Truth 2 Power Project: History of Presidential Wiretapping

I've always felt there was value in discussing vital issues with people who don't always agree with you. It causes you to question what you automatically believe, to test it and see if your arguements hold water.

It's a challenge, and sometimes you surprise yourself.

That's been the case here.

I picked out a lonely Wingnut to pick on in order to test myself - to push myself. Far too often the political debate has become like the sound of one hand clapping. We're like two massive armies staring at each other across a huge field, occasionally tossing spitballs, spears and bunker-busting nukes at each other -- talking past, but not too one another.

That has to change, and over the flip is my small attempt to move in that direction --aka Episode III : The Revenge of the Supremes!

I've been having a but if back and forth with the Right-wing blog Obviously Right, but before I take a look at their latest installment and get deeply into the "tit for tat" aspect of things - I've decided I should level-set just what it is that's going on here.

This particular debate started after the New York Times posted an Editorial which in no uncertertain terms indicates their view that the President Bush's extra-FISA NSA wiretaps are blatantly illegal. I happen to strongly agree.

In a generic search, I found Obviously Right's post attempting to debunk this claim by repeating DOJ talking points that "Many President's have exerted this authority", and in fact they have, but that doesn't mean that what they've done was legal or Constitutional. In fact, several of them have been challenged in court and the overall results have not exactly been favorable to their position.

Before I go over the History Presidential of Wiretapping, let me first state again that I think that we absolutely should be wiretapping members of al Qaeda and tracking their communications whether they are within the United States or overseas. Just today on Meet the Press, Jane Harmon (D-CA) and Tom Dashchle - who were both members of the Gang-of-Eight and were briefed on the program before it was publically revealed by James Risen - have stated that the program should continue. I concur, although I also agree with their statements that it should be done in concordance with the law (FISA), or else FISA should be amended to include the program and make it Constitutional..

The President's arguements that they don't have enough time to submit and have the warrants approved, echoed by Sen Pat Roberts on the very same program, sound hollow and false when the fact that the Patriot Act already amended FISA to allow for warrants to be submitted up to 72-hours after the fact, and that DOJ lawyers can usually prepare and submit the paperwork within 24 hours and keep listening in the meantime.

They can already act immediately if they have probable cause and reasonable suspicion of terrorist activity,and have plenty of time for the paperwork after-the-fact, so what more do they need?

Similarly the arguement that amending the law now would let al qaeda know too much of our inside baseball, is ridiculous -- the cat's out of the bag and half-way down the street already. Either we can get off our ass and chase it down [fix the law and abide by it] or else sit there and let it get further away.

Apparently, according to General Hayden, former director of the NSA, they need to lower the Constitutional the standard from Probable Cause to "Reasonableness", (except of course when he denies that claim) - and that is clearly an attempt to re-write the Constitution on back of napkin, which is frankly, unacceptable.

So, that is where we are - just where have we been on this subject over the last 150 years?

During the Civil War President Lincoln authorized taps of telegraph communications, this action was done in secret and not challanged in court to verify it's Constitutionality - however his action to suspend habeas corpus was challenged and overturned as the power to suspend habaes in times of national emergency is a power granted exclusively to the Congress under Article I Section 9, not the President.

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

After the invention of the telephone the issue of wiretaps grew far more active. In 1927 J. Edgar Hoover used telephone taps to capture bootleggers. In court, a bootlegger named Olmstead challenged the taps under the 4th Amendment ban on unreasonable search and seizure. The Supreme court upheld the tap, arguing that it was legal as long as a break-in was not peformed in order to place the listening device.

Concerned with Hoover's growing power, Congress passed the 1934 Communications Act which outlawed non-consensual phone taps. This was followed by a 1939 Supreme Court ruling which established that illegally gathered phone conversations were inadmissable under the Exclusionary Rule originally established in Weeks v The United States in 1914.

In 1940 President Roosevelt, having signed the 1934 Communications Act and agreeing with a 1939 SCOTUS Decisions upholding it, decided to carve an exception into the rules for communications involving possible foreign spies - particularly "Fifth Columnist" Germans who might be within the borders of the U.S. Like Lincoln, this surveillance was implemented secretly and never challenged directly in a court of law. Interestingly, Roosevelt did not include American Citizens in his surveillance net. Roosevelt told his Attorney General in a memo dated May 21 1940.

