Unlimited warrantless surveillance.
By Kate Martin
Center for National Security Studies
12/20/05 "CNSS" -- -- The President claims he has authority as the
Commander-in-Chief to conduct warrantless wiretaps of Americans. But when
Congress enacted the Foreign Intelligence Surveillance Act in 1978, it
expressly rejected the President's claim of inherent authority to conduct
warrantless wiretaps. It then went further and made it a crime to conduct
such wiretaps.
The President has acted contrary to the express will of the Congress. The
Supreme Court has never approved a claim of presidential authority to
authorize acts outlawed by the Congress.
When Congress authorized secret wiretaps for national security purposes in
1978, it intended to prevent any future President from carrying out
warrantless eavesdropping on Americans It made its intention clear in five
different sections of the law!
1) When Congress enacted FISA in 1978, it explicitly refused to provide an
exception to enable the President to eavesdrop on Americans without getting
a judicial warrant. It repealed the provision which the government had
relied upon in claiming inherent presidential authority for warrantless
wiretaps:
Nothing contained in this chapter or in section 605 of the Communications
Act of 1934 shall limit the constitutional power of the President to take
such measures as he deems necessary to protect the Nation against actual or
potential attack or other hostile acts of a foreign power, to obtain foreign
intelligence information deemed essential to the security of the United
States, or to protect national security information against foreign
intelligence activities. Nor shall anything contained in this chapter be
deemed to limit the constitutional power of the President to take such
measures as he deems necessary to protect the United States against the
overthrow of the Government by force or other unlawful means, or against any
other clear and present danger to the structure or existence of the
Government. The contents of any wire or oral communication intercepted by
authority of the President in the exercise of the foregoing powers may be
received in evidence in any trial hearing, or other proceeding only where
such interception was reasonable, and shall not be otherwise used or
disclosed except as is necessary to implement that power." Pub. L. No.
90-351, 82 Stat. 212 (codified as amended at 18 U.S.C. §§ 2510-2520 (1968)).
The government had argued in the Keith case that this provision supported
the President's constitutional authority to conduct warrantless wiretaps;
the Court found it neutral on the President's authority, not congressional
authorization for warrantless surveillance. United States v. United States
District Court [Keith], 407 U.S. 297, 303 (1972).
2) Congress also refused to enact the language proposed by the Ford
administration that: "[n]othing contained in this chapter shall limit the
constitutional power of the President to order electronic surveillance for
the reasons stated in section 2511(3) of title 18, United States Code, if
the facts and circumstances giving rise to such order are beyond the scope
of this chapter." S. 3197, 94th Cong. 2d Sess, § 2528 (Mar. 23, 1976),
reprinted in Hearings on S. 743, S. 1888, S. 3197 Before the Subcomm. On
Criminal Laws and Procedures of the Senate Judiciary Comm., 94th Cong., 2d
Sess. 134 (1976) (stating in the first page of the report that S. 3197 was
identical to the measure transmitted to the Senate by the President on March
23, 1976).
3) Instead, in FISA Congress enacted a comprehensive scheme governing all
foreign intelligence wiretaps, including provisions for emergency wiretaps
in advance of warrants and wiretaps of foreign embassies inside the US
without warrants, because as foreign governments, they are not covered by
the Fourth Amendment. It expressly provided that after a declaration of war
the Attorney General could authorize warrantless wiretaps for 15 days.
Those steps alone would have sufficed to prohibit warrantless wiretaps, but
the Congress went further.
4) It expressly made it a crime for government officials "acting under color
of law" to engage in electronic eavesdropping "other than pursuant to
statute." 50 U.S.C. 1809.
5) Congress again made explicit that the FISA and the criminal wiretap laws
"shall be the exclusive means by which electronic surveillance .
communications may be conducted." (Now codified at 18 USC 2511(f).) Section
201 of the FISA as enacted in 1978 provided that:
Nothing contained in this chapter, or section 605 of the Communications Act
of 1934, shall be deemed to affect the acquisition by the United States
Government of foreign intelligence information from international or foreign
communications by a means other than electronic surveillance as defined in
section 101 of the Foreign Intelligence Surveillance Act of 1978, and
procedures in this chapter and the Foreign Intelligence Surveillance Act of
1978 shall be the exclusive means by which electronic surveillance, as
defined in section 101 of such Act, and the interception of domestic wire,
oral, and electronic communications may be conducted. Pub. L. No. 95-511, 92
Stat. 1783, § 201 (1978).
Confronted with this explicit law against warrantless wiretaps, the
administration is now claiming that it had authority from Congress. But its
contention that the congressional resolution for the use of force following
the September 11, attacks authorized its warrantless surveillance is
ludicrous. FISA states that following a declaration of war by the Congress,
the President, acting through the Attorney General,
may institute electronic surveillance without a court order for no more than
fifteen days. (50 USC 1811.) At best, the September 2001 resolution is the
equivalent of a declaration of war. At most, therefore, the resolution
authorized warrantless surveillance for fifteen days. Nothing in the
resolution can be read as amending this specific limitation to allow
unlimited warrantless surveillance.
http://www.informationclearinghouse.info/article11360.htm
--
"Of course the people don't want war. But after all, it's the leaders of the
country who determine the policy, and it's always a simple matter to drag
the people along whether it's a democracy, a fascist dictatorship, or a
parliament, or a communist dictatorship. Voice or no voice, the people can
always be brought to the bidding of the leaders. That is easy. All you have
to do is tell them they are being attacked, and denounce the pacifists for
lack of patriotism, and exposing the country to greater danger."
-- Herman Goering at the Nuremberg trials
http://www.snopes.com/quotes/goering.htm
--
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