Jan 15 2009
Finally! Top Federal Court Vindicates Bush On FISA-NSA
Final Comment: A lot of delusional liberals keep trying to claim this ruling means little. It is quite hilarious to watch a lot of people with law degrees miss the major points of the case. They seem to think if they ignore the main thrust on focus on irrelevant details there is an argument to keep this conspiracy theory alive.
First off, this is not a ruling in isolation, it is part of a series of rulings regarding the President’s rights to engage in intelligence gathering on people overseas without a warrant. By re-establishing this Presidential power it means anyone swept up in these actions is as much fair game as any non-warranted person who is caught on a warranted wire tap. This is the difference between a TARGET of the investigation and the CONTACTS that communicates with the TARGET, and who have their communications with the TARGET snooped on by the Feds. The only difference is whether a warrant is required, not that CONTACTS don’t get caught on wire taps.
Additionally, while the authority under which these intelligence actions took place have changed from executive orders to temporary legislation to permanent legislation – the actions have not changed. The Feds are still using communications between Americans and known terrorists to ensure the safety of this nation. Over the years the process and paperwork has of course been tweaked. And once leaked to the public, the restriction on only the Chief FIS Court judge knowing which cases were the result of NSA intercepts verses FBI warrants was clearly not needed anymore. But the basic act of using the information intercepted to investigate threats inside our borders – the changes Bush directed – has not changed under any of the various legal authorities set in place.
Even further, the legislation making these acts legal as executed under the executive order, was the legislature’s signature that this was allowed. They removed debate by codifying the executive orders – they did not once overturn them. And with a series of judicial stamps of approval there is a common federal voice across the three branches on this matter. This is a mountain of precedence and law and decisions. How blind by denial must one be to miss this?
So no matter what legal instrument was used, the acts are now deemed legal. If legal under the temporary legislation it is legal under the permanent laws. And since the decision re-affirms the right to do foreign intelligence gathering without a court warrant (as do both sets of laws), the actions under executive order are also legal. It is not the laws that count, it is the fact the laws all assume, and the decision confirms, the President doesn’t require a warrant to gather intel on foreign threats, even if people in America and US citizens get swept up in it.Â
The threat of attack, as agreed to by people other than the President, gives the executive branch the power to retain the information they capture and pass it to the FBI. And that is the big change since 9-11: we don’t throw known leads away and not tell the FBI whom and where to look for threats. Only an idiot with a law degree could rationalize going back to that model of protecting the people of the United States from foreign attack.
It is nice to know a lowly space engineer with a biology degree is still sharper than a bunch of over payed liberal lawyers. Wouldn’t be the first time.
Major Update: For all the liberals in denial out there the WSJ has a great round up of the mountain of rulings that preceded this landmark vindication. Denial is not an excuse anymore. – end update
 
The NY Times allowed a liberal, disgruntled DoJ employee to expose one of our nation’s most valuable defensive programs against terrorist attack based on the man’s ignorance of the facts. I recently wrote about the traitor Thomas Tamm – who should be indicted and thrown in jail for pretending (a) to be more powerful than our laws or the commander-in-chief and (b) for exposing national security secrets based on fantasies in his head that bore no resemblance to the truth of the matter. He is a modern day Benedict Arnold.
And the NY Times should be punished for running this false crap as fact. Tamm had no clue what the program was about, and no idea that the FIS Court Chief Judge was supporting the new processes put in place after 9-11. Processes that are critical to saving American lives. Processes which replaced dangerously muddled thinking from the late 1970’s, where some in our government knew that someone in the US was in contact with known terrorists out to kill us, but they were not allowed to tell the FBI so they could go investigate and see how bad or real the danger was! No, couldn’t have that.
Well now the top intelligence court of the land has come out with an opinion vindicating Bush and settling once and for all how insane the lunatic left is when it comes to national security.
A federal intelligence court, in a rare public opinion, issued a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a specific court order, even when Americans’ private communications may be involved.
…
The Aug. 22 appeals court decision upheld a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications.
