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 Post subject: Those of you dicussing Michael Moore are invited to leave the thread. Now.
PostPosted: Sat Dec 31, 2005 1:43 pm 
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Kakashi wrote:
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(1.B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and

Seems pretty clear to me. What about spies? ("agents of a foreign power")

Kakashi wrote:
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(4.B.b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

Okay, so we need to go to a judge if we want to spy on a US citizen.

Now, the admistration's position is that the president's war powers extend to overriding this law. The war powers that congress authorized after September 11th were limited in scope to those specifically responsible for the attacks. But, if you read <a href="http://www.usdoj.gov/olc/warpowers925.htm">Yoo's legal opinion</a> that most of this is based on, it basically states that the president has legal authority to deploy military force(s) against anyone suspected of being a terrorist.

Quote:
You have asked for our opinion as to the scope of the President's authority to take military action in response to the terrorist attacks on the United States on September 11, 2001. We conclude that the President has broad constitutional power to use military force. Congress has acknowledged this inherent executive power in both the War Powers Resolution, Pub. L. No. 93-148, 87 Stat. 555 (1973), codified at 50 U.S.C. §§ 1541-1548 (the "WPR"), and in the Joint Resolution passed by Congress on September 14, 2001, Pub. L. No. 107-40, 115 Stat. 224 (2001). Further, the President has the constitutional power not only to retaliate against any person, organization, or State suspected of involvement in terrorist attacks on the United States, but also against foreign States suspected of harboring or supporting such organizations. Finally, the President may deploy military force preemptively against terrorist organizations or the States that harbor or support them, whether or not they can be linked to the specific terrorist incidents of September 11.

This is scary stuff, because it places the US is in a perpetual state of war and allows the president to override any constitutional freedom he wants. But wait, what's this? FISA limits the president's war powers! (Gee Kakashi, you forgot this section ...)

Quote:
§ 1811. Authorization during time of war
Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

Ooops. The president can only use war powers for warrentless spying during the first 15 days of the war.


Since I forgot to mention it last time, I highly doubt impeachment hearings will even be started, let alone the possiblity of a finding against Bush. However, it is pretty clear that the administration is on the wrong side of the law.

Clarity Edit:
Impeachment is unlikely because Bush followed channels, not just because the House and Senate are Republican-controlled. The administration asked for legal opinions before acting, and when they did start the warrentless wiretaps, they informed the heads of the House and Senate intelligence committees.

[Edited by ptlis 2006-02-02 - the code BB code completely fucksplodes the layout on some templates so I switched it to a quote BB code]

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Last edited by Thinman on Sat Dec 31, 2005 2:30 pm, edited 1 time in total.

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 Post subject: Re: Those of you dicussing Michael Moore are invited to leave the thread. Now.
PostPosted: Sat Dec 31, 2005 2:18 pm 
Thinman wrote:
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...following a declaration of war by the Congress.


Correct me if I'm wrong, but did Congress actually declare war? They authorized use of military force, but I don't recall them declaring war.


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 Post subject: No, really. Get out.
PostPosted: Sat Dec 31, 2005 2:53 pm 
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I really don't know enough to answer that. Senate Joint Resolution 23 is titled "Authorization for Use of Military Force", which is much the same as the "Authorization for Use of Military Force Against Iraq". Are both/neither declarations of war?

In any case, are you going to argue that a state of war exists (wherein the president has war powers) without a declaration of war from congress? Or are you going to argue that a state of war does not exist and therefore the FISA's 'Time of War' section does not apply.

You should not be able to have both, however the Yoo memo throws in the ambiguous difference between 'declaring war' and 'making war'. Yoo argues that the president has the power to 'make war' and use war powers whenever it becomes necessary.

This is a novel (and I think, dangerous) opinion that had not been considered in 1978 when the FISA was written. It means that the president gets to invoke war powers whenever he wants, which is the opposite of the intent of the war powers act and the constitution.

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PostPosted: Sat Dec 31, 2005 3:30 pm 
I would argue that by legal standing, a state of war does not exist, hence FISA's 'Time of War' section does not apply.


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PostPosted: Sat Dec 31, 2005 3:48 pm 
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Then, where do the president's war powers come from? They are not authorized by congress, as you suggested above....

