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Bill Bans NSA Eavesdropping

Zonk posted more than 7 years ago | from the stay-out-of-my-head dept.

Privacy 424

An anonymous reader writes "The US house of representatives today passed a bill outlawing illegal domestic wiretapping by the government. Now government agencies are only allowed to access your private communications under terms of FISA. 'As the Senate Report noted, FISA "was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it." The Bill ends plans by the Bush Administration that would give the NSA the freedom to pry into the lives of ordinary Americans. The ACLU noted that, despite many recent hearings about 'modernization' and 'technology neutrality,' the administration has not publicly provided Congress with a single example of how current FISA standards have either prevented the intelligence community from using new technologies, or proven unworkable for the agents tasked with following them.'"

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"Outlawing illegal domestic wiretapping." (5, Funny)

TodMinuit (1026042) | more than 7 years ago | (#19089249)

Only in a Government do you need to outlaw something that is already illegal.

Re:"Outlawing illegal domestic wiretapping." (4, Funny)

Red Flayer (890720) | more than 7 years ago | (#19089373)

It passed review by the Committee of Redundancy Committee, whereupon is was put to a vote before the House of Representatives. The passing vote means that it will now be put to a vote before the House of Representatives.

I smell... (2, Insightful)

RingDev (879105) | more than 7 years ago | (#19089709)

another veto... or is that a line signature?

Either way, it's not going to have an effect on the current President.

-Rick

Re:I smell... (3, Insightful)

PopeRatzo (965947) | more than 7 years ago | (#19089745)

That's right. Bush will create a signing statement that basically says he's going to ignore the law. Or, he'll just veto it because he's got the world swinging from his nuts and he can if he wants to.

Re:I smell... (1)

Opportunist (166417) | more than 7 years ago | (#19089765)

I sign that he's a nut. I don't really believe that he got balls 'til he proves it.

I wish the Congress would sack up and IMPEACH. (0, Offtopic)

FatSean (18753) | more than 7 years ago | (#19089823)

I've stopped donating money to the troops...they love Bush and his war so much, they can solicit donations once the funding runs out. So tired of this bullshit, so tired of being told I 'do not support the troops' beause I think they are being used in an amoral, unethical and illegal manner.

Meh.

Re:"Outlawing illegal domestic wiretapping." (0, Redundant)

AoT (107216) | more than 7 years ago | (#19089719)

Nope, they have to send it back to the redundancy committee for a full review before it returns to the house floor.

You don't even want to know the senate and conference procedures.

Attention Moderators: (3, Funny)

Reverend528 (585549) | more than 7 years ago | (#19089787)

Mod Parent Redundant.

Again (-1, Redundant)

Anonymous Coward | more than 7 years ago | (#19089891)

I say, mod the grandparent redundant.

Only in a divided government, yeah (5, Insightful)

jfengel (409917) | more than 7 years ago | (#19089409)

This is really about the separation of powers. The President insists that since he has wartime authorization, he has pretty wide authority to break the law. That is, the law is written, and he doesn't have to follow it because another law trumps it. That's what you get when you have a big, complex legal code.

This bill doesn't really change anything legally, but when it comes time for the third branch of government to have their say on the issue, Congress' intentions will be unambiguous: yes, they do mean that FISA is the ONLY way you can do domestic wiretapping.

It would be nice if laws could be simple and unambiguous, like a well-written piece of software. Instead, laws are written over a long time by a lot of different people, just like real software. Software crashes; laws get inconsistencies. You can point it out for laughs but when it's your phone they're tapping, or your right to life/liberty/property sitting in the ambiguity, it's not so funny.

Re:Only in a divided government, yeah (4, Insightful)

smitty_one_each (243267) | more than 7 years ago | (#19089535)

Oh, just admit it: the law is the OS of the land, and legislation is source code.
Legislators and lawyers are the coders.
And you thought <despised> had cruft/stability/performance issues...

Re:Only in a divided government, yeah (4, Funny)

jfengel (409917) | more than 7 years ago | (#19089799)

Very much so. And for the most part, you can at least imagine that [despised] was created by at most a few dozen people, over a few years, with more or less the same goal in mind.

Legislation, on the other hand, is created by people who absolutely despise each other, over the course of centuries. Whenever the balance of power shifts, they add MORE source code to the mix, trying to counteract what the other guys added.

And there's no debugger. The best you can hope for is to throw the legislation out there and hope that it has the effect you want.

It would be nice to throw it out and start all over every so often, but it's impossible to know if the new bugs and switchover costs outweigh dealing with upgrading the existing hunk of crap.

