Rush Limbaugh tells the truth about President Bush.
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Jamie Gorelick said it:
The president (you know, Bill Clinton) “has inherent authority to conduct warrantless searches for foreign intelligence purposes.”
How conveniently you exclude the context of that statement. Seems a little intellectually dishonest of you Brandon, unless of course you didn’t actually know the context and simply copy/pasted from your favourite conservative website.
Gorelick made that statement in 1994:
In its proper context, the statement takes on a very different meaning than the one you were implying, doesn’t it?
I’ll say it again: “Clinton did/said/screwed it” is not a legal argument.
Two wrongs make a right wing.
When did Limbaugh say that?
Great taking it out of context — you’ve saved me from going to Media Matters.
Brandon’s quote is not only out of context, it is inaccurate.
Gorelick actually said: “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.”
At the time, FISA did not cover physical searches. It was then expanded to cover such searches and require a warrant to conduct them. Clinton apparently then complied with FISA for physical searches as well as all others.
The Clinton administration was also open about its claim of power so that the issue could be fully addressed.
As AG Gonzalez stated – the Bush administration was not open about its desire to conduct warrantless wiretaps because it feared Congress would not authorize the exercise of such power. He unwittingly contradicts himself when he claims Congress authorized such power with the vote on the Afghanistan use-of-force vote.
Why do righties like Brandon have to rely on deception regarding this issue?
Why can’t they answer the question as to why Bush’s warrantless wiretaps could not be done under FISA?
President Clinton’s Associate Attorney General can answer why
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.”
FISA contains a provision making it illegal to “engage in electronic surveillance under color of law except as authorized by statute.” The term “electronic surveillance” is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication “sent by or intended to be received by a particular, known United States person” (a U.S. citizen or permanent resident) and the communication is intercepted by “intentionally targeting that United States person.” The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act’s prohibition on electronic surveillance.
has asserted…
Key words there Hedley. Bush is the only one to have actually created a program to follow up on that assertion. Clinton/Carter continued to seek FISA warrants. Bush broke the law, Clinton/Carter did not.
Try again.
Hedgiver,
Your first quoted paragraph is illogical. The second sentence doesn’t prove the first, as your quoted author deceptively suggests.
Gorelick’s quote does not even contain an assertion of “going beyond the act’s terms.” Why? Because the Act did not cover physical searches at the time.
Bush’s actions, on the other hand, directly contravene the Act’s warrant requirements. As Kevin Drum paraphrases one of the FISA judges, “Why do we even exist if the Bush administration claims absolute wartime power to do anything it wants without our approval?”
Apples and oranges.
Without congressional hearings Bush and his NSA will never give us enough information to judge on our own, but lets assume that that the current bush-defense hypothesis is correct: that new technologies or new methods of surveillance outstip the statutory authority of the FISA court making it necessary, in a state of emergency, for the executive to bypass the judiciary.
Under that assumption, my question to you Bushlickers is this: why, in all the years since 9/11, has Bush refrained from seeking a statutory solution to the problem (i.e. asking congress to amend FISA)?
…unless he WANTS to preserve for himself the right to self-declare (secretly) a state of emergency, override the fourth amendment, and spy on anyone his own attorney general will sign off on?
Me thinks that if a democratic president showed sign of wanting to do that, a lot of you on the right would be horrified — rightly so.
I really, really, hope that you Bush haters push the impeachment deal. Get every officeholder in the democratic party you can to make a public stand on it. Imagine the hearings on the evening news when al qaida terrorists and their friends in the US are identified, and the dems are identified as the party that says we have to impeach Bush for eavesdropping on the plans of people who are trying to kill us.
You democrats need a new political party. he one you’ve got seems to be broken.
DAMN Oliver, Curmudgeon, Macswain and the rest of you. If Clinton’s own Associate Attorney General can’t convince you (as someone on your side who probably both know the Constitution, statutory law, case law, and the powers of the Executive branch a hell of a lot better that any of you do,) then you really are definitely, as Oliver says we black people would commonly say, Stuck on Stupid.
Or did you not bother to read the entire article that Hedly linked.
“dems are identified as the party that says we have to impeach Bush for eavesdropping on the plans of people who are trying to kill us.”
Somebody has to stand up as the party of freedom, liberty, and democracy.
