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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

Posted on 01/18/2006 8:10:29 AM PST by Perlstein

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To: Sandy

I sorry, but you're simply in error. The following holdings are just too close on point to leave much room for doubt...

"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."
--United States v. Brown, 484 F.2d 418, 426 (1973)

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."
--U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)

"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."
--United States v. Duggan, 743 F.2d 59 (1984)

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."
--In re Sealed Case, 310, F3d. 717, 742 (2002)

"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."
--In re Sealed Case, 310, F3d. 717, 742 (2002)

So you wish to create a two-tiered system of constitutional powers based upon the false dichotomy of inherent versus explicit powers and undo 200 years of jurisprudence?

Oops, now you're putting words in my mouth, I've never claimed that "numerous appellate courts have already...declared [IFSA] unconstitutional", those are your words, not mine. What I have said, is that leading case on the matter has concluded that "FISA could not encroach on the President’s constitutional power".

I never said that.

Once more, my contention is simply to quote the conclusion of the In re: Sealed Case court when they said "FISA could not encroach on the President’s constitutional power".

Incorrect, I said without some constitutional reason. It would be unconstitutional to remove those funds with the express purpose (your hypothetical) of undermining a constitutional power of the executive branch.

351 posted on 01/23/2006 4:43:53 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
Great, you're getting closer. Now take it one more step and ask yourself how the President could be constitutionally "qualified", yet not be constitutionally "authorized" to conduct warrantless foreign intelligence surveillance.

Actually it's you who needs to take one step closer and explain how simply meeting the qualifications for doing something gives you an unregulable right to do it.

Now compare that to how later courts read and interpreted the words of the Truong court...

If they want to talk about "inherent authority", that's fine, just as long as they don't read into the word "competent" an uncontrollable grant of power. If they do, then they're playing word games. It's that simple.

Let's be clear here, if you wish to argue with the holdings of all these other courts, of course you're free to do so, but then that places your argument on a much different plane, and that plane is not one of trying to inform others what the law is, but rather arguing for what you wish the law to become someday.

So you're of the opinion that judges make law. That puts you at variance with the three most recent nominees to the supreme court (including one who was rejected for not being conservative enough), not to mention the vast majority of posters on this board. Just thought you should know.

The Constitution give no such "power to regulate the government", to the degree that such regulation would pertain to the substantive operations of governmental functions that were granted by the Constitution to other branches of governement. The doctrine you're referring to, Art. I, sec. 8, cl. 18, also known as the "Necessary and Proper" clause...

Nope. Back up four clauses. "To make rules for the government".

If the "foreign intelligence surveillance", is done for the sole purpose of intelligence gathering, then no warrant is needed. But if the "foreign intelligence surveillance" is done for the purposes of criminal prosecution, then a warrant is required.

If the "foreign intelligence surveillance" is done for the purposes of criminal investigation, then it's not "foreign intelligence surveillance", now is it? Hence, the court would have been perfectly justified in saying that warrants for purely foreign intelligence surveillance aren't needed at all, if that's what it intended to say.

Not "who", but rather "what". It is an unconstitutional usurpation of constitutional authority for the President (to conduct warrantless national security intercepts for purposes of a criminal prosecution).

Again with the two-tiered reasoning. He's given the power to prosecute criminal violations of federal law, and he's given the power to look out for national security, yet one of them is more equal than the other, according to you. One of them, you say, doesn't have to be subject to the requirements of the 4th amendment or acts of Congress which Congress is explicitly given power to pass.

inquest: "In fact, law enforcement is a responsibility explicitly assigned to him by the Constitution; foreign policy is not."

So, once again you suggest a two-tiered system of powers

Bull. Quote where I was "suggesting" this. I was just stating a fact, and it's one that can hardly be denied. All you have to do is open the Constitution and read it.

My argument is that the first power should not be treated as being any less sacred than the second, unlike the way you would treat them.

352 posted on 01/23/2006 5:16:52 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: Boot Hill
"FISA could not encroach on the President’s constitutional power".

