Ace's Warehouse

Why The NSA Terrorist Surveillance Program is Legal

2006-03-30T21:08:00.000-05:00

Let's start with some incontrovertible facts:

"the circumstances which may affect the public safety are [not] reducible within certain determinate limits, . . . it must be admitted, as a necessary consequence that there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficiency."
-Alexander Hamilton, The Federalist No. 23

"This foreign affairs power is exclusive: it is "the very delicate, plenary and exclusive power of the President as sole organ of the federal government in the field of international relations - a power which does not require as a basis for its exercise an act of Congress."
United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).

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[T]he Constitution vests the President with responsibility over all matters within the executive branch that bear on national defense and foreign affairs, including, where necessary, the collection and dissemination of national security information. Because "[i]t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation," Haig, 453 U.S. at 307 (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964))

The Executive is the sole actor conducting the management of foreign affairs and providing for our nation's defense. The history and text of the constitution establish this.

So, let us turn to some appropriate precedent's in this area.
Four federal appellate cases addressed the issue all of which uniformly concluded:

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

--United States v. Duggan, 743 F.2d 59 (2nd Cir. 1984).

The courts all found the President's power in this area could not be constrained by the 4th Amendment. It is also worth noting that prior to the enactment of FISA, Congress also clearly believed the President had this power to protect the United States from foreign threats. The Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. Section 2510 et seq as orginally written said:

“[N]othing” in federal statutory law shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities. Nor shall anything … be deemed to limit the constitutional power of the President to take such measures as he deems necessary to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government.

Now, these citations are before the enactment of FISA and critics of the President have pointed this out.

So we'll turn to Sealed Case No 02-001 a November 2002 ruling which stated in a dicta "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." This added yet more (final?) uniformity to an issue that has been litigated at the federal level. Further, after this decision was rendered, the ACLU asked the US Supreme Court to review Sealed Case No 02-001, but the court declined.

The Congress in 1978 is apparently the only body to ever find that the President needs to receive ex ante judicial approval in the form of a warrant to conduct surveillance against foreign threats for national security purposes. No other court or Congress in the history of our constitutional government dating back to 1789 has concurred. In fact they have without exception, stated otherwise.

I'd also like to point out that no court has ruled FISA unconstitutional. However, let us turn to yet more established legal principles:

"The President, after all, is the 'Commander in Chief of the Army and Navy of the United States.' U.S. Const., Art. II., § 2. His authority to . . . control access to information bearing on national security . . . flows primarily from this constitutional investment of power . . . and exists quite apart from any explicit congressional grant. . . . The authority to protect such information falls on the President as head of the Executive Branch and as Commander in Chief.");
-Department of the Navy v. Egan, 484 U.S. 518, 527 (1988)

And:

"Where the President's authority concerning national security or foreign relations is in tension with a statutory rather than a constitutional rule, the statute cannot displace the President's constitutional authority and should be read to be "subject to an implied exception in deference to such presidential powers."
--Rainbow Navigation, Inc. v. Department of the Navy, 783 F.2d 1072, 1078 (D.C. Cir. 1986) (Scalia, J.).

And:

"in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring);

So the President has the right and even duty to decline to abide by, or enforce statutes that he believes unconstitutional.

I'd like to explore one more court decision here as well. Referenced ostensibly by the President's critics: Youngstown Co. v. Sawyer, 343 U.S. 579 (1952)
In this case the Justice Jackson laid out a three pronged test regarding the relationship between the executive and legislative branches.

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

First, I believe it unpersuasive that a lone concurring opinion should be the threshold on which the President’s wartime powers rest.
Second, this decision was a review and judgment of President Truman's domestic actions as Justice Jackson said "That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history."
Which indeed is quite clear and really undisputed here. (*though it is interesting as a historical footnote that 3 justices dissented!)

Bush's critics fail to acknowledge we are at war - an express authorization of Congress - with a foreign enemy, in bringing this case up.

