WHAT IF WIRETAPPING WORKS?

First, 50 USC 1802 is entirely inapplicable to the present discussion because that section deals solely with surveillance of non-U.S. persons. And in this discussion we are specifically addressing those situations that include a U.S. persons.

Second, even if §1802 did permit surveillance of U.S. persons, it does not contain, as you assert, the word "known", nor does the language you highlighted even imply such a standard.

Third, your standard that the subject be a "known" agent of a foreign power for the surveillance to be "reasonable", is so out of touch with legal reality, that it is even a greater standard than the courts already require for regular 4th Amendment searches, where the standard of reasonableness is "probable cause".

Fourth, since the In re: Sealed Case court held that "the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information", then the standard of reasonableness required in such cases is clearly less than the "probable cause" needed had a warrant been required. That would mean that, at most, a standard of "reasonable suspicion" might be required.

Fifth, the issue you raised in #37 regarding pre-FISA versus post-FISA court decisions is irrelevant, since the courts (both pre-FISA and post-FISA) based their holdings on a constitutional right of the President, and Congress is forbidden from infringing on a constitutional right.

ndt:

national security

Katz vs. United States

First, Katz was NOT a case dealing in any shape, manner or form with "national security" wiretaps. It was a simple domestic law enforcement case that involved wiretaps.

Second, Contrary to what you imply with your quote, Justice Douglas and Brennan's words are only a concurring opinion and not the decision of the majority. Moreover, their comments are dicta and not a holding by the court.

Third, The only time the phrase "national security" is used in the majority decision, was when Justice Stewart stated in a footnote...

"Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case."

--Katz v. United States, 389 U.S. 347, 358 (1967), J. White concurring

Fourth, Not only did Justice Stewart note that the Katz court made no holding as to warrant requirements for national security cases, but Justice White, in a now famous concurrence stated...

"We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable."

--Katz v. United States, 389 U.S. 347, 364 (1967), J. White concurring

Fifth, Both Justice Stewart and White noted that the issue of national security wiretaps wouldn't be considered by the Katz court, however since then the issue has been heard by numerous courts and virtually all them have held that "the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

Sixth, Your opening contention that the "label of national security does not give the President free reign to bypass the fourth amendment and hence probable cause" flies in the face of all relevant court holdings on the matter of foreign intelligence gathering, and specifically those cases shown in post #25.

You may not like current state of the law, but at some point you've got to come to grips with the simple truth that the courts have unanimously said you're wrong.

Good night...

"50 USC 1802 is entirely inapplicable to the present discussion because that section deals solely with surveillance of non-U.S. persons. And in this discussion we are specifically addressing those situations that include a U.S. persons."

Are you suggesting that the bar for evesdropping on U.S. persons is even lower? Yes, this is the law for foreign intelligence of both U.S persons and foreign agents, thats why they call it FISA, look up the acronym. It specifically bars warrantless wiretapping of U.S. persons.

If you know of another law that superseded this please post.

"even if §1802 did permit surveillance of U.S. persons, it does not contain, as you assert, the word "known", nor does the language you highlighted even imply such a standard."

The A.G. has to certify under oath the it is directed at communications exclusively among foreign powers, AND that there is no substantial likelihood that it will capture the communications of a U.S. person.

How can you possibly certify that under oath without knowing that your target is an agent of a foreign power? Please explain to me how you would do that.

"since the In re: Sealed Case court held that "the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information..."

They found that the President did have the power because he showed probable cause that the target was an agent of a foreign power. That does not apply to those only suspected.

From: Sealed Case "Sealed Case No. 02-001 " ..the court found that the government had shown probable cause to believe that the target is an agent of a foreign power.."

"the issue you raised in #37 regarding pre-FISA versus post-FISA court decisions is irrelevant, since the courts (both pre-FISA and post-FISA) based their holdings on a constitutional right of the President, and Congress is forbidden from infringing on a constitutional right."

