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Government Seeks Dismissal of Spy Suit
The Wired blog 27B Stroke 6 is carrying the news that the US has filed a motion to drop the case the ACLU won in lower court against the government's warrantless wiretapping program. The government's appeal of that ruling will be heard on Wednesday, January 31 in front of the Sixth Circuit court of appeals. The feds argue that the case is now moot because they are now obtaining warrants from the FISA court, and furthermore President Bush did not renew the warrantless program. Turns out there's a Supreme Court precedent saying that if you were doing something illegal, get taken to court, and then stop the illegal activity, you're not off the hook. The feds argue in their petition that this precedent does not apply to them. Here is the government's filing (PDF).
It's not done under the FISA program, he's trying to confuse the judge. What they did was they got 1 FISA judge to declare the whole program legal, not case by case with probable cause, not a FISA court ruling, a ruling of a single FISA judge.
An actual legal FISA warrant is done case by case:
Each application
for a surveillance order must include, inter alia:
1) the identity of the federal officer making
the application;
2) the authority conferred on the Attorney
General by the President of the United States
and the approval of the Attorney General to
make the application;
3) the identity, if known, or a description of
the target of the electronic surveillance;
4) a statement of the facts and circumstances
relied upon by the applicant to justify his
belief that . . . the target of the electronic surveillance
is a foreign power or an agent of a
foreign power . . . [and] each of the facilities
or places [to be subjected to the surveillance]
. . . is being used, or is about to be used, by a
foreign power or an agent of a foreign power;
5) a statement of the proposed minimization
procedures;
6) a detailed description of the nature of the
information sought and the type of communications
or activities to be subjected to the surveillance;
[and]
7) a certification [from an appropriate executive
branch official] . . . that the certifying
official deems the information sought to be
foreign intelligence information . . . that the
purpose of the surveillance is to obtain foreign
intelligence information . . . that such
information cannot reasonably be obtained
by normal investigative techniques . . . .
http://fas.org/irp/agency/doj/fisa/sojudge.pdf
The Fourth Ammendment:
No folly is more costly than the folly of intolerant idealism. - Winston Churchill
> Using it as an excuse for ex post facto warrants and attempts at all encompssing listening systems should not be tolerated.
It is my understanding of FISA that getting a warrant after the fact is perfectly legal if the warrant is obtained within 72 hours. The Bush administration refused to even do that! The reason FISA exists is so that someone outside the administration (i.e., at least one federal judge) is aware of who and what is being wiretapped and will hopefully keep them from abusing the power of the intelligence services as had been the case from WWII to Watergate. During the 1960's the government was spying on the likes of Martin Luther King, Vietnam War protesters, and many others who did not warrant it. The government even had the audacity to attempt to use the information gathered about King to coerce him to commit suicide.