self-will. In fact, I would say that Congress needs to design a way for someone to blow the wistle in the new law without putting the program at risk just to keep everybody honest.

Posted by: Henry Schlatman at February 19, 2006 5:58 AM
Comment #127371

Yossarian:

I stated that “Democrats are saying more than that they feel wiretaps are a necessary part of security.” Below are portions of a transcript from Jane Harmon, ranking Democrat on the House Intelligence Committee, who had been briefed on the NSA wiretapping program:

HUME: On December 21st when this program first came to light, you issued a statement that said, and I quote, “I believe the program is essential to U.S. national security and that its disclosure has damaged critical intelligence capabilities.” More recently, however, you have been critical of this program, saying — or at least critical of the way that Congress has been briefed on it.

HARMAN: Right.

HUME: And outline, if you will, your concerns about those briefings.

HARMAN: All right. Well, first of all, the program we were briefed on in a very closed environment in the White House, with no staff present, on a basis that we could not discuss it with anyone, was basically a foreign collection program. I still support that program. And I think the leak of that program to the New York Times and maybe elsewhere compromises national security…

HUME: You’re now saying, however, that those briefings were insufficient. Why did you not, if you didn’t, say so at the time andtake the matter to the president or whatever?

HARMAN: Fair question. And my answer, in hindsight, is that I came into an ongoing process. I believed that the legal framework was set, and the briefings were about the detail of the ongoing program. Remember, I support the program.

HUME: Do you think, then, that perhaps this program, which you say you support — are you suggesting that it may, indeed, be illegal?

HARMAN: Well, the foreign collection program that I know about I believe is legal and necessary.

Here is what I consider the penultimate part of the conversation:

HUME: Now, having said all that, does anything you know about this program, whether from being briefed about it or not, raise a question with you about whether this surveillance should have been undertaken? In other words, was this a necessary thing in your view, or was this not?

HARMAN: My answer to that is basically it is a necessary thing. We absolutely do want to know the plans and intentions of Al Qaedaand these copycat terrorist cells before they’re able to attack us. It’s a dangerous world. I think that the notion — and by the way, you don’t need a court warrant to do this — that we are listening to Al Qaeda operatives abroad and trying to understand what they’re planning to do is totally valid.

**FYI—in the sake of attempted brevity, these postings are excerpted. The full transcript is here: http://www.foxnews.com/story/0,2933,181012,00.html

As I read this, I am left with the impression that Harmon repeatedly says she is okay with the NSA wiretapping. She’s not okay with the briefing of Congress, but she is okay with the fundamental process of wiretapping. And she evens states that a warrant would not be needed.

Posted by: jeobagodonuts at February 19, 2006 9:50 AM
Comment #127484

Let me just clarify what seems to be a common misunderstanding (which stems from people trying to read between the lines, rather than just reading what I wrote.)

I never said that the purpose of the media focus on the Cheney shooting incident was to purposely distract from issues such as domestic surveillance or the Patriot Act. What I said was that regardless, we were/are distracted from more important issues.

Secondly, I could care less whether any of this is supported by Republicans or Democrats. Remember, this is the GREEN column, where we dislike both parties. (At least I do, I’m not trying to speak for anyone else, but this is my article.)

Posted by: AParker at February 19, 2006 3:39 PM
Comment #127485

JBOD

This strikes me as a poorly conducted interview. If Harman was as inconsistent as she appeared to be, surely a partisan hack like Hume would have pointed that out to her. But no matter.

The salient points of this interview are:

1) When she talks about listening to Al-Qaeda abroad, she is not talking about conversations in which an American is involved, and that is why there is no warrant requirement.

2) You quote what you call the “penultimate part” of the interview, where she was discussing coversations abroad that don’t implicate U.S. citizens, then omit the relevant ultimate part, in which she says that, if a conversation involves a U.S. citizen, wiretapping should only occur according to the existing FISA framework. You might want to read that part — it’s the one that occurs right after where your last excerpt ends.

