Friday, February 03, 2006

Reports on warrantless domestic spying

The 14 law professors who wrote a response to the brief Justice Department memo justifying the domestic spying have written a response to the 42 page justification. They aren't sold:

The DOJ is correct, of course, that Congress contemplated that it might authorize the President to engage in wiretapping during wartime that would not otherwise be permissible. But Congress created a clear statutory mechanism for addressing that possibility–a fifteen-day window in which warrantless wiretapping was permissible–for the precise purpose that the President could seek amendments to FISA to go further if he deemed it necessary to do so. The President in this case sidestepped that statutory process, but in doing so appears to have contravened two clear and explicit criminal provisions– 18 U.S.C. § 2511 and 50 U.S.C. § 1809.

In short, the DOJ Memo fails to offer any plausible argument that Congress authorized the President to engage in warrantless domestic electronic surveillance when it enacted AUMF. The DOJ's reading would require interpreting a statute that is entirely silent on the subject to have implicitly repealed and wholly overridden the carefully constructed and criminally enforced "exclusive means" created by Congress for the regulation of electronic surveillance.
They further note that the only Supreme Court rulings relevant to the Fourth Amendment encroachment of this program is Katz, a case which held that warrantless wiretapping of domestic telephones was unconstitutional. Whether the reasonable expectation of privacy ends when you make or receive an international call is not a topic ever explicitly decided.
The NSA spying program has none of the safeguards found critical to upholding "special needs" searches in other contexts. It consists not of a minimally intrusive brief stop on a highway or urine test, but of the wiretapping of private telephone and email communications. It is not standardized, but subject to discretionary targeting under a standard and process that remain secret. Those whose privacy is intruded upon have no notice or choice to opt out of surveillance. … Finally and most importantly, the fact that FISA has been used successfully for almost thirty years demonstrates that a warrant and probable cause regime is not impractical for foreign intelligence surveillance.

…The DOJ's efforts to fit the square peg of NSA surveillance into the round hole of the "special needs" doctrine only underscores the grave constitutional concerns that this program raises.
In other news, the Center for American Progress has issued a report titled "NSA Domestic Warrantless Wiretapping and the 'Trust Me' President."

The defense remains that the President says it's OK, and maybe it works.