What a surprise. A memo supporting the White House and it's 'we can't talk about it. Doing so would alert our foes they are being watched' surveillance policies.

The breathless first paragraph at Rawstory.com mentions the 'Bush Justice Department'.

Interesting. Other administrations have relied on the United States Department of Justice.

Privatization?

Spoken like a man who has no experience in military intelligence and what it has been doing for the last twenty-eight years (since FISA), Arthur.

You continue to amaze me with your total ignorance, Artie. You really need to read the document itself, I believe. Of course, you surely would not wish to be swayed by the facts, would you.

As for the reference to the 'Bush Justice Department,' people have been making references like that with the president's name attached as long as there has been a U.S. Department of Justice.

You continue to look for any excuse to downplay what is really happening, and I am sure that you will do the same thing when the SCOTUS also rules in favor of Bush's actions.

You and Fat Bastard are both from the same pathetic mold.

Retired Spy wrote:

You and Fat Bastard are both from the same pathetic mold.

Coming from you superannuated provocateur I'll consider that a compliment.

You have not read the total document yet, have you, Artie? Just like you have not read the FISA document or USC 18, 798. You just google your way through Democratic Party and leftie BLOG talking points without analysis.

You are no more than a gadfly and a total nuisance, because you refuse to examine and evaluate fact and legal precedent.

There's no hope for you at all.

I haven't spent time learning how a microprocessor works either. Nor an automobile nor colonoscope.

I'm not a lawyer RS. And lawyers will wrangle and settle the matter. It's possible that, contrary to your wisful thinking, the congressional authorization of Sept. 14 2001 may not be quite enough for the administration to base its case on.

Bear in mind that this expansion of the executive branch, and expansion it is, would not be nearly so palatable to you if the executive were a Democrat. And bear in mind, Diebold notwithstanding, a Democrat will assume the White House again one day and when that happens it will be very interesting to read the posts here.

Arthur, if contrary to your thinking and desires, the courts find for the president, will you accept that he has been acting within his executive powers and in the best interest of our nation? Will you view him and his administration in a less hateful light?

I doubt that Artie will answer that one in the affirmative, Old Soldier, but I will surely answer his question. Considering exactly the same circumstances with a Democrat as president I will support his/her decision exactly the same.

As I see it, there should not be the double standard on this issue that the Democrats are promoting. I also believe that Clinton was justified when he authorized warrantless wiretaps and physical searches of Aldrich Ames' home. There was just cause then, and there is just cause now.

The Democrats like to plaster over the real issue with the Clinton investigation and impeachment by referring to it as solely a sexual affair with a fat lady. His impeachment and the ABA's pulling of his license to practice law was because he lied under oath - not because Monica gave him a BJ.

No, I doubt that Artie will accept anything from anyone. To paraphrase Colonel Jessep in A Few Good Men, Artie can't handle the truth.

I am not a lawyer either, Artie. I do have a brain, however, and I can read and evaluate and analyze facts and legal precedent and the tenets of the law.

You have run out of lame excuses, Artie. It's time to act like a Man.

Extra testosterone in your grape nuts this morning RS?

After all these years you still want to drag up President Clinton? Give it a break.

While anything outside the WSJ editorial page may be too far to the left for this crowd this is interesting.

The last paragraph in particular is quite revealing. Isn't just radlibs concerned about Mr. Bush and his policies.

December 22, 2005 WSJ Online Edition:

WASHINGTON -- President Bush's claim that he has a legal right to eavesdrop on some U.S. citizens without court approval has widened an ideological gap within his party.

On one side is the national-security camp, made even more numerous by loyalty to a wartime president. On the other are the small-government civil libertarians who have long held a privileged place within the Republican Party but whose ranks have ebbed since the 2001 terrorist attacks.

The surveillance furor, at least among some conservatives, also has heightened worries that the party is straying from many of its core principles the longer it remains in control of both the White House and Congress.
QUESTION OF THE DAY

[question of the day]
Vote: Would you feel more vulnerable to terrorism if the Patriot Act expires?

Conservatives have knocked heads in recent months over the administration's detainment and treatment of terrorist suspects, and as recently as yesterday over provisions of the Patriot Act. Strains also have grown among conservatives over government spending and whether to loosen U.S. immigration rules.

But the current debate over using the National Security Agency for domestic surveillance -- which the administration has defended as legal and necessary -- hit a rawer nerve because it pits national-security concerns against a core constitutional right, in this case, the Fourth Amendment right against unreasonable searches and seizures.

"It seems to me that if you're the president, you have to proceed with great caution when you do anything that flies in the face of the Constitution," said Warren Rudman, a former Republican senator from New Hampshire who has served on a number of government intelligence advisory boards. He calls the administration's surveillance program "a matter of grave concern."

Since 1978, Congress has required the executive branch to seek warrants through a secret federal court for domestic eavesdropping on foreigners or U.S. citizens suspected of terrorism or espionage. Such permission is all but automatic and usually is granted within hours. The court granted warrants at the rate of almost five a day last year -- and rejected none.

President Bush and his top aides argued this week that they were on solid legal ground in ordering -- without going through the secret court -- large-scale eavesdropping of communications between the U.S. and other countries to thwart potential terrorist attacks. They claim they had the authority to conduct the spying under the president's powers as commander in chief, as well as under a congressional resolution that approved the use of force in Afghanistan in 2001.

Yet some prominent conservatives reject that argument. Some even have accused the administration of treading on the Constitution and stretching the prerogatives of the presidency to the detriment of balanced government.

