I was watching a discussion of the Times article on Fox. The problem seems to be that at Justice they are still dragging their feet when it comes to FISA warrants. Six months was the time period quoted to get one before a judge.

Now you can have a very compliant judge but the clock starts after he gets the material not before.

In this day of instantaneous communications six months is a little long to wait for an agency to prepare a brief.

Gutting Justice of the semaphore holdovers may be neccessary for the system to improve.

Check out a funny site dedicated to the absurdity and satire nature of saying "It's All George Bush's Fault!"

http://www.itsallgeorgebushsfault.com

Regards,
Notta Libb

so if someone can give me a brief summary of any general conclusions that were reached I'd be interested to hear them

1. The McCain bill establishes vague, ambiguous standards by definining 'cruel, inhuman, or degrading treatment or punishment' as conduct prohibited by the Constitution.

2. By referencing the Constitutional protections for criminal suspects, the McCain bill illegalizes physical and mental coercion. Supporters of the bill still seem to think that drugs, slaps and lengthy intorogations would be legal, but our police can't do it.

3. Most analysis assumes that courts will be interpreting and enforcing its provisions. The Writ of habeas corpus seems most likely.

4. The McCain bill seeks to set one standard, that does not distinguish between a common roadside bomber and a high level terrorist. It also doesn't distinguish between the conduct of a trained interrogator and a soldier in the middle combat operations.

Dan,

I was wrong about class actions being possible.

Otherwise it is much worse than you suspect. The McCain amendment is not ready for prime time. It says our soldiers must read Miranda rights to terrorists captured in the field, and stop questioning them when the terrorists say they don't have to talk. This is what giving terrorists 5th Amendment rights means.

Here is the analysis showing this:

http://www.nationalreview.com/mccarthy/mccarthy200512151421.asp

"... The Fifth Amendment — made part of the definition of “cruel, inhuman, and degrading” by McCain, contains the privilege against self-incrimination. It used to be that this privilege simply meant freedom from being forced to speak against your will — which at least has the resonance of torture and other forms of obvious coercion.

But it has become so much more than that. In its 2000 decision in Dickerson v. United States, the Supreme Court broke with over 30 years of jurisprudence and held that the rights it first devised in the famous 1966 Miranda case are not just judge-made prophylactic rules designed to protect the separate constitutional right against self-incrimination. The Dickerson Court elevated Miranda to constitutional status. “Miranda rights” are now considered part and parcel of the core Fifth Amendment guarantee itself.

Failing to provide Miranda rights is no longer just a mere “Miranda violation” — the upshot of which was the suppression of a confession not because the Constitution required it but based on a policy choice to promote good police behavior. Failing to provide Miranda rights is now considered a full-fledged violation of the Constitution — of the Fifth Amendment itself. As a matter of law, no Miranda warnings now means a person in custody is constructively considered to have been coerced — no matter how well he has been treated, no matter how much his physical comfort has been respected, and no matter that he may already have known his rights based on prior arrests.

How does all that play into the McCain amendment? As we’ve seen, its Section 2 would forbid the “cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth … Amendment[.]” (Emphasis added.) Now, the lack of Miranda warnings may not strike you as particularly cruel or inhumane (it is unquestionably unusual for a person in custody). But when it comes to such matters, it really doesn’t matter what you, or I, or even Senator McCain think. The Supreme Court, which authoritatively decides what constitutional provisions mean, has already decided that the lack of Miranda warnings renders interrogation unconstitutionally coercive in violation of the Fifth Amendment.

As a result, failing to provide Miranda rights is sure to be found by many federal judges to be a form of lawless coercive interrogation that fits within McCain’s prohibition against cruel, unusual, and inhumane treatment. This is especially so given that judges frequently resort to legislative history in construing vague, confusing, inexact statutory terms. Anyone reading the Congressional Record here will find that the whole purpose behind the McCain amendment was to make coercive interrogation illegal.

If that is the case, then al Qaeda terrorists captured on overseas battlefields in the war on terror would have to be given Miranda rights before they could be interrogated. Forget about water-boarding. They would actually have to be advised that they are under no obligation to speak to interrogators, that if they do speak their statements can be used against them as evidence in court, and that they are entitled to have a lawyer — paid for by the American people — present and assisting them at all times during questioning.

We would also theoretically have to provide such lawyers on request — lawyers who, naturally, would counsel their terrorist clients not to tell our government anything.

