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« Monday Music (The Anti-ID Anthem) | Main | Quotable » December 20, 2005
"I'm sorry Mr. Vice President, but I'm just a caveman."
Posted by Bill Dean Esmay profiles Carl Levin's unfrozen caveman lawyer defense, as well as the political absurdity of pretending that history started in 2001. I haven't fully digested the legal implications of this latest scandal/legitimate intelligence operation - opting for "wait-and-see" mode - but I've already developed an inkling that the Donks are overplaying their hand. Again. But that's how they've conditioned me, the Pavlovian sadists. UPDATE: Commenter Milowent links Orin Kerr's analysis over at Volokh: Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion. There's much, much more, as it's a hella thorough analysis, a prerequisite for ideologues prior to passing judgment. UPDATE: Goldstein posts another thorough round-up in the course of his take. Posted by Bill at December 20, 2005 09:46 AM | TrackBack (1) Trackback PingsTrackBack URL for this entry: Commentsorin kerr at Volokh Conspiracy has posted a detailed initial analysis of the legal issues. synopsis: My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act. My answer is extra-cautious for two reasons. First, there is some wiggle room in FISA, depending on technical details we don't know of how the surveillance was done. Second, there is at least a colorable argument — if, I think in the end, an unpersuasive one — that the surveillance was authorized by the Authorization to Use Miltary Force as construed in the Hamdi opinion. Posted by: milowent at December 20, 2005 10:06 AM That Volokh post is very helpful. I'm withholding judgment too; aside from the legal complexities, it's hard to complete an analysis without all of the underlying facts. I do agree with Volokh on this: Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. I don't see how "use of force" could be construed to include wiretapping. Also, the Article II argument would seem to give the president impossibly broad power. If it were valid, wouldn't it justify pretty much any action on the part of the president? Or am I misunderstanding the argument? Posted by: Hubris at December 20, 2005 10:48 AM Oops, Kerr, not Volokh. Damn conspiracy. Posted by: Hubris at December 20, 2005 10:50 AM Castrating the NSA should be a great selling point for Dems when the next terrorist attack happens. Posted by: TallDave at December 20, 2005 11:17 AM TallDave, that seems to be sort of an ends-based arguement. If the law prevents activities that are being done and need to be permitted, shouldn't we change the law rather than circumventing it?* *Again, I haven't yet drawn a conclusion that the law was being cirumvented. Posted by: Hubris at December 20, 2005 11:25 AM I wasn't making an argument, just an observation. The debate over legslity is continuing, with Kos simply labelling them "the illegal wiretaps" while PW, Powerline, and Instapundit address actual legal questions. Posted by: TallDave at December 20, 2005 06:58 PM I think that the presedent is clearly acting ouside the bounds set by FISA, but it is likely that congress was overstepping it's bounds when it wrote FISA to restrict the powers of the president during a war or in addessing a foreign threat. I think this one really does come down to "do the ends justify the means?" Requesting warrents would likely tip off the targets. An increase in activity in those judiciary offices would be enough to tip suspects off. 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