There is no doubt.

The issue is that Bush/Cheney through Yoo have decided that whenever Little Georgie puts on his "Commander In Chief" hat he doesn't have to obey ANY law. In the interest of "national security" there is nothing that can impede Little Georgie from doing anything he decides is necessary.

Get it?

He's not above the law. He's beyond the law.

But that's just their say-so. No one else believes such inane misinterpretation of the Constitution and the law. Clearly, Little Georgie has been authorizing quite illegal operations that constitute gross abuse of governmental powers. i.e. he's committed High Crimes & Misdemeanors. Can we Impeach him now?

ITMFA

The single best part of this story is that former U.S. Attorney Senator Sheldon Whitehouse is on the case. He is extraordinary. Addington/Yoo/Bybee & Co. have met their match in this gentleman.

DOJ Reliance Continues

The issue is: What Other programs have relied on this (incorrect) assertion the statutes and Constitution do not apply. It is meaningless for DoJ/AG to argue it "no longer" relies on the Yoo memo. Sure it does. AG said explicitly that he would not enforce any laws DOJ OLC said did not apply: Geneva, FISA. What other standards have been cast to the winds with other DOJ OLC memos?

Yoo's Convoluted Logic

FISA was written, in part, to authorize lawful violations of the Constitution. Once the President claims FISA does not apply -- in either granting an exception to the warrant requirement, or in having "no role as a standard" -- then the President must comply with the Constitution.

Yoo's Construction would have us believe FISA does not apply, but he fails to explain why the President can ignore Constitutional requirements in the 4th Amendment. Youngstown shows the President's power is constrained by the Constitution, and law. Even if Yoo's assertion is correct -- that the FISA does not apply because Congress did not expressly say it applied to a specific situation -- Yoo has not addressed the Constitutional requirements.

Evenif FISA does not apply, Yoo fails to address the Constitution Violations or Constrain Other Programs

Yoo's argument has not adequately addressed the implications of his argument: Once FISA is ignored, or does not apply, or Congress did not expressly say it applied to a narrow situation -- the President is only left with the Constitution which prohibits all warrantless surveillance. Yoo's asked us to believe the law does not apply; but fails to explain why the President, as a creature of the Constitution, has any authority from the document Yoo also says does not apply.

Exception to Privilege

It appears Yoo's written this after the illegal activity started: The President, as with Geneva violations, was stuck with a legal issue, and hoped to "rely on" DOJ OLC memos to "legalize" what had already started. These memos do not appear to be deliberative/pre-decisional, but post-decisional, also not protected given the crime-fraud exception to attorney client privilege.

It's a shame that Dianne Feinstein voted in committee to pass the Senate bill that grants retroactive immunity to the telecoms who assisted the administration in spying on Americans without a FISA warrant (thus flouting the clear and plain "exclusive means" clause of the 1979 FISA law quoted above).

Because every other means of legal discovery and review of this illegal program has been closed off by the Bush Administration on standing grounds or through claims of executive privilege, the telecom lawsuits are the last, best way for the American people to finally learn what laws were broken in their name and what violations of their personal privacy occurred without their knowledge or consent. They're also the last best way to hold those lawbreakers (in both the corporate and private sector) accountable for their lawbreaking, and to disincentivize such flagrant illegalities in the future.

Unfortunately, Dianne Feinstein's pro-immunity vote in committee made the pursuit of justice and accountability infinitely harder. Again, that's a shame. And it's an even bigger shame that she cast that pro-immunity vote, to the great benefit of her largest contributors such as AT&T, in direct opposition to the overwhelming balance of her own constituent contact with regard to the bill, which, per her own staffers' admission, was almost exclusively anti-immunity.

But then, why the hell should she care what we constituents think? We're only her stupid constituents.

Patrick Meighan
Culver City, CA

Well the thig that I always point back to when talking to friends about this white house and many of their supporters is that in essence they consider themsleves conservative. I have always felt that many of the people which define themselves as conservative cared about government abuse, goverment spending and the nature of balance between government responsability tempered against personal/civc responsability. If that were the case then how under any interpretation of conservatism can you have this interpretation of a legal statute? At a bare minimum their interpretation is quite liberal or I should say creative, but definately not a conservative approach nor a conservative conclusion? Don't you guys agree? If the status quo was A and you have people asking for B, then it needs to be seen as exactly that, not A but B. A change! Therefore the white house has changed its policies so that those policies reflect what they feel represents conservatism, not that they are conservatism, but that their goals are conservative and their methods are anything but. So essentially these guys have hijacked conservatism because they felt that was the only way to get America the way that they wanted! So we get back to feeling the way most of the people who have had a problem with their methods over the last couple of years which is namely that their methods have been bad for US perception abroad, they have been bad for your average American, who makes less than 75 thousand a year or a family that makes less than a 100 thousand a year, they have been bad for our education policies in many ways by creating a top down structure which puts the burden on teachers rather who have little power in terms of teaching guidelines and even less when it comes to classroom discipline, you have ever increasing health care cost, while thousands of americans continue to be added to the list of uninsured, etc! They have failed in getting the results which they beleived they could accomplish but have been successful at changing the language and spirit of those working in Washington. Now we have a goverment in which those at the top are both responseable for much of the policy but then places the ultimate critique not on those policies but on how well those underneath the top performed them. This allows the Kings/high-goverment officials the pleasure of never being accountable for their action or the policies they support. I know I am oversimplifying but this is a large picture of how I see things moving. It is going to take the best and the brightest to create a new spirit in Washington and a new spirit around this country which better reflects how the majority messures up to the first paragraph of the preamble.

