Domestic spying

[Ogie Oglethorpe]

Originally posted by Imran Siddiqui

And it seems to me that there were some domestic to domestic wiretapping going on as well.

That to me is worthy of investigation.

[Ramo]

Apparently not when considering the precedent set by the appelate court decisions.

The nonsense about "inherent executive powers" in wartime can be easily refuted by Youngstown Co. v. Sawyer (when Truman tried to take over steel mills in Korea to crush a general strike, outside of Congressional authorization).

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

The US Code specifically spells out that wiretapping by the NSA is illegal unless it is authorized by statute:

United States Code Title 50, Chapter 36, Subchapter 1
Section 1809. Criminal 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

The relevant statute must be FISA. I personally believe that FISA grants far too broad powers to the gov't, but Dear Leader did not even recognize its meagre protections for our civil liberties. Note that a member of the FISA court resigned in disgust, and its chief justice refused to allow information gathered in this manner to be used to justify FISA spying.

[Ogie Oglethorpe]

Originally posted by Ramo


The nonsense about "inherent executive powers" in wartime can be easily refuted by Youngstown Co. v. Sawyer (when Truman tried to take over steel mills in Korea to crush a general strike, outside of Congressional authorization).

The discussion of the inherent powers being that of the executive in wartime is a red herring (and yes I know the administration claimed so). The real question is if the president has the inherent powers for specifically foreign intel gathering period, regardless of UAMF authorizations.

The US Code specifically spells out that wiretapping by the NSA is illegal unless it is authorized by statute:

quote:
United States Code Title 50, Chapter 36, Subchapter 1
Section 1809. Criminal 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

The relevant statute must be FISA. I personally believe that FISA grants far too broad powers to the gov't, but Dear Leader did not even recognize its meagre protections for our civil liberties. Note that a member of the FISA court resigned in disgust, and its chief justice refused to allow information gathered in this manner to be used to justify FISA spying.

Yes FISA is the statute for foregin surveillance as described in the Powerline writeup as follows:

One more statute is worth mentioning in the context of the above discussion of FISA: Chapter 19 of Title 18 of the U.S. Code. This is the Electronic Communications Privacy Act of 1986, the basic federal statute that prohibits you and me from wiretapping.

Section 2511 (2) (f) states:

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter or chapter 121 and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted. [Emphasis added.]

Translation

Thus, Congress has made explicit the fact that no federal statute is intended to affect or limit any foreign intelligence gathering that is conducted outside the scope of “electronic surveillance, as defined in [FISA].” In other words, Congress has made no effort to address electronic surveillance that is carried out outside the United States, and does not target specifically identified American persons. This is consistent with Section 2511 (2)(f)’s statement that FISA and the Electronic Communications Privacy Act are the exclusive means by which the government may intercept domestic communications. Except to the very limited extent encompassed by FISA’s definition of “electronic surveillance,” Congress has never purported to address in any way the interception of foreign or international communications.

Now couple that with FISA's own interpretation during the write up of sealed case 02-001 and they have indeed asserted the President (or Dear Leader as you wish to refer to him) does indeed have the inherent authority granted via the constitution to authorize foreign intelligence surveillance (even without warrant or FISA oversight). And again, although sealed case 02-001 judgements are intended to address whether FISA authorized intel surveillance constitutes the legal equivalent of search warrants the decision by the court in that decisions write up goes into specificity talking about the executives authority to authorize unwarrented wiretapping activities for the purpose of foreign intelligence gathering.

For good measure the Appelate courts likewise address the constitutionality issue and likewise take for granted the presidents consitutional authority (war time or otherwise) to electronically conduct foreign inteligence gathering. Regardless of whether you think there are statutory restrictions/violations Constituional provisions being the highest law of the land of course trump statutory law. So until settled by a higher court (i.e the Supreme Court) the Admin is sitting fairly pretty with respect to legal precedent.

The resignation of the FISA justice is merely high drama. Nice theatre that adds nothing to the conversation.

