zulu9812
The Newbie Nightmare
I came across this interesting op-ed piece
Bush likes to pretend that this is a new kind of war, in which the rules are outdated and thus should not apply. However, it is clear that the States has been through all of this before and that there is precedent.
Bush Knows the Wiretaps Are Illegal
This morning I read an article on Yahoo! News entitled "Docs: Similar Wiretap Debate 30 Years Ago." You can read the article at the link below:
"Docs: Similar Wiretap Debate 30 Years Ago"
The important excerpts are here:
An intense debate erupted during the Ford administration over the president's powers to eavesdrop without warrants to gather foreign intelligence, according to newly disclosed government documents. George H.W. Bush, Donald Rumsfeld and Dick Cheney are cited in the documents.
[snip]
In another document, Jack Marsh, a White House adviser, outlined options for Ford over the wiretap legislation. Marsh alerted Ford to objections by Bush as CIA director and by Rumsfeld, Henry Kissinger and Brent Scowcroft over the scope of a provision to require judicial oversight of wiretaps. At the time, Rumsfeld was defense secretary, Kissinger was secretary of state and Scowcroft was the White House national security adviser.
[Emphasis mine.]
After reading the article, I began to wonder if the Supreme Court had made any rulings on warrantless wiretaps during the relevant period (1970s). I searched Supreme Court opinions on the Legal Information Institute's web site, and found this gem:
United States v. United States District Court
The important excerpts are here:
No. 70-153 Argued: February 24, 1972 --- Decided: June 19, 1972
The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of
gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.
On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld. Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U.S.C. � 2511(3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government." The Government relies on � 2511(3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval."
Held:
1. Section 2511(3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 301-308. [p298]
2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 314-321; 323-324.
(a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314-315.
(b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security suveillances are conducted solely within the discretion of the Executive Branch, without the detached judgment of a neutral magistrate. Pp. 316-318.
(c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321.
[Emphasis mine]
I think it fairly safe to assume that George H.W. Bush, Donald Rumsfeld and Dick Cheney had to be aware of this opinion, and it was probably what they were trying to figure out a way around. If the current Vice President, Secretary of Defence, and President's father know about this decision, I think it is quite probable that at least one of them has let President Bush know about this opinion. Also, it would be extremely difficult to believe that Attorney General Alberto Gonzales could thouroughly research the issue of warrantless wiretaps without coming accros this decision. It only took me five minutes to find it.
President Bush is claiming that he has a legal right to conduct warrantless wiretaps on persons within the borders of the United States, even knowing that the Supreme Court has previously ruled against it.
President Bush also claims that he is given authority to conduct the warrantless wiretaps by the Constitution, and by the Congress.
Let's take a look at the issue of congressional authorization first. The answer is simple. The Congress does not have the power to authorize the Executive to violate the Constituion, and to defy the Supreme Court. The only way the Congress can arrange for that type of authorization is to amend the Constition.
Now let's look at the claim of the warrantless wiretaps being authorized by the Constitution. Presidential powers are described in the Constitution in article 2, secion2. It is as follows:
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; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.
The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.
There is nothing in there giving the President the power to authorize warrantless searches.
Now let's take a look at the FISA (Foreign Intelligence Surveillance Act) law. You can read it here:
Foreign Intelligence Surveillance Act
The important excerpts are here:
(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
(C) the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title;
The information above tell us that the Constitution doesn't authorize the President to conduct warrantless wiretaps on domestic persons, nor has the Congress. The FISA law specifically prohibits it, and the Supreme Court has ruled it illegal.
Keep in mind that the President can wiretap calls from foreign terrorists to domestic persons, or from domestic persons to foreign terrorists. All he has to do is get a warrant. And, he can even wiretap for three days before actually obtaining a warrant. Clearly, getting a warrant is no impediment to performing wiretaps unless the Administration is wiretapping people it knows the Judiciary would never authorize.
So, why all the furor against having to obtain a warrant?
I can only conclude that the administration feels that having the Judiciary's top secret court find out who they are wiretapping presents a much graver risk to them than to violate the Constitution and the FISA law, and to defy the Congress and the Supreme Court.
Bush likes to pretend that this is a new kind of war, in which the rules are outdated and thus should not apply. However, it is clear that the States has been through all of this before and that there is precedent.
Giving up your way of life to combat people dissuading you from your way of life? 
Why use laughter to feel comfortable of your ineptness of understanding 9'11............Oh,must be the cold weather in Norway that frozen your brain
Get back to the topic at hand.
]into your alliance,makes no difference to me.
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