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

[President Bush]

... the issue facing both Truong and the FISA Court of appeals is, from their perspective, the constitutionality of wiretaps which are for the purposes of collecting foreign intelligence and which are subsequently used for other purposes -- specifically crime-fighting. The constitutional issue being decided is their admissibility in court or other usefulness, not the president's ability to do the wiretap in the first place.

As it happens a similar issue appears to have arisen in the current case -- one of the FISA judges became concerned that the extra-FISA court wiretaps were being used to gain FISA warrants and she did not feel that that was a proper use of the fruits of such taps. Again, she was not, apparently, objecting to the wiretaps in the first place but rather to their use to attain a FISA warrant, which in turn stands as a substitute for a 4th Amendment warrant for purposes of admissibility in Federal court. But no court has argued that the President doesn't have inherent authority to order such wiretaps, nor did Congress, as John Dean alleges, make the existence of such wiretaps an issue during President Nixon's proposed impeachment -- it was the use of the fruits of such taps which became, properly, a constitutional issue.

You haven't addressed what I said. Earlier, you protested the Media Matters article's point that some conservative media figures are claiming that the president could authorize warrantless domestic electronic surveillance - despite FISA's restrictions - citing opinion by the 2002 FISA Court of Review. And that, contrary to these media figures' suggestions, that FISA opinion does not even address that question.

You quoted selectively from the FISA Court of Review to give the impression that they had addressed that question:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

Your quote was snipped from a larger context:

It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

Again, the Truong case had dealt with the President’s power in the absence of a congressional statute. The question before the FISA Court Of Review was the opposite, dealing with the President's power in working with here-and-now concreteness of a congressional statute.

Did you choose this out-of-context quote from the FISA Court of Review on your own after having read the case, or did you get it as a talking point from someone else. Considering what you said about bad sources here I'd find it odd were it the latter.

I'm no constitutional scholar, but I doubt that anyone apparently just making stuff up when the law isn't on their side is either.

 

[fishbob]

Or does this only apply to Roe v. Wade?

So - not in the constitution itself, but in some of the court rulings since. OK.

Wow - a Zinger. I guess this means you think you win.

 

[Beer Monkey]

It's part of the President's powers as Commander-In-Chief, and this has been supported by numerous court decisions going back long before Bush was even born. FDR ordered wiretaps before there were even any laws allowing them in criminal investigations.

So it is your position that the POTUS can legally wiretap whoever he likes, whenever he feels like, for whatever reason?

Or do you feel that he can only do it if as long as he makes unverified (retroactive, once caught) claims that only 'terrorists' were wiretapped?

And if you choose the latter, what kinds of checks and balance should be used to ensure that the constraints are being followed? Not courts or due process, obviously.

Please, I'd love to know.

 

[President Bush]

At any rate, the issue facing both Truong and the FISA Court of appeals is, from their perspective, the constitutionality of wiretaps which are for the purposes of collecting foreign intelligence and which are subsequently used for other purposes -- specifically crime-fighting. The constitutional issue being decided is their admissibility in court or other usefulness, not the president's ability to do the wiretap in the first place.

As it happens a similar issue appears to have arisen in the current case -- one of the FISA judges became concerned that the extra-FISA court wiretaps were being used to gain FISA warrants and she did not feel that that was a proper use of the fruits of such taps. Again, she was not, apparently, objecting to the wiretaps in the first place but rather to their use to attain a FISA warrant, which in turn stands as a substitute for a 4th Amendment warrant for purposes of admissibility in Federal court. But no court has argued that the President doesn't have inherent authority to order such wiretaps...

Hope you'll reply to my previous post. In the meantime, I'll respond to your last...

Again, Truong established that conducting warrantless surveillance is within the President's Article II powers in the absence of an administering congressional statute. FISA constitutes that administering congressional statute.

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

Is the secret NSA surveillance program legal? Is it constitutional? Does it violate federal statutory law? Guess we're gonna find out...

Though almost anyone with the capability to listen in on something that interests them will, no matter what. Like law enforcement wire tapping. The issue for them is when can they get a wiretap for a discussion they believe will become admissible evidence against a defendant? If they didn't get the warrant, it's inadmissible.

But this is beyond wire tapping, anyhow. Digital packet-based electronic information that's being NSA intercepted has to be decrypted before anyone knows whether they have the legal authority to read it. Doesn't it?

If the NSA has the legal power to monitor any digital communications at all would seem to mean they have the legal power to read all digital communications.

 

[Melendwyr]

If the NSA has the legal power to monitor any digital communications at all would seem to mean they have the legal power to read all digital communications.

That's why it's time that common people started using encryption.

We'll see whether "Free Speech" will survive the existence of unbreakable ciphers...

 

[President Bush]

...the issue facing both Truong and the FISA Court of appeals is, from their perspective, the constitutionality of wiretaps which are for the purposes of collecting foreign intelligence and which are subsequently used for other purposes -- specifically crime-fighting. The constitutional issue being decided is their admissibility in court or other usefulness, not the president's ability to do the wiretap in the first place.

