Memo Questions Domestic Monitoring Excuse By KATHERINE SHRADER, Associated Press Writer
Fri Jan 6, 9:24 PM ET
WASHINGTON - A memorandum from two congressional legal analysts concludes that the administration's justification for the monitoring of certain domestic communications may not be as solid as President Bush and his top aides have argued.
Yet two attorneys in the organization's legislative law division, Elizabeth Bazan and Jennifer Elsea, say the justification that the Justice Department laid out in a Dec. 22 analysis for the House and Senate intelligence committees "does not seem to be as well-grounded as the tenor of that letter suggests."
The Bush administration says it was legal under Article 2 of the Constitution, which grants presidential powers, and Congress' September 2001authorization to use military force to conduct the war on terror.
But the memo concludes: "It appears unlikely that a court would hold that Congress has ... authorized the NSA electronic surveillance operations here under discussion."
Responding to the report, Justice Department spokesman Brian Roehrkasse said the activities "were conducted in accordance with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties."
The domestic monitoring has raised questions about the appropriate powers of Congress and the executive branch. Congress' legal advisers are saying lawmakers should have a role in overseeing such activities.
Sen. Frank Lautenberg (news, bio, voting record), D-N.J., who was among those who requested the research service's memo, said it contradicts Bush's claim that the program was legal.
"It looks like the president's wiretapping was not only illegal, but likely targeted innocent Americans who did nothing more than place a phone call," he said.
The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by U.S. citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said.
The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. 11, 2001, terrorist attacks, which focused on authorizing the president to use military force.
TimmyBoy said:Come on, let's be real here. Bush violated the Constitution and the law but it doesn't matter because the constitution doesn't matter. The truth of the matter is that the government will just do whatever it wants and act above the law and their is no accountabilty. The government has no respect for the constitution and the rule of law. They treat the constitution as a sham:
http://news.yahoo.com/s/ap/20060107/ap_on_go_co/domestic_spying
Stinger said:Congressional anaylst? Not surprising as the congress would love to be successful in this power grab. However the court cases INCLUDING THE FISA COURTS OWN AGREEMENT are clearly on the Administrations side.
And your silly little "this government will do anything it wants" is also belied by the facts and the lengths the Administration went to to make sure they were on solid legal grounds so if you want to argue the legal points have at it but the incenuations that the Adminstration was trying to knowning break the law are false, bordering on outright lies since the clear evidence otherwise has been posted over and over and remains unrebutted.
I will after all the court cases including the findings of FISA itself that have been posted over and over and over have been rebutted.slibertarian_knight said:Rebut THIS:
libertarian_knight said:The Preisdent has power in Article II, the COngress has power over the President in Article I, section 8 especially.
M14 Shooter said:Congress has power over the president in certain things - checks and balances. There are also certain things that the President has over the Congress - more checks and balances. But not -everything- the President does is subject to a 'check' by Congress, and vice versa.
Part of the situation here revolves around executive orders given by Bus and hs predecessors -- are these orders valid, and if so, based on what?
Executive orders have several levels of legititimacy-
-An EO based on an inherent power of the President, backed by a resolution from Congress (strongest)
-An EO based soley on the inherent power of the president
-An EO not based on any inherent power of the President, but on a power granted to some other branch of government
-An EO based not based on any power granted to anyone under the Constitution. (weakest)
The administration is arguing the first scenario.
Thats true only iflibertarian_knight said:This INCLUDES, FISA Courts, the NSA, the DOJ, the Treasury, The Army, Navy, USSS, etc. The President CAN NOT Authorize the DOJ or NSA or Army, or CIA to do anything the Congress has prohibited.
Thats true.The President is CiC but congress COULD legislate that all military service must be conducted by people over age 75. (absurd I know, but within the realm of congress to do, since the regulate the Army and Navy).
We all know that in times of war, the President has significant lattitude in his powers, especially where national defense is concerned.The President is charged with Defending and Preserving the Consitution of the United States and FAITHFULLY EXECUTING THE LAWS OF THE UNITED STATES. Something he is CLEARLY NOT DOING. Ignoring FISA, and ignoring the Tortue Amendment is NOT faithfully executing the laws, not in the least.
Congress cannot order anyone in the military to do anything.libertarian_knight said:The USS nimitz thing is interesting, because I think, that should congress have authorized it as part of the Navy, they loose control while it exists. However, they could order the Nimitz to return to port, and be decomissioned could they not?
But... one of thise powers is the role of the CinC. Remember that everything we're discussing here is related to national security, not law enforcement. Certainly, congress and the President work together in national security efforts, but the President, as CinC has the power to make a LOT of calls on his own.The President has very few EXPLICIT POWERS, and those powers that are implicit can be legislated by congress.
