quote:President Bush effectively blocked a Justice Department investigation of the National Security Agency's warrantless surveillance program, refusing to give security clearances to attorneys who were attempting to conduct the probe, Attorney General Alberto R. Gonzales said yesterday.
Bush's decision represents an unusually direct and unprecedented White House intervention into an investigation by the Office of Professional Responsibility, the internal affairs office at Justice, administration officials and legal experts said. It forced OPR to abandon its investigation of the role Justice officials played in authorizing and monitoring the controversial NSA eavesdropping effort, according to officials and government documents.
Article goes on to give the Admin/GOP response which is that the origin of the probe was political anyway (since a bunch of Dems and one independent had called for it). And besides, senior people in the Adminstration (including Alberto Gonzales) review the program every 45 days to be sure it's not straying into illegal territory. Arlen Spector says that every clearance granted raises the probability of leaks.
Doesn't say much for their view of integrity at Justice (or at least of OPR within Justice), or of their own ability to conduct good background checks.
Or, of course, it's just possible that the thing they are protecting is their own backsides.
Posted by Morbo (Member # 5309) on :
It's CYA all the way.
quote:"In all those years[ 31 years], OPR has never been prevented from initiating or pursuing an investigation."--OPR chief lawyer, H. Marshall Jarrett
So this is the only OPR investigation that was stillborn. At Bush's behest. I guess he does believe in abortion. And the "it's too classified" excuse is lame--OPR has handled information "classified at the highest levels" according to Jarrett. The next excuse of limiting access to a few select individuals doesn't fly either:
quote:Jarrett noted that clearances were granted to lawyers and agents from Justice and the FBI who were assigned to investigate the original leak of the NSA program's existence to the media. He also noted that numerous other investigators and officials -- including members of Congress and the members of a federal civil liberties board -- had been granted access to or had been briefed on the program.
It's a White House white-wash, alright. If Senate Judiciary Committee chairman Arlen Specter would only have the guts to keep after the administration, instead of talking tough one week then backing down the next! Posted by Dan_raven (Member # 3383) on :
Since when do suspects get to pick which police are allowed to investigate?
"Yeah, I know you think I robbed the Quickie-mart. I want my cousin Vinny to be the cop in charge of the investigation."
ps. Actually, this may be a tactic by Specter. If he were to come out swinging hard at Gonzales over this, then he loses Republican support. On the other hand, he forces Gonzales to admit this is what happened, then he leaves it to the press to dig up the facts, and to attack the White House. If its an attack that has momentum, he can come back and take credit for uncovering the cover-up. If it flips and flops like the banking transaction scare, he is clear.
Posted by Tatiana (Member # 6776) on :
This is so scary! Bush is scary! When is this guy leaving office? Please let it be soon. This reminds me of the Stasi.
Posted by Dagonee (Member # 5818) on :
quote:Since when do suspects get to pick which police are allowed to investigate?
Yeah, but this wasn't a criminal investigation, so your analogy doesn't really apply.
quote:This reminds me of the Stasi.
Yep. Just like the Stasi. I'm sure you're quaking in your home right now waiting to be picked up for your disloyal thoughts.
What's that? You feel safe saying bad things about the President of the country under an identity easily traced to your real name?
Not very much like the Stasi at all, then.
Posted by Chris Bridges (Member # 1138) on :
Nope, because he doesn't need to worry about us. Why pick us up for disloyalty when it doesn't matter what we think?
I don't think we've reached Bush-as-dictator yet. I do think that this adminstration is chugging along a dangerous road of top-heavy power and unaccountability.
Dagonnee, before the inevitable begins and this thread turns into an argument over whether this was legal or not -- I have no doubt it was legal, but that's not what people in the thread are going to be upset over -- I'd be interested in hearing your take on it. Twice, actually; once as a lawyer and once as a United States citizen.
Posted by Dagonee (Member # 5818) on :
Unaccountability? Bush has obeyed the SCOTUS rulings that have gone against him. His spending is decided by Congress. There's an election in 4 months and he'll be out of office in 2 and a half years.
Posted by Katarain (Member # 6659) on :
I wonder if Bush'll try to scare the country into staying the course with him at the helm. Or he'll just make an executive decision to abolish term limits and declare himself dictator for life.
It'll never be over!!
Posted by Dagonee (Member # 5818) on :
quote:Dagonnee, before the inevitable begins and this thread turns into an argument over whether this was legal or not -- I have no doubt it was legal, but that's not what people in the thread are going to be upset over -- I'd be interested in hearing your take on it. Twice, actually; once as a lawyer and once as a United States citizen.
Hatrack is no longer a place where I feel it productive, fun, or safe to discuss certain aspects of my opinion on politics.
Posted by Chris Bridges (Member # 1138) on :
Fair enough, but I'm sorry to hear it.
Posted by Morbo (Member # 5309) on :
Kat, let's not get hysterical. Bush, for all his faults, has given no indication of defying the 2-term amendment (whichever it is.)
Yes, Dag, Bush has obeyed SCOTUS rulings. But he has certainly demonstrated unaccountabilty in his and his aides very broad views and policies of over-arching executive powers. Like the laughable interpretaion that the narrow congressional vote to go to war in Afghanistan was really a vote authorizing him to bypass FISA.
And his use of signing statements to neuter laws he disagrees with, like McCain's torture bill. And dozens of other ways Bush has expanded the power of the president.
Surely you see that unaccountable is a polite way to phrase "massive power grab?" You said yourself in the stem cell thread that Bush has had "a remarkably pliant congress of his own party for the 5 and a half years he's been in office." So if he's not accountable to Congress, isn't that halfway to unaccountable?
Posted by Morbo (Member # 5309) on :
quote:Originally posted by Dagonee: Hatrack is no longer a place where I feel it productive, fun, or safe to discuss certain aspects of my opinion on politics.
I'm sad to hear that as well.
Posted by Dagonee (Member # 5818) on :
quote:Yes, Dag, Bush has obeyed SCOTUS rulings. But he has certainly demonstrated unaccountabilty in his and his aides very broad views and policies of over-arching executive powers.
Accountability isn't about how much power one has, it's about who one has to account to for its use and how. We have safeguards in place, safeguards that are fully operational and working. These include Congress, the courts, and the people.
quote:Like the laughable interpretaion that the narrow congressional vote to go to war in Afghanistan was really a vote authorizing him to bypass FISA.
The Supreme Court - a majority including both liberals and conservatives - interpreted that bill to authorize the indefinite detention of American citizens with minimal judicial review and no criminal proceedings. Given that as a precedent, it's certainly not a reach to conclude that a bill whose goal is to prevent another attack in the U.S. by use of military operations would cover signal intelligence into the U.S.
To legitimately call it laughable, you have to somehow account for the SCOTUS ruling in Hamdi.
quote:And his use of signing statements to neuter laws he disagrees with, like McCain's torture bill. And dozens of other ways Bush has expanded the power of the president.
How is it "expansion" to do something done hundreds of times by the last three presidents?
quote:You said yourself in the stem cell thread that Bush has had "a remarkably pliant congress of his own party for the 5 and a half years he's been in office." So if he's not accountable to Congress, isn't that halfway to unaccountable?
Not in a democracy. The people have put an undivided government in place and have the ability to hold all of them to account.
Posted by Chris Bridges (Member # 1138) on :
Only indirectly -- by voting them out after they screw up, or by voting out representatives who will then try to hold others to account if they are not stonewalled or simply ignored. The closest thing to an immediate method of calling an adminstration to task is the press.
I don't claim that anything that has been done by this administration has been illegal or even something never performed by other adminstrations. I don't think Republicans are doing anything different than what Democrats have done in the past (although I suspect they do it harder ). But, as I did then, I can express my dismay and fear that this country is moving in a direction that I believe to be ethically wrong.
Posted by TomDavidson (Member # 124) on :
Dag, do you believe this direction to be ethically wrong?
Posted by Dan_raven (Member # 3383) on :
Dag, I bow to most points of law when you comment, but I disagree that my analogy was wrong. You claim that this was not a crimminal investigation, but it was an investigation to determine if anything crimminal was going on.
Sure, my analogy could be more accurate--"We have a video tape of you taking money from the Quickie Mart till. We think you robbed it." said the police. "No I didn't. It was perfectly legal, at that time, for me to take that money. I was going to deposit it in the bank for Mr. Quickie." the young man answered. "We need to investigate this to make sure you were not robbing the place." the police respond. "OK," said the youth, "but I think my cousin, Sgt Vinny, who owes me $500 for last month's rent, should be the cop who does the investigation."
But the flavor is the same as above. President Bush gets to choose who determines if what he is doing is legal. That is a major conflict of interest.
Further, he didn't tell us the truth when the investigation was first denied. While this is not illegal, it does demonstrate the lack of facts many people find worrisome about this administration. When President Bush says, "Trust me, we made sure its legal" we find it harder and harder to trust him.
Posted by Dagonee (Member # 5818) on :
quote:it was an investigation to determine if anything crimminal was going on.
No, it wasn't.
Posted by Dan_raven (Member # 3383) on :
Then what they were investigating
Posted by Dagonee (Member # 5818) on :
To see if the lawyers who advised Bush gave proper legal advice. They are a Professional Responsibility Office - they don't do criminal investigations.
And, to be clear, there's lots of improper legal advice that does not give rise to criminal liability.
Posted by Kwea (Member # 2199) on :
Dag....you have no problem with the way this went then? If this is a non-issue event, why is there an office to investigate things like this at all?
Was Bush right to stop their investigation before it started?
Posted by Dan_raven (Member # 3383) on :
So what your saying Dag is this is more of an Enron type investigation thing. FTC shows up at Enron's door and says, "We want to take a look at your books to make sure you're accounting is legit." and Ken Lay answers "Nope. Go away. We have a Anderson Schmidt accounting working for us. They'd never do anything illegal for us, no matter how much we pay them. Trust us."
Posted by TomDavidson (Member # 124) on :
Dag, I'm just curious what recourse, in a government with as strong an executive branch as you seem to favor, the populace would have to punish and research wrongdoing by that branch in between election years.
Posted by Bob_Scopatz (Member # 1227) on :
Given our government's history and structure, I'm extremely uncomfortable with the Justice Department investigating the Executive branch in the first place. I realize that there may be highly-skilled, a-political technocrats conducting the investigation, but there's still the USAG at the top of the pile and various appontees between the investigators and anything resembling full disclosure.
To be frank, I'd rather that an independent special prosecutor be appointed.
I'd never heard of this office within the JD before this article so I'm not at all clear on their mandate. If they found evidence of criminal activity, for example, would they be required to turn that part of the investigation over, and if so, to whom? Or could they be told that they'd overstepped their authority and that'd be the end of it?
Perhaps Justice is another function I should add to my list of things that we should treat like we do the Fed -- run by technocrats entirely.
Anyway, it's no secret that I'm prepared at all times to assume the worst motives behind Mr. Bush's actions. In this particular case, if they truly feel this was an investigation launched by partisan politics, wouldn't they WANT it to be conducted by an agency they have so much control over? I mean, the alternative to squashing the whole thing IS having it come up again as a Congressional mandate, special prosecutor, etc., isn't it? Depends on if the people who sponsored this effort have enough votes to get something started along an alternative path.
Posted by Dagonee (Member # 5818) on :
quote:Dag....you have no problem with the way this went then?
I didn't say that.
quote:So what your saying Dag is this is more of an Enron type investigation thing. FTC shows up at Enron's door and says, "We want to take a look at your books to make sure you're accounting is legit." and Ken Lay answers "Nope. Go away. We have a Anderson Schmidt accounting working for us. They'd never do anything illegal for us, no matter how much we pay them. Trust us."