TOO FANTASTIC? NO, IT’S ALREADY HAPPENED
“Wait just a minute,” you say. “You’re being an alarmist. Miranda rights for terrorists captured on the battlefield? It’s too fantastic — no one will ever say the law requires that.” Well think again, because it has already happened.

In late 2000 — in the flighty days before 9/11 made us think more soberly about our security — a federal judge initially suppressed the confession of Mohamed Al-`Owhali, who had blown up the U.S. embassy in Nairobi, killing over 200 innocent people. Al-`Owhali, a Saudi, had no American constitutional rights. He had been in the custody of Kenya, which does not provide Miranda protections. If the FBI agents who were allowed to question him had advised him of the standard Miranda rights, they’d have been lying to him.

No matter. The judge decided it was as if American agents carried the Fifth Amendment around with them wherever in the world they went. He thus reasoned that the failure to give Miranda warnings, in Kenya, meant the confession — on which the whole case depended — had to be suppressed.

Eventually, the judge reconsidered and permitted the confession to be introduced at the trial (at which al-`Owhali was convicted). The judge was able to do that because he had some legal flexibility. At the time, dubious at best was his premise that the Fifth Amendment actually applied to a Saudi in the custody of Kenya whose only connection to the U.S. was to bomb our embassy.

It will not be a dubious premise anymore if the McCain amendment becomes law. Al Qaeda, which shouldn’t even get Geneva Convention protections, will now be cloaked in the majesty of our Bill of Rights. Who knows how far that will be stretched over time as the federal courts, thanks to the Supreme Court’s shattering 2004 Rasul decision, begin considering hundreds of challenges by enemy combatants to their wartime detention.

The McCain amendment may have started as a well-intentioned effort to minimize torture. As written, however, it has all the makings of a debacle ..."

Marty Lederman has a four part summary of the good, the bad and the ugly of the McCain Amendment (Linked through Volkh Conspiracy which has a convient index)

His major concern is that there are other bills pending which would eliminate judicial review, making the McCain bill a paper tiger. He's right; there is no right without a remedy. If detainees can't get to courts, the only way I can see these issues being raised is my internal disciplinary actions.

He also says (and I hadn't heard this) that there appear to be a couple of changes to the McCain bill: (1) give CIA interrogators some sort of legal immunity and (2) require a military body to assess the credibility of coerced statements (which Lederman suspects is an effort to make coerced statements admissible as evidence -- I'm lost on that one)

Also Lederman fears that the law is written so vaguely that the President might simply ignore it on the basis of some perceived loophole. Inquiring minds want to know: Is that an accident or a feature?

Dan,

Tom succesfully makes one of the points I failed to fully and properly articulate in my dissenting comments in your previous praiseful posts. What I failed to distinguish was the general or 'class action' v. the individual interrogator lawsuit and the broader attack on policy it lends to rather than the criminal prosecution of an interrogator. (Thanks for that language, Tom.)

This is what most strikes fear into me about this bill. The Ramsey Clark's will be lining up at the steps of the Supreme Court to do high profile (and extremely harmful) public battle against our prosecution of the War on Terror through this vehicle. It's one thing for him to travel to Iraq, it's quite another to lay the groundwork and set the stage for him and his ilk to do so here.

On governing policy principle, I again will suggest that the language of the bill deferring to the text of an Army field manual as law is counterproductive and counter to the constitution.

While I openly have more confidence in the officers of the Armed Forces than Congress when it comes to such matters, that a change in the language of the field manual at any point in the future will in effect be a change in the language of Federal Law without the active involvement of the elected Congress is more than just a little freightening.

The Bill's intent and the language of the Field Manual may be congruous today, but what ten years from now should a room full of officers change the language of that manual?

What we will have is Military officers, by deferment of Congress, writing and changing Federal Law.

This, sir, is insane. Constitutionally speaking.

PD Shaw,

The McCain amendment itself is a bug. It was written as "feel-good" legislation with no consideration for its real-life consequences.

Great comments on the specifics here, unlike the MSM which is fixated on the Pro-torture/anti-torture meme. I want to frame this in a much broader sense.

I've worried a lot since 9/11 about defining the GWoT. Without a proper definition, and related scholarship, it becomes difficult to form a logical, fair, and just set of rules of engagement. This is particularly true in context of this war as the enemy is hiding essentially in every country and supporting elements are attempting to exist legally within our own and other countries.

