Posted on 03/29/2006 9:28:16 AM PST by MikeA
A panel of former Foreign Intelligence Surveillance Court judges yesterday told members of the Senate Judiciary Committee that President Bush did not act illegally when he created by executive order a wiretapping program conducted by the National Security Agency (NSA).
The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.
"If a court refuses a FISA application and there is not sufficient time for the president to go to the court of review, the president can under executive order act unilaterally, which he is doing now," said Judge Allan Kornblum, magistrate judge of the U.S. District Court for the Northern District of Florida and an author of the 1978 FISA Act. "I think that the president would be remiss exercising his constitutional authority by giving all of that power over to a statute."
The judges, however, said Mr. Bush's choice to ignore established law regarding foreign intelligence gathering was made "at his own peril," because ultimately he will have to answer to Congress and the Supreme Court if the surveillance was found not to be in the best interests of national security.
The panel of judges unanimously agreed that the law should have been changed before now to deal with new threats from terrorists and new communications technologies, a point made by Sen. Dianne Feinstein, California Democrat.
"It is confusing that if you take something off of a satellite it is legal, but if you take it off of a wiretap it's not," she said. "We need to include new technology."
(Excerpt) Read more at washingtontimes.com ...
bump
They've discussed this on NPR, very disappointed that Bush is actually acting within the law as he protects our lives. Naturally, they'll drop it as a topic.
The MSM gives that fact minimal, passing mention. Why don't they focus on and highlight THAT one to remind everyone of Clinton's REAL LEGACY--and the mess that he left President Bush to clean up?
Close enough. The principle "we only surveil communications of known or suspected foreign terrorists" implies that all of the communications being intercepted have a reasonable chance of including foreign intelligence information - but the President's defense doesn't outright assert "all of the communications being intercepted have a reasonable chance of including foreign intelligence information."
And even if he did, our system of government is set up so that at some point, the issue is tested by an independent body - Congress or the Courts. In the case of criminal activity, by the Courts.
Answering the 4th amendment question can come about on a case-by-case facts basis, or if he wants more predictability in prosecution, adherence to the principles that avoid a "precrime" or bootstrapping sort of surveillance of US Citizens.
Or, in another alternative, by disposing of cases (people) without resort to courts.
My problem with your analysis of the issue is that you give no benefit-of-the-doubt to the President.
As opposed to those who conclude the operation is constitutional purely out of deference? And I might add, some of these folks would not apply the same deference if the President was a Democrat. I'm just attempting to add a bit of balance - and if you've read my posts, you'll find a number of them that do opine that the program is most likely (but not necessarily) within constitutional parameters.
Again, our system of government depends on checks and balances. I think it is risky to individual freedom to trust any branch. Obviously, I stuck a nerve with you, and it seems you trust the Office of President to run without being checked by another branch.
Certainly, that is your right. And it is mine to shun that degree of trust.
And if not, how should Abraham Lincoln and FDR be judged considering their (mis?)use of Article 2?
Some actions of FDR and Lincoln were ruled to be unconstitutional.
Incidently, how can a President work with a congress that is both predisposed to limit the powers of the Executive Branch, and full of members that don't care about anything but damaging the President as much as possible?
I have an aversion to bullshit arguments, such as "Congress meant to include warrantless wiretapping of Americans who might be terrorist sympathizers, when it passed the AUMF," or "In re: Sealed Case stands for the proposition that the NSA program is constitutional." If the spirit moves me, I'll mount criticism, with more rationale to support my argument than most FReepers take the time and effort to prepare.
Great find, Mike!
Let's keep this one bumped!!! Get it to Rush, Sean and the rest of the crowd!!
Well said.
Thanks for your reply. As you have noted, I do trust this President to do what is lawful. I've seen no evidence to believe he has not done so. I think you would concur that if the Democrats had any evidence that this program is targeting anybody other than those advertised we would know everything about it.
"Obviously, I stuck a nerve with you, and it seems you trust the Office of President to run without being checked by another branch."
This is not what I said though. My question to you contained reference to an ongoing review process.
You did answer my questions though. It appears that Russell feingold is also premature in his calls for censure since he cannot possibly know the circumstances relevant to each action taken by the NSA.
Thanks for the pro-bono opinion.
PresidentFelon
This is a huge deal. The very author's of the fisa legislation agree the President did nothing illegal, and in fact was well within reason to carry out the wiretaps!
Expect huge coverage of this! (not). What's more, is expect idiot demonratic pundits to keep talking about "illegal wiretaps" for months to come!
I agree. Or at least we would have a clear example case.
It appears that Russell feingold is also premature in his calls for censure since he cannot possibly know the circumstances relevant to each action taken by the NSA.
