FISA Court to Rule Wireless Surveillance Was Legal<br>Correction: Nope, Decision Concerns Structure Created by 2007 Congressional Act, Not Wiretaps on Presidential Authority Alone

FISA Court to Rule Wireless Surveillance Was Legal
Correction: Nope, Decision Concerns Structure Created by 2007 Congressional Act, Not Wiretaps on Presidential Authority Alone

Of course it is. Obama's about to become President and we can't have a Democratic president shackled the way Bush was.

Heck, if a terrorist attack occurred, Obama might be blamed for it. And we can't have that blame falling on The One.

A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans’ private communications may be involved, according to a person with knowledge of the opinion.
The court decision, made in December by the Foreign Intelligence Surveillance Court of Review, is expected to be disclosed as early as Thursday in an unclassified, redacted form, the person said. The review court has issued only two other rulings in its 30-year history.
The decision marks the first time since the disclosure of the National Security Agency’s warrantless eavesdropping program three years ago that an appellate court has addressed the constitutionality of the federal government’s wiretapping powers. In validating the government’s wide authority to collect foreign intelligence, it may offer legal credence to the Bush administration’s repeated assertions that the president has constitutional authority to act without specific court approval in ordering national security eavesdropping.
The appeals court is expected to uphold a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August of 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications, according to the person familiar with the ruling.

I guess my snark about questioning the timing is a bit paranoid. But this is a a very rare public ruling from a court which usually delivers its findings secretly. Can I question the open nature of the ruling, clearing the path for Obama to do what Bush did without challenge?

There's this, of course:

Barack Obama, then a United States senator, was highly critical of the presidential wiretapping power claimed by Mr. Bush, and threatened to filibuster the final bill. But he ultimately voted for it, angering some of his liberal supporters. His administration is expected to examine possible changes in wiretapping law and operations, a review that will probably be affected by the findings of the FISA appeals court.

Among those liberal supporters angered? The New York Times, which argued passionately and quite wrongly this was all terribly, plainly illegal.

Which now reports this story, failing to note its own error.

I once again renew my charge of blackmail against the liberals and the MSM: Either put our boy in office, or we'll cripple America's ability to defend itself against terrorism. Our boy, or thousands dead. You choose.

Correction: Gabriel writes:

In point of fact, the decision won't be on whether the warrantless wiretapping treasonously exposed by the NY Times in December 2005 is or was legal. The decision is about whether Congress had the authority in August 2007 to pass legislation amending FISA which would make similar programs from that point going forward legal.

Despite Ed Morrissey's assertion that the ruling will implicitly support the scope of the President's authority to conduct terrorist surveillance, presidential authority supplemented by the authorization of Congress (e.g. the August 2007 amendment to FISA) is manifestly different from presidential authority on a subject for which Congress has already spoken in the contrary (the original FISA). Remember Youngstown?

The Youngstown reference is to the steel seizure case, where Justice Jackson (IIRC) elaborated a three-category analysis of war powers. Basically--

1) the president acting against Congress' express legally-promulgated will, in which case his war powers are at their weakest, as he has his inherent power but not a dollop of power Congress can bestow to him;

2) the President acting with Congress' express authorization, in which case the President's war powers are at their strongest, as he has all of his inherent power plus every dollop of additional power Congress can constitutionally grant him;

and 3) the "Twllight Zone" where the President acts in the face of Congressional silence, where his powers are somewhat middling; he relies on his own power, plus, I guess, that power he can exert given Congressional inaction.

The ruling is blessing a Category 2 situation (Congress authorizing the President). Bush's previous executive-only wiretapping was Category 3, the "twilight zone" situation, not apparently addressed by this ruling.

Posted by: Ace at 01:37 PM

Comments

1 It's only legal because Obama can be trusted.

It was illegal when Bush did it. Because of Shotgun Cheney and his Halliburton cronies were using it to spy.

There's no contradiction here.

