From: "Gary Britt" 

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No.  Its just one of many reasons why the President's actions were = proper
and legal.  Did you read the stuff I put up on another thread?  = I'll
repeat it below just after this little teaser from the end:

what "rule" is being "bent?" Can anyone name one other
war in which the = FBI had to get a warrant to monitor a US citizen calling
the enemy in a = foreign country? If a German spy in Chicago was calling
Himmler in 1943, = do you think J. Edgar Hoover would have sought a
warrant? Would evidence = have been excluded? No --- and the spy would have
been caught and = executed after a secret trial in a military court. See EX
PARTE QUIRIN, = 317 US 1 (1942)(unanimous).=20


NSA Surveillance Order By The President Is Perfectly Legal.

Please look at this research I posted at ProfessorBainbridge.com:

To Alan Meese's excellent posts and questions I would point readers to =
the Supreme Court's many decisions in the "Special Needs"
category where = various kinds of warrantless searches are approved as
perfectly = constitutional because they are reasonable in balancing the
special = needs of government with the constitutional protections for
individual = privacy and 4th amendment protections.  These special needs
cases were = summarized by the US Foreign Intelligence Surveillance Court
Of Review = in its 11/18/02 Opinion as follows:

<<<<<<<<<<<<<<<<<<<<<<<<

Supreme Court's Special Needs Cases

The distinction between ordinary criminal prosecutions and extraordinary =
situations underlies the Supreme Court's approval of entirely = warrantless
and even suspicion less searches that are designed to serve = the
government's =93special needs, beyond the normal need for law =
enforcement.=94 Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 =
(1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal =
quotation marks omitted)) (random drug-testing of student athletes).32 =
Apprehending drunk drivers and securing the border constitute such = unique
interests beyond ordinary, general law enforcement. Id. at 654 = (citing
Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990), and = United
States v. Martinez- Fuerte, 428 U.S. 543 (1976)).

A recent case, City of Indianapolis v. Edmond, 531 U.S. 32 (2000), is =
relied on by both the government and amici. In that case, the Court held =
that a highway check point designed to catch drug dealers did not fit =
within its special needs exception because the government's =93primary =
purpose=94 was merely =93to uncover evidence of ordinary criminal =
wrongdoing.=94 Id. at 41-42. The Court rejected the government's = argument
that the =93severe and intractable nature of the drug = problem=94 was
sufficient justification for such a dragnet seizure = lacking any
individualized suspicion. Id. at 42. Amici particularly rely = on the
Court's statement that =93the gravity of the threat alone cannot = be
dispositive of questions concerning what means law enforcement = officers
may employ to pursue a given purpose.=94 Id.

But by =93purpose=94 the Court makes clear it was referring not to a =
subjective intent, which is not relevant in ordinary Fourth Amendment =
probable cause analysis, but rather to a programmatic purpose. The Court =
distinguished the prior check point cases Martinez-Fuerte (involving =
checkpoints less than 100 miles from the Mexican border) and Sitz =
(checkpoints to detect intoxicated motorists) on the ground that the =
former involved the government's =93longstanding concern for the =
protection of the integrity of the border,=94 id. at 38 (quoting United =
States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)), and the = latter
was =93aimed at reducing the immediate hazard posed by the = presence of
drunk drivers on the highways.=94 Id. at 39. The Court = emphasized that it
was decidedly not drawing a distinction between = suspicion less seizures
with a =93non-law-enforcement primary purpose=94 = and those designed for
law enforcement. Id. at 44 n.1. Rather, the Court = distinguished general
crime control programs and those that have another = particular purpose,
such as protection of citizens against special = hazards or protection of
our borders. The Court specifically = acknowledged that an appropriately
tailored road block could be used =
=93to thwart an imminent terrorist attack.=94 Id. at 44. The nature of =
the =93emergency,=94 which is simply another word for threat, takes the =
matter out of the realm of ordinary crime control.

