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More on the warrantless wiretapping

United Press International:

U.S. President George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.

So, because the after the fact non-protections were inconvenient, he decided to merely skip them. In other words, the review process to ensure that said taps passed muster was subverted. Not looking good.

A review of Justice Department reports to Congress by Hearst newspapers shows the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.

Not unexpected given the attacks. But:

The 11-judge court that authorizes FISA wiretaps modified only two search warrant orders out of the 13,102 applications approved over the first 22 years of the court’s operation.

But since 2001, the judges have modified 179 of the 5,645 requests for surveillance by the Bush administration, the report said. A total of 173 of those court-ordered “substantive modifications” took place in 2003 and 2004. And, the judges also rejected or deferred at least six requests for warrants during those two years — the first outright rejection of a wiretap request in the court’s history.

Wow. That’s quite a difference in terms of volume. Of course, as said before, it’s not unexpected since, as they tell us, 9/11 changed everything.

21 Responses to “More on the warrantless wiretapping”

  1. JJ Says:

    A link.

    Apparently, the Constitution allows it. And, the Bill of Rights doesn’t prohibit it. Notice the statement about “unreasonable”:

    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.

    By all accounts, Bush has done nothing wrong, unless someone is interested in making up law or changing the Constitution. I’m one of the most Constructionist people you’ll ever meet, and I have no problem with him using his Constitutional authority to monitor the war-time transmissions of enemies. The courts have held that warrantless searches of domestic communications are illegal. The courts have also held that warrantless searches of international communications, particularly when suspected enemies are involved, are legal. The Founders saw the need for this, also, it seems.

    I always thought that 9/11 changed everything, but only toward more security? Why would 9/11 make it harder for Bush to get a FISA warrant? Doesn’t make sense…

  2. SayUncle Says:

    The congress established a procedure to ensure that said searches were not unreasonable. Bush has bypassed that procedure.

  3. JJ Says:

    Let me know what procedures you are talking about. FISA allows the AG to approve this activity. The activity in this case is foreign intelligence, solely within the powers of the President and protected from Congressional meddling. One liberal complained that the President authorized this, and not the AG. Do you think that argument holds water?

    Just one question, though: Are you upset about the President monitoring the communications of suspected terrorists, or about the warrantless searches of potential terrorists? I’m not sure where your complaint is.

    Your complaint can’t be about the Constitution, because the Constitutional allows this. Your complaint can’t be about some perceived violation of FISA, because FISA allows this. Your complaint can’t be about the Bill of Rights, because the Bill of Rights does not prohibit this.

    Are you upset that Bush appears to have thumbed his nose at Congress?

  4. SayUncle Says:

    I suggest you search the archives for FISA, as I already have addressed your questions. FISA allows tapping but requires getting an after the fact authorization.

    Im not sure where your complaint is.

    My complaint is that the powers-that-be need to play by the rules and not subvert them when they’re inconvenient. Those rules were put in place to ensure that people were secure in the persons, papers and effects from unreasonable searches and seizures. These rules require after the fact authorizations which serve as a review. I’m not saying they can’t search when there’s a threat but they need to follow the rules and be held accountable to review. If they are not, they can just search anyone willy-nilly and no one would ever know.

  5. JJ Says:

    It’s funny that you will accuse the Bush Administration for not playing by the rules when every legal scholar, Constitutional scholar, and past-AG has said it isn’t illegal. Where do you get your information that he isn’t playing by the rules? Is it purely a 4th Amendment complaint? He’s played by the rules. I’ll look back at what you’ve said previously, but I don’t think it will be backed up by current, active, or confirmed court decisions.

    I know Wikipedia is worth about as much paper as it is printed on, but this one isn’t bad, and not only because it agrees with me.

    So, if I find support in court decisions, the legislation, the Constitution, and legal writings, where do you get the idea that he isn’t playing by the rules?

  6. SayUncle Says:

    You keep coming back to the same talking point. I’ve not addressed the constitutionality in this instance nor what courts have ‘backed up.’ The question is simple:

    Did Bush bypass the laws established by Congress?

    And that answer is yes. He bypassed the review process of getting after the fact authorization. He’s even said as much. His argument, however, is that it is legal and that has yet to be decided by the courts.

  7. JJ Says:

    Okay, which is the ultimate rule: Congress or the Constitution?

    I believe it is the Constitution, and that any Congressional action which attempts to amend the Constitution is illegal. If what Bush did is specifically allowed by the Constitution, then any law that holds what he did as illegal is unconstitutional.

    I understand that you are upset that Bush may have thumbed his nose at Congress. Fine. It may be that you like the authorization process. If, however, that congressional action and the authorization process are unconstitutional, then there is no legal recourse for those people who like the authorization process. The ultimate law is the Constitution.

