America... Spying on Americans

Thus the difference. Some automatically distrust the governemnt and say "How do you know the information is being used for foreign intelligence and not other purposes? " while others say that until evidence is provided that proves otherwise, we can trust our government to do as it is saying.

kuvasz wrote:

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.

You are mischaracterizing my response to your DailyKos inspired citation to the Youngstown opinion.

I shall let pass without comment that your own arguments are coming from the likes of Assrockett at Powerline and other right wing blog sites.

But, I am not mischaracterizing your argument. You are attempting to avoid the fundamental issue decided by Youngstown because it undermines yours and Bush's attack on the Constitution.

In response to your reliance on Youngstown, I have distinguished Youngstown as not dealing with foreign intelligence surveillance,

So what? Yours is a distinction without a difference, and nothing but obfustication of the fundamental issue at stake.

"Foreign intelligence surveillance" is merely incidental to the issue. The fundamental issue is the attempt to exercise "inherent" Executive authority in both cases, not the incidentals. The incidentals do not matter, be it steel mill seizures or foreign intelligence surveillance. In both circumstances the Executive branch used an argument that it had an "inherent" constitutional right to do whatever it wanted. In both cases, Congress expressed its will by prior statute that the Executive branch did not. And "Youngstown" already dealt with this.

And it should be pointed out that in 2001, George Bush readily signed the law that delinated restrictions on his authority to wiretap without warrant, the Patriot Act.

which is the specific subject matter of the cases I've identified. In addition, I've not only offered up the FISC Court of Review opinion,

The quote was commentary to the courts ruling. It was not itself the court's ruling. In fact, the FISA Appeals Court did not rule on the issue of warrantless searches when Congress specifically forbade them. Nor did Keith below.

I have specifically pointed out the 1972 Keith opinion, 407 U.S. 297 -- which was obviously decided after Youngstown -- where the Supreme Court 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.

They do not rule on the issue at hand or what Youngstown decided, whether the Executive could bypass the Congressional intent via laws to do whatever it wants.

Nor are we are dealing with today's incidentals exclusively with foreign powers, but also American citizens on American soil.

I have also offered up all of the circuit courts applying Keith to the foreign intelligence context which 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).

The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct. And none of the authorities you cite conclude that the President has such a royal power.

All of those courts held that the President has inherent authority to conduct warrantless searches to obtain foreign intelligence information.

You are arguing that Bush has the right to enage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.

Ticomaya wrote:

You are mischaracterizing my response to your DailyKos inspired citation to the Youngstown opinion.

I shall let pass without comment that your own arguments are coming from the likes of Assrockett at Powerline and other right wing blog sites.

Ticomaya wrote:

I have also offered up all of the circuit courts applying Keith to the foreign intelligence context which 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).

The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct. And none of the authorities you cite conclude that the President has such a royal power.

All of those courts held that the President has inherent authority to conduct warrantless searches to obtain foreign intelligence information.

You are arguing that Bush has the right to enage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.

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.

We need to take a stand; we need to IMPEACH the tyrant.

Your argument has now turned toward the IDIOTIC and ABSURD.

Instead of addressing the real issue of HOW CAN A PRESIDENT EXECUTE ACTIONS IN THE BEST INTEREST OF THE SECURITY OF THIS NATION, you jump right to impeachment.

A President MUST, during a time of war, have the ability to do the things GW has done and should continue to do relative to foreign intel gathering on US soil.

Yet, it is apparent you do not care about that. You only care about finding SOMETHING, ANYTHING to remove GW from office due to your illogical emotion of hatred.

If you are an attorney, you should be ashamed of yourself and you are an embarrasement to the Bar.

You know darn well, that something might be wrong with the system, yet you blame GW and ignore the system.

Let's back up a second. The president signs and implements a constitutionally-suspect Executive Order that says the NSA may eavesdrop on certain international communications within the United States without going through the procedures set forth in the Foreign Surveillance Intelligence Act. Then the President and his tribunes take great pains to declare that proper procedures are in place within the executive branch (read: the NSA) to ensure that the domestic spying program is properly limited.

This, the president says, is why he feels comfortable bypassing Congress and the specially-designed FISA courts. Then, within only a few days, we learn that the procedures that were supposed to protect us from NSA excesses are simply not good enough. Can you better understand why so many lawmakers, lawyers and judges are freaking out?

While the White House is trying to explain all of this it also might want to try to explain why the president, in Buffalo in April 2004 during a speech about the Patriot Act, told an audience this: "… there are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order.

Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so."
The president said this several years after he signed that Executive Order abandoning the requirement of a court order to "chase down terrorists." I don't expect the president to voluntarily share in public our strategies for gathering intelligence.

But, I don't expect him to affirmatively lie, either.

That's a ridiculous poll

Ticomaya wrote:

That's a ridiculous poll

As of the time I posted the poll, it elicited 176,337 responses.

86 percent of the people responding to the poll were of the opinion that President Bush's actions justify impeachment.

You can call it ridiculous if you want; but it does indicate that a fairly large number of people are extremely unhappy with a president who LIES to their faces and grabs dictatorship powers behind their backs.

Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. A Rasmussen Reports survey found that just 23% disagree.