So what? You're the one claiming that FISA encroaches on the President's authority, not me. Do you see no distinction between Congress's ensuring that the President doesn't act beyond his constitutional authority and Congress's actually encroaching on the President's actual constitutional authority?

Bottom line, the President has no constitutional authority to either abuse or act beyond his constitutional authority. FISA prevents exactly that--Presidential abuse of authority and Presidential actions not Constitutionally authorized. Please, show me one provision in FISA that prevents the President from performing any acts which he is constitutionally authorized to do.

353 posted on 01/23/2006 6:35:58 PM PST by Sandy
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To: inquest

An explanation is unnecessary, when all that is required is to simply note that the Truong court held that the President had the constitutional "qualifications" to conduct foreign intelligence surveillance without a warrant. The "unregulable" part is your fiction, since the court clearly chose to regulate it by discerning between intercepts for made the sole purpose of foreign intelligence gathering, versus those done for purposes of criminal prosecutions.

I'll pass along your advice to the court, I'm sure it will be appreciated.

It's not my opinion, it's the plain fact of the matter, not only that they do make law, but they are constitutionally authorized and duty-bound to do so, and that has been settled law in this country for over 200 years.

To the layman, the term "law" is generally understood to mean "statutes", like those passed by a legislative body. But to a legal professional, that same term encompasses, the Constitution, the statutes as well as the decisions that interpret the Constitution and the statutes.

So using the layman's limited definition, no, a judge may not "make law". But when applying the a real definition of the word "law", it is completely correct to state that judges make law.

Appreciate the heads up. ;-)

Ouch! This is gonna sting a bit, but you've completely mis-read the 14th clause.

I posted it below, so you can note that there is no comma between "government" and "and regulation", meaning that "government and regulation are a single phrase referencing "the land and naval Forces". Clause 14 has nothing to do with "making rules for the government" in the sense of the three co-equal branches of government, it refers only to the military. Note also, the common military related theme in clauses 11-16.

As I said, the relevant clause is the 18th, the "Necessary and Proper" clause...

"To make Rules for the Government and Regulation of the land and naval Forces;"
--U.S. Constitution, Art. I, sec. 8, cl. 14

354 posted on 01/23/2006 6:50:27 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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Incorrect, that quote is not my words, those are the words of the Truong court.

Bottom line then, we are in agreement, as that is precisely what all those court cases held, as for example...

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."
--In re Sealed Case, 310, F3d. 717, 742 (2002)

The separation of powers doctrine forbids Congress from intruding in areas that are exclusively within the authority of the President. And as the above cite clearly reflects, the President does have the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

355 posted on 01/23/2006 7:19:17 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Sandy

Not quite sure how it happened, but #355 was supposed to have been pinged to you.


356 posted on 01/23/2006 7:49:32 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
The "unregulable" part is your fiction, since the court clearly chose to regulate it by discerning between intercepts for made the sole purpose of foreign intelligence gathering, versus those done for purposes of criminal prosecutions.

The former of which, you say is unregulable by Congress, even though the latter constitutes no less a part of the President's granted powers. Thus you're creating the two-tier system of the President's powers that you claim to disdain.

I'll pass along your advice to the court

The advice is to you, in reading their opinions. You're concluding from their opinions that this particular power of the President is untouchable by Congress, when in fact only your "sealed case" makes such a claim, and even then only in dictum.

To the layman, the term "law" is generally understood to mean "statutes", like those passed by a legislative body. But to a legal professional, that same term encompasses, the Constitution, the statutes as well as the decisions that interpret the Constitution and the statutes.

You mean to legal professionals like John Roberts and Sam Alito? I noticed you conveniently amended out the part of my sentence to you where I cited their disagreement with you. De Nile ain't just a river in Egypt.

Clause 14 has nothing to do with "making rules for the government" in the sense of the three co-equal branches of government, it refers only to the military.