Unfortunately, I believe that GWB has made an error by failing to publically and legally define a broad, aggressive set of measures for dealing with the enemy and the legal and military techniques needed to attack them. The present rules of engagement come from the Patriot Act and a handful of Congressional resolutions. The problems with these are currently manafesting themselves.

I believe we need strong, harsh and frankly dangerous powers put down in legal form for the President to use to fight this war. Posse Comitas no longer makes sense. NSA wiretaps DO make sense. Unfortunately, as 9/11's memory continues to fade this seems increasingly unlikely.

I blogged about my thoughts on this:
Political Fred

Fred,

I agree about President Bush abdicating his responsibility to lead here - a leader he isn't. But there is also enormous institutional inertia and overt resistance here. I posted on this earlier here:

Thanks for the brief summary, guys.

Greg seems to feel otherwise, though I'm interested if any of what he says adds anything to what we've discussed here amidst all the venom.

And once again let me thank all of you for reminding me why law is not my chosen profession.

Dan,

The leading feature of the McCain amendment is how vague and nebulous it is. While that, among other things, leads to absurd results like Miranda rights for foreign terrorists, it in particular leads to a new judicial role in regulating the conduct of war abroad - new in that it is intended to take place while the war is on-going.

You may recall arguments as to whether the war on terror should be a criminal justice or a military process. The McCain amendment is most definitely an attempt to make it a criminal justice process.

It is also intended to let Congress claim the credit for doing something while avoiding potential blame for doing it wrong - vague rules are like that.

Which is one of the reasons the Constitution explicitly made the President the Commander-in-Chief of the armed forces - to give a single person the responsibility, the duty, and the power to wage war.

President Bush has definitely been derelict in his duty of defending the core power of the Executive Branch - war - from encroachment by the other branches of government.

_You may recall arguments as to whether the war on terror should be a criminal justice or a military process. The McCain amendment is most definitely an attempt to make it a criminal justice process.

It is also intended to let Congress claim the credit for doing something while avoiding potential blame for doing it wrong - vague rules are like that_

I would concur. My own post is http://themiddleground.blogspot.com/2005/12/torture-bill.html

excerpt

1)This bill is all inclusive of all prisoners taken during military efforts. It assigns all prisoners the same protected status as "prisoners of war", a protected status that is not assumed by any treaty, not even the Geneva Conventions. The Geneva Conventions do not assign these prisoners, also referred to as "sabatouers" and "terrorists", any protection because they operate outside of the laws of war,[snip]

In which case, the Geneva Convention does not protect them. If men without uniforms commit acts of war against a civilian population, they are not protected by civilized law.

That simple.

McCain's law seeks to eliminate that clause and pretend that all men are equal and all acts are equal.[snip]

Which is the second part of the problem with the bill. He enshrines the words "humiliation, degradation and torture" as equal in the bill as if all acts are equally applicable to all prisoners, equally repellent and equally punishable. Further, because the language is so wide and the law will now be congressional law, it means that the government is not recognizing any set precedents or existing law to validate existing established limits. Which means that every time a prisoner has their razor withheld, their skittles taken away, is forced to sit through 8 hours of John Stewart or Janine Garafalo, or thinks that his time in solitary confinement was overly long, the case will be brought up in front of the judge for review, to drag out forever, while the prisoner is exempted from interrogation pending a decision about the legality of the actions since no precedents will exist to guide the JAG or civilian lawyers or judges.

IE, make it up as they go along while national security is endangered, particularly since cases heard before the court means all information is out in the open or at least whatever information the prisoner or their lawyer could let slip.

Third, I believe this is grandstanding with a major cop out at the end. In the constitution, Article III gives Congress the power to make laws about "captures on land and sea". Which, on the off hand, this is what this proposed bill is doing, fulfilling their obligations. However, the fact is, by making the bill so broad, they've effectively handed the definition of "torture, degredation and humiliation" over to the judicial system.

This is a bunch of folks who want to be seen as acting appropriately to secure civil liberties, making nice with the "world figures" they might have to deal with some day if they ever want to be the President or on the Senate Foreign Affairs committees and, all at the same time, selling our national security and our men and women in service, right down the river.

It might have seemed like a good idea to make this law, but the reality is, these folks should have stuck with simply revalidating the field manual that governs these activities and that they already approve. They could have simply made a resolution re-affirming its status as the book that governs treatment of prisoners. Further, they could have made statements on the record that also re-enforced the the UMCJ, without making a new law, that would remind officers that they are to govern the actions of their subordinates, that all people in the military are subject to the UMCJ and that they expect the military to act accordingly. Any new prohibitions on activities could have been codified in the UMCJ.