Not just premature, WAY off base. Even if the President's surveillance is outside the 4th amendment, that alone is FAR from enough to justify censure. Presidents often take actions they believe are in the country's best interest, only to have those actions ruled unconstitutional - yet no call for censure or impeachment. See Truman and Steel Seizure and Lincoln's habeas corpus cases for example.
Feingold is so far off base with his call for censure as to be be laughable, as a matter of principle. But the DEMs are void of principle.
My question to you contained reference to an ongoing review process.
Yeah - it was presumptuous of me to pigeonhole you with those who think oversight/review is an impingement on our form of government. Guess I was a bit touchy for being tagged with not giving the benefit of the doubt to President Bush. At any rate, "sorry about that."
And thank you, BTW, for a pleasant and informed exchange. Those are getting to be a rarity around these parts.
Thank you sir!
PresidentFelon
Why has the MSM ignored this story?
What did Bush expect?
Excuse me, if I were him, I would call a press conference at the White House, have the FISA folks there and announce the thing.
Why wait or expect the MSM to do anything?????
If Bush is...hell will freeze over first.
pinging Senator Feingold, pinging Senator Feingold !
Thanks, I hadn't heard this.
Wednesday, March 29, 2006
Bush assassination plotter sentenced to 30 years[JURIST] AP is reporting that Ahmed Omar Abu Ali [JURIST news archive] has been sentenced to 30 years in prison for joining al Qaeda and plotting to assassinate President Bush [PDF indictment]. Abu Ali faced apossible life sentence following his conviction [JURIST report] last November.
Abu Ali's sentencing had been delayed [JURIST report] to give lawyers in the case time to investigate whether evidence against Abu Ali had been obtained through warrantless domestic surveillance [JURIST news archive]. AP has more.
Wednesday, February 22, 2006
Judge orders Abu Ali sentencing delayed for surveillance check[JURIST] A federal judge has granted a request by defense attorneys [JURIST report] that sentencing for Ahmed Omar Abu Ali [JURIST news archive], convicted [JURIST report] in November of last year for joining al Qaeda and conspiring to assassinate President Bush, be delayed until March 9 so that prosecutors have time to file a sworn declaration revealing whether or not evidence used against Abu Ali was gained through warrantless surveillance, the constitutionality of which has been questioned. The 24-year-old former Virginia high school valedictorian claimed at trial that he was tortured [JURIST report] while held in Saudi Arabia after June 2003. Judge Gerald Bruce Lee made his ruling Friday of last week but it only became public Tuesday.
Prosecutors have thusfar denied any knowledge of illegally-obtained evidence, but admit that they do know how investigators put together their case against Abu Ali. He faces a mandatory minimum sentence of 20 years in prison. AP has more.
Doesn't make a bit of difference to those who post on DU and DailyKOS, which is the source of all things political to some Congresscritters. They will still move forward with IMPEACH PAC because they hate GWB and Cheney. That is all the reason they need - they are such morons. Let them try it. It will be the last turn at power for many a decade if they do, so enjoy your moment in the sun should you take the house in '06!!
Not exactly. The Washington Times and NYT versions of the hearings are being compared, and there is some amount of transcript accompanying the comparison.
It turns out the NYT makes a flat false assertion with its "several former judges who served on the panel also voiced skepticism at a Senate hearing about the president's constitutional authority to order wiretapping on Americans without a court order."
The Washington Times article has a couple different statements that don't reconcile perfectly, in general on the ultimate conclusion of whether or not THIS program passes constitutional muster. The judges didn't render an opinion on that point.
I think the Washington Times got it exactly right when it reported this:
The five judges testifying before the committee said they could not speak specifically to the NSA listening program without being briefed on it, but that a Foreign Intelligence Surveillance Act does not override the president's constitutional authority to spy on suspected international agents under executive order.
I've found the following excerpts from the hearing transcript, and each is accompanied by analysis of the respective blog operators: John Hinderaker, Scott Johnson, and Paul Mirengoff of Powerline; Stephen Spruiell of National Review Online; and Tom Maguire of justoneminute. I urge the reader to click through to their articles instead of just perusing the transcript excerpts that they have shared.
Judge Kornblum: Presidential authority to conduct wireless [Sic. Presumably Judge Kornblum meant "warrantless."] surveillance in the United States I believe exists, but it is not the President's job to determine what that authority is. It is the job of the judiciary. *** The President's intelligence authorities come from three brief elements in Article II....As you know, in Article I, Section 8, Congress has enumerated powers as well as the power to legislate all enactments necessary and proper to their specific authorities, and I believe that is what the President has, similar authority to take executive action necessary and proper to carry out his enumerated responsibilities of which today we are only talking about surveillance of Americans. ***Senator Feinstein: Now I want to clear something up. Judge Kornblum spoke about Congress's power to pass laws to allow the President to carry out domestic electronic surveillance, and we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority, are those rules then binding on the President?
