Mickey

Luttig and the other Judges had access to all the info on Padilla, what was alleged when they were arguing he was an enemy combatant and what was alleged in the indictment. They were stumped as to why things changed so much and they wouldn't have been if there was an obvious reason for it such as the explanation you offer. I think its a stretch. You and I are speculating, the court wasn't, they had all the information right in front of them.

I was simply pointing out that the government couldn't have its cake and eat it by denying that they are trying to avoid review. Either the guy never should have been held oustside of normal channels in the first place or they are lying about not trying to manipulate their way in to a post-Alito confirmation court. If he is as dangerous as they have strenuously maintained over the years then he should still be in custody. If he wasn't, then he should have been processed in civilian criminal courts. It seems that whether or not he is a danger to the nation is a secondary one to their desire to get to a friendly court. The court was particularly concerned with the government having sworn up and down to certain facts over the last 3+ years and yet none of those allegations are appearing in the indictment. Where did those facts go? They have a process for holding those kinds of people, that is what the President declaring them to be "enemy combatants" is all about and in fact, this court approved that power. Sooner or later it was going to go before the Supreme Court and what is going on now is that they are trying to manipulate the situation so as to get the issue before a post-Alito confirmation court. The Supremes will decide the issue and we will just have to go on from there.

As near as I can figure it, the Padilla case involves the legitimacy of the President's power to declare and detain without trial a person declared to be an "enemy combatant". In September of this year, the Fourth Circ. Ct. of Appeals held that in fact the President has that power. The case has, since then, been headed for review by the Supreme Court. Apparently, the administration doesn't want the case reviewed by the Supreme Court at this time. Why? Who knows, maybe becuase they would rather wait until Alito is confirmed to enhance their chances of winning? I can only speculate. The problem of course was how do they keep the Padilla case out of the Supreme Court? Their solution was to decide that Padilla was no longer so dangerous that he needed to be detained in military custody by moving the court to withdraw their prior opinion that the President did have the power to detain people he has designated to be "enemy combatants" and release Padilla to civilian custody to be handled just like any other criminal defendant. Thus, there would be no justiciable controversey left for the Supreme's to decide. That would delay the issue ever getting to the Supreme Court any time soon allowing time for Alito to be confirmed. The Fourth Circuit didn't cooperate in the scheme with Judge Michael Luttig, a verrrry conservative Judge who was on the conservative short dream list of Superme Court nominees before Alito was selected wrote the opinion. Luttig stated that there was: "...an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court..." The court decided not to withdraw its decision and to deny the the request to transfer Padilla to civilian custody stating: "If the natural progression of this significant litigation to conclusion is to be pretermitted at this late date under these circumstances, we believe that decision should be made not by this court but, rather, by the Supreme Court of the United States." The government had held Padilla for 3 1/2 years, all along steadfastly claiming that "...it was imperative...[to]... the interest of national security that he be so held." Not long after the Court made its decision that the government could continue to detain Padilla, the government suddenly decided that he wasn't such a danger after all. It announced that he was going to be released to state authorities in Florida and the indictment issued was for far less dangerous crimes than those the government had alleged when it wanted to keep him in custody. In fact, the indictment made no mention of the acts which had served as the basis for the government's 3 + year detention of Padilla. The announcement that he was being moved to civilian custody was only two days before the government's brief in response to Padilla's petition for review by the Supreme Court was due. It instantly created a new argument it could use for denying the petition, that there was no longer a justiciable controversey. The court found that nothing in the government's arguments would "... justify the intentional mooting of the appeal of our decision to the Supreme Court after three and a half years of prosecuting this litigation and on the eve of final consideration of the issue by that court." Here is a link to the entire opinion.

A FISA Court Judge has resigned in protest over the President's illegal wiretaps apparently the other judges are just as concerned that Bush turned them into a "Potemkin Court". Senators Hegel and Snowe have joined up with Arlen Specter to lengthen the list of republicans calling for an investigation. Judge Resigns

Certainly he is not the first Presidential liar nor will he likely be the last. I just want clear agreement that he lied so that in the future I don't have to deal with a bunch of yelping attacks of partisanship when and if I refer to him as "Liar".