Finally, if and when there are provable instances of domestic to domestic wiretapping activities the Admin has real issues.

[Ramo]

And again, although sealed case 02-001 judgements are intended to address whether FISA authorized intel surveillance constitutes the legal equivalent of search warrants the decision by the court in that decisions write up goes into specificity talking about the executives authority to authorize unwarrented wiretapping activities for the purpose of foreign intelligence gathering.

Because FISA Courts' authorizations are not equivalent to actual warrants, constrained by the 4th Amendment (even if they're typically referred to as "FISA warrants"). That's why you don't necessarily need probable cause to get a FISA "warrant," and why info gained from a FISA "warrant" may not be admissible in a trial.

Yes, you don't need a warrant for foreign surveillance. Hence, FISA.

The simple fact is that again this implies that what Dear Leader did was illegal:

United States Code Title 50, Chapter 36, Subchapter 1
Section 1809. Criminal 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

There is absolutely no statute that justifies what the NSA did. Thus, what they did was illegal.

Regardless of whether you think there are statutory restrictions/violations Constituional provisions being the highest law of the land of course trump statutory law.

I'm curious as to where the Constitution grants the President inherent authority to spy on people in the US without any judicial supervision.

Finally, if and when there are provable instances of domestic to domestic wiretapping activities the Admin has real issues.

Different program, but ask Safire.

[Ogie Oglethorpe]

Originally posted by Ramo


Because FISA Courts' authorizations are not equivalent to actual warrants, constrained by the 4th Amendment (even if they're typically referred to as "FISA warrants"). That's why you don't necessarily need probable cause to get a FISA "warrant," and why info gained from a FISA "warrant" may not be admissible in a trial.

Yes, you don't need a warrant for foreign surveillance. Hence, FISA.

The simple fact is that again this implies that what Dear Leader did was illegal:

United States Code Title 50, Chapter 36, Subchapter 1
Section 1809. Criminal 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

There is absolutely no statute that justifies what the NSA did. Thus, what they did was illegal.

You continue to miss the point.

Where we agree

a) The above staute is meaningless in this instance as it is normally governed by FISA for purposes of foreign intel gathering.

b) FISA warrants are not found to be admissable evidence in criminal investigations.

Where we depart

a) NSA under compulsion of executive order is not necessarily required to comply with FISA standards if the President is truly vested with Constitutional authority to perform these foreign intel operations as congress can not pass a law contradictory with the Constitution.

b) Federal courts (to date only appelate courts have truly weighed in on the matter) interpret such constitutionality issues and have decided as follows:

Case 1 (pre FISA)
This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). In the course of its opinion rejecting defendant’s claim that his conviction was based on information obtained from illegal wiretaps, the court wrote:

The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of obtaining foreign intelligence information is constitutionally permissible [citation omitted], though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment. [citation omitted]

We…discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest.

Case 2 (also Pre FISA)
In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:

In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information.”

Case 3 (likewise Pre FISA)
Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:

Foreign security wiretaps are a recognized exception to the general warrant requirement….

Case 4 (post FISA)
In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:

The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.

The court agreed with the government’s position:

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.

The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.

Case 5 (post FISA)
The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:

Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment.

Case 6 (FISCR)
Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

I'm curious as to where the Constitution grants the President inherent authority to spy on people in the US without any judicial supervision.

It generally is understood to be part of the powers/responsibilities of Article II as his role as commander in chief of Army, Navy, and State militas as intelligence gathering to prevent undo attacks upon the US is considered part and parcel of those responsibilities and recognized as such in the aforementioned appelate rulings. And the point here is not that it is spying perse on US peoples but moreover intelligence gathering on foreign agents that just so happen to be communicating with domestics, at least per Bushs executive order or the 30 or so times he reauthorized it. Now, again, if as part of this executive order there are abuses by the NSA that clearly indicate domestic to domestic intercepts the Bush admin has issues.

