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FISA JUDGES SAY BUSH WITHIN THE LAW (Why Has the MSM Ignored This Story?)
The Washington Times ^ | 03/29/06 | Brian DeBose

Posted on 03/29/2006 9:28:16 AM PST by MikeA

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To: JennysCool

Operation Swarmer? All I heard about that was the MSM carping that it hadn't resulted in any fighting or any dead terrorists and that it was just "political window-dressing." I actually heard that on a local news broadcast! And of course if it had resulted in massive fighting and lots of deaths, the same news media would be screaming about America's "heavy-handedness" and "alienating Iraqis."


51 posted on 03/29/2006 10:22:34 AM PST by MikeA (Not voting in November because you're pouting is a vote for Democratic Congressional control)
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To: MikeA; All

Because it dose not advance the democrat / MSM cause.

Cause .... DESTROY BUSH



Andrew Card (Whitehouse office manager) resignation is 'bigger' because it's the 'colapse' of the Bush Administration ??????????


52 posted on 03/29/2006 10:24:33 AM PST by IrishMike (Dry Powder is a plus)
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To: AliVeritas

bump


53 posted on 03/29/2006 10:24:59 AM PST by malia (The Democrats .... Retreat and Defeat!! The Media ....no reporting just commentary)
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To: P-40
It sounds like much of the discussion will remain academic...unless someone in Congress really wants to tackle all of the Constitutional issues involved...and I can't see that happening.

It needn't be that way. Congress has lagged behind, just as it did when Clinton entered Aldrich Ames' house without a warrant.

I'm not hung up on having a statute, but the presence of FISA provides a significant measure of predictability to prosecutions. That's a good thing, in my book.

Have you seen my posts that describe the genesis of FISA?

54 posted on 03/29/2006 10:25:04 AM PST by Cboldt
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To: Cboldt

I suspect any issues will relate to "probable cause" as to how the government concluded (in the first place) that the "foreigner" (could be a US citizen overseas, in a global sense) is apt to engage in a conversation that represent a foreign intelligence interest. If it reached that conclusion in the first place based on secret surveillance, the case is a harder one to get past a judge. It resembles "precrime," where any and all surveillance is justified, based on the "successes" where surveillance is the only activity that creates the reasonable suspicion.




But keep in mind so far as we know and the argument by the administration has been made, the use of these warrantless wiretaps were for the purpose of heading off an attack, not to build a criminal case against anyone. I suppose we'll see if that holds up under scrutiny and whether any terror suspects currently in custody were arrested as a result of a wiretap. But so long as these wiretaps were used purely in a national security capacity, then I suppose all these other legal landmines are avoided.


55 posted on 03/29/2006 10:26:12 AM PST by MikeA (Not voting in November because you're pouting is a vote for Democratic Congressional control)
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To: MikeA
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.

According to this quote he's not out of the woods yet.

56 posted on 03/29/2006 10:28:15 AM PST by Rockitz (Follow the money and you'll find the truth.)
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To: Barringer

I also think that given the judges disclaimer ("unfamiliar with the latest NSA program), for DeBose to state that the judges are saying Bush is within law is to read what's not there into what is.




I think the judge was referring to not being familiar with specific cases of wiretapping and why they occured. I think clearly they have been briefed on the nature of the program especially to enable them to testify before the committee. They do not need to know the specifics of the program to comment on its overall legality and constitutionality.


57 posted on 03/29/2006 10:28:19 AM PST by MikeA (Not voting in November because you're pouting is a vote for Democratic Congressional control)
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To: Cboldt
the presence of FISA provides a significant measure of predictability to prosecutions

I generally would prefer the use of the FISA court...but I see some problems that I don't think have been fully addressed just yet. Most notably, if I take my investigation of a suspected terrorist to the court, and that court determines that my evidence does not meet with their approval...the suspect gets notified...and that might not be such a good thing. The 911 Commission Report goes into detail on the FISA application and the laptop...and it is a sad tale indeed.

I'll have to take a look at your FISA court postings.
58 posted on 03/29/2006 10:30:13 AM PST by P-40 (http://www.590klbj.com/forum/index.php?referrerid=1854)
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To: MikeA
But keep in mind so far as we know and the argument by the administration has been made, the use of these warrantless wiretaps were for the purpose of heading off an attack, not to build a criminal case against anyone.

A couple points. First, what "action" is used to head off the attack? Arrest and incarceration? Liquidation? So far, quite a few of the terrorists are in the court system - not saying they should be, but once there, the method of obaining evidence and probable cuase matters.

