Bush Orders Domestic Spying. - Page 4

Monk · 12-19-2005, 09:57 AM

Quote:

Originally Posted by shek

Here's some information on FISA and the FISC from a critic of the setup:

http://fly.hiwaay.net/~pspoole/fiscshort.html

And here's a viewpoint (from a conservative blog) that argues that "the president has the power to conduct warantless [sic] 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." He goes on to state that FISA cannot limit this presidential power.

http://hughhewitt.com/archives/2005/...hp#000808#more

Interesting stuff. We'll see where the road goes on this one.

What this guy is doing is just stating the doctrine of executive privelege for our benefit. Under the doctrine, the President's powers are literally limitless. The LBJ-McNamara admin and the Nixon-Kissinger admin used it to great effect.

mtnbiker · 12-19-2005, 19:50 PM

Quote:

http://mediafilter.org/caq/Caq53.court.html

".....signed Executive Order 12949 on February 9, the frightening mandate of the FISA, court was greatly expanded: It now has legal authority to approve black-bag operations to authorize Department of Justice (DoJ) requests to conduct physical as well as electronic searches, without obtaining a warrant in open court, without notifying the subject, without providing an inventory of items seized. The targets need not be under suspicion of committing a crime, but may be investigated when probable cause results solely from their associations or status: for example, belonging to, or aiding and abetting organizations deemed to pose a threat to U.S. national security. Furthermore, despite a lowered standard for applying the Fourth Amendment against unreasonable search and seizure than is necessary in other U.S. courts, under the 1995 expansion, evidence gathered by the FISA court may now be used in criminal trials. Previously, evidence was collected and stockpiled solely for intelligence purposes."

that was President Clinton by the way

Quote:

Granting new powers to the FISA court was accomplished quietly and treated as a non-event in the national media. The lack of reporting was somehow fitting, though, following as it did the silent debate last year when Congress rubberstamped the annual Intelligence Authorization Act.

Some legal minds found the whole exercise positively refreshing. The fact that this was done with a minimum of fuss and posturing on both sides, and without having to have a debate that tries to roll up the corners of classified information is very impressive, cheered former NSA General Counsel Stewart Baker.

Reportedly, the Clinton administration had not always been enthusiastic about expanding the court's powers. Like its predecessors, it operated under the assumption that the executive already had inherent authority to exempt itself from Fourth Amendment constraints and could order warrantless searches to protect national security. Nonetheless, the government avoided allowing this inherent authority to be tested in the courts.

This is all much todo about nothing.

**Shek** · 12-20-2005, 11:10 AM

Washington Post
December 20, 2005
Pg. 31

Vital Presidential Power

By William Kristol and Gary Schmitt

A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones -- phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what's a president to do?

If the president were taking the advice offered by some politicians and pundits in recent days, he would order the attorney general to go to the Foreign Intelligence Surveillance Court. The attorney general would ask that panel of federal judges for a warrant under the Foreign Intelligence Surveillance Act (FISA) to begin eavesdropping on those telephone numbers, to determine whether any individual associated with those numbers was involved in terrorist activities.

But the attorney general might have to tell the president he might well not be able to get that warrant. FISA requires the attorney general to convince the panel that there is "probable cause to believe" that the target of the surveillance is an agent of a foreign power or a terrorist. Yet where is the evidence to support such a finding? Who knows why the person seized in Pakistan was calling these people? Even terrorists make innocent calls and have relationships with folks who are not themselves terrorists.

The difficulty with FISA is the standard it imposes for obtaining a warrant aimed at a "U.S. person" -- a U.S. citizen or a legal alien: The standard suggests that, for all practical purposes, the Justice Department must already have in hand evidence that someone is a problem before they seek a warrant.

Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.

This is presumably one reason why President Bush decided that national security required that he not simply follow the strictures of the 1978 foreign intelligence act, and, indeed, it reveals why the issue of executive power and the law in our constitutional order is more complicated than the current debate would suggest. It is not easy to answer the question whether the president, acting in this gray area, is "breaking the law." It is not easy because the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional.

Following that logic, the Supreme Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence -- here and abroad -- as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and liberty are potentially at stake.) So Bush seems to have behaved as one would expect and want a president to behave. A key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new Constitution -- our Constitution -- created a unitary chief executive. That chief executive could, in times of war or emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens.

