Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.
In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government's Constitutional authority to collect national-security intelligence without judicial approval. The case was not made public before yesterday, and its details remain classified. An unnamed telecom company refused to comply with the National Security Agency's monitoring requests and claimed the program violated the Fourth Amendment's restrictions on search and seizure.
But the Constitution bans only "unreasonable" search and seizure, not all searches and seizures, and the Fourth Amendment allows for exceptions such as those under a President's Article II war powers. The courts have been explicit on this point. In 1980, the Fourth Circuit Court of Appeals held in Truong that "the Executive need not always obtain a warrant for foreign intelligence surveillance." The FISA appeals court said in its 2002 opinion In re Sealed Case that the President has "inherent authority to conduct warrantless searches to obtain foreign intelligence information" and took "for granted" that "FISA could not encroach on the President's constitutional power."
FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed. Though the decision applies only to the stopgap FISA measure in place between 2007 and 2008, it sets a precedent.
For all the political hysteria and media dishonesty about George W. Bush "spying on Americans," this fight was never about anything other than staging an ideological raid on the President's war powers. Barack Obama ought to be thankful that the FISA court has knocked the bottom out of this gambit, just in time for him to take office.
Banner ad
Friday, January 16, 2009
Those warrantless wiretaps
In case you haven't heard, in a FISA court decision made in August last year and released now, the Bush administration has received judicial vindication for its program of warrantless wiretaps.
Labels:
War on Terror
Subscribe to:
Post Comments (Atom)
19 comments:
So why have a warrant process at all? Seems so much simpler to dump warrants altogether.
In fact, why have a constitution at all?
So president Bush took all that abuse, harassment and ridicule over this issue for NOTHING? They beat the crap out of him and he now deserves an apology! I doubt that will be happening soon.
So president Bush took all that abuse, harassment and ridicule over this issue for NOTHING? They beat the crap out of him and he now deserves an apology! I doubt that will be happening soon.
Gee, Bill if you feel that way why not move to say, Cuba?
Biddle,
The Constitution is not a suicide pact.
It does limit the government and no other document before or since has protected citizens as well as the Constitution but when political partisans cloak their agendas behind it for no other reason than to attack the President while he tries to defend this country we are all subjected to threats far greater than your imagined transgression of privacy.
p.s. - nice trenchcoat
fhrt -- don't understand your most recent comment. Can you explain it?
Again: if a warrant to spy on Americans is optional, why should anyone ever bother getting one?
I'm not one of the ditto-heads who repeat "if the president does it, it's legal". No one is above the law, certainly not an agressive little decider like the failure President Bush.
If Bill allows no exceptions then I'm driving at 100 mph the next time I see a radar wielding policeman on PCH. I expect Bill to pay the fine just in case SCOTUS doesn't agree with his take on warrantless searches.
Gosh - you mean Obama, the MSM and all those "Professional" journalists were lying to the American people?
I don't believe the situation you described has anything to do with spying on Americans, Pat.
Biddle,
"The Constitution is not a suicide pact." There, does it help if I use quotation marks? This is a common rhetorical phrase used by many people throughout the years.
When Lincoln suspended habeas corpus there were those that saw this measure undertaken by the President to be a greater threat to the Union than Secession but history has sided with Lincoln. While you're at it, check out Lincoln's opinion of the Copperheads and his suggestion for dealing with them. I wonder what Obama thinks of that?! I REALLY wonder what those people that keep making comparisons between Obama and Lincoln think of the latter's remarks about the Copperheads!
Anyway, I know what Jefferson thought about failing to defend the country in circumstances where a dangerous enemy has used the protections guaranteed to Americans by The Constitution: "To lose our country by a scrupulous adherence to the 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 ends to the means".
Can it be any clearer than that?!
As for spying on average Americans, don't be absurd. With unlimited resources that would be possible though it would still be a waste of time. Surveillance is going to be focused on individuals associated with known or suspected threat organizations and personnel. To do otherwise would simply be wasting time and money. Use your shiny head, Biddle, and try not to get worked up over unWARRANTED fears of people listening in on you. And try not to call bad people in Syria, Iran, etc.!
