The Right to Privacy: A strategy from the Left [Archive]

Kefka

12-23-2005, 11:32 AM

By Michelle Malkin

Says it all. Wasn't that the chick that got talked down to by Chris Mathews on his show?

MATTHEWS: Do you think Massachusetts politics is softball?

BROWN: I think Massachusetts politics is always been very respectful of the other person‘s view and very committed to the idea they don‘t want to seem negative and they don‘t want to be criticized for an absence of integrity.

MALKIN: He is a boy in the bubble, Chris. And...

MATTHEWS: What does that mean?

MALKIN: He hasn‘t been subjected to this kind of heat. And as Willie Brown is suggesting, if he can‘t stand the heat from his fellow veterans, do we really want to trust him to stand up to Islamic extremists?

By the way, it‘s not just—not just these right wingers who have been questioning his record. The “Boston Globe” isn‘t, aren‘t operatives of the Bush campaign and they have said the same thing as the veterans did about all three incidents regarding the purple hearts. You were hammering Larry Thurlow about specific name.

BROWN: He volunteered twice. He volunteered twice in Vietnam. He literally got shot. There‘s no question about any of those things. So what else is there to discuss? How much he got shot, how deep, how much shrapnel?

MALKIN: Well, yes. Why don‘t people ask him more specific questions about the shrapnel in his leg. They are legitimate questions about whether or not it was a self-inflicted wound.

(CROSSTALK)

MATTHEWS: What do you mean by self-inflicted? Are you saying he shot himself on purpose? Is that what you‘re saying?

MALKIN: Did you read the book...

MATTHEWS: I‘m asking a simple question. Are you saying that he shot himself on purpose.

MALKIN: I‘m saying some of these soldiers...

MATTHEWS: And I‘m asking question.

MALKIN: And I‘m answering it.

MATTHEWS: Did he shoot himself on purpose.

MALKIN: Some of the soldiers have made allegations that these were self-inflicted wounds.

MATTHEWS: No one has ever accused him of shooting himself on purpose.

MALKIN: That these were self-inflicted wounds.

MATTHEWS: Your saying there are—he shot himself on purpose, that‘s a criminal act?

MALKIN: I‘m saying that I‘ve read the book and some of the...

(CROSSTALK)

MATTHEWS: I want an answer yes or no, Michelle.

MALKIN: Some of the veterans say...

MATTHEWS: No. No one has every accused him of shooting himself on purpose.

MALKIN: Yes. Some of them say that.

MATTHEWS: Tell me where that...

MALKIN: Self-inflicted wounds—in February, 1969.

MATTHEWS: This is not a show for this kind of talk. Are you accusing him of shooting himself on purpose to avoid combat or to get credit?

MALKIN: I‘m saying that‘s what some of these...

MATTHEWS: Give me a name.

MALKIN: Patrick Runyan (ph) and William Zeldonaz (ph).

MATTHEWS: They said—Patrick Runyan...

MALKIN: These people have...

MATTHEWS: And they said he shot himself on purpose to avoid combat or take credit for a wound?

MALKIN: These people have cast a lot of doubt on whether or not...

MATTHEWS: That‘s cast a lot of doubt. That‘s complete nonsense.

MALKIN: Did you read the section in the book...

MATTHEWS: I want a statement from you on this program, say to me right, that you believe he shot himself to get credit for a purpose of heart.

MALKIN: I‘m not sure. I‘m saying...

MATTHEWS: Why did you say?

MALKIN: I‘m talking about what‘s in the book.

MATTHEWS: What is in the book. Is there—is there a direct accusation in any book you‘ve ever read in your life that says John Kerry ever shot himself on purpose to get credit for a purple heart? On purpose?

MALKIN: On.

MATTHEWS: On purpose? Yes or no, Michelle.

MALKIN: In the February 1969 -- in the February 1969 event.

MATTHEWS: Did he say on it purpose.

MALKIN: There are doubts about whether or not it was intense rifle fire or not. And I wish you would ask these questions of John Kerry instead of me.

MATTHEWS: I have never heard anyone say he shot himself on purpose.

I haven‘t heard you say it.

MALKIN: Have you tried to ask—have you tried ask John Kerry these questions?

MATTHEWS: If he shot himself on purpose. No. I have not asked him that.

MALKIN: Don‘t you wonder?

MATTHEWS: No, I don‘t. It‘s never occurred to me.

Look, thank you Mayor Brown. We‘ll stay with Michelle Malkin.

Still ahead, David Gergen and Dana Milbank on the battle for the White House. We are going to keep things clean on this show. No irresponsible comments are going to be made on the show.

http://www.msnbc.msn.com/id/5765243

Yes. Yes it is.

Gan

12-23-2005, 11:34 AM

Another interesting article concerning the debate of the wiretaps and the right to privacy.

This is a re-print of a Washington Post article I found on a conservative website: try to look beyond the site as Backlash is so fond of saying and read the information therein:
SOURCE OF ARTICLE REPRINT (http://realclearpolitics.com/Commentary/com-12_23_05_CK.html)

December 23, 2005
Impeachment Nonsense
By Charles Krauthammer

WASHINGTON -- 2005 was already the year of the demagogue, having been dominated for months by the endlessly echoed falsehood that the president ``lied us into war.'' But the year ends with yet another round of demagoguery.

Administration critics, political and media, charge that by ordering surveillance on communications of suspected al Qaeda agents in the United States, the president had clearly violated the law. Some even suggest that Bush has thereby so trampled the Constitution that impeachment should now be considered. (Barbara Boxer, Jonathan Alter, John Dean and various luminaries of the left have already begun floating the idea.) The braying herds have already concluded, Tenet-like, that the president's actions were slam-dunk illegal. It takes a superior mix of partisanship, animus and ignorance to say that.

Does the president have the constitutional authority to conduct warrantless searches against suspected foreign agents in the United States? George Washington University law professor Orin Kerr (one critic calls him the man who ``literally wrote the book on government seizure of electronic evidence'') finds ``pretty decent arguments'' on both sides but his own conclusion (http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722) is that Bush's actions were ``probably constitutional.''

In 1972, the Supreme Court required the president to obtain warrants to eavesdrop on domestic groups, but specifically declined to apply this requirement to snooping on foreign agents. Four appeals courts have since upheld presidential authority for such warrantless searches. Not surprisingly, the executive branch has agreed.

True, Congress tried to restrict this presidential authority with the so-called FISA law of 1978. It requires that warrants for wiretapping of enemy agents in the U.S. be obtained from a secret court. But as John Schmidt, associate attorney general in the Clinton administration, writes (http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed): ``Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms.'' Indeed, Clinton's own deputy attorney general testified to Congress that ``the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes,'' then noted a few minutes later that ``courts have made no distinction between electronic surveillances and physical searches.''

Presidents always jealously guard executive authority. And Congress always wants to challenge the scope of that authority. This tug-of-war is a bipartisan and constant feature of the American system of separation of powers. President Bush's circumvention of the FISA law is a classic separation-of-powers dispute in the area in which these powers are most in dispute -- war powers.

Consider the War Powers Resolution passed over Nixon's veto in 1973. It restricts, with very specific timetables, the president's authority to use force. Every president since Nixon, Democrat and Republican, has regarded himself not bound by this law, declaring it an unconstitutional invasion of his authority as commander in chief.

Nor will it do to argue that the Clinton administration ultimately accepted the strictures of FISA law after a revision was passed. So what? For the last three decades, presidents have adhered to the War Powers Resolution for reasons of prudence, to avoid a constitutional fight with Congress. But they all maintained the inherent illegitimacy of the law and the right to ignore it. Similarly, Clinton's acquiescence to FISA in no way binds future executives to renounce Clinton's own claim of ``inherent authority'' to conduct warrantless searches for purposes of foreign intelligence.

Attorney General Alberto Gonzales chose a different justification for these wiretaps: They were covered by the congressional resolution shortly after 9/11 authorizing the use of ``all necessary and appropriate force'' against al Qaeda. Gonzales' interpretation is based on a plurality Supreme Court opinion written by Sandra Day O'Connor that deemed legal the ``executive detention'' of U.S. citizen and enemy combatant Yaser Hamdi. ``Detention'' is an obvious element of any authorization to use force. Gonzales argues that so is gathering intelligence about the enemy's plans by intercepting his communications.

I am skeptical of Gonzales' argument -- it implies an almost limitless expansion of the idea of ``use of force'' -- while the distinguished liberal law professor, Cass Sunstein, finds (http://uchicagolaw.typepad.com/faculty/2005/12/presidential_wi.html) it ``entirely plausible'' (so long as the wiretapping is limited to those reasonably believed to be associated with al Qaeda). Sunstein maintains that ``surveillance, including wiretapping, is reasonably believed to be an incident of the use of force'' that ``standardly occurs during war.''

Contrary to the administration, I also believe that as a matter of political prudence and comity with Congress, Bush should have tried to get the law changed rather than circumvent it. This was an error of political judgment. But that does not make it a crime. And only the most brazen and reckless partisan could pretend it is anything approaching a high crime and misdemeanor.

© 2005, Washington Post Writers Group

[Edited on 12-23-2005 by Ganalon]

CrystalTears

12-23-2005, 11:43 AM

Copied from some of my evil blog groups:

Drudge on the case of liberal spying hypocracy

http://www.drudgereport.com/flash8.htm

http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed

http://www.drudgereport.com/flash7.htm

http://www.cato.org/pubs/pas/pa-271.html
Clinton's eavesdropping and other non-Constitutional activities.

http://www.proteinwisdom.com/index.php/weblog/entry/19555/
Dems are shooting themselves in the foot.

http://www.fas.org/irp/offdocs/eo12139.htm
EO 12139 by Jimmy Carter, who is, if I recall correctly, a Democrat.

TheRoseLady

12-23-2005, 11:47 AM

My god, is this all that we're going to see, reposts of conservative articles and links and links?

Read the stuff and formulate your own opinion. I'd much rather read what you think than what someone who gets paid to stir up dirt has to say.

CrystalTears

12-23-2005, 11:49 AM

Originally posted by TheRoseLady
Read the stuff and formulate your own opinion. I'd much rather read what you think than what someone who gets paid to stir up dirt has to say.

I did form and state my own opinion, and got nothing but shit for it. So why bother to continue and just joke around with Ganalon with some links. :P

Back

12-23-2005, 11:50 AM

Gan

12-23-2005, 11:57 AM

Originally posted by Backlash
The first post is completely unnecessary. Tell me how is that bullshit productive other than being jack-off material for liberal-haters?
:lol: I knew you'd like the first one Backlash. I posted it especially for you.

Originally posted by Backlash
The op-ed from the conservative source, while coming off like a typical GOP damage control piece, is at least trying to be civil and presenting some facts.
You're falling into the discredit the source trap. Follow the links to the ones mentioned, such as Orin Kerr, John Schmidt, or Cass Sustein and read their opinions... or are they suspect too?

Originally posted by Backlash
I don’t know if the whole wiretapping issue is illegal but I do know that it is not a partisan issue and maybe even less about actual wiretapping and privacy. Senators, Representatives and judges from both sides have taken issue with this because the executive branch excluded them from the process.
What it boils down to is a fight between the executive branch and the powers given it by the constitution versus the powers enacted by congress that puts limitations on constitutional powers [of the executive branch].

The legality of it appears to be based on interpretation of the constitution and the explicit and implied powers granted to the executive branch.

[Edited on 12-24-2005 by Ganalon]

TheRoseLady

12-23-2005, 12:01 PM

Originally posted by Ganalon
The legality of it appears to be based on interpretation of the constitution and the explicit and implied powers granted to the executive branch.

Quickly, do you feel that the President can alter or skirt laws (any laws) even those put forth in our Constitution as he sees fit? Not just W here, but any President.

Gan

12-23-2005, 12:03 PM

Originally posted by TheRoseLady
My god, is this all that we're going to see, reposts of conservative articles and links and links?

Read the stuff and formulate your own opinion. I'd much rather read what you think than what someone who gets paid to stir up dirt has to say.

Actually, my reposts are setting the tone for some personal observations. Unlike those who spew their opinion before reading up on some varying perspectives, I try to look at more than the liberal opinions that have been vomited in the other threads about the whole wire tapping issue.

Unlike some of the other posts, I've found some articles that I agreed with and instead of just expecting you to take my word for it (because I'm not a self proclaimed expert), I'm offering up something extra.

Gan

12-23-2005, 12:04 PM

Originally posted by TheRoseLady

Originally posted by Ganalon
The legality of it appears to be based on interpretation of the constitution and the explicit and implied powers granted to the executive branch.

Quickly, do you feel that the President can alter or skirt laws (any laws) even those put forth in our Constitution as he sees fit? Not just W here, but any President.

In the Constitution? No. Unless he is given expressed and explicit permission to do so by the Constitution in another part. Then its up to judicial review as the balance of powers perscribes.

Passed by Congress? Yes, in certain circumstances. [Edited to add: in most circumstances where the balance of power is surpassed]

[Edited on 12-23-2005 by Ganalon]

Back

12-23-2005, 12:07 PM

Originally posted by Ganalon

Originally posted by Backlash
The first post is completely unnecessary. Tell me how is that bullshit productive other than being jack-off material for liberal-haters?
:lol: I knew you'd like the first one Backlash. I posted it especially for you.

Originally posted by Backlash
The op-ed from the conservative source, while coming off like a typical GOP damage control piece, is at least trying to be civil and presenting some facts.
You're falling into the discredit the source trap. Follow the links to the ones mentioned, such as Orin Kerr, John Schmidt, or Cass Sustein and read their opinions... or are they suspect too?

Originally posted by Backlash
I don’t know if the whole wiretapping issue is illegal but I do know that it is not a partisan issue and maybe even less about actual wiretapping and privacy. Senators, Representatives and judges from both sides have taken issue with this because the executive branch excluded them from the process.
What it boils down to is a fight between the executive branch and the powers given it by the constitution versus the powers enacted by congress that puts limitations on constitutional powers.

The legality of it appears to be based on interpretation of the constitution and the explicit and implied powers granted to the executive branch.

Well I still prefer Ann Coulter (http://www.townhall.com/opinion/columns/anncoulter/2005/12/21/180063.html) because she really is over-the-top.

I didn’t question the source of the op-ed or the implications it made. I read it with an open mind and mostly agreed with the author in the last paragraph with the exception of saying I don’t know if it was illegal or not, but if it turns out to be, then someone needs to be held accountable.

Gan

12-23-2005, 12:09 PM

Originally posted by Backlash but if it turns out to be, then someone needs to be held accountable.

To that we agree upon undisputably.

TheEschaton

12-23-2005, 12:51 PM

The question here is not whether wiretapping is illegal or not on foreign nationals, like your Krauthammer article (and BTW, great source, FTL). The President can authorize wiretaps without warrants on foreign nationals for matters of national security.

The debate comes in because Bush was doing it to American citizens. You say it's only for people suspected of working with foreign terrorists, and are therefore justified. We, on the left, would argue that if they're justifiable, why not get the warrant?