>>>>>>>>>>>>>>>>>>>>>>>>>>


Besides erroneously quoting non-supported dicta some of the commentators =
above have referenced the 1967 Supreme Court Decision in Katz, but Katz =
is by its own words completely inapplicable to the instant situation =
involving President Bush authorizing the NSA to conduct certain =
warrantless/Non-FISA Ordered searches for foreign intelligence =
information gathering.

In Katz: the Supreme Court acknowledged that the President had claimed =
special authority for warrantless surveillance in national security =
investigations, and explicitly declined to extend its holding to cases =
"involving the national security." Id. at 358 n. 23.=20

Similarly, Congress in the Title III (wire tapping statutes) stated that =
"nothing in Title III shall . . . be deemed to limit the
constitutional = power of the President to take such measures as he deems
necessary to = protect the United States against the overthrow of the
Government by = force or other unlawful means, or against any other clear
and present = danger to the structure or existence of the
Government."=20

In fact every federal appellate case that decided the issue recognized =
the President's inherent constitutional authority to conduct warrantless =
surveillance for national security purposes.  Again quoting from the =
USFIS Court Of Review 11/18/02 Opinion:

>>>>>>>>>>>>>>>>>>

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=20

<<<<<<<<<<<<<<<<<<<<<<

So to close, I'd just like to say that as a 4th amendment constitutional =
scholar, Professor B is a really good corporate scholar , and to =
those who complain about conservatives instinctively approving of =
President Bush's actions which were so clearly to them, at least, =
unlawful, I would ask:  Why is it that you lefties jump like chicken =
littles shouting the sky is falling and flailing about with your arms = and
legs if the President seeks to lawfully protect our national = security
interests (or for that matter if a small child opens a prayer = book in the
public school cafeteria and silently gives thanks to the = lord for
providing that 1st class government supported meal).

Gary Britt  (I'm sorry but I don't have any great literary quotes from =
the founding fathers, because to be quite frank they would have thought =
all you chicken littles were nuts to be against the President protecting =
the country from foreign enemies by conducting warrantless surveillance =
of the communications made between the enemy and people in this country =
at a time of war.)

Next consider these posts from Alan Meese at professorbainbridge.com

Justice Powell's dicta contravenes the actual language of the 4th =
Amendment, precendent, historical and current practice. And, Powell =
himself ignored it numerous times.

1) The language of the 4th Amendment simply forbids "unreasonable =
searches" and says that, if you want a warrant you need probable
cause. = It does not require a warrant or probable cause before a search or
= seizure. Is there new language out there I am not aware of?

2) The Supreme Court has described 2 dozen situations in which no = warrant
is required for a search or seizure including very large = categories like
arrests for felonies and searches of automobiles. So far = as I know,
Justice Powell supported all of these decisions. These = searches and
seizures are valid even if it is practical/easy for the = officer to obtain
a warrant.

3) In 1789, the same Congress that wrote and proposed the Bill of Rights =
authorized warrantless searches of ships. James Madison signed =
legislation in 1815 that authorized warrantless searches of vessels, =
beasts, and persons.
Since the beginning, police have arrested and searched suspected felons =
without a warrant. Today the police can arrest a suspected felon, search =
his effects and put him in jail for 48 hours without seeking a probable =
cause determination from a magistrate. This is a very large intrusion, =
and no warrant is required, even if the police could easily get one. =
Ditto for searches of your car, boat, or mobil home.

4) The state interest in detecting terrorist activities BEFORE they come =
to fruition is much stronger than the interest in, say, detecting = illegal
drugs, the latter of which Justice Powell called "compelling" in
= US v. Mendenhall. Plus, the intrusion of, say, a wiretap may be far less
= than the intrusion of an arrest and search incident to it, plus the 48 =
hour incarceration that the law allows. A fortiori, then, a warrantless =
wiretap of someone suspected of conspiring with Al Qaeda seems quite =
reasonable.

