NYT better get Lawered up...

[Gunslinger]

Originally posted by crowMAW
Also the Appeals court found that it was only legal becuase it the surveillance took place before FISA.  The FISA Review Court even made that distinction when citing it in Sealed Case No. 02-001.

Yes but also notable in sealed case 02-001

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

[crowMAW]

Originally posted by Holden McGroin
But FISA says 15 and Clinton says a year.  Your not saying Clinton issued a flawed directive are you?

Please read the law he cited as "persuant to":


§ 1822. Authorization of physical searches for foreign intelligence purposes

(a) Presidential authorization
(1) Notwithstanding any other provision of law, the President, acting through the Attorney General, may authorize physical searches without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if—
(A) the Attorney General certifies in writing under oath that—
(i) the physical search is solely directed at premises, information, material, or property used exclusively by, or under the open and exclusive control of, a foreign power or powers (as defined in section 1801 (a)(1), (2), or (3) of this title);
(ii) there is no substantial likelihood that the physical search will involve the premises, information, material, or property of a United States person; and
(iii) the proposed minimization procedures with respect to such physical search meet the definition of minimization procedures under paragraphs (1) through (4) [1] of section 1821 (4) of this title; and
(B) the Attorney General reports such minimization procedures and any changes thereto to the Permanent Select Committee on Intelligence of the House of Representatives and the Select Committee on Intelligence of the Senate at least 30 days before their effective date, unless the Attorney General determines that immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

[crowMAW]

Originally posted by Gunslinger
Yes but also notable in sealed case 02-001

The President's authority is not questioned or enchroached by FISA, but it is limited by time:  one year for non-US persons and 15 days for anyone after declaration of war.

Congress has authority to set those limits by the Consitution under Article I Section 8:

To make Rules for the Government and Regulation of the land and naval Forces.

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.

Also note that the FISA Review Court sole purpose is to review denied applications for a warrant (ie, it's second chance for the Gov to make it's case).  As far as I am aware, it does not have the power to "make new law" by precedent on consitutional issues outside of the scope whether or not it is proper to grant a warrant.

There is no case where FISA limitations on presidential powers has been heard...as far as I know, but please post one if you can find it (I couldn't find one in West Law)  And I would think that if the President had an issue with those limits, he would have had them addressed while they were being modified by the Patriot Act.

[Holden McGroin]

OK Crow one more question...

Is eavesdropping a "physical search"?

[Gunslinger]

Holden,

Title 50, Section 1801 of the U.S. Code, the first section of the FISA statute. That section defines the “electronic surveillance” over which the FISA court has jurisdiction:


(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.


From what I gather if the NSA was bugging phone lines outside the US:

 1.  It would be outside of the US no US court to include FISA would have jurisdiction over such
2.  None of this would be applicable if this was not done for law enfocrment purposes

Also Crow,

IF the survailence was conducted soley outside the United States the US Govt could not go through FISA to get a warrent.  If the surveillance was outside the jurisdiction of the FISA court, no such orders could be issued. The administration could conclusively answer this question by disclosing where the surveillance equipment is located. But that is, of course, precisely the kind of secret information that the administration doesn’t want the terrorists to know.

And in my post above I think more or less I was reffering to the presidents constitutional powers.  You say: "The President's authority is not questioned or enchroached by FISA, but it is limited by time:"

The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy."  But, I am ignorant if this would only apply in a declaration of war or if the "authorization to use force" (note not for Iraq but after 9/11) would suffice.  This seems to be backed up by the Hamdi v. Rumsfeld, 542 U.S. 507 (2004) decision.

[crowMAW]

Originally posted by Gunslinger
From what I gather if the NSA was bugging phone lines outside the US:

 1.  It would be outside of the US no US court to include FISA would have jurisdiction over such
2.  None of this would be applicable if this was not done for law enfocrment purposes

That's the way I read the law.  Although the Patriot Act broadened the law enforcement portion, if the surveillance is purely for foreign intelligence gathering then it is OK...but that is never the case...the Governement will always want to reserve the ability to use the collected data in court.  And I want them to be able to drop terrorists they uncover through surveillance in jail...not just listen to them plot and plan.

