Leading Conservatives Call for Extensive Hearings on NSA Surveillance; Checks on Invasive Federal Po

http://releases.usnewswire.com/GetRelease.asp?id=59381 ^ | January 17, 2006 | Patriots to Restore Checks and Balances

[Perlstein]

Leading Conservatives Call for Extensive Hearings on NSA Surveillance; Checks on Invasive Federal Powers Essential

1/17/2006 6:36:00 PM

To: National Desk

Contact: Laura Brinker, 202-715-1540, for Patriots to Restore Checks and Balances, laura.brinker@dittus.com

WASHINGTON, Jan. 17 /U.S. Newswire/ -- Patriots to Restore Checks and Balances (PRCB) today called upon Congress to hold open, substantive oversight hearings examining the President's authorization of the National Security Agency (NSA) to violate domestic surveillance requirements outlined in the Federal Intelligence Surveillance Act (FISA).

Former U.S. Rep. Bob Barr, chairman of PRCB, was joined by fellow conservatives Grover Norquist, president of Americans for Tax Reform (ATR); David Keene, chairman of the American Conservative Union; Paul Weyrich, chairman and CEO of the Free Congress Foundation and Alan Gottlieb, founder of the Second Amendment Foundation, in urging lawmakers to use NSA hearings to establish a solid foundation for restoring much needed constitutional checks and balances to intelligence law.

"When the Patriot Act was passed shortly after 9-11, the federal government was granted expanded access to Americans' private information," said Barr. "However, federal law still clearly states that intelligence agents must have a court order to conduct electronic surveillance of Americans on these shores. Yet the federal government overstepped the protections of the Constitution and the plain language of FISA to eavesdrop on Americans' private communication without any judicial checks and without proof that they are involved in terrorism."

The following can be attributed to PRCB members:

"I believe that our executive branch cannot continue to operate without the checks of the other branches. However, I stand behind the President in encouraging Congress to operate cautiously during the hearings so that sensitive government intelligence is not given to our enemies." -- Paul Weyrich, chairman and CEO, Free Congress Foundation

"Public hearings on this issue are essential to addressing the serious concerns raised by alarming revelations of NSA electronic eavesdropping." -- Grover Norquist, president, Americans for Tax Reform

"The need to reform surveillance laws and practices adopted since 9/11 is more apparent now than ever. No one would deny the government the power it needs to protect us all, but when that power poses a threat to the basic rights that make our nation unique, its exercise must be carefully monitored by Congress and the courts. This is not a partisan issue; it is an issue of safeguarding the fundamental freedoms of all Americans so that future administrations do not interpret our laws in ways that pose constitutional concerns." -- David Keene, chairman, American Conservative Union

"If the law is not reformed, ordinary Americans' personal information could be swept into all-encompassing federal databases encroaching upon every aspect of their private lives. This is of particular concern to gun owners, whose rights guaranteed under the Second Amendment are currently being infringed upon under the Patriot Act's controversial record search provisions." -- Alan Gottlieb, founder, Second Amendment Foundation

Patriots to Restore Checks and Balances is an organization dedicated to protecting Americans' fundamental freedoms guaranteed by the Fourth Amendment and ensuring that all provisions of the Patriot Act are in line with the Constitution. For more information, visit the Web site at http://www.checksbalances.org.

http://www.usnewswire.com/

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/© 2006 U.S. Newswire 202-347-2770/

[M. Dodge Thomas]

By both its bare language as well as intent, the Fourth Amendment is not a guarantee to be fee from "warrantless" searches and seizures..." (list of supporting arguments follows)

One can bullet-point out good counter-arguments to each of those points - numerous legal commentators have done so, and it appears increasingly likely that we will soon get to watch the arguments from both sides presented again at congressional hearings.

I don’t thinks such debate will change many minds though – this debate is really, it seems to me, mostly between those who believe that physical security is the paramount concern, and those who believe that the most important point is that conditions of perfect security are possible only under conditions of perfect tyranny, and are more willing to surrender some security to maintain protections from abuses of governmental power.

IMO such preferences are more matters of temperament than logic, with the logical arguments marshaled after the fact in support of decision made below the level of rational decision, and the best we can hope for in such discussion is that it be conducted civilly, in the recognition that both side can be “right” given that they value the same things differently.

So to the extent I can sway opinion at all, I’d attempt to do so by pointing out under the logic of some of the Administration supporters - and apparently for some members of the Administration as well - there appears to be no limit whatsoever to Presidential power other perhaps that refusal by Congress to appropriate funds to pursue polices with which a majority of it’s members are in disagreement.

