Posted on 11/19/2002 5:54:56 AM PST by KLT
Burning the Constitution
--------------------------------------------------------------------------------
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
Yes, but while wording was unfortunate, the fact is that the 4th amendment only requires that searches be "reasonable", with out defining that term, and that warrents must be supported by probable cause. Probable cause is required by before the warrents under the FISA can be issued, and the court determined that searches conducted under the rules in question would be "reasonable", so the 4th amendment requirements were indeed met in the eyes of the appeals court. Furthermore one additional requirement, that is a probable cause, must be met, namely that there must be probable cause to believe that the persons to be searched or survielled are agents of a *foreign* power. That doesn't necessarily mean a govenment, but they can't be individuals acting on their own, nor can they merely be representatives or members of some domestic group.
As far as that goes, look at the "probable" cause that the BATF used to get the warrent for the Waco raid. The only facts in evidence even remotely indicative of (allegedly) criminal activity, were neighbors' reports of rapid fire coming from the Mt. Carmel Church and residence area.(when combined with the lack of a record of a tax stamp for full auto weaponry being on record for anyone there) Everything else in the justification for the warrent was completely lawful activity. But the judge, in a non-secret court, granted the warrent anyway.
The fact is, that like gun control, laws, including the Constitution, restricting the government only apply when good people are in control. When the crooks and thugs get in, anything goes, as we unfortunately know from the period Jan 1993- Jan 2001.
Sorry, we need migrants to pluck the lungs from chickens at mega poultry supply...and who would we give our money to when we purchase that "Slurpy" at 711?...If Bush lets these invading colonizers stay he has lost my vote.
They are here...and so are the people who invented "America's Goldstein"
He also had no concept of computers, the internet, TV or talk radio...so we should suspend the first amendment?...just a thought.
"Terrorist" anybody who could cause harm to another...think about that for awhile...
This whole discussion scares me silly. I thought conservatives were smarter than liberals. It seems that many of them have no concept of the need for firm constitutional limits. Folks, If you allow a bad law because it looks like a good idea at the time, it will stay with us and ultimately be enforced by your worst enemy. How would you like this in effect when Hitlery becomes Pres in 2008?
The constitution means what it says and must be enforced all the time or we are doomed. I am proud to be a Libertarian who understands this. I am really scared and disappointed that the conservatives do not.
Right. And the tooth fairy comes on Friday.
What about the right to privacy and the right to be free from unreasonable searches? Are those not essential?
They did invent him. Osama started out fighting with the Mujahaden and was trained by Pakistan's ISI and the CIA.
Even his religious beliefs were instilled by the CIA and ISI.
Since the judges see the "evidence" in secret courts and the alleged cause material is "national security" material and thus not availabe to the defendent or the public, how would you verify that they are not just rubber stamping prosecutor's requests?
Right. Like they shut down asset forteiture and gun control.
Some or most of the reasons for the warrant would probably be "sensitive", and the trial court would have to deal with it as it thought best. At the least it would mean that two seperate judges ( the FISA judge and the judge at the trial) reviewed the basis for the warrant in camera.
That's not good enough. There shouldn't be a precedent saying that a law just has to come close to meeting the requirements of the Bill of Rights. If a court is going to rule that a law is Constitutional, the judges should have to be willing to say that it meets the requirements of the Bill of Rights. Period.
"Close" only counts in horseshoes and hand grenades -- certainly not in a legal decision, in a country governed by the rule of law.
I disagree with this tradition; it is inherently unjust. Facts are facts--all should be admissible. The crime of illegal search should be prosecuted, but the facts must remain.
For example, the police conduct an illegal search of a person's house and find a diary. Within the diary is a detailed account of a crime providing details that only the killer could know. Under our current system, the diary would not be admissible due to the fact that the search itself was illegal. What the Patriot Act, and this ruling does, is remove that protection.
Good. Admit the evidence, prosecute the illegal search. But I think a wiretap is on or past the borderline of Constitutional protection. A phone call goes through a public network, as does e-mail; it is no longer in your home.
I see both sides of this arguement and beleive that a middle ground could be found. For instance, the evidence collected from a wiretap or other source should not be shared. However, if evidence of a crime was found during the monitoring, the intelligence gathering agency could then contact the FBI (or appropriate LEO) and act as an informant. "We have observed the following...." kind of stuff.
This would allow the LEO to then go and obtain a warrent and legally establish their own monitoring. Yes it is a bit of a delay and yes it would be double monitoring, but I'm willing to pay thoses costs in order to have a SOLID legal case and not trample on the rights of the people.
What does the average citizen have to fear from a wire tap or email monitoring? If they do nothing illegal, there is nothing there. This morning on NPR, the argument was made against this as a violation of citizens' privacy and the assistant US Attorney General Trinh (spelling?) said, "Why would we go after private citizens? We have enough work to do with suspects." One of the problems of intelligence work is the volume of data involved. Why would one add extraneous data?
None the less, I agree this could be misused by the government. I want a sunset clause on this law. The Constitution guarantees privacy as an implied right. Privacy should only be usurped in event of a national emergency, such as a war; like the one in which we are engaged. Even with a war, I would not allow home searches without a warrant. I barely tolerate phone tapping and email snooping. I can understand those who don't tolerate this.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.