Impeachment hearings: The White House prepares for the worst

[kjkent1]

Quote from saxon:

I saw a press conference with Gen. Michael Hayden last night (former head of the NSA) on the issue of communications intercepts. He made the case that, under the 4th amendment, all the president really has to do is show that what he ordered was 'reasonable'. Further, he said that the general guidelines for these intercepts are:

1) Communication must occur between a domestic and a foreign party...AND...there must be some connection to al-Queda.

2) If communications are inadvertently intercepted that do not meet condition 1, they must be expunged.

Take that with however many grains of salt you think appropriate...

saxon

Those guidelines were created by the President himself, in order to "expand" his authority, not expressly provided for by Congressional Act. This is just like when the IRS says that you're supposed to give them a "log" of your auto mileage to prove your deduction if audited. Congress didn't write that into the IRS code. It's an administrative regulation that expands on the statutory construction, because Congress delegates its legislative authority to the Executive Branch as necessary to implement Congress' legislative policy.

So, the head of the NSA, probably just wrote a rule to make it easier to comply with the statute.

HOWEVER, the FISA statute is pretty clear about what the requirements are for warrantless surveillance, unlike the IRS code and the auto mileage log book. The idea that all that's required is "reasonablness," is based on the premise that most administrative requests for court warrants, such as an FDA requested warrant to inspect a drug manufacturing plant, are based on a showing of a "general and neutral enforcement plan."

But, this is totally different. Here, the President is engaging in warrantless searches and seizures. The Fourth Amendment requires "probable cause," i.e., a fair probability that a crime has been committed, before a warrant can be issued, that warrant must be issued by a "neutral and detached magistrate," and any warrantless search, like a search of an auto, requires and exception, and there are no exceptions to electronic surveillance, except possibly (I'm thinking this through while I write it), that the government can assert that this is a "border search," if the calls are initiated by someone outside of the U.S.

Actually, this is a genuine exception, although, as far as I'm aware, it's never been applied to electronic communications. It is, however, fairly routinely used by U.S. Customs to authorize warrantless searches of persons who are crossing the border.

For example, a warrantless "body cavity" search can be conducted at the border, with only "reasonable, articulable facts suggesting that criminal activity is afoot."

So, this may well be a rationale that would work with a conservative Supreme Court, if it chose to back up the Pres.

The contra is that the Congress has created an express mechanism, and expressly stated that the warrantless electronic surveillance must NOT be of "U.S. persons." This argument is pretty persuasive to me, and I think that the Pres has overstepped his authority.

 

[kjkent1]

Quote from DrChaos:

Facts about FISA act:

http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001809----000-.html

§ 1809. Criminal sanctions
Release date: 2005-03-17

(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; or
(2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.
(b) Defense
It is a defense to a prosecution under subsection (a) of this section that the defendant was a law enforcement or investigative officer engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.
(c) Penalties
An offense described in this section is punishable by a fine of not more than $10,000 or imprisonment for not more than five years, or both.
(d) Federal jurisdiction
There is Federal jurisdiction over an offense under this section if the person committing the offense was an officer or employee of the United States at the time the offense was committed.

--------------------------

Note the terms in (a) & (b).

It is illegal to conduct surveillance "under color of law" except as authorized by statute.

Part (b) specifies conditions: search warrant or court order of a competent jurisdiction, which in many cases is the FISA court.

Wiretapping after getting a positive opinion from your hand-picked Attorney General---who just happened to previously be your own counsel, and having this opinion validated by no other court with legal jurisdiction, appears to be precisely surveillance "under color of law" which is prohibited, in explicit "black-letter law", and is a Federal criminal offense.

The argument that surveillance "in time of war" also has been explicitly addressed by statute:

http://www.law.cornell.edu/uscode/html/uscode50/usc_sec_50_00001811----000-.html

§ 1811. Authorization during time of war


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 a period not to exceed fifteen calendar days following a declaration of war by the Congress.
-------------------------------------

There is a provision for when "we're at war".

Exactly fifteen days---and no more---following an explicit declaration of war by Congress.


Summary: all of the Administration's actions and arguments and situations have been considered, and explicitly denounced by the specific text of Federal statute.

This is a Federal crime, as indicated by statute.

You're pretty much correct, but it's still quite possible that the Supreme Court may make a new exception for cross border communications. If it does, then the President will escape by the little hair on his chinny chin chin.

 

[ZZZzzzzzzz]

You really think this Supreme Court, if it ever does hear this case, with Bush's appointees and the other right wingers will take him down?

No way.

Not unless there is a dramatic shift in congress with the 06 elections to a democrat majority.

This, sadly, is about 100% political, and about 0% legal....

Quote from kjkent1:

You're pretty much correct, but it's still quite possible that the Supreme Court may make a new exception for cross border communications. If it does, then the President will escape by the little hair on his chinny chin chin.

