Dec 30 2005

ACLU Claimed FISA Was Unconstitutional

Published by at 10:41 pm under All General Discussions

Editorial clean up, thanks to reader Snapple: 12/31/05

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). 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?

Amici particularly focus on the differences between the two statutes concerning notice.24 Title III requires notice to the target (and, within the discretion of the judge, to other persons whose communications were intercepted) once the surveillance order expires. 18 U.S.C. § 2518(8)(d). FISA does not require notice to a person whose communications were intercepted unless the government “intends to enter into evidence or otherwise use or disclose” such communications in a trial or other enumerated official proceedings. 50 U.S.C. § 1806(c). As the government points out, however, to the extent evidence obtained through a FISA surveillance order is used in a criminal proceeding, notice to the defendant is required. Of course, where such evidence is not ultimately going to be used for law enforcement, Congress observed that “[t]he need to preserve secrecy for sensitive counterintelligence sources and methods justifies elimination of the notice requirement.” S. REP. at 12.

Based on the foregoing, it should be evident that while Title III contains some protections that are not in FISA, in many significant respects the two statutes are equivalent, and in some, FISA contains additional protections.25 Still, to the extent the two statutes diverge in constitutionally relevant areas–in particular, in their probable cause and particularity showings–a FISA order may not be a “warrant” contemplated by the Fourth Amendment. The government itself does not actually claim that it is, instead noting only that there is authority for the proposition that a FISA order is a warrant in the constitutional sense. See Cavanagh, 807 F.2d at 790 (concluding that FISA order can be considered a warrant since it is issued by a detached judicial officer and is based on a reasonable showing of probable cause); see also Pelton, 835 F.2d at 1075 (joining Cavanagh in holding that FISA procedures meet constitutional requirements); Falvey, 540 F. Supp. at 1314 (holding that unlike in Truong, a congressionally crafted warrant that met Fourth Amendment standards was obtained authorizing the surveillance). We do not decide the issue but note that to the extent a FISA order comes close to meeting Title III, that certainly bears on its reasonableness under the Fourth Amendment.

OK, they argue FISA does not conflict with the 4th ammendment.

What about warrentless searches (which means FISA-less searches)?

The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information

That analysis, in our view, rested on a false premise and the line the court sought to draw was inherently unstable, unrealistic, and confusing. The false premise was the assertion that once the government moves to criminal prosecution, its “foreign policy concerns” recede. As we have discussed in the first part of the opinion, that is simply not true as it relates to counterintelligence. In that field the government’s primary purpose is to halt the espionage or terrorism efforts, and criminal prosecutions can be, and usually are, interrelated with other techniques used to frustrate a foreign power’s efforts. Indeed, the Fourth Circuit itself, rejecting defendant’s arguments that it should adopt a “solely foreign intelligence purpose test,” acknowledged that “almost all foreign intelligence investigations are in part criminal investigations.”

This last bit is interesting. It points to the conflict of opinion, and the now debunked Gorelick Wall. There is no lessening of the need to protect this country as criminal prosecutions go forward. There is no either-or choice – but parallel and unhindered co-existance.

Interesting stuff.

15 responses so far

15 Responses to “ACLU Claimed FISA Was Unconstitutional”

  1. […] 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: […]

  2. trentk269 says:

    I guess there aren’t any takers on my Bush won’t be impeached wager offer…

  3. mary mapes says:

    I guess there aren’t any takers on my Bush won’t be impeached wager offer

    AJ…please tell me this is a spoof!

  4. mary mapes says:

    OOPS mis-read…thought it said “will be”
    I don’t think you will get many wagers…a pipe dream that is just that.

  5. Jihadis and Wiretaps and Moonbats! Oh, My! — Part 4 (Updated)

    (Click here for some earlier related posts.) It’s about damned time: … If I died right now it’d take ’em a week to get the big grin off my face. I’ll fetch a rope, you go find a tree! Happy New Year, people! …

  6. Snapple says:

    AJ–Do you need to add a words “was illegal” to your introductory paragraph? It is not clear.

