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1. Unpartisan.com Political News and Blog Aggregator writes:

   Terror defendants plan to challenge evidence

   WASHINGTON — Defense attorneys in some of the biggest terrorism cases plan to file legal chall

   Trackback 12/28/2005

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2. Confederate Yankee writes:

   Actually, there are two kinds of warrantless searches, one used in criminal cases, another used in national security cases, as a close reading of available information would tell you.

   It would be nice to have liberal bloggers that could understand such complex notions.

   Comment 12/28/2005

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3. kevin writes:

   CY

   Wow, that’s a nice piece o completely irelevant information. Way to go, mate, I am impressed. You managed to read an entire article with judges and lawyers saying the program may either let guilty terrorists go free or put innocent people in jail and managed to come away form that with the notion that its important to mention the two kinds of warrantless searches. That takes skill.

   Boy I am glad we have conservatyives who can understand such complex notions instead of getting caught up in silly questions of keeping terrorists in jail.
   Becasue, after all

   Comment 12/28/2005

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4. Devil's Advocate writes:

   Kevin,

   That troll is not a conservative in the true sense of the word. He is a wingnut.

   Wingnuts have a fine legal mind when it comes to defend unnecessary wars, torture, rendition, secret prisons, and blatant vioations by their Dear Leader of the law of land and the Constitution.

   They don’t do so well at protecting us against terrorist attacks, as 9/11 painfully proved.

   Comment 12/28/2005

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5. SayUncle writes:

   And DA is moonbat. Moonbats have a fine legal mind when it comes to not addressing the actual point and hurling insults.

   That was fun, let’s play again.

   Comment 12/28/2005

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6. Dawn writes:

   Yes, SU, by all means, please raise the level of discourse in this comment thread :sarcasm:

   Comment 12/28/2005

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7. Confederate Yankee writes:

   Actually, Kevin, the judges and lawyers cited by the NY Times, as long as they remain anonymous and we don’t know what expertise they have, are irrelevant. I have a friend who is a real estate attorney, and a good one at that, but he is out of his depth here, as would be most judges.

   So until we establish who this “experts are” (and of course, the Times won’t tell us) we go with what we know to be facts rather than speculation from faceless, nameless “experts” that might be anything but. We do know that there are different applications of warrantless searches under the law, so yes, I feel comfortable relating that fact over the Times “experts” and their untested, dubious opinions.

   What this NSA executive order matter will boil down to in the end is a separation of powers issue.

   Did Congress have the legal authority to bind the Office of the Presidency in conducting warrantless searches performed for national security reasons, stripping the executive branch of an inherent constitutional power?

   Every President from the dawn of international wire communications over 100 years ago until 1978 assumed this right, and the courts have always deferred to this particular power inherent to the Presidency. This is supported by case law and precedent, and is summed up in the five-page Department of Justice briefing deliver last week. In short, the Department of Justice seems willing to make the case that Bush was well within his constitutional powers. If anything, Congress may have exceeded their constitutional powers in passing FISA.

   Even after passing FISA, Carter himself did not feel strictly bound by it, nor has any President since, from Reagan, to George H. W. Bush, to Clinton, to George W. Bush. They have all asserted (and over the past two weeks, their DoJ attorneys have as well) that the Office of the Presidency has the Constitutional authority to authorize warrantless intercepts of foreign intelligence. This power has been assumed by every president of the modern age before them, dating back, presumably to the Great Eastern’s success in 1866 of laying the first successful transatlantic telegraph cable. From Lincoln, then, through Johnson, Grant, Hayes, Garfield, Arthur, Cleveland, Harrison, Cleveland (again), McKinley, Teddy Roosevelt, and Taft, through Wilson, Harding, Coolidge, Hoover, to FDR and on to Truman, Eisenhower, John Fitzgerald Kennedy, Johnson, Nixon, Ford and into the Carter administration, the Presidency has had the inherent and unchallenged power to conduct warrantless surveillance of foreign powers for national security reasons.

   This is a simple, unassailable fact.

   FISA is a case of Congress infringing upon the inherent power of the executive branch, and if it comes up as a direct constitutional challenge, FISA will most likely be struck down as Congress infringing upon the constitutional authority of the executive branch to perform foreign intelligence functions.

   By creating and using this executive order, Bush merely used a right the executive branch has always maintained. I’m sorry to rain on your parade, but those are the facts.

   Does that raise the level of discourse enough for you, Dawn?

   Comment 12/28/2005

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8. Confederate Yankee writes:

   damn, I hate leaving HTML tags open… sorry about that.

   Comment 12/28/2005

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9. SayUncle writes:

   Yes, SU, by all means, please raise the level of discourse in this comment thread

   Right. I notice you didn’t smack down when someone engages in the same behavior but uses wingnut instead of moonbat.

