Redstate

I feel the need to restate that as always, these people are unmoved by facts.

In 1994, President Clinton expanded the use of warrantless searches to entirely domestic situations with no foreign intelligence value whatsoever. In a radio address promoting a crime-fighting bill, Mr. Clinton discussed a new policy to conduct warrantless searches in highly violent public housing projects.

this did not generate howling 'impeach him' cries, choruses of 'dictator' from opposition Senators, and 'he's a tyrant' headlines all across America.

I'm a big Posner fan and agree with essentially everything in this editorial, but Posner -- like so many addressing this issue -- has not attempted to address my concern.

I think that most conservatives (and probably some liberals) that have a problem with the President's actions still WANT these investigations.  My issue (as described in a previous post) is that warrantless searches of American citizens in this context are UNCONSTITUTIONAL.  Regardless of FISA's applicability, the 4th Amendment trumps and in this case, it is being trampled.  

So while I agree with Posner that the defense department should be rushing to fill the intelligence gaps, I don't believe it has any authority to do so in this manner (I find the article II argument laughable, incidentally -- if the war on terror is a "war" for consitutional purposes, we might as well jettison the judicial branch now).  

So to that end, I think Posner's energies would probably be better spent finding a way to tailor the program so that it is legal --- rather than addressing the amorphous civil liberties question that is not even at issue (at least for me).

There is an excellent, easy to understand (even for us non-legal types) exposition of the issue on PowerLine today (On the Legality of the NSA Electronic Intercept Program)

that your interpretation is wrong. The executive possesses vertain unique powers under Article II in his role as Commander-In-Chief in the conduct of war. As a co-equal branch of government the Congress cannot reasonably prohibit the Executive's basic Article II powers though it's own statues (FISA).

i think the point is that a constitutional amendment trumps a statute. Thus, the 4th amendment prohition against warrantless searches would necessarily trump any legislation passed by Congress (FISA, etc.).  

I see what you're saying but what I'm getting at is that FISA is immaterial.  These searches are unconstitutional under the Fourth Amendment, which trumps actions of the President or Congress.

They ought to tailor their program so that they have to get a warrant 30 days (instead of 3) after the fact.  Or something in that vein.  These searches are unconstitutional as is and advocating that the President ignore this point as simply inconvenient is a disservice to the executive and judicial branches.

I spent 85% of my time in the Army monitoring field radio traffic and the rest stuck up in the rafters of V Corps HQ in the I.G. Farben building, tapping telephone lines. That work was always done for civilians - we kept a log, noting times and anything unusual and turned it and the tapes over to them after every shift. You would be shocked at what people talked about in the clear, people who did and should have known better. I think this program was meant less to gather long-term intelligence but rather to catch that one slip that's the difference between life and death, that slip that even trained professionals make when they think no one is listening. I have to believe the President is within his moral and legal authority to make the decisions he made, and I'm glad he did.

Is it your position that any warrantless surveiling of citizens is unconstitutional? What about when they aren't being targeted?

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.

is still there. How do you explain that away. The Fourth Amendment didn't modify Article II.

I'm with you. If the SCOTUS do that, it is the appropriate time to pull the Ol' Hickory. Personally, I think "did he break the law?" is completely the wrong question.

First of all, he acted under the advice and supervision of the Attorney General, the top legal enforcement authority in the land, so who is there to bring a legal charge? I think we can safely say nobody. (No more Independent Councils, right?)

Secondly, if there are no harmed parties to step forward, there is no civil case.

Hence there is no court.

So the legal question is academic and hypothetical and doesn't extend beyond opinion. It can't be settled, except by saying the Constitution and Law gives that judgment to the AG. `It's talking heads (instead of  turtles) all the way down.'

However there is a Constitutional check on abuse of power and that is impeachment which doesn't require an answer to the legal question. It is a matter of the sense and will of the Congress and they will get involved.

So the question that has practical significance is: Is the President's action impeachable?

Set up that up in a scenario and the impeacher looks absurd.

now I see what you're saying.  This really goes to what my lager point is generally (cause I think most people who have no problem with the searches believe it's an Art. II question).

I don't believe this is the conduct of war.  I know that sounds crazy but hear me out.  The war on terror won't end in my lifetime.  It just won't --- the President and Vice President have essentially said as much and they're right.  I could list a million reasons how this "war" is different from the conflicts our framers had in mind when they drafted Art. II but that's sort of besides the point...  

