One of the great skills of Lord Voldermort’s President Bush’s supporters is that they know their Orwell, specifically 1984. They’ve got Goebbels‘ skill at redefining language so that both Democrats and the media simply must refer to “up” as “down” just to get past the gatekeepers of publicity. Here we go again with the newspeak where President Bush’s spy program has morphed into a “Terrorist Surveillance Program”.
So again, caca production has picked up.
On the left we’ve got the advantage of the truth being in line with the rhetoric, just as Jack Abramoff is a criminal Republican lobbyist in trouble for the business he did with Republican politicians, this is the president’s spy program where President Bush spied on Americans in America without a warrant he could have easily gotten. That’s just what it is. And people need to keep saying that until they’re blue in the face, because not only is it truth but it’s a counter to propaganda (I’m sure at the moment Pravda Fox News is busy changing all their chyrons to say “terrorist surveillance”).
For too long the left has let the right’s caca thrive on its own, thinking that simply debunking through an avalanche of factual research is going to do the trick. Facts are important, but they need concise phrases and mind-numbing repetition to back them up if the forces of evil are to be defeated.
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” . . .just as Jack Abramoff is a criminal Republican lobbyist in trouble for the business he did with Republican politicians . . .”
So if Abramoff had, for the sake of discussion, only directed his clients to cash out Democratic politicians, everything would have been okay? No corruption?
Oliver’s rhetoric gets weirder day by day.
If Abramoff had directed his clients to donate money to Democratic politicians in return for votes on legislation, it would be corruption. If Abramoff had given illegal contributions or unreimbursed favors, trips, gifts, meals to Democrats those Democrats could be facing the tough ethical and legal questions various Republicans are facing now.
No it wouldn’t be okay, and I’d be the first to say it. But that’s not what happened at all.
um, guys, the domestic spying …
Instead of throwing tantrums, you could provide an analysis as to why the FISA law is a constitutional limitation upon the executive given the AUMF.
Hoping for the best but preparing for the worst?
http://www.insightmag.com/Media/MediaManager/impeachment.htm
JWG –
We’re taking about the intent of Congress in authorizing war. Do you think that it was the intent of Congress to give the president unlimited powers including the authority to violate laws that Congress itself had passed? In other words, do you think that President Bush now has unlimited power to do anything he wants?
No one that I’ve seen disagrees that the executive has the power to authorize surveillance of hostile foreign powers. The debate is whether the President has the power to authorize the surveillance if it involves communication between a hostile and an American. I don’t think that translates into “unlimited power.” It is limited to intelligence gathering.
It seems to me that arguments need to be made which demonstrate two points:
1) The AUMF does not give the President the power to bypass FISA when it comes to gathering foreign intelligence.
2) FISA is a constitutional limitation on the executive power to gather foreign intelligence.
If congressional members did not intend to give the president the power to gather intelligence between al Qaida and Americans without a judicial warrant, then let them speak up and say so. Who is calling for the program to end?
“If congressional members did not intend to give the president the power to gather intelligence between al Qaida and Americans without a judicial warrant, then let them speak up and say so.”
First of all, the intent of Congress can be found IN THE FISA LAW! It contains a wartime provision that grants the president a 15-day window after a congressional declaration of war to conduct foreign intelligence electronic surveillance without a court order. The President has clearly exceeded that window.
Second, Tom Daschle has already made it clear that Congress did not intend to extend the President’s war making authority to within the United States in violation of the FISA law.
Third, Bruce Fein wrote in the WaPo:
“A cardinal canon of statutory interpretation teaches that a specific statute like FISA trumps a general statute like the congressional war resolution.”
THe FISA law is very carefully worded and extensive in its considerations of executive perogative granting not only the 15-day window but also ongoing allowance for warrantless wiretaps up to 72 hours. The administration has, however, since backed off its claims of the need for speed. Now they’ve shifted to the argument that the FISAcourt set too high a standard of proof: “probable cause.” Well there’s a very good reason why the standard is what it is in FISA, it’s called the Fourth Amendment. Now tell me that Congress intended to grant the President the right to violate the Constitution or thatthe Fourth Amendment places an unconsitutional limitation on Presidential power.
http://mediamatters.org/items/200601200011
“Probable cause” is only required for a warrant. Additionally, there are many, many cases determined by the courts where warrantless searches have been deemed legal. There’s that pesky “unreasonable” word in the Fourth.
