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1996 Redux on Wiretaps: Is Anybody Listening? | 17 comments (17 topical)

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Nope (1.00 / 1) (#8)
by jimakaPPJ on Wed Aug 08, 2007 at 10:05:07 AM EST
There comes a time when giving in to the demolition of constitutional protections can no longer be considered a matter of being weak or unthinking. Rather it must be considered complicity.

FISA has been around since 1978, and the President's right to use warrantless tapping has been approved by four appeals courts. There is little new here.

If a judge objects, the wiretapping can at least continue, pending appeal all the way to the Supreme Court.

This is the kind of review that judges are neither allowed to perform under the Constitution, nor equipped to provide as a matter of policy. Whatever the merits of the 1978 FISA law, no Administration has ever conceded that that law trumped a President's power to make exceptions to FISA if national security requires it. To do so would be a direct infringement on the President's Article II powers as Commander in Chief to protect the nation against its enemies.

The courts have been explicit about this, with the FISA appellate court asserting in a 2002 opinion (In Re: Sealed Case) that "we take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power." FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed.
RE: (5.00 / 1) (#10)
by mack on Wed Aug 08, 2007 at 11:16:08 AM EST
FISA has been around since 1978, and the President's right to use warrantless tapping has been approved by four appeals courts. There is little new here.

You are either ignorant or disingenuous in regards to this comment; I'll say ignorant since I don't think you know any better.

The President's right to use 'warrantless tapping', when a domestic component to the wiretap is present, remains judicially unsettled.

From Findlaw:


Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required. 152 Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government's duty to preserve the national security did not override the guarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy. 153 This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth. 154 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required. 155  



[ Parent ]
Forgot Something.... (5.00 / 0) (#12)
by mack on Wed Aug 08, 2007 at 11:22:06 AM EST
I almost forgot to include the best part from the Findlaw link:


Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ''United States person'' will be overheard. 157


[ Parent ]
Did you mean"settled"? (none / 0) (#13)
by Jon Erik Kingstad on Wed Aug 08, 2007 at 02:25:44 PM EST
I think you mean to say the president's right to use warrantless surveillance when a domestic compoent is involved is judicially settled. By which I think you mean the "Keith" case in 1971. What is unsettled is whether a judicially approved warrant is constitutionaly required for the president to conduct warrantless searches to obtain foreign intelligence information. The 2002 decision did state that "we take it for granted" but also noted that a plurality opinion of the DC Court of Appeals in Zweibon v. Mitchell suggested to the contrary.

The problem, as you mention, is really who is to decide what is interception of "foreign intelligence information" and who is to decide when the purpose is not gathering of foreign intelligence and blackmailing your political enemies. That is why I think it is fair to say that the primary purpose of FISA is to prevent any surveillance of "US persons" and to protect First Amendment rights unless there is reasonable cause to believe they are acting as a foreign agent or for a foreign power.

[ Parent ]

You can argue with John Schmidt (1.00 / 1) (#14)
by jimakaPPJ on Wed Aug 08, 2007 at 04:21:37 PM EST
associate attorney general of the United States in the Clinton administration, superbly explains why the NSA intercept program is legal under all authorities and precedents:

"President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.
In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant."

Schmidt quotes the same language from the 2002 decision of the Foreign Intelligence Surveillance Court of Review that we have cited repeatedly:

"the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority."

The underlying link is to the Chicago Tribune. If you want to pay for it you can read the complete article.

Now I don't have Schmidt's phone number or email address, but I am sure you can find it if you desire. I am sure he is anxious to hear from you...

Perhaps you were in the DOJ with him?? Law school?
College?? High school??

Have a nice day. I am LOL.

[ Parent ]

Ha, ha (5.00 / 1) (#15)
by Sailor on Wed Aug 08, 2007 at 05:08:23 PM EST
yet another link to powerlie ... how much do they pay you to shill for them?

[ Parent ]
Sailor loves Strawmen (1.00 / 1) (#16)
by jimakaPPJ on Thu Aug 09, 2007 at 09:33:49 AM EST
Just in case someone missed it, the underlying link, as clearly shown in the Powerline article, is to the  Chicago Tribune.

Are you calling the Tribune "powerlie?"

Why don't you go to the source, pay for pulling the article out of the Trib's archives and prove PowerLine and me wrong?

But you won't because you know you can not.

[ Parent ]

it's dishonest to link to powerlie (none / 0) (#17)
by Sailor on Thu Aug 09, 2007 at 11:38:26 AM EST
link to the trib if you have a point, not to a wrongwing blog.

[ Parent ]
Re: ignorant or disingenuous (none / 0) (#11)
by Edger on Wed Aug 08, 2007 at 11:20:45 AM EST
He's both I think, mack.

I don't believe he is as dumb as he pretends to be.

[ Parent ]

1996 Redux on Wiretaps: Is Anybody Listening? | 17 comments (17 topical)

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