Domestic spying

[Ogie Oglethorpe]

Originally posted by Ramo


I don't know what you're trying to demonstrate by those cases. I never claimed that the President hasn't been given power by the courts to conduct warrantless searches (even if I disagree with those rulings).

And yet you continued to request where the courts dreamed up the president had such power and where it was enshrined in the constitution. Right

[Ramo]

A load of crap. The first sentence namely "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. " absolutely has precedential effect

That's bull****. The decision said that this assertion was not the question before the court. The question before the court was whether FISA "warrants" were legally equivalent to actual warrants. Precedents only matter on questions before the court.

and is supported ad nauseum by all the other appelate rulings

Prove it. And remember, FISA warrants are not 4th Amendment warrants.

Its a circular arguement. You keep saying Title 50 requires application of FISA which requires this or that. Both of which are congressional statues that attempt to limit the agreed to (by appelate and FISCR court decisions) powers of the executive, which can't be done.

You're right. This is a circular argument. You keep insisting that the Constitution gives the President power to spy for "foreign intelligence" independent of Congressional or Judiciary constraints without providing genuine precedent or even a logical argument from the Constitution.

It is generally understood that domestic based foreign nationals have the same protections as a US citizen.

Your general comprehension is wrong. The definition of electronic surveillance deals with "US persons," which specifically excludes nonresidents based in the US (like Truong).

And yet you continued to request where the courts dreamed up the president had such power and where it was enshrined in the constitution. Right

You're confused. You might want to read that again.

There are two distinctions here.
a. There is power to wiretap domestic-foreign connections , regardless of Congressional/Judicial constraints.
b. There is power to conduct warrantless wiretapping of domestic-foreign connections.

The appelate courts were clearly saying "b," not "a" (and I disagree with both). And "b" does not contradict the fact that what Dear Leader did was illegal due to the clear lack of statutory justification.

You're claiming "a." And you're wrong, that's not what the courts said. As for my "request," I was asking if you could provide a logic argument justifying "a" from the Constitution. Since you believe in it so strongly.

[Alexander's Horse]

move along people, nothing to see here..

[Vince278]

Originally posted by Alexander's Horse
move along people, nothing to see here..

[Ramo]

I just read the (nonpartisan) Congressional Research Office's memo on the legality of the NSA program. It's pretty interesting.

It says this in regards to In Re: Sealed Case, backing up what I was getting at earlier:

While the Court of Review does not cite to the cases to which it is referring, its allusion to
the holdings of “all the other courts to have considered the issue,” appears to have been to
cases which pre-date FISA’s passage or which address pre-FISA surveillances.104 Such cases
dealt with a presidential assertion of inherent authority in the absence of congressional action
to circumscribe that authority. Where the Congress has exercised its constitutional authority
CRS-32
310 F.105 .3d at 746.
in the areas of foreign affairs and thereby has withdrawn electronic surveillance, as defined
by FISA, from the “zone of twilight,” between Executive and Legislative constitutional
authorities, it might be argued that the President’s asserted inherent authority to engage in
warrantless electronic surveillance was thereby limited. In the wake of FISA’s passage, the
Court of Review’s reliance on these pre-FISA cases or cases dealing with pre-FISA
surveillances as a basis for its assumption of the continued vitality of the President’s inherent
constitutional authority to authorize warrantless electronic surveillance for the purpose of
gathering foreign intelligence information might be viewed as somewhat undercutting the
persuasive force of the Court of Review’s statement.

It brings up a point that I had overlooked WRT the Supreme Court decision, Keith:

The Court expressed no opinion as to “the issues which may be
involved with respect to activities of foreign powers or their agents,”39 but invited Congress
to establish statutory guidelines.40 Thus, at least insofar as domestic surveillance is
concerned, the Court has recognized that Congress has a role in establishing rules in matters
that touch on national security.

So, SCOTUS has said that Congress has authority to establish statutory guidelines over surveillance of foreign powers, at the least when it deals with domestic persons. The theory that Powerline's promulgating is just a delusion of authoritarian statists with no grounding in the law.

This is where we're at: Keith (which certainly has more importance than some bald assertion, based exclusively on pre-FISA cases, that the FISA court admitted didn't address the questions before the court) says that Congress has authority to create statutory rules on "electronic surveillance." The US code says that "electronic surveillance" outside of statute is illegal. And the NSA program is clearly operating outside of statutory justification, including FISA. Therefore, the NSA program is illegal. Quantum Electrodynamics.

http://www.fas.org/sgp/crs/intel/m010506.pdf

[Alexander's Horse]

ZZZZZZZZZZZZZZZ

[Ramo]

...Writes a government bureaucrat.

[Alexander's Horse]

Its always amusing to watch those standing on the outside looking in.

[Berzerker]

like a zoo animal?

[Alexander's Horse]

uh oh - berz is here - I predict this thread will hit 500

[Ted Striker]

.

