Constitution Cannot be Amended by Arrogant Public Officials

[Trajan Octavian Titus]

<<<CONTINUED FROM ABOVE>>>

Even if some might think that’s not the only way to read the statute, in accordance with long recognized canons of construction, FISA must be interpreted in harmony with the Force Resolution to allow the President, as Commander in Chief during time of armed conflict, to take the actions necessary to protect the country from another catastrophic attack. So long as such an interpretation is “fairly possible,” the Supreme Court has made clear that it must be adopted, in order to avoid the serious constitutional issues that would otherwise be raised.

Third, I keep hearing, “Why not FISA?” “Why didn’t the President get orders from the FISA court approving these NSA intercepts of al Qaeda communications?”

We have to remember that we’re talking about a wartime foreign intelligence program. It is an “early warning system” with only one purpose: To detect and prevent the next attack on the United States from foreign agents hiding in our midst. It is imperative for national security that we can detect RELIABLY, IMMEDIATELY, and WITHOUT DELAY whenever communications associated with al Qaeda enter or leave the United States. That may be the only way to alert us to the presence of an al Qaeda agent in our country and to the existence of an unfolding plot.

Consistent with the wartime intelligence nature of this program, the optimal way to achieve the necessary speed and agility is to leave the decisions about particular intercepts to the judgment of professional intelligence officers, based on the best available intelligence information. They can make that call quickly. If, however, those same intelligence officers had to navigate through the FISA process for each of these intercepts, that would necessarily introduce a significant factor of DELAY, and there would be critical holes in our early warning system.

Some have pointed to the provision in FISA that allows for so-called “emergency authorizations” of surveillance for 72 hours without a court order. There’s a serious misconception about these emergency authorizations. People should know that we do not approve emergency authorizations without knowing that we will receive court approval within 72 hours. FISA requires the Attorney General to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time.

Thus, to initiate surveillance under a FISA emergency authorization, it is not enough to rely on the best judgment of our intelligence officers alone. Those intelligence officers would have to get the sign-off of lawyers at the NSA that all provisions of FISA have been satisfied, then lawyers in the Department of Justice would have to be similarly satisfied, and finally as Attorney General, I would have to be satisfied that the search meets the requirements of FISA. And we would have to be prepared to follow up with a full FISA application within the 72 hours.

A typical FISA application involves a substantial process in its own right: The work of several lawyers; the preparation of a legal brief and supporting declarations; the approval of a Cabinet-level officer; a certification from the National Security Adviser, the Director of the FBI, or another designated Senate-confirmed officer; and, finally, of course, the approval of an Article III judge.

We all agree that there should be appropriate checks and balances on our branches of government. The FISA process makes perfect sense in almost all cases of foreign intelligence monitoring in the United States. Although technology has changed dramatically since FISA was enacted, FISA remains a vital tool in the War on Terror, and one that we are using to its fullest and will continue to use against al Qaeda and other foreign threats. But as the President has explained, the terrorist surveillance program operated by the NSA requires the maximum in speed and agility, since even a very short delay may make the difference between success and failure in preventing the next attack. And we cannot afford to fail.

***

Finally, let me explain why the NSA’s terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures.

The Fourth Amendment has never been understood to require warrants in all circumstances. For instance, before you get on an airplane, or enter most government buildings, you and your belongings may be searched without a warrant. There are also searches at the border or when you’ve been pulled over at a checkpoint designed to identify folks driving while under the influence. Those searches do not violate the Fourth Amendment because they involve “special needs” beyond routine law enforcement. The Supreme Court has repeatedly held that these circumstances make such a search reasonable even without a warrant.

The terrorist surveillance program is subject to the checks of the Fourth Amendment, and it clearly fits within this “special needs” category. This is by no means a novel conclusion. The Justice Department during the Clinton Administration testified in 1994 that the President has inherent authority under the Constitution to conduct foreign intelligence searches of the private homes of U.S. citizens in the United States without a warrant, and that such warrantless searches are permissible under the Fourth Amendment.

