Wednesday, January 25, 2006

We don't need no stinkin' Fourth Amendment

The following gem comes from John Gibson on Fox News yesterday:


Democrats need a plan to combat the new attack coming their way from Karl Rove, the man leading the president's offensive this week, on the once upon a time secret wiretapping program. I've been saying the same thing for weeks and weeks, often to counter some argument about the Constitution my friend, the judge, makes.

Americans get it. We were reminded last week that Usama still wants to kill us in the country we live in, and we understand that he claims to have people already in our country plotting our demise. So when you say, as Bush is saying, if Al Qaeda is calling someone in America, we want to know what they're saying on that call, Americans say, "Yes, we sure do want to know."

If Democrats are going to argue against that position by saying, "You're not obeying the 1978 FISA law, which requires a warrant every time you listen to an Al Qaeda call," they've lost the argument before it even begins.

Now, that doesn't mean the Dems won't try to make that argument and, by pure repetition, hope it wins, but it won't. The polls show it won't.

People may not like the Iraq war, but they get it that the Al Qaeda phone call thing and the current president was named -- and if the current president was named Gore, or Clinton, or Kerry, the American people would make any one of them do the same thing.

The rule goes like this: Nobody should die because politicians want a judge to dot every i and cross every t.

Now, Judge Napolitano is off sick today. And somewhere, he is screaming or clucking his tongue or just shaking his head. It may not fit the parameters of the parchment, but it doesn't mean we don't care about the Constitution or the protections it provides us.

But we also -- we all know that we're not calling Al Qaeda and Al Qaeda isn't calling us. So if Al Qaeda is calling my neighbor, tap him! Find out what's going on between my neighbor and some terrorist overseas.

If the Dems can't beat that argument with something short and to the point --
"It's the Constitution, stupid," "Where is the Fourth Amendment?" something a whole lot better than either of those -- then the Dems just plain lose this argument.

So: appealing to the Constitution and the Fourth Amendment is a silly argument no one cares about. But that doesn't mean we don't care about the Constitution.

Got that?

By the way, once again, the controversy is about phone calls made from the United States to foreign countries -- not from foreign countries to the United States, and most certainly not Al Qaeda communications outside the U.S.

Once again, there is zero evidence that proper legal procedure would have made it any more difficult to collect legitimate intelligence-gathering in these cases. In fact, at least according to this New York Times article (click here if you cannot access the previous link), FBI officials say that the NSA surveillance program generally "led to dead ends or innocent Americans" and "diverted agents from counterterrorism work they viewed as more productive."

And no, it isn't just about your hypothetical Al Qaeda-loving neighbor. It's also about people like Christopher Hitchens, a staunch supporter of the War of Terror and the war in Iraq, and Larry Diamond, a democracy specialist at the Hoover Institution and a former adviser to the U.S.-led Coalition Provisional Authority in Iraq.

And if John Gibson can beat all that with, "But it's to save us from the terrorists!", then we're in trouble.

Update: For anyone asking, "Where's the harm in this program if no one is being hauled into court because of possibly illegal surveillance?", read Larry Diamond's statement.

46 comments:

William R. Barker said...

With sincere respect, Cathy, you might want to address the 4th Amendment issues raised in your previous thread, "The Warrantless Eavesdropping Defense."

If you would rather blog about John Gibson, fine. Your blog, your choice. However... we're already having a pretty lively discussion about the 4th Amendment on your other thread and I personally would like to hear what you have to say after reviewing that thread.

BILL

Hari said...

The Left's argument is one of form over substance. The "remedy" for an illegal search is that the ilegally obtained evidence cannot be used against the defendant. So, given a choice between quickly obtaining evidence in violation of the Fourth Amendment, using that evidence to prevent an attack, but subsequently being unable to use the evidence to prosecute the conspirators; or moving slowly, filing out an inch thick application for a warrant, getting the warrant, missing the chance to prevent an attack, but ultimately having untainted evidence; I'd choose the former. So would a majority of the public.

AprilPNW said...

This whole issue makes my head hurt, which is why I have not bothered to post any comments. However, hari's comment is somewhat similar to my feelings: in the end, I think most people fall on the side they deem most "practical".

To preserve my own sanity, I boil the issue down the following way:

If your job is public safety, national defense, or have a related mission, which option would you pick:

A) Having to explain to surviving family members why their mother, father, spouse, daughter, son (fill in blank) died on their watch due to a terrorist attack, or

B) Push the boundaries of what is permissible and argue the finer points of civil liberties and the constitution in the court of public opinion, and in formal hearings/trials?

Who in their right mind would risk scenario A?

One final word: if all these folks yammering about privacy would cease conducting their personal business in public on their cell phones...I'd be very appreciative, in addition to a lot more understanding about the privacy issue.

Hari said...

Cathy,

I am unclear of the significance of your point:

"By the way, once again, the controversy is about phone calls made from the United States to foreign countries -- not from foreign countries to the United States, and most certainly not Al Qaeda communications outside the U.S."

What is the significance of who initiated the call? If our response turns on this detail, it would be fairly easy for people to get around it (the person outside simply calls the person inside the US and says "call me back so we can't be monitored without a warrant").

Joan said...

Cathy, I think Gibson's point was not that the Democrats' appealing to the Constitution and the Fourth Amendment were silly, but that they are not effective, because for every "Fourth Amendment" we have "Presidential War Powers", also enumerated in the Constitution -- right? Gibson's point was not that it's a silly argument, but that it's a losing argument.

