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or within 72 hours of doing so. wouldn't want folks thinking I have something to hide
No, he entirely ignored FISA; ergo -- ther is no FISA warrant requirement and, we've already stated our argument regarding the 4th amendment.
or within 72 hours of doing so. wouldn't want folks thinking I have something to hide
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.
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....
it, you don't get it.
From FISA oversight? Why? What do they have to hide?
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.
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.
If you can't see it, it doesn't exist.
Berkeley?
no, Barkley. Charles Barkley
I commned you on your restraint in this time of semi-retirement. Zak could learn a thing or two here.
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 Cons utional 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 cons utional 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 Cons ution 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: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.
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 uncons utional under the cir stances presented.[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.
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:[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.
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.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.
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 uncons utional. The Court upheld Hamdi's detention, while also ruling that he was en led 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:The Government maintains that no explicit congressional authorization is required, because the Executive possesses plenary authority to detain pursuant to Article II of the Cons ution. 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].
Thus, neither the language of the Cons ution 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 cons utional authority to obtain foreign intelligence information through warrantless searches. We turn now to the decisions of the federal Courts of Appeal.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.
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: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 cons utionally permissible, though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment.
We…discern no cons utional prohibition against the fifth wiretap. Section 605 of le 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.
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 sum, we hold that, in the cir stances 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.”
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:Foreign security wiretaps are a recognized exception to the general warrant requirement….
The court agreed with the government’s position: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 cons utional prerogatives in the area of foreign affairs.
The court held that warrantless searches for foreign intelligence purposes are cons utional, 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.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 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 cons utionality 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 cons utional underpinnings (or lack thereof) of the Truong test, 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 cons uted an exception to the warrant requirement of the Fourth Amendment.
That being the case, the NSA intercept program, which consists of warrantless electronic intercepts for purposes of foreign intelligence gathering, is legal.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 in bent upon the court, therefore, to determine the boundaries of that cons utional 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 cons utional 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 cons utionally reasonable.
That is the current state of the law. The federal appellate courts have unanimously held that the President has the inherent cons utional 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 Cons ution, the FISA Review Court has specifically recognized that it cannot be taken away or limited by Congressional action.
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 cons utional 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 Cons ution.” 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 cons utionally 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 cons utional 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 le 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 cir stances 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.(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 cir stances 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 le 18;
(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under cir stances 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 cir stances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.
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 Cons ution, 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 le 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.(f) Nothing contained in this chapter or chapter 121 or 206 of this le, 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.
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 cons utional power of the President as Commander in Chief. Everything else is immaterial.
This brings us back where we started, i.e., the Cons ution. The only cons utional 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 en led to rely on the law as it currently exists. And there is simply no question about the fact that under the Cons ution 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 Cons utional powers.
Okay, now please respond with arguments of equal authority or STFU.
The Administration regularly briefed Congressional leaders (from both parties) on the program.
And, he's supported that assertion with legal and cons utional citations...see below.
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
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.
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?
Are we really at war?What, you can't refute the content of the anaylsis?
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?By not giving credit, you imply it.I'm not claiming original thought
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?
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 cir stances 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 cons utional powers to do so. Then, will you admit it was damaging to national security for it ever to have been brought into the light?
Horse Hockey. What searches?
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?
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