Is the Pentagon spying on Americans?

[TooStonedToType]

I wonder what this judge knows to make him resign?

-----------

There is a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can't take part; you can't even passively take part, and you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you've got to make it stop. And you've got to indicate to the people who run it, to the people who own it, that unless you're free, the machine will be prevented from working at all!

-Mario Savio
-------------

Report: Spy court judge quits in protest
Bush's secret surveillance program said to be a concern
Wednesday, December 21, 2005; Posted: 4:34 p.m. EST (21:34 GMT)

President Bush defends the surveillance program and says it will continue.

WASHINGTON (AP) -- A federal judge has resigned from a special court set up to oversee government surveillance to protest President Bush's secret authorization of a domestic spying program on people with suspected terrorist ties, The Washington Post reported.

The action by U.S. District Judge James Robertson stemmed from deep concern that the surveillance program that Bush authorized was legally questionable and may have tainted the work of the court that Robertson resigned from, the newspaper said in Wednesday's editions.

The Post quoted two associates of the judge.

Robertson was one of 11 members of the secret Foreign Intelligence Surveillance Court, which oversees government applications for secret surveillance or searches of foreigners and U.S. citizens suspected of terrorism or espionage.

Quoting colleagues of Robertson, the Post said the judge had indicated he was concerned that information gained from the warrantless surveillance under Bush's program subsequently could have been used to obtain warrants under the FISA program.

The Post said Robertson, without providing an explanation, stepped down from the FISA court in a letter late Monday to Chief Justice John Roberts. He did not resign his parallel position as a federal district judge.

Supreme Court spokeswoman Kathy Arberg said early Wednesday she had no information to offer on the matter.

Robertson was appointed a federal judge by President Clinton in 1994. Chief Justice William Rehnquist later appointed Robertson to the FISA court as well.

Robertson has been critical of the Bush administration's treatment of detainees at the U.S. naval prison at Guantanamo Bay, Cuba, most memorably in a decision that sidetracked the president's system of military tribunals to put some detainees on trial.

Robertson's resignation was reported hours after Vice President Dick Cheney strongly defended the surveillance program and called for "strong and robust" presidential powers.

Cheney -- a former member of congress, defense secretary and White House chief of staff under President Ford -- said executive authority has been eroding since the Watergate and Vietnam eras.

"I believe in a strong, robust executive authority and I think that the world we live in demands it," Cheney said.

"I would argue that the actions that we've taken there are totally appropriate and consistent with the constitutional authority of the president. ... You know, it's not an accident that we haven't been hit in four years," the vice president said, speaking with reporters Tuesday on Air Force Two en route from Pakistan to Oman.

Republicans said Congress must investigate whether Bush was within the law to allow the super-secret National Security Agency to eavesdrop -- without warrants -- on international calls and e-mails of Americans and others inside the United States with suspected ties to al Qaeda.

"I believe the Congress -- as a coequal branch of government _ must immediately and expeditiously review the use of this practice," said Sen. Olympia Snowe, a Republican from Maine.

Snowe joined three other members of the Senate Intelligence Committee, including Nebraska Republican Chuck Hagel, in calling for a joint inquiry by the Senate judiciary and intelligence committees.

Bush and his top advisers have suggested senior congressional leaders vetted the program in more than a dozen highly classified briefings. Several Democrats agreed said they were told of the program, but did not know the full details and had concerns.

West Virginia Sen. Jay Rockefeller, the Senate Intelligence Committee's top Democrat, on Monday released a letter he wrote to Cheney in July 2003 that, given the program's secrecy, he was "unable to fully evaluate, much less endorse these activities."

Senate Intelligence Committee Chairman Pat Roberts, a Kansas Republican, pushed back on Tuesday. Roberts said that if Rockefeller had concerns about the program, he could have used the tools he has to wield influence, such as requesting committee or legislative action.

"Feigning helplessness is not one of those tools," Roberts said.

[Avery L. Breath]

US intelligence service bugged website visitors despite ban

· Agency apologises for use of 'cookie' tracking files
· Exposure adds to pressure over White House powers

Suzanne Goldenberg in Washington
Friday December 30, 2005
The Guardian


The intelligence service at the centre of the row over eavesdropping tracked visitors to its website, despite US government regulations. Monitoring files, known as "cookies", were discovered by a privacy activist at a time when the White House is on the defensive about its use of the National Security Agency to monitor the communications of US citizens.

Although the cookies were dismantled this week and the NSA issued an apology on Wednesday, the episode will add to pressure on the White House to engage in a national debate about its use of the agency, and its interpretation of the constitutional limits on George Bush's presidential powers.

The chairman of the Senate judiciary committee, Arlen Specter, confirmed this week that he intends to conduct hearings into President Bush's secret order in 2002 authorising the NSA to conduct email and telephone surveillance of US citizens without a court warrant. The hearings are expected to get under way next month.
"There likely will be a national debate about whether the president really has the kind of power he's been using," Mr Specter, a Pennsylvania Republican, told reporters.

In a posting on his googlewatch.org website a privacy activist, Daniel Brandt, says he discovered that the NSA was using tracking devices when he logged on to the agency website on Christmas Day. He found the site was using two persistent cookies that would not expire until 2035, well beyond the life of most computers.

While the use of cookies is seen as a convenience at commercial websites, allowing a visitor access without laboriously retyping passwords, their utility for government websites - which do not typically have repeat visits - is uncertain.

US government agencies have been barred from using persistent cookies since 2000 because of privacy concerns. The regulations were imposed after disclosures that the White House drug policy office had been using cookies to monitor visitors to its anti-drug advertisements.

However, Mr Brandt and others have noted repeated violations of the ban. Three years ago, the CIA website was obliged to remove its cookies after Mr Brandt noticed that the devices were still in use. Following his latest discovery, Mr Brandt sent faxes to the NSA public affairs office and the contractor running the agency's website. The agency issued an apology on Wednesday.

Although privacy advocates yesterday said the episode was of relatively limited concern given the scope of the NSA's surveillance capabilities, the tracking was viewed as an another example of unwarranted intrusion by the intelligence service. "This illustrates the principle that unchecked authority goes astray. In this case, it's a relatively trivial infraction," said Steven Aftergood, of the Federation of American Scientists. "But to me the point is that we need more aggressive and penetrating oversight than we have."

Since the New York Times disclosed the domestic spying operation, the White House has worked strenuously to damp down public outrage, arguing that the surveillance was limited to those with known links to al-Qaida. However, that posture becomes increasingly difficult to maintain as new evidence surfaces on the range of the NSA activities.

In a follow-up story, the New York Times reported last week that the NSA had monitored far larger volumes of telephone and internet communications than initially acknowledged by the White House. Some of the information was obtained after US telecommunications companies allowed backdoor access to streams of telephone and internet traffic.

