December 28, 2005

The Powers of President George

What this NSA executive order matter will boil down to in the end is a separation of powers issue.

Did Congress have the legal authority to bind the Office of the Presidency in conducting warrantless searches performed for national security reasons, stripping the executive branch of an inherent constitutional power?

Every President from the dawn of international wire communications well over 100 years ago until 1978 assumed this right, and the courts have always deferred to this particular power inherent to the Presidency. This is supported by case law and precedent, and is summed up in the five-page Department of Justice briefing (PDF) delivered last week. In short, the Department of Justice seems willing to make the case that Bush was well within his constitutional powers. If anything, Congress may have exceeded their constitutional powers in passing FISA.

Even after passing FISA, Carter himself did not feel strictly bound by it, nor has any President since, from Reagan, to George H. W. Bush, Clinton, to George W. Bush. They have all asserted (and over the past two weeks, their DoJ attorneys have as well) that the Office of the Presidency has the Constitutional authority to authorize warrantless intercepts of foreign intelligence. This power has been assumed by every president of the modern age before them, dating back, presumably to the Great Eastern's success in 1866 of laying the first successful transatlantic telegraph cable. From Johnson, then, through Grant, Hayes, Garfield, Arthur, Cleveland, Harrison, Cleveland (again), McKinley, Teddy Roosevelt, and Taft, through Wilson, Harding, Coolidge, Hoover, to FDR and on to Truman, Eisenhower, John Fitzgerald Kennedy, Johnson, Nixon, Ford and into the Carter administration, the Presidency has had the inherent and unchallenged power to conduct warrantless surveillance of foreign powers for national security reasons.

This is a simple, unassailable fact, not matter how loudly demagogues shriek.

FISA is a case of Congress infringing upon the inherent power of the executive branch, and if it comes up as a direct constitutional challenge, FISA will most likely be struck down as Congress infringing upon the constitutional authority of the executive branch to perform foreign intelligence functions.

By creating and using this executive order, Bush merely used a right the executive branch has always maintained since the very first "President George" in 1789.

Note: While I've made the specific case of warrantless wiretapping authority by the President back to Andrew Johnson in 1866, Robert F. Turner in's OpinionJournal takes the case back 216 years to another George's Administration, and beyond that back to Ben Franklin the Continental Congress in 1776.

Posted by Confederate Yankee at December 28, 2005 05:34 PM | TrackBack

Just a quick question. Warrantless wiretapping of whom? Because I don't think the stink is about wiretapping foreign governments or agents, but spying on American citizens. I just didn't see that particular issue addressed. And I'm not sure how Executive Order 12139 helps the case since it requires the AG to certify that an American citizen is not the subject of the wiretapping.

Posted by: Chalkboard at December 28, 2005 05:48 PM

Ditto the above question.

Nobody is discussing whether the president can wiretap foreigners or foreign governments. It's American citizens in America that the uproar is about.

Hey, you're not erecting a straw man are you Confederate Yankee? I thought better of you.

Posted by: Ben at December 28, 2005 06:08 PM

It seems like both of you would benefit from reading facts.

As all of the NSA scans are conducted offshore,they seem to satisfy both the 4th Amendment's border search exemption and the President's inherent Constitutional authority to conduct foreign intelligence surveillence.


Posted by: Confederate Yankee at December 28, 2005 06:31 PM

there are dozens of instances when US citizens can be legally searched and surveilled without warrants. by which i mean to say that it ios NOT an absolute unlimited right. MOST IMPORTANTLY, searches must ne reasonable.

The POTUS can also order searches and survelliance this on his own - WITHOUT A COURT-ORSER - when he intends to collect intel as CinC and when the US person is a suspected agent of the enemy.

this is a fact asserted by many presidents.

see here for long post with links:

ALSO REMEMBER: FISA essentially limits only US AG's powers.

NO STATUTE can limit the constitutionally defined powers of the POTUS.

SCOTUS, the federal district courts, 2 recent Democrat presidents, a famous liberal law professor, and a former Clinton USA AG's have concur.

Posted by: reliapundit at December 28, 2005 10:55 PM

Constitution? What's that? We have a Constitution?!?

If I didn't know better I would think someone was opposed to the dissolution of federalism and an end to judicial oversight.

