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  1.    #141  
    Phurth & Cardio, dat's response is what this whole thread is about. It's evident Bush is doing the right thing. It is also obvious other President's have done the same.

    This is simply political.
  2. #142  
    Quote Originally Posted by t2gungho
    I am not personally interested in criminalizing any President for something like this...but ever since the Steel Seizure case (YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952), Presidents have been trying to expand their power. And all the while, Congress continues to acquiesce more and more of it's power to the Executive branch.
    There may be plenty of instances of the Executive overreaching into Legislative areas. This is not one of them. In fact the opposite is true. The Executive is the only brach Constitutionally empowered to conduct war (once authorized, which this Congress has done twice).

    Meddling in the gathering of enemy intelligence is a clear violation of the separation of powers which all administrations since the passing of FISA in 1978 have asserted.

    Bush is claiming no more power than previous presidents. We are in fact at war - the conclusion I must logically draw is that the critisism of this program is at best misguided and at worst pure partisan attacks that damage our ability to wage this war.
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    #143  
    Quote Originally Posted by daThomas
    So two+ wrongs make a right?
    NO, 2 wrongs do not make a right. However, as stated numerous times, this is not something this administation came up with, it has been done in the recent past with no uproar. Why the sudden uproar? If it is purely political than some need to find a new hobby, if it is to move toward changing the existing laws, enabling appropriate investigations while maintaining rights then that is fine. The way the MSM is handeling this is as if it is something new and horrendous.
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  4. #144  
    Am I missing something? Does this Clinton law not state that the FISA courts will be included?

    Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.
  5. #145  
    Quote Originally Posted by daThomas
    Am I missing something?
    ABSOLUTELY!!
    but thats a whole nuther thread possibly a new forum
  6. #146  
    The important question daThomas is...

    Nose ring, glare, or mocos?? It's driving me crazy trying to figure it out.
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    #147  
    Quote Originally Posted by daThomas
    Am I missing something? Does this Clinton law not state that the FISA courts will be included?

    Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.
    Maybe this part

    Section 1. Pursuant to section 302(a)(1) of the Act, the
    Attorney General is authorized to approve physical searches, without a
    court order
    , to acquire foreign intelligence information for periods of
    up to one year, if the Attorney General makes the certifications
    required by that section.
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  8. #148  
    Quote Originally Posted by cardio
    Maybe this part

    Section 1. Pursuant to section 302(a)(1) of the Act, the
    Attorney General is authorized to approve physical searches, without a
    court order
    , to acquire foreign intelligence information for periods of
    up to one year, if the Attorney General makes the certifications
    required by that section.

    Hello!?:
    "if the Attorney General makes the certifications
    required by that section"
  9. #149  
    Quote Originally Posted by Insertion
    The important question daThomas is...

    Nose ring, glare, or mocos?? It's driving me crazy trying to figure it out.
    Maybe we should have a poll.
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    #150  
    Quote Originally Posted by daThomas
    Hello!?:
    "if the Attorney General makes the certifications
    required by that section"
    OK, here

    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."

    http://www.chicagotribune.com/news/o...commentary-hed
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    #151  
    Quote Originally Posted by daThomas
    Maybe we should have a poll.
    I vote Booger
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  12. #152  
    Quote Originally Posted by cardio
    OK, here

    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."

    http://www.chicagotribune.com/news/o...commentary-hed
    Since you're quoting this Opinion it appears to me not to exclude going through FISA and also only pertains to a specific case.
  13. #153  
    Quote Originally Posted by cardio
    I vote Booger
    That's a mighty shiny one!
  14. #154  
    Quote Originally Posted by phurth
    There may be plenty of instances of the Executive overreaching into Legislative areas. This is not one of them. In fact the opposite is true. The Executive is the only brach Constitutionally empowered to conduct war (once authorized, which this Congress has done twice).
    With the advisement and consent of the Congress . That entails keeping the Congress abreast of what is going on. Additionally, Article 1, Section 8 gives the Congress a lot more enumerated war powers (remember that the President can't conduct a war without money, hence the President has to keep going back to Congress for more authorization):

    -To constitute Tribunals inferior to the supreme Court;
    -To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
    -To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
    -To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
    -To provide and maintain a Navy;
    -To make Rules for the Government and Regulation of the land and naval Forces;
    -To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
    -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;
    Quote Originally Posted by phurth
    Meddling in the gathering of enemy intelligence is a clear violation of the separation of powers which all administrations since the passing of FISA in 1978 have asserted.
    How is it a clear violation (simply because administrations have asserted it as such?) Congress can't 'advise and consent' without being briefed with proper intelligence. And even if your assertion is true, the President still has to act in accordance with the due process doctrine within the constitution.