What is a cookie?

Cookies are packets of information kept on your computer by websites. Commercial sites use them for identification, authentication and tracking.

What does a cookie do?

Most are innocuous. They let websites remember your preferences without you needing to log in every time you visit. But cookies can also be used to keep track of the different websites you have visited.

How does it get on your computer?

Most useful cookies will be installed when you first log in to a service. However, the type used by the NSA are invisible to the user and are hidden on a web page and installed on any machine that visits it.

[Avery L. Breath]

The idea of spying on terrorists...... or rather the current idea which is probably more like spying on people known to socialize with people who are loosly associated with a fundraiser of a terrorist organization, is rather perplexing.  I mean, what is considered a terrorist organization?  PETA?

How does that work I wonder?

Say some guy goes out and torches a animal research building or a subburb under construction in critical habitat and is known to heavily assosiate with people in the NRA or Burning or the society for anarchist left handed grandmothers, or a radical plant forum......... are all of those organizations suddenly considered terrorist organizations by association?

[TooStonedToType]

http://abcnews.go.com/WNT/Investigation ... id=1491889

Jan 10, 2006 â€" Russell Tice, a longtime insider at the National Security Agency, is now a whistleblower the agency would like to keep quiet.

For 20 years, Tice worked in the shadows as he helped the United States spy on other people's conversations around the world.  "I specialized in what's called special access programs," Tice said of his job. "We called them 'black world' programs and operations."

But now, Tice tells ABC News that some of those secret "black world" operations run by the NSA were operated in ways that he believes violated the law. He is prepared to tell Congress all he knows about the alleged wrongdoing in these programs run by the Defense Department and the NSA in the post-9/11 efforts to go after terrorists.

"The mentality was we need to get these guys, and we're going to do whatever it takes to get them," he said.

Tracking Calls
Tice says the technology exists to track and sort through every domestic and international phone call as they are switched through centers, such as one in New York, and to search for key words or phrases that a terrorist might use.

"If you picked the word 'jihad' out of a conversation," Tice said, "the technology exists that you focus in on that conversation, and you pull it out of the system for processing."

According to Tice, intelligence analysts use the information to develop graphs that resemble spiderwebs linking one suspect's phone number to hundreds or even thousands more.

Tice Admits Being a Source for The New York Times
President Bush has admitted that he gave orders that allowed the NSA to eavesdrop on a small number of Americans without the usual requisite warrants.

But Tice disagrees. He says the number of Americans subject to eavesdropping by the NSA could be in the millions if the full range of secret NSA programs is used.

"That would mean for most Americans that if they conducted, or you know, placed an overseas communication, more than likely they were sucked into that vacuum," Tice said.

The same day The New York Times broke the story of the NSA eavesdropping without warrants, Tice surfaced as a whistleblower in the agency. He told ABC News that he was a source for the Times' reporters. But Tice maintains that his conscience is clear.

"As far as I'm concerned, as long as I don't say anything that's classified, I'm not worried," he said. "We need to clean up the intelligence community. We've had abuses, and they need to be addressed."

The NSA revoked Tice's security clearance in May of last year based on what it called psychological concerns and later dismissed him. Tice calls that bunk and says that's the way the NSA deals with troublemakers and whistleblowers. Today the NSA said it had "no information to provide."

[Avery L. Breath]

NSA Used City Police to Track Peace Activists
    By Douglas Birch
    The Baltimore Sun

    Friday 13 January 2006

Activists monitored on way to Fort Meade war protest, agency memos show.
    The National Security Agency used law enforcement agencies, including the Baltimore Police Department, to track members of a city anti-war group as they prepared for protests outside the sprawling Fort Meade facility, internal NSA documents show.

    The target of the clandestine surveillance was the Baltimore Pledge of Resistance, a group loosely affiliated with the local chapter of the American Friends Service Committee, whose members include many veteran city peace activists with a history of nonviolent civil disobedience.

    Under various names, the activists have staged protests at the NSA campus off the Baltimore-Washington Parkway every year since 1996.

    Since the Sept. 11 terrorist attacks, members of the group say, their protests have come under increasing scrutiny by federal and local law enforcement officials working on behalf of the NSA.

    An internal NSA e-mail, posted on two Internet sites this week, shows how operatives with the "Baltimore Intel Unit" provided a minute-by-minute account of Pledge of Resistances' preparations for a July 3, 2004, protest at Fort Meade. An attorney for the demonstrators said he obtained the document through the discovery process from NSA.

    "****UPDATE: 11:55 HRS. S/A V - - - - ADVISED THE PROTESTORS LEFT 4600 YORK ROAD EN ROUTE TO THE NSA CAMPUS ... S/A V - - - REPORTED FIVE OR SIX PEOPLE IN A BLUE VAN WITH BLACK BALLOONS, ANTI-WAR SIGNS AND A POSSIBLE HELIUM TANK," reported an internal NSA e-mail.

    Later, those shadowing the peace group reported on their arrival at the NSA's Fort Meade headquarters.

    "****UPDATE: 1300 HRS. THE SOC WAS ADVISED THE PROTESTORS WERE PROCEEDING TO THE AIRPLANE MEMORIAL WITH THREE HELIUM BALLOONS ATTACHED TO A BANNER THAT STATED "THOSE WHO EXCHANGE FREEDOM FOR SECURITY DESERVE IT, NEITHER WILL ULTIMATELY LOSE BOTH," the NSA's somewhat garbled account of the event reported.

    Ellen E. Barfield, a veteran peace activist from Hampden, was one of three Pledge members detained and cited that afternoon, charged with creating a "disturbance." The charges were later dropped.

    Barfield called the effort law enforcement agencies put into monitoring this act of civil disobedience "totally absurd."

    "We have a history of nonviolence," she said. "We are absolutely no threat to anyone, and they know it. And they're wasting tons of money and tons of time doing this."

    An agency spokesman said protests are routinely monitored by the NSA Police, who are responsible only for the installation's security, not the code breakers and eavesdroppers who monitor international electronic communications.

    The only reference to technical information-gathering in the three public NSA documents - two e-mails and an internal "Action Plan" - is a reference in to an NSA employee's effort to check on the protesters' plans by browsing the Web.

    "Security at NSA serves to protect the agency and its employees," NSA spokesman Don Weber said in a statement. "Like any security force, they maintain documentation to include activity logs and action plans used in response to potential activities impacting the agency.

    "Furthermore, they partner with state, local and federal law enforcement agencies to assess these activities and the potential impact on the agency and its personnel," Weber continued. "All these activities are conducted in a lawful manner. The allegations that NSA is spying on local peace groups is simply not true."