Its is true that the Congress created the various departments, and that Congress has a role in writing the rules for these departmets. But, what is NOT true is that Congress has much say in the decisions these departments make -- especially where national defense and foreign policy are concerned.Congress can not appoint ambassadors themselves, and they are not CiCs, but of the implicit powers of the president, MOST actually stem from Congressional Establishment of an Agnecy or Department to which the Preisdent is executive of, i.e. the NSA, DOJ, etc.
Thats because they fall under the legislative branch, not the executive branch (like the DoD). The President can make up psotiions that the Congress has no control over as well.Congress can also make departments and positions in the government which the President has no authority over. (CBO, CRS etc).
But again - the power to give those commands comes not from Congress, but from Article II. The question remains -- does the President, as CinC, during wartime have the inherent power to collect intel on the enemy? Of course he does. Does the fact that the enemy might be someone inside the US change this? No - all enemies, foreign or domestic.The President's so called "Inherent implicit authority" to use the NSA to spy on US citizens, ONLY COMES OUT THE THE RULES AND LAWS the Congress created when using its' EXPLICIT Constitutional Authority to create such Departments.
Its inherent in the structure of our government. Each branch has a way to put some sort of limit on the other, so that none of them gain too much power. I'm surprised you aren't awar of this...?I don't really know where this "separation of powers" idea comes from, or the "balance of power," either. It's junk.
National defense is, clearly, one of the areas where the executive was intended to have more power. Congress gives the President the tools to fight, and the President fights how he sees fit. Congress has absolutely NO command authority.No way ONE MAN was intended to have as much power as the legislature. No Way one man, with few EXPLICT POWERS< was supposed to have as much power than 575 People with NUMEROUS EXPLICIT POWER.
His role as CinC isnt one of them.Even some of the FEW explicit powers the president DOES have, are also subject to Senate and Congressional Approval or Override.
M14 Shooter said:Congress cannot order anyone in the military to do anything.
They can refuse to fund it, but they cannot issue orders that the CO must follow.
But... one of thise powers is the role of the CinC. Remember that everything we're discussing here is related to national security, not law enforcement. Certainly, congress and the President work together in national security efforts, but the President, as CinC has the power to make a LOT of calls on his own.
One of them is the collection of intel regarding enemy operations. Seeing as that's the purpose of the 'warrantless searches', and that the enemy does not take the traditional form of a state - meaning that people inside the US, even US citizens might be the enemy - I am more than willing to grant the CinC leeway here.
Its is true that the Congress created the various departments, and that Congress has a role in writing the rules for these departmets. But, what is NOT true is that Congress has much say in the decisions these departments make -- especially where national defense and foreign policy are concerned.
Thats because they fall under the legislative branch, not the executive branch (like the DoD). The President can make up psotiions that the Congress has no control over as well.
But again - the power to give those commands comes not from Congress, but from Article II. The question remains -- does the President, as CinC, during wartime have the inherent power to collect intel on the enemy? Of course he does. Does the fact that the enemy might be someone inside the US change this? No - all enemies, foreign or domestic.
Its inherent in the structure of our government. Each branch has a way to put some sort of limit on the other, so that none of them gain too much power. I'm surprised you aren't awar of this...?
National defense is, clearly, one of the areas where the executive was intended to have more power. Congress gives the President the tools to fight, and the President fights how he sees fit. Congress has absolutely NO command authority.
His role as CinC isnt one of them.
IMHO, rather than figthing Bush, the lunatic fringe liberals in Congress should work WITH him to resolve these issues. His position is that current law ties his hands, and so he has to act on his own authority -- rather than the infantile partisan screams for impeachment, Congress, with one voice, should ask 'what can we do to make things better?"
libertarian_knight said:The President is charged with Defending and Preserving the Consitution of the United States and FAITHFULLY EXECUTING THE LAWS OF THE UNITED STATES. Something he is CLEARLY NOT DOING. Ignoring FISA, and ignoring the Tortue Amendment is NOT faithfully executing the laws, not in the least.
Congress needs to smack Bush in line.
Stinger said:Why do you keep saying that when it has been shown over and over that the courts including the FISA court itself say that FISA or any other legislation cannot infringe on the Presidents constitutional power to do exactly what he is doing?
Congress needs to mind it's buiness and stop trying to grab power from the President.
I think you'd have a hard time supporting that argument. You can try if you like. Seems to me the Constitution set the three branches of government up as co-equal, with Article I being Congress simply because someone had to come first.Don't forget, the First and pre-eminant article of the Constitution is Article I, that of the legislature. There is a reason the framers put the legislature first and foremost.
