Grounds on Unconstitutionality of Wiretapping - Research Paper Example

? Wiretapping and Controversies Surrounding Terrorism in the USA of Relaxed Limits on Law Enforcement Searches /Wiretapping/Seizures in Recent Years in Cases Related To Terrorism in the US Introduction Even though there are anti-terrorism measures to prevent insecurity in the USA, there are many challenges, such as relaxed limits on law enforcement services and wiretapping controversies. Wiretapping majorly is the electronic surveillance or monitoring of persons within US and beyond borders suspected of being affiliated with terrorist groups. This is done through the collection of foreign intelligence that can help the security agency of the United States to curb terrorism related criminals. Security measures have been taken into consideration because both internal and border security is a great problem, not only for US ,but has also raised international participation on the illegality of terrorism. Reason being that terrorism levels have increased in many parts of the world specifically both in large cities and big trading centers. The general feeling is that crimes are committed by the non citizens of a given state and this has also called for immigration laws to enhance restriction of inflow of aliens suspected to be terrorism. The US security agency had the mandate through the executive to monitor communications without any warrant of search on all the phone calls, communication through internet via email messages, text messages and other related interactive communications, linking any person with anybody outside the nation (U.S. Department of Justice, 2006). There are legal concerns on the use of wiretapping in which it must be warranted through a court system, in a proceeding presided by three judges. The court system came into existence through Foreign Intelligence Surveillance Act (FISA). The USA borders have also been put under security surveillance due to its prone to terrorism threats because it is an entry point to both human and cargo. Grounds on Unconstitutionality of Wiretapping FISA act was in place until 11th. September when there was the US terrorist attack that led the congress to enact Patriot act (Lichtblau, 2008). The patriot act granted the then president powers for fighting terrorism. The former president George W. Bush utilized the given powers in bypassing FISA courts and then directed the National Security Agency (NSA) to have direct spy on al Qaeda networks (U.S. Department of Justice, 2006). In the process of executing the surveillance program electronically, there were several reports, which indicated some accidental interception of information on domestic communications of US citizens. The hitch raised a lot of concerns by various groups, which led congress in declaring the process as unconstitutional. The debate on the constitutionality of the program went on with several legal concerns that US citizens raised. Wiretapping affected even the fiber optic information systems, network traffic from corporate privates, the emails and internet browsing communications. More critics came up with opposing arguments that such activities required legal authorization of FISA. However, the Bush administration said that the interceptions were not domestic and were just integrals on foreign intelligence on conducting war and the claims, FISA warrant requirements were superseded by passage of AUMF (Authorization for Use of Military Force against Terrorists). The FISA provisions indicated that it was illegal for one to be engaged in electronic based surveillance due to the existence of the acted law (Nakashima, 2007). Contravention on the law attracted a fine of $10,000 or be sentenced for a five year period in the prison when one has intentionally disobeyed the act. Authorization for Use of Military Force against Terrorists (AUMF) Congress passed the AUMF, in which the president had all the powers to authorize any appropriate and necessary force against any group, country, or persons aiding the terrorist attack on America. The American administration argued that the powers implicitly allowed the president to advice for waging of war, including collection of intelligence report through wiretapping whereby provisions of FISA not withstanding (Director of Administrative of Justice, 2010). This allowed for wiretapping and the public through championing groups condemned the act. The criticism went on even in the congress where senators argued that the provision AUMF did not warrant any domestic surveillance from citizens of the United States. In 2006, the senator Patrick Leahy a member of the judiciary committee introduced S. Res 350, a joint senate resolution 23 (107th Congress) which was adopted on 14th September 2001 and supported the general opinion on the illegality of public surveillance through wiretapping (Lichtblau 2008). However, the resolution was not debated on and consequently no vote was done to make it a binding resolution. Legal Controversies on .the Surveillance The national security agency surveillance had legal controversies that were sub-divided into two categories: the constitutional law and statutory interpretation. Constitutional law majorly, is a body responsible for the interpretation of constitution of the United States. It covers areas like the link between the state government and the federal government. In this relation, rights of the citizens and other basic aspects in areas of application of the government authority are noted in the administration system of the United States (Nakashima, 2007). The statutory interpretation is a given process of interpreting a specific case in the law. According to Justice Louis Brandeis who presided in the case of Olmstead vs. United State government, No. 277 U.S. 438 (1928), it was considered that privacy violation is an evil incident even if it is through telephone conversation, tapping of information from personal messages (Chip, 