Ticomaya wrote:Thomas wrote: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 his
Commentaries . 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 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 foreign powers and their agents:
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.
In United States v. United States District Court (Keith), 407 U.S. 297 (
1972), the Supreme Court held that there was no national security exception to the warrant requirement of the Fourth Amendment. The Supreme Court outlined the evils of UNCHECKED executive power:
Quote:National security cases, moreover, often reflect a convergence of First and Fourth Amendment values not present in cases of "ordinary" crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. "Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure power," Marcus v. Search Warrant, 367 U.S. 717, 724 (1961).
History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs. The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. Senator Hart addressed this dilemma in the floor debate on 2511 (3):
"As I read it - and this is my fear - we are saying that the President, on his motion, could declare - name your favorite poison - draft dodgers, Black Muslims, the Ku Klux Klan, or civil rights activists to be a clear and present danger to the structure or existence of the Government." 15
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
Although the 1972 Keith decision did not address the SCOPE of the president’s surveillance power with respect to the activities of foreign powers, within or without this country, it is clear that the executive branch may not constitutionally subject the American people to UNCHECKED surveillance powers.
The Supreme Court considered the Attorney General's claim that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. With due regard to the warrant clause, the Supreme Court balanced the interests at stake: the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression.
The Court held that our Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch.
The government presented arguments that the President's compelling concerns for our national security required an exemption from the warrant requirement. The Court ruled that the circumstances did not justify an exemption:
Quote:Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.
The Court will indeed recognize the constitutional basis for the President's role to protect the nation from terrorism. But the Court will not allow the President to exercise that role in an UNCHECKED manner. The Court suggested that Congress may wish to consider protective standards for the government to gather intelligence information to protect our national security. The Court stated:
Quote:Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. . . .
It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 2518.
In 1978, six years AFTER the Court decided the Keith case, Congress enacted the Foreign Intelligence Surveillance Act (FISA). In accordance with FISA, the executive branch may conduct warrantless electronic surveillance of foreign powers and agents of foreign powers so long as the Attorney General certifies that it is unlikely that the surveillance will intercept the communications of a UNITED STATES person. However, if the target of the electronic surveillance is a UNITED STATES person, FISA requires the government to obtain a court order approving the surveillance. Accordingly, FISA is directed at DOMESTIC surveillance because, in our country, the security of the people against unreasonable government searches and seizures is guaranteed by the Fourth Amendment.
The probable cause standard is low. The government must set forth facts that justify the government's belief that the target is a foreign power or an agent of a foreign power. FISA is a carefully crafted CHECK on executive power to ensure the rights of UNITED STATES persons are safeguarded. It was designed to respond to the abuses of the Nixon administration and to thwart any future executive branch temptation to utilize official domestic surveillances under the guise of "national security" to oversee political dissent.
Ticomaya wrote: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).
Let's look at those cases:
United States v. Clay, 430 F.2d 165, 171 (5th Cir.
1970).
This case PREDATES United States v. United States District Court (Keith), 407 U.S. 297 (1972). Accordingly, your assertion that this case applies Keith is entirely without merit. This case also predates FISA (1978).
All the other cases PREDATE FISA. The facts and circumstances that gave rise to the Truong case also predated FISA. Although the Truong court recognized the president's power to conduct surveillance to obtain foreign intelligence information, the Truong court specifically acknowledged that President's intelligence information gathering power has limits and boundaries. The Truong court ruled that the President exceeded his power when the primary purpose of the electronic surveillance shifted from obtaining foreign intelligence information to obtaining evidence for a criminal prosecution. For the latter law enforcement purpose, the Truong court ruled that a warrant was required.
Ticomaya wrote:All those courts have held that the President has inherent authority to conduct warrantless searches to obtain foreign intelligence information. And of course
FISC Court of Review case, In re: Sealed Case No. 02-001:
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 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.
The FISA court of appeals notes that the president's authority has boundaries. Even Ticomaya has admitted that the President's constitutional authority to conduct domestic electronic surveillance has limits and boundaries:
Ticomaya wrote:Of course there are limits. The surveillance must be on foreign powers, or agents thereof, for foreign intelligence purposes.
FISA does not encroach upon the president's power. It specifically authorizes warrantless searches to acquire foreign intelligence information:
Quote:§ 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.
Again, FISA does not encroach upon the president's power, but it does ensure that the president doesn't exceed his power.
When the target of an electronic surveillance is a UNITED STATES person, the government must obtain FISA court approval. The government must set forth the facts and circumstances that justify the government's belief that the target is an agent of foreign power. This is the CHECK that Congress has placed on the president's authority to protect the people's right to be free of unreasonable searches and seizures--to protect the people from unchecked domestic spying. Inasmuch as Ticomaya admits that there are limits on the president's power, FISA is certainly a necessary and proper means for ensuring those limits are not exceeded.
The SUPREME COURT requires CHECKS on presidential powers. See Hamdi v. Rumsfeld:
Quote:The threshold question before us is whether the Executive has the authority to detain citizens who qualify as “enemy combatants.”
. . . Moreover, as critical as the Government’s interest may be in detaining those who actually pose an immediate threat to the national security of the United States during ongoing international conflict, history and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat. See Ex parte Milligan, 4 Wall., at 125 (“[The Founders] knew–the history of the world told them–the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen”). . . .
