America... Spying on Americans

FISA vs. the Constitution
Congress can't usurp the president's power to spy on America's enemies.

BY ROBERT F. TURNER
Wednesday, December 28, 2005 12:01 a.m. EST

In the continuing saga of the surveillance "scandal," with some congressional Democrats denouncing President Bush as a lawbreaker and even suggesting that impeachment hearings may be in order, it is important to step back and put things in historical context. First of all, the Founding Fathers knew from experience that Congress could not keep secrets. In 1776, Benjamin Franklin and his four colleagues on the Committee of Secret Correspondence unanimously concluded that they could not tell the Continental Congress about covert assistance being provided by France to the American Revolution, because "we find by fatal experience that Congress consists of too many members to keep secrets."

When the Constitution was being ratified, John Jay--America's most experienced diplomat and George Washington's first choice to be secretary of state--wrote in Federalist No. 64 that there would be cases in which "the most useful intelligence" may be obtained if foreign sources could be "relieved from apprehensions of discovery," and noted there were many "who would rely on the secrecy of the president, but who would not confide in that of the Senate." He then praised the new Constitution for so distributing foreign-affairs powers that the president would be able "to manage the business of intelligence in such manner as prudence may suggest."

In 1790, when the first session of the First Congress appropriated money for foreign intercourse, the statute expressly required that the president "account specifically for all such expenditures of the said money as in his judgment may be made public, and also for the amount of such expenditures as he may think it advisable not to specify." They made no demand that President Washington share intelligence secrets with them. And in 1818, when a dispute arose over a reported diplomatic mission to South America, the legendary Henry Clay told his House colleagues that if the mission had been provided for from the president's contingent fund, it would not be "a proper subject for inquiry" by Congress.


For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.

Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.

Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.

I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."

For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.

Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order." The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.


America is at war with a dangerous enemy.

we never did this when enaged in a cold war with the soviets, who in a blink could have wiped us off the face of the earth, but now, bcause 18 ragheads with boxcutters hijacked three planes we give up our freedoms?

too cheaply are such liberties offered up for a little safety.

We are not at war, and what ever authority the administration claims was granted Bush as CIC by the authorization to use force in Afghanistan was not indefinite or perpetual. It ended with the cessation of active combat in Afghanistan, according to the U.S. Supreme Court in the 2003 Hamdi Case (Section II of the Majority Opinion).

http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf

It ended around the time Bush began to exercise it.

The issue of congressional power conflicting with the executive branch's call for the use of CIC plenary power is laid out in Youngstown v. Sawyer and the steel mill seizures by the Army , and the SCOTUS came down on the side of congress, not the executive branch. they gave their reasoning and it does not support the current administraion's call for plenary power under the CIC in Article II

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579

from Justice Clark:

Quote:

"I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand."

Paraphrasing Justice Burton for today's issue: The controlling fact is that Congress, within its constitutionally delegated power, has prescribed for the US President specific procedures for intelligence gathering for use in meeting terrorism. Through the FISA laws Congress has reserved to itself the right to determine where and when to authorize surveillance in such an emergency. Under these circumstances, the President's actions invaded the jurisdiction of Congress. It violated the essence of the principle of the separation of governmental powers.


Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.

Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.

Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.

Ticomaya wrote:

"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."

Sorry that quote won't work.

In all three of the cases (Butenko, Truong, and Keith) the FISA Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. The issue in those cases was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitions in this area cannot bind the Executive branch.

With FISA a signed law, that Congressional prohibition was set.

Bush claims that FISA, a Congressional enactment that is clearly within the express powers of Congress, is nonetheless unconstitutional because it impinges upon the President's power as Commander in Chief as granted in Article II. Apparently, if FISA does not permit warrantless surveillance, then FISA is unconstitutional

So, the legal justification for President Bush's authorization of warrantless domestic electronic surveillance rests entirely on the argument that Article II of the Constitution vests the Executive with plenary Commander in Chief powers which can not be restricted by the other branches of our federal government.

The Bush proposition is that in time of war, the Commander in Chief powers granted the President by Article II of the Constitution are superior to the powers granted to the Congress by Article I, Section 8 of the Constitution. And accordingly, when they conflict, the President's Commander in Chief power prevails.

