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When "Exclusive" Does Not Mean "Exclusive":

The Washington Post reports on a portion of an OLC memo -- just a sentence really -- concerning the Foreign Intelligence Surveillance Act (FISA) that reinterprets the word "exclusive" to mean something less.

A 1978 law appeared at first glance to be an impediment to using new procedures for such surveillance. It stated that the Foreign Intelligence Surveillance Act (FISA) provided the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral and electronic communications may be conducted."

But the administration did not want to follow FISA, because the law requires court approval. The administration has said that law could be a cumbersome obstacle in real-time efforts to intercept intelligence.

This created a quandary that then-Justice Department lawyer John C. Yoo resolved in the OLC memo. Until this week, members of the public did not know exactly what the memo said. But two Democratic senators who had read the classified version asked that a sentence in the memo be declassified, and this week they released the result:

The passage states that "[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading."

In short, in this context exclusive does not mean exclusive because Congress did not specifically rule out the alternative approach sought by the administration. . . .

The context of Yoo's statement is unclear, because the rest of the memo remains classified. . . .

The Justice Department told the senators it no longer relies on Yoo's FISA memo. "The 2001 statement addressing FISA does not reflect the current analysis of the department," wrote Brian A. Benczkowski, principal deputy assistant attorney general in the Office of Legislative Affairs.

He "respectfully" requested that if the senators "wish to make use of the 2001 statement in public debate," they refer to the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed, not merely its failure to rule out alternatives.

FantasiaWHT:
Wouldn't a much simpler work-around be to focus on the word "domestic" in the language?
5.23.2008 9:02am
ithaqua (mail):
"The passage states that "[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area -- which it has not -- then the statute must be construed to avoid [such] a reading.""

And if Congress *had* intended to restrict Presidential authority, the Act would be unconstitutional. Yoo wisely chose to sidestep the issue with an interpretation that maintained the validity of FISA. Good for him.
5.23.2008 9:38am
pireader (mail):
ithaqua wrote -- And if Congress *had* intended to restrict Presidential authority, the Act would be unconstitutional.

Care to offer some logic and analysis to support this rather sweeping statement?
5.23.2008 9:49am
PLR:
This created a quandary that then-Justice Department lawyer John C. Yoo resolved pretended did not exist in the OLC memo.

Not sure if this fixes it, but "resolve" is clearly not the right verb in that context, no matter what the classified version says.

Maybe there'll be a thread some day about this administration's laughably transparent metrics for classification.
5.23.2008 9:50am
Patrick216:
I don't understand the continued attempts to attack Yoo (and I'm referring to the article, not this post). Whether his memos were right or wrong, there is no serious evidence he acted in bad faith. He provided a plausible - even if a "stretch" - justification for necessary actions taken during a time of war, based on separation of powers principles.

As a side note, I would also add that I've been told Yoo's memos will prevent politically-motivated prosecutions of midgrade military officers and CIA and NSA managers for Gitmo and the warrantless wiretapping program. So while I fully expect Obama, if elected, will try to prosecute Rumsfeld and company for war crimes (unless Bush issues a blanket pardon, which I suspect he'll do), we won't have another Ollie North type guy get his underwear run up the flag pole for doing what had to be done.
5.23.2008 9:54am
Old33 (mail):
Congress: This is the exclusive means.

GWB: Well, you didn't say that applied to me.


This is why people hate lawyers.
5.23.2008 9:57am
J. F. Thomas (mail):
we won't have another Ollie North type guy get his underwear run up the flag pole for doing what had to be done.

What, deliberately break the law for the "greater good"?

You sir, are a fascist. You need to get a copy of the constitution and read it carefully. The President and the administration is not above the law.
5.23.2008 9:59am
Justin (mail):
"Whether his memos were right or wrong, there is no serious evidence he acted in bad faith. He provided a plausible - even if a "stretch" - justification for necessary actions taken during a time of war, based on separation of powers principles."