David Keene, chairman of the American Conservative Union, described the spy program as a case of "presidential overreaching" that he said most Americans would reject. Columnist George Will wrote in a Washington Post opinion piece that "conservatives' wholesome wariness of presidential power has been a casualty of conservative presidents winning seven of the past 10 elections."

Bob Barr, a Georgia conservative who was one of the Republican Party's loudest opponents of government snooping until he left Congress in 2003, says the furor should stand as a test of Republicans' willingness to call their president to task. "This is just such an egregious violation of the electronic surveillance laws," Mr. Barr says.

Sen. Arlen Specter, the Pennsylvania Republican who chairs the Judiciary Committee, has called the program "inappropriate" and promised to hold hearings early next year. Republicans joining him include centrist Sens. Chuck Hagel of Nebraska and John Sununu of New Hampshire, along with limited-government types like Larry Craig of Idaho.

The three, along with Sen. Olympia Snowe of Maine, have sided with Democrats in the Patriot Act fight, citing concerns the government is running rough-shod over civil liberties in the name of the war on terrorism. Without Senate approval by Dec. 31, a bulk of the law's key provisions would expire. Negotiations over a compromise continued yesterday.

Some other top Republicans have defended the president's right to conduct surveillance outside congressionally mandated rules. Sen. Trent Lott of Mississippi summarized the argument: "I want my security first," he told reporters when news of the program broke last week. "I will deal with all the details after that."

Prominent neoconservatives William Kristol and Gary Schmitt opined earlier this week that the president has the authority to collect foreign intelligence "as he sees fit," even within the U.S. And no matter how much people might wish it, they wrote, "Congress cannot legislate for every contingency."

Vice President Dick Cheney portrayed the dispute as one entirely about presidential power. "I believe in a strong, robust executive authority, and I think that the world we live in demands it," he told reporters while traveling abroad on Tuesday.

Some conservative critics contend that the fault lines within the party are easy to trace. As with so much else, they say, the trail leads to Iraq.

"From the beginning, the folks who thought it was a good idea to go into Iraq have found good reason to think that all other Bush policies, from torture to domestic surveillance, are justified," said Robert Levy, a conservative legal scholar at the libertarian Cato Institute. "This is just one in a litany of ongoing events that have separated the noninterventionist wing of the Republican Party from the neocon wing."

Why am I not surprised at Artie's contribution? As always, it totally lacks any original thought from Artie himself. The whole submission is a quote from the WSJ, except for the testosterone in the Grape Nuts bit.

By the way, boneheaded one, I was supporting Clinton's actions against Aldrich Ames. I see you continue to have problems with reading comprehension.

Better visit that Sylvan Learning Center soon, Artie ...

Arthur, do you suppose the author of the WSJ editorial would write the same thing today after reading the DOJ paper?

As for a few Republicans that voiced concerns, perhaps they didn't have all the facts and commented too soon? Like many a politician is given to doing. Do you agree with Senator Lieberman's assessment of staying the course to a victorious conclusion in Iraq? Do you agree with Zell Miller's assessment of the Democratic party? Those are rhetorical questions; just examples of same party different page.

Old Soldier-- I can't speak for Arthur, but...

"...Arthur, if contrary to your thinking and desires, the courts find for the president, will you accept that he has been acting within his executive powers and in the best interest of our nation?"

No, I'm afraid I can't go that far. I believe this administration has done and continues to do a lot of things that are contrary to the interests of the Republic.

However, in keeping with the Founders' design for this government, if the other branches sign off on it then by the Constitution it's legal; and I for one will shut up about it. (Well, awright, I might grumble; but there's plenty of things that are legal and constitutional that I grumble about. That's life in the Big City.)

I think so much of this is about oversight; and that Congress has given this administration such free rein. If the other branches are doing their job and all three branches agree that the Executive had the right to do whatever it did... that's that.

Now, isn't that reasonable?

Here's a little 'wake-up' message for you, FB.

All three branches of government do not sign off on whether or not Bush's warrantless NSA surveillance operations were in keeping with the Constitution. That, in the final analysis, is the sole responsibility of the Supreme Court. In fact, the SCOTUS can find the FISA statutes unconstitutional, and Congress has no power to overrule the SCOTUS decision.

FB, I guess you've been as reasonable as I've ever witnessed. However, I do have a question. You stated, "I think so much of this is about oversight; and that Congress has given this administration such free rein." I just reread Articles I, II and III and do not find where the Legistative Branch has "oversight" over either of the other two branches. So, just which branch is supposed to have "oversight" over which branch?

Retired Spy-

I am only pointing out that persons of good will, enthusiastic supporters of the president among them, have problems with this eavesdropping issue.

You criticize me when I offer my own opinion and now you criticize for sharing others opinions.

I credited the WSJ at the beginning of the post. What's the problem with that?

I think CY already addressed this issue. To begin with, the article showed up in the WSJ almost a month ago - right in the immediate aftermath of the Risen/Lichtblau article in the Times and a host of copycat columns in newspapers across the country.

Things have change since then, and attitudes have changed along with everything else. Many legal precedents have been brought to the fore, and these have influenced many people.

It ain't the same, Artie.

RS-

We'll just have to wait and see how much has changed and how far the president is allowed to go won't we?

Absolutely.

Arthur, do you suppose the author of the WSJ editorial would write the same thing today after reading the DOJ paper?

S/he should. There's nothing in the DoJ brief that wasn't expected. They could have cribbed it from any number of lawblog posts detailing the administration's arguments.