Posted by: Warden at January 15, 2009 01:44 PM (KXbGD)

2 Once Bush leaves, we won't have to worry about federal agents peering through library book shelves to see what we're reading.

Posted by: Warden at January 15, 2009 01:45 PM (KXbGD)

3 "boy?"

Seriously, the screeching, wailing, whining and hand-wringing by the same fucking loons of the left who regarded this wire-tapping as further proof that Bush was a facist dictator should begin any second now.

Aaaaaaaaaaaaaaany second now......

Posted by: wiserbud at January 15, 2009 01:46 PM (IHbof)

4 In point of fact, the decision won't be on whether the warrantless wiretapping treasonously exposed by the NY Times in December 2005 is or was legal. The decision is about whether Congress had the authority in August 2007 to pass legislation amending FISA which would make similar programs from that point going forward legal. Despite Ed Morrissey's assertion that the ruling will implicitly support the scope of the President's authority to conduct terrorist surveillance, presidential authority supplemented by the authorization of Congress (e.g. the August 2007 amendment to FISA) is manifestly different from presidential authority on a subject for which Congress has already spoken in the contrary (the original FISA). Remember Youngstown?

Posted by: Gabriel Malor at January 15, 2009 01:47 PM (XQywO)

5 WOW - heads must be exploding at Firedogswamp.

Posted by: Topsecretk9 at January 15, 2009 01:48 PM (SjbHx)

6 At times like this I ask myself what would Brian Boitano do?

I'd bet he'd kick an ass or two!

And that's what Brian Boitano would do.

Posted by: McLovin at January 15, 2009 01:49 PM (RwvN1)

Don't kid yourself about Obama taking the rap for a terrorist attack. Anything happening before the 2010 midterms, minimum, will be Bush's fault.

By definition.

Posted by: Zanzibar Buck-Buck McFate at January 15, 2009 01:50 PM (Hj9yW)

Once Bush leaves, we won't have to worry about federal agents peering through library book shelves to see what we're reading.

And if you DO, the PC Police will come and smack you around. Shame on you for not trusting your gubbmint.

/iSarc... for now

*eats*

Posted by: Grue in the Attic at January 15, 2009 01:52 PM (k58xs)

9 All Glory to the Hypnotoad.

Posted by: Techie at January 15, 2009 01:53 PM (906oR)

10 What do they mean "international" calls? I thought all FISA was used for is to snoop on Howard Dean and stuff. Since when did this cross-border stuff enter the picture? Never seen that adjective in the Slimes before.

Posted by: Fresh Air at January 15, 2009 01:54 PM (gQlSm)

11 Anything happening before everyone born after the 2016 election dies of old age will be Bush's fault.

My parents still blame Nixon for shit that happened last week.

Posted by: EVXuq at January 15, 2009 01:54 PM (EVXuq)

12 "Either put our boy in office, or we'll cripple America's ability to defend itself against terrorism. Our boy, or thousands dead. You choose."

Duh...this was never about ideology, it was always about party.

Democrat or die!

Posted by: JB at January 15, 2009 01:59 PM (KlSTV)

I love how American politics is so much in line with the lying, cheating, stealing, and corruption that is so common in the politics of the rest of the world.

When can we have a king?

I was getting tired of govenment of the people, by the people, and for the people.

Lie to me some more so I can vote for you.

Posted by: Harry at January 15, 2009 01:59 PM (1PrID)

14 Bush and Cheney are owed BOATLOADS of apologies they'll never get.

Posted by: SDJ175 at January 15, 2009 01:59 PM (/bVuS)

Heck, if a terrorist attack occurred, Obama might be blamed for it. And we can't have that blame falling on The One.

What's this "if" business?? The Great Prophet Joebiden the Emplugged has already promised that such a battle shall come to pass and that the people shall fall into despair and woe, and that when this age of suffering descends upon us we should not gaze with stricken eyes of hatred upon His Holiness The One with blame in our hearts.

