More on FISA
Here’s the deal: I have not yet been able to determine if the Bush administration violated the law regarding the unwarranted searches for which they neglected to get after the fact authorizations. The issue is a complex one and, frankly, will have to be decided by a court.
That said, it doesn’t make a bit of difference if Clinton did it too. It’s legal or not. Period. If I don’t like Clinton doing it, I also don’t like Bush doing it. After all, your guy won’t be in power forever. And see rule #3.
This crazy talking point (illustrated here in comments by Bill Hobbs) that, well, I’ll just let him say it:
Have you seen any polls from CBS or CNN or ABC or the NYT or the WaPo asking Americans what they think of the president using the NSA to eavesdrop on suspected al-Qaeda agents living in this country?
After all, they poll on everything. You know they’ve polled on this.
But you haven’t seen those polls published.
Why?
I suspect it’s because the polls were taken and showed that a solid majority of Americans are in favor of the spying and are upset to learn that the NYT blew the program and, by doing so, has made it more difficult for the government to stop terrorist attacks on the homeland, thereby putting American lives at more risk.
Just because something is popular, it doesn’t make it right or wrong. It just makes it popular. Or as I said in comments there:
Let’s look at other things that were supported by the majority:
Eugenics in Germany
Segregation
Slavery
10 seasons of Friends
As a general rule, when an overwhelming majority of white people want something, it can’t be that great.
So, the issue is this: Should this type of spying be allowed? With all the partisan bickering, folks are losing sight of whether or not this stuff should be happening in the first place and there’s a case for either position. I personally tend to think that, in the event of an emergency, it should be allowed subject to review. As Bob Krumm says:
What has been sorely lacking since September 11th is a sober and thoughtful national discussion on the balance between security and civil rights. As a result, we lack a long overdue update of policies and procedures that don’t adequately address modern telecommunications or modern terrorism.
Will we get that discussion? No. We will not.
December 22nd, 2005 at 1:20 pm
I personally tend to think that, in the event of an emergency, it should be allowed subject to review
As I understand it, thats the law right now. They have up to 72 hours after the fact to go to the FISA court to get a warrant. Bush decided to drop the 72 hours after the fact review on a certain number of cases. As to Bill’s point, the feds can legally eavesdrop on AQ..they just need to GET A WARRANT. The article doesn’t make it harder for the feds..everyone already knew that the feds could eavesdrop.
December 22nd, 2005 at 1:23 pm
“Will we get that discussion? No. We will not.”
We might when bush leaves office, and we might come close with the patriot act talk in the sentate.
December 22nd, 2005 at 1:30 pm
Problem is both sides are looking for a stick with which to beat the other into submission.
This whole things should be the perfect starting place to have a discussion about “the balance between security and civil rights.” It’s a complex subject, and there is much to be said on how to handle it, with no clear right way or wrong way of doing it.
But instead, the Republicans will circle the wagons as the Democrats start looking to impeach.
Sad.
Well, salvation won’t come from these clowns. It’s left to the rest of us to do it.
I wish there would a sunset clause on these powers that forces the sitting President to get approval from Congress. Perfect, no, but I think it could provide the tension needed to perserve personal liberty overall while meeting the need to gather intel during a war situtation.
December 22nd, 2005 at 1:33 pm
So, since the legality of these warrantless searches hasn’t been court-tested, there is no way for Bush to be prosecuted/impeached without implying that Clinton should be prosecuted. Ex post facto prohibits Bush from being charged with something that isn’t illegal (or understood to be illegal) at the time of the offense. Clinton used this warrantless search capability to take down Aldrich Aimes in 1995.
You try to compare the public opinion in this case with Segregation, Slavery, and Friends, but I’d hazard a guess to say that, in this case, public opinion is important. For this issue, it is all about public opinion. The intent in holding this story for over a year is to pull it out at an opportune time. The people leading this story don’t want to do anything but hurt Bush’s political progress. They aim to tarnish Bush and his political coat-tails prior to ’06. This is a purely political issue, and any potential legal issues are seen as gravy for the leftists pushing this story.
I’m all for the federal government being aggressive when protecting the lives of citizens from foreign nationals. I think in this case, when non-citizens are involved and are the primary targets, I don’t think we should put the right of privacy for non-citizens ahead of the rights to life of the citizens. The federal gubment’s primary responsibility is protecting us in the free exercise of rights. At least Bush used this tool to prevent terrorists attacks, and not monitor local extremists groups, like Clinton did.
I’ll agree that a President should notify Congress and allow Senators and Congressment to raise any appropriate stink. In this case, Bush did that. Whatever the Dems may say to hide their backsides, they knew. If public opinion comes out and supports these activities, the Dems will change course and try to take credit. I think these searches of foreign agents and suspected foreign agents is appropriate. I think my right to life, liberty, and pursuit of happiness outweighs their rights in this case. After all, I’m not trying to attack them.
December 22nd, 2005 at 2:09 pm
The key thing is that IF it is to be allowed it MUST be subject to review. I don’t care if it’s Bush or Clinton or the next idiot that ends up in the White House. I don’t want the executive branch to be grabbing power for themselves under the excuse of dealing with some War on an Improper Noun.
If the spying really is necessary, then Congress can pass a law allowing the Executive to do it with some kind of check by the Judiciary. It’s not like any of these bodies has shown any real reluctance to take away the rights of Americans at the drop of a hat, so it shouldn’t be too onerous.