That is why the president uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution. Implicit in that oath is the Founders' recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war.

This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't. But to engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible.

William Kristol is editor of the Weekly Standard. Gary Schmitt is a resident scholar at the American Enterprise Institute.

**Shek** · 12-20-2005, 11:10 AM

Washington Post
December 20, 2005
Pg. 31

Why Didn't He Ask Congress?

By George F. Will

The president's authorization of domestic surveillance by the National Security Agency contravened a statute's clear language. Assuming that urgent facts convinced him that he should proceed anyway and on his own, what argument convinced him that he lawfully could?

Presumably the argument is that the president's implied powers as commander in chief, particularly with the nation under attack and some of the enemy within the gates, are not limited by statutes. A classified legal brief probably makes an argument akin to one Attorney General John Ashcroft made in 2002: "The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

Perhaps the brief argues, as its author, John Yoo -- now a professor of law at Berkeley but then a deputy assistant attorney general -- argued 14 days after Sept. 11, 2001, in a memorandum on "the president's constitutional authority to conduct military operations against terrorists and nations supporting them," that the president's constitutional power to take "military actions" is "plenary." The Oxford English Dictionary defines "plenary" as "complete, entire, perfect, not deficient in any element or respect."

The brief should be declassified and debated, beginning with this question: Who decides which tactics -- e.g., domestic surveillance -- should be considered part of taking "military actions''?

Without more information than can be publicly available concerning threats from enemies operating in America, the executive branch deserves considerable discretion in combating terrorist conspiracies using new technologies such as cell phones and the Internet. In September 2001, the president surely had sound reasons for desiring the surveillance capabilities at issue.

But did he have sound reasons for seizing them while giving only minimal information to, and having no formal complicity with, Congress? Perhaps. But Congress, if asked, almost certainly would have made such modifications of law as the president's plans required. Courts, too, would have been compliant. After all, on Sept. 14, 2001, Congress had unanimously declared that "the president has authority under the Constitution to take action to deter and prevent acts of international terrorism," and it had authorized "all necessary and appropriate force" against those involved in Sept. 11 or threatening future attacks.

For more than 500 years -- since the rise of nation-states and parliaments -- a preoccupation of Western political thought has been the problem of defining and confining executive power. The problem is expressed in the title of a brilliant book, "Taming the Prince: The Ambivalence of Modern Executive Power," by Harvey Mansfield, Harvard's conservative.

Particularly in time of war or the threat of it, government needs concentrated decisiveness -- a capacity for swift and nimble action that legislatures normally cannot manage. But the inescapable corollary of this need is the danger of arbitrary power.

Modern American conservatism grew in reaction against the New Deal's creation of the regulatory state, and the enlargement of the executive branch power that such a state entails. The intellectual vigor of conservatism was quickened by reaction against the Great Society and the aggrandizement of the modern presidency by Lyndon Johnson, whose aspiration was to complete the project begun by Franklin Roosevelt.

Because of what Alexander Hamilton praised as "energy in the executive," which often drives the growth of government, for years many conservatives were advocates of congressional supremacy. There were, they said, reasons why the Founders, having waged a revolutionary war against overbearing executive power, gave the legislative branch pride of place in Article I of the Constitution.

One reason was that Congress's cumbersomeness, which is a function of its fractiousness, is a virtue because it makes the government slow and difficult to move. But conservatives' wholesome wariness of presidential power has been a casualty of conservative presidents winning seven of the past 10 elections.

On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled.

Charles de Gaulle, a profound conservative, said of another such, Otto von Bismarck -- de Gaulle was thinking of Bismarck not pressing his advantage in 1870 in the Franco-Prussian War -- that genius sometimes consists of knowing when to stop. In peace and in war, but especially in the latter, presidents have pressed their institutional advantages to expand their powers to act without Congress. This president might look for occasions to stop pressing.

