NSA Pop Quiz

[Yonivore]

When the people who built these tunnels (http://www.nytimes.com/2006/01/27/national/27tunnel.html?_r=1&n=Top%2fReference%2fTimes%20Topics%2fPeople%2fA%2f Archibold%2c%20Randal%20C%2e) call the people who forged those passports (http://news.yahoo.com/s/ap/20060127/ap_on_re_la_am_ca/colombia_passport_ring), will the left object if NSA listens without a warrant if one of them happens to be in the United States?

What say you?

[ChumpDumper]

Why can't they get a warrant?

Are they lazy?

[Oh, Gee!!]

Why can't they get a warrant?

Are they lazy?


They'd rather cast a wide net and hope they catch something. Can't get a warrant based on those facts--they're not lazy, just sneaky.

[Ocotillo]

those tunnels kind of defeat the purpose of building one of those walls that wingnuts like Tom Tancredo want doesn't it?

[Yonivore]

Why can't they get a warrant?

Are they lazy?
Why should they have to? They're not investigating a crime they're attempting to detect and disrupt an enemy attack.

[Oh, Gee!!]

Why should they have to? They're not investigating a crime they're attempting to detect and disrupt an enemy attack.

Didn't you realize that it was common for Mexicans to arm themselves and try to overthrow our gov't?

[Yonivore]

They'd rather cast a wide net and hope they catch something. Can't get a warrant based on those facts--they're not lazy, just sneaky.
This is a repitition of something I read in another thread. Where is your proof the NSA program "cast a wide net?" The Echelon Program, initiated by Clinton did that -- but, there's been no assertion (even by critics) that the NSA Program did so. All information provided, even by the traitorous leakers, says the NSA eavesdropped on specific communications between suspected al Qaeda (or terrorists) inside and outside the United States with others inside or outside the United States.

Please provide your source this was a "dragnet" operation.

[Yonivore]

those tunnels kind of defeat the purpose of building one of those walls that wingnuts like Tom Tancredo want doesn't it?
It's pretty simple thinking to believe that those who would do us harm would only exploit one weakness at a time.

So, no, it doesn't defeat the purpose. Put of the wall and detect and destroy the tunnels.

In my mind, that kind of defeats the terrorists...

[Oh, Gee!!]

says the NSA eavesdropped on specific communications between suspected al Qaeda (or terrorists) inside and outside the United States with others inside or outside the United States.

so they could have gotten a warrant. Way to fall into a trap

[Yonivore]

Didn't you realize that it was common for Mexicans to arm themselves and try to overthrow our gov't?
Didn't you realize Colombia is on the other side of Mexico and that the Mexican Government isn't known for it's strict enforcement of its own immigration laws?

[Oh, Gee!!]

Didn't you realize Colombia is on the other side of Mexico and that the Mexican Government isn't known for it's strict enforcement of its own immigration laws?


I always see revolutionaries and Middle Eastern types when I'm down in the RGV.

[FromWayDowntown]

Why should they have to? They're not investigating a crime they're attempting to detect and disrupt an enemy attack.

This is the crux of the situation. The declaration of war is rather broad in this instance, and so even run-of-the-mill crime could, when viewing that declaration broadly, be construed to be an act of war.

Ramzi Yousef's attack in 1993 was similar to the acts of 9/11, but was prosecuted as a crime and not dealt with as an act of war. Certainly, under that rationale, the plotting of an attack like Yousef's or like the 9/11 attacks would be a crime and susceptible to investigation by the same means that other crimes are investigated, including all of the Constitutional prerequistes for such an investigation (such as necessary warrants).

So, in the end, the answer to your "Why should they have to" question is "The Constitution." And the concerns for secrecy and other such nonsense are quite easily resolved by the nature of FISC proceedings. I don't see how the White House continues to believe that it can press an argument for the non-applicability of the Constitution to any situation that arises in the United States. That argument suggests to me a belief that the President is above the Constitution, which was obviously never the intention of the Framers.

[Yonivore]

so they could have gotten a warrant. Way to fall into a trap
Not necessarily.

The incidents that have been described is where a cell phone is recovered in a battle with al Qaeda, in Afghanistan or Iraq, and before those with whom the either dead or captured owner communicates realize the phone is in U.S. hands, they tap every number that has either called to or been called by that phone.

The value of the information, contained on the phone, is extremely perishable and usually becomes worthless as soon as it is learned the communications device has been compromised.

[Oh, Gee!!]

Not necessarily.

The incidents that have been described is where a cell phone is recovered in a battle with al Qaeda, in Afghanistan or Iraq, and before those with whom the either dead or captured owner communicates realize the phone is in U.S. hands, they tap every number that has either called to or been called by that phone.

The value of the information, contained on the phone, is extremely perishable and usually becomes worthless as soon as it is learned the communications device has been compromised.

and there's an exception to the warrant first requirement already at the prez's disposal. Why not employ it?

[Yonivore]

I always see revolutionaries and Middle Eastern types when I'm down in the RGV.
Since October 2004, the Joint Terrorism Task Forces have kept track of arrested terrorist suspects who are in the U.S. illegally.

The JTTF document released to Tancredo shows 51 people were arrested who had "entered without inspection" into the U.S. from countries such as Iran, Iraq, Lebanon, Egypt, Syria and Pakistan.

It only took 19 to bring down the World Trade Center.

[Oh, Gee!!]

Since October 2004, the Joint Terrorism Task Forces have kept track of arrested terrorist suspects who are in the U.S. illegally.

The JTTF document released to Tancredo shows 51 people were arrested who had "entered without inspection" into the U.S. from countries such as Iran, Iraq, Lebanon, Egypt, Syria and Pakistan.

It only took 19 to bring down the World Trade Center.

and they came in through Mexico?

[Yonivore]

This is the crux of the situation. The declaration of war is rather broad in this instance, and so even run-of-the-mill crime could, when viewing that declaration broadly, be construed to be an act of war.

Ramzi Yousef's attack in 1993 was similar to the acts of 9/11, but was prosecuted as a crime and not dealt with as an act of war. Certainly, under that rationale, the plotting of an attack like Yousef's or like the 9/11 attacks would be a crime and susceptible to investigation by the same means that other crimes are investigated, including all of the Constitutional prerequistes for such an investigation (such as necessary warrants).

So, in the end, the answer to your "Why should they have to" question is "The Constitution." And the concerns for secrecy and other such nonsense are quite easily resolved by the nature of FISC proceedings. I don't see how the White House continues to believe that it can press an argument for the non-applicability of the Constitution to any situation that arises in the United States. That argument suggests to me a belief that the President is above the Constitution, which was obviously never the intention of the Framers.
I disagree and, further, think that had the 93 attack been treated as an enemy attack we'd of avoided the 01 attack.

And, the White House never said the Constitution didn't apply. On the contrary, they argue the Constitution gives the President the power to conduct this program.

[Yonivore]

and they came in through Mexico?
Likely.

[Yonivore]

Arab terrorists 'are getting into the US over Mexican border' (http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2004/08/15/wmex15.xml&sSheet=/news/2004/08/15/ixworld.html)


President Bush has launched a drive to halt illegal immigration across America's porous southern border, amid growing fears that terrorists may be using Mexico as a base camp before heading to Arizona, Texas and California.

A string of alarming incidents has convinced Bush administration officials that lax immigration rules, designed to cope with the huge numbers of illegal entrants from Mexico, have become a significant loophole in the war on terror.

Over the past month, border agents from Arizona and Texas have anonymously reported recent encounters with dozens of Arab men, who have made their way across the 2,000-mile Mexican border.

Patrol agents told one Arizona newspaper that 77 males "of Middle Eastern descent" were apprehended in June in two separate incidents. All were trekking through the Chiricahua mountains and are believed to have been part of a larger group of illegal immigrants. Many were released pending immigration hearings. According to Solomon Ortiz, the Congressman for Corpus Christi in Texas, similar incidents are "happening all over the place. It's very, very scary".

The two groups of Arab males were discovered by patrol guards from Willcox, Arizona. "These guys didn't speak Spanish," said one field agent, "and they were speaking to each other in Arabic. It's ridiculous that we don't take this more seriously. We're told not to say a thing to the media." A colleague told the paper: "All the men had brand-new clothing and the exact same cut of moustache." Local ranchers have also reported a rise in the sightings of large groups of young males.

Last month, border patrol agents at McAllen airport, Texas, arrested a woman believed to be Pakistani, who was carrying a false South African passport. The woman, Farida Ahmed, is still being questioned by the FBI. She was travelling to New York, and admitted to having illegally crossed the Mexican border. She was still carrying a pair of wet jeans in her travel bag.

More than 1.2 million people attempt to cross US borders illegally each year. The vast majority are Mexicans who are immediately repatriated. But under existing laws, which take account limited detention facilities, many non-Mexican illegal immigrants are released prior to a hearing with an immigration judge, which most fail to attend. Almost 22,000 non-Mexican immigrants have been released pending a hearing since last October. Once released, they are free to travel on their own throughout the United States. According to one Texas immigration official, those who slip through the net come "from all over the world".

"If you want to enter the US illegally," said the official, "the way to do it is to get to Mexico first." The possibility of a southern border loophole for potential terrorists was recognised as early as last year. In testimony before Congress, Steve McCraw, the assistant director of the FBI's Office of Intelligence, stated that "the ability of foreign nationals to use [the hearings procedure] to create a well-documented but fictitious identity in the United States, provides an opportunity for terrorists to move freely within the US without triggering name-based watch lists. It also enables them to board planes without revealing their true identity".

According to new laws, approved by President Bush and announced last week by the Homeland Security Department, illegal immigrants who are not Mexican will be repatriated within days, without a hearing. The effort comes in response to a prolonged campaign by Texas congressmen, who have argued that the president's home state was in danger of becoming a gateway to America for terrorists.

In a letter to President Bush last week, Mr Ortiz wrote: "Law enforcement agencies across the south-west border are alarmed that the US is releasing thousands of OTMs [Other than Mexicans]. Those released include individuals from nations the US defines as state sponsors of potential terrorism, or from those nations that have produced large numbers of al-Qaeda militants."

Mr Ortiz also claims that immigration officials have privately warned him that a number of suspicious foreigners have been detained on the Mexican border and then released, including some who claimed to have travelled from South and Central America but were unable to speak Spanish.

The rules are to be tried out first in Tucson, Arizona, and Laredo, Texas. Any non-Mexican illegal immigrant found within 100 miles of the border, within 14 days of their arrival, will be immediately expelled. D'Wayne Jernigan, a sheriff in Del Rio, Texas, believes that the rule change should be immediately implemented across the entire Mexican border. Last month, immigration authorities told Sheriff Jernigan to release 17 Brazilians from his jail, before the FBI had located an interpreter in order to interview them.

"My concern is, are we serious about terrorism?" said Sheriff Jernigan. "Or about homeland security? Because we're turning loose non-Mexicans by the thousands. Entering this country illegally is a crime, and we're turning our heads and ignoring it."

[Oh, Gee!!]

Likely.

bullshit

[Mr. Peabody]

And, the White House never said the Constitution didn't apply. On the contrary, they argue the Constitution gives the President the power to conduct this program.

If you accept the administration's stance on this issue, the President does not have any limits on what he can do in the interest of national security.

[FromWayDowntown]

I disagree and, further, think that had the 93 attack been treated as an enemy attack we'd of avoided the 01 attack.

And, the White House never said the Constitution didn't apply. On the contrary, they argue the Constitution gives the President the power to conduct this program.

Oh, so the 4th Amendment doesn't apply to the President? There doesn't seem to be overwhelming support for that idea among legal commentators who make a living contemplating the scope and effect of the Constitution.

The White House (supported largely by John Yoo (http://www.law.berkeley.edu/faculty/profiles/facultyProfile.php?facID=235), I suspect) is making an argument for why this program is Constitutional. That argument is certainly subject to criticism (and has, IMO, rightly received such criticism) when it runs afoul of well-established and amply-supported precepts. The White House argument attempts to distinguish existing authority to support a position, but in many cases -- particularly with regard to structural Constitutional arguments -- those distinctions create more problems than they solve. It's curious to me that the academic legal community has not come on board with the President's argument (and it's not as if the legal academic community is populated primarily by liberals like the undergraduate academic community) and has been rather strident in questioning the argument. It's not as if the White House's argument is infalliable -- until it's decided in a Court, it's nothing other than an argument.

[Yonivore]

If you accept the administration's stance on this issue, the President does not have any limits on what he can do in the interest of national security.
That's not true.

If you can prove he was using the NSA program in a manner that was "unreasonable," it would be inconsistent with the Fourth amendment protections against unreasonable searches. But, since there's been no evidence presented the wiretappings were unreasonable - and, indeed, their have been at least four FISA court reviews that affirm such warrantless searches ARE reasonable - then the President has his article II powers on which to claim he is doing so in the interest of national security.

Produce an innocent American that was affected by this program and you'd have a point. But, as the President said, if you're talking to al Qaeda it is reasonable for us to want to know why.

[Yonivore]

Oh, so the 4th Amendment doesn't apply to the President? There doesn't seem to be overwhelming support for that idea among legal commentators who make a living contemplating the scope and effect of the Constitution.

The White House (supported largely by John Yoo (http://www.law.berkeley.edu/faculty/profiles/facultyProfile.php?facID=235), I suspect) is making an argument for why this program is Constitutional. That argument is certainly subject to criticism (and has, IMO, rightly received such criticism) when it runs afoul of well-established and amply-supported precepts. The White House argument attempts to distinguish existing authority to support a position, but in many cases -- particularly with regard to structural Constitutional arguments -- those distinctions create more problems than they solve. It's curious to me that the academic legal community has not come on board with the President's argument (and it's not as if the legal academic community is populated primarily by liberals like the undergraduate academic community) and has been rather strident in questioning the argument. It's not as if the White House's argument is infalliable -- until it's decided in a Court, it's nothing other than an argument.
Someone with standing is going to have to file a suit. And, to do so, they're going to have to know they were targeted by one of these warrantless searches. Then, hopefully, they'll have to explain why they're communicating with terrorists.

[Oh, Gee!!]

Someone with standing is going to have to file a suit. And, to do so, they're going to have to know they were targeted by one of these warrantless searches. Then, hopefully, they'll have to explain why they're communicating with terrorists.

they'll know when their house is raided. Of course, it's gonna be hard to file a suit when you're locked away in a foreign country with no access to legal counsel or a hearing to let you know why you're being detained or when you'll be released.

[FromWayDowntown]

Produce an innocent American that was affected by this program and you'd have a point. But, as the President said, if you're talking to al Qaeda it is reasonable for us to want to know why.

That's an ends-justify-the-means rationale that is absolutely foreign to Constitutional jurisprudence. If the subject of the tap is in the United States, he or she is protected by the Constitution, whether you like that or not. You're essentially arguing that those who are tapped are guilty (which, as far as I know hasn't been proven anywhere other than the back-slapping court of Bush approval) and that their guilt justifies a warrantless wiretap. But if that were true, then criminal prosecutions would not be dismissed in other cases in which the wiretap provided evidence that showed the person to be guilty. In other words, the government's only concern would be for wiretapping those who are innocent, and then only to the extent that such activity might create civil liability under 42 U.S.C. s. 1983.

I also think its facile to couch the argument in terms of the President's authority. Peace officers -- those who generally must receive warrants to wiretap and conduct similar types of surveillance -- are executive officers in virtually every governmental scheme in this country. The Article II argument can't end with the President; it would almost necessarily have to extend to every similiar effort by the executive branch, including police investigations. The argument, it seems to me, would vitiate the 4th Amendment's warrant requirement if taken to its logical end point.

[ChumpDumper]

Here's the fun part.

So we're at war.

Fine.

When will it end?

What tangible goal can be met for the President to give up these emergency wartime powers?

Here's my pop quiz:

Will you go to the mat for Hilary Clinton's right to operate with no oversight if she becomes President in the middle of this endless war?

[FromWayDowntown]

Someone with standing is going to have to file a suit. And, to do so, they're going to have to know they were targeted by one of these warrantless searches. Then, hopefully, they'll have to explain why they're communicating with terrorists.

I suspect someone will. But the government won't win it's case if the argument is infirm by saying "well the guy was guilty." Even if the target was as guilty as could be, the Constitutional problem stems from the investigation, and that problem can't be mitigated by the fruits of that investigation -- that's the most fundamental principle of criminal procedure. Again, if that were true, there would never be constitutional problems in prosecuting other crimes in which evidence was secured without a warrant.

[Mr. Peabody]

That's not true.

If you can prove he was using the NSA program in a manner that was "unreasonable," it would be inconsistent with the Fourth amendment protections against unreasonable searches. But, since there's been no evidence presented the wiretappings were unreasonable - and, indeed, their have been at least four FISA court reviews that affirm such warrantless searches ARE reasonable - then the President has his article II powers on which to claim he is doing so in the interest of national security.

Produce an innocent American that was affected by this program and you'd have a point. But, as the President said, if you're talking to al Qaeda it is reasonable for us to want to know why.

The Fourth Amendment also requires probable cause and a warrant, which is the part you and the administration seem to be ignoring.

[Yonivore]

I suspect someone will. But the government won't win it's case if the argument is infirm by saying "well the guy was guilty." Even if the target was as guilty as could be, the Constitutional problem stems from the investigation, and that problem can't be mitigated by the fruits of that investigation -- that's the most fundamental principle of criminal procedure. Again, if that were true, there would never be constitutional problems in prosecuting other crimes in which evidence was secured without a warrant.
Well, if we were talking about a crime and not an enemy, you'd have a point. But, as has been posted over and over and over again, the President's constitutional obligation to maintain NATIONAL SECURITY overrides 4th Amendment protections on the grounds such warrantless searches meet the reasonableness standard.

[Yonivore]

The Fourth Amendment also requires probable cause, which is the part you and the administration seem to be ignoring.
Okay, let's read it together:


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.
The whole amendment -- and its civil protections as well as government obligations -- hinge on the reasonableness of the search [or seizure].

[FromWayDowntown]

Well, if we were talking about a crime and not an enemy, you'd have a point. But, as has been posted over and over and over again, the President's constitutional obligation to maintain NATIONAL SECURITY overrides 4th Amendment protections on the grounds such warrantless searches meet the reasonableness standard.

That's true only if you buy the argument advanced by the Administration that Article II trumps the 4th Amendment in some instances. Again, that argument seems to be accepted by the Administration and its ardent supporters, but it doesn't seem to find much of a foothold among the legal academics and it's questionable whether it would pass muster in a court.

Were that argument absolutely true, it would seem to entirely vitiate the need for the FISA and the FISC in any instance.

I think the bigger problem here is that we are dealing with activities that are criminal in nature but can be plausibly brought within the ambit of the broad declaration.