In Truong (as well as Butenko and Keith) I've read that the issue the Courts were talking about was whether the Constitution bars warrantless surveillance absent Congressional action.

In 1978, Congress enacted FISA (in response to the Keith case); under which 50 U.S.C. 1809 prohibits "electronic surveillance" except as authorized by statutory law.

Did the NSA surveillance program violate the basic prohibition of 50 U.S.C. 1809: intentionally conducting electronic surveillance except as authorized by statutory law?

 

[WildCat]

So it is your position that the POTUS can legally wiretap whoever he likes, whenever he feels like, for whatever reason?

I've never claimed that. He can do it only in his capacity of Commander-in-Chief. He cannot do it solely to pursue criminal charges. Where it becomes unclear is if, in the course of gathering intelligence, they uncover a criminal plot they wish to pursue in criminal courts.

Or do you feel that he can only do it if as long as he makes unverified (retroactive, once caught) claims that only 'terrorists' were wiretapped?

And if you choose the latter, what kinds of checks and balance should be used to ensure that the constraints are being followed? Not courts or due process, obviously.

Please, I'd love to know.

It is my understanding that the Senate Intelligence Committe has complete oversight in this matter. They have acces to information on any and all such wire taps and there are processes in place to conduct investigations into suspected abuses.

 

[WildCat]

Again, Truong established that conducting warrantless surveillance is within the President's Article II powers in the absence of an administering congressional statute. FISA constitutes that administering congressional statute.

But if it's within the POTUS Article II powers, it cannot be taken away or restricted by an act of Congress, any more than Congress can remove the POTUS's veto power through statute. The "in the absence of Congressional statute" part is a non-sequitor, it seems.

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

It's also the reason we have a Senate Intelligence Committe. The SIC has full access to all such wire taps/searches in their oversight function.

Is the secret NSA surveillance program legal? Is it constitutional? Does it violate federal statutory law? Guess we're gonna find out...

We will, and I'd bet the answere is "yes".

Though almost anyone with the capability to listen in on something that interests them will, no matter what. Like law enforcement wire tapping. The issue for them is when can they get a wiretap for a discussion they believe will become admissible evidence against a defendant? If they didn't get the warrant, it's inadmissible.

But this is beyond wire tapping, anyhow. Digital packet-based electronic information that's being NSA intercepted has to be decrypted before anyone knows whether they have the legal authority to read it. Doesn't it?

If the NSA has the legal power to monitor any digital communications at all would seem to mean they have the legal power to read all digital communications.

The FBI has been monitoring emails for years (pre-Bush, BTW), and it is no secret. I don't know what the legal issues are w/ that.

 

[President Bush]

But if it's within the POTUS Article II powers, it cannot be taken away or restricted by an act of Congress, any more than Congress can remove the POTUS's veto power through statute.

Can you show any caselaw supporting this giving the President inherent authority to conduct NSA surveillance outside of the law?

The "in the absence of Congressional statute" part is a non-sequitor, it seems.

(Now) Chief Justice John G. Roberts had this to say on the subject of Congress possibly lacking authority to set the terms and conditions under which the president may exercise his authority:

Senator, I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the constitution and statutes. Now, there often arise issues where there's a conflict between the legislature and the executive over an exercise of executive authority -- asserted executive authority. The framework for analyzing that is in the Youngstown Sheet and Tube case, the famous case coming out of President Truman's seizure of the steel mills....

... And the framework set forth in Justice Jackson's concurring opinion, which is the opinion that has sort of set the stage for subsequent cases, analyzes the issue in terms of one of three categories. If the president is acting in an area where Congress is supportive -- expressly supportive of his action -- the president's power is at its maximum. If the president is acting in an area such as you postulate under the Bybee memo where the president is acting contrary to congressional authority, what Justice Jackson said is the president's authority is at its lowest ebb. It consists solely of his authority under the Constitution, less whatever authority Congress has.

The bolding is mine and I am not quoting selectively to give a false impression.
Any questions?

 

[varwoche]

It's also the reason we have a Senate Intelligence Committe. The SIC has full access to all such wire taps/searches in their oversight function.

False.

Former Florida Sen. Bob Graham reiterated Tuesday that the Bush administration never briefed him, as chairman of the Senate Intelligence Committee, about a covert domestic wiretap program -- and suggested the possibility that it grew out of a creep of presidential authority.''

article

 

[WildCat]

False.
article

BS. Graham is either lying or was derelict in his duty as Chairman. According to the article, Sen. Rockefeller was aware of it, why not Graham?

 

[varwoche]

BS. Graham is either lying or was derelict in his duty as Chairman. According to the article, Sen. Rockefeller was aware of it, why not Graham?

BS from the GOP former chairman of the committee? Because you say so?

 

[WildCat]

BS from the GOP former chairman of the committee? Because you say so?

How is it possible that Rockefeller knew but not Graham?

Are you claiming that there are secrets the SIC is not privy to?

 

[President Bush]

But if it's within the POTUS Article II powers, it cannot be taken away or restricted by an act of Congress, any more than Congress can remove the POTUS's veto power through statute.