No, that's not what I'm saying at all.
Bush was not the one being investigated by this. Ken Lay is not imbued with executive power over government investigations.
This is the equivalent of Ken Lay telling someone in Enron to stop looking into their relationship with a particular partner.
Your analogy is flawed in numerous ways. I pointed it out, simply to make it clear that the particular allegation being made were inaccurate.
I have specifically not ventured an opinion on 1) the NSA program except that it may be constitutional; 2) on whether the classifying of information in such a way that OPR cannot conduct its investigation into the professional conduct of justice department lawyers is a desirable act, except to say that it is not the same as a civilian using illegal influence to control law enforcement investigations; and 3) whether I think the current balance of power between the branches is ideal except to say that Bush is clearly not "unaccountable."
quote:Dag, I'm just curious what recourse, in a government with as strong an executive branch as you seem to favor, the populace would have to punish and research wrongdoing by that branch in between election years.
Please be clear. You don't know how strong an executive branch I favor nor what steps I favor for enforcing accountability.
I have specifically not ventured an opinion on 1) the NSA program except that it may be constitutional; 2) on whether the classifying of information in such a way that OPR cannot conduct its investigation into the professional conduct of justice department lawyers is a desirable act, except to say that it is not the same as a civilian using illegal influence to control law enforcement investigations; and 3) whether I think the current balance of power between the branches is ideal except to say that Bush is clearly not "unaccountable."
It's a rather simple principle I wish I could make clear to you: When I venture a particular opinion, especially as regards to the Bush administration, I am choosing the extent of what I say very carefully. When I defend a particular person or entity from a particular charge, I am not making a blanket declaration that the person or entity always acts perfectly.
Posted by DarkKnight (Member # 7536) on :
Dagonee, when you venture opinions about the Bush administration they must be negative in nature or else you will be pounced on immediately.
Posted by Morbo (Member # 5309) on :
OK, who was on watch? You missed one! *pounces on DarkKnight's Bush apologia*
Posted by TomDavidson (Member # 124) on :
quote:It's a rather simple principle I wish I could make clear to you: When I venture a particular opinion, especially as regards to the Bush administration, I am choosing the extent of what I say very carefully.
Oh, I know that. I just wish you'd show some more guts occasionally. Does it really not occur to you that the logical consequences of your "very careful" positions might be less than desirable? Or have you trained yourself to not care about this?
It disturbs me that you always seem to feel compelled to stake out legal positions that defend the increasingly disturbing actions of our executive branch, and yet refuse to acknowledge that this constitutes a defense of the actions of our executive branch.
As our rights and oversights are slowly and "carefully" defined out of existence, it will be an enormous comfort to all of us to know that narrow legalisms could be used to justify each step down that path.
Posted by Morbo (Member # 5309) on :
I think Dag has his own reasons for being very careful, and shouldn't be attacked for it.
edit: Hmmm, they weren't the reasons I thought, but it's still silly to attack someone for carefully framing opinions, just as off-the-cuff BS shouldn't be praised.
[ July 20, 2006, 11:00 AM: Message edited by: Morbo ]
Posted by Dagonee (Member # 5818) on :
quote:Oh, I know that. I just wish you'd show some more guts occasionally.
It has nothing to do with courage, Tom. But thatnks for speculating.
Considering you haven't even stated an opinion in this thread about anything but me, I wonder why the hell you feel qualified to comment on my "guts."
Oh, I forgot, you knew that the NSA program was impeachment-worthy the day the story broke. Yes, you're very brave.
As to why I won't venture certain opinions here, it's very much related to this willingness to go so far beyond what I've said as to make it unrecognizable. The few times I've made specific criticisms of the Bush administration here, I've seen them quoted - sometimes in other threads - an expanded far beyond my original intent to support positions I don't agree with. Usually with something like "Even Dag says..." If people are going to appeal to me as authority, I'm not going to provide fodder to be misused.
Since, to date, there hasn't been an equivalent misuse of my statements that defend a particular aspect of the administration, I haven't felt the need to limit such defenses.
I very clearly remember an exchange in which I defended a very particular action which ended up with someone saying something like , "You're right! Bush is the best president ever. He's perfect."
It pisses me off to no end. The fact that you're more subtle in your exaggerations of what I say doesn't make you any less manipulative and dishonest, it only makes you better at hiding it.
quote:Does it really not occur to you that the logical consequences of your "very careful" positions might be less than desirable? Or have you trained yourself to not care about this?
Excuse me? The logical consequences of my very careful positions are not less than desirable unless one assumes - as you seem wont to do - that I have no other positions on the matter.
I'm really sick of this attitude, Tom. You have zero evidence to make any assumption about whether less than desirable consequences "occur" to me or whether I care about those consequences.
What I've trained myself to do is to examine the law and to be able to see both sides of a legal argument in great detail - something necessary for anyone who wishes to actually prove a legal point, ever.
quote:It disturbs me that you always seem to feel compelled to stake out legal positions that defend the increasingly disturbing actions of our executive branch, and yet refuse to acknowledge that this constitutes a defense of the actions of our executive branch.
Bullshit, Tom. I'm sorry, but there's no other word for it. When I am making a particular proposition - that action X does not violate law (statutory, constitutional, or case-derived) Y - that is all I am saying. That's not a defense for the action any more than saying killing a dog isn't murder is a defense for dog-killing.
It disturbs me that your grasp on reasoning is so tenuous that you can't wrap your mind around this concept. The other alternative is that you do grasp this and are purposefully ignoring it, which disturbs me even more.
Not every immoral or undesirable action is illegal.
Posted by Chris Bridges (Member # 1138) on :
I look at Dag's posts as an excellent way of forcing me to get my facts straight. He doesn't tolerate vague accusations of menace any more than a hypothetical impeachment court would, and that should tell you a lot about how you need to present your arguments if they are to be taken seriously be anyone who doesn't already agree with you.
"Bush must be stopped because he's always doing stuff like this" will not get you anywhere. "Bush must be stopped because he violated this law, this ruling, and this interpretation" is an accusation with meat in it.
I just read all of Dag's posts with the understood disclaimer "Personal opinions not included."
Posted by kmbboots (Member # 8576) on :
Dag, I think you should take it as a compliment that people (including me) so want to know what you think that we are frustrated when we don't get to. Your opinion carries some weight.
Posted by Morbo (Member # 5309) on :
quote:Originally posted by Dagonee: To legitimately call it laughable, you have to somehow account for the SCOTUS ruling in Hamdi.
"It" being the administration argument that the Authorization for Use of Military Force (AUMF), passed September 18, 2001, authorized indefinite ignoring by the NSA of the FISA courts. Dag, I do call it laughable, and here is one argumment why:
quote: In Hamdi, Congress had not established a preexisting statutory scheme governing the detention of enemy combatants. As a result, Congressional intent could be gleaned from the AUMF alone. With respect to the NSA surveillance program, Congress has established a complex statutory scheme, through FISA and its amendments, governing electronic surveillance of U.S. persons for the purposes of gathering foreign intelligence information. There is no indication in the AUMF that Congress intended to authorize the President to ignore an existing statute that established a comprehensive scheme for conducting domestic electronic surveillance. --former CIA general counsel Jeffrey H. Smith
http://mediamatters.org/items/200601270007 The web page has other arguements why Hamdi did not assert that the AUMF is a blank check for presidential power. "Blank check" is even in the opinion! And the more recent Hamdan v Rumsfel case continues to show SCOTUS' view that the AUMF does not bypass other laws.
Here's a quote from the majority opinion in Hamdi:
quote:We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation ’s citizens. Youngstown Sheet &Tube ,343 U.S.,at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict,it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v.United States, 488 U.S.361,380 (1989)(it was “the central judgment of the Framers of the Constitution that,within our political scheme,the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty ”);Home Building &Loan Assn.v.Blaisdell,290 U.S.398,426 (1934)(The war power “is a power to wage war successfully,and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation.But even the war power does not remove constitutional limitations safeguarding essential liberties ”). Likewise,we have made clear that,unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive ’s discretion in the realm of detentions.
http://journals.democraticunderground.com/Vyan/36 So Hamdi asserts a role for the Judicial Branch, as a check against executive power, which the FISA statutes codifies in the case of survelliance. How does that mean that Hamdi supports indefinite bypassing of FISA?
Posted by Dagonee (Member # 5818) on :
quote:As our rights and oversights are slowly and "carefully" defined out of existence, it will be an enormous comfort to all of us to know that narrow legalisms could be used to justify each step down that path.
Hmmm. I didn't see this when I first looked at that post.
Once again, nothing I've said justifies any step down any path. The "legalisms" are only "narrow" if one thinks they are a complete analysis of a particular program. As you have no reason to think so at this stage except willful disregard for my words, your opinion on the subject of what my "narrow legalisms" will or won't justify is simply not a pressing concern to me.
quote:"Bush must be stopped because he violated this law, this ruling, and this interpretation" is an accusation with meat in it.
Thank you, Chris.
"Bush must be stopped because actions A, B, and C are bad for the country because of X, Y, and Z" with no mention of legality at all is also an accusation with meat on it, depending on what X, Y, and Z actually are.
In other words, "because it makes us like the Nazis" is almost certainly a meat-lacking accusation, while "because it shows less than proper respect for this specific right of these persons" has meat. Valid arguments to the latter type are that A, B, and C aren't actually happening, or that X, Y, and Z won't result from A, B, and C, or that X, Y, and Z are actually good things. In having that discussion, much of what's important to our country is discussed.
quote:Your opinion carries some weight.
Thank you, Kate. However, this makes me more concerned about potential misuses of those opinions.
quote:Hmmm, they weren't the reasons I thought, but it's still silly to attack someone for carefully framing opinions, just as off-the-cuff BS shouldn't be praised.
Thank you as well, Morbo. I'm curious what you thought those reasons are, if you feel like sharing.
Posted by Jim-Me (Member # 6426) on :
If you genuinely care about what someone thinks then you don't try to bully and taunt them into making statements.
It's very simple. People come in with exaggerated, misplaced, and improper accusations against the president and Dag basically steps in and says "don't exaggerate", "that isn't proper", or "you aren't complaining about the right person." How in the hell does that make him lacking in guts?
Tom, you are treating Dag like he's sneaking around pretending to be against the president when he's not, like his missives against Jay and Bean Counter are some kind of smoke screen so he can have credibility, and like he has somehow fooled us into believing he is a genuine and concerned conservative when he's really just a schill for Bush. Is that your honest opinion of him?
Posted by Dagonee (Member # 5818) on :
quote:In Hamdi, Congress had not established a preexisting statutory scheme governing the detention of enemy combatants. As a result, Congressional intent could be gleaned from the AUMF alone. With respect to the NSA surveillance program, Congress has established a complex statutory scheme, through FISA and its amendments, governing electronic surveillance of U.S. persons for the purposes of gathering foreign intelligence information
There is no need for a "blank check" for Hamdi to support the NSA program. The Hamdi decision stated that Congress authorized the override of one of the two most fundamental protections we as United States citizens enjoy: the Great Writ of Habeas Corpus (the other being jury trials). Further, the interception of enemy communications is far more relevant to military operations than the detention of American citizens on American soil.
The right at issue in Hamdi was far more fundamental, the protection far more explicit in the Constitution, and the core power being exercised was far more related to the specific authority granted.
Hamdan v Rumsfeld does not stand for the proposition that the AUMF didn't authorize anything else. While it's true that "even the war power does not remove constitutional limitations safeguarding essential liberties," it apparently does render them highly mutable. Further, it's not at all clear at the NSA program violates the fourth amendment in any way, whereas what was done to Hamdi clearly violated the right against imprisonment without a suspension of the Writ or a trial by jury.
