Re: FISA Court Rules [2007] Wiretapping Program Legal (NOT the domestic one...)

[David Farber <dave () farber net>]

Begin forwarded message:

From: "Ethan Ackerman" <eackerma () u washington edu>
Date: January 16, 2009 10:32:25 AM EST
To: dave () farber net
Subject: Re: [IP] Re: FISA Court Rules [2007] Wiretapping Program  
Legal (NOT the domestic one...)
Reply-To: eackerma () u washington edu

Greetings Dave,

Quite a few legal commentators have criticised the author's
conclusions in the NYT article you forwarded, pointing out that the
case only addresses the legality of the international part of the 2007
Protect America Act, and not any wiretapping prior to that.


The Associated Press is even going so far as to run a distinguishing
sentence in its coverage of the ruling, noting that "The decision does
not address the legality of an earlier warrantless surveillance
program that the Bush administration secretly put in place without
legislation from Congress, and which The New York Times exposed in
2005."
 ( http://tinyurl.com/72wsfk )


So headlines aside, this court opinion (which can be accessed at
http://www.fas.org/irp/agency/doj/fisa/fiscr082208.pdf ) at most
confirms that Congress can authorize warrantless wiretapping abroad,
and importantly does NOT address whether the US govt. can wiretap
without a warrant and in violation of statute here in the US.


Salon.com's Glenn Greenwald has an article with a good roundup of
commentators.  http://www.salon.com/opinion/greenwald/2009/01/15/fisa/index.html





On Fri, Jan 16, 2009 at 7:49 AM, David Farber <dave () farber net> wrote:
> Begin forwarded message:
>
> From: "David P. Reed" <dpreed () reed com>
> Date: January 16, 2009 12:00:57 AM EST
> To: dave () farber net
> Cc: ip <ip () v2 listbox com>
> Subject: Re: [IP] FISA Court Rules Wiretapping Program Legal
>
> This is puzzling, but perhaps only to those of us who know that  
> there is not
> just *one* NSA "wiretapping program" that has been controversial  
> from a
> Constitutional point of view during the last 8-10 years.  Bamford's  
> "The
> Shadow Factory" discusses several, for example, and there are three  
> or four
> others rumored.
>
> In specific, what is puzzling is the claim that an appeal of a  
> specific FISA
> ruling can fully cover the wide variety of broad-spectrum collection,
> archiving, analysis, and distribution systems that are now feasible,  
> but
> cannot be narrowly targeted as to personal, temporal or geographic  
> scope.
> Appeals courts do not "make law".
>
> David Farber wrote:
> > Begin forwarded message:
> >
> > From: Richard Forno <rforno () infowarrior org>
> > Date: January 15, 2009 8:46:34 AM EST
> > To: Undisclosed-recipients: <>;
> > Cc: Dave Farber <dave () farber net>
> > Subject: FISA Court Rules Wiretapping Program Legal
> >
> > January 16, 2009
> > Intelligence Court Rules Wiretapping Program Legal
> > By ERIC LICHTBLAU
> >
> > http://www.nytimes.com/2009/01/16/washington/16fisa.html?_r=1&hp=&pagewanted=print
> >
> > WASHINGTON — A federal intelligence court, in a rare public  
> > opinion, is
> > expected to issue a major ruling validating the power of the  
> > president and
> > Congress to wiretap international phone calls and intercept e-mail  
> > messages
> > without a court order, even when Americans' private communications  
> > may be
> > involved.
> >
> > The court decision is expected to be disclosed as early as Thursday  
> > in an
> > unclassified, redacted form. It was made in December by the Foreign
> > Intelligence Surveillance Court of Review, which has issued only  
> > two prior
> > rulings in its 30-year history.
> >
> > The decision marks the first time since the disclosure of the  
> > National
> > Security Agency's warrantless eavesdropping program three years ago  
> > that an
> > appellate court has addressed the constitutionality of the federal
> > government's wiretapping powers. In validating the government's wide
> > authority to collect foreign intelligence, it may offer legal  
> > credence to
> > the Bush administration's repeated assertions that the president has
> > constitutional authority to act without specific court approval in  
> > ordering
> > national security eavesdropping.
> >
> > The appeals court is expected to uphold a secret ruling issued last  
> > year
> > by the intelligence court that it oversees, known as the Foreign
> > Intelligence Surveillance, or FISA, court. In that initial opinion,  
> > the
> > secret court found that Congress had acted within its authority in  
> > August of
> > 2007 when it passed a hotly debated law known as the Protect  
> > America Act,
> > which gave the executive branch broad power to eavesdrop on  
> > international
> > communications, according to someone familiar with the ruling.
> >
> > snip
> >
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