Friday, January 16, 2009

Court Affirms Wiretapping Without Warrants

Now, at first glance of the above headline in the New York Times you might think "what the hell??? How could any court rule this way?"

At least, that was my initial response (while gasping). But, with closer inspection one realizes this isn't your usual court, and this decision doesn't necessarily set the kind of precedent one might fear.

Before I get to the New York Times piece, written by the reporter who broke the story on the warrantless wiretapping program a few years back - James Risen - I want to point you to a very informative interview by Rachel Maddow of Constitutional Scholar Jonathan Turley last night.

Let's just say after listening to Turley's analysis, I felt a lot better about this (grossly unconstitutional) that, it's not as important as Big Brother might try to convince us it is. Most importantly, as you will see, this decision has little relation to the President's initial wiretapping program, and the case that could be brought against him (unlikely...but if it is).

The bottom line is this decision WAS NOT about the illegal program Bush initiated before the 2007 FISA law passed by Congress, it is only related to that 2007 law itself. So this by no means settles anything (though it clearly "helps" Bush and co's argument).

With that said however, this still is NOT good news. The bottom line remains that this is the first decision by an appeals court that says the Fourth Amendment’s requirement for warrants does not apply to the foreign collection of intelligence involving Americans. This could have - but let's hope it doesn't - broad implications for national security law.

Click here to watch the Turley interview.

Now let's go to the New York Times article. James Risen reports:

In a rare public ruling, a secret federal appeals court has said telecommunications companies must cooperate with the government to intercept international phone calls and e-mail of American citizens suspected of being spies or terrorists.


But the ruling, handed down in August 2008 by the Foreign Intelligence Surveillance Court of Review and made public Thursday, did not directly address whether President Bush was within his constitutional powers in ordering domestic wiretapping without warrants, without first getting Congressional approval, after the terrorist attacks of 2001.


“I think this kind of maintains the status quo,” said Scott Silliman, an expert on national security law at Duke University. “I don’t think it is a surprise that the FISA court found that the legislation was constitutional. They are going to defer to Congress, especially since there was a lot of discussion when the law was passed about the ability of the government to compel providers.”

The ruling is the latest legal chapter in a dispute dating back to the aftermath of the Sept. 11 attacks, when Mr. Bush secretly ordered the National Security Agency to eavesdrop on the international communications of American citizens without the approval of Congress or the courts. After the agency’s program was publicly disclosed in December 2005, critics said it violated a 1978 law. The White House initially opposed any new legislation to regulate surveillance, arguing that it would be an infringement of the president’s powers.


The case arose in 2007, when a telecommunications company refused to comply with the government’s demands that it cooperate without warrants under the terms of the Protect America Act. The company was forced to comply, under threat of contempt, while it challenged the law in the FISA court, the opinion noted.

The company argued that the law violated the constitutional rights of its customers and that the act placed too much power and discretion in the hands of the executive branch. It also raised specific privacy problems, which the court ruling did not identify, that could occur under the surveillance directives it had received from the government.

Click here to read the rest of the article.

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