Why didn’t Bush, or the talking heads on the Right, just come out and declare FISA un-Constitutional as his defense?

The issue is not whether Bush has the authority to eavesdrop without a warrant, but whether it is legal for him to do so in the face of a law which makes it a crime to do so. And none of the authorities the Administration, or its supporters, cite conclude that the President has such a royal power. Nada.


The Department of Justice Memo, Debunked
http://thinkprogress.org/2005/12/23/doj-memo-debunked/
The Department of Justice has released a memo defending President Bush’s warrantless domestic spying argument. There are two main arguments:


1) Any limitations FISA places on the President’s authority to issue warrantless domestic searches are unconstitutional, and

2) Congress gave the President authority to issue warrantless domestic searches


It doesn’t seem like the DOJ has their heart in the first argument. They devote just two paragraphs out of a five page memo to this point. Most of that space is filled by caselaw decided before FISA even became law, making it largely irrelevant since FISA speaks directly to warrantless spying on Americans and declares it illegal.

Like other defenders of the President’s program, they place considerable emphasis on a 2002 decision by the FISA Court of Appeals. There are two important things to remember about that case:


- The FISA appeals court explicitly says it’s not addressing the issue (”It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority [to conduct warrantless searches]…The question before us is the reverse…”)

- The FISA appeals court acknowledges the cases it mentions were decided before FISA and didn’t consider the statute (”We reiterate that Truong dealt with a pre-FISA surveillance…it had no occasion to consider the application of the statute…”)

. . .

The rest of the memo is devoted to arguing that the 9/18/01 Authorization for the Use of Military Force (AUMF) against al-Qaeda authorized the President’s actions. This argument doesn’t hold water either:

1. The administration tried to get language inserted into the AUMF that would have authorized them to take actions “in the United States.” They failed. [Tom Daschle, 12/23/05]

2. Federal law says that “exclusive means” to conduct electronic surveillance is FISA and Title III (which governs the use of wiretaps by law enforcement). Relying on the AUMF, the administration concedes that neither of those two statutes were used. Federal law says that any surveillance that is not conducted under those two statues is illegal. [18 U.S.C. 2551(2)(f); 50 U.S.C. 1809(a)] . . .

It is less than helpful to simply advance a series of anti-Bush talking points without comment. Nothing really to debate there other than to point out that the arguments advanced here by myself and others (based on our own research by the way, not just copying some othe website) pretty well answer the points raised by your liberal website. The Truong decision is the case law for the President's inherent authority for a warrantless wiretap. It didn't address FISA because FISA wasn't in existance at the time. However the FISA review court did acknowledge and accept the Truong opinon and made absolutely no claim whatsoever that FISA trumped the President's Constitutional authority.

In other words, to put it simply and as nicely as I can.... ThinkProgress.org is full of crap.

On this you are 100% correct, Aquilla. Though I suspect not for the reasons I support. Bottom line, such power couldn't be granted by Congress if it directly subverts the Constitution (4th & 5th amendments specifically). It isn't their power to grant.

Congress can't grant it and Bush can't waive it by XO. This was exactly the type of abuse that people feared when 9/11 happened and why the Patriot Act had sunset provisions. Its one thing to expand our intelligence capabilities. Its entirely another to kick the constitution to the curb while doing so.

The part that gets me is, FISA allows the warrants to be obtained retroactively. If Bush had any interest in complying with the law, why not close the loop and get approval?

Perhaps this is the classic divide between Dems and the GOP. I have no problem expanding our intelligence gathering abilities in light of what has happened. Frankly, I think we should blur the line between foreign and domestic intelligence (thus eliminating the wall), the internet has all but done so already. BUT, when US Citizens (or persons, by definition) are the target of any investigation, some transparency is required, even if only by FISA provisions. Gather your intel at will, but make darn sure someone is watching the watchers. Otherwise any trust in government long term is lost to be sure.

Doc

That’s why the “original arguments”, so painstakingly researched, that support Bush’s illegal wire tapping seem to echo the talking points I’m hearing on Fox News?

FISA states that domestic wire tapping without a warrant is illegal; plain and simple. There is no ‘Painstaking Research’ needed to figure that out.

People have sworn to give up their lives to protect the Constitution, so if people die because we adhered to it; that’s how Freedom and Liberty work. And is the type of “System” the Founding Fathers had in mind.

“Those Who Would Sacrifice Liberty for Security Deserve Neither.” – Ben Franklin

If that’s the case; then why all the argument?

FISA says that Domestic Spying requires a Warrant; therefore if FISA doesn’t “trump” the Presidents Constitutional Authory-Tie; then the President does not have the “Constitutional Authority” to initiate Domestic wire tapping without a Warrant.