    You write :

    “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 [was illegal] in an amicus brief to the government’s first ever challenge to the FISA Court (FISC).

  7. Snapple says:

    I used to think people were off the rails when they raved about the ACLU; but I started paying attention, and you know what? I decided that the ACLU and some of these domestic radicals are really working with the enemies of America to disarm us legally. They are the opposite of what “liberal” really means.

    I even read that the ACLU is even destroying a lot of its records and papers. Maybe they are scared that someone is onto them.

    Some of these groups only pretend to care about our Constitution, our civil rights, and traditional liberal values. Really, they are trying to make us fight without the same weapons our enemies are using.

    Some of these folks are really subversives. They hide under good liberal causes like “human rights,” “women’s rights,” “Indian rights,” “black rights,” “animal rights” or “environmental rights,” but these worthy issues are not really their agenda. Their real agenda is to destroy our rights.

    For example, look at the academic Mary Berry who was head of the US Commission on Civil Rights.

    Mary Berry mischaracterized the policies of Lyndon Johnson’s Great Society as “GENOCIDAL” because they helped black women get access to family planning–something that more affluent, white women had. President Johnson did so much to try to get justice and better opportunities for black people. The Great Society was not a “campaign of genocide.” [Washington Monthly; 10/1/1987; Glastris, Paul]

    Women can’t escape poverty if they don’t have access to family planning. To characterize what was happening to blacks in the 1960s as “the threat of genocide” is really crazy.

    Here is what Berry and John Blassingame wrote in their 1982 book, “Long Memory: The Black Experience in America” :

    “Although most historians have dismissed the claims of Afro-Americans that the United States had inaugurated a campaign of genocide against black people in the 1960s as unfounded, hysterical charges, the threat of genocide was real. It was roughly comparable to the threat faced by Jews in the 1930s.” [Washington Monthly; 10/1/1987; Glastris, Paul]


    Berry even celebrated Stalin’s Soviet Union and Mao’s China. This shows that “civil rights activist” Berry was an ideological opponent of the US and an apologist for two of the biggest mass-murderers in the 20th Century.

    Berry praised the partisan indoctrination of the education system in communist China. She said that Chinese college students “MUST DEVELOP what they call SOCIALIST CONSCIOUSNESS and CULTURE,”and that this was was no cause for criticism. “It would be both cheap and easy for us here in America to denounce that approach.” [Washington Monthly; 10/1/1987; Glastris, Paul]

    It is not called “civil rights” when a student has to “develop socialist culture and consciousness” as a condition of an education. This is called a totalitarian one-party dictatorship.

    Barry said that black Americans didn’t embrace communism during the depression only because they were “Subjected to a massive barrage of propaganda from American news media, [so] few of them knew about Russia’s constitutional safeguards for minorities, the extent of equal opportunity, or the equal provision of social services to its citizens.” [Washington Monthly; 10/1/1987; Glastris, Paul]

    Tens of millions of ordinary Soviet citizens were being shot, starved, worked to death and frozen. There were no constitutional safeguards or provision of social services for them.

    That Berry did not care two-hoots about real educational success for minority students is shown by this example:

    “The folks at the University of Colorado in Boulder, where she was chancellor [1976—?], know what can happen when Berry is put at the helm of a large organization. In 1977 English professors had decided that minority students should not receive credit for summer courses given by the Educational Opportunities Program (EOP) because the classes were “remedial.”The faculty argued that “high-risk” minority students, though helped by the courses, were still entering fall classes seriously deficient in language skills.

