Port (yes, whine) Issue
 

I saw several of the members that were briefed interviewed (including Dashelle), and they all seemed comfortable with what was going on. However, some of them want to tweak the law going forward because they recognize that it is outdated to deal with the current threat.

Haven't read it and don't know enough to comment. I'll pass on the "how often do you beat your wife question" but assuming it was conducted as described, I think it is necessary. However, I'd like, if at all possible, for another branch to be in the loop.

I think the president has inherent powers to protect and defend the country against threats foreign and domestic. I don't see anything in Article I that limits that authority.

Port (yes, whine) Issue
 

If the story comes down to whether someone got a blow job or not . . .

Port (yes, whine) Issue
 

Well, it's not at all clear what they were told, and at least one of them (Rockefeller) wrote Cheney a letter to protest. He had to write it by hand, since the security regulations wouldn't let him use his secretary. If you think they were all "comfortable" with this, you haven't listened to them.

Well now, wait a second. You were the one who said it needed to be updated -- I just asked what you meant. How do you know the law doesn't work just fine?

And Bush didn't have to violate FISA for four years -- he could have brought another branch into the loop by (a) seeking warrants from the FISA court, or (b) asking Congress to amend the law. My question was about his choice to do neither of those two things. You can't say it's a "how often do you beat your wife" question, and then agree that it's the right point.

Did you look at Article I, Section 8? Congress gets to govern re the military in all sorts of ways. The question here is not what the President gets to do in the abstract -- it's what the President can do when Congress has passed a law very explicitly saying that he can't do it.

Port (yes, whine) Issue
 

One procedure's a lot more interesting than the other...

I miss Bill Clinton. I had a future then. I was going to get rich off those shares of a company that made voice activated toasters.*






* Actually, I did buy some stock that had some voice activated crap technology. My buddy told me his firm was pumping and dumping it. The pump part never happened. I'm the only guy who loses at fraud.

Port (yes, whine) Issue
 

Your article I is apparently incomplete:
Section 1: legislative power
Section 8, cls. 11-16 (relating to regulation of armies).

Where in Art. II does he gain "inherent authority"? He's supposed to execute the laws passed by Congress.

The problem here is what you should remember from the first year of law school: Jackson's opinion in Youngstown Sheet and Tube. When Congress has spoken on an issue and the president wants to act inconsistently, his power is at an ebb. This is not an area where it's ambiguous and left open. Congress specified procedures in FISA, has failed to change those procedures, yet Bush said "screw that process, I'm going to circumvent it."

I don't see how the "unitary executive" theory can be stretched so far as to permit actions directly contrary to what Congress has specified unless the Constitution commits to the sole discretion of the President a particular power. And, to anticipate the next step, his power as commander in chief doesn't get you there, because a) war had not been declared and b) even if it had, he was not commanding the army or military.

Port (yes, whine) Issue
 

You lost me there. Sorry, you are going to have to be patient because this is totally new to me.

Where does the FBI's power to wiretap come from? Same place right? But the FBI doesn't seem to get any power from this section because it does not have anything to do with national security or with the Presidents power as commander and Chief. Is the question whether Article II, Section II gives him the power to do certain type of wire taps? So maybe some types of wire taps are OK under section II and others are not?

Here is Article II, Section II

Section 2 - Civilian Power over Military, Cabinet, Pardon Power, Appointments

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Port (yes, whine) Issue
 

Off the top of my head, I'm not sure where the FBI's "power" to wiretap comes from. The police power? Delegation of the President's power to ensure that the laws are faithfully executed? Not Article II, Section 2, in any event, which has to do with the military. (The idea that Art. II, sec. 2 has anything at all to do with wiretapping is freakishly novel.)

FISA is a constraint on the FBI's power to wiretap. It is correct that some wiretaps are OK under FISA and some are not. As a rule, the FBI (or whomever) needs to get a warrant. FISA says this (and sometimes the Fourth Amendment requires it too).

Port (yes, whine) Issue
 

The FBI's power to wiretap generally speaking comes from its power to investigate crimes. Its power is limited by the fourth amendment. Its power is also limited by FISA, which specifies when wiretaps are allowed for national intelligence purposes (which is presumed to enjoy a lower threshold than for criminal investigation purposes).

Bush, however, has asserted that regardless of FISA, as commander in chief he has inherent authority to execute wiretaps without regard to the limits imposed by FISA. Implicitly he is claiming that that authority also supersedes the 4th amendment, although presumably he would argue that it does not, but as CinC he can determine that the searches are reasonable.

Port (yes, whine) Issue
 

Does the FBI have to get a warrant? It seems like yes, and that perhaps Bush could go get a warrant too, but that's sort of the distinction between the wiretaps he's authorized and the regular FBI ones.

