Feingold calls for Presidential Censure.

[YASNY]

I am pretty sure that the legislative body cannot pass laws taking Constitutionally granted authorities away from other branches of government.  In my view, by creating this Court of Review to supplant judicial process, they have done just that.  A judicial process has been replaced by a joint committee of sorts.  While that joint committee could certainly exist and provide insight, it should not be allowed to clear warrants.

 

How can the judicial process be supplanted when judges are making the decisions?

[NorthSideSox72]

What does that mean?  Three judges is not enough to constitute a court?

Three judges plus a whole slew of other people from various Congressional and Executive bodies and agencies is not a court - it is a joint committee. They want to meet? Fine, they could probably do some good things. But they can't adjudicate warrants or case work, as far as I see it.

[NorthSideSox72]

How can the judicial process be supplanted when judges are making the decisions?

They aren't, in this case. The FISA court, which is a real court, can make those decisions. A joint committee should not, even if some judges are present.

 

The heart of the issue here is that this is putting the wolf in the hen house. The executive and legislative branches should have no say in the final decision on judicial warrants in any case.

[YASNY]

Three judges plus a whole slew of other people from various Congressional and Executive bodies and agencies is not a court - it is a joint committee.  They want to meet?  Fine, they could probably do some good things.  But they can't adjudicate warrants or case work, as far as I see it.

 

In a courtroom, you have one side presenting a case. You have another side arguing opposing viewpoints. Those are the 'other people'. And then, in this case, you have 3 jugdes deciding the matter. Sounds like a court to me.

[NorthSideSox72]

reas YAS's post. this court of review is composed of judicial members. you are justifiying your calling it a kangaroo court by using buzzwords that you havent justified. "avoids due process"? HOW?? and how does it clear warrants? its pretty hard to argue with someone who wont give the actual reasons for their arguement.

Again, please read my posts. You can disagree with my points if you'd like, but I'm not going to bother responding to you any longer if you are just going to insult me.

[YASNY]

They aren't, in this case.  The FISA court, which is a real court, can make those decisions.  A joint committee should not, even if some judges are present.

 

The heart of the issue here is that this is putting the wolf in the hen house.  The executive and legislative branches should have no say in the final decision on judicial warrants in any case.

 

They don't have any say, beyond agruing their case. That is the purpose of the Court of Review. Keyword in the phrase 'Court of Review' being Court.

[NorthSideSox72]

In a courtroom, you have one side presenting a case.  You have another side arguing opposing viewpoints.  Those are the 'other people'.  And then, in this case, you have 3 jugdes deciding the matter.  Sounds like a court to me.

But it it outside the judicial branch of government. Do you not see the danger in that? You are allowing the agencies that want the warrants to be part of deciding if they are acceptable or not. To me, that clearly violates the stated purpose of the need for warrants in the first place. If the FBI can request a warrant AND be part of granting said warrant, than why involve anyone else at all? You may as well let them do as they please.

[YASNY]

Oh. One more point. The SCOTUS decided not to hear any challanges to this law. That tells me that they consider this to be constitutional and not a worthy challenge.

[YASNY]

But it it outside the judicial branch of government.  Do you not see the danger in that?  You are allowing the agencies that want the warrants to be part of deciding if they are acceptable or not.  To me, that clearly violates the stated purpose of the need for warrants in the first place.  If the FBI can request a warrant AND be part of granting said warrant, than why involve anyone else at all?  You may as well let them do as they please.

 

It's NOT outside the judicial branch when you have judges hearing the arguments and making the decision. Is the SCOTUS going to weaken their own branch of the government if they believed the process was outside the judicial branch? Your arguments make no sense. The judicial branch is inherently involved in this situation.

[NorthSideSox72]

Oh.  One more point.  The SCOTUS decided not to hear any challanges to this law.  That tells me that they consider this to be constitutional and not a worthy challenge.

Maybe. Sometimes that is true. But SCOTUS also sometimes avoids big fights that they don't want to get dirty with. Example: despite all of the laws passed at various level on gun control, and despite all the federal court challenges, SCOTUS has avoided the issue (despite its Constitutional importance) entirely since the mid-19th century.

[YASNY]

Maybe.  Sometimes that is true.  But SCOTUS also sometimes avoids big fights that they don't want to get dirty with.  Example: despite all of the laws passed at various level on gun control, and despite all the federal court challenges, SCOTUS has avoided the issue (despite its Constitutional importance) entirely since the mid-19th century.

