tecoyah

As decided by the players.....this debate will center around Impeachable offenses....and George W. Bush. The debate Rules and Timeline are as follows:

I. Tue 1/2 niftydrifty's argument

II. Wed 1/3 TOT rebuttal

III. Thu 1/4 niftydrifty counter-rebuttal

IV. Fri 1/5 TOT's final word

Good Luck to you Both

__________________
Self-Banned

niftydrifty

In order to understand the foundation by which George W. Bush has made himself impeachable, I feel it is helpful to explore the roots of his, and key members of his administration's attitude toward executive power. Dick Cheney and Donald Rumsfeld were once young members of Gerald Ford's cabinet. According to Robert Greene, a Ford biographer and historian, Cheney and Rumsfeld were "eager young men willing to learn the art of government at his [Ford's] side." Post Watergate, Congress passed the War Powers Resolution, which limited executive power. Regarding the Resolution, Ford said that it encouraged "too much tampering with the basic machinery by which the United States government has run successfully for the past 200 years." (http://www.nytimes.com/2006/12/30/wa...n/30roots.html)

Ford may have been right in this instance, but it seems that this episode whetted the appetites of Rumsfeld and Cheney for future battles against restrictions on executive power, as they both have mentioned it on numerous occasions.

In 1995, Rumsfeld wrote, "One of the problems in government is legislative micromanagement of the Executive Branch. Congress imposes so many restrictions, requirements, and requests on the Executive Branch, no one of which is debilitating, but in the aggregate it is like the threads the Lilliputians used to prevent Gulliver from moving." (Thoughts from Business on Downsizing Government) Rumsfeld's arrogant statement is confounding, and revealing. The Lilliputian's “threads” are really none other than the checks and balances so necessary to our form of government, and central to our Constitution. And as for Congress's “restrictions and requirements,” ... well, another term for these pesky things would be ... laws.

When Dick Cheney appeared on ABC's This Week in 2002, he too complained about checks and balances, and of having to adhere to "restrictions" passed by Congress. He said, "...in 34 years, I have repeatedly seen an erosion of the powers and the ability of the president of the United States to do his job. We saw it in the War Powers Act. We saw it in the Budget Anti-Impoundment Act. We've seen it in cases like this before, where it's demanded that presidents cough up and compromise on important principles .... It's wrong. Because the net result of that is to weaken the presidency and the vice presidency." (The Vice President Appears on ABC's This Week (Text Only)) According to Cheney, it is a problem when the Executive Branch must compromise with another branch of Government.

Indeed, Vice President Dick Cheney has made it clear that the Executive Branch ought to operate unfettered by Congress. In 1982, The Boland Amendment was attached as a rider to the Defense Appropriations Act of 1983. The House of Representatives passed the Boland Amendment, and was signed by Ronald Reagan. The amendment outlawed US assistance to the Nicaraguan Contras. But astonishingly enough, Dick Cheney later said, "I personally do not believe the Boland Amendment applied to the president, nor to his immediate staff."

Cheney would later write an essay entitled, "Congressional Overreaching in Foreign Policy." (AEI - Books)

In a memo to President Ford, written while Cheney was a member of the Ford administration, Cheney urged the creation of a commission to investigate the CIA. Cheney wrote that doing so was "the best prospect for heading off congressional efforts to further encroach on the executive branch." (Hail to the chief - The Boston Globe)

For a remarkable exposition of Cheney's own words, more of his own opinions regarding Presidential power, see here: FRONTLINE: the dark side: analysis: cheney in his own words | PBS

The attitudes of Cheney and Rumsfeld contradict the intentions of the founders. In Federalist #51, James Madison wrote: "...it is not possible to give to each department an equal power of self-defense. In republican government, the legislative authority necessarily predominates." (The Federalist #51)

But according to Dick Cheney, the Constitution "does not permit Congress to pass a law usurping Presidential power." Cheney really seems to believe that the Chief Executive ought to operate outside and above the law, whenever it suits him.