Blue screen. (0, Offtopic)

msauve (701917) | more than 7 years ago | (#19089889)

Damn. The Minitrue, er, Supreme Court ruled that Black is White [cornell.edu] . Looks like that OS is fatally flawed.

Re:Only in a divided government, yeah (3, Insightful)

HomelessInLaJolla (1026842) | more than 7 years ago | (#19089581)

The President insists that since he has wartime authorization
Is anyone ever going to question the perpetual state of war that we're being kept in? Or is it just too darn profitable for the investment brokers pulling the strings on the politicians?

Re:Only in a divided government, yeah (5, Insightful)

kst (168867) | more than 7 years ago | (#19089723)

This is really about the separation of powers. The President insists that since he has wartime authorization, he has pretty wide authority to break the law. That is, the law is written, and he doesn't have to follow it because another law trumps it.

The problem with that reasoning is that there isn't another law that grants this authority to the President.

This bill doesn't really change anything legally, but when it comes time for the third branch of government to have their say on the issue, Congress' intentions will be unambiguous: yes, they do mean that FISA is the ONLY way you can do domestic wiretapping.

President Bush is quite fond of "signing statements". When President Carter signed FISA, he issued a signing statement saying that FISA is the only way you can do domestic wiretapping.

It would be nice if laws could be simple and unambiguous, like a well-written piece of software. Instead, laws are written over a long time by a lot of different people, just like real software. Software crashes; laws get inconsistencies. You can point it out for laughs but when it's your phone they're tapping, or your right to life/liberty/property sitting in the ambiguity, it's not so funny.

This particular law is already unambiguous, and the administration has been unambiguously violating it.

Re:Only in a divided government, yeah (0)

Anonymous Coward | more than 7 years ago | (#19089747)

It's pretty simple, the court needs to declare the truth, "there is no war", which would of course make all the other dominoes fall into place that we need to censure and remove from power (and arrest, if necessary) those who have broken the law.

Re:Only in a divided government, yeah (0)

Anonymous Coward | more than 7 years ago | (#19089903)

the court needs to declare the truth, "there is no war"
Huh? How is there not a war? Maybe you'd like to fly out to Iraq and tell our troops there that "there is no war" - I'm sure they'd be fascinated to learn that they aren't actually over there dying in their thousands at all.

While you're over there, it'd be great if you could also tell the terrorists that they don't exist. They kinda don't seem to have realised yet.

FISA is unconstitutional (5, Insightful)

fyngyrz (762201) | more than 7 years ago | (#19089835)

This is really about the separation of powers.

No. It is about a power that was never made available to the federal government in the first place. Warrantless wiretapping is unconstitutional, period. That includes FISA. FISA represents exactly the same kind of reasoning as the ridiculous topsy-turvey interpretation of the commerce clause. The premise is that wiretapping itself does no harm, completely ignoring the breach of your security. Here is the fourth amendment:

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.

You'll note the order there - it isn't an accident: first they get the warrant, then then they can search, seize and generally violate you security. This is the basis for telecommunications law that outlaws wiretapping in the first place.

FISA is based upon the very peculiar notion that they can first tap, and then ask for a warrant, and if a warrant is not issued, then they just "forget" about the tap and - somehow - everything is just peachy. But clearly, it isn't. Your security and privacy was violated, without a warrant. This of course is entirely aside from the fact that FISA is a rubber-stamp organization; just look at the statistics for warrants granted as opposed to warrants refused. Consider further the fact that I am not allowed to put a tap on your phone line. For any reason. I'm not even allowed to listen to a cell phone conversation you broadcast on an analog mode cell connection or an RF-based portable home phone. This is because it is an invasion of your privacy; and because your security is threatened. It isn't because I didn't get a warrant (I can't, as I am a citizen, not a member of law enforcement) and it isn't because I could get a warrant later, if it seemed like I needed to - I still can't. No, it is simply because your security is guaranteed by the constitution, and it is very clear that such an action would be in violation. But this is exactly what the government does with FISA. They don't bother to get a warrant, they just listen whenever they decide they want to. Clearly, FISA is unconstitutional.

Lastly, all arguments that the constitution is irrelevant here somehow because of "need" are false. If there is a real need, the constitution contains the tools required so that it may be modified such that those needs may be met. No, this is simply an end-run around the intent of the document without having to be inconvenienced by its restrictions. Remember, the constitution is the constituting authority for the federal (and state, with regard to amendments 1-10, as per the 14th) government, and any action that is forbidden on the one hand, or not an enumerated power in the case of the feds, is both unconstitutional and lacking any legitimate authority. Don't confuse power with authority.

Re:Only in a divided government, yeah (5, Insightful)

truthsearch (249536) | more than 7 years ago | (#19089857)

The President insists that since he has wartime authorization...

