February 07, 2006

Ussselesss Pressidentessss...

Well, we can't say this is exactly a surprise:

Former President Jimmy Carter criticized the Bush administration's domestic eavesdropping program Monday and said he believes the president has broken the law.

"Under the Bush administration, there's been a disgraceful and illegal decision _ we're not going to the let the judges or the Congress or anyone else know that we're spying on the American people," Carter told reporters. "And no one knows how many innocent Americans have had their privacy violated under this secret act."


Oops , wrong picture...

Carter, however, is a lagomorph-phobic peanut farmer, and not a lawyer. He should talk to his attorney general Griffin Bell, who said that FISA, "does not take away the power of the president under the Constitution."

Carter would also do well to read this analysis (PDF) of H. Bryan Cunningham, a "national security lawyer" and CIA officer under Bill Clinton, and the Deputy Legal Advisor to the National Security Administration in the George H.W. Bush administration. The letter absolutely guts the arguments of Democrats and libertarians, and strongly suggests that FISA may be unconstitutional as it constrains the President's Article II powers. Virginia Patriot, the shiny new blog of a William & Mary law school professor who tipped me off to the letter, has more analysis of the letter.

He also provides one of the better Op-Eds (free registration may be required) I've read about the FISA flap and the legality of Bush's actions in signing the order to run this NSA program.

Posted by Confederate Yankee at February 7, 2006 07:27 AM | TrackBack

This is from the same A&%$!LE that let our citizens languish in Iranian prisons for over 500 days. Gave away all that our country developed and paid for with our blood. (Panama Canal, military bases in the Philippines etc.
Probably would hug the so called president's of every country that is apposed to our policies and way of life. I'm suprised that he is not in Iran right now hugging the Terrorist's and holding hands in a ring around a nuke centrifuge. Does anyone know why Reagan won a landslide victory in the 1980 election? As a former President he should not be speaking out against a sitting President in public and especially while in another country. If he would have done what needed to be done in 1978, the world would not be at the edge of there collective seats wondering if and when Iran would be providing NUKE material to third world muslim radicals.

Posted by: Faithful Patriot at February 7, 2006 09:31 AM

If Griffin Bell said that FISA "does not take away the power of the president under the Constituion," doesn't that mean that FISA does not unconstitutionally constrain the President's Article II powers?

Posted by: Tyrone Slothrop at February 7, 2006 11:43 AM

No, what it means is that FISA does not have the authority to supercede the powers inherent powers given to the executive. The FISA Court of Review itself agreed in in re Sealed Case (2002):

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.26 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 Constitution sides with the President's Article II powers.

Legal precedent, as alluded to in the qouted section of Sealed Case ("as did all the other courts to have decided the issue"), unanimously sides with the President's position.

The AUMF, as proven by Rumsfeld v. Hamdi, can reasonably be seen as the statutory authorization FISA calls for, even if not specifically mentioned.

Frankly, I can't wait until this dog-and-pony show is over in the Senate and we can take this to the courts where it matters. FISA, it seems to me, was a good intention, but not a good idea, and the faster it is declared unconstitutional, the better it will be for everyone... well, in the long run.

In the short term, Al Gore, Jimmy Carter, Pat Leahy and a bunch of others are going to be eating a lot of crow.

Not that this is a bad thing.

Posted by: Confederate Yankee at February 7, 2006 12:26 PM

Where are you getting the Griffin Bell thing?

I see a Washington Post article that says:

"You could review the entire legislative history in the authorization to use military force and I guarantee you won't find one word about electronic surveillance," Bamford said. "If you review the legislative history of FISA, you will find Attorney General Griffin Bell testifying before the intelligence committee saying this was specifically passed to prevent a president from claiming inherent presidential powers to do this again."

I'd be happy to debate the larger question with you -- hell, I'd enjoy it -- but it'll have to wait until the end of the day, and I'd rather put up a post on my own blog, where the format is a little more conducive to longer pieces and I can embed links.

Posted by: Tyrone Slothrop at February 7, 2006 01:15 PM

The quote from from this article, entitled, "FISA vs. the Constitution: Congress can't usurp the president's power to spy on America's enemies" as it occurring in the Wall Street Journal's Opinion Journal.

Not surprisingly, the Post "Dowdifies" the actual full(er) quote that I discovered on page 8 of the Department Of Justice's 42-page justification (PDF) of the President's Executive Order authorizing NSA surveillance, which reads:

Indeed, while FISA was being debated in the Carter Administration, Attorney General Griffin Bell testified that, "the current bill recognizes no inherent power of the president to conduct electronic surveillance, and I want to interpolate here to say that this does not take away from the power of the President under the Constitution."
(emphasis in original)

Again, FISA does not have the authority to supercede the powers inherent powers given to the executive by the Constitution.