5) The preference for a warrant may be alive and well in Law School =
Classrooms. But, Akhil Amar debunked it as a historical matter long ago, =
as have others. Plus there is the pesky constitutional text, which =
militates against such a presumption. Ivory tower fulminations against =
warrantless this or that, even in opinions by Justice Powell, are not up =
to the task of determining what is reasonable and thus Constitutional =
when agents of foreign adversaries are in your country plotting to kill =
your fellow citizens.

6) If there really is a warrant requirement, I guess we'll have to get =
rid of metal detectors at airports.

1) Why should it matter that the intercepts are admissible in court? The =
notion of excluding evidence that was "unlawfully seized" was
rejected = by most courts in the US until 1965. There is no basis in the =
constitution for such exclusion.

2) Second, what "rule" is being "bent?" Can anyone name
one other war in = which the FBI had to get a warrant to monitor a US
citizen calling the = enemy in a foreign country? If a German spy in
Chicago was calling = Himmler in 1943, do you think J. Edgar Hoover would
have sought a = warrant? Would evidence have been excluded? No --- and the
spy would = have been caught and executed after a secret trial in a
military court. = See EX PARTE QUIRIN, 317 US 1 (1942)(unanimous).=20


"Rich Gauszka"  wrote in message =
news:43a59f92$1{at}w3.nls.net...
> So if Bush authorized a monitoring of a "US Person" without court =
aproval he=20
> would be in violation of the law?  I'm not saying he did - just asking =
the=20
> question
>=20
> "as long as the person in the US does not qualify as a "US
person":"
>=20
>=20
>=20
> "Gary Britt"  wrote in message=20
> news:43a59bca{at}w3.nls.net...
> > The FISA Act And The Definition Of 'US Persons'
> > From Captian's Quarters:
> >
> > One of the critical points argued in regard to President Bush's =
angry
> > pushback on the NSA leak is that his executive order violates the =
Foreign
> > Intelligence Surveillance Act (FISA). People have the impression =
that FISA
> > requires warrants from the FISA judge, but that isn't what FISA says =
at=20
> > all.
> > In fact, FISA gives the government wide latitude in warrantless=20
> > surveillance
> > of international communications even when one point originates in =
the=20
> > US --=20
> > as long as the person in the US does not qualify as a "US
person":
> >
> > (i) =E2?oUnited States person=E2?=9D means a citizen of the United =
States, an
> > alien lawfully admitted for permanent residence (as defined in =
section=20
> > 1101
> > (a)(20) of title 8), an unincorporated association a substantial =
number of
> > members of which are citizens of the United States or aliens =
lawfully
> > admitted for permanent residence, or a corporation which is =
incorporated=20
> > in
> > the United States, but does not include a corporation or an =
association
> > which is a foreign power, as defined in subsection (a)(1), (2), or =
(3) of
> > this section.
> >
> > Note that a US person must either be a US citizen or someone =
lawfully
> > admitted to the US for permanent residence. If someone resides in =
the US=20
> > on
> > a visa and not a green card, they do not qualify, nor do they =
qualify if
> > they get a green card under false pretenses. FISA authorizes =
warrantless
> > surveillance in its opening chapter:
> >
> >=20
>=20
>
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No.  Its just one of many reasons why the President's actions =
were=20
proper and legal.  Did you read the stuff I put up on another =
thread? =20
I'll repeat it below just after this little teaser from the end:
 

what "rule" is being
"bent?" Can anyone name one other =
war in=20
which the FBI had to get a warrant to monitor a US citizen calling the = enemy in=20
a foreign country? If a German spy in Chicago was calling Himmler in = 1943, do=20
you think J. Edgar Hoover would have sought a warrant? Would evidence = have been=20
excluded? No --- and the spy would have been caught and executed after a = secret=20
trial in a military court. See EX PARTE QUIRIN, 317 US 1 = (1942)(unanimous).=20

 
 
NSA Surveillance Order By The President Is Perfectly Legal.
 
