Thursday, August 17, 2006

The NSA's Terrorist Surveillance Program: Is It Worth The Risk? [Part I]

The following is the first in a series of posts discussing the NSA wiretap program. The notes will appear as footnotes at the end of each portion rather than at the end. There will be four or five posts in total, spread out over the next week or so. David Kirschner is a good friend whose bio is in the second footnote. Two members of this blog had him as a professor as well - myself and CWY.


David J. Kirschner[2]

For years, the United States Government has engaged in covert surveillance and intelligence gathering. Among the most effective methods of conducting such surveillance is through electronic eavesdropping, which is the wiretapping of a telephone or “bugging” of a geographical location. Historically, the government has used electronic surveillance to spy on the former Soviet Union, China and a host of other countries presenting a threat or a perceived threat to our national security. However, the government has also used it against domestic political opponents who posed no national security threat. Administrations from Franklin D. Roosevelt to Richard Nixon permitted, and sometimes encouraged, government agencies to engage in gathering political intelligence. Electronic surveillance methods have also been used on members Congress, numerous non-mainstream and some mainstream political figures, and even Supreme Court Justices. In fact, in the 1960’s, the FBI created a counterintelligence program known as “COINTELPRO,” which was intended to disrupt groups and neutralize individuals deemed to be threats to national security. Targets included the Klu Klux Klan, the Black Panthers and Martin Luther King, Jr.

Obviously, such use, or rather misuse, is categorically unacceptable and unjustifiable. Traditionally, there exists a clear distinction between domestic criminal investigations and matters of involving issues of national security. The former guarantee’s protection to citizens, lawful permanent residents, and even in many cases even illegal aliens, from having evidence obtained in violation of the Fourth, Fifth and Sixth Amendments used against them in domestic criminal prosecutions. Conversely, foreign intelligence gathering has had little, if anything, to do with criminal domestic matters.

With the advent of terrorism and terrorist-related activities, however, exclusive reliance on such a distinction became problematic. Domestic terrorist activities could easily appear to be little more than another criminal case while simultaneously emblematic of an ongoing terrorist campaign against the United States on its soil. The obvious question, then, is whether proscribed conduct is a matter of national security or within the purview of the criminal justice system. If a person, citizen, permanent resident or nonresident, is charged with having violated a domestic criminal statute, they would be entitled to all constitutionally protected rights. When that person and his activities threaten our national security, however, it is an entirely different matter. Arguably then, intrusion of any constitutional safeguards, otherwise taboo in the prosecution of domestic crimes, might well be justified and may even be absolutely necessary to thwart terrorism. And so the pressing question is to what extent, if any, must we afford a foreign power or its agent’s constitutional protections who intend to bring unimaginable death and destruction to us on our soil? Before analyzing this question, however, consider how we are to handle agents of those foreign powers who are also citizens or permanent residents? Should the Justice Department’s criminal justice system have jurisdiction or the National Security Agency?

[1] This article is adapted from a lengthier work which, outlines the United States government’s historical and traditional use of electronic surveillance, analyzes the legal issues surrounding its use in matters of national security and examines some of the legal and practical issues presented by the Foreign Intelligence Surveillance Act (FISA) and its progeny, The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT) Act. I extend my sincerest appreciation to the following law school professors whose scholarly works on this topic provided me with a comprehensive review of these issues and greatly assisted me in preparing the background and foundation of this article: Orin S. Kerr, Associate Professor of Law at George Washington University Law School and former counsel with the Computer Crime and Intellectual Property Section of the U.S. Department of Justice’s Criminal Division. Internet Surveillance Law after the USA Patriot Act: The Big Brother That Isn’t, 97 Nw. U. L. Rev 607 (2003); Peter Swire, Professor, Moritz College of Law of the Ohio State University and John Glenn Scholar in Public Policy Research. Professor Swire also served as Chief Counselor for Privacy in the U.S. Office of Management and Budget during President Clinton’s Administration and was asked by Chief of Staff John Podesta to chair a fifteen-agency White House Working Group on how to update wiretap and other electronic surveillance law for the Internet age. The System of Foreign Intelligence Surveillance Law, 72 Geo. Wash. L. Rev. (2004). Lastly, I wish to express appreciation to my former student, Desiree Cameron, for her research assistance. The views expressed herein are exclusively those of the author and do not represent or reflect the views of the Bronx County District Attorney.

[2] David J. Kirschner is an Assistant District Attorney in Bronx County, New York, where he supervises covert investigations involving the use of electronic surveillance. As a senior member of the Investigations Division’s Rackets Bureau, Mr. Kirschner has successfully litigated cases relying upon evidence obtained through electronic eavesdropping and regularly prosecutes white collar crimes including racketeering, enterprise corruption, extortion, usury, gambling, fraud and public corruption. In addition, he frequently oversees the office’s arrest, intake and arraignment process. Mr. Kirschner also teaches trial advocacy at Hofstra Law School’s National Institute for Trial Advocacy, Cardozo Law School’s Intensive Trial Advocacy Program, and is an Adjunct Assistant Professor of Business Law with the City University of New York at Queens College and Touro College.


Anonymous Anonymous said...

Super color scheme, I like it! Keep up the good work. Thanks for sharing this wonderful site with us.

