Monday, October 01, 2007

Now It's Bush vs. the Courts on Warrantless Spying

A Secret FISA Court Ruling in January Striking Down Part of His Spying Program Is Joined by Federal Court Rulings in New York and Oregon Declaring Parts of Patriot Act Unconstitutional

Front of Supreme Court Building

The White House has, so far, successfully stymied efforts by Congress to scale back President Bush's highly controversial warrantless wiretapping program, even browbeating the legislative branch of government into passing a law -- albeit a temporary one -- to expand it. But now the executive branch faces a confrontation with the judicial branch -- one that is likely to end up in the Supreme Court (pictured above), whose nine justices ruled unanimously in 1972 that the Fourth Amendment requires the government to obtain court warrants before it can eavesdrop on Americans' telephone calls. (Photo: Getty Images)

(Updated 5:30 a.m. EDT Wednesday, October 3, 2007)



The Associated Press

WASHINGTON — A program to employ spy satellites for certain domestic uses has been postponed because of privacy concerns.

Congress had already provided money for the program, which was to begin later this month. But some lawmakers demanded more information about its legal basis and what protections there were to ensure that the government was not peering into the homes of Americans. As a result, the Homeland Security Department is not formally moving ahead with the program until it answers those questions, a department spokesman said.

The program would have expanded access to material gathered by satellites that monitor American territory to agencies involved in emergency response, border control and law enforcement. A new office within the Homeland Security Department, called the National Applications Office, would coordinate requests from civilian agencies for satellite information. Currently, civilian use of the material has generally been limited to monitoring weather and climate changes and to making maps.

Representative Bennie Thompson (D-Mississippi), an opponent of the program, commended the department on Monday for its decision to “go back to the drawing board and get it right.” The department would not say how long it planned to postpone the program. “We are cooperatively working with the Congress to answer any questions that they have,” said a spokesman, Andrew Lluberes. “We are totally confident that this is going to go forward.”


By Skeeter Sanders

For months now, President Bush has been putting unrelenting lobbying pressure on Congress to expand his authority to eavesdrop on Americans' telephone conversations overseas without court warrants.

Congress responded by passing -- just before its August recess -- temporary "emergency" legislation to broaden the administration's wiretapping powers, but Bush remains unsatisfied. He wants the law, which is slated to expire next February, to be made permanent.

What the lawmakers didn't know -- and what the White House deliberately kept secret from the public -- was that the Foreign Intelligence Surveillance Court secretly issued a ruling in January that struck down a key element of Bush's highly controversial program.

The ruling was kept under wraps until it was inadvertently disclosed in August by House Minority Leader John Boehner (R-Ohio) during an interview with Fox News. But aside from Fox, The Washington Post and its sister magazine, Newsweek, Boehner's disclosure received very little media attention.

But now, the White House faces a full-scale legal assault on its surveillance program -- setting the stage for a battle which is highly likely to be fought in the Supreme Court. In the last three weeks, two federal judges on opposite sides of the country -- one in New York and the other in Oregon -- came to the same conclusion: That the warrantless spying is unconstitutional.

The judges struck down several key provisions of the USA Partiot Act that allowed the administration to not only tap Americans' telephones, but also seek corporate records without court warrants.

The White House is now in full panic mode, fearing that its warrantless surveillance program is in serious legal jeopardy. It should be panicked, for Bush chose to ignore both the Constitution and history when he chose to justify the constitutionally unjustifiable, rather than comply with the law. Now he faces the prospect of total repudiation by the one branch of government he cannot control: The judicial branch.

Combined with a similar ruling by a Michigan federal judge in August of last year, these latest court decisions come more than 35 years after the Supreme Court unanimously declared that the government must always obtain court warrants for such surveillance, in compliance with the Fourth Amendment's ban on unreasonable searches and seizures.

FISA Court: Administration Exceeded Its Authority on Wiretaps

The secret surveillance court ruled that the administration exceeded its authority in attempting to broadly eavesdrop on communications between two locations overseas that were routed through the United States, the Post reported, citing unnamed government sources familiar with the decision.

The January ruling was a stinging rebuke of the administration's longstanding assertions that the NSA's warrantless surveillance efforts were legal. Until then, the White House had refused to submit those efforts to the intelligence court for its approval.

The White House responded by lobbying Congress to amend the Foreign Intelligence Surveillance Act (FISA) to allow it to bypass the intelligence court's jurisdiction -- even as it publicly agreed in February to submit the NSA's surveillance work to the court for its review.

The White House has been trying since March to build a case for the amendment -- all the while keeping secret from the public and from many members of Congress the true reason for its lobbying effort.