[Ogie Oglethorpe]

[QUOTE] Originally posted by Ramo
I just read the (nonpartisan) Congressional Research Office's memo on the legality of the NSA program. It's pretty interesting.

It says this in regards to In Re: Sealed Case, backing up what I was getting at earlier:

quote:
While the Court of Review does not cite to the cases to which it is referring, its allusion to
the holdings of “all the other courts to have considered the issue,” appears to have been to
cases which pre-date FISA’s passage or which address pre-FISA surveillances.104 Such cases
dealt with a presidential assertion of inherent authority in the absence of congressional action
to circumscribe that authority. Where the Congress has exercised its constitutional authority
CRS-32
310 F.105 .3d at 746.
in the areas of foreign affairs and thereby has withdrawn electronic surveillance, as defined
by FISA, from the “zone of twilight,” between Executive and Legislative constitutional
authorities, it might be argued that the President’s asserted inherent authority to engage in
warrantless electronic surveillance was thereby limited. In the wake of FISA’s passage, the
Court of Review’s reliance on these pre-FISA cases or cases dealing with pre-FISA
surveillances as a basis for its assumption of the continued vitality of the President’s inherent
constitutional authority to authorize warrantless electronic surveillance for the purpose of
gathering foreign intelligence information might be viewed as somewhat undercutting the
persuasive force of the Court of Review’s statement.

Its rather unsurprising that a congressional research arm would take up the arguement affirming consitutional power of the legislative. Color me shocked shocked I tell you! That being said it doesn't necessarily advance the claim. In point of fact it is akin to every President asserting that FISA satutes in no way can constrain their inherent constitutional authority to proceed with unwarranted and unauthorized wire taps for foreign intel purposes.

Moreover if as the appelate courts affirm and you yourself concede the president has inherent constitutional authority to authorize warrantless survellance in the instances of foreign intellignece operations then the issue is as you describe whether the legislative likewise has any legitamite claim to constituional authority and if so can they constrain the exectuive accordingly per Jackson's opinion in Youngstown v. Sawyer.

The only claim congress has is the one referenced in the report and was rightly suspected as a claim prior to report issuance by the Powerline folk. Their discussion ensues

I think there is only one way in which an argument for the illegality of the NSA intercepts can be framed. I think critics must argue that the intercepts take place in a zone of military policy where both the President and Congress have powers; that Congress, in enacting FISA, was not limiting the President's powers, but exercising its own; and that, where the President and Congress both attempt to exercise legitimate powers under the Constitution, their competing claims should be reconciled by concluding that Congress cannot bar the President from exercising his constitutional powers, but can regulate the manner in which he carries out those responsibilities.

Can such an argument persuasively be made with regard to electronic surveillance for foreign intelligence purposes? If so, it would have to begin with Congress's constitutional powers relating to military affairs:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Of these powers, the only one that possibly could apply is: "To make Rules for the Government and Regulation of the land and naval forces." Little case authority construing that clause exists. It was the apparent basis for Congress's adoption of a system of military justice; more recently, Congress adopted the "don't ask, don't tell" policy on homosexuals in the military pursuant to this clause.

While I have not had time for exhaustive research, I can find no suggestion in the case law that the "government and regulation" clause has ever been found to conflict with or limit the President's powers as Commander in Chief. I think the most natural reading of the clause is that, along with the power to raise and support an army and to provide and maintain a navy, it gives Congress the right to establish and organize the armed forces; but the actual deployment and use of the armed forces so established, especially in time of war, is exclusively within the powers of the executive branch. Thus, viewing the NSA as a military asset and its surveillance programs as part of the conduct of a war by the chief executive, Congress could regulate, for example, employment policies of the NSA, but could not dictate to the President how he uses the operational capabilities of the NSA to further military goals. On that approach, if FISA were construed in a manner that would interfere with the President's authority as Commander in Chief, it would be, to that extent, unconstitutional.

In light of no actual precedence by the congress authoring legislation that actually regulates the manner in which military forces are actually deployed,(for example given that the President has been given the authority to deploy forces (and he has by inherent constituional authority as we both agree the courts have to date ruled), the legislative can not for example tell him to deploy them in Antartica), congeress's claim is far weaker than that of the executive with regard constitutional powers to decide on force deployment/asset utilization.

It brings up a point that I had overlooked WRT the Supreme Court decision, Keith:


So, SCOTUS has said that Congress has authority to establish statutory guidelines over surveillance of foreign powers, at the least when it deals with domestic persons. The theory that Powerline's promulgating is just a delusion of authoritarian statists with no grounding in the law.

