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Senate Intelligence Chairman: Bush Can Spy

by Edward ODaniel / February 5, 2006 4:38 AM PST
Senate Intelligence Chairman Says Bush Has Authority Under the Constitution for Domestic Spying
By PETE YOST

WASHINGTON Feb 3, 2006 (AP)
? Senate Intelligence Committee Chairman Pat Roberts said Friday the Bush administration's domestic spying is within the president's inherent power under the Constitution, and he rejected criticism that Congress was kept in the dark about it.

The program is ''legal, necessary and reasonable,'' the Kansas Republican wrote in a 19-page letter, taking a particularly expansive view of the president's authority for the warrantless surveillance.

''Congress, by statute, cannot extinguish a core constitutional authority of the president,'' Roberts wrote.

Presidents from George Washington to George W. Bush have intercepted communications to ascertain enemy threats to national security, Roberts told the chairman and ranking Democrat on the Senate Judiciary Committee. Roberts' letter came just three days before that panel was to question Attorney General Alberto Gonzales about the surveillance.

http://abcnews.go.com/Politics/wireStory?id=1578397

This might be an eye opener to the nay sayers but all things considered I kind of doubt it because it involves clicking links and reading rather than having their favorite Op Ed author tell them what to think and knowing the media it will not be about a well documented Foreign Intelligence Exception to the Warrant Requirement.

Below find just a tiny portion of one of many rulings and precedents for the rulings finding that the following is pulled from that places everything within the full context of the many precedential decisions--
The district court accepted the government's argument that there exists a foreign intelligence exception to the warrant requirement. The district court, however, also decided that the executive could proceed without a warrant only so long as the investigation was ''primarily'' a foreign intelligence investigation. The district court decided that the FBI investigation had become primarily a criminal investigation by July 20, 1977, and excluded all evidence secured through warrantless surveillance after that date. Conversely, all evidence secured before July 20 was not suppressed by the district court, because it determined that during that period the investigation primarily concerned foreign intelligence. We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance.

This is the court's document and I have not highlighted any of it to make it easier to read (for those skimmers who will not be looking at the source the following quoted material is linked from here.

I have linked to the Google Cached copy so terms would be highlighted and easy to find even for skimmers.
http://66.102.7.104/search?q=cache:Ba6LCpUCEQMJ:www.jurisearch.com/newroot/caselink.asp%3Fseries%3DF.2d%26citationno%3D629%2BF.2d%2B908++%22Truong+Dinh%22+%22need+not+always+obtain+a+warrant%22&hl=en

***************************************

UNITED STATES of America, Appellee,
v.
TRUONG DINH HUNG, Appellant.
UNITED STATES of America, Appellee,
v.
Ronald Louis HUMPHREY, Appellant.

Nos. 78-5176, 78-5177.
United States Court of Appeals,
Fourth Circuit.
Argued Dec. 6, 1979.
Decided July 17, 1980.

....
II.

A. Foreign Intelligence Exception to the Warrant Requirement

The defendants raise a substantial challenge to their convictions by urging that the surveillance conducted by the FBI violated the Fourth Amendment and that all the evidence uncovered through that surveillance must consequently be suppressed. As has been stated, the government did not seek a warrant for the eavesdropping on Truong's phone conversations or the bugging of his apartment. Instead, it relied upon a ''foreign intelligence'' exception to the Fourth Amendment's warrant requirement. In the area of foreign intelligence, the government contends, the President may authorize surveillance without seeking a judicial warrant because of his constitutional prerogatives in the area of foreign affairs. On this basis, the FBI sought and received approval for the surveillance from the President's delegate, the Attorney General. This approval alone, according to the government, is constitutionally sufficient to authorize foreign intelligence surveillance such as the surveillance of Truong.

The district court accepted the government's argument that there exists a foreign intelligence exception to the warrant requirement. The district court, however, also decided that the executive could proceed without a warrant only so long as the investigation was ''primarily'' a foreign intelligence investigation. The district court decided that the FBI investigation had become primarily a criminal investigation by July 20, 1977, and excluded all evidence secured through warrantless surveillance after that date. Conversely, all evidence secured before July 20 was not suppressed by the district court, because it determined that during that period the investigation primarily concerned foreign intelligence.