Two problems with that.

We are not at war, and what ever authority the administration claims was granted Bush as CIC by the authorization to use force in Afghanistan was not indefinite or perpetual. It ended with the cessation of active combat in Afghanistan, according to the U.S. Supreme Court in the 2003 Hamdi Case (Section II of the Majority Opinion).

http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf

It ended around the time Bush began to exercise it.

The other is laid out in Youngstown v. Sawyer: and the steel mill seizures
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579

from Justice Clark:

Quote:

"I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand."

Paraphrasing Justice Burton for today's issue: The controlling fact is that Congress, within its constitutionally delegated power, has prescribed for the US President specific procedures for intelligence gathering for use in meeting terrorism. Through the FISA laws Congress has reserved to itself the right to determine where and when to authorize surveillance in such an emergency. Under these circumstances, the President's actions invaded the jurisdiction of Congress. It violated the essence of the principle of the separation of governmental powers.

We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

(p. 9)

We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

(p. 10)

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955]

We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The pros-pect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

(p. 12)

... a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on Executive Power vested in the President by 1 of Art. II.

The 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.

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 question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.

Keep up people. the Keith decision was prior to FISA and Gorelick was talking about physical searches, which FISA had not addressed.

Shall we just send all of the FISA judges back to their regular court rooms? Let the president have whatever power he wants and claim it is to protect us? Let him do anything he wants just because he's the president?

I can't imagine a non-republican president doing the same things George has done and the Bush supporters not crying foul. Am I wrong?

squinney wrote:

Keep up people. the Keith decision was prior to FISA and Gorelick was talking about physical searches, which FISA had not addressed.

Shall we just send all of the FISA judges back to their regular court rooms? Let the president have whatever power he wants and claim it is to protect us? Let him do anything he wants just because he's the president?

I can't imagine a non-republican president doing the same things George has done and the Bush supporters not crying foul. Am I wrong?

If Clinton had taken this step to protect American citizens from terrorism, I would not be crying foul. The safety and security of this country and its citizens is of paramount importance. It does not appear to me that Democrats, by and large, agree with that.

Ticomaya wrote:

squinney wrote:

Keep up people. the Keith decision was prior to FISA and Gorelick was talking about physical searches, which FISA had not addressed.

Shall we just send all of the FISA judges back to their regular court rooms? Let the president have whatever power he wants and claim it is to protect us? Let him do anything he wants just because he's the president?

I can't imagine a non-republican president doing the same things George has done and the Bush supporters not crying foul. Am I wrong?

If Clinton had taken this step to protect American citizens from terrorism, I would not be crying foul. The safety and security of this country and its citizens is of paramount importance. It does not appear to me that Democrats, by and large, agree with that.

This Democrat certainly does not agree that safety is of paramount importance. Safety and freedom is a balancing act; perfect safety will require travel documents, unlimited search and seizure powers, government pensions, socialized medicine, a meteor defense system, etc.

Perhaps you were being hyperbolic; certainly I am.

Safety certainly can improve liberty, as I can walk the streets with little fear. But safety can be the enemy of liberty as well.

This is one of those times where the cost/benefit calculation does not favor the activities of the administration.

kuvasz wrote:

Yes, we know. So when in doubt, rely heavily on DailyKos, eh?

actually, Think Progress which lead to Kos. But why quibble.

kuv wrote:

Ticomaya wrote:

"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."

Sorry that quote won't work.

In all three of the cases (Butenko, Truong, and Keith) the FISA Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. The issue in those cases was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitions in this area cannot bind the Executive branch.

With FISA a signed law, that Congressional prohibition was set.

Bush claims that FISA, a Congressional enactment that is clearly within the express powers of Congress, is nonetheless unconstitutional because it impinges upon the President's power as Commander in Chief as granted in Article II. Apparently, if FISA does not permit warrantless surveillance, then FISA is unconstitutional

So, the legal justification for President Bush's authorization of warrantless domestic electronic surveillance rests entirely on the argument that Article II of the Constitution vests the Executive with plenary Commander in Chief powers which can not be restricted by the other branches of our federal government.

