Oregon State Bar Bulletin — MAY 2006

Parting Thoughts
Playing the Patriot
By Philip F. Schuster II

After the New York Times and Capitol Beltway headlines announced the president’s use of warrantless wiretaps in the "War Against Terrorism," there arose an outcry of government by secrecy. Yet, many people hold the blithe attitude, "As long as there is not another 9/11, I don’t mind if my phone is tapped at all."

So why and how does this president’s use of warrantless wiretaps impact us as attorneys in Oregon?

First, in a global economy, many of our colleagues represent people of widely diverse ethnic, racial and cultural backgrounds. Those who represent Muslim clients have expressed serious concern that their phones, or conversations with incarcerated clients, might be secretly monitored by the government.

Secondly, as Oregon attorneys, we are charged with maintaining the secrets and confidences of our clients. ORS 9.460(3). The lawyer-client privilege, ORS 40.225 (OEC Rule 503), facilitates this duty and further ensures the fair administration of justice. As attorneys will we be able to continue to furnish clients with this safeguard?

The Foreign Intelligence Surveillance Act provides that the president may authorize warrantless electronic surveillance in cases of emergency, provided that an application is made to a FISA judge for a warrant not more than 72 hours after the attorney general authorizes the surveillance. 50 USC § 1805(f).

FISA also provides for warrantless electronic surveillance when there is "a declaration of war by Congress;" however, the time for warrantless surveillance shall not "exceed 15 calendar days following a declaration of war by the Congress." 50 USC § 1811.A violation of the FISA statute constitutes a felony punishable by a fine of not more than $10,000 or imprisonment for not more than five years or both. 50 USC § 1809(c).

This president argues that the Congressional resolutions authorizing the invasion of Afghanistan and Iraq, together with his "implied" powers as chief executive and commander-in-chief, justify warrantless wiretaps to combat terrorism.

Assuming that the Afghan and Iraq resolutions, and/or the use of the War Powers Act, constitute a "declaration of war by the Congress" within the meaning of FISA § 1811, then warrantless surveillance cannot extend for a period beyond 15 calendar days following the declaration of war.

A Constitutional crisis of checks and balances is fast approaching. The mere fact that the president is able to assert authority for authorizing warrantless wiretaps, without challenge, is deeply troublesome. No judicial precedent appears to support the president’s "implied powers" argument for circumventing FISA.

Following 9/11 and the passage of the U.S.A. Patriot Act, we have seen ever-greater concentration of power in the executive branch. An amendment to § 218 of the Patriot Act now permits the FBI to certify that "intelligence" gathering is only one purpose of an "authorized investigation."

The tendency of government officials to aggressively utilize their new-found investigatory tools will profoundly affect the administration of justice in the United States. Litigation, both civil and criminal, will be trumped by executive power, where judges will feel compelled to defer, during discovery proceedings, to executive agency assertions of "national security" or "executive privilege." Such "rubber stamp" deference by courts to the executive branch will erode due process. Judges and attorneys in Oregon and elsewhere must strive to achieve the appropriate balance between the "need to know," on the part of litigants, and the government’s bona fide need to protect this country against terrorist attacks.

We must ask ourselves: Will criminal prosecution of terrorists and others be needlessly delayed because of evidence obtained without warrants? If, as the president claims, FISA is cumbersome, why cannot Congress simply authorize appropriations for a sufficient number of FISA judges to assure government accountability? What guarantees exist to preclude government officials from utilizing "warrantless intelligence" for purposes other than prevention of terrorist acts?

Let us not forget the Watergate era when President Nixon used government by secrecy for his own political agenda when this country was at war in Vietnam. Or the time during the 1950s when Sen. Joseph McCarthy instilled fear of "Communist terrorists in our midst;" and later when thousands of ICBMs with nuclear warheads were pointed at the U.S. Even then, the president was not allowed to sweep aside the Bill of Rights.

Without issuance of warrants, how will the executive branch operate with any degree of accountability? When executive branch officials are called to account by Congressional overseers, will investigations into "abuse of power" and obstruction of justice" be thwarted? Will the role of the special prosecutor become quaint?

Genuine American patriots will protect this country against its enemies while, at the same time, protecting the freedoms and liberties guaranteed by our Constitution — the very lifeblood of our democracy. Are we, as guardians of the Constitution, willing to do any less?

Philip F. Schuster II is a partner in the Portland firm of Dierking & Schuster, and an author.

© 2006 Philip F. Schuster

return to top
return to Table of Contents