Except he doesn't. Congress hasn't declared war. By his logic every president in the last 30 years could spy on Americans without warrant because we're in a "war on drugs." We're not legally at war until declared by Congress. We're just technically at war, and reality has no bearing in the legal system.

Pray tell.... (1)

StressGuy (472374) | more than 7 years ago | (#19089873)

"It would be nice if laws could be simple and unambiguous, like a well-written piece of software."

Which do you suppose we will see first?

And would the expression "GO TO JAIL" be replaced by:

IF {Guilty}
        WHILE (sentence)
                jail
        ENDWHILE
ELSE
home

Re:"Outlawing illegal domestic wiretapping." (3, Funny)

Interfect (1089721) | more than 7 years ago | (#19089417)

I stopped reading at "outlawing illegal". Maybe they should outlaw illegal filesharing next? Or illegal murder?

Re:"Outlawing illegal domestic wiretapping." (5, Funny)

Bogtha (906264) | more than 7 years ago | (#19089455)

Don't worry, Bush will be along shortly to double-un-re-de-ban it (no backsies!) any second now.

Re:"Outlawing illegal domestic wiretapping." (2, Insightful)

Keyslapper (852034) | more than 7 years ago | (#19089551)

Correction: Only in the US Government do you need to outlaw something that is already illegal.

In the US, making something illegal is but the first step in outlawing that action or thing. The next step is to outlaw it, but even then, the thing has to be ostracized, vilified, hog tied, circumcised, deep fried, and then finally, it can be made to be a "bad thing", which is often punishable by a lot of hooting, halooing, and in more serious cases a downright hullabaloo; but only when it is made a "terrible thing" (a much more involved and convoluted process, not to mention expensive) are there any real consequences.

Re:"Outlawing illegal domestic wiretapping." (0)

Anonymous Coward | more than 7 years ago | (#19089617)

When illegal domestic wiretapping is outlawed, only outlaws will perform illegal domestic wiretaps.

Re:"Outlawing illegal domestic wiretapping." (0)

Anonymous Coward | more than 7 years ago | (#19089979)

Not illegal: Patriot Act (in the USA).

Re:"Outlawing illegal domestic wiretapping." (2, Insightful)

Mahjub Sa'aden (1100387) | more than 7 years ago | (#19090033)

See, as a Canadian, this is what seems strange to me about the American government: your constitution is supposed to be the highest law in the land, correct? And the only way to change the highest law is to basically have your Congress or States jump through all kinds of flaming hoops.

Correct me if I'm wrong, but does not your Fourth Amendment rule out blanket wiretapping of your own citizens without a warrant? Making this wiretapping illegal?

Perhaps I'm reading this too simplistically or something. Are there some sort of "wartime" rules that rise above this Fourth Amendment?

Errr (-1, Redundant)

HeavensBlade23 (946140) | more than 7 years ago | (#19089257)

How do you outlaw something that's already illegal?

Re:Errr (2, Insightful)

Richard McBeef (1092673) | more than 7 years ago | (#19089313)

How do you outlaw something that's already illegal? That means they made it legal.

Re:Errr (1)

nschubach (922175) | more than 7 years ago | (#19089667)

I don't not think so. But who can't tell what's not going on anymore.

Re:Errr (0)

Anonymous Coward | more than 7 years ago | (#19089383)

Since the "The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001" or as it is commonly known, the "We can do whatever we want, whenever we want, for any reason we want Act of 2001."

Hopefully they'll be able to get a an override vote on this after the president vetos it.

Re:Errr (4, Funny)

dr_dank (472072) | more than 7 years ago | (#19089561)

How do you outlaw something that's already illegal?

By declaring war on it, dummy.

Re:Errr (1)

Opportunist (166417) | more than 7 years ago | (#19089829)

Nonono, declaring war makes it legal. Don't remember the saying "all's fair in love and war"?

In the US, the love has been stripped as we've seen with the former prez. Only in war everything's fair now. I bet Clinton would have had less troubles when he shot Monica instead. And declared her a child-porn possessing terrorist.

"Outlawing illegal eavesdropping"? (1)

computational super (740265) | more than 7 years ago | (#19089259)

What a world... where you have to specifically outlaw the illegal behavior of the government.

"What a world" (3, Insightful)

EmbeddedJanitor (597831) | more than 7 years ago | (#19089797)

What a country.

Premature Especulation (4, Insightful)

Stanistani (808333) | more than 7 years ago | (#19089265)

This isn't fully baked yet. You need a Senate version, a conference, a final bill... wait for it... and a Presidential signature. Ooops.

