|
Banned
|
Quote:
|
Originally Posted by ratbastid
host: is there anything you're in favor of? I used to feel a real kinship with your posts, but lately it's nothing but a bitchfest.
Obama ADMITS he's not crazy about the bill getting passed, that it's a compromise, that it's a lot better than things have been, and that he's not through working to get rid of the troubling aspects of it. I guess taking people at their word isn't something you have the luxury of when you're on a mission like yours, eh host?
|
Obama didn't even wait until he was elected, to sign on to negotiating away some of our constitutionally guaranteed protections, and even an elected US president does not have the right or the power to do that, because it is never his to negotiate away.....they are our rights...part of the bill of rights of "the people".
"Take his word", when it comes to trusting him with our rights? Are you serious, have you bought in, "that deep"?
Quote:
http://www.salon.com/opinion/greenwa...ama/index.html
UPDATE: In comments, Hume's Ghost wrote:
What really rubbed me the wrong way was how Obama in his statement says essentially trust me with these powers, I'll use them responsibly.
Nope.
"There is danger from all men. The only maxim of a free government ought to be to trust no man living with power to endanger the public liberty." - John Adams [1772].
In 1799, Thomas Jefferson echoed that: "Free government is founded in jealousy, not confidence . . . . Let no more be heard of confidence in men, but bind him down from mischief by the chains of the Constitutions." Between (a) relying on the limitations imposed by the Constitution or (b) placing faith in the promises of a political leader not to abuse his unchecked power, it isn't really a difficult choice -- at least it ought not to be, no matter who the political leader in question happens to be.
|
A sign of arrogance from...Obama?
Quote:
http://politicalticker.blogs.cnn.com...al-seal-morph/
CHICAGO, Illinois (CNN) – Presumptive Democratic nominee Barack Obama sat down in Chicago Friday morning to discuss the economy with visiting Democratic governors, but all eyes were on the Illinois senator’s podium bearing, what might be described as, a quasi-presidential seal – a new Obama campaign logo.
|
I am not too "bitchyr", ratbastid to be in favor of the consistent, politically risky, principled stances of this senator. He has never failed to show respect for and defense of my rights, and of yours, over all other considerations, especially over fears for our safety. Read Obama's statement again. Does it put defense of our rights above reaction to fear for our safety?
Quote:
http://feingold.senate.gov/~feingold.../20080619f.htm
Statement of U.S. Senator Russ Feingold
On the FISA Deal
June 19, 2008
“The proposed FISA deal is not a compromise; it is a capitulation. The House and Senate should not be taking up this bill, which effectively guarantees immunity for telecom companies alleged to have participated in the President’s illegal program, and which fails to protect the privacy of law-abiding Americans at home. Allowing courts to review the question of immunity is meaningless when the same legislation essentially requires the court to grant immunity. And under this bill, the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power. Instead of cutting bad deals on both FISA and funding for the war in Iraq, Democrats should be standing up to the flawed and dangerous policies of this administration.”
Senator Russ Feingold (D-WI) is a member of the Senate Judiciary and Intelligence Committees.
|
Since I am resigned to the idea that I have to support and vote for Obama because, as flawed and untrustworthy as he has been showing himself to be, he still offers the most likely hope we have of electing someone to the presidency who will not appoint monsters to the supreme court, it is immensely important to me that Obama would show an inclination to listen to the advice of Sen. Russ Feingold and to follow his example of a principled senator.
Quote:
http://www.washingtonpost.com/wp-dyn...031200877.html
Feingold Seeks Senate Censure of Bush
Associated Press
Monday, March 13, 2006; Page A03
A liberal Democrat and potential White House contender is proposing that the Senate censure President Bush for authorizing domestic eavesdropping, saying the White House misled Americans about its legality.
"The president has broken the law, and, in some way, he must be held accountable," Sen. Russell Feingold (D-Wis.) said....
|
While I think it is foolish for the democrats to legislate away the only possible means and chance for the people to learn just how invasive and illegal the Bush era electronic surveillance programs were, by passing this now "in the bag", telecomm amnesty legislation, and because it is another in a series of shifts to corporatism as major political party policy and agenda, over populism, it is no greater part of my objection to the bill than the changes to the FISA law, described below are. It doesn't help that the changes are harder to describe and understand than the telecomm amnesty part is:
Quote:
http://balkin.blogspot.com/2008/06/g...l-part-ii.html
Sunday, June 22, 2008
A Guide to the New FISA Bill, Part II
Guest Blogger
David Kris
Yesterday, (Link to Part I) in discussing H.R. 6304, the FISA modernization bill passed by the House on Thursday, I identified the key elements of current FISA, and described what I see as the main legal and operational arguments for and against modernizing the statute. Today, I’d like to describe the Bush Administration’s actual efforts to “modernize” electronic surveillance. There have been, essentially, three Administration approaches to modernizing electronic surveillance – one directed at each branch of the federal government. As it turns out, the first two approaches seem to have failed, but the third (embodied in H.R. 6304) appears to be on the verge of success.