You are, therefore, authorized and directed in such cases as you may approve, after investigation of the need in each case, to authorize the necessary investigation agents that they are at liberty to secure information by listening devices directed to the conversation or other communications of persons suspected of subversive activities against the Government of the United States, including suspected spies. You are requested furthermore to limit these investigations so conducted to a minimum and limit them insofar as possible to aliens.

After World War II President Truman continued this secret practice, only in the midst of the burgeoning coldwar and the "Red Scare" this surveillance was increasingly used against Americans suspected of being "Communist Sympathisers". This is where things began to slide off the rails.

[Attorney General] Clark and Truman endorsed wiretapping whenever matters of "domestic security" were at stake, allowing taps to be placed on someone simply because he held radical views.

Truman's taps is where Obviously Right (and the DOJ) conventiently ended ther justification of Presidential power, but what's most interesting is what happened next.

The next four presidents, with escalating zeal, each made use of taps and bugs, drawing little scrutiny amid the Cold War anxiety. The FBI and CIA monitored all sorts of citizens who were far from subversive. Most famously, under John F. Kennedy and Lyndon Johnson, the FBI eavesdropped on Martin Luther King Jr. on the threadbare rationale that he had Communist ties and posed a security threat. Although the King incident wasn't revealed for years, a backlash against the so-called "national security state" nonetheless began. Itself quite worried, the liberal Warren Court stepped in and in the 1967 Katz case overruled Olmstead, holding that government taps did indeed constitute an unconstitutional search and seizure.

In the midst of increasing violence and riots in reation to the Civil Rights Movement and the Vietnam War, Congress attempted to undue Katz by passing the 1968 Omnibus Crimes and Safe Streets Act.

...passed in part as a response to the Supreme Court decisions Berger v. New York, 388 U.S. 41 (1967) and Katz v. United States, 389 U.S. 347 (1967), which the Church Report on the FBI's COINTELPRO program described as holding "that the Fourth Amendment did apply to searches and seizures of conversations and protected all conversations of an individual as to which he had a reasonable expectation of privacy".
Section 2511(3) specifies that nothing in this act or the Federal Communications Act of 1934 shall limit the constitutional power of the President "to take such measures as he deems necessary ":

"to protect the nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States or to protect national security information against foreign intelligence activities"

"to protect the United States against the overthrow of the Government by force or other unlawful means, or against any other clear and present danger to the structure or existence of the Government"

With this law on the books, President Nixon's Attorney General John Mitchell took warrantless wiretaps of much further than even than Truman during the midst of the '50s anti-Communist "Blacklists" -- by creating COINTELPRO.

Mitchell held that the Justice Department was free to tap without a warrant any political dissenters it deemed threats to national security. Given how many Americans were organizing to oppose various government policies in 1969, Mitchell's reading promised to sanction the surveillance of millions of people who agitated against the Vietnam War, championed black radicalism, or engaged in campus protests.

In 1972 the Supreme Court again acted to check the President's wiretap power in the "Keith" case.

In the name of protecting national security, Nixon wanted to be able to wiretap without the approval of a judge. The authority for this power? Before the Court of Appeals, Nixon relied on a vague "historical power of the sovereign to preserve itself" and "the inherent power of the President to safeguard the security of the nation."
Later, arguing the issue before the Supreme Court, the government got even more vague -- just loosely using the national security contention. In the end, the Court -- in the ironically named case United States v. United States Court for the Eastern District of Michigan(which became known as the Keith Case) -- said no. Joining the opinion were all of Nixon's own appointees -- except William Rehnquist, who recused himself.

So those who are arguing in favor of this kind of broad executive power - which has been repeatedly blocked and limited by the Supreme Court at least four times by 1978 when the FISA law was passed - are actually standing in support of the extreme views of President Nixon, who was nearly Impeached for his actions and ultimately resigned the Presidency in shame.

That bring us to into the tat-for-tat of "Mr. Obviously Right".

My point was solely, is solely, and remains solely this: It is Constitutional for the President to spy on enemies during war time. Compared to the actions of past Presidents, President Bush has shown far more regard for civil liberties than Washington, Lincoln, Wilson, and FDR.

Well, the first question I have to that point is - "What exactly has President Bush done to protect civil liberties in this current scenario"? The one lone protection available, is to abide by the 4th Amendment, meet probable cause and get a warrant in regards to domestic targets as is required by FISA and numerous Supreme Court decisions. President Bush has not done this, and has instead asserted an inherent right that frankly has been shown several times - as I have explained above - to not trump the 4th Amendment.

Hence my point - which you dismissed - remains wholely relevant.

