Dec 30 2005
Legal Warrantless Searches
Here is a great discussion of legal warrantless searches, which combined with the basic fact the Constitution, and the powers it subscribes to the President, supercedes any legislation out of Congress (hing: FISA) results in a really bad year to come for the impeachment crazed left.
Several types of search and seizure have long been considered appropriate under the Fourth Amendment, even when not supported by warrant. In particular, the principle of “hot pursuit” has been applied, where, if the police are chasing a fugitive and they see him take refuge in your house, they can enter your house without a warrant and make an arrest. In addition, searches of your person and effects at airports, courthouses, and other public buildings are considered reasonable because of the security threat, and because you’re voluntarily entering the area that requires the search. So, warrantless searches are legal if they’re considered “reasonable.”
Now, if you re-read the Fourth Amendment, you’ll see that it applies to your “person, house, papers, and effects,” but not to your communications. However, in 1967, an activist Supreme Court twisted the constitution to make it say what they thought it should say. Since then, warrants are required for some wiretaps. It seems that the Supremes assumed that the Founding Fathers didn’t mention communications in the Fourth Amendment because there were no communications in 1789, not realizing that the Constitution expressly authorized Congress to set up the Post Office without making mail secure from government snooping. Be that as it may, in the 1967 case, the Supremes noted that warrant requirements do not apply to issues of national security.
Good stuff.
Thank you, AJ, you’ve done a lot of really good work on this.
I think the 4th Amendment hub-bub on FISA cases is “apples and oranges” though, anyway. These are not instances of a cop with a hunch about some shifty-eyed bystander, where the cop’s gut instinct doesn’t cut the mustard for probable cause.
On such warrantless searches, in criminal cases, the “remedy” for overzealousness is suppression of evidence collected against Shifty-eyes, not impeachment (or job termination) of the officer or his superior.
In NSA cases, any initial surveillance is done, not by law enforcement agents with arrest powers, but by intelligence officers. Any subsequent ‘case building’ against citizens inside the US must be handed over to a different agency, such as the FBI. So, with or without a FISA warrant, the spirit of 4th Amendment protection, ie., “insertion of an objective reviewer between the accuser and accused” is retained.
The far left, especially, seems to disregard the basic fact that the Bill of Rights was not intended to help criminals escape justice. Relevant provisions were designed to protect innocent persons from false or faulty charges, and from being coerced or duped into becoming witnesses against themselves.
CNN beginning the 4 pm “Day Room” is
reporting “whistleblowers”!
Got it? They are not “leakers”.
They are UPSTANDING WHISTLE BLOWERS!
Wonder if Tradespots will put up a bet
on the LSM ratio of the words:
Leakers
Whistleblowers
know where I would put my money.
[…] UPDATE: AJ Strata has a great insight into the issue of FISA, warrantless wiretaps and the Fourth Amendment that’s must-reading. Here’s the main quote from the article: Several types of search and seizure have long been considered appropriate under the Fourth Amendment, even when not supported by warrant. In particular, the principle of “hot pursuit†has been applied, where, if the police are chasing a fugitive and they see him take refuge in your house, they can enter your house without a warrant and make an arrest. In addition, searches of your person and effects at airports, courthouses, and other public buildings are considered reasonable because of the security threat, and because you’re voluntarily entering the area that requires the search. So, warrantless searches are legal if they’re considered “reasonable.†[…]
Responding to your comments:
You’re wrong on two key points, AJ —
First, Fitzgerald’s investigation isn’t over, and if you read his report and listen again to his presser, you’ll see that he concluded only that he was unable to determine whether the Plame leak violated the law, because the obstruction by Libby “threw sand in his eyes” and impeded the investigation. He came to NO conclusion regarding the illegality of the leak itself. You’re inventing that out of Fox News talking points…
Second, this statement:
“It is also clear to any 10th grader the constitution trumps FISA (Congress cannot enact laws the supercede the constitution), therefore the NSA’s monitoring of foreign enemies is legal. Even when they talk to their contacts here in the US.”
…is so thoroughly wrong, I have to respectfully ask that YOU do some basic research. Nowhere in the Constitution, not in Article II, which delineates the president’s powers, not in the Fourth Amendment, in short, NOWHERE does the constitution authorize the president to turn the foreign surveillance powers of the wartime military (or the more “newfangled” NSA) on Americans or persons living in the U.S. The FISA statute was created precisely because of the domestic wiretapping “for national security purposes during a time of war (Vietnam)” by Richard Nixon. FISA specifically was Congress’ check on the president’s surveillance powers. Bush ignored FISA as surely as Nixon ignored the existing laws when he conducted domestic wiretaps. Nixon had to resign because of it, A.J. Are you now saying that what Nixon did was legal?