We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance. Although the Supreme Court has never decided the issue which is presented to us, it formulated the analytical approach which we employ here in an analogous case, United States v. United States District Court (Keith), 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). In Keith, the executive had conducted warrantless domestic security surveillance. The Court posited two inquiries to guide the Fourth Amendment determination of whether a warrant is required:

If the legitimate need of Government to safeguard domestic security requires the use of electronic surveillance, the question is whether the needs of citizens for privacy and free expression may not be better protected by requiring a warrant before such surveillance is undertaken. We must also ask whether a warrant would unduly frustrate the efforts of Government to protect itself from acts of subversion and overthrow directed against it.

407 U.S. at 315, 92 S.Ct. at 2135. Balancing individual privacy and government needs, the Supreme Court concluded that the executive must seek a warrant before it undertakes domestic security surveillance.

For several reasons, the needs of the executive are so compelling in the area of foreign intelligence, unlike the area of domestic security, that a uniform warrant requirement would, following Keith, ''unduly frustrate'' the President in carrying out his foreign affairs responsibilities. First of all, attempts to counter foreign threats to the national security require the utmost stealth, speed, and secrecy. A warrant requirement would add a procedural hurdle that would reduce the flexibility of executive foreign intelligence initiatives, in some cases delay executive response to foreign intelligence threats, and increase the chance of leaks regarding sensitive executive operations. 2 See Zweibon v. Mitchell, 516 F.2d 594, 704 (D.C.Cir.1975) (Wilkey, J., concurring and dissenting).

More importantly, the executive possesses unparalleled expertise to make the decision whether to conduct foreign intelligence surveillance, whereas the judiciary is largely inexperienced in making the delicate and complex decisions that lie behind foreign intelligence surveillance. See New York Times Co. v. United States, 403 U.S. 713, 727-30, 91 S.Ct. 2140, 2148-2150, 29 L.Ed.2d 822 (1971) (Stewart, J., concurring); United States v. Belmont, 301 U.S. 324, 330, 57 S.Ct. 758, 760, 81 L.Ed. 1134 (1937). The executive branch, containing the State Department, the intelligence agencies, and the military, is constantly aware of the nation's security needs and the magnitude of external threats posed by a panoply of foreign nations and organizations. On the other hand, while the courts possess expertise in making the probable cause determination involved in surveillance of suspected criminals, the courts are unschooled in diplomacy and military affairs, a mastery of which would be essential to passing upon an executive branch request that a foreign intelligence wiretap be authorized. Few, if any, district courts would be truly competent to judge the importance of particular information to the security of the United States or the ''probable cause'' to demonstrate that the government in fact needs to recover that information from one particular source.

Perhaps most crucially, the executive branch not only has superior expertise in the area of foreign intelligence, it is also constitutionally designated as the pre-eminent authority in foreign affairs. See First National Bank v. Banco Nacional de Cuba, 406 U.S. 759, 765-68, 92 S.Ct. 1808, 1812-1814, 32 L.Ed.2d 466 (1972); Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 310, 62 L.Ed. 726 (1918). The President and his deputies are charged by the constitution with the conduct of the foreign policy of the United States in times of war and peace. See United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936). Just as the separation of powers in Keith forced the executive to recognize a judicial role when the President conducts domestic security surveillance, 407 U.S. at 316-18, 92 S.Ct. at 2136-2137, so the separation of powers requires us to acknowledge the principal responsibility of the President for foreign affairs and concomitantly for foreign intelligence surveillance.

In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance. Accord, United States v. Butenko, 494 F.2d 593 (3 Cir.), cert. denied sub nom., Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974); United States v. Brown, 484 F.2d 418 (5 Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974); United States v. Clay, 430 F.2d 165 (5 Cir. 1970), rev'd on other grounds, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971). 4 Contra, Zweibon v. Mitchell, 516 F.2d 594 (D.C.Cir.1975) (dictum in plurality opinion in case involving surveillance of domestic organization having an effect on foreign relations but acting neither as the agent of nor in collaboration with a foreign power).

