"That [the Separate Car Act] does not conflict with the Thirteenth Amendment, which abolished slavery...is too clear for argument...A statute which implies merely a legal distinction between the white and colored races -- a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color -- has no tendency to destroy the legal equality of the two races...The object of the [Fourteenth A]mendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based upon color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to either." [5]
Plessy ran afoul of the 14th Amendment which forbade the states from abridging the rights of citizens. That clearly didn't matter to this court.
The Brown V Board of Education reversed Plessy V Ferguson:
"We come then to the question presented: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities? We believe that it does...We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment. [12]
I site these cases for the reader in order to make sure that the reader understands that simply because a law has been approved of, even by the highest court in the land. It is not necessarily constitutional. Furthermore, the Congress, Executive and Judicial branches are fallible and if they pass fallible laws or laws that run afoul of the Constitution they should be challenged on it until such laws are changed. I believe that, and I will show the arguments given in support of the Bush administration's end run around FISA are in fact based on unconstitutional ideas and are criminal.
Let me first deal with issue 3 brought up by NOFP:
Effect of other law: According to sondjata, the President's Commander in Chief powers can only be exercised in response to "imminent danger," a proposition he bases on the War Powers Resolution. That act has been ignored or evaded by all Presidents since its enactment (Reagan, Clinton), because most experts believe the Resolution is unconstitutional. The Federal Courts uniformly have refused to upset this view, see, e.g., Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), aff'd 203 F.3d 19 (DC Cir.), cert. denied, 531 U.S. 815 (2000). In any event, the Resolution does not demand Congressional approval to retaliate after "a national emergency created by attack upon the United States." The War Powers Resolution, in short, is an inapplicable dead letter here.
Actually, the argument I proffered was in direct response to the Bush Administration white paper on the subject as discussed in American Big Man I will highlight a few of the sections:
In the specific context of the current armed conflict with al Qaeda and related terrorist organizations, Congress by statute has confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland. In its first legislative response to the terrorist attacks of September 11th, Congress authorized the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of September 11th in order to prevent “any future acts of international terrorism against the United States.” Authorization for Use of Military Force, Pub. L. No. 107-40, ¤ 2(a), 115 Stat. 224, 224 (Sept. 18, 2001) (reported as a note to 50 U.S.C.A. ¤ 1541) (“AUMF”). History conclusively demonstrates that warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF. The Supreme Court’s interpretation of the AUMF in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), confirms that Congress in the AUMF gave its express approval to the military conflict against al Qaeda and its allies and thereby to the President’s use of all traditional and accepted incidents of force in this current military conflict—including warrantless electronic surveillance to intercept enemy communications both at home and abroad. This understanding of the AUMF demonstrates Congress’s support for the President’s authority to protect the Nation and, at the same time, adheres to Justice O’Connor’s admonition that “a state of war is not a blank check for the President,” Hamdi, 542 U.S. at 536 (plurality opinion), particularly in view of the narrow scope
and
President Roosevelt soon supplanted that temporary regime by establishing an office for conducting such electronic surveillance in accordance with the War Powers Act of 1941. See Pub. L. No. 77-354, § 303, 55 Stat. 838, 840-41 (Dec. 18, 1941); Gottschalk, 5 Comm. & L. at 40. The President’s order gave the Government of the United States access to “communications by mail, cable, radio, or other means of transmission passing between the United States and any foreign country.”
There are other references, but as made clear in American Big Man, the Bush Administrations' logic is founded on interpreting the War Powers Resolution (WPR) and the Authorization to Use Military Force (AUMF) in that the AUMF specifically mentions the WPR .If the WPR is indeed a "dead letter" then why does the Bush Administration use it to support their case? Why is it used in the AUMF? clearly then the assertion that the WPR does not apply, is incorrect. Also this means that the NOFP has to decide on whether it supports the Bush Administration's argument or if it is offering an alternative argument of it's own design.
