Warrantless Wiretaps on Americans: Weak Legal Authority
"I hope we have once again reminded people that man is not free unless government is limited. There's a clear cause and effect here that is as neat and predictable as a law of physics: as government expands, liberty contracts." Ronald Reagan - Presidential Farewell Speech from the Oval Office
The Department of Justice has tendered a letter to the House and Senate Intelligence Committees, which defends the President's authority to order warrantless wiretaps of US persons on US soil. The timing of this affair is certainly terrible for the neo-cons. Given the case law they are citing, a lot of this will turn on how Rumsfeld v. Padilla is interpreted. Even though the Department of Justice (DOJ) has just recently won a civilian indictment against Padilla in Florida, the courts have not allowed the DOJ to thereby effectively moot the Padilla appeal to the Supreme Court, and take it out of the Court's hands.
My bet? If Padilla is ruled on by the US Supreme Court, the White House will lose. If they lose Padilla, they almost certainly lose any hope of the NSA's warrantless wiretaps being held as constitutional. The Court will know that too (which actually bodes poorly for the White House, as the Court is not going to be looking to effectively cede a review authority, they have held since Marbury v. Madison, for until they rule, if ever, on the NSA wiretaps, or, alternatively, until the end of the War on Terror). Of course, the Supreme Court might take a tack from Marbury v. Madison, and avoid the controversy for now, by ruling that the Appeals Court erred in not transferring Padilla to civilian custody and binding him over for civil trial. They would thereby moot the case themselves, before being forced to rule on it. But I wouldn't bet on it. You might have seen such a move in the immediate aftermath of 9/11, but I sincerely doubt the Court will do so now, some four years later.
No wonder the Administration is blowing a collective cork over the fact that the Fourth Circuit Court of Appeals has refused to transfer Padilla to civil custody. The result means that Padilla's case remains in the hands of the Supreme Court. Of course, it's interesting that the Court of Apeals, in their opinion, scathingly attacked the Administration for using different evidence to convince them that Padilla should stay in custody than they used to indict him in civilian criminal proceedings in Florida. It seems Gonzales and Rumsfeld believe playing Three Card Monte on cases with the Supreme Court is ok.
The letter from DOJ to the Intelligence Comittees reads well enough on its face, but it's a bad joke when you start checking the cites. They cite The Prize Cases, an Admiralty case that deals with property rights of the owners of belligerent vessels in the short period following the attack upon Fort Sumter and BEFORE Congress declared war - about all the cases might do was provide more latitude in Presidential response for a short time after 9/11, they never established that the President can simply make up the rules as he goes along. Even worse, the letter cites Hamdi v. Rumsfeld a case they lost on exactly the scope of Constitutional safeguards for US citizens as they relate to the availability of civilian judicial review. It cites Youngstown Sheet & Tube Co. V. Sawyer too, a case that explicitly said the President can't make up the rules.
As they are using quotes that support the opposite of the Court's holding in those cases, what the letter cites from those cases is therefore obiter dicta - commentary by a court, that sounds nice, but is irrelevant to the core case or has no practical legal effect in each instance. Lawyers cite obiter dicta when they have little else to throw around, not when they have a strong case. (Of course there is one famous incidence where apparent obiter dicta has later become seminally controlling: the famous Footnote 4 in Justice Stone's opinion in the Carolene Products case. But it's famous as the exception that proves the rule.) I mean, the Department of Justice might as well play Russian Roulette with 5 bullets chambered.
Given all the supposed legal opinions the President had supporting his authority to order warrantless wiretaps by the NSA, I would have expected much more in the DOJ letter. I would expect a student on the law review of a third tier law school would do better. But, perhaps the Washington Post was right in saying the DOJ just couldn't come up for arguments justifying these wiretaps at all. One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.
'For FISA, they had to put down a written justification for the wiretap,' said the official. 'They couldn't dream one up.'"
The Administration, in the DOJ letter, makes much of the Authorization of Use of Military Force' (AUMF) passed by Congress after 9/11 authorizing the President to use military force in the struggle against Al Qaeda. However, Congress can easily FIX the problem, of the supposed loophole big enough to drive Rush Limbaugh through, that Congress created in FISA, by explicitly making wiretaps of American persons, where the White House does not apply for a FISA warrant within 72 hours after the execution of the wiretap, illegal. The easiest way? Amend the Patriot Act next month, when it comes up for passage and debate, to close the loophole and watch the President turn blue.