Re:Premature Especulation (1, Insightful)

zappepcs (820751) | more than 7 years ago | (#19089303)

This isn't fully baked yet. You need a Senate version, a conference, a final bill... wait for it... and a Presidential signature. Ooops.
You forgot one step before the Presidential signature: Impeach Pres and V.Pres... wait, then send for signing

Re:Premature Especulation (1)

Opportunist (166417) | more than 7 years ago | (#19089881)

No way. Two impeachments in a row, what do you think! Can't you imagine the international loss of trust, esteem and friendsh...

Scratch that. You can't lose what's already lost.

Re:Premature Especulation (1)

truthsearch (249536) | more than 7 years ago | (#19089927)

You forgot the step after the failed impeachment hearings: get 2/3 vote by the Senate to override the Presidential veto.

Yeah, I know, never going to happen.

Re:Premature Especulation (1, Troll)

eln (21727) | more than 7 years ago | (#19089315)

I predict, if this gets through the Senate, Bush will sign it along with a signing statement noting that he doesn't have to follow the law. That way he can continue violating the law without having to worry about bad press.

Exactly (0)

Anonymous Coward | more than 7 years ago | (#19089579)

It's a shame more people aren't paying attention. The system is badly broken and has been horrendously abused by the Current Occupants. If it wasn't so serious, it would be farcical.

Re:Premature Especulation (1)

Zephyros (966835) | more than 7 years ago | (#19089327)

Or enough support to override the veto.

Re:Premature Especulation (1)

Rob T Firefly (844560) | more than 7 years ago | (#19089457)

This bill passed with a vote of 225-197. If it's vetoed by the President and returned to Congress, they'll need a two-thirds majority to override the veto and make it law.

Re:Premature Especulation (1)

Zephyros (966835) | more than 7 years ago | (#19089707)

Then we'll have to push our reps to go after this one.

Re:Premature Especulation (2, Funny)

CthulhuDreamer (844223) | more than 7 years ago | (#19089463)

Signing it's not a problem, just add a signing statement that it doesn't apply to the NSA and everything is golden.

Re:Premature Especulation (0)

Anonymous Coward | more than 7 years ago | (#19089515)

Obviously Bushman will veto it anyway, then even though it is illegal to wiretap. Bush's thinking that by veto'ing it will make it legal and even harder to keep his snoops out of our faces... It's kinda like a revolving pig snout sticking out of the air in our faces.

Re:Premature Especulation (1)

lawpoop (604919) | more than 7 years ago | (#19089627)

You need... a Presidential signature
The congress can override a veto with a 2/3rds majority vote.

It's up to us to put pressure on our representatives to do it. Don't give up and leave it in Bush's hands. The United States is a democracy of, by, and for the people. If Bush gets away with vetoing this, it will only be because we let him.

Re:Premature Especulation (1)

Opportunist (166417) | more than 7 years ago | (#19089935)

The United States is a democracy of, by, and for the people.

From the outside, it looks more like a corporate state, run by various lobbyist groups and "advisors", with a fun show thrown every four years with spectator participation to keep the masses entertained.

Re:Premature Especulation (3, Informative)

DragonWriter (970822) | more than 7 years ago | (#19089661)

This isn't fully baked yet. You need a Senate version, a conference, a final bill... wait for it... and a Presidential signature.


Its the annual funding bill for the intelligence community. Presumably, the President would like to have some authority to spend funds for intelligence purposes.

Re:Premature Especulation (1)

Lockejaw (955650) | more than 7 years ago | (#19089827)

That hasn't stopped him from vetoing bills to fund the Iraq occupation. Remember, he's still not quite used to the idea that he doesn't own Congress anymore.

Re:Premature Especulation (1)

DragonWriter (970822) | more than 7 years ago | (#19089955)

That hasn't stopped him from vetoing bills to fund the Iraq occupation.


Well, a bill, though he is threatening another one that has passed the House but not yet the Senate.

Huh? (5, Funny)

vjmurphy (190266) | more than 7 years ago | (#19089279)

"passed a bill outlawing illegal domestic wiretapping by the government"

Good thing they outlawed illegal wiretapping, since outlawing legal wiretapping would have made it illegal, thus making the above sentence redundant. Wait. I think I hurt my brain.

Re:Huh? (5, Funny)

Spudtrooper (1073512) | more than 7 years ago | (#19089347)

Mod bill -1 Redundant

Re:Huh? (1)

iknownuttin (1099999) | more than 7 years ago | (#19089777)

Wait ... wait..making something that's illegal illegal is a double negative. So logically, that'll make the wiretapping legal.

P.S. I am available to be the next Attorney General but I am completely unqualified.

