more on well said Summarized -- Protect your ears: limit iPod use - Boston.com

[David Farber <dave () farber net>]

Begin forwarded message:

From: Peter Homans <peter () parkmanlp com>
Date: December 30, 2005 3:40:47 PM EST
To: dave () farber net, bsteinhardt () aclu org
Subject: RE: [IP] Summarized -- Protect your ears: limit iPod use -  
Boston.com

I forwarded the Steinhardt piece on IP, regarding the NSA, to a  
number of my associates, with the following as a "foreword", because  
so many people often dismiss what the ACLU says because of a  
"supposed" liberal bias, as opposed to a "civil liberties" bias-and  
my father was a proud and active member of the ACLU until he died.
________________________________________________________________________ 
________________________________________________________________________ 
___________________________

This is BY FAR the most cogent , (and you may well disagree with his  
arguments emotionally OR logically, but  it IS very well-reasoned and  
supported by numerous citations of law and the constitution) that I  
have read regarding this whole  NSA  surveillance mish-mash.

And some may say, "well, that’s the ACLU" as if that’s a bad word-but  
my father, Bill Homans, was a criminal lawyer in Boston for 40 years,  
pretty universally acknowledged as the best criminal lawyer in Boston  
during that time;  but my parents were divorced when I was two and I  
didn't see him more than once a year (and often not that), so I think  
I can be fairly dispassionate about his activities as a lawyer  
defending Americans' civil liberties..

 At the age of 19, having already graduated from Harvard, when we  
were not in WWII and it was a crime for American citizens to  
participate in the hostilities, punishable by a $25,000 fine and 5  
years in jail , he (unlike draft "resisters" of a later age ) , left  
America for Canada and joined the British Navy because of his outrage  
over Nazi atrocities (destruction of Czechs' civil liberties)  he  
witnessed in Czechoslovakia in the summer of 1938;  he then served on  
a British mine sweeper in the North Sea until 1941, when we finally  
entered the war, when he joined the American Navy;
and then, 3 days after 9/11, he and the other 16 Americans (the only  
Americans), who did what he did and became The Royal British Navy  
Voluntary Reserve, were honored at a ceremony in England on the  
Queen's behalf, Winston Churchill III presiding.


 he worked in the  South (Selma and elsewhere) during the '60's to  
make sure laws weren't broken to suppress legal protests ;  worked in  
Vietnam in '60's and 70's assuring that "grunts" received fair and  
highly qualified representation, pro bono, against "justified AND  
unjustified" military courts martial, was twice considered for a  
position the MA Supreme Judicial Court (rejected solely by the "runt"  
governor Dukakis, who arrived in the MA State Senate in the same  
class as my father in the early '60's ) , because of his financial  
"incompetence."  And he was about the worst manager of his own  
finances I have ever seen -he died basically dead broke, for all of  
his legal achievements;

during the 60's and 70's hundreds (maybe even thousands) of black  
teenagers in Boston had his telephone number written in pen on their  
hands, in case they got arrested-for real OR unjustified charges, and  
rarely withheld counsel solely for the inability of the client to pay  
any or all of his fees-much to his financial detriment, but to his  
clients' benefit.


and personally mentored innumerable young lawyers, including current  
SJC justices, defense lawyers, F. Lee Bailey, and others.  He did all  
of his Openings and Closings totally from memory.

This is all by way of saying that::  he was also a very active and  
proud member of the ACLU, and was no left-wing looney, or easily  
swayed by emotional rather than rational arguments.  So I have ZERO  
problem with the ACLU, in principle, even though I have certainly  
disagreed over the years with some of the positions they have taken.   
I  simply think the "legal" points made in this article (which is not  
a polemic, but an analysis), regarding Presidential powers, are hard  
to dispute-but I would welcome any reasonable disputations .

The full text of the ACLU's opinion is three or four paragraphs down,  
after some other links and just aftre Steinhardt's signature..



-----Original Message-----
From: David Farber [mailto:dave () farber net]
Sent: Thursday, December 29, 2005 11:25 PM
To: ip () v2 listbox com
Subject: [IP] ACLU ON NSA Spying on Americans



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 in  
today'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 of Nixon, 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.html

Since the Administration has sought to cast its unprecedented and  
lawless spying on American's as "legal", I have included the text of  
our piece below. 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.html


What if it emerged that the President of the United States was  
flagrantly violating the Constitution and a law passed by the  
Congress to protect Americans 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. The program eventually came to include some  
purely internal controls – but no requirement that warrants be  
obtained from the Foreign Intelligence Surveillance 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  
Bush admitted 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  
the nation 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 the extensive 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  
democratically debated 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 “fully
consistent 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  
establishes well-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.-[and supporters of the President's assertions forget that  
what might be good for protection of our national security can also  
be misused in the ways just described(no threat posed by the  
"surveilled" at al) once the precedent has been established-and our  
entire legal system does depend on the importance of precedent-ph]


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 Constitution
  Fourth 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  
this core privacy protection does cover government eavesdropping.  As  
a result, all electronic surveillance by the government in the United  
States is illegal, 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 he  
intentionally—  (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 granted  
permission 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 on  
electronic 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 Communications
Privacy 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 laws  
Title 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 chief judge 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.-[and also required,, after she became concerned  
with the President's use of  FISA, that some representative of the  
govt seeking authority swear, under oath, that the source of the  
material being used to support a warrant has been legally obtain  
itself.-ph]

Point #4: Congress’s post-9/11 use-of-force resolution does not  
legitimize the Bush-NSA spying

Congress 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 or seize control of Citibank in  
order to pay for operations against terrorists.[to me, this is the  
crux of the argument against the President's assertion of virtually  
unlimited in the service of national security-ph]


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 the strike 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 the recommending 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." 50 U.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 courts

The 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; the court 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 halted immediately, 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 the  
government 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 through computers in the search for suspicious individuals or  
patterns. [the President and his representatives have asserted that  
this surveillance has only encompassed members of Al Qaeda,  
associates of members of Al Qaeda, and organizations associated with  
Al Qaeda-this "vacumm approach" is clearly much more than they argued  
in their defense, and is, IMHO, illegal under CURRENT law-ph]

 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 of Americans’ 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 about both 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, for example, provide that they  
will only turn over their customers’ data with their consent or in  
response to a proper order). [so, even if you grant the President  
this kind of mass surveillance authority (NOT), what right, and under  
what law do these private companies have to give up this kind of  
quite "private information" to the government-ph]

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.








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Peter Homans
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