Even Fox News legal analyst Andrew Napolitano says Bush and the GOP are wrong on surveillance.
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When You Lose Fox News...
18 Feb 2008 03:37 pm
Comments (43)
Actually, Napolitano is a pretty principled libertarian. He's been anti-Bush since the beginning, or at least since shortly after 9/11.
There was a story recently where he had some Olbermann-like rant against Bush, too.
I think the Bush Administration is likely wrong on this issue, but if Napolitano's interpretation of the words "the people", or "person" are accepted, it would seem as if intercepting Japanese Imperial or German military communication in WWII was illegal, since no warrant was obtained. I'd like to hear his detailed explanation of why the Commander in Chief needs to obtain permission from the judicial branch to intercept the communication of foreign enemies that Congress has declared war on.
Napolitano has always been anti-Bush, anti-warrantless wiretaps. This isn't anything new, Matt.
Will Allen wonders: "I think the Bush Administration is likely wrong on this issue, but if Napolitano's interpretation of the words "the people", or "person" are accepted, it would seem as if intercepting Japanese Imperial or German military communication in WWII was illegal, since no warrant was obtained."
You already have it. Or did you miss the significance of "within the US"?
To further explore Napolitano's reading of the words, "the people", or the "person". they would seem to allow an agent of the United States to kill a foreign national that Congress has declared war on, but not listen to his phone calls without a warrant, or possibly that the United States can wage war, as long as agents of the United States doesn't harm anyone, absent approval by the judiciary .
This seems problematic.
As others have said, Napolitano has been talking about this stuff for years.
He was on The Colbert Report a week or two ago talking about his book "A Nation Of Sheep." And he called Stephen Bill in a hilarious slip: http://www.comedycentral.com/motherload/player.jhtml?ml_video=149059
Moe, Napolitano writes...
"Those who believe the Constitution means what it says should tremble at every effort to weaken any of its protections. The Constitution protects all "persons" and all "people" implicated by government behavior. So the government should be required, as it was until FISA, to obtain a 4th Amendment warrant to conduct surveillance of anyone, American or not, in the U.S. or not."
Thus, Napolitano supposes that the American military can shoot a Japanese national in the head while fighting battles on Tarawa, but can't eavesdrop on his radio transmission, absent a warrant. Or perhaps he also means that every hostile act taken by the American military while fighting the Japanese soldiers first required a warrant.
Well, that certainly is, uh, a unique way of looking at things.
That dude's hairline is the lowest on TV.
Will Allen,
Then how about we make the law so that we can spy on people in another country without a warrant if there is a declared war against with country?
I, personally, don't want our government spying on anyone and everyone outside of our borders, or within our borders who happens to be from another country. It smells wrong. Would you be okay knowing that a foreign government is spying on you?
Will Allen quotes: ""Those who believe the Constitution means what it says should tremble at every effort to weaken any of its protections. The Constitution protects all "persons" and all "people" implicated by government behavior. So the government should be required, as it was until FISA, to obtain a 4th Amendment warrant to conduct surveillance of anyone, American or not, in the U.S. or not.""
I have to think he knows better, and would more clearly say that at least one of the parties has to be American or on American soil. There was never any interpretation of the Constitution that would require a warrant in the German/Japanese examples you gave above.
Well, I do wish Congress would get away from their nebulous authorizations of force, and go back to clear declarations of war. It would seem to me that any communication involving a foreign
entity that Congress has declared war on is fair game for interception, upon the orders of the Commander in Chief, no matter who that party is communicating with, or what country(ies) the communication is taking place in.
Surely if the government is authorized to kill such a party while they are on the phone, the government is authorized to listen to the phone call, no matter who the party is communicating with, or what country(ies) the call is taking place from. To say oterwise is to really conjure some bizarre situations in a declared war, like a foreign spy who has smuggled himself into this country being able to conduct communications unmonitored if a warrant has not yet been obtained.
Whether a U.S. citizen could have such proof used against him in a subsequent legal proceeding is a
much more complicated question, but I'll note that people who excoriate George W. Bush while worshipping the memory of FDR often overlook FDR's behavior in having U.S. citizens executed in a time of war, via military tribunals, not criminal trials, and after FDR quietly intimidated the Supreme Court into denying the appeal of the condemned.
but I'll note that people who excoriate George W. Bush while worshipping the memory of FDR
Don't make me yawn, troll. Who are these Bush-hating FDR worshippers who overlook his misdeeds?