Please look at this research I posted at =
ProfessorBainbridge.com:
 
To Alan Meese's excellent posts and questions I would point readers =
to the=20
Supreme Court's many decisions in the "Special Needs" category
where = various=20
kinds of warrantless searches are approved as perfectly constitutional = because=20
they are reasonable in balancing the special needs of government with = the=20
constitutional protections for individual privacy and 4th amendment=20
protections.  These special needs cases were summarized by the US
= Foreign=20
Intelligence Surveillance Court Of Review in its 11/18/02 Opinion as=20
follows:
 
<<<<<<<<<<<<<<<<<=
<<<<<<<
 
Supreme Court's Special Needs Cases
 
The distinction between ordinary criminal prosecutions and =
extraordinary=20
situations underlies the Supreme Court's approval of entirely = warrantless and=20
even suspicion less searches that are designed to serve the government's =

=93special needs, beyond the normal need for law enforcement.=94 =
Vernonia School=20
Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. = Wisconsin, 483=20
U.S. 868, 873 (1987) (internal quotation marks omitted)) (random = drug-testing of=20
student athletes).32 Apprehending drunk drivers and securing the border=20
constitute such unique interests beyond ordinary, general law =
enforcement. Id.=20
at 654 (citing Michigan Dep't of State Police v. Sitz, 496 U.S. 444 = (1990), and=20
United States v. Martinez- Fuerte, 428 U.S. 543 (1976)).
 
A recent case, City of Indianapolis v. Edmond, 531 U.S. 32 (2000), =
is=20
relied on by both the government and amici. In that case, the Court held = that a=20
highway check point designed to catch drug dealers did not fit within = its=20
special needs exception because the government's =93primary purpose=94 =
was merely=20
=93to uncover evidence of ordinary criminal wrongdoing.=94 Id. at 41-42. =
The Court=20
rejected the government's argument that the =93severe and intractable = nature of=20
the drug problem=94 was sufficient justification for such a dragnet = seizure=20
lacking any individualized suspicion. Id. at 42. Amici particularly rely = on the=20
Court's statement that =93the gravity of the threat alone cannot be =
dispositive of=20
questions concerning what means law enforcement officers may employ to = pursue a=20
given purpose.=94 Id.
 
But by =93purpose=94 the Court makes clear it was referring not to =
a subjective=20
intent, which is not relevant in ordinary Fourth Amendment probable = cause=20
analysis, but rather to a programmatic purpose. The Court distinguished = the=20
prior check point cases Martinez-Fuerte (involving checkpoints less than = 100=20
miles from the Mexican border) and Sitz (checkpoints to detect = intoxicated=20
motorists) on the ground that the former involved the government's =
=93longstanding=20
concern for the protection of the integrity of the border,=94 id. at 38 = (quoting=20
United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)), and = the latter=20
was =93aimed at reducing the immediate hazard posed by the presence of = drunk=20
drivers on the highways.=94 Id. at 39. The Court emphasized that it was =
decidedly=20
not drawing a distinction between suspicion less seizures with a=20
=93non-law-enforcement primary purpose=94 and those designed for law =
enforcement.=20
Id. at 44 n.1. Rather, the Court distinguished general crime control = programs=20
and those that have another particular purpose, such as protection of = citizens=20
against special hazards or protection of our borders. The Court = specifically=20
acknowledged that an appropriately tailored road block could be used =
=93to thwart=20
an imminent terrorist attack.=94 Id. at 44. The nature of the =
=93emergency,=94 which=20
is simply another word for threat, takes the matter out of the realm of = ordinary=20
crime control.
 
>>>>>>>>>>>>>>>>>=
>>>>>>>>>
 
Besides erroneously quoting non-supported dicta some of the=20
commentators above have referenced the 1967 Supreme Court Decision in = Katz, but=20
Katz is by its own words completely inapplicable to the instant = situation=20
involving President Bush authorizing the NSA to conduct certain=20
warrantless/Non-FISA Ordered searches for foreign intelligence =
information=20
gathering.
 
