Tuesday, January 03, 2006
Legal Limits for Wiretapping
I stayed up till 3:30 a.m. last night, exhausting myself for work today, just so I could find and read all of the pathetic arguments for presidential wiretapping.
This is why I hate you. You take memos from the administration at face value and consider the argument over. You make me check up on your homework every day you scrawl your pathetic arguments and you always end up having taken the shortcut to thinking.
You lost any credibility you had in 2002. I no longer consider it a moral imperative to refute your arguments. You are not an intelligent part of the national debate. That means you, Powerline Blog.
I would like to make clear I am addressing the Preznit’s argument, because although he, too, lost any credibility he had years ago, he’s still the president.
One of his legal slaves wrote down the White House’s position. They reference many legal precedents, none of which support the president’s new powers. They also make the argument that the Congressional Authorization to Use Military Force, or “all necessary force,” swung the door open pretty damned wide, an argument I have already refuted.
The legal precedents are what I spent hours reading and rereading last night. They expressly don’t justify the administration’s position.
The memo starts with a long list of justifications for the president to use “force” to repel attacks, even without the approval of congress. How “force” translates to “spying” is a leap of logic covered later.
The legal “precedents” cited in support of warrantless wiretapping for national security purposes are what drew my attention. There are three. The first, In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002), the warrantless wiretapping referenced wasn’t even germane to the issue at hand, and the line was simply a declaration that the FISA Court wasn’t attempting to encroach upon any powers for warrantless searching that the executive branch might have, like surveilling a foreign citizen in a foreign country. Ditto for the second “precedent,” United States v. United States District Court, 407 U.S. 297,308 (1972. The third “precedent” is Justice Byron White’s opinion in Katz v. United States, 389 U.S. 347, 363-64 (1967). White’s opinion was White’s opinion, not a finding of the court. The official conclusion of Katz, relevant to wiretapping for foreign surveillance, was simply that the court was not addressing the legality or illegality of such actions.
The three precedents described above all maintain that the courts were simply not ruling on the limits of foreign surveillance, and not that they were giving or taking away any power of the president. FISA is the only clearly applicable law, as it was designed to be after the abuses of the Nixon administration. Warrantless spying is illegal, according to FISA, unless “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a part,” defined by Title 50 of the United States Code, summarized by FindLaw here. According to The New York Times story, the president has violated FISA and the law.
The courts and FISA have maintained that the president has a limited right to conduct warrantless searches, if the President or Attorney General authorizes the search, the primary purpose of the search is to gather foreign intelligence information, and the search targets a foreign power or its agents and doesn’t involve U.S. persons. For definitions of what “a foreign power or its agents” means look here.
The reason that FISA exists is to ensure that the president doesn’t use his surveillance powers to infringe on our Fourth Amendment right to privacy. The president doesn’t have the right to spy on anyone, anywhere, without any warrant, as long as he gives us his good word that it is for “foreign intelligence” purposes. The courts have expressly rejected that concept, as should anyone with a brain.
What we have now is an Orwellian nightmare, with a president “dedicated” to ferreting out alleged terrorists by rampantly spying on U.S. citizens without warrants or oversight. What’s next, martial law?
The president doesn’t have unrestricted powers to wage war and use the military. He can’t declare war. He can’t order soldiers to commit war crimes or break the law. HE can’t break the law.
I’m not all that angry about the president’s abuse of his surveillance powers, because, despite the fact that he is a profligate liar, I believe he was simply trying to monitor communications between suspected terrorists and their friends/conspirators/whatever. When I called for the president’s impeachment it was not because I think this is a worse crime than others he’s committed: it was because it seems so unambiguously a blatant breach of law, and done so repeatedly for years, and under the cover of secrecy that this White House loves to cloak itself in all too often. This is lawlessness.
# posted by BitterHarvest @ 6:46 PM 
