Inherently Dangerous
[J.D. Henderson,
Friday January 20, 2006 at 5:12pm ]
I have now read the entire justice department document defending the NSA warrantless wiretaps.
It is a longer version of what the administration has been saying all along. It admits that the wiretaps were not authorized under FISA unless the AUMF is considered authorization to bypass FISA. That argument has already been hacked to death. It is an exceedingly weak argument.
To re-address this argument briefly, the document states that the AUMF authorized the president to ignore FISA because of the "President's... long-recognized power to engage in communications intelligence targeted at the enemy." These warrantless wiretaps were of US citizens within the United States, not the "enemy." Is there any due process or oversight involved before US citizens can be declared an enemy of the state? The president says no, the decision is his and his alone. That seems to jar with the Bill of Rights.
The document also states that FISA is a restriction "placed on national security operations during times of peace." As mentioned in other posts, FISA is part of Title 50 of the US Code, which is entitled "War and National Security." The president is claiming that laws specifically written for "War and National Security" are laws only relevant in times of peace.
The other argument is the "inherent authority" as commander-in-chief argument. That is even weaker. Commander in Chief is a military title, not a civilian one. It merely means that generals are subordinate to the president - not that Congress is, and most definitely not that civilians are subordinate. Generals can't order civilians about and damn sure can't ignore the law. Neither can a "commander in chief." The president is "commander in chief" only for the military. He is not your commander in chief unless you are on active duty.
What is appalling is the length the administration goes to in order to make these exceedingly weak arguments. The entire document is basically a long justification for the president's power to collect foreign intelligence. The problem with that argument is that it is not disputed, not by anybody. Yes, the president DOES have the authority to spy on our enemies. His powers over foreign policy and foreign intelligence collection are great. The problem is with DOMESTIC intelligence collection. The problem is not with wiretapping Al Queda, it is wiretapping IN THE UNITED STATES, ON US CITIZENS, WITHOUT A WARRANT. This is not about foreign intelligence, it is about our government's actions with respect to US citizens. It is about US.
The document does not even address the FISA restrictions on wiretapping of "US Persons" and constantly repeats that the wiretaps were "international" and that only terrorists and those suspected of terrorism were targeted. Of course this ignores the 4th Amendment. For those who aren't sure if this is a violation of the 4th Amendment, please recall that it was demanded by the People before they would agree to adopting the Constitution, and that our nation had just fought a war against a government that did exactly what the president is claiming he can do - spy on us without a warrant. If the Founding Fathers found the searches and seizures by British soldiers, in wartime, when our territory was a battlefield, so objectionable that they would demand their own government be prevented from doing the same things without a warrant, then why does the President think he can do so merely because we are at war?
The 4th Amendment was not written merely to control law enforcement officers. When it was written there were no organized police forces in existence. In addition, the Bill of Rights was not considered to apply to the states at the time, but only to limit the powers of the federal government. The federal government at the time didn't have any police forces or even any law enforcement responsibilities. Those duties were considered to be the exclusive province of the states. No, the 4th Amendment was considered to apply to soldiers conducting searches of suspected enemies of the state - because who else would conduct those searches in 1789 or 1791? There was no FBI, there was no Justice Department, there was no police force anywhere at all. If the federal government wanted to conduct a search of anybody in 1791 it would order soldiers or sailors to do it. The president now claims that it does not apply to searches of US citizens inside the United States because we are at war and intelligence collection is part of the nature of military force. The document presents the 4th Amendment as only a law-enforcement restriction applying in the "criminal context." That goes against the plain language of the 4th Amendment, its history, and common sense.
The administration also argues that warrantless wiretapping by presidents has a long history, but all the references are to pre-FISA warrantless wiretaps. FDR or Woodrow Wilson could not have violated FISA because FISA didn't exist. Warrantless wiretaps by pre-FISA presidents do not help the administration make its case - and, tellingly, that point is also not even addressed. The guys that wrote this document are obviously some smart lawyers, and the fact that they didn't even address the pre-FISA nature of prior warrantless wiretaps is damning in the extreme. The cases the adminstration cites in support are either pre-FISA or not on point.
The administration also, bizarrely, cites the wiretapping of US telegraph lines by a confederate general during the civil war in support of its contention that wiretapping in time of war does not require a warrant. This is astonishing. The actions of a man who was a self-declared enemy of the United States, who took up arms against the Constitution of the United States and was responsible for the deaths of tens of thousands of US Army soldiers, is being cited in order to show that the president is not violating the Constitution? I didn't realize that the actions of our enemies could be used to set Constitutional law precedents. But yes, in wartime the military can spy on the enemy. Nobody has suggested otherwise. The enemy is not protected by the 4th Amendment or FISA. We, the People of the United States, are protected - unless, of course, the administration's argument is allowed to stand unchallenged.
The only conclusion I can come to from the document is that the president feels we are the enemy - or at least, anybody he wants to declare an enemy is now an enemy. The 4th Amendment does not have a presidential "opt-out" provision. It clearly limits the power of the government, including the president, when it comes to dealing with US citizens. FISA does have exceptions for warrantless wiretaps in certain circumstances, but these were ignored. The president does not even attempt to make the case, as others did on this blog, that his actions fell within those FISA exceptions.
The document goes to great lengths in pointing out the many safeguards the executive branch set up for this program - how the AG must sign off, how the program is regularly reviewed, etc. The document suggests that this means that the Administration does not view the AUMF as a "blank check" per Hamdi. That will not suffice. Our Founding Fathers did not think it wise for the different branches of government to monitor themselves, instead setting up a system of separate but equal branches that would oversee each other. Self-monitoring is not enough. FISA was passed in the first place because self-monitoring by the Executive Branch already failed, repeatedly, in both democratic and republican administrations. The reasons FISA was passes are not discussed in the document.
The document says that if FISA is found to limit the powers of the president in gathering intelligence he feels necessary to fight the war on terror, that FISA itself is unConstitutional. This is a direct challenge to the Congress of the United States.
The document also says that it would be "unreasonable and wholly impractical to demand that Congress specifically amend FISA in order to assist the President in defending the Nation. Such specificity would also have been self-defeating because it would have apprised our adversaries of some of our most sensitive methods of intelligence gathering." Setting aside the obvious question of the need for the Patriot Act if such a statement were true, how does specifying that FISA be amended when it comes to the GWOT give any information to our enemies? Given the nature of the FISA courts, wouldn't they have already expected we would listen in or use pen registers or even data mining?
And why is there any need to amend FISA? Why not simply use the FISA courts and get warrants? The document speaks of the need for speed and flexibility. Yet FISA already allows surveillance (including wiretaps, pen registers, etc.) to be initiated immediately while warrants are sought. There is no need to "wait" for FISA approval before initiating surveillance. And FISA courts approve 99.9997368 % of the requests made. If FISA courts wouldn't approve the requests, wouldn't that probably be only in cases of egregious violations of the rights of innocent US citizens given that FISA judges only turned down 5 out of the last 19,000 requests? Is 99.9997368% agreement still too little agreement, and too much oversight, for the president? Apparently so. The document states that the "President has determined that the speed and agility required to to carry out the NSA activities successfully could not have been achieved under FISA." Aside from a clear admission that the NSA activity was not within FISA, this is insane. Again I repeat, 99.9997368% approval of warrant requests, requests can be made after surveillance has already begun, and FISA contains provisions for warrantless wiretaps in certain circumstances. And still FISA was too cumbersome?
The document also repeatedly cites the opinions of Attorneys-General to make its case. FISA is a law passed by Congress, and this attorney general can not overrule it - nor can past attorneys-general.
In short, this document confirms many of our worst fears. This president is convinced he has the authority to do whatever he wants, whenever he wants, regardless of the law, because we are at war.
Well, let me be as clear as I can be. I agree completely with that statement. It also has absolutely nothing to do with this controversy.
This is not about terrorism, war, or safety. It is much simpler than that. It is about whether are to govern ourselves, or whether we are to be governed by an all-powerful commander in chief. It is inherently dangerous - much more dangerous than anything the terrorists can accomplish.