. . . Striking the proper constitutional balance here is of great importance to the Nation during this period of ongoing combat. But it is equally vital that our calculus not give short shrift to the values that this country holds dear or to the privilege that is American citizenship. It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad. See Kennedy v. Mendoza&nbhyph;Martinez, 372 U.S. 144, 164—165 (1963) (“The imperative necessity for safeguarding these rights to procedural due process under the gravest of emergencies has existed throughout our constitutional history, for it is then, under the pressing exigencies of crisis, that there is the greatest temptation to dispense with guarantees which, it is feared, will inhibit government action”); see also United States v. Robel, 389 U.S. 258, 264 (1967) (“It would indeed be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties … which makes the defense of the Nation worthwhile”).
. . . We therefore hold that a citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker.
. . . In so holding, we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government.
We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens. Youngstown Sheet & Tube, 343 U.S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U.S. 361, 380 (1989) (it was “the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty”); Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398, 426 (1934) (The war power “is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative effort to preserve the nation. But even the war power does not remove constitutional limitations safeguarding essential liberties”).
Likewise, we have made clear that, unless Congress acts to suspend it, the Great Writ of habeas corpus allows the Judicial Branch to play a necessary role in maintaining this delicate balance of governance, serving as an important judicial check on the Executive’s discretion in the realm of detentions. See St. Cyr, 533 U.S., at 301 (“At its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest”). Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process. . . .
Bush certainly argued that he had inherent power under Article II and statutory authority under the AUMF to detain enemy combatants for the duration of the hostilities. We can take it for granted the president has that power, but that does not mean that he can exercise that power at his pleasure. Without checks or balances, the president could designate anyone he chose to be an enemy combatant and make that person disappear. The Court noted that history and common sense teach us that
an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.
If Bush decided to ignore the holding in Hamdi and instituted a secret detention program in order to avoid judicial oversight of his enemy combatant designations--could he claim "inherent constitutional authority" to do so? Absolutely not! The same applies to his secret domestic spying program that he instituted in order to avoid FISA.
Our country's recent history under the Nixon administration teaches us that an unchecked system of electronic surveillance carries the potential to become a means for oppression and abuse of United States persons who do not pose a threat to our national security. Bush does not have unlimited power to target anyone he chooses, designate them as an agent of an foreign power, and to conduct electronic surveillance of that person without judicial oversight. Due to the top secret nature of intelligence gathering for national security purposes, the only CHECK on the president's potential abuse of his power is FISA.
FISA does not encroach upon the president's power; it simply places a reasonable check on that power to ensure that it is not abused. It is a federal felony for any person to intentionally engage electronic surveillance under color of law except as authorized by statute:
Quote:§ 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.
Bush's authority has limits and Congress may establish checks and balances to ensure that he stays within those limits. Bush's UNCHECKED domestic spying on Americans on American soil is not authorized by statute; it is specifically prohibited by FISA. Bush's spying on Americans without FISA court oversight is unconstitutional and criminal.
In 1985, the Supreme Court noted the abuse of authority by high level executive branch officers:
Quote:. . . despite our recognition of the importance of those activities to the safety of our Nation and its democratic system of government, we cannot accept the notion that restraints are completely unnecessary. As the Court observed in Keith, the label of "national security" may cover a multitude of sins:
"National security cases . . . often reflect a convergence of First and Fourth Amendment values not present in cases of `ordinary' crime. Though the investigative duty of the executive may be stronger in such cases, so also is there greater jeopardy to constitutionally protected speech. . . . History abundantly documents the tendency of Government - however, benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. . . . The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect `domestic security.' Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent." 407 U.S., at 313-314.
The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity.
We emphasize that the denial of absolute immunity will not leave the Attorney General at the mercy of litigants with frivolous and vexatious complaints. Under the standard of qualified immunity articulated in Harlow v. Fitzgerald, the Attorney General will be entitled to immunity so long as his actions do not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S., at 818. This standard will not allow the Attorney General to carry out his national security functions wholly free from concern for his personal liability; he may on occasion have to pause to consider whether a proposed course of action can be squared with the Constitution and laws of the United States. But this is precisely the point of the Harlow standard: "Where an official could be expected to know that his conduct would violate statutory or constitutional rights, he should be made to hesitate . . . ." Id., at 819 (emphasis added). This is as true in matters of national security as in other fields of governmental action. We do not believe that the security of the Republic will be threatened if its Attorney General is given incentives to abide by clearly established law.
MITCHELL v. FORSYTH, 472 U.S. 511 (1985)
http://laws.findlaw.com/us/472/511.html
Under our constitutional system, official domestic surveillance of American citizens threatens our core values and must therefore have judicial approval. The President does not have authority to exercise unchecked power when history has taught us that unchecked powers are a real and substantial threat to the people's rights.
What incentive does Bush have to comply with the law when he can openly violate a congressional enactment that checks his power and get away with it? NONE. Bush will simply grab more power, the executive branch will become a de facto dictatorship, and the other two branches of government might as well fade into nonexistence. To maintain our constitutional values, President Bush must be impeached.
