"ALL CAPS IN DEFENSE OF LIBERTY IS NO VICE."

Thursday, December 29, 2005

SCOTUS AND FISA COURT OF REVIEW: WARRANTLESS SEARCHES FOR SPECIAL PURPOSES ARE OKAY

FISA Court of Review (In re: Sealed Case No. 02-001; Argued 9/9, 2002; Decided 11/18, 2002):
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.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. [...]

The question before us is the reverse, does FISA amplify the President’s power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government’s contention that FISA searches are constitutionally reasonable. [...]

Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close.
Here's more:
Supreme Court’s Special Needs Cases

The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court’s approval of entirely warrantless and even suspicionless searches that are designed to serve the government’s “special needs, beyond the normal need for law enforcement.” Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted)) (random drug-testing of student athletes).32 Apprehending drunk drivers and securing the border constitute such unique interests beyond ordinary, general law enforcement. Id. at 654 (citing Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), and United States v. Martinez- Fuerte, 428 U.S. 543 (1976)).

A recent case, City of Indianapolis v. Edmond, 531 U.S. 32 (2000), is relied on by both the government and amici. In that case, the Court held that a highway check point designed to catch drug dealers did not fit within its special needs exception because the government’s “primary purpose” was merely “to uncover evidence of ordinary criminal wrongdoing.” Id. at 41-42. The Court rejected the government’s argument that the “severe and intractable nature of the drug problem” was sufficient justification for such a dragnet seizure lacking any individualized suspicion. Id. at 42. Amici particularly rely on the Court’s statement that “the gravity of the threat alone cannot be dispositive of questions concerning what means law enforcement officers may employ to pursue a given purpose.” Id.

But by “purpose” the Court makes clear it was referring not to a subjective intent, which is not relevant in ordinary Fourth Amendment probable cause analysis, but rather to a programmatic purpose. The Court distinguished the prior check point cases Martinez-Fuerte (involving checkpoints less than 100 miles from the Mexican border) and Sitz (checkpoints to detect intoxicated motorists) on the ground that the former involved the government’s “longstanding concern for the protection of the integrity of the border,” id. at 38 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)), and the latter was “aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways.” Id. at 39. The Court emphasized that it was decidedly not drawing a distinction between suspicionless seizures with a “non-law-enforcement primary purpose” and those designed for law enforcement. Id. at 44 n.1. Rather, the Court distinguished general crime control programs and those that have another particular purpose, such as protection of citizens against special hazards or protection of our borders. The Court specifically acknowledged that an appropriately tailored road block could be used “to thwart an imminent terrorist attack.” Id. at 44. The nature of the “emergency,” which is simply another word for threat, takes the matter out of the realm of ordinary crime control.33

Conclusion

FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.

We acknowledge, however, that the constitutional question presented by this case–whether Congress’s disapproval of the primary purpose test is consistent with the Fourth Amendment–has no definitive jurisprudential answer. The Supreme Court’s special needs cases involve random stops (seizures) not electronic searches. In one sense, they can be thought of as a greater encroachment into personal privacy because they are not based on any particular suspicion. On the other hand, wiretapping is a good deal more intrusive than an automobile stop accompanied by questioning.

Although the Court in City of Indianapolis cautioned that the threat to society is not dispositive in determining whether a search or seizure is reasonable, it certainly remains a crucial factor. Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.
Relevant Footnotes:
29 An FBI agent recently testified that efforts to conduct a criminal investigation of two of the alleged hijackers were blocked by senior FBI officials–understandably concerned about prior FISA court criticism–who interpreted that court’s decisions as precluding a criminal investigator’s role. One agent, frustrated at encountering the “wall,” wrote to headquarters: “[S]omeday someone will die–and wall or not–the public will not understand why we were not more effective and throwing every resource we had at certain ‘problems.’ Let’s hope the National Security Law Unit will stand behind their decisions then, especially since the biggest threat to us now, [Usama Bin Laden], is getting the most ‘protection.’” The agent was told in response that headquarters was frustrated with the issue, but that those were the rules, and the National Security Law Unit does not make them up. The Malaysia Hijacking and September 11th: Joint Hearing Before the Senate and House Select Intelligence Committees (Sept. 20, 2002) (written statement of New York special agent of the FBI).