It is a longer version of what the administration has been saying all along. It admits that the wiretaps were not authorized under FISA unless the AUMF is considered authorization to bypass FISA. That argument has already been hacked to death. It is an exceedingly weak argument.
To re-address this argument briefly, the document states that the AUMF authorized the president to ignore FISA because of the "President's... long-recognized power to engage in communications intelligence targeted at the enemy." These warrantless wiretaps were of US citizens within the United States, not the "enemy." Is there any due process or oversight involved before US citizens can be declared an enemy of the state? The president says no, the decision is his and his alone. That seems to jar with the Bill of Rights.
The document also states that FISA is a restriction "placed on national security operations during times of peace." As mentioned in other posts, FISA is part of Title 50 of the US Code, which is entitled "War and National Security." The president is claiming that laws specifically written for "War and National Security" are laws only relevant in times of peace.
The other argument is the "inherent authority" as commander-in-chief argument. That is even weaker. Commander in Chief is a military title, not a civilian one. It merely means that generals are subordinate to the president - not that Congress is, and most definitely not that civilians are subordinate. Generals can't order civilians about and damn sure can't ignore the law. Neither can a "commander in chief." The president is "commander in chief" only for the military. He is not your commander in chief unless you are on active duty.
What is appalling is the length the administration goes to in order to make these exceedingly weak arguments. The entire document is basically a long justification for the president's power to collect foreign intelligence. The problem with that argument is that it is not disputed, not by anybody. Yes, the president DOES have the authority to spy on our enemies. His powers over foreign policy and foreign intelligence collection are great. The problem is with DOMESTIC intelligence collection. The problem is not with wiretapping Al Queda, it is wiretapping IN THE UNITED STATES, ON US CITIZENS, WITHOUT A WARRANT. This is not about foreign intelligence, it is about our government's actions with respect to US citizens. It is about US.
The document does not even address the FISA restrictions on wiretapping of "US Persons" and constantly repeats that the wiretaps were "international" and that only terrorists and those suspected of terrorism were targeted. Of course this ignores the 4th Amendment. For those who aren't sure if this is a violation of the 4th Amendment, please recall that it was demanded by the People before they would agree to adopting the Constitution, and that our nation had just fought a war against a government that did exactly what the president is claiming he can do - spy on us without a warrant. If the Founding Fathers found the searches and seizures by British soldiers, in wartime, when our territory was a battlefield, so objectionable that they would demand their own government be prevented from doing the same things without a warrant, then why does the President think he can do so merely because we are at war?
The 4th Amendment was not written merely to control law enforcement officers. When it was written there were no organized police forces in existence. In addition, the Bill of Rights was not considered to apply to the states at the time, but only to limit the powers of the federal government. The federal government at the time didn't have any police forces or even any law enforcement responsibilities. Those duties were considered to be the exclusive province of the states. No, the 4th Amendment was considered to apply to soldiers conducting searches of suspected enemies of the state - because who else would conduct those searches in 1789 or 1791? There was no FBI, there was no Justice Department, there was no police force anywhere at all. If the federal government wanted to conduct a search of anybody in 1791 it would order soldiers or sailors to do it. The president now claims that it does not apply to searches of US citizens inside the United States because we are at war and intelligence collection is part of the nature of military force. The document presents the 4th Amendment as only a law-enforcement restriction applying in the "criminal context." That goes against the plain language of the 4th Amendment, its history, and common sense.
The administration also argues that warrantless wiretapping by presidents has a long history, but all the references are to pre-FISA warrantless wiretaps. FDR or Woodrow Wilson could not have violated FISA because FISA didn't exist. Warrantless wiretaps by pre-FISA presidents do not help the administration make its case - and, tellingly, that point is also not even addressed. The guys that wrote this document are obviously some smart lawyers, and the fact that they didn't even address the pre-FISA nature of prior warrantless wiretaps is damning in the extreme. The cases the adminstration cites in support are either pre-FISA or not on point.
The administration also, bizarrely, cites the wiretapping of US telegraph lines by a confederate general during the civil war in support of its contention that wiretapping in time of war does not require a warrant. This is astonishing. The actions of a man who was a self-declared enemy of the United States, who took up arms against the Constitution of the United States and was responsible for the deaths of tens of thousands of US Army soldiers, is being cited in order to show that the president is not violating the Constitution? I didn't realize that the actions of our enemies could be used to set Constitutional law precedents. But yes, in wartime the military can spy on the enemy. Nobody has suggested otherwise. The enemy is not protected by the 4th Amendment or FISA. We, the People of the United States, are protected - unless, of course, the administration's argument is allowed to stand unchallenged.
The only conclusion I can come to from the document is that the president feels we are the enemy - or at least, anybody he wants to declare an enemy is now an enemy. The 4th Amendment does not have a presidential "opt-out" provision. It clearly limits the power of the government, including the president, when it comes to dealing with US citizens. FISA does have exceptions for warrantless wiretaps in certain circumstances, but these were ignored. The president does not even attempt to make the case, as others did on this blog, that his actions fell within those FISA exceptions.
The document goes to great lengths in pointing out the many safeguards the executive branch set up for this program - how the AG must sign off, how the program is regularly reviewed, etc. The document suggests that this means that the Administration does not view the AUMF as a "blank check" per Hamdi. That will not suffice. Our Founding Fathers did not think it wise for the different branches of government to monitor themselves, instead setting up a system of separate but equal branches that would oversee each other. Self-monitoring is not enough. FISA was passed in the first place because self-monitoring by the Executive Branch already failed, repeatedly, in both democratic and republican administrations. The reasons FISA was passes are not discussed in the document.
The document says that if FISA is found to limit the powers of the president in gathering intelligence he feels necessary to fight the war on terror, that FISA itself is unConstitutional. This is a direct challenge to the Congress of the United States.
The document also says that it would be "unreasonable and wholly impractical to demand that Congress specifically amend FISA in order to assist the President in defending the Nation. Such specificity would also have been self-defeating because it would have apprised our adversaries of some of our most sensitive methods of intelligence gathering." Setting aside the obvious question of the need for the Patriot Act if such a statement were true, how does specifying that FISA be amended when it comes to the GWOT give any information to our enemies? Given the nature of the FISA courts, wouldn't they have already expected we would listen in or use pen registers or even data mining?
And why is there any need to amend FISA? Why not simply use the FISA courts and get warrants? The document speaks of the need for speed and flexibility. Yet FISA already allows surveillance (including wiretaps, pen registers, etc.) to be initiated immediately while warrants are sought. There is no need to "wait" for FISA approval before initiating surveillance. And FISA courts approve 99.9997368 % of the requests made. If FISA courts wouldn't approve the requests, wouldn't that probably be only in cases of egregious violations of the rights of innocent US citizens given that FISA judges only turned down 5 out of the last 19,000 requests? Is 99.9997368% agreement still too little agreement, and too much oversight, for the president? Apparently so. The document states that the "President has determined that the speed and agility required to to carry out the NSA activities successfully could not have been achieved under FISA." Aside from a clear admission that the NSA activity was not within FISA, this is insane. Again I repeat, 99.9997368% approval of warrant requests, requests can be made after surveillance has already begun, and FISA contains provisions for warrantless wiretaps in certain circumstances. And still FISA was too cumbersome?
The document also repeatedly cites the opinions of Attorneys-General to make its case. FISA is a law passed by Congress, and this attorney general can not overrule it - nor can past attorneys-general.
In short, this document confirms many of our worst fears. This president is convinced he has the authority to do whatever he wants, whenever he wants, regardless of the law, because we are at war.
"Let me be as clear as I can be: President Bush believes if al Qaeda is calling somebody in America, it is in our national security interests to know who they're calling and why," said Deputy White House Chief of Staff Karl Rove, Bush's top political adviser.
Well, let me be as clear as I can be. I agree completely with that statement. It also has absolutely nothing to do with this controversy.
