Federal judge rules NSA wiretapping program unconstitutional

[thaiphoon]

Hi all -

Still busy with the Alpha (and soon to be Beta) testing of our program so I haven't visited this site in months (let alone post anything). Just came back for a quick glance at the boards and noticed this gem of a thread.

That being said, there is so much ill-thought rhetoric and misinterpretations going on in this thread by the anti-wiretap crowd its hard to wade through it all in the limited time I have. So I'll point those who would disagree with my arguments to my previous dialogue with Crazyhorse1 on this VERY subject !! This should be found in the Smack Talk forum.

Here it is ...

http://www.thehogs.net/forum/viewtopic.php?t=18161&postdays=0&postorder=asc&start=10

So when you're done with reading that, lets find out who Anna Diggs Taylor is and some of the crazy amatuerish parts of this suit...

1.) She's a Carter appointee (our worst president - ever ... IMHO)

2.) She tried to rig http://www.opinionjournal.com/columnists/tbray/?id=110001857 the outcome of an affirmative action case

3.) In this particular case she apparently suddenly found the First amendment right to communicate privately overseas with enemy operatives plotting to murder Americans. This in the face of over 200 years of no such right being discovered. Imagine that...

4.) She ignored the well established law of standing-to-sue. This case should not have proceeded but if you read her statements they bely her intention. She gyrated herself to create standing where none exist so this could be heard by her court - so she could then strike it down. She wrote that if the plaintiffs lacked standing “the President’s action in warrantless wiretapping . . . would be immunized from judicial scrutiny.” Judicial scrutiny is the opposite of what was supposed to happen here because the Supreme Court ruled in 1991 that, in such cases as this, judges are to “presume that federal courts lack jurisdiction.”

5.) She ignored over 100 years of legal precedent — reaffirmed by the Supreme Court only a year ago — which holds that lawsuits may not go forward if they run an undue risk of impairing the national defense by publicly revealing our intelligence gathering capabilities.

6.) She apparently forgot that Americans have no reasonable expectation of privacy when trying to communicate with people outside the United States. U.S. privacy law does not apply here my friends. Do some research on it and then do research on the difference between international law and domestic law and you'll begin to understand why it doesn't.

7.) Her bizarre assertion that the Fourth Amendment requires prior warrants for all searches. If you doubt me --> Review her arguments that any search without a warrant is "unreasonable".

And for those who doubt me that searches can be conducted without a warrant and that this is established law- here is a partial list of those searches that DO NOT REQUIRE A WARRANT !!!

The ability to conduct warrantless searches are powers long recognized by FEDERAL LAW which allow authorites to;

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car—regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search—including a strip search—at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

Conduct warrantless searches of junkyards maintained by American citizens;

Conduct warrantless searches of docks maintained by American citizens;

Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Conduct warrantless searches of auto-repair shops operated by American citizens;

Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Conduct warrantless drug screening of American citizens who are school officials;

Conduct warrantless drug screening of American citizens who are school students;

Conduct warrantless searches of American citizens who are on bail, probation or parole.

All of those are allowed without a warrant...

Oh and JSB22 you said this...

Do you believe that any one branch of government should be able to perform functions with no checks on its authority from the other branches, even when the Constitution expressly requires those checks?

There are checks and balances here my friend. Congress knew of this program. Additionally, the check our system has designed for national-security matters is political, not judicial. It involves the right of all citizens collectively to self preservation. The courts are not there to tell us how to live and tell the other branches how to do their jobs. They are there to redress concrete injuries that directly and uniquely affect individuals. If the government is doing something (such as monitoring al Qaeda’s international communications) that affects all of us more or less the same way, that is not a legal problem. It is a political issue.

Political issues get resolved by political actors. In this situation the Framers of the Constitution trusted Americans, not judges for the remedy. If a president's policy pendulum swings too far in the direction of either civil liberties or national security, the Americans (who are consequently imperiled or intimidated) have the final "check". They can vote him out of office. If the president really shreds the Constitution (as opposed to using his Article II powers to quell enemies and save American lives as I discussed in my earlier thread with Crazyhorse1), citizens can spur congress to impeach him. But here again - impeachment is a political remedy.

Congress, meanwhile, can;

1.) subpoena experts,
2.) convene hearings,
3.) make findings, and
4.) enact laws which balance liberty and security.

If legislators believe a national security initiative goes too far, they can end it by de-funding it … and face the wrath of their constituents who may well decide that increased safety is worth sacrificing a privacy, which is hypothetical by the way, because most Americans aren’t all that interested in chatting privately with Osam Bin Laden.