30 The Court in a footnote though, cited authority for the view that warrantless surveillance may be constitutional where foreign powers are involved. Keith, 407 U.S. at 322 n.20.

31 To be sure, punishment of a U.S. person’s espionage for a foreign power does have a deterrent effect on others similarly situated.

32 The Court has also allowed searches for certain administrative purposes to be undertaken without particularized suspicion of misconduct. See, e.g., New York v. Burger, 482 U.S. 691, 702-04 (1987) (warrantless administrative inspection of premises of closely regulated business); Camara v. Municipal Court, 387 U.S. 523, 534-39 (1967) (administrative inspection to ensure compliance with city housing code).
CLEARLY, THIS DECISION BY THE FISA COURT OF REVIEW PROVES THAT THE SCOTUS HAS APPROVED WARRANTLESS SEARCHES OF US CITIZENS; "(Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (internal quotation marks omitted))."

CLEARLY, THE FISA COURT OF REVIEW HAS DECIDED THAT WARRANTLESS SEARCHES OF US PERSONS FOR SPECIAL NEEDS IS OKAY.

THE 2001 AUMF CLEARLY DEFINES THE SPECIAL NEED - AND THE TARGETS: AL QAEDA AND ITS AFFILIATES.

SINCE THE "PROGRAMMATIC PURPOSES" OF THE NSA INTERCEPTS PROGRAM AUTHORIZED BY THE POTUS WAS NOT CRIMINAL LAW ENFORCEMENT, BUT NATIONAL DEFENSE (TO INTERCEPT COMMUNICATIONS BETWEEN AL QAEDA, OR ITS AFFILIATES, AND THEIR AGENTS INSIDE THE USA), THE PROGRAM IS BOTH LEGAL AND CONSTITUTIONAL.

END OF STORY.

10 comments:

Sigmund, Carl and Alfred said...

VERY good stuff.

Well done.

Anonymous said...

If the President has "inherent authority to conduct warrantless searches to obtain foreign intelligence information" then how can FISA be said to amplify this power unless the power also has inherent limits.

"assuming that is so, FISA could not encroach on the President’s constitutional power." FISA here is referring to the FISA court, not the FISA code. This is a fundamental misunderstanding of this case. This case was over restrictions that the FISA court had placed on a warrant that it had granted. The review court held that the court could not further restrict the warrant if there was reason to grant it. If this judgement had been that the FISA regulations had no power over the executive branch, then the FISA court might as well have disbanded, since they would no longer have the ability to reject any warrant (note that they did continue to reject and modify warrant requests after this decision).

reliapundit said...

TO ANONYMOUS:

the decison is offered NOT because of this case itself, but because within the decision are admissions about the power of the POTUS to order WARRANTLESS SEARCHES AND SURVELLANCE.

of course, FISA has complete authority over US attorneys - even the USA AG - UNLESS AND UNTIL THEY ARE SO ORDERED BY THE POTUS FOR NATIONAL SECURITY REASONS INVOVING FOREIGN THREATS.

QUOTE:

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.26 It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. 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. ...

But by “purpose” the Court makes clear it was referring not to a subjective intent, which is not relevant in ordinary Fourth Amendment probable cause analysis, but rather to a programmatic purpose. The Court distinguished the prior check point cases Martinez-Fuerte (involving checkpoints less than 100 miles from the Mexican border) and Sitz (checkpoints to detect intoxicated motorists) on the ground that the former involved the government’s “longstanding concern for the protection of the integrity of the border,” id. at 38 (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985)), and the latter was “aimed at reducing the immediate hazard posed by the presence of drunk drivers on the highways.” Id. at 39. The Court emphasized that it was decidedly not drawing a distinction between suspicionless seizures with a “non-law-enforcement primary purpose” and those designed for law enforcement. Id. at 44 n.1. Rather, the Court distinguished general crime control programs and those that have another particular purpose, such as protection of citizens against special hazards or protection of our borders. The Court specifically acknowledged that an appropriately tailored road block could be used “to thwart an imminent terrorist attack.” Id. at 44. The nature of the “emergency,” which is simply another word for threat, takes the matter out of the realm of ordinary crime control.33

[...]


FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.” After the events of September 11, 2001, though, it is hard to imagine greater emergencies facing Americans than those experienced on that date.

[...]

Our case may well involve the most serious threat our country faces. Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close. We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable.

END QUOTE.

end of story.

reliapundit said...

to reiterate:

QUOTE:

Rather, the Court distinguished general crime control programs and those that have another particular purpose, such as protection of citizens against special hazards or protection of our borders. The Court specifically acknowledged that an appropriately tailored road block could be used “to thwart an imminent terrorist attack.” Id. at 44. The nature of the “emergency,” which is simply another word for threat, takes the matter out of the realm of ordinary crime control.33


END QUOTE.

as long as the programmatic intent is NOT crime control but national security than the POTUS can order searches and seizures.

Nixon MAY have abused this power - to use against his personal/poltical enemies (though certainly not to the degree of let's say Uncle Joe Stalin!

IN FACT: I know someone who was on Nixon's enemies list and he wasn;t even EVER audited by the IRS, or called or visiited by the FBI - and he was a former card-carrying member!)

The fact that Nixon ABUSED it doesn;t means that subsequent POTUS no longer have it.

Shoud Bush be requried to provethat the NSA program was well intentioned and properly run?

Perhaps - but only to the Leaders of Congress, (in the Senate: the president pro tem, the Majority Leader and Minority Leader, and the Chair and ranking members of the Select Intel Committee; in the House: the Speaker and the Minority Leader and Majorty Leader, and the Chair and Ranking member of the Intel Committee).

If the Democrats don't like what they hear, then they should make an issue out of it in 2006.

reliapundit said...

BTW, anonymous, why not just use this for your handle:

65.68.236.# (HOLLY TAYLOR)

Joe Yangtree said...

reliapundit -- "If the Democrats don't like what they hear, then they should make an issue out of it in 2006."
Acually, there will be an issue of this in 2006, and it's not just Democrats that will be making it. I certainly look forward to a good constitutional showdown. Apparently there are some people who don't consider this case to be closed yet. I'll be happy to come and comment further and more extensively after the congresion hearings that are being scheduled. I'm sure we'll know more about the program, it's scope, and how it was used at that time.

reliapundit -- "BTW, anonymous, why not just use this for your handle 65.68.236.# (HOLLY TAYLOR)"
Were that my name, I might consider it. Care to take another guess as to my birth name?
BTW, I assume that this is your "MORE EXTREME MEASURES" that I've forced you to take in fear of my posts. I think you'll have to do a little better, like actually figure out who I am first. Here's a hint -- I'm male, assuming Holly is a woman's name.

reliapundit -- "the decison is offered NOT because of this case itself, but because within the decision are admissions about the power of the POTUS to order WARRANTLESS SEARCHES AND SURVELLANCE." -- Because courts of law are well known for holding forth on issues not addressed before them; actually, I beleive that the opposite is true. In fact, look at your next quote, "It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority **in the case before it**." In other words, this case was brought to see if the FISA court could further place restrictions on the warrants and they have sought to do that, not say that FISA is toothless compared to the executive.

As far as the "special needs" argument, this is valid, but will be difficult to make the case for, given the number of warrants in question and the time they were active. I kind of doubt that "we didn't have enough evidence to get these granted by the FISA court, so we skipped that step" is going to fly as a special need. As many have pointed out, the government can start monitiring and delay getting a warrant for 72 hours, so the "special need" is going to be hard to get.

"We, therefore, believe firmly, applying the balancing test drawn from Keith, that FISA as amended is constitutional because the surveillances it authorizes are reasonable." -- A very strange statement indeed from a court that you posit is no longer needed as long as the President wants a warrant granted.