a. Executive Branch. The Bush Administration’s first approach to modernization, illustrated by the TSP, was simply to ignore FISA. That method, relying on unilateral action by the executive branch, prevailed without public knowledge or challenge for approximately four years, until the famous December 2005 story by the New York Times. Much has been written about this period, on Balkinzation and elsewhere.
b. Judicial Branch. A little more than a year later, the government appeared to find a judicial solution to the problem of FISA modernization, advancing a new interpretation of the statute that at least one judge accepted. In January 2007, the FISA Court “issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al Qaeda or an associated terrorist organization.” As a result of these orders, the Department of Justice (DOJ) announced, “any electronic surveillance that was occurring” under the TSP “will now be conducted subject to the approval” of the FISA Court. Although DOJ so far has refused to disclose the legal theory underlying these court orders, it is worth considering whether and how they could have both complied with FISA and, as DOJ asserted, allowed the necessary “speed and agility” of warrantless surveillance. The following paragraphs set forth an educated guess about the January 2007 FISA Court orders, drawn from a much longer discussion in Chapter 15 of my book .
As noted in yesterday’s post, FISA has three essential substantive requirements: first, a target that is a foreign power or an agent of a foreign power; second, a facility being used by that target; and third, minimization. To satisfy these requirements without sacrificing speed and agility, it is necessary to identify the broadest possible target and facility, which will yield the broadest possible authorization order, which will require the fewest possible court orders for the most surveillance.
Identifying the broadest possible target is relatively straightforward under FISA – foreign powers (such as al Qaeda) are far broader than individual agents of a foreign power (such as Osama Bin Laden). This is entirely legitimate, and conventional, as long as the government is genuinely interested in getting information about al Qaeda, rather than any particular member of al Qaeda. If the government focuses its attention too much on any single terrorist, then that terrorist becomes the target. But if the government uses a wide-angle lens, focused on the group as a whole, it is comfortably within the requirements of FISA.
The broadest possible facility is harder to identify. A “facility” in FISA is the electronic analogue for location or place in an ordinary search – a concept with roots in the Fourth Amendment’s Particularity Clause. In a conventional criminal case, for example, the police obtain a warrant to search for the murder weapon in the suspect’s apartment. The warrant is not issued for the suspect’s entire apartment building, let alone his entire street or neighborhood, because that would be insufficiently particular. But nor is the warrant limited, for example, to the top drawer of the suspect’s desk – that is more particular than the Fourth Amendment requires. The location specified in a search warrant must be “reasonably” particular, and so too a FISA facility must be reasonably particular. For example, as noted in yesterday’s post, the traditional FISA facilities are 10-digit telephone numbers or name@domain e-mail addresses.
As far as I can determine, the government seems to have persuaded the FISA Court in January 2007 that the international gateway switches, which essentially are the junctions between the U.S. and the rest of the world’s telecommunications grids, are reasonably particular FISA “facilities,” and that al Qaeda is using them. If that is right, it means that a handful of orders gave the government access to all, or almost all, of the international telecommunications traffic entering or leaving the United States. That is very speedy and agile.
The problem, of course, is that while al Qaeda is using those switches, so is everyone else. Even under the most extreme estimates, al Qaeda cannot account for more than a tiny percentage of calls transiting the switches.
It is possible that the government and the FISA Court saw this problem, and dealt with it through minimization. What they may have decided is that while the government has authority to conduct surveillance of al Qaeda on the switches, it cannot actually have someone monitor – listen to or record – any individual call without probable cause (or something like probable cause) that at least one party to the call is a terrorist (or something like a terrorist). This minimization standard may resemble the normal probable-cause determination required by FISA for agents of a foreign power, except that it is made by the executive branch rather than by the FISA Court.
