Presidential Legal Lawbreaking - The Nixon Theory

[oldreliable67]

It is not open to debate.

Of course it is open to debate. What is one of the primary missions of the Supreme Court of the United? Since you obviously missed that part of school, I'll tell you: it is interpreting the Constitution of the United States, especially as it relates to laws passed by Congress. For example, from the AG's letter:

"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)."

And,

"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."

Rely on talking heads? Ridiculous on the face of it. Legal scholars? Not rely, but certainly take their opinions into consideration. They are, after all, scholars.

In those quotes, above, you find references to debate over the laws of the land. Further, if you think really, really hard, you might remember one or two times that the SC has held this law or that law to be unconstitutional, thus forcing its modification or repeal. It remains to be seen whether or not that will happen in this case.

 

[danarhea]

Of course it is open to debate. What is one of the primary missions of the Supreme Court of the United? Since you obviously missed that part of school, I'll tell you: it is interpreting the Constitution of the United States, especially as it relates to laws passed by Congress. For example, from the AG's letter:

"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)."

And,

"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."

Rely on talking heads? Ridiculous on the face of it. Legal scholars? Not rely, but certainly take their opinions into consideration. They are, after all, scholars.

In those quotes, above, you find references to debate over the laws of the land. Further, if you think really, really hard, you might remember one or two times that the SC has held this law or that law to be unconstitutional, thus forcing its modification or repeal. It remains to be seen whether or not that will happen in this case.

2 points:

1) It is up to the courts to determine the threat, not the executive branch alone.

2) In extraordinary circumstances, the usual warrant requirement does not apply. In that, you are correct, but in your desire to justify Bush's wrongdoing, you are taking that decision out of context. The warrant must still be applied for retroactively, and the FISA procedure takes that into account. Bush bypassed that procedure in his lawlessness.

Again, we have a president who takes the position that he is above the law.

 

[Stinger]

I find the juxtaposition of a former Repub President's right-hand lawyer guy (Dean) to be now criticizing a Repub and a former asst AG under a Dem (Clinton, of all people) who is now supporting Bush's legal position in this matter, to be quite ironic.

Desperate? In what way?

Dean has been a harsh critic of Republicans for YEARS. The court cases are quite clear as I have posted and as I note you have posted.

 

[Stinger]

What part of this dont you understand?


Source is Title 50, Chapter 36, Subchapter 1, Paragraph 1809 of the FISA law. You can read the entire law here.

What part of the constitution and the court case already cited don't you understand. FISA, or any other pure legislation cannot usurp the Presidents constitutional authority in this matter.

But I would pose this to you, the courts and the congress and the IG's were all kept apprised of this so why didn't anyone bring up charges?

 

[aps]

What part of the constitution and the court case already cited don't you understand. FISA, or any other pure legislation cannot usurp the Presidents constitutional authority in this matter.

But I would pose this to you, the courts and the congress and the IG's were all kept apprised of this so why didn't anyone bring up charges?

Stinger, I am not saying that the president has committed a crime, although my belief is that what he has done is not within his power under either the Constitution or based upon the wording used to allow him to use the force necessary. Would you answer this for me? In talking about the Patriot Act on April 20, 2004, the president specifically noted that in conducting wiretapping, he would be obtaining a court order. See http://www.whitehouse.gov/news/releases/2004/04/20040420-2.html

If the Patriot Act was passed to allow the president to use powers in connection with our invasion of Afghanistan, why would the president point out the requirement of needing a court order to conduct the wiretapping? Why would the Patriot Act limit the president's supposed Constitutional rights? Does that make sense to you? It sure doesn't make sense to me.

 

[oldreliable67]

It is up to the courts to determine the threat, not the executive branch alone.

No, it is not the function of the courts to determine threats. It is the function of the coursts to interpret and administer the law. Nothing more, nothing less.

Again, we have a president who takes the position that he is above the law.

Baloney. It is probably true that Bush, as have many, many presidents before him, especially in wartime, pushed the power of the executive branch to its limits.

To reiterate, it is my hope that the NSA surveillance program question does make it to the SC. This is new ground: stateless terrorism and advanced technology versus laws originating in the world of 1978. Ultimately, if Bush's actions do find their way to the SC, it may be determined that he did something that pushed beyond the limits of the executive branch. Or maybe not. Thats what courts are for. But take a position that he is above the law? Not hardly.

