Monday, February 13, 2006

Put Up Or Shut Up

"You can discover what your enemy fears most by observing the means he uses to frighten you." ~ Eric Hoffer

There is something I don't understand. There has been a lot of discussion lately about the legality of the wireless wiretapping that the National Security Administration has been doing in it's efforts to prevent further 9/11 style attacks on America.

There are a myriad of charges being made both for and against this program.

Some are calling it "Domestic Surveillance", meaning they think the NSA is wiretapping all American citizens, or at least, many of them, without just cause in a direct violation of their civil rights. Some say it is only the wiretapping of known al-Qaida operatives, monitoring phone calls between al-Qaida in the Middle East and here in America.

Regardless of what it is called, the discussion is not centered around the wiretapping itself, but around it's legality.

Personally, I see this as a red herring. Opponents of the wiretapping program are throwing any thing they can use out there to distract the American people from the real issue, and that is to get rid of George W. Bush, or, failing that, at least make his efforts to secure peace in the Middle East ineffectual, for the purposes of regaining political power.

Whatever the reason, here is what I am having a difficult time understanding:

If, indeed, there is a law that is being broken by the Bush administration, why can't someone produce the law in question for the perusal of the American people? Surely it is printed out in text somewhere. If it exists.

If it does exist, is there some ambiguity to it, that even law experts and legal scholars can't grasp the legal language found therein? Can't someone somewhere produce, for the benefit of the American people, and to put our minds at ease, the very law that the President is supposedly breaking? Wouldn't that production put an end to any argument concerning the legality of the law?

Some years ago, my then wife was the victim of "assault", a crime usually coupled with the charge of "battery". The perpetrator wasn't charged with battery, only assault. I asked the arresting officer what is the difference. She informed me that the charge of assault can be applied anytime someone confronts another person in a threatening manner, without actually touching the victim, usually being manifested in the form of verbal threats. If the perp proceeds to follow through with the threat by placing hands on the victim, even if it's only a gentle shove, it becomes battery. Thus, one may assault another without committing battery, and vice versa.

That is an example of a definitive distinction that permeates every facet of law in the United States. Everything is very well defined in absolute terms, to insure no possible misunderstanding of the law in question.

Indeed, the definitions are so completely detailed that they border on absurd redundancy. You can often times find several pages of text explaining the minutest of details.

So, again I ask, why can't the opponents of the NSA surveillance program produce the actual law they claim the President is breaking? If it exists, it must be defined in absolute terms so that there can be no doubt as to the exact meaning and intent.

I'll tell you what I think. I think there is no such law, or the Democrats that are charging the President of breaking it would produce it and end the discussion once and for all.

So, to all of you who say the President is breaking the law, I say: Put up or shut up!

Addendum: I have made some changes to my side bar. I have replaced a couple of links to blogs that haven't posted in over a month with links to some other sites, like Rush and Hannity and Mark Levin. If you haven't heard of Mark Levin, I urge you to check out his site, and, if you can get his radio show in your part of the country, listen to it once. You'll get hooked!

31 comments:

Sean said...

There are two laws:

50 U.S.C. § 1809

and

18 U.S.C. § 2511(2)(f)

Mark said...

Ok. What do they say? And why haven't the Dems used then to prove their point?

Sean said...

Google them, if you want to see what they say, I'm not going to paraphrase. The Dems don't have to sight specific statutes, the Bush administration has the burden of proof, as they appear to be in violation of the law.

Little Miss Chatterbox said...

Awesome post. I wholeheartedly agree. Put up or shut-up!!

I love Mark Levin. I wish I could get his show here.

Jim said...

Putting up

I present to you

US Code

Wikipedia

You must only listen to Rush, Sean, and Glenn for your information. You need to broaden your information sources. The Democrats are talking about, citing, and repeating this law and how it applies to what's going on.

You are astonishingly uninformed!

Mark said...

OK. I googled it. This is the first statement I saw:

"Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a
court order under this subchapter to acquire foreign intelligence
information for periods of up to one year..."

There is more that appears to say that The President and the Attorney General have to get permission from a court before or immediately after doing surveillance, but at the same time, it doesn't mention "In time of war" which, according to what the Presidents supporters say, makes the difference.

So the law seems to contradict itself.

This is a very interesting discussion. I will need to study it some more, and it wouldn't hurt to find some lawyer who understands legalese to help.

Jim, I take offense at being called ignorant, or any form of that characterization. If you come in here and can't be respectful, I won't publish your comments.

Sean, I don't blame you for not wanting to paraphrase that. It is confusing.

Dan Trabue said...

To be fair, Mark, Jim called you uninformed, not ignorant. Myself, I'd have to own up to being uninformed - ignorant, even - on what the law says exactly.