To understand the function of such a FISA order, consider an (admittedly flawed) analogy to the world of ordinary searches. Imagine that the FBI obtains a warrant to search for drugs anywhere in New York City. Standing alone, this seems too broad – a clear Particularity Clause problem. But now imagine that the warrant provides expressly that while the FBI has nominal authority to search all buildings in New York, it may not enter any particular building unless a Supervisory Special Agent or higher-ranking official finds probable cause that drugs are indeed located within that building. Rightly or wrongly, this is the basic idea behind the January 2007 orders as described above. Again, the clever aspect is that those orders moved the bedrock probable-cause requirement of FISA from the front end of the statute, where a judge decides it, to the back end, where the executive branch applies it as part of minimization, subject only to after-the-fact review by the court. If this is indeed what the FISA Court decided in January 2007, it is easy to understand why the government announced the result publicly, as it seems to solve many of the problems posed by the TSP being conducted in violation of FISA.
It appears, however, that in April 2007, another FISA Court judge rejected the government’s interpretation at least in part, imposing limits and conditions that the executive branch apparently could not tolerate. As the DNI explained to Congress in September 2007, “we were devoting substantial expert resources towards preparing applications that needed FISA Court approval. This was an intolerable situation, as substantive experts, particularly IC subject matter and language experts, were diverted from the job of analyzing collection results and finding new leads, to writing justifications that would demonstrate their targeting selections would satisfy the statute.”
c. Legislative Branch. The government’s setback in the FISA Court led to a third approach, involving the legislative branch, that appears to have culminated in the bill passed by the House of Representatives on Thursday. I’m still working my way through the bill, but here is my initial take on its essential provisions, with new FISA Title VII section numbers noted in parentheses so any interested readers can check my work and correct it if I’ve messed up.
The new bill allows the government, “[n]otwithstanding any other provision of law,” to engage in the “targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information” (702(a)). There is no probable-cause requirement; the only thing that matters is (the government’s reasonable belief about) the target’s location. The acquisition must be to obtain foreign intelligence information, which includes information necessary to protect against the full range of foreign threats to national security, including both international terrorism and espionage, and information with respect to a foreign power that is necessary to the national defense or foreign affairs. The acquisition is not limited to any particular facility or place (702(g)(4)), which means that the government can use it to direct surveillance (or other acquisition methods) at various facilities without obtaining a separate authorization for each one.
The acquisition authority granted by the statute is subject to several essential requirements and limitations:
* First, the acquisition “may be conducted only in accordance with” what are referred to in the bill as “targeting procedures” (702(c)(1)(A)) which must be “reasonably designed” to “ensure that any acquisition … is limited to targeting persons reasonably believed to be located outside the United States,” and to “prevent the intentional acquisition” of communications “known, at the time of the acquisition,” to be purely domestic (702(d)(1)) – these communications remain subject to surveillance under traditional FISA (702(b)(4)).
* Second, the acquisition “may be conducted only in accordance with” some version of traditional “minimization procedures” (702(c)(1)(A)), which must be “consistent with” FISA’s definition of that term for electronic surveillance or physical searches (702(e)).
* Third, a senior Justice Department official and the Director of National Intelligence must certify in advance (or if necessary, a week after acquisition begins (702(g)(1)), that the targeting and minimization procedures satisfy the statutory requirements, that a “significant purpose” of the acquisition is to obtain foreign intelligence information, and that the acquisition involves the assistance of an electronic communication service provider (702(g)(2)).
* Fourth, where the targeted person is a United States person – e.g., a U.S. citizen or green card holder – more restrictive measures apply depending primarily on whether the acquisition occurs inside or outside the United States (703 and 704).
Under the bill, the FISA Court reviews the targeting and minimization procedures to ensure that they meet the statutory requirements and the Fourth Amendment (702(i)), and orders modifications if necessary; the court reviews the certification only as a matter of form, to ensure that it “contains all the required elements” (702(i)(3)(A)-(B)). The court’s order is issued to the government only – there is no provision in the bills for a secondary order. Instead, the government itself issues a “directive” to electronic communication service providers requiring their assistance (702(h)). Providers may challenge such directives in the FISA Court (702(h)(4)), and the government may seek FISA Court orders compelling compliance from a recalcitrant provider (702(h)(5)). Thereafter, providers may be punished via contempt of court for noncompliance (702(h)(4)(G) and (h)(5)(D)). There are reporting and oversight procedures, including review by Inspectors General of the government’s compliance with the targeting and minimization procedures, and the number of targets originally believed to be abroad but later determined to have been located in the United States (702(l)), and there is a reiteration of FISA’s 1978 “exclusivity provision” in Section 102 of the bill.