That's not to say that the contrary position doesn't have constitutional and legal merit. It is to say, however, that this position is not laughable when one truly appreciates the extent of what Hamdi did by finding an act of Congress to be a partial suspension of the writ of habeas corpus when there is no mention of the writ in the act itself.
Somehow, the Court read that act to mean that congress had suspended the writ and also imposed a lengthy set of procedural protections to soften the impact of the writ.
THAT'S a laughable position. However, once that position is precedent, it seems highly plausible that Congress also empowered the president to conduct signal interception which does not violate a clearly established constitutional right when it authorized the use of military force to stop subsequent attacks on American soil.
Posted by Morbo (Member # 5309) on :
So you think Hamdi is a flawed precedent?
Posted by Dagonee (Member # 5818) on :
Absolutely - it was horrible precedent. I think Scalia and Steven's dissent was right on the money.
Posted by Dan_raven (Member # 3383) on :
Dag, isn't there an inherent conflict of interest in having the President stop an investigation of a program that he is closely and politcally associated with?
Ken Lay did stop internal investigations of accounting practices--because he was hiding the mess that either he, or others, had created.
The President is head of the executive branch. Almost all investigative organizations are under him. If he can pick and choose when and if his policies are investigated, that puts him precariously close to being above the law. In other words, "All law enforcement is headed by the President, so the President is above all the law."
The Judicial branch has no investigative powers.
The investigative powers of the legislature is severly limited. Is the only ones legally able to force an investigation on presidential doings the legislator?
Posted by Dagonee (Member # 5818) on :
quote:If he can pick and choose when and if his policies are investigated
It depends on what you mean by "can." Absent a special prosecutor or other entity declared to be independent of executive control, then yes, the President has the power to stop any executive investigation. The comparisons you've made to other people stopping an investigation have all contained an element of bribery or influence peddling - of outsiders controlling things they shouldn't control. This is a very serious charge, one that amounts to a felony in most states and one that can't be sustained with respect to Bush and the OPR.
Posted by TomDavidson (Member # 124) on :
quote: Tom, you are treating Dag like he's sneaking around pretending to be against the president when he's not...
No. I'm treating Dag like I believe -- which I do -- that the President is currently using the law as a smokescreen behind which he and others are chipping away at various freedoms through the establishment of precedent. And by justifying each little chip as "legal" within a specific interpretation of the law's wording (if not intent), lawyers are actually abetting the steady expansion of the executive -- which I, as someone who remains firmly opposed to the necessity of a strong executive or any executive at all, consider absolute anathema to American liberty.
When Dag says "I'm only commenting on whether this is legal or not, and not whether it's moral," the completely natural and understandable response is and should be "well, do you think it's moral?"
And a lawyer who refuses to answer this question, once you grant these premises, is dangerous. Because it's exactly that kind of lawyer and exactly that sort of legal argument that's being used to tiptoe us as a society -- largely unknowingly and often unwillingly -- further down this particular path.
At some point, we have to hope those lawyers will stop and say, "Okay, so it's conceivably legal under the current arrangement, or at least we think we can get the current court to let it slide -- which, by definition, is the same thing. But it's so freakin' corrupt that we, as lawyers, will quit our jobs and demand that the law be changed before we write an opinion justifying this kind of thing."
Posted by Jim-Me (Member # 6426) on :
But why should he have to offer an opinion on that. Why is he (and only he-- I've never seen this accusation leveled at anyone else, and to be fair to you, you are not the only one who has said it of him) cowardly for simply stepping in and saying "calm down, it's not as bad as you say"? If that's the only opinion he wants to offer, why should he have to offer more to have "guts"?
Posted by Dagonee (Member # 5818) on :
quote:When Dag says "I'm only commenting on whether this is legal or not, and not whether it's moral," the completely natural and understandable response is and should be "well, do you think it's moral?"
And a lawyer who refuses to answer this question, once you grant these premises, is dangerous.
Go take a Valium, Tom. I don't represent anyone. If I was contending that legal = moral, then I might be dangerous. But I'm not. In fact, I'm begging you to recognize that I've said legal <> moral dozens of times now.
quote:Because it's exactly that kind of lawyer and exactly that sort of legal argument that's being used to tiptoe us as a society -- largely unknowingly and often unwillingly -- further down this particular path.
No. A lawyer who refuses to indulge in shoddy legal reasoning in order to obtain the policy outcome he desires is dangerous. What's more dangerous are people who encourage lawyers to do so. They're the ones who turn the law into something that chips away at freedom and causes immoral results, because they've decided that their ends are worth corrupting the law.
The decision in Hamdi, joined by all but the two most conservative and the one most liberal justice, is a perfect example of this kind of malleability. And the most conservative and most liberal member of the Court were the only ones to say, "Wait a minute? Are you nuts? The Constitution allows indefinite detention of American Citizens under one and only circumstance, and that's not present here."
The rest (except Thomas, who at least had the balls to say that if Congress did suspend the writ, then Hamdi is out of luck) looked to the purpose of the habeas protection and then decided Congress must have meant to do this, because that's the best policy outcome. Please. It's the exact same mishmash reasoning that results in the court saying, "well, if we think what's being done is as good as a jury trial, we'll allow it, but only if it's not too unfair." It's on the same evolutionary path as Dred Scott, just disguised by the fact that the outcome seems (but really isn't) supportive of civil liberties.
quote:At some point, we have to hope those lawyers will stop and say, "Okay, so it's conceivably legal under the current arrangement, or at least we think we can get the current court to let it slide -- which, by definition, is the same thing. But it's so freakin' corrupt that we, as lawyers, will quit our jobs and demand that the law be changed before we write an opinion justifying this kind of thing."
So I should quit Hatrack? Please stop taking your incoherent rage at the legal profession out on me.
There is nothing to be gained by not acknowledging what the law is. There's everything to be gained by determining if something is legal or constitutional, whether we want it to be done or not, because only then can we identify the gaps left by the Constitution.
Your view of the law is the one that invites corruption, because it says, "We should not apply sound legal reasoning if we do not like the outcome." The fact that your desired outcome is anti-corruption doesn't mean that the law isn't weakened.
The answer to the question "Is X constitutional?" or "Is X legal?" should only take into account those outcomes on which a legal rule is based. The moral advice should be distinct - not necessarily in a different document, but as a clearly separate opinion.
quote:the completely natural and understandable response is and should be "well, do you think it's moral?"
Finally, to return to this, I, unlike you, am not comfortable giving my moral opinion on these matters in a single sentence. It takes time to fully think it out. The absolute unwillingness of some, including you, on this board to accept the boundaries of what I'm willing to discuss make it absolutely necessary to me that I take that time if I'm going to venture a moral opinion on a complicated issue.
You won't change that. Your continued attempts to change that are manipulative and annoying.
Posted by Kwea (Member # 2199) on :
Dag, that is why I asked you those questions. I wasn't trying to imply that I already knew what you thought.
I bet you have an idea what I think of the matter, but you might be surprised why I think it.
I understand why you might want to be cautious about expressing an opinion on this, but in this I sort of agree with Tom.....just because something is legal doesn't mean it is right.
I know you feel the same way about some things as well, and I just wanted to know what you thought about some of the other issues raised by these actions.
Sorry if it read like an ambush. I don't do ambushes, not on line anyway. I prefer my on line conflicts a little more...well, honest....than that. Posted by Dagonee (Member # 5818) on :
quote:I understand why you might want to be cautious about expressing an opinion on this, but in this I sort of agree with Tom.....just because something is legal doesn't mean it is right.
I agree. Which means, if I say something is legal, I'm not saying it's right.
I don't think it was an ambush. It's just not something I want to take the time to formulate fully, and it's not something I feel comfortable discussing without taking that time.
Posted by Kwea (Member # 2199) on :
No problem. That IS what I was getting at...that you do not always equate legality with right. I can understand why the distinction is hard to catch at times, but I know better. Posted by Bob_Scopatz (Member # 1227) on :
I find incredible value in learning what is and is not legal, and what is open to question.
I believe the worst of GWB at every turn (yes, DarkKnight, I'm one of those), and I will rarely give him the benefit of the doubt. I don't really need the opinions of others who already look at Bush et al's latest actions as another attempt at ruining America. I already take that as given. What I need is one or more perspectives that tell me why an action might be interpreted differently than what I already assume. I come here and learn that there might be real legal questions surrounding one or another issue, or that there might be motivations other than turning America into a police state.
It really helps.
It helps in ways that hearing an opposing opinion (a la the rabid Bush supporter style) would not. 'Cuz I'm not really able to listen to that (e.g., DarkKnight's little outburst) with anything but a . Now a well-thought-out opinion, that'd be great. And we do get that from various people here from time to time. But that takes real effort. And you can't just go around making people produce that stuff on demand.
As for dangerous lawyers, hell, they're all dangerous.
Posted by TomDavidson (Member # 124) on :
quote:Why is he (and only he-- I've never seen this accusation leveled at anyone else, and to be fair to you, you are not the only one who has said it of him) cowardly for simply stepping in and saying "calm down, it's not as bad as you say"?
The problem I have is that Dag isn't actually saying "it's not as bad as you say." Dag is quite frequently saying "it's exactly as bad as you say, but we have to let them do it. Because whether it's bad or not, it might well be legal."
I quite frankly don't respect the system that much, and am coming to regard the law as an enemy of freedom. Had I more faith in the American electorate, that might be less of an issue for me.
Posted by Dagonee (Member # 5818) on :
quote:The problem I have is that Dag isn't actually saying "it's not as bad as you say." Dag is quite frequently saying "it's exactly as bad as you say, but we have to let them do it. Because whether it's bad or not, it might well be legal."
No, Dag is NEVER saying that.
Posted by Bob_Scopatz (Member # 1227) on :
quote:Dag is quite frequently saying...it might well be legal
This part is true.
Posted by Dagonee (Member # 5818) on :
True. The middle part is pure fabrication.
Posted by TomDavidson (Member # 124) on :
So, to clarify, your position is usually that these things aren't bad?
I've frequently come away with the impression that you've said "it may or may not be bad, but it's conceivably legal, and that's the extent of my participation in this conversation." If it bothers you that these things might be considered legal under some administrations, you've gone out of your way to suppress any expression of that sort; you've admitted as much. And you absolutely refuse to engage in any discussion of what, if these things are "legal," can be done to stop them.
Which is why, at the end of the day, lawful neutral is pretty indistinguishable from lawful evil.
Posted by Jim-Me (Member # 6426) on :
Where you are off, Tom, is in taking anything concrete from his saying "that's the extent of my interest in this conversation." Thank you for choosing those words, though, as it shows a recognition that this is not the end of Dagonee's interest in the matter.
I've long been leery of trying to defend Bush here at all because, basically, it's not worth the trouble. I have to get pretty riled about something before I'll even begin to talk on a political subject here because, by and large, my comments and input aren't valued. Even the polite responses tend to be, essentially, "how can any sane and decent person say that? you must be being duped..."
Dagonee's reasons for reticence may be different, but the fact remains that no one here is obligated to rebut points they don't wish to challenge, for whatever reason.
edited for formatting and clarity.
Posted by Dagonee (Member # 5818) on :
quote:I've frequently come away with the impression that you've said "it may or may not be bad, but it's conceivably legal, and that's the extent of my participation in this conversation."
So you do understand the limitations of what I say. OK. This means you're being deliberately obnoxious about it. Good to know.
quote:And you absolutely refuse to engage in any discussion of what, if these things are "legal," can be done to stop them.