So, you’ve left with what I regard as the wrong impression. What she does say repeatedly is that surveillance in which a U.S. citizen is one of the subjects should be done according existing law, i.e. FISA. You said that Democrats are calling for warrantless wiretaps, and this article seems to demonstrate the opposite. You have yet to prove your point.

I admit, there is some political hedging going on here, and some pretty obvious inconsistency on Harman’s part. Oddly, though, Hume seems to be getting her message loud and clear that she is AGAINST warrantless wiretaps. I certainly didn’t feel that her position was entirely clear from her remarks up to that point. Makes you wonder if that transcript is accurate. It is Faux News, after all.

If your point is that some few democrats are attemping to have it both ways when they say that they simultaneously believe that the current program must conform with law AND ALSO THAT it is legal at the same time, then you are absolutely correct. Harman is espousing a logically untenable position, if that is indeed what she was saying.

But many Republicans are guilty of similar political posturing, e.g. Arlen Specter vociferously demanding that the administration be called on to account for its activities, then when he gets a chance to demand such an accounting when Gonzales stands before a congressional committee, refusing to swear him in. Thus, he’s trying to cast himself as a principled Republican capable of breaking ranks with the administration when it is demonstrably wrong, but when he gets the chance to prove it… well, he doesn’t quite put his money where his mouth is.

In an election year, both parties are trying to show that they are sensitive to the concerns of reasonable, centrist Americans, while not betraying their party. On this issue, that just happens to be impossible, because one side is right, and the other is wrong. There is no middle ground.

Fact is, if you wanted a clear enunciation of the critique of this adminstration’s spying program, you could have gone with Daschle, whom I saw acquitting himself rather well on Meet the Press last Sunday (even though idiot Jay Rockefeller would barely let him speak), while Rockefeller was sputteringly unable to rationally defend the program, aside from getting angry and reiterating irrelevant points and unresponsive answers.

Even if it is the case that politicians are playing this issue to their political advantage, I’m not sure that that is what we were discussing. Let’s see if I can track this debate, because it seems to keep changing.

First, you claimed Democrats and Republicans were both beginning to come to the same position, that the wiretapping program is good. I disagreed.

Then you claimed that the position that wiretapping is OK, but that Bush’s wiretapping program was illegal, is a position that is inconsistent, or at least that is how I understood you. I showed you that this position is perfectly reasonable, because it hinges on the warrant requirement.

Most recently, your claim was that Democrats are now calling for warrantless wiretaps. The evidence you provide, in the form of a Brit Hume interview on Fox News, doesn’t seem to support that position.

So where does that leave us? Unfortunately, this is not a gray issue. FISA is a law that puts in place an enormously forgiving and deferential mechanism for approving wiretapping. The people who are evincing the cogent critique of the Bush administration’s program are the ones, like Daschle, who are saying that there is no good reason the Bush administration cannot operate within FISA’s extremely loose confines. I have heard no acceptable response to this argument.

Posted by: Yossarian at February 19, 2006 3:39 PM
Comment #127489

The real question is, have you contacted your senators regarding the Patriot Act? (Unless you’re urging them to support it, in which case I’d ask you to reconsider…)

Posted by: AParker at February 19, 2006 3:48 PM
Comment #127515

I have contacted my representatives, however, i remain doubtful of the efficacy of this strategy. when a law is broken, it can be amended; when the system is broken, it must be abandoned (those with the power to address the real problems facing our government will never willingly do so).

the democrats will not devolve power back to the states, nor will they eagerly return power to the separate branches - should they by some miracle regain power, they will use it to their (not our) own advantage.

with the past eight years in evidence, i think we can be certain of only one thing; whichever of the parties win the next round of elections, we will all lose (we already have).

that said, i shall continue to plague my representatives with disapproving emails in the hopes that i’m wrong. (cross your fingers, but don’t hold your breath)

Posted by: diogenes at February 19, 2006 5:34 PM
Comment #127517

(…eight years…err.. you know what i mean)

Posted by: diogenes at February 19, 2006 5:37 PM
Comment #127520

Yoss:

Let me be clear about where I stand on this, since it seems I haven’t been. I’ve said there are differences of opinion regarding the legality of the NSA wiretapping. I’ve also said that I’m okay with the wiretapping if its necessary to stop terrorist acts.

