Topic: Hey, checks and balances? What's that!? (Read 6293 times)

Demosthenes · « **on:** July 31, 2006, 07:42:50 PM »

This is incredible. That level of arrogance absolutely floors me.

Can I get a "hurrrr"?

pbsaurus · « **Reply #1 on:** July 31, 2006, 08:06:28 PM »

Indeed.

hackess · « **Reply #2 on:** July 31, 2006, 08:28:17 PM »

Hurrr.

Too bad I need to be a salon.com member to read the rest of the article.

xolik · « **Reply #3 on:** July 31, 2006, 08:45:03 PM »

Since I can't read the full article, I've got a naive question regarding this whole deal: Is this going to affect all future presidents as well or is it special to just the current one? If it affects all future presidents as well, how do you think the Republicans will react the minute a Democrat takes over the office with these newfound powers? I don't think the Republican leadership is thinking longterm here.

Seriously, though, what the fuck happened to the Republican party? The only thing I can think of off the top of my head is that they went mad with power. 40 years out of control and what do they do when they finally get it back? Flush it completely down the toilet. I want smaller government, lower taxes, reduced spending, responsible leadership, protection for our environment, a strong localized military, a focus on education, health care, and equal rights for all Americans. What have I gotten? A bloated government, slightly lower taxes, spending up the ass, inept leadership, a consistent fucking of the environment, lackluster educational support, health care that's gone nowhere, an active intrest in amending the Constituion to DENY rights for some Americans, and a military spread too far thin and under protected.

I got one out of nine. What the hell happened?

BizB · « **Reply #4 on:** July 31, 2006, 09:24:09 PM »

Republican: Campaign like Libertarian and govern like a Democrat.

At least with the Ds we know what we're getting. I'd never vote for the likes of the current Democrat party, but I'm certainly not voting Republican in the near future.

HOWARD DEAN 2008!!!!

can I get a hurrrrr?

12AX7 · « **Reply #5 on:** July 31, 2006, 09:40:28 PM »

pb for Pres!

Evonus · « **Reply #6 on:** July 31, 2006, 10:04:42 PM »

Quote from: BizB on July 31, 2006, 09:24:09 PM

Republican: Campaign like Libertarian and govern like a Democrat.

At least with the Ds we know what we're getting. I'd never vote for the likes of the current Democrat party, but I'm certainly not voting Republican in the near future.

HOWARD DEAN 2008!!!!

can I get a hurrrrr?

Heck no. Ross Pero!

hackess · « **Reply #7 on:** July 31, 2006, 10:07:03 PM »

If you're going to promote politicians who couldn't legislate their way out of a paper bag, at least spell their names correctly.

12AX7 · « **Reply #8 on:** July 31, 2006, 11:15:57 PM »

Quote from: BizB on July 31, 2006, 09:24:09 PM

can I get a hurrrrr?

Quote from: Evonus on July 31, 2006, 10:04:42 PM

Heck no. Ross Pero!

Same difference.

jeee · « **Reply #9 on:** August 01, 2006, 07:48:20 AM »

Well, it doesn't surprise me. You could see this sort of things coming when the Patriot Act was instated.

Demosthenes · « **Reply #10 on:** August 01, 2006, 11:13:11 AM »

Quote from: catwritr on July 31, 2006, 08:28:17 PM

Hurrr.

Too bad I need to be a salon.com member to read the rest of the article.

No you don't... I'm not.

Demosthenes · « **Reply #11 on:** August 01, 2006, 11:16:07 AM »

For those who don't want to click through Salon's ad to get to the article:

Quote

July 31, 2006 | With one piece of legislation, Sen. Arlen Specter seeks to expand the Bush administration's radical theory of executive power beyond the wildest dreams of Dick Cheney or even John Yoo. Just when it looked as though some semblance of checks and balances was being restored, Specter -- the Pennsylvania Republican who masqueraded for months as a tenacious opponent of the White House -- offers a bill that would strike an immeasurable blow for the Bush vision of an imperial presidency.

Specter's bill (S. 2543) is titled the National Security Surveillance Act, and it is framed as a series of amendments to the Foreign Intelligence Surveillance Act, known as FISA. The Senate approved FISA in 1978 in the wake of decades of eavesdropping abuses by the executive branch under both parties. FISA allowed aggressive eavesdropping by the president against terrorists and other enemies of the United States, but required that it be conducted with judicial oversight to ensure this awesome power would no longer be abused.