Not true. I've recommended ways that Congress can stop the NSA program with no confusion of constitutionality whatsoever. I recommended a way in this thread about how investigations can be done without the President stopping them.
In fact, I'm the only one to have suggested a method of accomplishing either of these things that would actually work. (Edit: on this board, that I have seen. Clearly others have done so elsewhere.)
quote:Which is why, at the end of the day, lawful neutral is pretty indistinguishable from lawful evil.
I'm really having a hard time figuring out why I shouldn't just say F&^% you!" and walk away after that.
I am most decidedly NOT lawful neutral, and you have the reading comprehension skills to know this by now. What the hell is your intent here, Tom? To piss me off? To score points off me? To show me up as the evil lawyer?
Posted by TomDavidson (Member # 124) on :
quote: Dagonee's reasons for reticence may be different, but the fact remains that no one here is obligated to rebut points they don't wish to challenge, for whatever reason.
That's certainly true. But it's also worth pointing out that if you do think these things are bad, and yet you spend most of your time when discussing them defending them on points of legality, it's both fair and reasonable to expect that people will assume that you support them and behave accordingly.
I mean, if I spent half my time criticizing Teddy Kennedy's voting record, why would I be affronted when people react to me as if I disliked Teddy Kennedy? And when I respond, "I never said I disliked Teddy Kennedy. How dare you presume to know how I feel about Teddy Kennedy?!" and then refuse to answer the question, "Well, do you dislike Teddy Kennedy?" .... Well, you get the point of the analogy.
quote: I am most decidedly NOT lawful neutral, and you have the reading comprehension skills to know this by now.
Hm. Perhaps we're each operating from a different definition of lawful neutral, then. Or else, at the end of the day, I really just don't understand your worldview at all.
Posted by rivka (Member # 4859) on :
quote:What the hell is your intent here, Tom? To piss me off? To score points off me? To show me up as the evil lawyer?
Actually, I suspect he's simply attempting to goad you into expressing your personal opinion (despite your repeated disinclination to do so). Tom is quite good at that particular trick. Usually followed with a detailed dissection of your opinion, explaining at each step why you are wrong, or why you don't actually believe what you think you do.
I admire you for standing firm, while still debating issues with him. I gave up on doing so a long time ago.
Posted by TomDavidson (Member # 124) on :
quote:Usually followed with a detailed dissection of your opinion, explaining at each step why you are wrong, or why you don't actually believe what you think you do.
You know, I don't think I've ever accused someone of not believing what they think they do. I've accused people of believing what they do for reasons other than the ones that they think they have, though. I know that some people on this board think these are equivalent arguments, but I draw a fairly major distinction between the two.
(As a side note, Dag, my goal is not to piss you off. My "goal," insofar as I have one at all, is to understand where legality and morality intermesh. That's why I'm so frustrated by your refusal to discuss morality in these cases; the narrow parsing you use to avoid engaging in those broader conversations reminds me too much of the kind of very specific, very semantic practices used by White House Chiefs of Staff and the like to avoid addressing those same broader points (and perhaps for similar reasons), to which I must confess a certain atavistic allergy.)
Posted by Bob_Scopatz (Member # 1227) on :
quote:In fact, I'm the only one to have suggested a method of accomplishing either of these things that would actually work. (Edit: on this board, that I have seen. Clearly others have done so elsewhere.)
I'm pretty sure I mentioned the "special prosecutor" route. Unless you're saying that wouldn't work...
Posted by Jim-Me (Member # 6426) on :
Edit: in response to Tom's Kennedy analogy
No, but if you spent a great deal of time and effort correcting people who were running around saying "Ted Kennedy should have been convicted of murder", then you can still reasonably say "when did I ever say I supported his politics or policies?" without having to enumerate which ones you support and why.
Posted by Dagonee (Member # 5818) on :
quote:I really just don't understand your worldview at all.
Since you keep ignoring the parts of my posts where I express it, this doesn't surprise me at all.
quote:it's both fair and reasonable to expect that people will assume that you support them and behave accordingly
Not if I keep saying I'm not telling you whether I support them.
quote:I mean, if I spent half my time criticizing Teddy Kennedy's voting record, why would I be affronted when people react to me as if I disliked Teddy Kennedy? And when I respond, "I never said I disliked Teddy Kennedy. How dare you presume to know how I feel about Teddy Kennedy?!" and then refuse to answer the question, "Well, do you dislike Teddy Kennedy?" .... Well, you get the point of the analogy.
I would assume you disliked his voting record.
Considering most of the time I'm not even presenting what I consider to be controlling legal outcomes, but merely demonstrating the contentiousness of the issue to people who think it is well-settled in a particular direction, the analogy is largely pointless.
Let's go back to what seems to be the heart of your issue with me:
quote:And you absolutely refuse to engage in any discussion of what, if these things are "legal," can be done to stop them.
Will you now acknowledge that this statement is inaccurate and misrepresents my participation in these threads?
You keep moving the complaint around and not dealing with my responses to the current version.
Posted by Dagonee (Member # 5818) on :
quote:Originally posted by Bob_Scopatz:
quote:In fact, I'm the only one to have suggested a method of accomplishing either of these things that would actually work. (Edit: on this board, that I have seen. Clearly others have done so elsewhere.)
I'm pretty sure I mentioned the "special prosecutor" route. Unless you're saying that wouldn't work...
You're right, I apologize. It would, at this point, require congressional action to create such a position, but that is the necessary solution here outside of congress's investigatory powers.
Posted by Bob_Scopatz (Member # 1227) on :
Well...you heard it here first.
lol.
I just like it when I get something right every once in awhile.
(even if it is buried in my deep-seated distrust of this Administration).
Posted by MrSquicky (Member # 1802) on :
I think it bears repeating that this:
quote:The eavesdropping program, begun after the Sept. 11, 2001, attacks and revealed in news reports last December, allows the NSA to intercept telephone calls and e-mails between the United States and locations overseas without court approval if one of the parties is suspected of links to terrorist groups.
is not necessarily an accurate description. We really have no way of knowing what criteria are used. All we have is the word of the Bush administration that this is what they are holding themselves to. Without oversight, there is no practical limit on who they look at, other than the trustworthiness of the people involved.
Posted by Jim-Me (Member # 6426) on :
That is also not accurate, Squick. There is a totally practical limit: severe manpower limitations. Easily the bigggest problem with surveillance is that you have to have people to do it. I work for a fairly small phone company and at any given moment we have tens of thousands of calls taking place. There's simply no way to go through and listen to them all. Even if you have some digital system screening them for keywords, someone still has to go back and listen to the conversations in real time and determine if this is a threat issue or not.
Intelligence resources are limited. This isn't "Enemy of the State" where someone can just task a satellite to watch Will Smith run through the streets.
Posted by MrSquicky (Member # 1802) on :
Errr...what does that have to do with what I said? I was specifically saying that they are by no means limited to the oft said "people suspected to have links to terrorist groups." Practically, they can look at anyone they want to without people finding out about it.
I wasn't suggesting that they have infinite resources. That never even crossed my mind as something I'd need to note.
Posted by Kwea (Member # 2199) on :
I think he was talking about the limits to where they apply their power (a la Watergate), rather than the possibility of every call being screened.
As we have already seen, those in power don't always use their power wisely. That is why oversight is so important in matter like this.
Posted by Jim-Me (Member # 6426) on :
Gotcha. Well, from what I know of the intelligence world and it's workload, I personally would be really hacked off if someone were using this for anything other than it's intent.
Constitutional issues aside, we just don't have the resources to be that frivlolous with them.
I understand and can relate to distrust of government... the line between abuse of power and need for security can be very hard to place sometimes... and it's certainly a natural tension. But more oversight *does* inherently mean less security. Whether or not it's a dodge, it *is* true.
Posted by MrSquicky (Member # 1802) on :
On the topic of trustworthiness, I've got to say, as someone who doesn't assume that you can definitely trust this administration, them using a flimsy, unprecedented reason to prevent people from checking up on them doesn't put them in the best light. They're not exactly acting like people who have been completely responsible with their power.
Posted by MrSquicky (Member # 1802) on :
Jim,
quote:Gotcha. Well, from what I know of the intelligence world and it's workload, I personally would be really hacked off if someone were using this for anything other than it's intent.
Constitutional issues aside, we just don't have the resources to be that frivlolous with them.
I expected that, what with the primary focus on terrorism and all the powers that the administration said they needed to be granted to combat it, the agencies under the executive branch would be well prepared to deal with terrorist threats.
The dog's breakfast that the incompetently led FEMA made out of Katrina showed me how off I was. Frankly, given the huge mis-steps has made on dealing with terrorism, sometimes because they are focusing elsewhere, I not sure that having oversight to make sure that they are only spying on legitimate subjects wouldn't make us safer.
I have problems with people saying that an administration that appointed an ineffective and unqualified person who left his old job under suspicion of wrong doing as the head of the agency that would be primarily responsible for dealing with the aftermath of the terrorist attacks we were assured were coming as one that can be trusted to protect us without oversight.
Posted by Jim-Me (Member # 6426) on :
I don't necessarily agree that it's flimsy. I'm not qualified to make that judgement one way or the other, but I do know that it might not be.
But can a reasonable person be concerned about this? absolutely.
Posted by MrSquicky (Member # 1802) on :
Jim, I say flimsy because they are basically saying that a group that has been trusted with all manner of sensitive information, some higher level than this, and appears to have a very good track record in terms of leaks can not be trusted with this information. But they're not actually saying this, and instead are making a more general statement about how the less people you tell, the more secret something is.
When you're taking an unprecedented step in denying access to a previously trustworthy investigation group, I find that a flimsy reason, as far as I am able to judge.
Perhaps they know of reasons why they shouldn't trust this group that obviously they aren't going to share with the public. But the reason they publicly offered is, to me, pretty flimsy.
Posted by Irami Osei-Frimpong (Member # 2229) on :
quote:Actually, I suspect he's simply attempting to goad you into expressing your personal opinion (despite your repeated disinclination to do so). Tom is quite good at that particular trick. Usually followed with a detailed dissection of your opinion, explaining at each step why you are wrong, or why you don't actually believe what you think you do.
I admire you for standing firm, while still debating issues with him. I gave up on doing so a long time ago.
To show you how far out I am: until the last two sentences, I read this as a compliment.
Posted by Morbo (Member # 5309) on :
If the DoJ's OPR is such a security risk, why is this the only time in OPR's 31 year history that it was "prevented from initiating or pursuing an investigation"?
Claims of national security in this case are unconvincing. The administration has played that card too many times for them to have much credibility left. A court ruling yesterday shows that. Courts have historically been very deferential to national security issues. But that might be changing recently, with this and other rulings dismissing blanket statements of national security as a reason for dismissing court cases.
quote: The government, which has defended the legality of what it has called a "terrorist surveillance program" without revealing many details about its workings, asked U.S. District Judge Vaughn R. Walker to dismiss the case, arguing that it would divulge state secrets and damage national security.
In his ruling, Walker wrote that he saw no "reasonable danger" of harming national security by proceeding with the case, that its subject was "hardly a secret" and that the court had a constitutional duty to decide matters brought before it.
"To defer to a blanket assertion of secrecy here would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired," Walker wrote.
quote:As a side note, Dag, my goal is not to piss you off.
At some point, when you know something will piss someone off (as you clearly do in this case, Tom), and you keep doing it...and doing it...and doing it...the question must come as naturally as you seem to think questioning Dagonee's morality does...is it your goal to piss him off?
You dodge that question as ably and consistently as you claim Dagonee does about his own morality.
