Posted on 02/16/2006 11:23:39 AM PST by hipaatwo
A federal judge dealt a setback to the Bush administration on its warrantless surveillance program, ordering the Justice Department on Thursday to release documents about the highly classified effort within 20 days or compile a list of what it is withholding.
U.S. District Judge Henry Kennedy said a private group will suffer irreparable harm if the documents it has been seeking since December are not processed promptly under the Freedom of Information Act.
The Justice Department failed to meet the time restraints under FOIA and failed to make a case that it was impractical to deal quickly with the request by the Electronic Privacy Information Center.
Justice Department spokesman Charles Miller said no determination has been made as to what the government's next step will be.
(Excerpt) Read more at cnn.com ...
Gotta cite?
Are you kidding? What do you think Sealed Case is about? It's a rejection of Truong's notion that the primary purpose test is constitutionally required. As often as you quote those two cases, you should know this already.
Incorrect, the In re: Sealed Case rejected the primary purpose test only within the context of a FISA surveillance. Since the comment you were replying to was speaking of a warrantless (i.e., non-FISA) surveillance, that holding of the In re: Sealed Case court, would have no applicability.
"[Truong] was an interpretation of the Constitution, in the context of measuring the boundaries of the President’s inherent executive authority...Even without taking into account the President’s inherent constitutional authority to conduct warrantless foreign intelligence surveillance, we think the procedures and government showings required under FISA, if they do not meet the minimum Fourth Amendment warrant standards, certainly come close."
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| [The Truong] analysis, in our view, rested on a false premise and the line the court sought to draw was inherently unstable, unrealistic, and confusing. The false premise was the assertion that once the government moves to criminal prosecution, its “foreign policy concerns” recede. As we have discussed in the first part of the opinion, that is simply not true as it relates to counterintelligence. . . . Moreover, by focusing on the subjective motivation of those who initiate investigations, the Truong standard...is also at odds with the Supreme Court’s Fourth Amendment jurisprudence which regards the subjective motivation of an officer conducting a search or seizure as irrelevant. . . . [T]he Truong court misconceived the government’s interest and, moreover, did not draw a more appropriate distinction . . . . That is the line drawn in the original FISA statute itself between ordinary crimes and foreign intelligence crimes.
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You can provide quotes from In re: Sealed Case all you want, but until you can provide a quote that shows their holding applies outside the context of the FISA statutes, and is applicable to the President's inherent constitutional authority, then all you have is window dressing.
Second, the FISA court is a "special court" and is therefore not a court superior to any U.S. District Court of Appeal (such as the Truong court). So contrary to what you claimed, the primary purpose test can not be said to be dead, even IF the In re: Sealed Case court had ruled in the manner that you falsely claimed.
Third, if the primary purpose test were dead, as you claim, then when I Shepardized the Truong I would have found that it had been overruled. I checked Shepard's citations and it hasn't been overruled.
Fourth, even if the primary purpose test were dead, as you falsely claim, it wouldn't materially change the conclusions I stated in # 176, and that you objected to in #190, as it would only change where the bar was set from "primary" to "significant" or to some other standard.
Try not be argumentative just for the sake of argument.
No kidding. It's the FISA review court; nothing it does extends beyond the context of the FISA law. I'm not claiming that the decision trumps Truong. I cited it because it explains rather clearly why the Truong analysis is not only wrong but also contrary to more recent 4th Amendment case law.
even if the primary purpose test were dead...it wouldn't materially change the conclusions I stated in # 176, and that you objected to in #190, as it would only change where the bar was set from "primary" to "significant" or to some other standard.
The primary purpose test isn't even relevant to your conclusion. You brought it up, not me.
The "bar" is set at *reasonableness*, not at primary purpose or significant purpose or any other such silliness. If a search is reasonable, it passes 4th Amendment scrutiny. And since the sole purpose of the exclusionary rule is to remedy 4th Amendment violations, if there's no violation of the 4th, there's no grounds to exclude evidence *unless* exclusion of evidence is mandated by statute.
The administration has emphatically stated that the NSA intercepts are reasonable. That means the intercepts don't violate the 4th Amendment. Any motions to suppress evidence on 4th Amendment grounds would therefore fail.
So you have to look for statutory grounds to exclude evidence since there's no 4th amendment grounds. The relevant statutes are FISA and the Wiretap Act (18 USC §2511 et seq.), and the President claims that his intercepts violate neither of those. That means there'd be no grounds for excluding evidence under either FISA or the Wiretap Act.
Which brings me back to my original point. If the President's claims are correct, your claim--that foreign intelligence information can't be used directly in a criminal prosecution--is wrong.
LOL, of course you did! Here are your words: "The primary purpose test is dead...What do you think Sealed Case is about?"
Until Truong is overturned, it is.
And the courts have held that what is reasonable conduct in one circumstance, may not be considered reasonable in another. What is reasonable for purposes of foreign intelligence surveillance, may not be reasonable for a criminal prosecution.