Second, beware the "ends justify the means" line of argument. Is anything okay, if it's for the purpose of heading off an attack?

But so long as these wiretaps were used purely in a national security capacity, then I suppose all these other legal landmines are avoided.

Instead of "national security," the law uses "foreign intelligence information." The President has total power relating to foreign intelligence. SCOTUS, in the Kieth case, had -really negative- comments about the Presindet justifying surveillance based on "national security."

59 posted on 03/29/2006 10:32:09 AM PST by Cboldt
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To: MikeA

LOL. There are scads of freepers wishing that FISA would have ruled otherwise. The intent to undermine GWB is full throttle here in FR land. I swear it sounds like the DU here at times now.


60 posted on 03/29/2006 10:32:18 AM PST by pissant
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To: MikeA

GREAT Post, thanks MikeA!!!! AP's take on it is different, but Pete Yost wrote it.

"Today: March 29, 2006 at 8:46:10 PST

"Judges Back Court Review of Eavesdropping
By PETE YOST
ASSOCIATED PRESS

WASHINGTON (AP) -

Five federal judges gave a boost Tuesday to legislation that would bring court scrutiny to the Bush administration's domestic spying program.

At a Senate Judiciary Committee hearing chaired by Sen. Arlen Specter, R-Pa., the judges reacted favorably to his proposal that would require the secretive Foreign Intelligence Surveillance Court to conduct regular reviews of the four-year-old program.

The existence of the warrantless surveillance by the National Security Agency was revealed by The New York Times three months ago.

The judges stressed that they were not offering their views on the NSA operation, which they said they knew nothing about.

But they said the Foreign Intelligence Surveillance Court has operated capably for 28 years and is fully able to protect civil liberties and give the administration all the speed and flexibility it needs to execute the war on terror.

The administration contends the president has inherent war powers under the Constitution to order eavesdropping without warrants.

"I am very wary of inherent authority" claimed by presidents, testified U.S. Magistrate Judge Allan Kornblum. "It sounds very much like King George."

Before word of the warrantless surveillance leaked publicly, the Bush administration revealed it to just eight members of Congress and to the presiding judge on the surveillance court.

The hearing Tuesday focused on Specter's bill. A rival approach, drafted by Senate Judiciary Committee member Mike DeWine of Ohio and three other Republicans, would allow the government to conduct warrantless surveillance for up to 45 days before seeking court or congressional approval.

Senate Intelligence Committee Chairman Pat Roberts, R-Kan., expressed interest in handling legislation on the NSA effort. But the Senate Parliamentarian gave Specter jurisdiction over his bill and DeWine's.

Senate Judiciary Committee member Russ Feingold, D-Wis., has urged censure of the president for authorizing the warrantless surveillance.

Under it, the NSA can monitor international calls - when one party is inside the United States - without first getting court approval. The NSA has been conducting the surveillance when calls and e-mails are thought to involve al-Qaida.

The others testifying before Specter's panel were U.S. District Judges Harold Baker of Urbana, Ill.; Stanley Brotman of Camden, N.J.; John Keenan of the southern district of New York City; and William Stafford of Pensacola, Fla.

The careers of all five judges have been steeped in the work of the secret surveillance court.

In an interview about the program with The Associated Press last week, Specter said administration officials want to do "just as they please, for as long as they can get away with it. I think what is going on now without congressional intervention or judicial intervention is just plain wrong."

--





61 posted on 03/29/2006 10:34:07 AM PST by YaYa123
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To: Rockitz

According to this quote he's not out of the woods yet.


To me that's nothing more than a broad caveat, not any comment on actual jeopardy the president could be in.

Based on Gen. Michael Hayden the head of the NSA wiretap program's description of how suspects were targetted, there is no worry in my mind that the administration won't be able to justify the few warrantless taps that occured. Hayden described in pretty solid detail the cautions they took to ensure they were tapping bona fide Al Qaeda suspects and had every reason to believe the few people so tapped constituted threats. These remarks were made to the National Press Club. Read them and see for yourself. It's a fascinating talk. And Hayden really details the cautions taken and the reasons they felt they had probable cause. I think you cannot come away from his speech thinking that they were anything other than convinced that these taps were absolutely necessary and that there was no ill intent in seeking them. Intent is everything under the law. Gen Hayden's comments:

http://www.fas.org/irp/news/2006/01/hayden012306.html


62 posted on 03/29/2006 10:35:27 AM PST by MikeA (Not voting in November because you're pouting is a vote for Democratic Congressional control)
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To: P-40
I generally would prefer the use of the FISA court...but I see some problems that I don't think have been fully addressed just yet.