Wartime Powers under article II are EXTREMELY BROAD (think internment of the Japanese broad).

Ultimately, I guess it comes down to the fact that I refuse to give this President or any President these powers forever.  The reason Article II powers are so broad is because they were intended for the duration of conventional wars --- this simply can't be something that lasts my lifetime.  If it lasts forever, then why bother having a consitutional limitations on powers at all (for instance, can the president limit the right to bear arms if he decides it's in the interest of the war on terror -- I certainly hope not!)

So I guess if we disagree on that point, we'll just have to agree to disagree...  

1. The fourth amendment applies as part of the compact between WE THE PEOPLE and the government we created, to limit their power in the context, of domestic law enforcement in which we have made tradeoffs that will result in some guilty going free in exchange for more liberty.

In war, WE THE PEOPLE are one against ANOTHER PEOPLE, and in that context, we do not make tradeoffs. We empower the president to kill those he determines to be the enemy, foreign and domestic before asking questions. Obviously, if he can kill an enemy, he can DO  LESS, ie capture or surveil for intel.

2.  Even if the 4th amendment applies, the word reasonable would excuse searches in order to prevent the enemy from attacking WE THE PEOPLE.

Its not a close call

see links

http://www.chicagotribune.com/news/opinion/chi-0512210142dec21,0,3553632.st
ory?coll=chi-newsopinioncommentary-hed

http://www.aijac.org.au/resources/aijac-media/tl_wfr_120305.htm

http://www.washingtonpost.com/wp-dyn/content/article/2005/12/19/AR200512190
1027.html

http://www.redstate.org/comments/2005/12/19/171428/14/206#206

First, the key word in the 4th is 'reasonable.'

Second, I contend that the 4th is primarily directed at protecting your rights at trial. The Founders were coming out of a revolution to break away from a King whose governors and administrators had a nasty habit of making arbitrary arrests and trials, and seizing property 'in the name of the Crown.' I think they were primarlily interested in making sure that we didn't create a new 'imperial' government that did the same things 'in the name of the Republic.'

Any information (evidence) to be used at trial in contravention of the 4th, i.e. no warrant, is clearly inadmissable. But law enforcement gathers information all the time without a warrant, information that will never become evidence at trial. In addition, the courts recongnize the validity of numerous kinds of 'warrantless' searches and seizures of evidence.

Third, the 4th does not replace Article II's grant of presidential powers in the conduct of war in defense of the country and the Constitiution.

just because the bad guys know we can do such things doesn't necessarily mean they are going to 'remember' that every minute of every day.

Sorry, didn't construct the negative properly for 'reasonable'

When police officers conduct a warrantless search, does not a judge have the opportunity to throw out the gathered evidence? If the judge does throw out said evidence, are the police then brought up on charges and sent to jail for their conduct?

I believe there is a difference between conducting surveillance for criminal prosecution and conducting surveillance against U.S. enemies in order to protect our country.

one is for prosecution at trial, the other is for prosecution at war. Totally different concepts.

Posner's op-ed also offers a devastating critique for those who wish to assert that the FISA framework is still sufficient in the age of cell phones and PDAs

Maybe so, but I'm having trouble seeing how that is relevant.  FISA is only an issue if it covers Bush's actions, and in that case, actions outside of FISA are illegal.

However, if the argument is that Bush has these powers under Article II of the Constitution, than any critique of FISA is plain irrelevant.

I'd like to see those charges "We are bringing these impeachment charges against the President for the high crime or misdemeanor of doing his job prosecuting a war against our enemies and protecting the people and the Constitution from foreign enemies."

And he has also asked what seems to me be a key question if we are trying to answer whether the President broke the law.

Are the police ever brought up on charges for conducting a warrantless search? Do our laws say that is an illegal act, chargeable in court and punishable?

Is that given the particulars of this program, FISA does not even apply as a controlling legal authority.

In the event that it does, it has a "other statute" provision, that is satisfied by the AUMF.

is the President granted pleniary powers as Commander-in-Chief. The sole reference to Commander-in-Chief simply makes him supreme commander of the armed forces.