And no matter how many pages get added, it's a weak argument to claim that the President can do whatever he wants because this is war (which it isn't, a fact conveniently but shortsightedly elided in the DoJ brief. The congress didn't declare war, they gave limited statutory authorization for use of military force per the War Powers Act.)

I also believe that Clinton was justified when he authorized warrantless wiretaps and physical searches of Aldrich Ames' home.

Everything done in during the Ames investigation was in compliance with the law. The wiretaps were performed pursuant to FISA warrants; and the search was performed prior to the amendment of FISA requiring a warrant for physical searches.

(was that nice enough? Gauging from the deletion of my previous comment, it seems the moderator thinks Retired Spy is a bit on the sensitive side. If there's one thing that conservative agree on, it's that no one's feelings should ever be hurt, regardless of how ignorant or stupid they are).

I doubt that anyone deleted anything you wrote, unless it was filled with the sort of filth and ad hominem attacks we have come to expect from the extreme Left.

By the way, it was one of Clinton's Deputies to the Attorney General who wrote the legal brief that stated that Clinton's warrantless wiretaps and searches were withing his rights as Commander-in-Chief.

Bottom line? You don't know crap about anything, and it is very apparent that you are paying far too much attention to the KOS Kiddies, the Democratic Underground, Michael Moore and Democrats dot com.

Maybe CY will allow you to return when you can deal with facts.

Four and one half years and still no sign of the greates mass murderer in American history.

Instead of vast eavesdropping on US citizens through wiretaps and harvesting of computer data from Yahoo and such maybe we should try just a little harder to catch Bin Laden.

I can imagine the hue and cry on this blog and others like it if a Democrat were in office and acting as ineptly as this one.

Have a great weekend folks.

KOS Kooky Kids now includes none other that John Kerry...I'm sure that will go far in his next election campaign. How stupid is that?

Will these guys ever figure out that the more they complain about this, especially an issue that, regardless of the rhetoric, the majority of americans support? How do they think they are winning votes when all they can do is come up with alleged scandal after alleged scandal? Do they ever think about how people wondering how they even get their current "job" done? Bush's ratings continue to grow, albeit slowly, and the left thinks they are going to win votes by having John Kerry (and his wife - you know the multi-billionair whose family owns Heinz) participate at KOS; by having Splash Kennedy quit the club he says he gave $100 a year to but didn't belong to; Code Pink awards to Murtha; Al Gore caught in lies in his latest speech; harboring a KKK Kleagle; ....geez I could go on forever.

Artie,

Surely you can't be referring to OBL, who CLINTON COULD HAVE HAD BUT DID NOT ACT....

He did act Specter. One of the failures was the bombing of the 'aspirin factory' the conservatives take such delight in pointing out.

Of course Republican administrations were elected twice as being better at this sort of thing.

OSB at this point is worth more to Mr. Bush on the loose than captured. Hence the nonchalance in working to achieve that goal.

"Four and one half years and still no sign of the greates mass murderer in American history."

Osama bin Laden is but one person in the entire world of al Qaeda terrorists. Just getting him is not going to lessen the threat from al Qaeda. Sure. It would be nice to vaporize him and his top-level buddies, but we cannot take our eye off the bigger picture - terrorist cells throughout the world who are independent and not waiting for marching orders from OBL.

Dumb statement, Artie.

"Instead of vast eavesdropping on US citizens through wiretaps and harvesting of computer data from Yahoo and such maybe we should try just a little harder to catch Bin Laden."

What is the "vast eavesdropping on US citizens" sh*t, Artie? There is no vast eavesdropping, except in your our paranoid delusions and KOS world of idiocy.

As for "Yahoo" searches, it was Google, Artie, and the objective was totally separate from the war on terrorism. You can't even keep your search engines straight. And you expect anyone to take you seriously?

The Google searches are for uncovering child pornography and its users. Why? Because child pornographers and their customers are equal threats to our children. Are you trying to tell us that child pornography and child rape and molestation is not important?

Once again, Bin Laden is just one man.

You really ARE daft, aren't you?

RS-

Yahoo, MSN are cooperating with the gov't. Google is not up to this moment in time.

Retired Spy, why can't you just admit you were wrong about Ames? You know you are, or you would've tried to correct me rather than spewing juvenilia such as: "You don't know crap about anything...."

Go back to your KOS Kids, jpe.

We deal with facts on this BLOG.

You only deal in name-calling.

Here's a little quote for you, jpe, straight from the mouth of Clinton's Deputy Attorney General in 1994:

"The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general," Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.

I guess the Library of Congress Records Department and the Congressional Record made that up too?

What a Dick ...

When you consider that the Congress has NOT declared war, all the arguments for the right and authority of the Executive, as Commander In Chief (defined by Article II of the Constitution), to conduct domestic surveillance are spurious at best and ignorant to a ridiculous degree.

We've been through this before; the war in Vietnam is the case in point. Vietnam was a war instigated by an Executive that was "justified" and based on lies, deception and "faulty" intelligence . Then, as now, we had a Congress that shirked it's Contitutional responsiblities and an Executive that sought unauthorized and illegal wiretapping authority; in fact it DID practice illegal surveillance on the domestic population. As a consequence Congress passed the FISA act. That we have an Executive that ignores this law comes as no surprise. It remains only for the people to rise up and say NO and no again to this president and NO to this breaching of written law. Will we never learn?

But Jack,

Check the polls. The people have risen up and said, "YES. We want the President to protect us."

Jack,

You said:
When you consider that the Congress has NOT declared war, all the arguments for the right and authority of the Executive, as Commander In Chief (defined by Article II of the Constitution)...

