It is interesting to note that a FISA warrant can be obtained retroactively after a tap is placed.



-Source

The reason why a warrant is required is that giving unlimited power to the executive can and will lead to inappropriate abuse of power. Yes, they claim they monitor international calls and thatk ind of thing, but there is evidence that domestic phone calls have been monitored as well.


There has also been some information left out in this discussion. in discussing the executive order regarding tapping, republican like to cite:



But they leave out this part which cannot be separated from the paragraph.



What does this mean?....


-Source

Is it just me, or has anybody else noticed anything fishy about Bush's sense of urgency in tapping phones?

Bush ignored almost all of the 9/11 commission's recommendations. He received a very resounding failing mark on his progress there.

Bush continues to allow our borders to be open and is willing to grant amnesty to illegals. And these "illegals" include swarmy middle-eastern men who have a deep passion for a particular religion of peace - not just Mexicans.

So, to be truly safe from terrorist attacks, we need to spy on Americans outside any type of oversight? Does this really seem plausible?

By the way, U.S. District Judge James Robertson, one of 11 members of the FISA Court, resigned in protest today. If I were a betting man, I'd say he knows the law regarding this slightly better than any of us or any of the talking heads on TV. Just a hunch. I could be mistaken.

Congress is going to be all over the board. Of all people, Rep Jim McDermott was complaining about this. This is the guy that leaked an illegally-taped cell phone call regarding Newt Gingrich back in the 90's. Congressmen don't do irony, I guess. That CYA letter from Rockefeller was typical posturing. I'm not going to do anything to stop this, but I am going to put a note in a safe so I can show I had a noble stance. If he wanted to take action, he certainly could have expressed concern directly to the OIG.

edited to add...

Judge quits among spying debate: report


If FISA court judges are having a problem with Bush's assumption of this power (and/or the line of reasoning used to justify it), then it is likely that what he has done is unconstitutional, the nation's wartime status notwithstanding. I think Mr. Bush might have overstepped his bounds once too often.

Sure, these are likely to become partisan talking points, but at least they are from the mouth of the POTUS.

It seems in selling the Patriot Act Bush has offered apparently contradictory statements about judicial oversight of these searches. In these remarks he seems to be saying that the Patriot Act powers are carefully monitored. His recent remarks, as far as I can tell, say the opposite.


White House



President's Remarks at Ask President Bush Event


President Bush Calls for Renewing the USA PATRIOT Act



President's Radio Address



Fact Sheet: Giving Law Enforcement the Tools They Need to Safeguard Our Homeland



President Discusses Patriot Act

DR,

Nope, you're not the only one who smells days old fish here. One thing that happens when court orders aren't sought is that paper trails are eliminated. I'm wondering who got tapped and what came of this. Did any terrorists get nabbed? Any terrorist plans get thwarted?

Conversely, did any politicians get targeted? Journalists? Writers? Peace activists? Environmentalists?

Without oversight, we don't know. It comes down to trusting the administration, which in a representative democracy should not be allowed. The primary argument is that the President has war powers, which also means that we are in effect under martial law, which we know is not the case at least so far. However, after Katrina the President thought for a brief period that the military ought to take over disaster relief activities, but later reconsidered.

Phew. Well, fascism does keep the trains running, doesn't it. It'll be curious how the NY transit strike plays out against this background of surveilance.

Thanks for the comprehensive list of quotations from the President that contradict what was actually underway. This should be called what it is, however - LYING. I was about to post something similar but less complete.

The two most important points regarding this issue that have been made by others but which need emphasizing are:

1. The wiretaps were clearly illegal under the 1978 FISA Act and they remain illegal no matter what they accomplished. In simple words, the President violated the law!

2. There was no oversight of these activities by any independent party and thus there is no accounting for the who, what, and why of the wiretaps. For a constitutional system whose fundamental basis relies on checks and balances, this is dangerous in the extreme.

If this was an isolated program of excess zealousness, it might be less worrying. However, it is not, but is rather part of a larger pattern. Opposition to this kind of dictatorial activity should not be confined to those on the left but deserves the raised pricipled voices of all who still believe in the concept of limit government with real checks on executive authority. Here are a few words from my favorite Libertarian:

See Justin Raimondo Article.

