Judge orders NSA spy papers released

CNN ^

[hipaatwo]

A federal judge dealt a setback to the Bush administration on its warrantless surveillance program, ordering the Justice Department on Thursday to release documents about the highly classified effort within 20 days or compile a list of what it is withholding.

U.S. District Judge Henry Kennedy said a private group will suffer irreparable harm if the documents it has been seeking since December are not processed promptly under the Freedom of Information Act.

The Justice Department failed to meet the time restraints under FOIA and failed to make a case that it was impractical to deal quickly with the request by the Electronic Privacy Information Center.

Justice Department spokesman Charles Miller said no determination has been made as to what the government's next step will be.

[Mad_Tom_Rackham]

Somebody with some stones in the executive branch needs to tell this judge to shove his subpoena where the sun don't shine.

[Mad_Tom_Rackham]

So how does the supposed "irreparable harm" to a "private group" outweigh the interest of the Federal Government in preserving national security? Methinks this commie judge smoked way too much wacky weed when he should have been studying Constitutional Law.

[hipaatwo]

National security? I just found out one of the ports Dubai is to run is where I live in Philly!

[Mad_Tom_Rackham]

its obvious who owns this judge.

A severe case of brain swallowed whole by anus.

[ohioWfan]

Can we send Judge Kennedy to Gitmo? I'd bet he'd fit right in there........

[Mad_Tom_Rackham]

...yea, like the Al Quida operatives and their abettors.

Today's Democrats are more concerned about second-hand smoke than they are about national security. For this, they MUST be held fully accountable in 2006 and 2008 and beyond.

Our overseas enemies = Al Queda

Our domsetic enemies = Al Squida

[mjaneangels@aolcom]

"In Epstein's view, the President's inherent powers as commander in chief of the armed forces permit him to authorize military action, but not surveillance of conversations involving domestic persons."

How is the President to know where to authorize military action if he does not equally have access to the intelligence that would point to the where? Does Epstein think that our country was attacked outside of our borders? We were attacked within our borders.

[ancient_geezer]

You can't win wars with scottish law.

Hmmm, Is that!! why Scotland is today part of the United Kingdom?

Inquiring minds want to know, LOL ;OP

[jz638]

Sounds perfectly fine to me. The government likely already has a list of what information it is withholding, so it has already complied with the judge's order.

of course by nature, the list itself would have a classification of some manner, so the judge and the plaintiffs won't be able to look at it, but that's another story.

[Mad_Tom_Rackham]

How can the FOIA apply to highly classified material?! Good question for Comrade Ginsberg.

[Mad_Tom_Rackham]

The AD hearing has well demonstrated that there are a lot of dots that a lot of people do not want to see connected. IMO, this NSA business is more cover for the real malfeasance.

[rdl6989]

This judge likes to play moot court.

[PhiKapMom]

I knew it was a Clinton judge without looking -- thanks for confirming.

This is why Conservatives don't vote for DemocRATs in elections -- just wish some on here would get a clue that judicial appointments are so critical that you cannot take a chance by putting a DemocRAT back in the WH. When they make their comments there is no difference in the parties, makes me think they are DemocRATs trying to convince conservatives there is no difference. There is a huge difference when it comes to judicial appointments.

[Boot Hill]

MarneyK:   "My highly conservative former law professor, Richard Epstein, said on Lou Dobbs this week that the President's NSA spying initiative is illegal."

With all due respect to your former law professor, in the NSA spying controversy, he doesn't know what he's talking about. First allow me to post his errors from your quotes, followed then by what the courts have concluded are the actual powers of the President, so you can compare the two and see for yourself.

Richard Epstein's error #1:   "ignoring the Act on the ground of 'inherent powers' is beyond any authority granted the Executive in the Constitution"

Richard Epstein error #2:   "the President's inherent powers as commander in chief of the armed forces permit him to authorize military action, but not surveillance of conversations involving domestic persons"

"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."

--United States v. Brown, 484 F.2d 418, 426 (1973)

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."

--U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)

"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."