Even that being the case, it includes laying down the rules of war. That holds especially true when those rules are designed for the protection of U.S. citizens.

357 posted on 01/23/2006 8:10:55 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: Boot Hill
Sandy: "So what? You're the one claiming that FISA encroaches on the President's authority, not me."

Incorrect, that quote is not my words, those are the words of the Truong court.

The only mentions the Truong decision made of FISA were supportive of FISA. I know you know this, because I pointed that very fact out to you earlier in the thread.

358 posted on 01/23/2006 8:17:25 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: Boot Hill
You're the one claiming that FISA encroaches on the President's authority, not me."
Incorrect

Oh please. Do you or do you not believe that FISA is repugnant to the Constitution?

If you think FISA is constitutional, then why did you (in multiple posts) quote Marbury's "a law repugnant to the Constitution is void"? What exactly was your point with that quote?

If you think FISA is unconstitutional, explain why. Do you think it encroaches on the President's authority or not?

Now, to repeat the questions which you missed in my previous post:

Do you understand the distinction between Congress's ensuring that the President doesn't act beyond his constitutional authority and Congress's actually encroaching on the President's actual constitutional authority?

Can you show me one provision in FISA which prevents the President from performing any acts which he is constitutionally authorized to do?

359 posted on 01/23/2006 8:30:55 PM PST by Sandy
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To: inquest

For the umpteenth time, that is incorrect, the two-tier system of powers that you attempted to introduce, and which I rejected, was a system you constructed on the false dichotomy of inherent versus explicit powers. There is no basis in law for such a system, and there is no comparison between that and what the Truong case held. Please stop beating this dead horse.

No, my conclusions were based upon the court's opinions in all four of the cases I posted. And yes, that particular power of the President's is untouchable by Congress, thanks to the Separation of Powers doctrine.

Your charge is demonstrable false, I quoted the entire sentence. Please show me where any part of your sentence has been, as you say, "conveniently amended out":   "So you're of the opinion that judges make law."

First, you offered no citation to your claim regarding Roberts and Alito, that I could review for context. Second, there is no indication in your claim whether either one was speaking of "law" in a purely legislative sense or a formalistic sense. Therefore, it made no sense to respond to your point.

First, such a remark is not even peripherally related to the topic under discussion. Second, you are dead wrong on thinking that the 14th clause means Congress can "lay down the rules of war". It means no such thing, you're way off the mark.

360 posted on 01/23/2006 10:28:51 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Sandy

LOL, one of the first rules of good debate practice is to never allow your opponent to divert you into addressing unnecessary matters!

All I need offer is just what the In re: Sealed Case court concluded: "FISA could not encroach on the President’s constitutional power".

And what did the court say were the President's constitutional powers? "[T]he President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information".

Go back and take a look. At the time you were having difficulty coming to grips with the maxim that "the Constitution trumps the ordinary acts of Congress". You were supposing that it was two constitutional powers in collision, when in fact, and as the Marbury court explains, it is simply a case of a statute of Congress that came in conflict with the Constitution.

Trust me, it was not that I missed them, it was that they missed the point under discussion. And that point is, whether the President had constitutional authority to conduct warrantless intercepts of foreign intelligence information. And that question has been asked, answered and proven six different ways from Sunday with a resounding YES!

361 posted on 01/23/2006 10:59:41 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Sandy
A post script to my last reply (#361) to you...

IF, as some of the President's opponents have claimed, that FISA does in fact purport to make the warrantless NSA intercepts illegal, then yes, those sections of FISA would be "repugnant to the Constitution", and "encroaching on the President's authority", and an unconstitutional violation of the Separation of Powers doctrine.

But to get there, you've got to be able to ante up that "IF", and to date, no one's been able to do that definitively.

362 posted on 01/23/2006 11:29:45 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
IF, as some of the President's opponents have claimed, that FISA does in fact purport to make the warrantless NSA intercepts illegal, then yes, those sections of FISA would be "repugnant to the Constitution", and "encroaching on the President's authority",

*What* NSA intercepts? You don't know what the NSA is intercepting any more than I know. And you most certainly don't know whether the intercepts are constitutional if you don't even know who or what's being intercepted or where or for what purpose. You're just taking the President at his word and then making assumptions from there.

