Defiant Bush admits breaking law

[jackie hayes]

Pussy.

[NorthSideSox72]

The title contains "military force", but the text itself uses only "force".  I don't believe any interpretation of the word should exclude intelligence.  In any case, I want to see a source which states that "military" action must be "foreign".  The Civil War was just a police action?

 

 

Comitatus (spelling probably butchered) made it very clear that the military could not be used on US soil except when defending against an invading force.

[jackie hayes]

That act seems to refer only to the Army, AF, Navy, and Marines. I don't think any of those is involved here, right? There also seem to be a lot of exceptions (war, emergency), and I'm sure the WH would stretch the "necessary" clause to fit here, if it needed to.

[NorthSideSox72]

That act seems to refer only to the Army, AF, Navy, and Marines.  I don't think any of those is involved here, right?  There also seem to be a lot of exceptions (war, emergency), and I'm sure the WH would stretch the "necessary" clause to fit here, if it needed to.

 

Domestic law enforcement is not use-of-force in a governmental sense.

[jackie hayes]

Domestic law enforcement is not use-of-force in a governmental sense.

Bush's argument is that this is NOT domestic law enforcement, but part of the war against al Qaeda.

[Reddy]

Bush's argument is that this is NOT domestic law enforcement, but part of the war against al Qaeda.

 

awww snap!

 

EDIT: i love my insightful comments

Edited January 20, 2006 by Reddy

[NorthSideSox72]

Bush's argument is that this is NOT domestic law enforcement, but part of the war against al Qaeda.

 

Then it's military force inside the borders used against US citizens, and its per se illegal.

 

"snap" my ass.

Edited January 20, 2006 by NorthSideSox72

[Reddy]

Then it's military force inside the borders used against US citizens, and its per se illegal.

 

"snap" my ass.

 

awww double snap!

Edited January 20, 2006 by Reddy

[jackie hayes]

NSS72, just to be clear, I'm on the same side of the big picture issue.

 

From what I can find (and I'm not a lawyer, so...), the Comitatus Act does allow exceptions -- for national emergency or war. It specifically prohibits the use of the military for "enforcement". But using military resources inside the US against enemy combatants, during wartime, seems permissable. If nothing else, Wikipedia claims that "Under 18 USC 831, the Attorney General may request that the Secretary of Defense provide emergency assistance if civilian law enforcement is inadequate to address certain types of threat involving the release of nuclear materials, such as potential use of a Nuclear or Radiological weapon. Such assistance may be by any personnel under the authority of the Department of Defense, provided such assistance does not adversely affect US military preparedness." So some vague argument about al Qaeda trying to acquire nukes might be sufficient.

 

And, more importantly, it doesn't address the question I raised first -- have the Army, AF, Navy, or Marines been involved in the wiretapping? I don't believe the act says anything about Justice or the intelligence agencies.

[NorthSideSox72]

NSS72, just to be clear, I'm on the same side of the big picture issue.

 

From what I can find (and I'm not a lawyer, so...), the Comitatus Act does allow exceptions -- for national emergency or war.  It specifically prohibits the use of the military for "enforcement".  But using military resources inside the US against enemy combatants, during wartime, seems permissable.  If nothing else, Wikipedia claims that "Under 18 USC 831, the Attorney General may request that the Secretary of Defense provide emergency assistance if civilian law enforcement is inadequate to address certain types of threat involving the release of nuclear materials, such as potential use of a Nuclear or Radiological weapon. Such assistance may be by any personnel under the authority of the Department of Defense, provided such assistance does not adversely affect US military preparedness."  So some vague argument about al Qaeda trying to acquire nukes might be sufficient.

 

And, more importantly, it doesn't address the question I raised first -- have the Army, AF, Navy, or Marines been involved in the wiretapping?  I don't believe the act says anything about Justice or the intelligence agencies.

 

OK, then regarding Comitatus specifically...

 

I doubt specific military branches would be held-to for legal purposes, since Comitatus was (i think, correct me if not) written before the AF existed, and you'd want to leave flexibility.

 

And I think since he's been doing it for five years, that the phrase "emergency" is no longer applicable. There is no invading force. There is no riot.

 

I just don't see how surveillance of citizens can fall under emergent military force. And the idea of the Act is, as far as I can tell, to prevent the military from being used against US citizens. Seems to me Bush is trying to have his cake and eat it too - calls it military action so he can keep POWs, but doesn't call it military when he wants surveillance.

