it's now wrong to identify an unconstitutional act?

[dennis99ss]

and, by the way, we stopped atacks before Bush, without the use of wiretaps.

 

[va32h]

There is, therefore, a line to be drawn. You can give up civil liberties and your freedom and democracy in order to defeat the baddies but

It is absolutely terrifying to me how many people are perfectly willing to give up their civil liberties in order to feel "safe".

Where would it stop? Should we allow warrantless searches of our homes and vehicles? After all, if you have nothing to hide, why should you care? How about having all mail opened and inspected? If you aren't doing anything wrong, what do you care if your mail is read?

Or we could round up anyone of Middle Eastern descent and inter them in camps until we can establish whether or not they pose a potential terrorist threat. Whoopsie - we already tried that with the Japanese, in WWII.

But ya know, something tells me the folks on this board don't see anything wrong with that.

 

[Geoff_M]

I don't see any provision in the constitution that allows a president to spy on Americans, without a warrant.

Oh, the hyperbole!

Anyone that claims with certitude that the actions in question are "unconstitutional", hasn't bothered to read beyond the NY Times headlines or the comments of the Democratic Leadership (who, if they are to be believed are quickly becoming the most gullible bunch in Washington... "We were misled!!!.... Again!!!") Hugh Hewitt actually bothers to look at what is known about the legalities of this bru-haha, and makes several good points:

Overlooked in most of the commentary on the New York Times article is the simple, undeniable fact that the president has the power to conduct warantless surveillance of foreign powers conspiring to kill Americans or attack the government. The Fourth Amendment, which prohibits "unreasonable" searches and seizures has not been interpreted by the Supreme Court to restrict this inherent presidential power. The 1978 Foreign Intelligence Surveillance Act cannot be read as a limit on a constitutional authority even if the Act purported to so limit that authority.

"Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."

That is from the 1972 decision in United States v. United States District Court for the Eastern District of Michigan et al, (407 U.S. 297) which is where the debate over the president's executive order ought to begin and end. The FISA statute can have no impact on a constitutional authority, any more than an Act of Congress could diminish the First Amendment protection provided newspapers. Statutes cannot add to or detract from constitutional authority. (They can influence the Supreme Court's interpretation of the president's authority, as discussed by Justice Jackson in his famous opinion in the Steel Seizure Cases.) The 1972 decision contains a colloquy from the Senate floor between Senators Hart, Holland, and McClellan on that illustrates the correct understanding of this crucial principle:

"Mr. HOLLAND. . . . The section [2511 (3)] from which the Senator [Hart] has read does not affirmatively give any power. . . . We are not affirmatively conferring any power upon the President. We are simply saying that nothing herein shall limit such power as the President has under the Constitution. . . . We certainly do not grant him a thing.

"There is nothing affirmative in this statement.

"Mr. McCLELLAN. Mr. President, we make it understood that we are not trying to take anything away from him.

"Mr. HOLLAND. The Senator is correct.

"Mr. HART. Mr. President, there is no intention here to expand by this language a constitutional power. Clearly we could not do so.

"Mr. McCLELLAN. Even though intended, we could not do so.

"Mr. HART. . . . However, we are agreed that this language should not be regarded as intending to grant any authority, including authority to put a bug on, that the President does not have now.

"In addition, Mr. President, as I think our exchange makes clear, nothing in section 2511 (3) even attempts to define the limits of the President's national security power under present law, which I have always found extremely vague . . . . Section 2511 (3) merely says that if the President has such a power, then its exercise is in no way affected by title III."[Footnote 7] (Emphasis supplied.)

The first question is the scope of the president's authority to order warrantless surveillance on participants in plots involving foreign powers against the United States. The president and his legal authorities have concluded that he does have that authority, even if the plot involves some American citizens. Apparently Congressional critics of the action do not believe it. There is no definitive Supreme Court precedent on the question, and the Congress cannot define the answer even if it wished to. (Examine every commentary on the issue to see if this candid admission is made. If not, then the writer is not being honest about the central issue in the debate, or is ill-informed.)