Article II, Section 2, Clause 1 - 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

Nowhere in Article II, here, is the President granted the power to suspend other sections of the Constitution. That it has happened in the past does not make it constitutional.

Gen. Hayden: Mr. President, we've got intel. that requires us to monitor international communications to and from sites inside the US. It may help us prevent another attack. If we have to obtain warrants through FISA we might miss some really critical information, uhh, you know, that might help us save lives, like 9/11.

Pres. Bush: Do I have legal authority to order you to do this without a warrant then?

AG and NSA lawyers: Yes, in our opinion, we find constitutional and statutory grounds for doing so.

President Bush: I took an oath to defend Americans. Set up a limited program with safeguards, regular reviews and keep leaders in Congress informed.

Well, what would you want your President to say? Maybe this...

President Feingold with VP Levin: Well guys, I just don't think we can do that. FISA doesn't specifically allow it and so I'd be breaking the law and violating civil liberties. Make sure you get a FISA warrant for everything. If that compromises your ability to save us from an attack... what can I say? It's the price we pay for the freedoms we hold so dear. We are a nation of laws and those laws require us not to acquire intelligence without a court approved warrant.

There may be other variations on what the President could say but the scenario is based on the description provided by Bush, Hayden, Gonzales, Rice, Hoekstra, Roberts, Rockefeller and any other of the principles have given us.

Personally, I agree with the President's judgment and would be dissatisfied, perhaps to the level of impeachment, with any other that demonstrated a willingness to sacrifice the intelligence in the above circumstances.

pursuant to good faith policies.

But a cop could be charged with trespass, burglary, violation of civil rights, etc if acting outside the scope of his duties.

Another thing, is that most evidence pursuant to warrantless searches come in anyway if cop has a good faith belief his actions are legal.

Ok, this is getting somewhere -- so this is only unconstitutional if the evidence is used at trial.

I would argue that not trying suspected terrorists HURTS the war on terror.  While this may help prevent an isolated strike, I think there is some value in being able to arrest and prosecute suspected terrorists (as you probably know -- any evidence gathered from information obtained illegally is likewise inadmissible).  I'd rather require that the President get a warrant so we can use this info to prosecute terrorists (and potentially pressure them into revealing additional information).  A pile of inadmissible evidence doesn't provide much leverage in negotations...

If getting a warrant was difficult, I might view this matter otherwise...

But in answer to both questions: I can't see how.

The courts have carved out a number of circumstances where warrantless searches are admissible so clearly a warrantless search is not prime facie a crime.

I honestly don't know of any times a police officer has been charged with that specifically but not being a lawyer I don't know, someone might be able to dig up a few. As far as I know the 'normal' response is to toss out the 'evidence'

If the police are not charged and tried, or at least judicially sanctioned, specifically for searching without a warrant, I think this reinforces my view about the intent of the 4th Amendment being to protect your rights at trial, not some blanket protection of privacy for the sake of privacy.

But as I said IANAL and YMMV.

That's what I suspected with regard to sanctions specifically for warrantless searches. The other matters, trespass, etc., I think would be only tangentially related to a warrantless search anyway.

I was not aware that the 'good faith clause' would get most such evidence in anyway. Thanks

happened in the past and the Congress hasn't challenged it, either concurrently or after the fact, seems to indicate that your interpretation may not be universally held.

it just clues us in to who we should be looking at, then we can gather evidence to be used in court (military or otherwise).

As in "I'd really like to see the Dems bring those charges" :-)

Is it still possible to ride someone out of town on a rail?

Why not use the intercept as a reason to take them into military custody and ship them off to Guantanamo and later try them before a military tribunal?

I don't see how the lack of a civil trial has much of an negative impact here.

meaning of the terms executive power and commander in cheif as understood by the founders in the 18th century and as they have been exercised until this day. Also just as important is to understand the implications of what it means when we are at war. War means that we kill the enemy without asking questions. The 911 resolution echos the inherent power of a COC to wage war against enemies he determines are such. HE, the president decides who to kill. The founders put this power in one man for a reason. Speed and accountability.

The power to kill anyone!!! he decides is the enemy implies that he can do LESS than kill. He can capture and gather intel. Its not a close call. Links below

But I can also get some links defining executive power when the constitution was written if you want.

http://www.redstate.org/comments/2005/12/22/124426/39/16#16

Answer my question. I asked if it is ever permissable that a citizen is monitored without having a warrant in place.

