FISA Fallacies (Bush's unconstitutional critics)

National Review ^ | 01-03-06 | Rich Lowry - Commentary

[smoothsailing]

January 03, 2006, 3:23 p.m.

FISA Fallacies

Bush's unconstitutional critics.

Is it written somewhere that the Constitution can be violated only by the president? One would think so, given the debate over the secret National Security Agency program to monitor, without court approval, calls between suspected al Qaeda operatives overseas and people in the United States. Opponents of the program say President Bush has trashed the Constitution, in particular the Fourth Amendment's prohibition against unreasonable searches.

The Constitution, however, doesn't exist solely to constrain the executive, as those braying about the NSA wiretaps seem to suggest. It confers powers on the executive as well as limiting them. If those powers are abridged by another branch of the government, the Constitution is being violated — and not, obviously, by the president.

Thus, only one player so far in the NSA controversy has been held by a court to have probably violated the constitution, and he's a judge. Judge James Robertson resigned from the Foreign Intelligence Surveillance Act court — the secret court that approves domestic wiretaps related to national security — to protest the NSA program, making him something of a cause celebre among Bush bashers. But he's an odd hero, given that his contribution to the debate over the executive's surveillance power was a flagrant error.

In a 2002 decision, Judge Robertson and others on the FISA court imposed restrictions on the Bush administration's conduct of foreign-intelligence investigations that weren't mandated by the language of the 1978 FISA statute, and that had been explicitly made unnecessary by the 2001 Patriot Act. The Bush administration appealed, and the FISA court of review issued a stinging rebuke to Robertson, et al.

The court of review, apparently a stickler for such things, said the FISA "court did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied." Besides that, it was world-class jurisprudence. By effectively trying to micromanage the Justice Department, the decision continued, "the FISA court may well have exceeded [its] constitutional bounds."

Would that the court could permanently monitor the debate over the NSA program. Democrats who argue that Bush has abused the Constitution are, like Judge Robertson, themselves Constitution-abusers. The president has the authority under Article II of the Constitution to defend the United States. If he can bomb the nation's enemies overseas without a court's approval, he certainly can listen to their conversations. (FISA, which requires a special warrant for foreign-intelligence surveillance in the U.S., doesn't apply abroad, making cross-border calls a murky area).

Every administration, liberal or conservative, has claimed this warrantless surveillance power, and no court has ever denied it. The FISA court of review explained, citing the 14th Circuit's 1980 decision in a case involving the surveillance of a Vietnamese spy named David Truong, "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." The court added, "We take it for granted that the President does have that authority."

The court in the Truong case noted that the executive "not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs." And the Constitution's framers knew what they were about, according to the Truong court: "Attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign-intelligence initiatives."

That argument rings all the truer in the Age of al Qaeda, when a fast-moving, amorphous enemy operates both outside and within U.S. borders. Like it or not, the president has the constitutional authority to wage the war on terror. His detractors don't like it, so they pretend the authority doesn't exist, and trample on the Constitution in the process.

.................................

— Rich Lowry is author of Legacy: Paying the Price for the Clinton Years.

(c) 2005 King Features Syndicate    

http://www.nationalreview.com/lowry/lowry200601031523.asp    

[mnehring]

The whole illegality of this issue is a complete myth.. Asking why the President didn't go to FISA is about as logical as asking a driver why they didn't stop at a green light. It just isn't necessary according to the law.


EXECUTIVE ORDER 12949

- - - - - - - FOREIGN INTELLIGENCE PHYSICAL SEARCHES



By the authority vested in me as President by the Constitution and the laws of the United States, including sections 302 and 303 of the Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C. 1801, et seq.), as amended by Public Law 103- 359, and in order to provide for the authorization of physical searches for foreign intelligence purposes as set forth in the Act, it is hereby ordered as follows:

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

Sec. 2. Pursuant to section 302(b) of the Act, the Attorney General is authorized to approve applications to the Foreign Intelligence Surveillance Court under section 303 of the Act to obtain orders for physical searches for the purpose of collecting foreign intelligence information.

Sec. 3. Pursuant to section 303(a)(7) of the Act, the following officials, each of whom is employed in the area of national security or defense, is designated to make the certifications required by section 303(a)(7) of the Act in support of applications to conduct physical searches:

(a) Secretary of State;

(b) Secretary of Defense;

(c) Director of Central Intelligence;

(d) Director of the Federal Bureau of Investigation;

(e) Deputy Secretary of State;

(f) Deputy Secretary of Defense; and

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that capacity, may exercise the authority to make the above certifications, unless that official has been appointed by the President, by and with the advice and consent of the Senate.

WILLIAM J. CLINTON
THE WHITE HOUSE,
February 9, 1995.

[icwhatudo]

1. The president has the right
2. His actions do violate FISA

These are two separate issues. I agree with Bush.

[mnehring]

2. His actions do violate FISA

Actually, his actions don't violate FISA. The aforementioned executive order amends FISA and gives the President and Attorney General the power to approve physical searches, without a court order, to acquire foreign intelligence information...