If Hillary wants to run in 2008 on the pledge that she will not conduct warrantless surveillance of foreign powers plotting against the United States when those plots involve an American citizen, she has that right. If the Senate Democrats, already committed to blinding American intelligence in the GWOT by allowing the Patriot Act to lapse, want to make the issue of warrantless surveillance of foreign powers plotting against the United States when those plots involve American citizens, I think every GOP candidate ought to gladly take up that challenge.

I am reproducing Justice Jackson's concurrence in the extended entry for the convenience of the reader, as well as the opinion from the 1972 decision. At the conclusion of that Justice Jacksson's opinion, he wrote a summary applicable to the current assertion of presidential authority:

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.

http://hughhewitt.com/archives/2005/12/18-week/index.php#000808#more

 

[JCJRSmith]

I totally agree. In this time of national crisis, a time when our most cherished freedoms and rights are threatened by international terrorists, Americans must be willing to let go of some of their rights and freedoms. We are at war. We are under siege by terrorists who are adherents of a fundamentalist, totalitarian belief system that makes up it's own rules and does not tolerate dissent. Not exactly a great time for our President to pay attention to the constitution, or such divisive, destructive things as dialogue and debate. Please, as American Citizens who want to protect your country, stop asking questions, accept the decisions of your leaders, and let's get on with spreading this kind of freedom and liberty to all the world.

Did I read that correctly? Are you suggesting that, because the terrorists support removing our rights as guaranteed us by the Constitution, we should give them up to the government? We should give up rights so they don't get taken away?

 

[Laura]

Did I read that correctly? Are you suggesting that, because the terrorists support removing our rights as guaranteed us by the Constitution, we should give them up to the government? We should give up rights so they don't get taken away?

I think Tycoon was being facetious.

 

[tiberius]

Did I read that correctly? Are you suggesting that, because the terrorists support removing our rights as guaranteed us by the Constitution, we should give them up to the government? We should give up rights so they don't get taken away?

actually it was an attempt at sarcasm or satire, I think

 

[tiberius]

How about having all mail opened and inspected? If you aren't doing anything wrong, what do you care if your mail is read?

While they are reading my mail, can they pay a few bills, too?

 

[JCJRSmith]

Interesting post there Geoff. What is equally interesting: in that article, Hewitt blames the Democratic party in the Senate for letting the Patriot Act expire. If you look at the site where you got the article, and full-screen your browser, you will see right next to the paragraph that begins "If Hilary..." you will see an ad for Senator Frist - one of the GOP senators that voted to kill the Patriot Act.

 

[JCJRSmith]

I think Tycoon was being facetious.

I hope you are right.

 

[sodaseller]

Oh, the hyperbole!

Anyone that claims with certitude that the actions in question are "unconstitutional", hasn't bothered to read beyond the NY Times headlines or the comments of the Democratic Leadership (who, if they are to be believed are quickly becoming the most gullible bunch in Washington... "We were misled!!!.... Again!!!") Hugh Hewitt actually bothers to look at what is known about the legalities of this bru-haha, and makes several good points:

That's a pretty specious constitutional analysis. There are two main pronciples undergirding our Constitution, what I call the "constitutional architecture". Those two are federalism and separation of powers. To maintain that the President can abrogate the separation of powers is hard to maintain. There is almost no major act that can be taken unilaterally, and those that involve individual righst vis a vis a the polis are almost always checked by a magistrate, and sometimes, the text goes even further (i.e. jury). Don't rely on Hugh Hewitt for legal advice. Lincoln suspended habeas corpus, which was deemed unconstitutional (admittedly post fact) but that was in the presence of a domestic insurrection), despite specific textual support for such a practice in the presence of an actual insurrection. That fairly negates any claim of an extension of general Presidental CnC powers domestically, and that was before the infamous and rather bufoonish Posse Comitatus Act, which a few months ago supposedly paralyzed this legally scrupulous Administration from ever looking to extend the strict limits of its power to aid struggling Louisiansan. (Did you think we forgot?)


The closest argument the President has is that this is a de facto extension of the fact plenary war powers that have evolved. But heck that might work short term, but even FISA has an urgency clause with 72 hours request for warrant after the fact, so that falls apart upon close scrutiny.

This really is legally indefensible

 

[LoraJ]

So the Republicans on this board think it is okay for Bush to break the law. Interesting...

