Plaintiffs American Civil Liberties Union, et al. have alleged that the TSP violates their free speech and associational rights, as guaranteed by the First Amendment; their privacy rights, as guaranteed by the Fourth Amendment; that the principle of the Separation of Powers because the TSP has been authorized by the President in excess of his Executive Power under Article II of the Constitution; and that it is conducted without observation of any of the procedures required either by law or by the Constitution.
Amici, members of Congress, elected by the citizens of the United States to enact legislations binding on all, including the President, support plaintiffs’ stance that the actions of the NSA are violative of duly enacted legislation as well as the Constitution of the United States, for the reasons below stated. First and Fourth Amendment Rights First and Fourth Amendment rights are of paramount consideration under the United States Constitution. These rights are intertwined, as the court wrote in Marcus v. Search Warrants, 367 U. S.
717 (1961): “Historically the struggle for freedom of speech and press in England was bound up with the issue of the scope of the search and seizure. . . . This history was, of course, part of the intellectual matrix within which our own constitutional fabric was shaped. The Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. ” A violation of Fourth Amendment rights results, therefore, as a necessary consequence, to a violation of First Amendment rights.
It has been held that the warrant requirement under the Fourth Amendment is also applicable to electronic surveillances. In the case of Katz vs. United States, 389 U. S. 347 (1967), the Court declared that surveillances conducted for domestic security must undergo the process of procuring judicial warrant. In the absence of a judicial stamp of approval upon the intended act of domestic surveillance, such is per se unreasonable, subject only to a few well-defined exceptions.
In the case of United States vs. United States District Court, 407 US 297 (1972), the court held that freedoms guaranteed under the Fourth Amendment would be wantonly and capriciously violated if the Executive branch is given unbridled access and discretion to conduct such warrantless domestic surveillances. The Fourth Amendment requires a finding of probable cause by a judicial magistrate and, absent such requisite, the search and seizure conducted becomes unconstitutional.
This directive is imposed upon the executive branch whose duty is to ensure that the laws are faithfully executed. The court found therefore the need to strike a balance between the “the duty of Government to protect the domestic security, and the potential danger posed by unreasonable surveillance to individual privacy and free expression,” Justice Powell wrote that the inconvenience to the government is “justified in a free society to protect constitutional values. ”
That the warrant requirement is also applicable to electronic surveillances is only reasonable as First and Fourth Amendment rights were included in the United States Constitution to guard against executive abuses of power. Separation of Powers It was also argued that the chief executive has broad enough powers to conduct warrantless surveillances by virtue of the Commander-in-Chief powers granted to him by the Constitution. The argument is based upon court decisions such as United States vs.
Truong Dinh Hung, 629 F. 2d 908 (4th Cir. 1980), United States vs. Butenko, 494 F. 2d 593 (3rd Cir. 1974) and United States vs. Brown, 484 F. 2d 418 (Fifth Cir. 1973), which recognize such authority as inherent and cannot be encroached by legislation. However, to sustain such argument would violate the principle of separation of powers. The concurring opinion of Justice Jackson in the case Youngstown Sheet & Tube v. Sawyer, 343 U. S. 579 (1952) has become authoritative.
It was stated that, “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for he can rely only upon his own Constitutional powers minus any Constitutional powers of Congress over the matter. ” . Justice Taylor expounded on such pronouncement of Justice Jackson, stating that, “although the Constitution had diffused powers the better to secure liberty, the powers of the President are not fixed, but fluctuate, depending upon their junctures with the actions of Congress.
Thus, if the President acted pursuant to an express or implied authorization by Congress, his power was at it maximum, or zenith. If he acted in absence of Congressional action, he was in a zone of twilight reliant upon only his own independent powers. ” Moreover, assuming arguendo that the chief executive indeed has the inherent authority to conduct warrantless surveillances by virtue of his Commander-in-Chief powers, such power can be regulated by Congress through legislation.
Such regulation consists in laying down of reasonable procedures which must be complied with before the exercise of the power becomes authorized. The inherent authority therefore is subject to acts of Congress since legislative power is plenary and cannot be subject “to presidential and military supervision and control. ” This legislation is the FISA. Congress even provided that this statutory procedure laid down “shall be the exclusive means for conducting electronic surveillances,” which precludes the chief executive from exercising the power in a discretionary manner. The FISA
The FISA (Foreign Intelligence Surveillance Act) was enacted by Congress in 1978 “to restore and preserve Americans’ confidence in their ability to engage in the ‘public activity’ and ‘dissent from official policy’ at the heart of civil rights advocacy and meaningful public debate” after the publication of reports by the Church Committee exposing United States intelligence agencies, their operations, and abuses of the law they had committed. Since the purpose of the legislation was precisely to regulate the collection of “foreign intelligence” information in furtherance of U. S.
counterintelligence in order to curb violations and abuses of power, it established certain essential requirements that the executive has to comply with first before electronic surveillances maybe undertaken by its agencies. Judicial approval is a prerequisite, a finding of probable cause that the target of surveillance is a foreign power or an agent of such, without which the executive cannot extend its strong arm, supposedly in the interest of national security. Its justification that national security requires such operations must be subjected to judicial scrutiny first, and not merely as an afterthought or a backdoor.
It is specifically stated in the FISA that electronic surveillance is prohibited, unless authorized by statute. The Administration uses this provision to justify the legality of its acts and declares that under the AUMF (Authorization for the Use of Military Force), it is authorized to conduct such surveillances in light of the September 11 attacks which necessitates it to “exercise its right to self-defense and to protect US citizens both home and abroad. ” Such argument is directly antithetical to what Congress has designed as a necessary limitation to the national security power.
It was never the intent of Congress to give the executive a wide, almost unbridled, latitude in conducting electronic surveillances because it recognized the inherent danger and propensity of such power to be abused. U. S. Senate Majority Floor Leader Tom Daschle affirms this for a fact. When the AUMF was enacted, the Administration requested a last-minute change to the legislation and to authorize it to exercise powers appropriate and necessary against those who committed or aided the September 11 attacks.
However, such request was rejected because Congress recognized that such power can be directed even against citizens of the United States. Moreover, the AUMF can hardly be regarded as a statute, within the context of the FISA. Conclusion We fully support the efforts of the government to gather information regarding terrorist groups and to seek legitimate means to prevent their efforts to attack Americans. However, legislation was laid down in order that this information-gathering be conducted within the reasonable bounds of the law. We therefore submit that this Court grant plaintiffs’ motion for summary judgment.
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