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A Closer Look At Electronic Surveillance

Wednesday, December 21, 2005

In my ongoing investigation of what is fact and what is fiction concerning the recent revelation of the President's authorizing surveillance of American citizens, I want to look at the jurisdiction of the court in these matters. A good friend of mine told me that when it comes to matters of law, one of the first things to settle is who has jurisdiction because without jurisdiction, your argument evaporates. Referring to Title 50 of the United States Code, we will be looking at section 1802(b) of Chapter 36 which has to do with electronic surveillance. (Note: All terms in blue have codified definitions that can be found at 50USC36§1801)

Applications for a court order under this subchapter are authorized if the President has, by written authorization, empowered the
Attorney General to approve applications to the court having jurisdiction under section 1803 of this title, and a judge to whom an application is made may, notwithstanding any other law, grant an order, in conformity with section 1805 of this title, approving electronic surveillance of a foreign power or an agent of a foreign power for the purpose of obtaining foreign intelligence information, except that the court shall not have jurisdiction to grant any order approving electronic surveillance directed solely as described in paragraph (1)(A) of subsection (a) of this section unless such surveillance may involve the acquisition of communications of any United States person.

Put simply, applications for court orders are authorized by a court having jurisdiction, except where electronic surveillance is directed solely at a foreign power or an agent of a foreign power for the purposes of obtaining foreign intelligence information, unless such surveillance may involve the acquisition of communications of any United States person.

The way section 1802(b) is written seems to follow the precept that:

  1. The court assumes jurisdiction over all electronic surveillance authorized by the President.
  2. Because the court has jurisdiction in these matters, a court order is always necessary when approving applications for electronic surveillance.
  3. The court loses its jurisdiction to approve applications for electronic surveillance when the subjects of said surveillance are solely foreign powers or agents of a foreign power.
  4. The court regains its jurisdiction if the electronic surveillance may involve the acquisition of communications of any United States person.
To summarize, when dealing with this subject matter, a court order is always required unless it can be shown that all subjects of the surveillance are outside the jurisdiction of the court. This supports the Fourth Amendment of the Constitution that protects the right of citizens to be secure from unreasonable searches and seizures and to have warrants issued only upon probable cause supported by oath or affirmation. For the President or the Attorney General to say that they do not have to get a court order to initiate electronic surveillance flies in the face of our Fourth Amendment protections. To further bolster my argument, we only need look at 50USC33§1547(d) concerning the interpretation of the Senate Joint Resolution Authorization for Use of Military Force (this is found under the War Powers Resolution chapter).
Constitutional authorities or existing treaties unaffected; construction against grant of Presidential authority respecting use of United States Armed Forces
Nothing in this chapter—
(1) is intended to alter the constitutional authority of the Congress or of the President, or the provisions of existing treaties.
Its pretty hard to argue that the language stating, "Nothing in this chapter... is intended to alter the constitutional authority of the Congress or of the President" means anything else then what it says: No new authority. The Congress and the President are still bound by their Constitutional restraints.


Blogger Britt Howard said...

Good points.

I think I misunderstood what I was quoting before on the Supreme Court determinations of Hamdi vs. Rumsfeld. After reading more of it from:

I found:

--Its central holding was that a "citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker." --


--There remains the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal. Indeed, it is notable that military regulations already provide for such process in related instances, dictating that tribunals be made available to determine the status of enemy detainees who assert prisoner-of-war status under the Geneva Convention. See Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, Army Regulation 190-8, §1-6 (1997). In the absence of such process, however, a court that receives a petition for a writ of habeas corpus from an alleged enemy combatant must itself ensure that the minimum requirements of due process are achieved. --

This indicates to me that just seeing Hamdi, a US citizen, in the enemy camp, did not remove his right to Due Process to determine whether or not he could be held as an enemy combatant. Even if it was by military tribunal, Due Process is a must. After his determination was made he could be possibly held.

From this I gather that if he was not held but, an object of surveillance, the usual probable cause triggered warrants(which of course would be granted) would still be necessary due to his 4th amendment protections.

I somehow confused the ruling that said the US could detain even though detention was not mentioned in the Authorization to Use Force to mean it could detain in that instance without due process. I then falsely concluded that surveillance gathered on a citizen communicating with a known al Qaeda terrorist overseas(akin to Hamdi being in proximity to Taliban)not necessitating a warrant.

9:19 AM  

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