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» The Ornery American Forum » General Comments » Judge Rules Bush's Surveillance Program Unconstitutional (Page 1)

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Author Topic: Judge Rules Bush's Surveillance Program Unconstitutional
Godot
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FROM AP: A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

Three cheers for the judicial branch!

The judges opinion is here.

Glenn Greenwald's analysis and opinion is here.

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Pete at Home
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"We have seen in Hamdi that the Fifth Amendment of the United States Constitution is fully
applicable to the Executive branch’s actions"

Nope. Hamdi does not show that. The 5th amendment as applied to the executive is still limited by Congressional rules on capture, and there's a host of Supreme Court cases that show that starting with US v. Brown.


" and therefore it can only follow that the First and Fourth Amendments must be applicable as well."

If applied fully to ALL executive actions, that would give full Habeas treatment, to EVERY Prisoner of war and every person quarantined by executive agencies for fear of spreading Ebola or some other deadly contagion, even though there's no crime to be charged.

We'll see how the upper courts deal with this line of reasoning [Big Grin]

[ August 17, 2006, 02:03 PM: Message edited by: Pete at Home ]

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Colin JM0397
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What will be more telling is how Bush and staff react to this - if they react at all.

- Ask for a... whatdyacallit, where you get a hold on the decision until you can appeal?

- Just ignore it.

- Ignore it with a big screw you.

- Comply

- Appear to comply but keep on trucking. After all, how are we, the public, to have any clue if a secret program has stopped or not?

One of the major complaints about Bush has been he steamrolls the other 2 branches when things don't go his way.

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flydye45
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Assume it isn't reversed, though there seems to be quite a few grounds for a case at first read.

Are the current set of intelligence tools available to the nation able to keep us (reasonably) safe? The Professor wasn't expected to fix the Minnow with coconuts. Why should the administration be expected to keep us safe with inadequate tools? You think they are adequate? Only time will tell.

I also have to laugh at the journalists complaining about the "chilling effect" the TSP had on their contacts when they themselves were responsible for revealing the same. Heaven forfend that some of their communications with terrorists and terror suspects might lead to actually catching them. Way to help out the home team guys!

[ August 17, 2006, 02:26 PM: Message edited by: flydye45 ]

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Pete at Home
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When I see an "anti-defamation" group fighting against anti-terrorist measures, I can't help remember that the Italian-American anti defamation league was started and funded by Mafia. Given that precedent, the US military intelligence would have be nuts not to monitor that particular plaintiff during a war with Al Qaeda.
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Pete at Home
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Ultimately under the constitution, the president answers to Congress and not to the courts. If we don't like that system, then we can amend the constitution to put the courts in charge of the president. Until then the constitutional options are impeach a president who violates a court order, or exercise one's first amendment right to bitch.
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Colin JM0397
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I agree we need our tools, but, personally, I'm not a fan of executive orders/findings. If it's that important, get congress to pass something.

There's a very good reason it's a pain in the arse to get legislation passed.

Executive orders circumvent the checks and balances.

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Everard
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"Ultimately under the constitution, the president answers to Congress and not to the courts. If we don't like that system, then we can amend the constitution to put the courts in charge of the president. Until then the constitutional options are impeach a president who violates a court order, or exercise one's first amendment right to bitch."

I'm not sure I entirely agree with your statement, pete, unless I'm misunderstanding you. While certainly the president has the power to violate a court order, and there's not much the courts can do about it, that doesn't mean that under our system of government, the president is entitled to thumb his nose at the courts. THere's no mechanism for the courts to enforce ANYTHING they do without executive or legislative assistance, but that doesn't mean that criminals do not answer to the courts.

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Everard
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"Are the current set of intelligence tools available to the nation able to keep us (reasonably) safe?"

Hypothetically speaking, if the only way to keep us reasonably safe was to have a soldier in every living room and a spy in every bedroom, is that an acceptable trade-off?

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Pete at Home
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quote:
While certainly the president has the power to violate a court order, and there's not much the courts can do about it, that doesn't mean that under our system of government, the president is entitled to thumb his nose at the courts. THere's no mechanism for the courts to enforce ANYTHING they do without executive or legislative assistance, but that doesn't mean that criminals do not answer to the courts.
Nothing I said contradicts anything that you said, Ev.