Posted by: Ryan at December 29, 2005 03:47 AM

Wake up people, this is almost 2006, We have to use whatever means necessary to gather intellegence. We are dealing with a enemy that is very well educated (probably in some liberal U.S. college)well trained and financed. Every President has used this executive power. So stop whining about it. All of this is politics, the lefties are trying tear down the right and it's not working. Get over it!! The Gov't is not going to kick down your door. Face it, if you are a U.S. citizen or LEGAL resident you have a duty and responsibility to obey the laws of this country. If you are not doing anything wrong you have nothing to worry about. Honestly do you think they are listening to you and I on the phone. They don't have the manpower. They have their targets and they are pursuing them aggressivly. What happens when they bring down an airliner or blow up a tunnel or detonate a nuclear device here in the United States? You clowns are going to be the first to PISS AND MOAN that homeland security was not doing their job and the Administration is at fault. BLAME GEORGE!!!!! When is the left going to stand up and take responsibility for their in-action. At least WE are trying to do something besides hand wringing. And don't reply to this with the usual "What about our right's" crap. This is not as Retired Navy puts it "Nirvana" this is the real world with evil,ruthless, vile people that do not think twice about butchering you, me and every other man, woman or child in this country. You people disgust me that you are worried about some "terrrorists right's" that might have been violated. Oh, by the way I am not a racist by any stretch of the imagination. But if Ali, or Muhhamed feel that they are being persecuted they need to think about all the people that have fought and died so he or she could live in a FREE Nation.

Posted by: Faithful Patriot at December 29, 2005 08:24 AM

Sometimes we have to choose the lesser of two evils. Bush and his people gathering intelligence on Americans or more terrorist attacks,possibly with dirty bombs. To me this is a no brainer unless you are not taking the possibility of a terrorist attack seriously.

Posted by: Shoprat at December 29, 2005 08:39 AM


The aclu is running an ad comparing nixon to w.

the left trots out nixon as if he was really the mostr evil think since mccarthy.

nixon was a fabulously great presient. one of our best ever.

in five years he:

1 - ended the draft and invented the all volunteer military
2 - entirelky vienamiozied the war; on 3/29/73 we had ZERO ground combat troop in vietnam. south vietnam didn't fall until 1975, and only then when the dem doves in congress abandoned our ally by pulloing the plug on financioal support. like they did a few years later with the contras. and would dom now to the iraqwis and the afghanis.
3 - signed the clean air/clean water acts and invented the EPA
4 - appointed rehnquist to the scotus
5 - signed the FIRST nuke arms treay with the USSR
6 - invented detente and put pressure on the Soviets to release the rtefuseniks and to allow Jewish immigration - which contributed mightily to the dwonfall of the USSR
8 - took us off the gold standard

and on an on.

nixon did more good in 5 years than bush senior and bj clinton did in 12. and we are STILL benefitting from nixon's presidency.

OKAY: he effed up bigtime with the watergate coverup.

on balance: he was still GREAT! worth it. we were LUCKY he was elected and relected.

LOOKIT: i've been a registered dem since 1974. i wathced ALL th watergate hearings. i went to more anti-0war protests then you've seen telephone poles.

NOW, i can see that the anti-war movewment weas BAD, and the war was honorable.

when the dem doves of congress - the mcgovernites who once again control the party - when they pulled the plug on spouth vietnam, this led directly to the boat people FLEEING vietnam, the rise of Pol Pot and 4 million murdered by marxists in se asia.

and 35 yeasr of marxist slavery for 65 million vietnamese.

the peace movement was EVIL. nixon was great - flawwed but great.

BTW: the peace movement WAS REALLY RUN BY THE COMMIES. folks like A.N.S.W.E.R.


i knpow: i was there.

Posted by: reliapundit at December 29, 2005 01:26 PM

More power to the NSA! I like their recent 'cookie strategy', but the coffee incidents may give the public a bad taste.

Posted by: Todd at December 29, 2005 07:50 PM

We've already lost one major American city this year and a major portion of our coast. And we seem to be carrying on just fine. Why so scared of terrorists?

Posted by: CDB at December 30, 2005 08:14 PM

Was that a rhetorical question, CDB, or are you really seeking some answers? I notice that even you email address is bogus. Maybe you are too.

Are we just expected to ignore the very real terrorist threats and hope they'll just go away through some magic? Do you have to have the country suffer from something much, much worse than 9/11 before you will have any concern for the welfare of others? Or are you so self-centered and selfish that you are willing to play the odds and hope only other people will be the ones to suffer?