Namely:
a) Did the admin knowingly exceed their authority?
b) Did members of the NSA knowingly exceed their authority granted by the executive order?
c) Once a dommestic to dometic intercept ocurred (if it did) who knew and when and what actions were taken accordingly


But most importantly, once again the legality (and yes that really means the constitutional underpinnings of the executive order) is a matter to be settled in federal court. So we go back to the aforementioned precedents already established regardless of what statutory law may or may not exist for other members of government and/or civilians that are not designated to have special roles by the constitution as is the President. (Likewise were the President not bound by the constitution or vested with the responsibilites by the constitution he likwewise would need to comply with the statute.)

All in all the continual mantra I hear is the illegality of the surveillances and how this comprises domestic spying is clearly partisan spin without merit until such time as true illegality via such crimes as domestic to domestic spying instance(s) can be shown.

[Ramo]

You continue to miss the point.

No. You continue to miss the point. 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). Once more, "FISA warrants" are not legally equivalent to traditional warrants.

Once again, the law says that electronic surveillance outside of statutory justification is illegal. One possible statute under which to conduct such surveillance is in FISA (the reason why the Admin is bringing up the AUMF is that they are trying to turn that into a statutory justification). But FISA's civil liberty protections were ignored. Therefore, what Dear Leader did was illegal. QED.

It generally is understood to be part of the powers/responsibilities of Article II as his role as commander in chief of Army, Navy, and State militas as intelligence gathering to prevent undo attacks upon the US is considered part and parcel of those responsibilities

By what line of logic?

and recognized as such in the aforementioned appelate rulings.

Wrong, since FISA warrants are not legally equivalent to the warrants mentioned in the 4th Amendment.

[Ogie Oglethorpe]

What part of Congress can not pass a statute that contradicts the constitution (or interpretation by federal courts thereof) is confusing to you?

The executive by virtue of the constitution has no responsibility to adhere to that statute for the purpose described in the presidential executive order. A statute by the way that is meaningless when it comes specifically to foreign intelligence surveilance which falls under the FISA statutes. Which likewise the executive has no responsibility to adhere to if the FISA statute impedes the executive perogratives laid out by the constitution. The appelate courts have been clear that this is indeed an executive power granted by the constitution via Article II and not limitted by the 4th ammendment for the specific purpose of foreign intelligence gathering both pre and post FISA.

I urge you read in full the powerline post earlier posted in this thread. The AUMF arguement is flawed one by the admin as it is a means to tie the arguement back to a statutory point of order when in fact it need not nor should it come into play as the issue is one of constitutional authority vested to the Prez via Article II and substantiated numerous times via appelate court decisions.

[Ramo]

What part of Congress can not pass a statute that contradicts the constitution (or interpretation by federal courts thereof) is confusing to you?

Once more, it doesn't contradict the Constitution (or the appellate courts interpretation of the Constitution). It does not deny the power of the President to conduct warrantless searches of foreign intelligence. That power is enshrined in FISA.

A statute by the way that is meaningless when it comes specifically to foreign intelligence surveilance which falls under the FISA statutes.

What the hell does that mean? It certainly is not meaningless. The NSA didn't follow FISA, it acted outside of statutory legitimacy.

The appelate courts have been clear that this is indeed an executive power granted by the constitution via Article II and not limitted by the 4th ammendment for the specific purpose of foreign intelligence gathering both pre and post FISA.

Dude, you're not reading what I'm saying. FISA authorizes warrantless electronic surveillance. The issue is that the law says electronic surveillance must be authorized by statute. And the Admin is following no statute.

[Ramo]

I don't know what's confusing you. This is a simple argument.

FISA authorizes warrentless electronic surveillance since FISA "warrants" are not legally equivalent to traditional 4th Amendment type warrants. The US code says that electronic surveillance is illegal without statutory justification. The NSA operated outside of FISA or any other statute. Therefore, what the NSA did was illegal.

This is in no way contradicted by the appelate court decisions since, once again, FISA authorizes warrantless searches. Thus, the President retains this power.

