Federal Judge Strikes Down Use of Warrantless Wiretaps

[ArmedBear]

This ruling tears a huge hole in our ability to monitor terrorists.

Requiring warrants in general tears a huge hole in the ability of law enforcement to do a whole lot of things.

 

[Bartholomew Roberts]

That's never been the law before. Never before has any court said we need warrants to surveil suspected and known terrorists overseas. Never before has a court said if a US citizen calls them, or they call a US citizen, we have to drop the surveillance.

Actually, what has been said previously is that the President does not need a warrant to carry out his powers of foreign intelligence gathering which may include spying on foreign intelligence agents WITHIN THE CONTINENTAL UNITED STATES, even if they are United States citizens.

People seem to forget that last part and just assume that because international phone calls are prominently mentioned in several of the news stories that this is the extent of the issue. FISA can be used to monitor people when both ends of the conversation occur entirely within the United States - and presumably so can any process that seeks to bypass FISA. The big problem is how do we know whether the surveillance really relates to foreign intelligence without oversight?

FISA was created in 1972 (during the Nixon Administration) precisely because Congress was a little worried about giving the Executive branch the power to conduct warrantless surveillance on anyone it claimed was a foreign intelligence agent - especially given the abuses revealed by Watergate.

An excellent history of FISA and the restrictions on it is detailed here:
http://www.epic.org/privacy/terrorism/fisa/#Overview

Personally, I don't have a problem with requiring a warrant from a FISA court to insure that a U.S. Citizen being monitored is being monitored for the purpose of foreign intelligence gathering and not for domestic political advantage. I don't think it will disable the war on terror to have the same court that has denied only five warrants in 25 years double-check the work of the executive branch in that regard.

 

[Vern Humphrey]

Requiring warrants in general tears a huge hole in the ability of law enforcement to do a whole lot of things.

There's a big difference between law enforcement and national security.

Next, you'll be saying a soldier in combat needs to give an enemy soldier a trial before he can shoot back at him.

 

[roo_ster]

Asinine

This pretty much completes the lawyer-ization of the conduct of warfare, intel, & counterintel. Every field intel officer will have to bring along a lawyer to fill out the paperwork to file for a warrant in case the target happens call Dell Gold Level Support* in the middle of his Death_to_America.ppt briefing to fellow international scumbags.

We'll have to phase out the Platoon Medic in our infantry platoons in favor of the Platoon Lawyer. "Just suck up the sucking chest wounds, men! We must be sure the goons we capture get good treatment and access to a lawyer."

* Means "you talk to an Ameican in America." If the target bought the Standard Support option, our field agent would not require a warrant, since the "support" is provided by some guy in Bangalore, India.

What a charlie foxtrot.

 

[aroshi]

Simple Equation

There are a lot of things posed above that point out people's opinions and what should be right. It really is simple to summarize:

Fourth Amend. + Checks and Balances = Good

No Fourth Amend. + No Checks and Balances = Bad

The details as to weather judges are involved secretly or not, whether taps are applied as a part of a Standard Operating Procedure during the warrant-application process or not, or whether these are for internal or external calls are moot.

There should be NO absolute control given over those rights. I, in league with our Founding Fathers, am NOT ready to give up my rights DECLARED centuries ago just so that a president today can allow his cronies in the NSA to do what they want without checks and balances. "Power Corrupts, Absolute Power Corrupts Absolutely" is the reason our rights were declared in the first place. Any .... ANY Contradiction to those is a violation of our rights.

P.S.
These rights "shall not be infringed" should be at the end of ALL of our rights!

 

[Vern Humphrey]

BS

You do realize that law enforcement can tap you without a warrant?

The courts long ago ruled law enforcement can evesdrop on cordless phones and cell phones without a warrant?

Yet I see no one passing gas over that ruling.

 

[Group9]

Well, at least we have the Brits taking care of business. But for them, we would probably have a lot more dead Americans from this latest plot. We just don't have the tools, or apparently the desire, to stop them.

