America... Spying on Americans

Cycloptichorn wrote:

I note that all arguments concerning the legality of the NSA spying program seem to have ceased...

Cycloptichorn

Is that an observation you feel relates to something in particular?

Speaking only for myself, I've decided to get some actual work done today.

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Debra_Law wrote:

McGentrix wrote:
Having one person on the line that has relations with terrorists or terrorist organization is probable cause.

It that's truly the case, then Bush would have no problem obtaining FISA court approval to conduct electronic surveillance.

This is what Albert Gonzales had to say on Tuesday concerning that:

Quote:

Some have pointed to the provision in FISA that allows for so-called "emergency authorizations" of surveillance for 72 hours without a court order. There's a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.

Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.

A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.

We all agree that there should be appropriate checks and balances on our branches of government. The FISA process makes perfect sense in almost all cases of foreign intelligence monitoring in the United States. Although technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the War on Terror, and one that we are using to its fullest and will continue to use against al Qaeda and other foreign threats. But as the President has explained, the terrorist surveillance program operated by the NSA requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack. And we cannot afford to fail.

Actually, he had a lot more to say. Transcript of his entire speech can be found .... HERE.

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Not sure if this has been posted here before or not. It touches on many of the legal issues Deb and Tico have been discussing. In one 44 page document that isn't puncuated with "did not, did too" arguments

Presidential Authority to Conduct Warrantless Electronic
Surveillance to Gather Foreign Intelligence Information

The document ends

Quote:

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of "electronic surveillance" within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by "disabling Congress from acting upon the subject."141 While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance,142 and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration's legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.

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Ticomaya wrote:

When every President since Roosevelt conducted warrantless searches for purposes of foreign intelligence prior to FISA, did they do so pursuant to authority? If so, what authority?

Both the president and the Congress have authority to protect our national security at a time of war and from threats of foreign powers, but that authority may only be exercised pursuant to our constitutional framework. Although the president is explicitly designated as the Commander and Chief of the armed forces to ensure that that the nation's military power is subject to civilian rather than military rule, Congress is vested with exclusive authority to make the laws under which the president may exercise his power as the Commander and Chief.

As set forth by the justices in the Youngstown case, any reference to what past presidents may have done does not divest CONGRESS of its exclusive constitutional power pursuant to Article I, Section 8, to regulate the president's exercise of executive branch powers:

Quote:

To 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.

Even the Federal Intelligence Surveillance Court of Review opinion that you love to cite set forth that the president's power to conduct electronic surveillance to gather foreign intelligence information has BOUNDARIES. After the widespread abuses of unchecked power by the Nixon administration became known, Congress found it necessary and proper to make rules for the executive branch to follow when United States persons inside the United States are targeted by the executive branch for intelligence gathering purposes.

FISA does not prohibit the president from conducting electronic surveillance of United States persons inside the United States for the purpose of gathering foreign intelligence information. FISA merely places a minimal independent judicial check on that power to prevent the executive branch from abusing that power and targeting United States persons for surveillance in violation of their constitutionally protected rights. Congress enacted FISA in accordance with Congress's express constitutional authority to do so as set forth in Article I, Section 8 (quoted above).

See Article VI of the Constitution:

Quote:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. . . .

FISA is the Supreme Law of the Land. Accordingly, the president is constitutionally mandated to faithfully execute the law in accordance with the will of Congress. See Article II, Section 3, of the Constitution:

Quote:

(The president) shall from time to time give to the Congress information of the state of the union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States.

The president's power is limited to recommending to CONGRESS whatever measures he judges necessary and expedient to amend FISA. In fact, the president did recommend several amendments which were passed and signed into law by the Patriot Act. The president is constitutionally mandated to faithfully execute FISA (as amended by the Patriot Act) in accordance with the will of Congress. The president has no constitutional power to circumvent FISA via a secret measures instituted by a classified presidential executive order. In fact, it has been brought to our attention that the Bush Administration specifically rejected DeWine's proposed amendment to water down FISA's "probable cause" requirement claiming that the lesser standard most likely would not pass constitutional muster.