You are a pathetic human being if that is your philosophy, Sir - and an even worse example of an American. We know your type. As soon as there is anything to threaten you personally you will run and squeal like a helpless rabbit, all the time complaining that Bush didn't save your precious butt.


Posted by: Retired Spy at December 30, 2005 10:18 PM

I wonder how one determines the citizenship of someone when a foreign agent is communicating with someone in the US? Are the more sensitive among us saying we are to ignore intelligence that may save lives because of some legalism. Strange when I read the Federalist Papers it is clear the founders intended the president to be solely in charge of intelligence and its conduct.

Were the doubters to be heeded we would be back in the days when Sec of State when informed that State was reading the Japanese diplomatic traffic said"gentlemen do not read others private mail."

Such beliefs do not protect our freedoms but will insure the destruction of this nation.

Posted by: TJ Jackson at December 30, 2005 11:38 PM

I work in a printing shop. Imagine some terrorist calls our business and orders business cards. Then imagine our shop is put under surveilance. 1/2 hour later we would be taken off the list because it would be obvious to anyone listening in to our phone calls that we are just too goofy to be terrorists. These people have better things to do than to listen to my boss tell stale jokes. Neither do they have the time to spend listening to my clever repartee.

In that scenario who was hurt.

Hopefully the terrorist in the long run.

Posted by: prying1 at December 31, 2005 03:26 AM

I was just reflecting again on what CDB wrote yesterday, and I have become even more incensed - infuriated, actually.

In the immediate aftermath of 9/11 we were shocked by the attack on innocent people. We watched on TV as people plunged to their deaths. We pulled together as a nation. We got behind the President.

So what happened to now make this George Bush's war on terrorism - the Republican's war on terrorism and in Iraq? The Democrats and the terrorist sympathizers on the Left surely have short memories. Their focus now is only on how to win back seats in Congress and to put some self-serving nitwit like Vietnam war traitor John Kerry in the White House.

It isn't us as a nation any more as the Dems see it. The Republicans and GWB are their enemy - not al Qaeda and terrorism.

Then I read something written by the pond scum likes of a coward who just calls himself/herself CDB and I want to barf. We lost a city (New Orleans) and we seem to be doing OK? Huh? Some 1000 human lives we lost, countless thousands became refugees in their own country, the economies of Mississippi and Louisianna were devastated, and the effect spread across the entire nation. We lost over 3000 innocent humans on 9/11, and the aftermath brought key airlines to their knees, and the entire economy suffered. No skin off CDB's butt.

Why does all this really sicken me? It's people like CDB who sit back and have no compassion for anyone else. It didn't affect him/her! "What? Me Worry?" I wonder how much money or personal sacrifice the CDB Dirtbag contributed to Katrina victims.

It is simply disgusting that we have to occupy the same country with the likes of this person. This person is lower than whale sh*t in my opinion.

Posted by: Retired Spy at December 31, 2005 10:21 AM

Retired Spy,

I tend to agree with you. Either this guy was trying to let of a sick joke or has no compassion. I spent 20 years in the Navy for all Americans, too bad I couldn't pick and choose. But then again, a little dirversity can be a good thing. Even scum like this may help others put things in perspective. One can only hope.

Prying1 had a good point, The govt won't be spying on everyone, they just don't have the resources.

Posted by: Retired Navy at December 31, 2005 11:32 AM

Here's a pointless exercise, but I'll try anyway (no spam please kind, intelligent republicans)

Let me get this straight: you agree that Shrub should have used the legal channels that would have accomplished his objective, but that his violation of the law is not out of the norm for presidents, and his crime is shielded by the separation of powers doctrine? That's the weirdest defense I've heard yet.

Note that you are not aquitting him, you are merely saying that he is above the law he violated. Given the treatment Mr. Clinton received, this is hypocrisy of the 1st order.

Here's my point:how exactly is your argument in the defense of the people? It is evident your rhetoric is designed to protect King George, not the freedoms of the people.

For the record, it is not a matter of W's supposed reasons for invading our privacy--there is no end to the justifications provided by the powerful.

I value personal liberty over national security, especially when one realizes the multitude of bogeymen erected over the years to cow us and further .

Yes it's a big, bad, scary world, but I'd rather not live in a police state, thank you very much.
I'll take privacy over security anyday.

