WHAT IF WIRETAPPING WORKS?

tnr (really) ^ | 1 26 06 | Richard A. Posner

[ndt]

From: TITLE 50 > CHAPTER 36 > SUBCHAPTER I > § 1801

“United States person” means a citizen of the United States, an alien lawfully admitted for permanent residence (as defined in section 1101 (a)(20) of title 8), an unincorporated association a substantial number of members of which are citizens of the United States or aliens lawfully admitted for permanent residence, or a corporation which is incorporated in the United States, but does not include a corporation or an association which is a foreign power, as defined in subsection (a)(1), (2), or (3) of this section.

[ndt]

To answer your question, a citizen of the U.S. is always a U.S. person no matter where they are and would be provided constitutional protections in dealings with our government but other nations (for obvious reasons) are not bound to "give us our rights".

[loneroofer]

an alien lawfully admitted for permanent residence (corporation which is incorporated in the United States,

Perhaps if I phrase the question this way . Suppose I am in jail in Mexico on drug charges. Since I am a US citizen , should the US protect my right to a fair and speedy trial . No. By the same logic should I have the same expectations of privacy from any communication to a foreign country?

[ndt]

"Since I am a US citizen , should the US protect my right to a fair and speedy trial "

Got a story you want to share :)

No, when in a foreign country you are bound by the laws of that country. The U.S. government is not providing your trial, the Mexican government is and they have their own laws and protections. If for example, the Mexican government chose to allow your prosecution in the U.S. then yes, you would have those protections provided by the U.S. government.

"By the same logic should I have the same expectations of privacy from any communication to a foreign country?"

The Constitution is in effect in all dealings between the U.S. and it's citizens where ever they are.

[Boot Hill]

ndt:   "If the U.S. person is talking to a known terrorist abroad, that would be sufficient evidence to get a FISA warrant."

"However, because of the President's constitutional duty to act for the United States in the field of foreign relations, and his inherent power to protect national security in the context of foreign affairs, we reaffirm what we held in United States v. Clay, supra, that the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."

--United States v. Brown, 484 F.2d 418, 426 (1973)

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."

--U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)

"Prior to the enactment of FISA, virtually every court that had addressed the issue had concluded that the President had the inherent power to conduct warrantless electronic surveillance to collect foreign intelligence information, and that such surveillances constituted an exception to the warrant requirement of the Fourth Amendment."

--United States v. Duggan, 743 F.2d 59 (1984)

"The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information."

--In re Sealed Case, 310, F3d. 717, 742 (2002)

[ndt]

2 points for good HTML sills and 2 points for creative quotes mining.

"We agree with the district court that the Executive Branch need not always obtain a warrant for foreign intelligence surveillance."

You left out what followed not one paragraph later..

"Balancing individual privacy and government needs, the Supreme Court concluded that the executive must seek a warrant before it undertakes domestic security surveillance.

"...the President did have inherent [constitutional] authority to conduct warrantless searches to obtain foreign intelligence information"

It goes on to say ...

"The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable."

In other words, the president is still bound by the reasonableness clause. If the president were to conduct suvailance without a warrant he could be found to have violated the constitutional rights of the person spied upon. Note, "reasonable" does not refer to level of national threat, but to evidence of wrong doing. No evidence of wrong doing, no spying allowed.

"...the President may constitutionally authorize warrantless wiretaps for the purpose of gathering foreign intelligence."

Foreign intelligence yes, but if you bothered to read the sentence before that one you would see this.

"...in the area of domestic security, the President may not authorize electronic surveillance without some form of prior judicial approval."

[Boot Hill]

ndt:   "You left out what followed not one paragraph later...'the executive must seek a warrant before it undertakes domestic security surveillance."

Domestic intelligence surveillance is irrelevant to the current debate over the President conducting warrantless intercepts of foreign intelligence communications. Do you understand the difference?

ndt:   "If the president were to conduct suvailance without a warrant he could be found to have violated the constitutional rights of the person spied upon."

Incorrect, as the holdings in the four appellate cases cited in #25 plainly show, the President has the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

ndt:   "Foreign intelligence yes, but if you bothered to read the sentence before that one you would see this...'in the area of domestic security..."

Domestic intelligence surveillance is irrelevant to the current debate over the President conducting warrantless intercepts of foreign intelligence communications. Do you understand the difference?

[ndt]

"Domestic intelligence ..."

There is no question that the president has the power to spy on forign powers, nobody is questioning that. This is all about spying on U.S. persons, and unless those U.S. persons have been shown to be an agent of a foreign power, that is domestic.

The article above even goes the next step and tries to justify a blanket wiretapping of everybody, in hopes of finding somebody.

[Boot Hill]

ndt:   "This is all about spying on U.S. persons, and unless those U.S. persons have been shown to be an agent of a foreign power, that is domestic."

Demonstrably incorrect.

The difference between "domestic" and "foreign" national security intercepts has nothing to do with the point of origin, destination or intercpetion of the communication. Nor does it depend on whether either party is a U.S. citizen or resident. The difference between "foreign" and "domestic" national security intercepts, as the term is used by the courts and intelligence agencies, is the source of the threat, i.e., whether at least one party to the communication was acting as an agent of a foreign power.