This is all very understandable. Anyone can become frustrated by "restrictions," no matter how legitimate they may be. However, these blokes are supposed to be defending the Constitution, not complaining about it. There's nothing wrong with having these opinions, on their own, without illegal actions. In order to overcome these alleged problems in Government, couldn't one seek to undo the post-Watergate wrongs (i.e., if they are) legitimately, through a friendly Congress, run by one's own party?

Unfortunately, this has not been the path taken by the Bush Administration. With a friendly, idle Congress, whose leadership has been practically uncritical of Bush (until recently), the Bush Administration has instead used a line of reasoning that has sought to openly subvert the law.

Here's an example.

John C. Yoo, a legal counsel in the office of the Justice Department from 2001 to 2003, borrowed the gist (and some of the wording) of Rumsfeld's statement when he argued against Congressional anti-terrorism restructuring: "Section 612 represents the sort of legislative micromanagement of the executive branch that should be resisted on separation of powers policy grounds." (http://www.justice.gov/olc/cjsflanigan.pdf)

Here's another example.

When asked by a reporter about the controversial NSA program in January 2006, President Bush responded, "I would say that there has been a historical debate between the executive branch and the legislative branch as to who's got what power. And I don't view it as a contest with the legislative branch. Maybe they view it as a contest with the executive; I just don't. I view it -- I view the decisions I've made, particularly when it comes to national security, as necessary decisions to protect the American people. That's how -- that's the lens on which I analyze things." (Press Conference of the President)

This is telling. Bush feels whatever decisions he makes are vital, regardless of what anyone in Congress thinks. Or has done. Of course, he goes on to say, "I believe I've been hired by the people to do my job, and that's to protect the people, and that's what I'm going to do, mindful of my authorities within the Constitution, mindful of our need to make sure that we stay within the law, and mindful of the need to protect the civil liberties of the people." But I believe this contradicts what he had just said earlier.

I believe Bush contradicts himself, because Bush didn't in fact adhere to the law with the NSA program. Bush has said a lot of things in speeches over the years, and then acted otherwise, almost constantly. Bush, like Cheney and Rumsfeld, believes in an expanded power of the Executive Branch, that subverts the law, but then speaks about being mindful of staying within the law. This constitutes fraud. This is indeed troublesome, and many supporters of impeachment (Movement to impeach George W. Bush - Wikipedia, the free encyclopedia) will even mention "fraud," as a reason to impeach, but I believe it is too vague. Instead, I'd like to lay out just a couple of specific examples in which the Bush Administration has broken the law in a way that I believe is consistent with the way the framers intended disobedient leaders to be corrected by impeachment.

The Constitution says that the "President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors." However, the Constitution doesn't define what is precisely meant by "high crimes and misdemeanors." I believe that this phrase was intended to refer to any crime, be it high ("high crimes") or low ("misdemeanors"), so long as Congress believes that the crime/crimes committed, the law or laws that were broken, merit removal of a public servant from office.

__________________
"I admit it. The liberal media were never that powerful, and the whole thing was often used as an excuse by conservatives for conservative failures." - Bill Kristol

niftydrifty

It appears that the Bush administration has acted in violation of US Code, Title 18, §2339 (the Anti-Torture Statute) and §2441 (the War Crimes Act), as well as international law. Here is an excerpt from the investigative status report of the House judiciary committee (http://www.house.gov/judiciary_democ...alreport.pdf):

Our investigation has found that there is substantial evidence that
individuals within the Bush Administration have violated a number of domestic
laws and international treaty obligations concerning the mistreatment of
detainees in Iraq, including the Anti-Torture Statute, 18 U.S.C. ' 2339; the War
Crimes Act; 18 U.S.C. ' 2441; the Geneva and Hague Conventions; the Convention
Against Torture, Cruel, Inhuman, and Degrading Treatment; and the legal principle
of command responsibility.

