FISA and King George

[Bullypulpit]

And, of course, Chimpy McPresident rushes to sign this gross infringement of the Constitution into law. I have no doubt that this law will face court challenges before it is reviewed in six months, but when those challenges reach the SCOTUS, the arguments against it will fall on deaf ears as Scalia, Alito and Roberts have all made statements which indicate support for a unitary executive.

 

[bush lover]

Our President finally got some help from the terror-loving Dems and passed this law, which gives our President (I like to call him The Decider, has a manly ring to it) the power he needs to combat the evil doers over there instead of here. If our President needs to open our mail and listen to our calls to catch the terrorists over there, then I'm all for it. I have nothing to hide.

 

[Bullypulpit]

Our President finally got some help from the terror-loving Dems and passed this law, which gives our President (I like to call him The Decider, has a manly ring to it) the power he needs to combat the evil doers over there instead of here. If our President needs to open our mail and listen to our calls to catch the terrorists over there, then I'm all for it. I have nothing to hide.

You would have made a good apparatchik in Joe Stalin's Soviet Union, or a good police informer for East Germany's Stasi, given that you really have no grasp of the Constitution or the civil liberties it guarantees. The police state you seem to be advocating for got one step closer when Chimpy McPresident signed that bill into law. Were I you, I'd be careful what you wish for...you may get it. Totalitarian states invariably wind up eating their own, and you'd be a tasty little snack.

 

[ReillyT]

the courts upheld warrantless wiretaps. In Brown, a US citizen's conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In Butenko, the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information.

It is true that the 5th and 3rd Circuits upheld warrantless wiretaps in these two cases. However, these cases do not decide this issue because a) the primary purpose of the wiretaps must be to gather foreign intelligence, and b) these cases pre-dated FISA.

My view (which is by far the less persuasive and less important of the two arguments) is that as the current NSA program (by the admission of the Administration) is partly intended to prevent terrorist attacks in the US (a laudable goal), one of its main purposes is to prevent the commission of crimes, and hence, the primary purpose is not to collect foreign intelligence information. Thus, a warrant is required.

The second argument is much more persuasive: FISA supersedes and qualifies this authority, and establishes safeguards and limits to the executive authority.

The counter-argument that FISA cannot supersede inherent presidential authority is lacking: Youngstown Sheet, 343 US 579 (1952) makes clear that executive authority can be expanded or limited (in short, is defined) by the extent to which it coincides with the will of Congress. As such, by ignoring the criminal prohibitions in FISA, the executive oversteps its lawful authority. This position is fully discussed in a letter to the Congress by a group of law professors (including Lawrence Tribe, Richard Epstein, William Sessions and Deans of Stanford and Yale law schools). Please read the letter as it is much more informative and persuasive than myself. See http://balkin.blogspot.com/FISA.AUMF.ReplytoDOJ.pdf

Finally, to anyone that argues that since they aren't committing any crimes, so why should we care about domestic eavesdropping, it should be noted that at several times in the nation's history, the government has conducted unlawful surveillance and intimidation of purely law-abiding citizens, the motives of which it disagreed. The most famous of these is Martin Luther King, who the FBI tapped and monitored for years, as well as using the information it obtained to intimidate and discredit him. See http://en.wikipedia.org/wiki/Martin_luther_king#King_and_the_FBI

 

[maineman]

bingo. and that is my concern. If government can put a wiretap without warrant on the phone of someone who might be talking with someone overseas who might be a terrrorist, there is nothing structural or procedural in the system that could stop the government from putting a wiretap without warrant on anyone's phone for any reason. The oversight by the judiciary is not meant as an encumberance, but as a reasonable check to prevent unbridled abuse on the part of the executive branch.

FISA is scary enough with the "wiretap now, get a warrant later" sort of philosophy.... but if that second step is eliminated altogether, the potential for the trampling of citizen's rights becomes palpable.

The guy on the C-note said something about those who would sacrifice liberty for a little safety deserve neither. Why does everyone ignore that admonition today?

