Okay, a little constitutional...

[Yonivore]

...lesson is in order.



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.

Ureasonable is the operative word. Those ready to claim it is unreasonable to eavesdrop on persons with established connections to al Qaeda secretly, please step forward.

The allegation of Presidential law-breaking rests solely on the fact that President Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.

The courts have been explicit on this point. let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:


The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."
*** "
"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.

[Peter]

Then where is the limit on presidential power? What if GWB opts to use Echelon on political opponents? FISA gives the president the right to get a warrant after the fact. What's the matter with that?

[Yonivore]

Then where is the limit on presidential power? What if GWB opts to use Echelon on political opponents?
I believe that wouldn't pass the "reasonable" standard of the fourth amendment.
FISA gives the president the right to get a warrant after the fact. What's the matter with that?
FISA has serious issues with relationship to disclosure. Now, apparently, so does the NSA.

[Peter]

Then where is the check on his power? If he doesn't have to go to court and is free to wiretap whoever he wants, what's to stop him from ordering wiretaps on non-legit targets?

Also, what communications are allowed to be intercepted and used? Only those coming in from or going outside of the country? What about internal communications between suspected terrorists/sympathizers?

[Oh, Gee!!]

yes, the prez absolutely has the authority to circumvent court approval on a wire tap for nat'l security purposes in the case of an emergency. He can avoid waiting for court approval on a wiretap in the case of, for example, the proverbial ticking time bomb in the subway station. However, the prez has not shown nor has he alleged that his illegal use of wiretaps has prevented such a disaster. He was basically just listening to conversations because he wanted to. He could have sought court approval but didn't because he knew no court would allow his requests based on the sketchy facts that he could provide at the time.

[Oh, Gee!!]

and you should stop giving "lessons" unless you know wtf you're talking about

[cherylsteele]

If you have nothing to hide....then you should have no trouble with wire taps or surveillence.

We are at war...this is neccesary.

[Duff McCartney]

We are at war...this is neccesary.

I've never met a person from Iraq, much less have a problem with anyone form there. No one from Iraq has ever done anything to me. I'm not at war with anyone.

[FromWayDowntown]

If you have nothing to hide....then you should have no trouble with wire taps or surveillence.

We are at war...this is neccesary.

See, I have a problem with that. We may be at war, but the rationalization for using these wiretaps is that it "makes it easier" for the government to recognize threats. But that something makes it "easier" or might go a bit further to protect security doesn't make it constitutional, which should be the overriding concern that places us at war in the first place. War shouldn't mean that constitutional rights are disregarded. Wiretaps and the like have been deemed to be unreasonable intrusive; accordingly, the government is required to obtain a warrant to tap anyone's phone. There are exceptions to constitutional requirements at borders -- for people entering the country through airports for example -- but the notion that the President could unilaterally choose to engage wiretaps of United States citizens carrying on business in the United States and wholly ignore the warrant requirement is beyond ludicrous to me.

I don't see how this precedent does anything other than expand Presidential powers under the guise of promoting national security.

[Peter]

See, I have a problem with that. We may be at war, but the rationalization for using these wiretaps is that it "makes it easier" for the government to recognize threats. But that something makes it "easier" or might go a bit further to protect security doesn't make it constitutional, which should be the overriding concern that places us at war in the first place. War shouldn't mean that constitutional rights are disregarded. Wiretaps and the like have been deemed to be unreasonable intrusive; accordingly, the government is required to obtain a warrant to tap anyone's phone. There are exceptions to constitutional requirements at borders -- for people entering the country through airports for example -- but the notion that the President could unilaterally choose to engage wiretaps of United States citizens carrying on business in the United States and wholly ignore the warrant requirement is beyond ludicrous to me.

I don't see how this precedent does anything other than expand Presidential powers under the guise of promoting national security.


What about the 'border search' argument for wiretapping international communications from/to US citizens inside the country?

[FromWayDowntown]

What about the 'border search' argument for wiretapping international communications from/to US citizens inside the country?

I'm not entirely sure that I understand your question -- if you're talking about the notion of analogizing international communications with persons or items entering the country, I think that's likely the President's best legal argument to support the program. Commentary on this is rampant across the net right now, and I've read a couple of lengthy pieces from law professors and Supreme Court practitioners who believe that the only possible way to justify the program legally (given existing precedent) is by suggesting either that: (1) this is, in essence, a border search; or (2) there is an inherent exception to the 4th Amendment when it comes to matters of foreign intelligence.

{I will readily admit that I'm not as current on 4th Amendment jurisprudence as I should be. I'll also admit that I don't have the time or the inclination at the moment to delve extensively into the nuances of juxtaposing Presidential power against the 4th Amendment. Accordingly, I'm relying on the commentators as my source.

