Comments on: What If They Held A Hearing… http://informedspeculation.com/2006/02/04/what-if-they-held-a-hearing/ Refunds Cheerfully Given To All Who Disagree Tue, 13 Jul 2010 08:37:30 +0000 hourly 1 http://wordpress.org/?v=3.0 By: Jamie http://informedspeculation.com/2006/02/04/what-if-they-held-a-hearing/comment-page-1/#comment-12478 Jamie Wed, 08 Feb 2006 21:31:55 +0000 http://decision08.net/2006/02/04/what-if-they-held-a-hearing/#comment-12478 I think, toomanysteves, that AG is basing the Administration's legal position much more on the separation of powers argument than is being pushed in the media, for exactly the reason you give: to say, "We didn't use FISA because it would've been too <i>haaaard</i>" is a flat-out loser. (Conversely, I think the media is pushing the weaker argument <i>because</i> it's weak.) It's important that we know that FISA isn't cut out for this kind of work, and IF - <i>huge</i> IF - the program is eventually found to be in violation of the law and/or Constitution, I'd expect that the Administration will then say, "All right, but what do you propose we do now?" (something, incidentally, that those who say they oppose the <i>method</i> though not the <i>program</i> should've been addressing all along, if they wanted to have any credibility in the area of national security, IMHO) and either FISA will be amended or there'll be a new law enacted to cover this sort of thing. I myself am firmly behind the separation-of-powers argument. In fact, I'm so firmly behind it that I think AG's follow-up of "and if <i>that's</i> not enough, we have the AUMF giving the President full authority to prosecute this conflict, which naturally includes interception of enemy communications" actually weakens the strongest case. But in any event, I'm satisfied with the three-pronged argument he makes - 1. Separation of powers, 2. AUMF, 3. warrantless surveillance of the international side of the call is A-OK no matter who you listen to, and we've gotten FISA warrants for every applicable case we've followed up on. I think, toomanysteves, that AG is basing the Administration’s legal position much more on the separation of powers argument than is being pushed in the media, for exactly the reason you give: to say, “We didn’t use FISA because it would’ve been too haaaard” is a flat-out loser. (Conversely, I think the media is pushing the weaker argument because it’s weak.) It’s important that we know that FISA isn’t cut out for this kind of work, and IF – huge IF – the program is eventually found to be in violation of the law and/or Constitution, I’d expect that the Administration will then say, “All right, but what do you propose we do now?” (something, incidentally, that those who say they oppose the method though not the program should’ve been addressing all along, if they wanted to have any credibility in the area of national security, IMHO) and either FISA will be amended or there’ll be a new law enacted to cover this sort of thing.

I myself am firmly behind the separation-of-powers argument. In fact, I’m so firmly behind it that I think AG’s follow-up of “and if that’s not enough, we have the AUMF giving the President full authority to prosecute this conflict, which naturally includes interception of enemy communications” actually weakens the strongest case. But in any event, I’m satisfied with the three-pronged argument he makes – 1. Separation of powers, 2. AUMF, 3. warrantless surveillance of the international side of the call is A-OK no matter who you listen to, and we’ve gotten FISA warrants for every applicable case we’ve followed up on.

]]> By: too many steves http://informedspeculation.com/2006/02/04/what-if-they-held-a-hearing/comment-page-1/#comment-12223 too many steves Sun, 05 Feb 2006 13:37:49 +0000 http://decision08.net/2006/02/04/what-if-they-held-a-hearing/#comment-12223 The argument given, that the 72 hour provision is burdensome because the AG decided they must document that they can meet the FISA requirements anyway, seems reasonable to me. But, as an answer to the charge that the program violates FISA, this defense is of the "yeah, but" variety and an admission that the law is being violated. I'm surprised that the defense of the program isn't argued more directly and strongly as a case of Executive Power/Separation of Powers situation. That argument goes: this engagement with the terrorists is a war, not a law enforcement action, and so FISA does not apply. Furthermore, allowing FISA to control the NSA program would set a bad precedent against the Presidential power to conduct war and war time surveilance. I'm not making that argument, just surprised that the AG isn't because the "it takes too long" argument, to me at least, is a total loser. The argument given, that the 72 hour provision is burdensome because the AG decided they must document that they can meet the FISA requirements anyway, seems reasonable to me. But, as an answer to the charge that the program violates FISA, this defense is of the “yeah, but” variety and an admission that the law is being violated.

I’m surprised that the defense of the program isn’t argued more directly and strongly as a case of Executive Power/Separation of Powers situation. That argument goes: this engagement with the terrorists is a war, not a law enforcement action, and so FISA does not apply. Furthermore, allowing FISA to control the NSA program would set a bad precedent against the Presidential power to conduct war and war time surveilance.

I’m not making that argument, just surprised that the AG isn’t because the “it takes too long” argument, to me at least, is a total loser.

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