Bush allowed NSA to spy within USA without warrants

[Gawain of Orkeny]

"You do a lot of weird xxxx. But at least you don't xxxx with your own people."

Yeah I know dont bring up FDR and Linclon. Besides if you listend to my post on echelon you would know theve been spying on everything you post here since day one.

/edit: Gawain, there was a reason I edited that quote from my post. Make sure you do so, too.

[Xiahou]

The CIA has been cleaning house of Clinton-era cronies since Goss took charge- there was even a big stink about it when it started. I've heard from too many disgruntled ex-CIA agents running to the media to take their tirades too seriously, especially when they feel the need to cuss like sailors.

Speaking of running to the media though, whether it was legal or not- this was all a highly classified operation and therefore exempt from the "Whistle Blower" legal protections. I wonder if there will be an investigation into who the leaker was?

[Lemur]

There's no evidence that any of the people responding are from the CIA; that's your supposition. And what exactly is your relationship to the CIA, anyway? You post as though you know some people. Are you speaking from first-hand knowledge, or are you speaking from NewsMax knowledge?

[Xiahou]

"running to the media" Notice where I said that? Do you think I said that because, just maybe, I saw them whining about Bush on the same said "media"? I dont need top secret clearance to watch the news.

[Major Robert Dump]

I'm well aware the civil rights violations committed by Lincoln and they weren't unlike some of the things happening today. My asking people to stop comparing Bush to Lincoln was moreless in reference to "legacy" if you will.

Hard news Bush haters. It has come to my attention that recent previous presidents have done exactly what Bush did -- spying on citizens without court or NSA approval -- including Clinton and Carter.

While I still have questions concerning this issue, I now think this entire ordeal has officially been blown out of proportion.

I would also like to know how these yahoos on the intel committee are saying they never knew this was happening while Bush says he told them, like some verifiable documentation or something, there has to be a paper trail for this. Either someone is lying or someone is not doing their job (ie congressman not actually reading what they are voting on, and having staffers "break it down" for them instead...happens all the time in congress, but I can't imagine staffers being that involved in meetings of that calibre+

[Kralizec]

Since Lincoln and FDR did it, it must be all right for Bush to do it right? I mean, certainly TWAT is every bit as apocalyptic as the civil war or WWII was

[Gawain of Orkeny]

Since Lincoln and FDR did it, it must be all right for Bush to do it right? I mean, certainly TWAT is every bit as apocalyptic as the civil war or WWII was

Judging by 911 its even more of a threat.

[Major Robert Dump]

9/11 is a smudge in my armpit compared to the civil war. Yes, we were attacked and it was terrible, and the next day the country went about business as usual give a few snags. The Civil War, lol, and you guys comparing it and Lincoln to 9/11 and Bush. too funny, too funny....

[Red Harvest]

Judging by 911 its even more of a threat.

Yeah, we lost what, a million people on 9/11? Your comment illustrates zero sense of historical perspective.

[Red Harvest]

Speaking of running to the media though, whether it was legal or not- this was all a highly classified operation and therefore exempt from the "Whistle Blower" legal protections. I wonder if there will be an investigation into who the leaker was?

Considering that the activities being reported were illegal and by the highest level of government, they are safe from prosecution. Spin your fantasy, but the illicit nature of this required this sort of leak.

Oh, and the committee members had also raised objections about it sending letters to the admin, but did not go public. McCain says they should have gone public since they considered some fo the govt. actions illegal.

When your govt. is undertaking illegal activities under the guise of secrecy, you have no recourse within the law.

But, hey, this Administration has never given a rats ass about the law. It is morally and ethically bankrupt.

[Goofball]

More developments:
http://www.theglobeandmail.com/servl...International/

Judge resigns over Bush domestic spying program

if(typeof sIFR == "function"){ runSIFR(); }Wednesday, December 21, 2005 Posted at 10:40 AM EST
Associated Press

Washington — A U.S. federal judge has resigned from a special court set up to oversee government surveillance to protest the Bush administration's secret authorization of a domestic spying program, the Washington Post reported Wednesday.

