Ticomaya wrote:Debra_Law wrote:Ticomaya wrote:Debra_Law wrote:What portion of FISA is unconstitutional? Is that portion unconstitutional on its face or as applied? May the unconstitutional provision or application be severed from the statute consistently with congressional intent?
Is there some particular reason you and Cyclops desire to rehash this all over again? You've already asked this question ... I suggest you go back and re-read my response.
You evaded then; you're evading now. The fact that you can't answer means you can't support your position.
I did not evade then. You insisted then that the entire statute is either unconstitutional in its entirety and void
ab initio, or it is constitutional and the president has no authority to override a constitutional enactment by executive order. However, I believe that if the statute can be read in such a way to remain Constitutional, it should be read that way, but to the extent that it directly interferes with the President's constitutional authority it is unconstitutional. The canon of statutory construction to avoid Constitutional doubt must be followed if there is a fairly possible way to interpret FISA in such a way that would avoid any such Constitutional questions. One way to do that is to construe the AUMF as Congressional authorization for the President's program. And of course under the test in Youngstown the AUMF brought the foreign intelligence surveillance to a Category I, where the President has the most authority.
Of course I'm not alone in my opinion on this matter. Here is a portion of a letter to the House Judiciary Committee from Constitutional Law professor John Eastman, testifying regarding the NSA matter:
Quote:Curtiss-Wright provides powerful support for the President’s position. In that case, adopting the views expressed by John Marshall while serving in Congress prior to his appointment as Secretary of State and ultimately as Chief Justice of the United States, the Supreme Court recognized that “[t]he President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.” 299 U.S., at 319 (citing Annals, 6th Cong., col. 613 (Mar. 7, 1800) (statement of Rep. Marshall). As “sole organ” in the foreign affairs arena, the President has inherent constitutional authority—indeed, the constitutional duty, see U.S. Const. art. IV, ยง 4; The Prize Cases, 67 U.S. (2 Black) 635, 638 (1863)—to conduct surveillance of communications with enemies of the United States and people he reasonable believes to be working with them, in order to prevent attacks against the United States. Were FISA to be interpreted in such a fashion as to restrict the President’s power in this arena, it may well be unconstitutional—something that the FISA drafters themselves recognized. See H.R. Conf. Rep. No. 95-1720, at 35, reprinted in 1978 U.S.C.C.A.N. 4048, 4064. Congress cannot by mere statute restrict powers that the President holds directly from the Constitution itself. John Marshall’s 1800 statement to Congress dealt with an attempt by Congress to circumscribe the President’s powers in the negotiation of treaties, much like the interpretations of the FISA statute being pushed by some in Congress is an attempt to circumscribe the President’s power to conduct foreign intelligence surveillance, yet the Supreme Court in Curtiss-Wright was manifestly clear that Congress had no authority to intrude upon the President’s constitutional powers in the foreign arena : “Into the field of negotiation [of treaties] the Senate cannot intrude; and Congress itself is powerless to invade it.” Curtiss-Wright, 299 U.S., at 319. The reason for the Court’s statement is particularly germane to the present controversy: “[The President] has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results.” Id., at 320 (emphasis added).
It should be noted that this Administration is not the first to make such claims. Indeed, as the DOJ Report correctly notes, similar arguments have been advanced, successfully, by every administration since electronic surveillance technology was developed. The notion that Congress cannot by mere statute truncate powers the President holds directly from the Constitution is a common feature of executive branch communications with the Congress. Two examples from the DOJ Report are particularly revealing: Griffin Bell, President Jimmy Carter’s Attorney General, testified during debate in Congress over the adoption of FISA that, although FISA did not recognize any inherent power of the President, it “does not take away the power [of] the President under the Constitution.” DOJ Report at 8 (citing Foreign Intelligence Electronic Surveillance Act of 1978: Hearings on H.R. 5764, H.R. 9745, H.R. 7308, and H.R. 5632 Before the Subcomm. on Legislation of the House Comm. on Intelligence, 95th Cong., 2d Sess. 15 (1978) (Statement of Attorney General Bell)). President Clinton’s Deputy Attorney General, Jamie Gorelick, made a similar point while testifying before Congress when amendments to FISA were being considered: “[T]he Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes . . . .” DOJ Report at 8 (citing “Amending the Foreign Intelligence Surveillance Act: Hearings Before the House Permanent Select Comm. On Intelligence, 103d Cong. 2d Sess. 61 (1994) (statement of Deputy Attorney General Jamie S. Gorelick)).
