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Title: Bush Contends Spying Program Vital, Legal
Source:
Yahoo! News (AP)
URL Source: http://news.yahoo.com/s/ap/20060102/ap_on_go_pr_wh/domestic_spying
Published: Jan 1, 2006
Author: DEB RIECHMANN, Associated Press Writer
Post Date: 2006-01-01 21:13:48 by robin
Keywords: Contends, Program, Spying
Views: 76
Comments: 12
President Bush delivers remarks after visiting wounded soldiers at Brooke Army Medical Center, Sunday Jan. 1, 2006, in San Antonio, Texas. (AP Photo/Lawrence Jackson) SAN ANTONIO - President Bush strongly defended his domestic spying program on Sunday, calling it legal as well as vital to thwarting terrorist attacks, and contended the leak making it public had caused "great harm to the nation." "This is a limited program designed to prevent attacks on the United States of America and, I repeat, limited," Bush told reporters after visiting wounded troops at Brooke Army Medical Center. "I think most Americans understand the need to find out what the enemy's thinking." In Washington, lawmakers are preparing for hearings to consider Bush's domestic spying program. Four senators — two of them Republicans — indicated Sunday that congressional hearings were appropriate for considering Bush's assertion that he had constitutional and congressional authority to authorize domestic wiretaps without a court order in the aftermath of the terrorist attacks of Sept. 11, 2001. "In the first few weeks we made many concessions in the Congress because we were at war and we were under attack," said Sen. Richard Lugar (news, bio, voting record), R-Ind., the chairman of the Foreign Relations Committee. "We still have the possibility of that going on, so we don't want to obviate all of this. But I think we want to see what, in the course of time, really works best." The New York Times reported last month that the National Security Agency had been conducting warrantless surveillance since 2002. Bush then acknowledged that he had authorized the NSA program and pointed to informing congressional leaders and regular reviews by administration officials as evidence of oversight for the program. The Justice Department on Friday opened an investigation into the leak that resulted in news stories about the secret order to eavesdrop on Americans with suspected ties to terrorists. "The fact that somebody leaked this program causes great harm to the United States," Bush said before returning to Washington from a holiday break at his Texas ranch. "There's an enemy out there." Bush stressed that the surveillance involved telephone calls from "a few numbers" outside the United States by people associated with al-Qaida, the terrorist organization that plotted the Sept. 11 attacks. The White House later clarified Bush's remarks, saying he meant to say calls going to and originating from the U.S. were being monitored. "It seems logical to me that if we know there's a phone number associated with al-Qaida or an al-Qaida affiliate and they're making phone calls, it makes sense to find out why," he said. "They attacked us before, they'll attack us again." The president denied misleading the public during a 2004 appearance in support of the Patriot Act when he said, "Any time you hear the United States government talking about wiretap, a wiretap requires a court order." Asked about that Sunday, Bush said: "I was talking about roving wire taps, I believe, involved in the Patriot Act. This is different from the NSA program. The NSA program is a necessary program." Bush didn't answer a reporter's question about whether he was aware of any resistance to the program at high levels of his administration and how that might have influenced his decision to approve it. The Times reported Sunday that a top Justice Department official objected in 2004 to aspects of the NSA program and would not sign off on its continued use as required by the administration's guidelines. James B. Comey, a top deputy to then-Attorney General John Ashcroft, was concerned with the program's legality and oversight, the Times and Newsweek reported. Administration officials then went to Ashcroft, who had been hospitalized for gallbladder surgery, to gain his approval, according to the newspaper, but it was unclear whether Ashcroft gave his approval. Neither Comey nor Ashcroft would comment on the meeting, according to the Times. White House spokesman Trent Duffy declined Sunday to answer questions about the administration's internal discussions. Many Democrats and some Republicans in Congress have questioned whether Bush's actions went beyond the constitutional powers and congressional resolution he has cited. In 1978 Congress established a secret court to handle sensitive requests for surveillance and to issue warrants — a system the NSA program bypassed. Sen. Arlen Specter (news, bio, voting record), the Pennsylvania Republican who chairs the Judiciary Committee, has called for hearings into the program. Sen. Mitch McConnell (news, bio, voting record), R-Ky., said Sunday that he would prefer that any hearings be held by the Intelligence Committee, which likely would be in secret. "We're already talking about this entirely too much out in public as a result of these leaks ... and it's endangering our efforts to make Americans more secure," McConnell said. Appearing with McConnell on "Fox News Sunday," Sen. Charles Schumer (news, bio, voting record), D-N.Y., said the Justice Department investigation should explore the motivation of the person who leaked the information. "Was this somebody who had an ill purpose, trying to hurt the United States?" Schumer asked. "Or might it have been someone in the department who felt that this was wrong, legally wrong, that the law was being violated?" Schumer released a letter he sent to Specter suggesting that current and former administration officials, including Comey and Ashcroft, be called to testify and that the administration waive executive privilege. Sen. Richard Durbin (news, bio, voting record), D-Ill., appearing with Lugar on "Late Edition" on CNN, agreed with Lugar that Congress will focus in the new year on presidential powers in wartime. "The White House wants to expand that power in so many areas," Durbin said. "Clearly, Congress is holding back." ___ Associated Press Writer Douglass K. Daniel in Washington contributed to this report.