Posted by MrSquicky (Member # 1802) on :
I imagine that the reporters who ask representatives of the Bush administration (or any presidential administration, really) questions that they're not answering over and over know that they're pissing those representatives off. Would you say that their goal is to piss the representatives off?
Posted by Rakeesh (Member # 2001) on :
Yes.
It is certainly one of their goals, at least some of the time, wouldn't you say? Not even for personal reasons, but for professional ones.
Comparing Dagonee to a mouthpiece of the Bush Administration (or any presidential administration, really) is not very accurate, either.
Posted by MrSquicky (Member # 1802) on :
I didn't make any such comparison. I merely presented a situation.
It might be one of the goals for some of the reporters, some of the time, but I think (and you seem to agree) that it's not a intrinsic part of the situation.
Posted by Lalo (Member # 3772) on :
Dag, if you don't support a great number of Bush's more alarming policies, I owe you an apology. Your steadfast defense of them has, over the years, led me to assume your agreement with them. I'm honestly relieved that's apparently not the case.
Unless it is, in which case, I'm rather confused as to why you're lashing out at Tom for asking if you do. Surely it's not that outrageous a crime, particularly given I can't recall a single instance of you criticizing Bush for compromising one civil liberty or another.
Posted by Kwea (Member # 2199) on :
I remember Dag disagreeing with Bush on more than one occasion. Not often, but more than once or twice.
Hamdi is just one example. (I know, that was SCOTUS, but SCOTUS backed Bush's admin on that one)
Posted by Bob_Scopatz (Member # 1227) on :
The potential for abuse in a self-monitored program like the NSA domestic spying operation isn't that they'll got on a fishing expedition and just listen in on random conversations. It is that they'll target people who have nothing to do with a terrorist threat and use the information for their own gain. Given their track-records, I don't really trust people with the ethical lapses of Cheney or DeLay, for example, to resist that temptation. And in any organization, even one as uptight as the NSA, there are people willing to bend rules to appease a powerful person who just might do them a favor down the road, or whose politics they especially agree with. (NOTE to add: Yes, I know DeLay is a non-entity in this, I'm just using him as an example of the level of ethical behavior I perceive among the top leaders in this country, maybe I should've used Rove...)
The troubling thing for me is that FISA makes this oversight so flippin' easy that there is no need to avoid it. It's not like that court denies requests. They can even get the request after the fact, for cryin' out loud. It barely deserves the name "protection" as applied to rights. It's legal, sure, but what a mess. The judges involved sit inside the ruddy Justice Department anyway.
But this program is apparently SO special that even THEM knowing about it's operations is a problem.
Give me a break. Under what possible circumstances (other than suspicion that one of the FISA judges is corrupt) would national security be threatened by using that system to AFTER THE FACT get a warrant?
This is simply another in a series of attempts to increase the power of the Executive Branch. It's a pet project of Cheney's that GWB wasn't smart enough to block. His own father reined Cheney in on this crap, but GWB is just not the man his father is. For one thing, he doesn't have that CIA experience to know what manipulative tricks some people have.
And as far as not having enough manpower...well...Soviet-era secret police didn't need to have the manpower to monitor every call. They only had to have people thinking that every call might be monitored to put a chilling effect on that society's freedom.
Posted by Jim-Me (Member # 6426) on :
quote:Originally posted by Lalo: I'm rather confused as to why you're lashing out at Tom for asking if you do.
Because Tom has called him an evil coward? That's surely worth lashing out over, if not a flat violation of the service agreement. Insults are not any less insulting for being delivered in a refined manner.
Posted by Dan_raven (Member # 3383) on :
First, in regards to Dag and legalism. Dag and I see differently on a host of topics, but I greatly respect his input. Why? Because while others who are against some Presidential policy go off and scream and yell and panic, Dag calmy shows the true legal reality of the situation. Its not that he is a right wing voice, its just that he is a calm moderating voice, that seems to get some of you upset.
Having a screaming match against an opponent may be more fun and energetic, and requires less thought and effort, but Dag doesn't do that.
And I'm glad. If all we wanted to do was point fingers, panic and scream, then we would be no better than the fear monger politicians on both sides.
Secondly, I fear that the President may believe that he is above the law. Yet I've come to the conclusion that this is a political thing, not a constitutional thing. The main leash stopping a president from abusing the law is Congress. They have the power to invsetigate him and his departments. As long as the President has a congress that is too loyal to investigate, he can get away with what he wants.
While the courts are another limit on his power, they are physically impotent to enforce their rulings. Sure they could say, "You must not do this" the President could publically agree with them, then keep doing it. This has happened since the time of Andrew Jackson (Indian Rights. The Supreme Court said they were people. Jackson took the army and treated them like cattle, moving them down the "Trail of Tears"). More practically, the courts have a high lag time between the act and the decision. Years went by in the Hamdi case, with him locked away. The NSA program can continue for years before it reaches an final judicial outcome.
Third, my two biggest fears of the NSA recording practice is not that they will listen in to my phone recordings, or know where I've been calling. It is A) They will use this not to track terrorists, but to track political rivals. I'd love to see an experiment by a liberal or anti-war group. Have someone from that group call a friend overseas. Mention that "Joe-X, a strong Republican backer, is fed up with the President. He's been invited to a televises Presidential event. Instead of being an audience puppet, he's going to do a very visual protest, and the TV camera's will catch it all." Then see if Joe-X will be allowed to attend that event.
If he is not, that means that they are misusing this phone monitoring system.
Its clumsy and full of holes, but it appears to be the only oversite we the people, will have on this project.
The other fear is that even if the President is as faithful to our rights as he claims, this sets a precedent that future Presidents can abuse. If they can, they will.
Finally, the way this investigation was swept under the rug, first trying to hide it under the denial of clearance given the investigators (for the first time in history) without comment, then having "national security" explanation dragged out of the Attorney General only when confronted by congress, makes us all ponder the question--Why is it OK for the government to know all of our information, but for us to be kept in the dark about so much government information.
We are in the Information Age people.
In the Iron Age it wasn't the black smiths that built empires. It was those who maniputlated the Iron Technologies into the most effective use against their enemies that built empires.
In the Industrial Age it was not the workers or inventors of industrial might that built financial empires. It was those who manipulated the Industires into the most effective use against thier enemies that build financial empires.
In the Atomic Age it was not the makers of Atomic weapons that built empires. It was two countries that manipulated their Atomic weapons into the mose effective threat that built world spanning empires.
So in the Informatio Age, we all worried that some hacker or computer genius would take over the world. Wrong. It is those that most effectively use information against their enemies that are trying to build empires.
The current administration is hording information. Whether for good or for evil is open to debate, but their main policy seems to be hoard all you can. They dribble it out or use it with a hammer. They mix it with half-lies and innuendo. They use all the media like cheap hookers, then pay off the pimps. "Don't let one datum of info out of our control." seems to be Cheney's motto.
See, that above is the accesses and panic mongering that Dag will catch me on.
Posted by Irami Osei-Frimpong (Member # 2229) on :
quote:I fear that the President may believe that he is above the law.
It doesn't seem to me that the President believes that he is above the law, It seems to me that the President believes that he is above my sense of ethics, which is why I didn't vote for him.
There is a reason I didn't go to law school. And the reason is because I don't care about positive law. Like golf and D & D , as popular as law is, it is some other man's game, and I'm only tangentially, indirectly interested in the ways of putters, ten-sided dice, and legal precedent.
If I can live my life away from lawyers and cops, and by extension, accountants, I think I'll be a better person for it.
Posted by Jim-Me (Member # 6426) on :
quote:Originally posted by Dan_raven: If he is not, that means that they are misusing this phone monitoring system.
This is not necessarily so. I know for a fact that members of the Department of Defense, for example, have some fairly strict curtailments of their first amendment rights. Visibly attenting a protest is one of the things proscribed.
quote: The current administration is hording information. Whether for good or for evil is open to debate, but their main policy seems to be hoard all you can. They dribble it out or use it with a hammer. They mix it with half-lies and innuendo. They use all the media like cheap hookers, then pay off the pimps. "Don't let one datum of info out of our control." seems to be Cheney's motto.
I agree with your assessment of history. What doesn't follow is, after showing that this is exactly what politics has meant throughtout recorded history, you suddenly paint this administration as something new and horrid.
It's simply the nature of the beast.
Edit to add: your post also does a great job of describing why information has really been the most valuable all along-- it's not the technologies, but those who control them, which is all about information.
Posted by Dagonee (Member # 5818) on :
quote:If the DoJ's OPR is such a security risk, why is this the only time in OPR's 31 year history that it was "prevented from initiating or pursuing an investigation"?
There's the possibility that they think the leak is in that office. I have no idea if it's true, but it's the possibility that leaps to mind.
quote:I'm rather confused as to why you're lashing out at Tom for asking if you do. Surely it's not that outrageous a crime, particularly given I can't recall a single instance of you criticizing Bush for compromising one civil liberty or another.
Jim-Me summed up part of it well, although there is also the making stuff about what I've said and the what I consider to be his highly dangerous limitations he wants to place on legal analysis.
And, of course, his unwillingness to engage on either of those points. Apparently I'm supposed to be available for moral proclamations at Tom's whim, but Tom feels no duty to either correct his misstatements about me or admit that they were misstatements and won't deign to discuss the central moral theme he uses to justify his rudeness to me.
Posted by Chris Bridges (Member # 1138) on :
Your steadfast defense of them has, over the years, led me to assume your agreement with them.
Dag has rarely, to my knowledge, defended actions made by this administration. He has often defended the legality of them, which, as he has been pointing out over and over, is not the same thing.
Posted by Noemon (Member # 1115) on :
quote:His own father reined Cheney in on this crap
Bob, I'd be really interested in reading more about this; I wasn't aware of it. Do you have any links, or barring that (hard to dig up anything about it on google, at least for me, due to the presidents in both administrations being named "George Bush") could you just summarize what Cheney tried to do, exactly, during Bush I's term?
Posted by Rakeesh (Member # 2001) on :
Did reading comprehension just drop sharply on Hatrack lately?
Dagonee has disagreed with a major decision the Bush Administration has made in this thread, and said it's a terrible idea.
Posted by TomDavidson (Member # 124) on :
quote: You dodge that question as ably and consistently as you claim Dagonee does about his own morality.
In fairness, when someone asks "is your goal to piss me off," and you reply "it's not my goal to piss you off," I'm not entirely sure how you can characterize that as a dodge.
Posted by Rakeesh (Member # 2001) on :
Because you're acting as though the pissing off part is some accident that just happpens, rather than an obvious, forseeable outcome...one which, by the way, increases the likelihood that the questioned party will slip up and reveal what you want them to reveal.
Posted by TomDavidson (Member # 124) on :
Oh, yeah. It's all a complicated plot to learn Dag's opinion, at which point I'll cleverly destroy him. *rolls eyes* Show the guy some more respect than that.
That I might not agree with his opinion doesn't mean that expressing his opinion creates vulnerability.
Posted by Rakeesh (Member # 2001) on :
Who said anything abouut destroying him? It's ironic that you're suggesting someone else show more respect for him, I think, when you've repeatedly acknowledge you have little if any respect for his style or substance.
Hell, you've even made statements that appear to imply he's an evil lawyer, without being silly about it.
You consistently refuse to take Dagonee's posts at literal face value...why are you frustrated when people apply that same thing to you? At least, that's how it appears to me. It is difficult to take you saying, "I'm not trying to piss you off," when everyone here knows you're an intelligent person, well aware of that specific outcome, and whose goal (getting Dagonee to make a statement of morality on your terms) might be achieved by irritating him to the point he finally says what you insist he say.
