F.U. right wingers. NSA eavesdropping program ruled unconstitutional

[chequita guevara]

Originally posted by Ogie Oglethorpe
Who should we trust, those who answered back in 78 such as Jimmy Carter

In 1978, Carter was not part of the legislature, so his opinion isn't relevant as to what the legislative intent was.

[Ogie Oglethorpe]

Originally posted by chegitz guevara


The reason why the judge's decision seems so weak is that she had only one side's argument to consider! The Bush Administration refused to make any arguments other than that the court should dismiss the case on the grounds of national security and that the AUMF granted the Bush Administration the power to do what it's doing (the later has been totally kabashed by Hamdan). The judge even ordered them to argue the merits of the case, and they refused!!! They didn't even dispute the standing of the plaintiffs to bring suit!



Everything the judge ruled on was, by statute, undisputed fact! They have almost no grounds for appeal!!!

No everything the judge ruled on was the constitutionaility of the program not the applicability of statute. She specifically ignored statutorial arguements as she already made up her mind the program was unconsitutional. In order to do so (understand constitutionality) she should have at least referenced other court cases and the opinions so rendered other than cherry picking Keith and Youngstown (which have little to no bearing on the subject at least siginificanbtly less so than the appelate cases affirming the constitutional authority of the executive and how warrant less foreign surveilance does not violate 1st and 4th amendment clauses.)

Either the Feds are complete idiots or they are trying to cause a Constitutional Crisis.

Actually I expect the Feds realized quite quickly that the ACLU had done their due dilligence regarding venue shopping and that for them to shoot their full quiver of arguements at this stage would be assinine.

[Ogie Oglethorpe]

Originally posted by chegitz guevara


In 1978, Carter was not part of the legislature, so his opinion isn't relevant as to what the legislative intent was.

Merely the executive tool who signed it into law all the while saying he wasn't planning to follow it as it impeded his constitutional powers.

[Sikander]

Originally posted by NeOmega


Are 99.9% of teh NSA's searches and wiretaps done without oversight?



TO answer your question, and the question of every other person who keeps asking "why"


THE 4TH AMENDMENT, THATS WHY.

Wow, you ask a question that is answered in the quote in the same post, then you answer a question that isn't asked, contrary to your assertion that it was. Communicate much?

[Sikander]

Originally posted by chegitz guevara

I don't think the legislature in 2006 knows what the intent of the legislature in 1978 was. We could ask those who created the bill.

I'm actually talking about the Iraq war resolution. My question about FISA has to do with whether or not it impinges on presidential authority as commander and chief. I have always felt that it did since I worked at NSA and found out how onerous it was from an intellignece standpoint. I don't disagree with its intent to protect Americans from politically motivated essentially private vendettas, but it's a serious albatross for people simply trying to stay one step ahead of the enemy.

[Ogie Oglethorpe]

Sixth, the court swiftly and dismissively rejected the administration's claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.

No doubt had the judge had the opportunity to, one would expect that this judge would have struck down even FISA as the judicial oversight employed to allow wiretapping does not count in the eyes of the law as a true warrant.

[Dinner]

So your arguement is that current Presidents have less war time powers because the Congress and the President jointly agreed to curtail those powers with laws like FISA? OK, that's all well and good but you are still ignoring the fact that FISA was a duly passed law which was signed by the President (in this case Carter) and has the full force of law.

Bush cannot just ignore the law by arguing that Presidents before the FISA law was passed didn't have to follow FISA (since it didn't exist at the time) so he shouldn't either. That is an absurd argument. The law does exist now, it was duly passed, and is now in force. The President must follow it.

[Vesayen]

"They have made their ruling, now let them enforce it."

This will be the trail of tears all over again, I know i'm crying.

[Ogie Oglethorpe]

Originally posted by Oerdin
So your arguement is that current Presidents have less war time powers because the Congress and the President jointly agreed to curtail those powers with laws like FISA? OK, that's all well and good but you are still ignoring the fact that FISA was a duly passed law which was signed by the President (in this case Carter) and has the full force of law.

Bush cannot just ignore the law by arguing that Presidents before the FISA law was passed didn't have to follow FISA (since it didn't exist at the time) so he shouldn't either. That is an absurd argument. The law does exist now, it was duly passed, and is now in force. The President must follow it.

Actually every president when they take the oath of upholding the constituion is tasked with understanding if given statues are constitutional. There have been many other precedents where the executive has disregarded statutes based upon their understanding and interpretation that a given statue is unconstituiotnal. Further the current executive given guidance from sealed case 002-001 would and should read that FISA can not contstrain their ability to issue warrantless foreign surveilance orders only that the FISA 'warrants' may give such authority for the executive orders to be considered evidenciary in select certain cases if criminal prosecution were considered.

This was yet another area where Diggs refused to comment/consider in her ruling. The fact that Diggs struck down the program as violating 1st and 4th ammendments was flatly considered at least in 5 separate appelate court rulings and found in every instance to be a constitutionally mandated power of the exectuvie for purposes of foreign intel to prevent harm to national interests that did not violate 1st and 4th. Why she didn't consider or reference any of those cases baffles the mind.

So if one follows that the appelates did grant this as a given power of the executive then the question becomes one of, can the legislative statutorially constrain the exectuive in his given powers (according to the appelate courts). To answer that question one needs go to the constitution and powers of the various branches. See my earlier post discussing just that issue.

It comes down to a separation of powers issue. The president as found in the Youngstown case can not by executive order overrule statutory (legislative) mandates. AS clearly interstate commerce and domsetic affairs is the province of the legislative as much if not moreso than the executive. This would clearly be a case where the executive overstepped his authority and claimed powers reserved at least in part for the legislative.

