[RP TownTalk] Md senator helps pass Telecom immunity

[Roland Walker]

[ alan writes]
> I must respectfully disagree -- for the first several months to a year, the
> nation was in a state of emotional shock, and was responding without
> necessarily thinking carefully through consequences.  After a few years, and
> certainly by a few months after the New York Times article that revealed the
> program and its questionable legality (published December 16, 2005) they
> should have been seriously questioning their actions, and perhaps seeking to
> bring themselves in line with the law.

Dear Alan,

I'll go you one better, and lovingly disagree.

Article 2 is Article 2 is Article 2.  No matter where or when, Article
2 is still Article 2.  The President, as Commander-in-Chief, has vast
power to fight and surveil to protect our way of life.  That's why it
is so very important, so crucial, when we vote, to vote for someone we
trust with that power.  Surely you and I agree on that.

Like the power of the pardon, the Article 2 powers are plenary powers
that inhere in Executive, the two counterbalances being Congress's
prerogative to declare war and to control the budget dedicated to war.
 The judicial branch does not have any constitutional power to review
acts of war by the executive or by the military.

The FISA court is not part of the independent judicial branch, but is
created by statute, like an agency.  It cannot make any exercise of
constitutional powers illegal.  FISA provides a level of review and
process and recordkeeping with regard to the exercise of some grave
powers, which to me seems like a good thing.  But the president can
also surveil outside of FISA, because the Constitution says he can.

I think that the telecoms probably couldn't be *forced* to comply
without a statute -- a statue which could be reviewed by a court.
Though the FISA statute *does* force telecoms to comply with requests
that follow the FISA process. (See
http://www.law.cornell.edu/uscode/50/usc_sec_50_00001802----000-.html)

Anyway, those telecoms that agreed to assist in patently legal
surveillance conducted outside FISA should not be punished.  And there
are many, many reasons to avoid having classified surveillance
practices discussed in an open court.

I suppose you and I differ most on whether the telecom surveillance
directed by the executive branch is "patently legal".

I hold Article 2 on my side, and I would add the Authorization of the
Use of Military Force passed on 14 Sep 2001, which directs the
President 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

I think I can make my case best by referring again to the power of the
pardon.  Presidents can pardon *anyone*.  Bill Clinton pardoned a
top-10-most-wanted fugitive.  Don't like that?  Tough noogies -- it
was Clinton's absolute right and prerogative.  All you can do is vote
for someone you think can use that plenary power wisely.  The same
goes for the President's Article 2 powers.

As you know, Alan, I believe that the collective wisdom expressed by
the vote is wiser than me or any other single person.  I wish you to
accept my position as a respectable one, but I do not urge you to
adopt it.  You think for yourself quite nicely.

I do, however, urge you to vote, as I would urge anyone who disagrees
with me to vote.  And I urge you to keep these matters foremost when
you do, because (again, I hope you and I agree) these are among the
most important issues we face when we choose our next leader.

R

PS You are so more eloquenter than any old Senator Dodd.

>
> The broad powers of the Commander-in-Chief with regard to surveillance
> under Article 2 have indeed been tested in court.  In addition, the
> role of Commander-in-Chief prima facie includes surveillance powers,
> as under his or her command are military surveillance facilities such
> as you might find at Fort Meade.
>
> I don't believe telecoms should be punished for complying with lawful
> requests.
>
> I'll just quote Senator Dodd on this one -- he's much more eloquent than me:
>
>
>
> "In their telling, when our biggest telecom corporations helped the
> President spy without a warrant, they were doing their patriotic duty. When
> they listened to the executive branch and turned over private information,
> they were doing their patriotic duty.
>
> When one company gave the NSA a secret eavesdropping room at its own
> corporate headquarters, it was simply doing its patriotic duty. The
> President asked, the telecoms answered.
>
> Shouldn't that be an easy case to prove, Mr. President? The corporations
> only need to show a judge the authority and the assurances they were given,
> and they will be in and out of court in 5 minutes. If the telecoms are as
> defensible as the President says, why doesn't the President let them defend
> themselves? If the case is so easy to make, why doesn't he let them make it?
> Why is he standing in the way?"
>
> - Senator Dodd, on telecom amnesty, Dec. 17, 2007
> If the law is so clear, the cases will not be a significant burden on the
> telecoms (perhaps costing less than they've spent trying to influence this
> legislation).  Since we (and, according to our own Representative Hoyer)
> don't know much about what was asked for and what was provided, I don't
> think we know whether the law is clear or not.
>
>
> The remedy, should you disagree with those actions by the President,
> is political.  Vote for someone who would make different decisions.
>
> Or to ask your elected representatives to vote to have the courts perform
> their duties under the constitution, which is how this discussion started.
>
>  Alan
>
>
>
> _______________________________________________
> TownTalk mailing list
> To post to the list, send mail to TownTalk at riverdale-park.org
> TownTalk-request at riverdale-park.org is for automated subscription processing
> only
> http://riverdale-park.org/mailman/listinfo/towntalk
>
> For more information about Riverdale Park, visit
> http://www.ci.riverdale-park.md.us
>