UNITED STATES of America, v. Usama BIN LADEN
Dude try to pay attention:
The Bush administration was conducting warrantless searches on Americans as defined by FISA. That’s what they’ve admitted to doing. Foreign Powers and their agents don’t enter into it. When it comes to Americans the Fourth Amendment applies and can’t simply be waived away by the President.
JWG –
First, the case you cite deals with searches and wiretaps that took place overseas:
“El-Hage’s suppression motion raises significant issues of first impression concerning the applicability of the full panoply of the Fourth Amendment to searches conducted abroad by the United States for foreign intelligence purposes and which are directed at an American citizen believed to be an
agent of a foreign power. Although numerous courts and Congress have dealt with searches in the United States for foreign intelligence purposes and other courts have dealt with searches of foreigners abroad, we believe this to be the first case to raise the question whether an American citizen acting abroad on behalf of a foreign power may invoke the Fourth Amendment, and especially its warrant provision, to suppress evidence obtained by the United States in connection with intelligence gathering
operations.”
That is not what is happening with this NSA case. The wiretaps are of US citizens on US soil. You will note that the court writes in this decision that
“Congress has legislated with respect to domestic incidents of foreign intelligence collection, see FISA, 50 U.S.C. ” 1801 et seq. (1978), but has not addressed the issue of foreign intelligence collection which occurs abroad.”
So in the case that you cite, the court recognized that FISA is the controlling statute with regards to domestic surrveillance of United States persons and FISA says you have to have a warrant if there is there is “substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.”
JWG –
With regards to the lower standard for ordering a wiretap I think you need to read Glenn Greenwald today:
http://glenngreenwald.blogspot.com/2006/01/administrations-new-fisa-defense-is.html
I’d also like to put the shoe on the other foot for awhile and ask you: How does FISA constitute an unconstitutional limitation of Presidential power?
Yes, it was an example that the Fourth Amendment is not an absolute barrier to the executive branch gathering warrantless intelligence about American citizens.
And you should note that the court case I cited said:
There have been several cases that dealt with this issue and no court has ever ruled against the executive right to gather foreign intelligence involving American citizens. This is not a “domestic spying program” as long as it involves foreign powers.
The Constitution does not give the police a specific task, whereas the President is given the task of dealing with foreign affairs which has been repeatedly upheld by the courts to include intelligence gathering.
The argument is that the President has been given the exclusive right to gather foreign intelligence based on Article II and subsequent court rulings that further defined this specific executive power. Just as the President cannot limit Congressional power with an executive order, Congress cannot limit Presidential power given by the Constitution by enacting a law.
Probable cause is only required for a warrant. Additionally, there are many, many cases determined by the courts where warrantless searches have been deemed legal. There s that pesky unreasonable word in the Fourth.”
Okay I’m no legal scholar so could you please explain to me how the Fourth Amendment would have any power whatsoever if law enforcement agencies followed your standard? I understand that cops make “probable cause” calls all the time in the field, but if the subsequent searches turn up evidence of a crime it is still a judge that has to determine that the cops were justified. That’s exactly the standard that FISA puts in place, the attorney general can wiretap someone without a warrant for 72 hours before he has to go to a judge for a warrant. Can you give one case that supports your standard, that all an officer has to do is determine on his her own that search was reasonable without any further court decision required?
Are those people communicating with a foreign enemy, or are they just communicating with political opponents?
The question no conservatives want to answer, is would they feel comfortable with President Hillary having the power to wiretap American persons without a warrant.
Somehow I think these same traitors saying it’s ok now will suddenly find new reverence for the constitution.
“As has been outlined, no court, prior to FISA, that was faced with the choice, imposed a warrant requirement for foreign intelligence searches undertaken within the United States.”
But that’s exactly it: PRIOR to FISA. AFTER FISA the surrveilance of United States persons required a warrant. It’s pretty clearly stated in the law. Not even the decision you cite goes so far as to oveturn FISA and the need for a warrant.