7/03/2006 12:38 PM  
Anonymous Anonymous said...

Interesting site. Useful information. Bookmarked.

7/20/2006 6:48 PM  
Anonymous Anonymous said...

I find some information here.

7/22/2006 9:06 AM  
Anonymous Anonymous said...

Can anyone recommend the well-priced Remote Desktop program for a small IT service company like mine? Does anyone use or How do they compare to these guys I found recently: N-able N-central system network
? What is your best take in cost vs performance among those three? I need a good advice please... Thanks in advance!

12/19/2009 9:48 AM  
Anonymous Anonymous said...

[url=]hip hop jewelry[/url],[url=]hip hop pendants[/url],hip hop watches,[url=]bling bling[/url] ,hip hop,[url=]hip hop chains[/url],hip hop bling,[url=]iced out chains[/url],[url=]wholesale chains[/url]
hip hop jewelry
wholesale hip hop watches
hip hop rings

2/01/2010 9:08 AM  
Anonymous jim said...

6/06/2010 2:39 AM  
Anonymous old men young boys sex stories said...

It was part of a secret defense project and wed like it back. and eventually the erect penis, through gentle thrusting and truelove for your partner cause you to ejaculate sperm into her uteruswhere just one of their wriggling, minuscule cells is soaked up by theegg and begins a new, human life.
free gay oral incest sex stories
the girls of porn stories
lesbian rape stories
interracial romance stories
rough lesbian sex stories
It was part of a secret defense project and wed like it back. and eventually the erect penis, through gentle thrusting and truelove for your partner cause you to ejaculate sperm into her uteruswhere just one of their wriggling, minuscule cells is soaked up by theegg and begins a new, human life.

12/03/2010 7:03 PM  
Blogger ninest123 said...

longchamp outlet, louboutin outlet, louboutin, polo ralph lauren outlet, nike air max, ray ban sunglasses, cheap oakley sunglasses, oakley sunglasses, burberry, gucci outlet, michael kors, nike roshe run, tiffany jewelry, jordan shoes, replica watches, longchamp pas cher, louis vuitton outlet, ray ban sunglasses, louis vuitton, replica watches, nike outlet, uggs on sale, louboutin pas cher, ugg boots, ray ban sunglasses, prada outlet, prada handbags, oakley sunglasses, tiffany and co, sac longchamp, nike free, oakley sunglasses, louis vuitton, ugg boots, air max, kate spade outlet, louis vuitton outlet, longchamp, louis vuitton, nike free, nike air max, air jordan pas cher, christian louboutin outlet, chanel handbags, oakley sunglasses, tory burch outlet, polo ralph lauren outlet, ralph lauren pas cher, longchamp outlet, louboutin shoes

7/23/2016 8:02 PM  
Blogger ninest123 said...

sac guess, hollister pas cher, michael kors, michael kors, vanessa bruno, michael kors outlet, nike blazer, michael kors outlet, michael kors outlet, nike air max, air force, michael kors outlet, ray ban pas cher, converse pas cher, coach purses, michael kors, lululemon, abercrombie and fitch, true religion jeans, true religion outlet, ray ban uk, hollister, vans pas cher, north face, new balance pas cher, hermes, replica handbags, coach outlet, kate spade handbags, michael kors outlet, oakley pas cher, nike free run uk, michael kors, nike air max, nike roshe, lacoste pas cher, ugg boots, true religion jeans, north face, ralph lauren uk, tn pas cher, burberry outlet online, hogan, ugg boots, true religion jeans, nike air max, burberry, timberland, mulberry, coach outlet

7/23/2016 8:03 PM  
Blogger ninest123 said...

mcm handbags, timberland boots, louboutin, hollister, hollister, jimmy choo shoes, lululemon, reebok shoes, giuseppe zanotti, asics running shoes, herve leger, oakley, bottega veneta, mac cosmetics, iphone cases, p90x workout, vans, north face outlet, valentino shoes, chi flat iron, ray ban, soccer jerseys, nike trainers, celine handbags, ghd, nike air max, north face outlet, new balance, converse outlet, gucci, ralph lauren, nike air max, lancel, longchamp, nike roshe, instyler, vans shoes, nfl jerseys, birkin bag, soccer shoes, baseball bats, babyliss, hollister, beats by dre, ferragamo shoes, wedding dresses, abercrombie and fitch, nike huarache, mont blanc, insanity workout

7/23/2016 8:07 PM  
Blogger ninest123 said...

montre pas cher, swarovski crystal, wedding dresses, louis vuitton, canada goose, moncler, canada goose uk, pandora charms, ugg,uggs,uggs canada, ugg pas cher, replica watches, swarovski, canada goose, moncler, moncler, thomas sabo, marc jacobs, bottes ugg, canada goose outlet, canada goose outlet, pandora jewelry, coach outlet, links of london, karen millen, moncler, toms shoes, supra shoes, louis vuitton, pandora charms, moncler, doudoune canada goose, louis vuitton, juicy couture outlet, pandora jewelry, canada goose, sac louis vuitton pas cher, louis vuitton, ugg,ugg australia,ugg italia, canada goose, moncler outlet, juicy couture outlet, hollister, moncler, ugg boots uk, moncler

7/23/2016 8:10 PM  

Post a Comment

<< Home