Skip to comments.Bush was denied wiretaps, bypassed them (FISA Court denied them in unprecedented numbers)
Posted on 12/27/2005 10:47:23 AM PST by 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.
No. As you probably well understood I mean present-day lawyers.
(BTW: George Washington's order to his army once he learned of Benedict Arnold's treachery: If you capture him, hang him.)
There are some people around here who either are extremely dense, or deliberately act that way as a way of avoiding the issue. The poster that you're conversing with definitely falls into that category. Her objective (assuming there is one) is to make you go as crazy as possible explaining things that any ten-year-old could get right away.
Let me rephrase the question, since the 'what rights have you lost' question is misleading.
What is the down side to this NSA wiretapping program? Since there aren't any allegations of wrongdoing, other than the programs existence, what harm is there in having the NSA screen calls from Al Qaida agents? Assuming this program is exactly what the NYT claims it is, i.e. telephonic intercepts of calls from Al Qaida agents overseas to persons within the U.S., what is the problem?
There you go ... much better question, and takes the only point I was making in my post 468 to Howlin - the question "what rights have you lost" is not useful to probe the academic question of legality and Constitutionality.
Why do I call it academic? Because the President has awesome power - Lincoln violated the habeas corpus provision in the Constitution and "got away with it," and the fact that Milligan was eventually vindicated is at the end of the difference of opinion, "academic." He WAS incarcerated, he WAS denied acces to the courts, and there was nothing he could do about it. "So goes the war."
In general, there is a risk of harm in permitting one branch of government to run without checks from at least one other branch. Obviously, there is NO downside to snooping on those who do wrong, the question is how much intrusion is acceptable in the tradeoff; how much oversight should the public expect, if any, of executive action?
The War on Terror presents some very difficult challenges in balancing intrusion on innocent (which has cost and provacy aspects) with opportunity to stop attacks. One thing that I fear is that with each successful attack (and no defensive scheme is impermeable), there will be a call for more government. I predict that there will be a call for gun registration and confiscation in the next two or three generations, but it'll be for our own good.
Here we go - Korematsu's conviction was overturned.
KOREMATSU V. THE UNITED STATES, 584 F. SUPP. 1406 (N.D. CAL. 1984)
For detention in the same era, see Ex parte Endo, 323 US 283 (1944). It's a good read, and I urge you to peruse it.
Good brief review of history in Brief of Stone noted below.
WASHINGTON, D.C. (October 3, 2003) -- Fred Korematsu filed a "friend-of-the-court" brief in the Supreme Court of the United States today asking the high court to review the constitutionality of prolonged executive detentions under the Bush administration's "war on terrorism." The amicus brief was filed in the cases of Khaled Odah v. United States, Shafiq Rasul v. George W. Bush and Yasir Hamdi v. Donald Rumsfeld. Each of the plaintiffs has been held without formal charges, without any fair hearing to determine "guilt" or innocence, without the assistance of counsel, and without any meaningful judicial review.
"This is an extraordinary convergence of events, spanning sixty years of this nation's history," said Geoffrey R. Stone, primary author of the Korematsu brief. "More than sixty years ago, Mr. Korematsu had the courage to challenge the constitutionality of President Franklin Roosevelt's 1942 Executive Order that authorized the internment of 120,000 individuals of Japanese ancestry on the West Coast of the United States. He has committed himself to ensuring that Americans do not forget the lessons of their own history."
Korematsu was convicted of refusing to obey the internment order and sent to prison. In Korematsu v. United States, 323 U.S. 214 (1944), the Supreme Court upheld his conviction, ruling that because the United States was at war, the government could constitutionally intern him [Cboldt: Nope - it did not so rule! See the case], without a hearing, and without any adjudicative determination that he had done anything wrong [he was in violation of an administrative order]. In 1983, Korematsu's conviction was overturned by Judge Marilyn Patel of the United States District Court in response to a writ of coram nobis, filed on his behalf by a team of attorneys, many of whose parents had also been interned. More than half-a-century after his internment, Korematsu was awarded the Presidential Medal of Freedom, the nation's highest civilian honor, for his courage and persistence in opposing this injustice. "We should be vigilant to make sure this will never happen again," Korematsu said.
The amicus brief argues that the petitioners in these cases have been unconstitutionally deprived of their liberty because they have been held for extended periods of time without any opportunity for a fair hearing before a competent tribunal.
