Think this latest report will stop the screeching about warrantless electronic data-mining (a better definition of the activity than “wiretaps”) against foreign agents (not “innocent American citizens") by the National Security Agency (NSA)?
I don't either.
In the midst of the 9/11 Commission hearings, I seem to recall a hue and cry about the lack of protection bestowed upon Americans by the Bush Administration at the time of the 9/11 attacks. Now the problem, as critics of the NSA program in question would have it, is how the Bush Administration chooses to protect us. Everything that this administration does is "wrong": it either gives too much protection from jihadis or not enough. Whatever.
I would never lament the creation of the Internet(s), as I still believe that it has done more good than harm. For me, personally, friends--and employment--exist in my life that wouldn't have existed without the Internet and I am thankful for it all. But everything has its drawbacks and the Internet’s drawback is this: some of its users. Those users—and I’m not discounting myself—have access to just enough information to make them dangerous feed into their prejudices. Thus does data-mining of electronic surveillance using keywords to clue NSA intelligence collectors in to the terror plans of enemy agents of the US become “wiretapping of innocent American citizens.” Thus does the NSA stand accused in some public-opinion quarters of violating the Foreign Intelligence Surveillance Act of 1978 (FISA), in spite of all of the objective definitions and explanations contained therein. And, in spite of the stated purpose and the actions of the NSA, which existed and were conducted long before the first inauguration of this President Bush, the agency now stands accused of “violating civil liberties” under the behest of the same Bush Administration, which, simultaneously, “isn’t really protecting Americans.”
(The can’t-win tactics of the BDS-sufferers are enough to bring out one’s innate anti-social nature, which, however, are buffered greatly by the command to love one’s neighbor as one does herself.)
As we know well by now, information can be easily distorted and be halfway around the globe in seconds before a correction or a retraction is issued. In the case of the Big Media and some of our politicians, I suspect that they well know this. Even as those of us who hold and have held security clearances continue to smoulder in outrage at the leaking of such highly classified material as the existence of this classified NSA program, it is, mostly, an anger of impotence. Those who leaked and those who facilitated the leak have already done irreparable damage to our national security. The bell cannot be unrung.
Information is a wonderful thing to have and use, but even my BDS-suffering great-aunt acknowledges that we don’t need to know everything about what our government is doing behind the scenes. That ‘everything’ most definitely includes the intricacies of our plans to keep terrorists from committing another 9/11 or something worse. Yes, abuses could happen with the NSA program; that’s why it is overseen by all three of the branches of government. Do you not trust them? Then vote the executive and legislative branches out and hope for the best. Here’s hoping for all of us that, at some point, that those new ones voted in are able to put forward a better plan to protect us from “[al-Qaida operations…] being prepared” that we will see in our “homeland very soon.” And if you hate our present government enough to distort what it is doing to keep another 9/11 from happening--if you hate the "Bushies" more than those who would see us dead or converted by an aeronautical, biological, chemical or nuclear “sword,” then you have become the enemy of the survival of Americans. (That goes for you, too, Harry B.)
This year’s State of the Union address should be quite interesting.
(Thanks to Confederate Yankee, who notes thusly of the document contained in the Raw Story article:
The document cites copious case law, the President's inherent Constitutional authority under Article II, and a FISA exemption granted by the Authorization for Use of Military Force (AUMF).Yes. But, noting the precise language of FISA, I don’t think it is.)It also makes the argument that if FISA is shown to conflict with the President's Article II Powers, then FISA is unconstitutional.
Finally, a post that I disagree with, I was getting worried ;-)
Hate to be too nit-picky, but this is a Justice Department (an Executive Agency) presenting the legal underpinning for these searches--i.e., it's an unsigned memo by someone who works for the President. Perhaps someone on this board more familiar with the way the Justice Dep't works can explain what legal significance the memo has--is it the same as a prosecutor saying no law has been broken? Or is this an "advice"-type memo written for the President to cover his #**? I honestly have no idea. I have a friend who works for the DOJ as a lawyer--I'll ask him and see what it means.
A couple of observations:
1. I find it hard to believe that Congress's authorization for the use of force gave Bush the authority to violate FISA--and I haven't heard many (if any) congressman say they thought this was within the AUF authority. I think the administration should propose that Congress grant him this authority if that is the case.
2. You say that the NSA spying program has the oversight of all three branches. How? Isn't the main point of contention that (i) the Court's do not need approve a warrant and (ii) Congress cannot pass a law against this b/c it conflicts with the President's Article II powers. Who is overseeing this then?