I've wondered about that myself. It would certainly make things a lot cleaner wouldn't it? I've never seen a FISA warrant application so I really don't know exactly what getting one entails, but based on the numbers of FISA warrants issued vs. the ones denied, it would seem to be a pretty straightforward process. I can only speculate that in certain cases for whatever reason the Justice Department doesn't think it has enough for a warrant and relies on the President's Constitutional executive authority instead. They take a hit for that though since nothing they uncover as a result of their search can be used for a criminal prosecution, but perhaps the circumstances are such that it is more important to collect the intelligence information for prevention purposes than it is to build a criminal case.



It's called a debate. Reasonable people can disagree on things.



The Truong court and the FISA Review Court disagree with you.

I’m sure some may claim that there might be a reasonable person who may disagree that breathing is required to survive; but I have yet to meet such a person.

Maybe they could spin the following:

http://straylight.law.cornell.edu/uscode/h...02----000-.html
TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1802

. . .there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; . . .


So I’m confused; what exactly is there for ‘reasonable people’ to debate about this?

That’s why the FISA Court said the following about Truong?

http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html
“. . . It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. 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 . . . ”


And if the FISA Court actually disagrees with me, why haven’t they come out and said so? I guess that’s why one of the Judges resigned; his shame in disagreeing with me.

It's quite simple. The section of the USC you cited (1802) also contains the following definition for a "foreign power".....



Ok, so let's look at USC 1801. There we find this in the referenced section.....




Note the highlighted differences between (1) and (2). Both are referenced in 1802. In the case of (1) "US Persons" are excluded from the definition, BUT, in (2), they are not. There is a reason the law was written that way and in the context of the global war on terrorism (whether you chose to believe it exists or not), a "US Person" can be viewed as an "agent of a foreign power" under this section.

So some terrorist has his Uncle Achnad's phone # on his laptop that we captured.

But Achnad isn't involved in anything illegal; but we tapped his line anyways.

And even if Achnad was, we didn't know he 'knowingly knew' before we tapped his line. That’s why you get a warrant, that says “Probable Cause: We found his # on a laptop”; so that’s its Legal.

No reasonable person will claim that they know some strangers “intent” ahead of time.

Questions for debate:
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?

I would say no, I understand the monitoring is originating with foreign sites/persons and only when they contact a US citizen or a US citizen contacts them are any US citizens then monitored.

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?

Yes, the declaration of a state of emergency gives him that authority for national security issues which this situation certainly qualifies for.

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

Yes, the terrorists will go to any means they can to kill any and all US citizens they can, they will dupe US citizens businesses into giving them financial aid, and this is the only way to monitor those activities.

In the hypothetical you describe a warrant would no doubt be requested and granted. It's not like the Bush administration doesn't use the FISA court. Once again, some of the numbers that people have posted here indicate that the Bush administration has used the FISA process extensively. And, that's a good thing. It's a good thing for everyone. As I have pointed out here repeatedly a Presidential authorized warrantless search can't be used for the purposes of criminal prosecution and that's a big deal. I know a lot of people here don't like Bush, but does anyone really believe that he would deliberately blow a criminal case by authorizing a warrantless search when he has the FISA avenue (with the Patriot Act modifications). It seems to me that Bush would prefer to use the FISA route whenever he can. It's in his best interests to do so (not to mention the country's best interests), and based on those numbers people have cited, that's exactly what he's done. It is reasonable to conclude therefor that on the rare occasions where Bush has exercised his Constitutional authority, there must be a darn good reason for doing it. I'll introduce a hypothetical of my own to demonstrate. Actually, it's not mine, but it was on the television show 'Close to Home" last night.....

"Close to Home" is a television show about an assistant district attorney. In the show last night they were investigating the disappearance of a young girl and they had the guy they think abducted her in custody. While they were questioning him he suddenly asked for a lawyer - his right. The DA refused and continued to question him believing that the girl was still alive. She knew that this tainted the case, but her motive was to save the life of the girl. She believed (correctly) that had a lawyer been provided for the man he would have shut up and the girl would have died before they found her. She also knew that none of the evidence gathered as a result of this highly illegal action could be used in a criminal trial and the guy could walk. (He should have actually). But, in the end, they found the girl alive.

Now, that was just a TV show and I had a lot of problems with what the DA did and think in real life she would have been hauled up before an ethics panel. But consider this in the context of the President of the United States who does in the eyes of the courts (Truong, FISA Review) have the authority to order a warrantless search. If he has the opportunity of saving 10's or 100's of thousands of American lives at the price of losing a criminal conviction on a terrorist, what's he going to do? Well, each person can answer that question on their own, but I do think he should have the opportunity to make the choice. And, I believe he has the Constitutional authority to do so.

So you are calling Bush a liar then?