The uproar over what Bush did was based in the fact that the eavesdropping he ordered was illegal because it was prohibited by the Congressional statute called "FISA". Bush followers and the Bush DOJ, in response, claimed that (i) the President has the "inherent authority" under Article II to eavesdrop however he wants, regardless of what Congress says and (ii) the 2001 AUMF "implicitly authorized" eavesdropping in violation of FISA.
The FISA ruling had nothing remotely to do with those issues and nobody who is minimally honest and has a working brain will claim otherwise. The only two federal judges to address those questions in the past rejected Bush's theories and found the NSA eavesdropping program illegal. More importantly, the Supreme Court, in its 2006 Hamdan ruling that Bush lacked the power to order military commission without Congressional authorization, rejected the exact theories of broad executive power used by Bush to justify the NSA program.
In fact, Andrew McCarthy himself, in the wake of the Hamdan ruling, wrote an article for National Review arguing that the Supreme Court's Hamdan ruling constituted a definitive rejection of the Bush administration's excuses for violating FISA. The article was entitled: "Dead Man Walking: Hamdan sounds the death knell for the NSA’s Terrorist Surveillance Program":
The Supreme Court’s decision in Hamdan v. Rumsfeld is a national-security disaster. . . . Hamdan is a disaster because it sounds the death knell for the National Security Agency’s Terrorist Surveillance Program (TSP), . . .
On its face, Hamdan is a case about military commissions, not electronic surveillance. Yet, its facts are saliently analogous to those of the TSP. . . .
Under Hamdan’s logic, even if the president starts out with inherent Article II authority, that power — constitutional power — can now be rescinded by statute. . . .
In any event, if the Kennedy theory takes root — as it seems to have in Hamdan — it is impossible to see how the TSP survives.
In the wake of Hamdan, McCarthy then added about his defense of Bush's NSA eavesdropping program: "My own rule of thumb is to try to fight hard but fight fair, and admit when I’ve lost. I’ve lost."
That -- as anyone paying even minimal attention knows -- is what the NSA scandal has been and still is about: whether George Bush had the power to break the law, to violate FISA, in how he eavesdropped on Americans. The FISA decision they are celebrating today doesn't even touch on that question. How could it? Its only concern is whether the eavesdropping authorized by Congress transgresses Constitutional limits. Quite obviously, it has nothing to do with the power of the President to violate Congressional limits on eavesdropping.
But this is what has been happening with the FISA controversy -- and, for that matter, all of these lawbreaking scandals -- from the start. Right-wing Bush followers spout total falsehoods. Reporters who cover the story (such as Lichtblau), to say nothing of cable news talking heads, are too slothful, ill-informed and/or just dumb to understand why these right-wing claims are so factually false.
So they, at best, report what "both sides" are saying, or -- as will be the case here, I predict -- the immediate storyline that "the FISA court vindicated Bush's spying and ruled it legal" immediately settles in (it has the advantages of simplicity and power-worshipping, an irresistable one-two punch for Beltway media stars), and then, no matter how many facts are marshalled or energy is expended to uproot it, it stays entrenched forever, rotting away and further infecting our discourse and distorting our collective actions with regard to our government's chronic lawbreaking. Today's orgy of ignorance is a nice little case study of the last eight years.
"reb in NC" must be a Joe Biden relative, for (s)he posted large chunks of Glenn Greenwald's Salon.com 01/15/2009 article without attribution, and that's called "plagiarism."
"reb" probably quotes McCarthy because he's a conservative, but never mentions that Greenwald has several axes to grind with the Bush administration. His Wikipedia bio cites them in depth, so I won't waste Betsy's bandwidth copying them all here. But a couple give clues: J.D. from NYU Law School; specialized in constitional law and civil rights litigation until he gave that up and he started writing (for various publications, including Salon.com); describes himself as "openly gay" and divides his time between the U.S. and Brazil, and in his Wiki bio rants about Brazil (home of his partner) being more open to such liaisons than the U.S. Greenwald says he is neither conservatuve nor liberal, but nothing he has written that I could find is remotely conservative, and his Wiki entry admits he has been very anti-Bush administration for the past six years. To be fair, he has attacked liberals (e.g., Joe Klein of Time) for what he felt mischaracterized (toward a conservative side) Bush policies.
