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| quote: | Originally posted by Q5echo
you're right. i'm sorry. i gave you the wrong link. i'm not on my computer i'm at work.
down a little more than halfway on page 48 it unequivocally states the FISC's opinion on where and how the Exective draws his power and how no court can usurp it from him.
"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
26 Although the plurality opinion in Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (en banc), cert. denied, 425 U.S. 944 (1976), suggested the contrary in dicta, it did not decide the issue.
mechanism that at least approaches a classic warrant and which therefore supports the
government’s contention that FISA searches are constitutionally reasonable."
>LINK<
this is what is called a sound legal foundation. so sound when the ACLU appealed the decision to the Supreme Court, the SCOTUS chose not to intervene. this is exactly why the Dems caved last week. this is exactly what shut Fiengold up. this is why the "worst President in history" continues to get the things he wants in order to achieve his primary objective. protecting the American people. |
I was wondering if you were going to draw this out. But before I discuss this, do you have any supporting evidence that this was indeed presented to Feingold or any Democrat as evidence in order to "shut them up" and get them to go along with these vast sweeping powers of the Executive branch? I'm really curious if we're ever going to go past your mere speculation on that part, because you're pretty convinced that this is what got them to quiet down. Any evidence will do.
And by the way, Feingold has done anything but shut up on this issue, so you might be thinking of another Senator or Congressman.
Second, the case that you are bringing up to supposedly support the President's actions to circumvent FISA actually doesn't help you much, especially in lieu of more current events. I wonder if you actually examined it closely? Because if you did, you'd see this on page 14 and 15:
| quote: | | The origin of what the government refers to as the false dichotomy between foreign intelligence information that is evidence of foreign intelligence crimes and that which is not appears to have been a Fourth Circuit case decided in 1980. United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980). That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power. |
In fact they re-emphasize this point again just two sentences right in front of the quote you cite:
| quote: | We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the
foreign affairs of the United States. |
Now we've argued this before about Truong, and I'm pretty certain that I've pointed out this fallacy as well. If this isn't your argument, fine, but I still wanted to emphasize the point about this anyway (just in case).
What the FISA court of review is doing here is laying out the fact that the President does enjoy certain Executive authority given to him by the Constitution where there isn't a given statute limiting that authority. And this line you cite which is nothing but dicta on extraneous material and is by no means precedent like district court/court of appeals/SCOTUS rulings are (like Hamdan, or even Youngstown which I haven't cited yet), was stating that FISA can't encroach on certain powers of the President. In no way was Judge Silberman here trying to examine precisely what those executive powers are or whether or not FISA encroached them. You really should read the entire document and paragraphs all around the quote in full to get the full understanding of the context in its entirety. And besides, the court of review's objectives weren't even examining whether or not FISA encroaches on Bush's executive power in the first place, but was instead dealing with the question of whether FISA gave Bush too much power. They decided it didn't, BTW.
In any case a decision by a U.S. District Court in September 2007 had found that the new Patriot Act enacted standards for FISA were unconstitutional, thereby directly disagreeing with the opinion of FISA court of review that you cited:
http://www.ord.uscourts.gov/rulings...1427Opinion.pdf
Judge Aiken sided with the older Fourth Circuit Ruling and expressly rejected the view of the FISA Court of Review:
| quote: | | (FISA as amended by the Patriot Act "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment," |
And more specifically as she addresses that court of review:
| quote: | | Finally and perhaps most significantly, In re Sealed Case ignores congressional concern with the appropriate balance between intelligence gathering and criminal law enforcement. It is notable that our Founding Fathers anticipated this very conflict as evidenced by the discussion in the Federalist Papers. Their concern regarding unrestrained government resulted in the separation of powers, checks and balances, and ultimately, the Bill of Rights. Where these important objectives merge, it is critical that we, as a democratic Nation, pay close attention to traditional Fourth Amendment principles. The Fourth Amendment has served this Nation well for 220 years, through many other perils. Title III, like the Supreme Court's pronouncements in Katz and Berger, recognizes that wiretaps are searches requiring fidelity to the Fourth Amendment. |
And rightfully so.
Another part in that Court of Review document I found rather interesting on page 15:
| quote: | | In one of the first major challenges to a FISA search, United States v. Megahey, 553 F. Supp. 1180 (E.D.N.Y. 1982), aff'd sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984), the district court acknowledged that while Congress clearly viewed arrest and prosecution as one of the possible outcomes of a FISA investigation, surveillance under FISA would nevertheless be “appropriate only if foreign intelligence surveillance is the Government’s primary purpose.” |
Oversight is mandated by FISA in order to determine what Bush's primary purpose is when it requests surveillance. That's exactly what FISA was created for. Bush, however, bypassed FISA, and neither FISA nor anyone else fully knows that Bush's actions were “appropriate only if foreign intelligence surveillance is the Government’s primary purpose.”
You have absolutely nothing to assure anyone that this was what Bush had done for this particular purpose. FISA had no knowledge of his actions because he gave them the finger, and then he proudly admitted that he bypassed it. Well, Q. despite all of what you've shown us thus far, the one problem you will continue to run into is the fact that Bush circumvented FISA, which was in fact a Congressional statute put forth for our Executive to follow. And according to all precedent laid out so far in such decisions like Hamdan as well as Youngstown (which I think you need to familiarize yourself with a bit better), our president simply cannot do that. He has no inherent authority of any sort to bypass laws laid forth by Congress such as FISA. The Youngstown v. Sawyer decision specifically addresses the fact that the President does NOT have to right to exercise that executive inherent authority if it bypasses Congressional law, which is exactly what FISA is:
http://caselaw.lp.findlaw.com/scrip...l=343&invol=579
| quote: | right now i'm going to say Hamdan had different legal ramifications as to the extent and detail of Executive power.
i'm looking into it. |
You do that, but I contend otherwise with evidence to support my contentions.
___________________
Whence September dusk grows crisper still,
with leaves all crimson conquered,
I yearn to shout,
and dance about,
and stick pickles in my honker...
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