Because when he was trying to sell the patriot Act; he claimed that “nothing had changed” even with it, and he still needed to get a Warrant for a Domestic wire tap. He makes no claims that he has Constitutional Powers that indicate otherwise.

http://www.whitehouse.gov/news/releases/20...20040420-2.html
. . . Secondly, 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. . .

EDIT:
And what way would that be?

The Washington Post has reported that judges of the secret court established under the FISA Act have demanded a briefing from the Bush administration on why they believed it was legal to bypass the Courts authority and eavesdrop on the telephone conversations and email of American citizens without a warrant.

So I guess that if someone had actually done any ‘Research’ they would not have quipped about the Judges disagreeing with me.

Jonathan Schell has a Pertinent Article in this weeks Nation.

I guess if someone had actually read the posts here and the arguments advanced instead of simply regurgitating the claptrap of some Bush-hating liberal blog they would have known that I addressed the FISA court briefings here in this very thread. I'll repeat that part of the post.......

Had you actually addressed it, you would have noted 2 things.

Wire tapping Terrorists or their Supporters domestically requires a warrant.

Both Bush has admitted this in ’04 and the FISA Act also says this.


And had you actually read the FISA Act; you would have noticed that your argument regarding “An Agent of a ‘Foreign Power’” in USC 1801 only covers the sub categories 1801 (a)(1),(2), or (3) not the Definitions of Terrorists found in 1801. So the waiver of a Court Order is not valid in those case.


(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—

(A) the electronic surveillance is solely directed at—

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or

(ii) the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;

(B ) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and


The only portion of 1801 that applies in this case is:

1801 (a)(4) a group engaged in international terrorism or activities in preparation therefor;


And 1801 (B )(2)(c ) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

And 1801 (b )(2)(E); which only covers (b )(2); (E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (, or (c ) or knowingly conspires with any person to engage in activities described in subparagraph (A), (, or (C ).


And 1801(c ) “International terrorism” means activities that—

Here is a letter written by Abraham Lincoln discussing the Emancipation Proclamation. He was not the first, nor the last chief executive to struggle with this issue.


Lincoln also suspended habeas corpus during the Civil War. He refused to release John Merryman even after the Chief Justice of the United States Supreme Court ordered him to do so. This was clearly unconstitutional, yet Lincoln was arguably our nation's greatest president. If he were alive today, Howard Dean and Dick Durbin would be comparing him to Stalin and Baltimore's Fort McHenry (where Merryman was held) to the Soviet Gulags. Compare the following with the current Guantánamo situation. This could come right from the Padilla case.

(H)e has been imprisoned without any process or color of law whatsoever, and that none such is pretended by those who are thus detaining him; and that no warrant from any court, magistrate or other person having legal authority to issue the same exists to justify such arrest; but to the contrary, the same, as above stated, hath been done without color of law and in violation of the constitution and laws of the United States, of which he is a citizen...Your petitioner, therefore prays that the writ of habeas corpus may issue,...for his arrest and detention, to the end that your petitioner be discharged and restored to liberty. [17 Fed. Cas. 145]

As for this...

Seems that every Democrat and the New York Times agree that American citizens have been wiretapped. I suspect the NSA's intercept keywords were in Arabic, and the "United States persons" under surveillance were resident aliens if anything. But that would get in the way of the now-irrelevant Senator Daschle's grandstanding.

Bazooka? OK. 2000-pound bomb? OK. wiretaps? NO WAY. I never voted for that. Puh-leeze.

This is literally the mother of all straw men. The NSA is monitoring overseas telephone calls, but the Senate never authorized domestic surveillance. So?

I am NOT comparing Bush Jr. to Lincoln, but I think it's important that we understand what Presidential power is reasonable. Is any serious person (read: not Tom Daschle) anywhere questioning Bush's right to do wiretap conversations overseas where the parties on the line are likely in contact with our enemy in time of war? Really? I wish our friend Erasmussimo would drop by and give me the particulars, becase quoting the FISA is not convincing me at all. Either we are at war or we are not.

What people are questioning Carlito is the President's right to do this without any sort of judicial oversight and with no accountability. The President is not a dictator, he is accountable to other branches of government through checks & balances and to the people. If Bush needs to reform intelligence gathering techniques then the existing system must be used until reforms can be made, period. Our government must be accountable and there must be daylight on its activities even if only within another branch.

Gonzales claimed that they couldn't reform FISA to do what they are doing legally because it wouldn't work politically. That should probably send a message to our government that the American people are not comfortable with this.

Secondly, and for the last time, we are not officially at war according to the Constitution. That requires a very specific resolution from the Senate, and gives the President expanded powers. So it really doesn't matter what "war on..." phrase we have coined we are not officially at war and we have not been since WWII. Any arguments made with that as the justification are completely invalid.