Oh right, there aren't any, except in your sadly derivative imagination.
Well, then, Moe, it would be preferable if supposedly educated people didn't write nonsensically. Even your interpretation seems inadequate, however, in that it would have prevented the American military from deciphering messages from Nazi command in Germany, to the German saboteurs who had become naturalized U.S. citizens before going back to the Fatherland during the '30s, and then coming back surreptitiously to the U.S. during the conflict to wage war on the U.S.. It seems to me that a declaration of war by Congress expands signficantly the power of the Commander in Chief to monitor any and all communications involving the enemy. Again, if the government can kill the enemy without a warrant, surely the government can listen to the enemy's communication without a warrant.
Well, Anderson-Troll, I suppose that would be people who reserve the most harsh possible language for this President in regards to abusing civil liberties, who also maintain that FDR was a terrific President in regards to civil liberties. I've conversed with many such people. Hell, a very large percentage of them weren't even aware that FDR had U.S. citizens accused of spying executed without benefit of a criminal trial, after intimidating the Supreme Court into denying the condemned's appeal.
Will Allen uses Bush-lies and pretends they make sense: "Even your interpretation seems inadequate, however, in that it would have prevented the American military from deciphering messages from Nazi command in Germany, to the German saboteurs who had become naturalized U.S. citizens before going back to the Fatherland during the '30s, and then coming back surreptitiously to the U.S. during the conflict to wage war on the U.S.. It seems to me that a declaration of war by Congress expands signficantly the power of the Commander in Chief to monitor any and all communications involving the enemy. Again, if the government can kill the enemy without a warrant, surely the government can listen to the enemy's communication without a warrant."
Or they could just get the warrant. Which presents no hardship at all.
But Dumbya and the Bushpigs are too lazy or too stupid or too corrupt to bother following the law. You can make excuses for them. I won't bother.
It presents a hardship if you just discovered his means of communicating, and he is engaged in communication at that moment, moe. Why would you suppose that passing up on an opportunity to decipher such a communination would not be a hardship? Do you have some sort of paranormal ability to know that he will be sending the communication again, after you have obtained a warrant? Please explain how the enemy can be legally killed without a warrant, but cannot have his communication listened to without a warrant.
"Lets start a pool on how long it takes Andrew Napolitano to get fired!"
He's been against the Bush surveillance program from the beginning, against the Patriot Act, too. He's a standard Cato sort of guy.
He went on O'Reilly and explained to Bill-O that the Patriot Act is unconstitutional. Bill basically said, "Well, okay, but these liberal groups are really blowing it out of proportion." Which shows that O'Reilly's political worldview is mainly founded upon how much he hates the ACLU and other liberals.
Will Allen writes: "It presents a hardship if you just discovered his means of communicating, and he is engaged in communication at that moment, moe. Why would you suppose that passing up on an opportunity to decipher such a communination would not be a hardship? Do you have some sort of paranormal ability to know that he will be sending the communication again, after you have obtained a warrant? Please explain how the enemy can be legally killed without a warrant, but cannot have his communication listened to without a warrant."
Can you possibly be this stupid? You'd use the information and get a warrant for future communications. These warrants aren't limited to one conversation. Sure, in some corner of the universe you might not be able to use that first conversation to convict him in court, but you'd still (it being a war and all) find some way to fuck him up. And if that first magical communication had hard information on an actual operation, nothing would stop you from using it to shut it down.
The Bushpigs don't want to avoid getting a warrant under unique circumstances, they never want to have to get them at all. Why do you want to grease up the Constitution for them and keep it bent over in perpetuity? I realize the only amendment cons care about is the 2nd, but you really should be ashamed of your blind obedience to these cretins.
Colatina writes: "He went on O'Reilly and explained to Bill-O that the Patriot Act is unconstitutional. Bill basically said, "Well, okay, but these liberal groups are really blowing it out of proportion." Which shows that O'Reilly's political worldview is mainly founded upon how much he hates the ACLU and other liberals."
A lot of movement cons despise the Constitution and all of its pesky "rights." A large percentage of the Federalist Society wackaloons want to convene a new constitutional convention and realign the whole civil rights framework in their own far-right Christianist image. These are not sane people.
