Comments on The Anonymous Liberal: NSA Endgame

Anonymous Liberal –Thanks for responding to my pos...

2006-04-06T19:38:00.000-05:00

Anonymous Liberal –

Thanks for responding to my post re the SMOKING of CRACK on Glenn’s page. I really don’t want to seem pigheaded here, but this is quite important if the goal is to get the SCOTUS to decide this case favorably on the merits. And please accept my apologies for the crack-smoking rhetoric, just a bit of hyperbole to get attention.

The case that I believe is most analogous to the NSA program is Korematsu, in which the government claimed that the internment of U.S.-born Japanese was necessary for national security. While any one with half a brain knew that was utter racist crap, the Court wouldn’t second-guess the government where national security was at issue.

How is this relevant? Yes, it’s clear in the NSA case that the law was broken, just as the internment of people of Japanese ancestry was surely unconstitutional.

But let’s assume that it’s 16 days after a war is declared, and the President believes in good faith that FISA is too cumbersome to get the bad guys. And Congress refuses to disagree, notwithstanding it’s clear ability to do so. The Court would be extremely unlikely to hold the President to the rules of FISA if the Court thought that the President might be right. Because if the Court were to hold then that the President can’t take extraordinary action, and then a terrorist attack were to occur, the Court would be left holding the bag. The President would blame the Court, and Congress would as well, for not allowing the President to do what was necessary. And then we would have a real Constitutional crisis – if you think Roe v. Wade gives the right arguments that the Court is a bunch of out-of-touch elitists, the Court would really be in deep doo doo here. Everyone would say “how did the Court conclude that the program wasn’t necessary for national security?”

The reality is slightly different, in that the President kept doing it and continues to do it. That’s where most people have a problem, because we can kind of figure out that at some point, the President should have come clean. But for the Court, it’s really not much different than the paradigm case. When did the President go from breaking the law when it was really necessary (if it ever was), to just doing it out of a desire to expand Presidential power? After six months? A year? Two? We’re all not really up in arms that he did it at the beginning – we don’t really know whether it was necessary then. But we sure know that the President could have worked something out with Congress at some point in the past four years. Is the Court going to decide at what point this became impermissible?

On the other hand, if Congress claimed the Administration was acting illegally, say, after the passage of the Patriot Act, and had some hearings and concluded that FISA could have been complied with without endangering national security, the Court would be deciding the question of who, as between Congress and the President, has the right to authorize these searches. And if the Court chose Congress, and a terrorist attack occurred, Congress, not the Court, would be to blame.

As for Hamdi, with all due respect, I think that’s much different, because it’s not clear to me how the Court’s ruling in Hamdi – that he had a right to some minimal hearing -- could ever come back and bite it in the ass the way this could.

Jao commented that I suggested that Congress engage in factfinding on the Court’s behalf. That was not my suggestion. I was merely agreeing that the Court isn’t a fact-finding body, and that whether it was necessary for Bush to break the FISA laws is really a question of fact. Without an answer to that – which the Court simply cannot get without Congress having held some sort of investigation and coming to the conclusion that this could have been done another way, the Court wouldn’t risk saying the President acted illegally. And I know, as Glenn has often repeated, that the facts sufficient to show that the President failed to comply with FISA are already clear. And Congress should, in my view, impeach the President for not complying with FISA (as well as lying the country into a war, which I think is worse). But the real question for the SCOTUS is whether there was or is a real case to be made that FISA was insufficient to allow the President to protect the country, as the Administration claims.

Sorry to be so verbose, but again, my point is that if we want the SCOTUS to address this issue favorably, Congress must make this a fight between it and the administration, and that’s what I think we need to be trying to encourage. In my mind, the failure of the dems to support the Feingold resolution gives the SCOTUS tremendous cover to punt here. And when the Court has an opportunity to punt on cases that can be dangerous to its institutional standing, it usually has no problem doing so.

Like you, this is an issue that I care very deeply about. And it pains me to no end that the dems in power are, with one or two exceptions, such gutless, dishonest hacks, unable to do the right thing (vote for censure) even when it’s staring them in the face.

New filing in lawsuit against AT&T exposes the NSA...

2006-04-06T12:27:00.000-05:00

New filing in lawsuit against AT&T exposes the NSA operation:

http://www.eff.org/news/

I think we could have a different bill than Schume...

2006-04-05T23:55:00.000-05:00

I think we could have a different bill than Schumer's but it yields a slightly different view from Feingold's frontal statement.

What I would like is a congressional timeline measure wherein milestones would be defined in the progress toward modernizing FISA and progressively reeling in the executive's numerous autonomous activities.

Really, we want a strong executive, a vociferous and astute congress, and a sagacious judiciary; and, in times beset with conflict abroad, and on these shores, we want the three branches cooperating.

I think if there had never ever been illicit wiretapping or induced confessions, court stripping, or presidents toward the end of a 'UN police action' trying to assure steel production nonstop, there would be less purchase for the Republicans who now enjoy their first royal flush in the poker tournament of US politics and government.

Clearly, a broad swath of the legal profession balks (no ML pun intended, for the kind professor also writes at scotusblog) at the egregiousness of the extralegality of the conduct of this administration in many arenas. Yet, glance at capitol hill a trice or even at the supreme court itself and reassess where there is perfection.
I am glad your voice is added to the many addressing both article III and II issues.
Somehow I believe, in Hamdan SCOTUS is quite disposed to issuing at least a moderately disapproving opinion, to begin the process of undoing some excessively hasty executive action, though the timeframe for that opinion is months away, and Schumer's measure seems to grasp the urgency of beginning the process soon rather than slackening pressure in any way now in the fifth year since partial martial law has governed some parts of the society and reshaped foreign policy.
And our political system, once we travel to the polls four times in the next two years, ostensibly has the capacity to reduce some of the obsequy; and instead institute a more robust and reinvigorated world view, and reestablish some of the important rights of scholars and consultants whose activities are somewhat smothered by over-regulation at present, or, rather, over-disclosure, to who knows what data profiling paradigms.
It is important to advocate for restitution of these rights, without tilting at windmills which have a striking resemblance to torched twin-Towers.

Well AL are you an attorney in the right position ...

2006-04-05T21:39:00.000-05:00

Well AL are you an attorney in the right position or of sufficient clout to facilitate moving these issues into a court for a decision? You certainly seem to know what legal tack to take.

Getting the Democrats in Congress organized or gutzy enough to delay ammendments to FISA or laws legalizing the presidents actions with the NSA may be tough. The best we may be able to hope for is that the upper management of this administration continues to fall prey to their own twisted behavior like the DHS pedophile today and that continues to keep the Republicans unfocused.

Here's a few points:1. Congress HAS succeeded; the...

2006-04-05T18:40:00.000-05:00

Here's a few points:

1. Congress HAS succeeded; they don't want the president to obey the law; they want him powerful enough to carry out his policies.
2. Fengold's position is as important as any political strategy; he's STANDING UP FOR the Constitution of the United States; the president and much of Congress are committing treason by violating their oaths of office, and attempting to destroy the foundation of our country.
3. Congress needs to do their jobs, and the Supreme Court needs to do theirs; we'll find out who are patriots and who are traitors by their actions.

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