Posted on 01/18/2006 8:10:29 AM PST by Perlstein
Leading Conservatives Call for Extensive Hearings on NSA Surveillance; Checks on Invasive Federal Powers Essential
1/17/2006 6:36:00 PM
To: National Desk
Contact: Laura Brinker, 202-715-1540, for Patriots to Restore Checks and Balances, laura.brinker@dittus.com
WASHINGTON, Jan. 17 /U.S. Newswire/ -- Patriots to Restore Checks and Balances (PRCB) today called upon Congress to hold open, substantive oversight hearings examining the President's authorization of the National Security Agency (NSA) to violate domestic surveillance requirements outlined in the Federal Intelligence Surveillance Act (FISA).
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.
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/© 2006 U.S. Newswire 202-347-2770/
LOL, aren't you the one that raised the specter of what you thought were "word games", back in #308??? And now you come to me and ask me to accept that when the court said "constitutional competence", it only meant that the President was really one smart cookie when it came to those tricky constitutional matters???
Sorry, I'm not buying it, your argument dashes itself to pieces against all logic and understanding of the meaning and use of the phrase "constitutional competence", see below.
COM•PE•TENCE n. 3. Law The condition of being legally qualified or admissible; legal authority or jurisdiction: the competence of a tribunal.
Now either the author of the Truong decision, Judge Harrison L. Winter, the Chief Judge of the Fourth Circuit, having 16 years experience on the federal bench, a graduate of John Hopkins College and the University of Maryland Law School and a former Deputy Attorney General of Maryland, was a complete buffoon, or else by "constitutional competence", he meant the obvious, that the President had "constitutional authority" to conduct that foreign intelligence intercepts without a warrant.
When the court added the phrase "not always" to their decision, they were specifically referring to the facts of the instant case wherein an investigation that had began as an exclusively intelligence matter, eventually changed to a criminal investigation, and for that the Truong court held that then the President was required to obtain a warrant.
The point here being, and what the Truong decided, was that for the exclusive purpose of foreign intelligence gathering, the President has the inherent constitutional authority to conduct warrantless searches.
Incorrect, their warrant exception for the President relied on the President's constitutional competence", i.e., the President's constitutional authority.
"In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance."
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Incorrect, as the Keith case made abundantly clear, there exists a major constitutional distinction between warrantless wiretaps for gathering domestic intelligence gathering, versus wiretaps for gathering foreign intelligence gathering. The former was held by the Keith court to be an unconstitutional usurpation of authority, while the latter was held by later courts, to be within the President's constitutional authority, even duty.
Most definitions of the word in the legal sense focus only on qualifications or admissibility, in the sense that certain legal conditions are met in order that a certain type of action may be taken, or that a certain type of authority may be exercised. I know of no case where the word has been understood to mean or imply exclusive authority. And considering the momentous implications it would have to say that the President can not come under Congress's regulations, when Congress is given explicit power to regulate the government, any statement to that effect from a court would have to be unmistakably clear.
When the court added the phrase "not always" to their decision, they were specifically referring to the facts of the instant case wherein an investigation that had began as an exclusively intelligence matter, eventually changed to a criminal investigation, and for that the Truong court held that then the President was required to obtain a warrant.
Once the character of the investigation changed from foreign intelligence to law enforcement, the court's statement about foreign surveillance would no longer apply at all. So there was no reason why the court had to say "not always" if foreign-intelligence surveillance was always exempted from the 4th amendment. If your interpretation of what it said is correct, then it much more likely would have said, "that Executive Branch need not obtain a warrant for purely foreign intelligence surveillance". Same number of letters as in "always", and much more precise, if indeed you've read the court correctly.
inquest: "As I explained, his powers over domestic law enforcement are no less constitutionally sacred than his powers over foreign policy."
Incorrect, as the Keith case made abundantly clear, there exists a major constitutional distinction between warrantless wiretaps for gathering domestic intelligence gathering, versus wiretaps for gathering foreign intelligence gathering. The former was held by the Keith court to be an unconstitutional usurpation of authority, while the latter was held by later courts, to be within the President's constitutional authority, even duty.
Usurpation of whose authority? Who else but the executive branch would be setting wiretaps domestically?
Domestic law enforcement is no less part of his powers than foreign policy. In fact, law enforcement is a responsibility explicitly assigned to him by the Constitution; foreign policy is not. Earlier you were chiding me for allegedly wanting to set up a "two-tiered" system of the President's powers, but now you expressly contradicted me when I said there is not a two-tiered system of his powers.
Thanks.
