2 law professors: Obama "has seemingly forgotten the constitutional law he once taught."

[adric mutelovic]

In a NYT op-ed they co-wrote, talking about the NSA surveillance programs.

Excerpt:

The two programs violate both the letter and the spirit of federal law. No statute explicitly authorizes mass surveillance. Through a series of legal contortions, the Obama administration has argued that Congress, since 9/11, intended to implicitly authorize mass surveillance. But this strategy mostly consists of wordplay, fear-mongering and a highly selective reading of the law. Americans deserve better from the White House — and from President Obama, who has seemingly forgotten the constitutional law he once taught.

Link
http://www.nytimes.com/2013/06/28/opinion/the-criminal-nsa.html?pagewanted=all&_r=1&

[WillyT]

1. K & R !!!

[stevenleser]

2. And yet every relevant Federal Appeals court decision disagrees with them. nt

[Bluenorthwest]

3. So you are saying that which the courts uphold is always good and correct?

So you agree with SCOTUS on the VRA? If you don't, you are full of something slippery.

[stevenleser]

9. Nope, my short statement is exactly what it is. Not enough room there for your straw man. nt

[adric mutelovic]

10. which appeals judge said the programs were constitutional?

Still waiting for deatails on what the judges ruled.

[stevenleser]

12. Start with 1984 US v Duggan

1984 US v Duggan decision. Part of the Duggan decision reads:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

[adric mutelovic]

15. so foreign, not everyone and their mom?

I cant believe you said these cases were "relevant."

[stevenleser]

16. Did you read it and the other cases and situations it cites? Or did you decide it was irrelevant out

of thin air?

[rhett o rick]

90. Are you defending the spying or just Pres Obama? nm

[zeemike]

55. We are all foreigners now...

And our mothers too.
Did you not get the memo?

[rhett o rick]

89. Key word being FOREIGN. And that ruling was 30 years ago. nm

[adric mutelovic]

5. which cases are those?

The news broke recently. Have cases been ruled on so quickly?

[stevenleser]

11. Start with 1984 US v Duggan

1984 US v Duggan decision. Part of the Duggan decision reads:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

[adric mutelovic]

17. Id rather start with a ruling justifying collecting everyone's metadata

So tell me where to start. Good luck.

[stevenleser]

22. Duggan does that and more and provides more cases that back it up. All you have to do is read.

I can't make you read.

[adric mutelovic]

39. No. Duggan doesn't do that

Nowhere was it ruled that everyone's metadata could be collected.

You could post an excerpt to the part where the judge ruled that everyone's data may be collected even if it's not a specific investigation. But you haven't.

You made a claim which you have not proved. (that the 1984 is relevant to what we're discussing).

[stevenleser]

45. It absolutely lays out the power of the President and executive branch with regards to foreign

intelligence and surveillance aimed at people and groups possibly working with foreign entities and notes that FISA was an attempt by Kennedy and Carter to reign that in somewhat.

The FISA court that issued the warrant decides whether or not the ultimate target of that warrant is adequately demonstrated to be a foreign associated group.

All of the caselaw since FISA was enacted says that as long as the executive branch adequately demonstrates the ultimate target to be a foreign associated group, the warrant is justifiably issued.

[JDPriestly]

58. Duggan concerned the admissibility of evidence in a court in a case

in which a crime had been committed: the export of equipment to the Irish Republican Army. It was decided by the 2nd Court of Appeal in 1984 and is not fully relevant to the issue facing the American people today.

After Hanratty was introduced to Megahey, the government obtained from a judge of the United States Foreign Intelligence Surveillance Court ("FISA Court" and, generally, "FISA Judge&quot an order authorizing the FBI to conduct electronic surveillance of Megahey's home telephone. The surveillance was initiated on February 10, 1982, continued pursuant to a renewal order obtained on May 6, 1982, and terminated on June 21, 1982, the date of Megahey's arrest by the FBI. The wiretap intercepted several conversations between Megahey and Duggan concerning PIRA activities, and information from the wiretap led the FBI to conduct surveillance of the home of Eamon Meehan.