**Shek** · 12-20-2005, 16:04 PM

THE GORELICK WALL

It took me a few days to actually learn that Gorelick was an attorney for the Clinton Administration and not just a derrogatory term for the former VP

I was beginning to think that the conservative bloggers were going overboard on the partisan attacks

Anon · 12-20-2005, 16:23 PM

Gorelick is the dumbass that wrote the memo barring all US intel agencies from sharing info, and was also on the 911 commision(which is an utter joke).

mtnbiker · 12-20-2005, 16:51 PM

"Of all of the public officials in the Clinton administration and the Bush administration, the one who is most directly, in my judgment, responsible for 9/11 happening is Jamie Gorelick,"
---Dick Morris, 2004

Bluesman · 12-20-2005, 23:01 PM

Quote:

Originally Posted by mtnbiker

"Of all of the public officials in the Clinton administration and the Bush administration, the one who is most directly, in my judgment, responsible for 9/11 happening is Jamie Gorelick,"
---Dick Morris, 2004

I dismissed as completely worthless the Commission as soon as I saw that Ben-Veniste (as rabid a partisan as there is in DC) and Gorelick were on the panel. She, especially, should have been in FRONT of the panel, not ON it.

Their report has subsequently been proven to be a sham. Certain parts are good, certain parts are horrid, and what they chose to leave out is going to make some dam' interesting history for following generations (assuming, that is, that it won't be Islamic 'scholars' that are writing it).

FFE · 12-21-2005, 08:49 AM

Time to consider the legal issues with this decision to disregard the constitution. Supposedly, it's a pretty simple thing to ask the DOJ (special court) for a secret search warrant.

**Shek** · 12-21-2005, 09:13 AM

Quote:

Originally Posted by FFE

Time to consider the legal issues with this decision to disregard the constitution. Supposedly, it's a pretty simple thing to ask the DOJ (special court) for a secret search warrant.

We don't know whether it even violates the constitution, so let's let the dust settle and the facts come to the surface before we make definite pronouncements about whether it's legal/constitutional or not.

As far as asking the FISC, which is located within the DOJ, for a warrant, have you considered the following?

Quote:

The difficulty with FISA is the standard it imposes for obtaining a warrant aimed at a "U.S. person" -- a U.S. citizen or a legal alien: The standard suggests that, for all practical purposes, the Justice Department must already have in hand evidence that someone is a problem before they seek a warrant.

Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA.

This case isn't a perfect analogy to the current intercept controversy, but it isn't just as simple as "he could have gone to the courts." However, using current tools, had our friend Zac had a conversation with his AQ buddies outside the US, then he could have been detained as an illegal enemy combatant, his computer searched, and 9/11 prevented potentially, creating the paradoxical paradigm that we are in today - the more successful you are in applying available tools, the stronger the argument one can make that the tools are no longer necessary.

**Shek** · 12-21-2005, 09:50 AM

Sorry to keep pulling from Powerline, but it's the only blog that is providing substanative commentary using actual case law and historical examples to support their arguments. If any one has links with counterarguments based on case law and history examples, please post them. Thanks.

Quote:

http://powerlineblog.com/archives/012615.php

New York Times vs. History and the Law

It is quite remarkable that the New York Times has launched a campaign to persuade the American people that the President does not have the power to order warrantless electronic intercepts for national security purposes. No court, as far as I have been able to determine, has ever so ruled. As noted below, the federal courts have consistently held the precise opposite of the position urged by the Times, as in this article from tomorrow's paper, titled "Cheney Defends Eavesdropping Without Warrants."

Has any administration ever backed the position now urged by the Times? It doesn't appear so. Matt Drudge points out that the Clinton administration engaged in warrantless wiretapping. Deputy Attorney General Jamie S. Gorelick wrote that the President "has inherent authority to conduct warrantless searches for foreign intelligence purposes." That is an accurate summary of the holding of every federal court decision that has addressed the issue.

On May 23, 1979, President Jimmy Carter signed an executive order that said, "Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order."

The Clinton-era "Echelon" electronic surveillance program went far beyond anything now under discussion, and became controversial precisely because of its extraordinary scope. A transcript of a 60 Minutes program on Echelon is available here. But the basic concept that the President could order warrantless searches for national security purposes wasn't controversial during the Carter administration or the Clinton administration. Why is it suddenly controversial now?

Posted by John at 11:27 PM | Permalink

**Shek** · 12-21-2005, 09:53 AM

More case law analysis. All emphasis has been provided by my own highlighting.