The funny thing here is that Democrats can talk all they want about the "illegal" NSA program. But not one so far has publicly endorsed defunding it have they??

As for this case...

This one's gonna get reversed on appeal...

This judge is a joke. A first year law student would be laughed out of the classroom for such legal reasoning - let alone a federal judge... yet another legacy and reason why Jimmy Carter is the worst president in Us history IMHO...

Have a nice day...

Oh and as before - I might not get back to you right away so if anyone wants to continue to argue that the NSA wiretap program is unconstituional please do so. I will eventually get back here and address those specific arguments as well.

[Deadskins]

I'm not even going to bother trying to address all of that line by line. Taiphoon, you are up to your old tricks, but it takes more than being so verbose to pull the wool over my eyes. None of those warrantless searches are applicable to this case. Even if they were applicable, there is always probable cause, or the expectation of a warrant in the immediate future, which makes the warrantless nature of the search moot.

No state secrets need be revealed to get a warrant from the FISA court. Secrecy is it's primary function. Do you even know what FISA means? Of course you do, but you avoid any logic that throws a wrench into your propagandized world view. Additionally, a FISA warrant can be obtained well after the surveillance has taken place, and with the total secrecy that the Foreign Intelligence Surveillance Act requires. And they only notified Congress, when the program was revealed, and even then did not give the full disclosure to all the relevant members as required by law. Quit trying to pee down my leg and tell me it's raining.

PS Just out of curiosity, in your opinion, who was/is our greatest president?

PPS I loved the start of the first sentence in the WSJ opinion piece.

Rumors in Washington has [sic] it that the House Judiciary Committee may hold hearings...

How's that for some fine journalism? There are rumors that something may happen.

[yupchagee]

I'm not even going to bother trying to address all of that line by line.

Because you can't.

[Deadskins]

I'm not even going to bother trying to address all of that line by line.

Because you can't.

I refuted everything, just not line by line. But of course...
You are right! How could I have been so blind? It's all so clear now.

[thaiphoon]

Ok I have some time to kill so I figure I'll shoot your arguments out of the water...

I'm not even going to bother trying to address all of that line by line.

As yup says... b/c you can't.

Taiphoon, you are up to your old tricks, but it takes more than being so verbose to pull the wool over my eyes.

Ah yes...there are none so blind as those who will not see...apparently because some dastardly villain has some wool...eh ??

None of those warrantless searches are applicable to this case. Even if they were applicable, there is always probable cause, or the expectation of a warrant in the immediate future, which makes the warrantless nature of the search moot.

Wrong again...thye are applicable as they reveal that warrantless searches ARE ALLOWED by Federal law !! Pres. Bush didn't just all of a sudden start the trend here ya know?? Over the years federal courts have recognized the president's inherit constitutional authority to protect our nation from foreign threats against our national security without the requirement of warrants.

Since you so far have refused to understand this I'll state it again...

Over the years federal courts have recognized the president's inherit constitutional authority to protect our nation from foreign threats against our national security without the requirement of warrants.

If you doubt me then take a look at some of the cases:

United States v. Truong, 629 F.2d 908 (4th Cir. 1980); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974) (en banc); United States v. Brown , 484 F.2d 418 (5th Cir. 1973).

The Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government’s legitimate needs (such as protecting us from attack) against other constitutional interests.

No state secrets need be revealed to get a warrant from the FISA court.

But they do if this goes to court and a judge follows legal procedures my friend...again in cases like this the courts are supposed to presume they lack jurisdiction where this is the case so she never should have heard the case. But having decided to hear it (erroneously since the plaintiffs lacked standing to sue IMHO)the judge ignored such legal precedent. It is impossible to decide the Fourth and First Amendment issues in the case without detailed, factual knowledge of precisely what the government is doing. apparently the judge ignored such basic rules of legal procedure (thankfully for our state secrets tho).

Do you even know what FISA means?

Sure do...However Judge Taylor (and you and your anti-wiretap comrades )apparently doesn't. Based upon your next statement I know this is true...

You said...

Additionally, a FISA warrant can be obtained well after the surveillance has taken place, and with the total secrecy that the Foreign Intelligence Surveillance Act requires.

You and Judge Taylor make the same mistake many talking heads in the media make (since when does the MSM get anything right anyway?) when discussing this case in assuming that that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply not true. NSA cannot lawfully (under FISA) listen to a single word of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops. Had she held substantive hearings the way she was supposed to according to proper jurisprudence she would have discovered this.

Of course you do, but you avoid any logic that throws a wrench into your propagandized world view.