Port (yes, whine) Issue
 

Huh? For all wiretaps one has to get a warrant. The difference is the level of proof required. The 4th amendment standard for criminal cases is relatively high. FISA lowers that burden, but with the tradeoff that the information can't be used for law enforcement purposes (that's the "wall" that we heard about in the 9/11 hearings). Bush claims that there's a third set of cases, defined by him, that allows FBI/NSA/CIA to make wiretaps without any kind of court approval, either before or after (which FISA provides for).

Port (yes, whine) Issue
 

Um, so Bush is saying he doesn't need a warrant? Or do you not (I don't do criminal) need court approval for a warrant?

ETA Spanky's question seems fairly basic, if he's asking why Bush's actions are being treated differently from the FBI's -- I'm trying to determine whether the answer is that Bush is not doing what the FBI does.

Port (yes, whine) Issue
 

Last I checked, the FBI is in the executive branch, as is the NSA. There's no relevant difference between the standards for anyone in hte executive branch under the constitution (there may be different statutory limits imposed).

Bush is saying he doesn't need court approval. I don't think he's claiming he can issue a warrant, which are traditionally issued only by a court. But it doesn't really matter whether he's claiming no need for a warrant or the right to issue them--the point is he's asserting that he does not need approval from the judiciary to instigate the wiretaps.

Port (yes, whine) Issue
 

Which would appear to answer Spanky's rather basic initial question.

Port (yes, whine) Issue
 

Don't do criminal? did you do bar exam?

Jesus. RT- any further action on the minor league forums I suggested?

Port (yes, whine) Issue
 

First you said:

Then you said:


So are most of the people, like you, that are complaining about the constitutionality of the wiretaps, basing their complaints ona freakishly novel approach? That seems to back up the argument that these people don't have much of a leg to stand on and it is just political hyperbole.

I think most people think of the wiretapping issue as a civil liberties issue and a violation of their consitutuional rights. That is the way the Dems are trying to spin it. But it isn't. All the calls either leave the US or originate outside of the US, and one has no constitutional right to privacy with those type of calls.

It may be a breach of FISA, but FISA restricts the Federal governments ability to use wiretaps beyond the limits set by the constitution. So this is not really a constitutional issue, but just one of the executive branch breaking a congressional law.

Port (yes, whine) Issue
 

OK this makes sense. So he is saying as commander and chief he has the authority to listend to foreign phone calls. I can see the argument.

So he is saying that FISA only limits his ability to wiretap, if the wiretaps are being used for criminal investigation but national security issues.

In other words FISA does not apply to national security. I understand but I don't buy it. It may not be unconstitutional but it is a violation of the law (FISA). If he don't like FISA time to amend it.

Port (yes, whine) Issue
 

Yes I believe that is correct.

I think you are making the mistake of not differentiating the types of wire taps. I don't think anyone has ever argued that a purely domestic call does not need a warrant. When I saw Cheney interviewed he was saying that all the wiretaps don't need a warrant because in all cases part of the calls are foreign. I believe he is right as far as the constitution is concerned. But I do think this is a violation of FISA. Congress can not abridge peoples rights but they can extend their rights, and that is what they did with FISA.

Port (yes, whine) Issue
 

You are correct (although I don't know enough about the Fourth Amendment in this context to be sure about that part). The issue is one of the executive branch wiretapping people for four years even though a federal statute makes it a criminal offense, and then asserting that the president has a right to ignore the law.

Port (yes, whine) Issue
 

The question I have is how do we know that the wire taps are not on domestic calls? This question is becoming a little more pertinent to me because I was just told by the Chief of Staff of a high ranking Republican that if I continue with my efforts to take out Delay, Doolittle and Pombo that not only was my political future dead, but my professional future also.

Professional future? What the hell does that mean? I buy and sell real estate. Are they going to figure out a way to disbar me? I am pretty sure this guy is just blowing smoke up my derrier but sometimes desperate people can do some pretty stupid things.

The thing that is pathetic is that these guys are making my job very easy. The more we research Pombo the more crap we find. The guy is just not the sharpest knife in the drawar when it comes to covering his tracks.

On Thursday I am throwing a fundraiser for Campbell who is Delays biggest rival and I am taking McCloskey to the convention this weekend. I am definitely not going to be the bell of the ball.

Port (yes, whine) Issue
 

Time for an update to the motto. "It's all fun and games until they take away your porn. Or start employing the Unitary Executive power to tap your calls."

Port (yes, whine) Issue
 

McCloskey? Jesus man, is he still continent?

Port (yes, whine) Issue
 

We don't. If you paid attention to the Attorney General's testimony before the Senate Judiciary Committee a few weeks ago, it plausibly sounded like he was trying to avoid talking about other programs that maybe hadn't been made public yet. Since the President claims the power to ignore Congress and the courts on matters relating to national security, and not tell anyone, and since national security is a pretty broad concept these days, you pretty much have to trust him.

That blows.

Port (yes, whine) Issue
 

From what Roberts says (and he is one of the few politician's that seems to shoot straight), Rockefeller sent the letter as a CYA.



