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

UPI ^ | Dec. 27, 2005 | UPI

[Pragmatic_View]

WASHINGTON, Dec. 26 (UPI) -- U.S. President George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.

A review of Justice Department reports to Congress by Hearst newspapers shows the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.

The 11-judge court that authorizes FISA wiretaps modified only two search warrant orders out of the 13,102 applications approved over the first 22 years of the court's operation.

But since 2001, the judges have modified 179 of the 5,645 requests for surveillance by the Bush administration, the report said. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004. And, the judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection of a wiretap request in the court's history.

[ndt]

"If there is no way to know whether it was legal or illegal without knowing specifics aren't we to assume it was legal first? Wouldn't the other way be the presumption of guilt before innocents?"

Are you saying you have never heard of the need for a warrant?

[amutr22]

"The DOJ, in their defense of the spying, is putting forth arguments that would defend the spying on of U.S.Persons."

Ok, got it. I am really just trying to figure this out and am interested in both sides of the story. To be honest, I would probably still support Bush as I feel the intent was a good. But, I still want to know if my argument is a correct one.

So, thanks for your input.

Now, this has been a bit too much thinking for me....gotta go to bed. :-)

[ndt]

"I don't play tit-for-tat. All I asked for is a case law that shows the AG's office wrong and that the President "broke the law"."

You don't play tit nor tat. He cites like 30 cases, you are trying to force me into spending the rest of the night writing a rebuttal. All you need to do is point to one and you won't do it.

Let me guess, you haven't even read it have you. Yes, you might actually have to do your homework too.

Here, I'll start for you.

From the DOJ
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).

This one is interesting because presidents and national security were not addressed specifically in this case at all. The opinion above was the concurring opinion of a single judge. Notably left out here was the concurring opinion of another judge Justice Douglas who responds to mister Justice White with this.

" I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters."

[Wasanother]

Of course I've heard of a need for warrants but I asked for case law that shows the President "broke the law" by not getting warrants in this case.

[Wasanother]

If you're going to use case law for me try the '02 FISA courts ruling.

[ndt]

"If you're going to use case law for me try the '02 FISA courts ruling."

Was a supreme court justice not athoritative enough on a matter of law for you? LOL. Now you don't' just want case law, you want only case law from the one case you determine? Sorry, thats not how it works.

The DOJ thought this was an important case. So maybe you should read the rest of it.

"While I join the opinion of the Court, I feel compelled to reply to the separate concurring opinion of my Brother WHITE, which I view as a wholly unwarranted green light for the Executive Branch to resort to electronic eaves-dropping without a warrant in cases which the Executive Branch itself labels "national security" matters.

Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate [389 U.S. 347, 360] and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate.

There is, so far as I understand constitutional history, no distinction under the Fourth Amendment between types of crimes. Article III, 3, gives "treason" a very narrow definition and puts restrictions on its proof. But the Fourth Amendment draws no lines between various substantive offenses. The arrests in cases of "hot pursuit" and the arrests on visible or other evidence of probable cause cut across the board and are not peculiar to any kind of crime.

I would respect the present lines of distinction and not improvise because a particular crime seems particularly heinous. When the Framers took that step, as they did with treason, the worst crime of all, they made their purpose manifest. "

[FairOpinion]

Here is an excellent summary, that some people insist on ignoring:

This goes to the crux of the matter.

===

Unwarranted complaints

http://www.iht.com/articles/2005/12/27/opinion/edcasey.php

Shortly after the Sept. 11 attacks, President George W. Bush ordered surveillance of international telephone communications by suspected members of Al Qaeda overseas, even if such calls also involved individuals within the United States. This program was adopted by direct presidential order and was subject to review every 45 days. Judicial warrants for this surveillance were neither sought nor obtained, although key members of Congress were evidently informed. The program's existence has now become public, and howls of outrage have ensued. But in fact, the only thing outrageous about this policy is the outrage itself.

The U.S. president has the constitutional authority to acquire foreign intelligence without a warrant or any other type of judicial blessing. The courts have acknowledged this authority, and numerous administrations, both Republican and Democrat, have espoused the same view. The purpose here is not to detect crime, or to build criminal prosecutions - areas where the Fourth Amendment's warrant requirements are applicable - but to identify and prevent armed attacks on American interests at home and abroad. The attempt, by Democrats and Republicans alike, to dismantle the president's core constitutional power in wartime is wrongheaded and should be vigorously resisted by the administration.

Even if Congress had intended to restrict the president's ability to obtain intelligence in such circumstances, it could not have constitutionally done so. The Constitution designates the president as commander in chief, and Congress can no more direct his exercise of that authority than he can direct Congress in the execution of its constitutional duties. As the FISA court itself noted in 2002, the president has "inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

===

I think they express it very well. It was written by David B. Rivkin and Lee A. Casey. David B. Rivkin and Lee A. Casey are lawyers who served in the Justice Department in the Reagan and George H.W. Bush administrations.