You seem to completely ignore the constitutional right of the U.S. citizen to be free from unreasonable search and seizure, the President also is forbidden from infringing on a constitutional right, that is the reason for the warrants, and that is the reason that all the rulings you have pointed too were "agents of a foreign power" and not U.S. persons.

BTW, Congress can limit presidencial discression, even his discression on fighting war. That is not my opinion, that is Prize Cases ( THE AMY WARWICK, 67 U.S. 635 (1862) ) and that is exactly what FISA is, a congressional limitaion.

"Contrary to what you imply with your quote, Justice Douglas and Brennan's words are only a concurring opinion"

First I didn't say it was the court opinion, thats why I named the two justices.

Second, the A.G. in his defense of the eavesdropping felt Whites opinion was worth including, and I chose to include the other, so what, it is just a good summation of the topic at hand and that is how it was used.

Finally as for the quotes from #25, all but one were cases of agents of a foreign power, the one that was not (U.S. vs Brown), was pre-FISA.

And a good night (or morning as the case may be) to you too.

ndt:

In re: Sealed Case

because

probable cause

(emphasis in original)

No, that's incorrect, the court never said, nor implied any such thing. The court's conclusion was explicitly based solely on the President’s constitutional responsibility to conduct the foreign affairs of the United States.

But this claim of yours is a perfect example of the mental, logical and legal contortions you've been going through in a hopeless attempt to find some way to invent limits on the President's constitutional powers, powers which all the courts cited above have concluded belong inherently to the President.

First you invented out of whole cloth your own novel standard of evidence that an agent of a foreign power had to be "known" to be such before surveillance could be commenced. Never mind that neither the court nor the law ever articulated such a standard. And then to support your contention, you vainly attempted to place such words in the mouth of the court and the words of the law, when none existed.

When your illogic was pointed out to you that your "known" requirement far exceeded even the "probable cause" requirement for obtaining a conventional criminal search warrant, you dropped your "known" standard and began substituting the probable cause requirement, insisting that it was the "real" standard by which reasonableness should be determined.

But since virtually all courts to have ruled on the matter have held that the warrant requirement is inapplicable to the President's inherent authority, then so to is the probable cause requirement. What is left is simply a determination of whether the government's surveillance was "reasonable".

But what makes all your considerations moot and irrelevant, is that by the time any court becomes aware of such surveillance, it will only be because the case has ripened into a full-fledge intelligence or criminal case, that would not be before the court had there NOT been a reasonable cause to proceed in the first place.

This article....this question is predicated on an erroneous assumption:

WHAT IF WIRETAPPING WORKS?

What went on with regard to the monitoring of supposed Al Qaeda phone conversations was NOT WIRETAPPING.
If it was, then there would certainly have been laws broken if the Bush Administration had handled it in the same way.
But it was not wiretapping...it was the monitoring of wireless communications. Two totally different things.
It drives me mad when these Leftist commentators like Chris Matthews and Imus scream about "Bush wiretapping everybody".

It seems as if they go out of their way to educate the ignorant of this country...the Mr. and Mrs. Mundanes of the world...with totally wrong information.
Just to get as much of the electorate as possible to parrot their lies.

"No, that's incorrect, the court never said, nor implied any such thing. The court's conclusion was explicitly based solely on the President’s constitutional responsibility to conduct the foreign affairs of the United States."

Now please stop for a second and actually read the paragraph below, it is directly cut and pasted from Sealed Case at the link you provided above. If you don't believe me, click your own link and read the first paragraph of section one.

" The court’s decision from which the government appeals imposed certain requirements and limitations accompanying an order authorizing electronic surveillance of an “agent of a foreign power” as defined in FISA. There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA. The government’s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism. [approx. 1 page deleted]3 The FISA court authorized the surveillance, but imposed certain restrictions, which the government contends are neither mandated nor authorized by FISA. Particularly, the court ordered that"

You are hinging your entire argument on one sentence and ignoring the rest of the decision.

