Politics as (un)usual: Now discussing the Dubai Ports World Deal

I notice that yet again you have completely avoided answering the question.

The question was

You can't answer a question that starts with "why" by simply saying "That's different" (which is what your response continually boils down to). "Why" asks for the reasons behind the action, something that you have not even tried to answer.

So, answer the question, and stop trying to avoid it. The answer has a very direct bearing on my response to you on your points. You have no reason to avoid answering it like this, unless of course you are afraid that your answer would invalidate your entire view.

Kimball Kinnison

 

No, KK, you are simply asking the same question, just using different phrasing. No matter how you try to spin it, you still fail to weigh the difference between thought and action.

Further, you are expecting me to be able to answer a motivational question that is only known to that administration - how am I plausibly to know what they were *actually* thinking? What I am arguing here is based upon the appearance of the action as well as the qualitative differences between the present administration and past administrations, and making a logical inference based upon the reactions of those involved. I recognize that I might be mistaken (an apparent attitudinal difference between you and I), which is why I am not making absolute claims (deductive), but probabilistic claims (inductive).

 

DM

The same mentality existed during the 1990s, when people wished to shrug off the '93 WTC bombings, African embassy bombings, USS Cole, the Khobar towers and treat it as a police matter instead of the war that it is. The terrorists believe it so, and they depend on such sentiment to further their goals.

While this isn?t the first time on these boards, by starting with the 1990s you ignore terrorist acts that happened before the 93 WTC bombings (such as Lebanon in 83), as well as incidents that have happened since 9/11, which occured under the watch of our current President:

http://www.pbs.org/wgbh/pages/frontline/shows/target/etc/cron.html
http://www.infoplease.com/ipa/A0001454.html
http://en.wikipedia.org/wiki/Terrorist_attacks


treat it as a police matter instead of the war that it is...There is much more at stake here, including the nightmare scenario of terrorists obtaining bona fide WMDs.

What does that mean then, the ?war on terror?? How do we prevent terrorists from obtaining WMDs? In other words, how should we be fighting the ?war on terror? and with whom should we be fighting?

There is no doubt in my mind that we need to be serious in confronting those who seek to harm us, but I wonder if the slogan ?war on terror? is used as demagoguery in a manner in which President Eisenhower clearly warned us against.

 

Translation: you don't care about whether it is a legitimate constitutional dispute, you only care about what helps achieve your desired political end.

The only rationale for previous administrations to repeatedly state that they reserved the right to exercise that authority is to reiterate the claim that the inherently have that authority in the first place. If they have that authority, then there is nothing improper about the executive exercising that authority.

From your comments, you completely ignore the question of whether the Executive actually has that authority (which is what every administration since the implementation of FISA has claimed). Instead, you ingore the questions and simply respond with the claim "That's different." It is not different.

There is no effective difference between claiming that you have a legitimate authority and acting under that claim. If Bush legitimately has that authority, then his actions as they have been outlined and described by people on both sides of the aisle are legitimate, and not in any way an impeachable offense, nor are they inappropriate. At the same time, the only entitiy with the authority to decide the authority question is the Supreme Court.

But you don't care about that, do you? You completely ignore the question of whether it is a legitimate Executive power (as maintained by every administration since FISA), because it simply doesn't support your own dislike for Bush. It's differnet in your mind only. Until the legitimate question of constitutional authority is answered by the proper entity, there is no real basis to insist that Bush's actions were improper. Once you acknowledge that, all you have left are your own biases.

Kimball Kinnison

 

Perhaps I missed it, but when did previous administrations claim that they had the authority to wiretap without the approval of the FISC? And even if they claimed such authority, were they right?

Until the legitimate question of constitutional authority is answered by the proper entity, there is no real basis to insist that Bush's actions were improper.

Then every thread that contains any sort of speculation and discussion that has not received an official resolution should be locked. No discussing the 2006 election since it has yet to be resolved. Since the nuclear situation in Iran is unresolved, I would recommend that all discussion pertaining to it be stopped until then. Since Roe v. Wade was decided many years ago, the Abortion thread should be locked. After all, since the question of constitutional authority has been answered by the proper entity, there is no real basis to insist that abortion is improper.

 

O.K. I have a few questions, and hyperbole aside, I figured I'd ask em in a clear manner before I head out for the afternoon:

As stated earlier, when and how exactly did previous administrations claim they had the authority to wiretap without the approval of the FISC?