    James Bamford, a lawyer and journalist who has written two acclaimed books about the NSA, said the agency has a right to protect itself from external threats. "But it would be an entirely separate thing if the NSA tried to monitor communications" from the Baltimore anti-war group, using the agency's sophisticated technology.

    There is no evidence this happened. But the documents have surfaced at a critical time for the NSA.

    The New York Times reported in December that after Sept. 11, the NSA began monitoring the electronic communications of Americans suspected of contacts with terrorists, without first obtaining court orders. President Bush authorized the program in 2002 and has defended it as necessary to protect the nation.

    Some legal analysts and administration critics say the agency's actions violate the 1978 Foreign Intelligence Surveillance Act.

    In some ways, Independence Day weekend protests by members of the Baltimore Pledge of Resistance have become an annual ritual.

    Every year, protesters demand to talk with NSA officials. Some try to slip in one of the entrances and get arrested. Even before Sept. 11, Bamford said, the NSA overreacted, "considering the scale of the protest."

    An NSA e-mail contained in court files shows that before the Pledge of Resistance's Oct. 4, 2003, protest, which coincided with the agency's annual "family day" picnic, NSA relied on a detective working for the Baltimore Police Department's Criminal Intelligence Unit to monitor the demonstrators' movements.

    That unit handles some of the city's most politically sensitive investigations, including threats to public officials.

    The city detective, the 2003 e-mail said, "advised that they will have someone working this weekend who will scope out their departure from the American Friends Service Committee 4806 York Rd. Govans. The Baltimore City PD counterpart will give [name of an NSA official blacked out] a heads up as to the numbers departing from the Govans location."

    The NSA e-mail regarding the July 2004 protest does not make clear who conducted that day's surveillance on the agency's behalf. While it refers to the "Baltimore Intel Unit," the chief of the city's Criminal Intelligence Unit, Major David Engel, said he had no record that any of his officers participated.

    "We have absolutely nothing in our files related to it," he said, referring to the protest in 2004.

    Max J. Obuszewski, a veteran Baltimore anti-war activist who works for the American Friends Service Committee, said protesters have been trying to publicize the two documents since they were released in Federal District Court in August 2004.

    The NSA July 2004 e-mail and the NSA's "Action Plan" for the October 2003 protest were finally publicized this week by Kevin B. Zeese, a candidate for the US Senate from Maryland, on the Web sites "rawstory.com" and "democracyrising.us."

    The NSA disclosed them as part of the discovery process in the prosecution of two Baltimore Pledge of Resistance members, Cynthia H. Farquhar and Marilyn Carlisle. Both were detained during the October 2003 protest and convicted of failing to obey a police officer's orders. They were fined $250, according to federal court records.

[TooStonedToType]

"A BANNER THAT STATED "THOSE WHO EXCHANGE FREEDOM FOR SECURITY DESERVE IT, NEITHER WILL ULTIMATELY LOSE BOTH,"  

I doubt the banner said that.  Has the NSA never heard the message to get it that wrong?  Or did their their dirty consciousness prevent them from writing down what the sign really said?

Gezz next they will be spying on The Quakers and Jehovah's Witnesses . . . oh wait, I guess that already happened.

[Avery L. Breath]

NSA Spying Evolved Pre-9/11
    By Jason Leopold
    t r u t h o u t | Investigative Report

    Tuesday 17 January 2006

    In the months before 9/11, thousands of American citizens were inadvertently swept up in wiretaps, had their emails monitored, and were being watched as they surfed the Internet by spies at the super-secret National Security Agency, former NSA and counterterrorism officials said.

    The NSA, with full knowledge of the White House, crossed the line from routine surveillance of foreigners and suspected terrorists into illegal activity by continuing to monitor the international telephone calls and emails of Americans without a court order. The NSA unintentionally intercepts Americans' phone calls and emails if the agency's computers zero in on a specific keyword used in the communication. But once the NSA figures out that they are listening in on an American, the eavesdropping is supposed to immediately end, and the identity of the individual is supposed to be deleted. While the agency did follow protocol, there were instances when the NSA was instructed to keep tabs on certain individuals that became of interest to some officials in the White House.

    What sets this type of operation apart from the unprecedented covert domestic spying activities the NSA had been conducting after 9/11 is a top secret executive order signed by President Bush in 2002 authorizing the NSA to target specific American citizens. Prior to 9/11, American citizens were the subject of non-specific surveillance by the NSA that was condoned and approved by President Bush, Vice President Dick Cheney, and Secretary of Defense Donald Rumsfeld, according to former NSA and counterterrorism officials.

    The sources, who requested anonymity because they were instructed not to talk about NSA activities but who hope they can testify before Congress about the domestic spying, said that in December 2000, the NSA completed a report for the incoming administration titled "Transition 2001," which explained, among other things, how the NSA would improve its intelligence gathering capabilities by hiring additional personnel.

    Moreover, in a warning to the incoming administration, the agency said that in its quest to compete on a technological level with terrorists who have access to state-of-the-art equipment, some American citizens would get caught up in the NSA's surveillance activities. However, in those instances, the identities of the Americans who made telephone calls overseas would be "minimized," one former NSA official said, in order to conceal the identity of the American citizen picked up on a wiretap.

    "What we're supposed to do is delete the name of the person," said the former NSA official, who worked as an encryption specialist.

    The former official said that even during the Clinton administration, the NSA would inadvertently obtain the identities of Americans citizens in its wiretaps as a result of certain keywords, like bomb or jihad, NSA computers are programmed to identify. When the NSA prepares its reports and transcripts of the conversations, the names of Americans are supposed to be immediately destroyed.

    By law, the NSA is prohibited from spying on a United States citizen, a US corporation or an immigrant who is in this country on permanent residence. With permission from a special court, the NSA can eavesdrop on diplomats and foreigners inside the US.

    "If, in the course of surveillance, NSA analysts learn that it involves a US citizen or company, they are dumping that information right then and there," an unnamed official told the Boston Globe in a story published October 27, 2001.

    But after Bush was sworn in as president, the way the NSA normally handled those issues started to change dramatically. Vice President Cheney, as Bob Woodward noted in his book Plan of Attack, was tapped by Bush in the summer of 2001 to be more of a presence at intelligence agencies, including the CIA and NSA.

    "Given Cheney's background on national security going back to the Ford years, his time on the House Intelligence Committee, and as secretary of defense, Bush said at the top of his list of things he wanted Cheney to do was intelligence," Woodward wrote in his book about the buildup to the Iraq war. "In the first months of the new administration, Cheney made the rounds of the intelligence agencies - the CIA, the National Security Agency, which intercepted communications, and the Pentagon's Defense Intelligence Agency. "

    It was then that the NSA started receiving numerous requests from Cheney and other officials in the state and defense departments to reveal the identities of the Americans blacked out or deleted from intelligence reports so administration officials could better understand the context of the intelligence.

