So What else in the US Constitution Doesn't Apply During a Self-Declared War?

[Manny]

You know, oh lead one, that you can bold anything you want, you can scream and yell that I left out context, but the fact doesn't change that the court of review, a post-FISA court of review, found that the President's ability to conduct warrantless wiretaps for purposes of acquiring foreign intelligence from non-US persons is inherent. The part you claim I left out asked if FISA expanded (i.e., made even bigger) the President's inherent (i.e., not subject to regulation by Congress) ability. Not only that, the court found that it did! The case against wiretaps becomes weaker, not stronger, by inclusion of the language you claim I left out intentionally.

What Gonzalez is talking about is that the authorization of force makes US-based agents of al Qaeda to be non-US persons under the statute. That is, the President's inherent power only applies to foreign powers and the agents of foreign powers; declaring al Qaeda to be such a power is what makes it clear that the taps of the US-based agents of it are allowable under the President's inherent abilities instead of under the expanded abilities written into FISA. Other non-national threats to US security (a violent drug cartel, for example) would not be a foreign power and thus the President might arguably not be able to order warrantless wiretaps of US-based agents of such threats. I believe that a FISA warrant would be required to tap the calls of US-based members or agents of Hamas, for example.

 

[WildCat]

You know, oh lead one, that you can bold anything you want, you can scream and yell that I left out context, but the fact doesn't change that the court of review, a post-FISA court of review, found that the President's ability to conduct warrantless wiretaps for purposes of acquiring foreign intelligence from non-US persons is inherent. The part you claim I left out asked if FISA expanded (i.e., made even bigger) the President's inherent (i.e., not subject to regulation by Congress) ability. Not only that, the court found that it did! The case against wiretaps becomes weaker, not stronger, by inclusion of the language you claim I left out intentionally.

That's the way I read it, I was waiting for someone better acquainted w/ the law to chime in, I thought I was missing something or going crazy but apparently not.

Where are the JREF lawyers when you need them?

 

[President Bush]

... the fact doesn't change that the court of review, a post-FISA court of review, found that the President's ability to conduct warrantless wiretaps for purposes of acquiring foreign intelligence from non-US persons is inherent.

Is that an Article II argument? From what I've read, the issue in the pre-FISA cases was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitions in this area cannot bind the Executive branch. That a President's Commander-in-Chief power should bring about a relaxed Fourth Amendment standard seems different from a claim that Article II makes Congressional regulation inoperative.

And just where did the FISA Court of Review rule that the president could authorize warrantless domestic electronic surveillance despite FISA's restrictions? In other words, where does the FISA Court of Review rule on the question (in the case they were reviewing, not Truong) of "the scope of that presidential authority and whether it extends to acts that would violate the provisions of FISA protecting U.S. persons from excessive government intrusion"?

Are you making the argument that what Bush did would have been legal if he had followed FISA, so it is still legal when he didn't follow FISA?

What Gonzalez is talking about...

A quick question. In the press briefing I quoted (which I assume is where your interpretation of what Gonzalez is talking about comes from) he says:

Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires. Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.

Does a resolution, such as the Use of Force resolution, provide statutory authority? I don't know, but what he said seems odd.

Another question: FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a Use of Force resolution would render FISA inapplicable?

... is that the authorization of force makes US-based agents of al Qaeda to be non-US persons under the statute. That is, the President's inherent power only applies to foreign powers and the agents of foreign powers; declaring al Qaeda to be such a power is what makes it clear that the taps of the US-based agents of it are allowable under the President's inherent abilities instead of under the expanded abilities written into FISA. Other non-national threats to US security (a violent drug cartel, for example) would not be a foreign power and thus the President might arguably not be able to order warrantless wiretaps of US-based agents of such threats. I believe that a FISA warrant would be required to tap the calls of US-based members or agents of Hamas, for example.

Inherent powers again. Article II again, right? But, again, aren't you really talking a Fourth Amendment argument?

As far as defining US-based agents of al Qaeda to be non-US persons, well, I'm all for it. Assuming that the persons defined as US-based agents of al Qaeda actually are.

The possibility of the President ordering wiretaps against people who are not legitimate targets of surveillance is one of the main reasons we have a FISA court.

 

[President Bush]

Where are the JREF lawyers when you need them?

Off suspending people for no good reason? But they may still know the difference between one conflated argument versus two distinct and separate ones.

And I'll ask you again. Is it your argument that that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power?

