Skip to comments.American Bar Association Slams Bush's Domestic Spying Program
Posted on 02/13/2006 9:03:38 PM PST by Ernest_at_the_Beach
Washington, D.C. (AHN) - The American Bar Association wants President George W. Bush to either stop domestic eavesdropping without a warrant or get the law changed to make it legal.
The more than 500 members of the ABA policy-setting body passed a resolution saying that both national security and constitutional freedoms needed to be protected.
Association president Michael Grecco tells reporters, "We hope the President will listen... We do not say surveillance should be stopped, only that it comply with the law."
Authorized by Bush in 2001, the program allows the National Security Agency (NSA) to monitor the international phone calls and e-mails of U.S. citizens to track people with ties to al-Qaeda and other militant groups.
The White House says warrant-less eavesdropping is legal under Bush's constitutional powers as commander-in-chief and a congressional authorization for the use of military force adopted days after the September 11 attacks.
The program bypassed secret courts created under the 1978 Foreign Intelligence Surveillance Act (FISA) that grant warrants.
Neal Sonnett, a Miami lawyer who headed the task force formed to look at the issue not long after the spying program came to light in December.
"We are not trying to limit the President's ability to go after terrorists," Sonnett tells the group's House of Delegates before it passed his task force's resolution with relatively little debate.
"Nobody wants to hamstring the President," he adds, "But we cannot allow the U.S. Constitution and our rights to become a victim of terrorism."
Grecco tells the group the issue is not whether the President can conduct surveillance, but whether he can do it unilaterally.
The ABA's resolution calls on Bush "to abide by the limitations which the Constitution imposes on a President" to make sure national security is protected in a way that is consistent with constitutional guarantees.
It opposes "any future electronic surveillance inside the United States by any U.S. government agency for foreign intelligence purposes that does not comply with provisions of the Foreign Intelligence Surveillance Act."
If Bush believes that law is inadequate then he should ask Congress to change it or enact new legislation, it adds.
Maybe the Federalist Society could set up an association...
",,,the three-judge panel said the expanded wiretap guidelines sought by Attorney General John Ashcroft under the new USA Patriot Act law do not violate the Constitution."
YEAH! That means Ashcroft can go after the NY Times for spilling the beans.
What else would you expect from a bunch of slimeball shysters?
Yeah, no kidding, the group of self-serving political wannabes.
The matter is likely moot as the exposure of the program has probably caused the terrorists to change their methods of communication.
I wonder - has chatter dropped off since December, when the leak occurred?
Does that include protecting us from ourselves?
The facts may be classified!
Another leftisit organization steps up to get their 2 cents in! Are there no end to them?
"Does that include protecting us from ourselves?"
It should include protecting us from traitorous Americans.
Nonsense. By their own admission, the ABA is demanding that the President act only within the limits of some as yet unspecified protocol.
If Bush believes that law is inadequate then he should ask Congress to change it or enact new legislation, it adds.
The President doesn't need to do any such thing. If Congress wants to pass some law, they can do that on their own.
"Nobody wants to hamstring the President," [Neal Sonnett] adds, "But we cannot allow the U.S. Constitution and our rights to become a victim of terrorism."
Mr. Sonnet, if you are squeamish about the federal government's actions when they are done under the auspices of the President, how is it that you're ok with those same actions when they're done under the auspices of Congress?
Domestic? They have to be pretending to be stupid.
Howlin, that article refers to In Re: Sealed Case, which is a very important chapter in this overall story.
As of the date of the opinion, one of the primary proponents in DOJ of "The Wall" had moved to the FISA Court to become its legal advisor.
The government took the position in that case that the Wall was an erroneous reading of FISA even before the Patriot Act, and the Court agreed. Moreover, a specific purpose of the Patriot Act was to eliminate the Wall as a barrier between foreign intelligence and criminal law enforcement.
Nevertheless, *after* we had been attacked, and *after* the Patriot Act had been passed, the FISA Court, on its own, adopted a set of regulations that effetively rebuilt the wall.
The FISA Court of Review administered a severe smack down in this opinion, holding that the lower court's rules rebuilding the wall were dead wrong.