Mirror...mirror on the wall...please let JSPB22 know that he's talking to himself...

And they only notified Congress, when the program was revealed, and even then did not give the full disclosure to all the relevant members as required by law. Quit trying to pee down my leg and tell me it's raining.

Which law?? The statute or the constitution? Guess which one trumps which? Do you have any inkling of the difference? See my earlier posts with Crazyhorse1 in the link I included in my earlier post to see the difference.

Want further proof this is gonna get reversed??

The judge doesn't understand the 4th amendment. She states in her ruling that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” She cites the landmark 1972 electronic-surveillance decision ( the Keith case) as her guiding decision to back that statement up. But this is wrong-headed...ya wanna know why?? The Keith case makes clear that, though it establishes a warrant requirement for purely domestic security cases...

(Now...you're probably dancing right now thinking I just contradicted myself (again because you either can't read or still think this is a purely domestic surveillance program)...)

But ...

Here's what the rest of the Keith opinion states...

"the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”

(uh - oh ...some has slowed his dancing down I see...)

Now while this is not 110% conclusive as it leave the case open (somewhat), a post-FISA case (also cited by Judge Taylor herself (Falvey)) contradicts her claimed warrant requirement. The Falvey court found the following;

“When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”

(he's now stopped dancing altogether - realizing that I've invalidated his argument)

Game...

Set...

Match...

Buh bye ...

PS Just out of curiosity, in your opinion, who was/is our greatest president?

I have a few tied with each other and a few that come close. I'd say Lincoln and Reagan are pretty much neck and neck for the top prize and FDR is in the mix for 2nd.

The worst tho is without a doubt Carter... that superlative goes to him and him alone.

i have no doubt you'll disagree with me tho..

PPS I loved the start of the first sentence in the WSJ opinion piece.
Quote:
Rumors in Washington has [sic] it that the House Judiciary Committee may hold hearings...
How's that for some fine journalism? There are rumors that something may happen.

Stories in Washington start with rumors... you mean you're saying that made up stories like the NYT (Jason Blair ring a bell?) and Washington Post constitute real journalism instead??

[crazyhorse1]

I'm not even going to bother trying to address all of that line by line.

Because you can't.

JPB22 hands you your head every time he/she talks to you. He or she is not only dead correct on facts 99.9% of the time, but he/she uses impeccable logic. I often log on just to watch the carnage.

[yupchagee]

I'm not even going to bother trying to address all of that line by line.

Because you can't.

JPB22 hands you your head every time he/she talks to you. He or she is not only dead correct on facts 99.9% of the time, but he/she uses impeccable logic. I often log on just to watch the carnage.

My head is quite firmly attached. As for "facts" MIne are real, not made up. As for Logic, neither you nor he has a clue what it is.

[Deadskins]

I'll do this one last time, just for CH1's reading pleasure (thanks for the support, CH. BTW, I'm definitely a "he").

Ok I have some time to kill so I figure I'll shoot your arguments out of the water...

You couldn't figure that with an abacus and a slide rule.

I'm not even going to bother trying to address all of that line by line.

As yup says... b/c you can't.

No, because you prattle on about another argument you had with crazyhorse way back when, and expect me to go back a re-read the same old talking points which I read, and disregarded, at the time they were written. You ramble on at great length, as if saying a lot somehow means you have a lot to say. I just did not feel it necessary to rehash the last 3 months of arguments that you missed.

Taiphoon, you are up to your old tricks, but it takes more than being so verbose to pull the wool over my eyes.

Ah yes...there are none so blind as those who will not see...apparently because some dastardly villain has some wool...eh ??

It's a common expression, but if you consider yourself a dastardly villain, then far be it from me to argue with you on that matter.

None of those warrantless searches are applicable to this case. Even if they were applicable, there is always probable cause, or the expectation of a warrant in the immediate future, which makes the warrantless nature of the search moot.

Wrong again...thye are applicable as they reveal that warrantless searches ARE ALLOWED by Federal law !! Pres. Bush didn't just all of a sudden start the trend here ya know?? Over the years federal courts have recognized the president's inherit constitutional authority to protect our nation from foreign threats against our national security without the requirement of warrants.

Since you so far have refused to understand this I'll state it again...

Over the years federal courts have recognized the president's inherit constitutional authority to protect our nation from foreign threats against our national security without the requirement of warrants.

If you doubt me then take a look at some of the cases:

United States v. Truong, 629 F.2d 908 (4th Cir. 1980); United States v. Buck, 548 F.2d 871 (9th Cir. 1977); United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974) (en banc); United States v. Brown , 484 F.2d 418 (5th Cir. 1973).