“The Department of Justice is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007,†a Justice Department statement said.
The FIS Court of Review is the top court in the land on such matters. Think of it as the Appellate/Supreme Court on national security matters. There is no higher authority in the federal court system.Â
All those moans and groans about the 4th Amendment and Bush spying on Americans was a bunch fantasy fiction. And now the court has made it unanimous, all three branches of government have supported the changes. Maybe now the NY Times and all those nuts on the left can finally eat their crow – they have a lot of it to shovel down.
I have followed this story from the day it broke (you can find my numerous posts on the matter here) and was one of the first one to realize the NY Times lied. It lied about Bush bypassing the court (the FIS Court judge who also exposed national secrets on this matter was mad that the NSA leads were being heard at the court, not that they were going around the court). It lied about the essence of the program. It lied about the entire matter – an won journalism awards for their garbage.
They lied and risked the lives of all Americans by tipping of our enemies about how we were detecting their forces as they tried to get into the country and to their targets. These people filled their heads with righteous fantasies of themselves as heros and could have easily killed thousands of people if the news had broken at the wrong time.
Bush leaves office vindicated, and the Mad-Hatter left has destroyed what little credibility they have left. They are lucky that is all their insane actions resulted in.
Update: Here is the opinion itself.
If Conman’s really a lawyer, he’s damned crappy one. He appears not to understand what Precedent is and the weight it carries in our judicial system. AJ does, as do any real practicing lawyers. (not wannabes like conman)
Conman’s point is that the decision as written is limited to the actual facts of the case. Of course it is, most decisions from any court are! He’s taking an everyday piece of common knowedge about judicial decisions and trying to pretend that it’s something novel, noteworthy, and controlling. It isn’t.
The FIS Court of Appeals has detailed it’s reasoning and established precedent for future decisions on these types of claims. Given their position in the Federal Court System, this precedent will be controlling on all lower federal courts and it is not reasonable to think that this court will contradict itself in future decisions. This opinion was published for the purpose of letting the public know of this new controlling precedent.
And the effects of this Precedent will affect all future court actions over this program just as AJ said it will.
If the 2007 PAA was constitutional, then the logic used to make that ruling also means that the previous actions were also constitutional. If conman honestly doesn’t know that, he’s an embarrasment to the legal profession.
Obama is going to use everything from enhanced interrogation to this program. I doubt that we will be hearing Guy and Conman demanding he be tried for treason or war crimes.
Double standards.
BTW, I hear Pepsi is going to launch a new marketing campaign around Obama. He will refresh the nation. Money honey. And there will be Obama Tshirts and Obama documentaries and Will Smith will make the movie. He will be a huge money maker for Hollywood and Madison Avenue. Not to mention the biggest and most expensive Inaugural in history. Imagine the reaction if McCain had won and had a huge inaugural. We would be hearing about homeless people starving in gutters while rich Republicans party.
So this is just another example of do as we say, not as we do.
Even though this case was about the 2007-2008 PAA, it sets a precedent, as the Wall Street Journal points out in today’s article.
Here are the key sections from the article:
—
But the Constitution bans only “unreasonable” search and seizure, not all searches and seizures, and the Fourth Amendment allows for exceptions such as those under a President’s Article II war powers. The courts have been explicit on this point. In 1980, the Fourth Circuit Court of Appeals held in Truong that “the Executive need not always obtain a warrant for foreign intelligence surveillance.”
—
FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed. Though the decision applies only to the stopgap FISA measure in place between 2007 and 2008, it sets a precedent
http://online.wsj.com/article/SB123206822799888351.html?mod=djemEditorialPage
Wow – whole lotta fightin’ going on right here.
The ruling, once private now public, didn’t decide everything, but seems to be in the direction of support for what Bush was doing. Period. Stop.
We’ll soon see if Obama is any different from Bush on this and related matters. Campaign rhetoric is over now, fellas. Let’s let reality set in and see if Obama is going to be who GuyF and other avid Obama supporters thought and hope he is – or see if Obama continues to Bush-i-fy himself more and more.
