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Citizen Voices is a blog about election politics, written by people like you. Six San Diegans give their personal take on the issues, candidates and propositions.
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Last week, President Bush failed to extend temporary Foreign Intelligence Surveillance Act laws through Congress.
The way Bush sees it, the FBI will not be able to effectively intercept vital information, meaning Islamo-facists will be free to plan jihad, which will inevitably lead to another tragedy on the homeland, terror alerts will oscillate through the color wheel, and more civil liberties will be downgraded and sent off into obscurity. He paints a bleak portrait in bold strokes.
When Bush puts it that way, it reminds me of my craving for absolutes during law school. Ah, for an absolute…no balancing factors to consider, no “reasonable person standard” to analyze, no facts to consider. It’s a bright line rule - plain and simple, like dry toast and black coffee for breakfast.
Some law students regard the phrase “bright line rule” as a beacon of light – true and definitive. This is so because of the myriad exceptions that almost overwhelms many rules themselves.
One class I heard this favorite phrase was Criminal Procedure, where the Fourth, Fifth and Sixth Amendment’s interpretation in cases like Terry v. Ohio (the “stop and frisk” case), and Miranda v. Arizona (the right not to incriminate oneself after the police begin questioning), give character and structure to black-letter Constitutional law.
Add doctrines like “special needs,” (allowing the suspension of individual suspicion to conduct a search), and keeping the search and seizure laws straight is a mental workout. For good reasons, these laws don’t offer too many bright line rules.
Which is why I think the current Foreign Intelligence Surveillance Act (FISA) laws are a little funny, by which I mean, they’re totally screwy.
The original 1978 FISA laws (which Bush asked Congress to alter last year) were meant to oversee electronic eavesdropping against foreign agents operating inside the United, but that is not all these laws are doing today, thanks to Bush’s so-called “War on Terror.”
Today, in order to protect the U.S. from Islamic jihad, more American civilians, including those calling from the U.S. to relatives or friends living overseas, should have their phones tapped without a warrant explaining when or who is chosen.
On the one hand, FISA 2.0 (my own moniker) is funny because why would the FBI want to know what I’m saying to my cousin Ramon in Spain when there is no individual suspicion?
Ah, special needs doctrine would say there is an overriding governmental interest in this warrantless wiretap, absent any suspicion of wrongdoing on either end of the call. But here’s where FISA gets particularly side-splitting. The special needs doctrine cannot be used to gather general evidence for criminal investigations. Under established criminal case law FISA can’t be used to intercept calls unless there is a specific case the government is trying to make, and I gotta tell ya, the “War on Terror” just isn’t specific enough.
It’s a rare day when an exception yields a bright line rule, but the FISA rules begged for the boundary. I’ll be relieved if the House Democrats continue to stand firm on this one.
-Citizen Voices blogger Alma Sove has spent most of her life in San Diego and is currently attending law school.
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I’ll be relieved if the House Democrats stand firm on this too, but more surprised. This is one of those issues where I get really confused wondering why the Democrats wanted to be the majority party in Congress.
I get confused about what House Dems hoped to stand for once in the majority as well. I couldn’t get more than a pallid response when I’ve asked over the last year.
Alma,
Heres a dirty little secret - house and senate democratic leaders got on board with the “Bushies” when FISA use was initiated for the “war on terror”. And, the only sticking point to the bill right now is that the Democratic leadership wants telecommunications companies to volunteer phone record information (which would expose them to litigation and let the govt off the hook) instead of requiring them to provide those records (thereby inoculating them from litigation). But as you said, “there is no bright line rule”.
One last thing, I’m not sure about the wireless wiretapping of U.S. Citizens being so new and “wrong”.....in the eyes of the courts at least.
In both United States v. Brown, 484 F.2d 418 (5th Cir. 1973), and United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), the courts upheld warrantless wiretaps. In Brown, a US citizen’s conversation was captured by a wiretap authorized by the Attorney General for foreign intelligence purposes. In Butenko, the court held a wiretap valid if the primary purpose was for gathering foreign intelligence information.
In the United States v. Duggan, the defendants were members of the Irish Republican Army. 743 F.2d 59 (2nd Cir., 1984). They were convicted for various violations regarding the shipment of explosives and firearms. The court held that their compelling considerations of national security in the
distinction between the treatment of U.S. citizens and non-resident aliens.
In the United States v. Nicholson, the defendant moved to suppress all evidence gathered under a FISA order. 955 F.Supp. 588 (Va. 1997). The court affirmed the denial of the motion. There the court flatly rejected claims that FISA violated Due process clause of the Fifth Amendment, Equal protection, Separation of powers, nor the Right to counsel provided by the Sixth Amendment.
And Finally, In re Sealed Case, 310 F.3d 717, 742 (Foreign Intel. Surv. Ct. of Rev. 2002) the special court stated “[A]ll the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information . . . . 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.�
I don’t know, maybe it’s just me - but if I here a click on my phone while retrieving a nut roll recipe from my Aunt in Slovenia, I’m not going to sweat it.......