2007). This is according to the constitutional law of the United States of America (Chip, 2007). The privacy of both the persons interacting is invaded because information from both parties is obtained by the intelligence service. General warrants which support the issue are puny instruments that are tyrannical laments the judge. This surveillance process was important in determining the terror suspects, but it was limiting on privacy of an individual. Issues on Constitutional Law There are several constitutional debate made on authorization of these warrantless surveillance, which is basically on the struggle for power separation known as the “checks and balance.” For instance, in cases where there is no fair interpretation of FISA, then probably it can be taken as a satisfactory provision whereby the matter would have to be decided on at the given appellate level by US courts of appeal. In such power separation dispute, there must be proof by the congress in establishing supremacy on the matter. The executive arm enjoys the authority until such a time that the Appellate Court makes a ruling. Protection of Non Citizens by Electronic Privacy Act From the appeals court of the federal system, the ruling that the appeal judge made clearly showed that all non citizens or foreign citizens are protected by the Electronic Communications Privacy Act (ECPA). In relation to this act, there is protection of consumer data, irrespective of the nationality of the consumer. The companies cannot disclose to NSA or any third party information on any private communication with the consumer (Chip, 2007). This enables the consumer protection and consequently, business information is taken care of. Specific case in this scenario is that Microsoft Company objected to the request by the NSA to release information on Hotmail email of Rajagopalan Sridhar who was an Indian Citizen. The ruling of the court was made in respect of the ECPA and that the company rightfully refused the access of the information. The information referred to is of electronic, wire and oral communications. The director of the Administrative Justice of US gave a report on the wiretapping and how the justice system had applied the law in relation to specific cases brought before the courts. Report On Requirements on the Statute and Surveillance Permission Criteria In determining the cases, each state and federal judge is entitled to file a written report to the administrative office of the US courts on the court order that legally allows the interception of the information. For criminal investigations, there are legal interceptions that help to prevent criminals who are dealing in either drags or are planning terrorist activities. This does not spill to any other US citizen who is not under investigations by the National Security Agency. The details of the report written to the Administrative justice on the acceptance of any wiretapping incidences must include the name of prosecuting officers who want to do the investigations on the suspected criminals, the offence under investigation, the description of the interception device requested for, the location of the suspect with the device and finally duration of doing the interception (Savage & Risen, 2010). All these conditions ensure that only the legal interceptions are allowed and the conditions prescribed for the same is procedural and straight to ensure no unwarranted surveillance is carried out. The United States’ Attorney General is one of the officers whose request must be presented before a federal court to allow for investigations through wiretapping. The Attorney General is one of the prosecuting officials with statutory authority in such cases at the state level. The compiled report to the Administrative officer in the United States federal government must contain information on the cost of the interception as some may be very high to the government, the total number of interceptions made by the relevant investigating authority and the number of incriminating intercepts. Intercept Orders and Extensions Intercepts have occurred in the United States regarding the wiretapping cases, and this has been reported based on certain jurisdiction orders. Tracing of terrorists is done by almost all the US security intelligence team to curb strange communications that pose threat to the Federal State. In regard to this, the report on the administrative from of the director of administrative office clarified on the interception and extension orders. In the year 2010, average length for wiretapping was 29 days same as the previous year 2009. There were total extensions of 1,925 that were requested and finally authorized. Intercepts may take longer time depending on the technicality of the crimes which is under investigation. For instance in 2010, the longest intercept took place in Southern District of California. The extension was to enable effective investigation in the Narcotic drug cases, which granted total of 210 days for intelligence work (Savage & Risen, 2010). In addition, there was an extension of 330 days Alaska District for investigation of corruption cases. In yet another case, there was the longest wiretapping intercept for 559 days in New York specifically Queens County. This was to investigate on the Narcotics since it is a crime to deal with such hard drugs (Savage & Risen, 2010). In most cases, wiretapping involved portable devices which include digital pagers and cellular phones. These portable devices have become the main target for the national security intelligence agency. In the process of tracking criminals and terrorists, a total of 3,053 authorized wiretaps were of digital nature. This represented 96 percent of total surveillance through the wiretap. In the Electronic Communications Privacy Act 1986 and the Intelligence Authorization Act of 1999, give prosecutors powers in that upon showing any probable reasons in believing that the party under investigations