MoonDawg's Den: A Time for Open Debate

MoonDawg's Den

Wednesday, February 15, 2006

A Time for Open Debate

I'd like to thank Garry for giving me the opportunity to post on his blog. I believe that one of the largest problems with our country's political system is that there is a lack of balanced and civilized debate. I hope that we can have both here on this site.

That being said, I think that most of what I will post on here will be debate topics--open-ended questions that deserve a serious look from both sides. Many of these questions will be posed from a leftist point of view--I am a liberal, of course--to a conservative audience, which I believe I have here.

Here we go with my first question (I'm still amazed that I'm posting on a conservative blog. It's kinda cool):

The following is a direct quote from President Bush in April of 2004:


Now, by the way, any time you hear the United States government talking about wiretap, it requires a— a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.


We now know that this statement by the President was not true. For nearly three years prior to making this statement, the President had been authorizing warrantless wiretaps on people in America, who are protected by the Constitution that the President says he values.

Now, I know the arguments from the right that warrantless wiretaps are okay. I disagree with them for a number of reasons, but that's not the question I want to pose. There are hearings coming at the end of the month that will further this debate, and I will post more about it then.

My question is this: I believe that a certain president was raked over the coals by the Republican party for this untrue statement that he made to the press:


I want you to listen to me. I'm going to say this again. I did not have sexual relations with that woman, Miss Lewinsky. I never told anybody to lie, not a single time-never. These allegations are false. And I need to go back to work for the American people.


Why were Republicans so quick to demand transparency and accountability from the Democratic president Bill Clinton, but seem very slow to even ask uncomfortable questions of President Bush? Is this a double standard? Why or why not?

As people post comments, I will post replies. I hope that we can have a civil debate and get to the heart of some core issues that are affecting our democracy.

To read more from me, including my latest post on the Cheney hunting accident, visit my blog Confessions of a Mormon Liberal or my homepage, where you can find some of my fiction writing and music.

Cheers,
Jeff


GARRY RESPONDS: Again, a warm welcome to Jeff, and please do visit the links to his blog and his homepage, you'll find them interesting I believe.

Regarding the Bush quote on wiretaps, my friend Jeff's premise is incorrect: the President did not authorize warrantless wiretaps "on people in America" - rather, the targets of these wiretaps were suspected terrorist operatives outside the United States. Given the broad swath of electronic communications that the NSA intercepts from these suspects (about 5,000 - 7,000 are monitored at any given time, according to the original NY Times
article on the program), it is not surprising that some of the intercepts will involve a party located within the United States.

But that is certainly not the same thing as making specific persons within the U.S. the primary object of such surveillance; as the NYT piece said, NSA "still seeks warrants to monitor entirely domestic communications". Perhaps the President should have been more specific in his statement, and instead of saying "a wiretap requires a court order", should have said "some types of wiretaps require court orders but others do not, and decades of established case law - not to mention legal opinions and executive orders issued by previous presidents - give the executive branch broad authority to conduct warrantless surveillance of electronic intercepts in protecting the nation from foreign enemies." At which point the audience might have fallen asleep, but what the heck.

As to Clinton, I never had a problem with that particular lie in front of the press corps. Politicians lying to the media is as American as apple pie, especially in the realm of sex. If I was ever president, my entire cabinet would be made up of Hooters girls and there'd be White House parties that would make Tailhook look like a Baptist (or Mormon?) church social. The problem was when Clinton lied under oath, induced others to give false testimony under oath, and suppressed evidence sought by the courts.


Questions for Garry:

In the same paragraph that says 5000-7000 overseas persons are monitored, the Times reports that "the N.S.A. eavesdrops without warrants on up to 500 people in the United States at any given time." How does this fit into your argument that American persons are not the "targets" of the wiretaps? These 500 people are put on a "list" according to the Times, and members of that list are monitored. Wouldn't that mean that they were "primary objects" of warrantless wiretaps?

You claim above that this program is supported by "decades of established case law." In that case, it should be easy to find a Supreme Court case that upholds the President's authority to perform warrantless wiretaps without a court order on persons in the United States since the FISA law was enacted in 1978. Alberto Gonzalez couldn't find one; would you please supply that information for me? I'll even take an appellate court ruling that affirms the same.

