[UPDATE: 17 FEB 2006] The good lady running Revka's Take has switched to Haloscan, thus all the comments are lost. I am sorry about this and hope that those reading this will still gain something from it.
Well, it is interesting to see how so many individuals see the Congress as the be-all, end-all of laws and want grand limitations on the powers of the Executive under the Constitution. I have been exchanging a few words, here and there, which for me means letting my mind zone out and my fingers dance forth to put a coherent thought together over a few minutes. Always such fun!
I do get a bit incoherent at times, but tend to finally come to some sort of a conclusion... usually... So I am going to hand you some highlights! Such fun!
From the darling woman who runs Revka's Take, I have had some interchange with other readers, but most of my words stand on their own, so I will let them speak for themselves (names and such removed and some editing involved, originals linked as long as the fine lady decides to keep them up, this shortening is just for me, mostly, but if you are wandering by, do understand their source... and spelling? hah! fuggetaboutit):
-NSA Wiretapping thread
My commentary -
From my hospital bed I finally put together the post on the NSA stuff.
The Constitution is in force within the bounds of the areas controlled by the United States. FISA is fully constitutional for any proceedings that happen fully and completely within that boundary. Or for any procedure leading to a due process proceeding based on foreign communications.
The NSA explicitly cannot operate within that boundary. It intercepts messages outside of the boundaries of the United States and must filter out *all* communications that the US has inside its territory. If the NSA finds something that may be prosecutable by one end being in the US it *must* go to FISA. If it is intercepted outside of those areas controlled by the Constitution, and it is use for other than due process proceedings, tell me exactly what right you have that exists in that space and can be enforced via the Constitution.
The answer to that is that the rest of it is under the Executive powers and responsibilities as laid out from the oath of office to the control of the military.
If Congress does not like what the NSA is doing, and no Treaties or Congressional commerce powers with foreign Nations is being stepped upon it has one and only one recourse set forth in the Constitution:
STOP FUNDING THE AGENCY AND ABOLISH IT
FISA can only be Constitutionally applied to communications being used for due process proceedings for Law enforcement. That is why it was designed by Congress. If any Foreign Intelligence or Surveillance turns up something requiring due process proceedings against a citizen or legally admitted alien in the United States it *must* go to FISA.
To ask otherwise and seek otherwise is to deny the Republic, the Constitution and ask for an Empire. This is the USA, not SPQR. If the citizens do not like how the Executive is using the powers it has been given to defend and protect the United States then AMEND THE CONSTITUTION and EXPLAIN how this role will be fulfilled.
It is *not* a question of statute.
If you are freaked at the idea that the Government or any Government might listen in on your trans-national conversations with your Aunt Drucilla in Amsterdam, all I have to say is *grow up*.
Your rights exist within *you* and are recognized within the confines of the Constitution and the actual, physical area that is controlled under it. We The People allow the Executive a damn free hand to preserve and protect this country by making him the sole Commander in Chief of the Armed Forces *and* the Head of State for dealing with Foreign Nations.
If you want remedies, do *not* look to the law, for it will not help you here. Either tell Congress to defund the NSA, or Amend the Constitution to proscribe the powers of the Executive even *more* than it already is and *then* decide where you are going to vest this power to serve and protect the Constitution.
Thus endith comment the first. My only additional is that this should be pretty clear-cut. Laws are only enforceable within recognized areas, outside of them *lotsa luck*.
More of my commentary in that thread -
The Constitution is not a time consuming document to read in its whole and entirety. The Founders spoke in a clear and crisp voice, almost tart... We do have the rights as The People.
We grant rights through the Constitution so that we may be governed well with those things that *must* be done for all of us.
That means that we must respect that our rights have limits and responsibilities. The one limit everyone seems to easily overlook is that the Territory under control of the Constitution is *not* limitless. Your rights have limits in a world with many foreign nations. A Sole Commander was put in charge and made Head of State to protect and preserve us from the wilderness beyond Our borders. We specifically, by doing so, say: Go forth, represent us and protect us from harm.Congress does have a role and it can actually *help* in stopping terrorism.
If they had any backbone.
If they had any courage.