My understanding is that what Bush has ordered is banned under FISA, but he is claiming that the Consitution gives him the authority to do this (that it falls under his duties as Commander In Chief)? Is this accurate? Does the Constitution give him the authority, and if so, how? Does the Senate Resolution (I forget the number) that authorized the use of force against Al Queda give him the authority?

I'll probably have follow up questions/comments because, again, while I've gathered some information regarding this matter, the whole discussion hasn't been so clear, at least to me.

 

Please don't even try to front that you know what I am actually saying. Further, your arrogance astounds me that the only *possible* interpretation is the one offered by you. That's ridiculous hubris, KK.

If you cannot bear to address my arguments as I've proposed them, without trying to create a straw man, I have no time or patience for you.

 

I think the second quote in my sig is would apply well to this conversation.

 

My understanding is that what Bush has ordered is banned under FISA, but he is claiming that the Consitution gives him the authority to do this (that it falls under his duties as Commander In Chief)? Is this accurate? Does the Constitution give him the authority, and if so, how? Does the Senate Resolution (I forget the number) that authorized the use of force against Al Queda give him the authority?

I think you just addressed the basis for this entire controversy here DS..

"What Bush ordered" is not explicitly banned under FISA. FISA was set up in the late 70's specifically because intelligence matters couldn't be treated with standard law enforcement procedures. I think everyone understands this, and it's never been an issue because the focus has been largely unknown.

FISA covers requests for "intelligence warrants" for targets within the US. However, FISA doesn't apply to targets outside of the US.

That's why Congress agreed to the notification requirements, etc..

But what if a intercept starts outside of the US, but leads inside of the US? What has to happen?

Historically, there has been an exception that allows the intercept to be followed to its conclusion, even if it leads to a US citizen, but it's never been definitively addressed.

Previous administrations have always held this same option, but it doesn't seem to have been used on such a large scale. (Maybe Clinton might have claimed the exception on a single subject during the 1st WTC attack, for example, who knows?)

Could Bush have ordered the intercepts against al Qaeda, and then when some of them lead back into the US, gone to the FISA court just to cover his butt? Sure, but it was never a requirement to do so, and as yet, we don't know how the intercepts actually unfolded.

That's the current issue.

Bush is claiming that since the US is in the middle of a war, as Commander-in-Chief, he was justified in directing the NSA to undertake this operation. (The NSA is an executive agency)

Bush's opponents are claiming that the war is undefined, and this could potentially be used as a rationale to be directed against anyone.

Again, the issue of if this is justified or not has never been addressed.

Personally, I think if it wasn't illegal when Bush ordered it, he isn't going to be charged with a crime. Congress can certainly re-examine the scope, or bring it to the Supreme Court to get a ruling on how it can be used in the future.

 

But what if a intercept starts outside of the US, but leads inside of the US? What has to happen?

But Mr44, that is not what happened here. In this case, the intelligence agencies got a hold of phone numbers that were in the United States (through intercepts, captured computer files, etc) and tapped those numbers. So FISA would apply.

 

Thank you for your responses gentlemen. I'll give it some thought and respond when time permits.

 

But Mr44, that is not what happened here. In this case, the intelligence agencies got a hold of phone numbers that were in the United States (through intercepts, captured computer files, etc) and tapped those numbers. So FISA would apply.

Right. The data was captured abroad, either from Afghanistan or from al Qaeda sources and some lead into the US, it all falls under that grey area.

 

No, the telephone numbers were captured outside the U.S.

The Bush administration then authorizes those telephone numbers (in the U.S.) to be tapped.

That is not a grey area in FISA.

 

I never said my interpretation is the only possible one. I specifically asked you to provide other possible ones, something you have repeatedly refused to do. That is a big difference.

If you are unwilling to present any other possible interpretations, then what other conclusions should I draw? Either you are being lazy, or you cannot find any other ones.

If you can't find any other ones, then you really have no basis to ignore my interpretation. What other reasonable interpretations are there to explain why previous administrations have repeatedly reserved the right to exercise this authority outside of FISA, unless they thought that such actions might one day be necessary? If you will not provide any other reasonable interpretations, you are effectively conceeding that you cannot find any, or you are demonstrating that you have no interest whatsoever in actually discussion the question of the authority, which is at the core of the entire matter.