*eats*

Posted by: Grue in the Attic at January 15, 2009 01:59 PM (k58xs)

16 I dunno, I think they're gonna cripple our ability anyway.

Posted by: Some Guy at January 15, 2009 02:02 PM (lPxkl)

17 Man you really know how to push our buttons.

Posted by: Cluebat from Exodar at January 15, 2009 02:05 PM (WGcw3)

18 "Hello? Ministry of Love here. Big O is in charge. Wiretaps are privacy. Freedom is slavery. Ignorance is truth. See you when the clock strikes thirteen."

Posted by: George Orwell at January 15, 2009 02:05 PM (6uMRO)

19 You better listen to me, 'cause I'm the most experienced VP since anybody. And my penis smells of the finest aged cheese.

Posted by: Joe Biden at January 15, 2009 02:05 PM (YCVBL)

20
We won't hear a peep when Obama fires a bunch of US Attorneys, next month, either.

Posted by: Darling at January 15, 2009 02:07 PM (rAEZo)

21 Just yesterday I was complaining (in a nice way, of course) about all the Obama et al flip flops on stuff that Bush took so much heat on.

It's only Wednesday, I said, and:

Gitmo won't close.
Don't Ask Don't Tell is one of those things that won't get done.
Finding Bin Laden - not really so important right now.

Someone later pointed out that the middle class tax cut isn't even worth discussing and I heard earlier today that there's some Democrat resistance to ending the "Bush tax cuts for the wealthy".

Now the evil warrantless wiretaps are O.K., after all.

Are leftist and progressive (that's a distinction without a difference, if you ask me) heads exploding yet, or is this some alternate universe that I've stumbled into during the last binge of excessive masturbation involving auto-erotic asphyxiation.

Posted by: SlaveDog at January 15, 2009 02:08 PM (H6Jyg)

22 Yeah, what up with the international bit? Can anyone explain?

Posted by: Topsecretk9 at January 15, 2009 02:08 PM (SjbHx)

We won't hear a peep when Obama fires a bunch of US Attorneys, next month, either.

Yeah, I've been expecting this one. He'll remove just as many as President Bush did (if not more), and the MSM will think it's just peachy - "He's bringing new perspectives into the judicial system!"

Posted by: Fernandozer at January 15, 2009 02:11 PM (uHvsp)

24 Oh, the lefty blogs are busy twisting themselves into pretzels trying to find one nugget of Bush still broke the law yada yada

Posted by: Topsecretk9 at January 15, 2009 02:12 PM (SjbHx)

25 Hypocrisy. Learn it and embrace it.

Posted by: Ginger at January 15, 2009 02:13 PM (hCfpu)

Easy to do when the value of truth and honesty is zippo for you.

*eats*

Posted by: Grue in the Attic at January 15, 2009 02:15 PM (k58xs)

27 Say whatever, do whatever, but if an attack hits this country in the next 2 years it will be on Obama's head alone. The Libs have been screaming Bush was over zealous for years, there is no way Obama can ever claim he's more zealous...and fail.

Posted by: Rocks at January 15, 2009 02:16 PM (Q1lie)

28 Rocks

As long as Obama is not reading My Pet Goat he will get a pass form the asshole lying pieces of shit known as the media and Democrats.

Posted by: Topsecretk9 at January 15, 2009 02:18 PM (SjbHx)

29 You know I would have sworn the Slimes repeatedly referred to these wiretaps as "domestic spying." I guess my memory could be failing, though.

Posted by: Fresh Air at January 15, 2009 02:20 PM (gQlSm)

30 Fresh Air

I'm with you and I don't get it either.

Posted by: Topsecretk9 at January 15, 2009 02:24 PM (SjbHx)

31 I'm getting a bumper sticker that says, "Meet the new boss, same as the old boss." I'll be interested to see what kind of reactions it gets.

Posted by: George Costanza at January 15, 2009 02:24 PM (z4es9)

You know I would have sworn the Slimes repeatedly referred to these wiretaps as "domestic spying."