This is not about terrorism, war, or safety. It is much simpler than that. It is about whether are to govern ourselves, or whether we are to be governed by an all-powerful commander in chief. It is inherently dangerous - much more dangerous than anything the terrorists can accomplish.
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I agree that this has domestic implications, but to step back for a second, Im not certain that the answer would be completely clear even if intelligence operations had no domestic compenent whatsover. Of course, FISA as written allows for warrantless searches in such cases, but if Congress chose to regulate such international searches would the President be able to freely ignore such restrictions? There is no precident for that. Some may ask why to raise that issue, but it is a threshold issue prior to even reaching domestic searches which have the added component of the 4th Amendment.
Although FISA as currently written doesnt prohibit warranteless searches involving no domestic contact, but it could. The reason the principal is also important is to address the issue as to whether the President can ignore Congressional law on the treatment of detainees held outside of the United States.
I wont repeat my comment from the prior thread other than to note the when it comes to defending the nation the Constitution has a lot more to say about Legislative power than Executive power. For example:
To make rules for the government and regulation of the land and naval forces;
Insofar as the President claims his authority comes from his powers as Commander in Chief, the argument that Congress has no authority to govern and regulate how the armed forces funcion is a complete Constitutional non-starter, expressly contradicted by the text.
As I noted earlier, its ironic that Bush claims to have a judicial philosophy of strict construction and look for that in his choices in Supremre Court, but in fact shows a predilection towards highly activist views of the Executive Power, reading power not written into the Constitution under a penumbra of the Commander in Chief, while ignoring Congresses authority to regulate and govern, and when necessary discipline the armed forces.
The only think new here is the notion that the 4th amendment is limited to criminal cases. I agree with you, that is clearly not the case. I think it is clear that unreasonable searches for any purpose are unconstitutional. But that does not mean that the purpose of a search does not effect its reasonableness.
I don't think the President or the people around him are engaged in a legal or philosophical debate. They believe the President has the authority to do whatever it is that is within his power to do. This is not a group that is going to be restrained by theoretical legalities. I think they are convinced that neither the congress nor the courts are going to intervene to punish them, at worst they will be told they can't do that any more. And they are likely correct.
It is not at all clear to me that Republican Congressman will buck the WH on this issue. Some of the random comments are heartening but the fact that Senator Specter is planning to hold hearings does not provide any comfort. Anyone remember the 9/11 commission? A complete farce and total stonewalling by the Republican chair.
For Adam and others who fought the good theoretical fight on this issue - the WH has hung you out to dry. It's clear they aren't claiming their acts were lawful according to precedent but rather because they say they are.
I don't think the President or the people around him are engaged in a legal or philosophical debate. They believe the President has the authority to do whatever it is that is within his power to do.
Now compare their arguments now with what the President was saying while this program was still being kept secret for over a year:
Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.
The administration weakly claims that the President wasnt exactly lying because they assert he was only referring to searches under the Patriot Act, but that doesnt really fly since the statement was about all wiretaps and that the Patriot Acts wiretaps were like all wire taps. Semantic defences aside, what happened to valuing the constitution?
Finally is the assertion of what constitutes the Presidents most solemn duty under the Constution. (Further comment here rather than repeat). The President appears to forgotten his oath of office, placing what he personally perceives to be the best way to defend the nation as his primary duty under the Constitution. Trampling the Constitution and the laws in the process.
BTW: Frank, your comment about being no right to have a private conversation with Ossama Bin Laden is almost pure non-sequitor. First, no one has asserted such a specific right. Second, its not necessary to assert such a right to make the argument that the President is failing to uphold his oath of office. Third, I am unaware that any of the calls were to bin laden. Fourth, the President doesnt have the right to ignore the law.
Is this true? Is there a statute that makes it illegal to talk to Bin Laden? Who else is on the list you don't have the right to a private conversation with? Who isn't on that list? Who gets to decide?
There is no doubt that the US government can legally monitor calls with bin Laden and has exercised that authority through FISA. The question here is when, if ever, can the President monitor calls contrary to federal law.
It is a false defense to talk about how effective the program is or talk about how important it is to listen in to the calls. I assume every call was helpful to our fight against terror. I also assume that if it was so important to listen to them the president would be able to do so legally or he must ask that the law be changed. He is placing the fight against terror ABOVE the duty to defend the Constitution. I think we can do both, but if not, we choose the Constitution.
Boldfaced type is nice, but would you kindly explain why foreign intelligence activities cannot involve communications with domestic persons? I've seen that bright-line rule nowhere in the relevant case law.
More importantly, the Supreme Court itself cautioned against such a phony bright-line rule, in Footnote 8 of US v. US District Court. As the Court said, where no foreign parties are involved, domestic communications can't be the focus of warrantless domestic surveillance, but that rule does not on its face extend to mixed foreign-domestic communications.
Various courts of appeals have affirmed the President's inherent foreign-intel surveillance authority, even in cases involving US persons, rejecting your bright line. The Supreme Court rejected your bright line. I'd appreciate your explaining your legal argument to the contrary. In the meantime, a priori assertions and reliance on nontechnical definitions of "foreign intelligence" are novel, but they're certainly not a discussion of law.
JD, if the United States were to monitor electronic communications of al Qaeda via monitoring equipment physically located overseas, but in doing so it were monitoring al Qaeda communications with, among others, Americans, would that not constitute "foreign intelligence surveillance"?
Are you saying that any time someone in the US gets involved with foreign organizations in operations against the United States, that those communications would immediately cease to be matters of "foreign intelligence"?
Yes, FISA sets forth different standards for compliance when the "foreign intelligence information" involves US persons, but that's irrelevant to your point that "foreign" intelligence can't involve domestic persons. On that limited point, FISA -- like the Supreme Court and the Courts of Appeals -- disagrees with your bright-line rule.
So, once more, I have to ask: From where do you get your definition of "foreign intelligence" which, as a matter of law, excludes communications of U.S. persons?
Evaluations of government compliance with FISA is an important legal issue. That discussion simply goes nowhere when people purporting to analyze the merits of legal arguments present unfounded a priori assertions under the guise of legal analysis.
First, I find it odd that you analysis alternates between both literalist and functionalist readings of the Bill of Rights. You say:
But then a like question must be posed to you: The Founding Fathers you cite wrote the Fourth Amendment to protect "persons, houses, papers, and effects" from "searches and seizures." They didn't include "communications." If you want to argue that the Founding Fathers' (alleged) intent to apply the Fourth Amendment to both criminal and intelligence matters because the Fourth Amendment draws no explicit distinction, then your argument fails because the same amendment doesn't protect "communications."
Of course, I'm not arguing that the Fourth Amendment doesn't protect communications -- that question was settled a long time ago. But I'm not the one arguing for a literalist reading of the Fourth Amendment. The Fourth Amendment is a functionalist provision, that requires functionalist analysis, not a priori assertions.
Second, you weirdly assert that "The federal government at the time [of ratification] didn't have any police forces or even any law enforcement responsibilities." That's simply wrong. The federal government had police power over a wide variety of activities, such as interstate commerce and international trade. At the 1787 Constitutional Convention, long before the creation of the bill of rights, they discusses at least four areas of federal criminal law: piracy, crimes against the law of nations, treason, and counterfeiting. Congress passed an extensive Crime Bill in 1790, a year before the Fourth Amendment was ratified.
The primary reason for protection against unreasonable searches and seizures was to protect against overzealous revenue collectors. Indeed, it was this experience with the British in the colonial era -- not searches by British soldiers during the Revolutionary War, as you seem to suggest -- followed up by fear of federal revenue-collection searches leading to State attempts to ban such searches in the mid-1780s, that led to the ratification of the Fourth Amendment.
The history of the Fourth Amendment -- just like the body of law that has grown of it -- is not nearly as simple as you'd like it to be.
