Boston Globe: Past rulings don't support Bush's use of war powers

[Eugene]

Past rulings don't support Bush's use of war powers

By Charlie Savage, Globe Staff | December 19, 2005

WASHINGTON -- President Bush's assertion that his powers as commander in chief allowed him
to authorize wiretaps on Americans despite a 1978 wiretapping law has little support in past
Supreme Court rulings.

Congress enacted the law requiring investigators to seek judicial warrants before wiretapping
citizens in response to revelations that former President Richard Nixon had used the FBI to spy
on his political enemies.

<snip>

"The authorization I gave the National Security Agency after September the 11th . . . is fully
consistent with my constitutional responsibilities and authorities," Bush said in his weekly radio
address on Saturday.

But past Supreme Court rulings have taken a more limited view of presidential power in wartime.

"The president is taking an unusually expansive view of what the Constitution allows him to do
in disregard of Congress, and he is probably wrong," said Susan Low Bloch, a professor of
constitutional law at Georgetown University. "His claim of power is too extreme."

<snip>

Full article: http://www.boston.com/news/nation/washington/articles/2005/12/19/past_rulings_dont_support_bushs_use_of_war_powers
(Free reg. required)

[dutchdemocrat]

1. How does this fit in... I am still trying to figure out.

Something I am trying to find out... it was posted on another thread. How does this fit in to the bigger picture?

http://www.aclu.org//privacy/spying/15189prs20021118.html

In First-Ever Ruling, Secret Appeals Court Allows Expanded Government Spying on U.S. Citizens (11/18/2002)

FOR IMMEDIATE RELEASE

WASHINGTON - Ruling for the first time in its history, the ultra-secret Foreign Intelligence Surveillance Court of Review today gave the green light to a Justice Department bid to broadly expand its powers to spy on U.S. citizens.

"We are deeply disappointed with the decision, which suggests that this special court exists only to rubberstamp government applications for intrusive surveillance warrants," said Ann Beeson, litigation director of the Technology and Liberty Program of the American Civil Liberties Union.

"As of today," she said, "the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices."

At issue is whether the Constitution and the USA PATRIOT Act adopted by Congress after the Sept. 11 terrorist attacks permit the government to use looser foreign intelligence standards to conduct criminal investigations in the United States.

Last May, in a historic first, the Foreign Intelligence Surveillance Act court (FISA) made public a unanimous decision rejecting the government's bid for expanded spying powers. After the Justice Department appealed, the ACLU was granted permission to file a friend-of-the-court brief in the appeals court, together with the Center for Democracy and Technology, the Center for National Security Studies, the Electronic Privacy Information Center, the Electronic Frontier Foundation, and the Open Society Institute.

The ACLU and its coalition partners are examining today's decision and considering a number of options, including requesting an appeal to the Supreme Court and asking Congress to clarify through legislation that it did not authorize the Justice Department to use FISA's looser surveillance standards in ordinary criminal cases.

"This is a major Constitutional decision that will affect every American's privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court," Beeson said. "Hearing a one-sided argument and doing so in secret goes against the traditions of fairness and open government that have been the hallmark of our democracy," she added.

The FISA court and the Court of Review were created under a law passed by Congress in 1978, which authorizes government wiretap requests in foreign intelligence investigations. Under these procedures, all hearings and decisions are conducted in secret.

Although the ACLU and its coalition partners were allowed to file a friend-of-the-court brief in support of the lower court ruling, they were not allowed to participate in the oral argument before the Review Court that resulted in today's decision, and they are not automatically entitled to submit an appeal to the U.S. Supreme Court.

Today's decision comes on the heels of a White House announcement of a new system being developed at the Pentagon that would be able to track every American's activities. The so-called "Total Information Awareness" program will create -- according to Pentagon officials -- the infrastructure for the most extensive electronic surveillance system in history. Conservative New York Times columnist William Safire has dubbed the program "a supersnoop's dream."

The FISC Review Court is a special three-judge panel appointed by Chief Justice William H. Rehnquist in accordance with provisions of the Foreign Intelligence Surveillance Act. The judges are: Hon. Laurence H. Silberman of the U.S. Court of Appeals for the District of Columbia Circuit; Hon. Edward Leavy, U.S. Court of Appeals for the Ninth Circuit and Hon. Ralph B. Guy, Jr., U.S. Court of Appeals for the Sixth Circuit.

The court's decision is online at http://www.cadc.uscourts.gov/common/newsroom/02-001.pdf

A feature with documents related to the case is online at http://archive.aclu.org/issues/privacy/FISA_feature.htm...

An ACLU news release on the Total Information Awareness program is online at /safefree/general/17109prs20021114.html

[wake.up.america]

2. This is far-fetched but here goes. Clinton lies about sex...

the Republicans, say its not about sex, it is the fact he lied about it, breaking the law.

Now, Bush breaks the law, which he claims is an effort to protect Americans.

Whether the wire taps are productive is not the point. The fact is that he broke the law.

[Eugene]

3. Bush went beyond this.

FISA is a secret court and a permissive court, but it is still a court
that issues warrants. Even a secret wiretap needs court approval.
Bush asserts that his wartime powers allow him to bypass the courts altogether.

The ruling gave Bush sweeping power, but that wasn't enough for him.

[dutchdemocrat]

5. Thank you

That's what I wanted to know. Basically this ruling states that the laws were loosened but it wasn't a free-for-all no-court-order do-what-I-want because-I-am-king deal.

thanks.

[Freedom_from_Chains]

4. How this fits in is,

That a Constitutional Republic, which America has always been, is now over.