Lastly, we’re not talking about Bush erring by monitorin Al-Qaida, Iraq, Iran or some other foreign power. Of COURSE he’s supposed to do that. That’s part of the job of his NSA, CIA, DIA and other agencies. But the law, and this is the key, EXPRESSLY FORBIDS HIM TO CONDUCT WIRELESS SURVEILLANCE OR ANY OTHER TYPE OF WARRANTLESS SEARCHES ON DOMESTIC SOIL unless he gets a FISA warrant. He chose not to get one. He broke the law. It’s kind of an open and shut case, I’m afraid.
If I could get you to read this article, I think it would be of great use to you and your readers:
http://writ.news.findlaw.com/dean/20051230.html
And if I was a bit snarky in my earlier post, apologies. This is one helluva frustrating argument, because in my opinion it involves clear Constitutional principles we should all be able to agree upon, but which in my opinion are being mowed down by partisan politics.
Cheers to you and happy holidays.
Sorry, belaboring the point a bit, AJ, but here is the entire text of Article II, Section 2 of the U.S. Constitution. You won’t find the powers you described in here:
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”
There is no surveillance power there. And members of Congress WHO WERE THERE say they never granted Bush the power to surveil on domestic soil in either force authorization. So where is this FISA-trumping Constitutional power you’re describing. Please find the EXACT wording in the text of the Constitution for me and point me to it. If you do, I’ll gladly slap a W sticker on the bumper of my SUV…
Reid,
You may want to reread my post more carefully. I never said his investigation was over. I said so far there is determination of leaking of classified material. If this is too much for you to accept, so be it.
The Constitution doesn’t delineate lots of things by modern terms. But gathering intelligence on our enemies has always, always been a military matter.
FISA cannot trump the constitution. If Congress wants to amend the constitution to include enemies on our soill, so be it. But all the constitution says is enemies. You keep referring to FISA as if it is the final determination – it is not. That is why your argument is a non starter. You need to show in the constitution the President cannot monitor our enemies on our soil.
The Congress cannot enact a law to limit the President’s authority – that is clear. What you are tyring to claim, is he doesn’t have the power to monitor our enemies because FISA says so. I suggest you prove why centuries of legal opions are wrong and you are right. Once you have cleared that hurdle we will talk again!
Sorry Reid,
Do your own homework. I find it kind of rude for you to come onto my sight and demand I educate y0u.
Show where in the Constitution the President is barred from monitoring our enemies activities in a time of war.
Knock yourself out.
I’m completely baffled how he can say that the Constitution doesn’t give the President the right to monitor our enemies. Whether they are on our own soil or not.
Take a look at US v. Truong (1980):
Then there was this case in 2002 (sealed case no. 02-001 FISC of Review):
That’s just a few of the MANY cases decided by the higher courts in our land.
But I suspect it’s a lost cause arguing with a leftist like Reid, they decided long ago that Bush was evil incarnate and will spin anything to make this fit their view.
You haven’t even described where the constitution mentions “enemies”, the president’s war and surveillance powers or, to be honest, anything that makes your point — you haven’t, because it isnt’ there. You’re making up text that isn’t in the document. And trust me, I’m not looking for you to educate me. Far from it. But if you don’t want to have the discussion, let’s not. I’ll turn your comment forum back over to those who agree with you.
Reid,
Thanks for making my point as you dodge out the back door. The constitution doesn’t define these, or Miranda Rights, or the Dept of Defense or Dept of education, or a lot of things.
But what you have to accept is the administration argument is valid, and then you have to counter it.
Using FISA to support a FISA claim is circular and therefore baseless.
As you have hedged around is much of the implementation of the Constitution is defined by Congress, executed by the Administration and referreed by the courts. The case law and legal decisions all point to Bush being able to monitor our enemies, even when they make contact with people in the US, or themselves are in the US.
What you seem unable to grasp is intelligence is not the same as evidence for prosecution. FISA deals with evidence for prosecution. And judge’s like Robertson decided they would play ‘omnipotent one’ and unilaterally decide intel could not be used as probably cause to start criminal investigations (of course it can, but leave that aside for a bit).
