woiyo wrote:Funny, only one side is saying it is illegal.
That has yet to be proven absolutely.
As far as your overseas calls, unless you are talking to someone in the ME who is a known or suspected terrorist, what is there to worry about?
How many times do we have to rehash this same issue?
Here's a recap of what we have learned over the last 160+ pages of this thread:
Bush's domestic spying program is clearly illegal under the express provisions of the Foreign Intelligence Surveillance Act.
The federal statute clearly and unambiguously requires the government to obtain FISA court approval to conduct domestic electronic survellience of United States persons. The government must have probable cause to believe the target is an agent of a foreign power.
There are statutory exceptions.
Exception: In the case of exigent circumstances, the government may commence electronic surveillence of the target without FISA court approval so long as approval is obtained within 72 hours thereafter.
The president has not invoked this 72 hour exception. He is conducting domestic electronic surveillance of United States Persons with absolutely no FISA court oversight.
Exception: When war is declared, the government may conduct domestic electronic surveillance for fifteen days after the declaration without FISA court approval. In that fifteen day period, the President and Congress are expected to confer and to make whatever amendments to the law they deem necessary in furtherance of the war effort. The President and Congress did indeed confer and amendments to FISA were made through the Patriot Act. Congress passed those amendments; the President signed them into law.
The President is constitutionally mandated to faithfully execute the laws of the United States.
Accordingly, if we construe the AUMF to be the equivalent of a declaration of war in order to invoke the FISA exception, the passage of the AUMF gave the President only fifteen days thereafter to conduct electronic surveillance without FISA court approval. However, in violation of the express provisions of FISA, the government has been conducting domestic electronic surveillance of United States Persons without FISA court approval for more than FOUR YEARS.
There is NO DOUBT that the President's domestic spying program violates FISA and is therefore ILLEGAL.
The only way that the President can get around the illegality of his domestic spying program is if FISA is UNCONSTITUTIONAL. Unconstitutional laws are void and have no force or effect. However federal statutes are entitled to a presumption of constitutionality. Under the Youngstown test, Congress would have to be completely foreclosed from legislating on the subject matter. Accordingly, to rebut the presumption of constitutionality and to exclude Congress, the President would have to prove to our federal courts that Congress has no constitutional authority whatsoever to place any statutory check on the president's power to conduct domestic electronic surveillance of United States persons during a time of war. The president cannot make that showing because the Constitution expressly grants Congress the power to enact FISA.
