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The question is what do they do with the information they glean from surveillance that yields no national security threat? Shred it, pass it on to another agency with a wink and a nudge, start an FBI file and send it to Bill Clinton. I hate to think that all those phone sex calls I made for my independent study on telecommunicators working conditions would lead some guy I never met to think of me as a pervert. I can't sleep now.
Originally Posted by Pindar:
So basically what you are saying, is that the Executive can pretty much do whatever it wants when it comes to foriegn intelligence, all because of Article II? If this is the case, wouldn't the FISA law technically be unconstitutional? Why would this new bill even matter? Is Congress just wasting it's time (more so than usual)?
The relevant portion of the Truong decision does not revolve around the target of surveillance, but rather the power of the Executive to conduct foreign intelligence: whether this applies to a particular agent, organization or nation is irrelevant.
Aside from the embarrassment that is the Taylor ruling, the problem with the NSA coverage is the bulk of reporting has been ignorant of law in general and the case law in particular.
Originally Posted by drone:
No, that is not what I have said. FISA was passed in 1978 in the wake of Watergate. It was signed by President Carter. Even so, Carter then and every President thereafter has maintained that the bill did not impinge on the Executive's constitutional plenary powers.
So basically what you are saying, is that the Executive can pretty much do whatever it wants when it comes to foriegn intelligence, all because of Article II? If this is the case, wouldn't the FISA law technically be unconstitutional? Why would this new bill even matter? Is Congress just wasting it's time (more so than usual)?
Maybe this will help clarify: the three respective branches of government are distinct. Each derives its power from the Constitution. Because of this there is an inherent empowerment within their respective spheres. For example: the President could not write an Executive Order that nullified a Legislative statute. Similarly Congress could not issue a statue removing the President's right to veto. Based on Article II of the Constitution the President is considered preeminent in foreign policy. Federalist No. 74 illustrates the point: "Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand." Understanding this basic power of the Executive is why SCOTUS in the 1972 Keith Case refused to assert that there is a warrant requirement for surveillance of the agents of foreign powers operating in the United States:
"We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents. Nor does our decision rest on the language of 2511 (3) or any other section of Title III* of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security."
This Constitutional distinction is also the reason Congress stated in the Omnibus Crime Control and Safe Streets Act of 1968:
"Nor shall anything contained in this chapter be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government."
Thus FISA may expand Presidential power (by adding another voice of government to an issue) but it cannot impinge on the President's inherit Constitutional power.
Well, regardless of whether it's legal to wire-tap without FISA court approval or not, in the interests of national security, I think we can all agree that inforamtion gleaned from such a widespread, secretive and unregulated program should not be used for normal law enforcement (matters where national security is not a concern). All of us, that is, except Attorney General Gonzalez who just issued an opinion that he feels he has the right to use the same wiretaps to track down drug trafficking, overseas casinos, even medical marijuana usage.
If you don't want people to claim abuse of privelege, somebody ought to inform Gonzalez that he's the Attorney General, not Apollo Apotropaeus.
Originally Posted by Gelatinous Cube:
Or, we would devolve into chaos when government cannot act to enforce the laws of the land and Congress empties as terms expire and nobody manages to achieve the 75% required to be elected for the office.
Sorry to come so late in the threat with a quote from so early, but this brings up a good point. With only a 4% majority, the entire populace of the USA is represented as giving its tacit permission for such shenanagins.
To fix our country, and to stop the divisive votes that do nothing but give that one side with 51% reason to gloat whilc giving the other 49% become, for all intents and purposes, politically appressed, we should make it so that a "majority" is at least 75%.
Think about it: Not a presidential candidate in the last 20 years would have been elected if he had to get a 75% majority. We would actually have to get politicians that take a popular stand meaninful to the entirety of the people, instead of the extremist stands that rely on value voters, oppressed minorities, and a 1% swing vote.
Do you really think this a good idea GC? 30% of Americans think the US government was complicit in the WTC bombings in some fashion. That means we wouldn't even be able to launch an investegation into whether it really was Al-Queda, as we don't have a 75% majority that believes we were attacked.
I think you'd be damned hard pressed to get 75% of Americans to agree on anything.
Originally Posted by Gelatinous Cube:
There is nothing wrong with unwarranted wire taps. There are no shenanigans. You are confused.
Sorry to come so late in the threat with a quote from so early, but this brings up a good point. With only a 4% majority, the entire populace of the USA is represented as giving its tacit permission for such shenanagins.
Well, Pindar, you'd know more of this than I, so I'll defer to your recollection. But there's really two issues here on the table. The first is should the Justice Department have the right to use warrantless wiretaps in investegating possible upcoming acts of terrorism and other threats to security. Here, I say yes, they should (and I think they do, hence the FISA courts). The second is whether they should be able to use information they encounter in this effort to prosecute individuals on crimes that may not have had anything to do with security threats, such as an individual engaging in online gambling with an offshore casino or tax evasion through Cayman Island banking. I would say here, no. There is no imperative for security in this case, so why should the Justice Department be allowed to sidestep the 4th ammendment? Last I heard, Attorney General Gonzalez (or his aides) and the Senate Judiciary committe had locked horns over this issue.
Is this true, and if it is, where do you stand? (or would you stand?)
Originally Posted by Gelatinous Cube:
Then we will never, ever get anything done.
...we should make it so that a "majority" is at least 75%.
Originally Posted by Don Corleone:
I don't think you have to defer to my opinion. I presented some basic case law which is clear enough. The NSA warrantless surveillance is legally mundane. It only became an issue after the Times article in late 2005. You may recall that even through all the ballyhoo no one on Capital Hill called for the program to end. That alone is telling. One needs to make distinction between political posturing and legal reality.
Well, Pindar, you'd know more of this than I, so I'll defer to your recollection. But there's really two issues here on the table. The first is should the Justice Department have the right to use warrantless wiretaps in investegating possible upcoming acts of terrorism and other threats to security.
Originally Posted by :
I have never addressed this. I do not know if this is true. This is separate from the base legal question and speaks to procedure. However, the idea of investigation X uncovering malfeasance Y meaning Y is unprosecutable because it is not the original X seems strained. For example, if a car is pulled over on suspicion of a DUI and the officer finds bound children stuffed in the trunk he would and should be able to arrest the driver.
The second is whether they should be able to use information they encounter in this effort to prosecute individuals on crimes that may not have had anything to do with security threats, such as an individual engaging in online gambling with an offshore casino or tax evasion through Cayman Island banking. I would say here, no. There is no imperative for security in this case, so why should the Justice Department be allowed to sidestep the 4th ammendment? Last I heard, Attorney General Gonzalez (or his aides) and the Senate Judiciary committe had locked horns over this issue.
Is this true, and if it is, where do you stand? (or would you stand?)