There are those now making the point that the Carter and Clinton Administrations, as well as earlier Administrations, were monitoring phone and data communications. They miss the proverbial forest for the trees. To begin with, unfortunately, even the current White House makes a significant distinction between actually wiretapping an individual's communications, and simple network or radiowave monitoring. There are significant distinctions between monitoring: for traffic going to specific individuals, or for foreign traffic, all electronic communications, on the one hand, and scanning for code words and targeting an individual or phone number for ongoing wiretaps, on the other:
1) When a number or individual is specifically targeted for a wiretap, records are kept of all the indiviual's or number's conversations.
2) Legislation, Federal Regulations/Administrative Code, and Executive Orders required (until this Administration secretly changed some of those rules) that materials scanned randomly were purged from the system unless they identified something of explicit value. In the cases of targeted US persons/numbers, in the US, that meant a warrant existed covering: that person, the other person involved, or one of the numbers involved.
3) There is also a serious technological issue. To scan the emails and phone conversations of foreigners, given the way these networks work, we HAVE to scan everything. Otherwise you cannot identify, from the data headers, whether the data is from or to an American person, for whom we require a warrant, and communications solely between non-US persons, for whom we do not require a warrant. It's not as if foreign electronic communications go through different networks than purely domestic ones. (In fact, as one of the articles I cite today points out, the NSA pressured communications carriers to route foreign communications through switches in the US to make tapping into said communications easier.) You MUST monitor simply to find the foreign commo amidst all the domestic stuff.
To analogize, and sum up the difference between monitoring and wiretapping, it equates roughly to the difference between my setting up videotaping of you exiting and leaving your house and scanning those tapes in the hope that I eventually see a particular person leave, keeping one I find that on, destroying the tapes if I don't find any, and on the other hand, aiming video cameras into every window of your house and keeping the resulting tapes forever, just in case someone in Government may find them of use later.
I'm sorry, the former is legitimate surveillance. The latter is simply Big Brother, especially when, without having to apply for a warrant, the Government can take action based on pure hunch or conjecture, without any shred of supportive evidence.
We live in a nation that operates on the premise that government shall not invade our homes and violate our Fourth and Fifth Amendment rights UNTIL and UNLESS they have reasonable evidence that justifies it. That is why FISA Court oversight is essential.
However much we may disagree, I wish all of my readers Merry Christmas and/or Happy Holidays!!
The Department of Justice has tendered a letter to the House and Senate Intelligence Committees, which defends the President's authority to order warrantless wiretaps of US persons on US soil. The timing of this affair is certainly terrible for the neo-cons. Given the case law they are citing, a lot of this will turn on how Rumsfeld v. Padilla is interpreted. Even though the Department of Justice (DOJ) has just recently won a civilian indictment against Padilla in Florida, the courts have not allowed the DOJ to thereby effectively moot the Padilla appeal to the Supreme Court, and take it out of the Court's hands.
My bet? If Padilla is ruled on by the US Supreme Court, the White House will lose. If they lose Padilla, they almost certainly lose any hope of the NSA's warrantless wiretaps being held as constitutional. The Court will know that too (which actually bodes poorly for the White House, as the Court is not going to be looking to effectively cede a review authority, they have held since Marbury v. Madison, for until they rule, if ever, on the NSA wiretaps, or, alternatively, until the end of the War on Terror). Of course, the Supreme Court might take a tack from Marbury v. Madison, and avoid the controversy for now, by ruling that the Appeals Court erred in not transferring Padilla to civilian custody and binding him over for civil trial. They would thereby moot the case themselves, before being forced to rule on it. But I wouldn't bet on it. You might have seen such a move in the immediate aftermath of 9/11, but I sincerely doubt the Court will do so now, some four years later.
No wonder the Administration is blowing a collective cork over the fact that the Fourth Circuit Court of Appeals has refused to transfer Padilla to civil custody. The result means that Padilla's case remains in the hands of the Supreme Court. Of course, it's interesting that the Court of Apeals, in their opinion, scathingly attacked the Administration for using different evidence to convince them that Padilla should stay in custody than they used to indict him in civilian criminal proceedings in Florida. It seems Gonzales and Rumsfeld believe playing Three Card Monte on cases with the Supreme Court is ok.
