Feingold calls for Presidential Censure.

[FlaSoxxJim]

We need to remember that "slam dunk" was only specifically used to refer to re: Secret Case, and there has yet to be any serious inquiry into the NSA issue, even if Byron York is correct in seeing preceident here.

 

Your characterization of this 2002 meeting as being two sides laid out for judicial review remains unsubstantiated with what was in thet NR piece.

 

I follow the legal argument presented, but I certainly would like to see it scritinized in specific regard to the NSA program. Even John Yoo has previously noted that constitutional violations of privacy should only be undertaken in the face of imminent terrorist threats. I don't know if 4+ years at constant threat level "yellow" - smackdab in the middle of the scale can be seen as a continued imminent terror threat. As such, doesn't there need to be a sliding range of NSA authority to coincide with threat levels that are not "red" or even "orange"?

 

And as far as GWB or anybody following the laws on the books in establishing the program. If it was launched in some capacity before 9/11 (still speculative at this stage, yes), then those laws would not yet have been on the books.

[YASNY]

We need to remember that "slam dunk" was only specifically used to refer to re: Secret Case, and there has yet to be any serious inquiry into the NSA issue, even if Byron York is correct in seeing preceident here.

 

Your characterization of this 2002 meeting as being two sides laid out for judicial review remains unsubstantiated with what was in thet NR piece.

 

I follow the legal argument presented, but I certainly would like to see it scritinized in specific regard to the NSA program.  Even John Yoo has previously noted that constitutional violations of privacy should only be undertaken in the face of imminent terrorist threats.  I don't know if 4+ years at constant threat level "yellow" - smackdab in the middle of the scale can be seen as a continued imminent terror threat.  As such, doesn't there need to be a sliding range of NSA authority to coincide with threat levels that are not "red" or even "orange"?

 

And as far as GWB or anybody following the laws on the books in establishing the program.  If it was launched in some capacity before 9/11 (still speculative at this stage, yes), then those laws would not yet have been on the books.

 

Yes, I agree with you second paragraph. It is unsubstantiated with what was written within that piece. Thanks for pointing that out.

 

Perhaps, just maybe, 4+ years at a constant 'yellow' threat level has been a result of the decision made by the 'Court of Review', as opposed to an occasional upward fluctuation.

 

FISA, and therefore the right to petition the 'Court of Review' was enacted in 1978. I don't see how that in the least bit speculative.

 

Now Jim, I ask you. Will you concede that Bush did not act illegally since he followed the laws and proper procedures spelled out by those laws which were passed in 1978?

[YASNY]

It's been over two hours since this thread has been added to. I really thought there'd be more discussion about this.

[NorthSideSox72]

It's been over two hours since this thread has been added to.  I really thought there'd be more discussion about this.

I was quite enjoying the discussion, actually. But I think many of the main points have been exhausted (without further information to chew on). You, myself and Flaxx seem to have come to differing conclusions on the matter.

[kapkomet]

Yes, indeed, this was one of the better threads/discussions in a while. I appreciate seeing things like this here.

[FlaSoxxJim]

Yes, I agree with you second paragraph.  It is unsubstantiated with what was written within that piece.  Thanks for pointing that out.

 

Perhaps, just maybe, 4+ years at a constant 'yellow' threat level has been a result of the decision made by the 'Court of Review', as opposed to an occasional upward fluctuation.

 

FISA, and therefore the right to petition the 'Court of Review' was enacted in 1978.  I don't see how that in the least bit speculative. 

 

Now Jim, I ask you.  Will you concede that Bush did not act illegally since he followed the laws and proper procedures spelled out by those laws which were passed in 1978?

I apologize for the lull. I had an off-site meeting to go to.

 

I will concede the actions are legal if an actual investiation and/or judicial inquiry was allowed to procede and reached that conclusiona and it passes muster with a critical mass of legal and Constitutional scholars as I am neither.

