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Warrantless Wiretaps: Inherent presidential power v. legislative power
Posted by: McQ on Saturday, February 11, 2006

Speaking of warrantless wiretaps:
But in 1977, Mr. Carter and his attorney general, Griffin B. Bell, authorized warrantless electronic surveillance used in the conviction of two men for spying on behalf of Vietnam.

The men, Truong Dinh Hung and Ronald Louis Humphrey, challenged their espionage convictions to the U.S. Court of Appeals for the 4th Circuit, which unanimously ruled that the warrantless searches did not violate the men's rights.

In its opinion, the court said the executive branch has the "inherent authority" to wiretap enemies such as terror plotters and is excused from obtaining warrants when surveillance is "conducted 'primarily' for foreign intelligence reasons."

That description, some Republicans say, perfectly fits the Bush administration's program to monitor calls from terror-linked people to the U.S.
Now, before everyone who supports the use of warrantless wiretaps to monitor international terrorists start slapping each other on the back and shouting "huzzah", two things need to be made clear:
The Truong case, however, involved surveillance that began in 1977, before the enactment of the Foreign Intelligence Surveillance Act (FISA), which established a secret court for granting foreign intelligence warrants.
Carter's use was pre-FISA. But the second thing to note is the court's finding in the Troung case, i.e. that when the surveillance is "conducted 'primarily' for foreign intelligence reasons", it falls under the "inherent powers" of the executive branch.

To me, that is the crux of the argument. What are those inherent powers? Have they ever been defined or listed? Doesn't the definition of "inherent" assume that other bodies can't infringe upon them, i.e. can FISA's requirement supercede them, or can, as claimed, can that only be done through an Constitutional amendment to trim the powers of the executive?

So, recapping the arguments, on the one side:
Democrats and some Republicans in Congress say FISA guidelines, approved in 1978 when Mr. Carter was president, are the only way the president may conduct surveillance on U.S. soil.
And on the other:
Administration officials say the president has constitutional authority to conduct surveillance without warrants in the name of national security. The only way Congress could legitimately curtail that authority, they argue, is through an amendment to the Constitution.
All the rest is so much rhetorical smoke.

Interestingly:
The administration's view has been shared by previous Democrat administrations, including Mr. Carter's.

When Mr. Bell testified in favor of FISA, he told Congress that while the measure doesn't explicitly acknowledge the "inherent power of the president to conduct electronic surveillance," it "does not take away the power of the president under the Constitution."

Jamie S. Gorelick, deputy attorney general in the Clinton administration, agreed. In 1994 testimony before the House Permanent Select Committee on Intelligence, Miss Gorelick said case law supports the presidential authority to conduct warrantless searches and electronic surveillance for foreign intelligence purposes.
Inherent executive power v. Congressional legislative power. That's the argument. Of course the fact that his AG argued in favor of the inherent power of the president to conduct electronic surveillance without a warrant when it concerns foreign Intelligence purposes seems to have slipped Carter's mind:
"Under the Bush administration, there's been a disgraceful and illegal decision — we're not going to the let the judges or the Congress or anyone else know that we're spying on the American people," Mr. Carter said Monday in Nevada when his son Jack announced his Senate campaign.

"And no one knows how many innocent Americans have had their privacy violated under this secret act," he said.
Amazing.

Many believe that this would go against the administration if it goes to court. I'm not so sure, but then, I don't claim any expertice in this. I think there are valid arguments on both sides of a very murky bit of consitutional law. But if the 4th Circuit's finding is any indication, I wouldn't bet my house on the outcome being the basis to impeach Bush if I were a BDS sufferer and had elevated my hope to that level.
 
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Nor would I.
Mind you, this is not a simple case of support of president bush as some would cast it. Rather, this is a case of allowing the commander in chief to do his job. I daresay that were Bill Clinton doing that same job, as he should have been, New York (twice) Washington and Pennsylvania would never occurred.

I suggest yet again, that FISA was an attempt on the part of the Democrats to secure additional liberty. If you will, additional protection from the government. Well intentioned. See law of unintended consequences. See also, road to hell, paving list.

All this aside from the question of whether not FISA itself is even constitutional in its attempt to place limits on the constitutional authority of the president.

And perhaps, the question had better be asked, "if someone other than George Bush were in the White House, would this even be under discussion?"

 
Written By: Bithead
URL: http://bitheads.blogspot.com
The Truong case and the reasoning behind it, are why Orin Kerr does not believe that Bush’s warrantless surveillance program violates the 4th Am. However, the passage of FISA (subsequent to Carter’s spying on Truong) combined with Justice Jackson’s opinion in the Youngstown case, are why Kerr and so many other lawyers, myself included, are certain the SCOTUS would rule against Bush and hold that his program violates the law.
 
Written By: Mona
URL: http://
And perhaps, the question had better be asked, "if someone other than George Bush were in the White House, would this even be under discussion?"

Yes, but if it were a Democrat, the configuration of support and opposition would be different. My position would be the same in either case, but Powerline, Hewitt & etc. would be madly screaming that the Democrat Prez is violating the law and should be impeached; their civil libertarianism would then be boundless.
 
Written By: Mona
URL: http://
Gee, that’s funny; I wasn’t under Clinton.
Nor, under any other democratic president since FDR, all of whom exercise those same rights.

Try again.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
However, the passage of FISA (subsequent to Carter’s spying on Truong) combined with Justice Jackson’s opinion in the Youngstown case, are why Kerr and so many other lawyers, myself included, are certain the SCOTUS would rule against Bush and hold that his program violates the law.
But my question remains how the concept of "inherent powers" is defined, what it includes and whether FISA is an acceptable modification of those powers or that, of necessity, they can only be modified via constitutional amendment.

