Sunday, January 22, 2006

 

The Department of Justice on Foreign Wiretaps

It's a long, long read, but the Justice Department has issued a 42 page report on why the President is required to listen in on foreign communications by known or suspected al Qaeda members or their sympathizers. He doesn't need a warrant. Here's a PDF version.

Here's my synopsis: The President's primary duty is to defend the country as commander in chief of our military forces. Spying and wiretapping is clearly part of historical military activity (George Washington used spies to intercept British documents; J.E.B. Stewart had man riding with his troops who would tap telegraph lines and listen in on Yankee Morse code messages--who knew?). The Congress' September 14, 2001, Authorization for Use of Military Force, (AUFM), bolstered the President's inherent power to use all necessary and appropriate force to prevent another al Qaeda attack. The recent Hamdi case said that, even if the specific "force" is not spelled out in the AUFM, Congress empowered our President to take any action which is a "fundamental incident of waging war." In Hamdi it was holding prisoners; here it is spying on al Qaeda.

FISA is a 1978 law which prohibits wiretaps of American citizens "except as authorized by statute." The AUFM is the authorizing statute. Even if there is a question whether the AUFM applies to what the NSA was doing, it is a settled rule of statutory interpretation that a statute is not interpreted to create a constitutional problem. Since the President has inherent constitutional authority to spy on foreigners (bolstered by AUFM), the courts should not interpret FISA to impede that authority. Congress cannot take away by statute what the Constitution clearly grants to the President. The 4th Amendment is not violated because the President's spying on al Qaeda is reasonable under the circumstances of our being at war with al Qaeda and its supporters.

Oh, and the case law overwhelmingly supports the President's position on this.

Quod erat demonstrandum.

Comments:
"Oh, and the case law overwhelmingly supports the President's position on this."

Nonsense. Roger, you are a disingenuous liar (and not very bright).
 
Let's keep the discourse civil.
 
Anon. Tell me the case law that supports your position.
Tony, the guy (or girl) is not capable of it. Let's see if he has the goods other than a repetitive invective. My money is on not.
 
Justice Powell's decision in United States v. United States District Court for the Eastern District of Michigan et al, 407 U.S. 297 (1972)
ruled that the Executive Branch is constitutionally prohibited from engaging in warrantless eavesdropping on the domestic communications of American citizens. He held that we citizens have a constitutional right under the Fourth Amendment which bars -- rather than permits -- the Government from eavesdropping on our conversations without a warrant.

And to argue that this decision supports the Bush Republican position because the court did not extend it at that time to international conversations is just insince reasoning which shows a lack of understanding of the methods of Appellate review.
 
Hey Roger,

I hear it may come out that they listened on millions of conversations. You realize that even if what you write is valid, if they so much as make one mistake, they have broken THE law (the constitution that is, well some say its already broken beyond fixing). What is the big deal about getting a warrant anyway?

Michael
 
Anon. You give me the Keith case? Is that all you have? It's about domestic surveilance--Americans in America talking to other Americans in America. Twice Justice Powell said, in good dicta, this decision has no effect on and we make no ruling regarding foreign surveillance. So not that helpful. To you. Pretty darn helpful to my position as the Keith case is one of the cases I cite in support of the President's actions, even though it was written 6 years before FISA was passed into law. Please keep commenting though, D. and I enjoy your comments a lot. We don't find them at all persuasive, but we like them.
Mike in Prague, this dispute is about FISA and whether it can constitutionally stop the President from doing what the commander in chief powers allow him to do (and I think require him to do). It's not about the 4th amendment in my mind. I remember your Katz citation though so clearly that is something important to you. Do we really know the number of conversations with a person in America on one side? The number I've heard is 500. Who said a million? Thanks for the comment.
 
" Anon: You clearly do not get the fine points"

Boy, would I like to get you in a courtroom. Clzwh, there are no fine points and this isn't rocket science. Justice Powell wrote a 25 page opinion absolutely blasting Nixon for conduct similar to Bush's. However because the facts only involved domestic surveillance, Justice Powell did what any good appellate Judge always does, he said he was limiting his holding to the facts before the court. And as any good appellate lawyer knows, if and when the new factual situation comes before the court, 99 times out of 100, the holding is extended to the new facts. Anybody who thinks the Keith case supports the Bush position, simply doesn't understand basic concepts of Appellate Review, and if he made the same argument to a real judge, would get laughed out of court.
 