Last, if it is a matter of the CIA, it is the Senate oversight committee's job to review and set the parameters of operations which includes CIA employees being subject to existing civilian laws, sanctions and being terminated from the CIA.

In short, while I am no lawyer, this seems like making bad law for the sake of appearances and abdicating responsibility by congress to over see these matters, giving the power to civilian courts, and, instead of validating our adherence to conventions, actually undermining the purpose of these conventions.

There is no problem w/ the MCCain legislation as written. The concerns are BS. They are BS because if Congress had chose to do oversight intially and Bush had some real balls instead of OUR soldiers, instead of asking for broad open ended authority the President would have gone to Congress w/ the concerns and needs for change in order to engage in a new kind of warfare and made the case to the public and Congress on why new laws need to be written and others amended. Then we would have had the debate. Instead he has attempted a number of end runs around the Constitution both in regard to Presidential authority and Congressional oversight. When caught he squeals like the cowardly pig with his snout caught in the Constitutional fence.

The remaining problem w/ the comments here are a lack of strategic thinking and failure of tactical thinking. The rush to dfend bad policy on the grounds of what it means to the war is poor tactics and bad strategy. You are too often guilty of trying to defend the village(THE CONSTITUTION_) by destroying it. Why should we give the government the right to destroy checks and balances in the name of defense?
Why is it so many Conservatives-whom prostate themselves before the manna of the Republican party- are unable to see that this expansion of government in the name of security is no different than their claim of leftist statist government and overreach. One reason is plain fear. We ought to be past that now.
The other is their goal of permanent Republican majority government by stacking the courts to ensure court decisions that overlook both Congress' and the Supreme Court function of checks and balances. Here on the Presidency.
Get a grip cowards. The GWOT can be one without the institution of gulags hidden abroad in countries blundering their way towards a function democracy or continuation of kleptomanic autocracies. Nor do we need torture. And most importantly we are more than capable of passing and making laws to protect OUR country from the Jihadists without becoming like them. In doing so we remain a beacon of light for freedom and not the shadow where the darkness of the Jihadists lies.

katt,

The link in your post seems to have been hacked.

Terrorists are somewhat protected by the Geneva Convention protocols we have signed - somewhat for two different reasons. First, even unlawful combatants may not be tortured under it - they're just not entitled to POW status. They may be shot on capture at the captor's discretion - the captor just can't torture them first (I repeat, this is under the GC protocols the U.S. has agreed to - there are lots we haven't agreed to).

Second, the GC are not self-enforcing and any government may violate them for reasons of state. The Supreme Court has held repeatedly that no treaty signed and ratified under U.S. law is binding on the U.S. government if the govt. chooses to disregard it (though state governments and state courts must continue to give treaties full faith & credit until a President says they don't have to).

American law actually gives unlawful combatants greater protection than under the GC - among other things, it requires that military tribunals try and convict captured unlawful combatants for violation of the laws of war, and sentence them to death, before they may be executed. The GC protocols binding on us only state that, when the unlawful combatant status of prisoners is questionable (i.e., when they are not "captured in arms" - a legal word of art), a "competent tribunal" must first determine that they are unlawful combatants before the captor can do what it wants with them.

As an example of this distinction, John Walker Lindh was "captured in arms" as was the Hamdi guy (I forget his first name) - they were members of Taliban units which surrendered to the Afghan militia we paid to change sides and fight for us, and were later handed over to American forces. There was no question that they were unlawful combatants.

Padilla - the "dirty" bomber guy - was captured in civies at an airport, so he was not "captured in arms" and, under the GC, must be found by a "lawful tribunal" to be an unlawful combatant before being treated as such. The U.S. govt. has recently chosen to instead try him on lesser criminal charges under the regular federal criminal code - 18 U.S.C. whatever.

And the American legal prohibitions of torture ARE binding on the federal government - it can't disregard them the way it can the Geneva Conventions or any other treaties we've signed.

The McCain amendment doesn't give terrorists any greater protection against torture than already exists under federal law. What it does instead is define torture upward as anything prohibited to regular state and local police questioning American citizens who are arrested on normal criminal charges.

