December 21, 2005

WAR?:

President had legal authority to OK taps (John Schmidt, December 21, 2005, ChicagoTribune)

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

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."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation.


Indeed, the notion that spying on the enemy isn't inherent in the war-making powers of a commander-in-chief is bizarre.

Posted by Orrin Judd at December 21, 2005 5:55 PM
Comments

Equally bizarre is the argument that a statute passed by Congress (FISA) can limit the constitutional powers of the executive.

Posted by: jd watson [TypeKey Profile Page] at December 21, 2005 6:57 PM

Pat Lahey's effort today to claim that the Clinton and Carter orders on warrantless surveillance involved only spying done from foreign embassies located within the U.S. sounded like something he was simply making up as he went along, when confronted with the actions of Bush's Democratic predacessors (aside from the people at Fox pointing out that the Clinton search warrant on Aldrich Ames involved a location nowhere near an embassy).

Posted by: John at December 21, 2005 8:13 PM

The president has just given himself the "legal" authority to spy on political enemies, including those in the Republican Party who cross him.

Enjoy.

Posted by: Rick Perlstein at December 21, 2005 11:51 PM

oooh, scary....

Posted by: oj at December 22, 2005 12:00 AM

Orrin, I was just in a frickin' room of conservatives where Karl Rove bragged about how he made a Republican congressman cry in front of his staff who was ready to cross him on a free trade vote. One of the mewling "leaders" in the room said he'd criticized that bill but he was sorry. Message received, apparently.

Loyalty within their caucus is much more important to them, especially as the wheels come off the bus, then practically anything else. You really think these guys would respect these guys privacy? You really think conservatives deserve the respect of having their privacy honored when they sit their and lick their leader's boots?

Posted by: Rick Perlstein at December 22, 2005 12:26 AM

I'm confused. Did that crying congressman call Al Qaeda or something? Because otherwise, I don't see what it has to do with anything.

(To answer my own question, it has nothing to do with anything, but Rick has a new hobbyhorse that he will wedge into various completely unrelated posts for a little while, as he did here and here, among other places.)

Posted by: Timothy at December 22, 2005 12:47 AM

Karl better get out and kick some Republican butt right now. There are way too many of Republicans on the Hill who are violating the Coach's maxim: "Don't think, you'll hurt the team." Anybody who makes Mike Dewine cry will be hero in Ohio. (No points for making Voinovich weep)

Posted by: Robert Schwartz at December 22, 2005 12:52 AM

Right. But conservatives aren't boot lickers at all.

Posted by: Rick Perlstein at December 22, 2005 1:21 AM

Makes you wonder what the president will do next? Request FBI files on his opponents?

Rick, are you saying that conservatives who do not behave according to your preferences should have their privacy rights revoked?

Posted by: Daran at December 22, 2005 3:27 AM

rick:

No, I don't much care about privacy. I do find fascinating though your assumption that in the terror investigations so far all of those whose privacy has been penetrated have been Democrats. Are no Islamicists Republicans?

Posted by: oj at December 22, 2005 7:25 AM

Let me explain this veeeeeeeeery slowly.

With no oversight, there is no way to keep the executive from spying on whomever they want.

Only his word.

"So far all those whose privacy has been penetrated" are Islamofascists? How do you know? You'll never know. That's the POINT.

Posted by: Rick Perlstein at December 22, 2005 9:52 AM

as usual , Rick P's comment :
'The president has just given himself the "legal" authority to spy on political enemies..'

reveals that he has lost the plot ..

An 'enemy' in this context means 'someone who is fighting the US in a WAR'.

And, no, Rick it's not likely that Congress will declare war against the Democrats anytime soon.

got it ?

Posted by: JonofAtlanta at December 22, 2005 9:52 AM

Rick:

is the statement 'Certain members of Congress reviewed the program twelve times since its inception' true or false?

if the statement is true, than you're statement regarding 'no oversight' is false.

correct?

Posted by: JonofAtlanta at December 22, 2005 9:56 AM

Rick, this has been going on for 4 years. Can you point to one person in America who has been arrested during that time for his political beliefs? I don't mean based on these intercepts. I mean for expressing political opposition to the President. Can you?

Posted by: Bob at December 22, 2005 10:14 AM

Rick, your first line of argument does seem to be with those in the Congressional Democratic leadership, who were informed by the White House about the warrantless searches but said nothing until the Times' story came out. You need to ask they why they didn't go public at the time with their objections, if they truly believed that the nation's civil liberties were in jeopardy (and an asnwer that "It would have cost us votes in the 2004 election" is not really a sign of dynamic leadership on their part).

Posted by: John at December 22, 2005 10:15 AM

You have to understand, Rick's position is that we aren't actually at war right now.

Posted by: oj at December 22, 2005 10:23 AM

Rick: I'm still waiting.

Posted by: JonofAtlanta at December 22, 2005 10:25 AM

Mr. Perlstein, are you literally a fly on the wall? If not, what were you doing in an expletive deleted room with Karl Rove and bunch of conservatives?

o/t What's your take on the Barrett Report and Able Danger? Are you kool with their being suppressed?

Posted by: erp at December 22, 2005 10:30 AM

In turn.

"An 'enemy' in this context means 'someone who is fighting the US in a WAR'. And, no, Rick it's not likely that Congress will declare war against the Democrats anytime soon."

Congress hasn't declared war against anyone. Bush hasn't had the stones to ask for a declaration of war. The Constitution grants sweeping wartime powers to a president with the guts to go before the American people and make a democratically accountable decision.

"Can you point to one person in America who has been arrested during that time for his political beliefs?"

Are you serious? Read this decision by the guy who the day before yesterday was one of the conservatives' darlings for the Supremes. http://tinyurl.com/8s44h

"who were informed by the White House about the warrantless searches but said nothing until the Times' story came out."

It is very sad indeed when good Americans like you folks turn themselves into transmission belts for propaganda. The congressmen said nothing because the wily administration gave them CLASSIFIED briefings, thereby rendering it ILLEGAL for them to talk about it.

erp, this should explain all:
http://tinyurl.com/9su7b

Bottom line is this: I'm beginning to become convinced that conservatives lust to become subjects, not citizens.

Posted by: Rick Perlstein at December 22, 2005 10:57 AM

next thing you know, laura bush will be illegally commandeering fbi files on people...

Posted by: psdc at December 22, 2005 11:09 AM

Rick:

you may be 'becoming convinced' of this and that, and some things may be 'very sad' to you, but you did NOT answer my question.

so, here it is, again:
is the statement 'Certain members of Congress reviewed the program twelve times since its inception' true or false?

if the statement is true, than you're statement regarding 'no oversight' is false.

correct?

Posted by: JonofAtlanta at December 22, 2005 11:10 AM

It's not a review in any Constitutional sense of the term if you can't discuss it.

You've read Jay Rockefeller's sealed letter, I take it?

Posted by: Rick Perlstein at December 22, 2005 11:12 AM

Rick: Are you serious? Jose Padilla! He was arrested for his political beliefs? For his opposition to the President's positions? That's your example!

Posted by: Bob at December 22, 2005 11:13 AM

Rick:

There's a difference between your personal opposition to the war and the notion we aren't in one duly authorized by our congress:

107th CONGRESS

1st Session

S. J. RES. 23

JOINT RESOLUTION

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This joint resolution may be cited as the `Authorization for Use of Military Force'.

SEC. 2. 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.

(b) War Powers Resolution Requirements-

(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Passed the Senate September 14, 2001.

Attest:

Secretary.

107th CONGRESS

1st Session

S. J. RES. 23

JOINT RESOLUTION

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Posted by: oj at December 22, 2005 11:14 AM

so, a legislative review that fails to meet your self-defined sense of 'Constitutionality' is equal to NO oversight.

is that your position?

Posted by: JonofAtlanta at December 22, 2005 11:15 AM

Also, Rick, ever hear of the Speech and Debate Clause of the Consitution?

Why don't you read it and tell me how Senator Rockefeller, for instance, could have been prosecuted for talking about the NSA intercepts on the Senate floor.

Posted by: Bob at December 22, 2005 11:20 AM

Perlstein:

Two questions.

Is suppression of the Barrett Report evil? (follow-up) - Is abuse of the IRS 'domestic spying'?

If Jay Rockefeller told Cheney a few weeks ago to keep up the work in chasing terror intelligence, and then started pulling letters out of his safe on Friday, is he evil?

This is just another lodestone for you and the left in your search to find the magic bullet that will bring down George Bush. Keep looking.

Posted by: jim hamlen at December 22, 2005 11:59 AM

Wow, dude is embarrassing himself. I suppose it was only a matter of time before the Rickster showed up here to comment on this topic.

Speak truth to power Ricky! When the Bushies come for you we've got your back. You're too fun to have around.

And remember when you use that mobile, Karl Rove is listening!

Posted by: Jim in Chicago at December 22, 2005 12:05 PM

C'mon, Rick, you don't even have Cass Sunstein on your side on this one. Margin call, bud. Sell out your position and be done with it.

Posted by: joe shropshire at December 22, 2005 6:04 PM

My last Q was posted at 11:15A
Bob's Q - 11:20A
Jim Hamlen's 2 Qs - 11:59A

(check the timestamp on this entry)

I went and played golf this PM (43 on the side, YESSS!!)

and come back and the esteemed Village Voice voice remains silent.

god, I love the blogosphere.

Posted by: JonofAtlanta at December 22, 2005 6:44 PM
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