Originally posted by Gunslinger
IF the surveillence was conducted soley outside the United States the US Govt could not go through FISA to get a warrent.  If the surveillance was outside the jurisdiction of the FISA court, no such orders could be issued. The administration could conclusively answer this question by disclosing where the surveillance equipment is located. But that is, of course, precisely the kind of secret information that the administration doesn’t want the terrorists to know.

Yes, spying is legal for the President to do on non-US persons.  No warrant is required.  The moment a US person is involved the rules change.  Accidental surveillance data collection of a US person is OK, but if you expect to US persons to be involved then you gotta follow FISA.

Unfortunately, the Administration has admitted that there were domestic targets.  And it does not matter where the spy equipement is located (in space even)...if it is a US agency conducting surveillance activities on US persons, then it requires a warrant under FISA.

Now a good loop hole, as I see it, is spying by foreign powers providing intel to the US.  I think that if MI5 were to submitt intel to the US Gov't on communications it intercepted between a US person and a UK national, then that would probably be fine.  So long as MI5 does not become a surrogate for the US Gov't but is acting on it's own government's behalf, then I can't see a legal issue.  In criminal law, a PI can search your house without a warrant (of course it may be breaking and entring) and if they discover something illegal, give that info to the police (US v Miller).  That evidence is OK so long as the police did not ask the PI to do the search for them (act as a surrogate) and the PI was not performing the search with intent to help the police.

Originally posted by Gunslinger
The federal courts have long recognized that when it comes to waging war, the President, not Congress or the courts, is the supreme authority. In Fleming v. Page, 9 How. 603, 615 (1850), the Supreme Court wrote that the President has the Constitutional power to "employ [the Nation's armed forces] in the manner he may deem most effectual to harass and conquer and subdue the enemy."  But, I am ignorant if this would only apply in a declaration of war or if the "authorization to use force" (note not for Iraq but after 9/11) would suffice.  This seems to be backed up by the Hamdi v. Rumsfeld, 542 U.S. 507 (2004) decision.

It is debatable whether the Authorization for Use of Military Force (AUMF) consititutes a declaration of war.  Some legal experts say yes and point to Hamdi...others point to previous declarations of war and say the requisit language is missing (specifically, the word "war").

But even if it were a declaration of war, 50 USC 1811 limits warrantless searches on US persons to 15 days after the declaration.

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 a period not to exceed fifteen calendar days following a declaration of war by the Congress.

[Rotax447]

Originally posted by john9001
crowMAW, when something gets blown up you will be the first one to cry"why didn't the govt know about it, why didn't they DO SOMETHING"

The problem here is really quite simple.  The government (Article II branch ) wants their cake, and they want to eat it.

Congress has passed laws which make a warrant less search of a US persons phone, in the US, unreasonable, and in most cases, illegal.

The Supremes have ruled these laws constitutional, and to uphold them, they evoked the ‘exclusionary rule’ from the 4th Amendment.

The loophole in the law, was POTUS invoking national security to conduce a warrant less search.  Congress closed this loophole when it passed the FISA Act.

So, John, yes, I want George to do something!  Read that sentence very carefully.  I said something, not everything.  I want him to use the FISA Act to conduct surveillance on persons, who are suspected of having links to radical Islamic terrorists groups.  I want him to send an army to the Middle East, from whence the attacks came.  I want that army to take names, and kick butt.  If there is a nexus between these terrorist groups and a foreign government, I want that government removed, by whatever military force is necessary.

If George does not do these things, then it is only a matter of time until Allah’s disciples breath nuclear fire on an American city.

I do not want George to conduct surveillance on demonstrators outside of abortion clinics, republican national headquarters, civil rights meetings, or even the starve a child, save the penguin meetings.  I do not want information gathered in surveillance used for political blackmail, personal blackmail, or any criminal prosecution that goes beyond the scope of the warrant for that surveillance.

