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| 5/24 |
| 2006/1/23-24 [Politics/Domestic/President/Bush, Politics/Domestic/911] UID:41486 Activity:moderate |
1/23 http://www.talkingpointsmemo.com/archives/007276.php http://powerlineblog.com/archives/012770.php Who to believe? Can you start tapping and then have 72 hours to get retroactive FISA approval (URL 1), or does the attorney general need probable cause before even beginning to tap (URL 2)? Note Gen. Hayden today went with URL 2. \_ But they wouldn't have even done #1 \_ URL 2 says you can't do #1 without the attorney general establishing probable cause first. \_ URL 2 is disingenuous.. "We don't actually know how to fill out a warrant application, so we shouldn't have to" is a _stupid_ argument. \_ The core of the argument is that Gen. Hayden went outside of FISA to do "reasonable basis" wiretaps (calls going to / coming from suspected Al Qaeda members / affiliates), whereas FISA required "probable cause" (we have a credible source or evidence obtained through other legal means that person x has committed or is committing a criminal act) required to even begin wiretapping. Note that, if you go outside FISA, you need very little other than some NSA person saying that one end of the call may be coming from an Al Qaeda member / affiliate. "reasonable basis" << "probable cause" link:tinyurl.com/bkvuf (nytimes.com) \_ Unfortunately there's that pesky little thing called the constitution. link:tinyurl.com/bkvuf (nytimes.com) \_ Then you go back to: They could do it outside of FISA becuse the resolution passed by Congress gave Dubya the power, and also through his role as "unitary executive" (a power granted by the Constitution according to Dubya's people). \_ "could". That's the claim. The congressional research service said they can't. \_ Thanks for pointing that out. Here's the URL: http://tinyurl.com/9nosv (Wash Post) \_ [ I have not yet taken Crim Pro, but from what I understand ] The USSC has held that a wiretap is a search w/in the meaning of that term under the 4th amend. Thus a warrant to wiretap cannot issue w/o a showing of probable cause. The probable cause showing must relate to the time the search is INITIATED; evidence found after the search cannot generally be used to est. probable cause. The FISA procedures allow the AG to request the warrant upto 72 hrs after the tap is started, BUT the AG must still prove that probable cause existed at the time the wiretap was initiated. Re the assertion of unitary power to wiretap - the relevant USSC cases \_ People need to start saing that Dubya is usurping "probable cause" for unreasonable searches in the 4th Amendment, and this will promptly throw out Dubya's "unitary executive" and Congressional authorization arguments. Re the assertion of unitary power to wiretap: The argument that Congress implicitly gave the Pres. this power runs into the Marbury issue; Congress cannot give gifts that it doesn't have the power to confer - arguably a complete waiver of the 4th amend. warrant requirement is beyond Congress' power. If such waiver of the FISA is w/in Congress' power, then the Pres. will probably win this under either Curtis Wright or Youngstown. Curtis Wright "one voice" in foreign affairs is probably the better argument b/c in ever case the purpose of the wiretaps were to stop terrorism by international forces, which is a foreign affairs issue. \_ Well, if it goes to the Supreme Court, then I think that's it. 4th Amendment, "probable cause", Dubya violated it, game set match. \_ I talked to my Con Law prof about this and the real problem is getting standing to bring a 4th amend. claim. Unless the AG screws up really badly, defendants will not have a factual basis to claim that their 4th amend. rights were violated. [ The ACLU has filed a suit saying that the named plaintiffs were likely to be tapped, but this is probably not enough to show actual harm necessary to get standing ] \_ You can ask your prof what they think of this with respect to the notion that you can't get plaintiffs with standing because, by nature of the program, you can't find out if your 4th amendment rights have been breached. I.e., you can have unlimited secret wiretapping because you can't find anyone who knows if they've been wiretapped. Your prof can either say "Too bad" or "Perhaps SCOTUS will recognize the Catch-22 and review the case". \- some people are concerned about the standing issue int eh case of the ACLU suit but theirs is not the only suit. a law prof whose name i do not recall but is possible from gerogetown is representing a muslim professor who allegedly said some crazy stuff and was was suspected to have phone conversations with various unsavories located in AFGANISTAN was smacked down and he should pretty clearly have standing, but he is not a very sympathetic defendent ... that might end up being a case where there would have been probably cause but the govt just didnt bother with the warrants. the BURGER court certain carved into the exclusionary rule so that trend may continue. remember the constitution says the govt cant do warrantless searches but it doesnt mandate the