I posted awhile back on >the use of torture by the bush administration and talked about what other laws he possibly broke. HopsoneBen, a regular commenter here took exception and states I am just anti-bush and thats the only reason to point out the flaws in this administration.
The subject turned to the constitution and what laws Bush may or may not have broken involving things like torture and wiretaps. This post is about the wiretaps and the source is the former head of the justice department’s computer crimes unit, Mark D. Rasch, J.D.
Let’s talk about the wiretaps.
These [intercepts] are designed to monitor calls from very bad people to very bad people, according to the White House.
The people targeted (even U.S. citizens) are very bad people. And they are calling them very bad people. Which, more than anything else raises the question - why not get a warrant?
Whenever a US Citizen is suspected of something, the government must get a warrant to search their home, car, property, or to wiretap their phones or intercept their email, unless their is sufficient probable cause and a danger of immediate threat such as a police officer making sure you are not carrying a gun or a knife and he is concerned for his own personal safety. That’s the law.
That law protects all of us from illegal search and siezure.
Can the President of the United States, during a time of war (albeit a war on terror, or terrorism, or fundamentalism without any end in sight whatsoever) assert plenary executive authority to intercept communications, including e-mails and other electronic communications originating from the United States and from U.S. citizens without any kind of judicial warrant?
The U.S. Constitution
The first place to start any analysis of privacy, search, seizure and surveillance is with the U.S. Constitution itself. The Fourth Amendment provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, 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.”
That is how the law reads. It is pretty specific about searches on US Citizens and what is required in order to search them, their home, or their property.
Warrantless foreign intelligence collection has been an established practice of the Executive Branch for decades.
During the civil war, the government could lock up editors and publishers (that was, northern editors and publishers) for writing unfavorable articles, prevent newspapers from having mailing privileges, and even seize the property (slaves) of southerners (The Emancipation Proclamation) to cause hardship and economic suffering to the enemy.
You could punish as seditious libel that which would otherwise be free speech (the Alien and Sedition Acts passed under President John Adams), and lock up tens of thousands of U.S. citizens based upon nothing more than their ethnicity (the Japanese detention cases during World War II.)
Historically, the Courts have been reluctant to look beyond the declarations of the executive branch during time of war concerning the necessity of some acts to protect the American people.
Indeed, only when President Truman attempted to use the Korean War (a conflict?) as justification for seizing the steel mills did the courts deny his assertion of Presidential war power.
We are at war with Iraq. If these presidential or executive war powers were used against Iraqis who might be an enemy of the state, then nothing would be wrong with the use of such power.
In addition to the general war powers, the President and the Attorney General have relied on an act of Congress - the Authorization for Use of Military Force (AUMF) passed on September 18, 2001
Right after 911, when officially and legally, we had not declared war on any country as of yet.
This is important because the wiretapping laws make it a crime to engage in warrantless wiretaps unless otherwise authorized by statute.
The administration is reading the AUMF as the “statute” that authorizes the wiretapping, even while Members of Congress are emphasizing that they intended no such thing.
The AUMF empowered the President to “use all necessary and appropriate force” against “nations, organizations, or persons” that he determines “planned, authorized, committed, or aided” in the September 11, 2001, al Qaeda terrorist attacks.
It did not say anyone who is a US citizen and makes an overseas phone call. It said clearly, “If they were involved in the 911 attacks.
Much of what the NSA and the intelligence community does is in violation of some law somewhere. Indeed, much of what the military does is as well. When the NSA intercepts a communication from France to Afghanistan, it probably violates the privacy and electronic surveillance laws in both countries. When it installs alligator clips on a phone in Turkmenistan, it probably violates some local burglary or trespass law.
We know this. It’s no surprise and it’s an acceptable practice, by me as well, when those in the spy game use these tactics in other countries.
Espionage - the staple of the CIA - is a felony in almost every nation, and a capitol offense in the U.S.
It is a capitol offense to spy on US Citizens and not within the scope of any other than the FBI to investigate US Citizens suspected of espionage.
What the so-called NSA domestic spying scandal addresses is whether the process violates U.S. law.
In the December 2000 criminal prosecution of Osama Bin Laden for the first World Trade Center attack, the Court found that the Fourth Amendment warrant requirement did not apply to searches conducted on foreign nationals overseas - indeed, there was no mechanism for a judge in Manhattan to order a search or interception in Nairobi.
But that is overseas. So if the wiretaps were done by the U.S. government against foreign targets overseas, everything would have been ok.
But the revelations were that the government was targeting U.S. persons for intercepts based upon some “connection” to some overseas person.
The first assumption under federal law is that all wiretapping done in this country or wiretapping directed against U.S. citizens or permanent residents is illegal.
