Thursday, May 11, 2006

Interesting Development

Reuters is reporting that the NSA keeps a database of telephone calls made by American citizens. For some reason this doesn't surprise me, especially after the New York Times report detailing the NSA program. Another Reuters report indicates that the President thinks this program is entirely within the law. Since the President is not a Lawyer, we can assume that this is the position of the Justice Department. The Justice Department asserts that this program is within the ambit of the Foreign Intelligence Surveillance Act, or FISA. FISA creates a system of special courts that issue orders that permit foreign surveillance and searches in foreign nations, and was designed to require the foreign intelligence units in the government to comply with the warrant requirement of the Fourth Amendment. Section 1802(a)(1) indicates that the FISA program only applies in situations were the NSA is collecting information on foreign organizations or entities. The Justice Department asserts in their letter that part of this section of FISA permits the Domestic Spying program because another statute provides the President with the power to act. This statute is the Authorization for Use of Military Force signed by Congress on September 18, 2001. Section 2(a) provides the president with

...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.
A letter to Congress from a group of Constitutional Law Scholars and former government officials indicates that the AUMF was not meant to get the President carte blanche as Section 2(a) seems to indicate. Especially since this authorization was issued pursuant to the War Powers Resolution of 1973, a law created to reign in the President's power to make war.

All of this means two things. First, if FISA does apply to surveillance of American Citizens, the AUMF doesn't permit the President to avoid the FISA system, and would require every domestic wire tap to go through the FISA courts. Second, if FISA does not apply to the NSA domestic spying program, then the NSA spying program is subject to the restrictions of the Fourth Amendment. If the former is true, then it's clear that the President is disregarding the AUMF and the requirements of FISA, which places the President in violation of laws created by Congress. If the president is in violation of a law of Congress, he is in violation of his duties as President. However, if FISA doesn't apply, the program must satisfy the Fourth Amendment. It's also clear that the President has not, to anyone's knowledge, obtained warrants for the NSA program. This means the NSA, and the President, are in violation of the Fourth Amendment, and in violation of the President's Constitutional duty.

This post only covers the specific legal issues involved with the NSA program. For anyone interested in a more specific breakdown of what has been going on with the program today, please see the Wikipedia article on the subject.


kim said...

my comment about this is actually about the standing issue - because if the government isn't actually using the information against you, do you really have standing to challenge it under the 4th amendment even if it is a violation? the cases in carter's class seem to suggest that you wouldn' would be more of a civil rights issue, it seems to me...but i could be looking at it the wrong way...

The Donnybrook said...

No, actually thats a good. Unless the Government attempts to use the information against an American citizen, there isn't a right to challenge the validity of the information and its collection. This would only activate the exclusionary rule. However, the Electronic Frontier Foundation and the American Civil Liberties Union have filed class actions for the civil rights violation. The real question is how you police the President when the Constitution fails to give a remedy notwithstanding impeachment. We will just have to wait and see.

The Donnybrook said...

Sorry, I can't type, but Kim does make a very good point about the standing to sue in this kind of case.