Posted on 02/03/2006 7:41:31 AM PST by Brilliant
The ABA is expected to weigh in on the hot-button issue of domestic surveillance, an issue stirring heated debate throughout the nation.
ABA President Michael S. Greco assembled the new task force of lawyers, all with significant intelligence experience, in mid-January. The task force will examine the legal issues surrounding the federal government’s surveillance of Americans inside the U.S.
Greco has asked the new group to prepare a preliminary report with recommendations for the House of Delegates for the ABA Midyear Meeting in Chicago on Feb. 13.
"Recent revelations about the National Security Agency’s domestic surveillance program remind us that we must continually and vigilantly protect our Constitution and defend the rule of law," Greco said in his letter appointing the new Task Force on Domestic Surveillance in the Fight Against Terrorism.
Greco says he and the task force are approaching the domestic surveillance issue “with an open mind.” But he says the issue is so important to Americans in general that the ABA has to at least consider the matter as soon as possible.
When The New York Times revealed the National Security Agency’s domestic spying program late last year, Greco says, “so many people throughout the country expressed shock and incredulity that this was going on.”
“And when the president stated that he has the power to do this and so many legal scholars around the country disagreed with that,” Greco says, it became clear to him that the ABA has an “obligation to educate the American people what the issues are.”
If the task force report and recommendation lead the ABA to take a policy position on the issue, Greco says it will then be the ABA’s obligation to protect Americans and the Constitution.
“It’s really the role of lawyers in our third branch, the judicial branch, to ensure that the separation of powers doctrine which has served our democracy well for two centuries continues to be strong,” Greco says.
Chair of the task force is Miami lawyer Neal R. Sonnett, who also heads the association’s Task Force on Treatment of Enemy Combatants.
The task force is a who’s who of the intelligence bar and includes former FBI Director William S. Sessions; Stephen A. Saltzburg, National Institute of Military Justice general counsel; and Suzanne E. Spaulding, a former CIA assistant general counsel. Spaulding has served as executive director of two congressional commissions: the National Commission on Terrorism and the Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction.
Advising the task force are Harold Hongju Koh, dean of Yale Law School, and Elizabeth Rindskopf Parker, dean of the McGeorge School of Law at the University of the Pacific in Sacramento, Calif. Parker’s government service includes stints as general counsel for the NSA and CIA and as legal adviser for the U.S. State Department.
Sonnett, a former federal prosecutor now in private practice in Miami, is the ABA’s go-to person of late to help the bar navigate weighty legal policies involving war powers, executive authority and civil rights.
In 2002, Sonnett was chosen to chair the Task Force on Treatment of Enemy Combatants. Later, then-president Dennis W. Archer chose Sonnett to represent the ABA as an observer during military tribunals held at the U.S. military base at Guantanamo Bay, Cuba. Sonnett, who attended preliminary hearings in 2004, expects to observe tribunal hearings in March and issue a report not long after.
The ABA House of Delegates has adopted two task force resolutions. One calls for enemy combatants to have access to judicial review and legal representation. Another says civilian defense counsel representing enemy combatants before military commissions should have adequate opportunities to provide "zealous and effective assistance."
In his current role, Sonnett and the task force will work quickly to review legal and constitutional issues surrounding the NSA’s domestic surveillance program, which includes warrantless surveillance of Americans suspected of communicating with individuals associated with terrorist groups.
Specifically, Sonnett says, the task force will examine whether NSA activities complied with the Foreign Intelligence Surveillance Act and the secret court process that FISA established to provide a measure of judicial oversight. In addition to compliance issues, Sonnett says the task force will look at whether Congress’ authorization of use of military force by President Bush "justified going around the law."
"We’re examining all the arguments made by the administration to justify the program," Sonnett says.
Sounds like a leftwing conspriracy in the works here by the ABA's liberal propaganda department.
“It’s really the role of lawyers in our third branch, the judicial branch, to ensure that the separation of powers doctrine which has served our democracy well for two centuries continues to be strong,” Greco says.
