President had legal authority to OK taps
 

President had legal authority to OK taps

From a former Clinton associate Attorney General.

Every president since FISA's passage has asserted that he retained inherent power to go beyond the act's terms. Under President Clinton, deputy Atty. Gen. Jamie Gorelick testified that "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


But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept.11. I do not believe the Constitution allows Congress to take away from the president the inherent authority to act in response to a foreign attack. That inherent power is reason to be careful about who we elect as president, but it is authority we have needed in the past and, in the light of history, could well need again.

Re: President had legal authority to OK taps
 

How dare you drag Clinton's good name into this!

Re: President had legal authority to OK taps
 

Yeah, let's start the 10th friggin thread on this and ignore the fact that I quoted most of that a couple days ago in another one.

Re: President had legal authority to OK taps
 

Your citation of the WSJ editorial which mentioned cases probably got somewhat lost buried in the other thread. I see nothing wrong with having a thread here started by Adios, who is a longterm and justly respected poster.

I looked over the case the WSJ mentioned. Here's a link:

http://news.findlaw.com/hdocs/docs/t...a111802opn.pdf

It's hard reading. The relevant section is section III, but it's not too relevant. It seems to be talking about using intelligence gained from FISA for the purpose of conducting foreign policy vs. using it for the purpose of criminal prosecution. All it does that is relevant to warrantless wiretapping, it seems to me, is cite another case, United States vs. Truong, 629F.2d, 4th circuit. (I could not find that case with a somewhat cursory google search just now.) See page 48 of the link.

My question is this: If indeed, Truong and other cases have asserted or assumed the president's right to conduct a warrantless search prior to the institution of FISA, does FISA define a new procedure, in other words, superseeding that assumption, or does it merely say how a search with a warrant is to be conducted? I note that the case cited by the WSJ talks about Truong as dealing with "pre-FISA" surveillance. That would seem to indicate that FISA established new parameters for both warrantless and warranted suveillance.

Here's a link to FISA:

http://www4.law.cornell.edu/uscode/h...0_36_20_I.html

Re: President had legal authority to OK taps
 

Great. So two big-government Presidents both of whom represent authoritaian outlooks believe these incursions into privacy are correct.

Yet another good reason to vote Libertarian.

Re: President had legal authority to OK taps
 

Clinton's record on civil liberties is far from good. He fought tooth and nail to restrict encryption, even after the pulication of PGP on the net made it a moot point, and supported the Communications Decency act, just off the top of my head. I don't have much patience with the "Clinton did it" act as a defence for every excess of Dubbaya's. Let the impeachment begin.

Re: President had legal authority to OK taps
 

I am no lawyer so I'm going to try to analyze this thing further legally except for the following comments. Besides the question you pose as to how the previous precedents apply, the WSJ piece also alluded to the fact that no president has yet to "recognize" FISA. Thus if FISA is in fact an unconstitutional limitation of the president's inherent powers, then he is free to comply or not as he pleases. This would be similar to the disputes over the War Powers Act.

And the fact that the Attorney General, though a political appointee, has vetted the president's actions is not insignificant as he is the chief legal interpreter in absence of court decisions, although I don't believe his opinion carries the force of law as it does in many states with a state AG.

If the president has in fact exceeded his authority, then the only way such a determination can be made is for members of congress to bring a suit before the SCOTUS and have them decide it.

Re: President had legal authority to OK taps
 

The shoddy argumentation evidenced in your link is characteristic of Bush apologetics. There is no dispute or controversy over whether Bush can eavesdrop of foreign communications without a warrant. The issue, which Schmidt addresses only obliquely, is whether the President can conduct warrentless searches on U.S. citizens. The White House position is that the President's status as commander-in-chief during the now continuous "wartime" means that no U.S. citizen has any constitutional protection from encroachment by the Executive branch -- that the President can use one vague phrase in the Constitution to erase all the others.

And, of course, there's always the howler: "But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept. 11." Bin Laden was at the top of the FBI's most wanted list the day before 9/11. Islamicist terrorists had previously attacked the same target. The intelligence services reported that al Qaeda was "determined" to attack on U.S. soil. A blue-ribbon commission expressly warned, after more than two eyars of investigation, that terrorists attacks on U.S. soil were not only foreseeable but "likely." This is the sort of transparent deception that persuaded tens of millions of Republicans not only to condone and tolerate mass murder in Iraq but also to jettison their own, paid-in-blood rights. The greater threat to Americans is not from without, but from within.

Re: President had legal authority to OK taps
 

[ QUOTE ]
The issue, which Schmidt addresses only obliquely, is whether the President can conduct warrentless searches on U.S. citizens.

[/ QUOTE ]

I'm not as up-to-date on this as you are I'm sure. My understanding is that the NYT bruhaha is about eavesdropping on communications between U.S. citizens and foreign contacts. More info on what you are stating would be appreciated.

[ QUOTE ]
The White House position is that the President's status as commander-in-chief during the now continuous "wartime" means that no U.S. citizen has any constitutional protection from encroachment by the Executive branch -- that the President can use one vague phrase in the Constitution to erase all the others.

[/ QUOTE ]

You may surprised by this but I think this a legitimate point you make. I brought up the legitimacy of the term "War on Terror" in another recent post and I think alot of people have a problem with this term for the reason you imply. When does "wartime" end in such a war as the "War on Terror?"