But I can't buy the idea that because it will not end in our lifetimes makes it any less a 'war.' I think that that argument might apply to the "Cold War" to some extent as I view it as a conceptual "war" that encompasses a number of things largely other than active combat. And those combat incidents are generally proxy events and are each fairly identifiable by a beginning and an end (of sorts.)

But this is different. This is largely 'active combat' even if not in the traditional sense of armies confronting each other on the battlefield. For example, trying to dry up terrorist funds is part of this war but is merely ancillary to the true war; if those funds are not dried up the bad guys will use them to pay for physical attacks on us. In contrast we suspect that North Korea has an active counterfeiting program against our currency. But there is no indication that this is prelude to or part of a plan of physical combat against Americans.

So I think that there is considerable difference between this 'war' and things like the Cold War which were largely ideological combat laced with a degree of mostly proxy physical combat. This one is largely sporadic physical combat wrapped up in a myriad of other things that all eventually find their roots driving the physical combat.

I don't see that the duration of the 'war' is of any consequence in deciding whether broad presidential power applies. This war is not characterized by the traditional or conventional traits of war. In general there is no state-actor at the core, although there are plenty providing aid and comfort. The enemy is a loose band or bands of ideologically driven people whose goal is to change our way of life through violence. They don't want to clean out my bank account or take my car; they ultimately want me and my children to adopt their religion, their view of what constitutes 'freedom', their attitudes about life. And if we won't then they are perfectly content to kill us.

It is worth bearing in mind that other 'real wars' outlived generations of participants, the Hundred Years War comes to mind :-)

Either way, the feasibility of FISA is not a relevant issue.

Seems like a straightforward and simple argument to knock down anyone accusing the Pres. of 'breaking the law' by conducting warrantless surveillance. Regardless of how one interprets these constitutional issues, one still must clear the hurdle of "good faith" violation, which defies both common sense and the AGAG.

In light of that, it is worth bearing in mind that the legal discussion is really only relevant in the context of discussing policy questions. This perspective shift turns down the rants and corrects the way others and the media are framing the dialogue in terms of illegality (instead of policy).

Maybe this comment is irrelvant now, since it appears most of the pot-shoters have left the dialogue.

there don't seem to be too many moonbats left. We're approaching sunset on the East coast maybe that has something to do with it.

on the grounds that you cite -- 4th Amendment prohibition -- then I'd like to know how a a posteriori warrant issued after the search justifies the search that would have been illegal.  If what you're saying is that while the Constitution has an absolute ban on search/eavesdropping on American citizens, but that Congress has the power to justify it with a warrant issued after the fact, then in the name of empowering the hunt for terrorists, we should be creating a 30-year safe harbor provision for FISA warrants.

If a warrantless search is unconstitutional in all cases, then I find it hard to swallow that a warrant issued after the fact can make that search constitutional.

If, on the other hand, a warrantless search is constitutional under certain circumstances -- for example, the 'plain sight' exception, the 'in course of arrest' exception, and so on -- then the question that needs to be asked is whether the circumstances here justify a warrantless search or not.

And finally, there is the open question of whether the 4th Amendment applies at all in non-penal, non-prosecutorial situations.  If an intercept isn't going to be used as evidence in a criminal proceeding, then there's an argument to be made that the 4th simply doesn't apply at all.

-TS

I could care less if we ever try them, and it's tough (and probably unfair) to try a dead man.

And as for 'leverage in negotiations...' What negotiations? I, for one, am not interested in negotiating with terrorists.

This is what I was trying to get at with my question. I think the answer is a clear no.

There are many times an American may be monitored one way or another without a warrant. Say if you visit the Chinese embassy for example. Or call a Russian diplomat. Or call an Al Qaida front business. Or call your brother who changed his name to Mohammed and spend a couple years in Pakistan "studying."

In all these cases you might be monitored but that doesn't mean they need a warrant. If they did there are really no circumstances that we could ever collect any intellegence without a warrant because you don't know when an American might become involved.

Yes,

Happens all the time. Here are just a few examples: Walk into most stores. Go to Vegas and gamble. Some cities use cameras to record drivers as they are going through intersections. Police use radar guns.

