NP

[Mark Kohut]

I, too, wanted a different vote on this bill. I could say a lot more but I
will say that the Dem congresspeople, like most constitutional lawyers
do not believe the bill IS unconstitutional. Lotsa relevant decisions
--precedent as they say in law; that rule of law which is not raw power---

Below is a recent [Dec 2017] statement and explication of all the federal
court decisions which lead most lawyers to the opinion above. .

If there have not been the right challenges made to make the case, I know
nothing more and, as we know, it will take more cases being argued and
decided
.
If more relevant cases are still to come before the courts, we will see.

The phrase "ruling by raw power", which is one of those load-the-dice
argumentative moves which condemns itself after whatever one thinks of the
decisions and the nature of our courts and its decisions. (I too hate the
rightward packing of many of our courts...and esp The Supremes for the
cases that get that far.

*Section 702 is Constitutional and Well-Regulated*

Unfortunately, advocacy groups and even key lawmakers in Congress continue
to erroneously suggest that Section 702 is unconstitutional. In June 2017,
for example, the House Freedom Caucus Board released a statement claiming
that “surveillance activities under the FISA Amendments Act have violated
Americans’ constitutionally protected rights.” In reality, however, *every
single federal court *(including, notably, the Ninth Circuit Court of
Appeals) sitting in review of Section 702 in connection with its use in
national security prosecutions has found it statutorily authorized by
Congress and constitutional as applied.

In November 2015, then-Chief Judge Thomas F. Hogan of the FISC approved
reauthorization of the government’s Section 702 “certifications” and
“procedures.” Hogan used his authority under 50 U.S.C. § 1803(i)(2), to
appoint an *amicus curiae* to help the court decide the “novel or
significant” legal issues involved in analyzing Section 702. The *amicus
curiae* argued that the government’s targeting and minimization procedures
under Section 702 as implemented by the FBI were unconstitutional. Notably,
the *amicus curiae* did not in any way suggest that the FBI was required to
obtain a warrant to obtain intercepts captured pursuant to Section 702.
However, Hogan disagreed with the concerns about targeting and minimization
procedures, finding the government’s procedures were consistent with the
Fourth Amendment because they struck “a reasonable balance between the
privacy interests of United States persons and persons in the United
States, on the one hand, and the government’s national security interests,
on the other.” Later that month, in *United States v. Muhotorov*,
<https://www.leagle.com/decision/inadvfdco170411000103> Judge John L. Kane
of the United States District Court for the District of Colorado relied on
similar reasoning to reject a constitutional challenge to Section 702. Like
Hogan, Kane focused on the balancing of interests required under a Fourth
Amendment reasonableness analysis. After careful consideration of that
balance, Kane concluded that Section 702 “passes the Fourth Amendment
test.” In March 2016, Judge John Gleeson of the United States District
Court for the Eastern District of New York considered a constitutional
challenge to Section 702 in *United States v. Hasbajrami*
<https://www.leagle.com/decision/infdco20160317843>. Gleeson thoroughly
analyzed Section 702, and like Hogan, ultimately applied a balancing test
to conclude that the government’s program was “reasonable under the Fourth
Amendment.” And most recently, in December 2016, the United States Court of
Appeals for the Ninth Circuit in *United States v. Mohamud*
<https://cdn.ca9.uscourts.gov/datastore/opinions/2016/12/05/14-30217.pdf>denied
a constitutional challenge to the program. Writing for the court, Judge
John B. Owens followed suit with the aforementioned judges and applied a
balancing test to conclude that the program was “reasonable” as applied.

To the extent that anyone might suggest that the law on incidental
interception is “unsettled” (which it is not) it is also worth considering,
as Judge Gleeson did in *United States v. H**asbajrami*
<https://www.leagle.com/decision/infdco20160317843>*,* the Supreme Court’s
ruling in this area. In *United States v. Kahn*
<https://www.law.cornell.edu/supremecourt/text/415/143>, the Supreme Court
found that the incidental interception of an individual’s conversations on
her home telephone was not a violation of the Fourth Amendment, because her
criminal activities were not foreseen when a Title III wiretap order was
issued. Other courts to address the incidental interception issue in other
contexts have found similarly and no meaningful distinction between the
constitutionality of incidental interception under the Section 702 program
and incidental interception through other lawful surveillance has been
identified. For example, in *United States v. Figueroa*
<https://www.leagle.com/cite/757%20F.2d%20466>*, *the Second Circuit found
that Title III allowed for the interception of conversations of “others as
yet unknown,” (i.e.*,* unknown third parties) and that allowance “d[id] not
render a statute [] unconstitutional on its face as authorizing a general
warrant.” In *United States v. Butenko*
<https://www.leagle.com/cite/494%20F.2d%20593>*, *the Third Circuit upheld
the constitutionality of warrantless surveillance for foreign intelligence
purposes even though “conversations ... of American citizens [might] be
overheard.” Similarly, in *United States v. Bin Laden*
<https://www.leagle.com/cite/126%20F.Supp.2d%20264>, the Southern District
of New York found that “incidental interception of a person's conversations
during an otherwise lawful surveillance is not violative of the Fourth
Amendment.”

In addition to judicial review, Section 702 procedures are subject to
extensive oversight within the executive branch, including routine reviews
by the Department of Justice and the Office of the Director of National
Intelligence, not to mention broader review by the internal legal counsel
at the government’s key national security agencies, including the FBI, the
CIA, and the NSA’s general counsel offices. To the extent that the FBI
seeks to use Section 702 information in a national security prosecution, a
second review of the legality of the interception occurs within the
Department of Justice and by lawyers in the United States intelligence
community (IC). Congressional committees also receive regular reporting on
the program. And while it is true that these extensive review processes
have revealed incidents of non-compliance with the statute, issues have
arisen in an extremely small number of cases. According to the
independently commissioned PCLOB, the rate of compliance issues for Section
702 searches has been “substantially below one percent” since the program’s
initiation. Most importantly, to date, *there has been absolutely no
indication that the government has ever attempted to circumvent or violate
the safeguarding procedures required by Section 702. *
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://waste.org/pipermail/pynchon-l/attachments/20180116/8bfc0e40/attachment.html>