Because Bush's secret Executive Order directing his subordinates to disregard Congressionally adopted law had no real practical effect (he would have gotten the same results by going to the secret FISA court), the Order must be seen as a constitutional test, a sort of coup in which the Executive branch overwhelms and diminishes what others, but not it, believe to be co-equal branches.

Bush's Saturday radio address to the nation is an appeal for an ex post facto plebiscitory mandate from the country to authorize him, the Executive, to take such actions as he deems necessary to "save" the country from terrorists.

At the risk of having Godwin's Law deployed, I think the speech is reminiscent of Hitler's 13 July post- "Night-of-the-Long-Knives" speech in which he sought justification for having murdered rather than tried those he called enemies of the German people.

If anyone reproaches me and asks why we did not call upon the regular courts for sentencing, my only answer is this:  in that hour, I was responsible for the fate of the German nation and was thus the Supreme Justiciar of the German people!

I'm glad that there is someone here who has worked with the FISA court and can speak from personal experience.  Here's what troubles me:  If the information gained from the wiretap is used for other covert operations or military intelligence, then the consequences of its legality are rather unimportant.  Simply put, if no case is ever brought in which evidence gathered by the wiretap is used, there is no opportunity review the constitutionality of the wiretap.  

And when was the last time this administration decided to prosecute someone for terrorism?  While there are a few ongoing cases, e.g. Padilla, that is not the general modus operandi of this White House.

Now with the revelation of secret phone taps initiated without warrants, we have even more to worry about.

As for their legal argument, I think we can take a quick look at Hamdi v. Rumsfeld for a likely snapshot of how the administration thinks the AUMF gives them the power to engage in such activities:

The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution.  We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention, through the AUMF. . . . The AUMF authorizes the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the September 11, 2001, terrorist attacks. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

Show that the warrantless wiretaps are 'necessary and appropriate' to the war on terror, and you got yourself some Presidential power.

The only question now is how far will the American people let this go; how long will they let fear rule their minds?

1.  NSA can record the intercept without reading it

2.  There's a desk officer at DOJ available 24/7 who can authorize emergency surveillance by phone; NSA has 72 hours thereafter to get the warrant

3.  Only the government can appeal FISA court decisions (they're secret afterall and applications aren't adversarial)

4.  FISA court judges almost never refuse to issue a warrant; if they did they'd be fired.

Conclusion:  There's no excuse for Bush's actions and the only likely explanation can be found in his desire to demonstrate his power.

Want to keep telling "My Pet Goat" jokes?  Try telling jokes about this, sucker! 

Thank you Ellen for putting into words what I have been thinking all day.

The thing I have come to understand about BushCo in the past two years is that they are not "conservatives" - they are far right revolutionaries, in the same way the guy whose name one cannot mention without invoking Godwin's Law, in the same way that Napoleon was revolutionary.  And just as the other European states in 1792-93 couldn't understand the revolution that had happened, and thus went down to defeat, we non-far-righties have failed to understand the true nature of the "movement conservatives" who took power in 2000.  They've been after this for 41 years at least, and they long ago decided to "do what needs to be done" to take back what they have themselves convinced was taken from them.

What Bush is pushing here is a coup d'etat, the same way Hitler did after the Reichstag fire (9/11) and the night of the long knives, as you note.

John Yoo has pushed a theory of the executive that is more words for saying "L'Etat C'est Moi" as Louis XIV put it - this is the 21st century equivalent of the divine right of kings and royal autocracy.  George Bush is - in the overall scheme of American constitutionalism - the equivalent of a Stuart King in 17th century England.

Having lived through Nixon, this is far worse.  This could be calld "Revenge of the Nixonites."  Bush is standing up and saying "I did it, I'll do it again, and there's nothing you can do to stop me."  This view of presidential power does make the McCain Amendment irrelevant - no wonder Bush went along with it, since he believes he isn't bound by it.

This is really nothing less than a baldfaced attempt to overthrow the constitution.  All those people who have said Bush plans to cancel elections and such, who I have rejected as too paranoid, I'm suddenly starting to realize we haven't been paranoid enough with these people.