That lack of oversight is what disturbs me. Despite my dislike of Bush, I really do believe Bush is in fact using this power to protect us, but once the precedent is set, we may not get so lucky with the next President. And for Steve, assuming your Gore/Russian mob theories are true, would you want President Gore to have these expansive Article II powers?
Also, it seems that lack of information was not really a 9/11 cause, it was poor agency communication and lack of data processing.
Posted by: Justin | January 20, 2006 at 01:18 PM
Justin, it's a statement of basis, an explanation of the admin's reasoning. RE: your #1--read FISA. The admin's argument (not making it, noting it) is that the exception language in FISA authorizes statutory exemptions, and that they are operating under such via the statutory authority of the AUMF's. IOW, they say that Congress has already granted that authority. Unless and until Congress specifically ungrants it, seems like a substantive "safe haven" argument.
RE: your #2--that's what the blog chatter and theoretical debate has largely been, but it's not the argument the admin has used. Call it the "fallback." But no one really wants to address that--both Congress and the executive are more comfortable leaving the gray areas gray, as they have for 200+ years.
I haven't had time to go through the whole thing, but it looked to me like the admin is asserting that Congress granted the statutory exemption broadly through the AUMF's, but the implementation of that statutory AUMF authority is the Article II perogative of the executive. Which broadly follows the enumerated powers principle without actually stepping into the "powers and authorities" dogfight arena. How the USSC would view that argument is a different debate. No one really seems anxious to engage that angle for fear of establishing limiting precedents.
As far as legal signicance, my impression is that the paper is the executive's explanation of their reasoning. Congress can accept it, reject it, or let it lie, but it's not a document subject to judicial adjudication. The judiciary addresses specific cases, not broad hypotheticals. If Congress disagrees and wants to do something about it, they have the blunt instruments of revoking the claimed statutory authority by revoking the AUMF's, limiting it out by further statutory "clarification" of the AUMF's, defunding the operation via their budgetary authority, or impeaching the executive.
Don't hold your breath.
Posted by: Tully | January 20, 2006 at 02:25 PM
Tully, thanks for the response. I'm going to read the DOJ doc more closely this weekiend, but I'm really having trouble with the AUMF being a statutory basis for the searches, which at first blush borders on absurd. I'm sure it will make more sense after I read the memo however.
True, Congress could "ungrant" the authority, which would make for an interesting Article II/legislative Congressional showdown. It would be very good drama, but maybe not good for the country right now.
Posted by: Justin | January 20, 2006 at 03:05 PM
Not all that absurd at all, really. Congressional "intent" counts for nothing in that regard. The wording of the two AUMF's was very broad indeed. You could drive a truck through 'em. And they're not doing anything different (in theory, anyway, accounting for tech changes) than every administration before them.
A revocation of the AUMF's is extremely unlikely. If there is a Congressional response to limit the usage of authority, it would almost certainly be by a specific statutory limitation, worded to apply directly to the offered interpretation of the AUMF argument. As I said, it's not a matter for adjudication--not in the hypothetical.
But I suspect they'll hold "private" hearings, then do nothing other than bloviate unless specific (Nixonian) abuses against innocents or political enemies can be found. Defending the rights of terrorists is a MAJOR political loser of an issue.
Posted by: Tully | January 20, 2006 at 06:19 PM
I wanted to read the DOJ memo before I responded--but, I just wanted to say that from a statutory interpretation point of view, congressional intent is very important here. When a statute is incredibly vague, court's will look to intent. By the administration's logic, ANYTHING the President does in the name of fighting terror has been authorized by the statute, and that is clearly not the case, and no court would give such a wide reading of the statute, as the statute would be unconstitutional under that reading.
Posted by: Justin | January 23, 2006 at 08:48 AM
But the courts won't be looking at it, Justin, which is what makes intent irrelevant. Congress will be looking at it. If they believe it overly vague, they have the power to clarify it at will. In any case, when a statute is overly vague, the courts do not generally attempt to enforce it by reading tea leaves to make it more specific. That's "legislating from the bench."
By the administration's logic, ANYTHING the President does in the name of fighting terror has been authorized by the statute
Disagree, Justin. The argument is that anything that is a normal power of the executive in wartime falls under it, not that anything at all does. Signals intel is a normal power of the executive in war or peace, and they're not pushing the boundaries much at all. Certainly not remotely as far as other wartime presidents, such as FDR or Truman or Johnson. And FISA contains statutory language that not only allows the interpretation, but is tough to explain otherwise.