In Katz: the Supreme Court acknowledged that the President =
had=20
claimed special authority for warrantless surveillance in national = security=20
investigations, and explicitly declined to extend its holding to cases=20
"involving the national security." Id. at 358 n. 23.

 
Similarly, Congress in the Title III (wire tapping =
statutes) stated=20
that "nothing in Title III shall . . . be deemed to limit the =
constitutional=20
power of the President to take such measures as he deems necessary to = protect=20
the United States against the overthrow of the Government by force or = other=20
unlawful means, or against any other clear and present danger to the = structure=20
or existence of the Government." 
 
In fact every federal appellate case that decided
the issue =

recognized the President's inherent constitutional authority to conduct=20
warrantless surveillance for national security purposes.  Again =
quoting=20
from the USFIS Court Of Review 11/18/02 Opinion:
 
>>>>>>>>>>>>>>>>>=
>
 
The Truong court, as did all the other courts to have decided the =
issue,=20
held that the President did have inherent authority to conduct = warrantless=20
searches to obtain foreign intelligence information. It was incumbent = upon the=20
court, therefore, to determine the boundaries of that constitutional = authority=20
in the case before it. We take for granted that the President
= does have=20
that authority and, assuming that is so, FISA could not encroach on the=20
President's constitutional power. The question before us is the reverse, =
does=20
FISA amplify the President's power 
 
<<<<<<<<<<<<<<<<<=
<<<<<
 
So to close, I'd just like to say that as a 4th amendment =
constitutional=20
scholar, Professor B is a really good corporate scholar <g>,
and = to those=20
who complain about conservatives instinctively approving of President = Bush's=20
actions which were so clearly to them, at least, unlawful, I would =
ask: =20
Why is it that you lefties jump like chicken littles shouting the sky is = falling=20
and flailing about with your arms and legs if the President seeks to = lawfully=20
protect our national security interests (or for that matter if a small = child=20
opens a prayer book in the public school cafeteria and silently gives = thanks to=20
the lord for providing that 1st class government supported meal).
 
Gary Britt  (I'm sorry but I don't have any great literary =
quotes from=20
the founding fathers, because to be quite frank they would have thought = all you=20
chicken littles were nuts to be against the President protecting the = country=20
from foreign enemies by conducting warrantless surveillance of the=20
communications made between the enemy and people in this country at a =
time of=20
war.)
 
Next consider these posts from Alan Meese at =
professorbainbridge.com
 
Justice Powell's dicta contravenes the actual language of the 4th=20
Amendment, precendent, historical and current practice. And, Powell = himself=20
ignored it numerous times.
1) The language of the 4th Amendment simply forbids "unreasonable =
searches"=20
and says that, if you want a warrant you need probable cause. It does = not=20
require a warrant or probable cause before a search or seizure. Is there = new=20
language out there I am not aware of?
2) The Supreme Court has described 2 dozen situations in which no =
warrant=20
is required for a search or seizure including very large categories like = arrests=20
for felonies and searches of automobiles. So far as I know, Justice = Powell=20
supported all of these decisions. These searches and seizures are valid = even if=20
it is practical/easy for the officer to obtain a warrant.
3) In 1789, the same Congress that wrote and proposed the Bill of =
Rights=20
authorized warrantless searches of ships. James Madison signed = legislation in=20
1815 that authorized warrantless searches of vessels, beasts, and=20
persons.Since the beginning, police have arrested and searched =
suspected=20
felons without a warrant. Today the police can arrest a suspected felon, = search=20
his effects and put him in jail for 48 hours without seeking a probable = cause=20
determination from a magistrate. This is a very large intrusion, and no = warrant=20
is required, even if the police could easily get one. Ditto for searches = of your=20
car, boat, or mobil home.
4) The state interest in detecting terrorist activities BEFORE they =
come to=20
fruition is much stronger than the interest in, say, detecting illegal = drugs,=20
the latter of which Justice Powell called "compelling" in US v. =
Mendenhall.=20
Plus, the intrusion of, say, a wiretap may be far less than the = intrusion of an=20
arrest and search incident to it, plus the 48 hour incarceration that = the law=20
allows. A fortiori, then, a warrantless wiretap of someone suspected of=20
conspiring with Al Qaeda seems quite reasonable.
5) The preference for a warrant may be alive and well in Law School =