The problem is many are reading only the original text of FISA and not the amendments to it.

[TexasCajun]

Thanks for posting Slick's E.O. 12949.

Jimma had a similar E.O. but not sure the number.

Do E.O.s expire at the end of the executing president's term?

[mnehring]

Do E.O.s expire at the end of the executing president's term? Not unless specifically outlined in the order. An executive order is as legally binding as a law passed by congress per Article II, Section 1 of the Constitution which grants to the President the "executive Power." Section 3 of Article II further directs the President to "take Care that the Laws be faithfully executed." To implement or execute the laws of the land, Presidents give direction and guidance to Executive Branch agencies and departments, often in the form of Executive Orders.

[TexasCajun]

I bet The Aldrich Ames Spy Family was busted with help of this E.O..

One of the few successes of The Slacker.

[smoothsailing]

I did see this on the "Connecting the Dots" thread. Good of you to keep it handy!

[icwhatudo]

Section 1. Pursuant to section 302(a)(1) of the Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

Yes, thats what clinton did, but it states "Pursuant to section 302(a)(1)"

The problem is that I've read that that section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." Can someone link?

P.S. I'm in agreement Bush has the power, FISA imho is trying to undermine the constitution.

[HiJinx]

FISA imho is trying to undermine the constitution.

Which is exactly what the article says Judge Robertson did, and for which he was rebuked.

The problem is that I've read that that section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person."

Speaking from experience, there are exceptions to that language. We were constantly reminded that at no time is an asset of our intelligence agencies allowed to collect intelligence from a United States Person...unless specifically directed on a case-by-case basis.

[smoothsailing]

I agree with President Bush as well. I believe his inherent powers as CIC trump the court. I'm not a lawyer, that's just the way I read the constitution.

[mnehring]

Sub Section 1801, a (3) and (4) defines 'Foreign Power' as:

(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;

Therefore it could easially be read (as how Clinton used this in the Aldrich Ames case) that if someone is controlled by a foreign government or is engaged in terrorism, he is defined as a Foreign Power and not defined as a protected citizen.

[mnehring]

Sub Section 1801, a (3) and (4) defines 'Foreign Power' as:

(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
(4) a group engaged in international terrorism or activities in preparation therefor;

Therefore it could easily be read (as how Clinton used this in the Aldrich Ames case) that if someone is controlled by a foreign government or is engaged in terrorism, he is defined as a Foreign Power and not defined as a protected citizen.

[Cboldt]

he aforementioned executive order amends FISA and gives the President and Attorney General the power to approve physical searches, without a court order, to acquire foreign intelligence information...

I believe that EO recapitualtes a different section of FISA. 50 USC 1802 relates to electronic surveillance, 50 USC 1821 relates to physical searches, both are part of FISA.

http://www.fas.org/sgp/crs/intel/RL30465.pdf <- good summary of the act

http://www.mail-archive.com/volokh@lists.powerblogs.com/msg05152.html <- decent analysis

[mnehring]

This part defines the terms in section 302(a)(1).
http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001801----000-.html

Something else ignored by the critics.

[mnehring]

..and just to add one more point of clarification

(i) “United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

[Cboldt]

50 USC 1821 <- Definitions
50 USC 1822 <- Surveillance law

I think you'll see the language of the EO tracks the language in the statute closely.

If the current NSA activity is clearly withing FISA, there is no reason to "keep the existence of the program secret." The existence and parameters of the program are expressed in statutory law, with a significant amount of case law now behind it.

[mrsmith]

"The aforementioned executive order amends FISA "

Executive orders are not law nor do they amend law.

This was a directive from one president that resolved, to his satisfaction, the conflict between FISA and his inherent powers.

Nonetheless it's good to remind people that Dem- and all- presidents had the same view as president Bush. The media never will!

[Alberta's Child]

It's worth noting that "the court" is not -- and was never intended to be -- the ultimate arbiter of U.S. law. The executive, legislative, and judicial branches of government act as checks and balances on each other, and there is nothing in the U.S. Constitution that precludes the legislative and executive branches from telling the judiciary to "Go f#%& off!" on any given issue. And "f#%& off" they will -- because the judiciary is the one branch that has absolutely no means of enforcing its decisions.

[mnehring]

http://www.thisnation.com/question/040.html

Executive Orders (EOs) are legally binding orders given by the President, acting as the head of the Executive Branch, to Federal Administrative Agencies. Executive Orders are generally used to direct federal agencies and officials in their execution of congressionally established laws or policies. However, in many instances they have been used to guide agencies in directions contrary to congressional intent. ...


Executive Orders do not require Congressional approval to take effect but they have the same legal weight as laws passed by Congress. The President's source of authority to issue Executive Orders can be found in the Article II, Section 1 of the Constitution which grants to the President the "executive Power." Section 3 of Article II further directs the President to "take Care that the Laws be faithfully executed." To implement or execute the laws of the land, Presidents give direction and guidance to Executive Branch agencies and departments, often in the form of Executive Orders.