A view on NSA Spying
The New York Review of Books: ON NSA SPYING: A LETTER TO CONGRESS
A collection of constitutional law scholars and former government officials published this letter to Congress in the New York Review of Books. I would love to post the whole thing, but I don’t want to run afoul of their permissions rules.
The administration’s argument that the 2001 AUMF authorization of the use of force somehow grants permission for the NSA spying program fails for many reasons.
Attorney General Alberto Gonzales has admitted that the administration didn’t even seek to amend FISA because it was advised Congress would reject such amendment. How can he argue that Congress authorized it already when they were clearly conscious that Congress would say no if they asked? (Isn’t that called premeditation?)
The clear and specific view of Congress in the language of FISA isn’t trumped by an implicit or unstated one. Domestic surveillance during wartime has been specifically addressed under FISA as the exclusive means under which it may not be a criminal act. The power to do what has been done under the NSA Program has been explicitly withheld. Congress has already spoken, and used their power to regulate the exclusive means by which domestic surveillance can be conducted. Absent any evidence that Congress intended to repeal those provisions, they take precedence.
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.
The FISA statue specifically allows for wartime domestic electronic surveillance – but only for the first 15 days of a war. (Again, where is the declaration of war?) They further maintain that the President (even in his role as Commander in Chief) can only act against FISA where his authority is exclusive (not subject to the check of statutory regulation). This is not the case for domestic spying. In addition, both the constitutional protections of probable cause and judicial order and/or oversight have been ignored by this program.
The letter goes on to discuss all of this in some detail. I missed it when it first came out, so here’s a deep bow to TJJA (as always) for alerting me.