 

[Bartholomew Roberts]

This pretty much completes the lawyer-ization of the conduct of warfare, intel, & counterintel. Every field intel officer will have to bring along a lawyer to fill out the paperwork to file for a warrant in case the target happens call Dell Gold Level Support* in the middle of his Death_to_America.ppt briefing to fellow international scumbags.

This is also a popular misconception. According to this declassified 1993 document named United States Signals Intelligence Directive 18, the NSA already had the authority to monitor:

"A person who, for or on behalf of a foreign power is engaged in clandestine intelligence activities (including covert activities intended to effect the political or governmental process), sabotage or INTERNATIONAL TERRORIST activities or activities in preparation for INTERNATIONAL TERRORIST activities, or who conspires with, or knowingly aids and assists a person engaing in such activities."

They had this authority already in 1993 without needing any amendment to the FISA act. Whatever the current program is (and we don't know because it is secret), we know that it is broad enough that this exception wouldn't cover it and the Bush administration sought to amend FISA in 2002 to allow this new program.

In the example you gave, even back in 1993, the government would have continued monitoring the call and would simply redact/erase the irrelevant information to protect the privacy rights of Americans.

You do realize that law enforcement can tap you without a warrant?

The courts long ago ruled law enforcement can evesdrop on cordless phones and cell phones without a warrant?

I must have missed that ruling. Could you give the case please where they made that ruling?

Well, at least we have the Brits taking care of business.

Yeah, that 4th Amendment is a pesky thing... I suspect that the Brits "taking care of business" circa 1776 is one of the reasons we have it.

 

[Vern Humphrey]

Well, at least we have the Brits taking care of business. But for them, we would probably have a lot more dead Americans from this latest plot. We just don't have the tools, or apparently the desire, to stop them.

Our enemies don't need to kill us -- we're busy committing suicide.

This whole thing is a smokescreen thrown up for political reasons.

 

[1 old 0311]

p.s. she was appointed by Jimmy Carter. That answer anything

 

[Vern Humphrey]

I must have missed that ruling. Could you give the case please where they made that ruling?

Apparently there's a lot you've missed. Here's a recent article on the subject:

IRS CUPS ITS EAR TO CORDLESS PHONES (USA Today, 7/30?)

If you're thinking about declaring a few imaginary dependents this year, don't mention it on your cordless phone.

The Internal Revenue Service may be listening.

Under new guidelines for its criminal investigators, the IRA can use radio scanners to eavesdrop on suspected tax dodgers while they chat on their cordless phones.

No warrant is necessary.

The IRS policy, issued as an update to a handbook for investigators, comes in the wake of a recent Supreme Court action.

The high court declined in January to review a federal appeals court ruling that conversations on cordless telephones are not subject to federal privacy laws.

 

[Bartholomew Roberts]

Apparently there's a lot you've missed. Here's a recent article on the subject

A recent article on the subject? That article is from a USA Today article date July 30, 1990. Do you consider a 16 year old article recent?

The article notes that because the 1986 Electronic Communications Act did not cover cell phones and cordless phones, there was no law preventing monitoring of those communications. The law has been amended since then:

Here is the current text regarding warrantless interception of electronic communication:

Notwithstanding any other provision of this chapter, any investigative or law enforcement officer, specially designated by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or by the principal prosecuting attorney of any State or subdivision thereof acting pursuant to a statute of that State, who reasonably determines that--


(a) an emergency situation exists that involves--

(i) immediate danger of death or serious physical injury to any person,

(ii) conspiratorial activities threatening the national security interest, or

(iii) conspiratorial activities characteristic of organized crime,



that requires a wire, oral, or electronic communication to be intercepted before an order authorizing such interception can, with due diligence, be obtained, and

(b) there are grounds upon which an order could be entered under this chapter to authorize such interception,


may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur. In the absence of an order, such interception shall immediately terminate when the communication sought is obtained or when the application for the order is denied, whichever is earlier. In the event such application for approval is denied, or in any other case where the interception is terminated without an order having been issued, the contents of any wire, oral, or electronic communication intercepted shall be treated as having been obtained in violation of this chapter, and an inventory shall be served as provided for in subsection (d) of this section on the person named in the application.