::giggle::
5.23.2008 10:08am
Anderson (mail):
there is no serious evidence he acted in bad faith

Patrick, that will work fine for those of us who haven't been paying attention; the rest of us know better.

And anyone who thinks that Col. North was "doing what had to be done" is, at best, ignorant of the facts. If you don't want to read a whole book on the subject, the relevant chapters in Lou Cannon's President Reagan will be helpful.

(Good bio, btw, that can help even a yellow-dog Democrat appreciate Reagan's strong points, w/o ignoring his weak ones.)
5.23.2008 10:15am
alkali (mail):
In other words, we should presume that when Congress passed the Foreign Intelligence Surveillance Act, it was not trying to regulate foreign intelligence surveillance in any way.
5.23.2008 10:19am
fnook (mail):
Why don't they just release the whole friggin memo!
5.23.2008 10:24am
PersonFromPorlock:
How would Yoo's reading, if we were to take it as Gospel, affect other laws which don't specifically mention the President?
5.23.2008 10:31am
SJE:
Alkali: "In other words, we should presume that when Congress passed the Foreign Intelligence Surveillance Act, it was not trying to regulate foreign intelligence surveillance in any way."

Perhaps is was meant to apply to the State Governments and citizens who regularly go before Federal judges to seek authorization to conduct foreign intelligence surveillance.

That, or that it was meant to apply to some other imaginary fourth branch of government. Dick Cheney?
5.23.2008 10:37am
cboldt (mail):
... sought to restrict presidential authority to conduct warrantless searches in the national security area


See Unites States v. United States District Court, 407 U.S. 297 (1972) ... the "Keith" case. It, on it's own, blows Yoo's opinion out of the water.
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The "restriction" on independent domestic snooping authority appears to be rooted in the Constitution, not depending on a statute for effect.
5.23.2008 10:41am
cboldt (mail):
the administration's current position, which pins the authority to choose non-FISA procedures on a law that Congress actually passed ...


A reference to the Protect America Act, which permits unrestricted acquisition and retention of all communications that are international in nature. Grabbing international communications is defined as "not surveillance" in the Protect America Act, and there is no obvious mechanism to subject that law to judicial test.
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Congress also aims to kick pending cases out of Court, via a "one time" waiver of the civil remedy contained in FISA at 50 USC 1810 (IIRC)
5.23.2008 10:46am
Connecticut Lawyer (mail):
Fantasia - You are correct, of course. Communications between persons located abroad and persons located in the US are international, i.e., foreign, communications, not domestic communications, which means communications solely between persons located within the United States.
5.23.2008 10:49am
M. Gross (mail):
ithaqua wrote -- And if Congress *had* intended to restrict Presidential authority, the Act would be unconstitutional.

Care to offer some logic and analysis to support this rather sweeping statement?


It's a long argument that's been covered in detail on this site some time ago, but the President possesses the authority to conduct foreign intelligence surveillance without Congressional oversight or limits (and outside the 4th Amendment.) Lower courts have held that this includes conversations that involve any non-citizen.

Thus it is somewhat debatable whether FISA is consitutional.
5.23.2008 10:49am
cboldt (mail):
Thus it is somewhat debatable whether FISA is consitutional.
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It's survived facial attack, multiple times.
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Interesting to me that the constitutionality of FISA can cut in either of two diametrically opposed directions, in application. It can be too restrictive as to presidential prerogative, authority and duty; or it can be too relaxed in permitting unsupervised snooping.
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I don't think there is a way to evaluate FISA absent an application context. OTOH, my opinion is that the PAA is too relaxed (unconstitutionally so) in permitting unsupervised snooping.
5.23.2008 10:59am
Jam:
Wow. A law that was passed by Congress and signed by a previous POTUS the current POTUS do not have to obey.

