America... Spying on Americans

You avoid the main issue of giving a US President the authority to gather foreign inteliigence on US Soil and spout your concern about the Consititution.

You show your location as Germany. Are you a US Citizen?

Debra_Law wrote:

Even if we (the PEOPLE of the United States) assume that the President had inherent constitutional power to conduct warrantless searches to obtain foreign intelligence information, Congress has chosen to regulate that power. We (the PEOPLE) KNOW that Congress has EXPLICIT constitutional power to make rules for government. We KNOW that Congress has EXPLICIT power to enact laws to regulate the manner in which the PRESIDENT may execute his constitutional powers.

Let me add an observation from an originalist point of view. I looked up that clause in "The Founder's Constitution", a reference book that seeks to illuminate the founding-era understanding of its language. (Link here.) I could not find a single founding-era reference restricting Congress's power to regulate the executive's conduct of the war. But I did find a reference to Joseph Story's discussion of that power in hisCommentaries . It makes it very clear that Congress's ability to restrain the executive's war-making power is a deliberate feature of the constitution, not a bug in it.

Joseph Story wrote:

In Great Britain, the king, in his capacity of generalissimo of the whole kingdom, has the sole power of regulating fleets and armies. But parliament has repeatedly interposed; and the regulation of both is now in a considerable measure provided for by acts of parliament. The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive.

The "Commander in Chief" section of "The Founder's Constitution" (link here) points to even more founding era documents. They explicitly acknowledge the dangers to a free country that would arise if the president, as commander in chief, had unrestrained power. Here again, early legal commentators explicitly refer to the powers of Congress to regulate and restrain the president. As founding-era interpretations of the constitution clearly show, the need to counterbalance effective war-making with the protection of a free society runs as a continuous thread throughout your early constitutional history. Nothing fundamental about President Bush's claims is new in this regard.

As every reader can confirm with a Google search, you and I, Debra, have had many disagreements about originalism. I know you don't have too much respect for my approach to reading the constitution. Therefore I find it important to point out that in this case, your approach and mine seem perfectly compatible. The legal activists in this case are the conservatives, who want courts to re-write the constitution rather than applying it. Even worse, they want the president to secretly re-write it, too. Please, Debra, accept my apologies for the severe lack of principle that my fellow originalists are showing in this thread. I am sure they will eventually come to their senses.

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.

Tico, your repeated listing of the FISA statement that they do not limit the power of the Exec is immaterial. It is not FISA that limits the President's power, it is the consitution itself.

You forget that the primary responsibility of the Prez is to defend the laws of America, and he cannot break Article II or the Fourth Amendment legally, even in defense of the nation. The 'emergency' scenario is bullsh*t as well, because it is quite obvious this situation is used for far more than just emergencies.

Come to think of it, I'm not sure the president can legally order others to break the law either; so there is actually a whole string of people who are in trouble here. This is exacerbated by the fact that there apparently were many who voiced concerns or refused to go along with the illegal spying plans of Bush.

Cycloptichorn

woiyo wrote:

You avoid the main issue of giving a US President the authority to gather foreign inteliigence on US Soil and spout your concern about the Consititution.

In all due respect, you don't get to decide what is the main issue here. The main issue for me is the rule of law in America, so that's what I choose to spout concern about. Please respect this choice of priorities as a matter of common courtesy, just as I respect yours.

woiyo wrote:

You show your location as Germany. Are you a US Citizen?

I am a citizen of Germany and a lawful permanent resident of the United States (aka "Green Card holder"). I currently live in Germany. May I ask why that matters to you with regard to this discussion?

Cycloptichorn wrote:

Tico, your repeated listing of the FISA statement that they do not limit the power of the Exec is immaterial. It is not FISA that limits the President's power, it is the consitution itself.

You forget that the primary responsibility of the Prez is to defend the laws of America, and he cannot break Article II or the Fourth Amendment legally, even in defense of the nation. The 'emergency' scenario is bullsh*t as well, because it is quite obvious this situation is used for far more than just emergencies.

Come to think of it, I'm not sure the president can legally order others to break the law either; so there is actually a whole string of people who are in trouble here. This is exacerbated by the fact that there apparently were many who voiced concerns or refused to go along with the illegal spying plans of Bush.

Cycloptichorn

I keep repeating the quote for all on this thread that would prefer to ignore it .... including you.

Here .... read it again,


"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." -- In re: Sealed Case No. 02-001 (FISC Court of Review, 2002)

parados wrote:

The parts ignored by Tico in In re: Sealed Case No. 02-001 (FISC Court of Review, 2002)

Quote:

the court found that the
government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government's application for a surveillance order contains detailed information to support its contention that the target, who
is a United States person, is aiding, abetting, or conspiring with others in international
terrorism.

Quote:

In approving the district court's exclusion of evidence obtained through a warrantless surveillance subsequent to the point in time when the government's investigation became "primarily" driven by law enforcement objectives, the court held that the Executive Branch
should be excused from securing a warrant only when

And most importantly is the CONCLUSION in the document that Tico seems to want to pull one sentence out of..

Quote:

We, therefore, believe firmly, applying the balancing test
drawn from Keith, that FISA as amended is constitutional because the surveillances it
authorizes are reasonable.

Note, they only rule on FISA as WRITTEN. They don't rule on the constitutionality of warrantless survellience in general. They do state this however.

Quote:

The Supreme Court's special needs
cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an
automobile stop accompanied by questioning.

Show me where I've ignored those parts of the opinion.