[FromWayDowntown]

Okay, let's read it together:


The whole amendment -- and its civil protections as well as government obligations -- hinge on the reasonableness of the search [or seizure].

Right, but that amendment has never been understood to allow warrantless searches of REALLY bad guys because based on a belief that those searches would be "reasonable," while other searches would not.

The reasonableness requirement for searches permits a handful of exceptions to the warrant requirement: plain view, searches incident to arrest, Terry stops, and things like that. It's never been construed to mean that as long as the search doesn't affect innocent people, it will be deemed reasonable.

I'd really be interested to see any legal authority you have to support your construction of the 4th Amendment. It strikes me as both a unique and untenable position.

I also don't understand why you'd even suggest that a reasonbleness inquiry under the 4th Amendment saves the program if you're so certain that the 4th Amendment doesn't apply to this situation.

[Yonivore]

That's true only if you buy the argument advanced by the Administration that Article II trumps the 4th Amendment in some instances.
No, again, you're missing the point. The 4th amendment protects you agains UNREASONABLE searches and seizures. There's no "trumping;" if the search is reasonble the 4th amendment doesn't even apply.


Again, that argument seems to be accepted by the Administration and its ardent supporters, but it doesn't seem to find much of a foothold among the legal academics and it's questionable whether it would pass muster in a court.
Ah jeeze, I've posted it at least a dozen times. FISA has made this exact argument when it reviewed just such a case. It has passed muster.

Were that argument absolutely true, it would seem to entirely vitiate the need for the FISA and the FISC in any instance.
Well, it's be asserted that FISA needs to be updated but that it is useful in domestic law enforcement cases.

I think the bigger problem here is that we are dealing with activities that are criminal in nature but can be plausibly brought within the ambit of the broad declaration.
Actually, they are acts of war not crimes. Communicating with the enemy is an act of war and should be treated as such and should be subject to the powers of the President to detect and thwart the products of any such communication without being unduly encumbered by Congressional Statute.

[ChumpDumper]

So you're going to trot out a legal definition of war in this instance and refuse to recognize it for the Geneva Conventions.

Please make up your mind.

[FromWayDowntown]

No, again, you're missing the point. The 4th amendment protects you agains UNREASONABLE searches and seizures. There's no "trumping;" if the search is reasonble the 4th amendment doesn't even apply.

A search without a warrant is unreasonable per se if it does not fall within a well-defined set of exceptions. You're creating an argument out of thin air that searches that would be politically expedient or publicly popular are somehow reasonable. That's a novel theory.


Well, it's be asserted that FISA needs to be updated but that it is useful in domestic law enforcement cases.

Since when? Is the argument that FISA needs to be updated contemporaneous with the institution of the present program? If so, then we're dealing in chicken-and-egg politics.


Actually, they are acts of war not crimes. Communicating with the enemy is an act of war and should be treated as such and should be subject to the powers of the President to detect and thwart the products of any such communication without being unduly encumbered by Congressional Statute.

Who defines who the enemy is? And where do the President's powers stop? What you wish to investigate without a warrant is the possibility that individuals will undertake to harm civilians in the United States. Assuming that to be an act of War, it is no less a crime than Timothy McVeigh's activities, for example. I can't square the idea that if McVeigh was active today, the government would need a warrant to investigate him, but wouldn't need a warrant to investigate Mohammed who lives next door.

[ChumpDumper]

So what exactly would update FISA so that it would provide something resmbling oversight of the executive for these specific cases?

[FromWayDowntown]

as an aside, hello whottt. It's good to see you back.

[xrayzebra]

They'd rather cast a wide net and hope they catch something. Can't get a warrant based on those facts--they're not lazy, just sneaky.


Do you really believe your statment?

[xrayzebra]

those tunnels kind of defeat the purpose of building one of those walls that wingnuts like Tom Tancredo want doesn't it?

No

[xrayzebra]

so they could have gotten a warrant. Way to fall into a trap

Helllllllooooooo. OG, what part of International don't you understand!

[xrayzebra]

I always see revolutionaries and Middle Eastern types when I'm down in the RGV.


Then you don't look very close. I lived there for many years, and I saw
them. Not the Middle Eastern types, but the revolutionaries. Like taking
over the Mayors office in McAllen....helllllooooo!

[Yonivore]

Right, but that amendment has never been understood to allow warrantless searches of REALLY bad guys because based on a belief that those searches would be "reasonable," while other searches would not.

The reasonableness requirement for searches permits a handful of exceptions to the warrant requirement: plain view, searches incident to arrest, Terry stops, and things like that. It's never been construed to mean that as long as the search doesn't affect innocent people, it will be deemed reasonable.

I'd really be interested to see any legal authority you have to support your construction of the 4th Amendment. It strikes me as both a unique and untenable position.
I'll dig up the FISA Review Court opinion...again.


I also don't understand why you'd even suggest that a reasonbleness inquiry under the 4th Amendment saves the program if you're so certain that the 4th Amendment doesn't apply to this situation.
It doesn't apply because the searches are reasonable. It's that simple.

Have you heard anyone argue that, if the President is using the NSA program as he describes, it is unreasonable or that they want it discontinued? No, most of the heartburn is based on unsubstantiated assertions that he COULD use it illegally or that he MAY have used it illegally.

[SA210]

Oh brother, do I have to post this again? Ok, here we go, this is what Your president has to say about wiretapping to chase down terrorists.

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush

Next.

[ChumpDumper]

No, most of the heartburn is based on unsubstantiated assertions that he COULD use it illegally or that he MAY have used it illegally.Well, who could tell if he WAS using it illegally?

[Mr. Peabody]

Have you heard anyone argue that, if the President is using the NSA program as he describes, it is unreasonable or that they want it discontinued? No, most of the heartburn is based on unsubstantiated assertions that he COULD use it illegally or that he MAY have used it illegally.

The reason that people are saying that he MAY have used it illegally is because the all of the facts relating to the manner in which the program was utilized have yet to be disclosed.

[FromWayDowntown]

It doesn't apply because the searches are reasonable. It's that simple.

What about these searches makes them "reasonable?"


Have you heard anyone argue that, if the President is using the NSA program as he describes, it is unreasonable or that they want it discontinued? No, most of the heartburn is based on unsubstantiated assertions that he COULD use it illegally or that he MAY have used it illegally.

I've heard ample argument that the program is unconstitutional. That, to me, would incorporate arguments that the searches are unreasonable and that they should be continued only with warrants.

[Mr. Peabody]

What about these searches makes them "reasonable?"


If you listen to the administration, the fact that Bush authorized them automatically makes them reasonable.

[Mr. Peabody]

It doesn't apply because the searches are reasonable. It's that simple.


The searches are not reasonable. The President completely ignored the warrant requirement of FISA and the Fourth Amendment.

[Yonivore]

What about these searches makes them "reasonable?"
If you're communicating with a person known to be associated with an enemy with which we are at war, it is reasonable to intercept those communications and see what you're talking about.


I've heard ample argument that the program is unconstitutional.
On what grounds and, please, give a source.


That, to me, would incorporate arguments that the searches are unreasonable and that they should be continued only with warrants.
So, if a Marine shoots Ahkmed in Fallujah and Ahkmed has a pay-as-you-go cell phone with a bunch of other pay-as-you-go cell phone numbers (the sale of which is traced to the United States) you would seek a warrant before you put a trace on every one of those other phones?

[Yonivore]

The searches are not reasonable. The President completely ignored the warrant requirement of FISA and the Fourth Amendment.
No, he entirely ignored FISA; ergo -- ther is no FISA warrant requirement and, we've already stated our argument regarding the 4th amendment.

[Oh, Gee!!]

you would seek a warrant before you put a trace on every one of those other phones?


or within 72 hours of doing so. wouldn't want folks thinking I have something to hide

[Yonivore]

If you listen to the administration, the fact that Bush authorized them automatically makes them reasonable.
That's a lie.

General Hayden, Attorney General Gonzales, Vice President Cheney, and President Bush have given you a detailed explanation of why they engaged in this program and none of them ever uttered the justification of "just because I said so."

[Oh, Gee!!]

That's a lie.

General Hayden, Attorney General Gonzales, Vice President Cheney, and President Bush have given you a detailed explanation of why they engaged in this program and none of them ever uttered the justification of "just because I said so."


I thought details would derail the whole thing and put us at danger.

[Yonivore]

or within 72 hours of doing so. wouldn't want folks thinking I have something to hide
How about keeping a method of surveillance secret?

[Oh, Gee!!]

How about keeping a method of surveillance secret?

we usually keep it secret from the target, but the exec isn't supposed to keep it secret from the court. little nagging thing called checks and bal....

fuck it, you don't get it.

[ChumpDumper]

How about keeping a method of surveillance secret?From FISA oversight? Why? What do they have to hide?

[Mr. Peabody]

No, he entirely ignored FISA; ergo -- ther is no FISA warrant requirement and, we've already stated our argument regarding the 4th amendment.

But FISA does recognize a warrant requirement, as evidenced by authorization to obatin warrants from the FISC and the listed exceptions to the warrant requirement.

[Mr. Peabody]

That's a lie.

General Hayden, Attorney General Gonzales, Vice President Cheney, and President Bush have given you a detailed explanation of why they engaged in this program and none of them ever uttered the justification of "just because I said so."

No, but that is Bush's argument. His argument is that he has the authority to order these searches and hence, they are legal because he orders them.

[Oh, Gee!!]

But FISA does recognize a warrant requirement, as evidenced by authorization to obatin warrants from the FISC and the listed exceptions to the warrant requirement.

If you can't see it, it doesn't exist.

[Mr. Peabody]

If you can't see it, it doesn't exist.

Berkeley?

[Oh, Gee!!]

Berkeley?


no, Barkley. Charles Barkley

[ChumpDumper]

as an aside, hello whottt. It's good to see you back.I commned you on your restraint in this time of semi-retirement. Zak could learn a thing or two here.

[Yonivore]

What about these searches makes them "reasonable?"
Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs. This was no accident; as Alexander Hamilton wrote in Federalist No. 74, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy."

No one questions this basic principle. If our soldiers or intelligence agencies discover a terrorist in Afghanistan, Iraq or elsewhere, the President or his designees can order an air strike or other attack to kill him. It would be very odd if the President has the authority to kill a terrorist, but not to intercept his telephone calls or search his cave.

There is one relevant constitutional provision that acts as a restraint on the President's inherent power as Commander in Chief. That is the Fourth Amendment.

So all searches and seizures of Americans or their property (including, as the courts have appropriately ruled, interceptions of telephonic and electronic communications) must be reasonable. Note, however, that this requirement does not apply to terrorists overseas. A Special Forces soldier can pick a cave arbitrarily and search it. He isn't trying to prosecute terrorists, he is trying to kill them. He doesn't need probable cause.

The Fourth Amendment includes requirements for the issuance of search warrants, and many critics of the NSA program seem to assume that this means that all searches must be executed pursuant to a warrant. This assumption is wrong. There are dozens of situations where warrantless searches have been approved by the courts. The overriding principle is that searches of Americans (defined to include resident aliens) must be reasonable.

One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.

In 1967, the Court decided Katz v. United States, 389 U.S. 347. Katz involved the warrantless interception of a conversation held by a criminal defendant in a phone booth. The Court held that the Fourth Amendment applies to such conversations, and that in an ordinary criminal prosecution (subject to many exceptions, as noted above) a warrant is required for wiretap information to be admissible in court. The Court specifically noted, however, that its decision did not apply to situations involving national security:


Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case.
Five years later, the Court decided United States v. United States District Court, 407 U.S. 297 (1972). This case arose out of a criminal prosecution for conspiracy to destroy government property. (One of the defendants was charged with dynamiting a Michigan office of the C.I.A.) The Court's majority opinion framed the issue as follows:


[This case] involves the delicate question of the President's power, acting through the Attorney General, to authorize electronic surveillance in internal security matters without prior judicial approval.
While acknowledging that American governments had conducted warrantless surveillance in internal security cases "for more than one-quarter of a century," the Court held such surveillance unconstitutional under the circumstances presented.

For the present purpose, the relevant portions of the opinion are those that distinguish the case before the Court from cases involving foreign intelligence gathering:


[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country.
And again:


We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.
It should be noted, too, that the Court did not hold that in domestic security cases, warrants are always required; it merely rejected the government's assertion of a blanket exemption for all such surveillance.

The third relevant Supreme Court case is Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hamdi was an American citizen who was captured on the battlefield in Afghanistan and sued the Defense Department, claiming that his indefinite detention as an enemy combatant was unconstitutional. The Court upheld Hamdi's detention, while also ruling that he was entitled to a limited hearing regarding the facts of his detention. The government offered alternative theories in support of Hamdi's detention; the Court's plurality opinion describes them as follows:


The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Constitution. We do not reach the question whether Article II provides such authority, however, because we agree with the Government's alternative position, that Congress has in fact authorized Hamdi's detention through the AUMF [the post-September 11 Authorization for the Use of Military Force].
The Court noted that apprehending military combatants is a necessary incident of the use of military force:


We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.
Thus, neither the language of the Constitution nor the Supreme Court’s jurisprudence can justify a claim that the NSA program is illegal. While the Court has never specifically ruled on the issue, its decisions are entirely consistent with the administration's view that the President has the inherent constitutional authority to obtain foreign intelligence information through warrantless searches. We turn now to the decisions of the federal Courts of Appeal.

This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). In the course of its opinion rejecting defendant’s claim that his conviction was based on information obtained from illegal wiretaps, the court wrote:


The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of obtaining foreign intelligence information is constitutionally permissible, though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment.

We…discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest.
In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:


In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”
Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:


Foreign security wiretaps are a recognized exception to the general warrant requirement….
In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:


The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court agreed with the government’s position:


For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.

The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:


Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:


The Truong court, 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. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.
That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.

That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.

It’s worth noting that all of the cases cited above involved warrantless searches inside the United States. The NSA program, in contrast, involves international communications only, and the intercepts take place at least in part, and perhaps wholly, outside the United States. Thus, the NSA case is even clearer than the cases that have already upheld Presidential power.

I’m tempted to stop there, since action by Congress can neither add to, nor detract from, the constitutional powers of the executive branch. Because others on both sides have introduced various statutes into the debate, however, I will deal with them briefly.

First, the administration has argued that in addition to its inherent powers, the NSA program is legal because it was authorized by Congress in the post-September 11 Authorization for the Use of Military Force. It is easy to see why the administration wants to employ this argument, since this is the rationale that was adopted by the Supreme Court in Hamdi. And one can certainly argue that the authorization, which says the administration can “use all necessary and appropriate force,” covers intercepting communications, since intelligence gathering is just as much a “fundamental and accepted incident of war” as detaining enemy combatants.

Nevertheless, I don’t think that the statutory argument adds anything to the administration’s position. The response from the other side would be (and has been), “Certainly we authorized the executive to collect intelligence, but we didn’t authorize it to break the law or violate the Constitution.” And, I think that point is well taken.

The AUMF would not be interpreted to authorize the President to take actions that are otherwise illegal, just as, in Hamdi, the Court upheld the detention of enemy combatants but also imposed a procedure that it viewed as constitutionally required. So the argument quickly becomes circular: the AUMF did authorize the administration to engage in intelligence gathering, but only where such intelligence gathering is already proper by virtue of the President’s inherent constitutional powers, or other authority. So, in my view, the statutory argument adds nothing to the already clearly-established proposition that the NSA program is legal.

The other statute that has been discussed in connection with the legality of the NSA intercept program is FISA. It has been argued that FISA explicitly or implicitly requires the administration to conduct foreign intelligence surveillance only pursuant to the procedures set up under that statute.

As an initial matter, this argument has already been rejected by the very appellate court that is charged with interpreting and applying FISA, in Sealed Case No. 02-001. So, from the standpoint of critics of the administration’s program, the argument is a non-starter.

It’s interesting, nevertheless, to examine the provisions of FISA with a view toward answering this question: Given that the administration used the FISA warrant procedure for the vast majority of its anti-terror electronic intercepts, why did it bypass the FISA procedure in the relative handful of instances represented by the NSA program?

There may be an explanation that relates to the jurisdiction of the FISA court. The courts of the United States have jurisdiction within the United States and its possessions; they have no jurisdiction in, say, France or Afghanistan. In the U.S., a court can issue a warrant that requires a telephone company, for example, to cooperate with a government wiretap. It can make no such order in a foreign country. The jurisdictional limits of American courts are reflected, I think, in the scope of the FISA court’s authority as set out in Title 50, Section 1801 of the U.S. Code, the first section of the FISA statute. That section defines the “electronic surveillance” over which the FISA court has jurisdiction:


(f) “Electronic surveillance” means— (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;

(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
Under this definition, FISA applies to four categories of electronic surveillance. The first—“ wire or radio communication[s] sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes…”—does not apply, as I understand the NSA program. The NSA intercepts target foreign terrorists overseas and sweep in all of their communications. To my knowledge, they do not “target” “particular, known United States person[s]” who are in the U.S.

The third category likewise has no application. It relates to interception of communications where both the sender and all intended recipients are located inside the United States. The NSA intercepts were authorized only for international communications.

That leaves the second and fourth categories. Note that the applicability of both sections turns on whether the surveillance activity in question takes place inside the United States. In subsection (2), the “acquisition” must occur in the United States. In subsection (4), the surveillance device must be “installed” or “used” inside the United States.

This is the one point where it would be helpful to know more about the details of the NSA operation. Based on what has been publicly disclosed, it seems likely that the NSA intercepts are picked up overseas, not inside the U.S. If that is the case, FISA simply has no application to the program. The answer to the question, “Why didn’t you obtain FISA orders authorizing these surveillances?” may be, “Because we couldn’t," and General Hayden alluded to this in his speech last Monday.

If the surveillance was outside the jurisdiction of the FISA court, no such orders could be issued. The administration could conclusively answer this question by disclosing where the surveillance equipment is located. But that is, of course, precisely the kind of secret information that the administration doesn’t want the terrorists to know.

In any event, as noted above, FISA might expand, but could not impinge on, the President’s inherent powers under the Constitution, which are more than sufficient to support the electronic intercepts at issue here, wherever they occurred.

One more statute is worth mentioning in the context of the above discussion of FISA: Chapter 19 of Title 18 of the U.S. Code. This is the Electronic Communications Privacy Act of 1986, the basic federal statute that prohibits you and me from wiretapping.

Section 2511 (2) (f) states:


(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
Thus, Congress has made explicit the fact that no federal statute is intended to affect or limit any foreign intelligence gathering that is conducted outside the scope of “electronic surveillance, as defined in [FISA].” In other words, Congress has made no effort to address electronic surveillance that is carried out outside the United States, and does not target specifically identified American persons. This is consistent with Section 2511 (2)(f)’s statement that FISA and the Electronic Communications Privacy Act are the exclusive means by which the government may intercept domestic communications. Except to the very limited extent encompassed by FISA’s definition of “electronic surveillance,” Congress has never purported to address in any way the interception of foreign or international communications.