The "remedy" if any is in the hands of Congress, not the courts. The courts do not become involved until there are specific cases on which to decide. The judiciary does not rule on vacuous hypotheticals. Congress can't pass the buck to the judiciary without cases in hand.
Posted by: Tully | January 23, 2006 at 12:37 PM
Tully,
If the Administration is claiming authorization for an action under a vaguely-worded act of Congress that would otherwise be illegal (Article II considerations aside) which Congress does not clarify, it would be the courts to decide what Congress meant. This is not legislating from the bench, it is what courts have been doing since the Consitution was ratified. A court would decide that either (i) the President's interpration is correct or (ii) whomever has brought a suit/criminal action against the administration's interpretation is correct. Why would a court deciding #i not be legislating from the bench while #ii would be? And, as citizens, what other way are we to determine what a statute means if Congress refuses to clarify (I would hope that they would, but the political climate is too poisonous now to think that that would happen).
The argument is that anything that is a normal power of the executive in wartime falls under it, not that anything at all does. Signals intel is a normal power of the executive in war or peace, and they're not pushing the boundaries much at all. Certainly not remotely as far as other wartime presidents, such as FDR or Truman or Johnson.
But I think that's a bit circular. The entire argument that has been made against the President is that warrantless searches in violation of FISA are not a normal war-tme power. It doesn't take a very crafty lawyer to rapidly expand the arguable list of normal war time powers anyway.
And FISA contains statutory language that not only allows the interpretation, but is tough to explain otherwise.
Where (serious question, I'm not sure what you mean)?
Again, my main problem with what the Administration has (maybe) been doing is not what they have been doing per se, but rather that they should have had Congress change FISA to allow it, rather than rely on war powers arguments or claim authorization under AUMF. This may seem like a small point, but I think establishing these precedents means something, and that the Executive branch has become too powerful since Roosevelt and should be restrained. This isn't about Bush, but also future Presidents--like President Hillary Clinton (-;
Posted by: Justin | January 23, 2006 at 05:02 PM
1809(a)1. "...except as authorized by statute." IOW, not a violation of the law if otherwise authorized by statute. The language is such that it most assuredly encompasses statutes other than FISA.
Once again, it's not a case for the courts unless there is a specific issue before them relating to a specific case. Unless such a case is offered, there's nothing for the courts to rule on, and it remains in the realm of politics. The case law makes it clear that the authority is not one of gathering criminal evidence, but one of Article II national security functions. It doesn't fall under the rubric of criminal law unless it's used in a criminal case, and even there we start running into the exceptions. Such as exigent circumstances, and "incidental acquisition."
Very muddy area. One that no one's really been willing to delineate. Traditionally, Congress and the executive agree to disagree and pay diplomatic deference to each other. As in Jefferson's providing his correspondance with Burr "voluntarily," while maintaining that executive privilege did not require him to do so--a tradition that continues today. Or every president since the War Powers Act submitting their requests, certifications, and compliances to Congress as a "courtesy," while explicitly rejecting that they were required to do so.
If Congress wants to reject the claim they can, simply by (veto-proof or un-vetoed) statute. The courts will not address it without a specific case in hand. Reent cases suggest that the Supreme Court is not of the same opinion as Congress as regards the omnipotence of Congress in regulating Article II powers.
It's nice to think that the executive could simply ask Congress to address it by legislation, and it was apparently considered and rejected. Congressional leaders informed the admin that it was unlikely to occur, and to even ask would in itself set precedent. When it comes to that muddy gray area, precedent is assiduously avoided by all parties. It would narrow that area they love to play in.
Posted by: Tully | January 23, 2006 at 08:20 PM
Tully, I mostly agree. I am not suggesting that a court could take up the statute absent a specific case. All I am saying is that if the Administration is claiming authorization under the AUMF, because the AUMF is vaguely worded, Congress's intent matters. I think that is a pretty settled rule of statutory interpretation--people following a statute must interpret it as well.
every president since the War Powers Act submitting their requests, certifications, and compliances to Congress as a "courtesy," while explicitly rejecting that they were required to do so
Right (although I don't know about the explicitely rejecting part). They have done this to avoid an unnecessary Constitutional showdown between Articles I and II. Bush should do this too. There is no national security reason for proceeding in this way, so he should submit the question to Congress, or get a warrant where required.