April 20, 2004, while in Buffalo, the President explained how the Patriot Act, wiretapping terrorist and the constitution work. He said: "...there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution." We now know that in fact, he was tapping without warrants. He lied. GWB in Buffalo While I appreciate his support of the Bills, the guy lied to our face. Anybody care?

They can tap without a warrant for one year but when they do that the AG must send a list of the targets to certain committee heads in congress and to the secret FISA Court. The alternative is to apply for the warrant within 72 hours and those applications are always granted, well, granted 99.9399% of the time anyway. The President didn't follow either procedure. They just tapped whoever they wanted to tap and didn't apply for a warrant within 72 hours nor informed the required persons that they were tapping so-and-so w/out a warrant. They had to do one or the other. He did neither.

Given the procedures under FISA which essentially allows taps of anyone anywhere for any reason without a warrant, how is it that complying with FISA would lead to the Constitution being reduced to ashes by our enemies? Under FISA they can tap like crazy without a warrant for 72 hours, giving plenty of time for a FISA judge to rule on the warrant application which is granted 99.399% of the time. Alternatively, they can tap for a whole year without a warrant, they just have to let certain committee heads in congress and the secret FISA court know about it. How would complying with that wide open rubber stamping warrant procedure have endangered our national security since, by this "reduced to ashes" hyperbole, you seem to think it would?

I don't think you understand what is going on here. FISA is what the President didn't follow. Are you arguing that FISA permits the President to nullify FISA? The way it works is that the Justice Department funnels the warrant applications to the FISA court. The AG certifies certain things in the applications and then sends them on to the court. When a non-US person is involved, there is one standard, another when it involves a US person. For non-US persons, they don't have to get a warrant, the AG can authorize the tap for up to a year. For those taps however, he does have to notify some congressional committees and the FISA court, all under seal. All that can be ignored, even for US persons, if they want for up to 72 hours. They can tap without a warrant (technically it is a court order, not a "warrant" but it has the same effect), all they want, whoever they want for whatever reason they want. However, they have to submit an application within 72 hours in those emergency cases. It really isn't all that complicated. You can tap a non-US person without ever getting a warrant for a year (it can be extended) you just have to let a few congressmen and the court know you are doing it. If you don't want to make that report to a few congressmen and the court, you can just start tapping away and submit an application within 72 hours which you can practically guatantee will be granted. Once you have the warrant you can continue tapping the target just as you had been for the last 72 hours. Typically, getting the warrant is so easy that they use the 72 hour deal where you just start tapping and then get your application together and the warrant issued and continue tapping under the warrant once it is issued. Originally it was 24 hours but the Patriot Act extended that to 72 hours. They can just go ahead and not bother even applying for a warrant but that procedure requires that they let people know they are doing that (a few committee chairmen and the FISA Court). In this case, the President didn't follow any of that. He just tapped who he wanted to tap, including US persons, without letting anyone know it (committe heads and the special court) nor did he use the 72 hour deal where you tap without a warrant at first but apply and get one within 3 days.

FISA is the procedure set up to handle this issue which the President by-passed. Based on the links you provided, since 2000 6,652 warrant applications were granted by the FISA courts and 4 were rejected. That means that the government got the warrant they wanted 99.9399% of the time.

Washington Times, Fox, Wall Street Journal, Coulter, Limbaugh, Hannity, Savage, etc, etc, etc. This President has been getting a reach around from a lot of "the media" for 5 years now. Even the New York Times, when it came to WMD's was stroking the administration raw with Judy Miller and her pre-war reporting. The press didn't make up Abu Grhaib, the lack of WMD's, renditions, the insurgency and its lethality, "mission accomplished", secret foreign prisons, "last throes", torture and now illegal wire taps.