There is no mystery about the legality of the NSA intercept program. It is intended to capture foreign intelligence information, including information about potential terrorist threats, and as such, every federal court that has addressed the issue has held that it is within the inherent constitutional power of the President as Commander in Chief. Everything else is immaterial.

This brings us back where we started, i.e., the Constitution. The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.” Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when--some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.

There are, of course, liberal law professors who would like the law to be different from what it is. They are free to develop theories according to which the Supreme Court, should it someday address this issue directly, would rule as they wish. But the administration is entitled to rely on the law as it currently exists. And there is simply no question about the fact that under the Constitution and all controlling precedents, the NSA intercept program is legal.

The Department of Justice laid out its argument for the legality of the NSA program in a letter to four Senators and Congressmen. Most of it is consistent with this analysis, but Justice also relies on the Authorization for the Use of Military Force, and points out FISA contains an exception for electronic surveillance that is "authorized by statute," and Justice argues that the AUMF is such a statute. Well, maybe. But I still don't think it adds much to the argument based on the President's inherent Constitutional powers.

Okay, now please respond with arguments of equal authority or STFU.

[Yonivore]

we usually keep it secret from the target, but the exec isn't supposed to keep it secret from the court. little nagging thing called checks and bal....

fuck it, you don't get it.
The Administration regularly briefed Congressional leaders (from both parties) on the program.

[Yonivore]

No, but that is Bush's argument. His argument is that he has the authority to order these searches and hence, they are legal because he orders them.
And, he's supported that assertion with legal and constitutional citations...see below.

[SA210]

Article II makes the President Commander in Chief of the armed forces. As such he is preeminent in foreign policy, and especially in military affairs. This was no accident; as Alexander Hamilton wrote in Federalist No. 74, "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy."

No one questions this basic principle. If our soldiers or intelligence agencies discover a terrorist in Afghanistan, Iraq or elsewhere, the President or his designees can order an air strike or other attack to kill him. It would be very odd if the President has the authority to kill a terrorist, but not to intercept his telephone calls or search his cave.

There is one relevant constitutional provision that acts as a restraint on the President's inherent power as Commander in Chief. That is the Fourth Amendment.

So all searches and seizures of Americans or their property (including, as the courts have appropriately ruled, interceptions of telephonic and electronic communications) must be reasonable. Note, however, that this requirement does not apply to terrorists overseas. A Special Forces soldier can pick a cave arbitrarily and search it. He isn't trying to prosecute terrorists, he is trying to kill them. He doesn't need probable cause.

The Fourth Amendment includes requirements for the issuance of search warrants, and many critics of the NSA program seem to assume that this means that all searches must be executed pursuant to a warrant. This assumption is wrong. There are dozens of situations where warrantless searches have been approved by the courts. The overriding principle is that searches of Americans (defined to include resident aliens) must be reasonable.

One of the many situations where warrantless searches have been approved is when the government is seeking foreign intelligence information, such as information relating to potential terrorist threats. Next to the Constitution itself, of course, the highest authority is the United States Supreme Court. At least three Supreme Court cases have discussed this subject.

In 1967, the Court decided Katz v. United States, 389 U.S. 347. Katz involved the warrantless interception of a conversation held by a criminal defendant in a phone booth. The Court held that the Fourth Amendment applies to such conversations, and that in an ordinary criminal prosecution (subject to many exceptions, as noted above) a warrant is required for wiretap information to be admissible in court. The Court specifically noted, however, that its decision did not apply to situations involving national security:


Five years later, the Court decided United States v. United States District Court, 407 U.S. 297 (1972). This case arose out of a criminal prosecution for conspiracy to destroy government property. (One of the defendants was charged with dynamiting a Michigan office of the C.I.A.) The Court's majority opinion framed the issue as follows:


While acknowledging that American governments had conducted warrantless surveillance in internal security cases "for more than one-quarter of a century," the Court held such surveillance unconstitutional under the circumstances presented.

For the present purpose, the relevant portions of the opinion are those that distinguish the case before the Court from cases involving foreign intelligence gathering:


And again:


It should be noted, too, that the Court did not hold that in domestic security cases, warrants are always required; it merely rejected the government's assertion of a blanket exemption for all such surveillance.

The third relevant Supreme Court case is Hamdi v. Rumsfeld, 542 U.S. 507 (2004). Hamdi was an American citizen who was captured on the battlefield in Afghanistan and sued the Defense Department, claiming that his indefinite detention as an enemy combatant was unconstitutional. The Court upheld Hamdi's detention, while also ruling that he was entitled to a limited hearing regarding the facts of his detention. The government offered alternative theories in support of Hamdi's detention; the Court's plurality opinion describes them as follows:


The Court noted that apprehending military combatants is a necessary incident of the use of military force:


Thus, neither the language of the Constitution nor the Supreme Court’s jurisprudence can justify a claim that the NSA program is illegal. While the Court has never specifically ruled on the issue, its decisions are entirely consistent with the administration's view that the President has the inherent constitutional authority to obtain foreign intelligence information through warrantless searches. We turn now to the decisions of the federal Courts of Appeal.

This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). In the course of its opinion rejecting defendant’s claim that his conviction was based on information obtained from illegal wiretaps, the court wrote:


In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:


Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:


In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:


The court agreed with the government’s position:


The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.

The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:


Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:



That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.

It’s worth noting that all of the cases cited above involved warrantless searches inside the United States. The NSA program, in contrast, involves international communications only, and the intercepts take place at least in part, and perhaps wholly, outside the United States. Thus, the NSA case is even clearer than the cases that have already upheld Presidential power.

I’m tempted to stop there, since action by Congress can neither add to, nor detract from, the constitutional powers of the executive branch. Because others on both sides have introduced various statutes into the debate, however, I will deal with them briefly.

First, the administration has argued that in addition to its inherent powers, the NSA program is legal because it was authorized by Congress in the post-September 11 Authorization for the Use of Military Force. It is easy to see why the administration wants to employ this argument, since this is the rationale that was adopted by the Supreme Court in Hamdi. And one can certainly argue that the authorization, which says the administration can “use all necessary and appropriate force,” covers intercepting communications, since intelligence gathering is just as much a “fundamental and accepted incident of war” as detaining enemy combatants.

Nevertheless, I don’t think that the statutory argument adds anything to the administration’s position. The response from the other side would be (and has been), “Certainly we authorized the executive to collect intelligence, but we didn’t authorize it to break the law or violate the Constitution.” And, I think that point is well taken.

The AUMF would not be interpreted to authorize the President to take actions that are otherwise illegal, just as, in Hamdi, the Court upheld the detention of enemy combatants but also imposed a procedure that it viewed as constitutionally required. So the argument quickly becomes circular: the AUMF did authorize the administration to engage in intelligence gathering, but only where such intelligence gathering is already proper by virtue of the President’s inherent constitutional powers, or other authority. So, in my view, the statutory argument adds nothing to the already clearly-established proposition that the NSA program is legal.

The other statute that has been discussed in connection with the legality of the NSA intercept program is FISA. It has been argued that FISA explicitly or implicitly requires the administration to conduct foreign intelligence surveillance only pursuant to the procedures set up under that statute.

As an initial matter, this argument has already been rejected by the very appellate court that is charged with interpreting and applying FISA, in Sealed Case No. 02-001. So, from the standpoint of critics of the administration’s program, the argument is a non-starter.

It’s interesting, nevertheless, to examine the provisions of FISA with a view toward answering this question: Given that the administration used the FISA warrant procedure for the vast majority of its anti-terror electronic intercepts, why did it bypass the FISA procedure in the relative handful of instances represented by the NSA program?

There may be an explanation that relates to the jurisdiction of the FISA court. The courts of the United States have jurisdiction within the United States and its possessions; they have no jurisdiction in, say, France or Afghanistan. In the U.S., a court can issue a warrant that requires a telephone company, for example, to cooperate with a government wiretap. It can make no such order in a foreign country. The jurisdictional limits of American courts are reflected, I think, in the scope of the FISA court’s authority as set out in Title 50, Section 1801 of the U.S. Code, the first section of the FISA statute. That section defines the “electronic surveillance” over which the FISA court has jurisdiction:


Under this definition, FISA applies to four categories of electronic surveillance. The first—“ wire or radio communication[s] sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes…”—does not apply, as I understand the NSA program. The NSA intercepts target foreign terrorists overseas and sweep in all of their communications. To my knowledge, they do not “target” “particular, known United States person[s]” who are in the U.S.

The third category likewise has no application. It relates to interception of communications where both the sender and all intended recipients are located inside the United States. The NSA intercepts were authorized only for international communications.

That leaves the second and fourth categories. Note that the applicability of both sections turns on whether the surveillance activity in question takes place inside the United States. In subsection (2), the “acquisition” must occur in the United States. In subsection (4), the surveillance device must be “installed” or “used” inside the United States.

This is the one point where it would be helpful to know more about the details of the NSA operation. Based on what has been publicly disclosed, it seems likely that the NSA intercepts are picked up overseas, not inside the U.S. If that is the case, FISA simply has no application to the program. The answer to the question, “Why didn’t you obtain FISA orders authorizing these surveillances?” may be, “Because we couldn’t," and General Hayden alluded to this in his speech last Monday.

If the surveillance was outside the jurisdiction of the FISA court, no such orders could be issued. The administration could conclusively answer this question by disclosing where the surveillance equipment is located. But that is, of course, precisely the kind of secret information that the administration doesn’t want the terrorists to know.

In any event, as noted above, FISA might expand, but could not impinge on, the President’s inherent powers under the Constitution, which are more than sufficient to support the electronic intercepts at issue here, wherever they occurred.

One more statute is worth mentioning in the context of the above discussion of FISA: Chapter 19 of Title 18 of the U.S. Code. This is the Electronic Communications Privacy Act of 1986, the basic federal statute that prohibits you and me from wiretapping.

Section 2511 (2) (f) states:


Thus, Congress has made explicit the fact that no federal statute is intended to affect or limit any foreign intelligence gathering that is conducted outside the scope of “electronic surveillance, as defined in [FISA].” In other words, Congress has made no effort to address electronic surveillance that is carried out outside the United States, and does not target specifically identified American persons. This is consistent with Section 2511 (2)(f)’s statement that FISA and the Electronic Communications Privacy Act are the exclusive means by which the government may intercept domestic communications. Except to the very limited extent encompassed by FISA’s definition of “electronic surveillance,” Congress has never purported to address in any way the interception of foreign or international communications.

There is no mystery about the legality of the NSA intercept program. It is intended to capture foreign intelligence information, including information about potential terrorist threats, and as such, every federal court that has addressed the issue has held that it is within the inherent constitutional power of the President as Commander in Chief. Everything else is immaterial.

This brings us back where we started, i.e., the Constitution. The only constitutional limitation on the President’s power to intercept communications by Americans for national security purposes is that such intercepts be “reasonable.” Is it reasonable for the administration to do all it can to identify the people who are communicating with known terrorists overseas, via the terrorists’ cell phones and computers, and to learn what terrorist plots are being hatched by those persons? Is it reasonable to do so even when—rather, especially when--some portion of those communications come from people inside the United States? I don’t find it difficult to answer those questions; nor, if called upon to do so, would the Supreme Court.

There are, of course, liberal law professors who would like the law to be different from what it is. They are free to develop theories according to which the Supreme Court, should it someday address this issue directly, would rule as they wish. But the administration is entitled to rely on the law as it currently exists. And there is simply no question about the fact that under the Constitution and all controlling precedents, the NSA intercept program is legal.

The Department of Justice laid out its argument for the legality of the NSA program in a letter to four Senators and Congressmen. Most of it is consistent with this analysis, but Justice also relies on the Authorization for the Use of Military Force, and points out FISA contains an exception for electronic surveillance that is "authorized by statute," and Justice argues that the AUMF is such a statute. Well, maybe. But I still don't think it adds much to the argument based on the President's inherent Constitutional powers.

Okay, now please respond with arguments of equal authority or STFU.
Ok, now here is what Your President has to say about all that.

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush

[ChumpDumper]

Whose blog did you plagiarize this time?

[Yonivore]

Whose blog did you plagiarize this time?
What, you can't refute the content of the anaylsis?

The factual content is cited and can be looked up and proven to exist. The analysis is just that...analysis. Either you agree or not. Why reinvent an argument that's already been well articulated by someone else? I'm not claiming original thought -- I just want to know if you can refute the claims made.

[Oh, Gee!!]

The Administration regularly briefed Congressional leaders (from both parties) on the program.


if only Congress had the power to issue warrants, then we'd be in business. Are these the same congressional leaders whose help he refuses in making it perfectly legal to do what he's currently doing?

[ChumpDumper]

What, you can't refute the content of the anaylsis?Are we really at war?

What definition of war lets us pick and choose which rules of war we will follow?

When will this war end?

Do you want Hilary to operate without oversight if she's elected?
I'm not claiming original thoughtBy not giving credit, you imply it.

[xrayzebra]

we usually keep it secret from the target, but the exec isn't supposed to keep it secret from the court. little nagging thing called checks and bal....

fuck it, you don't get it.

Someone is getting their dander up. Settle down. Down boy.
You know you can trust the government. You know the courts are part
of government, don't you? :drunk

[Yonivore]

if only Congress had the power to issue warrants, then we'd be in business. Are these the same congressional leaders whose help he refuses in making it perfectly legal to do what he's currently doing?
huh?

Look, warrantless searches for a variety of reasons have been upheld by the courts since the dawn of this nation.

For instance did you know it's been long held as legal by various courts, from District to Supreme, to:

Detain American citizens for investigative purposes without a warrant;

Arrest American citizens, based on probable cause, without a warrant;

Conduct a warrantless search of the person of an American citizen who has been detained, with or without a warrant;

Conduct a warrantless search of the home of an American citizen in order to secure the premises while a warrant is being obtained;

Conduct a warrantless search of, and seize, items belonging to American citizens that are displayed in plain view and that are obviously criminal or dangerous in nature;

Conduct a warrantless search of anything belonging to an American citizen under exigent circumstances if considerations of public safety make obtaining a warrant impractical;

Conduct a warrantless search of an American citizen's home and belongings if another person, who has apparent authority over the premises, consents;

Conduct a warrantless search of an American citizen's car anytime there is probable cause to believe it contains contraband or any evidence of a crime;

Conduct a warrantless search of any closed container inside the car of an American citizen if there is probable cause to search the car — regardless of whether there is probable cause to search the container itself;

Conduct a warrantless search of any property apparently abandoned by an American citizen;

Conduct a warrantless search of any property of an American citizen that has lawfully been seized in order to create an inventory and protect police from potential hazards or civil claims;

Conduct a warrantless search — including a strip search — at the border of any American citizen entering or leaving the United States;

Conduct a warrantless search at the border of the baggage and other property of any American citizen entering or leaving the United States;

Conduct a warrantless search of any American citizen seeking to enter a public building;

Conduct a warrantless search of random Americans at police checkpoints established for public-safety purposes (such as to detect and discourage drunk driving);

Conduct warrantless monitoring of common areas frequented by American citizens;

Conduct warrantless searches of American citizens and their vessels on the high seas;

Conduct warrantless monitoring of any telephone call or conversation of an American citizen as long as one participant in the conversation has consented to the monitoring;

Conduct warrantless searches of junkyards maintained by American citizens;

Conduct warrantless searches of docks maintained by American citizens;

Conduct warrantless searches of bars or nightclubs owned by American citizens to police underage drinking;

Conduct warrantless searches of auto-repair shops operated by American citizens;

Conduct warrantless searches of the books of American gem dealers in order to discourage traffic in stolen goods;

Conduct warrantless drug screening of American citizens working in government, emergency services, the transportation industry, and nuclear plants;

Conduct warrantless drug screening of American citizens who are school officials;

Conduct warrantless drug screening of American citizens who are school students;

Conduct warrantless searches of American citizens who are on bail, probation or parole.

These could conceivably be some of the things that the president is thinking about, though certainly not all. I neglected, after all, to mention the long-established "inherent authority" of the president to "conduct warrantless searches to obtain foreign intelligence information," recognized by federal appeals courts and assumed by the Foreign Intelligence Surveillance Court of Review in 2002.

I'm confident that if this ever were to reach a court, he would be found to have been within his constitutional powers to do so. Then, will you admit it was damaging to national security for it ever to have been brought into the light?

[xrayzebra]

No, but that is Bush's argument. His argument is that he has the authority to order these searches and hence, they are legal because he orders them.

Horse Hockey. What searches?

[xrayzebra]

if only Congress had the power to issue warrants, then we'd be in business. Are these the same congressional leaders whose help he refuses in making it perfectly legal to do what he's currently doing?

You mean like the executive branch has the authority to investigate
Congress? Or, like Congress is always investigating the Executive
Branch. How bout the subpoenas congress issues?

[SA210]

I'll be as repititious as needed. Again, here are Your Presidents words on the matter. Funny how the obvious point blank facts are the ones ignored, and people can post long stories with many words and lies to protect a corrupt administration and these threads go on and on with pages of jibberish, but not in any way shape or form do they change the fact that these are Your Presidents feelings and words on the matter.



"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush

[xrayzebra]

I'll be as repititious as needed. Again, here are Your Presidents words on the matter. Funny how the obvious point blank facts are the ones ignored, and people can post long stories with many words and lies to protect a corrupt administration and these threads go on and on with pages of jibberish, but not in any way shape or form do they change the fact that these are Your Presidents feelings and words on the matter.


Give it a rest. Bush administration is not corrupt and you know it. You post
no facts. Just pictures. But I can understand that. Most of you can only
understand the comic strips. Bush clearly speaks of INTERNATONAL. Only
Clinton did the Domestic thing. Like search a person's home with a
warrant. Merriam Webster has a dictionary online, free, look up the word.

[xrayzebra]

The searches are not reasonable. The President completely ignored the warrant requirement of FISA and the Fourth Amendment.


He did? Why is it I find some people with a more learned opinion than yours
more correct. Hmmmmmm. I know you have spoken, but of what? :lol

[SA210]

Give it a rest. Bush administration is not corrupt and you know it. You post
no facts. Just pictures. But I can understand that. Most of you can only
understand the comic strips. Bush clearly speaks of INTERNATONAL. Only
Clinton did the Domestic thing. Like search a person's home with a
warrant. Merriam Webster has a dictionary online, free, look up the word.
:lol This isn't a picture. What's that you say, that I don't post facts? Just because you say that doesn't make it so.

FACT: Bush DID say this. He speaks of "international only", really? Seems to me he said, "ANYTIME" Perhaps you need the Webster dictionary to know what the word "anytime" means when Bush says "anytime the government talks about wiretapping" What a way to refute irrefutable facts. :lol

He even goes to say, "When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

:lol You give it up.