Anyway, since you don't want to answer my questions, I'll answer them for you. :-)
There is *no* provision in FISA which prevents the President from doing anything which he has Constitutional authority to do. So how the heck can FISA possibly encroach on his authority when the *only* thing FISA prevents is abuse of that authority? Answer: Since FISA only prevents the President from conducting unconstitutional searches, then FISA rather obviously doesn't encroach on the President's authority (since the President has no authority to conduct unconstitutional searches).

In a nutshell: FISA only prevents unconstitutional acts, yet the President claims that FISA is too constraining.

363 posted on 01/24/2006 2:26:50 AM PST by Sandy
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To: Sandy

The intercepts that James Risen disclosed in the infamous NYT article on Dec. 13th and which the President has commented on.

But we do know, the President has said that the NYT disclosures involved national security intercepts of communications between suspected terrorists and U.S. residents.

Of course we don't every fact with certainty, all we can do is work from the public record that is before us. But most importantly we don't jump to the conclusion, without any evidence, that the President must be guilty of doing something wrong because he has made warrantless foreign intelligence intercepts. The courts have been clear about their legality for decades.

Well, since all we have is your opinion that FISA doesn't encroach on the President's authority, I'll guess we'll have to wait on answering your question!

Ooops, presuming something not in evidence again Sandy!

So you keep repeating, with zero evidence to support your opinion.

364 posted on 01/24/2006 2:52:08 AM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
importantly we don't jump to the conclusion, without any evidence, that the President must be guilty of doing something wrong

Absolutely agree with you there. More importantly, when the President gets caught breaking the law, we don't take the President at his word, without any evidence, that his violations of the law were all hunky-dory. Unlike you, I haven't come to a conclusion yet. I'm only telling you that the situation is nowhere near as cut and dried as you seem to believe. I mean, in the first post of yours that I replied to, you were cutting and pasting quotes from cases concerning constitutionally authorized searches. It seemed rather obvious at that point that you weren't aware that FISA intentionally and precisely--from beginning to end--conforms to that case law. And now, a week or so later, you still don't grasp that FISA has never been shown to conflict with the case law.

Anyway, hope you're feeling better. I'm outta this thread.

365 posted on 01/24/2006 4:16:29 AM PST by Sandy
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To: Sandy

What a waste, from the moment you engaged this debate, to this, your supposedly final comments, your replies have been consistently bereft of any quotes, cases, citations, links, authorities or any other supporting material whatsoever to give life to your claims. What you have brought, opinion, and passion, simply can't mask over their lack of substance.

And one more time, you are demonstrable incorrect. Not only are the President's critics claiming he violated FISA (which would put then put the act in conflict with the case law), but we now know that Congress itself was pointedly warned about this very critical flaw even as they were fashioning FISA.

"The current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution."
--Att. Gen. Griffin Bell, in testimony before Congress (1978)

366 posted on 01/24/2006 5:38:02 AM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
your replies have been consistently bereft of any quotes, cases, citations, links, authorities or any other supporting material whatsoever to give life to your claims.

You're the one making the claim that FISA is repugnant to the Constitution, not me. So the onus was on you, not me. Just because the President may claim that FISA encroaches on his powers, that doesn't make it so. You're familiar with Marbury, so you should know darned well that neither the President nor you has the final word on whether a law is unconstitutional. It's the Court's call. Yet, even though Congress intentionally left room for the Supreme Court to strike down or reinterpret the "exclusive means" provision (see H.R. CONF. REP. 95-1720), neither the Supreme Court nor any lower court has ever done so.

I asked you to show me one provision in FISA which prevents the President from performing any acts which he is constitutionally authorized to do. You wouldn't do so. Yet you think I owe *you* a cite?

