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Author Topic: Was for it before he was against it... who's this?
Ben
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Nope, not John Kerry this time. It's Jimmy Carter, previous POTUS.

Carter does surveillance
quote:

Carter allowed surveillance in 1977

By Charles Hurt
THE WASHINGTON TIMES
February 11, 2006

Former President Jimmy Carter, who publicly rebuked President Bush's warrantless eavesdropping program this week during the funeral of Coretta Scott King and at a campaign event, used similar surveillance against suspected spies.

...

But in 1977, Mr. Carter and his attorney general, Griffin B. Bell, authorized warrantless electronic surveillance used in the conviction of two men for spying on behalf of Vietnam.
The men, Truong Dinh Hung and Ronald Louis Humphrey, challenged their espionage convictions to the U.S. Court of Appeals for the 4th Circuit, which unanimously ruled that the warrantless searches did not violate the men's rights.
In its opinion, the court said the executive branch has the "inherent authority" to wiretap enemies such as terror plotters and is excused from obtaining warrants when surveillance is "conducted 'primarily' for foreign intelligence reasons."

Leaving aside Carter's seemingly hypocrisy, how does this precedent affect Bush's actions? The article goes on to say that Congress's enactment of FISA changed the procedure, but since the President's authority to do such surveillance was Consitutionally granted, only an amendment to the Consitution is supposed to be able to take that away. Do we need an amendment? Thoughts?
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javelin
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Here's the thing: I've said from the beginning that the wiretapping is likely quite legal, but that it's also wrong. This just confirms it for the one hundreth time.
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msquared
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Didn't Jimmy Carter sign FISA into law in 1978? If so then he did not violate the law.

The thing Bush is saying is that Carter can not give over an authority given to the President, even if it is written by Congress. The law is unconstitutional.

However I think Bush should do/have done two things.

First, delcare war officially on terrorist.

Second, take the law to the SC. Challange it.

msquared

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A. Alzabo
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quote:
Here's the thing: I've said from the beginning that the wiretapping is likely quite legal, but that it's also wrong. This just confirms it for the one hundreth time.
I think the NSA's current stuff is probably in questionable territory and the law needs to be clarified or updated instead of ignored.

Remember, Carter didn't have FISA in 1977. So there was no established legal mechanism for this sort of thing.

Since the FISA courts do exist now (FISA itself dates from 1978), and the mechanism is in place, oughtn't the government to use them, or come up with a good reason why not?

Edited to add:

msquared beat me to the punch. I'm not upset by the wiretapping as much as I am by the apparent lack of justification. Follow the established legal process or challenge/change it!

[ February 13, 2006, 04:55 PM: Message edited by: A. Alzabo ]

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Joe Schmoe
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Another thing to keep in mind is the degree to which this power is being used. From what I've read about Carter, his use of this power was pretty focused on a small number of people, and as pointed out, he did not have FISA.

Bush on the other hand, has FISA and is bypassing it. He is also taking a shotgun approach with the surveilance power. I don't think its fair to compare the two. Thats why Bush is taking flak. He should have observed the niceties and had FISA give the nod to each case as well as taken more care regarding the scope of the surveilance.

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Joe Schmoe
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quote:
Originally posted by javelin:
Here's the thing: I've said from the beginning that the wiretapping is likely quite legal, but that it's also wrong. This just confirms it for the one hundreth time.

Just saw this and decided I had to post. I agree completely. [Big Grin]

Now what would it take to make it illegal? Or at least get the government to allow the private sector to use decent levels of encryption.

[ February 13, 2006, 05:21 PM: Message edited by: Joe Schmoe ]

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flydye45
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The private sector already uses encryption. The logistical problem is can you get grandma, your wife and the cabana boy to buy (and more importantly use) the gear. Unless I'm missing something. The NYSE uses it and there are lots of computer encryption out there.
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sbkilb
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Joe-
Are you sure you are not confusing FISA wiretapping with the NSA Echelon project instituted under the Clinton administration?

I think the wiretap scandal is just more mud thrown at the wall. A complete political ploy. I have no problem with the system in place with oversight as it has been explained.

Brian

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The Drake
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I'm sorry, what oversight? Telling a couple of Congressmen that such a program exists? Not good enough for me.
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RickyB
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1977 was before the FISA act.

Clinton wanted to do something similar as well. Doesn't make it right, and he didn't do it anywhere near the scale that shrub is.