That's not correct. Presidential authority vs. Congressional authority to enact FISA (specifically the President's authority to spy vs. Congress's authority to make Rules for the Government and Regulation of the land and naval Forces) has never been decided by a court. And as I've already pointed out more than once, Congress's power is granted specifically in the Constitution, and the President's power isn't. So, to assume that the courts will favor the President's implied power over Congress's explicit power is just that, an assumption. Regardless, claiming that this matter has already been settled by multiple courts is simply not true. What I think you fail to realize is that the settled 4th Amendment issue is totally separate from the unsettled Dueling Powers issue.
The President's actions play zero part in determining whether a law enacted by Congress is constitutional. FISA's provisions stand or fall exclusively on their own merit.
Of course, contrary to your claim that numerous appellate courts have already done so, FISA has never been declared unconstitutional. Trust me, your assumption that FISA is unconstitutional is not a binding precedent.
Why are you arguing this long-settled point of law with me when you should be arguing it with its author, CJ John Marshall?
If you think I'm ignoring it, then you haven't understood a word I've said. Just because I don't accept your assertion that FISA is unconstitutional, that doesn't mean I'm ignoring your point. I'm only saying that I think you're wrong, and at the very least you're certainly jumping the gun.
To repeat, I neither said, suggested, nor implied that the Constitution "required [the people] to give the President whatever funds he claims to need".
Right, you only stated that we can't take the funds away without some appropriate reason, as if there's some significant distinction between your comment and my hyperbole.
Did the courts actually rule that FISA didn't conflict with the 4th amendment, or did were the challenges to the law simply rejected for lack of standing to bring a challenge?
Yes. Criminal cases using evidence obtained via FISA surveillance have been challenged on 4th Amendment grounds, with motions to suppress evidence failing. I don't have case names, but if you check out In re: Sealed Case (the FISA Appeals Court decision) it lists several.
Sandy, hope you notice my #344 to inquest, I didn't ping you, because I thought you'd dropped out. I see now, that isn't the case.
Great, you're getting closer. Now take it one more step and ask yourself how the President could be constitutionally "qualified", yet not be constitutionally "authorized" to conduct warrantless foreign intelligence surveillance.
But even better, and to unburden you and I from parsing the judges words, let's look at how the courts have interpreted the judges words and see whether or not they agree with the underlying proposition, that you've been denying, that the Truong court did indeed adopt the government's argument that...
"In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs."
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Now compare that to how later courts read and interpreted the words of the Truong court...
"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment. See United States v. Truong Dinh Hung, 629 F.2d 908, 912-14 (4th Cir.1980), cert. denied,"
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"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."
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Notice that in both the above cases, their decisions relied specifically and primarily upon Truong. Notice too, that both the Duggan court as well as the In re: Sealed Case court both read J. Winter's words as being virtually identical with those presented by the government in Truong.
Let's be clear here, if you wish to argue with the holdings of all these other courts, of course you're free to do so, but then that places your argument on a much different plane, and that plane is not one of trying to inform others what the law is, but rather arguing for what you wish the law to become someday.
As it stands, the best law available on the matter to date, from court after court, clearly and unambiguously has held that the President does have the constitutional authority to conduct warrantless national security intercepts.
So, you're in favor of doing away with the very foundation of the Constitution, the separation of powers?
The Constitution give no such "power to regulate the government", to the degree that such regulation would pertain to the substantive operations of governmental functions that were granted by the Constitution to other branches of governement.
The doctrine you're referring to, Art. I, sec. 8, cl. 18, also known as the "Necessary and Proper" clause, only empowers Congress to create those laws necessary to enable the various branches of government to carry out their own duties, not to limit those duties or powers.
For example, Congress can create (and did) a Department of State, but the overriding doctrine of separation of powers, constitutionally prevents them from also establishing goals, policies, or methods of implementation of foreign policy. That belongs exclusively to the President.
Inadvertently or otherwise, you've touched on what is at the heart of this NSA wiretap issue. It is not principally, as some suppose, a partisan conflict, nor a pro-war versus anti-war argument. The core underlying issue is that the President has effectively thwarted one more unconstitutional attempt by Congress to ignore the separation of powers doctrine.
Congress has been the 800 pound gorilla running amuck in our government for decades. And only recently have we had Presidents (e.g., Reagan and Bush-43) and courts with enough "nads" to begin reigning them in and reminding Congress that they are only one branch of government in a system of three co-equal branches. The "imperial presidency" is a myth created by Congress.
In short hand, the NSA wiretap issue is an executive/legislative power pissing match.
As much as I'm sure the court would be impressed with the re-wording of their decision, it still would be incorrect. If the "foreign intelligence surveillance", is done for the sole purpose of intelligence gathering, then no warrant is needed. But if the "foreign intelligence surveillance" is done for the purposes of criminal prosecution, then a warrant is required. Thus the court was proper in making the distinction between the two as they did.