The Bush proposition is that in time of war, the Commander in Chief powers granted the President by Article II of the Constitution are superior to the powers granted to the Congress by Article I, Section 8 of the Constitution. And accordingly, when they conflict, the President's Commander in Chief power prevails.

Two problems with that.

We are not at war, and what ever authority the administration claims was granted Bush as CIC by the authorization to use force in Afghanistan was not indefinite or perpetual. It ended with the cessation of active combat in Afghanistan, according to the U.S. Supreme Court in the 2003 Hamdi Case (Section II of the Majority Opinion).

http://a257.g.akamaitech.net/7/257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03-6696.pdf

It ended around the time Bush began to exercise it.

The other is laid out in Youngstown v. Sawyer: and the steel mill seizures
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=343&invol=579

from Justice Clark:

Quote:

"I conclude that where Congress has laid down specific procedures to deal with the type of crisis confronting the President, he must follow those procedures in meeting the crisis; but that in the absence of such action by Congress, the President's independent power to act depends upon the gravity of the situation confronting the nation. I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand."

Paraphrasing Justice Burton for today's issue: The controlling fact is that Congress, within its constitutionally delegated power, has prescribed for the US President specific procedures for intelligence gathering for use in meeting terrorism. Through the FISA laws Congress has reserved to itself the right to determine where and when to authorize surveillance in such an emergency. Under these circumstances, the President's actions invaded the jurisdiction of Congress. It violated the essence of the principle of the separation of governmental powers.

Let me first correct your apparent misunderstanding of the joint resolution that authorizes the President to use military force against those responsible for the attacks on 9/11. There was no limitation to only using force against the Taliban in Afghanistan.

show where I stated the contrary.
If you feel you have some authority that shows such a limitation -- aside from the Hamdi opinion, which I analyze below -- please advise.

Straw man argument, that is not the issue.

Your application of the Hamdi opinion to the issue of whether the President is authorized to conduct warrantless searches is misguided.

No, its not. Article II defines CIC power in wartime. War has not been declared by Congress. No authorization exists for warrantless searches. Using the joint resolution of congress to support Bush in Afghanistan does not mean war has been declared and Bush can do whatever he wants without Congressional oversight or beyond what is prescribed by congress under FISA.

The Court emphasized that the context of that case was important: It dealt with a United States citizen captured in a foreign combat zone. Hamdi only dealt with the narrow issue of whether the detention of "enemy combatants" was authorized:

Quote:

We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

(p. 9)

just like the FISA Court when describing the inherent powers of the Executive branch when it too was ruling on only a narrow point of warrantless searches?

you cannot have it both ways, declare periferal comments in an opinion rise to the level of defining executive authority, then not accept it when it suits your argument elsewhere.

The Hamdi opinion is very narrow in scope, and only dealt with the issue of whether the government could detain individuals "for the duration of the particular conflict in which they were captured."

and like the FISA Court review that dealt only with the issue of warrantless searches where there was no proscription by congressional acts. yet you used that to confirm executive authorites when that issue was not within the scope of resolution by that court.

Quote:

We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the "necessary and appropriate force" Congress has authorized the President to use.

(p. 10)

The point in Hamdi was that Congress had clearly and unmistakably authorized detention in the narrow circumstances that were presented. The question then turned to the permissible length of that detention. In analyzing that issue, the Court restated the rule that "detention may last no longer than active hostilities.

Quote:

It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955]

The scope of Hamdi is very limited to the issue of detention of a United States citizen who had carried a gun against the United States, and had been detained on the battlefield in Afghanistan. The active combat he was partaking in was rather defined. The Court did not rule, as you say, that "we are not at war."

the court cannot rule on it. unconventional or not, congress has not declared war. so, for constitutional concerns of CIC power under Article II "we are not at war."

On the contrary, the Court recognized the unconventional nature of the war we are engaged in, and the fact that it could stretch on for generations.

Congress has not declared war.

The Court's decision to limit Hamdi's detention to the "active hostilities" in Afghanistan in no way seeks to limit the scope or duration of the Congressional resolution that authorized the President to use "all necessary and appropriate force" against "nations, organizations, or persons" associated with the 9/11 attacks.

