Monday, April 07, 2008

Memo Confirms Bush's Disregard of 4th Amendment In Warrantless Wiretaps

Justice Department Memo Issued in 2001 Shows White House Regarded Its Anti-Terror Surveillance Program as 'Immune' From Fourth Amendment's Requirement for Court Warrants; New Book Reveals Heated Dissension in FBI and Justice Department Over Program's Legality

So now the truth comes out: The Bush administration knew all along that its warrantless wiretapping program against suspected terrorists would run afoul of the Fourth Amendment constitutional mandate that the government obtain warrants for such eavesdropping. But the Justice Department concocted a claim in a secret 2001 memorandum disclosed last week that the Fourth Amendment did not apply to terrorism cases. The White House claims it has "disavowed" the memorandum. But why is the administration still publicly insisting to this day that its warrantless program is legal when, in fact, it's not? And why is it insisting that Congress grant telecommunications companies that illegally cooperated with the government's warrantless surveillance program immunity from invasion-of-privacy lawsuits? (AP File Photo)

(Updated 5:30 a.m. Wednesday, April 9, 2008)

By Skeeter Sanders

For more than two years -- almost from the time The 'Skeeter Bites Report was launched -- this blogger has argued over and over and over again that the Bush administration's warrantless surveillance program against terrorism suspects was -- and is -- unconstitutional.

For more than two years, this blogger has repeatedly cited a unanimous 1972 U.S. Supreme Court decision and a 1975 U.S. Court of Appeals ruling in arguing that the program violates the Fourth Amendment's ban on unreasonable government searches and seizures by not obtaining court warrants for such surveillance.

Now, it turns out, the Bush administration knew all along that what it was doing was unconstitutional -- but concocted a rationale to claim that its warrantless anti-terror wiretapping was exempt from the Fourth Amendment's requirements.

A secret legal memorandum issued by the Justice Department in 2001 made precisely that argument. It was written at the request of the White House by John Yoo, then the deputy assistant attorney general, and addressed to Alberto Gonzales, the White House counsel at the time.

Gonzales, who would go on to become attorney general in 2005, asserted the president has the "inherent authority" to unilaterally order secret intercepts by the National Security Agency of telephone and e-mail exchanges between people inside the United States and their contacts abroad without first obtaining court warrants.

So controversial is the government’s eavesdropping program that it sparked heated legal concerns and silent protests inside the Bush administration within hours of its adoption in October 2001, according to a newly-published book.

In making its case to Congress for broadened spy powers, the White House has emphasized what it claimed were the firm legal foundations of the program conducted after the September 11, 2001 terrorist attacks -- and had even taken the unusual step of giving lawmakers access to classified presidential orders from 2001 and early legal opinions to try to show that the program was on sound legal footing from the start, the book says.

New York Times reporter Eric Lichtblau's new volume, Bush's Law: The Remaking of American Justice is based on interviews with scores of current and former Bush administration officials.

Memo's Existence Disclosed in Pentagon Response to ACLU Lawsuit

The memo, dated October 23, 2001, was written just days before Bush administration officials, including Vice President Dick Cheney, briefed four House and Senate leaders on the NSA's secret wiretapping program for the first time.

The memo remains secret, but its existence was disclosed last Tuesday in a footnote of a separate secret memo, dated March 14, 2003, released by the Pentagon in response to a Freedom of Information Act lawsuit by the American Civil Liberties Union.

"Our office recently concluded that the Fourth Amendment had no application to domestic military operations," the footnote states, referring to a document titled "Authority for Use of Military Force to Combat Terrorist Activities Within the United States."

Exactly what domestic military action was covered by the October memo is unclear. But federal documents indicate that the memo relates to the National Security Agency's Terrorist Surveillance Program, or TSP.

That program intercepted phone calls and e-mails on U.S. soil, bypassing the normal legal requirement that such eavesdropping be authorized by a secret federal court established under the Foreign Intelligence Surveillance Act.

The program began after the September 11, 2001 terrorist attacks and continued until January 17, 2007 -- after the Democrats took control of Congress -- when the White House resumed seeking surveillance warrants from the Foreign Intelligence Surveillance Court.

The FISA law, passed by Congress in 1978, established the court specifically to review and either approve or reject requests from the executive branch for warrants authorizing such surveillance for national security purposes -- and explicitly requires the government to seek such warrants.

The law arose from a scandal in the 1970s resulting from congressional investigations that uncovered years of domestic spying abuses by the FBI under then-Director J. Edgar Hoover against those suspected of communist sympathies, American Indians, Black Panthers and other activists, including Dr. Martin Luther King, Jr. and Malcolm X.

Lawmakers then were very disturbed at how routinely FBI agents had listened in on U.S. citizens' phone calls without following any formal procedures under the bureau's notorious COINTELPRO counter-intelligence program that ran from 1956 until Hoover's death in 1971.

As they drafted FISA and created its court, the lawmakers warned then that only strong legislation, debated in public, could stop future administrations from eavesdropping without court approval.

White House Challenged in Congress, Courts Over Wiretaps

The administration had little choice: It saw the handwriting on the wall when the Democrats vowed to conduct rigorous investigations of the program -- including public hearings in which administration officials were certain to face hostile questioning.

The White House also was fighting off a legal challenge to the warrantless surveillance. A federal district court judge in Michigan ruled in August 2006 that the program was an unconstitutional breach of the Fourth Amendment's ban on unreasonable searches and seizures and the separation of powers between the executive, legislative and judicial branches of government.

White House spokesman Tony Fratto said Wednesday that the Fourth Amendment finding in the October memo was not the legal underpinning for the TSP.