 

[Planogirl]

When did civil liberties become all about "me". I keep seeing people post that they don't mind losing civil liberties because it won't affect "me". They're supposed to protect people in general and are a big part of what the USA is built on. Now in order to feel "safe", more and more of them need to be twisted and perverted?

Actually, it might be easier to protect this country from terrorists if we weren't concentrating so much on Iraq, where the terrorists aren't located (or at least they weren't).

 

[Geoff_M]

I think you missed Hewitt's point: People jumping up and down trying to claim that Bush's actions were illegal or clearly unconsitutional are at best jumping the gun. Congress and the courts have seemed to agree that the much talked about FISA statutes do not constrain the President's constitutional powers to gather intelligence about plots against the US by foreign powers. The devil in the details is whether said powers include domestic persons (and for that matter we don't even know if such wiretaps involved citizens). Hewitt notes that there appears to be no judical ruling on the matter. It would appear to be a gray area. It would be nice if many of Bush's critics would at least acknowledge it as such. Where it will end up if challenged isn't certain, even in Hewitt's eyes.

So the Republicans on this board think it is okay for Bush to break the law. Interesting...

I rest my case.

 

[sodaseller]

I think you missed Hewitt's point: People jumping up and down trying to claim that Bush's actions were illegal or clearly unconsitutional are at best jumping the gun. Congress and the courts have seemed to agree that the much talked about FISA statutes do not constrain the President's constitutional powers to gather intelligence about plots against the US by foreign powers. The devil in the details is whether said powers include domestic persons (and for that matter we don't even know if such wiretaps involved citizens). Hewitt notes that there appears to be no judical ruling on the matter. It would appear to be a gray area. It would be nice if many of Bush's critics would at least acknowledge it as such. Where it will end up if challenged isn't certain, even in Hewitt's eyes.

I rest my case.

I don't think it's grey at all, and I think there are plenty of decisions that state that. Sure the President has plenty of intelligence gathering power. But it's larger than just a separation of powers issue - Congress vs. President. This is President vs the people, i.e., the right to judicial review. That's a monumental difference. To argue that general war making power can include violating sacrosanct indivdual rights unless specifically prohibited is untenable - those powers aren't granted inferentially. Then again, this Administration has never abided by by even USSC decision that limit Executive power pretty untenable.

 

[Geoff_M]

I admire your certainty, however the full facts of the situation are unknown and a great deal of speculation is filling the vacuum in the mean time. If you look at many of the press accounts of the presidential authorizations, you'll see that many authors and figures cited are in fact stopping short of calling the actions unconstitutional or illegal. Call me ill informed in you wish, but based on what I've read I think it's entirely possible that our courts would find narrowly defined presidentially authorized intelligence gathering activities involving international communications between foreign entities known to be conspiring against the US and their suspected domestic contacts, particularly if they not US citizens, to be within Constitutional boundries. The chips may fall the other way, but I think it's way too early to declare a TKO either way.

Another example of the perceived "grey area" is noted in a federal case from 2000 (ironically, it's USA vs. Usama Bin Laden):

The Government urges that the searches at issue in this case fall within an established exception to the warrant requirement. According to the Government, searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant. The Defendant asserts that such an exception does not exist and should not be recognized by this Court.

The Supreme Court has acknowledged but has not resolved this issue. See United States v. United States District Court (Keith ), 407 U.S. 297, 321- 22 (1972). Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents. See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974);
United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980)...

http://www.law.syr.edu/faculty/banks/terrorism/dummyfl/binladen_12_19_00.pdf

Also add to that the comments of U. of Tenn. law prof Glenn Reynolds (who says he used to teach FISA in class):

It's also worth noting that there are two distinct issues here: Whether the wiretapping (or other interception) was legal, and whether the leak was legal. The leak almost certainly violated the law. The wiretapping is not so clear: Most people fail to appreciate how limited their protection against government surveilliance is, both under statutes and under constitutional law. And that's doubly so where international communications are concerned. (And, except for the small possibility of a constitutional-tort action, the main remedy for unconstitutional surveillance can be found in the exclusionary rule, which only comes into play if someone is prosecuted and the government tries to introduce the surveillance into evidence -- meaning that, as with the exclusionary rule in general, the remedy is worthless if you're never charged with anything, say because you're innocent.) Nor is this a phenomenon that can be blamed on the Patriot Act or the Bush Administration, particularly -- the protections are just quite limited indeed, and prone to technical parsing on such questions as whether the communications were "stored," even momentarily, en route. (For a non-FISA example of that kind of parsing, read the Steve Jackson Games opinion from 1994, long before the Patriot Act). You may find these legal interpretations offensive -- I do -- but they're the law as it is.

http://instapundit.com/archives/027553.php

 

[M:SteveO]

and, by the way, we stopped atacks before Bush, without the use of wiretaps.

Wiretaps weren't invented by Bush. We've been using them for decades to prevent attacks, so it's not like Bush just said all of a sudden, "you know what, today I'm gonna create a thing called a wiretap and spy on normal American citizens because I like doing it." Ladies and gentlemen, these wiretaps are authorized to spy on people in the country who are making phone calls to known terrorists abroad. Now if you don't think the gov't should be allowed to spy on them, you've got problems.

If you are not a bad guy, you have nothing to worry about.....Guess what people, the NSA computer picks screening, which means if a bad guy calls you, for whatever reason, you are then monitored. So, if you sell sea shells by the sea shore, and bad guy calls you from his cell phone that is on the NSA list, your phone then becomes on the list. You are not a bad guy, but the Gov't knows what you do.

You know what, if a terrorist decides to call my house for whatever, I would expect and hope that the gov't was listening in on the conversation. If you're offended by a computer picking up phone calls from terrorists, you've got problems. We are at WAR. The gov't knows what everyone does anyway, there's no reason for them to listen in on regular people's conversations. They simply don't do it. If you're connected to terrorism, you're gonna get spied on. But, in order for the gov't to determine if you're a terrorist, they need to collect preliminary information on you, so to speak. So to make sure you're not a terrorist, they've got to have information on you, which according to some people, violates their civil liberties. The gov't knows I'm not a terrorist, the gov't knows you're not a terrorist, so they're not gonna waste their time wiretapping my phone, unless, of course, an international terrorist calls my house, as I'm sure so commonly happens to people and is why many people are so upset about this. If you're last name is Mohammed and you're checking out books on the architecture of the Empire State Building and you've been making suspicious phone calls, don't you think maybe the gov't should be paying attention. Seems like they've done a pretty decent job for the last four years.

Oh, and, George Bush hates black people.

 

[dcentity2000]

Comrades, give up your freedom in the name of, err, freedom!



Rich::

 

[Geoff_M]

A small reminder for those "shocked" and think this is somehow the result of Post 9/11 paranoia, The Patriot Act, Karl Rove, the current occupant of the White House, Underwear Gnomes, etc.: Link

 

[sodaseller]

I'm not certain the facts will matter that greatly. Lawyers refer to questions of law, questions of fact, and mixed questions of fact and law. The facts do not appear to be in dispute here, making it a pure question of law - i.e., does Art II power permit domestic surveillance without any judicial review, even postfact? What facts might change that?

In fact, let's play a legal thought game - let's assume facts most favorable to the President. Let's assume that they receive a tip of an Al Queda sleeper cell. FISA, as currently constituted, even permits an immediate wiretap, so long as they petition the Court to maintain it within 24 hours. So hard to see any facts that might support the President's position.

Here's the only two I can imagine. First, let's presume that the standards for a FISA wiretap cannot be met. I am necessarily speculating here, because I do not know those standards. But I can take a pretty close guess. Likely all that is needed is an affidavit from an agent that sets forth the facts of particularized suspicion, along with a notation of the status of the individual, and some assurance that irrelevant conversations will be disregarded. In fact, even though Lamberth, if I recall, rejected a few applications years back due to failure to seek reauthorization or incompetent affidavits, the records show that applications have either never or almost never been rejected substantively. So that's one small possibility, but, interestingly, the President has not even hinted at such "exigent circumstances", as lawyers call that argument. He has not even hinted at any holes in FISA that jeopardize security. He has just asserted plenary surveillance authority, semi-Monarchial powers inconsistent with Constitutional government (and not for the first time, I might add). Query, if he already has such power, why agitate to reauthorize the Patriot Act, which is then arguably superfluous, as it grants no power he does not already have.