Granted, some in Congress may think this analysis affords too much power to the President; but their beef is with the drafters of our Constitution, not with the current President who, following the example of a good number of his predecessors, has determined it necessary to exercise the full extent of his constitutional powers in order to defend our nation against attack. Our nation’s Founders created a “unitary executive” (that is, an executive branch headed by a single person rather than a committee, who is responsible for the actions of the entire executive branch and accountable to the people), strong enough to respond to wha tever threatened the security of our nation and people, with “secrecy and dispatch” if necessary. And it made the Executive largely independent of the Legislature, particularly in the foreign policy arena. As the Supreme Court noted in Bowsher, “unlike parliamentary systems, the President, under Article II, is responsible not to the Congress but to the people, subject only to impeachment proceedings which are exercised by the two Houses as representatives of the people.” 478 U.S., at 722; see also id., at 727 (“The dangers of congressional usurpation of Executive Branch functions have long been recognized. ‘[T]he debates of the Constitutional Convention, and the Federalist Papers, are replete with expressions of fear that the Legislative Branch of the National Government will aggrandize itself at the expense of the other two branches’” (citing Buckley v. Valeo, 424 U.S. 1, 129 (1976))).
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You're still evading. The doctrine of constitutional avoidance cannot be applied in the manner you're suggesting. Your attempt to do so defies the entire concept of constitutional avoidance and only demonstrates how ridiculous your arguments are in your attempt to justify the president's illegal spying program.
FISA does not infringe upon the president's power to obtain "foreign intelligence." FISA generally allows the government to conduct electronic surveillance (searches and seizures of electronic communications) without court approval when the government targets foreign powers and agents of foreign powers EXCEPT when the target is a
United States person (a citizen or legal resident). In other words, FISA limits the ability of the president to conduct warrantless domestic surveillance of United States Persons.
Senator Leahy stated, "This law was enacted to define how domestic surveillance for intelligence purposes can be conducted while protecting the fundamental rights of Americans."
No one can deny that Americans have a fundamental right to be free from unreasonable government intrusions into their privacy. United States persons (and even illegal aliens in some circumstances) are protected by the Fourth Amendment from unreasonable government searches and seizures. Warrantless searches and seizures of United States persons are presumptively unreasonable and violate the limitations placed on the government by the Constitution in the Fourth Amendment. The government may rebut that presumption of unreasonableness if the warrantless search or seizure falls within a recognized exception to the warrant requirement. There is no national security exception to the warrant requirement. There is, however, an exigent circumstances exception.
Before September 11, 2001, FISA contained an exception that allowed the government to commence electronic surveillance in an emergency situation for 24 hours in advance of obtaining court approval. After September 11, 2001, when Congress passed the Patriot Act, FISA was amended and the period of time for the government to deal with exigent circumstances without court approval was expanded to 72 hours. In other words, when the President proposed the Patriot Act and asked Congress for an expansion of time to conduct warrantless surveillance of United States persons before obtaining a court order, Congress gave the President what he wanted.
In the event of a war, FISA also allows the president to conduct domestic surveillance of United States persons without court approval for 15 days after a war commences. At the president's request, the Foreign Intelligence Surveillance Act (FISA), has been amended five times since 9/11. However, the president never once asked Congress to amend FISA and expand the 15-day period wherein the government may conduct warrantless surveillance of United States persons. The existence of this 15-day war exception in FISA negates the president's claim that the AUMF authorizes him to conduct warrantless surveillance of United States persons indefinitely (now for a period exceeding four years).
FISA and AUMF are not inconsistent or conflicting acts of Congress. Both acts can be read together to allow the President to conduct warrantless surveillance of United States person for a period not exceeding 15 days after the war (use of military force) commenced. Inasmuch as the President failed to obtain an extension of that 15-day period, the President's statutory authority to conduct warrantless surveillance of U.S. persons ended long ago. FISA clearly prohibits the president's warrantless domestic spying program that has operated for many years past the 15 days authorized by the statutory war exception.
Your deceptive reliance on the "doctrine of consitutional avoidance" has no application in this matter.
To apply the doctrine, you must identify a provision of FISA that may be interpreted in a manner that renders the provision unconstitutional. Then you must ask whether there is another reasonable interpretation of the provision, consistent with legislative intent, that could be applied to AVOID the constitutional problem.