Quote:

Sixty-four percent (64%) of Americans believe the National Security Agency (NSA) should be allowed to intercept telephone conversations between terrorism suspects in other countries and people living in the United States. A Rasmussen Reports survey found that just 23% disagree.

Here's what's interesting. Think about it. Only 64% believe the NSA should be allowed to intercept phone conversations between terrorism suspects...



The question doesn't say "the right to intercept calls between Americans or Americans making overseas calls." It actually says "between terrorists..."

And only 64% agree with that???? Holy ****! Why isn't that number higher?

kuvasz wrote:

Ticomaya wrote:

You are mischaracterizing my response to your DailyKos inspired citation to the Youngstown opinion.

I shall let pass without comment that your own arguments are coming from the likes of Assrockett at Powerline and other right wing blog sites.

It appears you failed to let it pass without comment. In any event, I was unaware until you mentioned it. Whomever "Assrockett" is, he/she sounds like a shrewd fellow.

Actually, he's an idiot. See below

Quote:

It must be very strange to be President Bush. A man of extraordinary vision and brilliance approaching to genius, he can't get anyone to notice. He is like a great painter or musician who is ahead of his time, and who unveils one masterpiece after another to a reception that, when not bored, is hostile.

http://powerlineblog.com/archives/011183.php[/color]

kuvasz wrote:

Ticomaya wrote:

I have also offered up all of the circuit courts applying Keith to the foreign intelligence context which 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).

The issue is not whether the President has this authority to eavesdrop without a warrant but whether it is legal for him to do so in the face of a Congressional law which makes it a crime to engage in such conduct. And none of the authorities you cite conclude that the President has such a royal power.

All of those courts held that the President has inherent authority to conduct warrantless searches to obtain foreign intelligence information.

You are arguing that Bush has the right to enage in conduct which Congress made it a crime to engage in, and there is nothing in the law which gives a President that right. To the contrary, under our system of Government, the President does not possess the authoritarian right to engage in behavior which Congress expressly prohibits under the law.

Am I expressing your Youngstown argument correctly to say you think the President has inherent authority only if the Congress says he does? That by enacting the FISA, the Congress removed the President's inherent authority to act in response to a foreign attack?

No, you are not expressing an adversary's argument correctly. As usual you are setting up a sophist, Straw man argument to suit your purpose.

Let us go back to the source.

Assistant Attorney General Baldridge, arguing on behalf of the Truman Administration, made arguments about Presidential power akin to those of the Bush Administration:

[quote]The Court: s it not . . . your view that the powers of the Government are limited by and enumerated in the Constitution of the United States?

Mr. Baldridge: That is true, Your Honor, with respect to legislative powers.

The Court: But it is not true, you say, as to the Executive?

Mr. Baldridge: No. Section 1, of Article II of the Constitution . . . reposes all of the executive power in the Chief Executive. . . . In so far as the Executive is concerned, all executive power is vested in the President. In so far as legislative powers are concerned, the Congress has only those powers that are specifically delegated to it, plus the implied power to carry out the powers specifically enumerated.

The Court: So, when the sovereign people adopted the Constitution, it enumerated the powers set up in the Constitution but limited the powers of the Congress and limited the powers of the judiciary, but it did not limit the powers of the Executive. Is that what you say?

Mr. Baldridge: That is the way we read Article II of the Constitution. . . . It is our position that the President is accountable only to the country, and that the decisions of the President are conclusive. . . . [H]aving a broad grant of power[,] the executive, particularly in times of national emergency, can meet whatever situation endangers the national safety of the country. . . . I want to say that we had an emergency situation here. Somebody had to deal with it. [T]here would have been an indefinite stoppage of steel production. Are we to say, then, that there is no power in Government any place to meet as serious a situation as this, when it confronts the security of this nation? . . . [A]s of midnight on April 8th this seizure procedure appeared to be the only effective way to avoid a strike and to avoid a cessation for an indefinite period of production of steel necessary to national security and national defense.

Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." After granting many powers to the Congress, Article I goes on to provide that Congress may "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. 2 In these circumstances, [343 U.S. 579, 636] and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government [343 U.S. 579, 637] as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also the support of the many precedents and declarations which were made in relation, and must be confined, to this category. 5 [343 U.S. 579, 639]

Can it then be defended under flexible tests available to the second category? It seems clearly eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure. In cases where the purpose is to supply needs of the Government itself, two courses are provided: one, seizure of a plant which fails to comply with obligatory orders placed by the Government; 6 another, condemnation of facilities, including temporary use under the power of eminent domain. 7 The third is applicable where it is the general economy of the country that is to be protected rather than exclusive governmental interests. 8 None of these were invoked. In choosing a different and inconsistent way of his own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. [343 U.S. 579, 640]

This leaves the current seizure to be justified only by the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court's first review of such seizures occurs under circumstances which leave presidential power most vulnerable to attack and in the least favorable of possible constitutional postures.

I did not suppose, and I am not persuaded, that history leaves it open to question, at least in the courts, that the executive branch, like the Federal Government as a whole, possesses only delegated powers. The purpose of the Constitution was not only to grant power, but to keep it from getting out of hand. However, because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times. I have heretofore, and do now, give to the enumerated powers the scope and elasticity afforded by what seem to be reasonable, practical implications instead of the rigidity dictated by a doctrinaire textualism.