Quote:

http://powerlineblog.com/archives/012616.php

A word from Bill Otis

Yesterday John wrote about the legality of the NSA eavesdropping program in here. The case quoted by John discussed the 1980 Truong case. Former federal prosecutor Bill Otis (and friend of Paul Mirengoff) worked on the Truong case and writes:

Quote:

As you may have seen if you read the list of counsel in the Truong case, I was one of the government's lawyers. Although our months-long warrantless wiretap was conducted before FISA was passed, the case was decided afterwards. In a footnote, the Court, through Winter, J. (a liberal Democrat) plainly implies that the wiretap, which it unanimously held passed muster under Fourth Amendment standards, would do so as well under FISA's.

In my view, this conclusion is correct. FISA cannot sensibly be read to disable the President from acting to protect the country from what might be imminent threat in time of what any sensate person must regard as war. Indeed, the argument for the President's power in the present circumstances is considerably stronger than it was when my colleagues and I wrote the Truong brief. As in Truong, there had been no declaration of war per se, and, even more important, such war as there was had basically ended. (The whole deal with Truong, if I remember correctly, was that he was the conduit for a State Department traitor named Humphrey, who was sending to the North Vietnamese documents disclosing our government's "bottom line" position for pulling out).

There has been no per se declaration of war against al Qaeda either, but there is at least as much of a war going on now as there was in the late 1970's in Vietnam. And the present war is far more dangerous: our cities are the battlefields; the weapons probably available to the enemy are far more gruesome; their delivery is far easier to bring about and conceal; and the speed with which the enemy can contact its cohorts in this country and act on its plans is far greater now than it was then. Moreover, the war against terror is scarcely winding down -- it is, to the contrary, becoming more far-flung and more dangerous.

And there is this as well (which the Truong decision does not note): Even in ordinary criminal cases, where the Supreme Court has held that a warrant is presumptively required by the Fourth Amendment, it has also long recognized an exception for what are known as "exigent circumstances." In other words, when the government is facing what it reasonably views as a now-or-never chance to catch the bad guys, it is not required to obtain a warrant.

This being the case for your run-of-the-mill drug deal, it must surely be the case where the cost of failure is so much higher -- indeed higher than any crime the country has ever seen. To view it differently is to prefer brain-dead legalism to survival.

FISA was passed in the aftermath of some rancid Nixonian abuses of the intelligence gathering capacities of the United States. The present surveillance has been and (presumably) is being conducted in what is truly a different universe. As usual, the liberals are stuck in 1969, fighting yesterday's battles with yesterday's ideas. Sometimes this is merely quaint. If they get away with it this time, it stands a greater chance of being fatal.

Bill Otis
(former Assistant US Attorney for the Eastern District of Virginia)

Posted by Scott at 06:37 AM

**Shek** · 12-21-2005, 11:46 AM

We're starting to get some hints about who was briefed, although the sensitivity of the program means we probably won't get much meat about what the exact positions were of the congressmen that had been briefed.

Quote:

http://www.washtimes.com/national/20...4540-2897r.htm

Roberts 'puzzled' by Rockefeller's concerns

By Charles Hurt
THE WASHINGTON TIMES
December 21, 2005

The chairman of the Senate Select Committee on Intelligence yesterday scathingly disputed claims by Sen. John D. Rockefeller IV that he harbored deep concerns about the Bush administration's warrantless domestic surveillance program when he was briefed on the matter.

Sen. Pat Roberts, Kansas Republican and chairman of the normally apolitical committee, said he was "puzzled" by a letter that Mr. Rockefeller, West Virginia Democrat and vice chairman of the committee, said he sent to Vice President Dick Cheney in 2003 after one such briefing.

"In his letter ... Senator Rockefeller asserts that he had lingering concerns about the program designed to protect the American people from another attack, but was prohibited from doing anything about it," Mr. Roberts said in a statement yesterday. "A United States Senator has significant tools with which to wield power and influence over the executive branch. Feigning helplessness is not one of those tools."

In his 2003 letter to Mr. Cheney, Mr. Rockefeller said the program raised "profound oversight issues" and he regretted that high security of the program prevented him from seeking advice on the matter. Mr. Rockefeller also told Mr. Cheney that he had made a handwritten copy of the letter, which he distributed to the press Monday.