And as any good appellate lawyer knows, if and when the new factual situation comes before the court, 99 times out of 100, the holding is extended to the new facts.

That's a ridiculous statement. Most of the anti-Bush crowd aren't going near the Fourth Amendment argument because they know it's a loser. The serious argument is that FISA was violated. Anon: Let's hear why you think the Congressional use of force resolution didn't include, as a "normal incident" of military action, the power to spy on potential enemy agents, even if those agents are physically within US borders.

Praguetwin: Here's why it's a big deal to get a warrant (courtesy of Victoria Toensing):

And to correct an oft-cited misconception, there are no five-minute "emergency" taps. FISA still requires extensive time-consuming procedures. To prepare the two-to-three-inch thick applications for non-emergency warrants takes months. The so-called emergency procedure cannot be done in a few hours, let alone minutes. The attorney general is not going to approve even an emergency FISA intercept based on a breathless call from NSA.

For example, al Qaeda agent X, having a phone under FISA foreign surveillance, travels from Pakistan to New York. The FBI checks airline records and determines he is returning to Pakistan in three hours. Background information must be prepared and the document delivered to the attorney general. By that time, agent X has done his business and is back on the plane to Pakistan, where NSA can resume its warrantless foreign surveillance. Because of the antiquated requirements of FISA, the surveillance of agent X has to cease only during the critical hours he is on U.S. soil, presumably planning the next attack.

Even if time were not an issue, any emergency FISA application must still establish the required probable cause within 72 hours of placing the tap. So al Qaeda agent A is captured in Afghanistan and has agent B's number in his cell phone, which is monitored by NSA overseas. Agent B makes two or three calls every day to agent C, who flies to New York. That chain of facts, without further evidence, does not establish probable cause for a court to believe that C is an agent of a foreign power with information about terrorism. Yet, post 9/11, do the critics want NSA to cease monitoring agent C just because he landed on U.S. soil?
 
I'm going to call your Victoria Toensing and raise you Judge Andrew Napolitano: Heres what that noted liberal said on Faux yesterday:

"Now I disagree with Victoria Toensing on the FISA court. It's very easy to get a warrant from FISA. You can impose the wiretap today and wait to get the warrant for 72 hours. There's no demonstrable evidence that we need to cut holes in the Constitution in order to beat these guys. They're not here; they're over there."
 
That was what I understood about the FISA law as well (according to anonymous). I had also understood that emergency measures could be taken so long as the FISA courts were notified after. The situation we are facing is one where the president (via AG) is authorizing hundreds, maybe thousands of wiretaps. FISA ought to be notified if for no other reason than to have records of said surviellence on file.

Sorry Roger, cant remember where I heard the million. Probably propoganda.
 
Please don't go to "Judge" Napolitano. As Andrew McCarthy notes:Napolitano was once a midlevel state-court judge in New Jersey. Assuming for argument's sake that this experience is a sure sign of actual legal expertise, it would be an exceedingly narrow one: to wit, he might be thought an authority on the constitution and laws of the Garden State. Fox, however, has opportunistically chosen to ignore the "New Jersey" modifier in his former title and focus myopically on the "Judge" part. The network has adopted a convention whereby all Fox News correspondents refer to Napolitano on the air not by name but as "Judge." He then proceeds to expound with glib certainty on all manner of legal issues, including matters of federal law, for which he appears to have little familiarity.

I am shocked that you are watching Fox, Anon.
 
My point, which I guess was a little over your head, is that both Toensing and Napolitano are right wing media hacks, and its absurd to take seriously what either one of them say, much less to use them in support of your argument.
 
Anon: Let me repeat:

Anon: Let's hear why you think the Congressional use of force resolution didn't include, as a "normal incident" of military action, the power to spy on potential enemy agents, even if those agents are physically within US borders
 
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