 

[ReillyT]

The history of warrantless domestic spying is pretty extensive and encompasses both Democratic and Republican administrations. In fact, FDR got the ball rolling with respect to domestic surveillance by the FBI during WWII.

Here is a list (non-exclusive) of groups and persons who have been spied upon by the US government since WWII.

Martin Luther King Jr.
Muhammad Ali
Stokely Carmichael
Angela Davis
Gay Liberation Front
Malcolm X
Huey Newton
US Communist Party
Socialist Workers Party
Ku Klux Klan
Black Panthers
Nation of Islam
American Indian Movement
Students for Democratic Society
Student Nonviolent Coordinating Committee
Black Panthers
Puerto Rican independent groups
Weather Underground

And this doesn’t even address CIA domestic spying which occurred under Operations Chaos & Merrimac through the 60s-70s.

http://en.wikipedia.org/wiki/COINTELPRO#Illegal_surveillance
http://en.wikipedia.org/wiki/Category:COINTELPRO_targets
http://www.serendipity.li/cia/lyon.html
http://en.wikipedia.org/wiki/Project_MERRIMAC
http://en.wikipedia.org/wiki/Project_RESISTANCE
http://www.aarclibrary.org/publib/church/reports/book3/pdf/ChurchB3_9_CHAOS.pdf (Church Committee Report - a good read)

 

[ReillyT]

Also, let us not forget the McCarthy and HUAC hearings, which did not involve wiretaps (that I know of), but were an act of government intimidation of the free expression rights of its citizens.

 

[dilloduck]

Also, let us not forget the McCarthy and HUAC hearings, which did not involve wiretaps (that I know of), but were an act of government intimidation of the free expression rights of its citizens.

Does my free speech include planning an attack on the government and it's institutions ?

 

[ReillyT]

Does my free speech include planning an attack on the government and it's institutions ?

That was nicely besides the point. If there were evidence that you were planning an attack (or engaging in any criminal activity of this nature), a warrant could be easily obtained, even after the wiretap has been instituted. If there isn't evidence that you are planning an attack (or doing anything else of that nature), the government should not be listening at all.

 

[maineman]

Does my free speech include planning an attack on the government and it's institutions ?

silly question. conspiracy is not "free speech", it is criminal. But how does the state determine the presence of a conspiracy? I would suggest that they do so by developing actionable intelligence, obrtaining a warrant, and gathering evidence.

Are you suggesting that we give up the protection from unwarranted search in order to give government the right to wiretap anyone at anytime because they might catch a conspiracy by doing so?

 

[ReillyT]

This reminds me of the saying that you always plan to fight the last war when you should be planning to fight the next one.

Assume that you have complete faith and trust in the current executive branch (how, I don't know). You have no concerns about how this government will utilize the ability to wiretap the conversations (some of them at least) of US citizens without warrants or oversight. You feel perfectly secure.

Now you have set a precedent for executive power. What happens with the next administration, or the one following? What if suddenly the circumstances have changed and you no longer trust those in power, but have already bestowed upon them an inherent structural ability to eavesdrop? Imagine the worst possible executive and then ask yourself what that executive might choose to do with this power.

 

[Bullypulpit]

bingo. and that is my concern. If government can put a wiretap without warrant on the phone of someone who might be talking with someone overseas who might be a terrrorist, there is nothing structural or procedural in the system that could stop the government from putting a wiretap without warrant on anyone's phone for any reason. The oversight by the judiciary is not meant as an encumberance, but as a reasonable check to prevent unbridled abuse on the part of the executive branch.

FISA is scary enough with the "wiretap now, get a warrant later" sort of philosophy.... but if that second step is eliminated altogether, the potential for the trampling of citizen's rights becomes palpable.

The guy on the C-note said something about those who would sacrifice liberty for a little safety deserve neither. Why does everyone ignore that admonition today?

This new FISA bill is even scarier as no time frame was established for court review of surveillance authorized by Gonzalez or the DNI. In the absence of this time frame for court review, there is now no effective oversight of the application of the new powers granted under it. And, BTW, whose bright effing idea was it to give Alberto Gonzalez ANY influence over this process at all. Seig hiel, y'all.