Too afraid of those "activist" judges? Bullshit. It's because they may not entirely be justifiable. There may not be probable cause, which is the M.O. of most surveillance and search operations.

Forgive us if we're a bit paranoid on the left. The last time the Right decided to wiretap indiscriminately against U.S. citizens, we had Hoover and McCarthy trying to discredit us left, right AND center.

-TheE-

Gan

12-23-2005, 01:08 PM

Originally posted by TheEschaton
The question here is not whether wiretapping is illegal or not on foreign nationals, like your Krauthammer article (and BTW, great source, FTL).
I challenge you to come up with a better source then.

Originally posted by TheEschaton
The President can authorize wiretaps without warrants on foreign nationals for matters of national security.
No shit sherlock. Where it becomes sticky is when it involves a 2 way conversation where one party is a US citizen. And yes, believe it or not, there are US citizens who support the terrorists.

Originally posted by TheEschaton
The debate comes in because Bush was doing it to American citizens. You say it's only for people suspected of working with foreign terrorists, and are therefore justified. We, on the left, would argue that if they're justifiable, why not get the warrant?
Factors such as time, secrecy required for a successful intelligence operation (unless you can say that all 532 members of Congress can keep a secret) :rolleyes:

Originally posted by TheEschaton
Too afraid of those "activist" judges? Bullshit. It's because they may not entirely be justifiable. There may not be probable cause, which is the M.O. of most surveillance and search operations.
A large degree of discrepancy and prudence has been used by the joint efforts of the CIA and the Do[J] to ensure that these broad spectrum powers were not abused. But any government monitoring in your eyes is too much, so I guess you'd rather be reactionary and blame everyone after the fact.

Originally posted by TheEschaton
Forgive us if we're a bit paranoid on the left. The last time the Right decided to wiretap indiscriminately against U.S. citizens, we had Hoover and McCarthy trying to discredit us left, right AND center.
-TheE-
You remind me of the doomsday market analysts that say that we are heading for another great depression, because after all, its happened once - it will happen again.

Hopefully one day you'll wake up and land with both feet in reality.

[Edited on 12-24-2005 by Ganalon]

TheEschaton

12-23-2005, 01:33 PM

Factors such as time, secrecy required for a successful intelligence operation (unless you can say that all 532 members of Congress can keep a secret)

It's never been a factor. There are secret courts, where warrants issued are classified. You don't have to inform Congress, you just have to get a warrant FROM AN IMPARTIAL JUDGE.

And Jesus, you want a warrant? I can get you a warrant. I can get you a warrant, with nail polish on it, by 3 this afternoon.

Movie quotes aside - warrants are not hard to get, nor are they overly time consuming when thought of in the long ass planning time it takes to plan a major terrorist plot.

-TheE-

Gan

12-23-2005, 01:51 PM

Its amazing that you know so much on the goings on of a secret court.

TELL US MORE! TELL US MORE!!!ONE11

I reserve the right to reapproach this in a rebuttal when I do more investigating on my own.

Skirmisher

12-23-2005, 01:52 PM

That segment with Malkin and the truly pathetic and cowardly smear attempts should be decried by any who call themselves Republican and have a sense of decency.

She and Coulter should go on a comedy tour.

They could be the abbot and costelo of the GOP.

DeV

12-23-2005, 01:54 PM

The NSA is supposed to be "the" top super-secret security agency too, Ganalon. Don't tell them I told you that though. Shhhhh...

I wonder where they obtain their warrants.

Gan

12-23-2005, 01:57 PM

Malkein and Coulter are a far cry better than having the likes of Michael Moore as a spokesman.

I would include others, but Moore is enough in itself.

Skirmisher

12-23-2005, 02:02 PM

Originally posted by DeV
The NSA is supposed to be "the" top super-secret security agency too, Ganalon. Don't tell them I told you that though. Shhhhh...

I wonder where they obtain their warrants.

Warrants??

We don need no steenkeen warrants!
:talktohand:

Skirmisher

12-23-2005, 02:04 PM

Originally posted by Ganalon
Malkein and Coulter are a far cry better than having the likes of Michael Moore as a spokesman.
...

Possibly, possibly not, but you never saw me slap anything Moore said up here as a real source now have you? :wow:

TheEschaton

12-23-2005, 02:11 PM

How secret courts work, in theory, have never been a secret. Just the specifics of the cases they deal with are secret, dumbass.

-TheE-

Gan

12-23-2005, 02:19 PM

Originally posted by Skirmisher

Originally posted by Ganalon
Malkein and Coulter are a far cry better than having the likes of Michael Moore as a spokesman.
...

Possibly, possibly not, but you never saw me slap anything Moore said up here as a real source now have you? :wow:

Not to be insulting, but I never kept up with what you posted enough to keep track.

:shrug:

If you bothered to read to my third post in this thread you'd see where I was giving the credit of my investigative efforts. But perhaps that also escaped you.

[Edited on 12-23-2005 by Ganalon]

Gan

12-23-2005, 02:20 PM

Originally posted by TheEschaton
How secret courts work, in theory, have never been a secret. Just the specifics of the cases they deal with are secret, dumbass.

-TheE-

Aww, you called me an affectionate name. I bet you feel better now.

Therapy charge: $7.00

I accept Paypal.

Skirmisher

12-23-2005, 02:23 PM

Originally posted by Ganalon
Not to be insulting, but I never kept up with what you posted enough to keep track.

:shrug:

Not insulted at all!

So then i'm sure you will take my word that I have not and see the difference between me criticising someone that you actually HAVE quoted as oppossed to you criticising someone I never claimed had any credibility in the least.

TheEschaton

12-23-2005, 02:26 PM

See, the key is to post insults mocking the other person....

...and THEN PRESENTING A FACT WHICH SUPPORTS YOUR VIEW.

-TheE-

Gan

12-23-2005, 02:31 PM

At least be creative about it.

During the discourse of a debate, both sides will present findings of fact and opinion that will support their case. Usually when one side or another resorts to childish name calling is when defeat is assumed. You might as well have invoked an parallel to Nazi Germany or Hitler and lost by default.

If you dont like my opinion, cool, you can even hate the expert opinions I bring to the debate. Present expert findings that contradict that if you feel so inclined. You can present your own opinion alone but you'll have to first show cause for belief that your opinion should be treated as 'expert' rather than just mere opinion.

Oh, and sticks and stones...

[Edited on 12-23-2005 by Ganalon]

Back

12-23-2005, 02:34 PM

Originally posted by Ganalon
Malkein and Coulter are a far cry better than having the likes of Michael Moore as a spokesman.

I would include others, but Moore is enough in itself.

Malkein and Coulter are deliberate hate mongers. Michael Moore is a film maker who has pissed people off. In terms of talent, they aren’t even in the same class. And if you really want to get down to it, if we measure success by income, Michael has more money than those corporate whores combined.

And says Michael Moore is a “spokesman?” A spokesman for whom? The Democratic party? He is a film maker not a politician. For the Hollywood elite? He is an independent documentarian whose last deal was dropped by Disney’s subsidiary Miramax because of its content. I guess not a spokesman for corporate america either.

For the terrorists? The scary and subversive left-wing liberal secularists who want to erase Christmas from our vocabularies? Any other conspiracies I’m missing here?

Gan

12-23-2005, 02:35 PM

Not to mention that Hollywood is one of the Democrats largest funding sources and supporters...

TheRoseLady

12-23-2005, 02:50 PM

Originally posted by Ganalon
Its amazing that you know so much on the goings on of a secret court.

TELL US MORE! TELL US MORE!!!ONE11

I reserve the right to reapproach this in a rebuttal when I do more investigating on my own.

There is such a court called FISA that allows officials to obtain warrants within 72 hours AFTER they have surveiled someone. I read somewhere that out of the 19,000 requests for warrants, 5 were denied. (I would have to dig for the reference.) The point is that there is a secret process in place for this exact thing. I was thinking, what's the big deal here...it is national security that we are talking about until I understood that an avenue for such requests is in place, if the President (any Pres) admits and brazenly states that he will continue this practice of breaking the law...just where exactly does it end? This is a much much larger issue than the like or dislike of Bush. Partisan people need to realize this and swap shoes, if a Dem were doing this exact thing I would be just as concerned.

No President (regardless of party) is above the law.

Not that you ASKED for all of that info Ganalon, but I wanted to get it out. :D

[Edited on 12-23-2005 by TheRoseLady]

Gan

12-23-2005, 02:53 PM

Originally posted by TheRoseLady

Originally posted by Ganalon
Its amazing that you know so much on the goings on of a secret court.

TELL US MORE! TELL US MORE!!!ONE11

I reserve the right to reapproach this in a rebuttal when I do more investigating on my own.

There is such a court called FISA that allows officials to obtain warrants within 72 hours AFTER they have surveiled someone. I read somewhere that out of the 19,000 requests for warrants, 5 were denied. (I would have to dig for the reference.) The point is that there is a secret process in place for this exact thing. I was thinking, what's the big deal here...it is national security that we are talking about until I understood that an avenue for such requests is in place, if the President (any Pres) admits and brazenly states that he will continue this practice of breaking the law...just where exactly does it end? This is a much much larger issue than the like or dislike of Bush. Partisan people need to realize this and swap shoes, if a Dem were doing this exact thing I would be just as concerned.

No President (regardless of party) is above the law.

You've touched on the actual debate. Congress is using FISA to put constraints on the powers of the executive branch. These powers are given explicitly by the Constitution. So technically FISA is what is in violation of the law. Others say its not so.

This is where judicial review will have to make a ruling. Who's got the right? Congress via the FISA act or the Executive branch with their powers as granted by the Constitution.

I agree that no one is above the law. Everyone just needs to agree on what the law is.

Ergo, saying Bush broke the law is very premature until a ruling is made.

TheRoseLady

12-23-2005, 03:16 PM

Originally posted by Ganalon

This is where judicial review will have to make a ruling. Who's got the right? Congress via the FISA act or the Executive branch with their powers as granted by the Constitution.

I agree that no one is above the law. Everyone just needs to agree on what the law is.

Ergo, saying Bush broke the law is very premature until a ruling is made.

What powers granted by the Constitution exactly are you referring to?

The law is on the books. It was passed into law in 1978 by Congress. Bush does not possess the power or right to engage in behavior that the Congress has prohibited through law. That is criminal behavior. Surveilling US citizens without a warrant is a Federal crime. Bush nor any president possess that sort of imperial power to decide which laws apply to him and his administration and which can be ignored. That is the reason we have the sort of system of checks and balances.

I understand what you are saying, but I think that there's much more at stake here. I don't have the will to delve into it now (the grocery is calling) but I am keeping an open mind. I hope that everyone is listening to this and thinking of the long term implications.

Back

12-23-2005, 03:25 PM

Whew, I have to say, TRL, you’ve been missed.

Hell of a firecracker ain’t she Gan?

Terminator X

12-23-2005, 03:25 PM

I have *no* idea what this post is trying to portray, but just glancing at the funny picture on the cover of Malkin's latest book (http://en.wikipedia.org/wiki/Unhinged:_Exposing_Liberals_Gone_Wild) gives me a few doubts into the orientation of her political editorials.

- The Termite

Back

12-23-2005, 03:34 PM

Quote from the book

They’re slashing your tires. Burning your lawns. Heaving pies at Republican pundits. Hurling racist epithets at minority conservatives. Nursing nutty conspiracy theories. And pining publicly for the murder of President Bush.

And they call us crazy?

---------------------------------------

Not bad not bad, but is she as hot as Coulter?

http://upload.wikimedia.org/wikipedia/en/thumb/d/d9/Malkin.jpg/180px-Malkin.jpg

http://mediamatters.org/static/images/tv_clips/ann-coulter.jpg

Hmm, I can only see them above the waist so I can’t make a fully informed judgment... but based on these two photos... I have to say Im more curious about Malkin’s goods.

[Edited on 12-23-2005 by Backlash]

TheEschaton

12-23-2005, 03:54 PM

I like that.

Calling Ann Coulter a "Conservative Author" is like calling Michael Moore a documentary maker.

-TheE-

Gan

12-23-2005, 03:59 PM

Originally posted by TheRoseLady

Originally posted by Ganalon

This is where judicial review will have to make a ruling. Who's got the right? Congress via the FISA act or the Executive branch with their powers as granted by the Constitution.

I agree that no one is above the law. Everyone just needs to agree on what the law is.

Ergo, saying Bush broke the law is very premature until a ruling is made.

What powers granted by the Constitution exactly are you referring to?

The law is on the books. It was passed into law in 1978 by Congress. Bush does not possess the power or right to engage in behavior that the Congress has prohibited through law. That is criminal behavior. Surveilling US citizens without a warrant is a Federal crime. Bush nor any president possess that sort of imperial power to decide which laws apply to him and his administration and which can be ignored. That is the reason we have the sort of system of checks and balances.

I understand what you are saying, but I think that there's much more at stake here. I don't have the will to delve into it now (the grocery is calling) but I am keeping an open mind. I hope that everyone is listening to this and thinking of the long term implications.

The president has inherent responsibility as found in Article II of the Constitution to protect the United States. It is also part of his oath of office.

Another justification can be found in the Authorization to Use Military Force that was passed by Congress as a response to the Al Queda attacks of 9-11.
"AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL.--That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

However, the constitutionality of the NSA programs, even if they are not justified by the AUMF act, all boils down to whether or not the 4th amendment was breached or if it was allowed by the inherent constitutional powers of the Executive branch.

George Washington Law Professor Orrin Kerr states "On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases."
SOURCE (http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722)

Even the associate AG under Clinton agrees, "But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."
SOURCE (http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed)

Furthermore Schmidt goes on to say, "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "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."

So who's right? FISA? AUMF? The inherent powers of the Executive Branch of the US GOVT. as stated by the Constitution? Or the 4th Amendment?

Its not a smokescreen by the GOP, nor by the Bush Administration. This is a legitimate contradiction of responsibility and authority between the executive branch and congress with the constitution caught in the middle.

Gan

12-23-2005, 03:59 PM

Originally posted by Backlash
Whew, I have to say, TRL, you’ve been missed.

Hell of a firecracker ain’t she Gan?

She's one of my favorites, and she does keep me on my toes.

Hulkein

12-23-2005, 04:13 PM

What does everyone think of the secret searches and wiretaps of Aldrich Ames in 1993? Both were done without a warrant.

Carter signed an executive order that authorized electronic surveillance to acquire foreign intelligence without a court order in 1979.

Bush isn't exactly doing something that has never been done before.

Gan

12-23-2005, 04:18 PM

To be honest, its starting to feel like another loophole goosechase, a la Downing Street Memos ad nausem.

In other words, some people are making much ado about nothing. Mostly for the acquisition of political capital at the expense of another's political capital.

TheEschaton

12-23-2005, 04:21 PM

In other words, some people are making much ado about nothing. Mostly for the acquisition of political capital at the expense of another's political capital.

