Saturday, December 17, 2005

Confusion About Surveillance

Here at Citizen Cain, we’re confused by the whole issue of the Bush Administration’s authorization of domestic electronic surveillance.

First off, it appears that it is illegal to conduct electronic surveillance except as authorized by statute. Under the Foreign Intelligence Surveillance Act, a government official who conducts electronic surveillance must be able to show that he was “engaged in the course of his official duties and the electronic surveillance was authorized by and conducted pursuant to a search warrant or court order of a court of competent jurisdiction.”

President Bush overrode this law in 2002, using a secret executive order. The order authorized the National Security Agency to conduct electronic surveillance against U.S. citizens and foreign nationals, despite, as the Washington Post puts it, “previous legal prohibitions against such domestic spying, sources with knowledge of the program said last night.”

Question #1: How is it possible for a law can to be overridden by executive order. This seems astonishing.

According to the New York Times, the Bush administration’s justification for ignoring the law includes the following:

President Bush did not ask Congress to include provisions for the N.S.A. domestic surveillance program as part of the Patriot Act and has not sought any other laws to authorize the operation. Bush administration lawyers argued that such new laws were unnecessary, because they believed that the Congressional resolution on the campaign against terrorism provided ample authorization, officials said.
But here is the relevant text of the Authorization for Military Force that Congress passed on September 18, 2001:
Now, therefore, be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled . . .
a) IN GENERAL- That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements-
(1) SPECIFIC STATUTORY AUTHORIZATION- Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS- Nothing in this resolution supercedes any requirement of the War Powers Resolution.

Question #2: How could this authorization for use of force against al Qaeda be interpreted to allow for warrantless electronic surveillance.

The New York Times says that administration lawyers developed a theory that:
the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority.

Support for this theory, the Times said, came from a decision in an unrelated matter by the Foreign Intelligence Surveillance Court of Review. The court referred in this decision to "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance." The Court decision, moreover, appears to say the authority to conduct such warrantless surveillance is well accepted law, and that this applies under some circumstances to domestic intelligence surveillance.

Question #3: If the Foreign Intelligence Surveillance Act’s requirement for warrants contradicts “the president’s inherent constitutional authority,” why hasn’t it been challenged on constitutional grounds? Can the president simply ignore a law because he thinks it’s unconstitutional?

Can a lawyer help me out, or point to something that explains this? The newspaper accounts just aren’t sorting it out sufficiently.