Still haven't read the DOJ memo. I'm interested in its reasoning, and it may change my mind on this point.
Posted by: Justin | January 24, 2006 at 07:50 AM
They've been explicit. Always labelled as a "courtesy notification," even when it was really a request.
I agree that Congress's intent matters to Congress, but not that any court decision is needed to clear it up or interpret it. Congress has all the tools they need to easily clear up that "intent" if the admin's interpretation is too fuzzy to suit them. They handed over a wide-open authorization. If they wish to narrow it, they can. They undoubtedly have the power to reject the offered brief and its reasoning. But they won't. They don't want that dogfight either.
If they fail to act to narrow their own intent, they should shut up and quit posturing, not whine about it. They know it. The White House knows it. The WH has been dropping hints that if Congress wants to clear up the legality by new legislation, they should just go right ahead. That's an open invitation to bring it on--and Congress will give it a miss, I bet. They can all read the polls.
There is no national security reason for proceeding in this way...
I can think of one off the top of my head. The need for speed. The technology is such that intel can be acted on in minutes--and FISA warrant applications can take days to weeks. Even retroactive ones. Then they have to be heard, reviewed, the hoops jumped through, etc. And the requirements are such that you often have to "prove" negatives to satisfy the regs for approval.
For more on the actual operations invovled, here's Hayden's speech the other day on the disputed NSA activities and how they're structured, as best as one can talk about a classified high-tech op.
Posted by: Tully | January 25, 2006 at 07:16 AM
Tully, under your reasoning, per the AUMF the President can violate any statute if he believes it is necessary to conduct the war. Why just FISA? Are you comfortable with that?
Also, I'm not even sure the Administration really though Congress authorized this under the AUMF, and that the AUMF is an after-the-fact rationalization.
12/19/05 Gonzales quote from a press briefing:
This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible.
http://www.whitehouse.gov/news/releases/2005/12/20051219-1.html
How can he maintain that Congress would not authorize an amendment to FISA and that they are letting the President get around FISA with the AUMF. And notice he doesn't mention the AUMF here--he is making vague allusions to Congress authorizing the surveillance without saying what those authorizations were (I think he is saying Congressional briefings = authorization, but I'm not sure).
Here is a good article (written by a conservative in the Washington Times) about the dangers of the President's stance:
http://www.washtimes.com/commentary/bfein.htm
As for Hayden's speech, he is part of the litany of contradictory assertions by the administration. The argument in the pro-Bush camp have been making is that this is just "data mining" (see, e.g., the first line of Baldilocks' post). But Hayden says it wasn't data mining, but focused searches:
Let me talk for a few minutes also about what this program is not. It is not a driftnet over Dearborn or Lackawanna or Freemont grabbing conversations that we then sort out by these alleged keyword searches or data-mining tools or other devices that so-called experts keep talking about. . . . This is targeted and focused.
Posted by: Justin | January 25, 2006 at 10:51 AM
Both of you (Justin and Tully) have beautifully reasoned arguments on theis subject and if the country worked the ways in which both of you present it, it would be awesome and people wouldn't try to attempt what Bush and others have been doing here.
They wouldn't need to too because common sense would be in order here. Congress would decide to set the system up and monitor it in an intelligent manner and the courts would handle any areas where some clarification needed to be provided.
Unfortunately we live in the USA circa 2006 and Congress (and the courts!) are populated with three types of people: morons who got where they are by virtue of electoral gravity (the scum floated to the surface), blind idealogues whose grasp on reality has been lost so long ago they are still trying to legislate the horse to be hitched BEHIND the buggy so it can't be whipped, and viscous politicos who do whatever it takes to get money, votes, and attention.
Because of this our real leaders have to create and work thru a climate of grey areas where most of their efforts (and most of the Federal budget) are spent trying to dodge the actions of one or more of the three types of characters listed above just to accomplish what it takes to keep the rest of us alive and the country working.
Posted by: babylonandon | January 25, 2006 at 11:06 AM
Tully, under your reasoning, per the AUMF the President can violate any statute if he believes it is necessary to conduct the war. Why just FISA?
Absolutely 100% WRONG, Justin. I have never so reasoned, and never so claimed. FISA contains a statutory exemption clause, in 1809(a)1. FISA says you're not guilty of a FISA violation if another statute authorizes your actions. The AUMF's authorize by statute the use of all normal war powers of the executive. Signals intel is a normal war power of the executive. That's pretty darn narrow, and comes nowhere near your statement of implied omnipotence.