Posted by Morbo (Member # 5309) on :
quote:Originally posted by Dagonee:
quote:Originally posted by Morbo: If the DoJ's OPR is such a security risk, why is this the only time in OPR's 31 year history that it was "prevented from initiating or pursuing an investigation"?
There's the possibility that they think the leak is in that office. I have no idea if it's true, but it's the possibility that leaps to mind.
Which seems more likely: that a hypothetical leaker is in the OPR; or that the administration wished to quash the NSA investigation, and used security issues as a convenient excuse to do so?
Bear in mind, the OPR never had any clearances granted for the NSA program, so they couldn't have leaked any details of that program. So what does "the leak" refer to?
Posted by Dagonee (Member # 5818) on :
quote:Which seems more likely: that a hypothetical leaker is in the OPR; or that the administration wished to quash the NSA investigation, and used security issues as a convenient excuse to do so?
I don't know. It seems a likely place for a leak on such things and a reason why they wouldn't give the office the information.
As I think Bob pointed out, Bush had more control over this investigation than any likely to be imposed from outside. Further, I don't see how it would serve the Bush administration to stop it in this way. But it's surely possible that they are in fact incompetent and untrustworthy enough to do this.
When people were speculating on why Novak wasn't up on contempt charges, I had numerous people tell me that the most likely reason was to get revenge on Miller and the other guy. To make this charge, one had to ignore a host of more likely possibilities and the rules of grand jury proceedings. Yet people made the accusation anyway and insisted, on no evidence other than their suspicions, that it was the most likely reason for Novak not facing contempt charges.
quote:Bear in mind, the OPR never had any clearances granted for the NSA program, so they couldn't have leaked any details of that program. So what does "the leak" refer to?
That doesn't mean they couldn't have learned about it elsewhere. There are other things that have leaked they'd be likely to know, too.
I have no idea if they leaked anything or not. It is, however, a plausible reason for denying them access to security clearances.
Posted by Irami Osei-Frimpong (Member # 2229) on :
"(getting Dagonee to make a statement of morality on your terms)"
Now, in Tom's defense, on a lot of subjects, it's tricky to get Dagonee to make a statement on any moral terms. ___
Here is what I see: a red hot Haracker poster will start a thread about some Bush inspired outrage. The Poster will scream and holler and use capital letters, and above all, the poster will call Bush's actions illegal or unconstitutional.
Then Dagonee replies politely and knowledgable that Bush's actions are possibly legal and possibly constitution for (insert enumerated reasons)
The two bicker on finer points, and Dagonee's usually right for two reasons, 1) he is good at this, 2) the red hot poster is way too casual about using words like "illegal," or "unconstitutional." ____
As to this vulnerability nonsense. That's what non-legal morality is. It's delicate. It's fragile. It's important. And it means leaving yourself vulnerable because your entire sense of virtue, your past decisions and those in the future, hinge on this.
It's kind of like using your real name.
Posted by MrSquicky (Member # 1802) on :
I'm not sure I understand your scenario, Dag. If the Bush administration knows that there is a leak in the OPR, why are they not doing anything about it? It would seem to me that they have considerable leeway to isolate or more likely fire and/or prosecute this leaker. It also sounds like something it would be important they take care of, rather than taking the unprecidented step of preventing an investigation.
Posted by Dagonee (Member # 5818) on :
Not if they can't prove it.
Posted by MrSquicky (Member # 1802) on :
Maybe I'm misunderstanding something here. As far as I understand, on this issue, the Administration was using its perogative to deny security clearance to all people from the OPR, thus making any investigation impossible. I'm not sure what would prevent them from denying this clearance only to people they suspect of leaking information, even if they couldn't prove that these people were doing so. However, that's what it seems to me that you are suggesting, that they'd be incapable of doing so. Have I read what you are saying or the situation wrongly?
Posted by Dan_raven (Member # 3383) on :
quote:Further, I don't see how it would serve the Bush administration to stop it in this way. But it's surely possible that they are in fact incompetent and untrustworthy enough to do this.
Remember Dag, that when this investigation was quashed, it was done in a quiet, beaurocratic, sort of way. The investigators lined up to look into the situation, and were denied security clearance. No explanation was originally given. The probe actually continued for several weeks as far as it could without the security clearances, before the head of the agency announced that the probe had hit a dead end.
It was quietly quashed.
Until the upset members of this probe risked their careers to bring this information to the press, and to congress.
The quiet beaurocratic squashing of the investigation back-fired on them. It didn't have to, but it did.
So the question remains, is the odds greater that one of these people is a national security threat, or that some one in the administration wanted to quietly silence this probe without facing the political heat of an out right command to cancel it.
Posted by MrSquicky (Member # 1802) on :
quote:Until the upset members of this probe risked their careers to bring this information to the press, and to congress.
I think that might be a bit over-dramatic a characterization. From what I understand of this story, it wasn't them coming forward, so much as it was the press asking "What is the state of your investigation?" and being answered truthfully, that they had to close the investigation because they were being denied access. I could be mistaken about that though.
Posted by Dagonee (Member # 5818) on :
quote:I'm not sure what would prevent them from denying this clearance only to people they suspect of leaking information, even if they couldn't prove that these people were doing so.
Here's one possible scenario:
1) A particular document has been leaked. 2) They have decent evidence that the leaker was in one of three offices. 3) They can't narrow it down further. 4) The leak is related in some way to the NSA program and seems to be motivated by civil libertarian concerns.
There are only something like 12 attorneys on the OPR Washington staff.
I can't speak to this in DoJ, but I know similar things have been done in the Navy (keeping one office out of the loop on certain announcements, for example, because they thought the leak was coming from there but couldn't prove it).
quote:So the question remains, is the odds greater that one of these people is a national security threat, or that some one in the administration wanted to quietly silence this probe without facing the political heat of an out right command to cancel it.
And you've got no way to answer this question accurately.
Someone asked "Why is this the only time they've been stopped?" I gave another possible reason, one with as much evidence as the other one being bandied about.
Posted by Morbo (Member # 5309) on :
quote:Originally posted by Dagonee:
quote:So the question remains, is the odds greater that one of these people is a national security threat, or that some one in the administration wanted to quietly silence this probe without facing the political heat of an out right command to cancel it.
And you've got no way to answer this question accurately.
Someone asked "Why is this the only time they've been stopped?" I gave another possible reason, one with as much evidence as the other one being bandied about.
Evidence, true. The only evidence we have is the public statements. But we can all judge the liklihood of a)an office in the DoJ being a real security theat vs b)a politically motivated unique and unprecedented denial of security clearance to stop an investigation.
The fact that it's unprecedented is a very strong indication that the denial of security was for political and not realistic security concerns.
Unless you agree with this, Dag :
quote: "Almost all leakers are lawyers. That's the bottom line."--former New York Times executive editor Howell Raines
quote:But we can all judge the liklihood of a)an office in the DoJ being a real security theat vs b)a politically motivated unique and unprecedented denial of security clearance to stop an investigation.
The unprecedented and unique nature of this is explained by either possibility: Either this is the first time the office has been suspected of leaks in this manner, or this is the first time someone has tried to stop their investigation via security clearance denial for political reasons.
Posted by Morbo (Member # 5309) on :
Yes, but the probabilities are not 50/50, Dag. We've all seen investigations stonewalled in various heavy-handed and subtle ways by people in power, and this has all the earmarks of such a stonewalling. In the end, it's subjective, of course. In the end, more than bare reported facts weight the probablility estimates for each individual--all their past experience in similar situations is nuanced into the calculation as well.
Posted by Morbo (Member # 5309) on :
With an administation that has, in the words of Sen. McCain, "slow-walked and stonewalled" previous investigations, and cynically used NSA leak investigations as a convenient McGuffin to do so, they have lost the benefit of the doubt in that probability calculation.
Posted by Dagonee (Member # 5818) on :
quote:Yes, but the probabilities are not 50/50, Dag. We've all seen investigations stonewalled in various heavy-handed and subtle ways by people in power, and this has all the earmarks of such a stonewalling.
You have no basis for saying this. For one thing, we apparently haven't seen investigations by this office stonewalled in this manner before, whereas I have personally witnessed offices being cut out of the loop on mere suspicion of unprovable leaks.
quote:In the end, more than bare reported facts weight the probablility estimates for each individual--all their past experience in similar situations is nuanced into the calculation as well.
Exactly. Past experience for stopping this office = 0.
quote:With an administation that has, in the words of Sen. McCain, "slow-walked and stonewalled" previous investigations, and cynically used NSA leak investigations as a convenient McGuffin to do so, they have lost the benefit of the doubt in that probability calculation.
I don't buy this argument as adding additional weight because Bush's critics pull the trigger on it far too often. I commend to your attention once again the B.S. people here said about the lack of contempt charges against Novak, in the face of many concrete reasons why their charges were wrong.
quote:With an administation that has, in the words of Sen. McCain, "slow-walked and stonewalled" previous investigations, and cynically used NSA leak investigations as a convenient McGuffin to do so, they have lost the benefit of the doubt in that probability calculation.
Where's your evidence that these refusals weren't also based on security concerns?
Posted by Morbo (Member # 5309) on :
"Similar situations" goes beyond just the history of the OPR.
True, there was lots of BS spread about the Novak case. But the obvious, likely, and true judgement was that he wasn't charged with contempt because he gave up his sources to the grand jury. So is your point, what, because there was some unintelligent speculation about Novak's case therefore _____?
Posted by Morbo (Member # 5309) on :
quote:Originally posted by Dagonee: For one thing, we apparently haven't seen investigations by this office stonewalled in this manner before, whereas I have personally witnessed offices being cut out of the loop on mere suspicion of unprovable leaks.
In this sentence, you're restricting your notice of stonewalling to this particular office, while considering many previous leak cases in general. Edit: Also, you're speculating that there is a leak, with no basis in fact other than denial of clearances. Just as I'm speculating that the denial of clearance is politically motivated. It really comes down to subjective analysis of the liklihood of one or the other. I think the stonewalling is more likely because there is great motivation for the investigation to be stymied as much as possible, at least until after the Nov. elctions, to avoid further scandal. Denial of clearances is a tidy, convenient, and difficult to challenge excuse to stop the investigation. It's like a student complaining to a teacher "The dog leaked my homework! Honest!"
edit2:We apparently haven't seen this office cut out of the loop before, for any reasons. Not completely like this. So your point is weak.
[ July 22, 2006, 05:55 PM: Message edited by: Morbo ]
Posted by Dagonee (Member # 5818) on :
quote:Denial of clearances is a tidy, convenient, and difficult to challenge excuse to stop the investigation
It's also a valid response to a possible leak.
All you've shown, over and over again, is that the known facts are consistent with both theories.
And the only reason you have for preferring one theory over the other is your judgment of the motivations of the Bush administration.
Posted by Morbo (Member # 5309) on :
Whereas you refuse to factor in those motivations in any way. Or consider any other data beyond the bare facts.
It' been fun debating, but I'll have to get back to this later. Perhaps there really are 57 Communist leakers in the OPR?
edit: One last point: if leakers in the OPR are suspected, why hasn't there been an investigation of that? And how could they leak about the NSA case before they had clearance to investigate it?
Posted by Rakeesh (Member # 2001) on :
How, in the absence of any 'evidence' except speculation, can you consider these other things data Morbo?
Personally, I mistrust this latest incident as being motivated purely by security concerns. But that mistrust is about as weighty as water vapor, no matter how much I believe it.
As for why there has not been an OPR investigation...just how much publicity do you require about serious security breaches within the government before you will be satisfied?