Now, admittedly, I haven’t read the law or consitituional arguments in any depth at all, but I still can’t logically see FISA as an acceptable way to modify "inherent powers" which have been granted by the Constitution.

While I realize the "Constitution says what the Supreme Court says it says", I’m still not sure they’d indeed find as you and Kerr think they would. While it’s entirely possible that SCOTUS might find that the administration has violated FISA, my question seems to go beyond that ... is FISA a constitutional restraint on the inherent power of the executive?

What key point (or points) have led you to come to your belief that it may be? Layman’s terms, please.
 
Written By: McQ
URL: http://www.qando.net/
Bithead, FISA didn’t exist under FDR (indeed, the Supreme Court had at the time held that warrants are not necessary ever for telephone taps, and they did not overrule themselves until I believe the 60s), and to the extent it bound Clinton, he abided by that law. When FISA was amended in the 90s to require warrants for physical searches, Clinton switched and began obtaining FISA warrants. When folks previously have invoked Clinton as you are doing here, Jamie Gorelick made it clear in a letter to Congress — that was entered into the record during the Gonzalez hearings — that she and her boss obeyed FISA, and she is right.

It’s all about FISA and controlling authority in the Youngstown case.
 
Written By: Mona
URL: http://
McQ: Let me quote from Glenn Greenwald:
Whenever Bush defenders cite that line of pre-FISA cases which held that the President has inherent authority to engage in warrantless eavesdropping for purposes of foreign intelligence, they frequently imply, and often outright state, that this means that the President can engage in such activities even in the face of a Congressional statute making it a crime to do so. But as Gonzales made clear, to say that the President has the inherent authority to do X does not mean that Congress is without power to limit or regulate X. That is the whole point of Youngstown – that the President cannot exercise even authority he possesses in the face of a Congressional statute where Congress also has authority in that area
.

Now, can Congress also have authority in an area if the President has "inherent authority" in the same sphere? Does Gonzalez himself even say Congress can, as Greenwald states? Greenwald quotes Gonzalez in the matter, and it would seem even the AG concedes the point:
GONZALES: Well, the fact that the president, again, may have inherent authority doesn’t mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.

And so if we’re talking about competing constitutional interests, that’s when you get into, sort of, the third part of the Jackson analysis.
And when you are in a Jackson Category III analysis — that is, when Congress has passed a law in an area in which it entitled to be — the President’s authority to act in a contrary fashion is at a very low ebb. Not extinguished, but as nearly so as can be imagined. Thus, as my former (conservative) Con Law prof has opined, Jackson III likely would have permitted Presidential violation of FISA in an exigent situation like the immediate months after 9/11, when there was no time to ponder how to draft and then pass whatever accommodations Bush might need. But not indefinitely, not under the stringent test of Jackson III.

There has since been plenty of opportunity to amend FISA, and the Supreme Court is not going to endorse the institutionalized violation of FISA, which is what it would have to do in order to uphold Bush, given that the WOT is going to go on for decades.

BTW, I do understand that this is all hard for non-lawyers to follow — not because a lot of you are not very smart and insightful, but because lawyers talk in a shorthand that assumes knowledge of basic doctrines, procedures and holdings that are simply not part of your education. It is like me trying to follow an evolutionary biologist explaining why the Intelligent Design supporters are wrong; at the end of the day, I simply have to accede to their authority because I am incompetent to judge the arguments after a point. But I still try to follow the discussion to the best of my limited ability in that area, even tho sometimes I want to scream: "In English, please!"
 
Written By: Mona
URL: http://
Well, is it legal to tap the communications of an American citizen while he/she is in a foreign country?
 
Written By: Mark A. Flacy
URL: http://
This "Separation-of-Powers" conflict between the Executive and Legislative Branches is an ongoing (and boringly predictable) "turf-battle." Call it an interminable negotiation.

In these negotiations, the President has very publicly defined his interpretation of the Executive’s "inherent authority."

Now the Congress needs to define theirs. Our representatives and Senators need to have this debate in the body designed to deliberate it: the Legislative Branch, then define it, and resolve together to take a stand in legislation.

I’m dissappointed that, instead of using established legislative channels to define their stance, congressional critics of Bush’s position have responded by triangulating with a tabloid media machine.

The result is mud.
-Steve
 
Written By: Steve
URL: http://
Mark: That depends on the law of the particular foreign country.
 
Written By: Mona
URL: http://
Mona, thanks ... but I’m still missing something here.

Let me lay out how I perceive this and you tell me where my reasoning leaves the tracks.

Bush and many presidents claim an inherent power to do what they’ve been doing in time of war and that the power is granted by the Constitution.

Congress passes a law which seemingly limits those powers.

If the only way to change a constitutional power is through the process contained in the constitution, i.e. amendment, how does Congress have the power to do so without following that procedure? And how can the court find for Congress?

That’s where I’m lost. If we grant that the inherent powers exist (which seems to be the case and thus the reason for the FISA law, i.e. to limit them), how does limiting those powers outside the constitutionally specified procedure for doing so grant FISA supremacy as law over the unmodified (unamended) constitutionally implied inherent powers?
That is the whole point of Youngstown – that the President cannot exercise even authority he possesses in the face of a Congressional statute where Congress also has authority in that area.
But this is sort of the point, isn’t it? Without a constitutional limit on the inherent powers claimed by presidents through the proper process, does Congress really have authority in that area?