FOREIGNID: 76396
FOREIGNPARENTID: 0
FOREIGNCOMMENTERID: 10525
AUTHOR: thievingmonkeys
DATE: 12/18/2005 01:27:16 AM

"As President, I took an oath to defend the Constitution, and I have no greater responsibility than to protect our people, our freedom, and our way of life. On September the 11th, 2001, our freedom and way of life came under attack by brutal enemies who killed nearly 3,000 innocent Americans. We're fighting these enemies across the world. Yet in this first war of the 21st century, one of the most critical battlefronts is the home front. And since September the 11th, we've been on the offensive against the terrorists plotting within our borders."

"In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks."

* a citizen of the United States * an alien lawfully admitted for permanent residence * an unincorporated association with a substantial number of members who are citizens of the U.S. or are aliens lawfully admitted for permanent residence * a corporation that is incorporated in the U.S.

"As the 9/11 Commission pointed out, it was clear that terrorists inside the United States were communicating with terrorists abroad before the September the 11th attacks, and the commission criticized our nation's inability to uncover links between terrorists here at home and terrorists abroad. Two of the terrorist hijackers who flew a jet into the Pentagon, Nawaf al Hamzi and Khalid al Mihdhar, communicated while they were in the United States to other members of al Qaeda who were overseas. But we didn't know they were here, until it was too late."

What Bush is pushing here is a coup d'etat, the same way Hitler did after the Reichstag fire (9/11) and the night of the long knives, as you note.

Open mouth, insert "Jackboot"!

Yes Ellen, I realize I was not thinking correctly on the FISA process. It is taking a little longer to really sink in for me that they had to actually be listening to and keeping rather than throwing away citizen's conversations. So then is this their March to Moscow and they're running out of food? It's time for the left to begin inserting the term "true patriot" into every discourse on the issue until they squeal.

Thanks Squeaky.  You saved me the trouble of writing the same comment.  Bush wants to spy on people for reasons that no legitimate court would accept - not even the the hideous secret courts of the Age of Terrorism.

But note how tyranny prospers by continally shifting the center.  In an effort to find a "moderate" ground from which to attack Bush, even his critics move further and further to the right. Now the terrible new apparatus of state prosecution and secrecy brought into existence by 9/11 is extolled by Juliette as an acceptable and  reasonable alternative.

What will we do when Bush actually starts murdering his enemies?  Will we say then that he had no need to resort to killing becuase he already had the power to tap their phones, snag them off the street and render them to some other country for torture?

This has all gone way too far. We need to roll back the whole apparatus.

I agree this is a power grab.

Arguments from Article 2 of the Constitution have emotional/psychological resonance but no logical weight. The fact that the President is CiC of the military says nothing about whether those forces can act outside of law and Congressional review. The purpose of the language about command is to restrain the military so that there are not competing powers and to have civilian control.

The President is not free to order the Armed Forces to act against US law, period.

Also from the Constitution, the Oath of Office tasks the President with executing the office and defending the Constitution. Important to note that it does not say defending the country. In "faithfully" executing the Office the President is expected to perform the duties specified. Faithful execution does not imply redefining the Office. It does imply acting in accord with the nature of the Office as seen by Congress and the Court at the time of swearing-in. An elected official is not free to determine his own powers.

Another item to add to the impeachment counts.

This is flagrant violation of Constitutional limits and and not justified by the Constitution or any resolution about use of force. Any resolution that expanded Presidential authority beyond Constitutionally defined limits would be on shaky legal ground. Use-of-force resolutions serve as Declarations of War, satisfying the Constitution. They cannot be used to amend it.

Finally, the fact of the executive being the Commander-in-Chief of the Armed Forces does not mean he is CiC of the citizenry. If it did the President would be above review, so Joe Lieberman's comment about supporting "his" commander-in-chief is treasonous by placing the president above the law.

Bush will back down.  He's that kind of guy.

