I believe I might be onto something, but I'm a little confused by it all. Can some of the more legal experts please respond to the information and research on this subject? The reason why is I want to understand more about it. Did the FISA Courts deny Bush the wiretap ability or did they say it was ok, but they had to receive the information and the defendents must be receive information on why they are being watched?
First off lets take a look at
this link
This court, known as the Foreign Intelligence Surveillance Act (FISA) Court, refused to approve of certain procedures proposed by Attorney General Ashcroft. In an unprecedented move, it also publicly released its ruling this August. The dispute, however, had been going on since May, when the Court announced its dissatisfaction with the procedures and its belief that they were contrary to existing federal law.
This paragraph leads me to believe that they disapproved the wiretapping.
Yet this
Press Release from the ALCU seems to say different. Then when I go deeper in the first I see this.
When the FISA court rejected the procedures, it ruled that they would give prosecutors too much control over counterintelligence investigations, and would allow the government potentially to misuse intelligence information for criminal cases.
The FISA court was absolutely correct in its ruling - and in the midst of a dramatic expansion of executive power, it is laudable that the judiciary has in this instance done the right thing. The traditional separations between counterintelligence and criminal law enforcement should be preserved unless Congress gives the Justice Department a clear mandate to relax them - which it has not yet done.
The case is currently on appeal to the FISA Court of Review, a special three-judge panel that oversees the surveillance court. This appeal constitutes the first formal challenge to the FISA court's decisionmaking in its 23-year history. The Court of Review should affirm the ruling.
In the United States, counterintelligence and traditional criminal investigations have been treated as separate and distinct processes since the late 1970s. Monitoring spies is different from trying to catch a thief. The Justice Department's proposed procedures seem to put an end to this important distinction.
You see how I am confused by the information I'm finding on this subject. Because of that I did some deeper research to read more. Here is one link talking about it
http://www.pbs.org/...
GREGORY NOJEIM: I think the court got it right. What's at stake here is whether when the government suspects that a person is a criminal, that they're involved in crime, whether it's going to have to show strong evidence of crime before it's allowed to read their e-mails, listen in on their telephone conversations, and rifle through their bedroom dresser drawer.
The stakes couldn't be higher. What the court did was it said that the government can't evade that requirement of showing evidence of crime by using this intelligence rubric. And we think that the court got it right, in that the decision will keep us both safe and free.
It becomes a little clearer here, but I'm still confused.
GREGORY NOJEIM: No. This case was not primarily about the sharing of information. It was about who directs the collection of intelligence information. The Department of Justice wants prosecutors to do that, the people who charge people with crimes, to do that. And the court is saying no, no, no, that is something that would happen, prosecutors directing the collection of information, in a criminal wiretap.
And there's a whole different law about using criminal wiretaps. And the reason this is important is because when the defendant gets into court in a criminal case, he'll get access to the information that supports that wiretap order. But in an intelligence case it's all secret. And openness is one of the protections that the defendant has when he's in court.
Could one of the reasons Bush by passed the courts is because in 2002 the FISA court said they couldn't classify wiretapping as gathering intelligence and that the defendant would have to be informed if they do a wiretapping? This is where I'm confused. Again I believe there might be something here, but I'm asking for people who more experienced and knowledge to comment. I'm also interesting in what your views are because it seems to me that there is a chance Bush violated the FISA because they would have to provide information that they wanted to keep secret from the public and the people being wiretapped.
More links and resources Here, Here, Here,
Here,
and Here