From: "Gary Britt" 

No I'm not.  I'm saying the President has the authority to do warrantless
surveillance not only on Non US Persons (because there is a specific law
that says he does) but that the President has authority under the
constitution to conduct warrantless surveillance on US Persons if necessary
for the protection of the USA.  The courts have recognized this.  You
clearly aren't reading the info and court cases I've provided now twice or
you wouldn't have made the statement below.

Gary

"Rich Gauszka"  wrote in message
news:43a5a536{at}w3.nls.net...
Now you are waffling

  "Gary Britt"  wrote in message
news:43a5a232{at}w3.nls.net...
  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).


  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 “special needs, beyond the normal need for law enforcement.”
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 “primary
purpose” was merely “to uncover evidence of ordinary criminal wrongdoing.”
Id. at 41-42. The Court rejected the government's argument that the “severe
and intractable nature of the drug problem” was sufficient justification
for such a dragnet seizure lacking any individualized suspicion. Id. at 42.
Amici particularly rely on the Court's statement that “the gravity of the
threat alone cannot be dispositive of questions concerning what means law
enforcement officers may employ to pursue a given purpose.” Id.

  But by “purpose” 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 “longstanding concern for the protection of the
integrity of the border,” id. at 38 (quoting United States v. Montoya de
Hernandez, 473 U.S. 531, 538 (1985)), and the latter was “aimed at reducing
the immediate hazard posed by the presence of drunk drivers on the
 highways.” Id. at 39. The Court emphasized that it was decidedly not
drawing a distinction between suspicion less seizures with a
“non-law-enforcement primary purpose” 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 “to thwart an imminent terrorist attack.” Id. at
44. The nature of the “emergency,” 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.

  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."

  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

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

  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).


  "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
  > would be in violation of the law?  I'm not saying he did - just asking
the
  > question
  >
  > "as long as the person in the US does not qualify as a "US
person":"
  >
  >
  >
  > "Gary Britt"  wrote in message
  > 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
  > > all.
  > > In fact, FISA gives the government wide latitude in warrantless
  > > surveillance
  > > of international communications even when one point originates in the
  > > US --
  > > as long as the person in the US does not qualify as a "US
person":
  > >
  > > (i) ƒ?oUnited States personƒ?� means a citizen of the United States,
an
  > > alien lawfully admitted for permanent residence (as defined in section
  > > 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
  > > 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
  > > 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:
  > >
  > >
  >
  >

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