Additionally, another poster made another significant point. Even though the President has EXPRESS constitutional authority to make recess appointments, CONGRESS still has authority to make all laws which shall be necessary and proper for carrying into execution the president's express power to make recess appointments. Here's an example of Congress regulating by law the president's express power to make recess appointments:

Quote:

§ 5503. Recess appointments

(a) Payment for services may not be made from the Treasury of the United States to an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate. This subsection does not apply—

(1) if the vacancy arose within 30 days before the end of the session of the Senate;

(2) if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent; or

(3) if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.

(b) A nomination to fill a vacancy referred to by paragraph (1), (2), or (3) of subsection (a) of this section shall be submitted to the Senate not later than 40 days after the beginning of the next session of the Senate.

Source: 5 U.S.C. § 5503.

Even if we assume--or take it for granted--that the president has "inherent" power to conduct electronic survellience of United States persons within the United States for the significant purpose of gathering foreign intelligence information, that power is subject to the limitations placed on the government by the Fourth Amendment and that power is subject to regulation by Congress through the enactment of laws.

On the most part, what Congress believes to be the necessary and proper means under which the government exercises its limited constitutional powers is a political question within the discretion of CONGRESS. See McCulloch v. Maryland:

Quote:

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. . . .

Should congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects intrusted to the government, to undertake here to inquire into the decree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.

http://www.justia.us/us/17/316/case.html

It is within Congress's power to determine the means under which the executive branch may conduct electronic surveillance of United States persons with the United States for the purpose of gathering intelligence information. Just as Congress established a national bank as a means to execute government powers, Congress established a special foreign intelligence surveillance court as a means protect individual liberty interests through an independent judicial check when the government targets a United States person within the United States for electronic surveillance. So long as the procedures established by FISA are sufficient to protect the target's rights secured by the Fourth Amendment, FISA is constitutional.

The means by which the president may exercise governmental powers are subject to regulation by Congress. The president may not employ means (e.g., secret executive orders) that subvert or circumvent the will of Congress as set forth in the Foreign Intelligence Surveillance Act.

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FreeDuck wrote:

As to Tico's argument that the Congress cannot pass laws that regulate executive power, I would reference Article I, section 8 of the US Constitution where Congress is given the power "to 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." Once FISA was passed and signed into law by the president, it became law. The president is encroaching on the authority of Congress to make laws by enacting an executive order that is counter to it.

If Congress tried to pass a law restricting the president from making recess appointments, the president would veto it, and if that were overridden, would successfully defeat it in court. However, Congress has the power to pass laws defining how to execute those powers, as it did with FISA.

EXACTLY. Thank you, FreeDuck, for making that significant point.

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Ticomaya wrote:

Debra_Law wrote:
McGentrix wrote:
Having one person on the line that has relations with terrorists or terrorist organization is probable cause.

It that's truly the case, then Bush would have no problem obtaining FISA court approval to conduct electronic surveillance.

This is what Albert Gonzales had to say on Tuesday concerning that:

Quote:
Some have pointed to the provision in FISA that allows for so-called “emergency authorizations” of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.

FISA allows the Attorney General to authorize emergency surveillance pursuant to 50 U.S.C. 1805 (f):

Quote:

(f) Emergency orders

Notwithstanding any other provision of this subchapter, when the Attorney General reasonably determines that—

(1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and

(2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists;

he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.

The law does not require the AG to KNOW with any certainty that a FISA Court will approve the subsequent application. In an emergency, the law merely requires the AG to reasonably determine that the target of the electronic surveillance is a foreign power or an agent of a foreign power.

After the story broke, the NY Times told us this:

Quote:

The concerns within the Justice Department appear to have led, at least in part, to the decision to suspend and revamp the program, officials said. The Justice Department then oversaw a secret audit of the surveillance program. The audit examined a selection of cases to see how the security agency was running the program. Among other things, it looked at how agency officials went about determining that they had probable cause to believe that people in the United States, including American citizens, had sufficient ties to Al Qaeda to justify eavesdropping on their phone calls and e-mail messages without a court warrant. That review is not known to have found any instances of abuses.

