NYT better get Lawered up...

[Rotax447]

Originally posted by Gunslinger
Rotax,

 There's more but I gotta go.  I think the president has a case.  The FISA court cannot limit his constitutional powers nore can he limit theirs.

There's more on the provisions of FISA here:
http://powerlineblog.com/archives/012631.php

Thank you Gunslinger.  It is good to receive a response from someone who really does think like a lawyer.

I understand what you wrote, and believe me, I have no intention of quibbling with you, or wasting your time, by debating how many angels are dancing on the head of a pin.  I am interested in this case, because it goes to the heart of matter over the powers of the three branches.

I understand that in absence of any legislative prohibition on domestic wiretaps, the state and federal governments would, perhaps be unfettered, to listen in on anyone, anytime.  I say “perhaps,”  because if Congress chose not to exercise it’s Article I authority on the unreasonableness of domestic wiretaps, SCOTUS could, under it’s Article III powers, declare such wiretaps unreasonable searches, and thus require a warrant.

Congress chose to exercise it’s Article I legislative authority over intelligence agencies, (agencies which Congress has the plenary power to create or destroy) when they passed the FISA Act.  The legislative intent of the act is clear.  Congress did not want intelligence agencies casting large nets upon the domestic waters.  They established a court, under their Article I powers, to monitor those nets, and to issue domestic warrants upon probable cause.  

If POTUS authorized a relatively small number of domestic wiretaps, which have a foreign locus, then he is well within his Article II powers.  The problem is, we don’t know.  This information is classified and held by only one branch of the government.  Well, not quite one branch.  When the FISA court was informed of the scope and breath of the surveillance, one of the judges resigned in protest.  That worries me.

I have not doubt that SCOTUS will hear this case.  I doubt that SCOTUS will grant POTUS unfettered authority to conduct wholesale domestic wiretaps under the guise of national security.

[Masherbrum]

Originally posted by Sixpence
What a bunch of BS, they can still do that doing through the court, and quickly. The reason they don't want to go through the court is they don't want a paper trail. There is no record of who they listened to or why they were listening to them. Nixon is having a good laugh somewhere.

This is so damned true.

Karaya

[Masherbrum]

"The NSA leak probe was launched after the Justice Department received a request from the spy agency." - From Article.

When does the NSA nut up and prosecute it's "holier than thou Agents"of leaking the information in the FIRST PLACE?   Talk about the pot and the f**king kettle!

Karaya

[midnight Target]

Originally posted by weaselsan
I hope some day that no ones loved ones are killed or maimed by a suicide bomber that had there civil rights protected all the way to point of detonation.

And I hope someday you get to live in your safe land of Shangri La where you get to keep all the rights you want while everyone else needs to worry about the government doing whatever it wants with theirs...... sucker?

[Gunslinger]

Originally posted by Rotax447
Thank you Gunslinger.  It is good to receive a response from someone who really does think like a lawyer.

I understand what you wrote, and believe me, I have no intention of quibbling with you, or wasting your time, by debating how many angels are dancing on the head of a pin.  I am interested in this case, because it goes to the heart of matter over the powers of the three branches.

I understand that in absence of any legislative prohibition on domestic wiretaps, the state and federal governments would, perhaps be unfettered, to listen in on anyone, anytime.  I say “perhaps,”  because if Congress chose not to exercise it’s Article I authority on the unreasonableness of domestic wiretaps, SCOTUS could, under it’s Article III powers, declare such wiretaps unreasonable searches, and thus require a warrant.

Congress chose to exercise it’s Article I legislative authority over intelligence agencies, (agencies which Congress has the plenary power to create or destroy) when they passed the FISA Act.  The legislative intent of the act is clear.  Congress did not want intelligence agencies casting large nets upon the domestic waters.  They established a court, under their Article I powers, to monitor those nets, and to issue domestic warrants upon probable cause.  

If POTUS authorized a relatively small number of domestic wiretaps, which have a foreign locus, then he is well within his Article II powers.  The problem is, we don’t know.  This information is classified and held by only one branch of the government.  Well, not quite one branch.  When the FISA court was informed of the scope and breath of the surveillance, one of the judges resigned in protest.  That worries me.