Greenwald also criticized an Obama cabinet choice that he felt had supported Bush administration interrogation policies.
Greenwald says he is aghast at the Bush economic policies, as well, and ballooning of the federal deficit, yet nothing I could find criticized any Democrat or liberal for their part(s) in that escalation. If he is as nonpartisan as he claims to be, we should soon see writings from Greenwald criticizing Obama's uber escalation of the Bush escalation, eh reb?
And as far as whether McCarthy (or Greenwald, for that matter) is correct about FISA or NSA, there are legal scholars, including SCOTUS justices, who disagree with them both.
Obama had some pro palestinian friends who had terrorist connections before the Democrat handlers got hold of him. No surprise, the media has completely ignored this.
I have always wondered who was afraid of getting caught.
Bill Ayers(homegrown terrorist) is a Democrat and good friend of Obama.
The new attorney general -Eric Holder pushed to have the members of the terrorist group FLAN(set off bambs in the US and killed Americans)released by Clinton.
Stopping the warrantless wiretaps may slow down the ability of law enforcement to deal in real time with threats coming from overseas.
I know President Bush and Vice President Chaney wanted to protect our homeland. They did just that and I appreciate it.
When radar first started to be in general use early court cases did indeed focus on whether a warrant was necessary to essentially spy on motorists. Up until that time policemen used markers on the road way and timed speeding cars thus they actually observed a crime rather than with radar relying on a device that did not differentiate between motorists.
So, I'm sorry, if you can't see the connection but the courts did hear the arguments and eventually did allow warrantless radar searches.
Pat Patterson,
You make a good point on the subject of monitoring traffic with radar. Aside from the people that get pulled over, there isn't that much complaint about radar. But when it comes to RED LIGHT CAMERAS there is no end of complaint about "Big Brother" in the District of Columbia and surrounding areas where they have been installed.
Where I live it is common to see half a dozen cars run a light during a single transition to red. You have to sit behind the line while looking at a green light in order for cars to clear the intersection in front of you. Accidents are frequent and injuries and death come with them.
I've always felt that having some of our best paid, trained, and equipped law enforcement personnel, namely state troopers, running speed traps was a waste of manpower and resources. Clocking every car on open stretches of highway and at the bottom of hills may be a fine way to generate revenue but I'd rather see them watching dangerous intersections, the parking lots of nightclubs, bars and restaurants, and school zones. We complain about red light cameras and sobriety checkpoints but having your movements monitored by radar gets a pass. Whatever.
Targeting the threat - not blanket coverage - is the only answer when dealing with issues of scale. Wiretaps on terrorist related communications allows us to focus our limited resources with agility and great effect.
"Wiretaps on terrorist related communications allows us to focus our limited resources with agility and great effect."
Right. The only problem arises when a failure president like Bush tries to do it by spying on all Americans, and without warrants. That is not just illegal, it is unconstitutional. Sorry for you if you can't see that.
Biddle,
The focused effort is precisely the point - ALL Americans are not targeted, only phone calls linked to suspected terrorists and their contacts. There are not enough people or systems to listen to every freaking phone call if they wanted too. You're starting to sound paranoid. (Maybe you should trade that trench coat in for a tinfoil poncho!)
Obama is onboard:
"Congress, Obama pass telecom wiretap bill"
http://www.examiner.com/a-1480732~Congress__Obama_pass_telecom_wiretap_bill.html
"Obama's wiretapping stand enrages many supporters"
http://www.iht.com/articles/2008/07/02/america/obama.php
Why are you against Obama?
Maybe Bill B fears that Angela Lansbury will show up to order Pres. Obama to reveal himself as a secret Republican? Maybe that's why the Obama circle has refused to allow any girls dressed up as playing cards to get within eyeshot of him.
Pat Patterson,
Could Hillary be the red queen?
Post a Comment