Saturday, August 19, 2006

Bush's NSA Electronic Eavesdropping Illegal?

After the outrageous ruling of US district Judge Anna Diggs Taylor from Detroit striking down the NSA Surveillance program, I dug around to find what others with a more legal mind than I have had to say about the program.

"The Department of Justice believes -- and the case law supports -- that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes and that the president may, as he has done, delegate this authority to the attorney general," Clinton Deputy Attorney General Jamie S. Gorelick said in 1994 testimony before the House Permanent Select Committee on Intelligence.
“Attorney General Reno has already signed off on the warrantless search of an American home on the basis of the dubious "inherent authority" theory. The actual number of clandestine "national security" searches conducted since 1993 is known only to the White House and senior Justice Department officials.” Benjamin Wittes, "Aldrich Ames' Legal Legacy: Surveillance Court Gets New Powers," Legal Times, November 7, 1994, p. 1.
“One of the most famous examples of warrantless searches in recent years was the investigation of CIA official Aldrich H. Ames, who ultimately pleaded guilty to spying for the former Soviet Union. That case was largely built upon secret searches of Ames' home and office in 1993, conducted without federal warrants.”
“In 1994, President Clinton expanded the use of warrantless searches to entirely domestic situations with no foreign intelligence value whatsoever. In a radio address promoting a crime-fighting bill, Mr. Clinton discussed a new policy to conduct warrantless searches in highly violent public housing projects.”
“In 1978, for instance, Attorney General Griffin B. Bell testified before a federal judge about warrantless searches he and President Carter had authorized against two men suspected of spying on behalf of the Vietnam government.”
“Clinton asked Congress to pass legislation that would give the Federal Bureau of Investigation the power to use "roving wiretaps" without a court order. The president also fought for sweeping legislation that is forcing the telephone industry to make its network more easily accessible to law enforcement wiretaps. Those initiatives have led ACLU officials to describe the Clinton White House as "the most wiretap-friendly administration in history." ("Anti-Terror Bills Pushed by Clinton," Washington Post, July 30, 1996, p. A1 and "Clinton, Dole Rate Low on Civil Liberties," National Law Journal, October 28, 1996, p. A1)
As quoted From Dereliction of Duty, by Timothy Lynch of the Cato Institute, March 31, 1997.

FISA was initiated by President Carter in 1978. Today’s Supreme Court is less in the pockets of the ACLU than it was then or since. For a bit more in depth view into how past Courts have ruled on wiretapping, including wireless wiretapping, visit the article at Powerlineblog.com . A lengthy read, but informative.

Justice Byron White ruled in 1967 that Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967)

In the past, the Supreme Court has ruled that warrants are relevant only in domestic threats. It has expressly distinguished, foreign threats. See United States v. United States District Court, 407 U.S. 297,308 (1972).

The Case For Spying

First obtaining a warrant in the fast minute by minute speed of intercepting overseas communications to possible Al Qaeda cells within the US would allow the early warning of a pending terrorist attack to go undetected. Additionally, if you advocate warrants first, how do you propose the government gather the evidence needed for obtaining the warrant in the first place?

As I understand it, warrants are only required under if the communication is wholly contained within the U.S.

President Carter's Attorney General Griffin Bell stated that, despite the absence of an express reservation, the Act "does not take away the power of the President under the Constitution. It simply, in my view, is not necessary to state that power, so there is no reason to reiterate or iterate it as the case may be. It is in the Constitution, whatever it is." Testimony of Attorney General Griffin Bell before the Subcommittee on Legislation of the Permanent Select Committee on Intelligence of the House of Representatives (January 10, 1978).”

“AG Edward Levi before the Subcommittee on Criminal Laws and Procedures of the Committee on the Judiciary of the United States Senate (March 29, 1976) "It is hard to imagine all the conceivable possible cases, particularly in an area where scientific developments may make enormous changes. . . The very nature of the reserved Presidential power, the reason it is so important is that some kind of an emergency could arise which I cannot foresee now, nor with due deference to the Congress, do I believe Congress can foresee . . . I would not want to advise anyone to think that the kinds of circumstances which might arise might not be of such a strange and peculiar nature that we would not have thought of them, and particularly in an area, as I say, where scientific developments come so frequently."

“Levi also said a traditional warrant procedure works when surveillance "involves a particular target location or individual at a specific time." Foreign intelligence, however, may in some situations require "virtually continuous surveillance, which by its nature does not have specifically predetermined targets." In these situations, "the efficiency of a warrant requirement would be minimal."

“FISA does not anticipate a post-Sept. 11 situation. What was needed after Sept. 11, according to the president, was surveillance beyond what could be authorized under that kind of individualized case-by-case judgment. It is hard to imagine the Supreme Court second-guessing that presidential judgment.”

”Should we be afraid of this inherent presidential power? Of course. If surveillance is used only for the purpose of preventing another Sept. 11 type of attack or a similar threat, the harm of interfering with the privacy of people in this country is minimal and the benefit is immense.” (Statements of John Schmidt, associate Attorney general, 1994 to 1997 under President Clinton.)

While I won't claim to be a "Legal Eagle," a bit of common sense says this Judge is either inept or in someones pocket. The ACLU filed the lawsuit in January on behalf of journalists, scholars and lawyers who say the program has made it difficult for them to do their jobs. They believe many of their overseas contacts are likely targets of the program, which monitors international phone calls and e-mails to or from the U.S. involving people the government suspects have terrorist links.

As I see it, the above I bolded tells me that these "journalists, scholars and lawyers" either know or strongly suspect they are talking to terrorists overseas. What kind of person would knowingly talk to these terrorists, possibly discovering or being told about a pending attack and not tell the government or want to government to know?

If this is so, would they be the first there to cover the story, setting up cameras to catch all the gore, blood and pain, instead of trying to save lives?

That several Democrats are applauding this travesty should show the country where their sympathies really lie, and it isn't with protecting the American people.

The older I get, the more I shake my head at the lunacy of our Judicial system and politicians in Washington D.C.

Lew

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