Skip to comments.Bush was denied wiretaps, bypassed them (FISA Court denied them in unprecedented numbers)
Posted on 12/27/2005 10:47:23 AM PST by Pragmatic_View
WASHINGTON, Dec. 26 (UPI) -- U.S. President George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.
A review of Justice Department reports to Congress by Hearst newspapers shows the 26-year-old Foreign Intelligence Surveillance Court modified more wiretap requests from the Bush administration than the four previous presidential administrations combined.
The 11-judge court that authorizes FISA wiretaps modified only two search warrant orders out of the 13,102 applications approved over the first 22 years of the court's operation.
But since 2001, the judges have modified 179 of the 5,645 requests for surveillance by the Bush administration, the report said. A total of 173 of those court-ordered "substantive modifications" took place in 2003 and 2004. And, the judges also rejected or deferred at least six requests for warrants during those two years -- the first outright rejection of a wiretap request in the court's history.
The Constitution has a complex set of checks and balances. No single branch is unaccountable, somehow, to another; and all members are subject to removal if their conduct gets too far out of bounds.
But the guy who said "A Republic, maam, if you can keep it." was precient indeed. "We the people" are the fourth branch.
"we want to wiretap anyone calling from or calling into these X hundred phone numbers obtained from laptops and cellphones captured from terrorists, as well as other communications traces".
imagine you are a FISA judge and the executive comes to you with that simple one sentence request - do you grant or deny it?
The part about numbers obtained from "no question about it, terrorists" is a slam dunk approval. THe part about numbers "from other communications traces" needs some clarification, but if the knowledge presented by investigators creates probable cause, the warrant will issue.
let's say you deny it. what the hell do you expect the executive to do next?
It's the nature of the executive to take the action he deems appropriate, regardless of barriers - I expect he'd weigh the risks of action v. the risks of inaction, and act accordingly.
I wonder what the outcome of the Padilla case will be. That case is about military v. civilian detention and military v. civilian prosecution and sentencing.
Wiretaps is a fairly benign event in most people's minds, so it is a weak venue for probing the question of how much power an executive can have. More attention is paid when the stakes are incarceration. The executive argues that this being a time of war, and Congress having passed an "all necesary force" resolution, there needn't be Congressional or Court oversight of executive incarceration of suspected terrorists.
That action wouldn't cause me to lose any rights either, but it's treading in an area that makes me rather nervous.
My guess is that some transmissions are getting through. And history shows us that at some point, the bad guys will score another hit. Would you impeach President Bush for that?
"Why didn't Bush say this when he was justifying his actions? He seems to have no interest in defending himself."
Does the president work for himself?
I suggest you read the finding of the Secret Case from 2002 that has been quoted extensively here.
In it, the judges say specifically that FISA cannot limit the inherent authority of the President in the area of intelligence.
Congress cannot, by a law, overturn a constitutional power of the Executive Branch.
In a 56-page opinion overturning a May decision by the Foreign Intelligence Surveillance Court, 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.
and people are STILL arguing that it might not be legal?
I think some of these people just like to see their font in print.
Let me make this a bit more concrete. In WWII, it was understood when Allied troops entered Berlin, the war in Europe would be over. It was understood that the war in the Pacific would end with the surrender of Japan. Even in the Cold War, it was understood that it would be over with the end of Soviet Communism. In the war on terror, who exactly is going to sign the surrender agreement on behalf of the terrorists? What's the terrorist capital for US troops to overrun? As best as I tell, the war will be over when the President declares the war to be over and given that it is the President who is asking for expanded powers, I see a huge conflict of interest.
It's basically the same question, as what's the harm in convicting an innocent person or what's the harm of getting a bad tip and searching the wrong house. The freedom from the arbitrary use of government is a basic human right and we have a system which is intended to protect us from such intrustions. If you don't believe in basic human rights, there's little I can do to convince you of their necessity.
Correct, but warrantless wiretapping is never mentioned in the Constitution, it is not a a power granted by the Constitution.
Neither are GBU-38 JDAMs. Does that mean the President can't use them?
Collecting intelligence is as integral a part of 'using force' as air strikes. Does the President need permission to drop a guided missile on each new Al Qaida target we find? Did President Lincoln get court approval for each Confederate soldier that wound up getting killed or wounded?
When causing death is authorized, why is causing an unseen invasion of privacy such an issue? Innocent people are going to be affected either way. I don't see why we shouldn't err on the side of 'mistakes that can be fixed'.
If the War Powers Act is unconstitutional, then it would almost have to follow that the Posse Comitatus Act is likewise unconstitutional, because both are acts of Congress that purport to limit the President's discretion as commander-in-chief.
"Neither are GBU-38 JDAMs. Does that mean the President can't use them?"
If they are specifically not allowed by congress, then no.
The rest of your post is a strawman argument.
The War Powers act is aimed at presidential discretion in use of military force outside the territory of the United States, while Posse Commitatus is aimed at regulating the use of military power for civilian law enforcement within the territory of the United States.
IOW, the calculus is more complex than considering whether or not discretion as CinC is limited - the question involves at least "where," "under what circumstances" and "by what mechanisms" are the discretions to use military force limited.
That's why the FISA Act and the Patriot Act are careful to use the term of art "foreign intelligence information." THis is not the same thing as "intelligence" in general. At any rate, the "foreign" aspect of that is inserted to facilitate the statute tracking established case law and the historical understanding of the Constitution.
