That’s quite a shortening of you can my previous posts on the topic (which include comprehensive sourcing of primary and secondary documents) . You can find those here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, and here.

Not to mention, I don’t argue that separation of powers is for idiots; instead, I said this battle is over a legal program, and that the battle being fought is a political one involve a separation of powers dispute.

But hey, make with the dismissive, condescending snark.

Sometimes I’m embarrassed BEING on some people’s blogrolls.

I thought the blogosphere was built on dismissive, condescending snark, personally. Or was that VC money? I forget…

For what it’s worth, I’m just flabbergasted that conservatives and semi-libertarians are making arguments for the constitutionality (never mind the legality or propriety) of assigning virtually plenary powers to the executive in matters that the executive alone decides are part of his Article II powers as commander-in-chief. I dare say if this program had been revealed during the Clinton administration (versus people today unearthing evidence of him doing it in the past and throwing that in critics’ faces), a lot of folks on the right and with libertarian tendencies would be singing very different tunes about this.

And, Jeff, I think you’d be one of them. Be honest: would you want John Kerry asserting the authority to just tap anybody’s phone who he has a hunch might be conspiring with terrorists, with absolutely no oversight from anybody who isn’t a direct political appointee of his, on the basis of a statute that doesn’t say the word “wiretap” (or “eavesdropping” or anything else except “force”—a rather novel term for “passive interception of electronic communications”) and some handwaving in the direction of Article II? Because that’s exactly what Gonzalez asserted was the current administration’s stance before Congress this week.

I’m certain your assessment of the politics is right; who cares about “technicalities” like civil liberties when there might be terrorists around the corner (which, of course, is going to be until the end of human existence)? Just because it’s “popular” or is a good “wedge issue” for the GOP doesn’t make it right.

Still, I love the Sheehan/Billy Jack and the Martha Stewart prison diaries… how’s that for condescending?

I was on record very early on as saying that had Kerry been President and instituted the program, I would have supported him wholeheartedly.

Because the President’s JOB is to protect the country, and asserting Article II powers is part of the process during war.

Forget my assessment of the politics. That came only after long and studied considerations of the program’s legality AND propriety. And now you have the ridiculous spectacle of Dems saying, “oh, we were never against it, we just wanted you to ask our permission. Because face it, W: you simply can’t be trusted with your Article II powers or as commander in chief.

Signals intel is a military operation. FISA is inapposite and likely unconstitutional. My take on the separation of powers question is precisely the OPPOSITE of how you’ve portrayed it.

Congress, by trying to constrain the Presidents Article II powers using means other than their customary checks: impeachment, purse strings—neither of which they will do, because they haven’t a legal leg to stand on—is trying to co-opt the President’s CiC powers and outsource them to a FISA judge. Plenary powers? I wasn’t aware the CiC job involved running each decision through a parliamentary congressional vote.

Anyway, I replied on my site. I’m tired, and very pissed off.

First, my apologies for putting words in your mouth. I’ll take your word for it that you’d have supported this if Kerry did it.

Now to the rebuttal. Asking for judicial review by a FISA judge (which, in the case of warrants, is essentially a rubber stamp) is not asking for a congressional vote, and it’s disingenuous to argue that it is. Just because NSA is doing the spying on US citizens instead of the FBI (or another domestic law enforcement agency) doesn’t automatically make it part of the Article II CiC power—otherwise, the president could do whatever the heck he wanted with the military, foreign or domestic.

As for impeachment, I doubt this Congress would impeach and remove Nixon. And, as for the purse strings, considering that (a) this program wasn’t previously revealed to 90% of Congress and (b) slapping a rider in an appropriations bill last year saying “no funds shall be spent by the NSA to monitor any conversation involving a U.S. citizen within the boundaries of the United States except upon a warrant issued by a federal judge” would be rather improbable in the absence of evidence that such a program existed, that isn’t a lot of support for your argument.

I’m tired, and very pissed off.

Well, at least we’re in agreement on something. Except the pissed off part.

Chris:
A very simple question, if I may: are we, or are we not, at war? In either case, what are the appropriate actions to take in order to intercept and interdict any potential threats against our homeland?

It seems to me as if you’re making the mistake of thinking that the struggle against international Islamist terrorism, sponsored by rogue regimes in Damascus and Tehran and ostensible “allies” in Riyadh, is a law enforcement matter. We cannot be isolationists and maintain our security – 9/11 showed that fairly definitively. We are not looking at “citizen’s” phone calls, email, etc. in an effort to make arrests; we’re looking for actionable intelligence to prevent further strikes against the homeland.

Being at war (and, incidentally, I agree that the AUMF is substantively a declaration of war by Congress) doesn’t exempt the president from either (a) needing specific statutory authority to fundamentally alter the due process normally afforded American citizens under the 4th Amendment or (b) having his actions subject to judicial review and congressional oversight.

So, the appropriate action in this case is to get explicit congressional approval for this program.

Hm. Anyone who thinks warrantless collection of foreign intelligence information – even from persons in the United States – constitutes any kind of violation of the 4th Amendment has exactly zero familiarity with the relevant case law. See esp. United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (“virtually every court that had addressed the issue had concluded that the President had the inherent power to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.”).

There is no question but that the warrantless wiretaps would be legal without FISA. The question is whether by FISA the Congress has captured the field and whether by statute a Congress can usurp a president’s constitutional authority.