And I don’t at all think Gonzales is conceeding anything here:
Well, the fact that the president, again, may have inherent authority doesn’t mean that Congress has no authority in a particular area. And when we look at the words of the Constitution, and there are clear grants of authority to the Congress in a time of war.
It appears to me that he’s saying that while Congress may share some authority in some areas with the executive, he’s not at all claiming that they have superior authority in those areas or in this particular area.

That’s why I’m coming to the conclusion that the answer rests in defining the constitutional limits of "inherent powers", which I assume, has never been attempted.

I think the second part of this is if, as the administration claims, those powers are granted by the Constitution, then it’s just not clear to me how Congress can supercede or limit them without modifying the Constitution.
 
Written By: McQ
URL: http://www.qando.net/
Mark: That depends on the law of the particular foreign country.
Is it against US law (which is what we are bloody writing about)?
 
Written By: Mark A. Flacy
URL: http://
McQ: Taking your last question first:
It appears to me that [Gonzalez] saying that while Congress may share some authority in some areas with the executive, he’s not at all claiming that they have superior authority in those areas or in this particular area.
It isn’t a matter of "superior" authority. Gonzalez concedes that: (a) there are areas in which Congress shares constitutional warrant with the President’s also constitutional, "inherent authority" warrant and (b) that when Congress passes a law pursuant to its constitutional authority and the President wants to violate that law by invocation of his authority, then the legal issue (conflict) falls into a Jackson Category III analysis, where Congress will usually win. Gonzalez admits this. Per that analysis, and the holding of the case, Congress will trump the President in all but the most exceptional circumstances.

And that is why the Administration has desperately sought to insist that the AUMF consitutes a superseding statute to FISA, one that allows them to violate FISA and takes the issue out of Jackson III. They are fully aware that being in Jackson III puts them on the shakiest of legal ground, but that is where they are.

John Hinderaker knows it, too, which is why he has disingenuously declared — twice now — that Jackson’s opinion should be ignored for constituting "sloppy thinking." (The likelihood of the SCOTUS ignoring Jackson is about as strong as their overturning Brown v. Board of Ed.)

Which leads to your first question:
If the only way to change a constitutional power is through the process contained in the constitution, i.e. amendment, how does Congress have the power to do so without following that procedure? And how can the court find for Congress?
There is no need to change any constitutional powers. No amendments are necessary. The Supreme Court decided, and Jackson’s opinion in Youngstown means, that Congress usually wins where both it and the President are authorized in an area, and Congress has exercised its option to legislate.

Any clearer?
 
Written By: Mona
URL: http://
There is no need to change any constitutional powers. No amendments are necessary. The Supreme Court decided, and Jackson’s opinion in Youngstown means, that Congress usually wins where both it and the President are authorized in an area, and Congress has exercised its option to legislate.
But that is, in fact, what’s going on here. FISA seeks to place limits on constitutionally granted authority.

How long will be in a condition of war, is inconsequential to those facts. It is also inconsequential of to what we should be doing, which is precisely what Mr. Bush has been doing. I would be interested, in examples of arguments as regards the suspension of "civil liberties" during and prior to world war two, that were successfully made at the time.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
There is no need to change any constitutional powers. No amendments are necessary. The Supreme Court decided, and Jackson’s opinion in Youngstown means, that Congress usually wins where both it and the President are authorized in an area, and Congress has exercised its option to legislate.

Any clearer?
Indeed, the problem underlying this entire debate is that Congress has not declared "War" in the constitutional sense of the word. If Congress had formally declared "War," one would be in a better position to make the argument that Bush has the power he claims he has under Article II. But what Bush is saying is the he has the power, independent of a Congressional declaration of War, to violate a statute if it is in his opinion necessary to do so in the name of national security. It is the absence of a formal declaration of war, the analysis in the concurrence from the Steel Seizure case settles the matter (as it should, democratically speaking). And under that analysis, Bush loses.

Of course the Bush administration is also making the throwaway non-constitutuional/argument that AUMF authorized the violaiton of FISA. But that argument is so full of holes that it seems to be losing favor even among the most reverential of Bush followers.
 
Written By: mkultra
URL: http://
McQ, let me quote from Justice Jackson’sOpinion in Youngstown, which is pretty accessible and not legalese gobbldygook. Please note that he is discussing what must be the outcome when the President is relying on his actual powers, but Congress has legislated otherwise:
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [p638] the Congress from acting upon the subject. [n4] Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
.....


In view of the ease, expedition and safety with which Congress can grant and has granted large emergency powers, certainly ample to embrace this crisis, I am quite unimpressed with the argument that we should affirm possession of them without statute. Such power either has no beginning or it has no end. If it exists, it need submit to no legal restraint. I am not alarmed that it would plunge us straightway into dictatorship, but it is at least a step in that wrong direction.

.....

The essence of our free Government is "leave to live by no man’s leave, underneath the law" — to be governed by those impersonal forces which we call law. Our Government [p655] is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the President, and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance, and the parties affected cannot learn the limit of their rights....With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.


Note that language? "With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations." Even when the President otherwise has authority, if Congress has it too, the President will be required to submit to the Legislative branch, in order to ensure freedom and the rule of law.

And this is why Bush, Powerline,and so many others want to ignore Jackson and Youngstown. It is also why honest Bush supporters, like Orin Kerr, know and state that the President would lose in the Supreme Court.
 
Written By: Mona
URL: http://
Bithead writes: But that is, in fact, what’s going on here. FISA seeks to place limits on constitutionally granted authority.

That’s right. And per Youngstown and Justice Jackson, Congress will usually win, in order to uphold the rule of law and keep us a free nation.
 
