"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Mukasey alleges in his op-ed that "(t)he increased volume of applications for judicial orders under FISA impaired our ability to collect critical intelligence, with little if any corresponding benefit to the privacy of people in the U.S." In November 2007, Mark Klein, a retired AT&T technician, visited Washington D.C. to talk to congressional staff members and journalists about his personal knowledge of wiretapping by the National Security Agency (which directed the Terrorist Surveillance Program), including massive unfiltered electronic surveillance of Internet traffic and telephone calls to and from U.S. citizens. This disclosure has been an integral part of a pending lawsuit against AT&T, yet this information had received little media attention prior to Mr. Klein's trip to Washington. Monitoring an electronic communication is a search. As specified by the Fourth Amendment, the Government must have some reasonable basis for directing a search at a particular target. Although a reasonable search does not necessarily require a warrant, probable cause is a prerequisite for any reasonable search. Contrary to what both McConnell and Mukasey posit, a search is not reasonable merely because the underlying motivation (e.g., the possibility that a search may uncover dangerous illegal activity) for the search is reasonable. It is possible to understand why McConnell might not understand this legal distinction, but such equivocation is inexcusable from the Attorney General of the United States. Perhaps because he was intent on proving that "government intelligence" is an oxymoron, McConnell babbled in his barely coherent op-ed about the inconvenience imposed by the law:
"Before the Protect America Act was enacted, to monitor the communications of foreign intelligence targets outside the United States, in some cases we had to operate under the Foreign Intelligence Surveillance Act, known as FISA, a law that had not kept pace with changes in technology. In a significant number of these cases, FISA required us to obtain a court order. This requirement slowed - and sometimes prevented - our ability to collect timely foreign intelligence."In his op-ed, Mukasey parrots the claim that,
"Until recently, our surveillance efforts were hampered by the unintended consequences of an outdated law, the Foreign Intelligence Surveillance Act, which was enacted in 1978 to establish a system of judicial approval for certain intelligence surveillance activities in the United States."Both Mukasey and McConnell know that FISA has been updated many times since 1978 to accommodate several Presidents (including on several different occasions during the tenure of President Bush the Younger). Both also know that FISA was not bypassed because FISA was outdated; FISA was bypassed because the Bush Administration decided to use unconstitutional methods to acquire intelligence via the Terrorist Surveillance Program. What is most irksome to Mukasey and McConnell is our outdated Constitution, which retains "quaint" prohibitions that have not kept pace with the ability of our technology to create an efficient national security state. Just before Congress went on vacation in August 2007, the President, Mr. McConnell and their minions in Congress used a fake threat of an imminent terrorist attack to frighten the Senate and the House of Representatives into passing (with very little scrutiny and brief whimpering) a six-month revision of FISA called the PROTECT AMERICA ACT OF 2007 (PAA of 2007). McConnell declares in his op-ed that the PAA of 2007 made "the country safer while protecting the civil liberties of Americans", but the reality is that the PAA of 2007 effectively nullified significant protections of U.S. citizens and other legal U.S. residents with respect to unreasonable searches and searches without warrants. The PAA of 2007 temporarily codified much of the illegal Terrorist Surveillance Program. The PAA of 2007 did not provide for any meaningful Congressional oversight, and although the PAA of 2007 provided for FISC review, this was limited to FISC review of the surveillance procedures, and it did not provide any substantive oversight of the actual surveillance. Furthermore, the language in the PAA of 2007 was extremely deferential to the judgment of the Executive, as stated in Section 105C: "The court's review shall be limited to whether the Government's determination is clearly erroneous." Recently, writing in response to columnist Joe Klein (whose self-professed ignorance about FISA did not prevent him from offering his own criticism of the timid Democrats), House Judiciary Committee Chairman John Conyers explained the negotiations between Congressional Democrats and Mr. McConnell prior to passage of the PAA of 2007:
We addressed every one of the concerns Mr. McConnell raised. He said he needed to clarify that a court order was not required for foreign-to-foreign communications -- our bill did just that. McConnell said he needed an assurance that telecommunications companies would be compelled to assist in gathering of national security information - our bill did that. The DNI said he needed provisions to extend FISA to foreign intelligence in addition to terrorism - the bill did that. He asked us to eliminate the requirement that the FISA Court adjudicate how recurring communications to the United States from foreign targets would be handled - the bill did that. McConnell insisted that basket warrants be structured to allow additional targets to be added after the warrant was initially approved - again, the bill did that.When this legislation was described to DNI McConnell, he acknowledged that "it significantly enhances America's security." Yet, suddenly, on the eve of the vote, Director McConnell withdrew his support after consultation with the White House. If the media wanted to identify over-the-top partisanship, they could begin by citing the declaration of David Addington, Vice President Cheney's Chief of Staff, that "We're one bomb away from getting rid of that obnoxious FISA Court," and DNI McConnell's assertion that by merely having an open debate on surveillance, "some Americans are going to die."