 

It bugs me that it's taking a Byron York to connect the case law dots that seem to uphold the legality of the program while GWB, Albert Gonzales, Michael Heyden and others have been scrambling to clutch at any straws that would support the legality of the program. Much like tthe proverbial 'solution in search of a problem,' this is a program in perpetual search of legal justification. York may well have stumbled on the best legal justification yet (assuming no version of the program existed before 9/11), but it clearly was not a precident NSA or the White House had in mind from the outset or they would have said so.

[Balta1701]

Ok, I've reviewed not only Byron York's piece, but I went and actually read the 56 page decision decided by the "Court of Review" in this case (man, the concept of the "Court of Review, now there's an interesting one too), and I think I have a little bit to contribute to this discussion.

 

I think it is worth noting something which is not pointed out in Byron York's piece...the actual issue which was being brought up before the "Court of Review (COR)" and how it dealt with the "Wall", which he does not explain well IMO.

 

The issue which was brought up before the COR was based on a reading of FISA which had predominated since the 80's. That reading had held that there was a dichotomy in when FISA could be used and when it could not...that FISA was inapplicable in cases where the "Primary Purpose" of the search was a criminal prosecution. The COR determined in this case that they feel that such a designation was not a correct reading of the original FISA act, the Patriot Act had changed the law such that instead of following a "Primary Purpose" standard, FISA now became applicable in the cases where there Foreign Intelligence gathering was a "Significant Purpose" of the investigation. This is a much looser standard, and basically removes any requirement that FISA suspects cannot be subject to criminal prosecution (the incorrect worry of the Moussaoui folks).

 

Now, this case before the COR was basically searching for an interpretation of this clause and how strict it was. The FISA Court's denial in the case before the COR had been on the basis which was interpreted before the Patriot Act, the "Primary Purpose" one. Basically, if I read this correctly, they were seeing if they could deny a warrant because it was going to be used for prosecution of a potential foreign agent of some sort. The COR decided that the intent of changing the language from "Primary" to "Significant" allowed for the warrant to be issued in the latter case.

 

Now, as to the question of the warrantless surveillance...that is something which is dealt with only as a tangent in this COR opinion, but it is interesting to note the ways in which it is dealt with. Specifically, the COR addresses the relationship of the Truong case to FISA, by including this phrase describing a key part of the Truong decision

 

Although the Truong court acknowledged that “almost all foreign intelligence investigations are in part criminal” ones, it rejected the government’s assertion that “if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.”:

 

It was interpretations of this phrase combined with FISA which builds up the "Wall" which Mr. York refers to, and even more so, it is this phrase which is the basis for the COR opinion. It finds itself in disagreement with this statement, based on the updated provisions of the Patriot Act.

 

So, how does this apply to FISA? Well, the interesting thing is, as far as I can tell, this COR decision does not in any way deal with whether or not searches can be conducted of U.S. citizens outside of FISA. Why? Because the COR decision specifically states that FISA warrants do not meet the standard set out by the 4th Amendment.

 

Let me repeat that, because it is key to this whole discussion: the COR opinion states that the FISA warrants do not meet the 4th amendment standard. Therefore, the entire discussion Mr. York refers to is done in the context of whether or not searches outside the 4th amendment, but INSIDE FISA, fit with the definitions of the Patriot Act.

 

In fact, the case law which the COR opinion cites specifically does not answer the question as to whether or not searches outside of FISA authority are constitutional. These paragraphs I feel are key in this question. First this one:

 

The question before us is the reverse, does FISA amplify the President’s power by providing amechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.

This paragraph outlines exactly what the decision they're dealing with here says, and comes immediately after the part Mr. York excerpts. The question the COR is dealing with is not whether or not surveillance can be done outside of FISA, but whether or not FISA searches can be done under the constitution at all. When it refers to warrantless surveillance, it is only making a distinction between searches with a FISA warrant and searches with a criminal warrant, only the latter of which would meet the 4th amendment standard.

 

The second key paragraph is this one which occurs towards the end of the Truong discussion, which concludes this argument.