In reality, Specter does not want to amend the mandates of FISA so much as abolish them. His bill makes it optional, rather than mandatory, for the president to subject himself to judicial oversight when eavesdropping on Americans, in effect returning the nation to the pre-FISA era. Essentially, the president would be allowed to eavesdrop at will, precisely the situation that led to the surveillance abuses of the Nixon White House and J. Edgar Hoover's FBI.

Specter's bill will have three troubling consequences if it becomes law. First, it makes lawbreaking legal. When the New York Times revealed last December that the Bush administration has been eavesdropping without judicial approval for the past four years, it meant that the president has been systematically violating a law that makes such eavesdropping a crime punishable by up to five years in prison. If laws are to have any meaning, then elected officials cannot simply violate them with impunity. Specter's bill not only virtually guarantees there would be no consequences for this deliberate, ongoing criminality, but rewards and endorses the president's lawbreaking by changing the law to conform to the president's conduct.

Richard Nixon infamously told David Frost in a 1977 interview that, by definition, "when the president does it, that means it is not illegal." Specter, in effect, wishes to make the Nixonian theory of presidential infallibility the law of the land. In the process, he also embraces a more modern and equally extreme theory of presidential power, and that is the second alarming implication of his bill.

Specter's proposal is based on the plainly erroneous -- and truly radical -- premise that Congress has no power to regulate presidential war powers, as spelled out in Article II of the Constitution. That is the John Yoo/David Addington "president as monarch" theory that the Bush administration has been peddling to justify everything from the lawless detention of U.S. citizens to the use of torture as an interrogation tool to the president's deliberate violations of U.S. law governing eavesdropping.

Recent judicial decisions have signaled that the federal judiciary is increasingly willing to do what Congress has so glaringly failed to do in the Bush era -- that is, impose minimal limits on presidential power. The Supreme Court's recent decision in Hamdan v. Rumsfeld was hailed as a historic victory for the restoration of checks and balances. The narrow result of Hamdan was to declare illegal the Bush administration's military commissions at Guantánamo on grounds that they violated congressional law requiring that such tribunals conform to the Geneva Conventions. But the broader significance of Hamdan was that it reaffirmed the principle that the president is bound by the restrictions imposed on him by Congress, even with regard to the exercise of his war powers. In doing so, the Court rejected the radical Bush claim to unchecked presidential power in the area of national security.

Specter's bill single-handedly reverses the judicial pushback. With his proposed FISA bill, the senator takes the constitutionally guaranteed congressional power that was just reaffirmed by the Supreme Court and gives it back to the president. It was precisely this theory of unchecked presidential power that the Hamdan decision rejected as alien to the Constitution. Yet Specter's bill, at its core, endorses that theory, and Specter himself, in a Washington Post Op-Ed, justified his bill by espousing this view of unlimited presidential power. Specter argued: "The president's constitutional power either exists or does not exist, no matter what any statute may say."

Specter's justification for his bill is simply wrong as a matter of constitutional law. As Georgetown law professor Marty Lederman put it, Specter's constitutional argument is "utter malarkey" and rests on nothing more complex or noble than a "basic misunderstanding of modern separation-of-powers doctrine." Congress unquestionably has the power -- and has always had it -- to regulate the exercise of numerous presidential powers. Indeed, when Attorney General Alberto Gonzales testified before Specter's Judiciary Committee, even he told Specter that it is false to claim that Congress lacks the power to regulate or restrict "inherent constitutional powers" of the president:

GONZALES: Well, the fact that the president, again, may have inherent authority doesn't mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

Specter may not get it -- the main debate among law bloggers recently has been whether he really doesn't get it or is just pretending. Bush's handpicked attorney general, however, does get it.

But such discussions may be moot, if Specter has his way. The third and worst thing that Specter's bill would do is place the president's FISA decisions beyond any kind of meaningful judicial review forever, and immunize the Bush administration from any real scrutiny of the legality and constitutionality of its conduct. By design, it would all but kill the various lawsuits pending around the country that allege the president and various telecommunications companies acted illegally when they intercepted the communications of Americans without the warrants required by law.

Ever since the Bush administration's more legally dubious behavior came to light (such as torture, extraordinary rendition and warrantless eavesdropping), blocking judicial review of this conduct has been its paramount objective. To do so, the administration has continuously invoked the "state secrets" doctrine -- a legal weapon that presidents have used in very rare cases to block courts from adjudicating particular legal disputes on the ground that doing so would risk disclosure of vital state secrets. Because federal courts traditionally assume that the president acts in good faith when relying on this doctrine, they virtually always accept the government's argument. The Bush administration took what was a rare instrument and has used it to block virtually every judicial challenge with great success -- until very recently.