You closed with: And if John Gibson can beat all that with, "But it's to save us from the terrorists!", then we're in trouble.

But why are we in trouble? Where is the harm? Has a single US citizen been brought up on charges on the basis of illegally-obtained wire-tapped evidence? Are you arguing "slippery slope" here, or what?

Maybe I'm just dense but until an American citizen can show harm, I don't see how the Democrats or anyone else is going to get any traction on this issue.

Cathy Young said...

William: I've been meaning to comment on the other thread but haven't had the time. Will do so soon.

hari: perhaps you don't know that under FISA, a warrant may be retroactively obtained up to 72 hours after commencing the surveillance?

And if the power of warrantless surveillance is really so necessary under the present circumstances, why couldn't Bush have asked Congress to specifically grant him that power?

The issue of incoming vs. outgoing calls is essential because the 1978 law intended to prevent intelligence services from engaging in domestic surveillance specifically says that the NSA can conduct warrantless surveillance of calls from abroad to the US, but not from the US to foreign countries. The purpose of this is to protect American citizens from warrantless surveillance.

Joan: sorry, but the tenor of Gibson's comments tells me that he is not referring to the War Powers act but to the emotional appeal of "we need this to fight terrorists."

(Again, as I said in my post: no evidence that this has been a useful instrument in fighting terrorists.)

As for "where's the harm": Would you really have no objections to the government listening in on your conversations as long as the results weren't used against you in court?

Where's the harm? Read this statement by Larry Diamond.



April:

A) Having to explain to surviving family members why their mother, father, spouse, daughter, son (fill in blank) died on their watch due to a terrorist attack

Sorry, but an emotional appeal to saving lives that can be used to justify any policy, no matter how destructive to civil liberties -- why limit it to just terrorists and not domestic criminals?

John Howard said...

What situations do you envision where the court would not agree to issue a warrant? How much information would they have to provide the court with to convince them to agree to a warrant? Since there are probably lots of quick decisions about what call to listen to every day, it would seem to be a major area of red-tape and costly beaurocracy, and significantly disrupt the ability to listen to the call right now that they want to listen to.

But as long as they aren't eavesdropping for kicks, or for any reason besides monitoring for terrorist plans, and they can't pass on information to anyone else about anything else, I feel they should have a big blanket warrant for all calls, and use their judgement about which calls to spend their resources on. The question is how do we make sure that they don't use what they hear for other things if we're not a terrorist. I guess Cathy thinks that would be impossible, so we should just limit the number of people they listen to, but that wouldn't guarantee that innocent people wouldn't be eavesdropped on, or solve the problem of abuse of information when they listen to people that aren't terrorists.

John Howard said...

Larry Diamond's article is an argument against all wiretaps, both warrantless and warranted. His students and dissedents and innocent people would not know if a warrant was issued for their phone or not. So, he is arguing that judges should refuse to issue a warrant if someone is a student, or a dissident, or innocent, and that would just be way too taxing on judges time and the nsa's ability.

Cathy Young said...

The whole point of obtaining warrants is that a FISA court should be easily able to figure out that outgoing calls from a scholar have a legitimate purpose and should not trigger surveillance.

So, he is arguing that judges should refuse to issue a warrant if someone is a student, or a dissident, or innocent, and that would just be way too taxing on judges time and the nsa's ability.


Right. We obviously can't be bothered to figure out whether or not there is a plausible reason to suspect someone of terrorist ties. Let's just wiretap everybody, what the heck. Who needs privacy rights.

John Howard said...

The whole point of obtaining warrants is that a FISA court should be easily able to figure out that outgoing calls from a scholar have a legitimate purpose and should not trigger surveillance.

Why would the FISA court be better able to determine that than the terrorism investigators? Does FISA have a secret list of the actual terrorists or something? The terrorism experts would go to the FISA court and say "this person makes calls to known terrorists, listening to his calls might reveal information" and the court is going to say "Nope, he's a professor, or he might be talking to dissidents..."

I thought one of your arguments was that the FISA court will surely issue the warrant, all you want is them to follow the law. So they'll be listening to the professor anyway. You even say they could listen and get the warrant afterwards. So how are you changing anything about this guy's privacy? All you are doing is wasting resources and possibly missing thr most important calls.

And did you see hari's point? If all they have to do is say "call me back, they can't listen to outgoing calls" then that's pretty silly, no?

AprilPNW said...

Cathy said: "Sorry, but an emotional appeal to saving lives that can be used to justify any policy, no matter how destructive to civil liberties -- why limit it to just terrorists and not domestic criminals?"

I'm not sure I would limit it to terrorists if the situation warrented it. In fact, I've been told by our local FBI Special Agent in Charge (Seattle) that their biggest headache in this area comes from Aryan Nation and Neo-Nazi skinhead types. So I tend to ALWAYS think about how laws like this are applied domestically (plus, we're also a hotbed of eco-terrorism).

I would just be curious to see the response from the public/media if the laws were bent to prevent a black church or abortion clinic from being bombed. Would the outcry be the same? Who knows?

OK, back to searching for asprin (that damn headache is back again) and fading back to the sidelines!

Joan said...

Cathy, I've got agree with John Howard re Larry Diamond's piece. Diamond's thesis: Some significant number of the people who are aided by the United States today in their fight for freedom fear they could be betrayed tomorrow -- is essentially that he's worried about a "chilling effect" damaging all sorts of relationships and information flow.

