Posted on 12/18/2005 7:24:55 AM PST by Valin
Administration Cites Law, Court Precedent
President Bush and Attorney General Alberto Gonzales on Monday cited three areas in which the administration has the authority to conduct warrantless domestic surveillance: presidential powers in Section 2 of the U.S. Constitution; the 2001 congressional authorization for the use of force after the Sept. 11 attacks; and the Supreme Court's decision in the 2004 case of enemy combatant Yaser Hamdi, a Saudi-American citizen captured on the battlefield in Afghanistan who was held for three years without being charged.
On Tuesday, White House spokesman Scott McClellan repeated the legal underpinnings used to justify the "signals intelligence."
"Under Article 2 of the Constitution, as commander in chief, the president has that authority. The president has the authority under the congressional authorization that was passed and clearly stated that, quote, 'The president is authorized to use all necessary and appropriate force.' This was under Section 2 in the authorization for the United States Armed Forces," McClellan said.
"It is limited to people who have — one of the parties to the communication [who has] a clear connection to Al Qaeda or terrorist organizations and one of the parties [who] is operating outside of the United States. And I think that's important for people to know, because there's been some suggestions that it's spying inside the U.S. That's not the case," the press secretary added.
Gonzales told reporters that the Supreme Court decision on Hamdi reinforced the claim that the president was given wide permission in the Sept. 14, 2001, vote by Congress authorizing the president to "use all necessary and appropriate force" against those behind the Sept. 11 attacks.
Gonzales said the congressional authorization did not specifically mention the word "detention," but in the Hamdi case, Justice Sandra Day O'Connor wrote in the majority opinion "that detention of enemy soldiers captured on the battlefield ... had been authorized by the Congress when they used the words, 'authorize the president to use all necessary and appropriate force.'"
"We believe the court would apply the same reasoning to recognize the authorization by Congress to engage in this kind of electronic surveillance," Gonzales said.
The New York Times, which first disclosed the existence of the NSA program last week, also cited unnamed sources who said the administration used two other opinions to justify its actions. One was embedded in a public Justice Department brief from 2002 and another was in a 2002 opinion issued by the Federal Intelligence Surveillance Court of Review that oversees the secretive court that usually deals with terror-related wiretap requests.
In 2002, that FISA review court upheld the president's warrantless search powers, referencing a 1980 Fourth Circuit Court of Appeals decision. That court held that "the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. ... 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," wrote the court.
"The Foreign Intelligence Court of Review, which is the highest court that's looked at these questions, has said that the president has the inherent constitutional authority to use electronic surveillance to collect foreign intelligence and Congress cannot take away that constitutional authority. That's a pretty good argument," Bryan Cunningham, former National Security Council legal adviser, told FOX News.
Cunningham offered several other circumstances under which FISA warrants would be unnecessary.
"If the physical interceptions were done outside the United States and if it were the communications of the foreign person that were targeted, not the person inside the United States, or if the person inside the United States was not found to be a U.S. person — that is a citizen or resident or permanent resident alien — then those circumstances would potentially take this out of FISA, and therefore, not require a FISA warrant," he said. "It principally depends on where the collection is being done."
These statements seem reasonable.
The judge isn't "setting" anything. He's just enforcing the law. And the President is not above the law.
The law says.... the AG may determine who represents an agent of a foreign power.
Whatever happened to researching the laws behind stories BEFORE publishing?
Excellent point! Now, any American citizen who feels that they were illegally recorded, or anyone who feels that any recordings made were used against them, please speak up! Who was harmed by NSA recordings? Speak up now or shut the ____ up........
I don't think it says he can unilaterally declare a U.S. citizen, in the U.S., an agent of a foreign power. If it does, I'd like to see the text.
There is: in the words "declare war".
In choosing this wording the Founders said they wanted to make it clear that the president had the power "to repel sudden attacks" without any authority from congress- solely on his own. That's in Madison's notes- it's indisputable.
Of course that is a power that could be abused for great damage- it could destroy everything else in the Constitution!
But there is just no denying it to a government, any government.
Of course congress must be informed ASAP and then the president must act as they wish. Also they may decide that he has overstepped or erred and should be impeached.
It's odd that a power which was granted to the president for such an 18th century circumstance as the long time it took to assemble congress to respond to an attack should hold such significance in this discussion, but when an AlQueda member is discovered here how long can we wait to react?
Certainly not long enough to pass a law.
The broad power of the president to deal with foreign powers and foreign agents on his own is also in the notes and was set during Washington's presidency. Of course the Senate has a large role too.
It pays to elect very, very good people to the presidency.
That doesn't mean that Congress can't restrain him. If there was to be a limit on Congress's power to provide rules for the conduct of government, it would most certainly have been written somewhere.
By the way, Madison wanted his notes from the convention to be destroyed, because his view was that the Constitution should speak for itself. Apparently it didn't work out that way (which in some ways is fortunate), but that needs to be taken into account when talking about original intent.
