Judge: Bush Wrong on Wiretaps
The New York Times reports:
A federal judge in California said Wednesday that the wiretapping law established by Congress was the “exclusive” means for the president to eavesdrop on Americans, and he rejected the government’s claim that the president’s constitutional authority as commander in chief trumped that law.
I haven’t read the opinion, but I think I agree.
What follows is mostly legal gobbledygook. Read on if you’re into that sort of thing.
I have become convinced — and in fact became convinced quite some time ago — that FISA is indeed the exclusive means for wiretapping, at least as far as the statutory interpretation aspect goes. (I have never researched the “inherent authority” arguments thoroughly enough to have a confident opinion about them, but I suspect that argument is not a winner. Justice Jackson’s Youngstown concurrence seems to be treated nowadays as good law, and if Congress has clearly spoken, the president would have a hard time getting around it.)
This represents a change in my thinking. I used to think the AUMF provided a plausible exception to FISA. I summarized my argument here:
The result, in my view, turns largely on whether the AUMF set forth an exception to the exclusivity provision of FISA, due to the fact that surveillance is necessarily incidental to the use of force (and thus distinguishable from the particular form of military commissions at issue in the Hamdan case). (In my view, the resolution of this issue resolves the “inherent authority” argument as well, because it tells us which of the Youngstown categories governs the analysis of the President’s actions. John Hinderaker would probably kill me for accepting those categories as the law, but I believe that the current court will treat it as such.)
But then commenter Crust argued:
I’ve always found the AUMF argument unsatisfying, since FISA explicitly provides even for a formal declaration of war. Basically, in wartime the same rules apply with some modification (a longer period for retroactive warrants).
When I read that, I found myself convinced. If FISA says it still applies even after a formal declaration of war, how can you argue that the AUMF provided an implicit exception to FISA?
I’m open to arguments to the contrary, but that’s how it seems to me.
There are none.
Why don’t you take the next step and say that by implementing his Domestic Surveillance Program, Bush was breaking the law, the telecoms were breaking the law, and the Constitution was being violated?
That too much to ask all in one day? I guess I can’t complain. Baby steps.
Comment by Levi — 7/3/2008 @ 7:44 am
It’s implicit in what I say that, if my interpretation was correct, Bush was breaking the law.
I don’t believe the Constitution was being violated. I have never been convinced by the Fourth Amendment argument. This is a statutory argument.
Comment by Patterico — 7/3/2008 @ 7:45 am
“What follows is mostly legal gobbeldygook. Read on if you’re into that sort of thing.”
Patterico - That’s what we pay you the big bucks for - so we don’t have to that kind of shit.
Comment by daleyrocks — 7/3/2008 @ 7:46 am
Does that make him worthy of impeachment?
Comment by Levi — 7/3/2008 @ 7:47 am
Perhaps because there was not a “formal” declaration of war (since we were not fighting a nation-state, but an ideology that crosses geopolitical borders almost at will)?
Check of proof: Is there an individual or nation with the authority to surrender to Coalition forces and have such surrender actually be enforced?
There has not been a “formal” declaration of war by the US Congress since 1941. Not Korea, not Vietnam, not Panama, not Grenada, not Kosovo, not the first Gulf War, not Iran circa 1979, none of the uses of US military force since the end of WW2.
Has it been determined that the Authorization for Use of Military Force is the politico-legal equivalent of a Declaration of War?
Comment by Drumwaster — 7/3/2008 @ 7:49 am
What does that matter if FISA applies all the time? If it was a formal declaration, it applies. If it wasn’t, it applies.
Comment by Levi — 7/3/2008 @ 7:51 am
Not specifically the fourth amendment, I’m talking about Bush’s constitutional theory of Presidential power, which basically amounts to ‘I can do anything I want as long as I say I’m keeping the country safe.’
Comment by Levi — 7/3/2008 @ 7:52 am
Just because you’re in motion doesn’t mean you’re driving a car.
Can we retroactively impeach Carter for putting such an unConstitutional violation of a civil rights into place? (I mean, since FISA has been around longer than many of the commenters here, and even the NYT thought it was a grand idea to use it when Clinton was in office.)
Comment by Drumwaster — 7/3/2008 @ 7:54 am
What the hell? Do you see anyone arguing against FISA? People are saying we should abide by it. With nuggets like this, it’s no wonder nobody reads your shitty little blog.
Comment by Levi — 7/3/2008 @ 8:01 am
The FISA law wouldn’t apply to American citizens, except in one specific circumstance - if said American citizen were acting as an agent of a foreign power. But the President doesn’t need to invoke FISA if the only data gathered is that of call patterns (who is calling whom, and how often, rather) than actively “listening in”.
Foreign citizens also don’t have any right to protest that their call data is being gathered, either.
But by all means, let’s make sure that those who are actively trying to kill Americans know exactly how we can track them, so as to make it easier for them to avoid detection and successfully carry out their attacks. And those good Americans like the NYT editorial board (with the explicit cooperation of people like Levi and Harpie) are cheering them on for “sticking it to those rethuglikkkans”.
Good thing Obama will make them drop their 50-year jihad with just a reproachful glance over chocolate milk and cookies.
Comment by Drumwaster — 7/3/2008 @ 8:01 am
And how many millions of visitors have you got, hmmmmm?
*crickets*
Thought not.
Comment by Drumwaster — 7/3/2008 @ 8:02 am
That is not really an argument, Levi. More like rhetorical diarrhea.
Bingo.
Comment by JD — 7/3/2008 @ 8:05 am
“Does that make him worthy of impeachment?”
No, I think he had a faulty statutory interpretation. I wouldn’t impeach a president for that.
“Not specifically the fourth amendment, Im talking about Bushs constitutional theory of Presidential power, which basically amounts to I can do anything I want as long as I say Im keeping the country safe.l”
Well, my non-expert and not-thoroughly-researched view, as I said, is that the Youngstown concurrence controls. If Congress has spoken, that doesn’t end the analysis, but it’s a significant factor. I don’t think that changes every statutory violation into a constitutional violation.
Comment by Patterico — 7/3/2008 @ 8:05 am
What the hell are you talking about?
I know I get more people to respond to me in the comments section of this website than you do at yours, and you’ve been at it for five years.
Comment by Levi — 7/3/2008 @ 8:06 am
I’ve always been unclar how Congress in 1978 could limit Constitutionally granted Presidential powers wihout an amendment to the Constitution. The argumens have been made, but I would be interested to know if they have been tested in court.
Comment by daleyrocks — 7/3/2008 @ 8:06 am
“I know I get more people to respond to me in the comments section of this website than you do at yours, and you’ve been at it for five years.”
Levi - Idiots draw attention to themselves. It’s a common phenomenon. It’s not because we like you or think your comments are worthy. We are laughing at you. You still don’t get it, do you?
Comment by daleyrocks — 7/3/2008 @ 8:09 am
But what was his faulty interpretation? ‘I don’t like this law, I’m not going to follow it.’ Isn’t there something that should be done about that? Doesn’t letting him get away with it with no consequences set a dangerous precedent for his successors? How can you say that there should be no punishment for breaking the law?
Comment by Levi — 7/3/2008 @ 8:10 am
“its no wonder nobody reads your shitty little blog”
That sort of comment drags down the whole thread. Please keep the discussion on a higher plane.
Comment by Patterico — 7/3/2008 @ 8:10 am
Levi would not know good-faithed argument if it bit him in the ass.
Comment by JD — 7/3/2008 @ 8:11 am
Levi, so far your main arguments seem to be building strawmen as fast as anyone can tear them down.
Comment by SPQR — 7/3/2008 @ 8:12 am
If a power is inherent to the President, can Congress limit it or overrule it? Certainly they could not pass a law saying that cabinet appointees must be over the age of 50 (although the Senate could refuse to confirm younger people).
So the question should be more to the point of whether the Commander-in-chief has the inherent power to prevent or regulate any citizen’s communications with enemy foreigners during wartime. I really don’t know the answer to that, although it seems reasonable.
In an era where the Constitution seems to bestow all kinds of unwritten rights, it’s really hard to say.
Comment by Kevin Murphy — 7/3/2008 @ 8:18 am
“But what was his faulty interpretation? I dont like this law, Im not going to follow it.’”
No, I already explained the faulty interpretation and won’t repeat it. As I said, I fell for it myself.
“How can you say that there should be no punishment for breaking the law?”
I didn’t say that. I think the appropriateness of any “punishment” turns largely on intent. Cops sometimes innocently violate Fourth Amendment rights because the laws can be Byzantine. If the cops’ interpretation of the law was reasonable but faulty, and there is no pattern of abuse, they should not be punished for innocently getting the law wrong.