I disagree. I think that is only a main point if you come into the debate with the the already asserted belief that FISA trumps executive powers even when we are at war and it is a matter of national security.

To claim that this belief is agreed upon and not a variable is not honestly looking at what is in disagreement as a whole with this issue. This is a matter of congressional powers versus executive powers.

I think either way there are fair, honest and valid arguments. Congress did grant extra powers to the executive. The courts have found in favor of the executive when it has been a matter of national security. Yes I agree the president was in violation of FISA but you neglect to take this the one step further and truly expand the discussion...does the president's powers in this case override FISA?

From what I have read and understand from the president's legal argument he already knew and has admitted that FISA would not approve. So your argument is already accepted...what you need to focus or make the main point is how the president's powers are in fact reigned in and that he must still adhere to FISA.

They have but not solely on the basis that the nation is at war.

FISC ruled against Bush in 2002, citing a distinction that the Truong court did not have FISA before it. On this basis I assume that Bush is still subject to FISA.

Last year the USSC ruled against the government in the case of Gitmo detentions. Congress’ response was to “correct” the High Court by introducing legislation that would limit the legal rights of detainees.


I’m not sure if you’re talking about this?

Bush explaining himself: “After September the 11th, the United States Congress also granted me additional authority to use military force against al Qaeda.”

Gonzales explaining the president: “Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.”

This is what Senators and Congressmen said about the authorization in the congressional record (9/14/01):

Sen. Ted Stevens (R-AK): “Some people say that is a broad change in authorization to the Commander in Chief of this country. It is not. It is a very limited concept of giving him the authority to pursue those who have brought this terrible destruction to our country and to pursue those who have harbored them or assisted them and conspired with them in any way.”

Rep. James McGovern (D-MA): “The body of this resolution is appropriately limited to those entities involved in the attacks that occurred on September 11th…It reiterates the existing constitutional powers of the President to take action to defend the United States, but provides no new or additional grant of powers to the President.”

Sen. Joe Biden (D-DE): “In extending this broad authority to cover those ‘planning, authorizing, committing, or aiding the attacks’ it should go without saying, however, that the resolution is directed only at using force abroad to combat acts of international terrorism.”

Rep. Christopher Smith (R-NJ): “The resolution is not a blank check. We do this with our eyes open and in fervent prayer, especially the prayer that President Bush and his national security team will be lavished with wisdom from God above to use only that force which is truly necessary and only that force which is truly appropriate.”

Rep. Lloyd Doggett (D-TX): “The tension that we face tonight is to provide the President with enough authority to eradicate wrongdoing without wronging the carefully crafted systems of checks and balances so essential to our democracy. … As we vote for this important resolution with the lives of so many at stake in this important endeavor against terrorism, we cannot let the executive branch become the exclusive branch.”

Am I the only one who thinks Gonzales is stretching the scope of the authorization to the point that it is not what the same thing Congress was talking about?

Are there other powers granted by Congress that you were talking about, bucket?

The president's powers can only override FISA if he is given the authorization to do so by Congress. This is a fact that both the President and the Attorney General both acknowledge. To believe that an authorization to use the United States Armed Forces is also authorization to bypass established checks and balances on executive power in the law using another organization (not the United States Armed Forces) is absurd.



The President must adhere to FISA because he has no authorization not to adhere to it... and the reasons he gives for violating FISA do nothing to change this fact. His reasoning makes no sense at all.

I disagree. Congress can not by statute limit the powers granted to the President by the Constitution. John Schmidt , the associate Attorney General for the Clinton Administration agrees with me on this. In his op-ed piece in the Chicago Tribune today writes in part the following.....



and later on.....



I would urge people here to read Mr Schmidt's entire piece. Nothing in this little bruhaha is new or unique to President Bush. And, it has been reviewed and accepted as Constitutional by the courts. From Mr. Schmidt's op-ed.....

Well, if you actually read the Court of Review's opinion, you will see what they left out in that article.

First. Let us consider the ellipses between "... obtain foreign intelligence" and "We take for granted..."

In the opinion you will find this statement in between those two:



They don't want to mention that in the article because that would actually mean that there are limits to that constitutional authority. What are they?