 

It will be recalled that Keith carefully avoided the issue of a warrantless foreign intelligence search: “We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents.” 407 U.S. at 321- 22.30 But in indicating that a somewhat more relaxed warrant could suffice in the domestic intelligence situation, the court drew a distinction between the crime involved in that case, which posed a threat to national security, and “ordinary crime.” Id. at 322. It pointed out that “the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes.”

This is actually the conclusion of their opinion, and it basically avoids taking any opinion on exactly the sort of search Mr. Bush has ordered outside of FISA. In fact, its entire thrust is designed at justifying searches within FISA which are outside of the 4th amendment standard.

 

Now, there are a few key points here which do hit matters that we have discussed before. The first is that while this opinion is important, it is not pertinent to the discussion of warrantless domestic surveillance outside of FISA. It simply doesn't take a stand on that subject, it's only interest is surveillance through FISA which does not meet the 4th amendment standard. It also notes that the law it is citing has not yet taken a stand as to whether or not those sorts of searches can be done outside of FISA.

 

Therefore, this COR opinion would have no bearing at all about whether or not Mr. Bush's actions in defiance of the exact wording of FISA have legal footing through the opinion that those parts of FISA are unable to limit the President. This COR review only states that the courts have not yet dealt with the claim that the President cannot conduct searches outside of FISA because FISA cannot limit the President's power in that way, and leaves that for another day.

 

Secondly, and here's the real kicker for some of the stuff we've said before, it judges that FISA searches DO NOT meet the 4th amendment standard. The searches are applicable only when there is a foreign intelligence basis for the search, but it is not a 4th amendment search.

 

There, I think I've gone through this issue, and man I need a break.

[NorthSideSox72]

Ok, I've reviewed not only Byron York's piece, but I went and actually read the 56 page decision decided by the "Court of Review" in this case (man, the concept of the "Court of Review, now there's an interesting one too), and I think I have a little bit to contribute to this discussion.

 

...

 

There, I think I've gone through this issue, and man I need a break.

 

Wow. This is great - its like we got free use of a law clerk for this discussion! Thanks for reviewing the full decision.

 

That statement about the 4th amendment gets to the heart of the opinion I expressed on this issue when it first came out, but goes even further in stating that the FISA warrants don't meet Constitutional test. Fascinating.

 

That combined with the failure in keeping branch checks in place (I know, I may be alone on that one), makes it pretty clear to me that this surveillance is not Constitutionally valid. And no, I do not blame Bush for that, at least not entirely. he is using a questionable method, but he didn't create the hole in the first place.

 

Very interesting stuff.

[FlaSoxxJim]

There, I think I've gone through this issue, and man I need a break.

 

We all need a break after that.

 

Seriously, you should tighten that post up just a bit, link it to the NR piece and submit it as a diary on DKos. I didn't see anybody touch on it there, and in fact didn't even know about the article until YAS posted it here today.

[Balta1701]

We all need a break after that. 

 

Seriously, you should tighten that post up just a bit, link it to the NR piece and submit it as a diary on DKos.  I didn't see anybody touch on it there, and in fact didn't even know about the article until YAS posted it here today.

Let's see, today, I woke up, did the week's laundry for the Fiancee and me, made dinner, gave self a haircut, cleaned up after the haircut, shampooed the carpets, had lunch (technically it was also breakfast), biked in to school, checked on the experiment I've had sitting at 1350 degrees C and 3000 atmospheres pressure since Friday, came back to the computer, did that post, spent 2 hours sorting half-millimeter sized mineral grains into small piles, biked home, finished off dinner, ate dinner, spent time with Fiancee, and finally got back on here.

 

It's on my list of things to do.

 

[Balta1701]

Wow.  This is great - its like we got free use of a law clerk for this discussion!  Thanks for reviewing the full decision.

 

That statement about the 4th amendment gets to the heart of the opinion I expressed on this issue when it first came out, but goes even further in stating that the FISA warrants don't meet Constitutional test.  Fascinating.

 

That combined with the failure in keeping branch checks in place (I know, I may be alone on that one), makes it pretty clear to me that this surveillance is not Constitutionally valid.  And no, I do not blame Bush for that, at least not entirely.  he is using a questionable method, but he didn't create the hole in the first place.