Unless you wish to overturn the Constitution and previously cited case law, FISA would appear to be unconstitutional. I simply want to get these pointless Senate hearing done with, and get this in front of the courts.

Quite frankly, I can't wait to see Arlen Spectre get it thrown back in his face.

Posted by: Confederate Yankee at February 7, 2006 01:56 PM

Yeah, I'd like to see Arlen Spectre get thrown on his face, too. Oh, thrown "in" his face? Gosh, I'm sorry, I misunderstood... ;)

Posted by: Old Soldier at February 7, 2006 03:06 PM

This will never get to court anyway. Just like the War Powers Act of 1973 never got to court. The reason is that it is in reality a political issue rather than a legal one. Democrats are already losing ground in an election year by looking soft on national security. The more they play this particular game, especially in a world where we know terrorists want to make attacks within the US, the more ground they lose. They are certainly not going to try to force this into court - it would be a Republican PR bonanza.

Posted by: Specter at February 7, 2006 03:20 PM

So says the braindead Dhimmah Carter!

Let me make one point very clear. When I was on active duty with the Air Force Reserve in 1980 at Ft. McNair (in Washington, DC) I was shocked to hear several 3-star generals publicly announce that they would not accept a fourth star from the coward Dhimmah Carter.

I was shocked at the time. Now I understand, those generals were those individuals of principal.

Posted by: Mescalero at February 7, 2006 11:43 PM

Iagree with Specot, this will never see a court of law. The Dummy's are just putting on a dog and pony show for their lefty base to squeeze more money out of them. The DEM senators are already talking about giving the President expanded powers under FISA or some other authorization, as if it was ever within their authority to give and this statement is just plain stupid "You could review the entire legislative history in the authorization to use military force and I guarantee you won't find one word about electronic surveillance," Bamford said. No AUMF or declaration of war has ever specifically stated that because INTEL gathering is assumed to be part of the use of military force what a TARD Bamford and anyone saying that is.

Posted by: Oldcrow at February 8, 2006 12:20 AM

For all of you who are so willing to chuck the separation of powers to stand by the President on this one, here's a question for you:

(Unclear to me why the trackback isn't working -- if someone can tell me, an e-mail would be appreciated.)

Posted by: Tyrone Slothrop at February 8, 2006 09:58 PM


So what? Are you suggesting that if Hillary becomes president (not likely - her poll numbers are the lowest ever), we should not support her if she was going after terrorists in the US by eavesdropping on their calls? Of course I would support her. Not that I'm too worried about that scenario...

Posted by: Specter at February 9, 2006 04:18 PM

No, because many conservatives do not trust her, I am suggesting that many conservatives would be unhappy giving a HRC-run executive branch the powers that they seem happy to give a man they like. If neither Congress nor the judiciary can check the executive branch, we're left with trust in the individual. That seems to me like a very unconservative approach to government.

Posted by: Tyrone Slothrop at February 9, 2006 06:28 PM

All the bickering and blowing aside. Too many people try to read the Constitution like they read the Bible. Too many clauses are taken out of context. It is a complete document and any and all clauses must be read together with every other pertinent clause.

Constitution for the United States of America
Article I, Section 8, Paragraph 14:

Congress shall have the power:

"To make Rules for the Government and Regulation of the land and naval forces;"


"The President shall be Commander in Chief of the Army and Navy of the United States"

Does this mean He is the absolute Monarch in total control without any check? The Constitution does not grant him that authority. The Pres has his duties and Congress theirs. After Congress declares war is the President free to do as he pleases with the Army and the Navy? The first quote above would indicate He is not.

Are Congress and the President totally free of each other? No, checks and balances are supposed to maintain a modicum of safety for the People.

Is there any time the rights of the People can be waived by those we place in service in our Government? Not if the word "inalienable" maintains it meaning and not according to the SC in Ex Parte Milligan:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false, for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority.

Ex parte Milligan, 71 U.S. 2 (1866)"

Posted by: Bill at February 10, 2006 01:21 PM

Well this is the same former President that told late night Tv the American Revolution was not necessary, you see if we only waited long enough we could have a government like Canada.

I believe it was on the tonight show with Jay Leno.

Posted by: MorningSun at February 13, 2006 11:17 PM

My mistake , was with Chris Matthews.

" Well, one parallel is that the Revolutionary War, more than any other war up until recently, has been the most bloody war we?ve fought. I think another parallel is that in some ways the Revolutionary War could have been avoided. It was an unnecessary war.

Had the British Parliament been a little more sensitive to the colonial's really legitimate complaints and requests the war could have been avoided completely, and of course now we would have been a free country now as is Canada and India and Australia, having gotten our independence in a nonviolent way.

I think in many ways the British were very misled in going to war against America and in trying to enforce their will on people who were quite different from them at the time. "

Yea , Just think what that would have done to history.

Posted by: MorningSun at February 13, 2006 11:26 PM