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#1. To: robin, all (#0)
Bush has been briefed (probably by torture buff Al Gonzalez), but those briefs are classified! Those briefs probably rely upon a very poorly reasoned appellate opinion by the unreconstructed Fourth Circuit in US v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980. That case, and others of its ilk, pay only lip service to the standards laid down by the Supreme Court in determining whether to carve out an exception to the warrant requirement. The Government's need, in those opinions, is sufficient to justify the exception, whereas the Supreme Court's holding in the "Keith" case, cited below, is far more complicated. WARRANTLESS SEARCHES ARE "PER SE" UNREASONABLE AND THUS ILLEGAL Warrantless searches“are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions." Katz v. United States, supra, 389 U.S. at 357 (footnotes omitted). The Government bears the burden, and it is a “heavy” burden, of showing that one of the exceptions applies. Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971); Vale v. Louisiana, 399 U.S. 30, 34, 90 S. Ct. 1969, 26 L.Ed.2d 409 (1970); Maryland v. Wilson, 279 Md. 189 (1977). NATIONAL SECURITY IS NOT AN EXCEPTION TO THE WARRANT REQUIREMENT United States v. United States District Court [ Keith ], 407 U.S. 297, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972), narrowed the scope of the possible exception to the warrant requirement. The Keith court held that no exception exists for surveillance justified solely on the basis of domestic threats to the national security. The Court expressed no opinion as to the result that would be required if foreign powers were involved in the threat to the national security. To determine whether national security justifies exempting surveillance from prior judicial scrutiny, the Keith court engaged in an analysis involving the following factors: (1) "judicial competence" vel non in the area of national security, (2) the danger of "security leaks" which might endanger the lives of informants and agents and which might seriously harm the national security; (3) the fact that such surveillance is of the "ongoing intelligence gathering" type and that, since criminal prosecutions are less likely, Fourth Amendment protections are not as essential as in a normal criminal context; (4) the possibility that the delay involved in the warrant procedure might result in substantial harm to the national security; and (5) the fact that the administrative burden on the courts or the Executive Branch which would result from such a requirement would be enormous. National security has not been added to the list of exceptions, and it is not likely to be, for the reasons stated in Zweibon, quoted below. Despite the fact that the Keith court never reached the question of whether an exception to the warrant requirement can be justified on the basis of threats to the national security involving foreign powers, some lower courts have subsequently held that such an exception to the warrant requirement in fact exists. The reasoning of these cases leaves much to be desired. They give only lip service to a proper analysis, as described in Keith. Those opinions simply overlooked the substantial body of case law, including Keith, which rejects the contention that the warrant requirement may be abrogated merely because the Government has a legitimate need to engage in certain activity. "Instead of following the proper analysis of determining whether a warrant proceeding would frustrate the legitimate need of the Executive to acquire foreign intelligence information, these courts treated the need itself as determinative of the legality of warrantless surveillance. We find this methodology simply inconsistent with the spirit and holding of Keith and prior cases, particularly given the substantial First and Fourth Amendment interests that may be infringed by unsupervised surveillance." Zweibon v. Mitchell, 170 U.S. App. D.C. 1, 516 F.2d 594 (1975). THE KEITH ANALYSIS IN ACTION Herewith that portion of the Zweibon opinion that engaged in a "Keith" analysis: [97] (1) " Judicial competence ": Although the judicial competence factor arguably has more force when made in the foreign rather than the domestic security context, the response of Keith to the analogous argument is nevertheless pertinent to any claim that foreign security involves decisions and information beyond the scope of judicial expertise and experience: [98] We cannot accept the Government's argument that internal security matters are too subtle and complex for judicial evaluation. Courts regularly deal with the most difficult issues of our society. There is no reason to believe that federal judges will be insensitive to or uncomprehending of the issues involved in domestic security cases. Certainly courts can recognize that domestic security surveillance involves different considerations from the surveillance of "ordinary crime." If the threat is too subtle or complex for our senior law enforcement officers to convey its significance to a court, one may question whether there is probable cause for surveillance. [99] 407 U.S. at 320, 92 S. Ct. at 2138 (emphasis added). Similarly, we do not believe federal judges will be "insensitive to or uncomprehending of the issues involved in" foreign security cases,127 or that judges will deny any legitimate requests for a warrant. [100] Congress apparently concurs in the belief that judges are competent to analyze the substance of matters allegedly pertaining to the national security. This attitude was unambiguously expressed by the passage of Public Law No. 93- 502, 88 Stat. 1561 (1974), which amended the Freedom of Information Act, 5 U.S.C. § 552 (1970),128 to, inter alia, overrule the Supreme Court's decision in EPA v. Mink, 410 U.S. 73, 93 S. Ct. 827, 35 L. Ed. 2d 119 (1973). In Mink the Court interpreted 5 U.S.C. 552(b)(1), which exempted from the forced disclosure mandate of the Act those matters "specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy," not to allow judicial review of Executive security classifications and not even to allow in camera inspection of a contested document bearing a security classification so that nonsecret matter could be separated from secret matter and ordered disclosed. 