Well, let's look at the Court of Review's opinion some more:



and... very important, this:



That was the opinion of the Foreign Intelligence Surveillance Court of Review in 2002. So, the op/ed opinion is manipulating the Court's opinion and leaving out specific information in order to spread an untruth. The President's power in this area -- as the government affirms -- is limited and the FISA statutes are constitutional. Meaning they apply. Meaning that the President can't ignore them. Meaning that if he did, he violated the law.

Perhaps it would be useful to look at the full opinion instead of selectively quoting a line here and there. The paragraph in question states the following in it's entirely (emphasis mine).....




This paragraph clearly indicates that the court recognizes the following:

FISA can not limit the President's authority

The question before the court is whether FISA "amplifies" the President's authority

FISA is Constitutional

Aquilla, the way I read that paragraph it's stating that the Troung court only had the Fourth Amendment to go by when determining presidential powers. FISA limits presidential powers to conduct warrantless searches by instituting oversight through a certification process. The government (Bush) went before FISC to argue that the president had the authority to conduct warrantless searches. Not surprisingly, FISC has to ask, then, if FISA’s restrictions are constitutional. It ruled that the restrictions were. Going by that, one has to assume that the Executive branch isn’t above FISA.

Lesly, this opinion sided with the government. Bush won this one. From the opinion......



and in the "Conclusions" section we have this.....



What I basically see this opinion saying, and no, I haven't read it all yet, is that the President has the Constitutional authority to order warrantless searches against foreign enemies and/or their agents. This authority is granted to him under the Constitution and Congress can't pass a statute that limits that authority below that granted by the Constitution. From the op ed piece written by a member of the Clinton Justice Department I cited earlier......



It seems to me that the author of this op-ed is arguing, correctly in my opinion, that it doesn't matter what FISA says when it comes to the President having the authority for warrantless searches against agents of a foreign enemy. The President has, and always had that authority under the Constitution and that trumps any statute. FISA was constructed to give the executive branch yet another mechanism to conduct foreign intelligence operations, not to replace the inherent powers of the President granted by the Constitution. That's why the federal government has used the FISA court as much as it has as referenced here. The President doesn't need to make the direct decision to conduct each and every operation that way. A US Attorney can go to the FISA court and get a warrant in most cases and they have done this. However, in special cases with special circumstances on which we can only speculate, if the need be, the President has the authority to bypass the FISA process and order the warrantless search directly. That to me is what this court ruling says.

1. Spying, privacy, etc. are never said in the Constitution.



From: Constitution

I don't think people quote from the Constitution enough in Constitutional debates...

I'm a bit confused by the meaning of this, and this is, of course, where the debate is. The first part is pretty simple, so we have to debate about what is "unreasonable". For the second part, we must debate about what it means . I have not seen anywhere in the Constitution where it specifies WHO issues the warrants, and I think that courts have just picked up the fumble here. So, realistically, who does this "Oath" have to be to? Could it be the President? Could it be the head of the NSA? But here, we refer to technology. The quote says, in terms of searching, a "place", and with seizures "persons" and "things". Now, we have to debate about if emails or telephone calls really fulfill these. They of course don't fulfill searching a "place", and they aren't actually seizing a "person". Finally, although emails and telephone calls are "things", you aren't necessarily seizing them if they are being recieved at the second point without interruption. If two people were passing a ball between them, I wouldn't be seizing the ball if I saw it go between them.

Note: you can't cross these; you can't talk about searching a "thing" and seizing a "place" .

Therefore, I don't think any violation is occuring, because nothing is being infracted in the second part.

2. Since the President OKed it, I think he should be able to stop it.

3. You are assuming there is an infraction. There isn't.

Even if there was a Constitutional violation, it may not apply at all. Again I quote:



Congress can make a law saying that it's fine, so if it helps enforcing 95% of the Constitution, I would feel it's appropriate to violate 5% to get that benefit.

Sometimes I feel about Constitutional debates are absurd. Questions like "Is detaining former child molesters on Halloween unconstitutional?" I DON'T CARE IF CHILD MOLESTERS ARE DETAINED! I DON'T CARE IF THEY FEEL VIOLATED! THEY HAVE VIOLATED SOMEONE ELSE! Which is better, infracting upon people that deserve to have their rights violated or have kids who have their rights violated but don't deserve it? I'll finalize by connecting it to this debate. Personally, I'd rather have the US government monitoring the emails I get from AD, Facebook, debate friends, and Yahoo! Chess than be killed.