Quote:

We recognize that the national security underpinnings of the "war on terror," although crucially important, are broad and malleable. As the Government concedes, "given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement." Ibid. The pros-pect Hamdi raises is therefore not far-fetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi's detention could last for the rest of his life.

(p. 12)

Regarding the 1952 case of Youngstown v. Sawyer you cite, I understand you believe the case to be instructive in it's limitation on Presidential authority, but I believe it to be entirely distinguishable. The subject matter in that case does not involve foreign intelligence surveillance during a time of war. It involves a federal take over of domestic steel plants to avoid a national strike. BTW, here's another quote from the Youngstown case:

Another of your strawman arguments.

The situation in the US during the Korean Conflict was a lot worse than today, Truman seized the mills as an inherent right acting as CIC under Article II and still the SCOTUS limited executive /CIC power.

Bush too has laid his argument that he is vested by Article II as CIC to do whatever he deems necessary. the discussion at hand, warrantless searches/wiretapping is just the incidental fact or subset of Bush's (and Truman's) application of the inherent powers of the CIC under Article II.

Justices Clark, Jackson, and Burton all made clear that the primary issue was the use of executive /CIC power under Article II. In that they deferred to congress's power, because congress had given specific direction to executive power in such a situation. just as congress gave specific direction to the office of the president with FISA.

Quote:

... a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on Executive Power vested in the President by 1 of Art. II.

The Supreme Court has acknowledged but not resolved the issue of whether searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power require a warrant. In the 1972 Keith case, 407 U.S. 297, the Court explicitly withheld judgment of warrantless searches with regard to agents of foreign powers:

Quote:

The 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.

Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the US that target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980).

These courts have held that the President has inherent authority to conduct warrantless searches to obtain foreign intelligence information.

each case cited was made prior to the reworking of FISA in '95 where FISA defined the power of the executive for investigatring inteligence matters.

the fact that Bush went to FISA over 1,000 times indicates that he did not feel the need to test that authority you say he is granted.

why test it now?
And the FISC Court of Review case, In re: Sealed Case No. 02-001, wrote what you above claim "won't work":

Quote:

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 logical conclusion is that FISA would be unconstitutional because it restricts warrantless searches/wirtaps. where did the FISA court say that?

The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.

You, Cyclops, and Debra_Law may want to believe this case law is not "definitive or conclusive" (Cyclops' words), but it is the best law at the present time. Perhaps the Supreme Court will take up this issue and put it to bed for good, but until that occurs, you do not have case law on your side of this argument.

sure do, Youngstown. you just don't admit it.

Kuvasz,
War was not declared in Korea,Vietnam,Bosnia,or in any other military action that the US has been in since WW2.
But,that has not stopped whatever president was in power at the time from exercising his war powers as he saw fit,up to and including domestic spying.

Ticomaya wrote:

Let me first correct your apparent misunderstanding of the joint resolution that authorizes the President to use military force against those responsible for the attacks on 9/11. There was no limitation to only using force against the Taliban in Afghanistan.

show where I stated the contrary.

Ticomaya wrote:

If you feel you have some authority that shows such a limitation -- aside from the Hamdi opinion, which I analyze below -- please advise.

Straw man argument, that is not the issue.

Ticomaya wrote:

Your application of the Hamdi opinion to the issue of whether the President is authorized to conduct warrantless searches is misguided.

No, its not. Article II defines CIC power in wartime. War has not been declared by Congress. No authorization exists for warrantless searches. Using the joint resolution of congress to support Bush in Afghanistan does not mean war has been declared and Bush can do whatever he wants without Congressional oversight or beyond what is prescribed by congress under FISA.

Ticomaya wrote:

The Court emphasized that the context of that case was important: It dealt with a United States citizen captured in a foreign combat zone. Hamdi only dealt with the narrow issue of whether the detention of "enemy combatants" was authorized:

Quote:

We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

(p. 9)

just like the FISA Court when describing the inherent powers of the Executive branch when it too was ruling on only a narrow point of warrantless searches?

you cannot have it both ways, declare periferal comments in an opinion rise to the level of defining executive authority, then not accept it when it suits your argument elsewhere.

