America... Spying on Americans

DrewDad wrote:

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

Actually,it is.
If there was no outcry from the dems,if they had no objections then,then it is extremely hypocritical and purely partisan for them to be complaining 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."

As illustrated by a flood of cases before us this Term, e. g., Laird v. Tatum, No. 71-288; Gelbard v. United States, No. 71-110; United States v. Egan, No. 71-263; United States v. Caldwell, No. 70-57; United States v. Gravel, No. 71-1026; Kleindienst v. Mandel, No. 71-16; we are currently in the throes of another national seizure of paranoia, resembling the hysteria which surrounded the Alien and Sedition Acts, the Palmer Raids, and the McCarthy era. Those who register dissent or who petition their governments for redress are subjected to scrutiny by grand juries, 7 by the FBI, 8 or even by the military. 9 Their associates are interrogated. [407 U.S. 297, 330] Their homes are bugged and their telephones are wiretapped. They are befriended by secret government informers. 10 Their patriotism and loyalty are questioned. 11 [407 U.S. 297, 331] Senator Sam Ervin, who has chaired hearings on military surveillance of civilian dissidents, warns that "it is not an exaggeration to talk in terms of hundreds of thousands of . . . dossiers." 12 Senator Kennedy, as mentioned supra, found "the frightening possibility that the conversations of untold thousands are being monitored on secret devices." More than our privacy is implicated. Also at stake is the reach of the Government's power to intimidate its critics.

When the Executive attempts to excuse these tactics as essential to its defense against internal subversion, we are obliged to remind it, without apology, of this Court's long commitment to the preservation of the Bill of Rights from the corrosive environment of precisely such expedients. 13 [407 U.S. 297, 332] As Justice Brandeis said, concurring in Whitney v. California, 274 U.S. 357, 377 : "Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty." Chief Justice Warren put it this way in United States v. Robel, 389 U.S. 258, 264 : "[T]his concept of `national defense' cannot be deemed an end in itself, justifying any . . . power designed to promote such a goal. Implicit in the term `national defense' is the notion of defending those values and ideas which set this Nation apart. . . . It would indeed be ironic if, in the name of national defense, we would sanction the subversion of . . . those liberties . . . which [make] the defense of the Nation worthwhile."

The Warrant Clause has stood as a barrier against intrusions by officialdom into the privacies of life. But if that barrier were lowered now to permit suspected subversives' most intimate conversations to be pillaged then why could not their abodes or mail be secretly searched by the same authority? To defeat so terrifying a claim of inherent power we need only stand by the enduring values served by the Fourth Amendment. As we stated last Term in Coolidge v. New Hampshire, 403 U.S. 443, 455 : "In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law [407 U.S. 297, 333] and the values that it represents may appear unrealistic or `extravagant' to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won . . . a right of personal security against arbitrary intrusions . . . . If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important." We have as much or more to fear from the erosion of our sense of privacy and independence by the omnipresent electronic ear of the Government as we do from the likelihood that fomenters of domestic upheaval will modify our form of governing. 14 [407 U.S. 297, 334]

Ticomaya wrote:

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.

Hold on. You just said it again: "... using force against the taliban in afghanistan ...." Why are you limiting the AUMF to the Taliban in Afghanistan?

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.

Yes ... hostilities in Afghanistan had ceased. So? The opinion said nothing about that being a limit on the AUMF.

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.

It does when the Congress authorizes the use of military force. Congress has Constitutional authority to enact both declarations of war and authorizations for the use of force. When it does either, the President has War Powers.

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.

Again, your claim that the FISC Court of Review doesn't have the authority to rule on whether or not the President has inherent authority to conduct warrantless searches does not take away from the clear message in that case that the President, in fact, does hold that inherent authority.

I assure you, the judges that decided that case know more about the issue than you do.

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

"Judicial activism"? No, I don't have to concede it was "an act of judicial activism," and whether or not it "disregards the expressed wishes of the legislative branch" is of no importance. Because if the President holds that inherent authority, which the FISC court and all those other courts believe he does, that authority is retained whether or not the legislature passes a law that purports to curtail or amplify that authority.

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?

Because Hamdi was decided in the context of the authority of the President to detain "enemy combatants" during a time of war.

Had the Hamdi Court felt the President didn't have that power because the US wasn't at war, it would have ruled differently. And it wouldn't have referred to the present war as a "war."

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.

The President has those powers when an AUMF has been executed.

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.

You are suggesting that the power of the President to conduct warrantless searches is terminated upon the passage of FISA? I refer you back again to the FISC Court of Review opinion which specifically debunks that claim. That appears to be the latest opinion of the current state of this law, whether you want to believe it or not.

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.

Youngstown did not relate to warrantless searches for foreign intelligence purposes, a power the Supreme Court specifically declined to limit in its Keith ruling ... which came well-after the Youngstown opinion.

After Carter allowed the US embassy in Iran to be overrun and the Americans taken hostage,I would push him off the pier.

DrewDad,
are you finally admitting that other presidents did the same thing that you are attacking Bush for doing?

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] 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.

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

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."

If we ASSUME that the president has inherent constitutional power to conduct warrantless searches to obtain foreign intelligence information, do we also ASSUME that power is limitless--without boundaries? Do we assume that Congress has NO POWER to make laws concerning the manner in which the president is allowed to exercise his "inherent" powers?