Finally, a pondering thought: would people care if they just seized SPAM?

Fact Check: Clinton/Carter Executive Orders Did Not Authorize Warrantless Searches of Americans
http://thinkprogress.org/2005/12/20/drudge-fact-check/
The top of the Drudge Report claims “CLINTON EXECUTIVE ORDER: SECRET SEARCH ON AMERICANS WITHOUT COURT ORDER…” It’s not true. Here’s the breakdown –

What Drudge says:

Clinton, February 9, 1995: “The Attorney General is authorized to approve physical searches, without a court order”

What Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve “the premises, information, material, or property of a United States person.” That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush’s program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton’s 1995 executive order did not authorize that.


Drudge pulls the same trick with Carter.

What Drudge says:

Jimmy Carter Signed Executive Order on May 23, 1979: “Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order.”


What Carter’s executive order actually says:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

What the Attorney General has to certify under that section is that the surveillance will not contain “the contents of any communication to which a United States person is a party.” So again, no U.S. persons are involved.



As for the Op-Ed today:

The 2002 Appeals Court Myth; Truong case DOES NOT absolve Bush; "FISA specifically prohibits the warrantless domestic searches that the President authorized."
http://thinkprogress.org/2005/12/21/appeals-court-myth
A column in this morning’s Chicago Tribune by John Schmidt argues that Bush’s secret domestic surveillance program was legal. (Byron York posted a portion of the piece on the National Review website under the title “READ THIS IMPORTANT ARTICLE“) It features this selectively edited excerpt from a 2002 decision by the FISA appeals court:

“All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence…We take for granted that the president does have that authority.”

Actually, the quote doesn’t begin with the word “all”; it begins “The Truong court, as did all the other courts…” The Truong case was decided in 1978 — the same year FISA was passed — and did not deal with the FISA law. As the court noted right before the excerpt, “Truong dealt with a pre-FISA surveillance… it had no occasion to consider the application of the statute…” The Truong case dealt with the President’s power in the absence of a congressional statute.

This is critically important because FISA specifically prohibits the warrantless domestic searches that the President authorized. As Chief Justice Roberts explained in his recent confirmation hearings, referrencing the landmark Supreme Court case Youngstown Sheet, “where the president is acting contrary to congressional authority…the president’s authority is at its lowest ebb.”

The article also conveniently omits the two sentences after the excerpt:

It was incumbent upon the [Truong] 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…

All the court is saying here is that whether FISA imposes limits on the President’s authority is not an issue in this case. It was an issue in the Troung case but, as the court explains, “[T]he question before us is the reverse.”

Aquilla

Please read the entire opinion. I did. With respect, you obviously don't understand the context of the case or the arguments. If you did, you wouldn't make the claim that FISA requirements are both constitutional and unconstitutional. They can't be both. Either the requirements are constitutional in terms of meeting the standards of the 4th Amendment or they are unconstitutional because the President's authority surpasses the protections of the 4th Amendment and the FISA requirements, in reflecting the principles of the 4th Amendment, encroach on the President's constitutional authority.

First, Bush won in this instance because the FISA court judge added restrictions that were not a part of FISA:



That is the win. The court ruled that the government did not have to adhere to these added restrictions that were never a part of FISA.

They also won in that FISA court orders were considered reasonable in terms of the requirements of the 4th Amendment and therefore, FISA was constitutional. This was done in response to the assumption that FISA was unconstitutional because FISA court orders did not qualify as a warrant within the meaning of the 4th Amendment:



In terms of the President's constitutional authority to conduct warrantless searches, the Court of Review and the Bush Administration agreed that the 4th Amendment was a boundary, in that the principles of the 4th Amendment drive the requirements of FISA. They also agreed that the "procedures and government showings required under FISA", even if they do not exactly "meet the minimum 4th Amendment warrant standards, certainly come close." This is why both the court and the administration agreed that FISA was constitutional. FISA doesn't encroach on Presidential authority because a limit to that authority already exists in the Constitution -- the 4th Amendment. It amplifies the President's inherent authority to conduct warrantless searches by stating, as a matter of law, that the executive branch has that authority and also by reflecting an existing constitutional boundary to that authority -- the 4th Amendment. And because the FISA requirements do not add further limitations to the President's constitutional authority and because it provides a sufficient means to meet the requirements of the 4th Amendment limitation, FISA does not violate the constitution.