The president also stated the following:

Quote:

Q Thank you, Mr. President. If you believe that present law needs to be faster, more agile concerning the surveillance of conversations from someone in the United States to someone outside the country --

THE PRESIDENT: Right.

Q -- why, in the four years since 9/11, has your administration not sought to get changes in the law instead of bypassing it, as some of your critics have said?

THE PRESIDENT: I appreciate that. First, I want to make clear to the people listening that this program is limited in nature to those that are known al Qaeda ties and/or affiliates. That's important. So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa. So in other words, this is not a -- if you're calling from Houston to L.A., that call is not monitored. And if there was ever any need to monitor, there would be a process to do that.

http://releases.usnewswire.com/GetRelease.asp?id=58400

The President claims that he is targeting United States persons with KNOWN al Qaeda ties and/or affiliates. If that is true, what's the problem with informing the FISA court about these KNOWN ties? Obviously, a reasonable determination is allegedly being made BEFORE the surveillance begins that legally sufficient justification exists to believe that United States citizens / persons have sufficient ties to Al Qaeda to warrant the eavesdropping.

Unless the government is LYING again, and unless the government is conducting indiscriminate electronic surveillance without making any reasonable or supportable determinations in advance of the surveillance concerning the target's ties to international terrorism, the emergency provisions of FISA do not constitute any undue burden upon the government.

If the government requires MORE TIME under the emergency provisions of FISA to prepare its paperwork, the government should have informed Congress of its need to expand the 72 hour period and asked Congress to change the law. If the requirements of the law are too burdensome for the government to comply with, the option is not to ignore the law--but rather to recommend measures to Congress to improve the law.

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Debra_Law wrote:

FreeDuck wrote:

As to Tico's argument that the Congress cannot pass laws that regulate executive power, I would reference Article I, section 8 of the US Constitution where Congress is given the power "to 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." Once FISA was passed and signed into law by the president, it became law. The president is encroaching on the authority of Congress to make laws by enacting an executive order that is counter to it.

If Congress tried to pass a law restricting the president from making recess appointments, the president would veto it, and if that were overridden, would successfully defeat it in court. However, Congress has the power to pass laws defining how to execute those powers, as it did with FISA.

EXACTLY. Thank you, FreeDuck, for making that significant point.

What "significant point" was made? What breadth of authority are you claiming is given the Legislature by the "necessary and proper" clause?

Maybe I'd understand the point better if you or FD would point to the particular "foregoing powers" in Article I Section 8 you believe Congress was "carrying into execution" that allows it to "regulate executive power," and particularly this one?

Where does Article I enumerate foreign intelligence collection as one of Congress' powers? It appears you want to read the "necessary and proper" clause to effectively neuter the Executive's CIC powers, and I don't think that's what the Constitution says.

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Ticomaya wrote:

What breadth of authority are you claiming is given the Legislature by the "necessary and proper" clause?

Maybe I'd understand the point better if you or FD would point to the particular "foregoing powers" in Article I Section 8 you believe Congress was "carrying into execution" that allows it to "regulate executive power," and particularly this one?

Where does Article I enumerate foreign intelligence collection as one of Congress' powers? It appears you want to read the "necessary and proper" clause to effectively neuter the Executive's CIC powers, and I don't think that's what the Constitution says.

I already addressed this matter in my previous post. Although I posted the entire clause and highlighted the relevant portion of the clause, you didn't read it. Congress shall have the power:

To 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 necessary and proper clause is not limited to Congress's power to enact laws to carry into execution its own powers enumerated in Article I. Congress has explicit constitutional authority to make laws to carry into execution ALL powers vested by the Constitution in the GOVERNMENT or any department of the GOVERNMENT or any officer of the GOVERNMENT. This includes the power to make laws to carry into execution all powers vested by the Constitution in the executive branch as a department of our government and the president as an officer of the government.

If we assume that the government has power to conduct domestic electronic surveillance of United States persons to gather intelligence information, then Congress has EXPLICIT constitutional authority to establish the means by law under which the government (which includes the executive branch) may conduct electronic surveillence of United States persons within this country. So long as the means are consistent with the limitations placed on the government by the Fourth Amendment, the law is constitutional.

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Debra_Law wrote:

Ticomaya wrote:
What breadth of authority are you claiming is given the Legislature by the "necessary and proper" clause?

Maybe I'd understand the point better if you or FD would point to the particular "foregoing powers" in Article I Section 8 you believe Congress was "carrying into execution" that allows it to "regulate executive power," and particularly this one?

Where does Article I enumerate foreign intelligence collection as one of Congress' powers? It appears you want to read the "necessary and proper" clause to effectively neuter the Executive's CIC powers, and I don't think that's what the Constitution says.

I already addressed this matter in my previous post. Although I posted the entire clause and highlighted the relevant portion of the clause, you didn't read it. Congress shall have the power:

To 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 necessary and proper clause is not limited to Congress's power to enact laws to carry into execution its own powers enumerated in Article I. Congress has explicit constitutional authority to make laws to carry into execution ALL powers vested by the Constitution in the GOVERNMENT or any department of the GOVERNMENT or any officer of the GOVERNMENT. This includes the power to make laws to carry into execution all powers vested by the Constitution in the executive branch as a department of our government and the president as an officer of the government.

If we assume that the government has power to conduct domestic electronic surveillance of United States persons to gather intelligence information, then Congress has EXPLICIT constitutional authority to establish the means by law under which the government (which includes the executive branch) may conduct electronic surveillence of United States persons within this country. So long as the means are consistent with the limitations placed on the government by the Fourth Amendment, the law is constitutional.

I don't see why you reach this conclusion. After all, we can agree the government has power to prosecute wars. Do you think Congress has the ability to manage how the war is conducted? Sure it can declare war, it can fund the military, and it can enact laws to regulate the military forces of the US ... but it cannot command the military. That is the president's power under Article II as CIC. Military tactics are not controlled by Congress, and that includes foreign intelligence gathering to support the military forces.

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The argument that Congress is interfering in CIC powers is pretty weak.

The court dealt with that in Youngstown

Quote:

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. ,' whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command.

Congress can make regulations for the military. The president is not free to ignore those regulations.

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parados wrote:

The argument that Congress is interfering in CIC powers is pretty weak.

The court dealt with that in Youngstown

Quote:
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. ,' whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command.

Congress can make regulations for the military. The president is not free to ignore those regulations.

Youngstown did not deal with warrantless searches for purposes of gathering foreign intelligence for national defense. Every appellate court that has done so has upheld the authority of the President in that regard.

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Political opposites aligned against Bush wiretaps

http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2006/01/26/MNG24GTB8O1.DTL

Quote:

Grover Norquist is one of the most influential conservative Republicans in Washington.

Quote:

"My view on the terrorists is that we should find all of them and kill them," said Norquist. "But we should also protect our civil liberties, which the terrorists are trying to destroy."

Quote:

But, in fact, a number of prominent Republicans, including Sen. John McCain of Arizona, have criticized Bush and the wiretapping without court warrants as a violation of the law and basic civil liberties. So have other well-known conservatives, including former Rep. Bob Barr of Georgia. Bruce Fein, a lawyer who worked in the Justice Department under President Ronald Reagan, wrote in a commentary in the Washington Times last week that Bush should face "possible impeachment" if the practice is not stopped.

At least not ALL Republicans are so stupid as to want to throw away our privacy and freedoms!! It's too bad the cowards are always so quick to find reason to flush our civil liberties.

Anon

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Only while there wasn't a law regulating it.

The little problem with your argument is once a law was created the law became the controlling factor. No courts have ruled that Congress has no power to regulate foreign intelligence gathering. But courts have ruled that the President doesn't have unlimited power as CIC. Congress has the power to regulate using its power to make rules for government and regulation of land and naval forces. Once Congress does regulate then we have to look at the balance between the 2 branches.

I don't see any ruling that supports your argument that foreign intelligence surveillence is not under Congress' powers.

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UNITED STATES v. UNITED STATES DISTRICT COURT, 407 U.S. 297 (1972)

The court hints quite strongly that Congress does have the power to set rules how surveillence can be conducted

Quote:

Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment [407 U.S. 297, 323] 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. As the Court said in Camara v. Municipal Court, 387 U.S. 523, 534 -535 (1967):

"In cases in which the Fourth Amendment requires that a warrant to search be obtained, `probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. . . . In determining whether a particular inspection is reasonable - and thus in determining whether there is probable cause to issue a warrant for that inspection - the need for the inspection must be weighed in terms of these reasonable goals of code enforcement."

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.

It certainly appears that Congress followed the court's suggestions in writing FISA and setting up the FISA court.

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Debra_Law wrote:

FreeDuck wrote:

As to Tico's argument that the Congress cannot pass laws that regulate executive power, I would reference Article I, section 8 of the US Constitution where Congress is given the power "to 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." Once FISA was passed and signed into law by the president, it became law. The president is encroaching on the authority of Congress to make laws by enacting an executive order that is counter to it.

If Congress tried to pass a law restricting the president from making recess appointments, the president would veto it, and if that were overridden, would successfully defeat it in court. However, Congress has the power to pass laws defining how to execute those powers, as it did with FISA.

EXACTLY. Thank you, FreeDuck, for making that significant point.

This interpretation flies in the face of the checks and balances principle that underlies all of your arguments.

If Congress has the power to make laws which define and restrict any and all powers vested in government by the Constitution, then it has the ultimate power, and what check is there on Congress?

To the extent that powers and authorities are granted by the Constitution to any one of the three branches of government, the means to amend, limit, or control such powers is specifically prescribed by the Constitution. Congress cannot amend the Constitution.

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Finn,
The check on congress is the courts and the constitution. Congress can only pass laws as long as the laws are constitutional. Freeduck stated that when she pointed out the president would win the battle on a law banning recess appointments in the court.

In this case the Congress has the EXPRESS ability to make regulation regarding the military. The President is not given the power to reject those regulations. Even in waging war, the President is under restrictions from laws and treaties. As Tico likes to point out so many times, the President is free to ignore those or any other laws. But in so doing he puts himself above the law and at a very real risk of impeachment.

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Ticomaya wrote:

parados wrote:
The argument that Congress is interfering in CIC powers is pretty weak.

The court dealt with that in Youngstown

Quote:
There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants. He has no monopoly of ‘war powers,’ whatever they are. While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command. It is also empowered to make rules for the ‘Government and Regulation of land and naval Forces,’ by which it may to some unknown extent impinge upon even command functions

Congress can make regulations for the military. The president is not free to ignore those regulations.

Youngstown did not deal with warrantless searches for purposes of gathering foreign intelligence for national defense. Every appellate court that has done so has upheld the authority of the President in that regard.

Your attempt to distinquish the underlying facts in Youngstown from President Bush's domestic spying program is without merit. Youngstown dealt with the president's claim of inherent powers to issue an executive order that conflicted with a congressional enactment on the same subject matter. The Court rejected the argument that the president had inherent authority pursuant to his constitutional role as chief executive officer or as commander in chief to displace Congress. Congress has exclusive constitutional authority to make rules for government and to make laws for carrying into execution all powers vested in the government.

Similarly, Bush claims inherent powers to issue an executive order that conflicts with a congressional enactment on the same subject matter. Even if the executive branch has inherent power to conduct electronic surveillance for intelligence gathering purposes, there are limits and boundaries to that power. Congress has exlusive constitutional authority to make laws setting forth the means under which the executive branch may execute its surveillance powers inside this country and targeted upon our people.