Ummm, even if this was true:

Kettle? This is Pot calling.

-TheE-

Necromancer

12-23-2005, 04:22 PM

Let's make something very clear here.

Bush is quoting a Congressional piece of legislation and saying that it grants him the ability to circumvent a constitutional right. This, in and of itself, is not a valid legal argument. Congress does not have the ability to pass any laws in violation of the constitution unless that law specifically amends the constitution.

So Bush using that law is worthless, and it will not hold up in court. The question is whether or not warrantless searches are allowable by the constitution.

The argument that the Administration will make in court is that there is a compelling state interest, preventing more terrorist attacks, and that this compelling state interest allow them to partially abridge this well established right. HOWEVER, the administration must also make an argument that there was NO OTHER WAY TO MEET THIS STATE INTEREST THAT ABRIDGED THIS RIGHT LESS.

Both parts of the argument fall apart under constitutional scrutiny. The FISA courts allow for a retroactive warrant to be obtained 72 hours after the wiretap. Which means that they can get their information secretly, with the person being unaware, and THEN get their warrant (often using the information gleaned). This retroactive warrant was granted because it was necessary to make the surveillance legal. Why?

In Katz v US the Supreme Court held that using a "national security" interest was NOT enough of a justification to allow warrantless searches. It also held that, in particular, these kinds of surveillances done for the interest of "national security" were particularly subject to abridgement of not just 4th amendment rights (the amendment that gives us a right to have a warrant served first) but also 1st amendment rights, as the government is likely to regard any group or individual with opinions contrary to the government policies as particularly harmful in a way that is, on its face, unconstitutional.

Likewise, the government has opportunities to gather information without abridging the 4th amendment. Specifically, they are allowed to gather their intelligence and THEN apply for a warrant, which still protets the 4th amendment more so than the current EO while allowing for the same access to potentially important information.

As you can see, the Courts have addressed this situation before, and it is very clear that all of the arguments being used fail to stand up to any legal scrutiny.

[Edited on 12-23-2005 by Necromancer]

Back

12-23-2005, 04:22 PM

Originally posted by Ganalon
To be honest, its starting to feel like another loophole goosechase, a la Downing Street Memos ad nausem.

In other words, some people are making much ado about nothing. Mostly for the acquisition of political capital at the expense of another's political capital.

You can always count on the obvious. Just watch out for the bullshit.

Gan

12-23-2005, 04:26 PM

Originally posted by Necromancer
Let's make something very clear here.

Bush is quoting a Congressional piece of legislation and saying that it grants him the ability to circumvent a constitutional right. This, in and of itself, is not a valid legal argument. Congress does not have the ability to pass any laws in violation of the constitution unless that law specifically amends the constitution.

So Bush using that law is worthless, and it will not hold up in court. The question is whether or not warrantless searches are allowable by the constitution.

The argument that the Administration will make in court is that there is a compelling state interest, preventing more terrorist attacks, and that this compelling state interest allow them to partially abridge this well established right. HOWEVER, the administration must also make an argument that there was NO OTHER WAY TO MEET THIS STATE INTEREST THAT ABRIDGED THIS RIGHT LESS.

Both parts of the argument fall apart under constitutional scrutiny. The FISA courts allow for a retroactive warrant to be obtained 72 hours after the wiretap. Which means that they can get their information secretly, with the person being unaware, and THEN get their warrant (often using the information gleaned). This retroactive warrant was granted because it was necessary to make the surveillance legal. Why?

In Katz v US the Supreme Court held that using a "national security" interest was NOT enough of a justification to allow warrantless searches. It also held that, in particular, these kinds of surveillances done for the interest of "national security" were particularly subject to abridgement of not just 4th amendment rights (the amendment that gives us a right to have a warrant served first) but also 1st amendment rights, as the government is likely to regard any group or individual with opinions contrary to the government policies as particularly harmful in a way that is, on its face, unconstitutional.

As you can see, the Courts have addressed this situation before, and it is very clear that all of the arguments being used fail to stand up to any legal scrutiny.

So you're saying that the following people dont know what the fuck they're talking about?

Originally posted by Ganalon
George Washington Law Professor Orrin Kerr states "On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases."
SOURCE (http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722)

Even the associate AG under Clinton agrees, "But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."
SOURCE (http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed)

Furthermore Schmidt goes on to say, "Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "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."

What professional qualifications do you hold that would make us believe you know what you're talking about? And does it match up to a former associate USAG and a tenured GWU law professor?

Necromancer

12-23-2005, 04:31 PM

Also, it has been held as legal to acquire foreign intelligence information without a warrant. People outside of the US are not granted the same constitutional rights that are granted to US citizens, at least, not by US courts.

What Bush did was extend this to US citizens, and THAT is what opened up a whole can of worms. US citizens have 4th amendment rights that foreign nationals do not.

Necromancer

12-23-2005, 04:35 PM

>What professional qualifications do you hold that would make us believe you know what you're talking about? And does it match up to a former associate USAG and a tenured GWU law professor?

Do you really think I'm the only one making this argument? My text book didn't just open itself up to Katz v US magically. This case is why people are up in arms. Because the Supreme Court has already addressed this very issue.

The people making alternative arguments are basically arguing that it's possible for a new interpretation that differs due to present circumstances. But, for the record, most legal minds who're dealing with the subject right now side with the Katz ruling as the law. And, frankly, until Katz has been overturned, it IS the law. The US government has to find some way to prove that it doesn't apply to this situation, and there are indeed people trying to argue that. But, they're fighting an offensive battle.

Gan

12-23-2005, 04:39 PM

Personally I think you're wrong, and full of shit.

I've researched and read, and put my little non taking con law pea brain to good use and with the help of some expert sources have formed a conclusion. One which you refute but yet refuse to cite any personal qualifications to demonstrate that your opinion is the correct one, and furthermore you've failed to cite any othere 'expert' testimony that supports your claims.

Thanks for playing, and welcome to the PC.

Necromancer

12-23-2005, 05:03 PM

Actually, if you read the post again, I DID quote a source: the US Supreme Court.

In the Katz case, the Court held unanimously that in cases that investigated domestic subversion, electronic surveillance required a warrant and could not bypass 4th amendment rights. This bypass was only legal in surveillance of foreign nationals.

The Court went on to explain that national security was not enough of a reason to overried protections that require the US to submit evidence to a neutral magistrate before abridging the right to privacy. In fact, in particular, the Court held, cases of domestic subversion required an even more sensitive touch as what was considered to be probably cause in such a case was more likely to infringe on 1st amendment rights than domestic crimes.

The administration is trying to argue that the AUMF (Authorized Use of Military Force) law superceded FISA. But there is no "repeal by implication", which means that a law must specifically repeal a constradictory law for it to be so, it does not do so automatically. the AUMF bill did not explicitly repeal FISA, which would put it in conflict with already established law without a provision for negation.

Bush is also using wartime provisions in the constitution that grant the President certain authorities to justify his actions. However, there is no explicit declaration of war that would generally be required to trigger these provisions. This would be the first war without such a declaration currently running, and it has the potential to completely negate his argument. Just because are battling does not mean we are legally in a war (please see Desert Storm for a good example of this). And we are not legally in a war.

There, hard facts for you. Enjoy.

Gan

12-23-2005, 05:22 PM

I call your attention to footnote 23 of the Katz case.

Here, I'll post it if you are disinclined to pull the link of the actual case.

[ Footnote 23 ] Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.

To which Orinn Kerr also states in his brief:

"The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:
"Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable."

You might want to find another source to site rather than the Katz case since its inconclusive at best.

And you still did not answer my question as to your own qualifications since you refuse to source any experts in the field.

SOURCE (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=389&invol=347)

Necromancer

12-23-2005, 05:35 PM

I've read Kirr's legal analysis. He uses the Katz case in an entirely different light, but, frankly, as he himself admits, this isn't a strong point of his (though, granted, neither is it one of mine).

His analysis is deeply flawed when it comes to the Katz case, however, as the Court directly addressed both national security interests in relationship to the 4th amendment AND the different requirements for domestic subversion versus foreign terrorism.

In fact, the Katz case is one of the reasons why the FISA court was established. In light of the case, lawmakers realized that they needed warrants to allow for domestic spying, so they created a hybrid due process system that allowed for covert warrants in a timely manner. The Katz case, as well as the Keith case, laid enough ground to allow for what was a very diluted right to a warrant. In no other context would the process through which one obtains a warrant in a FISA court be constitutional (the idea of a retroactive warrant that has a lower burden of proof and allow for up to 15 days of mutltiple surveillances before a (retroactive) warrant must be obtained is antithetical to 4th amendment rights in most situations, but the Court ruled in both cases that special considerations were required, though in the Katz case it made it clear that surveillance without a warrant was NOT constitutional)

His cases are numerous, but his analysis is flawed in the Katz case. Case and point, he's reading it differently than even Congress did during the passage of FISA.

Gan

12-23-2005, 05:38 PM

Flawed based on whose opinion? Yours?

:lol:

Ok bub, whatever. I'm waiving the bullshit flag on you. Unless you can backup your assertions with something besides just your opinion.

Interestingly enough, here's an excerpt from the Opinion of the Katz case as given by Justice Stewart.

..."Secondly, the Fourth Amendment cannot be translated into a general constitutional "right to privacy." That Amendment protects individual privacy against certain kinds of governmental intrusion, but its protections go further, and often have nothing to do with privacy at all. 4 Other provisions of the Constitution protect personal privacy from other forms of governmental invasion. 5 But the protection of a person's general right to privacy - his right to be let alone by other people 6 - is, like the [389 U.S. 347, 351] protection of his property and of his very life, left largely to the law of the individual States. 7

Back

12-23-2005, 06:17 PM

I’m not convinced this story has any real merit other than an accusation with anonymous sources. Its from the Boston Globe. A city that has a rich tradition of protecting American’s civil rights.

Wiretaps said to sift all overseas contacts (http://www.boston.com/news/nation/washington/articles/2005/12/23/wiretaps_said_to_sift_all_overseas_contacts?mode=P F).

WASHINGTON -- The National Security Agency, in carrying out President Bush's order to intercept the international phone calls and e-mails of Americans suspected of links to Al Qaeda, has probably been using computers to monitor all other Americans' international communications as well, according to specialists familiar with the workings of the NSA.

The Bush administration and the NSA have declined to provide details about the program the president authorized in 2001, but specialists said the agency serves as a vast data collection and sorting operation. It captures reams of data from satellites, fiberoptic lines, and Internet switching stations, and then uses a computer to check for names, numbers, and words that have been identified as suspicious.

[Edited on 12-23-2005 by Backlash]

TheRoseLady

12-23-2005, 06:25 PM

Originally posted by Ganalon
Personally I think you're wrong, and full of shit.

I've researched and read, and put my little non taking con law pea brain to good use and with the help of some expert sources have formed a conclusion. One which you refute but yet refuse to cite any personal qualifications to demonstrate that your opinion is the correct one, and furthermore you've failed to cite any othere 'expert' testimony that supports your claims.

Thanks for playing, and welcome to the PC.

I haven't seen any evidence that you've done anything except throw out a few opinions on this topic. Ganalon, seriously, stop all the rhetoric. I can go conjure up at least 10 sources that contradict what you posted. The bottom line is that Necromancer hasn't said a damn thing that warrants the sort of bullshit pigheaded nonsense that you are throwing back.

Honestly. This whole, if you don't see my way you're a shithead has to stop.

So far everything that Necromancer has posted is supported in what I have read. I'm not done reading, I am now going to venture over to the conservative side and try to see what the "other" side is saying. I'm starting with those links that you posted.. I'll get back to you with my thoughts.

Necromancer

12-23-2005, 06:35 PM

The Katz cases's language on the right to privacy is not acceptable case law on the subject, and it is rendered void by subsequent decisions. The 4th amendment has been held as a basis for the right to privacy (though not the only one, three different amendments have been used to justify the right to privacy:1, 4, and 5, as well as a few other fun laws and court decisions) by the Court. So I'm really not sure why you quoted a case that came out in the 60's to define the right to privacy that was firmly established in 1973. But kudos for your irrelevant tangents.

Also, call bullshit all you'd like. If you had read the Katz case, you would have stumbled upon the direct language that makes it clear that domestic surveillance always requires a warrant. The only thing left open was what exact procedures the government had to go through in order to obtain it. Some amount of deference was given to the Federal government in this instance, which is why the FISA warrant process was deemed constitutional.

But even if you want to throw out the Katz case, the Keith case also made it clear that the government had no right to throw out 4th amendment (and 1st amendment actually) rights in the cases of domestic surveillance. FISA actually came about after the Courts suggested in the Keith case that Congress create some protections for US citizens (and permanent residents, fyi) who are subject to surveillance. The inconvenience to the government was justifiable, the Court found, in a society of freedom and constitutional law. Thus, the need for probable cause was deemed necessary. The executive branch, barring invoking the wartime clause (which was deemd insufficient in the Keith case, mind you) does not have the ability to override this constitutional protection in the way that it did. Particularly with the finding that NSA may have been monitoring thousands of conversations that did not have probable cause, this EO looks increasingly illegal and subjects the President to impeachment.

The Keith decision did say that it was possible to use "different standards" for 4th amendemnt infringements, but they had to balance the rights of free citizens, which, according to the Court, meant that probably cause WAS necessary. An example of a "different standard" might be obtaining a warrant after the actual surveillance, as is permissable in a FISA court.

But sure, I've no clue what I'm talking about.

[Edited on 12-23-2005 by Necromancer]

Gan

12-23-2005, 06:39 PM

Originally posted by TheRoseLady
I haven't seen any evidence that you've done anything except throw out a few opinions on this topic.
Actually, if you bother to read the thread, I've given numerous posts concerning my opinion, and have backed it up using opinions from expert sourcing. What else the fuck do you want? Written in gold?

Originally posted by TheRoseLady
Ganalon, seriously, stop all the rhetoric. I can go conjure up at least 10 sources that contradict what you posted.

Then get off your ass and post them. Until then its nothing but rhetoric.

Originally posted by TheRoseLady
The bottom line is that Necromancer hasn't said a damn thing that warrants the sort of bullshit pigheaded nonsense that you are throwing back.
Actually, his demeaning posts in this and other threads regarding the concept of constitutional law perscribe just that very treatment. Initially it was challenging to spend the effort to find quality testimony on the topic. Once found he debunks it by saying its flawed, based on what??? His omnicient opinion? And he still refuses to provide sufficient evidence to support his inability to find expert opinions debating the contrary.

Originally posted by TheRoseLady
Honestly. This whole, if you don't see my way you're a shithead has to stop. If you dont like it, Alt+F4 is your friend.

Originally posted by TheRoseLady
So far everything that Necromancer has posted is supported in what I have read. I'm not done reading, I am now going to venture over to the conservative side and try to see what the "other" side is saying. I'm starting with those links that you posted.. I'll get back to you with my thoughts.