"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush

[Mr. Peabody]

Horse Hockey. What searches?

Wiretaps are searches under the Fourth Amendment.

[Mr. Peabody]

Why is it I find some people with a more learned opinion than yours more correct.

Right, because the fact that he didn't violate any laws is well-settled and I am alone in thinking that there is a possibility of violation. :rolleyes

[Yonivore]

Wiretaps are searches under the Fourth Amendment.
And, as has been established by an extremely large body of law and court opinion, there are exceptions to the warrant requirements in the 4th Amendment.

Foreign intelligence has been found to be one. In fact, in the cases cited the foreign intelligence exception was founded on cases that were of wiretapping that occurred entirely within the United States. So, how can you say NSA wiretapping of communications between a party here and another international party violates the 4th amendment?

[Yonivore]

Right, because the fact that he didn't violate any laws is well-settled and I am alone in thinking that there is a possibility of violation. :rolleyes
Obviously, there are many of us who believe, in this instance, it is well-settled.

[FromWayDowntown]

What, you can't refute the content of the anaylsis?

I can. By the same means:

From The University of Chicago School of Law Faculty Blog, January 9, 2006 (http://uchicagolaw.typepad.com/faculty/2006/01/why_the_nsa_sur.html#more) a bi-partisan letter to Congress that takes on Yoni's analysis in an almost point-by-point fashion (it seems that Yoni's post is, at least, a paraphrase of the letter drafted by DOJ to defend the surveillance program). Here's the retort of some renowned legal scholars.


Dear Members of Congress:


We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush Administration's National Security Agency domestic spying program, as reported in the New York Times, and in particular to respond to the Justice Department's December 22, 2005 letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program. Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the "vitally important government purpose" of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance--but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance ... may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President's actions here.

I. CONGRESS DID NOT IMPLICITLY AUTHORIZE THE NSA DOMESTIC SPYING PROGRAM IN THE AUMF, AND IN FACT EXPRESSLY PROHIBITED IT IN FISA

The DOJ concedes (Letter at 4) that the NSA program involves "electronic surveillance," which is defined in FISA to mean the interception of the contents of telephone, wire, or email communications that occur, at least in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). NSA engages in such surveillance without judicial approval, and apparently without the substantive showings that FISA requires--e.g., that the subject is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue that FISA itself authorizes such electronic surveillance; and, as the DOJ letter acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance not authorized by statute.

The DOJ nevertheless contends that the surveillance is authorized by the AUMF, signed on September 18, 2001, which empowers the President to use "all necessary and appropriate force against" al Qaeda. According to the DOJ, collecting "signals intelligence" on the enemy, even if it involves tapping U.S. phones without court approval or probable cause, is a "fundamental incident of war" authorized by the AUMF. This argument fails for four reasons.

First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.

As noted above, Congress has comprehensively regulated all electronic surveillance in the United States, and authorizes such surveillance only pursuant to specific statutes designated as the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." 18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically addresses the question of domestic wiretapping during wartime. In a provision entitled "Authorization during time of war," FISA dictates that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared war--a more formal step than an authorization such as the AUMF--the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for Congress to consider and enact further authorization. Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA's terms. The DOJ letter remarkably does not even mention FISA's fifteen-day war provision, which directly refutes the President's asserted "implied" authority.

In light of the specific and comprehensive regulation of FISA, especially the fifteen-day war provision, there is no basis for finding in the AUMF's general language implicit authority for unchecked warrantless domestic wiretapping. As Justice Frankfurter stated in rejecting a similar argument by President Truman when he sought to defend the seizure of the steel mills during the Korean War on the basis of implied congressional authorization: "It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is ... to disrespect the whole legislative process and the constitutional division of authority between President and Congress." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).

Second, the DOJ's argument would require the conclusion that Congress implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and specific criminal code provisions as "the exclusive means by which electronic surveillance . . . may be conducted." Repeals by implication are strongly disfavored; they can be established only by "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 137 (2001), and "'the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable,'" id. at 141-142 (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is no evidence, let alone overwhelming evidence, that Congress intended to repeal § 2511(2)(f).

Third, Attorney General Alberto Gonzales has admitted that the administration did not seek to amend FISA to authorize the NSA spying program because it was advised that Congress would reject such an amendment. The administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no.

Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a "fundamental incident of waging war." Id. at 519. The plurality expressly limited this holding to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.

II. CONSTRUING FISA TO PROHIBIT WARRANTLESS DOMESTIC WIRETAPPING DOES NOT RAISE ANY SERIOUS CONSTITUTIONAL QUESTION, WHEREAS CONSTRUING THE AUMF TO AUTHORIZE SUCH WIRETAPPING WOULD RAISE SERIOUS QUESTIONS UNDER THE FOURTH AMENDMENT

The DOJ argues that FISA and the AUMF should be construed to permit the NSA program's domestic surveillance because otherwise there might be a "conflict between FISA and the President's Article II authority as Commander-in-Chief." DOJ Letter at 4. The statutory scheme described above is not ambiguous, and therefore the constitutional avoidance doctrine is not even implicated. See United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no application in the absence of statutory ambiguity"). But were it implicated, it would work against the President, not in his favor. Construing FISA and the AUMF according to their plain meanings raises no serious constitutional questions regarding the President's duties under Article II. Construing the AUMF to permit unchecked warrantless wiretapping without probable cause, however, would raise serious questions under the Fourth Amendment.

A. FISA's Limitations Are Consistent with the President's Article II Role

We do not dispute that, absent congressional action, the President might have inherent constitutional authority to collect "signals intelligence" about the enemy abroad. Nor do we dispute that, had Congress taken no action in this area, the President might well be constitutionally empowered to conduct domestic surveillance directly tied and narrowly confined to that goal--subject, of course, to Fourth Amendment limits. Indeed, in the years before FISA was enacted, the federal law involving wiretapping specifically provided that "[n]othing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President . . . to obtain foreign intelligence information deemed essential to the security of the United States." 18 U.S.C. § 2511(3) (1976).

But FISA specifically repealed that provision. FISA § 201(c), 92 Stat. 1797, and replaced it with language dictating that FISA and the criminal code are the "exclusive means" of conducting electronic surveillance. In doing so, Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). This analysis, Congress noted, was "supported by two successive Attorneys General." Id.

To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. As Justice Jackson famously explained in his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power [is] most vulnerable to attack and in the least favorable of possible constitutional postures." Id. at 640.

Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance. FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights. (For example, although FISA generally requires judicial approval for electronic surveillance of persons within the United States, it permits the executive branch to install a wiretap immediately so long as it obtains judicial approval within 72 hours. 50 U.S.C. § 1805(f).)

Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA. The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition on torture, and, more broadly still, that statutes may not "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." But the administration withdrew the August 2002 torture memo after it was disclosed, and for good reason the DOJ does not advance these extreme arguments here. Absent a serious question about FISA's constitutionality, there is no reason even to consider construing the AUMF to have implicitly overturned the carefully designed regulatory regime that FISA establishes. See, e.g., Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable only if the constitutional question to be avoided is a serious one, "not to eliminate all possible contentions that the statute might be unconstitutional") (emphasis in original; citation omitted).

B. Construing the AUMF to Authorize Warrantless Domestic Wiretapping Would Raise Serious Constitutional Questions

The principle that ambiguous statutes should be construed to avoid serious constitutional questions works against the administration, not in its favor. Interpreting the AUMF and FISA to permit unchecked domestic wiretapping for the duration of the conflict with al Qaeda would certainly raise serious constitutional questions. The Supreme Court has never upheld such a sweeping power to invade the privacy of Americans at home without individualized suspicion or judicial oversight.

The NSA surveillance program permits wiretapping within the United States without either of the safeguards presumptively required by the Fourth Amendment for electronic surveillance--individualized probable cause and a warrant or other order issued by a judge or magistrate. The Court has long held that wiretaps generally require a warrant and probable cause. Katz v. United States, 389 U.S. 347 (1967). And the only time the Court considered the question of national security wiretaps, it held that the Fourth Amendment prohibits domestic security wiretaps without those safeguards. United States v. United States Dist. Court, 407 U.S. 297 (1972). Although the Court in that case left open the question of the Fourth Amendment validity of warrantless wiretaps for foreign intelligence purposes, its precedents raise serious constitutional questions about the kind of open-ended authority the President has asserted with respect to the NSA program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth Amendment freedoms if domestic surveillance can be conducted solely in the discretion of the executive branch).

Indeed, serious Fourth Amendment questions about the validity of warrantless wiretapping led Congress to enact FISA, in order to "provide the secure framework by which the executive branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this nation's commitment to privacy and individual rights." S. Rep. No. 95-604, pt. 1, at 15 (1977) (citing, inter alia, Zweibon v, Mitchell, 516 F.2d 594 (D.C. Cir. 1975), in which "the court of appeals held that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of, nor acting in collaboration with, a foreign power").

Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA program falls within an exception to the warrant and probable cause requirement for reasonable searches that serve "special needs" above and beyond ordinary law enforcement. But the existence of "special needs" has never been found to permit warrantless wiretapping. "Special needs" generally excuse the warrant and individualized suspicion requirements only where those requirements are impracticable and the intrusion on privacy is minimal. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal intrusion on privacy, and the experience of FISA shows that foreign intelligence surveillance can be carried out through warrants based on individualized suspicion..

The court in Sealed Case upheld FISA itself, which requires warrants issued by Article III federal judges upon an individualized showing of probable cause that the subject is an "agent of a foreign power." The NSA domestic spying program, by contrast, includes none of these safeguards. It does not require individualized judicial approval, and it does not require a showing that the target is an "agent of a foreign power." According to Attorney General Gonzales, the NSA may wiretap any person in the United States who so much as receives a communication from anyone abroad, if the administration deems either of the parties to be affiliated with al Qaeda, a member of an organization affiliated with al Qaeda, "working in support of al Qaeda," or "part of" an organization or group "that is supportive of al Qaeda." Under this reasoning, a U.S. citizen living here who received a phone call from another U.S. citizen who attends a mosque that the administration believes is "supportive" of al Qaeda could be wiretapped without a warrant. The absence of meaningful safeguards on the NSA program at a minimum raises serious questions about the validity of the program under the Fourth Amendment, and therefore supports an interpretation of the AUMF that does not undercut FISA's regulation of such conduct.

In conclusion, the DOJ letter fails to offer a plausible legal defense of the NSA domestic spying program. If the Administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. One of the crucial features of a constitutional democracy is that it is always open to the President--or anyone else--to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable.

We hope you find these views helpful to your consideration of the legality of the NSA domestic spying program.

Sincerely,

Curtis A. Bradley
Richard and Marcy Horvitz Professor of Law, Duke University*
Former Counselor on International Law in the State Department Legal Adviser's Office, 2004

David Cole
Professor of Law, Georgetown University Law Center

Walter Dellinger
Douglas Blount Maggs Professor of Law, Duke University
Former Assistant Attorney General, Office of Legal Counsel,1993-1996
Former Acting Solicitor General of the United States, 1996-97

Ronald Dworkin
Frank Henry Sommer Professor, New York University Law School

Richard Epstein
James Parker Hall Distinguished Service Professor, University of Chicago Law School
Peter and Kirsten Bedford Senior Fellow, Hoover Institution

Harold Hongju Koh
Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School
Former Assistant Secretary of State for Democracy, Human Rights and Labor 1998-2001
Former Attorney-Adviser, Office of Legal Counsel, DOJ, 1983-85

Philip B. Heymann
James Barr Ames Professor, Harvard Law School
Former Deputy Attorney General, 1993-94

Martin S. Lederman
Visiting Professor, Georgetown University Law Center
Former Attorney Advisor, Department of Justice Office of Legal Counsel, 1994-2002

Beth Nolan
Former Counsel to the President, 1999-2001; Deputy Assistant Attorney General, Office of Legal Counsel, 1996-1999; Associate Counsel to the President, 1993-1995; Attorney Advisor, Office of Legal Counsel, 1981-1985

William S. Sessions
Former Director, FBI
Former Chief United States District Judge, Western District of Texas

Geoffrey R. Stone
Harry Kalven, Jr. Distinguished Service Professor of Law, University of Chicago
Former Dean of the University of Chicago Law School and Provost of the University of Chicago

Kathleen M. Sullivan
Stanley Morrison Professor, Stanford Law School
Former Dean, Stanford Law School

Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law
Harvard Law School

William W. Van Alstyne
Lee Professor, William and Mary Law School
Former Attorney, Department of Justice, 1958

[Mr. Peabody]

I can. By the same means...



FMD, haven't you heard, the issue is well-settled. You're too late to the party.

Also, I'll save Yoni the trouble --

What are the political leanings of these law school professors?

-or-

It's obvious these legal academics are liberals who will construe the law in any manner to attack the current administration

[FromWayDowntown]

FMD, haven't you heard, the issue is well-settled. You're too late to the party.

Also, I'll save Yoni the trouble --

What are the political leanings of these law school professors?

-or-

It's obvious these legal academics are liberals who will construe the law in any manner to attack the current administration

Yes, of course. And, well, who am I to rely on the legal scholarship of professors at the Harvard, Yale, Chicago, Stanford, and Duke law schools when I can, instead, rely on Yonivore's well-informed legal acumen?

[Trainwreck2100]

I don't get it, why are we lumping the hard working drug cartels with the spoiled oil money terrorists? Drug cartels don't want a city to get attacked, it's bad for business.

[Yonivore]

I can. By the same means:
Your case law cites talk about separation of powers issues, not warrantless wiretaps. The rest are lawyers opinions about what the law says...not court opinions.

Not to mention your whole post was from the perspective of wholly domestic surveillance and doesn't contemplate an international party to the incident.

I guess we'll see you in court.

[Yonivore]

FMD, haven't you heard, the issue is well-settled. You're too late to the party.

Also, I'll save Yoni the trouble --

What are the political leanings of these law school professors?

-or-

It's obvious these legal academics are liberals who will construe the law in any manner to attack the current administration
No, they're just not talking about the NSA Program in question.

So, let me repeat...

In 2002, the United States Foreign Intelligence Surveillance Court (That's the FISC, the guys that review FISA requests and cases) of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:


The Truong court, 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. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent constitutional authority to order warrantless searches for purposes of gathering foreign intelligence information, which includes information about terrorist threats. Furthermore, since this power is derived from Article II of the Constitution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.
Tell me how this doesn't negate the whole premise of your post.

[FromWayDowntown]

Your case law cites talk about separation of powers issues, not warrantless wiretaps. The rest are lawyers opinions about what the law says...not court opinions.

I guess we'll see you in court.

Interesting effort to try to distinguish an amply-supported (and not terribly novel) argument.

The authority cited by the professors says this: before FISA, there would be no doubt that the President was correct; but once Congress enacted FISA (a valid exercise of its Article I powers, it would seem), the President had to play by that rule -- that is, the President had to seek warrants to conduct domestic searches, even for the purposes of obtaining foreign intelligence, more than 15 days after a declaration of war. The only way the White House can get around that argument is to contend that the AUMF repealed some parts of FISA, but implied repeals aren't favored and there is no suggestion anywhere in the AUMF that Congress had any intention to repeal FISA.

The cases you cite, other than In re Sealed Case and Hamzi all pre-date FISA, making those decisions arguably correct in their pre-FISA context. The pre-FISA holdings appear to be directly contradicted (and apparently, intentionally so) by the enactment of FISA.

The FISC's decision in Sealed Case is far from authoritative, though I'll agree it's the only law on the issue. Nevertheless, it's the law in the same sense that the determination of a Tax Court or a Magistrate Judge is law.

Hamzi would appear to be difficult to square with FISA because they deal in different terms -- Hamzi concerns the Constitutional protections afforded enemy combatants; FISA requires that the target be an agent of a foreign power. While there certainly may be some overlap, I can't see that those terms are necessarily coterminous.

Accordingly, neither side has direct and controlling authority on this issue; the entire question is a Constitutional separation of powers issue: can Congress determine the scope of the President's authority to undertake warrantless searches in derrogation of the Fourth Amendment or does Article II contain some implicit grant of a greater authority to the executive?

But, ultimately, you're right -- a court (and likely the Court) will decide this issue in some sense at least. There have been 2 suits filed to challenge the law. If the plaintiffs can find a basis to show standing, the legal issue should be pretty well teed up and should reach the Supreme Court in fairly short order.

[SA210]

Oh, I just thought I'd get back to the truth in the middle of all this jibberish. Let's all hold hands in rememberance of a speech the President gave.

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush

[Yonivore]

Interesting effort to try to distinguish an amply-supported (and not terribly novel) argument.

The authority cited by the professors says this: before FISA, there would be no doubt that the President was correct; but once Congress enacted FISA (a valid exercise of its Article I powers, it would seem), the President had to play by that rule -- that is, the President had to seek warrants to conduct domestic searches, even for the purposes of obtaining foreign intelligence, more than 15 days after a declaration of war. The only way the White House can get around that argument is to contend that the AUMF repealed some parts of FISA, but implied repeals aren't favored and there is no suggestion anywhere in the AUMF that Congress had any intention to repeal FISA.

The cases you cite, other than In re Sealed Case and Hamzi all pre-date FISA, making those decisions arguably correct in their pre-FISA context. The pre-FISA holdings appear to be directly contradicted (and apparently, intentionally so) by the enactment of FISA.

The FISC's decision in Sealed Case is far from authoritative, though I'll agree it's the only law on the issue. Nevertheless, it's the law in the same sense that the determination of a Tax Court or a Magistrate Judge is law.
All your bluster about why FISA was enacted aside (because it really has not bearing on this matter since FISA was designed for wholly domestic surveillance cases), your argument is that the President should have sought a FISA warrant even though FISC says he didn't have to so that a bunch of school lawyers would be happy?


Hamzi would appear to be difficult to square with FISA because they deal in different terms -- Hamzi concerns the Constitutional protections afforded enemy combatants; FISA requires that the target be an agent of a foreign power. While there certainly may be some overlap, I can't see that those terms are necessarily coterminous.
You're completely ignoring FISC's opinion of these type surveillances in which they rely on Sealed Case.


Accordingly, neither side has direct and controlling authority on this issue; the entire question is a Constitutional separation of powers issue: can Congress determine the scope of the President's authority to undertake warrantless searches in derrogation of the Fourth Amendment or does Article II contain some implicit grant of a greater authority to the executive?
I think the body of case law and court opinions will reveal the courts have consistently come down on the side of the President's Constitutional imperative to use his powers, as Commander in Chief, to find out what our enemies are doing -- even if it means spying on an American citizen.


But, ultimately, you're right -- a court (and likely the Court) will decide this issue in some sense at least. There have been 2 suits filed to challenge the law. If the plaintiffs can find a basis to show standing, the legal issue should be pretty well teed up and should reach the Supreme Court in fairly short order.
Good luck finding even one party with standing to bring suit...and, if you do, unless the Supreme Court sees an issue not already decided, they won't even hear it.

