This is a discussion on NSA Surveillance Program within the Law Enforcement, Military & Homeland Security Discussion forums, part of the Related Topics category; Originally Posted by AgentX Clinton was impeached. You are correct. With all the hoopla surrounding that I could not remember if he was actually impeached ...
It's a little glib to say a judge detailed to a classified intelligence court is necessarily inept when it comes to making the decision whether or not to grant a warrant.
Judges are professionals at applying standards and rules, whatever the setting, and a judge assigned to the court isn't going to be ignorant of the intelligence environment. And appealing to fear because "Americans might get killed if the warrant isn't granted" is a diversion. The same possibility exists with judicial review in criminal matters, but we don't get hysterical about it.
FISA is a pretty solid piece of legislation which fairly effectively balances the need for collections with the need for civil liberties, IMHO.
Edit: And as a guy, again, who works in issues and places where intelligence collection is critical to my work and safety, I don't like adding red tape or making our guys' jobs harder than they need to be.
Edit II: Wow, I just realized that I hadn't read the article all too well. To extend FISA protections to non-American citizens outside of US territory is indeed absolutely absurd.
For me it is simple get a warrant and you can listen, read and record all you want.
That part of the system I have trusted with its checks and balances in place.
My job is in forensic evidence seizure and examination and in my Lab I will not even begin acquiring and logging evidence until you show me a warrrant or a very specifc letter of legal authority with detailed scope of the seasure and by whom's verifiable authority.
Why would anyone accept less, just get a warrent.
If no one will issue a warrent for evidence seizure or surveillance then maybe someone is being overzealous and oversteping a bit.
In God we trust, Everyone else we monitor...
Well said ccw9mm. Well said.
We must all remember that the 4th amendment's probable cause/warrant requirement was drafted by the same venerable individuals who drafted the second amendment. The Bill of Rights cannot be read piecmeal, it must be applied and adhered to completely, even if it causes inconvienience at times; lest we allow the flame of liberty and freedom to eventually be extinguished by one small raindrop at a time.
When you've got 'em by the balls, their hearts & minds will follow. Semper Fi.
What also bothers me about this is the immunity. For one, government employees aren't supposed to be breaking laws, and they also aren't supposed to be involving the private sector in criminal activities. Not only is that a problem, but it's my understanding that the immunity is being granted without the crimes even being detailed. Why bother having laws if that's how it's going to be?
So what exactly should a "warrant requirement" be...? I'm not clear on who you think should need a warrant to do what.
Non-US persons outside of US territory have no REP vis-a-vis the US gov't, so there's no need for a warrant to collect against them. No US court has jurisdiction outside of the US, and it's not like a US warrant means anything to anyone else. (we currently can't even get a search warrant for places WITHIN the US's recognized extraterritorial jurisdiction, such as a US embassy or embassy housing abroad, because no US court is designated to issue such a warrant...)
Now, one point at issue is collecting signals which are routed through US territory, and this is a sticky legal point. The routing of signals has legal significance, and the Fed gov't can claim jurisdiction via the interstate commerce clause over issues which involve signals crossing state lines. (Federal conspiracy charges due to in-state calls which were routed through another state, for a generic example.) So to apply the same principle writ large, signals coming through the US fall under our jurisdiction and thus could/should require a warrant to intercept in transmission. (though not necessarily in storage by a 3d party, like email...) However, I think this is somewhat absurd...if we're talking about intelligence gathering and a foreign-to-foreign call takes place with a routing through the US, I think it should be an obvious exception to a warrant. I think there's a legal distinction to be made between interstate and international commerce/communication.
If you're talking about collection overseas against a US person, yes, there is and should be a warrant requirement if you're going to break that person's REP, and you can obtain such a warrant in several different ways. That said, breaking their REP in an intelligence investigation overseas is obviously different than serving a warrant on someone in the US, and I have no issue with keeping it in a classified intelligence-centered court, or not notifying the subject of such a warrant, etc.
Basically, the Constitution enumerates the broad categories. You want to accuse me of something and arrest me, to take what I've got, deny me my rights, spy on me, search me or my effects? Get a warrant. Then we can talk. The point being that, unless you can prove to a disinterested third-party that things are ostensibly as you claim them to be, then you're SOL (as a presumed "authority" seeking to trample those rights). That's the deal.
Beyond the basics, I cannot say. I am neither an attorney nor international spymaster. Spying on people outside our borders or on people known to be non-citizens is one thing, and war's something else entirely. But I can say this: to, by default, cloak everything in darkness outside the view of the normal course of due process and the warrants process is to risk the loss of all rights to the biggest bully on the block at the time. And that is simply not what the U.S. people are about, as a People.
That being said, I appreciate the original post was about the NSA. Assuming we're speaking strictly of acts against non-citizens or people outside the country in which it can at least be reasonably articulated that such monitoring is justified, then little of this matters. But the moment we're speaking of citizens inside this country, then all the transparency/controls should, IMO, prevail, for all the reasons indicated.
Last edited by ccw9mm; July 4th, 2008 at 12:49 PM.