But just as importantly, likewise the legislative can not pass statute that take away or limit constituional powers of the executive unless there is evidence that they likewise have some granted authority in that arena. When it comes to military disposition and use of military force (including intelligence gathering for national defense purposes) the legislative is relegated to declarations of war and

"To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;"

the latter which is commonly meant to be the adoption of UCMJ and the like but not the actual determination of how and when to use them. The legislative if anything has assumed (IMO) powers they were never intended to mess with. To have FISA step in and have judicial oversight even further complicates the matter because the judical has NO, NONE, NADA powers vested to them by way of the consitution to in anyway impede, instruct, or understand the implications of the executive in this arena.

The executive in accordance with his oath of office to uphold the constitution is duty bound to ignore that statue as a conseqeunce if no amenable, reasonable, and workable compromise can be made for puposes of comity. And truth be told every executive since 1978 has held they can do warrantless searches for foreign intel purposes and are not held to the statute this despite Carters signature in '78.

[Ogie Oglethorpe]

Ouch. Not an unexpected result that Diggs would be personally attacked by conservatives but the apparent transparency does not bode well.

NYT Editorial

Editorial
A Matter of Appearances

Article Tools Sponsored By
Published: August 24, 2006

When Judge Anna Diggs Taylor was given the job of deciding whether the Bush administration’s wiretapping program was unconstitutional, she certainly understood that she would be ruling on one of the most politically charged cases in recent history. So it would have been prudent for her to disclose any activity that might conceivably raise questions about her ability to be impartial. Regrettably, it was left to a conservative group, Judicial Watch, to point out her role as a trustee to a foundation that had given grants to a branch of the American Civil Liberties Union, a plaintiff in the case.

The foundation in question — the Community Foundation for Southeastern Michigan — is a large charity that gives out grants to a broad range of organizations engaged in community activity, including some regularly involved in litigation. The $125,000 in grant money directed to the state A.C.L.U. office over several years was for educational programs concerning issues unrelated to the wiretapping case, like racial profiling. While the judge clearly erred in not disclosing this involvement, it wouldn’t seem, based on the known facts, to rise to the level of a conflict of interest reasonably requiring that she recuse herself from hearing the case under existing ethics rules.

Judge Taylor’s role at a grant-making foundation whose list of beneficiaries includes groups that regularly litigate in the courts is still disquieting — and, even worse, it is not all that unusual for a member of the judiciary. The most important lesson here may be the wisdom of re-examining the sort of outside activities that are appropriate for sitting federal judges.

I blame Rove for allowing her to hear the case.

[Dinner]

Any judge will do. As long as the judge is honest then they will all come out agreeing that the President must follow the law. He cannot ignore duly passed and enacted laws when ever he feels like it.

I breathlessly await you telling us about yet more examples of Presidents not following FISA before FISA had ever been created. Please tell us why, at this time, the President can just ignore duly passed laws such as FISA. Hint: The short anwser is he can't.

[Ogie Oglethorpe]

Originally posted by Oerdin
Any judge will do. As long as the judge is honest then they will all come out agreeing that the President must follow the law. He cannot ignore duly passed and enacted laws when ever he feels like it.

I breathlessly await you telling us about yet more examples of Presidents not following FISA before FISA had ever been created. Please tell us why, at this time, the President can just ignore duly passed laws such as FISA. Hint: The short anwser is he can't.

I believe I have answered ad nauseum the rationale as to why presidents have the authority to ignore unconstitutional statues by virtue of them being officers of the constitution.

This is a widely held belief dating far back in US history.

In fact as recently as 1994 Clinton DOJ held the following:

As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

I also recommend reading the following submission to Spectre and Leahy

Morgan and Cunningham

Again most of this is tempest in a teapot anyway as most likely if operational details were disclosed the monitoring would be found to be outside jurisdiction of FISA anyway i.e outside US boundaries

[NeOmega]

Originally posted by Ogie Oglethorpe


Actually every president when they take the oath of upholding the constituion is tasked with understanding if given statues are constitutional. There have been many other precedents where the executive has disregarded statutes based upon their understanding and interpretation that a given statue is unconstituiotnal.

Let me get this strait, you are trying to sell us this program as legal, under the logic that since past presidents have taken it upon themselves to define the constitution (which, is clearly the domain of the judicial branch) that this president can do it too?

Is that what you are trying to say?

This is your typical partisan... "well, uhh.. THEY DID IT TOO!", just framed with better vocabulary and a much nicer dance around the facts.

All this opinion is doing, if this argument flies in the supreme court, is setting legal precedent for the next president, to claim the authority to defy the law, and say, their AG just didn't interperet the law that way.






And why would the NSA want to watch me? All I do is read at least 50% of media reports, as well as 90% of American casualty reports, both fatal and wounded, on icasualties.org. I mean, what regular person does this?

Then I spout "anti-american" stuff on message boards. Data mining, especially with web tracking habits included, could definitely have me defined as dangerous... especially to those who think "the president is always right"*

We'll see. One day, painful as it may be, a Democrat will take the oval office. And then right wingers will denounce all these rights being abused, rights they joyfully pissed away to George Bush.








*Steve Bradbury, Active Deputy Attorney General, in response to Sen. Leahy, July 12, 2006

[chequita guevara]

The transparancy's a non-issue.

[chequita guevara]

Originally posted by NeOmega
past presidents have taken it upon themselves to define the constitution (which, is clearly the domain of the judicial branch)

Actually, all branches have that authority. No one, however, has final say, not even the courts.