"the question is whether or not due process, probable cause, habeas corpus and the bill of rights can be summarily suspended or ignored by a President during a War, or for that matter ever."

Obviously Right continues;

Vyan says:
My point isn't that it's wrong to spy on foreign enemies - of course we should do that
and:
I didn't have any contention with the point that other President's have done worse, they have.
Then, pardon my French, but what the hell is the point?

Please refer to "whether or not due process, probable cause, habeas corpus and the bill of rights can be summarily suspended or ignored by a President during a War, or for that matter ever." Or to put it another way, the President - no President - has the power to violate the bill of rights. Yes, they can and should do surveillance, but they have to do it within the confines of the law and Constitution. There is no provision in the Constitution that gives the President super-uber-duper powers which allow him to ignore the 4th Amendment. None.

O-Right.

I advanced two claims. You've conceded them both. End of argument. Period. Finit. That's it. Fat lady's sung. Show's over. Boat has sailed. The curtain's down. The bell has tolled. End of story. The house lights are coming up. The bar's closed. You don't have to go home, but you can't stay here.

Uh huh. Actually it's "You don't have to go home, but you have to get the Hell outta here!" - can't you even quote your cliches correctly? And it should be clear, that you're completely missing the point. Let me make it simple - Presidents are not Kings.

Actually, I brought up Youngstown because the DOJ and AG Gonzales brought it up...one with AG Gonzales has repeatedly brought up himself
Here's how nutty Vyan is: He quotes from Gonzoles's address to Congress, that happened Monday, February Fifth. He insists I must have gotten my post from it and that therefore I am obligated to trawl through it and defend every single statement and line.
I wrote my post on Sunday, January 29. Fully 8 days before.

Let me repeat - "because the DOJ and AG Gonzales brought it up - repeatedly". Before he testified before Congress Gonzales had a press conferece with General Hayden which I linked too - Here. That press conference took place on December 19. Let's see 12+29 , carry the one - well that's fully 41 days before your post. Wow. What Gonzales said then was this...

I might also add that we also believe the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity. Signals intelligence has been a fundamental aspect of waging war since the Civil War, where we intercepted telegraphs, obviously, during the world wars, as we intercepted telegrams in and out of the United States.

What I also said was that these same claims had been made by the Department of Justice. They did so in a 42 page document which was released on January 19 - Fully 10 days before your post. In the document the DOJ stated the following.

In fact, Washington himself proposed that one of his Generals "contrive a means of
opening [British letters] without breaking the seals, take copies of the contents, and then let them go on."
More specifically, warrantless electronic surveillance of wartime communications has
been conducted in the United States since electronic communications have existed, i.e., since at least the Civil War, when "[t]elegraph wiretapping was common, and an important intelligence source for both sides."
Shortly after Congress declared war on Germany in World War I, President Wilson (citing only his constitutional powers and the joint resolution declaring war) ordered the censorship of messages sent outside the United States via submarine cables, telegraph, and telephone lines.
As noted in Part I, on May 21, 1940, President Roosevelt authorized warrantless
electronic surveillance of persons suspected of subversive activities, including spying, against the United States.

I did not claim that you heard these statments at the Gonzales hearing, only that at the hearing he was repeating himself - and you were - wittingy or not - repeating him. I said that you were regurgitating DOJ/Gonzales talking points, because you were - and I had seen them before. The fact that you cited almost the exact same events that the DOJ did (while conveniently omitting the illegal surveillance of Dr. Martin Luther King, Malcolm X and COINTELPRO during the Nixon era) simply could not be happenstance. Maybe you didn't know that's where those arguments came from - maybe you did. Doesn't matter. You were promulgating their propoganda, and I called you on it.

According to Vyan, none of [Washington's attempted surveilance during the Revolution] has any relevance to the Constitution because it happened before the Constitution and isn't contained within the text of the Constitution.
But is this actually so?
In the Constitution, they gave the Federal Government the power to tax some activities, because during the Revolutionary War, General George Washington couldn't get the funds he needed for his troops.
Washington's experience during the War->affects Constitution

Umm... call me silly but isn't the power to tax "Contained within the text of the Constitution"? Yeah, it is - that's why it has an "affect" on the Constitution. It's in the text. Opening the mail during a war isn't.

Many of those involved in the Convention were involved in and carried out the orders to monitor domestic mail during the War. All of them were privy to the actions, and none- not one- ever denounced the actions. They clearly felt it was an integral and necessary part of warmaking activities.

They did? So where is this inherent ability included in the Constitution? Or better yet, as I asked previous what in the Federalist Papers supports this view? Oh wait, nothing does. Never mind.