    Minority students and EOP officials protested. Berry and the English department reached a compromise under which the students would receive credit for the summer courses but would also have to take freshman English. Simple enough, until 25 minority students barricaded themselves in the dean’s office. Berry, who had already left for Washington, came back to campus to negotiate. (She had told the university the federal job would last only a year and the U.S. Senate that she expected to stay in Washington indefinitely. Angry officials in Washington and Colorado were just discovering the conflicting statements when Berry flew back to Boulder to defuse the crisis.) Outside, according to the Denver Post, minority students led a rally to support the “struggling masses’ inside, calling the course compromise “racist’ and demanding “destruction of the capitalist system which the University of Colorado represents.’

    After meeting with the students, Berry announced a new policy: if the students would be nice enough to leave the building without tearing it apart, the university would grant all their demands–no freshman English requirements; EOP, not the English department, gets control of the classes; amnesty for the protesters. English professors were beside themselves with anger and drew up a petition demanding that she be censured. But Berry was already back in Washington, leaving the university to clean up the mess. ” [Washington Monthly; 10/1/1987; Glastris, Paul]

    Interestingly enough, Ward Churchill , who called the 9-11 victims “little Eichmans” and their murderers “heroes” moved to Boulder in 1976, too, and began working in the Boulder school system’s Indian EOP program and also got a job at CU in 1978.

    This EOP (Equal Opportunity Program) did not give the kids equal opportunities. The kids got to take a remedial English course and count it as Freshman English. This really kept the minority students ignorant.

    So the minority children did NOT get equal rights because of this EOP program. The EOP was really being used to undermine the English department requirements and the students’ right to an equal education.

    The EOP used the students and the threat of violence and property destruction to get power. The destruction of public property and the destruction of the English department requirements to the EOP is not civil rights. It is thuggish intimidation.

  8. Snapple says:

    The fake Indian Ward Churchill is not really trying to help Indians.
    His REAL TARGET IS THE AMERICAN GOVERNMENT. He does everything he can to tell lies about our justice system. His ACLU lawyer David Lane calls our system the “just us” system–meaning just the powerful.

    Ward Churchill can tell any lie about our government because under our system, the government can’t sue a person for libel.

    Ward Churchill often claims that the FBI are terrorists who
    aid and abet the mass-murderers of Indians. This was the same propaganda theme that was circulated in Boulder after JonBenet Ramsey was murdered: that the government was aiding and abetting a ring of pedophiles with powerful government connections.

    Churchill claimed that the FBI was collaborating in the murder of Indians who belonged to the American Indian Movement:

    Churchill writes:
    “[I]n the post-Wounded Knee context of South Dakota’s Pine Ridge Lakota Reservation, independent researcher Candy Hamilton established that at least 342 AIM members and supporters were killed by roving death squads aligned with and supported
    by the FBI. (The death squads called themselves GOONs, “Guardians of the Oglala Nation.”) This was between 1973 and 1976 alone.”

  9. Snapple says:

    Now who was this “independent researcher ” Candy Hamilton who claimed that the FBI helped death squads murder 342 Indians? She was a woman who had to testify as a witness in a murder trial of a radical Indian activist named Anna Mae Aquash. CAndy was her friend and one of the last people to see her alive.

    And who did a court decide murdered Anna Mae? The FBI? No. A member of the American Indian Movement. So AIM wasn’t getting rights for Indians; some of the leaders were white leftists. AIM was using Indians for their “anti-capitalist agenda.

    Indians are not a bunch of anti-American radicals.

    On 9-11, the Mohawk, Oneida, the Pequot, Mohegan and many others immediately put their people – ironworkers, ferry-boat crews and medical personnel – into the rescue and recovery operations.

    Many Indians actually build the skyscrapers in NYC. There was even a crew on one of the buildings when the plane hit. They helped rescue people.

    California Indian nations expressed their solidarity with America and donated generously to the rescue efforts. Lakota families brought their Sacred Pipe to pray at the site, leaving their quiet offerings early one dawn.

    But Ward Churchill called the 9-11 victims “Little Eichmanns,” and he did it while he PRETENDED to be an Indian.

    And his lawyer is David Lane who is active in the ACLU.