In two federal cases -- one brought by the Electronic Frontier Foundation against AT&T in San Francisco, the other brought in Michigan by the ACLU against the Bush administration -- the presiding federal judges have strongly signaled that they intend to scrutinize, rather than blindly defer to, the Bush administration's legal arguments in defense of its NSA warrantless eavesdropping program. And in a remarkable ruling in the EFF case last week, the court emphatically rejected the Bush administration's invocation of the "state secrets" doctrine and refused, at least for now, to dismiss the lawsuit -- the first time a federal court has squarely rejected a president's assertion of this claim. Along with Hamdan, this ruling leaves no doubt that courts are finally resisting the Bush administration's attempts to place its conduct beyond the reach of the law.

The Specter bill, however, solves this problem for the administration. Section 702(b) of the Specter bill, titled "Mandatory Transfer for Review," protects the administration in numerous ways from meaningful judicial review:

First, the bill requires that all pending cases challenging the legality of the NSA program be transferred to the secret FISA court, if the attorney general so desires, which he will. Second, it makes judicial review of the administration's behavior virtually impossible, as it specifically prohibits, in Sec. 702(b)(2), the FISA court from "requir(ing) the disclosure of national security information ... without the approval of the Director of National Intelligence of the Attorney General." That all but prevents any discovery in these lawsuits. Third, it authorizes, in Sec. 702(b)(6), the FISA court to "dismiss a challenge to the legality of an electronic surveillance program for any reason." Arguably, that provision broadens the authority of the court to dismiss any such lawsuit for the most discretionary of reasons, even beyond the already wide parameters of the "state secrets" doctrine.

Beyond its impact on those pending cases, the Specter bill would virtually ensure that all legal questions relating to warrantless eavesdropping -- including the question of whether warrantless eavesdropping violates the Fourth Amendment's requirement of probable-cause warrants for all searches -- be decided by the FISA court, which means that 1) only one side would be present in court to argue these issues (the Bush administration) and 2) all proceedings, including the decision itself, might very well be secret.

It is one thing for specific warrant applications to be conducted in secret, with only one side present, and with even the decision itself always sealed from the public -- the standard operating procedures for the FISA court. But those procedures are plainly inappropriate for deciding critical questions of constitutional law that determine the protections guaranteed by the Bill of Rights to all Americans against the government. The parameters of the Fourth Amendment and decisions as to whether our highest government officials have been continuously violating it cannot possibly be determined in secret and then kept secret from American citizens. Yet the Specter bill would ensure exactly that disturbing, and quite extraordinary, result.

MISTER MASSACRE · « **Reply #12 on:** August 01, 2006, 11:30:28 AM »

Honestly, what the fuck is going on down there, you guys?

TheJudge · « **Reply #13 on:** August 01, 2006, 11:35:15 AM »

I think he's on to something there...

*runs*

Demosthenes · « **Reply #14 on:** August 01, 2006, 11:55:41 AM »

Quote from: Lacerda on August 01, 2006, 11:30:28 AM

Honestly, what the fuck is going on down there, you guys?

Beats me. I've been trying to figure that out for years.

reimero · « **Reply #15 on:** August 01, 2006, 01:28:26 PM »

OMG WAT U MAEN CHEXXORZORZ ADN BALANZORZ

12AX7 · « **Reply #16 on:** August 05, 2006, 03:05:10 PM »

Rico · « **Reply #17 on:** August 06, 2006, 11:44:43 PM »

Guess this is good a spot to jump into the political discussions as anything... Anyone actually seen a copy of this proposed legislation? I tried to find it, but all I'm hitting on is opinion and no actual fact.

One point that I did notice everyone refrencing is this idea that NSA is spying on American citizens without going to court, which is pretty much untrue. There are laws in place that keep the NSA from targeting anyone talking to a US person, even if they're really bad people. These "warrantless wiretaps" are just the NSA monitoring bad foreigners, no matter who they're talking to. It's not the targeting of American's like everyone seems to think.

It's been a while since I've been around, so everyone may know that. It's just that nearly everyone I see throwing that term around either doesn't realize exactly what they're talking about, or flatly ignores it because it doesn't fit in with their idea of what's going on.

xolik · « **Reply #18 on:** August 07, 2006, 09:07:14 AM »

I'm glad you're back, Rico!

Rico · « **Reply #19 on:** August 07, 2006, 09:28:32 AM »

:p You're just glad to have some one back who'll disagree and then not run off crying when you guys start cutting into them

But thanks.

I'm glad to be back. Good to see you too, xolik.

