I will go on memory here and guess that you posted that Gonzelez argued both a Constitutional basis and a further war authorization argument.

I don't think I disagree with him, I just don't think the war authorization argument is particularly interesting, though it may be a fine or even winning argument.

If I were a lawyer I would obviously push it since the clear letter of the law seems to agree with POTUS's position. I don't think that is what Congress really intended though, and it is not the crux of the matter.

I'm not trying to convince you of anything. you seem pretty settled in your opinions. I'm just not buying what you are describing as "clear as a bell." If it were so clear, there would be no controversey.

here are the last couple paragraghs for your to re-read.



the little links go to footnotes. those will lead you to cases which stand for the content of the footnoted sentence. If you are going to have a strong opinion, you might want to spend a little less time posting and defending and a little more time understanding. You will see that your "pet case" does not contain the clear language you think it does.

Go read.



from the FindLaw site:

"Unanimously, the Court held that at least in cases of domestic subversive investigations, compliance with the warrant provisions of the Fourth Amendment was required.152 Whether or not a search was reasonable, wrote Justice Powell for the Court, was a question which derived much of its answer from the warrant clause; except in a few narrowly circumscribed classes of situations, only those searches conducted pursuant to warrants were reasonable. The Government's duty to preserve the national security did not override the gurarantee that before government could invade the privacy of its citizens it must present to a neutral magistrate evidence sufficient to support issuance of a warrant authorizing that invasion of privacy.153 This protection was even more needed in ''national security cases'' than in cases of ''ordinary'' crime, the Justice continued, inasmuch as the tendency of government so often is to regard opponents of its policies as a threat and hence to tread in areas protected by the First Amendment as well as by the Fourth.154 Rejected also was the argument that courts could not appreciate the intricacies of investigations in the area of national security nor preserve the secrecy which is required.155



The question of the scope of the President's constitutional powers, if any, remains judicially unsettled.156 Congress has acted, however, providing for a special court to hear requests for warrants for electronic surveillance in foreign intelligence situations, and permitting the President to authorize warrantless surveillance to acquire foreign intelligence information provided that the communications to be monitored are exclusively between or among foreign powers and there is no substantial likelihood any ''United States person'' will be overheard.157"

Art,

Truong was a case that involved surveillance carried out prior to FISA - the language you cite from Sealed Case (310 F.3d 717, 742) is dicta. Sealed Case explains that the Patriot Act amendments to FISA expanded the government's power (no longer had to prove that "primary purpose" was to gather foreign intelligence info - only a "significant purpose").

Having read the case (thanks for the cite!), I'm even more curious as to why Bush chose to ignore FISA. It's pretty much a free ticket - the only check on the executive branch is the requirement that the request (by the FBI) must be approved by the Attorney General. If we're really going after "bad guys" (including U.S. citizens), why would the administration be afraid to put their name on their work?

To Steve Hawley: thanks for your service - sounds like you are doing incredible work which will make our world a better and safer place. I think I'm in agreement with both you and Slowman, however, that if "winning" this war requires too much destruction of our democratic principles, then the terrorists win. Keep fighting the good fight.

Yes, I read all that, but except for the unsettled description, none of it refers specifically to POTUS authorized monitoring. By quoting that section, you are making the faulty assumption that POTUS is just another FBI agent or cop on the street. He simply isn't.

The case I quoted was on target to Presidential power.

My opinions are subject to change to a good argument. I admit I haven't read all of these opinions which run to 50 pages or more. Sometimes what you read gets contradicted later in an opinion or overruled in another opinion.

My opinions are subject to change to a good argument.

That's a funny one Art. But somehow a dozen or so people here, now up to 5 or 6 lawyers, and including Democrats, Republicans, independents, liberals, conservatives, moderates, et.c... all have failed to come up with an argument good enough for you. Do you ever think... maybe it's you?

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I can only guess, but I think it is a good guess. FISA is not a free pass by any stretch. Ultimately, the government still has to show probably cause.

