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Author Topic: NSA, Patriot
flydye45
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Saying it is "Domestic spying on Americans" is lying. Saying it is spying per se is not.
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Everard
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"Saying it is "Domestic spying on Americans" is lying."

Are americans being spied on in american territory? Yes? Then its not lying.

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Jesse
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Actions taken by the president during wartime don't either...Lincolns suspension of habeas corpus was ruled unconstitutional.

The constitution is pretty clear...and if these searches were conducted without any probable cause, they are unconstituational.

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Godot
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Digger, Regarding your point...

quote:
But, if the matter is really as outrageous as it is being portrayed in some quarters, surely some fair-minded Republicans could be brought on board with the idea?
You would have thought fair-minded Republicans would have stepped forward when the Presidency was stolen from Al Gore in 2000 (RE: 90,000 voters [mostly black] were unfairly, incorrectly and knowingly stripped of there voting rights by Harris, et. al. in contradiction to the Voting Rights Act of 1965 and subsequent laws imposed on former Jim Crow states, like Florida.)

You would have thought fair-minded Republicans would have stepped forward when Tom Delay was preventing the Democrats from trying to cleanup the slavery, forced prostitution and forced abortions going on in Siapan.

You would have thought fair-minded Republicans would have stepped forward when the House leader shut off the microphones on the Dems (which is against the house rules.)

You would have thought fair-minded Republicans would have stepped forward to keep the deficit from spirally into the stratosphere.

You would have thought fair-minded Republicans would have stepped forward to repeal egregious tax cuts for the wealthy before cutting education funding and services for the poorest in our society.

You would have thought fair-minded Republicans would have stepped forward when the biggest Big Pharma giveaway in history was forced on this country under the guise of Medicare drug reform.

You would have thought fair-minded Republicans would have stepped forward to ensure an accounting for the billions of our $$ being flushed into the sand in Iraq reconstruction while Halliburton gets no-bid contract after no-bid contract no matter how much they overcharge us.

You would have thought fair-minded Republicans would have stepped forward to demand transparency be honored when energy policy was being written by the energy companies in secret meetings with Cheney.

You would have thought fair-minded Republicans would have stepped forward to demand that the oil execs be under oath while they lied in committee about their obscene profits.

The Democrats are the minority party and the Republican leadership treats them (and their constituency; us) with disdain. No oversight issues can get out of committee without the Democrats shutting down the Senate.

There are a lot of well-meaning and honorable Republicans in our government, the kind of Republicans I would vote for. But most of the time they all dance in lockstep to whatever tune the White House is playing.

I am generally an independent voter (2004 Presidential election I voted Dem against Bush), but the Republicans have driven me to realize the only (major) party that is standing up for important moral and fiscal values are the Democrats.

[EDITED TO ADD: Sorry. I am soooooooooo done.]

[ January 27, 2006, 07:19 PM: Message edited by: Godot ]

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Digger
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Great rant. Entirely beside the point, but great rant. [Wink]

[ January 27, 2006, 07:36 PM: Message edited by: Digger ]

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The Drake
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And yet, I'm a fair-minded Republican (well, Independent), and strangely I don't have a problem with your entire laundry list of complaints.

Huh.

I also wouldn't want to lose sight of the important thing - that this practice be clarified as illegal and unconstitutional.

Not that it become the excuse for getting Bush out of office. Or having an impeachment party. Or vacuous soundbites on TV. That's precisely the kind of thing that will have Republicans and other moderates rallying to the President.

This is precisely the problem. If Democrats and others come out and scream "This is just like all the other bad things Bush does, and the stolen election, and KARL ROVE OUTING VALERIE PLAME!!! Plus, My GOD, Ohio! Diebold tripled the Republican votes, in fact, there WERE no Republicans in Ohio that day. They had been shipped to EGYPT and SYRIA using extra-ordinary rendition, where they were TORTURED using techniques outlawed by the Geneva convention!!!! And also, what was up with that receiver on Bush's back during the debates? OH, and ah, BUSH LIES!!!! He's stamping out my freedom to dissent at his staged cherry-picked MADE-4-TV speech events. PEOPLE ARE DYING IN IRAQ, AND CINDY SHEEHAN WANTS ANSWERS!!!

