Re: How Prosecutors Wiretap Wall Street

[Paul Schmehl <pschmehl_lists () tx rr com>]

--On November 7, 2009 11:20:31 AM -0600 Rohit Patnaik 
<quanticle () gmail com> wrote:

> The direction of the association doesn't matter. It doesn't matter if
> the "terrorist" is contacting me, or if I'm contacting the terrorist. 
> In either case, the US government should get a warrant before they spy
> on me.

Why?  If they were pursuing criminal charges against you, then, by all 
means, they should have to comply with all the strictures that protect our 
rights.  But to gather intelligence about what terrorists are up to, even 
if a US citizen is involved, should not require a warrant.

Intelligence works best in a world of secrecy.  The more people that are 
aware of what's going on, the higher the likelihood is that the persons 
being monitored will find out and change their operations.

The problem is that the lines have blurred because of technological 
advances.  So you have the dichotomy of the need to know what the enemy is 
up to juxtaposed against the need to protect citizens from an out of 
control government.  I believe the line should be drawn clearly between 
information gathering and pursuit of criminal charges.  Other believe 
differently.

>  Also, this executive opinion doesn't just apply to the CIA and
> the NSA.  It applies to the entire executive branch, including law
> enforcement.

Huh?  How do you know that?  Have you seen the Executive Order?  I've 
looked for it in the Presidential Archives.  It's not there.

> Secondly, we seem to have a general disagreement about the intent of the
> laws regulating the intelligence and law enforcement apparatus of the
> state.  My opinion is that the restrictions placed on these agencies
> were intentional.  They were created by a Congress that was disgusted
> by the rampant abuse of executive power that occurred during the Nixon
> administration.

That is correct.  The Nixon administration was using the excuse of 
national security to spy on domestic activists, claiming they were a 
threat to national security.  FISA was created to insert the courts into 
the process and prevent spying on US citizens without a warrant.  But even 
when FISA was created, Congress noted that the law was not designed to 
infringe on the President's Constitutional powers to conduct foreign agent 
surveillance without a warrant.

> They were strengthened when Reagan found loopholes in
> those restrictions.  As such, I don't think its Constitutionally valid
> for the President to unilaterally ignore those restrictions.  Yes, I'm
> aware of the use of force resolution that was passed shortly following
> the Sept. 11th attack.  However, I don't think the language contained
> therein represented a rollback of over 30 years of legislative
> history.  If it is really necessary for the intelligence agencies to
> have these unprecedented powers, then they shouldn't be hesitant in
> presenting their case before Congress.

There are two schools of thought.  One says the Executive should ask 
Congress to change the laws to make the job easier to do.  The other says 
the Executive's inherent powers make that unnecessary.  FISA, if 
interpreted to require warrants for all surveillance of US citizens, even 
traitors working for the enemy, may well be an unconstitutional intrusion 
on the Executive branch's powers.  If challenged in court, it might even 
be struck down as overly broad.  Or the courts could clarify exactly where 
the line is drawn.

I don't think the program "rolled back 30 years of legislation" as some 
have argued.  I think it chose to interpret the Executive's powers as 
including the ability to monitor communications of the enemy, even when 
those communications crossed our borders, without having to engage the 
ponderous legal system and all the reams of paperwork that requires.  FISA 
was designed before the age of transcontinental computer transmissions and 
never envisioned a scenario where the enemy's communications would be 
carried on circuits within the US.  In fact FISA didn't even address 
individual actors but only nation states.

The issues are complex, and they should be discussed without emotion or 
political rhetoric and unfounded charges that cloud the waters.  And one 
must always keep in mind that we're talking about a military agency trying 
to track what our enemies are doing, not a domestic law enforcement agency 
trying to convict citizens of a crime.

Paul Schmehl, If it isn't already
obvious, my opinions are my own
and not those of my employer.
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