But the fact is, all of this information flow has been happening for years, under the possiblity of surveillance with a warrant. You'll never know when there's a surveillance warrant out on you; the whole point is to eavesdrop without being detected. John Howard's right; Diamond is advocating dropping all surveillance activities, not just the ones we have warrants for.

I don't believe academics should get a pass on surveillance automatically, in any case, especially given the situation with that FL professor. Heck, if I were in the NSA, I'd be keeping close tabs on Ward Churchill -- he's crazy enough you never know who will use him for nefarious ends.

Would I be comfortable letting the government eavesdrop on my conversations? I'm used to the idea that everything I say is pretty much permanently recorded somewhere -- comes from years of hanging out on USENET, where nothing is ever forgotten. Do I think every domestic phone call is recorded? No, because I have an idea of just how much data is involved. Would it bother me if my phone calls were electronically monitored, and a computer program spit out my name because I used some key words in a specific sequence? No. I have faith that any human investigating my situation would see that I don't fit the profile as a terrorist threat.

There's a tremendous amount of data out there, accessible to anyone with the right equipment. Our enemies most assuredly are listening to us, and I have no problem with the government screening calls to known terrorists, whether they come from within the US or elsewhere.

Do you have a problem with tapping calls made within the US by non-citizens? Think how easy it would be to get around some of these rules you seem to be suggesting -- the "quick, call me back" scenario is one, but another would be having a US-citizen sympathizer place the call, so as to be wire-tap free, but then handing the phone to the foreign-born terrorist/strategizer.

Also: we haven't heard of any terrorists killed or detained, or any plots derailed, as a result of information gathered from these wiretaps, but that doesn't mean it hasn't happened. This was a secret program until the NYTimes published the leak! You don't go touting the successes of secret programs if you wish them to remain secret. For someone who is usually quite sensible, you're missing some points which seem obvious to me on this.

thecobrasnose said...

Regarding the evidence of difficulty with FISA warrants, I'd be curious to hear what you think of this editorial in the Wall Street Journal:

http://www.opinionjournal.com/editorial/feature.html?id=110007848

And I can actually think of a terrific reason for the President not to have asked Congress for the wiretapping powers more openly--the partisan brouhaha we're witnessing right now that would more likely than not have tipped off terrorists to the governments' surveillance practices and imperiled innocent lives.

thecobrasnose said...

One other thing--the government has a powerful motive to not abuse this form of surveillance. If it were misused the people who are inclined to give the government a break for the common good would go bananas, if not into actual revolt. I haven’t heard anything in connection to this topic that makes me worry for my privacy or rights more than to sympathize with its aims.

Anonymous said...

"Would it bother me if my phone calls were electronically monitored, and a computer program spit out my name because I used some key words in a specific sequence? No. I have faith that any human investigating my situation would see that I don't fit the profile as a terrorist threat."

I don't have faith that the information being collected is ONLY going to be used for these purposes or will never be abused by various government agencies. The history in the US is that the more data the government collects, the more that data is used against ones political enemies, etc. Feel free to turn your life over to the government. I prefer to keep mine to myself.

Revenant said...

Would you really have no objections to the government listening in on your conversations as long as the results weren't used against you in court?

Personally, it would depend on where the call was made to. If they were monitoring my intra-US calls I would be alarmed. If they were monitoring my calls to overseas locations I wouldn't be especially bothered, especially if they did it during wartime (such as now). If they did it when I called Pakistan or Syria -- should I ever do such a thing -- I really wouldn't be bothered at all.

I don't think most Americans are particularly bothered by the idea of having their calls to other countries listened to because most Americans don't *make* any calls to other countries. It is hard to feel that your privacy rights are being violated when the violation is, in your case, strictly hypothetical.

Anonymous said...

revenant still doesn't get it:

"If they were monitoring my calls to overseas locations I wouldn't be especially bothered, especially if they did it during wartime (such as now). If they did it when I called Pakistan or Syria -- should I ever do such a thing -- I really wouldn't be bothered at all."

You are disagreeing with the Constitution here. The fourth amendment does not have a clause stating "unless we're at war," nor does it have a clause stating "unless you're talking to a foreigner."

Sheesh.

W.B. Reeves said...

I'm not sure I would limit it to terrorists if the situation warrented it. In fact, I've been told by our local FBI Special Agent in Charge (Seattle) that their biggest headache in this area comes from Aryan Nation and Neo-Nazi skinhead types.

I spent 7 plus years involved in researching and counter organizing against such groups. As a result, I was the recipient of numerous death threats. I did not then and do not now support any illegal actions by law enforcement against these groups. The Government and the police must follow the law. Otherwise we will be governed by despotism, rather than law.

William R. Barker said...

Cathy - Thanks. I look forward to your response to my comments (and others' comments) on the 4th Amendment posted on the "Warrantless Eavesdropping Defense" thread."

Everyone (*GRIN*) - Forgive me if I sound like a broken record, but I'm really urging everyone to check out the "Warrantless Eavesdropping Defense" thread so that I can avoid cluttering up this thread with re-posts. Bottom line... Congress has no more power to circumvent the Constitution than the other branches have.

Hari - Agreed. The "remedy" for an illegal search is that the illegally obtained evidence cannot be used against the defendant in a criminal case.

Aprilpnw - "Emotional" argument or not... I'm with you.