I’ve also said that IFFF Bush could have gone through FISA to get the information gotten through the NSA wiretaps, he would have had no reason not to. And politicians don’t tend to take politically dangerous steps for no reason.

Democrats have not stepped in to stop the NSA wiretapping. They have claimed that its necessary. But they also say its illegal. If its truly illegal, they should stop it immediately. Bush has admitted doing what they consider to be illegal, so why are they not stopping it? Because they see it as necessary, apparently.

Regarding Harmon, she spoke specifically of the NSA wiretapping program, of which she was apprised. She stated that knowing what she knows now, she still thinks the NSA wiretapping program is necessary. I’d have to agree with her on that.

Posted by: joebagodonuts at February 19, 2006 5:55 PM
Comment #127539

Womanmarine,

“As far as making the patriot act permanent: isn’t it only permanent until rescinded?”

Many (all? most?) provisions of the PATRIOT ACT had specific “sunset clauses” which state that a particular feature will automatically expire after x time unless specifically re-enacted.

It’s a common practice in this administratio to ramrod through controversial policies viz. the 2001 & 2002 tax cuts. They say, “Look, we can always let them expire…” and then “Letting these expire is unpatriotic.”

Posted by: Arr-squared at February 19, 2006 7:20 PM
Comment #127580

JBOD, you have to take her words literally. She knows what her words say and mean. She supports wiretapping of foreigners overseas. Nowhere in the interview, does she even imply she supports or ever supported wiretapping Americans without the need for a warrant.

The Pres. informed them, he was spying on foreigners with ties to al-Queda and terrorist organizations. She did not have a problem with that and in fact, the law does not require a warrant to spy on foreign enemies. It does require the warrant process of the FISA court when Americans are introduced into the wiretapping scenario.

As has been said, that interview either deliberately or inadvertently, never touched on the American wiretapping issue for her to respond to directly.

Posted by: David R. Remer at February 19, 2006 10:26 PM
Comment #127617

JBOD

“I’ve also said that IFFF Bush could have gone through FISA to get the information gotten through the NSA wiretaps, he would have had no reason not to. And politicians don’t tend to take politically dangerous steps for no reason.”

Ah, blind faith — a newcomer to the American political landscape, but where would the Bush administration be without it?

Bush would have no reason to ignore FISA, unless his showing of probable cause was so spurious that even the FISA court, a notoriously deferential near-rubber stamp of a procedural safeguard, would deny it. Which should cause us even more worry.

“Democrats have not stepped in to stop the NSA wiretapping…they see it as necessary, apparently.”

So we’re back to square one in this debate. Sigh. I’m beginning to wonder if rahdigly has started signing his posts with your name. Can we have JBOD back? He’s a pretty reasonable guy.

1) How exactly would the Democrats stop anything these days? They control no part of the government right now. They are drawing attention to the issue, and that is all they can do for the moment.

2) I’ve covered the “this program is illegal, but wiretapping is necessary” line before. Wiretapping may be necessary, but doing it to Americans without a warrant isn’t. Hell, I believe a person’s imprisonment for commission of violent crimes is necessary, but that doesn’t mean I think you should be able to do it without a trial.

3) What Mr. Remer said.

Posted by: Yossarian at February 19, 2006 11:50 PM
Comment #127688
Democrats have not stepped in to stop the NSA wiretapping.

JBOD, President Bush just strong-armed Republicans into voting against Democratic motions to investigate the illegal wire tapping.

