Attorney General Gonzales has given us the “benefit of his wisdom”. On the Today Show with Katie Couric. Gonzales trotted out the “inherent authority” excuse. No surprise. then he also said that the President also was authorized by Congress to commit this act. Specifically, he said that Bush was granted this power under the authorization for war. I presume he was talking about the Authorization for War passed on September 14, 2001. Was Gonzales referring to the fact Congress gave the President the authority to use “all necessary and appropriate force” to combat terrorism? But the word “force” there is invoked with respect to the use of military force. Congress added the phrase “necessary and appropriate” precisely because it intended to restrict the President to the confines of the law. So the “resolved” clause is out. What other aspect of the authorization gives the President the right to ignore the 4th Amendment? “Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it resolved…” Any “whereas” clauses have no binding legal effect. He says this clause recognized that the President has unfettered power under the Constitution to skirt the law and order warrantless spying. But the Constitution mandates that the President preserve and defend the Constitution–which includes the Fourth Amendment and its protection against warrantless searches and seizures. But never mind that, We have been already “educated” that the Fourth Amendment is irrelevant by non other than our own esteemed legal expert. It seems that the courts disagree as previously shown in Katz" and as shown below…
Sen. Russell Feingold (D-Wis) responded to Gonzales’ comments in an NBC interview this morning. “This is just an outrageous power grab,” he said. “Nobody, nobody, thought when we passed a resolution to invade Afghanistan and to fight the war on terror, including myself who voted for it, thought that this was an authorization to allow a wiretapping against the law of the United States.” There’s two ways you can do this kind of wiretapping under our law. One is through the criminal code, Title III; the other is through the Foreign Intelligence Surveillance Act. That’s it. That’s the only way you can do it. You can’t make up a law and deriving it from the Afghanistan resolution. “The president has, I think, made up a law that we never passed,” said Sen. Russell Feingold (D-Wis.).
Here, for those who continue to ignore it, is Katz.
In a 1972 case, the Supremes held that even in the face of great harm, the President is not allowed to authorize warrantless surveillance. U.S. v. U.S. District Court, 407 US 297
Findlaw has some interesting annotations for the 4th Amendment. The courts seem to differentiate between government spying on citizens versus spying on foreign nationals.
The courts have fairly consistently stated that for spying on citizens, they must have a warrant..
I already noted the findings from Katz. No warrant = no spying. They make no exceptions for any "what if he is calling cousin Ahmed in Lower Slobbovia.
Below is a very interesting interpretation from a Glenn Greenwald, who is a lawyer. His reading agrees with mine. He also has some comments on the tactic of selectively quoting parts of the law, while deliberatelt excluding other equally inportant parts.
http://glenngreenwald.blogspot.com/2005/12/purposely-misquoting-fisa-to-defend.html
Glenn Greenwald
[QUOTE=Greenwald]
Defenders of the Bush Administration are resorting to outright distortions and deliberate falsehoods about the Foreign Intelligence Security Act (FISA) in order to argue that the Administration’s warrantless eavesdropping on U.S. citizens complies with the mandates of that statute. … We’re not talking here about an unconvincing or erroneous legal argument. This is something different entirely – it is an argument based upon a fundamental misquoting of the law in question designed to make illegal behavior look legal. …
FISA is a relatively straightforward statute and the issue here is a simple one. The statute begins with § 1801, which in Section(a) defines various types of “foreign powers” on whom the Government can eavesdrop.
Under Section(a), subsections (1)-(3) essentially refer to foreign governments or groups expressly controlled by a foreign government.
Subsections (1)-(3) do not include non-governmental terrorist organizations, such as Al Qaeda. Such groups – i.e., terrorists organizations – are referenced in subsection (4) only.
The next section of FISA – § 1802 – allows warrantless eavesdropping for up to one year (provided other procedures are complied with). But it does so only for “electronic surveillance [that] is solely directed at communications” among foreign powers referred to by subsections (1)-(3) – but not subsection (4). Thus, this authorization to conduct warrantless searches is expressly limited to communications among subsection (1)-(3) foreign governments but does not even arguably extend to subsection (4) terrorist groups.
To argue this, he purports to quote the authorization language of § 1802, but omits from his quotation the part of the statute which entirely negates his argument – namely, the part which limits this authorization to subsections (1)-(3), but excludes subsection (4). …
When pretending to quote the statute, Al Maviva simply omitted the language making clear that the warrantless authorization applies only to foreign powers referenced in subsections (A)(1)-(3), and not to terrorist organizations, referenced in (A)(4). …
The only way to argue that the Bush Administration’s warrantless eavesdropping on suspected terrorists, including U.S. citizens, complied with the law is by misquoting the law in order to change its requirements.[/QUOTE]
Now Bricker, does this look familiar? Were you also using this tactic?
Holy shit. I’m not a lawyer, but I can read. If you take the entire FISA section and read it in its entirety, instead of slicing out only what you want, a whole different picture emerges. I expected a hell of a lot better than that.
