Gore on the erosion of constitutional balance

[gnome]

http://tinyurl.com/anews

 

[Manny]

Found a controlling legal authority, did he?

 

[WildCat]

Found a controlling legal authority, did he?

Yes, himself apparently. He must have learned about all this after his VP term was up, or he would have called Clinton on it.

 

[gnome]

Yes, himself apparently. He must have learned about all this after his VP term was up, or he would have called Clinton on it.

Enumerate what he could/should have called Clinton on?

I'll start with one: Extraordinary Rendition. That was not Bush's invention. I am as disgusted with Clinton for starting it as I am with Bush for continuing it.

Are there others?

 

[WildCat]

Enumerate what he could/should have called Clinton on?

I'll start with one: Extraordinary Rendition. That was not Bush's invention. I am as disgusted with Clinton for starting it as I am with Bush for continuing it.

Are there others?

He ordereed a search of a spy's home w/o a warrant. I'm in the middle of cooking right now, maybe someone else can post the details. If not I'll get back here.

 

[WildCat]

It was in the Aldrich Ames case, his home was searched w/o a warrant. The Clinton Admin. argued they didn't need one, and Ames never challenged the search in court.

 

[Luke T.]

At the outset, let me emphasize two very important points. First, the Department of Justice believes, and the case law supports, that the President has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the President may, as has been done, delegate this authority to the Attorney General.

Normally, the federal officer conducting the search is required to serve a copy of the warrant on the person whose property is being searched and to provide a written inventory of the property seized.

These rules would defeat the purposes and objectives of foreign intelligence searches, which are very different from searches to gather evidence of a crime. Physical searches to gather foreign intelligence depend on secrecy. If the existence of these searches were known to the foreign power targets, they would alter their activities to render the information useless. Accordingly, a notice requirement, such as exists in the criminal law, would be fatal.

The Department of Justice has consistently taken the position that the Fourth Amendment requires all searches to be reasonable, including those conducted for foreign intelligence purposes in the United States or against U.S. persons abroad. For the reasons I just mentioned, however, we believe that the warrant clause of the Fourth Amendment is inapplicable to such searches. We are satisfied, therefore, that Attorney General approval of foreign intelligence searches pursuant to the President’s delegation of authority in Executive order 12333 meets the requirements of the Constitution.

Testimony of Deputy Attorney General Jamie S. Gorelick before the U.S. House of Representatives Permanent Select Committee on Intelligence, July 14, 1944.

 

[Lurker]

It was in the Aldrich Ames case, his home was searched w/o a warrant. The Clinton Admin. argued they didn't need one, and Ames never challenged the search in court.

Wasn't that search done before FISA limited it? I mean, Bush and Clinton had different sets of laws to work within. The Aldrich search occurred BEFORE the FISA mandated warrants for it. But Bush came after that mandate.

Lurker

 

[Luke T.]

Executive Order 12333

 

[Luke T.]

Wasn't that search done before FISA limited it?

Yes.

 

[Lurker]

Yes.

So people saying "Clinton did it too" are A**hats.

Not that I am a fan of this "executive privilige" myself. I think all searches should require warrants and am not happy that Clinton felt he had this loophole.

Lurker

 

[gnome]

You may manage to get me to agree that Clinton shouldn't have done that either... but does it change the point?

 

[Manny]

Yes.

How's that? FISA is a 1978 law. It was expanded in the USA PATRIOT Act but I'm not aware of legislation which materially changed it between the Ames investigation and PATRIOT.

You may manage to get me to agree that Clinton shouldn't have done that either... but does it change the point?

Of the argument over the searches themselves? At least a little. It establishes precedent. It does not settle the argument, though.

Of this thread? Absolutely. This thread is not about the program, it's about Al Gore's opinion of the program. Al Gore's opinion is clearly that his boss could do things as President that his opponent cannot. His argument is, frankly, despicable.

 

[Cylinder]

So people saying "Clinton did it too" are A**hats.

Absent FISA authorization, searches under the auspices of regular law enforcement would be left to regularly-constituted federal courts. The requirement for a search did not magically appear when President Bush took office.

 

[Snide]

How's that? FISA is a 1978 law. It was expanded in the USA PATRIOT Act but I'm not aware of legislation which materially changed it between the Ames investigation and PATRIOT.