Many, many lawyers (including this one) don't belong and don't contribute to this self-important, left-wing political advocacy group disguised as a professional organization
The only reason I'm a member is that I've got to be in order to get their cheap life insurance.
hmmm...maybe I look into that :)
The ABA is a close relative of the rabidly leftist ACLU and is probably doing this to try to make up with the looney left after giving Alito a "well-qualified" rating. What a bunch of morons.
As an aside, they never ask my opinion on political issues. They are a dictatorship, as far as I can tell.
I still belong to the ABA, but I confess I don't know what benefit I get from it, other than being a contrarian to many of their (our?) positions.
I have little doubt where the ABA will come down on this-- when your only tool is a hammer, everything looks like a nail. Problem is, this is WAR. The usual legal niceties do not apply.
I think the ABA is really concerned that American lawyers (such as Lynn Stewart) may have been wiretapped while receiving calls from terrorist clients overseas. Why, that's a violation of attorney-client privilege (and we all know that's in the Constitution somewhere!).
The only reason I do business with the ABA is for publications. I like the Asset Protection teatise (don't remember the title off hand). Also, the attorney I work for as of counsel just wrote a book on charitable planning that the ABA will release this month (I hope) I'll pick-up a copy of that as well, but otherwise, I stay away!
As Mark Steyn pointed out in a recent interview, a domestic phone number is not assurance that the person who answers is a U.S. citizen...
The president's constitutional war powers were debated and defined in the convention in 1787:
"FRIDAY AUGUST 17th. IN CONVENTION
...Mr. MADISON and Mr. GERRY moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks.
Mr. SH[E]RMAN thought it stood very well. The Executive shd. be able to repel and not to commence war."
The vote was 7 to 1.
I repeat, it is NOT a DOMESTIC spying issue, but the media cannot possibly let loose of this headline.It is intercetption of INTERNATIONAL traffic only - no one is intercepting "inside the US" calls without warrants.
I think you're missing the distinction between "domestic" and "foreign", as they pertain to the present matter involving intelligence gathering.
The difference between "domestic" and "foreign" national security intelligence intercepts has nothing to do with the point of origin, destination or interception 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, or on the behave of, 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.
(p23185: I pinged you only because of your expressed interest in the matter.)
I would argue that "war" has nothing to do with it, because the numerous appellate court cases that concluded that "the President had the inherent [constitutional] power to conduct warrantless electronic surveillance to collect foreign intelligence information", never once predicated their conclusions on the existence or absence of a state of war.
Rather, they relied on the President's authority as the nation's sole representative in matters of foreign affairs and his duty to protect the national security.
See for instance,
United States v. Brown, 484 F.2d 418, 426 (1973)
U.S. v. Truong Dinh Hung, 629 F.2d 908, 913 (1980)
United States v. Duggan, 743 F.2d 59 (1984)
In re Sealed Case, 310, F3d. 717, 742 (2002)
Guess I find this fact rather amazing. Until now I had previously known NSA only to intercept "international traffic" if one side on connection had to be outside the US. In fact Pres GWB stated that in one of his recent speeches. However, as you point out the courts have apparently allowed for GWB to intercept inside US comm traffic as long as it is "foreign national security intercepts". I guess I now understand why the 4th amender's are so upset. Regardless of the courts interpretations (past and future) I still believe GWB is doing the correct thing on WOT. Now I wonder if Toon and Carter were intercepting inside US traffic (other than Echelon and Carnivore)? Was Truong case before GWB Presidency?
Don't let anyone try to sell you that bill of goods, note the dates on the cases cited at the bottom of #14, all but one of them are 20 to 30 years old. This issue was settled decades before Bush became President.
Much of that "upset" is do to a layman's faulty understanding of just what the 4th Amendment protects. Even by its bare words, the 4th only protects against unreasonable searches, not warrantless searches. Now it's true that the courts have held that in almost all cases, that means a warrant is required. But there have always been exceptions to that where the courts have held that for a very narrow set of special circumstances, a search can be "reasonable", absent a warrant. The present case is just such an exception.
1980.
ABA Watch
Barwatch Bulletin
February 12, 2006
ABA MIDYEAR MEETING DAY ONE
--Greco cited a poll conducted by Harris Interactive and commissioned by the ABA, which suggests that "77 percent of Americans reject the president's claim that he alone has the power to suspend constitutional freedoms without any check or balance. Of that number, 52 percent said that in the fight against terrorism, the President of the United States should not be able to unilaterally suspend constitutional freedoms. And an additional 25 percent said that the president can do so only with the authorization by a court of law or Congress."
