Are warrantless wiretaps of domestic targets suspected of terrorist activity legal if the surveillance is approved by the president?
That question, raised by the disclosure of a secret National Security Agency program to eavesdrop on the phone calls and e-mails of terrorism suspects in the USA, is unlikely to be answered in a court of law, according to lawyers, legal scholars and security specialists.
The reason: The surveillance is so secret that its targets are unlikely to know they were wiretapped and thus are unlikely to raise a court challenge. That leaves the legal underpinnings of the program to be debated in Senate hearings expected to begin in early 2006.
Program circumvents 1978 law
“It looks like most of the accountability is going to have to come in the court of public opinion,” says Carl Tobias, constitutional law specialist at the University of Richmond law school in Virginia.
On Friday, The New York Times reported that
President Bush had signed an executive order authorizing the NSA to monitor phone calls and e-mails of citizens, legal residents and foreigners for signs of terrorist activity. The order, signed months after the Sept. 11, 2001, terrorist attacks, requires one party to the communication to be outside the USA.
The program, which the Times said targeted “hundreds, perhaps thousands” of people in the USA, circumvented a 1978 law that permits anti-terrorist surveillance in the USA with permission from a special federal court.
The NSA has satellites and other equipment able to tap and store vast amounts of information from telephone calls, e-mails and satellite transmissions around the globe. Bush and other administration officials later confirmed the existence of the surveillance operation.
On Monday, Attorney General Alberto Gonzales said the Constitution and a Sept. 14, 2001, congressional resolution allowed Bush to authorize the surveillance. In some cases, Gonzales said, seeking warrants would take too much time and would allow suspects to elude eavesdroppers.
Barry Steinhardt, privacy law specialist with the
American Civil Liberties Union in New York City, says he and his colleagues have been “trying to work through” a way to challenge what he called a “policy that makes no sense.”
“So far, nothing has come to mind,” Steinhardt says.
Any criminal charges based on the warrantless searches could prompt a legal challenge. But Richard Sauber, a Washington, D.C., lawyer who defended an American convicted in 1999 of conspiring to spy for East Germany, says such charges are “highly unlikely.”
The federal government, Sauber says, would be reluctant to reveal details of the program by making warrantless surveillance the basis for charges.
Senator to make issue ‘high priority’
No criminal cases are known to have resulted from the warrantless wiretaps. Iyman Faris, an Ohio trucker and naturalized citizen who pleaded guilty in 2003 to supporting al-Qaeda, was said in the Times story to have been caught with the aid of warrantless surveillance. But Faris’ lawyer, David Smith, says federal prosecutors have not acknowledged that.
An eavesdropping target could file a civil suit seeking damages — if he knew he was a target. But finding someone who qualifies, says Fordham University law professor Thomas Lee, is a “shot in the dark.”
Which makes the Senate Judiciary Committee the venue in which the legal underpinnings of the policy are likely to be thrashed out. Sen. Arlen Specter (news, bio, voting record), R-Pa., the committee’s chairman, has promised to make the issues the program raises a “very, very high priority” when hearings are held.
Some specialists in surveillance law think the administration’s defense of its program rests on a shaky foundation.
Steinhardt notes that that law permits authorities to tap without a warrant if seeking one would take too much time. In that case, the warrant can be sought up to 72 hours later.
“There’s a naked assertion here that the president can do anything he wants, including violating U.S. law domestically,” Steinhardt says. “That’s an argument not even a second-year law student would make up on an exam.”
Douglas Kmiec, an attorney in the Justice Department under Presidents
Ronald Reagan and George H.W. Bush and now a law professor at Pepperdine University in Malibu, Calif., notes that the Supreme Court has not ruled out warrantless searches in anti-terrorist cases.
The 1978 law creating a secret warrant process for tapping calls in spying cases within the USA contains an exception in special circumstances.
“To say the president is acting legally or illegally oversimplifies matters,” Kmiec says..
President Bush, Kmiec says, appears to be making ” a good faith argument … to comply with the law as written but not disregarding his obligation to protect American citizens.”
Why? When faced with unsurmountable obstacles in a brutal no-holds-barred life and death struggle for your citizens, REAL leaders F/Ck1ng IMPROVISE, that’s why!