Now we come to find out that they have again imposed a unilateral requirement that none of the NSA Surveillance take can be used to support a FISA warrant application. This is another misread of the law.
As for our pals at the ABA, they are taking the position that under the AUMF we can kill al Qaeda, we just can't listen to their phone calls.
Idiots, charging $500/hour, who don't even know the law.
And would that include anyone who feels the president might be abusing new powers given to him in the P.A.?
The Federalist Society runs an "ABA Barwatch," but it hasn't weighed in yet with news of the ABA Resolution. I've not found the text of the resolution either.
Here is what appears to be (without checking all the cites) an accurate summary of the genesis of the FISA Court. Note that all three branches were involved. The idea for such a court was suggested in a SCOTUS case, a President (Ford) submitted model legislation to Congress, and so the loop goes around, and around, and around ...
In Keith, the Court recognized that Congress did not intend to regulate every aspect of the executive branch's constitutional authority to conduct warrantless electronic surveillance for national security purposes under the Crime Control Act of 1968. [FN581] Instead, Justice Powell obliquely extended an invitation to Congress to create a framework for judicial review of internal security surveillance, parallel to its system for domestic law enforcement. [FN582] Although Congress did not react immediately to the Keith Court's prescription for a flexible, Fourth Amendment standard in internal security investigations, it provided an important impetus for the development of such legislation. [FN583]
Through trial-and-error, the Executive and Congress sought to find a legislative solution to the problem of warrantless searches. [FN584] In 1976, President Ford submitted a bill to the Senate that would have codified existing executive branch practices, and Attorneys General William Saxbe and Edward Levi pledged their cooperation to work with Congress to create legislation to regulate electronic *76 surveillance. [FN585] Debate and discussion centered on the extent of the executive's inherent authority and whether the traditional criminal law standard should be included in the legislation. [FN586]
Senator Kennedy introduced a bill in 1977 that would have specifically repealed the disclaimer in the 1968 Crime Control Act and thus expressly eliminated congressional recognition of inherent executive power in this sphere. [FN587] During hearings on the Kennedy bill, the most controversy centered on the appropriate standards for targeting Americans who were not accused of criminal acts. [FN588] The Carter administration supported the legislation in principle, and after hearings in the House and Senate Intelligence Committees, both chambers approved the amended Kennedy proposal to drop the disclaimer repeal. [FN589] The proposal included a "quasi-criminal" targeting standard and more limited protections for aliens representing foreign governments in the United States. [FN590] In this climate of reform and inter-branch compromise, Justice Powell's invitation was finally accepted when Congress passed, and President Carter signed into law, the Foreign Intelligence Surveillance Act of 1978 (FISA). [FN591]
The "Keith" case (and Truong) are necessary background, as well. Here are parts of the Keith case, which was decided by a unanimous court. Rhenquist did not participate in the decision.
On the basis of the Attorney General's affidavit and the sealed exhibit, the Government asserted that the surveillance was lawful, though conducted without prior judicial approval, as a reasonable exercise of the President's power (exercised through the Attorney General) to protect the national security. The District Court held that the surveillance violated the Fourth Amendment, and ordered the Government to make full disclosure to Plamondon of his overheard conversations. 321 F. Supp. 1074 (ED Mich. 1971). The Government then filed in the Court of Appeals for the Sixth Circuit a petition for a writ of mandamus to set aside the District Court order, which was stayed pending final disposition of the case. After concluding that it had jurisdiction, 3 that court held that the surveillance was unlawful and that the District Court had properly required disclosure of the overheard conversations, 444 F.2d 651 (1971). We granted certiorari, 403 U.S. 930. ...
But we do not think a case has been made for the requested departure from Fourth Amendment standards. The circumstances described do not justify complete exemption of domestic security surveillance from prior judicial scrutiny. Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure. ...
We emphasize, before concluding this opinion, the scope of our decision. As stated at the outset, this case involves only the domestic aspects of national security. We have not addressed, and express no opinion [407 U.S. 297, 322] as to, the issues which may be involved with respect to activities of foreign powers or their agents. 20 Nor does our decision rest on the language of 2511 (3) or any other section of Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That Act does not attempt to define or delineate the powers of the President to meet domestic threats to the national security. ...
