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View Diary: "Metadata Program does NOT involve the content of phone calls. THAT would require a warrant." (32 comments)

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  •  That seems to require a (1+ / 0-)
    Recommended by:


    •  which presumably (0+ / 0-)

      the secret FISC issues.

      how would we know?

      There is no duty for them to inform us,

      and next to no sunlight on the FISA Court.

    •  It does sound like it requires a warrant (3+ / 0-)
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      jamess, aliasalias, wonmug

      Doesn't it?  Except, it really doesn't.

      “(a)(1) The Director of the Federal Bureau of Investigation or a designee of the Director (whose rank shall be no lower than Assistant Special Agent in Charge) may make an application for an order requiring the production of any tangible things
      From the quoted law in the comment you replied to you see the above passage.  The important thing to note is what is in bold - "may make an application" rather than "shall make an application".

      Further, the section of law goes on to say:

      “(2) An investigation conducted under this section shall
          “(A) be conducted under guidelines approved by the Attorney General under Executive Order 12333 (or a successor order); and
      Now here note the use of the word shall this means it must be done as specified.

      What do we find in Executive Order 12333? This little passage here at the start of Section 2.5:

      2.5 Attorney General Approval. The Attorney General hereby is delegated the power to approve the use for intelligence purposes, within the United States or against a United States person abroad, of any technique for which a warrant would be required if undertaken for law enforcement purposes, provided that such techniques shall not be undertaken unless the Attorney General has determined in each case that there is probable cause to believe that the technique is directed against a foreign power or an agent of a foreign power. Electronic surveillance, as defined in the Foreign Intelligence Surveillance Act of 1978, shall be conducted in accordance with that Act, as well as this Order.
      Now that is very important. The Executive Order is making a distinction of 4th Amendment protections in terms of warrants as ONLY applicable to criminal investigation and not to intelligence activities.  The part in particular being "... for which a warrant would be required if ...".  The 4th Amendment, in fact, is not limited ONLY to government actions in regards to criminal investigations. But there it is.

      Under the Executive Order authority is delegated to the Attorney General to approve data gathering without a warrant.

      Has the Supreme Court said that the 4th Amendment ONLY applies to criminal investigations and never to other intrusions by the government, that there is a warrantless exception for intelligence gathering?

      So, what we have here is part of the obfuscation surrounding the Executive Branch's narrow interpretation of the 4th Amendment and the requirements for warrants.

      They aren't getting warrants for any of this stuff.

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