The president does NOT have inherent constitutional power to conduct warrantless surveillance of Americans. His powers have limits. He can't evade the limitations placed on his powers by the Fourth Amendment.

NO! Clinton and Carter DID NOT allow warrantless searches of American citizens. Stop spreading this ridiculous Republican lie.

....

This Republican Lie about Clinton and Carter having done it in the past has already been shot down with the truth on most news shows - 'cept perhaps Fox which I do not watch. Don't try spreading it here.

NO! Clinton and Carter DID NOT allow warrantless searches of American citizens. Stop spreading this ridiculous Republican lie.

CLINTON DID NOT ORDER WARRANTLESS SEARCHES OF AMERICAN CITIZENS
Here's what Clinton signed:

Quote:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] 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.

You don't have to be a lawyer to understand that Clinton allowed warrantless searches if and only if the AG followed section 302(a)(1). What does section 1822(a) require?


the "physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers." Translation: You can't search American citizens.

and there is "no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person." Translation: You can't search American citizens.

Moreover, Clinton's warrant waiver consistent with FISA refers only to physical searches. "Physical searches," as defined by 1821(5), exclude electronic surveillance.


CARTER DID NOT AUTHORIZE WARRANTLESS SEARCHES OF AMERICAN CITIZENS

And now, Carter's turn:

Quote:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

Here, Carter refers to "electronic surveillance," rather than "physical searches" like Clinton. But again, Carter limits the warrantless surveillance to the requirements of Section 1802(a). That section requires:


the electronic surveillance is solely directed at communications exclusively between or among foreign powers. Translation: You can't spy on American citizens.

there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party. Translation: You can't spy on American citizens.


Section 1803(a)(2) requires that the Attorney General report to Congress (specifically, the House and Senate Intelligence Committees) about whether any American citizens were involved, what minimization procedures were undertaken to avoid it and protect their identities, and whether his actions comply with the law.

In both cases there were limitations, exclusions of US citizens and checks and balances.

BUSH'S ORDER IS UNPRECEDENTED AND ILLEGAL

Bush's order marks the first time that an American President has unilaterally turned our nation's massive spying apparatus against its own citizens. Unlike the Carter order, Bush has not followed the check-and-balance requirements of FISA. And unlike Clinton, his order allows the government to spy on communications of ordinary Americans.

And there have been reports of Purely Domestic Intercepts


This Republican Lie about Clinton and Carter having done it in the past has already been shot down with the truth on most news shows - 'cept perhaps Fox which I do not watch. Don't try spreading it here.

§ 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

(a)

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

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

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

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

(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

if the Attorney General reports such minimization procedures and any changes thereto to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence at least thirty days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

(2) An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General’s certification and the minimization procedures adopted by him. The Attorney General shall assess compliance with such procedures and shall report such assessments to the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence under the provisions of section 1808 (a) of this title.

(3) The Attorney General shall immediately transmit under seal to the court established under section 1803 (a) of this title a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of Central Intelligence, and shall remain sealed unless—

(A) an application for a court order with respect to the surveillance is made under sections 1801 (h)(4) and 1804 of this title; or

(B) the certification is necessary to determine the legality of the surveillance under section 1806 (f) of this title.

(4) With respect to electronic surveillance authorized by this subsection, the Attorney General may direct a specified communication common carrier to—

(A) furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carrier is providing its customers; and

(B) maintain under security procedures approved by the Attorney General and the Director of Central Intelligence any records concerning the surveillance or the aid furnished which such carrier wishes to retain.
The Government shall compensate, at the prevailing rate, such carrier for furnishing such aid.

(b) Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

§ 1809. Criminal sanctions

(a) Prohibited activities

A person is guilty of an offense if he intentionally—

(1) engages in electronic surveillance under color of law except as authorized by statute; or

(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

Er... where does it state that those were the result of warrantless searches and/or warrentless wiretaps, MM?

Hopefully, this was done through good police work. The kind that stands up in court.

Government officials credited the new program with uncovering several terrorist plots, including one by Iyman Faris, an Ohio trucker who pleaded guilty in 2003 to supporting al-Qaida by planning to destroy the Brooklyn Bridge, the report said.

Faris' lawyer, David B. Smith, said on Friday the news puzzled him because none of the evidence against Faris appeared to have come from surveillance, other than officials eavesdropping on his cell phone calls while he was in FBI custody.

And did it say that the FISA provisions would have kept the intelligence from being gathered?

Can any tell me what D.Law et.al are arguing?

Are the "bushwackers" arguing that GW should not have approved warrantless surveilance or should he have obtained warrants first?

Sounds to me like you did not want him to even get warrants.

woiyo wrote:

Can any tell me what D.Law et.al are arguing?

Are the "bushwackers" arguing that GW should not have approved warrantless surveilance or should he have obtained warrants first?

Sounds to me like you did not want him to even get warrants.

I want him to obey the law.

woiyo wrote:

Can any tell me what D.Law et.al are arguing?

Are the "bushwackers" arguing that GW should not have approved warrantless surveilance or should he have obtained warrants first?

Sounds to me like you did not want him to even get warrants.

I want him to obey the law.