FISA, Telecommunication Companies & The Bush Administration

FISA, Telecommunication Companies & The Bush Administration
2008© blackops. All rights reserved.

President Bush has announced that he would veto a bill that does not provide immunity for telecommunication companies that allowed the government to conduct electronic surveillance on its customers without a court order (Associated Press, 2008). Republican members of Congress have stated that telecommunication companies may refuse to cooperate if subjected to lawsuits.“’We cannot conduct foreign surveillance without them. But if we continue to subject them to billion-dollar lawsuits, we risk losing their cooperation in the future,’ said Rep. Lamar Smith, R-Texas.” (Associated Press, 2008). It must be asked then, if telecommunication companies allowed the government to conduct electronic surveillance in a way that is consistent with the law, why would they need immunity? There would be no fines. There would be no need for immunity. This leads to the following hypotheses:



To determine which hypothesis is correct, this essay will examine the background on electronic surveillance through Supreme Court decisions and electronic surveillance laws. It will also examine the Bush Administration’s use of electronic surveillance through court documents, government documents, and news reports.

BACKGROUND ON ELECTRONIC SURVEILLANCE

The Fourth Amendment states:



In Katz v. United States, 389 U.S. 347 (1967), Justice Stewart makes it clear that the Fourth Amendment applies not only to tangible things, but to conversations as well (id at 353).

At issue in the case was the listening and recording of a phone call made from a phone booth in which betting information was transmitted across state lines in violation of 18 U.S.C. § 1084. The surveillance was done from outside the phone booth and without a warrant. It was determined that recording conversations without physical intrusion is in violation of the Fourth Amendment (id).

In delivering the opinion of the Court, Justice Stewart declared that “…searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well delineated exceptions.” (foot note omitted) (id at 357). The Government argued that an exception should be made to allow for surveillance without prior judicial approval. Citing Beck v. Ohio 379 U.S. 89, 96, Justice Stewart responded, “Omission of such authorization ‘bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification for the… search, too likely to be subtly influenced by the familiar shortcomings of hindsight judgment.’” (id at 358). The Court overturned the conviction of the petitioner, obtained through improper procedures.

Addressing the need for authorizing wiretaps, Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510 et seq.) (Title III) allowing warrants for wiretaps for law enforcement purposes http://www.fas.org/sgp/crs/intel/m010506.pdf">(Bazan & Elsea, 2006). Title III was primarily for domestic law enforcement, but did have a provision (18 U.S.C. § 2511(3)) for national security:



The government relied on § 2511(3) in United States v. United States Dist. Ct., 407 U.S. 297 (1972) to exempt itself from prior judicial approval, contending that “in excepting national security surveillances from the Act’s warrant requirement, Congress recognized the President’s authority to conduct such surveillances without prior judicial approval.” (id). In that case, three defendants were charged with conspiring to destroy, and one of them destroying, government property. The surveillance used to apprehend the defendants was conducted without a warrant, but an affidavit from the Attorney General had stated that he approved the wiretaps for the purpose of “gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.” (id).

Refuting the Government’s claim of authority, Justice Powell stated, “Section 2511(3) certainly confers no power… It merely provides that the Act shall not be interpreted to limit or disturb such power as the President may have under the Constitution. In short, Congress simply left presidential powers where it found them.” (id at 303).

Justice Powell noted the lack of evidence of involvement by a foreign power in the Attorney General’s affidavit (id at 308, 309). Operating under the pretense of protecting national security, Justice Powell warned, the Government may abuse its power by preventing political dissent:

The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society (id at 314).

By taking upon itself the role of a “neutral and detached magistrate” in addition to investigator and prosecutor, Justice Powell cautioned, “Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch.” (id at 317) adding “…unreviewed executive discretion may yield too readily to pressures to obtain incriminating evidence and overlook potential invasions of privacy and protected speech.” (id).

The Government argued that the requirement of prior judicial review to obtain a warrant

would create serious potential dangers to the national security and to the lives of informants and agents…Secrecy is the essential ingredient in intelligence gathering; requiring prior judicial authorization would create a greater ‘danger of leaks…because, in addition to the judge, you have the clerk, the stenographer and some other officer like a law assistant or bailiff who may be appraised of the nature’ of the surveillance (id at 319).

The Court refused this claim, stating that security concerns could be satisfied through proper administrative measures (id at 321).

The Court suggested Congress might consider creating legislation to apply to domestic security surveillance, recognizing that domestic intelligence gathering for national security may not be as precise as for standard law enforcement (id at 322). However, government interests and civil rights could be balanced with reasonable procedures (id at 323).