Kimball Kinnison

 

In the end I think the Constitutionality of these wiretaps *should* probably be decided by the Supreme Court. Jumping into the debate on this issue: is Congress the only capable body that can bring this to the Supreme Court? I would think that it would also be possible that the SC would decide on this issue because of a defendant who was arrested and is being tried as a result of this wiretapping using the issue as grounds for appeal.

But please, correct me if I'm wrong.

 

I would think that it would also be possible that the SC would decide on this issue because of a defendant who was arrested and is being tried as a result of this wiretapping using the issue as grounds for appeal.


I believe that is the only way it can get to the Supreme Court as I have never heard of a member of Congress filing suit against the President.

 

From Wikipedia:



At the beginning of 2003, the United States and the United Kingdom administrations both claimed that there was absolutely no doubt that Iraq had weapons of mass destruction and was developing more. The intelligence services of some other countries also assessed that Iraq still had covert WMD programs.

Some people claim that Iraq broke the terms of the ceasefire between 1991 and 1998. In addition to being forbidden to possess or develop WMD, Iraq was also bound to cooperate with the inspectors from the UN sent to verify destruction of the WMD programs. These people claim that the UNSCOM commission did not have the full cooperation of the Iraqi government. There is dispute about whether Iraq still had WMD programs after 1998 and whether its cooperation with the United Nations Monitoring, Verification and Inspection Commission (UNMOVIC) was complete. UN Chief Weapons Inspector said in January 2003 that Iraq has, "...not genuinely accepted U.N. resolutions demanding that it disarm." On 7 March, in an address to the Security Council, Hans Blix, the head of UNMOVIC, appeared to take a more positive view describing current Iraqi level of cooperation as "active or even proactive". Attributing increased Iraqi initiative to "outside pressure" he stated his estimate that it would take several months for all outstanding WMD issues to be resolved. United States officials treated Blix's report dismissively.

 

JF, again we're saying the same thing, I don't quite get how your interpretation is different, except that you're applying some sort of finality to your conclusion.

These calls/numbers/data transmissions, etc were intercepted/collected in Afghanistan and abroad. Some of these calls/numbers/data transmissions terminated inside of the US.

Does the point of origin, or the point of termination determine if something qualifies as either domestic or foreign intelligence?

Traditionally, if a call originates outside of the US, it doesn't fall under domestic requirements, and the exception as it has existed has allowed the agency to follow through even if it continues on inside the US.

If the US is at war with a hostile power, does the President have the authority as Commander in Chief to direct an executive agency to follow through with anything relating to the hostility? That authority has been reserved by every other President before Bush, even if it hasn't been used in recent times.

Again, why would previous Presidents, from both parties, reserve the same authority, if they didn't think a situation might develop where it would be needed?

You can't say for sure that it is covered under something like FISA because it hasn't been determined.

I believe that is the only way it can get to the Supreme Court as I have never heard of a member of Congress filing suit against the President.

During Watergate, the Senate subpoenaed the White House tapes, which ultimately ended up in the Supreme Court, but in that case Nixon was actively impeding an investigation. In this case, nothing criminal has been initiated.

 

DarthTunick, I never disputed that intel agencies may have thought Iraq had WMD (but no nuclear). I disputed that they thought it was a threat. After all, many countries have WMD, but we don't believe them to be a threat.


JF, again we're saying the same thing, I don't quite get how your interpretation is different, except that you're applying some sort of finality to your conclusion.

These calls/numbers/data transmissions, etc were intercepted/collected in Afghanistan and abroad. Some of these calls/numbers/data transmissions terminated inside of the US.

This is what I am disputing. What happenend was this method was one of a handful that discovered telephone numbers in the U.S. These numbers were then tapped. This means calls originating in the U.S. were tapped.


Does the point of origin, or the point of termination determine if something qualifies as either domestic or foreign intelligence?

Traditionally, if a call originates outside of the US, it doesn't fall under domestic requirements, and the exception as it has existed has allowed the agency to follow through even if it continues on inside the US.

I realize that, but once again, the calls in dispute are ones originating inside the U.S.

If the US is at war with a hostile power, does the President have the authority as Commander in Chief to direct an executive agency to follow through with anything relating to the hostility? That authority has been reserved by every other President before Bush, even if it hasn't been used in recent times.

