Bush was denied wiretaps, bypassed them (FISA Court denied them in unprecedented numbers)

"There was no law against spying on people in the US until the law passed by Congress as a knee jerk reaction to the Nixon scandal."

Incorrect, it is covered by the fourth amendment. The was question at one time whether or not it applied, but that has been settled by a number of cases, the first that pops to mind is Katz v. United States.

"So why is it a big deal now, when in fact the only way we can find out and prevent terror attack, is by spying on terrorists inside the US."

My beef is that Bush had a secret court system and a retroactive warrant system in place already. By bypassing this already flexible system, he has opened himself to these attacks and threatened the success of the entire process.

As for the "spying on terrorists" the problem is only in regards to U.S. Persons (this is a specific thing). These people, unlike foreigners, are entitled to all the protections of the constitution, including the forth amendment and the presumption of innocence until proved guilty.

something is REALLY wrong at the CIA

That is what is most disturbing.

How about this?

http://www.freerepublic.com/focus/f-news/1546024/posts

The ink on FISA was barely dry when the first president to order extrajudicial surveillance -- a Democrat -- did so. Jimmy Carter exercised his authority on May 23, 1979 with Executive Order #12139, seven months after signing FISA into law, declaring that "the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order," subject to the section's requirements. The order cites a FISA section helpfully titled "Electronic Surveillance Authorization Without Court Order."

The precedent was even more firmly established by President Clinton. Top Clinton administration officials are on record defending the practice. As Deputy Attorney General Jamie S. Gorelick testified before Congress in 1994: "The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general." She remarked that: "It's important to understand that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

Please do post the link to the AG's letter, it was full of lots of specifics.

Let's see if our neysayers can refute those points.

not afraid to fire back

That is becoming a rare beast these days. So many RINO's running around. *shakes head in disgust*

So, 97% of the requests were approved as is, without modification. This is an "unprecedented" rate of rejection?

What part of the constitution do you not understand.

ARTICLE IV: The right of the people to be secure in their persons, houses, papers, and effects, against UNREASONABLE searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Therefore, if it is reasonable to intercept Al Quaeda communications, then no warrants are needed. End of story. Not to hard to read and understand something a friggin 8 year old could read and understand.

Even if a warrant was needed, do you not think there is probable cause to intercept the communications of Al Quaeda members and associates? Once probable cause is satisfied, all that is needed is an oath or affirmation and the name of the person. I'm preety sure that was provided to the FISA judges and therefore, there is no need to modify or reject the request.

"Show the enemy harm so he shall not advance" Sun Tzu The Art of War:

Great Sig line.

Today's liberals and some libertarians would like this to read:

"Show the enemy NO harm, so he SHALL advance".

Bush Rope-a-Dope

The Black Ice President

National security tops that, there is precedence of that during WW II.

"National security tops that, there is precedence of that during WW II."

And you are referring to what exactly?

The Congress is the only branch that can declare war and they have not. If you have a link to a congressional declaration of war, please do post it.

Here you go, big shot. How do you like your crow, well done?

Congress Passes Iraq Use of Force Resolution

Dateline: 10/11/02

The U.S. Congress yesterday passed a resolution authorizing President Bush to use the Armed Forces of the United States against Iraq.

The House of Representatives on Oct. 10 passed the resolution (H.J. Res. 114) by a vote of 296-133. Senate approval came in a late-night vote of 77-23.

Resolution Authorizes Use of Military Forces in Iraq Specifically, the resolution authorizes President Bush to:

use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.

I do stand corrected, it was from the AAG but here it is.

U. S. Department of Justice
Office of Legislative Affairs

December 22, 2005

The Honorable Pat Roberts
Chairman
Senate Select Committee on Intelligence
United States Senate
Washington, D.C. 20510

The Honorable John D. Rockefeller, IV
Vice Chairman
Senate Select Committee on Intelligence
United States Senate
Washington, D.C. 20510

The Honorable Peter Hoekstra
Chairman
Permanent Select Committee on Intelligence
U.S. House of Representatives
Washington, D.C. 20515

The Honorable Jane Harman
Ranking Minority Member
Permanent Select Committee on Intelligence
U.S. House of Representatives
Washington, D.C. 20515
Dear Chairmen Roberts and Hoekstra. Vice Chairman Rockefeller, and Ranking Member Harman:

As you know, in response to unauthorized disclosures in the media, the President has described certain activities of the National Security Agency ("NSA") that he has authorized since shortly after September 11, 2001 . As described by the President, the NSA intercepts certain international communications into and out of the United States of people linked to al Qaeda or an affiliated terrorist organization. The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. The President has made clear that he will use his constitutional and statutory authorities to protect the American people from further terrorist attacks, and the NSA activities the President described are part of that effort. Leaders of the Congress were briefed on these activities more than a dozen times.