However, because individual privacy interests are severely compromised any time the government conducts surveillance without prior judicial approval, this foreign intelligence exception to the Fourth Amendment warrant requirement must be carefully limited to those situations in which the interests of the executive are paramount. First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators. Cf. Zweibon v. Mitchell, 516 F.2d 594, 613 n.42 (D.C.Cir.1975). In such cases, the government has the greatest need for speed, stealth, and secrecy, and the surveillance in such cases is most likely to call into play difficult and subtle judgments about foreign and military affairs. When there is no foreign connection, the executive's needs become less compelling; and the surveillance more closely resembles the surveillance of suspected criminals, which must be authorized by warrant. Thus, if the government wishes to wiretap the phone of a government employee who is stealing sensitive documents for his personal reading or to leak to a newspaper, for instance, the absence of a foreign connection and the importance of individual privacy concerns contained within the Fourth Amendment lead to a requirement that the executive secure advance judicial approval for surveillance. See Zweibon v. Mitchell, 516 F.2d 594, 703-04 (D.C.Cir.1975) (Wilkey, J., concurring and dissenting).
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But look at what this idiot says,
by duckman / February 5, 2006 5:16 AM PST
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(NT) (NT) key word is idiot says it all
by Mark5019 / February 5, 2006 5:29 AM PST
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Specter is a RINO of integrity...
by Edward ODaniel / February 5, 2006 6:46 AM PST

that is he is aware of what constitutes integrity but won't be caught dead or alive being accused of acting with any.

Ever notice how NONE of the nay sayers can point to any court decisions that support their indefensible view?

Even the FISA court as recently as 2002 when making a determination on the patriot act and search and seizures made it rather plain in their decision that nothing in the 1978 law can remove or inhibit presidential Constitutional Authority and responsibilities.

As DavE said, they are working for us!

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They'll never learn :-(
by Evie / February 6, 2006 11:59 PM PST

They are supporting Chaffee in RI instead of challenger Laffey because Chaffee is supposedly more re-electable. The one unfortunate practical reality is that Chaffee and Specter, etc. do vote for Republican Majority Leader which does have a huge effect on the workings of the Senate. So a liberal RINO is still better than a conservative Dem.

Evie Happy

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Response
by JP Bill / February 5, 2006 11:17 AM PST

Did this case happen before the FISA was passed?

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Response
by duckman / February 5, 2006 11:27 AM PST
In reply to: Response

FISA reaffirmed the President's legal power

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Didn't you read it?
by Edward ODaniel / February 5, 2006 10:49 PM PST
In reply to: Response

FISA 1978 Truong 1980

FISA 2002 reaffirmed the Congressional powers of the President and that they could not encroach on them.
http://www.washtimes.com/national/20051222-122610-7772r.htm

U.S. Foreign Intelligence Surveillance Court -- the secretive judicial system that handles classified intelligence cases -- wrote in a declassified opinion that the court has long held "that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."

The court wrote: "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."

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Response
by JP Bill / February 5, 2006 11:18 PM PST
In reply to: Didn't you read it?
We take for granted that the President does have that authority and, assuming that is so

Isn't this example the FISA court interpreting it's own rules? Investigating itself?

The court takes ''something for granted'' and then ''assumes''.

UNTIL a judgement (by an outside court) has been made, it isn't right to ''take anything for granted'' or ''assume'' anything.
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That was their DECISION and...
by Edward ODaniel / February 5, 2006 11:34 PM PST
In reply to: Response

if you check sources you will dicsover that specific cases are cited including Supreme Court decisions (some of which were cited and explained within the Truong case previously linked to).

I can't do all your reading for you, some things you simply must do yourself for yourself.

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I can't do all your reading for you
by JP Bill / February 5, 2006 11:49 PM PST

You can't do any reading/thinking for me.

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Ed, your citation is NOT on point, as the footnotes reveal!
by Dave Konkel [Moderator] / February 6, 2006 3:14 AM PST

>> 2 The practical difficulties of obtaining a warrant for foreign intelligence surveillance were particularly acute at the time this surveillance was conducted, because Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C.

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You're not GETTING IT DK!
by Kiddpeat / February 6, 2006 3:53 AM PST

The President has Constitutional authority to act. Congress has NO POWER to limit his activity in this particular sphere.

You still think the Supreme Court of Houston still has the last word eh?

