From Hugh Hewitt, no less.
Is Hewitt a lawyer, or play one on TV?
Here's more of the right, just trying to blind-side unprepared guests with "precedent" unrelated to whether Bush broke the law or not. Or probably what Hewitt thought he was presenting to the left.
In this case, it was Rosa Brooks, a constitutional law professor at UVA Law School, formerly of the US State Department human rights bureau.
Except in this instance, Hewitt may have given us some great ammunition.
http://radioblogger.com/...
Pertinent verbiage and analysis after the flip.
From Hewitt's keyboard:
A little thin in the evidence department, but here we go.
HH: I'm joined now by Professor Rosa Brooks of the University of Virginia Law School. Professor Brooks was formerly with the Department of State in the human rights and labor bureau of democracy. She was a consultant to the Open Society Institute and the Human Rights Watch. But we know her on the West Coast as one of the new columnists for the Los Angeles Times...
RB: But I think it seems to me that the NSA surveillance program on its face violates the Foreign Intelligence Surveillance Act, and...
HH: Now, you have read United States V. United States District Court, right?
RB: Uh, Hugh, you're pushing me here.
HH: It's...
RB: Refresh my memory.
HH: United States V. United States District Court, Eastern District of Michigan, in which the United States Supreme Court specifically says, Justice Powell writing, we are not going to consider whether or not the president can, in fact, conduct surveillance of this sort.
RB: What sort?
HH: Foreign agents communicating with their agents in the United States, even if those latter are citizens.
RB: Okay.
HH: So they specifically reserved the question to one side, and the foreign intelligence surveillance court appeals board, in In Re Sealed Case number 2, also said no, the president has the authority to do this. So given that the federal authority...
RB: Well, you know, Hugh, I mean, you've got the case law at your fingertips, and I'm not going to challenge you on it, because I don't...
Their assertion, essentially is number one, even if this is a violation of FISA, it doesn't matter, because the Congressional authorization to use force immediately after September 11th essentially repealed FISA, at least to that extent...
HH: But Professor, they haven't said that. They've said Article II combined with the authorization for the use of military force provide authority not contradicted by the Foreign Intelligence Surveillance Act, an act with which I am an expert, having applied it at the Department of Justice for a number of years. And liberals like Cass Sunstein, and I'm sure you admire him a lot at the University of Chicago...
Hewitt's a moron, or deliberately lying. US v. US District Court was a ruling from 1972, pre-FISA, and had absolutely no bearing on whether or not Bush can circumvent the congressionally mandated procedures of FISA.
As a matter of fact, the case specifically says congress can implement whatever safeguards it thinks are appropriate:
http://supct.law.cornell.edu/...
Given these potential distinctions between Title III criminal surveillances and those involving the domestic security, Congress may wish to consider protective standards for the latter which differ from those already prescribed for specified crimes in Title III. Different standards may be compatible with the Fourth Amendment [p323] if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens. For the warrant application may vary according to the governmental interest to be enforced and the nature of citizen rights deserving protection. As the Court said in Camara v. Municipal Court, 387 U.S. 523, 534-535 (1967):
In cases in which the Fourth Amendment requires that a warrant to search be obtained, "probable cause" is the standard by which a particular decision to search is tested against the constitutional mandate of reasonableness. . . . In determining whether a particular inspection is reasonable -- and thus in determining whether there is probable cause to issue a warrant for that inspection -- the need for the inspection must be weighed in terms of these reasonable goals of code enforcement.
It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of § 2518, but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e.g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in § 2518. [HEY! THIS LOOKS A LOT LIKE A DESCRIPTION OF THE FISA COURT, BUT FOR DOMESTIC CASES!]
The above paragraph does not, of course, attempt to guide the congressional judgment, but, rather, to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do [p324] hold, however, that, prior judicial approval is required for the type of domestic security surveillance involved in this case, and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe. [HEY! HOW ABOUT THAT? "CONGRESS MAY PRESCRIBE"]
V
As the surveillance of Plamondon's conversations was unlawful, because conducted without prior judicial approval, the courts below correctly held that Alderman v. United States, 394 U.S. 165 (1969), is controlling, and that it requires disclosure to the accused of his own impermissibly intercepted conversations. As stated in Alderman,
the trial court can and should, where appropriate, place a defendant and his counsel under enforceable orders against unwarranted disclosure of the materials which they may be entitled to inspect.
394 U.S. at 185. [n21]
The judgment of the Court of Appeals is hereby
Affirmed.
THE CHIEF JUSTICE concurs in the result.
So Hewitt cites US v US District Court, and doesn't even bother to *notice* that the court says Congress can introduce protections against intrusive domestic wiretapping?
And I'm not even addressing the fact that he's waving around verbiage in dicta in the sealed case as some sort of legal precedent for *anything*...
Jeebus. Do these guys on the right even READ whatever they're using to back them up?