Yesterday, at a
White Sox Message Board where I spend a good deal of time, I was sent to
This piece by Byron York of the National Review. I have to admit, when I first read it, it troubled me. Based on the presentation of Mr. York in that piece, he seemed to have a convincing argument that there was a legal basis for Mr. Bush's wiretapping program.
Not one to be convinced lightly, I went in and spent some time reading the actual decision Mr. York refers to. And what I found I think not only showed where Mr. York made a key error, I think it is a very illuminating look at exactly what Mr. Bush has been doing wrong, and how the key justifications made for it by Conservative commentators are fundamentally wrong.
The case in question was brought before the FISA Court of Review (COR from here on), a quirky little invention in the FISA law which allows the Federal Government to appeal a rejected FISA warrant application to a panel of 3 people. The case was a 2002 challenge by the Federal government of a rejected FISA application (the only time the COR has ever been used by the way)
The issue which was brought up before the COR was based on a reading of FISA which had predominated since the 80's. That reading had held that there was a dichotomy in when FISA could be used and when it could not...that FISA was inapplicable in cases where the "Primary Purpose" of the search was a criminal prosecution. The COR determined in this case that they feel that such a designation was not a correct reading of the original FISA act, the Patriot Act had changed the law such that instead of following a "Primary Purpose" standard, FISA now became applicable in the cases where there Foreign Intelligence gathering was a "Significant Purpose" of the investigation. This is a much looser standard, and basically removes any requirement that FISA suspects cannot be subject to criminal prosecution (the incorrect worry of the Moussaoui folks).
Now, this case before the COR was basically searching for an interpretation of this clause and how strict it was. The FISA Court's denial in the case before the COR had been on the basis which was interpreted before the Patriot Act, the "Primary Purpose" one. Basically, if I read this correctly, they were seeing if they could deny a warrant because it was going to be used for prosecution of a potential foreign agent of some sort. The COR decided that the intent of changing the language from "Primary" to "Significant" allowed for the warrant to be issued in the latter case.
Now, on to the question of the warrantless surveillance (the point Mr. York tries to use this case to argue)...that is something which is dealt with only as a tangent in this COR opinion, but it is interesting to note the ways in which it is dealt with. Specifically, the COR addresses the relationship of the Truong case to FISA, by including this phrase describing a key part of the Truong decision
Although the Truong court acknowledged that "almost all foreign intelligence investigations are in part criminal" ones, it rejected the government's assertion that "if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.":
It was interpretations of this phrase combined with FISA which builds up the "Wall" which Mr. York refers to, and even more so, it is this phrase which is the basis for the COR opinion. It finds itself in disagreement with this statement, based on the updated provisions of the Patriot Act.
So, how does this apply to FISA? Well, the interesting thing is, as far as I can tell, this COR decision does not in any way deal with whether or not searches can be conducted of U.S. citizens outside of FISA. Why? Because the COR decision specifically states that FISA warrants do not meet the standard set out by the 4th Amendment.
Let me repeat that, because it is key to this whole discussion: the COR opinion states that the FISA warrants do not meet the 4th amendment standard. Therefore, the entire discussion Mr. York refers to is done in the context of whether or not searches outside the 4th amendment, but INSIDE FISA, fit with the definitions of the Patriot Act.
In fact, the case law which the COR opinion cites specifically does not answer the question as to whether or not searches outside of FISA authority are constitutional. These paragraphs I feel are key in this question. First this one:
The question before us is the reverse, does FISA amplify the President's power by providing amechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.
This paragraph outlines exactly what the decision they're dealing with here says, and comes immediately after the part Mr. York excerpts. The question the COR is dealing with is not whether or not surveillance can be done outside of FISA, but whether or not FISA searches can be done under the constitution at all. When it refers to "warrantless surveillance", it is only making a distinction between searches with a FISA warrant and searches with a criminal warrant, only the latter of which would meet the 4th amendment standard.