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(NT) (NT) No, the Huston editorial board does !!
by duckman / February 6, 2006 3:55 AM PST
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(NT) (NT) Another vote for the Supreme Court of Houston.
by Kiddpeat / February 6, 2006 4:02 AM PST
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Let's apply Bush's own "strict construction" theory, KP...
by Dave Konkel [Moderator] / February 7, 2006 8:19 AM PST

Where does the Constitution give the President specific power to conduct wiretaps? Bush's arguments in this case aren't just loose, they're downright sloppy! Devil

On a serious note, the President's power in this area has already been limited by the War Powers Act, which no President has sought to challenge -- so that indicates that Congress DOES have the right to limit presidential power in this arena.

-- Dave K, Speakeasy Moderator
click here to email semods4@yahoo.com

The opinions expressed above are my own,
and do not necessarily reflect those of CNET!

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Already pointed out to you...
by Edward ODaniel / February 7, 2006 1:36 PM PST

several times.

It is part and parcel with and of being Commander in Chief and responsible for the Security of the country.

Falls under REASONABLE searches according to the Supreme Court as well as FISA and several other Federal Courts.

On a Serious Note SEVERAL PRESIDENTS have not only challenged the War Powers Act but have forced Congress to accede to their challenges.

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And some of those things you avoid - LINKS
by Edward ODaniel / February 7, 2006 2:06 PM PST
http://www.heritage.org/Research/NationalSecurity/hl529.cfm

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/warandtreaty.htm

And the Clinton Network News since I know you don't like the Heritage Foundation
http://www.cnn.com/2003/LAW/03/13/antiwar.lawsuit/

http://www.csmonitor.com/2005/1222/p01s03-uspo.html

And if you read NONE of the rest you should take a quick look at this link and especially the Constitutional questions.
http://www.fas.org/man/crs/RL32267.html#_1_11

And of course Clinton's challenges and actions.
http://www.law.duke.edu/journals/lcp/articles/lcp63dWinterSpring2000p125.htm

and Dean who is misquoted by many on the left but whose words and meaning are clear when read.
http://writ.news.findlaw.com/dean/20020607.html
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You better read the citations again DK...
by Edward ODaniel / February 6, 2006 9:40 AM PST

because as the court clearly acknowledged with their statement:

"In sum, because of the need of the executive branch for flexibility, its practical experience, and its constitutional competence, the courts should not require the executive to secure a warrant each time it conducts foreign intelligence surveillance. Accord, United States v. Butenko, 494 F.2d 593 (3 Cir.), cert. denied sub nom., Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974); United States v. Brown, 484 F.2d 418 (5 Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974); United States v. Clay, 430 F.2d 165 (5 Cir. 1970), rev'd on other grounds, 403 U.S. 698, 91 S.Ct. 2068, 29 L.Ed.2d 810 (1971). 4 Contra, Zweibon v. Mitchell, 516 F.2d 594 (D.C.Cir.1975) (dictum in plurality opinion in case involving surveillance of domestic organization having an effect on foreign relations but acting neither as the agent of nor in collaboration with a foreign power).

However, because individual privacy interests are severely compromised any time the government conducts surveillance without prior judicial approval, this foreign intelligence exception to the Fourth Amendment warrant requirement must be carefully limited to those situations in which the interests of the executive are paramount. First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators. Cf. Zweibon v. Mitchell, 516 F.2d 594, 613 n.42 (D.C.Cir.1975). In such cases, the government has the greatest need for speed, stealth, and secrecy, and the surveillance in such cases is most likely to call into play difficult and subtle judgments about foreign and military affairs. When there is no foreign connection, the executive's needs become less compelling; and the surveillance more closely resembles the surveillance of suspected criminals, which must be authorized by warrant. Thus, if the government wishes to wiretap the phone of a government employee who is stealing sensitive documents for his personal reading or to leak to a newspaper, for instance, the absence of a foreign connection and the importance of individual privacy concerns contained within the Fourth Amendment lead to a requirement that the executive secure advance judicial approval for surveillance. See Zweibon v. Mitchell, 516 F.2d 594, 703-04 (D.C.Cir.1975) (Wilkey, J., concurring and dissenting).