The President's power to unilaterally use force is strongest (least apt to be questioned) when directed to an extra-territorial enemy of the state. The War on Terror rasies some issues as to the limits of unchecked executive power that have heretofor not been carefully probed. IMO, it is unreasonable to expect the limits of conduct to be accurately described by statute, because the people have a more flexible notion of what it takes to "get 'r' done" than statutes can account for.
I actually think it is healthy to the Republic, in the long run, for some officials to overstep their bounds from time to time. That gives opportunities to exercize the corrective measures in the Constitution. If the system isn't exercised, it atrophies. See, e.g., the reluctance on the part of Congress to impeach judges.
If the people are okay with Kelo, Roe, and assorted other incursions, then that is the regulation they will get from their government.
That's the way I see it. Lots of (most) posters here casually use, in a mix and match form, the terms "illegal" and "unconstitutional." The ensuing disagreements between them are amusing inasmuch as they turn on the lazy phrasing.
I don't expect this to get to court because it'll be hard to find a party with standing. The "In re: sealed case" came about because the DoJ asked for a ruling from the FISA court, regarding data sharing within the law enforcement apparatus, with an eye on freely using surveillance information both for stopping (ostensibly foreign-controlled) terrorism events, and for criminal prosecution. The DoJ (and the FISA Review Court) fount that the lower FISA court's imposition of data sharing restrictions was an unconstitutional impingement on the executive.
I think the interesting arguments will involve the definitions (no doubt overlapping) of "foreign intelligence" and "domestic criminal activity;" and of "foreign agent" and "US person." The FISA Review court has some interesting assertions in those areas, e.g. ...
FISA surveillance would not be authorized against a target engaged in purely domestic terrorism because the government would not be able to show that the target is acting for or on behalf of a foreign power. As should be clear from the foregoing, FISA applies only to certain carefully delineated, and particularly serious, foreign threats to national security. ...This case leaves the question of constitutionality of the NSA wiretapping open.
Recent testimony before the Joint Intelligence Committee amply demonstrates that the Truong line is a very difficult one to administer. Indeed, it was suggested that the FISA court requirements based on Truong may well have contributed, whether correctly understood or not, to the FBI missing opportunities to anticipate the September 11, 2001 attacks. That is not to say that we should be prepared to jettison Fourth Amendment requirements in the interest of national security. Rather, assuming arguendo that FISA orders are not Fourth Amendment warrants, the question becomes, are the searches constitutionally reasonable. And in judging reasonableness, the instability of the Truong line is a relevant consideration.
The Fourth Circuit recognized that the Supreme Court had never considered the constitutionality of warrantless government searches for foreign intelligence reasons, but concluded the analytic framework the Supreme Court adopted in Keith in the case of domestic intelligence surveillance pointed the way to the line the Fourth Circuit drew. The Court in Keith had, indeed, balanced the governments interest against individual privacy interests, which is undoubtedly the key to this issue as well; but we think the Truong court misconceived the governments interest and, moreover, did not draw a more appropriate distinction that Keith at least suggested. That is the line drawn in the original FISA statute itself between ordinary crimes and foreign intelligence crimes.
It will be recalled that Keith carefully avoided the issue of a warrantless foreign intelligence search: "We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." 407 U.S. at 321- 22. But in indicating that a somewhat more relaxed warrant could suffice in the domestic intelligence situation, the court drew a distinction between the crime involved in that case, which posed a threat to national security, and ordinary crime. Id. at 322. It pointed out that the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes. Id.
The main purpose of ordinary criminal law is twofold: to punish the wrongdoer and to deter other persons in society from embarking on the same course. The governments concern with respect to foreign intelligence crimes, on the other hand, is overwhelmingly to stop or frustrate the immediate criminal activity. As we discussed in the first section of this opinion, the criminal process is often used as part of an integrated effort to counter the malign efforts of a foreign power. Punishment of the terrorist or espionage agent is really a secondary objective; indeed, punishment of a terrorist is often a moot point. ...
We acknowledge, however, that the constitutional question presented by this case whether Congress's disapproval of the primary purpose test is consistent with the Fourth Amendment has no definitive jurisprudential answer. The Supreme Courts special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.
Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the Presidents inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.
Accordingly, we reverse the FISA courts orders in this case to the extent they imposed conditions on the grant of the governments applications, vacate the FISA courts Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.
In Re: Sealed Case No. 02-001, 310 F.3d 717 (Foreign Int. Surv. Ct. Rev. 2002)
http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html <- HTML
http://www.epic.org/privacy/terrorism/fisa/FISCR_opinion.pdf <- PDF
http://news.findlaw.com/cnn/docs/terrorism/fisa111802opn.pdf <- Alt. PDF
I'm not sure why you persist in questioning my value system. I have asked a simple specific question that you are unable to answer without claiming other examples as the same thing. In the abstract sense I suppose a point is being made but it isn't very weighty given its disregard for proportionality and context, among other things.
Scalia apparently wants Padilla to receive a civilian trial. from what I have read, it wouldn't have mattered to Scalia if Padilla had been captured in Pakistan instead of OHare airport - he would still give him a civilian trial.
the train is going to come off the rails here pretty soon given where the judiciary wants to exert (or create) its authority in these matters.
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