The USC is not violated if the law establishes the means on how the Executive branch carries its authorities. We do not have a King, on domestic or foreign affairs.
5.23.2008 11:27am
cboldt (mail):
-- Lower courts have held that this includes conversations that involve any non-citizen. --
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True. But the authority to snoop without oversight doesn't turn on the citizenship of the snoopee. See Humphrey (of the Truong case).
5.23.2008 11:39am
Elliot Reed (mail):
Jam—the cult of the Presidency has gone much further than it ought to. Why must they go on our currency, get a special holiday, receive a funeral worthy of an emperor, and, if particularly noteworthy, get their own little shrine on the Mall? In a free and democratic society, no part of the State should be receiving anything remotely like such adulation.
5.23.2008 11:47am
Adam J:
FantasiaWHT- not if they were trying to workaround FISA's application to purely domestic communcations... which I suspect is what they were doing. Of course, since the rest of the document is classified, it's hard to say.
5.23.2008 11:59am
CPDL:
Yoo's argument is reminiscent of those deployed (successfully, I might add) to limit the scope of Congress's attempts to limit habeas corpus.
5.23.2008 12:22pm
CPDL:
habeas corpus judicial review. Sorry.
5.23.2008 12:23pm
Oren:
A reference to the Protect America Act, which permits unrestricted acquisition and retention of all communications that are international in nature.
I will never understand why Bush did not ask Congress to amend FISA in early '02. Congress would have given him whatever he wanted and the program could go on legally. I would even forgive the initial post-9-11 violations of FISA if he promptly went to Congress to get the law fixed.
5.23.2008 12:25pm
MXE (mail):
You sir, are a fascist.

Dude, chill.

Yoo's interpretation does indeed seem...well...wrong. Can somebody explain why it's plausible at all, even as a stretch?
5.23.2008 12:44pm
Malvolio:
Didn't we have this conversation yesterday? That time, the subject was about New Hampshire constitution rather than FISA, but question was the same: does the law mean what it says or what we want it to say?

It isn't cricket to surreptitiously break a law just because you think, or claim to think, it's unconstitutional. Ask Oliver North (but then believe the opposite of what he says).
5.23.2008 12:58pm
Bruce Hayden (mail) (www):
In other words, we should presume that when Congress passed the Foreign Intelligence Surveillance Act, it was not trying to regulate foreign intelligence surveillance in any way.
That isn't what he said. The problem is, and always has been, that Congress was intruding in the area where the president's powers are at their highest. So, Yoo started with the president's plenary Article II powers in this area, and then applied fairly standard constitutional statutory analysis - that when you have a choice between interpreting a law so broadly that it is unconstitutional or more narrowly so that it passes constitutional muster, you pick the later.

Let me suggest that most of those who attack Yoo here start from the opposite point of view, that Congress is supreme here, regardless of Article II. And I would suggest put this debate on a different prong of the Youngstown concurrence.
5.23.2008 1:44pm
Elliot Reed (mail):
Also, it seems pretty odd that Yoo's job would be to find a "stretch." Since the rest of the memo is classified we don't know what type of memo it is but there's an enormous difference between being assigned to write a memo assessing the strength of the client's position and a memo describing the best arguments for the client's position. A lawyer who writes the second memo in response to a request for the first is just not doing his job. It looks like this is another case of Yoo taking his idiosyncratic theory of how the law "should" be interpreted and presenting it as settled law.
5.23.2008 1:49pm
Bruce Hayden (mail) (www):
Wow. A law that was passed by Congress and signed by a previous POTUS the current POTUS do not have to obey.
Let me see if I remember rightly - wasn't the president who signed it Jimmy Carter? The same Jimmy Carter who was just recently meeting with organizations officially considered terrorists by our government?

It always comes down here to whether a former president and Congress can bind the hands of the current president in the areas where his authority under the Constitution is at its greatest.
The USC is not violated if the law establishes the means on how the Executive branch carries its authorities. We do not have a King, on domestic or foreign affairs.
The problem was that the Administration believed that a strict reading of FISA would seriously endanger the country due to its cumbersome warrant procedures drafted at a time when our enemies were quite different. The drafters of FISA never envisioned operating in a digital world where frequent calls are automatically captured based on pattern matching and the like. Rather, it was drafted for 1970s technology where wire taps were individually installed and the Soviets and ChiComs were not moving their embassies around. So, a cumbersome warrant procedure for small numbers of warrants looked just fine to the drafters of FISA. Oh, and, it was reasonably simple to tap international calls outside the U.S. when FISA was drafted, and impossible to tap a sizable number (likely over half) of them today outside the U.S. (and thus moving the interception from 1801(f)(1) to (f)(2)).