"The extreme nature of the government's position in these cases is reminiscent of its positions in past episodes, in which the United States too quickly sacrificed civil liberties in the rush to accommodate overbroad claims of military necessity," explained attorney Stone, the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago. "In order to avoid repeating the mistakes of the past, the Supreme Court should make clear in these cases that the United States respects fundamental constitutional and human rights - even in time of war."
"These cases present the Supreme Court with a direct test of whether it will meet its deepest constitutional responsibilities to uphold the law in a clear-eyed and courageous manner," Stone added
In addition to Stone, Korematsu is represented by David A. Strauss of the University of Chicago Law School and Stephen J. Schulhofer of New York University Law School.
And from the decision that vacated the conviction ...
This court's decision today does not reach any errors of law suggested by petitioner. At common law, the writ of coram nobis was used to correct errors of fact. United States v. Morgan, 346 U.S. 502, 507-13, 74 S.Ct. 247, 250- 253, 90 L.Ed. 248 (1954). It was not used to correct legal errors and this court has no power, nor does it attempt, to correct any such errors.
Thus, the Supreme Court's decision stands as the law of this case and for whatever precedential value it may still have. Justices of that Court and legal scholars have commented that the decision is an anachronism in upholding overt racial discrimination as "compellingly justified." "Only two of this Court's modern cases have held the use of racial classifications to be constitutional." Fullilove v. Klutznick, 448 U.S. 448, 507, 100 S.Ct. 2758, 2789, 65 L.Ed.2d 902 (1980) (Powell, J., concurring and referring to Korematsu and Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943)). See also L.H. Tribe, American Constitutional Law §§ 16-6, 16-14 (1978). The government acknowledged its concurrence with the Commission's observation that "today the decision in Korematsu lies overruled in the court of history."
An excellent article discussing the legal aspects:
FISA vs. the Constitution
-- snip --
"Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country."
Ah, so there's the rub. They weren't trying to correct the precedent set by the higher court. This ruling came up in discussions about whether lower courts had the power to go against legal holdings by higher courts, and this was cited as an example of a lower court doing just that. But as the above shows, the court was not doing that after all.
Thanks for the link. That was very helpful.
Except the limitations that FISA imposes do not conflict with the Constitution. Congress is given express power to make rules for the government.
If the objection is that they "unduly" encroach on executive power, that's the primary reason why the President was given veto power. That's the tool that was intended for restraining congressional encroachments.
Cases are frequently misconstrued, even (maybe especially) by courts.
Marbury v. Madison is cited for the proposition that the Court can set or make law (which it can); but by "reading on" a mere two paragraphs, one cannot escape the statment by Marshall that Courts must rule in subservience to the Constitution, and to statute - and when THOSE two authorities clash, it is the Constitution that must prevail.
That's a point that I've constantly tried to make to others on this amd other fora, often to little avail. Marshall was saying, not that the court had the "power" to strike down unconsitutional laws, but that it was powerless to uphold them. That's a very important distinction.
Things get real interesting around the "ultimate reaches" of power. The War Powers Resolution of 1973 was vetoed by Nixon, but put into law by a Congressional supermajority. The Constitutionality of that law has not been put to the test, but at least Dick Cheney (and many others) hold that it represents an unconstitutional encroachment by Congress. So far the encroachment has been tolerable, but that doesn't mean it will always be followed by a President.
The question of whether or not FISA provides an unconstitutional exercise of legislative power over presidential power is likewise not amenable to a "neat" solution. If the President persists in action that Congress finds objectionable, the House has the power of impeachment. This is a political power at its core, with ultimate exercise by "we the people" at the voting booth.
Sorry, I should have pinged you guys too for post #493
The President doesn't put anyone on the FISA court. The CJ selects them.
Perhaps Louis Farrakhan was receiving phone calls from his buddies, and the judges didn't think that Louis could possibly be a terrorist.
Yeah...it was for six months though. However the eventually the dictators didn't leave when they were supposed to and eventually declared themselves emperors and the republic was finished.
It's sort of like asking what's the harm of violating the humans rights of innocent people. If you have to ask the question then you need to look at your value system.
I'm supporting appropiate judicial oversight to protect the republic from a grave crisis - the problem of unchecked powers given for indefinite ill-defined periods of time. If the President wants expanded powers then he needs to tell us what the clear well-defined exit strategy for the War on Terror is - otherwise he has to accept some oversight from the other branches of government just as the founders intended.
it does not apply to foreign intercepts. and as we saw in the property searches of aldrich ames, it does not apply to persons who are agents of foreign powers.
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