Its time to quote from the Constitution:

Presidential Powers in regard to the military (Article II Section 2):

The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States

Congressional Powers in regard to the military (Article I Section 8):

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

It appears to me that the Congress has far more powers over the military than you give it credit for. It makes the rules, and the President can not over rule them. As Commander in Chief he still must follow the laws laid out for the military by Congress, who, as you can see, have the power to regulate the military (i.e. make rules for the government and regulation of the land and naval forces).

 

I agree with all of what you posted above, I just think our conclusions are different.

For example, your last passage could easily apply to what I'm illustrating:

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

Congress agreed when the NSA was put under the Department of Defense, making the President the top of its chain of command.

Congress itself created the intelligence reporting rules, and it was Congress who determined that only specific members were required to be informed instead of the general body.

It was Congress who agreed to the FISA requirements, and who allowed the exceptions to the above.

As it stands, it looks like Bush has met all of the above requirements. That's why I provided my "store owner" example earlier in this thread. It was Congress who gave out the keys to the store, and then never took them back. Just because some members of Congress don't agree that the President should use them now, doesn't nullify their existence, especially in an ex post facto sense.

 

Mr44, Congress said no eavesdropping on Americans without warrents in FISA.

The President eavesdropped on Americans without a warrent sighting his inherent Constitutional powers and the Authorization of Military Force giving him the power to do so.

I think it is a pretty clear cut case of the President breaking the law as the FISA requirements were not met.

 

There is at least some substantial evidence that the President's authority does extend to the use of warrantless wiretaps for national security purposes.

There is only one published opinion from the Foreign Intelligence Surveillance Court of Review (the court holding appelate authority over intelligence operations). In that opinion, it states that:

It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith?s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President?s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President?s constitutional power. The question before us is the reverse, does FISA amplify the President?s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government?s contention that FISA searches are constitutionally reasonable.

The last sentence (after the part in blue) relates to the question of whether the surveillance data met the standards for obtaining a warrant for purposes of a criminal case.

It is important to note that Truong was decided the same year that FISA was passed, but in the matter of presidential authority, it is one of the last statements on the matter. Since FISA imposed additional limitations on the President's powers, it has not actually been put to the test. It is, however, clear that prior to the passing of FISA, the President was considered by the courts to have an inherent power to conduct warrantless wiretaps. Because of that, coupled with the repeated statements from multiple administrations that FISA could not limit inherent presidential powers, the constitutionality of the FISA provisions relating to those wiretaps is still very much in question, as I have been saying.

Kimball Kinnison

 

I never said my interpretation is the only possible one. I specifically asked you to provide other possible ones, something you have repeatedly refused to do. That is a big difference.

If you are unwilling to present any other possible interpretations, then what other conclusions should I draw? Either you are being lazy, or you cannot find any other ones.

False dichotomy - I have already stated that it would be inappropriate for me to make assumptions about why previous administrations would make such statements, simply because I do not possess the prescience to state definitively what causal factors were important to them. They may have adopted something akin to what you proposed, but likely there is a key difference, as they *explicitly behaved differently* than the present administration. You seem to be having a real difficulty grasping the concept that we likely have two different paradigms at work here. You repeatedly insist that there is no difference between talk and action, saying that they have the same motivational and legal structure - this is nonsense. That's like insisting that red and yellow are identical because they are both colors and have (roughly) similar wavelengths. You have yet to address this implicit difference (to spell it out explicitly: Previous administrations talked about foregoing FISA but did not, while the present administration ignored FISA). Please tell me you can see that there is an implicit and explicit difference between talk and action.

If you can't find any other ones, then you really have no basis to ignore my interpretation. What other reasonable interpretations are there to explain why previous administrations have repeatedly reserved the right to exercise this authority outside of FISA, unless they thought that such actions might one day be necessary? If you will not provide any other reasonable interpretations, you are effectively conceeding that you cannot find any, or you are demonstrating that you have no interest whatsoever in actually discussion the question of the authority, which is at the core of the entire matter.

But you are ignoring a fundamental issue, KK, which is that myriad motivations exist for saying one thing and doing another. Saying that one "reserves the right to do otherwise" but toeing the line speaks volumes: the concern is about appearance, not actual conduct. Ignoring the line entirely (on top of the 500 signing statements) reveals a fundamental difference in governing philosophy.

This is pointless - you are behaving precisely as I predicted you would. This does come down to our underlying philosophies, which we have repeatedly demonstrated to be fundamentally at odds. You champion a "letter of the law" interpretation, but ignore the underlying (and, IMHO more important) spirit of the law.