. . . .

http://scholar.google.com/scholar_case?case=12445013106107609695&hl=en&as_sdt=2&as_vis=1&oi=scholarr

The case challenged the constitutionality of the FISA law based on the Fourth Amendment, due process and the deprivation of equal protection to foreign nationals.

That case concerned FISA warrants issued on very specific grounds in the context of a criminal case.

There is no problem with that kind of a FISA warrant. The problem that we are concerned about is the practice of collecting and storing of the megadata on all calls and electronic communications that connect Americans to the world beyond our national borders.

The issue we face now was not dealt with in Duggan.

The Court in Duggan quoted the statutory limits on the FISA court at that time. Either the statute has been amended to allow the collection of all kinds of irrelevant materials or it is being violated.

I do not think that the cases that have been decided thus far deal with the issues presented by the massive surveillance that I understand to be in progress now.

Constitutional challenges can be based on the manner in which a law that is constitutional in some situations is being or has been applied. Just because FISA has been found to be constitutional in specific cases in the past does not mean that the broad scope of the FISA warrant that I saw thanks to Snowden would be found to be constitutional. And I suspect it might not be. The law is very complex. And the make-up of a court, the facts of a case and the quality of the lawyers, their research, their writing talents, their presentation and their charm can be result in new law.

Think Roe v. Wade. And that is just one example.

[BenzoDia]

6. Yep yep. These are not necessarily good laws, but the court rulings say it's okay.

[Enrique]

7. I don't believe that n/t

[stevenleser]

20. The caselaw doesnt care that you dispute its existence. nt

[Bluenorthwest]

28. But any reader that takes your word when you can not cite this 'plethora' of examples

is crazy. Case law exists to be cited. Invoking it as an article of faith is odd shit.

[stevenleser]

33. I have always happily provided the cases for people to check. How many would you like?

I already provided Duggan. How many more examples you would like?

[Hydra]

8. There's just one problem with that

The FISA court said they violated the 4th amendment. The suits have been blocked because the Admin is pulling "national security" and "state secrets."

Too bad Snowden leaked the docs, huh? They can't pretend it's not happening now.

[stevenleser]

36. You mean one out of several thousand requests right? Have you compared that to the average

success rate for requests for warrants in regular criminal cases?

[Hydra]

42. Huh?

We don't have the ruling yet- for all we know, they were ruling on a policy put in place for years, with hundreds of thousands of violations like during the Bush admin.

Your assertion is on par with "Well, they were only found guilty of murder once(so far), so what's the big problem?"

[progressoid]

13. And they've never been wrong.

[stevenleser]

14. Which you could say about anything. That is not an argument. nt

[progressoid]

19. Exactly. It's a meaningful as yours.

[stevenleser]

21. No, it's not. There is a plethora of caselaw behind my opinion. nt

[progressoid]

23. But you are assuming that your "plethora" is right.

There was a plethora of case law allowing race and gender discrimination too. Doesn't mean it was right.

[stevenleser]

25. Again, you can say that about anything. That is not an argument. nt

[Bluenorthwest]

27. I see your hyperbolic claims got wide mockery from the DU community as they should have

You made some of the most circular arguments I have ever heard.
You: I'm right because court agree
Others: Court are often wrong.
You: So what? Still proves I'm right.

Poor Steve.

[stevenleser]

32. You would like to think so wouldn't you? No one has been able to dispute a single contention.

I have all the facts on my side. As usual.

[ConservativeDemocrat]

60. Debating these self-described "Constitutional experts" here...

...is pretty pointless.

Case-law? Shmase-law. They know their Constitution by checking their gut to see if they're right.
Any idiot knows that the Fourth Amendment says that Barack Obama is a war criminal and Ralph Nader is President!

