constitutional amendment to limit war powers

It would appear that according to John Schmidt, who served as associate attorney general UNDER PRESIDENT CLINTON FROM 1994 TO 1997 that the president had the legal authority to OK taps.

I present this article as an argument for that position. I know that there are persons who do not agree. That means that the question will have to go to the courts.

But, here is the entire argument:




Clinton Associate Attorney General: President Bush had Legal Authority to OK Taps
John Schmidt, who served in the Clinton Justice Department from 1994 to 1997, wrote the following in the Chicago Tribune:

President had legal authority to OK taps
Chicago Tribune
By John Schmidt
Published December 21, 2005

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

The administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks. The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action.

But even if the NSA activity is "electronic surveillance" and the Sept. 11 resolution is not "statutory authorization" within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, "encroach upon the president's constitutional power."

FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.

Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

It is NOT his right as Commander in Chief. Commander in Chief, means that he is the Commander in charge of the Army and the Navy! That's ALL!
He is NOT the King! This is NOT a Monarchy, it is a Republic! Read! I am not a Republican OR democrat and do NOT support this pResident!! I do respect his office, no matter WHO is sitting in the Chair. If Mr. Bush walked into the room, I'd treat him with dignity and respect, although I don't support or agree with his views. I suppoert our Troops, but not the war, that they are giving their lives for! Iraq didn't attack us it was the Arabs from the United Arab Emirates, who he has a cozy in-bed relationship with!

Whether or not you are a Republican is not, of course, germane, when you post utter drivel about the constitution. The second paragraph of Section Nine, Article One of the United States Constitution reads, in its entirety:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. (emphasis added)

Said paragraph both guarantees the right, and provides for its suspension. One can read Lincoln's proclamation suspending the right of habeas corpus here, in which he specifies insurrection, and specifies the exact circumstances related to insurrection and military authority under which the suspension were in effect. One might argue that he was not justified, but as no case was successfully prosecuted against his proclamation in the Federal court system, it is a false statement to state or imply that Lincoln illegally suspended writs of habeas corpus.

Your gobbledygook about Jackson is sufficiently vague as to admit of no research or refutation, but perhaps you will regale us with some details.

I realize that this may be difficult for some to read but it does present a good case.I present this article as an argument for that position. I know that there are persons who do not agree. That means that the question will have to go to the courts.

But, here is the entire argument:




Clinton Associate Attorney General: President Bush had Legal Authority to OK Taps
John Schmidt, who served in the Clinton Justice Department from 1994 to 1997, wrote the following in the Chicago Tribune:

President had legal authority to OK taps
Chicago Tribune
By John Schmidt
Published December 21, 2005

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "the Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

The administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks. The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action.

But even if the NSA activity is "electronic surveillance" and the Sept. 11 resolution is not "statutory authorization" within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, "encroach upon the president's constitutional power."

FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.

Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

mele, that spamming is not kosher but it is your same old MO.

A constitutional amendment to limit war powers IS NOT NEEDED, unless the President pre-emptively strikes at another country as Bill Clinton did in Dece. 1998 when he ordered a missle attack against Iraq.

A constitutional amendment to limit war powers IS NOT NEEDED. The Congress of the United States can limit the war powers of the President by REFUSING to grant him authority to send troops to fight overseas.

Indeed, all the Congress of the United States had to do was to refuse to give the President authority to attack Iraq.

But as Bob Woodward recounts in his-"Bush at War" on P. 351

quote

On October 10th and 11th the House and Senate overwhelmingly voted to grant the president FULL AUTHORITY TO ATTACK IRAQ UNILATERALLY. The vote in the House was 296 to 133, and in the Senate 77 to 23. THE CONGRESS GAVE BUSH THE FULL GO AHEAD TO USE THE MILITARY AS HE "DETERMINES TO BE NECESSARY AND APPROPRIATE" TO DEFEND AGAINST THE THREAT OF IRAQ.

end of quote.


It seems clear that even if any future presidents did not have any authority to declare war, they would have to go through the same process President Bush elected, in order to get AUTHORIZATION from the Congress.


I do not understand either the necessity or the rational for a constitutional amendment unless one is speaking of a Clinton like Pre-emptive attack like the one that took place in December 1998.

all clinton, all the time. must miss the good ol' days...

Bob Woodward writes in all caps?

If you're going to quote someone, mele, please do it properly - as written.

Don't Tread. I do believe that if you read Presidential Histories, you will discover that the writers( even the ones who write Pulitzer Prize winning Biographies like David McCullough in his great "Truman") constantly reference past presidents because it is necessary to view the present in context.

I think that is a common view but if you have evidence that it is not, please be so good to enlighten me!

and yet the only one you reference is clinton. seems a little narrow minded to me considering that the islamic fundi threat is several decades old.

Clinton, Ah yes, he was the president who directly preceded Bush, is he not?

My biography of FDR is filled with references to HOOVER and the HOOVER administration.

I wonder why???

This thread is getting cluttered with kitty corpses. Did Ital-massa-mort-gato get banned over at Seattlebuzz again?

dunno, set. but i'm done with him. ya can have him ya want.

Even when I am at my most polite?? You sadden me, Dont Tread but I am learning that some people do not really want to discuss, indeed cannot discuss when their adversary develops a better argument than they do.

I have posted on various threads for a few years now but I have never indicated that I could not interact with another poster.

I take pride in my ability to match arguments with you or anyone!!!

one last attempt..

dude, it's not your point of view that puts me off, it's your need to be sarcastic and throw **** all over the place.

some of the most conservative people on a2k rank as favorites with me. somehow, they manage to discuss the same topics with me without acting childish and petulant.

conversely, there are some liberals that i may have a topical agreement with that i cannot vocally support for the same reason.

and lastly, i'm trying hard to remember if you've responded to me with anything but nonsense that does nothing but make me want to turn the lights off on you.

nope. nothing comes to mind.

I am most surprised that you are being abusive, Dont Tread.

If you think I am sarcastic, please point it out. I will refrain from the sarcasm since I would never want to offend you. I will merely post my links and then you can take issue with them as being sarcastic.

I did not know that this forum allowed posters to label other posters' submissions as "throwing sh.t all over the place"

Again, I would respectfully ask you to define the sh.t which is thrown all over the place and explain why you view it as sh.t?

The same goes for your disrespectful and personal comment about my
"petulance and childness"

I would respectfully request that you state exactly why you view something as "petulance or childness"

Now, please understand that I am not making a parallel here but I just want you to know that in the past when people have made disrepectful remarks and categorized my posts in scatological terms rather than logical ones, those remarks have usually indicated frustration on the part of those who made those disrepectful remarks with the fact that they could not counter the facts given by the first poster.

I would appreciate it if you would rethink your statement, Dont Tread--You didn't really mean to say sh.t- did you?

Teeny,
you said..." Commander in Chief, means that he is the Commander in charge of the Army and the Navy! That's ALL!"

So,does that mean he doesnt command the Air Force,or the Marines?

i rest my case.

Does your case sit on the sh.t you said I throw all over the place, Don't Tread?

I am surprised that you are so inarticulate when someone has pointed out your abusiveness!!!

DTOM,

Massa just can't help himself! He's stuck, and he'll never get loose!

Anon