 

[Stinger]

Stinger, I am not saying that the president has committed a crime, although my belief is that what he has done is not within his power under either the Constitution or based upon the wording used to allow him to use the force necessary. Would you answer this for me? In talking about the Patriot Act on April 20, 2004, the president specifically noted that in conducting wiretapping, he would be obtaining a court order. See

Yes for issues which the Patriot Act has to do with, domestic, just as FISA can't the PA can't usurp his Presidential authority. If he chooses to take an issue to a court so be it, it still doesn't hinder what has clearly been cited in case after case his authority to do these types of survielence.

Did you know that during the Cold War we cut into the communications cables of the Soviets and listened. Do you think we had search warrants to do that. We we intercepted the cables going into the Japanese Embassy during WW2 do you think we had a court order? How about Enigma, court order there?

Here is the Presidential Order authorizing warrantess survielence

EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE
EO 12139
23 May 1979


By the authority vested in me as President by Sections 102 and
104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1802 and 1804), in order to provide as set forth in that Act (this
chapter) for the authorization of electronic surveillance for
foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General
is authorized to approve electronic surveillance to acquire foreign
intelligence information without a court order, but only if the
Attorney General makes the certifications required by that Section.

1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act
of 1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to
approve applications to the court having jurisdiction under Section
103 of that Act (50 U.S.C. 1803) to obtain orders for electronic
surveillance for the purpose of obtaining foreign intelligence
information.

1-103. Pursuant to Section 104(a)(7) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)), the following
officials, each of whom is employed in the area of national
security or defense, is designated to make the certifications
required by Section 104(a)(7) of the Act in support of applications
to conduct electronic surveillance:

(a) Secretary of State.

(b) Secretary of Defense.

(c) Director of Central Intelligence.

(d) Director of the Federal Bureau of Investigation.

(e) Deputy Secretary of State.

(f) Deputy Secretary of Defense.

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above
certifications, unless that official has been appointed by the
President with the advice and consent of the Senate.

1-104. Section 2-202 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any electronic surveillance, as defined
in the Foreign Intelligence Surveillance Act of 1978, shall be
conducted in accordance with that Act as well as this Order.''.

1-105. Section 2-203 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any monitoring which constitutes
electronic surveillance as defined in the Foreign Intelligence
Surveillance Act of 1978 shall be conducted in accordance with that
Act as well as this Order.''.

Jimmy Carter.

Now if no one complained about Carter doing it, no one called for his impeachment or claimed he was knowingly breaking the law. Why now?

 

[Stinger]

2 points:

1) It is up to the courts to determine the threat, not the executive branch alone.

Since when?

2) In extraordinary circumstances, the usual warrant requirement does not apply. In that, you are correct, but in your desire to justify Bush's wrongdoing, you are taking that decision out of context. The warrant must still be applied for retroactively, and the FISA procedure takes that into account. Bush bypassed that procedure in his lawlessness.

Again, we have a president who takes the position that he is above the law.

From the Deputy AG

"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 has been done, delegate this authority to the attorney general.

"It is important to understand," explained the official, "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."


Furthermore, said the deputy AG, the requirements for sending wiretapping requests to a special court under the Foreign Intelligence Surveillance Act (known as FISA) were not objectionable, provided that the provision "does not restrict the president's ability to collect foreign intelligence necessary for the national security."

And as the WSJ stated

"The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further 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.""


So where do you get the idea he placed himself "above the law"?


EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE
EO 12139

By the authority vested in me as President by Sections 102 and
104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1802 and 1804), in order to provide as set forth in that Act (this
chapter) for the authorization of electronic surveillance for
foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General
is authorized to approve electronic surveillance to acquire foreign
intelligence information without a court order, but only if the
Attorney General makes the certifications required by that Section.

1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act
of 1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to
approve applications to the court having jurisdiction under Section
103 of that Act (50 U.S.C. 1803) to obtain orders for electronic
surveillance for the purpose of obtaining foreign intelligence
information.

1-103. Pursuant to Section 104(a)(7) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)), the following
officials, each of whom is employed in the area of national
security or defense, is designated to make the certifications
required by Section 104(a)(7) of the Act in support of applications
to conduct electronic surveillance:

(a) Secretary of State.

(b) Secretary of Defense.

(c) Director of Central Intelligence.

(d) Director of the Federal Bureau of Investigation.

(e) Deputy Secretary of State.

(f) Deputy Secretary of Defense.