    Separately, at this time, Cheney was working with intelligence agencies, including the NSA, to develop a large-scale emergency plan to deal with any biological, chemical or nuclear attack on US soil.

    Requesting that the NSA reveal the identity of Americans caught in wiretaps is legal as long as it serves the purpose of understanding the context of the intelligence information.

    But the sources said that on dozens of occasions Cheney would, upon learning the identity of the individual, instruct the NSA to continue monitoring specific Americans caught in the wiretaps if he thought more information would be revealed, which crossed the line into illegal territory.

    Cheney advised President Bush of what had turned up in the raw NSA reports, said one former White House official who worked on counterterrorism related issues.

    "What's really disturbing is that some of those people the vice president was curious about were people who worked at the White House or the State Department," one former counterterrorism official said. "There was a real feeling of paranoia that permeated from the vice president's office and I don't think it had anything to do with the threat of terrorism. I can't say what was contained in those taps that piqued his interest. I just don't know."

    An NSA spokesperson would not comment for this story. Because of the level of secrecy at the agency, it's impossible to ascertain for the record how far the agency has gone in its domestic surveillance.

    James Bamford, the author of the bestselling books The Puzzle Palace and Body of Secrets, which blew the door wide open by first revealing the NSA's covert activities, said he doesn't believe terrorism was a priority for the administration before 9/11 and he doesn't think the agency targeted specific Americans as it is doing now.

    "I looked into that theory," Bamford said in an interview. "And I was assured that domestic surveillance was a black area the NSA stayed away from before 9/11. The NSA was sort of a side agency before 9/11. At that point they were looking for a mission. Terrorism was not a big priority. (American) names may have been picked up but I was told they dropped them immediately after. That's the procedure."

    But Bamford said it's possible the NSA may have conducted the type of spying prior to 9/11 that the former NSA officials described. "It's hard to tell" if that happened, Bamford said. "It's a very secret agency."

    In the summer of 2001, the NSA spent millions of dollars on a publicity campaign to repair its public image by taking the unprecedented step of opening up its headquarters in Fort Meade, Maryland to reporters, to dispel the myth that the NSA was spying on Americans.

    In a July 10, 2001, segment on "Nightline," host Chris Bury reported that "privacy advocates in the United States and Europe are raising new questions about whether innocent civilians get caught up in the NSA's electronic web."

    Then-NSA Director Lt. Gen. Michael Hayden, who was interviewed by "Nightline," said it was absolutely untrue that the agency was monitoring Americans who are suspected of being agents of a foreign power without first seeking a special warrant from the Foreign Intelligence Surveillance Court.

    "We don't do anything willy-nilly," Hayden said. "We're a foreign intelligence agency. We try to collect information that is of value to American decision-makers, to protect American values, America - and American lives. To suggest that we're out there, on our own, renegade, pulling in random communications, is - is simply wrong. So everything we do is for a targeted foreign intelligence purpose. With regard to the - the question of industrial espionage, no. Period. Dot. We don't do that."

    But, when asked "How do we know that the fox isn't guarding the chicken coop?" Hayden responded by saying that Americans should trust the employees of the NSA.

    "They deserve your trust, but you don't have to trust them," Hayden said. "We aren't off the leash, so to speak, guarding ourselves. We have a body of oversight within the executive branch, in the Department of Defense, in the president's Foreign Intelligence Advisory Board, which is comprised of both government and nongovernmental officials. You've got both houses of Congress with - with very active - in some cases, aggressive - intelligence oversight committees with staff members who have an access badge to NSA just like mine."

    One former NSA official said in response to Hayden's 2001 interview, "What do you expect him to say? He's got to deny it. I agree. We weren't targeting specific people, which is what the President's executive order does. However, we did keep tabs on some Americans we caught if there was an interest" by the White House. "That's not legal. And I am very upset that I played a part in it."

    James Risen, the New York Times reporter credited with exposing the NSA's covert domestic surveillance activities that came as a result of a secret executive order President Bush issued in 2002, wrote in his just-published book, State of War, that the administration was very aggressive in its intelligence gathering activities before 9/11. However, Risen does not say that means the administration permitted the NSA to spy on Americans.

    "It is now clear that the White House went through the motions of the public debate over the (2001) Patriot Act, all the while knowing that the intelligence community was secretly conducting a far more aggressive domestic surveillance campaign," Risen wrote in State of War.



--------------------------------------------------------------------------------
    Jason Leopold spent two years covering California's electricity crisis as Los Angeles bureau chief of Dow Jones Newswires. Jason has spent the last year cultivating sources close to the CIA leak investigation, and is a regular contributer to t r u t h o u t.
  -------

[Avery L. Breath]

Democrats Hold Hearing on Illegal Spying
    By Congressman John Conyers Jr.
   

    Friday 20 January 2006

    There can be no doubt that today we are in a constitutional crisis that threatens the system of checks and balances that has preserved our fundamental freedoms for more than 200 years. There is no better illustration of that crisis than the fact that the president is openly violating our nation's laws by authorizing the NSA to engage in warrantless surveillance of US citizens.

    The Bush Administration offers two arguments to justify their actions. First, they assert, that warrantless searches were authorized by the Afghanistan use of force resolution. Second, they say, the Constitution permits and even mandates such actions. To this member and indeed to most of our nation's legal community, neither argument is remotely plausible or credible.

    As for the Administration's claim of statutory authority, a plain reading of the text of the resolution reveals that there is no reference whatsoever to domestic surveillance. Former Majority Leader Daschle told us that the resolution was narrowed from the Administration's initial request to avoid such construction, and the Attorney General went so far as to admit that they were told by Members of Congress that it would be "difficult if not impossible" to amend the law to authorize such a program. As Harvard Law Professor Larry Tribe wrote me, "to argue that one couldn't have gotten congressional authorization ... after arguing that ... one did get congressional authorization ... takes some nerve."

    In terms of inherent constitutional authority, this too flies in the face of both common sense and legal precedent. If the Supreme Court didn't let President Truman use this authority to take over the steel mills during the Korean War in 1952, and wouldn't let President Bush use the authority to indefinitely hold enemy combatants in 2005, it is quite obvious the constitution doesn't allow warrantless wiretapping of US citizens today. As Justice O'Connor wrote, "a state of war is not a blank check."

    Perhaps what is most troubling of all is that if we let this domestic spying program continue, if we let this president convince us that we are at war, so he can do what he wants, we will allow to stand the principle that the president alone can decide what laws apply to him. I submit that is not only inconsistent with the principles upon which our Republic was founded, it denigrates the very freedom we have been fighting for since the tragic events of September 11. That is why we are holding today's hearing.

[senorsalvia]

Maybe I'm pipedreaming  If ever there was a time to turn the tide..  Hello, Hello, Is there anybody in there?

[Avery L. Breath]

White House Rebuffed 2002 Effort to Relax FISA Standards
    By Steven Aftergood
    FAS

    Wednesday 25 January 2006

    The Bush Administration rejected a Congressional initiative in 2002 that would have lowered the legal threshold for conducting surveillance of non-US persons under the Foreign Intelligence Surveillance Act from "probable cause" that the target is a terrorist or agent of a foreign power to "reasonable suspicion."

    Administration officials said at the time that the legislative proposal was unnecessary and possibly unconstitutional.

    Yet in a speech this week on the NSA domestic surveillance program, Deputy Director of National Intelligence Gen. Michael V. Hayden indicated that the executive branch had unilaterally adopted a similar "reasonable suspicion" standard.

    Instead of FISA's more stringent "probable cause" requirement, the presidentially-directed NSA surveillance operation applied to international calls that "we have a reasonable basis to believe involve al Qaeda or one of its affiliates," Gen. Hayden said on January 23.

    The unexplained contradiction between the Administration's public rejection of the "reasonable suspicion" standard for FISA, and its secret adoption of that same standard was noted yesterday by attorney and blogger Glenn Greenwald.

    See "The Administration's New FISA Defense is Factually False," January 24:

    http://glenngreenwald.blogspot.com/

    The 2002 legislative proposed, S. 2659 introduced by Rep. Michael DeWine (R-OH), "raises both significant legal and practical issues [and] the Administration at this time is not prepared to support it," said James A. Baker of the Justice Department.

    Among other concerns, Mr. Baker said, "If we err in our analysis and courts were ultimately to find a 'reasonable suspicion' standard unconstitutional, we could potentially put at risk ongoing investigations and prosecutions."

    See Mr. Baker's prepared statement from the July 31, 2002 hearing of the Senate Intelligence Committee.

    The transcript and other prepared statements from that Senate Intelligence Committee hearing on "Proposals to Amend the Foreign Intelligence Surveillance Act" are available here:

    http://www.fas.org/irp/congress/2002_hr/index.html#fisa

[Avery L. Breath]

The March of the Straw Soldiers
    The New York Times | Editorial

    Thursday 02 February 2006

    President Bush is not giving up the battle over domestic spying. He's fighting it with an army of straw men and a fleet of red herrings.

    In his State of the Union address and in a follow-up speech in Nashville yesterday, Mr. Bush threw out a dizzying array of misleading analogies, propaganda slogans and false choices: Congress authorized the president to spy on Americans and knew all about it ... 9/11 could have been prevented by warrantless spying ... you can't fight terrorism and also obey the law ... and Democrats are not just soft on national defense, they actually don't want to beat Al Qaeda.

    "Let me put it to you in Texan," Mr. Bush drawled at the Grand Ole Opry House yesterday. "If Al Qaeda is calling into the United States, we want to know."

    Yes, and so does every American. But that has nothing to do with Mr. Bush's decision to toss out the Constitution and judicial process by authorizing the National Security Agency to eavesdrop without a warrant. Let's be clear: the president and his team had the ability to monitor calls by Qaeda operatives into and out of the United States before 9/11 and got even more authority to do it after the attacks. They never needed to resort to extralegal and probably unconstitutional methods.

    Mr. Bush said the warrantless spying was vetted by lawyers in the Justice Department, which is cold comfort. They also endorsed the abuse of prisoners and the indefinite detention of "unlawful enemy combatants" without charges or trials.

    The president also said the spying is reviewed by N.S.A. lawyers. That's nice, but the law was written specifically to bring that agency, and the president, under control. And there already is a branch of government assigned to decide what's legal. It's called the judiciary. The law itself is clear: spying on Americans without a warrant is illegal.

    One of the oddest moments in Mr. Bush's defense of domestic spying came when he told his audience in Nashville, "If I was trying to pull a fast one on the American people, why did I brief Congress?" He did not mention that some lawmakers protested the spying at the briefings, or that they found them inadequate. The audience members who laughed and applauded Mr. Bush's version of the truth may have forgot that he said he briefed Congress fully on weapons of mass destruction in Iraq. We know how that turned out.

[Avery L. Breath]

Senate Session on Security Erupts in Spying Debate
    By Scott Shane
    The New York Times

    Friday 03 February 2006

    Washington - Senate Democrats on Thursday angrily accused the Bush administration of mounting a public relations campaign to defend the National Security Agency's domestic surveillance program while withholding details of the secret eavesdropping from Congressional oversight committees.

    An annual hearing on national security threats, led for the first time by John D. Negroponte, director of national intelligence, was overtaken by acrimonious partisan debate about the program. In response to the Democrats' complaints, Republicans and top administration intelligence officials said the real problem was leaks about N.S.A. eavesdropping and other classified matters.

    Senator John D. Rockefeller IV of West Virginia, the Senate Intelligence Committee's ranking Democrat, compared the administration's public disclosures of limited information about the N.S.A. program in the six weeks since it was first disclosed to what he described as a similarly misleading use of intelligence before the war in Iraq.

    "I am deeply troubled by what I see as the administration's continued effort to selectively release intelligence information that supports its policy or political agenda while withholding equally pertinent information that does not do that," Mr. Rockefeller said.

    Another Democrat, Senator Dianne Feinstein of California, said the administration had engaged in "consistent stonewalling" to prevent the Intelligence and Judiciary Committees from carrying out their oversight duties. Senator Carl Levin of Michigan, suggested the administration's public accounts of the eavesdropping program were contradictory, noting that President Bush had described the agency's interception, without court warrants, of "a few" messages, while Michael Chertoff, the homeland security secretary, had referred to "thousands" of messages.

    But none of the Republicans on the panel joined the Democrats in their criticism. And in a statement issued later, Senator Pat Roberts, the Kansas Republican who is chairman of the committee, accused Mr. Rockefeller and other Democrats of derailing the discussion about security threats with their concerns about the eavesdropping program.

    "I am concerned that some of my Democrat colleagues used this unique public forum to make clear that they believe the gravest threat we face is not Osama bin Laden and Al Qaeda, but rather the president of the United States," Mr. Roberts said. "There is no doubt in my mind there are marching orders to the minority members of this committee to question and attack, at every opportunity, the president, the vice president, the secretary of state, attorney general and now members of our intelligence agencies."

    At the four-hour hearing, Mr. Negroponte and other senior intelligence officials made clear that the decision to limit briefings on the eavesdropping program to just eight members of Congress - the leaders of the Senate and House and the heads of the Intelligence Committees from both parties - had been made by President Bush and Vice President Dick Cheney. He also objected to the Democrats' characterization of the program.

