Mukasey says that war powers may allow for warrantless wiretaps

Mukasey says that war powers may allow for warrantless wiretaps

Summary: The love feast for attorney general nominee Michael B. Mukasey came to an abrupt halt Thursday, as the nominee suggested that the president's executive powers are pretty darn expansive, after all.

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The love feast for attorney general nominee Michael B. Mukasey came to an abrupt halt Thursday, as the nominee suggested that the president's executive powers are pretty darn expansive, after all.

Mukasey said that the president could ignore federal surveillance law if it infringes on his constitutional authority as commander in chief, The Washington Post reports. Mukasey said there may be occasions when the president's wartime powers would supersede legal requirements to obtain a warrant to conduct wiretaps.

In such a case, Mukasey said, "the president is not putting somebody above the law; the president is putting somebody within the law. . . . The president doesn't stand above the law. But the law emphatically includes the Constitution."

Sen. Patrick J. Leahy (D-Vt.), chairman of the Senate Judiciary Committee, said he was "troubled by your answer. I see a loophole big enough to drive a truck through."

Mukasey gave a stamp of approval, for example, to the administration's expansive view of executive privilege. He said it would be inappropriate for a U.S. attorney to press for contempt charges against a White House official protected by a claim of executive privilege.

Sen. Russell Feingold (D-Wis.), who had pressed Mukasey on the limits of federal surveillance law on Wednesday, complained Thursday that Mukasey had gone from being "agnostic" to holding a "disturbing view."

Mukasey also said he was against a federal shield for journalists. He said that the current system has worked "passably well" and that any problems could likely be solved by changes to internal Justice Department rules.

Topics: Government US, CXO, IT Employment

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11 comments
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  • First & Foremost

    has this incursion been a declared war or is it just an invasion? There is your answer. If its just an invasion then all the unlawful acts of wire tapping was done illegally!!!
    gdude@...
    • Great Point

      Illegal invasion and occupation...not a declared war!
      wmlundine
  • RE: Mukasey says that war powers may allow for warrantless wiretaps

    This issue was considered in 1866 in Ex parte Milligan. Executive branch generally not have job to INTERPRET the law, this is judicial branches power, responsibility and duty.
    Supreme Court held Executive branch has duty to execute not MAKE the law. Theory of NECESSITY is basis for war powers expansion, and is fallacious. Justice Davis said, "The Const of US is a law for rulers and people, equally in was and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was wever invented by the wit of man that that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false;" 71 us 2,at 121 (1866).
    Fun2as1@...
  • war

    If this is war then no one has any rights? So what rights are defended?
    Altotus
  • humm

    Are we talking about rule of law or rule by ruthless? Yes
    Altotus
  • Al-Qaeda respects your privacy?

    "The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact." (Justice Robert Jackson, 1949) Besides, isn't the issue not "wiretapping" in the old sense, but whether foreign terrorist messages pass through servers physically located in U.S. territory?
    MadSciGuy
  • Fun2as1 > david.lucas

    Justice Davis in 1866 recognized, but didn't explicitly state it, that while giving that kind of power to the President might solve a problem in the short term, it would prove a greater harm to the nation in the long run. Power, once bestowed, is devilishly hard to rescind. And there are far more ignorant, malevolent, and weak leaders that would abuse that power than there are benevolent and enlightened.

    Justice Robert Jackson in 1949 was wrong. And it's sounding like Mukasey isn't any different than Alberto Gonzales. He's just stain over old paint.
    Dr_Zinj
    • Question sidestepped

      The question remains, on what basis do we recognize a "right to privacy" of communications between Terrorist A in Foreign Country X, and Terrorist B in Foreign Country Y, when that communication traverses servers physically located in the U.S.? Is this, or is this not the technical issue? If so, why are we so concerned with the "privacy rights" of foreign terrorist actors whose goal is to destroy all our rights and impose their global caliphate?
      MadSciGuy
      • privacy rights

        We aren't interested in the privacy rights of the (suspected) terrorists. We are interested in the privacy rights of Americans that may be compromised as the government (allegedly) seeks information on the terrorists' communications.
        rkoman@...
  • What I don't get

    is that throughout this entire administration (and others), parts of the gov't keep saying things like "X may have this authority," or "such actions are not necessarily outside X's authority," &c. NAIL IT DOWN. I thought laws were written in a certain language so as to be narrowly construed. Either X has the power, or X does not. Figure it out or look it up. I think enough time has passed that this could have been done already.
    seanferd
    • Congress' intent

      It's a question of what was Congress' intent in passing the law. And did the agencies interpret it properly? Answering these questions - where for instance the agency doesnt want to regulate - is resolved by the courts as lawsuits are brought.
      rkoman@...