[SA210]

Considering that the main point that should end all this jibberish has still been ignored, I thought I'd be repititious again and show what President Bush has to say about this matter. Just because you ignore it, doesn't change the truth.


Oh, I just thought I'd get back to the truth in the middle of all this jibberish. Let's all hold hands in rememberance of a speech the President gave.

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush

[xrayzebra]

:lol This isn't a picture. What's that you say, that I don't post facts? Just because you say that doesn't make it so.

FACT: Bush DID say this. He speaks of "international only", really? Seems to me he said, "ANYTIME" Perhaps you need the Webster dictionary to know what the word "anytime" means when Bush says "anytime the government talks about wiretapping" What a way to refute irrefutable facts. :lol

He even goes to say, "When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."

:lol You give it up.


"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush


It is not wiretapping. It is intercepting conversations made into and out
of the United State on international calls. It is not illegal. He will not
be impeached and the program will continue. Learn to live with it.

[SA210]

As I've said before Xray, just because you wish or say something doesn't make it so. This is from Your President. Not words made up. Keep talkin all that nonsense and spin, it's working, it really is, just like Bush never met Abramoff. :lol



Oh, I just thought I'd get back to the truth in the middle of all this jibberish. Let's all hold hands in rememberance of a speech the President gave.

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush

[xrayzebra]

As I've said before Xray, just because you wish or say something doesn't make it so. This is from Your President. Not words made up. Keep talkin all that nonsense and spin, it's working, it really is, just like Bush never met Abramoff. :lol

Domestic wiretaps do required court orders. International intercepts do
not. :depressed

[SA210]

Your President seems to disagree with you.:lol

[FromWayDowntown]

All your bluster about why FISA was enacted aside (because it really has not bearing on this matter since FISA was designed for wholly domestic surveillance cases), your argument is that the President should have sought a FISA warrant even though FISC says he didn't have to so that a bunch of school lawyers would be happy?

I think the argument is that the only authority to support the President's position is that single FISC case, and that the FISC decision, while certainly entitled to some respect, is far from authoritative, particularly when used as precedent in Article III courts. It's possible that the federal courts could conclude that FISC is right; but you seem to wholly reject the possibility that the federal courts could recognize that FISA did away with the jurisprudential underpinnings that form the basis for the FISC opinion.

It's not as if higher courts never reverse the legal conclusions of inferior courts.


You're completely ignoring FISC's opinion of these type surveillances in which they rely on Sealed Case.

No, I'm not. I addressed it directly, but said that it is far from authoritative and certainly not controlling precedent in the determination of this controversy. It's an opinion of a lower court (in this case, an Article I "court"), which leaves it subject to review and re-assessment should a proper case for doing so arise. I think the position of the legal academics (Were I you, I wouldn't be castigating them for that trait, since the pointman on the President's position, John Yoo, a Professor of Law at Boalt Hall (Cal-Berkeley Law School) is equally a legal academic) who signed the letter would be that the FISC's decision is of questionable validity, given the other precedent that would bear upon the separation of powers issue that is inherent in this program. The FISC decision would certainly be significant to the Administration's argument and it might actually be determinative with a reviewing court. But to say, at this moment in time, that it forecloses the possibliity of a constitutional problem ignores most precepts of federal jurisprudence.


I think the body of case law and court opinions will reveal the courts have consistently come down on the side of the President's Constitutional imperative to use his powers, as Commander in Chief, to find out what our enemies are doing -- even if it means spying on an American citizen.

I think you're right about the pre-FISA decisions in a broad sense. This issue, however, is precisely the issue that the Supreme Court has left open from Day 1. So, we don't know how that Court would decide the issue. What we do know is that the Supreme Court has generally decided that domestic electronic surveillance requires a warrant. What we also know is that the Court has historically taken a dim view of arguments concerning the superiority of implicit Constitutional authority in separation of powers issues. Therefore, in the end, we know that if the Supreme Court were to uphold the program it would be carving out an exception to much of its existing decisional law.


Good luck finding even one party with standing to bring suit...and, if you do, unless the Supreme Court sees an issue not already decided, they won't even hear it.

If the case can make it to the Supreme Court with a plaintiff who actually has standing, I'd be willing to bet that the Court would take the issue, mostly because it's earlier cases have expressly left this very question open. I read that to mean that the Court wouldn't buy an argument that the issue of Article II providing some implicit executive power to override the Article I law-making authority of Congress has been authoritatively decided. But you're right, standing will likely be a major impediment to challenging the
program and may, ultimately, protect the program from any judicial review.

[xrayzebra]

^^I am quite sure we will all get our answer soon enough. All Presidents have
used war time powers in all manner of ways. Go back and look at history.
Anyhow, the topic is been mauled over and over and no one on this forum has had their mind changed one iota.

[SA210]

^^I am quite sure we will all get our answer soon enough. All Presidents have
used war time powers in all manner of ways. Go back and look at history.
Anyhow, the topic is been mauled over and over and no one on this forum has had their mind changed one iota.
Hey, speak for yourself, My mind has changed. Bush is dumber than I thought, and I didn't think that was possible. :lol

http://i23.photobucket.com/albums/b381/livindeadboi/bush_dunce.jpg

[SA210]

huh?

[Yonivore]

I think the argument...
I understand the argument. But in light of your detailed and, might I say, strained suppositions over what the courts “might” find if it were to go to trial; do you really think it was worth blowing the cover on a top secret NSA program?

Particularly when there are no apparent injured parties?

[Peter]

Who wants to prohibit the flexibility of the govt to engage in inbound intercepts of communications from known enemy operatives abroad? That's when I start to wonder about the sanity of some here. If the NSA taps somebody's call from Afghanistan to NYC, I'm not seeing the dire threat to our rights.

Some of you are letting politics make you forget what side you're on.

[FromWayDowntown]

Who wants to prohibit the flexibility of the govt to engage in inbound intercepts of communications from known enemy operatives abroad? That's when I start to wonder about the sanity of some here. If the NSA taps somebody's call from Afghanistan to NYC, I'm not seeing the dire threat to our rights.

Some of you are letting politics make you forget what side you're on.

I abide by a basic principle in this discussion. The Constitution and its protections should guide the actions of the United States government. If the government can simply ignore the precepts of the Constitution at its whim upon developing some interim justification for doing so, then I'm left to wonder whether the institution of government truly respects that document and the principles it stands for. Ultimately, I think we fight any war to protect and preserve our way of life, which is largely defined by the liberties and freedoms that the Constitution strives to protect. If we the government can ignore those liberties and freedoms in some willy-nilly fashion, then I'm not sure what good the war does. If, ultimately, Americans are asked to forfeit fundamental rights in the pursuit of war, then why not just acknowledge that the Constitution only has temporal and circumstantial relevance? That's my point.

The ends will never justify the means to me, so long as the means intrude upon Constitutional liberties.

[Peter]

Whose liberties though? If Ali Baba, known al Qaeda operative calls up his brother, Mohammed Baba (non US citizen), in NYC from Afghanistan and the NSA intercepts the communication before it reaches the US, that doesn't seem like the end of our liberties. That seems quite prudent and frankly, a reasonable activity for the govt to be engaged in as part of its military operations.

[Yonivore]

I abide by a basic principle in this discussion. The Constitution and its protections should guide the actions of the United States government. If the government can simply ignore the precepts of the Constitution at its whim upon developing some interim justification for doing so, then I'm left to wonder whether the institution of government truly respects that document and the principles it stands for. Ultimately, I think we fight any war to protect and preserve our way of life, which is largely defined by the liberties and freedoms that the Constitution strives to protect. If we the government can ignore those liberties and freedoms in some willy-nilly fashion, then I'm not sure what good the war does. If, ultimately, Americans are asked to forfeit fundamental rights in the pursuit of war, then why not just acknowledge that the Constitution only has temporal and circumstantial relevance? That's my point.

The ends will never justify the means to me, so long as the means intrude upon Constitutional liberties.
You seemed to agree, in an earlier post, that there is some possibility this program could have been legal and constitutional. Given that, do you also think it's possible that to satisfy this question the government might have to seriously compromise any strategic benefit this program might have had?

Then, given that, is it fucking worth all the screeching when you don't even know if there is anyone who was harmed by the intercepts? Except, of course, some terrorists and their American abettors?

[Peter]

What can't the president order tapped then?

[Yonivore]

What can't the president order tapped then?
Domestic communications that he has no reason to believe affect national security.

[Peter]

Domestic communications that he has no reason to believe affect national security.


What about a call from Aunt Millie in Gary, Indiana to her nephew in Hamburg?

Also, what if the president has a political opponent whose domestic calls he believes would affect national security (*wink* *wink*)? What then?

[Yonivore]

What about a call from Aunt Millie in Gary, Indiana to her nephew in Hamburg?

Also, what if the president has a political opponent whose domestic calls he believes would affect national security (*wink* *wink*)? What then?
If he's caught, he'd better be able to demonstrate reasonableness, as pertains to 4th amendment protections against unreasonable searches, to a court of competent jurisdiction.

In the case of the NSA program in question, at least one of the points between which communications is being conducted is known to be associated with al Qaeda or another terrorist organization. In the context of ongoing hostilities with such organizations, I'd say it's a reasonable search.

The bottom line on this whole question is this:

Neither I nor you know whether or not the President exceeded his Constitutional authority in ordering warrantless eavesdropping using this NSA Program. We will probably never know unless it is tried in a court of law. The people who now know can't say and the people who are demanding to know have no business asking unless they are 1) a harmed party or 2) a court adjudicating the relevant case.

I base my opinion on the legality of the Program based on what I've heard so far. The administration makes a determination on every surveillance whether or not to seek a FISA warrant or to refer it to the NSA Program. They claim this determination is based on the applicability of the FISA statute and the particular circumstance involved. General Hayden went on to say that the cases that are referred to the NSA Program do not lend themselves to the constraints of the FISA statute but that they do fall under the authority of the President as Commander in Chief pursuant to his article II powers.

Obviously, people who hate Bush want to believe the worst and are apparently willing to compromise any possible strategic benefit this program had in order to find out -- even when they can't show one single American that was harmed by the described program.

The FISC has already ruled, as have dozens of appelate courts, in other cases, that the President has article II powers to warrantless searches in various circumstances -- even those when the entire communication occurred in the United States.

I think the Bush-haters have taken us down a dangerous road for the sake of trying to, once again, hang President Bush.

[Peter]

So perhaps GWB has broken the law?

[Yonivore]

So perhaps GWB has broken the law?
I don't see how and no one has shown any evidence to indicate otherwise. See edit to previous post.

[Peter]

Well, how is the evidence supposed to come to light?

[Yonivore]

Well, how is the evidence supposed to come to light?
In court.

All we've heard are a bunch of teeth-gnashers saying the President may have broken the law. Find an actionable claim and file your case.

Otherwise, I say shut up and quit helping the enemy.

[Peter]

I meant how does the evidence even make it to that stage.

[Yonivore]

I meant how does the evidence even make it to that stage.
Someone develops it, just like any investigation.

The proper avenue would have been for the NSA leakers to file their complaint with the NSA Inspector General. However, as we've been informed by General Hayden, no such complaints were filed. And, once Risen's story (timed by the New York Times to coincide with the release of his book -- after holding the story for a year) was in print, the NSA specifically asked all employees involved with the program to report any allegations to the Inspector General. Still nothing.

That tells me the leakers were not in a position to even know the specifics of the program, even though the NYT claims they were current and former NSA employees.

I still think they need to be prosecuted for treason.

[Peter]

But any leak is supposedly a threat to national security.

[Yonivore]

But any leak is supposedly a threat to national security.
Your point? Because this leak definitely was a threat.

[Peter]

But you don't have any details about the program. How do you know it was a "threat"? Because the administration said so?

[Yonivore]

But you don't have any details about the program.
I'm not entitled to them.

Why don't you ask all 20 questions at once? You're starting to get tiring. If you have an argument to make, I suggest -- if you want my opinion, that is -- that you get to the point.

[Peter]

You're not entitled to them? How are the people (via their representatives) not entitled to knowing if their government is engaged in criminal activities due to simply claiming 'national security'? Nixon tried that defense once upon a time. Didn't work.

I'll post as I wish. Deal.

[Yonivore]

You're not entitled to them? How are the people (via their representatives) not entitled to knowing if their government is engaged in criminal activities? Nixon tried that defense once upon a time. Didn't work.
You said "details of the program." Sure we're entitled to know if our President is breaking the law. What exactly has been exposed that suggests he has?

Look at it from another perspective. What if a partisan with an axe to grind is bringing a valuable intelligence asset to a halt just to harrass the President?


I'll post as I wish. Deal.
You're right. I was just warning you that if you wanted me to continue engaging in this dialog, your "20 questions" approach had about run its course.

[Peter]

The Devil is in the details. How is it determined who is the target of an intercept? Where does the intercept occur? Are all communications that are intercepted domestic or intl? And so on. These details could very well make such a program unconstitutional.

I don't want an executive branch unfettered to spy domestically. Your recipe would allow for that.

[Yonivore]

The Devil is in the details. How is it determined who is the target of an intercept? Where does the intercept occur? Are all communications that are intercepted domestic or intl? And so on. These details could very well make such a program unconstitutional.
Wouldn't you agree that to release those details, to the public (you and me), unnecessarily is a dangerous road to go down?

The President and General Hayden have both stated that Congress was briefed every 45 days on this program. Do you think those Congressional members didn't ask these questions? Have you heard any of them call for an end to the program?


I don't want an executive branch unfettered to spy domestically. Your recipe would allow for that.
Nor do I. But, no one with access and the ability to know has claimed this was "unfettered domestic spying." You're only hearing that from partisans. The same ones who, when asked point blank, don't know if the President broke the law and also do not specifically ask the program to be shut down.

Saying the President could be using his power to do wrong is different than making a specific allegation that he has. And, I would argue that to do the former in a partisan attack -- that results in damaging a vital intelligence asset during a time of conflict is unpardonable.

[Peter]

Wouldn't you agree that to release those details, to the public (you and me), unnecessarily is a dangerous road to go down?

The President and General Hayden have both stated that Congress was briefed every 45 days on this program. Do you think those Congressional members didn't ask these questions? Have you heard any of them call for an end to the program?

They've certainly raised questions about it. The administration has been scrambling to advance a defense for it.



Nor do I. But, no one with access and the ability to know has claimed this was "unfettered domestic spying." You're only hearing that from partisans. The same ones who, when asked point blank, don't know if the President broke the law and also do not specifically ask the program to be shut down.

Saying the President could be using his power to do wrong is different than making a specific allegation that he has. And, I would argue that to do the former in a partisan attack -- that results in damaging a vital intelligence asset during a time of conflict is unpardonable.

So citizens are traitors for questioning their own government? I thought we Americans had done away with that mode of thought a couple of centuries ago.

[Yonivore]

They've certainly raised questions about it. The administration has been scrambling to advance a defense for it.
Really, what exactly are the questions that couldn't be "raised" about any covert, top-secret, national security intelligence program?

Are there any specific allegations of wrongdoing? If so, what are they?

So citizens are traitors for questioning their own government? I thought we Americans had done away with that mode of thought a couple of centuries ago.
No, citizens are traitors when they expose a top-secret program in an effort to score political points and, in the process, compromise our nation's ability to detect and stop an enemy attack.

[Peter]

Well, if it's premature to call for the administration's head it is also such to start labelling critics as traitors.

[Yonivore]

Well, if it's premature to call for the administration's head it is also such to start labelling critics as traitors.
I believe the "current and former NSA" employees that leaked the program's existence have committed an act of treason.

If there were any intelligence benefits reaped from that program at all, any mere suppositions that it may have been used wrongly should have been supported with a concrete case and, instead of revealed in a NYT opinion piece on the publication of a book it should have been properly reported through the NSA's Inspector General's office.

To do otherwise was a treasonous act for personal and political gain...or worse, aiding and abetting an enemy. Period.

[SA210]

Oh, I just thought I'd get back to the truth in the middle of all this jibberish. Let's all hold hands in rememberance of a speech the President gave.

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush

[Trainwreck2100]

Oh, I just thought I'd get back to the truth in the middle of all this jibberish. Let's all hold hands in rememberance of a speech the President gave.

"Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
-George W. Bush

Stop posting the same thing over and over, it's getting freaky for a second there I thought I could tell the future

[xrayzebra]

And then you have the dimm-o-crap version of things, but note she didn't say
it was illegal. Just she THOUGHT they should follow guidelines. Got to love it.



--------------------------------------------------------------------------------


Associated Press
Pelosi Questions Bush's Spying Program
By KATHERINE SHRADER , 01.28.2006, 01:34 PM

House Democratic leader Nancy Pelosi says President Bush should have used his extensive authority under the law to monitor suspected terrorists rather than approve the National Security Agency's disputed monitoring program.

"I would not want any president - Democrat or Republican - to have the expanded power the administration is claiming in this case," Pelosi, D-Calif., said in an interview with The Associated Press.

Pelosi did not say the NSA's surveillance program was illegal. But she said the administration should follow the procedures in the 1978 Foreign Intelligence Surveillance Act, which allows government lawyers to ask a secretive court for warrants for surveillance in the United States during national security investigations.

"If you say ... this is for a narrow universe of calls, there is absolutely no issue with getting a FISA warrant for that," said Pelosi, who was the top Democrat on the House Intelligence Committee and has been involved for the past 13 years in overseeing U.S. intelligence agencies.

"It is when you go beyond that, that it becomes a challenge," she said in the interview Friday. "The president says he is not going beyond that, so why can't he obey the law?"

Pelosi declined to offer specifics about warrants granted, but she said the administration already has "the mother of all FISAs which enables them to do a lot."

Shortly after the attacks of Sept. 11, 2001, Bush approved a program that allows warrantless monitoring by the NSA of the international communications of people on U.S. soil who may be linked to al-Qaida.

Pelosi has spoken publicly about the need for congressional oversight on this program. While she has been briefed several times by the administration, Pelosi has said that does not mean she approved of the surveillance.

She wants Congress and the president to have the best intelligence available, yet broadly questions the legality of the domestic surveillance.

The Justice Department, in the administration's most recent defense of the NSA program, issued on Friday a six-point "Myth vs. Reality" rebuttal of criticism leveled against Bush's action. It claims that Bush has legal authority through his position as commander in chief as well as through a congressional resolution passed shortly after the 2001 terrorist attacks.

The administration also resists descriptions of the program as domestic spying, arguing that the communications under surveillance involve an overseas party. And it contends that the program is consistent with FISA, which the administration suggests moves too slowly for some monitoring.

