December 17, 2005

posted by Daniel J. Solove

According to the Washington Post, the admnistration's assurances of legality where part of the reason why the NYT delayed publication of the story for over a year. Too bad they didn't seek a second opinion from someone familiar with at least the FISA statutes. Sure there are arguments that someone like John Yoo could make that the president has powers to ignore the law. But these issues are not resolved.

The President's radio address this morning was very revealing. He said that he is relying on his Constitutional powers (Article 2) and the Joint Resolution passed by Congress after 9/11 that led to the war in Iraq. No wonder Congress is upset. The debate over the future of the Patriot Act is premised on the belief that the Executive branch will follow the law. Otherwise, what is the point of legislating? Also interesting was the Washington Post report this morning that Judge Lamberth and Judge Kollar-Kotelly, the past and current chief judges on the Foreign Intelligence Surveillance Court, were aware of the program and had misgivings. Finally, the President's claim that to reveal the existence of this program is an aid to the enemy or may hinder investigations is disingenous. Numerous procedures have been established to enable judicial oversight and public reporting while safeguarding the integrity of investigations. In the Freedom of Information Act world, there are the (b)(1) (national security), (b)(3) (special statues), and (b)(7) (law enforcement) exemptions. And in the foreign intelligence world, there is the Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Court. But it now appears that the President substituted his own judgement for the acts of Congress.

Actually, FISA specifically identifies members of a terrorist group as a "foreign power" and exempts them from the definition of United States person. I don't see how FISA was broken as long as the surveillance was against members of a terrorist group.

The problem is this clause in the minimization procedures:

notwithstanding paragraphs (1), (2), and (3), with respect to any electronic surveillance approved pursuant to section 1802 (a) of this title, procedures that require that no contents of any communication to which a United States person is a party shall be disclosed, disseminated, or used for any purpose or retained for longer than 72 hours unless a court order under section 1805 of this title is obtained or unless the Attorney General determines that the information indicates a threat of death or serious bodily harm to any person.

This is explicitly referenced in the relevant places authorizing surveilance. In other words the 'and' used in the above article is very operative. The foreign agent exception only applies *if* the foreign agent is not a United States person otherwise you still need a warrant.

Besides, it is far from clear there is good reason to believe only agents of Al Qaeda were surveiled. The arguments the administration have been making suggest they have been using the program to monitor communication of people whose phone numbers happened to be in a terrorist's phone even though they might just be a friend.

Right.

Just brush aside Executive Order 12139 (Carter, 1979), Executive Order 12333 (Reagan, 1981), Executive Order 13010 (Clinton, 1996) - ALL of which are based on 50 USC 1802(a).

If you're going to assert that 50 USC 1844 is no longer in effect (based on declaration of war), then the War Powers Act kicks in, now doesn't it?

I don't recall any clamor over President Clinton’s breaking and entering into U.S. Citizen Aldrich Ames’s house using 50 USC 1822…

Why can't you just be honest, and state the obvious: You're opposed to President Bush's use of 50 USC 1802(a) BECAUSE he's George W. Bush (and, worse, a Republican)...

To all of you Bush bashing liberals who say the president went neyond his authority to ordering this supposed illegal wiretapping, read on. Then maybe you dumbass libs will finally shut up.

Claims by a top Senate Democrat that the Clinton administration's warrantless surveillance of suspected spies and terrorists was different from what the Bush administration has employed are being contradicted by a former Justice Department official who served under President Bill Clinton.

John Schmidt, who served as associate attorney general between 1994 and 1997, argues that both Congress and the Supreme Court have recognized presidents' "inherent authority" to bypass warrants in ordering the eavesdropping of U.S. citizens suspected of conspiring with foreign governments or terrorists to injure or kill Americans.

On Wednesday, Sen. Patrick Leahy (D-Vt.), the ranking Democrat on the Senate Judiciary Committee, chided reporters for suggesting that Clinton ordered the same kinds of surveillance of U.S. citizens as Bush. Leahy claimed in a press conference that Clinton acted under an "entirely different power.

"If you go back to Clinton and (President Jimmy) Carter, those are searches under a FISA (Foreign Intelligence Surveillance Act) provision into embassies, foreign embassies, things of that nature," Leahy argued. "It's an entirely different situation."

But in at least one well-documented case, Clinton authorized domestic electronic surveillance of a U.S. citizen without a warrant. FBI agents were allowed to break into the home of 31-year CIA veteran Aldrich Ames in 1993 to install eavesdropping devices.

An FBI summary of the case described it this way: "FBI Special Agents and Investigative Specialists conducted intensive physical and electronic surveillance of Ames during a ten-month investigation. Searches of Ames's residence revealed documents and other information linking Ames to the Russian foreign intelligence service."

"In the early morning hours of an autumn morning in 1993, an unmarked government sedan rolled slowly down an empty tree-lined street in Arlington. The FBI agents inside parked just up from a handsome two-story home. The agents knew the place well. Three months earlier, an FBI team had gone inside to bug the place. That operation had been a quick in and out. This time the agents planned to stay for a while. The owners were out of town on vacation. The house was vacant," the pair wrote. "With several hours to go before dawn, the FBI team slipped inside. They had with them the necessary equipment, but they did not have a warrant."

Though Ames's attorney initially planned to challenge the admissibility of the evidence collected through the warrantless searches and surveillance, Ames decided to plead guilty to espionage charges instead. He is serving life in prison without possibility of parole.

So give us a break. Please keep your hypocrisy and partisan bullshit to yourselves. We have had enough of it. Furthermore, what the very hypocritical and partisan hack Patrick Leahy fails to mention is the true difference between what Clinton and Bush did is Mr. Clinton actually did do a wiretapping with a warrant on and American citizen whereas Mr. Bush did not.

One of the new urban political myths:Presidents Clinton and Carter also authorized warrantless searches of U.S. citizens under FISA.

as the ThinkProgress weblog noted on December 20, executive orders on the topic by Clinton and Carter were merely explaining the rules established by FISA, which do not allow for warrantless searches on "United States persons."

What Clinton actually signed:

Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.

That section requires the Attorney General to certify is the search will not involve "the premises, information, material, or property of a United States person." That means U.S. citizens or anyone inside of the United States.

The entire controversy about Bush's program is that, for the first time ever, allows warrantless surveillance of U.S. citizens and other people inside of the United States. Clinton's 1995 executive order did not authorize that.

What Carter's executive order actually says:

1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.

What the Attorney General has to certify under that section is that the surveillance will not contain "the contents of any communication to which a United States person is a party." So again, no U.S. persons are involved.

By all means spy on foreign persons, but when it comes to domestic spying, all Americans, including the president must abide by the rule of law. One of the very definitions of a police state is for the executive to have unfettered powers. Hardly what our founders had in mind, nor those citizens concerned about the balance of powers among the three branches of government.

It's entirely a slick, evasive maneuver to throw Clinton's abuses of presidential authority in the faces of those pointing out the illegality of Bush's violation of FISA. Pointing out that one president's utter contempt for the law (the aforementioned spying upon the former CIA official, Waco, and the selling of secret military missile technology to totalitarian China) to justify another's consummate disregard for the rule of law is one of the lamest excuses available.