RE: talks with Congress--side issue of politics, not issue substance, but worth a look for poli-gamers and tea-leaf readers: lessee, they ask Congresscritters (maybe--unverified conversations, no open second source, no details) about clarifications. Congresscritters don't want to clarify. WH goes ahead with needed program, relying on established but contentious authorities. Congresscritters whine that that's not what they meant...and DO NOTHING.
About as clear a case of responsibility-dodging as there ever is. But the bad for that is not the WH's. It goes to Congress, for sheer weeniehood. Congress can clear it up anytime they wish. The WH has practically begged them to. Don't hold your breath. It's a trap to get legislators to either approve the WH actions completely, or take a stand against that can be seen as being in favor of the "rights" of terrorists. In an election year. During wartime. In the meantime the WH will continue to let NSA and DoD use a valuable tool in the manner approved.
RE: "litany of contradictory assertions." Bull. You're grasping at semantic straws. Data-mining of specific types of comunications leads to specific targeting of subjects. If it didn't there would be no point. In this case, the type of data being mined is cross-border and out-of-border electronic communications. Hayden was saying as clear as a bell that the program itself is focused on just that. He also goes to lengths to describe what happens to accidental intercepts that don't meet the cross-border or out-of-borders specs--and it matches up exactly with the legal requirements in FISA for handling accidental intercepts.
So let's be clear on what we're discussing. We're discussing data-mining of cross-border and out-of-border communications for purposes of national security and military intel, with subsequent targeting and surveillance of the resulting suspects. With said suspects being "passed on" to domestic law-enforcement for warrant issuance and subsequent surveillance when and if any domestic targets are positively identified as "U.S. persons" as defined in FISA.
What we're NOT talking about is blanket data-mining of purely domestic communications. Or data-mining for internal political purposes ala Johnson or Nixon or FDR or J. Edgar. Which is what the PDS critics are trying to paint it as.
Posted by: Tully | January 25, 2006 at 12:14 PM
OK, I'm not going to get into a semantic discussion over the (in my view) shifting explanations of the Administrations actions.
I agree with your analysis re: Congress, sort of. The President has never asked Congress for this authority--and when Congress (Mike Dewine) proposed loosening the FISA warrant requirements, the administration opposed it.
http://www.fas.org/irp/congress/2002_cr/s2659.html
Opposed by James Baker (not "the" James Baker):
http://www.fas.org/irp/congress/2002_hr/073102baker.html
All I am focused on is whether the Administration violated FISA, and whether the AUMF authorized it. As for the statutory exception language, I don't think it means as much as you are giving it, because every statute implicitly contains the same exception--that this statute is law until another statute says something different. I spent a summer in DC (poorly) drafting legislation, and that type of statutory exception language (or something close to it) is pretty common. It just means that if two statutes conflict, the language with the exception will be the one that gives. If the AUMF had said something like "Notwithstanding the requirements of FISA, . . .", then I would see the point.
Plus, I would defend what I think is the logical conclusion of your reading of the AUMF--the statute says:
[t]hat the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
Under your reading, "appropriate force" creates a statutory exception for any military/intel-related statute that has an exception clause (e.g., FISA). But why doesn't it create an exception for every statute that would impede the President's fighting the WOT? I just don't get what about this language would make it only apply to a statute that has the FISA language. Under what reading of the statute does "appropriate force" mean the power to over-ride any statute that specifically has an "except"-type clause, but not those that do not?
And the issue is not at all that the President is using these powers for political purposes, but that he is dangerously extending the power of the executive branch in a perpetual war. Even if you completely trust Bush etc., this should be troubling because we do not know who the next President will be yet--well, I do, it's Hillary Clinton (-;
War powers are very broad, and, human nature being what it is, people tend to love power and want more of it.
Posted by: Justin | January 26, 2006 at 08:49 AM
Here's more on the Administration's inability to keep its story straight:
http://www.realcities.com/mld/krwashington/13712090/13712090.htm
Posted by: Justin | January 26, 2006 at 11:21 AM
Justin, to start with, you need to read the admin brief if you want their reasoning. I'm not Al Gonzalez. Do the homework. In the meantime, please quit beating the dead horse of trying to claim that the admin is seizing some omnipotent power to over-ride every statute on the books. If you're actually concerned about the direct application re: FISA, as you say you are, please quit conflating so far beyond it into hyperbolic "slippery slope" arguments and tea-leaf-reading side issues. We're talking about a very specific thing in a very specific context.
