Refutations of Byron York's 'It's Legal' (NSA\FISA) Article Welcomed...

[WillyT]

Sorry about even referring to Byron York and the National Review, but...

I have a Kool-Aid drinkin buddy who keeps waving this article under my nose saying IT PROVES the President had wiretap authority and didn't have to go to the FISA court.

<snip>

"We're here today," Theodore Olson said as the secret In re: Sealed Case court argument began, "because the Foreign Intelligence Surveillance Court's May 17th order . . . has perpetuated a serious and increasingly destructive barrier which has hamstrung the president and his subordinates" in their work to protect "the United States and its citizens from attack and from international terrorism." The FISA Court's ruling, Olson continued, was "inexplicable."

Olson and the judges went back and forth over the history of the wall. Nobody really knew how it first came into being; the judges later said its origin was "shrouded in historical mist." They went over what Congress intended when it passed the Patriot Act. And they went over the question of whether the FISA Court had the power to tell the president how to conduct investigations.

The answer was no, Olson said. "To the extent that the FISA Court is purporting to reorganize the executive branch, the so-called chaperone function, I don't think Congress could constitutionally tell the executive or the attorney general that he could not talk to this subordinate without involving that subordinate," Olson told the judges, "and I certainly don't think the court can do so." The entire session lasted just a few hours, and the Justice Department waited for the Court of Review's ruling. When it came, in November 2002, it was a slam-dunk win for the government.

In its opinion, the Court of Review said the FISA Court had, in effect, attempted to unilaterally impose the old 1995 rules. "In doing so, the FISA Court erred," the ruling read. "It did not provide any constitutional basis for its action — we think there is none — and misconstrued the main statutory provision on which it relied." The FISA Court, according to the ruling, "refus to consider the legal significance of the Patriot Act's crucial amendments" and "may well have exceeded the constitutional bounds" governing the courts by asserting "authority to govern the internal organization and investigative procedures of the Department of Justice."

And then the Court of Review did one more thing, something that has repercussions in today's surveillance controversy. Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the "inherent authority" under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else. Referring to an earlier case, known as Truong, which dealt with surveillance before FISA was passed, the Court of Review wrote: "The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . 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."

<snip>

More: http://www.nationalreview.com/york/york200603150741.asp

Is this familiar to anyone here at DU? Is this a mis-direction play by York to get us off lookin into the legalistic weeds? And is York referring to foreign wiretaps, or domestic???

Somebody straighten me out here; I'm a little hungover this morn.

:hangover:

[Kagemusha]

1. If the details are still secret, how does York know about this in such det

I'm wondering that.

[WillyT]

2. Good Question !

:shrug:

[Gabi Hayes]

3. how's this, for starters?

Under FISA, it is a criminal offense to eavesdrop on Americans without the oversight and approval of the FISA court. Section 1809 of FISA expressly provides that " person is guilty of an offense if he intentionally - (1) engages in electronic surveillance under color of law except as authorized by statute. . . ." And Section 2511(2)(f) provides that FISA "shall be the exclusive means by which electronic surveillance . . . may be conducted." Thus, a person has broken the law if -- as the President admits he did -- he orders eavesdropping on Americans without complying with the warrant requirements of the statute. Period. The Administration admits that it did just that -- that the President ordered exactly the warrantless eavesdropping which FISA makes it a criminal offense to engage in. The Administration does not deny this fact. They admit that the eavesdropping they engaged in is exactly the eavesdropping for which FISA requires judicial approval, but defend themselves only by claiming that they had the legal right to engage in this eavesdropping without complying with the law. Here is Alberto Gonzales making this precise admission at his December 19, 2005 press briefing with Gen. Hayden:



Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.


