FISA and the Imperial Judiciary

What if a data packet could be purposely sent through the U.S. networks? What if Joe Blow in California and Joe Dunno in New York were having a conversation via cell phone or some other wireless communication device? What if the recent legislation passed before the kids in DC went on summer recess hadn’t been passed at all?

For one The NY Times editors and perhaps the FISA would be pleased with this turn of events, as the editors this morning made clear they don’t care for the president viewing his role in intelligence gathering as constitutional. FISA might be happy as a recent ruling protected foreign to foreign communications; so Mahmoud and Mustapha in Pakistan or elsewhere would be protected in their communications with each other while planning an attack in the U.S., unless of course as proscribed by the FISA court, a warrant were obtained.

If you read or have read Andrew C. McCarthy today at NRO you might wonder where exactly the Times and other Leftists get their constitutional knowledge in swatting at the presidents role?

All the hubbub and brouhaha made by the Times editors doesn’t change the facts, but it does change the “facts” as they possess the power of the presses and inappropriately influence public opinion and knowledge many times. This is most noticeable when you have read McCarthy and his mentions of the Times and Leftists in their hue and cry over NSA wiretaps as he points out that the concern should be with the FISA court and not the president:

“We should be equally affronted by the hypocrisy of congressional Democrats and the leftwing commentariat. It’s not national security or the “rule of law” they care about. It’s politics — plain, simple, and brass-knuckled. The calculation: If George W. Bush can be hurt a polling point or two (yes, there’s still room to go down) by posturing over law-breaking, it’s okay to roll the dice with our lives.”

“For nearly two years since the New York Times blew the NSA’s warrantless-surveillance program, the Left has transfigured itself into a whirling dervish of indignation over President Bush’s imperious trampling of “the rule of law.” Why? Because he failed to comply with the letter of FISA, which purports in certain instances to require the chief executive — the only elected official in the United States responsible for protecting our nation from foreign threats — to seek permission from a federal judge before monitoring international enemy communications into or out of the United States.”

Of the recent ruling by the FISA court regarding foreign to foreign communications, McCarthy points to the four types of communications FISA regulates:

“(a) those involving a particular, known American citizen or permanent resident alien who is in the United States and has intentionally been targeted for monitoring, no matter whether the interception takes place inside or outside the United States;

(b) those involving someone inside the United States, even if that person has not been intentionally targeted, if the interception occurs within the United States;

(c) those in which all parties to the communication are located within the United States; and

(d) those rare contacts which are neither radio nor wire communications, “in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.”

Note as Mr. McCarthy points out that none of the above fit within the foreign to foreign communications. For the moment we can rest a little, but as McCarthy suggests that until FISA is ended and replaced with something more appropriate to our times; the imperials of the court will ultimately be the ones protecting us…

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Martyrs, Jihadists Are NOT the Brightest Bulbs on the Porch

Interesting reads today from NRO from three very good writers. The overall impression put forward by the media has been that these latest attacks by terrorists are not really al Qaeda linked because the skillset of the "would bes" lacks a certain proficiency or professionalism; this of course is due to the fact the intended outcome failed.

We wouldn't want to discount their abilities obviously by suggesting they cannot succeed again. Yet when they have not had a successful attack, in the U.S. especially the public and media tends to discount that as though there were no threat. When they fail, the failures are looked upon as lacking that 007 aspect, so of course these cannot be real terrorists, al Qaeda or not.

While the main thrust of these articles, with the exception of Ledeen's may not be on the subject of "IQ" the reader does get the underlying sense that the terrorists/suicide bombers/martyrs aren't all that quick on the uptake.

Michael Ledeen takes the question of "smarts" as main thesis in his article this morning, ‘“Stupid Terrorist” Is it any surprise?”’

"Did you really expect high-I.Q. martyrs? Maybe clever killers, but somebody should have pointed out — long since — that it isn’t very smart to blow yourself up. And for the most part, the martyrs haven’t come from the best-educated sectors of the population. But so many scribblers have been impressed by the deep faith of the suiciders, that they’ve shied away from this fairly obvious point. And one could go further. Indeed one should go further: All those parents and siblings who speak with reverence of their exploded child or brother or sister or cousin or uncle, they should be ashamed of themselves. Because they’re fools."

Andrew McCarthy speaks this morning that “Islamic Terror Strikes the U.K. … Again” so ultimately does it really matter whether al Qaeda, an off-shoot or even unrelated as far as the underlying belief system?

"Britain’s new prime minister, Gordon Brown, has been explicit in his public statements that this new series of attacks is linked to al Qaeda. The nature of that linkage is has not been revealed, and many experts have expressed skepticism about the possibility because the explosive devices here were poorly constructed. This, though, gives way too much credit to al Qaeda. Yes, several of its operations have been highly professional, but its operatives are not all ten feet tall and they have produced their share of amateur-hour moments."

Finally, James Robbins considers that it is not all about Iraq, with "Club Bombers - Jihad runs deep"

"There are several lessons to be learned from the failed terrorist attacks in Britain. Some are obvious, such as the fact that the terrorists are still a threat, the war is still on. Also that the terrorists are seeking softer targets, which speaks to the effectiveness of hardening others. The Glasgow airport attack in particular illustrates this — despairing of actually getting on an airplane, the bad guys just rammed the gate with a Jeep Cherokee with a bomb in the back. It was not a well-planned or thought-out attack; the vehicle was hung up on the static defenses, which worked as intended. And did one of the perps really as was reported pour gasoline directly on an open flame? No wonder he ignited. These are not superstars."

It shouldn't take much of a stretch for those that either don't see it or refuse to believe it, that this problem we have is not just about Iraq, but is all around us. We shouldn't wait forever for that smoking gun, as even a smoking gun can be denied as being a smoking gun.

