Per aspera

8 Responses to “Feingold’s censure resolution”  

1. 1 Tom Mar 13th, 2006 at 5:33 pm

   I’m a little all over the place with this. I think the Democrats are once again failing to get their nuance out. The Republicans are effectively making it look like the Democrats oppose all wiretaps, period. The Democrats have been completely ineffectual in communicating the whole, “without a warrant,” qualifier. Now we look like we’re A-Ok letting Osama text page his American cells and no one is out there correcting this blunder. Someone, somewhere, should be pounding a goddamn podium screaming, “Not without a warrant! Never without a warrant!” but sadly, that person is me, but I’m pounding my sofa, drunk. And I promptly flip back to softcore porn.

   Why isn’t someone saying that legal wiretaps are super? That, if we’ve got a warrant, the Democrats would be fine with inserting RFID chips in the inner ear of little babies, as long as a judge somewhere believes there’s good cause?

   My concern with the censure is that Feingold seems to be acting alone. You had to call the Senators. Why weren’t they standing right beside him? Is this because:

   1) The Democrats have no unity.
   2) The Democrats didn’t know he was going to do this.
   3) The Democrats don’t want to settle for some pansy-ass censure, they’re instead throwing the full weight of the Democratic Party behind the appointing of a special prosecutor and the ACLU’s lawsuit.

   And I cry into my whiskey (currently in my cupboard is Kentucky whiskey, hence the ‘e’, which I know you noticed you boozebag) because I know it isn’t number 3. I’m just going to keep drowning my sorrows till Superman comes out.

2. 2 Ananth Mar 13th, 2006 at 6:35 pm

   Guys, the government does not need any type of warrant for matters of national security. It may not be able to prosecute you in a court of law without a warrant, but that is seperate issue.

   Let’s say for example, that the head of the SS were to have placed a call to sleeper agents inside the United States during WW2, telling them to blow up a Navy Yard. Now the goverment may not be able to arrest the people who were given the order since they didn’t have a warrant (and don’t quote the 72 hour rule, it’s not probable cause simply to receive a phone call from someone), but they sure as hell could lay a stake out at the Navy Yard and wait for them to act, then arrest them while the were in the process of attempting to blow up a navy yard. Or the could simply increase security at the Navy Yard, thwarting the attack all together. Now if the same said agents recieved another call, you still would have no probable cause to get a warrant, but by listening you get actionable intelligence which is different than making a legal case.

   Every adminstration has had done some sort of warrantless search when it comes to national security (Clinton Administration, Aldrich Ames had a PHYSICAL search conducted on his premises for selling the name of under cover operatives without a warrant).

   The supreme court had held that congress cannot by statute reduce the constitutional responsibilities and powers of the Executive.

   I too await Superman’s Return and the scene in which he determines who to help on his return. I also am fretting X3. I pray that Ratner does a decent job

3. 3 Steve Mar 13th, 2006 at 9:44 pm

   You make me tired.

   First, this shit:

   The supreme court had held that congress cannot by statute reduce the constitutional responsibilities and powers of the Executive.

   sounds an awful lot like you’re referring to United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297). Assuming I’ve addressed the correct talking point, here’s Glenn Greenwald explaining that this decision in fact says the exact opposite of what Hewitt (and subsequent administration apologists) thinks it does. If you’re referring to some other decision, they’re dealt with in Section 2 of this post at the Left Coaster.

   Even the President is bound to follow the law, Nixon’s opinion on the matter notwithstanding.

   Next, what in the goddamn are you talking about with that SS officer business? Do you think that FISA has anything at all to do with arrest warrants? It does not. Here’s some useful information from a 2001 article in the San Francisco Chronicle:

   For years, the FBI and other U.S. intelligence agencies have used FISA to gather information through phone taps and electronic bugs, all approved by a special panel of federal judges picked by Chief Justice William Rehnquist. President Bill Clinton expanded the law in 1995 to include what is known as “black bag” searches of homes, which are executed while residents are away and without their knowledge.

   Because FISA is intended to permit interceptions of foreign or terrorist intelligence and not criminal evidence, the government needs only to show the special court that “probable cause” exists that the target of the requested surveillance is a foreign power or agent, a definition that includes being a member of an international terrorist group.

   That is a lower standard than what is required in criminal law, where investigators must show probable cause to believe that a crime is being planned or committed in order to get wiretap or search warrants from a court.

   And unlike regular search warrants in criminal cases, which require a target to be notified at some point and given an inventory of any evidence seized, a target of a FISA “order” may never find out that eavesdropping or a search has taken place.

   It’s waaaaaaaay easier to get a FISA warrant than a normal criminal warrant. Again, from the same article:

   The court, which has been operating for more than 20 years*, has approved more than 10,000 government applications for clandestine searches and surveillance of foreigners, immigrants and U.S. citizens — and only one request has ever been denied.

   …

   The number of eavesdropping orders granted by the special court has doubled from 509 in 1993 to more than 1,000 last year. That number is nearly equal to all such warrants granted by the rest of the federal judiciary annually for criminal investigations.

   *[the article was written in 2001]

   When Clinton conducted the searches of Ames’ house and trash in 1993, FISA did not address physical searches. Clinton’s administration argued that the President had the “inherent authority” to conduct those searches in the absence of Congressional statute. As mentioned in the first quoted section of the SF Chron. article, as of 1995 FISA does cover physical searches. As far as wiretapping goes, the Clinton administration did get FISA warrants for that. This is important. The Clinton administration operated, as far as we know, within the law. The Bush administration is claiming the right to ignore the law, which is, of course, horseshit.