Is this a good way to get people to take domestic surveillance issues seriously?

Hmmm....

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Dagonee
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quote:
The constitution is pretty clear...and if these searches were conducted without any probable cause, they are unconstituational.
That's the constitutional issue of this affair that is not clear. There's pretty strong dicta in at least one SCOTUS case that communications to or from areas outside the U.S. may be interecepted for purposes of foreign intelligence without probable cause or warrants.
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Jesse
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However-

With no meaningful oversight, we don't know if that's all that was done.

That's why we need a commitee to investigate these wire taps.

I've said it before, I'll say it again, I don't WANT an impeachment unless there is no alternative. It's bad for business, bad for the country, bad for our international relations, weakens an administrations bargaining power at a time when that power is more critical than it's ever been. I also don't want Cheney for President [Smile]

Before we can discuss what the response should or should not be, we need to know what happened. I'm sorry, but I'm not willing to simply take a Presidents word (not just this one) that he's looking out for my civil liberties.

I think the vast majority of us agree that oversight is essential, and that we don't actually know exactly what may or may not have happened here. If I had a plausible reason for why FISA wasn't good enough, it would certainly go a long way toward setting my mind at ease.

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Everard
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" There's pretty strong dicta in at least one SCOTUS case that communications to or from areas outside the U.S. may be interecepted for purposes of foreign intelligence without probable cause or warrants."

Dagonee-
Does this apply to monitoring from the outside end, or the inside end? That is, can I place a tap on your phone in order to intercept calls from the KGB?

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Dagonee
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quote:
With no meaningful oversight, we don't know if that's all that was done.
That's why we need a commitee to investigate these wire taps.

I totally favor a committee investigation. Maybe even an independent counsel, although I'm not sure they can still do that.

quote:
Does this apply to monitoring from the outside end, or the inside end? That is, can I place a tap on your phone in order to intercept calls from the KGB?
It's only dicta. http://www.justia.us/us/407/297/case.html#F20

In this case, the Court held that the fourth amendment provided some protection in "domestic security" surveillance, domestice security meaning subversive threats from U.S. nationals. In dicta, it said that surveillance involving foreign powers or agents of foreign powers (which in other contexts has been held to include U.S. citizens acting for foreign powers) is likely a different matter:

quote:
As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.
This sentence had the following footnote:

quote:
Footnote 20 See n. 8, supra. For the view that warrantless surveillance, though impermissible in domestic security cases, may be constitutional where foreign powers are involved, see United States v. Smith, 321 F. Supp. 424, 425-426 (CD Cal. 1971); and American Bar Association Project on Standards for Criminal Justice, Electronic Surveillance 120, 121 (Approved Draft 1971, and Feb. 1971 Supp. 11). See also United States v. Clay. 430 F.2d 165 (CA5 1970).
It's clear the Court recognized the difference, and the participation of foreign powers in the call brings these different standards into play.

But, we don't know what those standards are at this point.

There's another case I can't find that I think makes a firmer statement about the difference. This case alone doesn't seem to provide the support I've read on the fourth amendment implications.

To get back to your specific hypo, I'm not sure a tap on a phone not controlled by a foreign agent (which a U.S. citizen could be) would be covered by this. But, if they can monitor the incoming calls that are likely to be from foreign powers, they might be able to monitor those calls to your phone.

Edit: By the way, your phone records at the phone company are NOT protected by the fourth amendment. The phone company can refuse to provide them and could fight a subpoena, but you would have no standing to challenge the government illegally seizing your phone records from the phone company.

And the phone company could turn them over voluntarily if they wanted.

[ January 27, 2006, 11:11 PM: Message edited by: Dagonee ]

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flydye45
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quote:
"Before we can discuss what the response should or should not be, we need to know what happened. I'm sorry, but I'm not willing to simply take a Presidents word (not just this one) that he's looking out for my civil liberties.

I think the vast majority of us agree that oversight is essential, and that we don't actually know exactly what may or may not have happened here. If I had a plausible reason for why FISA wasn't good enough, it would certainly go a long way toward setting my mind at ease.