Not "who", but rather "what". It is an unconstitutional usurpation of constitutional authority for the President (to conduct warrantless national security intercepts for purposes of a criminal prosecution).
So, once again you suggest a two-tiered system of powers, base upon whether they are explicit or inherent powers.
In any event, the Supreme Court has held innumerable times that you are incorrect, see for instance...
"The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations."
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Actually, you didn't limit your suggestion to just the President and neither did my chiding of your suggestion. In any event, it would seem from your preceding comment that it was a richly deserved chiding, but one that didn't seem to have much effect on you.
Please recall, that the two-tiered system of powers I chided you about was one you suggested based on your false dichotomy between explicit and inherent powers.
I sorry, but you're simply in error. The following holdings are just too close on point to leave much room for doubt...
"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."
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"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."
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"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
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"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."
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"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."
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So you wish to create a two-tiered system of constitutional powers based upon the false dichotomy of inherent versus explicit powers and undo 200 years of jurisprudence?
Oops, now you're putting words in my mouth, I've never claimed that "numerous appellate courts have already...declared [IFSA] unconstitutional", those are your words, not mine. What I have said, is that leading case on the matter has concluded that "FISA could not encroach on the President’s constitutional power".
I never said that.
Once more, my contention is simply to quote the conclusion of the In re: Sealed Case court when they said "FISA could not encroach on the President’s constitutional power".
Incorrect, I said without some constitutional reason. It would be unconstitutional to remove those funds with the express purpose (your hypothetical) of undermining a constitutional power of the executive branch.
Actually it's you who needs to take one step closer and explain how simply meeting the qualifications for doing something gives you an unregulable right to do it.
Now compare that to how later courts read and interpreted the words of the Truong court...
If they want to talk about "inherent authority", that's fine, just as long as they don't read into the word "competent" an uncontrollable grant of power. If they do, then they're playing word games. It's that simple.
Let's be clear here, if you wish to argue with the holdings of all these other courts, of course you're free to do so, but then that places your argument on a much different plane, and that plane is not one of trying to inform others what the law is, but rather arguing for what you wish the law to become someday.
So you're of the opinion that judges make law. That puts you at variance with the three most recent nominees to the supreme court (including one who was rejected for not being conservative enough), not to mention the vast majority of posters on this board. Just thought you should know.
The Constitution give no such "power to regulate the government", to the degree that such regulation would pertain to the substantive operations of governmental functions that were granted by the Constitution to other branches of governement. The doctrine you're referring to, Art. I, sec. 8, cl. 18, also known as the "Necessary and Proper" clause...
Nope. Back up four clauses. "To make rules for the government".
If the "foreign intelligence surveillance", is done for the sole purpose of intelligence gathering, then no warrant is needed. But if the "foreign intelligence surveillance" is done for the purposes of criminal prosecution, then a warrant is required.
If the "foreign intelligence surveillance" is done for the purposes of criminal investigation, then it's not "foreign intelligence surveillance", now is it? Hence, the court would have been perfectly justified in saying that warrants for purely foreign intelligence surveillance aren't needed at all, if that's what it intended to say.
Not "who", but rather "what". It is an unconstitutional usurpation of constitutional authority for the President (to conduct warrantless national security intercepts for purposes of a criminal prosecution).
Again with the two-tiered reasoning. He's given the power to prosecute criminal violations of federal law, and he's given the power to look out for national security, yet one of them is more equal than the other, according to you. One of them, you say, doesn't have to be subject to the requirements of the 4th amendment or acts of Congress which Congress is explicitly given power to pass.
inquest: "In fact, law enforcement is a responsibility explicitly assigned to him by the Constitution; foreign policy is not."
So, once again you suggest a two-tiered system of powers
Bull. Quote where I was "suggesting" this. I was just stating a fact, and it's one that can hardly be denied. All you have to do is open the Constitution and read it.
My argument is that the first power should not be treated as being any less sacred than the second, unlike the way you would treat them.
So what? You're the one claiming that FISA encroaches on the President's authority, not me. Do you see no distinction between Congress's ensuring that the President doesn't act beyond his constitutional authority and Congress's actually encroaching on the President's actual constitutional authority?
Bottom line, the President has no constitutional authority to either abuse or act beyond his constitutional authority. FISA prevents exactly that--Presidential abuse of authority and Presidential actions not Constitutionally authorized. Please, show me one provision in FISA that prevents the President from performing any acts which he is constitutionally authorized to do.
