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"national security" exception to wiretap laws
From: David Farber <farber () central cis upenn edu>
Date: Thu, 10 Feb 1994 16:52:51 -0500
Date: Thu, 10 Feb 1994 01:15:14 -0800 To: cypherpunks () toad com From: nobody () shell portal com * * * * * 18 USC s 2511(2)(f): Nothing contained in this chapter or chapter 121, or section 705 of the Communications Act of 1934, shall be deemed to affect the acquisition by the United States Government of foreign intelligence information from international or foreign communications, or foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system, utilizing a means other than electronic surveillance as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, and procedures in this chapter and the Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance, as defined in section 101 of such Act, and the interception of domestic wire and oral communications may be conducted. * * * * * [From USCA annotations for 18 USC s 2511] 13. Executive powers This chapter providing that nothing therein should be deemed to limit the constitutional power of the President to protect the United States against any clear and present danger to the structure or existence of the government did not constitute a grant of power and was not intended to expand, contract or define whatever presidential surveillance powers existed in matters affecting national security, but was only intended to make clear that this chapter should not be interpreted to limit or disturb such power as the President might have under the Constitution. U.S. v. U.S. Dist. Court for Eastern Dist. of Mich., Southern Division, Mich.1972, 92 S.Ct. 2125, 407 U.S. 297, 32 L.Ed.2d 752. Former Attorney General was entitled to qualified immunity in civil damage action based upon wiretaps, where sufficient facts were alleged to place wiretap in rational national security context. Ellsberg v. Mitchell, 1986, 807 F.2d 204, 257 U.S.App.D.C. 59, certiorari denied 108 S.Ct. 197, 484 U.S. 870, 98 L.Ed.2d 148. Former national security council staff member's admission that he had access to option papers discussing possibility of Cambodian bombing operation, secret talks with North Vietnamese, and withdrawal of troops from Vietnam, as well as contingency planning in event that such steps might be taken, together with evidence that staff member had roomed with reporter who wrote article reporting classified bombing raids on Cambodia, was sufficient to establish reasonable national security grounds for wiretap of staff member's phone so as to entitle government officials who ordered wiretap to qualified immunity defense in civil damage action brought by staff member. Halperin v. Kissinger, 1986, 807 F.2d 180, 257 U.S.App.D.C. 35. Those provisions of this chapter which, in the context of pure intelligence- gathering activities, would frustrate the constitutional power of the President, cannot be applied to such surveillance. (Per Wright, Circuit Judge, with three Judges concurring and three additional Judges concurring in the judgment.) Zweibon v. Mitchell, 1975, 516 F.2d 594, 170 U.S.App.D.C. 1, certiorari denied 96 S.Ct. 1684, 1685, 425 U.S. 944, 48 L.Ed.2d 187. Restrictions upon the President's power which are appropriate in cases of domestic security become artificial in the context of the international sphere. U.S. v. Brown, C.A.La.1973, 484 F.2d 418, certiorari denied 94 S.Ct. 1490, 415 U.S. 960, 39 L.Ed.2d 575. Whatever constitutional power lies without scope of this chapter and is invested in chief executive to authorize warrantless surveillance for sake of "national security," necessary prerequisite to administration of such power is express approval by President or Attorney General. U.S. v. Kearney, D.C.N.Y.1977, 436 F.Supp. 1108.
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- "national security" exception to wiretap laws David Farber (Feb 10)