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Who says Bush's end run around surveillance laws are illegal?
The Supreme Court.
Back in 1972, the Supreme Court took on a case (where President Nixon ordered wiretaps on individuals suspected of plotting to bomb a CIA building) and ruled that the President's power under the Constitution to defend the country from attacks does not give the executive the power to unilaterally order wiretaps. (US v. US District Court, 407 U.S. 29)
Official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech. Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent.We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.
As I wrote yesterday, this is not a story about the necessity or propriety of the wiretaps, it's about the method used to order the wiretap, a method that shows complete disdain for the principle of checks and balances.
What did the Supreme Court say in 1972 about this very question?
It may well be that, in the instant case, the Government's surveillance of Plamondon's conversations was a reasonable one which readily would have gained prior judicial approval. But this Court "has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end." Katz, supra, at 356-357.The Fourth Amendment contemplates a prior judicial judgment, not the risk that executive discretion may be reasonably exercised. This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.
And what does such unchecked surveillance power mean for those who dissent from the Government?
History abundantly documents the tendency of Government - however benevolent and benign its motives - to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs.The danger to political dissent is acute where the Government attempts to act under so vague a concept as the power to protect "domestic security." Given the difficulty of defining the domestic security interest, the danger of abuse in acting to protect that interest becomes apparent. […]
The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.
The historical judgment, which the Fourth Amendment accepts, is that unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.
But what about President Bush's argument that the secret and warrantless searches were reviewed by top administration officials and a secret court judge?
The independent check upon executive discretion is not satisfied, as the Government argues, by "extremely limited" post-surveillance judicial review. Indeed, post-surveillance review would never reach the surveillances which failed to result in prosecutions.Prior review by a neutral and detached magistrate is the time-tested means of effectuating Fourth Amendment rights.
Supreme Court decisions remain the highest law in this country.
Despite whatever advice President Bush received from his lawyers, it is clear that the NSA wiretaps he ordered were illegal and set a dangerous precedent.
Related posts and stories worth your time:
- The Washington Post's Barton Gellman's roundup of recent revelations of government spying.
- The Washington Post's Dana Milbank on Congress finally realizing they should actually be watchdogs.
- The L.A. Times's David G. Savage and Bob Drogin on the legality of the wiretaps.
Technorati Tags: NSA, SupremeCourt, Wiretaps, Surveillance, executivepower
Posted by Ryan Singel at December 18, 2005 01:32 PM
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» Bush defends NSA surveillance program from Homeland Security or Homeland Stupidity
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Tracked on December 20, 2005 11:04 AM
Post a commentHmmm, welcome to the real world and if I were you I would reread the FISA laws and not pay much attention to the delusional NYT or WaPo...
COURT SAYS U.S. SPY AGENCY CAN TAP OVERSEAS MESSAGES
By DAVID BURNHAM, SPECIAL TO THE NEW YORK TIMES (NYT) 1051 words Published: November 7, 1982
A Federal appeals court has ruled that the National Security Agency may lawfully intercept messages between United States citizens and people overseas, even if there is no cause to believe the Americans are foreign agents, and then provide summaries of these messages to the Federal Bureau of Investigation.
Because the National Security Agency is among the largest and most secretive intelligence agencies and because millions of electronic messages enter and leave the United States each day, lawyers familiar with the intelligence agency consider the decision to mark a significant increase in the legal authority of the Government to keep track of its citizens.
Reverses 1979 Ruling
The Oct. 21 decision of the United States Court of Appeals for the Sixth Circuit involves the Government's surveillance of a Michiganborn lawyer, Abdeen Jabara, who for many years has represented Arab-American citizens and alien residents in court. Some of his clients had been investigated by the F.B.I.
Mr. Jabara sued the F.B.I, and the National Security Agency, and in 1979 Federal District Judge Ralph M. Freeman ruled that the agency's acquisition of several of Mr. Jabara's overseas messages violated his Fourth Amendment right to be free of ''unreasonable searches and seizures.'' Last month's decision reverses that ruling.
In earlier court proceedings, the F.B.I. acknowledged that it then disseminated the information to 17 other law-enforcement or intelligence agencies and three foreign governments.
The opinion of the three-judge panel of the Court of Appeals held, ''The simple fact remains that the N.S.A. lawfully acquired Jabara's messages.''
The court ruled further that the lawyer's Fourth Amendment rights ''were not violated when summaries of his overseas telegraphic messages'' were furnished to the investigative bureau ''irrespective of whether there was reasonable cause to believe that he was a foreign agent.''
Posted by: russ at December 20, 2005 02:22 PM