That distinction was never made more clear than it was in the Truong case. Truong, a U.S. resident alien, and Humphrey, a U.S. citizen and an employee of the USIA, conspired to commit espionage by delivering confidential government documents to the communist government of Vietnam from 1976 to 1977. In this case, the court held that the intercepts did not require a warrant since both defendants were acting as agents of a foreign power and thus the intercepts were a legitimate exercise of foreign national security intelligence gathering.

Note that in Truong, both the origin and destination of the intercepted calls were within the United States. Note also, that both defendants were U.S. residents, and in Humphrey's case, a U.S. citizen, as well. Yet the court held that these were foreign national security intercepts.

Thus, your contention that in the present case of the national security wiretaps revealed by James Risen in the NYT, that they are "domestic" wiretaps is demonstrably untrue, they are "foreign" national security wiretaps.

[M. Thatcher]

deep in their heart, administration does not consider Arab/Muslims to be real Ameircan Citizens

What a crock. That's the kind of paranoid delusional ignorance liberals spew as easily as they breathe - because they are absent logic, facts, or truth.

[ndt]

"the difference between "domestic" and "foreign" national security intercepts has nothing to do with the point of origin"

I never said that it did, on the contrary, I stated that it had to do with status as either an U.S. Person or as an Agent of a Foreign Power, which it does.

" Nor does it depend on whether either party is a U.S. citizen or resident"

That is incorrect in so far as a U.S. citizen or legal resident is presumed to be U.S. Person unless domonstratably otherwise by acting as an Agent of a Foreign Power.

In the case of Truong, he enlisted a (unknown to him) CIA informant to carry classified data to the North Vietnamese government, thereby establishing himself as a "agent of a forign power". It was after this that the warrantless intelligence activities took place.

[Boot Hill]

ndt:   "I stated that it had to do with status as either an U.S. Person or as an Agent of a Foreign Power, which it does."

Good, then you agree that in the present case, we are dealing with foreign intelligence intercepts, and that the holdings of the Truong and In re: Sealed Case courts are controlling, in that the President does have inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

[ndt]

OK, I'm sick of typing U.S. Person, from now on it is USP

NOTE: All quotes below are from the Truong case

Taps on the phones of known international terrorists do not require a warrant, that is not at issue. When those taps intercept a third party, and if that third party turns out to be a USP, yes, a warrant becomes required for that conversation. It can be issued retroactively, and if that U.S. person is calling a known international terrorist, I can think of no reason why the FISA court would turn down that warrant.

The Truong case does not allow the president or his agents to conduct warrantless eavesdropping on USPs without reasonable evidence that they are acting as agents of a foreign power.

" Even if a warrant is not required, the Fourth Amendment requires that the surveillance be "reasonable."

A USPs name being in the phone book of a terrorist may be reasonable evidence of possible wrongdoing, or he might be the pizza guy. What it is not, is proof of being an agent of a foreign power. That would be a case that required a warrant, even for the president.

So, does the president have inherent power to conduct warrantless eavesdropping even when the subject is a USP and is not previously known to be an agent of a foreign power? Lets see what the Truong court had to say.

"Because the Fourth Amendment warrant requirement is a critical constitutional protection of individual privacy, this discussion should conclude by underscoring the limited nature of this foreign intelligence exception to the warrant requirement which we recognize in the instant case. The exception applies only to foreign powers, their agents, and their collaborators."

Yes, I guess I do agree with them. NO! the president does not have the power to conduct warrantless eavesdropping unless the target is already known to be an agent of a foreign power.

[Boot Hill]

ndt:   "Taps on the phones of known international terrorists do not require a warrant, that is not at issue."

Let me make some minor adjustments to that...

"Taps on the phonesintercepts of communications of known or suspected international terrorists do not require a warrant, that is not at issue."

ndt:   "When those taps intercept a third party, and if that third party turns out to be a USP, yes, a warrant becomes required for that conversation."

That is incorrect, as the holding in Truong makes abundantly clear. They specifically held that no such warrant was required. You're entitled to your own opinion, but not your own facts.

ndt:   "I can think of no reason why the FISA court would turn down that warrant."

FISA courts don't issue warrants. Nor do FISA courts even use the "probable cause" standard required for warrants.

ndt:   "The Truong case does not allow the president or his agents to conduct warrantless eavesdropping on USPs without reasonable evidence that they are acting as agents of a foreign power."

The Truong court never held any such a thing. The governments actions were done without any court permission, oversight or approval and were held by the court to be completely constitutional after the fact and after the trial.

ndt quotes Truong:   "Even if a warrant is not required, the Fourth Amendment requires that the surveillance be 'reasonable'."

Yes, and then the Truong court ruled on the reasonableness, saying:   "As the district court observed, the surveillance was nonetheless reasonable, and we agree." Notice, the court found it reasonable long after the fact and long after the trial and merely gave their stamp of approval to what the government had already done.

ndt:   "What it is not, is proof of being an agent of a foreign power."