It looks like Republicans will try to legalize the warrantless wiretaps and just forget the last four years ever happened. So much for checks and balances…

As for the rest, all we want is for the President to obey the law. Is that too much to ask?

Posted by: American Pundit at February 20, 2006 4:28 AM
Comment #127740

Yossarian:

You claim blind faith, but i argue logic. Think about it—if Bush could have gotten the information he wanted by going through FISA, why would he NOT do that? It would have been politically expedient. The only reasons I can think of are A)FISA would not have provided warrants B) FISA documents might have alerted Al Queda in some way C) Its a ruthless power grab by Bush. I think A is the most probable, which then begs the question of whether the NSA wiretaps have helped prevent attacks. If so, then I am for them, even if FISA would disallow them.

My original statement was this: “Democrats are saying more than that they feel wiretaps are a necessary part of security. They are saying that the law should be changed to allow THIS kind of wiretaps, which they have categorized as warrantless.”

In the attached link, http://www.nzherald.co.nz/section/story.cfm?c_id=2&ObjectID=10364960 John Kerry is quoted as saying, “We’re prepared to eavesdrop wherever and whenever necessary in order to make America safer.” But Kerry said the spying has to be legal and constitutional and if Bush needs the law to be changed, “then come to us and tell us… There is a way to protect the Constitution and not go off on your own and violate it.”

How is Kerry’s comment any different than what I said in my post? I said that Democrats are suggesting that the laws might need to be changed, which is precisely what Kerry said.

Allow me to ask you to answer the following:
Are you more concerned over the wiretapping itself or the fact that Bush approved it without what you consider proper consent?

The reason I ask is that there are two issues here. Some say this kind of wiretapping should never happen, because its unConstitutional. Others, like Kerry, are saying he wants any kind of wiretapping that makes America safer, BUT…he wants it done with Congressional approval. I’m sure you can see the difference between those two points.

And that is the proof that you and David asked for. You were proper to ask for it. I’ve now provided it.

Posted by: joebagodonuts at February 20, 2006 10:13 AM
Comment #127810

JBOD

Fair enough. Among your choices, A might be the most reasonable to you. But, since you’re demonstrating a willingness to hypothesize, I guess I’m expecting you to ask a few more questions after that. Why might FISA, a court that refused fewer than .1% (!!) of warrant requests in its history, refuse one from Bush? If his requests are denied, they must be beyond unreasonable.

I think Kerry’s statement amounts to nothing more than, if Bush believes that FISA constrains him in some way, the legislative and executive branches of government should work together to find a solution that is within constitutional bounds. If that mandates a change in law, then fine. But no matter what, things have to be overseen by SOMEONE, not just a handful of legislators who are bound to secrecy and unable to alter or affect his decisions in any way whatsoever.

“Are you more concerned over the wiretapping itself or the fact that Bush approved it without what you consider proper consent?”

Now we’re talking about me? OK. Before I was speaking for congressional Democrats, but my view is different. I think FISA gives the executive a fairly breathtaking array of arguably extra-constitutional power, and should be more than adequate to deal with just about any threat the U.S. faces that would require surveillance in order to deal with it. I think FISA may even go too far for me to be entirely comfortable, but I can deal with it, and for BushCo to claim it’s inadequate to deal with terrorism is absolute, fatheaded nonsense.

Moreover, it has nothing to do with what *I* consider proper consent. There was no consent, of any kind, proper or otherwise. And certainly no operation within the broad and forgiving contours of established law.

So the answer to your question is “both”, I suppose, but more column B than column A. I’m not wild about wiretapping in general (c’mon, I’m a defense attorney), but I find it baffling and hugely suspicious that Bush would ignore the law in this instance, especially when the law is so unbelievably flexible.

Posted by: Yossarian at February 20, 2006 1:27 PM
Comment #127885

Yossarian:

I had no idea you were a defense attorney. May your e-mails soon be deluged by lawyer jokes.