In a interview with a a reporter from the El Paso Times newspaper on August 14, 2007 (after passage of the PAA of 2007), Mr. McConnell made exaggerated and unsupported allegations about the length of time and the amount of effort required to comply with FISA. Specifically, Mr. McConnell alleged in this newspaper interview that it takes 200 hours to assemble a FISA warrant request on a single telephone number.
What Mr. McConnell failed to acknowledge is that his allegation referred to the length of time it takes to assemble a warrant request by writing in charcoal on the back of a wooden shovel, using only the light of a fireplace, and then transporting such warrant request by tramp steamer from Afghanistan to Guam for transcription. After this newspaper interview, an aide to McConnell explained to him the miracle of word processing and global communication systems. Mr. McConnell has whined that, prior to passage of the PAA of 2007, FISA hindered the ability to collect information from foreign intelligence targets because "foreign-to-foreign" communications might be routed through a location in the United States, and the acquisition of such communications therefore was considered to be "in the United States" under the FISA statute. This defect in FISA was also cited by Mr. Mukasey in his op-ed. McConnell states that "the intelligence community should spend its time protecting our nation, not providing privacy protections to foreign terrorists and other diffuse international threats.", but both McConnell and Mukasey know that the contested issue is not foreign terrorists. In his testimony before the Senate Judiciary Committee in September 2007, Mr. McConnell stated that he would oppose any language that would amend FISA only to exclude "foreign-to-foreign" communications from the scope of FISA because the intelligence-gathering agencies cannot demonstrate with certainty that those people with whom their targets will communicate would be exclusively outside the United States and because such language would not enable intelligence-gathering agencies to monitor communications of foreign intelligence targets outside the United States who may communicate with a "sleeper" or co-conspirator who is inside the United States.
These are specious arguments because FISA, as it existed prior to the PAA of 2007, did not require intelligence-gathering agencies to predetermine whom their foreign intelligence targets would contact, and also did not require intelligence-gathering agencies to guarantee that communications from foreign intelligence targets would be exclusively between persons located outside the United States. It has long been taken for granted that U.S. citizens do not lose our Constitutional rights with respect to our own government when we travel outside the country, but Section 105A of the PAA of 2007 states:
"Nothing in the definition of electronic surveillance under 101(f) shall be construed to encompass surveillance directed at a person reasonably believed to be located outside of the United States."
One could argue that this change in FISA does not alter the Fourth Amendment to the Constitution, and technically that is true, but from a practical standpoint, the Fourth Amendment Constitutional rights of U.S. citizens with respect to our own government are no longer protected while we are outside the country. Although Mr. Mukasey and Mr. McConnell repeatedly emphasize the problems associated with foreign intelligence targets located outside the United States, electronic surveillance of foreign intelligence targets located outside the United States usually did not require a warrant prior to passage of the PAA of 2007 because electronic surveillance of foreign intelligence targets located outside the United States was not included in the definition of electronic surveillance under FISA [Title 50 U.S. Code, Chapter 36, Subchapter 1, Section 1801(f)]. In September 2007, Mr. McConnell testified before the Senate Judiciary Committee that the PAA of 2007 does not need to be rewritten to protect the rights of United States citizens who may be outside the United States because it is alleged that such rights are protected by Section 2.5 of Executive Order 12333. Former Attorney General Alberto Gonzales and his successor, Mr. Mukasey, have both testified before the Senate Judiciary Committee that they do not think that the President is subject to laws which restrict the extremely vague inherent powers of the President under their convoluted interpretation of the Constitution. We are supposed to trust the Executive to adhere to an Executive Order when it has already been established that the Executive will not abide by a law (FISA) passed by Congress.