That is Gonzales admitting that the warrantless eavesdropping they engaged in is the type for which FISA requires judicial approval. By definition, there is no investigation needed to determine whether the Administration engaged in warrantless eavesdropping prohibited by FISA because that fact is not in dispute. In defending itself, the Administration is offering only legal arguments -- not factual disputes -- as to why it had the right to eavesdrop without complying with the law (namely, that the President has inherent authority to eavesdrop even if the law prohibits it, and that Congress gave him implicit permission to eavesdropping outside of FISA when it enacted the AUMF). But the Administration is not denying -- and has never denied -- the fact that it engaged in the very warrantless eavesdropping covered by FISA.

Thus, no investigation could even conceivably shed further light on the question of whether the President broke the law. We know he did that. The sole question which Senators have to answer is what they think the consequences ought to be, if any, for a President to order eavesdropping on Americans citizens which Americans, through their Congress, prohibited by law. An investigation cannot answer the question as to whether U.S. Senators ought to take a stand against deliberate and ongoing lawbreaking by a President. Only U.S. Senators can answer that question, and they already have all the facts that are relevant to that question already before them. Claiming that they need further "investigation" before taking a position is nothing short of an abdication of their responsibilities, an obvious tactic for avoiding the question of whether they oppose lawbreaking by the President.

http://www.huffingtonpost.com/glenn-greenwald/mythmaking-and-excusema_b_17689.html

tell your friend they've already ADMITTED they've done it, and it's on the face illegal, cause they HAVE to go before the FISA court before they do ANY sort of wiretapping. there's no getting around that; that was exactly why the court was established in the first place, to make sure there was court appoval, and to make said approal as easy as possible. Given such basically non-existent initial constraints, the junta STILL failed to go before the courts, and now tries to justify not doing so, using the most tortured logic imaginable

[WillyT]

6. So... That 'Court Of Review' Has No Standing ???

Sorry... I'm so confused now. Just what authority does it have, and does it trump everything else, as is implied in York's article?

And thank you for your efforts to unscramble my brain.

:yourock:

[lyonn]

4. There was an interesting group of attorneys & judges

at that "hearing." Notice the Judges Silberman, Leavy and Guy were the FISA Court's judges.

From the Article:

"In early September 2002, just before the first anniversary of the September 11 terrorist attacks, a group of lawyers gathered in a heavily protected, windowless room in the Department of Justice building in Washington. There were three federal appeals-court judges, Laurence Silberman, Edward Leavy, and Ralph Guy. There was Theodore Olson, the U.S. solicitor general. There was Larry Thompson, the deputy attorney general. And there was John Yoo, the Justice official who had closely studied questions of war powers and presidential authority. Rounding out the group were a few other department staffers, one official from the FBI, and David Addington, Vice President Cheney's top lawyer.

The purpose of the meeting was to argue a case whose details remain so classified that they are known by only a few people, but whose outcome, a decision known as In re: Sealed Case, has become one of the key documents in the hottest argument in Washington today: the fight over what President Bush calls the "terrorist surveillance" of persons with known al-Qaeda connections, and what the president's opponents call "domestic spying."

Looks like a rigged jury to me. After 12 years of repub. appointed judges filling our courts and capitol bldg. this could be seen as a "hanging judge" system of justice.

[wellst0nev0ter]

5. The Bushies Had Already Refuted Themselves

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/25/AR2006012502270.html

White House Dismissed '02 Surveillance Proposal

By Dan Eggen
Washington Post Staff Writer
Thursday, January 26, 2006; Page A04

The Bush administration rejected a 2002 Senate proposal that would have made it easier for FBI agents to obtain surveillance warrants in terrorism cases, concluding that the system was working well and that it would likely be unconstitutional to lower the legal standard.

The proposed legislation by Sen. Mike DeWine (R-Ohio) would have allowed the FBI to obtain surveillance warrants for non-U.S. citizens if they had a "reasonable suspicion" they were connected to terrorism -- a lower standard than the "probable cause" requirement in the statute that governs the warrants.

The administration has contended that it launched a secret program of warrantless domestic eavesdropping by the National Security Agency in part because of the time it takes to obtain such secret warrants from federal judges under the Foreign Intelligence Surveillance Act (FISA). <snip>