I believe that the "executive orders" to which you refer are from Clinton and Carter. Have you read the entire text of both executive orders, or just the snippet that was mis-represented by Drudge and other conservative blogs? If you haven't, you can find a good version of them under number 4 here (You might find the others points interesting as well).

Lastly, I share your cynicism of politicians lying to the media. I would suggest, however, that if President Bush were ever to testify under oath, he might fall victim to the same problems Clinton had. I guess he learned from his ill-fated predecessor.

I look forward to your answers.

Cheers,
Jeff

12 Comments:

  • Good day Jeff,
    I don't see how anyone can make the statement "the President had been authorizing warrantless wiretaps on people in America, who are protected by the Constitution that the President says he values", and be taken seriously. These "people in America" were wiretapped because they were in contact with dangerous individuals abroad. I don't know if everyone in America is aware, but we are at war. The people we are at war with do not care one iota about our constitutional rights. The people who are in contact with them hope that people with a point of view similar to yours will convince our government to stop trying to catch them before they succeed in planning another attack. It seems that our media doesn't care about security of our citizens nearly as much as they care about dragging this administration through the mud. If the people in America are supect in planning attacks on our great country, we nor our government, nor OUR constitution, should protect them. Lets get serious Jeff. These wiretaps aren't about listening to Bob and Ralph talking about football scores. They're more about Bob and Mohammed talking about getting more soldiers of Islam into this country, or supporting the ones that are already here.
    Thanks for listening.

    By Anonymous Alex, At 7:56 AM, February 16, 2006  

  • Alex,

    It's time to let you in on a little secret: Liberals love this country and hate the terrorists. We also want them to be caught and killed. To suggest otherwise is to call me a traitor to my country, which I don't appreciate very much, so I'll appreciate if you'll dispense with the liberals-are-in-league-with-terrorist drivel that I see so often in the media and on the web. It is simply not true.

    As for your point of the wiretaps not being "about listening to Bob and Ralph talking about football scores," how do we know? The purpose of a warrant is to ensure that people being listened to meet a standard of probable cause. It insures that Bush isn't listening to Howard Dean and Ted Kennedy. If I recall, we had another president who spied on his political enemies, and a lot of the people who were around him are now around Bush. When Bush says, "Trust me," I cringe. I trust our system of checks and balances that allows for the courts and the congress and the president to oversee one another and to ensure that there are no abuses of power.

    I'm not saying that Bush is spying on his political enemies. I am saying that we will never know if he is because there are no checks on this program outside of the executive branch.

    Jeff

    PS-I'm all for wiretapping the enemy. But, if they truly are in league with al Queda, how hard would it be to get a warrant?

    By Blogger Jeff, At 6:34 PM, February 16, 2006  

  • Jeff,
    At no point did I say anything about any liberal being a traitor. Nor did I infer that you were one. Get a grip bud, I'm just talking to you. Most liberals I talk to just don't do enough in-depth research, and just don't seem to want to know facts. As to "how hard would it be to get a warrant", that depends on how fast the NSA needed to react. Have you read all of the data on this program as to how many warrants were changed when they WERE requested? I have. Do you know who Iyman Farris is? He is a U.S. citizen. Did you hear the one about the towers in L.A.? Those are just two examples. If they wiretapped me in their endeavors to stop these bastards, I don't mind a bit. That's how people who have nothing to hide feel. Have a great day Jeff, and God Bless America!

    By Anonymous Alex, At 7:01 AM, February 17, 2006  

  • Alex--

    I'm not sure how you can say that this statement did not mean that I want the terrorists to win:

    "The people who are in contact with them hope that people with a point of view similar to yours will convince our government to stop trying to catch them before they succeed in planning another attack."

    You completely implied that the point of view I was taking was in line with what the terrorists want. That would make me a traitor, right?

    Let's talk about research for a minute. You claim that "Most liberals I talk to just don't do enough in-depth research, and just don't seem to want to know facts."