Here is what the Fourth Circuit wrote in the Truong case.

Are you saying that the judgement in Truong was incorrect and "completely invalid" because we were not technically at war with the Socialist Republic of Vietnam? You could only disagree with the common-sense ruling above by saying that FISA somehow trumps this case. But Sealed Case No. 02-001 was heard by the FISA court.

Skip all the way down the PDF and read the conclusion. The FISA court sided with the gov't in the case above and reaffirmed the President's inherent authority to conduct surveillance to obtain foreign intelligence information.

You may disagree with the war footing vs. the law enforcement approach, but many of us thought this was settled in the last Presidential election.

Do you have a copy of the full Truong opinion? If so, I'd like to read it. I keep reading this portion of it, but nothing that deals with the fact that Truong was not a US citizen and while we were spying on him domestically -- meaning he was in the States at the time, it would make sense to me that the government would be able to engage in surveillance on him without a warrant even under FISA because he is not a "U.S. person" as defined by the act.

Here is an interesting statement regarding NSA. Reading it, I found some interesting inconsistencies concerning the manner in which changes to intelligence gathering practices are supposed to occur and the way they occurred in this case.

NSA Director Statement



This didn't change with the Patriot Act Amendments.

Also under Executive Order 12333:



Was NSA surveillance limited by this Executive Order when Congress authorized the use of force in 2001? Did the President in his Executive Order amend or revoke this part of Executive Order 12333? If he did, Can he do so without informing the intelligence committees in Congress? Why would it be necessary for a President to go behind the back of Congress and secretly change known policy regarding intelligence gathering procedures?

Also, the NSA states that any changes to intelligence gathering procedures are put in front of the intelligence committees before being implemented in order to provide legislative oversight.



That obviously didn't happen. Now, is bypassing legislative oversight in this manner a matter of national security in a time of war? The President has decided his inherent authority includes bypassing legislative oversight?



Yes, but why did they agree with the government? Hint: it has to do with the protections of the 4th Amendment. And they did not affirm that the President's inherent authority is without limit nor that it supercedes the rights of US citizens found in the 4th Amendment. However, the Executive branch itself has something to say about that:



So, according to the Executive Branch of the Government, the President's "inherent authority" is limited by the 4th Amendment.

But, according to the President we should not be surprised when he secretly changes a well established limitation without informing the appropriate members of Congress. Then he tells us that Congress actually authorized him to change this limitation without their knowledge when they authorized the use of force in 2001.

I can't find the full opinion either, but you are right. Truong was not a US person. Here is his appeal for denial of bail, which was denied partially because he had not established permanent residence in the USA. (Appeals sent it back to District).

I don't see how that negates my point regarding us being "at war" though. Truong has been used as precedent in several cases, none of which took place in a state of war, which of course hasn't existed since WWII. Most recently in Hamdi and Sealed Case. Cube Jockey seems to be arguing that we could not monitor communications with the North Koreans, North Vietnamese, or now Al-Qaeda becase were are not "AT WAR." I don't believe this is true.

I'm not going to address your arguments regarding FISA, because I agree with Gonzalez that the use of force authorization and inherent Presidential authority supercedes them. So far, a court has declined to rule, and no court has yet ruled otherwise.

I agree and I don't think I have ever said otherwise - everything the President does is limited. The question is, does gathering intelligence by monitoring overseas communications from known terror suspects with whom we are authorized to use force constitute an unreasonable search.

Just curious - if 100% of this surveillance took place outside the borders of the USA, would the 4th amendment still apply?

Harry Reid, Tom Daschle, Ted Kennedy and now you are asking me to pretend that, on September 14, 2001, 3 days after being attacked here in the United States, that Congress could not imagine that the use of force would be used in the USA. There was a smoking hole in lower Manhattan, yet the use of force only applied overseas. Any terrorists or those aiding and abbeting them were to be left alone as they were "US persons." That is absurd. If killing and violence were authorized, then it stands to reason that finding / listening to their communications overseas certainly falls within the realm of using appropriate force. As I said earlier, authorizing bombs and bullets but not monitoring communications sounds like a ridiculous notion of how to fight a war, particularly one where the enemy was already acknowedged to be inside the United States.

Carlitos advances another important aspect to this case, one which was addressed in Katz v. US back in 1968 by the Supreme Court. In the concurring opinion I linked to, Justice White writes the following......



So, it would seem to me that in addition to the "primary purpose" test for inteligence gathering over ciminal investigation we know have a "reasonable" test as well that might apply.

