Excellent response!! I like it when someone presents that much documentation and challenges me.
Btw, I have no real dog in this fight on surveillance, other than to prevent it from becoming a precedent for using it as a tool for law enforcement, so for me to try and finer specifics of the legal interpretations would probably leave me at a disadvantage, not being a lawyer.
However, it seems to me that the conflict of ideals comes from the congress' right to pass laws to preserve public order versus the executive branch's inherent jurisdiction to conduct the national defense during war.
So I guess it really comes down to whether conducting surveillance on all communications traffic crossing US borders constitutes a violation of private rights, or a necessary tool of, if not an on-going military operation, inherently part of fighting that war.
Some have opined that the manner in which such intelligence is collected.. (allegedly, some claim, using key word searches and voice recognition) requires ALL electronic traffic to be collected and THEN analysed.
It's tantamount to trying to find Uranium 235.. you have to collect a bunch of U238, gassify it, and then separate the fissionable material from the base element. That's separation is the equivalent of the analysis.
Essentially, analyzing electronic signals is equivalent to digging for diamonds in a mountain of dirt.
So it seems to me that the very issue of conducting such surveillance, as a vital tool of national security, the President is going to win hands down on the legal front. Just like the President doesn't have to go to Congress for approval to conduct a particular military ground operation in pursuit of a war, he can correctly apply his authority as CinC to electronic military operations, or even other forms of intelligence collection.
But then on the side, once information is collected and it is discerned that a US citizen is involved, it should be required to have a warrant issue, even if post-facto. For if a US citizen is involved, then we're talking about the crime of treason and espionage, which falls under the purview of Congress' authority.
However, if the surveillance is being conducted against both a non-US citizen, or even possibly both a US citizen and non-US, then it can be construed as a military operation under the purview of Counter-Intelligence and the FBI and Military Intelligence is going to have to figure out the jurisdictional matters. The Military may be use the information to conduct their operations against targets outside of the US, while they may, or may not, share their intelligence with the FBI (in the interest of OpSec).
I don't know where this is going to wind up.. But the entire issue suggests that constitutional amendments might be required if it's pursued too its full extent. The FISA court was a quasi-constitutional stop-gap measure aimed at resolving this inherent conflict between legislative, judicial, and executive powers.
Again.. thanks for the great response and the links!!
Hawk |