Written By: Mona
URL: http://
Any clearer?
Yes, actually ... much. What was slipping past me in the debate was the fact that it was a competing set of "inherent powers". Once that is made clear it is much easier to follow the arguments on both sides.

Thanks. I’ve mostly seen the argument framed in an inherent v. infringment context. Given how you’ve explained it, I can see why one side would want to ignore Jackson.
 
Written By: McQ
URL: http://qando.net
Thank you for explaining both opposing arguments. One hears only one side these days. The center is empty, or almost empty. The right and left bounce their opinions against their respective "choirs", which respond like Pavlov dogs. Yet the issue is not going away.

I think rebuilding centrist opposition (both to the right and to the left) will be one of the most interesting things in the near future of politics in the USA.
 
Written By: khr128
URL: http://
Bithead writes: But that is, in fact, what’s going on here. FISA seeks to place limits on constitutionally granted authority.
That’s right.
Then FISA as you’re trying to apply it here, is unconstitutional, no?



 
Written By: Bithead
URL: http://bitheads.blogspot.com
Then FISA as you’re trying to apply it here, is unconstitutional, no?

No. Read Justice Jackson’s Opinion, which I linked to above. Congress may curb presidential authority, which is to say, it may restrict authority the President otherwise has under the Constitution, provided it is legislating pursuant to its own constitutional powers. Congress does have the authority to legislate in the area of domestic wire-tapping. (I’d get into that last bit, but unfortuantely I have a family thing that will take me offline until sometime tomorrow.)
 
Written By: Mona
URL: http://
I haven’t followed the argument yet, but I can see where it is going. Nowhere. I just finished Mona’s comment.
"...at the end of the day, I simply have to accede to their authority because I am incompetent to judge the arguments after a point."

This is a version of "If the glove don’t fit; you must acquit". If Mona’s averment were true we could not have jury trials. The reason that trials take so long is that the legal mumbo-jumbo must be broken down so that lay people can understand it. Yes, attorneys can do it faster, but the process is perfectly understandable to any bright person. Yes, attention span can be a problem, but other than that we are all lawyers, just untrained. At any rate, the short cut to all this is to simply ask: "Are there interested attorneys on the other side? If so, do they agree to this?"
If there is not general agreement, then the issue is unsettled. When an issue is unsettled we need a judge and a procedure to settle it. Mona is going to try to get McQ to agree that the issue is not unsettled.
How can she do this, you say, when there are attorneys (she even mentions them) on the other side? Is not that the very definition of unsettled? Well, yes. But if you can convince the jury that the attorneys on the other side are 1)
bought and paid for and are not offering their sincere opinion; or 2) stupid
sincere, but their intellect is being affected by their emotions, loyalties,lack of time spent studying the issue, etc.
If you go for the denigration of the opposing attorneys (pick any reason, it doesn’t matter) then the rule quoted above applies and Mona wins. She can then fill in any details for you and strongly influence what you should do with this newly acquired knowledge.
Now to read on and see how accurate I was. If you are reading this you already know how far off the mark I am. Or not.
 
Written By: Notherbob2
URL: http://
Doesn’t it seem that the 9/11 commission should have had some thoughts on FISA, like maybe updating it. I guess they really weren’t that interested in fixing things, just CYA.
 
Written By: Wilky
URL: http://
Then FISA as you’re trying to apply it here, is unconstitutional, no?
No. Read Justice Jackson’s Opinion, which I linked to above. Congress may curb presidential authority, which is to say, it may restrict authority the President otherwise has under the Constitution, provided it is legislating pursuant to its own constitutional powers. Congress does have the authority to legislate in the area of domestic wire-tapping. (I’d get into that last bit, but unfortuantely I have a family thing that will take me offline until sometime tomorrow.)
Written By: Mona

One problem with your argument, as stated by Jane Harman the ranking Democrat on the INTEL commitee this is not a domestic wire tap program, She also stated the description of the program in the NYT was factually inaccurate. The congress cannot limit nor curtail by statute the executive branch’s inherent powers under the constitution if they could congress could pass a law saying that the President can’t nominate judges any longer and we know they can’t do that. The constitution is the SUPREME LAW OF THE LAND it can only be changed by ammendment.
 
Written By: Oldcrow
URL: http://
“Yes, but if it were a Democrat, the configuration of support and opposition would be different. My position would be the same in either case, but Powerline, Hewitt & etc. would be madly screaming that the Democrat Prez is violating the law and should be impeached...”
Mona, you are shameless! “My position would be the same...” Hoot! Give us a break. I don’t think I have to draw anyone a picture for you on this claim. It should be noted that her comment about the right assumes that they would be banking their political hopes on impeaching the Democrat in order to get their weak or nonexistent program installed in his place. I don’t think so. Why do I believe this? Because who would pick that way to run a campaign – one that needs lawyers to explain it to voters – if they had anything, anything else to offer. The right has other things to offer. So even if they thought that the President should be impeached, they would structure their campaign on issues that don’t need attorneys to sell.
 
Written By: Notherbob2
URL: http://
Mona is going to try to get McQ to agree that the issue is not unsettled.


How is she doing that, Bob? I certainly didn’t get that impression. What Mona did was clear up the arguments. What’s she’s pointing out is the precedent clearly favors the side arguing that Congress has the right to do what it did. Whether that makes it "settled" is far from clear, nor, something of which she seemed to be trying to convince me. Instead she very graciously explained the intracacies of the case in a much clearer manner than anyone else has.

Is it settled? Hardly. To borrow an old baseball cliche, "that’s why they play the games". While precedent is a powerful thing, the fact that precedent favors one side over the other hardly "settles" the argument nor requires the court to follow it. So we’ll see how this plays out.

