ArtCatDom
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quote:
ORIGINAL: incognitoinmass
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. This is absolutley false. Can you name those seven court rulings? (Trick question, because such court rulings do not exist.) This is not "well established" like you claim. If it were, there would not be such a fierce debate about it. If it were, prominent members of the President's very own party would not be claiming there is no legal authorization for the no-warrant wiretaps. You should stop swallowing everything Karl Rove feeds you before you catch a disease
In 1967, the Court decided Katz v. United States, 389 U.S. 347. Katz involved the warrantless interception of a conversation held by a criminal defendant in a phone booth. The Court held that the Fourth Amendment applies to such conversations, and that in an ordinary criminal prosecution (subject to many exceptions, as noted above) a warrant is required for wiretap information to be admissible in court. The Court specifically noted, however, that its decision did not apply to situations involving national security:
"Whether safeguards other than prior authorization by a magistrate would satisfy the Fourth Amendment in a situation involving the national security is a question not presented by this case."
This says nothing about the wiretap process currently being used by the administration. The exact problem is that it is being used without "safeguards" as discussed by the Court in Katz. This case would bolster critics of the program, not defenders. The FISA established review process is an example of a safeguard in a national security situation which allows post facto authorization.
Hamdi is a case that is unrelated to the current wiretap debate. If you read the actual decision, you would note that heavy emphesis was placed on his battlefield capture. He was engaged as a foreign combatant on foreign soil against American forces. The authorization of military force includes an implicit power to detain combatants captured on the field of battle. Simply put, a no-prisoners approach would violate numerous domestic laws and international treaties. To assume that is the default state of affairs is ridiculous to assert. Therefore, an authorization by Congress for the Executive to carry out a militar action includes the authorization for detention. This does not speak at all to wiretapping on domestic soil.
quote:
ORIGINAL: incognitoinmass
This specific question was first addressed by the Fifth Circuit in United States v. [Cassius] Clay, 430 F.2d 165 (5th Cir. 1970). In the course of its opinion rejecting defendant’s claim that his conviction was based on information obtained from illegal wiretaps, the court wrote:
"The fifth wiretap was not disclosed to defendant because the District Court found that the surveillance was lawful, having been authorized by the Attorney General, for the purpose of obtaining foreign intelligence information. The Supreme Court has not yet decided whether electronic surveillance for the purpose of obtaining foreign intelligence information is constitutionally permissible [citation omitted], though Mr. Justice White has expressed the view that such surveillance does not violate the Fourth Amendment. [citation omitted]
We…discern no constitutional prohibition against the fifth wiretap. Section 605 of Title 47, U.S.C., is a general prohibition against publication or use of communications obtained by wiretapping, but we do not read the section as forbidding the President, or his representative, from ordering wiretap surveillance to obtain foreign intelligence in the national interest."
and
In 1974, the Third Circuit decided United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), where the defendant was convicted of espionage. The court wrote:
"In sum, we hold that, in the circumstances of this case, prior judicial authorization was not required since the district court found that the surveillances of Ivanov were “conducted and maintained solely for the purpose of gathering foreign intelligence information"and
Three years later, the Ninth Circuit decided United States v. Buck, 548 F.2d 871 (9th Cir. 1977), a firearms prosecution. The court said:
"Foreign security wiretaps are a recognized exception to the general warrant requirement…."
and
In 1980, the Fourth Circuit decided United States v. Truong, another criminal prosecution that arose out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case squarely presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:
"The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs."
The court agreed with the government’s position:
"For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations."
The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.
All of these cases have been nullified by the passage of FISA, which was intended to address this very issue.
quote:
ORIGINAL: incognitoinmass
The state of the law was summed up by the Second Circuit in United States v. Duggan, 743 F.2d 59 (1984), a terrorism case in which the court, among other rulings, upheld the constitutionality of the Foreign Intelligence Surveillance Act (FISA), which was adopted in 1981. The court wrote:
"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."
Another citation that instead of defending your point of view, criticizes it. It was a case uphoilding FISA and indeed stating that BEFORE FISA the President was viewed to have such broad discretion, but that NOW UNDER THE AUTHORITY OF FISA the executive must defer to the FISA court. I'd suggest you'd actually read decisions rather than swallowing what others feed you.
quote:
ORIGINAL: incognitoinmass
Finally, in 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall” between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose” test by providing that surveillance under FISA was proper if intelligence gathering was one “significant” purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:
"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable"
First one you've quoted with any relevancy. That single panel admitted a presumption of the President's power in that case, but did not do an analysis of such power. It was a review of the consitutionality of FISA warrants, as explicitly stated in the last sentance of the quote. While this would have some bearing, and could even possibly be cited, it is unlikely. FISA courts review implementation of FISA provisions and issue warrants, but have little authority beyond those limits. Additionally, this is from the dicta, which have very weak grounds for citation, even when it's dicta from the Surpreme Court.
quote:
ORIGINAL: incognitoinmass
It’s worth noting that all of the cases cited above involved warrantless searches inside the United States. The NSA program, in contrast, involves international communications only, and the intercepts take place at least in part, and perhaps wholly, outside the United States. Thus, the NSA case is even clearer than the cases that have already upheld Presidential power.
False assertion. The administration has admitted a number of the wiretaps involve communications to and from individuals within the United States. This would not be a debate otherwise, because the Department of Defense has clear authorization in principle and statute to conduct completely foreign surveillance. The utter lack of mention of this huge body of legal authorization for foreign surveillance by the President is very telling. Part of the problem is that the NSA (a body of the DoD) is conducting what is at least partially domestic surveillance, which is restricted and banned by numerous laws.
quote:
ORIGINAL: incognitoinmass
Tip o the hat to the attorneys at Powerline http://powerlineblog.com/archives/012631.php
My tip for you:
Actually read the sources and principles you're trying to argue, instead of regurgitating material from someone else.
*meow*
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