[Shark&Nike]

Originally posted by chegitz guevara


No, it's quite clear the President broke the FISA law. He also broke the law which made the Geneva Conventions part of U.S. law, among others. That the President should have gone to FISA, where it's almost certain he would have gotten the warrants, is obvious. That he was required to, in light of Noriega and legal opinion, is a lot less obvious than it seems. As long as the message intercept (as distinguished from collection, processing and analysis)was conducted outside the US and its territories, and the communication was international, then it's not at all clear that FISA is mandatory.

The purpose of FISA was to allow for processing of classified warrants in espionage and other national security sensitive investigations which might lead to criminal charges - it was not to expand or contract intelligence gathering capabilities or alter the scope of activities which require judicial warrants.

Bush & co. made use of a loophole, or at least a lack of coverage by FISA, but it's not clear any specific statute was violated in doing so. If you can cite one, be my guest...

WRT the Geneva Convention, the US is a signatory, but show me a US law which incorporates the Geneva Convention Relative to the Treatment of Prisoners of War into US law?

The recent SCOTUS ruling on Gitmo prisoners doesn't invalidate military tribunals (or possible executions resulting from those tribunals) per se, only in the form that was planned by Rummy and friends. The other aspect of their status that was in question is whether Rummy's blanket determination that al Qaeda or Taleban prisoners were unlawful combatants met the "determination by a competent tribunal" requirement of the Convention, which clearly it does not.

Legally, all that's necessary is three officers to make an individual review of the circumstances of each prisoner's capture, and 80% of them could be tossed right back into the unlawful combatant heap. The whole process wouldn't take much longer or need to be much more involved than the military tribunals which tied Manfred Pernass and other Einheits Stielau prisoners to a post during the Ardennes offensive. That's the legal option, but not politically viable, as Gitmo is now a mouldering, festering, oozing albatross that no longer serves a purpose as cowboy bling. One way or another, there's no US statute which has been broken by the President, regardless of your views of the political and moral issues.

I think both issues were handled half-assedly by Bush. The surveillance, to the extent it went beyong SIGINT and TPA, should have been run through FISA to preserve any options for prosecution, but I don't see anything to make me believe that was legally necessary. (I did, at first, and found the activity and the laws in question just don't meet up)

With respect to Gitmo, most of the prisoners there are low level, and I would have set up tribunals from the outset consistent with the UCMJ and MCM, and half those people would probably have gotten either life sentences or their turn in front of a wall by now.