Comment by Patterico — 7/3/2008 @ 8:19 am
shorter Levi - MMmmm, straw! It’s what’s for breakfast [lunch, and dinner]!
Comment by Darleen — 7/3/2008 @ 8:21 am
Judge Walker’s ruling in the immediate case seems to throw it back to the Islamic charity to prove standing, giving them 30 days before tossing the suit, the same issue that has been a problem in other cases. The N.Y. Times soft pedals that issue in their article this morning.
Comment by daleyrocks — 7/3/2008 @ 8:22 am
As far as “wartime”, I believe that the AUMF is defined under the War Powers Act as a Congressional confirming the President’s war powers for an extended period. It was a post-Vietnam compromise, balancing the unlimited control of the military that Presidents asserted (and still assert) with Congress’ belief that a declaration of War is required for any sustained combat.
No President has ever agreed that the War Powers Act was constitutional, or that an AUMF was required. Oddly, both Bushes have gone the AUMF route for political reasons but Bill Clinton did not in the Kosovo war. Clinton, in fact, was DENIED an AUMF by Congress (and by the UN), but did the thing anyway. As long as we are talking about impeachment….
Now, I argued for a formal declaration of war starting about 9/12/01, never mind to idiotic argument that al Qaeda isn’t a country. If you can write an AUMF, you can write a declaration of war. The point to declaring war is that it puts CLEAR TIME BOUNDARIES and clear precedent on the exercise of war powers, and you wouldn’t need dodges like the Patriot Act that have dangerous implications outside of the war setting. Damn, but I was right.
Comment by Kevin Murphy — 7/3/2008 @ 8:30 am
I’m glad to see an admission that W was breaking the law like all the lefties have known and protested for so long.
“As I said, I fell for it myself.”
The excuses for Bush’s lawbreaking and incompetence continue and it blows my mind. Bush has access to more lawyers and legal opinions than anyone in the world but I guess if Patterico fell for it then it’s OK.
I.“How can you say that there should be no punishment for breaking the law?”
“I didn’t say that. I think the appropriateness of any “punishment” turns largely on intent. Cops sometimes innocently violate Fourth Amendment rights because the laws can be Byzantine.”
And more justification. If a cop on the street violates someones civil rights it’s OK for the President of the United States to do it to.
“If the cops’ interpretation of the law was reasonable but faulty, and there is no pattern of abuse, they should not be punished for innocently getting the law wrong.”
In Bush’s case there clearly was a paatern of abuse. He Knew.
Comment by jharp — 7/3/2008 @ 8:38 am
Bush knew in April 2004 in Buffalo, N.Y.
Bush Caught on Tape: “A Wiretap Requires A Court Order. Nothing Has Changed.”»
Bush, April 2004:
Transcript: via whitehouse. gov
Secondly, there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
Comment by jharp — 7/3/2008 @ 8:42 am
I’ve never heard that argument from anyone in the administration, about the AUMF. They’ve always said that FISA was too restrictive and not accommodating enough. Mukasey went on national television last year and was literally weeping as he spouted out some bullshit about some phone call they weren’t allowed to intercept from Afghanistan because of FISA. Arguments like that, and your run-of-the-mill, catch-all Bush justification that ‘the terrorists are going to get us’ is all I’ve ever heard from Bush and his cronies.
Whatever interpretation you used to make about the AUMF wasn’t theirs, and that one was stupid anyway.
Yes, and Bush’s intent was to bypass a long-standing, very accommodating law for no good reason. What’s the innocent explanation for that? Further, what is the innocent explanation for why he (and now virtually all Democrats) would want to grant blanket immunity to his accomplices in the crime?
They didn’t just ‘innocently get the law wrong.’ They were carrying this thing out in secret for years. Isn’t that somewhat of a tacit admission that they knew that what they were doing was illegal? It’s not like they openly announced that FISA had to be bypassed because of the AUMF, they just did it and never told anybody about it.
God you have a long way to go. And I thought small-government conservatives were supposed to be the ones inherently mistrustful of the government and people in power. Yeah right.
Comment by Levi — 7/3/2008 @ 8:50 am
And a wiretap WOULD require a court order. However, simply gathering call data (which is what was being done) does NOT.
The information they are gathering is that Person ‘A’ called Person ‘B’. Person ‘B’ is under surveillance, since he lives upstairs in a mosque known to support terror groups. ‘B’ then calls ‘C’, ‘D’ and ‘E’.
No one was listening in on those calls. Not a single word was actually heard by anyone in the US government. But additional call data surveillance would then be placed on ‘C’, ‘D’ and ‘E’ to attempt to track down other members of the cell.
On episodes of Law & Order (which is where you have apparently gotten your legal training), this information is referred to as “LUDs” (Local Usage Details), and the only information gathered is who made the call, the number called, and the length of the call. That is not a violation of the Fourth Amendment, because your privacy has not been compromised in the slightest.
You voluntarily waived it when you chose to use a third party’s equipment to transport that message, whether it is walkit-talkies (and anyone on the frequency can listen in), e-mail (which has to be given to your ISP for delivery) or telephone.
The NSA isn’t recording the calls, and won’t unless a warrant is obtained from the FISA courts, but nothing in the law prevents them from finding out that a call was made.
JMO
Comment by Drumwaster — 7/3/2008 @ 8:52 am
As for the alleged right to privacy, I will remind you of an old proverb: If you do not wish a thing seen, do not do it. If you do not wish a thing heard, do not say it.
Comment by Drumwaster — 7/3/2008 @ 8:55 am
Is it too fuckin’ much to ask for Levi and harpy to argue in good faith, just once?
Comment by JD — 7/3/2008 @ 9:02 am
“And a wiretap WOULD require a court order. However, simply gathering call data (which is what was being done) does NOT.”
Utter nonsense. And I’ll use Levi’s quote as I remember the day well
“Mukasey went on national television last year and was literally weeping as he spouted out some bullshit about some phone call they weren’t allowed to intercept from Afghanistan because of FISA”
You tell me Drumwater. What was that all about?
Comment by jharp — 7/3/2008 @ 9:03 am
harpy - You have proven to be intellectually dishonest. Patterico is closer to your positiom, yet that is not enough for you. He must also think Bush is guilty of high crimes and misdemeanors. and has trampled the Constitution to prosecute the illegal war of choice for oil. That, and you ignore or discount all positions that do not agree with you. Even Baracky does not agree with you, today.
Comment by JD — 7/3/2008 @ 9:17 am
“As for the alleged right to privacy, I will remind you of an old proverb: If you do not wish a thing seen, do not do it. If you do not wish a thing heard, do not say it.”
So I guess you’ve got no problem with Obama wiretapping your calls.
And in the “War on Drugs” certainly you wouldn’t mind having your home searched in stopping drugs.
After all, if you’ve got nothing to hide what is there to worry about?
You, sir, are un American.
Comment by jharp — 7/3/2008 @ 9:19 am
I’m still finding it hilarious that Levi and jharp keep refering to the Constitution when the issue is not a constitutional guarantee at all. Not to mention not understanding the difference between call detail records and actual surveillance of the phone call.
Comment by SPQR — 7/3/2008 @ 9:22 am
“Patterico is closer to your positiom, yet that is not enough for you.”
I was glad to hear it.
“He must also think Bush is guilty of high crimes and misdemeanors.”
It’s a point of what is the truth. Not that Patterico must agree with me. The evidence points to Bush knowingly broke the law. He specifically stated “any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so.” while at that very time was not getting court orders and continued to not get court orders.
“Even Baracky does not agree with you, today.”
I’m aware and unhappy about it. But let me share something with you. My type does not blindly support whatever my candidate says. When my candidate is wrong I let them know. I’d like to see the wingers try it just once with King George. I am doing something about it and will continue to do something about it.
Comment by jharp — 7/3/2008 @ 9:26 am
Abject lies again, harpy?
And FWIW, if Baracky’s NSA wanted to datamine my records, I would have no problem with that. That you continue to refer to it as wiretapping shows that you have no desire to be honest about the issue. Demagoguery is your friend. And, the evidence most certainly does not suggest that Bush knowingly ignored the law. There are good faithed reasons why one could arrive at some position other than yours.
Comment by JD — 7/3/2008 @ 9:36 am
Drumwaster @ 7 - the Constitution is silent as to what amounts to a “formal” declaration of war. Past SCOTUS decisions have established that any form of congressional authorization of hostilities is sufficient. For constitutional purposes the AUMF is a “declaration” of war.
Comment by wls — 7/3/2008 @ 9:37 am
When you refer to “my type”, harpy, what do you consider that to be ?
Comment by JD — 7/3/2008 @ 9:37 am
jharp
goodness, “your type” bores me to tears with your sanctimonious demagoguery. Mostly because I understand, it is not sincere.
