Det danske Fredsakademi
Kronologi over fredssagen og international politik 7. september 2006 / Timeline September 7, 2006
Version 3.56. September 2006, 8. September 2006
09/07/2006
NSA Spying on Americans Is Illegal
Source:
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 ins ide 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 balan ces on
executive power, the notion that the president is subject to t he
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, embarass, 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 ar ticles 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 t o
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 Commnunications
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.
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 w arrant 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. 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.
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 vet oing of laws he thinks bad. And the Constitution is neither
silent no r 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."
The Supreme Court also rejected similar assertions of inherent
executive power by Richard Nixon.
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 s py 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
http://www.aclu.org/safefree/general/23184leg20051221.html
to Attorney General Gonzales calling for a special counsel).
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 Mined 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 compan ies 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. 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). 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/.
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).
Regardless of the s cale 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.
"We hold these truths to be self-evident, that all men are created
equal, that they are endowed by their Creator with certain
unalienable Rights, that among these are Life, Liberty and the
pursuit of Happiness.
- The Declaration of Independence - July 4th, 1776
"In a world of universal deceit, telling the truth is a
revolutionary act."
- George Orwell
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