 

Let's not get off on a gun control tangent.

[NorthSideSox72]

It's NOT outside the judicial branch when you have judges hearing the arguments and making the decision.  Is the SCOTUS going to weaken their own branch of the government if they believed the process was outside the judicial branch?  Your arguments make no sense.  The judicial branch is inherently involved in this situation.

I know they are involved. I said that. I am saying, and have said multiple times now, that the problem is the presence of non-judicial personnel in the decision making process for warrants. That makes it a non-judicial body, and more specifically, a joint body. Those joint bodies, especially when one of the bodies is the requestor for the warrant, should nto be in a position to make those decisions.

[YASNY]

I know they are involved.  I said that.  I am saying, and have said multiple times now, that the problem is the presence of non-judicial personnel in the decision making process for warrants.  That makes it a non-judicial body, and more specifically, a joint body.  Those joint bodies, especially when one of the bodies is the requestor for the warrant, should nto be in a position to make those decisions.

 

Actually, that is another tangent. This discussion started when I said the current administration was not acting illegally. However, I see your point.

[NorthSideSox72]

Let's not get off on a gun control tangent.

No no, not tyring to - just wanted to provide an example and that was the first one to come to mind.

[NorthSideSox72]

Actually, that is another tangent.  This discussion started when I said the current administration was not acting illegally.  However, I see your point.

Certainly, the administration is not entirely at fault here. I do think the warrantless searches are illegal, and the administration is the main actor. But, there are complicated things under the hood here, as we are discussing - this is not a tangent, but all part of one issue. Agencies like NSA and FBI are, and should be, bulldogs. They should be relentless in trying to get the info they need. It is the place of the courts to pull the other direction, for equally good reasons. Such is the nature of the adversarial model of law.

[YASNY]

Certainly, the administration is not entirely at fault here.  I do think the warrantless searches are illegal, and the administration is the main actor.  But, there are complicated things under the hood here, as we are discussing - this is not a tangent, but all part of one issue.  Agencies like NSA and FBI are, and should be, bulldogs.  They should be relentless in trying to get the info they need.  It is the place of the courts to pull the other direction, for equally good reasons.  Such is the nature of the adversarial model of law.

 

When a law is passed by the legislative branch, signed by a president (Carter, in this case as FISA was enacted in '78) and reviewed by the judicial branch, it is not illegal.

[YASNY]

JIm must be writing a book.

[NorthSideSox72]

When a law is passed by the legislative branch, signed by a president (Carter, in this case as FISA was enacted in '78) and reviewed by the judicial branch, it is not illegal.

When warrants are allowed, or warrant-necessary issues are agreed upon outside a judicial body, even if this is according to a legislated law... it is unconstitutional, and therefore, illegal.

 

I REALLY would like SCOTUS to look into this in some way, though I am not sure how it would be brought to court.

[NorthSideSox72]

JIm must be writing a book.

Yeah, he's been writing for a looooong time now. This should be interesting.

[YASNY]

When warrants are allowed, or warrant-necessary issues are agreed upon outside a judicial body, even if this is according to a legislated law... it is unconstitutional, and therefore, illegal.

 

I REALLY would like SCOTUS to look into this in some way, though I am not sure how it would be brought to court.

 

By definition, my most recent post, it's not illegal. The SCOTUS decided the issue wasn't worthy of review. This is a case of all aspects of checks and balances being brought into the mix, and the law stands. If the law stands, it's not illegal.

[NorthSideSox72]

By definition, my most recent post, it's not illegal.  The SCOTUS decided the issue wasn't worthy of review.  This is a case of all aspects of checks and balances being brought into the mix, and the law stands.  If the law stands, it's not illegal.

A law is enforceable if it stands, unless/until a court decides otherwise - you are correct there. But, I think it is also true that any law or action in direct contravention of the Constitution is also illegal, even if it stands prior to a court challenge.

 

Obviously, others don't see this Constitutional conflict. Some do, some don't. For those of us who do, this is clearly illegal. Yet again, I would really like to see this whole mess go before SCOTUS. They rejected review of one particular aspect, or one angle if you will, on the issue. But the real picture would become more clear if someone could bring a case on behalf of the subjects of these searches (surveillance). That would be the true test.