And that as in times past Parliaments have been reduce to such methods to control the excess of Kings and Queens possessed of various theories of unlimited executive powers, I suppose we may eventually be reduced to such methods here as well – though we used to have a IMO perfectly good Constitution which was specifically designed to avoid such difficulties before a majority of Amercing were frightened into abandoning it by a handfull of knife welding religious fanatics.

[inquest]

I think each of you might benefit from reviewing the cites in post #289

The only one that pertains to what I'm talking about is at the bottom, where the lower court says it "takes it for granted" that "FISA could not encroach on" the President's power to engage in warrantless searches for foreign-intelligence gathering. That's a pretty bold position to be taking for granted! Basically it would mean that all the President would have to do is say that he's conducting espionage (even on U.S. citizens here in the U.S.) for the purpose of foreign intelligence gathering, and no one could question it.

In any case, though, the court in that case ruled that FISA had in fact been followed, so their pronouncement about whether or not FISA can restrict the President is just dictum. And very ill-considered dictum, at that.

[inquest]

Interesting what a small world it is. I still get a chuckle out of the fact that Karl Rove and Paul Begala were roommates in college.

[darkwing104]

I don't recall anyone here advocating giving the President absolute power. That absurd at best.

In the world of intelligence their are times that persons living in the U.S. (Not all are Americans), innocent or guilty, may get involved in issues concerning National Security. The FISA court was set up to safeguard the process of protecting American from such intrusions.

When someone from within the country calls a known Terrorist in ,let's say, Pakistan planing in setting off a dirty nuke in the sears tower. The nuclear material is coming off a ship from ,let's say, Yeman in a port at Miami. Do you suppose we should ignore that? I would be waiting on the ship, terrorist and the FISA warrant at the same time. If they don't, the folks who didn't want the NSA to do their job, would be calling for the President's head.

My personal belief that terrorist and their facilitators have no rights. Their existence alone is a crime against humanity. Don't give my the "Freedom Fighter" crap, these guys want world domination, not freedom. If we find them here round them up legally, I don't want no lawyer getting them off.

As for the average American, if their is proof that they are being spied and tracked by the intelligence agencies I would call for impeachment myself. In this case I see a lot of people mixing apples & oranges in this situation. I am also weary of precedence that some future President may readily use this technology against political rivals. Right now E.O. 12333 outlaws that but it can be tossed by a future President.

[El Gato]

Careful....you might confuse them and make their heads explode.......

You say that as if it were a Bad Thing.

[MinuteGal]

I was cautioning about Barr and Norquist a long, long time ago. Boy, did I ever get the flak, whew!

Leni

[Boot Hill]

inquest:   "[The In re: Sealed Case court's] pronouncement about whether or not FISA can restrict the President is just dictum. And very ill-considered dictum, at that."

To the contrary, the court's statement that "FISA could not encroach on the President’s constitutional power" is not only not "very ill-considered dictum", but it flows naturally from all the cases that preceded it, that held that the President had inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information. It flows naturally because of the long-established proposition that the Constitution trumps the law (FISA).

[inquest]

To the contrary, the court's statement that "FISA could not encroach on the President’s constitutional power" is not only not "very ill-considered dictum", but it flows naturally from all the cases that preceded it, that held that the President had inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

I smell word games. "Constitutional" can mean not prohibited by the Constitution, or it can mean actually granted by the Constitution. If it's merely not prohibited by the Constitution, then there's nothing saying Congress can't regulate it (or prohibit it).

It flows naturally because of the long-established proposition that the Constitution trumps the law

Only when they conflict. You wouldn't be assuming the very point in dispute, would you?

[Eva]

Interesting. I think the link between Norquist and Abramoff may explaine a lot. They would both do anything for money. I noticed in one of the articles that Norquist was linked to Abdurahman Alamoudi. Alamoudi is the same Arab family that Joe Wilson is tied to.

[Antoninus]

Boob Barr and Grover Nordquist are leading nobodies.

[Boot Hill]

inquest:  " 'Constitutional' can mean not prohibited by the Constitution, or it can mean actually granted by the Constitution."

The cases I cited made it abundantly clear that the courts were speaking of the President's "inherent constitutional authority", in others words, a power granted by the Constitution, and therefore s power that may not be infringed upon by Congress.

inquest:   "You wouldn't be assuming the very point in dispute, would you?"

