Posted on 11/19/2002 5:54:56 AM PST by KLT
Burning the Constitution
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Secret court OKs government spying on Americans
By REUTERS
Nov 19, 2002, 07:32
In a victory for the Bush administration, a secretive appeals court Monday ruled the U.S. government has the right to use expanded powers to wiretap terrorism suspects under a law adopted after the Sept. 11, 2001, attacks.
The ruling was a blow to civil libertarians who say the expanded powers, which allow greater leeway in conducting electronic surveillance and in using information obtained from the wiretaps and searches, jeopardize constitutional rights.
In a 56-page ruling overturning a May opinion by the secret Foreign Intelligence Surveillance Court, the three-judge appeals court panel said the Patriot Act gave the government the right to expanded powers.
Sweeping anti-terror legislation, called the USA Patriot Act and signed into law in October last year after the hijacked plane attacks, makes it easier for investigators andprosecutors to share information obtained by surveillance and searches.
In the May ruling, the seven judges that comprise the Foreign Intelligence Surveillance Court unanimously told the government it had gone too far in interpreting the law to allow broad information sharing.
The Justice Department appealed, saying the order limited the kind of coordination needed to protect national security.
Attorney General John Ashcroft hailed Monday's ruling and said he was immediately implementing new regulations and working to expedite the surveillance process.
"The court of review's action revolutionizes our ability to investigate terrorists and prosecute terrorist acts," he said. "This decision does allow law enforcement officials to learn from intelligence officials and vice versa."
FOURTH AMENDMENT ISSUES
Civil liberties groups, which had urged the appeals court -- comprised of three appeals court judges named by Supreme Court Chief Justice William Rehnquist -- to uphold the court's order, slammed the ruling.
"We are deeply disappointed with the decision, which suggests that this special court exists only to rubber-stamp government applications for intrusive surveillance warrants," said Ann Beeson of the American Civil Liberties Union.
The groups had argued that broader government surveillance powers would violate the Fourth Amendment which protects against unreasonable searches and seizures.
But the appeals court said the procedures as required under the Foreign Intelligence Surveillance Act were reasonable.
"We think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close," the judges wrote in their ruling, which was partially declassified and published.
"We, therefore, believe firmly ... that FISA as amended is constitutional because the surveillances it authorizes are reasonable."
Ashcroft said the government would uphold the Constitution. "We have no desire whatever to, in any way, erode or undermine the constitutional liberties here," he said.
The appeal is the first since the Foreign Intelligence Surveillance Act court and appeals court were created in 1978 to authorize wiretap requests in foreign intelligence investigations. Under the procedures, all hearings and decisions of the courts are conducted in secret.
The appeal hearing was not public, and only the Justice Department's top appellate lawyer, Theodore Olson, presented arguments.
Although the court allowed "friend of the court" briefs to be filed by civil liberties groups and the National Association of Criminal Defense Lawyers, since the Justice Department was the only party the ruling can likely not be appealed.
"This is a major Constitutional decision that will affect every American's privacy rights, yet there is no way anyone but the government can automatically appeal this ruling to the Supreme Court," Beeson said.
© Copyright 2002 by Capitol Hill Blue
I submit to you that Ben Franklin did not have the slightest concept of either the magnitude or the rapidity of the destruction that modern man can inflict. There was nothing in his frame of reference to compare.
First here's The Ruling (pdf)
From the ruling:
"There is no disagreement between the government and the FISA court as to the propriety of the electronic surveillance; the court found that the government had shown probable cause to believe that the target is an agent of a foreign power and otherwise met the basic requirements of FISA."
"Probable cause" is still the standard.
I suggest you read the opinion I posted above.
It's long but well reasoned.
FIRST the government must convince a judge beyond a reasonable doubt that the target is a foreign power or an agent of a foreign power.
FISA can not be used for other investigations.
For example: (from the ruling):
"FISA surveillance could not be authorized against an American reporter merely because he gathers information for publication in a newspaper, even if the information was classified by the Government. Nor would it be authorized against a Government employee or former employee who reveals secrets to a reporter or in a book for the purpose of informing the American people. This definition would not authorize surveillance of ethnic Americans who lawfully gather political information and perhaps even lawfully share it with the foreign government of their national origin. It obviously would not apply to lawful activities to lobby, influence, or inform Members of Congress or the administration to take certain positions with respect to foreign or domestic concerns. Nor would it apply to lawful gathering of information preparatory to such lawful activities. H. REP. at 40.
Similarly, 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."
In short- no. The protection against this is only that FISA can only be authorized for investigating foreign powers or agents. Information found- in the course of a FISA investigation- about other crimes is, by law, kept.
From the ruling: "Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information–such as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. § 1801(h)(3).)"
Well, let's test the context. Could he have guessed relative to his time?
In 1790 there were about 4 million Americans, and maybe 500 million world population.
Today we have about 300 million Americans, and 6 billion humans.
So are weapons more destructive per human than they were in his time? I think so. Are we asymptotically approaching some maximum suportable population? Going thataway, but not near there yet.
So that really doesn't answer the question, because I don't think his statement is modified by total population. In fact, I think he would underscore his concerns if he knew for each American in 1790 there would be almost 100 more in 1990 that the government might seek to control. I think the basis for his concern is the inherent danger of consolidating power of "security" in the government, rather than the distributed liberties of the people.
A consolidated government led by Xlinton, for example, can be subverted overnight. Distributed liberty depends on the virtue of an entire populace, which in America has always been vastly weighted toward the good, and in that case almost impossible to subvert.
If the infiltration, decay and dumbing down continues, and the people do not protect their own liberties, then they don't deserve anything, much less a secure state.
And this does not depend on the level of destruction man can command.
Thomas Jefferson would know what to do with foreign spies, saboteurs and terrorists. Allowing them to function without scrutiny under the guise of civil right is NOT what he would do.
"A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means."
"In all these cases, the unwritten laws of necessity, of self- preservation, and of the public safety, control the written laws of meum and tuum."
press-pubs.uchicago.edu/founders/documents/a2_3s8.html
Thomas Jefferson to John B. Colvin Sept. 20, 1810
So, what's the scoop with this?
They have to pay for cashing money orders or traveler's checks, so they invented a BS excuse.
http://press-pubs.uchicago.edu/founders/documents/a2_3s8.html
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