Spy Powers: Can the president eavesdrop on private citizens without a judge's ok?

San Francisco Chronicle ^ | January 8, 2006 | Bob Egelko

[Coleus]

SPY POWERS

Can the president eavesdrop on private citizens without a judge's ok? The high court said 'no' in 1972 Wiretaps: Ruling requires warrants for spying at home

Thirty-five years ago, President Richard Nixon claimed constitutional authority to wiretap Americans' phone calls to protect national security without asking a judge -- the same assertion that President Bush is making today in the name of fighting terrorism.

The Supreme Court ruled unanimously against Nixon, saying the Constitution granted the powers he was claiming to judges, not presidents. If the current court eventually reconsiders that 1972 ruling, it may affect the fate of Bush's decision to authorize the National Security Agency to wiretap calls between Americans and alleged al Qaeda suspects in foreign countries.

Presidents have approved wiretaps without court orders since the 1940s, but the legality of the practice was thrown into doubt after the Supreme Court ruled in 1967 that electronic eavesdropping was a search, and thus covered by the prohibition on unreasonable searches in the Constitution's Fourth Amendment.

The case Nixon chose as a test of presidential authority arose during a turbulent period, in circumstances that must have seemed to favor the government: the prosecution of members of the radical White Panthers on charges of bombing a CIA office in Ann Arbor, Mich., in 1968.

The prosecution's evidence included phone conversations by one defendant, Lawrence "Pun" Plamondon, whom federal agents had taped without a warrant on the authority of Nixon's attorney general, John Mitchell.

In defense of its conduct, the administration submitted a sworn statement in 1971 from Mitchell saying agents needed to conduct the surveillance to protect the nation from "attempts of domestic organizations to attack and subvert the existing structure of the government.'' The administration said there had been 1,562 bombing incidents in the United States in

[thoughtomator]

When you find the phone number on a terrorist's cell phone records the search is no longer unreasonable.

Where were these critics when Hillary made off with 800 FBI files of US citizens (officeholders no less), not in a time of war, and in direct contravention to explict laws forbidding such access?

[TheDon]

The author spends 90% of the article discussing the wrong case, i.e. the need for warrants for domestic crimes. At the very end of the article the author finally gets around to discussing the need for warrants for foreign enemies operating on our soil in a time of war. Of course, "domestic" spying fits the Rats meme.

[Man50D]

Thirty-five years ago, President Richard Nixon claimed constitutional authority to wiretap Americans' phone calls to protect national security without asking a judge -- the same assertion that President Bush is making today in the name of fighting terrorism. The Supreme Court ruled unanimously against Nixon, saying the Constitution granted the powers he was claiming to judges, not presidents. If the current court eventually reconsiders that 1972 ruling, it may affect the fate of Bush's decision to authorize the National Security Agency to wiretap calls between Americans and alleged al Qaeda suspects in foreign countries. Presidents have approved wiretaps without court orders since the 1940s, but the legality of the practice was thrown into doubt after the Supreme Court ruled in 1967 that electronic eavesdropping was a search, and thus covered by the prohibition on unreasonable searches in the Constitution's Fourth Amendment.

One little factoid left out of this article is that this applies to civil matters not enemy combatants during a time of war. We are at war. The Constitution does not apply to enemies who seek our destruction.

[claptrap]

They can listen to whatever they want whenever they want,
as far as Im concerned.

[Waco]

Yes, IF, HER name is Clinton!

[Diana in Wisconsin]

If President Bush wants to listen in on any of my phone conversations, I suggest he tune in around 6pm on any Friday night. We'll either be ordering pizza or Chinese food, and we can order extra for he and Laura. Y'all come!

And my Mom usually calls me to complain about her life between 9 and 10 am on Tuesdays and Thursdays. Sometimes Saturdays, if she wants me to take her to the grocery store. And I just want to state for the record that I have absolutely NO problem wearing a wire when I'm with her...

Oh, and my library card access number is 29405004999677 and the PIN is 3424 if that helps keep us all safe. ;)

(Just how retarded are the Dims? Their mental illness and paranoia knows no bounds.)

[jamaksin]

Lest we forget ... there was a FL couple would listened and recorded a cellular phone conversation with Newt and ...

That recording made its way to a US Congressman from Washington State who gave it to the press.

Ain't no buddy went to jail over that ... Nothing there ... move along. A felony was very loose under l'Reno.

[lepton]

In defense of its conduct, the administration submitted a sworn statement in 1971 from Mitchell saying agents needed to conduct the surveillance to protect the nation from "attempts of domestic organizations to attack and subvert the existing structure of the government.''

Whereas the current monitoring of signals is in regards FOREIGN organizations, and further that the communications are leaving the country...or do you have something new?

[jamaksin]

Agreed ... but a minor problem ... no formal Declaration of War is to be seen. War Powers Act is close, but it is not the "real" thingy.

[joseph20]

Can the president eavesdrop on private citizens without a judge's ok?

If you collaborate with terrorists, then you are no longer considered a "United States person". You are considered an "Agent of a foreign power", as defined under Section 1801, subsection(b)(2)(C).

[Man50D]

Agreed ... but a minor problem ... no formal Declaration of War is to be seen. War Powers Act is close, but it is not the "real" thingy.

