I should note, for those who are still arguing about whether or not the president broke the law when he intercepted enemy communications, they should go read that notorious neocon (note: I'm being sarcastic) Cass Sunstein's take on it.

Thank you for pointing out Professor Sunstein's argument.

It's going to take a while for me to digest it all, and I may not be able to engage it right away, as I have a day tomorrow doing girly stuff at a spa, but Sunstein's reputation is of course well-known.

At first blush, I think he arranges the issues in the wrong order. By placing the AUMF first in his disaggregation, he implicitly is arguing that the AUMF is the primary piece of law permitting warrantless domestic surveillance. I think the better way to consider these points is to begin with the specific and move upwards to the general. In other words, consider FISA, AUMF, Constitution rather than AUMF, Constitution, FISA.

Anyway, thanks for an interesting link.

A question, though.. why does this software decline to accept the numerical abbreviation for "fourth?" I try to be reasonably civil in what I write.. is the numerical version of the word offensive in some way I don't understand?

Armando disagrees with Professor Sunstein.

I offer no arguments myself. Read both and decide for yourself.

There are some problems with Sunstein's rather confusing post. For starters, it appears as if he himself is confused with surveillance law when he writes things like: "If Osama Bin Laden is calling New York, it's clear, I think, that the AUMF allows the President to listen to the call." The National Security Agency did not need the AUMF to enable it to monitor OBL's calls to anywhere. They could do that. FISA itself allowed them to do that prior to the AUMF.

In addition, Senator Tom Daschle was Majority Leader at the time of the AUMF and he has said that late in the negotiations over that bill the White House sought to include language that would have authorized the President to engage in domestic action. Daschle rejected that and it was not included in the AUMF. The fact that the Senate specifically rejected including domestic counterterrorism in the AUMF is a strong argument that the AUMF cannot be used to justify domestic wiretapping. Absent that authorization, the FISA would still trump the AUMF on this issue.

If you have "questionable content" in a comment post, it's because it's something that some spammer has used in the past, and the string is in my blacklist.

Well if it helps keep your blog spam free then I'm happy to spell out my numbers. The specific problem seems to be the number after three followed by the letter after s.

Well, spam URLs tend to contain numbers, and "fourth" is actually a more proper way to spell it, anyway. I try to keep the blacklist from containing strings that prevent people from typing useful things. For a long time, until I removed it, people weren't allowed to spell "socialist" here, because just as you can't spell "crap" without the "rap," you can't spell "socialist" without the "cialis."

I had trouble with wikip3dia once. And again, just now. ;-)

4 th

Yep, on further reading I think I've convinced myself that Professor Sunstein arranges his issues improperly. The accusation is that the president has violated FISA.

I'm not sure what lawyers do in situations like this. And as a surgeon I don't typically diagnose. But the diagnostic process, applied loosely to this case, might look something like this:

1: DId the president violate FISA?
2. If 1), then does the AUMF let him off the hook?
3. Does the Patriot Act let him off the hook?
4. Does any implict power in the constitution let him off the hook?
5. Is FISA even constitutional?
6. Is there any other law that permits this sort of wiretapping that trumps FISA?

If you arrange the questions this way, I think that Prof Sunstein might reach different conclusions. I did. And I will share with Prof Sunstein the tentative and preliminary qualification.

In other words, I'm a girl, so I get to change my mind.

It's unAmerican!! It's WRONG!!!

How hard is it to see that? Huh?

I didn't grow up during the Cold War hearing horror stories about the Russians listening in on anyone and everyones phone calls to be told that 'oh this is somehow allowed by the Constitution'.

Remember, we become the worst in what we hate...do you trust the faceless spooks at the NSA to not insert the names or numbers of their personal enemies into those dragnets? Have you never read about Herbert Hoover's secret files?

Since when did Americans start to trust faceless spooks to not abuse power?

All of the apologists on the Net saying that this nonsense might be technically legal are missing the forest for the trees.

I think the law question is moot. It's the desirable question that is interesting.

No fair! :-)

In other words, I'm a girl, so I get to change my mind.

Sam, in what way is the law question moot? That strikes me as very important indeed.

Did you mean that you've been persuaded that the administration violated the law, but might give them a pass because the actions were desirable? Or did you mean that the question of whether the actions were desirable should be answered before whether they were legal?