See, I actually had a slightly different reaction when I was going through the thing. My reaction is that Bush's surveillance outside of FISA may or may not be constitutionally valid, we don't know. We can infer from logic that it must not be, but we can't prove it.

 

After that whole mess earlier, I think I managed to get a better understanding of what exactly the FISA court is designed to do. As both the Truong case and that COR review state, the President has full authority to engage in wiretaps without a 4th amendment warrant if it involves a foreign intelligence agency. Now, if he's wiretapping a foreigner in this country, there's clearly no constitutional issue, as that person isn't granted 4th amendment rights. But with a U.S. citizen, there could be an issue...as without FISA, there is no means through which to determine whether or not there is a legitimate national security concern which could justify the wiretaps.

 

This fact is why FISA is not in opposition to the Truong decision, and why it puts no additional limits on Presidential power - the President still has every ounce of power he had beforehand to engage in wiretaps outside the 4th amendment if they are for national security purposes. All the FISA courts do is determine whether or not there are legitimate national security purposes for the wiretap, and if there are, the President can authorize a wiretap outside of the 4th amendment.

 

Therefore, if Mr. Bush is engaging in wiretaps without FISA approval, we have no means to test whether or not those wiretaps are actually constitutional...the job of the FISA court is to determine that. Logic tells us that if Bush is wiretapping without FISA approval, they must be some sort of taps that are unconstitutional, because otherwise the FISA court would approve the tap. But aside from that statement, I have no further proof to offer about the constitutionality.

 

However, despite the fact that I cannot prove the searches to be unconstitutional...the searches are being done in a fashion which does not have FISA approval. In that case, they are in breach of the FISA law. I don't exactly see where there is a hole. A hole could have been created through simple means - challenging the offending provision of FISA in court and following up on claims of unconstitutionality (is that a word? Yow). But they didn't do that. And that, I think, is the real problem.

[YASNY]

However, despite the fact that I cannot prove the searches to be unconstitutional...the searches are being done in a fashion which does not have FISA approval.  In that case, they are in breach of the FISA law.  I don't exactly see where there is a hole.  A hole could have been created through simple means - challenging the offending provision of FISA in court and following up on claims of unconstitutionality (is that a word?  Yow).  But they didn't do that.  And that, I think, is the real problem.

 

I'll be honest with you Balta, some of what you put together is a little over the top for me. The legal terminology and jargon is a bit difficult for me to follow. However, in the paragraph quoted above you state the searches are in breach of the FISA law and therefore illegal. You also still question the constitionality of them. Yet, if you go back to the York article, it states...

 

And then the Court of Review did one more thing, something that has repercussions in today's surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else.

Edited March 22, 2006 by YASNY

[YASNY]

We all need a break after that. 

 

Seriously, you should tighten that post up just a bit, link it to the NR piece and submit it as a diary on DKos.  I didn't see anybody touch on it there, and in fact didn't even know about the article until YAS posted it here today.

 

I heard York 'guesting' on radio show that was being played as I was driving through Arkansas at about 6:30 Thiursday morning. I believe the shows host was named Bill Bennett. I had never run across this show before then. I committed York's name and publication to memory so I could follow up on what I heard. Tuesday morning while at work, I found the article and read it. I wasn't aware of any of this information prior to that radio talk show. However, I always believed Bush simply HAD to have legal justification for his actions, but I had never heard what that justification might be. The Democrats have been circling Bush like a pack (school? herd? pride? ) of sharks since the 2000 election and he could not risk doing intentionally something illegal or unconstitutional given that political environment.

[Rex Kickass]

*Totally off topic sidebar*

 

Is that the "Morning in America" show? There was some controversy with that show about a year ago IIRC, when Bill Bennett, former Education czar for Bush 41, made some statement that the crime rate would go down if we aborted every black child to be born.