It's jurisdiction is limited to issuing of warrants according to a rigid formula. I am quite sure there is an area of executive action that is easily within the constitution, and outside of FISA, and in particular point to the 1802 as not including 1801(a)(4) actors in its scope.

if I take my investigation of a suspected terrorist to the court, and that court determines that my evidence does not meet with their approval...the suspect gets notified.

I checked that, and agree that it represents a risk. I don't now how big the risk is in practice. Note too, the notification takes place ONLY if surveillance has taken place - so the risk is an impediment to getting warrants in that 72 hour after the fact window. It isn't a blanket impediment.

I'll have to take a look at your FISA court postings.

http://www.freerepublic.com/focus/f-news/1578052/posts?page=37#37 <- FISA Genesis

63 posted on 03/29/2006 10:38:33 AM PST by Cboldt
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To: Cboldt

A couple points. First, what "action" is used to head off the attack? Arrest and incarceration?




That's just it, under a Congressional authorization of war any attempt to attack the US becomes a national security issue, not simply a criminal matter in civilian courts. Thus there are different legal standards at play. Additionally, an arrest can occur based on the wiretap, but it may not then be admissable in a court of law. Other evidence will be used to build the case such as perhaps bomb making materials, etc.


64 posted on 03/29/2006 10:40:07 AM PST by MikeA (Not voting in November because you're pouting is a vote for Democratic Congressional control)
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To: AliVeritas
Thanks for the ping Ali. I'll wait until it is ALL OVER THE MSM TONIGHT! /sarc.
65 posted on 03/29/2006 10:42:58 AM PST by tiredoflaundry (She left suds in the bucket, And the clothes hangin' out on the line)
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To: Cboldt
It's jurisdiction is limited to issuing of warrants according to a rigid formula.

The "Inherent Powers" area seems to be the biggest headache as well as the various "War Powers" issues. I listened to all of the talk on 50 USC 413b, and of course 413aa and 413bb, and then *I* got a headache.

the notification takes place ONLY if surveillance has taken place

That issue seems to get muddy when you have a possible criminal investigation that you have done some surveillance for and you want to go to the FISA court for an intelligence investigation and the worry is that the court will turn down the intelligence angle but notify based on the criminal angle. Where is the aspirin...
66 posted on 03/29/2006 10:46:27 AM PST by P-40 (http://www.590klbj.com/forum/index.php?referrerid=1854)
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To: YaYa123

In an interview about the program with The Associated Press last week, Specter said administration officials want to do "just as they please, for as long as they can get away with it. I think what is going on now without congressional intervention or judicial intervention is just plain wrong."




Administration officials weren't "doing as they please." They were acting to protect the country Specter, you putz! They weren't out to get their jollies listening in to 2 housewives gossiping about the neighbors, talking about "Desperate Housewives," and commiserating about how "Johnny grows out of his clothes so quickly these days!" They were protecting the country against further attacks on our soil you a--hole! Resign at once if you think protecting the privacy of criminals and terrorists is more important than keeping me and my family alive you disease on the Senate!


67 posted on 03/29/2006 10:47:19 AM PST by MikeA (Not voting in November because you're pouting is a vote for Democratic Congressional control)
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To: P-40

The proper term to use when referring to "The Wall" is "The Gorelick Wall". Please check your style sheet.


68 posted on 03/29/2006 10:47:46 AM PST by MarxSux
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To: AliVeritas; MikeA

Thanks, Ali for the ping.
And thanks, MikeA for the post.
What I read before was the exact opposite of the truth! Much ado from Finestein...nothing about the FISA judges.


69 posted on 03/29/2006 10:48:15 AM PST by meema (I am a Conservative Traditional Republican, NOT an elitist, sexist , cynic or right wing extremist!)
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To: YaYa123

Notice by the way that no where in that AP story are these judges' quotes about the president's wiretapping being legal and constitutional anywhere mentioned. We don't have a free press. We have a propaganda machine that is a wholly owned subsidiary of the Democratic party that is no different than the party line organs Pravada and Tass in the old USSR.


