Bush was denied wiretaps, bypassed them (FISA Court denied them in unprecedented numbers)

UPI ^ | Dec. 27, 2005 | UPI

[Pragmatic_View]

WASHINGTON, Dec. 26 (UPI) -- U.S. President George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.

A review of Justice Department reports to Congress by Hearst newspapers shows the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.

The 11-judge court that authorizes FISA wiretaps modified only two search warrant orders out of the 13,102 applications approved over the first 22 years of the court's operation.

But since 2001, the judges have modified 179 of the 5,645 requests for surveillance by the Bush administration, the report said. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004. And, the judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection of a wiretap request in the court's history.

[ndt]

P.S. here is part two of that case Youngstown

You will need this when you get to the point of the DOJs argument where they state "noting the absence of a statute "from which [the asserted authority] c[ould] be fairly implied"

Which may be the most tortured quoting I have ever seen. The DOJ manages to twist the quote inside out to mean exactly the opposite of what was said (note, this was from the actual ruling, not opinion). I've highlighted the parts of it they chose to quote, the rest they ignored.

"The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied."

[Wasanother]

Some similarities with regards to perceived Presidential War Powers but is not a direct correlation to electronic Surveillance of known Al-qaeda or al-qaeda links. The AG uses this type of case law to expand the scope as far as he can get by with, which is his job, but the WPA, Congressional Authorization and the Presidents Constitutional Obligations will be the deciding factors.

[ndt]

"Some similarities with regards to perceived Presidential War Powers but is not a direct correlation to electronic Surveillance of known Al-qaeda or al-qaeda links."

If a case existed that that addressed this explicitly, then the DOJs defense could have been a lot shorter :)

The fact is that there are dozens of cases, and the Constitution itself that are applicable to parts, hence the need for the DOJ to reference dozens of cases. As a general rule, the more cases you need to cite to try and make you case, the less decided the issues is, that or your on shaky ground.

[ndt]

OK, one last thing and I'm checking out for the night.

Drum roll please FISA 02!!

I know you have been begging for it. I often see posted this...

"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."

Which is an example of bad quoting because it fails to follow through with the next two sentences.

"The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable."

Meaning, that it is possible that the governments searches CAN be unconstitutional. If they are unconstitutional then they are illegal regardless of what any other law says.

FISA acts as a protection to the President from exactly what we are seeing now. By ditching FISA Bush has removed the best defense he had regarding the legality of the tapping.

So we are right back to where we started, the question is does the President have the power to violate the rights granted by the fourth amendment?

[B4Ranch]

Now, I wondering if he thinks he is royalty or a dictator who doesn't have to obey our laws. President, politician, statesman, Commander in Chief, and now a dictator too?

I guess we should have charged the Clintons with stealing those records. That would have perhaps put a bit more fear into Presidents about obeying the law.

I am sure that Congress will give him the authorization to do what he wants if the fear I see on FR is as widespread as I think it is.

[IrishRainy]

I was responding to this post:

So, 97% of the requests were approved as is, without modification. This is an "unprecedented" rate of rejection? What's the number of annual requests that were approved, as compared with previous administrations?

I think there is a third possibility, however. That SOME on the FISA court don't really understand that the WOT is a war not only for our survival as a country, but as a civilization.

EVERYTHING changed after 9/11. Just like the British lost the Revolutionary War because their antiquated "rules of engagement" were no match for the guerrilla warfare America was waging, so will we too if we don't approach this enemy differently than we have other enemies in the past.

But somehow I think I'm talking to a brick wall here...

[IrishRainy]

Disregarding FISA is NOT illegal.

[Cboldt]

any of the citations the DOJ uses as justification, are not court decisions, but are consenting and dissenting opinions of the justices.

The DOJ cites the dissents as a matter of pointing out that some judges may disagree with the specific point of argument the DOJ raised. In other words, pointing out the presence of dissenting opinions does not mean that the dissent justifies the DOJ action.

A good basic description of the legal arguments was prepared by a couple members of the Federalist Society, and posted to their web site. I converted the brief Q&A "debate" to HTML and posted it -> http://www.freerepublic.com/focus/f-news/1547733/posts <- here.

[Cboldt]

I don't like knee jerk reactions that automatically bottomline to the worse case scenario. From legal wiretaps the next stop is Nazi Germany or Soviet Russia.

That swings both ways. Some in favor of wiretapping beyond the framework of FISA have asserted that without it, there will be a successful mass casualty event.

I hold the view that with or without wiretapping, no security system is perfect, and there will unfortunately be further successful attacks, whether the wiretaps are in place or not. And as with 9/11, both sides will make political hay with the event, and the people will willingly relinquish more freedom.

One might ask, do the present wiretapping activities go far enough? Why limit the surveillance to international calls? What if the order to "go" is contained in a purely domestic call? The current surveillance regime has no objection to the warrant requirement for that possibility, and therefore does LESS of it. Would warrantless surveillance of domestic activity have stopped the OKC bombing?