The point is that the administration has covertly tried to eliminate a constitutional check. Impeachment is unlikely because they've evolved what seems (to my non-lawyer mind) to be a plausible legal theory for it. On the other hand, if it goes to court, It seems likely that a judge would find that the constitution and FISA were intended to place limits on the president's war powers.

As evidence, consider the legal battle over detaining US citizens as 'enemy combatants' and whether or not military tribunals can be considered fair trials. The legal reasoning supporting the administrations position is pretty much the same. Lower courts have ruled consistently in favor of the plaintiffs, but procedural errors have so far prevented the trials from reaching the supreme court. So, there's no clear precedent.

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 Post subject:
PostPosted: Sat Dec 31, 2005 3:58 pm 
Thinman wrote:
Then, where do the president's war powers come from? They are not authorized by congress, as you suggested above....


Encarta wrote:
In the United States, the U.S. Constitution, in Article I, Section 8, vests this power in Congress, but the Supreme Court has held that the president may recognize a “state of war” initiated against the United States by a foreign power or by domestic insurgents.


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PostPosted: Sun Jan 01, 2006 9:13 am 
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Kakashi wrote:
... a state of war does not exist ...

Kakashi wrote:
Encarta wrote:
... the president may recognize a 'state of war' initiated against the United States ...

In other words, you really don't know the status of the president with respect to the rhetorical War on Terror. That's okay, neither do I, to be honest. It's a deliberately obfuscated legal situation that's designed to allow the Bush administration to attach more power to the Executive branch -- something that's been a platform plank of the Bush team since long before 9/11.

Assuming for the sake of argument that we are at war, then the president's powers can be classified, as I quoted on the last page:

Thinman wrote:
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Justice Robert Jackson identified three possible scenarios in which a president's actions may be challenged. Where the president acts with explicit or implicit authorization from Congress, his authority "is at its maximum," and will generally be upheld. Where Congress has been silent, the president acts in a "zone of twilight" in which legality "is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law." But where the president acts in defiance of "the expressed or implied will of Congress," Justice Jackson maintained, his power is "at its lowest ebb," and his actions can be sustained only if Congress has no authority to regulate the subject at all.

Congress has NOT given the president broad powers to use military force to fight terrorism in general. So the president's powers fall in the second category -- the zone of twilight. However, with respect to the spying, the administration acted in defiance of the will of Congress (explicit or implied, depending on how far you want to carry the argument about the 'Time of War' section of the FISA). This falls into the third category -- "things the president can't do".

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PostPosted: Sun Jan 15, 2006 11:34 pm 
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Update:

A Zogby US poll found 52% of respondees in favor of impeaching Bush over the illegal wiretaps. (margin of error: ±2.9%)

naturally, political affiliation played a role in the response, with 66% of Democrats and 59% of Independents favoring impeachment, as opposed to only 23% of Republicans.

This is up from 33% in a Rasmussen poll a month ago.

As stated previously, I think the "did it in the interests of national security" will ultimately save Bush from conviction, but I do not think this issue is going to go away, and I predict the "impeach him" percentage will rise even further as the year progresses.

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PostPosted: Thu Jan 26, 2006 5:50 pm 
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KirimaNagi wrote:
As stated previously, I think the "did it in the interests of national security" will ultimately save Bush from conviction, but I do not think this issue is going to go away, and I predict the "impeach him" percentage will rise even further as the year progresses.

You're probably right, much as I hate to admit it.

Also if I recall correctly the president himself can (and did) make the declaration of war. If this is correct it means that this entire "zone of twilight" thing goes to pot if the official war against Iraq ends, right? Hasn't the administration claimed repeatedly that the war is over and now we're just cleaning up? I'm sorry if my facts are a little fuzzy. I'm trying to stay speculative because I don't watch the news a lot and didn't do much research. I am curious though.

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PostPosted: Thu Jan 26, 2006 6:35 pm 
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Wrin wrote:
KirimaNagi wrote:
As stated previously, I think the "did it in the interests of national security" will ultimately save Bush from conviction, but I do not think this issue is going to go away, and I predict the "impeach him" percentage will rise even further as the year progresses.

You're probably right, much as I hate to admit it.

Also if I recall correctly the president himself can (and did) make the declaration of war. If this is correct it means that this entire "zone of twilight" thing goes to pot if the official war against Iraq ends, right? Hasn't the administration claimed repeatedly that the war is over and now we're just cleaning up? I'm sorry if my facts are a little fuzzy. I'm trying to stay speculative because I don't watch the news a lot and didn't do much research. I am curious though.
There never was a formal declaration of war. The president does not have the power to declare war.