    The question isn’t whether he bypassed Congress. It is whether he violated his Constitutional authority. It is whether Congress exceeded their Constitutional authority by passing this limitation of the Constitutional authority of the president.

  8. SayUncle Says:

    Obviously, the constitution is the rule but Congress (and the entire government) disagrees, apparently.

    Show me specifically in the Constitution where it says george bush may wiretap people without any oversight.

    I understand that you are upset that Bush may have thumbed his nose at Congress

    You understand wrong. The authorization process is a joke. I mean really, a warrant after it’s done? Feh. What I don’t like is unchecked power (say, is that in the constitution?) and doing these things without a review process is exactly that. Congress (you know, the reps of the people) decided that they would incorporate such a check and said check has been followed for a while now.

  9. JJ Says:

    Constitution, Article II, Section 2:

    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 Offenses against the United States, except in Cases of Impeachment.

    This confers upon him sole war-making power (not war-declaring power). The surveillance in this issue was in line with the President’s Constitutional power to make war. This power has been further supported by numerous judicial decisions allowing him, as part of this power, to conduct surveillance in the process of conducting his war operations.

    You may not agree that this act is a reasonable application of this power. You may not agree with the court cases supporting this aspect of his war-making power. You may not agree that any foreign surveillance that includes a local belligerent is legal. You may not agree that the government should have this power, in general. I understand. I don’t want unfettered government power, either. This power, however, has been specifically deemed constitutional.

    This isn’t like a perceived violation of the non-power powers in the Bill of Rights. He’s not conducting an unreasonable search and seizure (isn’t that Amendment specifically covering criminal investigations?). He’s attempting to monitor foreign agents. The rules of local criminal prosecutions and the rules of war-making differ on many points.

    I personally don’t believe we should use criminal statutes and prohibitions while making war. I doubt you believe we needed a court order to kill people on the battle-field, to break the Enigma code, to monitor Japanese fleet transmissions, or to review documents captured after a battle. Why is this war-time surveillance being elevated to an unreasonable level?

  10. SayUncle Says:

    Sorry, but searches and siezures are covered elsewhere. All that says is he’s the CiC and he can pardon people.

  11. JJ Says:

    Okay, what do you consider are the powers of the Commander in Chief? Is he just a figurehead? Does the CiC have the power to make war? If so, then I’m correct. If the CiC doesn’t have the power to make war, we’ve got bigger issues.

  12. SayUncle Says:

    What I think are the powers are irrelevant to the discussion. If the president can disregard the law, anyone can. If he thinks congress overstepped its boundaries, there is a whole other branch of government set up to address the issue.

    And have we declared war on anyone?

  13. JJ Says:

    Obviously, what you think are the powers are relevant, considering you disagree with his application of his powers. I’m not arguing in front of a court. I’m discussing this with you. I am interested in what you think are appropriate powers of the CiC.

    The courts, the whole other branch set up to address this issue, have declared that this is a power of the CiC. There is a long-running dispute between Congress and the Executive Branch regarding the powers during war. At this time, the judicial pendulum is well on the Executive side. The courts have found that warrantless searches for foreign intelligence do not violate the law. He did not disregard the Constitution. You have claimed many times he is in violation of some law, but no one has proven this. As a matter of fact, the weight of the evidence supports him. Only some Democratic carping about wire-tapping citizens has been heard. Stare decisis supports the president, and only some questionable complaints by the left weighs against him. The post-surveillance authorization will have to be tried in a court of law. I support his decision to ignore this extra-constitutional regulation, if he did.

    I think I misunderstood your terse dismissal. You asked for the section in the Constitution that gives this power to the president. I gave it to you. The president, in this case, was acting in his Constitutional role of CiC by monitoring enemies of the nation. He has been given this power by the Congress in the declaration of war on terrorism post 9/11. When you said:

    All that says is hes the CiC and he can pardon people.

    were you saying that the president isn’t acting as the CiC, or that the CiC doesn’t have the power to monitor the communication of foreign belligerents?

    Congress declared open season on terrorists, have declared it a War on Terror, and have invested in the president the authority to use any force necessary in carrying out this operation. There is no doubt. If you want me to give you a link to the appropriate legislation, I will.

    I do not believe that the CiC powers extend to domestic, criminal surveillance. The NSA is not monitoring domestic communication between me and my Aunt Bessie. It is monitoring traffic going to suspected terrorist elements. I believe, and many others believe, that this is a valid use of the CiC war-making powers.