I am astounded at the utter cowardice of these so-called conservatives (a philosophy they have actually abandoned in favor of facism). They tremble as they see terrorists around every corner and under every rock. They are too fearful to stand up to a despot who uses their fears to keep them in submission. They are so afraid they have abandoned any true conservative principals.
The liklihood is that Bush and his co-conspirators have been doing plenty of spying on political opponents as well as terrorist threats. This is a gross abuse of power, a violation of federal law, and not only an impeachable offense, but a federal one as well.
Impeach, prosecute, then incarcerate all of these bastards. Then go back and take a look at the corruption of all his lifetime court appointees. Remove them if possible, because they will do long term damage to our institutions if we don’t.
Then go back and start releasing all of the documents secreted away by this administration. We may have some major surprises in store there.
And how are we going to rebuild bridges with the rest of the world who now view us as a joke?
Then take a look at all the changes this administration made in government statistical analysis of various economic indicators in order to obscure their missteps. Chances are we are going to find that the economy is in far worse shape than we realize, but that was their intent all along, to destroy all social programs.
We may never recover from this administration thanks to the efforts of a bunch of foul right-wing gutless cry-babies.
Marty, you should be the first to sign the following waiver, courtesy of Roger Ailes:
I, ___________________,
hereby waive any rights of privacy in my person, property, association, thought and/or expression that I have, had or claim to have under the federal and state constitutions, statutory law or regulation of the United States or any political subdivision thereof, decisional law, common law and/or any other source of authority, real or imagined, to the extent the waiver of such rights is, in the sole judgment of any military, law enforcement or national security employee of the United States, deemed necessary to prosecute the war on terror.
This waiver applies both retroactively and prospectively.
_____________________________
(Signed)
Hmm. Let me paraphrase Buma.
-I don’t really have any good argument (statutory or Constitutional) against what John Schmidt wrote, so I’ll just try to baffle you with some unrelated BS.
Drop the rhetorical wretching and try to come up with something that will make a legitimate point. You’re way off base with that one.
mr.curmudgeon, you are assuming that Presidents Carter and Clinton didn’t have such a program. We really don’t know, because if they did, it was never leaked. I would be very surprised, however, if in fact President Clinton did not have such a program after the first World Trade Center bombing.
macswill, we all know that your reading comprehension skills leave something to be desired, but what part of the following do you not understand:
Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.
In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that “All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence … We take for granted that the president does have that authority.”
Elrod-
I am no lawyer, but I think the argument Bush & Gonzales are making re FISA is that his power to to do the warrantless NSA wiretaps is rooted in the constitution, and that therefore he is not circumventing FISA as much as pursuing a parallel track to it. If that’s the case only the supremes can make a definitive ruling on his actions or congress by the impeachment mechanism.
But like I said, I’m not a lawyer.
JSStewart-
You’re so far in the feverswamp that you probably didn’t even notice that you went from “The likelihood is that Bush and his co-conspirators have been doing plenty of spying on political opponents as well as terrorist threats” to “Impeach, prosecute, then incarcerate all of these bastards. Then go back and take a look at the corruption of all his lifetime court appointees. Remove them if possible, because they will do long term damage to our institutions if we don t.”
Gee, isn’t going from a liklihood of guilt to conviction and condemnation without a trial the mark of a ‘fascist’? And you really drop out reality when you say “This is a gross abuse of power, a violation of federal law, and not only an impeachable offense, but a federal one as well.” An impeachable offense is anything congress decides to call an impeachable offense. Jaywalking could work, or growing an ugly beard. And I have no idea why you through in that bit about a federal crime. It doesn’t make sense no matter how you look at it.
Please pressure your democratic elected officials to go on record now that they want Bush impeached. This should make quite a difference in in next years elections, especially in those congressional districts that voted Bush for pres but kept their dem congressperson. About twice as many districts, by the way, than voted Kerry for pres and kept their repub congressperson. Do the math.
Schmidt is only partially right. Yes, every President would like the authority to wiretap without warrants. But as Schmidt mentions himself, in his estimation, the scope of FISA is a bit unclear. So does that give the President license to do whatever he wishes, without even getting the FISA court (or any other court) to agree? No. Presumably the FISA court knows its own boundaries. It knows what a “foreign person” and a “US person” is. If the FISA court determined under the FISA law that the people under potential surveillance by Bush are within the scope of the law then the President must get a warrant. If the FISA court determines that the surveillees are outside the scope of FISA, then the President does not need warrants. The FISA court is in the judicial branch and its job is to interpret the law. The Executive does not get to interpret the law without judicial oversight. Circumventing FISA outright, which Bush appears to have done, is illegal.