The lawyers can argue nits til the cows come home, but reasonable people are going to see the real difference between gathering of call patterns vs wiretapping (akin to watching traffic from a helicopter vs searching individual cars). “Your type” may try and obfuscate it, and do quite an efficient job of it with “your type” in the MSM. But when you can’t help the King George (or Bu$HitlerHaliburtonZionistNeoCon) stuff, then it is quite clear your interest is rather America burn then allow a “R” President actually use 21st Century technology to fight 21st Century terrorists.
Comment by Darleen — 7/3/2008 @ 9:39 am
Independent small businessman first.
Leftist, second.
Democrat, third.
Comment by jharp — 7/3/2008 @ 9:41 am
“gathering of call patterns vs wiretapping”
And you know this how?
Comment by jharp — 7/3/2008 @ 9:43 am
Okay, jap, pay attention. Bush isn’t “wiretapping” anyone. He is using the intel services to collect CALL DATA - who called whom, and how long they talked. NOT listening in to any calls, and NOT recording anything without a warrant.
Please try to use the intellectual honesty God gave a gorilla, and understand the difference.
Listening in on or recording requires a warrant, finding out that a phone call was made from one phone to another and how long the call lasted other does not. It is as clear and distinct as the difference between breaking and entering and simply watching your house from across the street.
Get it? If Obama violated my Fourth Amendment rights, I would gleefully demand his impeachment. However, I would just as gleefully do so if Bush were doing so. (Because my opposition is to the action, not the perpetrator nor his ideology.) You have shown your utter willingness to defend Obama, with the unfounded assertion that “Repubs were doing it too!” (Never mind that it is patently false, because you guys couldn’t be honest about the time of day if it were someone on the other side of the political spectrum….)
However, Bush’s administration is NOT doing so, and you cannot prove that they are. If there were even so much as the faintest whiff of criminality, don’t you think the Democratically-controlled House would have passed Articles of Impeachment by now?
Comment by Drumwaster — 7/3/2008 @ 9:43 am
Because the NYT revealed those particular national security secrets several months ago. (Charges of treason so far having utterly failed from being made by those so concerned with Constitutional protections.)
Where were YOU? Oh, right, protesting Bush.
Comment by Drumwaster — 7/3/2008 @ 9:45 am
Patterico, is it possible that you favor criminal law over constitutional or UCMJ? I see all your comments related only to statutory law.
Comment by rightwing — 7/3/2008 @ 9:46 am
Patterico and Dalyrocks @ 15: Youngstown Steel is not a good vehicle for analysis here.
The subject in Youngstown Steel was not one committed to the authority of the Executive Branch by the Constitution.
Conduct of intelligence operations during wartime is a subject committed to the authority of the Executive under Article II.
Congress can no more regulate Article II through legislation than it can reach into the docket of the Supreme Court and decide cases by taking a vote as to which side should win and then establishing that winner through legislation.
Comment by wls — 7/3/2008 @ 9:48 am
And you know this how? Since you are accusing someone of intentionally ignoring and breaking the law, the answer to that question is your burden. But obviously you know better than the Leftists in Congress who disagree with you.
Comment by JD — 7/3/2008 @ 9:49 am
jharp - Is there a right to privacy in the Constitution? If you think so, could you point it out to me?
Comment by daleyrocks — 7/3/2008 @ 9:53 am
wls @46 - I agree with you, which was the point of my earlier comment.
Comment by daleyrocks — 7/3/2008 @ 9:53 am
Leftist, second
makes me suspicious of the “first” claim
Comment by Darleen — 7/3/2008 @ 9:58 am
“Since you are accusing someone of intentionally ignoring and breaking the law, the answer to that question is your burden”
Let the trials begin and we’ll find out soon enough. Oh, that’s right, King George wants to pass a law that grants immunity to the lawbreakers. I wonder why that is?
And no one really does know the truth.
It’s all top secret. You remember that, don’t you?
Comment by jharp — 7/3/2008 @ 10:01 am
“Because the NYT revealed those particular national security secrets several months ago. (Charges of treason so far having utterly failed from being made by those so concerned with Constitutional protections.)”
Well if the New York Times says so then it must be true.
And do you have a link?
And no one knows for sure. It’s all top secret.
Comment by jharp — 7/3/2008 @ 10:03 am
“Is there a right to privacy in the Constitution?”
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.
I don’t know if you could call this a right to privacy but sure seems to be a right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”
Comment by jharp — 7/3/2008 @ 10:07 am
The right to be secure does not preclude the possibility that someone is watching you scratch you ass while walking down the street, or watching you pick your nose while driving down the freeways.
You are perfectly secure, with absolutely no right to be “private”. You want “private”, go do whatever the hell you want - but behind locked doors and you don’t talk about it to strangers (such as your neighbor’s friend’s third cousin’s half-sister’s husband who happens to be wanted for a crime against the People of the United States).
Comment by Drumwaster — 7/3/2008 @ 10:12 am
And no one really does know the truth.
It’s all top secret. You remember that, don’t you?
Curious, I wonder if jharp has ever been through a background check or held any type of security clearance?
Comment by Darleen — 7/3/2008 @ 10:12 am
jharp
Is the newstation helicopter over the freeway reporting traffic patterns invading your privacy?
Comment by Darleen — 7/3/2008 @ 10:14 am
“Curious, I wonder if jharp has ever been through a background check or held any type of security clearance?”
And I wonder why you wonder.
The answer is I don’t think so.
Comment by jharp — 7/3/2008 @ 10:16 am
Yet you and your type assert, without a scintilla of evidence, that Bush knowingly and intentionally ignored and broke the law.
Comment by JD — 7/3/2008 @ 10:17 am
Is the newstation helicopter over the freeway reporting traffic patterns invading your privacy?
No. But the government listening to my phone calls is and I’d like to know the truth.
Comment by jharp — 7/3/2008 @ 10:17 am
Call data is just another business record, it is information that you give away to the phone company to engage in a transaction with them. It is no more “private” than any other such business transaction.
Comment by SPQR — 7/3/2008 @ 10:18 am
I’ve got $20 that says “Not a chance in hell”. Not even many people who have had such background checks and clearances would be able to define the differences between Confidential, Secret, and Top Secret, much less any of the conditional additives, such as NOFORN.
{/used to hold a NATO Top Secret, aka “Cosmic Top Secret”}
Comment by Drumwaster — 7/3/2008 @ 10:18 am
#25, Kevin Murphy
I do not see any clear time boundaries in the declarations for either WW1 or WW2.
Avalon, WW2 page
First World War, Primary documents
(Does anyone happen to know why the Avalon Project seems to ignore The Great War or WW1, as it’s now called?)
Comment by htom — 7/3/2008 @ 10:19 am
jharp still does not understand the difference between call data and actual interception of calls.
Comment by SPQR — 7/3/2008 @ 10:21 am
The answer is I don’t think so.
Whoa, it’s not like that’s a hard question.
I take it as a “no” since any one that HAS gone through ‘em, does know it. (raises hand … has gone through them - for financial, law enforcement and government defense work institutions). It’s about understanding what is at stake when it comes sensitive information and not being an insufferable pr*ck sneering about “top secret.”
Comment by Darleen — 7/3/2008 @ 10:22 am
Is the newstation helicopter over the freeway reporting traffic patterns invading your privacy?
No. But the government listening to my phone calls is and I’d like to know the truth
No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.
IE being that traffic helicopter
sheesh
Comment by Darleen — 7/3/2008 @ 10:24 am
This is the main reason that it is such an immense waste of time discussing anything with jharp - all of ones time is wasted trying to educate jharp enough on an issue to actually have a discussion. A point never reached.
Comment by SPQR — 7/3/2008 @ 10:28 am
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
And you know this how?
Comment by jharp — 7/3/2008 @ 10:29 am
And you know this how?
Google it.
Comment by Darleen — 7/3/2008 @ 10:30 am
I agree with WLS #46. Especially when the communication is cross-border. The President’s duty to defend the United States cannot be confined to “one if by land and two if by sea”.
Comment by nk — 7/3/2008 @ 10:31 am
jharp
who is responsible for 9/11/01, and how do you know? Really?
Comment by Darleen — 7/3/2008 @ 10:32 am
Well, #67 is yet another example. jharp is ignorant of what has been publicly reported on the issue.
Comment by SPQR — 7/3/2008 @ 10:32 am
Paranoid, often?
Drum - Mine was TS-SCI
Folks - harpy is as dishonest as Levi, with less cursing. No fundamental difference.
Comment by JD — 7/3/2008 @ 10:37 am
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
And you know this how?
Well, #67 is yet another example. jharp is ignorant of what has been publicly reported on the issue.