Department of Justice
There is substantial evidence that then Attorney General Ashcroft and current
Attorney General Gonzales violated the Convention Against Torture, Cruel, Inhuman,
and Degrading Treatment (which requires that member countries enact whatever
framework is necessary to deter and punish all those who commit torture and other
human rights violations) and the Geneva and Hague Convention (which obligates all
signatory nations to investigation persons responsible for such violations). Among
other things, the Department of Justice has only brought a single criminal charge
against military contractors, military personnel, and CIA officials within its
jurisdiction under the Military Extraterritorial Jurisdiction Act for mistreatment of
detainees in Iraq.

There is also substantial evidence that then Attorney General Ashcroft and then
White House Counsel Gonzales bear responsibility for documented, unlawful removal
of detainees from Iraq in contravention of the War Crimes Act. Among other things,
these individuals appear to have requested and approved a March 19, 2004 legal
memorandum which, according to intelligence officials "was a green light" for the CIA
to improperly remove detainees from Iraq.

There is further substantial evidence that then Attorney General Ashcroft bears
responsibility for approving a legal memorandum defining torture as acts consisting of
"extreme acts" inflicting "severe pain," such as that accompanying "death or organ
failure," which such standard is inconsistent with the Anti-Torture Stature, 18 U.S.C. '
2339. Finally, there is further substantial evidence that Attorney General Gonzales
bears responsibility for adopting a legal position that the ban on cruel, inhuman, and
degrading treatment (CID) does not apply to detainees held outside of the United
States, in contravention of the Convention Against Torture, Cruel, Inhuman and
Degrading Treatment. Among other things, the former Legal Adviser to the U.S.
Department of State has concluded that the ban on CID "would apply outside the U.S."

Department of Defense and CIA
There is substantial evidence that Secretary Rumsfeld bears responsibility for
torture and other illegal conduct in Iraq in violation of the Anti-Torture Statute.
Among other things, Secretary Rumsfeld has approved a November 27, 2002
memorandum which includes the "use of scenarios designed to convince the detainee
that death or severely painful consequences for him and/or his family are imminent;"
and aided and abetted in causing these tactics to migrate to Iraq by virtue of, among
other things, transferring General Geofrey D. Miller to Iraq to "Gitmoize" the detention
operation.

There is also substantial evidence that Secretary Rumsfeld can be held
criminally liable under the command responsibility doctrine. Among other things,
Secretary Rumsfeld has been appraised of numerous incidents of torture and CID as
well as "ghosting" of detainees, yet has initiated no major action to hold those who
committed the acts responsible or effectuated policy changes designed to prevent
such misconduct from reoccurring.

There is also substantial evidence that both Secretary Rumsfeld and then CIA
Director Tenet have personally been aware of and approved the "ghosting" of at least
one, and potentially further detainees, in violation of the Geneva and Hague
Conventions. Specifically, with regard to the detaineee Hiwa Abdul Rahman Rashul,
Secretary Rumsfeld admitted that Mr. Tenet asked him "not to immediately register
the individual" (who was not registered for several additional months). There is also
substantial evidence that Director Tenet was ultimately responsible for transferring
Hiwa Abdul Rahman Rashal from Iraq in contravention of the Geneva and Hague
Conventions and the War Crimes Act.

Finally, there is evidence that the U.S. Military used an incendiary weapon in
combat known as White Phosphorus, even though the U.S. Battle Book states, "It is
against the Law of Land Warfare to employ WP against personnel targets," and which
would be in contravention of the Geneva and Hague Conventions and the War Crimes
Act.

Article 75, “Fundamental Guarantees,” of the 1977 protocol to the Geneva Conventions, states: “Persons who are in the power of a Party to the conflict and who do not benefit from more favorable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances.” It prohibits, among other things, “torture of all kinds, whether physical or mental,” and “outrages upon personal dignity, in particular humiliating and degrading treatment.”