I'm only assuming that the court meant what it said when it held that the President did have inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information. And since, as the court held, this was a constitutional power of the President, it can't be infringed upon by Congress.

[Binghamton_native]

The usual suspects.

[Binghamton_native]

My understanding is that these are NOT wiretaps (as was done for example in past years against Mafia figures, etc). It is instead surveilance of electronic conversations in the ether.

[Sandy]

Why do so many people keep posting the same irrelevant quotes over and over?

Do you realize that the first two cases you quoted are pre-FISA? Meaning they're way beside the point.

The third case mentioned merely decides that FISA is Constitutional. FISA of course is the law which Bush claims authority to ignore, so a case dealing with FISA's constitutionality in no way addresses the real issue -- whether the President is free to ignore the supposedly Constitutional law.

Finally, the last case you quoted only goes to show the absurdity of the administration's defense. I mean, the President claims that the AUMF rendered FISA a nullity. So why then did he push to get FISA amended 5 weeks after he was supposedly authorized to ignore FISA altogether? And don't you see the irony in his going to court to defend the post-911 FISA changes? Remember, this is the law which he claims he doesn't have to follow. Why would he care what the court had to say when he was free to ignore them anyway?

Essentially, not one of those cases you quoted addresses the real question. Can the President constitutionally conduct surveillance which is explicitly forbidden by statute?

[Boot Hill]

Sandy:   "Why do so many people keep posting the same irrelevant quotes over and over? Do you realize that the first two cases you quoted are pre-FISA? Meaning they're way beside the point."

They keep posting those case cites because they are exactly on point! You see, it doesn't matter whether the case is pre-FISA or post-FISA, the constitutional principle remains the same: If the President's authority emanates from a grant in the Constitution, then that trumps Congresses law (like FISA). And that is precisely what the courts have held, "the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information". The Constitution trumps FISA.

Sandy:   "The third case mentioned merely decides that FISA is Constitutional."

Incorrect, in Duggan the court held that the narrow areas of FISA they were asked to review, were constitutional, not the whole act. Moreover, and as the court stated, "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". And the Constitution trumps FISA.

Sandy:   "the President claims that the AUMF rendered FISA a nullity."

The President raised a number of affirmative defenses, including both the issue of the AUMF, as well as asserting powers granted him under Article II of the Constitution.

Sandy:   "he was supposedly authorized to ignore FISA altogether...Remember, this is the law which he claims he doesn't have to follow."

Now you're making things up. The President has never said that he could ignore FISA altogether or that FISA, in general, is a law that "he doesn't have to follow". The President's position is narrowly drawn in regards to his Presidential authority and FISA, and he has only construed it as he did for cases of foreign intelligence intercepts.

Sandy:   "Why would he care what the court had to say when he was free to ignore them anyway?"

Again, you are making things up. Contrary to what your statement suggests, the President has ignored no review court holding regarding foreign intelligence intercepts. Furthermore, no review court has ever held that the President is required to use the provisions of FISA to obtain a warrant for foreign intelligence intercepts. Virtually every review court that has ruled on the matter, recognized the President's inherent constitutional authority to conduct warrantless foreign intelligence intercepts. The Constitution trumps FISA.

Sandy:   "Essentially, not one of those cases you quoted addresses the real question."

Funny, in a strange way that is a true statement, it isn't just "one" case, but all of them. And there are many more that, for sake of brevity, I haven't posted here.

[Sandy]

If the President's authority emanates from a grant in the Constitution, then that trumps Congresses law (like FISA).

But Congress's law-making authority also arises from the Constitution. Plus, Congress's authority is explicit, not merely implied like the President's "inherent" power is implied. There is no trump here. The two powers collide head-on.

"the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information".

Well yeah, absent FISA, he has that authority. But FISA's not absent anymore.

The Constitution trumps FISA.

Rephrased, you're simply re-stating your earlier assertion that the President's implicit constitutional power trumps Congress's explicit constitutional power. Again, there is no trump. This matter is far from a slam dunk for either Congress or the President. We could remove funding and get rid of the intelligence agencies tomorrow if we really wanted to. Where would the President's inherent power be then?

"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".

Meaning FISA doesn't violate the Fourth Amendment. No kidding; that's been known for 20 years. The whole point of FISA is to provide the legal means under which warrantless surveillence is to be conducted. The entire statute sidesteps the Warrant Clause's requirements; that's FISA's whole purpose. So saying that FISA doesn't violate the Fourth is saying nothing new or significant at all.