Crystalmonkey · « **Reply #20 on:** August 07, 2006, 11:07:34 AM »

Quote from: Rico on August 06, 2006, 11:44:43 PM

Guess this is good a spot to jump into the political discussions as anything... Anyone actually seen a copy of this proposed legislation? I tried to find it, but all I'm hitting on is opinion and no actual fact.

One point that I did notice everyone refrencing is this idea that NSA is spying on American citizens without going to court, which is pretty much untrue. There are laws in place that keep the NSA from targeting anyone talking to a US person, even if they're really bad people. These "warrantless wiretaps" are just the NSA monitoring bad foreigners, no matter who they're talking to. It's not the targeting of American's like everyone seems to think.

It's been a while since I've been around, so everyone may know that. It's just that nearly everyone I see throwing that term around either doesn't realize exactly what they're talking about, or flatly ignores it because it doesn't fit in with their idea of what's going on.

http://emoglen.law.columbia.edu/CPC/NYT_15cnd-program.html

dcrog · « **Reply #21 on:** August 07, 2006, 11:15:22 AM »

Quote from: Rico on August 07, 2006, 09:28:32 AM

:p You're just glad to have some one back who'll disagree and then not run off crying when you guys start cutting into them

Do you mean that's not why you've been gone so long?

Welcome back Rico.

Rico · « **Reply #22 on:** August 07, 2006, 03:41:52 PM »

lol Not quite. Everytime I'd come home from a TDY, I had another waiting. I pretty much stopped going to any of my old haunts. Besides, cat's not talking to me anymore, so what's the point.

Edit to say:
Thanks Crystalmonkey. That'll take some reading, but I look forward to it. I'm cautious though, as I really don't have much faith in the accuracy of anything reported by the media these days.

Rico · « **Reply #23 on:** August 07, 2006, 04:28:23 PM »

I'd like to quote the article in order to point a few things out, if I could:

Quote

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

True, but the article implies that it was citizens of the US monitored, which isn't true. So if you're watching some one in Afganistan and they move to the US, in the past you had to stop monitoring them long enough to get a warrant, but not any more. That pause as they entered the US was ample time for them to disappear. Also, if they made any calls back to "base" those calls could not be tapped because they were coming from inside the US. Neither of which violates the rights of actual citizens, and in the rare case of accidental targeting of citizens, anything gained from it was destroyed(to the best of my knowledge).

Quote

The previously undisclosed decision to permit some eavesdropping inside the country without court approval represents a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

Also true, but it implies that it's because agents are concerned these actions are illegal. That's true to an extent, but NSA is very concerned with the idea that rights may accidentally be violated, so they work really hard to make sure it doesn't happen. This includes a constant questioning if what they're doing is legal or not. It's not specific to this debate, but simply something that's on-going in order to not cross a line that we(as citizens of the US) would not want some one crossing on us.

Mostly, the article wasn't bad. At least it mentioned there was another side to the arguement. My problems with it was the lack of actual evidence or anything concrete. Most of their "evidence" was centered around some anonymous officials and several unnamed senior officials of some type or another. Okay, so some folks believe there may be a problem, that makes sense. Then when they ask the administration about it, or any one of several public figures, they all refuse to comment. This is some how proof that there is a problem? Okay, maybe, but it's also just as likely they don't want to discuss it because it's classified.

The article also minimized the role the FBI plays in stuff like this. When NSA has proof that a US citizen has engaged in illegal activity, they hand it over to the FBI who then gets a court order to investigate before going after them. Even with foreign elements inside the US, I'm pretty sure they always get handed off to the FBI once they've obtained the warrant to monitor.

That's about all I could find in your article, Crystalmonkey. It was a decent read, but it was all opinion and unsubstantiated claims, and little fact. I'm not dead set on my opinion in this specific matter, but I know the laws and regs that govern how NSA collects, and everything I've ever seen was perfectly legal and not in conflict with the Constitution. I've also seen the pains folks go through in order to ensure the rights of US people are upheld. I've yet to see any real evidence that any rights have been violated or stepped on. All I've ever seen folks talk about is the fear it might happen, and then assume that because they fear it, it must be real. In fact, the only really legitimate arguements I've ever seen against stuff like the Patriot Act, and such, wasn't even over the "warrantless wiretap" compaint but something completely unrelated. I think it was made by Daria over at HN, in fact and I was really impressed by it. I'll try to find it again and link it so you can see one of the times I've changed my opinion.

News:

Recent Forum Posts

Shout Box

Author Topic: Hey, checks and balances? What's that!? (Read 6293 times)

12AX7

12AX7

12AX7