I welcome your thoughts with open arms. And please remember your sourcing if you like maintaing credibility with regards to this topic.

Nothing like debunking the left wing rhetoric shouting for someone's head when the matter of law has not even been reviewed or ruled upon. And then getting shouted down for sourcing valid and viable opinions (not including my own personal layman ones) to substantiate an alternate viewpoint.

:clap:

Gan

12-23-2005, 06:42 PM

Originally posted by Necromancer
The Katz cases's language on the right to privacy is not acceptable case law on the subject, and it is rendered void by subsequent decisions. The 4th amendment has been held as a basis for the right to privacy (though not the only one, three different amendments have been used to justify the right to privacy:1, 4, and 5, as well as a few other fun laws and court decisions) by the Court. So I'm really not sure why you quoted a case that came out in the 60's to define the right to privacy that was firmly established in 1973. But kudos for your irrelevant tangents.

Also, call bullshit all you'd like. If you had read the Katz case, you would have stumbled upon the direct language that makes it clear that domestic surveillance always requires a warrant. The only thing left open was what exact procedures the government had to go through in order to obtain it. Some amount of deference was given to the Federal government in this instance, which is why the FISA warrant process was deemed constitutional.

But sure, I've no clue what I'm talking about.

You're the first one to really bring up Katz.
Keep going.... And yes I did read the Katz case, as cited above... here's the source again since you seem to be obliviant to hyperlinks.
SOURCE - KATZ v. United States. (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=389&invol=347)

See below.

Originally posted by Necromancer
Let's make something very clear here.

Bush is quoting a Congressional piece of legislation and saying that it grants him the ability to circumvent a constitutional right. This, in and of itself, is not a valid legal argument. Congress does not have the ability to pass any laws in violation of the constitution unless that law specifically amends the constitution.

So Bush using that law is worthless, and it will not hold up in court. The question is whether or not warrantless searches are allowable by the constitution.

The argument that the Administration will make in court is that there is a compelling state interest, preventing more terrorist attacks, and that this compelling state interest allow them to partially abridge this well established right. HOWEVER, the administration must also make an argument that there was NO OTHER WAY TO MEET THIS STATE INTEREST THAT ABRIDGED THIS RIGHT LESS.

Both parts of the argument fall apart under constitutional scrutiny. The FISA courts allow for a retroactive warrant to be obtained 72 hours after the wiretap. Which means that they can get their information secretly, with the person being unaware, and THEN get their warrant (often using the information gleaned). This retroactive warrant was granted because it was necessary to make the surveillance legal. Why?

In Katz v US the Supreme Court held that using a "national security" interest was NOT enough of a justification to allow warrantless searches. It also held that, in particular, these kinds of surveillances done for the interest of "national security" were particularly subject to abridgement of not just 4th amendment rights (the amendment that gives us a right to have a warrant served first) but also 1st amendment rights, as the government is likely to regard any group or individual with opinions contrary to the government policies as particularly harmful in a way that is, on its face, unconstitutional.

Likewise, the government has opportunities to gather information without abridging the 4th amendment. Specifically, they are allowed to gather their intelligence and THEN apply for a warrant, which still protets the 4th amendment more so than the current EO while allowing for the same access to potentially important information.

As you can see, the Courts have addressed this situation before, and it is very clear that all of the arguments being used fail to stand up to any legal scrutiny.

[Edited on 12-23-2005 by Necromancer]

Here's a recap:

Originally posted by Necromancer
The Katz cases's language on the right to privacy is not acceptable case law on the subject, and it is rendered void by subsequent decisions.

But half a page earlier...

Originally posted by Necromancer
Why?
In Katz v US the Supreme Court held that using a "national security" interest was NOT enough of a justification to allow warrantless searches.

Keep posting, its becomming entertaining.

[Edited on 12-24-2005 by Ganalon]

TheRoseLady

12-23-2005, 08:00 PM

Originally posted by Ganalon
George Washington Law Professor Orrin Kerr states "

SOURCE (http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722)

Well Ganalon, your first article was an interesting read, I was however saddened to see that you took out bits and pieces that support (what I am assuming is your position.) You left out some crucial bits that demonstrate that the professor was trying to review things from all sides. In particular you seemed to completely ignore his opening paragraph:

Legal Analysis of the NSA Domestic Surveillance Program: Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.

In summary, the surveillance may have been Constitutional but violated a Federal Law (FISA) and that there's room for an argument that it fell under the AUMF, but he felt that was not very persuasive.

The second source was an OpEd. I am not so much interested in the question of whether Bush and the administration had the right to surveil but that they had an avenue to make it happen and they chose to ignore it. I have since read that not one single warrant request last year was denied. Why is this such a big deal that they were not willing to use the FISA court? I think that the answer is pretty clear.

And for good measure let me toss out a quote from another law professor:

As Geoffrey Stone, a law professor at the University of Chicago, told the New York Times on Wednesday, "The president's authorizing of the N.S.A. to spy on Americans is blatantly unlawful and unconstitutional."

The issue still remains that this administration seems to think that they are above the law. I was young when Nixon was impeached but that seems to be the same problem that he had...."inherent power". I suspect that the sins of this administration have yet to be fully revealed. I realize that sort of comment really upsets the conservatives, but I really feel that things will get worse before they get better.

TheRoseLady

12-23-2005, 08:05 PM

Originally posted by Ganalon
If you dont like it, Alt+F4 is your friend.

:fu:

Have fun in your little bubble world Ganalon, where you can only hear yourself speak. You have garnered a spot that up until now, only Dave had managed to land in... don't bother to respond to my previous post, I won't be affording you the courtesy of a reply. You're not worth the effort.

Necromancer

12-23-2005, 10:51 PM

First off, the right to privacy is not at issue in this situation. I find the topic of the thread hillarious because it shows just how much you misunderstand the legal circumstances at hand. What is at the heart of the debates, and the Katz and Keith cases in particular, is the 4th amendment, the right to due process.

Privacy is an elaboration of due process, true, but in this circumstance what is being debated is issuing a warrant, which isn't about your right to privacy directly (though it does have implications for it, those implications are not generally legally powerful arguments either way, which is why the right to privacy isn't being discussed). Privacy is also an elaboration of the first and fifth amendments, fyi.

Secondly, just because the Katz case (which held that the right to privacy was a right that was in the power of the states and not as much a Federal constitutional right) is not the case law used to explain the right to privacy does NOT mean that the right to privacy does not exist and is not abridged in this situation. It is abridged, but it is abridged secondarily through the violation of due process through the failure to acquire a warrant for the surveillance of US citizens and permanent residents. If you want to make a right to privacy case (in either direction), you should be using Roe v Wade, maybe Griswold, and Lawrence v Texas. But of course, no one is because it's not the issue at hand.

And finally, just because I said you needed to know more about constitutional law before posting about it (in response to a few grossly inaccurate statements about our constitutional rights and the process through which they are protected) does not mean that I've put out a constant stream of demeaning posts. I'm sorry, you were flat out wrong to imply that because the right to privacy is not explicitly stated in the Constitution, it is not a real right (according to the Courts). You were wrong to state that it was held to a different standard than say 1st amendment rights. You are wrong to think that the issue with surveillance and the NSA is about the right to privacy. Deal with it. You may have been horribly offended and felt demeaned, but that says more about you than my statements.

Gan

12-23-2005, 11:15 PM

Originally posted by TheRoseLady

Originally posted by Ganalon
If you dont like it, Alt+F4 is your friend.

:fu:

Have fun in your little bubble world Ganalon, where you can only hear yourself speak. You have garnered a spot that up until now, only Dave had managed to land in... don't bother to respond to my previous post, I won't be affording you the courtesy of a reply. You're not worth the effort.

I feel the love. You're still one of my favorites, even though you're a bleeding heart liberal.

Gan

12-23-2005, 11:27 PM

Originally posted by Necromancer
blah blah blah

Thanks for your opinion. It is duly noted and even though I dont agree, I'll grant you the opportunity to voice it however you may choose. Even though you dont back it up with any logical sources - just your own opinion.

With that said, I'm betting that there will be no impeachment hearings, because no law was actually broken. The upcoming months and the ensuing investigation will prove interesting much like the hearings for the PlameGate issue. I seem to recall many of the same folks when that started up scream for Rove's head, insisting that he was guilty. And yet there is still no indictment. Much the same as it will be in this instance. Eventually, when the facts are out, and the investigation is complete you'll find that it is mostly expounded bloviation and little truth.

Necromancer

12-23-2005, 11:52 PM

Just because I don't quote some other person's opinion on established legal fact does not make it an opinion.

Read up on the right to privacy if you don't believe me that it's from the 1st, 4th, and 5th amendments, or if you somehow think that it doesn't stem from Roe v Wade and partially from the Griswold case before it.

Read Katz and the Keith cases if you don't believe me about the issue that were being discussed, or if you don't believe me about their decisions.

Read FISA and its history if you think this is about the right to privacy. In particular, pay attention to how it relates to the Keith case.

Sorry, I don't need to quote someone else's analysis when I'm quoting the original sources to you. Unlike you, I don't think facts have more or less merit based on the people who bring them to our attention. To give an argument credit, or none, based on the people arguing it is to engage in an ad hominem logical fallacy.

And you keep falling into the fallacy of assuming that legal action taken or not taken is a direct result of the facts of a case and not the political maneuverings involved. This leads me to believe that you are either naive, or that you are willing to sacrifice the truth of a situation for a rhetorical edge (an irony since the argument holds no water whatsoever).

Gan

12-24-2005, 01:17 AM

WASHINGTON (CNN) -- Justice Department lawyers have sent a letter to key congressional leaders providing legal arguments they say justify President Bush's decision to authorize the National Security Agency to intercept communications between people in the United States and potential terrorist contacts abroad.

The five-page letter, sent late Thursday to House and Senate Intelligence committee chairmen and their Democratic counterparts, asserts that national security interests must be paramount when weighing the interests of security and privacy.

The letter, signed by Assistant Attorney General William Moschella, repeats administration reliance on Article II of the Constitution, which gives the commander in chief authority to protect the nation, and the post-9/11 law that authorized the president to take steps against al Qaeda.

The letter reiterates the president's contention that the court set up by the Foreign Intelligence Surveillance Act, or FISA, could not have been used to seek intercepts in cases where time was critical.

"FISA could not have provided the speed and agility required for the early warning detection system," the Justice Department letter argued.

"Nevertheless I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations," it said.

The Justice Department apparently was designated to assure Congress that the administration was not violating privacy rights as critics in both parties have charged.

"There is undeniably an important and legitimate privacy interest at stake," the letter said. "That must be balanced, however, against the government's compelling interest in the security of the nation."

The letter was sent to Sens. Pat Roberts, R-Kansas, and John Rockefeller, D-West Virginia, and to Reps. Peter Hoekstra, R-Michigan, and Jane Harman, D-California.

During his end-of-year press conference Monday, Bush called the NSA eavesdropping program essential, saying it was limited to international communication to known terrorists and their associates.

"We know that a two-minute phone conversation between somebody linked to al Qaeda here and an operative overseas could lead directly to the loss of thousands of lives," Bush said.

But Democrats and Republicans have questioned the legality of the program, and some lawmakers have called for an independent investigation or congressional hearings.

Sen. Russ Feingold, D-Wisconsin, said Sunday that he believes Bush's action violated the law.

"[The Foreign Intelligence Surveillance Act] says it's the exclusive law to authorize wiretaps," Feingold said. "This administration is playing fast and loose with the law in national security. The issue here is whether the president of the United States is putting himself above the law, and I believe he has done so."

Sen. Jack Reed, D-Rhode Island, said the president could have gone back to a FISA court after the wiretaps if he was concerned about speed.

"I'm just stunned by the president's rationales with respect to the illegal wiretapping," Reed said. "There are two points that have to be emphasized with respect to the FISA procedure: They're secret, and they're retroactive.

"There is no situation where time is of such an essence they can't use the FISA proceedings. And so the president's justification, I think, is without merit."

CNN's Terry Frieden contributed to this report.
_________________________________

SOURCE (http://www.cnn.com/2005/POLITICS/12/23/justice.nsa/index.html)

Gan

12-24-2005, 01:23 AM

And some more, for your reading and updating pleasure.
____________________________
WASHINGTON (CNN) -- A court that oversees government surveillance will receive a secret briefing about President Bush's controversial domestic spying program, a judge on the court told CNN.

The briefing, to be held behind closed doors, will address concerns about the legality of the National Security Agency program, U.S. District Court Judge Malcolm Howard said.

The program allows the government to eavesdrop on U.S. residents without obtaining warrants.

Howard said the session was put together after colleague James Robertson resigned from the Foreign Intelligence Surveillance Court on Monday.

Robertson, who remains on the federal bench, reportedly resigned in protest of the NSA program. The existence of the program was made public last week.

Howard said the briefing, which will be held in Washington, will be closed and classified. (Watch a report on the secret court -- 1:46)

The surveillance court, made up of 11 judges from across the nation, was created in 1978 by the Foreign Intelligence Surveillance Act (FISA). The legislation mandates that intelligence agencies seeking to monitor domestic conversations must ask the court for a warrant.

The Bush administration argues the NSA program is exempt from that requirement.

Several FISA court judges are raising concerns about the program, according to The Washington Post, which first reported the briefing.

Those concerns include questions about whether the Bush administration has overreached its authority, and whether information that might have been gathered illegally was used to obtain warrants from the court, the newspaper said in Thursday's editions.

Howard said he doesn't share those concerns and wasn't aware of them until he read his colleagues' quotes in the newspaper.

He said the judges have been discussing logistics of the briefing by e-mail. NSA and other government officials are expected to explain the purpose of the project and the legal reasoning behind it.

The classified program has been in existence since shortly after the September 11, 2001, terror attacks. It allows the NSA to monitor U.S.-based communications so long as one end of the communication is overseas.

Government officials also have said only people suspected of having a connection to al Qaeda or another terrorist organization are placed under surveillance.

Many Democrats and civil rights advocates say the program is not lawful because it was not explicitly authorized by legislation.

President Bush and other administration officials have argued it is legal and cite as justification Congress' post-9/11 anti-terrorism declaration as well as the Constitutional authority given the commander-in-chief.

Howard would not say whether he had been told any details of the classified program.

"The terrorist threat is so grave the president needs to use every tool possible, and it has to be accomplished with lightning speed," he said.

Attorney General Alberto Gonzales has said the NSA program was not meant to circumvent the FISA process but to augment it.

Howard criticized Robertson's decision to resign from the court, saying federal judges should not enter the political realm.

It "disappoints me he used resignation as a protest," he said. "That is getting into the fray."

Robertson, however, has refused to give a reason for or otherwise comment on his resignation. His term was scheduled to expire next May.

