The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment enshrines warrant requirement that the American colonists demanded from the Framers, following their experience with British occupation. That starting point may seem like a quaint vestige from a far-away past, but when that vestige is translated into abuses of enforcement officers, then the right of all Americans to be protected from arbitrary and unfounded invasions becomes much more than a historical remembrance. The framers of the Fourth Amendment placed a check on the unfettered authority of the state, without probable cause, to conduct a search that had not been tied to the likely commission of a crime. Without the requirement that a search have a nexus to both criminal conduct and to an external authority (judge or magistrate), a soldier, a federal agent, or a policeman, could take unto himself the right to execute what was called in the colonies a "general warrant", which permitted a search of a home for "whatever" evidence that might be found.
The National Security Agency used computers to help monitor all international phone calls and e-mails of Americans in carrying out President Bush's orders to detect Al Qaeda sleeper cells. Computers would automatically search for key words and phrases, as well as other signatures possibly associated with sleeper cells. As part of the statistical analysis, computers would create records that compiled profiles of US persons. All of this activity was under way long before September 11th, with the exception of the creation of records on US persons.
NSA's domestic spying program depends on the cooperation of the nation's telecom companies. A court warrant is almost always required to monitor communications. But under the secret surveillance program authorized by the President, the National Security Agency bypassed the courts to tap telephone calls and intercept e-mails to and from the United States.
While estimates put the number of people monitered by human analysts in the thousands, the amount of people who have had some information looked at by a machine number much higher than that. Surveillance in the domestic spying program occurs in several stages, and the first stage is done by a computer-controlled system. The information that the artifical intelligence system collects comes from faxs, e-mails, and telephone calls that go into and out of the United States. This machine then shifts through all the infromation and earmarks certain items to be looked at by a human analyst. According to NSA rules, this first step is not considered an "acquisition" of information. It is only considered an "acquisition" when the information has been looked at by a human analyst.
PGP creator Phil Zimmermann noted that "A year after the 1994 Digital Telephony bill passed, the FBI disclosed plans to require the phone companies to build into their infrastructure the capacity to simultaneously wiretap 1 percent of all phone calls in all major U.S. cities. This would represent more than a thousandfold increase over previous levels in the number of phones that could be wiretapped. In previous years, there were only about a thousand court-ordered wiretaps in the United States per year, at the federal, state, and local levels combined. It's hard to see how the government could even employ enough judges to sign enough wiretap orders to wiretap 1 percent of all our phone calls, much less hire enough federal agents to sit and listen to all that traffic in real time. The only plausible way of processing that amount of traffic is a massive Orwellian application of automated voice recognition technology to sift through it all, searching for interesting keywords or searching for a particular speaker's voice."
The National Industrial Security Program Operating Manual [NISPOM] definition of an individual who is a US person is different from the State Department's International Traffic in Arms Regulation (ITAR) definition. Only a U.S. citizen is eligible for a personnel security clearance. Therefore, the NISPOM definition of U.S. person is an individual who is a U.S. citizen. The ITAR uses a broader definition of U.S. person based on a person's right to be hired if he or she is qualified for a job (employment). In other words, a U.S. contractor can employ a foreign national who has a certain immigration status as a permanent resident and give the person access to unclassified technical data without an export license. But, such employment does not establish the eligibility basis for a security clearance.
For intelligence purposes, U.S. Persons include a U.S. citizen, native-born or naturalized as well as a permanent resident alien (legally in the U.S., with the "green card"). It also includes an unincorporated association made up mostly of U.S. citizens and/or permanent resident aliens, an activity incorporated in the U.S. EXCEPT for a corporation directed and controlled by a foreign government(s).
The only document that counts is the permanent resident alien card. If a foreign national has that, he is a U.S. Person. An SSN may be a work requirement, but it does not signal that a foreign national has a "green card." Illegal aliens may have SSN and but are not U.S. Persons. Only foreign nationals who are lawfully in the US and who are permanent resident aliens are US Persons. An alien in the U.S. is not a U.S. Person unless there is specific information to the contrary. A foreigner going to a US school is not a US Person. A student visa is not the "green card" designating a permanent resident alien. A corporation or subsidiary incorporated abroad, even if partially or completely owned by a corporation incorporated in the U.S., is not a U.S. Person.
Following the September 2001 terrorist attacks in New York and Washington, Mr. Bush says he authorized the surveillance of such calls without court warrants, because part of the terrorist strategy is to place operatives inside the United States. "They blend in with the civilian population," he said. "They get their orders from overseas, and then they emerge to strike from within. We must be able to quickly detect when someone linked to al-Qaida is communicating with someone inside of America. It's one of the challenges of protecting the American people and it's one of the lessons of September the 11th."
President Bush said that the eavesdropping was legal and said it would continue. "I have the authority, both from the Constitution and the Congress, to undertake this vital program," he said. "The American people expect me to protect their lives and their civil liberties, and that's exactly what we're doing with this program. I'll continue to reauthorize this program for so long as our country faces a continuing threat from al-Qaida and related groups."
In the fall of 2001 there was substantial concern that al Qaeda and its allies were preparing to carry out another attack within the United States. Al Qaeda had demonstrated its ability to introduce agents into the United States undetected and to perpetrate devastating attacks, and it was suspected that additional agents were likely already in position within the Nation's borders. As the President has explained, unlike a conventional enemy, al Qaeda has infiltrated "our cities and communities and communicated from here in America to plot and plan with bin Laden's lieutenants in Afghanistan, Pakistan and elsewhere." To this day, finding al Qaeda sleeper agents in the United States remains one of the paramount concerns in the War on Terror. As the President has explained, "[t]he terrorists want to strike America again, and they hope to inflict even more damage than they did on September the 11th."
The President acknowledged that, to counter this threat, he authorized the NSA to intercept international communications into and out of the United States of persons linked to al Qaeda or related terrorist organizations. The same day, the Attorney General elaborated and explained that in order to intercept a communication, there must be "a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda." The purpose of these intercepts is to establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States. The President has stated that the NSA activities "ha[ve] been effective in disrupting the enemy, while safeguarding our civil liberties."
Critics from the opposition Democratic Party and some from Mr. Bush's own Republican Party say the president went around 1978 rules that would have authorized the surveillance as an emergency security measure so long as the administration got permission from a secret court within 72 hours. They say the government's eavesdropping program is illegal and violates the civil liberties of U.S. citizens.
YOUNGSTOWN SHEET & TUBE CO. ET AL. v. SAWYER. [ 343 U.S. 579 Decided June 2, 1952] MR. JUSTICE BLACK delivered the opinion of the Court.
"It is clear that if the President had authority to issue the order he did, it must be found in some provision of the Constitution. And it is not claimed that express constitutional language grants this power to the President. The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that "The executive Power shall be vested in a President . . ."; that "he shall take Care that the Laws be faithfully executed"; and that he "shall be Commander in Chief of the Army and Navy of the United States." .....
"In the framework of our Constitution, the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker. The Constitution limits his functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. The first section of the first article says that "All legislative Powers herein granted shall be vested in a Congress of the United States . . . ."
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