Having said the above it would be pertinent to clarify for the reader that my discussion centers around what I understand to be the legal requirements of the government vis-a-vis US Citizens (referred to as U.S. Persons in various legal documents). The argument is specifically crafted against the argument proffered by the Administration and not any other supposed or hypothetical legal argument. In other words, for the sake of this argument I assume the White paper to be THE argument.
Before we continue I must also point out another disagreement with NOFP, as well as the Bush administration: That is the ubiquitous use of the term "terrorist" for the objects of surveillance. In any legal proceeding under the laws of the United States an individual is a suspect or accused (name the crime here). This is important to remember. The presumption of innocence is the foundation of the 4th Amendment arguments made here.
This was a point made by me in Answering questions about American Big Man Yet NOFP, as well as other supporters of the Bush administration, insists on calling all persons under surveillance "terrorists" as if such a thing has been proven in any court of law beyond reasonable doubt. This may seem moot, but it is not, since the language presumes guilt simply because the president says so.
Let us now move to NOFP second point:
2 AUMF authorizes warrantless wiretapping: sondjata says "the AUMF was not meant to expand presidential authority." But the AUMF says what it says--it approves anti-terrorism actions that are "so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004). The Hamdi case, of course, found that detention of combatants was a "fundamental and accepted . . . incident to war." So the question: is spying similar?
Again I posted the exact language of the AUMF: it may be found here In that post I noted:
Now here's the important thing. Section 2 (b) declares that the AUMF is meant to be consistent with the War Powers requirement (we'll get to that in a minute). and section 2(b)(2) also specifies that:
Applicability of other requirements. -- Nothing in this resolution supercedes any requirments of the War Powers resolution.
With that statment, we know that the AUMF was not meant to expand presidential authority beyond what is allowed by the War Powers Resolution.
Therefore to my reading, the WPR is where the buck stops in terms of presidential authority (and is why we critiqued the Supreme Court when it handed down it's asinine decision regarding Padilla and Hamdi).
Therefore, it is me saying that the AUMF doesn't expand presidential authority it is the AUMF that says it. I am merely reading what it says. The AUMF does not suddenly grant the President extra constitutional powers (we'll discuss that later) AND any authority it does give the president is in line with the War Powers Resolution (WPR).
American Big Man further detailed the WPR sections specified by the AUMF:
(a)
Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred--
(1)
from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution;
In other word the AUMF is a specific statutory authorization within the WPR.
But:
SEC. 8.(d)
Nothing in this joint resolution--
(1)
is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or
(2)
shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution
If I may crystalize section 8d: "nothing in the WPR shall be construed as granting any authority to the president"..."which authority he would not have had in the absence of this joint resolution."
Again, my reading of this means that the President cannot, by the WPR, be given extra-constitutional powers. Indeed NOFP agrees with me that if the WPR could give new power to the Executive by statute, the whole process of amending the US Constitution would be turned on it's head. the WPR as invoked by the AUMF clearly does not give power to the executive that he didn't have before. So is the WPR dead?
The point NOFP makes about Hamdi has been discussed by myself my post referencing Hamdi and later in posts referencing Padilla. I believe the Court has erred in it's decision no different to how the court erred in Plessy v. Fergusson and Dredd. Fortunately, for my argument this failure though historically important, is largely irrelevant to my argument.
Having said this let us move to argument 4 of NOFP, which is getting to the heart of our disagreement:
4. Scope of Presidential power: sondjata says Bush can not short-cut Bill of Rights protections of citizens or permanent residents: "The President nor any other arm of government does not have, and never did have the constitutional right to spy on citizens without 'due process.'" Of course, Executive authority isn't unlimited. Nonetheless, it's most expansive in the face of overseas threats, as the Supreme Court confirmed in United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936): "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs." That authority is sufficient to overcome sondjata's objections.