The purpose of this letter is to provide an additional brief summary of the legal authority supporting the NSA activities described by the President.

As an initial matter, I emphasize a few points. The President stated that these activities are crucial to our national security." The President further explained that "the unauthorized disclosure of this effort damages our national security and puts our citizens at risk. Revealing classified information is illegal, alerts our enemies, and endangers our country." These critical national security activities remain classified. All United States laws and policies governing the protection and nondisclosure of national security information. including the information relating to the

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activities described by the President, remain in full force and effect. The unauthorized disclosure of classified information violates federal criminal law. The Government may provide further classified briefings to the Congress on these activities in an appropriate manner. Any such briefings will be conducted in a manner that will not endanger national security.

Under Article II of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1863) (stressing that if the Nation is invaded, "the President is not only authorized but hound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[T]he Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[T]he President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. § 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.").

This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority. . . ."). The Supreme Court has said that warrants are generally required in the context of purely domestic threats. but it expressly distinguished, foreign threats. See United States v. United States District Court, 407 U.S. 297, 308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "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, 363-64 (1967) (White, J., concurring).

The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. The AUMF authorizes the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks of September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States." § 2(a), The AUMF clearly contemplates action within the United States, See also id. pmbl. (the attacks of September 11 "render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad"). The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some

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have argued. Indeed, those who directly "committed" the attacks of September 11 resided in the United States for months before those attacks. The reality of the September I 1 plot demonstrates that the authorization of force covers activities both on foreign soil and in America.

In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court addressed the scope of the AUMF. At least five Justices concluded that the AUMF authorized the President to detain a U.S. citizen in the United States because "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war" and is therefore included in the "necessary and appropriate force" authorized by the Congress. Id. at 518-19 (plurality opinion of O'Connor, J.); see id. at 587 (Thomas, J., dissenting). These five Justices concluded that the AUMF "clearly and unmistakably authorize[s]" the "fundamental incident[s] of waging war." Id. at 518-19 (plurality opinion); see id. at 587 (Thomas, J., dissenting).

Communications intelligence targeted at the enemy is a fundamental incident of the use of military force. Indeed, throughout history, signals intelligence has formed a critical part of waging war. In the Civil War, each side tapped the telegraph lines of the other. In the World Wars, the United States intercepted telegrams into and out of the country. The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy. We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearly and unmistakably authorizes such activities directed against the communications of our enemy. Accordingly, the President's "authority is at its maximum." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring); see Dames & Moore v. Regan, 453 U.S. 654, 668 (1981); cf: Youngstown, 343 U.S. at 585 (noting the absence of a statute "from which [the asserted authority] c[ould] be fairly implied").

The President's authorization of targeted electronic surveillance by the NSA is also consistent with the Foreign Intelligence Surveillance Act ("FISA"). Section 2511(2)(f) of title 18 provides, relevant here, that the procedures of FISA and two chapters of title 18 "shall be the as exclusive means by which electronic surveillance... may be conducted." Section 109 of FISA, in turn, makes it unlawful to conduct electronic surveillance, "except as authorized by statute." 50 U.S.C. 1809(a)(1). Importantly, section 109's exception for electronic surveillance "authorized by statute" is broad, especially considered in the context of surrounding provisions. See 18 U.S.C. § 2511(1) ("Except as otherwise specifically provided in this chapter any person who --(a) intentionally intercepts . . . any wire, oral, or electronic communication[] . . . shall be punished . . . .") (emphasis added); id. § 2511(2)(e) (providing a defense to liability to individuals "conduct[ing] electronic surveillance, . . . as authorized by that Act [FISA]") (emphasis added).

By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA referred to in 18 U.S.C. § 2511(2)(f) where authorized by another statute, even if the other authorizing statute does not specifically amend section 2511(2)(f). The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance, just as a majority of the Court in Hamdi concluded that it satisfies the requirement in 18 U.S.C. § 4001(a) that no U.S. citizen be detained by the United States "except pursuant to an Act of Congress." See Hamdi, 542

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U.S. at 519 (explaining that "it is of no moment that the AUMF does not use specific language of detention"); see id. at 587 (Thomas, J., dissenting).

Some might suggest that FISA could be read to require that a subsequent statutory authorization must come in the form of an amendment to FISA itself. But under established principles of statutory construction, the AUMF and FISA must be construed in harmony to avoid any potential conflict between FISA and the President's Article II authority as Commander in Chief. See, e.g., Zadvydas v. Davis, 533 U.S. 678, 689 (2001); INS v. St. Cyr, 533 U.S. 289, 300 v. (2001). Accordingly. any ambiguity as to whether the AUMF is a statute that satisfies the requirements of FISA and allows electronic surveillance in the conflict with al Qaeda without complying with FISA procedures must be resolved in favor of a n interpretation that is consistent with the President's long-recognized authority.