Three separate laws make it a crime to engage in electronic surveillance unless specifically authorized by statute.
>50 USC 1809(a); >47 USC 605; and >18 USC 2511;
There are several exceptions to this presumption, including;
Consent of one or all of the parties to the communication
Interception by the provider of telecommunications services in the ordinary course of business for certain purposes.
These are interceptions that do not implicate a reasonable expectation of privacy, and finally,
interceptions done pursuant to court orders. That is, orders by the judicial branch.
If President Bush is trying to get a law passed that retroactively makes it legal for the telecommunications companies to do this, then it can only be assumed it was illegal at the time they did it.
Even if you have good intentions in doing something and it breaks a law, you can go to jail. To think otherwise is just naive. I’m betting that if you go out and break a law and you had a really good reason for doing so, the government is not likely to try to pass a law that makes what you did ok. I’m betting they will prosecute you anyway.
But with the wiretapping, Bush and the telecommunications companies broke the law and are now asking for a law that makes what they did legal. Call it the Bush time machine. He did the same thing with the CIA prisons overseas. He denied they existed, then admitted they existed and that it was illegal, then in his own words, “dared” congress to make what he did legal so he can continue to do it.
He also did not adhere to the third exception, getting a warrant before wiretapping US citizens.
For interception of the contents of communications within the United States (whether among citizens or not) the government (typically the FBI) can get a warrant under the federal wiretap statute (called Title III) or the Electronic Communications Privacy Act.
Such warrants are difficult to obtain, must be supported by a finding of probable cause to believe that a crime has been or will be committed and that the tap will uncover evidence of that crime, and that reasonable steps have been taken to minimize the possibility that non-criminal conversations (or e-mails) will be intercepted and examined.
As part of the USA-PATRIOT Act, Congress authorized so-called “roving” wiretaps, which allow the FBI and not the Court to decide that a target was now using a different telephone, and to transfer the wiretap authority from one phone to another.
This resulted in reports of hundreds of erroneous wiretaps for the wrong telephone number, address, or email address.
But Title III wiretap orders apply only to findings of criminal activity. Now it is difficult for me to imagine a circumstance where someone could be part of a terrorist organization, planning or discussing terrorist activities and not be suspected of a crime. Terrorism is a crime. Murder is a crime. Destruction of property is a crime. Conspiracy is a crime. Money laundering, fraud, immigration fraud, false statements, counterfeiting - all of these are crimes.
In the recent Spielberg movie Munich, Mossad agents assigned to assassinate those responsible for planning the abduction and murder of Israeli Olympic athletes agonize over the legality of their actions, but ultimately focus on its necessity. Niceties of the law are rarely debated on the battlefield, and according to the current administration, the battlefield is everywhere and forever.
Declaring the war powers act something that can be used anywhere and anytime and even against US citizens is so dangerous everyone should be alarmed that our president wants to be all powerful in not only using it whenever or wherever he wants but to whomever he wants. All he has to do is jot their name down on a list and say they are a possible enemy combatant.
Absolute power corrupts absolutely. There has never been a law passed that someone did not misuse or use loopholes that were not inteneded to be there for their own personal gain or agenda. This law would be no different and even if you trust Bush with this power, do you trust every future president with the same power? Do you trust Hillary Clinton with absolute power? Obama? Edwards?
The Foreign Intelligence Surveillance Act (FISA)
Nevertheless, the executive branch has another mechanism for obtaining court orders to intercept communications (including e-mail) if the government doesn’t believe that it has evidence of a crime.
The Foreign Intelligence Surveillance Act allows the government to get an interception or seizure order (or a secret search warrant) by proving to a special super-secret court that the purpose of the surveillance is to obtain foreign intelligence, including (as amended by the USA PATRIOT Act) intelligence about terrorism.
FISA orders are directed at interceptions of “U.S. Persons” meaning U.S. citizens or permanent resident aliens, or U.S. corporations. Thus, if a U.S. person is the target of the surveillance, FISA by its terms, applies. If the U.S. person is not the target, but is otherwise intercepted, the surveillance is okay as long as there are appropriate minimizations procedures in place.
There was a court in place that would have approved warrants for the wiretaps. George Bush CHOSE not to get a warrant.
Prior to the enactment of FISA, domestic wiretaps were routinely done for “national security purposes” under nothing more than Presidential authority. Presidents from Roosevelt to Nixon ordered domestic wiretaps to protect national security.
Indeed, prior to the enactment of the FISA statute, there used to be an exception in the wiretap criminal statute that provided, “[n]othing contained in this [statute] shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities…”
The Nixon administration used this exception to conduct surveillance and interception without warrants on a host of domestic “subversive” groups. When this was revealed, Congress stepped in to limit the abuses by giving the President a mechanism for conducting foreign intelligence (and now terrorism) investigations by passing the Foreign Intelligence Surveillance Act (FISA).
But Bush chose to ignore that a new law had been passed to make sure that the ability to use wiretaps was not abused.
FISA and Presidential power
With the enactment of the FISA statute, this provision was changed to essentially read that FISA now “shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, and electronic communications may be conducted.”
That seems pretty clear doesn’t it?
Thirty three years ago the US government tried to rely on pure Presidential power to engage in domestic surveillance of domestic subversive groups without a warrant. The U.S. Supreme Court rejected the government’s contention that the courts were not prepared to deal with the sensitive classified information, could not make informed decisions about the threats to national security, and that the President had independent authority to order these wiretaps without the Courts.
Again, the courts decided that even the president needs to get a warrant. It’s pretty clear what the law says.
Even if the wiretaps were “reasonable” the Supreme court opined, they violated the Fourth Amendment.
So it doesn’t matter that you think what Bush did was reasonable in this dire time of terrorist threats. Your opinion and my opinion are not law. Even IF you think what Bush did was reasonable the supreme court says it is illegal according to our constitution.
Shortly thereafter, the same court found that even the Attorney General could be held liable for authorizing these “national security” wiretaps in that case against a group planning to bomb bridges and tunnels.
It was this precedent, establishing that a government official’s immunity for ordering such illegal wiretaps is only limited that Supreme Court nominee Samuel Alito sought to reverse when he was advising the Reagan Administration’s Justice Department.
Again, even IF you think this is a bad law, it is still the law. And no one, including elected officials is above the law.
Why not FISA for the NSA?
If these taps truly were aimed narrowly at “bad persons talking to bad persons” why couldn’t the NSA get a FISA warrant?
The President and Attorney General have both opined that it would be impossible to do so because of the “need for speed,” despite the fact that FISA allows warrants to be issued after the fact.
So Bush could have even gotten the warrant AFTER doing the wiretaps and still he CHOSE not to get a warrant. There is no excuse for this at all.
In addition, the President has stated that FISA was designed for “extended” surveillance - presumably implying that the wiretaps and email surveillances at issue were for a brief period of time. The administration has also asserted that they couldn’t ask Congress to amend FISA because that would have alerted our enemies to the fact that we were intercepting communications.
Yet Bush claimed he needed roving wiretaps because the enemy DID already know they were being intercepted and were using prepaid throwaway cellphones to communicate. So he wanted roving wiretaps because the enemy knew their communications were being intercepted and didn’t want to ask congress about revising FISA because he didn’t want the suspected terrorists to know we were intercepting communications? That makes no sense whatsoever.
Now anyone who has worked in a bureaucracy knows how hard it is to get anything done. Indeed, to get a FISA tap, the NSA agent monitoring traffic in the field (whether that is in Afghanistan, at an ISP, or in Fort Meade, Maryland) would likely have to get the approval of several levels of supervisors, and then lawyers for the NSA would get involved.
Then the NSA would have to involve the Department of Justice’s Office of Intelligence Policy and Review, and the Office of the Attorney General to review and analyze the FISA order, establish appropriate minimization procedures, and present the case for review by the FISA court. Finally, the FISA court would be convened and review, modify or approve the request for a wiretap. The wheels of justice grind exceedingly slow.
However, it was legal to do all of that AFTER doing the wiretap. They were not required to go through all of that BEFORE doing the wiretap.
I can’t imagine however, that the non-FISA “presidential authority” wiretaps would be much faster. NSA agents and supervisors, NSA counsel and the Department of Justice would all have to be involved in approving the wiretaps, and they would then have to be reviewed by the White House, and ultimately approved by the President himself. This may turn out to be a case where the need for “speed” is really a euphemism for the need to assert Presidential authority over the courts.
Exactly the intention of President Bush judging by his actions in other areas using executive authority.
So what is likely to happen? Already one member of the FISA court has resigned in protest, and Congress is likely to hold hearings not only on the specifics of the NSA wiretaps but also on whether FISA needs to be reformed in light of the government’s needs. If the President’s authority is, as he asserts, plenary during a time of war, then laws like the USA-PATRIOT Act would be unnecessary, and would in fact limit the President’s plenary powers. One thing is certain. The “war on terrorism” is a fundamentally different kind of war than, say the Civil War or World War II, new threats, new laws and new technology make for interesting times.
However, this new kind of war does not mean we throw away all of the laws we have or even just throw away the laws that the president doesn’t happen to like or finds inconvenient.
The Rest of The Story on wiretapping and presidential executive powers here