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above
certifications, unless that official has been appointed by the
President with the advice and consent of the Senate.

1-104. Section 2-202 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any electronic surveillance, as defined
in the Foreign Intelligence Surveillance Act of 1978, shall be
conducted in accordance with that Act as well as this Order.''.

1-105. Section 2-203 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any monitoring which constitutes
electronic surveillance as defined in the Foreign Intelligence
Surveillance Act of 1978 shall be conducted in accordance with that
Act as well as this Order.''.

 

[danarhea]

No, it is not the function of the courts to determine threats. It is the function of the coursts to interpret and administer the law. Nothing more, nothing less.



Baloney. It is probably true that Bush, as have many, many presidents before him, especially in wartime, pushed the power of the executive branch to its limits.

To reiterate, it is my hope that the NSA surveillance program question does make it to the SC. This is new ground: stateless terrorism and advanced technology versus laws originating in the world of 1978. Ultimately, if Bush's actions do find their way to the SC, it may be determined that he did something that pushed beyond the limits of the executive branch. Or maybe not. Thats what courts are for. But take a position that he is above the law? Not hardly.

I respectfully disagree with you, and I have a source that will be hard for you to refute:

Any time you hear the US Government talking about wiretap, a wiretap requires a court order. Nothing has changed. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so.

-President George W. Bush, from a speech he gave in Buffalo, NY, in 2004. Ironically, although Bush showed that he knew the law, he was already breaking it at the time he gave that speech.

 

[oldreliable67]

President George W. Bush, from a speech he gave in Buffalo, NY, in 2004. Ironically, although Bush showed that he knew the law, he was already breaking it at the time he gave that speech.

Oh for heaven's sake! Will you people quit with that BS already? That assertion has been thoroughly debunked on several threads. Do we have to go through that again?

Look, open your mind just a little bit and admit to yourself, "Ok, I believe it is probable, perhaps even highly probable, that Bush lied about the NSA surveillance program in his 2004 remarks about the Patriot Act, but to believe with absolute unequivocal certainty that he lied requires taking a certain portion of his 2004 statements out of context and assuming that they referred to wiretapping in a total, all-encompassing 'global' sense rather than to those referred to by the Patriot Act to which his remarks were addressed."

Now, if you can say that to yourself, then fine. Debate over and we can move on. But to continue to insist with dogmatic certainty, over and over again, that Bush lied in his 2004 remarks about the Patriot Act is just not going to accomplish anything, IMO.

 

[danarhea]

Oh for heaven's sake! Will you people quit with that BS already? That assertion has been thoroughly debunked on several threads. Do we have to go through that again?

Look, open your mind just a little bit and admit to yourself, "Ok, I believe it is probable, perhaps even highly probable, that Bush lied about the NSA surveillance program in his 2004 remarks about the Patriot Act, but to believe with absolute unequivocal certainty that he lied requires taking a certain portion of his 2004 statements out of context and assuming that they referred to wiretapping in a total, all-encompassing 'global' sense rather than to those referred to by the Patriot Act to which his remarks were addressed."

Now, if you can say that to yourself, then fine. Debate over and we can move on. But to continue to insist with dogmatic certainty, over and over again, that Bush lied in his 2004 remarks about the Patriot Act is just not going to accomplish anything, IMO.

1) Whats to debate over? Bush made the statement that getting warrants was the law, at the same time he was circumventing the law. That is pretty much black and white. No amount of splitting hairs and parsing words is going to change that.

2) It is also a fact that requiring warrants through the FISA court is the law of the land. If Bush did not like the law, then he should have worked to change it, not break it.

Gee, maybe Bush is right. You know, I am aware that murder is illegal, but one of my neighbors is acting in a suspicious manner, so I think I will shoot him. Later on my way to work, I will shoot the guy who cuts me off in traffic, because his driving is endangering the lives of others. Later in the day, I ought to pay a visit to a local businessman I know who brags about cheating on his taxes and shoot him too. After all, he is aiding terrorists by not paying his share for the defense of America. And then this evening, on my way home, I will shoot another dangerous driver. Yes, you are right. Laws are pesky things, and sometimes it is best to break them in the interest of security. I know I will sleep more securely tonight after shooting all those people.

On the other hand, maybe there is a reason why people cant just go out and shoot others who they might perceive as a threat. What reason could that be? The law, perhaps? If the law applies to me, the law should also apply to those who have been HIRED to run this country. After all, Bush is not the boss. I am, along with the rest of the American people. If Bush refuses to obey the laws and rules of this nation, he should be fired.