Obviously, you read the part in which the court limited its decision to intelligence gathered abroad:
“In keeping with the precedents reviewed above, the warrant exception adopted by this Court is narrowly drawn to include only those overseas searches, authorized by the President (or his delegate, the Attorney General), which are conducted primarily for foreign intelligence purposes and which target foreign powers or their agents.”
So why are you trying to sugest that this decision has anything to do with, let alone indicates approval of, warrantless wiretaps on United States persons in the United States? The judges specifically intended to proscribe that interpretation. Why? Out of deference to the Fourth Amendment.
Furthermore, FISA does not prohibit the President from gathering intelligence in the United States through surrveilance of United States persons. It simply requires that he, or the attorney general, meet the standards of the Fourth Amendment before doing so. Tell me again where the President has the power to violate the Fourth Amendment or apply a lower standard to approve a search? Where in Article II does it say that the President has the right to do that?
Can you point to any case law that supports your argument that the President does not have to heed any law passed by Congress that he thinks limits his powers?
I already explained that I used the case to demonstrate that the Fourth Amendment has not been an absolute barrier on the executive’s power to conduct warrantless foreign intelligence searches when Americans are involved.
You and others keep screaming “Fourth Amendment…Fourth Amendment…waived away by the president”.
Since there has not been a court case that covers the specific NSA actions, obviously I cannot point to one. However, whenever the courts have considered the presidential power to conduct warrantless foreign intelligence searches, they have sided with the executive even when Americans were involved.
Will that happen in this case? I don’t know. But trying to throw Fourth Amendment generalities into this argument doesn’t work.
Each court reiterates that the president has an inherent constitutional authority to conduct warrantless foreign intelligence surveillance. These courts have also allowed that surveillance to include American citizens.
The debate will be about how much power the legislative branch has in limiting this constitutional mandate of the executive.
“But trying to throw Fourth Amendment generalities into this argument doesn t work.”
You’re application of this case to the current NSA scandal is a serious stretch. It is exactly these Fourth Amendment “generalities” as you call them that gave the court pause and compelled it to limit the scope of its decision entirely to intelligence gathering on foreign soil. Furthermore, the Court argued that inorder for even this exception to the warrant requirement to apply the Courth had to find that El-Hage was indeed an agent of a foreign power as defined by FISA:
“Before the Court can find that the exception applies to this case, it is necessary to show, first, that Mr. El-Hage was an agent of a foreign power; second, that the searches in question were conducted “primarily” for foreign intelligence purposes; and finally, that the searches were authorized by the President or the Attorney General.”
The court decided that El-Hage was indeed an agent of a foreign power but it did so using the standard of probable cause, as demanded by the Fourth Amendment and the FISA law, and not the lower standard that the Bush administration is now claiming it has the authority to apply:
“It is clear from the Court’s review of the evidence contained in the classified DCI declaration and in the materials considered by the Attorney General in issuing authorization for the post-April 4, 1997 surveillance and the August 21, 1997 search of El-Hage’s residence that there was probable
cause to suspect that El-Hage was an agent of a foreign power.”
Again, FISA makes it possible to wiretap American citizens on American soil if the President or the AG can prove to a FISA court that there is probable cause that the US person is an agent of a foreign power. So again, where’s the limit on Presidential power? All he has to have is proof to proceed.
Even in the case of this exception, however, the court required that “All warrantless searches are still governed by the reasonableness requirement and can be challenged in expost criminal or civil proceedings.”
What mechanism, exactly, has been set in place for anyone caught up in this secret NSA program to challenge the reasonableness of these searches in court? We’ve told that we’ve already busted people thanks to this program. We’re they or have they been allowed to know where the evidence against them came from? Or would that be considered a breach of national security? The FISA court itself complained about the NSA program because it was afraid that the NSA was using information obtained without a warrant in its applications for other warrants without informing the FISA courts where the information came from, thus tainting the entire process.
The court made its decision in the absence of any law or precedent governing intelligence searches on US citizens abroad and then clearly limited its decision to foreign searches in deference to the Fourth Amendment and FISA which clearly sets in place rules governing intelligence searches of US persons on US soil.
[...] f what conservatives are offering up. It s a smokescreen (or in Oliver-speak, caca ). Instead, let s critique the underlying conservative imp [...]