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.
Oops. That should be October 2001.
Wrong link. See my #39. Sorry about that.
So basically, you're saying FISA is unconstitutional, right? Well, since FISA I could find only a few cases involving its constitutionality - most said FISA was ok, and one said as dicta that they took 'for granted' the position the Prsident can order warrantless eavesdropping for collecting foreign intel. The other cases upheld FISA's constitutionality. Hardly much of a base to build on for ignoring federal law, isn't it? I guess maybe we'll see if he really does, if this makes the USSC and is decided on the merits, instead of the standing issue, as I suspect it will be. So what we need here is the courts to decide if FISA is an unconstitutional intrusion into the powers of the President. That's how it's supposed to work, right?
The problem then is that if FISA is indeed constitutional, the President has ordered the commission of, and various people have carried out, multiple felonies under federal law, punishable by serious time in Club Fed. Certainly that is an issue that needs to be clarified, no? I mean, lying about oral sex is enough to get you impeached, God knows what you get for ordering dozens of illegal wiretaps, eh?
Moreover, the Patriot Act amended FISA in 1982...
1982 eh? Wow!
...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."
Great, as long as they follow FISA, they're covered in sharing information. Oops, they're not following FISA, though. The issue isn't the sharing of information, it's the warrantless eavesdropping on "US persons" in the first place.
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.
Yes, I know that's what the Executive Branch thinks - it's even possible they're right (cough, cough, Youngstown Sheet and Tube, cough). Recent comments from Congress from both sides of the aisle seem to disagree with his views on the matter. Further, Congress has specifically *banned* warrantless eavesdropping unless there is no 'substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party'. (FISA, aka 50 USC 1802a 1(B)) There are of course, exemptions, but they don't apply to the plaintiffs in the current case, who pretty clearly are "US Persons" under FISA.
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
I went and read the decision you link to above, and, oddly, the word 'warrantless' isn't anywhere to be found in it. Perhaps you meant to post a decision that actually discusses "the President's power to gather foreign intelligence without a warrant"? Could you provide a link to *that* case please? The one you posted doesn't cover that subject at all, it seems to be about minimization processes as mandated in the section of FISA covering eavesdropping WITH a warrant (50 USC 1804). And we're talking about warrantLESS eavesdropping here, right? So I'm not exaaAAAactly sure why you provided the link you did.
HTH. HAND.
--R.