Why are you ignoring this part:

Quote:

"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." -- In re: Sealed Case No. 02-001 (FISC Court of Review, 2002)

simply because it is only a part of the commentary on whether Truong articlates the appropriate constitituional standard to "balance of the legitimate need of the government for foreign intelligence information to protect against national security threats with the protected rights
of citizens," and without the previous paragraphs, is without context.

The words "FISA does not encroach on the President's constitutional power" was referring to the situation faced by the Truong court "in the case before it."

FISA had not been enacted at the time the events and facts involved in that case took place, which is why the President's constitutional power in the absence of congressional action was the matter at issue in Truong. That's why in cases subsequent to the passage of FISA "the question before us is the reverse."

The Bush administration's argument is that the FISA is unconstitutional to the extent that it interferes with the president's supposed plenary power to prosecute a war -- an undeclared war mind you -- in his role as commander and chief. They are not making much of that explicit legal argument on the matter since it was only a couple of paragraphs in the five page opinion by DOJ on the warrantless NSA wiretapping issue. Apparently, they are smart enough to recognize that explicit fascism doesn't sell too well in America.

Basically, under the "legal theory" being promulgated here, the President, and by extension the entire Executive Branch is immune to the Fourth Amendment's stipulations against unreasonable searches and seizures and requirements for warrants whenever the president wishes.

We are supposed to "trust" him.

The operative question here is whether the FISA review court's commentary about whether FISA bounds the president's ability to surveil without warrants establishes any sort of precedent or caselaw. By offering up repeatedly the statement above whenever "Youngstown" is referenced as countering executive authority of the CIC under Article II when Congress employs its own legislative authority under Article I Section 8, apparently you do. What evidence is forthcoming that such commentary is considered established precedence or caselaw?

and if you do so preoclaim it, what argument is offered that establishing such executive authority is not subject to Judicial review and counters the significant discussion in the Federalist Papers that attacks such unbridled authority held by the executive.

Ticomaya wrote:

Cycloptichorn wrote:

Tico, your repeated listing of the FISA statement that they do not limit the power of the Exec is immaterial. It is not FISA that limits the President's power, it is the consitution itself.

You forget that the primary responsibility of the Prez is to defend the laws of America, and he cannot break Article II or the Fourth Amendment legally, even in defense of the nation. The 'emergency' scenario is bullsh*t as well, because it is quite obvious this situation is used for far more than just emergencies.

Come to think of it, I'm not sure the president can legally order others to break the law either; so there is actually a whole string of people who are in trouble here. This is exacerbated by the fact that there apparently were many who voiced concerns or refused to go along with the illegal spying plans of Bush.

Cycloptichorn

I keep repeating the quote for all on this thread that would prefer to ignore it .... including you.

Here .... read it again,


"We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." -- In re: Sealed Case No. 02-001 (FISC Court of Review, 2002)

Foolishness! As I said earlier, it isn't FISA that limits the President's authority, it is the Constitution itself!

Therefore, the FISA comment and the illegality of Bush's actions are not mutually exclusive. You really shouldn't have to have this repeated to you.

Cycloptichorn

It will be recalled that the case that set forth the primary purpose test as
constitutionally required was Truong. The Fourth Circuit thought that Keith's balancing
standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with
a pre-FISA surveillance based on the President's constitutional responsibility to conduct the
foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it
drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4,
it had no occasion to consider the application of the statute carefully. The Truong court, as
did all the other courts to have decided the issue, held that the President did have inherent
authority to conduct warrantless searches to obtain foreign intelligence information.26 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 operative question here is whether the FISA review court's commentary about whether FISA bounds the president's ability to surveil without warrants establishes any sort of precedent or caselaw. By offering up repeatedly the statement above whenever "Youngstown" is referenced as countering executive authority of the CIC under Article II when Congress employs its own legislative authority under Article I Section 8, apparently you do. What evidence is forthcoming that such commentary is considered established precedence or caselaw?

and if you do so preoclaim it, what argument is offered that establishing such executive authority is not subject to Judicial review and counters the significant discussion in the Federalist Papers that attacks such unbridled authority held by the executive.

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.

See Kuvasz' response above for why I believe the quote you have provided from the FISC court is not definitive.

You are claiming the constitution represents a contradiction in itself; the president cannot be tasked with upholding the laws of America and simultaneously be allowed to break the laws of America, unless he is above the law; a notion that the vast majority of Americans would undoubtedly disagree with.

I don't pretend to be a lawyer, so I can't quote case law to you,

It is not a grey area.

You'd better pray that it doesn't turn out that Domestic-domestic calls were monitored, as has been reported, becuase your argument will be torn to shreds.

Cycloptichorn

I don't believe the president has the inherent power to break the Constitution of America, sorry. I think such a statement is a contradiction in itself. I strongly disagree with the idea that these court decisions give the president the ability to break the laws of the constitution.

Tico, this is not written in stone yet since this can be taken to the Supreme Court.

No, I don't agree with the interpretation that the constitution allows the president unlimited spying on domestic-international calls without a warrant. It completely ignores the Fourth amendment rights of the domestic partner in the call, as well as their right to be presumed innocent. It also allows the president to violate his oath to uphold the laws of the country, because the constitution doesn't say 'except when the president is looking for foriegn intelligence' in the fourth amendment.

Are you claiming that the fourth amendment does not, in fact, exist for the purposes of foreign intelligence gathering?

If the president has the power to ignore the 4th amendment for the purpose of foreign intelligence gathering, does he have the power to ignore all of them?

Cycloptichorn