   The government does, indeed, need some type of warrant to conduct electronic and physical searches of American citizens. It’s called a FISA warrant, and it’s no problem for the government to get one. So why would the Bush administration *want* to conduct its’ secret searches illegally, without even the formality of a FISA warrant? What kind of left-hand business were they up to that they thought they couldn’t even get a FISA court to sign off on it, and so decided to break the law?

4. 4 Tom Mar 13th, 2006 at 10:09 pm

   Yeah, there’s a difference between Clinton not getting a warrant for physical searches and an actual Executive Order dismissing the need for warrants. This puts Bush in the same boat as Truman, incidentally. When Ananth said this, “The supreme court had held that congress cannot by statute reduce the constitutional responsibilities and powers of the Executive,” I thought of Truman trying to federalize the steel industry during the Korean War (YOUNGSTOWN SHEET & TUBE CO. V SAWYER (1952)
   ). The steel industry essentially sued the president on behalf of Congress, via the Supreme Court, arguring that an executive order had overstepped executive authority and usurped power away from Congress.

   The Supreme Court wasn’t limiting existing powers, just defining existing powers and Judge Black (Black’s Law) determined that the Executive Branch had overstepped it’s bounds. That is precisely what has happened again.

   That’s what I want again. A Supreme Court decision on the matter. A big, nerdy, trial with constitutional law scholars being all pundit-y and putting Roberts on the hotseat, giving this man who I actually believe is an intellectual, thoughtful guy, his first Souter moment. A censure would be good too, but not till after the trial.

   It’s possible that I watch the Superman trailer via my On Demand with unusual regularity, by the way.

5. 5 Steve Mar 13th, 2006 at 10:35 pm

   I can’t watch the cocksucking Superman trailer, because my computer won’t run anything past OS 10.2.8, and thus can’t handle the latest version of Quicktime, in which all the trailers on the Apple site are encoded.

6. 6 Ananth Mar 14th, 2006 at 2:01 am

   you need a new computer….

   all that information makes my head heart. I do agree that now that this shit is out, the law might as well be changed. Reading that NY city first amendment lawyer’s take on it, the thing I find of interest the is that decision addresses internal threats, and doesn’t really address agents of a foreign power

   I wasn’t addressing a supreme court decision I was addressing this
   from wikipedia

   The In re sealed case decision in section III says, “The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.”

   I took this from Jane Harmon’s website

   http://www.house.gov/harman/press/op_ed/020506_OPED_checks_balances_interrupted.html

   “Given this powerful authority, why did the Bush administration not use FISA?

   Attorney General Alberto Gonzales provided a hint. In a speech defending the program, Gonzales said that the NSA surveillance could begin whenever the government determined that there was “a reasonable basis” to believe that the individual was affiliated with a terrorist group.

   The FISA standard, however, is not “reasonable basis,” but rather the more stringent “probable cause” standard of the Fourth Amendment. (”No Warrants shall issue but upon probable cause.”) It seems that the Bush administration did not think it could meet the legal standard, so it was unilaterally lowered. Hayden admitted as much, stating that the NSA program had a “softer trigger” than what is necessary to obtain a FISA warrant. If true, this is a breathtaking expansion of executive power.

   Moreover, the administration rejected a proposal from Sen. Mike DeWine, R-Ohio, in 2002 to lower the FISA standard from “probable cause” to “reasonable suspicion.” In rejecting a lower standard, the Justice Department, then led by John Ashcroft, stated that a lower standard might be unconstitutional and could, if determined to be unlawful, jeopardize ongoing prosecutions.

   In short, not only did the president change the law without telling Congress, but his own Justice Department said that this change to the law might be unconstitutional.

   The NSA program, on which I have been briefed, is a critical tool to disrupt terror plots against Americans. But only Congress, not the President, can alter the FISA standard. That’s a debate Congress must have. That is why the House and Senate Intelligence Committees must be fully briefed on the scope of the program and then hold legislative hearings.

   Meeting with victims of Saddam Hussein’s torture chambers in recent weeks, Bush declared, “the tyrant was a law unto himself.” Apparently, the irony was lost on our president. ”

   Now obviously, Ms. Harman is not exactly a fan of the President on this, she is however a fan of the program. I think the issue of why FISA wasn’t amended to a lower standard, which it could have been post 9-11, is because of prosecutions. Information collected via FISA warrants can be used in criminal cases provided the FISA warrant was obtained for the purpose of foreign intelligence gathering and not to circumvent regular warrants. See here point 5.

   There are two different issues here. One is legal process that allows for convictions and movement into our judicial system, there is also another matter of real time, tactical and preventive intelligence. It seems to me, the administration did not want to lose the ability to prosecute people where the could, but they also did not want to ignore information that would prevent could prevent an attack.

   So here is the issue,
   if it is so easy to get a FISA warrant, and this cases could have easily have gotten it, then why wouldn’t they have gotten it? They probably didn’t try get them, because they didn’t think they could. So instead, they used to a lower standard to get actionable information (I am assuming actionable and valuable, since no democrat in the know is screaming for an end to these practices)

   I Don’t think the illegality of this is at all a clear cut issue.
   see http://en.wikipedia.org/wiki/NSA_warrantless_surveillance_controversy

   At the very worst, the Administration has a credible argument that their interpretation of this things are in good faith. I agree with Tom, it would be nice to have a Supreme Court ruling on this to clarify it once and for. I don’t think we’ll see one. But it’s more likely than a censure vote passing.

7. 7 Nicole Mar 15th, 2006 at 3:43 pm

   I watched the Superman trailer but I didn’t find it that informative. It’s very vague.

8. 8 Ananth Mar 15th, 2006 at 3:52 pm

   Yeah, the worst about the superman teaser trailer, was the made you wait so long for it, and gave so little. They could have had the same damn effect by playing the john williams music and showing a flapping cape. There are rumors of the full trailer being attached with V for Vendetta, but no confirmation.

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