None of that is a value judgement, BTW. It's just an expression of "the way it is," as I see it, and a suggestion that the issue has a wide range of eventual resolutions.

[Cboldt]

I'm only interested with regards to Presidential Authorities when conducting a war. After almost every conflict there are constitutional challenges that occur and for the most part the lower courts have upheld the Presidential Constitutional Obligations on the conduct of the war and some have made there way to the SC with the SC abstaining from rulings but giving general opinions that they don't want to interfere with the Presidential Authorities.

Lincoln overstepped the Congressional grant that established a perimeter for suspending habeas corpus ...
http://www.freerepublic.com/focus/f-news/1545425/posts?page=260#260
Ex Parte Milligan, 71 U.S. 2 (1866)

The court did NOT rule on Japanese internment in Korematsu. It ruled on the part of the military order (that was authorized by a specific Congressional Act) that said the Japanese could be excluded from militarily sensitive areas (the specification of areas was delegated to the military by the Act of Congress), but did not rule on the Constitutionality of the internment ...
http://www.freerepublic.com/focus/f-news/1545018/posts?page=46#46
Toyosaburo Korematsu v. United States, 323 US 214 (1944).

The first few pages of Korematsu are must read material in light of the current war on terror. Milligan is good too, and no doubt will be a point of law raised in the Padilla case. While very illuminating, Milligan is dense reading.

[Cboldt]

Given the argument put forward by the DOJ it would appear that they are defending the warrantless tapping of U.S. Persons, so I would assume that is what they did/do.

I notice you've composed some substantial rebuttal to the cites used in the DOJ letter to the Senate Intelligence Committee. That sort of contribution would fit the following thread like a glove ...

Assistant Attorney General's Letters to Senate Intelligence Committee ...
Posted on 12/22/2005 10:01:42 PM EST by Peach.

[Just mythoughts]

"We always must remember that it's Bush today, Hillary tomorrow."

Did you sleep through Clintonism? This is today and the issue is protection of this nation against uncivilized lunatics that seek every opportunity to kill as many of US as possible.

Under Clintonism the Constitution did not prevent the Clintons from law breaking, heard of the Barrett report that the Congress is hiding from we the people?

What President Bush is doing legally has not one thing to do with a hypothetical fear of what Hillry might do, laws have not gotten in her way yet.

[Wasanother]

"So we are right back to where we started, the question is does the President have the power to violate the rights granted by the fourth amendment?"

You are right,"question" of Presidential rights so that is why I take offense of anyone who's only reaction is the President "broke the law". Those who makes this bold statement should ask themselves 6 questions before making that assertion, 1) Are all the facts displayed for all to see? 2) Is there a presumption of innocent until proved guilty? 3) Does Individual Civil Liberties conflict with Presidential Constitutional Obligations or vice-versa and if so, who prevails? 4) Did the FISA court overstep their bounds and attempt to prevent the President from executing his Constitutional Obligations? 5) Did congress "accidentally" authorize the President to take all necessary steps to stop further attacks or did they actually mean what they wrote? 6) Who gets to define "reasonable"?

These are not questions that could possibly be answered on any message board because of the number 1 question that I posed on top. Just because the NY Slimes makes a claim of knowledge of the complete program doesn't make it so.

[NewLand]

Your logic would accuse someone of jaywalking who crossed the street to save someone's life! Spare us your legalistic gibberish!

[demkicker]

You're scaring me, unless you are kidding.

[Wasanother]

Also, to assert that the President "broke the law" is an endorsement for the person(s) who gave any information to the Slimes because they would then fall under the Whistle-Blowers status. I'm not willing to call the traitor(s) a hero. If the Slimes want to convince people that the President broke the law then they should not fear disclosing the person(s) who gave them the information because everybody would be protected from this evil, lawbreaking President.

[GingisK]

Sure, the prevention of 9-11-01 attacks is a perfect example of that.

That was a perfect example of the incompetance and corruption that is rampant in the agencies. That attack could have been prevented. There is overwhelming evidence of that.

Furthermore, if the INS did its job correctly, the terrorists wouldn't have been able to get into the US in the first place. This sort of stuff goes on and on.

The people who you wish to have more power are the very ones that brought us Waco and Ruby Ridge. They were able to attack Americans quite handily using the "old powers". It is not wise to place power in the hands of those who have already proven that lust for power trumps their good sense.

Read about the "Sybil Edwards" case.

[inquest]

I think there is a third possibility, however. That SOME on the FISA court don't really understand that the WOT is a war not only for our survival as a country, but as a civilization.

Whether they understand that or not, they don't have the power to change the law. Only Congress can do that.

[inquest]

Disregarding FISA is NOT illegal.

According to FISA itself, it is. It's not worded as being a mere option.

[inquest]

Your logic would accuse someone of jaywalking who crossed the street to save someone's life!

As far as I know, no one has seriously argued a constitutional right to drive through the streets unimpeded by jaywalkers. Comparing that to the protections mandated by the 4th amendment doesn't make your point at all.