1995 - Janet Reno outlines constricted surveillance procedures between law enforcement

2001 - Patriot Act signed after Sept 11th attacks

2001 - Justice Dept. (Pres. Bush) submits surveillance requests under looser rules from the Patriot Act

2001 - FISA rejects new requests

2002 - In March, Justice informs FISA of the new standards. In May FISA orders modifications, reaffiring the old "wall": "law enforcement officials shall not make recommendations to intelligence officials concerning the initiation, operation, continuation or expansion of FISA searches or surveillances"

2002 - In July Justice files a surveillance application without the recommended changes from FISA. FISA makes its decision public in August, demanding the changes again.

2002 - In September, a Court of Review ensues. Olson says that the FISA demands are "inexplicable".

2002 - November ruling by the Court of Review came down strongly in favor of the administration, indicating that FISA "had erred". As York points out "Not only could the FISA Court not tell the president how do to his work, the Court of Review said, but the president also had the “inherent authority” under the Constitution to conduct needed surveillance without obtaining any warrant — from the FISA Court or anyone else."

taken from NR 2/27/06 Byron York

""[T]he President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."

"We cannot fight a war blind. Because communications intelligence activities constitute, to use the language of Hamdi, a fundamental incident of waging war, the AUMF clearly and unmistakably authorizes such activities directed against the communications of our enemy.

"The program is monitored by lawyers, reauthorized every 45 days by the President and has been discussed with both Congress and the FISA court itself. The Administration even decided against warrantless wiretaps on al Qaeda suspects communicating entirely within the U.S., though we’d argue that that too would be both constitutional and prudent." - WSJ 2/15

"The official emphasized that people whose communications were intercepted under the special program had to have a link to Al Qaeda or a related group, even if indirectly" from NY Times

"Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded." Turner, WSJ, 12/28/05

"As federal judge and former Deputy Attorney General Laurence Silberman explained in his 1978 testimony on FISA, the President is accountable to the voters if he abuses surveillance power. Fear of exposure or political damage are powerful disincentives to going too far. But judges, who are not politically accountable, have no similar incentives to strike the right balance between intelligence needs and civilian privacy. This is one reason the Founders gave the judiciary no such plenary powers." - WSJ 2/15

"kay, just for the benefit of the audience, the Truong Court, as did all other courts that have decided the issue, held that the president did have inherent authority to conduct warrantless surveillance to obtain foreign intelligence information. We take for granted that the president does have that authority, and asserting that is so, FISA could not encroach on the president's Constitutional authority." - Hewitt Jan 06

"In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power." - Turner, WSJ, 12/28/05

"Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant." - Turner, WSJ, 12/28/05

" This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded."Asst. Attorney General to Judicial Committee

"As the Commander-in-Chief in wartime, he has the right to use force against entities/parties that are waging war against the U.S. Since the United States was attacked on September 11, the president can use force to wage a defensive war entirely on his own authority." - Rivkin 1/31/06

"The fact that Congress passed the Authorization to Use Force Resolution manifests a joint action by both political branches, reinforces the president's inherent authority, and puts him in the Youngstown's upper quadrant." Rivkin 1/31/06

"If such authority can be denied to the president or subjected to onerous regulation, his C-in-C powers would be entirely vitiated." Rivkin 1/31/06

"It is precisely because of this targeted focus of al Qaeda's efforts that intercepting their U.S.-related communications is of such battlefield value. " Rivkin 1/31/06

"To summarize this point, gathering info on enemy communications in and around his preferred target area is the core of battlefield intelligence acquisition--this is what military intel officers do for a living. " - Rivkin 1/31/06

"(By the way, the Hamdi case never suggested that the battlefield in this war was limited to Afghanistan. The Court properly limited/caveated its holding to the facts in the Hamdi case, which involved the battlefield capture in Afghanistan. This judicial modesty is actually quite refreshing in today's environment." - Rivkin 1/31/06

"The reason for the Court's conclusion in Hamdi is quite obvious--when Congress uses sweeping language to confer power on the president, especially in an area where the president already has an ample authority of his own, the language ought to be construed broadly." - Rivkin 1/31/06

"In this case, construing FISA as requiring a warrant as the exclusive venue for battlefield intel collection would surely render unconstitutional. " - Rivkin 1/31/06

"In my view, the Framers' core purpose was to create a strong and independent executive, with the particularly formidable foreign/defense powers--the lack of such an executive was one of the key flaws of the Articles of Confederation. " - Rivkin 1/31/06

" Applying the FISA framework to the wartime battlefield intel gathering implicates a fundamentally different calculus, if only because it impairs the president's wartime abilities to an enormous degree. " - Rivkin 1/31/06

"That limitation could refer merely to information that is gathered by intelligence in Afghanistan, Iraq, or other foreign locations. Or it could refer to any intelligence effort anywhere at any time; on the ground in terrorist situations, all the world is a battlefield on which the Commander-in-Chief occupies central stage." - Epstein 1/31/06

"That broad construction seems quite at variance with the Supreme Court's own more cautious views in Hamdi v. Rumsfeld (2004), where the ability to detain American citizens captured on the battlefield in Afghanistan was set in conscious opposition to the worldwide definition of "battlefield" on which David seems to rely." Epstein 1/31/06

"It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period." - letter from scholars

"There seems to be little doubt that the elaborate mechanisms set out in the Foreign Intelligence Surveillance Act, no matter what we think of their merits, were meant to cover domestic surveillance." - Epstein 1/31/06

" FISA does not deal with any effort to track calls that begin against al Qaeda cells outside the United States, which then lead to the United States. FISA only deals with situations where the target of the surveillance is a U.S. person or where that surveillance is "acquired in the United States." The debate over the legality of president's action covers only those last two categories of cases, not everything done by the NSA." - Epstein 1/31/06

"The use of intelligence is obviously common in war, but the separation of powers question is not answered by that observation. " Epstein 1/31/06

" Implied authorization of executive power is hard to read in the teeth of FISA, and the inherent powers of the president, if such there be, do not give him unquestioned independence for over four years, no matter what rights they confer on him to respond to an immediate emergency." - Epstein 1/31/06

"There’s no inference that the powers ceded on the battlefield could extend to situations that moved further away from traditional situations of actual combat, which is just as it should be." - Epstein 1/31/06

"The president does have in Article II a power to grant reprieves and pardons, which should be construed as plenary, so that Congress could not limit it by statute. But in his role as commander-in-chief, he has no special powers not given to other generals so that we don’t get into the situation. " - Epstein 1/31/06

"Remember, this is not about whether it's right or wrong to wiretap bad guys, though the White House hopes to frame it that way for political purposes. Any rational person wants the president to be able to hunt for Qaeda suspects wherever they lurk. The "momentous" issue (Alito's words) is whether this president, or any other, has the right to tell Congress to shove it. And even if one concedes that wartime offers the president extra powers to limit liberty, what happens if the terrorist threat looks permanent? We may be scrapping our checks and balances not just for a few years (as during the Civil War), but for good." - Alter 1/23/06