410 U.S. at 81-84, 93 S. Ct. 827. Congress responded with amendments to Section 552 which altered Section 552(b)(1) to exempt from disclosure those documents which are: [101] specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order.129 [102] It also specified that when the question of discoverability of a document is placed in issue, "the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld . . .."130 [103] Although the conference report on these amendments expressed a congressional expectation that, since "Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of public disclosure of a particular classified record, . . . Federal courts . . . will accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record," it unequivocally stated that the Mink decision was to be legislatively overruled with respect to in camera review and that the propriety of a document's classification was to be judicially determined with respect to "both procedural and substantive criteria contained in the Executive order under which it was classified."131 Moreover, despite the fact that the amendments were vetoed by the President, primarily on the ground that "the courts should not be forced to make what amounts to the initial classification decision in sensitive and complex areas where they have no particular expertise," 120 Cong.Rec. H10705 (daily ed. Nov. 18, 1974)(Veto Message from the President of the United States), both Houses of Congress overwhelmingly voted to repudiate that contention by convincingly overriding the presidential veto.132 Although such a congressional expression in no way binds us in the context of Fourth Amendment adjudication, we find that this vote of confidence in the competence of the judiciary affirms our own belief that judges do, in fact, have the capabilities needed to consider and weigh data pertaining to the foreign affairs and national defense of this nation. [104] The description of current Executive procedures for authorizing national security wiretapping also gives us reason to hesitate in according undue deference to the "expertise" that the Executive Branch brings to each decision. Former Attorney General Saxbe,133 testifying on "National Security Electronic Surveillance and S. 2820134 before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary", (Dept. of Justice release, Oct. 2, 1974), admitted that the practice of warrantless surveillance had apparently been abused in the past, see id. at 5-6,135 and then described current procedures: [105] First of all, for a request for a foreign intelligence surveillance to survive, it must first be approved by several different levels of supervision within the FBI before it even reaches the Director's office, and the request must contain very detailed information. [106] If the request originates in an FBI field office, the proposal will be considered by the case Agent, the Supervisor, and the Special Agent in Charge of the field office. At FBI Headquarters the request will be considered by the Supervisory Special Agent, the Unit Chief, the Section Chief, the Branch Chief, the Assistant Director, the Deputy Associate Director, and the Associate Director before it reaches the Director for his approval. [107] If the Director approves the request, it is then sent to the Assistant Attorney General in charge of the Criminal Division, Mr. Petersen. He then forwards the request with his recommendation and comments for my consideration. If, and only if, I approve the request can the surveillance be installed and then for a maximum period of three months, after which I will approve a renewal only with what I deem sufficient justification. Let me assure you that I do not approve these automatically. [108] Numerous requests are turned down long before they reach my desk. I personally have withheld some authorizations and on at least one occasion I have denied a request for an extension. [109] Id. at 6-7. With due deference to the former Attorney General, we believe this description, when considered together with the fact that there is a high turnover in the office of Attorney General,136 indicates that most actual decisionmaking with respect to wiretapping occurs before a request reaches the desk of the Attorney General, and that he would therefore be predisposed to rely on the recommendations of his subordinates.137 We cannot blindly accept the argument that the Attorney General, who is chosen for his abilities as a lawyer rather than his acumen as a diplomat, is more likely than a federal judge138 to have the analytical ability or sensitivity to foreign affairs necessary to evaluate such recommendations. Indeed, there is even a danger that an Attorney General, pressed for time and involved in other activities, will effectively delegate