Sunday, January 28, 2007

Warrantless Wiretapping

Required for Con Law Students (Read WP Article Linked Below)
The litigation over President Bush's warrantless surveillance program is a compelling case through which to examine many of our Constitutional Law issues. While the question of whether a warrant is constitutionally required is better left for Professor LaNoue's First Amendment Freedoms class, several issues remain:

1. Does the President have the power to order the Executive Branch to monitor telephone and electronic communication?

2. Do the courts have the authority to question the President's actions?

The ACLU convinced a federal court that the program was unconstitutional. (See the court's decision PDF). Then last month the Administration agreed to let judges on a secret court (FISA) review the surveillance orders. Now Administration lawyers are arguing that the ACLU case is moot (WP Article).

5 comments:

Propagandhi said...

That stance is untenable. Congress passed the Foreign Intelligence Surveillance Act to prevent unlawful eavesdropping by government. The 4th amendment protects our right to electronic searches and eavesdropping. Eavesdropping on Amerian citizens without a warrant or just cause is unconstituional.

What I don't understand is why they didnt' just go through FISA to begin with. It allows the President to authorize electronic surveillance without a court order for up to a year if it is for foreign intelligence gathering doesn't involve monitoring a U.S. citizen. If the U.S. believe's that a U.S. citizen is acting on behalf of a foreign power I believe that the U.S. can eavesdrop for up to 90 days before a warrant is issued at which point if they can prove to FISA that the surveillance is warranted then approval to continue is granted. It seems there was no reason for Bush to try to circumvent FISA or claimed that it curbed his executive power.

As for the claim that they are now following FISA's rules and so the case should be dropped...

1. The adminstration could return to warrantless wiretapping since no ruling has been made.

2. It is unclear to me whether they will obtain warrants for all cases in the system or just the ones going forward.

3. Dropping the case might prevent fair grievances from being voiced and tried in court for those that have been under surveillance.

Propagandhi said...

That stance is untenable. Congress passed the Foreign Intelligence Surveillance Act to prevent unlawful eavesdropping by government. The 4th amendment protects our right to electronic searches and eavesdropping. Eavesdropping on Amerian citizens without a warrant or just cause is unconstituional.

What I don't understand is why they didnt' just go through FISA to begin with. It allows the President to authorize electronic surveillance without a court order for up to a year if it is for foreign intelligence gathering doesn't involve monitoring a U.S. citizen. If the U.S. believe's that a U.S. citizen is acting on behalf of a foreign power I believe that the U.S. can eavesdrop for up to 90 days before a warrant is issued at which point if they can prove to FISA that the surveillance is warranted then approval to continue is granted. It seems there was no reason for Bush to try to circumvent FISA or claimed that it curbed his executive power.

As for the claim that they are now following FISA's rules and so the case should be dropped...

1. The adminstration could return to warrantless wiretapping since no ruling has been made.

2. It is unclear to me whether they will obtain warrants for all cases in the system or just the ones going forward.

3. Dropping the case might prevent fair grievances from being voiced and tried in court for those that have been under surveillance.

Propagandhi said...

James Bamford, NSA expert, stated this morning in the New York Times that regardless of what happens with FISA issues going forward, George Bush violated the criminal law for the last five years by eavesdropping on Americans without warrants, and a federal court has already ruled that this is the case. Violations of FISA are felonies punishable by up to 5 years in prison and a $10,000 fine per offense.

http://www.nytimes.com/2007/01/31/opinion/31bamford.html?_r=1&oref=slogin

egwinn1 said...

From my understanding of the courts, it would seem that they should have the authority to check the president's power. Also in my personal opinion, I find it absurd that certain members of our government find it contitutional and proper to wiretap without a justified warrant.

Professor Davis said...

Excellent comments. Consider the Administration's motion to dismiss the case in light of our standing discussion next week - Flast v. Cohen.

Have you voiced your opinions to your senators and reps? You should.