Throughout his career Bush has pulled off the throttle even when it looked like nothing in the world would change his mind.  Reality has a way of neutering our Cowboy 'N Chief.  Just look at his social security plan, or Homeland Security, or McCain's torture bill, or the dozens of other losing policy debates that have forced him to switch sides on major issues.  He's not nearly as resolute as his followers think.

I'm pretty sure Republicans in Congress will give the President every opportunity to pull back on the NSC spying program and change his mind without any repercussions.  The bargain will be: cancel the program and we'll hamstring any investigations Democrats try to mount.  Of course, if Bush continues to plow ahead, we're heading for a constitutional crisis.  But something tells me he'll blink.  He always does.  

The Republicans (like Spector) who want to look like adults will get their chance -- and the rest of the Conservative Children on Capital Hill will blame Democrats for surrendering to terrorists after Bush folds.  In the end, Dems will win this one...but being right will come with a price, as it always does.

Nor should one underestimate the geographic expansion of legitimate intervention zones. Because any desert and any jungle can harbor a fac­tory for weapons of terror, a superpower must have eyes everywhere in order to be tranquil at home. Every attack it launches on the other side of the world becomes an act of self-defense, and it is therefore possible to be both neo-isolationist and omni-interventionist, as the defensive perimeters of Los Angeles and Chicago are now situated in sub-Saharan Africa, the Red Sea, and perhaps, tomorrow, Cape Horn.

Why would Bush authorize warrantless surveillance when it was so easy to obtain a warrant?

Despite the discussion above, Josh's postings indicate that requests are, effectively, approved 100% of the time. The ability to get a retrospective warrant also eliminates the timeliness argument. So why do this?

My guess is that the admin wanted to spy on people where there was no link to "terrorism." The two most likely groups are domestic political opponents (remember the Nixon plumbers), and foreign allies. Paranoid governments convince themselves that they are the only ones that can "save the world." Thus any political opposition is seen as a national threat. The worse things get in the real world and the more isolated the administration gets the more the need to do extra legal things to try to control events.

A good example is the situation in Russia starting in the mid 1870's and ending in 1917. As the Czar and the Czarist form of government became less acceptable there was a corresponding rise in the use of the secret police. In addition the number of people imprisoned, sent to Siberia or executed increased dramatically.  Things like distributing pamphlets became serious offenses.

We have seen many similar cases in the 20th Century as well.

The question that needs to be answered:

Who were the targets of the warrantless wiretaps and why were these people dealt with in an exceptional manner? 

Hey, Owenz, are you the same guy who comments over at Redstate.org?  I was over there for a while, but they banned me for calling a guy's argument cromulent.  (He was arguing that Muslims qua Muslims are an inherently different and completely distinct type of human being, i.e. he was a racist.)

In any case, I went back to read their site in the past couple days just to see what they had to say about the wiretaps.   One of the scary things is that they appear to simply not care.  Another commenter linked to post in which he asked whether it would bother anyone if the government taped every word spoken by any person within the US.  The overwhelming response was that it wouldn't bother them.

Interesting reading for anyone who wants the view from the other side of the aisle.

But note how tyranny prospers by continally shifting the center.  In an effort to find a "moderate" ground from which to attack Bush, even his critics move further and further to the right.

So true!  That is why it is not merely the political duty of Democrats but their patriotic duty to act in opposition to this highly organized and broad grab for power. 

I do not think impeachment is the answer.  The problem is bigger than Bush.  The problem is the whole move to the far right.  This is not a time for "centrists".  This is a time for those who still believe that "Give me Liberty or Give me Death" was a better slogan than "Everything changed after 9/11".  Are we a nation with the courage of our founding fathers or are we a nation with the mindset of 1930's Germans -- looking for scapegoats and surrendering to fear?

For me I too have no problem with anyone looking into my life or into my religious, political, or financial background for I have nothing to hide.

Comments like that make me want to scream.  Doesn't anyone teach European history or the Federalist Papers in red states?  Why do you think the founders insisted on the 4th amendment?  Something to hide could be a Protestant in a Catholic regime or a Catholic in a Protestant regime not to mention a Jew.  Is anyone ever bankrupt?  Doe anyone ever have a miscarriage or Gawd forbid an abortion?  Does anyone ever have a child with a drug problem or a spouse with a drinking problem?  Does anyone have a relative or an in-law who is an immigrant?  Is anyone ever gay?  .....