 

He was lamely trying to make a point from the book Freakanomics - which the author Stephen Levitt then refuted and explained that Bennett missed the point. Tons of allegations of racism and such. Which was, IMHO, kinda unfounded

 

Bill Bennett also wrote The Book of Values. And he loves his slot machines. A few years ago, it was revealed that the guy who made a living for nearly a decade as America's moral guidepost had lost over 750,000 dollars gambling over a couple year period. There was much controversy over that too. Which was, IMHO, kinda unfounded too.

**Back to topic at hand**

 

You made a couple points here that I want to address.

 

This guy is claiming that the President has the inherent authority to do any kind of surveillance that he sees fit. The nature of this program, from what I understand, is that individual cases of surveillance are not being decided upon by the President, regarding US Citizens, but rather by shift supervisors at the NSA. The program was decided upon by the President. It is, by his own admission, in direct violation of the FISA law. If there is a legal justification of the wiretapping that he's doing, he needs to establish that legal justification of the program at large prior to establishing the program. This COR program doesn't really seem to do it. If there is a legal justification of the wiretapping he's doing, why is there a push by a GOP led Congress to make it "legal" now?

 

YAS, you are absolutely right that there are some Democrats who never accepted the legitimacy of the Bush presidency and were always out to get him. Just like there were some Republicans who felt the same regarding Clinton and were drafting articles of impeachment for him as early as 1993. But for the most part, this was not the case. However when scandal after scandal seems to pop up, and a Republican led Congress won't even investigate, it tends to invoke different reactions in people. Some see there being no problem. Others see it as indicative of a larger problem with the party in power.

[Balta1701]

I'll be honest with you Balta, some of what you put together is a little over the top for me.  The legal terminology and jargon is a bit difficult for me to follow. However, in the paragraph quoted above you state the searches are in breach of the FISA law and therefore illegal.  You also still question the constitionality of them.  Yet, if you go back to the York article, it states...

Ok, this hits right at the key point, so I want to make it totally clear where Mr. York is misunderstanding the point of the document here. The phrase "Inherent authority" only appears 1 time in this document, so it's easy to see which clause he is referring to, and his interpretation of it just isn't what the full document indicates. Part of this clause I excerpted in my first post, here's how it fits in.

 

Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. 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.26 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.

Ok, now again here the key point is this one...when the document refers to "Warrantless searches" it is not in any way, shape, or form, referring to a FISA warrant. It is referring to a warrant under Title 3 of the U.S. code, a search warrant as outlined in the 4th amendment to the Constitution.

 

When a search is done with a FISA warrant, it is done outside of the 4th amendment. Hence, any FISA search which takes place with a FISA warrant would be "Warrantless surveillance" by the definition in this document.

 

This document, as did the Troung case, say that the President has the authority to coonduct searches in national security cases without obtaining a warrant which would satisfy the 4th amendment. What FISA does is something different...instead of satisfying the 4th amendment, it allows for a mechanism through which the determination of a national security case can be made.

 

In other words, FISA does not at all restrict the President's constitutional ability to conduct a wiretap without a warrant in a national security, exactly as this document says. What Mr. York is missing though is that a FISA warrant is different from a 4th amendment warrant. A FISA warrant is used in determining that a case does fit within the President's authority to conduct searches for National Security.

 

FISA only limits the President's authority to conduct warrantless searches where there is no national security justification. If a FISA warrant is denied, it means that the FISA court judged that there was no national security concern to justify the President using his power to search outside the 4th amendment. FISA therefore does not limit the President's national security powers at all...it limits his ability to use searches outside of national security concerns, something which is not given to the President in the constitution.

 

This is the flaw Mr. York is making. Either deliberately or accidentally, he is taking the term "warrantless surveillance" to apply to surveillance without a FISA warrant. This is incorrect, and it is not the way the document talks. "Warrantless surveillance" as defined by the document is not surveillance without a FISA warrant, it is surveillance without a 4th amendment criminal warrant, with or without a FISA warrant. It does not speak to any questions of surveillance without a FISA warrant.

[YASNY]

Considering that FISA tried to circumvent the Patriot Act by adhereing to the old Janet Reno standards, and this was challanged before the COR by the administration. The COR ruled in agreement with the administration. So, what exactly has Bush done that is illegal?

