Tuesday, December 20, 2005

Surveillance and the Law

Many thanks to Kevin Drum for his lucid explication of the best thinking on legal status of the National Security Agency’s domestic electronic spying program.  The New York Times sat on the story for more than a year, and yet when the finally published, their reporting of the legal issues involved was a confused jumble.

Drum explains that 1. the program probably doesn’t violate the Fourth Amendment, given current interpretation of the law; 2. the program definitely does violate the Federal Intelligence Surveillance Act, and 3. the President has no constitutional powers allowing him to override FISA.

George Will asks the right question—if he really believed it was necessary to conduct this program, then why didn’t he ask Congress to give him the legal authority.  I could accept it if he had started the program after 9/11, while simultaneously asking Congress for authorization.  I can’t accept, however, that he unilaterally implemented the program and never bothered to ask Congress to change the law.  This is criminal behavior.
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