On January 24, 2008, Senator Jay Rockefeller and Senator Kit Bond offered an amendment to pending FISA legislation to protect the constitutional rights of U.S. citizens during periods of absence from the United States, but this addition to the Senate Intelligence Committee revision of FISA appears to be an attempt to decorate a turd. In his op-ed, McConnelll states that "the intelligence community needs a law that does not require a court order for surveillance directed at a foreign intelligence target reasonably believed to be outside the United States, regardless of where the communications are found", but the real problem as it is viewed by the Attorney General and the Director of National Intelligence concerns limitations imposed by FISA with respect to electronic surveillance without warrants of U.S. citizens and other legal U.S. residents, and the surveillance powers sought by the President and his subordinates via the PAA of 2007 far exceed the authority necessary to circumvent the alleged impediments imposed by FISA relative to foreign intelligence targets. Despite their obfuscations, the Attorney General and the Director of National Intelligence want to be able to conduct electronic surveillance without warrants and without probable cause in a wide variety of circumstances involving U.S. citizens and other legal U.S. residents, which would have required warrants under FISA prior to passage of the PAA of 2007. Although legitimate national security concerns certainly exist, it is far too easy for the Federal Government to obstruct litigation through the process of withholding information from plaintiffs by alleging that release of such information would endanger the national security. It should be obvious, but obviously it is not obvious, that the Federal Government often alleges that revelation of certain information will endanger the national security in situations where revelation of such information would cause only embarrassment. Officially, the Supreme Court did not recognize the "state secrets" privilege until the landmark 1953 decision in UNITED STATES v. REYNOLDS, and it should not surprise anyone that (despite the tortured logic in a Federal Appeals Court decision in 2005 concerning this case) the Federal Government had invoked the "state secrets" privilege fraudulently because there was no justifiable national security issue involved in this case. Also, it should not surprise anyone that the Bush Administration has asserted the "state secrets" privilege improperly and with regularity to obstruct justice. A good example is the use of the "state secrets" privilege to suppress evidence in the case of Sibel Edmonds, who was fired by the F.B.I. for reporting security breaches and other official misconduct in the Bureau's translator services division. Similar suppression of justice by a foreign government would be called by it's rightful name. For most practical purposes, the Tenth Amendment to the Constitution has been relegated to the dustbin of history by the Supreme Court, but the Tenth Amendment to the Constitution states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." A naive person might reason that a common-law rule of evidence (which is neither mentioned in, nor implied by, the language in our Constitution) could not be used as a basis for obstructing those rights which are delineated in our Constitution. However, the "state secrets" privilege is an extra-constitutional construct that can be used and has been used to nullify the Bill of Rights. Contrary to procedures outlined by the Supreme Court related to evaluation of the "state secrets" privilege, many judges (including the judge who presided over the case of Sibel Edmonds) do not thoroughly examine the evidence in question to determine whether the assertion of the "state secrets" privilege by the Government is valid, and many judges (including the judge who presided over the case of Sibel Edmonds) do not rigorously analyze whether a lawsuit might succeed in the absence of the evidence which is subject to suppression. Despite the fact that court decisions have made it almost impossible for plaintiffs to contest the legality of the assistance obtained by the Federal Government from the telecommunications providers, Mr. Mukasey does not have faith in using the "state secrets" privilege as a method of avoiding the embarrassment which would result if illegal activities of the Bush Administration are disclosed to the public via court proceedings. In his op-ed, Mr. Mukasey addressed the retroactive immunity for telecommunications providers included in the version of FISA legislation approved by the Senate Intelligence Committee:
