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Walk Tall and Carry a Big Shtick

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As reported in the Des Moines Register, Gov. Tom Vilsack said Monday that Democrats risk political backlash if they object to the Bush administration's wiretapping but cannot show that Americans' civil liberties are at risk.

"If the president broke the law, that's unacceptable. But I think it's debatable whether he did," Vilsack told Des Moines Register editors and reporters.

It’s not debatable, Tom. Even the President has admitted that. But since the DLC (Debilitated Lunatic Club) can’t seem to figure it out, I’m going to help them along.

This is for you, Governor.

FISA, the Foreign Intelligence Surveillance Act (which covers all government implemented electronic surveillance, both domestic and international), enacted in 1978, requires prior judicial approval. This means that the government must get a court order in order to perform electronic surveillance on a United States citizen on US soil. The order comes from a secret court, the FISC (Foreign Intelligence Surveillance Court), and is thus safeguarded from compromise.

The Supreme Court has been very careful on the subject of electronic surveillance and the 4th Amendment to the United States Constitution. The Court put forth the following requirements, which must be met in order to perform a wiretap without impinging upon the 4th Amendment:

  • A showing of probable cause that a particular offense has been or is about to be committed.
  • The applicant must describe with particularity the conversations to be intercepted.
  • The surveillance must be for a specific, limited period of time in order to minimize the invasion of privacy.
  • There must be continuing probable cause showings for the surveillance to continue beyond the original termination date.
  • The surveillance must end once the conversation sought is seized.
  • Notice must be given unless there is an adequate showing of exigency.
  • A return on the warrant is required so that the court may oversee and limit the use of the intercepted conversations.

In case you aren’t familiar with the 4th Amendment, Tom, here it is: 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.

Now, the secrecy of investigations which require the use of wiretaps and other forms of electronic surveillance is somewhat inevitable—it’s pretty tough to find incriminating evidence against someone if they know you are looking, that’s a given. Understanding this, we can accept the need for the FISC to oversee FISA applications and implementation.

Of course, even taking this into account, the surveillance program which has been used by the Bush administration falls short of legal on several fronts. The FISC has granted 4,000 warrants since 9/11, leaving many of us extremely curious as to why the Bush administration felt the need to circumvent the process and the law on dozens of occasions.

Bob Barr, in a recent article, summed it up quite nicely:

The language of the statute itself ought to be clear enough. But in case anyone was still in doubt, discussions at the hearing about the legislative history of FISA reminded us that no less a revered and respected former federal judge and attorney general than Griffin Bell, fully understood that the FISA law was indeed intended to be the sole vehicle whereby the federal government is authorized to conduct surreptitious electronic surveillance to collect foreign intelligence of American citizens within the United States.

However, the administration seems to believe that it is entitled, in our “post 9/11” world, to work outside the law when it is convenient. Bush admits that the program is illegal, but in essence, just doesn’t care.

One of the biggest problems with the President’s assertion that his program was and is necessary in order for the United States to be protected from terrorists after September 11th is that it may have been implemented just after he entered office in 2001, before 9/11. Even excepting this possible circumstance, a group over more than a dozen legal scholars have said (via TruthOut):

"The program appears on its face to violate existing law," wrote the scholars of constitutional law, some of whom worked in various senior capacities in Republican and Democratic administrations, in an extraordinary letter to Congress that laid out, point by point, why the president is unauthorized to permit the NSA to spy on Americans and how he broke the law by approving it.

"Even conceding that the President in his role as Commander in Chief may generally collect 'signals intelligence' on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA," the letter states. "Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, that is, not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim. The Supreme Court has never upheld warrantless wiretapping within the United States."

Additionally, "if the administration felt that FISA was insufficient, the proper course was to seek legislative amendment, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA," the letter continues. "One of the crucial features of a constitutional democracy is that it is always open to the President - or anyone else - to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable."

The argument claimed by the administration uses the Unitary Executive Theory:

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Katherine Brengle is a freelance writer and activist.
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