So Marty, I take it you are refusing to sign the waiver. Put up or shut up.
Sorry Hedly, but what Schmidt slyly left out of his article was this…
Actually, the quote doesn t begin with the word all ; it begins The Truong court, as did all the other courts& The Truong case was decided in 1978 the same year FISA was passed and did not deal with the FISA law. As the court noted right before the excerpt, Truong dealt with a pre-FISA surveillance& it had no occasion to consider the application of the statute& The Truong case dealt with the President s power in the absence of a congressional statute.
This is critically important because FISA specifically prohibits the warrantless domestic searches that the President authorized. As Chief Justice Roberts explained in his recent confirmation hearings, referrencing the landmark Supreme Court case Youngstown Sheet, where the president is acting contrary to congressional authority& the president s authority is at its lowest ebb.
The article also conveniently omits the two sentences after the excerpt:
It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President s constitutional power. The question before us is the reverse&
All the court is saying here is that whether FISA imposes limits on the President s authority is not an issue in this case. It was an issue in the Troung case but, as the court explains, [T]he question before us is the reverse.
Try again.
elrod, the FISA appeals court would not agree with you:
In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that All the & courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence & We take for granted that the president does have that authority.
There is a legal history that interprets the President’s inherent power to include warrantless searches for foreign intelligence-gathering purposes. Every president does not have to repeatedly return to the courts to ask “What is my authority”?
See, the problem is that for 3 years, Bush used this program in secret. Get it? Secret, there are no checks and balances. The author of that article (not the governing authority incidently) spells out the dangers toward the end:
” Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.”
And that is the rub. When enacted in secrecy, without oversight by the independent judiciary, and without moving for statutory expansion in congress, what we have is an unchecked power grab. How do we know such programs won’t be turned against political opponents? We don’t, we have to rely on the president’s word. And how good is that when he has to rely on the word of his personally appointed underlings. Even then, do you trust the next unknown president to have this power and the next?
Why did the president keep this program secret for 3 years? Because he knew it would create a shit storm and he would be forced to stop it by congress, or that limits and oversight would be placed upon the program if he could convince them it was necessary.
I don’t pretend to be a legal expert. I don’t know or want to know the fine points of laws concerning this. I assume that congress will move to place restrictions and oversight on any such programs in the future, now that they are aware. My problem, and I think it amounts to an impeachable offense, is that the president deliberately enacted the program in a way to circumvent congressional and judicial debate and authority. In other words, the President does not interpret the law, he enforces it, if a situation arises where the president deems it necessary to move into new areas, he has a constitutional duty to bring it before the court for legal interpretation and congress for legislative interpretation in a timely fashion, and particularly not to hide the activities from our judges and elected representatives because he believes they will not allow him to undertake these activities.
Stick?,
“Gee, isn t going from a liklihood of guilt to conviction and condemnation without a trial the mark of a fascist ?”
Gosh, did I say do all this without a trial? I don’t think so. Condemnation without a trial happens to be a mark of this administration.
“And you really drop out reality when you say This is a gross abuse of power, a violation of federal law”
Federal law states that wiretaps require warrants. Wiretaps without those warrants violate federal law. Duh. Welcome back to reality.
Right now MSNBC is polling (albeit an unscientific internet poll) around 87% believing that impeachment is appropriate in these circumstances.
As Republican corruption becomes more apparent, you may see some changes in voting patterns. Not all people are dipsticks…
Aware and unable to act in any way to debate, oversee or effect it.
If terrorists don’t assume their phone and electronic communications are monitored, they are stupid and incompetent. Remember, a court already existed to grant these wiretaps, and it was widely known it existed.
Improper usage of a secret program will come to light, without oversight? Give me a break. I am one of those people that believe that the constitution was written to help protect the citizens of this country from its government. And relying on someone to leak credible and verifiable information from top secret programs not monitored by our elected representatives and independent judiciary does not fit in with this view. The potential for abuse is built in to the way Bush undertook this endeavor, and that is my overriding problem with it. Next is that he undertook the endeavor in a way to deliberately circumvent congressional and judicial participation, oversight, debate and authority.
meatloaf, Schmidt left nothing out. You simply misinterpret the decision of the FISA appeals court.