The rest of you fearmongers need to grow up and quit listening to the GOP propaganda machine. Do you love the USA or what?

I doubt you'll listen to me (I'm probably a liberal, right?), but listen to the words of one of America's greatest generals:

"There is no security in this life. There is only opportunity."

"The powers in charge keep us in a perpetual state of fear keep us in a continuous stampede of patriotic fervor with the cry of grave national emergency. Always there has been some terrible evil to gobble us up if we did not blindly rally behind it by furnishing the exorbitant sums demanded. Yet, in retrospect, these disasters seem never to have happened, seem never to have been quite real."

- General Douglas MacArthur

Posted by: child at January 2, 2006 07:55 PM

I guess you earned the moniker "child" for a very good reason: the ability to comprehend a complex argument seems to elude you.

Bush did use FISA - more than any other president, for that matter.

And Bush broke no laws. Period. The FISA court acknoledged the power of the office of the Presidency in Sealed case 2002. He is not above the law, but his powers, in this respect, exceed the limited powers of FISA.

I don't know why that is so hard for some to understand.

Your comment that you value "personal liberty over national security" proves your inability to reason as an adult: without national security providing for our rights as a free nation, you would have no personal liberties.

Not one.

Posted by: Confederate Yankee at January 3, 2006 04:17 PM

Thank you, CY. It took a great deal of self control to not respond to the child to point out the utter foolishness expressed in his/her preferences for personal liberty over national security.

You did it so well ....

Posted by: Retired Spy at January 3, 2006 05:55 PM

Gosh, "back in the day" it was the libertarians on the right who reminded us that "those who would trade essential liberty for temporary security deserve neither."

What has happened to you people?

Posted by: Fat Bastard at January 3, 2006 08:34 PM

Fat Bastard:

I think the real issue here is the relative value of personal privacy versus national security. The entire federal government does not have the manpower to spy on more than a minute fraction of the U.S. population, and to do so would completely ignore the real targets of this specific NSA operation - international communications between known members of the international terrorist organizations. That does not even take into account the massive requirements for targeting international and internal communications in and between the countries of all other potential adversaries throughout the world.

Your Irish Whiskey and pot stash and collection of blowup dolls are safe from federal scrutiny by the NSA. Your privacy is safe - as long as you do not communicate with al Qaeda.

Posted by: Retired Spy at January 3, 2006 09:28 PM

Wiretapping is perfectly legal... with a warrant. These warrants are not hard to get, and can even be applied for AFTER the fact. All you need is a reason, and not even a good one at that. What bothers me is why was it done without using the secret courts specifically set up to allow this? It's one thing to talk about freedom, but to be so willing to give that freedom up for the perception of security... just doesn't make sense to me.

Terrorists are bad, I get it. But if their goal was to change our way of life and keep us in fear, why let them? People are die for our freedom, yet we would give those freedoms up because we are afraid.

Posted by: Erik at January 4, 2006 03:53 AM

Thank you, Retired Spy, for the mindless ad hominem; and let me respond: your mother doesn't like being referred to as a "blow up doll."

That said: national security as defined by whom? There are those who would say that Cindy Sheehan and Michael Moore are threats to national security.

And, for that matter-- FISA provides a legal means of doing wiretaps for national security. Why was that bypassed? And why does this not bother those of you who consider yourselves (if there are any such commenters on this blog) libertarian?

Posted by: Fat Bastard at January 4, 2006 08:46 AM

Unfortunately, Fat Bastard, my mother passed away two years ago. If you had any strength of perception at all, you would conclude that the mother of a retired person, using standard actuarial data, would not likely still be among the living. You are not too perceptive, are you?

It seems you know nothing about terminology or procedure, either - nor does Erik. The NSA does not do wiretaps. That is something the FBI is tasked to perform - under warrant. The NSA targets international communications - not domestic communications - carried via electromagnetically generated signals that are transmitted through the atmosphere. There are no wires involved, nor are there wiretaps.

Domestic communications between foreign al Qaeda operatives and persons inside the United States are not targeted directly against transmissions emanating from inside the United States. American citizens are not being spied upon, as some would suggest.

Some like Erik are referring to fear, but it is your fear that drives you to believe that there is some conspiracy against your privacy, created by some evil person known as George W. Bush, President of the United States.

