There are a number of talking point being doled out by the Repubs. They include:
-United States v. Truong Dinh Hung, 4th Cir. 1980
-Clintons Executive Order
-Carters Executive Order
-FISA Law
-Clintons EO deals with FOREIGN PHYSICAL SEARCHES.
And has the same mandate as the Carter EO.
-Bushs EO deals with domestic wiretapping.
-Carters EO deal with FOREIGN wiretapping, and mandates that the AG can wiretap --
"to acquire foreign
intelligence information without a court order, but only if the
Attorney General makes the certifications required by that Section"
SO after 72 hrs the AG has to apply for a court order in the appropriate court. RIGHT?
Link to Carters EO-
http://www.fas.org/irp/offdocs/eo12139.htm Link to CLintons EO-
http://www.fas.org/irp/offdocs/eo/eo-12949.htm Carters E.O.--What is the key here is the Certification by the AG:
------------------------------------------
By the authority vested in me as President by Sections 102 and
104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1802 and 1804), in order to provide as set forth in that Act (this
chapter) for the authorization of electronic surveillance for
foreign intelligence purposes,
it is hereby ordered as follows: 1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1802(a)),
the Attorney General
is authorized to approve electronic surveillance to acquire foreign
intelligence information without a court order, but only if the
Attorney General makes the certifications required by that Section. 1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act
of 1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to
approve applications to the court having jurisdiction under Section
103 of that Act (50 U.S.C. 1803) to obtain orders for electronic
surveillance} for the purpose of obtaining foreign intelligence
information.
1-103. Pursuant to Section 104(a)(7) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)), the following
officials, each of whom is employed in the area of national
security or defense, is designated to make the certifications
required by Section 104(a)(7) of the Act in support of applications
to conduct electronic surveillance:
(a) Secretary of State.
(b) Secretary of Defense.
(c) Director of Central Intelligence.
(d) Director of the Federal Bureau of Investigation.
(e) Deputy Secretary of State.
(f) Deputy Secretary of Defense.
(g) Deputy Director of Central Intelligence.
None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above
certifications, unless that official has been appointed by the
President with the advice and consent of the Senate.
1-104. Section 2-202 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any electronic surveillance, as defined
in the Foreign Intelligence Surveillance Act of 1978, shall be
conducted in accordance with that Act as well as this Order.''.
1-105. Section 2-203 of Executive Order No. 12036 (set out under
section 401 of this title) is amended by inserting the following at
the end of that section: ''Any monitoring which constitutes
electronic surveillance as defined in the Foreign Intelligence
Surveillance Act of 1978 shall be conducted in accordance with that
Act as well as this Order.''.
Jimmy Carter.
--------------------------
Shortened for your reading pleasure:
it is hereby ordered as follows: the Attorney General is authorized to
approve applications to the court having jurisdiction under Section
103 of that Act (50 U.S.C. 1803) to obtain orders for electronic surveillance ------------------------------------------
Additionally-- United States v. Truong Dinh Hung, 4th Cir. 1980
here-
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html This is from the motion filed by Ted Olson:
UNITED STATES FOREIGN INTELLIGENCE
SURVEILLANCE COURT OF REVIEW
_______________________
Argued September 9, 2002 Decided November 18, 2002
In re: Sealed Case No. 02-001
........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. 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.......... We, therefore, believe firmly........ that FISA as amended is constitutional because the surveillances it authorizes are reasonable.
--------------------
See the section in bold, above? This is being quoted as justification. It can be used as such. This is from a
Motion, not a ruling. Here is the ruling, this is what debunks the repub talkng point:
From The presiding judges ruling:
http://www.fas.org/irp/agency/doj/fisa/fisc051702.html "These modifications are intended to bring the minimization procedures into accord with the language used in the FISA, and reinstate the bright line used in the 1995 procedures, on which the Court has relied. The purpose of minimization procedures as defined in the Act, is not to amend the statute, but to protect the privacy of Americans in these highly intrusive surveillances and searches, "consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information."
A separate order shall issue this date.
All seven judges of the Court concur in the Corrected and Amended Memorandum Opinion.