If, however, FISA does encroach upon the President's constitutional authority, as you appear to be claiming, it would be considered unconstitutional... wouldn't it? If the requirements of FISA provided an additional limitation on constitutional executive authority, wouldn't FISA be unconstitutional? But it isn't. If the requirements are constitutional -- and the President agrees that they are -- then why does he have the right to bypass this constitutional law?

In addition to inherent authority, might there not also be inherent boundaries to that authority in the Constitution? Like, ummm... the 4th Amendment, maybe?

So, the op/ed piece manipulates the meaning of the court by selecting a few quotes out of context to support a conclusion not found at all in the court's opinion.

Republicans as well as Democrats in Congress are calling for an investigation, a joint one by the Senate Judiciary and Senate Intelligence Committees. It is obvious that Republicans are disturbed by this Presidential admission as well. Perhaps we should see what transpires before we here determine whether what Bush did was Constitutional or not. Of course, I am speaking as a person with no experience in law.

In the meantime, this Washington Post article is a pretty good read:
Clash Is Latest Chapter in Bush Effort to Widen Executive Power

Clearly, if Mr. Bush thought that Congressional Republicans would form ranks behind him and march in locked step regarding his personal authorization of secret wiretaps of Americans, he miscalculated. From the same link:

Unfortunately, we may never know exactly what will transpire in that investigation. Any investigation will more than likely happen behind closed doors due to national security issues. Bush will most certainly never want to disclose to the public the exact nature of the illegal surveillance. There is enough information available from the President's own mouth to debate the constitutionality of his actions. It is clear that this administration is attempting to establish more power for the executive branch. Cheney has made that quite clear.

How can you assume that exactly when FISA was never tested and the question if congress can in fact regulate or restrict presidential power in regards to national security was never asked?

The Bush admin is appealing this ruling. Many of the theories and breakdowns I have read on this base a lot of what they believe to be the president's main legal argument on the brief submitted for this appeal.




I said many posts back that I felt Hamdi was another important insight into the legal argument of the Bush admin. I don't think Hamdi's importance regarding this issue lies in the ruling but rather the opinions given by the Justices and the recognition of presidential powers made in the case itself.

If you read the opinions in Hamdi you will see that the president's powers to be guided by the rules of war are recognized by the Supreme Court, that the granting of these powers by means of the AUMF through Congress' approval are also recognized by the SC and said to be the only authorization needed. So what other oversight when conducting acts of war or acting in the interest of national security must the president abide by?
This case also basically lies out a very documented definement of presidential powers and the rules of war with all three governmental bodies' recognition of them. I think that is pretty significant.



Yeah I was talking about the powers granted to the president as an active commander in chief. You have any explanation or argument that explains why Congress is permitted to limit the president's powers in the realm of war and national security once she has already granted them?


For all the cries and anger to the idea that our system's check and balances is not being permitted to operate in this situation...seems many here are very comfortable and content with the possibility that Congress may in fact be overstepping her role too. And I am totally perplexed as to how any one can claim this is a non debatable...clearly it is. What are the restrictions on presidential power in the constitution regarding national security and war ? And Can Congress limit these powers once she has handed them over?

Also I find the assertion here that The Bush admin alone has been slowly and secretively encroaching on this power grab not a very fair argument to make. It has been a result of several recent court cases and their opinions in them that have led the Bush admin farther and farther down this path.

My personal opinion is that the Bush admin does have a decent argument on this and that is frightening. I happen to be in support of this idea of divided and diffused power. I think this is going to turn into huge case of constitutional authority and I think the Bush admin has been gearing up for this fight for some time now and I happen to believe their argument is valid.

The issues involved here are certainly debateable. The President has certain Constitutional authorities and the Congress has given him greater ones by authorizing force (the term "declaring war" is really passe at this point) against Al Qaeda.

