Wiretapping Program Ruled Legal

BuhDuh writes "The New York Times is carrying a story concerning that well known bastion of legal authority, the 'Foreign Intelligence Surveillance' court, which has ruled that the National Security Agency's warrantless eavesdropping program was perfectly legal. It says, 'A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans' private communications may be involved, according to a person with knowledge of the opinion.'"

Re:Cairo

[rubycodez]

you are aware that U.S. citizens are being held at Guantanamo?

The wiretapping law, not the original program

[DragonWriter]

This is about the program under the law passed by Congress which authorized warrantless wiretapping after the President was doing it; not the program which was carried out prior to that by the President in direct contravention to the prohibitions of the statute law existing at the time.

Of course, one might reasonably question whether the decision comports with the Constitution even there, but its an important distinction to make, since there have been issues both with the power of government as a whole and the independent power of the President, regardless of the laws passed by Congress relating to warrantless wiretapping, and the two issues sometimes get muddled.

Re:Motherfucking son of bitch.

[Shakrai]

We can hope with fingers crossed that one of the conservative scumbags retires or dies very soon.

Scumbags really depends on your point of view and the particular case in question. I can think of at least three cases off the top of my head where the so-called liberal justices were the scumbags:

Gonzales v. Raich [wikipedia.org]: The Federal Government can arrest cancer patients for using cannabis even where such use is legal under State law. The liberals (joined by Scalia and Kennedy) all voted in favor of it. O'Connor, Rehnquist and Thomas opposed it.
Kelo v. City of New London [wikipedia.org]: The State can seize your private property for the benefit of private (i.e: Wal-Mart) development. The Liberals (joined by Kennedy) didn't have any problems with this. Scalia, O'Connor, Rehnquist and Thomas all dissented.
District of Columbia v. Heller [wikipedia.org]: The Liberals all dissented in this case, which held that the 2nd amendment protects an individual right to keep and bear arms. Apparently that's too much freedom for them.

Those are just the ones that I can think of off the top my head. Trust me when I say that the Liberal wing of the court is no better at protecting our rights.

Re:Cairo

[johnsonav]

The Constitutional Law is clear that wuch wiretapping is not allowed unless the police can get a warrant issued by a judge.

Its not so clear. In the early days of wiretapping, no warrant was required for anyone; as phone calls were not thought to be "persons, houses, papers, and effects". Don't get me wrong, I like that warrants are needed, but the issue has not always been so clear cut.

Re:Cairo

[astrodoom]

Repatriate just means to send back to their country of origin. It doesn't mean that they were citizens of the U.S. Geez people, patriot doesn't mean American.

Indeed, what ABOUT domestic traffic?

[daveschroeder]

The FISA Amendments Act of 2008 says:

1. A warrant is not required to collect intelligence when the target is not a US Person, regardless of where the collection occurs, including within the US.

2. A warrant is always required to collect intelligence when the target is a US Person, whether inside or outside of the US (more strict than previous law).

This requires the assistance of telecom operators in the US. In order to determine which traffic can be legally intercepted without a warrant, basic information about the traffic, such as its source and destination, must also be examined. Such examination of traffic -- a "pen register" -- also does not require a warrant.

The job of our foreign intelligence services is to collect information on the activities and plans of US adversaries. This activity has never required a warrant, because these individuals are not protected by the Constitution of the United States.

The path traffic takes shouldn't prevent us from doing this job.

Re:Cairo

[sbayless]

you are aware that U.S. citizens are being held at Guantanamo?

No, but there is a Canadian http://en.wikipedia.org/wiki/Omar_Khadr [wikipedia.org], who was 15 years old at the time of the alleged crimes.

Re:Cairo

[UnknowingFool]

No, Obama has said that one of his first acts would be to order the closure of the detention camps. [go.com] That is not the same as freeing the prisoners there. More likely the current prisoners or detainees whatever you want to call them will be relocated to other facilities. Also, the order will not likely to be enforced immediately as the relocation would take some time. A side consequence may be that some of the detainees may finally get their trials or tribunals. This may free those who have played no part in acts of terrorism.

