Sunday Morning Talk Show Thread 8 January 2006

It's not his premise, it's the Supreme court (and many other courts) ruling that Congress cannot limit an inherent Constitutional power by legislation. Congress cannot amend the Constitution by legislation, only through the specified amendment process.

I just read Dickerson v. United States, 530 US 428 (2000), and it stands for a "slightly" different principle from "The Constitution embodies certain inherent and unilateral powers in the President that Congress cannot limit."

In Dickerson, the Court held that Congress could not overrule a Court precedent (Miranda) by passing a statute. It stands for supremacy of a Court-created rule, not supremacy of the Constitution. Congress aimed, by statute passed after Miranda, to have confessions admissible in criminal prosecutions, in some cases even if a Miranda warning was not recited to the accused before the voluntary confession was given.

The principle of Dickerson, if applied to Rasul v. Bush (03-334), 542 US 466 (2004), will invalidate a statutory arrangement recently proposed by Lindsey Graham and passed by Congress, that limits Gitmo detainees access to the writ of habeas corpus.

Dickerson illuminates a battle between Congress and the Supreme Court, where the item in the balance is the individual 5th amendment right against self incrimination. I tend to agree with the logic of the dissent in Dickerson, FWIW. The excerpt below doesn't illustrate the logic, but posted here just for reading enjoyment ...

Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today's decision does not pretend that it is--and yet still asserts the right to impose it against the will of the people's representatives in Congress. Far from believing that stare decisis compels this result, I believe we cannot allow to remain on the books even a celebrated decision--especially a celebrated decision--that has come to stand for the proposition that the Supreme Court has power to impose extraconstitutional constraints upon Congress and the States. This is not the system that was established by the Framers, or that would be established by any sane supporter of government by the people.
I dissent from today's decision, and, until §3501 is repealed, will continue to apply it in all cases where there has been a sustainable finding that the defendant's confession was voluntary.

The issue before us in the NSA discussion is a rather complex interplay between the people's 4th amendment rights, the president's power to conduct war, the President's power to call and conduct war in exigent circumstances, Congress's power to call war and define it's limits, and the Court's role in adjudicating disputes. What are the limits of the inherent powers?

I'm still waiting for you to provide a citation or lead as to your assertion that Clinton used warrantless wiretapping in the context of OKC. I've looked myself, but haven't come up with any leads. Perhaps you were referring to the warrantless entry into Aldrich Ames residence?

my reading and posting abilitis are limited for the next week or so. I'm preparing for another corneal transplant and having to go without my contact lenses (which let me see 20/80) and my vision is therfore 20/800. It makes it hard for me to read, even when I crank the font up REAL BIG. What time I'm allowed to wear one lens I'm having to devote to work.

I suggest you pose your question to the lawyers at PowerLineBlog.COM, in the meantime.

I'm preparing for another corneal transplant and having to go without my contact lenses ...

Prayers and wishes for an uneventful and successful procedure.

As for correcting the original poster at Powerline, I'm satisfied having done my own review of the case offered, etc. I assumed FR might enjoy a more thorough review of the case and argument -- but then again, maybe not.

Staff Study Permanent Select Committee on Intelligence House of Representatives One Hundred Fourth Congress

Do keep in mind this is a "Congress is King" viewpoint not an objective examination of the facts. Treat this as if you were listening to a salesperson trying to sell you something rather then a balanced approach on the matter

And number two, we can do that within a legal framework that would give Americans comfort and actually give our court system comfort that the Fourth Amendment is being observed and that our system of laws that Congress has passed, including FISA, which was supposed to be the exclusive way to do electronic surveillance on Americans in America, are being observed

I'm sorry but this demonstrates a complete failure to even remotely understand how intelligence is gathered. This is NOT a case of a police official having evidence against a criminal. The way this works is not even REMOTELY like someone building a case against a criminal. There seems to be this refusal on the part of the Legal Establishment and it's advocates to consider that American Citizens conspiring with terrorist groups are now an enemy of, not a member of, our society. By conspiring with the terrorist the person is in a state of insurrection against the US Civil Authority. We, via the instrument of our Govt, have a right to protect ourselves from that threat. It is all very well for advocates of the Legal Establishment to cling to its dogma that the criminal is a citizen with rights. That dogma should NOT be applied to the terrorists.

Legal doctrine revolves around the concept that criminals are still citizens with rights. Terrorist have gone beyond criminality to being enemies of our society. They do not fit in the pat assumptions of the legal Establishment. Thankful the vast majority of the American Public is smarter then the Legal Establishment and refuse to fall for the notion that we must NEVER change anything in the law.