So, the Administration (and Yoo) viewed the situation as imminent danger to this country, that the primary job of the president is to protect us from foreign enemies, that the power to do this is provided by Article II, and acted accordingly.
5.23.2008 1:58pm
Elliot Reed (mail):
It always comes down here to whether a former president and Congress can bind the hands of the current president in the areas where his authority under the Constitution is at its greatest.
Cite for the proposition that domestic surveillance is such an area?
The problem was that the Administration believed that a strict reading of FISA would seriously endanger the country due to its cumbersome warrant procedures drafted at a time when our enemies were quite different.
I think "purported to believe" would be more accurate. The State loves to claim that its power grabs are absolutely necessary to protect national security, but is not exactly 100% trustworthy on this point. As for those "cumbersome warrant procedures," there's a simple and straightforward remedy for that. See U.S. CONST. Art. I Sec. 7.
5.23.2008 2:07pm
Andrew J. Lazarus (mail):

I will never understand why Bush did not ask Congress to amend FISA in early '02.

Because part of the fun of being a wartime President (and VP) is accumulating power. On that matter, the Bushies don't believe in sharing, no matter what the Constitution or existing law might say. (See: Padilla, Hamdan, etc.)

There's also, of course, the possibility that Congress might not approve of a blanket program of Stasi-style universal wiretapping without warrants, which is what I imagine we'll discover when the last rock is turned over at the communications centers.
5.23.2008 2:41pm
Oren:
The problem was that the Administration believed that a strict reading of FISA would seriously endanger the country due to its cumbersome warrant procedures drafted at a time when our enemies were quite different. [SNIP] So, the Administration (and Yoo) viewed the situation as imminent danger to this country, that the primary job of the president is to protect us from foreign enemies, that the power to do this is provided by Article II, and acted accordingly.
No, his job was to follow the law until such time as Congress can amend or repeal FISA. If he felt that the danger was truly imminent, he can violate the law on an emergency basis pending review/amendment/repeal by Congress. Such a violation would only be proper for long enough to allow Congress to deliberate.

In fact, the Constitution is pretty clear that it is the President's job to see to it that the laws are faithfully executed. I'm willing to give him some leeway in an emergency but, ultimately, Congress makes the rules and President follows them.
5.23.2008 4:06pm
OrinKerr:
I will never understand why Bush did not ask Congress to amend FISA in early '02. Congress would have given him whatever he wanted and the program could go on legally.

I'm not so sure. Congress certainly didn't give up everything in the Patriot Act; DOJ initially gave Congress a pretty modest piece of legislation, and even then Congress was only on board with the relatively few controversial provisions removed. Then, in the months following, even the modest parts of the Patriot Act were misconstrued beyond belief in the media. Given that, I'm not so sure Congress would have been on board, although of course it would have depended on how it was raised.
5.23.2008 4:12pm
Oren:
Orin, I would (have) construe(d) Congressional refusal to amend FISA to bring the program within its four corners as a repudiation of the program's necessity.

At any rate, I think my Constitutional argument stands even without addressing the hypothetical actions of Congress -- if the President doesn't like the law, let him ask Congress to amend it.

Then, in the months following, even the modest parts of the Patriot Act were misconstrued beyond belief in the media.
Then again, some of that outrage has been borne out factually. Doe v. Ashcroft certainly vindicates early criticisms of NSLs, the DOJ-IG's report on their misuse doesn't help either.
5.23.2008 5:28pm
Waldensian (mail):

Yoo's interpretation does indeed seem...well...wrong. Can somebody explain why it's plausible at all, even as a stretch?