exclusionary rule ... the court could conceivably have said "we will sanction the fellow who obtained the tainted evidence" or the unjustly seearched party has a right to sue the law enforcement body that violated his 4th amd or 5th amd rights for money damage rather than a right to suppress the evidence. \- update: the other suit is being led by the center for constitutional rights. their clients have a pretty good case for standing but may be less sympathetic ... e.g. have made anti-american public statements etc. but their claim is also that the lawyers of these people who are american citizens were monitored. i have to go now. Re the assertion of unitary power to wiretap: The argument that Congress implicitly gave the Pres. this power runs into the Marbury issue; Congress cannot give gifts that it doesn't have the power to confer - arguably a complete waiver of the 4th amend. warrant requirement is beyond Congress' power. If such waiver of the FISA is w/in Congress' power, then the Pres. will probably win this under either the Curtis Wright or Youngstown. |
| 5/24 |
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| www.talkingpointsmemo.com/archives/007276.php noted below, one of the alleged rationales for sidestepping the law and the FISA Court with these NSA wiretaps is the need for timeliness. The problem with this argument is that the FISA Court is specifically designed to get warrants okayed really quickly and it almost never rejects a government application (I'm still trying to get confirmation on the exact stats). Apparently, though, this rationale is even weaker than I thought. FISA specifically empowers the Attorney General or his designee to start wiretapping on an emergency basis even without a warrant so long as a retroactive application is made for one "as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance." |
| powerlineblog.com/archives/012770.php Click here January 08, 2006 72 Hours: Who Could Ask For More? We've been getting emails from liberals demanding to know why we haven't written about the 72-hour provision of FISA, which, they say, definitively proves that there couldn't possibly have been any need to go outside the FISA structure for purposes of speed. Actually, there are quite a number of FISA provisions that we haven't written about, but, since the left seems to be putting so much emphasis on this one, here goes: why the 72-hour clause doesn't eliminate the problem of FISA delay. First of all, here is the provision in question, 50 USC Sec. If the Attorney General authorizes such emergency employment of electronic surveillance, he shall require that the minimization procedures required by this subchapter for the issuance of a judicial order be followed. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 72 hours from the time of authorization by the Attorney General, whichever is earliest. A denial of the application made under this subsection may be reviewed as provided in section 1803 of this title. So this is the Left's argument: the speed problem is solved. All the government has to do is begin the electronic surveillance immediately; and the government then has 72 hours to get the necessary paperwork in front of the FISA judge, and get the judge to sign the FISA order. FISA applications are detailed and require considerable time to prepare. Here are the requirements: Submission by Federal officer; contents Each application for an order approving electronic surveillance under this subchapter shall be made by a Federal officer in writing upon oath or affirmation to a judge having jurisdiction under section 1803 of this title. Each application shall require the approval of the Attorney General based upon his finding that it satisfies the criteria and requirements of such application as set forth in this subchapter. It shall include the identity of the Federal officer making the application; the authority conferred on the Attorney General by the President of the United States and the approval of the Attorney General to make the application; the identity, if known, or a description of the target of the electronic surveillance; a statement of the facts and circumstances relied upon by the applicant to justify his belief that the target of the electronic surveillance is a foreign power or an agent of a foreign power; and each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power; a detailed description of the nature of the information sought and the type of communications or activities to be subjected to the surveillance; a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official or officials designated by the President from among those executive officers employed in the area of national security or defense and appointed by the President with the advice and consent of the Senate that the certifying official deems the information sought to be foreign intelligence information; that a significant purpose of the surveillance is to obtain foreign intelligence information; that such information cannot reasonably be obtained by normal investigative techniques; that designates the type of foreign intelligence information being sought according