What's up with the Uniform Code of Military Justice in that case? Or the Posse Comitatus Act for that matter?

Why bother with the Authorization to Use Military Force? In some respects that limits the scope of force allowed.

Don't you find a claim of Presidential power to ignore all statutes regulating Presidential behavior from now until the end of Western Civilization kinda troubling?

 

[WildCat]

And I'll ask you again. Is it your argument that that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power?

Yes, though they could of course cut off funding I guess.

What's up with the Uniform Code of Military Justice in that case?

The POTUS is a civilian, so that doesn't apply.

Or the Posse Comitatus Act for that matter?

Same thing, the NSA is not the military and is not a law enforcement agency besides.

Why bother with the Authorization to Use Military Force? In some respects that limits the scope of force allowed.

I think that this is legally the same thing as a declaration of war per the Constitution.

Don't you find a claim of Presidential power to ignore all statutes regulating Presidential behavior from now until the end of Western Civilization kinda troubling?

Who's claiming that? I'm only claiming that Congress cannot infringe on powers granted to the POTUS in the Constitution.

I'll remind you once more that I'm not a lawyer and my only law education was a business law class in college 16 years ago, so YMMV. And the SCOTUS may well have the final say in all this.

 

[President Bush]

So you say that that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power? Okay...

The Uniform Code of Military Justice is a Congressional code of military criminal law. Sounds like it might limit the President's Commander-in-Chief powers to me.

Anyhow, I'll try to keep it easy for you. Though if you had a business law class in college you've had more law education than I...



Does the President have the (legal) authority to order someone in the military to commit an offense under the UCMJ? Like murder, torture or rape? No, he doesn't.

FISA provides general rules for governing certain operations of the NSA. And it defines the offenses when those rules are violated.

Does the President have the (legal) authority to order someone in the NSA to commit a crime under FISA regulations? No, he doesn't.



As to my asking if you found a claim of Presidential power to ignore all statutes regulating Presidential behavior from now until the end of Western Civilization kinda troubling... well, we'll see what happens. Congress may take issue over a Executive claim to have inherent right to ignore duly enacted law.

And the SCOTUS may get to rule on whether executive branch action can violate federal statutory law without violating the constitution. That they didn't violate the Constitution will probably be the defense the administration falls back on. What I've read indicates that the President clearly broke the law concerning FISA statutes.

 

[Random]

You know, oh lead one, that you can bold anything you want, you can scream and yell that I left out context, but the fact doesn't change that the court of review, a post-FISA court of review, found that the President's ability to conduct warrantless wiretaps for purposes of acquiring foreign intelligence from non-US persons is inherent. The part you claim I left out asked if FISA expanded (i.e., made even bigger) the President's inherent (i.e., not subject to regulation by Congress) ability. Not only that, the court found that it did! The case against wiretaps becomes weaker, not stronger, by inclusion of the language you claim I left out intentionally.

I must have missed something. When was the President’s authority to conduct warrantless wiretaps okayed by a court post-FISA? It wasn’t the Truong case, because that case was based on what the law was when the events happened (pre-FISA), not when the case reached the courts (post-FISA).

 

[specious_reasons]

No it doesn't. Packet switching is merely a protocol...and an old one at that. Asynchronous Transfer Method (ATM) is the latest. It's merely a layered protocol for carrying digital information. You don't need to decrypt it. All you need is a protocol analyzer that can capture data packets and reassemble them. If a circuit is passing through a digital automatic cross-connect system you don't even need that. I can go into MCI's secure intranet; log into a DACCS and latch an automatic test-head into the circuit. It's my job; I do it all the time. I can call up a DACCS in Hawaii right now and break out a DS3 lock in a test head; place a T3 loop on the circuit in Guam and run a bit error rate test(BERT) over the 45MB bandwidth...all from an office in DC.

Although I can monitor and test at the transport layer I can't read traffic when I monitor...just framing bits...1's and 0's in a B3ZS framing pattern.

It wouldn't be too hard for someone like me to read traffic if they cared to...but they'd have to know how the distant end mux was channelized. Easy enough for NSA...piece of cake....but a truly encrypted circuit is another thing. Even NSA might not crack an encryptor that's re-keyed every 24 hours. The circuits we see that on are almost 100% gov't owned though...

-z

"Decrypted" is probably just the wrong word. The message has to be assembled and decoded, for certain, just like you said.