First, your repeated attempts to claim that the NSA program falls within FISA because the wiretaps all involved international communications has already been discussed many times. Even the administration is not claiming that the program falls within FISA. The administration is claiming that it was a legal exception to FISA, either because of the AUMF, or because FISA is unconstitutional when it bars the program due to the president's "inherent authority." Please stop with the arguments even the administration isn't making. The calls involved "US persons." That means FISA comes into play. Please read FISA for yourself before you talk about pre-FISA court decisions, especially the legislative notes. US v. US District Court was in 1972, years before FISA.
Next, I never said that that "foreign" intelligence can't involve domestic persons. It can and does. That is why the Foreign Intelligence Surveillance Act was passed - to protect US persons inside the US when foreign intelligence collection is taking place.
I also never said that "foreign intelligence" as a matter of law excludes communications of U.S. persons.
Your claim that my 4th Amendment analysis alternates between both literalist and functionalist readings of the Bill of Rights is mistaken. There is no restriction in the amendment specifying that it applies only to criminal matters - a plain language reading makes it clear it applies to the entire government. Had the founders intended it apply only to criminal matters they would have made it clear, as they did in other amendments (read the 6th, for instance.)
I did say that the federal government didn't have any police forces or even any law enforcement responsibilities at the time the Constitution came into force. I misspoke. It obviously did. I meant to say it didn't have general police power. It still does not. Before you are sure I am wrong and point out the FBI, laws against kidnapping, etc., please get a Constitutional Law textbook and look up the meaning of general police powers. I should have said the government didn't have general police powers, not "law enforcement responsibilities." Of course, the federal government does have police power-type powers as to the District of Columbia, US territories, mlitary bases, and Indian reservations pursuant to the property power. But there is no federal police power, and thus the 4th Amendment when written was never considered to apply only to criminal investigations.
You say that "Congress passed an extensive Crime Bill in 1790, a year before the Fourth Amendment was ratified." I believe you. With respect, it is impossible to have done unConstitutional things before we had a Constitution, and similarly it is impossible to violate the 4th Amendment before it existed. What the law was prior to the 4th Amendment is irrelevant to the discussion.
As for your statement that the primary reason for protection from unreasonable searches and seizures was protection from overzealous revenue collectors, I respectfully disagree. The Fourth Amendment protection against "unreasonable searches and seizures" was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government. So-called "writs of assistance" gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. These searches were performed by soldiers. When the revolution began searches for arms caches, etc. infuriated the colonists even more. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers. Overzealous federal revenue collectors in the 1780s may have been and probably were another good reason for it, but hardly the primary motivation. See Findlaws' history of the 4th Amendment.
With respect, the body of law surrounding the 4th Amendment is not simple, but whether the president has violated the 4th Amendment is, sadly, very simple to determine. He conducted a search without a warrant based on evidence so flimsy he didn't bother to seek a warrant from a court that has a 99.999% approval history. That is an unreasonable search without a warrant, and it is a violation of his solemn duty to protect and defend the Constitution. That he says it was necessary to protect us is simply an example of how he views the People as subordinate, and not sovereign. We don't need "protection" that violates the Constitution.
1. "Next, I never said that that "foreign" intelligence can't involve domestic persons. It can and does. That is why the Foreign Intelligence Surveillance Act was passed - to protect US persons inside the US when foreign intelligence collection is taking place. I also never said that "foreign intelligence" as a matter of law excludes communications of U.S. persons. "
Throughout your analysis, in this and previous posts, you've argued that "foreign intelligence" case law doesn't apply here because we're dealing with domestic persons. In the current post, you said, "This is not about foreign intelligence, it is about our government's actions with respect to US citizens. It is about US." In comments to a previous post, you said, "It is true that the President has authority to gather foriegn intelligence without a warrant. But your point is that he can gather this intelligence within the US, by spying on US persons. How is this "foriegn?"" And on and on. It's been a core argument you've used in purporting to distinguish Truong and other similar cases, even cases that (as I showed) actually did involve US persons.
2. "I misspoke. It obviously did. I meant to say it didn't have general police power."
You're disingenuosly rationalizing away your previous argument. Your new explanation simply doesn't square with your initial point that, "The 4th Amendment was not written merely to control law enforcement officers. When it was written there were no organized police forces in existence. In addition, the Bill of Rights was not considered to apply to the states at the time, but only to limit the powers of the federal government. The federal government at the time didn't have any police forces or even any law enforcement responsibilities." Are you actually saying that you meant to say "general" after each of those "anys"? I think we both know what you meant at the time.
3. "The Fourth Amendment protection against "unreasonable searches and seizures" was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government."
You've changed your argument. Before, you argued that "the 4th Amendment was considered to apply to soldiers conducting searches of suspected enemies of the state - because who else would conduct those searches in 1789 or 1791?" Now you're arguing that the British weren't looking for enemies of the state, but for smugglers. I agree. The Fourth Amendment was drafted to protect people from searches for evidence of violation of revenue laws -- be they colonial or federal. But in both cases the salient point is that the Fourth Amendment was passed to protect people against enforcement of criminal laws, not to protect people from national-security actions. Indeed, the Findlaw article to which you link discusses criminal laws, not "searches of suspected enemies of the state."
Incidentally, I'm pretty sure that your argument implies that the vast majority of federal criminal laws -- e.g., drug trafficking, federal homicide statutes, and the like, -- are unconstitutional. If so, then your position is a LOT more controversial than my position that a literal reading of FISA makes the statute unconstitutional.
4. "With respect, it is impossible to have done unConstitutional things before we had a Constitution, and similarly it is impossible to violate the 4th Amendment before it existed. What the law was prior to the 4th Amendment is irrelevant to the discussion."
This has nothing to do with my point. You said that at the time of the passage of the Fourth Amendment, the Federal Government had no police power. You obviously meant that with respect to the 1787 Constitution's powers, up through the ratification of the Amendment. I responded to that by showing that the 1787 Constitution did grant police powers, and that was evidenced by the 1790 Crime Bill.
5. "Had the founders intended it apply only to criminal matters they would have made it clear, as they did in other amendments."
Fine. If you want to go only by what the Founders wrote, then your argument fails, because the plain text of the Constitution doesn't only covers papers, persons, houses, and effects.
Obviously, the Fourth Amendment isn't taken literally. So don't try to argue that the Fourth Amendment covers foreign intelligence surveillance simply because the Fourth Amendment doesn't exclude it. So stop arguing that the Fourth Amendment applies by looking at a "strict construction" of the text, and let's look at the Framer's intent and the manner in which the amendment has been applied by the Courts through the years on questions of foreign intelligence. You simply don't do that -- you just say, "look at the amendment." You're a literalist when you say, "the Amendment covers foreign surveillance," but a functionalist when you say "the Amendment covers communications." Please pick an interpretation and stick with it, so we can have a real debate.
5. "Please read FISA for yourself before you talk about pre-FISA court decisions, especially the legislative notes. US v. US District Court was in 1972, years before FISA." Again, JD, just as the FISA Court of Review said, case law announcing "inherent" Executive power to conduct warrantless foreign intel surveillance survives FISA precisely because "inherent" Executive powers can't be abridged by statute. You've made the contrary argument repeatedly, and I must admit that I find it bizarre. Even Justice Jackson, no friend of inherent Executive power, said at oral arguments in Youngstown that "inherent" power cannot be abridged by statute.
6. "He conducted a search without a warrant based on evidence so flimsy he didn't bother to seek a warrant from a court that has a 99.999% approval history. That is an unreasonable search without a warrant, and it is a violation of his solemn duty to protect and defend the Constitution."
Even this last point is wrong -- or, at least, not supported by what you've written. You seem to argue that because the search was not supported by a warrant, that it was "an unreasonable search without a warrant." Searches are not unreasonable simply because they don't have a warrant. There are all sorts of unconstitutional warrantless searches in criminal law. A warrantless search can be reasonable, and even if I didn't have all sorts of case law backing me up, I'd still argue on that the actions here were Constitutional if only because they're reasonable given the circumstances.
JD, given your response to my comments, I no longer believe only that you don't know what the relevant law is in this issue. I now also believe that you don't know history (given your initial post on the history of the Fourth Amendment) and that you don't know your own arguments (given your new rationalizations about "foreign intelligence" and "police power" that are simply inconsistent with your past statements. That sort of blissfully ignorant yet schitzophrenic mode of argument is making real debate on these serious legal issues next to impossible. You're doing your readers no service.