is avoiding intercepts, then use of roving wiretaps is applied to trap the suspects. This involves the usage of electronic devices located at multiple places. In respect to this, in 2010 there were seventeen authorized state roving wiretaps and one federal roving wiretap. The US government had only admitted to put on surveillance emails and calls where one party is suspected to be a terrorist. However, there were some illegalities into tapping domestic information network. The program on terrorist surveillance had more intelligence activities spread all over in order to trap illegal terrorist acts. Domestic and Foreign Intelligence on Surveillance The arguments on the legality issue of National Security Agency is in two categories, whereby there are those noting that FISA has no constitutional issues which then makes NSA program illegal. There are also those who argue that FISA had constitutional conflict which can only be solved in favour of the congress (Director of Administrative of Justice, 2010). The administration take that the exception on requirement of the normal warrant exists when main purpose of the designed surveillance is to prevent any attack that may come from foreign threat. When both the target persons are deemed to be domestic, then there is an exception on warrantless surveillance. Terrorists are tracked down through this technology of wiretapping surveillance and this had resulted in some benefits for the country, even though there are many challenges on the application of this warrantless surveillance. Benefits from Use of Wiretaps or Electronic Surveillance Terrorist actions are limited though there are still cases of insecurity, and this mainly happens due to an unauthorized surveillance on the electronic communications. However, in many cases there are criminal offences that have been trapped through this. Drug offences were the most prevalent criminal activities. Investigations via wiretap have also revealed that Homicide was second most cited crime that could encourage terrorist action against the USA. The Citizen’s Right to Sue It had been noticed that the federal government made it very difficult to take legal action against the warrantless wiretapping. Since the wire taps were made secretly, no person could actually know that it is tapped. The government had asked the judges to ignore the law suits by the public against warrantless wiretapping due to the ignorance of the public. Most championing group movement and keen citizens however noted their fundamental right violation. They then tried to sue the government based on the privacy violation and personal business information concerns (Nakashima, 2007). However, recently the federal appealed to support of the case brought before the court by the journalism group and liberties, made ruling by reinstating the law suit that had the district federal court had thrown out in 2009. They decision might legally lead to reviewing the statute. The law to be reviewed was an amendment in 2008 on the Foreign Intelligence Surveillance Act. This amendment authorized the then president George W. Bush to allow the wiretapping program without any court warrant on suspected terrorist groups or persons. The telephone companies that cooperated in the wiretapping were also immunized by this act. The human rights groups and media organization challenged the law through American Civil Liberties Union (ACLU). They stated that their communication process would be monitored under the law since the nature of their work involved communicating with the clients from within and abroad. However, the government remained adamant and wanted proves that there was intelligence monitoring taking place. The Previous Court Cases on Wiretapping The records on cell phone surveillance could be accessed after circuit court of District of Columbia ruled that the justice department produce records on the surveillance information of all the cell phones. This was as a result whereby the American Liberty Union filed to access information through the act on freedom of information provision. They wanted this to confirm cases whereby the government through the National Security Agency had accessed private information through cell phone surveillance without warrant. However, the Agency declined the request quoting that it if it released the cell phone data, this could jeopardize the ongoing investigations. In contrast, the court ordered the release of the information quoting that disclosure by the government would create awareness on the ongoing discussions on the public policies. The ruling is majorly, to ensure enough measures are taken to curb terrorist activities in most parts of the United States by making the required information confidential to the public. In another case which was filed by private citizens, the ruling of the judge was that collection on Google Street violated wiretap Act (Director of Administrative of Justice, 2010). The collection of Wi-Fi data by Google was declared illegal process because this constituted violation of private information. It is also the issue of private information which is the main challenge that prevents wiretapping implementation. Foreign Intelligence Surveillance Act (FISA) Effectiveness on War against Terrorism In 2005, US department of Justice Deputy Attorney General on Legislative Affairs by the name of William Moschella was able to write a defending letter on NSA to officials of the United State senate and House of Representatives. First of all, the president reacted that it was necessary because surveillance can prevent terrorist. The argument is that FISA was unable to give speed and alertness needed for prompt warning. It was also a concern that any other legislative change apart from AUMF could create an early public awareness including the enemies. US government always makes use of FISA in addressing terrorist threat. This is one of the reasons why the act could not be changed. FISA is a