[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 <djsolove@private> To: Declan McCullagh <declan@private> References: <43A041B1.1070508@private> 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 <gaerdin@private> To: declan@private 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 <gaerdin@private> _______________________________________________ Politech mailing list Archived at http://www.politechbot.com/ Moderated by Declan McCullagh (http://www.mccullagh.org/)
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