Maybe so.

Sorry if I took it the wrong way.

The point is that the case law overwhelming supports the President.

If it does Art, I've yet to hear about any of it. You've cited case law which supports an inherent authority for the president in the absence of clear statutory guidence. Can you provide case law that has upheld the power of the president to ignore an act of Congress? From your last sentence it appears you are familiar with Youngstown Co. v. Sawyer, and I presume you are aware of how that case was decided.

Here is a relevant section from the majority opinion (my emphasis added)

"Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The [343 U.S. 579, 588] [/url] first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ." After granting many powers to the Congress, Article I goes on to provide that Congress may "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."

The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress - it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control. "

And since Jacksons concurring opinion keeps coming up, let's look at the actual quote:

"3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] [/url] the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system. "

If the Court were to allow Bush to wiretap American citizens without warrants, it would necessarily have to declare FISA unconsititutional according to this logic.

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"As is typical of such wartime operations, the NSA program was classified at the highest level of secret information. It was, nevertheless, completely different from the kind of rogue intelligence operations of which the Nixon era is emblematic (though by no means the only case). The Bush administration internally vetted the program, including at the Justice Department, to confirm its legal footing. It reviewed (and continues to review) the program every 45 days. It briefed the bipartisan leadership of Congress (including the intelligence committees) at least a dozen times. It informed the chief judge of the federal Foreign Intelligence Surveillance Court (FISC), the tribunal that oversees domestic national-security wiretapping. And it modified the program in mid-2004 in reaction to concerns raised by the chief judge, national-security officials, and government lawyers."

National Review online 1/30/06 issue

Old news and I dont care. The fact that certain members or Congress were informed, or that justice dept lawyers rubberstamped it doesn't change the Constutional issues.

And the FISC judge resigned over it.

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All of your quotes are good and they are relevant. They are not very analogous to the current situation though.

In the steel case, Truman tried to take over the steel mills on national security grounds. He stepped up to the court to make his case, and they didn't buy it. They didn't extend the concept of being Commander in Chief to seizing private property in such circumstances. That is pretty sound logic.

In this context, Bush is going to step up and defend the monitoring of international phone calls involving suspected foreign agents. We have cited lots of similar cases in lower courts along the way and the President has always prevailed with this argument, and most or even all of the cases have been unanimous.

Could the court say that monitoring foreign phones calls is more like seizing steel mills than not? I suppose they could. It would clearly depend a lot on the details of how the monitoring was done. It is pretty clear from the leaks that there were a lot of internal checks and balances inside the executive and consultation with the other branches. It would take a lot of inflated judicial egos to impose their legal expertise in the place of the commander in chief as to what is required to defend the country.

It is very straight forward to interpret the logic of the Constitution, FISA laws and the Use of Force Amendment together in a compatible fashion, much as the Supreme Court did with the Hamdi case. I am betting that is how it comes out, 9-0, if the case ever gets that far, which I don't think it will.

You shouldn't lose sight of the fact that we don't know the details of the monitoring either. It is very possible that the monitoring is not actually in violation of the FISA law. It is possible that it is being handled in such a way as to not have the target be any US Person as defined by the statute. In that case, FISA would not even apply. FISA doesn't apply if US Persons get swept up in the process of normal intelligence monitoring overseas.

Jackson's opinion is pretty good, and might well hold up though it does not qualify as precedent. He makes it clear that the President has authority in opposition to Congressional mandates, but he has to withstand cautious scrutiny. I don't see a problem meeting that scrutiny if the monitoring is anything like what I think it is.

We have cited lots of similar cases in lower courts along the way and the President has always prevailed with this argument, and most or even all of the cases have been unanimous.


No you have not cited any such cases, and until you do, you get zero credit for making remarks like these. Cite cases where the court has upheld the president's ability to ignore an act of Congress please, or stop claiming that you can do so.

You shouldn't lose sight of the fact that we don't know the details of the monitoring either. It is very possible that the monitoring is not actually in violation of the FISA law.

That's a new one, and no, that is not possible. The president has admitted to monitoring which is in clear violation of FISA.Jackson's opinion is pretty good, and might well hold up though it does not qualify as precedent. He makes it clear that the President has authority in opposition to Congressional mandates, but he has to withstand cautious scrutiny. I don't see a problem meeting that scrutiny if the monitoring is anything like what I think it is.