Robert M --

Your muddled thinking is why we are staring into the abyss. But not the way you think. Since 2001 we have been spared Beslan, Madrid, Bali, Jakarta, London, Thailand, Tunisia, Istanbul, Amman, and Port Said. Why?

Because GWB took measured, moderate, and overseen measures to put the most important civil liberty FIRST. That to remain alive and not murdered. Neither the police state and the mob. After tying his hands, Dems and the Media will assure BOTH. People will not put up with terrorism and seeing friends and family killed, and rather than surrender (which is what the Media and Dems demand) you'll get first the mob ala Sydney, and then the police state ala China.

The "Miranda Rights" for terrorists guarantees that attack after attack will succeed. That's the inevitable fallout for the McCain Amendment, and we will see it result in lives being lost. The 9/11 Commission detailed point after point where the plot could have been stopped but was not by rigid concerns for civil liberties and PC garbage. One example was the "Gorelick Wall" set up by the Clinton AG preventing intelligence agencies from telling Law Enforcement about plots; and vice versa. The Patriot Act broke that wall but it's going back up on Jan 1. Able Danger found Mohammed Atta and two other hijackers as part of a terror cell a year before 9/11 but it was shut down and it's data purged, forbidden from telling what they knew to Law Enforcement. Because of fears of civil liberties abuse. Thus, 3,000 Americans were brutally murdered.

Which means if the CIA or NSA find out about a plot in Pakistan, they will be legally UNABLE to tell the FBI. Thus the plot will succeed.

After the second Beslan or worse a nuke or two; you'll see people simply take things into their own hands. This means the ugly vigilante justice where the state fails to provide elemental security. Look at Sydney.

Wiretaps on people who call up Al Qaeda connected numbers abroad? Turning up the AC on terrorists who won't talk (while they behead captives for "fun")? Most people think these are limited, common-sense measures. I guarantee you that the failure of these measures by the Press and Dems outing them or forbidding them through political pressure will lead to attack after attack succeeding.

Every flight attendant, pilot, and passenger who flies takes a risk that the "muslim looking" guy could be a terrorist who will kill them all. Brutally. They don't insist on personally conducting searches or refusing the guy the right to fly because they trust GWB to secure the nation by doing everything in his reasonable power to prevent attacks. Multiply this by people in the mall, the supermarket, sports stadium and you get the idea. GWB has been the greatest protector of civil liberties in generations. When your life is at stake all ideas of PC and multi-culti garbage go out the window.

thank you for your entry.i get it.
it's very great

Thanks for the link Tom. You make some good points. The fact the were very few and limited institutional changes is quite troubling considering the scale of the 9/11 failure. Based upon the NYT NSA story, some of the changes post 9/11 were "dark".
The disadvantage of doing it this way is that sooner or later the light of day shines on these practices and because they were hidden initially they take take on the patina of illegitimate actions, even if there is a good case for them.

When I was still in school, I worked a summer at an appellate death penalty defense center. I was assigned some projects involving an army soldier that admittedly killed his wife and her lover while on leave. He had fled to Mexico after the shootings, where he was captured by Mexican authorities, tortured and eventually returned Stateside where his confession was read to a jury. At his trial, someone with personal experience with Mexican jailhouse torture testified, as well as someone from a HRO about the prevalence of torture in Mexico and its unreliability. The jury found his tortured statement that he had been stalking his wife to be more reliable than his later confession that he caught his wife performing a sexual act and he shot them in the heat of passion. He was later executed.

I’m pretty sure that’s still the law, regardless of whether the McCain amendment passes. Evidence obtained through torture would still be admissible if it is not performed by, or at the instigation, of the U.S. government.

With this background, I find some of the arguments being made to be strange. Greg makes a plea to patriotism and American values going back to Washington. But brutal torture was practiced in this country routinely until the 1930s and the fruits of foreign torture are still competent evidence today.

Others complain about the unreliability of tortured confessions, but in my example, a random jury of peers can legally be expected to weigh the credibility of tortured confessions after a crash course from prosecution and defense experts.

I still think my guy was screwed over and that an American citizen (a soldier no less) should expect better treatment than a foreign insurgent or terrorist. But his execution apparently did not set back the cause for the hearts and minds of the world.

Everything does not go out the window during war time.This is the US we have a constitution to run are affairs. We are capable of passing laws to adjust to the situtation. To give that up and act in darkness and hide is to become like the Jihadists. Think strategically not tactically. We are trying to win a war of ideas.