Hari (again) - Agreed. There's no significance in who originated the call.

Joan - The issue of "Presidential War Powers" is indeed at the heart of this debate but you (not just "you," all of us!) need to be VERY careful about defining legimate CONSTITUTIONAL "Presidential War Powers." More on this topic later. (*SMILE*)

Cathy (again) - There you go again with the 72-hour hold business. Where in God's name do you get the impression that Congress has powers to circumvent the Constitutional previsions of the 4th Amendment whereas you don't believe the President has such innumerated or implied powers under the Constitution? Whether one agrees with me or not (and frankly, I don't see how you can disagree) at least I'm advancing a consistant constitutional argument. I just don't see the same intellectual consistancy from those who bash the executive branch but not the legislative branch.

John Howard - Basically (at least so it seems to me) the fans of the 72-hour hold seem to be arguing that only the FISA court can issue the retroactive warrant. They also seem to argue that the FISA court always (or maybe just 99.9 % of the time) (*SMIRK*) goes along with the executive branch's warrant request. In other words... on the one hand they argue that the FISA court is necessary to protect individual American's liberty from the executive branch, yet on the other hand, they're seemingly o.k. with the FISA court being a rubber stamp for executive branch surveillance of American citizens. So... besides process... what's the point??? To echo Aprilpnw's sentiments... some of the arguments offered make my head hurt. (*SMILE*)

Thecobrasnose - It's always a good thing to post links to WSJ pieces! Good job! (*SMILE*)

Anyway... continue, folks. (*GRIN*)

BILL

William R. Barker said...

O.K., back to you, Joan. (*SMILE*)

Our fellow poster Rev insists we're at war. Bill O'Reilly insists we're at war. President Bush insists we're at war.

Allow me to stipulate...

I'd guess MOST Americans believe we're at war.

Rev's argument (and the argument of many) is that via congressional resolution Congress effectly declared war on... (well, I'm not really clear on the specifics but I'll hazard a guess) the Taliban in Afghanistan (deposed), Saddam's regime in Iraq (deposed), al-Qiada (I think) and "terrorists" in general (whomever and wherever they are).

I was listening to Sean Hannity on the radio last night and he was interviewing some Democratic congressman. (Sorry... I don't recall the name.) Anyway... the interview concerned the "I" word - impeachment. Hannity was trying to get the congressman to admit that congressional resolutions had empowered the President with all sorts of "war powers" including surveillance authority used in defense of national security. About five minutes of the several segment interview was spent on Hannity asking the congressman "are we at war?" and the congressman refusing to answer with a clear "yes." Indeed, the congressman went to great pains to make the point that Congress has never technically "declared" war.

Here's my question, but of course it's unanswerable without actually posing the question to each and every member of Congress - which the MSM will NEVER, NEVER, NEVER do:

Congressman (or Congresswoman):

Did you ever vote in favor of a declaration of war against... (insert countries and organizations here)?

Rev... Joan... anyone and everyone... how do you think such "polling" would turn out? I know... it would just be a guess... but I'm curious.

If (*fantasy scenerio*) we could line up each and every member of Congress and ask them to indicate ON THE RECORD whether or not they believe they've voted for an open-ended "declaration of war" against "terrorism," do you think we'd get a unanimous yes... a near unanimous yes... a yes along partisan lines with Republicans voting yea and Democrats voting nay?

Hmm... and for a moment let's set aside the "war against terror" and go to the war against Saddam's Iraq. Same question... if we could gather every member of Congress and ask each one ON THE RECORD to indicate whether they believe they voted for a Declaration of War against Saddam's Iraq... how do you think the responses would shake out?

Yeah... that specific question on Iraq is somewhat rhetorical. (*SMILE*) I'm guessing that even Rev would have to in all honesty guess that the vast majority of Democrats and even a fair number of Republicans would insist that they never actually voted for a Declaration of War against Iraq.

Hey... folks... this is Bill "the overall Republican supporting, Bush supporting" poster coming up with this stuff. I favored the Iraq War to depose Saddam. I favor destroying the terrorists. Obviously I favored the war against the Taliban in Afghanistan. I'm not some leftist... liberal... or even Democrat trying to come up with excuses to bash Bush.

What I do try to do is maintain a consistant and logical constitutional prism when examining government action. I'm a BIG fan of abiding by the text and intent of the Constitution as written and enacted by the Founders and as since amended.

Joan...? Rev...? Do you guys see where I'm coming from? Joan... when you write of "Presidential War Making Powers" I've got some real questions and concerns about the specifics. Rev... you insist we're at war, but if faced with the actual question on the record I'm betting that a fair number (jeez... perhaps even a majority) of members of the legislative branch charged with the SOLE authority to declare war would actually disagree with you and say they never voted to declare war. Worse... I'd bet that even most of those who would claim to have voted for war would be all over the map in terms of defining who we're at war with.

Anyway... I'm going off topic. I'm just throwing this "ramble" out for consideration. Basically, if I were to define my "purpose" in posting this, I'd say my point is that when government - regardless of which branch - trys to skirt the clear meaning and intent of constitutional rights and responsibilites chaos is never far behind.

BILL

P.S. - So, Cath... still think I'm some sort of blinders-wearing partisan defending Bush and the Republicans at every turn? (*SMILE*) Where does being a "constitutionalist" put one on your ideological scale? Just curious... (*SMILE*)

Anonymous said...