The appeals court was essentially discussing the barrier between surveillance for foreign intelligence gathering and surveillance for criminal prosecutorial purposes as the lower FISA court had put restrictions on the FBI’s ability to use evidence gathered pursuant to FISA in criminal prosecutions. The court is saying that the president has the inherent authority to conduct warrantless searches for the purpose of gathering foreign inteliigence. It does not question that authority, and neither did the Truong court. This issue was whether or not the results of those searches, based on that inherent authority and with or without FISA, rose to the level of constitutional reasonableness required as to be admissible in a criminal prosecution.
Indeed, the appeals court found that it did, based on decisions of the Supreme Court in which examples of warrantless searches in specific circumstances (i.e., DWI stops) were held to be permissible.
Try again.
There might be legitimate reasons why a president would exercise this authority once, or multiple times over a short period, during a state of emergency and imminent threat.
There is NO reason why a president should continue to do so secretly for three years without even attempting to bring his actions under the purview of normal checks and balances (for instance, by encouraging congress to enact changes in the FISA act).
…unless that president is a tyrant at heart.
-HE defines when we are in a state of war
-HE defines who and who is not a terrorist
-HE decides who it is appropriate to surveill
-NO independent oversight from congress or the courts
That’s scary, and I DON’T thnk many of you wingnuts would be happy if president HIllary Clinton were wielding this untrammeled authority to ignore the IVth amendment. I wouldn’t be either.
Yeah, but at least Hillary wouldn’t lie about it, the way Bush has:
“[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”
Gutless liar.
Dave M., I did not misread it at all. You are correct the case was not about warrantless searches, however, the appeals court was pretty clear that the president has that inherent authority, “We take for granted that the president does have that authority.”
I did not say that the president’s “inherent constitutional authority to conduct warrantless foreign intelligence surveillance” was central to the appeals court’s decision. Again, their issue involved the traditional line between surveillance for intelligence-gathering purposes and surveillance for criminal prosecution purposes and whether or not the lower FISA court unduly restricted the FBI’s ability to utilize evidence gathered pursuant to FISA.
To say that the appels court somehow did not acknolwedge the president’s “inherent authority” when it states it flat out at least twice, is simply incorrect.
Hedley& I believe you misread the case you cited from the U.S. FISA Court of Review. That case did not authorize the type of warrantless searches that President Bush has admitted to making. It was simply not an issue before it as I believe has been stated in other commentaries. For instance, the court stated: We take for granted that the President did have that authority (to conduct warrantless searches to obtain foreign intelligence information) and, assuming that is so, FISA could not encroach on the President s constitutional power. The court was making these assumptions based on the Truong case and because the issue of the scope of the President s authority was not before it nor was it pertinent to the decision it was making. It was not expressing an opinion on that issue nor was it setting forth or clarifying a rule of law.
The court here held that FISA orders were not warrants (the government had, in fact, obtained a FISA warrant/order in the case at issue so contrary to your assertion, the case didn’t deal with the extent of presidential authority to conduct warrantless searches). However, since FISA orders are not warrants the court did look to see if the FISA statutes and authority granted under those statutes were constitutionally reasonable, much as it would in a warrantless search case. The court stated: & assuming arguendo that FISA orders are not Fourth Amendment warrants, the question becomes, are the searches (conducted with FISA orders) constitutionally reasonable. And in judging reasonableness, the instability of the Truong line is a relevant consideration. It concluded with this statement, Even without taking into account the President s inherent constitutional authority to conduct warrantless foreign intelligence surveillance (demonstrating once again that that particular issue was irrelevant to its decision), we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.
It s simply wrong to say that the Court here is saying that the President has the authority to conduct the type of intrusions that President Bush has admitted to making. It was not an issue before them and the language used by the Court demonstrates they were making their decision under the assumption that the President had such powers. In other words, whether the President did or did not have such authority didn t affect or influence its decision. It may be a fine point, but it is important to a fair reading of the case.