The action by U.S. District Judge James Robertson stemmed from deep concern that the surveillance program that President George W. Bush authorized was legally questionable and may have tainted the work of Robertson's court, the newspaper said.
The Post quoted two associates of the judge.
White House press secretary Scott McClellan would not comment on Judge Robertson's reported resignation or the reasons cited for his departure. "Judge Robertson did not comment on the matter and I don't see any reason why we need to," Mr. McClellan said.
Judge Robertson was one of 11 members of the secret Foreign Intelligence Surveillance Court, which oversees government applications for secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage.
Quoting colleagues of Judge Robertson, the Post said the judge had indicated he was concerned that information gained from the warrantless surveillance under Mr. Bush's program subsequently could have been used to obtain warrants from the surveillance court.
The Post said Judge Robertson, without providing an explanation, stepped down from the court in a letter late Monday to Chief Justice John Roberts. He did not resign his parallel position as a federal district judge.
Supreme Court spokeswoman Kathy Arberg said early Wednesday she had no information to offer on the matter.
Judge Robertson was appointed a federal judge by then-president Bill Clinton in 1994. Chief Justice William Rehnquist later appointed Judge Robertson to the surveillance court as well.
Judge Robertson has been critical of the Bush administration's treatment of detainees at the U.S. naval prison at Guantanamo Bay, Cuba, most memorably in a decision that sidetracked the president's system of military tribunals to put some detainees on trial.
Judge Robertson's resignation was reported hours after Vice-President Dick Cheney strongly defended the surveillance program and called for "strong and robust" presidential powers.
Mr. Cheney — a former member of congress, defence secretary and White House chief of staff under President Ford — said executive authority has been eroding since the Watergate and Vietnam eras.
"I believe in a strong, robust executive authority and I think that the world we live in demands it," Mr. Cheney said.
Republicans said Congress must investigate whether Mr. Bush was within the law to allow the super-secret National Security Agency to eavesdrop — without warrants — on international calls and e-mails made from within the United States by Americans and others with suspected ties to al-Qaeda.
"I believe the Congress — as a co-equal branch of government — must immediately and expeditiously review the use of this practice," said Senator Olympia Snowe (R-Maine).
Ms. Snowe joined three other members of the Senate intelligence committee, including Nebraska Republican Chuck Hagel, in calling for a joint inquiry by the Senate judiciary and intelligence committees.
Mr. Bush and his top advisers have suggested senior congressional leaders vetted the program in more than a dozen highly classified briefings. Several Democrats said they were told of the program, but did not know the full details and had concerns.
West Virginia Senator Jay Rockefeller, the Senate intelligence committee's top Democrat, on Monday released a letter he wrote to Mr. Cheney in July 2003 that, given the program's secrecy, he was "unable to fully evaluate, much less endorse these activities."
Senate Intelligence committee chairman Pat Roberts (R-Kan.), pushed back Tuesday, saying that if Rockefeller had concerns about the program, he could have used the tools he has to wield influence, such as requesting committee or legislative action. "Feigning helplessness is not one of those tools," Mr. Roberts said.

[Gawain of Orkeny]

Yeah, we lost what, a million people on 9/11? Your comment illustrates zero sense of historical perspective.

It was the largest loss of life on american soil by a foriegbn attacker. Islamic terrorism is a bigger threat to america and our way of life than Nazi Germany ever was.

[Red Harvest]

Islamic terrorism is a bigger threat to america and our way of life than Nazi Germany ever was.

No, it is not. The biggest threat to our way of life is the "anything goes" approach that your conservative buddies are taking as a result of 9/11. The erosion or our way of life now is coming from within by those with a fascist approach to government.

How much rationing have we had since 9/11? How many have we sent off to war? Now compare that to WWII and tell me that our way of life was more threatened by AQ or by what the Nazi's threatened.