In her first extensive comments on the NSA program, Pelosi offered additional details during the interview about her concerns, including her belief that the administration is making weak arguments to justify the monitoring.

Pelosi said if new technology is making it difficult for U.S. authorities to monitor communications, then Bush should ask for updates in the law to keep up with the advances.

If the FISA court process is too laborious, "get more lawyers, add more people to it," Pelosi said. "We are only talking about the Constitution of the United States."

Pelosi said she told administration officials that several criteria must be met "to even consider" such a program. She said the information must be "so rich and so valuable" that it cannot be obtained any other way and there is "absolutely no time" to get a warrant.

The monitoring is not as simple as Bush, his aides and administration officials have explained, Pelosi said. She said Congress must have a full set of facts in hearings to determine "how far down the road" the administration went.

For example, Pelosi did not know if a reporter covering the war in Iraq would be caught in the surveillance net.

If Congress's intelligence and judiciary committees fail to investigate thoroughly, she said, "it will be in dereliction of its duties."

A Senate hearing on the program is set for Feb. 6. The chairman of the Senate Judiciary Committee, Sen. Arlen Specter, R-Pa., has written Attorney General Alberto Gonzales, the former White House counsel, about subjects he wants to see addressed:

_Why did the White House not ask Congress for changes to a 1978 foreign surveillance law?

_Why didn't the administration go to an established intelligence court to get approval for the monitoring?

_Will the White House consider doing that now?

Gonzales has agreed to answer questions about the legal basis of the program, but not its operations.

Pelosi tried to walk carefully between making a case for national security and protecting civil liberties.

She rejected recent comments by Ken Mehlman, chairman of the Republican Party, that Pelosi and Democratic Party leader Howard Dean would want the NSA to hang up when terrorists dial their sleeper cells.

"It is a disservice to a very serious debate about security and liberty for him to resort to that kind of a statement," Pelosi said.



Copyright 2005 Associated Press. All rights reserved. This material may not be published broadcast, rewritten, or redistributed

[Yonivore]

Here's my bottom line on this.

I think that the administration's NSA surveillance program, as described by the president, the vice president, the Attorney General, and General Hayden is legal. I don't think it's even a close question based on all that has been published in the media and posted in this thread. However, I will concede reasonable people can disagree on that point.

What is clearly illegal, however, in my view and the view of everyone involved in the Times story disclosing the existence of the NSA surveillance program, are the leaks that led to the story. The illegality of the leaks is precisely why the "nearly a dozen current and former government officials" who leaked the story to James Risen and Eric Lichtblau in connection with the original December 16 story demanded and received anonymity from the Times.

They should be found, arrested, tried and punished.

[FromWayDowntown]

I think that the administration's NSA surveillance program, as described by the president, the vice president, the Attorney General, and General Hayden is legal. I don't think it's even a close question based on all that has been published in the media and posted in this thread. However, I will concede reasonable people can disagree on that point.

I'm not trying to pick here; I'm trying to understand the structure of your argument this isn't "even a close question," since there is certainly no controlling legal authority on the issue and the existing high court authority seems to suggest that just the opposite is true.

With that said, I'm still not sure how you conclude that decisional law that predates the enactment of a controlling statute (which was addressed to the very questions raised by those decisions) is somehow precedential.

And if it's not precedential, it seems to me that you're left with arguing that an unreviewed decision of, in essence, a magistrate-type panel is controlling authority for the entire nation and forecloses any further inquiry into the matter. Isn't that right?

I'm also not sure why the legal analysis of General Hayden, whose biography details absolutely no legal education, is somehow unassailable, while the arguments advanced by prestigious lawyers and law professors are questionable.

[Yonivore]

I'm not trying to pick here; I'm trying to understand the structure of your argument this isn't "even a close question," since there is certainly no controlling legal authority on the issue and the existing high court authority seems to suggest that just the opposite is true.
Okay, you're going to have to cite specific case law that speaks to the President's constitutional prerogative to conduct warrantless searches for foreign intelligence in national security matters. Take your time.


With that said, I'm still not sure how you conclude that decisional law that predates the enactment of a controlling statute (which was addressed to the very questions raised by those decisions) is somehow precedential.
Stick with me to the end of this post and maybe you'll be more certain how I do it.


And if it's not precedential, it seems to me that you're left with arguing that an unreviewed decision of, in essence, a magistrate-type panel is controlling authority for the entire nation and forecloses any further inquiry into the matter. Isn't that right?
I'm not sure I understand your point here but, for the sake of argument, I'm going to assume the remainder of my post will be a response to this...I hope.


I'm also not sure why the legal analysis of General Hayden, whose biography details absolutely no legal education, is somehow unassailable, while the arguments advanced by prestigious lawyers and law professors are questionable.
Okay, let's go to the case law...and please, please stay with me to the end.

You and the "prestigious lawyers and law professors" ("PLLPs for short) purport to be making a technical legal argument but, without citing specific case law, relevant to the particular question.

As a person around too many freakin' lawyers, day in and day out, I can relate to technical legal arguments and they've cherry-picked a few that seem to have sucked you into believing they know of what they speak.

But, if you're going to rely on a legal argument, isn't it necessary to actually...make a legal argument? One would think so, but neither you nor the PLLPs can be bothered to go beyond the broad questions touched on in the cases cited in the PLLPs letter. Instead, they simply denounces the administration's program because it violates the law as currently written and throw out a bunch of case law they believe people will see as supporting their position. And, they do so without specifically addressing, then refuting, the case law presented by the opposition.

So does their letter really constitute a legal argument? When lawyers make technical legal arguments, they generally cite case law that specifically refutes the case law cited by opposition. These Bozos didn't even mention the case law used by the administration in support of the legality and constitutionality of the NSA Program.

Like, for example, United States v. Clay, 430 F.2d 165 (5th Cir. 1970), in which the court held that federal statutes prohibiting wiretapping do not...


"...[forbid] the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest."
That seems obviously pertinent and, please, note the absence of the word domestic in that case law cite; what do the PLLPs have to say about the Clay case? Nothing. They don't mention it.

Another relevant case is United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the court held that no judicial warrant was necessary where...


"...surveillances ... were 'conducted and maintained solely for the purpose of gathering foreign intelligence information.'”
Butenko blows a giant hole in the PLLPs' legal theory. What do they have to say about the Butenko case? Nothing. They don't mention it.

Then there's United States v. Truong, 629 F.2d 908 (4th Cir. 1980), where the court sustained the federal government's position, which it summarized as follows:


"In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs."
The court explained why the President has the inherent constitutional authority to order warrantless electronic surveillance:


"For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.
If the 4th Circuit Court of Appeals was right, then the PLLPs are wrong. So, surely they must have some persuasive rebuttal to the Truong decision in support of their technical legal argument? No, they don't. The PLLPs never refer to Truong.

United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984), was a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA). The court wrote:


"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.
"VIRTUALLY EVERY COURT..." What happened to your "no controlling legal authority"?

A damning summary, to be sure. Surely the PLLPs have a rejoinder to the court's statement that the universal weight of authority is against their position? Nope.

Those cases are pre-FISA, of course, and many (including the PLLPs) are arguing that FISA is the statute the administration "violated." So maybe the PLLPs would argue that the pre-FISA cases don't apply. Such a claim would be unpersuasive on its face, simply because Congress cannot by statute, or other means, strip the executive branch of its constitutional powers.

But there is, in fact, a post-FISA case that specifically addresses the question of whether the passage of that statute could have changed the pre-existing principle that the President has constitutional power to order warrantless surveillance for foreign intelligence purposes. Since that case is directly on point, surely the PLLPs discussed it. Right? Wrong. The PLLPs never mention In re: Sealed Case No. 02-001, decided in 2002 by the Foreign Intelligence Surveillance Court of Review, the very court which is responsible for interpreting and applying FISA.

It's not hard to figure out why the PLLPs pretend that Sealed Case No 02-001 doesn't exist. It conclusively refutes their legal position:


"The Truong court, 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."
So the only federal appellate court that has ruled on the issue says that the PLLPs are wrong about the law. The PLLPs, ostrich-like, pretend that the federal courts don't exist. Or, at least, these federal courts don't exist.

You (nor PLLPs) can't base a technical legal argument on what you think the law ought to be. You can only base a technical legal argument on what the law actually is. And the current state of the law, as uniformly articulated by the federal courts, is that the NSA's international surveillance program is a legal implementation of the President's constitutional powers. So, technically speaking, the PLLPs are simply wrong. And, I'm not even a PL or an LP and I can see that!

Oh, and I find it king of amusing that the case law cites used by the PLLPs are, I believe in all cases, older than any of the case law cited herein...and, yet, they didn't see fit to specifically address the problems it created for their argument.

Which leaves me wondering what the hyperventilating is all about. It's also why I say it's not even a close question.

So, the short answer is:

1) Prior to FISA, the president had the constitutional authority to conduct warrantless searches such as the type done by the NSA Program. None of the case law cited by the PLLPs change this universally held legal opinion supported by case law mentioned above and, in fact, supported by "VIRTUALLY EVERY COURT THAT HAD ADDRESSED THE ISSUE..." if FISC is to be believed.

2) Congress cannot pass a law that diminishes or removes a constitutional power of the executive branch. That is a universally accepted principle of constitutional law.

3) FISA is a law passed by Congress and, therefore, no matter what anyone says, PLLP or not -- is incapable of rendering a President's constitutional power illegal. Period. End of argument. It's not even close.

Now, can we get on with prosecuting the traitors that leaked this vital program and damn near rendered it unusable?

[Yonivore]

I guess no one wants to take this on?

I'll take the silence as agreement the President violated no laws in ordering warrantless eavesdropping.

[Oh, Gee!!]

I guess no one wants to take this on?

I'll take the silence as agreement the President violated no laws in ordering warrantless eavesdropping.


or we're tired of the subject, maybe. I guess you should take your victories in whatever form you happen to find them.

[Mr. Peabody]

I guess no one wants to take this on?

I'll take the silence as agreement the President violated no laws in ordering warrantless eavesdropping.

:rolleyes

You're right. Whatever blog you pulled this off of is the ultimate authority on the subject. It's a wonder that the issue is still being debated.

Also, if you go back and read FWD's prior post he addresses most of the issues you refer to in your post that no one wants to "take on."

[Oh, Gee!!]

or maybe thread starter also killed his (her?) own thread, and Oh, Gee!! and Peabody are burying it.

[Mr. Peabody]

So, the short answer is:

1) Prior to FISA, the president had the constitutional authority to conduct warrantless searches such as the type done by the NSA Program. None of the case law cited by the PLLPs change this universally held legal opinion supported by case law mentioned above and, in fact, supported by "VIRTUALLY EVERY COURT THAT HAD ADDRESSED THE ISSUE..." if FISC is to be believed.

2) Congress cannot pass a law that diminishes or removes a constitutional power of the executive branch. That is a universally accepted principle of constitutional law.

3) FISA is a law passed by Congress and, therefore, no matter what anyone says, PLLP or not -- is incapable of rendering a President's constitutional power illegal. Period. End of argument. It's not even close.

Now, can we get on with prosecuting the traitors that leaked this vital program and damn near rendered it unusable?

Here is my short response:

1) Prior to FISA, the president had the constitutional authority to conduct warrantless searches such as the type done by the NSA Program. None of the case law cited by the PLLPs change this universally held legal opinion supported by case law mentioned above and, in fact, supported by "VIRTUALLY EVERY COURT THAT HAD ADDRESSED THE ISSUE..." if FISC is to be believed.

Yes, because prior to FISA there was little statutory authority detailing the manner in which the President may gather foreign intelligene. This is why many people are arguing that the pre-FISA cases do not apply. Those cases were dealing with the President's powers in the absence of statutory authority.

2) Congress cannot pass a law that diminishes or removes a constitutional power of the executive branch. That is a universally accepted principle of constitutional law.

This statement is misleading. FWD addressed this in his post. Here is the quote --

To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. As Justice Jackson famously explained in his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power most vulnerable to attack and in the least favorable of all constitutional postures." Id. at 640.

Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance.[7] FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights. (For example, although FISA generally requires judicial approval for electronic surveillance of persons within the United States, it permits the executive branch to install a wiretap immediately so long as it obtains judicial approval within seventy-two hours. 50 U.S.C. § 1805(f).)

[I]3) FISA is a law passed by Congress and, therefore, no matter what anyone says, PLLP or not -- is incapable of rendering a President's constitutional power illegal. Period. End of argument. It's not even close.

See response to 2.

Also, if you actually took the time to read Sealed Case No. 02-001, you would realize that the issue that was decided in that case has nothing to do with this current debate. People like yourself, and whoever wrote the blog that you stole argument from, mention the case because of that one statement where they discuss Truong. That statement is mere dicta and as such, is non-binding.

Contrary to your assertion, the PLLP, as you call them, do discuss Sealed Case No. 02-001 and Truong. Here is the analysis --

Three years ago, the FISA Court of Review suggested in dictum that Congress cannot "encroach on the President's constitutional power" to conduct foreign intelligence surveillance. In re Sealed Case No. 02-001, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review, however, did not hold that FISA was unconstitutional, nor has any other court suggested that FISA's modest regulations constitute an impermissible encroachment on presidential authority. The FISA Court of Review relied upon United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that court did not suggest that the President's powers were beyond congressional control. To the contrary, the Truong court indicated that FISA's restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President") (emphasis added).

[Mr. Peabody]

Again, Yoni, I am not saying that my word is the final word on this issue. Ultimately, the courts may decide in favor of Bush.

I just don't feel that you are giving this complex issue the respect it deserves. It is an issue where we are unclear about the applicable law (SC has never ruled on the issue of whether a President can conduct warrantless surveillance without following the statutory scheme created by Congress and the President to regulate it) and a situation where we are still not aware of all the underlying facts. Knowing that, how can you assert that the issues are simple and "not even close"?

[Yonivore]

Here is my short response:

1) Prior to FISA, the president had the constitutional authority to conduct warrantless searches such as the type done by the NSA Program. None of the case law cited by the PLLPs change this universally held legal opinion supported by case law mentioned above and, in fact, supported by "VIRTUALLY EVERY COURT THAT HAD ADDRESSED THE ISSUE..." if FISC is to be believed.

Yes, because prior to FISA there was little statutory authority detailing the manner in which the President may gather foreign intelligene. This is why many people are arguing that the pre-FISA cases do not apply. Those cases were dealing with the President's powers in the absence of statutory authority.

2) Congress cannot pass a law that diminishes or removes a constitutional power of the executive branch. That is a universally accepted principle of constitutional law.

This statement is misleading. FWD addressed this in his post. Here is the quote --

To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. As Justice Jackson famously explained in his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power most vulnerable to attack and in the least favorable of all constitutional postures." Id. at 640.

Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance.[7] FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights. (For example, although FISA generally requires judicial approval for electronic surveillance of persons within the United States, it permits the executive branch to install a wiretap immediately so long as it obtains judicial approval within seventy-two hours. 50 U.S.C. § 1805(f).)

[I]3) FISA is a law passed by Congress and, therefore, no matter what anyone says, PLLP or not -- is incapable of rendering a President's constitutional power illegal. Period. End of argument. It's not even close.

See response to 2.

Also, if you actually took the time to read Sealed Case No. 02-001, you would realize that the issue that was decided in that case has nothing to do with this current debate. People like yourself, and whoever wrote the blog that you stole argument from, mention the case because of that one statement where they discuss Truong. That statement is mere dicta and as such, is non-binding.

Contrary to your assertion, the PLLP, as you call them, do discuss Sealed Case No. 02-001 and Truong. Here is the analysis --

Three years ago, the FISA Court of Review suggested in dictum that Congress cannot "encroach on the President's constitutional power" to conduct foreign intelligence surveillance. In re Sealed Case No. 02-001, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review, however, did not hold that FISA was unconstitutional, nor has any other court suggested that FISA's modest regulations constitute an impermissible encroachment on presidential authority. The FISA Court of Review relied upon United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that court did not suggest that the President's powers were beyond congressional control. To the contrary, the Truong court indicated that FISA's restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President") (emphasis added).
But FISA also does not require the President to use it, either...particularly if, as the FISC said, it encroaches on his article II powers.

No one suggested FISA was unconstitutional. Just that it didn't apply here.

[Oh, Gee!!]

Again, Yoni, I am not saying that my word is the final word on this issue. I just don't feel that you are giving this complex issue the respect it deserves. It is an issue where we are unclear about the applicable law and a situation where we are still not aware of all the underlying facts. Knowing that, how can you assert that the issues are simple and "not even close"?


Because he's a law enforcement officer, and an EMT, and he works around lawyers all day, and he's forgotten more about any subject than you will ever know.

[Mr. Peabody]

But FISA also does not require the President to use it, either...particularly if, as the FISC said, it encroaches on his article II powers.

No one suggested FISA was unconstitutional. Just that it didn't apply here.

That's funny because you spent a good part of your previous post attacking FISA




1) Prior to FISA, the president had the constitutional authority to conduct warrantless searches such as the type done by the NSA Program. None of the case law cited by the PLLPs change this universally held legal opinion supported by case law mentioned above and, in fact, supported by "VIRTUALLY EVERY COURT THAT HAD ADDRESSED THE ISSUE..." if FISC is to be believed.

2) Congress cannot pass a law that diminishes or removes a constitutional power of the executive branch. That is a universally accepted principle of constitutional law.

3) FISA is a law passed by Congress and, therefore, no matter what anyone says, PLLP or not -- is incapable of rendering a President's constitutional power illegal. Period. End of argument. It's not even close.

[Mr. Peabody]

But FISA also does not require the President to use it, either...particularly if, as the FISC said, it encroaches on his article II powers.

No one suggested FISA was unconstitutional. Just that it didn't apply here.

And you know this because you are aware of the underlying details of the NSA program?

[Oh, Gee!!]

And you know this because you are aware of the underlying details of the NSA program?


but we're at war with teh terrorism, prez declared it. Next he'll declare war on drugs, poor people, democrats, etc.

[xrayzebra]

^^We aren't at war?

[FromWayDowntown]

I'm with Mr. Peabody in the belief that the issue is far from decided. I will accede to the possibility that it may ultimately be decided in the President's favor. I think it's a close call, but I believe in the primacy of Constitutional liberties and believe that existing law amply supports an argument that the NSA program is unconstitutional because it infringes upon the requirements of the 4th Amendment.

What gets me is the unwillingness to acknowledge the fact that this issue necessarily presents a close call, and that a decision of the issue will (if decided by the Supreme Court) be unlikely to gain a unanimous vote.

Mr. Peabody has done an excellent job summing up the argument to counter Yoni's.

[as an aside, I find it interesting that the fact that nobody posted for approximately 12 hours somehow gave Yoni a right to claim victory in the argument -- notwithstanding (or apparently disregarding) the fact that some of us have other obligations that prohibit non-stop posting to this forum. (I was in a day-long meeting and went to bed early last night; I guess by tending to those obligations, I lost?). That is some kind of precedent -- I'll have to pocket that to use when the tables are turned.]