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PostPosted: Thu Jan 26, 2006 6:37 pm 
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It was part of the War On Terror and apparently an act of liberation and therefore not a real war.

Anway, I find it hard to believe that anyone is going to impeach Bush. His presidency has been more succesful in terms of completing his stated objectives than Clinton's ever was. And America couldn't even get right of him.

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PostPosted: Thu Jan 26, 2006 7:02 pm 
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I hope he does get thrown out, but I don't expect it. I'm also horrified by the prospect of his replacement.

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PostPosted: Mon Jan 30, 2006 8:05 pm 
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And on the eve of the President's annual State of the Nation address, here is a viewpoint from a British MP (Member of Parliment).

Lord William Rees-Mogg wrote:
Bush's Glorious Revolution

The Justice Department in Washington has published a document that purports to repeal the Constitution of the United States. The apparent author of the document is a little known lawyer, Alberto Gonzalez, who is the attorney general of the United States. The question he is addressing is the right of the president of the United States to use his security powers to authorize the NSA to conduct surveillance without warrant. That, in itself, is a dangerous doctrine, which runs counter to the Federal Intelligence Surveillance Act of 1978. The broader doctrine of unlimited presidential authority seems almost insane, and certainly intolerable to many American constitutional lawyers. One could reasonably say that, if Mr. Gonzalez's doctrine is correct, the United States is no longer a free country.

The attorney general argues that the president's powers as commander-in-chief make him "the sole organ of the nation in foreign affairs." One only has to read this to see that it must be wrong, indeed that it is little more than a schoolboy howler. The Constitution is designed to balance the powers of the different branches of the government: the executive, the legislative and the judicial. No branch has absolute powers not subject to the scrutiny of the other branches. The president alone cannot make laws. That is the business of Congress. He cannot interpret the Constitution, for that is the business of the Supreme Court.

The president, or indeed any Justice of the Supreme Court, is open to impeachment if he exceeds his powers. The Senate has particular responsibilities for supervising the foreign policy of the United States, signing treaties, appointing ambassadors, or declaring war. Anyone who thinks that the president is "the sole organ of the nation in foreign policy" should tell that to the ghost of Woodrow Wilson, who failed to carry the Senate with him after 1918.

The attorney general's claim goes even further than that. Few of us had ever heard of the acronym AUMF, nor would I be sure how it should be pronounced. It stands for the Authorisation for the Use of Military Force, which was passed following the attacks on Sept. 11. In his white paper the attorney general claims that this resolution of Congress places the president "at the zenith of his powers." It adds "all that Congress can delegate" to his existing powers "in his own right." As Jacob Weisberg observes in the Financial Times, "AUMF is understood by the Justice Department to expressly authorize warrantless surveillance, even though the resolution that Congress passed neither envisaged nor implied anything of the kind."

For some time, I have felt that the atmosphere of this Presidency is beginning to resemble that of Watergate, which, as may be remembered, was also involved in the unauthorized tapping of telephones. Indeed, the 1978 Federal Intelligence Surveillance Act, passed during the Carter Presidency, was a post-Watergate Act, designed to clarify the situation the Watergate wire-tapping had left behind.

Parallel to the attorney general's claim in his white paper on surveillance practices is the president's response to the big civil liberty cases, which allege wrongful arrest, particularly in Guantanamo and the "extraordinary renditions," torture, and the holding of individuals, including U.S. citizens, without charge, access to lawyers, or trial.

In essence, the attorney general replies to these changes by arguing that the president does have absolute powers to disregard due process of law, powers that are either based on his constitutional role as commander-in-chief or on Congressional approval. In the later stages of the Vietnam War, President Nixon had undoubtedly come to think that the president was above the law. Earlier presidents had sometimes made the same mistake -- one could instance Franklin Roosevelt's plan to pack the Supreme Court or Lyndon Johnson's own conduct of the Vietnam War.

I had considerable sympathy with President Nixon's position. He was defending himself again a hostile Congress and media, trying to bring to an end a war he had not been responsible for starting. Nevertheless, the threat of impeachment over Watergate was a right judgment. No president is above the law; he derives limited and specific powers from the Constitution and from Congress, and he cannot go beyond them.