Incorrect, it depends on the purpose of the surveillance, whether for purposes of gathering foreign intelligence or for purposes of criminal prosectuon. You just can't allow your hatred of the Truong decision to continue to cloud your judgement like that. The court said what they said, learn to live with it.
When you clear up your errors and mistakes noted above, you will find no contradiction.
Sandy has the better argument going here, IMO. There has been no case yet to challenge Truong, so naturally your Shepardizing comes up empty. The "Gorelick wall" was an internal creation of the DoJ, adopted and wrongly enforced by the FISA court, in THAT context, that is, the context of undertaking investigation. And in THAT context, the wall is down.
As for how the wall being down plays out on a case-by-case basis in criminal prosecutions, we don't know yet. I will say that inasmuch as the information gathered is construed to be "foreign intelligence," the government will have free reign in evidence gathering. Long story short, I think the law remains to be settled on this frontier.
The NSA terrorist surveillance activity is an even more risky gamble - IF the plan is to use that evidence to secure criminal convictions. Still unsettled - but has -NO- stamp of approval form any court.
Slightly separate subject, have you read the binLaden case?
The Government urges that the searches at issue in this case fall within an established exception to the warrant requirement. According to the Government, searches conducted for the purpose of foreign intelligence collection which target persons who are agents of a foreign power do not require a warrant. The Defendant asserts that such an exception does not exist and should not be recognized by this Court.The Supreme Court has acknowledged but has not resolved this issue. See United States v. United States District Court (Keith), 407 U.S. 297, 321- 22 (1972). Circuit courts applying Keith to the foreign intelligence context have affirmed the existence of a foreign intelligence exception to the warrant requirement for searches conducted within the United States which target foreign powers or their agents.
See United States v. Clay, 430 F.2d 165, 171 (5th Cir.1970); United States v. Brown, 484 F.2d 418, 426 (5th Cir.1973); United States v. Butenko, 494 F.2d 593, 605 (3d Cir.1974); United States v. Buck, 548 F.2d 871, 875 (9th Cir.1977); United States v. Truong Dinh Hung, 629 F.2d 908, 913 (4th Cir.1980). . . . No court has considered the contours of such an exception when the searches at issue targeted an American citizen overseas.
US v. Usama Bin Laden, US Dist. Ct., S.D. NY, Dec. 19, 2000, 2000 WL 1858492
That's not a claim that the decision trumps Truong. What I'm saying is that 3 branches of our government are currently shoveling dirt on Truong's "purpose of the search" nonsense. You can't read Truong in a vacuum. You have to read it in light of today's politics and government, in light of the today's judiciary, and in light of current 4th Amd case law. Read Whren and some of the other recent 4A decisions cited in Sealed Case. The state and direction of the 4th Amd are drastically different from what they were 20 years ago.
But it is a claim that "The primary purpose test is dead" and it was killed by In re: Sealed Case. Now perhaps your choice of words was ill-considered, but those were the words you left me to respond to.
Which "nonsense" is a reflection of the government's argument - the Court said "primary purpose is okay" because the government argued that foreign intelligence was the primary purpose of the surveillance in question. The case doesn't define a lower boundary for "reasonable" passing of information across the wall, e.g., significiant or substantial purpose, because the Court didn't reject the passing.
Other than sharing evidence and guiding its collection, the "foreign intelligence/criminal" boundary still eludes my mental grasp. Except that the courts are trying to prevent purely foreign intelligence information (no warrant required) to be bootstrapped into probable cause that supports a criminal prosecution.
As a matter of granting FISA warrants (the scope of jurisdiction for the FISA courts), the primary purpose test IS dead.
The ramifications of that are laid out in some detail, in In re Sealed Case. The courts are limited in how much they can monkey with minimization procedures, etc. where a significant purpose of the surveillance is foreign intelligence.
How that plays out in a [future] criminal case where the warrant itself may be called into question, who knows.
Since the discussion you, I and Sandy have been having has been about warrantless surveillance, your point about FISA warrants is not very relevant.
Since the discussion you, I and Sandy have been having has been about warrantless surveillance, your point about FISA warrants is not very relevant.
The point was meant to separate the universe of argument into "FISA" and "not-FISA", because many of the statments made in the debate turn on that distinction. It was my impression that perhaps your "differences" with Sandy related to an unstated assumption, and if that was the case, the argument could be advanced by stating it.
Since the discussion you, I and Sandy have been having has been about warrantless surveillance, your point about FISA warrants is not very relevant.
And on rereading your recent exchange (i.e., from post 200, down), I see the assumption [FISA/not-FISA] stated several times - I guess I miss the exact point you guys are arguing about. Sorry about that.