I'd also like to make another citation while we are on the topic of Justice Jackson (who as FDR's Attorney General authorized warrantless wiretapping during WW II). In CHICAGO & SOUTHERN AIR LINES V. WATERMAN S.S. CORP. , 333 U.S. 103 (1948) he wrote:

The President, both as Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences. But even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.

Finally, let us turn to the FISA statute itself. Critics, without knowing the technical details of the program, have alleged the Bush administration has violated the law.

That can not be squared with the fact that the Administration has obtained over 5,000 FISA warrants since 2001.

Even more importantly, FISA only applies to "situations where the target of the surveillance is a U.S. person or where that surveillance is "acquired in the United States." The debate over the legality of president's action covers only those last two categories of cases, not everything done by the NSA." The language of the statute says:

"Electronic surveillance" means - (1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes"

Bush's critics seem to be contending that if the NSA is simply monitoring international calls by targeting terrorists in say Pakistan, FISA has been violated.
This is simply untrue and not supported by any reading of the statute or regulations enacted since it's passage.
So unless they can present evidence of such activity on the part of the NSA, or can persuade the Supreme Court (or any one for that matter) that the President does not have the power to engage in warrantless surveillance to gather foreign intelligence and disregard statutes he believes limit his constitutional powers, they need to give their claims a rest.

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For a review of some arguments put forth by DOJ see here (PDF warning)

AG Gonzales comments further on the program here

Senator Pat Roberts outlines the legality of the program here (PDF Warning)

ROBERT F. TURNER lays out the President's powers in an opinion piece here

The Plame Affair

2005-10-31T13:10:00.000-05:00

Well, from all indications it looks like this long investigation is concluding.
First, let me say I believe this a trivial issue and that no crime was committed. This is a big story only because the media is involved and due to a disdain for the current occupant of the White House.

Anyway, we are at a fever pitch of speculation. See, Tom Maguire , John McIntyre, and speculation on top of speculation!.

I agree with Tom Maguire that Rove is in the clear and I think that Libby beats any case.
But to think about Libby for a moment, is it really plausable that he would commit perjury or obstruct given he is himself an attorney? If your first thought is "so was Clinton" the difference I see is that Clinton pretty much knew the witness list and himself tried to suborn perjury. Libby couldn't have possibly have known who would be testifying as part of the investigation, therefore making him more cautious.
At least one would think.

Either way, Patrick Fitzgerald has a very tough case on the leak issue. The potential witness list would include Russert, Judy Miller, Cooper, who knows? Are these people credible?

In the end I agree with Victoria Toensing (who helped write the statute) that the IIPA was not violated, and that may preclude Mr. Fitzgerald from taking any dramatic action here.

On the no crime was committed angle, I agree with the media's lawyers (again Toensing) who argued in court that Plame's identity was already disclosed, and the agency wasn't taking affirmative measures to conceal her identity.
Media brief here (warning PDF)

Maybe that's why Plame posed for Vanity Fair?

We're left with one question, why has this investigation go on for two years?

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Update, the sole indictment has been issued and as noted above no Rove.

I'm still a bit perplexed by Libby's actions given he is an attorney. However, this is the Fitzmas that wasn't obviously as there is no charge regarding the IIPA and as Pat Fitzgerald said at his 10/28 Press conference: "We have not made any allegation that Mr. Libby knowingly and intentionally outed a covert agent."

The Left is Losing It

2005-10-26T09:47:00.000-04:00

Is the left's increasing irrelevancy starting to weigh too heavily?
Al Franken, deranged goon:

From a skit where he attacks a conservative.
"Funny" huh? More on Franken Here, Here, and Here

Added to list is Mother Cindy, who cracked long ago:

she said

Whatever.
Has there been a more unsuccessful spokesperson for any cause, ever?

Then, Howard Dean, the gift that keeps on giving:

Yes, the party of partial birth abortion and same sex marriage is the party of "moral values." Yes, indeed!
However, isn't it interesting that the leader of the party that has spent the last 40 years attacking religion in the public sphere, is using a moral argument for public policy?
Yes, the liberals, party of freedom from government interference except when you want to buy a handgun, keep more of your earnings, and want to speak out on issues on which they don't agree with you.