Not you?  OK then.  Cool.

It also doesn't matter if a person has a problem with the government looking into those things. If the Executive Branch does it in a way that breaks the law as Bush did there must be legal accountability. Now, if Bush on his own were to decide his own accountability he would probably award himself a Medal of Freedom (just as Comrade Napoleon awarded himself Animal Hero First Class in Orwell's classic Animal Farm). However, we're suppoosed to have a functioning Congress and federal court system to hold the Executive Branch accountable, not rubber stamp everything Bush does.

In most of these cases it wasn't public scrutiny but judicial scrutiny or threatened congressional failure that precipitated their backslide.

It just goes to show that they like the Yoo Doctrine, but they don't believe in it any more than we do.  I'd love to see the Supremes pick up the issue of Padilla's detention, since it overlaps with so many of the executive privelege issues we've seen in the torture/spying debates.  A firm rebuke by the Court on Padilla would caste even more doubt on the Administration's reliance on the Yoo Doctrine.

After all, if the President's "secret powers" as commander-in-chief don't give him the authority to label an American an "enemy combatant" and hold that individual without trial indefinitely, he can hardly argue those same powers give him the authority to violate federal statutes like FISA with impugnity.

The White House has avoided most challenges to its authority by cloaking its programs in government secrecy, thus hiding them from Congress and keeping them out of the federal courts.  Once exposed, however, their legal and political justifications have proven to be wafer thin, amounting to little more than "because we can."

These people are criminals and cowards.  They are experts at relying on the tools of deceit and secrecy, but they piss their pants when faced with open debate.  One Russ Feingold is worth ten Dick Cheneys in a fair fight.

Yes. Of course there are some in Congress who have not been kept in the dark regarding the various secret programs and it would be nice to know who approved what with their silence. You have to wonder if Bush has been priming the Supreme Court for the inevitable showdown over the "Yoo doctrine." His SCOTUS nominations may have more to do with pro-executive privilege views than anything else (that would explain Harriet Miers). And the one Feingold vs. ten Cheneys fight would be inherently unfair (to the Cheneys!).

Trying to put myself in Bush's shoes after 9/11, I can understand a desire to have NSA do a blanket monitoring of all communications to/from Afghanistan, for example, looking for targets.  Can the FISA statute accommodate this?  I assume so, since they are allowed to do 72 hrs. on any target before seeking the warrant.  If FISA cannot accommodate things like this, maybe Bush has some sort of argument. 

It probably is, but which offenses are impeachable is ultimately determined by Congress since they have the sole power to initiate impeachment proceedings and the sole power to convict the President for it.

I think the polarisation-partisan variety- had created a very uncivil/petty environment, which is one of the key reasons for the proliferation of the surveillance measures. I would venture that a significant number of them have been carried out by non-governmental individuals, groups, and private domains as well. This is as much part of commodified political culture as agency. When everything is for sale...well everything is for sale! Some people like to skulk around looking to cash out on this kind of stuff. I've never seen anything like this culture in my life. I suppose I should be grateful that I was spared for so long. 
Anyway, I hope that we can regain some measure of sanity. Looks tuff! 

Re: They don't care about wiretaps--------
Do you suppose they are the ones conducting them? Lol! Actually I have several plausible theories as to why some of them don't care. Some of them hate the US for being in any way solicitous to a Muslim, even suggesting that Muslims should not be given government jobs. I've seen that sentiment expressed on the Net.
I am stunned that ethnocentrism is the major impetus for policies. 

If FISA cannot accommodate things like this, maybe Bush has some sort of argument.  

Not really. Wanting to do something the law doesn't allow isn't enough justification for doing it. If the President felt there was a need to do something not allowed by the law, he should have asked Congress to change the law.

That's the key -- the ease with which they can do it. This case highlights Bush's intellectual and moral laziness better than any other and that is saying something.