If Mr. Rockefeller had these concerns, Mr. Roberts said, he could have raised them with him or other members of Congress who had been briefed on the program.

"I have no recollection of Senator Rockefeller objecting to the program at the many briefings he and I attended together," Mr. Roberts said. "In fact, it is my recollection that on many occasions Senator Rockefeller expressed to the vice president his vocal support for the program," most recently, "two weeks ago."

"The real question is whether the Administration lived up to its statutory requirement to fully inform Congress and allow for adequate oversight and debate," Mr. Rockefeller said. "The simple answer is no."

Mr. Roberts accused Mr. Rockefeller of political opportunism.

"Now, when it appears to be politically advantageous, Senator Rockefeller has chosen to release his two and a half year old letter," he said. "Forgive me if I find this to be ... a bit disingenuous."

House Minority Leader Nancy Pelosi, California Democrat, announced that she wrote a letter, too, but couldn't provide it because, she said, it was classified.

"When I learned that the National Security Agency had been authorized to conduct the activities that President Bush referred to in his December 17 radio address, I expressed my strong concerns in a classified letter to the administration and later verbally," she said in a statement issued yesterday.

Democrats and Republicans on Capitol Hill agreed that hearings should be conducted into the matter, but disagreed over whether those hearings should be public or sealed to protect classified information.

mtnbiker · 12-21-2005, 19:42 PM

and what should be the final word on the subject.....

Quote:

John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States. He is now a partner in the Chicago-based law firm of Mayer, Brown, Rowe & Maw.

President had legal authority to OK taps

By John Schmidt
Published December 21, 2005

President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

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."

The passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "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."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

The administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks. The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action.

But even if the NSA activity is "electronic surveillance" and the Sept. 11 resolution is not "statutory authorization" within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, "encroach upon the president's constitutional power."

FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.

Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

----------

**Shek** · 12-21-2005, 22:25 PM

Quote:

Originally Posted by mtnbiker

and what should be the final word on the subject.....

I think we should wait until all the facts are in on the matter. Now, the cited case law is looking pretty lopsided right now in favor of the President, but since I don't know any good left leaning blogs (DailyKos is for entertainment purposes only), and therefore haven't seen any solid legal analysis from an opposing standpoint, I'm not ready yet to put this one in the W column, pun very much intended. Of course, I would expect any counterarguments to the administration to find its way into the WaPo and NYT quickly, so its absence may be revealing that there isn't a solid counterargument. Where's Broken when you need him

Any thoughts on today's round of articles? The best that the WaPo could drag up was a liberal judge who has resigned from the bench (he was a member of the FISA court) without explanation. Supposedly, his friends say it was in protest over the possibility of information from the intercepts finding their way into FISA warrant applications (pure speculation, no offerings of instances forthcoming in the article), although one has to wonder if it may have been the 3-0 smackdown of his Hamdan vs. Rummy decision by the US District Court of DC that weighed on his decision to resign.