This is where we're at: Keith (which certainly has more importance than some bald assertion, based exclusively on pre-FISA cases, that the FISA court admitted didn't address the questions before the court) says that Congress has authority to create statutory rules on "electronic surveillance." The US code says that "electronic surveillance" outside of statute is illegal. And the NSA program is clearly operating outside of statutory justification, including FISA. Therefore, the NSA program is illegal. Quantum Electrodynamics.

http://www.fas.org/sgp/crs/intel/m010506.pdf

While SCOTUS may have indeed invited the legislative to come up with guidlines that in no way indicates they meant for statute to effectively decide if and when the President could exercise that authority for foreign intelligence gathering. More importantly the Keith case was primarily dealing with surveillance of domestic threats not for foreign intelligence gathering. The invitation of SCOTUS was IMO to further clarify this distinction.

[Ramo]

That being said it doesn't necessarily advance the claim.

Do you deny that Truong was decided on pre-FISA grounds?

Moreover if as the appelate courts affirm and you yourself concede the president has inherent constitutional authority to authorize warrantless survellance in the instances of foreign intellignece operations

To clarify, I reject the premise and think SCOTUS should as well, but until they make a decision, that's the precedent.

then the issue is as you describe whether the legislative likewise has any legitamite claim to constituional authority.

[...]


While I have not had time for exhaustive research, I can find no suggestion in the case law that the "government and regulation" clause has ever been found to conflict with or limit the President's powers as Commander in Chief.

More nonsense from Powerline. Once again from Youngstown:

The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.

The President did not have authority to take over steel mills in Korea outside of Congressional authorization. War is not a blank check.

While SCOTUS may have indeed invited the legislative to come up with guidlines that in no way indicates they meant for statute to effectively decide if and when the President could exercise that authority for foreign intelligence gathering. More importantly the Keith case was primarily dealing with surveillance of domestic threats not for foreign intelligence gathering.

But nonetheless Keith explicitly invited Congress to create rules over domestic aspects of surveillance, even if it involves foreign powers.

Again, from the memo:

The Court expressed no opinion as to “the issues which may be involved with respect to activities of foreign powers or their agents,”39 but invited Congress to establish statutory guidelines.40 Thus, at least insofar as domestic surveillance is concerned, the Court has recognized that Congress has a role in establishing rules in matters that touch on national security.

[Ogie Oglethorpe]

Rather than rely on the rather dubious interpretation of the Keith case via the CRS (which I maintain does have a vested interest as much so as the executive) it is much more appropriate to go to the language of the Keith case itself.

IV

We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [407 U.S. 297, 322] as to, the issues which may be involved with respect to activities of foreign powers or their agents. 20 Nor does our decision rest on the language of 2511 (3) or any other section of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security.

Moreover, we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.

Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment [407 U.S. 297, 323] if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. As the Court said in Camara v. Municipal Court, 387 U.S. 523, 534 -535 (1967):

"In cases in which the Fourth Amendment requires that a warrant to search be obtained, `probable cause' is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. . . . In determining whether a particular inspection is reasonable - and thus in determining whether there is probable cause to issue a warrant for that inspection - the need for the inspection must be weighed in terms of these reasonable goals of code enforcement."

It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 2518.

The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do [407 U.S. 297, 324] hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.

As I suspected the language in the decision speaks clearly to situations of domestic security and give no invitation to Congress to establish guidelines for international surveillance and/or foreign threat. How surprising that the CRS would attempt to further the powers of the legislative by purposely and/or selectively paraphrasing/misquoting.

[Ogie Oglethorpe]

Originally posted by Ramo


The President did not have authority to take over steel mills in Korea outside of Congressional authorization. War is not a blank check.

As long as your bringing up Youngstown

the ground on which the Youngstown court rejected Truman's claim that his powers as Commander in Chief gave him the right to seize steel mills was not the fact that Congress disagreed, but rather, and more properly, the fact that the seizure was a domestic, not a foreign, matter. Justice Black wrote for the majority:

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Likewise, when Justice Jackson turned specifically to the President's war powers, he emphasized the domestic nature of the steel controversy, not his own three-part test:

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

It occurrs to me that the invokation of Youngstown is a misguided one.

The question at hand in the Youngstown case was whether the President had constitutional authority to take action against the steel mills. The difference obviously in that case vs. the NSA instance today is that the court, rightly so, said he did not. That clearly is not the case today as the appelate cases affirm he does indeed have such authority.

That being said the next question then is whether the executive branches authority can be checked by legislative (in other words does the legislative have similarly provided constiutional authority granted to them). Clearly if the exectutives authority is the sole province provided for in the constitution (or judical interpretations thereof) then the legislative can not constitutionally constrain this authority. I maintain the CRS's arguement that it does indeed have constituional mandate is at best tenuous and much moreso than that of the president which has the force of judicial precedent.

The coequal branches of governement were designed such that they could not of their own volition take away the constituional power of another branch. It is equally unconstitutional for the president via executive order to take away the powers of the legislative as it is for the lawmakers to pass statute that diminishes the constitutional powers granted to the executive.