NSA Spying on Americans

Barry Steinhardt bsteinhardt at aclu.org
Thu Dec 29 08:15:03 PST 2005


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.
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.

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.
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.  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).

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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