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Wiretapping update

Since the Supreme Court's Hamdan ruling, there's been a fair bit of discussion on legal blogs about the ramifications for not only the programs at direct issue (military tribunals for detainees) but also for such programs as the National Security Agency's warrantless domestic wiretapping program. I have no idea whether the blogs I reviewed were a representative sample. I suspect not.

In general, the bloggers felt that the majority opinion in Hamdan effectively kicked the legs out from under the two main defenses the administration has offered for its program:

  • That the Authorization for the Use of Military Force enacted shortly after the Sept. 11, 2001, terrorist attacks implicitly allowed the president to do what otherwise would have been a violation of the Foreign Intelligence Surveillance Act.
  • That the war-making powers assigned to the president in Article II of the Constitution trumped FISA.

Some examples:

Even Andrew McCarthy, a very pro-administration legal writer at National Review Online, now concedes that any legal challenge to the program almost certainly will succeed:

I have spent a great deal of time and energy studying and trying to explain what I understand to be the legal basis for the NSA program. (For those interested, see this lengthy white paper for the Federalist Society that I compiled with brothers Rivkin and Casey). Throughout the Hamdan majority opinion, and especially in the Kennedy concurrence (particularly where he discusses Justice Jackson’s Steel Seizure concurrence), one immersed in these issues perceives resonances of the letter submitted to Congress by fourteen scholars of constitutional law and former government officials. That letter, available here, posits that the NSA program is illegal. Even though the letter is not cited in Hamdan, its influence is palpable. It was that letter, and a similar ABA report, that prompted David, Lee and I to do our study.

My own rule of thumb is to try to fight hard but fight fair, and admit when I've lost. I’ve lost.

So, when a case involving the program ever gets to the Supreme Court, the high court, at least as currently constituted, probably will strike it down. One such case is before a federal district judge in Detroit, who heard government arguments Monday that the entire case should be thrown out because to hear it in open court would be a national security risk. Such an exemption exists in the law, but it is typically applied much more narrowly -- to individual documents or witnesses, say -- rather than to entire cases. The judge hasn't said when she will rule, and I'd bet a dollar whichever side loses will appeal anyway.

Comments (27)

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Samuel Spagnola said:

McCarthy doesn't concede that the reasoning is correct. Stay tuned.

Lex said:

You're right ... and I didn't say he did.

jaycee said:

“the bloggers felt”
“almost certainly will”
“probably will”
“should be”

Where's the beef?? Nothing in your piece but opinions.
But I'll defend your right to express them with my life.

jaycee said:

As a point of clarity, the NSA does not conduct "wiretaps." Go learn the terms if you want to have an intelligent conversation on this issue.

Lex said:

Nothing in your piece but opinions.

Lawyers' opinions, jaycee, not mine, point being that they have an expertise you and I do not.

I write for a nonspecialized audience, jaycee, so "warrantless domestic surveillance" or "wiretaps" it will remain. As I said earlier, if the need arises to go into chapter and verse I will, but it hasn't yet.

Tony Ledford said:

How about "criminal invasion of privacy," Lex. It's okay to be truthful.

:-)

Best regards,

jaycee said:

Lex, your opinion has the same value as mine...damn little. Same for lawyers; they give "opinions," they do not adjudicate guilt or innocence. So I'll still ask you to provide facts instead of opinions to back up your position. So far you have not done so.
Calling anything having to do with electronic interception "wiretapping" is like calling every motor vehicle a "truck" or everyone who writes on the internet an "author." Your intentional misstatement of this fact and others merely adds to the false propaganda swirling about over intelligence acquisition programs. You're not helping to clarify it for the public when you don't even know what you're talking about.

Tony, please provide a source for the NSA program being declared "criminal" by a legal authority. Otherwise, how about stating fact and not opinion? Or are you just trying to mimic Lex?

Tony Ledford said:

As requested:

http://www.nybooks.com/articles/18431?email

Of course, for every rational, considered legal opinion, you will find a corresponding deranged, perverted one that defends treason and the betrayal of the Constitution of the United States.

You believe the one you choose, and I will believe the one I choose. This is America, and we still have the freedom to do this, no matter how much Bush "hates our freedom" and is striving to destroy it.

Best regards,

jaycee said:

And the court that found the US government guilty of a criminal act in the NSA terrorist surveillance issue is....??? Perhaps I missed that in all of the "opinion" in the link you sent.
Nice try, no cigar.

Tony Ledford said:

It hasn't been to trial yet.

There is a wealth of information available to those who, having no fear that any facts they might uncover will damage their fragile and delusional belief systems, will look for it.

Try http://www.google.com.

:-)

Have a good weekend, Lex!

Best regards,

jaycee said:

Yes, Tony, there's a wealth of liberal "opinions" out there from those that hate the conservatives and will lie, prevaricate, invent, and misstate any fact to try and impose their money-grubbing, tax-and-spend, cut-and-run will on the rest of us.
You claim a "criminal invasion of privacy."
Prove it. Show me where an act has been adjudicated in a court of law and declared "criminal."
Otherwise, you're just another liberal windbag lying to those foolish enough to listen to you.