"(I)t would provide protections from lawsuits for telecommunications companies that have been sued simply because they are believed to have assisted our intelligence agencies after the 9/11 attacks. The bill does not, as some have suggested, provide blanket immunity for those companies. Instead, a lawsuit would be dismissed only in cases in which the attorney general certified to the court either that a company did not provide assistance to the government or that a company had received a written request indicating that the activity was authorized by the president and determined to be lawful. It is unfair to force such companies to face the possibility of massive judgments and litigation costs, and allowing these lawsuits to proceed also risks disclosure of our country's intelligence capabilities to our enemies."If (as is expected) Congress were to grant retroactive immunity to telecommunications providers, and if the Federal Government were to withhold information (which currently is being done) from the courts on the basis that such information would endanger the national security, the provision limiting the scope of the immunity would operate as a sham. Mr. McConnell emphasizes in his op-ed that "it is critical for the intelligence community to have liability protection for private parties that are sued only because they are believed to have assisted us after Sept. 11, 2001." The arguments by Mukasey and McConnell with respect to immunity for telecommunication providers are very misleading because both know that the Bush Administration consistently circumvented FISA through the implementation of the Terrorist Surveillance Program. Both also know that current court cases involving the allegedly defunct Terrorist Surveillance Program have foundered due to the inability of plaintiffs to obtain information necessary to establish their right to sue the Federal Government and/or the owners of the information technology through which the Federal Government obtains intelligence. Resolution of this prominent defect in FISA is not addressed by pending FISA legislation, but it is a defect that will be exacerbated by any expansion of the Federal Government's surveillance powers. On January 22, 2008, Senator Edward Kennedy and Senator Arlen Specter introduced separate legislation that would give more direction to courts to allow litigation to proceed and simultaneously protect "state secrets", but in the meantime, due to excessively restrictive interpretations of the "state secrets" privilege by various courts, lawsuits against telecommunication providers are the only realistic avenue for plaintiffs to discover if their electronic communications have been monitored illegally by our protectors. Because the Federal Government can shield itself effectively from judicial review, the Federal Government has no meaningful restraint on the abuse of surveillance powers. Mr. McConnell laments that "those in the private sector who stand by us in times of national security emergencies deserve thanks, not lawsuits", but the myth of telecommunication providers as victims in this soap opera is a falsehood wrapped in sentimental twaddle, and this is evident to anyone who thinks for a moment about the vast array of legal resources employed by corporations when they are litigating against Federal and State agencies or when they are lobbying Congress to reduce taxes and eliminate regulations. In his testimony before the Senate Judiciary Committee on January 30, 2008, Mr. Mukasey used the "state secrets" privilege as the basis for his argument that litigation involving the telecommunication providers should not be allowed to proceed regardless of whether the telecommunication providers may have violated FISA, and Mr. Mukasey simultaneously dismissed any possibility that that the telecommunication providers may have violated the law. It would seem that courts are unnecessary for as long as we have Mr. Mukasey available to make summary judgments about all allegations of illegal activity. The Senate and House have been struggling against themselves during the past few months to craft a more permanent revision of Foreign Intelligence Surveillance Act (FISA) that corrects some of the damage they inflicted on FISA via the Protect America Act of 2007 (which would have expired effective February 1, 2008 if Congress had not approved a 15-day extension). The FISA revision which was approved by the Senate is an attempt by weak-willed Senate Democrats to demonstrate that the Republicans do not have a monopoly on contempt for the Constitution. In 2006, in response to widespread use of electronic surveillance without warrants (involving U.S. citizens and other