Ticomaya wrote:

The Hamdi opinion is very narrow in scope, and only dealt with the issue of whether the government could detain individuals "for the duration of the particular conflict in which they were captured."

and like the FISA Court review that dealt only with the issue of warrantless searches where there was no proscription by congressional acts. yet you used that to confirm executive authorites when that issue was not within the scope of resolution by that court.

Ticomaya wrote:

The scope of Hamdi is very limited to the issue of detention of a United States citizen who had carried a gun against the United States, and had been detained on the battlefield in Afghanistan. The active combat he was partaking in was rather defined. The Court did not rule, as you say, that "we are not at war."

the court cannot rule on it. unconventional or not, congress has not declared war. so, for constitutional concerns of CIC power under Article II "we are not at war."

Ticomaya wrote:

On the contrary, the Court recognized the unconventional nature of the war we are engaged in, and the fact that it could stretch on for generations.

Congress has not declared war.

Ticomaya wrote:

Regarding the 1952 case of Youngstown v. Sawyer you cite, I understand you believe the case to be instructive in it's limitation on Presidential authority, but I believe it to be entirely distinguishable. The subject matter in that case does not involve foreign intelligence surveillance during a time of war. It involves a federal take over of domestic steel plants to avoid a national strike. BTW, here's another quote from the Youngstown case:

Another of your strawman arguments.

The situation in the US during the Korean Conflict was a lot worse than today, Truman seized the mills as an inherent right acting as CIC under Article II and still the SCOTUS limited executive /CIC power.

Bush too has laid his argument that he is vested by Article II as CIC to do whatever he deems necessary. the discussion at hand, warrantless searches/wiretapping is just the incidental fact or subset of Bush's (and Truman's) application of the inherent powers of the CIC under Article II.

Justices Clark, Jackson, and Burton all made clear that the primary issue was the use of executive /CIC power under Article II. In that they deferred to congress's power, because congress had given specific direction to executive power in such a situation. just as congress gave specific direction to the office of the president with FISA.

Ticomaya wrote:

The Supreme Court has acknowledged but not resolved the issue of whether searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power require a warrant. In the 1972 Keith case, 407 U.S. 297, the Court explicitly withheld judgment of warrantless searches with regard to agents of foreign powers:

Quote:

The 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.

Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the US that target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980).

These courts have held that the President has inherent authority to conduct warrantless searches to obtain foreign intelligence information.

each case cited was made prior to the reworking of FISA in '95 where FISA defined the power of the executive for investigatring inteligence matters.

the fact that Bush went to FISA over 1,000 times indicates that he did not feel the need to test that authority you say he is granted.

why test it now?

Ticomaya wrote:

And the FISC Court of Review case, In re: Sealed Case No. 02-001, wrote what you above claim "won't work":

Quote:

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 logical conclusion is that FISA would be unconstitutional because it restricts warrantless searches/wirtaps. where did the FISA court say that?

The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.

You, Cyclops, and Debra_Law may want to believe this case law is not "definitive or conclusive" (Cyclops' words), but it is the best law at the present time. Perhaps the Supreme Court will take up this issue and put it to bed for good, but until that occurs, you do not have case law on your side of this argument.

sure do, Youngstown. you just don't admit it.

mysteryman wrote:

Kuvasz,
War was not declared in Korea,Vietnam,Bosnia,or in any other military action that the US has been in since WW2.
But,that has not stopped whatever president was in power at the time from exercising his war powers as he saw fit,up to and including domestic spying.

Really? When did any president use warrantless searches or surveillence of US citizens in any of those time frames?

For someone that demands evidence of anyone being spied on before you will admit their rights are violated you are quick to claim it has been done before without a single piece of evidence to back up your claim.