The eternal imposition of Colbert-like truthiness, unfortunately, doesn't just apply to Republicans.

I do admire you for fighting the good fight, but as the old saying goes, you can't reason someone out of a belief they didn't reason themselves into.

- C.D. Proud Member of the Reality Based Community

[rhett o rick]

93. So tell us who is on "your side" besides Clapper, Mueller, the Republican Party, and the Corp-Media?

[woo me with science]

35. +1

[arely staircase]

64. jeez do you not understand?

the OP is about two lawyers who say it is unconstitutional. steve provided links to other lawyers (in this case Art. 3 judges who actually MAKE case law), who say it is.

lord have mercy

[progressoid]

37. Nor is saying that legal precedent is a valid defense.

There is legal precedent for the war on drugs, for slavery, for voter suppression, for gender discrimination etc. But we (liberals) don't defend these wrongs based on legal precedent, we fight to change the law.

[stevenleser]

38. You should reread your title a few more times and see if it still makes sense to you.

I'm happy to rest on what you just wrote.

[progressoid]

41. Which title?

[a kennedy]

71. This post has nothing to do with what's being talked about here, I just want to say I love your

avatar and sig picture......love it.

[rhett o rick]

88. Please provide evidence. nm

[rhett o rick]

91. The warrant revealed by the Guardian clearly violates both the Constitution and also

the FISA law. No court has ruled on that warrant.

Why are you defending the Republican spy machine of Clapper and Mueller? Why didnt Pres Obama bring in his own people instead of continuing with Bush guys?

[Taverner]

4. Ever since Kennedy, no President has even questioned the Military Industrial Complex

He forgot because to remember would mean "end up like Kennedy"

[ConservativeDemocrat]

61. You're seriously suggesting Kennedy was assassinated by the U.S. military?!?

Come on guy. It's been fifty years, and the assassination was analyzed to death.
I think this conspiracy is far out there even for the D.U.

- C.D. Proud Member of the Reality Based Community

[Taverner]

66. I am not. I am saying they tried to take credit for it.

Oswald probably acted alone, but there was another shooter. We know this because there were two different caliber bullets found. We will most likely never know the identity of that second shooter.

Now I don't think the MIC (not the military, but the corporations like Gen Dynamics, Bell Helicopter - you know, the folks who add stuff to military spending bills that the military didn't even ask for) had anything to do with it, but they sure as hell tried to plant disinformation out there that they did.

Remember how scary "Loose Change" was when it came out? Even though it was all BS?

Better to be feared than loved, sayeth Niccolo Machiavelli

[rhett o rick]

92. So who do you theorize assassinated Pres Kennedy after all the evidence out there today? nm

[kentuck]

18. The President inherited the law-breaking from the previous Administration...

...and he kept enough of the lawbreakers from the previous Administration that advised him it was in the national security to keep the programs going. Being the new kid in town, there was simply no way he could challenge them, especially since we were at war in two countries. It was necessary to protect our country, they told him. That is the type of advice you get when you don't put your own people in charge of the government.

[AnotherMcIntosh]

26. He, of course, didn't just inherit the law-breakers. He happily adopted them.

We're fortunate that there wasn't enough room in his house for him to adopt and bring in Karl Rove, Donald Rumsfeld, and Dick Cheney as well.

[bike man]

29. Say what? "...Being the new kid in town,

there was simply no way he could challenge them..."

Perhaps the "new kid" wasn't aware that he was the "new president", and can in fact challenge stuff.

If one is not up the the job of POTUS from the first day, one should not seek the job.

[Tierra_y_Libertad]

24. Well, that durn 4th Amerndment is soooo tricky..and inconvenient.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

[msanthrope]

30. I find the quoting of bare amendments to be a facile tactic. For example, if I posted:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

and claimed that the government's requirement that I get a license to deal arms is unconstitutional, I suspect that I would be laughed at.