If the government picks up a laptop from a high value terrorist with 100 phone numbers on it, they are going to want to tap those numbers to the extent they can. Just having your phone number in someone's laptop does not cut it for probable cause.

Yes.

Tends to make things not so much "clear as a bell." No?

They have made no argument to my posted case other than one who said it doesn't apply. No reasons why yet, but I am listening.

Perhaps you can explain why the clear language quoted above doesn't mean what is seems to mean.

That was already explained to you (an conveniently ignored by you) in post #21 in this thread.

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Maybe you could read posts 23 and 29?

Ok, then the other thread where I posted Gonzales' remarks that you previously commented on.

You guys need to stick one thread about a topic, I can't keep up.

You can't keep up? I have killed half the day here. I have enjoyed it though.

I think I answered your comment though, didn't I?

23 and 29 conveniently ignored the salient point ot 21

"Truong does not provide the clear language you claim to see. I'm not saying you are not seeing clear language. it's just not in the case you give such vaulted status, but apparently havent read. Can you show me where you are seeing clear language as it relates to the issue of intelligence gathering in regard to American citizens? I'll agree that you'll find clear language discussing collecting intelligence from non-americans. What is bringing controversy is that apparently the administration is intelligence activity on Americans. "


If you can actually responsd to this, please do. And please provide links when you cite things

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Sealed Case apparently involved a United States citizen who was deemed an agent of a foreign power and thus did not have the immunity he would have otherwise enjoyed as a US citizen. Sealed Case quoted Turong as noted above in the context of a US citizen.

Apparently involved? Come on Art, you've mentioned this case a dozen times today and you're not sure? Where ar eyou reading this case?

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Did involve:

The government’s application for a surveillance order contains detailed information to support its contention that the target, who is a United States person, is aiding, abetting, or conspiring with others in international terrorism.

Can you post your source for the case text?

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http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

Thanks

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OK, so now some of the commentary makes sense.

Truong dealt with a non-US citizen. The Court affirmed the right if the president to conduct warrantless searches against foreign nationals (not US Citizens)

In Re: Sealed Case dealt with amendments to FISA by the Patriot Act. Specifically, FISA had specified that the govt could obtain FISC warrants if the primary purpose was to gather foreign intelligence. Patriot changed that language to "significant purpose" - the government then asserted it could obtain warrants if the primary purpose was a domestic criminal case, so long as foreign intelligence remained a significant purpose. The Court sided with the government.

"We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable."

Although Truong was mentioned in dicta (a remark made by a judge in a legal opinion that is irrelevant to the decision and does not establish a precedent) in Sealed Case, the reference was to warrantless searches of non-US citizens. At not time did the opinion in either Truong or Sealed Case give support for warrantless searches of US citizens.

Clear now?

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There have been a lot of good arguments made since I last checked in. And I certainly don't need to add to the legal debate. I will say, though, that among the many things that bug me about what Bush has done, perhaps the most troubling is his inability or unwillingness to say exactly what "national security interest" he is protecting. All he's said is basically "I'm doing it for your own good." Pardon my skepticism, but when there is a statute that gives him practically carte blanche to tap whatever he wants and even a free 72 hours to do it, failure to comply with the statute's requirements says to me that he's up to no good. When I was a teenager and wanted to go somewhere my parents wouldn't approve of, I didn't ask them whether I could go (why, when they would say no), I simply snuck out of the house and went anyway. My gut tells me that's the situation we have here.

Bush has the ability every day to start a tap in an emergency and tell the FISA court what he has done within 72 hours. The fact that he won't do that -- despite that the fact that the courts have rejected only 5 gov't taps in 2 +decades, leads me to conclude one thing -- the damn taps are probably so over the f'ing top that not even the rubber stamp court would approve them. Who knows, after getting done with Quakers, they are probably running a tap on Art.

Running a tap on me would be terminal. They would get bored to death.

I really wish you would chime in and add to the legal debate, Amy. Yesterday, you were laughing at Gonzelez, and you were happy to weigh in with those observations.

Even if your feedback is that now you are not so sure about the legality, I think it is only fair that you offer it.