Posted on 01/18/2006 8:10:29 AM PST by Perlstein
Thanks KCB, I appreciate the feedback. Obviously it took two posters to make it happen that way.
Whether pre-FISA or post-FISA, it really doesn't matter, because the principle that the Constitution trumps the ordinary acts of Congress (like FISA), is foundational to our system of government and 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."
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Incorrect, this is not a case of one constitutional provision versus another constitutional provision, as you suggest. This is a case involving the President's constitutional authority versus the authority of a law passed by Congresses. And as the you've seen, the Marbury court long ago held that "a law repugnant to the Constitution is void".
The answer is simple, you'd have the biggest constitutional crisis since the founding of this country. The courts have held innumerable times that the President's Article II powers includes absolute authority over foreign relations and that includes foreign intelligence. While Congress certainly holds the purse strings, any attempt to use those purse strings to undo the Constitutional powers of the President, would only have the gravest of effect on the continuity of our republic.
Apparently I wasn't explicit enough, let me add some more.
It's true, that among the President's affirmative defenses he raises the issue of the AUMF, however, since the constitutional defense is foundational and the paramount legal defense and one which would make all other defenses irrelevant, I choose to argue the constitutional issue exclusively.
Incorrect, that holding by the court does not mean that "FISA doesn't violate the Fourth Amendment", it explicitly means, and was referring to the fact, that the President didn't violate the Fourth Amendment with warrantless (i.e., non-FISA) electronic surveillance to collect foreign intelligence information.
That's demonstrable incorrect, the Truong court was quite explicit about the matter and went to great pains to write in length about "Foreign Intelligence Exception to the Warrant Requirement" [629 F.2d 908, 912].
They first noted the government's argument that "the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs", and the court next included the observation that: "The district court accepted the government's argument that there exists a foreign intelligence exception to the warrant requirement" and finally concluded that: "We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance" [629 F.2d 908, 913].
Whether pre-FISA or post-FISA, it really doesn't matter, because the underlying principle that the Constitution trumps the ordinary acts of Congress (like FISA), is foundational to our system of government and has been settled law in this country for over 200 years [Marbury v. Madison, 5 U.S. 137, 178 (1801)].
If the court's holding is so "specious" as you say, and since we have a government made up of three co-equal branches, for your argument to be rational it must apply in the converse, as well. Please tell me which powers of Congress can the President infringe upon?
Nobody? Not even the Constitution? What do you think CJ John Marshall meant by the following...
"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."
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It sounds as if you'd prefer a two-tiered Constitution, one made up of explicit powers and authorities and a second and subordinate sub-Constitution of inherent powers. The fact is that the courts, as well as common sense, dictate that if the authority is "inherent", then that is no different than if it had been "explicit". And yes, the powers granted the President by the Constitution ARE untouchable by Congress.
But, the President's actions and the Constitution are not one and the same, so we're not talking about the Constitution vs. ordinary acts of Congress. We're talking about actions of the President vs. acts of Congress.
a law repugnant to the Constitution is void
But FISA's not unconstitutional unless the President's argument is correct. I'm just a layman, but even I can spot the glaring flaw in his argument:
By expressly and broadly excepting from its prohibition electronic surveillance undertaken "as authorized by statute," section 109 of FISA permits an exception to the "procedures" of FISA.... The AUMF satisfies section 109's requirement for statutory authorization of electronic surveillance....But that's not true. As stated unambiguously in Section 2511(2)(f) of title 18,
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.In other words, FISA, Chapter 119 of Title 18, and Chapter 121 of Title 18 shall be the exclusive means by which electronic surveillance may be conducted. That's definitive, unless and until the Supreme Court says otherwise.
Now, switching gears somewhat, I have a few questions. When we give money to the executive branch, what sort of strings can we attach? Can we for instance allocate funds to the executive branch with a provision stating "none of these funds can be used to conduct electronic surveillance by any means other than the means spelled out in FISA and Title 18"? Would such a provision be an infringement of the President's inherent authority?
Suppose we want to defund the intelligence agencies altogether, setting things up in such a way that there'd be no money for any type of foreign intelligence surveillance at all. Would we be constitutionally allowed to do that, or would that infringe the President's authority?