The enemy we face will always be capable of acting as they did. I sat at a monitor and watched Mark Hynes say and we are switching to a picture of the world trade center. I went into the hall and asked someone if they seen it. The reply was it was bound to happen the jets line up with the towers as their visual point to land across the water. I am thinking this is just a f234 up(my father was a fighter pilot and everytime a plane crashed he said remember its always pilot error and you can bet he fought to the last to keep it from happening). Then comes in the second. boom. The best you can do is lower the frequency and intensity of terroist acts.

In a war there will always be casualities. The question is are they because of commission or omission. By your desire to throw out the constitution reminds of that during the WWII the NAZI pilots were allowed to use the officers mess at the Tuskeegee Airman's final training station in SC. The Crackers loved it. Damn niggers good for nothing. Let's kill some more damn Jews. You don't care if people die because you flaut the LAW Is that your approach? Why would I conclude differently? You clearly do not remember the story from the concentration camps; I watched them take away the Jews, the Homosexuals, the Catholics all this time I said nothing.when they came to take me away there was no one to complain to.

What those facts tell you is is that people lives do not mean a thing if you do not start from a position that under law they are the same. If you lose lives by omission of LAW you are as big a murderer as the Jihadists and it is your own country men. Our legal system is designed to acknowledge status under the law by what you do and are responsible for. If the President is responsible for negotiating treaties and executing the law and the Congress has to legislate and approve them the President does not have the right to arbrogate them. He is breaking the LAW if he does so. He should be impeached.

The Goelick wall came about becasue past presidents in an over reach of executive power used the national security services to spy on its own people. The decision not to codify this before Congress is just as gross an abuse of Presidential Power. So once again people were murdered by omission of the laws.

This is not PC drivel. These are facts. All the places you sited how far different approaches to how they act and abilities to act on them. Breslan and the Moscow theatre why weren't you there so you could experience unchecked abuse of power? Do you want a force that murders its on people because they act without regard for their own people but to wipe away the stench of their own incompetence? This is the road you wish to lead us down. Why should we give up our freedom to secure ourselves from a lawless enemy by becoming one?

Talk to Abraham Lincoln or FDR about it. This wiretapping story is such a nonstory. Anybody care to take a poll of Americans and ask if the government should need a search warrant to monitor a call from Osama Bin Ladin to anyone? How exactly does one get search warrants in the time of a phone call? 'Judge, wake up, you need to hear this evidence and sign... nevermind they hung up. Guess we'll get Zawahiri next time.' Once the facts come out this issue is another big loser and just adds to the perception that dems are unserious about national defense.

I tend to think the recent wiretap story and portions of the Patriot Act merely reflect law enforcement's general disdain for paperwork. I think Dan's correct that judicial warrants should be easy and they appear to have been granted in all but few instances, which probably have less to do with any substantive disagreement, but with paperwork issues.

Its also my understanding that the laws at issue here are complex and situational. This strikes me as the modus operandi of the Bush administration, don't go to the Congress to seek clarification or approval, surf the ambiguity and just do it. The result, as in the McCain amendment, is to give the initiative to others.

The benefit of a warrant is it prevents law enforcement from making collective, as opposed to individualistic, determinations. If FBI suspects someone in CAIR is funelling money to terrorist, the warrant is going to be issued, but not for every member of CAIR.

Robert M: The Constitution protects "the people" from "unreasonable" searches. There is a lot of room for applying different standards for different circumstances, particularly if some of "the people" are not of the United States and the President's war powers are implicated.

Mark: I'm not sure that in an emergency situation a warrant is required. Warrants aren't required when law enforcement is in "hot pursuit" or immediate action is needed (like the car might be moved). There are also means of getting a warrant over the telephone to a judge (paperwork to follow).

"don't go to the Congress to seek clarification or approval"

Except that the Adminstration did go to congressional leaders with this, numerous times.

"I'm not sure that in an emergency situation a warrant is required. Warrants aren't required when law enforcement is in "hot pursuit" or immediate action is needed (like the car might be moved)."

I dont know that you can ever call an intercepted phone call 'hot pursuit', and if you can this entire contraversy is moot because that is exactly what we are talking about.

"There are also means of getting a warrant over the telephone to a judge (paperwork to follow)."