DoJ has not made the case that something other than FISA governs electronic surveillance; or that non-FISA procedures apply to this surveillance. DOJ cannot reasonably expect Congress to comply with this non-sense request:

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.From

The 2001 statement must be considered without regard to whether the statutes, policies, or programs did or did not change after the DOJ OLC statement. Today's debate is related to the illegal activity before the FISA changes. DoJ cannot ask Congress to examine one set of violations under statutes which were changed later. We still don't know what's been going on before the changes.

The "current position" is to pretend there's been compliance with standards they've ignored, but not prosecute the violations. That's not a position or policy. It's a decision to not enforce the Constitution. How that illegal activity, unlawful use of information, and surveillance relates to war crimes against POWs is a relevant discussion.

"Choosing non-FISA procedures" does not mean also ignoring the Constitution. Once the AG departs FISA, the AG cannot reasonably justify warrantless activity directed at American civilians. The exceptions do not apply. The ruse is to pretend Americans -- on accusation alone -- "Might be" disguised terrorists. ( Here Is Yoo's article on Katz highlights to waffling possition on the warrant requirements. )

"testing" is as full of pseduo-law BS as they come --

"Yoo's argument has not adequately addressed the implications of his argument: Once FISA is ignored, or does not apply, or Congress did not expressly say it applied to a narrow situation -- the President is only left with the Constitution which prohibits all warrantless surveillance. Yoo's asked us to believe the law does not apply; but fails to explain why the President, as a creature of the Constitution, has any authority from the document Yoo also says does not apply."

That was addressed in the various (bogus) assertions that Bushit, when acting as Commander-in-Chief, is exempt from ALL legal constraints INCLUDING THE CONSTITUTION, fool.

And that "covers" the illegal domestic wiretapping based upon the (equally bogus) assertion -- by the "Commander-in-Chief" -- that the "War on Terror" includes the US as a battlefield.

Problem in the latter case: Congress has not passed a Decaration of War against the US. Only the Bushit criminal enterprise has done that.

He is unconstitutionally claiming the powers of military dictator, without the uniform to give that fact away "too much".

As for your "legal" "theorizing": you haven't the least clue as to what law is and isn't, let alone how it works.

If Yoo is subpoenaed and found to be as lacking as Gonzales, will Bolt Hall continue keeping him on faculty? Is his tenure sealed in stone? I just find this utterly so disturbing. It is not as if he taught at Ken Starr U (Pepperdine) or Condy U (Stanford). That would be bad enough, but we are talking about Berkeley! If one of my kids went to school there, I would be raising hell!

The 4th amendment is very clear and unequivocal. What all of these interpretations indicate is that there is a need for many new laws in 2009 to make sure the conservatively-stacked courts have no more opportunities to nullify the existing law. The judges specifically responsible for nullifying these laws should be impeached and disbarred, because they have violated their oaths to support a right-wing extremist political agenda intent on dismantling the Constitution in favor of a police state. These fanatics are a cancer in the government and must be removed if our form of government is to survive another century.

There should be a declasifying of the warrants issued within a given time-frame of say 7 years. This would allow the individuals targeted with NSL's and wiretaps to address the charges that were "insinuated" with these extra-court invasions of privacy, impugnment of character, and violations of constitution acts outside the FISA court oversight.

These abuses after seven years, should be made public so that the veracity of the initial suspicion can be addressed by those targeted.

I think what you will find is that the program was used as a cointel act against Americans and that the rational of these acts were based on nothing more than political agenda.

The originating agency should be held liable at the agency level for these acts in a tort court and legislation enacted to prevent said agency from expressly engaging in activity, stipulated precisely to exclude executive directive.

This is gonna end up stinking to high heaven when we find that the editor of say the weekly standard could make a call and evoke NSL's for commentary that the editor found offensive, but accurate!