You may not be comparing Bush, the lesser, to Lincoln but you are certainly comparing the situation presented by the Civil War to our current struggle with terrorists when the circumstances are totally different. You can not possibly believe that Bush was confronted with a situation threatening the existence of the nation and thus the Constitution. Lincoln recognized the extra-ordinary nature of his action hence the highlighted justification. He also did it in the light of day where it was open to challenge by others. Bush, on the other hand, took his action when he had a clear constitutional alternative and did so in secrecy

No that is not at all what I am arguing. First, people keep suggesting that we are "at war" and therefore the President has the authority to do this kind of thing of course referring to the expanded powers the office receives when at war. It is a plain and irrefutable fact that we are not at war from a Constitutional perspective and the President is subject to the same limits now as he has been since WWII. I really wish people would stop suggesting that because you are 100% wrong if you do.

That being said, FISA does allow for surveillance on "foreign powers" or those "acting as foreign agents", terrorists in otherwords, with a proper warrant which can even be submitted after the fact. That should provide all the latitude one would need unless you are the Bush administration and you feel you make your own rules and are accountable to no one.

The problem Carlito is that our government is going around FISA and spying on people with no judicial oversight whatsoever.

There is a good story in the Seattle PI which gives us more information on this story and in my opinion goes a long way towards showing the administration was spying on people they shouldn't have been.


It goes on...


Gonzales has said that the process is "too cumbersome" when everything about this court is designed to make it easy and historically administrations have had no problems getting warrants. In fact just over 3% of the warrant applications have required additional action and that is "too cumbersome"? I don't buy it.

As a matter of fact it is pretty straightforward to file for a warrant. There is a Washington Post article from Dec 22nd with some insight on that:


That pretty much sums it up right there - they actually need a good reason to show that someone is a "foreign power" or "agent of a foreign power" (read: terrorist) and they can't just make the reason up. That is as it should be both in my opinion and according to the principles behind our Constitution.

Sure it would probably be a whole lot easier if the government could just monitor all of our communications and thus catch any criminals before they acted, but thankfully that isn't the world we live in and we have rights - the government must have good reason to believe wrong doing has occurred or will occur before they can spy on you.

FISA doesn't even require the name of the target (see 1804(a)(3)), a description of some kind is fine.

What all of this adds up to in my opinion is the White House was casting too broad of a net and the court rejected this as they should and required more information. This White House feels they should be accountable to no one, they knew it wouldn't be possible to modify the laws governing the process (see my previous post from Gonzales' press conference) so they decided to just go around the law and report to no one - perfect!

I believe very strongly that we need to challenge ourselves to handle the threat of terrorism better through reform of our laws and our domestic and foreign agencies. However, everything must be done through the law and with oversight from another branch of the government, period. To believe otherwise you might as well shred the Constitution and dishonor all of the people that have fought and died to defend it.

And what are the instances that the court acknowledged were reasonable? Do you have the entire opinion?

Here it is:

http://caselaw.lp.findlaw.com/scripts/getc...9&invol=347#f19

What Justice White has done both in this case and in the Berger case he mentions is inject his own personal, political opinion when it has no relevance specifically to that case. The Court in Katz specifically states:



White then takes it upon himself to answer that unpresented question even though it is not relevant to the case at hand and in spite of the Courts decision not to answer that question. So, while it is in the record, it is not a part of the judgement and can't be used as anything other than a statement of personal opinion -- this is what White personally believes and not what the Supreme Court ruled.

Carlitoswhey,



I see, so both of these things are right. Both the Authorization for Use of Force and Presidential authority supercede the 4th Amendment. But isn't it an either or situation? That's the way that Gonzales described it. He stated that the Presidential Authority claim was a secondary defense if they couldn't prove the Authorization claim. But you think they're both right. Well. Interesting.

If the President has the authority, why keep it from Congress? They told a few senators and congressmen and ordered them to keep quiet about it. Why not inform the intelligence committees of both Houses (as was the accepted practice for changes in surveillance procedures) and tell them to keep it quiet?



If the surveillance involved a US citizen, the 4th Amendment would apply because the 4th Amendment applies to people and not places, see the above Katz v. US decision.



And this gives the President authority to violate the 4th Amendment how? See Benjamin Franklin's statements on the issue of security and liberty.



Do criminals have rights until proven guilty? Can you surveil a rapist without a court order? Can you surveil a serial killer without a court order? Can you surveil a child molester without a court order? No. You can't. You may find that absurd, but that is the way this country works. If we don't allow the potential criminal's their rights, we jeopardize our own. Besides, it isn't that these people should be left alone... you forget, they could surveil these people and get a warrant retroactively. You are making it a black and white issue -- we can either surveil US citizens that we suspect are terrorists without judicial oversight or we can't surveil them at all. That isn't the case.



Certainly, but not without proper oversight.