legal U.S. residents in addition to foreign targets) under the illegal Terrorist Surveillance Program, Congress passed legislation stipulating that FISA was the exclusive means by which electronic surveillance could be conducted for foreign intelligence purposes. Now, the Senate legislation to amend FISA does not state that FISA is the exclusive means by which electronic surveillance may be conducted even though 57 Senators voted in favor of this amendment. The Senate revision of FISA does little to improve on the illegal Terrorist Surveillance Program and also grants retroactive immunity for telecommunications providers that knowingly violated the law by assisting the Federal Government with the illegal Terrorist Surveillance Program, but the FISA revision approved by the House of Representatives does not grant retroactive legal immunity for these telecommunication providers. The version of FISA revision passed by the House of Representatives establishes more oversight by Congress and by the Foreign Intelligence Surveillance Court (FISC), and states explicitly that FISA is the exclusive means by which electronic surveillance may be conducted. However, the Senate, which has been incorporated into the legal departments of the telecommunications industry, has now voted to legalize the Terrorist Surveillance Program, and the "Blue Dog" Democrats in the House of Representatives are also anxious to capitulate to the Republicans. The President has threatened to veto the FISA rewrite if FISA does not provide retroactive legal immunity for telecommunication providers, and if the final version of FISA does not resemble more closely the evisceration of FISA he temporarily achieved in August 2007. The fallback position for the President's legal advisors is their assertion that the allegedly defunct Terrorist Surveillance Program was legal because the President's inherent power (i.e., power which is alleged to be implied but which is not mentioned in the Constitution) as commander-in-chief (which is stated but not defined in Article II of the Constitution) authorized him to bypass the powers of Congress which are detailed in Section 1 and Section 8 of Article I of the Constitution. In the Report prepared by the Senate Intelligence Committee in October 2007 to accompany the Senate version of a more permanent revision of FISA, four Republican Senators (including the ranking Republican on the Senate Intelligence Committee) added a statement reiterating their belief that the Terrorist Surveillance Program was legal because the unwritten inherent powers of the President under Article II of the Constitution superseded the legislative power of Congress as expressed through FISA. Damning information about this issue was revealed in an August 2007 New York Times article, with reference to the PAA of 2007, by Eric Lichtblau and James Risen, who wrote:
At a tense meeting last week with lawyers from a range of private groups active in the wiretapping issue, senior Justice Department officials refused to commit the administration to adhering to the limits laid out in the new legislation and left open the possibility that the president could once again use what they have said in other instances is his constitutional authority to act outside the regulations set by Congress. At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting. That stance angered Mr. Fein and others. It sent the message, Mr. Fein said in an interview, that the new legislation, though it is already broadly worded, "is just advisory. The president can still do whatever he wants to do. They have not changed their position that the president's Article II powers trump any ability by Congress to regulate the collection of foreign intelligence."As Henny Youngman would have said: "This is a strict construction of the Constitution!?!?!?" The rebuttal to an excess of Banana Republic Dictator Theater can be found in the Supreme Court decision written by Justice Robert Jackson in the 1952 case of YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER:
Brian Walsh, a senior legal fellow at the conservative Heritage Foundation who attended the same private meeting with Justice Department officials, acknowledged that the meeting - intended by the administration to solicit recommendations on the wiretapping legislation - became quite heated at times. But he said he thought the administration's stance on the president's commander-in-chief powers was "a wise course.""They were careful not to concede any authority that they believe they have under Article II," Mr. Walsh said. "If they think they have the constitutional authority, it wouldn't make sense to commit to not using it."
