Spying on US citizens

[VABills]

Here you go Ken:

 

http://www.yale.edu/lawweb/avalon/sept_11/sjres23_eb.htm

 

With some key passages from it:

 

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

 

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States:

[KRC]

I was giving you the admins arguement, and a "quote" from the post.  But if it will make you feel better I will try to find it.

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...and I already stated the problem with the argument. There was no declaration of war, therefore 1811 does not apply. Congress authorized the use of force. They did not declare war. 1811 requires a declaration of war.

[KRC]

Here you go Ken:

 

http://www.yale.edu/lawweb/avalon/sept_11/sjres23_eb.htm

 

With some key passages from it:

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Still not a declaration of war. Only the authorization to use force. There is a difference.

[VABills]

Still not a declaration of war. Only the authorization to use force. There is a difference.

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Did you see what I quoted and bolded? Who cares if it is a declaration of war? They authorized detection and deterence measures as well.

[KRC]

Here you go Ken:

 

http://www.yale.edu/lawweb/avalon/sept_11/sjres23_eb.htm

 

With some key passages from it:

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From the War Powers Resolution (which this section is specifically mentioned in the Authorization for the Use of Force):

 

CONGRESSIONAL ACTION

 

SEC. 5.

 

...

 

(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces...

 

The authorization for the use of force is not a declaration of war.

[KRC]

Who cares if it is a declaration of war? 

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Ummm...because 1811 specifically requires it?

[Mickey]

Yes. When folks say that they mean to kill all of us, have acted upon that and will try to act again -  ignoring the civil nicities that many potential victims prize -  I for one take it seriously.

 

It's that old, big picture thing...

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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.

[Mickey]

And this is where it gets muddy. Are domestic terror suspects going to be handled in the courts? Or as enemy combatants? In my layman's view, it still seems very legally sticky if the original probable cause for a specific warrant comes from a blanket search of cell phone traffic, or mining chat boards.

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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.

[VABills]

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.

 

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Probably Michael Moore, Dan Rather and a few others who were receiving money/funding from the terrorists to push their shrill agendas.

[Mickey]

Here you go Ken:

 

http://www.yale.edu/lawweb/avalon/sept_11/sjres23_eb.htm

 

With some key passages from it:

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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..."

[VABills]

From the War Powers Resolution (which this section is specifically mentioned in the Authorization for the Use of Force):

The authorization for the use of force is not a declaration of war.

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And where has he been involved in any use of force for more then 60 days beyond Afghanistan and Iraq which were submitted and authorized by Congress. If Bush is taking action on these individual cases of planned terrorism, it is likely that everything is completed in less then 60 days and therefore the war powers act doesn't apply.

 

The key phrase to be though and I continue to reitterate is that he was authorized to detect and deter, to protect all US citizens at home or abroad.

[VABills]

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..."

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Oh that's clear

 

But legally I believe this gives him everything he needs to act both overseas and at home to deter future acts. The whole this word vs. that word is why people never understand anything.

[Mickey]

Probably Michael Moore, Dan Rather and a few others who were receiving money/funding from the terrorists to push their shrill agendas.

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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.

[VABills]

Maybe they have not identified the US side? They are running the phones through switches and unable to trace. Who knows, who cares? Why if it stops a terrorist attack is it that important. Again, answer that.

[KRC]

And where has he been involved in any use of force for more then 60 days beyond Afghanistan and Iraq which were submitted and authorized by Congress.  If Bush is taking action on these individual cases of planned terrorism, it is likely that everything is completed in less then 60 days and therefore the war powers act doesn't apply. 

 

The key phrase to be though and I continue to reitterate is that he was authorized to detect and deter, to protect all US citizens at home or abroad.

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Again, since you are unable to actually understand the conversation, A DECLARATION OF WAR IS REQUIRED FOR 1811 TO BE VALID. ABSENCE OF SAID DECLARATION IS A VIOLATION OF 1811. Understand now or do I now need to start using bold font? Why is this such a difficult concept for you to grasp. No declaration, no 1811. An authorization is not interchangable with a declaration.

[KRC]

Oh that's clear   

 

But legally I believe this gives him everything he needs to act both overseas and at home to deter future acts.  The whole this word vs. that word is why people never understand anything.

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Yeah, why use technicalities like the actual wording of the law, when you can just make sh-- up to justify your actions.

[VABills]

Again, since you are unable to actually understand the conversation, A DECLARATION OF WAR IS REQUIRED FOR 1811 TO BE VALID. ABSENCE OF SAID DECLARATION IS A VIOLATION OF 1811. Understand now or do I now need to start using bold font? Why is this such a difficult concept for you to grasp. No declaration, no 1811. An authorization is not interchangable with a declaration.

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And what do you not understand about what you !@#$ing wrote:

 

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces...

 

Congress did enact a specific authorization. Why is that so !@#$ing hard for you to understand. Or do I need to start BOLDING?

[KRC]

And what do you not understand about what you !@#$ing wrote:

 

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces...

 

 

I do understand it. It specifically proves my point that a declaration of war is different from an authorization to use force. Do you not see this or are you continually making sh-- up just so you can be argumentative.?

 

 

Congress did enact a specific authorization.  Why is that so !@#$ing hard for you to understand.  Or do I need to start BOLDING? 

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No sh--. I already stated multiple times that they authorized the use of force. Try reading before responding. It make this whole debate thingy move much smoother.

[VABills]

I do understand it. It specifically proves my point that a declaration of war is different from an authorization to use force. Do you not see this or are you continually making sh-- up just so you can be argumentative.?

No sh--. I already stated multiple times that they authorized the use of force. Try reading before responding. It make this whole debate thingy move much smoother.

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What?

[Taro T]

And what do you not understand about what you !@#$ing wrote:

 

Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces...

 

Congress did enact a specific authorization.  Why is that so !@#$ing hard for you to understand.  Or do I need to start BOLDING? 

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KRC, please let me take a stab at it if you will.

 

VA, you are correct that Congress did authorize the use of force. Do you agree though that they did not "declare war"? This is the key concept on whether paragraph 1811 of FISA is applicable. If war was declared, then 1811 is applicable. 1811 is the only part of FISA that allows wire taps without the "72 hour" warrant.

 

If war was not declared, then 1811 is not invoked. The applicable portions of FISA are from 1802 and 1803 which DO require the AG to request a warrant from the FISA court justice pool w/in 72 hours of approving the wire tap.

 

This all still may go to one of the gray areas brought up by other posters on the board. But Gonzales appears to have been saying the taps were legal under FISA because the US is at war (perhaps his justification will change as time goes on). That does not appear to be correct because technically the US is not at war because Congress never issued a Declaration of War.