Laws are made of words. This isn't a semantic debate. This is a fundamental question effecting the balance of powers between the courts, the congress and the President. As near as I can tell, the President is claiming that there is an unenumerated power, ie, one not listed or mentioned, in the Constitution that permits him to act with plenary authority when it comes to national security. Further, he seems to think that this unenumerated power comes with ancillary powers to do whatever he wants to do or says he needs to do to carry out his obligations with regard to national security. That is what is meant by Rice, the President and Gonzalez when they keep referring to the "President's Constitutional Authority". Gonzalez even said this in his confirmation hearings: SEN. DURBIN: But you believe he has that authority; he could ignore a law passed by this Congress, signed by this president or another one, and decide that it is unconstitutional and refuse to comply with that law? MR. GONZALES: Senator, again, you're asking me where the -- hypothetically, does that authority exist? And I guess I would have to say that hypothetically that authority may exist. In the Hamdi case the Administration argued that: The Government maintains that no explicit Congressional authorization [to detain enemy combatants] is required because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. This situation with the wire taps is really just the latest incarnation of the core argument by the administration that it has plenary authority to essentially ignore the Constitution and the other two branches of government in carrying out its unenumerated executive power regarding national security and the ancillary powers needed to carry out that objective.

Great, then when the Senate investigates this all that will come out and you can start a bunch of threads documenting the Moore-Rather-Bin Laden cabal. Look, I have asked a few times now, what national security scenario can you conjure up whereby tapping at will for three days giving you plenty of time to process a warrant application through classified courts with a record of always, always issuing the warrant would be too cumbersome, too slow, too unreliable or whatever, would not be sufficient? For bonus points, why wouldn't the administration silence the critics by simply stating that "There are certain situations involving national security that render even the lightening quick procedures under FISA to be too slow so we had no choice but to err on the side of caution."? I am open to an explanation that makes sense here as to why it was at all necessary. I have no interest in preserving even de minimus constitutional protections to terrorists. That is why I have never compained about FISA and the way it permits, essentially, gutting a specific constitutional provision (the whole Act probably should have been required to go through the Const. Amendment procedure to be enacted) in the name of national security. Please do not characterize this as a political debate between war hawks and pollyannish liberals. That is not the case and that is why you see people like Bob Barr and Arlen Specter raising hell about it as well as democrats. Its a simple question. We have a constitution and we have civil liberties and we also have national security concerns. As Tom and others have commented, naturally these things are going to come into conflict. To try and reslove that, we come up with FISA, a law to try and balance the two which in practice as well as theory, pretty much vitiates the constitutional prohibition against warrantless searches in the name of national security. Having done that, having swallowed that bitter pill for the sake of security, it is galling to find that with this administration, even that wholesale selling out of the Constitution for the sake of safety was not enough. When we raise those concerns once the news broke, we are then tagged as pollyannas unaware that there is a war on. Pardon us for wondering what the eff is going on here when bagging 99% of the Constitution was not enough. On top of all that, you have an administration whose credibility is in its last throes. I just find it very difficult to trust them on anything anymore. I would have thought that it would be ludicrous to think that any administration would tap journalists or political foes under the disguise of the war on terror but at this point, I am not putting anything past this bunch.

The universally accepted rule of construction is that "Whereas" clauses have zero legal effect, they are simply precatory. The real stuff starts after "Be it Resolved..."

Bib, it seems to me that you are applying the standards required to get a warrant in traditonal law enforcement cases. The standard here is set out in FISA and it is totally different. Much, much less strict.

We do realize there is a war on, that is why no one objects to secret warrants being issued simply for the asking by the FISA courts, even when they are issued after the fact. That practice would be freakishly unconstitutional outside the context of war if practiced domestically. So you see, we are willing to sacrifice constitutional niceties, about 99% of them when it comes to national security and wire taps. How typical that we are characterized as pollyannish and blissfully unaware that we are at war when we refuse to sacrifice that last 1%. Even then, we only want to preserve that last vestige of constitutional principles because there seems to be absolutely no need, given the custom made for national security process that was set up under FISA. The only justification I heard offered by the President was that they need to be able to act quickly, to be "fast on our feet". What is faster than being able to tap at will without a warrant from the git-go as permitted under FISA? That is a total BS expalanation. What would make more sense is that they are tapping people that not even the broadest rubber stamp of the FISA courts would consider worth tapping. I've asked a few times now why in the world being able to tap at will for 3 days leaving plenty of time to draft the warrant application and have it ruled on by a FISA Judge in a process that has awarded the requested warrant 100% of the time was somehow too cumbersome, too slow, or too unreliable, to bother with. I am still waiting for an answer. I think the answer is that they were tapping some people that not even the friendly folks at FISA would have permitted to be tapped. Who though, that is the million dollar question. Joker, joker, annnnnnd a triple !!!!! I'll take "journalists" for $200 Jack.