The Fourth Amendment does not always require a prior warrant for government searches. Rather, the need for warrants depends on a balancing of the government’s legitimate needs (such as protecting us from attack) against other constitutional interests.

Whew, you said a mouthful there. Of all the warrantless searches you cited, only this one:

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

is partially applicable to this case. In others there is still the need for probable cause, or the expectation of a warrant later on. And since you don't provide any links, for all I know you pulled some of them out of your butt. Anyway, the point is moot, because you are throwing around a lot of case law and examples of warrantless searches to obfuscate the true crux of this matter. In this case it is the FISA act of 1978 that applies. Now, I'm not going to quote the entire law, not because I can't, yupster, but because I find a concise argument to be much more effective. So now I will point you to TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1802 Electronic surveillance authorization without court order, in which I have highlighted particularly relevant passages.

(1) 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 if the Attorney General certifies in writing under oath that—
(A) the electronic surveillance is solely directed at—
(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and
if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

http://www4.law.cornell.edu/uscode/html ... -000-.html

No state secrets need be revealed to get a warrant from the FISA court.

But they do if this goes to court and a judge follows legal procedures my friend...again in cases like this the courts are supposed to presume they lack jurisdiction where this is the case so she never should have heard the case. But having decided to hear it (erroneously since the plaintiffs lacked standing to sue IMHO)the judge ignored such legal precedent. It is impossible to decide the Fourth and First Amendment issues in the case without detailed, factual knowledge of precisely what the government is doing. apparently the judge ignored such basic rules of legal procedure (thankfully for our state secrets tho).

What does that have to do with the issue? Once again, you go off on a tangential rant and miss the entire crux of the biscuit. Had the Bush administration simply followed the FISA law, this case would not have ever come up. Hence my followup question:

Do you even know what FISA means?

Sure do...However Judge Taylor (and you and your anti-wiretap comrades )apparently doesn't. Based upon your next statement I know this is true...

You said...

Additionally, a FISA warrant can be obtained well after the surveillance has taken place, and with the total secrecy that the Foreign Intelligence Surveillance Act requires.

You and Judge Taylor make the same mistake many talking heads in the media make (since when does the MSM get anything right anyway?) when discussing this case in assuming that that the government can, under FISA, listen in on conversations for 72 hours without meeting FISA’s substantive and procedural tests. This is simply not true. NSA cannot lawfully (under FISA) listen to a single word of a covered communication until it can prove to the Attorney General (usually in writing) that it can jump through each and every one of FISA’s procedural and substantive hoops. Had she held substantive hearings the way she was supposed to according to proper jurisprudence she would have discovered this.

So, overlooking the fact that you mistook a one year time-frame for 72 hours, your argument is: that since the NSA couldn't show probable cause to conduct these wiretaps, that they shouldn't have to?

Of course you do, but you avoid any logic that throws a wrench into your propagandized world view.

Mirror...mirror on the wall...please let JSPB22 know that he's talking to himself...

Oh, I think there are plenty of people here who see through the BS.

And they only notified Congress, when the program was revealed, and even then did not give the full disclosure to all the relevant members as required by law. Quit trying to pee down my leg and tell me it's raining.

Which law?? The statute or the constitution? Guess which one trumps which? Do you have any inkling of the difference? See my earlier posts with Crazyhorse1 in the link I included in my earlier post to see the difference.

I read it all the first time. Every single US law that has ever been written was written inside the framework of the Constitution. That is the Judicial branch's oversight responsibility, to ensure that the laws that are written by the Legislative branch, are written within the framework of the Constitution. The Executive branch is supposed to faithfully execute these laws, not try to circumvent them.

Want further proof this is gonna get reversed??

The judge doesn't understand the 4th amendment. She states in her ruling that the Fourth Amendment, in all cases, “requires prior warrants for any reasonable search, based upon prior-existing probable cause.” She cites the landmark 1972 electronic-surveillance decision ( the Keith case) as her guiding decision to back that statement up. But this is wrong-headed...ya wanna know why?? The Keith case makes clear that, though it establishes a warrant requirement for purely domestic security cases...

(Now...you're probably dancing right now thinking I just contradicted myself (again because you either can't read or still think this is a purely domestic surveillance program)...)

But ...

Here's what the rest of the Keith opinion states...

"the instant case requires no judgment on the scope of the President’s surveillance power with respect to the activities of foreign powers, within or without this country.”

(uh - oh ...some has slowed his dancing down I see...)