CNN's Paul Courson contributed to this story

SOURCE (http://www.cnn.com/2005/LAW/12/22/nsa.court/index.html)

Gan

12-24-2005, 11:12 AM

And now the NY Times jumps into the fray. I guess what bothers me is why the rush to print a story like this when there is still rather large information gaps? What kind of data does calling patterns represent? What population did the data represent, foreign or US national or a linked combination of both?
________________________________

NEW YORK (AP) -- The National Security Agency has conducted much broader surveillance of e-mails and phone calls -- without court orders -- than the Bush administration has acknowledged, The New York Times reported.

The NSA, with help from American telecommunications companies, obtained access to streams of domestic and international communications, said the Times, citing unidentified current and former government officials.

The story did not name the companies.

Since the Times disclosed the domestic spying program last week, President Bush has stressed that his executive order allowing the eavesdropping was limited to people with known links to al Qaeda.

But the Times said that NSA technicians have combed through large volumes of phone and Internet traffic in search of patterns that might lead to terrorists.

The volume of information harvested from telecommunications data and voice networks, without court-approved warrants, is much larger than the White House has acknowledged, the paper said, quoting an unnamed official.

The story quoted a former technology manager at a major telecommunications firm as saying that companies have been storing information on calling patterns since the September 11 attacks, and giving it to the federal government. Neither the manager nor the company he worked for was identified.

Copyright 2005 The Associated Press. All rights reserved.This material may not be published, broadcast, rewritten, or redistributed.

SOURCE (http://www.cnn.com/2005/POLITICS/12/24/domestic.spying.ap/index.html)
________________________________________

And a followup to the Times story:

WASHINGTON (CNN) -- Telecommunications companies are helping the National Security Agency collect information as part of a program President Bush secretly approved in 2002, a source familiar with the program said.

The program, which involves domestic surveillance of Americans and other people who communicate with terror suspects abroad, requires the agency to collect, trace and analyze data from these companies.

Two sources, both former officials with knowledge of the program, said a great deal of information is analyzed to glean information on terror plots. (Watch U.S. Department of Justice defend the program -- 2:32)

The New York Times on Saturday reported that the NSA has been monitoring "large volumes of telephone and Internet communications flowing into and out of the United States" -- a larger volume than previously indicated by the administration.

"NSA has gained the cooperation of American telecommunications companies to obtain back-door access to streams of domestic and international communications," the newspaper added.

A former official familiar with the program said that eavesdropping is not sufficient to understand the information being collected, but by employing communications companies to help find patterns that point to terror suspects officials are better able to discern what is threatening.

"It is the search for a pattern of communication that leads you to concern and threats. To not find out those things is scary," one source said, calling the program successful. (Read about the Bush administration's stance on eavesdropping)

Those types of patterns include who is talking to whom, when they are talking, and where they are when they are communicating.

The White House will not comment on stories that "may or may not be about intelligence operations on the war on terror," spokesman Allen Abney said.

"This administration will continue to aggressively fight the war on terror and protect the American people, while at the same time uphold the civil liberties of the American people. The president is doing this and will continue to do these things," he said.

Several former U.S. officials expressed frustration that this program was publicized and called it a blow to America's ability to successfully combat terror.

CNN was not able to confirm which, if any, telecommunications companies have participated in the program

SOURCE (http://www.cnn.com/2005/POLITICS/12/24/nsa.surveillance/index.html)

[Edited on 12-24-2005 by Ganalon]

Tsa`ah

12-24-2005, 11:19 AM

Truely an amazing amount of drivel posted.

I also like the arguments about warrants and costs ... yet no comment about the cost of tapping that could be prevented with proving probably cause and the issue of a warrant.

Gan

12-24-2005, 11:26 AM

Originally posted by Tsa`ah
Truely an amazing amount of drivel posted.

I also like the arguments about warrants and costs ... yet no comment about the cost of tapping that could be prevented with proving probably cause and the issue of a warrant.

Only 3 pages on this thread, but if you include the others it amounts to somewhere between 10 and 20 pages. Thats politics for you, drivel at its best.

I'm not following your line of thought on the 2nd part though, perhaps I need more caffeene.

Tsa`ah

12-24-2005, 11:34 AM

I'd settle for you getting a clue.

Gan

12-24-2005, 12:13 PM

Wow, I should feel insulted. Try being a little more explanitory if you wish to contribute. Better spelling would [probably] help.

Sorry if thats tacky, you should not have left the door open.

Lets hear your thoughts on the subject then. :!:

[Edited on 12-24-2005 by Ganalon]

Tsa`ah

12-24-2005, 01:21 PM

Originally posted by Ganalon
Wow, I should feel insulted. Try being a little more explanitory if you wish to contribute. Better spelling would [probably] help.

When you have nothing, insult spelling and syntax.

It simply amazed me that you, one single individual, was able to fill the drivel quota in under 3 posts. Tamral, Dave, and a number of others needed a good 5-10 before they dug a large enough hole.

Sorry if thats tacky, you should not have left the door open.

Lets hear your thoughts on the subject then. :!:

Tacky is what is really of expected of you any more.

The premise that obtaining warrants in order to tap has proved to be too costly and time consuming is a mask to cover the cost of tapping in general.

Look at it like commercial fishing. These guys don't just shove off the dock and drop the nets. They track the fish they're trying to catch, test the waters, and then cast the nets.

If they just drop the nets blind, they would pull in a bunch of crap (fish) they can't sell and waste their time in doing so. True, they could catch some of the variety they're looking for, but not enough to justify leaving the dock in the first place.

Privacy is indeed the right of all free people. It has been pointed out, though rejected, that in order to invade someone's right to privacy, you need a just cause to do so.

The argument has been that judges are too liberal, the cost to the tax payer is too great, and it just ties up our legal system.

1. Our legal system is already tied up in BS already, but not the courts required to obtain warrants for federal taps.

2. We spend thousands of federal dollars on a toilet seat, monetary cost is abstract at this point. We're fleeced no matter what.

3. A warrant ensures that tapping a citizen is justified. Just because the name is Muhamed does not mean Muhamed is a terrorist. A person of ethnic origin, but a US citizen returning from a trip to visit family in the middle east does not mean the person is a terrorist. Someone posting that Bush is an inept fascist in a private LJ does not mean that person is a terrorist.

Making these agencies justify taps will save us money. The broad net requires heavy funding and more personnel.

When the prez wants to spy on his own people with wreckless abandon in regard to the constitution, someone needs to watch the cost, the motive, the actions taken ... someone needs to watch the watchmen. That means more money.

All of these costs would be negligible if the agencies in question proved the case first.

Let's not even get into the break down of communication as agencies grow. Let's also not get into how the conservatives preach small government and lower expenditures ... yet still backs domestic spying, which takes more money and larger agencies.

And for the record ... explanatory ... that's

Gan

12-24-2005, 02:01 PM

Originally posted by Tsa`ah
The premise that obtaining warrants in order to tap has proved to be too costly and time consuming is a mask to cover the cost of tapping in general.
Where did you dig up the cost argument? I've yet to see that listed as a defense by the administration. Or is that one of the infamous Tsa'ah logical leaps?

Originally posted by Tsa`ah
Privacy is indeed the right of all free people. It has been pointed out, though rejected, that in order to invade someone's right to privacy, you need a just cause to do so.
You must be talking of the natural human right to privacy theory. Nice theory, but it is not completely applicable in this debate. We're discussing constitutional right to privacy, due process, and the executive responsibility of the president to protect the US from foreign aggressors.

Originally posted by Tsa`ah
The argument has been that judges are too liberal, the cost to the tax payer is too great, and it just ties up our legal system.
Again, yes this argument exists, but not specifically in dealing with the circumvention and legal standing of FISA warrants.

Originally posted by Tsa`ah
1. Our legal system is already tied up in BS already, but not the courts required to obtain warrants for federal taps.
Nice filler.

Originally posted by Tsa`ah
2. We spend thousands of federal dollars on a toilet seat, monetary cost is abstract at this point. We're fleeced no matter what.
More filler.

Originally posted by Tsa`ah
3. A warrant ensures that tapping a citizen is justified. Just because the name is Muhamed does not mean Muhamed is a terrorist. A person of ethnic origin, but a US citizen returning from a trip to visit family in the middle east does not mean the person is a terrorist. Someone posting that Bush is an inept fascist in a private LJ does not mean that person is a terrorist.
True, as well as a man walking out of a bar is not assumed to be an alcoholic. Does that mean he deserves less attention as he walks to his car than a person walking out of a florist shop. Law enforcement (federal and local) have techniques they use to catch the bad guys BEFORE something bad happens. Or thats the considerable idea. If they were to abandon these techniques as discriminatory or for the propensity of the invasion of privacy/due process then all protection would be retroactive.

Originally posted by Tsa`ah
Making these agencies justify taps will save us money. The broad net requires heavy funding and more personnel.
Nice theory.

Originally posted by Tsa`ah
When the prez wants to spy on his own people with wreckless abandon in regard to the constitution, someone needs to watch the cost, the motive, the actions taken ... someone needs to watch the watchmen. That means more money.
Did you come up with this all by yourself?

Originally posted by Tsa`ah
All of these costs would be negligible if the agencies in question proved the case first.
Take the Moussaui(sp) laptop incident. They could not legally search the laptop and FISA would not grant them a warrant. Later when they were able to obtain a warrant (after 9-11) they found critical information that could have helped in preventing the hijackings. They key factor here is time, not cost.

Originally posted by Tsa`ah
Let's not even get into the break down of communication as agencies grow. Let's also not get into how the conservatives preach small government and lower expenditures ... yet still backs domestic spying, which takes more money and larger agencies.
Lets not talk about how Democrats want to fund understudies of how bees mate or how groundhogs hibernate, all on the taxpayer's dollar. Lets not discuss how the Democrats like to think everything is safe, and criminals are not really criminals but misguided youth with faulty parents. Lets not forget that complacency such as that helped contribute to 9-11.

Originally posted by Tsa`ah
And for the record ... explanatory ... that's

Originally posted by Tsa`ahWhen you have nothing, insult spelling and syntax.

Warriorbird

12-24-2005, 06:32 PM

Michelle Malkin doesn't even write her own material.

The White House had the ability to perform secret wiretaps and then submit the paperwork for approval three to four days after the fact.

Yet they chose not to do this.

I wonder who these wiretaps were of. Those horribly dangerous and warlike Quakers again? Merry Orwellian Christmas.

[Edited on 12-25-2005 by Warriorbird]

Latrinsorm

12-24-2005, 07:32 PM

Originally posted by Tsa`ah
The argument has been that judges are too liberal, the cost to the tax payer is too great, and it just ties up our legal system. I'll take straw man for $500, Alex. Did you think no one would notice if you just didn't bother reading the thread?

And while we're being English majors:
It simply amazed me that you ... was able An appositive does not change conjugation.
Our legal system is already tied up in BS alreadyThe redundancy department of redundancy called.
A person of ethnic origin, but a US citizen returning from a trip to visit family in the middle east does not mean the person is a terrorist.Missed the second comma.
When the prez wants to spy on his own people with wreckless abandon Reckless.
Let's also not get into how the conservatives preach small government and lower expenditures ... yet still backs domestic spyingConjugation failure again.

All in all, I give it a B-.

Ravenstorm

12-24-2005, 07:39 PM

Originally posted by Warriorbird
I wonder who these wiretaps were of.

Everyone? (http://www.alertnet.org/thenews/newsdesk/N24215626.htm) Or at least, lots and lots.

Raven

Gan

12-25-2005, 12:26 AM

Originally posted by Warriorbird
I wonder who these wiretaps were of.

Will we ever know? I mean seriously. Do we need to know? What would we do with that knowledge if we did know? Will it make a difference in how you wake up tomorrow if you did know, or did not know?

I mean come on, I've lived this long without knowing who really shot JFK. Compared to that, what else is there?

Back

12-25-2005, 12:28 PM

Ok, for the two legs good four legs bad crowd...

So this administration thinks we all could use a little less privacy to ensure our safety yet is the most secretive administration in recent history. If they want to listen in on my international calls, fine. I want to know what Cheney discussed with America’s top energy executives.

This is not transparency. This is a one way mirror.

Necromancer

12-25-2005, 03:38 PM

To be fair, it is quite possible that the calling pattern information was legally acquired. The Courts have ruled that in cases of "borders", due process rights aren't applicable. This is how they are able to search through any international mail that they would like to but are unable to go through domestic mail at a whim.

The information being acquired is being acquired right at the switchboards that connect US callers and International callers. In a sense, they act as telecommunication borders. Now, I don't know enough about this to say for certain, I've only read one major case involving the border issue (THE major case). There may be other cases out there that clarify things a bit more, but I would be surprised. Barring a case I've never heard of, if the administration was only getting information on calling patterns and not actually getting information on whom was calling whom, then it's most likely legal particularly in a national security interest. If the program used this information to pull out even one minor detail about a particular caller, however, it's illegal. So if they looked at sheets of paper that listed every international call made (or even one), its involved parties, its duration, etc. then they have seriously violated 4th amendment rights to due process and quite possibly 1st amendment rights in their targetting methods.

Warriorbird

12-25-2005, 06:48 PM

Will we ever know? I mean seriously.

Probably not.

Do we need to know?

I dunno. Remember a Republican president named Nixon? I don't think WE need to know, but I question why the established court didn't need to know.

What would we do with that knowledge if we did know? Will it make a difference in how you wake up tomorrow if you did know, or did not know?

Impeach the President...or correct a public relations disaster.

It would make a difference in how I woke up tomorrow. I'd be jubilant if the President's collossal arrogance did him in. If not, I'd have a bit more confidence in my country than I do right now. Back when the Republicans stood for patriotism rather than blindness, that was supposed to be a good thing.

TheRoseLady

12-25-2005, 07:08 PM

I think that it's pretty obvious that the Administration spied on those with whom they KNEW they could not get a warrant to surveil. Would be interesting to see how many political enemies are on that list. Outspoken opponents of the administration and it's policies. Not terrorists.

The implications of this are pretty far reaching.

Ravenstorm

12-25-2005, 07:42 PM

Originally posted by TheRoseLady
Outspoken opponents of the administration and it's policies. Not terrorists.

Well, we know student groups on various campuses who were protesting military recruiting because of 'don't ask, don't tell' were monitored by the Pentagon because they were a "credible threat" to security.

I know I'm glad the administration is cracking down on them and the Quakers in the war on terror.

Raven

Necromancer

12-25-2005, 07:59 PM

I think RoseLady is right on target when she questions how far-reaching these policies are. Specifically, if we allow for this, what kind of precedent does it set for the abridgement of civil liberties in the face of "national security" concerns. As this administation has demonstrated, it isn't particularly difficult to keep the American public in a constant state of fear and panic over security, even in absence of any actual threat (it's been five years since September 11th, and the security argument is being used more than ever).

My ultimate fear is that if not reigned in, these policies will create a snowball effect that will end up with domestic citizens undergoing torture and interrogation without any substantial evidence that they have any information (or, even if they do). It's not far fetched in the least. The CIA has been using torture for years now to extract (often unreliable) information in the interrogations of foreign nationals and US citizens who have been (rightfully or wrongly) declared "enemy combatants".