Can anyone reasonably argue that in World War 2, the Congress would approve war against the Germans but not approve American spies from listening in on Nazi communiques, even if such communiques were received by an American? In war, intelligence is just as important as how many bullets you have.

There is certainly precedent here as well. The US Supreme Court granted the ability to detain American citizens indefinitely if they are captured on the battlefield. There is no greater loss of civil liberty than the loss of one's physical freedom and yet the USSC has granted that ability. Is there oversight by Congress? by the judiciary? to make sure the government only locks up people caught on the battlefield? The USSC ruled that if the government acts in good faith then it is legal. But who does it justify itself to? The Supreme Court apparently didn't see that as too big of an issue and that was a case involving the actual loss of freedom.

Obviously there need to be some limits. In this case, as in the Hamdi case, I think the limit is "good faith", which opponents of the administration place somewhere in the range of "we have no faith in anything you do" to more moderates who want judicial oversight to people most worried about attacks in the "do whatever you have to" crowd.

Then you have some who one could expect to be most informed about this situation spouting off things that are simply factually incorrect.

On wiretapping, Bush isn't listening to the Constitution

Senator Kennedy wrote this Op Ed in the Boston Globe. Included are such factually incorrect assertions as:



Wrong. This was not done within the United States as one end of the conversations was overseas.



Again, context is wrong. If the sticker read: "Incoming calls and e-mails from Al Qaeda may be monitored" he'd be more accurate.


Constitutional power is not granted by the Courts, not is it granted by the Congress, Mr. Kennedy.

The President is not using the argument that I used previously in this thread: that these were legal under FISA. This has led me to the conclusion that there were indeed US persons on the receiving end of these Al Qaeda messages. The President has invoked the Constitution along with the Authorization of Force against Al Qaeda. He has some court rulings in his corner to at least make the case that this assumption was legal. He may be overturned by the Supreme Court, if it ever gets to them.

For the American people, I think the issue comes down to motive. Did Bush have our safety in mind when he authorized this or was he trying to damage his political enemies or spy on ordinary Americans? I think most people have concluded that he had the correct motives given the bounce in his poll numbers this last week.

What are you saying here, bucket? Did you mean to say “How can you assume that exactly when FISA was never tested and the question is can Congress regulate…?”


The Rumsfeld v. Hamdi decision was a hodgepodge decision, so I’m wondering which opinions you’re throwing behind your argument. True, AUMF was found constitutional, but why are you comparing the capture of an enemy combatant overseas to spying on citizens within our territory, and where does it state in AUMF that FISA restrictions are suspended throughout this engagement?


If you are referring to AUMF are you saying you know better than the House and Senate as to what powers AUMF granted the president?


A trivial objection to the argument at hand. SCOTUS may’ve found AUMF constitutional, even if it didn’t agree with the government on all of its arguments, but no one in their right mind should’ve given a president the right to decide who he can retaliate against without congressional backing.


Where are debating this. I’d like to know where it states in AUMF that FISA, and perhaps other federal statues, are suspended. What limitations exist, if any, or are they subject to presidential prerogative. And why, for example, was it necessary for the Patriot Act to modify FISA at all if AUMF gave the president authority to decide what parts of FISA he can ignore as an “active commander in chief.”

1. Is this a violation of our constitutional rights? Why or why not? If this case were before the Supreme Court how would they rule?

Yes, I believe that it is. I am no constitutional scholar, but logically, our conversations, whether they are face-to-face or via phone or email should be private. We seem to be regressing back to the bad old days of J. Edgar.

I couldn’t begin to speculate how the Supreme Court would rule.

2. Does the President, charged with enforcing our laws, have the right to suspend them with an executive order when war has not been declared?

I believe strongly that this president is overstepping his authority at every opportunity, and each time it succeeds, he steps that much further over the line. Quakers? I mean, come ON. And all my reading on the case indicates that getting a FISA warrant is a piece of cake, and quick, too. So why circumvent it? Food for thought.

The FISA court itself doesn’t seem to think he has the authority. One judge has resigned in protest, and now the court itself is debating the legality of the issue.




3. The United States is a country built upon certain freedoms we hold dear, is the potential benefit of this violation worth the cost?

Absolutely not. It is getting to the point that I hardly recognize my country any more, especially when I hear so many people shrugging and parroting the party line of “well, if that’s what it takes to keep us safe”. What a crock! If we are so willing to give up our hard-won freedoms, then we most certainly don’t deserve them.