Whomever,
Great words of wisdom there my friend. I would note Obama already made his decision when he voted to make the FISA changes permanent in last summer’s vote.
AJStrata
AJ:
Will you at least admit that this ruling only concerned the Protect American Act that was passed in 2007? I mean – anyone with an ability to read can see it themselves, just from reading what you quoted yourself in the article:
“The Department of Justice is pleased with this important ruling by the Foreign Intelligence Surveillance Court of Review, which upholds the constitutionality of foreign intelligence surveillance conducted under the Protect America Act of 2007,†a Justice Department statement said.
That’s pretty clear, right? PAA of 2007 – it’s right there.
This had nothing – NOTHING – to do with the illegal warrantless wiretapping that was done at the President’s request from 2001-2006. How you can state that a ruling about something that Congress did is somehow a “vindication” of Bush is somewhat bewildering.
Snapple,
I think the news is coming out now to (a) tie the hands of the radical left and (b) give cover the Dems in Congress who can now point to the ruling to claim the whole thing is OBE.
AJStrata
Conman,
Your law degree aside the federal prosecutors and lawyers I talk to would find your blinders hilarious.
Sorry, but being a lawyer doesn’t make you right.
WWS,
Thanks – I was loathing the effort to explain precedence to the libs. And this is not the only case. This is only the second case this court has heard. The first was the resistance of the FIS Court to the changes, and they were slapped down. I have a link to the original decision in the post from years ago.
Precedence – a tough concept for radicals to deal with.
Glad to see my former college professor can finally shove it. I was right when I wrote my paper on the wiretaps. And no matter how much he tried to make me look a fool my classmates and I made him look worse. And now the truth is out. HA HA! (ok gloating is over).
DJStrata,
Yeah – I forgot about that one! Trust Dad.
AJStrata
GuyF Will you at least admit that this ruling only concerned the Protect American Act that was passed in 2007? I mean – anyone with an ability to read can see it themselves, just from reading what you quoted yourself in the article:
All rulings concern the case in question AND all future issues concerning the same issue that come before lower courts. But you can see from this:
But the Constitution bans only “unreasonable” search and seizure, not all searches and seizures, and the Fourth Amendment allows for exceptions such as those under a President’s Article II war powers. The courts have been explicit on this point. In 1980, the Fourth Circuit Court of Appeals held in Truong that “the Executive need not always obtain a warrant for foreign intelligence surveillance.” The FISA appeals court said in its 2002 opinion In re Sealed Case that the President has “inherent authority to conduct warrantless searches to obtain foreign intelligence information” and took “for granted” that “FISA could not encroach on the President’s constitutional power.” FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed. Though the decision applies only to the stopgap FISA measure in place between 2007 and 2008,
That they are clarifying that the President has been correct all along (since the ruling in 1980) that the President has constitutional authority to conduct warrantless searches.
So no, the case was just about the PAA of 2007, it clearly re-affirmed the Presidents constitutional authority (from 1780 something) , therefore it was about MUCH more. It was about ‘the libs are wrong, as usual’.
So your statement “anyone with the ability to read” , you may want to alter to ‘exclude libs’. The ability to read doesn’t seem to apply.
AJ/WWS/Bobsunshine,
One of the more entertaining things for lawyers is to watch people with no legal training play “lawyer” and think they know what they are doing. You guys gave me some good laughs this morning – thanks. Okay, I’ll try once again to cut through all of your confusion and explain this as simply as I possibly can. If you don’t get it this time, well I give up because it is obviously hopeless.
“Conman’s point is that the decision as written is limited to the actual facts of the case.”
No, actually that is not my point at all. My point is that the Court’s decision is limited to the constitutionaility of the 2007 PAA. The facts in this case were largely irrelevant – the issue before the Court was almost entirely legal in nature – is the 2007 PAA constitutional.