to the categories described in section 1801 of this title; and including a statement of the basis for the certification that the information sought is the type of foreign intelligence information designated; and (ii) such information cannot reasonably be obtained by normal investigative techniques; a statement of the means by which the surveillance will be effected and a statement whether physical entry is required to effect the surveillance; a statement of the facts concerning all previous applications that have been made to any judge under this subchapter involving any of the persons, facilities, or places specified in the application, and the action taken on each previous application; The government has 72 hours from the time when a telephone is found in, say, Afghanistan, and the Attorney General gives the order to begin surveillance, until a FISA judge actually signs the order based on the government's application. How does that compare to the length of time it normally takes to obtain a FISA order? Byron York wrote on ths subject last month: In 2002, when the president made his decision, there was widespread, bipartisan frustration with the slowness and inefficiency of the bureaucracy involved in seeking warrants from the special intelligence court, known as the FISA court. Even later, after the provisions of the Patriot Act had had time to take effect, there were still problems with the FISA court problems examined by members of the September 11 Commission and questions about whether the court can deal effectively with the fastest-changing cases in the war on terror. People familiar with the process say the problem is not so much with the court itself as with the process required to bring a case before the court. "It takes days, sometimes weeks, to get the application for FISA together," says one source. "It's not so much that the court doesn't grant them quickly, it's that it takes a long time to get to the court. Even after the Patriot Act, it's still a very cumbersome process. It is not built for speed, it is not built to be efficient. Lawmakers of both parties recognized the problem in the months after the September 11 terrorist attacks. They pointed to the case of Coleen Rowley, the FBI agent who ran up against a number roadblocks in her effort to secure a FISA warrant in the case of Zacarias Moussaoui, the al Qaeda operative who had taken flight training in preparation for the hijackings. "Rowley depicted the legal mechanism for security warrants under the Foreign Intelligence Surveillance Act, or FISA, as burdensome and restrictive, a virtual roadblock to effective law enforcement," Legal Times reported in September 2002. The Patriot Act included some provisions, supported by lawmakers of both parties, to make securing such warrants easier. In April 2004, when members of the September 11 Commission briefed the press on some of their preliminary findings, they reported that significant problems remained. "Many agents in the field told us that although there is now less hesitancy in seeking approval for electronic surveillance under the Foreign Intelligence Surveillance Act, or FISA, the application process nonetheless continues to be long and slow," the commission said. "Requests for such approvals are overwhelming the ability of the system to process them and to conduct the surveillance. The Department of Justice and FBI are attempting to address bottlenecks in the process." If it takes "days, sometimes weeks" to assemble a FISA application, then 72 hours is not long enough to be confident the process can be completed. Anyone who thinks that it is easy for multiple lawyers and officials to collaborate on a set of documents, present them to a federal judge and have the judge sign the order within 72 hours has, I'm afraid, no experience whatever at obtaining orders from federal judges. And note what happens if the 72 hour deadline is missed. Suppose that the government gets the FISA application to a judge on time, but the judge has not yet signed the order when the 72nd hour expires. At that point, there is a forfeiture: the surveillance is to be terminated immediately, and information gained from the surveillance during that key 72 hour period cannot be used for any purpose--not even communicated to federal anti-terror employees--without a certification that it "indicates a threat of death or serious bodily harm to any person." Given the complexity of the process, and the uncertainty whether a judge will actually sign an order on short notice even if it is presented to him in ... |
