FISA court review 2002...

[Mojo_PeiPei]

From a 2002 FISA court review, an "upholding" (sarcasm) of the Bush administrations "criminal" and "illegal" actions.

Opinion for the Court filed Per Curiam.

Per Curiam: This is the first appeal from the Foreign Intelligence Surveillance Court to the Court of Review since the passage of the Foreign Intelligence Surveillance Act (FISA), 50 U.S.C. §§ 1801-1862 (West 1991 and Supp. 2002), in 1978. This appeal is brought by the United States from a FISA court surveillance order which imposed certain restrictions on the government. Since the government is the only party to FISA proceedings, we have accepted briefs filed by the American Civil Liberties Union (ACLU)1 and the National Association of Criminal Defense Lawyers (NACDL) as amici curiae.

Not surprisingly this case raises important questions of statutory interpretation, and constitutionality. After a careful review of the briefs filed by the government and amici, we conclude that FISA, as amended by the Patriot Act,2 supports the government’s position, and that the restrictions imposed by the FISA court are not required by FISA or the Constitution. We therefore remand for further proceedings in accordance with this opinion.

In regards to an earlier court ruling which would seem to be the reason for this review...

The FISA court’s decision and order not only misinterpreted and misapplied minimization procedures it was entitled to impose, but as the government argues persuasively, the FISA court may well have exceeded the constitutional bounds that restrict an Article III court. The FISA court asserted authority to govern the internal organization and investigative procedures of the Department of Justice which are the province of the Executive Branch (Article II) and the Congress (Article I). Subject to statutes dealing with the organization of the Justice Department, however, the Attorney General has the responsibility to determine how to deploy personnel resources. As the Supreme Court said in Morrison v. Olson in cautioning the Special Division of the D.C. Circuit to avoid unauthorized administrative guidance of Independent Counsel, “[t]he gradual expansion of the authority of the Special Division might in another context be a bureaucratic success story, but it would be one that would have serious constitutional ramifications.” 487 U.S. 654, 684 (1988).18

Neither amicus brief defends the reasoning of the FISA court. NACDL’s brief makes no attempt to interpret FISA or the Patriot Act amendments but rather argues the primary purpose test is constitutionally compelled. The ACLU relies on Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522, to interpret FISA, passed 10 years later. That technique, to put it gently, is hardly an orthodox method of statutory interpretation. FISA was passed to deal specifically with the subject of foreign intelligence surveillance. The ACLU does argue that Congress’ intent to preclude law enforcement officials initiating or controlling foreign intelligence investigations is revealed by FISA’s exclusion of the Attorney General–a law enforcement official–from the officers who can certify the foreign intelligence purpose of an application under section 1804. The difficulty with that argument is that the Attorney General supervises the Director of the FBI who is both a law enforcement and counterintelligence officer. The Attorney General or the Deputy Attorney General, moreover, must approve all applications no matter who certifies that the information sought is foreign intelligence information. 50 U.S.C. § 1804(a).20

The ACLU insists that the significant purpose amendment only “clarified” the law permitting FISA surveillance orders “even if foreign intelligence is not its exclusive purpose” (emphasis added). In support of this rather strained interpretation, which ignores the legislative history of the Patriot Act, the ACLU relies on a September 10, 2002 hearing of the Judiciary Committee (the day after the government’s oral presentation to this court) at which certain senators made statements–somewhat at odds with their floor statements prior to the passage of the Patriot Act–as to what they had intended the year before. The D.C. Circuit has described such post-enactment legislative statements as “legislative future” rather than legislative history, not entitled to authoritative weight.

Although the FISA court did not explicitly rely on the Fourth Amendment, it at least suggested that this provision was the animating principle driving its statutory analysis. The FISA court indicated that its disapproval of the Attorney General’s 2002 Procedures was based on the need to safeguard the “privacy of Americans in these highly intrusive surveillances and searches,” which implies the invocation of the Fourth Amendment. The government, recognizing the Fourth Amendment’s shadow effect on the FISA court’s opinion, has affirmatively argued that FISA is constitutional.

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.

Accordingly, we reverse the FISA court’s orders in this case to the extent they imposed conditions on the grant of the government’s applications, vacate the FISA court’s Rule 11, and remand with instructions to grant the applications as submitted and proceed henceforth in accordance with this opinion.

http://www.fas.org/irp/agency/doj/fisa/fiscr111802.html

FISA Court Approved Bush Spy Program
Contrary to claims by Democrats currently hyperventilating on Capitol Hill over President Bush's decision to use the National Security Agency to monitor communications among terrorists, Bush's so-called "illegal" spy program has indeed undergone judicial review.

And a special foreign intelligence surveillance appeals court set up to review the case confirmed that such "warrantless searches" were completely legal.

Notes OpinionJournal.com today:

"The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978."