Fear? You are just plain paranoid.

par·a·noi·a Audio pronunciation of "paranoia" ( P ) Pronunciation Key (pr-noi)

1. A psychotic disorder characterized by delusions of persecution with or without grandeur, often strenuously defended with apparent logic and reason.
2. Extreme, irrational distrust of others.

Your substances and toys are still safe.

Posted by: Retired Spy at January 4, 2006 09:22 AM

Sorry about that-- lost me own mum 17 years ago and my dad passed a few months ago. Nonetheless, at the very least it's poor taste to respond to a legit question with adhominem attack.

Now then, of course, if you define it as "wiretapping" as we always understood it in the olden days of Ma Bell, perhaps you're correct. But do you really expect anyone to believe No Such Agency, with the most sophisticated elint and comint facilities in the world (mmm, mass quantities of computer power!) DOESN'T LISTEN TO TELEPHONE CONVERSATIONS?

Puh-lease. That doesn't even pass the smell test.

In fact, as I understand it the entire kerfluffle is driven by the fact that No Such Agency has listened to American citizens phone conversations without warrant.

Finally-- to chide me for my supposed "paranoia" is closely akin to saying "if you haven't done anything wrong you have nothing to hide."

But then, I don't figure you to be a libertarian; you sound much more like a garden variety authoritarian (with a dash of Islamo-paranoia).

We're not talking about my substances or my toys (and I'm sure you have a whole rack of various guns handy, don't you?), we're talking about whether the Executive can spy on American citizens without Judicial oversight.

Just remember this-- if you wouldn't want the same powers in the hands of a President Hillary Clinton, you're a hypocrite for demanding and supporting them for Mr. Bush.

Of course, you'd probably argue that anyone the Executive has interest in is, by definition, a terrorist or a terrorist sympathiser.

Posted by: Fat Bastard at January 4, 2006 09:58 AM
But do you really expect anyone to believe No Such Agency, with the most sophisticated elint and comint facilities in the world (mmm, mass quantities of computer power!) DOESN'T LISTEN TO TELEPHONE CONVERSATIONS?

Puh-lease. That doesn't even pass the smell test.

Actually, no-so-little liberal, your argument doesn't pass the logic test, (as for smell, try bathing).

With 3 billion calls per day, every day, to comb through, the idea that we'd actually have the physical manpower to listen to calls is the idiotic suggestion here.

In fact, as I understand it the entire kerfluffle is driven by the fact that No Such Agency has listened to American citizens phone conversations without warrant.

And like most liberals, you a start with a completely false premise devoid of facts.

The NSA monitored which number-called-which-number noting which numbers in America touched known or suspected numbers of al Qaeda terrorists overseas, in international calls only. That's it in a nutshell.

If this number came up repeatedly, their is a chance the NSA would then seach a FISA warrant - more have been asked for under Bush than under any previous president - and then the NSA or another agency might listen to calls. But again, they might not need to, as many constitutional scholars, teh Justice Department, and the FISA Court itself seems to indicate in Sealed Case 2002 when it took the Presidental power to conduct such surveillance for granted, without challenge.

Simply noting who called who is not illegal, and anyone who has actually read the facts (instead of the oft-unhinged liberal howling) would note that this is all that has apparently occured, despite all the false outrage liberals have been trying to muster by building a fase case that there is doemstic spying going on, when there is no indication any has occurred. Period.

We're not talking about my substances or my toys (and I'm sure you have a whole rack of various guns handy, don't you?), we're talking about whether the Executive can spy on American citizens without Judicial oversight.

Again, a little real knowledge trumps paranoia.

One thing I have learned in my many years is that sometimes restating a difficult concept another way can help the confused student learn. Linda Chavez provides this bit of “liberal outreach” in a recent column.

The president claims -- and is supported by legal scholars and officials from previous administrations, including the Clinton Justice Department -- that he has the authority to bypass the FISA procedure so long as he is responding to a foreign threat and acting in his role as commander in chief during wartime. Every president since FISA was enacted in 1978, from Jimmy Carter to Bill Clinton, has asserted similar authority, suggesting Bush is no radical in his assumptions. But this is an issue to be resolved in the courts, not in the halls of Congress, which cannot trump the Constitution by statute.

Again from FB:

Just remember this-- if you wouldn't want the same powers in the hands of a President Hillary Clinton, you're a hypocrite for demanding and supporting them for Mr. Bush.