    Quote Originally Posted by phurth
    Bush is claiming no more power than previous presidents.
    Again, the argument that we have done it in the past really isn't a strong one. And I am acknowledging that this is not a partisan issue (because as you say, all Presidents have done this). Rather, I am arguing that we should move toward limiting this type of expansion of power.

    Quote Originally Posted by phurth
    We are in fact at war - the conclusion I must logically draw is that the critisism of this program is at best misguided and at worst pure partisan attacks that damage our ability to wage this war.
    I don't understand why it's misguided (at a minimum according to you) to argue that the executive branch of the government has to follow due process guidelines under the constitution.
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    #155  
    Quote Originally Posted by daThomas
    Since you're quoting this Opinion it appears to me not to exclude going through FISA and also only pertains to a specific case.
    You are missing the precedent that has been set.

    "FISA could not encroach on the president's constitutional power."

    Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

    We may not like it, but right now it appears to be the law of the land.
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  16. #156  
    Quote Originally Posted by t2gungho
    With the advisement and consent of the Congress . That entails keeping the Congress abreast of what is going on. Additionally, Article 1, Section 8 gives the Congress a lot more enumerated war powers (remember that the President can't conduct a war without money, hence the President has to keep going back to Congress for more authorization):


    How is it a clear violation (simply because administrations have asserted it as such?) Congress can't 'advise and consent' without being briefed with proper intelligence. And even if your assertion is true, the President still has to act in accordance with the due process doctrine within the constitution.
    The President is under no more constitutional obligation to gain the consent of the Congress for decisions made during the conduct of a war than the Congress is obliged to gain the President's consent during the crafting of legislation. Obviously the Congress holds the purse-strings and thus has the power to coerce cooperation from the Executive. The President has the veto and thus the power to coerce legislative action. These are the checks and balances built into our system. The simple fact that is that the President doesn't need the Congress' say-so to make executive decisions - particularly during the course of waging a war. If a majority in the Congress disagrees strongly enough with the Executive they do have the option of de-funding available to them.

    Due process is meaningless outside the context of a criminal case.
    Again, the argument that we have done it in the past really isn't a strong one. And I am acknowledging that this is not a partisan issue (because as you say, all Presidents have done this). Rather, I am arguing that we should move toward limiting this type of expansion of power.
    It is important to note that this has been the understanding of executive power throughout our history as a nation because there are those who are claiming this is a new thing and an abuse of power by the current President. Whether it an excess of power in one branch or not is a debatable issue, but it is a separate debate from whether Bush "broke the law" in ordering this perfectly reasonable surveillance.
    I don't understand why it's misguided (at a minimum according to you) to argue that the executive branch of the government has to follow due process guidelines under the constitution.
    Due process only has a constitutional meaning in the context of criminal proceedings. As I was careful to state in an earlier post, the Bush administration is seeking to prevent attacks, not arrest and try suspects. This is a military/intelligence operation, not a law enforcement operation.
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  17. #157  
    Quote Originally Posted by cardio
    We may not like it, but right now it appears to be the law of the land.
    Looks like that's about to end, thank goodness.
  18. #158  
    Quote Originally Posted by phurth
    The President is under no more constitutional obligation to gain the consent of the Congress for decisions made during the conduct of a war than the Congress is obliged to gain the President's consent during the crafting of legislation. Obviously the Congress holds the purse-strings and thus has the power to coerce cooperation from the Executive. The President has the veto and thus the power to coerce legislative action. These are the checks and balances built into our system. The simple fact that is that the President doesn't need the Congress' say-so to make executive decisions - particularly during the course of waging a war. If a majority in the Congress disagrees strongly enough with the Executive they do have the option of de-funding available to them.
    I guess we will have to agree to disagree. There are things (even during wartime) that the President cannot do (i.e. violate your constitutional rights which includes due process).

    Quote Originally Posted by phurth
    Due process is meaningless outside the context of a criminal case.
    Why do you say this? Due process is relevant in many instances outside a criminal case For instance, in legislative manners, the state cannot deny you benefits without giving you a hearing and then an opportunity to appeal in writing. The idea of giving you notice and a hearing is a due process argument (which has nothing to do with a 'criminal case'.) Im sure you can think of other things where before a 'body' can make a decision, they have to follow a procedure. This is how we prevent people from being treated differently (i.e. everyone goes through the same process.)

