IN CASE IT COMES DOWN TO IT...
As we all know, the "Terrorist Surveillance Program" (does the word "Terrorist" refer to the object of the program or to its creator?) has been used, at least in part, solely for domestic security surveillance.
The Supreme Court directly addressed the issue of whether a warrantlesss domestic surveillance program violates the 4th Amendment. 8-0, the Court concluded that the program did:
Syllabus
SUPREME COURT OF THE UNITED STATES
407 U.S. 297
United States v. United States District Court
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 70-153 Argued: February 24, 1972 --- Decided: June 19, 1972
The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of
gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.
On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld.
Note this:
Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U.S.C. § 2511(3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government."
The Government relies on § 2511(3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval."
Held:
1. Section 2511(3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 301-308. [p298]
Note how nothing in the AUMF signed into law shortly after Sept. 11th (the resolution allowing the President to use military force, which he says was Congress' way of saying, "violate the 4th Amendment") authorizes court-approved (let alone NOT-court approved) surveillance for any crimes, and note how nothing in the AUMF says the President is not limited by the Constitution in his ability to protect us against overthrow, or clear and present danger to structure and existence. In other words, the President, based on holding (1), doesn't even have the merely precatory Congressional language argument going for him, let alone the argument that Congress ACTUALLY intended to let him break the law. (In other words, he can't even argue that there was a disclaimer - he can't even argue a losing issue).
2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 314-321; 323-324.
(a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314-315.
(b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security suveillances are conducted solely within the discretion of the Executive Branch, without the detached judgment of a neutral magistrate. Pp. 316-318.
(c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321.
444 F.2d 651, affirmed.
POWELL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, STEWART, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 324. BURGER, C.J., concurred in the result. WHITE, J., filed an opinion concurring in the judgment, post, p. 335. REHNQUIST, J., took no part in the consideration or decision of the case. [p299]
This was because he was one of Nixon's goons in the Attorney General's office before coming on to the Court. He no doubt would have been the lone dissenting voice. Rehnquist never met a Fourth Amendment violation he didn't love.
The Court, in the opinion (often referred to as the "Keith" case, since one of the actual defendants - not the nominal defendant - the District Court - which rendered a decision adverse to the government), explicitly left open the question of whether its holding applied to foreign intelligence surveillance (defined as where at least one party to the conversation is speaking from a location outside of the U.S.)
Well, the government didn't want the Court to have the opportunity to let the Court actually decide a case on this point that could be potentially adverse to it, so in 1978, the Foreign Intelligence Surveillance Act was created. This Act creates a Foreign Intelligence Surveillance Court, before which the government must present an application for a warrant that contains sufficient facts to convince the FISA judge (who is roughly equivalent in the federal judicial hierarchy, in terms of power, to a district court judge), that the surveillance (search) is justified. If the search is justified, the judge will issue the warrant, and the search can be conducted. Warrants are almost ALWAYS granted by this court. This means that the DE FACTO (and de jure) standard the judges use to assess whether the grant of a warrant is justified is not the normal criminal law standard of probable cause, but rather something less - much less - most likely an "any evidence" standard. Warrants can even be applied for retroactively - up to 72 hours after a search has beeen conducted, and retroactive warrants are almost always granted.
When the FISA Court was created, the Court only could grant warrants for searches - that is to say, for things such as allowing interceptions of telephone calls. Such interceptions are considered searches because they involve the act of looking for something and finding it without physically taking dominion and control over it. In the late 1990's, Congress amended the Court's powers such that the court could grant warrants for seizures (of property and persons) as well.
When Republicans (who believed that Bush had not broken the law by violating FISA in that he did not apply for warrants for searches OR seizures under his terrorist surveillance program) tried defending his (perfectly lawful) actions, they claimed that, yes, Clinton violated FISA too (at the same time claiming FISA was irrelevant, of course, and while pretending to, of course, hold Clinton up as a moral exemplar), by stating that he ordered the seizure of Aldrich Ames' papers in violation of FISA. At the time of these seizures, FISA did not require that such seizures required a warrant; nor did any other law; Clinton's actions may have been of dubious legality, but they were not PATENTLY illegal.
