Posted on 08/23/2006 4:40:59 AM PDT by Molly Pitcher
This is all totally wrong. The president has inherent constitutional authority to gather foreign intelligence without a warrant. Every court until this one, including many appellate courts, has recognized this principle.
Moreover, the Patriot Act amended FISA in 1982 to allow the government to use this information in subsequent criminal investigations as long as intelligence-gathering was a "significant purpose" in gathering it. Under prior law, you needed a traditional warrant unless intelligence-gathering was a "primary purpose."
This prior law had led to Jamie Garolick's infamous wall between the law enforcement and intelligence agencies. This wall, in turn, was a major contributing factor to the government not detecting the 9/11 plot in time. This is why Congress, through the Patriot Act, changed this law.
The Constitution is not a suicide pact. The Constituion prohibits only unreasonable warrantless taps, not all of them. Not every warrantless search and seizure is unreasonable. And the NSA program is further authroized under the President's Article II powers as Commander in Chief.
For more information, read this. It is the FISA court's 1992 opinion. In it, it reaffirms the President's power to gather foreign intelligence without a warrant:
http://www.fas.org/irp/agency/doj/fisa/fisc051702.html.
You're nuts. Oh -- and wrong on every count too.
Exactly. And every court (until this one) that upheld the President's inherent constitutional powers to use even warrantless foreign surveillance when the purposes is to gather such information. The Fourth Amendment doesn't become relevant until the government then attempts to use this information in a subsequent criminal investigation.
Sure it does. The U.S. Constitution is what soldiers swear to uphold and defend during their enlistment oath. Or do you think that U.S. soldiers are subject only to the laws of the country they're currently in? (If so, I'm going back for my four wives.)
There is such a thing as Congressional oversight. Also, in caes where an individual can prove actual harmed from abuse of the program, he would have standing to sue. That's the problem here. These plaintiffs cannot point to any actual harm, but only fear or speculation that they might be harmed. Any harm is, at best, potential but not demonstrably actual. In legal terms, they lack standing (which the constitution requires before an Article III judge can rule on it). The court lacked constitutional power even to hear the case and should have thrown it out for that reason alone.
Oops. That should be October 2001.
This is exactly right. Whether there was a warrant is merely one of several factors going into whether the search was reasonable. Until this case, courts never required the government to get a warrant when the purpose was solely to gather foreign intelligence (which, incidentally, is part of the President's inherent constitutional powers under Article II).
Thank you. I'm pretty good with the HMTL tags here except for posting links. :)
So, if the ACLU was able to prove that they were unfairly targeted under this program, would they be able to sue the members of the House Select Committe on Intelligence, for example, for failing to provide oversight? For example, could they take Nancy Pelosi to court for her role, or negligence, in the case?
The short answer to your questions is no. Unfortunately. :) Congress can demand briefings about the program, withhold funding for the program if the information is not forthcoming, enact laws to curb even potential abuses, and several other things.
That one is the wrong opinion. I linked to the appellate opinion that reversed this opinion. If nothing else, try cutting and pasting what I linked.
That one is the wrong opinion. I linked to the appellate opinion that reversed this opinion. If nothing else, try cutting and pasting what I linked.
Wait, I made that mistake, not you. Here is the correct link:
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html
This is to the appellate opinion that reversed the opinion that I had mistakenly linked the first time. Sorry about that. :)
See my #39. Coffee is not kicking in properly this morning. :)
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