Moe, in your idiocy, you have been unclear as to whether you intend to make interception absent a warrant allowable or not. You also have been too stupid to explain how it is permissable to kill the enemy without a warrant, but not permissable to listen to his communications without a warrant. The FISA bill has not simply been about the admissability of evidence; it has been about whether an initial interception can take place without a warrant. It seems as if that by your standards, which you are too much of a cretin to explain clearly, you intend to prevent the interception of communication by parties the Congress of the United States has declared war on, absent a warrant, if the enemy has been successful in turning a U.S. citizen on American soil. Even for you, this is a remarkably stupid way to wage war. Goodness, by these incredibly stupid standards, Stonewall Jackson's intercepted letters could not have been read immediately; no warrant!
Like I said, the admissability of evidence in a criminal court especially for a U.S. citizen, is a different matter from whether the interception can take place for intelligence gathering purposes. The fact that your are too stupidly engaged in the sort of imbecelic rhetoric which leads you to employ words more appropriate to a fifth grade child, and not a particularly bright one at that, is unfortunate, although not surprising.
Will Allen again: "Moe, in your idiocy, you have been unclear as to whether you intend to make interception absent a warrant allowable or not. You also have been too stupid to explain how it is permissable to kill the enemy without a warrant, but not permissable to listen to his communications without a warrant."
Actually, dumbass, when has a warrant ever been required to kill someone during combat or a police action? The cops who killed Amadou Diallo didn't need no stinking warrant - they just needed to make up a bullshit story to cover their asses.
You confuse "permissible to listen" with "making that tape admissible in a court of law." An agency stumbling on a communication can listen away - the question is can they later use that 1st listen to obtain a conviction.
The only idiot here is you. The only confusion here is yours. You want agencies to be able to listen to ALL conversations, not just ones made by enemies. You want the government to be able to listen to any conversation at any time and you're actually stupid enough to trust that that power will never be abused. That is not acceptable. The "if you don't have anything to hide you won't mind" meme you anti-constitution freaks are pushing shows how un-American you are.
But let's say you get your way. I hope you're one of the first victims of the New Order - let's see some agents kick in your door and shoot your nuts off because they think you're the enemy. Then we'd see how quickly you'd change your tiny little fascist mind.
Will Allen again: "The fact that your are too stupidly engaged in the sort of imbecelic rhetoric which leads you to employ words more appropriate to a fifth grade child, and not a particularly bright one at that, is unfortunate, although not surprising."
Ah, the gift that keeps on giving! Not much beats having my intelligence derided by a nitwit who stumbles every time he tries to write a complex sentence.
Moe, you have contradicted yourself. If your only contention is that intercepted communications can't be introduced into criminal court absent a warrant, then it makes no sense for you to write....
"The only idiot here is you. The only confusion here is yours. You want agencies to be able to listen to ALL conversations, not just ones made by enemies."
.....given that that there is no mention in that paragraph regarding using such conversations in court. Just as you could not grasp what Naplolitano wrote, you now cannot grasp what you wrote yourself. How dumb are you?
Very dumb apparently, if you really think the issue before the courts and debated in Congress has simply been whether such evidence is admissable in court. Qwest Communications, idiot, did not cooperate with the data gathering that other telcoms did, not because they thought subsequently obtained communications would not be admissable in court, but rather that the obtaining the information to begin with was illegal. In 2006, as reported by MSNBC.......
"The Justice Department launched an appeal within hours of a federal judge’s ruling that, for the first time, struck down President Bush’s warrantless wiretapping program as an unconstitutional infringement on the right to privacy and free speech.
The judge on Thursday ordered an immediate halt to the program, but the government said it would request a stay during the appeals process, arguing that the secret surveillance program is crucial to stopping terrorists."
.... note, idiot, that the gathering of the data itself was initially ruled illegal. It was not merely ruled that the information gathered is inadmissable in Federal Criminal Court.
You don't have the slightest idea of what you are talking about, do you?
Will Allen again: ".... note, idiot, that the gathering of the data itself was initially ruled illegal. It was not merely ruled that the information gathered is inadmissable in Federal Criminal Court.
You don't have the slightest idea of what you are talking about, do you?"
