Tell Russ Feingold This

I was doing a little research (something I would think a Senator’s staff could do) and I came across a 2002 United States FISA Court Review. The review of the case dealt with the issuance of FISA warrants that had been disapproved. The important thing about the case is a statement by the court which reads:

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. (emphasis added)

In addition, this history was spelled out regarding the use of warrantless foreign surveillance:

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. (emphasis added)

The court stated that the President has inherent Constitutional authority to conduct warrantless foreign intelligence surveillance. Perhaps we should censure Russ Feingold for being an idiot. Now he, Kennedy, Dean, Pelosi, Kerry, Clinton, The ACLU and the rest of the boobs who have been saying that the President conducted illegal searches because he failed to obtain a warrant can sit down and shut up.

Too all moonbats, which part of INHERENT CONSTITUTIONAL AUTHORITY are you having problems with? What part of all courts that have reviewed this have ruled the same way is giving you a problem?

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10 Responses to “Tell Russ Feingold This”

  1. Bos'un says:

    Big Dog, I hope you don’t mind. I cross posted this log over at The Bosun Locker. Great article. Have a fine blogging day.


  2. Inherent Constitutional Authority…

    Big Dog has been diggin up some research. He has something to say to Senator Feingold. Which part of INHERENT CONSTITUTIONAL AUTHORITY are you having problems with? What part of all courts that have reviewed this have ruled the same way is giving yo…

  3. Wild Thing says:

    Thank you BIG DOG for this information. Great post.

  4. shana says:

    Feingold is an unknown presidential hopeful who is just trying to get his name out there. He doesn’t even have the support of his own party. Even Pelosi and Hillary are running from this idiot.

  5. illustrator says:

    Are you really basing your entire argument on a ruling from the City Court of Indianapolis?

    Big Dog- let me ask you and all your supporters a question: when a Democratic president is elected, will you be as rabidly supporting their right to warrantlessly wiretap YOUR phones? After all, according to you, the pres. has the INHERENT AUTHORITY.

    Never mind- I know your answer already. Some permutation of “that’s different.”

    Before you all go off high fiving each other on this silliness, please read the following five reasons why warrantless wiretapping is ILLEGAL, period. If you honestly feel that all of it is meritless, then the slide of the US into totalitarianism is underway with you lot as cheerleaders. Judging from the slogans and stickers offered for sale on your site, most of which are simple “fu*k you” variants, I’d unfortunately have to conclude that this is what you want to happen.

    Mind your souls.

    Point #1: Electronic surveillance by the Government is strictly limited by the Constitution and Federal Law

    The law on surveillance begins with the Fourth Amendment to the Constitution, which states clearly that Americans’ privacy may not be invaded without a warrant based on probable cause.

    United States Constitution
    Fourth Amendment

    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.

    The US Supreme Court (US v. Katz 389 US 347) has made it clear that this core privacy protection does cover government eavesdropping. As a result, all electronic surveillance by the government in the United States is illegal, unless it falls under one of a small number of precise exceptions specifically carved out in the law.

    United States Code Title 50, Chapter 36, Subchapter 1
    Section 1809. Criminal sanctions

    (a) Prohibited activities
    A person is guilty of an offense if he intentionally-

    (1) engages in electronic surveillance under color of law except as authorized by statute

    In other words, the NSA can only spy where it is explicitly granted permission to do so by statute. Citizens concerned about surveillance do not have to answer the question, “what law restricts the NSA’s spying?” Rather, the government is required to supply an answer to the question “what law permits the NSA to spy?”

    Point #2: There are only three laws that permit the government to spy

    There are only three laws that authorize any exceptions to the ban on electronic eavesdropping by the government. Congress has explicitly stated that these three laws are the exclusive means by which domestic electronic surveillance can be carried out (18 USC, Section 2511(2)(f)). They are:

    Title III and ECPA. Title III and the Electronic Commnunications Privacy Act make up the statutes that govern criminal wiretaps in the United States.
    FISA. The Foreign Intelligence Surveillance Act is the law that governs eavesdropping on agents of “foreign powers” within the United States, including suspected foreign terrorists.

