Also be sure to catch the latest on the debate at: http://garveys-ghost.blogspot.com/2006/02/american-big-man-part-iv.html
So I'm checking my stats and run across a blog entitled No Oil For Pacifists where there is a post on entitled Wiretapping--The Law which is basically a rehash of the white paper released on Friday.
One of the weaknesses of the argument on both the blog and the Bush administration is the case law that exists prior to FISA. The abuse of the anti-War and Civil Rights movement by the US government in my opinion makes a lot of the legal justifications for wiretapping simply untenable. Those abuses clearly show that presidential power to wiretap or otherwise spook citizens should never happen without judicial oversight because the president may have illusions of treachery based on his opinion about a certain group of people. Wiretapping of Dr. King was predicated on "suspicion" that he was a communist. He was not (and who's real business is it if he was?). The Cointelpro against various black power movements would be another example.
But let's get into the meat of the problem. The focus of the people who support the Wiretap is as follows:
from the Wall Street Journal
The issue is not about circumventing normal civilian Constitutional protections, after all. The debate concerns surveillance for military purposes during wartime. No one would suggest the President must get a warrant to listen to terrorist communications on the battlefield in Iraq or Afghanistan. But what the critics are really insisting on here is that the President get a warrant the minute a terrorist communicates with an associate who may be inside in the U.S. That's a loophole only a terrorist could love.
No, the FISA law has a provision that the President may start a wiretap immediately but must go to the court within' 36 hours with the probable cause that warranted the tap (not the info you got during the 3 days). So exactly what is this huge loophole that has terrorists licking their lips about? Doesn't exist. But as the Black Commentator has pointed out the WSJ has..issues.
Another blog Maxed out Momma is quoted as saying, in part:
Do you think that the NSA should have to get a judge to agree that it can look at calls made from inside the US to Iranian President Ahmadinejad's cell phone? Because that is what this amounts to. How severe is the impact on the individual freedom of American citizens?
Yes I do think the NSA should have to have a Judge agree. That's what is required by the law and except in 4 cases, every request put before FISA judges have been approved. Some have been even been approved at 3AM EST. So since it has been working all this time, why is it now broken? Perhaps because of the string of lies coming out of this administration has caused some of the judges to not be so quick to grant the FISA warrants.
Secondly, what exactly is criminal about calling the Iranian president? Not that many US citizens would be doing so but it's not a crime or an indicator of intent to commit a crime. It is only something that many people wouldn't do for various reasons. Anyway, given the amount of spying being done on behalf of Israel I would think that a phone call to Ariel Sharon would be a far better example of "suspicious activities." But let's answer the question about the "impact on American Citizens." The issue is not one of immediate impact but of long term "slippery slope" impact. If it is OK to detain a citizen without charges or trials because the government thinks the citizen is an "enemy combatant then how long until citizens are detained for other types of legal activities to which some person in the White House has deemed subversive? In the last election some conservative Christians ran advertisements saying that Democrats would take away the Bibles of Christians if they got into power. Clearly them, even conservatives are concerned about what power a president may have and what threat that president may be if they are not partial to certain ideologies. So simply put, I don't go along with Wiretaps because I don't want the police stopping me for no good reason on the street demanding ID..Sorry we gave that one up already didn't we. Oh I don't want police entering my premises without a warrant. Dammit, That's already happening. The unfortunate thing is that many people don't recognize the "freedoms" they have until they do something to piss the wrong person in power off. Many, though unfortunately not all, black folk in America can recal times when black civil rights simply did not exist. So we are loath to see government abuses. It is unfortunate that some black folk have forgotten those times.
One Tommy states:
We are fighting a war, the congress authorized, and the President took, action. I expect the communications of the enemy to be monitored. All of the communications of the enemy. The fact that the enemy is communicating with people within our borders does not in the slightest change that. Maybe I’ve spent more time around collection type assets than the average person, but I confess I was shocked to learn that people were surprised this was going on. If the program was monitoring domestic communications with persons other than Al Qaeda and associated groups, that is something different. But as of yet, I have heard nothing to suggest that was the case.
Umm, please stop reading conservative publications and pick up some other types of press. The NSA has in fact been wiretapping U.N. Diplomats (hated by conservatives but definitely not Al-Qaida.
The NSA has been tapping the Baltimore based "Iraq Pledge of Resistance" peace group opposed to the Iraq war.
As my final example I'll point the reader to Counterpunch's article From Your Mouth to His Ears
How Cheney Used the NSA for Domestic Spying Prior to 9/11 Wherein it is shown that the White House was using the NSA for illegal purposes within' the government. This last example is interesting since with all that governmental tapping the exploits of certain lobbyists and Senators apparently were undetectable.
hmmmmmm.
Oh I'm sure I'm about the hear the "this is a liberal publication" argument. That's the weak excuse given by people who would rather discuss "character" than actual facts. but that's the nature of the beast.
Technorati Tags: politics, US Constitution
Sondjata:
ReplyDeleteYou're missing the central points of the authorities I cited and, yes, the White Paper. In particular:
1) The Fourth Amendment doesn't require warrants for all searches (a wiretap is a Fourth Amendment search). Rather, it prohibits unreasonable actions. There are many scenarios where the Supreme Court doesn't demand a warrant, for example, "stop and frisk," hot pursuit, and automobiles. Findlaw suggests a majority of searches are performed without a warrant; while I can't vouch for that estimate, it shows the absence of a hard-and-fast rule.
2) The President's authority under Article II, Section 2 as Commander in Chief cannot be burdened by Congressional disagreement or even a statute (at least in more than a trivial way). This is why, contrary to your intimation ("case law that exists prior to the FISA"), no court has ever held that the President must obtain a warrant to wiretap international communications while monitoring a violent foreign threat. See the cases I cited.
3) Thus, even were the FISA to prohibit warrantless international national security wiretaps (which I don't concede, see below), it could not override valid Article II, Section 2 actions. FISA's "15 day" authorization, 50 U.S.C. § 1811, represents another lawful avenue allowing warrantless wiretaps but does not, and could not, forbid actions otherwise lawful under Article II. I note that Presidents Carter and Clinton agreed.
4) The language and legislative history of FISA recognizes the point, see my citations to 50 U.S.C. § 1801 and Attorney General Bell's testimony; see also 50 U.S.C. § 1809(a)(1). And the ECPA similarly shows Congress's recognition of Presidential authority regarding international communications, see 18 U.S.C. § 2511(f).
Conclusion: I'm always willing to address actual facts and fairly apply the law to the facts.
All courts and most commenters read Article II, Section 2 to give the President the power to wiretap at least some international communications without a warrant. Of course, it's a fair question whether Bush's specific actions are authorized under that provision. But, the combination of points one, two and three make the question of lawfulness quite fact-specific. Without more, your "slippery slope" argument is too coarse a standard to be decisional here.
How much investigation can be undertaken is a tough question; Clinton insisted on secrecy. But assume for a moment we have all relevant facts. Were the President (or the Vice President as you suggest) tapping domestic calls, for law enforcement purposes, unconnected with external threats, I say: "nail him." But absent such evidence, your assertion that Bush broke the law is false. Neither Dr. King nor civil rights control the law regarding international communications to/from foreign threats.
I'm not saying the analysis is easy or that I'm certain the Administration acted lawfully. But, as Tommy suggested, nothing in your post demonstrates otherwise.