Vyan continues:
In short, bubula, the President's powers are effectively limited by the rules and regulations of the armed forces as written by Congress...It's also the reason that FISA is perfectly Constitutional.
Wow, look, I was talking about one thing and here you are "rebutting" it by talking about something completely different and unrelated. How novel.

Ok, this is where we have an obvious disconnect. FISA is the controlling law regarding surveillance within the United States, whether you think what President Bush is doing is "worse" or "better" than what other Presidents have done -- his actions violate FISA. Pardon me for quoting legal scripture but under 18 USC § 2511. (Prohibition of Interception and disclosure of wire, oral, or electronic communications)

(f) Nothing contained in this chapter or chapter 121 or 206 of this title, 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 or chapter 121 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, oral, and electronic communications may be conducted.

This is the LAW. Back to the Wingerman.

However, since you are so clearly begging for an ass-kicking, here's my reply: Your claim- "Article 2 gives Congress the power to 'regulate the army and navy.' This means they can dictate absolutely every detail of the President's activities in war. This then means that Congress can ban the President from gathering intelligence from enemies in wartime."- is flawed, unsupported, contradicted by the FISC and in general irrelevant.

First of all, it's Article I - not Article II. Don't invent quotes for things I didn't say and then get them wrong, please. I didn't say that it can set the rules of "every detail" of the President's activities in war - it allows the Congress to set the rules for the Army, as in, who can be IN the Army & Navy (although technically not the rules for the Air Force since it didn't exist at the time - which I guess a strict constructionalist could quibble with, but I won't), and what their conduct can be or shouldn't be as prescribed by the Uniform Code of Military Justice, but it doesn't allow them to dictate battle field tactics. It's a more general set of rules.

I mean c'mon - we just recently had Congress put a ban on torture into the Defense Appropriations Bill, even though the President originally threatened to veto it, it is now the law. So, Congress authority to set the rules on the military is supported. Easily.

More, the very language of the clause you quote doesn't support you. The power to "regulate the army and navy" doesn't confer the power to absolutely dictate every single wartime policy.

I didn't say that it did, only that it allows the Congress to set rules for the conduct of the DoD and NSA, including the FISA procedure.

Were that true, giving the President power would be meaningless as the power would really lie with Congress. It is barking mad to believe that the Constitution says the President is C-in-C, but that the same Constitution then gives the entirety of that authority to Congress.

It's not the same authority. Congress draws the bounderies, the limits - particular in regard to actions that have an effect within the borders and jurisdiction of the U.S. - the President is free to act only within those limits. However actions which occur abroad, are generally outside the control of Congress.

Under normal circumstances, with Wars involving foreign nations and foreign actors - there is no conflict. When the focus of "Combat" enters the confines of the U.S. itself - as I said, the President is limited as shown by Katz and Keith.

Nor is the NSA part of the military. It is part of the intelligence community.
What is the NSA? "The National Security Agency/Central Security Service (NSA/CSS) is the Nation's cryptologic organization."
Is it part of the military? "The Central Security Service (CSS) was established by Presidential Directive in 1972 to promote full partnership between the NSA and the cryptologic elements of the Armed Forces."
How could the NSA partner with cryptological counterparts in the Armed Forces if it were them?

There are 18 different Intelligence agencies in the U.S. Government. Each branch of the Armed Forces has one, and NSA coordinates with them all while itself being a part of the DoD (Department of Defense). Why do I say that? Because....

The U.S. Constitution, federal law, executive order, and Executive Branch and Department of Defense regulations govern NSA/CSS activities.

Let me repeat, Congress has the authority, under the Article I, Section 8 of the Constitution, to write DoD regulations - including those governing the NSA.

You knew for a fact you had no information about the Consitutionality of any of the cited actions of Lincoln, and yet you used a court case you knew was irrelevant to declare those actions Unconstitutional.

I hadn't yet found and compiled the information I presented at the beginning of this post, which does directly address Presidential wiretapping. What I showed was the next best thing, but it (the Taney decision) was not irrelevent, it directly answers the question of what the President's powers are during Wartime. In this case, Lincoln didn't have the power to suspend habeas, as mentioned above. Presidents of all of political stripes have repeatedly attempted to assume powers not granted by the Constitution and they've been repeatedly shutdown by either the Courts, Congress of both.

More, your theory of Constitutional justice- "Only that which has been argued in court is Constitutional."- is monumentally stupid. Were it true, this would also have to follow: "Only that which has been argued in Court is Unconstitutional."