Here are links to three of my sources: Volokh Conspiracy -- Orin Kerr (http://volokh.com/archives/archive_2005_12_18-2005_12_24.shtml#1135029722); Concurring Opinions -- Daniel Solove (http://www.concurringopinions.com/archives/2005/12/beyond_his_powe.html); and Balkinization -- Marty Lederman here (http://balkin.blogspot.com/#113510707770121260) and here (http://balkin.blogspot.com/#113503032894841746)}

Of those two options, it appears that this round of wiretapping could be squeezed into the analogy of a border search. But curiously, it also appears that the White House has eschewed that argument, contending instead that the wiretaps are valid under FISA, the 2001 Authorization to Use Military Force, or the President's inherent powers pursuant to Article II of the Constitution.

The commentators find significant flaws with each of those arguments -- flaws significant enough to find neither argument persuasive as a means for circumventing the default rule set out in the 4th Amendment. I can't disagree with those positions because they make sense to me in a constitutional sense -- that is, if you believe in the primacy of the Constitution and that anything that nominally runs afoul of the Constitution must be justified by an exception somewhere. The idea that the AUMF can be used as a proxy for warantless surveillance is largely untenable given the existing constructions of that Act -- constructions for which the White House has previously argued.

It seems quite clear to me that the wiretapping in question violates FISA (Foreign Intelligence Surveillance Act) because, in simple terms, that Act provides for express exceptions to the 4th Amendment and this situation is not among them.

That leaves only a Constitutional exception to the 4th Amendment, but again, the Administration hasn't made that argument.

[Yonivore]

Then where is the check on his power? If he doesn't have to go to court and is free to wiretap whoever he wants, what's to stop him from ordering wiretaps on non-legit targets?
Well, if it leaks ... as this has, and would probably be more likely to if he were using his executive power to eavesdrop for other than national security reasons, I'd say he'd be impeached.

By the way, no one has claimed he is "free to wiretap whoever he wants." He is free, some would say obligated, to do everything in his power to protect the United States of America from foreign and domestic threats. The courts have held that in the case of foreign threats, warrantless searches are allowed. That's been the case since before FISA and FISA didn't abbrogate that authority.


Also, what communications are allowed to be intercepted and used? Only those coming in from or going outside of the country? What about internal communications between suspected terrorists/sympathizers?
Well, the opinions only speak to foreign intelligence -- I haven't seen that defined. But, I would imagine if a foreign agent were on American soil talking on a foreign cell phone, he'd be free game.

It is this type of communication the NYTimes claims were the "entirely domestic" cases of wiretapping. There is no claim by the traitors that leaked this information to the New York Times that the administration was eavesdropping on domestic communications from one domestic device to another domestic device.

[mookie2001]

yet another neocon arguing against the constitution

how do yall do it and sleep and at night?

[Yonivore]

...the prez has not shown nor has he alleged that his illegal use of wiretaps has prevented such a disaster.
Actually, the administration is claiming that two terrorists attacks were averted due to intelligence gained from this program.

One domestically and one in Great Britain.

Further, the President has no obligation to explain this to the American People. Let Congress hold hearings if they're so exercised about it.

Finally, I find it humorous that you infer this President is using this power to listen in on random people...as if it is actually HIM that is doing the wiretapping. You're funny.

[Yonivore]

yet another neocon arguing against the constitution

how do yall do it and sleep and at night?
Where am I arguing against the constitution?

In fact, I'm arguing in favor of the President's power under Article II of that document. And, if you're claiming a violation of the fourth amendment, you also claiming that warrantless searches in pursuit of terrorists that may be executing an attack is unreasonable.

Not many courts will agree with your standard of "reasonable."

[ChumpDumper]

Actually, the administration is claiming that two terrorists attacks were averted due to intelligence gained from this program.And it couldn't have been done under the conditions of FISA? Given the retroactive rubber-stamp nature of the Act, I find that difficult to believe.

[Oh, Gee!!]

Actually, the administration is claiming that two terrorists attacks were averted due to intelligence gained from this program.

One domestically and one in Great Britain.

Further, the President has no obligation to explain this to the American People. Let Congress hold hearings if they're so exercised about it.

Finally, I find it humorous that you infer this President is using this power to listen in on random people...as if it is actually HIM that is doing the wiretapping. You're funny.

The president can claim that his use of wiretaps averted terroristic after the fact and we would never know if he was being truthful. We need some evidence.

The president has no obligation to explain himself to the american people? You're crazy if you believe this. Allegedly, it was the American people that voted for him. He's not a king.

And, yes, I really think that Bush was sitting in some van listening in on converstaions. And, yes, I believe that the president himself installed the wiretap. Doesn't matter if he physically listened to the convos or installed the devices, he wanted them, he authorized them, and he is ultimately responsible for the actions of his administration.