[Pindar]

Hello,

Arguing the NSA's overseas intercept program was illegal is problematic. All applicable Federal Court precedence support the inherent right of the President to conduct warrantless searches to obtain foreign intelligence information. A simple example is United States v. Truong Dinh Hung, 4th Cir. 1980: "We take for granted that the President does have that authority (the above noted warrantless searches) and, assuming that is so, FISA could not encroach on the President's constitutional power." Legally speaking: this is a non-issue.

I'm feeling very festive for some reason.

[Gawain of Orkeny]

Nice to see you back here Pindar. Hey did you read this also?

A Colloquy With the Times
Reporter Eric Lichtblau of the New York Times responded to the email I sent earlier today; we had the following exchange.

Me to Lichtblau:

Mr. Lichtblau, in your reporting in the Times you appear to have tried to create the impression that the NSA's overseas intercept program is, or may be, illegal. I believe that position is foreclosed by all applicable federal court precedents. I assume, for example, that you are aware of the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001, where the court said:
"The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. *** We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power."

In view of the controlling federal court precedents, I do not see how an argument can be made in good faith that there is any doubt about the NSA program's legality. Therefore, I wonder whether you are somehow unaware of the relevant case law. If you know of some authority to support your implication that the intercepts are or may be illegal, I would be interested to know what that authority is. If you are aware of no such authority, I think that a correction is in order.

Thank you.


Lichtblau to me:

You must not have read to the end of our original story last Friday. It quotes from the FISA appellate decision that you cite.
Me to Lichtblau:

That's great, but doesn't answer the question. It seems to me that the import of the Times' stories is to suggest that the NSA intercepts are, or may be, illegal. That implication is what gave your paper's reports the quality of a "scoop." Are you telling me that you knew all along that this wasn't true, and the intercepts are clearly legal? If not, what are you telling me?
Thanks for responding.


Lichtblau to me:

I'd refer you again to our story. There's an extensive section on the debate over whether the program was legal, including the FISA ruling you cite.
Me to Lichtblau:

Here's my problem with your coverage: as a legal matter, there isn't any debate. The authorities are all on one side; they agree that warrantless surveillance for national security purposes is legal. I think your articles misleadingly suggest that there is real uncertainty on this point, when there isn't. Thus, for example, you write:
Some officials familiar with it say they consider warrantless eavesdropping inside the United States to be unlawful and possibly unconstitutional, amounting to an improper search. One government official involved in the operation said he privately complained to a Congressional official about his doubts about the program's legality. But nothing came of his inquiry. "People just looked the other way because they didn't want to know what was going on," he said.
I don't think you should be quoting anonymous "officials" making incorrect assertions about legal issues, while not pointing out that their assertions are wrong. (I would also note that the NSA intercepts are not "inside the United States.") And I don't think that a partial sentence from one of the controlling decisions, buried at the end of a long article and not repeated in subsequent articles, removes the incorrect impression you convey that the NSA program is, in all likelihood, illegal. Also, with all due respect, I think your treatment of the 2002 FISA case is itself misleading. While you do quote part of the key sentence, you go on to suggest that the court left the issue in a state of ambiguity by writing:

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."
Those quotes had nothing to do with the court's recognition of the President's inherent power to surveil without a warrant to obtain foreign intelligence information, and did not in any way qualify the court's clear holding on that issue. You plucked them from another part of the opinion. The "dividing line" the court referred to was the "primary purpose" test that was established by the Truong decision and changed by Congress in the Patriot Act. The court noted that the "primary purpose" test was difficult to administer, which it saw as an argument in favor of the constitutionality of its revision by Congress. Contrary to the implication of your paragraph, this had nothing to do with the President's power to conduct warrantless surveillance.

In my opinion, you should not convey the impression to your readers that the NSA surveillance is likely illegal unless there is, at a minimum, a respectable argument, supported by legal authority, to that effect. Do you think there is such an argument? If so, what is it, and what is the authority?

Thanks again for responding.