It is interesting to compare the pending legislation to the TSP as it may have been implemented just prior to, and just after, the January 2007 FISA Court orders. There appear to be two main differences. First, the pending legislation applies only to targets located abroad, while the January 2007 orders may have allowed surveillance of targets in the U.S. (as long as they were making international calls). Second, more importantly, the pending legislation focuses only on the target’s location (or the government’s reasonable belief about his location) not his status or conduct as a terrorist or agent of a foreign power. In other words, there is no requirement that anyone – the FISA Court or the NSA – find probable cause that the target is a terrorist or a spy before (or after) commencing surveillance. This may well be a reaction, or perhaps an over-reaction, to the FISA Court’s April 2007 order, which appears to have frustrated the government by requiring more, or more frequent, reporting about the status of certain surveillance targets. But, as discussed above, the Administration’s request for this aspect of the bill seems to have provoked a countervailing limitation from Congress, in that the pending legislation extends some version of FISA to surveillance conducted abroad of a U.S. person who is located abroad; today, such surveillance is conducted unilaterally by the executive branch, without statutory regulation or judicial review and approval, albeit with a requirement that the Attorney General find probable cause that the U.S. person is an agent of a foreign power. (It is also interesting to compare the pending legislation to the current, traditional version of FISA, but in an abundance of caution I plan to seek prepublication review for that comparison, and therefore cannot provide it here.)
Looking ahead, I believe the pending legislation probably represents only an interim solution to the problem of FISA modernization. First, it is extremely complicated. As I read the bill, it establishes at least five different categories of full-content acquisition: (1) traditional electronic surveillance, (2) traditional physical searches, (3) surveillance or searches targeting non-U.S. persons reasonably believed to be abroad, (4) surveillance or searches targeting U.S. persons reasonably believed to be abroad when the acquisition occurs in the United States, and (5) surveillance or searches targeting U.S. persons reasonably believed to be abroad when the acquisition occurs outside the United States. FISA has always been an arcane and difficult statute, but the intricacy of the pending legislation risks confusing the government officials who must apply it, often under substantial time pressure. This can lead to errors of both major types – improper acquisition of private communications (or other information) that undermines liberty and privacy, and improper abstention from acquisition that undermines security.
In addition, the pending legislation continues to rely, at least to some degree, on the location of the surveillance target. For now, that may be the best we can do. For the long run, however, we may need more radical change. If the government genuinely cannot determine a person’s location, it makes no sense to use geography as a trigger for FISA’s warrant requirements. In those circumstances, a geographical approach will always be too broad or too narrow – treating all communicating parties, or none, as if they were in the United States.
There is more to say here, and some of it I (and others) have said elsewhere, but for here and now I have probably already said too much. Thanks.
|
IMO, this issue of geographical location, the premise for locating GITMO, and for "rendering" "parties of interest" of US Intel agencies to "rights free" locations, comes down to the example of the recent Supreme Court habeas ruling.... the majority opinion dealt at length with the problem of applicability of US consitutional rights. The authors of the constitutions and congress, formerly had a preference for extending these rights, not confining them, and. as the language in the opinion indicates, and the ruse of Gitmo demonstrates, the Bush administration, congress, and the minority court opinion has been all about narrowing the geography....the physical locations where these rights apply...these protections of the individual from US government "taking"....taking of liberty, and by extension, of "the right to be secure in our persons, houses, papers, and effects".
It is ironic that an administration that claimed it wanted to "spread democracy", especially into "the middle east", cannot recognize that a vehement policy of determining personal rights status of "a free people", merely by where the US citizen or green card holder happens to be standing, inside the US, or somewhere else....rights in force sometimes, removed other times, contradicts the worth of the rights, by the example. (I was concerned to read that the "bill of rights" is relegated to a lesser status than the right of habeas, as a consequences of this mention....):
Quote:
http://www.supremecourtus.gov/opinio...df/06-1195.pdf
Page 3
2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension
Clause’s protections because they have been designated as enemy
combatants or because of their presence at Guantanamo. Pp. 8–
41.
(a)
A brief account of the writ’s history and origins shows thatprotection for the habeas privilege was one of the few safeguards ofliberty specified in a Constitution that, at the outset, had no Bill ofRights; in the system the Framers conceived, the writ has a centrality
that must inform proper interpretation of the Suspension Clause. That the Framers considered the writ a vital instrument for the protection
of individual liberty is evident from the care taken in the Suspension
Clause to specify the limited grounds for its suspension: Thewrit may be suspended only when public safety requires it in times ofrebellion or invasion. The Clause is designed to protect against cyclical
abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s
essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance.” Hamdi, supra, at 536. Separation-of-powers principles, and the history that influenced their design, inform the Clause’s reach and purpose. Pp. 8–15.