On 9/11/01, Bush according to Richard Clarke, said if there are “any barriers in your way, they are gone.” And he also said, “I don’t care what the international lawyers say, we’re going to kick some ***.” (Economist.com)

On December 2, 2002, Rumsfeld sent a directive instructing subordinates in interrogation techniques that breached the Geneva Conventions, including “using detainees’ individual phobias (such as use of dogs) to induce stress.” (Rumsfeld OK'd Dog Scares, Strips - CBS News)

niftydrifty

The NSA Warrantless wiretapping program violates the Foreign Intelligence Surveillance Act (FISA), and is therefore illegal. The Foreign Intelligence Surveillance Act (FISA) explicitly states that the “exclusive means” for spying on U.S. citizens is by getting a warrant from the FISA court.

Furthermore, the Fourth Amendment prohibits unlawful searches and seizures of US citizens.

In January 2006, the Congressional Research Service released two legal analyses concluding that:

"...no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance... the NSA surveillance program... would appear to be inconsistent with the law."[LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT U.S. Department of Justice, January 19, 2006 ]Lawyer, Lawyers, Attorney, Attorneys, Law, Legal Information - FindLaw

In addition, the American Bar Association, in February 13, 2006, issued a statement denouncing the warrantless domestic surveillance program, accusing the President of exceeding his powers under the Constitution. Their analysis opines that the key arguments advanced by the Bush administration are not compatible with the law.[# AMERICAN BAR ASSOCIATION ADOPTED BY THE HOUSE OF DELEGATES, February 13, 2006 http://www.abanet.org/op/greco/memos...e302-0206.pdf]

The Bush Administration also broke the law when court orders were not sought under the NSA "wiretapping" program. Here's an excerpt from an article that appeared soon after the existence of the program was first reported:

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches." (Bush Lets U.S. Spy on Callers Without Courts - New York Times)

The Justice Department has defended its employer faithfully and furiously, with the same ideological disregard for the Constitution as its master. While answering questions in 2006 about the NSA program, Attorney General Alberto Gonzales said this: "...Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President's ability to perform his constitutional duty." (http://rawprint.com/pdfs/HJCrawstory1.pdf)

The most astounding thing about the whole NSA wiretapping affair is that Bush admitted breaking the law. In 2005, he said this: "I've reauthorized this program more than 30 times since the September the 11th attacks, and I intend to do so for so long as our nation is -- for so long as the nation faces the continuing threat of an enemy that wants to kill American citizens." (Press Conference of the President)

This prompted John Dean, former White House Counsel between 1970 and 1973, to say that Bush is “the first President to admit to an impeachable offense.”

But crazily enough, over a year earlier, when speaking about government surveillance, Bush even knowingly lied about the program. He said, "There are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution." (President Bush: Information Sharing, Patriot Act Vital to Homeland Security)

On December 17, 2005, Bush gave a radio address where he first admitted to authorizing the NSA program. He said, "To fight the war on terror, I am using authority vested in me by Congress, including the Joint Authorization for Use of Military Force, which passed overwhelmingly in the first week after September the 11th." (President's Radio Address) The Administration's argument has been that Congressional approval of "the War on Terror" gave the President broader power to fight terrorism anyway that he choose. But break the law Bush did, and if Congress so chose to do so, they could enforce the law. After all, Congress did not approve the specifics of the NSA program. Therefore, this is an impeachable offense.

++++++

So, is Bush impeachable? It seems that his administration has broken the law, therefore he is. Whether or not the House in this next session of Congress can, or can't, or decides to, or decides not to, is irrelevant.

I look forward to reading TOT's argument in favor of unchecked Executive power, disdain for the law, a government that resembles a monarchy, and an arrogant unconstitutional extremism: an Imperial Presidency.

Trajan Octavian Titus

My opponent likes to speak of "Checks and Balances," well can someone please point me in the direction of where to find those words in the Constitution? Because for the life of me I can't find them, however, what I do find and what is made perfectly clear by the wording of the Constitution is that the original intent therin was for there to be a separation of powers wherby the government would be split into three separate but equal branches. That being the case any legislation passed by Congress which infringes upon the President's inherent authority as Commander in Chief is itself illegal and unconstitutional. So even if we take my opponents position for granted that Bush violated the FISA Act, FISA itself is unconstitutional, because of the vesting clause found in Article II which states and I quote: ""The executive Power shall be vested in a President of the United States of America." Furthermore; the FISA court itself ruled In re sealed case 02-001 in 2002 that: " "FISA could not encroach on the president's constitutional power."

