electronic surveillance by the government is strictly limited by our Constitution

Odd, I missed that part in my copy of the Constitution. What kind of electronic surveillance were they using in 1787?

Dave

You are correct, Dave. Electronic surveillance is not specifically addressed in the Constitution. The Fourth Amendment guarantees the right to protection from ANY warrantless search and seizure; executive authority or otherwise.

electronic surveillance by the government is strictly limited by our Constitution

Odd, I missed that part in my copy of the Constitution. What kind of electronic surveillance were they using in 1787?

Dave

I'd be freaking rich if I had a penny everytime I heard someone make that silly argument Nalle just made.

Great Article Gina.

My answer to the title would be because JUNIOR is THE DECIDER, what does he care?

Jeliel, Gina.

Explain to me please how accessing the records of communications through a publicly regulated media is the same as searching your home or business?

Dave

Well Dave, could it be that the 1934 Communications Act delineates and adds to the definitions of the 4th and 5th Amendments as they concern electric and electronic communications outlined by the Judicial branch via various case law and precedent since 1934 which requires a court ordered review and issuance of a warrantr before either tapping or gathering call records or documentation?

Could it be that FISA laws are also broken every time one of those warrantless taps goes onto an international call with one end in the US?

So it woudl seem, and we will have to wait for investigations and the courts to decide, but that would be the reasonable argument.

Add to it the illegality of the signing statements under strict constructionist views of Constitutional powers as allocated to the seperate but equal three brances of the government to achieve the ideal checks and balances the system was designed for, and you get what appears to be a deliberate effort on the part of the Executive to usurp the powers of the other brances, and place themselves above the law and the constitutional system they swore to uphold and defend.

That about explain it for you?

Wow, I didn't realize the Telecom act of 1934 was passed as a Constitutional Amendment. You learn something new every day.

Heckler, I suggest that you go and actually READ the Telecommunications act of 1934 and the FISA act. Both of them include clearly defined provisions under which Bush's actions can be justified. Of course you can debate his interpretation of those provisions of the acts, but there's no question that the acts have exceptions which what he has done could easily fall under.

The reason why these issues go nowhere much in the press and even less far in criticism from anyone but the most partisan extremists, is that there just isn't a winnable case to be made against Bush's position on these issues.

I refer you specifically to Section 222/D/2 of the Telecommunications Act of 1934:

(d) EXCEPTIONS.--Nothing in this section prohibits a telecommunications carrier from using, disclosing, or permitting access to customer proprietary network information obtained from its customers, either directly or indirectly through its agents--
(2) to protect the rights or property of the carrier, or to protect
users of those services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, such services.

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that--
(A) the electronic surveillance is solely directed at--
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

Well now Dave, you are being disingenuous here. Notice I specifically stated that what I cited was done under due process of federal law to add to and delineate the Rights in question.

Dave also says; " (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title"

Notice the "exclusively between or among foreign powers" bit that defines said exception. If one end of the call is domestic, that blows the "exclusively" bit out, doesn't it?

And then conjures up that nasty old having to go to a FISA judge up to 72 hours AFTER setting your tap, to get a warrant.

Dave, I have read what I cited, and as I have just demonstrated, I comprehend it as well. Now if you missed the "exclusively between or among foreign powers" there, what else might you have missed?

Also, where are the required assertations by the Attorney General that those exceptions require? They have not been filed with the FISA court as required for those exception.

More cutting corners, more flouting the Law.

As for the rlevance to a "reasonable expectation to privacy" as far as a citizens records show, that is the threshold set at this point in our history by the Courts, add in "probable cause" as set in the 4th Amendment, the right to not incriminate yourself from the 5th, and the indisputable fact that law enforcement is supposed to be accountable to the Court system for warrants and oversight to protect the citizenry from the tactics of a police state that likes to "cut corners".

But what the hell, here I had thought protecting those rights was part of the administrations justification for removing Saddam. Under that rationale, perhpas we shoudl; seek regime change in Washington to protect us from the new secret police before it gets any worse.

What would Thomas Paine do?