Is 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?

 

[President Bush]

I forgot one thing. Not only the Legislature, but the Executive agreed to enact FISA, a statute regulating warrantless surveillance. And FISA specifically repealed prior provision of law preserving virtually unbounded Executive discretion.

Once again, on the subject of Congressional authority to set the terms and conditions under which the President may exercise his authority versus an Administration's assertion of Executive authority, I'll quote from the Youngstown steel seizure case (when a President claimed that war had changed everything and that the emergency justified his actions as Commander-in-Chief) and from the concurring opinion of Justice Jackson.

Situation #1

When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said to personifty the federal sovereignty.

Situation #2

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent power, but there is a zone of twilight in which he and Congress may have concurrent authority or in which the distribution of authority is uncertain. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

Situation #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. 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.

I'd recommend to pay particular attention to Situation #3.

 

[varwoche]

Are you claiming that there are secrets the SIC is not privy to?

Clearly. And here's more evidence for you to consider...

Senator Feinstein, member of SIC:
The fact that this has been going on since 2002 -- it is now the end of 2005. Maybe 8 people in these 2 bodies in some way, shape, or form may have known something about it, but the rest of us on the Intelligence Committees did not.

(I erred in my prev post -- Graham is a dem.)

 

[rikzilla]

But this is beyond wire tapping, anyhow. Digital packet-based electronic information that's being NSA intercepted has to be decrypted before anyone knows whether they have the legal authority to read it. Doesn't it?

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

BTW: A tidbit for the conspiracy theorists out there: Most of the domestic network DACCS owned by MCI are built by Tadiran. Have fun with that...

 

[President Bush]

A tidbit for the conspiracy theorists out there: Most of the domestic network DACCS owned by MCI are built by Tadiran. Have fun with that...

Thanks for the info, rikzilla.

Hey, I found this.

Tadiran Communications' products address every echelon, from the individual fighting soldier through the squad and platoon up to the division and corps levels.

 

[President Bush]

Looks like the Article II defense will not be a good one to use in court. Better tell my White House counsel, Gonzalez. He was there when I authorized this.

Oh, that's right. He's Attorney General now.

 

[President Bush]

I'd hoped that manny might respond to my saying that he'd posted a sloppily deliberate misread quote from the FISA Court of Review appeals case in his slam of the Media Matters article posted earlier in this thread. I had wondered aloud whether this out-of-context quote was selected by manny himself after he'd read the case or if he got it as a talking point from someone else:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

Turns out that this quote does seem to be a talking point with some conservative observers. Manny, have you started something?

John Schmidt at the Chicago Tribune said:

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

http://www.chicagotribune.com/news/...3632.story?coll=chi-newsopinioncommentary-hed

Rich Lowry of the Nationalreviewonline said:

Every administration, liberal or conservative, has claimed this warrantless surveillance power, and no court has ever denied it. The FISA court of review explained, citing the 14th Circuit's 1980 decision in a case involving the surveillance of a Vietnamese spy named David Truong, "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The court added, "We take it for granted that the President does have that authority."

Likely there are more, but I'll let it go. Failure to mention bothersome little facts that do not support one's point of view bores me.

Anyhow, I think the myth that the FISA Court of Review specifically said Congress cannot encroach upon the President's constitutional authority (through FISA provisions) needs debunking.

Again, that same quote complete within context...

It will be recalled that the case that set forth the primary purpose test as constitutionally required was Truong. The Fourth Circuit thought that Keith’s balancing standard implied the adoption of the primary purpose test. We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

While the phrasing may seem odd, the words FISA could not encroach on the President’s constitutional power refer to the situation faced by the Truong court “in the case before it.” FISA had not been enacted at the time the events and facts involved in that case took place which is why the President’s constitutional power in the absence of congressional action was the matter at issue in Truong. That’s why in cases subsequent to the passage of FISA “the question before us is the reverse” as the FISA court put it.

If you don't believe me when I say that this Court could not (legally) claim that the president could authorize warrantless domestic electronic surveillance despite FISA's restrictions, would you believe Attorney General Gonzalez?

The President has authorized a program to engage in electronic surveillance of a particular kind, and this would be the intercepts of contents of communications where one of the -- one party to the communication is outside the United States. And this is a very important point -- people are running around saying that the United States is somehow spying on American citizens calling their neighbors. Very, very important to understand that one party to the communication has to be outside the United States.

Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda. We view these authorities as authorities to confront the enemy in which the United States is at war with -- and that is al Qaeda and those who are supporting or affiliated with al Qaeda.

What we're trying to do is learn of communications, back and forth, from within the United States to overseas with members of al Qaeda. And that's what this program is about.

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.

(Gonzalez invoking the AUMF to justify bypassing FISA is a whole other matter unrelated to the point I'm making here. It has nothing to do with the FISA Court ruling being quoted.)

To say that the FISA Court of Review somehow ruled that FISA could not provide general rules for governing the operations of the NSA and, therefore, modify the President’s constitutional power is just making stuff up.