 

[kjkent1]

Quote from ZZZzzzzzzz:

You really think this Supreme Court, if it ever does hear this case, with Bush's appointees and the other right wingers will take him down?

No way.

Not unless there is a dramatic shift in congress with the 06 elections to a democrat majority.

This, sadly, is about 100% political, and about 0% legal....

If Alito is confirmed, I'd say that Bush is probably safe. With O'Connor on the bench I'd say too close to call.

It's really a very fine line as to the legality, and for better or worse, it's likely one that the Supremes will get to draw.

 

[ZZZzzzzzzz]

The threat of impeachment was enough for Nixon to resign, because the people of this country were pissed off, and congress knew it. Clinton didn't resign because he had the votes in the senate to block an impeachment, and the public opinion polls were in his favor. Congress will nearly always vote according to party lines....if the electorate is supportive.

At this point, the majority of people rationalize Bush's actions as being okay, since they think it was not really a power grab, but that Bush was sincerely trying to protect the people of America.

I don't know how long this ignorant thinking will last. I read one comment the other day where a Bush supporter was saying essentially that Bush may be wrong, but that it isn't that bad, and he is going to wait until things really are bad before changing his position, i.e. a 1984 type government. Well, by the time it does become a 1984 government if things continue along these lines, it will be too late.

I am amazed how the repubs control the house, the senate, the judiciary, and the executive branch...yet they act as if they are the oppressed ones and try to silence every critic. They don't just want a majority power, they want complete domination...and that is fascism. Even having all this power, their constant attack on the media is most disturbing. Imagine if we had a right wing media.....

We live in a very reactive society, and there is little to no proactive movement to security liberty over security at the moment.

I think Bin Laden should probably go down in history as one of the most influential people of all time. One man and a very small group has cost this country billions of dollars, wasted lives, and the loss of freedom...as well as the growth of the power in the executive branch.

Amazing...not since David slew Goliath.

Quote from kjkent1:

If Alito is confirmed, I'd say that Bush is probably safe. With O'Connor on the bench I'd say too close to call.

It's really a very fine line as to the legality, and for better or worse, it's likely one that the Supremes will get to draw.

 

[AAAintheBeltway]

Quote from kjkent1:

I think perhaps our President has bitten off a bit more than he can chew this time -- although I'm sure he means well (or, I hope he does).

Under 50 U.S.C. 1802(a)(1)(b) the President may conduct a warrantless electronic surveillance if the U.S. Attorney General certifies in writing that: "there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

50 U.S.C. 1801(i) defines U.S. person as: "a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section."


It seems to me pretty straightforward, i.e., the President has openly admitted to wiretapping U.S. persons, who are specifically not amenable to warrantless electronic surveillance under the above-stated laws.

Bush is apparently operating under the belief that Pub. Law 107-40, Section 2(a)("Authorization for Use of Military Force") provides the President with authority "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."

So, the question, it seems is: what facts does the President have, a priori, that the U.S. persons whom the NSA has and is wiretapping, were directly involved in, or harbored those who were directly involved in, the 911 attack.

If no facts exist, then the Pres has violated the statute, and is subject to up to 5 years and $10,000.

Ironically, there is a statutory defense to breaking this law. If the person who violates the law gets a warrant first, even if the warrant turns out to be based on bad facts, the offender cannot be held criminally liable.

But this is exactly what Mr. Bush didn't do. Neither did Attorney General Gonzalez or any of the NSA employees or agents.

Now, having done the analysis, I must say that I doubt that the Senate Judiciary Committee will recommend impeachment, or that the House will vote it, or the Senate will convict. And, Mr. Bush may have saved lives and done everything for the benefit of the People.

But, technically, he broke da law. Not that this actually means much in this particular case.

Kent,

I don't have the statute in front of me, but I recall there being an additional provision that defines foreign power to include anyone acting in concert with or in aid thereof. Accordingly, even a U. S. citizen who was reasonably thought to be acting in concert with alqaeda, eg by conversing with al qaeda operatives, would lose their protection as U. S. persons and subject to warrantless surveillance.

There have also been several circuit court decisions and I believe one Supreme Court decision affirming the president's inherent authority to conduct warrantless national security wiretaps or searches. One decision came from the FISA court. It has also been the uniform positions of past administrations that they held such inherent authority.

Congress can pass any law it wants, but it cannot limit the Executive Branch's Article II powers, not the inherent authority to carry them out. The President has no duty to respect a law that infringes his Article II powers, but of course, he has to be prepared to defend his decision, in impeachment proceedings if necessary.