   Remember, it’s OK to attack the messenger as long as his message isn’t what you like.

   Comment 12/28/2005

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10. kevin writes:

    Uncle

    Yeah, becasue a drive by posting by someone not dealing with the issues and insulting in tone is deserving of being treated with kid gloves. If CY had bothered to do originally what he did in his subsequent posts, then you might have a point. but it is unseemly to whine when rudness is returned with rudness, even if that is not, stricly speaking, the best of ettiquette.

    CY

    What unamned sources? Sreriously did you not notice the names of the laywers and the legal scholars quoted in the article?

    And while you may have a constitutional argument (though your reading of this is both flawed and horribly authoritarian), that is not the issue. The issue is that the Bush Admin did not challange FISA, they simply broke it and tried to keep the breaking of the law secret. No president should be allowed to do that.

    And since he did break the law in secret without bothering to openly challenge it in court, he may very well have allowed innocents to be put in jail and so corrupted evidence agaisnt actual terrorists that, at a minimum, will require time and effort to be spent defending the conviuctions all over again.

    Comment 12/28/2005

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11. SayUncle writes:

    CY never once called anyone a name. The same can’t be said for DA.

    Comment 12/28/2005

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12. kevin writes:

    Yeah, Uncle, cause its not possible to be insulting without calling someone a name …

    Comment 12/28/2005

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13. Confederate Yankee writes:

    The issue is that the Bush Admin did not challange FISA, they simply broke it and tried to keep the breaking of the law secret.

    You don’t comprehend the difference between what some are alledging, and what the facts are, do you? I don’t mean that as an insult, just a statement of fact.

    Bush did not break any laws. The Bush adminstration used FISA courts more than any president in history, but he is not bound to operate by FISA alone. His constitutional authority to collect foreign intelligence supercedes the narrow confines of the FISA court.

    Why is that so difficult to understand?

    Comment 12/28/2005

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14. SayUncle writes:

    CY,

    Are you intimating that anyone can choose not to follow a law because they don’t think it’s right? As far as I know, we’re bound by the laws unless they’re challenged and struck down. And that would include the president.

    Comment 12/28/2005

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15. kevin writes:

    CY

    Because it is nonsense. FISA clearly limited what Bush was and was not allowed to do in terms of wiretapping, and no law superceeded it in this case. You are presenting facts, you are presenting the odd notio that the President has the right to do whatever he wants becasue he says a law restrianing him is uncosntituional.

    If he thought it unconstitutional, then he should have taken steps to have it declared so. But presidents do not getto ignore the law when they feel like it. We do not elect kings.

    Comment 12/28/2005

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16. Confederate Yankee writes:

    Are you intimating that anyone can choose not to follow a law because they don’t think it’s right? As far as I know, we’re bound by the laws unless they’re challenged and struck down. And that would include the president.

    Just anyone, whenever? Of course not.

    But according to the Department of Justice and constitutional law experts (including liberals, such as Cass Sunstein), Bush has full legal authority here. As time goes on and all arguments are heard, that seems to be the prevailing consensus legal opinion.

    FISA clearly limited what Bush was and was not allowed to do in terms of wiretapping, and no law superceeded it in this case.

    Again, you are dead wrong, Kevin.

    FISA applies to a narrowly defined band of conduct in specific instances for specific kinds of warrantless searches. It does not even cover most kinds of legal warrantless searches, nor does it cover most kinds of foreign surveillance. The President’s Constitutional powers are clearly the primary legal doctrine here, and are supported by most credible experts, both right and left.

    Comment 12/28/2005

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17. Confederate Yankee writes:

    And by the way, the whole “King George” thing won’t sell with moderates who see Bush as attacking terrorists, and liberals as defending them.

    You guys are really quite poor at choosing your battles.

    Comment 12/28/2005

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18. SayUncle writes:

    CY, do you have a cite for why FISA would not apply here? I’m curious as I’ve gone back and forth on the issue for a week now.

    Comment 12/28/2005

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19. Sofocleto writes:

    Who really are the 9/11 terrorists?

    Video Evidence of the Twin Towers and Building 7 Collapses and Pentagon strike

    Comment 12/28/2005

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20. Confederate Yankee writes:

    Certainly, SU:

    In the Supreme Court’s 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president’s authority to take such action in response to threats from abroad.

    Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

    In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that “All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence … We take for granted that the president does have that authority.”

    More here.

    In the Hamdi case, the Supreme Court added that the AUMF authorizes the detention of enemy combatants — notwithstanding 18 USC 4001(a), which requires an Act of Congress to support executive detention. In the Court’s view, the AUMF stands as the relevant Act of Congress, authorizing detention. It is therefore reasonable to say that the AUMF, by authorizing the use of “all necessary and appropriate force,” also authorizes surveillance of those associated with Al Qaeda or any other organizations that “planned, authorized, committed, or aided the terrorist attacks” of September 11.

