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ACLU ON NSA Spying on Americans
From: David Farber <dave () farber net>
Date: Thu, 29 Dec 2005 23:25:25 -0500
Begin forwarded message: From: Barry Steinhardt <bsteinhardt () aclu org> Date: December 29, 2005 8:15:03 PM EST To: David Farber <dave () farber net> Subject: NSA Spying on Americans Dave,As has been made plain by the many submissions to IP, the significance of
the Bush/NSA spying scandal continues to grow each day.The ACLU has just posted a number of materials on our web site aclu.org and
the new nsawatch.org that we hope will add to the debate. Those items include: 1. A new ACLU ad calling for a special counsel to investigate the President's illegal surveillance of U.S. Citizens.The add appeared intoday's NY Times, as well as the web site along with related materials at
http://www.aclu.org/safefree/spying/.The text of the ad compares the words of President Nixon and President Bush,
both of whom denied allegations of illegal spying. Next to the image ofNixon, the advertisement says: "He lied to the American people and broke the law." Below that is an image of President Bush, with the words, "So did he.
2. The Updated NSA Watch site (formerly known as Echelon watch): http://www.nsawatch.org/ which contains a wide variety of materials and links documenting the NSA's extraordinary communication interception capabilities ("sigint"), which are part of an international arrangement sometimes referred to as "Echelon". 3 A new piece explaining how the "NSA Spying on Americans is Illegal" at http://www.aclu.org/privacy/spying/23279res20051229.htmlSince the Administration has sought to cast its unprecedented and lawless
spying on American's as "legal", I have included the text of our piecebelow. You are, of course, free to use as much or little of it and the rest
of this message as you would like. Have a good New Year, Barry Steinhardt ACLU Technology and Liberty Project NSA Spying on Americans is Illegal http://www.aclu.org/privacy/spying/23279res20051229.htmlWhat if it emerged that the President of the United States was flagrantly
violating the Constitution and a law passed by the Congress to protectAmericans against abuses by a super-secret spy agency? What if, instead of apologizing, he said, in essence, “I have the power to do that, because I say I can.” That frightening scenario is exactly what we are now witnessing in the case of the warrantless NSA spying ordered by President Bush that was
reported December 16, 2005 by the New York Times.According to the Times, Bush signed a presidential order in 2002 allowing the National Security Agency to monitor without a warrant the international (and sometimes domestic) telephone calls and e-mail messages of hundreds or
thousands of citizens and legal residents inside the United States. Theprogram eventually came to include some purely internal controls – but no
requirement that warrants be obtained from the Foreign IntelligenceSurveillance Court as the 4th Amendment to the Constitution and the foreign
intelligence surveillance laws require. In other words, no independent review or judicial oversight. That kind of surveillance is illegal. Period. The day after this shocking abuse of power became public, President Bushadmitted that he had authorized it, but argued that he had the authority to do so. But the law governing government eavesdropping on American citizens is well-established and crystal clear. President Bush’s claim that he is not bound by that law is simply astounding. It is a Presidential power grab that poses a challenge in the deepest sense to the integrity of the American system of government – the separation of powers between the legislative and executive branches, the concept of checks and balances on executive power, the notion that the president is subject to the law like everyone else, and
the general respect for the “rule of law” on which our democratic system depends. Flouting a long history The tensions between the need for intelligence agencies to protect thenation and the danger that they would become a domestic spy agency have been
explicitly and repeatedly fought out in American history. The National Security Act of 1947 contained a specific ban on intelligence operatives from operating domestically. In the 1970s, America learned about theextensive domestic political spying carried out by the FBI, the military, the CIA, and the NSA, and Congress passed new laws to prevent a repeat of those abuses. Surveillance laws were debated and modified under presidents
Ford, Carter, Reagan, Bush Sr. and Clinton. But, President Bush would sweep aside this entire body of democraticallydebated and painstakingly crafted restrictions on domestic surveillance by
the executive branch with his extraordinary assertion that he can simply ignore this law because he is the Commander-in-Chief. In a December 17 radio address, for example, Bush asserted that the spying was “fullyconsistent with my constitutional responsibilities and authorities.” But
his constitutional duty is to “take care that the laws be faithfully executed” (Article II, Section 3); the law here clearly establisheswell-defined procedures for eavesdropping on U.S. persons, and the fact is,
Bush ordered that those procedures not be followed.Government eavesdropping on Americans is an extremely serious matter; the ability to intrude on the private realm is a tremendous power that can be