[Reddy]

OK, then regarding Comitatus specifically...

 

I doubt specific military branches would be held-to for legal purposes, since Comitatus was (i think, correct me if not) written before the AF existed, and you'd want to leave flexibility.

 

And I think since he's been doing it for five years, that the phrase "emergency" is no longer applicable.  There is no invading force.  There is no riot.

 

I just don't see how surveillance of citizens can fall under emergent military force.  And the idea of the Act is, as far as I can tell, to prevent the military from being used against US citizens.  Seems to me Bush is trying to have his cake and eat it too - calls it military action so he can keep POWs, but doesn't call it military when he wants surveillance.

but yet none of the dems in congress have the backbone to call him on it.

[FlaSoxxJim]

but yet none of the dems in congress have the backbone to call him on it.

That's not true though. The exploratory Democratic hearings that took place today are an important first step in making sure this debate takes place on the floor, and hopefully in the courts as well. They had a lot odf scholarly witnesses that opined that the administration's defense here is nearly non-existant in their estimate. And a good number of Dem congresspersons got on record as being vocally very concerned with the apparent abuse of Executive power.

 

The BushCo pushback begins in earnest next week, with Bush visiting the NSA on Monday (hopefully there will be a big protester turnout), and Gonzales and former NSA director Michael Hayden are also doing interviews Monday and Tuesday.

Edited January 20, 2006 by FlaSoxxJim

[Rex Kickass]

Except Dem hearings don't go on the Congressional record.

[jackie hayes]

OK, then regarding Comitatus specifically...

 

I doubt specific military branches would be held-to for legal purposes, since Comitatus was (i think, correct me if not) written before the AF existed, and you'd want to leave flexibility.

 

And I think since he's been doing it for five years, that the phrase "emergency" is no longer applicable.  There is no invading force.  There is no riot.

 

I just don't see how surveillance of citizens can fall under emergent military force.  And the idea of the Act is, as far as I can tell, to prevent the military from being used against US citizens.  Seems to me Bush is trying to have his cake and eat it too - calls it military action so he can keep POWs, but doesn't call it military when he wants surveillance.

I don't have the text, revision history, etc, but just going by Wikipedia: "The original act referred only to the United States Army. The Air Force was added in 1956, and the Navy and the Marine Corps have been included by a regulation of the Department of Defense." (Link.) So you're right about the age, but it does mention Army, AF, etc, specifically.

 

I agree on the "emergency" part, I'm just saying, one could argue such and such. If, that is, the 'military proper' is involved in this thing anyway (which I doubt).

[Reddy]

That's not true though.  The exploratory Democratic hearings that took place today are an important first step in making sure this debate takes place on the floor, and hopefully in the courts as well.  They had a lot odf scholarly witnesses that opined that the administration's defense here is nearly non-existant in their estimate.  And a good number of Dem congresspersons got on record as being vocally very concerned with the apparent abuse of Executive power.

 

The BushCo pushback begins in earnest next week, with Bush visiting the NSA on Monday (hopefully there will be a big protester turnout), and Gonzales and former NSA director Michael Hayden are also doing interviews Monday and Tuesday.

 

it doesnt matter if they are "on the record" if nobody in america hears it. America needs to hear about the abuses of executive power more than congress does because right now the majority of americans, sadly enough, are not informed enough to realize that this is going on.

 

one thing republicans are good at is mass propaganda. for some reason they are much better at getting the public to hear what they want them to then the democrats are - granted much of this lies in the fact that they are in power at the moment - but at the same time i've seen nothing about the Dems holding an exploratory blah blah on the abuse of power. if the Dems were smart they'd make a big enough fuss about it so that the American people would notice that there's something going on.

 

edit: and i dont mean fuss in the way that NUKE would mean it.

Edited January 21, 2006 by Reddy

[FlaSoxxJim]

Except Dem hearings don't go on the Congressional record.

That is true, but I meant they are on record as speaking their views - if only for the brave souls who listen to C-SPAN archives.

 

I spent the day at work listening to it at any rate.

Edited January 21, 2006 by FlaSoxxJim

[Balta1701]

General Hayden, Deputy Director of Intelligence and former director of the NSA.

 

QUESTION: Jonathan Landay with Knight Ridder. I'd like to stay on the same issue, and that had to do with the standard by which you use to target your wiretaps. I'm no lawyer, but my understanding is that the Fourth Amendment of the Constitution specifies that you must have probable cause to be able to do a search that does not violate an American's right against unlawful searches and seizures. Do you use --

 

GEN. HAYDEN: No, actually -- the Fourth Amendment actually protects all of us against unreasonable search and seizure.

 

QUESTION: But the --

 

GEN. HAYDEN: That's what it says.

 

QUESTION: But the measure is probable cause, I believe.

 

GEN. HAYDEN: The amendment says unreasonable search and seizure.

 

QUESTION: But does it not say probable --

 

GEN. HAYDEN: No. The amendment says --

 

QUESTION: The court standard, the legal standard --

 

GEN. HAYDEN: -- unreasonable search and seizure.

 

QUESTION: The legal standard is probable cause, General. You used the terms just a few minutes ago, "We reasonably believe." And a FISA court, my understanding is, would not give you a warrant if you went before them and say "we reasonably believe"; you have to go to the FISA court, or the attorney general has to go to the FISA court and say, "we have probable cause."

 

And so what many people believe -- and I'd like you to respond to this -- is that what you've actually done is crafted a detour around the FISA court by creating a new standard of "reasonably believe" in place of probable cause because the FISA court will not give you a warrant based on reasonable belief, you have to show probable cause. Could you respond to that, please?

 

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

 

Just to be very clear -- and believe me, if there's any amendment to the Constitution that employees of the National Security Agency are familiar with, it's the Fourth. And it is a reasonableness standard in the Fourth Amendment. And so what you've raised to me -- and I'm not a lawyer, and don't want to become one -- what you've raised to me is, in terms of quoting the Fourth Amendment, is an issue of the Constitution. The constitutional standard is "reasonable." And we believe -- I am convinced that we are lawful because what it is we're doing is reasonable.

Good to know that the guys at the top of the NSA actually have no idea what the Constitution actually says.

 

General Hayden actually did make some interesting points...specifically he basically said that this NSA program isn't some sort of large-scale data mining program, where they're searching everything...it's actually targeted at specific people, but they felt like they had to use a lower standard of evidence than the "Probable cause" cited by FISA as the requirement for a wiretap involving a U.S. citizen.

 

Of course, when Mr. Bush goes around and says that these people are being called by Al Qaeda then, he is clearly and unambiguously misleading in his statements, because by no standard imaginable would a call from even a suspected ally of Al Qaeda not be probable cause for a warrant when the U.S. has declared war on that organization. Therefore, this has to be something else, and they still don't want to give us anything honest.

 

Therefore, if this General isn't lying...we still should be very confused, but at least we know why we're confused. We know that it's not some sort of massive program intercepting the entire internet that wouldn't be practical under FISA...but we still have no idea why they think they couldn't go to Congress and have the law updated, nor do we know who they're targeting or why, but we can rule out people who are actually in direct contact with Al Qaeda in any way, because those would be easily tappable under FISA.

 

A couple of people say these same things Here and Here.

Edited January 24, 2006 by Balta1701

[YASNY]

Here is an excellent site that explains the 4th amendment. The word "reasonable" is scattered liberally throughout. Based on what I read here, the General does know what the amendment says and how it has been interpretted. It's, again, a matter of interpretation.

[FlaSoxxJim]

GEN. HAYDEN: Sure. I didn't craft the authorization. I am responding to a lawful order. All right? The attorney general has averred to the lawfulness of the order.

 

I'm not sure this is going to hold up under scrutiny. Well, the authorzation part, yes. But there is some evidence suggesting that Hayden was central to crafting the policy and setting it in motion in at least a limited fashion even before 9-11. 9-11 provided the excuse for authorizing domestic surveilance that the neocon run government wanted to have in its arsenal even before then.

[Rex Kickass]

Here is an excellent site that explains the 4th amendment. The word "reasonable" is scattered liberally throughout.  Based on what I read here, the General does know what the amendment says and how it has been interpretted.  It's, again, a matter of interpretation.

 

There's a specific law. And a specific process to get the warrant.

 

It isn't necessarily a hard thing to procure, and the Bush administration has not been hampered by FISA court restrictions - seeing as in the entire 28 year history of FISA, fewer than 10 warrants have ever been rejected. The Bush administration has said that the law does not apply to us, even though we are doing things specifically regulated to FISA.

 

Yes the fourth amendment may say things, but there's also the matter of this law - designed to protect fourth amendment rights for US Citizens while enabling the government to do its job. There hasn't been a case of a court gone wild, this is an Administration who has said - we aren't following the law, we aren't going to follow the law. And somehow this is seen as legal.

[FlaSoxxJim]

There hasn't been a case of a court gone wild, this is an Administration who has said - we aren't following the law, we aren't going to follow the law. And somehow this is seen as legal.

 

Well, when you have the Justice Department in your pocket, it seems just about anything can be seen as legal if squint and look just right.

[YASNY]

There's a specific law. And a specific process to get the warrant.

 

It isn't necessarily a hard thing to procure, and the Bush administration has not been hampered by FISA court restrictions - seeing as in the entire 28 year history of FISA, fewer than 10 warrants have ever been rejected. The Bush administration has said that the law does not apply to us, even though we are doing things specifically regulated to FISA.

 

Yes the fourth amendment may say things, but there's also the matter of this law - designed to protect fourth amendment rights for US Citizens while enabling the government to do its job. There hasn't been a case of a court gone wild, this is an Administration who has said - we aren't following the law, we aren't going to follow the law. And somehow this is seen as legal.

 

A law designed to protect a constitutional amendment? okay

[kapkomet]

There's a specific law. And a specific process to get the warrant.

 

It isn't necessarily a hard thing to procure, and the Bush administration has not been hampered by FISA court restrictions - seeing as in the entire 28 year history of FISA, fewer than 10 warrants have ever been rejected. The Bush administration has said that the law does not apply to us, even though we are doing things specifically regulated to FISA.

 

Yes the fourth amendment may say things, but there's also the matter of this law - designed to protect fourth amendment rights for US Citizens while enabling the government to do its job. There hasn't been a case of a court gone wild, this is an Administration who has said - we aren't following the law, we aren't going to follow the law. And somehow this is seen as legal.

And laws passed by Congress do NOT supercede the Constitution.

[FlaSoxxJim]

And laws passed by Congress do NOT supercede the Constitution.

 

Here's where the former snarky Flaxx of old would say, Yes, only the president can supercede the Constitution.

 

Instead, I'll just add to what Rex said about there being no readily acceptible reason for sidestepping the FISA protocol that was specifically set up to deal with this kind of issue.

 

Atrios very eloquently says as much, alluding to Occam's Razor by stating the point that every single one of us are really thinking:

 

Since in the numerous and changing justifications for the illegal acts by our criminal president we have yet to hear any sensible explanation for why they couldn't simply go to the FISA court to obtain warrants, the simplest and most obvious explanation is that they're up to no good.

 

As to how bad the "no good" they're up to, nobody out of the loop can say yet. It can range from not wanting to be bothered with paperwork (unlikely), to trying to use a post-9/11 justification for a pre-9/11 policy, to the fact that they may have actually been using the illegal program to mine for names to submit to the FISA courts in seeking warrants in other cases, to things we haven't even begun to touch on.

 

Regardless of the specifics, the actions are a premier example of the disdain this administration has for the rule of law and for any and all checks on executive power.

 

There is another thread up now along the lines of, "this is why Rome fell." This thread, however, speaks more clearly to the cautionary tale that too many paople refuse to heed.

[kapkomet]

Here's where the former snarky Flaxx of old would say, Yes, only the president can supercede the Constitution.

 

Instead, I'll just add to what Rex said about there being no readily acceptible reason for sidestepping the FISA protocol that was specifically set up to deal with this kind of issue.

 

Atrios very eloquently says as much, alluding to Occam's Razor by stating the point that every single one of us are really thinking:

As to how bad the "no good" they're up to, nobody out of the loop can say yet. It can range from not wanting to be bothered with paperwork (unlikely), to trying to use a post-9/11 justification for a pre-9/11 policy, to the fact that they may have actually been using the illegal program to mine for names to submit to the FISA courts in seeking warrants in other cases, to things we haven't even begun to touch on.

 

Regardless of the specifics, the actions are a premier example of the disdain this administration has for the rule of law and for any and all checks on executive power.

 

There is another thread up now along the lines of, "this is why Rome fell."  This thread, however, speaks more clearly to the cautionary tale that too many paople refuse to heed.

I'm not asking this to be a jerk, I seriously want to know why you (and others) think that there *has to be* evil intent by (almost) everything this administration does.

 

And let's not frame the whole "he lied about the war" argument. Why would this administration be *that* evil to be 'up to something' with every single thing they do?