- Interpreting Article II and AUMF as allowing unlimited Executive Power, unitary executive (in NSA warrantless spying program)
See more below. Please comment with additional arguments.
- Article II-
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
- 4th Amendment on probable cause standard:
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.
- Gonzales on reasonable belief standard:
This program, described by the President, is focused on international communications where experienced intelligence experts have reason to believe that at least one party to the communication is a member or agent of al Qaeda or a terrorist organization affiliated with al Qaeda.
- AUMF-
That the President is authorized 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
(note that the AUMF only authorizes force against 9/11-related attackers, excluding Iraq)
- FISA on domestic spying (not foreign!):
In the event that such application for approval is denied[of an emergency search begun without court approval, with 72 hours to get approval], or in any other case where the physical search is terminated and no order is issued approving the search, no information obtained or evidence derived from such search shall be received in evidence or otherwise disclosed in any trial,
(1)Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that-- (A)the electronic surveillance is solely directed at-- (i) the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or (ii)the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title; (B) there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
Seems pretty clear the warrantless wiretapping is only allowed for foreign powers as long as they're not in the United States, because the 4th Amendment applies in the USA. And the FISA law is the exclusive means of wiretapping. Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire, oral, and electronic communications may be conducted.
- Using sneaky language to suggest that doing the surveillance in America is international when one end of the communication is abroad.
Q Back to the NSA. The White House last night put out paper backing up its claims that this was a terrorist surveillance program, saying the charges of domestic spying -- you defined what "domestic" meant. Isn't one end of that phone call on domestic soil? Why is the charge of it being domestic spying so far off?MR. McCLELLAN: For the same reasons that a phone call from someone inside the United States to someone outside the United States is not a domestic call....
See Bush surprised by this point.
- Deciding FISA is unconstitutional
We do not have to decide whether, when we are at war and there is a vital need for the terrorist surveillance program, FISA unconstitutionally encroaches -- or places an unconstitutional constraint upon -- the President's Article II powers.
First he notes the conditions for government searches Finally, let me explain why the NSA's terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures.
Then he ignores the Amendment's need for probable cause for a warrant and changes unreasonable search into reasonable cause.The key question, then, under the Fourth Amendment is not whether there was a warrant, but whether the search was reasonable. This requires balancing privacy with the government's interests -- and ensuring that we maintain appropriate safeguards. We've done that here.
If we conduct this reasonable surveillance -- while taking special care to preserve civil liberties as we have -- we can all continue to enjoy our rights and freedoms for generations to come.
From http://moderatesmusings.blogspot.com/...