It really is just about impossible to come up with any fact that will support the President's position - it's really a pure question of law. At least that's how the President is defending it. That's the real problem with Hewitt's argument - it makes arguments that the President himself is not making. He is not arguing that here are facts that support this unconventional assertion of power - he is saying he has that power, and that it cannot be checked or reviewed. Hugh is making arguments the President isn't.

The only other possible argument is that this is overseas surveillance of citizens, under the auspices of foreign intelligence, and our citizens lose their expectations of privacy in that circumstance. But that also makes no sense, as then there would be no argument about NSA taps, only about our right to review other taps. So, again, hard to see how Hugh's argument can make sense.

Hugh's argument is really this - Congress told the President to fight Al Queda, and they didn't specifically prohibit domestic surveillance without judicial review. As noted previously, that makes no sense. You don't presume that a general grant of power permits abrogation of protections in a source of higher law (the Constitution), and even if you did, the citizens are the real party in interest. Plus, it makes the Patriot Act superfluous, for the reasons set forth above. Hugh's argument makes no sense

The case you cited has an incredibly significant distinction, to wit:

The Defendant seeks suppression of the evidence which was seized during the warrantless search of his home in Kenya and the fruits thereof. In addition, he seeks the suppression of evidence derived from electronic surveillance of several telephone lines over which his conversations were recorded, including the telephone for his Nairobi residence and his cellular phone. The Defendant also asks that the Court hold a hearing with respect to the validity of the surveillance and the search.

But that's not the point being argued about here - the President is claiming the ability to conduct domestic Surveillance. Look at how the Vcourt frames the issue

El-Hage's suppression motion raises significant issues of first impression concerning the applicability of the full panoply of the Fourth Amendment to searches conducted abroad by the United
States for foreign intelligence purposes and which are directed at an American citizen believed to be an agent of a foreign power. Although numerous courts and Congress have dealt with searches in the
United States for foreign intelligence purposes and other courts have dealt with searches of foreigners abroad, we believe this to be the first case to raise the question whether an American citizen acting
Abroad on behalf of a foreign power may invoke the Fourth Amendment, and especially its warrant provision, to suppress evidence obtained by the United States in connection with intelligence gathering
operations.

Note that the Court felt that there were even some protections overseas, albeit lesser ones. (The President's position conradicts this statement - he says he never needs a warrant - solely his power - this case certainly shoots down that notion). BTW, I typed the above before reading this case . You will note that I acknowledged that there is the right to surveil overseas.

And I've read Reynolds enough to know better than to think he would ever post anything in this context (President under attack from Dems) that could have any credibility. He links to the opinion here, which is plainly inapposite. Again, let’s look at the issue
http://www.washingtonpost.com/wp-dyn/content/article/2005/12/16/AR2005121600021_pf.html

President Bush signed a secret order in 2002 authorizing the National Security Agency to eavesdrop on U.S. citizens and foreign nationals in the United States, despite previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night.

As anyone can see, the linked to case involves a completely different scenario. This is yet another example of why Glenn should never be taken seriously. He knows that many will look at his site for legal issues like this one, yet he deliberately cites a case addressing a wholly separate issue, solely to deceive. You will always be misled reading him - it's his purpose

 

[sodaseller]

So there is no confusion, let's make clear what the issue is not. 9/11 was perpetrated by sleeper cells, and ceratinly other such cells may be comprised of or aided by citizens. There is certainly the need for wiretaps. The question is whether the President can undertaps such wiretaps without ever involving a judge, even under FISA, whose proceeding are classified. FISA was created for just this purpose. To presume that this power should be exercised without review by a neutral magistrate undermines almost 800 years of Anglo-American jurisprudence.

Even if you are entrusting this judgment to a wise individual, its still tends to corrupt, as all abolute (unchecked) power does, as Lord Acton noted, referring to the paapcy, I might add . But in this case, you are entrusting that judgment to a group that has consistently misjudged every situation it has confronted inthis sphere