Here is why Bush's violation of FISA, in addition to being illegal, is UNCONSTITUTIONAL. In 1952, the Supreme Court decided Youngstown Sheet and Tube v. Sawyer ("The Steel Seizure Case."). The events leading up to that case involved Harry Truman deciding to, instead of letting steel workers and their managers settle a strike under existing legal provisions (and under a recently passed law that REQUIRED that said law's provisions, and no other law or act could dispose of the strike, end it prematurely, or otherwise affect it in any manner), order the federal government to seize (put under federal government control) certain steel mills. He simply felt that the strike was taking too long, and that the resultant non-production of steel was resulting in a shortage of war materiel for the Korean war. The steel executives complied with his order, reluctantly, but immediately filed an injunction in federal court declaring that the seizure was an unconstitutional violation of separation of powers, as well as a taking of their property without just compensation in violation of the 5th Amendment. The case got to the Supreme Court quite quickly. By a vote of 6-3, the Court held that the seizure was unconstitutional. Not many people remember who wrote the majority opinion or what it says. The opinion that has become to be recognized "the law" of this case is the concurring opinion of Justice Jackson, who provided a seemingly simple, but eloquent framework, for analyzing the case.
Jackson observed that the Constitution itself - its text - and any reasonable implications drawn therefrom - simply did not provide the answer to the question of whether Truman's actions were constitutional (yes, textualists, sometimes, judges DO have to "legislate from the bench.") Since this was so, he said, and since no prior Supreme Court case was illuminative, he said that resolution of the question must necessarily turn on something that IS in the Constitution. That "something" was Congress' power to legislate rules pertaining to the resolution of labor disputes involving non-federal employees (derived from its power to regulate interstate commerce). Jackson said that when Congress passed/passses a law pursuant to a specific enumerated power (and the law that it passed in this case that Truman violated was such a law), assuming that the law is, ceteris paribus, constitutional, the President's ability to claim "Commander-in-Chief" powers (i.e. to ingore the law and to sub slientio declare it unconstitutional by taking the law into his own hands by, say, commandeering the steel mills) is "at its lowest ebb," meaning it SHOULD be and in fact is at its weakest. This is so because Congress, when it passes such a law, as it did in this case, not only passed a law pursuant to Article 1, Section 8, but passed a law that was a necessary and proper incident of its power to declare (and monitor) war. In other words, in the Steel Seizure case, Congress knew full well that it passed the law when the Korean War was going on, but nonetheless, as the body with the power to declare war, decided that the President was not above the law. Jackson, through this analysis, concluded that because Truman violated a specific constitutional law, Truman's power was at its lowest ebb, and that his seizure was unconstitutional in that it violated the separation of powers. Jackson further stated that if the President commits an act, claimed to have been committed pursuant to the "Commander in Chief" authority, and the act has neither been forbidden or permitted by Congress, the President's action MAY or MAY not be constitutional, depending upon, among other things, 1) whether the act really is effected pursuant to the President's Article II powers to conduct war (as opposed to the President's just saying it is); 2)whether the President's action, standing alone, violates any provision of the Constitution; and 3) whether the act has beeen historically sanctioned by Congress or the Court in the past. Jackson ended his analysis by stating that if the President commits an act that already HAS the approval from Congress in the form of a law making legal that act, the President is acting, as Commander in Chief, at the height of his powers.
Cases since Steel Seizure have more or less followed Jackson's analysis. Of course, now, we have at least one - if not two, three, or four - justices who believe that, contrary to their professed "strict constrictionist" views, the President's powers in time of war are extratextual and are derived from natural law. Of course, only the President has such powers to these Justices. The federal government does not, the Congress does not, and the judiciary does not - never mind the fact that the Constitution contains more verbiage pertaining to the powers of the Congress and federal government than it does to those of the President.
Under Justice Jackson's analysis (with a Keith gloss put on it), should the issue of whether the TSP is unconstitutional arise (and indeed it might; the case is already in several federal district courts), the answer, to me, is obvious: the program is unconstitutional in all aspects.
The Supreme Court directly addressed the issue of whether a warrantlesss domestic surveillance program violates the 4th Amendment. 8-0, the Court concluded that the program did:
Syllabus
SUPREME COURT OF THE UNITED STATES
407 U.S. 297
United States v. United States District Court
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 70-153 Argued: February 24, 1972 --- Decided: June 19, 1972
The United States charged three defendants with conspiring to destroy, and one of them with destroying, Government property. In response to the defendants' pretrial motion for disclosure of electronic surveillance information, the Government filed an affidavit of the Attorney General stating that he had approved the wiretaps for the purpose of
gather[ing] intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.
