Wiretaps affect a known person, place or thing. Data mining means everything is scanned for relevance. We may very well need different legal protections against Federal data mining. Legally, it may be different enough from wiretapping to exempt it from FISA.

However, the appeals court is clearly acknowledging the decisions of other courts finding that the president has the  inherent constitutional authority to conduct warrantless foreign intelligence surveillance.” While that issue is not central to the issue before the appeals court, nor is it obviously decided upon by the appeals court, the appeals court is just as obviously not challenging the statement and “assuming it to be so.”

As I am sure you know, the issue of the president’s inherent authority does not need to be before the appeals court for it to merely state an opinion as to the findings of the other courts in the history it cites. Stating an opinion does not mean that the court is deciding anything. Moreover, that the highest court within the FISA framework at worst, “assumes” that the president may authorize warrantles searches, is quite telling.

If you want to argue semantics in that assuming something to be so does not mean it is being recognized to be so, knock yourself out.

You earlier claimed that the “… issue was whether or not the results of those searches (warrantless searches authorized by the president), based on that inherent authority and with or without FISA, rose to the level of constitutional reasonableness required as to be admissible in a criminal prosecution.” Again, not true. The court was deciding if the orders issued by a FISA court under the FISA statute comported with the Consitution. That’s a completely different issue than whether warrantless searches are authorized under presidential authority alone.

When the court says it “assumes” the president has such powers, that has import. In appellate practice, it means that the court isn’t challanging, questioning or deciding the issue on which the assumption is based. It is not questioning the assumption. nor is affirming its import. It is flat out wrong to suggest that it is a “recognition” of the authority of the president. Further, as you may or may not know, a court CANNOT decide issues not before it and the scope of any presidential power to issue warrantless searches outside the FISA issue presented here was not presented before this court. Even if this court were to attempt to issue such a broad order or recognition of a concept set forth in Truong and it’s progeny, a line of cases the court characterized as instable, it would not have any legal effect as again, it was not an issue before the court. To claim that the court under all the circumstances the court was “recogizing” such authority is clearly erroneous and seriously misstates what the case stood for.

The court here held that FISA  orders were not  warrants (the government had, in fact, obtained a FISA warrant/order in the case at issue so contrary to your assertion, the case didn’t deal with the extent of presidential authority to conduct warrantless searches). However, since FISA orders are not warrants the court did look to see if the FISA statutes and authority granted under those statutes were constitutionally reasonable, much as it would in a warrantless search case. The court stated:  & assuming arguendo that FISA orders are not Fourth Amendment warrants, the question becomes, are the searches (conducted with FISA orders) constitutionally reasonable. And in judging reasonableness, the instability of the Truong line is a relevant consideration. It concluded with this statement,  Even without taking into account the President s inherent constitutional authority to conduct warrantless foreign intelligence surveillance (demonstrating once again that that particular issue was irrelevant to its decision), we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.

It s simply wrong to say that the Court here is saying that the President has the authority to conduct the type of intrusions that President Bush has admitted to making. It was not an issue before them and the language used by the Court demonstrates they were making their decision under the assumption that the President had such powers. In other words, whether the President did or did not have such authority didn t affect or influence its decision. It may be a fine point, but it is important to a fair reading of the case.

I did not say that the president’s “inherent constitutional authority to conduct warrantless foreign intelligence surveillance” was central to the appeals court’s decision. Again, their issue involved the traditional line between surveillance for intelligence-gathering purposes and surveillance for criminal prosecution purposes and whether or not the lower FISA court unduly restricted the FBI’s ability to utilize evidence gathered pursuant to FISA.

To say that the appels court somehow did not acknolwedge the president’s “inherent authority” when it states it flat out at least twice, is simply incorrect.

“[T]here are such things as roving wiretaps. Now, by the way, any time you hear the United States government talking about wiretap, it requires — a wiretap requires a court order. Nothing has changed, by the way. When we’re talking about chasing down terrorists, we’re talking about getting a court order before we do so. It’s important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.”

Gutless liar.

There is NO reason why a president should continue to do so secretly for three years without even attempting to bring his actions under the purview of normal checks and balances (for instance, by encouraging congress to enact changes in the FISA act).

…unless that president is a tyrant at heart.

-HE defines when we are in a state of war
-HE defines who and who is not a terrorist
-HE decides who it is appropriate to surveill
-NO independent oversight from congress or the courts

That’s scary, and I DON’T thnk many of you wingnuts would be happy if president HIllary Clinton were wielding this untrammeled authority to ignore the IVth amendment. I wouldn’t be either.