But I have no dog in the hunt concerning having a vested interest in which side’s argument wins the day. I’m mostly interested in just understanding the argument.
 
Written By: McQ
URL: http://qando.net
If things were so clearly settled, and if Presidential power can, in fact, be straight-forwardly curtailed, then one has to ask:

Why is the War Powers Act not invoked by the Congress in the face of Presidential authorizations of use-of-force w/o benefit of a Declaration of War?

And this is true regardless of which party controls the Congress and which party controls the White House.

It would seem that, in fact, neither party is prepared to take the War Powers Act before SCOTUS, b/c in fact it is likely to lose to the White House. Suggesting that not every effort to impair Presidential power is acceptable, even if it is passed by proper method by the Congress, according to its own rules.

For the same reason, Presidents of both parties have refused to abide by the War Powers Act (although some have been willing to generally report to Congress within 90 days of the commitment of forces)—-they are unprepared to see the "inherent" authority of the Presidency reduced.

This would suggest that the issue regarding FISA is similarly nowhere near as cut-and-dried as Mona suggests. It has not come up before, but that does not mean that it is necessarily the White House that is at fault.
 
Written By: Lurking Observer
URL: http://
Well, cutting to the chase, Mona elected try to convince McQ that the opposing attorneys are ignoring the clear law based on their loyalties to Bush and the issue of NSA is well settled under a “Jackson Category III” analysis.
“Per that analysis, and the holding of the case, Congress will trump the President in all but the most exceptional circumstances...”
Ugh, you mean, ugh, like terrorists flying airplanes into the Pentagon?

“Nahhh, ...happens all the time. Do not adjust your set. If I had time I could cite precedents of jets going into buildings as far back as 1814 or so. Well settled.”

This is the old 99 times out of a hundred argument. Meaningless, but tempting. A similar type of argument (one which will, hopefully, never be made to a jury) would be: “Take the average felon tried and found guilty in a trial, judge. Ninety nine out of a hundred are not sentenced to life in prison. Is my client’s serial killing fixation an exceptional circumstance? Nahhhh.....happens all the time. Therefore, you would be exceedingly silly to sentence him to life, judge.”
MxQ did us all proud and refused to be railroaded. It is unsettled. And that is unsettling. Such an important issue needs to be settled. IMHO that will take a new SCOTUS ruling. I am all for that. Now let me tell you what I am not for.
I am not for political parties deciding to jumpstart their campaign by taking advantage of the frustrations of the voting public during a challenging time
when the country is facing a serious threat. I sympathize with the Democrats. It’s tough when your base and the majority of your voters are so out of synch and you can’t come up with any appealing issues to run on. Cashing in on BDS and shouting fire in the theater of our political frustrations stinks. How can I vote for this?
Oh, by the way, if the issue is unsettled, then Bush, even if the SCOTUS eventually finds that he should have respected FISA, is not... well, you know.
 
Written By: Notherbob2
URL: http://
No. Read Justice Jackson’s Opinion, which I linked to above. Congress may curb presidential authority, which is to say, it may restrict authority the President otherwise has under the Constitution, provided it is legislating pursuant to its own constitutional powers. Congress does have the authority to legislate in the area of domestic wire-tapping. (I’d get into that last bit, but unfortuantely I have a family thing that will take me offline until sometime tomorrow.)
It’s called the "balance of power between branches of government". It was written into the constitution for a reason. You may want to look into it, since your argument seems bent on defeating it.
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Bob:
(Chuckle)

Well spoken, sir.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
Anyone else get the feeling lawyers make this ’stuff’ up as they go along?
 
Written By: John
URL: http://
Maybe it would clear things up by referring to some of the most relevant passages of the Constitution itself.

Article 1, Section 8:

"The Congress shall have power 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."

Article II

"The President shall be commander in chief of the Army and Navy of the United States"

"he shall take care that the laws be faithfully executed"

Article VI

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


If the National Security Agency is part of the "Army and Navy of the United States" for purposes of the Commander in Chief power, then it is also part of the "land and naval forces" which the Constitution explicitly gives the Congress the power to "make rules for the government and regulation of." FISA would therefore be a "law of the United States...made in pursuance of the Constitution". Therefore it is part of "the supreme law of the land" and the President is commanded to "take care that the laws be faithfully executed."

It’s all there in the text. Jackson’s concurrence is a pretty straightforward application of the text: the President has to faithfully execute the laws unless the laws aren’t valid.

If I’m wrong, show me the part of the Constitutional text or the specific Supreme Court precedent that shows I’m wrong. Don’t just throw out a bunch of gobbledeygook about "inherent powers".

And always remember: the commander in chief clause is a grant of power, just as Article I makes grants of power; it is not an inalienable right. OF COURSE it has limits. All grants of power in the Constitution are limited—by the bill of rights, and by the grants of power to other branches, and by the inclusion of duties along with powers.

Just think about it for a second: if "the President shall be commander in chief of the armed forces" means that there are no legal limits on what the President can order the armed forces to do—well then we live in a military dictatorship. Of course there are limits on the commander in chief power.
 