Here here!
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flydye45
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"Does this apply to monitoring from the outside end, or the inside end? That is, can I place a tap on your phone in order to intercept calls from the KGB? "

I think technology has rendered that question moot. By keeping track of the routers, they don't need to make the direct intrusion you are postulating.

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Dagonee
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I interpreted that question to mean to which number is the tap at the router keyed into? That is, are all calls to/from the domestic line tapped or all calls to/from the foreign line tapped?
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flydye45
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I can buy that. But I don't see how it can work that way unless the feds already know you are going to call that number, mail that address, whatever. If their knowledge is that certain, then why can't they get a warrent for that?

So it is the al-Franken suddenly mailinig "crimisonjihad@aol.com" whom they want to grab. I'm not saying it couldn't work the other way, just it is more likely to be my scenario.

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flydye45
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Ev, I am going to have to continue to disagree with your definitions.
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Everard
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*shrug* Thats fine. I don't think that the constitution allows these acts under ANY definitions of the terms we're talking about. US citizens on US soil are protected by the constitution, regardless of how they are acting... thats the whole POINT of the constitution. If there are, in fact, SC decisions that say otherwise, I'd argue these decisions are contradicated by the text of the constitution.

But I'll continue to call bull**** if you say its lying to say that this is domestic spying. That is, itself, a lie.

[ January 28, 2006, 04:11 PM: Message edited by: Everard ]

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Dagonee
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The text of the constitution isn't as clear on this as you might think:

quote:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
And I'm not speaking of the potential ambiguity of wiretapping be a search or seizure. Let's accept that it is and look at the text:

1.) It does not require warrants for searches or seizures.
2.) Searches and seizures may not be "unreasonable." No standard is given as to what cause must exist for searches.

It's just not accurate to say the text of the Constitution clearly prohibits searches in these circumstances. "Reasonable" allows a calculation based on the circumstances, the evidence supporting the search or seizure, and the manner in which the search or seizure is performed. The SC doesn't say that U.S. citizens aren't protected by the Constitution in these circumstances. It says these circumstances may lead to a different conclusion when analyzing the word "reasonable."

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Everard
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I'm not saying it "clearly" contradicts these acts. I'm saying this is what I "think" it says.
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Dagonee
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My objection was to the use of the word "text." The text doesn't contradict much of anything. Most of our protections under the fourth and fifth are things that are not in the text: Miranda, the general warrant requirement, etc.
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Everard
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Now that depends on the definition of the word text [Smile] Its not explicity spelled out, but I think the textual intent exists.
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Dagonee
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OK. I agree the intent is there, but I am almost certainly using a more technical definition of "text."
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Everard
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I'm using the "Literature" definition I suppose [Smile]

But yes, this is where we normally seperate in how we read the constitution.

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IrishTD
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Quote Everard:
quote:
Ignoring the fact that one end is a US citizen on US soil is at best dishonest.
How are you so sure they are citizens? Anyone can feel free to correct me, but I believe most of the 9/11 hijackers were NOT U.S. citizens. I'm not so sure I'd make the assumption that the folks being listened to on U.S. soil are citizens.
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Everard
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You'd think the president would have denied that the NSA had gathered any intelligence on US citizens by now, considering that is the primary reason the NSA program is being questioned, wouldn't you?

heres one of the original stories.

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/16/AR2005121600021.html

That opening paragraph has yet to be contradicted by anyone, so far as I know

[ January 28, 2006, 07:25 PM: Message edited by: Everard ]

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flydye45
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Yes Ev, Bush is going to come out with lists of suspected terrorists, their addresses, their citizenship status, the rate of communications with foreign terrorists all to defend himself from his critics for doing something HE believes to be legal. The two guys who are still too stupid to change their tactics after this latest leak (which the critics see as much less damaging then outing a desk jockey in Langley) need that last little revelation to get the clue to get out of town so we can start at zero once again. I don't see that as reasonable.
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Everard
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Ignoring the dig on the cia outting bit, saying "we're not spying on US citizens" isn't going to do any more damage to the program then has already been done, AND, would get a whole lot of congressmen of both parties off his back.

Net positive for bush, unless he can't honestly say that.

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Jesse
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To modify Ev's statement:

"We're not spying on US citizens without complying with FISA."

