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Tell me why it was necessary to ignore the law.
No, what has been explained is that the President has the cons utional authority to do what he did and that FISA doesn't change that. In fact, FISA courts have repeatedly reached that opinion whenever the question has arisen.
He is under no obligation to conduct his national security policies to your liking. What he did is legal and, by all accounts, within his cons utional powers to exercise.
Tell me, exactly which cons utional article or federal statute was violated?
Tell me why it was necessary to ignore the law.
I mean besides the fact there was a 0.0270592055% chance any single request might be turned down....
I'm telling you it wasn't necessary to go through FISA. They didn't ignore the law, they chose a different path. And, from some of the stuff I'm reading, FISA's definitions of "electronic surveillance" made the type of wiretapping involved "problematic."
So, if you're unclear if FISA allows the type of surveillance you want to do and you have a long list of court opinions that say you don't have to go to FISA to do the type of surveillance you want to do, why make problems for yourself?
Last edited by Yonivore; 12-22-2005 at 06:33 AM.
So they ignore the law because they are lazy?
Nice.
and arrogant. you forgot arrogant.
Huh? So you're saying that I, as an American citizen, only have to worry if I'm calling someone in Al-Qaeda, but you're also saying that they don't spy on American citizens. Which is it?
And as I understand it, all these court decisions you all are prattling on about relate to spying on foreign nationals, NOT Americans. To spy on Americans, you have to go through FISA. Period.
If one reviews the controlling legal authorities, it is hard to see what the fuss is about. For purposes of this analysis, I have assumed that the NSA intercepts electronic messages (phone calls and emails); that when the agency learns of a foreign cell phone or email address that is being used by a terrorist, it inputs that phone number or address into its surveillance system and is then able to intercept all incoming and outgoing communications; that the intent of the program is to intercept only international communications, i.e., those where at least one of the parties is located outside the United States; but on relatively rare occasions, communications between two people who are both located in the U.S. are intercepted. Under the governing legal principles, however, the precise details of the program shouldn't make any difference.
The starting point, of course, is the Cons ution. Article II of the Cons ution sets out the powers and duties of the President. Some people do not seem to realize that the executive branch is coequal with the legislative and judicial branches. The President has certain powers under the Cons ution, and they cannot be taken away or limited by Congressional legislation any more than the President can limit the powers of Congress by executive order.
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, which states:
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:
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.
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 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:
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.
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 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.
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:
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.
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 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, “Certainly we authorized the executive to collect intelligence, but we didn’t authorize it to break the law or violate the Cons ution.” 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? One good answer to this question, of course, is speed. Obtaining a FISA warrant would require a matter of days, at least, and perhaps much longer. But when our forces overseas capture a terrorist and take possession of his laptop or cell phone, time is of the essence. Those phone numbers and email addresses will be useful only until the terrorist’s associates realize that he has been captured or killed. So the first days, hours or even minutes after the numbers and addresses fall into our possession are likely to be critical.
But there may be a second 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.
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.” 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.
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.
It's Different When The Prez Is Intercepting Calls Originating In This Country By Us Citizens Or Others Here Legally. That's What He Did.
we will never know how many people in the USA were illegally tapped and for how long. that's the "fuss." There were no checks on the executive's power to avail himself of the narrow exception to the warrant requirement of the 4th amendment. There was no oversight. He could have gotten approval by a court after the fact and avoided the "fuss." But no, he's the king, right? He doesn't have to explain himself or ask for permission. He's fighting a war that knows no boundaries. He can go back only after he's been outed and say that terroristic threats were averted and I guess if you believe in ID you'd probably believe that too.
Last edited by Oh, Gee!!; 12-22-2005 at 02:57 PM.
Let's assume, for a moment, that it is reasonable, which I don't agree with, but let's say it is. The thing that no one has answered yet to my satisfaction is why, with FISA in place and compliant in almost every instance, was it necessary to go around it? It just doesn't make sense if your motives are on the up and up. If makes sense to go around FISA, though, if you know that your activities are so blatantly wrong--i.e., you are spying on your political enemies and not terrorists--that FISA would not agree to it. I just don't see the rationale for going around FISA if terrorists were really the target. The system is set up to make it supremely easy to spy on foreign terrorists--why not use it?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.
That's addressed in my post as well. The short answer is, maybe they couldn't use FISA because of the nature of the surveillance device or the location.
But, to satisfy you on this question would require further divulgence of what is probably top secret information.
Not according to the courts and all precedents, it's not different. Try reading my post again.
Well, the traitors that leaked this top secrety program -- if they were being so altruistic about it -- would have told you if the NSA program were being used to spy on U. S. Citizens for other than exactly what the President has confirmed.
The leakers, who should be found, tried, and executed for their treason, would have told you if it was being used abusively, don't you think?
the short answer is that you don't know and you'll say anything to support dubya because you're a right-wing nut.
sound like Bush: don't ask us why we do what we do. It's top secret and will stay that way for your protection. Thanks, King.
If you want to have a serious discussion of the facts, please read my post, you're repeating things that are already answered.
If you're just wanting to continue ragging on President Bush -- let me know, I have no interest in answering baseless invective.
Okay, I'm through wasting my time and energy on you. If you won't at least read and respond to the points raised, why have a discussion?
In his famous concurring opinion in Youngstown Sheet & Tube, the case involving President Truman's seizure of steel mills pursuant to his executive power during war time, Justice Jackson identified three categories of presidential exercise of power:
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum . . . .
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. . . .
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own cons utional powers minus any cons utional powers of Congress over the matter.
In which category does President Bush's authorization of warrantless wiretaps of the communications between terrorists abroad and individuals in America fall?
Arguably, it falls in the first, since Congress granted the president broad authority to take necessary and appropriate action to prevent another 9/11.
Arguably it falls in the second, if one construes the post 9/11 resolution more narrowly and also finds that FISA is not a clear denial of the president's right to authorize the wiretaps.
Arguably it falls in the third, if one construes the post 9/11 resolution narrowly and finds that FISA clearly expresses Congress's intent not to allow the NSA wiretaps. Or perhaps we need a fourth category to cover cases in which Congress talks out of both sides of its mouth.
Even if Bush's action does fall in the third category, it may be that the president's inherent authority to protect the country from foreign attack, minus Congress's power to legislate on the subject, leaves him with the power to act as he did here. The steel mills case involved the president taking private property and intervening in a labor dispute, areas of traditional legislative power. It is less clear that congressional power to legislate about the specific ways in which the government deals with foreign threats exceeds the president's power in this area.
Perhaps this question falls into the "zone of twilight" to which Justice Jackson referred.
If you're really interested in this subject you should consult the Harvard Law Review article by Professors Curtis Bradley and Jack Goldsmith: "Congressional Authorization and the War on Terrorism."
you haven't answered , yoni, you're just parroting right-wing bloggers and copying and pasting from other people's articles that you googled this morning. Don't come off like some expert on cons utional law because you're not, you have no original thoughts on the matter.
oh,gee. You are such a dummy sometimes. Go back and read a little bit
about history. People in the USA my foot, they were on an international
phone call. They have no right to any type of privacy. Just like you don't
if you are on a cell phone or wireless phone. Grow up. Get a life and
understand you have a President who is trying to keep you butt all in one
piece. Start worrying about the s getting married, not having
Christmas scenes on public land and everyone carrying guns, well with
the exception of your friends in Al Qaeda. Besides all the malarkey about
privacy is just that malarkey. There is no guaranteed right to privacy.
So, respond to the unoriginal thoughts -- with specific legal cites, I hasten to add.
there is a guarantee against unreasonable search and seizure and warrantless searches, xray, which is what this discussion is about.
I have expressed my disagreement. We don't agree on this issue and never will I guess.
Well, that's just unanswerable, isn't it? Trust in W, because he is wise and good, and would never steer us wrong. We poor dumb peons are not meant to know all the secret that goes on in the name of keeping us safe, right?But, to satisfy you on this question would require further divulgence of what is probably top secret information.
Jeebus.
you're now a republican. God bless you.
No kidding?
I just wanted to point out that you've lent no support -- historical, legal, or factual -- to your assertion that President Bush has violated the law or any articles of the U.S. Cons ution in his employment of a secret NSA surveillance program to spy on foreign agents.
So, I'll leave it up to the readers of this forum as to who made the more persuasive argument; you or me.
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