As to the argument itself, I find it curious that Yoni's singular attack on the argument that I've proposed to counter the argument he co-opted from a still unnamed source, is that it is "a technical legal argument." I have no idea, despite the fact that I practice law in state and federal appellate courts with some success, what "a technical legal argument" is. Lawyers routinely argue for the recognition of particular rules in cases lacking direct authority by relying on analogous authority to suggest an outcome, or by seeking to distinguish existing authority for the same means. It is a very rare occurrence, for example, that a case reaches the United States Supreme Court with controlling and non-distinguishable precedent on the precise issue raised by the case. Were that a regular occurrence, the Supreme Court wouldn't be deciding many cases. If by "a technical legal argument," Yoni means one that borrows from a line of cases to suggest that the holdings point to a governing rule in a particular case -- and if in using the term "technical legal argument" in a pejorative sense, Yoni means to suggest that such arguments are untenable -- then I'd suggest that Yoni has a rather myopic (and incorrect) view of how the legal system works.

Nevertheless, the argument is more important than such bickering.

I would argue that the one issue that does not even present a close call in this circumstance is Congressional rule making authority and the constitutionality of FISA. It is interesting to note that the White House and the Attorney General (and I'm sure the very learned General Hayden, whose credentials to offer legal analysis are still unclear to me) have offered among their arguments one that FISA was implicitly (but not expressly) repealed by the AUMF. In other words, it would seem, to some extent that the Administration's means to circumvent the effect FISA is to suggest that it no longer exists, at least to some extent. That argument makes some sense -- though controlling precedent makes it unlikely to succeed -- because if FISA is constitutional and remains in effect, that law would seem to trump the pre-FISA case law suggesting that Presidential power is somehow non-contiguous with the requirements of the 4th Amendment. Even the much ballyhooed statement in Duggan seems to acknowledge the line of demarcation between cases decided before and after FISA's enactment -- while Yoni highlights the remainder of this paragraph, it is the first clause that is likely the most significant:


United States v. Duggan[/i]]Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

Duggan, then, recognizes that the congressional decision to enact FISA is a significant development in determining whether Article II vests the President with an implicit power that is beyond Congress's express Article I power. The argument made in my post builds from that observation to note that in cases involving separation of powers issues, express authority afforded to one branch will generally prevail over a claim of implied authority by another. Again, that is not a controversial issue.

The question remaining from the standpoint of legal authority is the effect of Sealed Case's dicta, which certainly is not controlling authority in any sense of that term. It's curious to me that if Sealed Case is somehow dispositive of this issue, it is not a more prominent part of the White House's defense of its program. If it truly were the end-all-be-all of this issue, there would be no need to suggest (even as an alternative) that FISA was inapplicable here or that FISA had been somehow repealed, since, ostensibly, FISA would have been ineffective to curtail the President's inherent authority.

[Yonivore]

[as an aside, I find it interesting that the fact that nobody posted for approximately 12 hours somehow gave Yoni a right to claim victory in the argument -- notwithstanding (or apparently disregarding) the fact that some of us have other obligations that prohibit non-stop posting to this forum. (I was in a day-long meeting and went to bed early last night; I guess by tending to those obligations, I lost?). That is some kind of precedent -- I'll have to pocket that to use when the tables are turned.]
Point taken. Being involved in what I thought was a good dialogue with you, over the issue, I used the taunt to keep the thread at the top so it wouldn't be bumped to page two.


As to the argument itself, I find it curious that Yoni's singular attack on the argument that I've proposed to counter the argument he co-opted from a still unnamed source, is that it is "a technical legal argument." I have no idea, despite the fact that I practice law in state and federal appellate courts with some success, what "a technical legal argument" is. Lawyers routinely argue for the recognition of particular rules in cases lacking direct authority by relying on analogous authority to suggest an outcome, or by seeking to distinguish existing authority for the same means. It is a very rare occurrence, for example, that a case reaches the United States Supreme Court with controlling and non-distinguishable precedent on the precise issue raised by the case. Were that a regular occurrence, the Supreme Court wouldn't be deciding many cases. If by "a technical legal argument," Yoni means one that borrows from a line of cases to suggest that the holdings point to a governing rule in a particular case -- and if in using the term "technical legal argument" in a pejorative sense, Yoni means to suggest that such arguments are untenable -- then I'd suggest that Yoni has a rather myopic (and incorrect) view of how the legal system works.
No, my point is you presented no argument with relevant court citations. Not only that, you didn't refute those that were presented and obviously relevant to the question.


Nevertheless, the argument is more important than such bickering.
Agreed and I apologize for the taunt.


I would argue that the one issue that does not even present a close call in this circumstance is Congressional rule making authority and the constitutionality of FISA.
No one is arguing that FISA is unconstitutional. Only that FISA is incapable of negating the President's constitutional prerogative vis-a-vis warrantless searches for foreign intelligence.


It is interesting to note that the White House and the Attorney General (and I'm sure the very learned General Hayden, whose credentials to offer legal analysis are still unclear to me) have offered among their arguments one that FISA was implicitly (but not expressly) repealed by the AUMF. In other words, it would seem, to some extent that the Administration's means to circumvent the effect FISA is to suggest that it no longer exists, at least to some extent. That argument makes some sense -- though controlling precedent makes it unlikely to succeed -- because if FISA is constitutional and remains in effect, that law would seem to trump the pre-FISA case law suggesting that Presidential power is somehow non-contiguous with the requirements of the 4th Amendment. Even the much ballyhooed statement in Duggan seems to acknowledge the line of demarcation between cases decided before and after FISA's enactment -- while Yoni highlights the remainder of this paragraph, it is the first clause that is likely the most significant:

Duggan, then, recognizes that the congressional decision to enact FISA is a significant development in determining whether Article II vests the President with an implicit power that is beyond Congress's express Article I power. The argument made in my post builds from that observation to note that in cases involving separation of powers issues, express authority afforded to one branch will generally prevail over a claim of implied authority by another. Again, that is not a controversial issue.

The question remaining from the standpoint of legal authority is the effect of Sealed Case's dicta, which certainly is not controlling authority in any sense of that term. It's curious to me that if Sealed Case is somehow dispositive of this issue, it is not a more prominent part of the White House's defense of its program. If it truly were the end-all-be-all of this issue, there would be no need to suggest (even as an alternative) that FISA was inapplicable here or that FISA had been somehow repealed, since, ostensibly, FISA would have been ineffective to curtail the President's inherent authority.
Obviously we disagree. And, as FISC pointed out, virtually every court to have decided the issue disagrees with you as well.

As far as the administration's reliance on AUMF, I tend to agree it does not help their position...Nor does it harm it. I believe, and there's no way for me to know this, that the administration raised the AUMF issue in an attempt to end the issue and not have to reveal any more about the program than was absolutely necessary. Discussing the relevant case law might unnecessarily reveal more details than is desired.

Just a guess.

[FromWayDowntown]

No, my point is you presented no argument with relevant court citations. Not only that, you didn't refute those that were presented and obviously relevant to the question.

But I did. If case law says one thing and a statute is enacted that contradicts the case law, the case law is no longer authority for the argument. Your argument is, as I think it must be, that the President's power to engage in domestic surveillance without a warrant is, in some circumstances, incapable of Congressional control. The case finding FISA constitutional necessarily upholds the power of Congress to curb warrantelss surveillance, at least in some circumstances.

In that sense, the intervening act of passing FISA renders that case law, for most intents and purposes, irrelevant. That's why I think the important language in Duggan is the phrase "Prior to the enactment of FISA." That phrase acknowledges that all that the courts have said about the power you espouse is tempered by an intervening Congressional action. Accordingly, it wasn't necessary for those who've made my argument to counter the earlier holdings on a case-by-case basis: FISA did that for them.

What the argument I've co-opted says is that there is no authority, in light of FISA to support the President's direct attack on the 4th Amendment. It goes on to say that the authority that is relevant to the broader separation of powers question tends to support a conclusion that is at odds with the argument the President has made. There's absolutely nothing unusual about that mode of argument in this sort of circumstance.


Obviously we disagree. And, as FISC pointed out, virtually every court to have decided the issue disagrees with you as well.

You're right -- all that's left is the meaning and import of the FISC decision. And you're also right that it's obvious that we disagree, though I think the disagreement stems entirely from view of the role and definition of precedent. As a lower court decision -- and dictum at that -- the opinion in Sealed Case is, at best, persuasive authority to support the position taken by the White House. It, however, is not controlling authority, even if it could be characterized as a holding, because it can certainly be overruled in subsequent cases addressing that issue. And it would seem somewhat likely to face stern review, since it is difficult to reconcile the argument advanced by the White House against the express limits on Presidential surveillance for the purposes of foreign intelligence gathering imposed by FISA. I will concede again that it is quite possible that the program could be upheld (if a plaintiff can make a plausible standing argument), but I'm swayed by the authority that suggests strongly that the President's power is somewhat limited with regard to this issue.


Agreed and I apologize for the taunt.

I appreciate the sentiment and certainly agree with you that this is an interesting argument and a good dialogue. I'm happy to keep it going to the extent my schedule will allow for rapid responses.

[Yonivore]

But I did. If case law says one thing and a statute is enacted that contradicts the case law, the case law is no longer authority for the argument. Your argument is, as I think it must be, that the President's power to engage in domestic surveillance without a warrant is, in some circumstances, incapable of Congressional control. The case finding FISA constitutional necessarily upholds the power of Congress to curb warrantelss surveillance, at least in some circumstances.

In that sense, the intervening act of passing FISA renders that case law, for most intents and purposes, irrelevant. That's why I think the important language in Duggan is the phrase "Prior to the enactment of FISA." That phrase acknowledges that all that the courts have said about the power you espouse is tempered by an intervening Congressional action. Accordingly, it wasn't necessary for those who've made my argument to counter the earlier holdings on a case-by-case basis: FISA did that for them.

What the argument I've co-opted says is that there is no authority, in light of FISA to support the President's direct attack on the 4th Amendment. It goes on to say that the authority that is relevant to the broader separation of powers question tends to support a conclusion that is at odds with the argument the President has made. There's absolutely nothing unusual about that mode of argument in this sort of circumstance.
I understand your argument. I'm merely pointing out that, even after FISA, the FISC held that warrantless searches for foreign intelligence were within the constitutional authority of the President under article II.


You're right -- all that's left is the meaning and import of the FISC decision. And you're also right that it's obvious that we disagree, though I think the disagreement stems entirely from view of the role and definition of precedent. As a lower court decision -- and dictum at that -- the opinion in Sealed Case is, at best, persuasive authority to support the position taken by the White House. It, however, is not controlling authority, even if it could be characterized as a holding, because it can certainly be overruled in subsequent cases addressing that issue. And it would seem somewhat likely to face stern review, since it is difficult to reconcile the argument advanced by the White House against the express limits on Presidential surveillance for the purposes of foreign intelligence gathering imposed by FISA. I will concede again that it is quite possible that the program could be upheld (if a plaintiff can make a plausible standing argument), but I'm swayed by the authority that suggests strongly that the President's power is somewhat limited with regard to this issue.
Which all leads me to the question of whether or not it was necessary to compromise a valuable intelligence asset based on such a slim ambiguity. You, yourself, allowed the president would probably prevail if the argument ever carried forward in court.

Therefore, to continue dragging the issue out only diminishes the president's ability to detect and thwart enemyt attacks.

I would be in complete agreement for the need to review and settle the issue if there had been allegations the President had used the power to conduct warrantless searches for polital, partisan, or personal reasons. No one is alleging that nor are there any plaintiffs stepping forward to claim they were injured. No one is even calling for an end to the program.

FISA was intended to prevent the type of eavesdropping that occurred during Nixon's administration -- undertook for personal, political, or partisan reasons. The NSA Program has none of those characteristics and I believe the whole issue would have long ago faded had there been a Democratic President in office.

All the hullabaloo is over the possibility that the THIS president might misuse this authority.

The administration has stated, unequivocally, the NSA Program is an exception to FISA. They've stated they use FISA when appropriate and that they use the NSA Program when FISA cannot be used. There is no evidence to the contrary. To force them to explain this in any detail, publicly, threatens to further compromise their methods. I think the revelation of the program has harmed our ability to protect ourselves...I also think further discussions continue to deteriorate the program's effectiveness. I think that's unconscienable.

We've already seen signs that al Qaeda did not realize the breadth of the program. A remarkable surge in the purchase of untraceable pay-as-you go cell phones. General Hayden's response to the supposition that al Qaeda already assumed the U.S. was listening in on their conversations is also telling; "Well, they certainly didn't act like they believed we were listening sometimes."

And, completey irrelevant to the constitutionality or legality of the program, those who leaked it absolutely violated the law and should be prosecuted.

In the paraphrased words of John Kerry, "This is the wrong case, over the wrong issue, at the wrong time." I would have been a different story had the president's detractors produced an innocent "victim" of the NSA eavesdropping program. But, in the absence of that, and given the value of the information received by such an effort, it seems foolish to have a public argument over the constitutionality or legality of something that has been taken for granted for so long.


I appreciate the sentiment and certainly agree with you that this is an interesting argument and a good dialogue. I'm happy to keep it going to the extent my schedule will allow for rapid responses.
In the future, I'll just bump it.

[Mr. Peabody]

As per Fox News and the White House, the NSA program that has come under scrutiny will now be known as the "terrorist surveillance program."

From here forward, anyone making arguments against the NSA program will also be making arguments against "terrorist surveillance."

This is the same administration that gave us the "Patriot" Act.

I am waiting for the "Taking Care of Your Grandparents" Social Security Reform Act and the "Helping Cute Kids" School Voucher Program.

[SA210]

As per Fox News and the White House, the NSA program that has come under scrutiny will now be known as the "terrorist surveillance program."

From here forward, anyone making arguments against the NSA program will also be making arguments against "terrorist surveillance."

This is the same administration that gave us the "Patriot" Act.

I am waiting for the "Taking Care of Your Grandparents" Social Security Reform Act and the "Helping Cute Kids" School Voucher Program.
Or the changing of the "estate tax" to the "death tax" as Bill Maher says. The Republicans are so much better at the word game.

[Mr. Peabody]

Or the changing of the "estate tax" to the "death tax" as Bill Maher says. The Republicans are so much better at the word game.

Right, the "death" tax and "homocide" bombers. :lol

[SA210]

:lol at "terrorist surveillance program." What a joke.

[Yonivore]

As per Fox News and the White House, the NSA program that has come under scrutiny will now be known as the "terrorist surveillance program."

From here forward, anyone making arguments against the NSA program will also be making arguments against "terrorist surveillance."

This is the same administration that gave us the "Patriot" Act.

I am waiting for the "Taking Care of Your Grandparents" Social Security Reform Act and the "Helping Cute Kids" School Voucher Program.
Whatever works.

[Yonivore]

So, what about those Prestigious Lawyers and Law Professors?

Several former Clinton administration officials are among the group of “scholars of constitutional law and former government officials” (a.k.a. "prestigious lawyers and law professors") who submitted that letter to Congress asserting that the Bush administration had “fail[ed] to identify any plausible legal authority” for the NSA program that does not comply with the warrant procedure mandated by Congress in FISA (the Foreign Intelligence Surveillance Act of 1978).

One of those former Clinton administration officials is Walter Dellinger.

But in 1994, Dellinger was singing a different tune. As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

The opinion is excerpted at some length in a letter being submitted to the Judiciary Committee by Bryan Cunningham. Maybe not a "prestigious lawyer or law professor, but a terrific lawyer, nonetheless, who worked in both the Clinton and Bush administrations (in the NSA, CIA and DOJ). That letter is now available at the website of Bryan’s lawfirm, www.morgancunningham.net (http://www.morgancunningham.net/downloads/article_18.pdf).

The letter demonstrates that settled legal principles, developed by the federal courts since the Nation’s founding and cited by administrations of both political parties, most assuredly including the Clinton administration, emphasize that the President of the United States has plenary authority in the matter of foreign intelligence collection (and foreign affairs generally). Bryan also illustrates that separation-of-powers principles obligate the President to decline to enforce (i.e., to ignore) congressional statutes that encroach on or purport to limit the executive’s constitutional powers – just as FISA does. This, too, is a position the Justice Department has aggressively defended under both Republican and Democrat administrations.

The entire Cunningham letter is well worth reading. Especially noteworthy is Dellinger’s 1994 OLC opinion, which states, for example:


"… Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

"First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has 'the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional.' Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).

"Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions)."
Also particularly interesting given the number of Clinton officials who signed the afore-described letter condemning President Bush’s alleged flouting of the FISA wiretap statute, is another opinion issued by the Clinton administration’s OLC – this one in 2000. It’s discussed at length in the Cunningham letter. The Clinton OLC asserted, among other things, that even though the criminal wiretap statute (18 USC Sec 2510 et seq.) purports to limit the executive branch’s ability to disclose wiretap information, the President was free to ignore those statutory provisions where limiting “the access of the President and his aides to information critical to national security or foreign relations ... would be unconstitutional as applied in those circumstances.”

[ChumpDumper]

Well no shit Presidents want more power. They've been trying to get more ever since it was curtailed after Nixon. The question is whether it's a good idea to go back to Nixon's imperial presidency. You obviously think it's the greatest idea ever, but wold you be plagiarizing blogs so strenuously for President Hilary?

[Yonivore]

Well no shit Presidents want more power. They've been trying to get more ever since it was curtailed after Nixon. The question is whether it's a good idea to go back to Nixon's imperial presidency. You obviously think it's the greatest idea ever, but wold you be plagiarizing blogs so strenuously for President Hilary?
I don't see how you can equate the NSA Program in question to the political spying done by Nixon or Clinton.

And, no, I wouldn't be so vigorously defending Hillary Clinton. She hired Craig Livingstone and was responsible for ruining the careers of those fired from the White House Travel Office...all for political reasons. I don't trust her.

Even so, how 'bout arguing against the points made instead of bloviating over things that aren't relevant?

[ChumpDumper]

I don't see how you can equate the NSA Program in question to the political spying done by Nixon or Clinton.Power - oversight = abuse. Without exception.
And, no, I wouldn't be so vigorously defending Hillary Clinton.But you would accept her having all kinds of unchecked power as President because that's what you believe they should have. As long as we say we're at war -- when could we declare we aren't anymore?

Your failure to see the relevance continues to amaze.

[Yonivore]

Power - oversight = abuse. Without exception.
Except it isn't without exception. This administration uses the NSA Program for limited cases and continues to rely on FISA for those that are relevant.


But you would accept her having all kinds of unchecked power as President because that's what you believe they should have. As long as we say we're at war -- when could we declare we aren't anymore?