Look, dipshit, you're muddying the waters by bringing up WW2, and trying to pretend that the Constitutional reality wasn't affected by FISA and subsequent laws. The actual discussion here centers around whether Dumbya's much desired extension (and attached telecom immunities) should be passed. You apparently think they should be. I don't - both because the Bushpigs can't be trusted and because they violate Constitutional standards.
You want no limits on presidential authority due to the never-ending War On Terra? I hope your wishes fail.
Okay, Moe, now that you dropped the idiotic notion that the debate centers on admissability of evidence in court (you are really are a dunce aren't you?), when in fact it centers on whether the data can be gathered in the first place, which renders ridiculous your previous contention that....
"An agency stumbling on a communication can listen away - the question is can they later use that 1st listen to obtain a conviction.
...we can now focus on further evidence of your fundamantal illiteracy. You really can't read better than the common five year old, can you? You write....
"You want no limits on presidential authority due to the never-ending War On Terra."
....despite the fact that I wrote this....
" It seems to me that a declaration of war by Congress expands signficantly the power of the Commander in Chief to monitor any and all communications involving the enemy"
...which clearly states that the limiting factor on presidential authority is controlled by Congress. Moe, you just may be the most illiterate person to ever post in this forum, and that is saying something. You really cannot fathom what the meaning of words are, can you? I mean, what happens within the vacuous spaces in your skull, which causes you to repeatedly read sentences as has having precisely the opposite meaning than what they actually do? I mean you did just that with regard to sentences Napolitano wrote, and with sentences that I wrote. Hell, you did it with sentences that YOU wrote! What the hell is wrong with you? Are you insane? Gone off your meds? When you try to order pancakes in a diner, do you get cornflakes instead? Is this a clue which indicates to you that your brain juuuuuusssssst may not be functioning in an optimum manner? Do tell!
"He went on O'Reilly and explained to Bill-O that the Patriot Act is unconstitutional. Bill basically said, "Well, okay, but these liberal groups are really blowing it out of proportion." Which shows that O'Reilly's political worldview is mainly founded upon how much he hates the ACLU and other liberals.
Posted by Colatina | February 18, 2008 9:18 PM"
Very true. It's like how he noted that the average liberal wasn't declaring War on Christmas (TM), but only lefty ACLU types. Just another case of a guy who is driven more by a daddy complex and resentment than anything. If he stopped showering and shaving, he would just be another crazy person ranting at a bus stop.
Actually, Napolitano is a pretty principled libertarian. He's been anti-Bush since the beginning, or at least since shortly after 9/11.
Posted by too many steves
He has been an enemy rights advocate since the patriot Act was signed, convinced the world would love us if we only gave Jihadi enemy more rights in court than we give our own soldiers.
The guy is convinced to is OK to bomb the Islamoids in caves, but not violate their privacy by listening to phone calls. Unless we know their name and have probable cause...
Will Allen,
Then how about we make the law so that we can spy on people in another country without a warrant if there is a declared war against with country?
I, personally, don't want our government spying on anyone and everyone outside of our borders, or within our borders who happens to be from another country. It smells wrong. Would you be okay knowing that a foreign government is spying on you?
Posted by ChrisWWW
Just about the most insipidly stupid post I've ever read.
In a war, when we are blowing the heads off Islamoids and trying to learn everything about them so American civilians and soldiers do not die from lack of intelligence....you claim despite the precedent of a dozen other wars that intercepting messages and electronic signals is "wrong" in time of declared war. And while killing may be ok, we should "pass a law" to make clear that it is now OK to listen to their phone call or search for them w/o warrant.
That is about as anal as it gets.
Do you imagine everything we do to fight an enemy and save US lives is covered by a specific civilian law other than the "wiretap" loss of enemy civil liberties?
soullite: "Lets start a pool on how long it takes Andrew Napolitano to get fired! I say a week."
No. Napolitano is a prepositioned hedge bet that is coming good. The question, as I've said before, is when Rupert Murdoch will dump the Talibans and suck up to the new masters.
There's a certain type of person who gets an erection (or gets wet) saying things like "in a time of war" and "Commander in Chief". And you can't really reason with that sort of person. There are just people who worship war, who deep in their psyche are glad that they can claim that they lived during one, and think of themselves as Orwell taking on the fascists and the communists.
