With guys like this running our government we would have nothing to fear from our enemines.

Or FDR,s famous words "We have nothing to fear but fear itself".

Gods, just imagine these guys running things, they are "fear itself".

In the NSA case, though, the government is gathering information to stop terrorist acts not to try those caught in court.

The only reason to go back to FISA to get a retroactive warrant is to make the evidence gathered 'legitimate' in the eyes of a court. If there is no intent (or, in the case of foreign nationals, ability) to arrest & try, there is no need for 'court-worthy' evidence.

But this still means that any US citizens implicated will eventually walk off scott-free, which still makes this a less-than-well-thought-out policy, IMHO...

Attorney General Alberto Gonzales said President Bush has the authority to conduct "very limited" su

Good discussion of the case. My take--and I could be wrong--is that the difference comes down to the very first sentence of the case:

"The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property."

Thus, we have a criminal case and the defendants are saying that evidence obtained without a warrant should be squelched and the government is saying, "No, no, this is about security." The Court, correctly, ruled that defendants' rights trump the government need to punish criminals.

In the NSA case, though, the government is gathering information to stop terrorist acts not to try those caught in court. I fully acknowledge that the evidence would be inadmissible against U.S. citizens if there was no warrant.

Remember, virtually all (perhaps all but I don't have that degree of expertise in ConLaw) 4th Amendment cases are about the admissibility of evidence.

When Congress authorized force against Iraq with SJR23 they were "declaring war." So ruled the US Court of Appeals

(Careful, it's a PDF.)

Changes the complexion of the argument a bit, I think.

A comment at Volokhia had the 1972 case that Mr. Prather appears to be thinking of, United States v. United States District Court, 407 U.S. 297 (1972). The title says it all, don't it?

The case is not helpful, that I can see, to the President. For example:

The Government relies on s 2511(3). It argues that 'in excepting national security surveillances from the Act's warrant requirement Congress recognized the President's authority to conduct such surveillances without prior judicial approval.' Brief for United States 7, 28. The section thus is viewed as a recognition or affirmance of a constitutional authority in the President to conduct warrantless domestic security surveillance such as that involved in this case.

We think the language of s 2511(3), as well as the legislative history of the statute, refutes this interpretation. The relevant language is that: 'Nothing contained in this chapter . . . shall limit the constitutional power of the President to take such measures as he deems necessary to protect . . .' Against the dangers specified. At most, this is an implicit recognition that the President does have certain powers in the specified areas. Few would doubt this, as the section refers--among other things--to protection 'against actual or potential attack or other hostile acts of a foreign power.' But so far as the use of the President's electronic surveillance power is concerned, the language is essentially neutral.

Plainly, then, we're not going to get from the "whereas" language in the "use of force" authorization, to wiretapping.

There is some language suggesting that the case might not've been so open-and-shut were foreign powers involved, but then, the case predates FISA with its detailed statutory scheme for handling just such.

See this graf for ex:

These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch. The Fourth Amendment does not contemplate the executive officers of Government as neutral and disinterested magistrates. Their duty and responsibility are to enforce the laws, to investigate, and to prosecute. Katz v. United States, supra, at 359--360, 88 S.Ct. at 515--516 (Douglas, J., concurring). But those charged with this investigative and prosecutorial duty should not be the sole judges of when to utilize constitutionally sensitive means in pursuing their tasks. The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.

In other words, the Founders wrote the Fourth Amendment not to preserve untrammelled executive power, but because they'd had all to much experience of it.

Read the whole case---many passages sound like they came out of today's news:

The Government argues that the special circumstances applicable to domestic security surveillances necessitate a further exception to the warrant requirement. It is urged that the requirement of prior judicial review would obstruct the President in the discharge of his constitutional duty to protect domestic security. We are told further that these surveillances are directed primarily to the collecting and maintaining of intelligence with respect to subversive forces, and are not an attempt to gather evidence for specific criminal prosecutions.

Sounds very familiar. The Court was not impressed:

Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of 'ordinary crime.' If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance.

By the end of the op, the Court basically calls for Congress to enact FISA. Much good that it did.

They "leaked" the info because they believed the administration was breaking the law.

I seems to be similiar to the point that the individuals most concerned with the administration policy on torture were the military lawyers.

But of course I read comments blaming this on the Democrats who had nothing to do with the information being made public.

Of course, leaking that the administration is
breaking the law is bad, but leaking to punish a political opponent -- the Plame case -- is OK. Right?

There may be a perfectly reasonable explanation for this but, so far as I can determine, it hasn't been offered yet.

Bush gave his explanation last night--he maintains that he doesn't have to follow the rule of law.

Since this is ultimately a political issue Bush bashers will have a problem. They can't argue the government has no...

How many voters is he typical of? 10%? 20%? How many Americans are okay with a Republican dictatorship?