the task of supervising national security wiretaps to his aides; such was the case with his arguably less important although statutorily mandated duty to supervise wiretapping under the provisions of Title III.139 To the extent the Attorney General bases his decisions on the factual data and recommendations of those career officials schooled in foreign relations and intelligence gathering, judges can be similarly informed in camera, as they often are during post hoc judicial review in criminal prosecutions or civil cases.140 We simply do not believe that any margin of expertise possessed by the Attorney General can compensate for the neutral and detached attitude that a judge would bring to his decision; given the likely deference that a judge will accord the Attorney General's request, there is no substantial likelihood that any marginal lack of expertise will result in denial of legitimate requests for a warrant and frustration of proper intelligence gathering on the part of the Executive. [110] Finally, the Executive Branch itself acknowledges the fact that courts are competent to conduct post hoc review to determine whether a surveillance is reasonable. In its Memorandum for the United States in Ivanov v. United States, cert. denied, 419 U.S. 881, 95 S. Ct. 147, 42 L. Ed. 2d 121 (1974) (responding to petition for writ of certiorari to the Third Circuit), the Government took the position that since, in its judgment, reasonable warrantless national security surveillance is constitutional, Alderman does not require anything more than an in camera determination that the evidence was obtained from a reasonable wiretap. The Government argued: [111] The task of determining whether the purpose of a surveillance was foreign intelligence gathering is clearly not "too complex" nor is "the margin of error too great to rely wholly on the in camera judgment of the trial court." . . . Rather, in a field as delicate and sensitive as foreign intelligence gathering, there is every reason to proceed in camera and without disclosure. [112] Id. at 14.141 To be sure, the Government was making these arguments in support of restricting access to foreign intelligence information to the judge rather than to the private litigants. But the arguments must be evaluated against the realization that no one seriously denies that at least post hoc judicial review, under whatever standard of "reasonableness," is proper even for wiretaps installed pursuant to the President's foreign affairs powers.142 If a court can make a proper determination of reasonableness after a wiretap has been installed, and since the reasonableness of a search and seizure cannot depend on information secured after it occurs,143 there is no reason why judges should be presumed to be incompetent before the surveillance takes place. [113] Although judicial competence per se is thus no argument against prior rather than post hoc judicial review, there may be other factors actually behind the competence theory which would suggest that a warrant requirement would frustrate legitimate Executive surveillance. First, there may be a fear on the part of the Government that the standard of probable cause will be higher in a prior rather than in a post hoc judicial proceeding. Even if this were true as a practical matter, it is clearly wrong as a matter of law, and we decline to base a decision as to the legality of warrantless national security surveillances on so thin a reed. Moreover, we doubt whether this fear144 is realistic as a practical matter. As the quote from Keith indicates,145 judges are likely to be highly deferential to the Executive's determination concerning need to install a wiretap, particularly where a judicial error might substantially harm the national interest;146 in a post hoc review in a criminal or civil case, removed from the exigencies of day-to-day intelligence gathering activities, a court might be harsher in its judgment as to the reasonableness of the particular surveillance. And if pure practicalities are being considered, it should be remembered that the Government has its choice as to what judge to seek a warrant from,147 a circumstance usually not present with respect to post hoc judicial review.148 [114] Actually, this aspect of the competence argument is properly directed to the standard for judicial review, not to whether it should occur before or after the surveillance takes place. To the extent non-judicial policy factors constitute the Executive's rationale for desiring intelligence information, it is possible the standard for probable cause would reflect that fact.149 We must reemphasize the fact that we are not presented with the question of the scope of the President's substantive powers, but only with the procedural question whether a presidentially directed surveillance must run the gauntlet of judicial review before or after its installation. Since factors relating to judicial competence may arise at either time, we believe they should at most affect the standard of judicial review, not its timing. [115] Focusing on the timing of judicial intervention, however, we perceive a second fear that may actually be behind the judicial competence argument: even if the same standard is applied in prior as in post hoc judicial proceedings, an error before a surveillance occurs is likely to cause irreparable harm to the national security, whereas an error after it occurs may only result in improper award of damages or release of a single criminal defendant. The assumptions upon which this