Of course. That's because when Obama does (and he most certainly will) they want to have laid a bit of foundation for now calling them "international."

Posted by: Gabriel Malor at January 15, 2009 02:26 PM (XQywO)

33 TSK9,
It won't help him. Keeping us safe is the only thing Bush 43 gets positive marks for, he can't do less than Bush and avoid looking weak and ineffectual.

Posted by: Rocks at January 15, 2009 02:30 PM (Q1lie)

"I once again renew my charge of blackmail against the liberals and the MSM: Either put our boy in office, or we'll cripple America's ability to defend itself against terrorism. Our boy, or thousands dead. You choose."

Yes, Ace speaks the naked truth. It is not that the Demolibacademmedia wants Americans to be killed (although many of them do want just exactly that), it is that their kumbaya level of understanding of the world lets them make this threat, and even act on it (NYT), while pretending it could not come true!

It's like threatening your kids with a visit from the boogey-man if they don't do what you want. Unfortunately these people are in denial about the fact that in the real world, there are real boogey-men, in real boogey-stans, and they really will happily murder their kids and thousands more if given half a chance.

Even many who grasp that reality still fail to comprehend that the grievances that they see as justifying this evil are simply there to help naieve do-gooders like them keep our moral defenses off-balance.

Posted by: sherlock at January 15, 2009 02:31 PM (8V5Ut)

My parents still blame Nixon for shit that happened last week.

I'm still blaming LBJ for the sub-prime neighborhood that starts about 6 blocks north of me. Great society my ass.

Seriously, the screeching, wailing, whining and hand-wringing by the same fucking loons of the left who regarded this wire-tapping as further proof that Bush was a facist dictator should begin any second now.

In order to posess any intellectual consistancy you must first posess a small sliver of fundamental honesty. Absence of the latter dictates absence of the former. Do I really need to take this thought proess any further?

Posted by: pendejo grande at January 15, 2009 02:34 PM (tlpWV)

36 I blame Nixon for Carter

Posted by: toby928 at January 15, 2009 02:36 PM (PD1tk)

37 So can we get group rates on international phone sex calls now?

Posted by: this buddy of mine at January 15, 2009 02:36 PM (h8m1I)

I'm getting a bumper sticker that says, "Meet the new boss, same as the old boss." I'll be interested to see what kind of reactions it gets.

So, you own an auto paint and body shop?

Posted by: sherlock at January 15, 2009 02:36 PM (8V5Ut)

39 I blame Rousseau for all these assholes.

Posted by: Fresh Air at January 15, 2009 02:40 PM (gQlSm)

40 Ace, are you in here? I was thinking about a conversation I had about being paranoid and I was wondering why you were thinking about doing something vicious to me on Jan.20th. Did I break a deal?

Posted by: mike at January 15, 2009 02:46 PM (GNCy6)

41 So, you own an auto paint and body shop?

No, see, this is the beauty of it. If anybody gets hacked off at me, I'll just say I'm a big Who fan!

Posted by: George Costanza at January 15, 2009 02:46 PM (z4es9)

The spin in which Greenwald is about to engage will make the Hadron collider look like molasses in winter. Particularly this winter.

Posted by: Circa (Insert Year Here) at January 15, 2009 03:09 PM (B+qrE)

43 here is the AP on it (Ace might need to re-edit his headline yet again)

A special appeals court has upheld a Bush administration program of warrantless surveillance.

In a ruling released Thursday, the court embraced the Protect America Act of 2007, which required telecommunication providers to assist the government in intercepting international phone calls and e-mails overseas for national security purposes.

The decision was made last August but just released in an edited form Thursday to omit classified information. An unidentified telecommunications company had challenged the law.

The U.S. Foreign Intelligence Surveillance Court of Review said that requiring a court warrant would hinder the government’s ability to collect time-sensitive information.