You have been suckered by the DC propagandists. They have their hook in your mouth good. They tell you this is about spying on Americans and you react like Pavlov’s dog and don’t even question the premise if the argument.
This was never about that. But that is why we have a blogosphere. To fight back against DC power players who like to use information to create followers, verses the ones who use share information and wisdom to create followers. Think about that.
You have hit the nail on the head here:
“Intelligence is not the same as evidence for prosecution. FISA deals with evidence for prosecution. And judges like Robertson decided they would play ‘omnipotent one’ and unilaterally decide intel could not be used as probably cause to start criminal investigations.”
Normally as I surf the news and CSPAN channels, I want to wipe
the smirks off the Leftie mouthpieces who host and appear on
most of these shows.
Nora O’Donnell, who has been filling in for Matthews on Hardball,
has been trying to outdo him all week. Until tonight – Nora is as
subdued as CNN’S “National Security Advisor” was on their 4pm
“Day Room” broadcast.
NBC is very exposed with Andrea Mitchell and Timmy Russert –
may learn the real definition of “hardball”. Mr Mitchell (Fed Chair
Alan Greenspan) is at very end of his term.
Something has wiped the smirks off their faces.
Three stunning statements and then a point:
“The Congress cannot enact a law to limit the President’s authority – that is clear. What you are tyring to claim, is he doesn’t have the power to monitor our enemies because FISA says so. ”
— My God, do you even know the first thing about the Constitution? Congress’ power to enact laws limiting the president’s authority is inherent in the tricameral form of government. In a monarchy, you’re correct, in a democracy, the Congress passes the laws, which the president is sworn to uphold — for example, FISA was passed precisely to limit the ability of future presidents to do what Nixon did: wiretap government employees, supposed “for national security purposes during a time of war…” The Courts also have ability to limit the president’s authority, by acting as the interpreter between the Congressional and executive branches. That’s civics 101
“Show where in the Constitution the President is barred from monitoring our enemies activities in a time of war.”
— He isn’t. He is barred by STATUTE from monitoring persons on domestic soil by the FISA Law. The Constitution gives the president the authority to COMMAND THE ARMED FORCES DURING WAR, and to direct intelligence gathering AGAINST FOREIGN POWERS in that pursuit. FISA covers the gathering of DOMESTIC intelligence. DOMESTIC… FOREIGN… note the difference…
“what you have to accept is the administration argument is valid, and then you have to counter it.”
— hang on, I have to accept that the administration’s argument is VALID and then counter it? HUH????
And now a point: the Truong case was decided BEFORE the FISA law was enacted. It didn’t deal with the FISA statute at all and is therefore irrelevant. If this were 1978, and we were still in the gray area between Nixon’s declaration — identical to Bush’s — that his inherent wartime powers allow domestic surveillance (or as Mr. Nixon put it, allow him to trangress laws in a way that would otherwise be illegal) Truong might matter. But as ThnkProgress put it so well:
…so long as I’m “on my way out the back door…”
I’m starting to think none of you has ever read the FISA law…
Nice Try Joy, but the Congress cannot create legislation to change what the constitution spells out our the powers of the presidency. That is why the process of constitutional changes are spelled out in the document. The idea that Congress can limit the scope of the presidency through the legislative process demonstrates a serious naivette. If so, they could legislate limits on who the President can name to the court! But we all know they cannot do that. Or we all should know this.
Well, if you are not aware of the constitution process, there is not much reason to continue this debate.
You need to knock all these cases down to make your case:
http://powerlineblog.com/archives/012631.php
Enjoy!
Per your post on my blog, AJ, I’m reading through your sources now, but I had to come back over here one more time to let you know I found one thing you said with which I wholeheartedly agree:
“The problem is how do we take legally gained intel on potential attaks (NSA, CIA, etc) and pass that as information for probable cause for law enforcement (FISA, DOJ, FISA).”
Amen, brother. A thousand times, Amen.
Ugh, AJ you’re giving me a migraine. You really believe that congress has no power to constrain the president’s power, and that his power is, essentially, unchecked? You really believe that?