Hedley…No, you misread the court’s decision or rather attempt to read too much into it. As demonstrated by the quotes I offered in context as opposed to your out of context quote, as well as by the basic rules of appellate procedure (the court doesn’t and legally cannot decide issues not before it), the assumption the court made, that the president had such authority was simply legal shorthand to say it didn’t affect the court’s ruling.
You earlier claimed that the “… issue was whether or not the results of those searches (warrantless searches authorized by the president), based on that inherent authority and with or without FISA, rose to the level of constitutional reasonableness required as to be admissible in a criminal prosecution.” Again, not true. The court was deciding if the orders issued by a FISA court under the FISA statute comported with the Consitution. That’s a completely different issue than whether warrantless searches are authorized under presidential authority alone.
When the court says it “assumes” the president has such powers, that has import. In appellate practice, it means that the court isn’t challanging, questioning or deciding the issue on which the assumption is based. It is not questioning the assumption. nor is affirming its import. It is flat out wrong to suggest that it is a “recognition” of the authority of the president. Further, as you may or may not know, a court CANNOT decide issues not before it and the scope of any presidential power to issue warrantless searches outside the FISA issue presented here was not presented before this court. Even if this court were to attempt to issue such a broad order or recognition of a concept set forth in Truong and it’s progeny, a line of cases the court characterized as instable, it would not have any legal effect as again, it was not an issue before the court. To claim that the court under all the circumstances the court was “recogizing” such authority is clearly erroneous and seriously misstates what the case stood for.
Dave M. I did not misinterpret it and do not need a lesson on appellate practice. I did not say that the court was deciding “whether warrantless searches are authorized under presidential authority alone.”
However, the appeals court is clearly acknowledging the decisions of other courts finding that the president has the inherent constitutional authority to conduct warrantless foreign intelligence surveillance.” While that issue is not central to the issue before the appeals court, nor is it obviously decided upon by the appeals court, the appeals court is just as obviously not challenging the statement and “assuming it to be so.”
As I am sure you know, the issue of the president’s inherent authority does not need to be before the appeals court for it to merely state an opinion as to the findings of the other courts in the history it cites. Stating an opinion does not mean that the court is deciding anything. Moreover, that the highest court within the FISA framework at worst, “assumes” that the president may authorize warrantles searches, is quite telling.
If you want to argue semantics in that assuming something to be so does not mean it is being recognized to be so, knock yourself out.
Don’t really need to knock myself out Hedley. Other yourself and one other lawyer who seriously misread the opinion as well, no one in the admistration or otherwise is using the case you cite as authority for the proposition you cite. I think there’s a good reason for that.
If you say so. I never said the case was authority. It does, however, clearly recognize that the authority exists.
JSStewart wrote: “Gosh, did I say do all this without a trial? I don t think so. Condemnation without a trial happens to be a mark of this administration.” First the trial, then the execution? I’m criticizing your rhetoric. Don’t say “in all likelihood” he’s commited a crime followed by “Impeach, prosecute, then incarcerate all of these bastards.” You haven’t even claimed anyone’s guilt at that point, for God’s sake.
Your statement “This is a gross abuse of power, a violation of federal law, and not only an impeachable offense, but a federal one as well.” is ludicrous. What do you think impeachment is for, zoning violations? Do you think it’s a worse crime to violate, say, a federal law as such than a state law? In olden times federal crimes were considered worse to have committed because you couldn’t flee to another state to avoid prosecution. This wouldn’t apply to Bush, that’s why I said I couldn’t make sense out of your statement.
I was serious when I wrote that you dems, if you’re acting out ofprinciple, should try to impeach Bush. To do that you’re going to have to take back the House. Make sure that every candidate you run against a sitting republican congressman takes a strong, positive, vocal stand on impeaching Bush. If you have democrat congressman, make sure he supports impeachment or run someone who does support it against the congressman in the primary.
Of course, once Bush hears about that internet poll he may save you the trouble by fleeing the country before the lynch mob gets to the White House.
George Bush was FOR warrantless searches while he said he was AGAINST them. That means he is some kind of Flop Liar.
Let me make a distinction here. The activity in question seems to have been data mining, not wiretapping. Searching through huge amounts of communication looking to connect the dots.
Wiretaps affect a known person, place or thing. Data mining means everything is scanned for relevance. We may very well need different legal protections against Federal data mining. Legally, it may be different enough from wiretapping to exempt it from FISA.