Re:Motherfucking son of bitch.

[darkmeridian]

The exclusionary rule is an artificial judicial construct that is not a constitutional right. Stone v. Powell, 428 U.S. 465 (1976). The Fourth Amendment only guarantees freedom from illegal search and seizure. Introducing illegally-obtained evidence in a criminal case is neither. Excluding illegally-obtained evidence is meant to deter police misconduct but the public pays the cost in freed criminals. If the official misconduct was TRULY not intentional (setting aside your cynicism) then there is no deterrent purpose.

The exclusionary rule can have potentially horrible effects when applied. In Williams v. Nix, the suspect in the murder of a little girl was transported by a police officer who promised the defense attorney that there would be no questioning during the trip. (The suspect was seen carrying a rolled-up rug with little legs sticking out of one end, but when apprehended, there was no body or rug.) Instead, the officer started a soliloquy that about how he was just going to speak, and was not asking the suspect to say anything. The officer then pointed out that it was Christmas, and that the victim's family will now never be able to celebrate Christmas as it was now the anniversary of their child's death and not Christ's birth. He then elaborated that even if the suspect later told where the body was, the spring melt might wash the body away from the hiding place. The suspect then led the cop to the body, which was tossed into a culvert.

The trial court ruled that this constituted an interrogation even though there was no physical coercion. Thus, it was an illegal search in contravention of the Fourth Amendment. The Supreme Court ruled that the body and the suspect's confession had to be excluded, and remanded to the trial court. The trial court then held that the discovery of the body would have been inevitable because search parties were assigned to the area where the body was hidden, and the officials in charge of the search swore up and down on a stack of holy books and all that was dear that he had specifically instructed the search parties to look at culverts.

On the second appeal, in Nix v. Williams, the Supreme Court held that evidence derived in derogation of Fourth Amendment rights could be used where the discovery would have been inevitable despite the interrogation. It took at face value the trial court's evidentiary finding that the discovery would have been inevitable. The conviction was affirmed.

You might uphold the exclusionary rule as a valuable protection of a constitutional right, but make no mistake that it carries a very heavy price. And it has no constitutional basis, and has no democratic support. I think we watch too much Law & Order and think the rule was set in stone, but it was actually a relatively new invention, having been enunciated in Mapp v. Ohio in the fifties.

Re:Indeed, what ABOUT domestic traffic?

[daveschroeder]

Intelligence collection on non-US Persons [wikipedia.org] outside of the US has never required a warrant, throughout the entire history of the United States.

The difference occurred when traffic of non-US Persons outside of the US started traveling through the US. Suddenly a warrant is required because digital traffic passed through a routing center in Chicago when one end is in Pakistan and the other is in Saudi Arabia? That's what the now-sunset Protect America Act temporarily fixed, and the FISA Amendments Act of 2008 permanently fixes.

If you believe that a warrant should be required for intelligence collection on persons outside of the US with no legal standing of any kind with the US (i.e., citizen, vistor, legal resident, etc.), then you are completely out of step with all law, intelligence policy, and scholarship on the issue.

No one cares about the law

[daveschroeder]

No one actually cares about the truth here, any of the issues at play, nor the legality of any programs. Most make it a huge political issue, and is it any surprise that even the "leakers" have all had a political axe to grind with the Bush administration?

They just scream "unconstitutional" and rant about Bush, when the very mechanisms set up in our society to render legal opinions on actions of various components of government and to rule on issues of legality or constitutionality have judged certain things to be legal.

The issue is summed up fairly well by comments of DNI Mike McConnell [dni.gov] (video [harvard.edu]) at Harvard's Kennedy School:

And I'll fast forward to a period of Watergate, when the community was used to do a lot of intrusive observation. Out of that came a bill called FISA, Foreign Intelligence Surveillance Act. Here was the dilemma. We need this large, robust, wonderful capability to protect us in the context of the Cold War, but we can't allow it to conduct any observation of U.S. citizens. And our wonderful democracy, we want it both ways. Don't let anybody bother us, make sure we're safe, but don't do anything to look at anything that might reflect my activity.

