Clarification/Follow-up by excon on 12/24/05 12:22 pm:

Hello again:

I just wanted to add this little tidbit:

Police states work. If you want to keep illegal aliens out, a police state will/(might) do that. If you want to keep drugs out, a police state will/(might) do that. If you want to spy on people to stop: crime, terrorism, unpatriotic thought, sexual deviancy, infidelity, racism, corruption, (fill in the blank), then a police state will/(might) work.

Yes, they work. But I don’t wanna live in one. I think a free country is better.

excon

Clarification/Follow-up by excon on 12/25/05 9:55 am:

Hello again, tom:

I have a few problems with yours, and the presidents, position.

>>>" The President can override statutes if in doing so he believes that the result will be the preservation of the constitution. But even so ;in this case he did not override the specific satute involved .<<<

I don’t understand the logic, that it’s OK to violate the Constitution in order to preserve it. Secondarily, if a statute is constitutional, I don’t believe the president has the authority to override it. Where is that authority cited? In his obligation to preserve the Constitution? It’s circular logic. It makes no sense. It’s reminiscent of Vietnam when we were told that we had to destroy the village in order to save it. I didn’t believe it then. I don’t believe it now.

What statute in particular, are you referring to? The FISA Act itself?

>>>The FISA Act does allow for activities to bypass normal Fourth Amendment protections against unreasonable searches.<<<

Seems to me that yours is a misinterpretation of the FISA Act. You think it “bypasses” protections, whereas I think the purpose for the Act, and the provisions you yourself cite, was to solidify a citizens rights guaranteed under the Fourth Amendment.

To wit: The act allows spying on our soil, however a warrant MUST be sought from the FISA Court - even 72 hours after the fact. Is that the statute you say he didn’t violate or override? I believe he did. If that isn’t it, please tell me which one it is.

Plus, it makes no sense to cite a statute you are bypassing as the authority to bypass it. You are either adhering to the statute or bypassing it. You can’t do both.

>>>. The overriding principle is that searches of Americans must be reasonable. The interception of communications between al-Qaeda and their domestic contacts can and should be interpreted as reasonable.<<<

I don’t disagree. I’m sure the FISA Court would have issued a warrant if it was asked. But it wasn’t asked. Instead, we are told just to trust that Bushes’ interpretation of what's reasonable, actually is reasonable. Indeed, it may have been, but we’ll never know, will we?

We cannot, nor must we ever, allow the cops (the president) to decide what’s reasonable. Placing an independent judge, (whose job is to determine what’s reasonable and what isn’t), between the government (who would search everybody if it could), and its citizens is the bedrock of who we are. It’s what makes us different.

excon

Clarification/Follow-up by tomder55 on 12/26/05 5:17 am:
Much of our founders thoughts were interpretations of the writings of John Locke . He wrote in "Second Treatise of Civil Government" :

Sec. 159. WHERE the legislative and executive power are in distinct hands, (as they are in all moderated monarchies, and well-framed governments) there the good of the society requires, that several things should be left to the discretion of him that has the executive power .....

Sec. 160. This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe.

If my telephone number somehow shows up on a computer captured from a terrorist, please have me surveilled immediately without wasting time, taxpayer money and the effort of people in both the executive and judicial branches of government on getting a warrant under the circumstances.

As to the question of judicial review ;that issue was adjudicated already in 2002 by the FISA Court . In Sealed Case No. 02-001 FISA sites another case ;[U.S. v. Truong *** see below ***];where a federal court "held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."
The FISA court's decision went on to say: "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."

The two district court judges who have presided over the FISA court since 9/11 also knew about and were briefed by the Bush Administration about the surveillance program as were key members of the Senate and House Judiciary Committees . Given that at the time this was the most sensitive and covert operation in the war against Jihadistan I think the President did more than was required to fullfill 'advice and consent ' provisions in the Constitution.

For my 2 cents ;FISA was a flawed bill to begin with. A better way would be to eliminate the special court altogether ,and rely on regular Article III courts to guarantee the reasonableness of such searches if challenged. Such a change in process would allow law enforcement authorities more flexibility in pursuing foreign intelligence investigations, since no pre-investigation warrants would be required, but would also allow for greater protection of the civil liberties of those investigated, since the standard of review would not be simply whether the target is an agent of a foreign power, but whether the search was conducted in a reasonable manner, in conformance with the Fourth Amendment . Warrantless foreign intelligence surveillance would be admissible in criminal prosecutions, but only if such surveillance were determined to be reasonable in post hoc adversary proceedings.


......................................

In 1980, the Fourth Circuit decided United States v. Truong, a criminal prosecution that arose out of the defendant’s spying on behalf of the Socialist Republic of Vietnam. The case presented the issue of the executive branch’s inherent power to conduct warrantless surveillance for national security purposes:

The defendants raise a substantial challenge to their convictions by arguing that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong’s phone conversations or the bugging of his apartment. Instead, it relied upon a “foreign intelligence” exception to the Fourth Amendment’s warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs.
The court agreed with the government’s position:

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following [United States v. United States District Court, 407 U.S. 297 (1972)], “unduly frustrate” the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence activities, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations.

The court held that warrantless searches for foreign intelligence purposes are constitutional, as long as the “object of the search or the surveillance is a foreign power, its agent or collaborators,” and the search is conducted “primarily” for foreign intelligence reasons.

Clarification/Follow-up by excon on 12/26/05 8:11 am:

Hello again, tom:

>>>For my 2 cents ;FISA was a flawed bill to begin with. A better way would be to eliminate the special court altogether ,and rely on regular Article III courts to guarantee the reasonableness of such searches if challenged.<<<

How could we ever challenge it if we never knew it happened?

>>>Such a change in process would allow law enforcement authorities more flexibility in pursuing foreign intelligence investigations, since no pre-investigation warrants would be required, but would also allow for greater protection of the civil liberties of those investigated<<<

I don't wish to give law enforcement agencies MORE flexibility. I want them to do their job WITH monitoring from the court. Nothing more!

Finally, the biggest difference between our positions is essentially trust. You trust government - I don't. The Constitution seems to be on my side there. That’s what all those “checks and balances” are about, no?

excon