That Dave is the decision of the Appeals Court agreeing with the District Court and by reason of the same cited cases and Supreme Court decisions. It is not the opinion of the Houston Chronicle which you have somehow decided is a better authority than the federal courts. Your opinion author simply neglects to mention (or totally disregards because it is inconvenient to his thesis) that the FISA court itself in 2002 stated that it had no authority to impinge on the Constitutional Authority of the President. Yes, that is mighty inconvenient to his argument when people are made aware of that little unmentioned fact.

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Please don't contradict SE's resident
by duckman / February 6, 2006 9:48 AM PST

legal scholar with actual case citations instead of hyperbole. I?m still waiting for his clarification on connecting Marbury V. Madison and habeas corpus

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Remember party lines?
by Dragon / February 6, 2006 9:07 AM PST

Once upon a time, anybody could pick up their phone and hear other people talk to each other. The operator knew everything going on in town. People look back fondly at these memories but don't connect today's big fuss over right to privacy with the good-ole days. Funny, huh?

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Since the present President KNOWS what the law is
by JP Bill / February 6, 2006 10:37 PM PST
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Response,
by duckman / February 6, 2006 11:43 PM PST

as pathetic as a President as Carter was/is/will be, even he can't delegate Constitutional powers away from the President

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Response,
by duckman / February 6, 2006 11:43 PM PST

as pathetic as a President as Carter was/is/will be, even he can't delegate Constitutional powers away from the President

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This wasn't an accidental repost of the above one,
by duckman / February 7, 2006 9:10 PM PST
In reply to: Response,

It seems that some mod (don't know which one HE may have been) must have made a mistake while "editing" posts

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Yes but apparently dementia has set in...
by Edward ODaniel / February 7, 2006 1:34 AM PST
In 1978, for instance, Attorney General Griffin B. Bell testified before a federal judge about warrantless searches he and President Carter had authorized against two men suspected of spying on behalf of the Vietnam government.

Of course that was shortly before FISA was passed (hold on now and do keep reading) supposedly barring such according to him now.

But that wasn't it at all as FISA itself made clear AGAIN in 2002 when they wrote in a declassified opinion that the court has long held "that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." (an opinion of the court is their legal decision as opposed to the Houston Chronicle's opinion that is not a court decision although DK prefers it.)

A Washington Post report at the time said the new FISA law permits "the government (primarily NSA with the occasional help of an FBI 'black bag job' or break-in) to continue electronic spying without a court order if it is directed solely at the premises or communications of 'official' powers, such as governments, factions or entities openly known to be directed and controlled by foreign governments."
The year after FISA became law, a columnist in The Washington Post described what could still happen to any person or group determined to be "an agent of a foreign power."
"Once the attorney general has made that finding about someone, then the FBI can spy on them or burglarize their offices," wrote William Greider in a May 1979 column.

http://www.washtimes.com/national/20051222-122610-7772r.htm
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(NT) (NT) Nice hack job you dug up there!
by Evie / February 7, 2006 1:37 AM PST
In reply to: This Pat Roberts?
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Yes indeed it is and...
by Edward ODaniel / February 7, 2006 1:51 AM PST
In reply to: This Pat Roberts?

from the inventiveness of the author of the piece, Larisa Alexandrovna, she should be writing for the Brothers Grimm or science fantisies for the masses.

Note how very careful she is to avoid any mention that Roberts beliefs were like those already spoken to the press by Democrats PRIOR to 9/11 (the long list has been posted before but is ready to hand if you can't admit it) and that they were STILL enunciating every chance they got.

Note also that she concentrates on the "Niger forgeries" although it was the press and Wilson who demoted the Africa Bush mentioned to the Nigeria they concentrated on (because as it has been shown there had indeed been recent fishing expeditions by Iraq for Uranium from other African countries).

The rest of the article continues the biased tirade unfettered by any dependence on facts in preference to fiction. You really need better sources.

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Why is it tyhat so many...
by EdH / February 7, 2006 8:50 PM PST

are bending over backwards to find that the President did something wrong? You would think they'd say, "Here's justification for spying on the enemy, let's go with it." It's not like they are monitoring your conversations with your bookie or Uncle Leo.

Al Qaeda must love this stuff.

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