"America is like a healthy body and its resistance is threefold: its patriotism, its morality, and its spiritual life. If we can undermine these three areas, America will collapse from within."
--Joseph Stalin

Tuesday, November 21, 2006

“But Billy Did It!”: Warrantless Surveillance Not “Un-Warranted”

Will Malven

In the intervening days since it was first revealed that President Bush

“approved consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to Al Qaeda and related terrorist organizations,”

there has been a lot of crosstalk concerning the “violation of the law” vs. “power of the President.”  When the hate talk hit fever pitch, the Administration and its defenders came out with a barrage of responses, all relating to the fact that this kind of activity was done by President Bill Clinton and has been occurring fairly regularly since FISA first came into being.  It has been said by me, as well as by the President’s critics, that this is the same unfortunate argument a fifth grader might use in defending his actions, “but Billy did it!”  Well, that’s true as far as it goes, but I soon realized that this excuse is used all the time in politics and in our justice system.  It is the much alluded to and lauded (by the Left in particular) principle of “stare decisis.”

Yep, the Democrat Senator’s favorite legal principle, especially when it comes to “abortion rights,” stare decisis is being invoked by the Bush Administration to bolster the argument that the President possesses the power, under certain circumstances and free of any restriction, to authorize the Attorney General to approve electronic monitoring without obtaining a FISA court’s prior approval.  You see, it seems that Billy really did do it, as did both Jimmy Carter, and Ronald Reagan.  In fact warrantless wire-tapping pre-dates FISA.  This activity was done by FDR in the ‘30s when his Attorney General requested the authority so he could empower J. Edgar Hoover and the FBI to perform wiretaps (which were illegal even for criminal activity) to try to get Axis agents. In placing this request he emphasized that FDR would be acting as Commander In Chief to protect this nation from foreign powers.  This was carried forward by every succeeding administration, Truman, Eisenhower, Kennedy, every single one. 

The fact of the matter is President Jimmy Carter issued Executive Order 12139 which allowed for the gathering of intelligence “without a warrant” under certain circumstances.  In responding to this, it has rightfully been pointed out that this Executive Order 12139 specifically requires the monitoring to comply with all provisions of FISA’s Section 1802 which requires that there is “no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party.” Bill Clinton also signed an executive order 12949 which had to do with physical searches without a court signed warrant and his order specifically requires that all such searches comply with USC 50 chapter 36, subchapter II, section 1822, which asserts that no US person is involved.  However Bill Clinton did authorize such a search and seizure against Aldrich Ames, who was a citizen of the United States.  He did this because he was capable of using the “inherent powers of the President” as described by Jamie Gorelick in her testimony before the Senate Intelligence Committee on July 14th, 1994.
“The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified "and that the President may, as has been done, delegate this authority to the Attorney General." It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities.”

So, according to the Clinton Department of Justice, this power to conduct warrantless searches inheres to the office of President of the United States. Would that Ms. Gorelick have been as avid to protect America by allowing the free flow of information between domestic and foreign intelligence sources, rather than raising and strengthening the “wall” between the two (funny how the Left seem to like walls, “wall of separation between church and state,” wall between domestic and foreign intelligence, oh well that’s a column for a different time).  Now however, the argument is being made that Jamie Gorelicks statement “pre-dated” the FISA subchapter on physical search and seizure and therefore does not pertain to the current circumstances.  The problem with that argument is that it ignores the meaning of the phrase “inherent authority.”  If a power is “inherent” to an office, that means it is a “native right” and exclusive of any other authority.  Meaning, FISA cannot apply.  The 4th Circuit Court’s ruling in US v. Truong Dinh Hung seems to support this argument to wit: 

"the executive branch should be excused from securing a warrant only when the surveillance is conducted 'primarily' for foreign intelligence reasons." 629 F.2d at 915. The court held, however, that warrantless surveillance was not permitted "once surveillance becomes primarily a criminal investigation," or "when the government is primarily attempting to form the basis for a criminal prosecution." Id. at 915.1
Thus we have the testimony of Jamie Gorelick, Deputy Attorney General under Bill Clinton, and the Truong ruling in support of the President’s order. To that I would add Presidential Order 12333, issued by President Ronald Reagan.  President Reagan’s order differs from those of Carter and Clinton in stating that warrantless surveillance is lawful if approved by the Attorney General:

“provided that no foreign intelligence collection by such agencies may be undertaken for the purpose of acquiring information concerning the domestic activities of United States persons”[my emphasis].

That little phrase “for the purpose of” carries a world of difference in meaning.  The government is still under injunction from spying on United States persons if that is their purpose, but not if it is incidental to surveillance of a foreign agent.

The final piece of the puzzle is what is being “monitored” and how it was being done.  You whining “civil libertarians,” anti-government libertarians, and paranoid “tin hat” devotees, get real.  You are not that important, unless you have been talking to Osama bin Laden...HAVE YOU?  This monitoring is not being done by 4,000 g-men wearing a pair of headphones hunkered down over a little radio listening to individual phone calls, honest, it’s not, I promise you. What is being discussed is a bank of computers, monitoring thousands of phone calls searching for key phrases and words or names.  If the computer kicks out a positive hit, it then goes to someone in the NSA who gives it a quick read to see if it is relevant. Only if it is considered relevant, is it then given a careful examination.  This is not the case of “massive domestic espionage” which is implied by the New York Times and the babbling head-bobbers on the Left.  It is just prudent surveillance, besides...


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