Originally posted by: eskimospy
Originally posted by: SP33Demon
I meant retroactive immunity from frivolous lawsuits like the one in the OP that seeks to condemn the government (NSA). It shows that courts take matters of national security seriously and won't retroactively allow any similar trial of government agencies or telecoms that complied. You act like safeguards weren't in place to prevent "vast, unchecked executive power" of illegal wiretapping when the court proceedings from last August say otherwise. Your example of the al-Haramain case could have been technically illegal at the time (excluding Article II grey areas which it would be legal under) but it's legal now:
The Office of Foreign Assets Control of the United States Department of the Treasury had already banned various branches of this organization at various times, including the US branch on 9 September 2004[2]. Under various names it had branches in Afghanistan, Albania, Bangladesh, Bosnia and Herzegovina, Comoros, Ethiopia, Indonesia, Kenya, the Netherlands, Nigeria, Pakistan, Somalia, Tanzania, and the USA.[1]
The American branches of this foundation were in Ashland, Oregon and Springfield, Missouri. Two directors of those branches, Suliman Al-Buthe ( ?????? ?????? ) and Aqeel Abdul Aziz Al-Aqil ( ??? ??? ?????? ?????? ), are now personally embargoed worldwide by the UN.[1]
If any of these men had communication with any of the international branches then the NSA had a right to wiretap them if they were deemed a threat to national security. Without a warrant at the time it could have been a violation of their 4th Amendment rights but Bush could have easily said he authorized it using Article II powers. Still a grey area, and I'm glad the NSA won't need a warrant in the present for people like this (ties to AQ).
Your post contradicts itself. You admit that wiretapping that 'could be technically illegal' was conducted, but then say there were safeguards in place to prevent this vast unchecked executive power. The ONLY reason anyone knows about this likely illegal wiretaps is because the FBI was so stupid as to disclose a classified document that showed them committing what were quite possibly crimes. Had the FBI handled its documents well there would never have been a case at all. So, how are there safeguards to prevent this?
As for the Article II grey areas, they rely on nearly the same rationale of the Yoo memos that declared torture legal. That is... not very grey. And who cares if it's legal now?! That's my entire point. The executive branch was probably committing dozens or hundreds of felonies, and doing so on purpose. Doesn't that bother you?
Just because safeguards were in place doesn't mean that rights weren't technically violated. In Layman's: technically, the wiretaps at the time
could have been illegal by violating the Fourth Amendment (but not illegal now) simply because it wasn't defined (to bypass the 4th due to National Security involving foreign entities).
Technically, during the Bush admin due to this grey area. However, we learned from the Foreign Intel Surveill Court ruling in August that they did in fact have safeguards in place to prevent what you feared most: "vast, unchecked, executive power". If you scroll up, I bolded it from the ruling:
[onto page 21 - top of page 22] The government rejoins that the PAA, as applied here, constitutes reasonable governmental action. It emphasizes both the protections spelled out in the PAA itself and those mandated under the certifications and directives. This matrix of safeguards comprises at least five components: targeting procedures, minimization procedures, a procedure to ensure that a significant purpose of a surveillance is to obtain foreign intelligence information, procedures incorporated through Executive Order 12333 2.5, and [redacted text] procedures [redacted text] outlined in an affidavit supporting the certifications.
This is obviously knowledge that was kept secret and only for people with a need to know. So even though safeguards did exist in the Black World (i.e. classified realm), the Bush admin actions still technically violated the 4th Amendment with the botched FBI handling
due to an undefined set of laws at the time.
Today, beyond a shadow of a doubt, that Al-Haramain case wouldn't even need a second look under current laws. Even though the Bush admin was the worst in history, they were right on this policy IMO. It's simple: if a US citizen is communicating with a foreign entity involving national security, they forgo their 4th Amendment rights and
will be investigated which could include wiretapping. This is now public knowledge with FISA 2008. Personally, I have no problem with this law because FISC has shown that in the least: five safeguards have to be proven before wiretapping can even begin. In addition, it's very possible that the NSA is regulated by other agencies but we don't know about it. And it should be safe to say that FISC isn't going to grant frivolous warrants. Could abuse happen because it's classified national security? Yes, it's possible but unlikely.
With regards to FISA, the executive branch may have been authorizing these "felonies" in which you are technically right (they were felonies). This was because the law had not been defined to make that action legal. Just like the information boom with the internet, many crimes happened before the law was defined. For example, schill bidding on eBay was a popular pastime in the first 3 years or so it came out. It was technically legal at the time, just like downloading music off Napster. Today's law says that those actions are illegal. It was just the opposite with wiretapping Americans who had foreign communication involving national security: it was technically illegal at the time but now legal. Like Daveschroeder said: it wasn't a political issue (Bush, Obama) but an intelligence policy issue that had to be redefined in a new era of technology and security. FISA was simply outdated and needed to be revised (i.e. FISA 2008).
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