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Wayward Son
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This doesn't help Bush's case much, since it was merely a Court of Appeals decision that the President had Constitutional authority for the wiretaps. And it was before FISA, so the court could not have considered it. So I don't see this helping the President much, except as an example that some judges did consider it Constitutional, sort of.

The bottom line, though, is that FISA was specifically written to limit the President's power in this specific respect. It does not appear onerous (especially since he can ask for the court orders after the fact). So I see no reason to why it was ignored.

The only reason I can come up with is that Bush knew that even sympathetic judges would not allow the wiretaps. Which means to me that he is not telling us everything that he did, and he actually did do something very illegal. [Mad]

Which is what happens when you are not forthcoming and let people's imagination run wild. [Wink]

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msquared
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Wayward

It might have been written for that reason and that reason is probably unconstitutional. Congress can write a law that is unconstitutional, the President can veto and the Congress can override the veto. Then the SC can rule on the law.

msquared

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flydye45
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Does Carter and the Congress have the authority to remove Presidental powers? Carter does not, and if the power was ruled Constitutional, the Congress doesn't either. So FISA may just have become irrelevant. I'll hold off until I read the court summary.

The level of court is irrelevant in that it has become a legal precedent by court order. The fact that it was a court of appeals makes it MORE binding, not less. If it was a single justice, you would have a point, Wayward. At this point, only a judgement of the Supremes can overturn it, if the law applies in the same way.

A telling quote:

[QUOTE] When Mr. Bell testified in favor of FISA, he told Congress that while the measure doesn't explicitly acknowledge the "inherent power of the president to conduct electronic surveillance," it "does not take away the power of the president under the Constitution."
Jamie S. Gorelick, deputy attorney general in the Clinton administration, agreed. In 1994 testimony before the House Permanent Select Committee on Intelligence, Miss Gorelick said case law supports the presidential authority to conduct warrantless searches and electronic surveillance for foreign intelligence purposes. [QUOTE]

This isn't a simple problem.

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flydye45
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I think we might have to go the Supremes route.
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Wayward Son
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I think that is how Bush should have handled it in the first place, instead of deciding for himself over Congress what powers the Constitution grants him. [Mad]
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flydye45
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Sorry. That's the way it seems to work. Presidents choose to use this unnamable penumbra of powers. Jefferson with the Louisiana Purchase, the much described FDR, Lincoln, and JFK powers etc. It's kind of like the police. You have as much power and authority as people let you have. If there were protests in the streets, beyond the ACLU and the other unwashed, do you think Bush would be so intractable?

And if anything, whether you like it or not, Bush seems to have the preponderance of the law on his side on this one. Whether it's right or not is another question.

I fail to see the difference between Bush "assuming" it's his power, and Congress "assuming" they have the right to confer the same considering how undefined this is.

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The Drake
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I'm going to object to be characterized as one of the unwashed or belonging to the ACLU. There are a lot of people who are protesting this, albeit not in the street.

And why would people worry about a President edging toward the powers of a dictator, when they could be complaining about the smut on cable television or other such weighty matters?

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TommySama
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If the calls monitored were either from outside terrorists calling here, or suspected terrorists here calling outside of the country, than why is Bush catching so much dirt from this? Maybe actually appealing to the Supreme Court to decide whether or not this is a constitutional act considering the situation would be more productive than just attacking Bush.
Whenever I hear Senators attack Bush, but not do anything about it, I assume it's because it is politically motivated and doesn't have any real substance to it.
Please prove me if I'm wrong, I'm no expert on the issue, but why would Bush have even announced the situation if he were "edging toward the powers of a dictator..."?
(And on a side note, although I don't mind the president spying on possible/suspected/known terrorists, I don't think that saying because Jimmy Carter did it, that it is okay.)

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KnightEnder
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Penumbra? Excellent, Fly!

KE

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LetterRip
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quote:
than why is Bush catching so much dirt from this?
Because if they were legitimate wiretaps, then going through the FISA provisions is entirely reasonable. There appears to be no legitimate reason to not have abidded by FISA.

quote:
Whenever I hear Senators attack Bush, but not do anything about it, I assume it's because it is politically motivated and doesn't have any real substance to it.
Well in this case you'd be wrong, thus far there appears to be no good reason why he didn't abide by FISA.

quote:
Please prove me if I'm wrong, I'm no expert on the issue, but why would Bush have even announced the situation
He didn't announce the situation - the story was broke in the newspapers.

LetterRip

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flydye45
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Yes, but he did notify Congress, not your usual dictatorial fare.
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