Boot Hill: Since the discussion you, I and Sandy have been having has been about warrantless surveillance, your point about FISA warrants is not very relevant.Here's the deal. Cboldt, you asked Boot Hill which foreign intelligence information would be admissible at trial (presumably talking about NSA info), and Boot Hill answered that none of it can be used directly in a criminal prosecution. Then I jumped into the thread to correct him, and Boot Hill responded by bringing up Truong's "primary purpose" rule and saying, "The only use the warrantless intercepts could play in a criminal prosecution, would be in drafting the probable cause affidavit, necessary for obtaining a criminal warrant."Cboldt: The point was meant to separate the universe of argument into "FISA" and "not-FISA", because many of the statements made in the debate turn on that distinction. . . . I guess I miss the exact point you guys are arguing about.
I then said, "The primary purpose test is dead." and "If the intercepts don't violate the 4th Amendment or FISA or the Wiretap Act, there is no legal ground for excluding any evidence obtained," essentially just clarifying my earlier point which (again) is that courts don't exclude evidence unless the evidence was collected in violation of either the 4th Amd or a statute. Now that's a fact (and my main point), but Boot Hill pretty much ignored it and decided to talk about my statement regarding the primary purpose test.
So at that point, Cboldt, your comments weren't the least bit off-topic. Boot Hill, it was you who went off on the Truong tangent in the first place, not me and not Cboldt.
The thing you're missing, Boot Hill, is my original point, which has nothing to do with Truong or the primary purpose rule. The administration has claimed repeatedly that the NSA intercepts are "reasonable". What's important is this: The administration is using the word "reasonable" specifically *because* by law "reasonable" equals Constitutional. Essentially, the administration is saying that the NSA program will survive *any* test the Court decides to throw at it, whether it's the primary purpose test or the finger-in-the-wind test or whatever.
Now as far as I can tell, you don't think the administration is wrong at all. In fact it seems to me that you've been trying quite vigorously to *defend* the administration. Which is why your original statement ("None of it can be used directly in a criminal prosecution.") makes no sense unless you're doubting the administration's claims or unless you weren't aware that courts don't exclude evidence obtained in compliance with the 4th Amendment unless such exclusion is mandated by statute.
I don't know what to tell you Sandy, other than you've got a very convenient memory as your quotes above clearly show. (Not to mention that you were also clearly in error when you claimed, "the primary purpose test is dead".)
Again, you seem to enjoy a very convenient memory, and one that's at odds with the above quotes. If you had some other point to make, you certainly managed to obscure it well through a poor choice of wording.
Good grief, you're only just now getting that? After all our posts on other threads?
I was having a "senior moment" when I posted that and I didn't pick up on my error till I read a link that Cboldt kindly posted to the U.S. v. Usama case. I appreciated Cboldt's subtle reminder of that fact.
In retrospect, I feel my reply to you was unnecessarily ambiguous and I wish to expand it a bit.
I believe the President's position is 100% correct in regards the NSA spying controversy. Not because I blindly support the man, that I voted for twice. I support him because the law, the Constitution, (distinguished for emphasis), the history of the presidency, the intent and history of the founding fathers, we well as the realities involved in guarding the national security of this country from foreign threats, puts the President, not just on solid ground, but on rock-hard granite, both legally and politically.
Since, virtually every court that has ever addressed this matter over the last 30 years, both pre-FISA and post-FISA, and notably including even the FISA court itself, has concluded that the President does have the inherent constitutional power to conduct warrantless surveillance to obtain foreign intelligence information, there can be no serious debate as to the present existence of that Presidential power.
No, what I have is a wheel on my mouse which lets me scroll back up to previous replies to read what was actually written. :-) See your first reply to me, #197, which is 4 or 5 paragraphs about Truong and primary purpose.
Here's what happened. I said,
The primary purpose test is dead. If the intercepts don't violate the 4th Amendment or FISA or the Wiretap Act, there is no legal ground for excluding any evidence obtained.And you read that (incorrectly) as if it said,
The primary purpose test is dead. Therefore, if the intercepts don't violate the 4th Amendment or FISA or the Wiretap Act, there is no legal ground for excluding any evidence obtained.But all I was saying there (incomprehensibly, apparently) was that the primary purpose rule is history (i.e., irrelevant to my comment, which I then reiterated). But then you asked why I thought the primary purpose test was dead, so we went back and forth on that topic a couple of times before I tried to get you back to my original point. (See reply #206, where I said, "The primary purpose test isn't even relevant to your conclusion. You brought it up, not me." That's me trying to get you back to the point of my original comment.) But you responded with still more carping about Truong (including a comment about my supposed hatred of Truong or somesuch nonsense). I think I gave up at that point.
(As if the truth of the second sentence depended on the truth of the first sentence.)
Maybe a paragraph tag after my "primary purpose test is dead" statement would have spared us this waste of time. Whatever.
I was having a "senior moment" when I posted that
No kidding.
Oh good grief. You're still focused on nothing but the (settled) 4th Amendment question and totally ignoring the (unsettled) separation of powers question. The important point that you don't get is that "inherent" does not mean "exclusive". If you grasped that one simple fact, you'd understand why there *is* serious debate about this issue.
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