Your failure to see the relevance continues to amaze.
un huh.

[ChumpDumper]

This administration uses the NSA Program for limited casesSays who?

Them?

[xrayzebra]

^^I do. Keep talking and we will keep listening. You really do have a good
forum name: CHUMPDUMPer. Fits you to a "T". You really think someone would
be interested in what you have to say on a phone. I don't think so.

[Yonivore]

Says who?

Them?
Do you know of someone that disputes this?

[George W Bush]

I believe the law says we need a court order to wiretap even when chasing down terrorists, and in saying that, I believe when we are doing warrantless wiretaps we have violated no laws.

[ChumpDumper]

Do you know of someone that disputes this?Do you know of someone who could possibly prove them stop them if they chose to spy on someone else?

[Yonivore]

Do you know of someone who could possibly prove them stop them if they chose to spy on someone else?
Huh? Want to try that in English?

[George W Bush]

Huh? Want to try that in English?

I don't know enlglish.

[RandomGuy]

Except it isn't without exception. This administration uses the NSA Program for limited cases and continues to rely on FISA for those that are relevant.


un huh.

Perhaps you would have trusted Nixon to do the right thing too...
:rolleyes

[RandomGuy]

I find it astounding at the number of rights that so-called conservatives are willing to give up, just because GW asked them to. Well maybe not asked, just took.

The same people who bitch and moan about the gov'mint they don't trust to act responsibly takin' their paychecks suddenly think that same government will suddenly act responsibly if you give it all sorts of power to bypass the protections for rights that have been the cornerstone of our society for centuries.

[ChumpDumper]

Huh? Want to try that in English?Put in an "or" jackass. I'll let you figure out where.

Should take about a week.

[FromWayDowntown]

I could care less if other Administrations did precisely the same thing. If the arguments espoused by certain advocates could be characterized as contradictory (I prefer to see them as nuanced), that doesn't settle the Constitutional and public policy issues implicated in this situation. If it's unconstitutional, it was unconstitutional for the Clinton Administration, just as it is for the Bush Administration.

What continues to amuse me is the suggestion that this isn't even a close question. Even lawyers in the Justice Department aren't unanimously sold on the constitutionality of the program; if Bush's lawyers can't agree about this, how can it be a simple question? I've admitted before (and will admit again now) that the program may ultimately be found to be constitutional -- but I think it will take a a close decision by a divided Supreme Court that will find the issue to be anything but a simple question.

[A-Train]

I find it astounding at the number of rights that so-called conservatives are willing to give up, just because GW asked them to. Well maybe not asked, just took.

The same people who bitch and moan about the gov'mint they don't trust to act responsibly takin' their paychecks suddenly think that same government will suddenly act responsibly if you give it all sorts of power to bypass the protections for rights that have been the cornerstone of our society for centuries.

I'm fairly politically apathetic, but the feds were up our ass well before Bush came on the scene. It's the same old cycle, the drones for the party in power defend everything and the drones for the party out of power make every move out to be the end of the nation as we know it. Here's an idea, stop droning on and go fuck yourselves. What passes for political discourse in this country is either a proposition that Bush is the greatest president of all time or that he's the second coming of Hitler. This is why such a substantial number of Americans don't bother to vote in any election.

[RandomGuy]

I'm fairly politically apathetic, but the feds were up our ass well before Bush came on the scene. It's the same old cycle, the drones for the party in power defend everything and the drones for the party out of power make every move out to be the end of the nation as we know it. Here's an idea, stop droning on and go fuck yourselves. What passes for political discourse in this country is either a proposition that Bush is the greatest president of all time or that he's the second coming of Hitler. This is why such a substantial number of Americans don't bother to vote in any election.

I agree. But the real problem is that your apathy leads to the drones staying in power.

Stop checking out of the political process, get off your lazy ass and do something. Whiners and conspiracy nuts who complain about what "they" are doing piss me off to no end. You want change, do SOMETHING.

[George W Bush]

Don't speak for me Yoni boy, I was for a court order before I was agianst it.

I'm George W Bush and I approve this message. :tu

[Yonivore]

Put in an "or" jackass. I'll let you figure out where.

Should take about a week.
That's not the point. The administration shouldn't have to reveal a top secret national security program simply to disabuse you of the notion they may be using it improperly.

Why didn't the traitorous NSA leakers provide a specific example of unconstitutional or illegal eavesdropping when they committed their treason? Because none exists. Because the administration is using the program exactly as they claim they are -- to eavesdrop on international communications between known terrorists and people inside the U.S.

If this weren't true, the people who leaked the program should have provided evidence of wrongdoing or kept their traitorous mouths shut. As it is, they knew people like you and the liberal media would speculate and make all sorts of far-fetched accusations without a shred of proof.

In the process, you and they are running a fairly high risk of compromising our ability to detect and stop terrorist attacks. Thank you very much.

Oh, if you're going to fuck up a post -- you shouldn't try to cover your illiteracy by forcing other people to tell you what you said.

[Yonivore]

I could care less if other Administrations did precisely the same thing. If the arguments espoused by certain advocates could be characterized as contradictory (I prefer to see them as nuanced), that doesn't settle the Constitutional and public policy issues implicated in this situation. If it's unconstitutional, it was unconstitutional for the Clinton Administration, just as it is for the Bush Administration.

What continues to amuse me is the suggestion that this isn't even a close question. Even lawyers in the Justice Department aren't unanimously sold on the constitutionality of the program; if Bush's lawyers can't agree about this, how can it be a simple question? I've admitted before (and will admit again now) that the program may ultimately be found to be constitutional -- but I think it will take a a close decision by a divided Supreme Court that will find the issue to be anything but a simple question.
My point is that virtually every court that has ever considered the question (pre- and post-FISA) has held the President has a constitutional prerogative to conduct warrantless searched in matters of foreign intelligence. Period.

If you take the administration's claims at face value -- this is exactly what they were (and are) doing. Add to that the general consensus it is reasonable to want to know who, in the U.S., is talking to suspected terrorists abroad and the case for such a program is only strengthened.

Therefore, it isn't a close question.

The problems do not arise over the constitutional question of the president's authority to do so, this is pretty much established. The problems arise when the president's opponents start to obfuscate and exaggerate what they know about the program into scenarios that may well be legally and constitutionally questionable. But they do so without any justification.

Absent any actual evidence of their suppositions, they remain just that and -- this administration shouldn't be forced to ruin a vital national security asset just so you and his opponents can be satisfied that what he is doing is precisely what he claims he is doing. Particularly when you can't cite an example that refutes that.

You should be forced to provide some factual evidence of unconstitutional behavior or illegal acts before the President should have to answer any of your questions about this program.

That's my point.

[George W Bush]

Hey Yoni boy, you seem like Vashie and xrayhorsy,
little girls who won't go fight this war themselves just like me. Thanks for supporting me by the way, I appreciate that, and by the way you have my appreciation.

Heck of a job Yoni boy :tu

God Bless America :tu

[George W. Bush]

^this imposter doesnt speak for my people

your lack of a "." and use of emotcons is something a lefty would be caught doing

[Cant_Be_Faded]

hyeah big zak jacks it to GWB

[George W Bush]

^this imposter doesnt speak for my people

your lack of a "." and use of emotcons is something a lefty would be caught doing

Hey there sonny, stop usin' my name there.
And they don't call me Lefty,
however, I did get in a fight with someone named Lefty before,
he hit me with a right.
What can I say, I was in the middle,
which would make me a moderate.
Next day I woke up and declared war on all nations who harbor left handed people.

I'm George W Bush and I approve this message. :tu

[George W. Bush]

he he. mehmehmhem... a middle name can't be one letters, that would be dispronouncable to the humans ears

[George W Bush]

he he. mehmehmhem... a middle name can't be one letters, that would be dispronouncable to the humans ears


I don't know spanish.

[FromWayDowntown]

The problems do not arise over the constitutional question of the president's authority to do so, this is pretty much established. The problems arise when the president's opponents start to obfuscate and exaggerate what they know about the program into scenarios that may well be legally and constitutionally questionable. But they do so without any justification.

So, lawyers in the Bush Justice Department who adamantly disagree with your position that this program is within the scope of the President's Article II powers are just partisan hacks who are out to undermine the President? I think it's rather remarkable to suggest that some very smart people, who have devoted their professional lives to studying the Constitution, are somehow clueless in its application in this circumstance. Frankly -- and I don't mean this to be offensive -- I'll trust their arguments (on both sides of the debate) before I'll stand on my own or trust yours, Yoni. I certainly respect your opinion and understand your viewpoint, but I don't think there's anything other than partisanship that guides your assessment of the debate's merits.

And ultimately, my point isn't that the President's detractors are right -- though I tend to agree with the general proposition that warrantless surveillance is anathema to the 4th Amendment, and that the 4th Amendment should trump any non-expressed Article II powers -- it's that there is significant disagreement among intelligent people who are expert in Constitutional law. There's significant disagreement within the Administration (not exactly an anti-Bush crowd) and the President's party. The existence of that significant disagreement, even among the President's supporters, would seem to suggest that the question is far-from-settled in any legal sense and that its ultimate resolution is less-than-certain.

[Crookshanks]

The poster "George W. Bush" is a moron who seems to think he is cute trying to imitate the President. Give it up - you just sound stupid and it certainly isn't funny.

And, before all you other anti-Bush people start making comments about how stupid the real President is, just keep your mouth shut - I don't want to hear it - we get to read it several times in every thread on this forum!

[Yonivore]

So, lawyers in the Bush Justice Department who adamantly disagree with your position that this program is within the scope of the President's Article II powers are just partisan hacks who are out to undermine the President? I think it's rather remarkable to suggest that some very smart people, who have devoted their professional lives to studying the Constitution, are somehow clueless in its application in this circumstance. Frankly -- and I don't mean this to be offensive -- I'll trust their arguments (on both sides of the debate) before I'll stand on my own or trust yours, Yoni. I certainly respect your opinion and understand your viewpoint, but I don't think there's anything other than partisanship that guides your assessment of the debate's merits.

And ultimately, my point isn't that the President's detractors are right -- though I tend to agree with the general proposition that warrantless surveillance is anathema to the 4th Amendment, and that the 4th Amendment should trump any non-expressed Article II powers -- it's that there is significant disagreement among intelligent people who are expert in Constitutional law. There's significant disagreement within the Administration (not exactly an anti-Bush crowd) and the President's party. The existence of that significant disagreement, even among the President's supporters, would seem to suggest that the question is far-from-settled in any legal sense and that its ultimate resolution is less-than-certain.
I don't know to whom or what you're referring, exactly; but, if there are people who disagree with the constitutionality of the President to authorize an NSA Program to eavesdrop on international communications between known or suspected terrorists and others, either in or out of the U.S. in order to gain foreign intelligence, then I would say they're either basing their opinion on the suppositions of others or they're not listening to the administration.

Two questions for you, FWD.

1) Does the President have article II powers, under the U. S. Constitution, to intercept, for foreign intelligence purposes, communications -- of any type, from any person, to any person, any where in the world?

2) Has there been any evidence (anecdotal, circumstantial, or otherwise) to suggest the President has engaged in "unreasonable" searches against U. S. Citizens?

I think the "disagreement" both within and without the administration are largely due to the smoke and mirrors obfuscation of the program put forth by the administration's detractors.

[George W Bush]

The poster "George W. Bush" is a moron who seems to think he is cute trying to imitate the President. Give it up - you just sound stupid and it certainly isn't funny.

And, before all you other anti-Bush people start making comments about how stupid the real President is, just keep your mouth shut - I don't want to hear it - we get to read it several times in every thread on this forum!

I'm glad you realize that. I have no "." on my "W". That other poser needs ta get.

Besides people like me.

http://spurstalk.com/forums/showthread.php?t=34334

And my poll numbers show that, and I don't listen to polls by the way.

God Bless America :tu

[Yonivore]

The poster "George W. Bush" is a moron who seems to think he is cute trying to imitate the President. Give it up - you just sound stupid and it certainly isn't funny.

And, before all you other anti-Bush people start making comments about how stupid the real President is, just keep your mouth shut - I don't want to hear it - we get to read it several times in every thread on this forum!
Crookshanks, you should learn to just use the ignore feature. Posts such as yours only invites more of the same from those about which you're complaining.

[George W Bush]

Crookshanks, you should learn to just use the ignore feature. Posts such as yours only invites more of the same from those about which you're complaining.

Now Yoni boy, keep actin tuff even though your really just a lil girl.
You remind me of me. :tu

[Crookshanks]

DONE! George W Bush is now on my ignore list!

[A-Train]

I agree. But the real problem is that your apathy leads to the drones staying in power.

Stop checking out of the political process, get off your lazy ass and do something. Whiners and conspiracy nuts who complain about what "they" are doing piss me off to no end. You want change, do SOMETHING.

"Change"? Change is illusory. I have better things to do with my time than to waste it on the "political process".

[George W Bush]

lol at George W Bush, George W. Bush, and Republicandestino

You just remember elcamino,

I'm the one that people like on this basket forum.
Thanks for your support.
God Bless America :tu

http://spurstalk.com/forums/showthread.php?t=34334

[RandomGuy]

"Change"? Change is illusory. I have better things to do with my time than to waste it on the "political process".

Heh, I guess that makes the manufacturers of hand lotion and tissues happy...
:lol

If you believe you are powerless, that is a self-fulfilling prophecy.

That way you don't have to take any responsibility for the way things are. Nihilism is not a form of government.

Talk about self-centered and spoiled, jeez.

[A-Train]

Good, I'll leave it to you and the rest of the partisan clusterfuck to yell at each other 24/7/365. It seems rather self-centered to believe that your impact is of any consequence. Maybe you need to load up on the Charmin.

[gtownspur]

lol at George W Bush, George W. Bush, and Republicandestino


Forum cheerleader,....

elpimpo:"present!"

[xrayzebra]

So, lawyers in the Bush Justice Department who adamantly disagree with your position that this program is within the scope of the President's Article II powers are just partisan hacks who are out to undermine the President? I think it's rather remarkable to suggest that some very smart people, who have devoted their professional lives to studying the Constitution, are somehow clueless in its application in this circumstance. Frankly -- and I don't mean this to be offensive -- I'll trust their arguments (on both sides of the debate) before I'll stand on my own or trust yours, Yoni. I certainly respect your opinion and understand your viewpoint, but I don't think there's anything other than partisanship that guides your assessment of the debate's merits.

And ultimately, my point isn't that the President's detractors are right -- though I tend to agree with the general proposition that warrantless surveillance is anathema to the 4th Amendment, and that the 4th Amendment should trump any non-expressed Article II powers -- it's that there is significant disagreement among intelligent people who are expert in Constitutional law. There's significant disagreement within the Administration (not exactly an anti-Bush crowd) and the President's party. The existence of that significant disagreement, even among the President's supporters, would seem to suggest that the question is far-from-settled in any legal sense and that its ultimate resolution is less-than-certain.

First and foremost. These calls are intercepted from/to outside the U.S.
They are not calls made within the U.S.

Second. We have been intercepting calls, I know for a fact, since the
1950's. Not calls within the U.S. The calls they are most interested in
are calls to/from the U.S. to/by known terrorist.

It is not illegal to do this. And I would bet my last dollar that we will
continue to do it, no matter what any court says. Proving we do may
be a little tricky, but we have plenty of other ways to get the
communications, you can take it to the bank. We are not the only
country that has monitoring capability, are we. :angel

[Yonivore]

No Checks, Many Imbalances (http://www.realclearpolitics.com/Commentary/com-2_16_06_GW.html)

vs.

Checked and Unbalanced (http://www.nationalreview.com/mccarthy/mccarthy200602161544.asp)

I believe these two opinion columns by George Will and Andrew McCarthy fairly sum up the opposing arguments in the NSA Program. I think McCarthy wins the argument hands down.

[RandomGuy]

Good, I'll leave it to you and the rest of the partisan clusterfuck to yell at each other 24/7/365. It seems rather self-centered to believe that your impact is of any consequence. Maybe you need to load up on the Charmin.

Every once in a while, there is a pretty worthwhile conversation between reasonable people.

Not often, I will admit. It *is* more fun to rag on someone through the internet than it is to have decent discussions.

BUT

Resigning any responsibility for what goes on is childish. "I can't get it my way, so I am taking my ball and going home.".

Being involved politically is far from inconsequential, and I have seen first-hand what my involvement can do. Not that I have a lot of time to spend on such things, but I have taken part in a few things with the Texas State U. Dems and actually gotten something accomplished.

One individuals contribution may not seem like much, but ten thousand people each picking up a one pound rock have just moved 5 tons in a second.

Political parties are there to provide some framework for people to band together and participate. Check out if you want, but I think the charge of me being self-centered suits you better than it does me.

[Winehole23]

good thread, good convo, really captured the legal tension of the moment and featured some legendary ST posters.

(compared with then, multi-quoting seems to have gone almost completely out of style.)



The Constitution and its protections should guide the actions of the United States government. If the government can simply ignore the precepts of the Constitution at its whim upon developing some interim justification for doing so, then I'm left to wonder whether the institution of government truly respects that document and the principles it stands for. Ultimately, I think we fight any war to protect and preserve our way of life, which is largely defined by the liberties and freedoms that the Constitution strives to protect. If we the government can ignore those liberties and freedoms in some willy-nilly fashion, then I'm not sure what good the war does. If, ultimately, Americans are asked to forfeit fundamental rights in the pursuit of war, then why not just acknowledge that the Constitution only has temporal and circumstantial relevance?

[diego]

Great thread, shame no one took yoni to task once Snowden revealed the extent of the surveilance (or making legal arguments based on "how the law is currently written" or some such nonsense :lol)

[diego]

.

But, if you're going to rely on a legal argument, isn't it necessary to actually...make a legal argument? One would think so, but neither you nor the PLLPs can be bothered to go beyond the broad questions touched on in the cases cited in the PLLPs letter. Instead, they simply denounces the administration's program because it violates the law as currently written and throw out a bunch of case law they believe people will see as supporting their position. And, they do so without specifically addressing, then refuting, the case law presented by the opposition.



I need to try that next time I get a speeding ticket. You see officer, 80 years ago there was no speed limit, I got precedent

[Winehole23]

I need to try that next time I get a speeding ticket. You see officer, 80 years ago there was no speed limit, I got precedentAfter awhile i learned that one of the quickest ways to refute Yoni was to credibly agree as far you could, until he spilled the beans against himself and hung himself with his own testimony, as he very often did.

[diego]

https://www.engadget.com/2019/06/26/nsa-aclu-improperly-collected-phone-call-records/?guccounter=1

[Winehole23]

https://www.engadget.com/2019/06/26/nsa-aclu-improperly-collected-phone-call-records/?guccounter=1Encouraging I guess that someone is clocking how often our government screws our privacy, and that the information is still public.