The US Department of Justice (DOJ) has released two heavily redacted memos outlining the government’s justification for warrantlessly wiretapping domestic telephone calls. The documents were released as a result of Freedom of Information Act (FOIA) lawsuits brought by the American Civil Liberties Union and the Electronic Privacy Information Center.
The too long; didn’t read (tl; dr) rationale goes something like this: After the 11 September 2001 coordinated terrorist attacks, the government needed a new method of response to this new form of attack, and needed it fast. Mass surveillance paired with seemingly unlimited executive branch authority appeared as the new method of choice.
Then-Assistant Attorney General Jack Goldsmith makes this clear in his 6 May 2004 memo:
“[Redacted] We conclude that in the circumstances of the current armed conflict with al-Qaeda, the restrictions set out in FISA, as applied to targeted efforts to intercept the communications of the enemy in order to prevent further armed attacks on the United Statrs, would be an unconstitutional infringement on the constitutionally assigned powers of the President. The President has inherent constitutional authority as Commander in Chief and sole organ for the nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. Congress does not have the power to restrict the President’s exercise of that authority. [Redacted]”
Then-Assistant Attorney General Jack Goldsmith’s 6 May 2004 memo to the Attorney General reviewing the legality of the Stellar Wind surveillance program.
The Stellar Wind program allowed the US National Security Agency (NSA) to surveil domestic communications when at least one party of a communication was believed to be associated with al-Qaeda and at least one part of the communication was overseas.
In his 6 May 2004 memo, Goldsmith argues that the US Congress provided “express authority” for Stellar Wind — including domestic surveillance — when it authorized “all necessary and appropriate force” by passing the 2001 Authorization for the Use of Military Force.
In March 2004 — some two months before the 6 May 2004 memo — Goldsmith’s Office of Legal Counsel found the Stellar Wind surveillance program to be illegal and James Comey, then-acting Attorney General, refused to reauthorize it. Four months later — in July 2004, two months after the 6 May 2004 memo — the US Foreign Intelligence Surveillance Court (FISC) re-authorized the program. In 2007-08 the Stellar Wind warrantless wiretapping program was tidily legalized under Section 702 of the Foreign Intelligence Surveillance Act (FISA).
One thing that is certain is that all of the governmental hand-waving over collecting only metadata and abiding by the Fourth Amendment was simply not true. Goldsmith’s 6 May 2004 memo clearly discusses metadata as well as full content and concludes that surveillance of both are not protected under the Fourth Amendment.
Goldsmith’s second memo, dated 16 July 2004, covers the same ground using the same rationalizations and adds that the detainment of a US citizen in Afghanistan was justified because of war and that warrantless surveillance and wiretapping is a “fundamental and accepted” part of war.
Then-Assistant Attorney General Jack Goldsmith’s 16 July 2004 memo to the Attorney General on the implications of Hamdi v. Rumsfeld on the Stellar Wind surveillance program.
To sum up, under the US Supreme Court decision in Smith v. Maryland, intelligence agencies can surveil most anything so long as they call it metadata. If non-metadata information — including full content — just happens to be collected, that’s covered by the executive branch’s authority.
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DOJ releases warrantless wiretapping justification memos was originally published by ARTS & FARCES internet on Wednesday, 24 September 2014 at 6:06 AM CDT. Copyright © ARTS & FARCES LLC. All rights reserved. | ISSN: 1535-8119 | OCLC: 48219498 | Digital fingerprint: 974a89ee1284e6e92dd256bbfbef3751 (64.237.45.114)