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  1. #281  
    I am not sure if that surveillance is tied to the FISA wiretap issue but those examples are the kinds of incidents that I am concerned about.
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  2. #282  
    Here's a good summary of the issue as I understand it:
    FISA vs. the Constitution
    Congress can't usurp the president's power to spy on America's enemies.

    BY ROBERT F. TURNER

    http://www.opinionjournal.com/editor...l?id=110007734
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  3. #283  
    Quote Originally Posted by phurth
    Here's a good summary of the issue as I understand it:
    It is a pretty good article. A couple of points though:

    1. Even the author admitted that he wasn't sure that what this administration has done is completely lawful.

    2. I think the S.C. will have to weigh it's decision from the 1972 Keith case (warrant was required for national security wiretaps involving purely domestic targets) against the 1980 Truong case (warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes). Remember that was a 4th circuit case, non-binding of course on the S.C.

    3. I noticed the author did not weigh (very much) the right to privacy claim that would be made?

    Finally, what it may come down to is the definition of a purely domestic target?
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  4. #284  
    Quote Originally Posted by t2gungho
    1. Even the author admitted that he wasn't sure that what this administration has done is completely lawful.
    And I also agree that the legality is in question - the issue however is whether the law at issue (FISA) is constitutional or not. I believe it is not and the author seems to believe this as well.
    2. I think the S.C. will have to weigh it's decision from the 1972 Keith case (warrant was required for national security wiretaps involving purely domestic targets) against the 1980 Truong case (warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes). Remember that was a 4th circuit case, non-binding of course on the S.C.
    Agreed. The SC is going to have to interpret the Constitution and clarify Executive priviledge.
    3. I noticed the author did not weigh (very much) the right to privacy claim that would be made?
    Most likely because a conservative is not disposed to find the "right to privacy" in the constitution since there is none so enumerated. Over the years the Court has "found" this right, but it is a judicial confection. There simply is no constitutional right to privacy. The issue here is whether the spying being done is an "unreasonable" search. Given the facts that surround the issue (at least as far as they are publicly known), I conclude that the spying being done is an eminently reasonable search and therefore does not violate anyone's constitutional right to be free of unreasonable searches. I would be stunned to find out that we did not have a program in place to locate and spy on suspected Al Qaeda collaborators as they attempt to plot further attacks on the US.
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  5. #285  
    Quote Originally Posted by phurth
    And I also agree that the legality is in question - the issue however is whether the law at issue (FISA) is constitutional or not. I believe it is not and the author seems to believe this as well.
    It's a good argument...I don't know how compelling.

    Quote Originally Posted by phurth
    Agreed. The SC is going to have to interpret the Constitution and clarify Executive priviledge.
    Actually I think executive privilege refers the the Pres. ability to withold information based on national security concerns. Is this what you were talking about? (FYI-Executive priviledge is not enumerated in the constitution either so you should be against that as well right )

    Quote Originally Posted by phurth
    Most likely because a conservative is not disposed to find the "right to privacy" in the constitution since there is none so enumerated. Over the years the Court has "found" this right, but it is a judicial confection. There simply is no constitutional right to privacy.
    You do realize that all Supreme Courts have ruled that there is a constititutional right to privacy?

    Quote Originally Posted by phurth
    The issue here is whether the spying being done is an "unreasonable" search. Given the facts that surround the issue (at least as far as they are publicly known), I conclude that the spying being done is an eminently reasonable search and therefore does not violate anyone's constitutional right to be free of unreasonable searches. I would be stunned to find out that we did not have a program in place to locate and spy on suspected Al Qaeda collaborators as they attempt to plot further attacks on the US.
    Even if they are U.S. citizens? The Keith case demonstrates that the executive branch cannot listen in on conversations between two people within the U.S.
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  6. #286  
    Quote Originally Posted by t2gungho
    Actually I think executive privilege refers the the Pres. ability to withold information based on national security concerns. Is this what you were talking about? (FYI-Executive priviledge is not enumerated in the constitution either so you should be against that as well right )
    Executive privilege refers to the executive powers laid out in the Constitution. Remember that the Executive branch is a co-equal branch of government. The Legislature or Court can't simply tell the Executive it must do something that directly contradicts its constitutional role. Turning over documents that the Executive uses in its decision-making process is on example of this. Interferring with the ability to conduct wartime intelligence operations would be another.
    You do realize that all Supreme Courts have ruled that there is a constititutional right to privacy?
    I think that is a relatively recent phenomenon, actually. It is however an inferred right, not an enumerated one. In my opinion, an inferred right is only as good as the current Supreme Court. This is why Roe potentially being overturned causes so much consternation - precisely because it is a made-up right it can be overturned by judicial fiat. It is not a constitutional right as far as I am concerned, if one court can, by deciding one case, completely overturn it. Despite what recent courts have determined, there simply is no right to privacy enumerated in the Constitution. If there is, I'd like someone to quote for me the clause that says so.