Comment by SPQR — 7/3/2008 @ 10:32 am
Please share.
Comment by jharp — 7/3/2008 @ 10:37 am
And you know this how?
Google it.
Comment by Darleen — 7/3/2008 @ 10:30 am
I found nothing on the google that substantiates your claim.
Please help.
Comment by jharp — 7/3/2008 @ 10:39 am
SPQR
IMHO, I’m seeing it less ignorance and more “conspiracist” in nature.
My top secret contacts in the government have just forwarded to me a picture of jharp’s office
Comment by Darleen — 7/3/2008 @ 10:39 am
SPQR
I don’t think it’s ignorance –
indeed, my top secret contacts in the government have forwarded to me just now a picture of jharp’s office
http://tinyurl.com/632jzz
Comment by Darleen — 7/3/2008 @ 10:42 am
It is feigning ignorance just like it did on the thread about all of the gleeeeeeeens. It has no intention of arguing in good faith.
Comment by JD — 7/3/2008 @ 10:47 am
I did find this.
http://www.msnbc.msn.com/id/23235602/
“The eavesdropping remains classified but was confirmed by President Bush.
A U.S. Circuit Court of Appeals dismissed the suit, saying the plaintiffs could not prove their communications had been monitored and thus could not prove they had been harmed by the program.
The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.
ACLU officials described the situation as a “Catch-22” because the government says the identities of people whose communications have been intercepted is secret. But only people who know they have been wiretapped can sue over the program.”
Comment by jharp — 7/3/2008 @ 10:47 am
It is a liar. Demonstrably.
Comment by JD — 7/3/2008 @ 10:50 am
Please ignore jharp. I suspect he is a Nigerian cabdriver angry at the cost of gasoline.
I propose, for debate, whether the President has unfettered power under Article II to monitor all cross-border communications including reading the “wish you were here” postcard from your mother-in-law on vacation in Bora-Bora.
Comment by nk — 7/3/2008 @ 10:50 am
To make my point a little more poignant. A local-area man was arrested today for receiving pufferfish toxin, a very potent poison, through the mail. Would the President have needed Congressional authorization to keep it from coming into the country?
Comment by nk — 7/3/2008 @ 10:55 am
I’m starting to think you guys have got nothing.
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
Please share with me how this is known.
My position is it isn’t known.
So far I’ve gotten about five insults and Drumwater saying the NY Times says so.
Comment by jharp — 7/3/2008 @ 10:56 am
I love their standard. They get to make shite up, offer nothing to support it, and then the burden of proof gets shifted to the other side with claims that since nothing is known, we cannot show that it is just making shite up.
Comment by JD — 7/3/2008 @ 10:57 am
“The government has refused to turn over information about the closely guarded program that could reveal who has been under surveillance.”
Got that. Nobody knows.
It really isn’t a difficult concept.
You are the ones saying “No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
Please just answer how you know this.
You folks are the ones “making shite up”.
Comment by jharp — 7/3/2008 @ 11:16 am
jharp
You are the one saying the government is listening in on your phone calls.
Please just answer how you know this.
Comment by Darleen — 7/3/2008 @ 11:23 am
More legal dribbling.Wpe yo chin or you will get a shock when it hits the keyboard.
Comment by davod — 7/3/2008 @ 11:42 am
“You are the one saying the government is listening in on your phone calls.”
Now you’re just making shite up. I did not say that.
I said no one knows because the government won’t release the details. You know, “top secret”.
But when King George himself defends the use of warrantless wiretaps and threatens to veto any bill that doesn’t provided immunity to the lawbreakers it makes me dam suspicious.
WASHINGTON (CNN) — President Bush defended using government wiretaps without court authorization to monitor terrorism suspects and urged the Senate to renew the USA Patriot Act during his year-end news conference Monday.
The president said he intends to continue using secret international wiretaps to monitor activities of people in the United States suspected of having connections to al Qaeda.
Comment by jharp — 7/3/2008 @ 11:43 am
Darleen,
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
I gave you an honest answer to your query.
Now I’d like one.
How do you know this?
Comment by jharp — 7/3/2008 @ 11:46 am
jharp @ #59
jharp @ #86
sweetcheeks, you might like to loosen the headbands on that tinfoil hat.
Comment by Darleen — 7/3/2008 @ 11:50 am
Darleen,
You are dishonest.
You asked me.
“Is the newstation helicopter over the freeway reporting traffic patterns invading your privacy?”
And I answered.
No. But the government listening to my phone calls is and I’d like to know the truth.
Comment by jharp — 7/3/2008 @ 10:17 am
This is not saying the the government actually is listening to my phone calls. It simply says the act would be invading my privacy and I’d like to know.
Comment by jharp — 7/3/2008 @ 11:54 am
Is there any way to get the government to listen in on my phone calls? And get it to call back? It could replace blogging for me.
Comment by nk — 7/3/2008 @ 11:55 am
#
Darleen,
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
I gave you an honest answer to your query.
Now I’d like one.
How do you know this?
Comment by jharp — 7/3/2008 @ 11:46 am
How about it Darleen?
Got anything?
Comment by jharp — 7/3/2008 @ 11:55 am
jharp
you’re nothing but tedious
it has been pointed out to you several times but here is another from a highly biased source that uses the wrong wording, mixes up the programs and still cannot help but reveal a nugget or two of truth in its diatribe described as news reporting
http://www.nytimes.com/2005/12/24/politics/24spy.html
Nugget:
Baldfaced, unsubstantiated, partisan assertion:
Now, go wrap a few more layers of Reynolds over your head.
Comment by Darleen — 7/3/2008 @ 12:07 pm
Once the method of communication crosses international boundaries, there can be no possible claim that privacy has been violated, and the President doesn’t need to get permission from an American court, since that is directly and specifically under his control as Commander-in-Chief.
You have also forfeited any right of civil debate, since you are not operating under any semblance of good faith.
You have also not acknowledged the difference between collecting the call data and actually eavesdropping on the call.
Until you grow up, do us a favor and let the grups talk.
Comment by Drumwaster — 7/3/2008 @ 12:11 pm
“No, the government may be observing where your calls GO and at what TIMES,
So you give me a link that openly admits this.
“but they aren’t listening to the call itself.”
And nothing on this.
You’re a dishonest hack.
I’ll say it again. No one knows. It’s top secret.
But our President says this.
WASHINGTON (CNN) — President Bush defended using government wiretaps without court authorization to monitor terrorism suspects and urged the Senate to renew the USA Patriot Act during his year-end news conference Monday.
The president said he intends to continue using secret international wiretaps to monitor activities of people in the United States suspected of having connections to al Qaeda.
You’re a joke.
Comment by jharp — 7/3/2008 @ 12:19 pm
“Once the method of communication crosses international boundaries, there can be no possible claim that privacy has been violated, and the President doesn’t need to get permission from an American court, since that is directly and specifically under his control as Commander-in-Chief.”
So if I call my wife from Europe it’s perfectly OK to have the government listen in.
Why don’t you move to Russia. You’re obviously unAmerican.
Comment by jharp — 7/3/2008 @ 12:22 pm
No sweetcheeks
I gave you a link that consistently DESCRIBES pattern analysis as “wiretapping”. Maliciously.
Like you.
Second thought, wrap that foil over your mouth. It’ll keep pollution down.
Comment by Darleen — 7/3/2008 @ 12:23 pm
jharp appears to have switched to repetition and volume of assertion in order to make its dishonest point. What he refers to, thanks to the NY Time and the Left, as wiretapping, is data mining.
Comment by JD — 7/3/2008 @ 12:29 pm
There are two parts to the program, and here is a very oversimplified overview:
There is/was a “data mining” operation which is generally the part that is the subject of the various suits. The telecomms assisted the government by allowing NSA to install equipment in the telecomm facilities which allowed NSA computer systems to sift through the electronic signals passing over the telecomms’ equipment, looking for particular words and phrases which, when combined with information about the location of the participants in the call, might suggest potential terrorist activity.
The second part of the program involves actual monitoring of telephone conversations, either in real time or after the fact. Historically, if the participants in the conversations were all outside the US then no warrant was required. If all participants are inside the US, then a warrant under Title III or FISA is required.
Two sticky issues have arisen — what about when one party to the conversation is inside the US and the other is not. The second issue is when both parties are outside the US but due to modern technology, their signal transmission actually passes through equipment located inside the US. The FISA court actually resolved the latter issue against the US due to the antiquated nature of the language in the FISA statute, which was written long before the advent of cell phone technology and the internet. One of the key functions of the Patriot Act, the Protect Act, and the new FISA legislation has been to bring the language of these various statutes in line with modern technology developments.