It may be that Congress, for example, would judge that the application and affidavit showing probable cause need not follow the exact requirements of 2518 but should allege other circumstances more appropriate to domestic security cases; that the request for prior court authorization could, in sensitive cases, be made to any member of a specially designated court (e. g., the District Court for the District of Columbia or the Court of Appeals for the District of Columbia Circuit); and that the time and reporting requirements need not be so strict as those in 2518.
The above paragraph does not, of course, attempt to guide the congressional judgment but rather to delineate the present scope of our own opinion. We do not attempt to detail the precise standards for domestic security warrants any more than our decision in Katz sought to set the refined requirements for the specified criminal surveillances which now constitute Title III. We do [407 U.S. 297, 324] hold, however, that prior judicial approval is required for the type of domestic security surveillance involved in this case and that such approval may be made in accordance with such reasonable standards as the Congress may prescribe.
MR. JUSTICE WHITE, concurring in the judgment.
This case arises out of a two-count indictment charging conspiracy to injure and injury to Government property. Count I charged Robert Plamondon and two codefendants with conspiring with a fourth person to injure Government property with dynamite. Count II charged Plamondon alone with dynamiting and injuring Government property in Ann Arbor, Michigan. The defendants moved to compel the United States to disclose, among other things, any logs and records of electronic surveillance directed at them, at unindicted coconspirators, or at any premises of the defendants or coconspirators. They also moved for a hearing to determine whether any electronic surveillance disclosed had tainted the evidence on which the grand jury indictment was based and which the Government intended to use at trial. They asked for dismissal of the indictment if such taint were determined to exist.
Opposing the motion, the United States submitted an affidavit of the Attorney General of the United States disclosing that "[t]he defendant Plamondon has participated in conversations which were overheard by Government agents who were monitoring wiretaps which were being employed to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government," the wiretaps having been expressly approved by the Attorney General. The records of the intercepted conversations and copies of the memorandum reflecting the Attorney General's approval were submitted under seal and solely for the Court's in camera inspection. ...
I would affirm the Court of Appeals but on the statutory ground urged by defendant-respondents (Brief 115) without reaching or intimating any views with respect to the constitutional issue decided by both the District Court and the Court of Appeals.
[In other words, White would find that Congress has the power to restrict the use of surveillance as occurred in the Keith case, via the (presumably Constitutional) statute cited in the case.]
Summary of Truong at -> http://www.freerepublic.com/focus/f-news/1576467/posts?page=25#25
I don't see that as the same degree of incursion into the executive, as "the wall" (a creation of the executive to begin with, adopted by the court) was.
The court is attempting to protect its independence by not bootstrapping a search of unknown "pedigree" and "constitutionality" into a FISA warrant. If that sort of process is adopted, the government could conduct any search it wanted, without a warrant (not saying it is, BTW), then when it learns of any criminal intent thereby, could get a court to issue a warrant. From whence came the probable cause? Never mind that.
Given the small number of likely cases, I think the administration can afford to have the NSA terrorist surveillance cases handled one-by-one as they come up in court. There is a risk however, that the courts would post-facto invalidate the evidence or share it with the accused. I believe that that risk is what motivates Congress, the Courts and the administration to work together NOW, to insure that use of the information in the future is effective against the threat.
They are the single biggest donor to the demoncrats. Enough said?
I agree the intrusion is not as great, but I still think the court is wrong. If the President is within his constitutional and statutory authority in ordring the NSA surveillance, and he is, then the fruits of that surveillance are lawfully obtained and there is no valid reason to reject it as the foundation for a FISA warrant application. The only justification wold be the wall, which, as aforesaid, has been abolished. The US persons in question receive all the process that is due via the mechanism of the FISA warrant procedures. It's just too bad for them they got caught up in a foreign intelligence surveillance operation. It sucks to be a terrorist. Not saying you could prove a criminal case with the surveillance take, only that it ought to be admissible in the FISA warrant application process.
The FISA Court has demonstrated a repeated tendency to be too big for its britches. Reimposing the wall by judicial fiat after it was abolished by the Patriot Act is, in my view, reckless, obdurate and scandalous in the extreme.
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