Has anyone in this thread played down the importance of intelligence gathering?

This is a non sequitur. Anyone can reasonably argue that Congress had disapproved spying on Nazi communiqué to American citizens... if Congress had in fact passed legislation stating so. Is there a provision in FISA that makes an exception for American citizens of Middle Eastern descent?


This is not what SCOTUS ruled in the Hamdi case.


The Fourth Circuit sided with Bush on detaining Padilla, a citizen, indefinitely in September. Later, the administration tried transfering Padilla to Miami to be indicted on new charges and Luttig turned them down.


The White House can act in any good faith it wants as long as it is legal, not the other way around.

I've read through the last few pages and I'd like to take a minute to point everyone back to this post wherein AG Alberto Gonzales makes a justification for this order in a press conference. In a single press conference he goes from saying that Congress somehow authorized this with the use of force because the Supreme Court might rule favorably. Then in the very same press conference he says that they couldn't amend FISA because Congress would have been against allowing this.

So out of one side of his mouth he is saying they authorized it (without it being explicitly stated) then he is admitted they'd never authorize something like this.


It most certainly is not Amlord, at least not until an amendment to the Consttituion is authored and passed.

Authorizing Bush to use military force does not in any way give him greater power domestically.

I think the Gonzalez garbling of words is mis-interpreted.

He said that the Congress would never approve it without blowing the whole thing. In other words, they'd never do so quietly which is what was needed in order to keep this type of thing hush-hush.

I should point out the Jamie Gorelick defense of warrantless break-ins to the Senate Intelligence Committee:



This comes courtesy of Byron York at National Review Online source

In fact, in the Aldrich Ames spy case, the government used warrantless physical searches and wiretaps to obtain evidence against Ames. The court never ruled on this stance by the Justice Department, because Ames plead guilty and never contested it. However, it seems to be the Justice Department's stance that these types of warrantless searches are under the President's Constitutional authority and have been upheld by court decisions.

Are you proposing, then, that since debate is part of governance the government should act without the consent of the governed where security is concerned?



Speaking of misrepresenting York quotes Gorelick’s testimony before the Senate Intelligence Committee in 1994 arguing that Clinton had authority to order warrant-less physical searches for foreign intelligence purposes. What York left out is that up until the following year FISA didn’t cover physical searches for foreign intelligence purposes. At the time FISA was signed into law it was limited in scope, issuing probable-cause warrants for electronic surveillance only (or mostly). In 1995 Clinton signed an amendment to include physical searches. The change may’ve had something to do with Republicans gaining majority status the same year Gorelick testified.

Where did I say that? I think what Gonzalez was getting at is that they already had the authority to do this, but where possible would defer to the FISA rules. They didn't explicitly ask for the warrantless (FISA-less) because they couldn't get it through quietly. In other words, there are a lot of blabbermouths in Congress (it is their job after all...)



Gorelick used the term "inherent" authority. In other words, authority granted by the Constitution. Congress cannot infringe on the executive's inherent authority.

Let's take this in reverse order, Amlord and discuss Bush's poll numbers. First, after going into full campaign mode, the Bush Administration has seen the President's poll numbers reverse their slide and tack upward, but still short of a majority. The Washington Post/ABC News poll gave him an approval rate of 47 percent and a disapproval rate of 52 percent. The 47 percent approval rate is up from Bush's 39 percent approval rate of early November.

The President had nowhere to go but up. Following a pubic relations offensive where he gave five "major" speeches, a press conference and numerous print and television interviews defending his leadership and how he has managed the war in Iraq, his polling numbers have been tracking upward and undoubtedly aided by the relative success and lack of violence during the recent elections in Iraq.

But the Post delivered mixed news for President Bush. Though his spirited defense of policies has reversed his slide, they aren't all roses and blue skies either.

The other cautionary note for the administration is that Bush's approval ratings and public optimism about Iraq have spiked in the past after instances of positive news, such as the capture of Iraqi President Saddam Hussein or the election in January of this year, only to recede later. But the gains in the latest poll represent a larger one-time jump than on previous occasions of favorable news from Iraq. Currently, 54 percent say they are optimistic about the situation in Iraq, up from 46 percent a year ago.