It has been noted several times and just again by Parados that the Supreme Court (in the 1972 Keith case) recommended that Congress protect the rights of our citizens by establishing special probable cause standards for a special court to issue warrants to conduct electronic surveillence for national security and intelligence gathering purposes. Congress did exactly what the Court recommended when it enacted FISA.

There are no constraints on the president's power to conduct electronic surveillance for gathering foreign intelligence information when the president directs his surveillance activity outside this country. However, if the president targets a United States citizen or resident alien inside this country, a minimal check is placed on that power by requiring a neutral court to determine whether probable cause exists to believe the target is an agent of a foreign power. The president may not circumvent that statutory check on government power via an executive order.

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Finn asked

Quote:

If Congress has the power to make laws which define and restrict any and all powers vested in government by the Constitution, then it has the ultimate power, and what check is there on Congress?

The Supreme Court. That was the answer in your high school social studies class. These days, however, some would argue that there is nothing to stop a Republican Congress from restricting the right of privacy with the total (or at least 5 to 4) acquiescence of the Court, especially after next Tuesday's vote on Scalito, uh Scalado, uh Alito.

Again

Quote:

To the extent that powers and authorities are granted by the Constitution to any one of the three branches of government, the means to amend, limit, or control such powers is specifically prescribed by the Constitution. Congress cannot amend the Constitution.

Were you absent that day? The Amendments to the Constitution must arise in the Congress and be ratified by two/thirds of the Legislatures of the States. The People, thank goodness, do not get to vote directly on Constitutional Amendments. They are after all the ones who elected this current bunch. Twice.

Joe(Please pass your test papers to the front)Nation

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Congress Shut Down Surveillance Program in 2003
Congress Shut Down Surveillance Program in 2003
By Jason Leopold
t r u t h o u t | Report
Thursday 26 January 2006

Back in 2002, with the country still reeling from the 9/11 attacks, fear that terrorists would again wreak havoc in the US led the White House to develop a sophisticated system aimed at identifying terrorists associated with al-Qaeda who lived in the United States undetected, and stopping them before they could strike again.

To take advantage of this system, the Bush administration unveiled a new intelligence program that granted traditional law enforcement agencies as well as the FBI and the CIA the authority to conduct what was then called "suspicionless surveillance" of American citizens.

This "suspicionless surveillance" program was developed by the Pentagon's controversial Total Information Awareness department, led by Admiral John Poindexter, the former national security adviser who secretly sold weapons to Middle Eastern terrorists in 1980s during the Iran-Contra affair and was convicted of a felony for lying to Congress and destroying evidence. The convictions were later overturned on appeal.

The program was somewhat different from the warrantless wiretaps President Bush secretly authorized the National Security Agency to conduct in 2002, giving them permission to eavesdrop on phone calls and monitor emails of known al-Qaeda suspects and terrorist sympathizers inside the United States. "Suspicionless surveillance" - unveiled in a Pentagon press release, also in 2002 - was broader in scope: It gave law enforcement the authority to mine commercial and other private data on American citizens, listening in on phone calls, monitoring emails, inspecting credit-card and bank transactions of thousands of individuals on the off-chance that one might be a terrorist - and all without any judicial oversight.

While the programs were different in scope, the goals were essentially the same: to quickly unmask terrorists operating inside the United States. But protests by civil liberty and privacy groups, as well as apprehension by Republican and Democratic lawmakers over what amounted to domestic spying, led Congress to shut down the surveillance program in 2003.

It now appears that shortly after the federal government told the White House it was trampling on individual privacy rights with its "suspicionless surveillance," several current and former NSA officials said, President Bush signed an executive order authorizing the National Security Agency to secretly eavesdrop on American citizens' email and international phone calls, thereby continuing, in effect, a domestic spying program that Congress had objected to.

Given the fact that "suspicionless surveillance" was under way in 2002, it's hard to comprehend why the New York Times, the publication credited with first exposing Bush's secret domestic spying program last month, felt the need to hold the story for a year.