Even if I bolded parts of the amendment I really liked, I suspect I would not long survive the RKBA forum without laughter at my simple interpretation of the law.

There's a couple hundred years of jurisprudence you conveniently forget when you try an Originalist argument. Although that is the approach that Scalia---and certain RKBA posters favor, I am not persuaded.

[Tierra_y_Libertad]

34. Soo...what part of the 4th do you disagree with/agree with?

Should our government have the right to ignore the 4th to spy on us?

[msanthrope]

46. Again.... a better question would encompass some of the 200 years of

jurisprudence that have happened since ratification.

For example...I think erudite debate over the 2nd amendment tends to encompass Heller and Miller.

If you are talking about the 4th amendment, it would be helpful if you narrowed down what violation you think took place.

[Tierra_y_Libertad]

47. Do you agree with "200 years of jurisprudence" that gives the goverment the right to spy on its own

people?

[msanthrope]

48. You aren't being specific enough for me to comment on. Be specific. Who, what, where? nt

[Tierra_y_Libertad]

49. How specific do I have to be?

Do you agree that our government (allegedly democratic) has the right to spy on us?

How about multiple choice:

1. Under any circumtances

2. Under some circumstances

3. Under no circumstances

And, would you condone the government spying on you individually?

[msanthrope]

51. Define 'spying.' nt

[Tierra_y_Libertad]

52. Here

noun (plural spies)

a person who secretly collects and reports information on the activities, movements, and plans of an enemy or competitor.
a person who keeps watch on others secretly: [as modifier]:a spy camera

[msanthrope]

54. Define 'spying.' Not 'spy.'. Define the activities you think are 'spying.' nt

[Tierra_y_Libertad]

57. You're kidding.

a person who keeps watch on others secretly:

A person who is keep(ing) watch on others secretly.

So now you're arguing about English grammar to defend what the NSA is doing? "It depends on what the word of "is" is."?

[msanthrope]

59. No, I'm not. Define what you think is 'spying.' A specific action. nt

[Tierra_y_Libertad]

63. How about peeking through someone's window without their knowledge?

Reading their mail without their knowledge.

Going through their drawers without their knowledge.

Without their knowledge or permission.

[msanthrope]

65. LEO's on lawful business can look through your windows. What they can do with what they see depends

on the circumstances.

Absent a warrant, (either Title III or FISA or other) your mail cannot be intercepted. (Different rules apply for prisoners.)

A house search requires a warrant.

I'd give you more specific answers if you would give me more specific instances.

[Tierra_y_Libertad]

67. You really aren't going to answer the question, are you?

How many angels can dance on the head of a needle?

What is the sound of one hand clapping?

I know, it depends on the size of the needle, the names of the angels, and number and width of the fingers.

[msanthrope]

68. When you ask me a question with some specificity, I answer it. I just did. nt

[Tierra_y_Libertad]

69. Do you approve of the government spying on you?

As in, without your consent? Without a warrant? Without probable cause?

I even gave you a multiple choice selection.

[msanthrope]

72. I have no evidence to think the government is doing anything impermissible to me.

If you have any evidence, please let me know.

[Tierra_y_Libertad]

73. Or, to anyone else?

[msanthrope]

74. To whom? Again, if you've got specifics, let us know. nt

[treestar]

83. I would have to be OK with it if it were allowed under the law

And to object, I'd have to find out and have some damage. If I never knew it occurred, then sustained no damage, I would not even have standing to challenge it.

The world is either a much scarier place than you think it is, or there is a lot not worth worrying about as much as you do.

[treestar]

82. And apparently, that is the meaning of the law to you

Or its extent.

You have no clue that the Fourth Amendment is not interpreted by means of your feelings or gut reactions.

You may surprised to know that the Fourth Amendment would allow for some spying - on Americans.

[treestar]

79. Exactly

They think they are so smug when they do that. It ends up showing how uninformed they really are.