Huh? (0, Redundant)

14erCleaner (745600) | more than 7 years ago | (#19089291)

Why would they need to outlaw it, if it's already illegal?

Re:Huh? (0)

Anonymous Coward | more than 7 years ago | (#19089425)

IANAconstitutionalL, but because Executive Order trumps the law, and the DHS has been operating within EO but outside the law?

What's that smell (4, Insightful)

techpawn (969834) | more than 7 years ago | (#19089293)

Oh.. another veto... just because a bill passes doesn't make it a law

*shrug* (1)

FatSean (18753) | more than 7 years ago | (#19090029)

I can't wait until the military funding dries up, and we can hang the commanders who send the soldiers afield without proper support.

It's a pissing contest now, but it doesn't affect me since I don't fucking call anyone or even email anyone except for work. In-person communication FTW!

Don't we already have this (3, Insightful)

Anonymous Coward | more than 7 years ago | (#19089295)

You know, in our constitution...

"Amendment 4
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."

Veto in... (1)

Anarchysoft (1100393) | more than 7 years ago | (#19089297)

...3, 2, 1.

Re:Veto in... (0)

Anonymous Coward | more than 7 years ago | (#19089379)

Followed by Congress override and impeachment in 3.. 2.. 1..

Re:Veto in... (1)

Anarchysoft (1100393) | more than 7 years ago | (#19089395)

Followed by Congress override and impeachment in 3.. 2.. 1..
I commend Congress on this excellent secret plan. ;)

Veto Coming? (2, Insightful)

stevedcc (1000313) | more than 7 years ago | (#19089307)

Think Bush will get that Veto out again? He really doesn't seem to like things that get in the way of his goals.

Unconstitutional (3, Interesting)

Kohath (38547) | more than 7 years ago | (#19089335)

FISA "was designed . . . to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it."

The Legislative branch doesn't have the authority to take Executive powers away whenever it wants to. The Executive branch either has a power under the Constitution or it doesn't. The Congress doesn't have the authority to take away Executive powers it didn't grant in the first place.

Re:Unconstitutional (3, Insightful)

morgan_greywolf (835522) | more than 7 years ago | (#19089431)

Which, it would seem that the Executive branch doesn't have the power under the Constitution:

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


Re:Unconstitutional (0)

Anonymous Coward | more than 7 years ago | (#19089523)

Ah, but it doesn't list telephones! Nor people living in apartments, for that matter, ...

Re:Unconstitutional (1)

Kohath (38547) | more than 7 years ago | (#19089615)

That's an entirely different argument that's much more complicated. There's various case law. There has been no definitive court ruling specifically on this issue though -- unless I missed a recent one.

The separation of powers argument is fairly clear, however.

Re:Unconstitutional (1)

DragonWriter (970822) | more than 7 years ago | (#19089819)

That's an entirely different argument that's much more complicated.


No, the two arguments are connected.

There's various case law.


Yes, and one factor that some of that case law points to in whether or not a search is "reasonable" under the Fourth Amendment is whether or not it is consistent with, or in conflict with, statutory controls, the latter being a factor which weighs against reasonableness.

Re:Unconstitutional (1)

Applekid (993327) | more than 7 years ago | (#19089475)

"The Legislative branch doesn't have the authority to take Executive powers away whenever it wants to."

Not by themselves, but certainly they can get the ball rolling by suggesting a Constitutional Amendment. See Article 5 [wikipedia.org] .

Re:Unconstitutional (2, Funny)

Interfect (1089721) | more than 7 years ago | (#19089487)

Bush doesn't have the authority to do what congress doesn't have the authority to prohibit him doing. If that makes sense. So it all works out.

Re:Unconstitutional (0)

Anonymous Coward | more than 7 years ago | (#19089591)

> The Legislative branch doesn't have the authority to take Executive powers away whenever it wants to. The Executive branch either has a power under the Constitution or it doesn't. The Congress doesn't have the authority to take away Executive powers it didn't grant in the first place.

From U.S constitution:

Section 8: Powers of Congress
[...]
To make rules for the government and regulation of the land and naval forces;
[...]
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof

Re:Unconstitutional (1)

absoluteflatness (913952) | more than 7 years ago | (#19090009)

To make rules for the government and regulation of the land and naval forces;
Exactly what does domestic wiretapping have to do with "the government and regulation of the land and naval forces"? Perhaps you were over-focusing on the "to make rules for the government" portion. Better work on those late 1700's grammar skills.

Re:Unconstitutional (5, Interesting)

Richard_at_work (517087) | more than 7 years ago | (#19089619)

The problem with this is that the Executive Branch does not have the power to begin with - its an assumed power under executive order.