As soon as I see posts or comments that overuse the terms "in a time of war" and "Commander in Chief", I have a pretty good idea I am dealing with such a person.
Dilan, as soon as I see someone who thinks one can discuss the constitutional issues pertaining to divisions of power among the United States' three branches of government, without using terms like "Congressional declaration or war", "in a time of war", or "Commander in Chief", well, I'm pretty sure I'm dealing with an imbecile.
Will:
1. I am no imbecile.
2. "We are at war" is not the argument-ender that advocates of executive power think it is. It is, of course, true that there is an operative Authorization to Use Military Force. However, it is also true that we are dealing with an amorphous adversary (notice, I did not use the question-begging "enemy"), on an amorphous "battlefield", with no objective means of determining when the state of "war" ends.
The result of this is that you can't resolve this by talking about actions of Lincoln or FDR in well-defined conflicts, even if we assume that they were legal under current constitutional standards.
3. Similarly, "Commander in Chief" is a vastly overused term. The Constitution is clear and explicit that the authority to raise, support, regulate, and otherwise govern the activities of the military is an Article I power, held by Congress. Whatever authority the President has is either within Congress' parameters or exists only where Congress hasn't acted. A military "commander", under the Constitution, is always subject to civilian authority; the President, in his role as Commander in Chief, is similarly subject to such authority. Further, the Constitution is quite clear that the President is bound by the laws passed by Congress-- he must take care that the laws be faithfully executed.
Thus, it isn't helpful to debates about these issues to babble on about "war" and repeatedly call the President "the Commander in Chief" rather than calling him the President. It simply serves a certain fetish that a certain type of person has for militarism and the glories associated with it.
4. In any event, the problem with the position of defenders of the Administration's surveillance programs is Congress exercised its Article I power with respect to foreign intelligence surveillance. And Congress specifically said that FISA is the exclusive means of conducting foreign intelligence surveillance within the United States. (Note, by the way, it has nothing to do with actual BATTLEFIELD surveillance of the type conducted by previous presidents during defined military conflicts.) If the President thought it was unconstitutional, he could have, of course, challenged the law in court. He would have lost (which is why he didn't do it), but he could have tried it.
He also could have gone back to Congress, which is what he did do on certain issues. As a result, he got FISA amended several times since 9/11.
What he was not permissible is what he did, to purport to use authority he does not have to simply ignore FISA and declare it unconstitutional without getting a court ruling.
5. A word about tone. I would suggest to you that a lot of us who disagree with you on this issue know quite a lot about what we are talking about. Calling very knowledgeable people "imbeciles" may make you feel good, but it only reflects badly on you.
I made my earlier comments about the way certain people deploy certain terms because I have been through this enough times that I know the pattern of many defenders of Bush Administration excesses in the fight against terrorism-- they just keep on repeating "war", "enemy", and "Commander in Chief" and similar impressive military-sounding terms over and over again, in a way that effectively prevents discussion of the actual issues and the key point made by opponents of these programs, which is that whatever one might say about powers asserted by previous Presidents, those were DIFFERENT SITUATIONS and one should not assume that extraordinary powers claimed for strictly limited periods of time and strictly limited geographic scope are applicable to an asserted war that has no such limits at all.
I would guess that if Dumbya Bush raped and strangled an Iraqi child on the White House lawn Will Allen would insist that it fell within his "wartime powers" and he couldn't be prosecuted.
Well, Dilan, if you think that a mentioning a Congressional Declaration of War, which is the act which significantly empowers a President as Commander in Chief, amounts to "babbling", when discussing the division of powers among the three branches, well, yes, you are an imbecile. Look, you were the one who decided that a scatological ad hominem attack on people that have differing views was a productive line of rhetoric, and now you stupidly find it notable that someone would mirror your tone. You really are an imbecile, with the self awareness of a seven year old.
Now, as to the matter at hand, if this war's enemies have been insufficiently defined, thus delegating too much leeway to this President, well that is something to take up with our dear Congresspeople, worthless souls that they are.
The point remains, under your theory, the President may order that a person be killed, without obtaining a warrant, if he falls under Congress' declaration of war, but the President may not order his phone call be listened to, absent a warrant. You have thus elevated the right to privacy in electronic communication to a position superior to the right to not have a projectile sent into one's brain. Quite a feat of reason, that.