Perhaps but even seconds could be critical. I dont know how much is sound and fury about this, but one of the rebuttals is that the secret judges are taking inordinate lengths of time to issue warrants like these.
Furthermore, these interceptions are said to be subject to after the fact judicial review, which is in practice what you are talking about.
I think we are going to need to hear a lot more inside baseball to figure this thing out. The problem is this was a highly secret program. Apparently Congressional leaders heard the arguement, understood and agreed with it, and allowed it to go forward. That, combined with Bush's immediate and fierce defense stongly suggests the critics are way out on a limb on this one.

Oops, I didn't mean to give Congress any slack for whatever poignant meaning they want to attribute to their silence about the program. And I haven't read any specifics about the nature of the surveleince, but I believe generally the more immediate the need for surveilance, the less likely a warrant is needed.

(And I also assumed that the surveilance was similar to what we did against El-Hage, an American citizen and al-Qaeda agent, while he was residing in Kenya -- we simply monitored all of his phone calls for a year. We could have gotten a warrant, but the court agreed we didn't need one so long as we had the approval of either the POTUS or the AG)

Here's an actual legal opinion on the wiretaps:

Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument -- if, I think in the end, an unpersuasive one -- that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion.

So, I would be outraged if I could be sure.

PD Shaw
As you point out the jihadist's are not Americans. That does not exclude those whom are American citizens from the law nor does it give the President the right to do anything. As you point out it is the President's modus operandi to act without going to congress or having them pass a law to deal w/ the problems as he see's fit.

Mark Buehner
Please move to the USSR so you can understand how lucky you are.

Serious national defense involves all of the American Citzenry. What better way for them to help than to intiate a discussion and pass the appropriate law. If the President acts as he see fit when does the laws he illegaly executes expire. They don't. A crisis can be manufactured at any time to keep them going.

estroying the Consititution and its specific renumeration and definition of powers to each branch of government can't be overthrown because you are a coward. the Jihadist want to murder us all. We can beat them by using the rule of law to undercut any authority they have by constantly being one step ahead and in sync without the LAW.

You would problably have to worry aboout this less if the Preident wasn't so incompetent. Three hundred thousand troops would have secured a large number of arms sites and closed the border to most infiltrators. This monopoly of power was the correct one not trashing the Consititution to make up for incompetence.

"Please move to the USSR so you can understand how lucky you are."

Now that will advance the conversation.

"If the President acts as he see fit when does the laws he illegaly executes expire."

I dont understand. How does an illegal law expire? Or if the execution is illegal what does it matter when he executes it, expired or not? And which law are we talking about? Which crime has the president committed? Oh, yes, the little details an enquiring mind mind ask in response to charges that our president is a criminal.

"estroying the Consititution and its specific renumeration and definition of powers to each branch of government can't be overthrown because you are a coward."

Again, nice way to advance the conversation. Destroy the constitution? What about Article II, section 2? The War Powers Act? Somehow arguing that listening in on Osama's calls to the local AQ rep is destroying our constitition just doesnt cut it with me. Does the fact that this has been going on since at least the Cold War mean anything to you? That no court has condemned it? No congressman attacked it until the NYT decided it would make for a good distraction from the Iraqi elections?

"Three hundred thousand troops would have secured a large number of arms sites and closed the border to most infiltrators. "

Arms sites? What in gods name are you talking about? You think listening in on the local Imam talking to Zawahiri is destroying the constitution, but are you suggesting putting a soldier on every corner here is a better idea?

My criticism of the President has more to do with his failure to enter a debate that has been simmering for some time. Our legal system has always divided btw/ the criminal rules of the domestic sphere and the rules of war and foreign intelligence on the international sphere. Slight adjustments were made during the Cold War for state-sponsored acts of foreign espionage, but nothing has tested that line like 9/11. And the tests keep coming, the SCOTUS authorizes habeas for foreign detainees, and the McCain amendment will blead the line. It should also be pointed out that Justice Scalia would have required the government to bring treason charges against the U.S. citizen Hamdi or release him.

The Courts and Congress are replacing the "war" rationale with a "domestic" criteria on an ad hoc basis -- supported in part, no doubt, by the fact that 9/11 is disappearing into the past. Bush should take credit for that, but he can't expect people to willingly depart with their liberties based upon secret programs they've never heard of. And I want to emphasize "ad hoc" -- not based upon a comprehensive examination of the threats and the impositions on civil liberties, but on the waxing and waning of circumstances and Bush's approval numbers.

No, I think the President would have been better served designing a "third way" for these foreign agents of terror. I consider Tom Holsinger's Comment (#9) such a reasonable approach. And I expect to hear more about in 2008.