I just quickly read up on some of the powqers of the Executive Branch and its actually quite scary as to how many powers the President uses during his term in office that aren't actually codified in US law anywhere but seem to be used as wide ranging systems to get around law - executive orders and signing statements are the two most obvious ones, both used to circumvent laws meant to restrict certain acts and both are powers that are not granted by the Constitution nor current US law.

You people really need to do something about that!

Re:Unconstitutional (1, Interesting)

Kohath (38547) | more than 7 years ago | (#19089705)

...signing statements...

Those signing statements actually have no effect. They are simply clarifications of policy. All the complaining you're hearing about them is just noise. If anything, it's a lot more honest to issue signing statements declaring a policy rather than to simply implement the policy quietly.

Your attempt at scare-mongering probably worked on some other people though.

Re:Unconstitutional (1)

truthsearch (249536) | more than 7 years ago | (#19089989)

You may want to actually read some of the hundreds of signing statements. "This doesn't apply to me" doesn't count as "clarification of policy".

Re:Unconstitutional (0)

Anonymous Coward | more than 7 years ago | (#19089713)

The Legislative branch doesn't have the authority to take Executive powers away whenever it wants to. The Executive branch either has a power under the Constitution or it doesn't.

No. The basic model of government is that congress makes laws, the judicial branch interprets the laws and the executive branch implements the laws. The basic model is that congress tell the executive what to do. That's why it's an 'execut'ive.

As an example, congress decides whether the USA goes to war (by declaring war) but the executive is responsible for the actual conduct of the war.

The Congress doesn't have the authority to take away Executive powers it didn't grant in the first place.

Well, there are certain poweres reserved for the executive branch in the US constitution that congress can only remove through the process of constitutional amendment. On the other hand, congress could make it illegal for the president to walk around naked even if congress had never granted the president the power to walk around naked in the first place.

With respect to domestic wiretapping, the US constitution doesn't specifically say anything one way or the other. Wiretapping technology did not exist when the US constitution was written. The question is whether some other aspect of the US constitution - for example, the 4th Amendment - has any bearing on domestic wiretapping. That would be for the judicial branch to decide but the answer is far from clear.

However, in the absence of a judicial branch opinion granting the executive branch wiretapping powers, it is, in fact, the legislative branch that decides whether the executive branch is (or is not) allowed engage in domestic wiretapping.

Re:Unconstitutional (1)

DragonWriter (970822) | more than 7 years ago | (#19089757)

The Legislative branch doesn't have the authority to take Executive powers away whenever it wants to.


The Legislative branch does have the authority to decide how to allocate funds and what purposes they may be used for, and this is the annual funding bill for the intelligence community. The Executive branch has no authority spending money to do anything not authorized by the legislation appropriating the money used.

The Executive branch either has a power under the Constitution or it doesn't.


That fails to exhaust the possibilities. While in many areas of domestic affairs, where the government has Constitutional power to do things, the Executive has power only so far as authorized by Congress, in foreign and military affairs, there are many areas where the courts grant the Executive a fair degree of latitude to act unilaterally within the Constitutional powers of the government where Congress has not acted to constrain the Executive.

The Congress doesn't have the authority to take away Executive powers it didn't grant in the first place.


OTOH, it does have the authority to take away executive powers that it has granted by its inaction as well as those that it grants by its action.

Re:Unconstitutional (1)

Opportunist (166417) | more than 7 years ago | (#19089981)

If Congress didn't grant the powers and the Executive still uses them, what does that constitute? Treason?

True... (0)

Anonymous Coward | more than 7 years ago | (#19090013)

But they might be able to cut their funding if they're caught doing it.

(Congress has the "power of the purse")

Thay have all been legal! (1)

Clockworkalien (1099495) | more than 7 years ago | (#19089369)

It's just the ILLEGAL wiretapping that they are outlawing. Those wiretaps in the past few years have all been legal. Bush says so.

Re:Thay have all been legal! (1)

Opportunist (166417) | more than 7 years ago | (#19090003)

Oh, he said many things that were prime grade bulldung.

Bill Bans NSA Eavesdropping (0)

Anonymous Coward | more than 7 years ago | (#19089403)

When asked for comment, Bill said: "Eavesdropping? That's the stupidest thing I've ever heard!"

Why do we need this? (2, Interesting)

psoriac (81188) | more than 7 years ago | (#19089411)

Can someone more legally/politically savvy than myself explain why we need laws/bills passed to prevent the breaking of existing laws/bills?

Simple... (3, Insightful)

Joce640k (829181) | more than 7 years ago | (#19089753)

The US government is "at war", so they have special dispensation to break laws whenever they think "national security" is as risk.