Posted by: Topsecretk9 at January 15, 2009 03:21 PM (SjbHx)

44 While the decision is of a passing, esoteric interest, why go public with it? Nobody without a need to know needed to know this; hell most of the people with a need to know don't need to see the opinion - as simple carry on would be enough.

Is that Obama poster maker site still up? -- "Carry On" would make a nice poster for National Security crowd.

Posted by: Jean at January 15, 2009 03:25 PM (xCBQ4)

45 Topsecret--

Shouldn't that have read the QUOTE Protect UNQUOTE America Act...?

Posted by: Fresh Air at January 15, 2009 03:25 PM (gQlSm)

46 What exactly is Gabriel saying? That the dicta in Youngstown is the law of the land? I thought it was just that, dicta. As far as whether the President can act in a contravening manner with respect to an act of Congress, the answer is whether the law is constitutional. Additionally, it must be asked if the has been superseded by other legislation (war authorization). Those questions have not been answered as far as I know.

Posted by: ricky at January 15, 2009 03:27 PM (qfzyC)

47 I understand Gabriel's citation to Youngstown, and agree that today's case doesn't appear to directly address the legality of the pre-2007 program. However (without having read the opinion), I believe that this ruling will bolster the abilities of future CINC to argue that the court's previous dicta in Truong -- that the President has inherent Constitutional authority to conduct warrantless surveilance for the purpose of gathering foreign intelligence -- is correct.

Youngstown has always been a weak case for supporting limits on the entire scope of the President's war powers, becuase the seizures contemplated by Truman -- though undertaken during war (undeclared) and for wartime purposes -- would have been undertaken in a purely domestic venue against purely American persons with clearly protected property rights under the Constitution. IOW, it is not at all clear that seizing private American property without due process is one of the arrows in a President's quiver as an actual, Constitutional "war power."

The Court in Youngstown noted:

"The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress -- it directs that a presidential policy be executed in a manner prescribed by the President."

This is a rational argument. There is no immutable link between war and seizing production. That link is very attenuated and therefore it is proper for the Court to think of the Youngstown seizures to be more of a "lawmaking" function that is the appropriate realm of Congress. It is conceivable to believe that when Congress authorizes the use of force by the Executive branch, it probably has not specifically contemplated and authorized the seizure of American property.

On the other hand, it is simply not conceivable that Congress would authorize the use of force, but NOT authorize foreign intelligence gathering at the same time. Gathering intel on your enemies is a quintissential, executive "war power". It is not a "lawmaking" function to begin with.

For that reason, Youngstown really only stands for the proposition that seizing steel mills is not an "inherent" Presidential power, and absent that inherency, the President's authority is at a "low ebb" when he exercises it without Congressional authorization. Youngstown should NOT be held to address Presidential power more broadly than that.

For example, nobody would argue that, under Youngstown, the President's pardon power is at a "low ebb" if it hasn't been given separate Congressional authority.

Posted by: Guvnah at January 15, 2009 03:29 PM (Rg8DN)

48 oh what a kidder:
"Heck, if a terrorist attack occurred, Obama might be blamed for it. "

ksnksnksnksnksnk snurk HA HA HA HA HA HA HYUK HYUK HAW HAW HAW HAW HAW coff coff HAW HAW HAW heee hee heee, but seriously...

Posted by: Stoop Davy Dave at January 15, 2009 03:34 PM (2Aokz)

49 Guvnah, nice post.

Posted by: ricky at January 15, 2009 03:45 PM (qfzyC)

50 Hey, where's Seattle Slough to explain why this is OK now? Seems to me that he had a bug up his ass about FISA lo these last 7 years.

Posted by: sears poncho at January 15, 2009 03:51 PM (uj/0b)

51 OK, I must reluctantly make this point.

When many on the left started blaming George Bush for the 9/11 attacks--and here I don't mean the lunatics who think he ordered them or knew specifically what was coming and when; I mean the folks who said he had, geez, almost eight whole months to head them off and he did nothing!--many of us on the right observed, quite rightly, that these had been in the works for awhile, that there was a trend in Islamic terrorism throughout the '90s that led up to them, and that just maybe Bill Clinton deserved a share of the blame for not taking the fight to al Qaeda a bit harder.