Since I haven't heard from Mr. Lichtblau for some time, I'm going ahead and posting the discussion we've had so far. I hope that Mr. Lichtblau will respond to my criticisms of the Times' coverage in my last email; if so, I'll post his answer. In any event, we greatly appreciate his taking the time to engage us in this conversation.

And all you libs buy into the Times story.

[Red Harvest]

Hello,

Arguing the NSA's overseas intercept program was illegal is problematic. All applicable Federal Court precedence support the inherent right of the President to conduct warrantless searches to obtain foreign intelligence information. A simple example is United States v. Truong Dinh Hung, 4th Cir. 1980: "We take for granted that the President does have that authority (the above noted warrantless searches) and, assuming that is so, FISA could not encroach on the President's constitutional power." Legally speaking: this is a non-issue.

I'm feeling very festive for some reason.

There is a big problem with using that:

That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power. In approving the district court’s exclusion of evidence obtained through a warrantless surveillance subsequent to the point in time when the government’s investigation became “primarily” driven by law enforcement objectives, the court held that the Executive Branch should be excused from securing a warrant only when “the object of the search or the surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted ‘primarily’ for foreign intelligence reasons.”

Reads a bit differently doesn't it? The act was not in place for the period of time in which the ruling applied. And the evidence gathered later of criminal but not foreign agent/power was excluded. Now it really reads differently...

Although the Truong court acknowledged that “almost all foreign intelligence investigations are in part criminal” ones, it rejected the government’s assertion that “if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.

Might want to hold off on that eggnog.

And there is another problem, the President bypassed FISA altogether. It is not clear to me that he really had that authority. However, there is a belief by the Administration and its supporters that executive powers in "time of war" over ride everything else. And there is a FISA 2002 review court ruling to support it. Reading through sections of that review I'm completely unpersuaded by their reasoning. They seem to assume as a given that the President has any authority he wants and is unchecked, despite FISA. They see the FISA court only as an "amplifier." That is illogical. He doesn't need them at all if there is already a precedent.

This part is classic doublespeak

It was incumbent upon the 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.

Come again? They get to determine the boundaries, but there are none since they can't encroach?

It looks like Truong is being misconstrued as a precedent where it doesn't apply. Seems that the real test of whether FISA can limit the President's authority in any way has not actually been tested. Instead there have been some backroom standards applied and accepted. Has SCOTUS ever ruled on this? Because the only way I can accept the interpretation given is if FISA is unconstitutional in the first place.

By the way, I'll give you 5:1 odds that NSA's extra curriculars weren't limited to international intercepts, regardless of what has been stated officially so far.

The incident is a further example of why we erred in ever giving this particular President war powers of any kind.

[Gawain of Orkeny]

By the way, I'll give you 5:1 odds that NSA's extra curriculars weren't limited to international intercepts, regardless of what has been stated officially so far.

Yes put on your tin foil hat because thats the only way these things can possibly constituted as illegal. Dont hold your breath waiting for proof . There is no spying on ordinary americans . Only transmissions either from outside the US into the US or going out have been used and those intercepted in another nation. When you have some kind of proof to back up your accustaions come back and let us all in on it.
Would you like some egg nog? Better yet how about some Kool Aid? Or maybe some of this.

[Red Harvest]

Gawain, you sound like your typical Dubya cheerleading self. However, looking at that review, I found it badly flawed, and inherently contradictory. As such, I'm left with the impression that it's conclusions are wrong and would be overturned if they were reviewed.

Clearly Bush sought to flaunt in the face of FISA in spite of a review that should have given him plenty of latitude. In fact, that makes his actions even MORE disturbing. The review court had given him the discretion he sought, but rather than use it he bypassed the entire process. It is an abuse of power unless FISA itself is unconstitutional. So far I've not seen that used as the basic defense.

One could make the case for it being an abuse of power regardless. Executive powers can be misused, even if legal.

[Seamus Fermanagh]

Red Harvest...Cherry flavored?...I think maybe not.