The administration's strategy over the past month has been to move the Iraq debate past the question of whether it was right or wrong to go to war in March 2003 to the question of Iraq's future. The administration also sought to rebut arguments from a growing number of Democrats that the president should articulate a more precise strategy for drawing down the 160,000 U.S. troops in Iraq or withdrawing them immediately. In both cases, Bush's responses appear to be resonating with a significant number of people.

Slightly more than half of the country (52 percent) continues to believe the war was not worth fighting, according to the new poll, although the proportion who said it was rose seven points, to 46 percent. But a majority now believe the war has contributed positively to the long-term security of the country, after dipping below 50 percent during the late summer and fall.

Where Bush has made no progress, despite his five speeches, is in convincing Americans that he has a clear plan for success, with almost three in five saying they do not believe he does.

http://www.washingtonpost.com/wp-dyn/conte..._nation/special

So while Bush has made some progress in his own personal popularity, much of it is predicated to not having a really bad week in Iraq and there are plenty of opportunities for really bad weeks in the future.

Secondly, while Congress has certainly given the president considerable latitude in waging the war on terror, it did not give him unlimited latitude. There are still checks and balances on the power of the Executive Branch and the matter at hand is why did Bush circumvent them?

What seems apparent to me is that the Bushies didn't go to the FISA court for permission to do a wiretap because they didn't have enough evidence to the convince the court of the need.

...there are such things as roving wiretaps. 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. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

http://www.whitehouse.gov/news/releases/20...20040420-2.html (emphasis added)

So if President Bush said in his own words, "a wiretap requires a court order" why is President Bush now saying he does not need one to go "chasing down terrorists?" What has changed?

Was Bush lying then or is he lying now? Or is he just a flip-flopper?

As this Article in the LA Times makes clear, the President while using the example of 2 of the 9/11 hijackers' communication with an al Qaeda safe house in Yemen as justification for his warrantless wiretapping, misconstrued the failure of communication between NSA and the FBI as a need for unrestricted wiretapping.




This is just another example of the administration answering, 9/11 9/11 9/11, when asked to account for its policies and behavior.

If they deferred to FISA why did they break its rules? If they had the authority to do it why is Congress, including NSA agents, caught unawares? Why are FISC members “arranging a classified briefing… to address their concerns about the legality of President Bush's domestic spying program?” (Link)


And she is right. Up until FISA the executive had broad powers of domestic surveillance for intelligence purposes. Without warrant-less physical searches being covered under FISA Clinton could authorize them without FISA warrants. If FISA didn’t cover domestic electronic surveillance people would bitch and moan about it, but we wouldn’t be having this discussion and Leder would be right to call it partisan bickering.

I will restate: the Congress cannot infringe on the President's Constitutional authority.

Let's look at this from another angle (since the current one is going nowhere...)

Why is the administration using FISA courts at all? If it is so blatantly breaking the rules, why bother going through the trouble on the vast majority of cases but then doing something else in certain situations?

Don't you think the intelligence community might have a good reason to deviate from procedure in a few cases? Don't you think that they at least thought they had a good reason?

If this were a blatant expansion of power, why are FISA warrants still be sought? If FISA warrants are simple rubber stamps that are easily gotten, why not get them (or better yet, why get them most of the time but not all of the time)?

Most if not all of this info had to be gathered overseas, where the US courts have no jurisdiction. Just a thought.

But Congress did grant him authority under the war powers resolution. And they did it right after attacks happened on US soil. Which means that every single member of Congress knew that some of the people we authorized the President to go after were, indeed, inside the USA. I’m not convinced.

text

If passage of FISA is not an “infringement” of presidential constitutional authority by setting down a procedure through which the executive can petition informal warrants through a secret court, what do you call it?


Because it must operate within statues set down by a federal law that doesn’t make a distinction between peace and war time.


Good question. I hope we find out why. However, blatantly and subtlely don’t determine whether an investigation should be brought to bear.


To delay the inevitable discovery that the administration was conducting unauthorized surveillance.


Because the administration wanted to conduct surveillance outside of the law. Is it that difficult to grasp?


Clinton may’ve had good reason not to agree to amend FISA so