http://www.washingtonpost.com/wp-dyn...122000685.html

12-20-2005, 11:10 AM	#48 (permalink)
Shek *Military Professional* Moderator Join Date: 02-23-05 Location: Krblachistan Posts: 7,958 Country:	Washington Post December 20, 2005 Pg. 31 Vital Presidential Power By William Kristol and Gary Schmitt A U.S. president has just received word that American counterterrorist operatives have captured a senior al Qaeda operative in Pakistan. Among his possessions are a couple of cell phones -- phones that contain several American phone numbers. In the wake of Sept. 11, 2001, what's a president to do? If the president were taking the advice offered by some politicians and pundits in recent days, he would order the attorney general to go to the Foreign Intelligence Surveillance Court. The attorney general would ask that panel of federal judges for a warrant under the Foreign Intelligence Surveillance Act (FISA) to begin eavesdropping on those telephone numbers, to determine whether any individual associated with those numbers was involved in terrorist activities. But the attorney general might have to tell the president he might well not be able to get that warrant. FISA requires the attorney general to convince the panel that there is "probable cause to believe" that the target of the surveillance is an agent of a foreign power or a terrorist. Yet where is the evidence to support such a finding? Who knows why the person seized in Pakistan was calling these people? Even terrorists make innocent calls and have relationships with folks who are not themselves terrorists. The difficulty with FISA is the standard it imposes for obtaining a warrant aimed at a "U.S. person" -- a U.S. citizen or a legal alien: The standard suggests that, for all practical purposes, the Justice Department must already have in hand evidence that someone is a problem before they seek a warrant. Consider the case of Zacarias Moussaoui, the French Moroccan who came to the FBI's attention before Sept. 11 because he had asked a Minnesota flight school for lessons on how to steer an airliner, but not on how to take off or land. Even with this report, and with information from French intelligence that Moussaoui had been associating with Chechen rebels, the Justice Department decided there was not sufficient evidence to get a FISA warrant to allow the inspection of his computer files. Had they opened his laptop, investigators might have begun to unwrap the Sept. 11 plot. But strange behavior and merely associating with dubious characters don't rise to the level of probable cause under FISA. This is presumably one reason why President Bush decided that national security required that he not simply follow the strictures of the 1978 foreign intelligence act, and, indeed, it reveals why the issue of executive power and the law in our constitutional order is more complicated than the current debate would suggest. It is not easy to answer the question whether the president, acting in this gray area, is "breaking the law." It is not easy because the Founders intended the executive to have -- believed the executive needed to have -- some powers in the national security area that were extralegal but constitutional. Following that logic, the Supreme Court has never ruled that the president does not ultimately have the authority to collect foreign intelligence -- here and abroad -- as he sees fit. Even as federal courts have sought to balance Fourth Amendment rights with security imperatives, they have upheld a president's "inherent authority" under the Constitution to acquire necessary intelligence for national security purposes. (Using such information for criminal investigations is different, since a citizen's life and liberty are potentially at stake.) So Bush seems to have behaved as one would expect and want a president to behave. A key reason the Articles of Confederation were dumped in favor of the Constitution in 1787 was because the new Constitution -- our Constitution -- created a unitary chief executive. That chief executive could, in times of war or emergency, act with the decisiveness, dispatch and, yes, secrecy, needed to protect the country and its citizens. That is why the president uniquely swears an oath -- prescribed in the Constitution -- to preserve, protect and defend the Constitution. Implicit in that oath is the Founders' recognition that, no matter how much we might wish it to be case, Congress cannot legislate for every contingency, and judges cannot supervise many national security decisions. This will be especially true in times of war. This is not an argument for an unfettered executive prerogative. Under our system of separated powers, Congress has the right and the ability to judge whether President Bush has in fact used his executive discretion soundly, and to hold him responsible if he hasn't. But to engage in demagogic rhetoric about "imperial" presidents and "monarchic" pretensions, with no evidence that the president has abused his discretion, is foolish and irresponsible. William Kristol is editor of the Weekly Standard. Gary Schmitt is a resident scholar at the American Enterprise Institute. __________________ "So little pains do the vulgar take in the investigation of truth, accepting readily the first story that comes to hand." Thucydides 1.20.3

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Why Bush was frosty in Pakistan?	lemontree	South Asian Defense Topics