"The current bill recognizes no inherent power of the President to conduct electronic surveillance, and I want to interpolate here to say that this does not take away the power [of] the President under the Constitution." --Att. Gen. Griffin Bell

Well obviously FISA doesn't recognize an "inherent power of the President to conduct electronic surveillance", because the President only has inherent authority to conduct warrantless foreign intelligence surveillance. And the AG acknowledged that distinction when he said, "[FISA] does not take away the power [of] the President under the Constitution." Meaning, FISA doesn't remove the President's actual inherent authority. Well no kidding, that's what I've been trying to tell you.

367 posted on 01/24/2006 7:46:48 AM PST by Sandy
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To: Sandy

You do realize, don't you, that your statement makes no absolutely no sense? Perhaps you're suggesting a difference between "electronic surveillance" and "foreign intelligence surveillance"?

Then, please, in your own words, just so that we're clear, what in your opinion is precisely the President's actual inherent constitutional authority to conduct intelligence surveillance?

368 posted on 01/24/2006 8:04:01 AM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
For the umpteenth time, that is incorrect, the two-tier system of powers that you attempted to introduce, and which I rejected, was a system you constructed on the false dichotomy of inherent versus explicit powers.

First, it's only in your fevered imagination that I ever "attempted to introduce" any such thing. And second, your posts show that you haven't rejected this false dichotomy. Is the President's power of domestic law enforcement untouchable by Congress - yes or no?

inquest: "You're concluding from their opinions that this particular power of the President is untouchable by Congress, when in fact only your 'sealed case' makes such a claim"

No, my conclusions were based upon the court's opinions in all four of the cases I posted.

I didn't say your own conclusions weren't "based" on all four cases. I said that only one of them actually makes the claim about the untouchability of this particular power of the President by Congress, and only in dictum.

Please show me where any part of your sentence has been, as you say, "conveniently amended out"

The part with the three dots. Just jump back to the post you were responding to to see what was in place of the three dots. Roberts (who was not a rabid extremist at all) said in his opening statement at his hearings, "Judges are like umpires. Umpires don't make the rules; they apply them."

inquest: "Even that being the case, [clause 14] includes laying down the rules of war"

First, such a remark is not even peripherally related to the topic under discussion.

This discussion has nothing to do with warmaking?

Second, you are dead wrong on thinking that the 14th clause means Congress can "lay down the rules of war". It means no such thing, you're way off the mark.

That's right, military matters have nothing to do with war. Good thing we have you to clear these things up for us.

369 posted on 01/24/2006 10:20:05 AM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

Unless you've got something substantive to add to the topic, I'm out of here.


370 posted on 01/24/2006 3:18:32 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
I don't care if you consider this "substantive" or not, but there's no legal justification for your concluding that the President's powers of foreign surveillance are any more sacred under the "Separation of Powers doctrine" than his powers of domestic law enforcement.

I tried several times to get you to address that point, but you sidestepped it or equivocated each time. That itself speaks volumes.

371 posted on 01/24/2006 4:50:17 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

One more time, I am not the author of those "conclusions" you object to, they are the conclusions of multiple appellate courts. And your unsupported opinion that those courts had "no legal justification" for making those conclusions, can not be taken seriously.

372 posted on 01/24/2006 5:59:18 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
inquest: "there's no legal justification for your concluding that the President's powers of foreign surveillance are any more sacred under the 'Separation of Powers doctrine' than his powers of domestic law enforcement."

One more time, I am not the author of those "conclusions" you object to, they are the conclusions of multiple appellate courts.

One more time, only one court that you quoted made such a conclusion about Congress's powers over these exercises of presidential power, and only in dictum. As for the other opinions, it is indeed only your conclusion that they support this view.

And this view is not only unsupported but unsupportable. There's nothing in the Constitution that so much as intimates that some of the President's powers are more sacred than others. Nor is there any such thing in the writings of any of the founders.