"It clearly shows that Congress has been playing with half a deck," Jim Dempsey, policy director for the Center for Democracy and Technology, told the Post. "The administration is asking lawmakers to vote on a very important piece of legislation based upon selective declassification of intelligence."

New York Federal Judge: FBI Must Obtain Court Subpoenas for Corporate Records

On September 7, a U.S. District Court judge in New York struck down parts of the USA Patriot Act that authorized the FBI to acquire corporate records using informal "national security letters," or NSLs, issued by the Justice Department, instead of subpoenas issued by a court.

The Patriot Act empowered the FBI to force telephone companies and Internet service providers to turn over their customer records without court authorization and to bar them from informing their customers that their records were being turned over. It also imposed severe restrictions on the courts' ability to review challenges to the so-called "gag rule."

Judge Victor Marrero ruled that the "gag rule" violated the companies' First Amendment right to inform their customers and that the NSLs, as well as the restrictions on judicial review, violated the constitutional separation of powers between the executive and judicial branches of government.

The ruling effectively forces the FBI to obtain court subpoenas for the companies' customer records -- subpoenas which, once issued, become public record.

In a strongly-worded, 32-page ruling, Marrero denounced the restrictions on judicial review as "the first step in a series of intrusions into the role of the judiciary that would be the legislative equivalent of breaking and entering, with an ominous free pass to the hijacking of constitutional values.”

Oregon Federal Judge: Fourth Amendment Requires 'Probable Cause' for Warrants to be Issued

On the other side of the country, a U.S. District Court judge in Oregon declared last Wednesday that two other provisions of the Patriot Act are unconstitutional because they allowed search warrants to be issued without a showing of probable cause -- a showing which is required by the Fourth Amendment.

The ruling was made in a lawsuit against the government brought by Brandon Mayfield, a Portland attorney who was wrongly identified by the FBI as a suspect in the 2004 commuter train bombings in Madrid that killed 191 people in what became Spain's version of 9/11.

Mayfield claimed that secret searches of his house and office under the amended FISA law violated his Fourth Amendment right against unreasonable search and seizure. Judge Ann Aiken agreed with Mayfield, repeatedly criticizing the government.

Aiken ruled that Patriot Act amendments to the FISA law "now permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."

Report Blames 'Sloppy Work' by FBI Investigators

A former Christian who converted to Islam, Mayfield was placed under 24-hour FBI surveillance soon after the Madrid bombings on March 11, 2004. His telephone was tapped and his home and law offices were secretly searched. He was taken into custody on May 6, 2004, after the FBI said that a fingerprint found on a detonator at the scene of the Madrid bombing was his.

But two weeks after Mayfield's arrest, he was released after an embarrassed FBI admitted that it had erred and that the fingerprint belonged to someone else. The Justice Department's inspector general, in a scathing report, charged that federal prosecutors and FBI agents "made inaccurate and ambiguous statements" to a federal judge to obtain arrest and criminal search warrants against Mayfield.

Despite an FBI apology, Mayfield sued the bureau. He settled part of the lawsuit for $2 million, but retained the right to challenge parts of the Patriot Act, which greatly expanded the authority of law enforcement agencies to investigate people suspected of acts of terrorism.

"For over 200 years, this nation has adhered to the rule of law — with unparalleled success. A shift to a nation based on extra-constitutional authority is prohibited, as well as ill-advised," Aiken wrote in her 48-page ruling, which rejected a request by then-Attorney General Alberto Gonzales to dismiss Mayfield's lawsuit on national-security grounds.

"The attorney general's office was asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning," Aiken wrote. "This court declines to do so."

Rulings Reaffirm 1972 Supreme Court Decision

For this blogger, the rulings are a vindication of what I've written in this space again and again and again, almost from the day I launched this blog in December 2005: That Bush's warrantless surveillance program is unconstitutional under the Fourth Amendment and is an unconscionable disregard of the rule of law, as embodied by the Supreme Court's unanimous 1972 ruling in United States v. Plamondon.

The battle is far from over, of course. President Bush, by relentlessly demanding that Congress make permanent his expanded powers to spy on Americans without court warrants and by publicly slamming what he calls "activist judges," has made it clear that he has no respect for the very Constitution that he is sworn by his oath of office to "preserve, protect and defend."

This man who presently occupies the Oval Office -- and even more so, his vice president -- is obsessed with amassing greater and greater power for himself and for his eventual successor, whom he obviously assumes will be a conservative Republican like himself.

Or perhaps -- God forbid -- Bush has much darker ambitions, which, if he carries them out, could destroy our democratic system and replace it with an authoritarian dictatorship. Remember the Philippines' Ferdinand Marcos? Do a Google search of Marcos and you'll see what I mean.

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Volume II, Number 50
Copyright 2007, Skeeter Sanders. All rights reserved.


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