The appeals court was essentially discussing the barrier between surveillance for foreign intelligence gathering and surveillance for criminal prosecutorial purposes as the lower FISA court had put restrictions on the FBI’s ability to use evidence gathered pursuant to FISA in criminal prosecutions. The court is saying that the president has the inherent authority to conduct warrantless searches for the purpose of gathering foreign inteliigence. It does not question that authority, and neither did the Truong court. This issue was whether or not the results of those searches, based on that inherent authority and with or without FISA, rose to the level of constitutional reasonableness required as to be admissible in a criminal prosecution.

Indeed, the appeals court found that it did, based on decisions of the Supreme Court in which examples of warrantless searches in specific circumstances (i.e., DWI stops) were held to be permissible.

Try again.

If terrorists don’t assume their phone and electronic communications are monitored, they are stupid and incompetent. Remember, a court already existed to grant these wiretaps, and it was widely known it existed.

Improper usage of a secret program will come to light, without oversight? Give me a break. I am one of those people that believe that the constitution was written to help protect the citizens of this country from its government. And relying on someone to leak credible and verifiable information from top secret programs not monitored by our elected representatives and independent judiciary does not fit in with this view. The potential for abuse is built in to the way Bush undertook this endeavor, and that is my overriding problem with it. Next is that he undertook the endeavor in a way to deliberately circumvent congressional and judicial participation, oversight, debate and authority.

“Gee, isn t going from a liklihood of guilt to conviction and condemnation without a trial the mark of a  fascist ?”

Gosh, did I say do all this without a trial? I don’t think so. Condemnation without a trial happens to be a mark of this administration.

“And you really drop out reality when you say  This is a gross abuse of power, a violation of federal law”

Federal law states that wiretaps require warrants. Wiretaps without those warrants violate federal law. Duh. Welcome back to reality.

Right now MSNBC is polling (albeit an unscientific internet poll) around 87% believing that impeachment is appropriate in these circumstances.

As Republican corruption becomes more apparent, you may see some changes in voting patterns. Not all people are dipsticks…

” Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense. The danger is that surveillance will not be used solely for that narrow and extraordinary purpose.”

And that is the rub. When enacted in secrecy, without oversight by the independent judiciary, and without moving for statutory expansion in congress, what we have is an unchecked power grab. How do we know such programs won’t be turned against political opponents? We don’t, we have to rely on the president’s word. And how good is that when he has to rely on the word of his personally appointed underlings. Even then, do you trust the next unknown president to have this power and the next?

Why did the president keep this program secret for 3 years? Because he knew it would create a shit storm and he would be forced to stop it by congress, or that limits and oversight would be placed upon the program if he could convince them it was necessary.

I don’t pretend to be a legal expert. I don’t know or want to know the fine points of laws concerning this. I assume that congress will move to place restrictions and oversight on any such programs in the future, now that they are aware. My problem, and I think it amounts to an impeachable offense, is that the president deliberately enacted the program in a way to circumvent congressional and judicial debate and authority. In other words, the President does not interpret the law, he enforces it, if a situation arises where the president deems it necessary to move into new areas, he has a constitutional duty to bring it before the court for legal interpretation and congress for legislative interpretation in a timely fashion, and particularly not to hide the activities from our judges and elected representatives because he believes they will not allow him to undertake these activities.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that  All the & courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence & We take for granted that the president does have that authority.

There is a legal history that interprets the President’s inherent power to include warrantless searches for foreign intelligence-gathering purposes. Every president does not have to repeatedly return to the courts to ask “What is my authority”?

Actually, the quote doesn t begin with the word  all ; it begins  The Truong court, as did all the other courts&  The Truong case was decided in 1978  the same year FISA was passed  and did not deal with the FISA law. As the court noted right before the excerpt,  Truong dealt with a pre-FISA surveillance& it had no occasion to consider the application of the statute&  The Truong case dealt with the President s power in the absence of a congressional statute.

This is critically important because FISA specifically prohibits the warrantless domestic searches that the President authorized. As Chief Justice Roberts explained in his recent confirmation hearings, referrencing the landmark Supreme Court case Youngstown Sheet,  where the president is acting contrary to congressional authority& the president s authority is at its lowest ebb.

The article also conveniently omits the two sentences after the excerpt:

It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. The question before us is the reverse&

All the court is saying here is that whether FISA imposes limits on the President s authority is not an issue in this case. It was an issue in the Troung case but, as the court explains,  [T]he question before us is the reverse.

Try again.