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.
http://www.usnewswire.com/
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/© 2006 U.S. Newswire 202-347-2770/
LOL, one of the first rules of good debate practice is to never allow your opponent to divert you into addressing unnecessary matters!
All I need offer is just what the In re: Sealed Case court concluded: "FISA could not encroach on the President’s constitutional power".
And what did the court say were the President's constitutional powers? "[T]he President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information".
Go back and take a look. At the time you were having difficulty coming to grips with the maxim that "the Constitution trumps the ordinary acts of Congress". You were supposing that it was two constitutional powers in collision, when in fact, and as the Marbury court explains, it is simply a case of a statute of Congress that came in conflict with the Constitution.
Trust me, it was not that I missed them, it was that they missed the point under discussion. And that point is, whether the President had constitutional authority to conduct warrantless intercepts of foreign intelligence information. And that question has been asked, answered and proven six different ways from Sunday with a resounding YES!
IF, as some of the President's opponents have claimed, that FISA does in fact purport to make the warrantless NSA intercepts illegal, then yes, those sections of FISA would be "repugnant to the Constitution", and "encroaching on the President's authority", and an unconstitutional violation of the Separation of Powers doctrine.
But to get there, you've got to be able to ante up that "IF", and to date, no one's been able to do that definitively.
*What* NSA intercepts? You don't know what the NSA is intercepting any more than I know. And you most certainly don't know whether the intercepts are constitutional if you don't even know who or what's being intercepted or where or for what purpose. You're just taking the President at his word and then making assumptions from there.
Anyway, since you don't want to answer my questions, I'll answer them for you. :-)
There is *no* provision in FISA which prevents the President from doing anything which he has Constitutional authority to do. So how the heck can FISA possibly encroach on his authority when the *only* thing FISA prevents is abuse of that authority? Answer: Since FISA only prevents the President from conducting unconstitutional searches, then FISA rather obviously doesn't encroach on the President's authority (since the President has no authority to conduct unconstitutional searches).
In a nutshell: FISA only prevents unconstitutional acts, yet the President claims that FISA is too constraining.
The intercepts that James Risen disclosed in the infamous NYT article on Dec. 13th and which the President has commented on.
But we do know, the President has said that the NYT disclosures involved national security intercepts of communications between suspected terrorists and U.S. residents.
Of course we don't every fact with certainty, all we can do is work from the public record that is before us. But most importantly we don't jump to the conclusion, without any evidence, that the President must be guilty of doing something wrong because he has made warrantless foreign intelligence intercepts. The courts have been clear about their legality for decades.
Well, since all we have is your opinion that FISA doesn't encroach on the President's authority, I'll guess we'll have to wait on answering your question!
Ooops, presuming something not in evidence again Sandy!
So you keep repeating, with zero evidence to support your opinion.
Absolutely agree with you there. More importantly, when the President gets caught breaking the law, we don't take the President at his word, without any evidence, that his violations of the law were all hunky-dory. Unlike you, I haven't come to a conclusion yet. I'm only telling you that the situation is nowhere near as cut and dried as you seem to believe. I mean, in the first post of yours that I replied to, you were cutting and pasting quotes from cases concerning constitutionally authorized searches. It seemed rather obvious at that point that you weren't aware that FISA intentionally and precisely--from beginning to end--conforms to that case law. And now, a week or so later, you still don't grasp that FISA has never been shown to conflict with the case law.
Anyway, hope you're feeling better. I'm outta this thread.
What a waste, from the moment you engaged this debate, to this, your supposedly final comments, your replies have been consistently bereft of any quotes, cases, citations, links, authorities or any other supporting material whatsoever to give life to your claims. What you have brought, opinion, and passion, simply can't mask over their lack of substance.
And one more time, you are demonstrable incorrect. Not only are the President's critics claiming he violated FISA (which would put then put the act in conflict with the case law), but we now know that Congress itself was pointedly warned about this very critical flaw even as they were fashioning FISA.
"The current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution."
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You're the one making the claim that FISA is repugnant to the Constitution, not me. So the onus was on you, not me. Just because the President may claim that FISA encroaches on his powers, that doesn't make it so. You're familiar with Marbury, so you should know darned well that neither the President nor you has the final word on whether a law is unconstitutional. It's the Court's call. Yet, even though Congress intentionally left room for the Supreme Court to strike down or reinterpret the "exclusive means" provision (see H.R. CONF. REP. 95-1720), neither the Supreme Court nor any lower court has ever done so.
I asked you to show me one provision in FISA which prevents the President from performing any acts which he is constitutionally authorized to do. You wouldn't do so. Yet you think I owe *you* a cite?
"The current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution." --Att. Gen. Griffin Bell
Well obviously FISA doesn't recognize an "inherent power of the President to conduct electronic surveillance", because the President only has inherent authority to conduct warrantless foreign intelligence surveillance. And the AG acknowledged that distinction when he said, "[FISA] does not take away the power [of] the President under the Constitution." Meaning, FISA doesn't remove the President's actual inherent authority. Well no kidding, that's what I've been trying to tell you.