Here is a link to the current version of the law, AKA 18 U.S.C. 2510-2522.

 

[Vern Humphrey]

Note that while an "authorization" is required, a warrant is not.

 

[Bartholomew Roberts]

Note that while an "authorization" is required, a warrant is not.

Note that the language says "may intercept such wire, oral, or electronic communication if an application for an order approving the interception is made in accordance with this section within forty-eight hours after the interception has occurred, or begins to occur."

The order referred to is a court order authorizing the surveillance (a warrant). I linked the entire section of the 1986 Act earlier; but here is the relevant section if you would like to read more about it:

§ 2518. Procedure for interception of wire, oral, or electronic communications. I don't believe it supports your assertions here.

 

[ServiceSoon]

It really dosnt matter what the any recent statute says, because NSA is receiving oral, written, and electronic communication without a warrant. What ever new statute Bush creates is irrelevant, because the mother of all documents has clear language and its terms come first. The FACT that NSA was receiving communication without a warrant was posted on all of the news sources that I am aware of. Here is one example of one such report:

http://arstechnica.com/news.ars/post/20051217-5791.html

I am very happy that District Judge Taylor is doing her job and following one of the most important American documents every created. After all, that is her curse, to uphold the constitution. I am not against this sort of surveillance. In fact these interceptions will probably never directly affect me. Im sure this ruling will get appealed or dropped from the public eye. So this is all in vain….

 

[Vern Humphrey]

The Constitution does not say the government cannot evesdrop.

It does not say we cannot conduct electronic surveillance of our most deadly enemies since Hitler.

 

[rbernie]

The Constitution does not say the government cannot evesdrop.

In my naiveté, I'd say that the Framers pretty well intended the Fourth Amendment to cover that ground.

It does not say we cannot conduct electronic surveillance of our most deadly enemies since Hitler.

Agreed. But if a US Citizen is involved and the communication under surveillance involves a public utility, get a warrant and have at it.

 

[RealGun]

which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution. - Fox News

I don't see the "freedom of speech" impairment. "Privacy" I get, while noting that it is not explicit in the Constitution or its ancillary documents. As I understand it, it is the warrant or oversight authorization that legally permits privacy to be violated.

 

[FireBreather01]

Let's see -

A special forces raid in Afghanistan, Pakistan, Iraq, Whateverstan, turns up 17phone numbers in the USA. Maybe 24hrs to intercept and listen to the calls from/to those phones to gather intel before word gets out of the compromise. But let's wait 48 hrs to get a judge to issue a warrant - sure, makes sense.

And....

We have terrorists, with no ties to any specific state that themselves care not a whit about Geneva or any other treaties and actively seek to kill and destroy civilians, who are now entitled to enjoy the protections of the United States of America's Constitution and civil rights.

Khruschev was right.

 

[BryanP]

A special forces raid in Afghanistan, Pakistan, Iraq, Whateverstan, turns up 17phone numbers in the USA. Maybe 24hrs to intercept and listen to the calls from/to those phones to gather intel before word gets out of the compromise. But let's wait 48 hrs to get a judge to issue a warrant - sure, makes sense.

The rule is that they are supposed to APPLY for a warrant within 48 hours AFTER they begin surveillance. I don't see how that will slow them down? One clerk is all it takes.

 

[Bartholomew Roberts]

Actually, the rule is even more lenient than that - they can begin surveillance of those numbers immediately and do not have to apply for a warrant until 72 hours after the fact - and the FISA court is available 24/7 to issue such warrants and normally does so within hours of application. The 48 hour rule applies only to law enforcement, not foreign intelligence involving American citizens.