    I appreciate that you are standing a precarious post trying to prevent some lefty nutjobs from taking away our God-given rights and our only means of protecting those rights. I don’t believe this is a case where the government is acting outside of its constitutionally-defined roles.

  14. SayUncle Says:

    have declared that this is a power of the CiC

    Where? The courts have said spying for foreign intelligence is OK. However, there’s a line in the sand regarding when said gathering involves US Persons. I have yet to see any thing intimating the court’s have thrown out the requirement that surveillance of US persons can be conducted sans authorization.

    And, a brief civics lesson, our country is governed by laws other than what is written the constitution. Said laws are passed by the congress and are required to be followed. Not everything that governs is contained in the constitution. Period. Now, that said, Congress enacted a law to balance the need for security with fourth amendment protections. That law stands until a court says it doesn’t. Laws that don’t stand are those that violate the constitution. The president is required to follow those laws. Interpreting the law differently or ignoring it because it’s inconvenient (practically or politically) is not an excuse to break it. When electronic surveillance is conducted on US persons, an authorization (or after the fact warrant) is required by law.

    The fact is, bush did not seek this authorization because it was inconvenient.

    Perhaps I’ve made my point more clearly now?

  15. SayUncle Says:

    And congress has not declared war since WW2.

  16. JJ Says:

    I don’t think your point has any merit. In this case, the target of the surveillance is considered a ‘foreign agent’. Carter EOs support this decision, Clinton acts during the Aldrich Ames issue (very much concerning a citizen) and the subsequent decisions of the courts, support Bush’s decision. Warrantless searches are allowed:

    http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html (The most important decision)

    Another brief civics lesson, the interpretation of the laws are dependent upon legal findings of our courts and precedent. Precedent in this case, allows this activity. In both domestic and international law, a precedent generally carries more weight than the legislation. In international circles, some countries claim rights to an important straight. They will challenge any passing ship to request permission to use a straight. If the ship captain requests permission, that request is used in an international court to validate the claim of the petitioning country. In domestic law, a court decision allowing for an act as an exception or addition to a law is considered an amendment to the law. Since warrantless searches have precedent, they are considered legal. Bush didn’t interpret the laws differently, he relied on precedent.

    The fact is that Bush did not need to seek authorization because warrantless searches to acquire foreign intelligence is allowed.

    The Congress did pass legislation on September 18, 2001, allowing the President to:

    “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

    I know, I know, this isn’t technically a declaration of war. Tell that to the Jihadists.

  17. SayUncle Says:

    I’ll have to read the opinion later.

  18. robert Says:

    Sounds like the courts finally work up.

    That said, if they are going to do grotesquely stupid things…like put babies and grandmoms on the no-fly-list, (and not immediately fix that problem), then I am not going to support wiretapping by folks who are obviously willing to be idiotic.

  19. TriggerFinger Says:

    Wiretapping…

    I’ve been avoiding the NSA wiretapping issue because it’s fairly
    complex, and my attention has been demanded on other things lately (and
    will likely get a lot worse soon, as the holidays end and work ramps up
    again). However, this post at SaysUnc…

  20. Blounttruth Says:

    I think the point is being missed here. If in fact the Bush administration allowed wire taps of ONLY suspected terrorists in this time of war then he does have the power to do so. The issue that everyone is waiting to know is did they monitor ALL calls from the US to foreign soil?

    When the report first came out it stated that the administration had OK’d wiretaps and listening ins of all calls leaving the US. The next report later the same day from the pro-Bush crowd then started saying that it was suspected terrorists ONLY, and then even later it was stated that only those with direct ties to Al Queda had been listened to.

    In a time of war the president has certain powers that he can use to go above and beyond the normal set laws, spying and wire tapping terrorists would certainly be one, however; listening in on every call (or computer monitoring for key words) for a citizen calling family in London is certainly not permitted in any act without a warrant. So the question that stand is this, did Bush pursue wire taps on only suspected terrorists or did he have all calls going out of country monitored? Big difference and this is what the hearings will be about. As a Bush supporter in the early stages of his presidency, right up until he declared himself king and above all laws I certainly hope that he followed the law. The main issue with this is that we will probably find out who shot Kennedy before the information of exactly who was monitored comes out, and at the very least long after he has left office.

  21. Bob R Says:

    jj: “Okay, what do you consider are the powers of the Commander in Chief?”

    Article 1, Section 8:

    The Congress shall have Power To …
    To make Rules for the Government and Regulation of the land and naval Forces;
    ….
    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Looks to be like the u.S. Constitution says that the powers of the Commander in Chief are what Congress says they are by way of legislation.

    See also Article 2, Section 3:

    …. he [the President] shall take Care that the Laws be faithfully executed, …

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