Notice the "exclusively between or among foreign powers" bit that defines said exception. If one end of the call is domestic, that blows the "exclusively" bit out, doesn't it?M

No, it doesn't. I cited sectin 1801 with a link, but didn't quote it. Section 1801 specifically defines terrorists and agents of foreign powers within the united states as counting as parties communication 'among foreign powers' under section 1802 which I did quote. So when a terrorist or spy here in the US calls his bosses back home that counts as foreign powers communicating under the act. No ambiguity there at all.

And then conjures up that nasty old having to go to a FISA judge up to 72 hours AFTER setting your tap, to get a warrant.

Dave, I have read what I cited, and as I have just demonstrated, I comprehend it as well. Now if you missed the "exclusively between or among foreign powers" there, what else might you have missed?

And as I demonstrated you don't know what the act's definition of foreign powers is, even though I explained it and provided a link in the article. You're just dead wrong here, sorry.

Also, where are the required assertations by the Attorney General that those exceptions require? They have not been filed with the FISA court as required for those exception.

This is where there's an issue. But the act does provide a term of 1 year for filing - not 15 days as is the case with physical searches only - and it provides no penalties or procedures for dealing with, punishing or even defining as criminal delayed filings.

More cutting corners, more flouting the Law.

More like crappy law easy to manipulate.

As for the rlevance to a "reasonable expectation to privacy" as far as a citizens records show, that is the threshold set at this point in our history by the Courts, add in "probable cause" as set in the 4th Amendment, the right to not incriminate yourself from the 5th, and the indisputable fact that law enforcement is supposed to be accountable to the Court system for warrants and oversight to protect the citizenry from the tactics of a police state that likes to "cut corners".

As I pointed out, the courts have upheld far more obvious violations of the 4th Amendment and been praised for it. Let's worry about those gross violations of the rights of hundreds of thousands of people first, maybe.

What would Thomas Paine do?

He might write:

"There are persons, too, who see not the full extent of the evil
which threatens them; they solace themselves with hopes that the enemy, if he succeed, will be merciful."

Dave

Nice Paine quote, but not what I was thinking, as I know you are aware.

Dave makes this point; "So when a terrorist or spy here in the US calls his bosses back home that counts as foreign powers communicating under the act. No ambiguity there at all."

Well now, there IS a basic ambiguity here, who determines the status of the domestic person under observation for the purposes of tapping? According to the way this Administration has been doing it, all they need to do is CLAIM that the person is a "terrorist".

My entire point here is that there is NO judicial review, the Constitutional point, in the procedures as utilized by this Administration and as justified by Gonzalez when he wrote the opiniopns as WH counsel.

THERE is my problem Dave, as they are practicing it, ANYONE they merely claim is a "terrorist" is subject to all kinds of egregious breaches of their Rights, WITHOUT judicial oversight to determine if there is "probable cause".

No matter how you try and obfuscate or dance around it, that is the crux of the matter. You have an Administration and Attorney General's office that has demonstrated time and again that they believe they can bypass the protections of checks and balances merely on THEIR SAY SO ALONE.

I will gladly grant that the wording of the laws in question could be better, and not give them the wiggle room, but the spirit of said laws is quite clear, and just as clearly being knowingly and willing violated on the pretext of some verbal loopholes.

So, it appears that when dealing with this Administration and the Rights of Citizens, it depends on what the definition of "is" is.

And that is just fucking wrong, and you know it.

Gonzo, what you have is not an administration trying to bypass checks and balances, but one which is trying to do what the public want them to do to fight the war on terror using the tools available to them. When they can do that job more efficiently by taking advantage of loopholes and vague areas in the law they do it. As I've said to you a million times before - and has Bush has stated publicly - if that is a problem, then the congress can pass a new law or ammend the old law to close the loophole and eliminate the ambiguity. They have pointedly opted not to do so. By not taking legislative action they are effectively giving Bush the stamp of approval, so the checks and balances ARE in place, they just aren't working against Bush in this case.

Dave

Dave states; "When they can do that job more efficiently by taking advantage of loopholes and vague areas in the law they do it. "

So again, your position is that bypassing the Law that protects our Rights by utilizing loopholes, or thinly veiled lawyerly excuses is ok by you. I just want to make certain here.