[msanthrope]

81. I've decided that the perfect reply to that is the 2nd, or the 3rd amendment. nt

[flamingdem]

31. Lot's of a-hole lawyers trying to get their 15 minutes at Obama's expense

I've been seeing a lot of this. They want to get on the lecture circuit

[Hydra]

43. Haha

Those silly laws...what do we need them for, right?

A-hole lawyers for pointing out lawbreaking...

[Scurrilous]

56. Bingo.

I've seen these type of lawyers ads on late-night TV.

1-800-EsqOpEd I believe.

[Enrique]

62. yes all the best lawyers are ok with the surveillance

like this one.

http://www.nationalreview.com/corner/350498/nsas-surveillance-no-clear-constitutional-violations-john-yoo

[treestar]

84. Both sides get a lawyer in a case - did you know that?

If some lawyer is going to argue it is wrong, you can bet there's another one out there to argue that it's A-OK.

That's how the professors who started this thread are wrong. They should know that. They should be able to argue both sides of the case.

[FreakinDJ]

80. Obama got his fame at the expense of the Working Class and the Constitution

Name one instance just one were Obama stood up for the sake of America's Working Class or the Constitution there of

.......

[rhett o rick]

94. So who do you stand with? Clapper and Mueller? The Corp-Media? nm

[FlyByNight]

40. Who would be better to circumvent the Constitution...

...than a constitutional scholar?

Don't recall hearing/reading from anyone where the probable cause is in the NSA data dragnet (assuming the 4th Amendment isn't, effectively, being ignored). Haven't even heard this question asked of the administration (or its surrogates), much less answered.

[Hydra]

44. They keep pushing it off as "metadata"

As if what they are collecting is not relevant to the probable cause issue.

I don't argue the metadata issue because IMO it's a non-issue. They are collecting EVERYTHING on EVERYONE with warrants that don't say anything about probable cause. The closest thing I've seen to the probable cause idea they have is that at some point anything they collect could be used for criminal investigations.

In other words, we're all suspect.

[treestar]

85. A constitutional scholar would be able to argue either side of it

With legal precedent, before the courts.

Most Constitutional scholars know that since Marbury v. Madison, the courts decide, so that if you are president, you don't decide that - you use/enforce the law as is, and stop only when the law is repealed or the courts declare it unconstitutional. The limits of what the President can do are in the Constitution.

The President can't legislate either. Or run a state. You don't even have to be a constitutional scholar to know that.

[bvar22]

50. Like Bush, Obama got a note from his lawyer that says everything is Just Peachy Legal!!!

[marions ghost]

53. This is the best thing I've read so far on this subject

A really well-written, comprehensive job. Details why they believe what is being done is criminal.

Explains PRISM very well. Worth reading just for that alone. (Read at the site).

http://www.nytimes.com/2013/06/28/opinion/the-criminal-nsa.html?pagewanted=all&_r=2&

Excerpt:

The government knows that it regularly obtains Americans’ protected communications. The Washington Post reported that Prism is designed to produce at least 51 percent confidence in a target’s “foreignness” — as John Oliver of “The Daily Show” put it, “a coin flip plus 1 percent.” By turning a blind eye to the fact that 49-plus percent of the communications might be purely among Americans, the N.S.A. has intentionally acquired information it is not allowed to have, even under the terrifyingly broad auspices of the FISA Amendments Act.

How could vacuuming up Americans’ communications conform with this legal limitation? Well, as James R. Clapper Jr., the director of national intelligence, told Andrea Mitchell of NBC, the N.S.A. uses the word “acquire” only when it pulls information out of its gigantic database of communications and not when it first intercepts and stores the information. If there’s a law against torturing the English language, James Clapper is in real trouble.

----

This hairsplitting is inimical to privacy and contrary to what at least five justices ruled just last year in a case called United States v. Jones. One of the most conservative justices on the Court, Samuel A. Alito Jr., wrote that where even public information about individuals is monitored over the long term, at some point, government crosses a line and must comply with the protections of the Fourth Amendment. That principle is, if anything, even more true for Americans’ sensitive nonpublic information like phone metadata and social networking activity.

