FISA, telco immunity fight fade with economy

(THIS IS A SEGMENT FROM MY COMMENTARY TITLED "THE FOG OF FISA", WHICH WAS PRINTED ON OPEDNEWS,COM ON MARCH 27, 2008)

The defenders of the Terrorist Surveillance Program are trying to insulate the telecommunication providers that assisted with the illegal Terrorist Surveillance Program from any damage that would ensue if it is ultimately determined in Federal Court that these telecommunication providers did not receive adequate legal authorization from the Bush Administration before these telecommunication providers released access of customer's electronic communications and other information to the Federal government. The teary-eyed homily about the telecommunication providers merely doing their patriotic duty lost some of its emotional appeal when it was revealed in January 2008 that one of these telecommunication providers temporarily pulled the plug on surveillance due to a delay in payment by the government. Official and unofficial spokespersons for the Bush Administration have issued dire warnings that the telecommunication providers that assisted with the Terrorist Surveillance Program will not be willing to co-operate with legal electronic surveillance if these telecommunication providers are not granted immunity from approximately 40 lawsuits that have been filed against them. To help simplify the simple-minded argument advanced by defenders of the Terrorist Surveillance Program, we (through our elected representatives in Congress) are being requested to grant retroactive legal and financial immunity to the telecommunication providers for illegal activity in which they may have engaged by assisting with the Terrorist Surveillance Program, and in return these telecommunication providers will agree to honor legal court-ordered warrants. But, heaven forfend, if retroactive legal immunity is not granted for illegal activity in which the telecommunication providers may have engaged by assisting with the Terrorist Surveillance Program, there is a veiled threat that these telecommunication providers will engage in additional illegal activity by refusing to honor legal court-ordered warrants. Now that certainly sounds reasonable. But seriously folks, the Bush Administration is primarily concerned with preventing the public and potential plaintiffs from discovering the extent of the illegal activity in which Bush Administration officials were engaged, and this yeoman effort to provide immunity for the telecommunication providers that assisted with the Terrorist Surveillance Program is just the Bush Administration's method of enlisting Congress in the obstruction of justice.

Some people have commented that the telecommunication providers that assisted with the Terrorist Surveillance Program may not have done anything illegal based on interpretation of Title 18 U.S.C. Sec. 2511(2)(a)(ii)(B) or Title 18 U.S.C. Sec. 2702(b)(8) and Title 18 U.S.C. Sec. 2702(c)(4). Although the complete answer is not known for certain, testimony to the Senate Judiciary Committee on May 15, 2007 by former Deputy Attorney General James Comey, and testimony to the Senate Judiciary Committee on October 2, 2007 by former Assistant Attorney General (for the Office of Legal Counsel) Jack Goldsmith, indicates that the certifications by the Justice Department to the telecommunication providers did NOT meet the requirements outlined in Tile 18 U.S.C. Sec. 2511(2)(a)(ii)(B), at least for most of the period during which the Terrorist Surveillance Program was operative. The Bush Administration has promulgated some tortured legal rationales, but it is a legal maxim that words in a legal statute have their plain meaning unless the statute provides for an alternative meaning. The potentially applicable exceptions to prohibited disclosures in Title 18 U.S.C. Sec. 2702 are specifically for life-threatening emergencies, and it would be impossible to establish that the necessary emergency conditions existed for all of the communications that were intercepted by the intelligence agencies throughout the duration of the Terrorist Surveillance Program.

After the expiration of the Protect America Act of 2007 (PAA of 2007) in February 2008, Attorney General Mukasey and Director of National Intelligence McConnell sent a letter to Silvestre Reyes (D-Texas), the Chairman of The House Intelligence Committee, in which Mr. Mukasey and Mr. McConnell stated (on page 4): "You imply that the emergency authorization process under FISA is an adequate substitute for the legislative authorities that have lapsed. This assertion reflects a basic misunderstanding about FISA's emergency provisions. Specifically, you assert that the National Security Agency (NSA) or the Federal Bureau of Investigation (FBI) 'may begin surveillance immediately' in an emergency situation. FISA requires far more, and it would be illegal to proceed as you suggest. Before surveillance begins, the Attorney General must determine that there is probable cause that the target of the surveillance is a foreign power or an agent of a foreign power and that FISA's other requirements are met." This letter from two senior officials in the Bush Administtration unwittingly acknowledges that it is illegal to intercept electronic communications outside of the guidelines legislated under FISA. Therefore, as critics of the Terrorist Surveillance Program already knew, the President acted illegally for at least five years by circumventing FISA via the Terrorist Surveillance Program, and probably the President is currently engaging in illegal activity because it is unlikely that all of the current electronic surveillance is within the guidelines legislated under FISA (notwithstanding those authorizations which legally can extend for up to one year after the expiration of the PAA of 2007).

