heres the exact text I posted on MySpace Democrat Group, which I'm a regular of (and public enemy #1 to Myspace Hawkish Republicans it seems haha). Anyways, I've dealt with the 2002 UNITED STATES FOREIGN INTELLIGENCE SURVEILLANCE COURT OF REVIEW decisions that republicans are taking to say that Bush has unchecked powers to do as he pleases. I read this decision as well as Katz V. United States, which was actually overturned because of no warrant and had many of the member justice's ruling AGAINST unchecked power and warrantless searches. So, I think I'm reading this one correctly (poli sci major and hoping to go to law school) in what I assumed at the end of the post.
so heres my actual post
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funny, I was just reading the actual 2002 report on that, and it was debunked on thinkprogress also.
The 2002 Appeals Court Myth
A column in this morning’s Chicago Tribune by John Schmidt argues that Bush’s secret domestic surveillance program was legal. (Byron York posted a portion of the piece on the National Review website under the title “READ THIS IMPORTANT ARTICLE“) It features this selectively edited excerpt from a 2002 decision by the FISA appeals court:
“All the … courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence…We take for granted that the president does have that authority.”
Actually, the quote doesn’t begin with the word “all”; it begins “The Truong court, as did all the other courts…” The Truong case was decided in 1978 — the same year FISA was passed — and did not deal with the FISA law. As the court noted right before the excerpt, “Truong dealt with a pre-FISA surveillance… it had no occasion to consider the application of the statute…” The Truong case dealt with the President’s power in the absence of a congressional statute.
This is critically important because FISA specifically prohibits the warrantless domestic searches that the President authorized. As Chief Justice Roberts explained in his recent confirmation hearings, referrencing the landmark Supreme Court case Youngstown Sheet, “where the president is acting contrary to congressional authority…the president’s authority is at its lowest ebb.”
The article also conveniently omits the two sentences after the excerpt:
It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. The question before us is the reverse…
All the court is saying here is that whether FISA imposes limits on the President’s authority is not an issue in this case. It was an issue in the Troung case but, as the court explains, “
he question before us is the reverse.”
http://thinkprogress.org/2005/12/21/appeals-court-myth
the Truong case was argued before FISA was established, it wasn't settled law then. the 2002 review was affirming that Truong case was done properly with law at the time, however the 2002 decision also pointed out that the intent of Congress authorizing the Patriot Act wasn't to give unchecked executive powers, but make it easier even still to obtain warrants through FISA and reaffirmed that FISA wasn't being too restrictive on the pursuit of this.
in actuality, heres what the COMPLETE message from that decision was
We reiterate that Truong dealt with a pre-FISA surveillance based on the President’s constitutional responsibility to conduct the foreign affairs of the United States. 629 F.2d at 914. Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n.4, it had no occasion to consider the application of the statute carefully. 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.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html
the 2002 appeals ruling was to strengthen FISA, as a SECRET court mind you, to give the ability with relative ease to pursue warrants against targets, not locations. In pursuing an "agent of foreign powers" it didn't become the LOCATION that was the target, it became the PERSON. so they could essentially tap a person, like listening in on a conversation with a phone booth, which wasn't legal with what happened in Katz v. United States, if they have a proper warrant THROUGH FISA.
so this is where all the editorial pages have been falling apart and legal professors have been hammering about it, because once you read the full decision and not an exerpt, you see that this decision was two fold
to deal with the fact that the Truong case dealt with pre-FISA laws, and that this 2002 report was dealing with post-FISA laws, in which FISA has become the executive branch's way of dealing with foreign intelligence in a timely manner, hence the 72 hour retroactive timeline to seek a warrant.
bush never followed any of these.
in actuality, citing the 2002 case STRENGTHENS my argument, much like when Martin from Pro-Bush cited Katz v. United States, because both arguments UPHOLD the necessity of a warrant, even one given on the flimsiest basis, and a FISA warrant sought by the executive for foreign intelligence, which FISA was specifically created, would meet constitutionality procedures.
the 2002 case was actually to help CLEAR warrants, not to undermine warrants.
the whole contention of that case was that FISA warrants were clear by the 4th amendment and were meeting "minimum requirement" standards to be considered lawful warrants in a court of law.
in fact, reading this more, now I see why so many law professors are pissed because FISA was CREATED to be the tools to support a Presidential power to search and seizure of foreign intelligence and terrorism, and that Bush didn't even meet THAT minimum requirement, let alone getting a full on warrant from an open court magistrate.
if anything, this proves how far they went in breaking the law by not even going into FISA, which had had its rules relaxed by the Patriot Act even further to allow prosecution.
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furthermore, I noticed that in reference to Truong and how it references "unchecked powers" in this section
?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.26 "
26 Although the plurality opinion in Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (en banc), cert. denied, 425 U.S. 944 (1976), suggested the contrary in dicta, it did not decide the issue.
that was the passage and footnote, but the language suggests that the decision was upholding all arguments of Truong AND BEFOREHAND when FISA became law, in which FISA, as I pointed out, and the decision points out, becomes the mechanism for the President to enact the power to obtain searches in the war on terrorism, and meet necessary requirements to obtain even a bare minimum of warrants when prosecuting terrorist activity, especially pertaining to US citizens and those in collusion with foreign powers. Pre-FISA thats not addressed, nor is the exact issues of international terrorism and electronic surveillance, in which FISA became the legal mechanism.
so yeah, thats been my analysis on the subject on it and just I'm guess I've read the decision correctly, which would mean that not only did Bush NOT follow 4th amendment requirements, didn't even meet the bare minimum requirements of his own legal mechanism as the Executive, FISA, to conduct searches, especially once you remember that the FISA courts are actually a secret court and not an open magistrate.
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But damn, it is so long overdue. 