From what I've read, though, it seems to me that the president has broken the law and, as I've stated here before, I don't trust this administration enough to simply take their word or the word of their supporters that he didn't.

Erudite Redneck said...

I am ignorant about quantum physics. Therefore, I don't post about it.

Jim said...

Mark,

I try to use my words carefully. You will notice I did not say ignorant. I said uninformed. And while they may be considered synonyms, I think the latter is less perjorative, and that's why I used it.

I try my best to avoid personal attacks or name-calling even in the face of name-calling against me. When people falsely accuse "the left" or Democrats of saying, doing, or believing something, I call them on it. But I don't call them names.

If you don't know what the FISA law is by now, then you have no business debating the issue because FISA is a core aspect of the issue.

You are right. The law is complex. But it is also quite flexible when it comes to meeting the needs, both immediate and long term, of national security. That is why many people on the left AND the right question why the administration would choose to bypass the law unless bypassing the law, in and of itself, is the point.

Jim said...

I will try to be more sensitive. And I would expect the same.

Sheila said...

Oh By the way my friend,

There is no Delcared War because the Adminstration couldn't define a start and a finish as with declarations of war. As with the Korean Conflict, The Vietnam War, and the First Iraqi Conflict, War wasn't declared either.

rich bachelor said...

Section 1811, "Authorization in time of war", from Title 50:
" Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a
court order under this subchapter to acquire foreign intelligence
information for a period not to exceed fifteen calendar days
following a declaration of war by the Congress."
That's the relevant section in its entirety. Fifteen days, unless they go get authorization again.
Discuss.

Mark said...

My apologies, Jim. You said, "Your ignorance is astonishing" in my previous post thread.

And I assumed, wrongly, that you used the term the same way most people do, as stupid, and not in the truist sense of the word.

It appears that the sticking point in this is the definition of "war", as defined by the administration as opposed to Congress. I believe the "declaration of war" in this case is implied. The Congress did not formally declare war in the way they did in WWII, but the declaration is implied in Congress's authorization to use force against the terrorists and against Saddam.

Sheila said...

Guess you lost one of my posts?....or did I accidentally erase it in my blaze of exhaustion? It should have been posted before this last one.

Mark said...

Don't know, Sheila, I posted everything I had from you. The only one I rejected was Bruiser, who can't seem to stay on topic.

Jim said...

Apologies accepted and mine offered to you. In using the word ignorant, I was referring to your knowledge of these legal issues and the Democratic position, not as a general condition. :-)

You have shown a willingness to research the issue and acknowledge that the issue is debatable. I applaud that.

I think you are getting close to the point, at least my point. If the president can do whatever he deems necessary during a state of war (and I would argue that point, too) what are the parameters that would determine how long the country would remain in that state and therefore allow these theoretical, extraordinary powers? What if the this state of war lasts beyond 2008? What if Hillary Clinton is president then? Extraordinary powers still cool with you under a Hillary Clinton presidencey?

So why should I trust the Bush presidency?

Poison Pero said...

I'd take the stance of Alexander Hamiltion 100 times out of 100 against that of the modern Democrats.

"The circumstances that endanger the safety of nations are infinite,and for this reason no constitutional shackles can wisely be imposedon the power to which the care of it is committed." —AlexanderHamilton, Federalist No. 23

Bush was was a terrible canditate in 2000, against a sitting VP.....Bush was an average candidate in 2004.

Yet he won both (count 2000 however you want, Dems. Gore should have cleaned his clock and didn't).........Bush won both, because most (even if only 52%, his 2004 total) are sick of the defeatist, degnerate, Democrats.

Don't give me:
50 U.S.C. § 1809

and

18 U.S.C. § 2511(2)(f)

Give me Alexander Hamilton
-------------
If modern day Dems were around at the time of the founding of the country, there would be no modern day U.S.

old soldier said...

I see no discussion about the constitutionality of the FISA associated code. There is strong belief that it violates the separation of powers of the three branches in that the legislature has attempted to limit executive branch powers; which of course it cannot do.

So until this is put into the court system, it will remain a he said she said scenario. IMHO should it hit the courts, the outcome will be that the president is acting within his powers and FISA is unconstitutional. We'll see.

In the interim, unity of purpose would be far more productive in defeating the radical Islamic terrorists than a fight over the presidents authority and responsibility. I find it pathetic indeed that people want to fillet our intelligence techinques in the middle of this conflict. Call it what you will, but "technically" it IS war (authorized by Congress; whether they remember it or not).

Sheila said...

Poor you or poor Bruiser?

Bruiser...why don't you calm down and make some valid points. Leave the bright nasty remarks to the dark reaches of your intellect.

Your politics are not even pro-active if Mark isn't posting you anymore.