This is the alternative to voting Republican. Silly, ignorant hypocrisy.

What Liberal Media Bias?

2005-08-10T13:15:00.000-04:00

The New York Times has mentioned Air America Radio in articles 59 times in the last 17 months. To be fair, not all articles profiled or did fawning reviews of AAR. However, some articles have covered the radio station favorably, and given that AAR is in the NYT's back yard, you would think that a growing scandal involving $875,000 of city funds intended for children and Alzheimer's patients that ended up being used to fund AAR would be worth mentioning in the Times.
You would think wrong.

What other possible explaination could there be than bias?

Here is what the scandal involves:
1. The New York City Department of Investigations looking into Gloria Wise Boys & Girls Club where program officials allegedly "approved significant inappropriate transactions and falsified documents that were submitted to various city agencies

2. The city's Department of Investigation announced the suspension of city grants and contracts with Gloria Wise, worth millions of dollars because of these allegations.

3. City Contract Funds from Gloria Wise were invested into Air America Radio

4. Piquant Media which owns and operates AAR issued its first statement on the matter inisisting "On MAY 24, 2004 the newly formed PIQUANT LLC acquired the principal assets of AIR AMERICA RADIO from the prior ownership entities. PIQUANT has owned and operated AIR AMERICA RADIO since that time. The company that had run AIR AMERICA RADIO till then no longer had anything to do with the network."
--Which is technically accurate, but leaves out that the same President & CEO is in place, so are the main investors.

5. Piquant then issued another statment soon after which said: "The current owners of Air America Radio have no obligation to Progress Media's business activities"
-Which again, is misleading as some of the same people are running Piquant as had been on board with the former parent, Progress Media.

6. While making these pronouncements, Piquant also said they agreed to repay the funds "months ago" which is certainly conflicting.

7. Al Franken, the big name talent of AAR, spoke out publicly on this saying "payments to Gloria Wise were scheduled to begin this month but were prevented from going through while the city investigation continued" which turned out to be a bald face lie ("DOI has done nothing and given no instruction preventing payment of money owed to Gloria Wise [Boys & Girls Club]. Any statements to the contrary are inaccurate," said DOI spokesman Keith Schwam.")

8. In another conflicting statement, Franken said in the same interview, "Piquant LLC, current owner and operator of the radio network, found a record of the transfers while conducting a "forensic" investigation into the finances of the previous owner, Progress Media."
to which the DOI responded "if Air America discovered the transfers before the city probe began, "They neglected to tell anyone at DOI or in the city about it."

9. On August 5th, 2005 The first payment of $50,000 from Piquant to Gloria Wise was deposited into an escrow account controlled by Air America's lawyer. That unsettled city investigators, who had recommended that the entire $875,000 be placed into an escrow account that no one could touch without their approval. Its also worth noting here that AAR had said they couldn't pay-back the "loan" earlier because they were waiting instruction from DOI, which they then ignored!

10. New York State Attorney General Eliot Spitzer has stepped in, "We are looking into it in consultation with the city's Department of Investigation," Spitzer spokesman Darren Dopp revealed.

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To sum up, we have:

A charity for children and the elderly has been shut down
Funds from that charity went to Air America
The owners of Air America have put out conflicting statements, and took actions going againstthe instructions from the Dept. of Investigations
The State Attorney General is investigating.

Now given all of this, a single article can't appear in the New York Times?
What is stopping them?
I know what I believe to be true...

Here is what we are fighting against

2005-07-14T09:46:00.000-04:00

Iraq attack kills 18 children
US soldiers were giving out candy *Note to moonbats they weren't busy killing civilians

And:
'I don't feel your pain,' suspect tells victim's mom
AMSTERDAM, Netherlands -- The Muslim extremist on trial in the slaying of filmmaker Theo van Gogh confessed Tuesday, saying he was driven by religious conviction. "I don't feel your pain," he told the victim's mother.

