Monday, December 26, 2005

"Illegal Wiretapping"

Much has been discussed regarding the legality of wiretapping and screening foreign communications from the United States vis a vis FISA.

However, noone seems to be discussing the actual harm involved in such wiretaps, which any federal court would immediately seek to discover. Also, most assume that FISA has not been litigated in analogous circumstances, in which the courts have stated that the president has the inherent responsiblity to conduct foreign intelligence, and, in that vein, has the inherent authority to conduct warrantless searches.

Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n. 4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.

Although the plurality opinion in Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C.Cir.1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 1685, 48 L.Ed.2d 187 (1976), suggested the contrary in dicta, it did not decide the issue.

The district court in the Truong case had excluded evidence obtained from electronic surveillance after the government's investigation-the court found-had converted from one conducted for foreign intelligence reasons to one conducted primarily as a criminal investigation. (The defendants were convicted based in part on surveillance evidence gathered before that point.) The district judge had focused on the date that the Criminal Division had taken a central role in the investigation. The court of appeals endorsed that approach stating:

We think that the district court adopted the proper test, because once surveillance becomes primarily a criminal investigation, the courts are entirely competent*743 to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis of a criminal prosecution.

In Re: Sealed Case, 310 F.3d 717 (2002).

It seems clear to me, if these wiretaps/surveillance are being used to locate, destroy and intercept foreign terrorist cells, there can be no fourth amendment violations. The moment, however, that this information is used against a citizen in a criminal proceeding, the Fourth Amendment should apply. Most of the discussions, however, seem to presume a criminal proceeding. Without one, I can't imagine who the aggrieved party is, or what expectation of privacy is being asserted.

I think a discussion as to the radiation searches is highly superfluous:

Thus, we conclude that “[n]one of the interests which form the basis for the need for protection of a residence, namely the intimacy, personal autonomy and privacy associated with a home, are threatened by [FLIR] thermal imagery.” Id. at 1059; see Myers, 46 F.3d at 670 (determining that the thermal surveillance of a home was constitutional, the Seventh Circuit concluded that “[a] thermal imaging scan does not intrude in any way into the privacy and sanctity of a home”). Robinson has failed to establish an objective or reasonable expectation of privacy in the heat emitted from his house resulting from the unlawful marijuana cultivation inside, even if he had met the subjective component of the Katz test. Significantly, we are unconvinced that society ever would accept use of the Fourth Amendment to shield unlawful activity within one's home when there are noninvasive methods of detecting such criminal activity through legitimate byproducts, such as the heat at issue in this case.

U.S. v. Robinson, 62 F.3d 1325 (11th Cir. 1995).

Of course, the larger issue is that the president is damned if he did, damned if he didn't. Had the president not done so, but was shown to have had information that would have led him to want to do so, and we were attacked again, hell would have no fury like that scorn.

Such are the Hobbesian choices of a President.


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