Comment by WLS — 7/3/2008 @ 12:33 pm
JD
Did you hear? The government is now going to wiretap produce.
http://www.reuters.com/articlePrint?articleId=USN034807620080703
Comment by Darleen — 7/3/2008 @ 12:37 pm
Levi wrote: I know I get more people to respond to me in the comments section of this website than you do at yours, and you’ve been at it for five years.
HA! That’s like bragging about how far batters hit your fastballs.
Comment by L.N. Smithee — 7/3/2008 @ 12:40 pm
By George, I think he’s got it!
The other countries will probably be listening in, too, since you are calling a country that they hate (the US), and you will neither know (except for the clicks and pops and beeps) nor be able to whine about it later.
Comment by Drumwaster — 7/3/2008 @ 12:55 pm
Which brings us back to this.
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
How do you know this?
Hint. You don’t. It’s top secret.
Admit it and move on.
Comment by jharp — 7/3/2008 @ 1:12 pm
“I gave you a link that consistently DESCRIBES pattern analysis as “wiretapping”. Maliciously.”
Oh, now I get it. Since the NY Times inaccurately describes pattern analysis as wiretapping that means there is no warrantless wiretapping.
Are you retarded?
Comment by jharp — 7/3/2008 @ 1:15 pm
“And no one really does know the truth.”
Harpy uses the shopworn rhetoric of all lefties who resort to conspiracy theories and nutbag loon talk. Just like the Loose Change folks -
(”but how do we really know why the buildings fell down? Who’re you gonna believe, us or your lyin’ eyes?).
It’s akin to Mulder on the X - Files; “The Truth is OUT THERE!”
Comment by Dmac — 7/3/2008 @ 1:21 pm
I do fear for Jharp’s safety. He is the poster boy for paranoia and the model for Mel Gibson’s character in Conspiracy Theory flick. That said, with all the alphabet domestic intelligence groups and that fact that the evil BusHitler actually has been detaining some dissenters in secret government facilities, Jharp may well find himself vanishing to the gulag. Horrors! One hopes that he and Levi don’t get stuck in a cell with Mikey Moore.
Personally I don’t worry about any wiretapping of my phones as I am not guilty of anything illegal, nor am I a disloyal citizen. Of course I haven’t bought into Urkel’s electric kool-aid acid test yet nor do I get a woodie watching or listening to him. In fact, he makes me puke with revulsion as do all the idiot bastard’s sons who are intellectually dishonest and spin Urkel’s lies, inveigling and obfuscations. Change! Hope!
Umgawah, bang, bang, beep, beep, white blood, mulatto power. Wish there were a feature here that would allow me to easily read all of Levi’s and JHarp’s posts so I can worship at their altar of liberal enlightenment.
Comment by madmax333 — 7/3/2008 @ 1:32 pm
jharp, projection much?
Comment by SPQR — 7/3/2008 @ 1:34 pm
This is of course yet another in a long string of examples of Levi and now jharp reveling in their ignorance of a topic that they nonetheless boldly opine upon.
And another example of what a waste of time they are because they do not understand the basics of an issue and won’t learn.
Comment by SPQR — 7/3/2008 @ 1:37 pm
Get this. We find out they were listening in on phone calls without warrants.
And better yet it comes from the great Glenn Greenwald.
I know you America and rule of law haters don’t like it but it is a great day for our country.
Let the trials begin!
http://www.salon.com/opinion/greenwald/
Judge Walker’s decision (.pdf) was issued in the case of Al-Haramain v. Bush. That lawsuit was brought against the Bush administration by an Oregon-based Muslim charity and two of its American lawyers, alleging that the Government violated FISA — i.e., broke the law — by eavesdropping on their telephone conversations without the warrants required by law. The warrantless eavesdropping occurred as part of Bush’s NSA spying program, which entailed spying on Americans’ international communications without warrants (the lawyers were in London when they spoke on the telephone to their client in Oregon). What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.
The Bush administration argued that the plaintiffs could not prove their case because, to do so, they would have to rely on documents and information that the President deemed to be “state secrets” (i.e., the Government’s eavesdropping activities) and which are, therefore, unusable in court. That is the argument the court rejected — holding instead that Congress, when it enacted FISA, established a procedure that allows even classified information to be considered by a court, and the President’s Article II powers cannot override the FISA statute. As the Court pointed out, Congress’ core purpose in enacting FISA in 1978 was to bar the President from exercising untrammeled, unchallenged power in the area of eavesdropping. Thus, presidential assertions of secrecy do not override the law.
Looks as if a few knuckledragging GOPers are going to have a little crow for dinner tonight.
Comment by jharp — 7/3/2008 @ 1:47 pm
Another Greenwald link! Oh, my, I’m hurting myself laughing.
jharp evidently wants to be known as a joke.
Comment by SPQR — 7/3/2008 @ 1:48 pm
– if my interpretation was correct, Bush was breaking the law. I don’t believe the Constitution was being violated. –
.
There’s no way to tell. The evidence that describes the scope and rules for surveillance are state secret.
Comment by cboldt — 7/3/2008 @ 1:52 pm
– Conduct of intelligence operations during wartime is a subject committed to the authority of the Executive under Article II. –
.
In peacetime too. Gathering of foreign intelligence information doesn’t “stop” based on the presence or absence of “war.”
Comment by cboldt — 7/3/2008 @ 1:59 pm
cboldt, you mean that when FDR illegally intercepted communications through US cable companies to and from the Japanese embassy, he should not have been impeached?
Comment by SPQR — 7/3/2008 @ 2:00 pm
SPQR,
Go read Judge Walkers decision.
“What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.”
Huge breakthrough. Huge.
You tickle me with your attacks on Greenwald. You’ve got nothing. A federal judge appointed by Bush 41 slaps down the “state secrets” bullshit.
“And the DOJ produced transcripts of the eavesdropped telephone calls.”
Reag that two or three times or however many it takes for it to sink in.
Busted. Let the trials begin!
Comment by jharp — 7/3/2008 @ 2:00 pm
jharp, I do not have “nothing” on Greenwald. The entire blogosphere showed Greenwald to be a lying nut. Meanwhile, you’ve shown you’ve no more credibility.
Comment by SPQR — 7/3/2008 @ 2:02 pm
cboldt, you mean that when FDR illegally intercepted communications through US cable companies to and from the Japanese embassy, he should not have been impeached?
Wah, wah, wah. A democrat did it too.
So in wingnut land that makes it legal.
Comment by jharp — 7/3/2008 @ 2:02 pm
jharp, in wingnut land, it is ignored. Your wingnut land that is.
Comment by SPQR — 7/3/2008 @ 2:04 pm
“What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.”
Let’s stay focused on the issue as it is HUGE.
Greenwald’s credibility has nothing to with it.
The circuit court’s decision has everything to do with it.
Go read Judge Walkers decision.
Comment by jharp — 7/3/2008 @ 2:06 pm
– intercepted communications through US cable companies to and from the Japanese embassy –
.
Foreign embassies are the quintessential locus for “gathering foreign intelligence” without resort to court supervision.
.
Separate subject - the “call pattern” story. Here’s a link to the law that purports to regulate PRTT for foreign intelligence gathering purposes: Title 50, CHAPTER 36, SUBCHAPTER III
Comment by cboldt — 7/3/2008 @ 2:12 pm
cboldt, prior to WWII, when the FDR administration was intercepting cable communications, there were no statutory exceptions at all to the statute that forbade it. The FDR administration knew it was explicitly illegal. But the political parties were adults back then, unlike today.
Comment by SPQR — 7/3/2008 @ 2:14 pm
Al Haramain v. Bush : Doc 453 Plaintext of Judge Walker’s opinion and order of July 2, 2008.
.
He basically says the civil remedy is toothless, as intended by Congress (i.e., the law is there, but no plaintiff can possibly obtain relief under it) but plaintiff is invited to “knock himself out” in coming up with non-state-secret evidence that he was subjected to state-secret surveillance. LOL
Comment by cboldt — 7/3/2008 @ 2:16 pm
nk wrote: Please ignore jharp. I suspect he is a Nigerian cabdriver angry at the cost of gasoline.
Hold on a cotton pickin’ minute, partner!
Being a black man myself, I can tell you — there aren’t too many African natives where I live who are slinging rock, parking their raspberries on porches with fake gold teeth and baggy pants, or lounging on Skid Row in an alcoholic or drug-induced state of semi-consciousness. They work two jobs as security guards, fast food drones, gas station attendants, and cab drivers to pay for college. Eventually, they open businesses. They work in hospitals as physicians or credentialed support staff. They work in banks, brokerages, real estate offices.
