[I've been offline a bit for the holidays. Sorry for the delay-- just
catching up now! --Declan]
-------- Original Message --------
Subject: Did Bush Have the Legal Authority to Authorize NSA Surveillance?
Date: Sat, 17 Dec 2005 02:18:40 -0500
From: Daniel Solove <[EMAIL PROTECTED]>
To: Declan McCullagh <declan@well.com>
References: <[EMAIL PROTECTED]>
Declan,
I thought you might find this blog post to be of interest.
Did Bush Have the Legal Authority to Authorize NSA Surveillance?
http://www.concurringopinions.com/archives/2005/12/so_whats_bushs.html
From the post:
In engaging in the surveillance, the President may have ignored the
legal procedures set forth in the Foreign Intelligence Surveillance Act
(FISA) of 1978.
The FISA allows the government to engage in electronic surveillance
if it obtains a court order from the Foreign Intelligence Surveillance
Court (FISC), which meets in secret. The government must demonstrate
probable cause that the monitored party is a "foreign power" or an
"agent of a foreign power." 50 U.S.C. § 1801. If the monitored party is
a U.S. citizen, however, the goverment must establish probable cause
that the party's activities "may" or "are about to" involve a criminal
violation. Id.
FISA even provides procedures for surveillance without court orders.
Such surveillance, however, must be "solely directed" at gathering
intelligence from "foreign powers" and there must be "no substantial
likelihood that the surveillance will acquire the contents of any
communication to which a United States person is a party." 50 U.S.C. §
1802(a). The surveillance authorized by the President, however, involved
U.S. citizens, thus making § 1802 unavailable.
FISA also has § 1844, which provides that "the President, through the
Attorney general, may authorize the use of a pen register or trap and
trace device without a court order under this subchapter to acquire
foreign intelligence for a period not to exceed 15 days following a
declaration of war by Congress." 50 U.S.C. § 1844. I don't know many
details about the timing of the surveillance, but regardless of timing,
the surveillance appears to have far exceeded the limited authorization
in § 1844. The NY Times article suggests that the NSA may have engaged
in wiretaps or other forms of electronic eavesdropping extending far
beyond pen registers or trap and trace devices, which merely provide
information about the phone numbers dialed.
Thus, it appears that the President brushed FISA aside. . . .
Regards,
Dan
Daniel J. Solove
Associate Professor of Law
George Washington University Law School
-------- Original Message --------
Subject: politech submission: President Bush, NSA accused of wiretap abuse
Date: Sat, 17 Dec 2005 14:56:31 -0800
From: Ryan Paul <[EMAIL PROTECTED]>
To: declan@well.com
I wrote an article for Ars Technica about the NSA wiretap abuse
allegations, and I thought that fellow Politech readers might appreciate
it. President Bush used a classified executive order to authorize
clandestine surveillance of American citizens without judicial oversight
or public consent. My article explains the issue, examines the
allegations, and illuminates some of the implications. From my article:
"Trust is the cornerstone of democracy, and without it, our society
cannot function. The authority of the government must necessarily come
from the consent of the governed, so a government that deceives its own
people effectively concedes its own authority. Many people argue that
secrecy is necessary during a time of war, but to what end do we go to
war if we sacrifice our freedom and autonomy along the way? We must work
together, as a society, to find ways to empower intelligence agencies
without discarding our fundamental civil liberties. Such decisions must
be built upon public consensus, not the opinion of any single elected
official."
My article can be found here:
http://arstechnica.com/news.ars/post/20051217-5791.html
The original New York Times article by James Risen and Eric Lichtblau
can be found here:
http://news.com.com/2100-1028_3-5998178.html?tag=st.num
And a CNN article discussing Bush's admission and reasoning regarding
the executive order can be found here:
http://www.cnn.com/2005/POLITICS/12/17/bush.nsa/index.html
I hope that readers will consider the broader implications of this
matter. The unfortunate truth is that our federal laws effectively make
it possible for the executive branch of the government to circumvent
critical checks and balances. Although this particular set of
circumstances is probably unprecedented, numerous presidents have used
classified executive orders to implement national security directives
that have been obscured from the public. Democracy depends on
transparency, and as long as the president has the authority to issue
these sweeping classified executive orders without judicial or
congressional oversight, we will not be able to ensure that America
remains free of authoritarian influence.
--
Ryan Paul <[EMAIL PROTECTED]>
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