Constitutional experts: domestic spying lacks "any plausible legal authority"

Sorry for the formatting. It looks fine in the editing window... Hm...

i don't know - themobsolete looks like a great new word!

make the bush mob obsolete.

Who cares what partisan activists the likes of Ramsey Clark think.

This is what the court said.

Thank You for Wiretapping
Why the Founders made presidents dominant on national security.

The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "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."

Ummm.... I don't know if you are reading the WSJ disingenuously or intentionally to mislead.

One commentator notes: As for the 9 words of dicta from In re Sealed Case — "FISA could not encroach on the president's constitutional power" — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable.link

The Sealed Case was intended to justify FISA as a way of side-stepping the normal procedure. I encourage you to read the linked article in detail.

Meanwhile the ACLU has discovered that dozens of domestic organizations and individuals have been spied upon under this initiative, including such "extreme international terrorist" organizations such as the American Friends Service Committee (a pacifist Quaker service group), Denver CopWatch, The Human Bean (a fair trade retail shop), the National Lawyers Guild, and United for Peace and Justice.

Finally, Ramsay Clark is not a signator to the letter mentioned in my post, so it's a total red herring to dismiss the thesis by mentioning him. What was, in point, the intention of your comment? To inform or simply discredit through misdirection?

I realized I hadn't linked the letter to Congress in the article above. That link's now there. It also addresses the Sealed Case issues.

Finally, Ramsay Clark is not a signator to the letter mentioned in my post, so it's a total red herring to dismiss the thesis by mentioning him. What was, in point, the intention of your comment? To inform or simply discredit through misdirection?

Since you did not link the letter, we do not know who signed it. Your reference to a "former attorneys general" hints at the gadefly Ramsey Clarke. Not knowing that it was Ramsey Clarke is why I wrote "the likes of".

The upshot is that this is a highly partisan opinion which serves non-other than highly partisan political ends.

I am having problems with you links. The link that reads "dozens of domestic organizations and individuals " simply points to a page describing the ACLU.

I read the page you linked to "The Volokh Conspiracy" which appears to be a conversational blog, not the legal opinion of scholars. The unsigned author of the primary post flat out stated that he/she was not an expert on the matters but had "feelings" on the matter.

The bottom line is not whether in the end the Administrations actions were legal or illegal but whether the Administration was acting in accordance with the legal counsel of the Attorney General and staff counsel which they were.

As for the matter of ""any plausible legal authority" --- U.S. v. Truong clearly states that the authority is concrete not plausible.

ahhh... another day of defending criminals, hey greg?

wake up and smell the truthiness.

U.S. v. Truong clearly states that the authority is concrete not plausible.

In a word--no.

US v Truong related to an incident that occurred before the FISA law was passed (and the court acknowledged that). Once the FISA law passed in 1978 such spying was declared illegal.

Greg, see the link in the story on the text chimed in on the Bush administration's attempt -- that's where the letter I cited lives. You can examine the signatory folks yourself.

It isn't a matter of legal or illegal The administration will do what it wants to do, while preaching the rule of law to the middle east. The saddest part is the American people just don't care.

Thanks for the link Shava. With the exception of Willians Sessions who precided over an FBI during an era where it built up the walls that made 9/11 possible, the remainder of the list is a who is who among the Clinton Justice Department and political partisans.

Now would you please link us to legal scholar who do not agree with these partisans.

Once the FISA law passed in 1978 such spying was declared illegal. - Jade

The question is whether FISA is constitutional. Just because Congress passes a law that does not mean that the law is constitutional. For instance if congress passed a law making the veto of a Congressional bill illegal - would that mean that the Administration has to abide by it?

Of course not. It would be the constitutional DUTY of the President to assert his power.

In this case, the constitutionality of Congress mandating that the Administration cannot wiretap communication crossing our nations borders for intelligence purposes -- is clearly in play.

The letter that Sheva linked repeatedly walks right to the brink of admitting this then pans the issue by saying that it raises "constitutional concerns".....darn right it does.

The administration is doing the right thing and the Democrats are again sacrificing the safety and well being of American citizens for partisan political gain.

So what else is new?

Greg, you have a lousy understanding of the separation of powers. If Congress passes a law that the President considers unconstitutional, then it's his duty to challenge the law and bring it up to the Supreme Court. THEY and only THEY are the arbiters of Constitutionality.