In times of war, all executives charged with prosecuting the war are inclined to arrogate power and minimize opposition so as to prosecute the war more effectively.

The basic framework of our nation, however, tends towards the preservation of individual rights in any but the most extreme circumstances.

So far, we have found generally achieved a balance appropriate to the crisis in each conflict -- not perfect and not without mis-carries, but sufficient to its purpose.


I am, personally, annoyed that the Patriot Act's many useful provisions were not extended during this ongoing war against terrorism, but I was also not willing to see so many of them made permanent. This paralells my annoyance with the Padilla case -- whatever else he was/is Padilla was a U.S. Citizen, aprehended un-armed and on U.S. soil and deserves the process of court (under a full gag order if necessary for the national defense).

On the whole, I would have been happier with a true declaration of war and the passage of a Patriot Act with a war's conclusion plus 90 days sunset provision. Congress should NOT have abrogated its power in this matter. While I don't think Bush is abusing the privilege, I am reluctant to grant government power over me any more than absolutely necessary.

[Xiahou]

This keeps getting better and better... lets take a look at Executive Order 12949:

Section 1. Pursuant to section 302(a)(1) of the 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.

Yet another EO that allows for warrantless searches... and whose name is that at the bottom? William Jefferson Clinton. Again I'll point out, think of this what you will, but it is nothing new and certainly nothing unique to the Bush administration.

[Gawain of Orkeny]

On the whole, I would have been happier with a true declaration of war and the passage of a Patriot Act with a war's conclusion plus 90 days sunset provision. Congress should NOT have abrogated its power in this matter

I said the same thing earlier. Do you really think congress would actually declare war and give the president his war powers. Their crying as it is now. Thats why FDR and Linclon got away with so much. In times of war the president has vastly increased power in such matters. You know we can still claim we never lost a declared war. If we put all our might behind a war we win its that simple. The war powers act really is made to constrain presidential power and not give up congressional power but to increase it.

[Major Robert Dump]

This thread is a threat to national security. The fact that we are even discussing this empowers terrorists, so this thread should be removed.

[Tribesman]

Major Dump , the fact that you are talking about people discussing this topic means that you too are guilty of treason .
Be silent , it is the patriotic thing to do

[Adrian II]

Major Dump , the fact that you are talking about people discussing this topic means that you too are guilty of treason .
Be silent , it is the patriotic thing to do

Here comes your next intensive airport search, President Tribesmen.
It's in the air -- literally!

[Tribesman]

Unfortunately I am well used to it by now Adrian .
BTW they stopped my father on his way over on the ferry , they asked him if he had any guns in his car Yes mr. special branch would you like me to show you my smuggled weaponry

[Pindar]

Nice to see you back here Pindar. Hey did you read this also?

Hi Gawain,

That reference is funny. I hadn't read it. I guess great minds think alike. Actually it's rather basic Constitutional law stuff so I'm not surprised.

[Pindar]

Arguing the NSA's overseas intercept program was illegal is problematic. All applicable Federal Court precedence support the inherent right of the President to conduct warrantless searches to obtain foreign intelligence information. A simple example is United States v. Truong Dinh Hung, 4th Cir. 1980

There is a big problem with using that...

Hello Red Harvest

I think you are confused some. The above sentence is followed by a series of quotes. Your conclusions from these quotes seem to indicate a lack of careful reading. You note these are from a FISA 2002 Review Court Ruling. You then state you are unpersuaded by their reasoning. The problem is that for legal purposes court rulings have weight, personal sentiments do not. My involvement in this thread is concerned with the legal standing of warrantless searches only: not whether individuals find that agreeable or not. Now, I want you to note the 2002 ruling, it is: In re Sealed Case No. 02-001 and I will add for emphasis this was decided but three years ago. Note the following from the ruling:

"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. It was incumbent upon the 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 ruling found, consistent with Truong and all other court rulings on the subject that the President's inherent Constitutional authority cannot be negated. This authority includes warrantless searches in pursuit of foreign intellegence.