crucial instrument tool suitable for long term investigations. Furthermore, the United States is assessing available legal choices in order to take advantage of any new law developments. The District judge of US Dee Benson clearly stated that it was not clear why the emergency authority of FISC could not meet the need of US administration to act quickly. In this respect, it is very evident that the court was concerned about the truth on the sources of information about terrorism suspects (Nakashima, 2007). Due to this concern of the court, many individuals have raised divergent views on the possibility of authorization issue. In this regard, amendment of FISA is needed in order to address foreign intelligence requirements. In relation to the current situation where there is technological developments including very advanced intelligence gathering mechanisms, there is need for law alteration to allow for programs that can effect new automated intelligence surveillance on the communication process of foreign terrorists. This would be one of the ways of strengthening the fight against terrorists. This may be used legally to reinforce FISA on its warrants. Judge Richard Posner rooted for FISA but indicated that it ought to retain values as a means of monitoring terrorists’ communication network. As a framework of detecting terrorists, FISA is to be amended in order to execute this effectively (Savage & Risen, 2010). Surveillance through the wiretapping should only be done in condition that the targeted party is associated with terrorism acts. The real terrorists must be tracked to avoid confusions that could still course anxiety on the domestic citizens of America. As away of intensifying the war against terrorism, there is need to have a new act on surveillance that will give detailed report on the possible terrorists’ spots. FISA had become inadequate and could not address new tricks of terror suspects. During the investigation process on the September 11 bomb attack on US, according to Coleen Rowley who was a special FBI agent, FISA had procedural obstacles that even hampered investigations of FBI (Savage and Risen, 2010). These sentiments were presented to the commission which was investigating the terrorist attack (Morrison, 2006). Some of the technicalities observed were requirements of detailed information and continuous confusion of field detectives. There was complexity on application of FISA act because there was requirement on the link to a given foreign power and the probable course of the cases as required by Foreign Intelligence Surveillance Court (FISC). In addition, the warrant applications of FISA are detailed and very complex (Nakashima, 2007). This could not enable possible unearthing of the truth on terrorism attack and therefore the warranted intelligence surveillance could not bore more fruits. Threat Assessment Memoranda Supporting Authorization of PSP (Presidents Surveillance Program) The CIA prepared the memoranda that supported authorization of President Surveillance Program (PSP). In the memoranda, there were documentations of all the intelligence assessments on all the terrorist threats to the United States and its links abroad. The al- Qa’ida networks and its affiliated groups were some of threats that could possibly harm the US. The assessment was done after 45 days just to correspond with the authorization by the president on the PSP. The Director of Central Intelligence (DCI) was in charge of preparing the assessment memoranda. The memoranda were to provide detailed information on terrorist threats through proper analysis of information that was drawn from all intelligence sources (Presidential Speech, 2006). In the assessment, the DCI incorporated additional information that all the organizations and individuals facilitating global terrorism activities had the ability and intention to launch terrorist attack in United States. However in the year 2003, there was establishment of Terrorist Threat Integration Center (TTIC) (Savage & Risen, 2010). This center had the mandate to take up the assessment program memoranda in order for the states to have sufficient mechanism of proper surveillance in respect to (PSP). Legal assessment of Presidents’ Surveillance Program Even though the surveillance program initiated by the president was useful in tracking down information on terrorism, there were legal issues that became hurdles in the process. Chapter 4 of DOJ report described the period between 2003 and 2004 when DOJ identified that some aspects of PSP were not according to the law (Director of Administrative of Justice, 2010). As an example, provision of FISA prohibited persons from intentional engagement on electronic surveillance unless authorized by the same statute number: 50 U.S.C. S 1809 (a). However, this provision was omitted consequently allowing warrantless interception of all the electronic communications for 15 days on declaration of war by the Congress, provided in 50 U.S.C. Section 1811. US senators had asked for updates on the private federal law which consequently led Attorney General to give confirmation on Sony investigations. In the oversight hearing of the justice department, Judiciary chairperson urged the Congress to facilitate enactment of bipartisan privacy data including the security act. The senate chairman reiterated that personal information on mobile and other electronic information of the individuals is not legalized. This constituted to sensitive private information and denies domestic citizens freedom of their opinion. The attorney general was then asked through the senate to cooperate with the congress on giving updates on the Electronics Communication Privacy Act (Presidential Speech, 2006). Other concerns were also on federal laws which were to be scrutinized so that the nation could protect her citizens as well as not breaking any law on the same. In additional legal battles on the wiretap information complications, it