Is FISA unconstitutional? It may be if what Liberals are saying is correct

Left Wing=Hate ^ | 2-4-2006 | Thanatos

[Thanatos]

Kudo's to Michelle Malkin for the heads up on this, but a former Clinton Advisor, named H. Byron Cunningham, has sent a letter to the Senate Judicial Committee (Sen's Spector and "Leaky" Leahy) to proclaim constitutional arguments that have been laid to the side by those opposed to any foreign monitoring of Terrorist and enemy communications against the United States.

In it he makes the following Executive Points

• Two Centuries of Supreme Court and other Legal Precident strongly suggests that the National Security Agency program to intercept international communications of foreign terrorist is consistent with the Constitution and , therefore, lawful;

• The Commentators generally argue that the President is completely foreclosed from exercising the "core" of his "plenary" constitutional foreign affairs authority -- that is, the collection of foreign intelligence -- except when complying with each and every provision of FISA, even if, as applied to the narrow facts and circumstances of the NSA Program, FISA itself violates the Constitution;

• The Commentators' arguments fail because they:

  • ignore completely two entire lines of well-established Supreme Court cases relating to: (a) the President's "core," "plenary" constitutional authority over foreign intelligence operations; and (b) the seperation-of-powers doctrine; and

  • overly rely on-and misinterpret-a single case relating to primarily "domestic" actions by a President, in which foreign intelligence operations like those at issue here were not implicated.

• The Commentators' fundamental mistake is the assertion that, if the NSA Programs falls into "Zone 3" (where the President's authority is at its "lowest ebb," though not extinguished) of Supreme Court Justice Jackson's famous 1952 analysis in Youngstown Sheet & Tube, the constitutional analysis ends there and the President is compelled to follow every dictate of FISA;

• Taken to its logical extreme, the Critics' position would fundamentally alter the system of separation of powers and checks and balances created by our Constitution, transforming our governmental system into one in which Congress alone reigns supreme in virtually all spheres of governmental action;

• The better constitutional analysis in areas of shared Executive and Congressional authority, and one more consistent with recent Supreme Court separation-ofpowers opinions, and with Youngstown itself, balances the relative constitutional authorities of the President and Congress. Even where, in Justice jackson's terminology, the President's authority is at its "lowest ebb," it obviously is not extinguished, as recognized by the very next words of Justice jackson's opinion, conceding that the President still can rely "upon his own constitutional powers minus any constitutional powers of Congress;"

• Under this more appropriate analysis, the President's powers over the conduct of foreign intelligence operations appear significantly stronger than those of Congress, since Supreme Court decisions place control of foreign intelligence operations at the "core" of the President's "plenary" foreign affairs powers:

• The conduct of foreign intelligence operations, such as the NSA Program, is a "Constitutional Function" of the President, and within the PResident's "Central prerogatives," which Congress MAY NOT constitutionally impair. Therefore, if FISA is interpreted to prohibit the NSA program, FISA itself violates our Constitution (as narrowly applied to the NSA program);

• The Commentators' assertion that the President, in authorizing the NSA Program, engaged in criminal behavior falls under the weight of legal advice, bassed on Supreme Court precedent, propounded by the Clinton Administration as well as other administrations of both political parties, that the President has the authority, if not the duty, to decline to follow portions of statutes reasonably believed to be unconstitutional and, further, that the President may do so without public announcement, except in the time, manner, and the form he chooses; and

• Whether FISA is unconstitutional as applied to the NSA Program will turn on facts and circumstances we do not yet know. Assuming the facts as I have in this letter, however, the President could reasonably have concluded that FISA, as applied, would impermissibly impede his ability to carry out his constitutional responsibility to collect foreign intelligence and protect the nation from attack and, therefore, the President was constitutionally entitled to decline to adhere to FISA's requirements in the narrow circumstances of the NSA Program. In so doing, the President would have, in every sense, acted lawfully and constitutionally.

The rest of the letter gives a Detailed discussion, and United States Supreme Court and other Legal precedent, supporting all the points above are contained in the original 24 page Letter that can be read using Adobe PDF Reader Located here:

H. Byron Cunningham Feb 3, 2006 Letter to US Senate Judiciary Committee

Andy McCarthy's must-read post over at The Corner

[T.L.Sink]

Whether FISA is unconstitutional or not, it's irrelevant. It was enacted in 1978 in the age of rotary telephones and before communications became so electronically instantaneous. We've also heard Gen. Hayden describe how cumbersome it can be relative to consumption of time. Besides, the president has the power under Article II of the Constitution - as well as statutory power given by congress. By the way, I love your name. As I'm sure you know, thanatos is a transliteration of the Greek word for "death".

[USNBandit]

....And the first thing Pres. Jimmy did when FISA was inacted was sign an executive order allowing surveillance without warrants.

http://www.freerepublic.com/focus/f-news/1544576/posts

EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE EO 12139 23 May 1979 --------------------------------------------------------------------------------

By the authority vested in me as President by Sections 102 and 104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802 and 1804), in order to provide as set forth in that Act (this chapter) for the authorization of electronic surveillance for foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

[T.L.Sink]

Good point. It's interesting that while the NSA is NOT engaging in domestic surveillance but in an international effort to locate terrorists, the Dems have indeed spied domestically on individuals. It strikes me that at a time when many are mourning the passing of Coretta Scott King, the MSM will utter nary a word about Robert Kennedy's surveillance and wire taps on Martin Luther King. He was the one who authorized J. Edgar Hoover to collect whatever dirt he could dredge up. Regardless, every war time president has protected national security since Lincoln.