You do realize, don't you, that your statement makes no absolutely no sense? Perhaps you're suggesting a difference between "electronic surveillance" and "foreign intelligence surveillance"?
Then, please, in your own words, just so that we're clear, what in your opinion is precisely the President's actual inherent constitutional authority to conduct intelligence surveillance?
First, it's only in your fevered imagination that I ever "attempted to introduce" any such thing. And second, your posts show that you haven't rejected this false dichotomy. Is the President's power of domestic law enforcement untouchable by Congress - yes or no?
inquest: "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"
No, my conclusions were based upon the court's opinions in all four of the cases I posted.
I didn't say your own conclusions weren't "based" on all four cases. I said that only one of them actually makes the claim about the untouchability of this particular power of the President by Congress, and only in dictum.
Please show me where any part of your sentence has been, as you say, "conveniently amended out"
The part with the three dots. Just jump back to the post you were responding to to see what was in place of the three dots. Roberts (who was not a rabid extremist at all) said in his opening statement at his hearings, "Judges are like umpires. Umpires don't make the rules; they apply them."
inquest: "Even that being the case, [clause 14] includes laying down the rules of war"
First, such a remark is not even peripherally related to the topic under discussion.
This discussion has nothing to do with warmaking?
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.
That's right, military matters have nothing to do with war. Good thing we have you to clear these things up for us.
Unless you've got something substantive to add to the topic, I'm out of here.
I tried several times to get you to address that point, but you sidestepped it or equivocated each time. That itself speaks volumes.
One more time, I am not the author of those "conclusions" you object to, they are the conclusions of multiple appellate courts. And your unsupported opinion that those courts had "no legal justification" for making those conclusions, can not be taken seriously.
One more time, I am not the author of those "conclusions" you object to, they are the conclusions of multiple appellate courts.
One more time, only one court that you quoted made such a conclusion about Congress's powers over these exercises of presidential power, and only in dictum. As for the other opinions, it is indeed only your conclusion that they support this view.
And this view is not only unsupported but unsupportable. There's nothing in the Constitution that so much as intimates that some of the President's powers are more sacred than others. Nor is there any such thing in the writings of any of the founders.
Then take your argument up with the appellate courts judges who identified the distinctions you disagree with so vehemently. While I agree with their conclusions, it is not on-point to the topic under discussion, which is the legality of the President conducting warrantless foreign intelligence intercepts.
I'm taking it up with you who's alleged that these courts have done so. Outside of that one piece of dictum from that one opinion at the bottom of #289, all they've established is that foreign surveillance is a power of the President, not that it's any more sacred than any of his other powers.
No thanks, I'm simply not interested in your digression. The topic under discussion is the legality of the President conducting warrantless foreign intelligence intercepts. Do you have something to add to that, or don't you?
Which is answered by the fact that Congress has the constitutional authority to regulate his behavior in that area. It has every bit as much power to regulate him in that area as in any other area where he's authorized to act, such as domestic law enforcement. And you've provided no evidence that any appellate court has issued any holdings (as opposed to dicta) to the contrary.
Article I, section 8, clause 18, provides Congress with only a limited right to regulate the activities of the executive branch. The separation of powers doctrine defines what those limits are, and it prohibits Congress from enacting any regulation that would infringe on a constitutional grant of authority for the executive branch.
Virtually every appellate court to have ruled on this matter have concluded that the President had inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.
Therefore, any attempt by Congress to limit the President's constitutional grant of authority would be a violation of the doctrine of the separation of powers, and thus unconstitutional.
That is demonstrably incorrect, since all four cases I cited concluded the President had such inherent constitutional authority. If you continue with this false assertion, you will simply force me into reposting them, your choice.
But aside from that, I've let you slide on your misstatement of what constitutes "dicta" (and the value of dicta in legal arguments), for some time now, but it has come time to call you on your dishonesty.
When the leading case in this matter, In re: Sealed Case, stated...
"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."...that was NOT dicta. Dicta is "opinions that are extraneous to the line of reasoning that leads to the decision in the case". In the above example, the courts finding was neither opinion, nor extraneous to the line of reasoning that lead to the decision. The court's finding of fact was necessary to assist in answering the question implicitly raised by the appeal as to whether Truong articulated the appropriate constitutional standard.
It is dishonest for you to mislabel those case quotes as dicta, or even for you to suggest that dicta is somehow an improper legal argument, had I used it.
That is demonstrably incorrect, since all four cases I cited concluded the President had such inherent constitutional authority.
As you can see above, I didn't say that these courts didn't hold that the President has "inherent constitutional authority". I said that they didn't hold that his "inherent constitutional authority" in one area is any more sacred than in any other.
When the leading case in this matter, In re: Sealed Case, stated... "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." ...that was NOT dicta.
That's not what I said was dictum. I told you already that the dictum was what you highlighted at the bottom of #289. It was not necessary to the resolution of that case, because the court there did not rule against any part of FISA.
Can you say RINO? The great Oz has spoken
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