Your comments about Kerry lead me to believe that I’ve not made my point clear. There are two clearly defined points of view that are radically different: 1) Wiretapping without a warrant is never acceptable and 2) Wiretapping without a warrant is acceptable, but only with proper oversight.

You seem to agree more with Option 2, considering that you said that Fisa might go too far, but you can live with it.

I said initially that Democrats were starting to say that warrantless wiretaps might be okay. You and David jumped on me to prove that, and I provided Jane Harmon (possibly wrongly) and John Kerry (very correctly) as my proof. Kerry isn’t saying that warrantless wiretaps are out of the question—he’s saying that warrantless wiretaps without oversight are out of the question. So its not the wiretapping, but the lack of oversight that he feels is wrong.

What gets me is that some Democrats are saying that warrantless wiretaps are unConstitutional, yet here is Kerry saying essentially “We can just change the law to make them okay, if necessary.” Well, either they are unConstitutional or not.

If his requests are denied, they must be beyond unreasonable. blockquote>

I disagree with this premise. Just saw a movie over the weekend called “Video Voyeur”, based on a true story. A guy installs hidden video equipment and then videotapes a couple having sex, people changing clothes, going to the bathroom etc, but with no sound. Happened in the late 1980’s, I believe. The law was not current with technology, and stated that wiretapping at that time was illegal, but since there was no sound, this did not qualify as wiretapping. There were no laws on the book to prevent this obvious intrusion on privacy.

The point is that just as laws were not current with technology in the movie, neither is FISA is necessarily up to date with current technology. I haven’t yet said that the NSA wiretapping is a good thing—-what I’ve said is that if it helps prevent attacks, then I’m for it. If it in fact is worthless in doing so, then I’m against it. I guess that puts me in the “end justifies the means” on this one.

Posted by: joebagodonuts at February 20, 2006 4:08 PM
Comment #127959

JBOD

We must be talking past each other here.

Kerry’s quote doesn’t demonstrate what you think it does. Once again, you’ve quoted a source a bit…creatively. Immediately before the part you quote, he says:

“What he’s (Rove) trying to pretend is somehow Democrats don’t want to eavesdrop appropriately to protect the country. That’s a lie.”

Note — APPROPRIATELY. In your own quote, he says that whatever scheme gets adopted, it has to be subject to the Constitution. Nowhere does he say he’s for warrantless wiretaps. And the second quote you have above merely demonstrates that Kerry believes there might be some new way for the legislative and executive branches to work together to create a legal framework that Bush would be willing to use, rather than just ignore, one that is still consistent with the Constitution. He NEVER says, “Let’s make warrantless wiretaps legal”, nor anything equivalent to that. Ever. Not once.

I think you’re bending over backwards to read into these people’s statements, both those of Harman and Kerry, some kind of logical inconsistency that just isn’t there. It’s rather simple, really, so let’s go over it one more time:

1) Wiretapping is useful. The Democrats seem to want it.

2) BUT it must heed constitutional prohibitions, i.e. it can’t be warrantless.

3) If FISA is truly defective, then Democrats are willing to entertain new legislation that is consistent with Consititutional requirements, and are willing to work with the President to hammer out such a new framework. But the end result still has to be constitutional, or they won’t’ support it.

See?

Man alive, I’d LOVE to have 12 Bush apologists on my jury during my next trial! Whenever somebody breaks the law, rather than saying, “There’s something wrong with this person’s actions”, they say, “There must be something wrong with this law.” Or maybe that’s just when BushCo is involved…

“2) Wiretapping without a warrant is acceptable, but only with proper oversight.”

Kind of. I don’t support warrantless wiretaps. Working within FISA furnishes warrants. Warrants are a method of judicial oversight. I guess that’s a relatively minor distinction, so you’re basically correct.

“The point is that just as laws were not current with technology in the movie, neither is FISA is necessarily up to date with current technology.”

