What the Judge actually said regarding the NSA spying program. Why doesn’t the press care?

IV. The History of Electronic Surveillance in America

Since the Court’s 1967 decision of Katz v. U.S., 389 U.S. 347 (1967), it has been understood that the search and seizure of private telephone conversations without physical trespass required prior judicial sanction, pursuant to the Fourth Amendment. Justice Stewart there wrote for the Court that searches conducted without prior approval by a judge or magistrate were per se unreasonable, under the Fourth Amendment. Id. at 357.

Congress then, in 1968, enacted Title III of the Omnibus Crime Control and Safe Streets Act (hereinafter “Title III”) ⁽²⁴⁾ governing all wire and electronic interceptions in the fight against certain listed major crimes. The Statute defined an “ aggrieved person”, ⁽²⁵⁾ and gave such person standing to challenge any interception allegedly made without a judicial order supported by probable cause, after requiring notice to such person of any interception made. ⁽²⁶⁾

The statute also stated content requirements for warrants and applications under oath therefor made, ⁽²⁷⁾ including time, name of the target, place to be searched and proposed duration of that search, and provided that upon showing of an emergency situation, a post-interception warrant could be obtained within forty-eight hours. ⁽²⁸⁾

In 1972 the court decided U.S. v. U.S. District Court, 407 U.S. 297 (1972) (the Keith case) and held that, for lawful electronic surveillance even in domestic security matters, the Fourth Amendment requires a prior warrant.

In 1976 the Congressional “Church Committee” ⁽²⁹⁾ disclosed that every President since 1946 had engaged in warrantless wiretaps in the name of national security, and that there had been numerous political abuses ⁽³⁰⁾ , and in 1978 Congress enacted the FISA. ⁽³¹⁾

Title III specifically excluded from its coverage all interceptions of international or foreign communications; and was later amended to state that “the FISA of 1978 shall be the exclusive means by which electronic surveillance of foreign intelligence communications may be conducted.” ⁽³²⁾

The government argues that Title III’s disclaimer language, at 18 U.S.C. § 2511(2)(f), that nothing therein should be construed to limit the constitutional power of the President (to make international wiretaps). In the Keith case, Justice Powell wrote that “Congress simply left Presidential powers where it found them”, that the disclaimer was totally neutral, and not a grant of authority. U.S. v. U.S. District Court, 407 U.S. at 303.

The FISA (act) defines a “United States person” ⁽³³⁾ to include each of Plaintiffs herein and requires a prior warrant for any domestic international interception of their communications. For various exigencies, exceptions are made. That is, the government is granted fifteen days from Congressional Declaration of War within which it may conduct intercepts before application for an order. ⁽³⁴⁾ It is also granted one year, on certification by the Attorney General, ⁽³⁵⁾ and seventy-two hours for other defined exigencies. ⁽³⁶⁾

Those delay provisions clearly reflect the Congressional effort to balance executive needs against the privacy rights of United States persons, as recommended by Justice Powell in the Keith case when he stated that:

Different standards may be compatible with the Fourth Amendment if they are reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.. U.S. v. U.S. District Court, 407 U.S. at 322-323.

Also reflective of the balancing process Congress pursued in FISA is the requirement that interceptions may be for no longer than a ninety day duration, minimization is again required ⁽³⁷⁾ , and an aggrieved person is again (as in Title III) required to be notified of proposed use and given the opportunity to file a motion to suppress. ⁽³⁸⁾ Also again, alternatives to a wiretap must be found to have been exhausted or to have been ineffective. ⁽³⁹⁾

A FISA judicial warrant, moreover, requires a finding of probable cause to believe that the target was either a foreign power or agent thereof, ⁽⁴⁰⁾ not that a crime had been or would be committed, as Title III’s more stringent standard required. Finally, a special FISA court was required to be appointed, of federal judges designated by the Chief Justice. ⁽⁴¹⁾ They were required to hear, ex parte, all applications and make all orders. ⁽⁴²⁾

The FISA was essentially enacted to create a secure framework by which the Executive branch may conduct legitimate electronic surveillance for foreign intelligence while meeting our national commitment to the Fourth Amendment. It is fully described in United States v. Falvey, 540 F. Supp. 1306 (E.D.N.Y. 1982), where the court held that FISA did not intrude upon the President’s undisputed right to conduct foreign affairs, but protected citizens and resident aliens within this country, as “United States persons.” Id. at 1312.

The Act was subsequently found to meet Fourth Amendment requirements constituting a reasonable balance between Governmental needs and the protected rights of our citizens, in United States v. Cavanagh, 807 F.2d 787 (9^th Cir. 1987), and United States v. Duggan,743, F.2d 59 (2d Cir. 1984).

Against this background the present program of warrantless wiretapping has been authorized by the administration and the present lawsuit filed.