No matter what you may think of Yoo as a person, etc., it's becoming safer and safer to say that.... he's a crappy lawyer. If an associate wrote a line like that in a brief, I would conclude that he/she was some kid of idiot.
5.23.2008 9:01pm
Kazinski:
In Re Sealed Case the FISA court of review interprets the law the same way Yoo does:

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.

That's the highest court that has reviewed the matter. Yoo has an obligation to interpret the statute in such a way as it is constitutional. If he interprets it in such a way that Congress is restricting the Presidents authority to conduct foreign intelligence surveillance, whether domestic or internationally then he would be construing the statute to reach an unconstitutional result.

Unless someone wants to point me to an operative opinion that says FISA can trump the presidents constitutional authority.
5.24.2008 12:54am
cboldt (mail):
In Re Sealed Case the FISA court of review interprets the law the same way Yoo does:
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A careful reading shows that is not exactly true.

In re: Sealed Case No. 02-001 (FISCR - 2002)

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.


vs. Mr. Yoo ...

"[u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area ..."


Yoo has an obligation to interpret the statute in such a way as it is constitutional.
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Mr. Yoo would have found United States v. United States District Court, 407 U.S. 297 (1972) (the "Keith" case) to be helpful in composing his analysis of the boundaries of executive authority in snooping in the national security area.
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Back in December 2005, I predicted that the debate relating to unsupervised executive snooping would eventually get around to the crux of defining "foreign intelligence information" in the context of surveillance of people situated in the United States. Meanwhile, plenty of people will attempt the diversion of making national security equivalent to and synonymous with and foreign intelligence.
5.24.2008 8:06am
Jam:
1) Where in Article 2 is the POTUS granted authority to violate the law?

2) Where is found that silence indicates power?

The POTUS' "job was to follow the law until such time as Congress can amend or repeal FISA. If he felt that the danger was truly imminent, he can violate the law on an emergency basis pending review/amendment/repeal by Congress. Such a violation would only be proper for long enough to allow Congress to deliberate."

That is why every POTUS seeks to establish a perennial "national emergency" and declares that these uS are always under constant "imminent threat," so as to maintain the POTUS' "at its greatest" power.
5.24.2008 8:44am
Apodaca:
Kazinski:
Unless someone wants to point me to an operative opinion that says FISA can trump the presidents constitutional authority.
Which opinion, of course, the President would have to construe so as to avoid reaching an unconstitutional result.
5.24.2008 8:52am
cboldt (mail):
-- I will never understand why Bush did not ask Congress to amend FISA in early '02. --
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Following the lead suggested by administration comments relating to the NYT publication of news about warrantless surveillance outside the bounds of FISA, I take the underlying rationale as favoring public ignorance of the policy (law) that describes the scope of unsupervised surveillance. Awareness of the TRUE government policy and practice of unsupervised snooping will tip off the public, part of which is terrorists, and they will find alternative means of communication in order to avoid detection.
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Looked at another way, that there is value in a surveillance law that DECEIVES or misleads the public into a false belief that government surveillance is controlled by the supervision of an independent branch.
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Obviously, those comments aren't meant to be "all or nothing." The real situation covers the extent of unsupervised surveillance, the uses of the information gained, when and how the Courts do become involved, etc. But the general point of avoiding Congress and publicity is to use the law (as it aims to express government policy) as a deceptive device, rather than an informative one.
5.24.2008 12:29pm
Oren:
Unless someone wants to point me to an operative opinion that says FISA can trump the presidents constitutional authority.
Nice leading question. Of course a legislative act cannot trump the president's constitutional authority.

Why don't you point me to a real opinion (an Art III court, not some rubber-stamping ersatz) that establishes that surveillance that potentially captures domestic intelligence falls squarely within the President's authority?
5.24.2008 2:13pm
Oren:
^^ Addendum: I should make it clear that the President has inherent authority to initiate domestic surveillance (insofar as it comports with the Constitution -- the TSP does not, IMO, violate the 4A) without Congressional authorization. This is considerably different than what has been claimed: the authority to act in direct contravention of explicit Congressional action (what might be called plenary authority).
5.24.2008 2:16pm
Oren:
cboldt, you are correct that having laws that says one thing while secretly doing something else would be an advantage in the GWOT. Unfortunately, I think it's an advantage we're unable to take while still preserving the character of our government.