Now while this is not 110% conclusive as it leave the case open (somewhat), a post-FISA case (also cited by Judge Taylor herself (Falvey)) contradicts her claimed warrant requirement. The Falvey court found the following;

“When, therefore, the President has, as his primary purpose, the accumulation of foreign intelligence information, his exercise of Article II power to conduct foreign affairs is not constitutionally hamstrung by the need to obtain prior judicial approval before engaging in wiretapping.”

(he's now stopped dancing altogether - realizing that I've invalidated his argument)

Game...

Set...

Match...

Buh bye ...

Sorry, I dance on with confidence in my keen sense of when the whole truth is not being told. As with all propaganda, there is, at its heart, some truth. But before you close the door on this argument, smug that you have bested me, you may want to read the next few lines of the Falvey decision, which were not provided in your propagandized version.

While the executive power to conduct foreign affairs exempts the President from the warrant requirement when foreign surveillance is conducted, the President is not entirely free of the constraints of the Fourth Amendment. The search and seizure resulting from the surveillance must still be reasonable. With the enactment of FISA, . . . Congress has fashioned a statute for foreign surveillance that fully comports with the Fourth Amendment.

Ouch! Sucks to be you.

PS Just out of curiosity, in your opinion, who was/is our greatest president?

I have a few tied with each other and a few that come close. I'd say Lincoln and Reagan are pretty much neck and neck for the top prize and FDR is in the mix for 2nd.

The worst tho is without a doubt Carter... that superlative goes to him and him alone.

i have no doubt you'll disagree with me tho..

I'll let your selections speak for themselves.

PPS I loved the start of the first sentence in the WSJ opinion piece.
Quote:
Rumors in Washington has [sic] it that the House Judiciary Committee may hold hearings...
How's that for some fine journalism? There are rumors that something may happen.

Stories in Washington start with rumors... you mean you're saying that made up stories like the NYT (Jason Blair ring a bell?) and Washington Post constitute real journalism instead??

Because you don't like the decision, but you can't logically or legally challenge it, you attack the judge and the President who put her on the bench. I should say, rather, that you cite an opinion piece that leads with rumors of possible events in its opening sentence. Then, when I call you on it, you cite Jason Blair and the Washington Post as evidence to the contrary? I look at all establishment media sources with a skeptical eye.

The football season is once again upon us, so I'll be spending less time in the Lounge, (wait, your merry jig is premature), but I'll still try to find the time to correct the falsehoods you try to propagate here. Awwww, who's stopped dancing now?

[Deadskins]

CH,
I thought you might like this post that came up in one of the google searches I performed while writing my last response in this thread. It seems to be right up your alley.

A pale surrealistic glow accents the detail of cold black lines, delineating the black hearted egotism and absolute power sought with no respect or remorse for those that stand in their way. The pervasive dynamic of attack mode divisiveness permeates the spirits of the NeoCon. Battles not fought head on but with character assassination of the opponent with little more than hypocritical lip service to issues. Hidden agenda's that are as cold, imperial and deceitful as their name projects. Lies and deception disbursed on the winds of politically loaded keywords are framed in ways to keep the naive and gullible, captured and enthralled in false pretense, ignorant of the true intentions and dire consequences of their surrender of power to the forces of the 21st Century's American Axis of Evil. The cold black elephant is symbolic of the republican sacrifice that was made to the rise of the NeoCon. Within a few short years we have found ourselves an ignorant, arrogant child of history, repeating mistakes made in the past, with subsequently as great or greater loss of integrity, and yet again the ultimate sacrifice of the blood of valiant American warriors fighting a faceless enemy in yet another contrived war based on lies. The prostitution of morals and ethics for nationalistic knee-jerk reactionaries has promulgated through the rank and file apologists and excusers. The vilified hate for those who see the damage being done will yet again be the undoing of their agenda. As the American public awakens to facts concerning this corrupt administration which has never before been equaled in our nation's history, the agenda has been derailed. As the blinders come off, their propaganda will carry less and less weight while their transparency will intensify. As the smoke and mirrors fade, the true path will once again be forged by those of us who are willing to stand up and let them know that we will not tolerate their excuses or the actions of those they have enabled. History will repeat itself, much to the chagrin of the NeoCons.

[yupchagee]

I read it all the first time. Every single US law that has ever been written was written inside the framework of the Constitution. That is the Judicial branch's oversight responsibility, to ensure that the laws that are written by the Legislative branch, are written within the framework of the Constitution. The Executive branch is supposed to faithfully execute these laws, not try to circumvent them.

Exactly where does the Constitution say this?