I know and/or have worked with immigrants from Ghana, Ethiopia, Eritrea, and Nigeria. They are studious and hard-working people who appreciate this country more than most natives even when they suffer discrimination. And — for the most part — they don’t whine about life in America because they have beaten the odds and made it to a land where their hard work pays dividends beyond survival under the thumb of despots, tyrants, and warlords who would just as soon kill them as not.
It speaks volumes, IMHO, that rather than contrast the advantage of his American home with the land of his paternal roots, Obama chose to throw his lot in with the “White folks greed runs a world in need” crowd of Jeremiah Wright’s Perpetual Victim church.
Comment by L.N. Smithee — 7/3/2008 @ 2:17 pm
cboldt, but we are assured by Greenwald/Ellersby/Ricky that this court opinion is one of the Four Horseman of the Apocalypse?
Comment by SPQR — 7/3/2008 @ 2:17 pm
jharp - Amazing that you discovered the case that this post is about. Truly incredible.
The problem you have is relying on Greenwald, who has incorrectly interprested the FISA kerfuffle from the start.
jharp - What do the democrat leaders who were briefed in on the program currently say? Could you let us know please? Harman was a big supporter, which caused her to get kicked to the curb.
Comment by daleyrocks — 7/3/2008 @ 2:21 pm
– prior to WWII, when the FDR administration was intercepting cable communications, there were no statutory exceptions at all to the statute that forbade it. –
.
A statute that forbids the gathering of foreign intelligence information without a warrant would be unconstitutional on its face. FISA doesn’t forbid it either, it expressly recognizes the fact that embassies wiretapping is ALWAYS warrantless.
.
But I’m interested in any cites you have that describe the FDR activity juxtaposed against some statutory or court-laid framework.
Comment by cboldt — 7/3/2008 @ 2:21 pm
jharp: Admit it and move on.
Thus spake the poster boy for intellectual dishonesty. Heal thyself!
Comment by L.N. Smithee — 7/3/2008 @ 2:22 pm
cboldt, I’ll have to do some digging. I read it in a history of the intelligence / decryption efforts of the Pacific War - it will take some time for me to recall which book. And it was mentioned on this blog in the scores of long discussions we had here about FISA in recent years.
Comment by SPQR — 7/3/2008 @ 2:26 pm
– when FDR illegally intercepted communications through US cable companies to and from the Japanese embassy –
.
Unless I see the statute that forbids it, I think the statement that an FDR-ordered warrantless interception of communications to/from a foreign embassy is/was illegal, is false.
.
Court cases have consistently held that this aspect of surveillance is out of the court’s sphere of competency.
Comment by cboldt — 7/3/2008 @ 2:28 pm
daleyrocks,
“The problem you have is relying on Greenwald, who has incorrectly interprested the FISA kerfuffle from the start.”
Wrong. I am relying on the Circuit Court and Judge Walkers decision. Go read it.
“jharp - What do the democrat leaders who were briefed in on the program currently say? Could you let us know please? Harman was a big supporter, which caused her to get kicked to the curb.”
What makes any difference what the democrat leaders say?
Bush and company broke the law. Are you saying if the democrats told him it was OK to break the law that makes it OK?
More straight thinking from wingnut land. Since the dems didn’t stop it it’s legal.
You guys are nuts.
Comment by jharp — 7/3/2008 @ 2:29 pm
cboldt, no, there was a specific statute in 1941 that forbade the interception of cables and had no exceptions. I can’t think of any court cases that would not be well after the fact.
Comment by SPQR — 7/3/2008 @ 2:30 pm
#105 - “Personally I don’t worry about any wiretapping of my phones as I am not guilty of anything illegal, nor am I a disloyal citizen.”
We welcome you, comrade, we hope you like our shiny new Gulag. Just keep your mouth shut and you’ll be fine.
Another sheep, belly up in fear.
Comment by Pontificoot — 7/3/2008 @ 2:36 pm
jharp, you can’t be relying on Walker’s opinion since it does not support your claims.
Comment by SPQR — 7/3/2008 @ 2:40 pm
– there was a specific statute in 1941 that forbade the interception of cables and had no exceptions. –
.
I don’t believe it. I’m researching your contention for you right now. Communications Act of 1934.
Comment by cboldt — 7/3/2008 @ 2:41 pm
As for court cases, surely you know the Olmstead and Katz pair, and intervening federal legislation aimed at “rectifying” what Olmstead wrought.
Comment by cboldt — 7/3/2008 @ 2:42 pm
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
With nothing, nada, zilch, zero evidence to support the claim.
And then the 6th Circuit Court decision.
“What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.”
And the thread wants to start talking about FDR.
Bizzarro world.
Comment by jharp — 7/3/2008 @ 2:46 pm
jharp, given your habit, complaining about a digression in a thread only shows your own hypocrisy.
Comment by SPQR — 7/3/2008 @ 2:51 pm
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
“What makes this case unique is that the lawyers and charity know for certain that they were spied on as part of the secret NSA program because the DOJ accidentally produced transcripts of those calls.”
Got that?
The Department of Justice produced transcripts of the calls that were tapped.
Comment by jharp — 7/3/2008 @ 2:57 pm
jharp - Do you know how you can tell when Greenwald is lying? When he’s writing.
Walker is the third hederal judge to rule against the program. BFD. Diggs Taylor gave the plaintiffs summary judgement in a joke opinion when the government offered no affirmative defense. Her wacky ruling was overturned and ridiculed.
Ron Gilman, the second judge he cites, wrote a dissenting opinion. It carried no weight, yet Greenwald continues to cite it as if it had precedential value, the putz.
Greenwald’s article also talks about warrantless surveillance. Did you see any mention of warrants or the lack thereof in Walker’s opinion? I didn’t. I fact, the government doesn’t even acknowledge surveilling the charity in the case, yet that moron Greenwald automatically assumes they were and that they were doing it without warrants. If you find that citation, let me know, mkay.
Comment by daleyrocks — 7/3/2008 @ 3:13 pm
Amusingly, Walker’s opinion dismisses the complaint’s allegations with regard to FISA and strongly suggests that the plaintiffs will not be able to amend them to conform.
But to find that out, you have to read it.
Comment by SPQR — 7/3/2008 @ 3:17 pm
47 USC 605 - Unauthorized publication or use of communications
.
That is the “current” version of the Communications Act of 1934. The statutory linkage circa 1941 is proving tough to reconstruct.
.
The statutory linkage today is from
18 USC 2511(2)(f). That section also has recent history in that it cross references FISA (a 1978 law), but the general principle of constitutional law, that surveillance for foreign intelligence purposes is within the executive’s sole prerogative, is embodied there, and in numerous cases that predate FISA (see the “Keith” case - and it likely has some useful historical citations).
.
Another example that is not infrequently brought up to justify “secret surveillance” is the WWII Office of Censorship, established under the First War Powers Act.
.
The statutorily-enabled, and operated in plain view Office of Censorship is not a good parallel to a unilateral program of secret surveillance of publicly-unknown scope.
Comment by cboldt — 7/3/2008 @ 3:21 pm
– Did you see any mention of warrants or the lack thereof in Walker’s opinion? I didn’t. –
.
.
There are more instances, but by this time in the case, the issue of “warrantless” and alleged the surveillance of al Haramain as against the FISA framework are abundantly clear.
Comment by cboldt — 7/3/2008 @ 3:31 pm
– Amusingly, Walker’s opinion dismisses the complaint’s allegations with regard to FISA and strongly suggests that the plaintiffs will not be able to amend them to conform. –
.
Also amusingly, as you know from reading the opinion, Judge Walker thinks NO plaintiff could obtain relief under the statute. IOW, the remedy expressed by the statute is illusory.
.
Which makes one wonder, if all plaintiffs are going to lose in court, why the push to get the cases tossed out of court?
Comment by cboldt — 7/3/2008 @ 3:39 pm
I trying to make my way through Judge Vaugh’s decision, but the one thing I have noticed is that the government did not make a frontal assault on FISA itself as a violation of the Artilce II Executive powers. THe government’s argument seems to have been that whatever FISA is, the State’s Secrets privilege from common law survived, and remains a bulwark against any private causes of action under FISA when it is properly invoked.
Vaugh’s decision doesn’t specifically address whether FISA is an unconstitutional encroachment on Article II — he accepts as written the Congressional language in the FISA legislation that Congress is rejecting the notion of inherent authority in the Executive to conduct warrantless wiretapping pursuant to Article II.
The question remains whether Congress could reject such a notion without violating Article II. If the Executive Branch challenges this provision in FISA, rather than simply relying on the State’s Secrets privilege as an end-run around FISA, there might well be a different outcome.
This decision will now go to the 9th Circuit — problaby the same 3 judge panel that decided the earlier issue. That panel had two very liberal judges on it.
I suspect it’ll be in the SCOTUS in two terms.