 

[Stinger]

1) Whats to debate over? Bush made the statement that getting warrants was the law, at the same time he was circumventing the law. That is pretty much black and white. No amount of splitting hairs and parsing words is going to change that.

For strictly domestice survielance not for foreign intelligence gathering.

2) It is also a fact that requiring warrants through the FISA court is the law of the land. If Bush did not like the law, then he should have worked to change it, not break it.

He likes the law that's why he was acting within it and making sure all along the way that he was and keeping the proper people informed. If congress did not like the consitution then they should try to get an amendment through all the states, they can't legislate away the presidents authority.

This has all been cited over and over why do you guys keep putting up these spiecious arguements?

******************************************************

EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE
EO 12139
23 May 1979


By the authority vested in me as President by Sections 102 and
104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1802 and 1804), in order to provide as set forth in that Act (this
chapter) for the authorization of electronic surveillance for
foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General
is authorized to approve electronic surveillance to acquire foreign
intelligence information without a court order, but only if the
Attorney General makes the certifications required by that Section.

1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act
of 1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to
approve applications to the court having jurisdiction under Section
103 of that Act (50 U.S.C. 1803) to obtain orders for electronic
surveillance for the purpose of obtaining foreign intelligence
information.

1-103. Pursuant to Section 104(a)(7) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)), the following
officials, each of whom is employed in the area of national
security or defense, is designated to make the certifications
required by Section 104(a)(7) of the Act in support of applications
to conduct electronic surveillance:

(a) Secretary of State.

(b) Secretary of Defense.

(c) Director of Central Intelligence.

(d) Director of the Federal Bureau of Investigation.

(e) Deputy Secretary of State.

(f) Deputy Secretary of Defense.

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above
certifications, unless that official has been appointed by the
President with the advice and consent of the Senate.

1-104. Section 2-202 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any electronic surveillance, as defined
in the Foreign Intelligence Surveillance Act of 1978, shall be
conducted in accordance with that Act as well as this Order.''.

1-105. Section 2-203 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any monitoring which constitutes
electronic surveillance as defined in the Foreign Intelligence
Surveillance Act of 1978 shall be conducted in accordance with that
Act as well as this Order.''.

Jimmy Carter.
************************************************************

Why was it OK for Carter but not Bush? This was upheld in the courts and the Democrats did not try to impeach him over it.

 

[Pacridge]

1) Whats to debate over? Bush made the statement that getting warrants was the law, at the same time he was circumventing the law. That is pretty much black and white. No amount of splitting hairs and parsing words is going to change that.

2) It is also a fact that requiring warrants through the FISA court is the law of the land. If Bush did not like the law, then he should have worked to change it, not break it.

Gee, maybe Bush is right. You know, I am aware that murder is illegal, but one of my neighbors is acting in a suspicious manner, so I think I will shoot him. Later on my way to work, I will shoot the guy who cuts me off in traffic, because his driving is endangering the lives of others. Later in the day, I ought to pay a visit to a local businessman I know who brags about cheating on his taxes and shoot him too. After all, he is aiding terrorists by not paying his share for the defense of America. And then this evening, on my way home, I will shoot another dangerous driver. Yes, you are right. Laws are pesky things, and sometimes it is best to break them in the interest of security. I know I will sleep more securely tonight after shooting all those people.

On the other hand, maybe there is a reason why people cant just go out and shoot others who they might perceive as a threat. What reason could that be? The law, perhaps? If the law applies to me, the law should also apply to those who have been HIRED to run this country. After all, Bush is not the boss. I am, along with the rest of the American people. If Bush refuses to obey the laws and rules of this nation, he should be fired.

I think there's a legitimate debate as to whether Team Bush broke any laws. I saw a law prof. from Cal. Berkley the other day defending Bush's actions. Berkley's not exactly known as a right wing school.

As to whether or not Bush lied? Of course he did. Why did lie? Was it possibly for national security? Don't know willing to let the investigation proceed before making any decision on that. But I'd be willing to bet that if some one asked FDR or Truman if the US was working on a nuclear bomb in the months prior to Aug. 45 they'd have answered with something akin to "A what kind of bomb? Never heard of it. Next question please."

BTW- if you do go on a shooting spree please, pretty please, avoid the Pacific Northwest on your trip. Thanks.