But the Journal notes that in a 2002 case dubbed: "In Re: Sealed Case," the FISA appeals court decision cited a previous FISA case [U.S. v. Truong], where a federal court "held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information."
The court's decision went on to say: "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."

What's more, notes the Journal: "The two district court judges who have presided over the FISA court since 9/11 also knew about" the Bush surveillance program.

Thank You for Wiretapping
Why the Founders made presidents dominant on national security.

Tuesday, December 20, 2005 12:01 a.m. EST

Wisconsin Democrat Russ Feingold wants to be President, and that's fair enough. By all means go for it in 2008. The same applies to Lindsey Graham, the South Carolina Republican who's always on the Sunday shows fretting about the latest criticism of the Bush Administration's prosecution of the war on terror. But until you run nationwide and win, Senators, please stop stripping the Presidency of its Constitutional authority to defend America.

That is the real issue raised by the Beltway furor over last week's leak of National Security Agency wiretaps on international phone calls involving al Qaeda suspects. The usual assortment of Senators and media potentates is howling that the wiretaps are "illegal," done "in total secret," and threaten to bring us a long, dark night of fascism. "I believe it does violate the law," averred Mr. Feingold on CNN Sunday.

The truth is closer to the opposite. What we really have here is a perfect illustration of why America's Founders gave the executive branch the largest measure of Constitutional authority on national security. They recognized that a committee of 535 talking heads couldn't be trusted with such grave responsibility. There is no evidence that these wiretaps violate the law. But there is lots of evidence that the Senators are "illegally" usurping Presidential power--and endangering the country in the process.

The allegation of Presidential law-breaking rests solely on the fact that Mr. Bush authorized wiretaps without first getting the approval of the court established under the Foreign Intelligence Surveillance Act of 1978. But no Administration then or since has ever conceded that that Act trumped a President's power to make exceptions to FISA if national security required it. FISA established a process by which certain wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps could ever be allowed.
The courts have been explicit on this point, most recently in In Re: Sealed Case, the 2002 opinion by the special panel of appellate judges established to hear FISA appeals. In its per curiam opinion, the court noted that in a previous FISA case (U.S. v. Truong), a federal "court, as did all the other courts to have decided the issue [our emphasis], held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information." And further that "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."

On Sunday Mr. Graham opined that "I don't know of any legal basis to go around" FISA--which suggests that next time he should do his homework before he implies on national TV that a President is acting like a dictator. (Mr. Graham made his admission of ignorance on CBS's "Face the Nation," where he was representing the Republican point of view. Democrat Joe Biden was certain that laws had been broken, while the two journalists asking questions clearly had no idea what they were talking about. So much for enlightening television.)

The mere Constitution aside, the evidence is also abundant that the Administration was scrupulous in limiting the FISA exceptions. They applied only to calls involving al Qaeda suspects or those with terrorist ties. Far from being "secret," key Members of Congress were informed about them at least 12 times, President Bush said yesterday. The two district court judges who have presided over the FISA court since 9/11 also knew about them.

Inside the executive branch, the process allowing the wiretaps was routinely reviewed by Justice Department lawyers, by the Attorney General personally, and with the President himself reauthorizing the process every 45 days. In short, the implication that this is some LBJ-J. Edgar Hoover operation designed to skirt the law to spy on domestic political enemies is nothing less than a political smear.

All the more so because there are sound and essential security reasons for allowing such wiretaps. The FISA process was designed for wiretaps on suspected foreign agents operating in this country during the Cold War. In that context, we had the luxury of time to go to the FISA court for a warrant to spy on, say, the economic counselor at the Soviet embassy.

In the war on terror, the communications between terrorists in Frankfurt and agents in Florida are harder to track, and when we gather a lead the response often has to be immediate. As we learned on 9/11, acting with dispatch can be a matter of life and death. The information gathered in these wiretaps is not for criminal prosecution but solely to detect and deter future attacks. This is precisely the kind of contingency for which Presidential power and responsibility is designed.

What the critics in Congress seem to be proposing--to the extent they've even thought much about it--is the establishment of a new intelligence "wall" that would allow the NSA only to tap phones overseas while the FBI would tap them here. Terrorists aren't about to honor such a distinction. As Secretary of State Condoleezza Rice said Sunday on NBC's "Meet the Press," before 9/11 "our intelligence agencies looked out; our law enforcement agencies looked in. And people could--terrorists could--exploit the seam between them." The wiretaps are designed to close the seam.

As for power without responsibility, nobody beats Congress. Mr. Bush has publicly acknowledged and defended his decisions. But the Members of Congress who were informed about this all along are now either silent or claim they didn't get the full story. This is why these columns have long opposed requiring the disclosure of classified operations to the Congressional Intelligence Committees. Congress wants to be aware of everything the executive branch does, but without being accountable for anything at all. If Democrats want to continue this game of intelligence and wiretap "gotcha," the White House should release the names of every Congressman who received such a briefing.
Which brings us to this national security leak, which Mr. Bush yesterday called "a shameful act." We won't second-guess the New York Times decision to publish. But everyone should note the irony that both the Times and Washington Post claimed to be outraged by, and demanded a special counsel to investigate, the leak of Valerie Plame's identity, which did zero national security damage.