You may not like the source, but Media Matters has been harping on so-called "Clinton did it too" critics lately. Check here: http://mediamatters.org/items/200601170014

But the unwarranted physical searches conducted by the FBI in the Ames case occurred in 1993, before the 1995 FISA amendment requiring warrants for physical searches, as Media Matters for America has noted. Moreover, there is ample evidence that the Clinton administration's investigation of Ames did comply with the FISA statutes governing wiretapping -- the very laws that the Bush administration chose to ignore.

 

[Mark]

Well into Bush's second term, and the best defense the apologists can come up with for his un-American shenanigans is an inaccurate, "Well, Clinton did it, too."

So, in other words, they defend their guy by comparing him to the president they hate more than anything else in the world. Life is weird.

 

[Lurker]

How's that? FISA is a 1978 law. It was expanded in the USA PATRIOT Act but I'm not aware of legislation which materially changed it between the Ames investigation and PATRIOT.

It was altered in 1995 to include warrant requirements.

Of this thread? Absolutely. This thread is not about the program, it's about Al Gore's opinion of the program. Al Gore's opinion is clearly that his boss could do things as President that his opponent cannot. His argument is, frankly, despicable.

Actually, the FISA law was different for Clinton than Bush so Gore is correct. You are misinformed.

Lurker

 

[Lurker]

Absent FISA authorization, searches under the auspices of regular law enforcement would be left to regularly-constituted federal courts. The requirement for a search did not magically appear when President Bush took office.

I presume you meant "warrant" in that last sentence instead of "search".

I agree. Yet there seems to be a sizeable group of people, namely conservatives, arguing that the President does not need search warrants due to some sort of nebulous executive privilige. I think Clinton was wrong for his warrantless searches as well. But Bush is President now and his warrantless searches concern me a bit more since he vows to continue them.

Lurker

 

[Luke T.]

How's that? FISA is a 1978 law. It was expanded in the USA PATRIOT Act but I'm not aware of legislation which materially changed it between the Ames investigation and PATRIOT.

From the 1994 Gorelick testimony I linked above:

Second, the Administration and the Attorney General support, in principle, legislation establishing judicial warrant procedures under the Foreign Intelligence Surveillance Act for physical searches undertaken for intelligence purposes. However, whether specific legislation on this subject is desirable for the practical benefits it might add to intelligence collection, or undesirable as too much of a restriction on the President’s authority to collect intelligence necessary for the national security, depends on how the legislation is crafted.

 

[Luke T.]

Executive Order 12949 dated Feb 13, 1995.

By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801,
et seq.), as amended by Public Law 103- 359 (relevant section quoted below - Luke T.), and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

A history of FISA

After Congress amended the FISA to authorize secret physical searches, the Supreme Court ruled in a different context that the Constitution requires the government to give individuals notice that their homes have been searched, as the civil liberties community had argued that it did. Squillacote v. United States, 532 U.S. 971 (2001).

The Supreme Court has not yet ruled whether this notice requirement means that secret searches under the FISA are unconstitutional. See, Center for National Security Studies, Amicus Brief in US v. Squillacote, March 20, 1998.

Counterintelligence and Security Enhancements Act of 1994, Public Law 103-359

Amends the Foreign Intelligence Surveillance Act of 1978 to add a new title III concerning physical searches within the United States for foreign intelligence purposes. Grants the Foreign Intelligence Surveillance Court jurisdiction to hear applications for orders approving a physical search in order to obtain foreign intelligence information anywhere within the United States. Provides an exception and allows for the review of denied applications under other provisions of the Act. Requires applications to be approved by the Attorney and to include: (1) the identity of the target of the search and the information sought to be seized; and (2) a certification that the information sought is foreign intelligence information which cannot be obtained by normal investigative techniques. Outlines information required to be included within a court order approving such a search. Limits the period for conducting an approved search, with extensions under certain circumstances. Allows the Attorney General, in emergency circumstances, to authorize the execution of an emergency physical search, as long as an application for such search is submitted to a judge having jurisdiction within 24 hours after such search. Prohibits information obtained from such a search from being used against the person involved if the proceeding application is denied.