come on "constructionists"

[j2k4]

This is surely an enormous scandal.

Actually, no.

If it were, Bush would have already been keel-hauled.

The fact he hasn't should tell you all you need to know.

That there are several apparently weak-kneed Republicans out there would seem to indicate they know something we don't, except if that were the case, the Dems would have already made sure that information was published, ergo...

Intestinal fortitude goes begging for want of re-election.

[JPaul]

So let me get this right. The US Government has been using illegal wiretaps, without warrants, contrary to the US constitution.

This has been reported in the press and the citizens of the USA and it's legal authorities have basically said, "Whatcha gonna do".

Unless I've picked you chaps up wrong I find that astonishing.

[j2k4]

So let me get this right. The US Government has been using illegal wiretaps, without warrants, contrary to the US constitution.

This has been reported in the press and the citizens of the USA and it's legal authorities have basically said, "Whatcha gonna do".

Unless I've picked you chaps up wrong I find that astonishing.

You'd have to cast a discriminating eye on just which media outlets are reporting the story which way, JP.

Journalists who practice in the mainstream media over here garner (many polls have shown, and the opinions of the liberal contingent of this forum aside) about half the level of respect given used-car salesmen.

The staff at the Beeb, bad as they are, absolutely tower over their American "Big Three" counterparts, and those who toil for the major print outlets aren't fit to work at my local paper.

Again, that's not just my opinion.

[JPaul]

So has there been any official response to the stories, or have they just decided on the age old principal, "todays news, tomorrow's fish and chip wrapper".

[JPaul]

from the January 05, 2006 edition of Christian Science Monitor I have no idea of the quality of said source

Congress is partly to blame for Bush's warrantless wiretaps

By Pat M. Holt

WASHINGTON – Congress is in an uproar over the Bush administration's use of warrantless wiretaps in the United States against American citizens. And well it might be. But to find the culprit, Congress has only to look in a mirror. The sad truth is that Congress does not want to exercise effective oversight of intelligence activities.

President Bush, for his part, says Congress implicitly authorized eavesdropping and other searches without a warrant when it authorized the president to respond to 9/11. The president has also asserted his inherent power under the Constitution to wiretap without congressional authorization, either implied or explicit. Attorney General Alberto Gonzales has admitted that the administration backed off seeking congressional authority because of advice from Capitol Hill that it would be too difficult to pass. So, if you don't think you can get it, say you don't need it.

Mr. Bush is not the first president to claim an inherent power in matters of national security. The last one before Bush was his immediate predecessor, Bill Clinton, who claimed it in connection with the sale of secrets by CIA employee Aldrich Ames. The issue is not political; it is institutional.

There is a further institutional issue between the executive and legislative branches: conflicting views of what is involved in consultation between them. Traditionally, the executive branch has thought it has consulted Congress when in fact it has done no more than inform Congress. Congress, on the other hand, does not think it has been consulted unless there has been discussion as to what to do about a given problem.

The president and the attorney general have repeatedly made the point that Congress has been briefed on warrantless wiretapping a dozen times. The briefings consisted of assembling eight members of Congress out of 535: the chairmen and ranking minority members of the House and Senate intelligence committees, the speaker of the House, the House minority leader, and the majority and minority leaders of the Senate. This select group was brought to the White House, sworn to secrecy even with respect to their peers on Capitol Hill, and told - not asked - about what the administration was doing. We still don't know if they were told everything.

Some of them were troubled. So far as we know, only Sen. Jay Rockefeller (D) of West Virginia was troubled enough to do anything about it. What Senator Rockefeller did was to send a handwritten letter (if his secretary had typed it, she would have learned what he had sworn not to tell her) to Vice President Dick Cheney saying he was "concerned."

Given the circumstances, was there something else Rockefeller or others in the select group could have done? For one thing, they could have refused to accept the information on the strict terms under which it was offered. They could have gone to the president himself. If they were still dissatisfied, they could have demanded a secret session of the Senate and/or House and laid the problem before their colleagues. This has been done in the past, and such sessions have been remarkably leak-free.

The basic problem here is a fundamental disagreement over the constitutional powers of the president and Congress. Suppose Congress tells the president that it's OK to wiretap foreigners but not Americans without a warrant "particularly describing," as the Fourth Amendment puts it, "the place to be searched, and the persons or things to be seized." And suppose the president then does it anyway. This leaves the country in a major constitutional crisis.

It has happened twice before in the past 40 years. In the first instance, the Supreme Court struck down President Nixon's assertion of authority to withhold documents relating to Watergate, and Nixon resigned rather than face an impeachment trial in the Senate. In the second instance, which is more pertinent to the present case, Congress prohibited aid to the Nicaraguan contras and the Reagan White House supplied it anyway.

[j2k4]

So has there been any official response to the stories, or have they just decided on the age old principal, "todays news, tomorrow's fish and chip wrapper".

I believe the administration is cognizant of the dynamic at work (each of the political "sides" hunkered down with their beliefs), and keeps the media at arm's-length until whatever happens, happens.

The most important impending event at this point is Justice's investigation of what the administration now alleges is a "leak".

Time has been purchased thus for both sides, with most benefit accruing (obviously) to the winner of this first round.

Other events (the Alito confirmation hearings, etc.) will serve to lengthen the process.

All the while, the issue of media bias is getting some long-overdue play as well.

An interesting time to be alive...

[vidcc]

Kev. There are many right wing hard conservatives questioning this. To make it out as a partisan issue is misleading and isn't addressing the legality.


I shall repeat the 4th.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.