Moe, it's been already established, throughout multiple posts, that you have the reading comprehension of a 2nd grader, so I don't think I'll bother with trying to explain to you why strangling an eight year old on the White House lawn would not be an act encompassed in a Congressional Declaration of War. The scary thing is that it is quite possible that you can't figure it out for yourself.
You really are an imbecile, with the self awareness of a seven year old. . .
. . .you have the reading comprehension of a 2nd grader. . .
. . .you just may be the most illiterate person to ever post in this forum. . . I mean, what happens within the vacuous spaces in your skull. . .
. . .which you are too much of a cretin to explain clearly. . .
Wow, I bet this guy is hugely popular at College Republican parties.
I see Nat has the same level of reading comprhension. Nat, here's a clue: read the thread. Examine how Moe first addressed me, and how Dilan chose to address those whith whom he disagreed. What is it with people who expect insulting rhetoric to not be returned in kind? I'm truly curious, Nat; what happens within your brain which causes you to be unable to note that it was Moe who decided that hurling insults was the preferred method of communication? Or that Dilan thought invective was preferred? Is their soemthing in your neurons which prevents you from seeing this, thus only allowing you to recognize that form of rhetoric when it is mirrored by those with whom you have differing political views? What is wrong with you?
Will, if you want to address the merits of the issue, the way to do that is to address the merits. And let's be clear here-- you are not Cass Sunstein or Laurence Tribe, so you really shouldn't be calling other people imbeciles when they offer competing interpretations of the Constitution.
In contrast, what I said was true-- it is the case that many conservatives seem to really enjoy going on and on about how we are at war. But you respond by saying well, we are. Not necessarily. There is an operative AUMF. That is not the same as a declaration of war. Further, as I noted, a state of "war" is both temporary (if indefinite) and geographically limited. The assertions of the Bush Administration are claims of permanent, geographically unlimited powers. These are not war powers-- these are powers that must, if they exist, be inherent in the executive branch even in peacetime.
So talking about war doesn't answer the argument. It really doesn't get to the pertinent points. But I am telling you, conservatives really seem to enjoy talking about it. Hence, my amateur psychoanalysis. In any event, there's a lot more substance to that point than to calling people imbeciles or claiming they can't read.
To answer your point, whether the President can order people killed depends on WHETHER THERE HAS BEEN CONGRESSIONAL ACTION TO LIMIT THAT POWER, as well as whether the Due Process Clause applies under the circumstances. But yes, absent congressional limitation, the President can order people killed by the military as part of hostilities under the commander-in-chief power.
What you ignore, though, is that in the surveillance area, Congress has acted. They passed FISA and stated that it is the exclusive means of doing in-country surveillance. (Note that the President DOES NOT have the unilateral power to kill people within the United States. Such killings are clearly precluded by the due process clause absent a valid basis for a declaration of martial law or calling up of the militia or a valid exercise of police power validly authorized by Congress.)
So the reason the President has the power to kill people is because Congress hasn't stopped him. But they have stopped him with respect to surveillance. And the AUMF doesn't change things for any number of reasons that we can discuss-- but only if you stop calling people who know what they are talking about imbeciles.
No, Dilan, you chose to adopt a personally insulting tone with regards to people with whom you have political differences, and then found it notable that such a tone would be mirrored. In other words, you are a very stupid person with regard to how human beings typically interact with one another. Or to put it a different way, you don't have enough sense to grasp that if one wants a civil tone in an exchange, one should first endeavor to keep a civil tone oneself.
As to survelliance powers, well, as I stated in my first post, I do think the Bush Administration has been wrong in the arguments it has put forth, but that is not the same thing as saying that Naplolitano's rhetoric, which was the point of the original post which started the thread, has been correct. And no, one cannot discuss this issue without using phrases like "Declaration of War", in order to explore it's differences, if any, with AUMF, and how such Congressional actions affect a President's powers as Commander in Chief. Now, you could have put forth your views on these matters in a straightforward way, but instead, given your brilliant insights as to effective means of human communication, you instead chose to be insulting, and then you showed yourself to be so stupid that you thought it notable that your insulting tone was mirrored.