    The reason is that surveillance, including wiretapping, is reasonably believed to be an incident of the use of force. It standardly occurs during war.

    This would grant Bush a section 109 exemption to FISA, meaning he would not have to go before the court for wiretapping authority. read more.

    There is also the Justice Department briefing of last week which summarizes quite a few relevant cases. There are more “goodies” out there, but those are the highlights…

    Comment 12/28/2005

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21. tgirsch writes:

    CY:

    If what you’re arguing is true, then that’s really damn scary. Because it means that the president can do pretty much whatever the fuck he wants, as long as he pretends it has something to do with “national security.” If that doesn’t scare the pants off you, it should.

    Comment 12/28/2005

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22. tgirsch writes:

    CY:

    Also, I think that you and Kevin are talking past each other to a certain extent. At issue here is who gets to decide whether or not FISA is constitutional. Answer: Not the president. So the argument has to be either that Bush broke the law in violating FISA, or that FISA as written doesn’t apply to what Bush did anyway, therefore what he did was allowable irrespective of the constitutionality of FISA. It cannot be that because FISA is (probably) unconstitutional, it can simply be ignored by the executive branch.

    Comment 12/28/2005

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23. kevin writes:

    “But according to the Department of Justice and constitutional law experts (including liberals, such as Cass Sunstein), Bush has full legal authority here. As time goes on and all arguments are heard, that seems to be the prevailing consensus legal opinion.”

    Only in the imaginary world of Rush Limbaugh. Even members of the ultra right wing Federalis society think Biush broke the law:

    [T]he president does have inherent powers, which stem from the Commander-in-Chief Clause of Article II, and the courts have so ruled. The dispute, then, is over the extent of that unilaterial executive authority. And the key Supreme Court opinion that establishes a framework for resolving that dispute is Justice Jackson’s concurrence in Youngstown Sheet & Tube v. Sawyer — the 1952 case denying President Truman’s authority to seize the steel mills. Trauman had argued that a labor strike would irreparably damage national security because steel production was essential to the production of war munitions. But during the debate over the 1947 Taft-Hartley Act, Congress had expressly rejected seizure. Justice Jackson offered the following analysis, which was most recently adopted by the US Court of Appeals for the Second Circuit in holding that the administration could no longer imprison Jose Padilla: First, when the president acts pursuant to an express or implied authorization from Congress, “his authority is at its maximum.” Second, when the president acts in the absence of either a congressional grant or denial of authority, “there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution it is uncertain.” But third, where the president takes measures incompatible with the express or implied will of the Congress–such as the NSA program, which violates an express provision of the FISA statute–”his power is at its lowest.”

    The consensous is that FISA applies, becasue it appies directly to survience undetaken for national security purposes.

    As for your other arguments, I note that you cite a case from 1972, six years before FISA. Therefore, the question had to be answered. The question today is whether or not FISA restricted that power — which it clearly did. As noted by the decisoon quoted above, when Congress speaks, the President is required to obey unless and until a court rules Congress’s orders uconstitutional.

    You mention the 2002 FISA case without mentioning that the court explicitely said that it was not dealing with the question of whether or not the President had such powers:

    The FISA appeals court explicitly says it’s not addressing the issue (”It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority [to conduct warrantless searches]…The question before us is the reverse…”)

    - The FISA appeals court acknowledges the cases it mentions were decided before FISA and didn’t consider the statute (”We reiterate that Truong dealt with a pre-FISA surveillance…it had no occasion to consider the application of the statute…”)

    So, in short, the court said that it found that before FISA the President was held to have the authority, but that it wasn’t going to deal with the question of whether or not FISA had changed that equation.

    As for the AUMF argument, it is bunk:

    1. The administration tried to get language inserted into the AUMF that would have authorized them to take actions “in the United States.” They failed. [Tom Daschle, 12/23/05]

    2. Federal law says that “exclusive means” to conduct electronic surveillance is FISA and Title III (which governs the use of wiretaps by law enforcement). Relying on the AUMF, the administration concedes that neither of those two statutes were used. Federal law says that any surveillance that is not conducted under those two statues is illegal. [18 U.S.C. 2551(2)(f); 50 U.S.C. 1809(a)]

    3. FISA has a limited exception that allows warrantless domestic wiretaps after a war is declared, but it only lasts 15 days. The Bush administration program has been going on for more than four years. [50 U.S.C. 1811]

    So Congress explicilty rejected that interpretation, the law says that FISA applies exclusively and the AUMF does not modify that law, and FISA explicitly deals with a case of war, rendering the argumet that it does not apply in times of war ridiculous.

