Note: subject is continued at: http://garveys-ghost.blogspot.com/2006/01/answering-big-man-questions.html
Before reading this post I suggest that the previous posts on this subject be read
American Big Man
American Big Man Part II
Also be sure to catch the latest on the debate at: http://garveys-ghost.blogspot.com/2006/02/american-big-man-part-iv.html
Now there are some issues that need to be clarified:
Some people think that objection to Bush's wiretapping is that we think wiretapping of "enemies" or foreign "enemies" is wrong or illegal. Wrong. GG does not oppose the lawful wiretap of foreigners as delineated in the Constitution. GG does not oppose the lawful wiretap of domestic citizens as delineated in the Constitution and ancillary law. The objection is to the idea that domestic citizens can be tapped as if they were foreigners.
While I'm not at all sure how far the U.S. constitution goes as far as protections of foreigners, but U.S. citizens are protected by the constitution primarily that there is a presumption of innocence and a protection against unlawful search and seizure. the purpose of FISA is to make sure that the constitutional rights of US citizens against unlawful search and seizure are upheld. Thus the legal process for what Bush did would have been:
1) NSA records a call originating from outside the US to a US phone number.
2) NSA officials and whatever bosses apply for a FISA warrant. In the meantime they legally tap the line of the US phone number.
3) FISA court looks over the evidence for probable cause and grants or denies the request. If granted, the US phone number remains tapped for the purpose stated on the warrant. If the request is denied the wiretap must ceased.
1) The NSA while monitoring the incoming calls of a foreign national picks up a US number.
2) NSA officials and whatever bosses seek a warrant from the FISA court. Meanwhile they tap the number of the person the number is ascribed to as per the PATRIOT Act and the AUMF.
3) FISA court grants the warrant and the tap is continued If the request is denied then the Wiretap must be terminated, but there are other legal means to surveil the citizen without trampling on their Rights. For example, Police can follow any person driving down the street since the street is public property and there are no expectations of privacy.
We've already noted that the FISA court has only denied warrants 4 times since it's inception. So any argument that FISA encumbers the search for terrorists is ridiculous. Furthermore, as noted in the first installment of American Big Man, the AUMF does not grant the executive powers to go around the FISA court. I believe the "necessary and appropriate" statement, being a conjunction, means that the executive can only take all necessary actions that are appropriate (as in the adjective not the verb) meaning legal. We agree with other commentators that the AUMF is very broadly written and having been rushed during an emotional time, was not well thought out.
We note that the Bush administration has steadily avoided having it's questionable activities go to the Supreme Court. We have written here on Garvey's Ghost that we think the Hamdi decision as well as the legally questionable Padilla case.
So in conclusion, we disagree with the Administration that the AUMF authorized domestic wiretaps of American Citizens.
We disagree that the War Powers provision supercedes the FISA requirements.
We think the Bush Admin is full of ka-ka.