Wiretap: Bush's Lawyers Thinking

"Why would Bush ignore checks and balances? What about the 4th Amendment?"
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Is W a cowboy outside of the law?

While trying to explain why some excellent anti-wiretap points were moot, I stumbled upon the actual decision that incorporate all decisions relative to wiretaps, criminal activities and terrorist intelligence.

When you read this decision (linked in the title) you too may better see how the evolution of the application of protection of the Constitution was clarified and removed under certain circumstances.
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The clear issues that lawmakers agreed on were in cases of criminal misconduct that were then bridged to include international espionage and later terrorism.

Several additional cases listed below clarify the pattern. In a side note, some of these cases also created the walls that blocked cross-communication between intelligence agencies. Those same walls that are removed under the Patriot Act.

Here are the decisions:
  • Foreign Intel "wall" removal
  • Executive branch may be excused from a warrant if involves agent of a foreign power (paraph) or if the surveillance is conducted ‘primarily’ for foreign intelligence reason"
    United States v. Megahey, 553 F. Supp. 1180 (E.D.N.Y. 1982), aff'd sub nom. United States v. Duggan, 743 F.2d 59 (2d Cir. 1984)

    Fourth Circuit case decided in 1980. United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980)

    This leads into a brain pretzel of wording that evolves in several more decisions to accept foreign intelligence operations as separate from criminal activities except where foreign espionage is a criminal activity. UGH!

    The jist is that FISA is primarliy concerned that agencies not share information without strict regulation.

    Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995) (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court'’s approval of entirely warrantless and even suspicionless searches that are designed to serve the government's "“special" needs, beyond the normal need for law enforcement.

    This addresses special circumstances outside of the normal need for checks and balances.

    There is much here, far more than the typical operate-seat-of-the pants lazy journalist will dig into. Some of it I understand and some I do not because I'm not a lawyer (yeah, I look for the II to work me over on this one ;) because she is a lawyer). However I can see pretty clearly where the legal thinking applied to existing cases as follows:
    1) war time situation
    2) application against international terrorism concerns versus domestic crime
    3) Objective of thwarting terror versus prosecuting criminals
    **** that part is the key to the difference in thinking

    IF the goal was to arrest and convict an American citizen for a crime then there would be a HUGE PROBLEM with the White House authorizing wire taps. However, clearly that is not the goal of this operation and thus this interpretation: "So long as the government entertains a realistic option of dealing with the agent other than through criminal prosecution, it satisfies the significant purpose test." The goal is to prevent another terror attack on our soil by agents of international terror.

    It seems the secret court did not always agree to this perspective and switched from previous graceful allowances to narrowing scopes and blocking taps of suspects. To be fair this would have been a reasonable course of action prior to 9/11. However this limit does not rise to meet the abilities and scope of the threat. While the terrorist suspect may not be a criminal he still may be waiting for an order to execute. The goal is to pinpoint the cells and block them from acting. When applied this way, the rulings favor Bush's pro-active order over the secret court's blocking and hesitations.

    I just do not see the threat to citizens given the focus and circumstances. The wording specifically prohibits use against subjects who are citizens and clearly not foreign agents and also explicitly protects the press. I do not even see how it could be deemed a reasonable basis in the future to wiretap citizen to citizen communications? Is the concern constitutional and/or precedent? Or is it rather a ploy to spin a negative view against a political enemy for personal gain to hell with the consequences to security?

    I welcome the comments to come, and any corrections to what I've misinterpreted. I find it very hard to believe this is anything more than another "Bush Bashing" ploy.