Written By: Katherine
URL: http://
"Just think about it for a second..."
Well Katharine, it appears that you did spend about a second thinking about this.
You know, if you have a little time you probably should read some of the stuff that is being written about what is going on in the world right now. It is a little scary. On the subject of this thread, for instance, read Glenn Greenwald. He refers to America as: “the Bush Administration and its followers”. Well, okay, he means only the right wingers, but what a frame of reference. He then goes on to say:

“That is precisely why the Administration is so aggressively seeking to attack and silence those two groups, and it is why the significance and danger of those attempts really can’t be overstated”

He is referring to the efforts to nail the whistleblowers (and the NYT) for leaking the information about the NSA program that allowed the Democrats to start all of this. Why do I find this scary? Because I am a 100% supporter of nailing those people. I believe that their motivation was political and not patriotic.
But what if I am wrong? What if I am a “useful idiot” of the right wing? Or the Bush Administration (or whatever other evil conspiracy Greenwald can envision)?
A whole lot of otherwise smart people seem to be eating up the Greenwald stuff. Yes, they are all Democrats and yes, they all seem to exhibit the symptoms of BDS, but what if they are right and I am wrong?
A mere month ago (prior to the kickoff of the Democratic campaign) I was totally oblivious to this evil conspiracy. I was proud that the Bush administration had blundered through at great cost (as all governments are wont to do) to keep us safe from terrorists. Now I wonder. Near as I can tell, no American has been killed by a terrorist of any kind in the last five years while in the Homeland. So I guess the Democrats (and their spokesman, Mr. Greenwald) must be right. Terrorists are not dangerous. The real danger is the Bush administration and its evil plan to.....well, Mr. Greenwald is not
specific on that point. They are evil and up to no good that is for sure. He said so. And the only way to head off this evil is to elect Democrats. And impeach Bush. Right away, in time for the election so that all Americans can be made aware of the evil that he has done in time to vote for Democrats.
Is he right? After all, Joe McCarthy is in his grave. We are much too sophisticated and experienced to fall for anything like that stuff today. Clooney just made a movie about it. We know better.
and all those commenters on Greenwald’s site. Oh sure, there is not so much profanity, but they sound like Kos commenters, only more focused. They mostly write in good English and complete sentences. Yes, they almost all seem to be suffering from BDS, but what if they are correct? They think that we should vote for Democrats too.
Well, I’ll tell you what. After giving this matter some thought, I think that the best policy is to trust, but verify. By that I mean trust Bush, but verify
that he doesn’t have unlimited powers and determine just what powers he (meaning any President) does have, wars against terror or whatever.
As to Democrats? I say thank them for bringing this issue to our attention, investigate and prosecute the hell out of them for disclosing classified information and vote for them based on the policies and programs they are specific about standing for and implementing in our government. Now that seems fair.
And yes, I was too tough on Katharine, who is the poster person for making up your mind about what you want the Constitution to say and then reading in to back up your pre-formed opinion.
 
Written By: Notherbob2
URL: http://
To address multiple points. Notherbob2: Frequently at jury trials there are expert witnesses introduced on issues where the jury cannot be expected to understand the facts involved. These witnesses try to break it down for the average intelligent layperson, and that is all I have been doing here.

Additionally, I most emphatically do not think the Powerline trio or Hugh Hewitt are stupid. On the contrary, they are highly credentialed lawyers and as such are fully aware of the vacuity of their legal "anlayses" offered for online consumption. In a word, they are shills.

Moreover, I am most amused at those who disbelieve that my position on this warrantless surveillance would be identical if it were Clinton doing it. I disliked Clinotn, didn’t vote for him, and do not want to see his wife assume the throne. While I have never formally joined a political party, I came close in the early 90s when I signed up for The Republican Liberty Caucus, which is libertarian.

In my very strong view, Bush "conservatism" is nothing more than populism, which is the antithesis of libertarianism. If I am any kind of conservative it is of the Goldwater variety — Barry would have an aneurism over much that Bush and the modern GOP has wrought, and he would never countenance the institutionalization of taps on the telephones of U.S. persons sans warrant, and in violation of a criminal statute.

For the party who invokes Jane Harman: she has joined her Republican colleague, Heather Wilson, in finding the NSA program to be illegal:
Representative Jane Harman of California, the senior Democrat on the Intelligence Committee, said [Heather] Wilson [R-NM]expressed private concerns to her about the eavesdropping last year, shortly after it became public.

"She was very concerned," said Ms. Harman, who has supported the program in the past but said she now believed that its legal underpinnings were weak. "She came to me, asking me what I thought."<<
Do read the whole article, which discusses the GOP’s Wilson — who has strong national security and intelligence credentials — and her belief that the program as constituted without warrants, is illegal.
 
Written By: Mona
URL: http://
Mona, have you prepared an alternative line of argument to use in the event the program is ruled legal?

It seems you are overextending yourself rhetorically, and haven’t contemplated the possibility that folks like Jimmy Carter’s Attorney General might be right.

You’ve clasped onto the fact a GOP congresswomen is expressing "concerns" about the program, but this in no way proves it is illegal. In fact, it could be another "rope-a-dope," a Rovian bait-and-switch trick that unsaavy politicos with your leanings always seem to step right into.

Better keep the traffic lane next to you open, you may have to suddenly change lanes!
-Steve
 
Written By: Steve
URL: http://
.
In a word, they are shills.
That’s three words.
Also, May one logically ask whom it is you shill for?
 
Written By: Bithead
URL: http://bitheads.blogspot.com
Steve, I suggest you read the entire article, whihc includes this — and note that Wilson is chair of the committee that oversees NSA:

Ms. Wilson and at least six other Republican lawmakers are openly skeptical about Mr. Bush’s assertion that he has the inherent authority to order the wiretaps and that Congress gave him the power to do so when it authorized him to use military force after the Sept. 11, 2001, attacks.

The White House, in a turnabout, briefed the full House and Senate Intelligence Committee on the program this week, after Ms. Wilson, chairwoman of the subcommittee that oversees the N.S.A., had called for a full-scale Congressional investigation. But some Republicans say that is not enough.