70 posted on 03/29/2006 10:49:57 AM PST by MikeA (Not voting in November because you're pouting is a vote for Democratic Congressional control)
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To: MikeA

But, but, Chuckie Shoomah and Howie Dean insist they have a plan to "eliminate" Bin Laden. You know, eliminate him by not wiretapping him, not saying mean things about him (that would just create more terrorists), not aggressively interrogating Bin Laden's associates (that would be acting like Nazis and torture as per Dick Turbin), and not taking military action to intervene on terrorist sponsoring states (Bush lied people died)!!! You know, the plan to eliminate him by going back to the Clinton standard of just ignoring him and pretending he doesn't exist. In furtherance of that, they will just pretend Bush has violated the law and impeach him. Voila, problem err, I mean Bin Laden eliminated!!!!


71 posted on 03/29/2006 10:55:22 AM PST by FlipWilson
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To: MarxSux
The proper term to use when referring to "The Wall" is "The Gorelick Wall".

My usual terms would violate the posting rules on profanity.

Search the 911 Commission Report (http://www.9-11commission.gov/report/911Report.pdf) using the search term "the wall" and see just how this concept affected intelligence gathering before 911.
72 posted on 03/29/2006 10:55:56 AM PST by P-40 (http://www.590klbj.com/forum/index.php?referrerid=1854)
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To: Barringer

I hope you are getting the feeling that you are being ignored...

3-29-06


73 posted on 03/29/2006 10:56:00 AM PST by meema (I am a Conservative Traditional Republican, NOT an elitist, sexist , cynic or right wing extremist!)
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To: MikeA

I think the House should impeach Feingold for his stupidity...


74 posted on 03/29/2006 10:56:02 AM PST by Toidylop
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To: MikeA

Great article. Thanks for posting it.


75 posted on 03/29/2006 11:00:17 AM PST by Gumlegs
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To: FlipWilson

And of course retreating from Iraq and publishing "draw down timetables," that will finally get Bin Laden!!!

What a joke for Democrats to act like it is Congress' responsibility to run national security and that somehow an act by a bunch of Democratic hacks in the Senate will bring about the capture of killing of Bin Laden. Their "secret plan" if it's so amazingly effective is something they could present to the president now, the proper custodian of US security policy, or even present on the floor of the Senate. If it's so incredibly innovative surely the administration will take them up on it.

This is an astonishing bit of pandering by the Democrats that is shameless even by their standards! They are so desperate to win back power they'll even make pie in the sky promises about "if you put us back in control we'll get Bin Laden!" I hope Americans begin to wake up to the degree to which these Democrats have become slaves to their ridiculous powermongering.


76 posted on 03/29/2006 11:11:25 AM PST by MikeA (Not voting in November because you're pouting is a vote for Democratic Congressional control)
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To: meema

I'm new here...was that a back-handed PING?


77 posted on 03/29/2006 11:13:35 AM PST by Barringer (I'm just sayin...)
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To: MikeA

Bookmarked


78 posted on 03/29/2006 11:51:04 AM PST by chaosagent (Remember, no matter how you slice it, forbidden fruit still tastes the sweetest!)
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To: Howlin

INTERESTING Ping


79 posted on 03/29/2006 11:57:00 AM PST by arasina (So there.)
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To: Cboldt

I have read several posts on many differnent threads where you have deconstructed posted information and then opined on the relevance of that information to the question of constitutional limitations on the Executive Branch.
I read your refutation of assetions made by Byron York about the nature of the Court of Review's rulings in the action known as "Sealed case".

You have postited, if I may encapsulate, that there is no way to judge the constituionality of the Presidents actions in regards to warrantless eavesdropping without knowing all the circumstances relevant to each action. This is not what you said but my take on your position. Is it accurate?

My problem with your analysis of the issue is that you give no benefit-of-the-doubt to the President. If this program is operated as has been described, with prior notification of appropriate congressional committee personnel, with a comprehensive review process that insures some congressional oversight, and with the acknowledgement by the Court of Review to the real limitations of the FISA law on Presidential authority, is'nt it real likely that, absent a far-left-of-center Supreme Court, this program is entirely lawful? And if not, how should Abraham Lincoln and FDR be judged considering their (mis?)use of Article 2?

I know this is a "hypothetical" but I would appreciate an answer.

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?


Freegards,

PresidentFelon


80 posted on 03/29/2006 12:10:02 PM PST by PresidentFelon (Reuters Reporter Adam Entous beats his mother)
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To: MikeA

bump


81 posted on 03/29/2006 12:11:27 PM PST by Skooz (Chastity prays for me, piety sings............Modesty hides my thighs in her wings......)
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To: MikeA

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.