If, and I pray it doesn't happen, we get hit hard early in Obama's presidency, many on the left will insist that it's George Bush's legacy, and remind us of our earlier stance of weighing eight years against eight months.

In some cases this will be grossly unfair. In others--for instance if, as seems depressingly likely, Iran gets the bomb and we come to regret it--they may just have a point. This of course leaves aside the question, "OK, wise lefty critic: If he had taken whatever action was necessary, you would of course have put politics aside to support him, right?"

Posted by: JPS at January 15, 2009 03:54 PM (fnS5r)

52 Fortuitous timing... I'd written it before I saw your inquiry... but thanks.

Posted by: Guvnah at January 15, 2009 03:55 PM (Rg8DN)

This of course leaves aside the question, "OK, wise lefty critic: If he had taken whatever action was necessary, you would of course have put politics aside to support him, right?"

Problem, of course, being that lying is second nature to these sorts of people. When no one calls a Demoncrat on some of the stunts they pull in office, and you ask a Lefty "well if it had been a Republican they would have gotten called on it, right?" many will answer No, when the obvious answer is Yes. Same here... many will say "Yeah I would have supported him" but had it actually happened... well, we would have gotten what we have already gotten.

*eats*

Posted by: Grue in the Attic at January 15, 2009 04:07 PM (k58xs)

The opinion is now available in PDF form at http://www.uscourts.gov/

It's an image so I can't cut and paste, but the important bit starts at the last paragraph of page 21.

The court construed the telecom company's refusal to cooperate as an as-applied challenge and, since the company could not show any actual harm caused by the 2007 FISA amendment (the Protect America Act), denied their petition.

The court gets bonus points for using the word "peradventure."

The key holding: "where the government [that is Congress and the Executive together] has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts."

Posted by: Gabriel Malor at January 15, 2009 04:10 PM (XQywO)

55 JPS --

A couple of differences that need to be noted in that regard:

1. It wasn't just lunatic Kos-kids. Actual Democrat officeholders who simply "posed the question" of "what did the president know and when did he know it" were insinuating that Bush had something to do with the attack.

2. When Bush came into office, he inherited the Gorelick Wall, an unnecessary and idiotic policy that was, without question, created by the Clinton Administration and which, without question kept the new administration from "connecting the dots" in the first 8 months. When Obama takes over, he will have a much, much more robust intelligence gathering and analysis apparatus up and running on all 8 cylinders.

IOW: There will be little justifcation for such lefty tit-for-tat arguments.

Posted by: Guvnah at January 15, 2009 04:22 PM (Rg8DN)

56 Gabriel:

Do you have a more direct link... and In re ________ case name... or some other searchable identifying info?

Posted by: Guvnah at January 15, 2009 04:30 PM (Rg8DN)

57 Nevermind... duh... it's got a link on the front page.

Posted by: Guvnah at January 15, 2009 04:34 PM (Rg8DN)

#51,

If you've ever been able to get a leftist to give you anything resembling a straight answer to that kind of question (valid though it is), you are doing a lot better than I am.

Whenever I pose a question like that I get a spew of BDS.

Posted by: RM at January 15, 2009 04:54 PM (XWJh5)

59 Yeah, I woulda put the direct link...but then minx would have eaten it.

Posted by: Gabriel Malor at January 15, 2009 05:10 PM (XQywO)

60 Interestingly, the Court spends quite a bit of time emphasizing that it is ruling on a challenge to the Protect America Act, and that its analysis only goes to how that act was applied in this case. The Court then turns right around and makes the following broad pronouncements:

";">For these reasons, we hold that a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States."

Note: It does not say that the exception exists when all of those things are done pursuant to Congressional authorization.

