Yes you did misstate the relevant principles (twice now). And no, you couldn’t have gotten a better grade in con law.

but powers specifically granted by the constitution are another matter. (The specific power here is as commander in chief of the armed forces, and there is a line of cases that intelligence gathering is a fundemental aspect of military operations.)

Congress is expressly given the power to make rules governing those very same armed forces over which the president is commander in chief. FISA is quite clearly within that power (as well as a number of other powers). This is an area in which Congress and the president quite obviously share authority, and therefore, under the Youngstown framework, the statute trumps. That was the holding just recently in Hamdan. If a statute trumps the presidents power with respect to the treatment of foreign combatants on foreign soil, it sure as hell trumps the presidents power when it comes to surveillance U.S. citizens within the U.S. The president does not have an exclusive power to set the rules governing surveillance of U.S. citizens. There are no cases at all that support that conclusion.

As to the dreadful decision, and having actually read a line of cases including Truong, I have NO doubt it will be stomped on appeal.

As JPE pointed out, Truong is only relevant to the 4th amendment issue. Even if the Sixth Circuit disagrees with Judge Taylor on that issue, she’s still clearly right about the statutory/FISA issue. Even if the program is constitutional, it is still clearly illegal.

the Article II argument has been the position of every administration since Carter!

Wrong again. No president, until Bush, has ever claimed the power to disregard FISA’s prohibition against warrantless surveillance. And he only did so AFTER he was caught breaking it. And please don’t both mentioning the Aldringe Ames/Clinton episode. At the time FISA did not cover physical searches.

Truong, of course, was rendered moot by FISA. Re: Commander in chief power: it’s an administrative and not a policy position. That power over policy is very clearly granted to Congress, which has the power to set rules governing the military.

I not a lawyer, but it seemed to me that in my reading of the court’s decision there was an abundance of citations to previous cases throughout the opinion. Perhaps you should cite specifically were you find an incompatibility between the argument and the citations.

mtl said–Actually there is a ton of case laws that make exceptions to the rules of obtaining a warrant.

So gives us a few of the more decisive cases that in your opinion that supercede the requirements of FISA with respect to warrants so we might judge the basis of your statement.

As to the dreadful decision, and having actually read a line of cases including Truong, I have NO doubt it will be stomped on appeal. I doubt if even the Ninth Circuit would uphold the decision.

That’s always in the absence of a statute requiring a warrant. A statute would moot those court cases. The fourth amendment is a floor, not a ceiling.

There was a move to take up a counter argument by Glenn greenwald or in your words-

” I think Glenn’s takedown of Althouse’s op-ed is pretty devastating.”

I found that to be a riduclous statement as his article offers no case law, and his supporting experts seem to agree that Taylor’s ruling is incoherent contrary to Greenwald’s belief.

“We’ve all been discussing the relevant case law for months.”
Really…why did you stop today?

“And there is no case law whatsoever that suggests that the president has the exclusive power to make rules govering surveillance.”

Actually there is a ton of case laws that make exceptions to the rules of obtaining a warrant. It does eem that evrytime the court found a chance to restrict the govt’s ability to go into people’s 4th amendment rights, they also took the time to say that it is not universally applicable and exceptions exist.

My contention is that terrorism is the exception.