I have not doubt that SCOTUS will hear this case.  I doubt that SCOTUS will grant POTUS unfettered authority to conduct wholesale domestic wiretaps under the guise of national security.

Thanks for the reply, I think the case is interesting to say the least.  Once you get through all the muckety muck politics and mudslinging there does seem to be a case and presidence on both sides of the argument.

One thing to consider is technology, we don't know the scope or the way the NSA is conducting survailence, it may be a new method of sorts.  I beleive there is a difference here in spying on somone for criminal prosecution and spying for intel purposes relating to national security with this case relating to the later of the two.

[Dago]

Originally posted by Sixpence
Amendment IX:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Now, where's the right to privacy?

It is clearly in those two amendments.

The government has no power to tell people what to do except in areas specifically authorized in the Constitution.

That means it has no right to tell people whether or not they can engage in homosexual acts; no right to invade our privacy; no right to manage our health-care system; no right to tell us what a marriage is; no right to run our lives; no right to do anything that wasn't specifically authorized in the Constitution.

(Notice also that nowhere in the Constitution does it say that government may violate the Bill of Rights if the target of its wrath is a non-citizen. Government isn't authorized to jail non-citizens indefinitely or deny them due process of law. There's a good reason for that, but that's another subject.)

Now, answer my question, why is it necessary for the president to bypass the fisa court?

So, where in there anywhere does it say you have a right to absolute privacy of communications?  Bush authorizing electronic eavesdropping isnt violating any amendment you just quoted.  Bush isnt telling anyone what to say or how to live when he directs the NSA to listen for terrorist communications.  That isnt even close.

Powers not delegated to the US are retained by use of the people, and I think you might recognize that our government is defined as a government of the people, for that people and by the people.  The government is of the people, so it seems the government acting on the behalf of the people to safeguard the society have acted within the constitution.

[Rotax447]

Originally posted by Gunslinger
Thanks for the reply, I think the case is interesting to say the least.  Once you get through all the muckety muck politics and mudslinging there does seem to be a case and presidence on both sides of the argument.

One thing to consider is technology, we don't know the scope or the way the NSA is conducting survailence, it may be a new method of sorts.  I beleive there is a difference here in spying on somone for criminal prosecution and spying for intel purposes relating to national security with this case relating to the later of the two.

Remember, Congress used it’s Article I interstate commerce clause power to legislate CALEA; the bill was passed in 1994.  So, from a technological point of view, the government can tap, one, or millions of phones, at the stroke of a few keys on the keyboard.

Since I am not a conspiracy theorist, CALEA did not worry me.  If the executive conducted illegal surveillance against me, I trusted the courts to throw it our under the exclusionary rule.  With the possibility of FISA being struck down, I have a reason to worry.  

One worry is using intelligence, gathered under national security surveillance, conducted without a warrant and in secrete, to justify a criminal surveillance warrant.  This could start us down a very slippery slope.  What is used against terrorists today, has a nasty habit of being used against grandmothers demonstrating outside of abortion clinics, tomorrow.

A second big concern.  We are from time to time, going to inadvertently monitor some little old lady.  All sorts of interesting tidbits will be discovered.  Who is having an affair with whom.  Who is abusing drugs, alcohol, their spouses.  The list goes on and on.  If this data is not use for criminal prosecution, or political blackmail, then how will it be used?  Does the government intend to destroy it?  If so, how and when?  Will it archive the data?  If so, for how long?  Who in or out of the government will have access to this data?  These are questions that, national security be damned, I want answers to.  

Yes indeed, Nixon must be smiling like a Cheshire cat:-)

I don’t trust any one branch of the government.  Taken in toto, I do trust all three.  I believe Congress was thinking along those same lines when it legislated FISA.  

However it turns out, this is going to be a very interesting case to watch.

[Shamus]

Originally posted by Rotax447

One worry is using intelligence, gathered under national security surveillance, conducted without a warrant and in secrete, to justify a criminal surveillance warrant.  This could start us down a very slippery slope.  What is used against terrorists today, has a nasty habit of being used against grandmothers demonstrating outside of abortion clinics, tomorrow.

Well put Rotax.

Though I think a few of the "I dont have anything to hide" types will be spouting the end justifies the means garbage.

shamus

[crowMAW]

Gun...thanks for the link to the blog with that legal analysis.  That is an excellent blog and I have it bookmarked as a favorite.  It is always good to see all aspects of an argument.