The NSA activities described by the President are also consistent with the Fourth Amendment and the protection of civil liberties. The Fourth Amendment's "central requirement is one of reasonableness." Illinois v. McArthur, 531 U.S. 326, 330 (2001) (internal quotation marks omitted). For searches conducted in the course of ordinary criminal law enforcement, reasonableness generally requires securing a warrant. See Bd. of Educ, v. Earls, 536 U.S. 822, 828 (2002). Outside the ordinary criminal law enforcement context, however, the Supreme Court has, at times, dispensed with the warrant, instead adjudging the reasonableness of a search under the totality of the circumstances. See United States v. Knights, 534 U.S. 112, 118 (2001). In particular, the Supreme Court has long recognized that "special needs, beyond the normal need for law enforcement," can justify departure from the usual warrant requirement. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995); see also City of Indianapolis v. Edmond, 531 U.S. 32, 41-42 (2000) (striking down checkpoint where "primary purpose was to detect evidence of ordinary criminal wrongdoing").

Foreign intelligence collection, especially in the midst of an armed conflict in which the adversary has already launched catastrophic attacks within the United States, fits squarely within the "special needs" exception to the warrant requirement. Foreign intelligence collection undertaken to prevent further devastating attacks on our Nation serves the highest government purpose through means other than traditional law enforcement. See In re Sealed Case, 310 F.3d at 745; United States v. Duggan, 743 F.2d 59, 72 (2d Cir. 1984) (recognizing that the Fourth Amendment implications of foreign intelligence surveillance are far different from ordinary wiretapping, because they are not principally used for criminal prosecution).

Intercepting communications into and out of the United States of persons linked to al Qaeda in order to detect and prevent a catastrophic attack is clearly reasonable. Reasonableness is generally determined by "balancing the nature of the intrusion on the individual's privacy against the promotion of legitimate governmental interests." Earls, 536 U.S. at 829. There is undeniably an important and legitimate privacy interest at stake with respect to the activities described by the President. That must be balanced, however, against the Government's compelling interest in the security of the Nation. see, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) ("It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.") (citation and quotation marks omitted). The fact that the NSA activities are reviewed and

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reauthorized approximately every 45 days to ensure that they continue to be necessary and appropriate further demonstrates the reasonableness of these activities.

As explained above. the President determined that it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system. In addition, any legislative change, other than the AUMF, that the President might have sought specifically to create such an early warning system would have been public and would have tipped off our enemies concerning our intelligence limitations and capabilities. Nevertheless, I want to stress that the United States makes full use of FISA to address the terrorist threat, and FISA has proven to be a very important tool, especially in longer-term investigations. In addition, the United States is constantly assessing all available legal options, taking full advantage of any developments in the law.

We hope this information is helpful.

Sincerely,

William E. Moschella
Assistant Attorney General

When allowed, the different branches of the government have always done things We were unaware of. Hopefully, these action were taken in the best interest of our country. In time of war, I don't care what lengths they go to protect our livelihoods. ( Notice I said, "When Allowed")

For the likes of the Clintonistas, laws as for OTHER people to follow--not them!

Exactly. Each new law, rule, regulation only hamstrings Republicans. Democrats ignore them anyway and then only use them to beat up on Republicans.

You seem to be the legal eagle, so how come you don't know that. I don't recall the details, but during WW II some constitutional rights were suspended to be able to find and prosecute Nazi spies.

So, 97% of the requests were approved as is, without modification. This is an "unprecedented" rate of rejection?

What part of the constitution do you not understand.

I think you missed my point. I was suggesting that the data may end up showing that Bush was in fact doing the right thing.

"The ink on FISA was barely dry when the first president to order extra judicial surveillance -- a Democrat -- did so. Jimmy Carter exercised his authority on May 23, 1979 with Executive Order #12139"

EO 12139 is very specifically does not apply to U.S. Persons.

"The precedent was even more firmly established by President Clinton. Top Clinton administration officials are on record defending the practice."

I didn't like it then either :)

"Attorney General Jamie S. Gorelick testified before Congress in 1994...."

What the Attorney General argues does not automatically become law. He is after all an attorney, he argues one position.

Thanks for posting this.

OK, ndt, here is your chance to shine, go through the AAG's letter posted in post 252 and refute each point, if you can.

We always must remember that it's Bush today, Hillary tomorrow.

Do you for one moment think that The Hildabeast will obey the law? If she wanted it she would get it. ONTH Bush was IMO doing what any protector would do. That is why it is necessary for the people to be in the forefront of electing a person to CEO of America & not let a bunch of elitists do it for us.

"Here you go, big shot. How do you like your crow, well done?"

Sorry, that is not a formal declaration of war. The last time that was done was WWII. Note, I'm not so much criticizing the Executive on this point as I am Congress. It's just simpler for them to copout then to actually do their damn job.