Since you are a constitutional expert, and since you have invoked Article II, please give us the exact words in Article II where it says that the powers of the President with respect to waging war are to be approved by the Congress as you assert. I want specific words here.

In fact Jack,

The Constitution says that Congress shall have the power to declare war, but it does not say anything about that having to be done before the president sends troops anywhere.

" Since you are a constitutional expert, and since you have invoked Article II, please give us the exact words in Article II where it says that the powers of the President with respect to waging war are to be approved by the Congress as you assert. I want specific words here. "

Posted by: Specter at January 21, 2006 07:55 PM

Specter... as per your request -

The Constitution Of The United States

Article. II.

Section. 2.

Clause 1: The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

- The Constitution, indeed, does not provide for congressional approval of the way in which the Executive carries out the duties of Commander-In-Chief. However, the Bill Of Rights does, among other things, define what activities by the government, including the Executive, are prohibited.

THE BILL OF RIGHTS

Article VI

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Furthermore, the Foriegn Intelligence Surveillance Act of 1978 clearly states -

(1) Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that-

(A) the electronic surveillance is solely directed at-

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or...

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party

So, we see that the powers of the Executive, in it's role as Commander In Chief, are clearly limited both by the Constitution and by law.

Further, I have seen NO poll where the people have risen to demand the president violate law and the Contitution in order to "protect us". I invite you to consider this: an open country such as ours can never be truly and completely safe from a jihadist barbarian intent on destruction.

I, for one, am unwilling to elevate one man above the law or to throw over our Constitution in pursuit of this vain and foolish illusion of "safety".

JACK

You can't even get your references correct, can you, Jack?

It's the Fourth Amendment to the Constitution - not the Sixth Article. Article VI, bonehead, has nothing whatsoever to do with the provisions you cited.

Furthermore, the Fourth Amendment does have a qualifying word - "unreasonable" - and surveillance of foreign nationals representing terrorist organizations via international communications, obtainable by anyone with a radio receiver capable of collecting signal transmissions anywhere in space, is not "unreasonable."

The FISA statute also has a word "substantial" in place there which is interpreted as meaning not "exclusively" indicative that no United States person is a party. Further, by definition, a foreign power includes any agents of a foreign power.

Chew on this too (The following is where a warrant is required):

"the intentional acquisition by an electronic, mechanical, or other surveillance device of the contents of any radio communication, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States;"

per FISA 1801 (f)(3)

In the cases authorized by President Bush, both sender and all recipients are NOT located within the United States - only the recipient.

FISA, therefore does not require warrants for this sort of surveillance.

sure ... let's give it all over to this facist president in the hope that he will save us from the consequences of our own policies. pathetic... help ! save us daddy !!!

Is that your best intellectual offering, Jack?

Pretty pathetic.

You've already demonstrated that you cannot read very well or conduct meaningful and extensive research.

Any moron can engage in name calling.

Only one of the deranged KOS Kids and their ilk would revert to calling the President a facist.

Maybe you should look up the meaning of the word before you rant your empty ad hominems, Jack.

It may be noteworthy, too, RS, that Jack cannot even spell 'fascist' correctly.

Let's examine the definition of Fascism:

A system of government marked by centralization of authority under a dictator, stringent socioeconomic controls, suppression of the opposition through terror and censorship, and typically a policy of belligerent nationalism and racism.

None of these is in place in the United States, nor does the President of the United States have or exercise absolute control.

Go away, little 'boy.'

Re: Gorelick and inherent authority:

She did, in fact, claim inherent authority for the president to conduct physical searches. But, as I pointed out earlier, warrantless physical searches weren't prohibited by FISA.

Do you understand now? Clinton: didn't break law. Bush: did break law. See how one of those isn't like sthe other?

(and if there were too many big words in there, just ask a grownup to help you read it)

In the cases authorized by President Bush, both sender and all recipients are NOT located within the United States - only the recipient. FISA, therefore does not require warrants for this sort of surveillance.

What do you think is more likely: that everyone just missed this until now, and you're a supergenius; or that you've got a touch of the slow? Quick, retired spy, you better tell the president what you discovered!

In this case (as in most, I suspect), you're just a little slow. Nothing wrong with that as long as you recognize it and take action to mitigate its effects. At any rate, 1801(f)(2) forbids wiretapping communications between one person outside and one person inside the U.S.

Interesting how quickly discussion degenerates into the personal. " moron... bonehead.. little boy ". The powers that be like nothing more than when they can set us against one another and cast issues in black and white terms. Well, as you must know from your own experience, things are very seldom simply black and white.

I invite all of you to consider a larger issue - what will you do, what will you say when YOUR government decides that YOU are the enemy and begins spying on you? I can hear your response now.. " gee ! what happened ?!?! "

re: facism

centralized authority - I give you the republican party holding both the congress and the white house; two institutions that have been rubber-stamping one another's activities for the last five years.

terror and censorship - I give you domestic spying.

belligerent nationalism and racism - I give you the war in Iraq; nationalistic by definition and racist by implication ( of course we must deliver these inferior people to our righteous way of life) not to mention the obsession with homosexuality by the religious right. Never doubt this group would deliver the homosexual population to concentration camps in a heartbeat were they given the opportunity ( hmmm.. haven't we seen that before?)

JACK

"Justice Dept. Declares NSA Surveillance Legal"

DUH !! This justice department would declare bush pope if he so wished.

JACK

Read 1801 (f)(2) again, please:

the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States, but does not include the acquisition of those communications of computer trespassers that would be permissible under section 2511 (2)(i) of title 18;if such acquisition occurs in the United States is just a bit important here. The acquisitions are NOT occurring in the United States - they 'occur' in outer space.

