No Checks or Balances in Warrantless Wiretapping Despite Holder’s Assurances
March 9, 2012
Electronic Frontier Foundation
By Trevor Timm
“It’s pretty sad that the government is this afraid of its own people. Only a corrupt and paranoid organization would act like this.” –KTRN
Attorney General Eric Holder gave a much publicized speech at Northwestern law school on Monday, in which he attempted to explain the Obama administration’s constitutional authority for killing U.S. citizens abroad without judicial oversight. Holder in part claimed that there is a difference between “due process” and “judicial process”, the latter of which—according to him—is not guaranteed under the Constitution. The speech was predictably and widely criticized in legal circles on Fifth Amendment grounds (see here, here, here, here, and here),but an overlooked section of his speech should also give constitutional experts pause: Holder’s stance on the FISA Amendments Act (FAA) and warrantless wiretapping.
Holder spent a portion of his speech arguing that legal tools used to fight terrorism (excluding the killing of al-Awlaki and other American citizens overseas) are rightly subject to “check and balances” and “a comprehensive regime of oversight by all three branches of government.” He curiously used section 2702 of the FAA as his prime example, a law he says “protect[s] the privacy and civil rights of innocent individuals.”
As EFF readers will remember, the FAA is the statute Congress passed giving immunity to telecom companies despite their participation in the NSA’s massive warrantless wiretapping program, which the New York Times first exposed in 2005. EFF and a host of other civil liberties groups have been involved in litigation challenging the constitutionality of warrantless wiretapping for years.
Former member of the Obama administration’s Office of Legal Counsel Marty Lederman explains section 702 of the FAA “permits the NSA to intercept phone calls and e-mails between the U.S. and a foreign location, without making any showing to a court and without judicial oversight, whether or not the communication has anything to do with al Qaeda—indeed, even if there is no evidence that the communication has anything to do with terrorism, or any threat to national security.” All told, the “collection systems at the National Security Agency intercept and store 1.7 billion e-mails, phone calls and other types of communications” every day, according to the Washington Post.