Dec 30 2005
Editorial clean up, thanks to reader Snapple: 12/31/05
What stunning hypocrisy is eminating from the ACLU! They are calling for in investigation into crimes by Bush because he did not follow FISA – a process and set of statutes the ACLU claimed was illegal in 2002 in an amicus brief to the government’s first ever challenge to the FISA Court (FISC). Here is a link to the brief.
Here is the FISA Review Court’s determination on the ACLU claim:
We are, therefore, grateful to the ACLU and NACDL for their briefs that vigorously contest the governmentâ€™s argument. Both NACDL (which, as we have noted above, presents only the argument that the statute as amended is unconstitutional) and the ACLU rely on two propositions. The first is not actually argued; it is really an assumptionâ€“that a FISA order does not qualify as a warrant within the meaning of the Fourth Amendment. The second is that any government surveillance whose primary purpose is criminal prosecution of whatever kind is per se unreasonable if not based on a warrant.
And so now they claim it is illegal for Bush to side step laws they consider illegal. Now that’s pretzel logic!
And what did the FISA Review Court determine?
Amici particularly focus on the differences between the two statutes concerning notice.24 Title III requires notice to the target (and, within the discretion of the judge, to other persons whose communications were intercepted) once the surveillance order expires. 18 U.S.C. Â§ 2518(8)(d). FISA does not require notice to a person whose communications were intercepted unless the government â€œintends to enter into evidence or otherwise use or discloseâ€ such communications in a trial or other enumerated official proceedings. 50 U.S.C. Â§ 1806(c). As the government points out, however, to the extent evidence obtained through a FISA surveillance order is used in a criminal proceeding, notice to the defendant is required. Of course, where such evidence is not ultimately going to be used for law enforcement, Congress observed that â€œ[t]he need to preserve secrecy for sensitive counterintelligence sources and methods justifies elimination of the notice requirement.â€ S. REP. at 12.
Based on the foregoing, it should be evident that while Title III contains some protections that are not in FISA, in many significant respects the two statutes are equivalent, and in some, FISA contains additional protections.25 Still, to the extent the two statutes diverge in constitutionally relevant areasâ€“in particular, in their probable cause and particularity showingsâ€“a FISA order may not be a â€œwarrantâ€ contemplated by the Fourth Amendment. The government itself does not actually claim that it is, instead noting only that there is authority for the proposition that a FISA order is a warrant in the constitutional sense. See Cavanagh, 807 F.2d at 790 (concluding that FISA order can be considered a warrant since it is issued by a detached judicial officer and is based on a reasonable showing of probable cause); see also Pelton, 835 F.2d at 1075 (joining Cavanagh in holding that FISA procedures meet constitutional requirements); Falvey, 540 F. Supp. at 1314 (holding that unlike in Truong, a congressionally crafted warrant that met Fourth Amendment standards was obtained authorizing the surveillance). We do not decide the issue but note that to the extent a FISA order comes close to meeting Title III, that certainly bears on its reasonableness under the Fourth Amendment.
OK, they argue FISA does not conflict with the 4th ammendment.
What about warrentless searches (which means FISA-less searches)?
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
That analysis, in our view, rested on a false premise and the line the court sought to draw was inherently unstable, unrealistic, and confusing. The false premise was the assertion that once the government moves to criminal prosecution, its â€œforeign policy concernsâ€ recede. As we have discussed in the first part of the opinion, that is simply not true as it relates to counterintelligence. In that field the governmentâ€™s primary purpose is to halt the espionage or terrorism efforts, and criminal prosecutions can be, and usually are, interrelated with other techniques used to frustrate a foreign powerâ€™s efforts. Indeed, the Fourth Circuit itself, rejecting defendantâ€™s arguments that it should adopt a â€œsolely foreign intelligence purpose test,â€ acknowledged that â€œalmost all foreign intelligence investigations are in part criminal investigations.â€
This last bit is interesting. It points to the conflict of opinion, and the now debunked Gorelick Wall. There is no lessening of the need to protect this country as criminal prosecutions go forward. There is no either-or choice – but parallel and unhindered co-existance.