And here is where I take issue, when Dave states' "By not taking legislative action they are effectively giving Bush the stamp of approval, so the checks and balances ARE in place, they just aren't working against Bush in this case."

Your take on it is exactly what one woudl expect form a person whose Party is in power, and feels safe and comfortable with the way shit is going. Think for just a second about how up in arms and pissed you would be if it was a Dem president pulling this shit.

Notice that what you are talking about is a GOP congress and senate not investigating or questioning a GOP president who has not veto'd a single Bill form said bodies.

Again, I say that Reagan's 11th commandment has ruined the GOP, and your own statements here just prove my thesis.

And lastly, thanks so much for your kind consideration and genteel good manners in your choice of names to use for me.

Thanks for confirming my thoughts about just how worthwhile it is to try and discuss facts and issues to search for mutual understanding and edification.

another failed experiment on my part....ah well...

Sorry man, your style just came through so clearly in the last few posts - what with repeating the same arguments you've made before word for word - that I just knew it was you. I won't mention it again. My bad.

So again, your position is that bypassing the Law that protects our Rights by utilizing loopholes, or thinly veiled lawyerly excuses is ok by you. I just want to make certain here.

Actually, I'll go even further than that. By taking advantage of the weaknesses in the laws they are actually protecting our rights, by putting the onus on Congress to look at the issue, figure out how it ought to be dealt with and revise and clarify the laws. Not only do I approve of the executive branch acting in this way, I actively want them to do so.

The executive branch is the part of the government where individual initiative lies. Just like each of us who looks at the tax code - for example- and tries to figure out how to work it to our best advantage, they look at the laws that govern them and try to figure out how to do their job as efficiently as possible while working within the law. Both private citizens and the executive branch have the responsibility of testing and challenging and beating up on the law to see how durable and effective it really is.

Once that's done the legislature should look at the situation, assess the law and how it has been tested, and adjust it as necessary by either getting rid of laws that don't work or writing new ones which do.

Dave

Apology accepted, but it doesn't change the facts.

As for your vision of how you think it should work. I say look at the Oath of Office..."defend and uphold the Constitution..."

Which part of that is it acceptable to violate? None by me.

But you are correct, this is pointless, and I am once again wasting my time.

Lesson learned. c ya

It's not pointless, we're just defining two different views of the role of the executive in our Republic. You believe that defending the constitution is the same as defending the law, while I think that sometimes the role of the executive should be to challenge the law in the defense of the constitution and the best interests of the people.

Dave

"challenge the law" as opposed to "uphold and defend"

That does say it all...

and you are absolutely correct in it "not happening again"

I quote the Oath of Office of the President of the United States:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect, and defend the Constitution of the United States."

Note that it says 'preserve, protect and defend the Constitution'. It doesn't say one word about upholding and defending 'the law'. When the law is the enemy of the people and of the Constitution, then it is the president's job to fight that law in their defense under that oath which you originally referenced.

Dave

is it just me or am i getting deja vu?

dave: "I think that sometimes the role of the executive should be to challenge the law in the defense of the constitution and the best interests of the people."

well, then, why doesn't he challenge it through the proper channels instead of just doing whatever the fuck he pleases and then saying he thinks it's in our best interests? he IS acting like a king, beholden to no law but his own (which is... vague...). if he thinks a law is wrong, he should see if he can get it repealed. it's that simple.

Zing, what are these 'proper channels' you speak of? The way you challenge a law is to flout it, then get taken to court and defend your position there all the way to the SCOTUS if necessary. That's how it works.

As for repealing or modifying the law he has publicly asked Congress to either clarify the law or replace it. What more do you want?

Dave

okay, if he broke the law, charge him. take it to court. if he is found guilty, put him in jail. let all the things that happen to anyone who breaks the law happen to him.

clarify the law? can't he read it himself? did he ask congress before or after he broke the law?

Dave: "Note that it says 'preserve, protect and defend the Constitution'. It doesn't say one word about upholding and defending 'the law'."

The Constitution IS the law of the land, that is what is conveniently forgotten or pushed aside.