Classrooms. But, Akhil Amar debunked it as a historical matter long ago, = as have=20
others. Plus there is the pesky constitutional text, which militates = against=20
such a presumption. Ivory tower fulminations against warrantless this or = that,=20
even in opinions by Justice Powell, are not up to the task of = determining what=20
is reasonable and thus Constitutional when agents of foreign adversaries = are in=20
your country plotting to kill your fellow citizens.
6) If there really is a warrant requirement, I guess we'll have to =
get rid=20
of metal detectors at airports.
 
1) Why should it matter that the intercepts are admissible in =
court? The=20
notion of excluding evidence that was "unlawfully seized" was
rejected = by most=20
courts in the US until 1965. There is no basis in the constitution for = such=20
exclusion.
2) Second, what "rule" is being
"bent?" Can anyone name one =
other=20
war in which the FBI had to get a warrant to monitor a US citizen = calling the=20
enemy in a foreign country? If a German spy in Chicago was calling = Himmler in=20
1943, do you think J. Edgar Hoover would have sought a warrant? Would = evidence=20
have been excluded? No --- and the spy would have been caught and = executed after=20
a secret trial in a military court. See EX PARTE QUIRIN, 317 US 1=20
(1942)(unanimous). 
 
 
"Rich Gauszka" <gauszka{at}hotmail.com>">mailto:gauszka{at}hotmail.com">gauszka{at}hotmail.com>
wrote in = message=20
news:43a59f92$1{at}w3.nls.net...>=20
So if Bush authorized a monitoring of a "US Person" without court
= aproval he=20
> would be in violation of the law?  I'm not
saying he did - =
just=20
asking the > question> >
"as long as the person in = the US=20
does not qualify as a "US person":">
> > > = "Gary=20
Britt" <email{at}from_Gary_Britt.org&g=">mailto:email{at}from_Gary_Britt.org">email{at}from_Gary_Britt.org&g=
t; wrote=20
in message > news:43a59bca{at}w3.nls.net...>=
 > The=20
FISA Act And The Definition Of 'US Persons'> > From
Captian's=20 Quarters:> >>
> One of the critical points argued in = regard=20
to President Bush's angry> > pushback on the NSA
leak is that = his=20
executive order violates the Foreign> >
Intelligence = Surveillance Act=20
(FISA). People have the impression that FISA> >
requires = warrants from=20
the FISA judge, but that isn't what FISA says at >
> = all.> >=20
In fact, FISA gives the government wide latitude in warrantless > =
>=20
surveillance> > of international communications
even when one = point=20
originates in the > > US -- >
> as long as the = person in the=20
US does not qualify as a "US person":>
>> > (i) =
=E2?oUnited=20
States person=E2?=9D means a citizen of the United States, an> =
> alien=20
lawfully admitted for permanent residence (as defined in section =
> >=20
1101> > (a)(20) of title 8), an unincorporated
association a=20 substantial number of> > members
of which are citizens of the = United=20
States or aliens lawfully> > admitted for permanent
residence, = or a=20
corporation which is incorporated > >
in> > the = United=20
States, but does not include a corporation or an association> =
> which=20
is a foreign power, as defined in subsection (a)(1), (2), or (3) =
of> >=20
this section.> >> > Note
that a US person must = either be a=20
US citizen or someone lawfully> > admitted to the
US for = permanent=20
residence. If someone resides in the US > >
on> > a = visa and=20
not a green card, they do not qualify, nor do they qualify if> =
> they=20
get a green card under false pretenses. FISA authorizes =
warrantless> >=20
surveillance in its opening chapter:>
>> > > =
>=20


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