Here's an example. In Apprendi v. New Jersey, the Supreme Court reviewed the challenged provision of the state's sentence enhancement statute. The statute, on its face, provided that the maximum penalty would be increased (doubled) if the sentencing court, sitting without a jury, determined by the preponderance of the evidence that the crime was motivated by hate (racial animus). The due process clause of the Constitution requires that a JURY find that the government prove each and every element of the crime charged beyond a reasonable doubt. Any fact that increases the penalty is an element of the crime.
Accordingly, the New Jersey sentencing enhancement statute was unconstitutional on its face. The Court could not reasonably interpret the clear language of the statute in a manner to avoid the constitutional defect. It's the legislature's job to write statutes. It would violate the doctrine of separation of powers if courts rewrote unconstitutional statutes to make them constitutional. The Court could not strike the portions of the statute that were unconstitutional without negating legislative intent that a sentencing court (rather than a fact-finding jury) would find an essential fact constituting an element of the crime by the preponderance of the evidence (rather than beyond a reasonable doubt).
If a statute is unconstitutional on its face, it is void
ab initio. Because the New Jersey statute was unconsitutional on its face, the statute was void. There was no valid law that would allow the state to double the maximum sentence.
I cannot find any provision of FISA that is unconstitutional on its face. The government has never argued that FISA is unconstitutional on its face. On the contrary, the government considers FISA to be a valuable tool and continues to use it. The government embraces FISA as Congress wrote it and as Congress intended it because it allows the government to lawfully conduct electronic surveillance of United States persons providing that the government can meet the "watered down" probable cause standard. The government doesn't have to demonstrate probable cause that the target is engaged in crime (e.g., terrorism, espionage, sabotage, etc.). All the government must show is probable cause to believe that the target is an agent of a foreign power. Without meeting that minimal standard to the satisfaction of a neutral decisionmaker (FISA court), our government has no legal basis or authority to spy on its own people.
See Attorney General Gonzales's testimony before the U.S. Senate Judiciary Committee:
Quote:HATCH: You use FISA all the time, don't you?
GONZALES: FISA is an extremely important tool in fighting the war on terror.
GONZALES: And I know today there's going to be some discussion about whether or not we should amend FISA.
I don't know that FISA needs to be amended per se. Because when you think about it, FISA covers much more than international surveillance. It exists even in the peacetime.
And so when you're talking about domestic surveillance during peacetime, I think the procedures of FISA, quite frankly, are quite reasonable.
And so that's one of the dangers of trying to seek an amendment to FISA is that there are certain parts of FISA that I think provide good protections. And to make an amendment to FISA in order to allow the activities the president has authorized, I'm concerned will jeopardize this program. . . .
KENNEDY: We're sending the wrong message to those that are on the front lines of the NSA that maybe someday they may actually be prosecuted, criminally or civilly. We're sending a message to the courts that perhaps the materials that we're going to take from -- let me just say from eavesdropping or signal intelligence may not be used in the court, again prosecuting Al Qaida, people we really want to go after, because it wasn't done legally. . . .
So we have to get it right. Because if we don't get it right, we're going to find that we have paid a very harsh price on it.
Some of those toughest, meanest and cruelest members of Al Qaida may be able to use illegality in the court system to escape justice. Maybe or maybe not, but why take a chance?
Source:
Transcript of Hearing before the U.S. Senate Judiciary Committee.
And therein lies the true problem with the President's warrantless domestic spying program. FISA, as it currently exists, is NOT unconstitutional on its face. It carefully balances the compelling interests of the government to conduct domestic surveillance of United States persons for intelligence gathering purposes against the compelling interests of the American people in the protection of their fundamental rights to be free of unreasonable government intrusions into their privacy. So long as the government complies with FISA, meets the watered-down probable cause standard, and obtains court approval, then the evidence gathered pursuant to FISA court authorization is admissible in the prosecution of suspected terrorists. If FISA is violated, both the exclusionary rule embodied in the Constitution and the exclusionary provisions of FISA itself prevent the government from using or disclosing the unlawfully gathered information/evidence.
(As noted previously in the article posted by BBB, administration officials are trying to sneak information into court proceedings that they gathered from the presiden'ts unlawful spying program without disclosing the source. If asked where the information came from, administration officials are telling prosecutors to drop the case rather than reveal the source of the information. This is additional proof that the administration is aware that they are gathering the information illegally in violation of FISA and unconstituionally in violation of the targets' fundamental rights.)