The bottom line of this case is that the President does have constitutional authority to perform surveillance, but that has been limited by the (as noted) also constitutional FISA. This case will come down to which is pre-eminent FISA or the President's inherent authority. Obviously, the courts have recognized this authority before and recognized its limits before, so the gray area needs to be further defined.

At least you've gotten off arguing that this was all legal under FISA. You and the President have a much better case here. Just ask Alberto Gonzales.

reliapundit -- "FISA’s general programmatic purpose, to protect the nation against terrorists and espionage threats directed by foreign powers, has from its outset been distinguishable from “ordinary crime control.”
reliapundit again -- "SINCE THE "PROGRAMMATIC PURPOSES" OF THE NSA INTERCEPTS PROGRAM AUTHORIZED BY THE POTUS WAS NOT CRIMINAL LAW ENFORCEMENT, BUT NATIONAL DEFENSE (TO INTERCEPT COMMUNICATIONS BETWEEN AL QAEDA, OR ITS AFFILIATES, AND THEIR AGENTS INSIDE THE USA), THE PROGRAM IS BOTH LEGAL AND CONSTITUTIONAL."
You have a bad habit of quoting things that contradict you. As I've noted before, the reason behind the intercepts is not limited in FISA to "CRIMINAL LAW ENFORCEMENT." Just the opposite in fact.

reliapundit said...

the FISA court of review wrote:

"The Court [scotus] specifically acknowledged that an appropriately tailored road block could be used “to thwart an imminent terrorist attack.” Id. at 44. The nature of the “emergency,” which is simply another word for threat, takes the matter out of the realm of ordinary crime control.33"

The NSA program is - in a manner of speaking - "an appropriately tailored roadblock."

FISA also wrote:

"The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court’s approval of entirely warrantless and even suspicionless searches that are designed to serve the government’s “special needs, beyond the normal need for law enforcement.”

MEaning that SCOTUS has gone on record APPROVING court-orderless searches and surveillance authorized by the POTUS if they are BEYOND law enforcement and are for national security.

This is NOT my argument; it is that of Sunstein and Schmidt. TWO LIBERALS.

Buh Byee.
Happy New Year.

BTW: that "holly stuff" is your ip address. i can block you if i want.
that would be my extreme measure.

remember: if you post comments which are not germaine i will delete them.

i almost deleteed this one - but the non-germaine personal attacks in it were minor/a small percentage and in the spirit of fairplay i have not deleted them.

i could have copied the comment and re-posted it without the offensive parts.

instead i will warn you one more time: keep the comments to the matter at hand or i will delete them and block you.

and, i will attack you personally and viciously with foul language if you attack me at all. i will not allow personal attacks on me to go uncountered. and i will resoprt to any and all measn - including foul language to make it clear to you and other troll-like cpmmenters that their non-germaine comments are not wanted.

there is no need to write stuff like:

"I've forced you to take in fear of my posts."

i fear NOTHING. Certainly not an asshole who writes shit like this.

next time youi do it you are THROUGH.

GET IT?!?!

buh-byee.

reliapundit said...

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/12/30/the_case_for_surveillance/

CHARLES FRIED
The case for surveillance

By Charles Fried | December 30, 2005

PRESIDENT GEORGE W. BUSH has acknowledged that he authorized surveillance of electronic communications between people in the United States and people beyond our borders without asking for court authorization. The president claims that congressional authorization for military action against Al Qaeda, together with his inherent constitutional powers, make such action lawful. There is some plausibility to that claim but until tested in the courts it is impossible to give a definitive opinion about it.

I am convinced of the urgent necessity of such a surveillance program. I suppose but do not know -- the revelations have been understandably and deliberately vague -- that included in what is done is a constant computerized scan of all international electronic communications. (The picture of a G-Man in the basement of an apartment house tapping into a circuit board is certainly inapposite.)

Programmed into this computerized scan are likely to be automatic prompts that are triggered by messages containing certain keywords, go to certain addresses, occur in certain patterns or after specific events. Supposedly those messages that trigger these prompts are targeted for further scrutiny.