In Jamie Gorelick's defense of President Clinton she was citing the President's authority under the Constitution. Just in case you don't know, the Constitution 'trumps' FISA or any other statute.

Furthermore, More recently, the U.S. Foreign Intelligence Surveillance Court -- the secretive judicial system that handles classified intelligence cases -- wrote in a declassified opinion that the court has long held "that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."

Your so-called arguments are pretty empty and pathetically simplistic, Jacko!

1. Members in both houses of the Congress were voted into office in free elections. That is not centralized fascism.

2. I don't know where you studied logic, but terror and censorship do not equate to domestic spying, and the surveillance being done is not domestic - it is targeted against 'international communications.' Big difference, 'learned' one!

3. Your claim to "belligerent nationalism and racism" is just plain ignorant trumpeting of the paranoia from the far Left. The bit about the anti-homosexual campaigns and the concentration camp crap is really over the top.

I don't care who you choose to have relations with, Jack, nor do I give a rat's @$$ whom you may choose to hook up with as a lifetime partner. It makes no difference to me, nor does it make much difference to most Republicans.

If you'd read the rest of Gorelick's testimony, and not only those passages selected for you by the current talking points, you'd find that Gorelick noted that FISA was constitutional and a legit restriction of the authority of the president:

"As I stated earlier, we believe that existing directives that regulate the basis for seeking foreign intelligence search authority and the procedures to be followed satisfy all Constitutional requirements."

Why, then, jpe, did the FISA Court recently support the President's authority? As I just posted?

"Furthermore, More recently, the U.S. Foreign Intelligence Surveillance Court -- the secretive judicial system that handles classified intelligence cases -- wrote in a declassified opinion that the court has long held "that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information.""

That ruling did not specifically say physical searches or surveillance. Are those Court judges wrong and you are right? What are YOUR credentials in Constitutional Law? What is your 'authority?'

You may wish to wait to see what the ruling of the SCOTUS might be - should the investigation go so far as to petition the SCOTUS for a ruling.

Why, then, jpe, did the FISA Court recently support the President's authority?

A few things: there's no question the prez has inherent authority to perform wiretaps of agents of a foreign power for purposes of foreign affairs.

That's what the FISC decision you cite tells us. FISA, however, regulates situations when the president wishes to wiretap U.S. citizens. So we're talking apples and oranges.

Further, FISC decision clearly notes that the Truong is pre-FISA law, so it's not really relevant (and certainly not binding) to the current controversy.

All of this to say that the Court has never ruled on the constitutional limits of FISA - who knows, maybe they'll find it unconstitutional and uphold Bush's warrantless searches of Americans, maybe not.

You're right about one thing: we won't know until (or if) these issues start to wind their ways through the court system.

So Jack,
You originally said:

When you consider that the Congress has NOT declared war, all the arguments for the right and authority of the Executive, as Commander In Chief (defined by Article II of the Constitution), to conduct domestic surveillance are spurious at best and ignorant to a ridiculous degree.

In response, I asked you to show me where in Article II is says the President needs congressional approval to use military force. I asked you to do that because you are the one who indicated that "arguments....to conduct domestic surveillance are spurious at best" because Congress had not declared war. I guess after you read the Constitution, probably for the first time, you figured it out and said:

The Constitution, indeed, does not provide for congressional approval of the way in which the Executive carries out the duties of Commander-In-Chief. However, the Bill Of Rights does, among other things, define what activities by the government, including the Executive, are prohibited.

So...first things first, you admit that your argument about Congress declaring war was incorrect. Good. You are learning.

Next you talked about Amendment IV in conjunction with FISA and the restrictions containted within those bodies of law. I will give you some credit for at least attempting to look stuff up, but you didn't go far enough. You said:

So, we see that the powers of the Executive, in it's role as Commander In Chief, are clearly limited both by the Constitution and by law.

What you did not do was to understand the definitions that FISA uses. You quoted (emphasis mine):

(i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or...

(B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party

To go further, you should also check out Title 50, Chapter 36, Subchapter 1, Section 1801 of FISA.

This is the key section on definitions. Pay special attention to (a)(4) where the law defines a "foreign power" as a "group engaged in international terrorism". After seeing those key phrases, read section (b) which defines what an "agent of a foreign power" is.

As used in this subchapter:
..(a) “Foreign power” means—
......(1) a foreign government or any component thereof, whether or not recognized by the United States;
......(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
......(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;
......(4) a group engaged in international terrorism or activities in preparation therefor;
......(5) a foreign-based political organization, not substantially composed of United States persons; or
......(6) an entity that is directed and controlled by a foreign government or governments.
..(b) “Agent of a foreign power” means—
......(1) any person other than a United States person, who—
..........(A) acts in the United States as an officer or employee of a foreign power, or as a member of a foreign power as defined in subsection (a)(4) of this section;
..........(B) acts for or on behalf of a foreign power which engages in clandestine intelligence activities in the United States contrary to the interests of the United States, when the circumstances of such person’s presence in the United States indicate that such person may engage in such activities in the United States, or when such person knowingly aids or abets any person in the conduct of such activities or knowingly conspires with any person to engage in such activities; or
......(2) any person who—
..........(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;
..........(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;
..........(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;
..........(D) knowingly enters the United States under a false or fraudulent identity for or on behalf of a foreign power or, while in the United States, knowingly assumes a false or fraudulent identity for or on behalf of a foreign power; or
..........(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).
..(c) “International terrorism” means activities that—
......(1) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or any State;
......(2) appear to be intended—
..........(A) to intimidate or coerce a civilian population;
..........(B) to influence the policy of a government by intimidation or coercion; or
..........(C) to affect the conduct of a government by assassination or kidnapping; and
......(3) occur totally outside the United States, or transcend national boundaries in terms of the means by which they are accomplished, the persons they appear intended to coerce or intimidate, or the locale in which their perpetrators operate or seek asylum.