I think the hypotheticals you suggest are covered. They can tap anybody, anywhere without a warrant for 3 days. The FISA courts are classified so the application for a warrant on the target is secret. FISA always grants the application, always. The stat I heard was 1,222 granted out of 1,226 requested, all 4 rejects were granted on appeal. What you are suggesting in the hypos are possible scenarios where a tap would be necessary that likely would not be approved by the FISA court but I find that hard to believe given their record on this of 100% approval. Even if there were a legitimate fear of a needed warrant application being rejected despite the 1,226 out of 1,226, they could just apply, take the rejection and continue to tap anyway. The only penalty for doing it without the warrant is that the info is not admissible in court. That is the same result of the taps for which no application for a warrant was ever made. Identical results. I just can't come up with an explanation of this.

That would explain why Condi spent so much time pouring over surveillance footage. And we thought she was merely being vigilant.

If you can tap a "public phone" because it is "public", can you also film a stall in a "public" bathroom because it is "public" after all?

If you are saying that there were cicumstances where it was not possible to get a warrant, or a complete one, then that would be easy enough to defend. "We didn't use FISA in certain limited situations where the technology involved made it impossible to process the warrant application in 3 days." They are not saying that. They are saying that the authorization to use military force in Afghanistan gave the President the authority to tap US Citizens. As for the need, why the barest of minimums under FISA couldn't be bothered with, they haven't offered anything. I imagine there are some "excuse gnomes" buried beneath the White House chained to the wall and being whipped daily until they come up with a plausible excuse for all this. Early money is on "9/11".

A friend of mine died on 9/11, we were on the soccer team, the swim team and in the same choir for 4 years in HS. I have no problem cutting it close on the constitution when it comes to security. It seems to me however, that FISA does just that. You can wire tap your fannies off for 72 hours before you even have to ask for a warrant and when you do, its a stone-cold-lead-pipe-lock that you'll get it. That pares down the constitution on this issue to almost nothing. Even that brief nod to constitutional principle was too cumbersome for this administration. I want to know why.

The warrant requests are top secret, are they not? I thought that was the whole idea behind FISA, to come up with a way to honor our national security concerns while still maintaining constitutional principles.

Gonzalez spoke today and I expected him to lay out a very clear case for the legality of what was done. He didn't. His claim is that the authorization to use military force in Afghanistan issued by Congress somehow makes the illegal taps legal. It is an assinine argument that Congress, by allowing the President to send troops to Afghanistan was also authorizing wire taps in the US on US citizens. Really, I was expecting something that was at least debatable on its face. Here is the Act: Act Authorizing Military Force The "Whereas" clauses by the way, mean nothing and have no legal effect as a matter of law. The long held rule of construction of laws holds that anything in a "whereas" clause is precatory, it means diddly.

The 72 hours is to allow them time to get the warrant. The warrant request is always granted. The record is 1,222 granted out of 1,226 requested. The 4 rejects were then granted upon an expedited appeal. 72 hours is plenty of time to put together a warrant application. So the way it works is they start tapping from the git go and while doing so they get the warrant application together and before whoever the judges are that decide these things under FISA and bam, they have their warrant and continue listening in. I just don't get it. I have no idea why they would just go ahead and tap without ever asking for a warrant when they know the warrant would be granted. I can only guess that they were tapping people with such a complete absence of grounds, that they knew FISA, even with its "any reason will do" standard, would have denied the warrant.

BS. They can tap it, capture it, whatever, all they want and without a warrant for the first 72 hours which gives them plenty of time to get that warrant and the body that issues them has a record of saying "yes" to the application 100% of the time. You have posted many times in this thread and have not yet addressed this issue. The emergency scenario you outline just doesn't wash given that they can listen in all they want from the git-go. They can take their sweet time getting the warrant which is always, always issued.