By contrast, the Times' NSA leak last week, and an earlier leak in the Washington Post on "secret" prisons for al Qaeda detainees in Europe, are likely to do genuine harm by alerting terrorists to our defenses. If more reporters from these newspapers now face the choice of revealing their sources or ending up in jail, those two papers will share the Plame blame.

The NSA wiretap uproar is one of those episodes, alas far too common, that make us wonder if Washington is still a serious place. Too many in the media and on Capitol Hill have forgotten that terrorism in the age of WMD poses an existential threat to our free society. We're glad Mr. Bush and his team are forcefully defending their entirely legal and necessary authority to wiretap enemies seeking to kill innocent Americans.

http://www.opinionjournal.com/editor...l?id=110007703

Here is yet another example, of the constant false politicking going on here. Bush as the executive is operating within his delegated powers. If my reading of the initial court review case I quoted is correct, it was actually the FISA that was intruding and usurping check and balance power as it violated it's jurisdiction.

In borrowing lines thrown out here constantly at us "lumpenconservatives" this is me putting up, not shutting up. I've provided examples from the FISA court and others attesting to the legality of the wiretaps. I wonder if this we go unnoticed or ignored, just like all the evidence that has blasted the false accusations that the Gitmo detentions are illegal.

This post took me over an hour to track down the information. It caused me much strain of my legal knowledge as the court document is extremely tough to decipher, so in closing please do me a favor and at least come up with something substantial when responding if you feel so inclined, if I have to tread through more legal jargon I will be compelled to murder suicide. Also on that note, politicophile, you seem to have a very sound understanding on constitutional law, did I read and properly quote the case, cause man my face would be red if I was wrong. THat offer/challenge is extended to anyone else who would wish it upon themselves

[Mojo_PeiPei]

Mods feel free to close this. I must've made this thread in some ultra combative manner which was not inviting to dialogue or discussion; I dunno 15+ views and not one response, interesting. Who knows maybe closing it shouldn't even really be an option seems like this thread will die on it's own.

Maybe a rephrasing and emphasis on discussion should be in order. Again I don't know, with all the charges levied here about certain actions under taken by the administration here, people here seem pretty set in their beliefs, thought one of them would've stepped up to the plate on this one. I would've thought this post would've brought out some discussion, my apologies.

[Willravel]

Calm down, I'm still reading the first link. Also, could you perovide a link for the article: "FISA Court Approved Bush Spy Program"? Thanks.

[Mojo_PeiPei]

http://www.newsmax.com/archives/ic/2...0/131610.shtml

I'm fairly certain the first article quotes the second one, the court case I quoted really took a lot out of me, hence the double quotation.

[Willravel]

In March 2002, the Attorney General (John Ashcroft) submitted a memorandum to the FISC, requesting approval of newly created information sharing (minimization procedures) and other proposals, to be implemented upon approval at the Department of Justice. The Attorney General's proposed minimization procedures significantly curtailed the information screening walls. In a May 17 opinion (liked above), the FISC granted some of the Administration's newly requested powers, but refused to grant the Justice Department heightened information sharing powers proposed by the Attorney General.

According to the court, "in approving minimization procedures the Court is to ensure that the intrusiveness of foreign intelligence surveillances and searches on the privacy of U.S. persons is 'consistent' with the need of the United States to collect foreign intelligence information from foreign powers and their agents." The opinion states that the Justice Department and FBI supplied erroneous information to the FISC in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI director Louis Freeh. Authorities also improperly shared intelligence information with investigators and prosecutors handling criminal cases on at least four occasions. These abuses were discovered by the Justice Department and reported to the FISC in 2000. In one case, the FISC was so angered by inaccuracies in affidavits submitted to the court that the judges barred the agent responsible from ever appearing again before the FISC. In rejecting the new minimization procedures, the FISC stated that "[i]n virtually every instance, the government's misstatements and omissions in FISA applications and violations of the Court's orders involved information sharing and unauthorized disseminations to criminal investigators and prosecutors."

Because of the Administration's history of misuse of FISA authority, the FISC decided that the new procedures proposed by Ashcroft in March would give prosecutors too much control over intelligence investigations, and would allow the government to "end-run" the more stringent Title III wiretap requirements by obtaining information for criminal investigations under the lower FISA standards. "The 2002 procedures appear to be designed to amend the law and substitute the FISA for Title III electronic surveillance and Rule 41 searches." The opinion further illustrates the FISC's perturbation with the lack of response from the Justice Department, which has yet to explain how the misrepresentations and abuses occurred. The Department is still conducting an internal investigation.