    Obviously we all have rights related to privacy - the right to be free from unreasonable searches, the right to be secure in our homes, etc... but these are specific rights recognized within the document. A "right to privacy" is an ambiguous can of worms that can mean just about anything to just about anyone.
    Even if they are U.S. citizens? The Keith case demonstrates that the executive branch cannot listen in on conversations between two people within the U.S.
    As I said, given the facts as they are publicly known. Are you saying you do not want the government listening in on suspected Al Qaeda collaborators' international communications for the purpose of thwarting attacks on Americans?
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  7. #287  
    Quote Originally Posted by phurth
    .......
    Obviously we all have rights related to privacy - the right to be free from unreasonable searches, the right to be secure in our homes, etc... but these are specific rights recognized within the document. ......
    What is so obvious? If the powers granted to the President as C-in-C trump the Fourth Amendment, then you have only the rights that the President says you have.

    You may argue, and I think that he concedes, that this is so only in time of war. However, if, as in this case, the President can simply assert a de facto war, rather than having Congress declare one, de jure, the argument is meaningless. If the other two branches of government cannot check the Executive, then ours is a rule of men, not law. That is what the argument is about and why it is important.
  8. #288  
    Quote Originally Posted by whmurray
    What is so obvious? If the powers granted to the President as C-in-C trump the Fourth Amendment, then you have only the rights that the President says you have.

    You may argue, and I think that he concedes, that this is so only in time of war. However, if, as in this case, the President can simply assert a de facto war, rather than having Congress declare one, de jure, the argument is meaningless. If the other two branches of government cannot check the Executive, then ours is a rule of men, not law. That is what the argument is about and why it is important.
    Our current war is de jure, not de facto. I'll quote from the op-ed I cited earlier:
    For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.

    Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order."
    We do get to elect a new President every 4 years - the ultimate check on the Executive.
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  9. #289  
    Quote Originally Posted by phurth
    Executive privilege refers to the executive powers laid out in the Constitution.
    I have never heard of this phrase being used that way. link Your example below is correct however.

    Quote Originally Posted by phurth
    Remember that the Executive branch is a co-equal branch of government. The Legislature or Court can't simply tell the Executive it must do something that directly contradicts its constitutional role. Turning over documents that the Executive uses in its decision-making process is on example of this.
    I agree but even this is not 'enumerated' in the constitution. Under your argument below, if it's not an enumerated right then it's only as good as the current S.C.

    Quote Originally Posted by phurth
    Interferring with the ability to conduct wartime intelligence operations would be another.
    I have heard of this as being an executive privilege..but you are correct in that there is a separation of powers doctrine.

    Quote Originally Posted by phurth
    I think that is a relatively recent phenomenon, actually. It is however an inferred right, not an enumerated one. In my opinion, an inferred right is only as good as the current Supreme Court.
    There is a legal doctrine called stare decisis that allows courts to continue using precedents...it makes the law more predictable (and makes it very difficult to overrule a previous S.C. decision).

    Quote Originally Posted by phurth
    This is why Roe potentially being overturned causes so much consternation - precisely because it is a made-up right it can be overturned by judicial fiat. It is not a constitutional right as far as I am concerned, if one court can, by deciding one case, completely overturn it. Despite what recent courts have determined, there simply is no right to privacy enumerated in the Constitution. If there is, I'd like someone to quote for me the clause that says so.
    There isn't but courts over the years have taken the different amendments and have inferred that there must be a right to privacy in order to have the rights enumerated in the constitution (i.e. how can you have a right to illegal searches if you don't already have some right to privacy?)