These can all be used in a court of law. Was there a warrant issued against the person being monitored?

not how it works.  If what initially clued you in was an inadmissible search, anything you get from that lead subsequently is inadmissible.

It even has a cool name:  the fruit of the poisonous tree doctrine...

There are lots of exceptions for warrantless search.  Courts have enumerated these over time ("hot pursuit" for instance --- if you chase a suspect into his home, you can search it w/out a warrant).

My problem is that the Supreme Court has not enumerated an exception to the warrant requirement for issues of national security.

I'm not saying a warrantless search is unconstitutional (see post above).  There are lots of times you can search w/out a warrant.

This just isn't one of them.  I'm not saying a warrant after the fact necessarily solves all the problems... all I'm saying is that this kind of requirement would at least demonstrate an EFFORT to comply with the constitution.

That's all I'm asking.  On issues of national security, I think you err on the side of security --- I just want the administration to make SOME CASE for the constitutionality of this argument other than Article II.

As I've already mentioned, if you think this falls under Article II, we'll probably never agree so we should just let it lie.

I don't see that the duration of the 'war' is of any consequence in deciding whether broad presidential power applies.

I'm sure the founding fathers were prepared for wars to last quite a number of years, but I think the fear here is that the War on Terror will never end, and so the expanded presidential powers will be permanent.

And if the founding fathers meant for them to be permanent, why are they conditional on there being a war?

I read the several links you referred me to that were still available. Most were were merely opinion pieces. Alexander Hamilton is generally regarded as an advocate of a strong executive. Hamilton's Federalist Papers are the preeminent commentary to the Constitution. I found nothing in the Federalist Papers that approaches your opinion.

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature. - Alexander Hamilton, Federalist Paper #69

Something may be convenient even necessary, it may be a long standing habit, and it may be unchallenged but that does not make it constitutional. An absurd example, every Monday I steal a candy bar from my corner 7-11. I've done it for thirty years and my father did it for forty years before me. (I really don't do this.) It's easy, it is a long standing tradition, I'm hungry, and no one has ever complained. Therefore, for me stealing candy on Mondays must be legal. In logic this is called relativist fallacy.

this is unlike any war with which the Founders were familiar. Wars did last for long periods, the Revolution certainly did, so I doubt that they had time constraints in mind. Clearly most of the wars with which they had contemporary or historical familiarity had fairly defined ending however, unlike the probable 'ending' of this one.

But I fail to see why the duration has anything to do with it; the President posesses certain powers that are unique to making war, regardless of the duration. It isn't a matter of them being permanent or temporary, it is a matter of them being conditioned on there being a war; 6 weeks or 25 years does not seem to make any difference in the grant of war-related powers.

The 60 year ignorance of how to win wars combined with the loser vietnam syndrome makes clear why advanced civilizations fall to barbarians.

Bush should have tried a few terrorists down at Gitmo the first week of the war and executed them at dawn the next day and probably should have gunned Padilla down at O'Hare or at a home where we wiretapped first! and driven all this home. And then charge a leaker with treason and exile a reporter to the enemy they aid and abet in the Afhan-Paki mtn valley

ala Lincoln and FDR

http://www.aijac.org.au/resources/aijac-media/tl_wfr_120305.htm

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/quirin.html

that applies in a court of law, not on the battlefield --- even if that battlefield is at 44th Street and Lexington Ave.

With all due respect, "don't get stuck on stupid"; this is not law enforcement, this is not arresting someone for knocking over the local Seven-11, this is war. Arrest and prosecution are far, far less a consideration than elimination and prevention; at least I hope they are.

I'd be very surprised if even a tiny fraction of the NSA activity ever resulted in a continuing criminal investigation leading to trial.

could matter more than giving the executive permenant Article II authority?

Not only is it beyond the realm of what the framer's might have considered, it completely skews the balance of power between the three branches.

the executive has permanent authority stemming from Article II. The authority applies any and all times the country is at war. It does not skew the balance of power in any way.

This whole line of reasoning stems from a belief that we are not at war, that we're chasing a gigantic international carjacking/chop shop ring. And, thankfully, many of us don't see it as the equivilent of armed robbery or jaywalking.

But my whole argument is premised on the fact that getting a post facto warrant (in a secret FISA-esque court) wouldn't hinder the NSA's effectiveness.