The key question, then, under the Fourth Amendment is not whether there was a warrant, but whether the search was reasonable. This requires balancing privacy with the government’s interests – and ensuring that we maintain appropriate safeguards. We’ve done that here.

No one takes lightly the concerns that have been raised about the interception of communications inside the United States. But this terrorist surveillance program involves intercepting the international communications of persons reasonably believed to be members or agents of al Qaeda or affiliated terrorist organizations. This surveillance is narrowly focused and fully consistent with the traditional forms of enemy surveillance found to be necessary in all previous armed conflicts. The authorities are reviewed approximately every 45 days to ensure that the al Qaeda threat to the national security of this nation continues to exist. Moreover, the standard applied − “reasonable basis to believe” − is essentially the same as the traditional Fourth Amendment probable cause standard. As the Supreme Court has stated, “The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.”

If we conduct this reasonable surveillance – while taking special care to preserve civil liberties as we have – we can all continue to enjoy our rights and freedoms for generations to come.

***

I close with a reminder that just last week, al Jazeera aired an audio tape in which Osama bin Laden promised a new round of attacks on the United States. Bin Laden said the proof of his promise is, and I quote, “the explosions you have seen in the capitals of European nations.” He continued, quote, “The delay in similar operations happening in America has not been because of failure to break through your security measures. The operations are under preparation and you will see them in your homes the minute they are through with preparations.” Close quote.

We’ve seen and heard these types of warnings before. And we’ve seen what the result of those preparations can be – thousands of our fellow citizens who perished in the attacks of 9/11.

This Administration has chosen to act now to prevent the next attack, rather than wait until it is too late. This Administration has chosen to utilize every necessary and lawful tool at its disposal. It is hard to imagine a President who wouldn’t elect to use these tools in defense of the American people – in fact, I think it would be irresponsible to do otherwise.

The terrorist surveillance program is both necessary and lawful. Accordingly, the President has done with this lawful authority the only responsible thing: use it. He has exercised, and will continue to exercise, his authority to protect Americans and the cherished freedoms of the American people.

Thank you. May God continue to bless the United States of America.

http://www.usdoj.gov/

 

[libertarian_knight]

And when has it been shown that the taps were on people residing in the U.S. I'm under the impression that the taps were placed on the people outside of the U.S. and that they called people in the U.S. and it is not the people inside the U.S. whose phones are being tapped.

Now I've got a head ache thank you people I so do love these conversations of ours.

That may be, the adminstration may also not be wholly forthcoming about involvement of US Persons. Unfortunately, I, like a great many others, no longer trust this president. It may be that current law is sufficient. it may be, Despite FISA and UAMF, that other law or ruling already has standing. It may be that it's congress' wish to further restrict presidential power in this matter, and they may make new law.

Hope your head feels better

 

[Trajan Octavian Titus]

That may be, the adminstration may also not be wholly forthcoming about involvement of US Persons. Unfortunately, I, like a great many others, no longer trust this president. It may be that current law is sufficient. it may be, Despite FISA and UAMF, that other law or ruling already has standing. It may be that it's congress' wish to further restrict presidential power in this matter, and they may make new law.

Hope your head feels better

This is why I welcome the Congressional hearings which I feel will only vindicate what the President, the NSA, and the DOJ, have been saying all along, I just hope that the proceedings are closed and only the findings are revealed to the public so as not to hurt the war effort any further.

 

[oldreliable67]

FISA says "Notwithstanding any other law" several times. That means DESPITE ANYTHING IN AUMF, FISA applies.

The governing language though is, “engag[ing] . . . in electronic surveillance under color of law except as authorized by statute.” In this case, the AUMF is that authorizing statute.