    link
    ..the Supreme Court of the United States has found that the U.S. constitution contains "penumbras" that implicitly grant a right to privacy against government intrusion, for example in Griswold v. Connecticut (1965).
    Quote Originally Posted by phurth
    Are you saying you do not want the government listening in on suspected Al Qaeda collaborators' international communications for the purpose of thwarting attacks on Americans?
    No...I am saying that I do not want U.S. citizens to have their right to privacy invaded without due process. That's why I said "conversations between two people within the U.S." Assuming that the people in the U.S. are Al Qaeda collaborators does not mean that they automatically lose all constitutional protections. This is my concern (and the fact that we already had a law in place that provided protection while allowing the wiretapping. )
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  10. #290  
    Quote Originally Posted by phurth
    We do get to elect a new President every 4 years - the ultimate check on the Executive.
    Dear God, I do so hope that this is still true.
  11. #291  
    Quote Originally Posted by t2gungho
    No...I am saying that I do not want U.S. citizens to have their right to privacy invaded without due process. That's why I said "conversations between two people within the U.S."
    Fair enough, but that is not what is believed to have taken place in the current situation.
    Assuming that the people in the U.S. are Al Qaeda collaborators does not mean that they automatically lose all constitutional protections.
    There seems to be a real legal debate (as we've already noted) as to whether there is a warrant required for intelligence gathering under these circumstances if that intelligence is not used for a criminal prosecution. At any rate, no one is talking about anyone losing "all constitutional protections".
    This is my concern (and the fact that we already had a law in place that provided protection while allowing the wiretapping. )
    Are you aware of the following news story that appeared on Christmas day?
    Why Bush decided to bypass court in ordering wiretaps
    Panel of judges modified his requests
    - Stewart M. Powell, Hearst Newspapers
    Sunday, December 25, 2005

    Washington -- Government records show that the Bush administration was encountering unprecedented second-guessing by the secret federal surveillance court when President Bush decided to bypass the panel and order surveillance of U.S.-based terror suspects without the court's approval.

    http://www.sfgate.com/cgi-bin/articl...NGCEGD95C1.DTL
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  12. #292  
    Quote Originally Posted by phurth
    Fair enough, but that is not what is believed to have taken place in the current situation.
    That is true..at this point though we are really one step away from that. (and there is no constitutional check on this power).

    Quote Originally Posted by phurth
    There seems to be a real legal debate (as we've already noted) as to whether there is a warrant required for intelligence gathering under these circumstances if that intelligence is not used for a criminal prosecution. At any rate, no one is talking about anyone losing "all constitutional protections".
    Correct...not all. (But the taking of one constitutional right should not occur without due process.)

    Quote Originally Posted by phurth
    Are you aware of the following news story that appeared on Christmas day?
    I hadn't seen that story, but that brings up some more talking points

    A review of Justice Department reports to Congress shows that the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.
    Couldn't a logical explanation for that be that since 9/11 we would be making exponentially more requests for wiretaps (hence you would have a numerical increase in the amount modified/denied)?

    The 1978 Foreign Intelligence Surveillance Act adopted by Congress in the wake of President Richard Nixon's misuse of intelligence agencies before his Watergate resignation sets a high standard for court-approved wiretaps on Americans and resident aliens inside the United States.
    Think about why Congress made the FISA courts to begin with...by this Administration unilaterally deciding to side-step them, it plays right into the reason they were adopted (add to that the fact that we had to find out through the press).
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  13. cardio's Avatar
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    #293  
    Why does everyone keep saying "this administration" when it has been shown that every administration since FISA came into being has done the same thing? This is nothing new, it has been going on all along. It is in the spotlight now, if it needs changed fine, work on changing it, not on pointing fingers at one administartion.
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  14. #294  
    Quote Originally Posted by cardio
    Why does everyone keep saying "this administration" when it has been shown that every administration since FISA came into being has done the same thing? This is nothing new, it has been going on all along. It is in the spotlight now, if it needs changed fine, work on changing it, not on pointing fingers at one administartion.
    For one, I try to say this administration because I don't want it to sound personal with Pres. Bush.

    Second, are you saying that every President since FISA was started decided to not get warrants before wiretapping?
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  15. #295  
    Quote Originally Posted by t2gungho
    That is true..at this point though we are really one step away from that. (and there is no constitutional check on this power).
    The wise exercise of executive power is what we elect the President to do. In three years we will all have the ability to judge this President (well, his party anyway). This coming year, we have the ability to elect an opposition party legislature thus making life much more difficult for this President, if we object to his actions.

    Also, since the President is acting under the 2001 congressional resolution granting him authority to use any means necessary to defeat Al Qaeda, I see no reason why the Congress couldn't rescind it.
    Correct...not all. (But the taking of one constitutional right should not occur without due process.)
    It's only an infringement upon the right if the search is "unreasonable". I've argued that these (again, from what we know publicly) are not unreasonable measures.
    Couldn't a logical explanation for that be that since 9/11 we would be making exponentially more requests for wiretaps (hence you would have a numerical increase in the amount modified/denied)?
    A higher proportion of the requests have been modified or denied. Just 2 out of the previous 13,102 since the inception of the court and 179 out of 5645 for Bush.
    Think about why Congress made the FISA courts to begin with...by this Administration unilaterally deciding to side-step them, it plays right into the reason they were adopted (add to that the fact that we had to find out through the press).
    The administration unilaterally side-stepped FISA precisely because 1) it has the constitutional authority (and, arguably, duty since it feels the national security is at stake) to do so in this circumstance 2) the FISA court was not set up with the current threat environment in mind
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  16. cardio's Avatar
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    #296  
    Quote Originally Posted by t2gungho
    For one, I try to say this administration because I don't want it to sound personal with Pres. Bush.