--United States v. Duggan, 743 F.2d 59 (1984)

"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."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

Note several things about those decisions.

First, contrary to your law professor's opinion that the warrantless intercepts goes "beyond any authority granted the Executive in the Constitution", these decisions clearly demonstrate just the opposite. That virtually every court to have addressed this matter, both pre-FISA as well as post-FISA, have concluded that the President in deed has the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

Second, even the FISA court itself has concluded that the President has the inherent constitutional power to conduct warrantless searches to obtain foreign intelligence information.

Third, contrary to your law professor's opinion that the President's power emanates solely from his duties as Commander-in-Chief, these decisions explicitly shows that the President's authority also arises from his duties as this nation's sole representative in matters of foreign affairs, and that includes foreign intelligence gathering.

Fourth, contrary to your law professor seems to believe regarding FISA, Congress can NOT infringe on President's constitutional powers by any ordinary act of Congress. Absent a constitutional amendment, they have no authority to do so.

Fifth, contrary to your law professor's opinion, the present controversy does NOT involve "domestic" intelligence intercepts, as that term is specifically used by the courts, the law and the intelligence agencies, but rather "foreign" intelligence intercepts. Here's how to recognize the difference...

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 is the source of the threat, i.e., whether the threat to national security is origninating from outside this country and whether at least one party to the communication was acting as, or on behalf of, an agent of that 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.

Hope that you find that information useful. And sorry for having to be so hard on your former law professor.

[Cboldt]

Nice job of fluffing up "the line" between foreign intelligence and everything else. So, what is to be done with this foreign intelligence information? For example, what part of it is admissible?

[Boot Hill]

Cboldt:   "For example, what part of it is admissible?"

I've read enough of your posts to know that you know perfectly well what the answer to that is!

None of it can be used directly in a criminal prosecution. But it would be useable under 18 USC to obtain a warrant, once the decision had been made to end the intelligence gathering and begin a criminal prosecution.

[NapkinUser]

"people you are at war with have NO CONSTITUTIONAL RIGHTS"

Is this a joke?

[NapkinUser]

"As President Lincoln said... the court has ruled, now let them enforce it!"

Not the right quote and it was Andrew Jackson. Try to get it right.

[Boot Hill]

mykpfsu:   "FISA is not constitutional. When have courts EVER given Congress the right to conduct foreign intelligence operations? Never."

You're headed in the right direction, but you're getting there with flawed arguments.

You're right that Congress has no authority to conduct foreign intelligence operations, but it would be incorrect to assume that is the goal of FISA. FISA merely attempts to regulate the process of foreign intelligence gathering.

Congressional authority to enact a regulatory scheme like FISA comes from Article I, Section 8, clause 18 of the Constitution, which authorizes Congress to "make all laws...necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution". That includes making laws relating to powers belonging to the President.

But here is where Congress got their tit in wringer when they wrote FISA. Note that the "Necessary and Proper" clause only permits Congress to enact those laws that aid in the "carrying into execution" those powers granted by the Constitution. That means, they cannot use that clause to infringe, violate, or compromise a Constitutional grant of authority, only enable it. Therefore, any part of FISA that happened to infringe on a power belonging to the President would be outside Congressional authority to enact (under clause 18), and hence unconstitutional.

Since, virtually every court over the last 30 years, both pre-FISA and post-FISA, and notably including even the FISA court itself, that has ever addressed this matter has concluded that the President does have the inherent constitutional power to conduct warrantless surveillance to obtain foreign intelligence information, there can be no serious debate as to the present existence of that Presidential power.

Therefore, while Congress may theoretically have the authority to regulate the process of intelligence gathering, in doing so, it would have to take great care to do so only in furtherance of the President's powers and not to infringe or violate those powers. Any reading of the FISA statutes that would foreclose the President's preeminent constitutional authority in this matter, would also mean that FISA was unconstitutional.

[muir_redwoods]

"Judge orders NSA spy papers released"

Just say "no". the judiciary is in no constitutional way superior to the executive, particularly in the management of a war.

Sorry judge, there's a war on