The strategy pursued in this case avoided a constitutional confrontation. We’ll see for how long that lasts.
Comment by WLS — 7/3/2008 @ 3:52 pm
– Walker is the third hederal judge to rule against the program. –
.
See Judge Aiken’s decision in the Brendan Mayfield case too. Currently up on appeal by the government.
.
Orin Kerr’s Analysis of the Oregon FISA Decision - September 27, 2007
Comment by cboldt — 7/3/2008 @ 3:52 pm
cboldt @140 - That talks about the legislative history and the plaintiffs’ claims, not the actual facts of the case. The plaintiffs did not prove anything nor did the defendants admit anything. How would anyone reach a conclusion if any wiretapping took place in this instance that it was warrantless?
Comment by daleyrocks — 7/3/2008 @ 3:55 pm
– This decision will now go to the 9th Circuit — problaby the same 3 judge panel that decided the earlier issue. That panel had two very liberal judges on it.
I suspect it’ll be in the SCOTUS in two terms. –
.
The 9th Circuit reversed the District Court ass to the usability of the government document as evidence of having been under surveillance. I doubt they are going to reverse Judge Walker after he dismisses the al Haramain case with prejudice. Al Haramain is apt to appeal to SCOTUS, where I see “cert denied” in the future.
.
The alternative is a Congressional cut-off, where causes of action based on 50 USC 1809 (with allegations of surveillance from 9/11/2001 to 1/17/2007) are not permitted to lie in court.
Comment by cboldt — 7/3/2008 @ 3:57 pm
“Vaugh’s decision doesn’t specifically address whether FISA is an unconstitutional encroachment on Article II — he accepts as written the Congressional language in the FISA legislation that Congress is rejecting the notion of inherent authority in the Executive to conduct warrantless wiretapping pursuant to Article II.”
WLS - He said language was deleted from the final bill to avoid any recognition of inherent presidential power, but goes on to say later he is not sure whether the Article II argument has been tested.
Comment by daleyrocks — 7/3/2008 @ 3:58 pm
– not the actual facts of the case. The plaintiffs did not prove anything nor did the defendants admit anything. How would anyone reach a conclusion if any wiretapping took place in this instance that it was warrantless? –
.
I took your “no mention of warrantless” literally. If I’d taken it as “no evidence of warrantless,” I’d not have commented.
.
My mistake.
Comment by cboldt — 7/3/2008 @ 4:00 pm
#121 L.N.Smithee- I hear you. I think the immigrant community often works its butt off. Much more so than the minority or redneck people born here, at least in my experience working with state employee drones. Dirty Pretty Things is an excellent movie that deals with the struggles of two immigrants played by Chiwetel Ejiofor and Audrey Tatou in west London.
#135 Pontificoot- at least I am not seeing conspiracies where there are none. If you want to believe ib dickwads like Pelosi, Reid and Urkel, be my guest. Bet you are a troofer also and have a raging case of BDS? Now, bioya,mf and gfy ad hominemly. jajajaja
Comment by madmax333 — 7/3/2008 @ 4:01 pm
cboldt - No problem. My reference was in the comment about Greenwald. There is no evidence for him to draw the conclusions he has about the case. We do not know if there was wiretapping (although because of the mishandled document we think we do) and we certainly do not know if it was warrantless.
Comment by daleyrocks — 7/3/2008 @ 4:04 pm
cboldt - If there was wiretapping with a warrant, it could have all been legal, but the state secrets doctrine would prevent both the judge and the government from revealing that to the plaintiffs. Easy come easy go.
Comment by daleyrocks — 7/3/2008 @ 4:06 pm
Here’s where the Judge Walker (I think I called him Judge Vaughn above — Its Judge Vaughn Walker) misses the mark, and makes an error that won’t stand up on this record:
“Congress appears clearly to have
intended to——and did——establish the exclusive means for foreign intelligence surveillance activities to be conducted. Whatever
power the executive may otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities
and it limits the executive branch’s authority to assert the state secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities.”
If the “power the executive may otherwise have had” flows from Article II, Congress couldn’t diminish that power through passage of FISA — it would require an amendment to the Constitution to diminish that power.
Judge Walker didn’t even try to define this power the executive “may otherwise have”, or its origin. So the question remains whether or not Article II confers upon the Pres. the authority to collect intelligence in a time of war against persons believed to be part of the opposition.
Comment by WLS — 7/3/2008 @ 4:08 pm
Making a liar out of myself (on “I’d not have commented”), here is Judge Walker on “the evidence.” (@ p41-42)
.
I don’t recall any discussion in the case (not just this opinion and order, but other court documents and reports I’ve read) that conclusively establish whether the surveillance evidenced by the “Sealed Document” was under a warrant or not. Al Haramain alleges the surveillance was undertaken without a warrant.
Comment by cboldt — 7/3/2008 @ 4:15 pm
– If there was wiretapping with a warrant, it could have all been legal, but the state secrets doctrine would prevent both the judge and the government from revealing that to the plaintiffs. Easy come easy go. –
.
I think that’s the case for 100% of the plaintiffs. This statute has no practical value, except to delude people into thinking there is some sort of statutory check on secret surveillance.
Comment by cboldt — 7/3/2008 @ 4:18 pm
– question remains whether or not Article II confers upon the Pres. the authority to collect intelligence in a time of war against persons believed to be part of the opposition. –
.
I understand the fixation on “in a time of war,” but it’s an unnecessary and incorrect limitation. The executive power to conduct foreign intelligence information is just as strong in time of peace as it is in time of war.
Comment by cboldt — 7/3/2008 @ 4:23 pm
Al Haramain alleges the surveillance was undertaken without a warrant.
c.boldt - I think we’re in agreement on the facts.
My point is that all the hysteria about this being a case about warrantless eavesdropping could be complete BS. Nevertheless, the Judge’s analysis of FISA is what makes it necessary to read.
Comment by daleyrocks — 7/3/2008 @ 4:26 pm
It’s been funny watching you morons while at work where I can read but can’t post insist that this whole affair is about a data-mining operation, when the plaintiffs in this very court decision based there whole case on the fact that they were sent a transcript of their phone conversations by the government.
A lot of people have embarrassed themselves in this thread.
Comment by Levi — 7/3/2008 @ 4:53 pm
It’s been funny watching you morons while at work where I can read but can’t post insist that this whole affair is about a data-mining operation, when the plaintiffs in this very court decision based there whole case on the fact that they were sent a transcript of their phone conversations by the government.
A lot of people have embarrassed themselves in this thread.
Comment by Levi — 7/3/2008 @ 4:53 pm
Once, just once I’d like to hear a wingnut say “I was wrong”.
The data miners seem to have disappeared and the knuckledraggers are trying to woo us with their knowledge of the law.
Total embarrassments to our country as well as themselves.
Comment by jharp — 7/3/2008 @ 5:03 pm
It’s funny watching you two clowns trying out for Gleen All-The-People-And-The-Places-I-Have-Been Gleenwald’s next cabana-boy.
Comment by nk — 7/3/2008 @ 5:11 pm
“It’s funny watching you two clowns trying out for Gleen All-The-People-And-The-Places-I-Have-Been Gleenwald’s next cabana-boy.”
I guess it’s a win win cause I’m having quite the good time seeing you gentleman exposed as the liars and purveyors of false information that you are.
Comment by jharp — 7/3/2008 @ 5:22 pm
It can be done. I got the legendary DRJ to do it, and it took about 200 posts, but it can be done.
Comment by Levi — 7/3/2008 @ 5:32 pm
exposed as the liars and purveyors of false information that you are.
Oooooo…. the devestating PeeWee Herman manuever!
twit
Comment by Darleen — 7/3/2008 @ 5:33 pm
What false information? Article II gives the President the duty and power to monitor anything outside our borders or anything crossing our borders. Inside our borders, the Fourth Amendment applies. Where are you two morons coming from? Bushee did it, me no likee it?
Comment by nk — 7/3/2008 @ 5:35 pm
japster, lying through his teeth, as usual.
“Ignore, deny, change the subject, lie about the facts.” You have your hero’s tactics down pat.
I’m sure he and his cabana boy are sooooo proud.
Comment by Drumwaster — 7/3/2008 @ 5:40 pm
Once, just once I’d like to hear a wingnut say “I was wrong”.
It can be done. I got the legendary DRJ to do it, and it took about 200 posts, but it can be done.
Comment by Levi — 7/3/2008 @ 5:32 pm
Can you link it for me? I missed it. Maybe she did. She is a very kind person and just could not stand to hurt a retard (that’s you) anymore.
Comment by nk — 7/3/2008 @ 5:42 pm
harpy and Levi - Where in that opinion does the judge address whether this was done with or without a warrant?