(b)
A diligent search of founding-era precedents and legal commentaries
reveals no certain conclusions. None of the cases the parties
cite reveal whether a common-law court would have granted, orrefused to hear for lack of jurisdiction, a habeas petition by a prisonerdeemed an enemy combatant, under a standard like the Defense Department’s
in these cases, and when held in a territory, like Guantanamo,
over which the Government has total military and civil control.
The evidence as to the writ’s geographic scope at common law is informative, but, again, not dispositive. Petitioners argue that thesite of their detention is analogous to two territories outside Englandto which the common-law writ ran, the exempt jurisdictions and India,
but critical differences between these places and Guantanamorender these claims unpersuasive. The Government argues thatGuantanamo is more closely analogous to Scotland and Hanover, where the writ did not run, but it is unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained
from doing so for prudential reasons. The parties’ arguments that the very lack of a precedent on point supports their respective
positions are premised upon the doubtful assumptions that the historical
record is complete and that the common law, if properly understood,
yields a definite answer to the questions before the Court.Pp. 15–22.
(c)
The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42 . click to show
(i)
The Court does not question the Government’s position thatCuba maintains sovereignty, in the legal and technical sense, over Guantanamo, but it does not accept the Government’s premise that de jure sovereignty is the touchstone of habeas jurisdiction. Common-
law habeas’ history provides scant support for this proposition,and it is inconsistent with the Court’s precedents and contrary tofundamental separation-of-powers principles. Pp. 22–25.
(ii)
Discussions of the Constitution’s extraterritorial application
in cases involving provisions other than the Suspension Clauseundermine the Government’s argument. Fundamental questions regarding
the Constitution’s geographic scope first arose when the Nation
acquired Hawaii and the noncontiguous Territories ceded bySpain after the Spanish-American War, and Congress discontinued its prior practice of extending constitutional rights to territories by statute. In the so-called Insular Cases, the Court held that the Constitution
had independent force in the territories that was not contingent
upon acts of legislative grace. See, e.g., Dorr v. United States, 195 U. S. 138. Yet because of the difficulties and disruption inherentin transforming the former Spanish colonies’ civil-law system into an Anglo-American system, the Court adopted the doctrine of territorialincorporation, under which the Constitution applies in full in incorporated
Territories surely destined for statehood but only in part inunincorporated Territories. See, e.g., id., at 143. Practical considerations
likewise influenced the Court’s analysis in Reid v. Covert, 354
U.
S. 1, where, in applying the jury provisions of the Fifth and Sixth Amendments to American civilians being tried by the U. S. militaryabroad, both the plurality and the concurrences noted the relevance of practical considerations, related not to the petitioners’ citizenship,but to the place of their confinement and trial. Finally, in holdingthat habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who were detained in a German prison during
the Allied Powers’ post-World War II occupation, the Court, in Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties
of ordering the production of the prisoners, id., at 779. The Government’s
reading of Eisentrager as adopting a formalistic test for determining
the Suspension Clause’s reach is rejected because: (1) the
discussion of practical considerations in that case was integral to apart of the Court’s opinion that came before it announced its holding, see id., at 781; (2) it mentioned the concept of territorial sovereigntyonly twice in its opinion, in contrast to its significant discussion ofpractical barriers to the running of the writ; and (3) if the Government’s
reading were correct, the opinion would have marked not only a change in, but a complete repudiation of, the Insular Cases’ (andlater Reid’s) functional approach. A constricted reading of Eisentrager
overlooks what the Court sees as a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective
factors and practical concerns, not formalism. Pp. 25–34.
(iii) The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by Guantanamo’s
political history. Although the United States has maintained
complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect
there, at least as to noncitizens, because the United States disclaimed
formal sovereignty in its 1903 lease with Cuba. The Nation’s basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of,and govern territory, not the power to decide when and where its terms apply. To hold that the political branches may switch the Constitution
on or off at will would lead to a regime in which they, notthis Court, say “what the law is.” Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension
Clause question here, for the habeas writ is itself an indispensable
mechanism for monitoring the separation of powers. Pp. 34–36.
(iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning
in its other extraterritoriality opinions, at least three factors are relevant in determining the Suspension Clause’s reach: (1) thedetainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical
obstacles inherent in resolving the prisoner’s entitlement to thewrit. Application of this framework reveals, first, that petitioners’status is in dispute: They are not American citizens, but deny theyare enemy combatants; and although they have been afforded someprocess in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and theGuantanamo Naval Station in 2008, given the Government’s absoluteand indefinite control over the naval station. Third, although the
Court is sensitive to the financial and administrative costs of holdingthe Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government presents no credible arguments that the military mission at Guantanamo
would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany. Pp. 36–
41.
(d)
Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be denied them, Congress must act in accordance
with the Suspension Clause’s requirements. Cf. Rasul, 542
U.
S., at 564. Pp. 41–42.
3. Because the DTA’s procedures for reviewing detainees’ statusare not an adequate and effective substitute for the habeas writ,MCA §7 operates as an unconstitutional suspension of the writ. Pp.42–64.
(a) Given its holding that the writ does not run to petitioners, the
D. C. Circuit found it unnecessary to consider whether there was anadequate substitute for habeas. This Court usually remands for consideration
of questions not decided below, but departure from this rule is appropriate in “exceptional” circumstances, see, e.g., Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 169, here, the grave separation-of-powers issues raised by these cases and the fact that petitioners have been denied meaningful access to a judicial forum
for years. Pp. 42–44.
(b) Historically, Congress has taken care to avoid suspensions ofthe writ. For example, the statutes at issue in the Court’s two leading
cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U. S. 205, were attempts tostreamline habeas relief, not to cut it back. Those cases provide little guidance here because, inter alia, the statutes in question gave thecourts broad remedial powers to secure the historic office of the writ, and included saving clauses to preserve habeas review as an avenueof last resort. In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature
of MCA §7’s jurisdiction-stripping language, from the DTA’s text limiting the Court of Appeals’ jurisdiction to assessing whether the CSRT complied with the “standards and procedures specified by theSecretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a saving clause in either Act....
|
My point is that neither the right of habeas, nor the fourth amendment protections in the BOR should be location dependent, when applied to US citizens and residents. THe US government should not be conducting warrantless surveillance of Americans merely because they have stepped off of US "soil", or are conversing with someone of and in a foreign jurisdiction.
Our fucking borders are still open, unguarded, and porous, and our port secuirty is a sham. The government has not even demonstrated that it is seriously committed to securing these gaping holes. Obama, in his own statement, has played the same fear card to narrow our rights, as Bush himself has done. This is extremely disturbing to me, and it should be, to all of you, too.....
Quote:
|
Originally Posted by From Obama's statement
...
"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay...
|
9/11....9/11....9/11.....9/11.... the house bill was rushed to a vote on friday, within less than a day from the time it was published, with debate limited to one hour, with no advance notice to the public that the bill was finalized and would be voted on, and with no hearings on it's provisions....and Obama had no objections to this rushed farce, only that it was "too important to delay", although the existing FISA "modernization" does not expired for at least 45 days, and the white house was so adamant in it's demand that telecomm amnesty be included in any FISA legislation, that it was willing to let last year's "modernization" provisions lapse, if it did not get amnesty in the bill sent to the president to sign.....and no reasonable explanation from Hoyer, Pelosy, or Obama as to why the compromise was even necessary, with a president and his party so untrusted and politically weakened. Sorry, Obama, I don't trust you, because your statement is full of bullshit!
Just as serious a concern is the fact that neither Hoyer, Pelosi, or Obama has provided any detailed, sincere justification for way it was necessary to negotiate what they all described as this "compromise" in the first place, with a president who has a chronic, 30 percent approval rating, of a political party exposed as exploiting the 9/11 "fear card" incessantly, bankrupting it's own reputation and trust, since the attacks in NYC and DC.
Their failure to level with us as to what motivated them to, on the surface, "cave in" to the demands of the politically crippled white house and republican congressional minority, if it wasn;t because of a political calculation to exploit the lockstep republican vote for this sellout legislation, to consolidate executive power in anticipation of a democractic sweep, in the elections just five months from now, what are we to think of them, but the worst? They are either, in rushing to do this now, cynically calculating, disingenuous, and totally disrespectful of their duty to defend our rights, not to negotiate away what are not theirs to give.....or they are what they appear on the surface to be.....incredibly weak and ineffective, not a good image for "reform" candidate Obama to wrap himself around, IMO.
Last edited by host; 06-22-2008 at 07:31 AM..
|