[Peter]

I'm not entirely sure that I understand your question -- if you're talking about the notion of analogizing international communications with persons or items entering the country, I think that's likely the President's best legal argument to support the program. Commentary on this is rampant across the net right now, and I've read a couple of lengthy pieces from law professors and Supreme Court practitioners who believe that the only possible way to justify the program legally (given existing precedent) is by suggesting either that: (1) this is, in essence, a border search; or (2) there is an inherent exception to the 4th Amendment when it comes to matters of foreign intelligence.

That's exactly what I am referring to.

[Peter]

Well, if it leaks ... as this has, and would probably be more likely to if he were using his executive power to eavesdrop for other than national security reasons, I'd say he'd be impeached.

By the way, no one has claimed he is "free to wiretap whoever he wants." He is free, some would say obligated, to do everything in his power to protect the United States of America from foreign and domestic threats. The courts have held that in the case of foreign threats, warrantless searches are allowed. That's been the case since before FISA and FISA didn't abbrogate that authority.


Where's the check then? Why can't he go to the FISA court and get the ex post facto warrant? Can't the FBI monitor the judges and staff of the court to ensure optimal secrecy?



Well, the opinions only speak to foreign intelligence -- I haven't seen that defined. But, I would imagine if a foreign agent were on American soil talking on a foreign cell phone, he'd be free game.

It is this type of communication the NYTimes claims were the "entirely domestic" cases of wiretapping. There is no claim by the traitors that leaked this information to the New York Times that the administration was eavesdropping on domestic communications from one domestic device to another domestic device.

Well, the claim is that the NSA was eavesdropping on US citizens without a warrant.

[FromWayDowntown]

That's exactly what I am referring to.

It appears to be the only route to avoiding Constitutional infirmity, but the Administration has chosen to make other arguments thus far.

I think the comments cited in my earlier post are interesting (obviously) and give some insight about how decisional and statutory law is a difficult hurdle for the President to overcome in this situation. I commend them to anyone who has an hour to kill and wants to take a long look at the issue from a purely legal standpoint.

[Peter]

It appears to be the only route to avoiding Constitutional infirmity, but the Administration has chosen to make other arguments thus far.

I think the comments cited in my earlier post are interesting (obviously) and give some insight about how decisional and statutory law is a difficult hurdle for the President to overcome in this situation. I commend them to anyone who has an hour to kill and wants to take a long look at the issue from a purely legal standpoint.


I think the authorization for the use of force and the 'general presidential power inherent in the Constitution' arguments strike this non-attorney as constitutionally, well, lame. The border search argument seems to hold some merit.

[FromWayDowntown]

Where am I arguing against the constitution?

In fact, I'm arguing in favor of the President's power under Article II of that document. And, if you're claiming a violation of the fourth amendment, you also claiming that warrantless searches in pursuit of terrorists that may be executing an attack is unreasonable.

Not many courts will agree with your standard of "reasonable."

The Constitution doesn't really differentiate its protections by the status of the person sought to be protected -- at least not in 4th Amendment, pre-arrest terms. If there are Constitutional bases to conduct warrantless searches, like evident exigent circumstances or criminal activity happening in plain view, there is no Constitutional problem with the government undertaking an immediate search without a warrant. FISA seems to take into account the specific issues with the exigent circumstance of terrorists, but it still requires an application for a warrant at some point.

If we more concerned with allowing the President to unilaterally decide whether he should or should not authorize any particular wiretap, without a Constitutional exception and without the need to go to a court in the absence of an exception, then we're pretty content with the slow erosion of a free society into a police state with an executive who may eavesdrop on whomever he wishes so long as he can portray that person as being a threat in even some amorphous sense. If you're willing to accept that, it seems that you must see the Constitution as nothing other than a document that should be applied on a case-by-case basis.

[FromWayDowntown]

I think the authorization for the use of force and the 'general presidential power inherent in the Constitution' arguments strike this non-attorney as constitutionally, well, lame. The border search argument seems to hold some merit.

I agree, and of those, the Article II argument is the lamest. The Article II argument suggests that the President as Commander-in-Chief is above Congressional law making and not burdened by anything other than his own conscience and sense of what is reasonable. Neither the Constitution or existing statutory law would provide any impediment to the Presidential exercise of this power in any circumstance, really.

The AUMF argument strikes me as facile.

I also don't get this ends-justify-the-means approach to Constitutional concerns -- by that rationale (taken to an extreme, no doubt, but a logical end that the rationale would support) if you could stamp out domestic terrorist threats by invading every home, apartment, and place of business in the country in an effort to find evidence of terrorist activity, you could justify the Constitutional invasions that would result. The Constitutional concerns would be, I guess, swallowed up by the result of safety, which would be paramount.