So the law in 1978 said okay to observe foreign, but if you observe anything in the United States, U.S. person for a foreign intelligence purpose, you must have a warrant. That was the law of the land, but it was an analog law. Where we found ourselves most recently is it's one global network. And so communications overseas by foreigners - terrorists plotting to attack the United States - those communications were passing through the United States. If you go back to the old analog law, it said if you take information from a wire, even though it's a glass pipe called fiber on a wire in the United States, you must have a warrant. So the dilemma for us was we had a terrorist overseas plotting to attack us by speaking with a terrorist in another overseas location and the community was required to get a warrant.

The debate and the dilemma for us is how do you modernize that law for the modern age? And we debated. For two years we debated and we finally came to closure. The good news is when it was finally voted, two-thirds of the House and two-thirds of the Senate voted for it and here's what it says today: if it's a U.S. person anywhere in the globe, you must have a warrant. A judge must grant you to conduct surveillance and the purpose of the surveillance can only be for one thing, foreign intelligence. Now, why would you do surveillance of a U.S. person for foreign surveillance? What if it's a spy that's been recruited by a foreign agent and you need to know what they're giving away? You would then have a warrant for surveillance of that person for a foreign intelligence purpose.

The other part of the law is no warrant for a foreign target regardless of where or how you intercept it. And the third part of the law was in today's world it's digital, it's global - you can't do it without the help of the private sector and so the private sector was authorized to give us that help and provided a level of liability protection.

That's the kind of dilemma that we face in making sure we balance our responsibilities for conducting surveillance of foreign targets that might wish us harm and respecting the civil liberties and privacy of American citizens.

...and again in comments on Charlie Rose [dni.gov] (video [charlierose.com]):

CHARLIE ROSE: Okay, wire tapping is necessary and it's okay without a warrant because? In your judgment.

DIRECTOR McCONNELL: Wire tapping is essential. It is now probably more than half of

Re:What is an intelligence court?

[tinkerghost]

FISA is a dedicated branch of the Federal Court system set up for the sole purpose of handling warrants for the intelligence agencies. All of it's members are required to have a Top Secret or better security clearance and it is very much a closed door court.

Most of the paperwork that goes through FISA is classified in some way or another, so its not available for review like normal court documents. In some ways, it's a lot more like a Grand Jury where everything is sealed until after the trial. The only problem is that Intelligence agency work is almost never done, so nothing ever becomes unsealed.

As for history, FISA was created in response to Nixon & Watergate. It satisfied the needs of the intelligence community to be able to work in secret inside the US to handle cross border work, while still maintaining checks & balances on the actual activity. Currently, god only knows what kind of check it's actually performing - last report I saw was rating @ 99+% approval of warrant requests.

Re:Information Vs Matter

[Jah-Wren Ryel]

to go outside and walk down the street naked, your rights to privacy vanish!

That is a dangerously authoritarian approach to the issue. If we were expected to give up all rights to privacy simply because we were no longer on our own land, we might as well have no privacy at all because only the invalid and the insane can be expected to live their lives without a significant, if not majority, of time spent outside of their own property.

The supreme court ruled, in Katz v US, that regardless of whether you are on public or private property, what matters is that you have a reasonable expectation to privacy whatever the location may be.

Re:Cairo

[Anonymous Coward]

you are aware that U.S. citizens are being held at Guantanamo?

Citation?

Obama's continued reiterations that he intends to repatriate the detainees at guantanimo starting immediately after his inauguration?

That does nothing to confirm the original statement.

And that's not the right way to quote a discussion. The oldest text should be the deepest quoted/nested. E.g.:

you are aware that U.S. citizens are being held at Guantanamo?

Citation?

Obama's continued reiterations that he intends to repatriate the detainees at guantanimo starting immediately after his inauguration?

That does nothing to confirm the original statement.

Re:Cairo

[dwarg]

Yaser Esam Hamdi [wikipedia.org] - American Citizen, Enemy Combatant. The Supreme Court denied the executive request to hold him indefinitely without trial. He was handed over to Saudi Arabia after being stripped of citizenship.