[Deadskins]

I read it all the first time. Every single US law that has ever been written was written inside the framework of the Constitution. That is the Judicial branch's oversight responsibility, to ensure that the laws that are written by the Legislative branch, are written within the framework of the Constitution. The Executive branch is supposed to faithfully execute these laws, not try to circumvent them.

Exactly where does the Constitution say this?

I read it all the first time.

It doesn't. I said that.

Every single US law that has ever been written was written inside the framework of the Constitution.

That's me, too.

That is the Judicial branch's oversight responsibility, to ensure that the laws that are written by the Legislative branch, are written within the framework of the Constitution.

Again, my wording, but I am paraphrasing the ability of the courts to rule a law to be unconstitutional.

The Executive branch is supposed to faithfully execute these laws, not try to circumvent them.

I borrowed a turn of phrase from the Presidential Oath of Office here. I guess that went over you head.

But I digress,
You are right! How could I have been so blind? It's all so clear now.

[yupchagee]

JSPB22 wrote:
Every single US law that has ever been written was written inside the framework of the Constitution.

That's me, too.
JSPB22 wrote:
That is the Judicial branch's oversight responsibility, to ensure that the laws that are written by the Legislative branch, are written within the framework of the Constitution.

Again, my wording, but I am paraphrasing the ability of the courts to rule a law to be unconstitutional.

You didn't even address my question. Where in the Constitution does it say that the courts have the authority to declare laws unconstitutional? I know they have been doing this since the time of John Marshall. I'm just asking where the constitution gives them this power.

[Deadskins]

JSPB22 wrote:
Every single US law that has ever been written was written inside the framework of the Constitution.

That's me, too.
JSPB22 wrote:
That is the Judicial branch's oversight responsibility, to ensure that the laws that are written by the Legislative branch, are written within the framework of the Constitution.

Again, my wording, but I am paraphrasing the ability of the courts to rule a law to be unconstitutional.

You didn't even address my question. Where in the Constitution does it say that the courts have the authority to declare laws unconstitutional? I know they have been doing this since the time of John Marshall. I'm just asking where the constitution gives them this power.

The Congress shall have 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.

and

U.S. Const. art. III, § 2 Clause 2
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

and that power was broadened by the

Judiciary Act of 1789, § 13
"The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts . . . and writs of mandamus . . to any courts appointed, or persons holding office, under the authority of the United States."

But like you said, it was not really established until Marbury v. Madison in 1803, which was presided over by Chief Justice John Marshall. This decision made the three branches of government truly co-equal. Are you saying the courts don't, or shouldn't have this power, which has been established for over 200 years?

[yupchagee]

JSPB22 wrote:
Every single US law that has ever been written was written inside the framework of the Constitution.

That's me, too.
JSPB22 wrote:
That is the Judicial branch's oversight responsibility, to ensure that the laws that are written by the Legislative branch, are written within the framework of the Constitution.

Again, my wording, but I am paraphrasing the ability of the courts to rule a law to be unconstitutional.

You didn't even address my question. Where in the Constitution does it say that the courts have the authority to declare laws unconstitutional? I know they have been doing this since the time of John Marshall. I'm just asking where the constitution gives them this power.

The Congress shall have 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.

and

U.S. Const. art. III, § 2 Clause 2
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases [within the judicial power of the United States], the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

and that power was broadened by the

Judiciary Act of 1789, § 13
"The Supreme Court shall also have appellate jurisdiction from the circuit courts and courts of the several states, in the cases herein after provided for; and shall have power to issue writs of prohibition to the district courts . . . and writs of mandamus . . to any courts appointed, or persons holding office, under the authority of the United States."

But like you said, it was not really established until Marbury v. Madison in 1803, which was presided over by Chief Justice John Marshall. This decision made the three branches of government truly co-equal. Are you saying the courts don't, or shouldn't have this power, which has been established for over 200 years?

I'm saying that it isn't in the Constitution as I read it. I'll admit to being uncomfortable with so much power in the hands of unelected, almost unaccountable judges. I would rather they stick to interpretation of the law & refrain from legislating & executing laws.

Marbury v Madison may have made the judiciary equal to the other 2 branches, but somewhere along the line they seen to have established primacy. Like I said, they aren't elected. The only accountability is impeachment, & that is cumbersome. I can't recall a judge being impeached for abuse of powers.

[thaiphoon]

Still dancing my friend... you mistook your foul tip for a home run...

No, because you prattle on about another argument you had with crazyhorse way back when, and expect me to go back a re-read the same old talking points which I read, and disregarded, at the time they were written. You ramble on at great length, as if saying a lot somehow means you have a lot to say. I just did not feel it necessary to rehash the last 3 months of arguments that you missed.