Isn't it better to make a valid point in a civilized way then to get silenced by your out of control anger?

Be civilized and you can join the game again.

Jim said...

Old Soldier,

FISA was originally passed by Congress and signed by the president in 1978, 28 years ago. Just when did you think anybody who thinks it's unconstitutional was going to speak up?

Furthermore, FISA was amended and updated by the Patriot Act. I thought only the looney left had a problem with the Patriot Act.

Powers of the president? It is no accident that the Executive branch is described in Article II of the Constitution and the Congress is Article I. I refer you to the "powers" of the president as enumerated by Article II Section 2 of the US Constitution which I paraphrase as follows:

The president is Commander-in-chief of the military (not the nation).

He has the power to grant reprieves and pardons.

By and with the advice and consent of the Congress he can make treaties, appoint judges, embassadors, and cabinet officers.

He has the power to fill vacancies in the Senate.

Section 3 goes on to say:

The president shall give the Congress from time to time information on the state of the union and (get ready, here it comes) "recommend to their consideration such measures as he shall judge necessary and expedient." And "he shall take care that the laws be faithfully executed."

Are you an "originalist"? A "strict constructionist"? Because that's the Constitution and the power of the executive.

Which of these powers does FISA unconstitutionally limit?

rich bachelor said...

I'm terribly sorry Jim. You're actually informed on the subjects at hand, and will quickly be called names by the host of this site, who will then call you 'hateful', if you fail to agree with him, or 'humorless', if you fail to laugh at his jokes.
Just a warning, which you won't see, since he's also too immature to let others see what opposition voices have to say.

Sheila said...

I'm with Jim on this one.

That point was what I tried to write last night.

Old Soldier, no one is trying to limit the powers of the Presidency as it was written for the last 230 years.

The rest of our War Presidents through history were calmed down and at times Congress told them to obey the law or ask for a rewrite. Great Checks and Balances by our Fore Fathers.

I think you might be re-acting to the amount of percieved dis-respect you've seen since 9/11.
Defense in the name of patriotism tends to cloud some issues.

AND of course sir, I'm not being rude. I just want to point out that both sides are being Patriots and both sides are not explaining themselves very well because.....

Both sides are so emotionally involved in their side of the whole truth, they tend to cherry pick the information to suit their comfort zone.

The fact is; Our country has not been in such a clear cut war since world war two.

Young and old, we need to get our "War Legs" or I guess need to learn how to really "sacrifise" again.

We haven't come out of the Great Depression this time. We have come out of the greatest sustained financial boom in the history of our country. We have grown children who have lived a life of luxury their whole lives. Sense of community and love thy neighbor is all bu non-existant.

Democrats are not being unpatriotic. They are acting JUST like what the House and Senate have acted like since before cameras were trained on this through CSPAN.

Congress was actually known as a very ungentlemanly place, however necessary.

To everyone. Read what Jim wrote without so much emotion. What is happening right now. Is democracy in action.

Jim that goes for you too. :) I hear you. Now get less emotional and for professor like.

It does not mean that the President is in danger of impeachemnt. According to our Constitution. No one is against the law and congress is doing it's job.

President Wilson was not impeached for trying a Government take over on the steel mills during the war. He was told he couldn't... I'm sure President Bush won't be impeached for;

"The Clarification" of a relatively new law in a new war.

Congress is watching out for ALL of us.

Mark said...

To Jim, and any others who have respectfully disagreed with me without resorting to name calling and insults:

I have published Rich Bachelor's comment so you may judge for yourself who is really "hateful" and "immature", and who is really guilty of name-calling.

I love it when they condemn themselves, while trying to condemn others.

old soldier said...

”The president is Commander-in-chief of the military (not the nation).”

Jim, “the military” includes the NSA. The president possesses the authority to direct the military ((Article II, Section 2) to engage and kill the enemy; of that there is no dispute. That same section makes him commander of the NSA also; because the NSA is a branch of DOD. The AUMF authorized the president to engage the military against an enemy – that includes the NSA. If FISA (signed by Jimmy Carter) inhibits or restricts the president’s ability to employ the NSA (or any intelligence gathering element of the DOD) against the enemy it is unlawful.

It is a military operation to combat our enemy and that includes the gathering of intelligence to know: his plans, his capabilities, his resources, etc. and use that intelligence to engage him and destroy his ability to attack us. This war is not being fought in the courts; it is being fought in battlefields from Afghanistan to NYC. We must be determined to engage the enemy wherever we find him – abroad or at home. Planning attacks against us is an act of war; not merely a violation of criminal law.

If the 4th amendment has been violated; then let those violated come forward and swear complaints and warrants. Isn’t it still incumbent upon the accuser to prove conclusively that an accused has violated a law – not the other way around? The intent behind NSA gathering intelligence is to prosecute the war – not to prosecute a criminal in a court of law.