    Point #3: The Bush-NSA spying was not authorized by any of these laws

    Title III and ECPA govern domestic criminal wiretaps and are not relevant to the NSA’s spying. FISA is the law under which the NSA should have operated. It authorizes the government to conduct surveillance in certain situations without meeting all of the requirements of the Fourth Amendment that apply under criminal law, but requires that an independent Foreign Intelligence Surveillance Court oversee that surveillance to make sure that Americans who have no ties to foreign terrorist organizations or other “foreign powers” are not spied upon.

    FISA was significantly loosened by the Patriot Act (which, for example, allowed it to be used for some criminal investigations), and parts of it now stand in clear violation of the Constitution’s Fourth Amendment in the view of the ACLU and many others. However, even the post-Patriot Act version of FISA does not authorize the president to conduct warrantless eavesdropping on U.S. citizens or permanent legal residents in the U.S. without an order from the FISA Court. Yet it is that very court order requirement – imposed to protect innocent Americans – that the President has ignored.

    In fact, one member of the FISA Court, Judge James Roberston, has apparently resigned from the court in protest of President Bush’s secret authorization of this program. And the New York Times reported that the court’s chief judge complained about the program when she was (belatedly) notified of it, and refused to allow information gathered under the program to be used as the basis for FISA wiretap orders.

    Point #4: Congress’s post-9/11 use-of-force resolution does not legitimize the Bush-NSA spying

    Congress after 9/11 approved an Authorization to Use Military Force against those responsible for the attacks in order to authorize the president to conduct foreign military operations such as the invasion of Afghanistan.

    But that resolution contains no language changing, overriding or repealing any laws passed by Congress. Congress does not repeal legislation through hints and innuendos, and the Authorization to Use Military Force does not authorize the president to violate the law against surveillance without a warrant any more than it authorizes him to carry out an armed robbery or seize control of Citibank in order to pay for operations against terrorists. In fact, when President Truman tried to seize control of steel mills that were gripped by strikes in 1952, the Supreme Court decisively rejected his authority to make such a seizure, even in the face of arguments that the strike would interfere with the supply of weapons and ammunition to American troops then under fire on the battlefields of the Korean War.

    U.S. Supreme Court
    YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)

    “The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. . . .

    “Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. . . . The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. . . .

    “The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times.”

    The Supreme Court also rejected similar assertions of inherent executive power by Richard Nixon.

    In fact, FISA contains explicit language describing the president’s powers “during time of war” and provides that “the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to exceed fifteen days following a declaration of war by the Congress.” 50 U.S.C. § 1811 (emphasis added). So even if we accept the argument that the use-of-force resolution places us on a war footing, warrantless surveillance would have been legal for only 15 days after the resolution was passed on September 18, 2001.

    Point #5: The need for quick action does not justify an end-run around the courts

    The FISA law takes account of the need for emergency surveillance, and the need for quick action cannot be used as a rationale for going outside the law. FISA allows wiretapping without a court order in an emergency; the court must simply be notified within 72 hours. The government is aware of this emergency power and has used it repeatedly. In addition, the Foreign Intelligence court is physically located in the Justice Department building, and the FISA law requires that at least two of the FISA judges reside in the Washington, DC area, for precisely the reason that rapid action is sometimes needed.

    If President Bush still for some reason finds these provisions to be inadequate, he must take his case to Congress and ask for the law to be changed, not simply ignore it.

  6. Bosun says:

    Illustrator, Good talking points.

    The world has changed and the threat has changed. We have to be right every time, they (Islamofacists and their perverted religious views) have to be right only once.

    Theoretically, a weaker party should relent to the will of the stronger and the world would settle into a hierarchy with a clearly delineated pecking order. Unfortunately to the chagrin of many an economist, man is not a rational creature and fights even when he cannot possibly hope to win. This sets the stage for desperate polities and non-state actors to take enormous gambles and recreate themselves to effectively wage asymmetric warfare. History teaches us that the weaker party generally adopts the most radical transformations as opposed to the conservative strategy of the stronger power. Stronger powers utilize asymmetric warfare to a lesser degree; they have no need to take risks on technological revolutions as opposed to technological evolutions, as guarantors of the world system they are less likely to attack the infrastructure of the world system or undermine the nation-state model for fear of creating safe havens for non-state actors like Al-Qaeda (1) (and other enemies of the United States.)