"When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system."From a practical standpoint, the Constitution is whatever the Supreme Court says it is, but an assertion by the President that he is entitled to engage in massive electronic surveillance without warrants and without probable cause, involving citizens and other legal residents of the United States, is contrary to the plain meaning of the Fourth Amendment to the Constitution even if FISA is rewritten to authorize such surveillance and even if the Supreme Court were to uphold such a revision of FISA. We used to be the land of the free and the home of the brave, but now we are the land of "nine-eleven changed everything". There are few transgressions of the President which are not excused by fear-mongering with respect to our so-called "war on terror", and this is a major impediment to a rational discussion of the limits on the President's authority and our professed adherence to the rule of law. The President's profligate use of signing statements to distort the meaning of various pieces of legislation is ample evidence that the President cannot be entrusted with poorly-defined powers which are prone to abuse. On May 17, 2002, the FISA Court released an opinion which stated that FBI and Justice Department officials had supplied erroneous information to the court in more than 75 applications for search warrants and wiretaps, including one signed by then-FBI Director Louis J. Freeh. In March 2007, the Inspector General for the Department of Justice released a report confirming extensive misuse of National Security Letters in a sample of four FBI field offices, and an internal audit by the FBI confirmed that the problem was far more extensive than it previously had been thought to be. The discovery several months ago that the CIA Director is investigating the CIA Inspector General is a good example of why a weasel cannot be left alone to guard the chicken coop. Protecting the lives of our fellow citizens is not a goal which should be dismissed casually, but the threat of a terrorist attack is relatively insignificant when compared to some other threats in which we actually participate willingly or threats that we take for granted:
Cigarette smoking causes over 400,000 deaths each year, and alcohol-related deaths exceed 75,000 each year, but the two most destructive drugs in the United States are legal, and Prohibition was a dismal failure due to non-compliance by the public. We know that reducing the speed limit on our highways would save many thousands of lives every year, but the driving public would oppose such a policy because it would cause too much inconvenience. Obesity-related illnesses have become a major cause of premature deaths in the United States, but people are not afraid of food. Approximately 30,000 people are killed each year in the United States by citizens and other legal residents using guns, but most people accept that disarming the populace is unconstitutional and unrealistic (at least while Charlton Heston is still living).Al-Qaida in Iraq is less dangerous to us than the amorphous army of drunk drivers in the United States. It is likely that terrorists will occasionally succeed in killing some people in the United States, and we should do everything practical that is allowed within our Constitution to prevent such deaths, but we should not bargain away our inalienable rights due to fears which are disproportionate to the actual threat. The right of "habeas corpus" which protects people against unlawful and arbitrary detention has been one of the most fundamental principles of any free society since King John was forced by his nobles to sign the Magna Carta. Section 9 of Article I of the United States Constitution states:
"The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."Despite the fact that various aspects related to the right of "habeas corpus" are delineated in the Fourth, Fifth and (most specifically) Sixth Amendments to the Constitution, former Attorney General Alberto Gonzales stated in testimony before the Senate Judiciary Committee on January 17, 2007 that the Constitution does not guarantee the right of "habeas corpus" to every United States citizen or resident. Although President Lincoln suspended the right of "habeas corpus" selectively during the Civil War (as did Jefferson Davis in the Confederacy), this course of action was quite limited in scope with respect to the existing danger, and the suspension of these rights was very limited in duration. However, our so-called "war on terror" is an endless war, and therefore we would be wise not to jettison essential elements of our Constitution because the thought of Islamic terrorists induces us to wet our pants. Unfortunately, there are many politicians who are betting that they will not pay any political price by trading away parts of our Constitution in return for votes from a cowering public. (1) Bend over; (2) Put your head between your legs; (3) Kiss your right to privacy goodbye. This was the new order of things as outlined in a speech by Donald Kerr, Principal Deputy Director of the Office of National Intelligence, on October 23, 2007 at the fourth annual Geospatial Intelligence Symposium in San Antonio, Texas. With reference to Internet sites like Myspace and Facebook, Mr. Kerr said that Americans essentially are giving up privacy anyway by posting personal information on such social networking sites. Mr. Kerr, age 68, stated that the two most recent generations have very different ideas about what is essential privacy and about what they would wish to protect concerning their lives and affairs. Therefore, Mr. Kerr concluded, anyone who has typed his/her name on "Google" understands that protecting privacy from our own government is not a fight which can be won, and (he really said this) "it's not for us to inflict one size fits all".
The "greatest generation" and the baby boomers must now apologize for inflicting the Bill of Rights on our younger generations. If I understand Mr. Kerr's spurious argument correctly (and I do), he thinks it is a waste of time and energy to try to save the Fourth Amendment to the Constitution because Generation X and Generation Y have chosen to post their lives on the Internet. This is a timely reminder that a fool and his Constitution are soon parted.