John Walker Lindh [wikipedia.org] - American Citizen, Enemy Combatant. Entered a guilty plea on 2 of his 10 charges; carrying weapons and serving in the Taliban army. Currently serving 20 years in an American prison.

The most disturbing case, however, is that of Jose Padilla [wikipedia.org], who was never held in Guantanamo, to our knowledge, but is an American citizen arrested in the United States and declared an enemy combatant. He very likely was an "evil doer(TM)" but the way his case was handled was disturbing to say the least.

When your government has the right to listen in on your communications, interpret them as they see fit, and make you disappear without justifying the cause to anyone but themselves you've set up a powerful system for abuse. If not by those that set it up, by someone that takes the reigns of power down the road.

Re:Cairo

[Shakrai]

Imagine a terror loony who has powdered a couple of ounces of plutonium and wrapped them around a single stick of dynamite and then lighting the fuse and tossing it off of a tall building. Imagine a contaminated, major city that must remain uninhabited for the next 100,000 years.

Umm, Fat Man [mphpa.org] had 13.6 pounds of plutonium in it and Nagasaki isn't uninhabitable for the next 100,000 years. I realize you were trying to make a point about the threat of dirty bombs but we don't do ourselves any favors when we exaggerate threats or blow them out of proportion. It would take a lot more than a "couple of ounces" of plutonium to render a city uninhabitable for any length of time, let alone 100,000 years.

We are forced to ferret them out and shut them down well before they reach out and kill large numbers of people.

I agree, although it kind of reminds me of Whac-A-Mole [wikipedia.org]. In the short term we need to track these dirtbags down and kill them but in the long term we need to be doing things to solve some of the underlying problems in the Middle East that render the populations so hopeless that suicide bombing becomes attractive to the population therein.

Re:Cairo

[kkissane]

To be entitled to prisoner-of-war status, captured service members must be lawful combatants entitled to combatant's privilegeâ"which gives them immunity from punishment for crimes constituting lawful acts of war, e.g., killing enemy troops. To qualify under the Third Geneva Convention as a POW, a combatant must have conducted military operations according to the laws and customs of war, be part of a chain of command, wear a "fixed distinctive marking, visible from a distance" and bear arms openly.

Re:Cairo

[Radhruin]

Specifically, the Germans launched Operation Greif [wikipedia.org], which involved using captured allied vehicles and uniforms behind allied lines. Under the Hague Conventions [wikipedia.org], executions were allowed, and indeed, 16 people were executed after military trials.

Re:Since When Was It Legal

[Anonymous Coward]

The second amendment was not passed to protect the rights of hunters. It was passed so that common citizens could, in the inevitable instance that their government becomes tyrannical, can be overthrown.

Not really. I don't think anyone outside of right-wing nutters believes that.

To quote Scalia's explanation in the recent D.C. vs. Heller.

The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved.

The 2nd amendment was passed to protect a state's right to run a militia. The constitution stated that the Fed Gov could "arm militias" and there was a question if they had the inverse power to "disarm militias," the 2nd amendment was proposed and passed to secure that the federal government could not disarm state militias.

Re:Cairo

[Libertarian001]

You see it that way because you've never bothered to read the Geneva Convention. They're not in uniform and they don't fight for a recognized, let alone legitimate, government. My stance is backed up by SCOTUS decisions. Yours is backed up by red herrings and ad hominem attacks.

Re:Cairo

[jd]

In the news today, the Pentagon was ordered to free a man they'd accused of being on one of these suppsed foreign battlefields after failing to provide evidence he was even in the country they supposedly arrested him in. Many of those arrested and imprisoned were captured by bounty-hunters who provided such damning evidence as the culprit wearing a Casio watch. Frankly, if you can't provide any evidence that these people WERE on any battlefield anywhere on the planet, legally or otherwise, then you have little justification for calling them "prisoners of war". And if they ARE prisoners of war, then you are legally required to provide them with all the international safeguards and legal rights that are guaranteed to such prisoners. Providing them with neither the rights of POWs -or- the rights of any other recognized classification of prisoner is simply not acceptable.