If they had any brains to stop the partisan bickering and backstabbing.
Congress has other powers beyond making laws and creating lesser courts. Putting bounties on the commerce that allows terrorism to flourish is the responsibility of CONGRESS.
I am currently not too well, intemperate and more than a bit irate. But all these fingers pointing at the Exectutive for doing his job and not a damn single solitary one of them pointing to Congress and saying: "Cowards for not taking the fight to the enemy for that part you have responsibility over."
More worried about their friends, their earmarks and getting re-elected instead of actually helping to protect us all by doing their job. No incumbent will get my vote from this Congress. This fight must be fought on all levels together, and commerce which is the sole grant to Congress along with the ways of crippling it for a distributed opponent via the Marques and Letters is their DUTY.
And, no, the Executive does not have to ask them on this. If they are too blind to the powers and responsibilities they HAVE... then why should I trust them with laws? With ANYTHING?
We judge the person wanting to be President and ask ourselves: is this the person we want to protect our country.
It is time to do the same of Congress.
If needs be I will stand alone and point my finger at the problem. Perforce that is what I am limited to in latter days.
I am Gray.
I stand my ground, between the Darkness and the Light.
Thus endith my second comment. My largest complaint with people who argue the law, is that *first* it must be asked if the law is Constitutional. FISA, in particular, has limits and may NOT constrain the powers of the Executive as CinC and Head of State. And the outgrowth of that and my previous discussion on the role of Congress in the War on Terror, is that everyone *thinks* the Executive is the ONLY way to wage war. And yet Congress has an effective means and ability if they would only use it. Deep, deep sigh. Arguing Law in Constitutionland... if the law fits, fine... if it doesn't? Then quit arguing and read the Constitution...
Now if that wasn't enough, here is my Third Comment on the topic in that very same thread!
(To another poster, in response) - To me there has been no violation of the Constitutional powers laid out for the Executive. And I very well *know* that many of the Pentagon briefs since 9/11 have informed Congress that asymmetrical warfare requires new tools and not all of them are military. Non-traditional forms of attack are left up to CONGRESS via The Letters of Marque and Repraisals language in the Constitution. The Executive cannot order Congress to help. The Executive has no power over purely commercial and civilian shipping if they have no definitive evidence it is being used to help the enemy. That bit is left for Congress. The Executive is doing everything it can to track down *individuals* but cannot do the precise economic damage that Congress can specify via The Letters language. Congress has within its power via the Constitution to attack types and classes of TRADE. They can make it very specific and require positive proof for those individuals or companies bringing specified items to the US. Terrorists must be made to feel the hard pinch on its oxygen tubes and of the many little cuts of losing trusted shipping and transportation.
There would be some bad PR from this, but who the hell cares? I do not want to see one of the few transport vessels owned by al Qaeda via front companies pull into a port and see the port disappear or become uninhabitable. The same for old jet transport aircraft it has in Africa. And *anyone* who transports goods or gives services to terrorists can and *must* be targeted by Congress. This country *can* wage asymmetrical warfare via the Congressional powers. Put out bounties for items, require proof-positive that it is going to terrorists or is being used by such groups as Congress will define and then just let the People figure out the best ways to get the stuff. We are one of the most diverse and talented peoples on the planet and can adapt to new methods and means.
But only if Congress uses its powers.
Americans are not *sheep*. We are not *socialists*. We are not *afraid* of getting our hands dirty and putting life and safety on the line for risky ventures.
As this war is and can never be wholly military, we *must* use the other tools available to us. When the Executive comes forwards and tells us that it can only do a small fraction of the work that the nation requires, then Congress has the responsibility to step up to the plate and use its powers for making war via commerce.
I remember in my social studies class that the teacher told us that the The Letters were used when the US had no fleet to attack Countries. al Qaeda is *not* a country. If they want to wage war via some other means, then, perforce, WE must use other tools than just Executive powers.
Wherefore art thou, Congress?
Afraid of Executive powers? Are you too afraid to use your Own powers, Congress? Are you afraid of *all* powers?
I have had it with this Congress and the bleating sheep within it. I will not vote for sheep any longer. I want men and women who understand the powers we have chosen to give them and who will use those powers to protect us. The only way to change that is to change how you vote.
I no longer care about Democrat or Republican. They are all spineless in this.
Going home today and must eat now.
(To another poster and the site owner) - I may be a bit intemperate at the moment. Please excuse me on that. Perhaps one of your posters so worried about the Executive will inform me on how they feel about the abdication of Congress for doing its part to bring the fight to the terrorists with the tools that ONLY Congress may wield.
So endith the third commentary, which it shall be the number 3. See dead horse, watch me beat it. See flies buzz. This country is in a damn sorry state if every damn time the Executive sneezes someone yells: "Illegal!! Impeach!! Impeach!!" Congress, however, has now gained my ire as never before in my life. I have come to the realization that the Constitution AS IT WAS DESIGNED gives the *exact* leeway for conducting asymmetrical warfare via Congress. We are all probably damned to some smoky corner of the nether regions of the multiverse because the politicians we elect do not have the sense to realize it. Congress could do it if they only kept to their oath, thought about their powers and *used* them. As it is, pass the buck to the Executive and gripe, gripe, gripe, gripe, gripe....
Now comment four!! Well, never, ever ask me to explain my position on something, because, unfortunately, I usually do:
(To another poster) - I try not to expound on the Constitution, but to read it as it was first meant: how to define powers *given* to government and then how those powers relate to the somewhat morphed modern world.
The Executive wears a few hats, with narrow language, but that language defines broad areas of responsibility. Lets face it, the Congress gets 10 sections and the Executive 4. Those four sections have to be read in context within the concept of government being put forth, and the first section ends with the overview by giving the Oath of Office speech.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
And I give a basic overview on where your rights (as an individual Citizen) are contained here. By giving the Oath precedence over the explicit language for the President, the Executive powers must contain those things that the Oath requires to make it valid. The actual, non-infringeable powers are laid out next, with provisos given for various areas on assignment of personnel and such given later, but broadly these are:
1) Commander in Chief of the Federal armed forces. This first duty, coming right after the exlicit Oath, indicates that this is of Primary importance to the Executive branch. The actual details of setting up codes and discipline and such are left to Congress, but the execution of those codes are left to the Executive. The UCMJ applies to the President only for those actions taken as CinC and may not hinder the CinC powers. The refining language in Amendment V further defines that prosecution for wartime happenings by soldiers is done by military rules. If the President claims CinC activities as the basis for his or her actions during wartime, they can only be judged via the UCMJ. On top of that the Oath language allows for leeway in the discretion of the President as CinC.
2)Leading the Federal Government. The President gets this hat so that Congress may *not* rule the people via the Federal government. This is a check on Congressional powers and a balancing between them so the Executive does not run amok with them. However, it is of secondary precedene to the CinC powers and those powers top it during declared wartime. Congressional hinderance with the Federal government during declared wars is something done at the peril of Congress for trying to undermine the powers of the Executive to uphold the Oath. The Judicial balances both, but must give preference to the Executive in wartime.
3) The ability to Pardon. This is a check on the Judicial branch, seeking to overreach its powers. A basic and brutal check to allow the Executive to keep the Judicial from seeking to silence the People or Congress by an overreach. Other than that the President can use it to balance unjust decisions that are obviously ill for the Union. The Citizenry does look askance at pardoning political cronies and such, but now has no opportunity to show that dissent in the second term, beyond impeachment due to Amendment XXII. The only recourse for showing such dissatisfaction is to vote in opponents that are somewhat more palatable and deny those associating with the President the continuance of power. Presidents that do not have to run for re-election may pardon just about anyone and suffer no repercussions as there is no recourse via the Constitution to this power.
4) Head of State. By the Treaty signing language and appointment of Ambassadors language, the Executive wears the Head of State hat and all that goes with it. This broad role is to set foreign policy via Embassies and Treaties and have them regularized by agreement with the Senate. Congress then can set down laws to put the Treaty language into force. It must be noted that although Treaties gain the same level of the Constitution, they may not *Amend* the Constitution, which is a mentioned and sole right as given by the process later described in the Constitution. The Executive and Congress may not *gang up* to deprive the People their say in how to run the Republic. Thus Treaties are to establish and set foreign policy and allow it to be regularized, but may *not* trump any part of the Constitution itself.
These four hats are given some adjustment in Section 3, so that the Executive may keep Congress informed of such activities as it desires. Also, if Congress gets into such a state of dead-lock that nothing can be achieved he can bring the sides together in a Joint session and tell them to figure it out or go home. The Ambassador receiving language is to cement the Head of State hat and reinforce it. And the enforce laws gives the entire bringing of Federal cases bit of the Government under the Executive so that Congress may not meddle in the day-to-day affairs of it.
The last section deals with the removal languange and procedures.
Basically, anything going on outside the United States is the domain of the President as CinC and Head of State. The power to regularize commerce with Foreign nations is with Congress, but the Head of State sets who Congress may or may not deal with. Treaties are required to allow formalization procedures to begin.
As it has developed over time, the President using the CinC hat has used Federal military forces to achieve ends that he sees as favorable to the United States, short of the need to declare war. Going after pirates, rogue regimes threatening the US but without current reach to get to it or lending logistical aid to allies. The Marines, over time, have been seen as the CinC's troubleshooters (both in solving problems and in shooting trouble). Congress may not like it, but only has the budgetary authority to end such, and if it is done with discretionary funding, then Congress needs to work hard on either adjusting the system to their liking (difficult) or accepting that Exectutive actions may require backing by the Union (often unpalatable).
The President also gets the power of the veto as a *negative* power in Article I. This is a check to Congressional power and used to keep unjust laws or other problematical legislation from being passed. If this were mentioned with the Head of Government power, I would lump it in that, as it is this is a separate power meant solely as a check.
Thus the Executive gets 4 hats to wear, with one check power. Each hat has a narrow definition, but has broad expanse within that definition. Compared to the law writing, budgetary authority and War Declaration authority given to Congress, these are very, very narrow powers, indeed.
So endith comment four. I close my eyes and hope that I have done Mr. Heinz and Mr. Larsen proud!! I will never forget either of you fine teachers of Social Studies in the 8th and 10th grades. Because what I have done is basically recapitulate the entire overview of the Executive as they taught it to me and as I have referenced as of late to make sure I really *do* understand it. And, yes, I aced both courses.
Now, on to comment 5! *Right* Now, could it be I have actually been thinking ahead and laying out the complete groundwork of the balance between the Legislative and Executive branches for a reason? Was I goading on a querrolous commentator, just to deliver yet another view that I have, actually covered mostly elsewhere? Or was I just very, very PO'd? Your call, I was brain dead at the time and my fingers were doing as they will...
(To the same poster I was giving an answer to in 4) - I do a complete review of where your rights and are not valid within the framework of the constitution in this post on Where exactly our your rights? The short part of it is that Amendment IV powers are inherently limited within the 3 dimensional space of the Nation State known as the United States of America, its Embassies and terrirtories. Your rights are wholly and completely valid within that Zone of Control.
When you communicate outside that Zone, you are in an area where only Foreign State Treaties are in-power, with the Executive having the authorization to protect the Constitution via the lands containing it from outside threat. Your communications wholly within the ZoC of the Constitution are valid. Outside of that Zone you are at peril to International Treaties, intercepts by any government or individual, and the power of the Executive as CinC and Head of State.
If intercepts are performed outside that Zone of Control, you have no say whatsoever in who may or may not intercept them, save for communication that is between the parts of the whole Zone (such as the mainland to Hawaii or any state to an Embassy) as this is covered under the Constitution by the Congress. Foreign intercepts used for National Security means may not be abridged as that is the sole right of Executive to perform via the CinC and Head of State hats.
That should be clear.
Beyond that, the CinC is limited to UCMJ rules so long as they do not infringe on the CinC powers and responsibilities to defend the Constitution and the lands containing it. If an intercept contains possible evidence of the wrong-doing of a Citizen or someone legally within the US, then the Executive *must* seek FISA adjudication for wiretapping as there is a due process procedure necessary for law enforcement. For any other means or reasons, such as military control or national protection, due process is not indicated if there is no evidence of wrong doing in the opinion of the Executive. As the law enforcement part of the Constitution is given to the Executive as Head of Government, advice is sought from that branch (normally the FBI, but also military groups, CIA and other branches as necessary) on the possibility of the need for due process. At that point, again, the lesser court set up by Congress must approve of starting the investigation within the 72 hours provided for analysis.
As the Executive has indicated via the Attorney General and via informing Congress on this program (as is his privelege and may not be required by Congress for non-due process proceedings, but is done as a courtesy), Congress may seek remedy if they believe that due process proceedings are being violated. Unlike a domestic wiretap, communications intercepts taking place in non-US ZoC areas are only covered by the Executive as CinC and Head of State, and the Congress via Treaty and regularization of commerce language.
Congress has put out language, previously, that the US Intelligence Services may not keep files on US Citizens outside of due process proceedings. However, in territory leased or rented to the United States, this verbiage has no force of law and only that of the Foreign State or International treaties (in the case of Space and international waters) applies.
Your Amendment IV rights apply within the ZoC of the Constitution, but not outside it. To seek otherwise is to ask for the US to enforce your rights on the entire globe from all seeking to intercept your communications and other goods. This is a Republic, not an Empire. To ask for the Executive to show cause and seek FISA for non-due process tasks and in that area specifically and solely given to the Executive is a broad over-step by Congress. Congress may demand due process procedures and limitation on record keeping of foreign intercepted communications, but Congress may *not* attempt to prohibit those intercepts from happening outside the ZoC nor their analysis for National Security interests that are the sole purview of the Executive. They do require that all non-due process recordings and those not vital to national security be destroyed, via the law passed covering those records which has review by all departments working in intelligence and overseas operations (including such things as the Dept of Agriculture and Drug Enforcement Agency).
If, for national security reasons records are held and the analysis indicates that due process is required, at that point the Executive *must* go to FISA and ask for more direct surveillance or passing on that to the domestic arm for Counter-Intelligence housed by the FBI. Those national security records, however, are not admissible in court and may not be used other than to indicate to FISA that there is wrong doing. FISA may actually rule on the admissability of the records otherwise, if good faith demonstration is given that the prior activity did not fit under due process and was national security *ONLY* and that the most recent analysis now indicates that either due to other information or due to new information that a pattern of behavior requiring due process requires law enforcement to take place.That is my opinion only, after having looked at the Constitution and having a small amount of knowledge from my previous job with the Government.
To date no one has demonstrate that the Executive is keeping records other than national security in this procedure currently under discussion. To say otherwise, to suggest that men and women dedicated by their time in Civil Service or the military are keeping non-due process and non-national security records or reporting to the respective Inspector Generals of the various branches that Executive interference is taking place is, frankly, insulting. Directly to me, as a Citizen who worked for the Government and to all of those Citizens who have taken an Oath to uphold and protect the Constitution, who get annual briefings on this subject and who are in charge of the oversight and destruction of such records.
It is PURE insult. Every person I have met in the military and civil side have a strong ethical streak and know their obligations to step forward and report wrong-doing. Even if it blasts their career all to hell and gone, they still step forward if they believe they are right. This is strongly insulting to those who have taken low paying jobs, take Oaths, get training and refresher training, and know the penalties if they do *not* report wrong-doing, especially high-level wrong-doing. Their lives are on the line for just having those jobs, in this era of terrorism, and I, quite frankly, seethe when someone like Sandy Berger is let off for destroying critical government classified records when he should be spending many long years turning big rocks into small rocks. That is what I faced, my coworkers faced and all working in this area face. And if it leads to the loss of a Citizen's civil rights, or even the death of those we protect, the punishments become harsher still.
Amendment IV rights are protected and upheld for due process. Only national security via foreign intercepts to determine *if* a Citizen may actually be undermining the Republic are kept and then limited to a very few analysts and *destroyed* or put into due process upon a final determination. And we have been informed to *always* give the benefit of the doubt to the Citizen and destroy in preference to keeping records if anything easily explaining activities are found. Congress has spoken and we damn well follow those rules, save where the Executive powers as CinC and Head of State to protect the Constitution and the lands holding it require that they be kept to determine prosecutability of non-understood actions.
And one other minor point, the majority of this data is not even kept, just the metadata of phone number to phone number so that patterns may be recognized. The overwhelming majority of that is destroyed if it has US bound numbers. Only certain regions and certain communication points are of interest based on past communications.
Are you beginning to get the feeling that your rights are being adequately protected within the ZoC of the United States and the Constitution governing it? Do you happen to actually understand the scope of the problem of tracking down a distributed terrorist organization?
If you are, finally, worried about other intercepts kept in places not actually controlled by the United States but under its purview, then elect a President that will tell you about it. If Echelon has been around as long as is suspected, then we are looking at possibly 4 administrations and 2 political parties are keeping it quiet. One may not tar just this President, as all previous are also responsible for doing since the inception of that program if it exists. And the Constitution only gives Congress, via commerce and Treaties the ability to try and ensure that such records are not kept. So far I have heard not one word of Treaty violation. Nor one word of actual due-process violation. Not one word from the people running the program. They take their Oaths seriously and the responsibilities that go with them.
I find questioning the values of the people not in the Administration who have to do the actual, painstaking scut work to be reprehensible.
So endith comment 5. One of the most idiotic things I have run across in this entire NSA flap is that every critic has not bothered to actually *think* about WHO IS DOING THE WORK! Do they think it is the President and Vice-President sitting down at a terminal and magically pulling up your phone call to Aunt Drucilla? The entire civil service is, yes, under the Executive, but we all obey the laws put in place by CONGRESS! To say that 'The President did this, or the President did that and it is illegal!' is actually, to me, saying: "The person running the intercept, the person doing the decoding, the person doing transcribing or translating, their QC person, the analyst looking at multiple transcriptions, *their* QC person, the person compiling the Executive Summary, the person delivering the Executive Summary, the security personnel who went through the transcripts, the summary and anything else to remove identifying information where necessary, about 3-5 line bosses, 2-3 department heads and a whole bunch of other people are *guilty* of breaking so many laws, statutes and Acts that they might as well be charged with treason so that the President can get what he wants." We are *not* talking about the Trickster and his Plumbers, nor trying to influence the CIA to interfere with the FBI, nor trying to use the IRS to harass political opponents.... we are talking about dedicated Civil Servants working their job in a professional manner and keeping to multiple codes of conduct, security, ethics and oversight. Basically, it is a charge that the entire Intelligence establishment within the Federal Government is corrupt and a pawn of the President. I DO TAKE UMBRAGE AT THAT!
Comment the Sixth in which I beg forgiveness for any intemperance.
(To the fine woman running the site) - If you find my previous post to be extremely intemperate, uncivil and insulting, then please delet it with my apologies.
I do my best to get my ideas across and not step over a line of civility. I feel I have just barely kept to that line, but ask you to review and decide.
I am sorry to any I have insulted or hurt via that response.
So endith comment 6 of my numbering in this thread. I know when my emotions get their say and I do try to temper them. Really! When I am *very* angry you can feel the deep, bone chilling cold from the depths of intergalactic space that attend them.
And a quick 7th, to make it perfect, to the fine lady, in thanks.
(To the site owner) - My thanks!
I am very tempted to start a French Pig Party for things that seem to be overly cooked up to get intemperate responses or inordinate attention... and the NSA scandal is sounding like yet another French Pig Party.
And so endith the 7th comment on this thread.
And so I started a little place to put down the ridiculous things done to get attention here.
All the words contained in such posts are mine, save where I am quoting others and explicitly state such or use parts of the Constitution as needed to re-inforce my points. If you want what was said in response, you have to actually *click* on a hyperlink to go there. I know, that whole point and click business is just *so* difficult... just be glad you don't have to use vi to edit text (unless you truly are a sick UNIX guru, in which case I suggest a strong dose of sunshine to keep your shirt from taking off with you).
10 February 2006
[UPDATE: 17 FEB 2006] The good lady running Revka's Take has switched to Haloscan, thus all the comments are lost. I am sorry about this and hope that those reading this will still gain something from it.