When it comes to initiating foreign intelligence intercepts, "proof" is not the standard, nor is it "probable cause", all that the President needs is a reasonable suspicion that at least one individual that is party to a communication, is acting as an agent of a foreign power.

ndt:   "the president does not have the power to conduct warrantless eavesdropping unless the target is already known to be an agent of a foreign power."

Sorry, all the leading cases and four courts of appeal disagree with you and state emphatically, and without the limitation you dreamt up, that the President has the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information.

If you think you can find a case cite that agrees with your position, post it.

[ndt]

Yours are in italic, the Truong court is in bold italic

" That is incorrect, as the holding in Truong makes abundantly clear. They specifically held that no such warrant was required. You're entitled to your own opinion, but not your own facts."

Have you even read the case?

"First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators."

Not "suspected" not "probable", known.

" FISA courts don't issue warrants. Nor do FISA courts even use the "probable cause" standard required for warrants."

So which is it, they don't issue warrants or they use a different standard?

Are we even using the same acronym? You can read up on what they do here.

" The Truong court never held any such a thing. "

And I quote Q.U.O.T.E. from the TRUONG COURT

" Even if a warrant is not required, the Fourth Amendment requires that the surveillance be "reasonable.""

"First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators."

"Notice, the court found it reasonable long after the fact and long after the trial and merely gave their stamp of approval to what the government had already done."

It was reasonable because Truong had indited himself by working with a CIA informant, his status as a foreign agent was established BEFORE the eavesdropping.

"all that the President needs is a reasonable suspicion that at least one individual that is party to a communication, is acting as an agent of a foreign power."

Is that opinion or are you having trouble finding the quote for that one.

"Sorry, all the leading cases and four courts of appeal disagree with you and state emphatically, and without the limitation you dreamt up, that the President has the inherent constitutional authority to conduct warrantless searches to obtain foreign intelligence information."

Dremt up? I was quoting from the Truong case. They state emphatically? You mean like this.

"First, the government should be relieved of seeking a warrant only when the object of the search or the surveillance is a foreign power, its agent or collaborators."

or like this

"We thus reject the government's assertion that, if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment."

or maybe like this

"..we .. are convinced that the Fourth Amendment will not permit us to grant the executive branch more."

[ndt]

"That is incorrect, as the holding in Truong makes abundantly clear. They specifically held that no such warrant was required. You're entitled to your own opinion, but not your own facts."

Actually as for the second warrant for the third party, I will cede that point to you in regard to the Truong case.

[ndt]

"Notice, the court found it reasonable long after the fact and long after the trial and merely gave their stamp of approval to what the government had already done."

I do want to touch on this as well. That it was approved after the fact is meaningless. Had it been found to not be reasonable, the court would in all likelihood thrown out the convictions.

Also note that this predated FISA. FISA is the current law in this area and imposes limits that were not in existence at the time of the Truong case.

[Boot Hill]

ndt:   "Not "suspected" not "probable", [but] known."

Sorry, you're simply incorrect, neither the Truong court nor any other court to have ruled on the matter has ever once uses the word "known" as a requirement for subjects of surveillance as agents of a foreign power.

ndt:   "So which is it, they don't issue warrants or they use a different standard?"

Both.

ndt:   "Dremt up? I was quoting from the Truong case."

Yes, dreamt up, since none of those quotes you provided show the court requiring the subject be a "known" agent of a foreign power. They use no such word or language in limiting the scope of the President's authority.

Nor would it be logical to expect any court to impose such a standard of "known", since when the government initiates an investigation, by definition, the word "investigation" admits to much being unknown about a case.

[ndt]

"Nor would it be logical to expect any court to impose such a standard of "known", since when the government initiates an investigation, by definition, the word "investigation" admits to much being unknown about a case."

FISA is quite clear in the requirements for warrantless eavesdropping .

"Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for periods of up to one year if the Attorney General certifies in writing under oath that—"

1. the electronic surveillance is solely directed at—
   1. the acquisition of the contents of communications transmitted by means of communications used exclusively between or among foreign powers, as defined in section 1801 (a)(1), (2), or (3) of this title; or
   2. the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in section 1801 (a)(1), (2), or (3) of this title;
2. there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party; and
3. the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 1801 (h) of this title; and

Note that it is A, B and C, not either or. If they can't meet this requirement then they need a warrant (or if you prefer, a court order)

The whole point is that they are allowed to do so without a warrant if the targets are known agents of a foreign power, if there is any question, then they need a warrant. The A.G. has to certify under oath that they are in fact agents of a foreign power. There is no room for "might be", "we think they are".

[ndt]

"Yes, dreamt up, since none of those quotes you provided show the court requiring the subject be a "known" agent of a foreign power. They use no such word or language in limiting the scope of the President's authority."

There is good reason why the presidentially applied label of "national security" does not give the President free reign to bypass the fourth amendment and hence probable cause. Well summed up by Supreme Court Justices Douglas and Brennan in Katz vs. United States.

"Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate."