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post #1 of 40 (permalink) Old 01-18-2006, 06:12 AM Thread Starter
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Bush can wiretap in time of war

President had legal authority to OK taps

By John Schmidt
John Schmidt served under President Clinton from 1994 to 1997 as the associate attorney general of the United States.

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.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

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.

In the most recent judicial statement on the issue, 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 passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

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."

FISA contains a provision making it illegal to "engage in electronic surveillance under color of law except as authorized by statute." The term "electronic surveillance" is defined to exclude interception outside the U.S., as done by the NSA, unless there is interception of a communication "sent by or intended to be received by a particular, known United States person" (a U.S. citizen or permanent resident) and the communication is intercepted by "intentionally targeting that United States person." The cryptic descriptions of the NSA program leave unclear whether it involves targeting of identified U.S. citizens. If the surveillance is based upon other kinds of evidence, it would fall outside what a FISA court could authorize and also outside the act's prohibition on electronic surveillance.

The administration has offered the further defense that FISA's reference to surveillance "authorized by statute" is satisfied by congressional passage of the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks. The administration argues that obtaining intelligence is a necessary and expected component of any military or other use of force to prevent enemy action.

But even if the NSA activity is "electronic surveillance" and the Sept. 11 resolution is not "statutory authorization" within the meaning of FISA, the act still cannot, in the words of the 2002 Court of Review decision, "encroach upon the president's constitutional power."

FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.

Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.

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.

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post #2 of 40 (permalink) Old 01-18-2006, 07:32 AM
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RE: Bush can wiretap in time of war

That article hardly states that he can wiretap in a time of war.

It does point out what the president's case for wiretapping rests on, which is pretty flimsy IMO.

"the post-Sept. 11 resolution giving the president authority to "use all necessary and appropriate force" to prevent those responsible for Sept. 11 from carrying out further attacks."

The word that seems to be ignored in this by the Bush administration is appropriate. I would think the test of an appropriate measure is that it conforms to current law such as FISA.

"No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation."

True. I have a hard time believing that it is more effective because our intelligence agencies were complaining about drinking from a fire hose BEFORE 9-11. How can a boatload of additional info available(essentially making the firehose you are drinking from larger) improve the situation??????

"If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose."

How can this author make the statement that only the president and NSA only know how effective thee surveillance is and then turn around and say that it's "immense." Poor writing. The danger IMO is immense and thee benefit negligible at best for the reasons I cited above.



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post #3 of 40 (permalink) Old 01-18-2006, 07:39 AM
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RE: Bush can wiretap in time of war

Quote:
That Guy - 1/18/2006 9:32 AM

How can this author make the statement that only the president and NSA only know how effective the surveillance is and then turn around and say that it's "immense." Poor writing. The danger IMO is immense and the benefit negligible at best for the reasons I cited above.
The whole "trust me, I know what I'm doing" logic to this really is laughable. I'm hoping the ACLU will have some luck with their lawsuit.

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post #4 of 40 (permalink) Old 01-18-2006, 07:56 AM
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RE: Bush can wiretap in time of war

Read this part again.

Bot



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.

In the most recent judicial statement on the issue, 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 passage of the Foreign Intelligence Surveillance Act in 1978 did not alter the constitutional situation. That law created the Foreign Intelligence Surveillance Court that can authorize surveillance directed at an "agent of a foreign power," which includes a foreign terrorist group. Thus, Congress put its weight behind the constitutionality of such surveillance in compliance with the law's procedures.

But as the 2002 Court of Review noted, if the president has inherent authority to conduct warrantless searches, "FISA could not encroach on the president's constitutional power."

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."
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post #5 of 40 (permalink) Old 01-18-2006, 08:25 AM
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RE: Bush can wiretap in time of war

I don't think it's been determined if they were
listening in on U.S. citizens, has it?
post #6 of 40 (permalink) Old 01-18-2006, 08:35 AM
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RE: Bush can wiretap in time of war

The Clinton-Gore administration had engaged in warrantless physical searches; an FBI search of the home of CIA turncoat Aldrich Ames without permission from a judge. Clinton's deputy attorney general, Jamie Gorelick, had testified before Congress that the president had the inherent authority to engage in physical searches without warrants.

What's good for the goose is good for the gander.[:)]

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post #7 of 40 (permalink) Old 01-18-2006, 01:20 PM
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RE: Bush can wiretap in time of war

Quote:
AMGod - 1/18/2006 10:35 AM

The Clinton-Gore administration had engaged in warrantless physical searches; an FBI search of the home of CIA turncoat Aldrich Ames without permission from a judge. Clinton's deputy attorney general, Jamie Gorelick, had testified before Congress that the president had the inherent authority to engage in physical searches without warrants.

