The options for response then are that this is an impeachable offense (Gore), unlawful and the President should seek changes to FISA (McCain, some Dems), or that it is totally legal (the Administration).  That's it.  Choose.

 
???  Isn't there another clear option?  How about this: it's unlawful and the President should therefore stop doing it?  That seems like a perfectly measured and justifiable response to me.

How convenient that this Administration can claim it will do every thing including violating the rights of citizens, under the guise of protecting the nation. Yet reading just the beginning of this 42 page memo he has failed to do so. 

Page 4 3rd par. "Al Queda had demonstrated its ability to introduce agents into the United States undetected and to perpetrate devastating attacks, and it was suspected that additional agents were likely in position within the nations borders."

Lou Dobbs keeps repeating what most people realize, and want the president to address.Are there any agents of Al Quada still coming across the border? Stupid 

But they treat American citizens as the enemy.

No, Juliette, there isn't something to the "unitary executive" theory. It's been promulgated in the academic literature by a small band of Federalist Society law professors who, like John Yoo (but unlike most FS members I know) are intellectual whores sucking intellectual . . . well, let's just say sucking up to get federal judicial appointments. This fiction, this pretense, has been prominently refuted by Michael Froomkin (Dan's brother) and absolutely no one in legal academia grants this theory any credence at all. The notion that the President is unrestrained by law in any aspect of his duties is pure right wing fantasy. The Federalist Papers don't describe such a President. On the contrary, the framers meant what they said: that the President executes laws. Period. He cannot create them and he cannot act in contravention of them. Power has accreted to the Presidency in the modern era, but nothing like what the Bush people claim. This goes for his genuine role as commander in chief (that is, at the top of the chain of command; not the "commander in chief" of all citizens that is another right wing fantasy). War is not an arena ungoverned by law. The international law of war consists principally of treaties to which we are a party -- meaning that they are the law of the US. If, as you say, we are to be clear in this debate, we should be absolutely clear on one thing. No quarter is to be given to the fraud of the "unitary executive."

The new memo leaves unanswered the question of why the Bush Administration did not get warrants. The only answer I'm aware of is from Gonzalez, who said it was more efficient to skip the warrant process. That does not ring true to me.

How about this: it's unlawful and the President should therefore stop doing it?

Is that the only crime you'd just ask the criminals to pretty please stop doing it? Or do you have others in mind which would also require no penalty for wrongdoing?

You're name doesn't rhyme with "Schmieberman," does it?

After skimming the memo, I have a few observations.
First, you can find a cogent and thankfully brief rebuttal at the NYRB.
http://www.nybooks.com/articles/18650.

Second, it would have been more convincing if it read like a memo and not a legal brief. There simply isn't any consideration of any other viewpoint. Hardly a dispassionate legal analysis.

Techincally, I find the lack of any discussion of the difference between the Executive's international and domestic powers troubling. The memo spends a great deal of energy explaining why the President has foreign power authority, but I didn't see any serious effort at explaining why these powers should be exercised within the territorial US. I also found the efforts to distinguish Youngstown unconvincing.

But the most important observation and the one I'd harp on is that if this argument is correct, why do we need the PATRIOT act?

Just a thanks for an excellent, thoughtful "re-framing."

The Republicans are vulnerable on the border issue.

They will not address this issue because it hurts their Business lobby, Cheap labor is more important, than National Security. 

But we need to frame it properly so that they don't call us racists.  Or that every group who wants open border policy, cries foul. 

There's a reason we put locks on doors and windows. To keep those who would do us harm, out. But the government, just ignores, are rights, and comes in anyway.    

Democrats need to focus  on  IT"S THE  BORDER STUPID,

The Republicans will frame it as, Look,  we  promised we would Protect, thats why we eavesdrop, but don't worry, trust us. Don't trust the Democrats.  

We respond,  it is a false promise, and no we don't trust you, because

Look! you haven't even secured our borders. The most obvious response, of protection. To protect us. Against agents of terrorism, carrying a note? Or a verbal message, across the Border.  

Embarrass them, with the false rationalization of 1/2 measures they offer.  

One advantage of fighting it out in the courts would be that the legal merits would seem to be in favor of the plaintiffs.  Vic Wooddell

Unfortunately, it is unlikely that the plaintiffs will be able to show that they were damaged, that is, that there exists a "controversy" between them and the defendants.

Bush has said (lied?) that only communications between al-Qaeda operatives and persons located in the United States were monitored.  And the NSA (No Such Agency) isn't about to contradict him.  A court isn't likely to permit the plaintiffs to interrogate the government in a matter of national security and especially, where the requested discovery can be said to be a "fishing expedition."

Since the attorneys are not about to claim that they've been chatting with al-Qaeda members not in custody (the government doesn't allow jailed "terrorists" to make phone calls), they aren't included among those that Bush claims were monitored.  The plaintiffs weren't damaged or otherwise affected by the defendants' actions; ergo, they've got no justiciable claims.

These complaints aren't likely to survive the first motion to dismiss. 