The disconnect probably comes from what liberals think their rights are (or what they would have them be), versus what their rights actually are. Presidents dating back to Washington have had these rights, and even after FISA, every President and Justice Department has (correctly) mantained these powers exist beyond FISA's limited scope, and it doesn't matter who the next President is, they will have it as well.

Of course, if you'd been paying attention instead of playing conspiracy theories, you would know that already.

Posted by: Confederate Yankee at January 4, 2006 10:40 AM

While many defenders of the current administration claim partisan bias or “liberal brain disorder” in the response to the latest in a string of Bushco scandals, what can these defenders say when confronted with the following observations from their own party? (Long list of quotes to follow)

Why do these Republicans hate America?

* Sens. Chuck Hagel (R-NE) and Olympia Snowe (R-ME), "No president is ever above the law. ... We are a nation of laws. You cannot avoid or dismiss a law."

* Senate Judiciary Committee chairman Arlen Specter (R-PA) “the president's decision to inform a handful of members of Congress was sufficient . . .I think it does not constitute a check and balance,. . .you can't have the administration and a select number of members alter the law. It can't be done.''

* Sen. Richard Lugar (R-IN),”I think we want to see what in the course of time really works best, and the FISA act has worked pretty well from the time of President Carter's day to the current time.”

* Sen. Susan Collins (R-ME), surveillance abuses 'extremely troubling. . . warrants further inquiry by Congress”

* Sen. John E. Sununu (R-NH) "it is a little bit of a stretch for the administration to say the surveillance program was authorized by the post-Sept. 11 resolution . . .This is the kind of activity that should be approved in statute."

* Sen. Larry Craig (R-ID) and Rep. C.L.Otter (R-ID) “there is a clearly established process of judicial oversight through the Foreign Intelligence Surveillance Act (FISA) Court to obtain warrants for such wiretapping. . . the White House appears to have circumvented that process.

"The Founders envisioned a nation where people's privacy was respected and the government's business was open,. . . these actions turn that vision on its head. If the government is willing to bend the rules on this issue, how are we supposed to believe it won't abuse the powers granted by the Patriot Act?"

* Sen. Lindsey Graham (R-SC) "I don't know of any legal basis to go around" FISA's requirement the government obtain a warrant to conduct domestic surveillance of Americans . . . We can't become an outcome-based democracy. Even in a time of war, you have to follow the process, because that's what a democracy is all about: a process.”

* Sen. John McCain (R-AZ) “I know that the situation has changed since September 11th. So the equation has changed. Why did the president choose not to use FISA? That's a legitimate question.”

* Former Rep. Bob Barr (R-GA) “Exactly like Nixon before him, Bush has ordered the National Security Agency (NSA) to conduct electronic snooping on communications of various people, including U.S. citizens. That action is unequivocally contrary to the express and implied requirements of federal law that such surveillance of U.S. persons inside the U.S. (regardless of whether their communications are going abroad) must be preceded by a court order.

Alleged associates of al-Qaeda are today's targets of that breathtaking assertion of presidential power. Tomorrow, it may be your phone calls or e-mails that will be swept up into our electronic infrastructure and secretly kept in a growing file attached to your name. Then everyone you contact could become a suspect, a link in an ever lengthening chain that would ensnare us all in the files of the largest database ever created through unlimited electronic spying that touches every aspect of our lives.

* Bruce Fein, “It's more dangerous than Clinton's lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that, as [former Supreme Court Justice] Robert Jackson said, would lie around like a loaded gun, able to be used indefinitely for any future occupant.”

“President Bush presents a clear and present danger to the rule of law. He cannot be trusted to conduct the war against global terrorism with a decent respect for civil liberties and checks against executive abuses. Congress should swiftly enact a code that would require Mr. Bush to obtain legislative consent for every counterterrorism measure that would materially impair individual freedoms. . . .why is he so carefree about risking the liberties of both the living and those yet to be born by flouting the Constitution's separation of powers and conflating constructive criticism with treason?

Congress should insist the president cease the spying unless or until a proper statute is enacted or face possible impeachment. The Constitution's separation of powers is too important to be discarded in the name of expediency.”

*William Safire: "the president can't seize dictatorial power. And a lot of my friends looked at me like I was going batty. But now we see this argument over excessive security, and I'm with the critics on that."

* George F. Will: “the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.

