ACLU Claimed FISA Was Unconstitutional

Posted on December 30, 2005

AJ Strata is on fire tonight! Check out the hypocrisy from the ACLU he uncovers.

What stunning hypocrisy is eminating from the ACLU! They are calling for in investigation into crimes by Bush because he did not follow FISA - a process and set of statutes the ACLU claimed in 2002 in an amicus brief to the government’s first ever challenge to the FISA Court (FISC). Here is a link to the brief.

Here is the FISA Review Court’s determination on the ACLU claim:

We are, therefore, grateful to the ACLU and NACDL for their briefs that vigorously contest the government’s argument. Both NACDL (which, as we have noted above, presents only the argument that the statute as amended is unconstitutional) and the ACLU rely on two propositions. The first is not actually argued; it is really an assumption–that a FISA order does not qualify as a warrant within the meaning of the Fourth Amendment. The second is that any government surveillance whose primary purpose is criminal prosecution of whatever kind is per se unreasonable if not based on a warrant.

And so now they claim it is illegal for Bush to side step laws they consider illegal. Now that’s pretzel logic!

And what did the FISA Review Court determine?

Go Read The Whole Thing.

» Filed Under ACLU, News, War On Terror

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2 Responses to “ACLU Claimed FISA Was Unconstitutional”

Crazy Politico on December 31st, 2005 8:45 am

While I understand the irony of this, the truth is if FISA is settled as constitutional, then I can see why they are suing for not using it.

It is still hillarious, though.
james Gale on January 3rd, 2006 8:39 pm

Our old friends at StopTheACLU are back at it again with a new and entirely inaccurate attack. They link to a post by AJ Strata that purports to demonstrate the “stunning hypocrisy” of the ACLU. Here’s the specific allegation:

What stunning hypocrisy is eminating from the ACLU! They are calling for in investigation into crimes by Bush because he did not follow FISA - a process and set of statutes the ACLU claimed was illegal in 2002 in an amicus brief to the government’s first ever challenge to the FISA Court (FISC).
As I will show, this statement is so ridiculous that it’s hard to know whether Mr. Strata is being dishonest or whether he’s just not bright enough to comprehend what he’s reading. Either way, his argument here is patently absurd for several reasons. First, because even if he had portrayed the facts of the case correctly, it would not demonstrate any hypocrisy. It would be perfectly consistent for the ACLU to argue that FISA is unconstitutional because it fails to establish protections consistent with the 4th amendment and also to argue that the President should be investigated for violating FISA because he didn’t bother to comply even with the minimal protections offered by that law.

More importantly, Strata is simply misstating the facts of the case. The ACLU’s brief in that case did not argue that FISA was unconstitutional, they argued that using FISA to authorize searches for criminal prosecutions (as opposed to foreign intelligence gathering) was unconstitutional. The issue in the case was whether the government could go to the FISA court for a warrant in attempting to build a criminal case, or whether they had to go to a regular court for such a warrant, which would then be subject to a different set of legal standards.

There are two primary Federal laws which govern warrants for wiretaps and searches. Title III governs the use of such warrants in criminal investigations, while the FISA statute governs the use of such warrants in foreign intelligence gathering. Because of the need for secrecy and the often time-sensitive nature of foreign intelligence gathering, Congress set up the FISA court, which operates in secret, with a set of rules that includes a lower standard of probable cause and less restrictive procedures, and hence lower protection for those who are the targets of such warrants.

The Patriot Act amended the FISA statute to lower those protections even further. Prior to the Patriot Act, the government had to certify that “the purpose” of the requested warrant for surveillance was to aid in gathering foreign intelligence. After the Patriot Act, the government only had to certify that the gathering of foreign intelligence was “a significant purpose” of the request. The Bush administration interpreted that to mean that they could ask the FISA court for a warrant in a case whose primary purpose was not the gathering of foreign intelligence, but rather the building of a criminal case.

In March of 2002, the Bush administration asked the FISC (the court that oversees FISA activities) to authorize a new set of procedures that would allow surveillance to be initiated and controlled not by the NSA but by the FBI and other law enforcement agencies. The FISC rejected those procedures, ruling that the purpose of the FISA statute was solely to regulate the gathering of foreign intelligence, not the gathering of evidence for a criminal trial, and that requests for surveillance as part of a criminal investigation must go through a regular court and be subject to the restrictions of Title III (see the original ruling here). That ruling, which was a unanimous 7-0 decision, was then appealed by the administration, and it was during that appeal that the ACLU filed their brief supporting the court’s original decision. On appeal, that ruling was partially overturned and the case was remanded to the lower court for a rehearing (see that ruling here).

The key fact here is that the ACLU was not arguing that the FISA statute itself was illegal in that brief because that was not at issue in the case. They were arguing that the use of FISA to govern surveillance efforts in criminal cases, rather than foreign intelligence gathering, is unconstitutional. They further argued that if the FISC were to allow the FISA statute to be used in criminal cases, then FISA would be unconstitutional because it would violate the 4th amendment’s protections against warrantless searches and probable cause requirements.

These are important distinctions because they clearly undermine the implication that the ACLU was showing “stunning hypocrisy”. Perhaps that’s why Mr. Strata didn’t bother to make those distinctions. Or perhaps he just didn’t understand what he was reading. Either way, it’s just another false attack on the ACLU. And frankly, I don’t get it. The ACLU has been around long enough and taken enough controversial positions that it’s not terribly difficult to find legitimate reasons to criticize them, as I’ve done in some cases. So why must their harshest and most simple minded critics rely on dishonest representations of their positions in order to justify their rhetoric?