Furthermore, referring to the Presidents' Article II powers, the FISA courts itself, in a 2002 ruling, stated:

“[w]e take for granted that the President does have that [inherent] authority” and, “assuming that is so, FISA could not encroach on the President’s constitutional power.”

The Supreme Court has ruled. The FISA court has ruled.

 

[Calm2Chaos]

Becuase, though presidents have long enjoyed the use of National Security concerns, things came to a head after a long series of abuses of power with Nixon, so Congress decided to excercise their explicit consitutional authority to make rules and regulations of the armed Services, and to make laws for the government.

See this authority of the President's has been abused, certainly abused, for political and economic interests. What Congress did, using it's legal and consitutional authority, was narrow the scope to which there is legal use of communications intercepts, and it explicitly restricted communication intercepts in manners when US persons are involved, in order to prevent Political and Economic espionage. However, they did allow for a very reasonable degree of latitude and incorporate mechanisms to allow the attorney General to authorize wiretaps before a warrant could be procured, in the even of an emergency.

This is not a "new issue" for the American Public nor the Government. This is a continuation of decades worth of history that has shown abuse of power for political and economic interests, with no impact on national security.

President's have lied in the past about how they were using and needed this power. That's why this President can not be trusted with it, and has had it restricted since 1978.

Yet it was used by clinton and others since 78. But again I ask.. If your fihting these unconventional murders. You need to have access to the communications. If this process is used for on going spying against innocent US citizens then I have the concern. BUt it has not been proven that this has occurred. This process gives our intelligence the abillity to catch incidents before they occur. How many US civilian lives are worth restricting this information?

 

[Jim]

They did the same thing regarding the Buildup to the Iraq War. They use past behaviors, without qualifying a time period, when talking about current or recent events. When explaing the who, what, when, where, why and how of a thing, they conviently make "when" mean any time in the past, omitting other past events that have changed the who, what, where, why or how apsects to an event.

it's sheer dishonestly, plain and simple.

What is the source of such evil? Could Bush be possessed by a demon?

 

[Jim]

Yes! Finally a thread that discusses the actual argument being used by the administration. I'll look through this later and respond but am I right in that the anti-Bush crowd is distinguishing Hamdi as follows:

1. It applies to uses of force and wiretapping is not an act of "force;"
2. The specific statute of FISA trumps the general implied authority of the authorization of force; and,
3. Hamdi by it's own terms limits its application to the unique facts of the case.

Am I missing any other substantive arguements after we toss out all of the fluff?

 

[libertarian_knight]

What is the source of such evil? Could Bush be possessed by a demon?

no demon, just satan's ejaculate fertilizing chimpanzee poo.

 

[Jim]

no demon, just satan's ejaculate fertilizing chimpanzee poo.

I really do hope that our culture outgrows this deep need to demonize people with whom we disagree. I have to laugh, albeit sadly, when I see "liberals" try to understand the Muslim world but jump to fantastic conclusions about Bush without any attempt at understanding.

This topic is an excellent example. I'm a lawyer and have had cases involving Constitutional law (one of which involved an equal protection issue in which we argued successfully against the ACLU) yet I wouldn't dare offer a definitive conclusion without spending about a month researching the caselaw. Even with much more research, I do not think anyone could offer an iron clad opinion. Yet, people were on various boards offering instant opinions without having even read Hamdi v. Rumsfeld. This speaks of a need to villify Bush, not any understanding of the law.

From what I have read so far, the Bush administration has a good faith legal argument. OTOH, it's entirely possible that the SC would side step this clash between the executive and legislative branches as a political matter. If the SC did take on the issue, I cannot say how they would rule as I think both sides, from my limited understanding of this area of the law, have reasonable arguments.

 

[oldreliable67]

Jim,

There are multiple threads on the wiretapping kerfuffle, almost all of them having some discussion about Hamdi and its relevance (or lack thereof). One of the more recent threads in this forum is...

http://debatepolitics.com/showthread.php?t=7961