What's good for the goose is good for the gander.[:)]
Or, you could check the law to make sure the facts are correct before you spread half-truths. Observe...

Quote:
This morning, ThinkProgress revealed charges of hypocrisy leveled against former Vice President Al Gore by Attorney General Gonzales were completely baseless. Now, the AP has updated its story on the Bush administration’s smear of Gore to include the facts:

McClellan said the Clinton-Gore administration had engaged in warrantless physical searches, and he cited an FBI search of the home of CIA turncoat Aldrich Ames without permission from a judge. He said Clinton’s deputy attorney general, Jamie Gorelick, had testified before Congress that the president had the inherent authority to engage in physical searches without warrants.

“I think his hypocrisy knows no bounds,� McClellan said of Gore.

But at the time of the Ames search in 1993 and when Gorelick testified a year later, the Foreign Intelligence Surveillance Act required warrants for electronic surveillance for intelligence purposes, but did not cover physical searches. The law was changed to cover physical searches in 1995 under legislation that Clinton supported and signed.

Bush’s attorney general, Alberto Gonzales, made the same arguments as McClellan during interviews Monday on CNN’s “Larry King Live� and Fox News Channel’s “Hannity & Colmes.�
More...

http://thinkprogress.org/2006/01/17/ap-reports-facts
gg...try again tomorrow.
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post #8 of 40 (permalink) Old 01-18-2006, 04:43 PM
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RE: Bush can wiretap in time of war

Quote:
Ammonium - 1/18/2006 3:20 PM

Quote:
AMGod - 1/18/2006 10:35 AM

The Clinton-Gore administration had engaged in warrantless physical searches; an FBI search of the home of CIA turncoat Aldrich Ames without permission from a judge. Clinton's deputy attorney general, Jamie Gorelick, had testified before Congress that the president had the inherent authority to engage in physical searches without warrants.

What's good for the goose is good for the gander.[:)]
Or, you could check the law to make sure the facts are correct before you spread half-truths. Observe...

Quote:
This morning, ThinkProgress revealed charges of hypocrisy leveled against former Vice President Al Gore by Attorney General Gonzales were completely baseless. Now, the AP has updated its story on the Bush administration’s smear of Gore to include the facts:

McClellan said the Clinton-Gore administration had engaged in warrantless physical searches, and he cited an FBI search of the home of CIA turncoat Aldrich Ames without permission from a judge. He said Clinton’s deputy attorney general, Jamie Gorelick, had testified before Congress that the president had the inherent authority to engage in physical searches without warrants.

“I think his hypocrisy knows no bounds,� McClellan said of Gore.

But at the time of the Ames search in 1993 and when Gorelick testified a year later, the Foreign Intelligence Surveillance Act required warrants for electronic surveillance for intelligence purposes, but did not cover physical searches. The law was changed to cover physical searches in 1995 under legislation that Clinton supported and signed.

Bush’s attorney general, Alberto Gonzales, made the same arguments as McClellan during interviews Monday on CNN’s “Larry King Live� and Fox News Channel’s “Hannity & Colmes.�
More...

http://thinkprogress.org/2006/01/17/ap-reports-facts
gg...try again tomorrow.
Thnkprogressive.org. Whoa. Got anything from another objective source like maybe Commies_are_us.com or Ima_nazi_n_youre_toast.org?



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post #9 of 40 (permalink) Old 01-18-2006, 04:57 PM
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RE: Bush can wiretap in time of war

Quote:
guage - 1/18/2006 8:25 AM

I don't think it's been determined if they were
listening in on U.S. citizens, has it?
Only that Bush said they were. Not that you can trust what he says. [:I][8)]

OBK #35

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post #10 of 40 (permalink) Old 01-18-2006, 05:51 PM
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RE: Bush can wiretap in time of war

Quote:
old300D - 1/18/2006 6:57 PM

Quote:
guage - 1/18/2006 8:25 AM

I don't think it's been determined if they were
listening in on U.S. citizens, has it?
Only that Bush said they were. Not that you can trust what he says. [:I][8)]
And that is supposed to be what the Select Intelligence Committees of both houses are supposed to insure. That is the whole damned purpose of of those committees--oversight. If those mofos don't do their job then you can bet yerass that this or any other Adminstration will run with the ball as far as they can go. It is especially enumbant upon the party not in the Whitehouse to scrutinize the Exec.

According to the above analysis from an attorney with the Clinton Administration, precedence and Judicial Branch interpretation are on the Ecexc's side. It will be interesting to see how the various lawsuits play out.

Even more interesting will be when the Democrats get the Whitehouse, will they voluntarily restrict that power? Will they ask Congress to make laws restricting the Exec?

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