If FISA was amended to statutorily authorize the president's warrantless domestic surveillance of United States persons, THEN FISA would be rendered unconstitutional on its face. Neither a congressional statute nor a presidential order can trump the Fourth Amendment. Not even the existence of a war can negate the limitations placed on government powers for the purpose of securing the people's rights against governmental abuses. And that is another instance where the Bush administration errs. It considers FISA merely a tool that it may use or ignore at Bush's pleasure. Bush will use FISA when he wants to gather information that will be admissible in court . . . but he otherwise ignores it when he thinks it gets in his way. But FISA is not a mere government tool. It was intended to get in the President's way and to prevent him from exercising unchecked powers against our own people. It's a LIMITATION that Congress found necessary to place on the executive branch due to its extensive history of widespread abuses of its surveillance powers.
Quote:DURBIN: . . . During the course of this hearing, you have referred to FISA several times as "a useful tool, a useful tool in wiretapping and surveillance."
DURBIN: And I've thought about that phrase because it's a phrase that's been used by the White House too.
Referring to FISA as a useful tool in wiretapping is like referring to speed limits and troopers with radar guns as useful tools on a motoring trip.
I think FISA is not there as a useful tool to the administration. It is there as a limitation on the power of a president when it comes to wiretapping.
And I think your use of that phrase, "useful tool," captures the attitude of this administration toward this law: We'll use it when it doesn't cause a problem; we'll ignore it when we have to."
Source
The doctrine of constitutional avoidance does not apply to statutes that are unconstitutional on their face. As set forth in the example given, the New Jersey sentence enhancement statute was unconstitutional on its face. A court cannot rewrite a statute that is unconstitutional on its face.
Again: To apply the doctrine, you must identify a provision of FISA that may be interpreted in a manner that renders the provision unconstitutional. Then you must ask whether there is another reasonable interpretation of the provision, consistent with legislative intent, that could be applied to AVOID the constitutional problem
The doctrine of constitutional avoidance applies to a statute where one interpretation of a statute would render it unconstitutional and another interpretation would render it constitutional. To avoid declaring the statute unconstitutional, a court will apply the interpretation that renders the statute valid.
An example would be a sentencing enhancement statute that merely asserts that "a court may enhance the maximum sentence upon a finding that the crime was motivated by hate based on the victim's race, nationality, gender, or sexual orientation."
A court could interpret the statutory provision to mean that the court, sitting without a jury, may find the existence of a sentencing enhancement factor by the preponderance of the evidence. But this interpretation would render the statute unconstitutional under the holding in
Apprendi.
A court could also interpret the statutory provision to mean, once a jury has determined that the sentencing enhancement factor exists beyond a reasonable doubt, then the court may enhance the maximum sentence. This reasonable interpretation of the statutory provision would render the provision constitutional and would avoid the constitutional question.
FISA clearly requires the executive branch to obtain court approval to conduct domestic electronic surveillance of United States persons except for the first 15 days after a war commences and except under exigent circumstances when there isn't enough time to get advance court approval. In the latter case, the government may commence and continue electronic surveillance so long as the government obtains court approval within 72 hours.
How do we apply the doctrine of constitutional avoidance to "reasonably" interpret FISA's statutory provisions that clearly LIMIT the president's ability to conduct domestic surveillance of United States persons to mean that there are NO LIMITS?
It can't be done.
The doctrine of constitutional avoidance does NOT apply to FISA as Tico claims that it does.
FISA is either constitutional on its face and the president MUST comply with the law, or
FISA is unconstitutional on its face and is VOID.
The only way that FISA can possibly be found to be unconstitutional on its face is if Congress had no power to limit the president's ability to conduct domestic surveillance of OUR OWN PEOPLE. One thing that the Court in
Youngstown held for sure is when the president directs his war powers INWARD--directs those powers at our own people--then CONGRESS most certainly has legislative power to regulate that power.
Under Justice Jackson's framework, the president's power is at its zenith when the president acts within the authority granted by Congress. When combining FISA with the AUMF, President Bush's power to conduct warrantless domestic surveillance of United States persons was at its zenith,
but only for 15 days after the war commenced. Unless the president obtained an extension of that 15-day statutory period from Congress--and the president failed to do so even though he requested amendments to FISA on five occasions since 9/11--the president's authority to conduct warrantless domestic surveillance ended long ago.
Inasmuch as Congress has spoken and FISA prohibits electronic surveillance of United States persons without FISA court approval, the president's domestic spying program is UNLAWFUL. He is a LAWBREAKER. He has committed an indictable and an impeachable offense.