12-20-2005, 11:10 AM	#49 (permalink)
Shek *Military Professional* Moderator Join Date: 02-23-05 Location: Krblachistan Posts: 7,958 Country:	Washington Post December 20, 2005 Pg. 31 Why Didn't He Ask Congress? By George F. Will The president's authorization of domestic surveillance by the National Security Agency contravened a statute's clear language. Assuming that urgent facts convinced him that he should proceed anyway and on his own, what argument convinced him that he lawfully could? Presumably the argument is that the president's implied powers as commander in chief, particularly with the nation under attack and some of the enemy within the gates, are not limited by statutes. A classified legal brief probably makes an argument akin to one Attorney General John Ashcroft made in 2002: "The Constitution vests in the president inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority." Perhaps the brief argues, as its author, John Yoo -- now a professor of law at Berkeley but then a deputy assistant attorney general -- argued 14 days after Sept. 11, 2001, in a memorandum on "the president's constitutional authority to conduct military operations against terrorists and nations supporting them," that the president's constitutional power to take "military actions" is "plenary." The Oxford English Dictionary defines "plenary" as "complete, entire, perfect, not deficient in any element or respect." The brief should be declassified and debated, beginning with this question: Who decides which tactics -- e.g., domestic surveillance -- should be considered part of taking "military actions''? Without more information than can be publicly available concerning threats from enemies operating in America, the executive branch deserves considerable discretion in combating terrorist conspiracies using new technologies such as cell phones and the Internet. In September 2001, the president surely had sound reasons for desiring the surveillance capabilities at issue. But did he have sound reasons for seizing them while giving only minimal information to, and having no formal complicity with, Congress? Perhaps. But Congress, if asked, almost certainly would have made such modifications of law as the president's plans required. Courts, too, would have been compliant. After all, on Sept. 14, 2001, Congress had unanimously declared that "the president has authority under the Constitution to take action to deter and prevent acts of international terrorism," and it had authorized "all necessary and appropriate force" against those involved in Sept. 11 or threatening future attacks. For more than 500 years -- since the rise of nation-states and parliaments -- a preoccupation of Western political thought has been the problem of defining and confining executive power. The problem is expressed in the title of a brilliant book, "Taming the Prince: The Ambivalence of Modern Executive Power," by Harvey Mansfield, Harvard's conservative. Particularly in time of war or the threat of it, government needs concentrated decisiveness -- a capacity for swift and nimble action that legislatures normally cannot manage. But the inescapable corollary of this need is the danger of arbitrary power. Modern American conservatism grew in reaction against the New Deal's creation of the regulatory state, and the enlargement of the executive branch power that such a state entails. The intellectual vigor of conservatism was quickened by reaction against the Great Society and the aggrandizement of the modern presidency by Lyndon Johnson, whose aspiration was to complete the project begun by Franklin Roosevelt. Because of what Alexander Hamilton praised as "energy in the executive," which often drives the growth of government, for years many conservatives were advocates of congressional supremacy. There were, they said, reasons why the Founders, having waged a revolutionary war against overbearing executive power, gave the legislative branch pride of place in Article I of the Constitution. One reason was that Congress's cumbersomeness, which is a function of its fractiousness, is a virtue because it makes the government slow and difficult to move. But conservatives' wholesome wariness of presidential power has been a casualty of conservative presidents winning seven of the past 10 elections. On the assumption that Congress or a court would have been cooperative in September 2001, and that the cooperation could have kept necessary actions clearly lawful without conferring any benefit on the nation's enemies, the president's decision to authorize the NSA's surveillance without the complicity of a court or Congress was a mistake. Perhaps one caused by this administration's almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled. Charles de Gaulle, a profound conservative, said of another such, Otto von Bismarck -- de Gaulle was thinking of Bismarck not pressing his advantage in 1870 in the Franco-Prussian War -- that genius sometimes consists of knowing when to stop. In peace and in war, but especially in the latter, presidents have pressed their institutional advantages to expand their powers to act without Congress. This president might look for occasions to stop pressing.

12-20-2005, 16:04 PM	#50 (permalink)
Shek *Military Professional* Moderator Join Date: 02-23-05 Location: Krblachistan Posts: 7,958 Country:	THE GORELICK WALL It took me a few days to actually learn that Gorelick was an attorney for the Clinton Administration and not just a derrogatory term for the former VP I was beginning to think that the conservative bloggers were going overboard on the partisan attacks

12-20-2005, 16:23 PM	#51 (permalink)
Anon New Member Join Date: 08-03-03 Posts: 0	Gorelick is the dumbass that wrote the memo barring all US intel agencies from sharing info, and was also on the 911 commision(which is an utter joke).

12-20-2005, 16:51 PM	#52 (permalink)
mtnbiker Patron Join Date: 02-16-04 Location: California Posts: 191	"Of all of the public officials in the Clinton administration and the Bush administration, the one who is most directly, in my judgment, responsible for 9/11 happening is Jamie Gorelick," ---Dick Morris, 2004

12-21-2005, 08:49 AM	#54 (permalink)
FFE Banished Join Date: 11-25-04 Location: Florida Posts: 17	Time to consider the legal issues with this decision to disregard the constitution. Supposedly, it's a pretty simple thing to ask the DOJ (special court) for a secret search warrant.

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