BILL, you just posted 1157 words in those last two postings (according to the MS Word counter).

I might suggest that you try to be a bit more concise.

thecobrasnose said...

I disagree with some of what you say, Bill, but it would be enormously clarifying if all members of Congress would go on record as to whether they think we are at war or not.

Anonymous said...

I think there are some who want to claim that we are engaged in a "Global War on Terror" because they want to exercise unchecked power over the rest of us here in the US.

Revenant said...

You are disagreeing with the Constitution here.

I am not. The Constitution does not require me to be bothered by people listening to my conversations.

The fourth amendment does not have a clause stating "unless we're at war," nor does it have a clause stating "unless you're talking to a foreigner."

It also doesn't have a clause requiring warrants for listening to other people's conversations. But that's beside the point, because Cathy wasn't asking "do you think the government can legally listen to you". She was asking if it bothered us. It doesn't bother me, in the cases I mentioned. So I'm afraid you're the one who "doesn't get it". Whether or not the 4th amendment is being violated is irrelevant to the topic under discussion.

Cathy Young said...

I think one of the things that people find disturbing about the present situation is that the "state of war" we're in now could very well be permanent, at least for the rest of our lifetimes.

If that's the case, I think we should at the very least have a national discussion about which civil liberties we're willing to see curbed, rather than allow the executive to single-handedly make those decisions.

Revenant said...

the "state of war" we're in now could very well be permanent, at least for the rest of our lifetimes

Congress has the power to declare an end to the current state of war. Unless elections are suspended, it is still ultimately up to the voters whether or not we stay in a state of war -- it is not up to the executive branch.

Joan said...

I am much too ignorant to answer the good questions raised here. Do I believe we're at war? Yes. Has Congress actually declared that we're at war? I don't know, and that's my honest answer. Is it true that only Congress can declare war? I suppose so, following the letter of the law (again, I don't know -- I told you: ignorant), but the reality is, we spent a good part of the 20th century involved in undeclared wars, The Cold War being quite real and quite truly a war, even if there wasn't ever a single pitched battle.

Given the obvious muddle that is my thought process, there's literally nothing I can say that will help here. I will add that I agree with Cathy: we should at the very least have a national discussion about which civil liberties we're willing to see curbed, rather than allow the executive to single-handedly make those decisions, to a certain extent. We can't be openly debating all the secret programs we have in place for monitoring terrorists. We should trust our elected officials to look after our interests, right? The members of the various intelligence committees have the appropriate clearances to know about covert operations, and they are the ones with whom the responsibility rests to ensure our civil liberties are protected.

That said, I still don't have a problem with the leaked NSA program, and I'm still failing to see any actual harm from the program.

reader_iam said...

Wow! Best discussion threads over here than I've read anywhere in ages.

Great stuff, Cathy and commenters.

Anonymous said...

revenant does not understand the constitution. I first thought he disagreed with it, but that was apparently assuming too much about him.

It is illegal for the government to spy on people, whether revenant is OK with it or not. It is only OK when 1) the subjects are not US citizens or legal aliens; or 2) the government has obtained a warrant. This is directly from the fourth amendment and FISA.

The arguments that the government's behavior is justified range from the risible to the chilling.

Revenant said...

revenant does not understand the constitution.

You're confusing "the Constitution" with "Supreme Court rulings". There is nothing in the text of the Constitution that prohibits spying upon American citizens, listening to their conversations, etc. The law covering those matters comes from court rulings extrapolated from the text of the Constitution and from earlier precedents.

It is also silly to claim that spying on US citizens is illegal. Police spy on US citizens all the time -- stakeouts, speed traps, informants, you name it -- without asking for a warrant to do so. Most of the court rulings regarding wiretapping have dealt with its use in law enforcement. Military usage in wartime has not really been dealt with -- and whether you're willing to accept it or not, it is a simple fact that the courts have always applied different standards to government behavior in wartime than they do to behavior in peacetime.

You are welcome to keep chanting "illegal wiretapping, illegal wiretapping" for as long as you like; I honestly don't care. There are ten people whose opinions on this subject matter -- one is George Bush, the other nine are Supreme Court justices, and none of them are you. I'm waiting to see what those ten people say on this unresolved legal matter.

William R. Barker said...

Thecobrasnose wrote...

I disagree with some of what you say, Bill...

==============================

Anything in particular? I don't have a problem with people disagreeing with me, but it is a bit frustrating not to know exactly WHAT they're disagreeing on. (*SMILE*) I'd sincerely appreciate hearing (reading!) (*GRIN*) your views on where I supposedly get it wrong, especially if you also explain why I'm wrong... in your opinion of course. (*WINK*)

================================

Thecombranose continued..

...but it would be enormously clarifying if all members of Congress would go on record as to whether they think we are at war or not.

=================================

Yep. Glad we're in agreement on that.

=================================

Cathy wrote...

I think one of the things that people find disturbing about the present situation is that the "state of war" we're in now could very well be permanent, at least for the rest of our lifetimes.

===============================

Hmm.... you put "state of war" in quotes. (*SMILE*) Exactly what is your view on the subject? Is the United States legally, constitutionally "at war?" Frankly, I have no idea what your ultimate position is on this question and I'd really like to know.

=================================

Rev writes...

Congress has the power to declare an end to the current state of war. Unless elections are suspended, it is still ultimately up to the voters whether or not we stay in a state of war -- it is not up to the executive branch.