The President can monitor communications, what he can't do is bypass judicial oversight. Especially when doing so is completely unnecessary. If the President had a problem getting clearance for some of the surveillance he wanted from a court known for the ease in which it allows such clearance, you have to question what they wanted it for. And just because the President doesn't like the possible answer he is going to get in the process of checks and balances on Executive Power, does not mean he can simply bypass that process. The President can't simply do what he wants.

I think where the main difference lies here is in the understanding of a criminal investigation (where a warrant is always needed) and an intelligence surveillance.

In the case of an intelligence operation, the US Supreme Court has ruled that the Executive has the power to wiretap without warrants. Several Presidents, including this one, have used that authority. That authority does not stem from the War Powers Act or any declaration of war: it is "inherent".

This authority existed before FISA was passed and no act of Congress can encroach on the Executive's inherent authority.

The Constitution gives the President virtually exclusive authority to conduct foreign policy, especially war. The President cannot declare war, but it is he who carries out the war. Congress's role is one of funding approval. So it does have a "check" on this inherent power (a Constitutional check).

In this case, the Congress also has a Constitutional check: it can cut funding to the NSA.


It seems from your link that the Attorney General must personally review each application for a FISA warrant. That is, by any standard, pretty cumbersome if it happens more than a few times per year. (Imagine needing to get the president of your company to approve your expense report every week... you'd never get reimbursed.)

You know, I hope a copy of this thread is around when Hillary becomes president.

My biggest problems with republicans is whenever they don't hold Bush accountable for one thing, they give license to his predecessors to do the same. So when they say Bush can legally spy on US citizens because of his authority, every stinking democrat to ever hold office after Bush can do the same.

There is no subjectivity here. You can't say Bush is allowed to circumvent the Constitution, but nobody else is allowed to do the same. To suggest that Bush has some inherent authority because of "war" (that has never been declared), would be to suggest Clinton could have spied on American citizens because Al Qaida attacked the WTC in the early 90's and openly declared war on us. Would you be happy if Bill Clinton were spying on us? You'd want his head on a pike and you know it.

With this war of choice and disregard for the Constitution, it's clear Bush thinks he's a dictator - not president. Every American value from diplomacy to defending the Constitution has been turned on it's head and republicans generally have no problem with that. Even though I'm pro-life, for smaller government, and for fiscal responsibility, I'm embarrassed to even be associated with this morally bankrupt party.

Bush broke the law. It couldn't be any clearer. No matter how Clinton-esqe you want to parse the words of the Constitution, nothing is above the Constitution. Just by simply stating everyone of us could be linked to Al Qaida, each of our lives could be subject to this type of intrusion. I'm sorry, but I don't call this "liberty".

Party of principle? Yeah...right.

edited to add:
How effective is this tactic when Bush allows our enemies to stream through our borders at will and after enough time, give them amnesty? He won't seal our borders, but will tap our phones?

I don't believe anyone has argued: "It's ok because it's Bush".

Some have argued that : other Presidents have done it and they'd be right.



How do you reconcile that statement with multiple Supreme Court cases which state that the President has the power to wiretap without a warrant?

I agree with you that the border situation does not jive with all of this wiretapping. A smart enemy would be using illegal alien couriers instead of Verizon Wireless.

Can you show me the case where a US citizen was involved and the court ruled that it was okay for the President to violate the 4th Amendment because of this "inherent authority"? Please. Show me that decision.

There is a limit to that authority. Show me the case where the USSC stated that this authority was without limit. Stating that it exists does not mean it is without limit. I mean, I could state that the 4th Amendment protects the privacy of US citizens. Does that mean that protection is without limit? The Executive Branch acknowledges that such a limitation exists in Executive Order 12333, which to my knowledge and, I'm sure the knowledge of Congress at the time of the AUMF resolution, had not been revoked or amended to change that particular acknowledgement. The NSA has also acknowledged that there is a limit to what they can do constitutionally. Why has FISA been declared constitutional by the Courts because of its 4th Amendment protections if these 4th Amendment protections encroach upon the President's constitutional authority? And why did the Executive Branch argue that it was constitutional because of these 4th Amendment protections if it didn't need to abide by them? Why argue that Congress authorized the use of warrantless searches against US citizens, encroaching on their 4th Amendment rights, as a primary justification for that action if Congress has no power to make such an authorization?

The President has the authority to conduct warrantless surveillance for the purposes of foreign intelligence when an agent of a foreign power (in this case a terrorist) is involved and that agent may be a US citizen. But who determines which US citizen is a terrorist? Are we all terrorists until the President is satisfied that we are not? The President has the inherent authority to consider every US citizen a terrorist so that he can surveil us without having to provide any evidence that we are, indeed, a terrorist? I don't think so.



