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CAMP DAVID, Md. -
President Bush said those who agree with a federal judge that his warrantless surveillance program is unconstitutional "simply do not understand the nature of the world in which we live."

"This country of ours is at war," the president said Friday. "And we must give those whose responsibility it is to protect the United States the tools necessary to protect this country in a time of war."


I've been hearing a whole lot of defense of the president's program in the sake of war because it was apparently instrumental in ferreting out the british terror plot with the ten airliners. The latest bash was calling U.S. District Judge Anna Diggs Taylor an activist judge, "legislating from the bench".

I've heard those terms before, from the pandering conservatives.

Note: before you jump all over me here, I don't think all conservatives (or liberals) are pandering. I believe that the vast majority of people are actually capable of decent thought, but our political media tend to show the polarized opposites that are represented by Rush, Hannity, Al Franken and the like.

Taking this decision as "legislating" by an "activist judge" really weakens the concept to the point of absurdity. It was a legal decision in a district court hearing. The judge did what she was supposed to do which is render a decision. And because it went against the president, she's labeled as an activist judge.

Here's the gist of the decision: even the president does not have the authority to circumvent due process in ordering surveillance, that it violates the fourth amendment protections.

Bear in mind that we are talking about domestic warrantless surveillance here.

EDIT: I was mistaken: the memorandum of decision explicitly states that this is the international telephone and internet communications. I shall let the rest of the text stand in place as a monument that even I can be wrong. :)

However, this begs the question of the involvement of the NSA instead of the CIA. That is a jurisdictional issue which I find interesting, though far less interesting than that shiny thing over there.


Bush (and the Bush lawyers including AG Gonzalez) feel strongly that they do have the power to circumvent due process because they need to to capture potential terrorists and others who may pose a threat to national security.

"The end justifies the means" - Sophocles, 409 B.C.

"The result justifies the deed" - Ovid, 10 B.C.

"A war is just if you know you can win it." - George H. W. Bush, 1986


I have far less discomfort with a non-domestic surveillance program than I do a domestic one. When the government claims the right to spy and search/sieze its own citizens without due process of a warrant (which is a primary tool of checks and balances), we are in serious trouble.


Comments

( 11 comments — Leave a comment )
qob
Aug. 18th, 2006 06:45 pm (UTC)
Not domestic
this is a program that monitors the telecommunications to or from suspects overseas to or from parties in the US. To characterize this as checking out your talks to your aunt Bessie in Hackensack are patently false
loba
Aug. 18th, 2006 06:58 pm (UTC)
Re: Not domestic
Unless your call is routed through another country, yes.

But if Aunt Bessie lives outside the US (and not in Hackensack, NJ), you're screwed.
magicmarmot
Aug. 18th, 2006 07:28 pm (UTC)
Re: Not domestic
My understanding is that what was being challenged is the domestic surveillance program, not the overseas telecommunications.

The domestic surveillance program has been used to obtain warrantless wiretaps on (for instance) reporters in an attempt to identify sources of leaks of classified data within the government.

Washington DC to New York is entirely domestic.
qob
Aug. 18th, 2006 09:26 pm (UTC)
Re: Not domestic
The NSA program that is under scrutiny is one that covers communication between US residents and people over seas, it has been WRONGLY characterized as Domestic spying. it is not. Joel Rosenberg has a good post on it.
http://joel-rosenberg.livejournal.com/85578.html#cutid1
magicmarmot
Aug. 18th, 2006 09:51 pm (UTC)
Re: Not domestic
I stand corrected: the text of the memorandum explicity states

"...the international telephone and internet conversations..."

I apologize.

This does beg the question of why the NSA is then involved instead of the CIA.
qob
Aug. 18th, 2006 11:56 pm (UTC)
semi-domestic
there was a in country element to this, is the CIA authorized to run operations in the US?
magicmarmot
Aug. 19th, 2006 12:09 am (UTC)
Re: semi-domestic
No. The CIA is authorized only for non-domestic intelligence, the NSA handles domestic intelligence ops. I think that may be where some of this comes in. Because the surveillance was originated on US soil and involved some US citizens, it's not a clear delineation.

Another point that was brought up to me offline is that as long as the intelligence that is gathered is not used in prosecution of US citizens, it is within the president's war-time sphere of influence to initiate covert surveillance, even domestic (and has been for a very long time).

There is an issue though, and that is the definition of war. The "War on Terror" is not a war in the traditional sense, with clear boundaries and an enemy in a particular country that wears a uniform. It's a war of ideals, and that is dangerous.

Well war is dangerous in any sense.

I'll shut up now.
mle292
Aug. 19th, 2006 01:12 am (UTC)
Re: semi-domestic
it is within the president's war-time sphere of influence to initiate covert surveillance

WTF?
I know the complications with the war in Iraq as far as this question is concerned, but did Congress every actually declare "War" on Terror?
Did I miss CNN that day?
magicmarmot
Aug. 19th, 2006 02:33 am (UTC)
Re: semi-domestic
No. Iraq. And operations in afghanistan.
mle292
Aug. 18th, 2006 07:25 pm (UTC)
You don't need to make excuses for it. There is lots and lots and LOTS of legal precedence for the judge's decision.

It's pretty clear that the surveillance violates a citizen's constitutional right against unlawful search and seizure, as has been determined by many perfectly competent judges in the past.

For the sake of the discussion, I'll pretend briefly that Mr. Bush is correct when he claims that warantless surveilance of citizens is *necessary* for national security. Sure, fine, whatever.

Okay. Assuming that it's *necessary*, it is now the responsibility of the president to work with the other branches of government to change or amend the Constitution. It is NOT his job to break laws when he feels that they are not necessary anymore, he is not empowered to act completely independently of the other branches of government.

If you decided that because an intersection was clear it's safe to run a red light, and you were caught - would you have a case before a judge if you explained that the red light was unnecessary at the time?

How about if you were driving drunk but weren't stopped until you were pulling into your driveway. No harm was done. 'Spose you won't get the DUI because the law was unnecessary right then?

Violating the rule of law and throwing childish insults towards those who disagree is not a real solution.
mle292
Aug. 20th, 2006 03:00 am (UTC)
Re: semi-domestic
( 11 comments — Leave a comment )

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