";">This holding does not grant the government carte blanche... [the govt action] must comport with the Fourth Amendment's reasonableness requirement... To determine the reasonableness of a particular government action, an inquiring court must consider the totality of the circumstances."

The court then goes on to evaluate the protections provided under this program and finds them sufficient, but again, it does not say that these protections must be put in place by Congress in order for the program to be valid.

It seems to me that this is right. If we are trying to determine whether a core individual right is being violated by a government program or action, it really should make no difference wether the action or program is Congressionally sanctioned or engaged in by the Executive branch without government sanction. Congress is in no better position for authorizing Constitutional violations than the Executive branch acting alone.

It seems to me that this opinion has fairly broad applicability and goes a long way toward vindicating the Administration's pre-2007 surveillance program. At the very least, it would seem to provide support for the notion that the program was not unconstitutional. Of course, that still leaves the question of whether it was illegal under FISA notwithstanding the fact that it wasn't unconstitutional.

Posted by: Guvnah at January 15, 2009 05:15 PM (Rg8DN)

"1. It wasn't just lunatic Kos-kids. Actual Democrat officeholders who simply "posed the question" of "what did the president know and when did he know it" were insinuating that Bush had something to do with the attack."

Oh yes. I remember Hillary waving the front page of some NY newspaper that bore the headline "BUSH KNEW", before the Senate and screeching "BUSH KNEW! BUSH KNEW!" As pusillanimous a bit of Commiecrat playacting as ever took place in Congress. And only the PIAPS could pull it off.

Posted by: Cave Bear at January 15, 2009 06:38 PM (EKMxC)

62 Let's see if we can apply the Court's holding to what we know about the Administration's pre-2007 program.

Did the program require a warrant?

No.

Everything I have read about the pre-2007 program indicates that the surveillance was it was (i) conducted to obtain foreign intelligence; (ii) for national security purposes; and was (iii) directed* against foreign powers or agents of foreign powers; that were (iv) reasonably believed to be located outside the United States.

* Note that a wiretap can be directed at a foreign power but still capture communications with U.S. citizens. This seems to have gotten a lot of people upset for no apparent reason. There is really nothing extraordinary about it whatsoever. As a U.S. citizen you could be called at any time by a person who is under investigation by the authorities and have your communications with that person wiretapped. Whether that wiretap was authorized by a judge or not does nothing to protect your privacy since any judge, in deciding whether to issue the warrant would not be evaluating any evidence to establish probable cause that you had done anything wrong.

Did the program comport with the "reasonableness requirement"?

This is murkier, since I don't know what protections were in place. But I have a bit of a problem with applying such a test to begin with. The Court lists the "safeguards" that were put in place as part of the Protect America Act, and then weighs these against the national imperative.

Safeguards are great, but what safeguards are in place to protect your privacy when a Customs agent -- without a warrant -- rifles through every inch of your luggage when you fly into the country? What safeguards are in place to protect your privacy in any of the dozens of other perfectly legal warrantless searches that Andrew McCarthy highlights here?

Posted by: Guvnah at January 15, 2009 06:46 PM (Rg8DN)

63
Jackson's was just one of five concurring opinions in Youngstown - and signed only by himself. (It was really just the opinion of _one guy_).

Despite the fact that congress is quite fond of the idea, it has never been the position of the majority of the supreme court (or, as far as I know, even any other member of the supreme court) that the president's powers are greater or lesser when acting in accordance with congress. (And, in fact, John Roberts has pretty much that the whole conecpt is really kind of silly)...

Posted by: Dumbledore at January 15, 2009 07:20 PM (hSVgS)

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FISA Court to Rule Wireless Surveillance Was LegalCorrection: Nope, Decision Concerns Structure Created by 2007 Congressional Act, Not Wiretaps on Presidential Authority Alone

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FISA Court to Rule Wireless Surveillance Was Legal
Correction: Nope, Decision Concerns Structure Created by 2007 Congressional Act, Not Wiretaps on Presidential Authority Alone