We may never know all the details of the mass surveillance programs, but we know this: The administration has justified them through abuse of language, intentional evasion of statutory protections, secret, unreviewable investigative procedures and constitutional arguments that make a mockery of the government’s professed concern with protecting Americans’ privacy. It’s time to call the N.S.A.’s mass surveillance programs what they are: criminal.

Jennifer Stisa Granick is the director of civil liberties at the Stanford Center for Internet and Society. Christopher Jon Sprigman is a professor at the University of Virginia School of Law.

[The Link]

70. I don't think he paid much attention in some of his classes.

[kenny blankenship]

75. Everytime the familar face of law and Constitution is chipped at - blasting off an eyebrow here

or a nostril there- there is an army of Constitutional lawyers to be seen, swinging the battering ram and setting up the demolition charges. Successful attacks undermining the Constitution and the sound application of the law don't generally proceed from knucklewalking club wielding trogs like Rick Perry or George W. Bush. They are carried out by very clever, highly educated assholes who would be welcome in any Ivy league faculty club.

The problem these 2 perfessers have is, they don't understand why most of their students actually take their classes to learn 'bout that ol' mangy scrap of parchment in the first place. The money is all in putting more holes in the thing and finding ways to get around the law, not in respecting it.

[indepat]

76. When much of junior's handiwork has been ratified and continued, it shouldn't be surprising that the

Constitution must take its lumps by being treated as "just a piece of paper?"

[FreakinDJ]

77. Tell his Mama watch out - He'll sell her out too

[treestar]

78. These professors apparently never learned it

Obama is carrying out the Presidency, which is also defined in the Constitution. The legislature decides the laws. The Courts interpret them. These idiots seem to expect that Presidents should overtake the job of the Judiciary.

[rhett o rick]

96. The argument that the President is helpless is contrary to the many posts here that give him credit.

This is happening on his watch and I dont believe he is helpless. He appointed Clapper and Mueller much to the Republicans delight. He could have appointed a DEMOCRAT.

It appears that the NSA is violating the FISA law. What do you think the President should do?

[treestar]

97. The President is helpless outside Article II

He's not supposed to do the jobs in Article I or III. That was indeed the whole idea. The Founders did not want a king.

[rhett o rick]

98. He can appoint another head of the security agencies if he thinks they are operating outside

the law. In fact he can have them arrested. He is not helpless.

[treestar]

99. The whole complain is that this is within the law

People cannot be arrested for administering an "unconstitutional" law that has not yet been declared unconstitutional.

[rhett o rick]

100. The NSA is operating outside the law. Your continued denial wont make it right. The warrant that

was published was not legal. It did not meet the standards of the law. It VIOLATED THE FISA LAW. It didnt provide probable cause and wasnt specific, both required by our Constitution, the document you are so willing to dump.

But the Corp-Media, the Repubican Party, lying REpublicans Clapper and Mueller are fine with the spying of the authoritarian state. And apparently the Conservative Democrats are siding with the REpublicans on this. Sickening.

[Doctor_J]

86. They didn't get their ponies

and don't understand chess. And don't know how government works.

Obama has forgotten a lot of things he once knew. Candidate Obama was a lot more to my liking than president Obama

[Fire Walk With Me]

87. The death of the 1st, 4th, and 5th Amendments under his watch underscore the sentiment.

Along with arguments against the second...That's a lot of Constitution killing going on.

[NCTraveler]

95. Obama is a very intelligent man.

In no way has he forgotten anything about the constitution. He just interprets it differently than he did six years ago.

[rhett o rick]

101. Yes he is now siding with the Republicans on the Patriot Act and domestic spying.

You notice that the Corp-Media is siding with the President on this. That's because they always side with the conservative side, like Clapper and Mueller (Bush Republicans).