I didn't realize the military was involved in the wire taps. Oh wait. They weren't.

Port (yes, whine) Issue
 

So how does the whole "commander in chief" thing justify the wire taps then?

The argument I've heard is that intelligence gathering is an inherent part of the military, even if it's not the army or navy that's doing the intelligence gathering.

Port (yes, whine) Issue
 

So you are saying that a high ranking Republican threatened to ruin politically and professionally a political rival? Nice.

I would imagine the threat would be simple to carry out, if you do not self-finance your investments. They simply call your bank and let them know all Republicans at the state and federal levels will be unable to address any of their concerns so long as they continue to extend you credit. When you move to the next bank: rinse, repeat.

Delay peddled influence to get good tables at nice restaurants. Why not for revenge?

Port (yes, whine) Issue
 

You are correct in your assumption that I'm basing this on a unitary executive theory and I think we differ on this in that you don't see his actions in the context of a war, where the president has always been granted/taken additional powers.

Answer me this . . . if in WWII, when the US was cracking the German codes, the Germans had a foothold in say, Florida, would the President be required to get a court order to intercept the communications?

Port (yes, whine) Issue
 

Pat Roberts is one of the biggest hacks in the Senate. Don't even get me started on him. How would he even know why Rockefeller sent the letter? And given the security requirements, what else was Rockefeller supposed to do? He wasn't allowed to discuss what he'd heard with anybody. We don't even know what he was told, since it's classified.

No shit. And yet the President is relying on Article II, Section 2, which refers to his power as Commander in Chief of the Army and Navy. Kind of makes you wonder.

eta: Although I've had this conversation in the comments on a conservative blog and have had conservatives tell me that, for various reasons, the NSA is essentially part of the military.

Port (yes, whine) Issue
 

If you're asking a question about FISA, which was not written until thirty years after WWII ended, it has provisions to ensure that the government doesn't need to get a warrant to spy on foreign powers.

Port (yes, whine) Issue
 

did the UN approve of this?

Port (yes, whine) Issue
 

You're the one who reads DU -- we all rely on you for that sort of insight.

Port (yes, whine) Issue
 

And this is exactly why it's outdated. Look, I started this whole conversation off by saying that I was not exactly comfortable with the wire tapping program, but we also don't know all the facts. If the wire taps were on non-citizens, I have absolutely no problem with them. If they were on citizens that were cooperating with the "enemy" it's a far more difficult issue. I just view the potential magnitude of the promlem so large that I'm willing to accept a curtailment of civil rights, but I certainly think their is a middle ground that could be reached.

Port (yes, whine) Issue
 

Also, you may want to consider that moderate Republicans are often hunted for sport by the Administration.

Port (yes, whine) Issue
 

Seems to me though that if the law is outdated, you change the law. You don't ignore the law all together and then say the criminal penalties for breaking that law don't apply because "the law is outdated."

This was a subject that needed to be considered and debated by the Congress.

Port (yes, whine) Issue
 

Silly! That's how things work in a Democracy.

Not here.

Port (yes, whine) Issue
 

Article written by a man named "Clay." Clearly, this dude has issues.

Port (yes, whine) Issue
 

The wiretaps were on citizens and non-citizens alike. And they were not tapping people who "were cooperating' with the enemy -- if they had even probable cause to believe that, it would have been a simple matter to get a warrant from the FISA court. (FISA doesn't totally ban the taps -- it says you have to get a warrant from a special, secret court, and it even lets the government get the warrant up to three days later if need be.)

No, the executive branch decided to circumvent the FISA court because it wanted to wiretap citizens in circumstances where it could not establish probable cause to get a warrant. That's the problem.

And instead of going to Congress to change the law, it secretly decided that it was above the law.

I think most reasonable people would be open to the idea of changing FISA if the reduction in civil rights was warranted by good intel. But press accounts suggest that these programs generated very little useful intel. And the problem is that if one branch is deciding for itself, there's no check on it's judgment about how to balance the benefits and harms. E.g., the requirement that a warrant issue is a way to make sure that a government official in another branch agrees that someone's civil liberties should be invaded.

The problem here is that Bush not only kept this quiet instead of raising it with the other branches -- he is asserting that as a matter of constitutional law, he is not obliged to listen to what they say at all.

Checks and balances, man. Maybe the framers' greatest innovation, and he's fucking with it.

Port (yes, whine) Issue
 

How about a chick named "Molly"?

(Same thing, but bitterer and funnier.)

Port (yes, whine) Issue
 

shouldn't you save your really good material like this for pillow talk rather than board correspondence?

Port (yes, whine) Issue
 

Because Bush said that they mostly aren't, mostly. Except when they might need to be, of course. But in that case, the White House will supervise itself some more, so we'll all be okay.

Checks, schmecks. Balances, schmalances. You elected him, he gets to be king.

Port (yes, whine) Issue
 

Right. Bush was sub-contracting. He's CinC, he can do that, too.