ROYCE C. LAMBERTH
Presiding Judge
DATE: 5-17-02 6:40 p.m. "
-----------------------
NOWHERE in the ruling does it quote or cite any language from the Motion as being correct, in fact many parts of the Motion are refuted in the Ruling. Further more the United States v. Truong case was in front of the FISA review court, FISA does not rule Constitional Issues. IT rules on FISA issues.
Below is a Supreme Court case that smokes the United States v. Truong argument.--
YOUNGSTOWN SHEET & TUBE CO. V. SAWYER
Justice Black delivered the opinion of the Court.
We are asked to decide whether the President ... was acting within his constitutional power when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. The mill owners argued that the President's order amounts to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President. The Government's position is that the order was made on findings of the President that his action was necessary to avert a national catastrophe which would inevitably result from a stoppage of steel production, and that in meeting this grave emergency the President was acting within the aggregate of his constitutional powers as the Nation's Chief Executive and the Commander in Chief of the Armed Forces of the United States....
The President's power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself. There is no statute that expressly authorizes the President to take possession of property as he did here. Nor is there any act of Congress to which our attention has been directed from which such a power can fairly be implied. There are two statutes which do authorize the President to take both personal and real property under certain conditions....However, the Government admits that these conditions were not met and that the President's order was not rooted in either of the statutes....
Moreover, the use of the seizures technique to solve labor disputes in order to prevent work stoppages was not only unauthorized by any congressional enactment; prior to this controversy, Congress had refused to adopt that method of settling labor disputes. When the Taft-Hartley Act was under consideration in 1947, Congress rejected an amendment which would have authorized such governmental seizures in cases of emergency. Instead, the plan sought to bring about settlements by use of the customary devices of mediation, conciliation, investigations by boards of inquiry, and public reports. In some instances temporary injunctions were authorized to provide cooling-off periods. All this failing, unions were left free to strike....
It is clear that if the president had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution.
----------------
edit: note the reliance on article II, see that Sly?
---------------------
Particular reliance is placed on provisions in Article II} which say that "The executive Power shall be vested in a President"; that "he shall take Care that the Laws be faithfully executed"; and that he "shall be Commander in Chief of the Army and Navy of the United States."
The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production.This is a job for the Nation's lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the law-making process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute....
The President's order does not direct that a congressional policy be executed in a manner prescribed by Congress -- it directs that a presidential policy be executed in a manner prescribed by the President. The preamble of the order itself, like that of many statutes, sets out reasons why the President believes certain policies should be adopted, proclaims these policies as rules of conduct to be followed, and again, like a statute, authorizes a government official to promulgate additional rules and regulations consistent with the policy proclaimed and needed to carry that policy into execution. The power of Congress to adopt such public policies as those proclaimed by the order is beyond question. It can authorize the taking of private property for public use. It can make laws regulating the relationships between employers and employees, prescribing rules designed to settle labor disputes, and fixing wages and working conditions in certain fields of our economy. The Constitution does not subject this lawmaking power of Congress to presidential or military supervision or control.
It is said that other Presidents without congressional authority have taken possession of private business enterprises in order to settle labor disputes. But even if this be true, Congress has not thereby lost its exclusive constitutional authority to make laws necessary and proper to carry out the powers vested by the Constitution "in the Government of the United States, or any Department or Officer thereof."
The Founders of this Nation entrusted the lawmaking power to the Congress alone in both good and bad times. It would do no good to recall the historical events, the fears of power and the hopes for freedom that lay behind their choice. Such a review would but confirm our holding that this seizure order cannot stand.
Source: 343 U.S. 579 (1952).
---------------
In other words, The President is the Commander in Chief of the Armed Forces, not the Commander in Chief of the Armed Forces, the country and its people. Additionally Many repubs will cite the 2nd Ammendment to the Constitution, Wrong- see the bolded text above, where below the bolded text explains the refutation of the Argument.
Here is the FISA law-it can be cross referenced with the Executive orders-- so things make more sense.
http://www.law.cornell.edu/uscode/html/uscode50/usc_sup_01_50_10_36_20_I.htmlNeed any more- PM me...
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