    We have not heard the worst or the last of piss ants who flew airplanes into the Pentagon and World Trade Center. They want to destroy us and our society.

    If they find a way, it was over in a complacent flash…..

    There are a lot of factors we have to figure into the NSA equation.
    I would rather be protected and safe, and have some degree of oversight by government agencies. It seems to me that if someone calls a cave on the Afghan – Pakistan border (or a hotel in Manila, Singapore, Vancouver, Toronto, Mexico City, etc. etc,) and the person on the other end is an enemy of our country, we would be negligent not to listen in and find out what the heck is going on.

    (1) Asymmetric warfare From Wikipedia

    We have a history of the Clinton administration (Janet Reno and her legal beagles) pursuing this terrorism thing as a simple criminal issue, and look what happened.

    Gotta go, but will write you more about this later. Leave an email address with Big Dog or contact me through my blog site. Would like to talk with you more about your position.

    And, I understand that eventually we will have a democrat administration and I still would want the ability to listen in on known threats as soon as possible (ASAP) Does not change my position on the matter.


  7. Big Dog says:

    Let me answer your question Illustrator and clear up a few misconceptions you have. One, It does not matter to me who is the President, warrantless surveillance for national security is legal and they can use it and I won’t say a word. Unless of course the donks censure Bush, then I will demand censure of a donk President who does it. Bill Clinton signed EO 12949 authorizing warrantless physical searches of a person’s home right in the US. Where were you on that one? You make a mistake by presuming I have different standards based on party. That is where you are incorrect. I was the first to say that any Congressman who illegally took Abramoff money needs to go to jail and I said Randy Cunningham should have gotten the maximum sentence. It is you guys on the left who have the double standards.

    As for wiretapping. The fourth amendment contains the words unreasonable searches and the fourth amendment is designed to prevent searches without probable cause in criminal cases. The Katz case was about criminal conduct. I do not know if you read what I wrote but the courts have TIME AND AGAIN, ruled that the President has the authority to conduct warrantless surveillance without a warrant. I do not know what is difficult to understand in that. It is beyond me how you guys on the left can say a woman has the right to kill unborn children and that it is a right protected by the Constitution even though the word abortion does not appear in the document yet you deny the fact that the President has the Constitutional duty to protect the country. It is also amazing that the left believes Roe was decided by a court and therefore untouchable but the courts have ruled the President has this authority and you say it is illegal. That is a double standard. Until a court overturns either decision, they are the law.

    You have continued to remark on criminal cases that deal solely with US citizens. The fact is, national security surveillance is not for criminal intelligence gathering though some of the activity directed against us is criminal behavior. We are trying to learn when people are trying to do us harm. This program involves US citizens who are contacting or being contacted by people outside this country. The courts have ruled that if a US citizen is working with the enemy it makes them a foreign agent. In addition, The FISA authorizes the surveillance of people in other countries and their agents without a warrant. It is in section 1802. Remember, we are talking about foreign agents.

    It was nice of you to comment and I appreciate that. I will not believe that this is illegal because you say that it is. The courts have said it is not and until they change that, it is legal. End of story.

  8. Big Dog says:

    Illustrator, I forgot to add that you need to read more carefully. My excerpt was from:

    It referenced the Indianapolis case. It generally helps to read the links to get the full context of a quote.

    So to answer your question, no I did not base this on a ruling by an Indy court I based it on a ruling by the FISA court. Seems they might know a bit more about this and they said INHERENT.

    Hope that cleared it up.

  9. Feingold is censuring the President because Bush performed DOMESTIC warrantless wiretaps. No one is arguing that it is illegal to do warrantless foreign wiretaps. The FISA law is in place so that the President MUST get court authority to wiretap on American soil. The President broke the law.

  10. Big Dog says:

    Unfortunately, Nonneed, the facts seem to get in the way. The first thing to remember is there is a difference between surveillance for criminal activity and surveillance for national security.

    The President authorized the surveillance against those who might be compromising national security. The domestic part only deals with when both parties are in the US. The fact that one was not makes it foreign surveillance and since those people were talking with foreign agents it made them agents of a foreign entity.

    The law is pretty clear about that and the fact is, the court said it was allowed. Feingold can not even get the support of his party. While that is politically motivated (they are worried about losing) it just shows how unpopular the idea is.