[ QUOTE ]
And, of course, there's always the howler: "But we cannot eliminate the need for extraordinary action in the kind of unforeseen circumstances presented by Sept. 11." Bin Laden was at the top of the FBI's most wanted list the day before 9/11. Islamicist terrorists had previously attacked the same target. The intelligence services reported that al Qaeda was "determined" to attack on U.S. soil. A blue-ribbon commission expressly warned, after more than two eyars of investigation, that terrorists attacks on U.S. soil were not only foreseeable but "likely." This is the sort of transparent deception that persuaded tens of millions of Republicans not only to condone and tolerate mass murder in Iraq but also to jettison their own, paid-in-blood rights. The greater threat to Americans is not from without, but from within.

[/ QUOTE ]

Again I think the current bruhaha and the problems with specifically defining the "War on Terror" (is it a war really and if so how do we know when it ends?) give rise to the perception that as you write:

The greater threat to Americans is not from without, but from within.

Re: President had legal authority to OK taps
 

[ QUOTE ]
My understanding is that the NYT bruhaha is about eavesdropping on communications between U.S. citizens and foreign contacts. More info on what you are stating would be appreciated.

[/ QUOTE ]
That's right -- there have been some purely domestic intercepts, but NSA claims they were few and accidental. They weren't authorized by Bush's order. The issue is whether the U.S. can spy on U.S. citizens, presumably protected against domestic spying by the 4th amendment, when they communicate with people outside of this country, or perhaps with non-citizens within this country.

Since there is no reason to believe that "terrorism" can ever be eliminated or defeated, the "war on terror" is a euphemism for "permanent war" and permanent plenary power to the President. In other words, the President's power is not constrained by law but by his sense of what he can get away with. Rank-and-file Republicans and appear to believe that he should be allowed to get away with anything and everything.

Re: President had legal authority to OK taps
 

"if FISA is in fact an unconstitutional limitation of the president's inherent powers, then he is free to comply or not as he pleases."

I'm not an attorney either, but I can't imagine that this is correct. The president can simply decide a law he doesn't want to follow interferes with what he sees as his "inherent" powers and then violates that law?

On the Lehrer show tonight, one of the discussion partricipants said that section 1811 of FISA is the applilcable section. The attorney general has asserted that the president has the power under the authority to use force granted to him by Congress in the wake of 9/11 to wiretap without a warrant. Section 1811 says, "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 a period not to exceed fifteen calendar days following a declaration of war by the Congress."

But all this still does not answer my question, which is does FISA cover all warrant requirements for wiretapping, or can there be wiretapping outside of the FISA requirements? My guess is, as you suggest, that an appeal to the Supreme Court will be the only way we get a definitive answer to that question.

I note that the attorney general also claims that Congress was approached about amending FISA and that the administration felt it wouldn't be done. That tells me that the administration thought what it was doing did indeed come under the FISA regulations and, since it couldn't get them revised, decided to go ahead anyway.

Re: President had legal authority to OK taps
 

[ QUOTE ]
Thus if FISA is in fact an unconstitutional limitation of the president's inherent powers, then he is free to comply or not as he pleases. This would be similar to the disputes over the War Powers Act.

[/ QUOTE ]

If it is unconstitutional, he has to have it overturned by the courts. He can't unilaterally decide what is constitutional or not, that will be decided by the supreme court.

Re: President had legal authority to OK taps
 

[ QUOTE ]
"if FISA is in fact an unconstitutional limitation of the president's inherent powers, then he is free to comply or not as he pleases."

I'm not an attorney either, but I can't imagine that this is correct. The president can simply decide a law he doesn't want to follow interferes with what he sees as his "inherent" powers and then violates that law?

[/ QUOTE ]

The Supreme Court doesn't listen to "what if" cases. If Bush feels the law is unconstitutional, he can either follow it anyways, or decide to ignore it. There's no third procedural option. It's just like every other case where someone (black schoolchildren in Topeka, Scopes, etc.) decided not to follow a law, then challenged its validity when proceedings were brought against them. I'm not sure how court proceedings would arise to test this law, but there's no other way to get a definitive ruling on its consitutionality.

Re: President had legal authority to OK taps
 

bobman, I think you are right in your analysis. I remembered the court action over the line item veto because I remember members of congress challenging it. Their suit was thrown out due to lack of standing. I googled and found the following regarding standing to bring suit:

Traditional standing doctrine requires that a plaintiff have "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Moreover, the personal injury must be "concrete and particularized." Congress cannot grant standing to someone who does not satisfy the Constitutional standing requirements by purporting to authorize them to bring suit.

The line item veto was ultimately struck down when some hospitals affected by a line item veto of certain medicare spending brought suit. Thus it would seem that the only way this thing might be tested in court is for someone who is the subject of a warrantless wiretap to bring suit. But of course it would be almost impossible to prove it had happened since the government will say the matter is classified. And any such subject is obviously going to have to be totally innocent of any suspected wrong-doing or he is not going to be bringing such action.

And just as obviously, no federal prosecutor is going to bring action against the president on this matter, even if he is thought to have violated the law. So the only way for congress to do anything regarding past such actions, would indeed be to attempt to bring impeachment proceedings, which of course isn't going to fly in a repub congress, or even with repubs as a significant minority in the senate.

The only thing congress can do it looks like, is regarding the future by ammending the FISA to make it more clear, which the repubs won't go for either.