[Ogie Oglethorpe]

Originally posted by Ramo

Dude, you're not reading what I'm saying. FISA authorizes warrantless electronic surveillance. The issue is that the law says electronic surveillance must be authorized by statute. And the Admin is following no statute.

Dude you still don't get it. FISA a stautue passed by Congress can NOT limit the executives constitutional authority.

Again reread the pertinent part of sealed case 02-001 with respect to FISA oversite of electronic surveillance and the presidential authority for warrantless electronic surveillance

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

[bolding added for emphasis]

Translation - FISA is a mechanism for the executive but can not constrain the executive.

[Ogie Oglethorpe]

Originally posted by Ramo

This is in no way contradicted by the appelate court decisions since, once again, FISA authorizes warrantless searches. Thus, the President retains this power.

FISA 'normally' authorizes warrantless searches but this in no way means the executive is compelled to use FISA for that purpose else it would encroach on his ability to authorize foreign intelligence searches.

This is so simple.

FISA and or Title 50 = Congressional statute

Congressional statute can NOT overrule consitutional provisions.

Therefore executive not required to necessarily use FISA or Title 50 (for the purpose of foreign intelligence gathering).

[Ramo]

Again reread the pertinent part of sealed case 02-001 with respect to FISA oversite of electronic surveillance and the presidential authority for warrantless electronic surveillance

You should read that quote again. It says:

"The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the
government’s contention that FISA searches are constitutionally reasonable."

That's the question answered in this decision, not anything else. "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." has absolutely no value in terms of precedent. It's totally irrelevant.

The idea that what the NSA did was illegal is in no way contradicted by the appelate court decisions, which do have value as precedents, since FISA authorizes warrantless searches. The President has authority to conduct electronic surveillance, as long as it is within statutory justification. And it ain't.

[Ramo]

Case 4 (post FISA)
In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:

Incidentally, this case a. was decided on pre-FISA grounds, and b. Truong was a foreign national (not a "US person" that the definition of electronic surveillance is dependent upon).

[Ogie Oglethorpe]

Originally posted by Ramo


That's the question answered in this decision, not anything else. "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." has absolutely no value in terms of precedent. It's totally irrelevant.

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 and is supported ad nauseum by all the other appelate rulings. The effect is the exact same that congressional statue of (which before FISA) Title 50 held sway is not applicable to the executive in this type of instance. Again the precedent in each and everyone of these cases is that Congressional statue can not encroach on constitutionally granted powers of the exectuive.

Whether or not the crux of the ruling (and I have never argued otherwise) was "The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the
government’s contention that FISA searches are constitutionally reasonable." is rather immaterial because the first sentence admits prior to any further discussions on the decision that the President can not have his authority encroached upon by FISA. Moreover the second sentence gives even more force to the previous assertion that it defines FISA as a means to amplify executive powers and curiously enough it never mentions it as the sole means to do so..

The idea that what the NSA did was illegal is in no way contradicted by the appelate court decisions, which do have value as precedents, since FISA authorizes warrantless searches. The President has authority to conduct electronic surveillance, as long as it is within statutory justification. And it ain't.

No FISA acts as one means of mechanism for the government (sans executive directive) to authorize warrantless searches but is not the only means by which the executive needs to do so. Moreover even if FISA prescribed in its own statue that the executive was compelled/required to acquire a FISA 'warrant' that would constitute a congressional limitting of executive powers granted via the constitution and hence would be unconstitutional per the numerous cases mentioned.

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.

[Ogie Oglethorpe]

Originally posted by Ramo


Incidentally, this case a. was decided on pre-FISA grounds, and b. Truong was a foreign national (not a "US person" that the definition of electronic surveillance is dependent upon).

It is generally understood that domestic based foreign nationals have the same protections as a US citizen. Likewise if there were cases of foreign nationals involved in domestic to domestic communiques I would assume the Presidential executive order to be null and void as it was described inthe press as authorizing wiretapping on international communiques.