Judge Kornblum: No President has ever agreed to that. ***
Senator Feinstein: What do you think as a Judge?
Judge Kornblum: I think--as a Magistrate Judge, not a District Judge, that a President would be remiss in exercising his Constitutional authority to say that, "I surrender all of my power to a statute," and, frankly, I doubt that Congress, in a statute, can take away the President's authority, not his inherent authority, but his necessary and proper authority.
Senator Feinstein: I would like to go down the line if I could. *** Judge Baker?
Judge Baker: No, I do not believe that a President would say that.
Senator Feinstein: No. I am talking about FISA, and is a President bound by the rules and regulations of FISA?
Judge Baker: If it is held constitutional and it is passed, I suppose, just like everyone else, he is under the law too.
***
Senator Feinstein: Judge?
Judge Stafford: Everyone is bound by the law, but I do not believe, with all due respect, that even an act of Congress can limit the President's power under the Necessary and Proper Clause under the Constitution.
***
Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President's constitutional authority. Anybody disagree with that?
[No response.]
Chairman Specter: Everybody agrees with that.
http://powerlineblog.com/archives/013584.php
Magistrate Judge Allan Kornblum: And I'll now just spend a few minutes talking about presidential authority. Again, I'm not talking about the president's program.Presidential authority to conduct wireless surveillance in the United States I believe exists, but it is not the president's job to determine what that authority is. It is the job of the judiciary. Just as the judiciary determines the extent of Congress' authority to legislate, so it determines the executive's authority to carry out his executive responsibilities.
The president's intelligence authorities come from three brief elements in Article II. The executive power is vested exclusively in the president. So is much of the responsibility as commander in chief, as well as his responsibility to conduct foreign affairs. All three are the underpinnings for the president's intelligence authorities.
Most of the authority I see referred to in the press calls it inherent authority. I'm very wary of inherent authority. It sounds like King George. It sounds like the kind of authority that comes to a head of a nation through international law.
As you know, in Article I, Section 8, Congress has enumerated powers, as well as the power to legislate all enactments necessary and proper to their specific authorities. And I believe that's what the president has: similar authority to take executive action necessary and proper to carry out his enumerated responsibilities, of which today we're only talking about surveillance of Americans.
Again, I emphasize that it's the judicial decisions that define the president's authority. These decisions predate the FISA statute. And I was reviewing the FBI and NSA applications for warrantless surveillance.
Those surveillances by law were transferred to the FISA court in 1978, and actually when it began in May of '79. However, the FISA statute has very specific definitions, and there are intelligence activities that fall outside the FISA statute. Those activities went forward and have continued to this day and are still being done under intelligence activities.
There were three orders: President Ford's order, 11905; President Carter's order, 12036; and the current order, 12333 (text here), which was issued by President Reagan in December of '81.
That order has been used by all of the presidents following President Reagan without change. And I was responsible for processing those applications that go to the attorney general based on a delegation of authority.
I've asked the staff to give you a copy of the current executive order, and that's the authority that is being used today to some extent.
The presidential authority that is being used today is being used unilaterally. I think all of the judges agree with me that when the president operates unilaterally, his power is at its lowest ebb, as has been mentioned in judicial decisions.
But when Congress passes a law, such as one authorizing the surveillance program targeting communications networks -- when the Congress does that and the judiciary has a role in overseeing it, well then the executive branch's authority is at its maximum.
What that means is they can do things, I believe, under an amended FISA statute that they cannot do now.
For example, the president's program says that the president reviews it every 45 days. But I would think, if Congress authorized the program and the court oversaw it, that the surveillance programs could run for 90 days.
***
As you know, the Fourth Amendment bars unreasonable searches and seizures, and the term "unreasonable" is the overarching concept.
The substantive requirements of the Fourth Amendment are for probable cause and particularity. The standard of reasonableness applies to both substantive provisions. That is, what is probable cause and what is sufficient particularity are subject to the standard of reasonableness which the Supreme Court has indicated is subject to different standards; that is, the standards under the Fourth Amendment for criminal warrants, for arrest warrants may be different from those necessary for foreign intelligence collection, for counterintelligence investigations.
...The Supreme Court said that the Fourth Amendment was highly flexible and that the standard for criminal -- what they called ordinary crimes, what I would call traditional law enforcement, need not be the same as that for foreign intelligence collection and that different standards for different government purposes are compatible with the Fourth Amendment.