Furthermore; my opponent clearly does not understand the FISA Act, because the FISA act only applies when the original target is within the United States, in the cases of the terrorist surveillance program the original targets are found outside the United States and it is only the secondary targets which are within the United States and then their phone calls may also be monitored and while they may place calls to others within the United States, the fact remains that the original targets were not within the United States and thus FISA is inapplicable.

Now for the sake of argument we say that Bush did infact violate the FISA Act through the terrorist surveillance program, FISA can be overidden through future statute and that statute clearly came in the form of the AUMF of September 2001 in which a joint session of Congress gave the President the authority to (and I quote) "That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."

Now my opponent, also, makes the argument that the terrorist survellience program violates the 4th amendment because the 4th amendment "prohibits unlawful searches and seizures of US citizens," well I would urge my opponent to actually read the Constitution because what the fourth amendment actually says is that it prohibits "unreasonable searches and seizures," now who among you can possibly argue that tapping the phones of people within the United States who are in contact with terrorist agents overseas is unreasonable?

As to my opponents accusations of torture he has mislead you good people into thinking that the report he cited was from the non-partisan House Judiciary Committee, that is a complete and dubious lie! That report which he cited was a partisan and highly biased report issued by the Democratic Staff of the Judiciary Committee, the tone of which is so filled with with vitriol Bush hatred that I do not find it incumbant upon myself to respond to such a biased, misleading, and unsubstantiated report that one would expect to find in the editorial section of Al-Jazeera not in a governmental report. But hay let's once again take my opponents position for granted, I'll remind him and everyone else that the Geneva Convention does not apply to terrorists as is clearly demonstrated by Article 4 of the 4th Geneva Convention which states:


A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

Trajan Octavian Titus

Furthermore; as to Article 75 of the 1977 addittional protocol of the Geneva Conventions while the United States has signed it, we have not ratified it meaning we are not bound by it meaning my opponents posting of it is just another attempt to mislead through ommission.

niftydrifty

Dear readers, please note how the previous rebuttal posts to my original argument contain no examples and no links. Instead, there are merely incomplete, impartial, Constitutional quotes, and appeals to our opinions. This is telling. For example, you won’t find mention of Probable Cause in my debate opponent’s remarks. This is because to do so, would be to refute himself – this is misleading through omission, indeed.

It is true that I do like to speak of checks and balances while talking about the Constitution. Why do I like to speak about checks and balances? It is because they are there. To say that there are no checks and balances in the Constitution, because those words do not occur there, would be like saying that a novel doesn’t contain a plot because the word “plot” doesn’t occur in the novel. It would be like saying that a sentence doesn’t have nouns or a verb because those words aren’t literally in the sentence.

The founders didn’t use the words “checks and balances” in the Constitution. Instead, they explained them. It was elsewhere that they used the term when speaking about the Constitution, which is exactly what I have done.

The phrase “checks and balances” was more than likely first used in the United States by John Adams in 1787, in “Defense of the Constitutions of the United States,” which was published just before the Continental Congress first convened. Adams wrote, “We shall learn to prize the checks and balances of a free government, and even those of the modern aristocracies, if we recollect the miseries of Greece which arose from their ignorance of them.” (John Adams: Defence of the Constitutions, 1787)

The title of Federalist Number 51 was “The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments.” (The Federalist #51)

“The Federalist Papers remain today as an excellent reference for anyone who wants to understand the U.S. Constitution.” (Federalist Papers) I recommend that my debate opponent familiarizes himself with them, as well as the Constitution itself.