[YASNY]

A law is enforceable if it stands, unless/until a court decides otherwise - you are correct there.  But, I think it is also true that any law or action in direct contravention of the Constitution is also illegal, even if it stands prior to a court challenge.

 

Obviously, others don't see this Constitutional conflict.  Some do, some don't.  For those of us who do, this is clearly illegal.  Yet again, I would really like to see this whole mess go before SCOTUS.  They rejected review of one particular aspect, or one angle if you will, on the issue.  But the real picture would become more clear if someone could bring a case on behalf of the subjects of these searches (surveillance).  That would be the true test.

 

Until that happens, this is the law of the land. Therefore, the administration did nothing illegal.

[FlaSoxxJim]

Oh.  One more point.  The SCOTUS decided not to hear any challanges to this law.  That tells me that they consider this to be constitutional and not a worthy challenge.

No, even York's piece doesn't go that far in its conclusion. Choosing not to intervene is in no way the same as the same as the Court's upholding a ruling.

 

I don't know that the three justice Court of Review here is necessarily the heart of the problem, but at the same time I disagree with your description that there are two sides being argued in the setting York laid out. In that sense, yes, this does seem a bit of a "kangaroo court".

 

The three justices (Silberman, Leavy, and Guy) are the "super secret appeals court". Solicitor General Theodore Olson (who opined that the FISA ruling was "inexplicable") is obviously arguing from the administration's position. Deputy. AG Thompson, Cheney lawyer David Addington, and John Yoo form Justice are likewise arguing from the administration's position.

 

Are you concluding that the unidentified "few other department staffers" and "one official from the FBI" were there arguing in favor of the lower FISA court opinion?? Do you think an FBI agent who has been hamstrung by FISA restrictions is going to argue in favor of FISA oversight here? Clearly there was no representation of the lower FISA court here, so I disagree with your interpretation of this situation as being two sides of a debate laid out for judicial review.

 

That is not to say I disagree that this can represent some more secure legal footing for the spying program. But, it sadly is another example of the Gonzales "evolving defense." Up until this National Review piece, the Administrations two-pronged evolving defense has relied on the AUMF and inherent constitutional wartime Executive power. In fact, a point was made back in December/Januarythat the Patriot Act was not where the authority derived - in hindsight that was probably said to try to get the Act reauthorized even as the NSA mess continued to blow up.

 

But the central argument here is that Patriot is in fact the origin of this expanded executive power, and FISAs attempt to rein in the White House and NSA flew in the face of the relaxed provisions of Patriot.

 

Some out there are no doubt more familiar with the original provisions of Patriot I. What is the wording of the provision that pulled the rug out from under FISA?

 

If this was such a slam dunk defense of the program, why was it not presented as the legal basis instead of AUMF and the power of the unitary Executive?

 

Moreover, if it does turn out that Michael Hayden of NSA actually initiated some form of the domestic spying program pre-9/11 with tacit support of the adminsitration (as has been alleged, but with frustratingly little mainstream media followup), neither Patriot I, nor the 9/18/2001 AUMF, nor wartime Executive power can be used as a defense.

 

Sure, it's a hypothetical at this stage, but YAS, would you in that situation concede the illegal origins of the program?

 

The NeoCon facets of the GWB administration, including Hayden, wanted the surveillance powers of NSA to be expanded long before they had 9/11 to justify it. If it turns out they took it upon themselves to expand their reach pre-9/11, you can bet they will do their best to obfuscate and cling to 9/11 as justification. And truly I don't see GWB as the one pulling the trigger on decisions like this, merely the titular executive that has to sign off on the programs. But if you surround yourself with vipers you are going to get bit.

Edited March 21, 2006 by FlaSoxxJim

[FlaSoxxJim]

JIm must be writing a book.

Yeah . . . sorry.

[YASNY]

No, Jim, I wouldn't 'concede' the illegal origins of the program. In fact, GWB, had nothing to do with the origins of the program. He simply followed the laws on the books to do his best to protect the American people.

 

This issue came to a head in 2002, not pre-9/11/2001. The proper avenues were followed as written into law, and it was decided by the judicial branch that the administrative branch was not acting beyond the scope of it's authority and the law written by the legislative branch was upheld. Slam Dunk.