[Peter]

What is the burden when you can go to the FISA court (FISC) after the fact? That's what I am not getting. As I understand it, there are a number of precautions in place for optimal secrecy and whoever is targeted has no right to notification and representation. There's only been 4 instances of the court refusing to grant a warrant in its history.

[Oh, Gee!!]

What is the burden when you can go to the FISA court (FISC) after the fact? That's what I am not getting. As I understand it, there are a number of precautions in place for optimal secrecy and whoever is targeted has no right to notification and representation. There's only been 4 instances of the court refusing to grant a warrant in its history.

It means that Bushie couldn't even articulate enough facts to overcome the relatively low probable cause threshold. So he said fuck it. HE can always manufacture probable cause after the fact--if anyone finds out. Ooops, somebody did. Now, Dubya's getting all indignant that anyone could possibly question his authority as King.

[Peter]

http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.story?coll=chi-newsopinioncommentary-hed

President had legal authority to OK taps

By John Schmidt
Published December 21, 2005

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

The administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks. The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action.

But even if the NSA activity is "electronic surveillance" and the Sept. 11 resolution is not "statutory authorization" within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, "encroach upon the president's constitutional power."

FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.

Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

----------

John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States. He is now a partner in the Chicago-based law firm of Mayer, Brown, Rowe & Maw.


Copyright © 2005, Chicago Tribune

[Yonivore]

Can't the FBI monitor the judges and staff of the court to ensure optimal secrecy?
Would they do this with or without warrants?

[Nbadan]

FBI Acknowledges Spying on American Citizens and Domestic Organizations


The New York Times yesterday revealed that the Bush Administration has been abusing its authority to spy on domestic organizations. According to the New York Times, among the groups being monitored by FBI agents were a Catholic Workers group that promotes antipoverty efforts and social causes, a meeting of Quakers, and PETA. A top FBI official reportedly justified spying on these groups by saying that environmental and animal rights groups, not Al Qaida, "posed the biggest terrorist threats in the United States." (New York Times, 12/20/05)

US Newswire (http://releases.usnewswire.com/GetRelease.asp?id=58538)

[Nbadan]

FISA Judge Quits in Protest

http://img.photobucket.com/albums/v86/slc987/judge.jpg
Judge James Robertson is leaving the U.S. district court. (Beverly Rezneck)


A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John D. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.

Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.

Robertson, who was appointed to the federal bench in Washington by President Bill Clinton in 1994 and was later selected by then-Chief Justice William H. Rehnquist to serve on the FISA court, declined to comment when reached at his office late yesterday.

Washington Post (http://www.washingtonpost.com/wp-dyn/content/article/20...
)

[Nbadan]

It means that Bushie couldn't even articulate enough facts to overcome the relatively low probable cause threshold. So he said fuck it. HE can always manufacture probable cause after the fact--if anyone finds out. Ooops, somebody did. Now, Dubya's getting all indignant that anyone could possibly question his authority as King.

Interesting comment posted on the JABB blog (http://jabbs.blogspot.com/2005/12/conservatives-spin-that-bush.html) about this...


In the case of national emergencies, it's permitted to get a search warrant 72 hours after surveillance is conducted. (In the link, see Section F, Item 2.) The argument for speed doesn't make much sense when warrants can be issued after the surveillance operations have taken place.

David Sirota, writing yesterday on the Huffington Post website, wondered aloud about this spin: "There really is only one explanation that a sane, rational person could come up with: The surveillance operations Bush is ordering are so outrageous, so unrelated to the War on Terror and such an unconstitutional breach of authority that he knows that even a court that has rejected just 4 warrant requests in 25 years will reject what he's doing."

Merging Sirota comments with York's, one would have to assume that a Homeland Security team wouldn't be able to quickly put together the paperwork to gain a retroactive warrant from a lax court. It's a hard sell.

***

If the "arduous paperwork" defense sounds familiar, it's because the Bush Administration used it just a few weeks ago.

According to an Oct. 30 Associated Press report, the administration often has failed to meet homeland security deadlines. Why? The official spin at the time was that there are too many deadlines.

Homeland Security spokesman Russ Knocke told the AP that the department goes to great lengths to work with Congress. But, he said, "there is an extraordinarily high number of reporting requirements." The department has to submit 256 reports to Congress every year, Knocke said.

***

How do you get around arduous paperwork? Change the rules.

With control of the presidency and both houses of Congress, Bush could have changed the FISA rules in 2001, when Congress overwhelming supported the USA Patriot Act.

Similarly, rules regarding the number of reports Homeland Security has to file could have been dealt with when the department was created, again with overwhelming Congressional support, in 2002.

But neither of those things happened. Circumventing the rules now, after the fact, isn't the answer.