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Bush Eavesdropping - Is it Legal?

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In December, The New York Times revealed that the Bush Administration, has been eavesdropping on our phone calls, by means of National Security Agency computer systems, without a court order. Although the exact nature of the surveillance is highly classified, the White House has gone on a massive "fishing trip;" one that invades the privacy of thousands of ordinary Americans. This is the second of three articles about Administration eavesdropping - whether or not it is legal.

My previous article described the probable nature of the surveillance. NSA computers monitor the international digital communications stream and - in my hypothetical example - flag two events: I call a suspicious phone number in Pakistan and make an equally suspicious payment to a Pakistani organization. The NSA computer algorithm raises my "threat score" and the software decides to monitor my digital traffic in order to ascertain whether or not I am an Al Qaeda sympathizer. As a result, NSA computers begin to scan all my phone calls, emails, and financial transactions.

No one is suggesting that it is illegal for NSA to watch for suspicious phone calls into or outside the US. The real controversy begins when the NSA computer software makes the algorithmic decision to go "fishing" in my personal data. The key legal question is whether or not the Bush Administration has the power to do this domestically without getting a warrant. Whether they can ignore the Federal Intelligence Surveillance Act (FISA), which specifically addresses domestic surveillance and requires the Feds to get a warrant to do it.

Bear in mind that the scope of this fishing expedition is enormous. Because the NSA surveillance is highly automated, there are hundreds of thousands of Americans being monitored - an average of 500 additional each day since 9/11. In comparison, in 2004 The FISA court granted 1758 warrants all year.

I am not a lawyer. For the discussion that follows, I've relied upon three sources: The first is an article that recently appeared in The New York Review, "On NSA Spying: A Letter to Congress" written by legal scholars. The second sources are my Berkeley lawyer friends. The third is the comments of Republican Senator Arlen Specter chair of the Senate Judiciary committee.

The fourth amendment in the Bill of Rights ensures, "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." Because of this, according to the NYR article, "The Supreme Court has never upheld warrantless wiretapping within the United States."

The argument about the legality of the Administration's actions comes down to two things: Whether the President has the authority to eavesdrop under the "Authorization for Use of Military Force against al-Qaeda," and the relationship of this authority to that discussed in the Foreign Intelligence Surveillance Act passed in 1978.

The President claims that Congress gave him this authority. Yet, there are significant legal questions about the scope of powers granted President Bush in the Congressional Authorization to use Military Force (AUMF) against al-Qaeda passed on September 18.2001. "The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks." This law did not specifically mention eavesdropping. Nonetheless, the White House maintains, "The authorization to use force... constitutes that other authorization... to engage in this kind of signals intelligence."

The NYR article argues, "Congress did not implicitly authorize the NSA domestic spying program in the AUMF." In a December 23rd Op-Ed in the Washington Post former Senate Majority Leader, Tom Daschle, wrote that preceding the passage of the AUMF, "The subject of warrantless wiretaps of American citizens never came up. I did not and never would have supported giving authority to the president for such wiretaps." Republican Arlen Specter remarked that "no fair reading" of the AUMF justified electronic surveillance.

Most lawyers familiar with Federal laws, and the authors of the NYR article, argue that the applicable law is not the AUMF, but rather the Federal Intelligence Surveillance Act (FISA), passed in 1978. "FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the 'vitally important government purpose' of obtaining valuable intelligence in order to safeguard national security." The statute authorizes domestic electronic surveillance only with court approval. The NYR authors point out that this is the specific federal law that covers the NSA eavesdropping and "Specific and 'carefully drawn' statutes prevail over general statutes where there is a conflict." In other words, FISA prevails over the vague AUMF.

The NYR authors further note, "Attorney General Alberto Gonzales has admitted that the administration did not seek to amend FISA to authorize the NSA spying program because it was advised that Congress would reject such an amendment. The administration cannot argue on the one hand that Congress authorized the NSA program in the AUMF, and at the same time that it did not ask Congress for such authorization because it feared Congress would say no."

The NYR scholars conclude, "[the White House] fails to offer a plausible legal defense of the NSA domestic spying program. If the administration felt that FISA was insufficient, the proper course was to seek legislative amendment... One of the crucial features of a constitutional democracy is that it is always open to the President--or anyone else--to seek to change the law. But it is also beyond dispute that, in such a democracy, the President cannot simply violate criminal laws behind closed doors because he deems them obsolete or impracticable." They conclude that the NSA spying program is illegal. Senator Specter agrees.

The White House is breaking the law. Next time, why does this matter?