Following the revelation by the Church Committee of serious abuses of electronic surveillance for national security purposes, the Senate Judiciary Committee enacted the Foreign Intelligence Surveillance Act of 1978 (FISA) http://www.fas.org/sgp/crs/intel/m010506.pdf">(Bazan & Elsea, 2006). The bill was “designed … to curb the practice by which the Executive Branch may conduct warrantless electronic surveillance on its own unilateral determination that national security justifies it.” http://www.fas.org/sgp/crs/intel/m010506.pdf">(Bazan & Elsea, 2006).. The Senate Judiciary Committee made clear the intent of Congress to accommodate the President’s use of an inherent constitutional power:

The basis for this legislation is the understanding – concurred in by the Attorney General – that even if the President has the “inherent” constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of this authority by legislating a reasonable warrant procedure governing foreign intelligence surveillance. http://www.fas.org/sgp/crs/intel/m010506.pdf">(Bazan & Elsea, 2006).

Section 2511 of Title III was changed, removing the section pertaining to surveillance executed according to the “constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack” and inserted in its stead § 2511(2)(f), which made Title III and FISA the exclusive means to authorize electronic surveillance within the United States http://www.fas.org/sgp/crs/intel/m010506.pdf">(Bazan & Elsea, 2006). This was done to “put[] to rest the notion that Congress recognizes an inherent Presidential power to conduct such surveillances in the United States outside of the procedures contained in chapters 119 and 120 .” http://www.fas.org/sgp/crs/intel/m010506.pdf">(Bazan & Elsea, 2006, quoted from S. Rep. No. 95-604(I), at 63 (1978)).

While Title III dealt with electronic surveillance from a law enforcement standpoint, requiring a more stringent standard to meet Fourth Amendment guaranties, i.e. a showing of probable cause to believe that the target of the surveillance has committed, is committing, or is about to commit a crime, the FISA standard is lower, requiring a showing of probable cause to believe that the target of the surveillance is a foreign power or an agent of a foreign power (Bazan & Elsea, 2006). This requirement in FISA was removed briefly by the USA PATRIOT Act following the terrorist attacks of September 11, 2001 http://www.fas.org/sgp/crs/intel/m010506.pdf">(Bazan & Elsea, 2006).

FISA provides a few exceptions to the warrant requirement to conduct electronic surveillance. 50 U.S.C. § 1802 provides for electronic surveillance of foreign powers without a court order upon Attorney General certification. (This certification, in writing and under oath, states that “the electronic surveillance is solely directed at means of communications used between or among foreign powers or on property or premises under the open and exclusive control of a foreign power where ‘there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party’ and minimization procedures are put in place.” http://www.fas.org/sgp/crs/intel/m010506.pdf">(Bazan & Elsea, 2006). 50 U.S.C. § 1805(f) provides for emergency authorization of electronic surveillance for up to 72 hours while a warrant is being procured from a FISA court judge. 50 U.S.C. § 1811 provides for electronic surveillance without a court order for 15 days following a declaration of war by Congress. It is important to note that the Authorization to Use Military Force (AUMF) issued by Congress after the terrorist attacks of September 11, 2001 did not constitute a formal declaration of war.

ELECTRONIC SURVEILLANCE AND THE BUSH ADMINISTRATION

While it would seem that the terrorist attacks of September 11, 2001 would be the obvious place to start when discussing electronic surveillance under the Bush Administration, allegations made by former Qwest Communications International CEO Joseph P. Naccio and a statement made by Attorney General Michael Mukasey demand attention.

QWEST COMMUNICATIONS

In May 2006, USA TODAY reported that the three telecommunication carriers, AT&T, Verizon, and BellSouth had cooperated with the National Security Agency to secretly amass a database of phone call records of tens of millions of Americans (Cauley, 2006). The information was then analyzed to detect calling patterns in an effort to thwart terrorism. Following the reporting of this story, Mr. Nacchio’s attorney, Herbert Swan, released a statement that said the government had approached Qwest Communications to turn over customers’ calling records:

Mr. Nacchio made inquiry as to whether a warrant or other legal process had been secured in support of that request. When he learned that no such authority had been granted and that there was a disinclination on the part of authorities to use any legal process, including the Special Court which had been established to handle such matters, Mr. Nacchio concluded that these requests violated the privacy requirements of the Telecommunications Act. (Nakashima & Eggen, 2007).

Mr. Nacchio was convicted in April 2007 of 19 counts of insider trading, selling shares of Qwest stock before the value dropped.

