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  •  there are good arguments otherwise (0+ / 0-)

    You should at least account for the fact that the Administration, and every appellate court that considered the question, say otherwise.  The Supreme Court, which to date has left the question open, see United States v. United States District Court, 407 U.S. 297, 308 (1972) ("the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country."), ultimately may disagree, but don't ignore the actual arguments.

    by No Oil for Pacifists on Thu Mar 06, 2008 at 07:20:13 PM PDT

    [ Parent ]

    •  Wrong (0+ / 0-)

      With regards to the opinion quoting Truong you conveniently lopped off the very next sentence which gives lie to your argument. I've seen that exact same passage replicated time and time again by right-wingers, each reaching identical wrong conclusion. (You guys must all copy and paste from the same talking points)

      The legal opinion you cited, which you clearly failed to read in full, argues that FISA actually extends the power the of the President:

      "The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable."

      That's the very next sentence. Let me translate that into simpleton: without FISA laws the President actually has LESS power. ("Amplify" meaning "to increase")

      None of that is relevant to what the case finding establishes anyway. The case is a finding on whether the FISA court can impose restrictions. It is not a decision on the constitutionality of FISA laws or warrantless surveillance.

      I'd like to see you quote an actual Court case, not a National Review column, where the FINDING of the court case is that the President can perform warrantless wiretapping on US citizens.

      I won't hold my breath.

      Let me repeat that: you claim courts have found that the President can perform warrantless wiretapping on US citizens. So show me the court case that finds that.

      by Margalis on Fri Mar 07, 2008 at 01:50:35 AM PDT

      [ Parent ]

      •  Not so (0+ / 0-)

        The "next sentence" does not undermine the argument.  The issue is whether Article II, Section 2 of the Constitution grants the President the power to conduct warrantless wiretaps of foreign intel national security information, the question specifically reserved in Keith.  Your argument that "without FISA laws the President actually has LESS power" is flatly wrong:  If the Administration is correct, then Congress could not by statute eliminate this power, nor could a President by signing legislation relinquish such power--otherwise mere statutes could "amend" the Constitution (see the discussion here).

        The "next sentence" is relevant to the authority of the case.  Yet, regardless of whether the discussion in In re Sealed Case (slip op. at 48) was dicta (a 2000 case from the Southern District of New York includes similar language, United States v. Bin Laden, 126 F. Supp. 2d 256, 264 (S.D.N.Y. 2000)), it quoted the Truong case, 629 F.2d 908 (4th Cir. 1980), which in turn correctly characterized all court of appeals cases to that date as having affirmed Presidential power under Article II.   Many of those cases are cited and quoted here.)  Yes Truong and the cases it cites were pre-FISA, but again, if the President is correct that Article II supplies the authority, FISA could not alter that.

        Again, please deal with the actual argument.

        by No Oil for Pacifists on Tue Mar 11, 2008 at 07:35:50 PM PDT

        [ Parent ]

    •  And also (0+ / 0-)

      You are quoting dicta, as your own blog commenters pointed out. (And you ignored) And you are not quoting it correctly at that.

      You say that the "question is open" but until struck down the law is the law. FISA says it is the exclusive means to perform the domestic(key word)surveillance it covers.

      That's how it works. Laws are laws. Clinton may have said that he could ignore FISA laws but he never argued that in court. Similarly Bush has never made that argument in court either, only in press releases. If the Bush administration thinks that FISA is unconstitutional it could argue that in court - it hasn't.

      The key point you are missing here is that the President has the power to perform surveillance but "the people" have the right to be free from warrantless, unreasonable search.

      When the court (that you quoted) says that the President has the power to perform surveillance and that FISA "amplifies" that power the meaning is that FISA amplifies that power by providing domestic surveillance methods in a way that at least approach a traditional warrant and are therefore constitutional. The implication is that approaching a traditional warrant is the lowest possible bar, and any lower is unconstitutional due to what we call the "Bill of Rights."

      If you truly feel that FISA is an unconstitutional restriction on the President argue it in court.  It's been around for decades and hasn't been struck down or even really challenged. Curious.

      by Margalis on Fri Mar 07, 2008 at 02:12:23 AM PDT

      [ Parent ]

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