On the basis of the affidavit and surveillance logs (filed in a sealed exhibit), the Government claimed that the surveillances, though warrantless, were lawful as a reasonable exercise of presidential power to protect the national security. The District Court, holding the surveillances violative of the Fourth Amendment, issued an order for disclosure of the overheard conversations, which the Court of Appeals upheld.
Note this:
Title III of the Omnibus Crime Control and Safe Streets Act, which authorizes court-approved electronic surveillance for specified crimes, contains a provision in 18 U.S.C. § 2511(3) that nothing in that law limits the President's constitutional power to protect against the overthrow of the Government or against "any other clear and present danger to the structure or existence of the Government."
The Government relies on § 2511(3) in support of its contention that "in excepting national security surveillances from the Act's warrant requirement, Congress recognized the President's authority to conduct such surveillances without prior judicial approval."
Held:
1. Section 2511(3) is merely a disclaimer of congressional intent to define presidential powers in matters affecting national security, and is not a grant of authority to conduct warrantless national security surveillances. Pp. 301-308. [p298]
Note how nothing in the AUMF signed into law shortly after Sept. 11th (the resolution allowing the President to use military force, which he says was Congress' way of saying, "violate the 4th Amendment") authorizes court-approved (let alone NOT-court approved) surveillance for any crimes, and note how nothing in the AUMF says the President is not limited by the Constitution in his ability to protect us against overthrow, or clear and present danger to structure and existence. In other words, the President, based on holding (1), doesn't even have the merely precatory Congressional language argument going for him, let alone the argument that Congress ACTUALLY intended to let him break the law. (In other words, he can't even argue that there was a disclaimer - he can't even argue a losing issue).
2. The Fourth Amendment (which shields private speech from unreasonable surveillance) requires prior judicial approval for the type of domestic security surveillance involved in this case. Pp. 314-321; 323-324.
(a) The Government's duty to safeguard domestic security must be weighed against the potential danger that unreasonable surveillances pose to individual privacy and free expression. Pp. 314-315.
(b) The freedoms of the Fourth Amendment cannot properly be guaranteed if domestic security suveillances are conducted solely within the discretion of the Executive Branch, without the detached judgment of a neutral magistrate. Pp. 316-318.
(c) Resort to appropriate warrant procedure would not frustrate the legitimate purposes of domestic security searches. Pp. 318-321.
444 F.2d 651, affirmed.
POWELL, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, STEWART, and BLACKMUN, JJ., joined. DOUGLAS, J., filed a concurring opinion, post, p. 324. BURGER, C.J., concurred in the result. WHITE, J., filed an opinion concurring in the judgment, post, p. 335. REHNQUIST, J., took no part in the consideration or decision of the case. [p299]
This was because he was one of Nixon's goons in the Attorney General's office before coming on to the Court. He no doubt would have been the lone dissenting voice. Rehnquist never met a Fourth Amendment violation he didn't love.
The Court, in the opinion (often referred to as the "Keith" case, since one of the actual defendants - not the nominal defendant - the District Court - which rendered a decision adverse to the government), explicitly left open the question of whether its holding applied to foreign intelligence surveillance (defined as where at least one party to the conversation is speaking from a location outside of the U.S.)
Well, the government didn't want the Court to have the opportunity to let the Court actually decide a case on this point that could be potentially adverse to it, so in 1978, the Foreign Intelligence Surveillance Act was created. This Act creates a Foreign Intelligence Surveillance Court, before which the government must present an application for a warrant that contains sufficient facts to convince the FISA judge (who is roughly equivalent in the federal judicial hierarchy, in terms of power, to a district court judge), that the surveillance (search) is justified. If the search is justified, the judge will issue the warrant, and the search can be conducted. Warrants are almost ALWAYS granted by this court. This means that the DE FACTO (and de jure) standard the judges use to assess whether the grant of a warrant is justified is not the normal criminal law standard of probable cause, but rather something less - much less - most likely an "any evidence" standard. Warrants can even be applied for retroactively - up to 72 hours after a search has beeen conducted, and retroactive warrants are almost always granted.
When the FISA Court was created, the Court only could grant warrants for searches - that is to say, for things such as allowing interceptions of telephone calls. Such interceptions are considered searches because they involve the act of looking for something and finding it without physically taking dominion and control over it. In the late 1990's, Congress amended the Court's powers such that the court could grant warrants for seizures (of property and persons) as well.