W/ my approach you get everything that you want PLUS you have the authority of law.

of the President to gather foreign intel without a warrant under art II on several occasions. And if you read several of the links in my other posts you will see the cites and quotes.

I also have links posted concerning Lincoln, FDR, Nixon, Carter and Clintons warrantless searches OF HOMES, and wiretaps, none of which were overturned by courts. Specifically, Clinton searched Aldrich Ames home and then tried and convicted him.

But the below link is better than mine!

http://powerlineblog.com/archives/012631.php

glad to help

you ask great questions

I'm in the process of gathering info re the founders meaning of execuive power and commander in cheif powers in war and otherwise. Ive written several scholarly legal and newspaper articles on same.

more later

doesn't hold if the store owner knows you and your father have been doing this for 70 years and has never in all that time taken action to stop, inhibit, curtail or prevent it in any way. It may not make it right, it may not make it legal but it would make if d*mn difficult to prosecute. In logic this argument is called 'the just plain silly fallacy.'

The Congress and the Courts have known this has happened and continues to happen and have never taken effective steps to stop, inhibit, cutail or prevent it. Where is the argument for them to do so now? They don't like George Bush having this authority? That isn't up to them, the electorate decided that issue.

For all the time and resources you are spend jumping through those hoops. I would rather they spend time on actually collecting intellegence rather than asking for permission to. Whether it is after the fact or not it is still too much red tape.

We collect intellgence there is a chance American citizens will be involved. You don't know what you are going to find until you find it.

the 'unconstitutional' argument is to hold, does getting a warrant after an unconstitutional act make the act less unconstitutional?

That this isn't one of them? I'm pretty sure that the courts have ruled on this issue favorably in the past. This is intellegence gathering during wartime. If that isn't an exception I don't know what is.

http://powerlineblog.com/archives/012631.php

Presidents have the power and have conducted warrantless searches of foreign spies and their collaborators no matter whether we are at war or not. He can gather intel pursuant to his duty  to defend the nation.

I know we were not at war when we searched Aldrich Ames when Clinton ordered his house searched.

http://powerlineblog.com/archives/012631.php

http://powerlineblog.com/archives/012631.php

I saw this and posted it earlier (#5) but foolishly didn't include the link. I thought John Hinderaker provided an excellent summarization, easily understood by even us non-lawyer types.

as congress tries to make sure terrorists have clean korans and are addressed as sir. Everytime the NYT "breaks a story, we have to have a damn investigation.

http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf

From the National Review by way of InstaPundit

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

These are american citizens, not foreign operatives.  Foreign operatives wouldn't be protected by the Fourth Amendment anyway...

There have been several suggestions that 72 hours isn't nearly enough, even if there's enough information about the possible contact to make an application for a FISA warrant at all.

If the clock expires, the law requires the ongoing intel activity to end, no exceptions, and then you're back at square one.

It might have been worthwhile to submit warrant applications anyway to get retroactive approval from the FISA court even well after their deadline, just to pay some homage to the process ... but that seems politically fraught, since it gives the impression that the administration is simply inept or careless at following the applicable law, and less than confident in its legal justification for bypassing the warrants.

Not by much but it helps.  Having some sort of hearing operates as a check on the executive branch (even if it is a cosmetic one).  I'd argue that this small step is all you'd need to justify this as constitutional (or at least would allow you to make a colorable argument).  

This is where we disagree.  I don't believe this is wartime.

I agree this is a "war" on terror but I am not prepared to treat this as a conventional war (the kind that the framers had in mind when drafting article II).  This war will last forever.  I'm 100% behind fighting it for the long haul -- I just don't believe the President has wartime authority in perpetutity.

If you want some idea about what's permissible under Article II, check out the Korematsu v. United States.  It's pretty unbelievable.  

As a conservative in the Reagan-esque small government sense, the concept of perpetual wartime powers is untenable to me.

You're not prepared to treat this as a conventional war, okay -- I can respect that.

But that distinction, whether we are in a real war or a symbolic war, is non-essential to the question at hand: the power of the Presidency.

Either the President (as the head of the entire Executive Branch of government) has the inherent power to conduct foreign intelligence or he does not.  Nations spy on each other all the time, whether in times of war or not, whether enemies or not.  One of our worst intelligence debacles happened when Israel, a staunch ally of the U.S., convinced a Naval Intelligence officer to betray his country.  We were not in a war at that time, and certainly not with Israel.

