Koh (Dean Yale Law School): Spy programs are illegal

[ProSense]

Published Wednesday, March 1, 2006

Koh: Spy programs are illegal

Dean tells senators that domestic wiretapping violates the Constitution

BY ANDREW MANGINO
Staff Reporter


WASHINGTON, D.C. -- Yale Law School Dean Harold Koh told the Senate Judiciary Committee on Tuesday that the National Security Agency's domestic spying program initiated after Sept. 11, 2001, is a "blatantly illegal" program that reduces Congressional oversight to a "pointless rubber stamp."

In his testimony, Koh accused President George W. Bush '68 of violating the Fourth Amendment and relying on an unconstitutional theory of executive authority. Although the seven panelists' views of the NSA program differed -- three panelists backed the program, while four spoke in opposition -- each emphasized in opening statements that much is at stake, from the ability of the president to prevent further terrorist attacks to the preservation of civil liberties for unborn citizens.

"It's not just about wiretapping," Koh said in his opening statements. "It's about the meaning of the 'National Security Constitution.' Is it one of presidential power or is it one of shared power?"

Koh arrived at the Dirksen Senate Office Building a little before 9:30 a.m. with about 20 pages of prepared testimony. In the minutes before Senate Judiciary Committee Chairman Arlen Specter LAW '56 struck his gavel, Koh introduced his son, William Koh, a high school sophomore, to other members of the panel, which included former CIA Director James Woolsey LAW '68, a supporter of the program, and lawyer Bruce Fein, a former government official under Republican administrations who was critical of the program.

more...

http://www.yaledailynews.com/article.asp?AID=32118

[Maat]

1. I wrote to my bar exam tutor, and threatened to put ..

"The Fourth Amendment prohibits unreasonable searches and seizures ... unless Booosh feels like it."

That was what I threatened to put on the Cal Bar Exam.

He laughed, and told me to put what I was taught in school, and just ignore Booosh.

Made me mad.

The bar examiners' grades are based on us discussing the Fourth with its limited exceptions, such as the search incident to an arrest. And, if I put the above, they would flunk me. It is as if our legal scholars are ignoring what is happening.

At least Dean Koh is speaking up! And that monster Specter has the nerve to disagree with him!

Scandalous!

[ProSense]

2. It's Time to Appoint a Special Prosecutor ... (illegal spying)

It's Time to Appoint a Special Prosecutor to Investigate the President's Actions With Respect to the NSA's Warrantless Wiretapping

By JENNIFER VAN BERGEN
----
Wednesday, Mar. 01, 2006

Snip...

In the recent White Paper, the Administration claimed that rules of statutory interpretation actually cut the other way. But these claims are not convincing. First, it claimed that in order to avoid constitutional conflict, any ambiguity as to how to interpret FISA and the AUMF ought to be resolved in the President's favor. But one could more persuasively argue that to avoid constitutional conflict, the ambiguity should be resolved in Congress' favor - after all, that result would honor the constitutional power balance. Indeed, it would stabilize that balance by fulfilling the settled expectations created by those longstanding, sensible rules of statutory construction that say that specific statutes govern the specific areas they address, unless specifically superseded.

Second, the Administration claimed that if FISA weren't read its way, then it would be unconstitutional as applied to NSA wiretapping, presumably because it interferes with Presidential power. But that contention, too, is odd, and wrong.

Here's why: The Fourth Amendment requires a warrant for searches. The Supreme Court has held, in United States v. Katz, that wiretapping is a search, falling within the Fourth Amendment. FISA says it's okay for the federal government to get that warrant from the FISA court, rather than a federal court, in intelligence-related cases. But even if FISA disappeared tomorrow, the Fourth Amendment wouldn't.

A warrant still would be required - from the federal courts, which currently grant warrants in non-intelligence-related investigations. And one fact that no one has denied is that for the NSA's wiretapping program, no warrant was ever procured. So unless the Administration is going to claim that the Fourth Amendment itself is unconstitutional, it's out of luck with this argument.

more...

http://writ.news.findlaw.com/commentary/20060301_bergen.html