    "This was not about domestic surveillance," Mr. Negroponte said. "It was about dealing with the terrorist threat in the most agile and effective way possible."

    While the Senate Judiciary Committee has scheduled a public hearing next week to explore legal issues surrounding the N.S.A. program, the entire Senate Intelligence Committee has not yet been briefed on it. Mr. Roberts tried to head off the Democratic attack by announcing that the panel would be briefed in closed session on the program on Feb. 9 by Attorney General Alberto R. Gonzales and Gen. Michael V. Hayden, principal deputy director of national intelligence. In addition, he said, the committee would hold a closed business session on Feb. 16 to discuss whether to hold further hearings or open an inquiry into the program, as Mr. Rockefeller has urged.

    Mr. Roberts and other Republicans said that the most serious issue was the unauthorized leak of sensitive information on intelligence.

    Porter J. Goss, the C.I.A. director, concurred, asserting that leaks had done "very severe" damage to national security and declared that the leakers would be found.

    "I've called in the F.B.I., the Department of Justice," Mr. Goss said. "It is my aim and it is my hope that we will witness a grand jury investigation with reporters present, being asked to reveal who is leaking this information."

    Mr. Negroponte's recitation of a 25-page prepared text on threats to the nation, including Al Qaeda as well as nuclear weapons programs of Iran and North Korea, contained few surprises. He called terrorism the "pre-eminent threat" and warned of the consequences of failure in the effort to create a stable Iraq.

    "We assess that should the jihadists thwart the Iraqis' efforts to establish a stable political and security environment, they could secure an operational base in Iraq and inspire sympathizers elsewhere to move beyond rhetoric to attempt attacks against neighboring Middle Eastern nations, Europe, and even the United States," said Mr. Negroponte, a former ambassador to Iraq.

    But as soon as senators were permitted to question Mr. Negroponte and other spy chiefs who flanked him, an emotional debate ensued over the conduct of the intelligence agencies and the proper degree of public and Congressional knowledge of their activities.

    President Bush approved the eavesdropping without warrants shortly after the 2001 terrorist attacks, but since the program's existence was revealed in December by The New York Times, some legal experts and members of Congress have asserted that it violates the Foreign Intelligence Surveillance Act.

    In a pointed exchange, Senator Russell D. Feingold, Democrat of Wisconsin, asked Mr. Negroponte whether there were any other "intelligence collection" programs that had not been revealed to the full Intelligence Committees.

    Mr. Negroponte replied, "Senator, I don't know if I can comment on that in open session."

    In other action on national security, the Senate voted 95 to 1 on Thursday night for a second five-week extension of the antiterrorism law known as the USA Patriot Act. The extension, which was approved by the House on Wednesday, now goes to President Bush to be signed into law. It gives negotiators until March 10 to work out a deal.


  -------

[Avery L. Breath]

Here's what a tribe of constitutional  scholars have to say........

Dear Members of Congress:

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush Administration's National Security Agency domestic spying program, as reported in the New York Times, and in particular to respond to the Justice Department's December 22, 2005 letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program. Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. 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. S. Rep. No. 95-604, pt. 1, at 9 (1977).

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance--but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the "exclusive means by which electronic surveillance ... may be conducted," 18 U.S.C. § 2511(2)(f) (emphasis added).

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President's inherent constitutional authority as Commander in Chief to collect "signals intelligence" targeted at the enemy, and maintains that construing FISA to prohibit the President's actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President's actions here.

I. CONGRESS DID NOT IMPLICITLY AUTHORIZE THE NSA DOMESTIC SPYING PROGRAM IN THE AUMF, AND IN FACT EXPRESSLY PROHIBITED IT IN FISA

The DOJ concedes (Letter at 4) that the NSA program involves "electronic surveillance," which is defined in FISA to mean the interception of the contents of telephone, wire, or email communications that occur, at least in part, in the United States. 50 U.S.C. §§ 1801(f)(1)-(2), 1801(n). NSA engages in such surveillance without judicial approval, and apparently without the substantive showings that FISA requires--e.g., that the subject is an "agent of a foreign power." Id. § 1805(a). The DOJ does not argue that FISA itself authorizes such electronic surveillance; and, as the DOJ letter acknowledges, 18 U.S.C. § 1809 makes criminal any electronic surveillance not authorized by statute.

The DOJ nevertheless contends that the surveillance is authorized by the AUMF, signed on September 18, 2001, which empowers the President to use "all necessary and appropriate force against" al Qaeda. According to the DOJ, collecting "signals intelligence" on the enemy, even if it involves tapping U.S. phones without court approval or probable cause, is a "fundamental incident of war" authorized by the AUMF. This argument fails for four reasons.

First, and most importantly, the DOJ's argument rests on an unstated general "implication" from the AUMF that directly contradicts express and specific language in FISA. Specific and "carefully drawn" statutes prevail over general statutes where there is a conflict. Morales v. TWA, Inc., 504 U.S. 374, 384-85 (1992) (quoting International Paper Co. v. Ouelette, 479 U.S. 481, 494 (1987)). In FISA, Congress has directly and specifically spoken on the question of domestic warrantless wiretapping, including during wartime, and it could not have spoken more clearly.

As noted above, Congress has comprehensively regulated all electronic surveillance in the United States, and authorizes such surveillance only pursuant to specific statutes designated as the "exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." 18 U.S.C. § 2511(2)(f) (emphasis added). Moreover, FISA specifically addresses the question of domestic wiretapping during wartime. In a provision entitled "Authorization during time of war," FISA dictates that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. § 1811 (emphasis added). Thus, even where Congress has declared war--a more formal step than an authorization such as the AUMF--the law limits warrantless wiretapping to the first fifteen days of the conflict. Congress explained that if the President needed further warrantless surveillance during wartime, the fifteen days would be sufficient for Congress to consider and enact further authorization. Rather than follow this course, the President acted unilaterally and secretly in contravention of FISA's terms. The DOJ letter remarkably does not even mention FISA's fifteen-day war provision, which directly refutes the President's asserted "implied" authority.

In light of the specific and comprehensive regulation of FISA, especially the fifteen-day war provision, there is no basis for finding in the AUMF's general language implicit authority for unchecked warrantless domestic wiretapping. As Justice Frankfurter stated in rejecting a similar argument by President Truman when he sought to defend the seizure of the steel mills during the Korean War on the basis of implied congressional authorization: "It is one thing to draw an intention of Congress from general language and to say that Congress would have explicitly written what is inferred, where Congress has not addressed itself to a specific situation. It is quite impossible, however, when Congress did specifically address itself to a problem, as Congress did to that of seizure, to find secreted in the interstices of legislation the very grant of power which Congress consciously withheld. To find authority so explicitly withheld is ... to disrespect the whole legislative process and the constitutional division of authority between President and Congress." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 609 (1952) (Frankfurter, J., concurring).