"Taking note of" a litigant's argument in no way implies that they agreed with it. Same goes for taking note of an argument made by the court below. As you noted, all it agreed with was the position that the executive branch need not "always" (hardly a sweeping pronouncement, there) obtain a warrant to conduct foreign-intelligence surveillance. It did not base that conclusion on the inherent, allegedly untouchable powers of the President. It based it instead on the practical difficulties involved when a court, which has little to no expertise in foreign-intelligence gathering, tries to second-guess the President's judgment in that arena. The Truong court then explicitly noted that FISA deals with that problem by creating a court that would have the requisite expertise.
It sounds as if you'd prefer a two-tiered Constitution, one made up of explicit powers and authorities and a second and subordinate sub-Constitution of inherent powers.
If anything, it's you who's arguing the converse, which is that implicit powers are of a higher order than explicit powers. After all, how is it that the 4th amendment restricts how the President sees to it that the laws be faithfully executed (an explicitly granted power), but doesn't restrict how he conducts foreign policy (a power not explicitly granted)?
And yes, the powers granted the President by the Constitution ARE untouchable by Congress.
That would have to mean that the Posse Comitatus Act, among others, is unconstitutional, since it undoubtedly interferes with the President's discretion as to how to enforce the laws.
Incorrect, that act of Congress, all by itself, infringed a power the Constitution grants the Presidents, and as Justice John Marshall held over 200 years ago, "a law repugnant to the Constitution is void".
Yet you posted nothing after this to support your argument that the President's constitutional argument is flawed. I've read the DOJ letter you linked to and find the constitutional argument to be very powerful.
Again, until you can overcome the holdings from virtually all appellate courts that have held that the President has the inherent constitutional authority, along with CJ Marshall's holding that "a law repugnant to the Constitution is void", then citing FISA is irrelevant.
Incorrect, since the Constitution trumps the ordinary acts of Congress, what is definitive here are the decisions of virtually all appellate courts that have addressed the matter and have held that the President has constitutional authority to conduct warrantless foreign intelligence intercepts.
Yes, it would be unconstitutional, no court would allow an end run around Marbury by using the ruse of that funding requirement to infringe on the President's constitutionally granted powers.
Asked and answered in #322, if done for the purpose you stated, it would be unconstitutional to infringe on the constitutional powers and duties of the President. Although it boggles the mind trying to imagine the sort of relief that a court might fashion. And that is why I said you'd have a monumental constitutional crisis on your hands.
It is when the court explicitly says they agreed with it, which is exactly what the court did in Truong.
By "allegedly untouchable", are you arguing that the powers granted by the Constitution are only of a transient and temporary nature???
(But on your main point, you are incorrect, they did base their conclusion on the President's constitutional powers. LOL, if it wasn't based on the President's constitutional powers, how else could they possibly conclude that "the Executive Branch need not always obtain a warrant for foreign intelligence surveillance"?)
Please show me where I've argued for any such thing. I've only argued that all constitutional grants of power be equally respected, Congresses, as well as the President's.
Essentially, what you're saying is that we have no choice but to give the President our money and allow him to do whatever he wants with it. Do I have that right?
Incorrect, that holding by the court does not mean that "FISA doesn't violate the Fourth Amendment", it explicitly means, and was referring to the fact, that the President didn't violate the Fourth Amendment with warrantless (i.e., non-FISA) electronic surveillance to collect foreign intelligence information.
You're misunderstanding me (or I'm not being clear). Warrantless surveillance for foreign intelligence purposes don't violate the 4th. That was true both before and after FISA. But "warrantless" doesn't simply mean "non-Fisa". The FISA procedures themselves are warrantless, and those procedures were challenged on 4th Amendment grounds way back when FISA first became law. So when I said, "FISA doesn't violate the Fourth Amendment. No kidding; that's been known for 20 years," I was referring to the early FISA challenges.
My point is, this controversy isn't about the 4th Amendment. At all. It's about the law which Congress wrote--FISA--which spells out warrantless surveillance procedures. The question isn't, "Can the President conduct warrantless surveillance?" The question is, "Can the President conduct warrantless surveillance using any procedure that suits his fancy, or is he required to follow the procedures mandated by law?"