The Times's top editors said they held the story at the request of the Bush administration on grounds that it would threaten national security. President Bush criticized the Times when the story broke in December, saying that terrorists are now aware they are under surveillance. But that sort of criticism by the president doesn't make much sense considering the very public domestic surveillance program that took place in 2002 - albeit under a different name - which would also have alerted suspected terrorists that they were being watched.

To some of the current and former NSA officials it appears that the president's criticism of Times's report has more to do with the fact that he did not reveal to Congress that he authorized such a plan, especially since Congress shut down the virtually identical "suspicionless surveillance" program four years ago.

Back in the summer of 2002, a public outcry over the revelation that JetBlue Airways turned over the names and addresses of 1.5 million passengers to the Pentagon so the agency could create a database about Americans' travel patterns, and allowed intelligence officials to monitor credit card transactions, forced Congress to withhold tens of millions of dollars in funding for the project.

Civil liberties groups, including the American Civil Liberties Union, came out swinging, saying the Bush administration was violating the privacy rights of average American citizens. Like the current domestic surveillance program under way, administration officials insisted at the time that their goal was to carry out targeted surveillance.

In a resignation letter in September 2003, Admiral Poindexter, the originator of the Total Information Awareness program, said his goal in monitoring individuals was to identify "patterns of transactions that are indicative of terrorist planning and preparations."

"We never contemplated spying and saving data on Americans," Poindexter wrote in his resignation letter.

But that's exactly what happened during the early stages of the program. The administration acknowledged that its aggressive campaign to unmask terrorists living in the US would be hindered if it were required to avoid spying on average American citizens.

Poindexter's plan, which barely got off the ground before Congress stepped in and dismantled the project, proposed to use state-of-the-art computer systems at the Army's Intelligence and Security Command, headquartered at Fort Belvoir, Virginia, to secretly monitor emails, credit-card transactions, phone records and bank statements of hundreds of thousands of American citizens on the chance that they might be associated with, or sympathetic to, terrorists.

Poindexter came up with the idea after 9/11 and discussed it over lunch with Defense Secretary Donald H. Rumsfeld, news reports said at the time.

Despite assurances that the federal government would not misuse the program, the JetBlue revelation proved that the administration was willing to sacrifice individual privacy rights in the name of national security. JetBlue officials said the airline was pressured by the Pentagon to hand over its private customer data to a Pentagon contractor named Torch Concepts. The contractor then bought demographic information on nearly half of the passengers from Acxicom, a marketing company. Torch then put together a study and posted it on the Internet.

In its report, Torch said that the government would have to monitor an unknown number of passengers to "find a needle in a haystack without knowing what the needle looks like."

At least one lawmaker raised concerns at the time that implementing such a program could be illegal.

Sen. Carl Levin, D-Michigan, told Rumsfeld during a public hearing in 2003 that the Total Information Awareness program "not only raises serious privacy concerns [but] might also be illegal and possibly unconstitutional," an issue Congress is expected to debate at next month's hearings on the secret NSA surveillance program that Bush authorized.
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Jason Leopold spent two years covering California's electricity crisis as Los Angeles bureau chief of Dow Jones Newswires. Jason has spent the last year cultivating sources close to the CIA leak investigation, and is a regular contributer to t r u t h o u t.

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Madness Of King George

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We should not allow ourselves to fall into Rove’s trap and let this become a partisan squabble over national security. If we do, the President and his cronies on Capitol Hill are going to win. This is not fundamentally a debate about wiretapping or national security. It is about whether Presidents must obey the law, one of the bedrock principles of a free nation. As Elizabeth Holtzman recently observed in these pages, “A President, any President, who maintains that he is above the law – and repeatedly violates the law – thereby commits high crimes and misdemeanors.” Bush purposely violated the Foreign Intelligence Surveillance Act, disregarding clear and specific statutory language and the Constitution. If he is not called to account for this grave illegality, the democratic standards to which this and future Presidents are held will have been dramatically lowered, and essential avenues for defending our liberties will have been blocked in precisely the manner that Ben Franklin, James Madison and the other wise Founders feared.

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America... Spying on Americans

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