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flydye45
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Just the fact that you are able to admit there has been damage done to our intelligence gathering is like a refreshing breeze. Too bad it's over and done. Since the critics of the war get to B**** that we might have caught Osama if we had just continued in Afganistan, does that mean I get to b**** about the ending of this program keeping us from the same? [Smile]
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The Drake
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flydye, that is not a very reasonable argument. Under your constraints we would be allowed to talk about a possible breach of civil liberties until... when? When Iraq and Afghanistan are stabilized and the troops are home? Never?

It is this kind of thinking that led to millions of Americans standing aside while our citizens of Japanese ancestry were herded into desert concentration camps - even as we were fighting fascism.

All in the name of national security. And I guess it worked, certainly none of those people spied on anything except their own miserable living conditions.

I'll take the tradeoff of being a little less effective in our intelligence gathering.

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flydye45
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You are correct. It is not a reasonable argument...for either side. We are still in Afganistan. We just knocked off 4-5 of their high up leaders. So their argument is bogus.

Let me try an analogy. USSR Kiev, a Soviet sub pulls off the U.S. coast in the Seventies. We become aware of it and send our own sub close by to watch from periscope depth. During the course of time, some men get off and go to America. Additionally, some men come from America and go to the sub.

Should we be able to follow these men and see who they meet? Should we determine the identity of these people who are coming here of their own volition? And, in international waters, do we need a warrant? Well, Geraldo just went out to interview the Captain of the Kiev, so that's done.

Now, this is not a perfect analogy. From what I understand about how the program is working, and please correct me if I'm wrong, there is an act of volition which is being used to filter whom we scrutinize. "Domestic spying" is a beautiful canard which makes it seem that Bush is randomly throwing darts at a phone book. Some would love to blur the exact character of those who we are looking at.

Another argument not being addressed here is whether FISA is a flawed law. FISA was made before little things like cell phones, e-mail and the like. I think if FISA isn't allowing us to observe folks who are calling 1-900-TORA-BORA, that needs to be addressed. Are their circumstances where American civil liberties can be waived by dint of personal actions?

And lastly, I am insulted that you would compare these two things. Why not take the final step and accuse me of wanting a muslim "final solution"? I've said, hmm...about 5 times that I think Bush needs to play a little less fast and loose...even if most Americans don't care. The fact that the warrants can be gained retroactively gives him less credibility here.

[ January 30, 2006, 10:30 AM: Message edited by: flydye45 ]

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The Drake
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flydye45,

Since you have said, "about 5 times", that Bush needs to play a little less fast and loose, then what is it exactly that you want done?

My impression is that you want the lawmakers to handle all this behind closed doors.

quote:
flydye45:
I am just stating his position. And seeing how sievelike Congress can be, I wouldn't trust them all on a program like this either.

Edited to add: You are correct. He hasn't informed Congress. Nor should he. I think he should inform the intelligence committees. And if the committees leak this, they should be strung up. Someone leaked it. Where is the rope?

So, if Congress doesn't know (or portions of congress), how are they going to challenge this or safeguard our liberty? In large part it is the responsibility of the judiciary to protect our rights. Do they get to be involved? What happens if the intelligence committee did know, some or all members objected, and the administration continues the practice? I do agree with you, the person in question should have stood up and said, "This came to my attention. This is wrong." That doesn't really change the situation.

And as far as being insulted by the comparison to the Japanese internment, do you remember writing this?

quote:
Just off the top of my head, the President has the right to suspend habeas corpus, jail reporters, censor newspapers, intern large masses of funny looking immigrants or people with Italian and German names, launch attacks on foreign soil without asking Congress, and keeping people from lawyers.
It sounds an awful lot like support for these practices.
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Lifewish
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quote:
Another argument not being addressed here is whether FISA is a flawed law. FISA was made before little things like cell phones, e-mail and the like. I think if FISA isn't allowing us to observe folks who are calling 1-900-TORA-BORA, that needs to be addressed. Are their circumstances where American civil liberties can be waived by dint of personal actions?
I'm not an American so this is really none of my business, but I'd say that, in an ideal world, it should not be possible to cause your civil liberties to be waived by performing legal actions. So snooping on someone who calls 1-900-TORA-BORA is perfectly OK - as long as you've passed the Tora Bora Telephony Act rendering such phone calls illegal. That way, apart from anything else, the executive branch* can get independent confirmation from the legislative branch that their actions are justified.