Has SCOTUS ever ruled on this?

Yes, it is known as the 1972 Keith Case: United States V. United States district court, 407 U.S. 297. Here the Court backed away from attempting to limit Presidential authority on conducting foreign affairs. I'll give you an example:

"We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. 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."

Might want to hold off on that eggnog.

Eggnog demands drinking and holiday festiveness demands being festive.

As a legal issue there is nothing to this. Political grandstanding has its own purposes and devices, but those are distinct from real issues of law. These should not be confused.



* This refers to a section of the Omnibus Crime Control and Safe Streets Act of 1968 that recognized the use of electronic surveilence. The passage the Justices were refering to was:

"Nothing contained in this chapter or in section 605 of the Communications Act of 1934 (48 Stat. 1143; 47 U.S.C. 605) shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. 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. The contents of any wire or oral communication intercepted by authority of the President in the exercise of the foregoing powers may be received in evidence in any trial hearing, [407 U.S. 297, 303] or other proceeding only where such interception was reasonable, and shall not be otherwise used or disclosed except as is necessary to implement that power."

[Red Harvest]

Hello Red Harvest

I think you are confused some.

Not as confused as you might suspect. While I lack the legal background to fully appreciate the nuances I am still very much unconvinced by the ruling. Whether or not it carries weight at the moment was not, and is not my point. For example I am unconvinced of the constitutionality of the SCOTUS ruling on private-to-private transfers via imminent domain. (I expect the court to reverse itself on that one somehow in a few years...a testcase will come along that makes it possible.)

The ruling found, consistent with Truong and all other court rulings on the subject that the President's inherent Constitutional authority cannot be negated. This authority includes warrantless searches in pursuit of foreign intellegence.

And again that is not addressing the issue of the 1978 act. Nor do the others that I've seen quoted. I am waiting for evidence that the 1978 act has been addressed by SCOTUS directly, instead of relying on precedents that don't fully apply (the tree of Truong based cases.)

THE issue I see it is that you have a legislatively established judicial review that is in effect being treated as unconstitutional. That's why I see the review ruling as so suspect. It is self contradictory.

The result is that you have executive branch folks claiming they can do anything they want outside of very specific constitutional limitations (even then only on Tuesdays... ) While on the other hand, the populace and legislative branch do not believe that to be the case. That is a BIG problem. The judicial branch is divided on the issue (hence the review...and the recent resignation.) I suppose that the act attempted to bridge a gap in a somewhat gray area. This president in his typical arrogant fashion has chosen to routinely as a matter of course ignore checks that would NOT have hindered him anyway. It seems that we might need to address this with an amendment for clarification, since some presidents abuse this sort of gentlemen's agreement. That might be avoided if SCOTUS weighs in.

Yes, it is known as the 1972 Keith Case: United States V. United States district court, 407 U.S. 297. Here the Court backed away from attempting to limit Presidential authority on conducting foreign affairs. I'll give you an example:

"We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. 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."

It does not appear to be the same thing. It is not addressing the gray area (at least as quoted.) There is a point at which the line is crossed by the president in these matters. It instead is making an almost offhand comment about it without determining where the line is. (That is part of the purpose for the special court, is it not?)

I won't have much chance to come back and debate this for some time but I'll leave you with the biggest hole in the executive authority argument as I see it: If the special court cannot even review the president's actions(assuming they cannot restrict even if they don't approve a warrant, and that request for the warrant can be done after the fact) then it appears the president is accountable to no one for anything, and can do whatever he chooses in secret without even review of whether or not he has exceeded his constitutional authority. Note that last part, because that is what I understand the special court is for to provide guidance on that aspect. I highly doubt that his argument will stand up to SCOTUS scrutiny, because he is taking it to that very extreme.

If he allowed the special courts review in seeking a warrant, then acted as he chose anyway, then he would still be on defensible ground according to the review--although he could be challenged. (However, we know he won't accept being challenged when wrong...so that is probably why he went around them.) By not allowing review for propriety he has overstepped into the shadowy side of authoritarianism.