I will say that I doubt the matter is as clearcut as you suppose regarding whether an authorization to use military force excludes surveillance of a communication which included a party who is off-shore and is part of the entity that Congress has authorized force against, given that surveillance is typically thought to be a type of military force. I could easily see a hair-splitting Supreme Court deciding that the surveillance was allowable, but that any information gained from that surveillance could not be used in a subsequent legal proceeding against the party to the communication who was within U.S. borders. Litigating these matters to their final end, however, always involves risks to the parties involved, including Congress and the President, so it isn't surprising that all parties decided to to avoid it.
Also, I never said you couldn't read. I said Moe couldn't. This is not an unreasonable supposition, since he plainly misread several statements, from several writers, including himself (!), as having precisely the opposite meaning than what they did. Normally, I refrain for ridiculing people with extremely poor reading skills, but once again, since Moe indicated that an insult-filled exchange is what he desired, I thought the most polite thing to do would be to accomodate him. Little did I suspect that he, like you and Nat above, is so stunningly ignorant of what typifies human interaction, that he would not expect that his tone would be mirrored.
Will:
There's a difference between:
1. "People who support the administration get excited talking about how we live in wartime and fashion themselves the new Orwells"
and
2. "You are stupid".
Number 1 is an argument that is supported by logical premises and which can be contested or agreed with.
Number 2 is just name-calling, and reflects very badly on the person who says it.
I will say that I doubt the matter is as clearcut as you suppose regarding whether an authorization to use military force excludes surveillance of a communication which included a party who is off-shore and is part of the entity that Congress has authorized force against, given that surveillance is typically thought to be a type of military force.
FISA is specific in its ban, and several canons of statutory construction make it clear that the AUMF did not amend FISA.
1. The Administration asked for, and obtained, amendments to FISA on 4 occasions after the AUMF was passed, for the express purpose of eavesdropping on Al Qaeda. If the AUMF authorized surveillance within the US, these amendments would have been unnecessary.
2. FISA and the Wiretap Act are specific on the issue of surveillance and when it is banned and permitted. The AUMF is general. Under longstanding rules of statutory construction, the specific statute trumps the general statute.
3. The Administration asked for broader powers in the AUMF, and Congress specifically denied the Administration those broader powers. Thus, the AUMF, as a limited statute, should not get a broad construction.
4. The AUMF says nothing about the use of force within the US. The use of force within the US is limited by the Constitution in various ways as well as by the Posse Comitatus Act and other statutes. Under Ashwander v. TVA, the AUMF should not be construed to authorize surveillance in the US for the same reason that it should not be construed to authorize force within the US.
5. In order for the AUMF, even if it did permit surveillance of Al Qaeda communications within the US, to apply, there would need to be a threshold showing that the communications indeed involved Al Qaeda. From what we know, the Administration uses broad sweeping searches of e-mails and voice communications to determine whether there is any information that might be connected with Al Qaeda or some other enemy. Under no construction of the AUMF could it authorize this sort of a broad search. (Indeed, THIS type of search arguably would violate the Fourth Amendment as it does not even meet the minimal standards required for a FISA warrant.)
The truth is, the President should have asked for an amendment to FISA or the AUMF to authorize this. In his infinite wisdom, he decided not to do it. It is entirely clear that FISA applies to this sort of surveillance and bans it, and that the AUMF doesn't change things.
Indeed, this is precisely way the Administration is now seeking retroactive immunity.
Dilan, since you can't even quote yourself accurately, it's probably pointless to note that I specifically explained why you were stupid, and it's also likely pointless to note how ridiculous it is to adopt the conceit that you can detect someone's inner emotional state, especially in a forum such as this. Look, you chose to a adopt a needlessly insulting tone, and then you thought it notable when your tone was mirrored. That indicates that you are quite stupid.
Your analysis may well be correct, but people who express certitude in these matters, regarding what the Supreme Court may decide, are being, yes, stupid. Our current court, after all, has decided that the First Amendment is entirely consistent with Congress banning certain words from dissemination at certain times prior to an election, by certain assemblies of citizens. It is quite possible that the Court would not choose to embrace your reasoning.
Comments closed March 03, 2008.
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Heads in the Sand
Lets start a pool on how long it takes Andrew Napolitano to get fired!
I say a week.
Posted by soullite | February 18, 2008 3:56 PM