Does the President have the inherent authority to monitor and wiretap known or suspected Israeli intelligence agents working in the D.C. area?  May he continue to wiretap if said agent contact a U.S. Naval Intelligence officer, or must he cease immediately because of the 4th Amendment prohibition?

If he has this power in peacetime, then he has it in wartime.  One might argue that he has it even more in wartime.  One might further argue that he has even more power should Congress authorize it.  But neither the absence of Congressional authorization nor the absence of an acknowledged state of war diminishes his inherent power to conduct counterintelligence.

You can deny this if and only if you deny that the President has the inherent power to conduct counterintelligence the minute that such surveillance and wiretapping and whatever touches an American citizen.  I for one think that such a position is untenable, far beyond what the framers of the Constitution would have thought the 4th Amendment reached, and completely unrealistic to boot.  Counterintelligence doesn't stop the minute it touches an American; might as well not do it at all then.  

So I'm not talking about perpetual wartime power; I agree that such a thing is odious to limited government conservatives.  I am talking about the inherent power of the Executive to combat foreign powers who may pose a threat to us, whether in wartime or peacetime; said power including the power to conduct effective counterintelligence.

-TS

I don't see that an ex post facto warrant makes it 'better' or more 'Constitutional' or whatever --- but then again I'm not given to window dressing and cosmetics substitutions for right and wrong. I suppose because I don't see that it's necessary in these cases as presently understood for it to be made pseudo-Constitutional, it already is.

But we are fortunate in that, as far as I know, neither of us has to actually make these decision. That's what makes horse races.

with a foreign enemy or on behalf of same with other citizens or are involved in warlike/terrorist threats, from intel searches for the purpose of preventing sabotage or defending Americans from attack.

Remember, all of the confederate spies were americans.

defend against all enemies, foreign and domestic

This is basic. Its just that we are 60 years removed from the last major war. We are war ignorant as a people.

It does not skew the balance of power in any way.

If you accept that, and you also accept the fact that the US will be forever fighting the war on terror, then the expanded powers of the President could be added directly to the Constitution through an amendment.

And it would be exactly the same as it is now, right?

(Except people wouldn't be able to complain any more about the President having his temporary power forever.)

Whether you think this is a war or not doesn't really matter. This stuff has been done all the time outside of war time (such as during the cold war). You could conduct NO intel at all if your requirements are that you need a warrant every time there might be a us citizen involved.

You dont even need Article II to do this. You only need the word unreasonable in Amendment IV.

Byron York had a listing of about 45 different ways Warrantless searches are conducted under the law and Constitution.

For example, Mass Sobriety Checkpoints.

Traffic Stops. Stopping a suspicous person. Etc. etc.

What is clear that a criminal prosecution cannot proceed without any warrants or due process; but that's not what's being argued here. What's being argued is that the President DOES have executive authority to listen in on people talking to Al Qaeda folks overseas.

If Warrants are required for foreign intelligence collection then we might as well surrender to bin Laden now. The constitution is not a suicide pact and neither Jefferson, nor Adams, or Madison ever extended constitutional privileges to the Barbary Coast pirates.

I do not see that there is any need for Constitutional amendments or any other legal or legislative action.

What is called for is for the left to grow up and deal with the world as it is not as they want it to be (President always a Democrat, both houses of Congress with clear, unbeatable Democrat majorities, Federal judiciary 100% activist, etc.) This NSA thing is an issue because BushHitler is President.

The ABCPCLA (American Barbary Coast Pirate Civil Liberty Association) would question this assertion.

That be o' fine organization thar.

So I was reading the DoJ's defense of the NSA program, and it cited the Authorization for the Use of Military Force after 9/11 as its authorization and overriding statute of FISA's requirement of a court to issue warrants for the U.S. government to conduct wiretaps.

http://www.nationalreview.com/pdf/12%2022%2005%20NSA%20letter.pdf

But if this is the case, then, that Congress's language saying that the President was to use all "necessary and appropriate

force" against terrorists, then why do we even need the Patriot Act? Does not that language, then, authorize the President to essentially do anything he sees fit to prevent terror attacks, Patriot Act or not?