  10. Snapple says:

    Thanks for fixing that first part–an amicus brief. I get this a little better now.


    It sounds like the FISA court is thanking the ACLU for protecting it from the Patriot act changes the Administration wanted to get rid of the “wall.”

    The ACLU fox is in the FISC henhouse, right?

    Is that the dumbed- down bottom line?

    I will need to read this a lot, but my own experience is that if the ACLU wants it, I don’t.

    The ACLU supports the forces who are trying to kidnap our liberties.

  11. says:

    Both ends against the rest of us

    Let’s see if I understand this: The ACLU is asking the Attorney General for the appointment of a special prosecutor to investigate whether President Bush violated the Foreign Intelligence Surveillance…

  12. Snapple says:

    AJ–Before you sit down with your beer to watch football, could you explain your post here. I am not used to reading legal opinions and am having a lot of trouble.

    Thanks, and Happy New Year!

  13. AJStrata says:


    I am actually trying work today since I was sick most of last week.

    In a nutshell the ACLU claimed FISA was unconstitutional because it did not meet all the requirements of Title III for warrants, and therefore was in violation of the 4th amendment.

    The FISA Review Court demonstrated it was similar enough, and the differences were not sufficient to be deemed unconstitutional.

    The irony is the ACLU is now calling for an investigation of Bush claiming he violated the law by not following FISA – which they believe is not valid law anyway.

  14. MerryJ1 says:

    Snapple, you’ve got some good stuff there on Mary Berry, et al, but use caution when citing Wikipedia; it can be a handy starting point, but consider the info worthless unless you can confirm accuracy from other sources.

    Anonymous “contributors” can go in and edit Wikipedia content in the most imaginative, prankish or malicious ways imaginable (one JFK aide blew the whistle after finding his own bio on Wikipedia had been changed to include out-of-left-field allegations that he was suspected of complicity in the assassination).

    As to Berry’s “LBJ & genocide in the 1960s” nonsense, “family planning” in the post-Roe v Wade sense wasn’t yet on the radar screen. Prior to 1973, abortion was a state issue and very restricted in most states.

    A major catalyst for pro-legalization and debates about the abortion issue in general, was the early 1970s law suit by a pregnant woman who had taken Thalidomide, and horror stories about birth defects caused by that drug during the first trimester of pregnancy.

    The woman lost her legal case and went to Sweden (or thereabouts) for an abortion; the aborted fetus did have Thalidomide defects characterized by missing and/or badly deformed limbs (hands growing at the shoulder with no arms, for example, or no legs).

    But isn’t Mary Berry the nutcase who refused to step down from the Civil Rights Commission when her (by Clinton) appointment expired and President Bush had already appointed her replacement? She refused to let the new Commission member be sworn in or seated?

  15. Snapple says:

    AJ–you are showing your youth. And now I will have to show my age.

    Family planning was birth control information in the 1960s –NOT abortion.

    I am not a kid AJ–I was a young adult in the late 1960s. I remember the civil rights movement perfectly. I watched “I have a Dream” live, OK?

    NOBODY was telling black women to get abortions. Just the normal health infomation middle-class women had about family planning when they went to the doctor was being provided. Family planning did not mean abortions. It meant not getting pregnant unless you wanted to. Abortion was illegal. Family planning allowed a poor black women to get an education or to work so she could lift herself out of poverty.

    I know about Wikipedia’s issues, but for young people who don’t know what the Great Society is, Wikipedia’s got general information.

    Berry is the charming lady you describe.

    That she would construe family planning (not abortion) as “genocidal” tells you she is spreading conspiracy theories about the government.

    The idea was to give women information so they could have some control over pregnancies, and so they could work and have their own money. That makes women and children a LOT better off. The information could be even birth-control information consistent with the Catholic Church.

    The point is, Berry did not want black women and their children to be better off. She wanted a socialist revolution.

    Hope you can go watch football. Hope you feel better.