Lines need to be drawn, and that is what our constitution is for. What seems to have escaped notice in the American people and this administration is that in every major abridgement of basic human and legal rights in history, there has always been some sort of justification that went over well with the majority. National security has been a very popular one. It even got Japanese internment camps created on the West Coast. Those who are not wary of the current situation have apparently long ago thrown away their history books.

Artha

12-25-2005, 08:14 PM

I'm pretty sure that the government is monitoring this thread and bugging houses right now.

Warriorbird

12-25-2005, 08:17 PM

I'm sure you wouldn't care even if they were. I doubt they'd be doing illegal surveillance on "Mr. Young Republican 2005." They can do no wrong in your eyes, even when breaking the law.

Artha

12-25-2005, 08:26 PM

...

http://img483.imageshack.us/img483/5656/compass2rs.jpg

+ (http://dictionary.reference.com/search?q=humor)

[Edited on 12-26-2005 by Artha]

Ravenstorm

12-25-2005, 08:27 PM

Originally posted by Necromancer
What seems to have escaped notice in the American people and this administration is that in every major abridgement of basic human and legal rights in history, there has always been some sort of justification that went over well with the majority. National security has been a very popular one.

Indeed.

Why of course the people don't want war. Why should some poor slob on a farm want to risk his life in a war when the best he can get out of it is to come back to his farm in one piece? Naturally the common people don't want war neither in Russia, nor in England, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the peacemakers for lack of patriotism and exposing the country to danger. It works the same in any country.
~Hermann Goering

Sounds familiar, doesn't it.

Raven

Warriorbird

12-25-2005, 08:32 PM

"Artha's post."

Doesn't mean too much. CT is theoretically a Democrat. I show up as more conservative than you do. You still support the current Republican Party.

Artha

12-25-2005, 08:33 PM

I show up as more conservative than you do.
Hahaha.

NOW WHO'S MISTER YOUNG REPUBLICAN 2005???

It's Christmas, let's all get along :grouphug:

Necromancer

12-25-2005, 09:50 PM

That quote is horrifying in its accuracy.

TheRoseLady

12-25-2005, 11:17 PM

I don't normally post entire articles, but I thought this was a brilliantly written article concerning this topic. (I'm sure that Dave Sr. will disagree...)

Source (http://www.washingtonpost.com/wp-dyn/content/article/2005/12/23/AR2005122302050.html)

Power Play
Did Bush Roll Past the Legal Stop Signs?

By Suzanne E. Spaulding

Sunday, December 25, 2005; Page B01

At his news conference last week, President Bush objected when a reporter characterized his use of executive power to eavesdrop on Americans without any court order as "unchecked." The president's sensitivity is understandable. As he went on to explain, the charge of unchecked power implies that he is asserting a kind of dictatorial authority -- precisely what Americans fought, and continue to fight, against in Iraq. But what are the sources of checks and balances of a president's authority? They are the Congress, the courts and, ultimately, the American people. Based on the facts as reported so far, none of these appear to have operated as an effective check on this extraordinary exercise of presidential power.

Ironically, if it is ultimately determined that this domestic surveillance program reflects the exercise of unchecked power in contravention of law, it will wind up weakening the presidency. Once again, we will confront the challenge of restoring Americans' faith in the rule of law and our system of checks and balances. The administration says Congress was briefed "at least a dozen times" in the four years since the wiretap program started. Even assuming that these classified briefings accurately conveyed all relevant facts, it appears that they were limited to only eight of the 535 senators and representatives, under a process that effectively eliminates the possibility of any careful oversight.

As a former legal counsel for both Republican and Democratic leaders of the House and Senate intelligence committees, I'm well aware of the limitations of these "gang of eight" sessions. They are provided only to the leadership of the House and Senate and of the intelligence committees, with no staff present. The eight are prohibited from saying anything about the briefing to anyone, including other intelligence panel members. The leaders for whom I worked never discussed the content of these briefings with me.

It is virtually impossible for individual members of Congress, particularly members of the minority party, to take any effective action if they have concerns about what they have heard in one of these briefings. It is not realistic to expect them, working alone, to sort through complex legal issues, conduct the kind of factual investigation required for true oversight and develop an appropriate legislative response.

These gang of eight briefings, while sometimes necessary, should be extremely rare. Under the National Security Act, they are supposed to be limited to situations involving covert actions, and even then only under "extraordinary circumstances." Yet they have occurred with increasing frequency in the last few years.

Before I worked on the intelligence committees, I was a lawyer at the CIA. We understood that congressional oversight was key to maintaining the trust of the American public, which is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a "check the box" mentality -- allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight.

And it is clear that the courts did not have any role in reviewing this assertion of executive authority. Instead of going to a judge on the secret court that was specifically established to authorize foreign intelligence surveillance inside the United States, we are told that an NSA shift supervisor was able to sign off on the warrantless surveillance of Americans. That's neither a check nor a balance. The primary duty of the NSA shift supervisor, who essentially works for the president, is to collect intelligence. The task of the judge is to ensure that the legal standards set out in the 1978 Foreign Intelligence Surveillance Act (FISA) have been met. Which one has stronger independence to say no, if no needs to be said?

The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist's cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear.

FISA anticipates situations in which speed is essential. It allows the government to start eavesdropping without a court order and to keep it going for a maximum of three days. And while the FISA application process is often burdensome in routine cases, it can also move with remarkable speed when necessary, with applications written and approved in just a few hours.

Perhaps the administration did not believe that these wiretaps would meet the FISA standard, which requires the government to have probable cause to believe that the target of the surveillance is an agent of a foreign power, which includes terrorists and spies. Yet, since 2001, FISA judges have reportedly reviewed more than 5,645 applications and rejected only four. The current judges were all hand-picked by the late Chief Justice William Rehnquist, who presumably felt that they had the right temperament and expertise to understand the national security imperatives as well as the need to protect civil liberties.

Nevertheless, if administration officials believed they faced a scenario in which the FISA standard could not be met, they could have sought to amend the statute, as they have done several times since the law's enactment in 1978. Several such amendments , for example, were contained in the 2001 Patriot Act.

The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.

Moreover, the administration has yet to make the case for keeping this significant policy change secret for four years. It's hard to imagine that the terrorists do not already assume that we try to listen to their cell phone conversations (after all, it is well known that FISA allows such wiretaps) or that we have technology to help us search through reams of signals. (Check out the Wikipedia definition of Echelon on the Internet.) So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations? Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.

Attorney General Alberto Gonzales claims that the NSA program did not violate the law because FISA only requires a warrant "unless otherwise authorized by statute" and that the congressional resolution authorizing the use of force after the attacks of Sept. 11, 2001, somehow authorized this circumvention of FISA's rules. FISA does provide for criminal penalties if surveillance is conducted under color of law "except as authorized by statute." This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable?

The law clearly states that the criminal wiretap statute and FISA are "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

The administration's ultimate argument is that "the president has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity." This is the same argument outlined in the infamous torture memo, which concluded that the president can effectively ignore any statute that appears to infringe on this broad authority. That memo was withdrawn after it became public and was roundly criticized. The legal reasoning behind the arguments, however, has never been repudiated and appears to have resurfaced here.

We cannot know for certain how the Supreme Court would rule on the legitimacy of the spying program. However, the court rejected President Harry Truman's similar claim of broad presidential power in seizing control of the nation's steel mills to avert a strike during the Korean War. The court, in a 6-to-3 ruling , stated that the president's inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority -- as it has in FISA -- "is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress."

The administration may be counting on fear of another terrorist attack in asserting this unprecedented authority. But if President Bush can simply ignore laws that he thinks are unconstitutional, without getting a court ruling or having genuine consultations with Congress, then why bother to work so hard at getting the Patriot Act provisions right, or the McCain torture amendment, or any other laws related to terrorism? And where does it stop? Justice Sandra Day O'Connor rejected the administration's claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with . . . enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Now that the existence of this program has been revealed, the FISA judges are finally being briefed and the Senate Judiciary Committee has signaled its intention to hold hearings. Perhaps these co-equal branches will get some more specific answers to important questions like: What legal reasoning was used to justify the program in 2001? What standard is used in this program? Why couldn't FISA be used? If FISA was inadequate in some way, why not seek to amend it? What is the value of the intelligence obtained? Are there other secret programs that the heads of the intelligence committees have not been briefed about?

The rule of law and our system of checks and balances are not a source of weakness or a luxury of peace. As O'Connor reminded us in Hamdi , "It is during our most challenging and uncertain moments . . . that we must preserve our commitment at home to the principles for which we fight abroad."

Suzanne Spaulding is a Washington lawyer. She was general counsel for the Senate and House Intelligence committees, assistant general counsel at the CIA and executive director of the National Terrorism Commission (1999-2000).

Gan

12-26-2005, 12:23 AM

Great article TRL. Welcome back to the sand box, evidently I did not hurt your feelings too bad.

The article is well thought out, addresses all the angles that the Bush Administration is using as its defense for using taps without FISA warrants and the circumvention of FISA altogether. As a note, there are a few assumptions made by the author that clearly indicate the inconclusive legality or ilegality of the actions by the NSA in not seeking FISA warrants for specific taps. To which I'll point out below.

So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations? Presumably very little.
I agree that its well known that we have the technology to monitor all means of electronic communication. What seems to be the need for secrecy, from my perspective, is the techniques by which those methods are employed in order to successfully target those communiques that are of significant value.

The eight are prohibited from saying anything about the briefing to anyone, including other intelligence panel members. The leaders for whom I worked never discussed the content of these briefings with me.
Considering the frequency of stories from major news media sources citing 'an unnamed source in Congress'. I understand and support keeping a small group such as this.

What I did not know, and would like to see changed, is equal representation and participation by both majority and minority leadership. And I agree with her summation as to why equal representation needs to be present (see her next paragraph). However, she gives me the impression that it would be Congress wide instead of a small group. To that I disagree, any advantage of secrecy will be eliminated, ergo you might as well tell the enemy what you're going to do next.

We cannot know for certain how the Supreme Court would rule on the legitimacy of the spying program.

Agreed, and as earlier posted. While I have my opinions as to what I think will happen, they are by no means certain until we see (if we are allowed to see) more specifics about who was targeted, what was monitored, and what actions were taken as a result of.

The article's author also sets up a nice case for precedence with case of Youngstown Sheet & Tube Co. v Sawyer 343 U.S. 579 and Hamdi v Rumsfeld.

O'Connor's opinion in the Hamdi case will negate any use of the AUMF (as Kerr's opinion also states) as a justification for the wiretaps so I think it will, as I stated earlier in this thread, fall back on a battle between Article II and the 4th Amendment, both of the Constitution. There is existence of precedence with the Truman case, and it will remain to be seen of there is equal and persuasive precedence supporting Executive powers that can be brought up in rebuttal.

With the trust in Bush administration at the low points it has been combined with evidence (incomplete evidence at best so far) of possible breaches in the 4th amendment against US citizens will also have an effect on how these charges are viewed by the reviewing authority, especially if they have taken on the presumption that it is up to them to restore the faith of the American people in their government.

It will be interesting times indeed for the Bush administration in 2006. I look forward to following this story and still stand by my word that if it is decided that Bush or his administration acted illegally then they should be held accountable to the full effect of the law.

On the other hand, if it is determined legal, and yet there are those who wish to continue to broadcast our techniques and efforts to the mass public which hinders or jeopardizes the safety and security of our soverign land, then they should be held accountable for violating that trust, in a most treasonous manner.

Necromancer

12-26-2005, 01:16 AM

Title II will likely be a losing argument as this EO has most certainly been authorized when the US was not legally at war. In fact, we were never legally at war with Iraq or Afghanistan.

Also, Article II Section 2 does nothing more than grant the President the right to control the US military; it does not give the President the right to overrule the constitution during times of war. The fact that the administration is saying this is laughable. The very constitution they are quoting was specifically set up to prevent these kinds of abuses, and Article II Section 3 (I believe it's Section 3, it may be 4) requires that the President take an oath to uphold the constitution. In light of this, Courts have interpreted the Commander In Chief clause (Section 2) to mean that the President has the power to excercise whatever (constitutional) force is required to uphold the constitution. But it does not grant the President the right to violate the constitution in the process. For example, the Courts have held that the Executive Branch cannot stop Congress from passing a law under any circumstances, even wartime circumstances because it violates the constitutional separation of powers.

It's a very weak legal argument on their part, which is why they're focusing on the AUMF law more.

Gan

12-26-2005, 04:44 PM

Originally posted by Necromancer
Title II will likely be a losing argument as this EO has most certainly been authorized when the US was not legally at war. In fact, we were never legally at war with Iraq or Afghanistan.
The constitution gives Congress the authority to declare war. Not to make war. This was noted in the writings of Alexander Hamilton (Federalist No. 25). And as such, the framers of the Constitution changed the initial writing from 'make' war to 'declare' war. This inherently gives the Executive power to repel sudden attacks.

Originally posted by Necromancer
Also, Article II Section 2 does nothing more than grant the President the right to control the US military; it does not give the President the right to overrule the constitution during times of war.
There seems to be consistant opinions by the Supreme Court agreeing with the interpretation of the Executive branch concerning the right to exercise military action (make war even though it is not 'declared' by congress) as seen in Harlow v Fitzgerald; Nixon v Fitzgerald; Dept. of Navy v Egan; Haig v Agee; Ludecke v Watkins; United States v Curtiss-Wright Export Corp.

Originally posted by Necromancer
The fact that the administration is saying this is laughable.
Perhaps to you, but not everyone.

Originally posted by Necromancer
The very constitution they are quoting was specifically set up to prevent these kinds of abuses, and Article II Section 3 (I believe it's Section 3, it may be 4) requires that the President take an oath to uphold the constitution.
Yes, Article II Section 3 is where he's comissioned to take an oath of office.

Originally posted by Necromancer
In light of this, Courts have interpreted the Commander In Chief clause (Section 2) to mean that the President has the power to excercise whatever (constitutional) force is required to uphold the constitution.
See court cases outlined above.

Originally posted by Necromancer
But it does not grant the President the right to violate the constitution in the process.
That is the crux of the debate between those who support the administration and those who wish to see it impeached. This is where we will likely see some sort of judicial review.

Originally posted by Necromancer
For example, the Courts have held that the Executive Branch cannot stop Congress from passing a law under any circumstances, even wartime circumstances because it violates the constitutional separation of powers.
And there also seem to be court cases upholding the powers of the Executive branch as well. (See above)

Originally posted by Necromancer
It's a very weak legal argument on their part, which is why they're focusing on the AUMF law more.
I disagree in that it will be a showdown of Article II and its inherent powers.

Even if they were going to go the AUMF route, they have compelling precedence from the War Powers Resolution (1973) and the Joint Resolution (2001) that seem to give the President broad authority to ensure the safety and security of the nation. Whether or not violations of the 4th amendment can be included in those powers, and if there was indeed violations (since we have yet to see specifics) has yet to be determined.