[BigSqwert]

Anyone catch Feingold on Daily Show last night? Good interview.

[NorthSideSox72]

Considering that FISA tried to circumvent the Patriot Act by adhereing to the old Janet Reno standards, and this was challanged before the COR by the administration.  The COR ruled in agreement with the administration.  So, what exactly has Bush done that is illegal?

He has extended his supposed war power authority for surveillance beyond what any judicial body has said is allowed. The COR itself is part of the problem. Bush and the administration are certainly not the only ones to blame here - but they are part of the whole mess.

[YASNY]

He has extended his supposed war power authority for surveillance beyond what any judicial body has said is allowed.  The COR itself is part of the problem.  Bush and the administration are certainly not the only ones to blame here - but they are part of the whole mess.

 

The COR is a judicial body.

[NorthSideSox72]

The COR is a judicial body.

No, its a joint branch body. I realize I may be the only one here who sees the important distinction between the two, but I stand by it.

[YASNY]

No, its a joint branch body.  I realize I may be the only one here who sees the important distinction between the two, but I stand by it.

 

It's made up of three federal judges, is it not?

[Balta1701]

Considering that FISA tried to circumvent the Patriot Act by adhereing to the old Janet Reno standards, and this was challanged before the COR by the administration.  The COR ruled in agreement with the administration.  So, what exactly has Bush done that is illegal?

The COR ruled that the Administration had the right to search under the new Patriot Act standard, of "Significant" reason rather than "Primary". In other words, in the case where the permission for the Tap was denied, the tap was now allowed.

 

In other words, any time the Bush Administration went to the FISA court with something that had a "Significant" foreign intelligence purpose, FISA should now approve it.

 

Presumably, what they've done that's breaking FISA is collecting data that does not have any "Significant" foreign intelligence purpose. Otherwise, they could go to the FISA court and get a warrant, and if it was denied, they could challenge it to the COR again. Either that, or they're just really really lazy and have a lot of contempt for the law and they just decided to break it anyway.

[YASNY]

The COR ruled that the Administration had the right to search under the new Patriot Act standard, of "Significant" reason rather than "Primary".  In other words, in the case where the permission for the Tap was denied, the tap was now allowed.

 

In other words, any time the Bush Administration went to the FISA court with something that had a "Significant" foreign intelligence purpose, FISA should now approve it.

 

Presumably, what they've done that's breaking FISA is collecting data that does not have any "Significant" foreign intelligence purpose.  Otherwise, they could go to the FISA court and get a warrant, and if it was denied, they could challenge it to the COR again.  Either that, or they're just really really lazy and have a lot of contempt for the law and they just decided to break it anyway.

 

I still don't grasp your point. If the COR was put in place to address such issues and they ruled in favor of the administration, then by definition, they are within the law.

[Balta1701]

I still don't grasp your point.  If the COR was put in place to address such issues and they ruled in favor of the administration, then by definition, they are within the law.

Yes, the searches the COR ruled on are within the law. 100% correct.

 

The COR never was asked to rule on the searches outside of FISA that Bush is doing. The COR was only asked to rule on a search request which came before the FISA Court and was incorrectly denied. It was not asked to do any review on the program outside of FISA, nor would it have any ability to do so given that Mr. Bush is doing the wiretaps outside of FISA.

[YASNY]

Yes, the searches the COR ruled on are within the law.  100% correct.

 

The COR never was asked to rule on the searches outside of FISA that Bush is doing.  The COR was only asked to rule on a search request which came before the FISA Court and was incorrectly denied.  It was not asked to do any review on the program outside of FISA, nor would it have any ability to do so given that Mr. Bush is doing the wiretaps outside of FISA.

 

Wait. I thought this whole thing, the problem, was that Bush disregarded and circumvented FISA to do these warrentless taps. Now, when it appears he followed the law regarding FISA, then FISA has nothing to do with it. I'm sorry Balta, but I think you are just talking in circles. Maybe one of the other Bush detractors can explain it to me.