=================================

Rev believes we're legally and constitutionally at war. Fine. We all understand where he's coming from.

Question: When did the United States declare war? The date... what was the date? (I just need to know so that I can email the info to Nancy Pelosi, John Kerry, and the host of other serving members of the House and Senate who I'm pretty sure will deny the legislative branch has actually "declared" war.) (*SMILE*)

Hey... no problem, Rev... I understand you're not gonna give an inch. You have your views, I have mine. As you say, ultimately the American people have the power via the ballot box to elect politicians willing to come down on one side or the other, to make themselves as clear as you and I do. (Yeah... at least that's the theory.) (*GRIN*)

=================================

Joan writes...

Do I believe we're at war? Yes. Has Congress actually declared that we're at war? I don't know, and that's my honest answer.

==================================

GOD BLESS YA, JOAN! May you live a thousand years and may the last posting you read be one of mind! (*SMILE*)

(See Rev...? See Cath...? That's the problem! A well-read, well-educated, obviously knowledgable and news aware person like Joan doesn't even know for sure whether her nation is legally at war!!! THAT'S A PROBLEM!!!)

Thanks... thanks for your honesty, Joan! Thanks for acknowledging the obvious reality that Congress (and the President) have created a total muddle where all the American people can do is "guess" whether we're at war or not. You say you "believe" the answer is yes... someone else says she "believes" the answer is no... is it really too much to ask that Congress clarify the matter?!?! (*GRIMACE*)

================================

Joan continued...

Is it true that only Congress can declare war? I suppose so, following the letter of the law...

=================================

You "suppose" so?!?! (*GRIMACE*) Again, Joan, thank you for your honesty. That said, once again, I submit to everyone that we have one heck of a problem here when someone as obviously bright, well-educated, and informed as Joan is seemingly unclear about basic constitutional doctrine.

"Following the letter of the law..." Joan, you write that as if following the constitution (also known as the supreme law of the land) (*GRIN*) is some sort of voluntary as opposed to mandatory rule of thumb. (*FROWN*)

You see...??? This is what its come to. Americans (including our elected officials) aren't in agreement on fundamentals such as whether we're at war or not. We're not in agreement on what the Constitution requires. Worst of all... apparently many Americans (again, including elected and appointed officials) aren't even sure we should "stick to the letter of the law" concerning matters of war and peace and national security. I'm telling you folks... it's a receipe for disaster.

================================

Joan continued...

...we spent a good part of the 20th century involved in undeclared wars...

================================

Yeah. We agree on that. Forgive the cliche, but two wrongs (or a million wrongs) don't make a right.

To go right for the biggie... is Vietnam really the example we want to emulate?

==================================

Anyway... I agree with reader_iam; we have really good discussions here on Cathy's blog! (*SMILE*)

BILL

Joan said...

LOL. At least my witless honesty is appreciated by some. Personally, I get annoyed with myself but also have to be honest that my interest and time only allow me to develop my knowledge so much.

That said, I was able to do more reading on this subject yesterday after my last post, and came upon a Robert F. Turner piece in OpinionJournal, in which he discusses the constitutionality of the non-declaration of war: For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful. (emphasis added)

If Turner's analysis is correct, that means:
1) we're legally at war because of the AUMF
2) any other means of declaring war besides an AUMF is actually illegal, so those who hold the position that Congress actually has to declare war are arguing that something illegal would have to happen to give the President is C-in-C abilities. Somehow, I don't think that's what the framers of the constitution had in mind.

So, how about it? Is Turner completely wrong? Are there cases following the two he cites that overturn the decisions? If he's right, we're at war, and that I think should settle a bunch of issues.

William R. Barker said...

Yeah... I read that op-ed too, Joan. (*SMILE*)

First of all, regarding Turner's defense of executive branch primacy in foreign affairs and national security... I agree with him!

(*SMILE*) Remember, Joan... I'm basically "one of us" (I'm sure Rev and I agree on far more than we disagree on!) rather than "one of them." (Meaning the anti-Bush crowd.)

Turner's op-ed basically buttresses key contentions I've made in the past concerning the President's CONSTITUTIONAL authority as it relates to a law such as FISA. Overall, it's a very convincing history-based op-ed.

However...

(*SMILE*) There's always a "but."

As to the question of "when is a war a war," Turner cites two cases:

The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war..

Joan... THANKS for reminding me that when I first read Turner's piece I meant to read those two actual decisions. I'm off to do that right now and then I'll get back to you.

BILL

Revenant said...

Question: When did the United States declare war? The date... what was the date?

September 14, 2001.

I just need to know so that I can email the info to Nancy Pelosi, John Kerry, and the host of other serving members of the House and Senate who I'm pretty sure will deny the legislative branch has actually "declared" war.

Nancy Pelosi and John Kerry are well aware that Congress declared war. They are also well aware that their antiwar base is ignorant of that fact. Thus, their pandering.

William R. Barker said...

O.K., Joan... I'm back. (*GRIMACE*)

This is... complicated. (*SMILE*)

First... may I suggest that you read Bas v. Tingy for yourself. (Then you'll see why I'm grimacing and writing "it's complicated.")

Basically, the case arises out of the quasi-war (note the term "quasi" - check out http://www.state.gov/r/pa/ho/time/nr/16318.htm) between France and the U.S. on the high seas which later became a DECLARED war between... Britain and the U.S. - The War of 1812.

The case dealt with salvage and "prize" awards. (Think Horatio Hornblower and Patrick O'Brien.)

