Your statement that Clinton “didn’t notify anyone” is silly. Have you not seen the notice in the Federal Register Drudge dredged up?

Bush has admitted to spying on communications between citizens and non-citizens, and there has even been an admission that some purely domestic communications were “accidentally” monitored. Since Bush chose to operate without any oversight (violating the principle of checks and balances), we don’t really know what he did with NSA. It’s possible he has done nothing worse than avoid filing paperwork, but it’s also possible he used NSA to spy on American citizens without judicial checks. It will take an investigation to clear that up, especially since the paper trail may be incomplete.

When Clinton was president, after the passing of FISA, he used a warrantless search to capture Aldrich Ames. He believed he had the power, as the head of the Executive Branch, to do this. He didn’t notify a FISA court. He didn’t notify anyone. He didn’t ask for an after-the-fact notification.

If you are an upright kind of guy, you’ll be calling for all evidence on Aldrich Ames to be thrown out. And calling for an investigation into Clinton’s doings.

With this said, Carter, Reagan, Bush(41), Clinton, and Bush(43) all believed they held the power to conduct warrantless searches, without the 72 hour notification period. Nothing has thrown out their warrants, ever.

People pulling this out now are trying to muddy the political waters. They are trying to shake a sitting president during the time of hostilities to sell a book and make hay for the ‘06 election. This was illegal for any other president since FISA passed. Why are you asking the question now? I believe it is politically motivated.

What part confuses you? Bush believed he had this power, believed that court cases backed him up, and believed what other presidents said about having this power. Where do you get that he ‘deliberately evaded’ requirements he thought didn’t apply?

Logic? How can you deliberately evade something you don’t think applies?

You’re ignoring the fact that the 2002 case explicitly left unanswered the question of whether or not FISA changed the powers of the CiC. IOW, it simply ruled that before FISA, the president had such powers, and didn’t address whether FISA changed that equation. So the 2002 ruling is not the slam-dunk you seem to think it is.

Once again, it comes down to the what I said in the comment Uncle excerpted.

The answer according to previous administrations, previous AGs, and most legal scholars is that there is really no prosecutable offense here. I agree, as I post on my blog today, that you are holding a line I like. You are for limiting government. In this specific case, however, the questions are:

1. Is the president in a prosecutable violation?
2. Is the president in the wrong?
3. Is the president expanding government powers?
4. Is the president violating protections?
5. Is the president exceeding his power?

etc, etc, etc. I agree with you on principle that the president did not follow the FISA procedure. I agree with you that warrantless searches of Americans is generally not a good thing. I do not agree that he stepped in it. This isn’t like telling fibs about sex under oath. The legal area of confusion will have to be mapped out.

I don’t think said searches are inherently unconstitutional because they are reasonable in given circumstances. Said searches do, I think, violate FISA which was established to balance security needs with liberties.

More links:

http://www.washingtontimes.com/commentary/20051228-095455-1015r.htm

The legislation is not the controlling authority. The court precedent is.

As yet, no one has shown me the appropriate court precedent. CY tried in comments but said precedent pre-dated FISA by 6 years and, therefore, isn’t applicable. The JD doesn’t get to peice together a bunch of court precedents and dictate how that applies to FISA. That’s up to a court. Bush has stepped in it this time and it needs to be investigated and brought before a court.

And, for the record, we have not declared war so I’m not buying the war time powers argument.

I don’t understand whether this is willful misinterpretation on the part of the left to make this an issue, or whether they are unintentionally misinterpreting it because they are in the “We Hate BUSH” cloud.

The legislation is not the controlling authority. The court precedent is.