The letter from DOJ to the Intelligence Comittees reads well enough on its face, but it's a bad joke when you start checking the cites. They cite The Prize Cases, an Admiralty case that deals with property rights of the owners of belligerent vessels in the short period following the attack upon Fort Sumter and BEFORE Congress declared war - about all the cases might do was provide more latitude in Presidential response for a short time after 9/11, they never established that the President can simply make up the rules as he goes along. Even worse, the letter cites Hamdi v. Rumsfeld a case they lost on exactly the scope of Constitutional safeguards for US citizens as they relate to the availability of civilian judicial review. It cites Youngstown Sheet & Tube Co. V. Sawyer too, a case that explicitly said the President can't make up the rules.
As they are using quotes that support the opposite of the Court's holding in those cases, what the letter cites from those cases is therefore obiter dicta - commentary by a court, that sounds nice, but is irrelevant to the core case or has no practical legal effect in each instance. Lawyers cite obiter dicta when they have little else to throw around, not when they have a strong case. (Of course there is one famous incidence where apparent obiter dicta has later become seminally controlling: the famous Footnote 4 in Justice Stone's opinion in the Carolene Products case. But it's famous as the exception that proves the rule.) I mean, the Department of Justice might as well play Russian Roulette with 5 bullets chambered.
Given all the supposed legal opinions the President had supporting his authority to order warrantless wiretaps by the NSA, I would have expected much more in the DOJ letter. I would expect a student on the law review of a third tier law school would do better. But, perhaps the Washington Post was right in saying the DOJ just couldn't come up for arguments justifying these wiretaps at all. One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.
'For FISA, they had to put down a written justification for the wiretap,' said the official. 'They couldn't dream one up.'"
The Administration, in the DOJ letter, makes much of the Authorization of Use of Military Force' (AUMF) passed by Congress after 9/11 authorizing the President to use military force in the struggle against Al Qaeda. However, Congress can easily FIX the problem, of the supposed loophole big enough to drive Rush Limbaugh through, that Congress created in FISA, by explicitly making wiretaps of American persons, where the White House does not apply for a FISA warrant within 72 hours after the execution of the wiretap, illegal. The easiest way? Amend the Patriot Act next month, when it comes up for passage and debate, to close the loophole and watch the President turn blue.
There are those now making the point that the Carter and Clinton Administrations, as well as earlier Administrations, were monitoring phone and data communications. They miss the proverbial forest for the trees. To begin with, unfortunately, even the current White House makes a significant distinction between actually wiretapping an individual's communications, and simple network or radiowave monitoring. There are significant distinctions between monitoring: for traffic going to specific individuals, or for foreign traffic, all electronic communications, on the one hand, and scanning for code words and targeting an individual or phone number for ongoing wiretaps, on the other:
1) When a number or individual is specifically targeted for a wiretap, records are kept of all the indiviual's or number's conversations.
2) Legislation, Federal Regulations/Administrative Code, and Executive Orders required (until this Administration secretly changed some of those rules) that materials scanned randomly were purged from the system unless they identified something of explicit value. In the cases of targeted US persons/numbers, in the US, that meant a warrant existed covering: that person, the other person involved, or one of the numbers involved.
3) There is also a serious technological issue. To scan the emails and phone conversations of foreigners, given the way these networks work, we HAVE to scan everything. Otherwise you cannot identify, from the data headers, whether the data is from or to an American person, for whom we require a warrant, and communications solely between non-US persons, for whom we do not require a warrant. It's not as if foreign electronic communications go through different networks than purely domestic ones. (In fact, as one of the articles I cite today points out, the NSA pressured communications carriers to route foreign communications through switches in the US to make tapping into said communications easier.) You MUST monitor simply to find the foreign commo amidst all the domestic stuff.
To analogize, and sum up the difference between monitoring and wiretapping, it equates roughly to the difference between my setting up videotaping of you exiting and leaving your house and scanning those tapes in the hope that I eventually see a particular person leave, keeping one I find that on, destroying the tapes if I don't find any, and on the other hand, aiming video cameras into every window of your house and keeping the resulting tapes forever, just in case someone in Government may find them of use later.
I'm sorry, the former is legitimate surveillance. The latter is simply Big Brother, especially when, without having to apply for a warrant, the Government can take action based on pure hunch or conjecture, without any shred of supportive evidence.
We live in a nation that operates on the premise that government shall not invade our homes and violate our Fourth and Fifth Amendment rights UNTIL and UNLESS they have reasonable evidence that justifies it. That is why FISA Court oversight is essential.
However much we may disagree, I wish all of my readers Merry Christmas and/or Happy Holidays!!
posted by Keith | 12/24/2005 05:52:00 AM
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