I really hope that you are not a lawyer or judge. Only a lay person could be excused such arguments.
Correctly me if I'm wrong, but the following claim is absolutely essential to the claim that the Presidents actions were legal and if wrong, his actions were illegal:
Executive power to conduct warrantless foreign intel surveillance survives FISA precisely because "inherent" Executive powers can't be abridged by statute. You've made the contrary argument repeatedly, and I must admit that I find it bizarre. Even Justice Jackson, no friend of inherent Executive power, said at oral arguments in Youngstown that "inherent" power cannot be abridged by statute.
What I find bizarre, is your apparent complete failure to take into account that whether the President has authority in absence of statutory authority to engage in an action, only addresses half the question. This is why the pre-FISA decisions are not dispositive on the issue presented here: whether the President can ignore statutes passed by Congress within its own authority. The reliance on the Court of Review, if you know it as well as you claim, you should also no is dicta, and caviler sloppily written dicta at that - they simply did not and could not reach the issue since it wasnt before them. The assumption was a non-sequitor. As for Jackson, I'm not sure what oral argument you are referring to, but you should know that the oral statements dont really have much value especially when your point is contradicted by his written opinion.
The DOJs analys and your completely ignore the minus side of the equation. You appear to assume that if the President's power extends to a subject that Congreses power cannot and is automatically "disabled" - this simply isnt supported by the Constituion or any opinions. What you and the President's supporters have failed to do is support the claim that Congress is disabled to act on the subject. To date, I have seen no such text in the Constiution, the Commander in Chief clause includes no such statements. In fact, if you review the constitution it is the legisilature that has the power to pass any laws it deems necessar to govern and regulate the armed forces, and its the Congress that has the power to not only raise a militia to defend the nation, but also discipline it.
Other than dicta from an issue not reached, what decisions do you base the claim that Congress cannot regulate how the President carries out his duties under the Constution? What part of the Constution do you find it in? Is this supposedly in the pneumbra of the Commander in Chief clause or do you have actual text to support the claim that when the President and Congress colide, the Presidents opinion must prevail?
That sort of blissfully ignorant yet schitzophrenic mode of argument is making real debate on these serious legal issues next to impossible. You're doing your readers no service. You appear to be projecting. Your random sniping with multiple comments on issues without making any coherent case on your own, does the readers no service. You appear to be trying to win debating points without actually addressing the real issues.
Prominent Constitutional Scholars from accross the political spectrum make the same point:
ON NSA SPYING: A LETTER TO CONGRESS
By Beth Nolan, Curtis Bradley, David Cole, Geoffrey Stone, Harold Hongju Koh, Kathleen M. Sullivan, Laurence H. Tribe, Martin Lederman, Philip B. Heymann, Richard Epstein, Ronald Dworkin, Walter Dellinger, William S. Sessions, William Van Alstyne
But FISA specifically repealed that provision, FISA § 201(c), 92 Stat. 1797, and replaced it with language dictating that FISA and the criminal code are the "exclusive means" of conducting electronic surveillance. In doing so, Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). This analysis, Congress noted, was "supported by two successive Attorneys General." Id.
To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. As Justice Jackson famously explained in his influential opinion in Youngstown Sheet &Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power [is] most vulnerable to attack and in the least favorable of all constitutional postures." Id. at 640.
Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance.[7] FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights. (For example, although FISA generally requires judicial approval for electronic surveillance of persons within the United States, it permits the executive branch to install a wiretap immediately so long as it obtains judicial approval within seventy-two hours. 50 U.S.C. § 1805(f).)
Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA.[8] The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition on torture,[9] and, more broadly still, that statutes may not "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response."[10] But the administration withdrew the August 2002 torture memo after it was disclosed, and for good reason the DOJ does not advance these extreme arguments here. Absent a serious question about FISA's constitutionality, there is no reason even to consider construing the AUMF to have implicitly overturned the carefully designed regulatory regime that FISA establishes. See, e.g., Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable only if the constitutional question to be avoided is a serious one, "not to eliminate all possible contentions that the statute might be unconstitutional") (emphasis in original; citation omitted).[11]
Footnote 11 included (others available at the link)
[11] Three years ago, the FISA Court of Review suggested in dictum that Congress cannot "encroach on the President's constitutional power" to conduct foreign intelligence surveillance. In re Sealed Case No. 02-001, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (per curiam). The FISA Court of Review, however, did not hold that FISA was unconstitutional, nor has any other court suggested that FISA's modest regulations constitute an impermissible encroachment on presidential authority. The FISA Court of Review relied upon United States v. Truong Dihn Hung, 629 F.2d 908 (4th Cir. 1980)—but that court did not suggest that the President's powers were beyond congressional control. To the contrary, the Truong court indicated that FISA's restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President") (emphasis added).
No, as I've said before, and like the FIS Court of Review notes, if power is "inherent" then it simply cannot be abridged by statute. This is the Bush Administration's position, the Carter Administration's position, the Clinton Administration, and, I think, the correct position.
Incidentally, may I point out that while you criticize me for citing dicta, you yourself quote at length a concurring opinion signed by only one justice?
Your interpretation of Jackson is wrong, by the way, because the passage you cite refers not to inherent powers but to the president's independent powers -- namely, his powers specifically assigned to him by the Constitution, such as the commander in chief power, which are committed to him alone, which must be compared to the Congress's independent powers, such as the power to raise, support, maintain, and regulate the armed forces.
When it comes to inherent powers, as discussed at oral arguments and in his opinion, Jackson's position is clear: (1) He didn't believe in "inherent powers" aside from the ones specifically enumerated, and (2) If "inherent powers" exist, they could not be abridged by statute. The oral arguments to which I referred, incidentally, where the arguments in Youngstown. And he wasn't speaking in hypothetical questions; rather, he was speaking in the present indicative.
"A warrantless search can be reasonable, and even if I didn't have all sorts of case law backing me up, I'd still argue on that the actions here were Constitutional if only because they're reasonable given the circumstances."
In other words, what I was saying was that even if you strip away all of the case law demonstrating that the searches at issue were not constitutionally permissable, you'd still have to look to reasonableness. The lack of a warrant is not the end of the issue. Just like "plain view," "hot pursuit," "plain feel," border searches, checkpoint stops, and other constitutionally sound warrantless searches, they boil down to reasonableness.
My own position is pretty straightforward:
1. The President has inherent authority to engage in this surveillance without the need of securing a warrant.
A. The President has inherent authority to engage in this activity. This was recognized in such cases as Truong, US v. Brown, US v. Buck, US v. Butenko, In re Sealed Case.
i. The President's inherent authority cannot be abridged by statute, as recognized by the Carter, Clinton, and Bush II administrations. See, e.g., Butenko &In re Sealed Case.
ii. This inherent authority is contained in the grant of power to the President to have Executive Power, and to be Commander-in-Chief of the armed forces.
2. Inherent authority aside, the text of the AUMF gave the President authority to "use all necessary and appropriate force against those ... organizations ... he determines ... planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Therefore, he was able to carry out the acts necessary to monitor such organizations, even where it involved US persons, under statutory authority triggering the waiver of the warrant requirements of FISA.
Where is that mythical "waiver" ? It's not in the text of
the AUMF. The claim appears to be a big surprise to everyone
who was involved in the Congressional debate. And nobody
ever imagined it existed until oops! several people in NSA
were so worried they blew the whistle and we caught Bush
with his hand in the cookie jar. If this argument wasn't
completely pathetic, why didn't the administration think to
mention it to anyone before they were caught ? It isn't
an argument, it's an excuse: and a damn feeble one.
And that just deals wth the question of FISA. Even if
you think FISA had been "waived", there's still the 4th
amendment, and from what we've heard it seems extremely
likely that this program spied on thousands of US citizens
who had no direct or plausible connection to terrorism.
