In article <telecom25.16.11@telecom-digest.org>, davidesan@gmail.com
says:
> There was a court set up to issue warrants. That court was bypassed.
> To me that is not a balance of power issue, but a legal issue. The
> constitution guarantees certain rights. By not going to the court to
> get the search warrant then the Executive Branch bypassed the
> Constitution that they have sworn to uphold.
The FISA courts were set up during the Cold War era, when there was no
immediate threat of attack upon the U.S., and there was the general
opinion that any such attacks would be preceded by sufficient warning
signs that the need for an "instant warrant" to record a conversation,
which would be used in a court case of some sort, was not deemed
necessary. The U.S. is now in a state of war, albeit against an
extra-national para-military organization instead of a recognized,
geographically based government.
Let me pose the problem: We have a recognized leader of such an extra-
national group, which has publically declared "war" against the U. S.
using (among other methods) terror attacks against civilian targets --
let's call him Jafar al-Vizier -- who is currently residing in a foreign
country, say, the Sultanate of Agrabah. The NSA is monitoring, legally,
all of his conversations -- landline, wireless, satellite, Internet, etc.
One day, al-Vizier makes a phone call from Agrabah to a previously
unknown associate -- let's call him Iago Parrot -- who is located in the
U. S. Under your "no wiretaps without a court order" view of the world,
the NSA would have to immediately stop monitoring the call, and initiate
proceedings for a FISA warrant, which will take days to obtain, if not
weeks.
Now the call from al-Vizier to Parrot may have been perfectly innocent
("hi, how's the kids, etc.") -- or it could have been a triggering
call to a "sleeper" cell to initiate an attack plan on a U. S. target,
potentially killing or injuring hundreds or thousands. In either
situation, since the conversation may have lasted only a few minutes,
and it's likely that al-Vizier may never call Parrot again, the
opportunity to determine the nature of the call is lost, and the need
for a wiretap warrant is moot.
However, since this is a MILITARY situation, not a civil one, this
isn't a 4th Amendment "unreasonable search and seizure" sitation, but
an Article II, section 2 situation, with the President acting as
commander in chief of the military, authorizing a military operation
to prevent an attack on the country. In that capacity, the NSA *can*
continue to monitor al-Vizier's call to Parrot, and, if it's
determined to be of no military value, discard the recordings, or, if
it IS of military value, pass the information to the appropriate
military commanders and/or domestic defense organizations (FBI, local
law enforcement, etc.) to take the appropriate defensive actions.
There is no intent to use the information gathered for legal
proceedings, only to guide military operations.
While I've posed what seems like a hypothetical, it's not. It's
actually happened at least twice. Once since 9/11 (the Brooklyn
Bridge bomb plot), and once during WW II (foiling a German commando
raid on the East coast). In either case, I doubt that the vast
majority of Americans would consider the monitoring of the
conversations of persons intent on attacking the U. S., whether they
happen to be inside or outside of the country, to be "unreasonable".
And there is historical precedence for the U. S. engaging in military
action against an extra-national para-military organization: The
Barbary "pirates", during the years 1801-1815.
As a side note, it is the 1796 treaty with these "pirates" that
supposedly contains the phrase "the government of the United States of
America is not in any sense founded on the Christian Religion", which
is often used to justify all manner of elimination of religion from
the public sphere. In fact, that phrase does not appear in the
original Arabic version of the treaty, but was inserted in a
translation by Joel Barlow, the U. S. Consul General at Algiers. A
discussion of the problems with the Barlow transalation is available
from the Avalon Project of the Yale Law School, at
http://www.yale.edu/lawweb/avalon/diplomacy/barbary/bar1796n.htm
Michael Chance
Michael Chance (mchance@swbell.net)