One thing that's a major source of confusion in this whole matter is everybody's misuse of the term "warrantless". FISA authorizes searches without court orders and searches with court orders. Both types of searches are warrantless. A FISA court order (aka "FISA warrant") is not a warrant in the 4th Amendment sense of the word. So when the press (or whoever) says that Bush is conducting warrantless surveillance, that's a misnomer. What they really should be saying is that Bush is conducting warrantless surveillance in a manner contrary to the warrantless surveillance procedures mandated by FISA. I think a lot of people don't realize that FISA provides for nothing but warrantless surveillance. Even if the President goes to the FISA court and gets a court order prior to searching, that's still a warrantless search in the 4th Amendment sense of the word. So it's not the FISA-authorized warrantless searches that have caused this uproar. It's the non-FISA-authorized warrantless searches that are in contention.
Wow, you sure got that wrong! I never said or even suggested any such a thing. That was a terribly disingenuous hyperbole for you to offer. But within the context of the very narrow hypothetical you posted in #316, it would be unconstitutional for Congress to attempt that sort of end run around the Constitution and Marbury, it just wouldn't fly, nor should it ever be allowed to.
I'm afraid it does. If, as the courts have said, the President has the inherent constitutional authority to conduct warrantless foreign intelligence intercepts, thereby exempting the President from the very tough standards of the 4th Amendment, then it follows that the very same Constitutional principles, would also exempt him from the much less stringent standards imposed by FISA. If the 4th Amendment does not impede the President conduct in the instant case, certainly no act of Congress could, either. It would be illogical to conclude otherwise.
For example, that is precisely what the Sealed Case court meant when it concluded that "FISA could not encroach on the President’s constitutional power", meaning that the President was exempt from both the 4th Amendment's warrant requirements, as well as FISA's requirements for a search order, because both infringed on his authority.
Yes, but they are not "order-less", in other words, they require a court order to enable the search. When discussing this case many have taken liberties with the precise language, like when they loosely refer to NSA intercepts as being "wiretaps", which they most clearly are not. In the same way, many, including myself, have loosely spoke of search warrants to include any lawful authorization from a court of law, including search orders. Sorry for any confusion.
As long as you're speaking of foreign intelligence gathering, the answer is, yes, he can use pretty much any procedure. So says the Constitution, and so says the courts.
Again, that is not exactly so, FISA still requires a court order. I think most people that have been following this issue, understand that nuance and the similar (but not identical) legal requirements.
That's the contention which has yet to be proved.
Constitution trumps the ordinary acts of Congress,
Again, the President is not the Constitution, nor are the President's actions the Constitution. The actions may be Constitutional, but they aren't the Constitution. So when you say the Constitution trumps acts of Congress, you're totally sidestepping the point. Do the President's actions trump Congress's actions when Congress and the President are both acting as authorized by the Constitution (Congress under its lawmaking authority, the President under his implied authority)? How does one branch's implied authority trump the other branch's express authority?
it would be unconstitutional to infringe on the constitutional powers and duties of the President [by withholding tax dollars]. Although it boggles the mind trying to imagine the sort of relief that a court might fashion.
I totally disagree with you there. No court would ever grant relief, because We the People are in no way Constitutionally required to give the President whatever funds he claims to need. I really don't think he can just take our money and do whatever he wants with it. My point is, I believe tax dollars can have some strings attached, because it strikes me as absurd that we can remove the money altogether yet not be able to tell him what to do with the money when we do give it him.
There's no "certainly" about it. His actions can violate the law without necessarily violating the Constitution.
"Can the President conduct warrantless surveillance using any procedure that suits his fancy, or is he required to follow the procedures mandated by law?"
As long as you're speaking of foreign intelligence gathering, the answer is, yes, he can use pretty much any procedure. So says the Constitution, and so says the courts.
But the courts don't say so. This issue has yet to be addressed. The case most on point to date is the Youngstown steel seizure case, and the President lost that one.
It is when the court explicitly says they agreed with it, which is exactly what the court did in Truong.
The only thing the Truong court agreed with was what I pointed out, namely that the executive doesn't always have to have a warrant when conducting foreign-intelligence surveillance. It never said it agreed with anything else the court below or the government said about inherent executive powers.
By "allegedly untouchable", are you arguing that the powers granted by the Constitution are only of a transient and temporary nature???
No, my comment had nothing to do with matters of permanence or transiency.