The fact that the USA is always at war and that pretty much anything seems to count as "national security" means that on an average day they've already broken several laws before breakfast.

This bill is Congress trying to put a stop to the farce. The only fly in the ointment is that no law is final until the president signs it, and he's the one abusing the law. Is he really going to sign away his own powers? Based on his track record ("Patriot act", etc.) I doubt it.

Re:Why do we need this? (1)

ArsonSmith (13997) | more than 7 years ago | (#19089789)

Well, you see, Government has gotten so big and intrusive that they are having a hard time thinking of new ways to make something illegal. This is simiilar to all the remakes in movies these days. I expect to see this done a lot more in the government. Perhaps we should make a new law outlawing the illegal activity of murder and theft as well. You know, just to be sure.

We already have a law (3, Interesting)

Anonymous Coward | more than 7 years ago | (#19089437)

It is called the "Constitution." Unfortunately the presidents of the last century and this century have treated the Constitution like a worthless piece of paper. They have performed wire-tapping or something similar. That is what people get when they ask for things they want that are unconstitutional.

The only way to fix this is to vote straight Libertarian as the Republicrats or Democans are so adamant at keeping control rather than adhering to the Constitution.
_________________________________________
A vote against a Libertarian candidate is
a vote to abolish the Constitution itself.
Please visit the Pal-Item Forums at forums.pal-item.com [pal-item.com]

dumb (2, Insightful)

guspasho (941623) | more than 7 years ago | (#19089491)

Everyone else already pointed out why this is stupid: it's already illegal, and the President who has been breaking the law aready will have to sign it, and even if passed there is no indication this will carry any more force than FISA. It's a law just like FISA. If the President has been violating FISA openly why wouldn't he violate this law just as openly? Courts are only going to be moderately helpful. There's a large chance they will acquiesce to Bush's claims of national security - therefore any such cases cannot be tried. Plus, he had 6 years to install his own appointees that will probably agree with him, including two Supreme Court Justices. What we really need is an impeachment trial.

Yeah, that'll stop 'em... (0)

Anonymous Coward | more than 7 years ago | (#19089501)

Now that it's illegaler, why, they wouldn't dare! Oh wait.

And yes, illegaler is a perfectly cromulent word.

Apologies to Jack Sheldon and SchoolHouse Rock (4, Funny)

VorlonFog (948943) | more than 7 years ago | (#19089541)

I'm just a bill.
Yes, I'm only a bill.
And I'm sitting here on Capitol Hill.
Well, it's a long, long journey
To the capital city.
It's a long, long wait
While I'm sitting in committee,
But I know I'll be a law some day
At least I hope and pray that I will
But today I am still just a bill.

Courtesy of http://www.jacksheldon.com/school.htm [jacksheldon.com]

Re:Apologies to Jack Sheldon and SchoolHouse Rock (2, Funny)

morgan_greywolf (835522) | more than 7 years ago | (#19089963)

You forgot part:

I'm just a bill
Yes, I'm only a bill
And if they vote for me on Capitol Hill
Well, then I'm off to the White House
Where I'll wait in a line
With a lot of other bills
For the president to sign
And if he signs me, then I'll be a law.
HOW I hope and pray that he will,
But today I am still just a bill.

Boy:

You mean even if the whole Congress says you should be a law, the president can still say no?
BILL:

Yes, that's called a veto. If the president vetoes me, I have to go back to Congress and they vote on me again, and by that time you're so old ...
  Boy:


Of course they haven't. (5, Informative)

Chris Burke (6130) | more than 7 years ago | (#19089553)

"the administration has not publicly provided Congress with a single example of how current FISA standards have either prevented the intelligence community from using new technologies, or proven unworkable for the agents tasked with following them."

They haven't provided it privately, either, and the reason is simple.

The FISA court is well-known as being basically a warrent rubber-stamping court. Out of thousands of requests sent in the last few years, only a handfull have been rejected, and most of those were accepted with changes suggested by the court. Since the court will issues warrants post-facto, even temporal urgency isn't an obstacle to getting a FISA warrant. Basically in any situation where the request is properly made and has any merit whatsoever the FISA court grants the warrant, it can be done retroactively, and there's pretty much no reason to skip the process. So why would the administration bypass the court in order to conduct a search?

Because the searches had so little merit that even FISA would not grant warrants.

So no, Bush's administration is not going to give an example of a situation where FISA got in the way of conducting legitimate security operations because no such case exists, it could only give examples of illegitimate ones and it isn't going to do that either.