Between 2001 and 2003 there were 3,889 FISA applications that the Attorney General appeared to have no problem personally reviewing (I couldn't find data for 2004 and 2005). But I guess your implying that the few hundred extra applications that weren't filed were the ones that broke poor Gonzales's back. It's not that the FISC would've denied them, it's that there were just too many so he thought he'd skip a few and claim inherent Presidential authority.

It is interesting to note that all 5 of the denied applications in the history of FISA have occurred during the Bush Administration.

The day we give up the ability to be free from being considered an enemy of the state simply because the President thinks we may be is the day the terrorists begin to win. They will have then successfully begun to dismantle the fundamental civil liberties upon which this country was founded.

On a side note, here's another little debunk of Schmidt's Chicago Tribune article. In it he claims that every President has argued that he could go beyond the Act's terms. He then quotes Clinton's Dept. Atty. General, Jamie Gorelick:



She did not, however, state that the President could ignore FISA. In the end, the Clinton Administrations concerns regarding FISA were alleviated by an amendment to FISA that included the ability to conduct physical searches. Here is Gorelick's testimony:

Gorelick's Testimony regarding FISA

There was a concern in the Clinton Administration regarding the need for warrants as defined under Rule 41 of the Criminal Code. The Administration believed that warrants of that nature, required under the 4th Amendment, did not apply to searches for foreign intelligence purposes because they frustrated the clandestine nature of investigations for foreign intelligence purposes -- they required that the target be notified. But:



FISA was then amended to include physical searches and resolve the Rule 41 issue. FISA court orders, though not warrants under Rule 41 of the Criminal Code, were ruled by the Court of Review in 2002 to be sufficient in terms of satisfying the 4th Amendment warrant requirement.

So, President Clinton did not argue that he could go beyond the Act's requirements... physical searches were not covered in the Act. And Clinton sought to amend the warrant requirements of FISA and didn't simply bypass them.

Can someone show me the evidence that Clinton ever signed an executive order authorizing warrantless surveillance of US citizens for the purpose of foreign intelligence?

I never made the contention that such a case existed. What I said is that there are cases which acknowledge the President's authority to use this type of wiretap. The particulars of this instance have not been resolved by the US Supreme Court but there are certainly similar precedents. To say "Bush broke the law. It couldn't be any clearer." is to ignore these decisions.

It isn't clear, which is why there is a debate.

The Constitutionality of FISA is a different thing altogether from what I referenced. FISA sets up a warrantless approval process for wiretaps and physical searches. FISA does not grant warrants in the usual sense of the word. A warrant is a public document allowing a search. FISA warrants are secret.

This "sidebar" article from MSN explores the Constitutionality of the Patriot Act. In it, we find this very pertinent section regarding warrants: The Patriot Act Is Constitutional



A criminal warrant is needed for prosecution, not for the gathering of national security intelligence. As Aquilla said earlier in this thread, the feds are basically throwing out their ability to prosecute these people in order to gather information related to national security. It is not doing so all the time, but in some special circumstances.

EDIT: to add the following:The Gorelick testimony supports my arguments.

Look at her opening statement:



FIRST: the President has inherent authority "to conduct warrantless physical searches for foreign intelligence purposes".

Inherent means "involved in the essential character" of something. In other words, not given. In other words, if it weren't there, the essential character would be something different.

Her second point addresses the question of whether or not there should be legislation covering these searches and how that legislation should be worded. The concern (from the Attorney General's office) is one of law enforcement. They want to be sure that fruits of an intelligence investigation are available to law enforcement for prosecutorial purposes. There have been many discussions about the Clinton administration's approach to combatting terrorism by using the law enforcement route rather than the national security route. This testimony by Gorelick is an indication of how they viewed the subject: they wanted to make sure that intelligence gathered could be used in a prosecution.

If they did not take this approach, it would defeat their stratagem for countering terrorism. (Whether this approach was good or bad is the subject for another debate). Although the AG acknowledged that warrantless searches were within the President's authority if it involved foreign intelligence, it also acknowledged that information gathered in such a manner was inadmissable in a court of law. Hence the need for a mechanism which would ensure secret searches, but would also be admissible. Hence the inclusion into FISA.

This line of argument does not refute Gorelick's "point 1" which states that warrantless searches are inherent to the President's authority when they involve foreign intelligence gathering.

And I never said that the President didn't have the authority to use this type of wiretap. The problem is that people seem to be tossing around these court cases claiming that they provide precedent for warrantless surveillance of US citizens. They do not.