    That being said, the argument that attorney's would make for U.S. citizens who have had their constitutional rights violated would be that there has to be due process prior to the government violating of a right. (i.e. before you can listen in on a conversation that I make from the U.S. to my relatives in country X, the constitution (and case law) requires you to get a warrant. If you arbitrarily decide that you don't need a warrant to violate my right, then you haven't followed due process - getting the warrant.)

    Quote Originally Posted by phurth
    It is important to note that this has been the understanding of executive power throughout our history as a nation because there are those who are claiming this is a new thing and an abuse of power by the current President. Whether it an excess of power in one branch or not is a debatable issue, but it is a separate debate from whether Bush "broke the law" in ordering this perfectly reasonable surveillance.
    I have already stated that Pres. Bush is not the first person to expand his authority during a time of war. Have we clarified yet whether Pres. Bush authorized surveillance without warrants on calls made from within the U.S.? Because if that has taken place, then a discussion concerning whether someone broke the law seems very appropriate.

    Quote Originally Posted by phurth
    Due process only has a constitutional meaning in the context of criminal proceedings. As I was careful to state in an earlier post, the Bush administration is seeking to prevent attacks, not arrest and try suspects. This is a military/intelligence operation, not a law enforcement operation.
    Do you think that the 'seeking to prevent attacks' will not lead to arrests of suspects? While the main mission is to prevent attacks, it seems absurd to think that we wont criminally prosecute those individuals when the appropriate time comes. (Hence this is very much a criminal context).
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  19. #159  
    I just remembered reading once you're a law student, so I may be completely out of my depth, but here goes...

    Quote Originally Posted by t2gungho
    I guess we will have to agree to disagree. There are things (even during wartime) that the President cannot do (i.e. violate your constitutional rights which includes due process).
    Surely you're not arguing that all constitutional rights are absolute and should be universally respected in all places under any circumstance... What about Lincoln during the Civil War?
    Why do you say this? Due process is relevant in many instances outside a criminal case For instance, in legislative manners, the state cannot deny you benefits without giving you a hearing and then an opportunity to appeal in writing. The idea of giving you notice and a hearing is a due process argument (which has nothing to do with a 'criminal case'.) Im sure you can think of other things where before a 'body' can make a decision, they have to follow a procedure. This is how we prevent people from being treated differently (i.e. everyone goes through the same process.) That being said, the argument that attorney's would make for U.S. citizens who have had their constitutional rights violated would be that there has to be due process prior to the government violating of a right. (i.e. before you can listen in on a conversation that I make from the U.S. to my relatives in country X, the constitution (and case law) requires you to get a warrant. If you arbitrarily decide that you don't need a warrant to violate my right, then you haven't followed due process - getting the warrant.)
    You bring up an issue which is not due process in the legal sense that we are discussing here (as I understand it). The procedural "due process" in the administration of benefits is (as you yourself make the connection) really an equal protection argument, not due process in the sense of guaranteeing 4th amendment rights. I fully accept that any evidence gathered by the surveillance at issue here would never stand up in a US court. As I think I've made clear, I don't think that prosecution of suspects is the goal in this case.
    I have already stated that Pres. Bush is not the first person to expand his authority during a time of war. Have we clarified yet whether Pres. Bush authorized surveillance without warrants on calls made from within the U.S.? Because if that has taken place, then a discussion concerning whether someone broke the law seems very appropriate.
    I think no "expansion" has taken place beyond what has always been accepted as proper and justified. That has been my point. German saboteurs (including at least one US citizen!) captured in the US during World War II were tried in military, not civilian courts. They therefore did not receive the same "due process" rights as normal US citizens. It was understood that Roosevelt's executive branch had the proper duty to prosecute the war (even on US soil) with a relatively free hand.

    I don't think anyone outside the goverment knows the details yet. Disclosure of this information would clearly compromise the intelligence gathering operation even further than it has thus far.
    Do you think that the 'seeking to prevent attacks' will not lead to arrests of suspects? While the main mission is to prevent attacks, it seems absurd to think that we wont criminally prosecute those individuals when the appropriate time comes. (Hence this is very much a criminal context).
    I disagree completely. This is seen properly as a military and foreign intelligence operation, not a US law enforcement operation... however:

    The war we are now involved in is unlike any we have ever had to fight. To a large extent we have to meld our military and civil justice systems to this new reality. This is not to say we need to give up our rights or even accept substantial reductions in them. What I mean is that our old ways of doing things may not be appropriate: i.e. our peacetime procedures for dealing with criminals might not be appropriate for dealing with suicide bombers. Our "normal" means of dealing with enemy combatants (shoot first ask questions later, unfettered surveillance whether domestic or foreign, etc...) may not be appropriate for dealing with suspects who might not be enemy combatants. We need to come up with new ways of doing things.