--Greco said that he was "heartened" by these results and does support the "aggressive deterrence of terrorism," but he believes "our laws and our Constitution give our government ample power to act swiftly in times of danger, while also protecting our basic freedoms. It's very encouraging that Americans understand what's at stake, and insist on preserving that balance."
--President Greco then detailed the findings of the ABA Task Force on Domestic Surveillance in the Fight Against Terrorism, a "bipartisan group" that he appointed in January to "explore the very troubling constitutional issues raised by unsupervised domestic eavesdropping." A recommendation prepared by the Task Force will be one of many considered by the House of Delegates on Monday.
Here are some of the Task Force's findings:
--- "America has a system for security-related eavesdropping that works. The president cannot indefinitely ignore the system. He must respect the roles of Congress and the judiciary in protecting national security."
---"The President can , in moments of extreme emergency, take extraordinary actions to protect the American public-a power granted under his or her capacity as commander in chief." However, as time progresses, "the president must seek authority for such actions from Congress-just as other presidents have historically done."
---"Domestic eavesdropping must continue to be done within the framework of the Foreign Intelligence Surveillance Act. . . . In cases where this law has not kept up with changing threats. . .the president should ask Congress to amend it. Indeed Congress has already amended this law four times since 9/11, and has consistently shown itself willing to adjust the law to protect American's safety."
Referring back to the Harris poll, Greco said, "Average Americans and legal scholars alike agree that the awesome power of government to penetrate citizens' most private communications must not be held in one set of hands. To prevent the very human temptation to abuse this power, there must be checks and balances, in the form of oversight by courts and Congress."
Greco "reject[s] the false choice that is being offered to Americans, [that] they must give up their liberties to have security."
Greco closed by saying: "This is the second time in a year that we are seeing a serious challenge to the separation of powers. Last year, our federal judiciary came under attack from some in Congress, who threatened impeachment and funding cut-offs to force judges to toe a certain ideological line." "As the domestic surveillance issue shows, when people don't understand their rights, it's easy for others to take those rights away. An educated and engaged public is the best defense of our nation's freedoms."
Some of the conversations between Taney and Lincoln were quite poignant given the current situation in the world. Alluding specifically to the issue of Hamdi v. Rumsfeld (issue of U.S. Citizen held as an enemy combatant) and detainees at Guantanamo Bay, but referring to the Merryman case, Taney said that the suspension of the writ is in the list of prohibited powers unless the safety of the public requires it. By refusing to agree to Taney's request to produce Merryman, Taney argued that Lincoln's actions would have the effect of "a slippery slope that leads to despotism and tyranny. Tyrants want to see us fail; it would justify their tyranny." Lincoln declared that there is "a compelling national interest in this matter," and that "I have exercised a privilege."
Professor Lockwood opened the discussion after the play by stating that "the difference between countries with good human rights records and those with bad ones is an independent judiciary." He asked the audience what the legal status of the war on terrorism was. He contends that it is different from the past because much of its focus is on individuals and not foreign nations. Referring to actions taken by President Bush, Lockwood said: "He essentially created a no-law zone in Guantanamo, where the U.S. Constitution does not reach." "He has the ability to keep them there indefinitely."
However, Professor Lockwood noted that the military commission created by President Bush to determine the status of the prisoners is not unlike the situation presented in Ex Parte Quirin, 317 U.S. 1(1942), "a habeas decision where Supreme Court upheld the conviction of eight Nazi saboteurs, apprehended in the U.S., by a military tribunal."
When asked about the current FISA situation, Professor Lockwood said: "There should be concern about giving the power of eavesdropping solely to the Executive Power."
I quit the ABA after the Bork debacle and joined the Federalist Society, where real lawyers are members and I don't have to listen to a bunch of left-wing dribble!
ABA Watch
Barwatch Bulletin
February 15, 2006
ABA MIDYEAR MEETING HOUSE OF DELEGATES REPORT
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