For further referemce Ev ... in the parlance of the court, no one is a "criminal" until they are found guilty in a court of law. And no president's guilt is even ASSESSED in a court of law, until they've been impeached by Congress and convicted by the Senate.

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Everard
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"For further referemce Ev ... in the parlance of the court, no one is a "criminal" until they are found guilty in a court of law. And no president's guilt is even ASSESSED in a court of law, until they've been impeached by Congress and convicted by the Senate."

I know. I'm not an idiot, Pete.

"Nothing I said contradicts anything that you said, Ev."

Then I guess I misunderstood what you were saying.

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Pete at Home
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Ev, you may remember a previous argument we had where I lambasted John Kerry's campaign for the astonishing ignorance and insensitivity of celebrating Andrew Jackson's presidency on the same page where they declared their sympathy for Native American causes?

In that thread, I condemned Jackson for violating a Supreme Court order and allowing the ethnic cleansing of my Cherokee ancestors.

My complaint was an example of exercising my first amendment right to bitch. As far as I know, it's my only constitutional recourse against a president who thumbs his nose at the courts, when Congress refuses to impeach that president.

[ August 17, 2006, 02:56 PM: Message edited by: Pete at Home ]

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Everard
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Ok, I'm guessing you've read that post above, so I'm not going to edit it. Consider this the edit.

After someone has been found guilty in a court of law, they are a criminal. The courts have no power to DO anything about that, though, without the executive or legislative branches.

Likewise, the president can break the law by, for example, implementing a program that, like this one, is ruled on by a court of law. If the action is deemed to be illegal or unconstitutional, the courts have no power to do anything about that, without the executive or legislative branches.

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Everard
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"My complaint was an example of exercising my first amendment right to bitch. As far as I know, it's my only constitutional recourse against a president who thumbs his nose at the courts, when Congress refuses to impeach that president."

I KNOW there's nothing constitutionally preventing an ex-president from being prosecuted and convicted, although he'd likely be pardoned before that could happened, but there might be congressional measures preventing legal action against an ex-president.

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Pete at Home
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I know you are not an idiot, Ev. I just didn't want anyone to think that I'd ignored that part of your argument. The "for further reference" flourish was intended to amuse you, not degrade you, and I apologize if it came off in that vein. I guess we're not at the stage where we can banter yet, and I should have known that.

"After someone has been found guilty in a court of law, they are a criminal. The courts have no power to DO anything about that, though, without the executive or legislative branches.

Likewise, the president can break the law by, for example, implementing a program that, like this one, is ruled on by a court of law. If the action is deemed to be illegal or unconstitutional, the courts have no power to do anything about that, without the executive or legislative branches."

Exactly. Which is one reason why the constitution makes the President ultimately immune to the courts: because the courts were structurally incapable of disciplining the president to begin with. It would subvert the rule of law to give the courts constitutional power that they would not reasonably be able to enforce.

[ August 17, 2006, 03:06 PM: Message edited by: Pete at Home ]

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Pete at Home
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quote:
Originally posted by Everard:
"My complaint was an example of exercising my first amendment right to bitch. As far as I know, it's my only constitutional recourse against a president who thumbs his nose at the courts, when Congress refuses to impeach that president."

I KNOW there's nothing constitutionally preventing an ex-president from being prosecuted and convicted, although he'd likely be pardoned before that could happened, but there might be congressional measures preventing legal action against an ex-president.

When it comes to his actions as president, I think it's the other way around. The doctrine of sovereign immunity means that congress would have to pass a bill specifically authorizing lawsuits against former presidents for some specific class of misconduct. Believe it or not, there are numerious bills that ome might almost characterize as reverse bills of attainder, giving a victim or set of victims a lawsuit-like award and bypassing the courts altogether.
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Everard
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Interesting.
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hobsen
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Since Presidents rarely get impeached, Bush can do pretty much what he wants. But what he does can still severely injure his party, as President Clinton did with his conduct with Monica Lewinsky. Now Bush's behavior has convinced voters that government spies are looking at their bank records and listening to their phone calls and opening their mail. And voters normally answer such suspicions by putting the other party in power.

More to the point, this program gained Bush absolutely nothing. He had a secret court approving every request for such warrants, and granting them even after the wiretapping had been done. So all he did was to offend almost everyone in the United States, and his own supporters perhaps more than his opponents. The people most concerned about governmental intrusions on their privacy tend to be Republicans.

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Pete at Home
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"More to the point, this program gained Bush absolutely nothing."

{It's captured a dozen or so actual terrorists, but let's not talk about that. After all, once the court stuffs a military issue into it's 4th amendment thought process, it doesn't allow itself to look at the ACTUAL results of a program, but just what the evidence that the court knows about that supposedly motivated the existence of the program in the first place. Which is precisely why the constitution does not subject the searches and seizures that occur as part of WAR into the 4th amendment. The courts are simply not equipped to THINK about these matters. To equip the courts to think about military matters would evicerate our real 4th amendment protections, as Chief Justice Jackson explained in his dissent to Korematsu.)

WE MUST CONTINUE TO SEPARATE CRIMINAL AND MILITARY MATTERS DESPITE THE ASTONISHING COLLUSION OF THE LEFT AND RIGHT TO TREAT THEM UNDER THE SAME UMBRELLA

[ August 17, 2006, 03:42 PM: Message edited by: Pete at Home ]

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LinuxFreakus
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Its about freakin time this got formally shot down (at least for now).
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Everard
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"{It's captured a dozen or so actual terrorists,"

Source please? And would these terrorists have been caught without it?

And is a dozen terrorists worth several thousand innocent people who had their rights violated?

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Everard
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" Which is precisely why the constitution does not subject the searches and seizures that occur as part of WAR into the 4th amendment."

It doesn't exclude them, either.

Of course, the concept that we can wage war against our own citizens, and under that umbrella remove their constitutional protections is one that is deadly to our republic if allowed to survive.

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Pete at Home
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Source: Same news source as in the original thread on the program.

"And would these terrorists have been caught without it?" Source did not say.

"And is a dozen terrorists worth several thousand innocent people who had their rights violated?"

Depends which rights we're talking about. Our right to property is infringed on with every tax dollar spent to catch a terrorist. That would be a definite yes. If we were talking about torturing, raping, or incarcerating seveal thousand innocept persons, I'd call that a definite NO. (Even though nationally we've decided that keeping several thousand innocent persons in prison where they are raped tortured and killed is worth the price of keeping other thousands of guilty persons in prison.)

I would sacrifice my right to phone privacy in the name of saving lives, yes. It seems astonishingly unethical to place telephone privacy as higher priority than saving human lives.

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Pete at Home
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"Of course, the concept that we can wage war against our own citizens, and under that umbrella remove their constitutional protections is one that is deadly to our republic if allowed to survive."

On the contrary, our republic would never have survived the civil war if our courts had not grasped that our government could wage war against our own citizens and that certain constitutional protections were abrogated under such a war. See THE PRIZE CASES.

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Pete at Home
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See particulary the part of THE PRIZE CASES that says [paraphrasing] that the constitution not only allows, but REQUIRES the president to take action in the case of invasion, i.e. when enemy feet are on American soil.

Sleeper agents triggers such language.

The president's oath of office does not create an exception for when a district court says don't do X. If the president believes that the constitution requires him to commit an action, then only Congress has power under the constitution to stop him.

[ August 17, 2006, 04:05 PM: Message edited by: Pete at Home ]

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Everard
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"Source: Same news source as in the original thread on the program."

Link please. As far as I am aware, this program has only identified 50 people on whom further action is required, and none of these people have been prosecuted for any crimes as of yet.

"I would sacrifice my right to phone privacy in the name of saving lives, yes. It seems astonishingly unethical to place telephone privacy as higher priority than saving human lives."

But the NSA did not ask each person whose rights it violated if they could listen in on phone calls. And constitutional protections are not about ethics, they are about the rule of law.

"On the contrary, our republic would never have survived the civil war if our courts had not grasped that our government could wage war against our own citizens and that certain constitutional protections were abrogated under such a war."

The constitution specifically mentions rebellion as a time when protections can be suspended. I don't currently see a rebellion.

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Everard
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"See particulary the part of THE PRIZE CASES that says [paraphrasing] that the constitution not only allows, but REQUIRES the president to take action in the case of invasion, i.e. when enemy feet are on American soil.

Sleeper agents triggers such language."

I would tend to disagree with that analysis. Sleeper agents are criminals, not armies.

Under this analysis, our constitutional rights don't exist.

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Pete at Home
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quote:
Originally posted by Everard:
"Source: Same news source as in the original thread on the program."

Link please.

I see no point in finding the link for you since you've said outright that it would make no difference to you if it were true. You're as capable of using the search engine as I am. Or don't believe me, and just accept that I hold my position because that's what I've been told. If this program had not had any successes, then I would not even consider defending it.
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Everard
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Well, pete, YOUR position depends on the efficiency of this program.
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flydye45
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"Link please. As far as I am aware, this program has only identified 50 people on whom further action is required, and none of these people have been prosecuted for any crimes as of yet."

And you won't. As you stated on another thread, when you have a KNOWN terrorist, you follow him around and find his unknown cohorts.

Having a computer program grab words like bomb, infidel, etc is not the same as having Meese running through Joe Public's actual conversations. While we don't know the actual mechanics, it's like the question in "1984", how many watchers do you need to watch everyone? There is no way that the NSA has enough people to personally monitor every call. The vast majority are probably ignored well before flesh becomes involved. It is a privacy violation, but not much of one. Certainly on par with "warrentless" cameras in a shopping mall or phone monitoring at work.

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Everard
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" It is a privacy violation, but not much of one. Certainly on par with "warrentless" cameras in a shopping mall or phone monitoring at work."

Well, no. One is a constitutional violation, the other isn't.

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Wayward Son
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Of course you realize, flydye, that you've just invited Mr. Meese to run through our conversation here. [Wink]

Hopefully he'll learn something! [Big Grin]

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LinuxFreakus
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What is the point of having a constitution if we let the president walk all over it? If people honestly think warrantless spying is a good thing then why do we need warrants at all?

<insert "in soviet russia" joke>

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Pete at Home
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quote:
Originally posted by Everard:
Well, pete, YOUR position depends on the efficiency of this program.

Yeah. So? [Big Grin]

Some say that we violate only people's rights for our amusement, or when some strange gods demand it? I say we violate rights only when it leads to protecting more rights than were violated.

One might even say that securing our most important rights was the purpose of government (which by its existence, violates some rights we would otherwise have).

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Pete at Home
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"What is the point of having a constitution if we let the president walk all over it?"

What's the point of having a constitution if those that pretend to interpret the constitution don't bother to read it?

To turn the question on you judiciodolaters out there, why don't we dispense with the actually constitution and just pretend that we have one?

[ August 17, 2006, 05:01 PM: Message edited by: Pete at Home ]

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kenmeer livermaile
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Corkscrew asides: in the workplace, keystroke monitoring software and email privacy invasion have been a corporate given for 10 years or, yes? Not that this justifies anything one way or the other; it just illustrates how different the private sector can be from the public sector.
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Pete at Home
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Issues aside, what's with the corkscrew? That sounds like a delicious turn of phrase, no pun intended, but I don't grok. Please explain.
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LinuxFreakus
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quote:
Originally posted by Pete at Home:
"What is the point of having a constitution if we let the president walk all over it?"

What's the point of having a constitution if those that pretend to interpret the constitution don't bother to read it?

To turn the question on you judiciodolaters out there, why don't we dispense with the actually constitution and just pretend that we have one?

What's your point Pete? The best response you have is to avoid the question?
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Pete at Home
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I think it's singularly dishonest to make a rhetorical question and then accuse someone of "avoiding the question," Linux.

I will use shorter words that you will hopefully understand this time explain why my previous answer did actually answer with your "question:"

if the constitution says the president has power X, and the president uses power X, then the president is not "walking on the constitution."

If Linux still does not understand that, would someone else like to have a go?

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FiredrakeRAGE
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Pete at Home -

I'm not understanding your earlier argument. I've three questions - first, why do you think that the executive branch should not be restrained by the auspices of the Constitution? Secondly, why would giving all prisoners of war 'due process' cause any issue? Third and lastly, what is the difference between a citizen that has been held for terrorism (or related offenses) but has not been charged, and a totally innocent citizen that is being held for unknown reasons?

For the moment, I'm trying to figure out your exact position on this subject.

--Firedrake

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