What you describe, Rik, might make it seem easier for someone with your access to acquire someone's internet communications than it really is. There's a lot of equipment involved with such a thing, and it's not DS3 test sets and protocol analyzers.

Not that much more, though, especially when you have cash like the NSA, and you know who you're looking for, and how they ar connected to the network.

Although... if individual data packets being sent are being sent via a secure server, these packets are encrypted. I don't think most popular Web mailers use encryption. One would presume those with a secrecy (or privacy) agenda would think of such things.

 

[rikzilla]

Thanks for the info, rikzilla.

Hey, I found this.

You took the red herring and missed the best part. Look at the tadiran url carefully. .co.il Tadiran is Israeli owned. The conspiracy theory amongst many techies I know is that there's a backdoor for Mossad built right into every unit they sell...and these things sell very well world-wide.

I ain't sayin' nothing...but ...hey...it's possible.

-z

 

[Random]

Who's claiming that? I'm only claiming that Congress cannot infringe on powers granted to the POTUS in the Constitution.

The argument that Congress can pass no law limiting the President’s power faces a bit of a problem when you read Article II of the Constitution and see that the President has to obey all the laws set down by Congress. So what happens if Congress does pass a law limiting the powers of the President?

The correct answer is that the President either obeys the law, petitions for the law to be changed, or challenges the constitutionality of the law in court. Bush’s answer is that he writes up his own super-duper-special law just for himself and his bestest, bestest friends and ignores those doodie-heads in Congress. You would be hard-pressed to find a legal scholar who says the President has the authority to ignore laws laid down by Congress.

 

[WildCat]

The argument that Congress can pass no law limiting the President’s power faces a bit of a problem when you read Article II of the Constitution and see that the President has to obey all the laws set down by Congress. So what happens if Congress does pass a law limiting the powers of the President?

The correct answer is that the President either obeys the law, petitions for the law to be changed, or challenges the constitutionality of the law in court. Bush’s answer is that he writes up his own super-duper-special law just for himself and his bestest, bestest friends and ignores those doodie-heads in Congress. You would be hard-pressed to find a legal scholar who says the President has the authority to ignore laws laid down by Congress.

If you read the Truong transcript here, you'd see that the court interpreted that as increasing the powers of the POTUS, so that argument is moot.

 

[WildCat]

So you say that that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power? Okay...

The Uniform Code of Military Justice is a Congressional code of military criminal law. Sounds like it might limit the President's Commander-in-Chief powers to me.

Anyhow, I'll try to keep it easy for you. Though if you had a business law class in college you've had more law education than I...

95% of that was agency law, anti-trust law, and anti-discrimination law - not really applicable here!

Does the President have the (legal) authority to order someone in the military to commit an offense under the UCMJ? Like murder, torture or rape? No, he doesn't.

Agreed, but that's why we have the NSA and CIA.

FISA provides general rules for governing certain operations of the NSA. And it defines the offenses when those rules are violated.

Does the President have the (legal) authority to order someone in the NSA to commit a crime under FISA regulations? No, he doesn't.

Depends on the "crime" and how you define that, I guess.

As to my asking if you found a claim of Presidential power to ignore all statutes regulating Presidential behavior from now until the end of Western Civilization kinda troubling... well, we'll see what happens. Congress may take issue over a Executive claim to have inherent right to ignore duly enacted law.

And the POTUS may take issue w/ Congress infringing on the powers granted to him under the Constitution.

There's a reason that the POTUS is Commander-in-Chief and not the Congress. Gets a bit confusing to have hundreds of Commander-in-Chiefs in a time of war, which changes their goals according to the latest opinion poll.

And the SCOTUS may get to rule on whether executive branch action can violate federal statutory law without violating the constitution. That they didn't violate the Constitution will probably be the defense the administration falls back on. What I've read indicates that the President clearly broke the law concerning FISA statutes.

No, they may rule on this specific case, not the broad issue you said - that answer is clearly "no". And they'll only rule, IMHO, if the circuit court comes to an opinion they disagree with.

 

[fishbob]

What Gonzalez is talking about is that the authorization of force makes US-based agents of al Qaeda to be non-US persons under the statute. That is, the President's inherent power only applies to foreign powers and the agents of foreign powers; declaring al Qaeda to be such a power is what makes it clear that the taps of the US-based agents of it are allowable under the President's inherent abilities instead of under the expanded abilities written into FISA. Other non-national threats to US security (a violent drug cartel, for example) would not be a foreign power and thus the President might arguably not be able to order warrantless wiretaps of US-based agents of such threats. I believe that a FISA warrant would be required to tap the calls of US-based members or agents of Hamas, for example.