One thing of note:
How would you define an act of war? Full out invasion? Any military strike of premeditated or spontaneous as a result of recent or immenent aggressions?

Would you consider the following to be an act of war?

On June 26, 1993, President Clinton ordered a Tomahawk cruise missile strike on Iraqi Intelligence Service (the "IIS") headquarters in Baghdad. The IIS had planned an unsuccessful attempt to assassinate former President Bush in Kuwait in April, 1993. Two United States Navy surface ships launched a total of 23 missiles against the IIS center.

In a Letter to Congressional Leaders on the Strike on Iraqi Intelligence Headquarters, 1 Pub. Papers of William J. Clinton 940 (1993), the President referred to the failed assassination attempt and stated that "[t]he evidence of the Government of Iraq's violence and terrorism demonstrates that Iraq poses a continuing threat to United States nationals." He based his authority to order a strike against the Iraqi government's intelligence command center on "my constitutional authority with respect to the conduct of foreign relations and as Commander in Chief," as well as on the Nation's inherent right of self-defense. Id.

President Clinton's order was designed in part to deter and prevent future terrorist attacks on the United States - and most particularly future assassination attempts on former President Bush. Although the assassination attempt had been frustrated by the arrest of sixteen suspects before any harm was done, "nothing prevented Iraq from directing a second - possibly successful - attempt on Bush's life. Thus, the possibility of another assassination plot was 'hanging threateningly over [Bush's] head' and was therefore imminent. By attacking the Iraqi Intelligence Service, the United States hoped to prevent and deter future attempts to kill Bush." (23).

[Edited on 12-26-2005 by Ganalon]

Tsa`ah

12-27-2005, 05:29 AM

Originally posted by Latrinsorm
...

Translation ... "I got nothing."

Dear Latrine,

When you get tired of chasing your own ass, please feel free to contribute.

Average cost per federal tap order .... $75659.

Per tap mind you.

http://www.uscourts.gov/wiretap02/contents.html

While federal costs for warrants aren't really broken down in a PDF format, judging by many state and county records, the cost per warrant (with investigation) varies from 120 - 400 bucks.

There's nothing complex about the right to privacy, or due process.

If you're a citizen of this country, it takes a warrant. Pretty much the end of the story.

And really, citing BS studies that we can all do without as a defense .... just sad.

Necromancer

12-27-2005, 09:35 AM

>The constitution gives Congress the authority to declare war. Not to make war. This was noted in the writings of Alexander Hamilton (Federalist No. 25). And as such, the framers of the Constitution changed the initial writing from 'make' war to 'declare' war. This inherently gives the Executive power to repel sudden attacks

>Precisely. And Congress never actually declared war, which would mean that any enumerated wartime powers are on shakey ground at best. Pre-emptive strikes are not actually war. There were specific legal reasons why war was never declared, fyi, and it's illogical (and highly suspect) to go back and suddenly say it was war.

>There seems to be consistant opinions by the Supreme Court agreeing with the interpretation of the Executive branch concerning the right to exercise military action (make war even though it is not 'declared' by congress) as seen in Harlow v Fitzgerald; Nixon v Fitzgerald; Dept. of Navy v Egan; Haig v Agee; Ludecke v Watkins; United States v Curtiss-Wright Export Corp

No one is arguing this point, but it has to be done in very specific contexts. The President is not allowed to attack another nation with no reason (both due to US law and international law). They can order strikes in emergency situations only. We have never been in an emergency situation with Afghanistan or Iraq during this administration's tenure. Also, even one a strike is ordered, it does not give the President a blank check to do as he pleases. He requires Congress's authorization for any ongoing military action, which is precisely why he pushed through the AUMF law. He also does not get immunity from the constitution in the process, which is really the point here. No one is really arguing about the President's powers to authorize military action (though it's an interesting question), they're arguing about his ability to abridge the constitution in the process.

>That is the crux of the debate between those who support the administration and those who wish to see it impeached. This is where we will likely see some sort of judicial review.

You've already set out a false binary in this situation. Members of the Republican party are calling for investigations right now, in addition to Democrats. And the Supreme Court has been very clear on this: Sanda Day O'Connor's decision (No blank check on American rights for national security reasons), the actual text of the Constitution (Article 2, Section 3), and the Katz/Keith cases (national security does not allow for an abridgement of due process rights) all make it very clear that whatever powers the President may have, ignoring the constitution is not one of them; under any circumstances.

>Even if they were going to go the AUMF route, they have compelling precedence from the War Powers Resolution (1973) and the Joint Resolution (2001) that seem to give the President broad authority to ensure the safety and security of the nation. Whether or not violations of the 4th amendment can be included in those powers, and if there was indeed violations (since we have yet to see specifics) has yet to be determined

Again, you cannot violate the 4th amendment (or any amendment) on a national security whim. The standard may be different (for example, retroactive warrants), but the basics must be upheld. Warrantless searches are in clear violation of the right to due process; this is not legally murky. The man who wrote most of the legal arguments the US is using, a professor at Cal, is to abhored and shunned that the students called for his removal from campus and his own colleagues don't take his writing seriously. He is well-known for interpreting the law incorrectly based on his own desires for an outcome. No sane lawyer is going to argue that the US has the right to conduct warrantless searches on citizens or permanent residents. Only politicans argue that one.

Warriorbird

12-27-2005, 11:45 PM

Or apologists.

Gan

12-28-2005, 09:54 AM

A few more articles for those who are interested in reading. I'll post the links since they are somewhat lengthy.

http://www.opinionjournal.com/editorial/feature.html?id=110007734

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/27/AR2005122700718.html

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/26/AR2005122600516.html

http://www.washtimes.com/op-ed/20051226-095629-5103r.htm

http://www.rockymountainnews.com/drmn/speak_out/article/0,2777,DRMN_23970_4341982,00.html

Most of them are op/ed pieces. Interesting ideas presented to say the least.

Tromp

12-28-2005, 10:28 AM

I frankly am amused in your 1st post here that you call the liberals paranoid.

It seems the Bush republicans are so obsessed with terrorism that they have to cram it down their own parties throat to support the administration.

Lets just say liberals and conserves are equally paranoid.

Gan

12-28-2005, 11:14 AM

Originally posted by Tromp
I frankly am amused in your 1st post here that you call the liberals paranoid.

It seems the Bush republicans are so obsessed with terrorism that they have to cram it down their own parties throat to support the administration.

Lets just say liberals and conserves are equally paranoid.

Silence is usually considered agreement. And paranoia usually spreads in absence of another voice.

And when the only voice that usually happens is of a liberal slant, I would not want them to think that everyone agreed.

Ergo, even though I'm a moderate, I will offer up an alternative viewpoint. You can call me paranoid though, because I'm paranoid that other's paranoia will spread.

You last sentence, when used to describe the extremists on the left and right who only see black and white, I do agree with. Reality makes all of those kinds paranoid.

[Edited on 12-28-2005 by Ganalon]

Latrinsorm

12-28-2005, 09:02 PM

Originally posted by Tsa`ah
When you get tired of chasing your own ass, please feel free to contribute.Dearest Tsa`ah,

No one had said that cost was an issue at all. You arguing that cost was a bad argument is, therefore, a straw man (at best). I don't have to respond to your attacks on it because I never made the argument that warrants cost too damn much in the first place. You're entirely welcome to beat the stuffing out of your straw man and urinate on his remains, but as a gentleman you are absolutely forbidden from deriding me for not defending your construct.

As an aside, should that be "straw person"?
There's nothing complex about the right to privacy, or due process.Apparently the lawyer guys don't agree.

Truly yours,
Mr. Sorm
Originally posted by necromancer
the basics That sounds like an interpretation of the Constitution to me, and I seem to remember the (current) Supreme Court getting the final say on that kind of stuff. If you were to ask me, I'd say warrantless searches sound relatively unConstitutional, but as you were quite ready to point out, I never took any Con Law courses.

Warriorbird

12-29-2005, 12:12 AM

Apparently the lawyer guys don't agree.
-Latrin

I never took any Con Law courses.
-Latrin

Latrinsorm

12-29-2005, 12:26 AM

I did, however, take a logic course, and I am aware that X and ~X are contradictory statements. Hence, when Lawyer Guy #1 (e.g. Necromancer) says "Bush = not legal" and Lawyer Guy #2 (e.g. whoever Ganalon cited) says "Bush = legal", the Lawyer Guys are not agreeing.

Now, Lawyer Guy #1 taking shots at Lawyer Guy #2's credibility or standing is all well and good, but I reckon letting the Big Lawyer Guys hash this stuff out is the best course of action.

Warriorbird

12-29-2005, 12:34 AM

Shockingly enough, I know a bit about logic myself. That little bit suggests that your denial of the right to privacy/protection against illegal searches and seizures might not be that simple. Just because you want something to be one particular way doesn't mean that someone's cited quotes are accepted by the majority of the legal community.

Posner explained it in amusing terms. He supports the Patriot Act. He supports the Whitehouse conducting secret wiretaps. He just didn't think that breaking pre-existing laws was all that good an idea.

All the Whitehouse had to do was have folks provide some justification...after the fact. The lack of willingness to provide simple after the fact reasoning seems to tilt things in favor of those pointing out the wrongness of the matter.

Even a fair number of Republicans (and their apologists) seem to be not supporting the President on this one. I don't think it's anything close to powering an impeachment, but that doesn't make it right.

Gan

12-29-2005, 11:08 AM

An interesting article found on newsday.com for those keeping up with this topic. More of a philosophical slant than legal.

http://www.newsday.com/news/opinion/ny-oppin294568040dec29,0,1024362.column?coll=ny-viewpoints-headlines

Back

12-29-2005, 11:10 AM

Some more news from the right to privacy front...

NSA used banned data-tracking on Web site (http://msnbc.msn.com/id/10629515/)

NEW YORK - The National Security Agency's Internet site has been placing files on visitors' computers that can track their Web surfing activity despite strict federal rules banning most of them.

These files, known as "cookies," disappeared after a privacy activist complained and The Associated Press made inquiries this week, and agency officials acknowledged Wednesday they had made a mistake.

Nonetheless, the issue raises questions about privacy at a spy agency already on the defensive amid reports of a secretive eavesdropping program in the United States.

----------------------------------------

I’m positive I’ve been to their site. Damn! They are going to steal all my best pr0n!

xtc

01-26-2006, 02:37 PM

Wow eleven pages I am not going to bother reading it all.

Personally I am a fan of the Fourth Amendment and I think law enforcement should be required to get a warrant to conduct wiretaps and for the record Muslim Americans are still Americans.

I am not a fan of racial profiling partly because it is never done evenly. After the FBI building in Okalahoma was destroyed and many were people killed, we didn't start profiling young white males. I don't like my civil rights to be violated especially on the basis on race.

Regarding affirmative action as a rule I am against it. I should point out that College admissions only consider African Americans and Hispanics on the basis of race, all other ethnicities do no qualify for affirmative action at Colleges. I do believe that a person should be hired for their abilities not their race. However after seeing 60 minutes do a piece on Union Energy, I wonder if some races are capable of getting a fair shot in certain states. Several employees of Union Energy faced blatant racism, in one case a black employee transferred from one plant to another. On the first day on the job when he got to his new work station, there was a noose hanging from the ceiling, a gift from his co-workers. When the President of Union Energy was interviewed about it, he said it wasn't racism just boys being boys. That was they day I reconsidered my position on Affirmative Action. I am open to the idea it maybe applicable in certain parts of America.

Border control. I am a strong supporter of strong borders. Illegal aliens are just that illegal. It isn't a race issue. When an illegal alien sneaks into American he or she steals a spot from someone waiting in another country to come to America legally. I would ship all illegal aliens back to their respective countries; implement punitive punishments for employers found knowing hiring illegal aliens. I know the minute men have done a great job of bringing light to this issue however I am concerned about the vigilantly aspect and the fact that some minute men are now carrying guns.

There was a time when the right lobbied against privacy invasion from a FEDERAL government. Remember the time when the right fought for less Federal intrusion into our lives and for smaller government?

Lastly I think "terrorism" is the most overused word in politician's and the media's lexicon. The threat is massively over emphasized. I am not saying it doesn't exist however not on the scale Bush and Co. would have you believe.

Warriorbird

01-26-2006, 09:20 PM

"we didn't start profiling young white males"

I did. Profiling white males is the way to do it if you work TSA/Airport Security.

radamanthys

01-26-2006, 11:45 PM

Skirmisher

01-27-2006, 12:08 AM

...

And on Union Energy. Which would you rather have, 1000's of pissed off employees, or 1 pissed off black guy? The President woulda been lynched for real had he stood up for the new guy. It's just how that kinda thing works. Hate exists. It's going to be there, no matter what. Blacks hate whites, too, you know. It's just as bad, really. Walk through Compton dressed as a Klansman. It would be just as bad as walking a back street in the deep south on the fourth of july in a Black Panthers shirt or daishiki. Yea, our ancestors did bad stuff to theirs, I didn't do anything, why should I pay?

That analogy of a black panther member to a KKK member is so flawed as to be unbearable. Please come up with one with the smallest bit of validity.

radamanthys

01-27-2006, 04:59 AM

I know it's a sensitive topic, but i'm just trying to give my two cents. I grew up in a city school district and saw FAR more black-on-white violence than anything, so I'm quite biased. When I was in 7th grade I moved to all all-white suburb school, and heard a litlte bit of white-on-black, but it was just talk. I actually got jumped just for being white at one point by a group of black students... noone I knew, they were just kicking me and calling me "Whitey", "Honkey" and even the creative "White trash bag". The kids saying "Nigger" in the other school wouldn't ever do anything like that. It was all talk. My point was, however, that it exists on both sides, and people don't like to consider that, as we like to "feel bad" about things.

The comment you refuted: My point was that there are certain streets I would not walk down at midnight as a white guy, and there are certain streets a black guy should not, either. So proportionally to their respective populations, there's just as much racism on either end of things.

That a little bit better? Going for more validity. Sorry, I know that one was a little weak.

TheRoseLady

01-27-2006, 07:21 AM

I know it's a sensitive topic, but i'm just trying to give my two cents. I grew up in a city school district and saw FAR more black-on-white violence than anything, so I'm quite biased.

What you really mean is that you are a bigot. I don't care how much trash talk you experienced in school, the workplace is an entirely different atomsphere. Hopefully full of mature adults who don't engage in that sort of behavior. For the president to relegate it to children's games is astounding.

As for your thoughts XTC about privacy and government expansion. What I feel is happening is that the government is operating under it's own agenda that doesn't much resemble that of the conservative right - but a much harsher homegrown version of "everything we do is ultra private - no transparency here" but "your privacy is not guaranteed because of TERROR, that ever present boogey man and 911. We're here to serve to the corporations and line our pockets."