fear is based are, to say the least, questionable, and relate to the implicit belief that national security or foreign affairs information is of paramount import in all situations. The argument assumes that the erroneous invasion of individual privacy which prior review could prevent is invariably of less importance than the erroneous denial of information which could have been obtained from a reasonable wiretap. Even ignoring our belief that any error in a warrant proceeding is likely to be in favor of the Government, we find this view of foreign security information to be unduly myopic. Not only does it relegate the personal interests protected by the Fourth and First Amendments to the level of second-class rights,150 it also naively equates all foreign threats with such dangers as another Pearl Harbor.151 [116] Domestic security information, which must, under Keith, be obtained pursuant to the warrant procedure, may be no less important than foreign security information, and the potential harm from judicial error no less devastating. For example, if there were grounds to believe that a massive conspiracy existed among military officers in this country to overthrow civilian rule and institute martial law, a judge would have to approve any surveillance. Yet the Government would have us approve a rule of law that would grant the President the power to himself authorize surveillance to obtain information pertaining to routine commercial affairs, so long as they "affected" such an international problem as our balance of payments.152 And it should be obvious that as the magnitude of a national security threat approaches that of a preemptive nuclear attack rather than that of a minor disruption of trade, the probability that a judge would erroneously deny the Executive the requested warrant approaches the infinitesimal. [117] A third possible fear behind the competence argument, and the one that is most realistic, is that a warrant procedure will deny the Government the benefits flowing from the fact that most surveillance could be barricaded from any judicial review if there were only post hoc review proceedings. Since surveillance often would not be used for prosecutorial purposes,153 and since few individuals would institute damage actions on the mere possibility that they were the subject of an unreasonable wiretap, much warrantless surveillance would never have its legality challenged.154 However, every search and seizure is properly subject to judicial review, and the fact that some searches are not actually reviewed is a mere convenience. To the extent that this argument is made an affirmative reason for abrogating the warrant procedure as a frustration of Executive power, it amounts to no more than an assertion that the Executive Branch's illegal activities are best kept secret.155 We find such an argument to be, to say the least, somewhat less than compelling. [118] Thus, given the fact that judicial review of Executive-ordered surveillance would be proper in any event after it occurs, the judicial competence argument has no substantial merit as a rationale for abrogating the warrant procedure. [119] (2) " Security leaks ": It has been said that [120] the President, both as Commander-in-Chief and as the Nation's organ for foreign affairs, has available intelligence services whose reports are not and ought not to be published to the world. It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret.156 [121] Disclosure of the secret information on which Executive decisions to install a wiretap are made would arguably pose the threat of security leaks which might endanger the national security or the lives of informants and agents, or which might frustrate the proposed surveillance itself. This argument was rejected in the domestic security context by the Supreme Court in Keith, see 407 U.S. at 320-321, 92 S. Ct. 2125, and we find that it is no more persuasive in the foreign security context. Since the warrant proceeding is conducted ex parte, disclosure of information can be restricted to the judge; administrative personnel can be provided by the Government should he require clerical or other assistance.157 [122] Moreover, the Government can seek the warrant from a judge whose loyalty and discretion it considers unimpeachable. Indeed, judges generally have maintained confidences with respect to sensitive information in criminal investigations,158 and are likely to be even more careful where the national security is at stake.159 And as the Keith Court observed, "Title III . . . already has imposed this responsibility on the judiciary in connection with such crimes as espionage, sabotage and treason, § 2516(1)(a) and (c), each of which may involve domestic as well as foreign security threats."160 Furthermore, except for the possibility of frustrating the tap itself, most risks of security leakage will not be lessened in a post hoc review setting.161 Finally, it is important to realize that the judge need only satisfy himself that "probable cause"162 to conduct the surveillance exists. Thus, in cases where wiretapping would in fact be reasonable, the Government should be able to make this showing without actually disclosing the vast majority of the data it has available;163 indeed, even as to information which it does disclose, it could withhold the name or other information which would identify an informant or destroy the cover of an agent.164 [123] (3) " Strategic" information-gathering : Foreign security wiretaps, even more than domestic security wiretaps,165 