This is straight up an executive vs legislative conflict of powers. The 4th amendment has no more to do with it than it protects you being searched when you cross the border back into America, citizen or no. Its exactly the same thing, except instead of carrying your data in a lap top you are transmitting it via cellular communication to monitored Al Qaeda entities overseas that Congress empowered the President to fight. The only question is: has the adminstration technically broken any surveylence laws? And even if so, does the Commander in Chiefs Constitutional authority to wage war and defend the country trump the FISA act (or whichever else) when known enemies are communicating with American citizens. For instance, if OBL handed a briefcase across the Mexican border to an American citizen, would the government have the authbority to sieze the briefcase w/o a warrant? Of course they would. This is no different, other than the data is electronic and wireless.

Mark:

This Byron York expose is pretty interesting. I'm still inclined to think its an internal paperwork problem, but the article suggests that some of the pre 9/11 problems have never been fixed:

People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. It is built with an eye to keeping [investigators] in check." And even though the attorney general has the authority in some cases to undertake surveillance immediately, and then seek an emergency warrant, that process is just as cumbersome as the normal way of doing things.

If the courts acts quickly and there is a judicial bypass, it sounds to me like the bottleneck is completely internal.

This is great, the new democratic leadership reponse to the wire tapping allegations: we were told but we didnt understand what they were telling us. Its just like the Iraq intelligence, they were either complicit or lazy or stupid. They seem to be going with the last two. Exactly what does it mean to be on the Intelligence Committee (which the Dems ran in 01,02 when this program was born) if you dont demand answers to questions you have and investigate questionable programs? What the F did Graham and Rockefellar think their job was? To have the NSA spoon feed them tidbits and if they didnt get the full scope of what they were being told write a book about it 10 years later? Please. If there is a story, its about how disengaged, disingenuous, and dispicable the democrats in Congress have acted since 911. God forbid they should have to do somethine requiring political courage.

Mark
It would be helpful if you read some of the documents you sight. I glad you understand illegal acts. Now all you have to do is something about them. I suggest IMPREACH THE PRESIDENT.

Yesterday at the news conference the President explicity argued he had the right to break the law in bypassing the FISA courts yet appeals to pass the Patriot Act. Since he can attribute this to the resolution in force what does he need the Patriot Act for? Because his intent is not to win the war but to attribute power to the President he does not have and for political points. Its a simple case of following what he is doing and not what he is saying.

PD Shaw and Tom Holsinger, while not sharing my personal hatred of the President of my country are on to the correct solution i.e., have the debate in the open to change the laws. That is a strategic choice. As PD Shaw says this is the problem and it is why we are here now:The Courts and Congress are replacing the "war" rationale with a "domestic" criteria on an ad hoc basis -- supported in part, no doubt, by the fact that 9/11 is disappearing into the past. Bush should take credit for that, but he can't expect people to willingly depart with their liberties based upon secret programs they've never heard of. And I want to emphasize "ad hoc" -- not based upon a comprehensive examination of the threats and the impositions on civil liberties, but on the waxing and waning of circumstances and Bush's approval numbers(my italics).

Surely after 2 1/2 years we are in a position to do this. Surely you recognize if the President had asked for this after Sept 11, 2001 he would have gotten it by unanimous consent. That is why I think you are a coward you do not even want to have the debate

Try reading his from the intel-dump.
http://www.intel-dump.com/archives/archive_2005_12_18-2005_12_24.shtml#1135046627

But I am not going to be persuaded by talk of impeaching the President.

Is anyone really surprised that where there is a line drawn on an issue of intelligence gathering, Bush is going to stand directly on the line. My reading of Prof. Kerr's opinion (#24) is that Bush has got his toes one side of the line, and his heals on the other.

Its a murky area of law with many overlapping legal issues and what appears to be new technology. Its up to Congress now to clarify the law if they dissaprove of what the President is doing.

Robert, you flat out dont know what you are talking about. Bush's argument is that his constitutional powers under Article II as commander in chief trump Congresses statutory prohibitions.

cont-

Which is true. We are talking about monitoring the conversations of an organization Congress declared war on in 2001 with individuals in America. If the Japanese or Germans were communicating with people on American soil in 1942 the president would have the authority to listen in on those as well. Im simply flabergasted that the very simple core of this argument is being lost on so many people: if Osama Bin Ladin makes a phone call from Pakistan to Manhattan, the president doesnt have to go find a judge in order to listen in.