(THIS IS ANOTHER SEGMENT FROM MY COMMENTARY TITLED "THE FOG OF FISA", WHICH WAS PRINTED ON OPEDNEWS.COM ON MARCH 27, 2008)

In the case of UNITED STATES v. CURTISS-WRIGHT EXPORT CORP., the Supreme Court decided that the President's proclamation preventing certain arms sales was based on a joint resolution passed by Congress, and that this joint resolution of Congress had been a legitimate exercise of the function of Congress. The Supreme Court decision in the case of YOUNGSTOWN SHEET & TUBE CO. v. SAWYER (1952) was not contrary to the decision in the case of UNITED STATES v. CURTISS-WRIGHT EXPORT CORP. (1936) because the Supreme Court could have ruled in the case of UNITED STATES v. CURTISS-WRIGHT EXPORT CORP. that the President had acted legally pursuant to a joint resolution passed by Congress without resorting to arguments about the President's implied powers. Section 8 of Article I of the Constitution gives Congress the power "to regulate commerce with foreign nations," and Section 8 of Article I of the Constitution gives Congress the power to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested b this Constitution in the government of the United States, or in any department or officer thereof." Although I may not be qualified to disagree with some of the statements made in the case of UNITED STATES v. CURTISS-WRIGHT EXPORT CORP. about the extent of the President's implied powers, it seems that it was ill-advised for the Supreme Court to give such great weight to powers that it was so incapable of defining, and it seems that the Supreme Court was guilty in this case of violating the cardinal sin of issuing an opinion that was more broad in scope than was necessary based on the facts.

Defenders of the Terrorist Surveillance Program have never argued that it was the only way to obtain necessary foreign intelligence, but rather the argument has been that FISA is too cumbersome for the task at hand. If the telecommunication providers that assisted with the Terrorist Surveillance Program instead had refused to co-operate because the requests from the Government were not accompanied by FISA warrants, and if the President had seized operation of these telecommunication providers because litigation would have been too cumbersome in relation to the surveillance needs, the President soon would have found himself being slapped upside the head in Federal Court by these telecommunication providers. In the case of YOUNGSTOWN SHEET & TUBE CO. v. SAWYER, the Supreme Court ruled that the President had acted illegally and contrary to the Constitution, and the majority opinion in this case was that the President had acted contrary to the provisions that were afforded to him in the Taft-Hartley Act. Through the FISA legislation, Congress has furnished the President with a legal means to acquire foreign intelligence via surveillance, and the President does not have the authority to engage in surveillance outside of the FISA law to the extent that such surveillance violates the Fourth Amendment rights of U.S. citizens and other legal residents. Although the President has supremacy with respect to foreign policy, the President has no inherent authority to take actions which are contrary to the Constitution just because a state of war exists. From a practical standpoint, the Constitution is whatever the Supreme Court says it is, but an assertion by the President that he is entitled to engage in massive electronic surveillance without warrants and without probable cause, involving citizens and other legal residents of the United States, is contrary to the plain meaning of the Fourth Amendment to the Constitution even if FISA is rewritten to authorize such surveillance and even if the Supreme Court were to uphold such a revision of FISA.

Critics of the President's Terrorist Surveillance Program should not hesitate to admit to some trepidation about the prospect of the Supreme Court ruling on this issue because the majority on the current Court is too deferential to the security needs of the Government and is much less concerned with the Fourth Amendment rights of U.S. citizens and other legal residents. It is not characteristic of the Bush Administration to take any action which is or could be detrimental to the business interests that hold our Government captive, but if the President's assertion of his alleged inherent powers were in conflict with the business interests that pull the President's strings, it is likely that few of the President's current supporters would acknowledge that the President has the inherent authority as Commander-in-Chief to take such action, and it is doubtful that such action would be viewed favorably by any Federal Courts. Law Professor Robert Turner dismisses the case of YOUNGSTOWN SHEET AND TUBE CO. v. SAWYER as not being relevant to the issues in the FISA debate because this case "involved a taking of private property within the United States without due process of law--a clear violation of the Fifth Amendment." Therefore, Mr. Turner clearly thinks that the Government's need to acquire foreign intelligence supersedes the Fourth Amendment rights of U.S. citizens within the U.S., but Mr. Turner also thinks that the Government's need to sustain a military action in Korea should not have encroached on the Fifth Amendment property rights of business owners. Mr. Turner also refers to examples of situations in which other Presidents (including Woodrow Wilson and Franklin Roosevelt) engaged in surveillance without warrants during wartime, but this is the classic "ten wrongs make a right" argument. Whenever someone supports his/her argument by claiming that President Clinton did it too, it signals that the argument is probably without much foundation in logic.