What is clear is Executive Order 12333:


What is clear is NSA procedure regarding changes in the way surveillance is conducted:


What is clear is that the Authorization for Use of Force states "necessary" force. Is it necessary to bypass FISA? The President claims that it is necessary due to advances in communications technology that require him to act "quickly". Well, not according to the NSA, who I think would be the experts on that subject:



What is clear is that FISA court order requirements for US citizens were considered constitutional because they satisfy the definition of "reasonable" in the 4th Amendment and it was the Bush Administration that argued this point. It would then seem to me that surveillance of a US citizen without a FISA court order would be, therefore, considered unreasonable.

It comes down to this... do we allow the President to surveil anyone he wishes without any sort of oversight. If the President has unlimited authority to do this, he can do so whenever he wants and claim it is for purposes of foreign intelligence. We would have to accept that claim because there is no oversight. It is completely unnecessary for a President to have this unlimited authority.

edited to respond to Amlord's addition:



Her second statement is in regards to physical searches only. At the time FISA did not include provisions for physical searches. That is what she is referring to in that second paragraph of your quote. She stated that legislation could be included in FISA that would not encroach upon Presidential authority if it were worded correctly. Specifically, the legislation would have to deal with Rule 41... the classic warrant which required notification of the target. If FISA court orders were allowed to be secret then they would not encroach upon Presidential authority. Those amendments were made to FISA. And these types of "warrants" were considered constitutionally reasonable by a Court of Review. So can her statements be used to argue that FISA does encroach upon Presidential authority?

Again, from the John Yoo article:





Then what exactly is your position? Are you proposing a Constitutional amendment?

Once again, the example given is regarding non-US citizens. You can't compare the actions of the United States Armed Forces abroad against non-US citizens with the actions of a military support agency within the United States and against US citizens.

My position is that this authority is not unlimited and has an existing limitation in the Constitution... the 4th Amendment. FISA court orders have been seen as satisfying this limitation, thereby amplifying the President's limited authority by cementing it in legislation -- it is an inherent Constitutional authority, reflected by the legislature in the law and held as consitutional by the judiciary.

Nowhere has any court ruled that the President of the United States has unlimited constitutional authority to surveil US citizens in a manner that bypasses the 4th Amendment. There is nothing in the Constitution to support that idea. And the idea itself goes against the principles upon which this country was founded.

I don't think anyone has made the claim that the President's authority is "unlimited". Instead that limitation has been spelled out here time and time again as being "for foreign intelligence gathering purposes only", NOT for criminal prosecutions. That is the limitation contained in the Constitution. That's why you won't find any Supreme Court cases that directly address this Presidential authority because there haven't been any criminal cases heard in the court where this has been an issue. Justice White's concurring opinion does give a sense of how the court might rule in a case like this, but you term it a "political opinion" I would suppose because you don't agree with it.

In this age, this war on terrorism knows no national boundaries. The US is a part of the battleground and terrorists living in the US are "agents of a foreign power", whether they are citizens or "US Persons" or not. I would ask people to consider if listening to what these people are saying to each other is a "reasonable" thing to do. If they answer to the affirmative, then the strict language of the Fourth Amendment is met.



Is it unreasonable to listen to the conversations and read the E-Mail of an individual living in the United States who is here to fly an airplane into a building?

And to answer an earlier comment by DR regarding what would I think if Hillary was President and doing the same thing. Well, I wouldn't want Hillary to be President, but when her husband was and was doing the same thing (see Aldrich Ames), I didn't have a problem with it.

I have gone over Byron York’s Clinton Claimed Authority to Order No-Warrant Searches article here and here, to name two posts. FISA did not cover physical searches. Clinton didn’t have to change “intelligence gathering procedures,” to quote entspeak, to comply with federal law until he amended FISA to include physical searches.

On the other hand FISA has clearly spoken to electronic surveillance warrants concerning US persons since passage of the act. The Patriot Act doesn’t revoke this condition. No one has proven AUMF does, either, except to say that Congress “should’ve known better.”

Why indeed. It’s not like any secret anti-terror programs have been leaked to the press this year. Great question. Thanks for asking.



I suppose that, having no legal training, I’m not qualified to note the legal difference between the FBI (a domestic law-enforcement agency) attaching a microphone to a phone booth (as in Katz) and the NSA (operating overseas) monitoring international telephone calls from known terror suspects to a US person. I’m guessing that there is a pretty significant legal difference.

The NSA program is not a criminal-prosecution enterprise. It is a national security program. If the NSA info were being used to prosecute drug dealers, car thieves whatever, it would be different. Actually, is this particular NSA program being used to prosecute anyone?

Since none of the cases referenced here has found a sitting president conducting surveillance for national security to be in violation of the 4th Amendment, can I chalk up your "president violating the 4th Amendment" statement as hyperbole?

As for Franklin, I suppose you are referring to his often mis-quoted and perhaps even mis-attributed statement regarding liberty and safety. In fact, it has been misquoted here in this thread already.