    Your arguments are based upon wishing that the consesnous said wht you want it to say, a deliberte obfusciation of one case, the implication that a case decided before the FISA law is applicable in a manner that ignores the existanc eof the FISA law, and a legal argument that is not supported by any legal reasoning, OI, textual, or otherwise. Color me unimpressed.

    As for this:
    “And by the way, the whole “King George” thing won’t sell with moderates who see Bush as attacking terrorists, and liberals as defending them.

    You guys are really quite poor at choosing your battles”

    It is not a matter of choosing fight — you fight the fights that need fighting. Defending the constituion is not, as you seem to think it is, a matter of politial expediency. And for what it is worth, th question is whether or not Bush is above the law and the Constitution. I doubt seriously that moderates believe the President can ignore the law at his whim ust becasue their are bad people in this world. This nation is made of sterner stuff than you seem to want to give it credit for.

    Comment 12/28/2005

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24. kevin writes:

    Tom

    No, I think CY is arguing two things: the constitutional question, where I notice he isn’t bothering to try to defend the notion that the president can unilaterally declare something unconstituional, and the notion that FISA does not apply in this situation.

    Comment 12/28/2005

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25. FuzzFlash writes:

    I say, what a frightfully civilised and scholarly exchange between Cy,Kevin and SU. The way I see it, despite Dear Leader appointing himself “War President” in the Manichean battle against the the abstract noun, “terrorism”, as in Vietnam, the USA has not officially declared war against the nation of Iraq. Therefore, Bush has exceeded his Constitutional powers by authorising warrantless spying on mainland USA. The fact that genuine subversives may gain from his illegal actions, highlights Bush’s incompetance as the nation’s chief executive, and boosts the case for impeachment.

    Comment 12/28/2005

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26. N.Sagan writes:

    I accept the president may monitor communications of foriegn powers without a warrant. I also accept the president may NOT monitor the commuications of American citizens without a warrant.

    We have rights, god-given rights, specifically identified in our constitutional documents. Moreover, FISA was a law passed to prevent abuse by the executive branch. It would have if The Bush Administration had been adibed by it.

    Barron’s, The Wall Street Journal, The NYT, The Washigton Times and George Will all think the president really blew this one. So do I.

    Comment 12/29/2005

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27. S.W. Anderson writes:

    “Bush did not break any laws. . . . His constitutional authority to collect foreign intelligence supercedes the narrow confines of the FISA court.

    Why is that so difficult to understand?”

    The whole rigamarole about FISA courts and other such based in statutory law is just so much blowing smoke — obfuscation, if you prefer.

    The nitty gritty is this:

    1. The president is sworn to uphold and defend the Constitution. That, not his self-proclaimed, catchall commander in chief responsibility, is his paramount duty. He doesn’t swear to protect the people or the property of the U.S. He does swear to uphold and defend the Constitution.

    2. The Fourth Amendment didn’t go away because of the 9-11 attacks or because Bush finds it cramps his style. It’s a vital part of our Constitution and even applies to President Lieflong Privileged Character.

    3. Alberto Gonzalez didn’t get to be attorney general because of legal expertise alone. He and his assistant, Moschella, passed the Bush yes-man test with flying colors. Thus, their opinions about this and similar matters are a lot like Monopoly money, only less colorful.

    None of this is difficult. Were Bill Clinton behind such a breach of our fundamental law, CY and others on the right would be having seizures at five-minute intervals over it. And rightly so (no pun intended). If Bush gets past this without impeachment or at least being censured by Congress, it will be because his loyal locksteppers in Congress did what people have been doing for for him all life.

    Comment 12/29/2005

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28. SayUncle » More on FISA writes:

    […] Pretty good discussion over at Lean Left in the comments section about FISA. (once you get past the troll and me calling the troll a troll). My thinking is that Bush really stepped in it this time. FISA is pretty clear regarding wiretaps of communications involving US Persons and that said taps require warrants. Granted, those warrants can, in some circumstances, be obtained after the fact. […]

    Pingback 12/29/2005

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29. Demetrius writes:

    Former President Jimmy Carter said Wednesday major policy changes are needed because the Iraq war has divided the nation “almost as much as Vietnam.”

    “So there's no doubt that our country is in much more danger now from terrorism than it would have been if we would have done what we should have done and stayed in Afghanistan,” he said on the campaign trail with his son, Democratic U.S. Senate nominee Jack Carter.

    The former president said the Bush administration made a “terrible mistake” by invading Iraq and diverting troops from Afghanistan.

    Jack Carter criticized his opponent, Sen. John Ensign, R-Nev., for supporting the Iraq war. Both Carters also said Defense Secretary Donald Rumsfeld should go.

    “I think he's one of the worst secretaries of defense we've ever had,” the former president said of Rumsfeld. “Almost every decision he has made has aggravated his military subordinates and has also proved to be a mistake.”

    Comment 9/28/2006

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