* Robert A. Levy, a senior fellow in constitutional studies at the libertarian Cato Institute and a Federalist Society member: "The text of FISA is unambiguous: "A person is guilty of an offense if he intentionally engages in electronic surveillance ... except as authorized by statute." That provision covers communications from or to U.S. citizens or permanent resident aliens in the United States. Moreover, Title III (the Wiretap Act) further provides that "procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance ... may be conducted."

Accordingly, warrants would be required for law enforcement purposes and, therefore, warrantless surveillance absent an authorizing statute would violate the FISA requirement."

So I guess all these rightwingers hate the President and are conspiracy nuts too?

It is apparent who is playing partisan here, and who really cares about America.

National Security means securing the nation, and not only in the physical sense. A significant part of our national character is freedom from the sort of authoritarian intrusions some of you are so willing to let the current President get away with.

So if you really care about securing our nation, you cannot pick and choose the parts you want to defend. Our personal liberty is essential to our identity. We can defend our borders and our personal freedoms at the same time.

Republicans, do not compromise and sell us out now. The President does NOT have unchecked power, regardless of his justifications.

Republicans, at this moment, America needs you. History depends on you, not the minority parties.

Posted by: child at January 4, 2006 12:47 PM


Please refrain from comment bombing. Provide links to the quotes elsewhere, or more finely tune your thought process, but do not spam the comments in this manner again. Is that clear?

Back to the task at hand...

For all the wasted pixels, thse comments can be refuted easily with two very brief, very obvious comments.

When were these comments made?

You will find that most if not all were made in the opening days of the "scandal" when little was known. Most of the skittish RINOs you listed reacted by what they thought their handlers suggested, and have since backed away from these positions. Will, who I generally respect but who has be "mailing it in" since before the botched Harriet Miers SC nomination, also wrote at this time, as did Safire and Levy, correct?

The longer this drags on and the more information comes to light, it appears obvious that the NY Times hurt the interests of our national security apparatus through what I will charitiably describe as a mixture of ignorance, malice, and greed. Time (and the on-going Justice Department investigation) may prove I was wrong to give the Time credit for being ignorant instead of greedy and malicious.

You will be hard pressed to find these people holding those same positions today.

Who made these comments, and why?
No, in this instance I'm not referring to the RINO tendencies of these politicians, but instead to the simple fact that these are uniformly Senators and Congressmen, with huge egos, who like to have their names in the paper on on hand, and hate to have their power disputed on the other. When reporters come at them with half the facts and ask them leading questions about the Executive Branch "ignoring" something created by the Legislative Branch, what exactly do you think their gut response will be?

Again, note the fact that once facts have emerged, these easily ruffled Senators have quietly slipped away from their earlier statments.

Posted by: Confederate Yankee at January 4, 2006 01:20 PM

Inherent powers or abuse of powers? What was our country originally based on? Paranoid or hypervigilent? (look it up! it saves lives.)If it was all about terrorist, than why the interest in porn sites? Child molesters receive the least amount of jail time compared to other offences. Bye the way, the only reason i am writing today is not just to bicker back and forth with people who do not understand their constitution. Think about it, why was the constitution created and why are we here! PLEASE MR.PRESIDENT READ ME!! Will we (you) be able to to jump in a boat to a new land and kill off everyone(indians "which contradicts the purpose of the constitution in the first place") for the sake of freedom? Freedom of expression, freedom of religion, freedom of speech etc.. can we as Americans actually over through our own government when it becomes "wrong"? What rights do you really have? You have all kinds of rights as long as you CONFORM!! do what i say and only what i say or you will be persecuted. Think about it, WHO ARE WE to say what is right or wrong for another country, when we don't have that right in our own? The President says "it's OK to spy" in the name of terrorism. Yet, this bull about porn sites is going on. Also, democrats are no longer allowed to speak their mind(in fear someone may listen)," we're over in iraq for the oil". Any college classroom teaching gov., constitutional law, criminal justice etc., will teach you that WE do not have a " BILL OF RIGHTS". We HAVE a "bill of restrictions". It describes things you can not do! That goes for your president also! this is why we are supposed to have "checks and balances" but, when everyone is on the same team that concept doesn't work. When people in our own gov.(whether we agree or disagree) are told they can no longer speak their mind in fear of terrorism you should be concerned. The only thing to fear is fear it self. Do not let it distort the truth. There are two kinds of wrongs, one is prohibited the other is wrong in and of itself.

Posted by: terry at January 20, 2006 11:04 AM