Jim said...

Old Soldier,

I looked at the NSA website and there is no mention of the Department of Defense. I went to the DOD website and there is no mention of the NSA. So I would dispute your assertion that NSA is a branch of DOD. It is part of the "intelligence community" like the CIA. However, the NSA is directly responsible to the president. This is all beside the point. I highlighted the military phrase to emphasise that the president in NOT the CINC of the country.

The budget of the armed forces is passed by the Congress. Would it be unconstitutional for the Congress to pass a defense budget lower than what the president has requested?

In the 28 years of FISA's existence, nobody has questioned it's legality. Administrations and Congresses of both parties have amended it. Why would these administrations, including the current one, follow it and add to it if it were unlawful? That doesn't make sense.

There is no way for anyone to tell if their rights have been violated since the program bypasses any court oversight. No accuser can "prove conclusively" that the accused has broken the law. That's the point.

However, the administration has admitted that it has broken the law. It says it has gathered electronic intelligence involving US persons without a FISA court warrant. That is against the law, a law which has been unquestioned for 28 years.

old soldier said...

Jim,

Try: http://www.intelligence.gov/1-members.shtml It clearly states, "Three major intelligence agencies in the Department of Defense (DoD) - the National Security Agency (NSA), the National Reconnaissance Office (NRO), and the National Geospatial-Intelligence Agency (NGA) - absorb the larger part of the national intelligence budget."

It really doesn't matter how many times an act has been ammended, a court may find it "unconstitutional". IMHO FISA has a high probability of being in that category.

"It says it has gathered electronic intelligence involving US persons without a FISA court warrant."

If the call went to or came from an overseas location and was monitored from an NSA location outside the US, and one of the subjects is strongly suspected of being al-Qaeda supporting, it was perfectly legal (even under FISA) without a warrant.

Why won't people accept the possibility that it really is the bad guys that the NSA is after and that they care nothing about the average Joe? There are not enough people in the NSA to make a dragnet type program pay off. All efforts and assets must be brought to bear on high payoff targets like al-Qaeda associating terrorists - not average citizens.

Jim said...

Old Soldier,

Read your source and it supports your assertion that NSA is part of DOD. That said, my original point is that the president is not the CINC of the United States. He is CINC of the military. And I only made that point in my early post because some people say that he IS CINC of the country by which they infer certain powers over the US which actually only would apply to the military.

Moving on, the myth that somehow there is a "collection point" outside the United States which can legally without a warrant conduct surveillance on anybody including a US person (citizen or legal alien) inside the US is just that: a myth. Where the "collection" takes place is irrelevant. What is relevant is whether the US person at one end of the communication is physically located in the US. I cite the NSA website and it's post of a statement by the NSA director which states:

Under FISA, NSA may only target communications of a U.S. person in the United States [emphasis added] if a federal judge finds probable cause to believe that the U.S. person is an agent of a foreign power.

Electronic surveillance "outside the U.S." refers to surveillance of a "U.S. person abroad." By executive order, this surveillance does not require FISA oversight but does require permission of the Attorney General.

I repeat: No one that I know of objects to the type of surveillance or the targets. They just want it done legally with the proper oversight of the Congress and the courts as mandated by law and executive order. FISA has been challenged at least three times in district courts, ironically by civil rights groups, and in each case the courts have found FISA to be constitutional.

Why don't people accept the possibility that the NSA is really after the bad guys? They no doubt ARE after the bad guys. But I don't know for sure. I'm being asked to trust a president with no record of success in anything prior to election as governor of Texas. I'm being asked to trust the most powerful and most secretive vice-president in the history of the United States. I don't. Would YOU trust Hillary Clinton and Howard Dean?

Mark said...

No record of success? He owned the Texas Rangers Baseball club. He owned oil companies. Are those considered failures?

Jim said...

Have you ever read anything about Bush's career history? He was set up in the "awl bidness" by friends of his father. He drilled a bunch of dry holes. He was eventually bailed out by more friends of his father. He sold his shares of Harkin days before the stock tanked (and he was on the audit committee of the company) and failed to report the transaction until well after the required period.

His record as baseball club owner was not spectacular either. I can detail that too, but not tonight.

Erudite Redneck said...

No -- NO -- record of business success by Bush. None. Owning a biz is not running a biz, and it for dang sure is not running a biz well.

He was in fact, born with a silver foot in his mouth, as Ann Richards said. Why working people support him boggles.

Jim said...

Old soldier, you seem to think that Congress can not make any laws restricting the powers of the president. I quote from Article I Section 8 of the US Constitution:

The Congress shall have the power . . . To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

I think that speaks for itself.