Posted by Dan_raven (Member # 3383) on :
Dag, you are right. We don't have enough information to make a conclusive decision on whether this was a true security situation, or a politically motivated coverup.
And we never get that information.
In fact, from the Present Administration, we get very little information.
All we have left is speculation.
The press gains little from the administration other than talking points. All they have is specualtion.
All that congress gets is talking points, presidential perogative and stay the course. All they can use is speculation.
The talk about WMD came down to President Bush saying, "Trust me."
The talk about the great job FEMA was doing in those first days after Katrina were administration promises of "Trust me".
Can you understand, Dag, why people are hesitant to Trust the President?
Posted by Dagonee (Member # 5818) on :
quote:Whereas you refuse to factor in those motivations in any way.
By "those" motivations you mean the ones you've assigned to them. You have no evidence that the administration thinks the investigation will lead to greater scandals. You've simply assumed that they have this motivation, with no evidence that they do.
The administration has consistently tried to limit who knows about this program. People have bitched about this from day 1.
quote:if leakers in the OPR are suspected, why hasn't there been an investigation of that?
There has been an investigation into the identity of the leakers. You have no idea if the OPR was investigated or not.
quote:And how could they leak about the NSA case before they had clearance to investigate it?
Because a lawyer involved in the initial planning went to the OPR for advice? You think leaks only happen from people w/ clearance?
Again, you are the one giving weight to your suppositions. I'm presenting another theory that is consistent with known facts.
Posted by Dagonee (Member # 5818) on :
quote:Can you understand, Dag, why people are hesitant to Trust the President?
And can you understand, after hearing accusations made time and time again by people who insist they can't trust the president that have later been proved wrong, why I don't trust you to assess what the president is doing or why?
Posted by TomDavidson (Member # 124) on :
Who would you trust to assess the president's trustworthiness?
Posted by Dagonee (Member # 5818) on :
I don't trust anyone on this board's assessment over my own, and that's all that's relevant to this conversation.
Posted by TomDavidson (Member # 124) on :
Leaving aside what's relevant to this specific conversation, on the grounds that threads deviate all the time, who would you trust to assess the president's trustworthiness?
Stephen Colbert has the following thing to say about experts: "Pick a field that can't be verified....Security experts are in this category. They have security clearances; we don't. We can't question the expertise of the NSA because we are not in the NSA."
Posted by Dagonee (Member # 5818) on :
Someone with particular knowledge of a particular fact which would be relevant to my making an assessment.
I seldom accept other people's opinions on the trustworthiness of another. I will except their "testimony" as to specific facts that will inform my judgment.
I can't think of a single person in the press whose judgment I trust in that way, on either side of the political spectrum.
In personal matters, there are a very few people whose intuition I'll rely on until my own tells me something contradictory or I have specific facts to judge.
Posted by Kwea (Member # 2199) on :
quote:Originally posted by Irami Osei-Frimpong: It's kind of like using your real name.
Bullshit. I am moral. I am honest. I am not hiding anythihgn, really.
And I use a screen name.
Anyone who wants to know my name here can find it, and the town I live in...hell, even where I work...in less than 5 min.
Perhaps your only reason for a screen name would be to hide something. That doesn't mean that there are no other reasons for others.
Posted by Bob_Scopatz (Member # 1227) on :
The specific claim here was that this group within the Justice Department couldn't pass a background check for a security clearance, right?
Otherwise, on what basis was it denied?
So...I think Tom's question is a legitimate one. If the entity being investigated controls who can see the data-trail, then suddenly they have put themselves above the law. At least this law (the one that authorizes investigations by OPR).
IMO, Congress needs to take this on. If I understand it correctly, Congress can require an investigation by an independent prosecutor and the Admin would either have to give that person access to the information, or face "what?": Congress would just appoint someone else? Zero out the NSA's budget?
I think there's a point here where we are being told "trust us, or not, it doesn't matter." Short of impeachment, there doesn't seem to be much that Congress can really do if the Administration stonewalls.
This is just one of the many reasons why GWBush tops my list (edging out Nixon and Reagan) as the worst President in our history. Not that he has managed to gain this overwhelming power, but that he has asserted it, and used it.
I see this as a Constitutional crisis. My take on it is that we actually may need to rethink the whole Executive branch of goverment and maybe do away with the concentration of power in one single individual.
Posted by Dagonee (Member # 5818) on :
quote:So...I think Tom's question is a legitimate one.
On what basis is it a legitimate question? I'm stating that I won't take a random internet poster's assessment of something I can assess myself.
The purpose of OPR is to investigate potential wrongdoing by justice department lawyers. It is NOT the appropriate venue for an investigation fo the type being demanded here.
In fact, since having a colorable argument for the legality of the NSA program and presenting it honestly and completely would probably exculpate any DoJ lawyer of wrongdoing, any report they conducted would be exactly the kind of thing Tom hates. It would be much of the same stuff Tom's been taking me to task for doing.
quote:Congress can require an investigation by an independent prosecutor
First, due to the lapse of the special prosecutor statute, Congress would have to pass a bill to appoint a special prosecutor, which means 2/3 if they wish to act without the president. Or Congress could investigate themselves - their powers are quite broad to do so.
quote: and the Admin would either have to give that person access to the information, or face "what?"
Then they go to court to get access. If denied, then impeachment.
quote:Short of impeachment, there doesn't seem to be much that Congress can really do if the Administration stonewalls.
This has always been true.
quote:My take on it is that we actually may need to rethink the whole Executive branch of goverment and maybe do away with the concentration of power in one single individual.
You may be right. I hope that if this occurs, it is done with an eye to the structural realities, not the temporary political alignment. The powerful executive and the administrative state which makes it so powerful are a direct result of a concerted effort by new dealers to reign in the court's oversight over the executive and to allow vastly broader delegation of power from Congress to the Executive.
This was done because they wanted the executive to be able to make substantive decisions that seriously affected the rights of individuals and businesses without having to get congressional approval each time and without being subject to serious judicial review.
Although the courts have created a doctrine that allows more extensive review of administrative review than originally intended, the Presidency now is orders of magnitude more powerful than it was prior to the New Deal, and 90% of that change happened by the time Truman became President.
Every bit of what you have objected to with regard to Bush is predictable based on the presidency created during FDRs terms. I hope the next time someone makes a substantive structural change to the government with such far reaching effects, the people responsible look past whether the changes help them accomplish their immediate goals. And not labeling those who raise such structural concerns as obstructionists or apologists will be nice, too.
[ July 23, 2006, 09:59 AM: Message edited by: Dagonee ]
Posted by TomDavidson (Member # 124) on :
quote: I'm stating that I won't take a random internet poster's assessment of something I can assess myself.
More precisely, you're stating that you prefer your speculation to someone else's speculation. Part of the problem here is that we're at least three levels away from anything resembling actual data; we're speculating on why people might have speculated on a leak that prevents them from providing information to people speculating about low-quality speculation.
Which is the beauty of the "I don't have to tell you" strategy. Because the people who care about the truth can't actually get at it, and can even be forced into defending the administration based largely upon appeals to authority.
If there's no one you can consider a valid source who isn't obviously a tool of the administration, the administration wins.
Posted by Dagonee (Member # 5818) on :
quote:More precisely, you're stating that you prefer your speculation to someone else's speculation.
Of course. This isn't news, it's common sense. Just as you prefer your speculations to mine.
It should be noted, however, that I, unlike most of the others speculating on this aspect of the thread, have not decided that the other theory is more likely. I have proposed a single theory - one of many I could propose - as to the motive for denying OPR's security clearance.
In addition, I've seen too much such speculation based on the premise that "Bush would do that for political reasons" that's been actively disproved to rely on it, against both Clinton and Bush.
quote:If there's no one you can consider a valid source who isn't obviously a tool of the administration, the administration wins.
Which means that we should use the available means for investigating.
quote:Which is the beauty of the "I don't have to tell you" strategy. Because the people who care about the truth can't actually get at it, and can even be forced into defending the administration based largely upon appeals to authority.
No, they are simply not forced to accept what several of you are using as a basic premise in your analysis: that if there's a nefarious reason for an action of the Bush administration, it's likely the true one.
And, I'm forced to point out once again, OPR's investigation would provide none of the answers any of you seem to want.
Posted by Dagonee (Member # 5818) on :
Oh, and Tom, for the record, whom do you consider a valid source?
Posted by TomDavidson (Member # 124) on :
quote:Which means that we should use the available means for investigating.
Have you been calling your Congressperson on this issue? I live in Madison; my Congressperson's getting tired being the only person on the Hill advocating the sort of investigation you've recommended. What other methods, short of assassinating Congress and replacing them with individuals more concerned with ethics, would you recommend that could possibly address this issue in a timely manner?
quote:OPR's investigation would provide none of the answers any of you seem to want.
What's odd is that you're assuming the "answers" we want are in fact a way of "getting" the administration. At this stage, I'm happy for any insight into the functioning of the administration at all. Posted by Dagonee (Member # 5818) on :
quote:Have you been calling your Congressperson on this issue? I live in Madison; my Congressperson's getting tired being the only person on the Hill advocating the sort of investigation you've recommended. What other methods, short of assassinating Congress and replacing them with individuals more concerned with ethics, would you recommend that could possibly address this issue in a timely manner?
What would YOU recommend, Tom? A coup? I'm at a loss as to what you think should be done with this, since whenever I suggest the things that can be done legally, you somehow manage to turn that into a implied or explicit attack on my credibility.
Please, once and for all, what do you want done right now that doesn't involve magically making someone in the administration change their mind?
quote:What's odd is that you're assuming the "answers" we want are in fact a way of "getting" the administration.
No, I'm not. I'm not even sure how you read that into the quoted sentence.
Posted by TomDavidson (Member # 124) on :
quote: Please, once and for all, what do you want done right now that doesn't involve magically making someone in the administration change their mind?
Well, I've called for impeachment before, and you've never passed up the opportunity to mock me for it. But I said then, and I'll say now, that violating one's oath of office seems like a perfect reason to get impeached.
That said, I can't imagine this Congress doing that, either.
Which is a great reason to revisit this whole "checks and balances" thing.
Posted by Dagonee (Member # 5818) on :
quote:But I said then, and I'll say now, that violating one's oath of office seems like a perfect reason to get impeached.
And to discuss this, one needs to determine if one has violated the oath. Since I'm assuming you're referring to the upholding the Constitution portion of that oath, that would involve discussing those issues that you call me gutless and evil for discussing.
Posted by TomDavidson (Member # 124) on :
The thing is, I'm not sure that violating the letter of the Constitution is the only way in which the Constitution can be violated. Surely it is conceivable that someone could despoil every principle outlined in the Constitution without technically going outside the fuzzy boundaries created by legal precedent?
Posted by Dagonee (Member # 5818) on :
quote:The thing is, I'm not sure that violating the letter of the Constitution is the only way in which the Constitution can be violated. Surely it is conceivable that someone could despoil every principle outlined in the Constitution without technically going outside the fuzzy boundaries created by legal precedent?
An impeachment is a criminal prosecution. Do you want criminal prosecution to be available against you for violating the "spirit" of the law when you haven't violated either the "letter" or interpretive precedent.
Beyond that, you are sorely mistaken if you think my analysis has been about the letter of the constitution. It's an almost laughable claim.
Nice emphasis, by the way. Your derision of the idea of precedent and rule of law is quite clear. It's scary, of course, and also intensely impractical.
But if you want to turn impeachment and removal into nothing more than the ability for Congress to thwart the electorate because they don't like what the president has done and come up with some way to describe that act as violative of the spirit of the constitution, I guess I'll just remain glad that you have only one vote.