 

[kjkent1]

Quote from AAAintheBeltway:

Kent,

I don't have the statute in front of me, but I recall there being an additional provision that defines foreign power to include anyone acting in concert with or in aid thereof. Accordingly, even a U. S. citizen who was reasonably thought to be acting in concert with alqaeda, eg by conversing with al qaeda operatives, would lose their protection as U. S. persons and subject to warrantless surveillance.

There have also been several circuit court decisions and I believe one Supreme Court decision affirming the president's inherent authority to conduct warrantless national security wiretaps or searches. One decision came from the FISA court. It has also been the uniform positions of past administrations that they held such inherent authority.

Congress can pass any law it wants, but it cannot limit the Executive Branch's Article II powers, not the inherent authority to carry them out. The President has no duty to respect a law that infringes his Article II powers, but of course, he has to be prepared to defend his decision, in impeachment proceedings if necessary.

For the purposes of warrantless electronic surveillance, 50 U.S.C 1802 restricts the definition of "foreign power" to:

"(1) a foreign government or any component thereof, whether or not recognized by the United States;
(2) a faction of a foreign nation or nations, not substantially composed of United States persons;
(3) an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments;"

So, if you accept that Art. II, Section 3, rquires that the President must see that the "laws be faithfully executed," then he would be restricted by the above definition, regardless of his inherent authority.

Obviously, if the USSC determines that the Executive Branch's inherent authority includes the option of ignoring any and/or all Acts of Congress (i.e., "unitary executive doctrine"), then your analysis will be correct, and Congress will have only impeachment as a resort to unilateral Executive acts.

I don't subscribe to the above theory. I believe that Congress is the Branch of government closest to the people, which is why it is described in Article I of the Constitution, and not II or III, and that consequently, the President must obey Acts of Congress, lawfully signed by the Chief Executive, in exactly the same manner as a corporation's CEO must abide by both the bylaws and articles of incorporation, and not merely to the articles.

I think that this is a very appropriate analogy. Congress is the Board of Directors of the U.S., and the States and the People are the shareholders. The President is both the CEO and the Chairman of the Board, however, neither role grants unilateral inherent authority to ignore bylaws OR articles, once lawfully enacted.

 

[DrChaos]

The President has no duty to respect a law that infringes his Article II powers.

Yes, he does, until and only if the law is declared un-Constitutional.

Legislative power---defining laws---is vested exclusively with Congress. The President must petition Congress to change a law he does not want.

Article I. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Define the inherent powers and procedure for cirvumenting Article I. I see none.
Here is Article II.
http://www.law.cornell.edu/constitution/constitution.articleii.html#section1

Here are some powers given to Congress in the military sphere:

(Article I)
To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

Here is what the President is granted in the military sphere:

(Article II)
2. 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

Here is what the President is required to do regarding laws:

he shall take care that the laws be faithfully executed

 

[kjkent1]

Quote from DrChaos:

Yes, he does, until and only if the law is declared un-Constitutional.

Legislative power---defining laws---is vested exclusively with Congress. The President must petition Congress to change a law he does not want.



Define the inherent powers and procedure for cirvumenting Article I. I see none.
Here is Article II.
http://www.law.cornell.edu/constitution/constitution.articleii.html#section1

Here are some powers given to Congress in the military sphere:


Here is what the President is granted in the military sphere:


Here is what the President is required to do regarding laws:

I don't disagree. I'll only say, that, unlike a corporation, the U.S. Government has a third branch, i.e., the Judiciary. And, that branch gets to "say what the law is." And, the fact is that the USSC has granted the Executive Branch considerable inherent authority, such as the authority to reasonably interpret the Acts of Congress.

That is the precise issue that Bush is raising, i.e., that Pub. Law 107-40 grants him broad authority to catch the terrorists, by use of "all necessary force." If I were representing the Democrats, I'd say that the phrase doesn't include domestic citizen electronic surveillance, because if it did, then the Congress would have expressly overruled the FISA, in the 107-40. If I represented the Republicans, I would argue that the law permits the President latitude to reasonably violate the FISA, so as to catch the bad guys/gals.

And, the USSC probably will get to decide this issue in the not to distant future, assuming that a special prosecutor is appointed to investigate and he/she starts looking for the documentation surrounding who was surveiled.

Without that, however, I doubt that anyone will be able to show standing to sue in Federal Court, because they won't be able to prove that they were injured, and even if they do, the government can probably get a dismissal based on the Political questions doctrine whereby Federal courts will not decide issues of foreign relations or military defense policy decisions.

Although, someone who routinely communicates to overseas persons with muslim sounding last names, or who live in Islamic countries that are adverse to U.S. interests, could probably state a reasonably concrete injury in fact, to give standing to sue the government for the surveillance, assuming that the person was arrested and later found innocent of any wrongdoing.

 

[DrChaos]

Surveillance is not "force", otherwise the FISA act could be construed as authorization to assassinate anybody who is the subject of a search warrant by the FISA court.