In October 2007, The Rocky Mountain News, The Washington Post, and The New York Times reported that in court filings made by Mr. Naccio, the National Security Agency had approached Qwest Communications to turn over customer’s call records on February 27, 2001, nearly seven months before the terrorist attacks (Burnett & Smith, 2007, Nakashima & Eggen, 2007, Shane, 2007).

“’The Nacchio materials suggest that the NSA had sought telco cooperation even before 9/11 undermines the primary argument for letting the phone companies off the hook, which is the claim that they were simply acting in good faith after 9/11,’ said Kevin Bankston, a staff attorney for the Electronic Frontier Foundation, a civil liberties group.” (Vuong, 2007).

In return for cooperating, Mr. Naccio asserts, Qwest Communications would receive lucrative government contracts (Burnett & Smith, 2007, Nakashima & Eggen, 2007, Shane, 2007).

In a May 25, 2007 order, U.S. District Court Judge Edward W. Nottingham wrote that Nacchio has asserted that ‘Qwest entered into classified contracts valued at hundreds of millions of dollars, without a competitive bidding process and that in 2000 and 2001, he participated in discussion with high ranking representatives concerning the possibility of awarding additional contracts of a similar nature.’ He wrote, ‘Those discussions led him to believe that would award Qwest contracts valued at amounts that would more than offset the negative warnings he was receiving about Qwest’s financial prospects.’” Nakashima & Eggen, 2007.)

Mr. Naccio’s conviction, he contends, was retaliation for refusing to cooperate with the government (Burnett & Smith, 2007, Nakashima & Eggen, 2007, Shane, 2007).

U.S. District Judge Edward W. Nottingham would not permit the classified information about the contracts into the court, thereby sinking Mr. Nacchio’s retaliation defense (Burnett & Smith, 2007. In March 2008, a federal appeals court overturned the 19 insider trading convictions after concluding that the trial judge improperly excluded expert testimony that would have helped Mr. Nacchio advance his defense (Johnson, 2008).

ATTORNEY GENERAL MICHAEL MUKASEY

On March 27, 2008, Attorney General Michael Mukasey, speaking at the Commonwealth Club in defense of the Bush Administrations surveillance program and proposing changes to FISA, made the statement that before the 2001 terrorist attacks

“We knew that there had been a call from someplace that was known to be a safe house in Afghanistan and we knew that it came to the United States. We didn’t know precisely where it went. You’ve got 3,000 people who went to work that day, and didn’t come home, to show for that.” (Egelko, 2008).

In a letter to Attorney General Mukasey from Rep. John Conyers, Jr., Chairman of the House Judiciary Committee; Rep. Jerry Nadler, Chairman of the Subcommittee on the Constitution, Civil Rights and Civil Liberties; and Rep. Bobby Scott, Chairman of the Subcommittee on Crime, Terrorism and Homeland Security (hereinafter “Conyers Letter”), Rep. Conyers responds to Attorney General Mukasey’s statement:

This statement is very disturbing for several reasons. Initially, despite extensive inquiries after 9/11, I am aware of no previous reference, in the 9/11 Commission report or elsewhere, to a call from a known terrorist safe house in Afghanistan to the United States which, if it had been intercepted, could have prevented the 9/11 attacks. In addition, if the Administration had known of such communications from suspected terrorists, they could and should have been intercepted based on existing FISA law. For example, even assuming that a FISA warrant was required to intercept such calls, as of 9/11 FISA specifically authorized such surveillance on an emergency basis without a warrant for a 48 hour period. If such calls were known about and not intercepted, serious additional concerns would be raised about the government’s failure to take appropriate action before 9/11. (Conyers, Nadler, Scott, 2008).

In a statement provided to Glenn Greenwald (2008) at Salon, former Rep. Lee Hamilton, the vice chair of the 9/11 Commission, stated:

I am unfamiliar with the telephone call that Attorney General Michael Mukasey cited in his appearance in San Francisco on March 27. The 9/11 Commission did not receive any information pertaining to its occurrence.

Additionally, Greenwald (2008) provides an email response from Philip Zelikow, the 9/11 Commission Executive Director (and former Counselor to Condolleeza Rice) (ellipses in original):

Not sure of course what the AG had in mind, although the most important signals intelligence leads related to our report -- that related to the Hazmi-Mihdhar issues of January 2000 or to al Qaeda activities or transits connected to Iran -- was not of this character. If, as he says, the USG didn't know where the call went in the US, neither did we. So unless we had some reason to link this information to the 9/11 story....

In general, as with several covert action issues for instance, the Commission sought (and succeeded) in publishing details about sensitive intelligence matters where the details were material to the investigative mandate in our law.