In order to receive a warrant all they have to do is show that gathering foreign intelligence is a significant purpose (not even the only purpose) of the surveillance.

Nobody has yet shown, particularly given the leniency of the FISA court and all the rules and loopholes available for emergencies, how requiring a FISA warrant is such a horrible barrier to effectiveness in the war against terror. Further, everybody supporting this seems to have no problem with the following:

1) The Executive branch deciding who will be monitored without any oversight
2) The Executve branch deciding whether the montioring is legal without any oversight
3) The Executive branch deciding how that information is used without any oversight

The power to direct the NSA's surveillance at American citizens without warrant or oversight is a tremendous amount of power. No single branch of our government should exercise that degree of power without the oversight of another branch. If this program really IS that important and none of the existing emergency provisions adequately cover what is being done, then let's establish an oversight that works rather than leave it solely to one branch of government - you'll thank me later when someone besides Bush is in office.

 

[bakert]

Quote;"you'll thank me later when someone besides Bush is in office".
YES! Although I disagree with President Bush on a number of things,. Who does anyone see in the wings or on the horizon that would do a much better job considering everything?? JMOP

 

[ArmedBear]

But let's wait 48 hrs to get a judge to issue a warrant - sure, makes sense.

The answer to that was the point I made at least 3 times above.

If there's a problem with the process, FIX THE PROCESS. Don't use that as an excuse to throw out all checks and balances. There's no reason that the process has to take 48 hours, or that it has to ruin secrecy.

The notion that 3 people can't keep a secret is bunk. There are many people in the NSA, and many more who could be the sources of information used by the NSA. If the adage were true, there would be no secrets.

If you don't trust just any judge (probably wise), then get some judges with clearance, say high-ranking, longtime JAG officers, and transfer them to the civilian Judiciary Branch.

My point is that there are ways to do this that respect the Constitution, but don't paralyze intelligence gathering. Some of you don't want to think about that, but it's a fact.

Now, as far as the "lawyerization of the military," well, the power and authority given to members of the armed forces are VERY specific and VERY specifically defined. The UCMJ is vigorously, if imperfectly, enforced, with penalties including death, for operating outside the specific authorizations. There are rules about when and where can be shot, under what exact conditions, and who can give the order to do so in what circumstance.

It's simply untrue that our military is effective because it doesn't have laws it must follow. It has plenty, and always has.

 

[Just_a_dude_with_a_gun]

Do you know what this (the no warrant spying thing) really says to me?:

that there are SO MANY people living here in the US that have contacts in, and allegiences to, places that do not like us, and they can't keep track of them, and can't afford the time to get a warrant for all the ones that need watching.

Or maybe that's just me.

Aside from this, the ruling WILL be appealed, and won't be enforced until said
Appeal is processed, and denied. Secondly, once, and if they do have to get warrants, a judge, perhaps like this ACLU absorbed, Jimmy Carter appointee,
will have to sign it. And they probably won't.

 

[Bartholomew Roberts]

Although I disagree with President Bush on a number of things, I'm not sure I agree with that statement. Who do you see in the wings or on the horizon that would do a much better job considering everything?? JMOP

I think you misunderstood my point. My point was that even if you trust President Bush with this degree of power, you are giving the power to an office, not a person. President Bush will be gone in 2008 and eventually someone will hold that office who will abuse this power if it is given.

Secondly, once, and if they do have to get warrants, a judge, perhaps like this ACLU absorbed, Jimmy Carter appointee, will have to sign it. And they probably won't.

The FISA court (which is the court they would have to go to for a warrant) was established in 1972. In 2005 alone, the FISA court approved 2,072 warrants and rejected 0. In the 25+ years the FISA court has existed, it has denied only 5 warrant requests (and one of those was later overturned by the FISA Review Court making the total of denied warrants in 25 years a whopping 4).