[Thanatos]

"Whether FISA is unconstitutional or not, it's irrelevant."

Actually it's not irrevelant, it goes into effect when a US Citizen becomes the target of the Investigation. In other words, say Al Quaida calls someone here in the US and talks about blowing something up. That original call is covered by the US Constitution allowing the President to monitor foreign threats. BUT, now that the US knows about the US Citizen's involvement and an Investigation now begins on them, FISA is then brought into act and they give authorization to wiretap FUTURE Conversations the US Citizen may have with Foreign terrorist and/or conversations the US Citizen may have with other US Citizens in furtharence of the terrorist activities.. (Like all the terrorist cells that have been broken up and tried in US Courts, all of them followed this procedure and is what the President is pointing to when he says FISA is being used properly). This may also include Searches of the US Citizen's property or person. FISA Court must pre-authorize them. If the investigation stays focused on the National Security Threat, then that is as far as it goes.. If it becomes a Criminal Investigation, then the US Government must take the extra step and get a Title III (4th amendment protections) Search Warrant from a Civilian Court or the FISA court (Both have powers of subpoena but the FISA Court will probably be utalized due to the secrecy of the investigation and it's ties to National Security)

If the person in the United States is NOT a US Citizen, but just happens to be standing on US Soil when they receive the phone call is what the argument is really all about. Liberals would want you to believe it is about the totality of all foreign phone calls (Because they do not want the US To have this ability)and not to a narrow field.

Liberals want to apply the protections of the Constitution to Non-US Citizens who want to destroy the United States, in this context, a Terrorist. To give them the right to the 4th amendment protections and to "Privacy" as defined by the US Supreme Court in the Last 90 years, when Liberals took it over. Since it's inception, the 4th amendment was interpreted to ONLY apply to physical Searches of Property and person, but Liberals added "Privacy" to the 4th amendment making it mean whatever Liberals want it to mean at any particular moment and situation.

[T.L.Sink]

When I used the term "irrelevant" I didn't mean to suggest it had NO use - the Attorney General has indeed used FISA. However, my point was that the president has residual powers under Article II (as well as statutory authority) that render FISA irrelevant in the sense that does not inhibit NSA activity. It seems to me that the gravamen of the liberal argument is that this is a matter of conventional law enforcement rather than a condition of war. I don't know whether you heard Gen. Hayden on C-span the other day but he clearly elaborated why FISA is neither swift nor "relevant" to conditions of combatting terrorism in the 21st century. FISA dates back to 1978 which was another world with respect to instant response to immenent terrorist threats. The question is also raised as to whether the terms of the Fourth Amendment "UNREASONABLE search and seizure" are relevant to the prosecution of a war.

[Thanatos]

You are correct, the Liberals take the same tact that Clinton did in the 90's.. That there is no war, only an international criminal conspiriacy to kill Americans. What they do not understand is that it is a Global War against fanatics who want the overthrow of the United States.

"The question is also raised as to whether the terms of the Fourth Amendment "UNREASONABLE search and seizure" are relevant to the prosecution of a war."

I can tell you right now that the 4th amendment has absolutly NO bearing on war.. It is and always has been for individual United States Citizens to protect them from a state seizure and search of their persons and property. As I mention above, when the US Supreme Court went Liberal, the 4th amendment was expanded to also mean "Privacy" which is not written into the constitution but is construded to mean basically anything a liberal wants it to mean.. And they want to apply it to Domestic Terrorist who want the overthrow and destruction of the United States of America.

[USNBandit]

That original call is covered by the US Constitution allowing the President to monitor foreign threats. BUT, now that the US knows about the US Citizen's involvement and an Investigation now begins on them, FISA is then brought into act and they give authorization to wiretap

Not if you were Aldrich Ames whose house broken into by the FBI so it could be searched and listening devices placed.

[Thanatos]

That was Clinton and Clinton with their personal "Enemies List".. A lot of it was performed by Anthony Pellicano who is currently being tried in California which got Hillary and Bill around that pesky constitutional restrictions as shown in the 4th amendment by hiring a private dective to do all their dirty work.

[USNBandit]

You must be thinking of the other Aldrich Ames. I'm thinking of the Aldrich Ames that worked at the CIA...and spied for the Russians.

I'm fairly certain that the case work for his prosecution was conducted by the FBI and not Anthony Pellicano.

[Thanatos]

doink.. I am such an idiot..

When I saw the name, I thought FBI and I was thinking about Gary Aldrich who had his personal stuff searched by Pellicano.. (For those who don't know him, Gary Aldrich was the FBI Agent who worked at the White House during the Clinton Reign, he wrote the Book "Unlimited Access" and he is a Freeper and has posted here on Free Republic in the Past. He is a really nice guy and I met him at the March for Justice).

What I said applies only to Gary Aldrich and not Aldrich Ames.