No Checks or Balances in Warrantless Wiretapping Despite Holder's Assurances
Trevor Timm
Thursday, March 8, 2012
EFF

Attorney General Eric Holder gave a much publicized speech at Northwestern law school on Monday, in which he attempted to explain the Obama administration’s constitutional authority for killing U.S. citizens abroad without judicial oversight. Holder in part claimed that there is a difference between “due process” and “judicial process”, the latter of which — according to him — is not guaranteed under the Constitution. The speech was predictably and widely criticized in legal circles on Fifth Amendment grounds, but an overlooked section of his speech should also give constitutional experts pause: Holder’s stance on the FISA Amendments Act (FAA) and warrantless wiretapping.

Holder spent a portion of his speech arguing that legal tools used to fight terrorism (excluding the killing of al-Awlaki and other American citizens overseas) are rightly subject to “check and balances” and “a comprehensive regime of oversight by all three branches of government.” He curiously used section 2702 of the FAA as his prime example, a law he says “protect the privacy and civil rights of innocent individuals.”

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