used to monitor, embarrass, control, disgrace, or ruin an individual.Because it is so invasive, the technology of wiretapping has been subject to carefully crafted statutory controls almost since it was invented. Ignoring those controls and wiretapping without a court order is a crime that carries a significant prison sentence (in fact, criminal violations of the wiretap
statute were among the articles of impeachment that were drafted against President Nixon shortly before his resignation). Clearly Illegal Unfortunately, although the law in this matter is crystal clear, many Americans, faced with President Bush’s bold assertions of “inherent”authority for these actions, will not know what to believe. There are only
5 points they need to understand:Point #1: Electronic surveillance by the Government is strictly limited by
the Constitution and Federal Law The law on surveillance begins with the Fourth Amendment to the Constitution, which states clearly that Americans’ privacy may not be invaded without a warrant based on probable cause. United States ConstitutionFourth Amendment The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures,shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized. (emphasis added) The US Supreme Court (US v. Katz 389 US 347) has made it clear that thiscore privacy protection does cover government eavesdropping. As a result,
all electronic surveillance by the government in the United States isillegal, unless it falls under one of a small number of precise exceptions
specifically carved out in the law. United States Code Title 50, Chapter 36, Subchapter 1 Section 1809. Criminal sanctions (a) Prohibited activities A person is guilty of an offense if heintentionally— (1) engages in electronic surveillance under color of law
except as authorized by statute In other words, the NSA can only spy where it is explicitly grantedpermission to do so by statute. Citizens concerned about surveillance do
not have to answer the question, “what law restricts the NSA’s spying?”Rather, the government is required to supply an answer to the question “what
law permits the NSA to spy?” Point #2: There are only three laws that permit the government to spy There are only three laws that authorize any exceptions to the ban onelectronic eavesdropping by the government. Congress has explicitly stated that these three laws are the exclusive means by which domestic electronic
surveillance can be carried out (18 USC, Section 2511(2)(f)). They are: · Title III and ECPA. Title III and the Electronic CommunicationsPrivacy Act make up the statutes that govern criminal wiretaps in the United
States. · FISA. The Foreign Intelligence Surveillance Act is the law that governs eavesdropping on agents of “foreign powers” within the United States, including suspected foreign terrorists. Point #3: The Bush-NSA spying was not authorized by any of these lawsTitle III and ECPA govern domestic criminal wiretaps and are not relevant to the NSA’s spying. FISA is the law under which the NSA should have operated. It authorizes the government to conduct surveillance in certain situations without meeting all of the requirements of the Fourth Amendment that apply under criminal law, but requires that an independent Foreign Intelligence Surveillance Court oversee that surveillance to make sure that Americans who have no ties to foreign terrorist organizations or other “foreign powers”
are not spied upon. FISA was significantly loosened by the Patriot Act (which, for example,allowed it to be used for some criminal investigations), and parts of it now stand in clear violation of the Constitution’s Fourth Amendment in the view of the ACLU and many others. However, even the post-Patriot Act version of FISA does not authorize the president to conduct warrantless eavesdropping on U.S. citizens or permanent legal residents in the U.S. without an order from the FISA Court. Yet it is that very court order requirement – imposed
to protect innocent Americans – that the President has ignored.In fact, one member of the FISA Court, Judge James Roberston, has apparently resigned from the court in protest of President Bush's secret authorization
of this program. And the New York Times reported that the court’s chiefjudge complained about the program when she was (belatedly) notified of it, and refused to allow information gathered under the program to be used as
the basis for FISA wiretap orders.Point #4: Congress’s post-9/11 use-of-force resolution does not legitimize
the Bush-NSA spyingCongress after 9/11 approved an Authorization to Use Military Force against
those responsible for the attacks in order to authorize the president to conduct foreign military operations such as the invasion of Afghanistan.But that resolution contains no language changing, overriding or repealing any laws passed by Congress. Congress does not repeal legislation through hints and innuendos, and the Authorization to Use Military Force does not authorize the president to violate the law against surveillance without a
warrant any more than it authorizes him to carry out an armed robbery orseize control of Citibank in order to pay for operations against terrorists. In fact, when President Truman tried to seize control of steel mills that were gripped by strikes in 1952, the Supreme Court decisively rejected his
authority to make such a seizure, even in the face of arguments that thestrike would interfere with the supply of weapons and ammunition to American troops then under fire on the battlefields of the Korean War. The Supreme