“If Conman’s really a lawyer, he’s damned crappy one. He appears not to understand what Precedent is and the weight it carries in our judicial system.”
No, actually you have no idea what precedent is (by the way, no need to capitulize the word “precedent” – if you do people with actual legal training will know you don’t know what you are taking about). First of all, the precedent established by the Court’s decision in this case is only binding on the FISA Court. The FISA Court cannot bind any of the other Federal District Courts. Second, and more importantly, precedent only applies to other cases that involve the same issue. The only presedent established by the Court’s decision in this case is that the 2007 PAA is constitutional.
“If the 2007 PAA was constitutional, then the logic used to make that ruling also means that the previous actions were also constitutional. If conman honestly doesn’t know that, he’s an embarrasment to the legal profession.”
This statement is so wrong I don’t know where to start, but let me attempt to do so by explaining the difference between the 2007 PAA and the NSA program prior to the adoption of the 2007 PAA.
The 2007 PAA was legislation adopted by Congress and signed by President Bush, that amended FISA. The 2007 PAA clearly sets forth the authority of government in undertaking surveillance activity and the role of the FISA Court in reviewing/monitoring the government. Most legal scholars assumed the 2007 PAA was constitutional and therefore the FISA Court’s decision actually is not surprising to those of us in the legal community. In fact, there really is no major contraversy since, as several people have pointed out, the 2007 PAA was bi-partisan and supported by a majority of both Republicans and Democrats.
Bush’s NSA program presents entirely differenty legal /factual issues. First and foremost, the NSA program was not conducted pursuant to any legislative authority. To the contrary, it was conducted in direct violation of the then existing FISA which required the government to get Court approval for surveillance. Bush’s legal theory was that his constitutional authority as CIC when it came to safeguarding the country trumped any legislative authority. The legal question of whether a legislative act is constitutional is entirely different from the question of whether the President has the inherant constitutional authority to ignore specific legislation governing the rules for government surveillence. They are not even close! The later issue was not before the Court, was not decided even tangentially by the Court and has yet to be resolved by the Courts.
The other major difference is that unlike the 2007 PAA, we have no idea of the scope or methodology of the prior NSA program because Bush has refused to disclose it on the grounds that it is secret. I’ve certainly never heard anyone claim that the previous NSA program was identical to the 2007 PAA. What we do know is that the entire senior leadership of the DOJ and FBI was so concerned about a certain component of the program which they all concluded was unconstitutional that they were threatening to resign en masse until Bush backed down and agreed to remove this aspect of the program.
“Even though this case was about the 2007-2008 PAA, it sets a precedent, as the Wall Street Journal points out in today’s article.”
Oh my god, if the MSM said it was so then it must be so. Everyone on this site, in particular, AJ, views the MSM as the word of GOD! Don’t rely on the MSM. By the way Bob, FISA was not limited to “certain domestic wiretaps in the context of the Cold War”. FISA applied to all domestic wiretaps. FISA was adopted in response to surveillence abuses during the Nixon presidency when we later discovered that the FBI was using surveillence to target certain domestic interest groups that Nixon and the FBI didn’t like. It had nothing to do with the Cold War.
I’m not attempting to debate the merits of the 2007 PAA or the NSA program Bush adopted prior to the 2007 PAA. I’m simply trying to correct AJ’s assumption that this particular Court decision vindicates Bush’s entire NSA program in place since 2001. It doesn’t – it only addresses the constitutionality of the 2007 PAA. You don’t need to be a lawyer to understand that from reading the first page of the Court’s decision. Really folks, it is not that hard of a concept and should be relatively easy to understand. I think your desire to shout down and argue with a “liberal” at every opportunity is clouding your ability to read the Court’s decision for what it is.
conguy, I have some recommendations for you
1. Take some basic reading comprehension courses
2. After completing those, take some basic law courses
3. After completing those, go back to law school. be sure it is an accredited one this time.
4. During your studies there, take some technical writing courses.
5. then come back to Strata-sphere.