Now the constitution being the ultimate rule of law in the land I am at a loss how ANY law that contradicts this is constitutional as it doesn't give exceptions. There are of course "emergency" provisions the president has but these are temporary powers and 4 years is enough time for "checks and balances"


Now if there is a law that has yet to be challenged that allows this then I would like to hear about it. And then I would like to get an opinion from a "constructionist" as to if that law is constitutional and if so why. That is the whole point of my original.
Just saying the president is doing it to "protect us" isn't a legal arguement.

I am not looking to make points if one admits it is unconstituional "but so what on this one". However I would like to know why that person isn't bothered when the whole thing could have been done under FISA .

[JPaul]

The most important impending event at this point is Justice's investigation of what the administration now alleges is a "leak".

That quite nicely sidesteps the issue. The leak itself becomes more of an issue than what was leaked, nice strategy that.

I found this interesting

Warrantless ''National Security'' Electronic Surveillance .--In Katz v. United States, 151 Justice White sought to preserve for a future case the possibility that in ''national security cases'' electronic surveillance upon the authorization of the President or the Attorney General could be permissible without prior judicial approval. The Executive Branch then asserted the power to wiretap and to ''bug'' in two types of national security situations, against domestic subversion and against foreign intelligence operations, first basing its authority on a theory of ''inherent'' presidential power and then in the Supreme Court withdrawing to the argument that such surveillance was a ''reasonable'' search and seizure and therefore valid under the Fourth Amendment. Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required. 152 Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government's duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy. 153 This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth. 154 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required. 155

The question of the scope of the President's constitutional powers, if any, remains judicially unsettled. 156 Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ''United States person'' will be overheard. 157

from http://caselaw.lp.findlaw.com/data/c...nt04/05.html#6

[j2k4]

from the January 05, 2006 edition of Christian Science Monitor I have no idea of the quality of said source

Congress is partly to blame for Bush's warrantless wiretaps

By Pat M. Holt

WASHINGTON – Congress is in an uproar over the Bush administration's use of warrantless wiretaps in the United States against American citizens. And well it might be. But to find the culprit, Congress has only to look in a mirror. The sad truth is that Congress does not want to exercise effective oversight of intelligence activities.

President Bush, for his part, says Congress implicitly authorized eavesdropping and other searches without a warrant when it authorized the president to respond to 9/11. The president has also asserted his inherent power under the Constitution to wiretap without congressional authorization, either implied or explicit. Attorney General Alberto Gonzales has admitted that the administration backed off seeking congressional authority because of advice from Capitol Hill that it would be too difficult to pass. So, if you don't think you can get it, say you don't need it.

Mr. Bush is not the first president to claim an inherent power in matters of national security. The last one before Bush was his immediate predecessor, Bill Clinton, who claimed it in connection with the sale of secrets by CIA employee Aldrich Ames. The issue is not political; it is institutional.

There is a further institutional issue between the executive and legislative branches: conflicting views of what is involved in consultation between them. Traditionally, the executive branch has thought it has consulted Congress when in fact it has done no more than inform Congress. Congress, on the other hand, does not think it has been consulted unless there has been discussion as to what to do about a given problem.

The president and the attorney general have repeatedly made the point that Congress has been briefed on warrantless wiretapping a dozen times. The briefings consisted of assembling eight members of Congress out of 535: the chairmen and ranking minority members of the House and Senate intelligence committees, the speaker of the House, the House minority leader, and the majority and minority leaders of the Senate. This select group was brought to the White House, sworn to secrecy even with respect to their peers on Capitol Hill, and told - not asked - about what the administration was doing. We still don't know if they were told everything.

Some of them were troubled. So far as we know, only Sen. Jay Rockefeller (D) of West Virginia was troubled enough to do anything about it. What Senator Rockefeller did was to send a handwritten letter (if his secretary had typed it, she would have learned what he had sworn not to tell her) to Vice President Dick Cheney saying he was "concerned."

Given the circumstances, was there something else Rockefeller or others in the select group could have done? For one thing, they could have refused to accept the information on the strict terms under which it was offered. They could have gone to the president himself. If they were still dissatisfied, they could have demanded a secret session of the Senate and/or House and laid the problem before their colleagues. This has been done in the past, and such sessions have been remarkably leak-free.

The basic problem here is a fundamental disagreement over the constitutional powers of the president and Congress. Suppose Congress tells the president that it's OK to wiretap foreigners but not Americans without a warrant "particularly describing," as the Fourth Amendment puts it, "the place to be searched, and the persons or things to be seized." And suppose the president then does it anyway. This leaves the country in a major constitutional crisis.

It has happened twice before in the past 40 years. In the first instance, the Supreme Court struck down President Nixon's assertion of authority to withhold documents relating to Watergate, and Nixon resigned rather than face an impeachment trial in the Senate. In the second instance, which is more pertinent to the present case, Congress prohibited aid to the Nicaraguan contras and the Reagan White House supplied it anyway.

There is a good bit of truth to the facts laid out here.

The Dems are making a lot of noise, but not the kind that will put the spotlight on their own culpability, which stems from their view that it is politically expedient to "allow" Bush to do things they see as happily detrimental to his own party.

This view, while not shared by any Republicans, colors them nonetheless as they grow faint at the prospect of openly supporting Bush's actions, especially when considering it's effect on their re-election efforts.

Congress as a whole seeks to cover it's collective ass when the electorate shows signs of interest in such matters.

[JPaul]

It's like the argument, we all "know" it goes on, but we don't really know it goes on. So we have plausible deniability when it becomes public knowledge.