[FairOpinion]

And one more thing that was posted early in this thread by Howlin and I am glad to have found it:


Appeals panel rejects secret court's limits on terrorist wiretaps

http://www.freerepublic.com/focus/f-news/1547700/posts?page=30#30

The United States has broad authority to use wiretaps and other surveillance techniques to hunt for suspected terrorists, a federal appeals court panel ruled Monday.

In a 56-page opinion overturning a May decision by the Foreign Intelligence Surveillance Court, the three-judge panel said the expanded wiretap guidelines sought by Attorney General John Ashcroft under the new USA Patriot Act law do not violate the Constitution. (More on the USA Patriot Act)

The ruling by the special panel from the U.S. Circuit Court of Appeals for the District of Columbia gives broad surveillance authority to counter-intelligence and counter-terrorism investigators to track individuals considered potential national security threats.

"Our case may well involve the most serious threat our country faces," the panel declared.

The reversal of May's decision by a federal judge represents a victory for the Justice Department and the FBI, which were harshly criticized by the lower court judge for its handling of wiretap applications, and their interpretation of the authority granted the government by the USA Patriot Act.

[SFConservative]

U.S. President George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.

and from the longer article:

The court's repeated intervention in Bush administration wiretap requests may explain why the president decided to bypass the court nearly four years ago to launch secret National Security Agency spying on hundreds and possibly thousands ...

Both statements are outright speculation on the part of the "reporters" and their sources, but are designed to leave the impression of a causal relationship between the rate of rejections and modifications and the decision to not go to the FISA court in some cases. The "may have" of the longer article has been modified into a certainty by the UPI "report".

It is just as, or maybe more likely (but also speculation on my part and that of many others), that in some cases the timing required was such that the critical need or opportunity would have been overtaken by events had the time been taken to get the court's approval.

Strange that the "reporters" while freely speculating away, do not speculate at all on alternate explanations that would make sense and that would not cast a negative light on the Administration. I wonder why ...

[ndt]

"It is just as, or maybe more likely (but also speculation on my part and that of many others), that in some cases the timing required was such that the critical need or opportunity would have been overtaken by events had the time been taken to get the court's approval."

You can get a FISA warrant retroactively. Meaning you can spy first, get warrant later. How would that slow you down?

[Wasanother]

The case makes no mention of war time Presidential Constitutional Obligations to protect the US from all enemies foreign and domestic. The case you quote is very interesting being that the AG made a phone booth case into a National Security issue which is a tad bit different than 19 hijackers slamming planes into the sides of buildings.

[ndt]

"The case you quote is very interesting being that the AG made a phone booth case into a National Security issue which is a tad bit different than 19 hijackers slamming planes into the sides of buildings."

Actually most of the citations that the DOJ makes are that way. Such is the nature of case law, you look for the snippets that best defend your point of view. In this case, there is not much that would be specific to 9/11 and a war without borders so he had to dig up what he could.

[Wasanother]

MR. JUSTICE HARLAN, concurring
"It will be time enough to consider any such exceptions when an appropriate occasion presents itself, and I agree with the Court that this is not one."

[ndt]

"The case you quote is very interesting"

Another interesting on to look up is Youngstown Sheet & Tube Co. The DOJ uses it to say that "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum". I say it is interesting the DOJ used it because in this case, the President LOST.

[ndt]

"MR. JUSTICE HARLAN, concurring ..."

Many of the citations the DOJ uses as justification, are not court decisions, but are consenting and dissenting opinions of the justices. These opinions are things that are taken into account by latter judges, but are not binding. Including the two citations we have mentioned so far.

[carton253]

I agree with you...

I haven't lost any rights...

I don't like knee jerk reactions that automatically bottomline to the worse case scenario. From legal wiretaps the next stop is Nazi Germany or Soviet Russia.

This country has allowed terrorists to operate freely... now, we are beginning to listen in on their conversation in order to stop them from carrying out their terrorist activities.

Good for the President!

[Wasanother]

I'm only interested with regards to Presidential Authorities when conducting a war. After almost every conflict there are constitutional challenges that occur and for the most part the lower courts have upheld the Presidential Constitutional Obligations on the conduct of the war and some have made there way to the SC with the SC abstaining from rulings but giving general opinions that they don't want to interfere with the Presidential Authorities. I will guarantee that this will be the same and the Federal District Courts will rule that the President has full authorities based on congressional resolution to allow the President to conduct the war basically as he sees fit.

[carton253]

guaran-damn-tee you that Hillary is orchestrating it.

Oh, stop with the Hilary already. She's not queen. She's not the Bogey man. She's not omnipresent nor omniscient.

She's the junior senator from New York.

Stop making her more than she is... you're scaring the children.

[ndt]

"I'm only interested with regards to Presidential Authorities when conducting a war."

Then do read Youngstown this was a case cited by the DOJ and deals directly with Presidential Powers vs. Constitutional Rights during war time.

[carton253]

Here comes the voice of reason to the thread...