Dave: "Actually, I'll go even further than that. By taking advantage of the weaknesses in the laws they are actually protecting our rights."

That's exactly what they want you to believe.

Heckler: "No matter how you try and obfuscate or dance around it, that is the crux of the matter. You have an Administration and Attorney General's office that has demonstrated time and again that they believe they can bypass the protections of checks and balances merely on THEIR SAY SO ALONE."

zingzing: "he IS acting like a king, beholden to no law but his own (which is... vague...). if he thinks a law is wrong, he should see if he can get it repealed. it's that simple."

Bingo.

I'll go with the Bingo too. Zing is right. He is like a king. He is SUPPOSED to be like a King. The concept of a monarch is the distillation of executive power. The difference in our system is that we have checks and balances on that executive power. The president is supposed to try to exercise executive power and then when he goes to far the courts and congress and even the press are there to reign him in and set the limits. It's a dynamic system that sets these forces in competition with and against each other.

The Constitution IS the law of the land, that is what is conveniently forgotten or pushed aside.

The constitution is the supreme law of the land FISA and the Telecommunications act are lesser laws which have not been fully constitutionally tested. They do NOT have the same weight or inviolability, nor are they specified in the presidential oath as Heck suggested.

Dave

okay, if he broke the law, charge him. take it to court. if he is found guilty, put him in jail. let all the things that happen to anyone who breaks the law happen to him.

Absolutely. But also rewrite the law, especially if he gets off - as he certainly would.

clarify the law? can't he read it himself? did he ask congress before or after he broke the law?

Not only can he read it himself he had an army of lawyers read it and they found it to be either ambiguous or to allow his actions. The Senators and Congressmen he consulted also agreed, as have some judges. In that situation, if you don't like what he did, you need to make the law clear and definitive in saying that it can't be done. Which it certainly is not now. Read the parts I quoted. They certainly give him license to do as he has, no matter how much we don't like it.

Dave

"Zing is right. He is like a king. He is SUPPOSED to be like a King. The concept of a monarch is the distillation of executive power."

Somebody must be spoofing us with Daves sig.

SUPPOSED!? What a strange idea. Then, compounded with "...a monarch is the distillation of executive power..." as if monarchy historically followed the idea of a US president.

Are we then to believe that the innovation in the US constitution is that the king is simply elected (or appointed by the Electoral College) as opposed to the traditional hereditary king?

How interesting. Even piquant.

It cracks me up that so many on the left only recently discovered the electoral college. Please see Article 2, US Consitution. Here are some of the quotes from the Consitutional Convention:



"A popular election in this case is radically vicious. The ignorance of the people would put it in the power of some one set of men dispersed through the Union, and acting in concert, to delude them into any appointment." -- Delegate Gerry, July 25, 1787

"The extent of the country renders it impossible, that the people can have the requisite capacity to judge of the respective pretensions of the candidates." -- Delegate Mason, July 17, 1787

"The people are uninformed, and would be misled by a few designing men." -- Delegate Gerry, July 19, 1787.


Amazing to me how far seeing these men were.

-M- (the Token)

Bliffle - I'm going to assume that you understand that #22 concerns constitutional power dynamics and proposes a structural requirement for executive overreach and that #24 is just semantic distraction

if you don't approve of Bush's usurpations then hire a congressman who will stop him

either that or consider a juicy seditious conspiracy

troll

Troll, just bitching a lot is probably as good as anything else those who oppose Bush can do. But if they're going to bitch they ought to do it in an informed way. Constantly going on about how Bush is breaking laws and ought to be impeached just makes them sound ignorant and diminishes the chance of their concerns being taken seriously.

Dave

I really don't think it's an issue of Bush...any Prez would be chomping at the bit under the circumstances

troll

Very true, Troll. It's in the nature of the job to want to make decisions and exercise direct authority. We have a president so that we have someone who can respond quickly in a crisis without having to debate and pass a new law to do it. Any responsible president is going to want to fill that role - as Bush says, being the 'decider'. And he's not wrong to look at it that way.

Dave

How strange. Apparently, the pres doesn't have to obey any law not tested for constitutionality by the supremes. Is that the contention? Does it apply to me, too? Can I disobey any law whose constitutionality has not been tested? Like the latest tax laws?