Anyone else have any thoughts on this?

in the absence of a congressional resolution, as the president is charged with defending the nation against enemies waging war against us at all times, and so can gather intel whenever necessary. We were not at war with Russia in 1995 when Clinton ordered a warrantless search of Aldrich Ames house.

But, Congress also shares power given their exclusive control of the budget. And politically, they are jealous of presidential power. Moreover, the Justice dept is much larger than the NSA and is equipped to file legal charges as well so it makes economic and legal sense for them to do the high volume work and thereby leave the NSA resources freed up for the exigent cases.

Additionally, and probably most importantly, both the president and the congress dont want to unduly alarm the public about their privacy rights.

The president knows that he can do whatever he needs to do no matter what anyway. But we are  a war ignorant people. I mean its been 60 yrs since most of this was in play to such an extent albeit Presidents have used their powers in the US against spies in the cold war.

Plus its been since the Civil war when there was full scale war on our soil. So, while the Presidents powers never diminish, the propriety of their use in volume and scope have to be weighed politically.

Plus, there was a leak that made this discussion happen when it should not have. The patriot act also served to distract the terrorists and lull them into thinking that it was the exclusive tool.

Presidents dont like to state the fact that they can do anything unless the congress impeaches him, but that is essentially the fact.

European wars of their time were interminable. They were surely familiar with the Thirty Years War, the Austrian Succession, etc etc.

More analogous to the current situation was the suppression of piracy which spanned most of a century.

you should research the concept of "adverse possession".

I think there are some similarities to the suppression of piracy and especially to the campaign against the Barbary Pirates.

I think most people would agree that the president has the authority to take steps necessary to prevent an imminent attack.  I think that for me, your post raises concerns about a slippery slope.  Without any kind of check on the president's actions (with respect to review by other branches of government, in non-emergency situations), what is to stop him from infringing on ordinary Americans' civil liberties and privacy?  I'm uncomfortable with any government branch (especially Congress) trying to infiltrate on my private dealings.  And the thought of placing this unfettered authority in the hands of one man is truly abhorrent.  Maybe if our intelligence was foolproof and we lived in a perfect world would it make sense to allow the president to do whatever he thinks is best.  

But in a world where the DOD classifies a LGBT "kiss-in" as a potential terrorist threat and the NSA acknowledges that oh yeah, it turns out that some of the poeple we were tapping were both in the US, well, then that's where I start to grow concerned about granting this unchecked authority.  If we take the idea of limited government and civil liberties seriously, then we should want to make doubly-sure that we are in fact taking action for the right reasons.  And it seems that forcing the President to show probable cause (which I assume he would have, if they are tapping people in the first place, otherwise, what are they basing their decisions on?), is not such a burden on the president's ability to act in non-imminent emergencies.  I guess I'm just not convinced that the war on terror involves such imminent situations all the time and that the president should be able to act as if each wiretapping would prevent some imminent attack.  

That doesn't make sense

What part?  It sounds like we said almost the same thing.

Again, it's not that people are afraid because they don't know when the war on terror will end; that's just normal war.  They're afraid because they know the war on terror is never going to end.

So when the President says, "We need this expanded power because we're at war," people like me are afraid because we hear him for all intents and purposes saying, "We need this expanded power forever."  And people like me think, "Whoa there, sport.  We have a system in this country, and you gotta respect that before you go around changing the balance of governmental powers forever."  

More analogous to the current situation was the suppression of piracy which spanned most of a century.

Agreed.  And piracy continues to this day.

of the slippery slope, and granting that your concerns about possible growth of an unchecked power are valid, I still have to point to the essence of the brouhaha: Power.

If the partisan attack on the President's NSA program were about the propriety of such a program from a policy or moral or whatever perspective, that would be one thing.  But the attack has claimed that the President is breaking the law and that claim is on its way to becoming a Known Fact.

The President most clearly has the POWER to do these practices.  He quite likely has the POWER to intercept communications between two American citizens on US soil in the name of persecuting a war.  Whether he ought to exercise that power or not is a different question altogether.

If those attacking the President want to shift grounds altogether to: "Well, yes, he acted entirely within his authority, but he shouldn't have" then we have a discussion, and perhaps one worth having.  If, on the other hand, the concern is really about the extent and breadth of President's warmaking powers, then I think someone somewhere ought to introduce a Constitutional Amendment.

-TS