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Location: Cape Town, South Africa
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From Leon H.....
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I've had a little time throughout the day to sit down with my good friend WestLaw and do some research on the issue today, and corresponded with a number of folks far more knowledgeable with this area of the law than I am, and have gotten some firmer answers to a number of questions that seem to keep cropping up in the course of this particular discussion.
Question number one that I have gotten most frequently during the course of the day has been, "If the FISA authorizes this kind of activity, why isn't the President or the AG referring to the FISA in their defense?"
The answer to that question is that the FISA is generally not seen as an authorizing statute, but rather as a limiting statute. In other words, prior to FISA, it was generally held (by circuit courts that had addressed the issue) that so long as a wiretap was sought for the gathering of foreign intelligence, a fourth-amendment warrant was not necessary. The President does have "inherent power" under Article II to do this sort of thing, absent a Congressional provision to the contrary.
During the Nixon era, paranoia over this issue reached a level where the people demanded that Congress do something, and thus the FISA was passed, which was intended to limit the circumstances in which the Executive branch could execute a warrantless wiretap. Thus, the key question for someone in the Justice Department would not be whether the FISA granted such a power, but rather whether FISA prohibited it. Thus, you had AGAG saying the following:
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Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.
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See there? He's concerned about what FISA prohibits him from doing, not what it allows him to do. And, as you will notice in the opening remarks of 50 U.S.C. 1802, the Statute contains an "unless otherwise provided by statute" provision, which AGAG made reference to next:
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Our position is, is that the authorization to use force, which was passed by the Congress in the days following September 11th, constitutes that other authorization, that other statute by Congress, to engage in this kind of signals intelligence.
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Now, it is important to realize, as Carl Levin (D-MI) is apparently incapable of doing, that this was not the authorization to use force in Iraq. This was the authorization to use force to pursue Al Qaeda, passed in the wake of 9/11. That resolution of force authorized the President, in part, to:
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use all necessary force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.
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In other words, the President was authorized to use all necessary force against Al Qaeda in the wake of 9/11, it would seem rather strange that the use of wiretaps against known Al Qaeda agents would not fall under "all necessary force." As AGAG pointed out in the presser, the SCOTUS has already construed that authorization of force very broadly, to the point that they read it to imply powers not explicitly contained in the authorization even when such a construction directly violated another Federal Statute, 18 U.S.C. 4001(a). (See Hamdi v. Rumsfeld, 542 U.S. 507). If the SCOTUS authorized the detention of a United States Citizen in direct contravention to the provisions of 18 U.S.C. 4001, they would certainly authorize the use of wiretaps in the gathering of foreign intelligence, when such authorization might questionably violate 50 U.S.C. 1802.
The court's opinion in Hamdi declared that even though the authorization of force did not explicitly authorize detention, detention was a fundamental incident of waging war. Certainly, AGAG has a colorable argument when he says that the gathering of intelligence is a fundamental incident of waging war. However, I must concede that an argument can at least be made in the other direction, which reinforces what I said in my first post on the matter - that this is a very sticky and delicate issue, and that a clear decision on point is simply not to be found. I believe that the administrations construction of the authorization to use force was at the very least justifiable and in accordance with the available precedent at the time. Not only this, but given that FISA was intended to be a Congressional check on executive power, they took the additional step of ongoing consultation with Congress over the issue. I think most courts would take the position that Congress is in the best position to interpret their own statute - that they may have been incorrect is always a possibility - that is why we have a SCOTUS to decide these sorts of things.
Several folks have also asked why the President would take such measures, when a procedure of review by a FISA judge was so easily available. The answer seems clear enough to me - if a terrorist can trigger an operation with a 30 second phone call, that will cause damage later that day, it would be ineffective policy indeed that would force the President to wait 72 hours to get a FISA judge to approve the tap - which they wouldn't be able to authorize since they'd never have the information in the first place.
A couple of other brief remarks are in order. References to the case of United States v. United States District Court for the Eastern District of Michigan are making their way around the internet. Supposedly, this case establishes that the President has the constitutional power, carte blanche to conduct warrantless searches when national security is at stake - and that therefore, since the President has such authority Constitutionally, the FISA cannot take it away from him.
The only problem with this analysis is that the SCOTUS actually rejected it in the very case that Hugh Hewitt (and numerous others) have cited. I know it's boring to read the procedural posture, but here it really is a killer - the Government made the argument that the President had such power, but the District court rejected that argument, and the Circuit Court affirmed the District Court, and the SCOTUS affirmed the Circuit Court. Thus, even though the argument is contained in the opinion, it loses.
The bottom line is that, sooner or later, this practice is surely going to find its way back up to the SCOTUS. I simply can't find a way to harmonize overturning this practice as unconstitutional with the court's decision in Hamdi, or distinguish it on the facts. However, there will be two new justices on the Court by then, and I could well be wrong. Then again, so could the countless hysterics on the left, and their sycophants in the press-Democrat. There is much to be sorted out, here, and those afflicted with Bush Derangement Syndrome would do well to consider whether they really want to have this practice end.
Do they really desire to end a program which intercepts the phone calls of known Al Qaeda affiliates (not random and indiscriminate Americans), and possibly prevents terrorist attacks? Are they willing to provide notice to the terrorists of the tactics we are using to track them in a callow effort to score political points? It seems as though they are.
Let's have them make that case to the American people for what it is, then. And let's also have them explain how it is that they were apparently fine with Clinton using Echelon to eavesdrop on Americans, and on foreign companies for economic benefit, so that we can see once and for all what is more important to them - the protection of "big business," or the protection of the citizens of this country from terrorist attacks? The American people deserve to know.
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