While the court cases cited in your excerpt and in the complete blog article are interesting, those cases before 1978 are not controlling in this situation due to the change in Federal law, ie FISA.  Further, Truong is not controlling (even according to the FISA Review Court in Sealed Case No. 02-001) because it is regarding wiretaps that took place before FISA was inacted. (Interestingly, your blogger uses both Truong and this case, but leaves out the part from the FISA Review Court opinion that says it is no longer relevent )  And again, Duggan does not question that the President prior to FISA had unfettered power to wiretap in the interest of national security...but it does not indicate that it is unregulated after FISA.

You have to recall that FISA and Title III were created specifically because of this grey area conflict between US Constitution Article II and the 4th Amendment.  Every president from FDR to Nixon had abused Article II in order to gather "political intelligence" by authorizing warrantless search/wiretaps on political enemies by identifying them as potential enemies of the US.  And then there was  J. Edgar Hoover and his internal investigations of citizens under the ruse of protecting national security.  In the end this all came to light with the Church Commission and as a result Congress enacted FISA and modified Title III to regulate foreign and domestic intelligence gathering respectively.

FISA, Title III and the Electronic Commnunications Privacy Act--even after amendment by the Patriot Act--provide limits to when and how long the President/Attorney General can authorize warrantless wiretaps.  IE, the President can authorize warrantless wiretaps under Article II, however Congress has limited that power.  50 U.S.C. § 1809(a)(1) specifically prohibits electronic surveillance except where granted by statute.

By statute, FISA grants the President the power of warrantless wiretaps for no more than one year IF the surveillance will not acquire communication where a US person is a party, 50 U.S.C. § 1802(a)(1) & (b) and restricts unlimited warrantless wiretaps in time of war to 15 days after the declaration by Congress, 50 U.S.C. § 1811.

Beyond that, the wiretap must have a warrant issued by the FISA Court within 72 hours of the start of the surveillance.

This program has been going on for years and directed at US persons according to the NYT.

There are a couple of things that really set off alarms about this case: 1) The acting Attorney General, James B. Comey, refused to re-approve the program while he was filling in for Ashcroft, who had been hospitalized.  The program had to shut down because of his objections as to whether the President had legal authority to continue.  Ashcroft had to give approval from his intensive care bed. 2) The NSA insiders who leaked the info would not have committed an act of treason (and yes, I do think what they did constitutes treason) without thinking that the program was seriously illegal...it had to go through their mind that leaking this could bring sever punishment and possibly even a death penalty. 3) A FISA judge quit in protest...yes, he may be a liberal, but he had been sitting on the FISA Court for all of Bush's administration and yet it took till now, over this issue, for him to resign.  This is a person who above anyone should know how easy it would have been for the Administration to get a warrant, regardless of whether they thought they needed to or not.

[Rotax447]

We must remember in this case, laws, acts, and statutes, only apply to the common folk.  We are discussing the powers of The President, Congress, and The Supremes.  They will go straight to the Constitution.

Are the explicit powers granted to Congress under Article I Section 8, interlocutory verses the derived power granted to The President under Article II Section 2?

To further muddy the waters, The Supremes have attached a “the totality of the circumstances” evocation, to the 4th Amendment.  Anybody care to guess what that actually means?

[crowMAW]

Originally posted by Rotax447
We must remember in this case, laws, acts, and statutes, only apply to the common folk.  We are discussing the powers of The President, Congress, and The Supremes.  They will go straight to the Constitution.

50 U.S.C. § 1801-1811 are written specifically for the President and Attorney General.  These are not directed at the common folk.

Here is an excerpt of 50 U.S.C. § 1802:

(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;

The President may challenge the constitutionality of these acts, but Bush had the opportunity to have them changed when the Patriot Act was passed.  If he thought he needed those special powers, why wouldn't he have asked for them when it was relevent?

Originally posted by Rotax447
Are the explicit powers granted to Congress under Article I Section 8, interlocutory verses the derived power granted to The President under Article II Section 2?