Its the same argument you're having here. You just fail to realize that. I've posted what is relevant to the issue.

You then completely ignore my statement concerning the individual warrantless searches by stating this...

Whew, you said a mouthful there. Of all the warrantless searches you cited, only this one:

Quote:
Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

is partially applicable to this case. In others there is still the need for probable cause, or the expectation of a warrant later on

Huh?? When did I say those were the only warrantless searches allowed?? Go back up to my post... then read where it says its a PARTIAL list. This means that despite your and other's caterwailing (about Bush's illegal warrantless searches) that warrantless searches CAN be executed and are allowed under US law. As for the expectation of a warrant later on you're trying to erect a straw man here. The biggest argument in the case was that the warrantless surveillance was being conducted in the first place. The argument against the NSA program itself from the Left was that it didn't get a warrant beforehand. Judge Taylor even stated her opinion that all searches without a warrant are "unreasonable". Clearly legal precedent is against her wouldn't you agree??

Lets go on to the FISA statute itself... you neglect to post the following definitions in TITLE 50>CHAPTER 36>SUBCHAPTER I>§ 1801

“Foreign power” means—
(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;
(5) a foreign-based political organization, not substantially composed of United States persons; or
(6) an entity that is directed and controlled by a foreign government or governments.

or this one...

(e) “Foreign intelligence information” means—
(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against—
(A) actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power;
(B) sabotage or international terrorism by a foreign power or an agent of a foreign power; or
(C) clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or
(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to—
(A) the national defense or the security of the United States; or
(B) the conduct of the foreign affairs of the United States.

Lest you also omit this I'll include this link

http://www.law.cornell.edu/uscode/html/ ... -000-.html

It states...

§ 1811. Authorization during time of war

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.

You see? The contents of the communication CAN be obtained from a United States person per the definitions in section 1801 and according to section 1811. Also before you go ape abotu the 15 days it appears that the case law has not addressed that it can't be renewed. Therefore he is operating within the bounds of FISA.

Still... you forget that in 2002 ( after 2 decades of FISA's operation) the Foreign Intelligence Court of Review (the highest and most specialized court ever to review a FISA case) stated that presidents maintain inherent constitutional authority despite the terms of FISA.


You then follow with this doozy..

read it all the first time. Every single US law that has ever been written was written inside the framework of the Constitution. That is the Judicial branch's oversight responsibility, to ensure that the laws that are written by the Legislative branch, are written within the framework of the Constitution. The Executive branch is supposed to faithfully execute these laws, not try to circumvent them

The funny thing here is that this particular court and this particular judge is emphasizing the importance of holding one branch of the federal government (executive) to the strict limits of the rule of law while sitting in another branch of the federal government and ignoring the rule of law there. I've posted why she was wrong to even take the case. I've pointed out her ignorance of the standing to sue settled law.

Judge Taylor's own words belie her ignorance as well. She states;

"There are no hereditary kings in America and no powers not created by the Constitution."

Pres. Bush is not stating he is above the law. he is making an argument about the breadth of his powers under the law (both constitutional and statutory).

As Yupchagee points out there are three branches of government. We have been so accustomed to accepting that a judges word is what counts that we overlook the bigger picture. The Judiciary gets to point out unconstituionality as a result of Marbury v Madison as you both have discussed. BUT...hold the phone...The judges have this constitutional power only because they operate via a judicial method that restricts them to addressing controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law. Chief Justice John Marshall wrote in Marbury indicating that we trust the judge to say what the law is "because the judge must of necessity expound and interpret" in order to decide cases.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. Judge Taylor did not do that. She ignored the long settled case law of standing to sue. Judge Taylor slammed past two of the three pillars of standing doctrine to get to the outcome she desired from the beginning.

So if she is going to ignore her constitutional duty and her legal obligations and therefore show us that she thinks the law lacks substance and therefore can enact her own political opinion, it is the height of irony that she states that the President is going above the law when he is quite rightly exercising his constitutional duties.

As I've said before, the president is not above the law, but neither is any other branch. The highest law in the United States is the Constitution. Congress is not above that law. And it if enacts a statute, a "law," that undermines or alters the Constitution's structure, it is Congress that has placed itself above the law.

When Congress enacts a law that attempts to regulate an activity committed by the Constitution to state control, that law is struck down. We do not say the states have put themselves above the law by challenging federal legislation since that was a right reserved by the states when the Constitution was formed. So, when Congress enacts a law that attempts to regulate a power committed by the Constitution to the president, that law is unconstitutional.