Greenwald (2008) offers two possible scenarios regarding Mukasey’s statement. Either

(1) The Bush Administration concealed this obviously vital episode from the 9/11 Commission and from everyone else, until Mukasey tearfully trotted it out last week; or
(2) Mukasey, the nation’s highest law enforcement officer, made this up in order to scare and manipulate Americans into believing that FISA and other surveillance safeguards caused the 9/11 attacks and therefore the Government should be given unchecked spying powers.

THE AUTHORIZATION TO USE MILITARY FORCE

In the week after the terrorist attacks of September 11, 2001, Congress issued the AUMF, which authorized the President to

Use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.

Former Senator and Senate majority leader Tom Daschle wrote about creating the AUMF in a December 23, 2005 Washington Post editorial:

On the evening of Sept. 12, 2001, the White House proposed that Congress authorize the use of military force to “deter and pre-empt any future acts of terrorism or aggression against the United States.” Believing the scope of this language was too broad and ill defined, Congress chose instead, on Sept. 14, to authorize “all necessary and appropriate force against those nations, organizations or persons determines planned, authorized, committed or aided” the attacks of Sept. 11. With this language, Congress denied the president the more expansive authority he sought and insisted that his authority be used specifically against Osama bin Laden and al Qaeda.

Just before the Senate acted on this compromise resolution, the White House sought one last change. Literally minutes before the Senate cast its vote, the administration sought to add the words “in the United States and” after “appropriate force” in the agreed upon text. This last-minute change would have given the president broad authority to exercise expansive powers not just overseas—where we all understood he wanted authority to act—but right here in the United States, potentially against American citizens. I could see no justification for Congress to accede to this extraordinary request for additional authority. I refused. (Daschle, 2005).

The Bush Administration claims the AUMF supersedes FISA’s clause that makes it the exclusive means of authorizing surveillance except as authorized by statute. It is unclear how the AUMF, which makes no mention of surveillance, accomplishes that task http://www.fas.org/sgp/crs/intel/m010506.pdf">(Bazan & Elsea, 2006). Furthermore, as Justice Jackson presented in Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952), "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." In a letter from Assistant Attorney General William E. Moschella to Chairman Roberts and Vice Chairman Rockefeller of the Senate Select Committee on Intelligence and Chairman Hoekstra and Ranking Minority Member Harman of the House Permanent Select Committee on Intelligence (hereinafter “OLA Letter”), Assistant Attorney General Moschella (2005) states:[br />

The AUMF cannot be read to exclude this long-recognized and essential authority to conduct communications intelligence targeted at the enemy… Because communications intelligence activities constitute… a fundamental incident of waging war, the AUMF clearly and unmistakably authorizes such activities directed against communications of our enemy. Accordingly, the President’s “authority is at its maximum.”

Additionally, the OLA Letter states:

The AUMF clearly contemplates action within the United States.

and

The AUMF cannot be read as limited to authorizing the use of force against Afghanistan, as some have argued.

Those “some”, presumably, are the members of Congress.

DOMESTIC MILITARY OPERATIONS & THE FOURTH AMENDMENT

The OLA Letter states:

The Supreme Court has said that warrants are generally required in the context of purely domestic threats, but it expressly distinguished foreign threats.” (Emphasis in original.)

The Conyers Letter notes that a March 2003 Office of Legal Counsel (OLC) memorandum publicly released on April 1, 2008, contained a footnote that referenced a secret October 2001 OLC memorandum written by John Yoo, which “concluded that the Fourth Amendment had no application to domestic military operations.” Despite Chairman Conyers’ request, the memorandum has not been released.

The Bush Administration contends it has authority to conduct warrantless surveillance in the United States under its Commander-in-Chief authority. In the OLA Letter, the Administration asserts:

This constitutional authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 717, 742 (FISA Ct. of Review 2002) (“ll 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…. We take for granted that the President does have that authority….”)

This is a misleading statement. The full quotes from In re Sealed Case are

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 (p. 48).

and

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. (Pp. 48, 49).

In the Truong case, the surveillance was done pre-FISA (629 F.2d 908 at 4). It is true that before FISA, courts had ruled that due to the complexity of conducting foreign intelligence gathering, the strict requirements necessary to obtain warrants under a law enforcement purpose would hamper the ability of the President. What In re Sealed Case illustrates is that FISA allows the President to conduct surveillance without the restrictions of a standard warrant for law enforcement purposes, but with the safeguards necessary to protect Fourth Amendment guaranties.