Again, as discussed in the Big Man series, I reject court decision based arguments prior to the enactment of FISA. FISA being a result of the excesses of the executive (This will be directly discussed later), thus I find the US. V Curtiss-Wright Corp (1936) irrelevant So I won't address it. I will however address the following:
Nor are Commander in Chief powers confined to aliens.2 This was settled in Ex Parte Quirn, 317 U.S. 1, 37-38 (1942):
Citizenship in the United States of an enemy belligerent does not relieve him from the consequences of a belligerency which is unlawful because in violation of the law of war. Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts are enemy belligerents.
See also Hamdi: "A citizen, no less than an alien, can be 'part of or supporting forces hostile to the United States or coalition partners' and 'engaged in an armed conflict against the United States.'"
So the question is: are citizen belligerents entitled to exacting application of all Constitutional liberties and each jot and dot of due process? Not according to the Fifth Amendment: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." Rather, "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481 (1972) Nor do other procedural protections apply in full, as the Court held in both Quirn at 38-45 (U.S. citizen/enemy belligerent not entitled to Sixth Amendment trial by jury), and Hamdi (citizen detainee not entitled to confront witnesses nor the presumption of innocence). There's no reason to assume the Fourth Amendment is any different.
I have repeatedly stated on American Big Man as well as related posts on Hamdi and Padilla, that the Supreme Court erred in it's Hamdi decision, a decision based largely on the PATRIOT ACT, which I have also argued to be largely unconstitutional. That Hamdi or the PATRIOT ACT has not had proper judicial or legislative revue does not diminish my objection because, as stated at the outset of this piece, the Supreme Court has made errors in judgement on more than one occasion and so has the Congress. Furthermore, as pointed out in the previous American Big Man Answers post, the Hamdi decision flies is in contradiction to
(7) committing any act of treason against, or attempting by
force to overthrow, or bearing arms against, the United States,
violating or conspiring to violate any of the provisions of
section 2383 of title 18, or willfully performing any act in
violation of section 2385 of title 18, or violating section 2384
of title 18 by engaging in a conspiracy to overthrow, put down,
or to destroy by force the Government of the United States, or to
levy war against them, if and when he is convicted thereof by a
court martial or by a court of competent jurisdiction.
The court, in the Hamdi decision, has in effect given the executive the ability to declare a person a criminal and then deny them due process via that designation.
Furthermore the Fifth Amendment as quoted by NOFP relates to capital crimes supposedly committed by persons in the Army, Navy, National Guard. This does not apply to civilian citizens. The Quirn decision, in my opinion is also subordinated to FISA (we'll get to the specifics of that soon).
Issues 5 and 6 will be combined with issue 1, because they are in my opinion inextricably linked.
NOFP states in issue 1:
Article II powers are an alternative: sondjata says:
FISA is law. The president MUST put all domestic wiretaps through FISA.
This isn't so; the courts have flatly rejected this argument, most recently (as noted in my first post), In re Sealed Case, 310 F.3d 717, 742 [slip op. at 48] (Foreign Intel. Surv. Ct. of Rev. 2002):
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.
Note the last phrase, which directly rebuts sondjata's central claim. That point was echoed by then-Attorney General Bell -- a Democrat -- testifying before Congress during debates on FISA, as quoted in the Administration's White Paper. Ask even the NY Times!
The supremacy of Presidential authority under Article II, Section 1, cl. 5 is settled law, see United States v. Curtiss-Wright Corporation, 299 U.S. 304, 319-320 (1936), properly applied by Attorney General Alberto Gonzales. It's ironic, is it not, that the left embraces a "living Constitution"--but only when they hold the leash on the outcome.
The fact that FISA authorizes another approach is not determinative, as the Supreme Court repeatedly has held in other contexts, see Dames & Moore v. Regan, 453 U.S. 654, 678 (1981). Who decides whether inherent Article II authority trumps legislation? According to the Clinton-era Department of Justice, the President, because the Chief Executive:
must shoulder the responsibility of protecting the constitutional role of the presidency. This is usually true, for example, of provisions limiting the President's authority as Commander in Chief. Where it is not possible to construe such provisions constitutionally, the President has the authority to act on his understanding of the Constitution.