You are free to waive your civil rights whenever you wish.  Don’t even think of waiving mine.

[Gunslinger]

I don't know if this has been thrown in here yet but let me throw you all a bone.

This may very well be connected and be one of the reason's "why" the executive branch has fought so vigerously to keep detainees out of federal court and into military tribunals.

But Crow I have to broach this topic.  If again based on hamdi, the US is conducting survailence entirly overseas how would a US court have juristiction.  Even under FISA it says the govt has to be intentionally targeting that United States person.  Now the way I see it a US soldier does not need a court ordered warrent from a US court to kick in a door in Iraq and search the entire house.  Why would a survailence team need a FISA warrent if the survailence is being conducted outside US soil where FISA has no jurisdiction.  BUT, I do concede that none of this could be used in a criminal trial wich leads me to point to my above statment.  

One more thing to piggy back apon what you said about foreign intel, this programs basis may also be to provide intel to foreign govts wich don't have the same laws we do.  A FISA warrent wouldn't mean diddly in Europe.  

I think the only thing you can do about this whole thing is speculate.  There's not enough data to make an ascertation definativly.

[Gunslinger]

Originally posted by Rotax447
The Congress closed this loophole when it passed the FISA Act.
.

Not entirly,

Only in instances of criminal prosecution.  As long as this evidence isn't being used in court to obtain further warrents and isn't use at all in a criminal prosecution even under FISA it's perfectly legal.

[crowMAW]

Originally posted by Gunslinger
If again based on hamdi, the US is conducting survailence entirly overseas how would a US court have juristiction.  Even under FISA it says the govt has to be intentionally targeting that United States person.  Now the way I see it a US soldier does not need a court ordered warrent from a US court to kick in a door in Iraq and search the entire house.  Why would a survailence team need a FISA warrent if the survailence is being conducted outside US soil where FISA has no jurisdiction.  BUT, I do concede that none of this could be used in a criminal trial wich leads me to point to my above statment.  

Sorry if I wasn't clear in my last post...but yes, I agree if the surveillance is entirely overseas of non-US persons, then no warrant is needed. For example, if all the communications intercepted originated outside the US and the call receipiant is not in the US, then no warrant is needed.

[Rotax447]

Originally posted by Gunslinger
Not entirly,

Only in instances of criminal prosecution.  As long as this evidence isn't being used in court to obtain further warrents and isn't use at all in a criminal prosecution even under FISA it's perfectly legal.

Unless you provide me an example, I have no idea what you are talking about.

[Gunslinger]

Rotax you said "The Congress closed this loophole when it passed the FISA Act."

But that's not entirly true.  The NSA can spy all they want for inteligence gathering and not criminal prosicution.  FISA clearly defines Electronic Survailence as follows:

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

[Rotax447]

Originally posted by Gunslinger
Rotax you said "The Congress closed this loophole when it passed the FISA Act."

But that's not entirly true.  The NSA can spy all they want for inteligence gathering and not criminal prosicution.  FISA clearly defines Electronic Survailence as follows:

(f) “Electronic surveillance” means—

(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;

(3) the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States; or

(4) the installation or use of an electronic, mechanical, or other surveillance device in the United States for monitoring to acquire information, other than from a wire or radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes.

Okay, you just quoted chapter and verse from 50 USC 36 (s) 1801.  This is simply a *definition* of the term “Electronic Surveillance.”  It does not address who, how, what, when, and where, this surveillance will be used.

Please, I am getting a little too old to play hunt for the Easter Egg.  A quote, without a reference to chapter and verse, is no help at all.

[Rotax447]

And, lest people think that Congress, was not dead serious about preventing the Article II Branch from using national security surveillance, for political or personal “Dirty Tricks,” have a gander at this.

50 USC 36 (s) 1810

Civil liability:

An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.