Right., Congress gives the President the means with which to fight.Even being CiC can be limited by Congress, because they establish and fund the armies etc, and just as such, can decomission or defund them.
M14 Shooter said:Every president, since Nixon, who vetoed it, has held that the WPA is unconstitutional. They go along with it for expedience, but they still claim that holding. The basis of that argument is that the CinC has the espressed, plenary power to command he military, and Congress has no expressed power to limit the power of the CinC when acting as the CinC.
I think you'd have a hard time supporting that argument. You can try if you like. Seems to me the Constitution set the three branches of government up as co-equal, with Article I being Congress simply because someone had to come first.
Right., Congress gives the President the means with which to fight.
This does not in any way grant operational control of the ability to limit operational control of that means.
Congress has the power to declare war; the power to declare war does not give Congress command authority over the military in peace OR war.
You said that.Sure someone had to come first, but why the legisature? did they draw straws? no. The Consitution vested most of the powers, and the most important ones in Congress, and it wasn't by chance,
libertarian_knight said:First, the Artilces of Confederation. Many of the same people that eventually wrote the US COnsitution, wrote the Articles also. (I know the Articles have no real legal bearing currently, but it shows a methodology used by the Founders. Much like "Wall of Separation fo Church and State had not real legal bearing as one of Jefferson's Personal writings until the supreme court noted and used it in a ruling as an intent of the Founders'.) The First Incarantion of the United States of America has a significantly weaker "President" if it could really be called a preisdent at all. (since the word shows up only once, and the position only served one year, and the person only one year in every three, and had no "power.")
There was, essentially no functional executive branch. This is what many of the poeple who went on to found the US Constitution had desried. Now, given that, there is the scope of the debate in the Federalist and counter papers, much of which concerned the powers of the proposed legislature, and the extent of the expansion and creation of a distinct Executive Branch. A very significant portion of the debate was the extent of powers afforded to the executive, which would have to progress from no power, to some other level of power.
The country rebelled from a country with an absolute executive, and therefor it seems grossly illogical, especially given the writings of: the Declaration of Indepenence and its' emphasis on representation, the Articles of Confederation and it's absence of an executive, The Publically disceminated Publius Writings which were designed in part to build support for an executive branch (which showed the country was disfavored to any executive, let alone a strong one), the writen ratifications of the US Constitution by the Member States and their statements therein contained, and the writings of those present in the Consitutional Convention, that they would choose an executive branch approaching anything toward the level of Power enjoyed by the Britsh Crown.
This country was founded without an executive branch, and having made a realization, that, especially for warfare, an executive would be needed, they included one. However, this executive was supposed to be held to Execute the will of Congress in its Consitutionally Authorized Powers, and those powers specifically vested into the President.
Again, it is clear from the limitations placed upon the use of most presidential powers, require either the consent of congress, or the advice and consent of the senate, that the President was meant, to some way be impeded by acts of Congress, and furthermore it is by specific acts of Congress that Presidential Authority can be stripped from the President, should the parts of Congress having found the Preisdent in violation of Treason, Bribery, or other high crimes and misdemeanors (Also note that the Congress has the Authority to define what high crimes and misdemeanors are, including Perjury, a crime not specifically mentioned in the Consitution, was used as a mechanism for impeachment of the former President.)
Through Logical inference contained solely within the Constitution itself, it is evidence that the majority of power is vested into the Congress, inclduing the power to Declare War, Lay and Collect Taxes, and Establish and fund the Army and Navy, to name a few. With only a realtive few limiting requirements on how Congress can interact with the other branches of government, several of which regard monetary compensation.
So I have gave you some sources of information, I gave an examination of the Consitution by itself, the DoI, Federalist Papers (which spoke of both the powers and limits of an executive branch).
Have I given specific quote? no. For one I don't have most of the info readily available, and would take some time to go back through waht I have already read before. With the exception of the DoI, AoC, and USConst being pretty short, most of the stuff takes some time to go back through, particularly "Publius'," Jefferson's, Washington's, Henry's, Mason's and Franklin's Writings. Many of whom expressed high importance on representative government and limitation or absence of an executive branch.
Lefty said:C'mon oldreliable, we addressed this before. You're taking a couple words and saying "oh look, it doesn't prove anything because they said 'maybe.'" Since these individuals are not the ones officially judging the president's actions they will say "probably" and what have you in respect to "innocent until proven guilty." If he was guilty until proven innocent than the wording would be different. But you can't take a few words and present it has proof that this means nothing.
oldreliable67 said:The CRS memo is quite consistent with the range of opinions of the other legal scholars whose opinions I have cited in other posts: some believe the admin's position to be well-grounded, some do not. Pros and cons alike are almost all are couched in terms of "maybes", "probably", and "appears".
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