Posted by Bob_Scopatz (Member # 1227) on :
quote:I'm stating that I won't take a random internet poster's assessment of something I can assess myself.
My problem is, I think, the same as one you've mentioned repeatedly -- that we do not have the information to make an assessment.
I would've been happy to see the OPR investigation go forward AND still have other investigations happen as well.
Here's the bottom line for me -- before we decide that warrantless searches are a good and necessary thing, I believe we should be having a full and open discussion of it. This, to me, is such a radical departure from the way I understood our system of government to work -- and the protections I thought were guaranteed to citizens -- that I really want more than an assurance that there's nothing unconstitutional about it.
I want it probed and picked at from every angle.
And THEN, and only then, if we reach some sort of consensus that it is necessary and valid, and can be accomplished without leaving too large an opening for abuse, would I agree that it should be given a trial. And at that, the trial should have some limits and oversight.
What we have now is nothing of the sort. It's more of a "can we do it? There's nothing to stop us" kind of thing from what I see. A very few people decided it was necessary. They didn't have anyone outside to review it. The same people sit down every 45 days to decide if they still think its necessary. Or so they say. Again, they don't even have to disclose the records of those conversations even happening.
It's not such a great stretch to FEAR the worst. It's not that I even have to assume it, or believe GWB's Administration capabile of abuse. It's enough that I fear that abuse. And it wouldn't matter who was in the White House, I would still fear the abuse. And even if the Bush Administration is being very careful and not abusing the program, we have nothing to guarantee that the next occupant of the White House won't abuse this power. There's no check, no balance except the ultimate ones -- the ones that require the internal government equivalent of the "nuclear option." If stopping something requires that we paralyze our government in time of war...well shoot, then we are all going to sit there gazing at our navels while what we all thought were rights are simply erased.
All the President (any president) has to do is ensure that we're at war with SOMEONE at all times in order to make it too dangerous to deal with their abuses.
I have acknowledged my biases against President Bush. But that doesn't mean that I can't also take the long view on something like this. That even if he has reined in his own people, this time, the next guy might not be even that strong, or aware.
That's what worries me most. That in a few years or decades, we really could end up with a secret police in this country and everyone will be sitting there scratching their heads trying to reconstruct how the hell it happened. But by then it'd be too late.
And thanks for the info on FDR. I knew a bit about the expansion of the Supreme Court in order to sway that group. I didn't know the rest of it.
And really, culturally we have this hero meme that makes us believe that one man, vested with power, can somehow save us. We're stupid that way.
And, as you said, short-sighted.
Posted by TomDavidson (Member # 124) on :
quote:An impeachment is a criminal prosecution.
See, I don't think it's at all clear that it has to be -- and I think history shows that, at the level we're talking about, it almost never is. If the flap over Clinton proved anything, in fact, it proved that you can be pretty much impeached at will, provided enough people dislike you.
Posted by Rakeesh (Member # 2001) on :
Which means what with regards to how we should feel about using impeachments for that purpose?
Posted by TomDavidson (Member # 124) on :
Nothing at all. If you're uneasy using impeachments for anything but criminal prosecution, that's your prerogative.
Personally, I would rather use impeachment for every little thing under the sun, because I hate the executive branch as it's implemented in American politics. And because I think it's much easier for an ignorant electorate to hold an impeachment-happy Congress to account than for them to be expected, every four years, to remember whether the current consensus on their favorite news channel tells them that they can trust their president.
Still, if you'd rather that impeachment be reserved for proven felonies or something, that's fine; that history disagrees doesn't mean that you're not right about the way it should be.
Posted by Dagonee (Member # 5818) on :
quote:If the flap over Clinton proved anything, in fact, it proved that you can be pretty much impeached at will, provided enough people dislike you.
He was impeached for a felony. He wasn't "convicted" (removed) for it.
Johnson was also impeached for a crime. He also wasn't convicted.
Nixon was threatened with impeachment for a felony.
quote:that history disagrees
It doesn't.
Posted by Rakeesh (Member # 2001) on :
Given that there have been...what, two?...impeachments in US history, what history says about how they should be used is minimal indeed. It's happened exactly twice against Presidents, seventeen times in all.
As I said. As I understand it, there's pretty much no mechanism in place to prevent Congress from impeaching a sitting president at their leisure; we are merely supposed to take on faith that they are acting as agents of the law instead of partisan legislators. Barring a Supreme Court case to specifically rule out any partisan action, what impeachment is "for" is very much up in the air.
Posted by Irami Osei-Frimpong (Member # 2229) on :
Then saying that history disagrees is misleading. You should say that history is silent on the subject.
Posted by TomDavidson (Member # 124) on :
As you wish. Posted by Dagonee (Member # 5818) on :
quote:As I said. As I understand it, there's pretty much no mechanism in place to prevent Congress from impeaching a sitting president at their leisure; we are merely supposed to take on faith that they are acting as agents of the law instead of partisan legislators. Barring a Supreme Court case to specifically rule out any partisan action, what impeachment is "for" is very much up in the air.
The Supreme Court will almost certainly not touch impeachment except for enforcing the bare rules: majority House, 2/3 Senate, in that order.
So, yes, Congress can impeach for absolutely whatever it wants. Just as, technically, the Supreme Court can strike down a law as unconstitutional for whatever reason it wants.
Still, that's not taking it on faith. We get to evaluate the entire House and 1/3 the Senate pretty much each time they do it.
Posted by TomDavidson (Member # 124) on :
Which is my point. I would rather we impeach willy-nilly and evaluate our House and Senate on the quality (and perhaps quantity) of that decision than force people to decide, once every four years, whether they can actually trust their secretive executive branch. In fact, you can almost argue that this is what happened with the Clinton impeachment. Posted by Dagonee (Member # 5818) on :
Which is why the Clinton impeachment was stupid, even though it met the constitutional definition.
If we were to move to that, I'd much rather do so explicitly.
Posted by TomDavidson (Member # 124) on :
Amen to that. I wish I had enough faith in our electorate and our elected officials to think that we're capable as a country of implementing anything explicitly.
Posted by MrSquicky (Member # 1802) on :
quote:Arlen Specter, Pennsylvania, Chairman United States Senate Committee on the Judiciary Washington, DC 20510-6275
June 7, 2006
The Honorable Richard B. Cheney The Vice President Washington, DC
Dear Mr. Vice President:
I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the Administration of my own party, but I do so because of their importance.
No one has been more supportive of a strong national defense and tough action against terrorism than I. However, the Administration's continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.
On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration's electronic surveillance program.
Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in-controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration's position on this legislation, I have been unable to get any response, including a "no".
The Administration's obligation to provide sufficient information to the Judiciary Committee to allow the Committee to perform its constitutional oversight is not satisfied by the briefings to the Congressional Intelligence Committees. On that subject, it should be noted that this Administration, as well as previous Administrations, has failed to comply with the requirements of the National Security Act of 1947 to keep the House and Senate Intelligence Committees fully informed. That statute has been ignored for decades when Presidents have only informed the so-called "Gang of Eight," the leaders of both Houses and the Chairmen and Ranking on the Intelligence Committees. From my experience as a member of the "Gang of Eight" when I chaired the Intelligence Committee of the 104th Congress, even that group gets very little information. It was only in the face of pressure from the Senate Judiciary Committee that the Administration reluctantly informed subcommittees of the House and Senate Intelligence Committees and then agreed to inform the full Intelligence Committee members in order to get General Hayden confirmed.
When there were public disclosures about the telephone companies turning over millions of customer records involving allegedly billions of telephone calls, the Judiciary Committee scheduled a hearing of the chief executive officers of the four telephone companies involved. When some of the companies requested subpoenas so they would not be volunteers, we responded that we would honor that request. Later, the companies indicated that if the hearing were closed to the public, they would not need subpoenas.
I then sought Committee approval, which is necessary under our rules, to have a closed session to protect the confidentiality of any classified information and scheduled a Judiciary Committee Executive Session for 2:30 P.M. yesterday to get that approval.
I was advised yesterday that you had called Republican members of the Judiciary Committee lobbying them to oppose any Judiciary Committee hearing, even a closed one, with the telephone companies. I was further advised that you told those Republican members that the telephone companies had been instructed not to provide any information to the Committee as they were prohibited from disclosing classified information.
I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point. This was especially perplexing since we both attended the Republican Senators caucus lunch yesterday and I walked directly in front of you on at least two occasions enroute from the buffet to my table.
At the request of Repubican Committee members, I scheduled a Republican members meeting at 2:00 P.M. yesterday in advance of the 2:30 P.M. full Committee meeting. At that time, I announced my plan to proceed with the hearing and to invite the chief executive officers of the telephone companies who would not be subject to the embarrassment of being subpoenaed because that was no longer needed. I emphasized my preference to have a closed hearing providing a majority of the Committee agreed.
Senator Hatch then urged me to defer action on the telephone companies hearing, saying that he would get Administration support for my bill which he had long supported. In the context of the doubt as to whether there were the votes necessary for a closed hearing or to proceed in any manner as to the telephone companies, I agreed to Senator Hatch's proposal for a brief delay on the telephone companies hearing to give him an opportunity to secure the Administration's approval of the bill which he thought could be done.
When I announced this course of action at the full Committee Executive Session, there was a very contentious discussion which is available on the public record.
It has been my hope that there could be an accommodation between Congress's Article I authority on oversight and the President's constitutional authority under Article II. There is no doubt that the NSA program violates the Foreign Intelligence Surveillance Act which sets forth the exclusive procedure for domestic wiretaps which requires the approval of the FISA Court. It may be that the President has inherent authority under Article II to trump that statute but the President does not have a blank check and the determination on whether the President has such Article II power calls for a balancing test which requires knowing what the surveillance program constitutes.
If an accommodation cannot be reached with the Administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement of that compulsory process if it appears that a majority vote will be forthcoming. The Committee would obviously have a much easier time making our case for enforcement of subpoenas against the telephone companies which do not have the plea of executive privilege. That may ultimately be the course of least resistance.
We press this issue in the context of repeated stances by the Administration on expansion of Article II power, frequently at the expense of Congress's Article I authority. There are the Presidential signing statements where the President seeks to cherry-pick which parts of the statute he will follow. There has been the refusal of the Department of Justice to provide the necessary clearances to permit its Office of Professional Responsibility to determine the propriety of the legal advice given by the Department of Justice on the electronic surveillance program. There is the recent Executive Branch search and seizure of Congressman Jefferson's office. There are recent and repeated assertions by the Department of Justice that it has the authority to criminally prosecute newspapers and reporters under highly questionable criminal statutes.
All of this is occurring in the context where the Administration is continuing warrantless wiretaps in violation of the Foreign Intelligence Surveillance Act and is preventing the Senate Judiciary Committee from carrying out its constitutional responsibility for Congressional oversight on constitutional issues. I am available to try to work this out with the Administration without the necessity of a constitutional confrontation between Congress and the President.
Sincerely,
Arlen Specter
AS/ph
Via Facsimile
cc: Senate Leadership Judiciary Committee Members
Posted by kmbboots (Member # 8576) on :
quote:Originally posted by TomDavidson: Have you been calling your Congressperson on this issue? I live in Madison; my Congressperson's getting tired being the only person on the Hill advocating the sort of investigation you've recommended.
![[Frown]](frown.gif)
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). But, as I did then, I can express my dismay and fear that this country is moving in a direction that I believe to be ethically wrong.
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. Now a well-thought-out opinion, that'd be great. And we do get that from various people here from time to time. But that takes real effort. And you can't just go around making people produce that stuff on demand.![[ROFL]](graemlins/rofl.gif)
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