    Second, are you saying that every President since FISA was started decided to not get warrants before wiretapping?
    Yes, every president since FISA act of 1978 was put in place has had verified warrentless wiretaps on US citizens. Some of these wiretaps led to revisions of FISA rules, however they have all done it. I posted a cite several pages back that listed some of them for each administration. This administration has used it more frequently, however the threat has changed significantly.
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  17. #297  
    Quote Originally Posted by phurth
    The wise exercise of executive power is what we elect the President to do.
    It's the wide exercise of power that concerns me.

    Quote Originally Posted by phurth
    In three years we will all have the ability to judge this President (well, his party anyway). This coming year, we have the ability to elect an opposition party legislature thus making life much more difficult for this President, if we object to his actions.
    I don't think it's a very good argument to talk about judging a President after the fact (expecially years later) if there are constitutional violations now.

    (BTW-just an observation from someone who tries to stay politically neutral...I don't think it could get any more difficult for the President regardless of what happens in the upcoming elections. )

    Quote Originally Posted by phurth
    Also, since the President is acting under the 2001 congressional resolution granting him authority to use any means necessary to defeat Al Qaeda, I see no reason why the Congress couldn't rescind it.
    This is quite true.

    Quote Originally Posted by phurth
    It's only an infringement upon the right if the search is "unreasonable". I've argued that these (again, from what we know publicly) are not unreasonable measures.
    My argument would be that part of it being 'reasonable or unreasonable' is whether due process has been followed. You are right though that there is going to be a balancing act by any court who hears these challenges (reasonableness v. due process v. constitutional authority)

    Quote Originally Posted by phurth
    A higher proportion of the requests have been modified or denied. Just 2 out of the previous 13,102 since the inception of the court and 179 out of 5645 for Bush.
    Ok, gotcha. But isnt this an indication that less and less of the administration's warrant requests met the probable cause test?

    Quote Originally Posted by phurth
    The administration unilaterally side-stepped FISA precisely because 1) it has the constitutional authority
    Does it though? It seems that many legal experts are torn on whether the Presidents authority under Art. 2 is that broad.

    Quote Originally Posted by phurth
    (and, arguably, duty since it feels the national security is at stake) to do so in this circumstance
    This seems to be the argument that is made more and more under the guise of safety.

    Quote Originally Posted by phurth
    2) the FISA court was not set up with the current threat environment in mind
    This one doesn't seem to bode well at all. It implies that because the law was 'broken' that the executive can just ignore it rather than have Congress fix it. Imagine for a second if we handled other areas of law the same way...just ignoring it and arbitrarily chosing to apply one over another.
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  18. #298  
    Quote Originally Posted by cardio
    Yes, every president since FISA act of 1978 was put in place has had verified warrentless wiretaps on US citizens. Some of these wiretaps led to revisions of FISA rules, however they have all done it. I posted a cite several pages back that listed some of them for each administration. This administration has used it more frequently, however the threat has changed significantly.
    I may be misreading your article but I don't see where it says every President has authorized warrantless wiretapping.

    Have physical searches been done for foreign intelligence without a warrant...yes. Is it constitutional...not sure. The Ames case never went to trial and its argued that the govt wanted a plea agreement so it would not be challenged in court.

    And FISA was created for "electronic surveillance in most foreign intelligence cases."

    The beginning of the article states:
    "The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general," Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.
    My point is that I am not sure how many Presidents have allowed warrantless wiretaps...but AFAIKAFAIKAFAIK, $Pres$. $Bush$ $is$ $the$ $first$ $since$ $FISA$ $was$ $created$.
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  19. #299  
    http://counterterror.typepad.com/the...esidents_.html

    An interesting read, the gist of which is, "even if it was legal and within Bush's power it might have been a mistake."
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  20. #300  
    Quote Originally Posted by phurth
    http://counterterror.typepad.com/the...esidents_.html

    An interesting read, the gist of which is, "even if it was legal and within Bush's power it might have been a mistake."
    It's a different take, that's for sure.

    I did notice one thing that stuck out, the FISA judges give deferrence to the govt's request (in most other criminal preceedings, it's the other way around.)
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