"I don’t think that’s sufficient," Senator Susan Collins, Republican of Maine, said. "There is considerable concern about the administration’s just citing the president’s inherent authority or the authorization to go to war with Iraq as grounds for conducting this program. It’s a stretch."
And I need no alternative theory, because I am certain — as are other non-leftist laweyers like Orin Kerr, Glenn Greenwald, Richard Epstein, Bill Sessions, Bruce Fein and apparently Stephen Bainbridge — that the Youngstown case settles the matter. (I say "apparently" about Bainbridge because he did not so much parse the legal issues, as simply delcare, when he learned about the warantless surveillance, that he was almost incentivized to send a Xmas check to the ACLU.)

Bithead, I meant the one word for the Powerline trio and Hewitt is: shill. And whom do I shill for? When I make public legal arguments in a political context, I always and only advocate for the truth as I, in good faith, understand that to be. I believe it is a gross, unethical betrayal of the public trust to stand on one’s JD to advance cynical political claims.

I ardenly, almost religiously, love the United States of America and stand in nearly reverential awe of the bloody geniuses who forged it and bequeatehd it to us. Perhaps it could be said I shill for them.

 
Written By: Mona
URL: http://
Just think about it for a second: if "the President shall be commander in chief of the armed forces" means that there are no legal limits on what the President can order the armed forces to do—well then we live in a military dictatorship. Of course there are limits on the commander in chief power. Written By: Katherine

If King George could wiretap us in 1775 we would still be paying tax on tea. What do we do when it is time to overthrow our government and "they" are monitoring our conversations?
 
Written By: poli
URL: http://
Just think about it for a second: if "the President shall be commander in chief of the armed forces" means that there are no legal limits on what the President can order the armed forces to do—well then we live in a military dictatorship. Of course there are limits on the commander in chief power.
Yes there are legal limits lots of them first once congress declares war or passes an AUMF then yes the executive becomes the closest thing to a military dictatorship our form of government allows that is why congress has to think long and hard before giving that authorization or declaring war. Congress also can limit what the President does as far as were the armed forces are used inside the US, think posse comutitus for instance aslo they control the purse and whether the Armed forces even exist so they can cut off funding or disband the Army if they want.

"land and naval forces" which the Constitution explicitly gives the Congress the power to "make rules for the government and regulation of." FISA would therefore be a "law of the United States...made in pursuance of the Constitution". Therefore it is part of "the supreme law of the land" and the President is commanded to "take care that the laws be faithfully executed."
Written By: Katherine
governance and regulation are not the same thing as how they are used and you know it, yes they can make the UCMJ and determine the number and type of armed forces but they cannot tell the President how to use those forces that is the difference between governance, regulation and command.One is administrative the other policy and implimentation
 
Written By: Oldcrow
URL: http://
For the party who invokes Jane Harman: she has joined her Republican colleague, Heather Wilson, in finding the NSA program to be illegal:
Do read the whole article, which discusses the GOP’s Wilson — who has strong national security and intelligence credentials — and her belief that the program as constituted without warrants, is illegal.
Written By: Mona

Yes but if you read the interview she did with FOX last week after they were briefed she contradicts herself several times, she states the program is not domestic wiretapping and that the NYT’s did not describe the program as it really is(this has also been stated by the AG and Gen Hayden) she then says she "thinks" it violates FISA but is very important and should not be stopped. So with that how can it be illegal and violate FISA if it is not a domestic intercept program? Answer it can’t be illegal if what she said about it is true and she has no reason to lie. Collection of INTEL is an inherent right of the executive during times of war most people I see post about this seem to either forget about that or purposely ignore it to try to show it is illegal, you Mona fall in the latter catagory and youngstown does not apply at all to this issue and you know it.
 
Written By: Oldcrow
URL: http://
" but they cannot tell the President how to use those forces"

The president can order soldiers to kill the enemy, but if he orders them to kill them in a way not authorized by congress or international law, he commits a crime. The same goes for everyone down the chain of command. That is why the oath says obey lawful orders, not any orders.
 
Written By: timactual
URL: http://
Oldcrow writes:
Yes but if you read the interview she did with FOX last week after they were briefed she contradicts herself several times, she states the program is not domestic wiretapping and that the NYT’s did not describe the program as it really is(this has also been stated by the AG and Gen Hayden)
Any links or direct quotes for any of that?
 
Written By: Mona
URL: http://
Not the same thing and you know it, nice strawman though.
 
Written By: Oldcrow
URL: http://
Mona here you go LINK
 
Written By: Oldcrow
URL: http://
Ok, Oldcrow, read your 1/8 link. And this contradicts my more recent links and arguments how — even wholly granting those 1/8 remarks?
 
Written By: Mona
URL: http://
"and you know it"
Do you realize how many times you use this accusation? The charge that everyone who disagrees with you is intentionally lying is not very nice, and you know it.
 
Written By: timactual
URL: http://
HARMAN: Fair question. And my answer, in hindsight, is that I came into an ongoing process. I believed that the legal framework was set, and the briefings were about the detail of the ongoing program. Remember, I support the program.

HARMAN: And perhaps I should have had more information at the time. But now that I have been able to discuss this program with legal scholars — not the details of the program, but the existence of the program — since it was disclosed by the president, I now believe that under the National Security Act of 1947 the full committee should have been briefed. And that’s what I’m asking for.

And I believe that that is what the law requires. I also believe that members of Congress should exercise oversight over programs like this. And there are questions about whether this program complies with the domestic laws we have. And if it doesn’t, either it should be changed or they should be changed.