In any case, the Court's ruling rested upon the CLEAR intent of Congress at the time which as we've previously discussed is definitely absent in the present conflict. The case also dealt with a clearly defined foe (France) and the Court was also dealing with SPECIFIC "instructions" from Congress specifically LIMITING armed action - specifically limiting it to vessels of France at sea.

Anyway... as I wrote above, read the case for yourself and I think you'll conclude that Turner's insertion of it in his op-ed was more of a throwaway line for effect to buttress his overall assertions as opposed to the kind of "proof" someone could cite to actually prove that we're "at war."

Now... as Talbot v. Seamen... I can't seem to find the actual case/decision. (Any help, anyone?) (It appears the actual case title may be Talbot v. Janson... it's similar to the Bas v. Tingy case... but that one's from 1795, not 1801.)

Anyway, Joan... food for thought and you must admit... a good faith effort on my part. (*SMILE*) I'm willing to be proved wrong... but so far I'm sticking with my past contentions. (*GRIN*)

William R. Barker said...

Rev... I think you're referring to Proclamation 7463 — Declaration of National Emergency by Reason of Certain Terrorist Attacks - Executive Order 13223. Am I correct?

Hmm... notice the word "proclamation?" (*SMILE*)

Notice the word "declare," as in "I the President declare."

Anyone can link to the actual document for him or herself. To anyone who actually does... note the following language:

------

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United Statesof America, by virtue of the authority vested in me as President by the Constitution...

------

First off, notice... "the authority vested in *me* by the Constitution..."

The authority to declare war is SPECIFICALLY given to CONGRESS by the Constitution. (That's what we're talking about... right, Rev... what you claim is a declaration of war?)

Now... back to the declaration:

------

...and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001, and, pursuant to the National Emergencies Act (50 U.S.C. 1601 et seq.), I intend to utilize the following statutes: sections 123, 123a, 527, 2201(c), 12006, and 12302 of title 10, United States Code, and sections 331, 359, and 367 of title14, United States Code.

------

Blah, blah, blah... (*SMIRK*)

Notice, Rev... the President is "declaring" a state of national emergency retroactive to September 11, 2001. Nothing about a "state of war." (And even if he had used the phrase "state of war" we'd still be left with the FACT that it's the constitutional perogative of CONGRESS to DECLARE war... there's nothing in the Constitution even remotely suggesting that the President can simply "proclaim" war.) Note furthermore that it is SPECIFICALLY this "state of national emergency" that he is referring to when he goes on with all the "pursuant to the National Emergencies Act" and "utiliz[ing] the following statutes" business.

Hmm... I'd say it's back to the old drawing board for you, old son. (*GRIN*)

BILL

Joan said...

Bill, I don't have time to read the citations now, but I wanted to question your assumption that, in the current conflict, the AUMF did not convey Congress's clear intentions. It seems pretty clear to me.

Also, you didn't address whether or not it is in fact legal to declare war under the UN Charter, or whether or not it's even necessary to declare a defensive (non-aggressive) war. These are important aspects of the question.

Revenant said...

Rev... I think you're referring to Proclamation 7463 — Declaration of National Emergency by Reason of Certain Terrorist Attacks - Executive Order 13223. Am I correct?

No, I'm referring to Joint Resolution 23, aka the "Authorization for Use of Military Force". The executive branch does not have the power to declare war, so it should be obvious that I wasn't referring to an executive order. There's no need to respond to the rest of your argument, since it was based on that false assumption.

I'm aware that you don't think the AUMF was a declaration of war. It is nevertheless a fact that it was a declaration of war and that Congress recognized it as such at the time. That's why Democrats don't try to claim that the war in Afghanistan is an illegal and unconstitutional abuse of power by the President -- which it would be, if he'd sent our troops to fight a war without Congress first declaring one.

William R. Barker said...

Rev - Sorry for the mix up. Right date, wrong document. (*SMILE*)

So... now that I have the RIGHT document up let's go over it:

To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

================================

I see your point, Rev. (*WINK*)

I ALWAYS saw your point, Rev. (*SMILE*)

But do you see MY point???

If you rely upon this document to claim that Congress declared war on the Taliban (and al-Qiada) in Afghanistan (and though neither Afghanistan nor the Taliban nor al-Qiada was specifically named you and I are in agreement that that's what Congress was referring to), how do you limit the president's authority to wage war against any nation (organization, or persons) on earth which the president attests (based on U.S. intelligence - whether accurate or not) planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons?

(Those last six words are a big part of the problem in my view.)

At the very least Syria harbored terrorists. (Or do you doubt that?) In any case, for the sake of argument let's say President Bush claims they did. Are we therefore at war with Syria? HAVE we been at war with Syria all this time?

Pick a nation... any nation... that is now or was during the 90's or pre-911 unfriendly to the United States.

Do you doubt that North Korea and Iran and even China and Russia probably fit the almost infinitely broad definition of "aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons?" (Especially the "harbored" part and perhaps the "aided" part?)

Here... I don't want to put words in you mouth so you tell me - how many nations would you guess (and feel free to name them) would fit into the construct of the Joint Resolution 23?

Are we (have we been?) at war with Pakistan? There's no doubt in your mind - is there - that elements of the Pakistani government/military/security services were cooperating and harboring al-Qiada agents... right? Did Congress actually declare war on this nation which our President has termed an ally in the war on terror? How about Sudan? Did Congress declare war on Sudan with S.J. Resolution 23?

My God... if this is a declaration of war... by it's very language the United States of America has declared war on unnamed PERSONS! (Wasn't sticking to unnamed "organizations" and nations enough?)

You mentioned Afghanistan, and if that's where it had stopped we wouldn't be debating this now, but that's NOT where it stopped. What you're arguing for is that Congress can pass a "general" war authorization and the president can take it as far as he wants to up until the time Congress says no or impeaches him. Well... since Congress couldn't act until the president actually DID go too far that means that for all intents and purposes Congress has given up it's war-declaring authority and the President can invade or bomb any nation on earth which he says he feels it necessary to in order to "prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

Do you really believe that this is what the Founders had in mind when they gave CONGRESS and ONLY CONGRESS the authority - and the RESPONSIBILITY - to decide issues of war and peace via the power to declare war?

Is this authority now on auto-pilot for all time until Congress passes a bill stating that this President or a future president no longer has carte blanche? (Sp?)

Enough. Obviously we're never going to agree.

Oh... one final point. Just in case you plan to cite the War Powers Act as a "constitutional" break on the President's unbound authority under S.J. Res 23, as far as I know no president has ever acknowledged the constitutionality of the War Powers Act.

Come on, Rev... join me on the "light" side! (*GRIN*) Acknowledge that Congress declaring war the old fashioned way with a clear declaration date and a specified nation or nations or "organization" in one identifiable spot (like the Barbary Pirates of old) would solve all the problems and answer all the questions I'm raising.

BILL

William R. Barker said...

Joan - Did my answer to Rev also answer your questions regarding AUMF? If not... ask me any specific question and I'll try my best to give you a complete and honest response.

(Since the AUMF is "pretty clear" to you (*WINK*), maybe you might want to take a crack at answering my specific questions concerning its scope and particularly its limitations.) (*GRIN*)

re: The U.N. Charter...

Specific Constitutional provisions and Amendments have priority over both simple "laws" (acts of Congress) and the U.N. Charter under any circumstances where there's a conflict between these laws or the U.N. Charter and the U.S. Constitution. (Does that answer your question?)

As for defensive vs. offensive military authority inherent within the President's Commander-In-Chief role and the logic of reacting immediately to combat invasion or attack... this one is harder to quantify.

Obviously Congress after WW-2 with the dawn of the Cold War and nuclear weapons and the theory of MAD undoubtedly authorized the President with second-strike authority. And my reading of history convinces me that Congress also meant to "trust" American presidents with even "first strike" authority if a president felt he had to nuke someone before they could nuke us and the president was willing to risk the political fallout (ha, ha! I made a funny!) that would result.

In other words, Joan... to borrow a football metaphor... I believe Congress acknowledges that sometimes a good offense is indeed the best defense. (*SMILE*)

That said... where to draw the line? Apparently units of the Mexican military (probably working "off the books" for smugglers, human traffickers and drug cartels) often violate our territorial integrity. Does this mean that the President has the authority - on his own - to order all available U.S. military forces to "invade" Mexico? (Heck... I say we capture the resort towns first and keep them for a few decades!) (*GRIN*)

Yes, Joan... there are all sorts of important aspects to each and every assumption we've been discussing and no doubt many we haven't gotten to yet. (*GRIN*)

Revenant said...

how do you limit the president's authority to wage war

By passing a new Congressional resolution limiting the targets he's allowed to attack.

Do you doubt that North Korea and Iran and even China and Russia probably fit the almost infinitely broad definition of "aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons?"

There's nothing "almost infinitely broad" about the definition of those terms unless you deliberately misread them to mean "any country that had members of Al Qaeda in it at any point". Neither the President nor anyone else in the government reads it that way.

Do you really believe that this is what the Founders had in mind when they gave CONGRESS and ONLY CONGRESS the authority - and the RESPONSIBILITY - to decide issues of war and peace via the power to declare war?

The founders split the authority to decide matters of war between the Executive and Legislative branches, placing all tactical and strategic matters under the President's authority and the power to declare war and peace (and, of course, control of the army's purse strings) under the control of Congress.

William R. Barker said...

Rev... we're basically at loggerheads, as I pointed out some time ago. I've had my say, you've had yours. I'm sure in one form or another we'll continue this in the future.

One final response, though: I certainly DO NOT "deliberately misread" anything and since I post the actual text in question and anyone can link directly to the documents the only result of your accusation is to make you seem overly aggressive and antagonistic.

Anyway... (*SMILE*)

Hey, Joan... you've shown not only an interest in the broader topic but also the ability to admit when you're not sure of something. For you and anyone else who is interested in further study/discussion of the topic, here are two books I can recommend. One basically takes my side and one takes Rev's side.

First... (to show Rev there's no hard feelings)... the "Rev side" of the argument:

"The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11"
by John Yoo
Hardcover - 378 pages
University of Chicago Press (2005)

up "against" my personal favorite...

"Presidential War Power"
by Louis Fisher
Paperback - 304 pages
University Press of Kansas; 2nd Rev edition (2004)

Of course there are many other fine books on the subject, but to get a fairly comprehensive "tutorial" on the subject these two - coming from different perspectives - should stake out the history and major points/counterpoints of both sides.

P.S. - If you google Yoo and Fisher you'll no doubt come up with tons of interesting info right online that might whit your appetite to read their respective books.

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