On Warrantless Wiretapping
Published by BG on Thursday, May 17, 2007 at 9:42 AM.The testimony by former Assistant Attorney General James Comey on Tuesday revealed some pretty amazing information on the warrantless wiretapping of American citizens in which the administration had been engaging since October 2001. I'm going to link a couple of articles below, but here's a quick rundown on the issue to get you started:
1) 30 years ago (post-Nixon), Congress passed a law that said that all wiretapping with one end or more of the conversation originating in the USA needed to be approved with a warrant. There's a secret court that has this oversight - FISA.
2) In October 2001 the Bush administration began a program of warrantless wiretapping (i.e., no FISA warrants requested, even though FISA has been essentially a rubber-stamp oversight body since its inception). The White House Office of Legal Counsel issued an opinion that cited Article II of the Constitution to establish the President's ability to operate unrestrained by law or oversight (i.e., time of war commander-in-chief cannot be encumbered by Congress or the law when it comes to carrying out those duties). It bears mentioning that a Federal court has ruled that this interpretation of authority has been ruled illegal and unconstitutional in the specific case we're discussing here.
3) In early 2004 the Office of Legal Counsel reversed its stand on the Article II justification, and the DOJ refused to certify the legality of the warrantless wiretapping program. This necessarily means that the wiretapping program had been operating extra-legally for more than two years.
4) In late 2004, the administration agreed to work with the DOJ to make changes so that the DOJ could certify legality*. They apparently changed the program to fit it under the Authorization for the Utilization of Military Force against Iraq and al-Qaeda, which necessarily means that an UNCHANGED program DID NOT fit under the AUMF. In other words, this warrantless wiretapping only became DOJ certified when the administration agreed that they should, going forward, discontinue use of the program against non-AUMF named entities. Logically, this infers that the version of the program the DOJ refused to certify was wiretapping American citizens who were not talking to al Qaeda or Iraq.
*Don't miss the dramatic Ashcroft/Comey/Mueller/Card/Gonzales hospital bedside drama that occurred around the topic of certification. Greenwald discusses it at some length.
I can't encourage you strongly enough to read these articles (in this order, the second is a little more dense), and click through some of the links that take you to other parts of the story. Of particular interest is the case the ACLU brought against the government on this program in 2006 in Federal court. How the administration chose to defend itself is unbelieveably interesting, considering the theories this administration has on unitary executive authority.
Glenn Greenwald - Salon
Balkinization
1) 30 years ago (post-Nixon), Congress passed a law that said that all wiretapping with one end or more of the conversation originating in the USA needed to be approved with a warrant. There's a secret court that has this oversight - FISA.
2) In October 2001 the Bush administration began a program of warrantless wiretapping (i.e., no FISA warrants requested, even though FISA has been essentially a rubber-stamp oversight body since its inception). The White House Office of Legal Counsel issued an opinion that cited Article II of the Constitution to establish the President's ability to operate unrestrained by law or oversight (i.e., time of war commander-in-chief cannot be encumbered by Congress or the law when it comes to carrying out those duties). It bears mentioning that a Federal court has ruled that this interpretation of authority has been ruled illegal and unconstitutional in the specific case we're discussing here.
3) In early 2004 the Office of Legal Counsel reversed its stand on the Article II justification, and the DOJ refused to certify the legality of the warrantless wiretapping program. This necessarily means that the wiretapping program had been operating extra-legally for more than two years.
4) In late 2004, the administration agreed to work with the DOJ to make changes so that the DOJ could certify legality*. They apparently changed the program to fit it under the Authorization for the Utilization of Military Force against Iraq and al-Qaeda, which necessarily means that an UNCHANGED program DID NOT fit under the AUMF. In other words, this warrantless wiretapping only became DOJ certified when the administration agreed that they should, going forward, discontinue use of the program against non-AUMF named entities. Logically, this infers that the version of the program the DOJ refused to certify was wiretapping American citizens who were not talking to al Qaeda or Iraq.
*Don't miss the dramatic Ashcroft/Comey/Mueller/Card/Gonzales hospital bedside drama that occurred around the topic of certification. Greenwald discusses it at some length.
I can't encourage you strongly enough to read these articles (in this order, the second is a little more dense), and click through some of the links that take you to other parts of the story. Of particular interest is the case the ACLU brought against the government on this program in 2006 in Federal court. How the administration chose to defend itself is unbelieveably interesting, considering the theories this administration has on unitary executive authority.
Glenn Greenwald - Salon
President Bush ordered the NSA to engage in warrantless eavesdropping back in October 2001. The incidents which Comey described yesterday -- whereby the DOJ refused to certify the program's legality -- occurred in March, 2004, two-and-a-half years later. Since the NSA was spying on Americans outside of FISA the entire time, what prompted the DOJ suddenly to "reexamine" the legality of the program after all that time?
Balkinization
In light of all these considerations, just try to imagine how legally dubious the Yoo justification must have been that John Ashcroft was so profoundly committed to its repudiation.
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