Before one of my conservative cohorts tries to bring out Clinton, let's just nip that in the bud. He's no longer president - what he or any other Dem did is moot. This is here and now, the time where the Repubs were supposed to clean up Washington and serve the public righteously has turned into a bust.

The sorts of activities that are being engaged in today, should be of prime concern to everyone, regardless of party affiliation.

xtc

01-27-2006, 11:59 AM

<<Regarding affirmative action as a rule I am against it. I should point out that College admissions only consider African Americans and Hispanics on the basis of race, all other ethnicities do no qualify for affirmative action at Colleges.>>

[quote]That's completely false. Even asians are considered minorities at some schools. Men at some. Women at others. SUNY Geneseo gets men with lower scores. RIT the same with women. Why not just make it even? I mean, admission standards are standards, right? Higher education is a business. "Diversity" means more endowments. That's the only reason that it is done.

Personally I would end affirmative action at Colleges and Universities. My sister applied to several schools in the USA, she had a GMAT score of around 715 or so. She was born in Canada, so no American citizenship for her. Her husband is an American, who was living up here at the time. She was interesting in applying to US schools as her husband wanted to move back to the USA. One of her friends up here suggested she look into Affirmative Action College acceptance, she didn't feel comfortable with it but looked at it all the same. Every school she looked at only considered blacks and Hispanics for preferential treatment. As it turned out she had no problem getting accepted at several excellent schools on her merits. However INS dragged their heels so much that she ended doing her Masters in Canada. I guess having a Muslim last name didn't help her much. She was newly married and hadn't changed her ID, passport yet. The INS finally approved her application to do her MBA in the US after she had graduated her Masters up here. It was a real pisser as SMU offered her a full scholarship.

And on Union Energy. Which would you rather have, 1000's of pissed off employees, or 1 pissed off black guy? The President woulda been lynched for real had he stood up for the new guy. It's just how that kinda thing works. Hate exists. It's going to be there, no matter what. Blacks hate whites, too, you know. It's just as bad, really. Walk through Compton dressed as a Klansman. It would be just as bad as walking a back street in the deep south on the fourth of july in a Black Panthers shirt or daishiki. Yea, our ancestors did bad stuff to theirs, I didn't do anything, why should I pay? It'd get better after some of the generations die out, and that's the only solution. However, if we keep on the current trend of propogating the inequality, then it'll stay bad.

I thought integrity was an important quality for a CEO. I would have hoped he would have said such actions are despicable and not tolerated at Union Energy, that Union Energy had a excellent track record of hiring and promoting minorities, that this was an isolated incident and not indicative of the corporate culture at Union Energy.

Latrinsorm

01-27-2006, 03:45 PM

Which would you rather have, 1000's of pissed off employees, or 1 pissed off black guy? The President woulda been lynched for real had he stood up for the new guy.If the company was entirely composed of bigots, it's the responsibility of the CEO/bossman to clean some major house or absolutely remove himself from the company. If he didn't have the balls for that, the very least he could do was disallow hiring of minorities if he KNOWS that doing so puts them in danger.

radamanthys

01-27-2006, 05:59 PM

I don't think he was in danger, per se. I think what the employees did was in bad taste. I don't think that they're all racists or bigots or whatever. Usually workers in those situations are a tight-knit group. My guess, given the president's response, is that they harass all new-comers, and this just happened to cross the line. Same with the guy at Syracuse University who went on Halloween in blackface. He was put under incredible duress for that.

Also, I'm not a bigot by any stretch of the imagination. I'm saying there's a double standard that noone quite realizes, especially if you called my comment bigoted. Try and have a debate where we're not throwing names out, especially ones that aren't true.

Latrinsorm

01-27-2006, 06:10 PM

If you say you're biased against a particular group, that's the definition of a bigot. That's like saying people shouldn't call you tall if you say you're 6'6".

radamanthys

01-27-2006, 06:15 PM

I'm not biased against anyone... I've just seen more black-on-white racism in my life. My point was that it exists on both sides of the spectrum? How is that bigotry? My bias was saying that seeing far more black-on-white than white-on-black, and posting from that perspective.

Back

01-27-2006, 06:29 PM

The first post is completely unnecessary. Tell me how is that bullshit productive other than being jack-off material for liberal-haters?

The op-ed from the conservative source, while coming off like a typical GOP damage control piece, is at least trying to be civil and presenting some facts.

I don’t know if the whole wiretapping issue is illegal but I do know that it is not a partisan issue and maybe even less about actual wiretapping and privacy. Senators, Representatives and judges from both sides have taken issue with this because the executive branch excluded them from the process.

Yes, I am quoting myself. Just to get the thread back on track. And I really have nothing more to add to the original thread.

Actually I do have something to add to this thread. Seeing as it is a bipartisan issue, the only people playing partisan politics over it is the administration and devout/zealot/puppet-head republicans.

xtc

02-18-2006, 02:30 PM

If you say you're biased against a particular group, that's the definition of a bigot. That's like saying people shouldn't call you tall if you say you're 6'6".

I think you mean prejudiced not biased. Biased means in favour of, not against, while prejudiced can mean in favour of or against. However if you are prejudiced against a certainly group based on race that is the definition of racism.

From the Oxford dictionary:

racism

• noun 1 the belief that there are characteristics, abilities, or qualities specific to each race. 2 discrimination against or antagonism towards other races.

I think your example is invalid.

Latrinsorm

02-18-2006, 02:48 PM

Bias and prejudice are synonyms in my dictionary.

<< I think your example is invalid. >>

A person whose height is 6'6" is tall. They are not tall for a NBA player, but they are tall. Similarly, a space shuttle is fast, but a space shuttle is not fast for a photon. We agree that a person who holds biases (or prejudices) against a particular racial group is a bigot.

Thus:

A person who displays the charcteristic of being X is Y.
A person displays X characteristic.
A person disagrees with being described as Y.

X can be 6'6" or being prejudiced against a racial group. Y is tall or a bigot, respectively. The logical form is the same, therefore the one situation is like the other.

xtc

02-19-2006, 02:09 AM

Bias and prejudice are synonyms in my dictionary.

They can be, but only if you mean prejudice in favour of, bias is never against, only in favour of:

From the Oxford dictionary:

bias

• noun 1 inclination or prejudice in favour of a particular person, thing, or viewpoint

<< I think your example is invalid. >>

A person whose height is 6'6" is tall. They are not tall for a NBA player, but they are tall. Similarly, a space shuttle is fast, but a space shuttle is not fast for a photon. We agree that a person who holds biases (or prejudices) against a particular racial group is a bigot.

Thus:

A person who displays the charcteristic of being X is Y.
A person displays X characteristic.
A person disagrees with being described as Y.

X can be 6'6" or being prejudiced against a racial group. Y is tall or a bigot, respectively. The logical form is the same, therefore the one situation is like the other.

My mistake I misread your post, you are correct it is a relatively vaild example. I blame it on the flu.

Skirmisher

02-19-2006, 02:43 AM

This reminded me of a New York Times article i had read and put aside.

I know it is not a two sentance blurb but I think those that take the time to read it will find it interesting.

WEEK IN REVIEW DESK

THE NATION: Private Lives; The Agency That Could Be Big Brother
By JAMES BAMFORD (NYT) 1715 words
Published: December 25, 2005

Washington - DEEP in a remote, fog-layered hollow near Sugar Grove, W.Va., hidden by fortress-like mountains, sits the country's largest eavesdropping bug. Located in a ''radio quiet'' zone, the station's large parabolic dishes secretly and silently sweep in millions of private telephone calls and e-mail messages an hour.

Run by the ultrasecret National Security Agency, the listening post intercepts all international communications entering the eastern United States. Another N.S.A. listening post, in Yakima,Wash., eavesdrops on the western half of the country.

A hundred miles or so north of Sugar Grove, in Washington, the N.S.A. has suddenly taken center stage in a political firestorm. The controversy over whether the president broke the law when he secretly ordered the N.S.A. to bypass a special court and conduct warrantless eavesdropping on American citizens has even provoked some Democrats to call for his impeachment.

According to John E. McLaughlin, who as the deputy director of the Central Intelligence Agency in the fall of 2001 was among the first briefed on the program, this eavesdropping was the most secret operation in the entire intelligence network, complete with its own code word -- which itself is secret.

Jokingly referred to as ''No Such Agency,'' the N.S.A. was created in absolute secrecy in 1952 by President Harry S. Truman. Today, it is the largest intelligence agency. It is also the most important, providing far more insight on foreign countries than the C.I.A. and other spy organizations.

But the agency is still struggling to adjust to the war on terror, in which its job is not to monitor states, but individuals or small cells hidden all over the world. To accomplish this, the N.S.A. has developed ever more sophisticated technology that mines vast amounts of data. But this technology may be of limited use abroad. And at home, it increases pressure on the agency to bypass civil liberties and skirt formal legal channels of criminal investigation. Originally created to spy on foreign adversaries, the N.S.A. was never supposed to be turned inward. Thirty years ago, Senator Frank Church, the Idaho Democrat who was then chairman of the select committee on intelligence, investigated the agency and came away stunned.

''That capability at any time could be turned around on the American people,'' he said in 1975, ''and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesn't matter. There would be no place to hide.''

He added that if a dictator ever took over, the N.S.A. ''could enable it to impose total tyranny, and there would be no way to fight back.''

At the time, the agency had the ability to listen to only what people said over the telephone or wrote in an occasional telegram; they had no access to private letters. But today, with people expressing their innermost thoughts in e-mail messages, exposing their medical and financial records to the Internet, and chatting constantly on cellphones, the agency virtually has the ability to get inside a person's mind.

The N.S.A.'s original target had been the Communist bloc. The agency wrapped the Soviet Union and its satellite nations in an electronic cocoon. Anytime an aircraft, ship or military unit moved, the N.S.A. would know. And from 22,300 miles in orbit, satellites with super-thin, football-field-sized antennas eavesdropped on Soviet communications and weapons signals.

Today, instead of eavesdropping on an enormous country that was always chattering and never moved, the N.S.A. is trying to find small numbers of individuals who operate in closed cells, seldom communicate electronically (and when they do, use untraceable calling cards or disposable cellphones) and are constantly traveling from country to country.

During the cold war, the agency could depend on a constant flow of American-born Russian linguists from the many universities around the country with Soviet studies programs. Now the government is forced to search ethnic communities to find people who can speak Dari, Urdu or Lingala -- and also pass a security clearance that frowns on people with relatives in their, or their parents', former countries.

According to an interview last year with Gen. Michael V. Hayden, then the N.S.A.'s director, intercepting calls during the war on terrorism has become a much more complex endeavor. On Sept. 10, 2001, for example, the N.S.A. intercepted two messages. The first warned, ''The match begins tomorrow,'' and the second said, ''Tomorrow is zero hour.'' But even though they came from suspected Al Qaeda locations in Afghanistan, the messages were never translated until after the attack on Sept. 11, and not distributed until Sept. 12.

What made the intercepts particularly difficult, General Hayden said, was that they were not ''targeted'' but intercepted randomly from Afghan pay phones.

This makes identification of the caller extremely difficult and slow. ''Know how many international calls are made out of Afghanistan on a given day? Thousands,'' General Hayden said.

Still, the N.S.A. doesn't have to go to the courts to use its electronic monitoring to snare Al Qaeda members in Afghanistan. For the agency to snoop domestically on American citizens suspected of having terrorist ties, it first must to go to the Foreign Intelligence Surveillance Court, or FISA, make a showing of probable cause that the target is linked to a terrorist group, and obtain a warrant.

The court rarely turns the government down. Since it was established in 1978, the court has granted about 19,000 warrants; it has only rejected five. And even in those cases the government has the right to appeal to the Foreign Intelligence Surveillance Court of Review, which in 27 years has only heard one case. And should the appeals court also reject the warrant request, the government could then appeal immediately to a closed session of the Supreme Court.

Before the Sept. 11 attacks, the N.S.A. normally eavesdropped on a small number of American citizens or resident aliens, often a dozen or less, while the F.B.I., whose low-tech wiretapping was far less intrusive, requested most of the warrants from FISA.

Despite the low odds of having a request turned down, President Bush established a secret program in which the N.S.A. would bypass the FISA court and begin eavesdropping without warrant on Americans. This decision seems to have been based on a new concept of monitoring by the agency, a way, according to the administration, to effectively handle all the data and new information.

At the time, the buzzword in national security circles was data mining: digging deep into piles of information to come up with some pattern or clue to what might happen next. Rather than monitoring a dozen or so people for months at a time, as had been the practice, the decision was made to begin secretly eavesdropping on hundreds, perhaps thousands, of people for just a few days or a week at a time in order to determine who posed potential threats.

Those deemed innocent would quickly be eliminated from the watch list, while those thought suspicious would be submitted to the FISA court for a warrant.

In essence, N.S.A. seemed to be on a classic fishing expedition, precisely the type of abuse the FISA court was put in place to stop.At a news conference, President Bush himself seemed to acknowledge this new tactic. ''FISA is for long-term monitoring,'' he said. ''There's a difference between detecting so we can prevent, and monitoring.''

This eavesdropping is not the Bush administration's only attempt to expand the boundaries of what is legally permissible.

In 2002, it was revealed that the Pentagon had launched Total Information Awareness, a data mining program led by John Poindexter, a retired rear admiral who had served as national security adviser under Ronald Reagan and helped devise the plan to sell arms to Iran and illegally divert the proceeds to rebels in Nicaragua.

Total Information Awareness, known as T.I.A., was intended to search through vast data bases, promising to ''increase the information coverage by an order-of-magnitude.'' According to a 2002 article in The New York Times, the program ''would permit intelligence analysts and law enforcement officials to mount a vast dragnet through electronic transaction data ranging from credit card information to veterinary records, in the United States and internationally, to hunt for terrorists.'' After press reports, the Pentagon shut it down, and Mr. Poindexter eventually left the government.

But according to a 2004 General Accounting Office report, the Bush administration and the Pentagon continued to rely heavily on data-mining techniques. ''Our survey of 128 federal departments and agencies on their use of data mining,'' the report said, ''shows that 52 agencies are using or are planning to use data mining. These departments and agencies reported 199 data-mining efforts, of which 68 are planned and 131 are operational.'' Of these uses, the report continued, ''the Department of Defense reported the largest number of efforts.''

The administration says it needs this technology to effectively combat terrorism. But the effect on privacy has worried a number of politicians.

After he was briefed on President Bush's secret operation in 2003, Senator Jay Rockefeller, the Democratic vice chairman of the Senate Select Committee on Intelligence, sent a letter to Vice President Dick Cheney.

''As I reflected on the meeting today and the future we face,'' he wrote, ''John Poindexter's T.I.A. project sprung to mind, exacerbating my concern regarding the direction the administration is moving with regard to security, technology, and surveillance.''

Senator Rockefeller sounds a lot like Senator Frank Church.

''I don't want to see this country ever go across the bridge,'' Senator Church said. ''I know the capacity that is there to make tyranny total in America, and we must see to it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.''