was also a concern for privacy of routers owned individually. The federal judge questioned on the private Wi-Fi conversations which was also electronic surveillance (Sanger, 2006). The terrorist attack was prevented by all means and this was also applied in the tracking system even though its legality was a concern to both the public and the judges. In Wireless Local Area Network (WLAN), this could only provide communications between persons within their homes and was not liable for interference or tapping of their communication by the spying agency (Director of Administrative of Justice, 2010). In an effort to prevent crimes on terrorist attacks on US, the government forced a service provider company to disclose about 27,000 electronic mails without any court warrant. The government action acted according to a legal act which could allow such surveillance. In contrary to the government stand, the court ruled against the government move citing that email messages are protected under privacy laws on electronics. Wiretaps Combination with Personal Credit Card Information In an effort to gather intelligence information through wiretapping, private data information of the US citizens was captured on the electronic surveillance (Edward, 2005). The National Security Agency had a spy on journalists, news agencies and many thousands of domestic communications of the persons in the US (Savage & Risen, 2010). In the operations, the spy team combined wiretap information with credit card data in addition to some financial records of the US citizens. This could possibly link the innocent persons with the terror group sometime in the future because of the justification of the mined initial data hence one could easily be included in the database of the spy agency. Separating Powers and Unitary Theory Administration of United States a firms that the constitution allowed for the warrantless surveillance within its borders. It is also by statutory exemption because due to its advocacy by the theory of Unitary Executive. By using certain interpretations, the argument is that the president has a strong authority to command searches through warrantless surveillance in order for the United States to obtain intelligence information (Edward, 2005). This could effectively prevent terrorist activities that can cause death to innocent citizens. The law enforcement searches could just be limited due to the security concern. The president as the chief commander of the armed forces has got full responsibility in defense of the country (Sanger, 2006). Therefore, he has all the authority to prevent aggressive acts without directive of the congress and also without court obstacles so long as the action is reasonable enough to defend United State. In a ruling by the Supreme Court, the judge clarified that the rights of the citizens must be put forth when the country is in war with terrorists and that it could not become a check point for the president when he acts for the interest of the nation. This enables endless fight against terrorists that endanger the nation. Conclusion The nature of the complexity of terrorist plans made the United States to design measures that could be taken in order to prevent any attacks on her citizens. There was the formation of FISA which could provide for court warrant before any electronic surveillance was done. After the terrorism attack in America in September 11th 2001, the president of the United State spearheaded the formation of presidents’ surveillance program (PSP) to give information on terror movements by tracking electronic communications of the persons within US borders. PSP gave powers to the president and electronic surveillance could be done by the national security agency without any warrant of the court. The intercept orders raised concerns to the congress and other organizations. Due to the unwarranted surveillance through wiretapping, several bodies moved to the court seeking for the court to declare the action illegal. FISC was formed to preside over the issues surrounding the intelligence surveillance. However, under separation of powers and unitary theory, the argument came out that the president had all the powers to safeguard security of the nation by preventing any possibility of attack by the terrorists. In addition, the court declared that congress had powers which could regulate domestic surveillance but hesitated on the action on the foreign intelligence electronic surveillance. In the interest of national security, the terrorism attack could be prevented through application of the surveillance act even though there are legal limits to these laws enforcement searches. References Chip, P. (2007). The End of Illegal Domestic Spying. Washington, DC: Spec. Director of Administrative of Justice (2010). Wiretap Report. Washington DC: Article report. Edward, L. (2005). “Warrantless Wiretapping” Why It Seriously Imperils the Separation of Powers. New York, NY: McGraw-Hill. Lichtblau, E. (2008).”The Education of a 9/11 Reporter”: The inside drama behind the Times warrantless wiretapping story. Slate. Retrieved 2008-03-31. Morrison, T. (2006). Constitutional Avoidance in the Executive Branch. Columbia: Columbia Law Review. Nakashima, E. (2007). “AT&T Plaintiffs Cite McConnell Remarks". Admission of Telecom Firms' Involvement in Warrantless Wiretaps Sought as Evidence. Washington: The Washington Post. Presidential Speech (2006). The White House. Kansas: President Discuss Global War on Terror. Kansas: Kansas State University. Sanger, E. (2006). White House Begins New Effort to Defend Surveillance Program. New York, NY: The New York Times. Savage, C. & Risen, J. (2010). Federal Judge Finds N.S.A. Wiretaps Were Illegal. New York, NY: The New York Times. U.S. Department of Justice (2006). White Paper on NSA Legal Authorities: Legal Authorities Supporting the Activities of the National Security Agency Described by the President. New York, NY: Times. Read More