| tinyurl.com/9nosv -> www.washingtonpost.com/wp-dyn/content/article/2006/01/06/AR2006010601772.html More Report Rebuts Bush on Spying Domestic Action's Legality Challenged By Carol D Leonnig Washington Post Staff Writer Saturday, January 7, 2006; Page A01 A report by Congress's research arm concluded yesterday that the administration's justification for the warrantless eavesdropping authorized by President Bush conflicts with existing law and hinges on weak legal arguments. The Congressional Research Service's report rebuts the central assertions made recently by Bush and Attorney General Alberto R Gonzales about the president's authority to order secret intercepts of telephone and e-mail exchanges between people inside the United States and their contacts abroad. Best of the Post: Politics The best political photographs taken by Washington Post photographers in 2005. Politics Trivia President Bush met with former secretaries of state and defense on Thursday at the White House to discuss the war in Iraq. President Lyndon B Johnson also consulted a group of former policymakers during the Vietnam War. The findings, the first nonpartisan assessment of the program's legality to date, prompted Democratic lawmakers and civil liberties advocates to repeat calls yesterday for Congress to conduct hearings on the monitoring program and attempt to halt it. The 44-page report said that Bush probably cannot claim the broad presidential powers he has relied upon as authority to order the secret monitoring of calls made by US citizens since the fall of 2001. Congress expressly intended for the government to seek warrants from a special Foreign Intelligence Surveillance Court before engaging in such surveillance when it passed legislation creating the court in 1978, the CRS report said. The report also concluded that Bush's assertion that Congress authorized such eavesdropping to detect and fight terrorists does not appear to be supported by the special resolution that Congress approved after the Sept. "It appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here," the authors of the CRS report wrote. The administration's legal justification "does not seem to be . "This report contradicts the president's claim that his spying on Americans was legal," said Sen. Frank Lautenberg (D-NJ), one of the lawmakers who asked the CRS to research the issue. "It looks like the president's wiretapping was not only illegal, but also ensnared innocent Americans who did nothing more than place a phone call." Justice Department spokesman Brian Roehrkasse said the president and the administration believe the program is on firm legal footing. "The national security activities described by the president were conducted in accord with the law and provide a critical tool in the war on terror that saves lives and protects civil liberties at the same time," he said. A spokesman for the National Security Agency was not available for a comment yesterday. Other administration officials, who spoke on the condition of anonymity, said the CRS reached some erroneous legal conclusions, erring on the side of a narrow interpretation of what constitutes military force and when the president can exercise his war powers. Bush has said that he has broad powers in times of war and must exercise them to target not only "enemies across the world" but also "terrorists here at home." The administration has argued, starting in 2002 briefs to the FISA court, that the "war on terror" is global and indefinite, effectively removing the limits of wartime authority -- traditionally the times and places of imminent or actual battle. Some law professors have been skeptical of the president's assertions, and several said yesterday that the report's conclusions were expected. "Ultimately, the administration's position is not persuasive," said Carl W Tobias, a University of Richmond law professor and an expert on constitutional law. "Congress has made it pretty clear it has legislated pretty comprehensively on this issue with FISA," he said, referring to the Foreign Intelligence Surveillance Act. "And there begins to be a pattern of unilateral executive decision making. Time and again, there's the executive acting alone without consulting the courts or Congress." Marc Rotenberg, executive director of the Electronic Privacy Information Center, said the report makes it clear that Congress has exerted power over domestic surveillance. He urged Congress to address what he called the president's abuse of citizens' privacy rights and the larger issue of presidential power. "These are absolutely central questions in American government: What exactly are the authorities vested in the president, and is he complying with the law?" The report includes 1970s-era quotations from congressional committees that were then uncovering years of domestic spying abuses by J Edgar Hoover's FBI against those suspected of communist sympathies, American Indians, Black Panthers and other activists. Lawmakers were very disturbed at how routinely FBI agents had listened in on US citizens' phone calls without following any formal procedures. As they drafted FISA and created its court, the lawmakers warned then that only strong legislation, debated in public, could stop future administrations from eavesdropping. "This evidence alone should demonstrate the inappropriateness of relying solely on executive branch discretion to safeguard civil liberties," they wrote. The lawmakers noted that Congress's intelligence committees could provide some checks and balances to protect privacy rights but that their power was limited in the face of an administration arguing that intelligence decisions must remain top secret. |
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