If the president ignores a law he finds inconvenient, he is no better than a private citizen who breaks a law because he or she finds it inconvenient.

I recommend a basic civics class. As far as someone who disagrees with me, I thought you'd posted the WSJ link, and I'd rather much responded to it.

Hmm... There's a time factor here that is important.

Like civil disobedience, breaking a law you believe to be unconstitutional still calls for whatever punishment that law specifies until it is overturned.

You will still be arrested and sent to jail for the first four levels (isn't it?) of appeals between you and the Supreme Court -- and then set free *IF* the law is determined to be unconstitutional. Are you proposing that since Bush ignored the law, we jail him until the case can reach the Supreme Court?

If you remember 8th grade civics, that is exactly how "not binding" a law is if it has not yet been determined to be unconstitutional by the Supremes.

And, just for your informaiton, I teach 6-12th graders civics, so I do kind of remember the content.

Sheva, you are incorrect in your interpretation of constitutional law.

You are correct that the Supreme Court has the final say on law but you are completely off base on your assumption that unconstitutional laws are binding.

To accept your position you would have to believe that a court would find a law unconstitutional but STILL punish someone for breaking it.

That is simply not the case. A legislative act found to be unconstitutional is simply not a law and has no power to bind. It is as if it never existed.

I would have thought that you would have remembered this from high school civics.

Like civil disobedience, breaking a law you believe to be unconstitutional still calls for whatever punishment that law specifies until it is overturned.

Not at all. It depends entirely on what the lower court determines. If the lower court finds that the law is unconstitutional, by definition, the court cannot apply the law.

As a civics teacher I would have assumed that you know this.

The general rule is that an unconstitutional statute, though having the form and the name of law, is in reality no law, but is wholly void and ineffective for any purpose since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it; an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed .. An unconstitutional law is void. (16 Am. Jur. 2d, Sec. 178)

But no one complained when Clinton and Carter did it.

Now why was that?

Executive orders by previous administrations including Clinton's and Carter's authorized the attorneys general to exercise authority with respect to both options under FISA.[13] These legal and constitutional orders were exercises of executive power under Article II consistent with FISA. In Clinton's executive order, he authorizes his attorney general "[pursuant] to section 302(a)(1)" to conduct physical searches without court order "if the Attorney General makes the certifications required by that section".

Since the full details of the NSA surveillance operation are still somewhat unknown, the ultimate issue legality is largely unknowable. The debate surrounding President Bush's authorization of warrantless surveillance is principally about the extent of the authority the Executive Branch derives from its constitutional and statutory authority to protect the nation from attack and its relation to restrictions imposed by FISA. The legal community is split, with some lawyers; like Suzanne Spaulding, former general counsel for the Intelligence Committees of the House and Senate arguing that FISA clearly makes the wiretapping illegal[10]; and others like John Schmidt, former Associate Attorney General arguing either that Congress implicitly authorized an exemption to FISA or that FISA cannot bind the president in a time of war.[11]

The power of judicial review is vested in the Supreme Court for federal law, and in the state courts for state law. A state court can not, for example, overturn a federal law. They can send the law up to the next level of judicial review to the Supreme Court. State courts can give an opinion that the law should stand, and the plaintiff can decline to appeal, but the state courts can not overturn federal law.

That just wouldn't make any sense, constitutionally. We'd have no federalized power in the court system at that point.

Really, Greg, you would save everyone time if you actually went out and researched these things instead of just making assertions.

More comments later, must run.

Sheva, I made no reference to state courts. I am not sure what you hope to accomplish by tossing ths into the discussion.

Frankly I am deeply concerned that someone with your apparent lack of civic knowledge is teaching civics, but why am I not surprized?

I think Shava and Greg are talking somewhat at cross purposes. Shava is correct that a state court cannot overturn a federal law. Greg is correct that a lower federal court than the Supreme court can do so. For the latter statement, here is an account by CBS News about a lower court overturning an internet anti-porn law.

Incidently, Greg, I find it a bit of a jar every time you refer to Shava as Sheva. Could you make an effort to use the correct spelling in the future? Thanks.

Shava, I apologize for the misspelling of your name. This was not meant to offend, rather it is the result of poor eyesight.

As for the state courts....that is a red-herring. Any discussion of state courts is simply not relevant in this context.

Not a problem! My full name is Shava Nerad, and I used to get junk mail for a while to "Dr. Shave Nerd." After that, nothing phases me. *giggle*

:)