'Warrantless' searches not unprecedented
By Charles Hurt
THE WASHINGTON TIMES
Published December 22, 2005

Previous administrations, as well as the court that oversees national security cases, agreed with President Bush's position that a president legally may authorize searches without warrants in pursuit of foreign intelligence.
"The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general," Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.
That same authority, she added, pertains to electronic surveillance such as wiretaps.
More recently, the U.S. Foreign Intelligence Surveillance Court -- the secretive judicial system that handles classified intelligence cases -- wrote in a declassified opinion that the court has long held "that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."
Such warrantless searches have been at the center of a political fight in Washington after the New York Times reported Friday that the Bush administration had a program to intercept communications between al Qaeda suspects and persons in this country, a story whose publication coincided with the congressional debate over reauthorizing the USA Patriot Act.
In a 2002 opinion about the constitutionality of the Foreign Intelligence Surveillance Act (FISA) and the USA Patriot Act, the court wrote: "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."
Indeed, previous administrations have used that same authority.
One of the most famous examples of warrantless searches in recent years was the investigation of CIA official Aldrich H. Ames, who ultimately pleaded guilty to spying for the former Soviet Union. That case was largely built upon secret searches of Ames' home and office in 1993, conducted without federal warrants.
In 1994, President Clinton expanded the use of warrantless searches to entirely domestic situations with no foreign intelligence value whatsoever. In a radio address promoting a crime-fighting bill, Mr. Clinton discussed a new policy to conduct warrantless searches in highly violent public housing projects.
Previous administrations also asserted the authority of the president to conduct searches in the interest of national security.
In 1978, for instance, Attorney General Griffin B. Bell testified before a federal judge about warrantless searches he and President Carter had authorized against two men suspected of spying on behalf of the Vietnam government.
That same year, Congress approved and Mr. Carter signed FISA, which created the secret court and required federal agents to get approval to conduct electronic surveillance in most foreign intelligence cases.
A Washington Post report at the time said the new FISA law permits "the government (primarily NSA with the occasional help of an FBI 'black bag job' or break-in) to continue electronic spying without a court order if it is directed solely at the premises or communications of 'official' powers, such as governments, factions or entities openly known to be directed and controlled by foreign governments."
The year after FISA became law, a columnist in The Washington Post described what could still happen to any person or group determined to be "an agent of a foreign power."
"Once the attorney general has made that finding about someone, then the FBI can spy on them or burglarize their offices," wrote William Greider in a May 1979 column.
The Bush administration and Republicans on Capitol Hill say terrorist cells in this country are precisely what those FISA loopholes were intended for, even if they don't represent a traditional enemy state.
"Following the 9/11 attacks, it was obvious that al Qaeda utilized high-tech communication systems and modified its communication methods to avoid surveillance," Sen. John Cornyn, Texas Republican, said.
Mr. Cornyn and other Republicans have agreed with Democrats that hearings are necessary to learn more about Mr. Bush's domestic spy policy. There remains disagreement, however, over whether those hearings should be open to the public.
One area certain to be discussed in any hearings would be the use of warrantless searches in previous administrations.
In an interview yesterday, Miss Gorelick acknowledged her testimony before Congress but said it pertained to presidential authority prior to 1994, when Congress expanded FISA laws. Left unanswered, she said, is whether that congressional action trumped the president's "inherent authority."
"The Clinton administration did not take a position on that," she said.

mysteryman wrote:

Kuvasz,
War was not declared in Korea,Vietnam,Bosnia,or in any other military action that the US has been in since WW2.
But,that has not stopped whatever president was in power at the time from exercising his war powers as he saw fit,up to and including domestic spying.

Really? When did any president use warrantless searches or surveillence of US citizens in any of those time frames?

For someone that demands evidence of anyone being spied on before you will admit their rights are violated you are quick to claim it has been done before without a single piece of evidence to back up your claim.

"Well, yeah, but they did it, too" is not an acceptable justification.

If Carter jumped off a pier, would you expect Bush to do it, too?

I'm saying that whether other presidents have done the same thing is not germane to the conversation.

kuvasz wrote:

Ticomaya wrote:

Let me first correct your apparent misunderstanding of the joint resolution that authorizes the President to use military force against those responsible for the attacks on 9/11. There was no limitation to only using force against the Taliban in Afghanistan.

show where I stated the contrary.