That decision served as the basis for the FISA statute.
http://justoneminute.typepad.com/main/2006/03/good_catch_at_p.html
FEINSTEIN: Thank you very much. Now, I want to clear something up. Judge Kornblum spoke about Congress' power to pass laws to allow the president to carry out domestic electronic surveillance. And we know that FISA is the exclusive means of so doing. Is such a law, that provides both the authority and the rules for carrying out that authority -- are those rules then binding on the president?[U.S. District Judge Allan] KORNBLUM: No president has ever agreed to that.
When the FISA statute was passed in 1978, it was not perfect harmony. The intelligence agencies were very reluctant to get involved in going to court. That reluctance changed over a short period of time, two or three years, when they realized they could do so much more than they'd ever done before without...FEINSTEIN: What do you think, as a judge?
KORNBLUM: I think -- as a magistrate judge, not a district judge -- that a president would be remiss in exercising his constitutional authority to say that, "I surrender all of my power to a statute." And, frankly, I doubt that Congress in a statute can take away the president's authority -- not his inherent authority but his necessary and -- I forget the constitutional -- his necessary and proper authority.
FEINSTEIN: I'd like to go down the line, if I could, Judge, please. Judge Baker?
[U.S. District Judge Harold] BAKER: Well, I'm going to pass to my colleagues, since I answered before. I don't believe a president would surrender his power, either.
FEINSTEIN: So you don't believe a president would be bound by the rules and regulations of a statute. Is that what you're saying?
BAKER: No, I don't believe that. A president...
FEINSTEIN: That's my question.
BAKER: No, I thought you were talking about the decision
FEINSTEIN: No, I'm talking about FISA and is a president bound by the rules and regulations of FISA?
BAKER: If it's held constitutional and it's passed, I suppose he is, like everyone else: He's under the law, too.
FEINSTEIN: Judge?
[U.S. District Judge Stanley] BROTMAN (?): I would feel the same way.
FEINSTEIN: Judge Keenan?
[U.S. District Judge John] KEENAN: Certainly the president is subject to the law. But by the same token, in emergency situations, as happened in the spring of 1861, if you remember -- and we all do -- President Lincoln suspended the writ of habeas corpus and got in a big argument with Chief Justice Taney, but the writ was suspended.
[N.B. Lincoln's actions were ruled unconstitutional in this regard, in the Milligan and Merryman cases]
KEENAN: And some of you probably have read the book late Chief Justice Rehnquist wrote, "All the Laws But One." Because in his inaugural speech -- not his inaugural speech, but his speech on July 4th, 1861, President Lincoln said, essentially, "Should we follow all the laws and have them all broken, because of one?"
FEINSTEIN: Judge?
(UNKNOWN) [probably U.S. District Judge William Stafford]: Senator, everyone is bound by the law, but I don't believe, with all due respect, that even an act of Congress can limit the president's power under the necessary and proper clause under the Constitution.
And it's hard for me to go further on the question that you pose, but I would think that (inaudible) power is defined in the Constitution, and while he's bound to obey the law, I don't believe that the law can change that.FEINSTEIN: So then you all believe that FISA is essentially advisory when it comes to the president.
(UNKNOWN): No.
FEINSTEIN: That's what you're saying.
I don't mean -- my time is up, but this is an important point. If the president isn't bound by it...SPECTER: Excuse me. It was four and a half minutes ago. But pursue the line to finish this question, Senator Feinstein.
FEINSTEIN: I don't understand how a president cannot be bound by a law.
(UNKNOWN): I could amend my answer to saying...
FEINSTEIN: But if he is, then the law is advisory, it seems to me.
(UNKNOWN):* No, if there's an enactment, a statutory enactment, and it's a constitutional enactment, the president ignores it at the president's peril.
* Lichtblau [NYT reporter] attributes this quote to Harold Baker
But we mustn't lose our perspective here. It is certainly not an exhonoration and we cannot conclude that our President has been "cleared of any cloud". It is sworn testimoney, but essentially it is the "opinion" of *former* judges .. it's not a court rulling.
I am confortable that Bush had the Presidential authority under our Constitution, but the law on this is a bit vague and subject to some interpretation. I think their last point was an excellent one .. we need to make this more clear, particularly with reference to new technology.
"It is certainly not an exhonoration and we cannot conclude that our President has been "cleared of any cloud". It is sworn testimoney, but essentially it is the "opinion" of *former* judges .. it's not a court rulling."
That's all true, but neither is there a court case against the president regarding this. This is as close to a court ruling as there will likely ever be on this topic. And being these were FISA judges, former or not, I think there word is as good as anyone's on this, probably better. I stick by my comment that this clears the president, perhaps not in any legal sense, but by any fairness standard it does.
Bump
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