Look at all the rights we’ve lost in the last 30 years in the War on Drugs (including, I might add, a de facto loss of the 2nd Amendment due to the prevalence of bad address no-knock drug raids).
Imagine what we’ll lose in the next 30 years in the War on Terror (combined with the War on Drugs) if we allow the Executive Branch to decide, on their own, what “tools” they need to secretly combat it.
December 22nd, 2005 at 2:11 pm
Without civil rights I have no security.
My personal opinion is that the overwhelming majority of Americans are fine with warrentless wiretaps. They are also fine with illegal detention. Give the average majority of Americans a television set and an automobile and they are as free as they ever hope or expect or care to be.
The government knows this and acts accordingly. We are in the process of building the perfect beast gentlemen. It is just a matter of time.
December 22nd, 2005 at 3:36 pm
[…] Today, it comes from SayUncle: As a general rule, when an overwhelming majority of white people want something, it can’t be that great. Ha! Never have truer words been spoken. Just before that, he said: Just because something is popular, it doesn’t make it right or wrong. It just makes it popular. Or as I said in comments there: […]
December 22nd, 2005 at 4:22 pm
Just an observation;
To the Left, everything is either a “crisis” an “emergency” or a “war” (war on poverty, health care crisis, etc., ad infinitum.)
Therefore, the phrase “only in times of emergency” applies to all times, everywhere, forever.
December 22nd, 2005 at 5:03 pm
Lyle:
To the Left? Uh, who coined “War on Terror?” Who coined “War on Christmas?” For that matter, who coined “War on Drugs?”
Why, it was those leftist commies W, Gibson, and Reagan, respectively!
December 22nd, 2005 at 5:27 pm
“The issue is a complex one and, frankly, will have to be decided by a court.”
Doesn’t seem too complex to me: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Given that the government does a pretty good job of ignoring that all the time, I don’t expect much different in this case; expect a circus with many people saying things that are outright lies or have nothing to do with the subject at hand.
In case I’m not clear about my position: They can listen in on anybody they want — right after they get a warrant; said warrant meeting the following criteria: a) based on probable cause to believe a crime is being/has been committed, b) supported by oath or affirmation and c) discribing the particular person(s) to be spied upon.
If they are listening in on “cell” phone conversations then I think the whole issue is moot: I consider radio transmissions to be VERY public speech and anybody who can tune it in is welcome to listen in — even the government and irrespective of any laws that congress may have passed prohibiting such activity (no constitutional authority for any such law). Of course if you are using good encryption then somebody listening in can get no more than traffic analysis.
December 23rd, 2005 at 6:19 am
[…] ALSO: SayUncle says this: That said, it doesn’t make a bit of difference if Clinton did it too. It’s legal or not. Period. If I don’t like Clinton doing it, I also don’t like Bush doing it. After all, your guy won’t be in power forever. […]
December 23rd, 2005 at 10:37 am
JJ, you have several facts wrong. What Bush is alleged to have done is not the same as what Clinton did. Clinton’s order explicitly instructed his DOJ to operate within FISA. Bush appears to have bypassed FISA entirely, so his actions were not checked by the judicial branch. Whether his spying was actualy limited to foreign intelligence purposes is not clear and needs to be investigated.
Your claim that the NYT held this story for a year in order to wait for an opportune moment is laughable considering they held it at Bush’s request. Did you miss that part of the story, where Bush called the publisher to the Oval Office to ask him not to run the story? Don’t you think running it in October 2004 would have been ideal if Bush-bashing were the motive?
Bush notified selected members of Congressional intelligence committees, not the full Congress, and your assumption that only non-citizens were monitored is just an assumption. There was a system in place that allows a President to essentially do whatever he wants in spying on non-citizens, but Bush chose to operate outside of that system and outside of Constitutional checks and balances. I would think that would concern libertarians and small-government conservatives.
December 23rd, 2005 at 11:16 am
I think it is necessary.
Article 2 gives him the power and responsibility to do so.
In fact, if he doesn’t, I consider him negligent – like Clinton was.
December 23rd, 2005 at 12:40 pm
Bush was certainly negligent throughout the spring and summer of 2001. Clinton tried to warn him during the transition that al Qaeda was the most imminent threat facing our country. Condi Rice knew it was true. That’s why she kept Richard Clarke on staff, so he could carry out his al Qaeda attack plan that was finalized in the last month of Clinton’s tenure, but which Clinton chose to hand over to his succesor rather than launching a major initiative just before leaving office. Unfortunately, it took Bush until September 4, 2001 to address Rice and Clarke’s concerns and green-light the plan. Read the 9/11 Commission report. It’s all in there.
Monitoring al Qaeda and other foreign threats is most definitely within the power and responsibility of the President. Spying on American citizens without judicial checks is not. Whether Bush exceeded his Constitutional authority is not clear right now. There have been admissions that purely domestic calls were monitored, allegedly by accident. A FISA judge has resigned. Particularly since Bush chose to minimize or evade judicial and Congressional oversight, only an investigation can determine whether Bush stayed within his Constitutional authority.
December 23rd, 2005 at 12:46 pm
I they can’t get the easy things right…..like not having infants on the no-fly list, then I don’t think I am going to be inclined to trust them on the difficult stuff.