Second, the DOJ's argument would require the conclusion that Congress implicitly and sub silentio repealed 18 U.S.C. § 2511(2)(f), the provision that identifies FISA and specific criminal code provisions as "the exclusive means by which electronic surveillance . . . may be conducted." Repeals by implication are strongly disfavored; they can be established only by "overwhelming evidence," J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int'l, Inc., 534 U.S. 124, 137 (2001), and "'the only permissible justification for a repeal by implication is when the earlier and later statutes are irreconcilable,'" id. at 141-142 (quoting Morton v. Mancari, 417 U.S. 535, 550 (1974)). The AUMF and § 2511(2)(f) are not irreconcilable, and there is no evidence, let alone overwhelming evidence, that Congress intended to repeal § 2511(2)(f).

Third, 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.

Finally, the DOJ's reliance upon Hamdi v. Rumsfeld, 542 U.S. 507 (2004), to support its reading of the AUMF, see DOJ Letter at 3, is misplaced. A plurality of the Court in Hamdi held that the AUMF authorized military detention of enemy combatants captured on the battlefield abroad as a "fundamental incident of waging war." Id. at 519. The plurality expressly limited this holding to individuals who were "part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there." Id. at 516 (emphasis added). It is one thing, however, to say that foreign battlefield capture of enemy combatants is an incident of waging war that Congress intended to authorize. It is another matter entirely to treat unchecked warrantless domestic spying as included in that authorization, especially where an existing statute specifies that other laws are the "exclusive means" by which electronic surveillance may be conducted and provides that even a declaration of war authorizes such spying only for a fifteen-day emergency period.

II. CONSTRUING FISA TO PROHIBIT WARRANTLESS DOMESTIC WIRETAPPING DOES NOT RAISE ANY SERIOUS CONSTITUTIONAL QUESTION, WHEREAS CONSTRUING THE AUMF TO AUTHORIZE SUCH WIRETAPPING WOULD RAISE SERIOUS QUESTIONS UNDER THE FOURTH AMENDMENT

The DOJ argues that FISA and the AUMF should be construed to permit the NSA program's domestic surveillance because otherwise there might be a "conflict between FISA and the President's Article II authority as Commander-in-Chief." DOJ Letter at 4. The statutory scheme described above is not ambiguous, and therefore the constitutional avoidance doctrine is not even implicated. See United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 494 (2001) (the "canon of constitutional avoidance has no application in the absence of statutory ambiguity"). But were it implicated, it would work against the President, not in his favor. Construing FISA and the AUMF according to their plain meanings raises no serious constitutional questions regarding the President's duties under Article II. Construing the AUMF to permit unchecked warrantless wiretapping without probable cause, however, would raise serious questions under the Fourth Amendment.

A. FISA's Limitations Are Consistent with the President's Article II Role

We do not dispute that, absent congressional action, the President might have inherent constitutional authority to collect "signals intelligence" about the enemy abroad. Nor do we dispute that, had Congress taken no action in this area, the President might well be constitutionally empowered to conduct domestic surveillance directly tied and narrowly confined to that goal--subject, of course, to Fourth Amendment limits. Indeed, in the years before FISA was enacted, the federal law involving wiretapping specifically provided that "[n]othing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President . . . to obtain foreign intelligence information deemed essential to the security of the United States." 18 U.S.C. § 2511(3) (1976).

But FISA specifically repealed that provision. FISA § 201(c), 92 Stat. 1797, and replaced it with language dictating that FISA and the criminal code are the "exclusive means" of conducting electronic surveillance. In doing so, Congress did not deny that the President has constitutional power to conduct electronic surveillance for national security purposes; rather, Congress properly concluded that "even if the President has the inherent authority in the absence of legislation to authorize warrantless electronic surveillance for foreign intelligence purposes, Congress has the power to regulate the conduct of such surveillance by legislating a reasonable procedure, which then becomes the exclusive means by which such surveillance may be conducted." H.R. Rep. No. 95-1283, pt. 1, at 24 (1978) (emphasis added). This analysis, Congress noted, was "supported by two successive Attorneys General." Id.

To say that the President has inherent authority does not mean that his authority is exclusive, or that his conduct is not subject to statutory regulations enacted (as FISA was) pursuant to Congress's Article I powers. As Justice Jackson famously explained in his influential opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (Jackson, J., concurring), the Constitution "enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress." For example, the President in his role as Commander in Chief directs military operations. But the Framers gave Congress the power to prescribe rules for the regulation of the armed and naval forces, Art. I, § 8, cl. 14, and if a duly enacted statute prohibits the military from engaging in torture or cruel, inhuman, and degrading treatment, the President must follow that dictate. As Justice Jackson wrote, when the President acts in defiance of "the expressed or implied will of Congress," his power is "at its lowest ebb." 343 U.S. at 637. In this setting, Jackson wrote, "Presidential power [is] most vulnerable to attack and in the least favorable of possible constitutional postures." Id. at 640.

Congress plainly has authority to regulate domestic wiretapping by federal agencies under its Article I powers, and the DOJ does not suggest otherwise. Indeed, when FISA was enacted, the Justice Department agreed that Congress had power to regulate such conduct, and could require judicial approval of foreign intelligence surveillance. FISA does not prohibit foreign intelligence surveillance, but merely imposes reasonable regulation to protect legitimate privacy rights. (For example, although FISA generally requires judicial approval for electronic surveillance of persons within the United States, it permits the executive branch to install a wiretap immediately so long as it obtains judicial approval within 72 hours. 50 U.S.C. § 1805(f).)

Just as the President is bound by the statutory prohibition on torture, he is bound by the statutory dictates of FISA. The DOJ once infamously argued that the President as Commander in Chief could ignore even the criminal prohibition on torture, and, more broadly still, that statutes may not "place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." But the administration withdrew the August 2002 torture memo after it was disclosed, and for good reason the DOJ does not advance these extreme arguments here. Absent a serious question about FISA's constitutionality, there is no reason even to consider construing the AUMF to have implicitly overturned the carefully designed regulatory regime that FISA establishes. See, e.g., Reno v. Flores, 507 U.S. 292, 314 n.9 (1993) (constitutional avoidance canon applicable only if the constitutional question to be avoided is a serious one, "not to eliminate all possible contentions that the statute might be unconstitutional") (emphasis in original; citation omitted).

B. Construing the AUMF to Authorize Warrantless Domestic Wiretapping Would Raise Serious Constitutional Questions

The principle that ambiguous statutes should be construed to avoid serious constitutional questions works against the administration, not in its favor. Interpreting the AUMF and FISA to permit unchecked domestic wiretapping for the duration of the conflict with al Qaeda would certainly raise serious constitutional questions. The Supreme Court has never upheld such a sweeping power to invade the privacy of Americans at home without individualized suspicion or judicial oversight.