373 posted on 01/24/2006 6:25:00 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

Then take your argument up with the appellate courts judges who identified the distinctions you disagree with so vehemently. While I agree with their conclusions, it is not on-point to the topic under discussion, which is the legality of the President conducting warrantless foreign intelligence intercepts.

374 posted on 01/24/2006 7:12:44 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
Then take your argument up with the appellate courts judges who identified the distinctions you disagree with so vehemently.

I'm taking it up with you who's alleged that these courts have done so. Outside of that one piece of dictum from that one opinion at the bottom of #289, all they've established is that foreign surveillance is a power of the President, not that it's any more sacred than any of his other powers.

375 posted on 01/24/2006 7:22:58 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

No thanks, I'm simply not interested in your digression. The topic under discussion is the legality of the President conducting warrantless foreign intelligence intercepts. Do you have something to add to that, or don't you?

376 posted on 01/24/2006 9:22:18 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
The topic under discussion is the legality of the President conducting warrantless foreign intelligence intercepts.

Which is answered by the fact that Congress has the constitutional authority to regulate his behavior in that area. It has every bit as much power to regulate him in that area as in any other area where he's authorized to act, such as domestic law enforcement. And you've provided no evidence that any appellate court has issued any holdings (as opposed to dicta) to the contrary.

377 posted on 01/25/2006 11:04:59 AM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

Article I, section 8, clause 18, provides Congress with only a limited right to regulate the activities of the executive branch. The separation of powers doctrine defines what those limits are, and it prohibits Congress from enacting any regulation that would infringe on a constitutional grant of authority for the executive branch.

Virtually every appellate court to have ruled on this matter have concluded that the President had inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

Therefore, any attempt by Congress to limit the President's constitutional grant of authority would be a violation of the doctrine of the separation of powers, and thus unconstitutional.

That is demonstrably incorrect, since all four cases I cited concluded the President had such inherent constitutional authority. If you continue with this false assertion, you will simply force me into reposting them, your choice.

But aside from that, I've let you slide on your misstatement of what constitutes "dicta" (and the value of dicta in legal arguments), for some time now, but it has come time to call you on your dishonesty.

When the leading case in this matter, In re: Sealed Case, stated...

"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."
...that was NOT dicta. Dicta is "opinions that are extraneous to the line of reasoning that leads to the decision in the case". In the above example, the courts finding was neither opinion, nor extraneous to the line of reasoning that lead to the decision. The court's finding of fact was necessary to assist in answering the question implicitly raised by the appeal as to whether Truong articulated the appropriate constitutional standard.

It is dishonest for you to mislabel those case quotes as dicta, or even for you to suggest that dicta is somehow an improper legal argument, had I used it.

378 posted on 01/25/2006 4:24:51 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
inquest: "[Congress] has every bit as much power to regulate him in that area as in any other area where he's authorized to act, such as domestic law enforcement. And you've provided no evidence that any appellate court has issued any holdings (as opposed to dicta) to the contrary.

That is demonstrably incorrect, since all four cases I cited concluded the President had such inherent constitutional authority.

As you can see above, I didn't say that these courts didn't hold that the President has "inherent constitutional authority". I said that they didn't hold that his "inherent constitutional authority" in one area is any more sacred than in any other.

When the leading case in this matter, In re: Sealed Case, stated... "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." ...that was NOT dicta.

That's not what I said was dictum. I told you already that the dictum was what you highlighted at the bottom of #289. It was not necessary to the resolution of that case, because the court there did not rule against any part of FISA.

379 posted on 01/25/2006 8:18:50 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: Perlstein

Can you say RINO? The great Oz has spoken


380 posted on 01/25/2006 8:22:09 PM PST by WyCoKsRepublican
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To: inquest

Which of course is a non sequitur, since nobody has claimed that the court made such a holding, and since your contention informs no part of a debate over whether the President acted constitutionally in ordering warrantless foreign intelligence intercepts.

Ah, that would be the following case cite. But even as dicta, the court's observation stands as the soundest and most authoritative legal argument yet advanced in this debate and it follows naturally from the court's holding in Marbury, that "a law repugnant to the Constitution is void".