This is the sort of search that all law seems to refer to when it says the phrase "Warrantless surveillance" - surveillance without a warrant meeting the 4th amendment standard, but with a FISA warrant. It's funny legal terminology, but it seems to be the truth.
The second key paragraph is this one which occurs towards the end of the Truong discussion, which concludes this argument.
It will be recalled that Keith carefully avoided the issue of a warrantless foreign intelligence search: "We have not addressed, and express no opinion as to, the issues which may be involved with respect to activities of foreign powers or their agents." 407 U.S. at 321- 22.30 But in indicating that a somewhat more relaxed warrant could suffice in the domestic intelligence situation, the court drew a distinction between the crime involved in that case, which posed a threat to national security, and "ordinary crime." Id. at 322. It pointed out that "the focus of domestic surveillance may be less precise than that directed against more conventional types of crimes."
This is actually the conclusion of their opinion, and it basically avoids taking any opinion on exactly the sort of search Mr. Bush has ordered outside of FISA. In fact, its entire thrust is designed at justifying searches approved by FISA which are outside of the 4th amendment standard.
Now, there are a few key points here which do hit matters that have been discussed before. The first is that while this opinion is important, it is not pertinent to the discussion of warrantless domestic surveillance outside of FISA. It simply doesn't take a stand on that subject, it's only interest is surveillance through FISA which does not meet the 4th amendment standard. It also notes that the law it is citing has not yet taken a stand as to whether or not those sorts of searches can be done outside of FISA.
Therefore, this COR opinion would have no bearing at all about whether or not Mr. Bush's actions in defiance of the exact wording of FISA have legal footing through the opinion that those parts of FISA are unable to limit the President. This COR review only states that the courts have not yet dealt with the claim that the President cannot conduct searches outside of FISA because FISA cannot limit the President's power in that way, and leaves that for another day.
Secondly, and here's the real kicker in my opinion, it judges that FISA searches DO NOT meet the 4th amendment standard. The searches are applicable only when there is a foreign intelligence basis for the search, but it is not a 4th amendment search.
As both the Truong case and that COR review state, the President has full authority to engage in wiretaps without a 4th amendment warrant if it involves a foreign intelligence agency. Now, if he's wiretapping a foreigner in this country, there's clearly no constitutional issue, as that person isn't granted 4th amendment rights. But with a U.S. citizen, there could be an issue...as without FISA, there is no means through which to determine whether or not there is a legitimate national security concern which could justify the wiretaps.
This fact is why FISA is not in opposition to the Truong decision, and why it puts no additional limits on Presidential power - the President still has every ounce of power he had beforehand to engage in wiretaps outside the 4th amendment if they are for national security purposes. All the FISA courts do is determine whether or not there are legitimate national security purposes for the wiretap, and if there are, the President can authorize a wiretap outside of the 4th amendment.
FISA does not at all restrict the President's constitutional ability to conduct a wiretap without a warrant in a national security, exactly as this document says. What Mr. York is missing though is that a FISA warrant is different from a 4th amendment warrant. A FISA warrant is used in determining that a case does fit within the President's authority to conduct searches for National Security.
FISA only limits the President's authority to conduct warrantless searches where there is no national security justification. If a FISA warrant is denied, it means that the FISA court judged that there was no national security concern to justify the President using his power to search outside the 4th amendment. FISA therefore does not limit the President's national security powers at all...it limits his ability to use searches outside of national security concerns, something which is not given to the President in the constitution.
Therefore, I think I for one learned several key things here. First, FISA is not in any way in contradiction of the Truong decision. Secondly, FISA wiretaps are considered by the law to be warrantless wiretaps, as they don't meet the 4th amendment standard. Third, wiretaps outside of FISA, after the Patriot Act revisions, can only be in cases where there is no "Significant" national security purpose.
I hope this legalese makes some sense, and if nothing else, helps you feel more enlightened. I sure feel like I learned a lot about Mr. Bush's wiretapping program and why exactly the legal justifications for it fail through this exercise.