From: nobody@shell.portal.com
Date: Thu, 10 Feb 94 01:22:11 PST
To: cypherpunks@toad.com
Subject: "national security" exception to wiretap laws
Message-ID: <199402100915.BAA08778@jobe.shell.portal.com>
MIME-Version: 1.0
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18 USC s 2511(2)(f):
 Nothing contained in this chapter or chapter 121, or section 705 of the
 Communications Act of 1934, shall be deemed to affect the acquisition by the
 United States Government of foreign intelligence information from international
 or foreign communications, or foreign intelligence activities conducted in
 accordance with otherwise applicable Federal law involving a foreign electronic
 communications system, utilizing a means other than electronic surveillance as
 defined in section 101 of the Foreign Intelligence Surveillance Act of 1978,
 and procedures in this chapter and the Foreign Intelligence Surveillance Act of
 1978 shall be the exclusive means by which electronic surveillance, as defined
 in section 101 of such Act, and the interception of domestic wire and oral
 communications may be conducted.

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 [From USCA annotations for 18 USC s 2511]

  13. Executive powers

  This chapter providing that nothing therein should be deemed to limit the
 constitutional power of the President to protect the United States against any
 clear and present danger to the structure or existence of the government did
 not constitute a grant of power and was not intended to expand, contract or
 define whatever presidential surveillance powers existed in matters affecting
 national security, but was only intended to make clear that this chapter should
 not be interpreted to limit or disturb such power as the President might have
 under the Constitution.  U.S. v. U.S. Dist. Court for Eastern Dist. of Mich.,
 Southern Division, Mich.1972, 92 S.Ct. 2125, 407 U.S. 297, 32 L.Ed.2d 752.

  Former Attorney General was entitled to qualified immunity in civil damage
 action based upon wiretaps, where sufficient facts were alleged to place
 wiretap in rational national security context.  Ellsberg v. Mitchell, 1986, 807
 F.2d 204, 257 U.S.App.D.C. 59, certiorari denied 108 S.Ct. 197, 484 U.S. 870,
 98 L.Ed.2d 148.

  Former national security council staff member's admission that he had access
 to option papers discussing possibility of Cambodian bombing operation, secret
 talks with North Vietnamese, and withdrawal of troops from Vietnam, as well as
 contingency planning in event that such steps might be taken, together with
 evidence that staff member had roomed with reporter who wrote article reporting
 classified bombing raids on Cambodia, was sufficient to establish reasonable
 national security grounds for wiretap of staff member's phone so as to entitle
 government officials who ordered wiretap to qualified immunity defense in civil
 damage action brought by staff member.  Halperin v. Kissinger, 1986, 807 F.2d
 180, 257 U.S.App.D.C. 35.

  Those provisions of this chapter which, in the context of pure intelligence-
 gathering activities, would frustrate the constitutional power of the
 President, cannot be applied to such surveillance.  (Per Wright, Circuit Judge,
 with three Judges concurring and three additional Judges concurring in the
 judgment.)  Zweibon v. Mitchell, 1975, 516 F.2d 594, 170 U.S.App.D.C. 1,
 certiorari denied 96 S.Ct. 1684, 1685, 425 U.S. 944, 48 L.Ed.2d 187.

  Restrictions upon the President's power which are appropriate in cases of
 domestic security become artificial in the context of the international
 sphere.  U.S. v. Brown, C.A.La.1973, 484 F.2d 418, certiorari denied 94 S.Ct.
 1490, 415 U.S. 960, 39 L.Ed.2d 575.

  Whatever constitutional power lies without scope of this chapter and is
 invested in chief executive to authorize warrantless surveillance for sake of
 "national security," necessary prerequisite to administration of such power is
 express approval by President or Attorney General.  U.S. v. Kearney,
 D.C.N.Y.1977, 436 F.Supp. 1108.