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Then where is the limit on presidential power? What if GWB opts to use Echelon on political opponents? FISA gives the president the right to get a warrant after the fact. What's the matter with that?
...lesson is in order.
Ureasonable is the operative word. Those ready to claim it is unreasonable to eavesdrop on persons with established connections to al Qaeda secretly, please step forward.
The allegation of Presidential law-breaking rests solely on the fact that President Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.
The courts have been explicit on this point. let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:
The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."
*** "
"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's cons utional power.
Then where is the limit on presidential power? What if GWB opts to use Echelon on political opponents? FISA gives the president the right to get a warrant after the fact. What's the matter with that?
I believe that wouldn't pass the "reasonable" standard of the fourth amendment. FISA has serious issues with relationship to disclosure. Now, apparently, so does the NSA.
Then where is the check on his power? If he doesn't have to go to court and is free to wiretap whoever he wants, what's to stop him from ordering wiretaps on non-legit targets?
Also, what communications are allowed to be intercepted and used? Only those coming in from or going outside of the country? What about internal communications between suspected terrorists/sympathizers?
yes, the prez absolutely has the authority to cir vent court approval on a wire tap for nat'l security purposes in the case of an emergency. He can avoid waiting for court approval on a wiretap in the case of, for example, the proverbial ticking time bomb in the subway station. However, the prez has not shown nor has he alleged that his illegal use of wiretaps has prevented such a disaster. He was basically just listening to conversations because he wanted to. He could have sought court approval but didn't because he knew no court would allow his requests based on the sketchy facts that he could provide at the time.
and you should stop giving "lessons" unless you know wtf you're talking about
If you have nothing to hide....then you should have no trouble with wire taps or surveillence.
We are at war...this is neccesary.
I've never met a person from Iraq, much less have a problem with anyone form there. No one from Iraq has ever done anything to me. I'm not at war with anyone.
See, I have a problem with that. We may be at war, but the rationalization for using these wiretaps is that it "makes it easier" for the government to recognize threats. But that something makes it "easier" or might go a bit further to protect security doesn't make it cons utional, which should be the overriding concern that places us at war in the first place. War shouldn't mean that cons utional rights are disregarded. Wiretaps and the like have been deemed to be unreasonable intrusive; accordingly, the government is required to obtain a warrant to tap anyone's phone. There are exceptions to cons utional requirements at borders -- for people entering the country through airports for example -- but the notion that the President could unilaterally choose to engage wiretaps of United States citizens carrying on business in the United States and wholly ignore the warrant requirement is beyond ludicrous to me.
I don't see how this precedent does anything other than expand Presidential powers under the guise of promoting national security.
What about the 'border search' argument for wiretapping international communications from/to US citizens inside the country?
I'm not entirely sure that I understand your question -- if you're talking about the notion of analogizing international communications with persons or items entering the country, I think that's likely the President's best legal argument to support the program. Commentary on this is rampant across the net right now, and I've read a couple of lengthy pieces from law professors and Supreme Court prac ioners who believe that the only possible way to justify the program legally (given existing precedent) is by suggesting either that: (1) this is, in essence, a border search; or (2) there is an inherent exception to the 4th Amendment when it comes to matters of foreign intelligence.
{I will readily admit that I'm not as current on 4th Amendment jurisprudence as I should be. I'll also admit that I don't have the time or the inclination at the moment to delve extensively into the nuances of juxtaposing Presidential power against the 4th Amendment. Accordingly, I'm relying on the commentators as my source.
Here are links to three of my sources: Volokh Conspiracy -- Orin Kerr; Concurring Opinions -- Daniel Solove; and Balkinization -- Marty Lederman here and here}
Of those two options, it appears that this round of wiretapping could be squeezed into the analogy of a border search. But curiously, it also appears that the White House has eschewed that argument, contending instead that the wiretaps are valid under FISA, the 2001 Authorization to Use Military Force, or the President's inherent powers pursuant to Article II of the Cons ution.
The commentators find significant flaws with each of those arguments -- flaws significant enough to find neither argument persuasive as a means for cir venting the default rule set out in the 4th Amendment. I can't disagree with those positions because they make sense to me in a cons utional sense -- that is, if you believe in the primacy of the Cons ution and that anything that nominally runs afoul of the Cons ution must be justified by an exception somewhere. The idea that the AUMF can be used as a proxy for warantless surveillance is largely untenable given the existing constructions of that Act -- constructions for which the White House has previously argued.
It seems quite clear to me that the wiretapping in question violates FISA (Foreign Intelligence Surveillance Act) because, in simple terms, that Act provides for express exceptions to the 4th Amendment and this situation is not among them.
That leaves only a Cons utional exception to the 4th Amendment, but again, the Administration hasn't made that argument.
Well, if it leaks ... as this has, and would probably be more likely to if he were using his executive power to eavesdrop for other than national security reasons, I'd say he'd be impeached.
By the way, no one has claimed he is "free to wiretap whoever he wants." He is free, some would say obligated, to do everything in his power to protect the United States of America from foreign and domestic threats. The courts have held that in the case of foreign threats, warrantless searches are allowed. That's been the case since before FISA and FISA didn't abbrogate that authority.
Well, the opinions only speak to foreign intelligence -- I haven't seen that defined. But, I would imagine if a foreign agent were on American soil talking on a foreign cell phone, he'd be free game.
It is this type of communication the NYTimes claims were the "entirely domestic" cases of wiretapping. There is no claim by the traitors that leaked this information to the New York Times that the administration was eavesdropping on domestic communications from one domestic device to another domestic device.
yet another neocon arguing against the cons ution
how do yall do it and sleep and at night?
Actually, the administration is claiming that two terrorists attacks were averted due to intelligence gained from this program.
One domestically and one in Great Britain.
Further, the President has no obligation to explain this to the American People. Let Congress hold hearings if they're so exercised about it.
Finally, I find it humorous that you infer this President is using this power to listen in on random people...as if it is actually HIM that is doing the wiretapping. You're funny.
Where am I arguing against the cons ution?
In fact, I'm arguing in favor of the President's power under Article II of that do ent. And, if you're claiming a violation of the fourth amendment, you also claiming that warrantless searches in pursuit of terrorists that may be executing an attack is unreasonable.
Not many courts will agree with your standard of "reasonable."
And it couldn't have been done under the conditions of FISA? Given the retroactive rubber-stamp nature of the Act, I find that difficult to believe.Actually, the administration is claiming that two terrorists attacks were averted due to intelligence gained from this program.
The president can claim that his use of wiretaps averted terroristic after the fact and we would never know if he was being truthful. We need some evidence.
The president has no obligation to explain himself to the american people? You're crazy if you believe this. Allegedly, it was the American people that voted for him. He's not a king.
And, yes, I really think that Bush was sitting in some van listening in on converstaions. And, yes, I believe that the president himself installed the wiretap. Doesn't matter if he physically listened to the convos or installed the devices, he wanted them, he authorized them, and he is ultimately responsible for the actions of his administration.
That's exactly what I am referring to.
Where's the check then? Why can't he go to the FISA court and get the ex post facto warrant? Can't the FBI monitor the judges and staff of the court to ensure optimal secrecy?
Well, the claim is that the NSA was eavesdropping on US citizens without a warrant.Well, the opinions only speak to foreign intelligence -- I haven't seen that defined. But, I would imagine if a foreign agent were on American soil talking on a foreign cell phone, he'd be free game.
It is this type of communication the NYTimes claims were the "entirely domestic" cases of wiretapping. There is no claim by the traitors that leaked this information to the New York Times that the administration was eavesdropping on domestic communications from one domestic device to another domestic device.
It appears to be the only route to avoiding Cons utional infirmity, but the Administration has chosen to make other arguments thus far.
I think the comments cited in my earlier post are interesting (obviously) and give some insight about how decisional and statutory law is a difficult hurdle for the President to overcome in this situation. I commend them to anyone who has an hour to kill and wants to take a long look at the issue from a purely legal standpoint.
I think the authorization for the use of force and the 'general presidential power inherent in the Cons ution' arguments strike this non-attorney as cons utionally, well, lame. The border search argument seems to hold some merit.
The Cons ution doesn't really differentiate its protections by the status of the person sought to be protected -- at least not in 4th Amendment, pre-arrest terms. If there are Cons utional bases to conduct warrantless searches, like evident exigent cir stances or criminal activity happening in plain view, there is no Cons utional problem with the government undertaking an immediate search without a warrant. FISA seems to take into account the specific issues with the exigent cir stance of terrorists, but it still requires an application for a warrant at some point.
If we more concerned with allowing the President to unilaterally decide whether he should or should not authorize any particular wiretap, without a Cons utional exception and without the need to go to a court in the absence of an exception, then we're pretty content with the slow erosion of a free society into a police state with an executive who may eavesdrop on whomever he wishes so long as he can portray that person as being a threat in even some amorphous sense. If you're willing to accept that, it seems that you must see the Cons ution as nothing other than a do ent that should be applied on a case-by-case basis.
Last edited by FromWayDowntown; 12-21-2005 at 06:07 PM.
I agree, and of those, the Article II argument is the lamest. The Article II argument suggests that the President as Commander-in-Chief is above Congressional law making and not burdened by anything other than his own conscience and sense of what is reasonable. Neither the Cons ution or existing statutory law would provide any impediment to the Presidential exercise of this power in any cir stance, really.
The AUMF argument strikes me as facile.
I also don't get this ends-justify-the-means approach to Cons utional concerns -- by that rationale (taken to an extreme, no doubt, but a logical end that the rationale would support) if you could stamp out domestic terrorist threats by invading every home, apartment, and place of business in the country in an effort to find evidence of terrorist activity, you could justify the Cons utional invasions that would result. The Cons utional concerns would be, I guess, swallowed up by the result of safety, which would be paramount.
What is the burden when you can go to the FISA court (FISC) after the fact? That's what I am not getting. As I understand it, there are a number of precautions in place for optimal secrecy and whoever is targeted has no right to notification and representation. There's only been 4 instances of the court refusing to grant a warrant in its history.
It means that Bushie couldn't even articulate enough facts to overcome the relatively low probable cause threshold. So he said it. HE can always manufacture probable cause after the fact--if anyone finds out. Ooops, somebody did. Now, Dubya's getting all indignant that anyone could possibly question his authority as King.
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