Legality of NSA Surveillance
I watched most of the Senate Judiciary Committee hearing on the NSA surveillance. Pretty good legal arguments on both sides. I thought AG Gonzales was effective. Gonzales made a few good points about past presidents that ordered interception of wire messages. According to Gonzales, President Wilson during WWI ordered the interception of each and every cable or telegraph communication going in and out of the country. Another example of a president spying on individuals within the US without warrant was during WWII. Roosevelt ordered wiretapping on communications to "learn plans of spies in the US and gave the military permission to listen to any communication going in or out of the U.S". Assuming Gonzales is representing these occurrences genuinely, which is a large assumption under this administration, President Bush has precedent on his side. Precedent is relevant to determine if he blatantly violated the law. The legal questions remaining are whether the Presidents Gonzales cites were acting lawfully. It seems to me that if FISA forbids Bush's behavior, then this will be a question of whether FISA is constitutional. If this becomes an issue as to the constitutionality of FISA, then Bush slides easily on this.(not that he would not otherwise considering the American people don't seem too concerned). I have not read through FISA and have not looked to the legislative intent. Nor have I reviewed the federal wiretapping laws. Both of these laws were passed after all of the previous administrations cited by Gonzales. The wiretapping laws were passed in response to the Nixon administration's corruption. So maybe these laws were clarifying the power of the president (i.e. limiting his authority). Considering the courts have not struck FISA or the wiretapping laws down, they are authoritative unless exceptions are carved into the rules. Just a few thoughts, here is the link, worth a watch.
posted by Bulldoza at 2/08/2006 06:18:00 PM
16 Comments:
RAM - under your view of the world, the Bush administration could send troops into the houses of every Arab in Michigan and drag them out into the street to be tortured - - - and Congress couldn't do a damn thing about it. True?
Well, I like how you use the rhetorical tactic, "the Bush administration." Oooooh, scary stuff!
This isn't a Bush administration issue, but a Constitutional one. Anyway, b/f I answer your question, would you agree with the general proposition that Congress cannot limit by statute an enumerated power of the Executive?
Answer me that and I'll think about your querry in the meantime.
(Insert insulting cartoon here)
ram
well, anyway, you haven't answered yet, but i'll answer your question. congress has already passed section 1983 to provide for redress of constitutional violations which is what any admin. would be doing if they went to Dearborn or Sterling Heights w here all the Arabs of Michigan live and simply dragged them out of there homes and t or tured them. your hypo is ludicrous and is not one upon which we should base our national security in war t ime. we are at war lest you forget. ram. (insert picture of kanye west as jesus here.)
Funny how just using the words "Bush administration" has a negative connotation even to you. Does this mean you're no longer within the 37% of Americans who support the "Bush administration?"
Or perhaps you only support this limited thing they're doing: willfully (and without any real explanation as to why) defying the entire FISA system set up by Congress to limit exactly what the President is doing. Nixon spied on us. Congress said screw that, and put the FISA system in place.
Now Bush is saying screw FISA. You're saying it's ok, because the President has a special "war power," (even though America has not declared war on anything but "terror" ... and "drugs" i suppose). So, are we at war? Seriously. And when will this "war" end? When we pull out of Iraq? But we're building permanent bases there. When "terror" disappears?" Seriously.
the war isn't going to end for a long time, buster! you still haven't answered ram's questions. so, you think congress CAN limit the war power? (and why do you degradingly refer to that power as a 'special' power....hell, it is the m ain function of the executive). was richard nixon spying pursuant to his "war power"? was his spying a legitimate use of that power or was the power a pretext? do you think bush is using a pretext here?
abe, answer ram's general question!
~~~~~~~~~~
Ok.
arm's general question:"would you agree with the general proposition that Congress cannot limit by statute an enumerated power of the Executive."
As I understand it, Congress can prescribe regulations governing the President, so long as the President is given the opportunity to veto the legislation. Carter didn't veto FISA.
Further, Congress has the power to ordain and establish courts. They established the FISA court - to which the President appoints judges. Is he above the judicial branch, too?
Hornbook law: where two laws conflict, regardless of priority of enactment, the more
specific law ordinarily controls the more general.
FISA = specific
Use of Force = general
Then it's clear that FISA controls, no?
That's right Rudy and look at the wording of Article II Sec. 2 [1]. Where is "war power". Whomever anonymous is, you argue ignoring application of law or you apply the law in a opinionated way. I understand the desire to do this, as you want your guy to come out ahead. But there are methods of interpreting and when that fails, you go to the Supreme Court to tell us where the constitutional boundaries lie. The broad surveilance of Americans (and that is what it is, even if the technology filters 99.9%) in our borders through wiretap is an instance where the boundaries of the president need to be established!
hornbook law 401 = know matter how specific a statute is, if it is unconstitutional, it is invalid.
and abe, i'd hate to tell you but Carter cannot waive a future president's powers. that is the most ridiculous arguemnt i've ever heard. that would be like if today's Congress past a law that said for a future Congress to change this law, they need a supermajority vote.
bulldoza, if you do not think there is such a thing as powers in times of war, then you are ignoring both long standing and recent precedent.
signed,
koramatzu aka ram
Wait a minute, arm... you are saying that if legislation is passed (or past) which regulates the executive office, and the president signs the regulation into law, that legislation is only a valid regulation of the executive office for the rest of that individual president's term? That is ridiculous.
Wait a minute, arm... you are saying that if legislation is passed (or past) which regulates the executive office, and the president signs the regulation into law, that legislation is only a valid regulation of the executive office for the rest of that individual president's term? That is ridiculous.
FISA was passed in 1978. Wouldn't your claim of unconstitutionality have been raised earlier, say in 1978?!
Besides, I don't think "all the president's men" are claiming that it's unconsitutional, just outdated.
actually, everyone on the Right is claiming it is unconstitutional to the extent that it infringes upon Executive powers, i'm not saying that that argument doesn't take some real persauding to win the day, but that is the real argument the Right is making here.....FISA takes away some plenary Executive powers.
next, abe, i'm saying that no president can waive constitutional powers for future presidents. that is all. of course if one president signs a law it is good until it is repealed or amended. but that is not true of laws that a president signs that waive presidential powers for future presidents which is what you seems to be suggesting carter did.
as for challenging the constitutionality of FISA in 1978 that is the lamest argument ever. just b/c something hasn't been challenged doesn't mean that it cannot be. ram
Perhaps, the constitutionality may be challenged ad infinitum. However, the mere fact that it hasn't been challenged until a despotic president violates it reeks to me of some after-the-fact justification of wrongdoing.
RAM, I listened to the vice president on NPR two days ago and not once did he raise the unconstitutional issue. He said that the wiretapping was authorized by the use of force authorization and that Congress was well aware of the program but only started chirping when it was leaked to the press.
That said, I'm sure it will take on a life of its own the deeper we go in this process. What this entire controversy exhibits the most is how powerful this president has become and how powerless and irrelevant Congress has devolved to.
what you heard the VP say is another position too, one that doesn't go to constituinal issue and one that the supreme court backed in the case of hamdi v. rumsfled a few years back. it is the more safe position. i hear what you are saying about FISa not being challenged but there really was no reason for these sorts of questions to come up in the last few decades. the prez was too busy getting head in teh oval office and lying about it.
I kinda enjoyed the "anonymous" posting just before this one. However, I encourage the writer to go find his (or her) crayons and try to color within the lines.
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