There are two sub-sections to part (b). The first deals with "any person other than a United States person", and clealy deals with non-US Persons. But the second subsection is "any person who". Now read (b)(2)(c)which clearly defines an "agent of a foreign power" as being "any person who - knowingly engages in sabotage or international terrorism, or activities that are in preparation thereof, for or on behalf of a foreign power." So by the FISA law itself, a person who talks with a known terrorist can be classified as an "agent of a foreign power". And also clearly, since this section is clearly distinct and separate from the section dealing with "non-US Persons", this definition includes US citizens.

Now the only question that has to be answered under FISA is if a US Person is protected once they have been identified as an "agent of a foreign power"? That is not as easy to answer seeing as the law seems to contradict itself. But clearly the definitions section shows that US Persons could be considered "agents". If not, why the distinction between (b)(1) and (b)(2)?

All that aside, the President is not even asserting that he made the decision to go with the NSA program based on FISA, but instead on AUMF with his presidential war powers to gather intellingence. In addition, since you admit that the Congress has not constitutional authority to direct the President what he can do with the military, if FISA conflicts with his constitutional authority (which in the case of war it appears to), then the law itself is unconstitutional.

Does the president have full war powers per the AUMF? It would seem that Congress expressly refused to grant him the full range of war powers: the War Powers Act allows the president to conduct military operations in three circumstances: a declaration of war; specific statutory authorization; and emergencies. The language of the AUMF verbatim recites the language of statutory authorization.

So it isn't a declaration of war.

Is the AUMF a functional equivalent? Probably not. The language of Hamdi is very, very careful to limit its application to the battlefield, which is consistent with the narrower grant of military power we see in the AUMF.

The upshot of all this is that Bush is acting in contravention of FISA, and his power is at its lowest ebb (per Youngstown). All of those factors bode poorly for an outcome favorable to the prez.

but jpe,

You got youngstown wrong. It was a completely different situation and what you are trying to argue is that a concurring opinion, written by one justice (Jackson) set constitutional precedent. One Justice never sets that. But let's look more closely at this decision:

First off, you might want to read the entire case before you spout off with talking points handed to you by your buddies at Kos Kooky Kidz.

You can read the case here.

Let's talk about what the case was about. In this case President Truman tried to take over the steel mills to avert a nation-wide strike of steel workers in 1952. The government argued that the President had the power based on three of the components of Article II:

The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . ."; that "he shall take Care that the Laws be faithfully executed"; and that he "shall be Commander in Chief of the Army and Navy of the United States.

What the court ended up ruling was that Truman did not have the right to order the takeover of the mills under the "executive Power". In fact most of the discussion and opinion was written on the basis of that, and not on the basis of limiting the President's powers as the Commander in Chief.

Now let's talk about the spin you tried to put on Jackson's opinion. Justice Jackson raised three points about Presidential Power (and this is the part of his opinion that you referred to; emphasis mine):

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Now, you will notice that nowhere in this does Jackson talk about the President's powers as Commander in Chief. Instead it talks about an area where the President and Congress both have overlapping areas of responsibility.

Now let's turn to the majority opinion. In essence what the court said was that the attempted siezure of the mills was not an international matter.

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Note what they said. The Commander in Chief cannot take private property. It has nothing to do whatsoever with intelligence gathering, or warrantless serach/siezure. In some ways it almost amounted to a case of Eminent Domain, that was not approved by the Legislature first. (BTW - I will be posting an Eminent Domain discussion on my site tomorrow). In this case the court got the decision right.

Now let's return to Justice Jackson's opinion. What you have failed to realize is that there was more to it than the three points listed above. I would like to point out one other segment:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

Now note here that Justice Jackson says that they are not trying to abridge the President's constitutional powers as Commander in Chief. And again, the same opinion that your leaders have convinced you to quote by rote, says specifically that the ruling is about the President not being allowed to use his Executive Power "because of a lawful economic struggle between industry and labor..." Nothing there to be applied to intelligence gathering or warrantless surveillance. The case is pointless as an argument in this issue.

Specter:

Jackson's concurrence in Youngstown is widely acknowledged as the opinion that sets up the relevant framework. That's why all the legal documents (the DoJ's memo; the memo prepared by the Congressional Research Service) as well as all of the legal experts proceed under Jackson's concurrence.

At any rate, the question is going to be in which level in the tripartite scheme* Bush was operating. The DoJ says it's at maximum power, since the AUMF was a declaration of war. Everyone else on the planet says he was at his lowest ebb, since: the AUMF wasn't a declaration of war and Congress specifically considered dropping the warrant requirement after 9/11 and decided not to.

* We're in overlapping territory: American citizens that aren't agents of foreign powers were spied on. So your point about commander-in-chief powers is moot.

And jpe, which citizens are those? What proof is there that any citizen that was not "aofp" was spied upon?

Since it's all been hush-hush (perhaps Bush has something to hide? Why else would he refuse to get an easily obtainable warrant?), we don't know who he's spied on.

Given that he's mounted a vigorous defense of spying on non-aofg citizens, though, I think it's safe to assume he did just that. But I guess we'll have to wait and see.

Name one...you made the claim...not me. Name just one. C'mon. You can't make claims and then not support them. Or you just a left-leaning weanie that can't support what you say?