"TSP relied on a separate set of legal memoranda," Fratto told The Associated Press. The Justice Department outlined that legal framework in a January 2006 white paper issued by the Justice Department a month after the program was revealed by The New York Times.

The government itself related the October memo to the TSP when it included it on a list of documents that were responsive to the ACLU's request for records from the program. It refused to hand them over.

White House Claims It 'Disavowed' Memo. . .

Late Wednesday, Justice Department spokesman Brian Roehrkasse said department officials believe the October 2001 memo was not about the eavesdropping program, but he did not explain why it was included on requests for documents linked to the TSP.

Earlier, Roehrkasse said the statement in the footnote does not reflect the current view of the department's Office of Legal Counsel.

"We disagree with the proposition that the Fourth Amendment has no application to domestic military operations," he said. "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

Roehrkasse would not say exactly when that legal opinion was overturned internally. But he pointed to the January 2006 white paper.

"The white paper does not suggest in any way that the Fourth Amendment does not apply to domestic military activities, and that is not the position of the Office of Legal Counsel," he said.

Suzanne Spaulding, a national security law expert and former assistant general counsel at the CIA, said she found the Fourth Amendment reference in the footnote troubling, but added: "To know [the Justice Department] no longer thinks this is a legitimate statement is reassuring."

Rubbish, says the ACLU.

"The recent disclosures underscore the Bush administration's extraordinarily sweeping conception of executive power," said Jameel Jaffer, director of the ACLU's National Security Project. "The administration's lawyers believe the president should be permitted to violate statutory law, to violate international treaties and even to violate the Fourth Amendment inside the U.S. They believe that the president should be above the law."

"Each time one of these memos comes out you have to come up with a more extreme way to characterize it," Jaffer said.

The ACLU is challenging in court the government's withholding of the October 2001 memo.

. . . But Still Pushes for Telecom Immunity from Lawsuits

Yet even as the administration says it has "disavowed" the October 2001 memo, it continues to argue publicly that the warrantless program is legal -- and continues its attempt to bully the Democratic-controlled House of Representatives into passing a bill to grant immunity to telecommunications companies from invasion-of-privacy lawsuits by their customers. that turned over their customers' confidential records to the government without demanding court warrants.

This blogger has pointed out repeatedly that the telecoms violated both the Fourth Amendment and the Electronic Communications Privacy Act of 1996 by not demanding that the government produce court warrants before turning over their confidential customer records.

For their part, House Democrats twice refused to yield to the White House's demand, insisting that to grant the telecoms immunity would violate Americans' First Amendment right to petition the courts for redress of the government's illegal search of their telephone records without warrants.

The administration's claim that it has "disavowed" the October memo is further belied by its appeal of the Michigan federal court's ruling that declared the warrantless eavesdropping unconstitutional. On July 6 last year, a federal appeals court effectively overturned the lower court's decision by dismissing the plaintiffs' lawsuit, ruling that the plaintiffs lacked legal standing to challenge the program's legality.

Why? Because the plaintiffs couldn't prove that the their communications were being monitored by the government. And the reason they couldn't prove it? The government refused to turn over information about the warrantless wiretapping that would have bolstered the plaintiffs' case, invoking national security.

For the administration to claim that it no longer wiretaps terror suspects without warrants on the one hand and insists on telecom immunity from invasion-of-privacy lawsuits on the other hand -- as well as challenging court decisions declaring the program unconstitutional is the height of a "Catch-22" mindset that defies all logic.

Deputy AG Balked at Approving Warrantless Spying; High Anxiety at the FBI

In one previously undisclosed episode, according to Lictblau's book, Deputy Attorney General Larry Thompson refused to sign off on any of the secret wiretapping requests that grew out of the program because of the secrecy and legal uncertainties surrounding it.

With the veil of secrecy around the program, Thompson was not given access to details of the NSA operation, and was so uncomfortable with the idea of approving this new breed of wiretap applications that he had a top adviser write a memorandum assessing the legal ramifications, Lictblau writes. The adviser warned him not to sign the warrant applications because it was unclear where the wiretaps were coming from.

Meanwhile, FBI technicians stumbled onto the NSA’s program accidentally within 12 hours of its inception, according to Lichtblau, setting off what was described as a brief firestorm of anxiety among senior FBI officials. Some who had not been told about the program were concerned that the agency was violating laws that required a court order for the singling out of Americans in wiretaps, and they immediately alerted highers-up to what they had discovered.

“What’s going on here? Is this legal?” Lichtblau quoted one FBI official as asking after learning of the N.S.A. operation on American soil.

For his part, FBI Director Robert Mueller assured nervous officials that the program had been approved by Bush, Lichtblau wrote, citing several unnamed officials. But the president's approval came weeks before Yoo issued his legal memo endorsing the program.

Why Will No One Acknowledge 1972 High Court Ruling?

The Supreme Court in 1972 unanimously struck down a similar warrantless surveillance program by the Nixon administration, declaring that the program violated the Fourth Amendment requirement that the government obtain court warrants to wiretap the telephone conversations of suspected domestic radicals during the Vietnam War.

The high court's ruling was subsequently bolstered in 1975 by an equally unanimous decision of the U.S. Court of Appeals for the District of Columbia, the nation's second-highest court, to expand its scope to include foreign intelligence cases.

The administration of then-President Gerald Ford chose not to appeal that ruling to the Supreme Court, assuming that it would likely lose. Thus the appeals court decision remains in force to this day.

So why is no one else acknowledging that the Bush administration's warrantless surveillance program defies the 1972 ruling by the nation's highest court -- bolstered by the 1975 appeals court?

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Volume III, Number 25
Copyright 2008, Skeeter Sanders. All rights reserved.