Sure. You said: "We are not at war, and what ever authority the administration claims was granted Bush as CIC by the authorization to use force in Afghanistan was not indefinite or perpetual. It ended with the cessation of active combat in Afghanistan, according to the U.S. Supreme Court in the 2003 Hamdi Case (Section II of the Majority Opinion). "

these is not the same things. saying that there is no limitation on using force against the taliban in afghanistan is not the same as saying that the authorization was not indefinite or perpetual.

kuvasz wrote:

Ticomaya wrote:

If you feel you have some authority that shows such a limitation -- aside from the Hamdi opinion, which I analyze below -- please advise.

Straw man argument, that is not the issue.

It is the issue as you framed it. You claimed the Hamdi opinion did something it did not do. My debunking your spurious claim is not a strawman.

no, i did not not. hamidi claimed that hostilities in afghanistan had ceased. you are arguing that even with that fact, bush still has inherent CIC plenary power under Article II.

kuvasz wrote:

Ticomaya wrote:

Your application of the Hamdi opinion to the issue of whether the President is authorized to conduct warrantless searches is misguided.

No, its not. Article II defines CIC power in wartime. War has not been declared by Congress. No authorization exists for warrantless searches. Using the joint resolution of congress to support Bush in Afghanistan does not mean war has been declared and Bush can do whatever he wants without Congressional oversight or beyond what is prescribed by congress under FISA.

War need not be declared by Congress, and you are not relying on the Hamdi opinion for this argument. In fact, the language in the Hamdi opinion defeats your ridiculous claim that we are not at war. In fact, it refers to it as an "unconventional war."

No, I am referring to the CIC power of the executive under Article II to do whatever it wants.. and in that case such powers are inherent and occur only by a declaration of war.

saying "we are at war" does not make it so under the constitution.

kuvasz wrote:

Ticomaya wrote:

The Court emphasized that the context of that case was important: It dealt with a United States citizen captured in a foreign combat zone. Hamdi only dealt with the narrow issue of whether the detention of "enemy combatants" was authorized:

Quote:

We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

(p. 9)

just like the FISA Court when describing the inherent powers of the Executive branch when it too was ruling on only a narrow point of warrantless searches?

you cannot have it both ways, declare periferal comments in an opinion rise to the level of defining executive authority, then not accept it when it suits your argument elsewhere.

I brought that up precisely because it is you who were stating the opinion of the FISC Court of Review was narrow, yet you then threw out Hamdi, which is so narrow it doesn't even say what you claim it says. I also knew you would not be able to see the distinction. The quote from the FISC Court of Review case says exactly what I claim it says. Your only complaint with it is that it is dicta, because that was not the issue before it. I concede as much. But that does not take away from the clear language of the FISC Court's opinion that it believes the President has the inherent authority you don't want him to have.

the FISA Court has no power to rule on that issue, and if it said the opposite of your position you would attack it as well.

As opposed to the Hamdi opinion, which did not limit the President's war powers to the battlefield of Afghanistan, as you claim.

kuvasz wrote:

Ticomaya wrote:

The Hamdi opinion is very narrow in scope, and only dealt with the issue of whether the government could detain individuals "for the duration of the particular conflict in which they were captured."

and like the FISA Court review that dealt only with the issue of warrantless searches where there was no proscription by congressional acts. yet you used that to confirm executive authorites when that issue was not within the scope of resolution by that court.

The Court acknowledged it was not the issue before it. It went on to say: "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."

What do you have to say about the plain language of the court's opinion? You don't agree with it? It wasn't the main issue to be decided by the Court? Fine, but that doesn't render the plain statement of this court, uttered in 2002, which is clearly in harmony with the 1972 Keith case and all Circuit Court opinions since then.

the FISA court did not and cannot rule on this issue. for you to state your position you have to concede that it was an act of judicial activism to do so, and disregards the expressed wishes of the legislative branch which curtailed executive power by statute

kuvasz wrote:

Ticomaya wrote:

The scope of Hamdi is very limited to the issue of detention of a United States citizen who had carried a gun against the United States, and had been detained on the battlefield in Afghanistan. The active combat he was partaking in was rather defined. The Court did not rule, as you say, that "we are not at war."

the court cannot rule on it. unconventional or not, congress has not declared war. so, for constitutional concerns of CIC power under Article II "we are not at war."