82 posted on 03/29/2006 12:13:06 PM PST by hershey
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To: MikeA
For the same reason that the MSM tries to ignore the fact that Clinton was offerred Osama THREE TIMES by Sudan--and refused to accept him because Slick stated, "that he had committed no crime against the US"!

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?

83 posted on 03/29/2006 12:15:25 PM PST by stockstrader
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To: PresidentFelon
You have postited, if I may encapsulate, that there is no way to judge the constituionality of the Presidents actions in regards to warrantless eavesdropping without knowing all the circumstances relevant to each action. This is not what you said but my take on your position. Is it accurate?

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.

84 posted on 03/29/2006 12:42:18 PM PST by Cboldt
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To: MikeA

Great find, Mike!

Let's keep this one bumped!!! Get it to Rush, Sean and the rest of the crowd!!


85 posted on 03/29/2006 12:43:08 PM PST by freedumb2003 (Don't call them "Illegal Aliens." Call them what they are: CRIMINAL INVADERS!)
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To: PresidentFelon
If this program is operated as has been described, with prior notification of appropriate congressional committee personnel, with a comprehensive review process that insures some congressional oversight, and with the acknowledgement by the Court of Review to the real limitations of the FISA law on Presidential authority, is'nt it real likely that, absent a far-left-of-center Supreme Court, this program is entirely lawful? And if not, how should Abraham Lincoln and FDR be judged considering their (mis?)use of Article 2?

Well said.

86 posted on 03/29/2006 1:05:49 PM PST by b4its2late (There are good terrorists.............. DEAD ONES.)
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To: Cboldt

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


87 posted on 03/29/2006 1:20:13 PM PST by PresidentFelon (Reuters Reporter Adam Entous beats his mother)
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To: MikeA

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!


88 posted on 03/29/2006 1:49:55 PM PST by monkeybrau
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To: PresidentFelon
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.

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.

89 posted on 03/29/2006 2:00:33 PM PST by Cboldt
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To: Cboldt

Thank you sir!


PresidentFelon


90 posted on 03/29/2006 2:03:12 PM PST by PresidentFelon (Reuters Reporter Adam Entous beats his mother)
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To: MikeA

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.


91 posted on 03/29/2006 2:03:30 PM PST by joyspring777
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To: MikeA

pinging Senator Feingold, pinging Senator Feingold !


92 posted on 03/29/2006 2:06:26 PM PST by EDINVA
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To: AliVeritas

Thanks, I hadn't heard this.


93 posted on 03/29/2006 3:44:33 PM PST by Dr. Scarpetta (There's always a reason to choose life.)
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To: PresidentFelon
Here is a case ... I just bumped into it, not equipped to discuss it in any detail, but it has elements that illustrate the concern about "avoiding precrime." This actor was convicted based on his confession, but some actors won't confess.

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.


94 posted on 03/29/2006 6:01:10 PM PST by Cboldt
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To: MikeA
Hey Dems, impeach this! Even the FISA court's judges, to say nothing of their prior rulings, say that Bush was within the law, the constitution and his powers as president in wiretapping your Al Qaeda friends. It's too bad though really. Nutcase Democrats impeaching Bush over doing due dilligence in keeping tabs on Al Qaeda threats within our borders would have paid political dividends to the GOP for a decade.

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!!

95 posted on 03/29/2006 9:20:51 PM PST by p23185
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To: MikeA
Even the FISA court's judges, to say nothing of their prior rulings, say that Bush was within the law, the constitution and his powers as president in wiretapping your Al Qaeda friends.

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

http://media.nationalreview.com/093732.asp


96 posted on 03/30/2006 4:48:52 AM PST by Cboldt
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To: MikeA
Related thread at http://www.freerepublic.com/focus/f-news/1606093/posts
97 posted on 03/30/2006 8:03:51 AM PST by Cboldt
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To: MikeA
This is all good .. and it certainly backs up the contention that what Bush did was Constitutional.

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.

98 posted on 03/30/2006 11:54:39 AM PST by CometBaby (You can twist perceptions .. reality won't budge!)
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To: CometBaby

"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.


99 posted on 03/30/2006 12:01:51 PM PST by MikeA (Not voting in November because you're pouting is a vote for Democratic Congressional control)
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To: MikeA

Bump


100 posted on 04/02/2006 10:01:37 AM PDT by rockrr (Never argue with a man who buys ammo in bulk...)
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