It is quite probable in light of his administration's tactics used vs. Padilla, that Dubya is abusing the *actual* constitutional limitiations in this domestic/foreign spying matter under the guise of foreign agent/power authority. By having no effective review, he can do so without challenge--and a challenge that would be legitimate.

EDIT: Considering this last point the loss of legitimacy that occurs by bypassing the special court (which has been heavily restricted by the review court) leaves only one good explanation: his fishing expeditions are anticipated to routinely exceed the constitutional boundaries. Otherwise there would be no need for this.

[KafirChobee]

Does anyone here have any proof that Bush overstepped his bounds? Ive never seen so much BS.



LINK

Or better yet try this out for size.


LINKhttp://www.nationalreview.com/robbin...0512190859.asp

Actually, what Bush did, is called "abuse of power" - an impeachabled act. It is basically what nixon did, only Bush admits openly to it and is dillusional in his perception that somehow he has the right to do what ever he thinks is right as long as he says he is doing it in the national interest (same thing Nixon said, btw).

John Dean put it simply (after Bushy's speach about "why he did everything legal and within the law"): "Bush is probably not the first president to use such measures. He is, however, the first one to admit publically to committing an impeachable offense."

What was done was illegal. The really dumb thing about it is he coulda got approval for it overnight from his Republican congress. Not to mention that a system already exists allowing instant wiretapping.

BTW. As I recall, back in the earlies 90's the SupremeCourt ruled that cordless phones did not require "wiretaps" since they were in the "open air". Ergo, maybe Bush is right that he can investigate any American he or his friends choose to. I mean, anyone can listen into a cellphone call - the equipment to do so costs less than a good pair of slacks.

Still, it does demonstrate an arrogance and callousness of the written law to break the rules and proclaim it lawful (maybe he meant aweful - we all know how he mangles the English language). It's like the boy whose mother catches him with his hand in the cookie jar saying, "Well, you said I could have a cookie yesterday .... so I just figured that carried over to forever."

The impeachment of Bush might be fun. Maybe we'll make it a tradition and do it for all our future Presidents.

[Pindar]

Not as confused as you might suspect. While I lack the legal background to fully appreciate the nuances I am still very much unconvinced by the ruling. Whether or not it carries weight at the moment was not, and is not my point.

Personal sentiments carry no legal force. The point you have chosen to engage over is the legal issue. Therefore to argue the NSA program is illegal one must demonstrate the illegality and provide support for the conclusion. You have not done this. I have already provided a few simple court rulings that clearly assert a stance quite opposite of your own. You asked for a legal tree let me list a few more case for you:

-2002 In re Sealed Case No. 02-001:

"It was incumbent upon the 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."

-1984 United States v. Duggan, 743 F.2d 59:

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

-1980 United States v. Truong:

"For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations."

-1977 United States v. Buck, 548 F.2d 871

"Foreign security wiretaps are a recognized exception to the general warrant requirement…"

-1974 United States v. Butenko, 494 F.2d 593

"In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”

-1972 United States v. United States District Court, 407 U.S. 297

"[T]he instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."

-1970 United States v. [Cassius] Clay, 430 F.2d 165

"We…discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest."

There is a consistent line of judicial thought that reinforces Presidential prerogative regarding foreign surveillance. This really is a non-issue. The only real flurry is from media that do not know the law.

I won't have much chance to come back and debate this for some time but I'll leave you with the biggest hole in the executive authority argument as I see it: If the special court cannot even review the president's actions(assuming they cannot restrict even if they don't approve a warrant, and that request for the warrant can be done after the fact) then it appears the president is accountable to no one for anything, and can do whatever he chooses in secret without even review of whether or not he has exceeded his constitutional authority.

OK, if this is your basic issue let me explain. The three respective branches of government are coequal. 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. 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, but it cannot impinge on the President's inherit Constitutional power. The case can actually be made much stronger, but this should be sufficient.