On wiretaps specifically, the Supreme Court in Keith declined to address the issue. Nonetheless -- as detailed in my initial post -- every court ruling on the issue has concluded that the President has the Constitutional authority to authorize national security wiretaps without warrants. Clinton's Deputy Attorney General Jamie Gorelick said the same, agreeing with "every President since FISA's passage." Attorney General Gonzales concluded that FISA is too slow because it requires him "to determine IN ADVANCE that a FISA application for that particular intercept will be fully supported and will be approved by the court before an emergency authorization may be granted. That review process can take precious time."
In sum, FISA is law, but it's not the sole authority for wiretaps. Indeed, the implications of your position are frightening. Were Congress' interpretation of the Constitution to control, the Supreme Court couldn't declare a law unconstitutional. Were Congress able to confine Constitutional powers, it could amend the Constitution disregarding the set-forth process for Amendment. Your argument would sanction a law declaring Governor Schwarzenegger eligible for the Presidency. Can Congress do that? Logic, and Article II, Section 1, cl. 5, say "no."
Let us look at the Sealed Case cited by NOFP what does it say about wiretaps and the fourth Amendment protections of citizens? The decision is by and large an argument declaring that the FISA court was wrong to change the requirements of a March 2002 DOJ directive and is not an argument dismissing Fourth Amendment concerns.
In opening the decision states:
Per Curiam: This is the first appeal from the Foreign Intelligence Surveillance Court
to the Court of Review since the passage of the Foreign Intelligence Surveillance Act (FISA),
50 U.S.C. §§ 1801-1862 (West 1991 and Supp. 2002), in 1978. This appeal is brought by the
United States from a FISA court surveillance order which imposed certain restrictions on the
government. Since the government is the only party to FISA proceedings, we have accepted
briefs filed by the American Civil Liberties Union (ACLU)1 and the National Association of
Criminal Defense Lawyers (NACDL) as amici curiae.
Not surprisingly this case raises important questions of statutory interpretation, and
constitutionality. After a careful review of the briefs filed by the government and amici, we
conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and
that the restrictions imposed by the FISA court are not required by FISA or the Constitution.
We therefore remand for further proceedings in accordance with this opinion.
In other words this decision wasn't about whether the government could go around the FISA court, which is THE issue at hand, it regards amendments to the FISA law and it's restrictions on the government. This is important. Lets jump to the end of the decision for a second:
Even without taking into account the President’s inherent constitutional authority to conduct
warrantless foreign intelligence surveillance, we think the procedures and government
showings required under FISA, if they do not meet the minimum Fourth Amendment warrant
standards, certainly come close. We, therefore, believe firmly, applying the balancing test
drawn from Keith, that FISA as amended is constitutional because the surveillances it
authorizes are reasonable.
So this decision clearly states that even though the PATRIOT Act lowered the bar (probably in an unconstitutional manner) for the FISA court, the requests of the government STILL had to come close to the protections provided by the Fourth Amendment. Therefore we MUST conclude by this statement alone that the Fourth Amendment warrabt requirements still stands. But I won't rest there. let's examine the rest of the document. The real issue at hand in this decision is the requirement that the surveillance must be primarily for foreign intelligence gathering. the PATRIOT ACT lowered the bar so that foreign intellgence gatherins is "a" purpose rather than the "primary" purpose. The distinction is important. NOFP sited the reference to the Truong case which is summarized below:
United States v. Truong Dinh
15
Hung, 629 F.2d 908 (4th Cir. 1980). That case, however, involved an electronic surveillance
carried out prior to the passage of FISA and predicated on the President’s executive power.
In approving the district court’s exclusion of evidence obtained through a warrantless
surveillance subsequent to the point in time when the government’s investigation became
“primarily” driven by law enforcement objectives, the court held that the Executive Branch
should be excused from securing a warrant only when “the object of the search or the
surveillance is a foreign power, its agents or collaborators,” and “the surveillance is conducted
‘primarily’ for foreign intelligence reasons.” Id. at 915. Targets must “receive the protection
of the warrant requirement if the government is primarily attempting to put together a criminal
prosecution.” Id. at 916. Although the Truong court acknowledged that “almost all foreign
intelligence investigations are in part criminal” ones, it rejected the government’s assertion
that “if surveillance is to any degree directed at gathering foreign intelligence, the executive
may ignore the warrant requirement of the Fourth Amendment.” Id. at 915.
So prior to FISA, the courts understood that since "almost all foreign intelligence investigations are in part criminal" ones, then the government cannot throw out the Fourth Amendment warrant requirement. So if we imagined that FISA, AUMF or PATRIOT ACT didn't exist for a minute, then if the WTC bombing had occured in 1980, there would be a requirement to observe Fourth Amendment protections. So the question is then, does FISA, the AUMF and/or PATRIOT ACT change the Fourth Amendment warrant requirement which we have demonstrated did exist as of 1980.
The PATRIOT ACT Amended FISA in the following manner:
And such coordination “shall not preclude” the government’s certification that a significant purpose of the
surveillance is to obtain foreign intelligence information, or the issuance of an order authorizing the surveillance.
This is the change from the FISA requirement that foreign surveillance be the "primary purpose" to being "a significant purpose." What's significant? What is the watermark for significant? Who determines that? Either way, there is no written change regarding Fourth Amendment warrant requirements.
Continuing
:
On March 6, 2002, the Attorney General approved new “Intelligence Sharing Procedures” to implement the Act’s
amendments to FISA. The 2002 Procedures supersede prior procedures and were designed to
permit the complete exchange of information and advice between intelligence and law
enforcement officials. They eliminated the “direction and control” test and allowed the
exchange of advice between the FBI, OIPR, and the Criminal Division regarding “the initiation,
operation, continuation, or expansion of FISA searches or surveillance.”
So at the heart of the decision discussed here is the March 2002 procedures which the FISA court modified:
Given our experience in FISA surveillances and searches, we find
that these provisions in sections II.B and III [of the 2002
Procedures], particularly those which authorize criminal
prosecutors to advise FBI intelligence officials on the initiation,
operation, continuation or expansion of FISA’s intrusive seizures,
are designed to enhance the acquisition, retention and
dissemination of evidence for law enforcement purposes,
instead of being consistent with the need of the United States to
“obtain, produce, and disseminate foreign intelligence
information” . . . as mandated in §1801(h) and § 1821(4).
Again this is what is at the center of this decision. The decision upholds the government's objections to the modifications detailed above. Note there is NO discussion of Fourth Amendment requirements. Let's move to Section III of the decision which directly deals with the issue of the Fourth Amendment:
we are obliged to consider whether the statute as amended is consistent
with the Fourth Amendment. The Fourth Amendment provides:
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.
Although the FISA court did not explicitly rely on the Fourth Amendment, it at least suggested
that this provision was the animating principle driving its statutory analysis. The FISA court
indicated that its disapproval of the Attorney General’s 2002 Procedures was based on the need
to safeguard the “privacy of Americans in these highly intrusive surveillances and searches,”
which implies the invocation of the Fourth Amendment. The government, recognizing the
Fourth Amendment’s shadow effect on the FISA court’s opinion, has affirmatively argued that
FISA is constitutional.
(My emphasis)
So Fourth Amendment concerns are stated to be the "principle driving it's statutory analysis" and the Bush Administration (The government) has agreed that FISA is constiutional and that FISA operates in the "shadow" of the Fourth Amendment.
Continuing:
And some of the very senators who fashioned the Patriot Act
amendments expected that the federal courts, including presumably the FISA court, would
carefully consider that question. Senator Leahy believed that “[n]o matter what statutory
change is made . . . the court may impose a constitutional requirement of ‘primary purpose’
based on the appellate court decisions upholding FISA against constitutional challenges over
the past 20 years.” 147 Cong. Rec. S11003 (Oct. 25, 2001). Senator Edwards stated that “the
FISA court will still need to be careful to enter FISA orders only when the requirements of the
Constitution as well as the statute are satisfied.” 147 Cong. Rec. S10589 (Oct. 11, 2001).
So in addition to the FISA court recognizing Fourth Amendment concerns AND the government's acknowledgment of such, we have two congressmen on record stating that the requirements of the Constitution must be satisfied, which means Fourth Amendment.
Further:
Turning then to the first of the particularity requirements, while Title III requires
probable cause to believe that particular communications concerning the specified crime will
be obtained through the interception, 18 U.S.C. § 2518(3)(b), FISA instead requires an official
to designate the type of foreign intelligence information being sought, and to certify that the
information sought is foreign intelligence information. When the target is a U.S. person, the
FISA judge reviews the certification for clear error, but this “standard of review is not, of
course, comparable to a probable cause finding by the judge.” H. REP. at 80. Nevertheless,
FISA provides additional protections to ensure that only pertinent information is sought. The
certification must be made by a national security officer–typically the FBI Director–and must
be approved by the Attorney General or the Attorney General’s Deputy. Congress recognized
that this certification would “assure[] written accountability within the Executive Branch” and
provide “an internal check on Executive Branch arbitrariness.” H. REP. at 80. In addition, the
court may require the government to submit any further information it deems necessary to
determine whether or not the certification is clearly erroneous. See 50 U.S.C. § 1804(d).
(my emphasis)
The FISA court is deemed to provide the constitutional protections of US persons as required by the Fourth Amendment and is explicitly "an internal check on executive branch arbitrariness"
Further:
We do not decide the issue but note that to the extent a FISA order comes
close to meeting Title III, that certainly bears on its reasonableness under the Fourth
Amendment.
Can't make it any plainer that FISA is the mechanism to properly surveil US persons and bypassing FISA is equal to bypassing constitutional warrant requirements. and is therefore an abridgment of of Fourth Amendment rights. This leads us back the conclusion cited at the beginning of this section:
Although the Court in City of Indianapolis cautioned that the threat to society is not
dispositive in determining whether a search or seizure is reasonable, it certainly remains a
crucial factor. Our case may well involve the most serious threat our country faces. Even
without taking into account the President’s inherent constitutional authority to conduct
warrantless foreign intelligence surveillance, we think the procedures and government
showings required under FISA, if they do not meet the minimum Fourth Amendment warrant
standards, certainly come close. We, therefore, believe firmly, applying the balancing test
drawn from Keith, that FISA as amended is constitutional because the surveillances it
authorizes are reasonable.
(My emphasis)
In other words, FISA is constitutional because it comes close to the warrant requirements of the Fourth Amendment.
So, in conclusion,
1) The FISA court fulfills 4th Amendment requirements and is intended to curb executive excess.
2) The PATRIOT ACT does not displace FISA. nor is intended to delegitimize the FISA court
3) the AUMF does not give the president any authority that he didn't have before it's passing and is based in the WPR
4) The War Power's Resolution underscores the position that the presidential powers are not expanded by statute.
Therefore if the president took upon himself to expand his power and bypass the FISA courts. he has broken the law. He has broken a few laws.
Even with the ill decided Hamdi case, the President broke the law. The sad part is he didn't have to. Since he had the Attorney General in his pocket he could push through any request he wanted. There was no need to bypass the court. This was a power grab plain and simple and it was unconstitutional.
Furthermore, by admitting, in public that he did indeed bypass the FISA court the President has admitted to violating his oath of Office, which is to uphold and protect the Constitution of the United States. Therefore the president has in fact admitted, on record to have committed a crime against the US government, has violated his oath and should be immediately removed from office, charged and tried for the appropriate crime.
GG
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Sorry for the delay in replying. Related post here.
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