Your statements above are so full of holes, a judge would send you home to get prepared.
and to top it all off, on a non-legal issue, you said:
Oh my god, if the MSM said it was so then it must be so. Everyone on this site, in particular, AJ, views the MSM as the word of GOD! Don’t rely on the MSM
Only libs are guided by MSM, none of the conservatives and/or moderates on this site believe very much of anything if it is sourced from the MSM.
Geez, you must not have gotten much sleep. Who’s torturing you? You must be suffering from sleep deprivation?
AJ, might I suggest reading about “stare decisis”? Perhaps then you might have a better understanding of the concept of precedent. You ought to be careful about “teaching” anyone about a topic that you are not familiar with.
The precedent that was set today is that the legislature has the authority to write laws which allow warrantless surveillance of Americans’ international communications. The salient point is that the _legislature_ has the authority to write such laws. No precedent has been set regarding whether the executive has “inherent constitutional authority” to ignore specific statutes enacted by the legislature or whether Congress has the constitutional power to _limit_ the executive.
If you disagree, please provide a reference to a page in the ruling which explicitly sets the precedent for the executive’s “inherent constitutional authority”.
By the way, if precedent is so important to you, then you should look into the precedent set by District Court Judge Anna Diggs Taylor regarding Stellar Wind, aka the Terrorist Surveillance Program. I would also suggest investigating the Supreme Court’s Hamdan and Boumediene rulings to see what the precedent is regarding the power of the executive.
Redteam:
“Geez, you must not have gotten much sleep. Who’s torturing you? You must be suffering from sleep deprivation?”
Ah – still insulting and mocking our American POWs, I see. Very classy.
Have you no shame?
Redteam,
“Your statements above are so full of holes, a judge would send you home to get prepared.”
Do you know how to tell when someone is clueless but they want everyone else to think they are knowledgable? Every one of their responses in a debate is “I’m right and your an idiot!”. No response to the substantive issue or explanation as to why your right or the other guys an idiot, just “I’m right and your an idiot”. Not realizing, of course, that everyone else understands that if you actually knew what you were talking about you would obviously be able to explain WHY you are right. It is so transparent it is almost painful to watch. So yeah, I understand that you don’t believe anything I say because I’m a “liberal” in your mind – sadly you rarely seem to actually understand why you don’t believe it!
“and to top it all off, on a non-legal issue, you said:
Oh my god, if the MSM said it was so then it must be so. Everyone on this site, in particular, AJ, views the MSM as the word of GOD! Don’t rely on the MSM.
Only libs are guided by MSM, none of the conservatives and/or moderates on this site believe very much of anything if it is sourced from the MSM.”
Let me introduce you to a concept – its called “sarcasm”. Sarcasm is stating the opposite of an intended meaning typically to sneeringly, slyly, jest or mock a person, situation or thing. Look up the definition. Using sarcasm is most satisfying when the person or group you are mocking doesn’t realize it is sarcasm and actually responds to the statement as though it was intended as a serious comment. Too funny.
Thanks for all of the laughs today Redteam.
If Conman were a lawyer he would proof-read and spell better.
He wrote, ” “I’m right and your an idiot!†[you’re]
He wrote “capitulize” instead of capitalize.
He wrote “presedent” instead of precedent.
He wrote “contraversy” instead of controversy.
He wrote, “Bush’s NSA program presents entirely differenty [different] legal /factual issues.”
He wrote, “Let me try and [to] simplify it for you so you can understand.”
Lawyers don’t make those errors.
Snapple:
You’ve obviously never worked for a lawyer. My wife was a paralegal, and never stopped complaining about how the lawyers she worked with could get paid in the high 6 figures, but couldn’t spell or use proper grammer to save their lives.
Obama may create “classified loophole†for enhanced interrogations
http://hotair.com/archives/2009/01/16/shhh-obama-may-create-classified-loophole-for-enhanced-interrogations/
My prediction….
Obama will use the same tools Bush established and used because they were legal and they worked. However, he will glow with a halo and say he isn’t…..and everyone will call it change.