HARMAN: Well, the foreign collection program that I know about I believe is legal and necessary. If in fact, as some of the newspaper stories allege, there is a domestic surveillance program going on, my view is that the law requires that domestic surveillance only be done pursuant to a court order, either with the Foreign Intelligence Surveillance Court or the criminal court.

So she says what she was briefed on was legal what she thinks was violated was the law saying the President should have briefed the entire commitee, she then states she talked to some lawyers and asked them about the legality and only the 1947 ACT was violated, so no FISA law was violated according to her. I find it amazing she sites newspaper reports to say maybe something is illegal that tells me right there the DEMS have nothing and this is all political and a food foght between the executive and the legislative. My prediction if it goes to the SC it will be kicked back to them with a strongly worded get your acts together and figure out what needs to be done.
 
Written By: Oldcrow
URL: http://
Again, Oldcrow, how does any of that contradict Harman and others’ more recent statements?

But even if Harman did — and she didn’t contradcit it — my explanation of the law would hold, as many other non-left lawyers also agree.
 
Written By: Mona
URL: http://
Well if you can’t or won’t see that she contradicts herself and understand that it means everything that the POLS are saying is politically motivated and not based on the facts then why bother debating? You have clearly made up your mind and as for the non-left lawyer thing well a lot of lawyers believe it is legal on both the right and the left however, none of them know the details of what the program is actually about so they can’t make an informed judgement and niether can you but Harman and the rest can but we cannot trust what they say as evidenced by the interview. Politicians will say anything during an election year to get votes and keep their jobs, the RINO’s saying it is illegal are doing just that. What is the solution? Take the hearings out of the public arena but don’t hold your breath on that happening now. This is a prime example of why we need to hunt down the leakers and make them pay a hefty price. Before the leaks NOT ONE SINGLE POLITICIAN HAD A PROBLEM WITH THIS PROGRAM AS A MATTER OF FACT JUST THE OPPOSITE THEY PRAISED IT.
 
Written By: Oldcrow
URL: http://
I am also confused about these wiretaps in that Congress and FISA court were supposedly briefed about them every 45 days (or what not.)

Why didn’t either of those two parties come out and say they are illegal earlier?

Did they not show this to a single Democrat? I thought two of them wrote letters about the program?

and what about the FISA court? Wouldn’t they be the absolute best placed individuals to say, "no, sorry, this won’t do?" Are FISA courts packed with Bush supporters, too?

I will bring up a small theory: in 2001/2002 and even 2003, it would not have been in the Dems political interest to oppose wiretapping Al Qaeda. They probably even agreed then. Now, of course, years after 9/11 when the threat is fading, it’s time to criticize the program and score brownie points.

Just a guess though. As with the Gitmo stuff, until we see every detail of the program there will be doubt for both sides.
 
Written By: Harun
URL: http://
Another question or two:

How does this sort of decision get made in Washington? Is it top down? Say on Sept 12 do the lawyers sit around and decide what can and can’t be done in the war.

Or is it a case of a request from MI that they have a cell phone in Kanadahr and could they do A, B, C, at which point the lawyers look into it?

Now, if the lawyers do when they think they have good argument that it’s legal...should they pass it immediately to SCOTUS to make sure, so that they won’t worry about blowback in 4 years time? What about say only 90% confidence that it’s legal?

Genuinely curious about the above, BTW.
 
Written By: Harun
URL: http://
NOT ONE SINGLE POLITICIAN HAD A PROBLEM WITH THIS PROGRAM AS A MATTER OF FACT JUST THE OPPOSITE THEY PRAISED IT.
Apparently, you still haven’t grasped the fact that even those of us who think it’s being done incorrectly STILL want the program to continue. We support the program, we just think it’s being conducted improperly.

This is not a difficult concept to grasp.
Why didn’t either of those two parties come out and say they are illegal earlier? .... and what about the FISA court?
For one thing, there’s a great deal of dispute about the degree to which the Congressmen were informed of the program. For another, the program was classified and their ability to discuss it was limited.

Also, some FISA judges have disputed the conduct of the program.
I will bring up a small theory: in 2001/2002 and even 2003, it would not have been in the Dems political interest to oppose wiretapping Al Qaeda.
Christ on a stick! NOBODY OPPOSES WIRETAPPING AL QAEDA!!! Come to terms with that, please.
 
Written By: Jon Henke
URL: http://www.QandO.net
Christ on a stick! NOBODY OPPOSES WIRETAPPING AL QAEDA!!! Come to terms with that, please.

Thank you.

It is very likely the case that this NSA program is a powerful and valuable national security tool. If so, I’d be the last person on the planet to want it to stop, and no one, not Republican Heather Wilson nor Democrat Jane Harman, is saying differently. What they are saying — and what I agree with — is that this program should be done in compliance with the law, namely, FISA.
 
Written By: Mona
URL: http://
It is very likely the case that this NSA program is a powerful and valuable national security tool. If so, I’d be the last person on the planet to want it to stop, and no one, not Republican Heather Wilson nor Democrat Jane Harman, is saying differently. What they are saying — and what I agree with — is that this program should be done in compliance with the law, namely, FISA.
And what you’re asking for cripples the program, as I’ve suggested.

 
Written By: Bithead
URL: http://bitheads.blogspot.com
Truong stated that the president has the constitutional authority under his executive Art. II powers. This has been affirmed by In re: Sealed Case No. 02-001 by the FISC in 2002 post-FISA. Therefore, though Truong is pre-FISA, there is affirmation of the on-point issue post FISA and Bush will prevail.
 
Written By: Mason Bane
URL: http://

 
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