To say that the three branches of Government should or do operate separately is simply wrong. Separation of Powers exists in the Constitution, but so do Checks and Balances. What is a veto? What about when Congress overrides a veto? What happens when a court strikes down a law? Or when Congress investigates the Executive? Or when the President pardons a criminal? The President may not break the law. The President is not above the law. The most important Check or Balance vis a vis this discussion is impeachment! So, just what is impeachment? Is the Constitution un-Constitutional? Of course not, though my debate opponent would have you believe it. These are checks and balances. And they are indeed explained in the Constitution.

"The executive Power shall be vested in a President of the United States of America," however, Congress does indeed oversee that power.

“The American constitutional system includes a notion known as the Separation of Powers. In this system, several branches of government are created and power is shared between them. At the same time, the powers of one branch can be challenged by another branch. This is what the system of checks and balances is all about.” (Constitutional Topic: Checks and Balances - The U.S. Constitution Online - USConstitution.net)

End, Civics lesson. Now back to the debate.

This is an opinion, and a rather uninformed one, at that. If the president's inherent constitutional powers give him the authority to order wiretaps of U.S. citizens even when Congress has passed laws forbidding it, I ask to see any case law supporting this view. As far as I know, there aren’t any.

Inherent authority should not be confused with exclusive authority. The president's exclusive powers are only a portion of his inherent powers. As long as Congress does not infringe on the president's exclusive powers, the will of Congress, as expressed through legislation, overrides any inherent executive authority.

The Executive Power vested in the President is to execute the laws. Not to break them.

To say that FISA is unconstitutional is hyperbole, with no legal backing. Please note that when the DOJ wrote justification for the NSA program, no mention was made of FISA being unconstitutional. (DoJ Letter on NSA Eavesdropping) This is because the DOJ knows better.

FISA unconstitutionality is Pat Roberts’ mantra. (http://www.fas.org/irp/congress/2006...erts020306.pdf) Dear readers, please note that I will not make an issue of Roberts’ temperament, or his partisanship. And although my debate opponent likes to paint those in Congress whom he disagrees with as “partisans” not worth his time (more about this later), I will do so, and with facts.

FISA has been law for more than twenty-five years, and has never been called unconstitutional, until now. And even if it were unconstitutional, the President doesn’t have the power to declare a duly enacted statute unconstitutional. This is the role of the Judiciary. The executive branch is supposed to enforce the law, not break it, or strike it down. Even if the president were to have judicial power, President Bush wisely has never exercised it. To do so would be, ahem, unconstitutional.

More misleading through omission. Those nine words are an excerpt. Here is what the Court of Review actually ruled in that case: "Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith*, that FISA as amended is constitutional because the surveillances it authorizes are reasonable." (Foreign Intelligence Surveillance Court of Review Opinion)

*United States v. United States District Court (Keith), 407 U.S. 297, 322 (1972) (FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code)

According to FISA, Congress has authority to regulate electronic surveillance within the United States. Period. Some targets were in the United States. Those targets require a court order. Therefore, the law was broken. I’d like to see the wording in FISA that says that persons being monitored within the United States do not require a court order.

Ok, good, because he did...

This is the gist of the Administration’s argument. However, it is clear that Congress never intended to give this authority through the AUMF. Furthermore, the wording of the AUMF is “necessary and appropriate,” not “expedient and illegal.”

Tom Daschle, who negotiated the post-9/11 Authorization for Use of Military Force with the White House, says categorically that Congress never intended to give the president the power to perform domestic wiretapping:

“On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to "deter and pre-empt any future acts of terrorism or aggression against the United States." Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize "all necessary and appropriate force against those nations, organizations or persons [the president] determines planned, authorized, committed or aided" the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.”

What's more, Daschle says that even after that language was agreed on, the White House tried to add the following phrase:

“(a) IN GENERAL — That the President is authorized to use all necessary and appropriate force in the United States and against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001....”

Daschle says:

“This last-minute change would have given the president broad authority to exercise expansive powers not just overseas — where we all understood he wanted authority to act — but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused.”