An explanation is unnecessary, when all that is required is to simply note that the Truong court held that the President had the constitutional "qualifications" to conduct foreign intelligence surveillance without a warrant. The "unregulable" part is your fiction, since the court clearly chose to regulate it by discerning between intercepts for made the sole purpose of foreign intelligence gathering, versus those done for purposes of criminal prosecutions.
I'll pass along your advice to the court, I'm sure it will be appreciated.
It's not my opinion, it's the plain fact of the matter, not only that they do make law, but they are constitutionally authorized and duty-bound to do so, and that has been settled law in this country for over 200 years.
To the layman, the term "law" is generally understood to mean "statutes", like those passed by a legislative body. But to a legal professional, that same term encompasses, the Constitution, the statutes as well as the decisions that interpret the Constitution and the statutes.
So using the layman's limited definition, no, a judge may not "make law". But when applying the a real definition of the word "law", it is completely correct to state that judges make law.
Appreciate the heads up. ;-)
Ouch! This is gonna sting a bit, but you've completely mis-read the 14th clause.
I posted it below, so you can note that there is no comma between "government" and "and regulation", meaning that "government and regulation are a single phrase referencing "the land and naval Forces". Clause 14 has nothing to do with "making rules for the government" in the sense of the three co-equal branches of government, it refers only to the military. Note also, the common military related theme in clauses 11-16.
As I said, the relevant clause is the 18th, the "Necessary and Proper" clause...
"To make Rules for the Government and Regulation of the land and naval Forces;"
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Incorrect, that quote is not my words, those are the words of the Truong court.
Bottom line then, we are in agreement, as that is precisely what all those court cases held, as for example...
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."
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The separation of powers doctrine forbids Congress from intruding in areas that are exclusively within the authority of the President. And as the above cite clearly reflects, the President does have the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.
Not quite sure how it happened, but #355 was supposed to have been pinged to you.
The former of which, you say is unregulable by Congress, even though the latter constitutes no less a part of the President's granted powers. Thus you're creating the two-tier system of the President's powers that you claim to disdain.
I'll pass along your advice to the court
The advice is to you, in reading their opinions. You're concluding from their opinions that this particular power of the President is untouchable by Congress, when in fact only your "sealed case" makes such a claim, and even then only in dictum.
To the layman, the term "law" is generally understood to mean "statutes", like those passed by a legislative body. But to a legal professional, that same term encompasses, the Constitution, the statutes as well as the decisions that interpret the Constitution and the statutes.
You mean to legal professionals like John Roberts and Sam Alito? I noticed you conveniently amended out the part of my sentence to you where I cited their disagreement with you. De Nile ain't just a river in Egypt.
Clause 14 has nothing to do with "making rules for the government" in the sense of the three co-equal branches of government, it refers only to the military.
Even that being the case, it includes laying down the rules of war. That holds especially true when those rules are designed for the protection of U.S. citizens.
Incorrect, that quote is not my words, those are the words of the Truong court.
The only mentions the Truong decision made of FISA were supportive of FISA. I know you know this, because I pointed that very fact out to you earlier in the thread.
Oh please. Do you or do you not believe that FISA is repugnant to the Constitution?
If you think FISA is constitutional, then why did you (in multiple posts) quote Marbury's "a law repugnant to the Constitution is void"? What exactly was your point with that quote?
If you think FISA is unconstitutional, explain why. Do you think it encroaches on the President's authority or not?
Now, to repeat the questions which you missed in my previous post:
Do you understand the distinction between Congress's ensuring that the President doesn't act beyond his constitutional authority and Congress's actually encroaching on the President's actual constitutional authority?
Can you show me one provision in FISA which prevents the President from performing any acts which he is constitutionally authorized to do?
For the umpteenth time, that is incorrect, the two-tier system of powers that you attempted to introduce, and which I rejected, was a system you constructed on the false dichotomy of inherent versus explicit powers. There is no basis in law for such a system, and there is no comparison between that and what the Truong case held. Please stop beating this dead horse.
No, my conclusions were based upon the court's opinions in all four of the cases I posted. And yes, that particular power of the President's is untouchable by Congress, thanks to the Separation of Powers doctrine.
Your charge is demonstrable false, I quoted the entire sentence. Please show me where any part of your sentence has been, as you say, "conveniently amended out": "So you're of the opinion that judges make law."
First, you offered no citation to your claim regarding Roberts and Alito, that I could review for context. Second, there is no indication in your claim whether either one was speaking of "law" in a purely legislative sense or a formalistic sense. Therefore, it made no sense to respond to your point.
First, such a remark is not even peripherally related to the topic under discussion. Second, you are dead wrong on thinking that the 14th clause means Congress can "lay down the rules of war". It means no such thing, you're way off the mark.
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