 

But, the Bush Administration did not ignore FISA. In fact, it has followed FISA on numerous occasions. It has gotten FISA warrants for many operations. It is only in a certain subset of operations in which it did not operate within the FISA framework.

Your "it would be inappropriate for me to make assumptions" is simply a dodge. Go ahead and speculate. If you can provide me with any plausible reason at all that fits with the previous administrations' statements, I'll go away and never touch this thread again.

The fact is that every court ruling before FISA claimed that it was an inherent power of the Executive, and the only ruling on the matter since FISA did not touch that issue (focusing instead on whether a FISA warrant met the constitutional provisions for to be used in court for criminal evidence).

In fact, you have not shown any real opposition to speculating already, seeing as if previous administrations had run some sort of program like this, it would likely still be classified, so you probably wouldn't know about it right now. You really don't have a basis for comparison to say that Bush's actions with regards to FISA are different from previous administrations. Before the current program was leaked, for all appearances Bush was acting like previous administrations on the matter of FISA. Seeing as there have been no leaks of such programs under previous administrations, you simply don't know if they did the same sort of thing. They could have performed warrantless wiretaps, and it simply wasn't leaked, or they didn't. You are simply assuming that they didn't perform them.

So, since you don't seem adverse to speculating about previous administrations' actions, why don't you just go ahead and try to come up with some sort of plausible reason why they would consistently reaffirm that FISA could not limit their authority to perform this sort of wiretap?

I can understand if you are afraid to answer that question, since the evidence is rather stacked against your comments, unless you start making certain assumptions about both the Bush administration and previous administrations.

Kimball Kinnison

 

But, the Bush Administration did not ignore FISA. In fact, it has followed FISA on numerous occasions. It has gotten FISA warrants for many operations. It is only in a certain subset of operations in which it did not operate within the FISA framework.

Which happened to cause significant blowback because of perceived abuses. I have no doubts that FISA was followed on numerous instances - the fact of the matter is that in these particular cases it was not, and the 'justifications' for ignoring the process seem to fall short, in light of the historical acquiescence of the FISA court to the administrations in power.

Your "it would be inappropriate for me to make assumptions" is simply a dodge. Go ahead and speculate. If you can provide me with any plausible reason at all that fits with the previous administrations' statements, I'll go away and never touch this thread again.

Maintainence of appearance - the whole "I could do otherwise, but I won't" thing. The "I don't want to fight a battle I might not win" thing. There are myriad possible explanations for this. For God's sake, KK, don't be so thick - how often have individuals at all levels of society made statements trying to demonstrate that they have more power and authority than they actually might?

The fact is that every court ruling before FISA claimed that it was an inherent power of the Executive, and the only ruling on the matter since FISA did not touch that issue (focusing instead on whether a FISA warrant met the constitutional provisions for to be used in court for criminal evidence).

In fact, you have not shown any real opposition to speculating already, seeing as if previous administrations had run some sort of program like this, it would likely still be classified, so you probably wouldn't know about it right now. You really don't have a basis for comparison to say that Bush's actions with regards to FISA are different from previous administrations. Before the current program was leaked, for all appearances Bush was acting like previous administrations on the matter of FISA. Seeing as there have been no leaks of such programs under previous administrations, you simply don't know if they did the same sort of thing. They could have performed warrantless wiretaps, and it simply wasn't leaked, or they didn't. You are simply assuming that they didn't perform them.

I will happily concede that this might have happened. But that doesn't bolster your argument either; they would face the same questions of legality/illegality being raised here.

So, since you don't seem adverse to speculating about previous administrations' actions, why don't you just go ahead and try to come up with some sort of plausible reason why they would consistently reaffirm that FISA could not limit their authority to perform this sort of wiretap?

I can understand if you are afraid to answer that question, since the evidence is rather stacked against your comments, unless you start making certain assumptions about both the Bush administration and previous administrations.

Yeah, I'm shaking in my boots here, KK.

How much of politics is appearance? How much of governance is the presentation? The simple fact of the matter is that all administrations have engaged in a variety of feints and dodges, brinksmanship, and the manipulation of appearance. By maintaining a strong front, administrations hope to maintain the perception that they are powerful, competent, and able to govern. That's simple social psychology and realpolitik.

Regardless, we're done here. I have neither the time nor the inclination to listen to another variation of "But other adminstrations did the same thing."