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Author Topic: NSA, Patriot
javelin
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quote:
Originally posted by Godot:
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.

I agree completely with #1, but I don't agree with #2, at all. The reason I think #2 is invalid is because Bush is claiming that very specific powers have been granted by the Constitution, which trumps any federal law. It's specific, not as general as you describe it.

[ February 02, 2006, 12:09 PM: Message edited by: javelin ]

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Everard
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"The reason I think #2 is invalid is because Bush is claiming that very specific powers have been granted by the Constitution, which trumps any federal law. It's specific, not as general as you describe it."

His argument, though, is a general argument. There's no reason he couldn't use exactly the same argument to break any law he felt like... "It was necessary to protect the american people, and as commander in chief, I can do whatever I feel necessary to protect american lives."

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Dagonee
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quote:
There's no reason he couldn't use exactly the same argument to break any law he felt like... "It was necessary to protect the american people, and as commander in chief, I can do whatever I feel necessary to protect american lives.
That's not true. Bush is arguing that gathering foreign intelligence is an inseperable part of setting foreign policy and being commander-in-chief.

Such powers are not plenary outside their scope.

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javelin
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Everard, can you link that argument? That's precisely not the reading I've heard, which is why I was specific in what I said. Wartime powers, granted by the Constitution, are specific, not general - and that's what Bush is claiming - that he has wartime powers to do the telephone tapping that he did - not that war allows him to do whatever he wants - only what the Constitution allows. And surely, if the Constitution allows for something, then a federal law cannot override the Constitution.

I don't know what I said wrong the first time I wrote that.

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Everard
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" Wartime powers, granted by the Constitution, are specific, not general - and that's what Bush is claiming - that he has wartime powers to do the telephone tapping that he did - not that war allows him to do whatever he wants - only what the Constitution allows. And surely, if the Constitution allows for something, then a federal law cannot override the Constitution."

Actually, the constitution grants him no specific powers as commander in chief. It says that during war he IS the commander in chief, when called upon by the united states to serve that role. But teh constitution doesn't lay out what that means.

" Bush is arguing that gathering foreign intelligence is an inseperable part of setting foreign policy and being commander-in-chief."

*Nod* Yes. And it would be very easy to argue that it is an inseperable part of being commander in chief to roll over all our constitutional protections. If C-in-C powers trump the fourth amendment, then they trump the rest of our protections as well. E.G it is an inseperable part of being commander in chief to forbid speech in opposition to war time policy in order to protect military morale. E.G is it an inseperable part of being commander in chief to quarter troops, without legislation. Etc.

The argument Bush is making is a very general one, applied to a specific case. That the C-in-C powers trump the constitution, and that the congress cannot pass laws that restrict his powers as C-In-C. Even though the constitution doesn't say what those powers expressly are.

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Dagonee
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quote:
And it would be very easy to argue that it is an inseperable part of being commander in chief to roll over all our constitutional protections. If C-in-C powers trump the fourth amendment, then they trump the rest of our protections as well. E.G it is an inseperable part of being commander in chief to forbid speech in opposition to war time policy in order to protect military morale. E.G is it an inseperable part of being commander in chief to quarter troops, without legislation. Etc.
Yes, but several of those have already been ruled unconstitutional.

quote:
The argument Bush is making is a very general one, applied to a specific case.
No. One of the premises of his argument is about a specific element of conducting the armed forces - intelligence gathering. That premise is part of his argument.

quote:
That the C-in-C powers trump the constitution
He is definitely NOT saying this. It would be like saying the veto trumps the constitution.
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javelin
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Thanks Dagonee - you are better at this then I am [Smile]
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flydye45
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I don't see that is what he is claiming. He seems to be claiming not the overarching powers you imply, instead that intercepting foreign communications is a military, C in C matter. Of course he WOULD define it like that, just like ahem, others, want to cite it as Domestic Spying.

I don't know enough about FISA to know it's character, composition or agility.