In the context of the post-9/11 threat, which includes sleeper cells and sleeper operatives in the United States, no other form of surveillance is likely to be feasible and effective. But this kind of surveillance may not fit into the forms for court orders because their function is to identify targets, not to conduct surveillance of targets already identified. Even retroactive authorization may be too cumbersome and in any event would not reach the initial broad scan that narrows the universe for further scrutiny.

Moreover, it is likely that at the first, broadest stages of the scan no human being is involved -- only computers. Finally, it is also possible that the disclosure of any details about the search and scan strategies and the algorithms used to sift through them would immediately allow countermeasures by our enemies to evade or defeat them.

If such impersonal surveillance on the orders of the president for genuine national security purposes without court or other explicit authorization does violate some constitutional norm, then we are faced with a genuine dilemma and not an occasion for finger-pointing and political posturing.

If the situation is as I hypothesize and leads to important information that saves lives and property, would any reasonable citizen want it stopped? But if it violates the Constitution can we accept the proposition that such violations must be tolerated?

We should ask ourselves what concrete harm is done by such a program. Is a person's privacy truly violated if his international communications are subject to this kind of impersonal, computerizerd screening? If it is not, at what stage of further focus do real, rather than abstract and hysterical concerns arise? And to what extent is the hew and cry about this program a symptom of a generalized distrust of all government, or of just this administration?

If of all government, then we are in a state of mind that renders us incapable of defending ourselves from real threats. If of this administration, then can we afford to disarm the only government we have until the result of the next election, which is likely to be as partisan and closely divided as the last?

The resolution of this dilemma to allow both the use of an important tool of national security and respect for the rule of law needs ingenuity, discretion, and a good faith search for sensible solutions. So far I have heard only alarmist and hyperbolic pronouncements calculated neither to illuminate nor resolve this problem.

Charles Fried teaches constitutional law at Harvard Law School. He served as solicitor general in the second Reagan administration and as a justice on the Supreme Judicial Court of Massachusetts.

reliapundit said...

yangtree:

1 - your argument that FISa makes bush's limits authority is bogus. no statute can do that. the constitution trumps a statute everytime

2 - bush and gonzales make the most powerful case whwn thwey use the constituional argument; they make it stroinger when coupled with the AUMF - which proves that we are NOW at war with al Qaeda and its affiliates, and that thereore the NSA program is noty a witchhunt , but a reasonable respnse to the very realk threrat.

3 - reasonableness is the ultimate test of a search/seizure/and surveillance.

4 - other arguments which limit themselves to merely statutory bases are fine, but not as powerful as the constitutional/aumf one.

that's why bush/ginzales are making it.

but that DOES NOT MEAN that FISA CLEARLY outlaws what Bush authorized.

as i have posted NUMEROUS times, variuous decisions by SCOTUS. the FISA COIURT OF REVIEW, the FISA Court, and other federa District Courts have made rulings which back up the contention that:

a - al Qaeda is a foreign power under defintion of 1801 (a) 1) and (2)

b - the POTUS can order searches, seizures and surveillance of US persons who are al Qaeda.

THEREFORE, it is wrong to argue - as you do - that because Bush and Gonzales proffer a constitutional/AUMF argument
that they are conceding tha they violated FISA.

as CHARLES FRIED of HARVARD wote: there is a gray area in this realm - as in most contentious realms of the law.

for you to argue it is black & white - that bush violated FISA is just WRONG.

certainly the ACLU - an organization which never fails to oppose USA national security interests - will make these arguments anyway; they will ULTIMIATELY lose.

buh byee.

reliapundit said...

joe: get your own blog, and trash me as much as you want at it.

(it's free! go to blogger dot com.)

you may leave PITHY comments here (that measn short) with links here, if they do not contain personal attacks - with or without foul langauge.

i will delete anyhting which i want.
it's my blog.

i have never had a troll like you before.

remember: i visit my blog a lot, and can easily delete your comments.

you are wasting your time more than mine.

happy new year.