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Times as National Disgrace, Not Gitmo

The Times Editorial Board calls it “Gitmo: A National Disgrace” and has, as usual a real humdinger of an opening:

“Ever since President Bush rammed the Military Commissions Act of 2006 through Congress to lend a pretense of legality to his detention camp at Guantánamo Bay, Cuba, we have urged Congress to amend the law to restore basic human rights and judicial process. Rulings by military judges this week suggest that the special detention system is so fundamentally corrupt that the only solution is to tear it down and start again.”

Ever since President Bush rammed the Military Commissions Act of 2006 through Congress The NY Times and other outlets of the msm have been ramming their opinions down our throats, whether this was through “news” articles or opinion pieces mattered not.

For some unknown reason the msm considers itself above it all as though it delivers the news with no bias; most, if not everyone would disagree (although there would be much disagreement as to what side it leans). Some of the news can be described as biased and/or sloppy; in spite of this the editorial board at The Toilet Paper pontificates without doubt that their opinion is the correct opinion.

On Monday, “two military judges dismissed charges Monday against a Guantanamo detainee accused of chauffeuring Osama bin Laden and another who allegedly killed a U.S. soldier in Afghanistan.;” Salim Ahmed Hamdan and Omar Khadr.

Toss it all out and rewrite it all is the basic idea that “would allow Americans to once again hold their heads high when it comes to justice and human rights,” according to The Times. Trapped in a mindset that is fit for an alternate universe, rather than an ever changing situation; everything is simply a George W. Hitler effort at curtailing rights. The entire argument held is in line with a 9/10/01, Hamas, Fatah (separate and very worthy links) and all the other fanatics mean Israel no harm, nukes in Iran is only fair mindset.

Andrew McCarthy at NRO displays if nothing else (and I think it’s a lot more) an analytical grip on the reality of the situation that none of news outlets will ever come close to. Read his article for the full treatment, but in summary (in my poor fashion):

“It is elementary that a court, including a military court, is not competent to entertain a case unless it has jurisdiction. This simply means that the conditions set by congress for the court’s intervention must be met. In this instance, jurisdiction for military commissions is now controlled by the Military Commissions Act (MCA), signed into law by President Bush at the end of 2006”

“Under the MCA, only “[a]lien unlawful enemy combatants, as defined in section 948a of this title, shall be subject to trial by military commissions[.]” So, the question arises, how does section 948a define alien unlawful enemy combatants (AUECs)?”

“the crucial inquiry with a combatant is whether he is properly categorized as unlawful, as the MCA requires.”

“The military’s CSRT procedures are set forth in a memorandum issued by the Deputy Secretary of Defense, which is available on the Defense Department’s website. (See here, last updated May 21, 2007.) The memo was issued on July 14, 2006. Note that that is five months before the MCA. It would be a fair criticism to argue that once the MCA was enacted, the Pentagon’s legal staff should have gone carefully over the memo to ensure symmetry between the MCA’s requirements for military commission jurisdiction and the CSRT findings that would be used to satisfy those requirements. Still, to give the Defense Department its due, it would have been reasonable — notwithstanding Monday’s ruling — to conclude that the CSRT procedures were adequate to the task.”

“The basic problem is some loose language. The CSRT procedures, in shorthand fashion, speak of determining whether a detainee is an enemy combatant, not an unlawful enemy combatant as the MCA requires.”

Where The Times and McCarthy may agree to a point is the need to create a system appropriate to determining the status of combatants; this is point where The Times Editors would be satisfied (not very deep of them is it?), but McCarthy takes it further, as it should be taken.

The Times and others with their proclivity to see things through only their reality, McCarthy says:

“We ought to design a new national-security court, an amalgam of the military and civilian systems, to deal comprehensively with the war’s novel challenges: investigations, detentions, and trials in a war whose end is not only indeterminate but — unlike prior wars — difficult to imagine; a war which involves alleged terrorist operatives whose status will often be ambiguous (because they don’t wear uniforms) but who cannot be given the presumptions that favor ordinary criminal defendants (since it would reward and thus perilously encourage their flouting of the laws of war). That new system should employ civilian judges, who have great expertise in moving terrorism cases and are independent of the executive branch — something important to our allies, whose cooperation is vital if we are to prevail against our enemies. But to combat the proclivity of civilian judges to push the due process envelope, the proceedings should be predominantly military and hew to rules exactingly prescribed by Congress.”

The editors’ opinion for the fix would be in following with bills “sponsored by two California Democrats” (surprise):

“close Gitmo in a year and the detainees would be screened by real courts. Those who are truly illegal combatants would be sent to military or civilian jails in the United States, to be tried under time-tested American rules of justice, or sent to an international tribunal. Some would be returned to their native lands for trial, if warranted. The rest would be set free, as they should have been long ago.”

The Times and msm in general cannot take the time to fully consider a subject prior to forming an opinion meant to sway opinions. Why they or we would consider their words or opinions in words the arguments end is beyond me.

Andrew McCarthy offers an appropriate word of caution to his argument (something The Times would never consider):

“Saying the prosecution’s position should be sustained here is a good distance from saying that, as a matter of policy, the military commission system is the best way to deal with detainees. The war on terror presents unusual issues — issues that can’t be neatly pigeonholed into either the military or civilian court model.”

The Times closes with its own colorful, conspiracy theory filled, the sky is falling take:

“The Guantánamo camp was created on a myth — that the American judicial system could not handle prisoners of “the war against terror.” It was built on a lie — that the hundreds of detainees at Gitmo are all dangerous terrorists. And it was organized around a fiction — that Mr. Bush had the power to create this rogue system in the first place.”

Bottom line is that it is not as simple as we would have it and especially as The Times would have it.

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