Worst. Administration. Ever.
No, the federal government does not have police powers. When you realize why that is correct you will be on the right track to understanding why the NSA program is so out of line. I say again, the federal government has no police powers - not in 1789, and not today.
Please ask any lawyer friends (ANY) that you have if I am correct before concluding I am crazy for saying the federal government does not have police power (D.C., territories, Indian reservations, and military posts being a de facto (but not de jure) exception).
As for your last post, that inherent authority from implied language trumps specific, explicit Constitutional language and statutory language to the contrary, with respect, nope. No way.
As to your statement that I am all over the place, and that I contradicted myself, again, no. You say
Yep. All true, and not contradictory at all. The violation of the law is not from wiretapping Al Queda, but from wiretapping US persons. The caselaw you cite is pre-FISA or not on point at all.
Your position in your last post is pretty straightforward. You think the commander-in-chief/executive authority trumps the power of Congress and the 4th Amendment. This is clearly wrong, and is why this president is risking impeachment - because if you are right we have an elected dictator that the other branches can not check. Your other argument is that the AUMF authorized the program. That is obviously wrong and has been fully addressed in other posts and by the other white papers. I won't rehash it here because we are talking in circles. We simply will have to agree to disagree.
As I think we all know, the president's rights are delegated to him by the people of the United States through the Constitution. Without the Constitution, he's nothing. Zip. Nada. He's got a lot of rights, per the Constitution. Most powerful man in the world.
Adam and others are absolutely correct in noting that Congress can't pass any law that might constrain the president's constitutionally-granted authority. But what the president doesn't have—and can't have—is an "inherent" right to contravene any other provision of the Constitution. We don't have a hierarchy of importance in our Constitution, i.e., Article 2 is somehow more important than Article 1, or more important than the Fourth Amendment. The Constitution is a whole. It is what it is.
More on "inherent" authority. Americans have the inherent authority (I'm using "authority," rather than "right" for a reason) to be secure from unreasonable searches, etc., etc. No constitutional actor, regardless of his authority under other constitutional provisions, is allowed to violate this. The Constitute is a whole. No one article can trump another.
Royalists such as Adam get all hung up on this "inherent" powers argument, but they focus only on the section of the Constitution addressing the president. They really want their president to be their daddy, to protect them. But that's not our history. We weren't formed as a nation, thinking that we would somehow find a man who'd magically take care of all of our ills, but would somehow also not desire dictatorial powers. We were formed to be free persons and to do it ourselves. We agreed to delegate certain of OUR authority to federal employees—the president being one of them—but to always govern ourselves. One of the predicates to this was the compact with the government we formed that the government would not violate our rights or infringe on our authority.
You lawyers get all twisted around the axle. FISA isn't the issue. It doesn't matter. Its provisions dealing with foreigners are likely unconstitutional in and of themselves, as several learned folks have observed. It's very unclear to me—someone who's actually done the field work—how a statute can somehow trump the Constitution. See, Adam, this is where I come around to you. I do believe the president—and by definition, his executive branch—can conduct surveillance of foreign nationals without seeking permission from Congress or the courts. They are all about protecting Americans, not everybody else in the world. I don't want them protecting everybody else; I want them focusing on us. I'm very parochial in that regard.
The Fourth Amendment is the issue. Adam, you're not going to make a case to people like me—ever—that your king, sorry, president, has any "inherent authority" to bug me. I've got the Fourth Amendment. And I don't have to prove to you or anyone else that I'm a good guy. You, on the other hand, have to prove that I'm a bad guy, but you have to play by the rules. I don't. Terrible system, eh? Just like the guy, Frank, up thread, who thinks it's against the law to talk to Bin Laden. No, it isn't.
So what you've got to do is just get a warrant. You want warrantless? Target the foreign phone number, not the US number. No problem. If the conversation results in anything other than best wishes, happy birthday, etc., etc., get a warrant to got after the US person. Then you can target the US phone number. FISA accomodates this. Probable cause: known terrorist, etc., etc. If it's just Uncle Abdul wishing his niece a happy birthday, then you might have to be innovative in constructing your warrant. Maybe you won't get it.
Adam, you can get warrants. It ain't hard. Why don't you want to? Why do you want to listen to my phone conversations?
Oh my. I've said it before, I'll say it again:
It is a fundamental breach of military discipline to either issue or obey and unlawful order. The operations of the US Army have been governed by STATUTE since before we declared independence, and the power to command military operations is in no way, shape or form entails any authority to violate the law absent *military necessity* -- and note well that this is term which has an exact meaning that is NOT "whatever you happen to think is a ghood idea".
As for the "Executive Power," what is that besides the *duty* to "see that the LAWS be *faithfully executed*?
Your sophistry betrays you Adam. This is really quite simple: we don't do dictators, and the questions I have for you is equally simple --
Tell me just exactly what you think Mr. Bush does not have the "inherent authority" to do, *why not*, and how that is any different from this uttery dishonest BS?
Good luck.
First, I agree with Charly's post. AND - it was well done, without any name-calling or harsh invective. He laid out the FACTS, and he is right.
It really makes me proud to see in the words of RetArmyGuy that the American Revolution is alive and well. Self-government lives. RetArmyGuy, I am honored to have served in George Washington's Army with you. We bore arms in service to the idea that the People are and should be sovereign. We swore to protect and defend the Constitution of the United States. Obviously RetArmyGuy is still living that oath. Sir, your argument is one I tried to make but you made it with more eloquence than I ever could. Thank you. With revolutionaries like you we stand a chance at taking self-government into an unprecedented fourth century - something that has never been done before.
If we allow Mr. Bush to get away with this disregard for the rule of law it will be a step away from our revolutionary ideals. It will be a step toward the usual state of human societies throughout history - tyranny.
Washington's Army left bloody footprints in the snow rather than give up on the idea of self-government, even in the dark days before Trenton when it seemed the cause was lost. Most of us today can't be bothered to write our congressman and many think it "ok" for Bush to violate the 4th Amendment and the law because they are afraid of terrorists.
All of us should ask ourselves: What have we done for our country lately? If we lose our republic and become an empire we have only ourselves to blame.
The Romans cheered Julius Caesar as he ended their republic and became a dictator. They cheered because he promised order and safety. Self-government ended and the Roman Empire began. The world would not see another nation where the people were sovereign until Washington and his men left those bloody footprints in the snow, millenia after Caesar crossed the Rubicon at the head of his army and made citizens into subjects.
Are we really going to lose our republic because of 19 religious extremists with box-cutters? Are we that craven?
I'm not, and I am sure neither is RetArmyGuy. Long live the Revolution! Vox populi et Deus.
This is the Bush Administration's position, the Carter Administration's position, the Clinton Administration, and, I think, the correct position.
One out of three is bad. Once again you have no proof for your assertion. Try documenting your claim, it would carry a lot more weight than your mere opinion. If you want opinion, the position of the Bush adminstration today was not the postion of Ford, or Carter, or Reagan, or George H.W. Bush or Clinton. You once again badly confuse the existence of inherent authority with exclusive authority.
Your interpretation of Jackson is wrong, by the way, because the passage you cite refers not to inherent powers but to the president's independent powers -- namely, his powers specifically assigned to him by the Constitution, such as the commander in chief power, which are committed to him alone, which must be compared to the Congress's independent powers, such as the power to raise, support, maintain, and regulate the armed forces.
So in your opinion the powers specifically assigned the President are subject to abridgement, but those that are not are excusive and unabridgeable? How do you define these inherent powers if not specifically assigned to him? Do judges just make it up? Perhaps you could quote Jackson where he makes this distinction, or did you just make it up yourself? You then claim to explain Jackson: "He didn't believe in "inherent powers" aside from the ones specifically enumerated." By your argument if they are specifically assigned they are abridgeable but if they are specifically enumerated they are not? So whats the difference, and where is the power to egage in warrantless searchs "specifically enumerated" and what is the bais for the claim that these powers would be lessened if actually assigned?