The court DID rule on it. You realize that besides arguing against the opinion of the FISC Court of Review, you are also now arguing against the Supreme Court in its Hamdi opinion? Wow.


how?

kuvasz wrote:

Ticomaya wrote:

On the contrary, the Court recognized the unconventional nature of the war we are engaged in, and the fact that it could stretch on for generations.

Congress has not declared war.

It doesn't have to.

for the executive to claim inherent plenary powers as CIC it does. the executive cannot just obey laws it sees fit to obey, especially when congress specifically has not granted such rights.

Bush attempted to gain such power in the US and was denied by congress in 2001.

kuvasz wrote:

Ticomaya wrote:

Regarding the 1952 case of Youngstown v. Sawyer you cite, I understand you believe the case to be instructive in it's limitation on Presidential authority, but I believe it to be entirely distinguishable. The subject matter in that case does not involve foreign intelligence surveillance during a time of war. It involves a federal take over of domestic steel plants to avoid a national strike. BTW, here's another quote from the Youngstown case:

Another of your strawman arguments.

The situation in the US during the Korean Conflict was a lot worse than today, Truman seized the mills as an inherent right acting as CIC under Article II and still the SCOTUS limited executive /CIC power.

Bush too has laid his argument that he is vested by Article II as CIC to do whatever he deems necessary. the discussion at hand, warrantless searches/wiretapping is just the incidental fact or subset of Bush's (and Truman's) application of the inherent powers of the CIC under Article II.

Justices Clark, Jackson, and Burton all made clear that the primary issue was the use of executive /CIC power under Article II. In that they deferred to congress's power, because congress had given specific direction to executive power in such a situation. just as congress gave specific direction to the office of the president with FISA.

No, this is your strawman. The issue is surveillance of foreign agents for intelligence gathering purposes. This is brought up in the Keith opinion ..... or have you conveniently forgotten about that? ("The 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.")

no, but Keith occured before FISA '95 and the issue was warrantless searches of foreign powers without prior congressional proscriptions on this power. what constituted "foreign powers under FISA definition 1801 included terrorists, but specifically withheld from warrantless seaches/wiretapping "terrorist" in section 1802.

you are again setting up the argument that because FISA restricts CIC powers of the executive, it is not constitutional. and the only support you have for that is the remark from the FISA court that has no authority to grant that.

kuvasz wrote:

Ticomaya wrote:

The Supreme Court has acknowledged but not resolved the issue of whether searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power require a warrant. In the 1972 Keith case, 407 U.S. 297, the Court explicitly withheld judgment of warrantless searches with regard to agents of foreign powers:

Quote:

The 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.

Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the US that target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980).

These courts have held that the President has inherent authority to conduct warrantless searches to obtain foreign intelligence information.

each case cited was made prior to the reworking of FISA in '95 where FISA defined the power of the executive for investigatring inteligence matters.

the fact that Bush went to FISA over 1,000 times indicates that he did not feel the need to test that authority you say he is granted.

why test it now?

"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."

kuvasz wrote:

Ticomaya wrote:

And the FISC Court of Review case, In re: Sealed Case No. 02-001, wrote what you above claim "won't work":

Quote:

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 logical conclusion is that FISA would be unconstitutional because it restricts warrantless searches/wirtaps. where did the FISA court say that?

The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.

You, Cyclops, and Debra_Law may want to believe this case law is not "definitive or conclusive" (Cyclops' words), but it is the best law at the present time. Perhaps the Supreme Court will take up this issue and put it to bed for good, but until that occurs, you do not have case law on your side of this argument.

sure do, Youngstown. you just don't admit it.

What about Keith and all of the cases since then that have dealt with this specific issue of warrantless surveillance for foreign intelligence purposes, not whether the government could seize domestic steel mills?

the "issue of warrantless surveillance for foreign intelligence purposes," is merely a by-product or action of the fundamental power that bush has claimed, viz., that as CIC under Article II he has plenary power.

Youngstown cites that such power (and not simply the specific actions taken using such power) can be restricted if congress has already addressed it by statute.