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Reprinted from NewsMax.com
Friday, Dec. 23, 2005 10:34 a.m. EST
FISA Court Discouraged Moussaoui Warrant
Led by the New York Times, a chorus of administration critics have been insisting all week that there was no reason for President Bush to circumvent the Foreign Intelligence Surveillance Court when he sought to wiretap terrorists operating inside the U.S. – since the FISA Court almost always approves such requests.
But that’s not what the Times reported three years ago, after FBI whistleblower Coleen Rowley came forward with the allegation that the Bureau might have been able to stop the 9/11 attacks if only investigators had been allowed access to the laptop computer of suspected 20th hijacker Zacarias Moussaoui.
Moussaoui was arrested in Minneapolis on Aug. 16, 2001 – nearly four weeks before the 9/11 attacks – after an instructor at a local flight school he attended called the F.B.I. to report that he suspected the Moroccan-born terrorist was up to no good.
In a May 2002 report the Times noted: "Two days later, F.B.I. agents in Minnesota asked Washington to obtain a special warrant to search his laptop computer."
However, there was a problem. The paper explained:
"Recent interviews of intelligence officials by The New York Times suggest that the Bureau had a reason for growing cautious about applying to a secret national security court for special search warrants that might have supplied critical information."
"The F.B.I.," officials told the Times, "had become wary after a well-regarded supervisor was disciplined because the [FISA] court complained that he had submitted improper information on applications."
The secret court went so far as to discipline Michael Resnick, the F.B.I. supervisor in charge of coordinating terrorist surveillance operations, saying they would no longer accept warrant applications from him.
Intelligence officials told the Times that the FISA Court’s decision to reprimand Resnick, who had been a rising star in the FBI, "resulted in making the Bureau far less aggressive in seeking information on terrorists."
"Other officials," the paper said, complained that the FISA Court’s actions against Resnick "prompted Bureau officials to adopt a play-it-safe approach that meant submitting fewer applications and declining to submit any that could be questioned."
Sen. Charles Grassley is among those who think that the FBI might have been able to stop the 9/11 attacks if the FISA Court hadn’t discouraged the Bureau from aggressively pursuing a warrant in the Moussaoui case.
In a January 2002 letter to FBI Director Robert Mueller, Grassley noted that had a search been permitted, "Agents would have found information in Moussaoui’s belongings that linked him both to a major financier of the [9/11] hijacking plot working out of Germany, and to a Malaysian Al Qaeda boss who had met with at least two other [9/11] hijackers while under surveillance by intelligence officials."
This makes me feel just fine, the General agrees with what I said, but he was much more polite about it. Of course, Generals usually do take care to be more polite than the rest of us…
The long version is at this link, (if it stays live) the meat of the story is just below.
http://www.nytimes.com/2005/12/26/politics/26powell.html?th&emc=th
*Of course* the President, our CinC in time of war, chose to bypass some dipshit court that had already single-handedly prohibited gathering intelligence on the perps of 9-11 BEFORE their concerted attack, and then *further* went on to humiliate the Federal Agent who had presented the request for warrant! Why would the President choose to waste more time, expecially in the time of war, arguing his needs with people who had already proved themselves antagonistic, or give them more chances to ruin more excellent intelligence agents? Thank God President Bush has the nerve, the personality, and the guts to do what *has* to be done in war, and the bravery to take the heat from idiots who certainly appear to be nothing but dogs-in-the-manger types anyway.
In many people’s not-so-humble opinions, it should be the FISA court legitimate function, arrogance and lack of knowledge regarding our internal security problems that needs investigating, not the President’s decision to bypass a security roadblock that had already killed 3,000 citizens and thrown the country into a mega-billion dollar recovery. Of course, the *judges* get *their* paychecks no matter what happens to anyone else, or how far the country has to go into deficit spending because they, *the judges* protected the computers of foreign agents on American soil, and then ruined the intelligence agent who tried to get a search warrant !
One thing is for sure; I have never bought books people write about themselves, no matter who they are. But I sure will be standing in line to buy the first issue of President GWB’s Autobiography when he writes it !!!!!