So far you claim that various authorties support your position, that inherrent powers are exclusive to the President but have provided zero cases where the holding of the court addressed the issue. For example Truong held the opposite yet you continue to cite it: To the contrary, the Truong court indicated that FISA's restrictions were constitutional. 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President") (emphasis added). By your interpretation and Bush's any imposition beyond the minimum would be solely up to the President which is not the courts position.
Incidentally, may I point out that while you criticize me for citing dicta, you yourself quote at length a concurring opinion signed by only one justice?
Do you really wish to stand by this point or are you willing to admit that under these circumstances its empty and disingenous?
First, I was responding to your comment in which you raised the oral argument of that "one justice". The oral argument you continue to rely up in this comment. I stand by my assertion that his written opinion has far more weight than anything in oral argument.
Second, that "one opinion" has been often cited in full opinion since and has been widely recognized as influential. Are you suggesting it isnt, or did you forget?
Third, why is it that you continue to refer so much to his oral argument as proof, when you know it has no precidential value and you have yet to quote any portion leaving your interpretation as dubious as it is without precidential value.
Fourth, one opinion has more weight than the dicta you have cited especialy since it was an off the cuff remark, neither addressed by the court or necessary to reach the holding and itself was merely an assumption.
> engage in this surveillance without the
> need of securing a warrant.
Would the people who hold this view _please_ give me 3 examples of things the President /cannot/ do under this authority? Specifically, can the President (1) issue Bills of Attainder (2) wiretap, harass, jail, and/or torture (a) his political opponents (e.g. the Kerry Campaign) (b) his critics?
If not, why not?
If so, what type of government is that?
Cranky
You lawyers get all twisted around the axle. FISA isn't the issue. It doesn't matter. Its provisions dealing with foreigners are likely unconstitutional in and of themselves, as several learned folks have observed. It's very unclear to me—someone who's actually done the field work—how a statute can somehow trump the Constitution.
I flatly disagree with your assesment, who are these "learned folks" you think believe this. Here are 14 of the most learned folks on the Constitution who say otherwise and that FISA is very much the issue.
It's very unclear to me—someone who's actually done the field work—how a statute can somehow trump the Constitution. Its unclear to me how you come to the conclusion that anyone is saying this. No one is saying that statutes trump the constitution, but merely pointing that the Constitution grants the legisilature the power to govern and regulate the armed forces and to pass any necessary laws to ensure this, and that the President is bound by the Constitution to faithfully execute them. FISA doesnt trump constitution, in fact, every court every addressing the issue has found FISA Constitutional. The point is that there is no provision under the Constituion that says the Presidents Commander in Chief power is exclusive and that it can trump laws passed pursuant to the Constitution.
Frank, you say the FBI investigates single state bank robberies all the time. Yes it does - but not because of the police power, which the federal government does not have. Only states have police power. The feds investigate bank robberies because of the power arising out of the interstate commerce clause. All banks are federally regulated, and hence the FBI can investigate a bank robbery - but not the grocery store robbery next door to that bank. Watch some cop shows carefully and you will see that the feds "come in" only after certain things occur, such as the bad guys crossing state lines, mail fraud, etc. The reason they need these "prerequisites" before getting involved is because the federal government has no police power and must have another source of power before getting involved - such as the power to regulate interstate commerce. That is why feds investigate counterfeiting (only the federal government can mint money) but not ordinary fraud (which belongs to the states). The point in all this is that our federal government is a limited government and is forbidden (by the People) from doing certain things.
No, he didn't. At least not if you are referring to the specific citation you have made in the past from the oral arguments in teh Youngstown case His comment was clearly directed at the specifics of the case at hand, not a general comment on all cases involving inherent authority.
And his written opinion, which was not adopted by the majority of the court, makes it clear he recognizes the existance of inherent authority that the president can exercise absent congressional action that does not give him authority in the face of congressional action to the contrary.
I think if you watch cop shows carefully you will notice that, like all TV programs, they are only fleetingly grounded in reality. If it suited the story, FBI agents would be investigating overtime parking.
No. In fact Santa Claus is quite real. Millions of children receive presents from him every year and you can go to almost any major mall and find him there during the Christmas season.
TV's lack of grounding in reality is of an entirely different order. It trains people to make the willing suspension of disbelief the norm. We even use what we have seen on TV as authority - just as you did here.
I say it again for the diehards - the federal goverment has no police power. That does not mean that there aren't FBI agents, or federal crimes, or federal courts, or federal prisons. It means that the only crimes that can be made a "federal issue" are those which derive from some enumerated power in the Constitution. States don't have that extra hurdle to overcome.
California could ban water balloons if a majority of the California legislature passed a law. If you use them anyway California could then arrest, prosecute, sentence, and imprison you. The federal government could not do the same thing. Why? Because the federal government must have another reason for criminalizing behavior besides "Congress said so." The federal law must have some connection to an enumerated power in the Constitution. It is an example of how the federal government has more limits placed upon it than the states. That is how our system was set up by the People.
If president Bush orders criminal arrests of water ballon users he would have exceeded his authority, but of course some would point to the danger of water balloons as a good reason to ignore the Constitution. Those who object to his illegal orders would be painted as "water balloon lovers" and would be accused of not understanding the nature of the threat water balloons represent. When they pointed out that all 50 states already make water balloons illegal, so there is no need for the president to violate the law, many would say "as long as the water balloon users are caught I don't care what the president has to do." The president would hold press conferences that didn't address his illegal orders - instead he would repeat meaningless statements like "I will do whatever is needed to protect Americans from the threat of water balloons." Many would cheer, not realizing that the Constitution also protects the People from federal government tyranny by placing limits on the federal government. And if the president got away with it, then the federal government suddenly would have police powers despite the Constitution, and the power of federal government would grow at the expense of the people. And many citizens would not even know the president had violated the law and would think any that complained were just hippie liberals who either don't understand the dangerous nature of water balloons, or who actively support water balloon users.
Crazy example? Well, one of the main justifications for the warrantless NSA wiretaps (that needlessly violated the law put in place to check federal government spying on US persons without a warrant - a law put in place to ensure the 4th Amendment isn't violated) is that it stopped a plot to cut the Brooklyn Bridge in half - with a welding torch.
Man, you just can't make stuff like THAT up even if you tried.
Our republic won't fail because we are invaded and defeated. Naaah, we will end up just giving it away. All this political stuff is boring anyway, who needs it? Let just one guy decide everything and we will be strong, right? After all, democracy and rights and all that liberal hogwash just weaken us and give our enemies opportunities to attack us (ignoring the fact that we became the most powerful nation the world has ever seen precisely because of those pesky rights and that bothersome Constitution.)
Point taken. I didn't express myself very well. I'm just tired of watching lawyers twist what really is a straightforward issue into something that most Americans seem to have a hard following. Not that that's ever happened before. Of course, FISA is AN issue, but it's not the big banana. And, yes, I understand that FISA is an enabler to control enforcement of a constitutional provision. But it's really all about the U.S. Constitution. There would be no FISA were it not for that document. And if the president were to take a fall, the articles of impeachment would cite violation of his constitutional duties. This is really a political issue; I plead guilty to trying to follow the KISS principle. Mr. Bush will not be in a courtroom.
WRT the constitutionality of FISA, I understand where the legal scholars are coming from. I have no problem with FISA. For people in the so-called national security community, what FISA did was provide a one-stop shopping venue to get necessary judicial blessing from judges who had appropriate security clearances and had the know-how to sort through some very arcane issues. It's no accident that a best-selling book about the counterintelligence business published some years ago was entitled "Wilderness of Mirrors." FISA is a plus for everybody concerned. The good guys can deal with judges who speak their language; the bad guys—or putative bad guys—can at least know that the judge knew what was going on.
Intimations of shaky constitutional standing for FISA come from lawyers who actually work in the business, not legal scholars, and the concern stems from any congressional attempt to regulate the "inherent powers" (here we go again) of the president, i.e., Article 2. Just can't happen. Dealings with foreigners belong to the executive branch. Thus any statute that gets into that area may be questionable. See the War Powers Act.