"When your illogic was pointed out to you that your "known" requirement far exceeded even the "probable cause" requirement for obtaining a conventional criminal search warrant"

That section of FISA has nothing to do with a warrant, it is the requirement for not having a warrant. You have failed to explain how the G.A. can certify under oath items AB and C are true. You have failed to do so because you can not do so and you know you can not, so you choose to ignore it just as you choose to ignore the passage above from the very court decision you are citing as your justification.

"But what makes all your considerations moot and irrelevant, is that by the time any court becomes aware of such surveillance, it will only be because the case has ripened into a full-fledge intelligence or criminal case, that would not be before the court had there NOT been a reasonable cause to proceed in the first place."

Are you now arguing that it does not matter if it is legal or not as long as it is kept secret?

ndt:

because

probable cause

ndt (quotes the court):

Show me where in that quote you provided that it states, as you claim, that the court "found that the President did have the power because he showed probable cause that the target was an agent of a foreign power".

ndt:

Obviously, because as I pointed out in #41, your reference to §1802 was an irrelevant digression from the topic under discussion, since that section specifically excludes U.S. persons from surveillance.

ndt:

I will simply note for the record, your attempt at mis-characterizing my position that the proper standard is one of reasonable suspicion.

" Obviously, because as I pointed out in #41, your reference to §1802 was an irrelevant digression from the topic under discussion, since that section specifically excludes U.S. persons from surveillance."

We both agree that the president has the authority to conduct eavesdropping without a warrant on "agents of a foreign power". Our main sticking point (in regards to FISA) is does he also have the power to conduct warrantless eavesdropping on U.S. Persons without knowledge that they are also acting as an agent of a foreign power.

According to 1802, no he does not, because a certification under oath is required that the target is in fact an agent of a foreign power, which was my point all along.

As far as FISA is concerned, the president does not have that power provided to him by statute to conduct warrantless eavesdropping on U.S. Persons that are not also agents of a foreign power.

"I will simply note for the record, your attempt at mis-characterizing my position that the proper standard is one of reasonable suspicion."

It was not a statement, it was a question, as indicated by the standard sentence structure of beginning with "Are you" and ending with a (?).

Your statment was as follows:

"But what makes all your considerations moot and irrelevant, is that by the time any court becomes aware of such surveillance, it will only be because the case has ripened into a full-fledge intelligence or criminal case, that would not be before the court had there NOT been a reasonable cause to proceed in the first place."

You clearly state that only cases that have "ripened into a full-fledge intelligence or criminal case" will be judged by "reasonable cause". This to me sounds like a justification for an administration to proceed with eavesdropping without reasonable cause, since evidence of wrong doing would never come to light.

If I am mistaken just say so, but you may want to clarify because I do not see how that statement has anything to do with saying "proper standard is one of reasonable suspicion".

Your reply neglected to show me where, in your quote of In re: Sealed Case that you posted, that it states, as you claim, that the court "found that the President did have the power because he showed probable cause that the target was an agent of a foreign power".

ndt:

Incorrect, we have no "sticking point in regards to FISA", because those specific requirements of FISA are trumped by the constitutional grant of authority to the President.

ndt:

Irrelevant digression, §1802 specifically excludes U.S. persons from surveillance, and is therefore not pertinent to the present discussion of surveillance of U.S. persons. I will not let you take me down this side path, it is not on topic.

ndt:

sounds like a justification

It is no such thing, it a simple statement of a logical truth, that when a case is reviewed after-the-fact, the initial investigation will always be viewed as reasonable simply because if wasn't reasonable, there would be no case for the court to review. Do not continue with this attempt to distort my position into a justification for illegal wiretaps.

"Your reply neglected to show me where, in your quote of In re: Sealed Case that you posted, that it states, as you claim, that the court "found that the President did have the power because he showed probable cause that the target was an agent of a foreign power".

Well maybe the conclusion was in the context of a duck. You know the president has the legal authority to conduct warrantless eavesdropping on a duck.

The fact that the government had shown the target to be an agent of a foreign power is only important if you think the stated facts of the case actually are used to determine the conclusions.

"Do not continue with this attempt to distort my position into a justification for illegal wiretaps."

Get off your high horse Boot. I did no such thing. It's all public record here.

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