-Lovely huh?
Don't worry, Senator Chappaquiddick & Co are busy talking about Rove and Santorum's book.

The Bartleby's in Charge

2005-07-14T00:20:00.000-04:00

Wouldn't you say that the last 2 weeks have had some rather signifcant developments that our "leaders" in Congress may want to focus on?
Say,
1. Iran (Hat Tip Atlas Shrugs)
2. The muslim terrorists bombing London (yes, some of the British political class is "shocked" they were not poor, uneducated, 'desperate', "freedom fighters" or whatever)
3. SCOTUS nomination(s)
4. The ongoing war per #2 above, and the fact that much like Great Britain we've probably allowed too many of these Muslim extremists to fester on our soil, and our border is a sieve.

What are the dopes on the Hill talking about?
ROVE
ROVE!!!!!!
"Karl Rove should immediately and fully apologize for his remarks or he should resign," Senate Democratic leader Harry Reid, D-Nev., said in a statement. "I hope the president will join me in repudiating these remarks."

Are you kidding me? People, these are serious times, where the decisions of our goverment can save lives, or kill people. What are these too tepid elected representatives doing instead? Fanning the flames of a non-story the media think important and being totally derelect in their duty to protect and defend this country.
God help us all , because much like Bartleby, they prefer not too...

The Moonbats are Cracking

2005-06-21T22:40:00.000-04:00

Well, I need not go too far in commenting on the continuing Durbin Lies ("This administration should apologize to the American people for abandoning the Geneva Conventions and authorizing torture techniques that put our troops at risk and make Americans less secure"), but I want to note that the left is more forcefully rallying around their latest hero. Scott at Powerline notes that the Minny Star Tribune is continuing the lies for this rally. Which is disgusting.
I'm still waiting for Senator McCain, who ought to know what actually defines torture, to come to the floor of the Senate and unload on Durbin. I guess that won't happen, but McCain is a Republican isn't he?

Anyway, the point of this post is that the left has gone completely berserk. We have "I hate Republicans" Dean as the spokesman for the party. "Chairman" Conyers holding mock impeachment procedings, and the #2 democrat in the Senate equating someone laying on the floor handcuffed, and loud pop music with Auschwitz while the 2008 prospective Democratic Presidential nominee says "no comment".

People, we have one party that is talking about the strategic objectives of a peaceful and prosperous Iraq, Social Security and tax reform, reinventing our military to handle the emerging threats of this century, and making us safer in our homes. We have another inviting anti-Semites into the Capitol "thanking them for their candid answers"

They have cracked.

Update:
Durbin has "apologized" by saying "Some may believe that my remarks crossed the line, to them I extend my heartfelt apologies."

Uh huh. Too little, too late Senator.

Cruise: American Canker Sore...

2005-06-21T15:30:00.000-04:00

Tom Cruise represents everything that is wrong with today's "men."
42 going on 22, acting like a goofy little boy on national tv, and someone practically assaults him and he responds by calling them "a jerk".
But, he was tough enough to attack Brooke Shields. Give it up, she's much prettier than you Tommy Boy (I'm sure Rosie disagrees), and she doesn't believe in your silly "religion"

Wow, do I feel for today's single woman (run Katie run!). These self-absorbed, wimpy, pretty-boy, "men" who refuse to grow-up and date women who are 15 years younger are sad. The scary part is that more and more males are becoming just like this. I can't imagine my father or grandfather even fathoming the thought of this childishness...

Oh, and I've got news for you Tommy Boy, I've been in love too. I've been blown away by a woman before (who wasn't a 26 year old air-head). But I didn't madly pump my fists in the air or jump on couches. And trust me, I've had to work a lot harder for it then you.
Grow up, get some class, be a man.

Bill Clinton: Irrelevant as ever

2005-06-21T12:54:00.000-04:00

The man will go down in history as irrelevant while in office.
And now:

-What more can you say?