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philnotfil
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I really am worried about our country now [Frown]

NYTimes

quote:
Attorney General Alberto R. Gonzales made the case to the Senate Judiciary Committee yesterday that two potentially contradictory Congressional actions — one a 1978 law forbidding domestic surveillance without a court's permission, the other a 2001 resolution giving the president authority to use force to combat Al Qaeda — together mean that the executive branch is free to decide on its own to spy on communications between people in the United States and those abroad.
Using that interpretation of the law is there anything that the president can't do?

Some legal background:
quote:
Under the ordinary rules that courts use to harmonize potentially conflicting laws, the more specific one typically governs. Here, that would seem to be the 1978 law, the Foreign Intelligence Surveillance Act, or FISA, which created an elaborate legal scheme to regulate wiretaps, as well as a secret court that promptly hears warrant applications.

If a later law means to override or amend an earlier one, moreover, courts generally require it to say so specifically. The 2001 resolution authorized the president "to use all necessary and appropriate force against those nations, organizations or persons he determines planned, authorized, committed or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States."

Whether the 2001 resolution created an exception to the 1978 law depends on whether "necessary and appropriate force" includes surveillance of the enemy. Neither detentions nor surveillance was mentioned in the resolution. The Bush administration says both are natural incidents of the use of force in wartime.

In 2004, the Supreme Court ruled that the resolution encompassed the detention of an American citizen captured on a foreign battlefield in a conventional war. But critics say spying on communications involving people in the United States is very different from detaining an enemy combatant.

Last month the Supreme Court confronted a broadly similar situation. The administration argued that a general federal statute, the Controlled Substances Act, gave the attorney general authority to override a specific Oregon law, the Death With Dignity Act. The court rejected that argument, saying the federal law did not specifically grant such authority. Congress, the court said, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouse holes."

Under that reasoning, the authorization for force to head off terrorism may be too general to override the 1978 law.

Great quote from Gonzales:
quote:
Mr. Gonzales acknowledged yesterday that at least some members of Congress did not realize they were voting for a surveillance program when they voted for the force resolution.

"But we are a nation governed by written laws," Mr. Gonzales said, "not the unwritten intentions of individuals. What matters is the plain meaning of the statute passed by Congress and signed by the president. And in this case, those plain words could not be clearer."

My paraphrase: What we told them they were voting for doesn't matter, the words on the paper we got them to pass is what matters.

I was actually kind of surprised not to see something about this on here already, this is from yesterday's paper. It always worries me when the opposition doesn't mention things like this. Why aren't they?

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Koner
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quote:
It always worries me when the opposition doesn't mention things like this. Why aren't they?
Could it possibly be because members of the "opposition" have been aware of the surveillance and party to the weekly briefings on the surveillance program as the Vice President has said in several interviews?
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The Drake
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If Gonzalez is right, there are no limits on domestic authority. Federal troops could be deployed, and he could ignore the Comitatus Act.

The Army could set up roadblocks in strategic locations thought to contain terrorist activity, and search your car for explosives.

Any citizen could be detained for questioning without access to a lawyer and without cause, because they are suspected terrorists.

I don't know about all of you, but I'm not ready to turn the US into Northern Ireland to hunt out terrorists.

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philnotfil
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quote:
Originally posted by Koner:
quote:
It always worries me when the opposition doesn't mention things like this. Why aren't they?
Could it possibly be because members of the "opposition" have been aware of the surveillance and party to the weekly briefings on the surveillance program as the Vice President has said in several interviews?
I should have been more clear, I wasn't talking about other politicians (I think that everyone in national politics is on the same side, and it isn't the American people's), I was talking more about what I see online and in local papers. My local paper is very liberal, they use any excuse to bash Bush on the editorial pages, they haven't mentioned this stuff yet, usually they are right on top of things. On some of the online forums that I read, there are rabid groups of Bush haters. They haven't even mentioned this yet. Back when everyone was talking about the torture and killing of military prisoners, it got covered pretty well for a couple of weeks. Then it dissappeared, even while new (and worse) information was coming out.

I wouldn't expect the supporters of this administration to be shining a spotlight on this, but I certainly would expect to see people (not politicians, that would be bad for business) who are unhappy with what the government is doing to be pointing it out.

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Godot
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As if FISA isn't bad enough, we are supposed to allow Bush to ignore the FISA law (read: do anything he dang well wants) under cover of the [dramatic music] "War on Terror".

No-one should have the power he has taken and he should be impeached if only as a warning to future presidents who believe they are above the law.

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Mormegil
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I read this thread title as "Gonzo on wiretapping" and had this interesting picture of a Muppet giving his opinions on surveillance.
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