You're misreading completely. Again, the exact text says the President can act in opposition to an act of Congress only if he has inherent Consittutional power to do so and Congress lacks Consitutional power to forbid it. The scrutiny he is talking about is judical scrutiny - whether the juduciary will make such a determination.

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You shouldn't lose sight of the fact that we don't know the details of the monitoring either. It is very possible that the monitoring is not actually in violation of the FISA law. It is possible that it is being handled in such a way as to not have the target be any US Person as defined by the statute. In that case, FISA would not even apply. FISA doesn't apply if US Persons get swept up in the process of normal intelligence monitoring overseas.

You're right, we don't know the details. However, if this were the case the WH would be putting this out all over the place, saying "we didn't violate FISA because we only monitored foreign calls and a few US Citizens were inadvertently swept up ...". However, since the WH is not saying this, and is instead pushing the idea that the President can somehow act contrary to applicable federal law (under FISA it is a crime to wiretap US Citizens w/o a warrant issued by FISC), it seems highly unlikely that the scenario is as you have presented it.

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kangaroo -- please do not read or respond to any of my posts

In the various Process Matters threads I have cited Re: Sealed Case which in turn references other cases. These do not stand for the president stepping outside congressional authority, and I do not present them as such. They stand for the President, as Commander in Chief, having the authority directly from the Constitution to order surveillance.

I have also cited an excellent discusson with Cass Sustein, who is the distinguished Constitutional Law professor that you have called an idiot. Your label notwithstanding, he is a go to guy for Kennedy and the moveon.org crowd, so not really one you want to reject as a Bush apologist.

"the exact text says the President can act in opposition to an act of Congress only if he has inherent Consittutional power to do so and Congress lacks Consitutional power to forbid it." Yes, that is exactly my point. Congress has no power to forbid the President from acting as Commander in Chief.

To the extent that FISA seems to try to do that, it won't be allowed to be enforced that way, but would instead be interpreted differently. That call would be made by the judiciary. Bush would need to justify his position, but he can probably do that if previous surveillance cases are any indication.

It is very simple. If the President had authority from Article II before FISA, he had that same authority after FISA. No law changes the Constitution, no matter how you try to twist.

Similarly, if a citizen's Fourth Amendment rights precluded surveillance before FISA, they preclude surveillance after FISA as well.

If you really drill down into the FISA law, you find a definition of electronic surveillance. Part of the definition is that it targets United States Persons. It is not really clear that what NSA has done actually does that. I am not saying that NSA has not done it, nor that the case depends on it. I am only saying the operational details are very important, and we are not close to knowing them.

Fucking Christ Art...

In Re: Sealed Case affirmed the modifcations to FISA by the Patriot Act. It did not give any support to your idea that the president has the inherent authority to wiretap Americans in violation of an act of Congress. Why can't you get that through your thick skull? You can Brian286 get the LR Energizer Bunny award for thinking that repeating and repeating and repeating something will make it true.

Your "excellent discussion" with Cass Sustein is not case law.

So while claiming to have lots of cases which all support the president, you have produced only one singular case which is irrelevant. So you're a liar or have a terrible memory... either way I hope you're not surprised that people like me don't take your assertions at face value.

It is very simple. If the President had authority from Article II before FISA, he had that same authority after FISA. No law changes the Constitution, no matter how you try to twist.

It's not simple, despite your simplistic understanding of it. There is no explicit authority to wiretap American citizens without a warrant, but in the absence of statue, the courts show a lot of deference. In the face of an explicit law, the situation changes. Let's go back to Jackson again in Youngstown. Here's the situation when there's no guiding law (as was the case in Truong which was pre-FISA (and cited in In Re Sealed Case), as was the case with Aldrich Ames):

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3

Here's the situation when there is a contrary act of Congress, as in right now with FISA

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling [343 U.S. 579, 638] [/url] the Congress from acting upon the subject. 4 Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

The only way for a president to defy the an act of Congress is if Congress had made a law which unconsitutionally infringed on the President's consitutional authority. Not if the President really wants to defy an act of Congress... not if the President notifies a few members of Congress he's going to do it... not if his Justice Dept lawyers tell him it will be OK.

If FISA is consitutional, the President is breaking the law. Period.

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If FISA is consitutional, the President is breaking the law. Period.