ATTORNEY GENERAL JOHN ASHCROFT’S 2002 MEMORANDUM

On March 6, 2002, Attorney General John Ashcroft issued a memorandum regarding new procedures to apply to foreign intelligence (FI) and foreign counterintelligence (FCI) investigations conducted by the Federal Bureau of Investigation (FBI). It proposed significant changes to FISA and allowed overlapping between intelligence officers and law enforcement officers:

Prior to the USA Patriot Act, FISA could be used only for the "primary purpose" of obtaining "foreign intelligence information." The term "foreign intelligence information" was and is defined to include information that is necessary, or relevant, to the ability of the United States to protect against foreign threats to national security, such as attack, sabotage, terrorism, or clandestine intelligence activities. See 50 U.S.C. § 1801(e)(1). Under the primary purpose standard, the government could have a significant law enforcement purpose for using FISA, but only if it was subordinate to a primary foreign intelligence purpose. The USA Patriot Act allows FISA to be used for "a significant purpose," rather than the primary purpose, of obtaining foreign intelligence information. Thus, it allows FISA to be used primarily for a law enforcement purpose, as long as a significant foreign intelligence purpose remains. See 50 U.S.C. §§ 1804(a)(7)(B), 1823(a)(7)(B).

The Act also expressly authorizes intelligence officers who are using FISA to "consult" with federal law enforcement officers to "coordinate efforts to investigate or protect against" foreign threats to national security. Under this authority, intelligence and law enforcement officers may exchange a full range of information and advice concerning such efforts in FI or FCI investigations, including information and advice designed to preserve or enhance the possibility of a criminal prosecution. The USA Patriot Act provides that such consultation between intelligence and law enforcement officers "shall not" preclude the government's certification of a significant foreign intelligence purpose or the issuance of a FISA warrant. See 50 U.S.C. §§ 1806(k), 1825(k).

These procedures were changed or rejected by the FISA court and its opinion was publicly released in August 2002.

IN RE SEALED CASE

The In re Sealed Case 310 F.3d 717, 742 was the appeal to the FISA court’s opinion of Attorney General Ashcroft’s memorandum. The FISA Court of Review found that the FISA court had overstepped the separation of powers by making changes to the procedures. However, “it made clear that the government can only break down barriers between the FBI and local criminal authorities with respect to crimes that are related to foreign intelligence—not ordinary, garden-variety crimes. As the Court of Review noted, ‘the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes’” (Emphasis added) (Ramasastry, 2002).

IN CONCLUSION

After examining the background on electronic surveillance and the current administration’s use of electronic surveillance, it is apparent that telecommunication companies acting on behalf of the Bush Administration have violated the law. Even more so, did the Bush Administration violate the will of Congress and the judgment of the Court. This criminal behavior may be the most serious threat to democracy this republic has ever faced.

Let's see the trolls defend their propaganda on this thread.

I fully expect crickets.

K&R!!!!!!!!!!!

BHN

Where DID they go?
BHN

i wrote this for one of my graduate poli-sci classes.

Idiots.

The board is HOPPING with propaganda one liner cock roaches!
It's really entertaining!
Come ON~
Get "on board!"

BHN

Okay, I think I got it now.

I promised my dog I'd take her for a walk. Time to pay up. Be back shortly.

LIST OF TOLL FREE CONGRESS SWITCHBOARD PHONE NUMBERS


1-800-828-0498

1-800-459-1887

1-800-614-2803

1-866-340-9281

1-866-338-1015

1-866-220-0044

1-877-851-6437

they vote on fisa again friday.

"when you call say something like this:

I am a constituent calling about H.R. 6304, the Hoyer/Bush FISA Deal. I urge you to vote "NO" because:

1. The Hoyer/Bush FISA deal allows for mass and untargeted surveillance of Americans’ communications.
2. The Hoyer/Bush FISA deal contains blanket immunity, virtually guaranteeing lawsuits against telecom companies will be dismissed. Ongoing lawsuits may be our last best hope of exposing the extent of illegal spying.
3. If leadership will not lead, it is the responsibility of every lawmaker to lead on this issue. You need to do what your constituents and the American people demand. Bowing to pressure from Republicans, the White House, the telecommunications companies and even Democratic leaders is unacceptable.

https://secure.aclu.org/site/Advocacy?alertId=985& ;pg=makeACall

great stuff

have time to fact-check and make a few thousand copies of this before the debate begins.

Kind of lengthy, but the background information seals the deal. Excellent job.

asking to make it okay.

You rob a bank, get away with it and decide to return the money-it doesn't make you right, you are still a bank robber.

No wonder the telecom lobbyists are buying Congress!