Unless, of course, the executive branch doesn't want such legislative oversight. In which case, I for one would be somewhat worried about that executive branch.

* I may be confusing the executive and judicial branches - if so, I apologise.

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javelin
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quote:
I'm not an American so this is really none of my business,
If you'd just said "this is really none of my business", you could have dropped the "I'm not an American", and we all would have assumed it anyway. [Wink]
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Lifewish
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I could have been an American who didn't use telephones...
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javelin
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quote:
Originally posted by Lifewish:
I could have been an American who didn't use telephones...

Ah, but then you would have had to say "I really don't CARE, but..."

An American NEVER says "it's none of my business but...", unless they are kidding. [Wink]

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Everard
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"An American NEVER says "it's none of my business but...", unless they are kidding. "

no no no. An American says "Its none of my business, but..." unless he's about to stick his nose into it.

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flydye45
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The previous poster whom I referenced said the President didn't have the powers he is assuming here. I referenced many dreadful powers that the Presidents have legally used with full muster of the Congress and Courts. I gave them no moral support, but instead showed that listening to specific "Americans" calling/texting known enemies of Americans is comparatively small potatoes. Now if you assume that every single one of those other actions was wrong, then the fact that this is a smaller infringement of rights is meaningless. We are in a different time, but has the power of the president changed? Not really, however much his opponents wish it so. So Bush isn't operating in a legal limbo. Let someone with standing bring it to the court.

Oh wait. No one has been charged with anything, the whole point of the damage done by illegal searches and seizures.

I'm arguing both sides of the issue here, so forgive me if this seems a little muddled. I think most Americans are on the issue. ACLU scholars can scream "domestic spying" but it's kind of hard to get outraged at Bush listening to whomever OBL is calling here...

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The Drake
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I'm not a lawyer. I don't know if previous transgression provide a sound platform for what's going on here.

How is somebody with standing going to bring it to court? Do they even know they are being listened to, so that they might object?

Do we even know that people haven't been taken away to jail based on such information gathering? Would they be able to communicate to the public? How?

Would they be charged at all? Or would they be held incommunicado? Or shipped outside the US?

We don't have all the facts. We're told we don't get to have the facts, because it would violate security. This situation is literally not distinguishable from a situation where domestic dissidents are charged with a crime and hauled away. The Soviets were very good at this sort of thing.

My personal solution, is that I'd like to see someone that I trust get the information, and then describe it in terms that make me comfortable with it. I'd take Jimmy Carter, who has exhibited more integrity than any other high-level politician than I can think of.

You seem to envision these calls as coming from OBL and al-Zawahiri. But what if it is Ahmed from London, who went to school with someone who knew a guy whose brother was in Hamas? What if it is just any foreign call to the middle east, for any reason? This is why we have the court, to determine the legitimacy of the action. When the executive bypasses the court, it smacks of a fishing expedition - at best. I don't think the court would have any trouble granting permission for surveillance in any of the cases you bring forward.

I'm no fan of the ACLU, or the crap-screamers that think FBI infiltration of domestic organizations is a human rights violation. There are limits, however, and this administration has just crossed my threshold.

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flydye45
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http://www.suntimes.com/output/news/cst-nws-camera31.html


This attitude, which seems to transcend Left or Right, is much more troubling to me. It isn't the gray issues which people are willing to stomache. It is the popular acceptence of chains that I worry about.

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Godot
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I only really have two main qualms with Bush going outside the law and ignoring the FISA court and the Constitution:

1) There was no need to. He lied when he implied FISA wasn't agile enough. How much more agile can you get than a retroactive warrant. The only reason for Bush to skirt FISA was because he knew what he was doing was wrong.

2) Claiming that being C-in-C automatically grants you such extraordinary powers means that he can, at any time, break any law, ignore any part of the Constitution and accept no oversight as long as he does it for our own good. I'm sorry. I trust no-one that much, least of all Bush.

[ February 02, 2006, 11:27 AM: Message edited by: Godot ]

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