Where is your proof that warrants are easily obtainable? How much paperwork has to be filled out to obtain that warrant? Does it take longer than 723 hours? Just like all weanies, you make claims with not backup. None.

Ooops...72 hours.

And jpe,

Did you ever wonder why the WPA of 1973 hasn't been brought to the Supreme Court yet. I mean it was passed in 1973 and clearly abrogates the President's authority to conduct war. I'd quote the controversial sections to you - and the articles from over the years about why the Congress does not want it to go to the Court, but you would absolutely ignore it and say...but it's what everyone is talking about.

Youngstown is a case that has no revelance. The only reason Youngstown was even brought up (first by the Demoncrats) is because they could not find anything else that remotely supported their position in case law. Like all the cases that have been decided for the President's powers. Even in Youngstown the Justices talked about not trying to circumscribe the powers of the Commander in Chief. If that is the best they got, too bad - it won't fly.

If the Congress has the balls to try to get it to the Court, you won't find Youngstown being a strong argument. It is weak. It is not even close to the same situation. You know as well as I do that nobody is going to bring that to the Court. Just like WPA of 1973.

And why? This is really simple. It is a political decision rather than one of law.

I refer you to the latest poll done on 1/10 and 1/11. You can link to see the specifics of the breakdowns by question. I did not quote the entire poll.

Just for starters, let's review the makeup of the participants because I know that you will try to refer to the AP/IPSOS poll which was wildly unblanced between political parties (and StonedOne, you said you knew of no polls about this stuff - well here it is):

When you think about politics, do you think of yourself as a Democrat or a Republican?

1. Democrat 38%
2. Republican 33
3. (Independent) 22
4. (Other) 4
5. (Refused/Don’t know) 2

Here we see a somewhat unbalanced poll - but it is slightly in favor of the Democrats. Let's get to the pertinent questions (as always emphasis mine):

Do you approve or disapprove of the job George W. Bush is doing as president? Approve....42% Disapprove....49 Don’t know....9

Do you approve or disapprove of the job Democrats in Congress are doing?
Approve....39%
Disapprove....41
Not sure....20

Do you approve or disapprove of the job Republicans in Congress are doing?
Approve....37%
Disapprove....49
Not sure....14

What is your gut instinct about how things will go for the country in 2006? Do you feel like it is going to be a great year, a good year, an okay year or a bad year?
Great....7%
Good....31
Okay....39
Bad....18
Not sure....5

Which party do you trust to do a better job protecting the country from terrorism, Democrats or Republicans?
Trust Democrats....30%
Trust Republicans....43
Both Democrats Republicans the same....11
Neither....9
Not sure....7

In general, do you think most elected officials in Washington make policy decisions or take actions as a direct result of money they receive from major campaign contributors?
Yes....65%
No....21
Not sure....14

(If heard about Abramoff: n=509, ±4%) Do you think elected officials who received contributions from Jack Abramoff or the organizations he represented should return the money, donate it to charity, or do you think it is okay to keep the money?
Return it....29%
Donate it....56
Keep it....7
Depends....3
Not sure....5

Do you think the absence of a terrorist attack in the United States since 9/11 is more likely because U.S. security measures are working or no attacks were planned?
Measures Working....46%
No attacks Planned....22%
Both....20
Not Sure....12

After the 9/11 terrorist attacks, Congress passed the Patriot Act which, in part, gives federal officials wider authority to use wiretaps and other surveillance techniques. Some people say the Patriot Act is a necessary and effective tool in preventing terrorist attacks, while others say the act goes too far and could violate the civil liberties of average Americans. Which comes closer to your view -- overall, would you say the Patriot Act is a good thing for America or a bad thing for America?
Good....53%
Bad....30
Mixed....13
Not sure....4

Do you think the Patriot Act has helped prevent terrorist attacks in the United States or not?
Yes....59%
No....29
Not sure....12

When you hear of government officials anonymously leaking top secret national security information to the press, are you more inclined to think of the officials as patriots who are blowing the whistle because they think something illegal might be going on, or traitors who are leaking government secrets and possibly causing harm to the country?
Whistle-blowers....27%
Traitors....50
Not sure....23

Do you think the president should or should not have the power to authorize the National Security Agency to monitor electronic communications of suspected terrorists without getting warrants, even if one end of the communication is in the United States?
Should....58%
Should not....36
Not sure....6

In an effort to identify terrorist activity, do you think the president should or should not have the power to authorize the National Security Agency to do computer searches of large numbers of international phone calls coming in and out of the United States without getting warrants?
Should....60%
Should not....34
Not sure....7

Would you personally mind having the National Security Agency monitor an international telephone call of yours?
Yes....33%
No....60
Not sure....3
Don’t call overseas....3

So what do we see from all this. As I said above, this is going to turn on political considerations rather than legal ones. Aftter all we are talking about politicians and there is a midterm election coming up.

The President's approval rating is going up, and is higher than either party in Congress. In fact people have a very dim view of all Congresspeople. They do not trust them. 65% of Americans feel that elected officials hand out favors for political donations (both parties of course - the scoundrels). And 85% of Americans feel that all elected officials that took money from Abramoff or any of his organizations, should either give the money back or donate it. That does not bode well for politicians that say, "I'm keeping it". At this point it does not even matter if it was tainted - the fact is that people believe it was.

70% of Americans feel that 2006 will be a good/ok year for them - which is based on the underlying assumption about jobs, the economy, protection from terrorists, etc.

43% of Americans trust Republicans to protect them from terrorism. That bodes well for them since only 30% trust Democrats.