 

[ALiberalModerate]

The Bush Administration specifically sought the authority to order domestic wiretaps without a court order in the Patriot Act. Congress refused to give them that authority at that time. They then chose to break the law.

It is really that simple. When you consider that they can start a wiretap and not get a court order for up to 3 full days, there is no rational reason why they should not have stayed within the law unless they were abusing that power. If the FISA courts were inadequate, then they should have gone before congress and lobbied to have the law changed. That’s how it works here in America. Someone pointed out that during the 60s there was domestic wiretaps without a court order. Those wiretaps were abused by the FBI at the time and later by the Nixon Administration. Hence the reason the FISA courts were established.

Folks we are a nation of laws, not a nation of men. The president just like any other citizen of this country must follow the law. If he does not feel that a law is adequate, then he can try to get congress to change that law. He cannot however just usurp the law.

Moreover, even if President Bush does not abuse this, you can bet that some future president will. That is why there must be oversight. Too many men have died to protect our freedom and liberty in this country for us to just hand it over to a president on some promise of security.

 

[Stinger]

During the cold war when our submarines tapped the Soviet Unions underwater telephone cables, which also handle calls going to and from the US, do you think they went and got a court order, presidents Kennedy, Johnson, Nixon, Carter, Reagan?

During WW2 when we tapped into the Nazi code and intercepted thier tranmission including those into the US do you think we went and got search warrants?

No.


EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE
EO 12139
23 May 1979


By the authority vested in me as President by Sections 102 and
104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1802 and 1804), in order to provide as set forth in that Act (this
chapter) for the authorization of electronic surveillance for
foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General
is authorized to approve electronic surveillance to acquire foreign
intelligence information without a court order, but only if the
Attorney General makes the certifications required by that Section.

1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act
of 1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to
approve applications to the court having jurisdiction under Section
103 of that Act (50 U.S.C. 1803) to obtain orders for electronic
surveillance for the purpose of obtaining foreign intelligence
information.

1-103. Pursuant to Section 104(a)(7) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)), the following
officials, each of whom is employed in the area of national
security or defense, is designated to make the certifications
required by Section 104(a)(7) of the Act in support of applications
to conduct electronic surveillance:

(a) Secretary of State.

(b) Secretary of Defense.

(c) Director of Central Intelligence.

(d) Director of the Federal Bureau of Investigation.

(e) Deputy Secretary of State.

(f) Deputy Secretary of Defense.

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above
certifications, unless that official has been appointed by the
President with the advice and consent of the Senate.

1-104. Section 2-202 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any electronic surveillance, as defined
in the Foreign Intelligence Surveillance Act of 1978, shall be
conducted in accordance with that Act as well as this Order.''.

1-105. Section 2-203 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any monitoring which constitutes
electronic surveillance as defined in the Foreign Intelligence
Surveillance Act of 1978 shall be conducted in accordance with that
Act as well as this Order.''.

Jimmy Carter.

Approved by the courts, known to congress and especially the Democrats who voice NO objections then. Why now?

And I can post from Deputy AG Gorelick similar findings, it is legal and constitutional.

 

[ALiberalModerate]

During the cold war when our submarines tapped the Soviet Unions underwater telephone cables, which also handle calls going to and from the US, do you think they went and got a court order, presidents Kennedy, Johnson, Nixon, Carter, Reagan?

During WW2 when we tapped into the Nazi code and intercepted thier tranmission including those into the US do you think we went and got search warrants?

No.


EXERCISE OF CERTAIN AUTHORITY RESPECTING ELECTRONIC SURVEILLANCE
EO 12139
23 May 1979


By the authority vested in me as President by Sections 102 and
104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1802 and 1804), in order to provide as set forth in that Act (this
chapter) for the authorization of electronic surveillance for
foreign intelligence purposes, it is hereby ordered as follows:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General
is authorized to approve electronic surveillance to acquire foreign
intelligence information without a court order, but only if the
Attorney General makes the certifications required by that Section.

1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act
of 1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to
approve applications to the court having jurisdiction under Section
103 of that Act (50 U.S.C. 1803) to obtain orders for electronic
surveillance for the purpose of obtaining foreign intelligence
information.

1-103. Pursuant to Section 104(a)(7) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)), the following
officials, each of whom is employed in the area of national
security or defense, is designated to make the certifications
required by Section 104(a)(7) of the Act in support of applications
to conduct electronic surveillance:

(a) Secretary of State.

(b) Secretary of Defense.