The question, though, pertains to whether or not FISA can even restrict the president in the way that many on the left say that it does. That's not settled law, as yet. I'd say that a real question exists, once one looks at the issue dispassionately, as to whether there's even enough time (in the age of instant electronic communication, shifting cellular phone numbers, one-time 'shackle sheet'-style codes and other tools of the intel trade) to go to a FISA court in most, if not all, of these instances.

But, I agree with the statement in bold, given the qualifiers that I've laid out above.

T.

Congratulations. You are the first one who has been able to stop Art from using the annoying acronym, POTUS.

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You sir, are my new hero! - Trifan 11/13/2008

Casey, you are a wise man - blueraider_mike 11/13/2008

Casey, This is an astute observation. - Slowbern 11/17/2008

Would it be more accurate to say the following: "The President is breaking the law. It has not yet been determined whether that law is constitutional"?

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"Go yell at an M&M"

You mean that 72 hours after the fact isn't enough time to go to a FISA court? On what basis do you come to that conclusion?

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"Go yell at an M&M"

"I'd say that a real question exists, once one looks at the issue dispassionately, as to whether there's even enough time (in the age of instant electronic communication, shifting cellular phone numbers, one-time 'shackle sheet'-style codes and other tools of the intel trade) to go to a FISA court in most, if not all, of these instances. "

Which is why FISA provides for the govt to come to the court after the fact to get the warrant.

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Slowguy

(insert pithy phrase here...)

I will spare requoting RE: Sealed Case for the fifth time. I will only observe that your interpretation is not shared by any prominent legal authority that has offered a specific opinion on it. It has been cited as strong support for the President's legal position by many legal authorities and it is cited in the five page legal memo from the Whitehouse to the leaders of Congress.

No amount of quotation will change your mind though, so I won't bother. I do grant that the case is not perfectly on target, as no case ever is. I also grant that it is a lower court ruling, not the Supreme Court.

If in some instances the President can show that FISA intrudes on his powers as Commander in Chief, those powers, not FISA will control. Just as you have the right to Freedom of Speech, but in some contexts, like yelling fire in a crowded theather, that right does not control.

I don't know why you keep repeating the Youngstown case when I have offered my agreement. In the context of a conflict with FISA, to the extent he relies on Article II, the president's powers are at his "lowest ebb" and it will be up to him to make the case.

Based on currently available information, he should be easily able to do that. I grant that if abuses surface in which the surveillance powers have been abused such as Dan's diaper bondage scenario, then we could have a completely different story. If the Court examines the president's actions and sees poor controls, deceptive consultation, and repeated abuses, it might not buy the national security arguments as it didn't with the Youngstown case.

"However, if this were the case the WH would be putting this out all over the place, saying "we didn't violate FISA because we only monitored foreign calls and a few US Citizens were inadvertently swept up ...".

That is probably not the case here, because such a defense would require them to release nearly complete details of the program, which they obviously aren't going to do.

In a different context, I would agree.

Again, I am just guessing at this possibility, but it would sure explain a lot of the restrictions that have been discussed.

We're making a lot of assumptions about a program that something like 99.99999999% of all people know not a thing about. In the GWOT (hey, there's an acronym we can all get behind, huh?), I'm willing to give Dubya and the NSA the benefit of the doubt.

T.

"You mean that 72 hours after the fact isn't enough time to go to a FISA court? On what basis do you come to that conclusion? "

If you read the FISA law, it sets out some pretty tough requirements to get a warrant. It often takes weeks to assemble the required information, and then it is still not sufficient. Witness the attempt to get to Moussoui's (sp?) computer. The FBI agent was never able to even make the case well enough internally.

It hasn't been stated, but the obvious reason to not get a warrant is that you can't get a warrant, presumably for want of probable cause. The requirement for probable cause for a warrant is right in the Fourth Amendment, so no way around that.

Gathering intelligence is not like a criminal investigation. You sweep up everything you can find and sort through it. You aren't going to get a warrant saying you have a possible indication that some spot might be a good place to try to sweep.

The utter absurdity of this opinion is beyond belief.

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"Go yell at an M&M"

I will spare requoting RE: Sealed Case for the fifth time. I will only observe that your interpretation is not shared by any prominent legal authority that has offered a specific opinion on it. It has been cited as strong support for the President's legal position by many legal authorities and it is cited in the five page legal memo from the Whitehouse to the leaders of Congress.