When Republicans (who believed that Bush had not broken the law by violating FISA in that he did not apply for warrants for searches OR seizures under his terrorist surveillance program) tried defending his (perfectly lawful) actions, they claimed that, yes, Clinton violated FISA too (at the same time claiming FISA was irrelevant, of course, and while pretending to, of course, hold Clinton up as a moral exemplar), by stating that he ordered the seizure of Aldrich Ames' papers in violation of FISA. At the time of these seizures, FISA did not require that such seizures required a warrant; nor did any other law; Clinton's actions may have been of dubious legality, but they were not PATENTLY illegal.
Here is why Bush's violation of FISA, in addition to being illegal, is UNCONSTITUTIONAL. In 1952, the Supreme Court decided Youngstown Sheet and Tube v. Sawyer ("The Steel Seizure Case."). The events leading up to that case involved Harry Truman deciding to, instead of letting steel workers and their managers settle a strike under existing legal provisions (and under a recently passed law that REQUIRED that said law's provisions, and no other law or act could dispose of the strike, end it prematurely, or otherwise affect it in any manner), order the federal government to seize (put under federal government control) certain steel mills. He simply felt that the strike was taking too long, and that the resultant non-production of steel was resulting in a shortage of war materiel for the Korean war. The steel executives complied with his order, reluctantly, but immediately filed an injunction in federal court declaring that the seizure was an unconstitutional violation of separation of powers, as well as a taking of their property without just compensation in violation of the 5th Amendment. The case got to the Supreme Court quite quickly. By a vote of 6-3, the Court held that the seizure was unconstitutional. Not many people remember who wrote the majority opinion or what it says. The opinion that has become to be recognized "the law" of this case is the concurring opinion of Justice Jackson, who provided a seemingly simple, but eloquent framework, for analyzing the case.
Jackson observed that the Constitution itself - its text - and any reasonable implications drawn therefrom - simply did not provide the answer to the question of whether Truman's actions were constitutional (yes, textualists, sometimes, judges DO have to "legislate from the bench.") Since this was so, he said, and since no prior Supreme Court case was illuminative, he said that resolution of the question must necessarily turn on something that IS in the Constitution. That "something" was Congress' power to legislate rules pertaining to the resolution of labor disputes involving non-federal employees (derived from its power to regulate interstate commerce). Jackson said that when Congress passed/passses a law pursuant to a specific enumerated power (and the law that it passed in this case that Truman violated was such a law), assuming that the law is, ceteris paribus, constitutional, the President's ability to claim "Commander-in-Chief" powers (i.e. to ingore the law and to sub slientio declare it unconstitutional by taking the law into his own hands by, say, commandeering the steel mills) is "at its lowest ebb," meaning it SHOULD be and in fact is at its weakest. This is so because Congress, when it passes such a law, as it did in this case, not only passed a law pursuant to Article 1, Section 8, but passed a law that was a necessary and proper incident of its power to declare (and monitor) war. In other words, in the Steel Seizure case, Congress knew full well that it passed the law when the Korean War was going on, but nonetheless, as the body with the power to declare war, decided that the President was not above the law. Jackson, through this analysis, concluded that because Truman violated a specific constitutional law, Truman's power was at its lowest ebb, and that his seizure was unconstitutional in that it violated the separation of powers. Jackson further stated that if the President commits an act, claimed to have been committed pursuant to the "Commander in Chief" authority, and the act has neither been forbidden or permitted by Congress, the President's action MAY or MAY not be constitutional, depending upon, among other things, 1) whether the act really is effected pursuant to the President's Article II powers to conduct war (as opposed to the President's just saying it is); 2)whether the President's action, standing alone, violates any provision of the Constitution; and 3) whether the act has beeen historically sanctioned by Congress or the Court in the past. Jackson ended his analysis by stating that if the President commits an act that already HAS the approval from Congress in the form of a law making legal that act, the President is acting, as Commander in Chief, at the height of his powers.
Cases since Steel Seizure have more or less followed Jackson's analysis. Of course, now, we have at least one - if not two, three, or four - justices who believe that, contrary to their professed "strict constrictionist" views, the President's powers in time of war are extratextual and are derived from natural law. Of course, only the President has such powers to these Justices. The federal government does not, the Congress does not, and the judiciary does not - never mind the fact that the Constitution contains more verbiage pertaining to the powers of the Congress and federal government than it does to those of the President.
Under Justice Jackson's analysis (with a Keith gloss put on it), should the issue of whether the TSP is unconstitutional arise (and indeed it might; the case is already in several federal district courts), the answer, to me, is obvious: the program is unconstitutional in all aspects.
posted by EnterCenter at 5:16 PM
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