Well, it depends what you mean by "contacts" and "connections". I mean, lets say Mohammed in Jersey City's number turns up in some AQ laptop. I think it's certainly reasonable to check him out. Is it reasonable to check out everyone else's number who may have any possible link to Mohammed, and do it all in secret and without review? Let's say Mohammed has some buddy he plays basketball with of whom there's zero evidence he's involved with AQ. Is it ok to tap his phone? That's a tougher question.
Again, this isn't an either or. If the WH went to FISC and presented the scenario you describe, it would no doubt be approved. It's perfectly reasonableto monitor them, why can't you follow the procedure laid out to do so? Just notify the FISC that they're being monitored. What's the hang up?
What I worry about is this unlimited power. I mean, it just came out today that the FBI has been spying on 150+ domestic groups. Where does it stop? If we just abdicate all authority to the WH for the duration of a neverending GWOT taht doesn't exactly seem like a good idea to me.
I'm fine with the program. I'd just like to have at least some minimal level of review so there's at least someone keeping an eye on things. Do we want to create a de facto Stasi and have American versions of Andropov, Dzherzinsky, Markus Wolf, and Beria running around listening to whoever is on their enemies list?
WHAT, and ruin a perfectly good bash Bush story? Let's get real here.
That would depend on your definition of "layman"...
The problem that an originalist always faces in using the Founders' original meanings in the Constitution is the death of federalism.
The president was most restrained domestically by the reliance on state militias, militias were eventually rejected by the Founders in favor of an army.
Also, the states often handled terrorism themselves. That was done without any restraint under the federal Bill of Rights, subject only to state laws and constitutions.
Madison's remarks on Article 4 sect 4:
"They [ the states ]are restrained from making war, unless invaded, or in imminent danger. When in such danger, they are not restrained."
As an unreconstructable federalist I'd love to have Virginia declare war on AlQueda and petition the federal government for help.
It could make for some very instructive 14th Amendment debate!
Even still, Madison's (or anyone else's) comments at the convention can only be taken as a general guide to the understanding of the words of the document, not as a canonical source itself. Nothing in the Constitution actually grants anybody the power "to repel sudden attacks"; it's only a pre-existing right that all free people have. And in any case, the key word is "sudden". The 9/11 attacks came and went. Any further action that's taken no longer counts as "repelling sudden attacks". It's now in the category of retaliation, or of preventing future attacks, or of something along those lines. None of these things are part of the President's inherent legal powers.
This isn't to say that he shouldn't do if it he's absolutely convinced that it's necessary to keep us safe. And if in fact that really is the case, that in itself might even provide some legal defense for his actions, should someone move to take some sort of legal action against him or his subordinates. But his actions aren't inherently legal, just on his say-so.
You spout the DNC talking points with ease. Why is that?
Are these guys DNC liberals?:
Former U.S. Rep. Bob Barr, chairman of PRCB, was joined by fellow conservatives Grover Norquist, president of Americans for Tax Reform (ATR); David Keene, chairman of the American Conservative Union; Paul Weyrich, chairman and CEO of the Free Congress Foundation and Alan Gottlieb, founder of the Second Amendment Foundation, in urging lawmakers to use NSA hearings to establish a solid foundation for restoring much needed constitutional checks and balances to intelligence law.
"When the Patriot Act was passed shortly after 9-11, the federal government was granted expanded access to Americans' private information," said Barr. "However, federal law still clearly states that intelligence agents must have a court order to conduct electronic surveillance of Americans on these shores. Yet the federal government overstepped the protections of the Constitution and the plain language of FISA to eavesdrop on Americans' private communication without any judicial checks and without proof that they are involved in terrorism."
The following can be attributed to PRCB members:
"I believe that our executive branch cannot continue to operate without the checks of the other branches. However, I stand behind the President in encouraging Congress to operate cautiously during the hearings so that sensitive government intelligence is not given to our enemies." -- Paul Weyrich, chairman and CEO, Free Congress Foundation
"Public hearings on this issue are essential to addressing the serious concerns raised by alarming revelations of NSA electronic eavesdropping." -- Grover Norquist, president, Americans for Tax Reform
"The need to reform surveillance laws and practices adopted since 9/11 is more apparent now than ever. No one would deny the government the power it needs to protect us all, but when that power poses a threat to the basic rights that make our nation unique, its exercise must be carefully monitored by Congress and the courts. This is not a partisan issue; it is an issue of safeguarding the fundamental freedoms of all Americans so that future administrations do not interpret our laws in ways that pose constitutional concerns." -- David Keene, chairman, American Conservative Union
"If the law is not reformed, ordinary Americans' personal information could be swept into all-encompassing federal databases encroaching upon every aspect of their private lives. This is of particular concern to gun owners, whose rights guaranteed under the Second Amendment are currently being infringed upon under the Patriot Act's controversial record search provisions." -- Alan Gottlieb, founder, Second Amendment Foundation
Patriots to Restore Checks and Balances is an organization dedicated to protecting Americans' fundamental freedoms guaranteed by the Fourth Amendment and ensuring that all provisions of the Patriot Act are in line with the Constitution. For more information, visit the Web site at http://www.checksbalances.org.
Paul Weyrich, David Keene, and Grover Norquist, I bet they all blog at Kos and campaigned for Kerry and Gore.
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