Undoubtedly Dick Cheney, the vice president, and Donald Rumsfeld, the secretary of Defense, bear much of the responsibility for the way in which the war on terror has been fought. President George W. Bush is not as cautious a man as his father, but he has been egged on by these senior members of his administration whom he trusted.

Yet there comes a point at which a president has to recognize that claims for his authority have been taken too far. He should then stop, and recognize that can't be right. The Gonzalez white paper makes claims that would put the president outside and above the law and the Constitution. "That can't be right" for George W. Bush anymore than it was for Richard Nixon in 1972 or King James II of England in 1688.

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PostPosted: Thu Feb 02, 2006 8:08 am 
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KirimaNagi wrote:
Lord William Rees-Mogg wrote:
Parallel to the attorney general's claim in his white paper on surveillance practices is the president's response to the big civil liberty cases, which allege wrongful arrest, particularly in Guantanamo and the "extraordinary renditions," torture, and the holding of individuals, including U.S. citizens, without charge, access to lawyers, or trial.


*growl* He doesn't have the power legally, but he's got it because he's packed the administration so full of power-hungry morons that even now they don't agree with him they don't realize they have the power to stop him.

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PostPosted: Mon Feb 06, 2006 5:23 am 
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Update:

The Washington Post Sunday edition had an article about the illegal wiretapping in which they stated that over half the wiretaps had nothing to do with terrorism. Inside sources were also quoted as saying that fewer than 10 "domestic leads" per year were being generated from the wiretaps, and hinting that all of the information, even that not pertinent to investigations, is being stored.

/update

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"Political power is the game of playing God. It changes a person and makes him different from the rest of us. He begins to believe he has some kind of right to interfere in the lives of others. He may even believe he has the right to choose who lives and who dies."
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PostPosted: Mon Feb 06, 2006 9:52 pm 
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KirimaNagi wrote:
Update:

The Washington Post Sunday edition had an article about the illegal wiretapping in which they stated that over half the wiretaps had nothing to do with terrorism. Inside sources were also quoted as saying that fewer than 10 "domestic leads" per year were being generated from the wiretaps, and hinting that all of the information, even that not pertinent to investigations, is being stored.

/update
well I'd say that about does it for the "did it to protect uh-mur-ruh-kuh." argument. Sonds like watergate to me.

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PostPosted: Tue Feb 07, 2006 10:18 am 
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Radio wrote:
This is in Debate Club so it's SERIOUS POST time.

Marjin wrote:
A nation of our size and stature that doesn't profile, tap, torture, interrogate, kidnap, kill, or God knows what won't last.

BWAHAHAHAHAHAAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA


I never had to miss MiB. This is why.

Kimira, He's not going to get impeached. That's a fact. Between apathy and sloth, lack of political knowledge and media fumbles, there are not enough of the opposition who *really* gives a damn anymore. Anything that Bush does is either met with the media, or liberals, or amature pundits who blow the action out of proportion.

Even when the facts are correct, most anti-Bush anything is heavily, and gall me to say it as it might, unfairly biased to make him look like the fucking devil. Which give the other extreme enough steam to back up their Chief.

Bush is not going to be removed from power. Aside from that implying the Conservatives are wrong (when you stand for tradition, that's not a message you want to convey), America is at war. Fuck the reasons, America is at war, and removing the leader from power in the middle of war shows weakness.

NO COUNTRY CAN AFFORD TO SHOW WEAKNESS AT TIME OF WAR. Weakness costs lives as the other side steps up their attack to take advantage of it*.

The UN is not going to try him as a war criminal, either. Again, - the US, by reaction or design, is in war. If the UN steps in and intervienes directly, that could be constituted as an act of war. Imagine the outcome of the nations of the world reacting. At *best*, it would cripple America in the eyes of the rest of the word. Even with the America hate, at least the general idea is 'Bush is the problem, things will get better**'.

After Bush is out of office, he might be dragged around for everything he's done. But so long as it's a time of war, and so long as he's still the Commander and Chief, he's going nowhere, and he shouldn't go anywhere.

Wiretapping is the least of his crimes, and if you're saying that's why he should be booted, you're comming of as very reactionary. Until he's out of office, or until this war is over, NOTHING can happen to Bush.

We're *all* safest that way.

-Kitty

*It doesn't matter if this was planned out or not.

**That, or 'you fat Americans'.

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