Posted on 02/13/2006 4:55:15 AM PST by seanmerc
Congress does have the power to declare war, so under the Constitution they do have a say about how the military is used.
Long-standing court interpretations that the executive has the right to conduct intelligence gathering.
2. Nowhere in these long-standing interpretations did they hold that Congress does not have the power to regulate this power.
Incorrect, the President's power over foreign intelligence comes not only from the requirements of the office of Commader-in-Chief, but also as this nations sole representative in matters of foreign affairs.
"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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inquest: "Nowhere in these long-standing interpretations did they hold that Congress does not have the power to regulate this power."
Regulate? Yes. Infringe? Absolutely not, and the courts have said so.
"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. 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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Somehow this gets transmogrified into the notion that the Prez can only wiretap foreigners.
I see that occassionaly here on FR, and when I do, I post this...
The difference between "domestic" and "foreign" national security intelligence intercepts has nothing to do with the point of origin, destination or interception of the communication. Nor does it depend on whether either party is a U.S. citizen or resident. The difference between "foreign" and "domestic" national security intercepts, as the term is used by the courts, the law, and intelligence agencies, is the source of the threat, i.e., whether at least one party to the communication was acting as, or on the behave of, an agent of a foreign power.
That distinction was never made more clear than it was in the Truong case. Truong, a U.S. resident alien, and Humphrey, a U.S. citizen and an employee of the USIA, conspired to commit espionage by delivering confidential government documents to the communist government of Vietnam from 1976 to 1977. In this case, the court held that the intercepts did not require a warrant since both defendants were acting as agents of a foreign power and thus the intercepts were a legitimate exercise of foreign national security intelligence gathering.
Note that in Truong, both the origin and destination of the intercepted calls were within the United States. Note also, that both defendants were U.S. residents, and in Humphrey's case, a U.S. citizen, as well. Yet the court held that these were foreign national security intercepts.
Regulate? Yes. Infringe? Absolutely not, and the courts have said so.
1. A regulation is an infringement. That's what it does.
2. I said there were no holdings restricting Congress this way, and there are indeed none. What you posted was dictum, not holding. This has been explained to you before. What is it about that that you're not getting?
Carter signed FISA - however, the "inherent authority" was not his to give away, since it is a constitutional power of the executive - just as SCOTUS did not allow Congress to give the President a line-item veto without amending the Constitution.
In a way, this is a good debate - it is educating people about the nature of the relationship of powers between the various branches of government. And it is showing how the Dems politicize everything.
HOWEVER, the middle of wartime is NOT the time to be having such a debate!!!!
Well, given that this is a "war" with no end in sight except when the administration says it's over, this debate isn't going to be put off forever, so we might as well get it out of the way now.
However, I didn't restrict my reply to merely holdings. What is it about that that you're not getting?
You can talk about Pluto's moon if you want, but if you think you're contradicting anything I said, or even putting it into any kind of relevant context, you're wrong. No court has ever held that Congress's doesn't have the power to "infringe" the President's conduct of military ops or foreign policy. That's what's relevant here.
Actually, and despite your sincere assurances to the contrary, that's mostly irrelevant here.
FISA or no FISA, the President may continue to conduct his warrantless foreign intelligence gathering in full confidence of its legality and constitutionality, since he is armed with the decisions of virtually every court that has ever addressed this issue, who have concluded that the President had the inherent constitutional 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.
Every other argument is just window-dressing.
Both statements can't be right. In this case, both are wrong.
Oh, but they ARE both true, because in the present case, you admit you have no decision to back your position, yet the President DOES have the decisions of virtually every court to have ever addressed the matter of the constitutionality of his warrantless intercepts.
Game, set, match, give it up!
He doesn't have their decisions to back up the view that Congress can't restrict him. None of them hold that.
Nor does he need such a decision, that's just your lame straw man argument. The President has all that he needs in the decisions of virtually every court to have ever addressed the matter and that state that the President's warrantless intercepts are constitutional.
Constitutional is not synonymous with uninfringible. When you can find court decisions that say that it is, then you'd have somewhere to go with this.
If FISA had in fact infringed upon the exercise of the President's constitutional powers, then the FISA court in In re: Sealed Case would have noted that infringement when they concluded...
"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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Not only did the FISA court find NO such infringement, they also concluded...
"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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You have to admit, it is kind of ironic that the Rats have been relegated to turning coffins into soap boxes of intellectual dishonesty and outright Bovine Excrement.
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