Again, this indicates a mindset that is inordinately sympathetic to the administration’s stance. I’ve heard nothing to indicate that the problem here has to do with technological advance outstripping the legal framework. The current round of justifications seem to revolve around how time-consuming complying with FISA is, which is a perplexing argument considering it can be complied with retroactively. Moreover, FISA has been updated in recent years, so I’m pretty certain this argument doesn’t hold water.

Posted by: Yossarian at February 20, 2006 7:21 PM
Comment #128001

“Its a ruthless power grab by Bush”

regardless of options A or B, C is a definite. while i have major issues with wiretapping, this is not the real issue at hand. bush has basically stated, through his actions and justifications, that;
1. the president has unlimited powers in a time of emergency and,
2. america has been in a state of emergency, and will continue to be in a state of emergency for the foreseeable future. this is now ‘the long war’.

this is not a partisan issue, nor a civil rights issue. whether by design or coincidence, this administration has set up the infrastructure for tyranny. someone will take advantage, it’s a matter of time, and it won’t matter if they claim to be a republican or a democrat.

the entire respectable legal community recognizes no debate on this matter. the debate that the administration claims exists is a preposterous fabrication. they have broken the law. the potential future legality of warrantless wiretaps bears no relevance here.

there is no skirting this issue - no appeasing the legislature while upholding the president’s right to single-handedly enact law - either this administration must be held accountable for this egregious crime, or the precedent will be set. presidents will have indefinitely unlimited power.

Posted by: diogenes at February 20, 2006 9:26 PM
Comment #128019

Yossarian:

I’m guessing you are very successful as an attorney. You do a great job of telling what you think someone is saying, regardless of what they are saying.

Kerry specifically says that we need to be able to wiretap whenever and wherever we need to. He also says it needs to be legal. AND….he says that if the laws need to be changed in order to make necessary wiretapping legal, then that can happen as well.

If the laws get changed to accommodate the actions, then its all okay with him. That suggests that its not the wiretapping that he has problems with as much as the lack of oversight.

I think we’ve beaten a dead horse here. But for the sake of clarity, I’ll restate my position for a final time.

I don’t know that FISA would allow for the kind of wiretapping that is being done—I’m guessing it wouldn’t or Bush would have gone through FISA. But if it would not allow for it, and if the NSA wiretapping has prevented terrorist attacks, then I’m for them. I’d prefer the laws to be changed to unequivocally allow for it, but I also consider that the legality or illegality of Bush’s actions is yet to be fully determined. I’ll take a President who acts to protect the people, even if he steps too far in that direction, over a President who wouldn’t go far enough.

Posted by: joebagodonuts at February 20, 2006 10:23 PM
Comment #128067

“I don’t know that FISA would allow for the kind of wiretapping that is being done”

irrelevant.

“I’d prefer the laws to be changed to unequivocally allow for it”

currently, the laws unequivocally disallow for it.

“… but I also consider that the legality or illegality of Bush’s actions is yet to be fully determined.”

only in the sense that he has yet to be tried. he is innocent until proven guilty, obviously; however, considering his confession, the trial is only a formality.

the notion that the president has emergency powers which allow him to dismiss acts of congress - or pick and choose the instances which he will recognize them - is untenable and exceedingly dangerous.

do we need to pass legislation prohibiting bush from committing murder, or may we reasonably assume that he is subject to the law as a citizen of the united states? the presidency does not confer upon a citizen the right to flout the law. the substance of bush’s argument is, again, that he is above the law, as the president in a time of emergency - this is entirely fallacious.

there are admittedly always at least two sides to any argument, and in law, there is often a lot of gray area. here, there are two sides, correct and grossly incorrect - no gray.