are likely to be aimed at collecting and maintaining "strategic" intelligence information on a continuing basis rather than at obtaining evidence for use in criminal prosecutions. Such long-term intelligence gathering is supposedly less offensive to Fourth Amendment values and less susceptible to judicial review than are searches in the criminal context.166 It is, of course, a myth to characterize national security surveillance as purely non-prosecutorial in the criminal sense; the whole controversy concerning wiretap legislation pre-Katz revolved around the question whether evidence obtained in the course of a national security surveillance should be admitted into evidence if the wiretap had not received prior judicial approval.167 Incriminating evidence is often uncovered through such a wiretap,168 and the cases which have dealt with the issue of the constitutionality of warrantless national security surveillance169 demonstrate that the Executive Branch will not hesitate to utilize the fruits of its surveillance to obtain criminal convictions.170 [124] More important is the fact that "official surveillance, whether its purpose be criminal investigation or ongoing intelligence gathering, risks infringement of constitutionally protected privacy of speech." Keith (supra) 407 U.S. at 320, 92 S. Ct. at 2138 (emphasis added). Indeed, the ongoing nature of such surveillance just increases its intrusiveness and the likelihood that individuals will fear that their conversations are being overheard. See id. Nor are the Fourth Amendment privacy interests any weaker merely because the offensive search does not lead to a criminal prosecution.171 Public disclosure of many legal activities could be highly embarrassing and intimidating; indeed, mere knowledge that one's "private" discussions have been overheard may be extremely insulting or traumatic.172 In short, the premise behind the "strategic information" rationale for abrogating the warrant procedure, the idea that the Fourth Amendment is limited to remedies in the criminal process, is anomalous, since it would suggest that the more innocent the individual the less protection his privacy interests merit.173 [125] (4) " Delay ": It is frequently asserted that electronic surveillance must often be hastily instituted, and that the delay which would result from compliance with a warrant procedure could mean loss of essential intelligence information and subsequent disastrous harm to the national security.174 Admitting the validity of this contention, we nevertheless find it to be nothing more than an argument that warrantless electronic surveillance, like many other warrantless searches,175 may be justifiable in exigent circumstances. It cannot be gainsaid that even if national security surveillance is subjected to prior judicial approval, a traditional exigent circumstances exception should be available where delay might cause irreparable harm. Indeed, even Title III provides for up to 48 hours of warrantless surveillance if "an [126] (5) " Administrative burden" on courts and the Executive : It has been suggested that [127] Judges [should not be] burdened with the grave responsibility of deciding whether [national security] surveillances are reasonable and necessary to fulfill information requirements of foreign policy and national defense180 [128] If this "burden" refers to the imposition of a task beyond the capability of the judiciary, our "judicial competence" argument should indicate our feelings as to this asserted factor for abrogating the warrant procedure. If, however, it refers to the desirability of removing the weight of responsibility for making admittedly difficult decisions from our shoulders, we can only respond that we are grateful for the sympathy with which our role is viewed. Nevertheless, we are mindful that the judicial system is the focal point of all the conflicts and controversies of our society, and that the task of a judge, though not always a pleasant or a simple one, is to resolve those controversies in the fairest manner of which he is capable. Faced with such problems, we can only recall Chief Justice Marshall's lament: [129] With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, then to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. [130] Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L. Ed. 257 (1821). Although the "burden" argument may be cast alternatively as the administrative cost and burden which will be imposed on the Executive Branch if it must justify in every case181 its request for a wiretap, we decline to accept an argument grounded in expediency as a basis for resolving our constitutional inquiry. As the Supreme Court in Keith observed in rejecting a similar argument in the domestic context, "Although some added burden will be imposed upon the Attorney General, this inconvenience is justified in a free society to protect constitutional values." 407 U.S. at 321, 92 S. Ct. at 2139.182
Welcome to 4 leveller! Thanks for the good references.
You are too kind. Speaking of which, where is the outrage from the NeoCons? Aren't there any NeoHuns on 4?
#10. To: leveller (#8)
we have a couple here, but they don't raise their ugly heads very often. :P
Top • Page Up • Full Thread • Page Down • Bottom/LatestBush's assertion that he had constitutional and congressional authority to authorize domestic wiretaps without a court order
#4. To: leveller, aristeides (#1)
#8. To: robin (#4)
Replies to Comment # 8. Aren't there any NeoHuns on 4
End Trace Mode for Comment # 8.