I'm glad you will spare us Art, because it's quite clear you don't know what the hell you are talking about. You are the perfect guy for the soundbite generation - you like short quotes, and commentary on how that short quote supports a position, buy you are completely unwilling to think for a second and try to actually understand. You posted comments on Sealed Case a dozen times without even having the foggiest idea of what the case dealt with, just that the White House had used it in it's defense.



No amount of quotation will change your mind though, so I won't bother. I do grant that the case is not perfectly on target, as no case ever is. I also grant that it is a lower court ruling, not the Supreme Court.

No, it's no on target. It's reference is about warrantless searches of foreign nationals in the absence of any law prohibiting such searches. The issue at had is the warrantless surveillance of American citizens in the face of a specific law outlawing that. If that's good enough for you, then I can't change your mind, but please spare us te "Strong support" hyperbole and the outright falsehood of having many cases to support your position.



If in some instances the President can show that FISA intrudes on his powers as Commander in Chief, those powers, not FISA will control. Just as you have the right to Freedom of Speech, but in some contexts, like yelling fire in a crowded theather, that right does not control.


Your analogy is not the same thing at all, but if the SC rules that FISA intrudes on his powers as C in C, it will rule FISA unconsitututional. If that happens, the president will be vindicated, but until that happens he is breaking the law. He doesnt have the authority to ignore laws as he chooses.



I don't know why you keep repeating the Youngstown case when I have offered my agreement. In the context of a conflict with FISA, to the extent he relies on Article II, the president's powers are at his "lowest ebb" and it will be up to him to make the case.

I keep repeating Youngstown because, just like Sealed Case, you seem unable to grasp the logic behind the decision. I dont know what you are getting at with "it will be up to him to make the case". You seem to think if he can present a good case to someone (who? The American people? to Congress?) he can ignore FISA.

WRONG ART

He has to make his case to the Supreme Court, if and only if FISA comes up for judicial review, that FISA is unconsitutional. If, and only then, can he defy an Act of Congress. That's what Jackson says in Youngstown.

Let me say that one more time for you: If the Court rules that FISA is unconsitutional, only then, can the president defy an Act of Congress.

It has NOTHING to do whether the surveillance had Congressional consultation, abuses or lack therof, or anything else you try and justify it with.

Bush and Gonzales are breaking the law, plain and simple. Perhaps we will see a challenge to the law in he future - doesn't change the fact that the activity is illegal right now.

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Liberal hypocrisy is the easiest thing for Republicans to slam the Democrats on. It was another thread about wiretapping where you (I think it was you) and I had an exchange about the same thing. I mentioned something about Clinton conducting warrantless searches and you said it was lame for me to bring that up. Than I said democrats are only good at fighting political wars....not real wars and you mentioned FDR and Truman who fought real wars. Remember that FDR was the guy who took an entire class of american citizens and tossed them in internment camps; no probable cause, no due process, no warrants........

So, like it or not hypocrisy matters and most people see it for what it is. It is so easy for Republicans to exploit. I really don't understand liberal stupidity......I'm not sure if I should laugh or cry. It's not even a fair fight because liberals are so pathetically ignorant and out of touch.

I think the liberal strategy....the lame attacks and the double standards outlived their usefulness back in 2000. In the meantime there is a collective poverty of imagination among the democrats that will cause them to continue calling they same plays leading up to 2006 and through 2008.....just making it easier for the Republicans to destroy them.

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**All of these words finding themselves together were greatly astonished and delighted for assuredly, they had never met before**

Hmmmm....I think there is quite a distinction between saying "Person X did something, therefore it's ok that Person Y does the same" versus "Person X, who is a Democrat/Republican, had the characteristics/qualities needed to perform a specific task".

And in the battle of the tallest midgets, I'll take the Pepsi challenge with Republican hypocrisy against Democratic hypocrisy any day of the week...

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f/k/a mclamb6

Coke (Person Y) came before Pepsi (Person X). It was Pepsi that started the Pepsi Challenge to persuade people that Pepsi tastes better than Coke. Kind of like how democrats (Person X/Pepsi) want to convince minorities that they are better friends to them than (Coke/Person Y). Of course Pepsi won the Pepsi challenge and people remain ignorant about which political party has their best interests in mind. However, Coke will always be better than pepsi and you will never hear about people drinking pepsi in an Ironman Marathon, the magic potion is always Coke.

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**All of these words finding themselves together were greatly astonished and delighted for assuredly, they had never met before**