The ultimate irony would be, of course, if we ended up destroying our form of government in order to save it.
5.24.2008 2:25pm
Kazinski:
cboldt,
If by "national security" Yoo was referring to surveillance on domestic targets that were not part of a foreign organization then Keith would apply. But that is not what Yoo was referring to, so Keith does not control.

Apodaca,
Which opinion, of course, the President would have to construe so as to avoid reaching an unconstitutional result.

That is nonsensical, show me the case where the Administration has refused to follow a court decision.

Oren,
Any foreign intelligence surveillance can potentially capture "domestic intelligence", that is not the standard, the standard is that the purpose of the surveillance is foreign intelligence.
5.24.2008 2:28pm
Andrew J. Lazarus (mail):
On the basis of a fragmentary and redacted release, Kazinski is able to conclude

If by "national security" Yoo was referring to surveillance on domestic targets that were not part of a foreign organization then Keith would apply. But that is not what Yoo was referring to, so Keith does not control.
Can you point to evidence in the record that when Yoo says "national security" he refers only to
foreign targets?

The big secret in this case is the scope of the program. From the desperate attempts to hide that, I suspect we'll discover that Bush held with warrantless wiretapping of all calls foreign or otherwise.
5.24.2008 2:56pm
Oren:
Kazinksi, in order to qualify as foreign it's not the purpose but rather the safeguards in place to ensure that domestic conversations (excepting those that are shown to be by agents of a foreign power) are not intercepted.

I've always argued that the TSP was an eminently reasonable program that, with the proper modification to FISA and some basic oversight, would be a very useful tool.
5.24.2008 3:01pm
Mary Katherine Day-Petrano (mail):
"That's the highest court that has reviewed the matter. Yoo has an obligation to interpret the statute in such a way as it is constitutional." ---->

Speaking of wiretapping under the statute, is the FISC ensuring under their Orders that disabled Americans with hearing and speech impairments, when they are wiretapped for potential use in a legal context, are being wiretapped with provision of the CART realtime such person require?

If not, how could any such wiretapping transcript EVER be used to support a warrant, indictment, or trial?
5.24.2008 3:15pm
cboldt (mail) (www):
-- Kazinski asserts: so Keith does not control --
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The "Keith" case may not control, but it presents the authority of SCOTUS is the broad area of unsupervised surveillance to maintain national security.
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If Yoo is justifying ALL unsupervised snooping on the justification that it's necessary to maintain national security (without context that narrows the range of unsupervised snooping), then he is advocating unsupervised snooping outside the 4th amendment boundary drawn in SCOTUS's "Keith" decision.
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The case you cite as authority to support Yoo, the FISCR in In Re: Sealed Case No. 02-001 also, in dicta, describes a boundary that, if crossed by unsupervised executive snooping, would represent a violation of the 4th amendment.
5.25.2008 2:12pm
cboldt (mail) (www):
-- when Yoo says "national security" he refers only to foreign targets? --
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The delimeter isn't "foreign targets." It's foreign intelligence. By current judicial opinions, "foreign intelligence" could be held IN the US, and could be held in the US by a US citizen.
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See "Humphrey" of the Truong case, and United States citizen/Soviet spy Aldrich Ames, whose house was bugged without a warrant.
5.25.2008 2:34pm
Oren:
Ames was an agent of a foreign power . . .
5.25.2008 10:51pm
Jam:
If by surveillance it is meant watch where people go and do in the public areas, fine. The gov can do that. But the moment that the gov gets inot wiretapping, reading of mails, entering houses, those are not surveillance. Those are activities that require search warrants and fall under the 4th. Not that the USC granted the authority to the Feds to begin with. According to some, I guess, we are East Germans now. Scary.
5.26.2008 9:02am