The NSA surveillance program permits wiretapping within the United States without either of the safeguards presumptively required by the Fourth Amendment for electronic surveillance--individualized probable cause and a warrant or other order issued by a judge or magistrate. The Court has long held that wiretaps generally require a warrant and probable cause. Katz v. United States, 389 U.S. 347 (1967). And the only time the Court considered the question of national security wiretaps, it held that the Fourth Amendment prohibits domestic security wiretaps without those safeguards. United States v. United States Dist. Court, 407 U.S. 297 (1972). Although the Court in that case left open the question of the Fourth Amendment validity of warrantless wiretaps for foreign intelligence purposes, its precedents raise serious constitutional questions about the kind of open-ended authority the President has asserted with respect to the NSA program. See id. at 316-18 (explaining difficulty of guaranteeing Fourth Amendment freedoms if domestic surveillance can be conducted solely in the discretion of the executive branch).

Indeed, serious Fourth Amendment questions about the validity of warrantless wiretapping led Congress to enact FISA, in order to "provide the secure framework by which the executive branch may conduct legitimate electronic surveillance for foreign intelligence purposes within the context of this nation's commitment to privacy and individual rights." S. Rep. No. 95-604, pt. 1, at 15 (1977) (citing, inter alia, Zweibon v, Mitchell, 516 F.2d 594 (D.C. Cir. 1975), in which "the court of appeals held that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of, nor acting in collaboration with, a foreign power").

Relying on In re Sealed Case No. 02-001, the DOJ argues that the NSA program falls within an exception to the warrant and probable cause requirement for reasonable searches that serve "special needs" above and beyond ordinary law enforcement. But the existence of "special needs" has never been found to permit warrantless wiretapping. "Special needs" generally excuse the warrant and individualized suspicion requirements only where those requirements are impracticable and the intrusion on privacy is minimal. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873 (1987). Wiretapping is not a minimal intrusion on privacy, and the experience of FISA shows that foreign intelligence surveillance can be carried out through warrants based on individualized suspicion..

The court in Sealed Case upheld FISA itself, which requires warrants issued by Article III federal judges upon an individualized showing of probable cause that the subject is an "agent of a foreign power." The NSA domestic spying program, by contrast, includes none of these safeguards. It does not require individualized judicial approval, and it does not require a showing that the target is an "agent of a foreign power." According to Attorney General Gonzales, the NSA may wiretap any person in the United States who so much as receives a communication from anyone abroad, if the administration deems either of the parties to be affiliated with al Qaeda, a member of an organization affiliated with al Qaeda, "working in support of al Qaeda," or "part of" an organization or group "that is supportive of al Qaeda." Under this reasoning, a U.S. citizen living here who received a phone call from another U.S. citizen who attends a mosque that the administration believes is "supportive" of al Qaeda could be wiretapped without a warrant. The absence of meaningful safeguards on the NSA program at a minimum raises serious questions about the validity of the program under the Fourth Amendment, and therefore supports an interpretation of the AUMF that does not undercut FISA's regulation of such conduct.
* *
In conclusion, the DOJ letter 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, as it did with other aspects of FISA in the Patriot Act, and as Congress expressly contemplated when it enacted the wartime wiretap provision in FISA. 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.

We hope you find these views helpful to your consideration of the legality of the NSA domestic spying program.


Sincerely,

Curtis A. Bradley
Richard and Marcy Horvitz Professor of Law, Duke University*
Former Counselor on International Law in the State Department Legal Adviser's Office, 2004

David Cole
Professor of Law, Georgetown University Law Center

Walter Dellinger
Douglas Blount Maggs Professor of Law, Duke University
Former Assistant Attorney General, Office of Legal Counsel,1993-1996
Former Acting Solicitor General of the United States, 1996-97

Ronald Dworkin
Frank Henry Sommer Professor, New York University Law School

Richard Epstein
James Parker Hall Distinguished Service Professor, University of Chicago Law School
Peter and Kirsten Bedford Senior Fellow, Hoover Institution

Harold Hongju Koh
Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School
Former Assistant Secretary of State for Democracy, Human Rights and Labor 1998-2001
Former Attorney-Adviser, Office of Legal Counsel, DOJ, 1983-85

Philip B. Heymann
James Barr Ames Professor, Harvard Law School
Former Deputy Attorney General, 1993-94

Martin S. Lederman
Visiting Professor, Georgetown University Law Center
Former Attorney Advisor, Department of Justice Office of Legal Counsel, 1994-2002

Beth Nolan
Former Counsel to the President, 1999-2001; Deputy Assistant Attorney General, Office of Legal Counsel, 1996-1999; Associate Counsel to the President, 1993-1995; Attorney Advisor, Office of Legal Counsel, 1981-1985

William S. Sessions
Former Director, FBI
Former Chief United States District Judge, Western District of Texas

Geoffrey R. Stone
Harry Kalven, Jr. Distinguished Service Professor of Law, University of Chicago
Former Dean of the University of Chicago Law School and Provost of the University of Chicago

Kathleen M. Sullivan
Stanley Morrison Professor, Stanford Law School
Former Dean, Stanford Law School

Laurence H. Tribe
Carl M. Loeb University Professor and Professor of Constitutional Law
Harvard Law School

William W. Van Alstyne
Lee Professor, William and Mary Law School
Former Attorney, Department of Justice, 1958

[TooStonedToType]

The question Bush is avoiding:  Why does anyone think that spying without a warrant is more effective in reducing terrorism than spying with a warrant?  "Operational details" seems to be the key phrase of today.  Often used in sentences like, "I can't answer that without revealing operational details."

The Foreign Intelligence Surveillance Act requires the President to obtain a warrant for spying on Americans. The purpose of the law, enacted in response to Nixon, is to prevent a president from spying for political reasons.  Therefore, would it not seem likely; the disclosure of the so-called operational details would reveal spying on Americans for political reasons?  Most likely though extensive data-mining techniques.  What else could it be?

[Avery L. Breath]

The question Bush is avoiding:  Why does anyone think that spying without a warrant is more effective in reducing terrorism than spying with a warrant?  

Yeah, he's answered that in round about ways, but nothing concrete or convincing for sure.  What kills me is how when one answer he gives doesn't hold up to scrutiny, he give another one, exc. exc. exc.  His newest ploy is to garner public support for the program by selectively and conveniently releasing a so called newly declassified foiled terrorist plot from 4 years ago, that the nsa prolly didn't have anything to do with.  It's getting to the point where even his loyalists are sceptical of everything that comes out of his pie hole.