Under the operative standards, the Justice Department must seek explicit FISC approval before sharing information obtained in a FISA investigation with a criminal investigator or prosecutor. The March memorandum proposed that criminal prosecutors be given routine access to such information, and that they be allowed to direct intelligence investigations when appropriate.

Ashcroft filed a formal appeal to the FISC's opinion on August 22, which constitutes the first formal challenge to the FISC in its 23-year history. Until this incident, the FISC has approved all but one FISA application sought by the government since the court's inception. The Court of Review heard the Justice Department's oral argument on September 9.
(info from http://www.epic.org/privacy/terrorism/fisa/)

Frankly it's all moot. Bush was doing this before 9/11, so the 2002 precedent is irrelevent, in addition to being suspect.
George Bush decided to skip seeking warrants for international wiretaps because the court was challenging him at an unprecedented rate.
This is my favorite, though:

CNN: Numerous Convicted Terrorists Plan to Challenge Wiretaps Obtained Without A Court Order. CNN's Homeland Security Correspondent Jeanne Meserve reported that, "Truck driver Iyman Faris is serving 20 years in a maximum security prison after pleading guilty to plotting to bring down the Brooklyn Bridge as an al Qaeda agent. His attorney says he also will be asking a federal court to force the Justice Department to tell him how the NSA program was used in his case. Government officials familiar with the program have confirmed that NSA eavesdropping helped authorities move against Faris. A civil suit against President Bush for illegal wiretapping could be in the works. ... The first of the challenges could come within the next few weeks when a lawyer for one man charged along with Jose Padilla is expected to file a motion in Florida. Padilla, of course, the enemy combatant charged with terrorism last month. But that is likely to be just the beginning..." [CNN, Lou Dobbs Tonight, 12/28/05]

[Mojo_PeiPei]

From all accounts I've read, legally speaking, the President is allowed to circumvent warrants entirely if it is on the basis of foreign intelligence, up to an entire year. Building off that, and something was brought up in the court ruling I provided, to reiterate this shit is mindnumbing and I could be misreading it, but the courts held that the president is allowed said powers, and that the acquistion of "foreign intelligence" doesn't have to be the primary goal of a warrantless search.

I don't get how the pre-2002 actions of the administration would make the 2002 ruling moot. As a matter of constitutional law, the courts are the branch that interpret the legality of law, if they found no problem with actions taken prior to 2002, where is the issue? Nevermind the volume of issues brought up prior to the ruling, if the court rules in 2002 that actions and provisions allowed by congressional law that are executed by the president are legal, then it's legal, there is no question. One may harbor some personal offense or disdain for actions, but that doesn't make them illegal in any sense, suspect maybe, but illegal no.

Thanks for taking the time to respond Will, really appreciate, hope I properly posted against yours, that's to say in context.

[Willravel]

They (courts) may not know about the actions pre-2002 - or post 2002, and there in lies the problem. Let me explain the roots of the FISA court really quick, and please keep in mind the current situation as it pertains directly to the formation of FISA. The Foreign Intelligence Surveillance Act resulted from extensive investigations into domestic intelligence activities by Senate Committees, led separately by Sam Ervin and Frank Church in the 1970s (see the Church Committee report). By the early years of the 1970s, the unpopularity of the Vietnam war and the unfolding Watergate scandal brought the era of minimal oversight to a screeching halt. The Congress was determined to rein in the Nixon administration and to ascertain the extent to which the nation's intelligence agencies had been involved in questionable, if not outright illegal, activities . A series of troubling revelations started to appear in the press concerning intelligence activities . First came the revelations of Christopher Pyle in January 1970 of the U.S. Army's spying on the civilian population [1] and Sam Ervin's Senate investigations that resulted. The dam broke on 22 December 1974, when The New York Times published a lengthy article by Seymour Hersh detailing operations engaged in by the CIA over the years that had been dubbed the "family jewels." Covert action programs involving assassination attempts against foreign leaders and covert attempts to subvert foreign governments were reported for the first time. In addition, the article discussed efforts by intelligence agencies to collect information on the political activities of US citizens. These revelations convinced many Senators and Representatives that the Congress itself had been too lax, trusting, and naive in carrying out its oversight responsibilities.

So, to summerize, there was a failing war that was launched for clearly political reasons, along with the president being involved in highly suspect behavoir, and newspapers published stories about domestic spying. It was proven by the Church Committee that the executive powers were clearly not responsible enought to operate domestic spying, assasination, etc. without judicial approval (checks and balances). Here we are again, 30 years later, having the same problem.

Honestly, I'm exhausted. I'm still worried my response only makes sense to me. Tomorrow I'll give it another shot. Thanks to wikipedia for the above info on FISA and the Church Committee.