"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."
--In re Sealed Case, 310, F3d. 717, 742 (2002)

381 posted on 01/25/2006 8:58:20 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
inquest: "I said that they didn't hold that his 'inherent constitutional authority' in one area is any more sacred than in any other."

Which of course is a non sequitur, since nobody has claimed that the court made such a holding

So his authority is equally sacred in all areas? That means Congress does not have power to regulate how he enforces the laws domestically?

it follows naturally from the court's holding in Marbury, that "a law repugnant to the Constitution is void".

Not until you establish that it is repugnant to the Constitution it doesn't. And thus far, no court has ever held that any part of FISA is repugnant to the Constitution, or that any law which regulates the exercise of the President's authority (apart from those undermining his authority over his subordinates) is likewise repugnant on the grounds that it violates the "separation-of-powers doctrine".

382 posted on 01/25/2006 9:33:15 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

No, it means your contention informs no part of any debate over whether the President acted constitutionally in ordering warrantless foreign intelligence intercepts.

I don't need to establish anything beyond citing the In re: Sealed Case court's observation that "FISA could not encroach on the President’s constitutional power", and noting that the court's observation stands as the soundest and most authoritative legal argument yet advanced regarding FISA's impact on the President's actions.

383 posted on 01/25/2006 10:07:50 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
No, it means your contention informs no part of any debate over whether the President acted constitutionally in ordering warrantless foreign intelligence intercepts.

Of course it forms the crux of the debate. Congress has regulated the exercise of the President's powers of domestic law enforcement, and these regulations have not been condemned as uncosntitutional. Since they're constitutional, the only way that your contention could be correct is if there's a two-tiered system of the President's powers. Since you've condemned the whole notion of such a two-tiered system, it follows that your contention about Congress's powers over the President is incorrect, by your own standards.

384 posted on 01/25/2006 10:43:06 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

You've tried that lie once before, it didn't work then, and it won't work now.

The topic under discussion is the legality of the President authorizing warrantless foreign intelligence intercepts. Do you have anything constructive to add?

385 posted on 01/26/2006 12:23:15 AM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
inquest: "Since you've condemned the whole notion of such a two-tiered system..."

You've tried that lie once before

Only in your dreams is it a lie. At the bottom of #327, you said, "I've only argued that all constitutional grants of power be equally respected". That was in direct response to an accusation of supporting the notion of a two-tiered system.

Get your story straight before trying to continue with this.

386 posted on 01/26/2006 9:53:23 AM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest
Like I said you lied, the only two-tiered system of powers ever promoted by anyone on this thread has been by you:

The topic under discussion is the legality of the President authorizing warrantless foreign intelligence intercepts. I'm loosing patience with your lies and attempts at digression, either find something constructive to offer to the debate, or go away.

387 posted on 01/26/2006 11:54:10 AM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
the only two-tiered system of powers ever promoted by anyone on this thread has been by you

That's about as much of a lie as been told by anyone on this thread. Quoting your own previous lies to support it doesn't make it any more true.

The topic under discussion is the legality of the President authorizing warrantless foreign intelligence intercepts.

Look, if you don't want to own up to your own contradictory statements that I've pointed out, that's your choice, but you'd have to realize that it's impossible to continue a rational debate as long as you insist on maintaining mutually contradictory positions as if they're both true.

I already summed up where you went wrong on the issue of legality here, and you've had nothing truthful to say in response to it.

388 posted on 01/26/2006 1:16:58 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

The topic under discussion is the legality of the President authorizing warrantless foreign intelligence intercepts. I'm loosing patience with your lies and attempts at digression, either find something constructive to offer to the debate, or go away.


389 posted on 01/26/2006 1:32:46 PM PST by Boot Hill ("...and Joshua went unto him and said: art thou for us, or for our adversaries?")
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To: Boot Hill
You lost.
390 posted on 01/26/2006 1:36:14 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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