The important question is, having taken these powers, will Bush, like FDR, Lincoln, JFK etc, put them back down when the threat is mostly neutralized.*


* I'm sorry. FDR and JFK died and never forsook these powers.

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Storm Saxon
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Rove counting heads...

Wasn't sure where to post this, and I didn't feel like really saying enough to warrant making a new thread.

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kenmeerbrieflyrevisits
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quote:
FDR and JFK died and never forsook these powers.
Midway through the war, Lincoln predicted that Habeas Corpus would quickly be re-instituted after the war was over. He could not bring himself to believe that Americans would allow the wartime suspension of Habeas Corpus to extend into peacetime, he said, "Any more than I am able to believe that a man could contract so strong an appetite for emetics during temporary illness as to persist in feeding upon them during the remainder of his healthful life." Lincoln died before he could see the writ of habeas corpus restored.
(1996 remarks by former Supreme Court Justice Sandra Day O'Connor found here. )

All three fit the category you define above.

Some blog out there contains these words I now quote:

"...there's a big difference between a civil war that immediately threatens to destroy the nation itself, and which is clearly delimited by a forseeable end to hostilities; and a generally and likely unending climate of fear."

Dear Ms. O'Connor further quoted Old Abe:

"What constitutes the bulwark of our own liberty and independence? It is not our frowning battlements, our bristling sea coasts, the guns of our war steamers, or the strength of our gallant and disciplined army. These are not our reliance against a resumption of tyranny in our fair land. All of them may be turned against our liberties, without making us stronger or weaker for the struggle. Our reliance is in the love of liberty which God has planted in our bosoms. Our defense is in the preservation of the spirit which prizes liberty as the heritage of all men, in all lands, everywhere. Destroy this spirit, and you have planted the seeds of despotism around our doors. Familiarize yourselves with the chains of bondage, and you are preparing your own limbs to wear them. Accustomed to trample on the rights of those around you, you have lost the genius of your own independence, and become the fit subjects of the first cunning tyrant who rises."

Prophetic little runt, wasn't he? I SO wish he hadn't been shot by that two-bit lunatic. Not only would his Voice have helped guide our nation through that horrible time, Reconstruction, but I believe he might have written a novel to rival those of Melville.

Postnote:

"...those occupying positions of power blithely claimed that only by invading and restricting traditional civil liberties would they be able efficiently to safeguard constitutional liberties from foreign foes. They remain fond of citing president Abraham Lincoln's justification for suspending habeas corpus during the American Civil War - that the suspension is necessary to provide for the public safety (what today we call "national security") - without going to Congress, which alone under the constitution can suspend habeas corpus during rebellion or invasion, or to the courts. Administration advocates conveniently ignore chief justice Roger Taney's Ex parte Merryman (1861), which notes previous Supreme Court opinions that only Congress has the power to suspend habeas corpus for reasons of "public safety" (chief justice John Marshall) and this power includes the exclusive "right to judge whether the exigency had arisen" (justice Joseph Story)." Asia Times

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Godot
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quote:
Originally posted by flydye45:
I don't know enough about FISA to know it's character, composition or agility.

I don't know much about it either, but the most salient point is that it allows retroactive warrants (i.e. spy first, ask FISA for a warrant later).

Bush lies when he says he FISA isn't "agile" enough.

Despite all the obfuscation by Bush, Gonzales, et. al., I've yet to hear a reasonable argument why Bush had to go around FISA. The only reason I can think of, is because what you doing is unjustifiable and wrong.

And I am soooooooo tired of the administration lies as they try justify this with references to ANYTHING that happened prior to 1978. I think George Washington should sue for libel.

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javelin
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On the FISA thing - I agree, it's agile enough, what with the retroactive warrants. The only thing I've heard about WHY Bush was going around it is that the court denied (for the first time ever) some of the requests for a warrant. I don't think that means Bush should go around the court, but I'd sure like to know why, wouldn't you?
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flydye45
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"Lied about the agility of FISA"

Hmm. So if Bush doesn't think it agile enough, but you do, he lied? How self fulfilling.

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