This sounds like you are saying that the Prez can declare who he wants, unchecked and unbalanced, to be 'non-US persons' - then he can go after them without a FISA warrent, again unchecked and unbalanced. This certainly seems to be a home-made expansion of presidential powers.

 

[President Bush]

95% of that was agency law, anti-trust law, and anti-discrimination law - not really applicable here!


Agreed, but that's why we have the NSA and CIA.


Depends on the "crime" and how you define that, I guess.


And the POTUS may take issue w/ Congress infringing on the powers granted to him under the Constitution.

There's a reason that the POTUS is Commander-in-Chief and not the Congress. Gets a bit confusing to have hundreds of Commander-in-Chiefs in a time of war, which changes their goals according to the latest opinion poll.


No, they may rule on this specific case, not the broad issue you said - that answer is clearly "no". And they'll only rule, IMHO, if the circuit court comes to an opinion they disagree with.

Wildcat, I can't make sense out of your post. Could you please try again to address the specific questions I asked?


In the meantime, what you said to Random is confused. If your argument is that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power, and you mean to quote Truong to illustrate that case, try to remember: the court in that case addressed the question whether the Constitution bars warrantless surveillance absent Congressional action. Not whether Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power. Please try to keep that in mind.

The argument that the President has inherent authority to conduct warrantless NSA monitoring that the Congress has no power to infringe upon is an Article II argument.

Folks that try to prove an Article II argument - that the President's Commander in Chief power makes Congressional regulation inoperative - with a Fourth Amendment case - that the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment - remind me of those New Age binge-vomiting asshats we all laugh at around here.

 

[hammegk]

Folks that [u]try to prove an Article II argument[/u] - that the President's Commander in Chief power makes Congressional regulation inoperative - [u]with a Fourth Amendment case[/u] - that the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment - remind me of those New Age binge-vomiting asshats we all laugh at around here.[/QUOTE]

Constitution:
[quote]:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; ... [/quote]


FISA doesn't appear to abrogate "that the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment" with the emphasis on foreign, and sfaics the actual argument is the 4th amendment protection clause of FISA "(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" on warrantless activities vs "foreign intelligence" and duties by Oath of Office.

Where am I wrong?

 

[Mycroft]

So you say that that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power? Okay...

Congress can't just legislate away anything said by the Constitution. You need a Constitutional amendment to do that.

That's pretty simple, isn't it?

 

[President Bush]

FISA doesn't appear to abrogate "that the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment" with the emphasis on foreign, and sfaics the actual argument is the 4th amendment protection clause of FISA "(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party" on warrantless activities vs "foreign intelligence" and duties by Oath of Office.

Where am I wrong?

Dang ol' hammegk, man, tell you 'bout myself woowee turn ons ladies and back seats man sunsets fast cars man, yup love that CK1 like catnip, turn-offs uhuh women golfers man love that Bob Dylan like a rolling stone what'd he say, brief man myself yup dang ol' internet man. Go www.click click click naked chicks yup that's all me uhuh on the next biography man.

 

[hammegk]

Beats addressing my question, I guess. For a minute there, I thought you might try to make sense. My mistake.

 

[President Bush]

Congress can't just legislate away anything said by the Constitution. You need a Constitutional amendment to do that.

That's pretty simple, isn't it?

Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power shy of passing a Constitutional Amendment? Okay...

The Uniform Code of Military Justice is a Congressional code of military criminal law. I think that means written by the legislature. Sounds like it might even limit the President's Commander-in-Chief powers. But I honestly don´t remember which amendment that is.

Anyhow, does the President have the (legal) authority to order someone in the military to commit an offense under the UCMJ? Like murder, torture or rape? No, he doesn't.

FISA was also written by the legislature and, of course, signed into law by the executive. It provides general rules for governing certain operations of the NSA. And it defines the offenses when those rules are violated.

Does the President have the (legal) authority to order someone in the NSA to commit a crime under FISA regulations? No, he doesn't.

This ain´t rocket science.

 

[President Bush]

Beats addressing my question, I guess. For a minute there, I thought you might try to make sense. My mistake.

I really didn´t understand the question and assumed you were joking.