Congress tried to do exactly that in 1876. It passed a law trying to make its approval necessary before the president could remove certain executive-branch officials. A half-century later, the Supreme Court struck that law down in Myers v. United States (1926). President Taft was not putting himself "above the law" by firing someone within his constitutional chain-of-command in spite of the 1876 statute. Instead, Congress had placed itself above the law by ignoring the Constitution's separation of powers by attempting (through legislation) to dilute the executive's constitutional power.

Congress did so again with FISA. Through FISA Congress sought to make judicial approval, on a legal standard of probable cause, a prerequisite to national-security eavesdropping (and, now, searches). FISA may not be unconstitutional in all its particulars but to the extent FISA limits the power of the commander-in-chief to conduct warfare (i.e. - to the extent it would transfer to judges the decision whether an essential incident of warfare may be used) it is no more constitutional than if it had put judges or Congress in charge of military target selection, or other battlefield decisions.


You then go on with this doozy...

Sorry, I dance on with confidence in my keen sense of when the whole truth is not being told. As with all propaganda, there is, at its heart, some truth. But before you close the door on this argument, smug that you have bested me, you may want to read the next few lines of the Falvey decision, which were not provided in your propagandized version.

Quote:
While the executive power to conduct foreign affairs exempts the President from the warrant requirement when foreign surveillance is conducted, the President is not entirely free of the constraints of the Fourth Amendment. The search and seizure resulting from the surveillance must still be reasonable. With the enactment of FISA, . . . Congress has fashioned a statute for foreign surveillance that fully comports with the Fourth Amendment.

Ouch! Sucks to be you.

Huh?? Why are you gloating? This does not invalidate my position. Look at the FISA statute... now look at my statements. The President's program is complying with the Constitution AND the FISA statute my friend. Additionally as I've pointed out the Foreign Intelligence Court of Review has already stated that the President maintains inherent constitutional authority despite the statutory authority and/or constraints of FISA.


You finish up your screed with this...

Because you don't like the decision, but you can't logically or legally challenge it, you attack the judge and the President who put her on the bench.

True: Your statement that I don't like the decision

False: Your assertion that I can't logically or legally challenge her decision. I have done so. Look at my previous post. The judge was required to oblige the legal precedent of legal standing - she did not. She was require to convene substantial evidentiary hearings. She did not. She misquotes precendents as well as misinterpreting the First and Fourth Amendment. That she is a prima facie case of an "activist judge" and that she was nominated by our worst president is only the icing on the cake.

I should say, rather, that you cite an opinion piece that leads with rumors of possible events in its opening sentence. Then, when I call you on it, you cite Jason Blair and the Washington Post as evidence to the contrary? I look at all establishment media sources with a skeptical eye.

You're erecting another straw man. You ignore the piece that delineates Judge Taylors attempt to rig an affirmative action case because of the mention that the Hill was abuzz about the possibility of Congress looking into her actions (hence the writer using the word "rumor" instead of quoting a source)?

The football season is once again upon us, so I'll be spending less time in the Lounge, (wait, your merry jig is premature), but I'll still try to find the time to correct the falsehoods you try to propagate here. Awwww, who's stopped dancing now?

Still dancing my friend. What you have to say has not invalidated my and Yupchagee's position.

Since you've ignored them... I'll leave you with the following from my previous arguments to CH1...

Let me test your imagination since you seem to be in fantasy-land. This is a natural extension of what you and CH1 are arguing so don't dismiss its absurdity as it is accurately reflecting the path you'd like us to go down. Here goes ...

Lets imagine we're at war... our local and regional military commanders in Iraq and Afghanistan develop a new strategy to go after the enemy. They develop contingency plans in case the first strike doesn't go as planned. They review all the available intelligence to make sure the plan will work. Then they move the units (air, sea and land) into position to perform the strike...and then ??

One of the Joint Chiefs of Staff has to go court to get its approval.

Why does he do this?? Well, to make sure their activities meet the approval of a federal judge, of course. After all, they are about to embark on gross invasions of privacy. Lives are about to be taken, liberty deprived, property seized. Surely, in modern America, such potentially overbearing executive branch behavior cannot be permitted without approval of a court, right? What about due process? Where is the probable cause?

The President is the commander in chief. He has the authority to employ all of the essential aspects of war fighting. This includes eavesdropping on potential enemy communications. This eavesdropping (whether you refer to it as "spying" or "electronic surveillance" or "signals intelligence") is as much a part of warfare as choosing which targets to bomb or attack or which enemies to detain.

Sorry my friend... I hope your view of how to protect ourselves never comes to pass. We'd all be dead.