Lex said:

Shorter jaycee: Nobody's been shot dead until a court says somebody's been shot dead.

Even shorter jaycee: Who you gonna believe, me or your lyin' eyes?

jaycee said:

Lex, I'll again ask a question you seem intent on avoiding:

You mentioned that once you were a crime reporter. Did you call people "murderers" in your news articles before they'd been convicted? Did you publish that someone was "guilty" before an arrest, trial, or verdict? I kinda doubt it, since you're still employed at the N&R. Can you explain why you think it's acceptable journalistic ethics to do that to the government?

Lex said:

Yeah, and I answered that question before, too, jaycee. Go back and look it up.

jaycee said:

Please point me to your answer, Lex, I didn't see it.

Lex said:

What part of "go look it up" don't you understand? Short version: If I witness a shooting, I don't need a judge to tell me what happened.

jaycee said:

You never answered the questions, Lex.
Please do, in light of your unfounded accusations about our goverment:

1)You mentioned that once you were a crime reporter. Did you call people "murderers" in your news articles before they'd been convicted?
2)Did you publish that someone was "guilty" before an arrest, trial, or verdict?
3)Can you explain why you think it's acceptable journalistic ethics to do that to the government?

Lex said:

jaycee: 1) No. 2) No. 3) Two reasons: First, "the government" is a broad term describing something that isn't a legally recognized person (human or corporate) that can be arrested, tried and convicted. (That's why high-ranking government officials often end up as named defendants in lawsuits: I can't sue "the government," but I can sue Attorney General Jane Doe in her official capacity.) Second, independent observation is an important part of reporting. I can read the law and, in many instances, determine independently whether an action violates the law on its face. In such cases, the only remaining question is whether a legal defense for that violation exists. If I've read the law and am watching you and the traffic light, I don't need a judge to tell me whether you have jaywalked.

'Course, I've explained this to you before and gotten nowhere, so I'm not sure why I'm bothering to explain it again.

jaycee said:

"I can read the law and, in many instances, determine independently whether an action violates the law on its face. In such cases, the only remaining question is whether a legal defense for that violation exists. If I've read the law and am watching you and the traffic light, I don't need a judge to tell me whether you have jaywalked."

Wrong again, Lex.
You can see an act, but only a court of law can decide whether that act was done illegally. Your opinion, no matter how fiercely defended, is only that. You are not the arbiter of whether an act is committed illegally. Some time ago you mentioned that you could see someone's death and determine that it was "murder." Right offhand, I can think of about 6 circumstances in which one person killing another is NOT murder. Death is self-evident; murder is the determination of a court.
So you think that you're safe by falsely accusing the President of illegal acts? By falsely accusing SecDef Rumsfeld of illegal acts? By falsely accusing the Attorney General of illegal acts?
You wouldn't do that if it were someone locally who could sue you for unethical and possibly illegal acts in your erroneous reporting. You mentioned "suing" an AG or someone for official acts. In that case, you are only "alleging" an illegal act; a court of law determines is it was illegal or not, not you.

Lex said:

As I said, it's pointless discussing this with you, jaycee, because you willfully refuse to get the point and revel in Foucaultian assaults on the very existence of fact.

In this case, you're also misrepresenting what I posted awhile back about the example of murder, although I'm perfectly willing to ascribe that to poor memory.

jaycee said:

What's pointless is that you still believe you have the right to determine what's legal and illegal based on your opinions. That's simply wrong. Your opinion and mine have exactly the same value and worth, as does anyone else's opinions. We are not legal authorities, we're observers with layman's opinions.
You have neither the authority nor the societal position to do this. That's the purview of the courts.
Anyone can look at an act and determine whether it was committed or not, but only the courts have the authority and power to determine whether it was done illegally or not.
When you state your personal opinion as fact you are misleading the readers and sullying your reputation as a journalist.

Lex said:

Yeah, OK, jaycee. Whatever.

jaycee said:

Lex, even police officers can't find people "guilty" when they see them commit an act that may be illegal. The court does that.
Why do you think you have more power and authority than anyone else in our society? Is it because you're a "journalist" and think you know everything?
If a police officer sees an offense, he may arrest for "probable cause." Then he takes the person before a Magistrate, who again determines "probable cause." Then the case goes to the DA who decides if they're enough evidence to think the person might be found guilty in court. Then it goes to court where the person is found "guilty" or "not guilty."
Where does a N&R journalist fit into this process??
Every time you state your opinion as fact you are harming your personal reputation and that of the N&R that employs you.

Lex said:

Yeah, OK, jaycee. Whatever.

jaycee said:

Nice response, Lex.
Nice response, Lex.

I see you've opted out of trying to justify your position. Good choice.

Lex said:

just for you, jaycee. but, you know, whatever.

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