Under our system, each branch of government exercises certain limiting authorities over the other two: the president appoints the justices who interpret the laws passed by congress which the president is constrained to uphold. It’s that circular system of “checks and balances” that keeps us from having a monarchy or dictatorship. Read Article II again, man. PLEASE! We as Americans cannot begin to take the Cuban view of executive authority. The Congress, remember, is the branch of government — the only one, by the way — that has the power to ADD TO THE CONSTITUTION — they can rewrite, with ratification from the states, the very document you assert gives the president supreme power! And if the courts ruled against the president in some instance, would you argue that they lack the power to do so — that they, too, cannot “limit his power”? Come on, AJ, you’re way too smart to believe that…
OVERVIEW OF ELECTRONIC SURVEILLANCE
COMMENTARY
© 2005 National Institute for Trial Advocacy
TITLE 50. WAR AND NATIONAL DEFENSE
CHAPTER 36. FOREIGN INTELLIGENCE SURVEILLANCE
ELECTRONIC SURVEILLANCE
OVERVIEW OF ELECTRONIC SURVEILLANCE
Prof. Daniel D. Blinka
Marquette University Law School
The National Institute for Trial Advocacy
Notre Dame Law School
The Foreign Intelligence Surveillance Act (FISA), 50 USCS §§ 1801-1811, broadly governs electronic surveillance conducted to acquire foreign intelligence information. The term “electronic surveillance” includes interception by “electronic, mechanical, or other surveillance device of the contents of any wire or radio communication.” 50 USCS § 1801(f)(1). Most importantly for present purposes, FISA also regulates video surveillance conducted for foreign intelligence purposes, including “silent video” that captures no aural communication. 50 USCS § 1801(f)(4).
Electronic surveillance under FISA can be initiated in one of two ways. Section 1802 permits the President, through the Attorney General, to authorize video (or other) surveillance, subject to stringent limitations and reporting requirements. More commonly, designated federal officers, with the Attorney General’s approval, may apply for an electronic surveillance order to a specially constituted court. The application’s contents must include a statement of facts that identify the foreign “target,” explain why it is believed that the place or facility to be monitored will yield information, and describe in detail the nature of the information sought and the activities to be monitored. 50 USCS § 1804(a). The applications must also propose “minimization procedures” which must, among other things, reasonably ensure that the video (or other) surveillance minimizes the acquisition and retention of “nonpublicly available information concerning unconsenting United States persons” in a way that is nonetheless “consistent” with the need to collect foreign intelligence information. The statute also prohibits the dissemination of such information. See 50 USCS § 1801(h).
Court orders must contain detailed findings and instructions regarding the scope of the video (or other) surveillance, including its duration and the minimization procedures that must be followed. The order may authorize agents to enter property in order to set up the surveillance equipment. For example, agents might “sneak” into a home, apartment, or office and install a hidden video camera, if so authorized. See 50 USCS § 1805.
Originally enacted in 1978, FISA included “roving surveillance” authority to deal with highly mobile persons who communicate through a variety of devices. In the wake of the September 11, 2001 terrorist attacks, the USA PATRIOT Act (Public Law 107-56) broadened FISA to facilitate the identification and monitoring of suspected terrorists. For example–
(1) Under 50 USCS § 1804, as amended, FISA orders may be issued whenever foreign intelligence gathering is “a significant purpose”; the former law limited FISA to situations in which such intelligence was “the purpose”.
(2) Under 50 USCS § 1805, the periods have been lengthened during which surveillance may be maintained on “non-United States persons,” who are foreign agents.
(3) Roving wiretaps under FISA are now governed by the same procedures that are found in 18 USCS §§ 2510 et seq.
(4) Orders authorizing pen registers or trap-and-trace devices under FISA no longer require proof as to how the target telephone is being used. Amended 50 USCS § 1842 permits such devices to be used in “any investigation to obtain foreign intelligence information not concerning a United States person [as defined in 50 USCS § 1801] or to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment.”
SBD
From (very conservative) Barrons:
I’m just saying…
Rediblog–The above link has a lot of case law. The Troung case was mentioned in this 2002 decision (below), so it is not some relic of the past that is superceeded by the FISA.
Here is one example:
” [I]n 2002, the United States Foreign Intelligence Surveillance Court of Review decided Sealed Case No. 02-001. This case arose out of a provision of the Patriot Act that was intended to break down the “wall†between law enforcement and intelligence gathering. The Patriot Act modified Truong’s “primary purpose†test by providing that surveillance under FISA was proper if intelligence gathering was one “significant†purpose of the intercept. In the course of discussing the constitutional underpinnings (or lack thereof) of the Truong test, the court wrote:
The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power. The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable.
That is the current state of the law.