- just because there are two sides to an issue does not mean that both sides merit consideration. naturally there are a few lawyers who will argue the legality of bush’s actions - if they weren’t willing to try, they wouldn’t be very good lawyers, and bush wouldn’t have hired them.

the question is whether there are any republicans objective enough to acknowledge the crime, indict, and impeach. there is no question as to the criminality of bush’s actions.

Posted by: diogenes at February 21, 2006 12:51 AM
Comment #128114

diogenes:

I’ve linked to articles discussing the legal issues at stake regarding the NSA wiretaps before. Suffice it to say that there are prominent liberal minded lawyers who suggest that Bush’s actions are legal. This is different from saying they agree with the actions, but nonetheless, they argue for the legality of his actions. Being that they are more versed in the law, the Constitution, FISA, UAMF etc than I am, I’m willing to accept their ideas into the equation.

My personal preference would be that a President does not have unfettered power. I welcome a level of oversight. But I also welcome successful strategies. I don’t see the nefarious goal in these actions that you and others apparently do, but nonetheless, I see the potential for abuse down the road. I see our system as very strong, and I do NOT see Congress allowing this President or future Presidents unfettered powers—this is good.

To David, Yossarian and diogenes: Thanks for your viewpoints. I’ve enjoyed the discussion and your thoughts. I believe I’ve stated my point as well as I can, even to the point of restating it and that I understand your thoughts completely. I doubt further posts on the subject will illuminate any new ideas. Be well.

Posted by: joebagodonuts at February 21, 2006 5:39 AM
Comment #128351

i cannot ‘suffice it to say’ - i haven’t heard even a minutely adequate argument in defence of the legality of bush’s actions (because they are blatantly illegal).

personally, i do not believe that bush has nefarious intentions - this is not a concession pertaining to bush’s benevolent nature so much as a question of his competence in constructing and executing such an elaborate plot.

so, my main concern lies in the potential for abuse by future presidents, who might be both more adept and pernicious in purpose. they might have immensely “successful strategies”, but that does not mean that their ‘strategies’ are in the best interest of this country.

forgive me for belaboring an argument with which you have apparently finished - but i entered into the fray a bit late.

… be well.

Posted by: diogenes at February 21, 2006 9:04 PM
Comment #128415

JBOD

Fine, here’s the last salvo from me.

I think this is an exercise in simple reading comprehension. The Kerry quote, as excerpted by you:

“We’re prepared to eavesdrop wherever and whenever necessary in order to make America safer.” But Kerry said the spying has to be legal and constitutional and if Bush needs the law to be changed, “then come to us and tell us… There is a way to protect the Constitution and not go off on your own and violate it.”

Imagine if I said: “I would do ANYTHING to get a tricycle, and I mean ANYTHING. But, it has to be legal.”
I am not saying that I would blow up a busload of nuns for a tricycle. I am stating a commitment, and stating the depth of that commitment, while giving the caveat that my actions will always be constrained by law. What Kerry is saying is no different: he supports wiretapping in any situation, as long as it is legal and Constitutional.

Also, Kerry claimed that if Bush needs the law changed, they can find a way to work together to find a new way for him to get what he wants. But that need, according to what Kerry said, is always constrained by the Constitution.

This is really not too complicated. I don’t think that I’m the one here who’s bending over backwards to twist his words around…

The other point you’re missing: to say something needs oversight is the same as requiring warrants. Warrants are a method of oversight for the judiciary.

And I can’t take your statement that your personal preference is that the President not have unfettered power too seriously. Currently, what type of oversight is possible over this president? Moreover, FISA is a fairly minimal type of oversight, and if you don’t support working within it, then it’s not overly reductionist to say that you’re pretty much in favor of the Imperial Presidency.

OK, that’s it. Until next time, and take care.

Posted by: Yossarian at February 22, 2006 1:28 AM
Comment #128450

diogenes:

Thanks for your viewpoints. If you are interested in how Bush’s actions might be legal, I’d suggest you google Cass Sunstein or the Volokh Conspiracy- you should be able to dredge up alternate opinions if you want to pursue it.

Yossarian:

With Kerry, I think its fair to suggest that he wants it both ways, as is his habit. I see how one could take it your way, and I see how one can take it mine. Senators in general straddle fences often; Kerry has made it an art form, in my opinion.

Thanks for the debate.

Posted by: joebagodonuts at February 22, 2006 7:54 AM
Comment #128561

i know the arguments - they are invalid. not based on sound logic or reality.

the law is clear - those who falsely believe there is an argument to be made must take large liberties to support this contention, stretch the meaning, attempt to reinterpret the wording and intentions of those who developed the law, etc. in the end, the argument invariably falls on the inherent right of the president to break (or make) law in times of emergency. this is diametrically opposed to the intentions of our founding fathers, and blatantly false.

i respect anyones right to disagree, but only insofar as i have the right to disagree that bush is my president. one can believe what they wish, regardless of the reality of the situation.

i don’t mean to sound abrasive, there is simply no room for compromise regarding the rule of law.

Posted by: diogenes at February 22, 2006 2:03 PM
Comment #128596

diogenes:

Perhaps you ought to take your arguments up with the legal scholars who feel there is ambiguity in the situation. I don’t claim to be a legal nor Constitutional scholar. I only claim that there are legal and/or Constitutional scholars who take both sides of the argument. Furthermore, I mentioned Cass Sunstein specifically because he is well known as a liberal and as someone who doesn’t particularly like Bush.

Because of that, he wouldn’t have much reason to support the administration arguments saying the wiretapping is legal. He’d be more likely to take an opposing view. That he doesn’t suggests to me there is far more to the issue than you are willing to discuss. For you, its a closed issue. For legal scholars, it apparently remains open.

Posted by: jeobagodonuts at February 22, 2006 3:14 PM
Comment #128657

i have looked into both Cass Sunstein and the Volokh Conspiracy - the former makes a convoluted case for debate on the matter without specifically favoring either side - the substance of which is still predicated on the alleged unlimited inherent power of a president in a time of emergency. i have yet to find anything relevant on the latter….

please feel free to correct me, but…

as i believe i have said, this myth of inherent unlimited powers is contrary to the intentions of the founding fathers in their formation of our great nation, as well as the legislators that outlined *exactly* how bush would be allowed to utilize wiretaps. there is no justification for bush’s actions short of a supreme court ruling - hence, illegal…

sunstein notes that the supreme court has yet to make a ruling on such inherent powers - the absence of a precedent does not constitute authorization (if anything, it does the opposite). furthermore, there is an intrinsic contradiction in expecting the supreme court to produce a ruling on this issue;

in order for the supreme court to decide on this matter, a case *must be brought before them*. in order for this to happen, an individual who felt this wiretapping was an infringement on their rights would have to sue. considering that no one knows who has been tapped and to what extent, etc…. no one is able to bring forth such a case.

the supreme court can’t simply state ‘there are no such inherent powers’ without such a case being brought before them… and the president holds that such information is an issue of national security, conveniently and falsely.

there must be an independent investigation, and any attempts by this administration to interfere, or to be noncompliant, must be treated as obstruction of justice. by the logic of the bushies’ favored argument - if bush has done nothing wrong, he should have nothing to fear.

the issue of national security is a nonstarter. safeguards could easily be built into such an investigation, and the only security at risk is bush’s. the vast majority of legal scholars recognize this, and i question the motivations and competency of the very few who disagree.

there will always be dissenters, that does not mean they are worth listening to. if we were to confer equal weight to every opinion, and hold off investigation into any issue until the ruling was unanimous - firstly, there would be no need for an investigation or trial, and secondly, there would never be any investigations because unanimity is an impossibility.

if bush is allowed to slide on this issue, the precedent *will* be set. inherent, indefinite, unlimited power. hence, my concern.

Posted by: diogenes at February 22, 2006 5:48 PM
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