Sloppy analysis, poorly written laws and (choose one or more) the relative lack of sophistication, lack of education, irrational fear or lack of concern about "the other guy" on the part of the American public is where the problems come in. The president and his proxies such as Adam W are cleverly trying to extrapolate from the plenary Article 2 powers by binding foreign devils (bad guys) so closely to US persons (good guys) deserving of Constitutional protections that we view the disparate parts as a whole. It's a scam, a sales job. And it's working.
I watch my wife's eyes glaze over as yet another legal beagle on Nightline drones on about oh, how horrible all of this is. I watch Leahy, Kennedy, Biden, Pelosi, you name 'em, crapping on themselves trying—and not very hard—to make these issues comprehensible to the average American. 100 IQ is the standard, remember? Average. Do you think all of that FISA lawyer stuff matters to Joe Citizen? The issue is violation of the US Constitution. Founding Fathers, yada yada, yada. We don't even hear about Nixon. Jeez, hang Tricky Dick on Bush. They're the same guy. Eye on the doughnut, not the hole.
As a side note, and speaking of cop shows, as a couple of you did upthread, today I was at my daughter's place watching two pretty boring football games. During that Carolina-Seattle mismatch on Fox, a promo for this program "24" came on. I've never seen it. But I know it's all about the fearless G-man supporting truth, justice and the American way by basically killing bad guys and violating the rights of those he doesn't kill. Conspiracy theory arose. The daughter and I started speculating: here is the Bush network, Fox, highlighting a program depicting any action, no matter how egregious, against a suspected terrorist as being fine and dandy. Hmmm. What do programs such as this do to affect public opinion WRT arcane issues such as this NSA situation?
BTW, JD, thanks for the support. Didn't deserve it.
And for Adam W: I note that Cranky has once again asked supporters of your view to give examples of what "inherent powers" the president DOESN'T have. Cranky posed that question to you sometime ago on another thread. You haven't answered.
While we agree on several issues its far from an alleged violent agreement:
Intimations of shaky constitutional standing for FISA come from lawyers who actually work in the business, not legal scholars, and the concern stems from any congressional attempt to regulate the "inherent powers" (here we go again) of the president, i.e., Article 2.
First, the letter I linked to included Constitutional scholars and those who "actually worked in the business." Second, I emphasised scholars in reply to "learned folk".
Third, who are these folks in the business?
Just can't happen. Dealings with foreigners belong to the executive branch. This point is where we most clearly disagree. What is the Constitutional basis for this claim? There simply is no part of the Constitution that says foreingners belong to the excutive and cannot be regulated by Congress. There is no text in the Constitution that disables regulations by the Congress so long as they are pursuant to the Constution. The Framers could have written a provision that Congress shall make no law infringing on the Power of the President to deal with foreigners, but it did not. If you accept your principle as stated, that "they belong to the executive branch," then that would appear to include the torture of prisoners? Do you believe the President can torture foreign prisoners and Congress has nothing to say about it? Furthemore, it leaves the nations policy dependent on the whims of men and not laws changing from President to President.
Ultimately there are two main Constitutional issues.
First, does the President's actions violate the 4th Amendment (As I stated in the first post of the thread, this only applies to domestic).
Second, does the President's actions violate his duty and oath of office to faithfully excute the Laws of the land?
This has at least two components.
(1) Did he fail to abide by the requirements of FISA? (Do you think all of that FISA lawyer stuff matters to Joe Citizen? The issue is violation of the US Constitution. I personally think the issue of the President violating his oath of office very much matters to Joe Citizen. Failing to abide by FISA IS a violation of the US Constitution) If you want to make it more concrete such pundits should include but have largely failed to include: that Bush ordered actions that the Congress expressly prohibited and that each criminal violation has a maximum violation of 5 years. The president has order hundreds or thousands of such violations.
(2) The second violation is the Presidents failure to faithfully execute the law which requires that the 'congressional intelligence committees be kept fully and currently informed of all intelligence activities,'other than those involving covert actions." Fully described here. Now why should the average Joe care about this? The problem here is unnecessary secrecy and disableing both the Congress and the Judicial Branches from keeping the Executive honest. Such secrecy leaves the President completely at his will, leaving us a nation of men and not laws. Furthermore, even if you buy the argument that President's power is exclusive that does not disable the Congresses right to be informed of what the President is up to.
I suspect most Americans don't care whether the President violated the law or the constitution if he did it to protect them. The theoretical danger of losing our liberty is not nearly as threatening as the real danger from bin Laden and company.
See above. The real danger from bin Laden and company is pretty minimal. But people's perception of danger is almost entirely determined by what they see on TV.
That's the same reason people think it isn't safe to let their kids walk to school because they might be adbucted by a stranger. Even though kids are far more likely to be killed in a car crash while they are being driven to school. There are plenty of studies that show fear of crime tracks the level of crime on TV, but has nothing to do with the actual crime rate.
Just to keep things in perspective. There is someone out there who sent weapons-grade anthrax through the mail to the Democratic leadership in the Senate. They killed several people along the way. The anthrax terrorists are still out there and probably still have anthrzx or the capability to produce it again. And they aren't in Afghanistan or Iraq. But since there are no stories about it any more, no one is particularly worried. They might pay attention to the occasional talcum powder incident but basically those are just blips in the days news. If its not on TV it didn't happen. And if it is, it doesn't matter if it did.
We are ruled by our emotions and our emotions are ruled by TV.
End of my mostly off-topic, anti-TV diatribe.
Well, let me be as clear as I can be. I agree completely with that statement. It also has absolutely nothing to do with this controversy.
Of course it's not associated, but they're trying to play a cheap rhetorical trick in the hopes that most American Citizens are too ignorant, busy, or easily swayed by emotional appeals over real facts.
In other words, they hope the majority of people are too dumb to get the facts. They figure slogans like our current resident sloganeer, Frank, will score more points than actually talking about the truth.
A prime example by a sloganner who's unconcerned with the reality of the issue "American citizenship doesn't give you the right to have a private conversation with Bin Laden."
Frank: This is at best, a non sequitur. At worse, you're creating a poorly constructed straw man in order to make it seem like your opponents are arguing in favor of a right to a private conversation with Bin Ladin.
Not that I expect you're capable of it, but if there's a chance, I'd like you to apologize for insulting the character and the good sense of the people running this blog by insinuating that, by disagreeing with the President on domestic wiretapping without a warrant.
by disagreeing with the President on domestic wiretapping without a warrant, they assert the right to a priavate phone call with Bin Ladin,
Besides, who needs philosophy when you've got the news? I just came across the defense of the NSA collection program by LTG Hayden, the former NSA Director and now Deputy Director, National Intelligence. Hayden helps the administration out by acknowledging that rather than this being a whiz-bang, super-secret new technology effort, we're really just talking about old-fashioned wiretapping. He also notes that the wiretaps were done when NSA had a "reasonable basis to believe" that the US person involved had a connection with terrorists. According to the analysis I saw, Hayden demonstrates his knowledge of the 4th Amendment by helpfully observing that this "reasonable basis" was sufficient, even though, as he noted, it did not meet the FISA "probable cause" test. He did not address the relationship between FISA and the 4th Amendment.
As JD noted above, you can't make this stuff up.
Everything you just said is true, and absolutely irrelevant. Well, except maybe for the "hardly busting someone's house down" part. But it's still irrelevant.
Unless you are saying that in time of war the president can ignore law and constitution, that is. Because if so you're wrong. I swore an oath to protect and defend the Constitution of the United States. Not an oath of fealty to a person or an office, but rather an oath of support and allegience to an ideal embodied in law.
Osama binLaden said that we are engaged in a war of cultures, and that he wants to destroy ours. A cornerstone of our culture is the Constitution and the principles embodied within them. By ignoring that the president leaves at best a hollow shell, a mockery of the cornerstone. He helps the enemy win. Pyhrric victories are not victories at all - if you had to destroy the village to save it, you did not save it.
The president had authority and responsibility to loo