46% believe that there have been no further terrorist attacks because the measures implemented after 911 are working. 53% believe that the Patriot Act was good for America and 59% believe that it has helped to prevent terrorism. Powerful numbers here. I don't think I'd want to be running for reelection with the campaign platform (courtesy of Harry Reid), "We defeated the Patriot Act."

50% of Americans believe, contrary to what the MSM has told them, that officials that leak secrets are traitors as opposed to whistle-blowers. I sure wouldn't want my name attached there - especially with reelections coming up.

Now the really juicy stuff. 58% of Americans believe the President should have the power to authorize NSA to monitor electronic communications of suspected terrorists, even if one end of the communication is within the US, without a warrant. And top that with 60% saying that the President should have the power to let NSA do computer searches of large numbers of international phone calls without getting a warrant. In fact, most of those surveyed, 60%, said they would not mind having their international calls monitored.

The more the democrats attack these issues, the more the country turns against them. In the long run, this stuff will never be seen by the Court. Instead, once the poll numbers are understood, we'll see huge efforts by those who are now speaking the "inappropriate views" (i.e. against what the majority of Americans want), to extract the rather large feet they have inserted in their mouths.

Specter, both sides (read the memos) as well as every lawyer (see here, here, and here, for starter) knows that Youngstown sets the framework. Go look up Youngstown in Findlaw: you'll find Jackson's concurrence is the opinion to use when the executive and the congress clash.

This is conlaw 101.

I guess it's possible that every lawyer in the nation is wrong about Youngstown, but it's far more likely that you're just a little slow.

At any rate, since the most substantive thing you say in all of those thousands of babble you posted is "you're a weanie," it's fair to assume I've done my job and brought some light to you dipshits.

Remember: learning is your friend.

Oh, and try learning some conlaw before spouting off and sounding like an angry 14 year-old. Which, come to think of it, everyone on this blog may be. That would explain quite a bit, actually.

Are you having some problems posting URL's with basic HTML codes, jpe? I really would like to read those references on Constitutional Law - since you seem to think you are some sort of expert.

jpe,

I am sitting here laughing at you. You just said:

jpe opening his mouth and speaking nonsense said: Go look up Youngstown in Findlaw

Obviously you did not follow the links to the case that I posted jpe. Interestingly enough it was to FINDLAW.

You spout about learning. Have you read the entire case? I have. Are you a lawyer? Are you a constitutional expert? Please state your qualifications for saying the "every" lawyer...You can't. You know it. Tough.

It is obvious you have seen, and maybe even read, the three paragraphs from the beginning of Justice Jackson's opinion. Did you know that there were almost 40 paragraphs in his opinion? I will not quote all of them. While many of them talk about the use of "unlimited" presidential power, and how that should not be allowed, Justice Jackson keeps coming back to "We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what contingency it would end." In other words, the question was about the use of the power in relation to siezure.

I posted specifics from Jackson's opinion. Why don't you tell why my interpretation of the specifics were wrong? How I misinterpreted the section where Jackson, in the opinion where you believe the foundation for all the law about the entire issue, says:

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence. His command power is not such an absolute as might be implied from that office in a militaristic system but is subject to limitations consistent with a constitutional Republic whose law and policy-making branch [343 U.S. 579, 646] is a representative Congress. The purpose of lodging dual titles in one man was to insure that the civilian would control the military, not to enable the military to subordinate the presidential office. No penance would ever expiate the sin against free government of holding that a President can escape control of executive powers by law through assuming his military role. What the power of command may include I do not try to envision, but I think it is not a military prerogative, without support of law, to seize persons or property because they are important or even essential for the military and naval establishment.

I even included more from that section for your "expert" opinion. But again, the specifics of the case are about siezure of private property to support a war effort. Not about protection of the homeland through surveillance.

I think there are two things here that are important. One, this, like the War Powers Act, is never going to go to court. Two, I will state again that a Concurring Opinion, written by a single Justice, does not necessarily set Supreme Court precedence. It was not the Majority Opinion.

BTW - your links did not work for me. Don't know why.

As far as legal challenges go, I think the approach that the surveillance could be against First Amendment rights to free speech have more likelihood of at least getting to court. Provided someone can prove, not just state, that the government somehow interfered with "free speech". While it has a better chance, it is a reach at best.

well...forgot a at the end of the quote. Sorry.

Sorry, guys.

jpe won't be available for further discussion.

Thanks CY. You know you keep trying and it's like beating your head against the wall. I love open debate, but really dislike, "I'm right because I'm superior to you and I know what I say is correct because I know I am...." - trolls....

Thanks for the great work on the site.

If you're interested I just did a piece on the Eminent Domain issues at my site.

Shucks, CY ... I was hoping that jpe would remain here long enough for folks - Specter in particular - to trounce this troll into oblivion.

You're no fun, Cy! :-) :-)

PS: It IS interesting to note, here, that Artie and Fat Bastard kept out of the discussions when it pertained to in depth legal discussions of the WPA of 1973 and loonie Judge Jackson's opinions that never really did establish legal precedent. After all, the Youngstown case was not, in any way, related to Executive powers and prerogatives as the pertain to surveillance and collection of Intelligence information on foreign terrorist communications.

What say you, Artie and Fat Bastard?

ohhh....but RS...Artie isn't a lawyer and can't read or think for himself....

But I will admit that he made me look twice at Al Gore and his help in furthering internet research by either sponsoring or co-sponsoring key legislation. Still doesn't explain why the statement, "I took the initiative in creating the internet" makes any sense....