Comment by JD — 7/3/2008 @ 5:43 pm
Actually, jharp, it’s been fun watching you. And, unlike you, I won’t call you names. It is obvious what you are. No further descriptions are necessary. There are people who know. It’s not the President doing the intelligence gathering. Those people who do have sworn an oath to support and defend the constitution, against all enemies, foreign and domestic Yet, they have not come forward to declare that the constitution has been violated. I realize you most likely do not believe that they would hold to their oath. However, unlike you, they actually have integrity.
Again, it has been fun watching you. I imagine all who actually know have enjoyed watching you, also. Good luck on your future space voyages.
Comment by Barney — 7/3/2008 @ 5:45 pm
In the Tim Russert thread. You could ask her again, too. Her and pat have been dodging me ever since.
Comment by Levi — 7/3/2008 @ 5:48 pm
NK,
Levi is right.
I tried every way I could in the Russert thread to explain Jeremiah Wright’s statements as based on anything but racist and anti-American beliefs. In the end, I had to stand by my original post on the subject that asserted Wright’s words show he is hate-filled and anti-American. Basically, Levi made me eat my [original] words.
Comment by DRJ — 7/3/2008 @ 5:58 pm
I’ll bet he is so proud at having proven the Lightbringer’s spiritual mentor a race-baiting America-hater.
Comment by Drumwaster — 7/3/2008 @ 6:00 pm
Drumwaster - His moral compass, the man he could no more cast aside than his grandmother. How easily Obama changes his mind and becomes an ordinary hack politician!
Comment by daleyrocks — 7/3/2008 @ 6:07 pm
“I guess it’s a win win cause I’m having quite the good time seeing you gentleman exposed as the liars and purveyors of false information that you are.”
jharp - I see no evidence. Can you be specific.
Comment by daleyrocks — 7/3/2008 @ 6:09 pm
This?
Levi,
Patterico asked me to state the liberal position in my own words:
Liberals believe that Jeremiah Wright’s statements are irrelevant because Barack Obama is not responsible for statements other people make. The overwhelming national support for Barack Obama, extensive anti-Bush sentiment, and McCain’s lackluster support from his base make it virtually impossible for the GOP to win this election so conservatives are willing to do or say anything to win, including exploiting racism.
Can we discuss it?
Comment by DRJ — 6/22/2008 @ 11:51 am
I dunno; I vote Levi’s out for the weekend or something - his comment #342 (see Patterico at #341) doesn’t sound like someone who doesn’t want to finish this thing.
Oh the suspense. Thanks to DRJ’s plus Patterico’s megapatience, plus (credit where credit’s due) Levi’s willingness to stick with this thing, all Levi has to do to win 10 bucks is to either say “OK” or tell DRJ how she can correct her statement to better fit his position.
Can he do it? Will he do it? Cmon Levi, you’re almost there…
Comment by no one you know — 6/22/2008 @ 12:01 pm
no one you know,
I agree. I think Levi is busy and that he will return when he can. I updated my comment so it would be easier for him to find.
Comment by DRJ — 6/22/2008 @ 12:48 pm
Re: the original post, Tom Brokaw will replace Tim Russert as moderator of Meet The Press through the 2008 election.
Comment by DRJ — 6/22/2008 @ 12:50 pm
I’ve been switching computers, in case you were wondering, but yeah. I’m ready. I’ve said a number of times already which of DRJ’s statements I find agreeable, her refinements are fine, too. Whatever is supposed to happen next is up to you guys.
Also, I might be bringing this new computer back to the shop, so you guys might have to go without me again in the near future.
Comment by Levi — 6/22/2008 @ 1:29 pm
Levi,
Do me a favor.
If DRJ’s comment 361 is a fair statement of your position, please say that clearly in a comment. That way, I’ll have something to link when I put up the post where you guys have your debate.
Comment by Patterico — 6/22/2008 @ 1:51 pm
If DRJ’s comment 361 is a fair statement of your position, please say that clearly in a comment.
Yes it is.
Comment by Levi — 6/23/2008 @ 2:32 pm
This? You have got to be kidding. I’m sorry I did not drop into that thread but I was doinf CLE at the time. As Xrlq attests, CLE can really mess up your mind.
Comment by nk — 7/3/2008 @ 6:11 pm
Does the FISA Court of Review itself affect your
(Patterico) view now or as of Nov 2002?
See Sealed Case No. 02-001 USFISA Court of Review
(Nov 2002) which also referred to the earlier
decision in US v. Truong Dinh Hung (4th Circuit 1980) that explicitly discusses the President’s
inherent authority.
Comment by eric rowe — 7/3/2008 @ 6:15 pm
You’d be suprised how much people you don’t know know about you.
Morons.
Comment by nk — 7/3/2008 @ 6:21 pm
Levi and jharp - Since you are now self-proclaimed wiretapping and FISA experts, I have a question for you.
If the phone calls in questions to and from the charity were to a foreign target of terrorist surveillance, would they have required a warrant to eavesdrop on those calls?
Comment by daleyrocks — 7/3/2008 @ 6:51 pm
Levi,
I’m not ducking you but I don’t post anymore so I’m waiting for Patterico to start a new thread where we can debate. I’m ready to go forward anytime.
In addition, I doubt Patterico is ducking you. I think he is waiting on you to clearly state you want to go ‘double or nothing.’ You indicated that you did at one point in the Russert thread, but you never said it after you approved the final version of the liberal statement.
Comment by DRJ — 7/3/2008 @ 7:14 pm
“If the phone calls in questions to and from the charity were to a foreign target of terrorist surveillance, would they have required a warrant to eavesdrop on those calls?”
I have a question for you since you seem to know little about what you opine on.
Who makes the legal distinction of who is a foreign target of surveillance?
Comment by jharp — 7/3/2008 @ 7:25 pm
So you don’t know anything about FISA then, do you jharp? You don’t understand any of the basics about the issue you so boldly opine upon. And you’ve never bothered to learn any of the basics. But everyone who wastes their time trying to explain them to you is a moron?
Comment by SPQR — 7/3/2008 @ 7:28 pm
jharp,
I’m interested in your answer to that question. Can you please answer it directly?
Comment by DRJ — 7/3/2008 @ 7:42 pm
Not to mention not understanding the difference between call detail records and actual surveillance of the phone call.
Comment by SPQR — 7/3/2008 @ 9:22 am
You were here earlier pimping the call detail record argument that was and is 100% false.
And you’re telling me I don’t know about the case.
Good grief.
Comment by jharp — 7/3/2008 @ 7:46 pm
DRJ,
And I’m interested in your response to mine.
Who makes the legal distinction of who is a foreign target of surveillance?
Comment by jharp — 7/3/2008 @ 7:47 pm
jharp, yes I am telling you that you don’t know about the issues in the surveillance program.
You continue to prove it.
Comment by SPQR — 7/3/2008 @ 7:49 pm
But everyone who wastes their time trying to explain them to you is a moron?
Comment by SPQR — 7/3/2008 @ 7:28 pm
No.
The morons were the bozos touting the below argument with zero, nada, zilch evidence.
Who ran and hid when I asked for ANY piece of evidence to back their claim.
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
Comment by jharp — 7/3/2008 @ 7:50 pm
Changing the subject, and ignoring uncomfortable questions.
Never gonna learn, are you?
Comment by Drumwaster — 7/3/2008 @ 7:51 pm
jharp, you’ve not bothered to learn that the surveillance program that the NYT had written articles about some time ago, that was the subject of the lawsuits against the telecoms, that was extensively discussed on this blog and that was in part discussed by the Bush administration was indeed about searching through call detail records.
Comment by SPQR — 7/3/2008 @ 7:53 pm
Just more confirmation of my point that jharp is a troll who is wasting others’ time by intentionally remaining ignorant of issues so as to be unable to write coherent arguments about them.
Comment by SPQR — 7/3/2008 @ 7:56 pm
Fuggedaboutit, SPQR. He’s positively allergic to the facts.
Comment by Drumwaster — 7/3/2008 @ 7:56 pm
“jharp, you’ve not bothered to learn that the surveillance program that the NYT had written articles about some time ago, that was the subject of the lawsuits against the telecoms, that was extensively discussed on this blog and that was in part discussed by the Bush administration was indeed about searching through call detail records.”
So that is your evidence that “they aren’t listening to the call itself.”
“No, the government may be observing where your calls GO and at what TIMES, but they aren’t listening to the call itself.”
No one denied the existence of call detail records. It was the ludicrous claim they weren’t listening to the call itself.
And it turns out the department of justice mistakenly sent the transcript of them doing EXACTLY that.
Aren’t you even a little embarrassed by your own stupidity?
Comment by jharp — 7/3/2008 @ 8:06 pm