Balkinization  

Wednesday, January 24, 2007

Bickelian or Bully?

JB

Partly in response to my earlier post, Eric Posner and Adrian Vermeule make the intriguing argument that the Bush Administration has acted entirely appropriately by avoiding judicial determinations that would rebuke it for its domestic surveillance program and its treatment of Jose Padilla. The Bush Administation, they argue, has only acted according to the "passive virtues" that Yale Law professor Alexander Bickel famously argued were particularly praiseworthy behavior for courts.
On this view, the administration is acting in the best traditions of Bickel, Jackson and the Court itself. By avoiding a final test of its power to detain citizens like Padilla, or to engage in warrantless surveillance, the administration avoids creating precedent when the political winds are blowing against it; that sort of precedent would lie around like a loaded gun to be used against the executive in the future. Mooting the issues leaves the law of executive emergency powers in the state of twilight uncertainty that Jackson praised in Korematsu, and allows the administration to fight another day in better circumstances -- the same plan that the Court followed after Reconstruction and after Brown v. Board. What's sauce for the judicial goose is sauce for the executive gander.

If the Bush Administration had behaved as a Bickelian court, it would be more deserving of praise. The problem with the argument, however, is that it has not.

A Bickelian court estimates the likely public and institutional reaction if it acts in a certain way, and, if the situation looks sufficiently ominous, it does not act in the first place, or, if it acts at all, does so only in a limited way on procedural grounds. It does not state that it will strike something down in litigation involving great public controversy and then, faced with mounting criticism from public opinion and the political branches, suddenly announce that its previous decision was inoperative. To do that would diminish the Court's political capital and squander its credibility.

In 1956, for example, the Court in Naim v. Naim did not boldly announce that laws prohibiting interracial marriage violated Brown v. Board of Education, and then, faced with the threat of outright disobedience by the Virginia Supreme Court, rescind its previous interpretation of the Equal Protection Clause. Rather, it avoided taking a position on the merits, eventually dismissing the case for want of a substantial federal question (which was, technically speaking, not true.). It then waited eleven years to strike down Virginia's law in Loving v. Virginia in 1967, when public sentiment was more favorably disposed.

Bickel's point was that discretion is often the better part of valor for an institution that, unlike the Executive or Congress, has neither the power of the sword nor the purse; hence the Court should sometimes not act at all, or act only through indirection.

If the Bush Administration had acted like a Bickelian court, it would have gathered its legal and political advisors together and asked, "if we engage in domestic surveillance of American citizens in violation of FISA, or if we throw an American citizen in a military prison and deny him basic Bill of Rights protections, will we likely face undesirable consequences that would hamper the Executive's ability to prosecute the War on Terror in the future?" If the answer to that question is yes, then a Bickelian executive would not have violated FISA in the first place and it would have indicted Padilla in the criminal justice system to begin with rather than denying him Bill of Rights protections and abusing him through illegal interrogation methods.

Instead, the Bush Administration ignored FISA and held Padilla as an enemy combatant for several years, making aggressive and unreasonable claims about its own powers, and then, when its bluff was called, it backed away from its prior actions. But in the meantime the Administration illegally invaded the privacy of countless numbers of persons in the United States and Padilla lost three years of his life in military prisons; indeed recent reports suggest that his mental condition has been so impaired by the interrogation methods used on him that he may not be competent to stand trial. This behavior is the very opposite of Bickelian prudence, and it is the sort of behavior most likely to undermine the Executive's credibility as "tak[ing] care that the laws be faithfully executed." A Bickelian court is not a bully, aggressively touting its own power and trampling on people's rights willy-nilly. The Bush Administration has proved time and again that it is.


Comments:

Prof. Balkin said [from the post]:

Bickel's point was that discretion is often the better part of valor for an institution that, unlike the Executive or Congress, has neither the power of the sword nor the purse; hence the Court should sometimes not act at all, or act only through indirection....

And thus not reveal that their guns were unloaded. The aim of a bluff is not to be called. From a tactical standpoint, you loose your credibility and prove the bluff (and your powerlessness) if you provoke confrontation and then back down.

If the Bush Administration had acted like a Bickelian court, it would have gathered its legal and political advisors together and asked, "if we engage in domestic surveillance of American citizens in violation of FISA, or if we throw an American citizen in a military prison and deny him basic Bill of Rights protections, will we likely face undesirable consequences that would hamper the Executive's ability to prosecute the War on Terror in the future?" If the answer to that question is yes, then a Bickelian executive would not have violated FISA in the first place and it would have indicted Padilla in the criminal justice system to begin with rather than denying him Bill of Rights protections and abusing him through illegal interrogation methods.

Indeed. Perhaps while saying they reserve the right to do so in the future (or issuing signing statements). They did the latter, but their BPD got the best of them.

Cheers,
 

The argument of Posner and Vermeule is fundamentally a non sequitur. They argue that because courts sometimes strain to avoid resolving issues that might well be justiciable (Which itself is a questionable proposition. Do they seriously hold up Korematsu as a laudable outcome?) this somehow excuses bad-faith tactics on the part of the executive to avoid review of its own lawbreaking.

I put my faith in the statement the authors make but proceed to disregard: " In any event, the executive branch is no ordinary private litigant, and has higher obligations." In fact, presidents have a high constitutional duty to "see that the laws be faithfully executed." Even if a president thinks a law is unconstitutional, he has an affirmative obligation to carry that argument in court.

The Bush administration is adopting the legal strategy of a fugitive, and deserves the most severe consequences for its contempt of both Congress and the courts.

Now, returning to the authors' "Bickelian" court, and how that concept relates to our current predicament:

In the most recent action of the Supreme Court with respect to Padilla, three justices from across the spectrum -- Kennedy, Roberts and Stevens -- sent a polite but clear message that the courts will not stand for being jerked around any further by the government. Their rebuke with velvet gloves followed a rebuke delivered with mailed fist by Judge Luttig.

In the FISA controversy, despite the administration's phony rhetoric about its claim to magical powers under Article II, the President's lawyers have been avoiding making that constitutional argument in court all along. If Bush's constitutional claim were actually framed for judicial review in a way that could not be ducked, I continue to believe that he would lose 8-1. However, I have always feared that Roberts and his fellow conservatives would strain to avoid reaching that unpleasant question -- perhaps even employing what the authors here refer to as "dubious procedural rulings to avoid having to pronounce on the legality."

Still, I retain hope that today's court would not do this.

As I have said before in this context:
Mister President, tell it to the judge.
 

What's sauce for the judicial goose is sauce for the executive gander.

To argue that the President should act like a "Bickelian court" is to misunderstand the fundamentally different roles of the two branches. The duty of the court is limited to adjudicating the cases and controversies brought before them by others and not to go further than necessary. In stark contrast, the President's duty is to affirmatively seek out and address the country's problems with the only limits being his or her constitutional powers.

I agree with Professor Balkin's point that Mr. Bush has hardly acted passively in matters of war policy. However, I disagree that acting passively when your nation is under attack is a praiseworthy trait in a President. History is littered with the bodies of Americans who died because a President acted passively in the face of a looming enemy threat or even while under ongoing attack by the enemy, the ongoing terrorist attacks on US citizens around the world throughout the 90s and up to 9/11 being just the latest case.

The fact that a President may take actions which exceed his authority during wartime to protect the nation does not recommend acting passively and doing nothing.

Since the United States went to war after 9/11 and started to defend itself, we have largely destroyed the al Qaeda network, denied the enemy nearly any sanctuary and stopped dozens to planned attacks on US interests around the world. As a result, the enemy has not been able to launch a single attack on US citizens outside of the Iraq and Afghan war zones.

In contrast with that success, Mr. Bush's acts which are alleged to exceed his authority are historically negligible. Of the acts of Mr. Bush which Professor Balkin allege exceed presidential authority, only the detention of US citizen Padilla as an enemy combatant can be fairly said to fall into that category. While important to Mr. Padilla, this temporary detention of a single probable al Qaeda agent is small beans compared to Lincoln's suspension of habeas corpus or FDR's detention of tens of thousands of US citizens for the duration of WWII.

Nothing about the reported scope of NSA's surveillance of enemy international telecommunications into and out of this country exceeds the Presidents Article II CiC power to collect intelligence on the enemy nor does any provision of Article I provide Congress with the power to decide which enemy communications may not be surveilled for intelligence gathering.

When viewing the acts of any President, context and historical proportion are necessary tools to perform the task rationally and without partisan bias.
 

"When viewing the acts of any President, context and historical proportion are necessary tools to perform the task rationally and without partisan bias."

Insert your own snark here.
 

Bart DePalma's question-begging is risible.

He claims FISA is unconstitutional. Yet the whole point of this post is that the President cowers from making that claim in court.
 

De Palma... As a result, the enemy has not been able to launch a single attack on US citizens outside of the Iraq and Afghan war zones.




2002
June 14, Karachi, Pakistan: bomb exploded outside American consulate in Karachi, Pakistan, killing 12. Linked to al-Qaeda.

2003
May 12, Riyadh, Saudi Arabia: suicide bombers killed 34, including 8 Americans, at housing compounds for Westerners. Al-Qaeda suspected.

2004
May 29–31, Riyadh, Saudi Arabia: terrorists attack the offices of a Saudi oil company in Khobar, Saudi Arabia, take foreign oil workers hostage in a nearby residential compound, leaving 22 people dead including one American.
June 11–19, Riyadh, Saudi Arabia: terrorists kidnap and execute Paul Johnson Jr., an American, in Riyadh, Saudi Arabia. 2 other Americans and BBC cameraman killed by gun attacks.
Dec. 6, Jeddah, Saudi Arabia: terrorists storm the U.S. consulate, killing 5 consulate employees. 4 terrorists were killed by Saudi security.

2005
Nov. 9, Amman, Jordan: Suicide bombers hit 3 American hotels, Radisson, Grand Hyatt, and Days Inn, in Amman, Jordan, killing 57. Al-Qaeda claimed responsibility.


*cough* idiot *cough*
 

anne:

As you can see from my previous posts ranking presidents who served during my lifetime, I have no problem pointing out the positive and negative acts and omissions of each regardless of their party. So far as Mr. Bush goes, I ranked him blow average overall in that list.

When I post about policy, I am addressing the merits of the policy itself without regard to its partisan origin. I have no problem at all with a potential President Hillary Clinton exercising the same authority and if a GOP congress attempts to unconstitutionally limit Mrs. Clinton's power through FISA I will call them on it.
 

jao:

We have had this discussion before and I am not going to regurgitate it again in a different venue. To recap for those who missed those thrilling posts, the President has no duty to ask for and the Court no power to provide opinions on the constitutionality of FISA absent a case or controversy brought by someone who has actually been injured in some way by the NSA Program. Apart from possibly one case where Justice accidentally disclosed a document allegedly listing a criminal defendant as a target of the NSA program, the civil cases brought to date fail for lack of standing by the plaintiffs.

I would further note that the FISA court has essentially conceded that it has no power under FISA to limit the NSA program and has appeared to gut the statutory requirements of FISA by issuing anticipatory program wide warrants ratifying the existing NSA program so that Justice will merely brief it on the progress of the program.

Game, set match.
 

BD:As a result, the enemy has not been able to launch a single attack on US citizens outside of the Iraq and Afghan war zones.

Do you include Jordan, Pakistan, and Saudi Arabia in the "Iraq and Afghan war zones"?? At least 28 US citizens have been killed outside of Iraq and Afghanistan by al-Qaeda attacks since 9/11 (compare to the 35 US citizens that were killed by Al-Qaeda prior to 9/11). It strikes me that the rate of attacks is relatively constant, with only 9/11 standing out as an outlier.

Forgive me, but one can make a very sound statistical argument on the basis of frequency of attacks and casualties inflicted that "as a result" of "going to war," there has been little or no net effect on Al-Qaeda's ability to wage war on the US.
 

Bart,

I would further note that the FISA court has essentially conceded that it has no power under FISA to limit the NSA program and has appeared to gut the statutory requirements of FISA by issuing anticipatory program wide warrants ratifying the existing NSA program so that Justice will merely brief it on the progress of the program.

Let me get this straight. The court has no power under FISA to limit the NSA program and has instead agreed to gut the statutory requirements of individual warrants. You appear to be saying both that under the FISA statute the court cannot limit this program (say, by requiring individual warrants) and that by agreeing to let this program go through without requiring such warrants the court is "gutting" statutory requirements.

So under FISA the court is required to "gut" the statute's own requirements? And many advocates of the TSP keep insisting that eavesdropping without warrants is permitted by a statute requiring warrants to eavesdrop. Explain these contradictions to me.
 

Presidents have a duty to seek, even to facilitate, test cases in court if they believe a congressional act to be unconsitutional. This is made clear in the 1994 OLC opinion, PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES, which remains on the books at DOJ.

The opinion stops short of saying.
presidents are required to seek such action in court, but it clearly advises it as a matter of good faith.

It would be quite simple for real test cases -- with real facts, not advisory situtations -- to be initiated in a variety of forms with the cooperation of the executive branch. Facts can be stipulated, privileges can be waived, etc. Alternately, DOJ could have brought a test case years ago within the FISA courts relying the fruits of its warrantless surveillance, but did not do so because the chief judge warned that it likely would be found illegal, according to the Washington Post.

In sum, there have been many opportunities for test cases in various venues. But not only has Bush not facilitated them, his lawyers have fought hammer and tong over standing and privilege, refusing even to brief the merits directly. It was all a rope-a-dope tactic, to buy time for a political bailout in Congress. When that failed, and the election rendered a future bailout improbable, the jig was up.

So far the adminstration has lost the only District Court case to be decided, and was facing oral arguments on appeal. A second District Court ruling in a parallel case was looming. If either case survives ultimate challenges to standing, and the Supreme Court reaches the merits of the core violation of FISA, the President's goose is cooked.

Notably, DOJ lawyers still are afraid to argue forthrightly in court what Bart parrots in public -- that FISA actually is unconstitutional.

Bart's assertion "that the FISA court has essentially conceded that it has no power under FISA to limit the NSA program" is, to put it mildly, preposterous. All we know is that the court approved an order for surveillance under a novel theory of what is allowed under the law. According to Gonzales, that did break some new ground precedentially. But that in no way supports Bart's outrageous characterization above.
 

Bart DePalma: ... and has appeared to gut the statutory requirements of FISA by issuing anticipatory program wide warrants ratifying the existing NSA program so that Justice will merely brief it on the progress of the program.

Sorry, I was laughing so hard I overlooked that whopper.

That fictional account completely contradicts Gonzales' sworn testimony. He says there are court orders under the existing FISA statute, which last for 90 days and must be renewed like all FISA warrants. The details of the "innovative" new warrants are not disclosed, but they do not comprise "ratifying the existing NSA program." That program, which is by definition warrantless, is being discontinued.
 

jt:

Thanks for the unattributed cut and paste from infoplease without any analysis.

Now, for the rest of the story...

2002 - June 14, Karachi, Pakistan: bomb exploded outside American consulate in Karachi, Pakistan, killing 12. Linked to al-Qaeda.

This was a car bomb parked next to a Pakistani Army security post by the embassy which targeted and killed the Pakistanis. Their is no evidence who performed the bombing, just speculation.

2003 May 12, Riyadh, Saudi Arabia: suicide bombers killed 34, including 8 Americans, at housing compounds for Westerners. Al-Qaeda suspected.

2004 May 29–31, Riyadh, Saudi Arabia: terrorists attack the offices of a Saudi oil company in Khobar, Saudi Arabia, take foreign oil workers hostage in a nearby residential compound, leaving 22 people dead including one American.


These were al Qaeda attacks on the Saudi oil industry and their workers as part of their ongoing war with the Saudi Royal Family. US citizens were not the targets, they simply worked for the Saudis.

2005 - Nov. 9, Amman, Jordan: Suicide bombers hit 3 American hotels, Radisson, Grand Hyatt, and Days Inn, in Amman, Jordan, killing 57. Al-Qaeda claimed responsibility.

These were attacks on Jordanian citizens by al Qaeda in Iraq because Zarqawi was attempting to punish Jordan's government for assisting the US.

June 11–19, Riyadh, Saudi Arabia: terrorists kidnap and execute Paul Johnson Jr.

Dec. 6, Jeddah, Saudi Arabia: terrorists storm the U.S. consulate (and are killed)


These are genuine attacks by al Qaeda in Saudi on US interests or citizens. I stand corrected. We have had two attempted and one successful al Qaeda attacks in Saudi on US interests outside of Iraq and Afghanistan where 3 Americans have died in the 6 years since 9/11.

Compare that to the death toll in the six years prior to and including 9/11.

These are the exceptions which prove my point.
 

Bart Depalma:In contrast with that success, Mr. Bush's acts which are alleged to exceed his authority are historically negligible.

Doesn't that, by definition, remain to be seen? Or are you the decider of history?
 

Enlightened Layperson said...

So under FISA the court is required to "gut" the statute's own requirements? And many advocates of the TSP keep insisting that eavesdropping without warrants is permitted by a statute requiring warrants to eavesdrop. Explain these contradictions to me.

You are confusing me.

I never said that the FISA statute required the FISC to ignore the requirements of the statute.

Let me attempt to clarify my point.

The FISA statutory language appears to require Justice to present evidence providing probable cause against individual surveillance targets before warrants can issue to perform that surveillance.

Ignoring these requirements, it appears that the FISC has agreed to issue prospective program wide warrants which reportedly ratify the current NSA program without any limits.

The point I was attempting to make was that the FISC is demonstrating that it acknowledges that FISA cannot limit the President's Article II authority to conduct the NSA program by ignoring the restrictions of FISA and instead ratifying the program as it exists now.
 

jt:

Thanks for the unattributed cut and paste from infoplease without any analysis.


The last thing we need is an "analysis" of anything from you.

You, OTOH, could probably benefit greatly from analysis.

You're welcome.
 

jao said:

Presidents have a duty to seek, even to facilitate, test cases in court if they believe a congressional act to be unconsitutional. This is made clear in the 1994 OLC opinion, PRESIDENTIAL AUTHORITY TO DECLINE TO EXECUTE UNCONSTITUTIONAL STATUTES, which remains on the books at DOJ.

That was the recommendation of Clinton's counsel. If you review the case law cited in this OLC opinion, you will find that the Courts make no such requirement of the President.

So far the adminstration has lost the only District Court case to be decided, and was facing oral arguments on appeal. A second District Court ruling in a parallel case was looming. If either case survives ultimate challenges to standing, and the Supreme Court reaches the merits of the core violation of FISA, the President's goose is cooked.

:::chuckle:::

The ratification of the NSA program by the FISC will most likely save Judge Taylor's political and unsupported opinion from being summarily reversed by the 6th Circuit. Apart from the Taylor opinion, the government has won nearly every round of these civil suits. These suits should fail for lack of standing and and evidence.

Notably, DOJ lawyers still are afraid to argue forthrightly in court what Bart parrots in public -- that FISA actually is unconstitutional.

Hardly. The government is moving to dismiss these cases at the outset for lack of standing and lack of evidence. At this preliminary stage, the government has no requirement to file an answer to even plead affirmative defenses, nevertheless argue such defenses in summary judgment.

Judge Taylor's entry of summary judgment without ruling first on the standing issue and without undisputed facts are the weakest parts of her opinion and came under nearly universal criticism by lawyers and law professors across the spectrum.
 

Bart,

The point I was attempting to make was that the FISC is demonstrating that it acknowledges that FISA cannot limit the President's Article II authority to conduct the NSA program by ignoring the restrictions of FISA and instead ratifying the program as it exists now.

IOW, FISC has made a secret an unappealable decision that FISA is unconstitutional, allowing the President to break it without either ackowledging that he is breaking it or having FISA overturned in any public venue. You think this is clever. I see it as a grave threat to the rule of law.
 

Enlightened Layperson said...

IOW, FISC has made a secret an unappealable decision that FISA is unconstitutional, allowing the President to break it without either ackowledging that he is breaking it or having FISA overturned in any public venue. You think this is clever. I see it as a grave threat to the rule of law.

The apparent concession by the FISC that FISA could limit the President's Article II power is not what you should be worried about. The NSA was ignoring FISA in any case. The FISC concession does not change whether the program operates.

The part of this apparent concession which should disturb civil libertarians and disturbs me as a defense attorney is that the FISC is granting prospective program wide "warrants" to the NSA surveillance without requiring probable cause.

I have no problem with the NSA performing warrantless intelligence gathering against the enemy. The courts have long ago held that the 4th Amendment does not require a warrant for intelligence gathering against a foreign group or their agents in the US.

However, if Justice attempts to admit evidence gathered under such a "warrant" against a defendant in a criminal trial, they are making a direct assault on the 4th Amendment IMHO.
 

Typo alert:

The apparent concession by the FISC that FISA could limit the President's Article II power is not what you should be worried about.

Should read:

The apparent concession by the FISC that FISA could not limit the President's Article II power is not what you should be worried about.
 

Enlightened Layperson,

You should not make the mistake of accepting Bart's unsupported characterization of what the FISC court has done. (He has spewed so much disinformation in this thread that it is difficult to catalog.)

There is no indication that the court has "issued prospective program wide warrants which reportedly ratify the current NSA program without any limits." That contradicts what we know.

The Washingon Post reported:

Sen. Arlen Specter (Pa.), the ranking Republican on the Senate Judiciary Committee, said Justice Department briefers told him the effort was based on "individualized" warrants, rather than a blanket order that would allow broader surveillance.

Four other people who have been briefed on the program, who spoke on the condition of anonymity because the program is classified, described it as a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people.


The New York Times also reported, "A Congressional official who has been briefed on the new procedures called it a hybrid of individual warrants and broader approval."

That does not describe a single, program-wide warrant.

Also, no one except Bart -- who obviously is just making stuff up -- claims that the court made any finding based on Article II of the Constitution.

Now, within the scope of FISA, it does seem that DOJ has succeeded in gaining court approval for something more flexible than it had previously approved. But that is not at all the same thing as ratifying the current program or even all its selection methodology. The central feature of the NSA program -- its lack of warrants -- is by definition not being approved.

For more informed speculation about what the contours of the new court orders might be, see the posts by Prof. Orin Kerr here and here. He first explored the hypothesis about program-wide approval, then rejected it.
 

Bart: That was the recommendation of Clinton's counsel. If you review the case law cited in this OLC opinion, you will find that the Courts make no such requirement of the President.

At least this remark gets us back closer to JB's original topic.

I did not claim in my comment above that the OLC opinion or the cases require the President to submit to judicial review. I explictly acknowledged that.

Rather, the opinion strongly advises this course, and even deference to the anticipated ruling of the court, as a matter of good faith. Bush exhibits no such good faith, and his lawyers game the law with contempt. In so doing, he dishonors the office and his affirmative duty to "take care that the laws be faithfully executed," even if he succeeds in remaining at large and on the lam.

To get back to the original topic, Posner and Vermeule think this is laudable. I could not disagree more.
 

jao:

Despite your outright misrepresentations of my posts, I will try to keep this civil.

You should not make the mistake of accepting Bart's unsupported characterization of what the FISC court has done...For more informed speculation about what the contours of the new court orders might be, see the posts by Prof. Orin Kerr here and here. He first explored the hypothesis about program-wide approval, then rejected it.

I will be generous and assume that you have not read my previous posts on the subject rather than assuming that you are deliberately mischaracterizing them.

I was among the first to post on this topic here and the first to link to the excellent Kerr analyses over at the Volkh Conspiracy so that the other readers here could follow the debate over what was being reported. I agreed with most of what Professor Kerr posted and gave my own analysis for where we differed.

If you disagree with my analysis, be man or woman enough to rebut it with your own analysis in a post directed to me rather than addressing your complaints about me to a third party.

There is no indication that the court has "issued prospective program wide warrants which reportedly ratify the current NSA program without any limits." That contradicts what we know.

The Washingon Post reported:

Four other people who have been briefed on the program, who spoke on the condition of anonymity because the program is classified, described it as a hybrid effort that includes both individual warrants and the authority for eavesdropping on more broadly defined groups of people.

The New York Times also reported, "A Congressional official who has been briefed on the new procedures called it a hybrid of individual warrants and broader approval."

That does not describe a single, program-wide warrant.


How do you figure?

Justice stated without later contradiction that the TSP is unchanged was being entirely covered under these new FISC warrants. Additionally, these warrants cover "broadly defined groups of people." Thus, the warrants must be anticipatory (because you cannot have prior probable cause for a broad class of people) and they must by definition be program wide if they cover the entire unchanged TSP. The fact that Justice is also obtaining individualized warrants does not preclude the conclusion that the FISC has also issued anticipatory program wide warrants.

Perhaps you are getting wrapped around the possibility that the FISC has issued two or more warrants that may each cover different "broadly defined groups of people" which combined cover the entire program. This is possible and largely irrelevant. My point is not that the FISC used one document, but rather that it issued a warrant or warrants which cover the entire unchanged program.

To my mind, that is ratifying the TSP rather than enforcing FISA to limit the program.

Also, no one except Bart -- who obviously is just making stuff up -- claims that the court made any finding based on Article II of the Constitution.

I provided an explanation of why the FISC is apparently ignoring the plain meaning of the FISA statutory language to ratify the TSP.

Once again, you are free to come up with an alternative explanation for why the FISC does not appear to be enforcing FISA against the TSP rather than using the coward's path of accusing me of "making stuff up."
 

JaO said...
Enlightened Layperson,

You should not make the mistake of accepting Bart's unsupported characterization of what the FISC court has done. (He has spewed so much disinformation in this thread that it is difficult to catalog.)


You can say that again. In fact, it should be bannered at the top of every thread. It's much easier than trying to refute everything, and I don't intend to bother. If you catch him in an obvious lie, that any grade schooler could catch, he does this:

De Palma... Thanks for the unattributed cut and paste from infoplease without any analysis.

Now, for the rest of the story...


What he means is: Shit! Now I really need to bullshit and spin some more.

This should come as no surprise to anyone here but either Bart, or the U.S. Government is lying, or just plain confused.

Info Please: 2002 - June 14, Karachi, Pakistan: bomb exploded outside American consulate in Karachi, Pakistan, killing 12. Linked to al-Qaeda.

De Palma... This was a car bomb parked next to a Pakistani Army security post by the embassy which targeted and killed the Pakistanis. Their is no evidence who performed the bombing, just speculation.

U.S. State Dept.: Car Bombing in Pakistan, June 14, 2002: A car bomb exploded near the U.S. Consulate and the Marriott Hotel in Karachi, Pakistan. Eleven persons were killed and 51 were sounded, including one U.S. and one Japanese citizen. Al Qaida and al-Qanin were suspected.

http://www.state.gov/r/pa/ho/pubs/fs/5902.htm

De Palma... We have had two attempted and one successful al Qaeda attacks in Saudi on US interests outside of Iraq and Afghanistan where 3 Americans have died in the 6 years since 9/11.

Hardly. Anyone who bothers to check can see that it's considerably more than 3, and I'm just counting civilians in al-Qaeda attacks up until 2003. Every attack on or near an American linked business or official entity is an attempt to kill Americans. The fact that they haven't killed more is a matter of our dumb luck. Since there is only "one enemy" (as per Bush), we should count all attacks on us by whomever. Since our invasion of Iraq, terrorist attacks on Americans are up, not down, and by my reckoning more have already died than in 9/11. Bart may not consider our troops U.S. citizens but I do. I commend Arne for his relentless pursuit of this embarassment to the legal profession. What is really sickening is that the blowback from this Iraq Clusterf*ck is going to be splashing back on us for years and years to come, whether we were stupid enough to stay in Iraq or not. It goes without saying this cretin will be slinging the same BS about how the invasion and occupation of Iraq made us safer and that the cessation of the occupation is the reason we are being attacked again (because we will be, but then, we've been being attacked all along, and now by groups besides al-Qaeda).
Just a few... I see no point in continuing this.

2002
January
Wall Street Journal reporter, Daniel Pearl, is kidnapped in Karachi, and killed by Islamic militants protesting detention of Taliban and al-Qaida fighters at U.S. Guantanamo Bay Navy base, Cuba.

March 17
Pakistan : Islamabad : Grenade attack on a church kills five, including American woman and her 17-year-old daughter. 45 others injured.

June 14
A car bomb exploded near the U.S. Consulate and the Marriott Hotel in Karachi , Pakistan . Eleven persons were killed and 51 were sounded, including one U.S. and one Japanese citizen. Al Qaida and al-Qanin were suspected.

October 8
On Failaka Island , Kuwait , gunmen attacked US soldiers while they were conducting a non-live-fire exercise, killing one US Marine and wounding one other. Al-Qaida claimed responsibility.

October 12
In Bali , a car bomb exploded outside the Sari Club Discotheque on Legian Street , a busy tourist area filled with nightclubs, cafes, and bars, killing at least 187 international tourists and injuring about 300 others. The resulting fire also destroyed the nearby Padi Club and Panin Bank and other buildings and cars. Al-Qaida claimed responsibility for this attack.


2003
August 19
Baghdad , Iraq , a truck drove into the driveway of the Canal Hotel housing the headquarters of the United Nations, and exploded, killing 23 (including three U.S. citizens and the UN Secretary General's Special Representative in Iraq ) and wounding 100. 7

November 8
A suicide car bombing killed at least seventeen people and injured more than 120 in Riyadh. US and Saudi officials sated that the attack closely resembled the Saudi bombings in May that were attributed to Al-Qaeda. In this latest attack, an explosives-laden car struck an upscale villa compound in western Riyadh inhabited by mainly Saudis and Arab nationals, however, the area was formerly home to many US contracters. The attack was claimed by al-Qa’ida. (Dumb luck)

December 31
Baghdad, Iraq, a car bomb exploded outside Nabil Restaurant, killing eight people and wounding 35 others. According to press reports, the wounded included three Los Angeles Times reporters (all U.S. citizens) and three local employees. No one claimed responsibility.
 

He also does this:

De Palma... Once again, you are free to come up with an alternative explanation for why the FISC does not appear to be enforcing FISA against the TSP rather than using the coward's path of accusing me of "making stuff up."

But JaO is not like Robert who was largely unaware of you history and MO. I don't think you'll be able to push his buttons that easily and run him off.
 

Bart,

As a matter of fact, it has not been established that the parameters of the new warranted surveillance are exactly "unchanged" from those of the warrantless "Terrorist Surveillance Program." All we really know is that the administration persuaded the FISC court to approve something Bush was willing to substitute for the TSP.

I am willing, for purposes of speculation, to surmise that it is reasonable there was a substantive expansion of what the court was willing to accept up-front as the "probable cause" required by the statute, compared to its previous precedents. After all, Gonzales has said under oath that the new scheme is "innovative," and DOJ's crafting of the warrant application was an effort "to be creative, to push the envelope."

You challenged me to speculate about what is going on with the new warrants. For details of what I think, which are getting off-topic in this thread, see my comments in Orin Kerr's threads to which I linked above. I generally find his theory about "anticipatory warrants" to be plausible, with my own embellishments based upon the Gonzales testimony. But that is not a theory of "program-side" blanket approval.

At any rate, I can see absolutely no reason to suppose, as you do, that the FISC court leapt to embrace some expansive constitutional theory involving Article II. I have never seen anyone but you mention that, and you provide no basis even to consider it.
 

Oops. That should read "'program-wide' blanket approval."
 

JT:

Let me give you a clue: Use of the term "suspected" when not accompanied by actual evidence means that the party is speculating without proof. Proof is al Qaeda claiming credit for the attack, which they are hardly shy about doing.

Next, the fact that a terrorist killed someone does not mean that they were targeting that person, especially when using area weapons like explosives on public streets. For example, the fact that one of your bombings on a Pakistani street killed a Japanese national does not mean that the bomber was targeting Japan or the Japanese.

You may have not realized this, but al Qaeda is at war with Jordan, Saudi Arabia and Pakistan and have been attacking these governments, businesses, nationals and everyone else who happens to be around for years now.

Further, I did not deny the enemy was engaging our soldiers in the Middle East. Indeed, that was my entire point. We deployed our military to the Middle East specifically for the purpose of engaging the enemy on his turf so he would no longer be free to target and murder our civilians all across the world.

Finally, you are really scraping the bottom of the barrel by claiming that a bombing targeting Saudis was actually an attack on the US because US nationals used to live at that location in the past.
 

Bart,

At 11:59 am you said,

Since the United States went to war after 9/11 and started to defend itself, we have largely destroyed the al Qaeda network, denied the enemy nearly any sanctuary and stopped dozens to planned attacks on US interests around the world. As a result, the enemy has not been able to launch a single attack on US citizens outside of the Iraq and Afghan war zones.

JT Davis then pointed out that Al Qaed is alive and well in a number of countries, particularly Pakistan, Jordan, and Saudi Arabia, and has killed US citizens in those countries. At 6:48 pm you replied:

You may have not realized this, but al Qaeda is at war with Jordan, Saudi Arabia and Pakistan and have been attacking these governments, businesses, nationals and everyone else who happens to be around for years now.

Further, I did not deny the enemy was engaging our soldiers in the Middle East. Indeed, that was my entire point. We deployed our military to the Middle East specifically for the purpose of engaging the enemy on his turf so he would no longer be free to target and murder our civilians all across the world.


So at 11:59 we had destroyed the Al Qaeda network and denied them "nearly any sanctuary," yet by 6:48 pm Al Qaeda is alive and well and operating in Jordan, Saudi Arabia and Pakistan, but not specifically targeting US citizens. You did not explain how the presence of US troops in Iraq prevented Al Qaeda cells in Jordan, Saudi Arabia or Pakistan from specifically targeting US citizens in those countries. Furthermore, at 11:59 Al Qaeda was unable to hit us anywhere except Iraq and Afghanistan, whereas at 6:48 Al Qaeda could hit us in other countries, but not outside the Middle East.

Your goal posts are mighty shifty.
 

"Bart" DePalma:

I would further note that the FISA court has essentially conceded that it has no power under FISA to limit the NSA program ...

Ummm, where? Where did they say that?

... and has appeared to gut [sic] the statutory requirements of FISA by issuing anticipatory program wide warrants ratifying the existing NSA program so that Justice will merely brief it on the progress of the program.

Once again (for the hard of listening): Are "program wide warrants" anything like "general warrants", perchance?

And just a note: I think you misspelled "violate" (or perhaps "ignore") there. If the FISC court is acting unlawfully, they should also be held to account.

Cheers,
 

"Bart" DePalma says:

The ratification of the NSA program by the FISC will most likely save Judge Taylor's political and unsupported opinion from being summarily reversed by the 6th Circuit.

It obviously was not "summarily reversed". "Bart" is simply wrong here.

Cheers,
 

We see exactly who "Bart" cnsiders to be the best and most persuasive "authority":

Let me give you a clue: Use of the term "suspected" when not accompanied by actual evidence means that the party is speculating without proof. Proof is al Qaeda claiming credit for the attack, which they are hardly shy about doing.

Wow. If al Qaeda says it (or more to the point, if "Bart" alleges that al Qaeda said it), of course, it is proved; it must be true....

Maybe this explains also "Bart" unquiestioning reliance on the lie... -- umm, sorry, "statements" -- of the maladministration.

Cheers,
 

De Palma... JT:

Let me give you a clue: Use of the term "suspected" when not accompanied by actual evidence means that the party is speculating without proof.



"Suspected" means that there is some intelligence, or circumstantial evidence, as in similarity of means and/or method, to the effect that a particular group may be involved, and that group is either linked to, or is in fact, al-Qaeda. But I will grant you this, if our government determines it can score propaganda points on it's own population, it will lie, just like you, about anything and everything.


De Palma... Proof is al Qaeda claiming credit for the attack, which they are hardly shy about doing.

Like "proof" is you claiming anything in your inumerable and baseless assertions, which you are hardly shy about? No, a claim of responsibilty, anonymous or not, is not proof of anything other than someone is making a claim, which may be false. A claim of responsibility combined with a suspicion, based on some intelligence or circumstantial evidence, as in similarity in means and method, to the effect that a particular group may be involved, and that group is either linked to, or is in fact, al-Qaeda, is what it is. Speculation is when any investigator says something like: "At this point, everyone is a suspect." or "We have no suspects, so anything I say at this time is pure speculation."

U.S. Figures Show Sharp Global Rise In Terrorism
State Dept. Will Not Put Data in Report


By Susan B. Glasser
Washington Post Staff Writer
Wednesday, April 27, 2005; Page A01

The number of serious international terrorist incidents more than tripled last year, according to U.S. government figures, a sharp upswing in deadly attacks that the State Department has decided not to make public in its annual report on terrorism due to Congress this week.


Really, Mr. De Palma, seek professional help. If Scott Helvenston had, he might not have signed up with Blackwater and been killed, burned and hanged from that bridge in Iraq. Another sad case of a man who had trouble distinguishing between fact and fantasy, not unlike you.

'Combat Missions' star Scott Helvenston among 4 dead in ambush in Fallujah, Iraq

Scott Helvenston, 38, a former U.S. Navy SEAL who was one of the principal stars of the USA Television reality series Combat Missions, has been identified as one of the four Americans who were killed and then abused after death in an ambush by Iraqi terrorists in Fallujah, Iraq on March 31...

Scott became the most prominent member of the Delta Team on Combat Missions, in part because of his bizarre and unpredictable behavior. His most famous quote came in Episode 13, the episode in which his team was eliminated and he threw two tantrums: "I’m psychologically disturbed."

 

* * * * *

At least 186 antiwar protests in the United States have been monitored by the Pentagon's domestic surveillance program, according to documents obtained by the American Civil Liberties Union (ACLU), which also found that the Defense Department collected more than 2,800 reports involving Americans in a single anti-terrorism database.

The internal Defense Department documents show it is monitoring the activities of a wide swath of peace groups, including Veterans for Peace, Iraq Veterans Against the War, Military Families Speak Out, Code Pink, the American Friends Service Committee, the War Resisters League, and the umbrella group United for Peace and Justice, which is spearheading what organizers hope will be a massive march on Washington this Saturday.

One TALON report states "Veterans for Peace erected an antiwar display the week of 18 April 2005 at a local university," reads a report on a New Orleans protest from the Pentagon's Threat and Local Observation Notice (TALON) database."

FBI Joint Terrorism Task Forces in Atlanta and New York were briefed on planned protests.

* * * * *

This will mobilize the anti-war movement.
 

Bart's push to make a point about how no US entities outside of Afghanistan or Iraq have suffered any terrorist attacks, while not accurate, still raised a thought for me.

Logically, all US deaths inflicted by al-Qaeda in Iraq count as successful terrorist attacks against the US, since al-Qaeda had no existence in Iraq prior to the US invasion/occupation. Our actions there created an opportunity for al-Qaeda, which they've had success in exploiting. These are losses that occurred outside the AUMF bounds, and represent US losses not as a result of pursuing al-Qaeda or terrorists linked to 9/11, but something else, making those loses entirely unnecessary with respect to fighting terrorists. The fact that terrorists have moved in is our fault and our responsibility. We made ourselves vulnerable to terrorists in Iraq, and they succeeded in attacking us.

Also logically, deaths by al-Qaeda and al-Qaeda allies in Afghanistan aren't counted, as Afghanistan was a legitimate target via AUMF and was an actual counter strike, unlike Iraq. We had to go to Afghanistan because al-Qaeda was there, unlike Iraq.

But, given that al-Qaeda has limited resources and now appears to be expending most (but not all, obviously) of those resources in Iraq, it seems that the Iraq invasion/occupation has had the effect of drawing those resources away from US soil.

I know, I'm treating al-Qaeda as though they were a centralized entity which they're not, but for purposes of examination and thought, its compelling that we've created a terrorist playground in Iraq where there was none before and which appears, at least for now, to be largely occupying their focus.
 

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