You are forgetting or are not aware of the joint resolution that was passed by Congress (H. J. RES. 114) on October 10, 2002. The resolution is titled

"To authorize the use of United States Armed Forces against Iraq."

It also states

Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities and funding requested by the President to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;"

Note the word war is used in the joint resolution. This is a declaration of war. Therefore we are at war. I suggest you read www.yourcongress.com the resolution.

[Coleus]

thanks for the link

[spintreebob]

The right of the people to be secure in their persons, houses, papers, and effects

The Supremes have consistently held from the 1920s to the present that the radio-waves belong to the public and the public has the freedom to listen. Public radio-waves do not belong to the person using them. Nobody has a reasonable expectation of privacy. That covers passive radar detectors that listen to the police radar (But not necessarily active ones that send false signals back to the police.) It covers cell-phones like that of the politician visiting Florida and heard on a Radio Shack scanner. That covers phone calls on relayed on micro-wave and bouncing off satellites. Should that Supreme Court precedent be overturned?

against unreasonable searches and seizures, shall not be violated

Is it unreasonable to eavesdrop on a known member of Al Kaida? A suspected member of Al Kaida? It is the job of Congress to define what is reasonable and what is unreasonable. That should be done by a law that automatically sunsets every 10 years. Congress is derelict in its duty in not defining what is reasonable and what is unreasonable.

and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Again, it is the job of Congress to define probable cause. Congress is derelict in its duty.

Note that there is no prohibition against reasonable searches. Thus the police do road checks for drunk drivers and people not wearing their seatbelts. The courts have determined those checks to be reasonable and thus do not need probable cause. I do not think they are reasonable. But I've been over-ruled.

[jamaksin]

Well, almost. You have missed my point ...

Difference:

Declaration of War ... Wilson and FDR asking Congress for a declaration of war. In each case, one negative vote, same person (a pacificist) each time.

War on Terrorism ... A metaphor much like "War on Drugs" or "War on Poverty" - of much lesser weight than the "true" declaration of war above.

For example, was the Korean War a war ... nope, it was a "police action" ... VietNam ... Bosnia ... , etc. None had a "true" [viz., Congressional vote] declaration of war authorizing spending America blood and treasure, and yet it was done.

So, my question is - Why "War Powers Act" (your Resolution) and not Declaration of War? Answer - it is like the Congressional Military Base Closure Committee - politics!

[spintreebob]

You've hit the nail on the head. Congress, especially the Senate, is filled with spineless sychophants who lack the courage to even stand up to their own staffers.

[Man50D]

Well, almost. You have missed my point ... Difference: Declaration of War ... Wilson and FDR asking Congress for a declaration of war. In each case, one negative vote, same person (a pacificist) each time. War on Terrorism ... A metaphor much like "War on Drugs" or "War on Poverty" - of much lesser weight than the "true" declaration of war above. For example, was the Korean War a war ... nope, it was a "police action" ... VietNam ... Bosnia ... , etc. None had a "true" [viz., Congressional vote] declaration of war authorizing spending America blood and treasure, and yet it was done. So, my question is - Why "War Powers Act" (your Resolution) and not Declaration of War? Answer - it is like the Congressional Military Base Closure Committee - politics!

My post is right on point. You failed to at the very top of the resolution is the phrase "Iraq War Resolution. Congress acknowledges this is war and accoridngly gives President the same authority to use the military and fight the enemy just as Congress did with Presidents Wilson and President Roosevelt.

The war on terrorism is not merely a metaphor. There is a major difference between the first term and the latter two. Those criminals who deal with illegal drugs do not have the intent of destroying the United States. No one deliberately creates poverty to destroy the United States. The terrorists sole purpose is to destroy the United States. We were attacked on our own soil by an enemy who wants to destroy us and the result was the deaths of three thousand Americans. Fewer people died during the attack on Pearl Harbor on December 7, 1941 and no one questioned this was an act of War before President Roosevelt and Congress addressed it the next day.

You are splitting hairs. Your attitude jeopardizes this nation's security and is exactly how the terrorists hope all Americans will think because it make their goal much easier to achieve. Tell the loved ones of those three thousand Americans who died on 9/11/01 they are merely metaphors and not victims of war.

[BlackbirdSST]

Where were these critics when Hillary made off with 800 FBI files of US citizens (officeholders no less), not in a time of war, and in direct contravention to explict laws forbidding such access?

FReerepublic was flooded with such critics. Surprisingly absent today. How about "We the people" listen in on Politicians phone calls and emails? Turn about being fair play and all. Think we'd be amazed, or horrified? Blackbird.

[BlackbirdSST]

Nobody has a reasonable expectation of privacy.

Are you a Judge Alito fan? He states clearly that there is a Right to Privacy in the Consitution, when he was being probed on abortion. Just curious. Blackbird.

[Man50D]

You've hit the nail on the head.

Jamaskin missed it by a country mile. The fact that you compare the acts to destroy the United Stated by an enemy who seeks our destruction to a civilian matter of setting up check points to stop drunk drivers illustrates the point you clearly do not understand the situation. The big difference is drunks are not trying to destroy the U.S.!