(c) Director of Central Intelligence.

(d) Director of the Federal Bureau of Investigation.

(e) Deputy Secretary of State.

(f) Deputy Secretary of Defense.

(g) Deputy Director of Central Intelligence.

None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above
certifications, unless that official has been appointed by the
President with the advice and consent of the Senate.

1-104. Section 2-202 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any electronic surveillance, as defined
in the Foreign Intelligence Surveillance Act of 1978, shall be
conducted in accordance with that Act as well as this Order.''.

1-105. Section 2-203 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any monitoring which constitutes
electronic surveillance as defined in the Foreign Intelligence
Surveillance Act of 1978 shall be conducted in accordance with that
Act as well as this Order.''.

Jimmy Carter.

Approved by the courts, known to congress and especially the Democrats who voice NO objections then. Why now?

And I can post from Deputy AG Gorelick similar findings, it is legal and constitutional.

• The Democrats who were privy to the information could not publicly voice their objections because the program was classified. However, many did inform the Bush administration of their objections.

• You brought up surveillance of Nazi communications during World War II. That is totally irrelevant as that would have predated FISA by over 30 years.

• The opinion of the Attorney General or the Assistant AG is totally irrelevant. They are not federal judges. They are merely attorneys and attorneys as well all know have been known to make some pretty ridiculous arguments. For example, as you may know, we have a former attorney general over in Iraq right now who is actually defending Saddam Hussein.

• You posted an Executive Order signed by Jimmie Carter. The problem is, you obviously just posted it off of Drudge or Newsmax and did not actually read it or the statutes it cites. The executive order has the following paragraph:

“1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General
is authorized to approve electronic surveillance to acquire foreign
intelligence information without a court order, but only if the
Attorney General makes the certifications required by that Section”

Notice that last statement. It states that the Executive Order must comply with that section that is cited. That section, states that the surveillance can only occur without a court order if neither party is a United States citizen. So you are comparing apples and oranges.

You can read the statute here:

http://www4.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001802----000-.html

The fact is, the Bush Administration has broken the law and even though you may trust the Bush Administration, I bet you won’t trust every administration that follows. It’s a scary precedent. If the FISA Courts are inadequate, then the Administration should have congress change the law. That’s how it works in our country, we have checks and balances. We are a nation of laws, not men.

I do not believe that Bush should be impeached for this. That is unless we find out that he was using this to spy on political enemies. However, I do believe that this has to stop and that the rule of law must be enforced. As I stated earlier, a lot of men have died protecting our freedoms and liberty for us just to hand it over to any president.

 

[oldreliable67]

If the FISA courts were inadequate, then they should have gone before congress and lobbied to have the law changed.

If you will read the AG's letter articulating the legal framework for the NSA surveillance program, you will find that the admin felt it had sufficient authority under exsiting law, the Constitution, and legal precedents to proceed with the program. Hence, no need to go before Congress and lobby for a change in FISA.

The opinion of the Attorney General or the Assistant AG is totally irrelevant.

Quite the contrary. The statutory authority for the DoJ reads in part as follows:

"The Judiciary Act of 1789, ch. 20, sec. 35, 1 Stat. 73, 92-93 (1789) created the Office of the Attorney General. Originally a one-person part-time position, the Attorney General was to be "learned in the law" with the duty "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments." "

 

[ALiberalModerate]

If you will read the AG's letter articulating the legal framework for the NSA surveillance program, you will find that the admin felt it had sufficient authority under exsiting law, the Constitution, and legal precedents to proceed with the program. Hence, no need to go before Congress and lobby for a change in FISA.



Quite the contrary. The statutory authority for the DoJ reads in part as follows:

"The Judiciary Act of 1789, ch. 20, sec. 35, 1 Stat. 73, 92-93 (1789) created the Office of the Attorney General. Originally a one-person part-time position, the Attorney General was to be "learned in the law" with the duty "to prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and to give his advice and opinion upon questions of law when required by the President of the United States, or when requested by the heads of any of the departments, touching any matters that may concern their departments." "

You are missing my point, their opinion is not legally binding. This statute points out that that he is to act as the Presidents legal council. Just like if I hire a lawyer, he would do the same. However, that lawyer’s opinion is meaningless if a Judge disagrees with him.

Moreover, the Bush Administration tried to get the FISA law changed in the Patriot Act. Congress refused to do so, so if they are now arguing that they have the authority, then why would they have tried to get the law changed? Its does not make any sense.