The issue regards separation of powers, not the 4th Amendment.

The President raised a number of affirmative defenses, including both the issue of the AUMF, as well as asserting powers granted him under Article II of the Constitution.

Which is what I've been talking about, btw.

He claims that the AUMF "clearly and unmistakably" authorizes searches outside the FISA framework, but the authority is neither clear nor explicit; it's implied.

He has the Youngstown (steel seizure case) analysis completely backward, claiming his "authority is at its maximum" when it's actually at its "lowest ebb". ("When a president takes measures incompatible with the express or implied will of congress, his power is at the lowest ebb, for then he can rely only upon his own constitutional power minus any Constitutional power of Congress over the matter." Youngstown Sheet And Tube Co. v. Sawyer, 343 u.s. 579, 637 (1952).)

And his analysis of the phrase "shall be the as exclusive means by which electronic surveillance... may be conducted" is completely opposite of what Congress intended when FISA was passed.

The President has never said that he could ignore FISA altogether or that FISA, in general, is a law that "he doesn't have to follow".

That's what his argument boils down to, though. He's saying that the AUMF means he's not bound by FISA, that he can conduct surveillance outside the FISA framework as long as we're at war. FISA is thus rendered a nullity. Why would (or why should) the President abide by FISA if he doesn't legally have to?

The President's position is narrowly drawn in regards to his Presidential authority and FISA, and he has only construed it as he did for cases of foreign intelligence intercepts.

All of FISA is about foreign intelligence surveillance, and FISA is what the President claims authority to bypass. That's hardly narrow, if you ask me.

Furthermore, no review court has ever held that the President is required to use the provisions of FISA to obtain a warrant for foreign intelligence intercepts.

Nor has any court ever held that the President isn't required to follow FISA's provisions. So far, the question has not been addressed.

Virtually every review court that has ruled on the matter, recognized the President's inherent constitutional authority to conduct warrantless foreign intelligence intercepts.

But that only addresses the 4th Amendment question, which is already a settled matter. Separation of Powers is the question that's still up in the air, and the answer is anything but obvious.

P.S. It's way past my bedtime. No more replies from me until tomorrow.

[Boot Hill]

Sandy:   "But Congress's law-making authority also arises from the Constitution...The two powers collide head-on."

Incorrect, the principle that the Constitution trumps the ordinary acts of Congress, like FISA, has been settled law in this country for over 200 years.

"Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument."

--Marbury v. Madison, 5 U.S. 137, 178 (1801)

Sandy:   "It's way past my bedtime. No more replies from me until tomorrow."

Fever >102º, difficult to compose responses. Later.

[KC Burke]

The series of exchanges you two have above is an OUTSTANDING example of what makes FreeRepublic the best conservative site on the internet. Your detailed, and strong arguements have been presented without resorting to personal attacks, and even as the differences have been sharpened down, you have noted why debate is pausing in a manner showing general courtesy to the other and to posters following your exchange.

You are to be congratulated and I ping Jim because while he has to deal with all those who forget the posting guidelines, he may often lack the time to see such a fine example of disagreement and debate in what focuses in on great principle.

Again, thanks.

[KC Burke]

Be sure to read the series of points as raised by Sandy and Boot Hill as it makes an outstanding series of points on the issues valued by conservatives.

[inquest]

The cases I cited made it abundantly clear that the courts were speaking of the President's "inherent constitutional authority", in others words, a power granted by the Constitution, and therefore s power that may not be infringed upon by Congress.

Actually, Truong did not speak of that. That was purely the invention of the court you quoted at the bottom. Truong (a case arising out of a pre-FISA action but decided after FISA was passed) was decided on the much narrower ground that ordinary courts lack the expertise to judge whether or not the probable-cause standard has been met in cases involving foreign surveillance. But it explicitly noted in Footnote 3 that FISA "will encourage the development of foreign intelligence expertise among these seven judges by empowering them to hear all foreign intelligence warrant requests." Thus satisfying the concerns they made in the case they were deciding.

This whole business of saying that the President has "inherent" powers that not even Congress can infringe on is completely specious. The Constitution gives the President not only explicit power but an explicit command to see to it that the laws are enforced, yet no one seriously disputes that Congress can regulate how this is done. And yet we're asked to believe, even "take it for granted", that powers that aren't explicitly granted to him by that document are somehow completely untouchable by Congress.