    Let me give you some facts to chew on. You say that the NSA needs to set a tap quickly and therefore cannot get a warrant. Well, the FISA statute says that the NSA can wiretap an American without a warrant and then retroactively obtain a warrant within 72 hours. That puts a damper on your speed argument, doesn't it? More facts, in the Judiciary Committee Hearing on the subject, Attorney General Gonzalez testified that they get a warrant from the FISA Court when there is enough evidence to get one, and when there's not they don't get a warrant. If there's not enough evidence to get a warrant, who are they spying on?? A warrant only requires probable cause. That's a minimum standard that should be met.

    Might I suggest that liberals, like me, get their research from unbiased sources like C-Span and NPR, and Conservatives get theirs from FOX News and Conservative Blogs that have an agenda. I'm interested to hear how you respond to my two facts presented hear.

    Also, I don't have anything to hide either. That's why I don't want my government to spy on me. I want them to prove that they really are chasing the bad guys instead of the innocent people. Here's an article you might find interesting from the Washington Post.

    Are the targets of this program really reasonable threats? If they have probable cause to tap these phones, why do they not find more guilty people? Is a search "reasonable" like the Constitution mandates if it is proven ineffective, as these searches are by the Post?

    I'm unfamiliar with your examples, can you please post links so I can read up on them?

    BTW, I have a "grip." I just want conservatives to think about what they are saying when they say, "liberals don't want us to catch terrorists." If you say that and believe it, you believe that 40-something percent of the American public are traitors. Think about it. That is what you are saying really means. It's not just a pithy talking point. It's insulting, and it's time the people who say it take responsibility for their rhetoric.

    Cheers,
    Jeff

    By Blogger Jeff, At 10:46 AM, February 17, 2006  

  • Ooops! I spelled here h-e-a-r in the above post. I'm an English teacher and shouldn't be doing that. :)

    Jeff

    By Blogger Jeff, At 10:50 AM, February 17, 2006  

  • "Al Qaeda's communications network was severely disrupted, he said. Operatives could no longer use satellite phones and had to rely on couriers, although they continued to use Internet chat rooms."

    http://www.jihadwatch.org/archives/001344.php

    http://www.laobserved.com/archive/2006/02/mayors_statement_on_libra.html

    http://www.cnn.com/2006/US/02/09/whitehouse.plots/index.html

    http://www.gopbloggers.org/mt/archives/002905.html

    And this one is priceless:
    http://news.findlaw.com/ap/o/632/02-10-2006/2f1b000e647d36fe.html

    ["The people who are in contact with them hope that people with a point of view similar to yours will convince our government to stop trying to catch them before they succeed in planning another attack."

    You completely implied that the point of view I was taking was in line with what the terrorists want. That would make me a traitor, right?]

    No. I'm not implying that liberals want what the terrorists want. I'm plainly stating that the terrorists are glad you have the point of view that you do, because you're naiveté is very helpful to them.

    By Anonymous Alex, At 11:23 AM, February 17, 2006  

  • I'll post my response to Jeff's questions in the comments here, since the original post is already rather lenghty (although with Alex in da house, the comments are filling up pretty good too!):

    "it should be easy to find a Supreme Court case that upholds the President's authority to perform warrantless wiretaps without a court order on persons in the United States since the FISA law was enacted in 1978."

    SCOTUS has never ruled directly on the NSA program (although this may change thanks to suits filed in recent weeks by the ACLU and others). However the federal appeals courts have made relevant rulings, two of which I referenced back on your own blog - US v. Truong (1980) and Sealed Case No. 02-001 (2002). The latter is especially key because the judgement was rendered by the FISA Court of Review, the court which oversees the regular FISA Court. If you're interested, AAG Moschella laid out the whole range of case law that grants the executive legal authority for NSA's program in a letter to the Senate Select Committee on Intelligence:

    http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf

    "Have you read the entire text of both executive orders, or just the snippet that was mis-represented by Drudge and other conservative blogs?"