Sorry but Terrorism is one of the things that slips thru the cracks of the legal code. You cannot declare war on it but you cannot grant it all the protections the civil libertarian perfectionist and the knee jerk Bush Haters claim for it. Bush is advancing an idea of how to deal with the problem. Clinging blindly to per 9-11 law and attempting to expand that law to cover Terrorism is a fools choice. Bush looked at the problem, looked at the law and said here is how I view it. YOU personally disagree. FINE. That is YOUR opinion NOT the Law. The Law really is not structured on how to deal with terrorism.

People have got to get over their knee jerk Bush hate and deal with the reality that new law has to be made to deal with the problem. Law is NOT carved in stone, it evolves. Pity the knee jerk Bush haters would rather use this as another excuse to attack Bush rather then help develop the legal structures to deal with this emerging problem. Such a pity so many wish to cling to their 9-10 mindset in a post 9-11 world.

Not really. You had some really good posts, especially the one that had a special award. When you stated how to be a member of a political party it was more than memorable, it struck a nerve form many and it was ever so accurate.
Now if you could just give up the igloo....

Hard to argue with what you say MNJ, if we can't try and intercept terrorists calls during a time when our buildings are being bombed when can we!

One problem I see is that no matter what the reading of the law it will always depend on who is in office at the time. When the clintons were in office we know that the game was to cover their butts first and if the country got any protection it was sheer luck, reference able danger.

With GW in office we know differently. He is a man of great character(which drives the rats nuts) and will always put the country above his personal ambitions. Huge differences there no matter what the law.

Congratulations

Don't expect this to get much play:
http://newsmax.com/archives/ic/2006/1/7/120534.shtml ...
Dubbed "Operation Merlin," the plan was supposed to steer Iranian physicists off track ...

1/8/2006
A Transcript from Meet the Press
Tim Russert interviewing James Risen
MR. RUSSERT: Another story that was not published by The Times that has created an uproar in the intelligence community was Operation MERLIN, which you talk about it in your book.
And let me show it on the screen. "Operation MERLIN has been one of the most closely guarded secrets in the Clinton and Bush administrations. And it may not be over. Some officials have suggested it might be repeated against other countries. ... It's not clear who originally came up with the idea, but the plan was first approved by President Bill Clinton. After the Russian scientist's fateful trip to Vienna, however, the MERLIN operation was endorsed by the Bush administration, possibly with an eye toward repeating it against North Korea or other dangerous states."
An operation where an agent would present fake blueprints to "help" Iran or another country build a nuclear bomb, but because it was fake, it would, in effect, delay their operation. The CIA has issued a very sharp comment about you, and let me read it. "It is most alarming that" the author "discloses information that he believes to be ongoing intelligence operations, including actions as critical as stopping dangerous nations from acquiring nuclear weapons. Setting aside whether what he wrote is accurate or inaccurate, it demonstrates an unfathomable and sad disregard for U.S. national security and those who take life-threatening risks to ensure it."
By revealing this operation, which you acknowledge may be ongoing, aren't you violating national security?
MR. RISEN: No, I don't believe so. First of all, this operation in particular took place six years ago, well before--you know, long before 9/11. And the reason that I think it's important to talk about this is because there are people who believed that it was mishandled, and it's possible we actually aided the Iranian nuclear program rather than try to stop it; that this operation was conducted so poorly, it reflects the larger issue of one of the issues that I deal with in my book, which is the failure of the CIA to adequately deal with weapons of mass destruction and intelligence related to weapons of mass destruction. They now have a long history of repeated failures and repeated mistakes when you deal with--on WMD issues, as we saw in Iraq. And I think that the agency's credibility on the issue of weapons of mass destruction has to be in question.
MR. RUSSERT: Aren't you tipping the Iranians and the North Koreans as to what might be an ongoing operation?
MR. RISEN: I don't believe so. I think that this--as I said, this operation took place six years ago, and I think Homer first revealed the sources and methods of the Trojan horse a long time ago.
MR. RUSSERT: But you do say it may be used against North Korea.
MR. RISEN: Well, you could use similar kinds of things, not this specific operation.
MR. RUSSERT: You also write about another situation where a CIA agent at Langley sent out an e- mail, which got in the wrong hands, and it created the roll-up, in your words, of CIA agents in Iran and that we went blind there. People in the intelligence community say that is just dead wrong, that there are not any CIA agents in prison, there was no roll-up. How do you respond?
MR. RISEN: Well, I think they now argue--they don't deny that this huge mistake happened.
They -- what they, I believe, say, is that the damage wasn't as severe as I say it was.
That's possible. It's possible that they've done a damage assessment recently since I first heard about it. But I think that the point of that incident was the complete breakdown of their safeguards in protecting their sources in Iran shows a--to me, just a huge mistake.
MR. RUSSERT: But there may not have been a roll-up and we may not be blind in Iran, as you suggest.
MR. RISEN: It's--well, I think it raises--what they did was they put their entire network at risk, and so I guess there's a question of whether all of them were rolled up or not.
http://www.charlesadler.com/News/NPViewArticle.asp?cmd=view&articleid=679