Saturday, January 28, 2006

A Few Clear Thoughts on the Law of Wiretapping…

Three Axioms:

  1. To wiretap a communication stream in the United States you require a court warrant.
  2. The FISA court has legal precedence in the American judicial system
  3. There is no actual international court or precedence

Three Questions

  1. Do both sides of the wiretapped communication link in the United States require a court warrant?
  2. Are all international calls adjudicated by FISA or the United States Courts?
  3. Is a FISA ruling binding in a sovereign state other than the United States?
Three Answers:

  1. No, only the target of a wiretap within the United States is covered by the warrant. This is obvious because it is unknown who is making contact or being contacted by the individual for whom the warrant is writ.
  2. The United States Courts (and thus FISA) have no power outside of the United States.
  3. Therefore, FISA court warrants have no judicial power on a communications wiretap of a targeted source outside of the United States.

Three Issues:

  1. Did the NSA target new Americans with wiretaps after those Americans (in the United States) communicated with the original target – again without a warrant? Even the New York Times journalist doesn’t make this claim, but it would be problematic legally and morally.
  2. Is it morally right to have the ability to wiretap 5.7 Billion people in the world simply because they are not US citizens?
  3. If some international court does have some law, is it binding and is it enforced?

Consequently, at least from a non-lawyer's standpoint, the NSA wiretaps are legal - and not even in a grey area. Regretfully, the 5.7 billion people in the world who are not US citizens, and who live outside our borders, are not covered by US law - to include FISA precedence and US Constitutional protections. Thus, a tap on a communications stream with the target residing outside of US judicial boundries does NOT require any court acceptance, nor any Congressional acceptance. The only hold would be an international agreement, but those are not binding.

No comments: