And now for my final bit of fun. can a president who believes he has the constitutional authority to use intelligence officers to intercept communications have the mens rea to be a criminal.
"Oh, a wise guy, eh?" -- Three Stooges. Well, at least you're arguing on the facts in the record. I reread the entire statutory construction, to try to satisfy myself as to what the hell is going on with the law, and I think that Congress did not grant as much power as I previously believed. So, yes, I'm backing away from my original reading of the situation, after more carefully reading the law. I also made a rather large error in legal interpretation (good thing I don't work for the administration, because I think they've made the same error that I did). The Foreign Intelligence Surveillance Court "is" an Article III Court, which means that it's independent of the Executive Branch. Thus, the President can't overrule it, and thus no silent coup has occurred. So, I apologize for the error. Anyway... Pub. Law 107-40 discusses finding the terrorists and their aids in the context of who attacked the U.S., rather than finding those who might be planning a future attack. My reason for this interpretation is that 107-40 expressly rests on the War Powers Resolution, 50 U.S.C. 1541 as the statutory authority for the use of military force, and 1541 is focused on "introducing military forces into hostilities." And, that isn't the same thing as authority to eavesdrop on U.S. citizens without a court order, in my view -- although reasonable minds may differ. I think that if Congress had wanted the President to have unfettered authority, that they would have extended Pub. Law 107-40 to expressly include domestic agents of foreign powers -- something that 50 U.S.C. 1801 expressly prohibits. On the issue of inherent authority to protect the U.S., the President must take the oath of Art. II, Section 1, to "preserve, protect and defend the Constitution," but he is ALSO bound by Art. II, Section 3, to "take Care that the Laws be faithfully executed." My reading of the above is that the President is not above the statutory law enacted by Congress, because (1) the Constitution provides that the President must either sign or veto every law, and (2), the Constitution provides a means by which Congress can override the President's vetoes. Thus, I believe that the President is bound by almost every word of the U.S. Code and Code of Federal Regulations, unless there is some express contradiction in the Constitution itself. In short, I don't believe that the Executive Branch has much "inherent" authority, which exists apart from that granted by Congress. For example, the courts have determined to defer to "any reasonable interpretation of statutory construction," by the Executive Branch, where authority is delegated by Congress to a particular agency, unless the statute is "unambiguous on its face, in which case, the statute controls." (Chevron test). And, here 50 U.S.C. 1801 is really very clear. NO INTELLIGENCE GATHERING OF U.S. CITIZENS WITHOUT A WARRANT issued by the Foreign Intelligence Surveillance Court. So, while I think that Mr. Bush will certainly argue inherent authority, I don't know that he will win the argument. I think it's a pretty close call, and frankly, I don't want him to win the argument, because I think it's bad for the nation as a legal doctrine, although I also don't think that Bush deserves impeachment for his actions. I just think that Congress needs to clarify the President's powers in this terrorist business, and that the President needs to stop violating the law until Congress does so. Lots of blame to go around. And, I also agree, that the Dems are trying to make hey while the sun don't shine, when they're as much a part of this problem as the Reps are. PS, re mens rea: The statute requires the Attorney General to certify under oath that "the electronic surveillance is solely directed at (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers,..." So, the question will be upon what facts did the A.G. rely on to make the certification? And, where did those facts come from, and who provided them? Everyone will point the finger and say someone else produced bad intelligence (just like with the Iraq invasion). But, I think that this excuse is gonna wear a bit thin if it's used again after so many new intelligence gathering policies have been put in place to make sure that what happend in Iraq with the WMDs wouldn't happen again. Sure, Bush can say, "The dog ate my homework." And, being that it's a Republican controlled Congress, they'll probably go along and not impeach. But, Bush has been running around very loudly proclaiming that he's doing the right thing and that he knows what he's doing, etc., so frankly, I think the "cat's out of the bag," and that he's gonna have trouble back tracking if it's determined that he violated the statute without lawful authority. Of course, the Supreme Court is now much more conservative than before, so Bush has that going for him, too. But, as of this evening, I'm of the opinion that Mr. President is violating the law. Feel free to convince me otherwise.
Diminished capacity is a minority jursidiction rule. Under federal law the defendant must show a mental disease that makes it impossible for him/her to know right from wrong or to understand the nature and quality of his actions. Hmmm...come to think of it, that may apply to Bush, too! LOL! Nah, I love da Pres. Really I do!
Facts about FISA act: http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001809----000-.html ç 1809. Criminal sanctions Release date: 2005-03-17 (a) Prohibited activities A person is guilty of an offense if he intentionallyââ¬â (1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute. (b) Defense It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction. (c) Penalties An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both. (d) Federal jurisdiction There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed. -------------------------- Note the terms in (a) & (b). It is illegal to conduct surveillance "under color of law" except as authorized by statute. Part (b) specifies conditions: search warrant or court order of a competent jurisdiction, which in many cases is the FISA court. Wiretapping after getting a positive opinion from your hand-picked Attorney General---who just happened to previously be your own counsel, and having this opinion validated by no other court with legal jurisdiction, appears to be precisely surveillance "under color of law" which is prohibited, in explicit "black-letter law", and is a Federal criminal offense. The argument that surveillance "in time of war" also has been explicitly addressed by statute: http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001811----000-.html ç 1811. Authorization during time of war Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress. ------------------------------------- There is a provision for when "we're at war". Exactly fifteen days---and no more---following an explicit declaration of war by Congress. Summary: all of the Administration's actions and arguments and situations have been considered, and explicitly denounced by the specific text of Federal statute. This is a Federal crime, as indicated by statute.
Yup, so is defacing a bank note, something the pres has done on camera even. Where's the outrage? Interesting stuff kjent1, cant disagree with that, or Dr chaos' points.
I saw a press conference with Gen. Michael Hayden last night (former head of the NSA) on the issue of communications intercepts. He made the case that, under the 4th amendment, all the president really has to do is show that what he ordered was 'reasonable'. Further, he said that the general guidelines for these intercepts are: 1) Communication must occur between a domestic and a foreign party...AND...there must be some connection to al-Queda. 2) If communications are inadvertently intercepted that do not meet condition 1, they must be expunged. Take that with however many grains of salt you think appropriate... saxon
kj I am not going to be able to say more than what I have already said. Wider grant of authority from congress regarding al queda and larger inherent authority. However, I would like to see an investigation. I would be damn surprised if they stopped at al queda intercepts. In which case people will need to be punished. Peraps including GWB. If they did stop at al queda connections I will have more respect for GWB.