If the intent of Congress means anything at all, this is pretty good evidence that it didn't intend for the AUMF to give the president power to override FISA within the United States. (Power We Didn't Grant)

niftydrifty

The Supreme Court of the United States will. The SCOTUS has consistently ruled that searches without a warrant are unreasonable, unconstitutional, and therefore, unlawful. I challenge anyone to find a single relevant example that suggests otherwise. In this sense, in this very real sense, I interchangeably used the words “unreasonable,” and “unlawful.” I wasn’t quoting the Constitution, I was talking about it, in the context of this debate. According to the SCOTUS unlawful searches are unreasonable. Please note that my debate opponent omits the portion of the Fourth Amendment that speaks of “Probable Cause.” According to the Fourth Amendment, the government must demonstrate probable cause, or actual evidence supporting the conclusion that the target of a search is involved in criminal activity, before a judge may issue a warrant. Without Probable Cause, the search is unlawful. Therefore, the Constitution actually does prohibit unlawful searches and seizures, which is exactly what I said. I was attempting to say something which is true, and I believe that I did. My debate opponent is attempting to mislead through omission.

Please note that there is no argument here. Instead my debate opponent makes a great deal about the origin of the report, the tone of the report, the people that produced the report, etc. Was the report true or false? My debate opponent would rather not say. To try to do so would be devastating to his cause.

More “misleading through omission.” If my debate opponent were to truly have taken my position for granted he would have addressed all of the charges in my passage, not just the Geneva Conventions. There were US laws in the passage. Much has been written about the Bush Administration’s violations of US Code, Title 18, §2339 (the Anti-Torture Statute) and §2441 (the War Crimes Act). I mentioned these laws. I quoted part of the case against the President written by a member of Congress. But my debate opponent does “not find it incumbant [sic] upon [himself] to respond.” This, again, is telling.

From Hamdan v. Rumsfeld, 548 U. S. (2006):

Inextricably intertwined with the question of regular constitution is the evaluation of the procedures governing the tribunal and whether they afford "all the judicial guarantees which are recognized as indispensable by civilized peoples." 6 U. S. T., at 3320 (Art. 3, ¶1(d)). Like the phrase "regularly constituted court," this phrase is not defined in the text of the Geneva Conventions. But it must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law. Many of these are described in Article 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof. Indeed, it appears that the Government "regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled." Taft, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int'l L. 319, 322 (2003). Among the rights set forth in Article 75 is the "right to be tried in [one's] presence." Protocol I, Art. 75(4)(e).

(Hamdan v. Rumsfeld, 548 U. S.(2006) - U.S. Supreme Court -)

I look forward to reading my debate opponent's final word on this matter, about how the Executive Branch is above the law, and is therefore, somehow, unimpeachable.

Trajan Octavian Titus

Probable cause? So you don't believe that speaking to known terrorist agents overseas meets the standard of probable cause?

Begin civics lesson, the checks and balances you speak of are guaranteed by the seperations of powers, and you are the one who wishes to violate the checks and balances by granting the legislative branch the right to infringe upon the Presidents executive authority as commander and chief.

What U.S. citizens have had their phones tapped without a warrant? Do you have any proof that this has even occurred? Furthermore; the President has used wiretaps without warrants during wartime since Lincoln the authority to do so is found in his executive authority as commander in chief and when FISA comes into conflict with those exclusive powers of the President it is FISA which should be overidden not the Constitution! According to my opponent the Constitution should be allowed to be violated by legislative decree.

Yes but the the executive holds exclusive authority as Commander and Chief, we are at war, the Congress has granted him the war powers through the AUMF to combat terrorism in compliance with the 1973 war powers resolution, and FISA clearly infringes upon his exclusive authority to effectively exercise those war powers.

During times of war FISA clearly infringes upon the Presidents exclusive authority as CINC


Thanks for making my case for me, you addition to my original statement is much appreciated because it does nothing but further bolster my case that the FISA court itself has already ruled that the NSA program is reasonable, in accordance with FISA, and Constitutional, thanks again. Here's another exerpt from the In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002):

Game set and match, even the FISA court has ruled that FISA can not infringe upon the Presidents Constitutional power which it clearly does during a time of war.

(1) “Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is