My belief has been that congress passes laws, the executive enforces them (that's why they're called the executive branch, because they execute the laws, so they would be remiss if they didn't), and the supremes settle issues of constitutionality of those laws.

Now, under this new thinking, all 3 branches contend for power, each one seeking to outdo the other. But doesn't this legitimize 'legislating from the bench' which we've always excoriated (as good conservatives rather than nasty liberals)?

My belief has always been that the "decider" is the legislative branch, presumably acting under orders from the electorate.

Blliff, on a purely philosophical basis you're entirely justified in disobeying laws which you consider unconstitutional or which for that matter you consider contrary to natural law. If you do so, you're a hero in my book and absolutely ethically justified. Rousseau and Montesquieu and Bastiat woudl all agree.

The catch is that when you follow that pure ethical course you may face the wrath of a state which doesn't share your purist application of natural law and wants to impose more arcane and expedient laws on you. You can test those laws in a court and may end up winning, but you run the risk of being an oppressed martyr. But I'd be proud of you for it.

Now, under this new thinking, all 3 branches contend for power, each one seeking to outdo the other.

This isn't 'new thinking', it's the thinking of the founding fathers.

But doesn't this legitimize 'legislating from the bench'

I may not be a good conservative, but I don't see interpreting the law as legislating from the bench.

My belief has always been that the "decider" is the legislative branch, presumably acting under orders from the electorate.

Mmm no. The legislative branch is the planner and approver. The president remains the most 'action' oriented part of the government. The budget, the appointments and the policies generally originate with the president and then get formalized and approved by the legislature.

Dave

This is going to sound like a very childish way of looking at this I am sure, but do you not think that the only people who have a problem with our leader trying to take care of us, is the people that have something to hide??!! NOW, before I get attacked for saying just think about it for a min and let it sink in, does that make it any clearer??

Sorry, Shelly. Even I don't buy that one.

Dave

I've thought about it and your right, Shelly, it does sound very childish.

The right is constantly going on about how bad and inept government is but then blindly trust everything they say and do when they are told it is to protect them.

"Note that it says 'preserve, protect and defend the Constitution'. It doesn't say one word about upholding and defending 'the law'."

So the right dismisses the idea of upholding and defending 'the law' when it's Bush and make it the central issue when Clinton breaks the law. Can you guys ever be consistent on an issue?

"As for repealing or modifying the law he has publicly asked Congress to either clarify the law or replace it."

Sure, after he broke it. He could have asked for the law to be changed and illustrated why beforehand. He knew he wasn't completely in the clear, but thought he could get away with it. A true leader would have alleviated any ambiguity by going to Congress or the people.

Sure, after he broke it. He could have asked for the law to be changed and illustrated why beforehand. He knew he wasn't completely in the clear, but thought he could get away with it. A true leader would have alleviated any ambiguity by going to Congress or the people.

Ah, yes; leading by example with honor and integrity, rather than majestic autocratic rule. Now there's a refreshing idea.

You're right on, Roger, and your analysis conjures up pictures of slithering asps.

"Now, under this new thinking, all 3 branches contend for power, each one seeking to outdo the other.

This isn't 'new thinking', it's the thinking of the founding fathers."

How so? Where do you find this? Or is this your interpretation?

If I break the law I can expect to be arrested soon. Who arrests an errant president?

It's in the nature of the job to want to make decisions and exercise direct authority. We have a president so that we have someone who can respond quickly in a crisis without having to debate and pass a new law to do it. Any responsible president is going to want to fill that role - as Bush says, being the 'decider'. And he's not wrong to look at it that way.

The Constitution does designate the President as "Commander in Chief" but not of the country as a whole, with the powers of some Fuhrer but only as "Commander in Chief of the Army and Navy of the United States, and of the Militia when called into the actual Service of the United States." The President may exercise limited authority dependent upon mandates from Congress, not some limitless "inherent" power.

It also makes him the 'executive', who has decision making ability.

And Bliffle, I find it in the Constitution and in the writings of the founding fathers and how they interpreted and intended the constitution.

Dave