This is a great start, though I hesitate to support the inherent thinking behind it -- which is, the President has the power to do whatever the fuck he wants until Congress specifically steps in and removes one of these infinitely many powers. But that's okay, we have to do something to at least make it explicit that when the President breaks the law, that means it was illegal, not that the Pres can put the pieces back together however he chooses. And I hope they continue to pass laws constraining government power, increasing oversight, and that they do this right up to the point where one of them gets in office and realizes they are subject to those same laws.

Re:Of course they haven't. (3, Insightful)

AoT (107216) | more than 7 years ago | (#19089855)

You know what worries me most about this, is that unless there is a direct confrontation between one of the other branches and the president before Bush leaves office then it leaves these questions unanswered. It scares me to think what an actually competent president would do with these powers.

We should support wiretapping. (0, Funny)

Anonymous Coward | more than 7 years ago | (#19089557)

I support the president's wiretapping legal or illegal. (Be careful what you post, I think he's monitoring us here too.)

What does it do, again? (2, Informative)

DragonWriter (970822) | more than 7 years ago | (#19089631)

The US house of representatives today passed a bill outlawing illegal domestic wiretapping by the government. Now government agencies are only allowed to access your private communications under terms of FISA.


It's already criminal for government to access those outside of the provisions of FISA, that's, actually, the entire point of FISA. That it was already outlawed should be obvious from the fact that it is "illegal wiretapping". The description presented here and in TFA, if perhaps not the law itself, is clearly redundant.

The link to the actual amendment in TFA seems to be broken, and while I can find references to the amendment (H.AMDT.182 to H.R.2082) I can't find the text of either the amendment or the amended bill (the amendment passed after the latest text I can find, the May 7 version of the bill.)

So I'm not sure what this new bill does in this regard if anything, whether it is just a clarification, or whether it creates some new enforcement mechanism that provides a remedy when the executive isn't interested in prosecuting themselves for the crime of violating FISA.

Realize (1)

dlhm (739554) | more than 7 years ago | (#19089655)

I hope the Democrats realize this is not only blocking President Bush, it will also block future President Hillary or Barack too. But then again they probably won't want to spy on international phone calls, after all Dems don't believe in "A Global War on Terror". Just like most Republicans don't believe in "Man-Made-Global Warming" They can just use the FBI to spy on domestic calls that the RIAA say you might be transferring music over, or may have the capability to tranfers music over.

Congress means business! (0)

Anonymous Coward | more than 7 years ago | (#19089717)

Now that Congress has outlawed this illegal activity the administration will have to stop. Congress has shown they mean business. And if this isn't enough, you can bet Congress will pass another bill to outlaw the outlawed illegal law-breaking.

Or the bad parenting version: "Stop breaking the law. We really mean it this time! Stop that. Don't make me say it again. I'll tell you to stop again if I have to. You're not stopping. I told you to stop. Stop that. Stop. Stop! Oh that's it. I'm so passing another bill to make this illegal."

carnivore (1)

BagMan2 (112243) | more than 7 years ago | (#19089741)

Isn't it obvious that what the administration really wants is to use the carnivore system on domestic calls, or at a minimum between domestic and foreign locations. Obviously you can't get a warrant for that as there is no intended target. I personally think such a system should be allowed but only allowed to be used to hunt terrorists and that none of the information gathered can ever be used in a court of law against them.

I can see the signing statement now... (0)

Anonymous Coward | more than 7 years ago | (#19089805)

The president reserves the right to interpret (ignore) this law in the context of his statuary powers. Suck it.

Bush Will Ignore It (5, Informative)

Doc Ruby (173196) | more than 7 years ago | (#19089859)

The FISA itself already makes NSA wiretapping illegal in ways Bush personally ordered for years, as he's admitted. Last year a federal judge found that the NSA had violated the law [cnn.com] (and the Constitution), and thereby that Bush had violated the law, in Bush's admitted offenses. The FISA makes it illegal for Bush to ignore the FISA court when wiretapping, and Bush has insisted he will continue to do just that.

Although Bush did lie about stopping his crimes when this issue first blew up in the news, last week he said he'd continue [wired.com] .

FISA was created after Congress (and America) learned about some of the extent to which Nixon had abused his power to spy on Americans without cause or Constitutional process. It has been amended over a dozen times since, to keep pace with changing technology and suspects. But Bush will ignore it all, because he's used to the Republican Congress Nixon lacked to perpetuate his tyrannies.

Bush is a committed criminal. Congress must impeach him immediately. While we still can.

Yay for Dems ! (1)

unity100 (970058) | more than 7 years ago | (#19089875)

Is it ? Is this something like this ? i mean, senate and congress turns democrat and this bill, contrary to what kind of bills have been passing since 2000, appears ?

Outlawing Illegal Things... (1)

morari (1080535) | more than 7 years ago | (#19090011)

Brilliant!
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