The Constitution is the only text guaranteed to apply, as it is the legal document governing the Government. The Constitution is not a document describing the rights of the individual, it is a document detailing the limits of Government. Those limits are carefully specified. Sure, there are recognized parameters, such as commercial speech not being protected under the First Ammendment. Some of these parameters may not be strictly legal, but so far very few have ever been overturned. The right of the President to curtail any clause in the Constitution at whim, simply by claiming war powers, is highly dubious and has usually failed in the Supreme Court when tested. Thus, we can reasonably argue that the suspension of Haebus Corpus is illegal, that the Fifth's guarantees against self-incrimination preclude the use of torture, and that the First prohibits the arrest of an individual on suspicion of being unChristian.

Do any of these affect the ability of an army to protect itself? No. Haebus Corpus means you can challenge your arrest. It doesn't prohibit your arrest in the first place. I would consider being on an active battlefield as an active participant very reasonable grounds for search and seizure. Miranda Rights are unnecessary in the case of a POW, as International Law provides that a person is not required to give anything more than sufficient information for the Red Cross to be able to verify their identity (in pop culture, this is usually given as "name, rank and serial number"). In other words, they already know their rights. Now, if you violate those rights, that's another story. That's a no-no. It's also a war crime. That's one reason the US has been hell-bent on not having those people declared POW. It would involve a sizable chunk of US intelligence and the US military having to explain themselves before the courts. This is also why America didn't want to sign up for the ICJ. It has nothing to do with protecting Americans from false claims, and everything to do with protecting high-ranking officials who happen to also be criminals.

Finally, there are those the courts -and the Pentagon- have ruled already have never been involved in subversive activity, terrorism, or other criminal activity. These people are still not permitted into the US, even though the reasons given for their prohibition are rejected by the very same people who are prohibiting them. That makes sense only as a very sick and twisted act of realpolitik, an effort to avoid looking bad to either side of the fence even when those opposing sides are mutually exclusive.

Re:Cairo

[iceperson]

"State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities."

The UN's policy on "child soldiers" has to do with recruiting and doesn't apply here. Even if it did, based on the UN's definition 15 year olds can fight if they choose to.

Re:Cairo

[internic]

"The most disturbing case, however, is that of Jose Padilla [wikipedia.org], who was never held in Guantanamo, to our knowledge, but is an American citizen arrested in the United States and declared an enemy combatant."

You left out the part where he eventually got his day in court and was convicted by a jury.

He was held incommunicado without charges for more than three years and put into the civilian justice system at the 11th hour to try to prevent the Supreme Court from ruling on the legality of his detention. He was subsequently convicted, but not of anything directly related to the original claims by the government (that he was involved in a plot to make a dirty bomb). So there doesn't seem to be much reason to think that he ever would have seen his day in court were it not for the legal challenges to his detention.

Re:Cairo

[ncc74656]

Omar Khadr is legally a child soldier

What nation's uniform was he wearing when he was captured?

Yeah...didn't think so. He's not a soldier of any sort; referring to him as such is an insult to those who are. He's an unlawful combatant. He should consider himself lucky he didn't get a bullet to the head when he was captured.

Re:Cairo

[Anonymous Coward]

That could never happen. [wikipedia.org]

Re:Cairo

[MadMidnightBomber]

'Crawford, a Pentagon official who last year was put in charge of military commissions that decide whether detainees should be tried, told the Washington Post: "We tortured Qahtani. His treatment met the legal definition of torture.'
-- http://www.guardian.co.uk/world/2009/jan/15/guantanamo-bush-administration-torture-qahtani [guardian.co.uk]

Fuck you very much. If they have no rights, they will be tortured, and you've given your implicit consent.

What a surprise, Just in time!

[elkto]

Of course its Ok now; Now that the current regime takes power.

Trust us, we are Liberal!

United Socialist of America; NBC, ABC, CBS, CNN presiding.