But on your main point, you are incorrect, they did base their conclusion on the President's constitutional powers. LOL, if it wasn't based on the President's constitutional powers, how else could they possibly conclude that "the Executive Branch need not always obtain a warrant for foreign intelligence surveillance"?
I told you how they concluded it. They concluded it based on the practical difficulties inherent in having ordinary courts of law pass judgment on matters of foreign surveillance. Congress passed FISA to remedy those difficulties, as the court approvingly noted.
inquest: "If anything, it's you who's arguing the converse, which is that implicit powers are of a higher order than explicit powers."
Please show me where I've argued for any such thing.
Perhaps I've jumped the gun. Are you saying that the 4th amendment doesn't restrain the executive in how he makes sure that the laws are enforced?
As a wise man once said, "You're entitled to your own opinion, but not your own facts". And the facts here are that the contention has been ably proven by the holding in those numerous appellate court decisions, you derided as "irrelevant".
The President's actions play zero part in determining whether a law enacted by Congress is constitutional. FISA's provisions stand or fall exclusively on their own merit. Nothing the President does, can change that basic fact of law.
The principle of constitutional law elucidated by Justice Marshall over 200 years ago, is controlling irrespective of any "Presidential action" involved, it applies to any enactment by Congress, that infringes upon a power granted the President by the Constitution, and makes such laws null and void. Presidential action is irrelevant to applying this principle.
Why are you arguing this long-settled point of law with me when you should be arguing it with its author, CJ John Marshall? You're entitled to read Marbury any way you want, but you're not entitled to unilaterally change 200 years of settled jurisprudence, because it offends your sense of right and wrong. If you want to campaign to overturn Marbury v. Madison, have at it, just leave me out.
I would have thought that taking you to task for your previous disingenuous hyperbole (post #329) would have been sufficient, but apparently not. To repeat, I neither said, suggested, nor implied that the Constitution "required [the people] to give the President whatever funds he claims to need".
You can't, it would be unconstitutional to do so based on the reasoning you laid out in your previous hypothetical.
I apologize for the multiple posts, I kept getting an incomplete transaction and an "error logged" message. Don't have any idea what's going on.
Bob Barr? Grover Norquist? Wierich(sp)?
We are in trouble.
Incorrect, first, here is the governments argument...
"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."
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And here is what the Truong court said in agreement with those arguments...
"In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance."
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From the above quotes, it is abundantly clear that the court indeed, adopted the governments argument as to the President's constitutional authority to conduct warrantless foreign intelligence intercepts.
Incorrect, as the second of the above quotes from the Truong decision ably demonstrates. They concluded their warrant exception on, among other things, "its constitutional competence", i.e., the President's authority under the Constitution.
Yes, you did. I've never argued that "implicit powers are of a higher order than explicit powers". I've only argued for all constitutional grants of power, whether inherent or explicit, be treated equally, Congresses, as well as the President's.
No, I'm saying that he must respect the requirements of the 4th Amendment, but I'm also saying, as virtually every court that has addressed the issue has also said, that their exists no 4th Amendment warrant requirement for the President in cases involving foreign intelligence intercepts.
Competence is not the same as authority. It bears a much stronger similarity to the other word the court used, "expertise", which it addressed further in Footnote 3. And since the Constitution expressly gives Congress the power to make rules for the government, and even rules governing captures on land and water (a quintessentially executive activity if there ever was one), it's clear enough that the founders considered Congress sufficiently "competent" to provide some oversight in these matters.
inquest: "Are you saying that the 4th amendment doesn't restrain the executive in how he makes sure that the laws are enforced?"
No, I'm saying that he must respect the requirements of the 4th Amendment, but I'm also saying, as virtually every court that has addressed the issue has also said, that their exists no 4th Amendment warrant requirement for the President in cases involving foreign intelligence intercepts.
No warrant requirement? The Truong court said, "We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance." If there were no warrant requirement at all, then surely the court would have left out that word "always".
It came to this conclusion on the basis of the impracticality of this requirement, not the alleged untouchability of the President's powers. As I explained, his powers over domestic law enforcement are no less constitutionally sacred than his powers over foreign policy. Hence, if the courts can exercise oversight of his actions in one area using the 4th amendment, there's no bedrock constitutional principle that says they can never ever do so in the other area. All there are are practical hurdles, which Congress dealt with in creating FISA.
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