What is really unbelievable is that you guys would be so partisan as to turn a blind eye to the President violating the law and the constitution. The fact is, I don’t want a Republican doing this, and I don’t want a Democrat doing this either. My liberty is more important to me than some promise of security. If you disagree, then you would have probably been better served to have been born into some authoritarian state where some dictator could peer into your private lives at his whim.

 

[Kushinator]

To say that laws are outdated, and new precedents are set is putting the blame elsewhere for the sake of your own opinion.

He could have made it clear in congress that he needed to "gather information from within the country" but failed to do so.

If this was to leak in his first term, the man wouldnt have been re-elected.

Whats next, is the assurance that the president remain in office a matter of national security and way of keeping america safe?

Troublesome times are to follow.

 

[oldreliable67]

You are missing my point, their opinion is not legally binding.

No, I'm not missing your point. You are not understanding the role of the AG as it pertains to providing the President with interpretations of the law. In one sense, though, you are correct, sort of: 'legally binding' is not a concept that applies in to the AG's advice. The President is not legally bound to follow the AG's advice, though most will do so. However, if the Pres is sufficiently dissatisfied with the advice he is receiving from his appointed AG, he can fire him and appoint a new one. But, and here is where you're missing it, the AG is the President's primary source of advice as to whether or not the President, or more specifically in this context, the Executive Branch of government, can or cannot legally execute or implement a policy via executive order.

It is this simple: (1) the Pres wants to do something. (2) He asks the AG if he can legally do it. (3) The AG sudies the proposal. (4) The AG says yes you can or no can't. (5a) If the Pres. still wants to do something but it can't be done by EO, he finds a sponsor and proposes legislation. (5b) If it can be done via EO, the Pres. issues an EO.

However, that lawyer’s opinion is meaningless if a Judge disagrees with him.

Which hasn't happened. At least, not yet.

What is really unbelievable is that you guys would be so partisan as to turn a blind eye to the President violating the law and the constitution.

No, what is unbelievable is the absolute certainty with which 'you guys' write off the AG's opinion as worthless. Thus far, a number of legal scholars have supported the AG's position; some have opposed it. Clearly, there is room for debate. For now, given the opinions of the legal scholars that I have read, both pro and con, those agreeing with the AG's position seem to have a solid edge. Thats my impression - others will no doubt disagree.

Now, just to be clear, I'll reiterate my position I have stated it on the other threads on this topic: I personally am hoping that Congress follows through on the proposed hearings, and that eventually, this question winds up before the SC. This/these questions are very important for us right now and given the advances in communications technology and battlefield intelligence, the answers have long-term implications in including a legal, extent-of-executive-power as it affects civil liberties context.

 

[ALiberalModerate]

No, I'm not missing your point. You are not understanding the role of the AG as it pertains to providing the President with interpretations of the law. In one sense, though, you are correct, sort of: 'legally binding' is not a concept that applies in to the AG's advice. The President is not legally bound to follow the AG's advice, though most will do so. However, if the Pres is sufficiently dissatisfied with the advice he is receiving from his appointed AG, he can fire him and appoint a new one. But, and here is where you're missing it, the AG is the President's primary source of advice as to whether or not the President, or more specifically in this context, the Executive Branch of government, can or cannot legally execute or implement a policy via executive order.

It is this simple: (1) the Pres wants to do something. (2) He asks the AG if he can legally do it. (3) The AG sudies the proposal. (4) The AG says yes you can or no can't. (5a) If the Pres. still wants to do something but it can't be done by EO, he finds a sponsor and proposes legislation. (5b) If it can be done via EO, the Pres. issues an EO.



Which hasn't happened. At least, not yet.



No, what is unbelievable is the absolute certainty with which 'you guys' write off the AG's opinion as worthless. Thus far, a number of legal scholars have supported the AG's position; some have opposed it. Clearly, there is room for debate. For now, given the opinions of the legal scholars that I have read, both pro and con, those agreeing with the AG's position seem to have a solid edge. Thats my impression - others will no doubt disagree.

Now, just to be clear, I'll reiterate my position I have stated it on the other threads on this topic: I personally am hoping that Congress follows through on the proposed hearings, and that eventually, this question winds up before the SC. This/these questions are very important for us right now and given the advances in communications technology and battlefield intelligence, the answers have long-term implications in including a legal, extent-of-executive-power as it affects civil liberties context.