Again with the phony quotes. I didn't say that. The point is that a President can't simply assert he has a specific authority that isn't enumerated in the Constitution - as you admit the ability to conduct wartime domestic surveillance is not included. That assertion has to be tested, and the current method for testing such assertion since Marbury V Madison in 1803, is in the Supreme Court. So far, the Presidency has failed that test.

And, in this case, your bizarre legal claim is moot. Warrantless eLint operations against an wartime enemy located in the U.S. is an issue that has been argued in court and has been declared Constitutional. So says the FISC and every other court that has reviewed the issue.
When offered the chance to overturn that self-same FISA decision, the Supreme Court declined, thereby letting it stand. The Supreme Court was aware of the FISC decision, aware of the position it made and declined to review.

You are claiming this based on the Sealed Case, for which there are no details available? Already argued. Supreme Court Decisions such as Hamdi supercede decisions of the FISC. Next.

I didn't "defend" Lincoln's activities, en masse or one at a time. I merely pointed out that your Leftist hysterics about Bush are unfounded, paranoid, and ignorant. He isn't Hitler, he isn't engaging in an uprecedented seizure of power and he isn't establishing a dictatorship.
Compared to all of the other Presidents I cited, he has gone to extreme lengths to respect civil liberties. And you've admitted it.

No, I didn't admit that. I said that other Presidents have asserted simlar authority - but that doesn't make them correct. In effect, you used Lincoln's secret actions (since those that were discovered were declared Unconstitutional at the time) to justify Bush's secret actions. Lincoln was proven wrong. Roosevelt was wrong. Truman was wrong. Johnson was wrong and Nixon was wrong - it was just that Nixon was the first one since Lincoln that GOT CAUGHT RED HANDED - except of course, for Bush. Again, what "extreme lengths" has Bush gone to protect "civil liberties" other than stick a new rubber-stamp on an illegal program every 45 days?

Furthermore, Justice Taney declared that African-Americans weren't citizens, weren't human, were nothing more than property, and that they had no rights at all. According to Taney, a white man could walk up to an African-American and shoot him in the face and it would be perfectly legal, as the black man wasn't even human.

Yeah, that sucks (not that Taney literally said any of that from what I've seen) - he was, however, constrained by the Constitution as it was written at the time. And at the time the Constitution itself declared that black people were only equal to 3/5ths of a man. This didn't change until the ratification of the 14th Amendment in 1868, but even so how does this prove that Taney's decision was wrong on the habeas case?

He didn't have the ability to change the Constitution, only work within it it's flaws. Talk about irrelevant arguments.

So, and let me get this straight, the President can spy on enemy actions all he wants but the moment they cross onto American soil, suddenly he needs a warrant.

Yep, says so in the Fourth Amendment right here...

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This protection is neccessary or else the U.S. just might do some thing drastic and stupid like rounding up every Japanese person (even those who are U.S. Citizens) and sticking them in camps for their own "protection". Then we're likely to get all embarassed by what we did, apologize and have to pay them restitution.

Oops.

Too late.

When the Japanese bombed Pearl Harbor, spying on them required a warrant. When the South invaded Pennsylvania, spying on them required a warrant. When Al Qaeda sends enemy cells into the country to blow up the Pentagon and the World Trade Center, spying on them required a warrant.
So we can monitor the enemy everywhere in the world, but when they pose the most danger- when they have invaded the U.S.- suddenly we can't listen to them at all.
That's simply insane.

No, it's the law. It's the Constitution. All you need is "probable cause", and frankly that isn't impossible to achieve. Tens of thousands of warrant requests have gone to the FISA court in the last 27 years and every report indicates that they've only rejected a hand full. What is the problem? Just follow the law and everything is fine.

The Fourth Amendment stands, and frankly it was "informed" by the events of the Revolutionary War - it was informed by the actions of British Soldiers as they wantonly broke into the homes of Colonials.

The Fourth Amendment protection against "unreasonable searches and seizures" was adopted as a protection against the widespread invasions of privacy experienced by American colonists at the hands of the British Government. So-called "writs of assistance" gave royal officers broad discretion to conduct searches of the homes of private citizens, primarily as a way of discovering violations of strict British customs laws. This practice led to a unique awareness among our Founding Fathers of the threat to individual liberty and privacy that is created by unchecked government search powers.

Truth 2 Power Project

Vyan

Sunday, February 12

History of Presidential Wiretapping - Wingbats Ahoy Episode III

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