    Unfortunately our highly charged partisan atmosphere with charges of treason and criminal violation of constitutional rights flying back and forth makes that a very difficult task.
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  20. #160  
    Quote Originally Posted by phurth
    Surely you're not arguing that all constitutional rights are absolute and should be universally respected in all places under any circumstance... What about Lincoln during the Civil War?
    No I am not saying that (there are no absolute rights). Look at the Korematsu (Japanese Internment Camps) case. It was only during the 1980's that Pres. Reagan pardoned him and appologized on behalf of the nation for what we did.

    It's funny that you bring up the Habeaus Corpus issue with Pres. Lincoln. Remember that he retroactively went before Congress after the fact because he recognized he went beyond his executive power under the constitution (regardless of how 'good' or 'important' it was for the nation.)
    Quote Originally Posted by phurth
    You bring up an issue which is not due process in the legal sense that we are discussing here (as I understand it). The procedural "due process" in the administration of benefits is (as you yourself make the connection) really an equal protection argument, not due process in the sense of guaranteeing 4th amendment rights.
    Arguably, the equal protection argument and the due process argument go hand-in-hand in a majority of challenges in constitutional issues. You would make the argument that by not providing due process (i.e. getting a warrant first) you are not giving me equal protection under the law as required under the constitution.
    Quote Originally Posted by phurth
    I fully accept that any evidence gathered by the surveillance at issue here would never stand up in a US court.
    To me, the important issue is not whether the evidence could ever be used (it is important) but rather should the federal government over-step its constitutionally granted authority.
    Quote Originally Posted by phurth
    As I think I've made clear, I don't think that prosecution of suspects is the goal in this case. I think no "expansion" has taken place beyond what has always been accepted as proper and justified. That has been my point.
    Fair enough, but you do agree that people 'caught' in this terrorism-surveillance operation will be criminally prosecuted (especially if they are U.S. citizens). And you do see my side of the argument on how a U.S. citizen who makes a call to country X and it is surveillanced by the NSA without a warrant would arguably be unconstitutional.
    Quote Originally Posted by phurth
    German saboteurs (including at least one US citizen!) captured in the US during World War II were tried in military, not civilian courts. They therefore did not receive the same "due process" rights as normal US citizens. It was understood that Roosevelt's executive branch had the proper duty to prosecute the war (even on US soil) with a relatively free hand.
    This is the case you are referring to: Ex Parte Quirin. Link
    Franklin D. Roosevelt directed his attorney general to court-martial the captured Germans - rather than trying them criminally in a federal district court. He did so even despite the fact that, at the time, the Geneva Conventions placed limits on the treatment of captured combatants, as they continue to do today. The Germans were court-martialled; their appeals were denied; and they were duly executed.
    They appear to have had due process...they were allowed to appeal the decision of Pres. Roosevelt and they lost. Plus you can't compare German citizens with U.S. citizens because the German's were classified as enemy combatants and aren't afforded the same protections as you and I would have.

    Roosevelt was given a lot of discretion by the courts but Con law classes have long debated whether it was constitutional.
    Quote Originally Posted by phurth
    I don't think anyone outside the goverment knows the details yet. Disclosure of this information would clearly compromise the intelligence gathering operation even further than it has thus far.
    I agree but protecting the rights granted under the constitution should be as important...otherwise, what are we fighting for? If we really want to be utilitarian about this...why aren't we advocating for martial law
    Quote Originally Posted by phurth
    I disagree completely. This is seen properly as a military and foreign intelligence operation, not a US law enforcement operation.
    Not when the surveillance is targeted to U.S. citizens domestically?
    Quote Originally Posted by phurth
    .. however:

    The war we are now involved in is unlike any we have ever had to fight. To a large extent we have to meld our military and civil justice systems to this new reality.
    Mixing our military and judicial systems and applying that domestically against U.S. citizens is going to be problematic 'constitutionally'.
    Quote Originally Posted by phurth
    This is not to say we need to give up our rights or even accept substantial reductions in them. What I mean is that our old ways of doing things may not be appropriate: i.e. our peacetime procedures for dealing with criminals might not be appropriate for dealing with suicide bombers. Our "normal" means of dealing with enemy combatants (shoot first ask questions later, unfettered surveillance whether domestic or foreign, etc...) may not be appropriate for dealing with suspects who might not be enemy combatants. We need to come up with new ways of doing things.

    Unfortunately our highly charged partisan atmosphere with charges of treason and criminal violation of constitutional rights flying back and forth makes that a very difficult task.
    Indeed it does but there is value in healthy, open debate.
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