I'm with ya. I like your qualified answer much better than the first. :-)

Impeachment will come once the truth is out. Way, way down the road, as you say, but that should be the goal if Bush broke the law.

In the months before 9/11, thousands of American citizens were inadvertently swept up in wiretaps, had their emails monitored, and were being watched as they surfed the Internet by spies at the super-secret National Security Agency, former NSA and counterterrorism officials said

If you didn't observe the "law officer" entering your house "illegally," how do you know he did?  And that's my point.

No provable harm; no remediable foul.  Or to put it in Constitutional law language, no "case" and no "controversy."

Can someone tell me, a good response to the presidents comments" if it was such a secret why did I tell anyone.
 HEH,HEH, HEH, grin ,grin,smirk ,smirk, 

Or something to that effect on CNN, so he told 8 members, does this satisfy, not keeping it a secret?

"If I wanted to keep it secret, why did I tell Congress?"

This little joke preceeded by a clip of an ovation on the Prez's having taken the stage played on all the networks.  And with no rebuttal.

On the other hand I'm not sure he's not right-- that this is the procedure for informing the Congress about secret programs.  It's up to the Security Affairs committees to hold hearings which can be done in secret.

There's no indication that Rockefeller or Harman ever sought such hearings.

Can't bear to read all this stuff.  BUT, Americans would do well to simply remember the context of the Bill of Rights.  It came soon after the American Revolution.  You know that WAR with Britan.  Britan was the actual legitimate government at the time.

A fair amount of the warrent stuff in the Bill of Rights is in reaction to the British government's idea that they could just come bust'n into your home and check to see if you were one of those terrorists (revolutionaries).  They didn't want to bother with having to have any evidence first.

Innocent people could have their lives upended because the legitimate government was legitimately protecting its governmental interest and the interest of its loyal citizens (the Torries we chased out of here) by invading the privacy of suspected revolutionaries regardless of whether it had evidence or not.

If you keep this in mind, you realize that the context of WAR like conditions between the government and some citizens is precisely where the warrent IS required.  Gonzalez's reasoning is BULLSHIT 101.

Do they have standing?  You bet. UNROVE

You mean like In the Matter of Samuel Squirrel and Teresa Tree v. Paul Bunyan?

But seriously, do you think the prosecutor would have brought The People v. Scott Lee Peterson in the absence of Laci Peterson's body?

In the case under discussion where's the corpus delecti, the evidence that a crime has been committed and that these ACLU plaintiffs have been harmed?

T'aint thar. 

Would an investigation be warranted.

No further action by Congess need be taken-

Sandra Day O'Connor already informed Mr Bush that the war resolution was not a "blank check". 

Some were asking why he didn't go before the FISA court.
 
I think he is trying to set up his own Secret Police Force.
Like the SS of Germany or Russian KGB

http://www.infoplease.com/ce6/society/A0844264.html

Surveillance Law 202

Juliette Kayyem said:

First, I have to admit that they are the best thing out there defending the President's constitutional, as well as Authorization for the Use of Military Force, authority (AUMF). The best; there are actually footnotes. The memo has long-lasting implications; don't simply shrug the memo off.

Here is what I have found to be the best rebuttal to the purported (implied) legality of the President's constitutional, as well as Authorization for the Use of Military Force, authority (AUMF). And the following includes footnotes also, tit-for-tat to those of the DOJ letter. For brevity, I have only included the Opening remarks, the AUMF issue, and the conclusion. The link will take you to the entire letter.


So keep in mind . . . The following:

ON NSA SPYING: A LETTER TO CONGRESS

Dear Members of Congress:

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush administration's National Security Agency domestic spying program, as reported in The New York Times, and in particular to respond to the Justice Department's December 22, 2005, letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program. Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

Snippet to AUMF issue:

1. Congress did not implicitly authorize the NSA domestic spying program in the AUMF, and in fact expressly prohibited it in FISA

The DOJ concedes (Letter at 4) that the NSA program involves "electronic surveillance," which is defined in FISA to mean the interception of the contents of telephone, wire, or e-mail communications that occur, at least in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). The NSA engages in such surveillance without judicial approval, and apparently without the substantive showings that FISA requires—e.g., that the subject is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue that FISA itself authorizes such electronic surveillance; and, as the DOJ letter acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance not authorized by statute.

The DOJ nevertheless contends that the surveillance is authorized by the AUMF, signed on September 18, 2001, which empowers the President to use "all necessary and appropriate force against" al-Qaeda. According to the DOJ, collecting "signals intelligence" on the enemy, even if it involves tapping US phones without court approval or probable cause, is a "fundamental incident of war" authorized by the AUMF. This argument fails for four reasons.

Snippet to conclusion:

In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President—or anyone else—to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable. See Note: [13]

From: Current issue of The New York Review of Books

Copy this and send it to your representatives post haste -- Tell them to read it fully and uphold the law -- Or you'll dump them from their position like an old suit...

~OldenGoldenDecoy~