Which interloculotry verses...declaration of war?  If so, then yes, but limited by 50 U.S.C. § 1811.  But even if we were to consider that the Authorization for Use of Military Force granted after 9/11 consitutes a declaration of war (which I don't think it does), the 15 days granted by 50 U.S.C. § 1811 are long since over.

Also note that there is no specific reference to the President's power to suspend articles of the Consitution in time of war.  This was upheld in Youngstown Co. v. Sawyer back in the 1950s.

Originally posted by Rotax447
To further muddy the waters, The Supremes have attached a “the totality of the circumstances” evocation, to the 4th Amendment.  Anybody care to guess what that actually means?

That means that you must look at all of the facts of the situation before making a determination.  As opposed to a "bright line" where there are specific judicial guidelines to determine if the action was proper.

[Holden McGroin]

Originally posted by crowMAW
.... But even if we were to consider that the Authorization for Use of Military Force granted after 9/11 consitutes a declaration of war (which I don't think it does), the 15 days granted by 50 U.S.C. § 1811 are long since over....

From The United States District Court for the District of Massachucetts, John Doe I v. President Bush,

It is quite clear that were the President to undertake military operations in Iraq here, he would be acting pursuant to the Constitution, Supreme Court precedent, a history of Executive and Legislative Branch practice, and the express approval of the 107th Congress by Joint Resolution. According to the analysis set forth by Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring), and later followed and interpreted by the Supreme Court in Dames & Moore v. Regan, 453 U.S. 654 (1981), the President's power under these circumstances is at its apex, using "all that he possesses in his own right plus all that Congress can delegate." Plaintiffs' attempt to challenge this authority is baseless.  

This as I read it pretty much says the joint resolution is the 'functional equivalent of a declaration of war.'

[Rotax447]

Originally posted by crowMAW
50 U.S.C. § 1801-1811 are written specifically for the President and Attorney General.  These are not directed at the common folk.

Here is an excerpt of 50 U.S.C. § 1802:

[/b]

I understand what Title 50 says.  I read it before I wrote my first post on this subject.  The President, and the Attorney General, have already stated that it does not apply to The President.  This was their rational.

Article II Section 2 -  “The President shall be Commander in Chief of the Army and Navy of the United States …”  This is an explicit power granted by the Constitution to The President.  From this explicit power, several derived  powers are assumed.

1)  I am responsible for the security and welfare of the American People.
2)  I am responsible for the national security of the United States.

Congress cannot limit or modify these Presidential powers, unless the Constitution grants them the explicit power to do so.  I believe it does.

Article I Section 8 - “To make Rules for the Government and Regulation of the land and naval Forces;” and “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 President may challenge the constitutionality of these acts, but Bush had the opportunity to have them changed when the Patriot Act was passed.  If he thought he needed those special powers, why wouldn't he have asked for them when it was relevent?

[/b]

Because, like every President since Roosevelt II, he chooses to ignore laws that he deems do not apply to him, until in a time and place of his choosing, he violates them.

That means that you must look at all of the facts of the situation before making a determination.  As opposed to a "bright line" where there are specific judicial guidelines to determine if the action was proper.

Yes, that is exactly what it means.  And it is the Judicial Branch which, after examining all of the facts, and in many cases after the fact, determines whether a warrant is, or was, required.  Thus, The Supremes are the wild card in all of this.

If you read my first post, you will clearly see that I believe Bush II has ’ignored’ the law.  I don’t for one moment believe he will be impeached over it.  What about the common folk who work at the NSA.  The people who actually tap your phone and mine.  What is their excuse for violating the law going to be?

“Pardon me George, I was just following orders?”

[Harry]

Originally posted by Thrawn
I am constantly amazed by some of the people on this board.

Bush pisses all over your Constitutional rights (vis a vis the fouth amendment), tries to break the balance of powers regarding the judicial branch.  And you guys want to see the NYT times get charged for exercising thier first amendment rights.

WTF?

If they are so eager to give up their freedoms then let them. If they have to learn by their own mistakes rather than European history then let them. They deserve nothing less.

[Rotax447]

Shamus,

I suspect that you, like me, watched Watergate unfold.  It is scary to realize how quickly people forget the unbelievable abuse of power committed by The Executive Branch.

Even more scary; to think they did not forget, yet still condone the unfettered use of Executive surveillance, against the American People.