Those scholars who support the AG's opinion are outnumbered by those who disagree by about 10 to 1.

Moreover, why not just order the wiretap, then get the court order within 3 days like the law provides for?

 

[oldreliable67]

If this was to leak in his first term, the man wouldnt have been re-elected.

Quite the contrary. Following 9/11, feeling was running so high that he got almost anything he asked for, e.g., the Patriot Act. Now that we've gone 4 years without an attack on our home soil, the sense of urgency has greatly diminished, making it commensurately more difficult (to continue the example) for the Pres. to get the Patriot Act extended.

 

[Pacridge]

Those scholars who support the AG's opinion are outnumbered by those who disagree by about 10 to 1.

Moreover, why not just order the wiretap, then get the court order within 3 days like the law provides for?

10 to 1? Got a source for that?

As for the second part, I agree. Seems like there's a law in place to deal with these situations, why not follow it?

 

[oldreliable67]

Those scholars who support the AG's opinion are outnumbered by those who disagree by about 10 to 1.

Got a reference for proof of that? I haven't kept track of the numbers for or against, but my impression is that it is much closer to even or a small edge in favor of supporting. If you can support that assertion, I would appreciate it.

why not just order the wiretap, then get the court order within 3 days like the law provides for?

I've offered my impressions on that on a couple of the other threads. Instead of reiterating it all here, I'll just say (a) the value of signals intelligence (the consideration of which was a part of the AG's position) is very time sensitive, it decays very quickly. (b) The 3 days is not really 3 days in an operational time frame. You quoted the law, so you know that before any surveillance can begin, regardless of whether it is approved beforehand or retroactive approval will be sought, various approvals must be obtained, including the certification of the AG or his designate. Those approvals take time to work their way through channels. So, its not just 3 days, its chains-of-command time expended before the 3 day clock even begins. Even in the most optimistic scenarios, when requests are rushed thu the military chain of command and those levels of approval obtained, then the civilian chain of command to the AG level, it takes time. Meanwhile, any intel is going away, quickly, and the possible opportunity to save lives is being lost.

Ever watch "E-Ring" on TV? Thats a gross simplification of the process but it does illustrate the principle of having the lawyer approve most of the actions in which the hero gets involved. Only in the TV case, it all has to happen within a 45 minute TV show. Were it only that fast in real life.

 

[libertarian_knight]

http://caselaw.lp.findlaw.com/casec...s/36/subchapters/i/sections/section_1802.html

50 USC 36 sc1

" (a)(1) Notwithstanding any other law, the President, through the
Attorney General, may authorize electronic surveillance without a
court order under this subchapter to acquire foreign intelligence
information for periods of up to one year if the Attorney General
certifies in writing under oath that -
(A) the electronic surveillance is solely directed at -
(i) the acquisition of the contents of communications
transmitted by means of communications used exclusively between
or among foreign powers, as defined in section 1801(a)(1), (2),
or (3) of this title; or
(ii) the acquisition of technical intelligence, other than
the spoken communications of individuals, from property or
premises under the open and exclusive control of a foreign
power, as defined in section 1801(a)(1), (2), or (3) of this
title;
(B) there is no substantial likelihood that the surveillance
will acquire the contents of any communication to which a United
States person is a party; and
(C) the proposed minimization procedures with respect to such
surveillance meet the definition of minimization procedures under
section 1801(h) of this title;..."

aka Section 1802 of the United State Code

Section 1802. Electronic surveillance authorization without court order; certification by Attorney General; reports to Congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

===
http://caselaw.lp.findlaw.com/casec...s/36/subchapters/i/sections/section_1809.html
Section 1809 Crimminal sanctions

(a) Prohibited activities
A person is guilty of an offense if he intentionally -
(1) engages in electronic surveillance under color of law
except as authorized by statute; or
(2) discloses or uses information obtained under color of law
by electronic surveillance, knowing or having reason to know that
the information was obtained through electronic surveillance not
authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this
section that the defendant was a law enforcement or investigative
officer engaged in the course of his official duties and the
electronic surveillance was authorized by and conducted pursuant to
a search warrant or court order of a court of competent
jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of
not more than $10,000 or imprisonment for not more than five years,
or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section
if the person committing the offense was an officer or employee of
the United States at the time the offense was committed.

===
A felony.

50 USC 36.I
http://caselaw.lp.findlaw.com/casecode/uscodes/50/chapters/36/subchapters/i/toc.html