Court also rejected similar assertions of inherent executive power by Richard Nixon. U.S. Supreme Court YOUNGSTOWN CO. v. SAWYER, 343 U.S. 579 (1952)“The order cannot properly be sustained as an exercise of the President’s military power as Commander in Chief of the Armed Forces. . . . “Nor can
the seizure order be sustained because of the several constitutional provisions that grant executive power to the President. . . . The Constitution limits his functions in the lawmaking process to therecommending of laws he thinks wise and the vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal about who shall make laws which the President is to execute. . . . “The Founders of this Nation
entrusted the lawmaking power to the Congress alone in both good and bad times.”In fact, FISA contains explicit language describing the president’s powers “during time of war” and provides that “the President, through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for a period not to
exceed fifteen days following a declaration of war by the Congress." 50U.S.C. § 1811 (emphasis added). So even if we accept the argument that the use-of-force resolution places us on a war footing, warrantless surveillance would have been legal for only 15 days after the resolution was passed on
September 18, 2001.Point #5: The need for quick action does not justify an end-run around the
courtsThe FISA law takes account of the need for emergency surveillance, and the need for quick action cannot be used as a rationale for going outside the
law. FISA allows wiretapping without a court order in an emergency; thecourt must simply be notified within 72 hours. The government is aware of this emergency power and has used it repeatedly. In addition, the Foreign Intelligence court is physically located in the Justice Department building, and the FISA law requires that at least two of the FISA judges reside in the Washington, DC area, for precisely the reason that rapid action is sometimes
needed. If President Bush still for some reason finds these provisions to be inadequate, he must take his case to Congress and ask for the law to be changed, not simply ignore it. The president is bound by the rule of law President Bush’s claim that he has “inherent authority” as Commander-in-Chief to use our spy agencies to eavesdrop on Americans is astonishing, and such spying is clearly illegal. It must be haltedimmediately, and its origins must be thoroughly investigated by Congress and
by a special counsel. (See letter from the ACLU to Attorney General Gonzales calling for a special counsel <http://www.aclu.org/safefree/general/23184leg20051221.html> ). Given the extensive (indeed, excessive) surveillance powers that thegovernment already possesses, the Administration’s blatantly illegal use of
warrantless surveillance raises an important question: why? One possibility, raised by the New York Times in a Dec. 24, 2005 story (“Spy Agency Minded Vast Data Trove, Officials Report<http://www.nytimes.com/2005/12/24/politics/24spy.html> ”), is that the NSA is relying on assistance from several unnamed telecommunications companies to “trace and analyze large volumes of communications” and is “much larger
than the White House has acknowledged.” This, as security expert Bruce Schneier has noted, suggests the Bush Administration has developed a “a whole new surveillance paradigm” –exploiting the NSA’s well known capabilities to spy on individuals not one
at a time, as FISA permits, but to run communications en masse throughcomputers in the search for suspicious individuals or patterns. This “new
paradigm” may well be connected to the NSA program sometimes known as “Echelon,” which carries out just that kind of mass collection of communications (see www.nsawatch.org <http://www.nsawatch.org/> ). This“wholesale” surveillance, as Schneier calls it, would constitute an illegal invasion of Americans’ privacy on a scale that has never before been seen.
(See Schneier, “NSA and Bush’s Illegal Eavesdropping <http://www.salon.com/opinion/feature/2005/12/20/surveillance/> ,” Salon.com)According to the Times, several telecommunications companies provided the NSA with direct access to streams of communications over their networks. In
other words, the NSA appears to have direct access to a large volume ofAmericans’ communications – with not simply the assent, but the cooperation
of the companies handling those communications.We do not know from the report which companies are involved or precisely how
or what the NSA can access. But this revelation raises questions aboutboth the legal authority of the NSA to request and receive this data, and whether these companies may have violated either the Federal laws protecting
these communications or their own stated privacy polices (which may, forexample, provide that they will only turn over their customers’ data with
their consent or in response to a proper order).Regardless of the scale of this spying, we are facing a historic moment: the President of the United states has claimed a sweeping wartime power to brush
aside the clear limits on his power set by our Constitution and laws – a chilling assertion of presidential power that has not been seen since Richard Nixon. ------------------------------------- You are subscribed as lists-ip () insecure org To manage your subscription, go to http://v2.listbox.com/member/?listname=ip Archives at: http://www.interesting-people.org/archives/interesting-people/
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- ACLU ON NSA Spying on Americans David Farber (Dec 29)