    Yes, I've read the entire texts of the EOs. The Media Matters analysis you link to is flawed, however. Regarding Carter's EO, the relevant section of FISA says warrantless wiretapping is permitted by the AG provided there is "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party". Note the phrase "substantial likelihood" - if the warrantless surveillance is targeting foreign-based communications of foreign agents, there may be a chance that communications involving a US person could be intercepted, but certainly not a "substantial likelihood". If Congressional intent was to eliminate any possibility of domestic intercepts, you can rest assured the phrase "subtantial likelihood" would read something like "any chance whatsoever" instead. The same phrasing in the statute applies to Clinton's EO as well.

    By Blogger Garry, At 2:09 PM, February 17, 2006  

  • Garry-

    I'll have to read up on the cases that you quote; however, I find your analysis of the EOs flawed for this reason.

    The New York Times article, which is linked to in the original thread, says that up to 500 people in America are being monitored at a time. It also says that these people are on a "list" that is constantly updated. The people on this list, as I understand it are directly monitored by the NSA. I would say there is a "substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" since people in the US are the targets of the surveillance.

    How do you resolve this?

    As for Alex, I believe the Lyman Farris case is exactly why we need warrants. If we intend to prosecute people who are picked up under this program, we need to follow the criminal statute, which is FISA. If we don't, many people like Farris will be able to challenge our methods and get evidence thrown out. That will definitely not help in the war on terror.

    I believe it is more naive for the Bush Administration to believe that everyone will buy into this. The latest poll I saw said 49% of Americans believe that this is illegal. I will post the link later. That 49% will grow to a majority soon.

    Cheers,
    Jeff

    By Blogger Jeff, At 3:38 PM, February 17, 2006  

  • Jeff,
    He's using your argument without anything to back it up. Pretty much the same way you are. His thinking is flawed. I don't believe the majority of Americans will ever buy into arguing to protect terrorists, even if they don't realize that this is what they're doing. Oh well.

    By Anonymous Alex, At 4:25 PM, February 17, 2006  

  • Yes that was poor wording on the NYT's part in the original article - it is the international communications with foreign suspects of these 500-odd US persons that are being monitored...as the article says, NSA "still seeks warrants to monitor entirely domestic communications" - as well it should. But the US persons are not the primary target, the foreign agents are. In some cases, NSA passes on the names of the US persons to the FBI for further investigation, and at that time those names may be referred to the FISA Court for taking out a warrant to monitor all their communications, domestic as well as international.

    In any case, this is settled law unless SCOTUS strikes down the 2002 opinion of the FISA Review Court when (if) it agrees to hear the suits brought by the ACLU, et al - if they make it past the circuit court level, that is. Don't hold your breath...

    By Blogger Garry, At 4:55 PM, February 17, 2006  

  • Garry,

    "Poor wording"?? I don't buy that. I think the article is clear. (Also, you used that argument to defend the president's statements. Are all statements that help make my case "poorly worded"?) If it was just international communication, the article isn't contraversial at all, and the White House wouldn't have to go through its two months of CYA that they've been doing.

    You're going to have to come up with something from the administration to justify your "poor wording" claim. The fact is that Alberto Gonzalez testified to the Judiciary committee that they apply for warrants for people that meet the probable cause standard, and they don't apply for warrants for those who don't. He didn't make the argument that you are making here. Maybe he should have because I'd have an easier time swallowing yours although I still might choke to death.

    Alex, protecting civil liberties is different from protecting terrorists, no matter what you think. I will fight to the death for our Constitution. Let me ask you, if we allow our liberties to be erroded slowly in the name of security, what have we gained?

    My two cents,
    Jeff

    By Blogger Jeff, At 5:48 PM, February 17, 2006  

  • My bad - the phrase "poor wording" was...poor wording on my part! It would have been more accurate to say "incomplete" instead. You simply cannot fully cover complex legal issues relating to such an enormous and wide-ranging data mining program in a speech or even in a newspaper article.

    Even the Gonzalez testimony is incomplete - earlier I posted a link to a letter from DOJ to the SSCI summarizing the executive's position, here is a 42-page white paper from DOJ that fully documents that position (I suppose the AG could have just read the whole thing to the senators, but committee hearings are already boring enough): news.findlaw.com/hdocs/docs/nsa/
    dojnsa11906wp.pdf

    By Blogger Garry, At 11:27 AM, February 20, 2006  

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