And the phrase is "...all necessary and appropriate force..." You keep leaving those first two words out, and they do matter. Also note the specific scope of the authorization. "...in order to prevent any future acts of international terrorism against the United States..."
Under your reading, "appropriate force" creates a statutory exception for any military/intel-related statute that has an exception clause (e.g., FISA).
Could well be, IF those statutes have exceptions clauses and fall into the specific scope of the AUMF, and involve the use of "necessary and appropriate force." A statutory exception clause is there for just that reason--the possibility of conflicting statutory authorities. It has no other reason to exist. But the claim has been advanced in this instance only as one part of one "authorities" assertion inside of one small part of one statute. You can argue that the "intent" of Congress did not include cross-border surveillance of enemy communications in the phrase "all necessary and appropriate force...". (Tough to do so with a straight face, as it's about as traditional a war power as you can get.) Have to do a full-scale survey of all the Congresscritters who voted on it. And as I keep pointing out, Congress can clarify their "intent" at any time.
See also the related sections of the Patrot Act that expanded FISA authorities, including warrantless authorities. Once again we come back to the obvious. To say that the admin has "broken the law" you have to show which law, and how and when it was broken by specific cases. So far that hasn't happened. And that's before you reach any conflicting statutes or Constitutional "authorities and powers" issues or arguments.
Posted by: Tully | January 26, 2006 at 11:48 AM
Tully, I'm not sure why you think that I am making a big leap with my slippery slope arguments. The precedent and the reasoning matter here, because if accepted, that reasoning can be applied to other cases in the future. I don't want you to misunderstand my argument--I think that President should have this power (with appropriate checks). My problem is all about precedent-this power should be explicitely granted by Congress-I still haven't heard a compelling reason about why the AUMF applies only to military/intel statutes with these exemptions, even if you add "necessary" (which language I think cuts against your argument, because "necessary" serves to limit the word "force"). Read the DOJ memo, and try to use the same reasoning in the memo for say, allowing the Executive to censor news stories, or to conduct warrantless searches on the streets of New York--it's not a very hard leap to make
(And remember, this is not the only claim by the Administration that its powers should be expanded in war time--Bush has, among other things, claimed that the Administration has the the authority to indefinitely detain US citizens in the the name of the WOT.)
To say that the admin has "broken the law" you have to show which law, and how and when it was broken by specific cases.
The administration has admitted that it violated (maybe wrong word) FISA. I'm not sure if they "broke" the law, because I think the Article II argument is complicated, and I haven't sorted it out yet, and there may be other statutory bases or precedents for their action. I just know that the AUMF justification still seems absurd to me, even after reading the DOJ memo.
statutory exception clause is there for just that reason--the possibility of conflicting statutory authorities. It has no other reason to exist.
Usually, if not always, for a statutory exception to be triggered, there must be an explicit statute contradicting it. The Admnistration is making an argument that a tax laywer would make trying to get through some IRS loophole.
Thanks for the engaging discussion. I think I've said all I can on this point without repeating myself even more.
Posted by: Justin | January 26, 2006 at 01:33 PM
The administration has admitted that it violated (maybe wrong word) FISA.
Definitely wrong word, as "violated" means the same thing as admitting to breaking the law. What they say is the opposite--that the intercept program has not "violated" FISA (for many assorted reasons). And I see that without case-specific details, it's impossible to say that the law has been violated.
Stripping the "hype" from "hyperbole" is my second-favorite hobby. Now, if only I could figure out what an rbole is.
Posted by: Tully | January 26, 2006 at 02:29 PM
Poor word choice--what I meant is that the administration has admitted that it has committed acts which would be in violation of the statute if it were not for the exceptions to the statute (be it the AUMF or Article II or whatever). The actions are not in dispute--the applicability of the exceptions to the statute, or whether the President's Constitutional powers over-ride the statute, are in dispute.
Isn't rbole a Scandanavian candy bar? It sounds like it should be.
Posted by: Justin | January 26, 2006 at 03:10 PM
I think even the actions are in dispute. There's too many required elements in the technical language of FISA to ascertain criminality in any given instance without specific case details. And we all know where the devil is....
I think an rbole is a place where you sell or grow medicinal plants.
Posted by: Tully | January 27, 2006 at 04:14 AM