Wednesday, December 21, 2005

What Power Line Left Behind

I always get suspicious when I read a blog post that contains no embedded or attached hyperlinks.

John Hinderaker wrote at Power Line:

I've been working on and off on the legal issues surrounding the NSA's interception of communications directed to al Qaeda members overseas, some of which originated in the United States. I haven't had time yet to write up a full analysis of the case law. For now, let me just say that the question does not appear to be close. Under all existing authorities, the NSA program, as we understand the facts, was legal.

For now, let me simply quote the November 2002 decision of the United States Foreign Intelligence Surveillance Court of Review, in Sealed Case No. 02-001:

The Truong court [United States v. Truong Dinh Hung, 4th Cir. 1980], 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. *** 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.

And those are cases that deal with electronic intercepts inside the United States. A fortiori, intercepts outside the United States that coincidentally sweep in messages sent from America would seem to be obviously within the President's inherent Article II powers. So far, I have found no authority to the contrary.

Thanks to reader Andrew Strnad.

Hinderaker doesn't provide links to back this up but he does provide asterisks.

Here's a link to the November 2002 opinion (Attached note: This opinion is subject to formal revision before publication in the Federal Reporter).

Here's another to one of the things the asterisks replaced, endnote #26:

26 Although the plurality opinion in Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (en banc), cert. denied, 425 U.S. 944 (1976), suggested the contrary in dicta, it did not decide the issue.

Here's a pdf link to some background on Zweibon v. Mitchell (from a related ACLU brief for FISC, Federal Intelligence Surveillance Court):

Zweibon v. Mitchell involved an FBI wiretap of the Jewish Defense League. See 516 F.2d. at 606. The tap was installed without prior judicial approval and, according to the Attorney General, had been installed to “provide[] advance knowledge of any activities of JDL causing international embarrassment to this country.” Id. at 609. The court rejected the argument that the wiretap was proper notwithstanding the government’s failure to obtain prior judicial approval, basing its argument principally on the finding that a warrant procedure would not fetter the legitimate intelligence-gathering functions of the Executive Branch. See id. at 651. The court also noted the risk that expansive and unchecked executive surveillance powers might chill protected speech. See id. at 634. Although the surveillance in Zweibon was installed under a presidential directive in the name of foreign intelligence gathering for the protection of national security, the targets of the surveillance were neither foreign powers nor their agents. See id. at 614. The court opined in dicta, however, that "absent exigent circumstances, all warrantless electronic surveillance is unreasonable and therefore unconstitutional." Id. at 613-14 (emphasis added).

Contained in a footnote marked #9 at the end of the preceding passage:

9 The Court also noted that a limitation of warrantless surveillance to agents of a foreign power would "not alter the fact that First Amendment rights of others are likely to be chilled." Zweibon v. Mitchell, 516 F.2d. at 635. "Under such a test," the court noted, "a few alien members in a political organization would justify surveillance of the conversations of all members." Id.

But, in all fairness, John Hinderaker hasn't "had time yet to write up a full analysis of the case law" so maybe he'll get to Zweibon v. Mitchell in a future post.

In the meantime, The New York Times is reporting in a story, Spying Program Snared U.S. Calls, written by James Risen and Eric Lichtblau:

A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.

The officials say the National Security Agency's interception of a small number of communications between people within the United States was apparently accidental, and was caused by technical glitches at the National Security Agency in determining whether a communication was in fact "international."

Regardless of what happens - whether or not it is legally or politically determined that President Bush's actions were constitutional - one thing's for sure: Bush lied in 2004.

Now, by the way, any time you hear the United States government talking about wiretap, it requires -- a wiretap requires a court order. Nothing has changed, by the way. When we're talking about chasing down terrorists, we're talking about getting a court order before we do so. It's important for our fellow citizens to understand, when you think Patriot Act, constitutional guarantees are in place when it comes to doing what is necessary to protect our homeland, because we value the Constitution.

Even if civil liberties don't matter that much after you're dead I'm not sure how the White House and its blogger defenders will respond to the latest developments but you can bet they will, with or without attached or embedded hyperlinks.

(NOTE: Congressman Conyers' Downing Street Minutes report recommends censure and further investigations for Bush and Cheney. I haven't had time to read it yet so I'll wait before further commenting but I did notice that an article I worked on at Raw Story with John Byrne and Larisa Alexandrovna - U.S. changed Iraq policy to begin airstrikes months before war - is cited twice: pretty cool).


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